10000	----	A note from Michael Hart, preparer of the 0.1 version. This file contains a number of versions of the Magna Carta, some of which were a little mangled in transit. I am sure our volunteers will find and correct errors I didn't catch, and that version 0.2 - 1.0 will have significant improvements, as well as at least one more version in Latin. Version 1.0 may contain a dozen different versions. The Text of Magna Carta JOHN, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, stewards, servants, and to all his officials and loyal subjects, Greeting. KNOW THAT BEFORE GOD, for the health of our soul and those of our ancestors and heirs, to the honour of God, the exaltation of the holy Church, and the better ordering of our kingdom, at the advice of our reverend fathers Stephen, archbishop of Canterbury, primate of all England, and cardinal of the holy Roman Church, Henry archbishop of Dublin, William bishop of London, Peter bishop of Winchester, Jocelin bishop of Bath and Glastonbury, Hugh bishop of Lincoln, Walter Bishop of Worcester, William bishop of Coventry, Benedict bishop of Rochester, Master Pandulf subdeacon and member of the papal household, Brother Aymeric master of the knighthood of the Temple in England, William Marshal earl of Pembroke, William earl of Salisbury, William earl of Warren, William earl of Arundel, Alan de Galloway constable of Scotland, Warin Fitz Gerald, Peter Fitz Herbert, Hubert de Burgh seneschal of Poitou, Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip Daubeny, Robert de Roppeley, John Marshal, John Fitz Hugh, and other loyal subjects: (1) FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church's elections - a right reckoned to be of the greatest necessity and importance to it - and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity. TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs: (2) If any earl, baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a `relief', the heir shall have his inheritance on payment of the ancient scale of `relief'. That is to say, the heir or heirs of an earl shall pay 100 for the entire earl's barony, the heir or heirs of a knight 100s. at most for the entire knight's `fee', and any man that owes less shall pay less, in accordance with the ancient usage of `fees' (3) But if the heir of such a person is under age and a ward, when he comes of age he shall have his inheritance without `relief' or fine. (4) The guardian of the land of an heir who is under age shall take from it only reasonable revenues, customary dues, and feudal services. He shall do this without destruction or damage to men or property. If we have given the guardianship of the land to a sheriff, or to any person answerable to us for the revenues, and he commits destruction or damage, we will exact compensation from him, and the land shall be entrusted to two worthy and prudent men of the same `fee', who shall be answerable to us for the revenues, or to the person to whom we have assigned them. If we have given or sold to anyone the guardianship of such land, and he causes destruction or damage, he shall lose the guardianship of it, and it shall be handed over to two worthy and prudent men of the same `fee', who shall be similarly answerable to us. (5) For so long as a guardian has guardianship of such land, he shall maintain the houses, parks, fish preserves, ponds, mills, and everything else pertaining to it, from the revenues of the land itself. When the heir comes of age, he shall restore the whole land to him, stocked with plough teams and such implements of husbandry as the season demands and the revenues from the land can reasonably bear. (6) Heirs may be given in marriage, but not to someone of lower social standing. Before a marriage takes place, it shall be' made known to the heir's next-of-kin. (7) At her husband's death, a widow may have her marriage portion and inheritance at once and without trouble. She shall pay nothing for her dower, marriage portion, or any inheritance that she and her husband held jointly on the day of his death. She may remain in her husband's house for forty days after his death, and within this period her dower shall be assigned to her. (8) No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without the consent of whatever other lord she may hold them of. (9) Neither we nor our officials will seize any land or rent in payment of a debt, so long as the debtor has movable goods sufficient to discharge the debt. A debtor's sureties shall not be distrained upon so long as the debtor himself can discharge his debt. If, for lack of means, the debtor is unable to discharge his debt, his sureties shall be answerable for it. If they so desire, they may have the debtor's lands and rents until they have received satisfaction for the debt that they paid for him, unless the debtor can show that he has settled his obligations to them. (10) If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom he holds his lands. If such a debt falls into the hands of the Crown, it will take nothing except the principal sum specified in the bond. (11) If a man dies owing money to Jews, his wife may have her dower and pay nothing towards the debt from it. If he leaves children that are under age, their needs may also be provided for on a scale appropriate to the size of his holding of lands. The debt is to be paid out of the residue, reserving the service due to his feudal lords. Debts owed to persons other than Jews are to be dealt with similarly. (12) No `scutage' or `aid' may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes only a reasonable `aid' may be levied. `Aids' from the city of London are to be treated similarly. (13) The city of London shall enjoy all its ancient liberties and free customs, both by land and by water. We also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs. (14) To obtain the general consent of the realm for the assessment of an `aid' - except in the three cases specified above - or a `scutage', we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter. To those who hold lands directly of us we will cause a general summons to be issued, through the sheriffs and other officials, to come together on a fixed day (of which at least forty days notice shall be given) and at a fixed place. In all letters of summons, the cause of the summons will be stated. When a summons has been issued, the business appointed for the day shall go forward in accordance with the resolution of those present, even if not all those who were summoned have appeared. (15) In future we will allow no one to levy an `aid' from his free men, except to ransom his person, to make his eldest son a knight, and (once) to marry his eldest daughter. For these purposes only a reasonable `aid' may be levied. (16) No man shall be forced to perform more service for a knight's `fee', or other free holding of land, than is due from it. (17) Ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place. (18) Inquests of novel disseisin, mort d'ancestor, and darrein presentment shall be taken only in their proper county court. We ourselves, or in our absence abroad our chief justice, will send two justices to each county four times a year, and these justices, with four knights of the county elected by the county itself, shall hold the assizes in the county court, on the day and in the place where the court meets. (19) If any assizes cannot be taken on the day of the county court, as many knights and freeholders shall afterwards remain behind, of those who have attended the court, as will suffice for the administration of justice, having regard to the volume of business to be done. (20) For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood. (21) Earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence. (22) A fine imposed upon the lay property of a clerk in holy orders shall be assessed upon the same principles, without reference to the value of his ecclesiastical benefice. (23) No town or person shall be forced to build bridges over rivers except those with an ancient obligation to do so. (24) No sheriff, constable, coroners, or other royal officials are to hold lawsuits that should be held by the royal justices. (25) Every county, hundred, wapentake, and tithing shall remain at its ancient rent, without increase, except the royal demesne manors. (26) If at the death of a man who holds a lay `fee' of the Crown, a sheriff or royal official produces royal letters patent of summons for a debt due to the Crown, it shall be lawful for them to seize and list movable goods found in the lay `fee' of the dead man to the value of the debt, as assessed by worthy men. Nothing shall be removed until the whole debt is paid, when the residue shall be given over to the executors to carry out the dead man's will. If no debt is due to the Crown, all the movable goods shall be regarded as the property of the dead man, except the reasonable shares of his wife and children. (27) If a free man dies intestate, his movable goods are to be distributed by his next-of-kin and friends, under the supervision of the Church. The rights of his debtors are to be preserved. (28) No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this. (29) No constable may compel a knight to pay money for castle-guard if the knight is willing to undertake the guard in person, or with reasonable excuse to supply some other fit man to do it. A knight taken or sent on military service shall be excused from castle-guard for the period of this service. (30) No sheriff, royal official, or other person shall take horses or carts for transport from any free man, without his consent. (31) Neither we nor any royal official will take wood for our castle, or for any other purpose, without the consent of the owner. (32) We will not keep the lands of people convicted of felony in our hand for longer than a year and a day, after which they shall be returned to the lords of the `fees' concerned. (33) All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast. (34) The writ called precipe shall not in future be issued to anyone in respect of any holding of land, if a free man could thereby be deprived of the right of trial in his own lord's court. (35) There shall be standard measures of wine, ale, and corn (the London quarter), throughout the kingdom. There shall also be a standard width of dyed cloth, russett, and haberject, namely two ells within the selvedges. Weights are to be standardised similarly. (36) In future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs. It shall be given gratis, and not refused. (37) If a man holds land of the Crown by `fee-farm', `socage', or `burgage', and also holds land of someone else for knight's service, we will not have guardianship of his heir, nor of the land that belongs to the other person's `fee', by virtue of the `fee-farm', `socage', or `burgage', unless the `fee-farm' owes knight's service. We will not have the guardianship of a man's heir, or of land that he holds of someone else, by reason of any small property that he may hold of the Crown for a service of knives, arrows, or the like. (38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it. (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. (40) To no one will we sell, to no one deny or delay right or justice. (41) All merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs. This, however, does not apply in time of war to merchants from a country that is at war with us. Any such merchants found in our country at the outbreak of war shall be detained without injury to their persons or property, until we or our chief justice have discovered how our own merchants are being treated in the country at war with us. If our own merchants are safe they shall be safe too. (42) In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. People that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants - who shall be dealt with as stated above - are excepted from this provision. (43) If a man holds lands of any `escheat' such as the `honour' of Wallingford, Nottingham, Boulogne, Lancaster, or of other `escheats' in our hand that are baronies, at his death his heir shall give us only the `relief' and service that he would have made to the baron, had the barony been in the baron's hand. We will hold the `escheat' in the same manner as the baron held it. (44) People who live outside the forest need not in future appear before the royal justices of the forest in answer to general summonses, unless they are actually involved in proceedings or are sureties for someone who has been seized for a forest offence. (45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well. (46) All barons who have founded abbeys, and have charters of English kings or ancient tenure as evidence of this, may have guardianship of them when there is no abbot, as is their due. (47) All forests that have been created in our reign shall at once be disafforested. River-banks that have been enclosed in our reign shall be treated similarly. (48) All evil customs relating to forests and warrens, foresters, warreners, sheriffs and their servants, or river-banks and their wardens, are at once to be investigated in every county by twelve sworn knights of the county, and within forty days of their enquiry the evil customs are to be abolished completely and irrevocably. But we, or our chief justice if we are not in England, are first to be informed. (49) We will at once return all hostages and charters delivered up to us by Englishmen as security for peace or for loyal service. ***here were some strange characters, not completely removed (50) We will remove completely from their offices the kinsmen of Gerard de Ath, Peter, Guy, and Andrew de Chanceaux, Guy de Cigogne, and in future they shall hold no offices in England. The people in question are Engelard de Cigogn, Geoffrey de Martigny and his brothers, Philip Marc and his brothers, with Geoffrey his nephew, and all their followers. * As soon as peace is restored, we will remove from the kingdom all the foreign knights, bowmen, their attendants, and the mercenaries that have come to it, to its harm, with horses and arms. * To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgement of his equals, we will at once restore these. In cases of dispute the matter shall be resolved by the judgement of the twenty-five barons referred to below in the clause for securing the peace. In cases, however, where a man was deprived or dispossessed of something without the lawful judgement of his equals by our father King Henry or our brother King Richard, and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to Crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the Cross as a Crusader. On our return from the Crusade, or if we abandon it, we will at once render justice in full. * We shall have similar respite in rendering justice in connexion with forests that are to be disafforested, or to remain forests, when these were first aforested by our father Henry or our brother Richard; with the guardianship of lands in another persons fee, when we have hitherto had this by virtue of a fee held of us for knights service by a third party; and with abbeys founded in another persons fee, in which the lord of the fee claims to own a right. On our return from the Crusade, or if we abandon it, we will at once do full justice to complaints about these matters. * No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband. * All fines that have been given to us unjustly and against the law of the land, and all fines that we have exacted unjustly, shall be entirely remitted or the matter decided by a majority judgement of the twenty-five barons referred to below in the clause for securing the peace together with Stephen, archbishop of Canterbury, if he can be present, and such others as he wishes to bring with him. If the archbishop cannot be present, proceedings shall continue without him, provided that if any of the twenty-five barons has been involved in a similar suit himself, his judgement shall be set aside, and someone else chosen and sworn in his place, as a substitute for the single occasion, by the rest of the twenty-five. * If we have deprived or dispossessed any Welshmen of lands, liberties, or anything else in England or in Wales, without the lawful judgement of their equals, these are at once to be returned to them. A dispute on this point shall be determined in the Marches by the judgement of equals. English law shall apply to holdings of land in England, Welsh law to those in Wales, and the law of the Marches to those in the Marches. The Welsh shall treat us and ours in the same way. * In cases where a Welshman was deprived or dispossessed of anything, without the lawful judgement of his equals, by our father King Henry or our brother King Richard, and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to Crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the Cross as a Crusader. But on our return from the Crusade, or if we abandon it, we will at once do full justice according to the laws of Wales and the said regions. * We will at once return the son of Llywelyn, all Welsh hostages, and the charters delivered to us as security for the peace. * With regard to the return of the sisters and hostages of Alexander, king of Scotland, his liberties and his rights, we will treat him in the same way as our other barons of England, unless it appears from the charters that we hold from his father William, formerly king of Scotland, that he should be treated otherwise. This matter shall be resolved by the judgement of his equals in our court. * All these customs and liberties that we have granted shall be observed in our kingdom in so far as concerns our own relations with our subjects. Let all men of our kingdom, whether clergy or laymen, observe them similarly in their relations with their own men. ***Strange characters may have ended here. SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security: * The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter. * If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us - or in our absence from the kingdom to the chief justice - to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us. * Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command. * If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were. * In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear. * The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power. * We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party. We have remitted and pardoned fully to all men any ill-will, hurt, or grudges that have arisen between us and our subjects, whether clergy or laymen, since the beginning of the dispute. We have in addition remitted fully, and for our own part have also pardoned, to all clergy and laymen any offences committed as a result of the said dispute between Easter 1215 AD and the restoration of peace. In addition we have caused letters patent to be made for the barons, bearing witness to this security and to the concessions set out above, over the seals of Stephen archbishop of Canterbury, Henry archbishop of Dublin, the other bishops named above, and Master Pandulf. IT IS ACCORDINGLY OUR WISH AND COMMAND that the English Church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fulness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever. Both we and the barons have sworn that all this shall be observed in good faith and without deceit. Witness the above mentioned people and many others. Given by our hand in the meadow that is called Runnymede, between Windsor and Staines, on the fifteenth day of June in the seventeenth year of our reign. *** [There were many missing spaces in this one, not sure I got them all] Magna Carta 1215 John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou, to the archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greeting. Know that, having regard to God and for the salvation of our soul, and those of all our ancestors and heirs, and unto the honor of God and the advancement of holy church, and for the reform of our realm, by advice of our venerable fathers, Stephen archbishop of Canterbury, primate of all England and cardinal of the holy Roman Church, Henry archbishop of Dublin, William of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, William of Coventry, Benedict of Rochester, bishops; of master Pandulf, subdeacon and member of the household of our lord the Pope, of brother Aymeric (master of the Knights of the Temple in England), and of the illustrious men William Marshall earl of Pembroke, William earl of Salisbury, William earl of Warenne, William earl of Arundel, Alan of Galloway (constable of Scotland), Waren Fitz Gerald, Peter Fits Herbert, Hubert de Burgh (seneschal of Poitou), Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip d'Aubigny, Robert of Roppesley, John Marshall, John Fitz Hugh, and others, our liegemen. 1. In the first place we have granted to God, and by this our present charter confirmed for us and our heirs for ever that the English church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the English church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III., before the quarrel arose between us and our barons: and this we will observe, and our will is that it be observed in good faith by our heirs for ever. We have also granted to all freemen of our kingdom, for us and our heirs for ever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs for ever. 2. If any of our earls or barons, or others holding of us in chief by military service shall have died, and at the time of his death his heir shall be of full age and owe "relief" he shall have his inheritance on payment of the ancient relief, namely the heir or heirs of an earl, 100 pounds for a whole earl's barony; the heir or heirs of a baron, 100 pounds for a whole barony; the heir or heirs of a knight, 100 shillings at most for a whole knight's fee; and whoever owes less let him give less, according to the ancient custom officers. 3. If, however, the heir of any of the aforesaid has been under age and in wardship, let him have his inheritance without relief and without fine when he comes of age. 4. The guardian of the land of an heir who is thus under age, shall take from the land of the heir nothing but reasonably produce, reasonable customs, and reasonable services, and that without destruction or waste of men or goods; and if we have committed the wardship of the lands of any such minor to the sheriff, or to any other who is responsible to us for its issues, and he has made destruction or waste of what he holds in wardship, we will take of him amends, and the land shall be committed to two lawful and discreet men of that fee, who shall be responsible for the issues to us or to him to whom we shall assign them; and if we have given or sold the wardship of any such land to anyone and he has there in made destruction or waste, he shall lose that wardship, and it shall be transferred to two lawful and discreet men of that fief, who shall be responsible to us in like manner as aforesaid. 5. The guardian, moreover, so long as he has the wardship of the land, shall keep up the houses, parks, fishponds, stanks, mills, and other things pertaining to the land, out of the issues of the same land; and he shall restore to the heir, when he has come to full age, all his land, stocked with ploughs and "waynage," according as the season of husbandry shall require, and the issues of the land can reasonably bear. 6. Heirs shall be married without disparagement, yet so that before the marriage takes place the nearest in blood to that heir shall have notice. 7. A widow, after the death of her husband, shall forthwith and without difficulty have her marriage portion and inheritance; nor shall she give anything for her dower, or for her marriage portion, or for the inheritance which her husband and she held on the day of the death of that husband; and she may remain in the house of her husband for fourty days after his death, within which time her dower shall be assigned to her. 8. No widow shall be compelled to marry, so long as she prefers to live without a husband; provided always that she gives security not to marry without our consent, if she holds of us, or without the consent of the lord of whom she holds, if she holds of another. 9. Neither we nor our bailiffs shall seize any land or rent for any debt, so long as the chattels of the debtor are sufficient to repay the debt; nor shall the sureties of the debtor be distrained so long as the principal debtor is able to satisfy the debt; and if the principal debtor shall fail to pay the debt, having nothing wherewith to pay it, then the sureties shall answer for the debt; and let them have the lands and rents of the debtor, if they desire them, until they are indemnified for the debt which they have paid for him, unless the principal debtor can show proof that he is discharged thereof as against the said sureties. 10. If one who has borrowed from the Jews any sum, great or small, die before that loan can be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold; and if the debt fall into our hands, we will not take anything except the principal sum contained in the bond. 11. And if any one die indebted to the Jews, his wife shall have her dower and pay nothing of that debt; and if any children of the deceased are left underage, necessaries shall be provided for them in keeping with the holding of the deceased; and out of the residue the debt shall be paid, reserving, however, service due to feudal lords; in like manner let it be done touching debts due to others than Jews. 12. No scutage nor aid shall be imposed on our kingdom, unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. In like manner it shall be done concerning aids from the city of London. 13. And the city of London shall have all its ancient liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. 14. And for obtaining the common counsel of the kingdom anent the assessing of an aid (except in the three cases aforesaid) or of a scutage, we will cause to be summoned the archbishops, bishops, abbots, earls, and greater barons, severally by our letters; and we will moreover cause to be summoned generally, through our sheriffs and bailiffs, all others who hold of us in chief, for a fixed date, namely, after the expiry of at least forty days, and at a fixed place; and in all letters of such summons we will specify the reason of the summons. And when the summons has thus been made, the business shall proceed on the day appointed, according to the counsel of such as are present, although not all who were summoned have come. 15. We will not for the future grant to any one license to take an aid from his own free tenants, except to ransom his body, to make his eldest son a knight, and once to marry his eldest daughter; and on each of these occasions there shall be levied only a reasonable aid. 16. No one shall be distrained for performance of greater service for a knight's fee, or for any other free tenement, than is due therefrom. 17. Common pleas shall not follow our court, but shall be held in some fixed place. 18. Inquests of novel disseisin, of mort d'ancester, and of darrein presentment, shall not be held elsewhere than in their own county courts and that in manner following,--We, or, if we should be out of the realm, our chief justiciar, will send two justiciars through every county four times a year, who shall, along with four knights of the county chosen by the county, hold the said assize in the county court, on the day and in the place of meeting of that court. 19. And if any of the said assizes cannot be taken on the day of the county court, let there remain of the knights and freeholders, who were present at the county court on that day, as many as may be required for the efficient making of judgments, according as the business be more or less. 20. A freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his "contentment;" and a merchant in the same way, saving his "merchandise;" and a villein shall be amerced in the same way, saving his "wainage"--if they have fallen into our mercy: and none of the aforesaid amercements shall be impsed except by the oath of honest men of the neighborhood. 21. Earls and barons shall not be amerced except through their peers, and only in accordance with the degree of the offense. 22. A clerk shall not be amerced in respect of his lay holding except after the manner of the others aforesaid; further, he shall not be amerced in accordance with the extent of his ecclesiastical benefice. 23. No village or individual shall be compelled to make bridges at river-banks, except those who from of old were legally bound to do so. 24. No sheriff, constable, coroners, or others of our bailiffs, shall hold pleas of our Crown. 25. All counties, hundreds, wapentakes, and trithings (except our demesne manors) shall remain at old rents, and without any additional payment.***here may be an error 26. If any one holding of us a lay fief shall die, and our sheriff or bailiff shall exhibit our letters patent of summons for a debt which the deceased owed to us, it shall be lawful for our sheriff or bailiff to attach and catalogue chattels of the deceased, found upon the lay fief, to the value of that debt, at the sight of law-worthy men, provided always that nothing whatever be then be removed until the debt which is evident shall be fully paid to us; and the residue shall be left to the executors to fulfil the will of the deceased; and if there be nothing due from him to us, all the chattels shall go to the deceased, saving to his wife and children their reasonable shares. 27. If any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest kinsfolk and friends, under supervision of the church, saving to every one the debts which the deceased owed to him. 28. No constable or other bailiff of ours shall take corn or other provisions from any one without immediately tendering money therefor, unless he can have postponement thereof by permission of the seller. 29. No constable shall compel any knight to give money in lieu of castle-guard, when he is willing to perform it in his own person, or (if he cannot do it from any reasonable cause) then by another responsible man. Further, if we have led or sent him upon military service, he shall be relieved from guard in proportion to the time during which he has been on service because of us. 30. No sheriff or bailiff of ours, or other person, shall take the horses or carts of any freeman for transport duty, against the will of the said freeman. 31. Neither we nor our bailiffs shall take, for our castles or for any other work of ours, wood which is not ours, against the will of the owner of that wood. 32. We will not retain beyond one year and one day, the lands of those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs. 33. All kiddles for the future shall be removed altogether from Thames and Medway, and throughout all England, except upon the seashore. 34. The writ which is called praecipe shall not for the future be issued to any one, regarding any tenement whereby a freeman may lose his court. 35. Let there be one measure of wine throughout our whole realm; and one measure of ale; and one measure of corn, to wit, "the London quarter;" and one width of cloth (whether dyed, or russet, or "halberget"), to wit, two ells within the selvages; of weights also let it be as of measures. 36. Nothing in future shall be given or taken for a writ of inquisition of life or limbs, but freely it shall be granted, and never denied. 37. If any one holds of us by fee-farm, by socage, or by burgage, and holds also land of another lord by knight's service, we will not (by reason of that fee-farm, socage, or burgage) have the wardship of the heir, or of such land of his as is of the fief of that other; nor shall we have wardship of that fee-farm, socage, or burgage, unless such fee-farm owes knight's service. We will not by reason of any small serjeanty which any one may hold of us by the service of rendering to us knives, arrows, or the like, have wardship of his heir of the land which he holds of another lord by knight's service. 38. No bailiff for the future shall, upon his own unsupported complaint, put any one to his "law," without credible witnesses brought for this purpose. 39. No freeman shall be taken or imprisoned or disseised or exiled or in anyway destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. 40. To no one will we sell, to no one will we refuse or delay, right or justice. 41. All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us. And if such are found in our land at the beginning of the war, they shall be detained, without injury to their bodies or goods, until information be received by us, or by our chief justiciar, how the merchants of our land found in the land at war with us are treated; and if our men are safe there, the others shall be safe in our land. 42. It shall be lawful in future for any one (excepting always those imprisoned or outlawed in accordance with the law of the kingdom, and natives of any country at war with us, and merchants, who shall be treated as is above provided) to leave our kingdom and to return, safe and secure by land and water, except for a short period in time of war, on grounds of public policy--reserving always the allegiance due to us. 43. If any one holding of some escheat (such as the honor of Wallingford, Nottingham, Boulogne, Lancaster, or of other escheats which are in our hands and are baronies) shall die, his heir shall give no other relief, and perform no other service to us than he would have done to the baron, if that barony had been in the baron's hand; and we shall hold it in the same manner in which the baron held it. 44. Men who dwell without the forest need not henceforth come before our justiciars of the forest upon a general summons, except those who are impleaded, or who have become sureties for any person or persons attached for forest offenses. 45. We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well. 46. All barons who have founded abbeys, concerning which they hold charters from the kings of England, or of which they have long-continued possession, shall have the wardship of them, when vacant, as they ought to have. 47. All forests that have been made such in our time shall forthwith be disafforested; and a similar course shall be followed with regard to river-banks that have been placed "in defense" by us in our time. 48. All evil customs connected with forests and warrens, foresters and warreners, sheriffs and their officers, river-banks and their wardens, shall immediately be inquired into in each county by twelve sworn knights of the same county chosen by the honest men of the same county, and shall, within forty days of the said inquest, be utterly abolished, so as never to be restored, provided always that we previously have intimation thereof, or our justiciar, if we should not be in England. 49. We will immediately restore all hostages and charters delivered to us by Englishmen, as sureties of the peace or of faithful service. 50. We will entirely remove from their bailiwicks, the relations of Gerard Athee (so that in future they shall have no bailiwick in England); namely, Engelard of Cigogne, Peter, Guy, and Andrew of Chanceaux, Guy of Cigogne, Geofrrey of Martigny with his brothers, Philip Mark with his brothers and his nephew Geoffrey, and the whole brood of the same. 51. As soon as peace is restored, we will banish from the kingdom all foreign-born knights, cross-bowmen, serjeants, and mercenary soldiers, who have come with horses and arms to the kingdom's hurt. 52. If any one has been dispossessed or removed by us, without the legal judgment of his peers, from his lands, castles, franchises, or from his right, we will immediately restore them to him; and if a dispute arise over this, then let it be decided by the five-and-twenty barons of whom mention is made below in the clause for securing the peace. Moreover, for all those possessions, from which any one has, without the lawful judgment of his peers, be endisseised or removed, by our father, King Henry, or by our brother, King Richard, and which we retain in our hand (or which are possessed by others, to whom we are bound to warrant them) we shall have respite until the usual term of crusaders; excepting those things about which a plea has been raised, or an inquest made by our order, before our taking of the cross; but as soon as were turn from our expedition (or if perchance we desist from the expedition) we will immediately grant full justice therein. 53. We shall have, moreover, the same respite and in the same manner in rendering justice concerning the disafforestation or retention of those forests which Henry our father and Richard our brother afforested, and concerning wardship of lands which are of the fief of another (namely, such wardships as we have hitherto had by reason of a fief which any one held of us by knight's service), and concerning abbeys founded on other fiefs than our own, in which the lord of the fief claims to have right; and when we have returned, or if we desist from our expedition, we will immediately grant full justice to all who complain of such things. 54. No one shall be arrested or imprisoned upon the appeal of a woman, for the death of any other than her husband. 55. All fines made with us unjustly and against the law of the land, and all amercements imposed unjustly and against the law of the land, shall be entirely remitted, or else it shall be done concerning them according to the decision of the five-and-twenty barons of whom mention is made below in the clause for securing the peace, or according to the judgment of the majority of the same, along with the aforesaid Stephen, archbishop of Canterbury, if he can be present, and such others as he may wish to bring with him for this purpose, and if he cannot be present the business shall nevertheless proceed without him, provided always that if any one or more of the aforesaid five-and-twenty barons are in a similar suit, they shall be removed as far as concerns this particular judgment, others being substituted in their places after having been selected by the rest of the same five-and-twenty for this purpose only, and after having been sworn. 56. If we have disseised or removed Welshmen from lands or liberties, or other things, without the legal judgment of their peers in England or in Wales, they shall be immediately restored to them; and if a dispute arise over this, then let it be decided in the marches by the judgment of their peers; for tenements in England according to the law of England, for tenements in Wales according to the law of Wales, and for tenements in the marches according to the law of the marches. Welshmen shall do the same to us and ours. 57. Further, for all those possessions from which any Welshman has, without the lawful judgment of his peers, been disseised or removed by King Henry our father or King Richard our brother, and which we retain in our hand (or which are possessed by others, to whom we are bound to warrant them) we shall have respite until the usual term of crusaders; excepting those things about which a plea has been raised or an inquest made by our order before we took the cross; but as soon as we return (or if perchance we desist from our expedition), we will immediately grant full justice in accordance with the laws of the Welsh and in relation to the foresaid regions. 58. We will immediately give up the son of Llywelyn and all the hostages of Wales, and the charters delivered to us as security for the peace. 59. We will do toward Alexander, King of Scots, concerning the return of his sisters and his hostages, and concerning his franchises, and his right, in the same manner as we shall do toward our other barons of England, unless it ought to be otherwise according to the charters which we hold from William his father, formerly King of Scots; and this shall be according to the judgment of his peers in our court. 60. Moreover, all these aforesaid customs and liberties, the observance of which we have granted in our kingdom as far as pertains to us toward our men, shall be observed by all of our kingdom, as well clergy as laymen, as far as pertains to them toward their men. 61. Since, moreover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance for ever, we give and grant to them the underwritten security, namely, that the barons choose five-and-twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault toward any one, or shall have broken any one of the articles of the peace or of this security, and the offense be notified to four barons of the foresaid five-and-twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five-and-twenty barons, and those five-and-twenty barons shall, together with the community of the whole land, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations toward us. And let whoever in the country desires it, swear to obey the orders of the said five-and-twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to every one who wishes to swear, and we shall never forbid any one to swear. All those, moreover, in the land who of themselves and of their own accord are unwilling to swear to the twenty-five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect aforesaid. And if any one of the five-and-twenty barons shall have died or departed from the land, or be incapacitated in any other manner which would prevent the foresaid provisions being carried out, those of the said twenty-five barons who are left shall choose another in his place according to their own judgment, and he shall be sworn in the same way as the others. Further, in all matters, the execution of which is intrusted to these twenty-five barons, if perchance these twenty-five are present, that which the majority of those present ordain or command shall be held as fixed and established, exactly as if the whole twenty-five had concurred in this; and the said twenty-five shall swear that they will faithfully observe all that is aforesaid, and cause it to be observed with all their might. And we shall procure nothing from any one, directly or indirectly, whereby any part of these concessions and liberties might be revoked or diminished; and if any such thing has been procured, let it be void and null, and we shall never use it personally or by another. 62. And all the ill-will, hatreds, and bitterness that have arisen between us and our men, clergy and lay, from the date of the quarrel, we have completely remitted and pardoned every one. Moreover, all trespasses occasioned by the said quarrel, from Easter in the sixteenth year of our reign till the restoration of peace, we have fully remitted to all, both clergy and laymen, and completely forgiven, as far as pertains to us. And, on this head, we have caused to be made for them letters testimonial patent of the lord Stephen, archbishop of Canterbury, of the lord Henry, archbishop of Dublin, of the bishops aforesaid, and of Master Pandulf as touching this security and the concessions aforesaid. 63. Wherefore it is our will, and we firmly enjoin, that the English Church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places for ever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent. Given under our hand--the above-named and many others being witnesses--in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign. *** The text of THE MAGNA CARTA The Magna Carta (The Great Charter): Preamble: John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou, to the archbishop, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greetings. Know that, having regard to God and for the salvation of our soul, and those of all our ancestors and heirs, and unto the honor of God and the advancement of his holy Church and for the rectifying of our realm, we have granted as underwritten by advice of our venerable fathers, Stephen, archbishop of Canterbury, primate of all England and cardinal of the holy Roman Church, Henry, archbishop of Dublin, William of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, William of Coventry, Benedict of Rochester, bishops; of Master Pandulf, subdeacon and member of the household of our lord the Pope, of brother Aymeric (master of the Knights of the Temple in England), and of the illustrious men William Marshal, earl of Pembroke, William, earl of Salisbury, William, earl of Warenne, William, earl of Arundel, Alan of Galloway (constable of Scotland), Waren Fitz Gerold, Peter Fitz Herbert, Hubert De Burgh (seneschal of Poitou), Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip d'Aubigny, Robert of Roppesley, John Marshal, John Fitz Hugh, and others, our liegemen. 1. In the first place we have granted to God, and by this our present charter confirmed for us and our heirs forever that the English Church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the English Church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III, before the quarrel arose between us and our barons: and this we will observe, and our will is that it be observed in good faith by our heirs forever. We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever. 2. If any of our earls or barons, or others holding of us in chief by military service shall have died, and at the time of his death his heir shall be full of age and owe "relief", he shall have his inheritance by the old relief, to wit, the heir or heirs of an earl, for the whole baroncy of an earl by L100; the heir or heirs of a baron, L100 for a whole barony; the heir or heirs of a knight, 100s, at most, and whoever owes less let him give less, according to the ancient custom of fees. 3. If, however, the heir of any one of the aforesaid has been under age and in wardship, let him have his inheritance without relief and without fine when he comes of age. 4. The guardian of the land of an heir who is thus under age, shall take from the land of the heir nothing but reasonable produce, reasonable customs, and reasonable services, and that without destruction or waste of men or goods; and if we have committed the wardship of the lands of any such minor to the sheriff, or to any other who is responsible to us for its issues, and he has made destruction or waster of what he holds in wardship, we will take of him amends, and the land shall be committed to two lawful and discreet men of that fee, who shall be responsible for the issues to us or to him to whom we shall assign them; and if we have given or sold the wardship of any such land to anyone and he has therein made destruction or waste, he shall lose that wardship, and it shall be transferred to two lawful and discreet men of that fief, who shall be responsible to us in like manner as aforesaid. 5. The guardian, moreover, so long as he has the wardship of the land, shall keep up the houses, parks, fishponds, stanks, mills, and other things pertaining to the land, out of the issues of the same land; and he shall restore to the heir, when he has come to full age, all his land, stocked with ploughs and wainage, according as the season of husbandry shall require, and the issues of the land can reasonable bear. 6. Heirs shall be married without disparagement, yet so that before the marriage takes place the nearest in blood to that heir shall have notice. 7. A widow, after the death of her husband, shall forthwith and without difficulty have her marriage portion and inheritance; nor shall she give anything for her dower, or for her marriage portion, or for the inheritance which her husband and she held on the day of the death of that husband; and she may remain in the house of her husband for forty days after his death, within which time her dower shall be assigned to her. 8. No widow shall be compelled to marry, so long as she prefers to live without a husband; provided always that she gives security not to marry without our consent, if she holds of us, or without the consent of the lord of whom she holds, if she holds of another. 9. Neither we nor our bailiffs will seize any land or rent for any debt, as long as the chattels of the debtor are sufficient to repay the debt; nor shall the sureties of the debtor be distrained so long as the principal debtor is able to satisfy the debt; and if the principal debtor shall fail to pay the debt, having nothing wherewith to pay it, then the sureties shall answer for the debt; and let them have the lands and rents of the debtor, if they desire them, until they are indemnified for the debt which they have paid for him, unless the principal debtor can show proof that he is discharged thereof as against the said sureties. 10. If one who has borrowed from the Jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold; and if the debt fall into our hands, we will not take anything except the principal sum contained in the bond. 11. And if anyone die indebted to the Jews, his wife shall have her dower and pay nothing of that debt; and if any children of the deceased are left under age, necessaries shall be provided for them in keeping with the holding of the deceased; and out of the residue the debt shall be paid, reserving, however, service due to feudal lords; in like manner let it be done touching debts due to others than Jews. 12. No scutage not aid shall be imposed on our kingdom, unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. In like manner it shall be done concerning aids from the city of London. 13. And the city of London shall have all it ancient liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. 14. And for obtaining the common counsel of the kingdom anent the assessing of an aid (except in the three cases aforesaid) or of a scutage, we will cause to be summoned the archbishops, bishops, abbots, earls, and greater barons, severally by our letters; and we will moveover cause to be summoned generally, through our sheriffs and bailiffs, and others who hold of us in chief, for a fixed date, namely, after the expiry of at least forty days, and at a fixed place; and in all letters of such summons we will specify the reason of the summons. And when the summons has thus been made, the business shall proceed on the day appointed, according to the counsel of such as are present, although not all who were summoned have come. 15. We will not for the future grant to anyone license to take an aid from his own free tenants, except to ransom his person, to make his eldest son a knight, and once to marry his eldest daughter; and on each of these occasions there shall be levied only a reasonable aid. 16. No one shall be distrained for performance of greater service for a knight's fee, or for any other free tenement, than is due therefrom. 17. Common pleas shall not follow our court, but shall be held in some fixed place. 18. Inquests of novel disseisin, of mort d'ancestor, and of darrein presentment shall not be held elsewhere than in their own county courts, and that in manner following; We, or, if we should be out of the realm, our chief justiciar, will send two justiciaries through every county four times a year, who shall alone with four knights of the county chosen by the county, hold the said assizes in the county court, on the day and in the place of meeting of that court. 19. And if any of the said assizes cannot be taken on the day of the county court, let there remain of the knights and freeholders, who were present at the county court on that day, as many as may be required for the efficient making of judgments, according as the business be more or less. 20. A freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his "contentment"; and a merchant in the same way, saving his "merchandise"; and a villein shall be amerced in the same way, saving his "wainage" if they have fallen into our mercy: and none of the aforesaid amercements shall be imposed except by the oath of honest men of the neighborhood. 21. Earls and barons shall not be amerced except through their peers, and only in accordance with the degree of the offense. 22. A clerk shall not be amerced in respect of his lay holding except after the manner of the others aforesaid; further, he shall not be amerced in accordance with the extent of his ecclesiastical benefice. 23. No village or individual shall be compelled to make bridges at river banks, except those who from of old were legally bound to do so. 24. No sheriff, constable, coroners, or others of our bailiffs, shall hold pleas of our Crown. 25. All counties, hundred, wapentakes, and trithings (except our demesne manors) shall remain at the old rents, and without any additional payment. 26. If anyone holding of us a lay fief shall die, and our sheriff or bailiff shall exhibit our letters patent of summons for a debt which the deceased owed us, it shall be lawful for our sheriff or bailiff to attach and enroll the chattels of the deceased, found upon the lay fief, to the value of that debt, at the sight of law worthy men, provided always that nothing whatever be thence removed until the debt which is evident shall be fully paid to us; and the residue shall be left to the executors to fulfill the will of the deceased; and if there be nothing due from him to us, all the chattels shall go to the deceased, saving to his wife and children their reasonable shares. 27. If any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest kinsfolk and friends, under supervision of the Church, saving to every one the debts which the deceased owed to him. 28. No constable or other bailiff of ours shall take corn or other provisions from anyone without immediately tendering money therefor, unless he can have postponement thereof by permission of the seller. 29. No constable shall compel any knight to give money in lieu of castle-guard, when he is willing to perform it in his own person, or (if he himself cannot do it from any reasonable cause) then by another responsible man. Further, if we have led or sent him upon military service, he shall be relieved from guard in proportion to the time during which he has been on service because of us. 30. No sheriff or bailiff of ours, or other person, shall take the horses or carts of any freeman for transport duty, against the will of the said freeman. 31. Neither we nor our bailiffs shall take, for our castles or for any other work of ours, wood which is not ours, against the will of the owner of that wood. 32. We will not retain beyond one year and one day, the lands those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs. 33. All kydells for the future shall be removed altogether from Thames and Medway, and throughout all England, except upon the seashore. 34. The writ which is called praecipe shall not for the future be issued to anyone, regarding any tenement whereby a freeman may lose his court. 35. Let there be one measure of wine throughout our whole realm; and one measure of ale; and one measure of corn, to wit, "the London quarter"; and one width of cloth (whether dyed, or russet, or "halberget"), to wit, two ells within the selvedges; of weights also let it be as of measures. 36. Nothing in future shall be given or taken for a writ of inquisition of life or limbs, but freely it shall be granted, and never denied. 37. If anyone holds of us by fee-farm, either by socage or by burage, or of any other land by knight's service, we will not (by reason of that fee-farm, socage, or burgage), have the wardship of the heir, or of such land of his as if of the fief of that other; nor shall we have wardship of that fee-farm, socage, or burgage, unless such fee-farm owes knight's service. We will not by reason of any small serjeancy which anyone may hold of us by the service of rendering to us knives, arrows, or the like, have wardship of his heir or of the land which he holds of another lord by knight's service. 38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his "law", without credible witnesses brought for this purposes. 39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. 40. To no one will we sell, to no one will we refuse or delay, right or justice. 41. All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us. And if such are found in our land at the beginning of the war, they shall be detained, without injury to their bodies or goods, until information be received by us, or by our chief justiciar, how the merchants of our land found in the land at war with us are treated; and if our men are safe there, the others shall be safe in our land. 42. It shall be lawful in future for anyone (excepting always those imprisoned or outlawed in accordance with the law of the kingdom, and natives of any country at war with us, and merchants, who shall be treated as if above provided) to leave our kingdom and to return, safe and secure by land and water, except for a short period in time of war, on grounds of public policy- reserving always the allegiance due to us. 43. If anyone holding of some escheat (such as the honor of Wallingford, Nottingham, Boulogne, Lancaster, or of other escheats which are in our hands and are baronies) shall die, his heir shall give no other relief, and perform no other service to us than he would have done to the baron if that barony had been in the baron's hand; and we shall hold it in the same manner in which the baron held it. 44. Men who dwell without the forest need not henceforth come before our justiciaries of the forest upon a general summons, unless they are in plea, or sureties of one or more, who are attached for the forest. 45. We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well. 46. All barons who have founded abbeys, concerning which they hold charters from the kings of England, or of which they have long continued possession, shall have the wardship of them, when vacant, as they ought to have. 47. All forests that have been made such in our time shall forthwith be disafforsted; and a similar course shall be followed with regard to river banks that have been placed "in defense" by us in our time. 48. All evil customs connected with forests and warrens, foresters and warreners, sheriffs and their officers, river banks and their wardens, shall immediately by inquired into in each county by twelve sworn knights of the same county chosen by the honest men of the same county, and shall, within forty days of the said inquest, be utterly abolished, so as never to be restored, provided always that we previously have intimation thereof, or our justiciar, if we should not be in England. 49. We will immediately restore all hostages and charters delivered to us by Englishmen, as sureties of the peace of faithful service. 50. We will entirely remove from their bailiwicks, the relations of Gerard of Athee (so that in future they shall have no bailiwick in England); namely, Engelard of Cigogne, Peter, Guy, and Andrew of Chanceaux, Guy of Cigogne, Geoffrey of Martigny with his brothers, Philip Mark with his brothers and his nephew Geoffrey, and the whole brood of the same. 51. As soon as peace is restored, we will banish from the kingdom all foreign born knights, crossbowmen, serjeants, and mercenary soldiers who have come with horses and arms to the kingdom's hurt. 52. If anyone has been dispossessed or removed by us, without the legal judgment of his peers, from his lands, castles, franchises, or from his right, we will immediately restore them to him; and if a dispute arise over this, then let it be decided by the five and twenty barons of whom mention is made below in the clause for securing the peace. Moreover, for all those possessions, from which anyone has, without the lawful judgment of his peers, been disseised or removed, by our father, King Henry, or by our brother, King Richard, and which we retain in our hand (or which as possessed by others, to whom we are bound to warrant them) we shall have respite until the usual term of crusaders; excepting those things about which a plea has been raised, or an inquest made by our order, before our taking of the cross; but as soon as we return from the expedition, we will immediately grant full justice therein. 53. We shall have, moreover, the same respite and in the same manner in rendering justice concerning the disafforestation or retention of those forests which Henry our father and Richard our brother afforested, and concerning the wardship of lands which are of the fief of another (namely, such wardships as we have hitherto had by reason of a fief which anyone held of us by knight's service), and concerning abbeys founded on other fiefs than our own, in which the lord of the fee claims to have right; and when we have returned, or if we desist from our expedition, we will immediately grant full justice to all who complain of such things. 54. No one shall be arrested or imprisoned upon the appeal of a woman, for the death of any other than her husband. 55. All fines made with us unjustly and against the law of the land, and all amercements, imposed unjustly and against the law of the land, shall be entirely remitted, or else it shall be done concerning them according to the decision of the five and twenty barons whom mention is made below in the clause for securing the pease, or according to the judgment of the majority of the same, along with the aforesaid Stephen, archbishop of Canterbury, if he can be present, and such others as he may wish to bring with him for this purpose, and if he cannot be present the business shall nevertheless proceed without him, provided always that if any one or more of the aforesaid five and twenty barons are in a similar suit, they shall be removed as far as concerns this particular judgment, others being substituted in their places after having been selected by the rest of the same five and twenty for this purpose only, and after having been sworn. 56. If we have disseised or removed Welshmen from lands or liberties, or other things, without the legal judgment of their peers in England or in Wales, they shall be immediately restored to them; and if a dispute arise over this, then let it be decided in the marches by the judgment of their peers; for the tenements in England according to the law of England, for tenements in Wales according to the law of Wales, and for tenements in the marches according to the law of the marches. Welshmen shall do the same to us and ours. 57. Further, for all those possessions from which any Welshman has, without the lawful judgment of his peers, been disseised or removed by King Henry our father, or King Richard our brother, and which we retain in our hand (or which are possessed by others, and which we ought to warrant), we will have respite until the usual term of crusaders; excepting those things about which a plea has been raised or an inquest made by our order before we took the cross; but as soon as we return (or if perchance we desist from our expedition), we will immediately grant full justice in accordance with the laws of the Welsh and in relation to the foresaid regions. 58. We will immediately give up the son of Llywelyn and all the hostages of Wales, and the charters delivered to us as security for the peace. 59. We will do towards Alexander, king of Scots, concerning the return of his sisters and his hostages, and concerning his franchises, and his right, in the same manner as we shall do towards our other barons of England, unless it ought to be otherwise according to the charters which we hold from William his father, formerly king of Scots; and this shall be according to the judgment of his peers in our court. 60. Moreover, all these aforesaid customs and liberties, the observances of which we have granted in our kingdom as far as pertains to us towards our men, shall be observed b all of our kingdom, as well clergy as laymen, as far as pertains to them towards their men. 61. Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us. And let whoever in the country desires it, swear to obey the orders of the said five and twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall never forbid anyone to swear. All those, moveover, in the land who of themselves and of their own accord are unwilling to swear to the twenty five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect foresaid. And if any one of the five and twenty barons shall have died or departed from the land, or be incapacitated in any other manner which would prevent the foresaid provisions being carried out, those of the said twenty five barons who are left shall choose another in his place according to their own judgment, and he shall be sworn in the same way as the others. Further, in all matters, the execution of which is entrusted to these twenty five barons, if perchance these twenty five are present and disagree about anything, or if some of them, after being summoned, are unwilling or unable to be present, that which the majority of those present ordain or command shall be held as fixed and established, exactly as if the whole twenty five had concurred in this; and the said twenty five shall swear that they will faithfully observe all that is aforesaid, and cause it to be observed with all their might. And we shall procure nothing from anyone, directly or indirectly, whereby any part of these concessions and liberties might be revoked or diminished; and if any such things has been procured, let it be void and null, and we shall never use it personally or by another. 62. And all the will, hatreds, and bitterness that have arisen between us and our men, clergy and lay, from the date of the quarrel, we have completely remitted and pardoned to everyone. Moreover, all trespasses occasioned by the said quarrel, from Easter in the sixteenth year of our reign till the restoration of peace, we have fully remitted to all, both clergy and laymen, and completely forgiven, as far as pertains to us. And on this head, we have caused to be made for them letters testimonial patent of the lord Stephen, archbishop of Canterbury, of the lord Henry, archbishop of Dublin, of the bishops aforesaid, and of Master Pandulf as touching this security and the concessions aforesaid. 63. Wherefore we will and firmly order that the English Church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places forever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent. Given under our hand - the above named and many others being witnesses - in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign. *** 
12355	----	JOHNS HOPKINS UNIVERSITY STUDIES IN HISTORICAL AND POLITICAL SCIENCE HERBERT B. ADAMS, Editor History is past Politics and Politics present History.--_Freeman_ NINTH SERIES IX THE CONSTITUTIONAL DEVELOPMENT OF JAPAN, 1853-1881 BY TOYOKICHI IYENAGA, PH. D. Professor of Political Science in Tokio Senmon-Gakko September, 1891 CONTENTS. INTRODUCTORY CHAP. I. (1853-1868). BEGINNING OF THE CONSTITUTIONAL MOVEMENT THE CIRCUMSTANCES THAT GAVE RISE TO THE MOVEMENT THE ACCOUNT OF COMMODORE PERRY'S ARRIVAL BY THE AUTHOR OF GENJE YUME MONOGATARI DISCUSSION BETWEEN THE PRINCE OF MITO AND THE TOKUGAWA OFFICIALS AT THE COURT OF YEDO CONCLUSION OF TREATY BETWEEN THE UNITED STATES AND JAPAN THE OLD PRINCE OF MITO, NARIAKI II KAMON NO KAMI BOMBARDMENTS OF KAGOSHIMA AND SHIMONOSHEKI THE EFFECTS OF THE BOMBARDMENT 1. Showed the Weakness of the Daimios and the Strength of foreigners 2. Showed the Necessity of National Union, and of the Reconstruction of the Administrative Machinery of the Empire GREAT COUNCILS OF KUGES AND DAIMIOS. 1. Their Nature and Organization 2. How they originated 3. In them lay the Germ of the future Constitutional Parliament of Japan CHAP. II. (1868-1869). THE RESTORATION CAUSES OF THE DOWNFALL OF THE SHOGUNATE 1. Revival of Learning 2. Revival of Shintoism 3. Jealousy and Cupidity of the Southern Daimios THE RESIGNATION OF THE SHOGUN THE MOTIVE OF HIS RESIGNATION THE GOVERNMENT OF THE RESTORATION 1. Its Organization 2. Its Departments FOREIGN POLICY OF THE NEW GOVERNMENT REMOVAL OF THE CAPITAL TO TOKIO THE CHARTER OATH OF THE EMPEROR, APRIL 17, 1869 THE KOGISHO 1. Its Origin 2. Its Composition 3. Its Nature CHAP. III. (1869-1871). THE ABOLITION OF FEUDALISM. MEMORIAL OF PRESIDENT OF THE KOGISHO ABOLITION SCHEME OF SCHOLARS IS BACKED BY THE SOUTHERN DAIMIOS MEMORIAL OF THE SOUTHERN DAIMIOS IMPERIAL DECREE OF 1871, ABOLISHING FEUDALISM CAUSES OF THE OVERTHROW OF FEUDALISM CHAP. IV. INFLUENCES THAT SHAPED THE GROWTH OF THE REPRESENTATIVE IDEA OF GOVERNMENT JOHN STEWART MILL'S ENUMERATION OF THE SOCIAL CONDITIONS NECESSARY FOR THE SUCCESS OF REPRESENTATIVE GOVERNMENT JAPAN OF 1871 NOT YET READY FOR THE ADOPTION OF REPRESENTATIVE GOVERNMENT POLITICAL ACTIVITY OF A NATION NOT ISOLATED FROM OTHER SPHERES OF ITS ACTIVITIES JAPAN'S POLITICAL DEVELOPMENT GREATLY AIDED BY HER SOCIAL, EDUCATIONAL, INDUSTRIAL AND RELIGIOUS CHANGES SKETCH OF THE DEVELOPMENT OF THESE NON-POLITICAL INSTITUTIONS FROM 1868 TO 1881 1. Means of Communication a. Telegraph b. Postal System c. Railroad d. Steamers and the Coasting Trade 2. Educational Institutions 3. Newspapers CHANGES IN LAW AND RELIGION CHAP. V. (1871-1881). PROGRESS OF THE CONSTITUTIONAL MOVEMENT FROM THE ABOLITION OF FEUDALISM TO THE PROCLAMATION OF OCTOBER 12, 1881 LEADERS OF THE RESTORATION EFFECT OF THE OVERTHROW OF FEUDALISM THE IWAKURA EMBASSY IWAKURA, ITO, INOUYE FUKUZAWA THE PRESS AND ITS INFLUENCES RI-SHI-SHA AND COUNT ITAGAKI MEMORIALS OF RI-SHI-SHA TO THE EMPEROR ESTABLISHMENT OF LOCAL ASSEMBLIES THE PROCLAMATION OF OCTOBER 12, 1881, TO ESTABLISH A PARLIAMENT IN 1890 INTRODUCTORY. The power which destroyed Japanese feudalism and changed in that country an absolute into a constitutional monarchy was a resultant of manifold forces. The most apparent of these forces is the foreign influence. Forces less visible but more potent, tending in this direction, are those influences resulting from the growth of commerce and trade, from the diffusion of western science and knowledge among the people, and from the changes in social habits and religious beliefs. The truth of the solidarity of the varied interests of a social organism is nowhere so well exemplified as in the history of modern Japan. Her remarkable political development would have been impossible had there been no corresponding social, educational, religious, economic and industrial changes. In order to trace the constitutional development of New Japan, it is therefore necessary: 1. To ascertain the political condition of the country at and after the advent of foreigners in 1853. 2. To describe the form of government of the Restoration. 3. To examine the state of commerce, industry, education and social life of Japan at each stage of her political transformations. 4. To recount the constitutional changes from the Restoration to the Promulgation of the New Constitution. As a novice in travel marks the broad outlines, the general features and more important products of the country he visits for the first time, so I shall dwell upon the historic landmarks of Japanese constitutional development. This development no writer, native or foreign, has yet attempted to trace. I shall withstand as much as possible the temptation to refer to the multitude of events which are more or less associated with the constitutional movement. I shall endeavor to ascertain from the edicts, decrees, and proclamations of the Emperor, from the orders and manifestos of the Shogun, from the native authors and journals, from the memorials and correspondence of prominent men, both native and foreign, the trend of our constitutional development. I shall also endeavor to note the leading ideas and principles which, after manifesting themselves in various forms, have at last crystallized into the New Constitution of Japan. CHAPTER I. BEGINNING OF THE CONSTITUTIONAL MOVEMENT. The constitutional movement of Japan began in a spontaneous agitation of the whole body politic when the nation was irritated by the sudden contact with foreigners. The sense of national weakness added a force to this agitation. Had not the foreigners come, the Restoration might have been effected, feudalism might have been abolished, but the new Japanese constitution would hardly have seen the day. Had the government of Japan at the time of the advent of foreigners been in the strong hand of a Taiko or an Iyeyasu, the rulers might have been greatly exercised by the extraordinary event, but public opinion for reform would hardly have been called forth, and the birth of constitutional liberty would long have been delayed. As the vices of King John and the indifference and ignorance of the first two Georges of England begat the strength and hope of the English Parliament, so the public opinion of Japan sprouted out of the ruins of the Shogunate régime. We must therefore seek for the beginning of the Constitutional Movement of Japan in the peculiar circumstances in which she found herself between 1853 and 1868. The advent of Commodore Perry in 1853 was to Japan like the intrusion of a foreign queen into a beehive. The country was stirred to its depth. Let us note what a native chronicler[1] says about the condition of Japan at the arrival of Perry: "It was in the summer of 1853 that an individual named Perry, who called himself the envoy of the United States of America, suddenly arrived at Uraga, in the Province of Sagami, with four ships of war, declaring that he brought a letter from his country to Japan and that he wished to deliver it to the sovereign. The governor of the place, Toda Idzu No Kami, much alarmed by this extraordinary event, hastened to the spot to inform himself of its meaning. The envoy stated, in reply to questions, that he desired to see a chief minister in order to explain the object of his visit and to hand over to him the letter with which he was charged. The governor then despatched a messenger on horseback with all haste to carry this information to the castle of Yedo, where a great scene of confusion ensued on his arrival. Fresh messengers followed, and the Shogun Iyeyoshi, on receiving them, was exceedingly troubled, and summoned all the officials[2] to a council. At first the affair seemed so sudden and so formidable that they were too alarmed to open their mouths, but in the end orders were issued to the great clans to keep strict watch at various points on the shore, as it was possible that the 'barbarian' vessels might proceed to commit acts of violence. Presently a learned Chinese scholar was sent to Uraga, had an interview with the American envoy, and returned with the letter, which expressed the desire of the United States to establish friendship and intercourse with Japan, and said, according to this account, that if they met with a refusal they should commence hostilities. Thereupon the Shogun was greatly distressed, and again summoned a council. He also asked the opinion of the Daimios. The assembled officials were exceedingly disturbed, and nearly broke their hearts over consultations which lasted all day and all night. The nobles and retired nobles in Yedo were informed that they were at liberty to state any ideas they might have on the subject, and, although they all gave their opinions, the diversity of propositions was so great that no decision was arrived at. The military class had, during a long peace, neglected military arts; they had given themselves up to pleasure and luxury, and there were very few who had put on armor for many years, so that they were greatly alarmed at the prospect that war might break out at a moment's notice, and began to run hither and thither in search of arms. The city of Yedo and the surrounding villages were in a great tumult. And there was such a state of confusion among all classes that the governors of the city were compelled to issue a notification to the people, and this in the end had the effect of quieting the general anxiety. But in the castle never was a decision further from being arrived at, and, whilst time was being thus idly wasted, the envoy was constantly demanding an answer. So at last they decided that it would be best to arrange the affair quietly, to give the foreigners the articles they wanted, and to put off sending an answer to the letter--to tell the envoy that in an affair of such importance to the state no decision could be arrived at without mature consideration, and that he had better go away; that in a short time he should get a definite answer. The envoy agreed, and after sending a message to say that he should return in the following spring for his answer, set sail from Uraga with his four ships."[3] Thus was the renowned commander kept away for awhile. He went, however, of his own accord. Perry was an astute diplomatist. He knew that time was needed for the impressions which he and his magnificent fleet had made upon the country to produce their natural effect. The news of Perry's visit and demands spread far and wide with remarkable rapidity. The government and the people were deeply stirred. Soon the song of the "red-bearded barbarians" and of the black ships was in everybody's mouth. The question "What shall Japan do when the barbarians come next spring?" became the absorbing theme of the day. There was now but one of two policies which Japan could pursue, either to shut up the country or to admit the foreigners' demand. There was no middle course left. The American envoy would no longer listen to the dilatory policy with which the Japanese had just bought a few months' respite from anxiety. The majority of the ruling class, the Samurai, were in favor of the exclusion policy. So was the court of Kioto. But the views of the court of Yedo were different. The court of Yedo had many men of intelligence, common sense and experience--men who had seen the American envoy and his squadron, equipped with all the contrivances for killing men and devastating the country. These men knew too well that resistance to the foreigners was futile and perilous. Thus was the country early divided into two clearly defined parties, the Jo-i[4] party and the Kai-Koku party. Meanwhile, the autumn and winter of 1853 passed. The spring of 1854 soon came, and with it the intractable "barbarians." Let us hear the author of Genje Yume Monogatari relate the return of Perry and the great discussion that ensued at the court of Yedo: "Early in 1854 Commodore Perry returned, and the question of acceding to his demands was again hotly debated. The old prince of Mito was opposed to it, and contended that the admission of foreigners into Japan would ruin it. 'At first,' said he, 'they will give us philosophical instruments, machinery and other curiosities; will take ignorant people in, and, trade being their chief object, they will manage bit by bit to impoverish the country, after which they will treat us just as they like--perhaps behave with the greatest rudeness and insult us, and end by swallowing up Japan. If we do not drive them away now we shall never have another opportunity. If we now resort to a dilatory method of proceeding we shall regret it afterwards when it will be of no use.' "The officials (of the Shogun), however, argued otherwise and said: 'If we try to drive them away they will immediately commence hostilities, and then we shall be obliged to fight. If we once get into a dispute we shall have an enemy to fight who will not be easily disposed of. He does not care how long a time he must spend over it, but he will come with myriads of men-of-war and surround our shores completely; he will capture our junks and blockade our ports, and deprive us of all hope of protecting our coasts. However large a number of ships we might destroy, he is so accustomed to that sort of thing that he would not care in the least. Even supposing that our troops were animated by patriotic zeal in the commencement of the war, after they had been fighting for several years their patriotic zeal would naturally become relaxed, the soldiers would become fatigued, and for this we should have to thank ourselves. Soldiers who have distinguished themselves are rewarded by grants of land, or else you attack and seize the enemy's territory and that becomes your own property; so every man is encouraged to fight his best. But in a war with foreign countries a man may undergo hardships for years, may fight as if his life were worth nothing, and, as all the land in this country already has owners, there will be none to be given away as rewards; so we shall have to give rewards in words or money. In time the country would be put to an immense expense and the people be plunged into misery. Rather than allow this, as we are not the equals of foreigners in the mechanical arts, let us have intercourse with foreign countries, learn their drill and tactics, and when we have made the nation as united as one family, we shall be able to go abroad and give lands in foreign countries to those who have distinguished themselves in battle. The soldiers will vie with one another in displaying their intrepidity, and it will not be too late then to declare war. Now we shall have to defend ourselves against these foreign enemies, skilled in the use of mechanical appliances, with our soldiers whose military skill has considerably diminished during a long peace of three hundred years, and we certainly could not feel sure of victory, especially in a naval war.'"[5] The Kai-Koku party, the party in favor of opening the country, triumphed, and the treaty was finally concluded between the United States and Japan on the 31st of March, 1854. After the return of Commodore Perry to America, Townsend Harris was sent by the United States Government as Consul-General to Japan. He negotiated the commercial treaty between the United States and Japan on July 29, 1858. At the heels of the Americans followed the English, French, Russians, Dutch, and other nations. Japan's foreign relations became more and more complicated and therefore difficult to manage. The discussion quoted above is a type of the arguments used by the Jo-i party and the Kai-Koku party. The history of Japanese politics from 1853 to 1868 is the history of the struggle between these two parties, each of which soon changed its name. As the Jo-i party allied itself with the court of Kioto, it became the O-sei or Restoration party. As the Kai-Koku party was associated with the court of Shogun, it became the Bakufu party. The struggle ended in the triumph of the Restoration party. But by that time the Jo-i party, from a cause which I shall soon mention, had been completely transformed and converted to the Western ideas. Among the leaders of the Jo-i party was Nariaki, the old prince of Mito. He belonged to one of the San Kay (three families), out of which Iyeyasu ordered the Shogun to be chosen. He was connected by marriage with the families of the Emperor and the highest Kuges in Miako, and with the wealthiest Daimios. In power the Mito family thus ranked high among the Daimios. Among the scholars the Prince of Mito was popular. The prestige of his great ancestor, the compiler of Dai-Nihon-Shi, had not yet died out. The Prince of Mito was thus naturally looked up to by the scholars as the man of right principles and of noble ideas. A shrewd, clever, and scheming old man, the Prince of Mito now became the defender of the cause of the Emperor and the mouthpiece of the conservative party. At the head of the Bakufu party was a man of iron and fertile resources, Ii Kamon No Kami. He was the Daimio of Hikone, a castled town and fief on Lake Biwa, in Mino. His revenue was small, being only three hundred and fifty thousand koku. But in position and power none in the empire could rival him. He was the head of the Fudai Daimios. His family was called the Dodai or foundation-stone of the power of the Tokugawa dynasty. His ancestor, Ii Nawo Massa, had been lieutenant-general and right-hand man of Iyeyas. Ii Kamon No Kami, owing to the mental infirmity of the reigning Shogun, had lately become his regent. Bold, ambitious, able, and unscrupulous, Ii was the Richelieu of Japan. From this time on till his assassination on March 23, 1860, he virtually ruled the empire, and, in direct contravention to the imperial will, negotiated with foreign nations, as we have seen, for the opening of ports for trade with them. He was styled the "swaggering prime minister," and his name was long pronounced with contempt and odium. Lately, however, his good name has been rescued and his fame restored by the noble effort of an able writer, Mr. Saburo Shimada.[6] But this able prime minister fell on March 23, 1860, by the sword of Mito ronins, who alleged, as the pretext of their crime, that "Ii Kamon No Kami had insulted the imperial decree and, careless of the misery of the people, but making foreign intercourse his chief aim, had opened ports." "The position of the government upon the death of the regent was that of helpless inactivity. The sudden removal of the foremost man of the empire was as the removal of the fly-wheel from a piece of complicated machinery. The whole empire stood aghast, expecting and fearing some great political convulsion."[7] The Shogun began to make a compromise to unite the Emperor's power and the Shogun's, by taking the sister of the Emperor for his wife. Meanwhile great events were taking place in the southern corner of Kiushiu and on the promontory of Shikoku, events which were to effect great changes in men's ideas. These were the bombardments of Kagoshima and of Shimonosheki, the first on August 11, 1863, the second on September 5, 1864. I shall not dwell here on the injustice of these barbarous and heathenish acts of the so-called civilized and Christian nations; for I am not writing a political pamphlet. But impartially let us note the great effects of these bombardments. I. These conflicts showed on a grand but sad scale the weakness of the Daimios, even the most powerful of them, and, on the other hand, the power of the foreigners and their rifled cannon and steamers. The following Japanese memorandum expresses this point: "Satsuma's eyes were opened since the fight of Kagoshima, and affairs appeared to him in a new light; he changed in favor of foreigners, and thought now of making his country powerful and completing his armaments."[8] The Emperor also wrote in a rather pathetic tone to the Shogun touching the relative strength of the Japanese and the foreigners: "I held a council the other day with my military nobility (Daimios and nobles), but unfortunately inured to the habits of peace, which for more than two hundred years has existed in our country, we are unable to exclude and subdue our foreign enemies by the forcible means of war.... "If we compare our Japanese ships of war and cannon to those of the barbarians, we feel certain that they are not sufficient to inflict terror upon the foreign barbarians, and are also insufficient to make the splendor of Japan shine in foreign countries. I should think that we only should make ourselves ridiculous in the eyes of the barbarians."[9] From the time of the bombardment, Satsuma and Choshiu began to introduce European machinery and inventions, to employ skilled Europeans to teach them, and to send their young men to Europe and America. II. These bombardments showed the necessity of national union. Whether she would repel or receive the foreigner, Japan must present a united front. To this end, great change in the internal constitution of the empire was needed; the internal resources of the nation had to be gathered into a common treasury; the police and the taxes had to be recognized as national, not as belonging to petty local chieftains; the power of the feudal lords had to be broken in order to reconstitute Japan as a single strong state under a single head. These are the ideas which led the way to the Restoration of 1868. Thus the bombardments of Kagoshima and Shimonosheki may be said to have helped indirectly in the Restoration of that year. But before we proceed to the history of the Restoration, let us examine what were the great Councils of Kuges and Daimios, which were sometimes convened during the period from 1857 to 1868. The Council of Kuges was occasionally convened by the order of the Emperor. It was composed of the princes of the blood, nobles, and courtiers. The Council of Daimios was now and then summoned either by the Emperor or by the Shogun. It was composed mostly of the Daimios. These councils were like the Witenagemot of England, formed of the wise and influential men of the kingdom. As the Daimios had far more weight in the political scale of the realm than the Kuges, so the council of the Daimios was of far more importance than that of the Kuges. But it must not be understood that these councils were regular meetings held in the modern parliamentary way; nor that they had anything like the powers of the British Parliament or of the American Congress. These councils of Japan were called into spasmodic life simply by the necessity of the time. They were held either at the court of Kioto or that of Yedo, or at other places appointed for the purpose. The Kuges or Daimios assembled rather in an informal way, measured by modern parliamentary procedure, but in accordance with the court etiquette of the time, whose most minute regulations and rules have often embarrassed and plagued the modern ministers accredited to the court of the Emperor. Then these councils proceeded to discuss the burning questions of the day, among which the most prominent was, of course, the foreign policy. The earliest instance of the meeting of the Council of Kuges was immediately after the news of Perry's arrival had reached the court of Kioto. "Upon this," says the author of Genje Yume Monogatari, "the Emperor was much disturbed, and called a council, which was attended by a number of princes of the blood and Kuges, and much violent language was uttered." From this time on we meet often with the record of these councils.[10] A native chronicler records that on the 29th day of the 12th month of 1857 "a meeting of all Daimios (present in Yedo) was held in the Haku-sho-in, a large hall in the castle of Yedo. The deliberations were not over till two o'clock on the morning of the 30th." Soon after this the Emperor ordered the Shogun to come to Kioto with all the Daimios and ascertain the opinion of the country. But the Shogun did not come, so the Emperor sent his envoy, Ohara Sammi, and called the meeting of the Daimios at Yedo in 1862, in which the noted Shimadzu Saburo was also present. In 1864 the council of Daimios was again held, and Minister Pruyn, in his letter to Mr. Seward, bears witness of the proceeding: "It is understood the great council of Daimios is again in session; that the question of the foreign policy of the government is again under consideration, and that the opposite parties are pretty evenly balanced."[11] From this time the council of Daimios was held every year, sometimes many times in the year, till the Revolution of 1868. These examples will suffice to show the nature and purpose of these councils of Kuges and Daimios. Let us next consider how these councils originated. The political development of Japan gives another illustration of one of the truths which Mr. Herbert Spencer unfolds in his Principles of Sociology. "Everywhere the wars between societies," says he, "originate governmental structures, and are causes of all such improvements in those structures as increase the efficiency of corporate action against environing societies."[12] Experience has shown that representative government is the most efficient in securing the corporate action of the various members of the body politic against foreign enemies. When a country is threatened with foreign invasion, when the corporate action of its citizens against their enemy is needed, it becomes an imperative necessity to consult public opinion. In such a time centralization is needed. Hence the first move of Japan after the advent of foreigners was to bring the scattered parts of the country together and unite them under one head. Japan had hitherto no formidable foreign enemy on her shores. So her governmental system--the regulating system of the social organism--received no impetus for self-development. But as soon as a formidable people, either as allies or foes, appeared on the scene in 1853, we immediately see the remarkable change in the state system of regulation in Japan. It became necessary to consult public opinion. Councils of Kuges and Daimios and meetings of Samurai sprung forth spontaneously. I believe, with Guizot, that the germ of representative government was not necessarily "in the woods of Germany," as Montesquieu asserts, or in the Witenagemot of England; that the glory of having a free government is not necessarily confined to the Aryan family or to its more favored branch, the Anglo-Saxons. I believe that the seed of representative government is implanted in the very nature of human society and of the human mind. When the human mind and the social organism reach a certain stage of development, when they are placed in such an environment as to call forth a united and harmonious action of the body politic, when education is diffused among the masses and every member of the community attains a certain degree of his individuality and importance, when the military form of society transforms itself into the industrial, then the representative idea of government springs forth naturally and irresistibly. And no tyrant, no despot, can obstruct the triumphal march of liberty. Whatever may be said about the soundness of the above speculation, it is certain that in the great councils of Kuges and Daimios and in the discussions of the Samurai, which the advent of the foreigners called into being, lay the germ of the future constitutional parliament of Japan. [Footnote 1: Genje Yume Monogatari. Translated by Mr. Ernest Satow, and published in the columns of the _Japan Mail_.] [Footnote 2: The original gives names of some prominent officials thus summoned.] [Footnote 3: This is also quoted in F.O. Adams's History of Japan, Vol. I., p. 109. I have compared the passage with the original and quote here with some modifications in the translation.] [Footnote 4: Jo-i means to expel the barbarians; Kai-Koku means to open the country.] [Footnote 5: Given also in Kai-Koku Simatsu, p. 166; Ansei-Kiji, pp. 219, 220.] [Footnote 6: Life of Ii Nawosuke Tokyo, 1888.] [Footnote 7: Dickson's Japan, p. 454.] [Footnote 8: American Executive Document, Diplomatic Correspondence, Part 3, 1865-66, p. 233, 1st Sess. 39th Cong.] [Footnote 9: American Executive Document, Diplomatic Correspondence, Part 3, 1864-65, p. 502, 2d Sess. 38th Cong.] [Footnote 10: See Ansei-Kiji, pages 1, 3, 57, 59, 61, 174, 192, 352; Bosin-Simatsu, Vol. II., pp. 4, 69; Vol. III., pp. 379, 414; Vol. IV., pp. 121, 152.] [Footnote 11: American Executive Document, Diplomatic Correspondence, Part 3, 1864-65, p. 486, 3d Sess. 38th Cong.] [Footnote 12: Principles of Sociology, p. 540.] CHAPTER II. THE RESTORATION. In the last chapter we have noticed what a commotion had been caused in Japan by the sudden advent of Commodore Perry, how the councils of Kuges and Daimios were called into spontaneous life by the dread of foreigners and by the sense of national weakness, and how the bombardments of Kagoshima and Shimonosheki tested these fears and taught the necessity of national union. I have remarked that free government is not necessarily the sole heritage of the Aryan race, but that the presence of foreigners, the change of the military form of society into the industrial form, the increase in importance of the individual in the community, are sure to breed a free and representative system of government. In the following chapter we shall see the downfall of the Shogunate, the restoration of the imperial power to its pristine vigor, and the destruction of feudalism. "The study of constitutional history is essentially a tracing of causes and consequences," says Bishop Stubbs, "not the collection of a multitude of facts and views, but the piecing of links of a perfect chain." I shall therefore not dwell upon the details of the events which led to the downfall of the Shogunate, but immediately enter into an inquiry concerning the causes. Three causes led to the final overthrow of the Shogunate: I. The Revival of Learning. The last half of the eighteenth and the first half of the present century witnessed in Japan an unusual intellectual activity. The long peace and prosperity of the country under the rule of the Tokugawa dynasties had fostered in every way the growth of literature and art. The Shoguns, from policy or from taste, either to find a harmless vent for the restless spirit of the Samura or from pure love of learning, have been constant patrons of literature. The Daimios, too, as a means of spending their leisure hours when they were not out hawking or revelling with their mistresses, gave no inattentive ear to the readings and lectures of learned men. Each Daimioate took pride in the number and fame of her own learned sons. Thus throughout the country eminent scholars arose. With them a new era of literature dawned upon the land. The new literature changed its tone. Instead of the servility, faint suggestiveness, and restrained politeness characteristic of the literature from the Gen-hei period to the first half of the Tokugawa period, that of the Revival Era began to wear a bolder and freer aspect. History came to be recorded with more truthfulness and boldness than ever before. But as the ancient histories were studied and the old constitution was brought into light, the real nature of the Shogunate began to reveal itself. To the eyes of the historians it became clear that the Shogunate was nothing but a military usurpation, sustained by fraud and corruption; that the Emperor, who was at that time, in plain words, imprisoned at the court of Kioto, was the real source of power and honor. "If this be the case, what ought we do?" was the natural question of these loyal subjects of the Emperor. The natural conclusion followed: the military usurper must be overthrown and the rightful ruler recognized. This was the sum and substance of the political programme of the Imperialists. The first sound of the trumpet against the Shogunate rose from the learned hall of the Prince of Mito, Komon. He, with the assistance of a host of scholars, finished his great work, the Dai Nihon Shi, or History of Japan, in 1715. It was not printed till 1851, but was copied from hand to hand by eager students, like the Bible by the medieval monks, or the works of Plato and Aristotle by the Humanists. The Dai Nihon Shi soon became a classic, and had such an influence in restoring the power of the Emperor that Mr. Ernest Satow justly calls its composer "the real author of the movement which culminated in the revolution of 1868." The voice of the Prince of Mito was soon caught up by the more celebrated scholar Rai Sanyo (1780-1833). A poet, an historian, and a zealous patriot, Rai Sanyo was the Arndt of Japan. He outlined in his Nihon Guai Shi the rise and fall of the Minister of State and the Shoguns, and with satire, invective, and the enthusiasm of a patriot, urged the unlawfulness of the usurpation of the imperial power by these mayors of the palace. In his Sei-Ki, or political history of Japan, he traced the history of the imperial family, and mourned with characteristic pathos the decadence of the imperial power. The labors of these historians and scholars bore in time abundant fruit. Some of their disciples became men of will and action: Sakuma Shozan, Yoshida Toraziro, Gesho, Yokoi Heishiro, and later Saigo, Okubo, Kido, and hosts of others, who ultimately realized the dreams of their masters. Out of the literary seed which scholars like Rai Sanyo spread broadcast over the country thus grew hands of iron and hearts of steel. This process shows how closely related are history and politics, and affords another illustration of the significance of the epigrammatic expression of Professor Freeman: "History is past politics, and politics present history." II. Another tributary stream which helped to swell the tide flowing toward the Emperor was the revival of Shintoism. The revival of learning is sure to be followed by the revival of religion. This is shown in the history of the Reformation in Europe, which was preceded by the revival of learning. Since the expulsion of Christianity from Japan in the sixteenth century, which was effected more from political than religious motives, laissez-faire was the steadfast policy of the Japanese rulers toward religious matters. The founder of the Tokugawa dynasty had laid down in his "Legacy" the policy to be pursued by his descendants. "Now any one of the people," says Iyeyasu, "can adhere to which (religion) he pleases (except the Christian); and there must be no wrangling among sects to the disturbance of the peace of the Empire." Thus while the people in the West, who worshipped the Prince of Peace, in his abused name were cutting each other's throat, destroying each other's property, torturing and proselyting by rack and flames, the islanders on the West Pacific coast were enjoying complete religious toleration. Three religions--Shintoism, Buddhism, and Confucianism--lived together in peace. In such a state of unrestricted competition among various religions, the universal law of the survival of the fittest acts freely. Buddhism was the fittest and became the predominant religion. Shintoism was the weakest and sank into helpless desuetude. But with the revival of learning, as Kojiki and other ancient literature were studied with assiduity, Shintoism began to revive. Its cause found worthy defenders in Motoori and Hirata. They are among the greatest Shintoists Japan has ever seen. Now, according to Shintoism, Japan is a holy land. It was made by the gods, whose lineal descendant is the Emperor. Hence he must be revered and worshipped as a god. This is the substance of Shintoism. The political bearing of such a doctrine upon the then existing status of the country is apparent. The Emperor, who is a god, the fountain of all virtue, honor, and authority, is now a prisoner at the court of Kioto, under the iron hand of the Tokugawa Shoguns. This state of impiety and irreverence can never be tolerated by the devout Shintoists. The Shogun must be dethroned and the Emperor raised to power. Here the line of arguments of the Shintoists meets with that of the scholars we have noted above. Thus both scholars and Shintoists have converted themselves into politicians who have at heart the restoration of the Emperor. III. Another cause which led to the overthrow of the Shogunate was the jealousy and cupidity of the Southern Daimios. Notably among them were the Daimios of Satsuma, Choshiu, Tosa, and Hizen. Their ancestors "had of old held equal rank and power with Iyeyasu, until the fortunes of war turned against them. They had been overcome by force, or had sullenly surrendered in face of overwhelming odds. Their adherence to the Tokugawas was but nominal, and only the strong pressure of superior power was able to wring from them a haughty semblance of obedience. They chafed perpetually under the rule of one who was in reality a vassal like themselves."[1] They now saw in the rising tide of public sentiment against the Tokugawa Shogunate a rare opportunity of accomplishing their cherished aim. They lent their arms and money for the support of the patriots in carrying out their plan. Satsuma and Choshiu became the rendezvous of eminent scholars and zealous patriots. And in the council-halls of Satsuma and Choshiu were hatched the plots which were soon to overthrow the effete Shogunate. Thus everything was ready for the revolution of 1868 before Perry came. We saw the Shogun, under the bombastic title of Tycoon, in spite of the remonstrance of the Emperor and his court, conclude a treaty with Perry at Kanagawa in 1854. Here at last was found a pretext for the Imperialists to raise arms against the Shogun. The Shogun or his ministers had no right to make treaties with foreigners. Such an act was, in the eyes of the patriots, heinous treason. The cry of "Destroy the Shogunate and raise the Emperor to his proper throne!" rang from one end of the empire to the other. The constant disturbance of the country, the difficulty of foreign intercourse, the sense of necessity of a single and undoubted authority over the land, and the outcry of the Samurai thus raised against the Shogun, finally led to his resignation on November 19, 1867. His letter of resignation, in the form of a manifesto to the Daimios, runs thus: "A retrospect of the various changes through which the empire has passed shows us that after the decadence of the monarchical authority, power passed into the hands of the Minister of State; that by the wars of 1156 to 1159 the governmental power came into the hands of the military class. My ancestor received greater marks of confidence than any before him, and his descendants have succeeded him for more than two hundred years. Though I perform the same duties, the objects of government and the penal laws have not been attained, and it is with feelings of greatest humiliation that I find myself obliged to ackowledge my own want of virtue as the cause of the present state of things. Moreover, our intercourse with foreign powers becomes daily more extensive, and our foreign policy cannot be pursued unless directed by the whole power of the country. "If, therefore, the old régime be changed and the governmental authority be restored to the imperial court, if the councils of the whole empire be collected and the wise decisions received, and if we unite with all our heart and with all our strength to protect and maintain the empire, it will be able to range itself with the nations of the earth. This comprises our whole duty towards our country. "However, if you (the Daimios) have any particular ideas on the subject, you may state them without reserve."[2] The resignation of the Shogun was accepted by the Emperor by the following imperial order, issued on the 10th day of the 12th month: "It has pleased the Emperor to dismiss the present Shogun, at his request, from the office of Shogun." As to the full intent and motive of the Shogun in resigning his power, let him further speak himself. In the interview of the British minister, Sir Harry S. Parkes, and the French minister, M. Leon Koches, with the Shogun, it is stated that he said: "I became convinced last autumn that the country would no longer be successfully governed while the power was divided between the Emperor and myself. The country had two centres, from which orders of an opposite nature proceeded. Thus, in the matter of the opening of Hiogo and Osako, which I quote as an example of this conflict of authority, I was myself convinced that the stipulations of the treaties must be observed, but the assent of the Emperor to my representations on this subject was given reluctantly. I therefore, for the good of my country, informed the Emperor that I resigned the governing power, with the understanding that an assembly of Daimios was convened for the purpose of deciding in what manner, and by whom, the government in future should be carried on. In acting thus, I sunk my own interests and power handed down to me by my ancestors, in the more important interests of the country.[3].... "My policy, from the commencement, has been to determine this question of the future form of government in a peaceful manner, and it is in pursuance of the same object that, instead of opposing force by force, I have retired from the scene of dispute..... "As to who is the sovereign of Japan, it is a question on which no one in Japan can entertain a doubt. The Emperor is the sovereign. My object from the first has been to take the will of the nation as to the future government. If the nation should decide that I ought to resign my powers, I am prepared to resign them for the good of my country..... "I have no other motive but the following: With an honest love for my country and the people, I resigned the governing power which I inherited from my ancestors, and with the mutual understanding that I should assemble all the nobles of the empire to discuss the question disinterestedly, and adopting the opinion of the majority, decide upon the reformation of the national constitution, I left the matter in the hands of the imperial court."[4] Thus was the Shogunate overthrown and the Restoration effected. The civil war which soon followed need not detain us, for the war itself had no great consequence as regards the constitutional development of the country. Let us now consider the form of the new government. It is essentially that which prevailed in Japan before the development of feudalism. It is modelled on the form of government of the Osei era. The new government was composed of: 1. Sosai ("Supreme Administrator"). He was assisted by Fuku, or Vice-Sosai. The Sosai resembled the British Premier, was the head of the chief council of the government. 2. Gijio, or "Supreme Council," whose function was to discuss all questions and suggest the method of their settlement to the Sosai. It was composed of ten members, five of whom were selected from the list of Kuges and five from the great Daimios. 3. Sanyo, or "Associate Council." They were subordinate officers, and were selected from the Daimios as well as from the retainers. This council finally came to have great influence, and ultimately transformed itself into the present cabinet. The government was divided into eight departments: 1. The Sosai Department. This soon changed into Dai-jo-Kuan. 2. Jingi-Jimu-Kioku, or Department of the Shinto Religion. This department had charge of the Shinto temples, priests, and festivals. 3. Naikoku-Jimu-Kioku, or Department of Home Affairs. This department had charge of the capital and the five home provinces, of land and water transport in all the provinces, of post-towns and post-roads, of barriers and fairs, and of the governors of castles, towns, ports, etc. 4. Guaikoku-Jimu-Kioku, or Department of Foreign Affairs. This department had charge of foreign relations, treaties, trade, recovery of lands, and sustenance of the people. 5. Gumbu-Jimu-Kioku, or War Department. This department had charge of the naval and military forces, drilling, protection of the Emperor, and military defences in general. 6. Kuaikei-Jimu-Kioku, or Department of Finance. This department had charge of the registers of houses and population, of tariff and taxes, money, corn, accounts, tribute, building and repairs, salaries, public storehouses, and internal trade. 7. Keiho-Jimu-Kioku, or Judicial Department. This department had charge of the censorate, of inquisitions, arrests, trials, and the penal laws in general. 8. Seido-Jimu-Kioku, or Legislative Department. This department had charge of the superintendence of offices, enactments, sumptuary regulations, appointments, and all other laws and regulations, "It is easy to destroy, but difficult to construct," is an old adage of statesmen. The truth of this utterance was soon realized by the leaders of the new government. The first thing which the new government had to settle was its attitude toward foreign nations. The leaders of the government who had once opposed with such vehemence, as we have seen, the foreign policy of the Tokugawa Shogun, now that he had been overthrown, urged the necessity of amicable relations with foreign powers in the following memorable memorial[5] to the Dai-jo-Kuan (Government): "The undersigned, servants of the Crown, respectfully believe that from ancient times decisions upon important questions concerning the welfare of the empire were arrived at after consideration of the actual political condition and its necessities, and that thus results were obtained, not of mere temporary brilliancy, but which bore good fruits in all time.... "Among other pressing duties of the present moment we venture to believe it to be pre-eminently important to set the question of foreign intercourse in a clear light. "His Majesty's object in creating the office of administrator of foreign affairs, and selecting persons to fill it, and otherwise exerting himself in that direction, has been to show the people of his empire in what light to look on this matter, and we have felt the greatest pleasure in thinking that the imperial glory would now be made to shine forth before all nations. An ancient proverb says that 'Men's minds resemble each other as little as their faces,' nor have the upper and lower classes been able, up to the present, to hold with confidence a uniform opinion. It gives us some anxiety to feel that perhaps we may be following the bad example of the Chinese, who, fancying themselves alone great and worthy of respect, and despising foreigners as little better than beasts, have come to suffer defeats at their hands and to have it lorded over themselves by those foreigners. "It appears to us, therefore, after mature reflection, that the most important duty we have at present is for high and low to unite harmoniously in understanding the condition of the age, in effecting a national reformation and commencing a great work, and that for this reason it is of the greatest necessity that we determine upon the attitude to be observed towards this question. "Hitherto the empire has held itself aloof from other countries and is ignorant of the affairs of the world; the only object sought has been to give ourselves the least trouble, and by daily retrogression we are in danger of falling under foreign rule. "By travelling to foreign countries and observing what good there is in them, by comparing their daily progress, the universality of enlightened government, of a sufficiency of military defences, and of abundant food for the people among them, with our present condition, the causes of prosperity and degeneracy may be plainly traced.... "Of late years the question of expelling the barbarians has been constantly agitated, and one or two Daimios have tried to expel them, but it is unnecessary to prove that this was more than the strength of a single clan could accomplish.... "How ever, in order to restore the fallen fortunes of the empire and to make the imperial dignity respected abroad, it is necessary to make a firm resolution, and to get rid of the narrow-minded ideas which have prevailed hitherto. We pray that the important personages of the court will open their eyes and unite with those below them in establishing relations of amity in a single-minded manner, and that our deficiencies being supplied with what foreigners are superior in, an enduring government be established for future ages. Assist the Emperor in forming his decision wisely and in understanding the condition of the empire; let the foolish argument which has hitherto styled foreigners dogs and goats and barbarians be abandoned; let the court ceremonies, hitherto imitated from the Chinese, be reformed, and the foreign representatives be bidden to court in the manner prescribed by the rules current amongst all nations; and let this be publicly notified throughout the country, so that the countless people may be taught what is the light in which they are to regard this subject. This is our most earnest prayer, presented with all reverence and humility. "ECHIZEN SAISHO, TOSA SAKIO NO SHOSHO, NAGATO SHOSHO, SATSUMA SHOSHO, AKI SHOSHO, HOSO KAWA UKIO DAIBU." The advice of these notables was well received. A formal invitation to an audience with the Emperor was extended to the foreign ambassadors. They soon accepted the invitation. Their appearance in the old anti-foreign city of Kioto, before the personage who was considered by the masses as divine, was significant. It put an end to the all-absorbing, all-perplexing theme of the day. The question of foreign policy was settled. The next act of the statesmen of the Restoration was to sweep away the abuses of the court, and to establish the basis of a firm internal administration. The most effectual means of accomplishing this, it seemed to the sagacious statesmen, was to move the court from the place where those abuses had their roots. Ichizo Okubo,[6] a guiding spirit of the Restoration, presented the following memorial to the Emperor: "The most pressing of your Majesty's pressing duties at the present moment is not to look at the empire alone and judge carelessly by appearances, but to consider carefully the actual state of the whole world; to reform the inveterate and slothful habits induced during several hundred years, and to give union to the nation.... "Hitherto the person whom we designate the sovereign has lived behind a screen, and, as if he were different from other human beings, has not been seen by more than a very limited number of Kuge; and as his heaven-conferred office of father to his people has been thereby unfulfilled, it is necessary that his office should be ascertained in accordance with this fundamental principle, and then the laws governing internal affairs may be established.... "In the present period of reformation and restoration of the government to its ancient monarchical form, the way to carry out the resolution of imitating the example of Japanese sages, and of surpassing the excellent governments of foreign nations, is to change the site of the capital.... "Osako is the fittest place for the capital ... For the conduct of foreign relations, for enriching the country and strengthening its military power, for adopting successful means of offense and defense, for establishing an army and navy, the place is peculiarly fitted by its position ... I most humbly pray your Majesty to open your eyes and make this reform.... "OKUBO ICHIZO."[7] The result of the memorial was the ultimate removal of the seat of government from Kioto to Yedo, which afterwards changed its name to Tokio, meaning eastern capital. But the most important event of the Restoration, from the constitutional point of view, was the charter oath of five articles, taken by the present Emperor on the 17th of April, 1869, before the court and the assembly of Daimios. These articles were in substance as follows: 1. A deliberative assembly should be formed, and all measures be decided by public opinion. 2. The principles of social and political economics should be diligently studied by both the superior and inferior classes of our people. 3. Every one in the community shall be assisted to persevere in carrying out his will for all good purposes. 4. All the old absurd usages of former times should be disregarded, and the impartiality and justice displayed in the workings of nature be adopted as a basis of action. 5. Wisdom and ability should be sought after in all quarters of the world for the purpose of firmly establishing the foundations of the empire. The Emperor's promise henceforth became the watchword of the nation. And this resolution to form a deliberative assembly was soon put into practice. In 1869 was convened the Kogisho or "Parliament," as Sir Harry Parkes translates it in his despatch to the Earl of Clarendon. But before we proceed to the description of the nature and working of the Kogisho it is necessary to state that this plan had been already suggested by the Shogunate. A proclamation of the Shogun Keiki, issued on February 20, 1868, says: "As it is proper to determine the principle of the constitution of Japan with due regard to the wishes of the majority, I have resigned the supreme power to the Emperor's court, and advised that the opinions of all the Daimios should be taken.... On examination of my household affairs (the administration of Shogun's territories), many irregularities may exist which may dissatisfy the people, and which I therefore greatly deplore. Hence I intend to establish a Kogijio and to accept the opinion of the majority. Any one, therefore, who has an opinion to express may do so at that place and be free of apprehension."[8] But this attempt of the Shogun to establish a sort of Parliament came to an end with his fall. This idea, however, was transmitted through the Shogunate officials to the government of the Restoration. In fact, this idea of consulting public opinion was, as I have repeatedly said, in the air. The leaders of the new government all felt, as one of them said to Messrs. F.O. Adams and Ernest Satow, that "the only way to allay the jealousies hitherto existing between several of the most powerful clans, and to ensure a solid and lasting union of conflicting interests, was to search for the nearest approach to an ideal constitution among those of Western countries ... that the opinion of the majority was the only criterion of a public measure."[9] Sir Harry Parkes was right when he told the Earl of Clarendon that "the establishment of such an institution (the Kogisho) formed one of the first objects of the promoters of the recent revolution."[10] The Kogisho was opened on the 18th of April, 1869,[11] and the following message[12] from the throne was then delivered: "Being on the point of visiting our eastern capital, we have convened the nobles of our court and the various princes in order to consult them upon the means of establishing the foundations of peaceful government. The laws and institutions are the basis of government. The petitions of the people at large cannot be lightly decided. It has been reported to us that brief rules and regulations have been fixed upon for the Parliament, and it seems good to us that the House should be opened at once. We exhort you to respect the laws of the House, to lay aside all private and selfish considerations, to conduct your debates with minuteness and firmness; above all things, to take the laws of our ancestors as 'basis,' and adapt yourselves to the feelings of men and to the spirit of the times. Distinguish clearly between those matters which are of immediate importance and those which may be delayed; between things which are less urgent and those which are pressing. In your several capacities argue with careful attention. When the results of your debate are communicated to us it shall be our duty to confirm them." The Kogisho was composed mostly of the retainers of the Daimios, for the latter, having no experience of the earnest business of life, "were not eager to devote themselves to the labors of an onerous and voluntary office." Akidzuki Ukio No Suke was appointed President of the Kogisho. The object of the Kogisho was to enable the government to sound public opinion on the various topics of the day, and to obtain the assistance of the country in the work of legislation by ascertaining whether the projects of the government were likely to be favorably received. The Kogisho, like the Councils of Kuges and Daimios, was nothing but an experiment, a mere germ of a deliberative assembly, which only time and experience could bring to maturity. Still Kogisho was an advance over the council of Daimios. It had passed the stage resembling a mere deliberative meeting or quiet Quaker conference, where, for hours perhaps, nobody opens his mouth. It now bore an aspect of a political club meeting. But it was a quiet, peaceful, obedient debating society. It has left the record of its abortive undertakings in the "Kogisho Nishi" or journal of "Parliament." The Kogisho was dissolved in the year of its birth. And the indifference of the public about its dissolution proves how small an influence it really had. But a greater event than the dissolution of the Kogisho was pending before the public gaze. This was the abolition of feudalism, which we shall consider in the next chapter. [Footnote 1: The Mikado's Empire. Griffis, p. 301.] [Footnote 2: American Executive Document, Diplomatic Correspondence, 1867, Part II., p. 78, 2d Sess. 40th Cong. See also Bosin-Simatsu, Vol. I., p. 2.] [Footnote 3: American Executive Document, Diplomatic Correspondence, Vol. I., 1868-69, p. 620, 3d Sess. 40th Cong.] [Footnote 4: American Executive Document, Diplomatic Correspondence, Vol. I., 1868-69, 3d Sess. 40th Cong.] [Footnote 5: Translation from the Kioto Government Gazette of March, 1868. It is given in Diplomatic Correspondence of the U.S.A., 3d Sess. 40th Cong., Vol. I, 1868-69, p. 725.] [Footnote 6: He afterwards changed his name into Toshimitsu Okubo.] [Footnote 7: Translation is given in American Executive Document, Diplomatic Correspondence, Vol. I, 1868-69, p. 728, 3d Sess. 40th Cong.] [Footnote 8: American Executive Document, Diplomatic Correspondence, Vol. I., 1868-69, p. 687, 3d Sess. 40th Cong.] [Footnote 9: F.O. Adams' History of Japan, Vol. II., p. 128.] [Footnote 10: English State Papers, Vol. LXX., 1870, p. 9.] [Footnote 11: 29th of the 2d month in the second year of Meiji, according to the old calendar.] [Footnote 12: Translation is given in English State Papers, Vol. LXX., 1871, p. 12.] CHAPTER III. THE ABOLITION OF FEUDALISM. The measure to abolish feudalism was much discussed in the Kogisho before its dissolution. Prince Akidzuki, President of the Kogisho, had sent in the following memorial: "After the government had been returned by the Tokugawa family into the hands of the Emperor, the calamity of war ensued, and the excellence of the newly established administration has not yet been able to perfect itself; if this continues, I am grieved to think how the people will give up their allegiance. Happily, the eastern and northern provinces have already been pacified and the country at large has at last recovered from its troubles. The government of the Emperor is taking new steps every day; this is truly a noble thing for the country. And yet when I reflect, I see that although there are many who profess loyalty, none have yet shown proof of it. The various princes have used their lands and their people for their own purposes; different laws have obtained in different places; the civil and criminal codes have been various in the various provinces. The clans have been called the screen of the country, but in truth they have caused its division. The internal relations having been confused, the strength of the country has been disunited and severed. How can our small country of Japan enter into fellowship with the countries beyond the sea? How can she hold up an example of a flourishing country? Let those who wish to show their faith and loyalty act in the following manner, that they may firmly establish the foundations of the Imperial Government: "1. Let them restore the territories which they have received from the Emperor and return to a constitutional and undivided nation. "2. Let them abandon their titles, and under the name of Kuazoku (persons of honor) receive such small properties as may suffice for their wants. "3. Let the officers of the clans abandoning that title call themselves officers of the Emperor, receiving property equal to that which they have hitherto held. "Let these three important measures be adopted forthwith, that the empire may be raised on a basis imperishable for ages ... 2nd year of Meiji (1869). (Signed) "AKIDZUKI UKIO NO SUKE."[1] But politics is not an easy game--a game which a pedant or a sentimental scholar or an orator can leisurely play. It has to deal with passions, ambitions, and selfish interests of men, as well as with the moral and intellectual consciousness of the people. Tongue and pen wield, undoubtedly, a great influence in shaping the thought of the nation and impressing them with the importance of any political measure. But the tongue is as sounding brass and the pen as useless steel unless they are backed by force and money. Even in such a country as England, where tongue and pen seem to reign supreme, a prime minister before he forms his cabinet has to be closeted for hours with Mr. Rothschild. Fortunately this important measure of abolishing feudalism, which a few patriots had secretly plotted and which the scholars had noised abroad, was taken up first by the most powerful and wealthy Daimios of the country. In the following noted memorial, after reviewing the political history of Japan during the past few hundred years, these Daimios said: "Now the great Government has been newly restored and the Emperor himself undertakes the direction of affairs. This is, indeed, a rare and mighty event. We have the name (of an Imperial Government), we must also have the fact. Our first duty is to illustrate our faithfulness and to prove our loyalty. When the line of Tokugawa arose it divided the country amongst its kinsfolk, and there were many who founded the fortunes of their families upon it. They waited not to ask whether the lands and men that they received were the gift of the Emperor; for ages they continued to inherit these lands until this day. Others said that their possessions were the prize of their spears and bows, as if they had entered storehouses and stolen the treasure therein, boasting to the soldiers by whom they were surrounded that they had done this regardless of their lives. Those who enter storehouses are known by all men to be thieves, but those who rob lands and steal men are not looked upon with suspicion. How are loyalty and faith confused and destroyed! "The place where we live is the Emperor's land and the food which we eat is grown by the Emperor's men. How can we make it our own? We now reverently offer up the list of our possessions and men, with the prayer that the Emperor will take good measures for rewarding those to whom reward is due and for taking from those to whom punishment is due. Let the imperial orders be issued for altering and remodelling the territories of the various clans. Let the civil and penal codes, the military laws down to the rules for uniform and the construction of engines of war, all proceed from the Emperor; let all the affairs of the empire, great and small, be referred to him." This memorial was signed by the Daimios of Kago, Hizen, Satsuma, Choshiu, Tosa, and some other Daimios of the west. But the real author of the memorial is believed to have been Kido, the brain of the Restoration. Thus were the fiefs of the most powerful and most wealthy Daimios voluntarily offered to the Emperor. The other Daimios soon followed the example of their colleagues. And the feudalism which had existed in Japan for over eight centuries was abolished by the following laconic imperial decree of August, 1871: "The clans are abolished, and prefectures are established in their places." This rather off-hand way of destroying an institution, whose overthrow in Europe required the combined efforts of ambitious kings and emperors, of free cities, of zealous religious sects, and cost centuries of bloodshed, has been made a matter of much comment in the West. One writer exclaims, "History does not record another instance where changes of such magnitude ever occurred within so short a time, and it is astonishing that it only required eleven words to destroy the ambition and power of a proud nobility that had with imperious will directed the destiny of Japan for more than five hundred years."[2] But when we examine closely the circumstances which led to the overthrow of feudalism and the influences which acted upon it, we cannot but regard it as the natural terminus of the political flood which was sweeping over the country. When such a revolution of thought as that expressed in the proclamation of 1868 had taken place in the minds of the leaders of society, when contact with foreigners had fostered the necessity of national union, when the spirit of loyalty of the Samurai had changed to loyalty to his Emperor, when his patriotic devotion to his province had changed to patriotic devotion to his country, then it became apparent that the petty social organization, which was antagonistic to these national principles, would soon be crushed. If there is any form of society which is diametrically opposed to the spirit of national union, of liberal thought, of free intercourse, it is feudal society. A monarchical or a democratic society encourages the spirit of union, but feudal society must, from its very nature, smother it. Seclusion is the parent of feudalism. In our enlightened and progressive century seclusion is no longer possible. Steam and electricity alone would have been sufficient to destroy our Japanese feudalism. But long before its fall our Japanese feudalism "was an empty shell." Its leaders, the Daimios of provinces, were, with a few exceptions, men of no commanding importance. "The real power in each clan lay in the hands of able men of inferior rank, who ruled their masters." From these men came the present advisers of the Emperor. Their chief object at that time was the thorough unification of Japan. Why, then, should they longer trouble themselves to uphold feudalism, this mother of sectionalism, this colossal sham? [Footnote 1: Translation given in the English State Papers.] [Footnote 2: Consular Report of the U.S.A., No. 75, p. 626.] CHAPTER IV. INFLUENCES THAT SHAPED THE GROWTH OF THE REPRESENTATIVE IDEA OF GOVERNMENT. We have seen in the last two chapters how the Shogunate and feudalism fell, and how the Meiji government was inaugurated. We have also observed in the memorials of leading statesmen abundant proof of their willingness and zeal to introduce a representative system of government. We have also seen the Kogisho convened and dissolved. John Stuart Mill has pointed out, in his Representative Government, several social conditions when representative government is inapplicable or unsuitable: 1. When the people are not willing to receive it. 2. When the people are not willing and able to do what is necessary for its preservation. "Representative institutions necessarily depend for permanence upon the readiness of the people to fight for them in case of their being endangered." 3. When the people are not willing and able to fulfil the duties and discharge the functions which it imposes on them. 4. When the people have not learned the first lesson of obedience. 5. When the people are too passive; when they are ready to submit to tyranny. Now when we look at the Japan of 1871, even her greatest admirers must admit that she was far from being able to fulfil the social conditions necessary for the success of representative government. Japan was obedient, but too submissive. She had not yet learned the first lesson of freedom, that is, when and how to resist, in the faith that resistance to tyrants is obedience to truth; that the irrepressible kicker against tyranny, as Dr. Wilson observes, is the only true freeman. In her conservative, almost abject submission, Japan was yet unfit for free government. The Japanese people were willing to do almost anything suggested by their Emperor, but they had first to learn what was meant by representative government, "to understand its processes and requirements." The Japanese had to discard many old habits and prejudices, reform many defects of national character, and undergo many stages of moral and mental discipline before they could acclimatize themselves to the free atmosphere of representative institutions. This preparation required a period of little over two decades, and was effected not only through political discipline, but by corresponding development in the moral, intellectual, social, and industrial life of the nation. I remarked in the beginning that the political activity of a nation is not isolated from other spheres of its activities, but that there is a mutual interchange of action and reaction among the different factors of social life, so that to trace the political life of a nation it is not only necessary to describe the organ through which it acts, the governmental machinery, and the methods by which it is worked, but to know "the forces which move it and direct its course." Now these forces are political as well as non-political. This truth is now generally acknowledged by constitutional writers. Thus, the English author of "The American Commonwealth" devotes over one-third of his second volume to the account of non-political institutions, and says "there are certain non-political institutions, certain aspects of society, certain intellectual or spiritual forces which count for so much in the total life of the country, in the total impression it makes and the hopes for the future which it raises, that they cannot be left unnoticed."[1] If this be the case in the study of the American commonwealth, it is more so in that of Japanese politics. For nowhere else in the history of nations do we see "non-political institutions" exerting such a powerful influence upon the body politic as in New Japan. In this chapter we shall therefore note briefly the growth of so-called "non-political institutions" during a period of about a decade and a half, between 1868 and 1881, and mark their influence upon the development of representative ideas. I.--MEANS OF COMMUNICATION. 1. Telegraph. At the time of the Restoration there was no telegraph in operation, and "for expresses the only available means were men and horses." In 1868 the government began to construct telegraphs, and the report of the Bureau of Statistics in 1881 shows the following increase in each successive year: Telegraph Number Year. Offices. Miles. of Telegrams. Ri Cho. 1869-1871 8 26.04 19,448 1872 29 33.11 80,639 1873 40 1,099.00 186,448 1874 57 1,333.20 356,539 1875 94 1,904.32 611,866 1876 100 2,214.07 680,939 1877 122 2,827.08 1,045,442 1878 147 3,380.05 1,272,756 1879 195 3,842.31 1,935,320 1880 195 4,484.30 2,168,201 All the more important towns in the country were thus made able to communicate with one another as early as 1880. In 1879 Japan joined the International Telegraph Convention, and since then she can communicate easily with the great powers of the world through the great submarine cable system. "Compared with the state of ten years ago, when the ignorant people cut down the telegraph poles and severed the wires," exclaims Count Okuma, "we seem rather to have made a century's advance." 2. Postal System. "Previous to the Restoration," to quote further from Count Okuma, "with the exception of the posts sent by the Daimios from their residences at the capital to their territories, there was no regularly established post for the general public and private convenience. Letters had to be sent by any opportunity that occurred, and a single letter cost over 25 sen for a distance of 150 ri. But since the Restoration the government for the first time established a general postal service, and in 1879 the length of postal lines was 15,700 ri (nearly 40,000 English miles), and a letter can at any time be sent for two sen to any part of the country. In 1874 we entered the International Postal Convention, and have thus obtained great facilities for communicating with foreign countries."[2] 3. Railroad. The first railway Japan ever saw was the model railway constructed by Commodore Perry to excite the curiosity of the people. But it was not until 1870 that the railroad was really introduced into Japan. The first rail was laid on the road between Tokio and Yokohama. This road was opened in 1872. It is 18 miles long. The second line was constructed in 1876, and runs between Hiogo and Kioto via Osako. And the year 1880 saw the opening of the railroad between Kioto and Otsu. This line between Hiogo and Otsu is 58 miles long. So at the end of the period which we are surveying Japan had a railway system of 31 ri and 5 cho (about 78 English miles). This was nothing but a child-play compared with the railroad activity which the later years brought forth, for now we have a railway system extending over one thousand two hundred miles. But this concerns the later period, so we shall not dwell upon it at present. 4. Steamers and the coasting trade. In 1871 the number of ships of foreign build was only 74, but by 1878 they had reached 377. The number of vessels of native build in 1876 was 450,000, and in 1878 had reached 460,000.[3] "Since the Restoration the use of steamers has daily increased, and the inland sea, the lakes and large rivers are now constantly navigated by small steamers employed in the carrying trade." With the increased facility of communication, commerce and trade were stimulated. In 1869 the total amount of imports and exports was 33,680,000 yen, and in 1879 64,120,000 yen. Imports had grown from 20,780,000 yen to 36,290,000 yen, and exports from 12,909,000 yen to 27,830,000 yen; in the one case showing an advance from 2 to 3-1/2, in the other from 2 to 5.[4] II.--EDUCATIONAL INSTITUTIONS. Previous to the Restoration, the schools supported by Daimios and the private schools were few in number; but since that epoch the educational system has been vastly improved, with a resulting increase in the number of schools and pupils. In 1878, of high, middle, and primary schools there were altogether 27,600, with 68,000 teachers and 2,319,000 pupils.[5] The following table shows the comparative history of educational institutions within three years, 1878-1880 (inclusive): Teachers. Pupils. Year. Institutions. Male. Female. Male. Female. 1878 27,672 66,309 2,374 1,715,425 610,214 1879 29,362 71,757 2,803 1,771,641 608,205 1880 30,799 74,747 2,923 1,844,564 605,781 Furthermore, hundreds of students went abroad yearly, and returning, powerfully influenced the destiny of their country. III.--NEWSPAPERS. It was in 1869 that the Emperor sanctioned the publication of newspapers. Magazines, journals, periodicals and newspapers sprung up in a night. The number of newspapers published in 1882 was about 113, and of miscellaneous publications about 133. It is to be noted that the newspapers defied the old censorship of prohibition under very sanguinary pains and penalties. Their circulation increased every year. The total newspaper circulation in 1874 was but 8,470,269, while in 1877 it was 33,449,529. In his consular report of 1882, Consul-General Van Buren makes an approximate estimate of the annual aggregate circulation of a dozen noted papers of Tokio to be not less than 29,000,000 copies.[6] The publication of books and translations kept pace with the growth of newspapers. Observing the effects of these literary activities, Mr. Griffis well says: "It is the writer's firm belief, after nearly four years of life in Japan, mingling among the progressive men of the empire, that the reading and study of books printed in the Japanese language have done more to transform the Japanese mind and to develop an impulse in the direction of modern civilization than any other cause or series of causes." Meanwhile, great changes were affecting law and religion. Here it is sufficient to observe that the old law which had been hitherto altogether arbitrary--either the will of the Emperor or of the Shogun--was revised on the model of the Napoleonic code and soon published throughout the land. The use of torture to obtain testimony was wholly and forever abolished. With the incoming of Western science and Christianity, old faiths began to lose their hold upon the people. The new religion spread yearly. Missionary schools were instituted in several parts of the country. Christian churches were built in almost all of the large cities and towns, and their number increased constantly. Missionaries and Christian schools had no inconsiderable influence in changing the ideas of the people. Such, in brief, have been the changes in the industrial, social and religious condition of Japan from 1868 to 1881. After this study we shall not much wonder at the remarkable political change of Japan during the same period, which I shall endeavor to describe in the next chapter. [Footnote 1: The American Commonwealth, Bryce, Vol. I., p. 7.] [Footnote 2: A Survey of Financial Policy during Thirteen Years (1868-1880), by Count Okuma.] [Footnotes 3, 4, 5: Count Okuma's pamphlet.] [Footnote 6: Consular Report of the U.S., No. 25, p. 182.] CHAPTER V. PROGRESS OF THE CONSTITUTIONAL MOVEMENT FROM THE ABOLITION OF FEUDALISM TO THE PROCLAMATION OF OCTOBER 12, 1881. The leaders of the Restoration were of an entirely different type from the court nobles of former days. They were, with a few exceptions, men of humble origin. They had raised themselves from obscurity to the highest places of the state by sheer force of native ability. They had studied much and travelled far. Their experiences were diverse; they had seen almost every phase of society. If they were now drinking the cup of glory, most of them had also tasted the bitterness of exile, imprisonment, and fear of death. Patriotic, sagacious, and daring, they combined the rare qualities of magnanimity and urbanity. If they looked with indifference upon private morality, they were keenly sensitive to the feeling of honor and to public morals. If they made mistakes and did not escape the charge of inconsistency in their policy, these venial faults were, for the most part, due to the rapidly changing conditions of the country. No other set of statesmen of Japan or of any other country, ancient or modern, have witnessed within their lifetime so many social and political transformations. They saw the days when feudalism flourished--the grandeur of its rulers, its antique chivalry, its stately etiquette, its ceremonial costumes, its codes of honor, its rigid social order, formal politeness, and measured courtesies. They also saw the days when all these were swept away and replaced by the simplicity and stir of modern life. They accordingly "have had to cast away every tradition, every habit, and every principle and mode of action with which even the youngest of them had to begin official life." The ranks of this noble body of statesmen and reformers are now gradually diminishing. Saigo and Gesho are no more. Kido and Iwakura have been borne to their graves. Okubo and Mori have fallen under the sword of fanatics. But, thanks be to God, many of them yet remain and bear the burdens of the day. I have mentioned in Chapter III. the overthrow of feudalism and its causes. Its immediate effect on the nation, in unifying their thoughts, customs, and habits, was most remarkable. From this time we see the marked growth of common sentiment, common manners, common interest among the people, together with a love of peace and order. While the government at home was thus tearing down the old framework of state, the Iwakura Embassy in foreign lands was gathering materials for the new. This was significant, inasmuch as five of the best statesmen of the time, with their staff of forty-four able men, came into association for over a year with western peoples, and beheld in operation their social, political and religious institutions. These men became fully convinced that "the wealth, the power, and the happiness of a people," as President Grant told them, "are advanced by the encouragement of trade and commercial intercourse with other powers, by the elevation and dignity of labor, by the practical adaptation of science to the manufactures and the arts, by increased facilities of frequent and rapid communication between different parts of the country, by the encouragement of immigration, which brings with it the varied habits and diverse genius and industry of other lands, by a free press, by freedom of thought and of conscience, and a liberal toleration in matters of religion."[1] The impressions and opinions of these men on the importance of a free and liberal policy can be gleaned from the speeches they made during the western tour, and some of their writings and utterances on other occasions. The chief ambassador, Iwakura, in reply to a toast made to him in England, said: "Having now become more intimately acquainted with her (England's) many institutions, we have discovered that their success is due to the _liberal_ and energetic spirit by which they are animated."[2] Count Ito, the present President of the Privy Council, in his speech at San Francisco, said: "While held in absolute obedience by despotic sovereigns through many thousand years, our people knew no freedom or liberty of thought. With our material improvement they learned to understand their rightful privileges, which for ages have been denied them."[3] Count Inouye, the ex-Minister of State for Agriculture and Commerce, in his memorial to the government in 1873, said: "The people of European and American countries are for the most part rich in intelligence and knowledge, and they preserve the spirit of independence. And owing to the nature of their polity they share in the counsels of their government. Government and people thus mutually aid and support each other, as hand and foot protect the head and eye. The merits of each question that arises are distinctly comprehended by the nation at home, and the government is merely its outward representative. But our people are different. Accustomed for ages to despotic rule, they have remained content with their prejudices and ignorance. Their knowledge and intelligence are undeveloped and their spirit is feeble. In every movement of their being they submit to the will of the government, and have not the shadow of an idea of what 'a right' is. If the government makes an order, the whole country obeys it as one man. If the government takes a certain view, the whole nation adopts it unanimously.... The people must be recalled to life, and the Empire be made to comprehend with clearness that the objects which the government has in view are widely different from those of former times."[4] If the passages quoted illustrate statesmen's zeal to introduce western civilization, and to educate the people gradually to political freedom and privileges, their actions speak more eloquently than their words. In order to crush that social evil, the class system, which for ages had been a curse, the government declared all classes of men equal before the law, delivered the _eta_--the class of outcasts--from its position of contempt, abolished the marriage limitations existing between different classes of society, prohibited the wearing of swords, which was the peculiar privilege of the nobles and the Samurai; while to facilitate means of communication and to open the eyes of the people to the wonders of mechanical art, they incessantly applied themselves to the construction of railroads, docks, lighthouses, mining, iron, and copper factories, and to the establishment of telegraphic and postal systems. They also codified the laws, abolished the use of torture in obtaining testimony, revoked the edict against Christianity, sanctioned the publication of newspapers, established by the decree of 1875 the "Genro-in (a kind of Senate) to enact laws for the Empire, and the Daishin-in to consolidate the judicial authority of the courts,"[5] and called an assembly of the prefects, which, however, held but one session in Tokio. While the current of thought among the official circles was thus flowing, there was also a stream, in the lower region of the social life, soon to swell into a mighty river. Social inequality, that barrier which prevents the flow of popular feeling, being already levelled, merchants, agriculturists, tradesmen, artisans and laborers were now set at liberty to assert their rights and to use their talents. They were no longer debarred from places of high honor. The great colleges and schools, both public and private, which were hitherto established and carried on exclusively for the benefit of the nobles and the Samurai, were now open to all. And in this democracy of letters, where there is no rank or honor but that of talent and industry, a sentiment was fast growing that the son of a Daimio is not necessarily wiser than the son of a peasant. Teachers of these institutions were not slow to infuse the spirit of independence and liberty into their pupils and to instruct the people in their natural and political rights. Mr. Fukuzawa, a schoolmaster, an author, and a lecturer, the man who exercised an immense influence in shaping the mind of young Japan, gave a deathblow to the old ideas of despotic government, and of the blind obedience of the people, when he declared that _government exists for the people and not the people for the government_, that the government officials are the servants of the people, and the people their employer. He also struck a heavy blow at the arrogance and extreme love of military glory of the Samurai class, with whom to die for the cause of his sovereign, whatever that cause might be, was the highest act of patriotism, by advocating that "Death is a democrat, and that the Samurai who died fighting for his country, and the servant who was slain while caught stealing from his master, were alike dead and useless." In a letter to one of his disciples, Mr. Fukuzawa said: "The liberty of which I have spoken is of such great importance that everything should be done to secure its blessings in the family and in the nation, without any respect to persons. When every individual, every family and every province shall obtain this liberty, then, and not till then, can we expect to witness the true independence of the nation; then the military, the farming, the mechanical, and mercantile classes will not live in hostility to each other; then peace will reign throughout the land, and all men will be respected according to their conduct and real character."[6] The extent of the influence exercised with pen and tongue by these teachers upon the nation showed that the reign of sword and brutal force was over and the day of peace and reason had dawned. The press has at last become a power. The increase during that period of publications, both original and translations, and of newspapers, both in their number and circulation, is marvellous. To give an illustration, the number of newspapers transmitted in the mails increased from 514,610 in the year 1873 to 2,629,648 in the year 1874--an increase of 411 per cent in one year--"a fact which speaks volumes for the progress of civilization."[7] These newspapers were soon to become the organs of political parties which were in the process of formation. The most prominent among these political societies was the _Ri-shi-sha_, which finally developed into the present Liberal party. At the head of this party was Count Itagaki, a man of noble character and of marked ability, who had rendered many useful services to the country in the time of the Restoration and had for some years been a member of the cabinet, but who in 1875 resigned his office and became "the man of the people." He and his party contributed greatly to the development of constitutional ideas. Whatever may be said as to the extreme radicalism and childish freaks of the rude elements of this party, the presence of its sober members, who sincerely longed to see the adoption of a constitutional form of government and used only proper and peaceful means for the furtherance of their aim, and boldly and frankly told what they deemed the defects of the government; the presence of such a party in the country, whose masses knew nothing but slavish obedience to every act of the government, was certainly a source of great benefit to the nation at large. In 1873, Count Itagaki with his friends had sent in a memorial to the government praying for the establishment of a representative assembly, but they had not been heeded by the government. In July, 1877, Count Itagaki with his Ri-shi-sha again addressed a memorial to the Emperor, "praying for a change in the form of government, and setting forth the reasons which, in the opinion of the members of the society, rendered such a change necessary." These reasons were nine in number and were developed at great length. Eight of them formed a direct impeachment of the present government, and the ninth was a reminder that the solemn promise of 1868 had never been fulfilled. "Nothing," they conclude, "could more tend to the well-being of the country than for your Majesty to put an end to all despotic and oppressive measures, and to consult public opinion in the conduct of the government. To this end a representative assembly should be established, so that the government may become constitutional in form. The people would then become more interested and zealous in looking after the affairs of the country; public opinion would find expression, and despotism and confusion cease. The nation would advance in civilization; wealth would accumulate in the country; troubles from within and contempt from without would cease, and the happiness of your Imperial Majesty and of your Majesty's subjects would be secured." But again the government heeded not, its attention at the time being fully occupied with the suppression of the Satsuma Rebellion. The civil war being ended, in 1878, the year which marked a decade from the establishment of the new regime, the government, persuaded that the time for popular institutions was fast approaching, not alone through representations of the Tosa memorialists, but through many other signs of the times, decided to take a step in the direction of establishing a national assembly. But the government acted cautiously. Thinking that to bring together hundreds of members unaccustomed to parliamentary debate and its excitement, and to allow them a hand in the administration of affairs of the state, might be attended with serious dangers, as a preparation for the national assembly the government established first local assemblies. Certainly this was a wise course. These local assemblies have not only been good training schools for popular government, but also proved reasonably successful. They hold their sessions every year, in the month of March, in their respective electoral districts, and there discuss all questions of local taxation. They may also petition the central government on other matters of local interest. The members must be males of the full age of twenty-five years, who have been resident for three years in the district and pay the sum of $10 as a land tax within their district. The qualifications for electors (males only) are: an age of twenty years, registration, and payment of a land tax of $5. Voting is by ballot, but the names of the voters are to be written by themselves on the voting papers. There are now 2172 members who sit in these local assemblies, and it was from the more experienced members of these assemblies that the majority of the members of the House of Representatives of the Imperial Diet, convened for the first time last year, were chosen. The gulf between absolute government and popular government was thus widened more and more by the institution of local government. The popular tide raised by these local assemblies was swelling in volume year by year. New waves were set in motion by the younger generation of thinkers. Toward the close of the year 1881 the flood rose so high that the government thought it wise not to resist longer. His Imperial Majesty hearing the petitions of the people, graciously confirmed and expanded his promise of 1868 by the famous proclamation of October 12, 1881: "We have long had it in view to gradually establish a constitutional form of government.... It was with this object in view that in the eighth year of Meiji (1875) we established the Senate, and in the eleventh year of Meiji (1878) authorized the formation of local assemblies.... We therefore hereby declare that we shall, in the twenty-third year of Meiji (1890) establish a parliament, in order to carry into full effect the determination we have announced; and we charge our faithful subjects bearing our commissions to make, in the meantime, all necessary preparations to that end." [Footnote 1: C. Lanman, The Japanese in America, p. 38.] [Footnote 2: Mossman's New Japan, p. 442.] [Footnote 3: C. Lanman, The Japanese in America, p. 14.] [Footnote 4: The translation of the whole memorial is given in C. Lanman's Leading Men of Japan, p. 87.] [Footnote 5: The Imperial decree of 1875.] [Footnote 6: The translation given in C. Lanman, Leading Men of Japan. p. 47.] [Footnote 7: See the Appendix of Griffis' The Mikado's Empire.] 
3291	----	John Marshall and the Constitution by Edward S. Corwin, an eBook 
14104	----	OUR CHANGING CONSTITUTION BY CHARLES W. PIERSON [Illustration: decorative anchor] GARDEN CITY NEW YORK DOUBLEDAY, PAGE & COMPANY 1922 COPYRIGHT, 1922, BY DOUBLEDAY, PAGE & COMPANY ALL RIGHTS RESERVED, INCLUDING THAT OF TRANSLATION INTO FOREIGN LANGUAGES, INCLUDING THE SCANDINAVIAN PRINTED IN THE UNITED STATES AT THE COUNTRY LIFE PRESS, GARDEN CITY, N.Y. PREFACE Citizens of the United States are wont to think of their form of government, a political system based on a written constitution, as something fixed and stable. In reality, it is undergoing a profound change. The idea which constituted its most distinctive feature, and in the belief of many represents America's most valuable contribution to the science of government, is being forgotten. Formed to be "an indestructible Union composed of indestructible states," our dual system is losing its duality. The states are fading out of the picture. The aim of this volume is to point out the change and discuss some of its aspects. A few chapters have already appeared in print. "Our Changing Constitution" and "Is the Federal Corporation Tax Constitutional?" were published in the _Outlook_. "The Corporation Tax Decision" appeared in the _Yale Law Journal_. "Can Congress Tax the Income from State and Municipal Bonds?" was printed in the New York _Evening Post_. All of these have been more or less revised and some new matter has been added. CONTENTS I. THE SALIENT FEATURE OF THE CONSTITUTION 1 The American Constitution, its origin and contents. Wherein its novelty and greatness lay. Importance of maintaining the equilibrium established between national and state power. View of John Fiske. II. THE SUPREME COURT OF THE UNITED STATES 3 Place of the Court in the constitutional scheme. Its most important function. Personnel of the Court. Its power moral rather than physical. Its chief weapon the power to declare legislative acts unconstitutional. Limitations on this power--political questions; necessity of an actual controversy; abuses of legislative power. Erroneous popular impressions. Impairment of the constitutional conscience. III. OUR CHANGING CONSTITUTION 18 Change in popular attitude toward the Constitution. Causes of the change (growth of national consciousness, wars, foreign relations, influence of later immigrants and their descendants, desire to obtain federal appropriations, economic development, railroads, free trade among the states). Methods by which change has been put into effect (constitutional amendment, treaties, federal legislation under cover of power to regulate commerce and lay taxes). Attitude of the Supreme Court. Differences of opinion in the Court. IV. THE EIGHTEENTH OR PROHIBITION AMENDMENT 35 History and radical character of amendment. Efforts to defeat it in the courts. Unusual course taken by Supreme Court. Discussion of its true place in the development of American constitutional law. Less a point of departure than a spectacular manifestation of a change already under way. Effect of the change on the principle of local self-government. V. THE NINETEENTH OR WOMAN SUFFRAGE AMENDMENT 49 Attitude of the Constitution toward question of suffrage qualifications. Effect of Civil War amendments. Growth of woman suffrage movement and adoption of Suffrage Amendment. How far the amendment constitutes a federal encroachment on state power. Effect of woman suffrage on questions of governmental theory. VI. CONGRESS VERSUS THE SUPREME COURT--THE CHILD LABOR LAWS 59 The child labor question. Philanthropic and commercial aspects. Attempt of Congress to legislate under power to regulate commerce. Decision of Supreme Court holding law unconstitutional. The decision explained. Reënactment of law by Congress under cover of power to lay taxes. Arguments for and against constitutionality of new enactment. VII. STATE RIGHTS AND THE SUPREME COURT 69 The Supreme Court at first a bulwark of national power; to-day the defender of the states. Explanation of this apparent change. Attitude of the Court in the first period. The period of Chief Justice Marshall. The period of Chief Justice Taney. The Reconstruction Period. Attitude of the Court to-day. Reasons why the Court is unable to prevent federal encroachment. Attitude of Hamilton and Marshall toward state rights misunderstood. VIII. THE FEDERAL TAXING POWER AND THE INCOME TAX AMENDMENT 85 America's embarrassing position if the late war had come before adoption of Income Tax Amendment. Limitations of federal taxing power under the Constitution. Meaning of "uniformity." Apportionment of "direct taxes." The Supreme Court decision in the Income Tax cases in 1894 a reversal of long settled ideas. The Income Tax Amendment an example of recall of judicial decisions. Implied limitations on federal taxing power (compensation of federal judges, due process clause of the Constitution, no power to tax property or governmental activities of the states). IX. CAN CONGRESS TAX THE INCOME FROM STATE AND MUNICIPAL BONDS? 97 No express prohibition of such taxation; it lies in an implied limitation inherent in our dual system of government. Discussion of doctrine and its development by the Supreme Court. Effect of the Income Tax Amendment. Present dissatisfaction with doctrine and efforts to abolish it. X. IS THE FEDERAL CORPORATION TAX CONSTITUTIONAL? 106 Nature of the tax. An interference with state power to grant corporate franchises. Nature of our dual government and Supreme Court decisions on the subject discussed. The debate in Congress. XI. THE CORPORATION TAX DECISION 122 Importance of the decision likely to be overlooked. Criticism of the Court's arguments. Effects of the decision. XII. THE FEDERAL GOVERNMENT AND THE TRUSTS 129 Origin and history of Sherman Act. Its meaning now clear. Earlier uncertainties owing chiefly to two questions--What is interstate trade and Does the act enlarge the common-law rule as to what restraints were unlawful? How these questions have been settled. Statement of the common-law rule. Incompatibility between the law and present economic conditions. Suggestions for legal reform. The holding company device, its abuses and the possibility of abolishing it. Advantages of the scheme of federal incorporation. XIII. WHAT OF THE FUTURE? 143 Rapid progress and present extent of federal encroachment on state power. Growth of federal bureaucracy. A reaction against centralization inevitable sooner or later. Adequacy of Constitution to deal with changing conditions. The railroads and the trusts. Dangerous assaults upon Constitution in field of social welfare legislation. Exercise of police power a matter for local authority. Elihu Root's view. Outlook for the future. APPENDIX 153 OUR CHANGING CONSTITUTION I THE SALIENT FEATURE OF THE CONSTITUTION Few documents known to history have received as much praise as the United States Constitution. Gladstone called it "the most wonderful work ever struck off at a given time by the brain and purpose of man." The casual reader of the Constitution will be at a loss to account for such adulation. It will seem to him a businesslike document, outlining a scheme of government in terse and well-chosen phrases, but he is apt to look in vain for any earmarks of special inspiration. To understand the true greatness of the instrument something more is required than a mere reading of its provisions. The Constitution was the work of a convention of delegates from the states, who met in Philadelphia in May, 1787, and labored together for nearly four months. They included a large part of the best character and intellect of the country. George Washington presided over their deliberations. The delegates had not been called together for the purpose of organizing a new government. Their instructions were limited to revising and proposing improvements in the Articles of the existing Confederation, whose inefficiency and weakness, now that the cohesive power of common danger in the war of the Revolution was gone, had become a byword. This task, however, was decided to be hopeless, and with great boldness the convention proceeded to disregard instructions and prepare a wholly new Constitution constructed on a plan radically different from that of the Articles of Confederation. The contents of the Constitution, as finally drafted and submitted for ratification, may be described in few words. It created a legislative department consisting of a Senate and a House of Representatives, an executive department headed by a President, and a judicial department headed by a Supreme Court, and prescribed in general terms the qualifications, powers, and functions of each. It provided for the admission of new states into the Union and that the United States should guarantee to every state a republican form of government. It declared that the Constitution and the laws of the United States made in pursuance thereof, and treaties, should be the supreme law of the land. It provided a method for its own amendment. Save for a few other brief clauses, that was all. There was no proclamation of Democracy; no trumpet blast about the rights of man such as had sounded in the Declaration of Independence. On the contrary, the instrument expressly recognized human slavery, though in discreet and euphemistic phrases. Wherein, then, did the novelty and greatness of the Constitution lie? Its novelty lay in the duality of the form of government which it created--a nation dealing directly with its citizens and yet composed of sovereign states--and in its system of checks and balances. The world had seen confederations of states. It was familiar with nations subdivided into provinces or other administrative units. It had known experiments in pure democracy. The constitutional scheme was none of these. It was something new, and its novel features were relied upon as a protection from the evils which had developed under the other plans. The greatness of the Constitution lay in its nice adjustment of the powers of government, notably the division of powers which it effected between the National Government and the states. The powers conferred on the National Government were clearly set forth. All were of a strictly national character. They covered the field of foreign relations, interstate and foreign commerce, fiscal and monetary system, post office and post roads, patents and copyrights, and jurisdiction over certain specified crimes. All other powers were reserved to the states or the people. In other words, the theory was (to quote Bryce's "The American Commonwealth") "local government for local affairs; general government for general affairs only." The Constitution as it left the hands of its framers was not entirely satisfactory to anybody. Owing to the discordant interests and mutual jealousies of the states, it was of necessity an instrument of many compromises. One of the great compromises was that by which the small states were given as many senators as the large. Another is embalmed in the provisions recognizing slavery and permitting slaves to count in the apportionment of representatives. (The number of a state's representatives was to be determined "by adding to the whole number of free persons ... three-fifths of all other persons.") Another was the provision that direct taxes should be apportioned among the states according to population. With all its compromises, however, the Constitution embodied a great governmental principle, full of hope for the future of the country, and the state conventions to which it was submitted for ratification were wise enough to accept what was offered. Ratification by certain of the states was facilitated by the publication of that remarkable series of papers afterward known as the "Federalist." These were the work of Alexander Hamilton, James Madison, and John Jay, and first appeared in New York newspapers. One of the objections to the new Constitution in the minds of many people was the absence of a "bill of rights" containing those provisions for the protection of individual liberty and property (e.g., trial by jury, freedom of speech, protection from unreasonable searches and seizures) which had come down from the early charters of English liberties. In deference to this sentiment a series of ten brief amendments were proposed and speedily ratified. Another amendment (No. XI) was soon afterward adopted for the purpose of doing away with the effect of a Supreme Court decision. Thereafter, save for a change in the manner of electing the President and Vice-president, the Constitution was not again amended until after the close of the Civil War, when Amendments XIII, XIV, and XV, having for their primary object the protection of the newly enfranchised Negroes, were adopted. The Constitution was not again amended until the last decade, when the Income Tax Amendment, the amendment providing for the election of Senators by popular vote, the Prohibition Amendment, and the Woman Suffrage Amendment were adopted in rapid succession. Some of these will be discussed in later chapters. It is interesting to note that two of the amendments (No. XI, designed to prevent suits against a state without its permission by citizens of another state, and No. XVI, paving the way for the Income Tax) were called forth by unpopular decisions of the Supreme Court, and virtually amounted to a recall of those decisions by the people. These instances demonstrate the possibility of a recall of judicial decisions by constitutional methods, and tend to refute impatient reformers who preach the necessity of a more summary procedure. Such questions, however, lie outside the scope of this book. We emphasize here the fact that the great achievement of the Constitution was the creation of a dual system of government and the apportionment of its powers. That was what made it "one of the longest reaches of constructive statesmanship ever known in the world."[1] It offered the most promising solution yet devised for the problem of building a nation without tearing down local self-government. [Footnote 1: Fiske: "The Critical Period of American History," p. 301.] John Fiske, the historian, writing of the importance of preserving the constitutional equilibrium between nation and states, said:[1] If the day should ever arrive (which God forbid!) when the people of the different parts of our country shall allow their local affairs to be administered by prefects sent from Washington, and when the self-government of the states shall have been so far lost as that of the departments of France, or even so far as that of the counties of England--on that day the progressive political career of the American people will have come to an end, and the hopes that have been built upon it for the future happiness and prosperity of mankind will be wrecked forever. [Footnote 1: Id., p. 238.] If allowance be made for certain extravagances of statement, these words will serve as a fitting introduction to the discussions which follow. II THE SUPREME COURT OF THE UNITED STATES The Constitution effected an apportionment of the powers of government between nation and states. The maintenance of the equilibrium thus established was especially committed to the Supreme Court. This novel office, the most important of all its great functions, makes the Court one of the most vital factors of the entire governmental scheme and gives it a unique preëminence among the judicial tribunals of the world. How the office has been performed, and whether the constitutional equilibrium is actually being maintained, are the questions to be considered in this book. Before taking them up, however, it will be useful to glance briefly at the Court itself and inquire how it is equipped for its difficult task. The United States Supreme Court at present is composed of nine judges. The number originally was six. It now holds its sessions at the Capitol in Washington, in the old Senate Chamber which once echoed with the eloquence of the Webster-Hayne debate. The judges are nominated by the President, and their appointment, like that of ambassadors, must be confirmed by the Senate. The makers of the Constitution took the utmost care to insure the independence of the Court. Its members hold office during good behavior, that is to say for life. They cannot be removed except by impeachment for misconduct. Only one attempt has ever been made to impeach a judge of the Supreme Court[1] and that attempt failed. Still further to insure their freedom from legislative control, the Constitution provides that the compensation of the judges shall not be diminished during their continuance in office.[2] [Footnote 1: Justice Samuel Chase of Maryland in 1804-5.] [Footnote 2: It is interesting to observe that this Court, safeguarded against popular clamor and composed of judges appointed for life, has consistently shown itself more progressive and more responsive to modern ideas than have most of the state Supreme Courts whose members are elected directly by the people and for limited terms only.] From the time of John Jay, the first Chief Justice, down to the present day the men appointed to membership in the Court have, for the most part, been lawyers of the highest character and standing, many of whom had already won distinction in other branches of the public service. The present Chief Justice (Taft) is an ex-President of the United States. Among the other members of the Court are a former Secretary of State of the United States (Justice Day); two former Attorneys General of the United States (Justices McKenna and McReynolds); a former Chief Justice of Massachusetts (Justice Oliver Wendell Holmes, the distinguished son and namesake of an illustrious father); a former Chief Justice of Wyoming (Justice Van Devanter); and a former Chancellor of New Jersey (Justice Pitney). It is well that the personnel of the Court has been such as to command respect and deference, for in actual power the judiciary is by far the weakest of the three coördinate departments (legislative, executive, judicial) among which the functions of government were distributed by the Constitution. The power of the purse is vested in Congress: it alone can levy taxes and make appropriations. The Executive is Commander-in-Chief of the Army and Navy and wields the appointing power. The Supreme Court controls neither purse nor sword nor appointments to office. Its power is moral rather than physical. It has no adequate means of enforcing its decrees without the coöperation of other branches of the Government. That coöperation has not always been forthcoming. In the year 1802, Congress, at the instigation of President Jefferson, the inveterate enemy of Chief Justice Marshall, suspended the sessions of the Court for more than a year by abolishing the August term. In 1832, when the State of Georgia defied the decree of the Court in a case involving the status of the Cherokee Indians, the other departments of the Federal Government gave no aid and President Andrew Jackson is reported to have remarked: "John Marshall has made the decision, now let him execute it." In 1868, Congress, in order to forestall decision in a case pending before the Court, hastily repealed the statute on which the jurisdiction of the Court depended.[1] Such instances, however, have been rare. The law-abiding instinct is strong in the American people, and for the most part the decisions of the Supreme Court have been received with respect and unquestioning obedience. [Footnote 1: See _ex parte McCardle_, 6 Wall. (Supreme Court Reports), 318; 7 _id._, 506.] The chief weapon in the arsenal of the Court is the power to declare legislative acts void on the ground that they overstep limits established by the people in the Constitution. This power has been frequently exercised. It is stated that the congressional statutes thus nullified have not numbered more than thirty, while at least a thousand state laws have been nullified.[1] [Footnote 1: Brief of Solicitor General James M. Beck in the Child Labor Tax cases. It is to be borne in mind that there are forty-eight state legislatures and only one Congress.] The assumption of this power in the Court to declare statutes unconstitutional has been bitterly assailed, and is still denounced in some quarters, as judicial usurpation originated by John Marshall. On the historical side this objection is not well founded. Various state courts had exercised the power to declare statutes unconstitutional before the Supreme Court came into existence.[1] The framers of the Constitution clearly intended that such a power should be exercised by the Supreme Court.[2] Moreover, a somewhat similar power appears to have been exercised long before in England,[3] though it gave place later to the present doctrine of the legal omnipotence of Parliament. [Footnote 1: See Bryce: "The American Commonwealth," Vol. I, p. 250.] [Footnote 2: See e.g., "Federalist," No. LXXVIII.] [Footnote 3: See opinion of Lord Coke in Bonham's Case, 8 Coke's Reports, 118, decided in 1610.] On the side of reason and logic, the argument in favor of the power formulated more than a century ago by Chief Justice Marshall has never been adequately answered and is generally accepted as final. He said:[1] The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?... The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. [Footnote 1: _Marbury v. Madison_, 1 Cranch, 176.] It would seem at first blush that the power in the Court to declare legislative acts unconstitutional affords a complete safeguard against congressional encroachment on the prerogatives of the states. Such is not the fact, however. The veto power of the Court by no means covers the entire field of legislative activity. In the Convention which framed the Constitution, attempts were made to give to the judiciary, in conjunction with the executive, complete power of revision over legislative acts, but all such propositions were voted down.[1] As matters stand, there may be violations of the Constitution by Congress (or for that matter by the executive) of which the Court can take no cognizance. [Footnote 1: See e.g., Farrand: "Records of the Federal Convention," Vol. I, pp. 138 et seq.; Vol. II, p. 298.] For one thing, the Court cannot deal with questions of a political character. The function of the Court is judicial only. Upon this ground it was decided that the question which of two rival governments in the State of Rhode Island was the legitimate one was for the determination of the political department of government rather than the courts;[1] that the question, whether the adoption by a state of the initiative and referendum violated the provision of the Federal Constitution guaranteeing to every state a republican form of government, was political and therefore beyond the jurisdiction of the Court.[2] In 1867 a sovereign state sought to enjoin the President of the United States from enforcing an act of Congress alleged to be unconstitutional. The Supreme Court, without determining the constitutionality of the act, declined to interfere with the exercise of the President's political discretion.[3] In the famous Dred Scott case[4] the effort of the Supreme Court to settle a political question accomplished nothing save to impair the influence and prestige of the Court. [Footnote 1: _Luther v. Borden_, 7 Howard, 1.] [Footnote 2: _Pacific Telephone Co. v. Oregon_, 223 U.S., 118.] [Footnote 3: _State of Mississippi v. Andrew Johnson_, 4 Wall., 475.] [Footnote 4: _Dred Scott v. Sandford_, 19 Howard, 393.] The power of the Court to declare legislative acts unconstitutional is subject to another important limitation. The judicial power is limited by the Constitution to actual cases and controversies between opposing parties. The Court cannot decide moot questions or act as an adviser for other departments of the government. A striking illustration is found in the so-called Muskrat case.[1] Congress having legislated concerning the distribution of property of the Cherokee Indians, and doubts having arisen as to the constitutional validity of the legislation, Congress passed another act empowering one David Muskrat and other Cherokee citizens to file suit, naming the United States as defendant, to settle the question. The Supreme Court declined to take jurisdiction and dismissed the suit, holding that it was not a case or controversy between opposing parties within the meaning of the Constitution. [Footnote 1: _Muskrat v. United States_, 219 U.S., 346.] Still another limitation is encountered in cases involving abuse of legislative power rather than lack of power. If Congress passes an act within one of the powers expressly conferred upon it by the Constitution, for example the power to lay taxes or the power to regulate interstate commerce, the Supreme Court cannot interfere though the incidental effect and ulterior purpose of the legislation may be to intrude upon the field of state power. We shall have occasion to refer to this limitation more than once in later chapters. An impression is abroad that the Supreme Court has plenary power to preserve the Constitution. Hence the tendency of groups to demand, and of legislators to enact, any kind of a law without regard to its constitutional aspect, leaving that to be taken care of by the Court. Any such impression is erroneous and unfortunate. It puts upon the Court a burden beyond its real powers. It undermines the sense of responsibility which should exist among the elected representatives of the people. It impairs what someone has called the constitutional conscience, and weakens the vigilance of the people in preserving their liberties. Men and women need to be reminded that the duty of upholding the Constitution does not devolve upon the Supreme Court alone. It rests upon all departments of government and, in the last analysis, upon the people themselves. III OUR CHANGING CONSTITUTION In a celebrated case[1] decided a few years ago the Supreme Court of the United States said: The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. Being a grant of powers to a government its language is general, and as changes come in social and political life it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them, and those things not within them remain still excluded.... To determine the extent of the grants of power we must, therefore, place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of those grants. [Footnote 1: _South Carolina v. United States_, 199 U.S., 437.] Thus speaks the voice whose word is law. Viewed in the sense intended--as the formulation of a legal rule for the interpretation and construction of a written instrument--the statement compels assent. As a statement of historical and political fact, however, it would not be accepted so readily. An acute critic of our institutions has said that the Constitution "has changed in the spirit with which men regard it, and therefore in its own spirit."[1] Men realize that the words of the Constitution, like the words of Holy Writ, have not always meant the same thing to those who regulate their conduct by its precepts; that the system of government which those words embody has in reality changed, is changing to-day. [Footnote 1: Bryce: "The American Commonwealth," Vol. I, p. 400.] The makers of the Constitution represented the people of distinct and independent states, jealous of their rights and of each other but nevertheless impelled by experience of danger lately past and sense of other perils impending to substitute for their loose and ill-working confederation a more effective union. The most formidable obstacle, apart from mutual jealousies, was a fear of loss of liberties, state and individual, through encroachment of the central power. The instrument, drawn with this fear uppermost, was designed to limit the National Government to "the irreducible minimum of functions absolutely needed for the national welfare."[1] To this end the powers granted were specifically enumerated. All other powers were by express enactment[2] "reserved to the States respectively, or to the people." [Footnote 1: Bryce, "The American Commonwealth," Vol. I, p. 324.] [Footnote 2: Tenth Amendment.] The strength of the popular sentiment against any encroachment of federal power was speedily demonstrated in a striking and dramatic way. Under the grant of power to determine controversies "between a state and citizens of another state"[1] the Supreme Court in 1793 proceeded to entertain a suit by one Chisholm, a citizen of South Carolina, against the State of Georgia.[2] It had not been supposed that the grant of power contemplated such a suit against a state without its consent. The decision aroused an indescribable state of popular fury, not only in Georgia but throughout the Union, and led to the adoption of a constitutional amendment[3] prohibiting such suits in future. [Footnote 1: Art. III, Sec. 2.] [Footnote 2: See 2 Dallas, 419.] [Footnote 3: Eleventh Amendment.] There is a long step between such an attitude toward the Constitution and the viewpoint which finds in it authority for the enactment by Congress of White Slave and Child Labor laws. Obviously there has been a profound change in what the Constitution means to its adherents. It will be interesting to consider briefly what has caused the change of view, and how it has been put into effect. To one searching for causes the most striking phenomenon is the growth of a national consciousness. At the outset it was practically non-existent. To-day its power has astonished enemy and friend alike. Its growth has been due to both pressure from without and developments within. Our foreign wars, especially the war with Germany, have drawn the people together and enhanced the importance of interests purely national. Some of our other foreign relations have brought into relief the advantages of a strong central government as well as certain inconveniences of our system as it left the hands of the framers. Witness the embarrassment toward Italy growing out of lack of federal jurisdiction in respect of the New Orleans riots, and the ever-present danger to our relations with Japan from acts of the sovereign State of California which the Federal Government is powerless to control. Among developments from within was the Civil War, with its triumph for the idea of national supremacy and an indissoluble union. Another, which has hardly received the attention it deserves, has been the influence of the large element of our population composed of immigrants since the Revolution and their descendants. The state sovereignty doctrine was not a mere political dogma but had its roots in history. It was an expression of the pride of the inhabitants of the Thirteen Colonies in their respective commonwealths. To them it stood for patriotism and traditions. These feelings the later immigrant neither shared nor understood. When he gave up his Old World allegiance and emigrated he came to America, not to New York or Massachusetts. To him the nation was everything, the state merely an administrative subdivision of the nation. Another cause has been the desire to obtain aid in local matters from the national treasury. This has proved an exceedingly potent and insidious influence, leading state officials to surrender voluntarily state prerogatives in exchange for appropriations of federal money. Notable examples of this influence may be found in the field of river and harbor improvements, the creation of various new bureaus in the Department of Commerce, the enormous extension of the activities of the Agricultural Department and the Bureau of Education. The temptation in this direction is particularly strong among the less prosperous states, for it means the expenditure in those states of federal moneys raised chiefly from the taxpayers in wealthier states. The most potent influence of all, however, has been the matter of internal economic development, stimulated by free trade among the states. This development has gone on apace with little regard for state lines. The invention of railways drew the different sections of the country together in a common growth, and tended to make the barriers interposed by state lines and state laws seem artificial and cumbersome. In fact, they sometimes came to be regarded as intolerable and destructive of progress. The spectacle of men clamoring for federal control of their industries to escape the burdens of a diversified state interference has been a frequent phenomenon of recent years.[1] [Footnote 1: See e.g. the efforts of the life insurance interests: _N.Y. Life Ins. Co. v. Deer Lodge County_, 231 U.S., 495.] The foregoing enumeration by no means covers all the forces which have been at work. In recent years a strong tendency toward centralization and combination has developed, a tendency pervading all the interests and activities of men. Moreover, new views have arisen concerning the functions and scope of government, views challenging the _laissez faire_ doctrines of earlier days and demanding a greater measure of governmental interference with the affairs of the individual. These tendencies, however, are not peculiar to America and lie outside the scope of the present discussion. In considering the methods by which the change of spirit toward the Constitution has been put into effect, one is struck by the comparatively small part played by the only method contemplated by the framers, viz., constitutional amendment. This method is entirely practicable and fairly expeditious provided a sufficient number favor the change proposed. In the one hundred years prior to the recent Income Tax Amendment, however, only three amendments were enacted (Numbers XIII, XIV, and XV), all of them dealing primarily with the abolition of slavery and the civil rights of the Negro. The only one which need be noticed here is Number XIV, which substituted a federal test of citizenship for state tests and provided that no state should "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." There was nothing new in these prohibitions. In substance they are as old as Magna Charta and were already embodied in most if not all of the state constitutions. The novelty lay in bringing the question, whether a state had in fact denied due process of law to an individual or corporation, within the jurisdiction of the federal courts. From a legal viewpoint this was a change of great importance. To the general student of constitutional government, however, it is less significant than others presently to be mentioned. Right here it may be proper to notice a new theory of construction of the Constitution, not yet accepted but strenuously urged and containing enormous potentialities. This is the "doctrine of sovereign and inherent power," i.e., the doctrine that powers of national scope for whose exercise no express warrant is found in the Constitution are nevertheless to be implied as inherent in the very fact of sovereignty. This is a very different thing from the famous doctrine of implied powers developed by Chief Justice Marshall--that all powers will be implied which are suitable for carrying into effect any power expressly granted. It is a favorite theory of what may be termed the Roosevelt school. They consider that it is rendered necessary by the discovery of fields suitable for legislative cultivation, lying outside the domain of state power but not within the scope of any express grant of power to the nation. As practical men they abhor the existence of such a constitutional no man's land as nature abhors a vacuum. During the presidency of Mr. Roosevelt a determined effort was made by the representatives of the Administration[1] to secure the recognition by the Supreme Court of the doctrine of sovereign and inherent power. It was claimed in the brief filed by the Attorney General and Solicitor General that the doctrine had already been applied by the Court in the Legal Tender cases.[2] The effort failed, however, the Court declaring that any such power, if necessary to the nation, must be conferred through constitutional amendment by the people, to whom all powers not granted had been expressly reserved by the Tenth Amendment. [Footnote 1: In _Kansas v. Colorado_, 206 U.S., 46.] [Footnote 2: Bryce makes a statement to the same effect. "The American Commonwealth," Vol. I, p. 383.] A method by which the federal power and jurisdiction have been much extended has been the occupation by Congress, through legislation of an exclusive character, of fields where the states had exercised a concurrent jurisdiction. A familiar example is found in federal bankruptcy laws. Another and striking example is the so-called "Carmack Amendment" of the federal Interstate Commerce law. The question of liability for loss or damage to goods in the hands of railways and other carriers had been a fruitful field for state legislatures and state courts. The Carmack Amendment brushed away at a single stroke whole systems of state statutes and judicial decisions (in so far as they affected traffic across state lines) and substituted a uniform system under the control of the federal courts. The federal power has also been extended at the expense of the states through the use of the treaty-making prerogative. The subjects upon which Congress may legislate are limited by specific enumeration. The treaty-making power, however, is not thus limited. Treaties may cover any subject. It follows that while the Federal Government has no power (for example) to regulate the descent of real property in the various states the treaty-making power permits it, by treaties with foreign nations, to destroy the alienage laws of the states.[1] Another very recent example is afforded by the Migratory Bird Treaty with Great Britain.[2] One will search the Constitution in vain for any grant of power to the Federal Government to enact game laws. Nevertheless, under this treaty, many state game laws have been practically annulled. [Footnote 1: _Hauenstein v. Lynham_, 100 U.S., 483.] [Footnote 2: Sustained by the Supreme Court in _Missouri v. Holland_, 252 U.S., 416.] But the most far-reaching method by which federal power under the Constitution has been extended has been the adaptation--some will say the perversion--by Congress of old grants of power to new ends. Under the spur of public sentiment Congress has discovered new legislative possibilities in familiar clauses of the Constitution as one discovers new beauties in a familiar landscape. The clause offering the greatest possibilities has been the so-called Commerce Clause, which grants to Congress power "to regulate commerce with foreign nations, and among the several states."[1] Under this grant of power Congress has enacted, and the courts have upheld, a great mass of social and economic legislation having to do only remotely with commerce. For example, the Sherman Act and other anti-trust legislation, ostensibly mere regulations of commerce, but actually designed for the control and suppression of trusts and monopolies; the federal Pure Food and Drugs Act, designed to prevent the adulteration or mis-branding of foods and drugs and check the abuses of the patent-medicine industry;[2] the act for the suppression of lotteries, making it a crime against the United States to carry or send lottery tickets or advertisements across state lines;[3] an act to prevent the importation of prize-fight films.[4] These are only a few among many similar statutes which might be mentioned. In all of them the motive is clear. There is no concealment about it. Their primary object is to suppress or regulate the trusts, lotteries, patent-medicine frauds. The regulation of commerce is merely a matter of words and legal form. [Footnote 1: Art. I, Sec. 8.] [Footnote 2: _Hipolite Egg Company v. United States_, 220 U.S., 45.] [Footnote 3: _Champion v. Ames_, 188 U.S., 321.] [Footnote 4: _Weber v. Freed_, 239 U.S., 325.] Especially noteworthy is the rapidly expanding body of social legislation--federal Employers' Liability Act, Hours of Service acts, Child Labor Law, White Slave Act and the like, all drawn with an eye to the commerce clause but designed to accomplish objects quite distinct from the regulation of commerce. As already said, the Commerce Clause has been found most available for purposes of such legislation. Other clauses have, however, served their turn. For example, the grant of power to lay taxes was utilized to destroy an extensive industry obnoxious to the dairy interests--the manufacture of oleomargarine artificially colored to look like butter.[1] Also to invade the police power of the States in respect of the regulation of the sale and use of narcotic drugs.[2] Also to check speculation and extortion in the sale of theatre tickets![3] The power to borrow money and create fiscal agencies was utilized to facilitate the making of loans upon farm security at low rates of interest through the incorporation of Federal land banks or Joint Stock land banks.[4] [Footnote 1: _McCray v. United States_, 195 U.S., 27.] [Footnote 2: Narcotic Drug Act. Held constitutional in _United States v. Doremus_, 249 U.S., 86; _Webb v. United States_, 249 U.S., 96.] [Footnote 3: Revenue Act of 1921, Title VIII, subdivisions 2 and 3.] [Footnote 4: _Smith v. Kansas City Title Co._, 255 U.S., 180.] It would be an insult to intelligence to claim that legislation such as this, wearing the form of revenue measure or regulation of commerce but in reality enacted with a different motive, does not involve an enormous extension of the national power beyond what the makers of the Constitution supposed they were conferring or intended to confer. What, then, of the declaration by the Supreme Court with which we began, that "to determine the extent of the grants of power we must place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of these grants." The answer must be that the Court itself has not always adhered strictly to this test. The Court has taken the position that when power exists under the Constitution to legislate upon a given subject--say interstate commerce or taxation--it is not for the judiciary to seek to correct abuses by Congress of that power, or to question Congressional motives. As said in the decision sustaining the constitutionality of the oleomargarine law:[1] The judiciary is without authority to avoid an act of Congress lawfully exerting the taxing power, even in a case where to the judicial mind it seems that Congress had, in putting such power in motion, abused its lawful authority by levying a tax which was unwise or oppressive, or the result of the enforcement of which might be to indirectly affect subjects not within the powers delegated to Congress, nor can the judiciary inquire into the motive or purpose of Congress in adopting a statute levying an excise tax within its constitutional power. [Footnote 1: _McCray v. United States_, 195 U.S., 27.] The Court, however, has had great difficulty with these cases and developed sharp differences of opinion. For example, the case upholding the anti-lottery statute as a valid exercise of the power to regulate commerce[1] was twice ordered for reargument and finally decided by a bare majority of 5 to 4. The Child Labor Law of 1916 was declared unconstitutional[2] and the Narcotic Drug Act was sustained[3] by a similar vote, 5 to 4. In the Narcotic Drug case the four dissenting justices, speaking through Chief Justice White, characterized portions of the statute as "beyond the constitutional power of Congress to enact ... a mere attempt by Congress to exert a power not delegated, that is, the reserved police power of the states." In the Lottery case the dissenting opinion of the four, written by Chief Justice Fuller, concludes: I regard this decision as inconsistent with the views of the framers of the Constitution, and of Marshall, its great expounder. Our form of government may remain notwithstanding legislation or decision, but, as long ago observed, it is with governments, as with religions, the form may survive the substance of the faith. [Footnote 1: _Champion v. Ames_, 188 U.S., 321.] [Footnote 2: _Hammer v. Dagenhart_, 247 U.S., 251.] [Footnote 3: _United States v. Doremus_, 249 U.S., 86.] Whatever view one may hold to-day as to the question of expediency, no thoughtful mind can escape the conclusion that, in a very real and practical sense, the Constitution has changed. In a way change is inevitable to adapt it to the conditions of the new age. There is danger, however, that in the process of change something may be lost; that present-day impatience to obtain desired results by the shortest and most effective method may lead to the sacrifice of a principle of vital importance. The men who framed the Constitution were well advised when they sought to preserve the integrity of the states as a barrier against the aggressions and tyranny of the majority acting through a centralized power. The words "state sovereignty" acquired an odious significance in the days of our civil struggle, but the idea for which they stand is nevertheless a precious one and represents what is probably America's most valuable contribution to the science of government. We shall do well not to forget the words of that staunch upholder of national power and authority, Salmon P. Chase, speaking as Chief Justice of the Supreme Court in a famous case growing out of the Civil War:[1] The preservation of the states, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible states. [Footnote 1: _Texas v. White_, 7 Wall., 700.] IV THE EIGHTEENTH AMENDMENT Could Washington, Madison, and the other framers of the Federal Constitution revisit the earth in this year of grace 1922, it is likely that nothing would bewilder them more than the recent Prohibition Amendment. Railways, steamships, the telegraph, the telephone, automobiles, flying machines, submarines--all these developments of science, unknown in their day, would fill them with amazement and admiration. They would marvel at the story of the rise and downfall of the German Empire; at the growth and present greatness of the Republic they themselves had founded. None of these things, however, would seem to them to involve any essential change in the beliefs and purposes of men as they had known them. The Prohibition Amendment, on the contrary, would evidence to their minds the breaking down of a principle of government which they had deemed axiomatic, the abandonment of a purpose which they had supposed immutable. As students of the science of government they would realize that the most fundamental change which can overtake a free people is a change in their frame of mind, for to that everything else must sooner or later conform. The amendment was proposed by Congress in 1917 and proclaimed as having been ratified in 1919.[1] [Footnote 1: 40 Stat. 1050, 1941.] The comparative ease and dispatch with which it was put through argue alike the skill and vigor of its sponsors and the strength of the sentiment behind them. Legal warfare over the amendment did not end, however, with its ratification by the legislatures of the requisite number of states. Passions had been aroused. Vast property interests were menaced. Moreover, in the minds of students of government the amendment stirred misgivings which were quite independent of the sentimental and material considerations involved. Eminent counsel were retained and a determined effort was made to defeat or nullify the amendment in the courts. To this end suits were begun in various jurisdictions to test its validity and enjoin the enforcement of the Volstead Act, which sought to carry it into effect. Two sovereign states (Rhode Island and New Jersey) joined in the attack and through their respective Attorneys General brought original suits in the United States Supreme Court to have the amendment declared invalid. Seven test cases were argued together in the Supreme Court, five days in all being devoted to the argument. It will be of interest to note some of the reasons advanced against the validity of the amendment, as they are summarized in the official report.[1] [Footnote 1: National Prohibition cases, 253 U.S., 350.] The Attorney General of the State of Rhode Island argued[1] that: The amendment is an invasion of the sovereignty of the complaining state and her people, not contemplated by the amending clause of the Constitution. The amending power ... is not a substantive power but a precautionary safeguard inserted incidentally to insure the ends set forth in that instrument against errors and oversights committed in its formation. Amendments, as the term indeed implies, are to be limited to the correction of such errors.... It is "This Constitution" that may be amended. "This Constitution" is not a code of transient laws but a framework of government and an embodiment of fundamental principles. By an amendment, the identity or purpose of the instrument is not to be changed; its defects may be cured, but "This Constitution" must remain. It would be the greatest absurdity to contend that there was a purpose to create a limited government and at the same time to confer upon that government a power to do away with its own limitations. [Footnote 1: Id., pp. 354-356.] The Attorney General of the State of New Jersey:[1] attacked the amendment as an invasion of state sovereignty not authorized by the amending clause and as not, properly speaking, an amendment, but legislation, revolutionary in character. [Footnote 1: 253 U.S., pp. 356-357.] The eminent Chicago lawyer, Levy Mayer, and ex-Solicitor General William Marshall Bullitt, contended,[1] among other things, that the power of "amendment" contained in Art. V does not authorize the invasion of the sovereign powers expressly reserved to the states and the people by the Ninth and Tenth Amendments, except with the consent of _all_ the states.... If amendment under Art. V were unlimited, three-fourths of the legislatures would have it in their power to establish a state religion and prohibit free exercise of other religious beliefs; to quarter a standing army in the houses of citizens; to do away with trial by jury and republican form of government; to repeal the provision for a president; and to abolish this court and with it the whole judicial power vested by the Constitution. [Footnote 1: Id., pp. 357-361.] Elihu Root, preëminent as a constitutional lawyer, appeared as counsel in one of the test cases. His main contention was summarized in his brief as follows:[1] (a) That the authority to amend the Constitution is a continuance of the constitution-making power and as such is a power quite different and altogether distinct from the law-making power under the Constitution. (b) That a grant of the one power does not include or imply a grant of the other. (c) That the natural and ordinary meaning of the words used in Article V of the Constitution [the article providing for amendment] limits the power granted to the function of constitution-making as distinguished from ordinary law-making. (d) That the purposes of the grant imply the same limitation. (e) That other parts of the Constitution--notably Article I--express the same limitation. (f) That the existence of authority under Article V to enact ordinary laws regulating the conduct of private citizens under color of amendment, would be so in conflict with the fundamental principles and spirit of the Constitution that such a construction is not permissible. [Footnote 1: For the Reporter's Summary see 253 U.S., pp. 361-367.] There were other arguments of a more technical character. Article V of the Constitution provides that the Congress shall propose amendments "whenever two-thirds of both Houses shall deem it necessary." It was urged that this required the affirmative vote of two-thirds of the entire membership of both Houses, and that two-thirds of a quorum was not sufficient. It was also urged that the proposal was fatally defective because it did not on its face declare that both Houses deemed the amendment necessary. It was also argued that the amendment had not been effectively ratified in certain of the states where it had been approved by the state legislature (notably Ohio) because under the constitutions of those states it was subject to a referendum to the people before becoming effective. The Supreme Court of Ohio had so decided[1] and a referendum had actually been held in that state, resulting in a rejection of the amendment by popular vote. Various arguments were also advanced based on the puzzling phraseology of Section 2 of the amendment that "the Congress and the several States shall have _concurrent power_ to enforce this article by appropriate legislation." The eminent constitutional lawyer, W.D. Guthrie, addressed himself particularly to this phase of the controversy.[2] It was urged with much force that the effect of these words was to save the rights of the states, in respect of intrastate matters, by requiring their concurrence in any legislation of Congress regulating such matters. [Footnote 1: See _Hawke v. Smith_, 253 U.S., 221.] [Footnote 2: 253 U.S., pp. 368-380.] All the arguments advanced were alike unavailing. The nine members of the Supreme Court were unanimous in sustaining the validity of the amendment, holding that it "by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument."[1] The Court, however, adopted the very unusual course of deciding the various cases before it (affirming four, reversing one, and dismissing the original bills filed by the states of Rhode Island and New Jersey) without any written opinion. Speaking through Mr. Justice Van Devanter, the Court merely announced its conclusions. This was an unprecedented procedure in a case involving constitutional questions of such importance. It drew criticism from some of the members of the Court itself. Chief Justice White said:[2] I profoundly regret that in a case of this magnitude, affecting as it does an amendment to the Constitution dealing with the powers and duties of the national and state governments, and intimately concerning the welfare of the whole people, the court has deemed it proper to state only ultimate conclusions without an exposition of the reasoning by which they have been reached. and proceeded to announce the reasons which had actuated him personally. Justice McKenna said:[3] The court declares conclusions only, without giving any reasons for them. The instance may be wise--establishing a precedent now, hereafter wisely to be imitated. It will undoubtedly decrease the literature of the court if it does not increase lucidity. [Footnote 1: Id., p. 386.] [Footnote 2: Id., p. 388.] [Footnote 3: 253 U.S., p. 393.] Perhaps a hint as to the reasons actuating the majority of the Court may be found in the brief concurring memorandum of Mr. Justice McReynolds. He said:[1] I do not dissent from the disposition of these causes as ordered by the Court, but confine my concurrence to that. It is impossible now to say with fair certainty what construction should be given to the Eighteenth Amendment. Because of the bewilderment which it creates, a multitude of questions will inevitably arise and demand solution here. In the circumstances, I prefer to remain free to consider these questions when they arrive. [Footnote 1: Id., p. 392.] Justices McKenna and Clarke dissented from portions of the decision dealing with the question of the proper construction of the grant of "concurrent power" to Congress and the States, and wrote opinions setting forth the grounds of their dissent. Both Justices, however, concurred in affirming the validity of the amendment. Thus the legal battle was fought and lost. The amendment had withstood attack and men's minds settled back to the practical question of its enforcement. Upon that question, however difficult and interesting, we do not here enter. Our present concern is to ascertain as nearly as may be the true place of the amendment in the development of American constitutional law. That it affords startling evidence of a radical departure from the views of the founders of the Republic is beyond question. Such a blow at the prerogatives of the states, such a step toward centralization, would have been thought impossible by the men of 1787. It would be a mistake, however, to view the departure as having originated with this amendment. Rather is the amendment to be regarded as merely a spectacular manifestation of a change which was already well under way. In the early days of the Republic the dominating purpose was the protection of state prerogatives, so far as that was compatible with the common safety. The first eleven amendments of the Federal Constitution were all limitations upon federal power. Not until the people of the various states had been drawn together and taught to think in terms of the nation by a great Civil War was there any amendment which enlarged the powers of the National Government. The three post-war amendments (Nos. XIII, XIV, and XV) marked a distinct expansion of federal power but one that seemed to find its justification, as it found its origin, in the necessity for effectuating the purposes of the war and protecting the newly enfranchised Negroes. A long period of seeming inactivity, more than forty years, elapsed before another constitutional amendment was adopted.[1] The inaction, however, was apparent rather than real. As matter of fact, a change was all the time going on. In a very real sense the Constitution was being altered almost from year to year. That the alterations did not take the shape of formal written amendments was largely due to the tradition of constitutional immobility. The idea had grown up that the machinery of amendment provided by the Fathers was so slow and cumbersome that it was impossible as a practical matter to secure a change by that method except under stress of war or great popular excitement. That idea is now exploded. We of to-day know better, having seen the Income Tax Amendment (No. XVI), the Election of Senators by Popular Vote Amendment (No. XVII), the Prohibition Amendment (No. XVIII), and the Woman Suffrage Amendment (No. XIX) go through within a period of seven years. For generations, however, the tradition of constitutional immobility held sway and the forces of change worked through channels that seemed easier and less obstructed. [Footnote 1: No. XVI, the Income Tax Amendment, ratified in 1913.] The principal channel has been congressional legislation. Congress has found ways of reaching by indirection objects which could not be approached directly. Under the express grants of power contained in the Constitution statutes have been enacted which were really designed to accomplish some ulterior object. A striking example is found in the child labor laws, discussed more at length in a subsequent chapter. Congress at first sought to regulate child labor by a statute enacted ostensibly as a regulation of commerce under the Commerce Clause of the Constitution. The Supreme Court held the Act unconstitutional as exceeding the commerce power of Congress and invading the powers reserved to the states.[1] Thereupon Congress practically reënacted it, coupled with a provision for a prohibitive tax on the profits of concerns employing child labor, as part of a revenue act enacted under the constitutional grant of power to lay taxes.[2] [Footnote 1: _Hammer v. Dagenhart_, 247 U.S., 251.] [Footnote 2: Revenue Act of 1918, Title XII.] The assumption by the National Government of jurisdiction over the manufacture and sale of intoxicating liquors is no more of an encroachment on the prerogatives of the states than is its assumption of jurisdiction over child labor and the use of narcotic drugs. We come back, therefore, to the proposition that the Prohibition Amendment is to be regarded less as a departure in American fundamental law than as a spectacular manifestation of a change already well under way. The change, however much students of our institutions may deplore it, is not difficult to explain. The earlier solicitude for state rights was in a sense accidental. It was based on sentiment and mutual jealousies among the colonies rather than on any fundamental differences in race, beliefs, or material interests. The traditions behind it, while strong, were of comparatively recent growth. When they entered the Union the colonies were still new and undeveloped. As men died and their sons succeeded them prejudices gradually yielded and sentiment changed. Moreover, various other forces--immigration, free trade among the states, the growth of railways and other nationwide industries, foreign wars--have been at work to obliterate state lines. Advocates of the old order see in the change a breaking down of the principle of local self-government. To their minds the danger of majority tyranny, made possible by a centralization of power in a republic of such vast extent and varied interests, outweighs all the advantages of national uniformity and efficiency. Advocates of the new order think otherwise. They argue, moreover, that the states have become too great and populous to serve as units for purposes of home rule; that their boundaries are for the most part artificial and correspond to no real distinctions in the ordinary life of men. They assert that the instinct for local self-government remains as strong as it ever was, and instance the resentment of New York City over interference from Albany. The average man gives little thought to the constitutional aspect of the controversy. His interest in the prohibition movement is focused on other features which seem to him of more immediate concern. And yet, did he but realize it, the constitutional aspect transcends all the others in its importance for the future welfare and happiness of himself, his children, and his country. V THE NINETEENTH AMENDMENT A prudent man touches the question of woman suffrage gingerly. Many fingers have been burnt in that fire and its embers are not yet dead. Some mention of the Nineteenth Amendment seems necessary, however, in any discussion of federal encroachment on state power, and it may be possible to approach the suffrage movement from the standpoint of constitutional law without getting upon controversial ground. The United States Constitution as originally adopted did not prescribe who should be entitled to vote. That matter was left entirely in the hands of the states. The Constitution provided[1] that, for the election of members of the House of Representatives, "the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature." It was further provided that Senators should be chosen by the legislatures of the states[2] and that the President and Vice-president should be chosen by presidential electors appointed in such manner as the state legislatures might direct.[3] These were the only elective federal officials. [Footnote 1: Article I, Section 2.] [Footnote 2: Article I, Section 3.] [Footnote 3: Article II, Section 1.] While the states were thus left in full control, it does not follow that the matter was deemed wholly outside the proper scope of national authority. No argument is necessary to demonstrate that the regulation of the suffrage in national elections is or may be a matter of national concern. The question of prescribing the qualifications of voters in such elections was much debated in the Convention which framed the Constitution.[1] Some members were in favor of prescribing a property qualification and limiting the suffrage to freeholders. It was finally decided, however, to accept the qualifications prescribed by state law. In adopting this plan the Convention followed the line of least resistance. The qualifications of voters in the various states differed.[2] Most states required a property qualification, but some did not. It was felt that to attempt to impose a uniform rule on all the states would arouse opposition and create one more obstacle to be overcome in the formidable task of getting the Constitution ratified. [Footnote 1: See e.g., Farrand, "Records of the Federal Convention," Vol. II, p. 201 et seq.] [Footnote 2: For a statement of the qualifications in the various states see _Minor v. Happersett_, 21 Wall., 162.] There the matter rested, with suffrage qualifications regulated entirely by state law, until after the Civil War. Meanwhile, the states had been abolishing property tests, and universal male suffrage had been written into state constitutions. The cry for woman suffrage had begun, but as yet it was only a still small voice, inaudible to legislators. After the Civil War the problem of protecting the emancipated slaves had to be dealt with, and three constitutional amendments (Nos. XIII, XIV, and XV) were adopted with that end primarily in view. Number XIII, ratified in 1865, formally abolished slavery. Number XIV, ratified in 1868, extended citizenship to all persons born in the United States and provided (among other things) that no state should abridge the privileges or immunities of citizens of the United States. Number XV, ratified in 1870, provided that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Here was the entering wedge of federal interference. The amendments did not purport to deal with woman suffrage, but the pioneers of the suffrage movement thought they discovered in them a means of advancing their cause and lost no time in putting the matter to the test. Susan B. Anthony voted at Rochester, N.Y., in an election for a representative in Congress, claiming that the restriction of voting to males by the constitution and laws of New York was void as a violation of the Fourteenth Amendment providing that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." She was indicted for voting unlawfully, and on her trial before Justice Hunt of the United States Supreme Court, sitting at Circuit, the Court directed the jury to find a verdict of guilty and imposed a fine of $100 and costs.[1] [Footnote 1: _United States v. Anthony_, 11 Blatchford, 200.] Mrs. Virginia Minor raised a similar question in the courts of Missouri. The Missouri constitution limited the right to vote to male citizens. Mrs. Minor applied for registration as a voter, and on being refused brought suit against the Registrar of Voters on the ground that this clause of the Missouri constitution was in violation of the Fourteenth Amendment. The Missouri state courts decided against her, and the case was taken to the Supreme Court of the United States where the decision of the state courts was affirmed.[1] The Supreme Court held in effect that while Mrs. Minor was a citizen that fact alone did not make her a voter; that suffrage was not coextensive with citizenship, either when the Constitution was adopted or at the date of the Fourteenth Amendment, and was not one of the "privileges and immunities" guaranteed by that amendment. [Footnote 1: _Minor v. Happersett_, 21 Wall., 162.] A similar decision was rendered in the matter of Mrs. Myra Bradwell's application for a license to practise law in Illinois.[1] The Supreme Court held that the right to practise law in the state courts was not a privilege or immunity of a citizen of the United States within the meaning of the Fourteenth Amendment, and affirmed the decision of the Illinois Court denying Mrs. Bradwell's application. [Footnote 1: _Bradwell v. Illinois_, 16 Wall., 130.] The failure of these attempts to turn the Fourteenth Amendment to the advantage of the woman suffrage movement in no wise checked the movement or discouraged its leaders. They redoubled their efforts among the separate states, and worked to such good purpose that the opposition presently began to take on the aspect of a forlorn hope. "Votes for Women" became an accomplished fact in many states, and appeared on the verge of accomplishment in most of the others. Some states, however, were still holding out when the leaders of the movement, impatient of further delay and determined to coerce the recalcitrants, took the matter into the national arena and procured the proposal and ratification of an amendment to the Federal Constitution. The amendment provides: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. In other words, it adopts verbatim the phraseology of the Fifteenth Amendment, merely substituting the word "sex" for the words "race, color, or previous condition of servitude." So much for the historical background of the so-called Susan B. Anthony Amendment. It remains to consider just how far the amendment constitutes an encroachment by the Federal Government on the powers of the states. In so far as it affects the qualifications of voters at national elections (i.e., for president, senators, representatives) the encroachment is more apparent than real. As has already been pointed out, this is essentially a national question, and the Constitution adopted the suffrage qualifications prescribed by state law, not as a matter of principle, but for reasons of expediency and convenience. In so far, however, as the amendment imposes woman suffrage on the states in elections of state and local officials the situation is entirely different. That staunch advocate of national power, Alexander Hamilton, said in the _Federalist_:[1] Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular states, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the state governments? [Footnote 1: _Federalist_ LIX.] What Hamilton scouted as impossible has been accomplished in the Nineteenth Amendment. It in effect strikes out the word "male" from the suffrage provisions of state constitutions. It overrides state policy and interferes with the right of states to manage their own affairs. From the theoretical standpoint a more serious inroad on state prerogatives would be hard to find. Control of the suffrage is one of the fundamental rights of a free state. It belonged to the North American states before their union, and was not surrendered to the National Government when the union was effected. Moreover, the encroachment has a very practical side. To confer the suffrage on the educated women of Connecticut was one thing; to confer it on the Negro women of Alabama was quite a different matter, involving different considerations. The amendment took no heed of such differences but imposed a uniform rule on all the states, regardless of local prejudices or conditions. It is true that a somewhat similar encroachment on state power had been made by the Fifteenth Amendment, designed to enfranchise the Negroes. That amendment, however, had its origin in conditions growing out of the Civil War, and claimed its justification in the necessity for protecting the freed slaves against hostile state action. It was avowedly an emergency measure, and the success with which it has been nullified in some quarters testifies to the unwisdom of forcing such measures upon reluctant states. The conditions surrounding the adoption of the Nineteenth Amendment were altogether different. Few people take seriously the alleged analogy between the women and the slaves. The constitutional method--action through the separate states--was being pursued with signal success. The states were rapidly falling in line. Most of them had already granted woman suffrage or were ready to grant it. There was no overmastering need for coercing the states that were not yet ready. An impartial student of the period will be apt to conclude that the Nineteenth Amendment was the product of impatience rather than necessity. Someone may ask, "What effect will the granting of votes to women have on the problem of preserving the constitutional equilibrium?" The ultimate power lies with the voters, and the women with votes now equal or outnumber the men. What is the reaction of women voters likely to be toward questions of political theory? Ours is a governmental scheme of extreme complexity. As with animal organisms so with political systems, the higher they rise in the scale of development the more complicated they tend to become. An absolute monarchy is simplicity itself compared with our dual system. To maintain the proper adjustment of such a machine requires intelligence of a high order. The machine will not run itself and male tinkers have abundantly demonstrated that it is not fool-proof. But something more is required than mere intelligence. There must be, at least among the leaders, an instinct for governmental problems as distinguished from those of a merely social or personal character; an ability to recognize and a willingness to conform to underlying principles. How will the women voters meet this test? Granting (what few will dispute) that their intelligence at least equals that of the men, will they be as likely as men to look beyond the immediate social welfare problem to the governmental principle at stake? Will an abstract proposition hold its own in their minds against a concrete appeal? We do not attempt to answer these questions, but they contain food for thought. VI CONGRESS _versus_ THE SUPREME COURT--THE CHILD LABOR LAWS The present Federal Revenue Act is noteworthy in more aspects than its complexity and the disproportionate burden cast on possessors of great wealth. To students of our form of government it is particularly interesting because of provisions[1] purporting to impose a tax on employers of child labor, for these represent an attempt by Congress to nullify a decision of the Supreme Court and grasp a power belonging to the states. The story of these provisions throws a flood of light on a method by which our Constitution is being changed. [Footnote 1: Revenue Act of 1921, Title XII.] The evils of child labor have long engaged the attention of philanthropists and lawmakers. In comparatively recent years child labor laws are said to have been enacted in every state of the Union. These statutes, however, lacked uniformity. Some of them were not stringent enough to satisfy modern sentiment. Moreover, commercial considerations entered into the reckoning. Industries in states where the laws were stringent were found to be at a disadvantage in comparison with like industries in states where the laws were lax, and this came to be regarded as a species of unfair competition. The advantages of uniformity and standardization seemed obvious from both the philanthropic and the commercial viewpoints, and Congress determined to take a hand in the matter. No well-informed person supposed for a moment that the regulation of child labor was one of the functions of the General Government as those functions were planned by the makers of the Constitution. The United States Supreme Court had declared over and over again that such matters were the province of the states; that "speaking generally, the police power is reserved to the states and there is no grant thereof to Congress in the Constitution."[1] For some years, however, Congress had been finding ways to legislate indirectly upon matters which it had no power to approach directly. Under the grant of power in the Constitution "to regulate commerce with foreign nations and among the several States,"[2] Congress had enacted laws purporting to regulate commerce but in reality designed for the suppression or regulation of some other form of activity. These enactments had for the most part been sustained as constitutional by the Supreme Court (though with misgivings and sharp differences of opinion), the Court holding that it could not pass on the motives for congressional action. The enactment of a law regulating child labor seemed therefore but another step along a trail already blazed, and Congress determined to take that step. [Footnote 1: _Keller v. United States_, 213 U.S., 138.] [Footnote 2: Art. I, Sec. 8.] The statute enacted by Congress[1] prohibited transportation in interstate commerce of goods made at a factory in which, within thirty days prior to their removal therefrom, children under the age of fourteen years had been employed or permitted to work, or children between the ages of fourteen and sixteen had been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of 7 P.M. or before the hour of 6 A.M. The constitutionality of the act was at once challenged and suit brought to test the question. The Supreme Court held, by a vote of five to four,[2] that Congress had overstepped its power. The previous decisions which had upheld somewhat similar inroads on the police power of the states were distinguished and the act was declared unconstitutional. [Footnote 1: Act of September 1, 1916, 39 Stat., 675.] [Footnote 2: _Hammer v. Dagenhart_, 247 U.S., 251.] The distinction drawn by the majority of the Court between this and previous decisions was a narrow one and its validity has been questioned by some writers. It has nowhere been more clearly explained than in an address delivered before a body of lawyers by a former member of the Court.[1] Mr. Hughes said: There has been in late years a series of cases sustaining the regulation of interstate commerce, although the rules established by Congress had the quality of police regulation. This has been decided with respect to the interstate transportation of lottery tickets, of impure food and drugs, of misbranded articles, of intoxicating liquors, and of women for the purpose of debauchery. It was held to be within the power of Congress to keep "the channels of interstate commerce free from immoral and injurious uses." But the Court in this most recent decision has pointed out that in each of these cases "the use of interstate commerce was necessary to the accomplishment of harmful results." The Court, finding this element to be wanting in the Child Labor Case, denied the validity of the act of Congress. The Court found that the goods shipped were of themselves harmless. They were permitted to be freely shipped after thirty days from the time of removal from the factory. The labor of production, it was said, had been performed before transportation began and thus before the goods became the subject of interstate commerce. The fundamental proposition thus established is that the power over interstate commerce is not an absolute power of prohibition, but only one of regulation, and that the prior decisions in which prohibitory rules had been sustained rested upon the character of the particular subjects there involved. It was held that the authority over interstate commerce was to regulate such commerce and not to give Congress the power to control the states in the exercise of their police power over local trade and manufacture. [Footnote 1: Charles E. Hughes, President's Address, Printed in Year Book of New York State Bar Association, Vol. XLII, p. 227 et seq.] Congress did not receive this decision of the Supreme Court submissively. On the contrary, plans were laid to nullify it. The effort to legislate on child labor under cover of the power to regulate commerce having failed, recourse was had to the constitutional grant of power to lay taxes. Within six months after the decision of the Supreme Court declaring the act unconstitutional was announced, another statute similar in purpose and effect was enacted as part of a Federal Revenue Act.[1] This act provided for an additional tax of ten per cent. of the net profits received from the sale or distribution of the product of any establishment in which children under the age of fourteen years had been employed or permitted to work or children between the ages of fourteen and sixteen had been employed or permitted to work more than eight hours in any day or more than six days in any week or after the hour of 7 P.M. or before the hour of 6 A.M. during any portion of the taxable year. In other words, the law which had been declared void was substantially reënacted, with the substitution of a prohibitive tax for the clause prohibiting transportation in interstate commerce. [Footnote 1: Revenue Act of 1918, Title XII.] There was no pretense that this act was enacted for the purpose of raising revenue. The revenue feature was merely legislative camouflage. To quote the words of Justice Holmes in a recent case,[1] "Congress gave it the appearance of a taxing measure in order to give it a coating of constitutionality." [Footnote 1: _United States v. Jin Fuey Moy_, 241 U.S., 394.] The debate in the Senate was highly illuminating.[1] Its sponsors admitted that the measure was not expected or intended to produce revenue but was designed to regulate child labor and nullify the decision of the Supreme Court. Senators learned in the law conceded that if this purpose and effect were declared on the face of the act, or were necessarily inferable from its provisions, it must inevitably be declared unconstitutional. Reliance was placed, however, on the facts that the act was entitled "A bill to raise revenue," and that its provisions did not necessarily, on their face, belie this label. It was argued that the Supreme Court would be bound, under its own previous rulings, to treat the act as if it were what it purported on its face to be--a revenue measure--and to ignore common knowledge and senatorial admissions to the contrary. The measure passed the Senate by a substantial majority and was enacted as part of the revenue bill then under consideration, from which it has been carried forward into the present revenue law. [Footnote 1: See "Congressional Record" of December 18, 1918.] There the matter stands at this writing. A District Court judge has declared the new act unconstitutional but the question has not yet been passed upon by the Supreme Court. It would be venturesome to attempt to predict what the Supreme Court will do about it. Many constitutional lawyers seem to think that Congress has succeeded in its attempt and that the act will be sustained. Certainly there are strong precedents pointing that way. Three in particular will be relied upon--the Veazie Bank case, the Oleomargarine case and the Narcotic Drug Act case. In the Veazie Bank case[1] the Supreme Court upheld the validity of a so-called tax law whose purpose and effect were to suppress the circulation of notes of the state banks. In the Oleomargarine case[2] the Court upheld a tax whose purpose and effect were to suppress the manufacture and sale of oleomargarine artificially colored to look like butter. In the Narcotic Drug case[3] the Court upheld a tax imposed by the so-called Harrison Act[4] whose purpose was to regulate the sale and use of narcotic drugs. In each of these cases there could be no doubt in the mind of any intelligent man as to the motive for the enactment. The Court has uniformly maintained, however, that when Congress acts within the limits of its constitutional authority, it is not the province of the judicial branch of the Government to question its motives.[5] [Footnote 1: _Veazie Bank v. Fenno_, 8 Wall., 533, decided in 1870.] [Footnote 2: _McCray v. United States_, 195 U.S., 27, decided in 1904.] [Footnote 3: _United States v. Doremus_, 249 U.S., 86, decided in 1919.] [Footnote 4: 38 Stat., 785.] [Footnote 5: _Smith v. Kansas City Title Company_, 255 U.S., 180, 210.] In the Narcotic Drug Act case[1] the Court held While Congress may not exert authority which is wholly reserved to the states, the power conferred by the Constitution to levy excise taxes, uniform throughout the United States, is to be exercised at the discretion of Congress; and, where the provisions of the law enacted have some reasonable relation to this power, the fact that they may have been impelled by a motive, or may accomplish a purpose, other than the raising of revenue, cannot invalidate them; nor can the fact that they affect the conduct of a business which is subject to regulation by the state police power. [Footnote 1: _United States v. Doremus_, 249 U.S., 86.] It is true that, while the Supreme Court may not question congressional motives, it cannot escape the obligation to construe a statute in the light of its true nature and effect. The Court has said:[1] The direct and necessary result of a statute must be taken into consideration when deciding as to its validity, even if that result is not in so many words either enacted or distinctly provided for. In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect. [Footnote 1: _Collins v. New Hampshire_, 171 U.S., 30.] As already indicated, however, the nature and effect of a statute must ordinarily be determined from the form and contents of the act itself, rather than from outside sources, and the measure under consideration purports to be a revenue act. In the light of the decisions and principles of interpretation to which reference has been made, the case against the constitutionality of the act may seem well-nigh hopeless. The fact remains, however, that Congress has not met the fundamental objection raised by the Supreme Court. The Court declared the former act unconstitutional, not only because it transcended the power of Congress under the particular provision of the Constitution then invoked, viz., the Commerce Clause, but also on the broad ground of state rights, because it "exerts a power as to a purely local matter to which the federal authority does not extend." It is difficult to see how this objection is obviated by reënacting the act as a revenue measure. Under the circumstances perhaps the apprehensive foes of federal encroachment should withhold their lamentations until the Supreme Court has spoken again.[1] [Footnote 1: Since this chapter was put into print the Court has spoken. In _Bailey v. The Drexel Furniture Co._ (decided May 15, 1922) the Child Labor Tax Law was pronounced unconstitutional. The Court, while conceding that it must interpret the intent and meaning of Congress from the language of the act, held that the act on its face is an attempt to regulate matters of state concern by the use of a so-called tax as a penalty. The opinion of the Court, written by Chief Justice Taft, is an emphatic assertion of the duty and function of the Court to preserve the constitutional equilibrium between nation and states.] VII STATE RIGHTS AND THE SUPREME COURT A century ago the United States Supreme Court was the bulwark of national power against the assaults and pretensions of the states. To-day it is the defender of the states against the encroachments of national power. Let no one suppose, however, that this is because the Court itself has faced about. On our revolving planet a ship may be sailing toward the sun at sunrise and away from the sun in the afternoon without having changed its course. The Supreme Court has been the most consistent factor in our governmental scheme. While there have been differences of viewpoint between liberal constructionists and strict constructionists among its members, the Court on the whole has steered a fairly straight course. What has really altered is the environment in which the Court moves. The earth has been turning on its axis. The frame of mind of the people who compose states and nation has changed. At the outset (to cling for a moment to our nautical metaphor) the Court was obliged to put forth on an unknown sea. Its sailing orders under the new Constitution were unique. Precedents, those charts and lighthouses of the judicial mariner, were lacking. Progress was tentative and groping. Little wonder therefore that at first the business of the Court was meager and membership in its body seemed less attractive than membership in the judiciary of a state. Robert Hanson Harrison, one of President Washington's original appointees to the Supreme bench, declined to serve, preferring to accept a state judicial office. John Rutledge, another of the original appointees, resigned after a few months, preferring the position of Chancellor of his native state to which he had been chosen. John Jay, the first Chief Justice, resigned to become Governor of New York, and later declined a reappointment as Chief Justice in words indicating entire lack of faith in the powers and future of the Court. Nevertheless, the first period of the Court was by no means barren of achievement. A beginning was made. The supremacy of the national authority under the new Constitution was asserted. So stoutly indeed was it maintained in the memorable case of _Chisholm v. Georgia_,[1] that the country was thrown into a ferment. The Court had entertained a suit against a sovereign state by a private citizen of another state and rendered a decision in favor of the private citizen. The legislature of the sovereign state concerned (Georgia) responded by a statute denouncing the penalty of death against anyone who should presume to enforce any process upon the judgment within its jurisdiction. The matter was taken up in Congress and resulted in the proposal, and subsequent ratification by the states, of a constitutional amendment designed to prevent such actions in future.[2] It has been the fashion to speak of this incident as a striking example of the recall of judicial decisions. Such indeed it was. The decision did not suit the popular frame of mind and was promptly overruled in the method prescribed by the Constitution. It went a long way, however, toward establishing the Supreme Court as a power to be reckoned with on the side of national supremacy and authority. [Footnote 1: 2 Dallas, 419, decided in 1793.] [Footnote 2: Amendment XI.] Three years later the Court again took occasion to assert the national supremacy in no uncertain fashion. The case was _Ware v. Hylton_[1] and the Court laid down the proposition that a treaty of the Federal Government (in this case the treaty of peace with Great Britain) nullified previous state laws dealing with the subject matter. It is an interesting circumstance that one of the counsel on the losing side in this case was John Marshall of Virginia, and that this was the only case he ever argued before the tribunal through which he was destined to play so momentous a part in history. [Footnote 1: 3 Dallas, 199, decided in 1796.] In the annals of the Supreme Court and the development of American constitutional law the name of John Marshall stands preëminent. He was appointed Chief Justice by President John Adams, and took his seat on the Bench at the beginning of the new century (February 4, 1801). He was without judicial experience, but his record in other fields of activity and his well-known Federalist principles pointed him out as a man to be reckoned with and explain the aversion with which he was viewed by Thomas Jefferson, the incoming President. The breach between the President and the Chief Justice was widened by some of the early decisions of the latter upholding the supremacy of the National Government and the powers of the Supreme Court, notably the famous case of _Marbury v. Madison_,[1] in which was asserted the power of the Court to declare an act of Congress void as in conflict with the Constitution. Some years elapsed, however, before a case was decided which squarely involved a conflict between the powers of the Federal Government and the powers of a state. The issue came up in the case of _United States v. Judge Peters_.[2] This case involved a conflict of jurisdiction between the federal courts and the authorities of the State of Pennsylvania over the distribution of some prize money. Marshall's decision was a strong assertion of the federal jurisdiction and power. The Governor of Pennsylvania, under sanction of the state legislature, called out the state militia to resist enforcement of the judgment of the Court. Matters were tense for a time and bloodshed seemed imminent but the state finally backed down. [Footnote 1: 1 Cranch, 137.] [Footnote 2: 5 Cranch, 115, decided in 1809.] In the following year (1810) came the case of _Fletcher v. Peck_,[1] in which for the first time a statute of a state was held by the Supreme Court to be void as repugnant to the Federal Constitution. The State of Georgia had sought by statute to destroy rights in lands acquired under a previous act. It was held that the statute was unconstitutional as impairing the obligation of contracts within the meaning of the Constitution. [Footnote 1: 6 Cranch, 87.] In _Martin v. Hunter's Lessee_[1] was asserted the right of the Federal Supreme Court to overrule the judgment of a state court on questions arising under the Federal Constitution. The State of Virginia had denied that right and the Supreme Court reversed the judgment of the Virginia Court of Appeals. [Footnote 1: 1 Wheat., 304 (1816.)] In _McCulloch v. State of Maryland_,[1] a case involving an attempt by the State of Maryland to tax the Bank of the United States, Marshall's doctrine of implied powers was elaborated, and the judgment of the state court upholding the tax was reversed. [Footnote 1: 4 Wheat., 316 (1819).] In the _Dartmouth College case_[1] the doctrine of the inviolability of contracts against attack by state legislation was further developed. An act of the state legislature of New Hampshire had sought to alter the charter of Dartmouth College, and the New Hampshire courts had upheld the legislature. The Supreme Court reversed the state court and declared the statute unconstitutional under the clause of the Constitution which declares that no state shall make any law impairing the obligation of contracts. [Footnote 1: _Dartmouth College v. Woodward_, 4 Wheat., 518 (1819).] In the great case of _Gibbons v. Ogden_[1] the Court asserted the paramount jurisdiction of the National Government over interstate commerce. This was one of the most important and far-reaching of all Marshall's decisions. An injunction had been granted by Chancellor Kent and unanimously sustained by the Court of Errors of New York, restraining Gibbons from navigating the Hudson River by steamboats licensed by Congress for the coasting trade on the ground that he was thereby infringing the exclusive right, granted by the legislature of New York, to Robert R. Livingston and Robert Fulton to navigate the waters of the state with vessels moved by steam. The Supreme Court reversed the state courts and held the New York legislation void as an interference with the right of Congress, under the Constitution, to regulate interstate commerce. [Footnote 1: 9 Wheat., 1 (1824).] These were only a few of that series of great decisions which stand out like mountain peaks on the horizon of our national life. Marshall's judgments transformed a governmental experiment into something assured and permanent. They confirmed the national supremacy and made the Constitution workable. Marshall is known to history for his work in vindicating the national power under the Constitution. That was the need in his day and he met it with superlative wisdom and skill. It would be a mistake, however, to suppose that he favored federal encroachment upon the powers reserved to the states. On the contrary, he rendered decisions in favor of state rights which would be notable were they not overshadowed by the greater fame of the decisions which went to the building of the nation. With the passing of Marshall and the accession of Taney as Chief Justice a new chapter opened in the history of the Court. The Federalists had become extinct. Andrew Jackson had come into power and it had fallen to his lot to fill a majority of the seats upon the bench by appointments to vacancies. The result was at once apparent. Two cases[1] involving important constitutional questions, which had been argued during Marshall's lifetime but assigned for reargument on account of a division in the Court, were now decided contrary to Marshall's known views and in favor of a strict construction of national powers. Justice Story, Marshall's longtime associate on the bench, dissented strongly in both cases, lamenting the loss of Marshall's leadership and the change in the viewpoint of the Court. [Footnote 1: _Mayor of New York v. Miln_, 11 Peters, 102; _Briscoe v. Bank of Kentucky_, 11 Peters, 257, decided in 1837.] It would serve no useful purpose to enter upon a detailed consideration of the various decisions upon constitutional questions made during the twenty-eight years of Taney's Chief Justiceship. They were marked by great diversity of views among the members of the Court. In some of them, notably the famous Passenger cases,[1] the Court fell into a state reminiscent of the confusion of tongues that arose at the building of the Tower of Babel. The scope of certain of Marshall's decisions was limited.[2] Upon the whole, however, the structure of constitutional law which Marshall had reared was not torn down or greatly impaired. The national supremacy was upheld. Taney and his associates were for the most part patriotic men and eminent lawyers, proud of the Court and its history and anxious to add to its prestige. It is regrettable that the merits of some of them have been so obscured and their memory so clouded by a well-meaning but unfortunate excursion into the field of political passions. In the Dred Scott case[3] they thought to quiet agitation and contribute to the peace of their country by passing judgment upon certain angrily mooted questions of a political character. The effort was a failure and brought upon their heads, and upon Chief Justice Taney in particular, an avalanche of misrepresentation and obloquy. [Footnote 1: 7 Howard, 283 (1849).] [Footnote 2: Not always for the worse: vide the Charles River Bridge case, 11 Peters, 420, imposing salutary restrictions on the doctrine of the Dartmouth College case.] [Footnote 3: _Dred Scott v. Sandford_, 19 Howard, 393 (1857).] The suppression of the Great Rebellion brought an enormous increase in the national power and in the popular will to national power. State rights did not loom large in the popular or the legislative mind in reconstruction days. Taney was dead. The Supreme Court had been practically reconstituted by appointments made by President Lincoln and his immediate successors and it seems to have been anticipated that the new Court would take the view of national powers prevailing in Congress and the country at large. In this the popular expectation was doomed to disappointment. The Court displayed an unexpected solicitude for the rights of the states and firmness against federal encroachment. Chief Justice Salmon P. Chase, who had been President Lincoln's war Secretary of the Treasury, went so far as to pronounce unconstitutional some of his own official acts performed under the stress of war. In the great case of _State of Texas v. White_[1] the rights of Texas as a sovereign state were asserted, though Texas had joined in the Rebellion and was not represented in the national legislature. [Footnote 1: 7 Wall., 700 (1869).] In _The Collector v. Day_[1] it was held that Congress had no power to tax the salary of a state official. [Footnote 1: 11 Wall., 113 (1871).] In the Slaughter House cases[1] an act of the Legislature of Louisiana, granting to a corporation created by it exclusive rights to maintain slaughter houses for the City of New Orleans and other territory, was upheld, as a valid exercise of state police power, against claims that the legislation violated rights secured under the newly adopted amendments to the Federal Constitution (Amendments XIII, XIV, XV). The opinion of the Court delivered by a Northern judge (Miller of Iowa) stands as one of the bulwarks of state authority. [Footnote 1: 16 Wall., 36 (1873).] In a series of later cases various reconstruction acts of Congress involving encroachments upon state rights were either held unconstitutional or radically limited in their effect. For example, the decision in _United States v. Cruikshank_[1] greatly limited the effect of the so-called Federal Enforcement Act. The decision in _United States v. Harris_[2] declared unconstitutional portions of an act of Congress designed for the suppression of activities of the Ku-Klux variety. In the so-called Civil Rights cases[3] certain provisions of the federal Civil Rights Act, passed in furtherance of the purposes of the new constitutional amendments and designed to secure to persons of color equal enjoyment of the privileges of inns, public conveyances, theatres, etc., were held unconstitutional as an encroachment on the rights of the states. [Footnote 1: 92 U.S., 542 (1875).] [Footnote 2: 106 U.S., 629.] [Footnote 3: 109 U.S., 3.] These are but a few of the many decisions of the Supreme Court in the reconstruction period upholding the rights of the states against attempted federal encroachment arising from the conditions of the Civil War. The nation owes a debt of gratitude to the men who composed the Court at this time for their courage and firmness in the face of popular clamor and passion. The solicitude of the Court for the rights of the states did not end with the reconstruction period. It has continued down to the present day. In the Income Tax cases[1] the Court held that a tax upon income from bonds of a state municipal corporation was repugnant to the Constitution as a tax upon the borrowing power of the state. [Footnote 1: _Pollock v. Farmers Loan & Trust Co._, 157 U.S., 429 (1895).] In _Keller v. United States_[1] the Court declared unconstitutional, as an encroachment on the police power of the states, an act of Congress making it a felony to harbor alien prostitutes, the Court declaring that "speaking generally, the police power is reserved to the states and there is no grant thereof to Congress in the Constitution." [Footnote 1: 213 U.S., 138 (1909).] In the Child Labor case[1] the Court held the federal Child Labor Law of 1916 unconstitutional as invading the police power reserved to the states. The Court said: This Court has no more important function than that which devolves upon it the obligation to preserve inviolate the constitutional limitations upon the exercise of authority, federal and state, to the end that each may continue to discharge, harmoniously with the other, the duties entrusted to it by the Constitution.[2] [Footnote 1: _Hammer v. Dagenhart_, 247 U.S., 251 (1918).] [Footnote 2: An even stronger assertion of state rights is found in the Child Labor Tax Case (_Bailey v. The Drexel Furniture Co._) decided May 15, 1922, after this chapter had been put into print.] How is it then, someone may ask, if the Supreme Court is so zealous in defense of the rights of the states, that those rights are being encroached upon more and more by the National Government? The answer must be that there has been a change in the popular frame of mind. The desire for uniformity, standardization, efficiency, has outgrown the earlier fears of a centralization of power. Congress has found ways, under the constitutional grants of power to lay taxes and regulate interstate commerce, to legislate in furtherance of the popular demands. The Court is not strong enough (no governmental agency which could be devised would be strong enough) to hold back the flood or permanently thwart the popular will. In a government of the people everything has to yield sooner or later to the deliberate wish of the majority. Some profess to view the recent encroachments of federal power as a triumph of the principles advocated by Alexander Hamilton and John Marshall over the principles of Thomas Jefferson. Such a claim does Hamilton and Marshall an injustice. While they both stood for a strong National Government, neither of them contemplated any encroachment by that government on the principle of local self-government in local matters or the police power of the states. Marshall in one of his most powerful and far-reaching pronouncements in support of the national supremacy[1] speaks of that immense mass of legislation, which embraces everything within the territory of a state not surrendered to the General Government;... inspection laws, quarantine laws, health laws of every description ... are component parts of this mass. [Footnote 1: _Gibbons v. Ogden_, 9 Wheat., 1, 203, 208.] Later in the same opinion he refers to the acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens. ... The power of regulating their own purely internal affairs whether of trading or police. Hamilton devotes an entire number of the _Federalist_[1] to combatting the idea that the rights of the states are in danger of being invaded by the General Government. In another place[2] he returns to the idea that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members and concludes that it is to be hoped that the people will always take care to preserve the constitutional equilibrium between the general and the state governments. [Footnote 1: _Federalist_, Number XVII.] [Footnote 2: Id., Number XXXI.] That hope has failed of realization. The "constitutional equilibrium" of which Hamilton wrote is not being preserved. Some will say that this is an age of progress and we are improving upon Hamilton. Others, however, think we are forgetting the wisdom of the Fathers. VIII THE FEDERAL TAXING POWER AND THE INCOME TAX AMENDMENT Had the World War come five years earlier the United States would have been much handicapped and embarrassed in financing its share of the struggle. One of the chief sources of national revenue during and since the war, the income tax, would not have been available. The federal income tax had been declared unconstitutional by the Supreme Court in 1895, and it was not until eighteen years later that the obstacle pointed out by that decision was removed through the adoption of an amendment to the Constitution. The Sixteenth or Income Tax Amendment was proposed by Congress to the legislatures of the several states in 1909 and took effect, having been ratified by three-fourths of the states, in 1913. Declared by its sponsors at the outset to be intended merely as a recourse in case of emergency, the tax authorized by the amendment was at once put into operation and there seems to be little likelihood that it will ever be abandoned. Without the constitutional amendment no general income tax would be practicable. And yet the amendment conferred no new power of taxation on the National Government. To explain this seeming paradox it will be necessary to consider briefly the scope and limitations of the federal taxing power. One of the chief defects, perhaps the most vital defect of all, in the Confederation which carried through the Revolutionary War and preceded the Union, was its inability to raise revenue directly by taxation. The Confederation was obliged to call upon the several states to furnish their respective contributions or quotas, and requisitions upon the states encountered delays and sometimes were ignored altogether. There were no effective means of compulsion. With these facts before them the founders of the Union determined that the new government should not be wrecked upon this rock at any rate, and therefore insisted, against great opposition, in conferring upon it powers of taxation which were practically unlimited in their reach. The Constitution was made to provide that[1] the Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States. [Footnote 1: Const., Art. I, Sec. 8, Clause 1.] The only tax which Congress was expressly forbidden to lay was a tax on exports.[1] It was, however, provided that indirect taxes (duties, imposts, and excises) should be uniform throughout the United States,[2] and that direct taxes should be apportioned among the states according to population.[3] The last mentioned provision was a concession to the fears of the wealthier states lest their citizens be taxed unduly for the benefit of the poorer states, and represented one of the great compromises by which the ratification of the Constitution as a whole was secured. [Footnote 1: Const., Art. I, Sec. 9, Clause 5.] [Footnote 2: Id., Art. I, Sec. 8, Clause 1.] [Footnote 3: Id., Art. I, Sec. 2, Clause 3. Sec. 9, Clause 4.] The Constitution nowhere specified just what taxes were to be deemed "direct" (Madison in his notes of the Constitutional Convention records: "Mr. King asked what was the precise meaning of direct taxation? No one answd.")[1] or what kind of uniformity was intended by the provision that indirect taxes should be uniform, and more than a century was to elapse before either of these fundamental questions was finally settled. The answer to the latter question (that the term "uniform" refers purely to a geographical uniformity and is synonymous with the expression "to operate generally throughout the United States") was given by the Supreme Court in the year 1900 in the celebrated case of _Knowlton v. Moore_,[2] and met with general approval. The answer to the question of what constitutes a direct tax within the meaning of the Constitution, given by the Supreme Court in 1895 in the Income Tax cases,[3] met with a different reception. The decision upset long-settled ideas, disarranged the federal taxing system, aroused popular resentment, and ultimately led to the enactment of the Sixteenth Amendment. [Footnote 1: Farrand, "Records of the Federal Convention," Vol. II, p. 350.] [Footnote 2: 178 U.S., 41.] [Footnote 3: _Pollock v. Farmers Loan & Trust Co._, 157 U.S., 429.] The question had arisen early in the life of the Republic in the case of _Hylton v. United States_, decided in 1796.[1] This litigation involved the validity of a tax on carriages which had been imposed by Congress without apportionment among the states. Alexander Hamilton argued the case before the Supreme Court in support of the tax. The Court adopted his view and sustained the tax, holding that it was a tax on consumption and therefore a species of excise or duty. The Justices who wrote opinions expressed doubt whether anything but poll taxes and taxes on land were "direct" within the meaning of the Constitution. That point, however, was not necessarily involved and was not decided, though later generations came to assume that it had been decided. [Footnote 1: 3 Dallas, 171.] The tax on carriages was soon repealed and many years elapsed before the question came up again. After the Civil War broke out, however, the need of revenue became acute and various statutes taxing income without apportionment among the states were enacted by Congress. These met with general acquiescence. It was felt that they were emergency measures necessitated by the war, and they were in fact abandoned as soon as practicable after the war. A well-known lawyer, however (William M. Springer of Illinois), did not acquiesce and refused to pay his income tax, on the ground that it was a direct tax not levied in accordance with the Constitution. In the action brought to test the question[1] it appeared that the income on which Mr. Springer had been taxed was derived in part from the practice of his profession as an attorney. To this extent it was clearly an excise or duty, i.e., an indirect tax. As it was incumbent upon Mr. Springer, by reason of the form of the action, to demonstrate that the tax was void _in toto_ the Court could not do otherwise than decide against him. In rendering its decision, however, the Court took occasion to discuss the question as to what were direct taxes within the meaning of the Constitution, and expressed the view that the term included only capitation or poll taxes, and taxes on real estate. There the matter rested until the year 1894 when Congress enacted another income tax law. This time the argument from necessity was lacking. The country was in a state of profound peace. Opposition to the tax among the moneyed interests was widespread. Test suits were brought and after most elaborate and exhaustive argument and reargument the Hylton and Springer cases were distinguished and the act was held unconstitutional.[2] The decision was by a closely divided Court (five to four), the majority finally holding that "direct taxes" within the meaning of the Constitution included taxes on personal property and the income of personal property, as well as taxes on real estate and the rents or income of real estate. This conclusion was fatal to the act. It was conceded that the tax, in so far as it affected income derived from a business or profession, was an indirect tax and therefore valid without apportionment among the states, but the provisions for taxing the income of real and personal property were held to be an essential part of the taxing scheme invalidating the whole statute. [Footnote 1: _Springer v. United States_, 102 U.S., 586.] [Footnote 2: _Pollock v. Farmers Loan & Trust Co._, 157 U.S., 429; same case on rehearing, 158 U.S., 601.] This momentous decision was almost as unpopular with Congress and the general public as the decision in _Chisholm v. Georgia_ had been a hundred years earlier. Many legislators were in favor of enacting another income tax law forthwith and endeavoring to coerce the Court, through the force of legislative and popular opinion, to overrule its decision. Calmer counsels prevailed, however, and plans were initiated to get over the difficulty by a constitutional amendment. Meanwhile, steps were taken to eke out the national revenue by various excise taxes, notably the so-called Federal Corporation Tax. This novel tax, which was thought by many to involve a very serious encroachment by the Federal Government on the powers of the states, will be discussed more at length in later chapters.[1] [Footnote 1: See Chapters X and XI, infra.] The constitutional amendment as proposed by Congress and ratified by the states provided: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration." Thus far we have dealt only with such limitations upon the federal taxing power as are expressly imposed by the Constitution. As has been seen, the only express limitations are that direct taxes shall be apportioned among the states, that indirect taxes shall be uniform, and that exports shall not be taxed at all. There are, however, certain other limitations which we proceed to notice briefly. The Constitution provides[1] that the compensation of federal judges "shall not be diminished during their continuance in office." There is a similar provision as to the compensation of the President.[2] No attempt seems to have been made to tax the compensation of federal judges prior to 1862. A statute of that year subjected the salaries of all civil officers of the United States to an income tax and was construed by the revenue officers as including the compensation of the President and the judges. Chief Justice Taney, the head of the judiciary, wrote the Secretary of the Treasury a letter[3] protesting against the tax as a virtual diminution of judicial compensation in violation of the constitutional provision. No heed was paid to the protest at the time but some years later, upon the strength of an opinion by Attorney General Hoar, the tax on the compensation of the President and the judges was discontinued and the amounts theretofore collected were refunded. There the matter rested until after the Income Tax Amendment, when Congress again sought to impose a tax upon the income of the President and the judges. A federal judge of a Kentucky district contested the tax and the question came up before the Supreme Court for final decision. On behalf of the revenue department it was urged that a general income tax, operating alike on all classes, did not involve any violation of the constitutional provision. It was also contended that such a tax was expressly authorized by the Sixteenth Amendment giving Congress power to tax incomes "from whatever source derived." The Court in an exhaustive opinion[4] overruled both these contentions and held the tax to be a violation of the Constitution. [Footnote 1: Art. 3, Sec. 1.] [Footnote 2: Art. 2, Sec. 1, Clause 6.] [Footnote 3: See 157 U.S., 701.] [Footnote 4: _Evans v. Gore_, 253 U.S., 245.] It has often been asserted that a limitation of the federal taxing power is found in the "due process" clause of the Fifth Amendment of the Constitution, providing that no person shall "be deprived of life, liberty, or property without due process of law." This amendment relates to the powers of the General Government. A similar limitation on the powers of the states is found in the Fourteenth Amendment. Taxing laws have frequently been attacked in the courts on the ground that, by reason of some inequality or injustice in their provisions, the taxpayer was deprived of his property without due process of law. In cases involving state laws such objections have sometimes been sustained.[1] There seems, however, to have been no case in which a federal taxing law was declared invalid on this ground, and the Supreme Court has recently remarked that it is "well settled that such clause (viz., the due process clause of the Fifth Amendment) is not a limitation upon the taxing power conferred upon Congress by the Constitution."[2] Nevertheless, it is believed that if a federal tax were clearly imposed for other than a public use, or were imposed on tangible property lying outside the national jurisdiction, or were so arbitrary and without basis for classification as to amount to confiscation, relief might be obtained under the due process clause of the Fifth Amendment. [Footnote 1: See, e.g., _Union Tank Line Co. v. Wright_, 249 U.S., 275.] [Footnote 2: _Brushaber v. Union Pacific R.R._, 240 U.S., 24.] By far the most important and interesting of the implied limitations of the federal taxing power remains to be noticed. That is the limitation which prohibits the National Government from burdening by taxation the property or revenues or obligations of a state, or the emoluments of a state official, or anything connected with the exercise by a state of one of its governmental functions. In other words, while the National Government may tax income from bonds issued by England or France or their cities, it is powerless to tax the income from bonds of Rhode Island or the smallest of its towns. This implied limitation, nowhere categorically expressed but enunciated in a series of decisions of the Supreme Court, has not always met with acquiescence from the executive and legislative branches of the Government. In fact, Congress is now engaged in an effort to do away with it, at least in so far as concerns the right to tax the income from state and municipal bonds. To-day, however, it still stands as one of the most striking and unique characteristics of our governmental system. It will be discussed more at length in the next chapter. IX CAN CONGRESS TAX THE INCOME FROM STATE AND MUNICIPAL BONDS? That is a question which is agitating a good many people just now. Congress from time to time has seemed disposed to try it, in spite of misgivings as to the constitutionality of such legislation.[1] A recent Revenue Bill contained provisions taxing the income of future issues of such obligations, and a motion for the elimination of those provisions was defeated in the House 132 to 61. Meanwhile, protests were pouring in from state and municipal officers assailing the justice and expediency of such a tax. [Footnote 1: See, e.g., H. Report No. 767, 65th Cong., 2d Sess., accompanying House Revenue Bill of 1918 as reported by Mr. Kitchin from the Committee on Ways and Means, page 89.] It is not the purpose of this chapter to discuss the questions of justice and expediency (as to which there is much to be said on both sides) but rather to deal with the strictly legal aspects of the matter and indicate briefly why such a tax cannot be laid without a change in our fundamental law. Let it be said at the outset that no express provision of the United States Constitution forbids. On the contrary, that instrument confers on Congress the power to lay taxes without any restriction or limitation save that exports shall not be taxed, that duties, imposts, and excises shall be uniform throughout the United States, and that direct taxes must be apportioned among the states in proportion to population. The obstacle lies rather in an implied limitation inherent in our dual system of government and formulated in decisions of the Supreme Court. The founders of this republic established a form of government wherein the states, though subordinate to the Federal Government in all matters within its jurisdiction, nevertheless remained distinct bodies politic, each one supreme in its own sphere. In the famous phrase of Salmon P. Chase, pronouncing judgment as Chief Justice of the Supreme Court[1]: The Constitution in all its provisions looks to an indestructible Union, composed of indestructible states. [Footnote 1: _Texas v. White_, 7 Wall., 700, 725.] In a later case[1] another eminent justice (Samuel Nelson of New York) put the matter thus: The General Government, and the states, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former, in its appropriate sphere, is supreme; but the states within the limits of their powers not granted, or, in the language of the 10th Amendment, "reserved", are as independent of the General Government as that government within its sphere is independent of the states. [Footnote 1: _The Collector v. Day_, 11 Wall., 113, 124.] It follows that the two governments, national and state, must each exercise its powers so as not to interfere with the free and full exercise by the other of its powers. To do otherwise would be contrary to the fundamental compact embodied in the Constitution--in other words, it would be _unconstitutional_. This proposition was affirmed at an early day by Chief Justice John Marshall in the great case of _McCulloch vs. The State of Maryland_,[1] which involved the attempt of a state to tax the operations of a national bank. That case is one of the landmarks of American constitutional law. While it did not expressly decide that the Federal Government could not tax a state instrumentality but only the converse, i.e., that a state could not tax an instrumentality of the nation, the Court has held in many subsequent decisions that the proposition enunciated by the great Chief Justice works both ways. For example, it has declared that a state cannot tax the obligations of the United States because such a tax operates upon the power of the Federal Government to borrow money[2] and conversely, that Congress cannot tax the obligations of a state for the same reason;[3] that a state cannot tax the emoluments of an official of the United States[4] and conversely, that the United States cannot tax the salary of a state official;[5] that a state cannot impose a tax on the property or revenues of the United States[6] and conversely, that Congress cannot tax the property or revenues of a state or a municipality thereof.[7] [Footnote 1: 4 Wheaton, 316.] [Footnote 2: _Weston v. City of Charleston_, 2 Pet., 449.] [Footnote 3: _Mercantile Bank v. New York_, 121 U.S., 138, 162.] [Footnote 4: _Dobbins v. Commissioner of Erie County_, 16 Pet., 435.] [Footnote 5: _Collector v. Day_, 11 Wall., 113.] [Footnote 6: _Van Brocklin v. Tennessee_, 117 U.S., 151.] [Footnote 7: _United States v. Railroad Co._, 17 Wall., 322.] The Supreme Court has said (and many times reiterated in substance) that the National Government "cannot exercise its power of taxation so as to destroy the state governments, or embarrass their lawful action."[1] One of the most distinguished writers on American Constitutional law (Thomas M. Cooley, Chief Justice of the Supreme Court of Michigan and afterward Chairman of the federal Interstate Commerce Commission) has said: There is nothing in the Constitution which can be made to admit of any interference by Congress with the secure existence of any state authority within its lawful bounds. And any such interference by the indirect means of taxation is quite as much beyond the power of the national legislature as if the interference were direct and extreme.[2] [Footnote 1: _Railroad Co. v. Peniston_, 18 Wall., 5, 30.] [Footnote 2: _Cooley's Constitutional Limitations_, 7th Ed., 684.] The question as to the right of Congress to levy an income tax on municipal securities came up squarely in the famous Income Tax Cases[1] involving the constitutionality of the Income Tax Law of 1804. While the Supreme Court was sharply divided as to the constitutionality of other features of the law, it was unanimous as to the lack of authority in the United States to tax the interest on municipal bonds. [Footnote 1: _Pollock v. Farmers Loan & Trust Co._, 157 U.S., 429; same case on rehearing, 158 U.S., 601.] The decision in those cases is the law to-day (except in so far as it has been changed by the recent Sixteenth Amendment) with one possible limitation. It has been held that state agencies and instrumentalities, in order to be exempt from national taxation, must be of a strictly governmental character; the exemption does not extend to agencies and instrumentalities used by the state in carrying on an ordinary private business. This was decided in the South Carolina Dispensary case.[1] The State of South Carolina had taken over the business of selling liquor and the case involved a federal tax upon such business. The Court, while reaffirming the general doctrine, nevertheless upheld the tax on the ground that the business was not of a strictly governmental character. This decision suggests the possibility that if an attempt were made to tax state and municipal bonds the Court might draw a distinction based on the purpose for which the bonds were issued, and hold that only such as were issued for strictly governmental purposes were exempt. [Footnote 1: _South Carolina v. United States_, 199 U.S., 437, decided in 1905.] It remains to consider the effect of the Sixteenth Amendment. After the Supreme Court had held the Income Tax Law of 1894 unconstitutional on the ground that it was a direct tax and had not been apportioned among the states in proportion to population the Sixteenth Amendment to the Constitution was proposed and ratified. This amendment provides that the Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration. When the amendment was submitted to the states for approval some lawyers apprehended that the words "incomes from whatever source derived" might open the door to the taxation by the Government of income from state and municipal bonds. Charles E. Hughes, then Governor of New York, sent a special message to the Legislature opposing ratification of the amendment on this ground. Other lawyers, notably Senator Elihu Root, took a different view of the scope of the amendment, holding that it would not enlarge the taxing power but merely remove the obstacle found by the Supreme Court to the Income Tax Law of 1894, i.e., the necessity of apportionment among the states in proportion to population. This latter view has now been confirmed by the Supreme Court. In a case involving a tax on income from exports the Court said:[1] The Sixteenth Amendment ... does not extend the taxing power to new or excepted subjects, but merely removes all occasion, which otherwise might exist, for an apportionment among the states of taxes laid on income, whether it be derived from one source or another.... [Footnote 1: _Peck v. Lowe_, 247 U.S., 165.] In a case decided a little earlier[1] the Court, speaking through Chief Justice White, had said: By the previous ruling (i.e., in _Brushaber v. Union Pacific Railway Co._, 240 U.S., 1) it was settled that the provisions of the Sixteenth Amendment conferred no new power of taxation.... [Footnote 1: _Stanton v. Baltic Mining Co._, 240 U.S., 103, 112.] From what has been said it will be evident that the doctrine of exemption of state and municipal bonds from federal taxation is firmly embedded in our law and has not been affected by the Sixteenth Amendment. Whether it is a doctrine suited to present-day conditions is a question outside the scope of this paper. The fear of federal encroachment, so strong in the minds of the makers of our Constitution, has become little more than a tradition. To many it doubtless will seem that any rule of law which operates to prevent the nation, in the great exigency of war, from taxing a portion of the property of its citizens is pernicious and should be changed. If this be the view of a sufficient number the change can and will be made. Lawyers think, however, that it will have to be done by the orderly method of constitutional amendment, not by passing taxing statutes which a reluctant Court will be obliged to declare unconstitutional. Just now the tide of popular sentiment is setting strongly toward such a change. It was advocated in a recent Presidential message.[1] The immunity enjoyed by state bond issues is coming to be regarded less as a safeguard of state rights than as a means whereby the rich escape federal income surtaxes. One is tempted to predict that the next formal amendment of the Constitution will deal with this subject. If so, another inroad will have been made by the General Government on the failing powers of the states. [Footnote 1: Message of President Harding to Congress, December 6, 1921.] X IS THE FEDERAL CORPORATION TAX CONSTITUTIONAL?[1] [Footnote 1: Since this chapter was first published in 1909 as an article in the _Outlook_ magazine the specific question propounded in its title has been settled by the Supreme Court (_Flint v. Stone Tracy Co._, 220 U.S., 107). The paper is here reproduced, however, in the belief that its discussion of the principles of our dual system of Government is as pertinent now as it was before.] The most noteworthy enactment of the sixty-first Congress from a legal point of view, to say nothing of its economic and political significance, was the Corporation Tax Act. That Act, forming §38 of the Tariff Law, provides-- That every corporation ... organized for profit and having a capital stock represented by shares ... shall be subject to pay annually a special excise tax with respect to the carrying on or doing business by such corporation ... equivalent to one per centum upon the entire net income over and above five thousand dollars received by it from all sources, etc. The act goes on to require the corporations to make periodical reports concerning their business and affairs, and confers on the Commissioner of Internal Revenue a visitorial power to examine and compel further returns. The genesis of the act is interesting. The growing demand for more efficient regulation of the corporations, so pronounced during President Roosevelt's Administration, had foreshadowed such legislation. It remained, however, for President Taft to take the initiative and mould the shape which the legislation was to take. In the course of the Senate debate on the new Tariff Act it had become apparent that an influential party in Congress, backed by strong sympathy outside, was bent upon passing a general income tax act. The previous Income Tax Law had been pronounced unconstitutional by the Supreme Court as violating the provision of the Constitution that all direct taxes must be apportioned among the states in proportion to population.[1] That decision, however, had been reached by a bare majority of five to four. It had overruled previous decisions and overturned doctrines that had been acquiesced in almost from the foundation of the Government. A strong party was in favor of enacting another income tax law and bringing the question again before the Court in the hope that the Court as then constituted might be induced to overrule or materially modify the doctrine of the Pollock case. The President and his advisers viewed such a proposal with disfavor. To their minds the proper way to establish the right of Congress to levy an income tax was by an amendment to the Constitution, not by an assault upon the Supreme Court. Accordingly on June 16, 1909, the President transmitted a message to Congress[2] recommending a constitutional amendment, and proposing, in order to meet the present need for more revenue, an excise tax on corporations. The proposal, coupled as it was with a suggestion that such an act might be made to serve for purposes of federal supervision and control as well as revenue, met with favor and was enacted into law. [Footnote 1: _Pollock vs. Farmers' Loan & Trust Co._, 157 U.S., 429.] [Footnote 2: _Congressional Record_, June 16, 1909, p. 3450.] President Taft, himself an eminent constitutional lawyer, in his message recommending the law expressed full confidence in its constitutionality. The same view was taken by able lawyers who surrounded him in the capacity of advisers. The act is understood to have been drafted by Mr. Wickersham, the Attorney General, and vouched for by Senator Elihu Root and others of scarcely less authority in the domain of constitutional law. Against opinions from such sources one takes the field with diffidence. I venture, however, to outline briefly some reasons for doubting the constitutionality of the act. At the outset it is essential to determine the exact nature of the tax. Obviously it is not a tax upon income _as income_. If it were, it would be obnoxious to the decision in the Pollock case as imposing a direct tax without apportionment among the states. The language of the act, as well as the declarations of its sponsors, clearly indicate that it is intended, not as a direct tax on property, but as an excise tax on privilege. The phraseology of the act itself is--"A special excise tax with respect to the carrying on or doing business by such corporation," etc. Undoubtedly Congress has power to impose an excise tax upon occupation or business. This was expressly decided, in the case of the businesses of refining petroleum and refining sugar, by the Spreckels case,[1] referred to in President Taft's message. The message says: The decision of the Supreme Court in the case of Spreckels Sugar Refining Company against McClain (192 U.S., 397) seems clearly to establish the principle that such a tax as this is an excise tax upon privilege and not a direct tax on property, and is within the federal power without apportionment according to population. [Footnote 1: _Spreckels Sugar Refining Co. vs. McClain_, 192 U.S., 397.] What, then, is the privilege with respect to which the tax is imposed? Is it, like the tax involved in the Spreckels case, the privilege of doing the various kinds of business (manufacturing, mercantile, and the rest) in which the corporations subject to the operation of the law are engaged? Obviously not. No kind or kinds of business are specified in the act. The tax falls not only on corporations doing every conceivable kind of business, but also on the corporation that does no specific business whatever--the corporation which, in the language of an eminent judge, is merely "an incorporated gentleman of leisure."[1] Moreover, if the tax were merely upon the privilege of doing business, it would seem to be obnoxious to the cardinal principle of just taxation that taxes should be uniform. In other words, if the privilege of doing a business--say conducting a department store--were the thing taxed and the only thing taxed, the rule of uniformity would seem to require that a corporation and a copartnership conducting similar stores on opposite corners of the street should both be taxed. Nothing inconsistent with this view will be found in the Spreckels case. The party to that suit was, to be sure, a corporation, but the act under which the tax was imposed applied to individuals, firms, and corporations alike. [Footnote 1: Vann, J., in _People ex rel. vs. Roberts_, 154 N.Y., 1.] It must be concluded, therefore, that the tax is not upon the privilege of doing the businesses in which the various corporations in the land are engaged, but is rather a _tax upon the privilege of doing business in a corporate capacity_, or, in other words, upon the exercise of the corporate franchise. That this is so appears very clearly from the message of President Taft. He says: This is an excise tax upon the privilege of doing business as an artificial entity and of freedom from a general partnership liability enjoyed by those who own the stock. Assuming, then, that this is the real nature of the tax, is it constitutional? Unquestionably Congress may tax corporations organized under federal laws upon their franchises; any sovereignty may tax the creatures of its creation for the privilege of exercising their franchises; but how about corporations chartered by the states and doing purely an intrastate business? A state confers on John Doe and his associates the privilege or franchise of doing business in a corporate capacity. Can Congress impose a tax on the exercise of that privilege or franchise? The power to tax involves the power to destroy.[1] If Congress can impose a tax of one per cent., it can impose a tax of ten per cent. or fifty per cent., and thus impair or destroy altogether the value of corporate charters for business purposes. Does Congress possess such a power? The Constitution puts no express limitation on the right of Congress to levy excises except that they shall be "uniform throughout the United States." But there are certain implied limitations inherent in our dual system of government. The sovereignty and independence of the separate states within their spheres are as complete as are the sovereignty and independence of the General Government within its sphere.[2] Neither may interfere with or encroach upon the other. [Footnote 1: _McCulloch vs. Maryland_, 4 Wheat., 316.] [Footnote 2: _The Collector vs. Day_, 11 Wall., 113, 124.] The right to grant corporate charters for ordinary business purposes is an attribute of sovereignty belonging to the states, not to the General Government. The United States is a government of enumerated powers. The Constitution nowhere expressly confers upon Congress the right to grant corporate charters, and it is well settled that this right exists only in the limited class of cases where the granting of charters becomes incidental to some power expressly conferred on Congress, e.g., the power to establish a uniform currency, or the power to regulate interstate commerce. On the other hand, the right of the separate states to grant charters of incorporation is unquestionable. By the Tenth Amendment of the Constitution it is expressly provided: "The powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people." The Supreme Court long ago said: "A state may grant acts of incorporation for the attainment of those objects which are essential to the interests of society. _This power is incident to sovereignty._"[1] [Footnote 1: _Briscoe v. Bank of Kentucky_, 11 Peters, 257, 317.] The power to grant the franchise of corporate capacity being therefore inherent in the sovereignty of the states, will not a tax imposed by Congress upon the exercise of the franchise constitute an interference with the power? If so the tax is unconstitutional. The Supreme Court has repeatedly held, that the National Government "cannot exercise its power of taxation so as to destroy the state governments or embarrass their lawful action."[1] In the case of _California vs. Central Pacific R.R. Co._[2] the question was whether franchises granted to the Central Pacific Railroad Company by the United States were legitimate subjects of taxation by the State of California. The Supreme Court, in language frequently quoted in subsequent cases, discusses the nature and origin of franchises, concluding that a franchise is "a right, privilege, or power of public concern" existing and exercised by legislative authority. After enumerating various kinds of franchises, the Court remarks: "No persons can make themselves a body corporate and politic without legislative authority. Corporate capacity is a franchise." The Court continues: In view of this description of the nature of a franchise, how can it be possible that a franchise granted by Congress can be subject to taxation by a state without the consent of Congress? Taxation is a burden and may be laid so heavily as to destroy the thing taxed or render it valueless. As Chief Justice Marshall said in _McCulloch v. Maryland_, "The power to tax involves the power to destroy."... It seems to us almost absurd to contend that a power given to a person or corporation by the United States may be subjected to taxation by a state. The power conferred emanates from and is a portion of the power of the government that confers it. To tax it is not only derogatory to the dignity but subversive of the powers of the government, and repugnant to its paramount sovereignty. [Footnote 1: _Railroad Company v. Peniston_, 18 Wall., 5, 30.] [Footnote 2: 127 U.S., 1.] It is true that the Court was here discussing the right of a state to tax franchises granted by the United States, and not the converse of that question. The reasoning of the Court would seem, however, to apply with equal force to the right of the United States to tax a franchise granted by a state acting within the scope of its sovereign authority. Patent rights and copyrights are special privileges or franchises granted by the sovereign or government, and under the United States Constitution the right to grant patents and copyrights is expressly conferred on Congress. It has been held repeatedly that patent rights and copyrights are not taxable by the states[1]. As said by the New York Court of Appeals in a case involving the power of the state to tax copyrights:[2] To concede a right to tax them would be to concede a power to impede or burden the operation of the laws enacted by Congress to carry into execution a power vested in the National Government by the Constitution. [Footnote 1: _People ex rel. Edison, &c., Co., v. Assessors_, 156 N.Y., 417; _People ex rel. v. Roberts_, 159 N.Y., 70; _In Re Sheffield_, 64 Fed. Rep., 833; _Commonwealth v. Westinghouse, &c., Co._, 151 Pa., 265.] [Footnote 2: 159 N.Y., p. 75.] Apparently the same rule would be applicable were the granting of patent rights, like the granting of ordinary corporate franchises, a prerogative reserved under our system of government to the states instead of being expressly conferred on the United States. By parity of reasoning, the Federal Government in that case would have no power to tax them. It is familiar law, reiterated over and over again by the Supreme Court, that Congress cannot tax the means or instrumentalities employed by the states in exercising their powers and functions, any more than a state can tax the instrumentalities similarly employed by the General Government. Thus, it has been held that Congress cannot tax a municipal corporation (being a portion of the sovereign power of the state) upon its municipal revenues[1]; that Congress cannot impose a tax upon the salary of a judicial officer of a state[2]; that Congress cannot tax a bond given in pursuance of a state law to secure a liquor license.[3] [Footnote 1: _United States vs. Railroad Co._, 17 Wall., 322.] [Footnote 2: _Collector v. Day_, 11 Wall., 113.] [Footnote 3: _Ambrosini v. United States_, 185 U.S., 1.] In the light of these decisions it is not apparent how Congress can tax the franchises of those state corporations (and they are many and important) which perform some public or quasi-public function. A state, to carry out its purposes of internal improvement, charters an intrastate railway or ferry company with power to charge tolls and exercise the right of eminent domain. Is not the grant of corporate existence and privileges to such a corporation one of the means or instrumentalities employed by the state for carrying out its legitimate functions, and is not a tax by the Federal Government upon the exercise by such a corporation of its corporate powers an interference with such means or instrumentalities? In any discussion of the right of Congress to tax the agencies of or franchises granted by a state, the distinction must be borne in mind between a tax upon _property_ acquired by means of the franchise from the state and a tax upon the exercise of the franchise itself. The former tax may be perfectly valid where the latter would be unconstitutional. Thus, the Supreme Court has upheld a tax by a state upon the real and personal property (as distinct from the franchises) of a railway company chartered by Congress for private gain, while conceding that the state could not tax the franchises, because to do so would be a direct obstruction to federal powers.[1] [Footnote 1: _Union Pacific Railroad Company vs. Peniston_, 18 Wall., 5.] It remains to notice briefly one or two Supreme Court decisions which are relied upon by the sponsors of the new tax law. Reference has already been made to the decision in the Spreckels case[1] which upheld the validity of the tax imposed by the War Revenue Act of 1898 upon the gross receipts of corporations engaged in the businesses of refining petroleum and refining sugar. The Court held the tax to be an excise tax "in respect of the carrying on or doing the business of refining sugar," and such it obviously was. It was not a tax upon the privilege or franchise of doing business in a corporate capacity, like the tax now under debate. On the contrary, the act expressly applied to "every person, firm, corporation, or company carrying on or doing the business of refining sugar...." The case, therefore, has no bearing on the point we are discussing. Had the act applied only to corporations, a different question would have been involved. [Footnote 1: _Spreckels Sugar Refining Co. vs. McClain_. 192 U.S., 397.] The case of _Veazie Bank vs. Fenno_,[1] upholding the statute which taxed out of existence the circulation of the state banks, has frequently been cited as an authority sustaining the right of Congress to levy a tax upon a franchise or privilege granted by a state. It is true that in that case the eminent counsel for the bank (Messrs. Reverdy Johnson and Caleb Cushing) argued unsuccessfully "that the act imposing the tax impaired a franchise granted by the state, and that Congress had no power to pass any law which could do that;"[2] and that two justices dissented on that ground. The conclusive answer to this argument, was, however, that the power of the states to grant the particular right or privilege in question was subordinate to powers expressly conferred on Congress by the Constitution; that Congress was given power under the Constitution to provide a currency for the whole country, and the act in question was legislation appropriate to that end. The case does not hold that Congress has any general power to tax franchises or privileges granted by a state. [Footnote 1: 8 Wall., 533.] [Footnote 2: See 8 Wall., p. 535.] The scope of this chapter does not admit of further reference to the decisions. It is strongly urged, however, that none of them, rightly construed, will be found to sustain the right of the General Government to impose a tax upon the exercise of franchises granted by a state in the exercise of its independent sovereignty, and that such a decision would mark a new departure in our jurisprudence. In the debates in Congress over the bill many good lawyers appear to have assumed, somewhat too hastily, that the tax in question was an excise tax on business or occupation like that involved in the Spreckels case, and that the only constitutional question, therefore, was one of classification under the provision of the Constitution that excises shall be uniform throughout the United States. No less eminent a constitutional lawyer than Senator Bailey of Texas, in a colloquy with the junior Senator from New York, put the matter thus:[1] Mr. Root: May I ask the Senator from Texas if I am right in inferring from the statement which he has just made that he does not seriously question the constitutional power of the Congress to impose this tax on corporations? Mr. Bailey: Mr. President, I answer the Senator frankly that I do not.... I think the rule was and is that Congress can levy any tax it pleases except an export tax. Of course a direct tax must be apportioned and an indirect tax must be uniform. But the uniformity rule simply requires that wherever the subject of taxation is found, the tax shall operate equally upon it. I believe that Congress can tax all red-headed men engaged in a given line of business if it pleases.... I have no doubt if the tax fell upon every red-headed man in Massachusetts the same as in Mississippi or Texas and all other states, the law imposing such a tax would be perfectly valid. [Footnote 1: _Congressional Record_ for July 6, 1909, pp. 4251 to 4252.] The difficulty with this reasoning is that it overlooks the fact that the privilege of being red-headed is not a franchise granted by a sovereign state. From the viewpoint of constitutional law it may well be that Congress can tax a privilege conferred by the gods where it would be powerless to tax a franchise granted by the Legislature of New Jersey. XI THE CORPORATION TAX DECISION The immediate consequences of the decision of the United States Supreme Court[1] affirming the constitutionality of the federal corporation tax are so slight that its profound significance is likely to be overlooked. Until it was merged with the general income tax the exaction was not burdensome and proved easy of collection. The thing upon which it fell--the privilege of doing business in a corporate capacity--is an abstraction which makes little appeal to the sympathies or the moral sense. The public, more concerned with present conditions than with the passing of a theory, is indifferent. [Footnote 1: _Flint v. Stone Tracy Co._, 220 U.S., 107] Thus it has sometimes been with the turning points in the affairs of nations. They came quietly and without observation, and it remained for the historians to mark the actual parting of the ways. The Supreme Court holds, and in its opinion reiterates many times, that the tax is upon the _privilege of doing business in a corporate capacity_. Right here is the crux of the matter. Corporate capacity is not a right granted by the National Government. It is something which Congress can neither give nor take away. In the division of powers which marked the creation of our dual government the power to confer corporate capacity was reserved to the states. The decision, therefore, comes to this: Congress can by taxation burden the exercise of a privilege which only a state can grant. And the power to tax, it must be remembered, involves the power to destroy. This seems a long step from the theory of the men who founded the Republic. Nearly fifty years ago the Supreme Court stated the theory as follows: The states are, and they must ever be, co-existent with the National Government. Neither may destroy the other. Hence the Federal Constitution must receive a practical construction. Its limitations and its implied prohibitions must not be extended so far as to destroy the necessary powers of the States, or prevent their efficient exercise.[1] [Footnote 1: _Railroad Co. v. Peniston_, 18 Wall., 5.] The court buttresses its decision by the argument _ex necessitate_--that to hold otherwise would open the way for men to withdraw their business activities from the reach of federal taxation and thus cripple the National Government. The Court says: The inquiry in this connection is: How far do the implied limitations upon the taxing power of the United States over objects which would otherwise be legitimate subjects of federal taxation, withdraw them from the reach of the Federal Government in raising revenue, because they are pursued under franchises which are the creation of the states?... Let it be supposed that a group of individuals, as partners, were carrying on a business upon which Congress concluded to lay an excise tax. If it be true that the forming of a state corporation would defeat this purpose, by taking the necessary steps required by the state law to create a corporation and carrying on the business under rights granted by a state statute, the federal tax would become invalid and that source of national revenue be destroyed, except as to the business in the hands of individuals or partnerships. It cannot be supposed that it was intended that it should be within the power of individuals acting under state authority thus to impair and limit the exertion of authority which may be essential to national existence. This argument will not bear scrutiny. It apparently loses sight of the vital distinction between a tax on the mere doing of business and a tax on the privilege of doing that business in a corporate capacity. These are two very different things. The right of Congress to tax the doing of business was not disputed. It had been expressly upheld in the well-known case of _Spreckels Sugar Refining Co. v. McClain_,[1] which involved a tax on the business of refining sugar, whether done by a corporation or by individuals. The tax under consideration, however, goes further and fastens upon something new--something which in the case of individuals or partnerships has no existence at all--which comes into being only by the exercise of the sovereign power of a state. The opponents of the tax, far from attempting to narrow the existing field of federal taxation, were in fact resisting an encroachment by Congress on an entirely new field, created by, and theretofore reserved exclusively to, the separate states. It was conceded that Congress could tax a business when done by individuals and could tax the same business when done by a corporation. The inquiry was: Does the act of a state in clothing the individuals with corporate capacity create a new subject matter for taxation by the General Government? That was the real question before the Court, and the decision answers it in the affirmative. [Footnote 1: 192 U.S., 397.] Other illustrations of the same apparent confusion of thought are to be found in the opinion. For example, it is said (citing various cases involving a tax on business where the party taxed was a corporation): We think it is the result of the cases heretofore decided in this Court, that such _business activities_, though exercised because of state-created franchises, are not beyond the taxing power of the United States. Here again the Court seems to lose sight of the distinction between a tax on "business activities" and a tax on the privilege of conducting such activities in a corporate capacity. It is futile, however, to quarrel with the logic of the opinion. The question is closed and the Court, by affirming the judgments appealed from, has committed itself to the theory that the Federal Government may, by taxation, burden the exercise of a privilege which only a state can confer. With the expediency of that theory as applied to present-day political conditions we are not now concerned. The object of this chapter is to point out that the decision marks a distinct departure from the earlier doctrine that the two sovereignties, federal and state, are upon an equality within their respective spheres. In view of the centralizing forces which are tending to transform these sovereign states into mere political subdivisions of a nation, the decision is of great significance. Moreover, in a very practical way it touches the right of each state under the compact evidenced by the Federal Constitution to manage its internal affairs free from compulsion or interference by the other states. To illustrate: In some parts of the country the anti-corporation feeling runs high. Many men if given their way would tax the larger corporations out of existence. Under this decision the way is open whenever a majority can be secured in Congress. An increase in the tax rate is all that would be necessary. Make the rate ten per cent. or twenty per cent. instead of one per cent. and the thing is accomplished. New York may deem it good policy to encourage the carrying on of industry in a corporate form. Texas may take a different view and conclude that the solution of the trust problem lies in suppressing certain classes of corporations altogether. Under this decision it lies within the power of Texas and her associates if sufficiently numerous to impose their view on New York and make it impossible for her domestic industries to be carried on profitably in a corporate form. And yet the possibility of impressing the will of one state or group of states upon another state with respect to her internal affairs is the very thing which the founders of the republic sought most carefully to avoid. Had it been understood in 1787 that the grant of taxing powers to the General Government involved such a curtailment of state independence, few states, in all probability, would have been ready to ratify the Constitution. XII THE FEDERAL GOVERNMENT AND THE TRUSTS The curbing of monopolies and combinations in restraint of trade was no part of the functions of the Federal Government as planned by the framers of the Constitution. To their minds such matters, under the dual system of government which they were establishing, belonged to the states. The Constitution was designed to limit the National Government to functions absolutely needed for the national welfare. All other powers were "reserved to the states respectively or to the people." As time went on, however, and industries expanded it was seen that the power of no single state was adequate to control concerns operating in many states at the same time. The need of action by the General Government became manifest. Power in Congress to legislate on the subject, albeit somewhat indirectly, was found in the Commerce Clause of the Constitution, and in the year 1890 the Sherman Anti-Trust Act was enacted. Few statutes have aroused more discussion or been the subject of more perplexity and misunderstanding. President Taft's remark, made after the decisions of the Supreme Court in the Standard Oil and Tobacco Trust cases,[1] that "the business community now knows or ought to know where it stands," was received with incredulity approaching derision. Yet from a lawyer's point of view (and it must be borne in mind that the President was a lawyer and is now Chief Justice of the Court) the statement cannot be controverted. The decisions in the Standard Oil and Tobacco cases did in fact dispel whatever uncertainty remained as to what the Sherman Act means. [Footnote 1: _Standard Oil Co. v. United States_, 221 U.S., 1. _United States v. American Tobacco Co._, id., 106.] The Sherman Act[1] declares unlawful every contract, combination, or conspiracy in restraint of interstate trade, and every attempt to monopolize interstate trade. The legal uncertainties that have arisen in its enforcement have not been with respect to the meaning of the terms "restraint of trade" and "monopoly," although the popular impression is to the contrary. In 1890, when the statute was passed, contracts in restraint of trade and monopolies were already unlawful at common law, and these terms, by a long series of decisions both here and in England, had been defined as definitely as the nature of the subject matter permitted. While incapable (like the term "fraud") of precise definition covering all forms which the ingenuity of man might devise, nevertheless their meaning and scope were well within the understanding of any man of reasonable intelligence. Whatever legal uncertainties have arisen have been chiefly owing to two questions: first, What is _interstate_ trade within the meaning of the act? and second, Did the act enlarge the common-law rule as to what restraints were unlawful? [Footnote 1: "An Act to protect trade and commerce against unlawful restraints and monopolies," approved July 2, 1890.] The act was nearly shipwrecked at the outset on the first of these questions. In the famous Knight case,[1] the first case under the Sherman Act to reach the Supreme Court, it was held that the transactions by which the American Sugar Refining Company obtained control of the Philadelphia refineries and secured a virtual monopoly could not be reached under the act because they bore no direct relation to interstate commerce. The effect of this decision naturally was to cast doubt upon the efficacy of the statute and encourage the trust builders. Perhaps the case was rightly decided in view of the peculiar form in which the issues were presented by the pleadings. In the light of later decisions, however, it is safe to assert that the Court would now find little difficulty in applying the remedies provided by the Sherman Act to a similar state of facts, properly presented. While no prudent lawyer would care to attempt a comprehensive definition of what constitutes interstate commerce, it may at least be said that the tendency of the courts has been and is toward a constant broadening of the term to meet the facts of present-day business. [Footnote 1: _United States v. E.C. Knight Company_, 156 U.S., 1.] The other question--Did the Sherman Act change the common-law rule as to what restraints and monopolies are forbidden?--has been even more troublesome. The lawyers in Congress who framed the law believed that it did not. This is the testimony of Senator Hoar in his Autobiography, and as he was a member of the Senate Judiciary Committee which reported the act in its present form, and claims to have drawn it himself, his testimony is entitled to belief. The Supreme Court, however, in this particular went further than was expected. In the Trans-Missouri Freight Association case,[1] which reached the Supreme Court two years after the Knight case, that tribunal decided by a five-to-four majority that the words "_every_ contract ... in restraint of trade" extended the operation of the law beyond the technical common-law meaning of the terms employed so as in fact to include all contracts in restraint of interstate trade without exception or limitation. This theory was strongly combated by the minority of the court, speaking through Justice (afterwards Chief Justice) White, and was denounced by many eminent lawyers, notably the late James C. Carter, then leader of the New York Bar, who predicted that sooner or later it must be abandoned as untenable. Their protests were well founded. The theory, carried to its logical conclusion, would have prohibited a great variety of transactions theretofore deemed reasonable and proper, and would have brought large business to a standstill. As a matter of fact, it was never carried to its logical conclusion, and six years later it was expressly repudiated by Justice Brewer; one of the five, in the course of his concurring opinion in the Northern Securities case.[2] Justice Brewer said that while he believed the Trans-Missouri case had been rightly decided he also believed that in some respects the reasons given for the judgment could not be sustained. Instead of holding that the Anti-Trust Act included all contracts, reasonable or unreasonable, in restraint of interstate trade, the ruling should have been that the contracts there presented were unreasonable restraints of interstate trade, and as such within the scope of the Act.... Whenever a departure from common-law rules and definitions is claimed, the purpose to make the departure should be clearly shown. Such a purpose does not appear and such a departure was not intended. [Footnote 1: _United States v. Trans-Missouri Association_, 166 U.S., 290.] [Footnote 2: _Northern Securities Company v. United States_, 193 U.S., 197.] Nevertheless, the troublesome question remained, to plague lawyers and the community generally, until it was finally put at rest and the statute once more planted on the firm ground of common-law rule and definition by the decisions in the Standard Oil and Tobacco cases. What, then, is this common-law rule which President Taft found so clear? No one has discussed it more lucidly than did the youthful Circuit Judge Taft himself in delivering the opinion of the Circuit Court of Appeals in the Addyston Pipe & Steel Co. case,[1] an opinion in which his two associates on the bench, the late Justices Harlan and Lurton, concurred. The rule may be briefly stated as follows: Every contract or combination whose primary purpose and effect is to fix prices, limit production, or otherwise restrain trade is unlawful, provided the restraint be direct, material, and substantial. Where, however, the restraint of trade is not direct, but merely ancillary or collateral to some lawful contract or transaction, it is not unlawful, provided it is _reasonable_, that is to say, not broader than is required for the protection of the party in whose favor the restraint is imposed. [Footnote 1: _United States v. Addyston Pipe & Steel Co._, 85 Fed. Rep., 271.] A familiar illustration is the sale of a business and its goodwill, accompanied by a covenant on the part of the vendor not to compete. Such a covenant is collateral to the sale, and if not broader than is reasonably required for the protection of the vendee it will be upheld, although a similar agreement, standing alone and not collateral to a sale or other lawful transaction, would be in direct restraint of trade and unlawful. So much for the alleged uncertainty of the law. Candid men must agree with President Taft that in the light of the Supreme Court decisions it is reasonably clear what the Sherman Law means. But the fact that "the business community now knows or ought to know where it stands" with respect to the law does not greatly help the business situation. The real difficulty lies, not in the uncertainty of the law, but in the fact that the law does not fit actual present-day conditions. This is partly because many of the trusts were organized with full knowledge that they involved a violation of law but in the belief that the law could not or would not be effectively enforced. The realization that this belief was mistaken has thrown a good many people into a state of very genuine bewilderment, but it is an uncertainty, not as to what is firm ground, but as to how to get out of a bog, once having gotten in. For the most part, however, the general feeling of insecurity is due not so much to having knowingly overstepped the law, as to a change in economic conditions. The spirit of the time is one of coöperation and combination. It is manifested in the churches and colleges as well as in the marketplace. In the industrial arena, the tendency has been intensified by the invention of new machines and the resulting aggregations of fixed capital in forms designed for particular uses and incapable of diversion into other channels. Such rules of the common or customary law as were the outgrowth of an era of mobile capital and free competition no longer fit the conditions under which we are living. In a conflict between economic forces and legal enactment there can finally be but one outcome. The law must sooner or later adapt itself to life conditions. The real problem to-day is--how shall this adaptation be accomplished; how can statutes be framed which shall check abuses without falling under the wheels of social progress? Right here a swarm of half-informed theorizers are rushing in where trained economists fear to tread. It is difficult and dangerous ground, but there is at least one measure of legal reform--take away the right of one corporation to hold stock in another--which might be urged with confidence were it not for the existence of sundry oppressive and conflicting state laws. The abolition by law of the holding-company device is no new suggestion. It was strongly urged years ago by the late Edward B. Whitney. It was the keystone of the famous "Seven Sisters" statutes,[1] enacted with loud acclaim in New Jersey at the behest of Governor Woodrow Wilson (but subsequently repealed and thrown into the discard). Such a measure would be more effective and far-reaching than the public supposes. Nearly all the so-called trusts have been organized and are being held together in whole or in part, by the holding-company device. In many cases this has been done merely as an innocent measure of convenience. The device, however, is a perversion of the corporate machine to uses not contemplated by its inventors and fraught with danger. It is too powerful a weapon in the hands of those alive to its possibilities, enabling a small group of men with a relatively insignificant investment of capital to control a country-wide industry. Take the simplest possible illustration: The industry of manufacturing a particular commodity is carried on by a number of corporations scattered throughout the country with an aggregate capitalization of, say, $10,000,000. A, B, and C form a holding company to acquire a bare majority of the stock of each corporation, say $5,100,000 in the aggregate. They dispose of 49 per cent. of the holding company's stock to the public, retaining a working majority. At one step they have secured absolute control of a $10,000,000 industry with an investment of little more than one-quarter of that amount, and by pursuing the same process further they can reduce the investment necessary for controlling the industry almost to the vanishing point. [Footnote 1: Laws of New Jersey of 1913, chaps. 13-19.] It is needless to enlarge on the possible abuses of the holding-company device. They are coming to light more and more. The remedy, however, is not so simple as it seems at first blush. A summary abolition of the holding-company device would result in great injury and hardship to industry. In the present condition of the corporation laws of certain of the states, the right of large corporations to operate through local subsidiary corporations is a practical necessity. Otherwise they would be subjected to well-nigh intolerable exactions and interference. It has been the policy in some states in dealing with foreign corporations to attempt to impose, under the guise of fees for the privilege of doing business in the state, a tax on all their property and business wherever situated. Some of the attempts have been nullified by the Supreme Court as violative of the prohibition of the Fourteenth Amendment against taking property without due process of law, but these decisions have not wholly remedied the evil or checked the ingenuity of state legislators. In some jurisdictions great corporations seem to be regarded as fair game for which there is no closed season. Right here the scheme of federal incorporation brought forward during President Taft's administration has many attractions to offer. It would do away with the principal excuse for the holding-company device, and pave the way for its abolition. It should satisfy the general public because it would clothe the Government with enormously increased powers of regulation and control; it should be attractive to the corporations because it would afford relief from many of the intolerable restrictions, not always fair or intelligent, imposed by state legislatures. Under present conditions the right of a corporation of one state to do business in another (other than business of an interstate character) rests merely upon comity and may be granted or refused upon such terms as interest or prejudice may dictate. The right of a federal corporation to do business in the several states, on the other hand, rests upon the powers conferred on Congress by the Constitution and is not subject to the whims of state lawmakers. Such a corporation is not "foreign" in the states into which its activity extends and state laws aimed at foreign corporations will not hit it. Moreover a corporation with a federal charter can always take its controversies into the federal courts (except when Congress expressly forbids)[1]--a right of extreme practical value where anti-corporation feeling or local prejudice is strong. [Footnote 1: The Act of Jan. 28, 1915, took away this right in the case of railroad companies incorporated under federal charter (38 Stat. 804).] The scheme of federal incorporation presents some constitutional questions. As pointed out in a previous chapter, the Constitution nowhere expressly confers on Congress the right to grant corporate charters. Under Chief Justice Marshall's doctrine of "Implied Powers," however, it has become well settled that Congress has implied power to charter a corporation whenever that is an appropriate means of exercising one of the powers expressly conferred, for example, the power to regulate interstate commerce. The most serious constitutional question appears to be whether Congress can authorize such a corporation to manufacture, the process of manufacturing not being an activity of an interstate character. In any event, the difficulty could be surmounted by a constitutional amendment. In these days of facile amendment such a thing seems quite within the range of possibility. The scheme of federal incorporation is by no means new. In the Convention of 1787 which framed the Constitution, Mr. Madison advocated giving Congress the power to grant charters of incorporation. The proposition, however, did not find favor, Mr. King suggesting that it might foster the creation of mercantile monopolies.[1] [Footnote 1: See Farrand, "Records of the Federal Convention," Vol. II, pp. 615-616, 620.] This objection would scarcely be urged to-day, when the country-wide operations of the so-called "trusts" have given them a national character and made their control by federal power a practical necessity. XIII WHAT OF THE FUTURE? In the preceding pages we have observed from various viewpoints the impressive phenomenon of federal encroachment upon state power. It must have become obvious to the most casual reader that the tide is running swiftly and has already carried far. Hamilton was mistaken when he predicted in the _Federalist_[1] that the National Government would never encroach upon the state authorities. [Footnote 1: _Federalist_, Numbers XVII, XXXI.] What then of the future? Is the Constitution hopelessly out of date? Are the states to be submerged and virtually obliterated in the drift toward centralization? No thoughtful patriot can view such a possibility without the gravest misgivings. The integrity of the states was a cardinal principle of our governmental scheme. Abandon that and we are adrift from the moorings which to the minds of statesmen of past generations constituted the safety of the republic. No mere appeal to precedents and governmental theory will check the current. The Americans are a practical people, moving forward with conscious power toward the attainment of their aims, along the lines which seem to them most direct. They are more interested in results than in methods or theories. Experience has demonstrated that federal control often spells uniformity and efficiency where state control had meant divisions and weakness. They favor federal control because it gets results. There is another aspect of the matter, however. The burden of federal bureaucracy is beginning to be felt by the average man. He is being regulated more and more, in his meats and drinks, his morals and the activities of his daily life, from Washington. If he will only stop and think he must realize that no one central authority can supervise the daily lives of a hundred million people, scattered over half a continent, without becoming top-heavy. He must realize, too, that, even if such a centralization of power and responsibility were humanly possible, our National Government is unsuited for the task. The electorate is too numerous and heterogeneous; its interests and needs are too diverse. Shall the conduct of citizens of Mississippi be prescribed by vote of congressmen from New York, or supervised at the expense of New York taxpayers? Will an educational system suitable for Massachusetts necessarily fit the young of Georgia? Such suggestions carry their own answer. In the very nature of things there is bound to be a reaction against centralization sooner or later. The real question is whether it will come in time to save the present constitutional scheme. The makers of the Constitution never intended that the people of one state should regulate, or pay for supervising, the conduct of citizens of another state. They made a division of governmental powers between nation and states along broad and obvious lines. To the Federal Government were entrusted matters of a strictly national character--foreign relations, interstate commerce, fiscal and monetary system, post office, patents and copyrights. Everything else was reserved, to the states or the people. Here was a scheme at once explicit and elastic. Explicit as to the nature of the functions to be performed by the National Government; elastic enough to permit the exercise of all other powers reasonably incidental to the powers expressly granted. The Constitution is not, and never was intended to be, a strait-jacket. Proofs abound of the adequacy of the constitutional scheme to deal with changing conditions. For example, when the Constitution was adopted, railroads, the most powerful economic force in our present civilization, were unknown. Nevertheless, the Constitution contains adequate provision for dealing with the railroads. They are instruments of interstate commerce and may be controlled by the Federal Government under the express grant of power to regulate such commerce. Similar considerations apply in the case of those nationwide industrial combinations popularly known as "trusts." Their activities are largely in the field of interstate commerce and are subject to control as such by the Federal Government. Theoretically, only such activities of the railroads and trusts as are of an interstate character fall within the federal jurisdiction. Everything else lies within the jurisdiction of the states. However, a practical people will not long permit matters which are essentially single and entire in their nature (for example, railroad classifications and rates) to be split up merely for purposes of legal jurisdiction and control. In such matters, therefore, some measure of federal encroachment is inevitable in order that industry and progress shall not be hampered. The encroachment, however, is more apparent than real. The industries are national in scope, and all the activities of each are more or less interwoven and interdependent. Hence state regulation of the intrastate activities may sometimes be overruled as an interference with federal regulation of the interstate commerce. There is nothing in this which involves any real violation of the Constitution. It is merely an application of Marshall's doctrine of implied powers. Social welfare legislation presents a very different problem. Some of the most dangerous assaults upon the Constitution to-day are being made in that field. The leaven of socialistic ideas is working. Representative government is becoming more paternalistic. Legislation dealing with conduct and social and economic conditions is being demanded by public sentiment in constantly increasing measure. Such legislation for the most part affects state police power and lies clearly outside the scope of the powers conferred by the Constitution on the National Government. Moreover, "the insulated chambers afforded by the several states" (to borrow a phrase of Justice Oliver Wendell Holmes) are ideal fields for social experiment. If an experiment succeed, other states will follow suit. If it prove disastrous, the damage is localized. The nation as a whole remains unharmed. The sponsors for such legislation, however, are seldom content to deal with the states. Reform was ever impatient. The state method seems too slow, and the difficulty of securing uniformity too formidable. Moreover, it often happens that some states are indifferent to the reform proposed or even actively hostile. Accordingly, recourse is had to Congress, and Congress looks for a way to meet the popular demand. There being no direct way, and public sentiment being insistent, Congressmen find themselves under the painful necessity of circumventing the Constitution they have sworn to uphold. The desired legislation is enacted under the guise of an act to regulate commerce or raise revenue, and the task of upholding the Constitution is passed to the Supreme Court. Such subterfuges, far from arousing public condemnation, are praised by the unthinking as far-sighted statesmanship. It is popular nowadays to apply the term "forward-looking" to people who would make the National Government an agency for social-welfare work, and to characterize as "lacking in vision" anyone who interposes a constitutional principle in the path of a social reform. Friends of progress sometimes forget that the real forward-looking man is he who can see the pitfall ahead as well as the rainbow; the man of true vision is one whose view of the stars is steadied by keeping his feet firmly on the ground. It cannot be reiterated too often that, under our political system, legislation in the nature of police regulation (except in so far as it affects commerce or foreign relations) is the province of the states, not of the National Government. This is not merely sound constitutional law; it is good sense as well. Regulations salutary for Scandinavian immigrants of the northwest may not fit the Creoles of Louisiana. In the long run the police power will be exercised most advantageously for all concerned by local authority. The present tendency toward centralization cannot go on indefinitely. A point must be reached sooner or later when an over-centralized government becomes intolerable and breaks down of its own weight. As an eminent authority has put it: "If we did not have states we should speedily have to create them."[1] The states thus created, however, would not be the same. They would be mere governmental subdivisions, without the independence, the historic background, the traditions, or the sentiment of the present states. These influences, hitherto so potent in our national life, would have been lost. [Footnote 1: Address of Supreme Court Justice Charles E. Hughes before New York State Bar Association, January 14, 1916.] In a memorable address delivered in the year 1906 before the Pennsylvania Society in New York, Elihu Root, then Secretary of State in President Roosevelt's Cabinet, discussed the encroachments of federal power and expressed the view that the only way in which the states could maintain their power and authority was by awakening to a realization of their own duties to the country at large. He said: The Governmental control which they (the people) deem just and necessary they will have. It may be that such control would better be exercised in particular instances by the governments of the states, but the people will have the control they need either from the states or from the National Government; and if the states fail to furnish it in due measure, sooner or later constructions of the Constitution will be found to vest the power where it will be exercised--in the National Government. The true and only way to preserve state authority is to be found in the awakened conscience of the states, their broadened views and higher standard of responsibility to the general public; in effective legislation by the states, in conformity to the general moral sense of the country; and in the vigorous exercise for the general public good of that state authority which is to be preserved. Those words, spoken fifteen years ago, were prophetic. Moreover, they are as true to-day as when they were uttered. Will the people see these things in time? Americans with pride in their country's past and confidence in her future dare not say No. The awakening may be slow. Currents of popular will are not readily turned. It is hard to make the people think. But if leaders and teachers do their part American intelligence and prudence will assert themselves, and the slogan of an awakened public sentiment may yet be: "Back to the Constitution!" APPENDIX CONSTITUTION OF THE UNITED STATES OF AMERICA WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America. ARTICLE I. SECTION 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. SECTION 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. SECTION 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. SECTION 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. SECTION 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. SECTION 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. SECTION 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. SECTION 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. SECTION 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. SECTION 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. ARTICLE II. SECTION 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The electors shall meet in their respective States, and vote by ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." SECTION 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. SECTION 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. SECTION 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE III. SECTION 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. SECTION 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. SECTION 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE IV. SECTION 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. SECTION 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. SECTION 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. SECTION 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLE V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE VI. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. ARTICLE VII. The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven, and of the Independence of the United States of America the Twelfth IN WITNESS whereof We have hereunto subscribed our Names. G'o: WASHINGTON---- _Presidt. and deputy from Virginia_ _New Hampshire_ { JOHN LANGDON { NICHOLAS GILMAN _Massachusetts_ { NATHANIEL GORHAM { RUFUS KING _Connecticut_ { WM. SAML. JOHNSON { ROGER SHERMAN _New York_ ALEXANDER HAMILTON { WIL: LIVINGSTON _New Jersey_ { DAVID BREARLEY { WM. PATERSON { JONA: DAYTON { B. FRANKLIN { THOMAS MIFFLIN { ROBT. MORRIS _Pennsylvania_ { GEO. CLYMER { THOS. FITZSIMONS { JARED INGERSOLL { JAMES WILSON { GOUV MORRIS { GEO: READ { GUNNING BEDFORD Jun _Delaware_ { JOHN DICKINSON { RICHARD BASSETT { JACO: BROOM { JAMES McHENRY _Maryland_ { DAN OF ST THOS JENIFER { DANL. CARROLL _Virginia_ { JOHN BLAIR-- { JAMES MADISON JR. { WM. BLOUNT _North Carolina_ { RICHD. DOBBS SPAIGHT { HU WILLIAMSON { J. RUTLEDGE _South Carolina_ { CHARLES COTESWORTH PINCKNEY { CHARLES PINCKNEY { PIERCE BUTLER _Georgia_ { WILLIAM FEW { ABR. BALDWIN _Attest_ WILLIAM JACKSON _Secretary_ AMENDMENTS [ARTICLE I.] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [ARTICLE II.] A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. [ARTICLE III.] No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. [ARTICLE IV.] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [ARTICLE V.] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [ARTICLE VI.] In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence. [ARTICLE VII.] In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. [ARTICLE VIII.] Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [ARTICLE IX.] The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [ARTICLE X.] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [ARTICLE XI.] The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. [ARTICLE XII.] The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. [ARTICLE XIII.] SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. SECTION 2. Congress shall have power to enforce this article by appropriate legislation. [ARTICLE XIV.] SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. SECTION 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. SECTION 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. SECTION 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. [ARTICLE XV.] SECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. SECTION 2. The Congress shall have power to enforce this article by appropriate legislation. [ARTICLE XVI.] The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. [ARTICLE XVII.] The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the state legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointment until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution. [ARTICLE XVIII.] SECTION 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. SEC. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. SEC. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. [ARTICLE XIX.] The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation. 
26095	----	THE ATHENIAN CONSTITUTION by Aristotle Translated by Sir Frederic G. Kenyon Part 1 ...[They were tried] by a court empanelled from among the noble families, and sworn upon the sacrifices. The part of accuser was taken by Myron. They were found guilty of the sacrilege, and their bodies were cast out of their graves and their race banished for evermore. In view of this expiation, Epimenides the Cretan performed a purification of the city. Part 2 After this event there was contention for a long time between the upper classes and the populace. Not only was the constitution at this time oligarchical in every respect, but the poorer classes, men, women, and children, were the serfs of the rich. They were known as Pelatae and also as Hectemori, because they cultivated the lands of the rich at the rent thus indicated. The whole country was in the hands of a few persons, and if the tenants failed to pay their rent they were liable to be haled into slavery, and their children with them. All loans secured upon the debtor's person, a custom which prevailed until the time of Solon, who was the first to appear as the champion of the people. But the hardest and bitterest part of the constitution in the eyes of the masses was their state of serfdom. Not but what they were also discontented with every other feature of their lot; for, to speak generally, they had no part nor share in anything. Part 3 Now the ancient constitution, as it existed before the time of Draco, was organized as follows. The magistrates were elected according to qualifications of birth and wealth. At first they governed for life, but subsequently for terms of ten years. The first magistrates, both in date and in importance, were the King, the Polemarch, and the Archon. The earliest of these offices was that of the King, which existed from ancestral antiquity. To this was added, secondly, the office of Polemarch, on account of some of the kings proving feeble in war; for it was on this account that Ion was invited to accept the post on an occasion of pressing need. The last of the three offices was that of the Archon, which most authorities state to have come into existence in the time of Medon. Others assign it to the time of Acastus, and adduce as proof the fact that the nine Archons swear to execute their oaths 'as in the days of Acastus,' which seems to suggest that it was in his time that the descendants of Codrus retired from the kingship in return for the prerogatives conferred upon the Archon. Whichever way it may be, the difference in date is small; but that it was the last of these magistracies to be created is shown by the fact that the Archon has no part in the ancestral sacrifices, as the King and the Polemarch have, but exclusively in those of later origin. So it is only at a comparatively late date that the office of Archon has become of great importance, through the dignity conferred by these later additions. The Thesmothetae were many years afterwards, when these offices had already become annual, with the object that they might publicly record all legal decisions, and act as guardians of them with a view to determining the issues between litigants. Accordingly their office, alone of those which have been mentioned, was never of more than annual duration. Such, then, is the relative chronological precedence of these offices. At that time the nine Archons did not all live together. The King occupied the building now known as the Boculium, near the Prytaneum, as may be seen from the fact that even to the present day the marriage of the King's wife to Dionysus takes place there. The Archon lived in the Prytaneum, the Polemarch in the Epilyceum. The latter building was formerly called the Polemarcheum, but after Epilycus, during his term of office as Polemarch, had rebuilt it and fitted it up, it was called the Epilyceum. The Thesmothetae occupied the Thesmotheteum. In the time of Solon, however, they all came together into the Thesmotheteum. They had power to decide cases finally on their own authority, not, as now, merely to hold a preliminary hearing. Such then was the arrangement of the magistracies. The Council of Areopagus had as its constitutionally assigned duty the protection of the laws; but in point of fact it administered the greater and most important part of the government of the state, and inflicted personal punishments and fines summarily upon all who misbehaved themselves. This was the natural consequence of the facts that the Archons were elected under qualifications of birth and wealth, and that the Areopagus was composed of those who had served as Archons; for which latter reason the membership of the Areopagus is the only office which has continued to be a life-magistracy to the present day. Part 4 Such was, in outline, the first constitution, but not very long after the events above recorded, in the archonship of Aristaichmus, Draco enacted his ordinances. Now his constitution had the following form. The franchise was given to all who could furnish themselves with a military equipment. The nine Archons and the Treasurers were elected by this body from persons possessing an unencumbered property of not less than ten minas, the less important officials from those who could furnish themselves with a military equipment, and the generals [Strategi] and commanders of the cavalry [Hipparchi] from those who could show an unencumbered property of not less than a hundred minas, and had children born in lawful wedlock over ten years of age. These officers were required to hold to bail the Prytanes, the Strategi, and the Hipparchi of the preceding year until their accounts had been audited, taking four securities of the same class as that to which the Strategi and the Hipparchi belonged. There was also to be a Council, consisting of four hundred and one members, elected by lot from among those who possessed the franchise. Both for this and for the other magistracies the lot was cast among those who were over thirty years of age; and no one might hold office twice until every one else had had his turn, after which they were to cast the lot afresh. If any member of the Council failed to attend when there was a sitting of the Council or of the Assembly, he paid a fine, to the amount of three drachmas if he was a Pentacosiomedimnus, two if he was a Knight, and One if he was a Zeugites. The Council of Areopagus was guardian of the laws, and kept watch over the magistrates to see that they executed their offices in accordance with the laws. Any person who felt himself wronged might lay an information before the Council of Areopagus, on declaring what law was broken by the wrong done to him. But, as has been said before, loans were secured upon the persons of the debtors, and the land was in the hands of a few. Part 5 Since such, then, was the organization of the constitution, and the many were in slavery to the few, the people rose against the upper class. The strife was keen, and for a long time the two parties were ranged in hostile camps against one another, till at last, by common consent, they appointed Solon to be mediator and Archon, and committed the whole constitution to his hands. The immediate occasion of his appointment was his poem, which begins with the words: I behold, and within my heart deep sadness has claimed its place, As I mark the oldest home of the ancient Ionian race Slain by the sword. In this poem he fights and disputes on behalf of each party in turn against the other, and finally he advises them to come to terms and put an end to the quarrel existing between them. By birth and reputation Solon was one of the foremost men of the day, but in wealth and position he was of the middle class, as is generally agreed, and is, indeed, established by his own evidence in these poems, where he exhorts the wealthy not to be grasping. But ye who have store of good, who are sated and overflow, Restrain your swelling soul, and still it and keep it low: Let the heart that is great within you be trained a lowlier way; Ye shall not have all at your will, and we will not for ever obey. Indeed, he constantly fastens the blame of the conflict on the rich; and accordingly at the beginning of the poem he says that he fears 'the love of wealth and an overweening mind', evidently meaning that it was through these that the quarrel arose. Part 6 As soon as he was at the head of affairs, Solon liberated the people once and for all, by prohibiting all loans on the security of the debtor's person: and in addition he made laws by which he cancelled all debts, public and private. This measure is commonly called the Seisachtheia [= removal of burdens], since thereby the people had their loads removed from them. In connexion with it some persons try to traduce the character of Solon. It so happened that, when he was about to enact the Seisachtheia, he communicated his intention to some members of the upper class, whereupon, as the partisans of the popular party say, his friends stole a march on him; while those who wish to attack his character maintain that he too had a share in the fraud himself. For these persons borrowed money and bought up a large amount of land, and so when, a short time afterwards, all debts were cancelled, they became wealthy; and this, they say, was the origin of the families which were afterwards looked on as having been wealthy from primeval times. However, the story of the popular party is by far the most probable. A man who was so moderate and public-spirited in all his other actions, that when it was within his power to put his fellow-citizens beneath his feet and establish himself as tyrant, he preferred instead to incur the hostility of both parties by placing his honour and the general welfare above his personal aggrandisement, is not likely to have consented to defile his hands by such a petty and palpable fraud. That he had this absolute power is, in the first place, indicated by the desperate condition the country; moreover, he mentions it himself repeatedly in his poems, and it is universally admitted. We are therefore bound to consider this accusation to be false. Part 7 Next Solon drew up a constitution and enacted new laws; and the ordinances of Draco ceased to be used, with the exception of those relating to murder. The laws were inscribed on the wooden stands, and set up in the King's Porch, and all swore to obey them; and the nine Archons made oath upon the stone, declaring that they would dedicate a golden statue if they should transgress any of them. This is the origin of the oath to that effect which they take to the present day. Solon ratified his laws for a hundred years; and the following was the fashion in which he organized the constitution. He divided the population according to property into four classes, just as it had been divided before, namely, Pentacosiomedimni, Knights, Zeugitae, and Thetes. The various magistracies, namely, the nine Archons, the Treasurers, the Commissioners for Public Contracts (Poletae), the Eleven, and Clerks (Colacretae), he assigned to the Pentacosiomedimni, the Knights, and the Zeugitae, giving offices to each class in proportion to the value of their rateable property. To who ranked among the Thetes he gave nothing but a place in the Assembly and in the juries. A man had to rank as a Pentacosiomedimnus if he made, from his own land, five hundred measures, whether liquid or solid. Those ranked as Knights who made three hundred measures, or, as some say, those who were able to maintain a horse. In support of the latter definition they adduce the name of the class, which may be supposed to be derived from this fact, and also some votive offerings of early times; for in the Acropolis there is a votive offering, a statue of Diphilus, bearing this inscription: The son of Diphilus, Athenion hight, Raised from the Thetes and become a knight, Did to the gods this sculptured charger bring, For his promotion a thank-offering. And a horse stands in evidence beside the man, implying that this was what was meant by belonging to the rank of Knight. At the same time it seems reasonable to suppose that this class, like the Pentacosiomedimni, was defined by the possession of an income of a certain number of measures. Those ranked as Zeugitae who made two hundred measures, liquid or solid; and the rest ranked as Thetes, and were not eligible for any office. Hence it is that even at the present day, when a candidate for any office is asked to what class he belongs, no one would think of saying that he belonged to the Thetes. Part 8 The elections to the various offices Solon enacted should be by lot, out of candidates selected by each of the tribes. Each tribe selected ten candidates for the nine archonships, and among these the lot was cast. Hence it is still the custom for each tribe to choose ten candidates by lot, and then the lot is again cast among these. A proof that Solon regulated the elections to office according to the property classes may be found in the law still in force with regard to the Treasurers, which enacts that they shall be chosen from the Pentacosiomedimni. Such was Solon's legislation with respect to the nine Archons; whereas in early times the Council of Areopagus summoned suitable persons according to its own judgement and appointed them for the year to the several offices. There were four tribes, as before, and four tribe-kings. Each tribe was divided into three Trittyes [=Thirds], with twelve Naucraries in each; and the Naucraries had officers of their own, called Naucrari, whose duty it was to superintend the current receipts and expenditure. Hence, among the laws of Solon now obsolete, it is repeatedly written that the Naucrari are to receive and to spend out of the Naucraric fund. Solon also appointed a Council of four hundred, a hundred from each tribe; but he assigned to the Council of the Areopagus the duty of superintending the laws, acting as before as the guardian of the constitution in general. It kept watch over the affairs of the state in most of the more important matters, and corrected offenders, with full powers to inflict either fines or personal punishment. The money received in fines it brought up into the Acropolis, without assigning the reason for the mulct. It also tried those who conspired for the overthrow of the state, Solon having enacted a process of impeachment to deal with such offenders. Further, since he saw the state often engaged in internal disputes, while many of the citizens from sheer indifference accepted whatever might turn up, he made a law with express reference to such persons, enacting that any one who, in a time [Transcriber's note: of?] civil factions, did not take up arms with either party, should lose his rights as a citizen and cease to have any part in the state. Part 9 Such, then, was his legislation concerning the magistracies. There are three points in the constitution of Solon which appear to be its most democratic features: first and most important, the prohibition of loans on the security of the debtor's person; secondly, the right of every person who so willed to claim redress on behalf of any one to whom wrong was being done; thirdly, the institution of the appeal to the jurycourts; and it is to this last, they say, that the masses have owed their strength most of all, since, when the democracy is master of the voting-power, it is master of the constitution. Moreover, since the laws were not drawn up in simple and explicit terms (but like the one concerning inheritances and wards of state), disputes inevitably occurred, and the courts had to decide in every matter, whether public or private. Some persons in fact believe that Solon deliberately made the laws indefinite, in order that the final decision might be in the hands of the people. This, however, is not probable, and the reason no doubt was that it is impossible to attain ideal perfection when framing a law in general terms; for we must judge of his intentions, not from the actual results in the present day, but from the general tenor of the rest of his legislation. Part 10 These seem to be the democratic features of his laws; but in addition, before the period of his legislation, he carried through his abolition of debts, and after it his increase in the standards of weights and measures, and of the currency. During his administration the measures were made larger than those of Pheidon, and the mina, which previously had a standard of seventy drachmas, was raised to the full hundred. The standard coin in earlier times was the two-drachma piece. He also made weights corresponding with the coinage, sixty-three minas going to the talent; and the odd three minas were distributed among the staters and the other values. Part 11 When he had completed his organization of the constitution in the manner that has been described, he found himself beset by people coming to him and harassing him concerning his laws, criticizing here and questioning there, till, as he wished neither to alter what he had decided on nor yet to be an object of ill will to every one by remaining in Athens, he set off on a journey to Egypt, with the combined objects of trade and travel, giving out that he should not return for ten years. He considered that there was no call for him to expound the laws personally, but that every one should obey them just as they were written. Moreover, his position at this time was unpleasant. Many members of the upper class had been estranged from him on account of his abolition of debts, and both parties were alienated through their disappointment at the condition of things which he had created. The mass of the people had expected him to make a complete redistribution of all property, and the upper class hoped he would restore everything to its former position, or, at any rate, make but a small change. Solon, however, had resisted both classes. He might have made himself a despot by attaching himself to whichever party he chose, but he preferred, though at the cost of incurring the enmity of both, to be the saviour of his country and the ideal lawgiver. Part 12 The truth of this view of Solon's policy is established alike by common consent, and by the mention he has himself made of the matter in his poems. Thus: I gave to the mass of the people such rank as befitted their need, I took not away their honour, and I granted naught to their greed; While those who were rich in power, who in wealth were glorious and great, I bethought me that naught should befall them unworthy their splendour and state; So I stood with my shield outstretched, and both were safe in its sight, And I would not that either should triumph, when the triumph was not with right. Again he declares how the mass of the people ought to be treated: But thus will the people best the voice of their leaders obey, When neither too slack is the rein, nor violence holdeth the sway; For indulgence breedeth a child, the presumption that spurns control, When riches too great are poured upon men of unbalanced soul. And again elsewhere he speaks about the persons who wished to redistribute the land: So they came in search of plunder, and their cravings knew no bound, Every one among them deeming endless wealth would here be found. And that I with glozing smoothness hid a cruel mind within. Fondly then and vainly dreamt they; now they raise an angry din, And they glare askance in anger, and the light within their eyes Burns with hostile flames upon me. Yet therein no justice lies. All I promised, fully wrought I with the gods at hand to cheer, Naught beyond in folly ventured. Never to my soul was dear With a tyrant's force to govern, nor to see the good and base Side by side in equal portion share the rich home of our race. Once more he speaks of the abolition of debts and of those who before were in servitude, but were released owing to the Seisachtheia: Of all the aims for which I summoned forth The people, was there one I compassed not? Thou, when slow time brings justice in its train, O mighty mother of the Olympian gods, Dark Earth, thou best canst witness, from whose breast I swept the pillars broadcast planted there, And made thee free, who hadst been slave of yore. And many a man whom fraud or law had sold For from his god-built land, an outcast slave, I brought again to Athens; yea, and some, Exiles from home through debt's oppressive load, Speaking no more the dear ATHENIAN tongue, But wandering far and wide, I brought again; And those that here in vilest slavery Crouched 'neath a master's frown, I set them free. Thus might and right were yoked in harmony, Since by the force of law I won my ends And kept my promise. Equal laws I gave To evil and to good, with even hand Drawing straight justice for the lot of each. But had another held the goad as One in whose heart was guile and greediness, He had not kept the people back from strife. For had I granted, now what pleased the one, Then what their foes devised in counterpoise, Of many a man this state had been bereft. Therefore I showed my might on every side, Turning at bay like wolf among the hounds. And again he reviles both parties for their grumblings in the times that followed: Nay, if one must lay blame where blame is due, Wer't not for me, the people ne'er had set Their eyes upon these blessings e'en in dreams: While greater men, the men of wealthier life, Should praise me and should court me as their friend. For had any other man, he says, received this exalted post, He had not kept the people back, nor ceased Til he had robbed the richness of the milk. But I stood forth a landmark in the midst, And barred the foes from battle. Part 13 Such then, were Solon's reasons for his departure from the country. After his retirement the city was still torn by divisions. For four years, indeed, they lived in peace; but in the fifth year after Solon's government they were unable to elect an Archon on account of their dissensions, and again four years later they elected no Archon for the same reason. Subsequently, after a similar period had elapsed, Damasias was elected Archon; and he governed for two years and two months, until he was forcibly expelled from his office. After this, it was agreed, as a compromise, to elect ten Archons, five from the Eupatridae, three from the Agroeci, and two from the Demiurgi, and they ruled for the year following Damasias. It is clear from this that the Archon was at the time the magistrate who possessed the greatest power, since it is always in connexion with this office that conflicts are seen to arise. But altogether they were in a continual state of internal disorder. Some found the cause and justification of their discontent in the abolition of debts, because thereby they had been reduced to poverty; others were dissatisfied with the political constitution, because it had undergone a revolutionary change; while with others the motive was found in personal rivalries among themselves. The parties at this time were three in number. First there was the party of the Shore, led by Megacles the son of Alcmeon, which was considered to aim at a moderate form of government; then there were the men of the Plain, who desired an oligarchy and were led by Lycurgus; and thirdly there were the men of the Highlands, at the head of whom was Pisistratus, who was looked on as an extreme democrat. This latter party was reinforced by those who had been deprived of the debts due to them, from motives of poverty, and by those who were not of pure descent, from motives of personal apprehension. A proof of this is seen in the fact that after the tyranny was overthrown a revision was made of the citizen-roll, on the ground that many persons were partaking in the franchise without having a right to it. The names given to the respective parties were derived from the districts in which they held their lands. Part 14 Pisistratus had the reputation of being an extreme democrat, and he also had distinguished himself greatly in the war with Megara. Taking advantage of this, he wounded himself, and by representing that his injuries had been inflicted on him by his political rivals, he persuaded the people, through a motion proposed by Aristion, to grant him a bodyguard. After he had got these 'club-bearers', as they were called, he made an attack with them on the people and seized the Acropolis. This happened in the archonship of Comeas, thirty-one years after the legislation of Solon. It is related that, when Pisistratus asked for his bodyguard, Solon opposed the request, and declared that in so doing he proved himself wiser than half the people and braver than the rest,--wiser than those who did not see that Pisistratus designed to make himself tyrant, and braver than those who saw it and kept silence. But when all his words availed nothing he carried forth his armour and set it up in front of his house, saying that he had helped his country so far as lay in his power (he was already a very old man), and that he called on all others to do the same. Solon's exhortations, however, proved fruitless, and Pisistratus assumed the sovereignty. His administration was more like a constitutional government than the rule of a tyrant; but before his power was firmly established, the adherents of Megacles and Lycurgus made a coalition and drove him out. This took place in the archonship of Hegesias, five years after the first establishment of his rule. Eleven years later Megacles, being in difficulties in a party struggle, again opened negotiations with Pisistratus, proposing that the latter should marry his daughter; and on these terms he brought him back to Athens, by a very primitive and simple-minded device. He first spread abroad a rumour that Athens was bringing back Pisistratus, and then, having found a woman of great stature and beauty, named Phye (according to Herodotus, of the deme of Paeania, but as others say a Thracian flower-seller of the deme of Collytus), he dressed her in a garb resembling that of the goddess and brought her into the city with Pisistratus. The latter drove in on a chariot with the woman beside him, and the inhabitants of the city, struck with awe, received him with adoration. Part 15 In this manner did his first return take place. He did not, however, hold his power long, for about six years after his return he was again expelled. He refused to treat the daughter of Megacles as his wife, and being afraid, in consequence, of a combination of the two opposing parties, he retired from the country. First he led a colony to a place called Rhaicelus, in the region of the Thermaic gulf; and thence he passed to the country in the neighbourhood of Mt. Pangaeus. Here he acquired wealth and hired mercenaries; and not till ten years had elapsed did he return to Eretria and make an attempt to recover the government by force. In this he had the assistance of many allies, notably the Thebans and Lygdamis of Naxos, and also the Knights who held the supreme power in the constitution of Eretria. After his victory in the battle at Pallene he captured Athens, and when he had disarmed the people he at last had his tyranny securely established, and was able to take Naxos and set up Lygdamis as ruler there. He effected the disarmament of the people in the following manner. He ordered a parade in full armour in the Theseum, and began to make a speech to the people. He spoke for a short time, until the people called out that they could not hear him, whereupon he bade them come up to the entrance of the Acropolis, in order that his voice might be better heard. Then, while he continued to speak to them at great length, men whom he had appointed for the purpose collected the arms and locked them up in the chambers of the Theseum hard by, and came and made a signal to him that it was done. Pisistratus accordingly, when he had finished the rest of what he had to say, told the people also what had happened to their arms; adding that they were not to be surprised or alarmed, but go home and attend to their private affairs, while he would himself for the future manage all the business of the state. Part 16 Such was the origin and such the vicissitudes of the tyranny of Pisistratus. His administration was temperate, as has been said before, and more like constitutional government than a tyranny. Not only was he in every respect humane and mild and ready to forgive those who offended, but, in addition, he advanced money to the poorer people to help them in their labours, so that they might make their living by agriculture. In this he had two objects, first that they might not spend their time in the city but might be scattered over all the face of the country, and secondly that, being moderately well off and occupied with their own business, they might have neither the wish nor the time to attend to public affairs. At the same time his revenues were increased by the thorough cultivation of the country, since he imposed a tax of one tenth on all the produce. For the same reasons he instituted the local justices, and often made expeditions in person into the country to inspect it and to settle disputes between individuals, that they might not come into the city and neglect their farms. It was in one of these progresses that, as the story goes, Pisistratus had his adventure with the man of Hymettus, who was cultivating the spot afterwards known as 'Tax-free Farm'. He saw a man digging and working at a very stony piece of ground, and being surprised he sent his attendant to ask what he got out of this plot of land. 'Aches and pains', said the man; 'and that's what Pisistratus ought to have his tenth of'. The man spoke without knowing who his questioner was; but Pisistratus was so pleased with his frank speech and his industry that he granted him exemption from all taxes. And so in matters in general he burdened the people as little as possible with his government, but always cultivated peace and kept them in all quietness. Hence the tyranny of Pisistratus was often spoken of proverbially as 'the age of gold'; for when his sons succeeded him the government became much harsher. But most important of all in this respect was his popular and kindly disposition. In all things he was accustomed to observe the laws, without giving himself any exceptional privileges. Once he was summoned on a charge of homicide before the Areopagus, and he appeared in person to make his defence; but the prosecutor was afraid to present himself and abandoned the case. For these reasons he held power long, and whenever he was expelled he regained his position easily. The majority alike of the upper class and of the people were in his favour; the former he won by his social intercourse with them, the latter by the assistance which he gave to their private purses, and his nature fitted him to win the hearts of both. Moreover, the laws in reference to tyrants at that time in force at Athens were very mild, especially the one which applies more particularly to the establishment of a tyranny. The law ran as follows: 'These are the ancestral statutes of the ATHENIANs; if any persons shall make an attempt to establish a tyranny, or if any person shall join in setting up a tyranny, he shall lose his civic rights, both himself and his whole house.' Part 17 Thus did Pisistratus grow old in the possession of power, and he died a natural death in the archonship of Philoneos, three and thirty years from the time at which he first established himself as tyrant, during nineteen of which he was in possession of power; the rest he spent in exile. It is evident from this that the story is mere gossip which states that Pisistratus was the youthful favourite of Solon and commanded in the war against Megara for the recovery of Salamis. It will not harmonize with their respective ages, as any one may see who will reckon up the years of the life of each of them, and the dates at which they died. After the death of Pisistratus his sons took up the government, and conducted it on the same system. He had two sons by his first and legitimate wife, Hippias and Hipparchus, and two by his Argive consort, Iophon and Hegesistratus, who was surnamed Thessalus. For Pisistratus took a wife from Argos, Timonassa, the daughter of a man of Argos, named Gorgilus; she had previously been the wife of Archinus of Ambracia, one of the descendants of Cypselus. This was the origin of his friendship with the Argives, on account of which a thousand of them were brought over by Hegesistratus and fought on his side in the battle at Pallene. Some authorities say that this marriage took place after his first expulsion from Athens, others while he was in possession of the government. Part 18 Hippias and Hipparchus assumed the control of affairs on grounds alike of standing and of age; but Hippias, as being also naturally of a statesmanlike and shrewd disposition, was really the head of the government. Hipparchus was youthful in disposition, amorous, and fond of literature (it was he who invited to Athens Anacreon, Simonides, and the other poets), while Thessalus was much junior in age, and was violent and headstrong in his behaviour. It was from his character that all the evils arose which befell the house. He became enamoured of Harmodius, and, since he failed to win his affection, he lost all restraint upon his passion, and in addition to other exhibitions of rage he finally prevented the sister of Harmodius from taking the part of a basket-bearer in the Panathenaic procession, alleging as his reason that Harmodius was a person of loose life. Thereupon, in a frenzy of wrath, Harmodius and Aristogeiton did their celebrated deed, in conjunction with a number of confederates. But while they were lying in wait for Hippias in the Acropolis at the time of the Panathenaea (Hippias, at this moment, was awaiting the arrival of the procession, while Hipparchus was organizing its dispatch) they saw one of the persons privy to the plot talking familiarly with him. Thinking that he was betraying them, and desiring to do something before they were arrested, they rushed down and made their attempt without waiting for the rest of their confederates. They succeeded in killing Hipparchus near the Leocoreum while he was engaged in arranging the procession, but ruined the design as a whole; of the two leaders, Harmodius was killed on the spot by the guards, while Aristogeiton was arrested, and perished later after suffering long tortures. While under the torture he accused many persons who belonged by birth to the most distinguished families and were also personal friends of the tyrants. At first the government could find no clue to the conspiracy; for the current story, that Hippias made all who were taking part in the procession leave their arms, and then detected those who were carrying secret daggers, cannot be true, since at that time they did not bear arms in the processions, this being a custom instituted at a later period by the democracy. According to the story of the popular party, Aristogeiton accused the friends of the tyrants with the deliberate intention that the latter might commit an impious act, and at the same time weaken themselves, by putting to death innocent men who were their own friends; others say that he told no falsehood, but was betraying the actual accomplices. At last, when for all his efforts he could not obtain release by death, he promised to give further information against a number of other persons; and, having induced Hippias to give him his hand to confirm his word, as soon as he had hold of it he reviled him for giving his hand to the murderer of his brother, till Hippias, in a frenzy of rage, lost control of himself and snatched out his dagger and dispatched him. Part 19 After this event the tyranny became much harsher. In consequence of his vengeance for his brother, and of the execution and banishment of a large number of persons, Hippias became a distrusted and an embittered man. About three years after the death of Hipparchus, finding his position in the city insecure, he set about fortifying Munichia, with the intention of establishing himself there. While he was still engaged on this work, however, he was expelled by Cleomenes, king of Lacedaemon, in consequence of the Spartans being continually incited by oracles to overthrow the tyranny. These oracles were obtained in the following way. The Athenian exiles, headed by the Alcmeonidae, could not by their own power effect their return, but failed continually in their attempts. Among their other failures, they fortified a post in Attica, Lipsydrium, above Mt. Parnes, and were there joined by some partisans from the city; but they were besieged by the tyrants and reduced to surrender. After this disaster the following became a popular drinking song: Ah! Lipsydrium, faithless friend! Lo, what heroes to death didst send, Nobly born and great in deed! Well did they prove themselves at need Of noble sires a noble seed. Having failed, then, in every other method, they took the contract for rebuilding the temple at Delphi, thereby obtaining ample funds, which they employed to secure the help of the Lacedaemonians. All this time the Pythia kept continually enjoining on the Lacedaemonians who came to consult the oracle, that they must free Athens; till finally she succeeded in impelling the Spartans to that step, although the house of Pisistratus was connected with them by ties of hospitality. The resolution of the Lacedaemonians was, however, at least equally due to the friendship which had been formed between the house of Pisistratus and Argos. Accordingly they first sent Anchimolus by sea at the head of an army; but he was defeated and killed, through the arrival of Cineas of Thessaly to support the sons of Pisistratus with a force of a thousand horsemen. Then, being roused to anger by this disaster, they sent their king, Cleomenes, by land at the head of a larger force; and he, after defeating the Thessalian cavalry when they attempted to intercept his march into Attica, shut up Hippias within what was known as the Pelargic wall and blockaded him there with the assistance of the Athenians. While he was sitting down before the place, it so happened that the sons of the Pisistratidae were captured in an attempt to slip out; upon which the tyrants capitulated on condition of the safety of their children, and surrendered the Acropolis to the Athenians, five days being first allowed them to remove their effects. This took place in the archonship of Harpactides, after they had held the tyranny for about seventeen years since their father's death, or in all, including the period of their father's rule, for nine-and-forty years. Part 20 After the overthrow of the tyranny, the rival leaders in the state were Isagoras son of Tisander, a partisan of the tyrants, and Cleisthenes, who belonged to the family of the Alcmeonidae. Cleisthenes, being beaten in the political clubs, called in the people by giving the franchise to the masses. Thereupon Isagoras, finding himself left inferior in power, invited Cleomenes, who was united to him by ties of hospitality, to return to Athens, and persuaded him to 'drive out the pollution', a plea derived from the fact that the Alcmeonidae were suppposed to be under the curse of pollution. On this Cleisthenes retired from the country, and Cleomenes, entering Attica with a small force, expelled, as polluted, seven hundred Athenian families. Having effected this, he next attempted to dissolve the Council, and to set up Isagoras and three hundred of his partisans as the supreme power in the state. The Council, however, resisted, the populace flocked together, and Cleomenes and Isagoras, with their adherents, took refuge in the Acropolis. Here the people sat down and besieged them for two days; and on the third they agreed to let Cleomenes and all his followers depart, while they summoned Cleisthenes and the other exiles back to Athens. When the people had thus obtained the command of affairs, Cleisthenes was their chief and popular leader. And this was natural; for the Alcmeonidae were perhaps the chief cause of the expulsion of the tyrants, and for the greater part of their rule were at perpetual war with them. But even earlier than the attempts of the Alcmeonidae, one Cedon made an attack on the tyrants; when there came another popular drinking song, addressed to him: Pour a health yet again, boy, to Cedon; forget not this duty to do, If a health is an honour befitting the name of a good man and true. Part 21 The people, therefore, had good reason to place confidence in Cleisthenes. Accordingly, now that he was the popular leader, three years after the expulsion of the tyrants, in the archonship of Isagoras, his first step was to distribute the whole population into ten tribes in place of the existing four, with the object of intermixing the members of the different tribes, and so securing that more persons might have a share in the franchise. From this arose the saying 'Do not look at the tribes', addressed to those who wished to scrutinize the lists of the old families. Next he made the Council to consist of five hundred members instead of four hundred, each tribe now contributing fifty, whereas formerly each had sent a hundred. The reason why he did not organize the people into twelve tribes was that he might not have to use the existing division into trittyes; for the four tribes had twelve trittyes, so that he would not have achieved his object of redistributing the population in fresh combinations. Further, he divided the country into thirty groups of demes, ten from the districts about the city, ten from the coast, and ten from the interior. These he called trittyes; and he assigned three of them by lot to each tribe, in such a way that each should have one portion in each of these three localities. All who lived in any given deme he declared fellow-demesmen, to the end that the new citizens might not be exposed by the habitual use of family names, but that men might be officially described by the names of their demes; and accordingly it is by the names of their demes that the Athenians speak of one another. He also instituted Demarchs, who had the same duties as the previously existing Naucrari,--the demes being made to take the place of the naucraries. He gave names to the demes, some from the localities to which they belonged, some from the persons who founded them, since some of the areas no longer corresponded to localities possessing names. On the other hand he allowed every one to retain his family and clan and religious rites according to ancestral custom. The names given to the tribes were the ten which the Pythia appointed out of the hundred selected national heroes. Part 22 By these reforms the constitution became much more democratic than that of Solon. The laws of Solon had been obliterated by disuse during the period of the tyranny, while Cleisthenes substituted new ones with the object of securing the goodwill of the masses. Among these was the law concerning ostracism. Four years after the establishment of this system, in the archonship of Hermocreon, they first imposed upon the Council of Five Hundred the oath which they take to the present day. Next they began to elect the generals by tribes, one from each tribe, while the Polemarch was the commander of the whole army. Then, eleven years later, in the archonship of Phaenippus they won the battle of Marathon; and two years after this victory, when the people had now gained self-confidence, they for the first time made use of the law of ostracism. This had originally been passed as a precaution against men in high office, because Pisistratus took advantage of his position as a popular leader and general to make himself tyrant; and the first person ostracized was one of his relatives, Hipparchus son of Charmus, of the deme of Collytus, the very person on whose account especially Cleisthenes had enacted the law, as he wished to get rid of him. Hitherto, however, he had escaped; for the Athenians, with the usual leniency of the democracy, allowed all the partisans of the tyrants, who had not joined in their evil deeds in the time of the troubles to remain in the city; and the chief and leader of these was Hipparchus. Then in the very next year, in the archonship of Telesinus, they for the first time since the tyranny elected, tribe by tribe, the nine Archons by lot out of the five hundred candidates selected by the demes, all the earlier ones having been elected by vote; and in the same year Megacles son of Hippocrates, of the deme of Alopece, was ostracized. Thus for three years they continued to ostracize the friends of the tyrants, on whose account the law had been passed; but in the following year they began to remove others as well, including any one who seemed to be more powerful than was expedient. The first person unconnected with the tyrants who was ostracized was Xanthippus son of Ariphron. Two years later, in the archonship of Nicodemus, the mines of Maroneia were discovered, and the state made a profit of a hundred talents from the working of them. Some persons advised the people to make a distribution of the money among themselves, but this was prevented by Themistocles. He refused to say on what he proposed to spend the money, but he bade them lend it to the hundred richest men in Athens, one talent to each, and then, if the manner in which it was employed pleased the people, the expenditure should be charged to the state, but otherwise the state should receive the sum back from those to whom it was lent. On these terms he received the money and with it he had a hundred triremes built, each of the hundred individuals building one; and it was with these ships that they fought the battle of Salamis against the barbarians. About this time Aristides the son of Lysimachus was ostracized. Three years later, however, in the archonship of Hypsichides, all the ostracized persons were recalled, on account of the advance of the army of Xerxes; and it was laid down for the future that persons under sentence of ostracism must live between Geraestus and Scyllaeum, on pain of losing their civic rights irrevocably. Part 23 So far, then, had the city progressed by this time, growing gradually with the growth of the democracy; but after the Persian wars the Council of Areopagus once more developed strength and assumed the control of the state. It did not acquire this supremacy by virtue of any formal decree, but because it had been the cause of the battle of Salamis being fought. When the generals were utterly at a loss how to meet the crisis and made proclamation that every one should see to his own safety, the Areopagus provided a donation of money, distributing eight drachmas to each member of the ships' crews, and so prevailed on them to go on board. On these grounds people bowed to its prestige; and during this period Athens was well administered. At this time they devoted themselves to the prosecution of the war and were in high repute among the Greeks, so that the command by sea was conferred upon them, in spite of the opposition of the Lacedaemonians. The leaders of the people during this period were Aristides, of Lysimachus, and Themistocles, son of Lysimachus, and Themistocles, son of Neocles, of whom the latter appeared to devote himself to the conduct of war, while the former had the reputation of being a clever statesman and the most upright man of his time. Accordingly the one was usually employed as general, the other as political adviser. The rebuilding of the fortifications they conducted in combination, although they were political opponents; but it was Aristides who, seizing the opportunity afforded by the discredit brought upon the Lacedaemonians by Pausanias, guided the public policy in the matter of the defection of the Ionian states from the alliance with Sparta. It follows that it was he who made the first assessment of tribute from the various allied states, two years after the battle of Salamis, in the archonship of Timosthenes; and it was he who took the oath of offensive and defensive alliance with the Ionians, on which occasion they cast the masses of iron into the sea. Part 24 After this, seeing the state growing in confidence and much wealth accumulated, he advised the people to lay hold of the leadership of the league, and to quit the country districts and settle in the city. He pointed out to them that all would be able to gain a living there, some by service in the army, others in the garrisons, others by taking a part in public affairs; and in this way they would secure the leadership. This advice was taken; and when the people had assumed the supreme control they proceeded to treat their allies in a more imperious fashion, with the exception of the Chians, Lesbians, and Samians. These they maintained to protect their empire, leaving their constitutions untouched, and allowing them to retain whatever dominion they then possessed. They also secured an ample maintenance for the mass of the population in the way which Aristides had pointed out to them. Out of the proceeds of the tributes and the taxes and the contributions of the allies more than twenty thousand persons were maintained. There were 6,000 jurymen, 1,600 bowmen, 1,200 Knights, 500 members of the Council, 500 guards of the dockyards, besides fifty guards in the Acropolis. There were some 700 magistrates at home, and some 700 abroad. Further, when they subsequently went to war, there were in addition 2,500 heavy-armed troops, twenty guard-ships, and other ships which collected the tributes, with crews amounting to 2,000 men, selected by lot; and besides these there were the persons maintained at the Prytaneum, and orphans, and gaolers, since all these were supported by the state. Part 25 Such was the way in which the people earned their livelihood. The supremacy of the Areopagus lasted for about seventeen years after the Persian wars, although gradually declining. But as the strength of the masses increased, Ephialtes, son of Sophonides, a man with a reputation for incorruptibility and public virtue, who had become the leader of the people, made an attack upon that Council. First of all he ruined many of its members by bringing actions against them with reference to their administration. Then, in the archonship of Conon, he stripped the Council of all the acquired prerogatives from which it derived its guardianship of the constitution, and assigned some of them to the Council of Five Hundred, and others to the Assembly and the law-courts. In this revolution he was assisted by Themistocles, who was himself a member of the Areopagus, but was expecting to be tried before it on a charge of treasonable dealings with Persia. This made him anxious that it should be overthrown, and accordingly he warned Ephialtes that the Council intended to arrest him, while at the same time he informed the Areopagites that he would reveal to them certain persons who were conspiring to subvert the constitution. He then conducted the representatives delegated by the Council to the residence of Ephialtes, promising to show them the conspirators who assembled there, and proceeded to converse with them in an earnest manner. Ephialtes, seeing this, was seized with alarm and took refuge in suppliant guise at the altar. Every one was astounded at the occurrence, and presently, when the Council of Five Hundred met, Ephialtes and Themistocles together proceeded to denounce the Areopagus to them. This they repeated in similar fashion in the Assembly, until they succeeded in depriving it of its power. Not long afterwards, however, Ephialtes was assassinated by Aristodicus of Tanagra. In this way was the Council of Areopagus deprived of its guardianship of the state. Part 26 After this revolution the administration of the state became more and more lax, in consequence of the eager rivalry of candidates for popular favour. During this period the moderate party, as it happened, had no real chief, their leader being Cimon son of Miltiades, who was a comparatively young man, and had been late in entering public life; and at the same time the general populace suffered great losses by war. The soldiers for active service were selected at that time from the roll of citizens, and as the generals were men of no military experience, who owed their position solely to their family standing, it continually happened that some two or three thousand of the troops perished on an expedition; and in this way the best men alike of the lower and the upper classes were exhausted. Consequently in most matters of administration less heed was paid to the laws than had formerly been the case. No alteration, however, was made in the method of election of the nine Archons, except that five years after the death of Ephialtes it was decided that the candidates to be submitted to the lot for that office might be selected from the Zeugitae as well as from the higher classes. The first Archon from that class was Mnesitheides. Up to this time all the Archons had been taken from the Pentacosiomedimni and Knights, while the Zeugitae were confined to the ordinary magistracies, save where an evasion of the law was overlooked. Four years later, in the archonship of Lysicrates, thirty 'local justices', as they as they were called, were re-established; and two years afterwards, in the archonship of Antidotus, consequence of the great increase in the number of citizens, it was resolved, on the motion of Pericles, that no one should be admitted to the franchise who was not of citizen birth by both parents. Part 27 After this Pericles came forward as popular leader, having first distinguished himself while still a young man by prosecuting Cimon on the audit of his official accounts as general. Under his auspices the constitution became still more democratic. He took away some of the privileges of the Areopagus, and, above all, he turned the policy of the state in the direction of sea power, which caused the masses to acquire confidence in themselves and consequently to take the conduct of affairs more and more into their own hands. Moreover, forty-eight years after the battle of Salamis, in the archonship of Pythodorus, the Peloponnesian war broke out, during which the populace was shut up in the city and became accustomed to gain its livelihood by military service, and so, partly voluntarily and partly involuntarily, determined to assume the administration of the state itself. Pericles was also the first to institute pay for service in the law-courts, as a bid for popular favour to counterbalance the wealth of Cimon. The latter, having private possessions on a regal scale, not only performed the regular public services magnificently, but also maintained a large number of his fellow-demesmen. Any member of the deme of Laciadae could go every day to Cimon's house and there receive a reasonable provision; while his estate was guarded by no fences, so that any one who liked might help himself to the fruit from it. Pericles' private property was quite unequal to this magnificence and accordingly he took the advice of Damonides of Oia (who was commonly supposed to be the person who prompted Pericles in most of his measures, and was therefore subsequently ostracized), which was that, as he was beaten in the matter of private possessions, he should make gifts to the people from their own property; and accordingly he instituted pay for the members of the juries. Some critics accuse him of thereby causing a deterioration in the character of the juries, since it was always the common people who put themselves forward for selection as jurors, rather than the men of better position. Moreover, bribery came into existence after this, the first person to introduce it being Anytus, after his command at Pylos. He was prosecuted by certain individuals on account of his loss of Pylos, but escaped by bribing the jury. Part 28 So long, however, as Pericles was leader of the people, things went tolerably well with the state; but when he was dead there was a great change for the worse. Then for the first time did the people choose a leader who was of no reputation among men of good standing, whereas up to this time such men had always been found as leaders of the democracy. The first leader of the people, in the very beginning of things, was Solon, and the second was Pisistratus, both of them men of birth and position. After the overthrow of the tyrants there was Cleisthenes, a member of the house of the Alcmeonidae; and he had no rival opposed to him after the expulsion of the party of Isagoras. After this Xanthippus was the leader of the people, and Miltiades of the upper class. Then came Themistocles and Aristides, and after them Ephialtes as leader of the people, and Cimon son of Miltiades of the wealthier class. Pericles followed as leader of the people, and Thucydides, who was connected by marriage with Cimon, of the opposition. After the death of Pericles, Nicias, who subsequently fell in Sicily, appeared as leader of the aristocracy, and Cleon son of Cleaenetus of the people. The latter seems, more than any one else, to have been the cause of the corruption of the democracy by his wild undertakings; and he was the first to use unseemly shouting and coarse abuse on the Bema, and to harangue the people with his cloak girt up short about him, whereas all his predecessors had spoken decently and in order. These were succeeded by Theramenes son of Hagnon as leader of the one party, and the lyre-maker Cleophon of the people. It was Cleophon who first granted the two-obol donation for the theatrical performances, and for some time it continued to be given; but then Callicrates of Paeania ousted him by promising to add a third obol to the sum. Both of these persons were subsequently condemned to death; for the people, even if they are deceived for a time, in the end generally come to detest those who have beguiled them into any unworthy action. After Cleophon the popular leadership was occupied successively by the men who chose to talk the biggest and pander the most to the tastes of the majority, with their eyes fixed only on the interests of the moment. The best statesmen at Athens, after those of early times, seem to have been Nicias, Thucydides, and Theramenes. As to Nicias and Thucydides, nearly every one agrees that they were not merely men of birth and character, but also statesmen, and that they ruled the state with paternal care. On the merits of Theramenes opinion is divided, because it so happened that in his time public affairs were in a very stormy state. But those who give their opinion deliberately find him, not, as his critics falsely assert, overthrowing every kind of constitution, but supporting every kind so long as it did not transgress laws; thus showing that he was able, as every good citizen should be, to live under any form of constitution, while he refused to countenance illegality and was its constant enemy. Part 29 So long as the fortune of the war continued even, the Athenians preserved the democracy; but after the disaster in Sicily, when the Lacedaemonians had gained the upper hand through their alliance with the king of Persia, they were compelled to abolish the democracy and establish in its place the constitution of the Four Hundred. The speech recommending this course before the vote was made by Melobius, and the motion was proposed by Pythodorus of Anaphlystus; but the real argument which persuaded the majority was the belief that the king of Persia was more likely to form an alliance with them if the constitution were on an oligarchical basis. The motion of Pythodorus was to the following effect. The popular Assembly was to elect twenty persons, over forty years of age, who, in conjunction with the existing ten members of the Committee of Public Safety, after taking an oath that they would frame such measures as they thought best for the state, should then prepare proposals for the public safety. In addition, any other person might make proposals, so that of all the schemes before them the people might choose the best. Cleitophon concurred with the motion of Pythodorus, but moved that the committee should also investigate the ancient laws enacted by Cleisthenes when he created the democracy, in order that they might have these too before them and so be in a position to decide wisely; his suggestion being that the constitution of Cleisthenes was not really democratic, but closely akin to that of Solon. When the committee was elected, their first proposal was that the Prytanes should be compelled to put to the vote any motion that was offered on behalf of the public safety. Next they abolished all indictments for illegal proposals, all impeachments and pubic prosecutions, in order that every Athenian should be free to give his counsel on the situation, if he chose; and they decreed that if any person imposed a fine on any other for his acts in this respect, or prosecuted him or summoned him before the courts, he should, on an information being laid against him, be summarily arrested and brought before the generals, who should deliver him to the Eleven to be put to death. After these preliminary measures, they drew up the constitution in the following manner. The revenues of the state were not to be spent on any purpose except the war. All magistrates should serve without remuneration for the period of the war, except the nine Archons and the Prytanes for the time being, who should each receive three obols a day. The whole of the rest of the administration was to be committed, for the period of the war, to those Athenians who were most capable of serving the state personally or pecuniarily, to the number of not less than five thousand. This body was to have full powers, to the extent even of making treaties with whomsoever they willed; and ten representatives, over forty years of age, were to be elected from each tribe to draw up the list of the Five Thousand, after taking an oath on a full and perfect sacrifice. Part 30 These were the recommendations of the committee; and when they had been ratified the Five Thousand elected from their own number a hundred commissioners to draw up the constitution. They, on their appointment, drew up and produced the following recommendations. There should be a Council, holding office for a year, consisting of men over thirty years of age, serving without pay. To this body should belong the Generals, the nine Archons, the Amphictyonic Registrar (Hieromnemon), the Taxiarchs, the Hipparchs, the Phylarch, the commanders of garrisons, the Treasurers of Athena and the other gods, ten in number, the Hellenic Treasurers (Hellenotamiae), the Treasurers of the other non-sacred moneys, to the number of twenty, the ten Commissioners of Sacrifices (Hieropoei), and the ten Superintendents of the mysteries. All these were to be appointed by the Council from a larger number of selected candidates, chosen from its members for the time being. The other offices were all to be filled by lot, and not from the members of the Council. The Hellenic Treasurers who actually administered the funds should not sit with the Council. As regards the future, four Councils were to be created, of men of the age already mentioned, and one of these was to be chosen by lot to take office at once, while the others were to receive it in turn, in the order decided by the lot. For this purpose the hundred commissioners were to distribute themselves and all the rest as equally as possible into four parts, and cast lots for precedence, and the selected body should hold office for a year. They were to administer that office as seemed to them best, both with reference to the safe custody and due expenditure of the finances, and generally with regard to all other matters to the best of their ability. If they desired to take a larger number of persons into counsel, each member might call in one assistant of his own choice, subject to the same qualification of age. The Council was to sit once every five days, unless there was any special need for more frequent sittings. The casting of the lot for the Council was to be held by the nine Archons; votes on divisions were to be counted by five tellers chosen by lot from the members of the Council, and of these one was to be selected by lot every day to act as president. These five persons were to cast lots for precedence between the parties wishing to appear before the Council, giving the first place to sacred matters, the second to heralds, the third to embassies, and the fourth to all other subjects; but matters concerning the war might be dealt with, on the motion of the generals, whenever there was need, without balloting. Any member of the Council who did not enter the Council-house at the time named should be fined a drachma for each day, unless he was away on leave of absence from the Council. Part 31 Such was the constitution which they drew up for the time to come, but for the immediate present they devised the following scheme. There should be a Council of Four Hundred, as in the ancient constitution, forty from each tribe, chosen out of candidates of more than thirty years of age, selected by the members of the tribes. This Council should appoint the magistrates and draw up the form of oath which they were to take; and in all that concerned the laws, in the examination of official accounts, and in other matters generally, they might act according to their discretion. They must, however, observe the laws that might be enacted with reference to the constitution of the state, and had no power to alter them nor to pass others. The generals should be provisionally elected from the whole body of the Five Thousand, but so soon as the Council came into existence it was to hold an examination of military equipments, and thereon elect ten persons, together with a secretary, and the persons thus elected should hold office during the coming year with full powers, and should have the right, whenever they desired it, of joining in the deliberations of the Council. The Five thousand was also to elect a single Hipparch and ten Phylarchs; but for the future the Council was to elect these officers according to the regulations above laid down. No office, except those of member of the Council and of general, might be held more than once, either by the first occupants or by their successors. With reference to the future distribution of the Four Hundred into the four successive sections, the hundred commissioners must divide them whenever the time comes for the citizens to join in the Council along with the rest. Part 32 The hundred commissioners appointed by the Five Thousand drew up the constitution as just stated; and after it had been ratified by the people, under the presidency of Aristomachus, the existing Council, that of the year of Callias, was dissolved before it had completed its term of office. It was dissolved on the fourteenth day of the month Thargelion, and the Four Hundred entered into office on the twenty-first; whereas the regular Council, elected by lot, ought to have entered into office on the fourteenth of Scirophorion. Thus was the oligarchy established, in the archonship of Callias, just about a hundred years after the expulsion of the tyrants. The chief promoters of the revolution were Pisander, Antiphon, and Theramenes, all of them men of good birth and with high reputations for ability and judgement. When, however, this constitution had been established, the Five Thousand were only nominally selected, and the Four Hundred, together with the ten officers on whom full powers had been conferred, occupied the Council-house and really administered the government. They began by sending ambassadors to the Lacedaemonians proposing a cessation of the war on the basis of the existing position; but as the Lacedaemonians refused to listen to them unless they would also abandon the command of the sea, they broke off the negotiations. Part 33 For about four months the constitution of the Four Hundred lasted, and Mnasilochus held office as Archon of their nomination for two months of the year of Theopompus, who was Archon for the remaining ten. On the loss of the naval battle of Eretria, however, and the revolt of the whole of Euboea except Oreum, the indignation of the people was greater than at any of the earlier disasters, since they drew far more supplies at this time from Euboea than from Attica itself. Accordingly they deposed the Four Hundred and committed the management of affairs to the Five Thousand, consisting of persons possessing a military equipment. At the same time they voted that pay should not be given for any public office. The persons chiefly responsible for the revolution were Aristocrates and Theramenes, who disapproved of the action of the Four Hundred in retaining the direction of affairs entirely in their own hands, and referring nothing to the Five Thousand. During this period the constitution of the state seems to have been admirable, since it was a time of war and the franchise was in the hands of those who possessed a military equipment. Part 34 The people, however, in a very short time deprived the Five Thousand of their monopoly of the government. Then, six years after the overthrow of the Four Hundred, in the archonship of Callias of Angele, the battle of Arginusae took place, of which the results were, first, that the ten generals who had gained the victory were all condemned by a single decision, owing to the people being led astray by persons who aroused their indignation; though, as a matter of fact, some of the generals had actually taken no part in the battle, and others were themselves picked up by other vessels. Secondly, when the Lacedaemonians proposed to evacuate Decelea and make peace on the basis of the existing position, although some of the Athenians supported this proposal, the majority refused to listen to them. In this they were led astray by Cleophon, who appeared in the Assembly drunk and wearing his breastplate, and prevented peace being made, declaring that he would never accept peace unless the Lacedaemonians abandoned their claims on all the cities allied with them. They mismanaged their opportunity then, and in a very short time they learnt their mistake. The next year, in the archonship of Alexias, they suffered the disaster of Aegospotami, the consequence of which was that Lysander became master of the city, and set up the Thirty as its governors. He did so in the following manner. One of the terms of peace stipulated that the state should be governed according to 'the ancient constitution'. Accordingly the popular party tried to preserve the democracy, while that part of the upper class which belonged to the political clubs, together with the exiles who had returned since the peace, aimed at an oligarchy, and those who were not members of any club, though in other respects they considered themselves as good as any other citizens, were anxious to restore the ancient constitution. The latter class included Archinus, Anytus, Cleitophon, Phormisius, and many others, but their most prominent leader was Theramenes. Lysander, however, threw his influence on the side of the oligarchical party, and the popular Assembly was compelled by sheer intimidation to pass a vote establishing the oligarchy. The motion to this effect was proposed by Dracontides of Aphidna. Part 35 In this way were the Thirty established in power, in the archonship of Pythodorus. As soon, however, as they were masters of the city, they ignored all the resolutions which had been passed relating to the organization of the constitution, but after appointing a Council of Five Hundred and the other magistrates out of a thousand selected candidates, and associating with themselves ten Archons in Piraeus, eleven superintendents of the prison, and three hundred 'lash-bearers' as attendants, with the help of these they kept the city under their own control. At first, indeed, they behaved with moderation towards the citizens and pretended to administer the state according to the ancient constitution. In pursuance of this policy they took down from the hill of Areopagus the laws of Ephialtes and Archestratus relating to the Areopagite Council; they also repealed such of the statutes of Solon as were obscure, and abolished the supreme power of the law-courts. In this they claimed to be restoring the constitution and freeing it from obscurities; as, for instance, by making the testator free once for all to leave his property as he pleased, and abolishing the existing limitations in cases of insanity, old age, and undue female influence, in order that no opening might be left for professional accusers. In other matters also their conduct was similar. At first, then, they acted on these lines, and they destroyed the professional accusers and those mischievous and evil-minded persons who, to the great detriment of the democracy, had attached themselves to it in order to curry favour with it. With all of this the city was much pleased, and thought that the Thirty were doing it with the best of motives. But so soon as they had got a firmer hold on the city, they spared no class of citizens, but put to death any persons who were eminent for wealth or birth or character. Herein they aimed at removing all whom they had reason to fear, while they also wished to lay hands on their possessions; and in a short time they put to death not less than fifteen hundred persons. Part 36 Theramenes, however, seeing the city thus falling into ruin, was displeased with their proceedings, and counselled them to cease such unprincipled conduct and let the better classes have a share in the government. At first they resisted his advice, but when his proposals came to be known abroad, and the masses began to associate themselves with him, they were seized with alarm lest he should make himself the leader of the people and destroy their despotic power. Accordingly they drew up a list of three thousand citizens, to whom they announced that they would give a share in the constitution. Theramenes, however, criticized this scheme also, first on the ground that, while proposing to give all respectable citizens a share in the constitution, they were actually giving it only to three thousand persons, as though all merit were confined within that number; and secondly because they were doing two inconsistent things, since they made the government rest on the basis of force, and yet made the governors inferior in strength to the governed. However, they took no notice of his criticisms, and for a long time put off the publication of the list of the Three Thousand and kept to themselves the names of those who had been placed upon it; and every time they did decide to publish it they proceeded to strike out some of those who had been included in it, and insert others who had been omitted. Part 37 Now when winter had set in, Thrasybulus and the exiles occupied Phyle, and the force which the Thirty led out to attack them met with a reverse. Thereupon the Thirty decided to disarm the bulk of the population and to get rid of Theramenes; which they did in the following way. They introduced two laws into the Council, which they commanded it to pass; the first of them gave the Thirty absolute power to put to death any citizen who was not included in the list of the Three Thousand, while the second disqualified all persons from participation in the franchise who should have assisted in the demolition of the fort of Eetioneia, or have acted in any way against the Four Hundred who had organized the previous oligarchy. Theramenes had done both, and accordingly, when these laws were ratified, he became excluded from the franchise and the Thirty had full power to put him to death. Theramenes having been thus removed, they disarmed all the people except the Three Thousand, and in every respect showed a great advance in cruelty and crime. They also sent ambassadors to Lacedaemonian to blacken the character of Theramenes and to ask for help; and the Lacedaemonians, in answer to their appeal, sent Callibius as military governor with about seven hundred troops, who came and occupied the Acropolis. Part 38 These events were followed by the occupation of Munichia by the exiles from Phyle, and their victory over the Thirty and their partisans. After the fight the party of the city retreated, and next day they held a meeting in the marketplace and deposed the Thirty, and elected ten citizens with full powers to bring the war to a termination. When, however, the Ten had taken over the government they did nothing towards the object for which they were elected, but sent envoys to Lacedaemonian to ask for help and to borrow money. Further, finding that the citizens who possessed the franchise were displeased at their proceedings, they were afraid lest they should be deposed, and consequently, in order to strike terror into them (in which design they succeeded), they arrested Demaretus, one of the most eminent citizens, and put him to death. This gave them a firm hold on the government, and they also had the support of Callibius and his Peloponnesians, together with several of the Knights; for some of the members of this class were the most zealous among the citizens to prevent the return of the exiles from Phyle. When, however, the party in Piraeus and Munichia began to gain the upper hand in the war, through the defection of the whole populace to them, the party in the city deposed the original Ten, and elected another Ten, consisting of men of the highest repute. Under their administration, and with their active and zealous cooperation, the treaty of reconciliation was made and the populace returned to the city. The most prominent members of this board were Rhinon of Paeania and Phayllus of Acherdus, who, even before the arrival of Pausanias, opened negotiations with the party in Piraeus, and after his arrival seconded his efforts to bring about the return of the exiles. For it was Pausanias, the king of the Lacedaemonians, who brought the peace and reconciliation to a fulfillment, in conjunction with the ten commissioners of arbitration who arrived later from Lacedaemonian, at his own earnest request. Rhinon and his colleagues received a vote of thanks for the goodwill shown by them to the people, and though they received their charge under an oligarchy and handed in their accounts under a democracy, no one, either of the party that had stayed in the city or of the exiles that had returned from the Piraeus, brought any complaint against them. On the contrary, Rhinon was immediately elected general on account of his conduct in this office. Part 39 This reconciliation was effected in the archonship of Eucleides, on the following terms. All persons who, having remained in the city during the troubles, were now anxious to leave it, were to be free to settle at Eleusis, retaining their civil rights and possessing full and independent powers of self-government, and with the free enjoyment of their own personal property. The temple at Eleusis should be common ground for both parties, and should be under the superintendence of the Ceryces, and the Eumolpidae, according to primitive custom. The settlers at Eleusis should not be allowed to enter Athens, nor the people of Athens to enter Eleusis, except at the season of the mysteries, when both parties should be free from these restrictions. The secessionists should pay their share to the fund for the common defence out of their revenues, just like all the other Athenians. If any of the seceding party wished to take a house in Eleusis, the people would help them to obtain the consent of the owner; but if they could not come to terms, they should appoint three valuers on either side, and the owner should receive whatever price they should appoint. Of the inhabitants of Eleusis, those whom the secessionists wished to remain should be allowed to do so. The list of those who desired to secede should be made up within ten days after the taking of the oaths in the case of persons already in the country, and their actual departure should take place within twenty days; persons at present out of the country should have the same terms allowed to them after their return. No one who settled at Eleusis should be capable of holding any office in Athens until he should again register himself on the roll as a resident in the city. Trials for homicide, including all cases in which one party had either killed or wounded another, should be conducted according to ancestral practice. There should be a general amnesty concerning past events towards all persons except the Thirty, the Ten, the Eleven, and the magistrates in Piraeus; and these too should be included if they should submit their accounts in the usual way. Such accounts should be given by the magistrates in Piraeus before a court of citizens rated in Piraeus, and by the magistrates in the city before a court of those rated in the city. On these terms those who wished to do so might secede. Each party was to repay separately the money which it had borrowed for the war. Part 40 When the reconciliation had taken place on these terms, those who had fought on the side of the Thirty felt considerable apprehensions, and a large number intended to secede. But as they put off entering their names till the last moment, as people will do, Archinus, observing their numbers, and being anxious to retain them as citizens, cut off the remaining days during which the list should have remained open; and in this way many persons were compelled to remain, though they did so very unwillingly until they recovered confidence. This is one point in which Archinus appears to have acted in a most statesmanlike manner, and another was his subsequent prosecution of Thrasybulus on the charge of illegality, for a motion by which he proposed to confer the franchise on all who had taken part in the return from Piraeus, although some of them were notoriously slaves. And yet a third such action was when one of the returned exiles began to violate the amnesty, whereupon Archinus haled him to the Council and persuaded them to execute him without trial, telling them that now they would have to show whether they wished to preserve the democracy and abide by the oaths they had taken; for if they let this man escape they would encourage others to imitate him, while if they executed him they would make an example for all to learn by. And this was exactly what happened; for after this man had been put to death no one ever again broke the amnesty. On the contrary, the Athenians seem, both in public and in private, to have behaved in the most unprecedentedly admirable and public-spirited way with reference to the preceding troubles. Not only did they blot out all memory of former offences, but they even repaid to the Lacedaemonians out of the public purse the money which the Thirty had borrowed for the war, although the treaty required each party, the party of the city and the party of Piraeus, to pay its own debts separately. This they did because they thought it was a necessary first step in the direction of restoring harmony; but in other states, so far from the democratic parties making advances from their own possessions, they are rather in the habit of making a general redistribution of the land. A final reconciliation was made with the secessionists at Eleusis two years after the secession, in the archonship of Xenaenetus. Part 41 This, however, took place at a later date; at the time of which we are speaking the people, having secured the control of the state, established the constitution which exists at the present day. Pythodorus was Archon at the time, but the democracy seems to have assumed the supreme power with perfect justice, since it had effected its own return by its own exertions. This was the eleventh change which had taken place in the constitution of Athens. The first modification of the primaeval condition of things was when Ion and his companions brought the people together into a community, for then the people was first divided into the four tribes, and the tribe-kings were created. Next, and first after this, having now some semblance of a constitution, was that which took place in the reign of Theseus, consisting in a slight deviation from absolute monarchy. After this came the constitution formed under Draco, when the first code of laws was drawn up. The third was that which followed the civil war, in the time of Solon; from this the democracy took its rise. The fourth was the tyranny of Pisistratus; the fifth the constitution of Cleisthenes, after the overthrow of the tyrants, of a more democratic character than that of Solon. The sixth was that which followed on the Persian wars, when the Council of Areopagus had the direction of the state. The seventh, succeeding this, was the constitution which Aristides sketched out, and which Ephialtes brought to completion by overthrowing the Areopagite Council; under this the nation, misled by the demagogues, made the most serious mistakes in the interest of its maritime empire. The eighth was the establishment of the Four Hundred, followed by the ninth, the restored democracy. The tenth was the tyranny of the Thirty and the Ten. The eleventh was that which followed the return from Phyle and Piraeus; and this has continued from that day to this, with continual accretions of power to the masses. The democracy has made itself master of everything and administers everything by its votes in the Assembly and by the law-courts, in which it holds the supreme power. Even the jurisdiction of the Council has passed into the hands of the people at large; and this appears to be a judicious change, since small bodies are more open to corruption, whether by actual money or influence, than large ones. At first they refused to allow payment for attendance at the Assembly; but the result was that people did not attend. Consequently, after the Prytanes had tried many devices in vain in order to induce the populace to come and ratify the votes, Agyrrhius, in the first instance, made a provision of one obol a day, which Heracleides of Clazomenae, nicknamed 'the king', increased to two obols, and Agyrrhius again to three. Part 42 The present state of the constitution is as follows. The franchise is open to all who are of citizen birth by both parents. They are enrolled among the demesmen at the age of eighteen. On the occasion of their enrollment the demesmen give their votes on oath, first whether the candidates appear to be of the age prescribed by the law (if not, they are dismissed back into the ranks of the boys), and secondly whether the candidate is free born and of such parentage as the laws require. Then if they decide that he is not a free man, he appeals to the law-courts, and the demesmen appoint five of their own number to act as accusers; if the court decides that he has no right to be enrolled, he is sold by the state as a slave, but if he wins his case he has a right to be enrolled among the demesmen without further question. After this the Council examines those who have been enrolled, and if it comes to the conclusion that any of them is less than eighteen years of age, it fines the demesmen who enrolled him. When the youths (Ephebi) have passed this examination, their fathers meet by their tribes, and appoint on oath three of their fellow tribesmen, over forty years of age, who, in their opinion, are the best and most suitable persons to have charge of the youths; and of these the Assembly elects one from each tribe as guardian, together with a director, chosen from the general body of Athenians, to control the while. Under the charge of these persons the youths first of all make the circuit of the temples; then they proceed to Piraeus, and some of them garrison Munichia and some the south shore. The Assembly also elects two trainers, with subordinate instructors, who teach them to fight in heavy armour, to use the bow and javelin, and to discharge a catapult. The guardians receive from the state a drachma apiece for their keep, and the youths four obols apiece. Each guardian receives the allowance for all the members of his tribe and buys the necessary provisions for the common stock (they mess together by tribes), and generally superintends everything. In this way they spend the first year. The next year, after giving a public display of their military evolutions, on the occasion when the Assembly meets in the theatre, they receive a shield and spear from the state; after which they patrol the country and spend their time in the forts. For these two years they are on garrison duty, and wear the military cloak, and during this time they are exempt from all taxes. They also can neither bring an action at law, nor have one brought against them, in order that they may have no excuse for requiring leave of absence; though exception is made in cases of actions concerning inheritances and wards of state, or of any sacrificial ceremony connected with the family. When the two years have elapsed they thereupon take their position among the other citizens. Such is the manner of the enrollment of the citizens and the training of the youths. Part 43 All the magistrates that are concerned with the ordinary routine of administration are elected by lot, except the Military Treasurer, the Commissioners of the Theoric fund, and the Superintendent of Springs. These are elected by vote, and hold office from one Panathenaic festival to the next. All military officers are also elected by vote. The Council of Five Hundred is elected by lot, fifty from each tribe. Each tribe holds the office of Prytanes in turn, the order being determined by lot; the first four serve for thirty-six days each, the last six for thirty-five, since the reckoning is by lunar years. The Prytanes for the time being, in the first place, mess together in the Tholus, and receive a sum of money from the state for their maintenance; and, secondly, they convene the meetings of the Council and the Assembly. The Council they convene every day, unless it is a holiday, the Assembly four times in each prytany. It is also their duty to draw up the programme of the business of the Council and to decide what subjects are to be dealt with on each particular day, and where the sitting is to be held. They also draw up the programme for the meetings of the Assembly. One of these in each prytany is called the 'sovereign' Assembly; in this the people have to ratify the continuance of the magistrates in office, if they are performing their duties properly, and to consider the supply of corn and the defence of the country. On this day, too, impeachments are introduced by those who wish to do so, the lists of property confiscated by the state are read, and also applications for inheritances and wards of state, so that nothing may pass unclaimed without the cognizance of any person concerned. In the sixth prytany, in addition to the business already stated, the question is put to the vote whether it is desirable to hold a vote of ostracism or not; and complaints against professional accusers, whether Athenian or aliens domiciled in Athens, are received, to the number of not more than three of either class, together with cases in which an individual has made some promise to the people and has not performed it. Another Assembly in each prytany is assigned to the hearing of petitions, and at this meeting any one is free, on depositing the petitioner's olive-branch, to speak to the people concerning any matter, public or private. The two remaining meetings are devoted to all other subjects, and the laws require them to deal with three questions connected with religion, three connected with heralds and embassies, and three on secular subjects. Sometimes questions are brought forward without a preliminary vote of the Assembly to take them into consideration. Heralds and envoys appear first before the Prytanes, and the bearers of dispatches also deliver them to the same officials. Part 44 There is a single President of the Prytanes, elected by lot, who presides for a night and a day; he may not hold the office for more than that time, nor may the same individual hold it twice. He keeps the keys of the sanctuaries in which the treasures and public records of the state are preserved, and also the public seal; and he is bound to remain in the Tholus, together with one-third of the Prytanes, named by himself. Whenever the Prytanes convene a meeting of the Council or Assembly, he appoints by lot nine Proedri, one from each tribe except that which holds the office of Prytanes for the time being; and out of these nine he similarly appoints one as President, and hands over the programme for the meeting to them. They take it and see to the preservation of order, put forward the various subjects which are to be considered, decide the results of the votings, and direct the proceedings generally. They also have power to dismiss the meeting. No one may act as President more than once in the year, but he may be a Proedrus once in each prytany. Elections to the offices of General and Hipparch and all other military commands are held in the Assembly, in such manner as the people decide; they are held after the sixth prytany by the first board of Prytanes in whose term of office the omens are favourable. There has, however, to be a preliminary consideration by the Council in this case also. Part 45 In former times the Council had full powers to inflict fines and imprisonment and death; but when it had consigned Lysimachus to the executioner, and he was sitting in the immediate expectation of death, Eumelides of Alopece rescued him from its hands, maintaining that no citizen ought to be put to death except on the decision of a court of law. Accordingly a trial was held in a law-court, and Lysimachus was acquitted, receiving henceforth the nickname of 'the man from the drum-head'; and the people deprived the Council thenceforward of the power to inflict death or imprisonment or fine, passing a law that if the Council condemn any person for an offence or inflict a fine, the Thesmothetae shall bring the sentence or fine before the law-court, and the decision of the jurors shall be the final judgement in the matter. The Council passes judgement on nearly all magistrates, especially those who have the control of money; its judgement, however, is not final, but is subject to an appeal to the lawcourts. Private individuals, also, may lay an information against any magistrate they please for not obeying the laws, but here too there is an appeal to the law-courts if the Council declare the charge proved. The Council also examines those who are to be its members for the ensuing year, and likewise the nine Archons. Formerly the Council had full power to reject candidates for office as unsuitable, but now they have an appeal to the law-courts. In all these matters, therefore, the Council has no final jurisdiction. It takes, however, preliminary cognizance of all matters brought before the Assembly, and the Assembly cannot vote on any question unless it has first been considered by the Council and placed on the programme by the Prytanes; since a person who carries a motion in the Assembly is liable to an action for illegal proposal on these grounds. Part 46 The Council also superintends the triremes that are already in existence, with their tackle and sheds, and builds new triremes or quadriremes, whichever the Assembly votes, with tackle and sheds to match. The Assembly appoints master-builders for the ships by vote; and if they do not hand them over completed to the next Council, the old Council cannot receive the customary donation--that being normally given to it during its successor's term of office. For the building of the triremes it appoints ten commissioners, chosen from its own members. The Council also inspects all public buildings, and if it is of opinion that the state is being defrauded, it reports the culprit to the Assembly, and on condemnation hands him over to the law-courts. Part 47 The Council also co-operates with other magistrates in most of their duties. First there are the treasurers of Athena, ten in number, elected by lot, one from each tribe. According to the law of Solon--which is still in force--they must be Pentacosiomedimni, but in point of fact the person on whom the lot falls holds the office even though he be quite a poor man. These officers take over charge of the statue of Athena, the figures of Victory, and all the other ornaments of the temple, together with the money, in the presence of the Council. Then there are the Commissioners for Public Contracts (Poletae), ten in number, one chosen by lot from each tribe, who farm out the public contracts. They lease the mines and taxes, in conjunction with the Military Treasurer and the Commissioners of the Theoric fund, in the presence of the Council, and grant, to the persons indicated by the vote of the Council, the mines which are let out by the state, including both the workable ones, which are let for three years, and those which are let under special agreements years. They also sell, in the presence of the Council, the property of those who have gone into exile from the court of the Areopagus, and of others whose goods have been confiscated, and the nine Archons ratify the contracts. They also hand over to the Council lists of the taxes which are farmed out for the year, entering on whitened tablets the name of the lessee and the amount paid. They make separate lists, first of those who have to pay their instalments in each prytany, on ten several tablets, next of those who pay thrice in the year, with a separate tablet for each instalment, and finally of those who pay in the ninth prytany. They also draw up a list of farms and dwellings which have been confiscated and sold by order of the courts; for these too come within their province. In the case of dwellings the value must be paid up in five years, and in that of farms, in ten. The instalments are paid in the ninth prytany. Further, the King-archon brings before the Council the leases of the sacred enclosures, written on whitened tablets. These too are leased for ten years, and the instalments are paid in the prytany; consequently it is in this prytany that the greatest amount of money is collected. The tablets containing the lists of the instalments are carried into the Council, and the public clerk takes charge of them. Whenever a payment of instalments is to be made he takes from the pigeon-holes the precise list of the sums which are to be paid and struck off on that day, and delivers it to the Receivers-General. The rest are kept apart, in order that no sum may be struck off before it is paid. Part 48 There are ten Receivers-General (Apodectae), elected by lot, one from each tribe. These officers receive the tablets, and strike off the instalments as they are paid, in the presence of the Council in the Council-chamber, and give the tablets back to the public clerk. If any one fails to pay his instalment, a note is made of it on the tablet; and he is bound to pay double the amount of the deficiency, or, in default, to be imprisoned. The Council has full power by the laws to exact these payments and to inflict this imprisonment. They receive all the instalments, therefore, on one day, and portion the money out among the magistrates; and on the next day they bring up the report of the apportionment, written on a wooden notice-board, and read it out in the Council-chamber, after which they ask publicly in the Council whether any one knows of any malpractice in reference to the apportionment, on the part of either a magistrate or a private individual, and if any one is charged with malpractice they take a vote on it. The Council also elects ten Auditors (Logistae) by lot from its own members, to audit the accounts of the magistrates for each prytany. They also elect one Examiner of Accounts (Euthunus) by lot from each tribe, with two assessors (Paredri) for each examiner, whose duty it is to sit at the ordinary market hours, each opposite the statue of the eponymous hero of his tribe; and if any one wishes to prefer a charge, on either public or private grounds, against any magistrate who has passed his audit before the law-courts, within three days of his having so passed, he enters on a whitened tablet his own name and that of the magistrate prosecuted, together with the malpractice that is alleged against him. He also appends his claim for a penalty of such amount as seems to him fitting, and gives in the record to the Examiner. The latter takes it, and if after reading it he considers it proved he hands it over, if a private case, to the local justices who introduce cases for the tribe concerned, while if it is a public case he enters it on the register of the Thesmothetae. Then, if the Thesmothetae accept it, they bring the accounts of this magistrate once more before the law-court, and the decision of the jury stands as the final judgement. Part 49 The Council also inspects the horses belonging to the state. If a man who has a good horse is found to keep it in bad condition, he is mulcted in his allowance of corn; while those which cannot keep up or which shy and will not stand steady, it brands with a wheel on the jaw, and the horse so marked is disqualified for service. It also inspects those who appear to be fit for service as scouts, and any one whom it rejects is deprived of his horse. It also examines the infantry who serve among the cavalry, and any one whom it rejects ceases to receive his pay. The roll of the cavalry is drawn up by the Commissioners of Enrolment (Catalogeis), ten in number, elected by the Assembly by open vote. They hand over to the Hipparchs and Phylarchs the list of those whom they have enrolled, and these officers take it and bring it up before the Council, and there open the sealed tablet containing the names of the cavalry. If any of those who have been on the roll previously make affidavit that they are physically incapable of cavalry service, they strike them out; then they call up the persons newly enrolled, and if any one makes affidavit that he is either physically or pecuniarily incapable of cavalry service they dismiss him, but if no such affidavit is made the Council vote whether the individual in question is suitable for the purpose or not. If they vote in the affirmative his name is entered on the tablet; if not, he is dismissed with the others. Formerly the Council used to decide on the plans for public buildings and the contract for making the robe of Athena; but now this work is done by a jury in the law-courts appointed by lot, since the Council was considered to have shown favouritism in its decisions. The Council also shares with the Military Treasurer the superintendence of the manufacture of the images of Victory and the prizes at the Panathenaic festival. The Council also examines infirm paupers; for there is a law which provides that persons possessing less than three minas, who are so crippled as to be unable to do any work, are, after examination by the Council, to receive two obols a day from the state for their support. A treasurer is appointed by lot to attend to them. The Council also, speaking broadly, cooperates in most of the duties of all the other magistrates; and this ends the list of the functions of that body. Part 50 There are ten Commissioners for Repairs of Temples, elected by lot, who receive a sum of thirty minas from the Receivers-General, and therewith carry out the most necessary repairs in the temples. There are also ten City Commissioners (Astynomi), of whom five hold office in Piraeus and five in the city. Their duty is to see that female flute- and harp- and lute-players are not hired at more than two drachmas, and if more than one person is anxious to hire the same girl, they cast lots and hire her out to the person to whom the lot falls. They also provide that no collector of sewage shall shoot any of his sewage within ten stradia of the walls; they prevent people from blocking up the streets by building, or stretching barriers across them, or making drain-pipes in mid-air with a discharge into the street, or having doors which open outwards; they also remove the corpses of those who die in the streets, for which purpose they have a body of state slaves assigned to them. Part 51 Market Commissioners (Agoranomi) are elected by lot, five for Piraeus, five for the city. Their statutory duty is to see that all articles offered for sale in the market are pure and unadulterated. Commissioners of Weights and Measures (Metronomi) are elected by lot, five for the city, and five for Piraeus. They see that sellers use fair weights and measures. Formerly there were ten Corn Commissioners (Sitophylaces), elected by lot, five for Piraeus, and five for the city; but now there are twenty for the city and fifteen for Piraeus. Their duties are, first, to see that the unprepared corn in the market is offered for sale at reasonable prices, and secondly, to see that the millers sell barley meal at a price proportionate to that of barley, and that the bakers sell their loaves at a price proportionate to that of wheat, and of such weight as the Commissioners may appoint; for the law requires them to fix the standard weight. There are ten Superintendents of the Mart, elected by lot, whose duty is to superintend the Mart, and to compel merchants to bring up into the city two-thirds of the corn which is brought by sea to the Corn Mart. Part 52 The Eleven also are appointed by lot to take care of the prisoners in the state gaol. Thieves, kidnappers, and pickpockets are brought to them, and if they plead guilty they are executed, but if they deny the charge the Eleven bring the case before the law-courts; if the prisoners are acquitted, they release them, but if not, they then execute them. They also bring up before the law-courts the list of farms and houses claimed as state-property; and if it is decided that they are so, they deliver them to the Commissioners for Public Contracts. The Eleven also bring up informations laid against magistrates alleged to be disqualified; this function comes within their province, but some such cases are brought up by the Thesmothetae. There are also five Introducers of Cases (Eisagogeis), elected by lot, one for each pair of tribes, who bring up the 'monthly' cases to the law-courts. 'Monthly' cases are these: refusal to pay up a dowry where a party is bound to do so, refusal to pay interest on money borrowed at 12 per cent., or where a man desirous of setting up business in the market has borrowed from another man capital to start with; also cases of slander, cases arising out of friendly loans or partnerships, and cases concerned with slaves, cattle, and the office of trierarch, or with banks. These are brought up as 'monthly' cases and are introduced by these officers; but the Receivers-General perform the same function in cases for or against the farmers of taxes. Those in which the sum concerned is not more than ten drachmas they can decide summarily, but all above that amount they bring into the law-courts as 'monthly' cases. Part 53 The Forty are also elected by lot, four from each tribe, before whom suitors bring all other cases. Formerly they were thirty in number, and they went on circuit through the demes to hear causes; but after the oligarchy of the Thirty they were increased to forty. They have full powers to decide cases in which the amount at issue does not exceed ten drachmas, but anything beyond that value they hand over to the Arbitrators. The Arbitrators take up the case, and, if they cannot bring the parties to an agreement, they give a decision. If their decision satisfies both parties, and they abide by it, the case is at an end; but if either of the parties appeals to the law-courts, the Arbitrators enclose the evidence, the pleadings, and the laws quoted in the case in two urns, those of the plaintiff in the one, and those of the defendant in the other. These they seal up and, having attached to them the decision of the arbitrator, written out on a tablet, place them in the custody of the four justices whose function it is to introduce cases on behalf of the tribe of the defendant. These officers take them and bring up the case before the law-court, to a jury of two hundred and one members in cases up to the value of a thousand drachmas, or to one of four hundred and one in cases above that value. No laws or pleadings or evidence may be used except those which were adduced before the Arbitrator, and have been enclosed in the urns. The Arbitrators are persons in the sixtieth year of their age; this appears from the schedule of the Archons and the Eponymi. There are two classes of Eponymi, the ten who give their names to the tribes, and the forty-two of the years of service. The youths, on being enrolled among the citizens, were formerly registered upon whitened tablets, and the names were appended of the Archon in whose year they were enrolled, and of the Eponymus who had been in course in the preceding year; at the present day they are written on a bronze pillar, which stands in front of the Council-chamber, near the Eponymi of the tribes. Then the Forty take the last of the Eponymi of the years of service, and assign the arbitrations to the persons belonging to that year, casting lots to determine which arbitrations each shall undertake; and every one is compelled to carry through the arbitrations which the lot assigns to him. The law enacts that any one who does not serve as Arbitrator when he has arrived at the necessary age shall lose his civil rights, unless he happens to be holding some other office during that year, or to be out of the country. These are the only persons who escape the duty. Any one who suffers injustice at the hands of the Arbitrator may appeal to the whole board of Arbitrators, and if they find the magistrate guilty, the law enacts that he shall lose his civil rights. The persons thus condemned have, however, in their turn an appeal. The Eponymi are also used in reference to military expeditions; when the men of military age are despatched on service, a notice is put up stating that the men from such-and-such an Archon and Eponymus to such-and-such another Archon and Eponymus are to go on the expedition. Part 54 The following magistrates also are elected by lot: Five Commissioners of Roads (Hodopoei), who, with an assigned body of public slaves, are required to keep the roads in order: and ten Auditors, with ten assistants, to whom all persons who have held any office must give in their accounts. These are the only officers who audit the accounts of those who are subject to examination, and who bring them up for examination before the law-courts. If they detect any magistrate in embezzlement, the jury condemn him for theft, and he is obliged to repay tenfold the sum he is declared to have misappropriated. If they charge a magistrate with accepting bribes and the jury convict him, they fine him for corruption, and this sum too is repaid tenfold. Or if they convict him of unfair dealing, he is fined on that charge, and the sum assessed is paid without increase, if payment is made before the ninth prytany, but otherwise it is doubled. A tenfold fine is not doubled. The Clerk of the prytany, as he is called, is also elected by lot. He has the charge of all public documents, and keeps the resolutions which are passed by the Assembly, and checks the transcripts of all other official papers and attends at the sessions of the Council. Formerly he was elected by open vote, and the most distinguished and trustworthy persons were elected to the post, as is known from the fact that the name of this officer is appended on the pillars recording treaties of alliance and grants of consulship and citizenship. Now, however, he is elected by lot. There is, in addition, a Clerk of the Laws, elected by lot, who attends at the sessions of the Council; and he too checks the transcript of all the laws. The Assembly also elects by open vote a clerk to read documents to it and to the Council; but he has no other duty except that of reading aloud. The Assembly also elects by lot the Commissioners of Public Worship (Hieropoei) known as the Commissioners for Sacrifices, who offer the sacrifices appointed by oracle, and, in conjunction with the seers, take the auspices whenever there is occasion. It also elects by lot ten others, known as Annual Commissioners, who offer certain sacrifices and administer all the quadrennial festivals except the Panathenaea. There are the following quadrennial festivals: first that of Delos (where there is also a sexennial festival), secondly the Brauronia, thirdly the Heracleia, fourthly the Eleusinia, and fifthly the Panathenaea; and no two of these are celebrated in the same place. To these the Hephaestia has now been added, in the archonship of Cephisophon. An Archon is also elected by lot for Salamis, and a Demarch for Piraeus. These officers celebrate the Dionysia in these two places, and appoint Choregi. In Salamis, moreover, the name of the Archon is publicly recorded. Part 55 All the foregoing magistrates are elected by lot, and their powers are those which have been stated. To pass on to the nine Archons, as they are called, the manner of their appointment from the earliest times has been described already. At the present day six Thesmothetae are elected by lot, together with their clerk, and in addition to these an Archon, a King, and a Polemarch. One is elected from each tribe. They are examined first of all by the Council of Five Hundred, with the exception of the clerk. The latter is examined only in the lawcourt, like other magistrates (for all magistrates, whether elected by lot or by open vote, are examined before entering on their offices); but the nine Archons are examined both in the Council and again in the law-court. Formerly no one could hold the office if the Council rejected him, but now there is an appeal to the law-court, which is the final authority in the matter of the examination. When they are examined, they are asked, first, 'Who is your father, and of what deme? who is your father's father? who is your mother? who is your mother's father, and of what deme?' Then the candidate is asked whether he possesses an ancestral Apollo and a household Zeus, and where their sanctuaries are; next if he possesses a family tomb, and where; then if he treats his parents well, and pays his taxes, and has served on the required military expeditions. When the examiner has put these questions, he proceeds, 'Call the witnesses to these facts'; and when the candidate has produced his witnesses, he next asks, 'Does any one wish to make any accusation against this man?' If an accuser appears, he gives the parties an opportunity of making their accusation and defence, and then puts it to the Council to pass the candidate or not, and to the law-court to give the final vote. If no one wishes to make an accusation, he proceeds at once to the vote. Formerly a single individual gave the vote, but now all the members are obliged to vote on the candidates, so that if any unprincipled candidate has managed to get rid of his accusers, it may still be possible for him to be disqualified before the law-court. When the examination has been thus completed, they proceed to the stone on which are the pieces of the victims, and on which the Arbitrators take oath before declaring their decisions, and witnesses swear to their testimony. On this stone the Archons stand, and swear to execute their office uprightly and according to the laws, and not to receive presents in respect of the performance of their duties, or, if they do, to dedicate a golden statue. When they have taken this oath they proceed to the Acropolis, and there they repeat it; after this they enter upon their office. Part 56 The Archon, the King, and the Polemarch have each two assessors, nominated by themselves. These officers are examined in the lawcourt before they begin to act, and give in accounts on each occasion of their acting. As soon as the Archon enters office, he begins by issuing a proclamation that whatever any one possessed before he entered into office, that he shall possess and hold until the end of his term. Next he assigns Choregi to the tragic poets, choosing three of the richest persons out of the whole body of Athenians. Formerly he used also to assign five Choregi to the comic poets, but now the tribes provide the Choregi for them. Then he receives the Choregi who have been appointed by the tribes for the men's and boys' choruses and the comic poets at the Dionysia, and for the men's and boys' choruses at the Thargelia (at the Dionysia there is a chorus for each tribe, but at the Thargelia one between two tribes, each tribe bearing its share in providing it); he transacts the exchanges of properties for them, and reports any excuses that are tendered, if any one says that he has already borne this burden, or that he is exempt because he has borne a similar burden and the period of his exemption has not yet expired, or that he is not of the required age; since the Choregus of a boys' chorus must be over forty years of age. He also appoints Choregi for the festival at Delos, and a chief of the mission for the thirty-oar boat which conveys the youths thither. He also superintends sacred processions, both that in honour of Asclepius, when the initiated keep house, and that of the great Dionysia--the latter in conjunction with the Superintendents of that festival. These officers, ten in number, were formerly elected by open vote in the Assembly, and used to provide for the expenses of the procession out of their private means; but now one is elected by lot from each tribe, and the state contributes a hundred minas for the expenses. The Archon also superintends the procession at the Thargelia, and that in honour of Zeus the Saviour. He also manages the contests at the Dionysia and the Thargelia. These, then, are the festivals which he superintends. The suits and indictments which come before him, and which he, after a preliminary inquiry, brings up before the lawcourts, are as follows. Injury to parents (for bringing these actions the prosecutor cannot suffer any penalty); injury to orphans (these actions lie against their guardians); injury to a ward of state (these lie against their guardians or their husbands), injury to an orphan's estate (these too lie against the guardians); mental derangement, where a party charges another with destroying his own property through unsoundness of mind; for appointment of liquidators, where a party refuses to divide property in which others have a share; for constituting a wardship; for determining between rival claims to a wardship; for granting inspection of property to which another party lays claim; for appointing oneself as guardian; and for determining disputes as to inheritances and wards of state. The Archon also has the care of orphans and wards of state, and of women who, on the death of their husbands, declare themselves to be with child; and he has power to inflict a fine on those who offend against the persons under his charge, or to bring the case before the law-courts. He also leases the houses of orphans and wards of state until they reach the age of fourteen, and takes mortgages on them; and if the guardians fail to provide the necessary food for the children under their charge, he exacts it from them. Such are the duties of the Archon. Part 57 The King in the first place superintends the mysteries, in conjunction with the Superintendents of Mysteries. The latter are elected in the Assembly by open vote, two from the general body of Athenians, one from the Eumolpidae, and one from the Ceryces. Next, he superintends the Lenaean Dionysia, which consists of a procession and a contest. The procession is ordered by the King and the Superintendents in conjunction; but the contest is managed by the King alone. He also manages all the contests of the torch-race; and to speak broadly, he administers all the ancestral sacrifices. Indictments for impiety come before him, or any disputes between parties concerning priestly rites; and he also determines all controversies concerning sacred rites for the ancient families and the priests. All actions for homicide come before him, and it is he that makes the proclamation requiring polluted persons to keep away from sacred ceremonies. Actions for homicide and wounding are heard, if the homicide or wounding be willful, in the Areopagus; so also in cases of killing by poison, and of arson. These are the only cases heard by that Council. Cases of unintentional homicide, or of intent to kill, or of killing a slave or a resident alien or a foreigner, are heard by the court of Palladium. When the homicide is acknowledged, but legal justification is pleaded, as when a man takes an adulterer in the act, or kills another by mistake in battle, or in an athletic contest, the prisoner is tried in the court of Delphinium. If a man who is in banishment for a homicide which admits of reconciliation incurs a further charge of killing or wounding, he is tried in Phreatto, and he makes his defence from a boat moored near the shore. All these cases, except those which are heard in the Areopagus, are tried by the Ephetae on whom the lot falls. The King introduces them, and the hearing is held within sacred precincts and in the open air. Whenever the King hears a case he takes off his crown. The person who is charged with homicide is at all other times excluded from the temples, nor is it even lawful for him to enter the market-place; but on the occasion of his trial he enters the temple and makes his defence. If the actual offender is unknown, the writ runs against 'the doer of the deed'. The King and the tribe-kings also hear the cases in which the guilt rests on inanimate objects and the lower animal. Part 58 The Polemarch performs the sacrifices to Artemis the huntress and to Enyalius, and arranges the contest at the funeral of those who have fallen in war, and makes offerings to the memory of Harmodius and Aristogeiton. Only private actions come before him, namely those in which resident aliens, both ordinary and privileged, and agents of foreign states are concerned. It is his duty to receive these cases and divide them into ten groups, and assign to each tribe the group which comes to it by lot; after which the magistrates who introduce cases for the tribe hand them over to the Arbitrators. The Polemarch, however, brings up in person cases in which an alien is charged with deserting his patron or neglecting to provide himself with one, and also of inheritances and wards of state where aliens are concerned; and in fact, generally, whatever the Archon does for citizens, the Polemarch does for aliens. Part 59 The Thesmothetae in the first place have the power of prescribing on what days the lawcourts are to sit, and next of assigning them to the several magistrates; for the latter must follow the arrangement which the Thesmothetae assign. Moreover they introduce impeachments before the Assembly, and bring up all votes for removal from office, challenges of a magistrate's conduct before the Assembly, indictments for illegal proposals, or for proposing a law which is contrary to the interests of the state, complaints against Proedri or their president for their conduct in office, and the accounts presented by the generals. All indictments also come before them in which a deposit has to be made by the prosecutor, namely, indictments for concealment of foreign origin, for corrupt evasion of foreign origin (when a man escapes the disqualification by bribery), for blackmailing accusations, bribery, false entry of another as a state debtor, false testimony to the service of a summons, conspiracy to enter a man as a state debtor, corrupt removal from the list of debtors, and adultery. They also bring up the examinations of all magistrates, and the rejections by the demes and the condemnations by the Council. Moreover they bring up certain private suits in cases of merchandise and mines, or where a slave has slandered a free man. It is they also who cast lots to assign the courts to the various magistrates, whether for private or public cases. They ratify commercial treaties, and bring up the cases which arise out of such treaties; and they also bring up cases of perjury from the Areopagus. The casting of lots for the jurors is conducted by all the nine Archons, with the clerk to the Thesmothetae as the tenth, each performing the duty for his own tribe. Such are the duties of the nine Archons. Part 60 There are also ten Commissioners of Games (Athlothetae), elected by lot, one from each tribe. These officers, after passing an examination, serve for four years; and they manage the Panathenaic procession, the contest in music and that in gymnastic, and the horse-race; they also provide the robe of Athena and, in conjunction with the Council, the vases, and they present the oil to the athletes. This oil is collected from the sacred olives. The Archon requisitions it from the owners of the farms on which the sacred olives grow, at the rate of three-quarters of a pint from each plant. Formerly the state used to sell the fruit itself, and if any one dug up or broke down one of the sacred olives, he was tried by the Council of Areopagus, and if he was condemned, the penalty was death. Since, however, the oil has been paid by the owner of the farm, the procedure has lapsed, though the law remains; and the oil is a state charge upon the property instead of being taken from the individual plants. When, then, the Archon has collected the oil for his year of office, he hands it over to the Treasurers to preserve in the Acropolis, and he may not take his seat in the Areopagus until he has paid over to the Treasurers the full amount. The Treasurers keep it in the Acropolis until the Panathenaea, when they measure it out to the Commissioners of Games, and they again to the victorious competitors. The prizes for the victors in the musical contest consist of silver and gold, for the victors in manly vigour, of shields, and for the victors in the gymnastic contest and the horse-race, of oil. Part 61 All officers connected with military service are elected by open vote. In the first place, ten Generals (Strategi), who were formerly elected one from each tribe, but now are chosen from the whole mass of citizens. Their duties are assigned to them by open vote; one is appointed to command the heavy infantry, and leads them if they go out to war; one to the defence of the country, who remains on the defensive, and fights if there is war within the borders of the country; two to Piraeus, one of whom is assigned to Munichia, and one to the south shore, and these have charge of the defence of the Piraeus; and one to superintend the symmories, who nominates the trierarchs arranges exchanges of properties for them, and brings up actions to decide on rival claims in connexion with them. The rest are dispatched to whatever business may be on hand at the moment. The appointment of these officers is submitted for confirmation in each prytany, when the question is put whether they are considered to be doing their duty. If any officer is rejected on this vote, he is tried in the lawcourt, and if he is found guilty the people decide what punishment or fine shall be inflicted on him; but if he is acquitted he resumes his office. The Generals have full power, when on active service, to arrest any one for insubordination, or to cashier him publicly, or to inflict a fine; the latter is, however, unusual. There are also ten Taxiarchs, one from each tribe, elected by open vote; and each commands his own tribesmen and appoints captains of companies (Lochagi). There are also two Hipparchs, elected by open vote from the whole mass of the citizens, who command the cavalry, each taking five tribes. They have the same powers as the Generals have in respect of the infantry, and their appointments are also subject to confirmation. There are also ten Phylarchs, elected by open vote, one from each tribe, to command the cavalry, as the Taxiarchs do the infantry. There is also a Hipparch for Lemnos, elected by open vote, who has charge of the cavalry in Lemnos. There is also a treasurer of the Paralus, and another of the Ammonias, similarly elected. Part 62 Of the magistrates elected by lot, in former times some including the nine Archons, were elected out of the tribe as a whole, while others, namely those who are now elected in the Theseum, were apportioned among the demes; but since the demes used to sell the elections, these magistrates too are now elected from the whole tribe, except the members of the Council and the guards of the dockyards, who are still left to the demes. Pay is received for the following services. First the members of the Assembly receive a drachma for the ordinary meetings, and nine obols for the 'sovereign' meeting. Then the jurors at the law-courts receive three obols; and the members of the Council five obols. The Prytanes receive an allowance of an obol for their maintenance. The nine Archons receive four obols apiece for maintenance, and also keep a herald and a flute-player; and the Archon for Salamis receives a drachma a day. The Commissioners for Games dine in the Prytaneum during the month of Hecatombaeon in which the Panathenaic festival takes place, from the fourteenth day onwards. The Amphictyonic deputies to Delos receive a drachma a day from the exchequer of Delos. Also all magistrates sent to Samos, Scyros, Lemnos, or Imbros receive an allowance for their maintenance. The military offices may be held any number of times, but none of the others more than once, except the membership of the Council, which may be held twice. Part 63 The juries for the law-courts are chosen by lot by the nine Archons, each for their own tribe, and by the clerk to the Thesmothetae for the tenth. There are ten entrances into the courts, one for each tribe; twenty rooms in which the lots are drawn, two for each tribe; a hundred chests, ten for each tribe; other chests, in which are placed the tickets of the jurors on whom the lot falls; and two vases. Further, staves, equal in number to the jurors required, are placed by the side of each entrance; and counters are put into one vase, equal in number to the staves. These are inscribed with letters of the alphabet beginning with the eleventh (lambda), equal in number to the courts which require to be filled. All persons above thirty years of age are qualified to serve as jurors, provided they are not debtors to the state and have not lost their civil rights. If any unqualified person serves as juror, an information is laid against him, and he is brought before the court; and, if he is convicted, the jurors assess the punishment or fine which they consider him to deserve. If he is condemned to a money fine, he must be imprisoned until he has paid up both the original debt, on account of which the information was laid against him, and also the fine which the court as imposed upon him. Each juror has his ticket of boxwood, on which is inscribed his name, with the name of his father and his deme, and one of the letters of the alphabet up to kappa; for the jurors in their several tribes are divided into ten sections, with approximately an equal number in each letter. When the Thesmothetes has decided by lot which letters are required to attend at the courts, the servant puts up above each court the letter which has been assigned to it by the lot. Part 64 The ten chests above mentioned are placed in front of the entrance used by each tribe, and are inscribed with the letters of the alphabet from alpha to kappa. The jurors cast in their tickets, each into the chest on which is inscribed the letter which is on his ticket; then the servant shakes them all up, and the Archon draws one ticket from each chest. The individual so selected is called the Ticket-hanger (Empectes), and his function is to hang up the tickets out of his chest on the bar which bears the same letter as that on the chest. He is chosen by lot, lest, if the Ticket-hanger were always the same person, he might tamper with the results. There are five of these bars in each of the rooms assigned for the lot-drawing. Then the Archon casts in the dice and thereby chooses the jurors from each tribe, room by room. The dice are made of brass, coloured black or white; and according to the number of jurors required, so many white dice are put in, one for each five tickets, while the remainder are black, in the same proportion. As the Archon draws out the dice, the crier calls out the names of the individuals chosen. The Ticket-hanger is included among those selected. Each juror, as he is chosen and answers to his name, draws a counter from the vase, and holding it out with the letter uppermost shows it first to the presiding Archon; and he, when he has seen it, throws the ticket of the juror into the chest on which is inscribed the letter which is on the counter, so that the juror must go into the court assigned to him by lot, and not into one chosen by himself, and that it may be impossible for any one to collect the jurors of his choice into any particular court. For this purpose chests are placed near the Archon, as many in number as there are courts to be filled that day, bearing the letters of the courts on which the lot has fallen. Part 65 The juror thereupon, after showing his counter again to the attendant, passes through the barrier into the court. The attendant gives him a staff of the same colour as the court bearing the letter which is on his counter, so as to ensure his going into the court assigned to him by lot; since, if he were to go into any other, he would be betrayed by the colour of his staff. Each court has a certain colour painted on the lintel of the entrance. Accordingly the juror, bearing his staff, enters the court which has the same colour as his staff, and the same letter as his counter. As he enters, he receives a voucher from the official to whom this duty has been assigned by lot. So with their counters and their staves the selected jurors take their seats in the court, having thus completed the process of admission. The unsuccessful candidates receive back their tickets from the Ticket-hangers. The public servants carry the chests from each tribe, one to each court, containing the names of the members of the tribe who are in that court, and hand them over to the officials assigned to the duty of giving back their tickets to the jurors in each court, so that these officials may call them up by name and pay them their fee. Part 66 When all the courts are full, two ballot boxes are placed in the first court, and a number of brazen dice, bearing the colours of the several courts, and other dice inscribed with the names of the presiding magistrates. Then two of the Thesmothetae, selected by lot, severally throw the dice with the colours into one box, and those with the magistrates' names into the other. The magistrate whose name is first drawn is thereupon proclaimed by the crier as assigned for duty in the court which is first drawn, and the second in the second, and similarly with the rest. The object of this procedure is that no one may know which court he will have, but that each may take the court assigned to him by lot. When the jurors have come in, and have been assigned to their respective courts, the presiding magistrate in each court draws one ticket out of each chest (making ten in all, one out of each tribe), and throws them into another empty chest. He then draws out five of them, and assigns one to the superintendence of the water-clock, and the other four to the telling of the votes. This is to prevent any tampering beforehand with either the superintendent of the clock or the tellers of the votes, and to secure that there is no malpractice in these respects. The five who have not been selected for these duties receive from them a statement of the order in which the jurors shall receive their fees, and of the places where the several tribes shall respectively gather in the court for this purpose when their duties are completed; the object being that the jurors may be broken up into small groups for the reception of their pay, and not all crowd together and impede one another. Part 67 These preliminaries being concluded, the cases are called on. If it is a day for private cases, the private litigants are called. Four cases are taken in each of the categories defined in the law, and the litigants swear to confine their speeches to the point at issue. If it is a day for public causes, the public litigants are called, and only one case is tried. Water-clocks are provided, having small supply-tubes, into which the water is poured by which the length of the pleadings is regulated. Ten gallons are allowed for a case in which an amount of more than five thousand drachmas is involved, and three for the second speech on each side. When the amount is between one and five thousand drachmas, seven gallons are allowed for the first speech and two for the second; when it is less than one thousand, five and two. Six gallons are allowed for arbitrations between rival claimants, in which there is no second speech. The official chosen by lot to superintend the water-clock places his hand on the supply tube whenever the clerk is about to read a resolution or law or affidavit or treaty. When, however, a case is conducted according to a set measurement of the day, he does not stop the supply, but each party receives an equal allowance of water. The standard of measurement is the length of the days in the month Poseideon. The measured day is employed in cases when imprisonment, death, exile, loss of civil rights, or confiscation of goods is assigned as the penalty. Part 68 Most of the courts consist of 500 members; and when it is necessary to bring public cases before a jury of 1,000 members, two courts combine for the purpose, the most important cases of all are brought 1,500 jurors, or three courts. The ballot balls are made of brass with stems running through the centre, half of them having the stem pierced and the other half solid. When the speeches are concluded, the officials assigned to the taking of the votes give each juror two ballot balls, one pierced and one solid. This is done in full view of the rival litigants, to secure that no one shall receive two pierced or two solid balls. Then the official designated for the purpose takes away the jurors' staves, in return for which each one as he records his vote receives a brass voucher marked with the numeral 3 (because he gets three obols when he gives it up). This is to ensure that all shall vote; since no one can get a voucher unless he votes. Two urns, one of brass and the other of wood, stand in the court, in distinct spots so that no one may surreptitiously insert ballot balls; in these the jurors record their votes. The brazen urn is for effective votes, the wooden for unused votes; and the brazen urn has a lid pierced so as to take only one ballot ball, in order that no one may put in two at a time. When the jurors are about to vote, the crier demands first whether the litigants enter a protest against any of the evidence; for no protest can be received after the voting has begun. Then he proclaims again, 'The pierced ballot for the plaintiff, the solid for the defendant'; and the juror, taking his two ballot balls from the stand, with his hand closed over the stem so as not to show either the pierced or the solid ballot to the litigants, casts the one which is to count into the brazen urn, and the other into the wooden urn. Part 69 When all the jurors have voted, the attendants take the urn containing the effective votes and discharge them on to a reckoning board having as many cavities as there are ballot balls, so that the effective votes, whether pierced or solid, may be plainly displayed and easily counted. Then the officials assigned to the taking of the votes tell them off on the board, the solid in one place and the pierced in another, and the crier announces the numbers of the votes, the pierced ballots being for the prosecutor and the solid for the defendant. Whichever has the majority is victorious; but if the votes are equal the verdict is for the defendant. Each juror receives two ballots, and uses one to record his vote, and throws the other away. Then, if damages have to be awarded, they vote again in the same way, first returning their pay-vouchers and receiving back their staves. Half a gallon of water is allowed to each party for the discussion of the damages. Finally, when all has been completed in accordance with the law, the jurors receive their pay in the order assigned by the lot. THE END 
29815	----	THE DECLARATION OF THE RIGHTS OF MAN AND OF CITIZENS _A Contribution to Modern Constitutional History_ BY GEORG JELLINEK, DR. PHIL. ET JUR. _Professor of Law in the University of Heidelberg AUTHORIZED TRANSLATION FROM THE GERMAN_ BY MAX FARRAND, PH.D. _Professor of History in Wesleyan University_ _REVISED BY THE AUTHOR_ [Illustration] NEW YORK HENRY HOLT AND COMPANY 1901 Copyright, 1901. BY HENRY HOLT & CO. ROBERT DRUMMOND, PRINTER, NEW YORK. TRANSLATOR'S PREFACE. Although several years have elapsed since this essay was published, it has apparently come to the attention of only a few specialists, and those almost exclusively in modern European history. It deserves consideration by all students of history, and it is of special importance to those who are interested in the early constitutional history of the United States, for it traces the origin of the enactment of bills of rights. In the hope that it will be brought before a larger number of students who realize the significance of this question and who appreciate genuine scholarly work, this essay is now translated. M.F. WESLEYAN UNIVERSITY, MIDDLETOWN, CT., _March 1, 1901_. TABLE OF CONTENTS. CHAPTER PAGE I. THE FRENCH DECLARATION OF RIGHTS OF AUGUST 26, 1789, AND ITS SIGNIFICANCE 1 II. ROUSSEAU'S "CONTRAT SOCIAL" WAS NOT THE SOURCE OF THIS DECLARATION 8 III. THE BILLS OF RIGHTS OF THE INDIVIDUAL STATES OF THE NORTH AMERICAN UNION WERE ITS MODELS 13 IV. VIRGINIA'S BILL OF RIGHTS AND THOSE OF THE OTHER NORTH AMERICAN STATES 22 V. COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS 27 VI. THE CONTRAST BETWEEN THE AMERICAN AND ENGLISH DECLARATIONS OF RIGHTS 43 VII. RELIGIOUS LIBERTY IN THE ANGLO-AMERICAN COLONIES THE SOURCE OF THE IDEA OF ESTABLISHING BY LAW A UNIVERSAL RIGHT OF MAN 59 VIII. THE CREATION OF A SYSTEM OF RIGHTS OF MAN AND OF CITIZENS DURING THE AMERICAN REVOLUTION 78 IX. THE RIGHTS OF MAN AND THE TEUTONIC CONCEPTION OF RIGHT 90 THE DECLARATION OF THE RIGHTS OF MAN AND OF CITIZENS. CHAPTER I. THE FRENCH DECLARATION OF RIGHTS OF AUGUST 26, 1789, AND ITS SIGNIFICANCE. The declaration of "the rights of man and of citizens" by the French Constituent Assembly on August 26, 1789, is one of the most significant events of the French Revolution. It has been criticised from different points of view with directly opposing results. The political scientist and the historian, thoroughly appreciating its importance, have repeatedly come to the conclusion that the Declaration had no small part in the anarchy with which France was visited soon after the storming of the Bastille. They point to its abstract phrases as ambiguous and therefore dangerous, and as void of all political reality and practical statesmanship. Its empty pathos, they say, confused the mind, disturbed calm judgment, aroused passions, and stifled the sense of duty,--for of duty there is not a word.[1] Others, on the contrary, and especially Frenchmen, have exalted it as a revelation in the world's history, as a catechism of the "principles of 1789" which form the eternal foundation of the state's structure, and they have glorified it as the most precious gift that France has given to mankind. Less regarded than its historical and political significance is the importance of this document in the history of law, an importance which continues even to the present day. Whatever may be the value or worthlessness of its general phrases, it is under the influence of this document that the conception of the public rights of the individual has developed in the positive law of the states of the European continent. Until it appeared public law literature recognized the rights of heads of states, the privileges of class, and the privileges of individuals or special corporations, but the general rights of subjects were to be found essentially only in the form of duties on the part of the state, not in the form of definite legal claims of the individual. The Declaration of the Rights of Man for the first time originated in all its vigor in positive law the conception, which until then had been known only to natural law, of the personal rights of the members of the state over against the state as a whole. This was next seen in the first French constitution of September 3, 1791, which set forth, upon the basis of a preceding declaration of rights, a list of _droits naturels et civils_ as rights that were guaranteed by the constitution.[2] Together with the right of suffrage, the "_droits garantis par la constitution_", which were enumerated for the last time in the constitution of November 4, 1848,[3] form to-day the basis of French theory and practice respecting the personal public rights of the individual.[4] And under the influence of the French declaration there have been introduced into almost all of the constitutions of the other Continental states similar enumerations of rights, whose separate phrases and formulas, however, are more or less adapted to the particular conditions of their respective states, and therefore frequently exhibit wide differences in content. In Germany most of the constitutions of the period prior to 1848 contained a section upon the rights of subjects, and in the year 1848 the National Constitutional Convention at Frankfort adopted "the fundamental rights of the German people", which were published on December 27, 1848, as Federal law. In spite of a resolution of the _Bund_ of August 23, 1851, declaring these rights null and void, they are of lasting importance, because many of their specifications are to-day incorporated almost word for word in the existing Federal law.[5] These enumerations of rights appear in greater numbers in the European constitutions of the period after 1848. Thus, first of all, in the Prussian constitution of January 31, 1850, and in Austria's "Fundamental Law of the State" of December 21, 1867, on the general rights of the state's citizens. And more recently they have been incorporated in the constitutions of the new states in the Balkan peninsula. A noteworthy exception to this are the constitutions of the North German Confederation of July 26, 1867, and of the German Empire of April 16, 1871, which lack entirely any paragraph on fundamental rights. The constitution of the Empire, however, could the better dispense with such a declaration as it was already contained in most of the constitutions of the individual states, and, as above stated, a series of Federal laws has enacted the most important principles of the Frankfort fundamental rights. Besides, with the provisions of the Federal constitution as to amendments, it was not necessary to make any special place for them in that instrument, as the Reichstag, to whose especial care the guardianship of the fundamental rights must be entrusted, has no difficult forms to observe in amending the constitution.[6] As a matter of fact the public rights of the individual are much greater in the German Empire than in most of the states where the fundamental rights are specifically set forth in the constitution. This may be seen, for example, by a glance at the legislation and the judicial and administrative practice in Austria. But whatever may be one's opinion to-day upon the formulation of abstract principles, which only become vitalized through the process of detailed legislation, as affecting the legal position of the individual in the state, the fact that the recognition of such principles is historically bound up with that first declaration of rights makes it an important task of constitutional history to ascertain the origin of the French Declaration of Rights of 1789. The achievement of this task is of great importance both in explaining the development of the modern state and in understanding the position which this state assures to the individual. Thus far in the works on public law various precursors of the declaration of the Constituent Assembly, from Magna Charta to the American Declaration of Independence, have been enumerated and arranged in regular sequence, yet any thorough investigation of the sources from which the French drew is not to be found. It is the prevailing opinion that the teachings of the _Contrat Social_ gave the impulse to the Declaration, and that its prototype was the Declaration of Independence of the thirteen United States of North America. Let us first of all inquire into the correctness of these assumptions. FOOTNOTES: [Footnote 1: First of all, as is well known, Burke and Bentham, and later Taine, _Les origines de la France contemporaine: La révolution_, I, pp. 273 _et seq._; Oncken, _Das Zeitalter der Revolution, des Kaiserreiches und der Befreiungskriege_, I, pp. 229 _et seq._; and Weiss, _Geschichte der französischen Revolution_, 1888, I, p. 263.] [Footnote 2: Titre premier: "Dispositions fondamentales garanties par la constitution."] [Footnote 3: Hélie, _Les constitutions de la France_, pp. 1103 _et seq._] [Footnote 4: _Cf._ Jellinek, _System der subjektiven öffentlichen Rechte_, p. 3, n. 1.] [Footnote 5: Binding, _Der Versuch der Reichsgründung durch die Paulskirche_, Leipzig, 1892, p. 23.] [Footnote 6: When considering the constitution, the Reichstag rejected all proposals which aimed to introduce fundamental rights. _Cf._ Bezold, _Materialen der deutschen Reichsverfassung_, III, pp. 896-1010.] CHAPTER II. ROUSSEAU'S _CONTRAT SOCIAL_ WAS NOT THE SOURCE OF THIS DECLARATION. In his _History of Political Science_--the most comprehensive work of that kind which France possesses--Paul Janet, after a thorough presentation of the _Contrat Social_, discusses the influence which this work of Rousseau's exercised upon the Revolution. The idea of the declaration of rights is to be traced back to Rousseau's teachings. What else is the declaration itself than the formulation of the state contract according to Rousseau's ideas? And what are the several rights but the stipulations and specifications of that contract?[7] It is hard to understand how an authority upon the _Contrat Social_ could make such a statement though in accord with popular opinion. The social contract has only one stipulation, namely, the complete transference to the community of all the individual's rights.[8] The individual does not retain one particle of his rights from the moment he enters the state.[9] Everything that he receives of the nature of right he gets from the _volonté générale_, which is the sole judge of its own limits, and ought not to be, and cannot be, restricted by the law of any power. Even property belongs to the individual only by virtue of state concession. The social contract makes the state the master of the goods of its members,[10] and the latter remain in possession only as the trustees of public property.[11] Civil liberty consists simply of what is left to the individual after taking his duties as a citizen into account.[12] These duties can only be imposed by law, and according to the social contract the laws must be the same for all citizens. This is the only restriction upon the sovereign power,[13] but it is a restriction which follows from the very nature of that power, and it carries in itself its own guarantees.[14] The conception of an original right, which man brings with him into society and which appears as a restriction upon the rights of the sovereign, is specifically rejected by Rousseau. There is no fundamental law which can be binding upon the whole people, not even the social contract itself.[15] The Declaration of Rights, however, would draw dividing lines between the state and the individual, which the lawmaker should ever keep before his eyes as the limits that have been set him once and for all by "the natural, inalienable and sacred rights of man."[16] The principles of the _Contrat Social_ are accordingly at enmity with every declaration of rights. For from these principles there ensues not the right of the individual, but the omnipotence of the common will, unrestricted by law. Taine comprehended better than Janet the consequences of the _Contrat Social_.[17] The Declaration of August 26, 1789, originated in opposition to the _Contrat Social_. The ideas of the latter work exercised, indeed, a certain influence upon the style of some clauses of the Declaration, but the conception of the Declaration itself must have come from some other source. FOOTNOTES: [Footnote 7: "Est-il nécessaire de prouver, qu'un tel acte ne vient point de Montesquieu, mais de J.-J. Rousseau?... Mais l'acte même de la déclaration est-il autre chose que le contrat passé entre tous les membres de la communauté, selon les idées de Rousseau? N'est ce pas l'énonciation des clauses et des conditions de ce contrat?"--_Histoire de la science politique, 3me éd._, pp. 457, 458.] [Footnote 8: "Ces clauses, bien entendues, se réduisent toutes à une seule: savoir l'aliénation totale de chaque associé avec tous ses droits à toute la communauté."--_Du contrat social_, I, 6.] [Footnote 9: "De plus, l'aliénation se faisant sans réserve, l'union est aussi parfaite qu'elle peut l'être et nul associé n'a plus rien à réclamer." I, 6.] [Footnote 10: "Car l'État, à l'égard de ses membres, est maître de tous leurs biens par le contrat social." I, 9.] [Footnote 11: "... Les possesseurs étant considérés comme dépositaires du bien public." I, 9.] [Footnote 12: "On convient que tout ce que chacun aliène, par le pacte social, de sa puissance, de ses biens, de sa liberté, c'est seulement la partie de tout cela dont l'usage importe à la communauté; mais il faut convenir aussi que le souverain seul est juge de cette importance." II, 4.] [Footnote 13: "Ainsi, par la nature du pacte, tout acte de souveraineté, c'est-à-dire toute acte authentique de la volonté générale, oblige ou favorise également tous les citoyens." II, 4.] [Footnote 14: "La puissance souverain n'a nul besoin de garant envers les sujets." I, 7.] [Footnote 15: "Il est contre la nature du corps politique que le souverain s'impose une loi qu'il ne puisse enfreindre ... il n'y a ni ne peut y avoir nulle espèce de loi fundamentale obligatoire pour le corps du peuple, pas même le contrat social." I, 7.] [Footnote 16: Constitution du 3 septembre 1791, titre premier: "Le pouvoir législatif ne pourra faire aucune loi qui porte atteinte et mette obstacle à l'exercise de droits naturels et civils consignés dans le présent titre, et garantis par la constitution."] [Footnote 17: _Cf._ Taine, _loc. cit._: _L'ancien régime_, pp. 321 _et seq._] CHAPTER III. THE BILLS OF RIGHTS OF THE INDIVIDUAL STATES OF THE NORTH AMERICAN UNION WERE ITS MODELS. The conception of a declaration of rights had found expression in France even before the assembling of the States General. It had already appeared in a number of _cahiers_. The _cahier_ of the _Bailliage_ of Nemours is well worth noting, as it contained a chapter entitled "On the Necessity of a Declaration of the Rights of Man and of Citizens",[18] and sketched a plan of such a declaration with thirty articles. Among other plans that in the _cahier des tiers état_ of the city of Paris has some interest.[19] In the National Assembly, however, it was Lafayette who on July 11, 1789, made the motion to enact a declaration of rights in connection with the constitution, and he therewith laid before the assembly a plan of such a declaration.[20] It is the prevailing opinion that Lafayette was inspired to make this motion by the North American Declaration of Independence.[21] And this instrument is further declared to have been the model that the Constituent Assembly had in mind in framing its declaration. The sharp, pointed style and the practical character of the American document are cited by many as in praiseworthy contrast to the confusing verbosity and dogmatic theory of the French Declaration.[22] Others bring forward, as a more fitting object of comparison, the first amendments to the constitution of the United States,[23] and even imagine that the latter exerted some influence upon the French Declaration, in spite of the fact that they did not come into existence until after August 26, 1789. This error has arisen from the French Declaration of 1789 having been embodied word for word in the Constitution of September 3, 1791, and so to one not familiar with French constitutional history, and before whom only the texts of the constitutions themselves are lying, it seems to bear a later date. By practically all those, however, who look further back than the French Declaration it is asserted that the Declaration of Independence of the United States on July 4, 1776, contains the first exposition of a series of rights of man.[24] Yet the American Declaration of Independence contains only a single paragraph that resembles a declaration of rights. It reads as follows: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness; That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed; That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." This sentence is so general in its content that it is difficult to read into it, or deduct from it, a whole system of rights. It is therefore, at the very start, improbable that it served as the model for the French Declaration. This conjecture becomes a certainty through Lafayette's own statement. In a place in his _Memoirs_, that has as yet been completely overlooked, Lafayette mentions the model that he had in mind when making his motion in the Constituent Assembly.[25] He very pertinently points out that the Congress of the newly formed Confederation of North American free states was then in no position to set up, for the separate colonies, which had already become sovereign states, rules of right which would have binding force. He brings out the fact that in the Declaration of Independence there are asserted only the principles of the sovereignty of the people and the right to change the form of government. Other rights are included solely by implication from the enumeration of the violations of right, which justified the separation from the mother country. The constitutions of the separate states, however, were preceded by declarations of rights, which were binding upon the people's representatives. _The first state to set forth a declaration of rights properly so called was Virginia._[26] The declarations of Virginia and of the other individual American states were the sources of Lafayette's proposition. They influenced not only Lafayette, but all who sought to bring about a declaration of rights. Even the above-mentioned _cahiers_ were affected by them. The new constitutions of the separate American states were well known at that time in France. As early as 1778 a French translation of them, dedicated to Franklin, had appeared in Switzerland.[27] Another was published in 1783 at Benjamin Franklin's own instigation.[28] Their influence upon the constitutional legislation of the French Revolution is by no means sufficiently recognized. In Europe until quite recently only the Federal constitution was known, not the constitutions of the individual states, which are assuming a very prominent place in modern constitutional history. This must be evident from the fact, which is even yet unrecognized by some distinguished historians and teachers of public law, that the individual American states had the first written constitutions. In England and France the importance of the American state constitutions has begun to be appreciated,[29] but in Germany they have remained as yet almost unnoticed. For a long time, to be sure, the text of the older constitutions in their entirety were only with difficulty accessible in Europe. But through the edition, prepared by order of the United States Senate,[30] containing all the American constitutions since the very earliest period, one is now in a position to become acquainted with these exceptionally important documents. The French Declaration of Rights is for the most part copied from the American declarations or "bills of rights".[31] All drafts of the French Declaration, from those of the _cahiers_ to the twenty-one proposals before the National Assembly, vary more or less from the original, either in conciseness or in breadth, in cleverness or in awkwardness of expression. But so far as substantial additions are concerned they present only doctrinaire statements of a purely theoretical nature or elaborations, which belong to the realm of political metaphysics. To enter upon them here is unnecessary. Let us confine ourselves to the completed work, the Declaration as it was finally determined after long debate in the sessions from the twentieth to the twenty-sixth of August.[32] FOOTNOTES: [Footnote 18: "De la nécessité d'établir quels sont les droits de l'homme et des citoyens, et d'en faire une déclaration qu'ils puissent opposer à toutes les espèces d'injustice."--_Archives parlementaires I. Série_, IV, pp. 161 _et seq._] [Footnote 19: _Archives parl._, V, pp. 281 _et seq._] [Footnote 20: _Arch. parl._, VIII, pp. 221, 222.] [Footnote 21: _Cf. e.g._ H. v. Sybel, _Geschichte der Revolutionszeit von 1789 bis 1800, 4. Aufl._, I, p. 73.] [Footnote 22: _Cf._ Häusser, _Geschichte der franz. Revolution, 3. Aufl._, p. 169; H. Schulze, _Lehrbuch des deutschen Staatsrechts_, I, p. 368; Stahl, _Staatslehre, 4. Aufl._, p. 523; Taine, _loc. cit._: _La révolution_, I, p. 274: "Ici rien de semblable aux déclarations précises de la Constitution américaine." In addition, note 1: _cf. la Déclaration d'indépendance du 4 juillet 1776_.] [Footnote 23: Stahl, _loc. cit._, p. 524; Taine, _loc. cit._ The fact that Jefferson's proposal to enact a declaration of rights was rejected is expressly emphasized in a note.] [Footnote 24: Stahl, _loc. cit._, p. 523, does mention, in addition, the declarations of the separate states, but he does not specify when they originated, nor in what relation they stand to the French Declaration, and his comments show that he is not at all familiar with them. Janet, _loc. cit._, I, p. v _et seq._, enters at length into the subject of the state declarations in order to show the originality of the French, and he even makes the mistaken attempt to prove French influence upon the American (p. xxxv). The more detailed history of the American declarations he is quite ignorant of.] [Footnote 25: _Mémoires, correspondances et manuscripts du général Lafayette, publiés par sa famille_, II, p. 46.] [Footnote 26: "Mais les constitutions que se donnèrent successivement les treize états, furent précedées de déclarations des droits, dont les principes devaient servir de règles aux représentans du peuple, soit aux conventions, soit dans les autres exercises de leur pouvoirs. La Virginie fut la première à produire une déclaration des droits proprement dite."--_Ibid._, p. 47.] [Footnote 27: _Recueil des loix constitutives des colonies anglaises, confédérées sous la dénomination d'États-Unis de l'Amérique-Septentrionale. Dédié à M. le Docteur Franklin. En suisse, chez les libraires associés._] [Footnote 28: _Cf._ Ch. Borgeaud, _Établissement et revision des constitutions en Amérique et en Europe_, Paris, 1893, p. 27.] [Footnote 29: Especially the exceptional work of James Bryce, _The American Commonwealth_, Vol I, Part II., The State Governments; Boutmy, _Études de droit constitutionnel, 2me éd._, Paris, 1895, pp. 83 _et seq._; and Borgeaud, _loc. cit._, pp. 28 _et seq._] [Footnote 30: _The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the United States._ Compiled by Ben: Perley Poore. Two vols., Washington, 1877. Only the most important documents of the colonial period are included.] [Footnote 31: This is not quite clear even to the best French authority on American history, Laboulaye, as is evident from his treatment of the subject, _Histoire des États-Unis_, II, p. 11.] [Footnote 32: _Cf. Arch. Parl._, VIII, pp. 461-489.] CHAPTER IV. VIRGINIA'S BILL OF RIGHTS AND THOSE OF THE OTHER NORTH AMERICAN STATES. The Congress of the colonies, which were already resolved upon separation from the mother country, while sitting in Philadelphia issued on May 15, 1776, an appeal to its constituents to give themselves constitutions. Of the thirteen states that originally made up the Union, eleven had responded to this appeal before the outbreak of the French Revolution. Two retained the colonial charters that had been granted them by the English crown, and invested these documents with the character of constitutions, namely, Connecticut the charter of 1662, and Rhode Island that of 1663, so that these charters are the oldest written constitutions in the modern sense.[33] Of the other states Virginia was the first to enact a constitution in the convention which met at Williamsburg from May 6 to June 29, 1776. It was prefaced with a formal "bill of rights",[34] which had been adopted by the convention on the twelfth of June. The author of this document was George Mason, although Madison exercised a decided influence upon the form that was finally adopted.[35] This declaration of Virginia's served as a pattern for all the others, even for that of the Congress of the United States, which was issued three weeks later, and, as is well known, was drawn up by Jefferson, a citizen of Virginia. In the other declarations there were many stipulations formulated somewhat differently, and also many new particulars were added.[36] Express declarations of rights had been formulated after Virginia's before 1789 in the constitutions of Pennsylvania of September 28, 1776, Maryland of November 11, 1776, North Carolina of December 18, 1776, Vermont of July 8, 1777,[37] Massachusetts of March 2, 1780, New Hampshire of October 31, 1783, (in force June 2, 1784.) In the oldest constitutions of New Jersey, South Carolina, New York and Georgia special bills of rights are wanting, although they contain many provisions which belong in that category.[38] The French translation of the American Constitutions of 1778 includes a _déclaration expositive des droits_ by Delaware that is lacking in Poore's collection.[39] In the following section the separate articles of the French Declaration are placed in comparison with the corresponding articles from the American declarations. Among the latter, however, I have sought out only those that most nearly approach the form of expression in the French text. But it must be once more strongly emphasized that the fundamental ideas of the American declarations generally duplicate each other, so that the same stipulation reappears in different form in the greater number of the bills of rights. We shall leave out the introduction with which the Constituent Assembly prefaced its declaration, and begin at once with the enumeration of the rights themselves. But even the introduction, in which the National Assembly "_en présence et sous les auspices de l'Être supréme_" solemnly proclaims the recognition and declaration of the rights of man and of citizens, and also sets forth the significance of the same, is inspired by the declaration of Congress and by those of many of the individual states with which the Americans sought to justify their separation from the mother country. FOOTNOTES: [Footnote 33: Connecticut in 1818, and Rhode Island first in 1842, put new constitutions in the place of the old Colonial Charters.] [Footnote 34: Poore, II, pp. 1908, 1909.] [Footnote 35: On the origin of Virginia's bill of rights, _cf._ Bancroft, _History of the United States_, London, 1861, VII, chap. 64.] [Footnote 36: Virginia's declaration has 16, that of Massachusetts 30, and Maryland's 42 articles. Virginia's declaration does not include the right of emigration, which was first enacted in Article XV of Pennsylvania's; the rights of assembling and petition are also lacking, which were first found in the Pennsylvania bill of rights (Article XVI).] [Footnote 37: Vermont's statehood was contested until 1790, and it was first recognized February 18, 1791, as an independent member of the United States.] [Footnote 38: Religious liberty is recognized by New York in an especially emphatic manner, Constitution of April 20, 1777, Art. XXXVIII. Poore, II, p. 1338.] [Footnote 39: Pp. 151 _et seq._ (The translator has reprinted this declaration in an article in the _American Historical Review_, of July, 1898, entitled "The Delaware Bill of Rights of 1776".)] CHAPTER V. COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS. ART. 1. _Les hommes naissent et demeurent libres et égaux en droits. Les distinctions sociales ne peuvent être fondées que sur l'utilité commune._ 2. _Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l'homme. Ces droits sont la liberté, la propriété, la sûreté et la résistance à l'oppression._ VIRGINIA, I. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. VIRGINIA, IV. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services. MASSACHUSETTS, Preamble to the Constitution. The end of the institution, maintenance, and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life. MARYLAND, IV. The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish and destructive of the good and happiness of mankind. 3. _Le principe de toute souveraineté réside essentiellement dans la nation. Nul corps, nul individu ne peut exercer d'autorité qui n'en émane expréssement._ VIRGINIA, II. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them. 4. _La liberté consiste à pouvoir faire tout ce qui ne nuit pas à autrui; aussi l'exercise des droits naturels de chaque homme n'a de bornes que celles qui assurent aux autres membres de la société la jouissance de ces mêmes droits. Ces bornes ne peuvent être déterminées que par la loi._ MASSACHUSETTS, Preamble. The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good. MASSACHUSETTS, X. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. 5. _La loi n'a le droit de défendre que les actions nuisibles à la société. Tout ce qui n'est pas défendu par la loi ne peut être empêché et nul ne peut être contraint à faire ce qu'elle n'ordonne pas._ MASSACHUSETTS, XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. NORTH CAROLINA, XIII. That every freeman, restrained of his liberty, is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful; and that such remedy ought not to be denied or delayed. VIRGINIA, VII. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.[40] 6. _La loi est l'expression de la volonté générale. Tous les citoyens ont le droit de concourir personnellement ou par leurs représentants à sa formation. Elle doit être la même pour tous, soit qu'elle protège, soit qu'elle punisse. Tous les citoyens étant égaux à ses yeux, sont également admissibles à toutes dignités, places et emplois publics, selon leur capacité, et sans autre distinction que celle de leurs vertus et leurs talents._ MARYLAND, V. That the right in the people to participate in the Legislature, is the best security of liberty, and the foundation of all free government. MASSACHUSETTS, IX. All elections ought to be free;[41] and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments. NEW HAMPSHIRE, XII. Nor are the inhabitants of this State controllable by any other laws than those to which they or their representative body have given their consent. 7. _Nul homme ne peut être accusé, arrêté, ni détenu que dans les cas déterminés par la loi et selon les formes qu'elle a prescrites. Ceux qui sollicitent, expédient, exécutent ou font exécuter des ordres arbitraires, doivent être punis; mais tout citoyen appelé ou saisi en vertu de la loi doit obéir à l'instant; il se rend coupable par sa résistance._ MASSACHUSETTS, XII. No subject shall be held to answer for any crimes or no offence until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself; and every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.[42] VIRGINIA, X. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted. 8. _La loi ne doit établir que des peines strictement nécessaires et nul ne peut être puni qu'en vertu d'une loi établie et promulguée antérieurement au délit et légalement appliquée._ NEW HAMPSHIRE, XVIII. All penalties ought to be proportioned to the nature of the offence.[43] MARYLAND, XIV. That sanguinary laws ought to be avoided, as far as is consistent with the safety of the State; and no law, to inflict cruel and unusual pains and penalties, ought to be made in any case, or at any time hereafter.[44] MARYLAND, XV. That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no _ex post facto_ law ought to be made. 9. _Tout homme étant présumé innocent jusqu' à ce qu'il ait été déclaré coupable, s'il est jugé indispensable de l'arrêter, toute rigueur qui ne serait pas nécessaire pour s'assurer de sa personne doit être sévèrement réprimée par la loi._ _Cf._ above, MASSACHUSETTS, XII; further MASSACHUSETTS, XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. MASSACHUSETTS, XXVI. No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines[45] ... 10. _Nul doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne trouble pas l'ordre public établi par la loi._ NEW HAMPSHIRE, V. Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments or persuasion; provided he doth not disturb the public peace, or disturb others, in their religious worship. 11. _La libre communication des pensées et des opinions est un des droits les plus précieux de l'homme; tout citoyen peut donc parler, écrire, imprimer librement sauf à répondre de l'abus de cette liberté dans les cas determinés par la loi._ VIRGINIA, XII. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments. PENNSYLVANIA, XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments. 12. _La garantie des droits de l'homme et du citoyen nécessité une force publique. Cette force est donc instituée pour l'avantage de tous, et non pour l'utilité particulière de ceux auxquels elle est confiée._ PENNSYLVANIA, V. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or sett of men, who are a part only of that community. 13. _Pour l'entretien de la force publique et pour les dépenses d'administration, une contribution commune est indispensable; elle doit être également répartie entre tous les citoyens en raison de leurs facultés._ MASSACHUSETTS, X. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary. 14. _Tous les citoyens ont le droit de constater, par eux mêmes ou par leur représentants, la nécessité de la contribution publique, de la consentir librement, d'en suivre l'emploi, et d'en déterminer la qualité, l'assiette, le recouvrement et la durée._ MASSACHUSETTS, XXIII. No subsidy, charge, tax, impost, or duties, ought to be established, fixed, laid or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature. 15. _La société a le droit de demander compte à tout agent public de son administration._ See above, VIRGINIA, II; further MASSACHUSETTS V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are the substitutes and agents, and are at all times accountable to them. 16. _Toute société, dans laquelle la garantie des droits n'est pas assurée, ni la séparation des pouvoirs déterminée, n'a point de constitution._ NEW HAMPSHIRE, III. When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others; and without such an equivalent, the surrender is void. MASSACHUSETTS, XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men. 17. _La propriété étant un droit inviolable et sacré, nul ne peut en être privé, si ce n'est lors que la nécessité publique, légalement constatée, l'exige évidemment, et sous la condition d'une juste et préalable indemnité._ MASSACHUSETTS, X. ... But no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people.... And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. VERMONT, II. That private property ought to be subservient to public uses, when necessity requires it; nevertheless, whenever any particular man's property is taken for the use of the public, the owner ought to receive an equivalent in money. FOOTNOTES: [Footnote 40: _Cf._ English Bill of Rights, 1.] [Footnote 41: English Bill of Rights, 8.] [Footnote 42: Magna Charta, 39.] [Footnote 43: Magna Charta, 20.] [Footnote 44: English Bill of Rights, 10.] [Footnote 45: English Bill of Rights, 10.] CHAPTER VI. THE CONTRAST BETWEEN THE AMERICAN AND ENGLISH DECLARATIONS OF RIGHTS. The comparison of the American and French declarations shows at once that the setting forth of principles abstract, and therefore ambiguous, is common to both, as is also the pathos with which they are recited. The French have not only adopted the American ideas, but even the form they received on the other side of the ocean. But in contrast to the diffuseness of the Americans the French are distinguished by a brevity characteristic of their language. Articles 4-6 of the Declaration have the most specific French additions in the superfluous and meaningless definitions of liberty[46] and law. Further, in Articles 4, 6 and 13 of the French text special stress is laid upon equality before the law, while to the Americans, because of their social conditions and democratic institutions, this seemed self-evident and so by them is only brought out incidentally. In the French articles the influence of the _Contrat Social_ will have been recognized; but yet it brought out nothing essentially new, or unknown to the American stipulations. The result that has been won is not without significance for the student of history in passing judgment upon the effects of the French Declaration. The American states have developed with their bills of rights into orderly commonwealths in which there has never been any complaint that these propositions brought consequences disintegrating to the state. The disorders which arose in France after the Declaration of the Rights of Man cannot therefore have been brought about by its formulas alone. Much rather do they show what dangers may lie in the too hasty adoption of foreign institutions. That is, the Americans in 1776 went on building upon foundations that were with them long-standing. The French, on the other hand, tore up all the foundations of their state's structure. What was in the one case a factor in the process of consolidation served in the other as a cause of further disturbance. This was even recognized at the time by sharp-sighted men, such as Lally-Tollendal[47] and, above all, Mirabeau.[48] But from the consideration of the American bills of rights there arises a new problem for the historian of law: How did Americans come to make legislative declarations of this sort? To the superficial observer the answer seems simple. The very name points to English sources. The Bill of Rights of 1689, the Habeas Corpus Act of 1679, the Petition of Right of 1628, and finally the _Magna Charta libertatum_ appear to be unquestionably the predecessors of the Virginia bill of rights. Assuredly the remembrance of these celebrated English enactments, which the Americans regarded as an inherent part of the law of their land, had a substantial share in the declarations of rights after 1776. Many stipulations from Magna Charta and the English Bill of Rights were directly embodied by the Americans in their lists. And yet a deep cleft separates the American declarations from the English enactments that have been mentioned. The historian of the American Revolution says of the Virginia declaration that it protested against all tyranny in the name of the eternal laws of man's being: "The English petition of right in 1688 was historic and retrospective; the Virginia declaration came directly out of the heart of nature and announced governing principles for all peoples in all future times."[49] The English laws that establish the rights of subjects are collectively and individually confirmations, arising out of special conditions, or interpretations of existing law. Even Magna Charta contains no new right, as Sir Edward Coke, the great authority on English law, perceived as early as the beginning of the seventeenth century.[50] The English statutes are far removed from any purpose to recognize general rights of man, and they have neither the power nor the intention to restrict the legislative agents or to establish principles for future legislation. According to English law Parliament is omnipotent and all statutes enacted or confirmed by it are of equal value. The American declarations, on the other hand, contain precepts which stand higher than the ordinary lawmaker. In the Union, as well as in the individual states, there are separate organs for ordinary and for constitutional legislation, and the judge watches over the observance of the constitutional limitations by the ordinary legislative power. If in his judgment a law infringes on the fundamental rights, he must forbid its enforcement. The declarations of rights even at the present day are interpreted by the Americans as practical protections of the minority.[51] This distinguishes them from the "guaranteed rights" of the European states. The American declarations are not laws of a higher kind in name only, they are the creations of a higher lawmaker. In Europe, it is true, the constitutions place formal difficulties in the way of changing their specifications, but almost everywhere it is the lawmaker himself who decides upon the change. Even in the Swiss Confederacy judicial control over the observance of these forms is nowhere to be found, although there, as in the United States, the constitutional laws proceed from other organs than those of the ordinary statutes. The American bills of rights do not attempt merely to set forth certain principles for the state's organization, but they seek above all to draw the boundary line between state and individual. According to them the individual is not the possessor of rights through the state, but by his own nature he has inalienable and indefeasible rights. The English laws know nothing of this. They do not wish to recognize an eternal, natural right, but one inherited from their fathers, "the old, undoubted rights of the English people." The English conception of the rights of the subject is very clear upon this point. When one looks through the Bill of Rights carefully, one finds but slight mention there of individual rights. That laws should not be suspended, that there should be no dispensation from them, that special courts should not be erected, that cruel punishments should not be inflicted, that jurors ought to be duly impanelled and returned, that taxes should not be levied without a law, nor a standing army kept without consent of Parliament, that parliamentary elections should be free, and Parliament be held frequently--all these are not rights of the individual, but duties of the government. Of the thirteen articles of the Bill of Rights only two contain stipulations that are expressed in the form of rights of the subject,[52] while one refers to freedom of speech in Parliament. When nevertheless all the stipulations of the Bill of Rights are therein designated as rights and liberties of the English people,[53] it is through the belief that restriction of the crown is at the same time right of the people. This view grew directly out of the mediæval conception of the Teutonic state. While the ancient state appears at the beginning of its history as [Greek: polis] or _civitas_, as an undivided community of citizens, the monarchical Teutonic state is from the beginning dualistic in form,--prince and people form no integral unity, but stand opposed to each other as independent factors. And so the state in the conception of the time is substantially a relation of contract between the two. The Roman and Canonical theory of law under the influence of ancient traditions even as early as the eleventh century attempts to unite the two elements in that, upon the basis of a contract, it either makes the people part with their rights to the prince, and accordingly makes the government the state, or it considers the prince simply as the authorized agent of the people and so makes the latter and the state identical. The prevailing opinion in public law, however, especially since the rise of the state of estates, sees in the state a double condition of contract between prince and people. The laws form the content of this compact. They established, therefore, for the prince a right of demanding lawful obedience, and for the people of demanding adherence to the limitations placed by the laws. The people accordingly have a right to the fulfilment of the law by the prince. Thus all laws create personal rights of the people, and the term people is thought of in a confused way as referring to the individuals as well as to the whole--_singuli et universi_.[54] From this point of view it is a right of the people that Parliament should be frequently summoned, that the judge should inflict no cruel punishments, and however else the declarations of the English charters may read. This conception of law as two-sided, establishing rights for both elements of the state, runs through all the earlier English history. The right which is conferred by law passes from generation to generation, it becomes hereditary and therefore acquirable by birth as one of the people. Under Henry VI. it is declared of the law: "La ley est le plus haute inheritance que le roy ad; car par la ley il même et toutes ses sujets sont rulés, et si la ley ne fuit, nul roy et nul inheritance sera."[55] And in the Petition of Right Parliament makes the appeal that the subjects have inherited their freedom through the laws.[56] The laws, as the Act of Settlement expresses it, are the "birthright of the people".[57] And so we find only ancient "rights and liberties" mentioned in the English laws of the seventeenth century. Parliament is always demanding simply the confirmation of the "laws and statutes of this realm", that is, the strengthening of the existing relations between king and people. Of the creation of new rights there is not a word in all these documents. Consequently there is no reference whatever to the important fundamental rights of religious liberty, of assembling, of liberty of the press, or of free movement. And down to the present day the theory of English law does not recognize rights of this kind, but considers these lines of individual liberty as protected by the general principle of law, that any restraint of the person can only come about through legal authorization.[58] According to the present English idea the rights of liberty rest simply upon the supremacy of the law,--they are law, not personal rights.[59] The theory, founded in Germany by Gerber, and defended by Laband and others, according to which the rights of liberty are nothing but duties of the government, sprang up in England, without any connection with the German teaching, from the existing conditions after the conception of the public rights of the individual as natural rights, which was based on Locke and Blackstone, had lost its power. But with Locke even this conception stands in close connection with the old English ideas. When Locke considers property--in which are included life and liberty--as an original right of the individual existing previous to the state, and when he conceives of the state as a society founded to protect this right, which is thus transformed from a natural to a civil right, he by no means ascribes definite fundamental rights to the man living in the state, but rather places such positive restrictions upon the legislative power as follow from the purposes of the state.[60] When closely examined, however, these restrictions are nothing else than the most important stipulations of the Bill of Rights, which was enacted the year before the _Two Treatises on Government_ appeared.[61] Blackstone was the first (1765) to found his doctrine of the absolute rights of persons upon the idea of the personal rights of the individual. Security, liberty, and property are the absolute rights of every Englishman, which from their character are nothing else than the natural liberty that remains to the individual after deducting the legal restraints demanded by the common interest.[62] Laws appear likewise as protectors of these rights,--the whole constitution of Parliament, the limitation of the royal prerogative, and along with these the protection of the law courts, the right of petition, and the right to carry arms are treated, exactly in the manner of the Bill of Rights, as rights of Englishmen, and indeed as subordinate rights to assist in guarding the three principal rights.[63] But in spite of his fundamental conception of a natural right, the individual with rights was for Blackstone not man simply, but the English subject.[64] The American declarations of rights, on the other hand, begin with the statement that all men are born free and equal, and these declarations speak of rights that belong to "every individual", "all mankind" or "every member of society". They enumerate a much larger number of rights than the English declarations, and look upon these rights as innate and inalienable. Whence comes this conception in American law? It is not from the English law. There is then nothing else from which to derive it than the conceptions of natural rights of that time. But there have been theories of natural rights ever since the time of the Greeks, and they never led to the formulation of fundamental rights. The theory of natural rights for a long time had no hesitation in setting forth the contradiction between natural law and positive law without demanding the realization of the former through the latter. A passage from Ulpian is drawn upon in the _Digests_, which declares all men to be equal according to the law of nature, but slavery to be an institution of the civil law.[65] The Romans, however, in spite of all mitigation of slave laws, never thought of such a thing as the abolition of slavery. The natural freedom of man was set forth by many writers during the eighteenth century as compatible with lawful servitude. Even Locke, for whom liberty forms the very essence of man, in his constitution for North Carolina sanctioned slavery and servitude. Literature alone never produces anything, unless it finds in the historical and social conditions ground ready for its working. When one shows the literary origin of an idea, one has by no means therewith discovered the record of its practical significance. The history of political science to-day is entirely too much a history of the literature and too little a history of the institutions themselves. The number of new political ideas is very small; the most, at least in embryo, were known to the ancient theories of the state. But the institutions are found in constant change and must be seized in their own peculiar historical forms. FOOTNOTES: [Footnote 46: It harks back finally to the old definition of Florentinus L. 4 D. 1, 5: "Libertas est naturalis facultas eius, quod cuique facere libet, nisi si quid vi aut jure prohibetur."] [Footnote 47: _Arch. parl._ VIII, p. 222.] [Footnote 48: _Ibid._, pp. 438 and 453.] [Footnote 49: Bancroft, VII, p. 243.] [Footnote 50: _Cf._ Blackstone, _Commentaries on the Laws of England_, I, 1, p. 127. (Edited by Kerr, London, 1887, I, p. 115.)] [Footnote 51: Upon this point, _cf._ Cooley, _Constitutional Limitations_, 6th edition, Boston, 1890, Chap. VII. Even if the stipulation contained in the bills of rights that one can be deprived of his property only "by the law of the land" should not be embodied in the constitution by a state, a law transgressing it would be void by virtue of the fundamental limitations upon the competence of the legislatures. _Loc. cit._, p. 208.] [Footnote 52: The right to address petitions to the king (5), and the right of Protestant subjects to carry arms for their own defense suitable to their condition (7).] [Footnote 53: "And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties."] [Footnote 54: The old English charters put forward as possessors of the "_jura et libertates_" now the "_homines in regno nostro_", now the _regnum_ itself. The Petition of Right speaks of the "rights and liberties" of the subjects, but they are also characterized as "the laws and free customs of this realm".] [Footnote 55: Year Books XIX, Gneist, _Englische Verfassungsgeschichte_, p. 450.] [Footnote 56: "By which the statutes before-mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom." Gardiner, _The Constitutional Documents of the Puritan Revolution_, 1889, pp. 1, 2.] [Footnote 57: "And whereas the laws of England are the birthright of the people thereof." Act of Settlement IV, Stubbs, _Select Charters_, 7th ed., 1890, p. 531. Birthright = right by birth, the rights, privileges or possessions to which one is entitled by birth; inheritance, patrimony (specifically used of the special rights of the first-born). Murray, _A New English Dictionary on Historical Principles_, _s. h. v._] [Footnote 58: _Cf._ the instructive work of Dicey, _Introduction to the Study of the Law of the Constitution_, 3d ed., 1889, pp. 171 _et seq._] [Footnote 59: "Sie sind objectives, nicht subjectives Recht." Dicey, pp. 184 _et seq._, 193 _et seq._, 223 _et seq._, etc. Dicey treats the whole doctrine of the rights of liberty in the section "The Rule of Law." Individual liberty according to him is in England simply the correlative of only permitting the restriction of the individual through laws.] [Footnote 60: This is treated in the chapter "Of the Extent of the Legislative Power," _On Civil Government_, XI.] [Footnote 61: _Cf._ _On Civil Government_, XI, § 142.] [Footnote 62: Political liberty is no other than national liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public. _Loc. cit._, p. 125 (113).] [Footnote 63: _Loc. cit._, pp. 141 _et seq._ (127 _et seq._).] [Footnote 64: _Cf._ _loc. cit._, pp. 127 (114), 144 (130).] [Footnote 65: L. 32 D. de R.J. Exactly so the kindred doctrines of the Stoics earlier in Greece had not the least legal success.] CHAPTER VII. RELIGIOUS LIBERTY IN THE ANGLO-AMERICAN COLONIES THE SOURCE OF THE IDEA OF ESTABLISHING BY LAW A UNIVERSAL RIGHT OF MAN. The democratic idea, upon which the constitution of the Reformed Church is based, was carried to its logical conclusion in England toward the end of the sixteenth century, and first of all by Robert Browne and his followers. They declared the Church, which was identical with the parish, to be a community of believers who had placed themselves under obedience to Christ by a compact with God, and they steadfastly recognized as authoritative only the will of the community at the time being, that is, the will of the majority.[66] Persecuted in England Brownism transformed itself on Dutch soil, especially through the agency of John Robinson, into Congregationalism, in which the earliest form of the Independent movement made its appearance. The principles of Congregationalism are first complete separation of Church and State and then the autonomy of each separate parish,--as a petition addressed to James I. in 1616 expresses it: the right is exercised "of spiritual administration and government in itself and over itself by the common and free consent of the people, independently and immediately under Christ."[67] This sovereign individualism in the religious sphere led to practical consequences of extraordinary importance. From its principles there finally resulted the demand for, and the recognition of, full and unrestricted liberty of conscience, and then the asserting of this liberty to be a right not granted by any earthly power and therefore by no earthly power to be restrained. But the Independent movement could not confine itself to ecclesiastical matters, it was forced by logical necessity to carry its fundamental doctrines into the political sphere. As the Church, so it considered the state and every political association as the result of a compact between its original sovereign members.[68] This compact was made indeed in pursuance of divine commandment, but it remained always the ultimate legal basis of the community. It was concluded by virtue of the individual's original right and had not only to insure security and advance the general welfare, but above all to recognize and protect the innate and inalienable rights of conscience. And it is the entire people that specifically man for man concluded this compact, for by it alone could every one be bound to respect the self-created authority and the self-created law. The first indications of these religious-political ideas can be traced far back, for they were not created by the Reformation. But the practice which developed on the basis of these ideas was something unique. For the first time in history social compacts, by which states are founded, were not merely demanded, they were actually concluded. What had until then slumbered in the dust-covered manuscripts of the scholar became a powerful, life-determining movement. The men of that time believed that the state rested upon a contract, and they put their belief into practice. More recent theory of public law with only an imperfect knowledge of these events frequently employed them as examples of the possibility of founding a state by contract, without suspecting that these contracts were only the realization of an abstract theory. On October 28, 1647, there was laid before the assembled Council of Cromwell's army a draft, worked out by the Levellers, of a new constitution for England,[69] which later, greatly enlarged and modified,[70] was delivered to Parliament with the request that it be laid before the entire English people for signature.[71] In this remarkable document the power of Parliament was set forth as limited in a manner similar to that later adopted by the Americans, and particulars were enumerated which in future should not lie within the legislative power of the people's representatives. The first thing named was matters of religion, which were to be committed exclusively to the command of conscience.[72] They were reckoned among the inherent rights, the "native rights", which the people were firmly resolved to maintain with their utmost strength against all attacks.[73] Here for the first and last time in England was an inherent right of religious liberty asserted in a proposed law. This right is recognized to-day in England in legal practice, but not in any expressly formulated principle.[74] The religious conditions in England's North American colonies developed differently. The compact is celebrated which the persecuted and exiled Pilgrim Fathers concluded on board the Mayflower, November 11, 1620, before the founding of New Plymouth. Forty-one men on that occasion signed an act in which, for the glory of God, the advancement of the Christian faith, and the honor of their king and country, they declare their purpose to found a colony. They thereupon mutually promised one another to unite themselves into a civil body politic, and, for the maintenance of good order and accomplishment of their proposed object, to make laws, to appoint officers, and to subject themselves to these.[75] Therewith began the series of "Plantation Covenants" which the English settlers, according to their ecclesiastical and political ideas, believed it necessary to make on founding a new colony. Here they are only to be considered in their connection with religious liberty. In 1629 Salem, the second colony in Massachusetts, was founded by Puritans. Unmindful of the persecutions they themselves had suffered in their native land, they turned impatiently against such as did not agree with them in their religious ideas. Roger Williams, a young Independent, landed in Massachusetts in 1631 and was at once chosen by the community in Salem to be its minister. But he preached complete separation of Church and State, and demanded absolute religious liberty, not only for all Christians but also for Jews, Turks, and heathen. They should have in the state equal civil and political rights with believers. A man's conscience belongs exclusively to him, and not to the state.[76] Exiled and in danger, Williams forsook Salem and with a faithful few founded, 1636, the city of Providence in the country of the Narragansett Indians, where all who were persecuted on account of their religion should find a refuge. In the original compact the seceders promised obedience to laws determined by a majority of themselves, but "only in civil things"--religion was to be in no way a subject of legislation.[77] Here for the first time was recognized the most unrestricted liberty of religious conviction, and that by a man who was himself glowing with religious feeling. Nineteen settlers from Providence in 1638 founded Aquedneck, the second colony in the present state of Rhode Island, after having concluded a most remarkable compact: "We whose names are underwritten do here solemnly, in the presence of Jehovah, incorporate ourselves into a Bodie Politik, and as he shall help, will submit our persons, lives and estates unto our Lord Jesus Christ, the King of Kings and Lord of Lords, and to all those perfect and absolute laws of his given us in his holy word of truth, to be guided and judged hereby.--Exod. xxiv, 3, 4; 2 Chron. xi, 3; 2 Kings xi, 17."[78] But such as did not go so far as Roger Williams in the recognition of liberty of conscience were yet dominated by the idea of the necessity of a social compact in founding a new colony. In the Fundamental Orders of Connecticut, a colony founded by Puritans who also had emigrated from Massachusetts, the settlers in 1638 declared that they united themselves in a body politic in pursuance of the word of God in order to guard the liberty of the Gospel and the church discipline to which they were accustomed, and in order also in civil affairs to be ruled according to the laws.[79] In the opposition in which they stood to the religious conditions in England, the Puritans, although themselves little inclined to toleration, proceeded invariably upon the idea that their state had first of all to realize religious liberty, which was for them the free exercise of their own religious convictions. The idea that state and government rested upon a compact--so significant for the development of the American conceptions of individual liberty--was strengthened by the force of historical circumstances. A handful of men went forth to found new communities. They began their work of civilization scattered over wide stretches in the loneliness of the primeval forest.[80] And so they believed that it was possible to live outside of the state, in a condition of nature, and that when they stepped out of that condition of nature they did it of their own free will and were not constrained by any earthly power. With their small numbers, representation was at first unnecessary, and the decisions were reached in the town meetings of all belonging to the community,--the form of a direct democracy grew naturally out of the given conditions and strengthened the conviction, which does not correspond to the old English conception, that the sovereignty of the people is the basis of legislation and of government. To a generation that could point to such beginnings for their state, the political ideas which later animated the men of 1776 seemed to bear their surety in themselves: they were "self-evident", as it reads in the Declaration of Independence. The inherent fundamental right of religious liberty, for which Roger Williams had striven so earnestly, found also in the seventeenth century its official recognition in law, first in the laws of 1647 of Rhode Island, and then in the charter which Charles II. granted the colony of Rhode Island and Providence Plantations in 1663.[81] It was therein ordered in fulfilment of the colonists' request, in a manner ever memorable, that in future in the said colony no person should be molested, punished or called in question for any differences of opinion in matters of religion; but that all persons at all times should have full liberty of conscience, so long as they behaved themselves peaceably and did not misuse this liberty in licentiousness or profaneness, nor to the injury or disturbance of others.[82] Thus a colony was granted that which in the mother-country at the time was contested to the utmost. Similar principles are found for the first time in Europe in the Practice of Frederick the Great in Prussia. But the principles of religious liberty were recognized to a greater or less extent in other colonies also. Catholic Maryland in 1649 granted freedom in the exercise of religion to every one who acknowledged Jesus Christ.[83] Also that remarkable constitution which Locke prepared for North Carolina and that went into force there in 1669, and which agrees so little with the tenets of his _Two Treatises on Government_, is based upon the principle not, it is true, of full equality of rights, but of toleration of Dissenters, and also of Jews and heathen.[84] It was permitted every seven persons of any religion to form a church or communion of faith.[85] No compulsion in matters of religion was exercised, except that every inhabitant when seventeen years of age had to declare to which communion he belonged and to be registered in some church, otherwise he stood outside of the protection of the law.[86] All violence toward any religious assembly was strictly prohibited.[87] It was not the principle of political liberty that lay on Locke's heart, but the opening of a way to full religious liberty. In spite of the fact that in his treatise _On Civil Government_ there is not a word upon the right of conscience, which he had so energetically defended in his celebrated _Letters on Toleration_, the constitution of North Carolina shows that in his practical plans it held the first place. And so with Locke also liberty of conscience was brought forward as the first and most sacred right, overshadowing all others. This philosopher, who held freedom to be man's inalienable gift from nature, established servitude and slavery under the government he organized without hesitation, but religious toleration he carried through with great energy in this new feudal state. Of the other colonies New Jersey had proclaimed extensive toleration in 1664, and New York in 1665.[88] In the latter, which had already declared under Dutch rule in favor of liberal principles in religious matters, it was ordered in 1683 that no one who believed on Jesus Christ should on any pretext whatever be molested because of difference of opinion. In the same year William Penn conferred a constitution with democratic basis upon the colony granted to him by the Crown and which he had named after his father Pennsylvania, in which it was declared that no one who believed on God should in any way be forced to take part in any religious worship or be otherwise molested,[89] and in the constitution, which Penn later (1701) established and which remained in force until 1776, he emphasized above all that even when a people were endowed with the greatest civil liberties they could not be truly happy, unless liberty of conscience were recognized,[90] and at the close he solemnly promised for himself and his heirs that the recognition of this liberty, which he had declared, should remain forever inviolable and that the wording of the article should not be changed in any particular.[91] The constitutional principle was thus given at once the force of a _lex in perpetuum valitura_. In 1692 Massachusetts received a charter from William III. in which, following the example of the Toleration Act of 1689, full liberty was granted to all Christians except Catholics;[92] and Georgia was given a similar law in 1732 by George II.[93] Thus the principles of religious liberty to a greater or less extent acquired constitutional recognition in America. In the closest connection with the great religious political movement out of which the American democracy was born, there arose the conviction that there exists a right not conferred upon the citizen but inherent in man, that acts of conscience and expressions of religious conviction stand inviolable over against the state as the exercise of a higher right. This right so long suppressed is no "inheritance", is nothing handed down from their fathers, as the rights and liberties of Magna Charta and of the other English enactments,--not the State but the Gospel proclaimed it. What in Europe at that time and even much later had received official expression only in scanty rudiments,[94] and aside from that was only asserted in the literature of the great intellectual movement which began in the seventeenth century and reached its height in the clearing-up epoch of the century following, was in Rhode Island and other colonies a recognized principle of the state by the middle of the seventeenth century. The right of the liberty of conscience was proclaimed, and with it came the conception of a universal right of man. In 1776 this right was designated by all the bills of rights, mostly in emphatic form and with precedence over all others, as a natural and inherent right.[95] The character of this right is emphasized by the bill of rights of New Hampshire, which declares that among the natural rights some are inalienable because no one can offer an equivalent for them. Such are the rights of conscience.[96] The idea of legally establishing inalienable, inherent and sacred rights of the individual is not of political but religious origin. What has been held to be a work of the Revolution was in reality a fruit of the Reformation and its struggles. Its first apostle was not Lafayette but Roger Williams, who, driven by powerful and deep religious enthusiasm, went into the wilderness in order to found a government of religious liberty, and his name is uttered by Americans even to-day with the deepest respect. FOOTNOTES: [Footnote 66: Weingarten, _Die Revolutionskirchen Englands_, p. 21.] [Footnote 67: _Ibid._, p. 25.] [Footnote 68: The connection of the Puritan-Independent doctrine of the state-compact with the Puritan idea of church covenants is brought out by Borgeaud, p. 9. Weingarten (p. 288) remarks forcibly of the Independents, "The right of every separate religious community freely and alone to decide and conduct their affairs was the foundation of the doctrine of the sovereignty of the people, which they introduced into the political consciousness of the modern world."] [Footnote 69: First reproduced in Gardiner, _History of the Great Civil War_, III, London, 1891, pp. 607-609.] [Footnote 70: The final text in Gardiner, _Constitutional Documents of the Puritan Revolution_, Oxford, 1889, pp. 270-282.] [Footnote 71: Gardiner, _History_, III, p. 568.] [Footnote 72: "That matters of religion and the ways of God's worship are not at all entrusted by us to any human power." Gardiner, _History_, p. 608.] [Footnote 73: _Cf._ the text in Gardiner, _History_, p. 609.] [Footnote 74: _Cf._ Dicey, _loc. cit._, pp. 229, 230, where several laws are mentioned restricting the liberty of expressing religious opinion which are, however, obsolete, though they have never been formally repealed.] [Footnote 75: The complete text in Poore, I, p. 931. That it was far from the intentions of the settlers to found an independent state is evident from the entire document, in which they characterize themselves as "subjects of our dread Sovereign Lord King James".] [Footnote 76: On Williams, _cf._ Weingarten, pp. 36 _et seq._, and 293, Bancroft, I, pp. 276 _et seq._, Masson, _The Life of John Milton_, II, pp. 560 _et seq._ The advance of the Independent movement to unconditional freedom of faith is thoroughly discussed by Weingarten, pp. 110 _et seq._] [Footnote 77: Samuel Greene Arnold, _History of the State of Rhode Island_, I, New York, 1859, p. 103.] [Footnote 78: Arnold, p. 124.] [Footnote 79: _Fundamental Orders of Connecticut_, Poore, I, p. 249.] [Footnote 80: The entire number of immigrants in New England amounted in 1640 to 22,000 at the highest. Of these New Plymouth had 3000, Connecticut less than 2000 souls. Masson, _loc. cit._, pp. 548-550.] [Footnote 81: The wide separation of the colonies from the mother-country did not make this liberty appear dangerous though it was in such contradiction to the conditions in England. Charles II. sought further, in his aversion to the Puritans, to favor as much as possible the colonies that had separated from Massachusetts.] [Footnote 82: "Our royall will and pleasure is, that noe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or called in question, for any differences in opinione in matters of religion, and doe not actually disturb the civill peace of our sayd colony; but that all and everye person and persons may, from tyme to tyme, and at all tymes hereafter, freelye and fullye have and enjoye his and their owne judgments and consciences, in matters of religious concernments, throughout the tract of lande hereafter mentioned; they behaving themselves peaceablie and quietlie, and not useing this libertie to lycentiousnesse and profanenesse, nor to the civill injurye or outward disturbeance of others; any lawe, statute or clause, therein contayned, or to bee contayned, usage or custome of this realme, to the contrary hereof, in any wise, notwithstanding." Poore, II, pp. 1596, 1597.] [Footnote 83: Bancroft, I, p. 193, E. Lloyd Harris, _Church and Slate in the Maryland Colony_. Inaugural-Dissertation. Heidelberg, 1894, p. 26 _et seq_.] [Footnote 84: Carolina had already had religious toleration in the Charter of 1665. Poore, II, p. 1397. Locke himself wished to grant full religious liberty. _Cf._ Laboulaye, I, p. 397.] [Footnote 85: Art. 97. Poore, II, pp. 1406, 1407.] [Footnote 86: Art. 101. _Ibid._] [Footnote 87: Arts. 102, 106. _Ibid._] [Footnote 88: C. Ellis Stevens, _Sources of the Constitution of the United States_, New York, 1894, P. 217.] [Footnote 89: Laws agreed upon in England, Art. XXXV. Poore, II, p. 1526.] [Footnote 90: Charter of Privileges for Pennsylvania, Art. I. Poore, II, p. 1537. For holding office the confession of belief in Jesus Christ as the Saviour of the world was necessary, but no special creed.] [Footnote 91: Art. VIII, section 3.] [Footnote 92: Poore, I, p. 950. On this point _cf._ Lauer, _Church and State in New England_ in _Johns Hopkins University Studies, 10th Series_, II-III, Baltimore, 1892, pp. 35 _et seq._] [Footnote 93: Poore, I, p. 375.] [Footnote 94: In England the Toleration Act, I. Will. and Mary, c. 18, first granted toleration to Dissenters. This was again restricted under Anne and restored under George I. Since George II. they have been admitted to all offices. As is well known, however, the restrictions upon the Catholics and Jews have been done away with only in our century. In Germany after the scanty concessions of the Peace of Osnabrück, a state of affairs similar to that earlier in America was first created by the Toleration Patent of Joseph II. of 1781, the Edict of Frederick William II. of July 9, 1788, that which codified the principles of Frederick the Great, and above all by the Prussian _Allgemeines Landrecht_ (Teil II, Titel 11, §§ 1 _et seq._).] [Footnote 95: To be sure the carrying out of this right, in the direction of full political equality to the members of all confessions, differed in the different states. New York was the first state after Rhode Island that brought about the separation of church and state. Virginia followed next in 1785. For some time after in many states Protestant or at least Christian belief was necessary to obtain office. And even to-day some states require belief in God, in immortality, and in a future state of rewards and punishments. Massachusetts declared in her bill of rights not only the right but the duty of worship, and as late as 1799 punished neglect of church attendance. In the course of the nineteenth century these and other restrictions have fallen away except for a very small part. For the Union the exercise of political rights is made entirely independent of religious belief by Art. VI of the Constitution, and also by the famous First Amendment the establishment of any religion or prohibiting the free exercise thereof is forbidden. On the present condition in the separate states, _cf._ the thorough discussion by Cooley, Chap. XIII, pp. 541-586; further Rüttiman, _Kirche und Staat in Nordamerika_ (1871).] [Footnote 96: "Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the RIGHTS OF CONSCIENCE." Art. IV. Poore, II, 1280.] CHAPTER VIII. THE CREATION OF A SYSTEM OF RIGHTS OF MAN AND OF CITIZENS DURING THE AMERICAN REVOLUTION. The seventeenth century was a time of religious struggles. In the following century political and economic interests pressed into the foreground of historical movement. The democratic institutions of the colonies were repeatedly in opposition to those of the mother-country, and the ties that bound them to her lost more and more of their significance. The great antagonism of their economic interests began to make itself widely felt. The economic prosperity of the colonies demanded the least possible restriction upon free movement. Finally they felt that they were ruled not by their old home but by a foreign country. Then the old Puritan and Independent conceptions became effective in a new direction. The theory of the social compact which played so important a rôle in the founding of the colonies, and had helped to establish religious liberty, now supported in the most significant way the reconstruction of existing institutions. Not that it changed these institutions, it simply gave them a new basis. The colonists had brought over the ocean with them their liberties and rights as English-born subjects. In a series of charters from the English kings it was specifically stated that the colonists and their descendants should enjoy all the rights which belonged to Englishmen in their native land.[97] Even before the English Bill of Rights the most of the colonies had enacted laws in which the ancient English liberties were gathered together.[98] There occurred, however, in the second half of the eighteenth century a great transformation in these old rights. The inherited rights and liberties, as well as the privileges of organization, which had been granted the colonists by the English kings or had been sanctioned by the colonial lords, do not indeed change in word, but they become rights which spring not from man but from God and Nature. To these ancient rights new ones were added. With the conviction that there existed a right of conscience independent of the State was found the starting-point for the determination of the inalienable rights of the individual. The theory of a Law of Nature recognized generally but one natural right of the individual--liberty or property. In the conceptions of the Americans, however, in the eighteenth century there appears a whole series of such rights. The teaching of Locke, the theories of Pufendorf[99] and the ideas of Montesquieu, all powerfully influenced the political views of the Americans of that time. But the setting forth of a complete series of universal rights of man and of citizens can in no way be explained through their influence alone. In 1764 there appeared in Boston the celebrated pamphlet of James Otis upon _The Rights of the British Colonies_. In it was brought forward the idea that the political and civil rights of the English colonists in no way rested upon a grant from the crown; even Magna Charta, old as it might be, was not the beginning of all things. "A time may come when Parliament shall declare every American charter void; but the natural, inherent, and inseparable rights of the colonists as men and as citizens would remain, and, whatever became of charters, can never be abolished till the general conflagration."[100] In this pamphlet definite limitations of the legislative power "which have been established by God and by Nature" are already enumerated in the form of the later bills of rights. As the center of the whole stood the principal occasion of strife between the colonies and the mother-country, the right of taxation. That the levying of taxes or duties without the consent of the people or of representatives of the colonies was not indeed contrary to the laws of the country, but contrary to the eternal laws of liberty.[101] But these limitations were none other than those enumerated by Locke, which "the law of God and of Nature has set for every legislative power in every state and in every form of government". But these propositions of Locke's are here found in a very radical transformation. They are changing namely from law to personal right. While Locke, similar to Rousseau later, places the individuals in subjection to the will of the majority of the community, upon which, however, restrictions are placed by the objects of the state, now the individual establishes the conditions under which he will enter the community, and in the state holds fast to these conditions as rights. He has accordingly rights in the state and claims upon the state which do not spring from the state. In opposition to England's attempt to restrict these rights, the idea formally to declare them and to defend them grew all the stronger. This formulation was influenced by a work that was published anonymously at Oxford in 1754, in which for the first time "absolute rights" of the English are mentioned.[102] It originated from no less a person than Blackstone.[103] These rights of the individual were voiced in Blackstone's words for the first time in a Memorial to the legislature, which is given in an appendix to Otis's pamphlet.[104] On November 20, 1772, upon the motion of Samuel Adams a plan, which he had worked out, of a declaration of rights of the colonists as men, Christians and citizens was adopted by all the assembled citizens of Boston. It was therein declared, with an appeal to Locke, that men enter into the state by voluntary agreement, and they have the right beforehand in an equitable compact to establish conditions and limitations for the state and to see to it that these are carried out. Thereupon the colonists demanded as men the right of liberty and of property, as Christians freedom of religion, and as citizens the rights of Magna Charta and of the Bill of Rights of 1689.[105] Finally, on October 14, 1774, the Congress, representing twelve colonies, assembled in Philadelphia adopted a declaration of rights, according to which the inhabitants of the North American Colonies have rights which belong to them by the unchangeable law of nature, by the principles of the constitution of England and by their own constitutions.[106] From that to the declaration of rights by Virginia is apparently only a step, and yet there is a world-wide difference between the two documents. The declaration of Philadelphia is a protest, that of Virginia a law. The appeal to England's law has disappeared. The state of Virginia solemnly recognizes rights pertaining to the present and future generations as the basis and foundation of government.[107] In this and the following declarations of rights by the now sovereign states of North America, by the side of the rights of liberty that had been thus far asserted,--liberty of person, of property and of conscience,--stand new ones, corresponding to the infringements most recently suffered at England's hands of other lines of individual liberty: the right of assembly, the freedom of the press and free movement. But these rights of liberty were not the only ones therein asserted, there were the right of petition, the demand for the protection of law and the forms to be observed in insuring that, a special demand for trial by an independent jury, and in the same way with regard to other acts of the state; and the foundations of the citizen's political rights were also declared. They thus contained according to the intentions of their authors the distinctive features of the entire public right of the individual. Besides these were included the principle of the division of powers, of rotation of office, of accountability of office-holders, of forbidding hereditary titles, and there were further contained certain limitations on the legislature and executive, such as forbidding the keeping of a standing army or creating an established church,--all of which do not engender personal rights of the individual at all, or do so only indirectly. The whole is based upon the principle of the sovereignty of the people, and culminates in the conception of the entire constitution being an agreement of all concerned. In this particular one sees clearly the old Puritan-Independent idea of the covenant in its lasting influence, of which new power was to be significantly displayed later. When to-day in the separate states of the Union changes in the constitution are enacted either by the people themselves, or through a constitutional convention, there still lives in this democratic institution the same idea that once animated the settlers of Connecticut and Rhode Island. Everywhere the bill of rights forms the first part of the constitution, following which as second part comes the plan or frame of government. The right of the creator of the state, the originally free and unrestricted individual, was first established, and then the right of that which the individuals created, namely, the community. In spite of the general accord of these fundamental principles, when it came to carrying them out in practical legislation great differences arose in the various states, and though these differences were afterward greatly lessened they have not entirely disappeared even to-day. Thus, as mentioned above, religious liberty, in spite of its universal recognition in the constitutions, was not everywhere nor at once carried out in all of its consequences. In spite of the assertion that all men are by nature free and equal the abolition of slavery was not then accomplished. In the slave states in place of "man" stood "freeman". The rights thus formally declared belonged originally to all the "inhabitants", in the slave states to all the "whites". It was only later that the qualification of citizenship of the United States was required in most of the states for the exercise of political rights. We have thus seen by what a remarkable course of development there arose out of the English law, old and new, that was practised in the colonies, the conception of a sphere of rights of the individual, which was independent of the state, and by the latter was simply to be recognized. In reality, however, the declarations of rights did nothing else than express the existing condition of rights in definite universal formulas. That which the Americans already enjoyed they wished to proclaim as a perpetual possession for themselves and for every free people. In contrast to them the French wished to give that which they did not yet have, namely, institutions to correspond to their universal principles. Therein lies the most significant difference between the American and French declarations of rights, that in the one case the institutions preceded the recognition of rights of the individual, in the other they followed after. Therein lay also the fatal mistake of the German National Assembly at Frankfort which wished to determine first the rights of the individual and then establish the state. The German state was not yet founded, but it was already settled what this state not yet existing dare not do and what it had to concede. The Americans could calmly precede their plan of government with a bill of rights, because that government and the controlling laws had already long existed. One thing, however, has resulted from this investigation with irrefutable certainty. The principles of 1789 are in reality the principles of 1776. FOOTNOTES: [Footnote 97: Kent, _Commentaries on American Law_, 10th ed., I, p. 611.] [Footnote 98: _Cf._ Kent, I, pp. 612 _et seq._; Stevens, _loc. cit._, pp. 208 _et seq._ They are universally designated to-day in America as "bills of rights". Their example undoubtedly influenced the declarations of 1776 and those after.] [Footnote 99: Borgeaud, p. 27, cites a treatise by John Wyse as having had great influence in the democratizing of ideas in Massachusetts. This man, whose name was John Wise, has done nothing else than take Pufendorf's theories as the basis of his work, as he himself specifically declares. _Cf._ J. Wise, _A Vindication on the Government of New England Churches_, Boston, 1772, p. 22.] [Footnote 100: Bancroft, IV, pp. 145, 146.] [Footnote 101: _Cf._ John Adams, _Works_, X, Boston, 1856, p. 293.] [Footnote 102: _Analysis of the Laws of England_, Chap. 4.] [Footnote 103: It formed the basis of Blackstone's later _Commentaries_.] [Footnote 104: _Cf._ Otis, _The Rights of the British Colonies asserted and proved_, 1764, reprinted London, p. 106.] [Footnote 105: _Cf._ Wells, _The Life and Public Services of Samuel Adams_, I, Boston, 1865, pp. 502-507; Laboulaye, II, p. 171.] [Footnote 106: The entire text reproduced in Story, _Commentaries on the Constitution of the United States_, 3d ed., I, pp. 134 _et seq._] [Footnote 107: The heading of the bill of rights reads: "A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to them and their posterity, as the basis and foundation of government."] CHAPTER IX. THE RIGHTS OF MAN AND THE TEUTONIC CONCEPTION OF RIGHT. In conclusion there remains still one question to answer. Why is it that the doctrine of an original right of the individual and of a state compact, arising as far back as the time of the Sophists in the ancient world, further developed in the mediæval theory of Natural Law, and carried on by the currents of the Reformation,--why is it that this doctrine advanced to epoch-making importance for the first time in England and her colonies? And in general, in a thoroughly monarchical state, all of whose institutions are inwardly bound up with royalty and only through royalty can be fully comprehended, how could republican ideas press in and change the structure of the state so completely? The immediate cause thereof lies clearly before us. The antagonism between the dynasty of the Stuarts, who came from a foreign land and relied upon their divine right, and the English national conceptions of right, and also the religious wars with royalty in England and Scotland, seem to have sufficiently favored the spreading of doctrines which were able to arouse an energetic opposition. Yet similar conditions existed in many a Continental state from the end of the sixteenth to the middle of the seventeenth century. There, too, arose a strong opposition of the estates to royalty which was striving more and more towards absolutism, fearful religious wars broke out and an extensive literature sought with great energy to establish rights of the people and of the individual over against the rulers. The revolutionary ideas on the continent led it is true in France to regicide, but there was nowhere an attempt made at a reconstruction of the whole state system. Locke's doctrines of a Law of Nature appear to have had no influence at all outside of England. The Continental doctrines of natural law played their important part for the first time at the end of the eighteenth century in the great social transformation of the French Revolution. It was not without result that England in distinction from the Continent had withstood the influence of the Roman Law. The English legal conceptions have by no means remained untouched by the Roman, but they have not been nearly so deeply influenced by them as the Continental. The public law especially developed upon an essentially Teutonic basis, and the original Teutonic ideas of right have never been overgrown with the later Roman conceptions of the state's omnipotence. The Teutonic state, however, in distinction from the ancient, so far as the latter is historically known to us, rose from weak beginnings to increasing power. The competence of the Teutonic state was in the beginning very narrow, the individual was greatly restricted by his family and clan, but not by the state. The political life of the Middle Ages found expression rather in associations than in a state which exhibited at first only rudimentary forms. At the beginning of modern times the power of the state became more and more concentrated. This could happen in England all the easier because the Norman kings had already strongly centralized the administration. As early as the end of the sixteenth century Sir Thomas Smith could speak of the unrestricted power of the English Parliament,[108] which Coke a little later declared to be "absolute and transcendent".[109] But this power was thought of by Englishmen as unlimited only in a nominal legal sense. That the state, and therefore Parliament and the King have very real restrictions placed upon them has been at all times in England a live conviction of the people. Magna Charta declares that the liberties and rights conceded by it are granted "_in perpetuum_".[110] In the Bill of Rights it was ordained that everything therein contained should "remain the law of this realm forever".[111] In spite of the nominal omnipotence of the state a limit which it shall not over-step is specifically demanded and recognized in the most important fundamental laws. In these nominally legal but perfectly meaningless stipulations, the old Teutonic legal conception of the state's limited sphere of activity finds expression. The movement of the Reformation was also based on the idea of the restriction of the state. Here, however, there entered the conception of a second restriction which was conditioned by the entire historical development. The mediæval state found restrictions not only in the strength of its members, but also in the sphere of the church. The question as to how far the state's right extended in spiritual matters could only be fully raised after the Reformation, because through the Reformation those limits which had been fixed in the Middle Ages again became disputable. The new defining of the religious sphere and the withdrawal of the state from that sphere were also on the lines of necessary historical development. So the conception of the superiority of the individual over against the state found its support in the entire historical condition of England in the seventeenth century. The doctrines of a natural law attached themselves to the old conceptions of right, which had never died, and brought them out in new form. The same is true of the theories that arose on the Continent. Since the predominance of the historical school, one is accustomed to look upon the doctrines of a natural law as impossible dreaming. But an important fact is thereby overlooked, that no theory, no matter how abstract it may seem, which wins influence upon its time can do so entirely outside of the field of historical reality. An insight into these historical facts is of the greatest importance for a correct legal comprehension of the relation of the state and the individual. There are here two possibilities, both of which can be logically carried out. According to the one the entire sphere of right of the individual is the product of state concession and permission. According to the other the state not only engenders rights of the individual, but it also leaves the individual that measure of liberty which it does not itself require in the interest of the whole. This liberty, however, it does not create but only recognizes. The first conception is based upon the idea of the state's omnipotence as it was most sharply defined in the absolutist doctrines of the sixteenth and seventeenth centuries. Its extreme consequence has been drawn by the poet in his question of law: "Jahrelang schon bedien' ich mich meiner Nase zum Riechen; Hab' ich denn wirklich an sie auch ein erweisliches Recht?"[112] The second theory on the other hand is that of the Teutonic conception of right corresponding to the historical facts of the gradual development of the state's power. If natural right is identical with non-historical right, then the first doctrine is for the modern state that of natural right, the second that of historical right. However much the boundaries of that recognized liberty have changed in the course of time, the consciousness that such boundaries existed was never extinguished in the Teutonic peoples even at the time of the absolute state.[113] This liberty accordingly was not created but recognized, and recognized in the self-limitation of the state and in thus defining the intervening spaces which must necessarily remain between those rules with which the state surrounds the individual. What thus remains is not so much a right as it is a condition. The great error in the theory of a natural right lay in conceiving of the actual condition of liberty as a right and ascribing to this right a higher power which creates and restricts the state.[114] At first glance the question does not seem to be of great practical significance, whether an act of the individual is one directly permitted by the state or one only indirectly recognized. But it is not the task of the science of law merely to train the judge and the administrative officer and teach them to decide difficult cases. To recognize the true boundaries between the individual and the community is the highest problem that thoughtful consideration of human society has to solve. FOOTNOTES: [Footnote 108: "The most high and absolute power of the realm of England consisteth in the Parliament ... all that ever the people of Rome might do, either in _centuriatis comitiis_ or _tributis_, the same may be done by the Parliament of England, which representeth and hath the power of the whole realm, both the head and the body." _The Commonwealth of England_, 1589, Book II, reprinted in Prothero, _Select Statutes and Documents of Elizabeth and James I._, Oxford, 1894, p. 178.] [Footnote 109: 4 _Inst._ p. 36.] [Footnote 110: Art. 63. Stubbs, p. 306.] [Footnote 111: Art. 11. Stubbs, p. 527.] [Footnote 112: For years I have used my nose to smell with, Have I then really a provable right to it?] [Footnote 113: The idea of all individual rights of liberty being the product of state concession has been recently advocated by Tezner, _Grünhuts Zeitschrift für Privat-und öffentliches Recht_, XXI, pp. 136 _et seq._, who seeks to banish the opposing conception to the realm of natural right. The decision of such important questions can only be accomplished by careful historical analysis, which will show different results for different epochs,--that, for example, the legal nature of liberty is entirely different in the ancient state and in the modern. Legal dialectics can easily deduce the given condition with equally logical acuteness from principles directly opposed to one another. 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17894	----	[Transcriber's note: The source text contained inconsistencies in spelling, punctuation, capitalization, and italicization; these inconsistencies have been retained in this etext.] Franco-Gallia: OR, AN ACCOUNT OF THE Ancient Free State OF _FRANCE_, AND Most other Parts of EUROPE, before the Loss of their Liberties. * * * * * _Written Originally in Latin by the Famous Civilian_ FRANCIS HOTOMAN, In the Year 1574. _And Translated into_ English _by the Author of the_ Account of DENMARK. * * * * * The SECOND EDITION, with Additions, and a _New Preface_ by the Translator. * * * * * LONDON: Printed for Edward Valentine, at the Queen's Head against St. Dunstan's Church, Fleetstreet, 1721. Translated by The Author of the _Account of_ DENMARK. The BOOKSELLER TO THE READER. _The following Translation of the Famous_ Hotoman's Franco-Gallia _was written in the Year 1705, and first publish'd in the Year 1711. The Author was then at a great Distance from_ London, _and the Publisher of his Work, for Reasons needless to repeat, did not think fit to print the Prefatory Discourse sent along with the Original. But this Piece being seasonable at all Times for the Perusal of_ Englishmen _and more particularly at this Time, I wou'd no longer keep back from the Publick, what I more than conjecture will be acceptable to all true Lovers of their Country._ THE TRANSLATOR's PREFACE. Many Books and Papers have been publish'd since the late _Revolution_, tending to justify the Proceedings of the People of _England_ at that happy juncture; by setting in a true Light our just Rights and Liberties, together with the solid Foundations of our _Constitution:_ Which, in truth, is not ours only, but that of almost all _Europe_ besides; so wisely restor'd and establish'd (if not introduced) by the _Goths_ and _Franks_, whose Descendants we are. These Books have as constantly had some things, called _Answers_, written to them, by Persons of different Sentiments; who certainly either never seriously consider'd, that the were thereby endeavouring to destroy their own Happiness, and overthrow her Majesty's Title to the Crown: or (if they knew what they did) presumed upon the _Lenity_ of that Government they decry'd; which (were there no better Reason) ought to have recommended it to their Approbation, since it could patiently bear with such, as were doing all they could to undermine it. Not to mention the Railing, Virulency, or personal false Reflections in many of those Answers, (which were always the Signs of a weak Cause, or a feeble Champion) some of them asserted the _Divine Right_ of an _Hereditary Monarch_, and the Impiety of _Resistance_ upon any Terms whatever, notwithstanding any _Authorities_ to the contrary. Others (and those the more judicious) deny'd positively, that sufficient _Authorities_ could be produced to prove, that a _free People_ have a _just Power_ to defend themselves, by opposing their _Prince_, who endeavours to oppress and enslave them: And alledged, that whatever was said or done tending that way, proceeded from a Spirit of _Rebellion_, and _Antimonarchical Principles_. To confute, or convince this last Sort of Arguers (the first not being worthy to have Notice taken of them) I set about translating the _Franco-Gallia_ of that most Learned and Judicious _Civilian_, _Francis Hotoman_; a Grave, Sincere and Unexceptionable Author, even in the Opinion of his Adversaries. This Book gives an Account of the Ancient Free State of above Three Parts in Four of _Europe_; and has of a long time appeared to me so convincing and instructive in those important Points he handles, that I could not be idle whilst it remain'd unknown, in a manner, to _Englishmen_: who, of all People living, have the greatest Reason and Need to be thoroughly instructed in what it contains; as having, on the one hand, the most to lose, and on the other, the least Sense of their Right, to that, which hitherto they seem (at least in a great measure) to have preserv'd. It will be obvious to every Reader, that I have taken no great Pains to write elegantly. What I endeavour at, is as plain a Stile as possible, which on this Occasion I take to be the best: For since the Instruction of Mankind ought to be the principal Drift of all Writers (of History especially); whoever writes to the Capacity of most Readers, in my Opinion most fully answers the End. I am not ignorant, how tiresome and difficult a Piece of Work it is to translate, nor how little valued in the World. My Experience has convinced me, that 'tis more troublesome and teazing than to write and invent at once. The Idiom of the Language out of which one translates, runs so in the Head, that 'tis next to impossible not to fall frequently into it. And the more bald and incorrect the Stile of the Original is, the more shall that of the Translation be so too. Many of the Quotations in this Book are drawn from Priests, Monks, Friars, and Civil Lawyers, who minded more, in those barbarous Ages, the Substance than the Stile of their Writings: And I hope those Considerations may atone for several Faults, which might be found in my Share of this Work. But I desire not to be misunderstood, as if (whilst I am craving Favour for my self) I were making any Apology for such a Number of mercenary Scribblers, Animadverters, and Translators, as pester us in this Age; who generally spoil the good Books which fall into their Hands, and hinder others from obliging the Publick, who otherwise would do it to greater Advantage. I take this Author to be one of those few, that has had the good Luck to escape them; and I make use of this Occasion to declare, that the chief Motive which induces me to send abroad this small Treatise, is a sincere desire of instructing the only Possessors of true Liberty in the World, what Right and Title that have to that Liberty; of what a great Value it is; what Misery follows the Loss of it; how easily, if Care be taken in time, it may be preserv'd: And if this either opens the Eyes, or confirms the honourable Resolutions of any of my worthy Countrymen, I have gained a glorious End; and done that in my Study, which I shou'd have promoted any other way, had I been called to it. I hope to die with the Comfort of believing, that _Old England_ will continue to be a free Country, and _know_ itself to be _such_; that my Friends, Relations and Children, with their Posterity, will inherit their Share of this inestimable Blessing, and that I have contributed my Part to it. But there is one very great Discouragement under which both I, and all other Writers and Translators of Books tending to the acquiring or preserving the publick Liberty, do lie; and that is, the heavy Calumny thrown upon us, that we are all _Commonwealth's-Men_: Which (in the ordinary Meaning of the Word) amounts to _Haters_ of _Kingly_ Government; now without broad, malicious Insinuations, that we are no great Friends of the present. Indeed were the _Laity_ of our Nation (as too many of our _Clergy_ unhappily are) to be guided by the Sense of one of our Universities, solemnly and publickly declared by the burning of Twenty seven Propositions (some of them deserving that Censure, but others being the very Foundation of all our Civil Rights;) I, and many like me, would appear to be very much in the wrong. But since the _Revolution_ in Eighty-eight, that we stand upon another and a better Bottom, tho no other than our own old one, 'tis time that our _Notions_ should be suited to our _Constitution_. And truly, as Matters stand, I have often wondred, either how so many of our Gentlemen, educated under such Prejudices, shou'd retain any Sense at all of Liberty, for _the hardest Lesson is to unlearn_; [Footnote: St. Chrysostom] or how an Education so diametrically opposite to our Bill of Rights, shou'd be so long encouraged. Methinks a _Civil Test_ might be contrived, and prove very convenient to distinguish those that own the _Revolution Principles_, from such as Tooth and Nail oppose them; and at the same time do fatally propagate Doctrines, which lay too heavy a Load upon _Christianity_ it self, and make us prove our own Executioners. The Names of _Whig_ and _Tory_ will, I am afraid, last as long among us, as those of _Guelf_ and _Ghibelline_ did in _Italy_. I am sorry for it: but to some they become necessary for Distinction Sake; not so much for the Principles formerly adapted to each Name, as for particular and worse Reasons. For there has been such chopping and changing both of Names and Principles, that we scarce know who is who. I think it therefore necessary, in order to appear in my own Colours, to make a publick Profession of my _Political Faith_; not doubting but it may agree in several Particulars with that of many worthy Persons, who are as undeservedly aspers'd as I am. My Notion of a _Whig_, I mean of a real _Whig_ (for the Nominal are worse than any Sort of Men) is, That he is one who is exactly for keeping up to the Strictness of the true old _Gothick Constitution_, under the _Three Estates_ of _King_ (or _Queen_) _Lords_ and _Commons_; the _Legislature_ being seated in all Three together, the _Executive_ entrusted with the first, but accountable to the whole Body of the People, in Case of Male Administration. A true _Whig_ is of Opinion, that the Executive Power has as just a Title to the _Allegiance_ and Obedience of the Subject, according to the _Rules of known Laws enacted by the Legislative_, as the _Subject_ has to _Protection, Liberty_ and _Property_: And so on the contrary. A true _Whig_ is not afraid of the Name of a _Commonwealthsman_, because so many foolish People, who know not what it means, run it down: The _Anarchy_ and _Confusion_ which these Nations fell into near Sixty Years ago, and which was _falsly_ called a _Commonwealth_, frightning them out of the true Construction of the Word. But Queen _Elizabeth_, and many other of our best Princes, were not scrupulous of calling our Government a _Commonwealth_, even in their solemn Speeches to _Parliament_. And indeed if it be not one, I cannot tell by what Name properly to call it: For where in the very _Frame_ of the _Constitution_, the Good of the _Whole_ is taken care of by the _Whole_ (as 'tis in our Case) the having a _King_ or _Queen_ at the Head of it, alters not the Case; and the softning of it by calling it a _Limited Monarchy_, seems a Kind of Contradiction in Terms, invented to please some weak and doubting Persons. And because some of our _Princes_ in this last Age, did their utmost Endeavour to destroy this Union and Harmony of the _Three Estates_, and to be _arbitrary_ or _independent, they_ ought to be looked upon as the _Aggressors_ upon our Constitution. This drove the other _Two Estates_ (for the Sake of the publick Preservation) into the fatal Necessity of providing for themselves; and when once the Wheel was set a running, 'twas not in the Power of Man to stop it just where it ought to have stopp'd. This is so ordinary in all violent Motions, whether mechanick or political, that no body can wonder at it. But no wise Men approved of the ill Effects of those violent Motions either way, cou'd they have help'd them. Yet it must be owned they have (as often as used, thro an extraordinary Piece of good Fortune) brought us back to our old Constitution again, which else had been lost; for there are numberless Instances in History of a Downfal from a State of _Liberty_ to a _Tyranny_, but very few of a Recovery of _Liberty_ from _Tyranny_, if this last have had any Length of Time to fix it self and take Root. Let all such, who either thro Interest or Ignorance are Adorers of _absolute Monarchs_, say what they please; an _English Whig_ can never be so unjust to his Country, and to right Reason, as not to be of Opinion, that in all Civil Commotions, which Side soever is the _wrongful Aggressor_, is accountable for all the evil Consequences: And thro the Course of his reading (tho my Lord _Clarendon's_ Books be thrown into the Heap) he finds it very difficult to observe, that ever the People of _England_ took up Arms against their _Prince_, but when constrain'd to it by a necessary Care of their _Liberties_ and true _Constitution_. 'Tis certainly as much a _Treason_ and _Rebellion_ against this _Constitution_, and the _known_ Laws, in a _Prince_ to endeavor to break thro them, as 'tis in the _People_ to rise against him, whilst he keeps within their Bounds, and does his Duty. Our Constitution is a Government of _Laws_, not of _Persons. Allegiance_ and _Protection_ are Obligations that cannot subsist separately; when one fails, the other falls of Course. The true Etymology of the word _Loyalty_ (which has been so strangely wrested in the late Reigns) is an entire Obedience to the Prince in all his Commands according to Law; that is, to the _Laws themselves_, to which we owe both an active and passive Obedience. By the old and true Maxim, that _the King can do no Wrong_, nobody is so foolish as to conclude, that he has not Strength to murder, to offer Violence to Women, or Power enough to dispossess a Man wrongfully of his Estate, or that whatever he does (how wicked soever) is just: but the Meaning is, he has no _lawful Power_ to do such Things; and our Constitution considers no _Power_ as _irresistible_, but what is _lawful_. And since _Religion_ is become a great and universal Concern, and drawn into our Government, as it affects every single Man's Conscience; tho my private Opinion, they ought not to be mingled, nor to have any thing to do with each other; (I do not speak of our Church Polity, which is a Part of our State, and dependent upon it) some account must be given of that Matter. _Whiggism_ is not circumscrib'd and confin'd to any one or two of the _Religions_ now profess'd in the World, but diffuses it self among all. We have known _Jews_, _Turks_, nay, some Papists, (which I own to be a great Rarity) very great Lovers of the Constitution and Liberty; and were there rational Grounds to expect, that any Numbers of them cou'd be so, I shou'd be against using Severities and Distinctions upon Account of Religion. For a Papist is not dangerous, nor ought to be ill us'd by any body, because he prays to Saints, believes Purgatory, or the real Presence in the Eucharist, and pays Divine Worship to an Image or Picture (which are the common Topicks of our Writers of Controversy against the Papists;) but because Popery sets up a _foreign Jurisdiction paramount to our Laws_. So that a _real Papist_ can neither be a true _Governor_ of a _Protestant_ Country, nor a true _Subject_, and besides, is the most _Priest-Ridden_ Creature in the World: and (when uppermost) can bear with no body that differs from him in Opinion; little considering, that whosoever is against _Liberty of Mind_, is, in effect, against _Liberty of Body_ too. And therefore all Penal _Acts_ of _Parliament_ for Opinions _purely_ religious, which have no Influence on the _State_, are so many Encroachments upon _Liberty_, whilst those which restrain Vice and Injustice are against _Licentiousness_. I profess my self to have always been a Member of the _Church_ of _England_ and am for supporting it in all its _Honours_, _Privileges_ and _Revenues_: but as a Christian and a _Whig_, I must have Charity for those that differ from me in _religious_ Opinions, whether _Pagans_, _Turks_, _Jews_, _Papists_, _Quakers_, _Socinians_, _Presbyterians_, or others. I look upon _Bigotry_ to have always been the very Bane of human Society, and the Offspring of Interest and Ignorance, which has occasion'd most of the great Mischiefs that have afflicted Mankind. We ought no more to expect to be all of one Opinion, as to the Worship of the _Deity_, than to be all of one Colour or Stature. To stretch or narrow any Man's Conscience to the Standard of our own, is no less a Piece of Cruelty than that of _Procrustes_ the Tyrant of _Attica_, who used to fit his Guests to the Length of his own Iron Bedsted, either by cutting them shorter, or racking them longer. What just Reason can I have to be angry with, to endeavour to curb the natural Liberty, or to retrench the Civil Advantages of an honest Man (who follows the golden Rule, of _doing to others, as he wou'd have others do to him_, and is willing and able to serve the Publick) only because he thinks his Way to Heaven surer or shorter than mine? No body can tell which of us is mistaken, till the Day of Judgment, or whether any of us be so (for there may be different Ways to the same End, and I am not for circumscribing God Almighty's Mercy:) This I am sure of, one shall meet with the same Positiveness in Opinion, in some of the Priests of all these Sects; The same Want of Charity, engrossing Heaven by way of _Monopoly_ to their own _Corporation_, and managing it by a joint Stock, exclusive of all others (as pernicious in Divinity as in trade, and perhaps more) The same Pretences to _Miracles, Martyrs, Inspirations, Merits, Mortifications, Revelations, Austerity, Antiquity_, &c. (as all Persons conversant with History, or that travel, know to be true) and this _cui bono_? I think it the Honour of the Reformed Part of the Christian Profession, and the Church of _England_ in particular, that it pretends to fewer of these unusual and extraordinary Things, than any other Religion we know of in the World; being convinced, that these are not the distinguishing Marks of the Truth of any Religion (I mean, the assuming obstinate Pretences to them are not;) and it were not amiss, if we farther enlarg'd our Charity, when we can do it with Safety, or Advantage to the State. Let us but consider, how hard and how impolitick it is to condemn all People, but such as think of the Divinity just as we do. May not the Tables of Persecution be turn'd upon us? A _Mahometan_ in _Turky_ is in the right, and I (if I carry my own Religion thither) am in the Wrong. They will have it so. If the _Mahometan_ comes with me to _Christendom_, I am in the right, and he in the wrong; and hate each other heartily for differing in Speculations, which ought to have no Influence on Moral Honesty. Nay, the _Mahometan_ is the more charitable of the two, and does not push his Zeal so far; for the Christians have been more cruel and severe in this Point than all the World besides. Surely Reprizals may be made upon us; as _Calvin_ burnt _Servetus_ at _Geneva_, Queen _Mary_ burnt _Cranmer_ at _London_. I am sorry I cannot readily find a more exact Parallel. The Sword cuts with both Edges. Why, I pray you, may we not all be Fellow-Citizens of the World? And provided it be not the Principle of one or more Religions to extirpate all others, and to turn Persecutors when they get Power (for such are not to be endured;) I say, why shou'd we offer to hinder any Man from doing with his own Soul what he thinks fitting? Why shou'd we not make use of his Body, Estate, and Understanding, for the publick Good? Let a Man's Life, Substance, and Liberty be under the Protection of the Laws; and I dare answer for him (whilst his Stake is among us) he will never be in a different Interest, nor willing to quit this Protection, or to exchange it for _Poverty, Slavery_, and _Misery_. The thriving of any one _single Person_ by honest Means, is the Thriving of the _Commonwealth_ wherein he resides. And in what Place soever of the World such Encouragement is given, as that in it one may securely and peaceably enjoy _Property_ and _Liberty_ both of _Mind_ and _Body_; 'tis impossible but that Place must flourish in _Riches_ and in _People_, which are the _truest Riches_ of any Country. But as, on the one hand, a true _Whig_ thinks that all Opinions purely spiritual and notional ought to be indulg'd; so on the other, he is for _severely punishing_ all _Immoralities, Breach_ of _Laws, Violence_ and _Injustice_. A Minister's Tythes are as much his Right, as any Layman's Estate can be his; and no Pretence of Religion or Conscience can warrant the substracting of them, whilst the Law is in Being which makes them payable: For a _Whig_ is far from the Opinion, that they are due by any other Title. It wou'd make a Man's Ears tingle, to hear the _Divine Right_ insisted upon for any _human Institutions_; and to find God _Almighty_ brought in as a Principal there, where there is no Necessity for it. To affirm, that _Monarchy, Episcopacy, Synods, Tythes_, the _Hereditary Succession_ to the _Crown_, &c. are _Jure Divino_; is to cram them down a Man's Throat; and tell him in plain Terms, that he must submit to any of them under all Inconveniencies, whether the Laws of his Country are for it or against it. Every _Whig_ owns _Submission_ to Government to be an _Ordinance_ of God. _Submit your selves to every Ordinance of Man, for the Lord's Sake_, says the Apostle. Where (by the way) pray take notice, he calls them _Ordinances of Man_; and gives you the true Notion, how far any thing can be said to be _Jure Divino_: which is far short of what your high-flown Assertors of the _Jus Divinum_ wou'd carry it, and proves as strongly for a _Republican_ Government as a _Monarchical_; tho' in truth it affects neither, where the very Ends of Government are destroyed. A right _Whig_ looks upon _frequent Parliaments_ as such a _fundamental_ Part of the Constitution, that even no _Parliament_ can part with this Right. _High Whiggism_ is for _Annual_ Parliaments, and _Low Whiggism_ for _Triennial_, with annual Meetings. I leave it to every Man's Judgment, which of these wou'd be the truest Representative; wou'd soonest ease the House of that Number of Members that have Offices and Employments, or take Pensions from the Court; is least liable to Corruption; wou'd prevent exorbitant Expence, and soonest destroy the pernicious Practice of drinking and bribing for Elections, or is most conformable to ancient Custom. The Law that lately pass'd with so much Struggle for _Triennial_ Parliaments shall content me, till the _Legislative_ shall think fit to make them _Annual_. But methinks (and this I write with great Submission and Deference) that (since the passing that Act) it seems inconsistent with the Reason of the thing, and preposterous, for the _first_ Parliament after any Prince's _Accession_ to the _Crown_, to give the publick Revenue _arising by Taxes_, for a longer time than that _Parliament's own Duration_. I cannot see why the Members of the _first_ Parliament shou'd (as the Case now stands) engross to themselves all the Power of giving, as well as all the Merit and Rewards due to such a Gift: and why _succeeding_ Parliaments shou'd not, in their turn, have it in their Power to oblige the Prince, or to streighten him, if they saw Occasion; and pare his Nails, if they were convinced he made _ill Use_ of such a _Revenue_. I am sure we have had Instances of this Kind; and a wise Body of Senators ought always to provide against the worst that might happen. The _Honey-Moon_ of _Government_ is a dangerous Season; the Rights and Liberties of the People run a greater Risk at that time, thro their own Representatives Compliments and Compliances, than they are ever likely to do during that Reign: and 'tis safer to break this Practice, when we have the Prospect of a good and gracious Prince upon the Throne, than when we have an inflexible Person, who thinks every Offer an Affront, which comes not up to the Height of what his Predecessor had, without considering whether it were well or ill done at first. The Revenues of our Kings, for many Ages, arose out of their _Crown-Lands_; Taxes on the Subject were raised only for publick Exigencies. But since we have turn'd the Stream, and been so free of Revenues for Life, arising from _Impositions_ and _Taxes_, we have given Occasion to our Princes to dispose of their _Crown-Lands_; and depend for Maintenance of their Families on such a Sort of Income, as is thought unjust and ungodly in most Parts of the World, but in _Christendom_: for many of the arbitrary _Eastern_ Monarchs think so, and will not eat the Produce of such a Revenue. Now since Matters are brought to this pass, 'tis plain that our Princes must subsist suitable to their high State and Condition, in the best manner we are able to provide for them. And whilst the _Calling_ and _Duration_ of Parliaments was _precarious_, it might indeed be an _Act of Imprudence_, tho not of _Injustice_, for any _one Parliament_ to settle such a Sort of _Revenue_ for Life on the Prince: But at present, when all the World knows the _utmost Extent_ of a Parliament's _possible_ Duration, it seems disagreeable to Reason, and an Encroachment upon the Right of _succeeding_ Parliaments (for the future) for any _one Parliament_ to do that which _another_ cannot undo, or has not Power to do in its turn. An Old _Whig_ is for chusing such Sort of _Representatives_ to serve in Parliament, as have _Estates_ in the Kingdom; and those not fleeting ones, which may be sent beyond Sea by Bills of Exchange by every Pacquet-Boat, but fix'd and permanent. To which end, every Merchant, Banker, or other money'd Man, who is ambitious of serving his Country as a _Senator_, shou'd have also a competent, visible _Land Estate_, as a Pledge to his _Electors_ that he intends to abide by them, and has the same Interest with theirs in the publick Taxes, Gains and Losses. I have heard and weigh'd the Arguments of those who, in Opposition to this, urged the Unfitness of such, whose Lands were engaged in Debts and Mortgages, to serve in Parliament, in comparison with the _mony'd Man_ who had no _Land:_ But those Arguments never convinced me. No Man can be a sincere Lover of Liberty, that is not for increasing and communicating that Blessing to all People; and therefore the giving or restoring it not only to our Brethren of _Scotland_ and _Ireland_, but even to _France_ it self (were it in our Power) is one of the principal Articles of _Whiggism_. The Ease and Advantage which wou'd be gain'd by _uniting_ our own Three Kingdoms upon equal Terms (for upon unequal it wou'd be no _Union_) is so visible, that if we had not the Example of those Masters of the World, the _Romans_, before our Eyes, one wou'd wonder that our own Experience (in the Instance of uniting _Wales_ to _England_) shou'd not convince us, that altho both Sides wou'd incredibly gain by it, yet the rich and opulent Country, to which such an Addition is made, wou'd be the greater Gainer. 'Tis so much more desirable and _secure_ to govern by _Love_ and _common Interest_, than by _Force_; to expect _Comfort_ and _Assistance_, in Times of Danger, from our next Neighbours, than to find them at such a time a _heavy Clog_ upon the Wheels of our Government, and be in dread lest they should take that Occasion to shake off an uneasy Yoak: or to have as much need of entertaining a _standing_ Army against our _Brethren_, as against our known and inveterate _Enemies_; that certainly whoever can oppose so publick and apparent Good, must be esteem'd either _ignorant_ to a strange Degree, or to have _other_ Designs in View, which he wou'd willingly have brought to Light. I look upon her Majesty's asserting the Liberties and Privileges of the _Free Cities_ in _Germany_, an Action which will shine in History as bright (at least) as her giving away her first Fruits and Tenths: To the Merit of which last, some have assumingly enough ascribed all the Successes she has hitherto been blessed with; as if _one Set of Men_ were the _peculiar_ Care of Providence and all others (even _Kings_ and _Princes_) were no otherwise fit to be considered by _God Almighty_, or Posterity, than according to their _Kindness_ to them. But it has been generally represented so, where Priests are the Historians. From the first Kings in the World down to these Days, many Instances might be given of very wicked Princes, who have been extravagantly commended; and many excellent ones, whose Memories lie overwhelmed with Loads of Curses and Calumny, just as they proved Favourers or Discountenancers of High-Church, without regard to their other Virtues or Vices: for High-Church is to be found in all Religions and Sects, from the Pagan down to the Presbyterian; and is equally detrimental in every one of them. A Genuine _Whig_ is for promoting a _general Naturalization_, upon the firm Belief, that whoever comes to be incorporated into us, feels his Share of all our Advantages and Disadvantages, and consequently can have no Interest but that of the Publick; to which he will always be a Support to the best of his Power, by his _Person, Substance_ and _Advice_. And if it be a Truth (which few will make a Doubt of) that we are not one _third_ Part peopled (though we are better so in Proportion than any other Part of _Europe, Holland_ excepted) and that our Stock of Men decreases daily thro our Wars, Plantations, and Sea-Voyages; that the ordinary Course of Propagation (even in Times of continued Peace and Health) cou'd not in many Ages supply us with the Numbers we want; that the Security of Civil and Religious Liberty, and of Property, which thro God's great Mercy is firmly establish'd among us, will invite new Comers as fast as we can entertain them; that most of the rest of the World groans under the Weight of _Tyranny_, which will cause all that have Substance, and a Sense of Honour and Liberty, to fly to Places of Shelter; which consequently would thoroughly people us with useful and profitable Hands in a few Years. What should hinder us from an Act of _General Naturalization_? Especially when we consider, that no _private_ Acts of that Kind are refused; but the Expence is so great, that few attempt to procure them, and the Benefit which the Publick receives thereby is inconsiderable. Experience has shown us the Folly and Falsity of those plausible Insinuations, that such a Naturalization would take the Bread out of _Englishmen's_ Mouths. We are convinced, that the greater Number of Workmen of one Trade there is in any Town, the more does that Town thrive; the greater will be the _Demand_ of the Manufacture, and the _Vent_ to foreign Parts, and the quicker _Circulation_ of the _Coin_. The Consumption of the _Produce_ both of _Land_ and _Industry_ increases visibly in Towns full of People; nay, the more shall every particular industrious Person thrive in such a Place; tho indeed _Drones_ and _Idlers_ will not find their Account, who wou'd fain support their own and their Families superfluous Expences at their Neighbour's Cost; who make one or two Day's Labour provide for four Days Extravagancies. And this is the common Calamity of most of our _Corporation Towns_, whose Inhabitants do all they can to discourage Plenty, Industry and Population; and will not admit of Strangers but upon too hard Terms, thro the false Notion, that they themselves, their Children and Apprentices, have the only Right to squander their Town's Revenue, and to get, at their own Rates, all that is to be gotten within their Precincts, or in the Neighbourhood. And therefore such Towns (through the Mischief arising by _Combinations_ and _By-Laws_) are at best at a Stand; very few in a thriving Condition (and those are where the _By-Laws_ are least _restrictive_) but _most_ throughout _England_ fall to visible Decay, whilst new Villages _not_ incorporated, or more liberal of their Privileges, grow up in their stead; till, in Process of Time, the first Sort will become almost as desolate as _Old Sarum_, and will as well deserve to lose their Right of sending Representatives to Parliament. For certainly a _Waste_ or a _Desert_ has no Right to be represented, nor by our original Constitution was ever intended to be: yet I would by no means have those Deputies lost to the Commons, but transferr'd to wiser, more industrious, and better peopled Places, worthy (thro their Numbers and Wealth) of being represented. A _Whig_ is against the raising or keeping up a _Standing Army_ in Time of Peace: but with this Distinction, that if at any time an _Army_ (tho even in Time of Peace) shou'd be necessary to the Support of this very Maxim, a _Whig_ is not for being too hasty to destroy that which is to be the Defender of his Liberty. I desire to be well understood. Suppose then, that Persons, whose known Principle and Practice it has been (during the Attempts for arbitrary Government) to plead for and promote such an Army in Time of Peace, as wou'd be subservient to the Will of a Tyrant, and contribute towards the enslaving the Nation; shou'd, under a _legal Government_ (yet before the _Ferment_ of the People was appeas'd) cry down a _Standing Army_ in Time of Peace: I shou'd shrewdly suspect, that the Principles of such Persons are not changed, but that either they like not the Hands that _Army_ is in, or the _Cause_ which it espouses; and look upon it as an Obstruction to _another_ Sort of Army, which they shou'd like _even in Time of Peace_. I say then, that altho the Maxim in general be certainly _true_, yet a _Whig_ (without the just Imputation of having deserted his Principles) may be for the _keeping_ up such a Standing Army even in Time of Peace, till the Nation have recover'd its _Wits_ again, and chuses Representatives who are against _Tyranny in any Hands whatsoever_; till the Enemies of our Liberties want the Power of raising _another_ Army of _quite different Sentiments_: for till that time, a _Whiggish_ Army is the _Guardian of our Liberties_, and secures to us the Power of _disbanding its self_, and prevents the raising of another of a _different Kidney_. As soon as this is done effectually, by my Consent, no such thing as a mercenary Soldier should subsist in _England_. And therefore The _arming_ and _training_ of all the _Freeholders_ of _England_, as it is our undoubted ancient Constitution, and consequently our Right; so it is the Opinion of most _Whigs_, that it ought to be put in Practice. This wou'd put us out of all Fear of foreign Invasions, or disappoint any such when attempted: This wou'd soon take away the Necessity of maintaining _Standing_ Armies of _Mercenaries_ in Time of Peace: This wou'd render us a hundred times more formidable to our Neighbours than we are; and secure effectually our Liberties against any _King_ that shou'd have a mind to invade them at home, which perhaps was the Reason some of our late _Kings_ were so averse to it: And whereas, as the Case now stands, Ten Thousand disciplin'd Soldiers (once landed) might march without _considerable_ Opposition from one End of _England_ to the other; were our _Militia_ well regulated, and _Fire-Arms_ substituted in the Place of _Bills, Bows_, and _Arrows_ (the Weapons in Use when our _training Laws_ were in their Vigor, and for which our Laws are yet in Force) we need not fear a Hundred Thousand Enemies, were it possible to land so many among us. At every Mile's End, at every River and Pass, the Enemy wou'd meet with fresh Armies, consisting of Men as well skill'd in military Discipline as themselves; and more resolv'd to fight, because they do it for Property: And the farther such an Enemy advanced into the Country, the stronger and more resolved he wou'd find us; as _Hanibal_ did the _Romans_, when he encamped under the Walls of _Rome_, even after such a Defeat as that at _Cannæ_. And why? Because they were all _train'd_ Soldiers, they were all _Freemen_ that fought _pro aris & focis_: and scorn'd to trust the Preservation of their Lives and Fortunes to _Mercenaries_ or _Slaves_, tho never so able-body'd: They thought Weapons became not the Hands of such as had nothing to lose, and upon that Account were unfit Defenders of their Masters Properties; so that they never tried the Experiment but in the _utmost Extremity_. That this is not only practicable but easy, the modern Examples of the _Swissers_ and _Swedes_ is an undeniable Indication. _Englishmen_ have as much _Courage_, as great _Strength of Body_, and _Capacity of Mind_, as any People in the Universe: And if our late _Monarchs_ had the _enervating_ their free Subjects in View, that they might give a Reputation to _Mercenaries_, who depended only on the _Prince_ for their Pay (as 'tis plain they had) I know no Reason why their Example shou'd be followed in the Days of _Liberty_, when there is no such Prospect. The Preservation of the _Game_ is but a very slender Pretence for omitting it. I hope no wise Man will put a _Hare_ or a _Partridge_ in Balance with the _Safety_ and _Liberties_ of _Englishmen_; tho after all, 'tis well known to Sportsmen, that Dogs, Snares, Nets, and such silent Methods as are daily put in Practice, destroy the Game ten times more than shooting with Guns. If the restoring us to our Old Constitution in this Instance were ever necessary, 'tis more eminently so at this time, when our next Neighbours of _Scotland_ are by Law armed just in the manner we desire to be, and the _Union_ between both Kingdoms not perfected. For the _Militia_, upon the Foot it now stands, will be of little Use to us: 'tis generally compos'd of Servants, and those not always the same, consequently not well train'd; rather such as wink with both Eyes at their own firing a Musket, and scarce know how to keep it clean, or to charge it aright. It consists of People whose Reputation (especially the _Officers_) has been industriously diminished, and their Persons, as well as their Employment, rendred contemptible on purpose to enhance the Value of those that serve for Pay; insomuch that few Gentlemen of Quality will now a-days debase themselves so much, as to accept of a Company, or a Regiment in the _Militia_. But for all this, I can never be persuaded that a _Red Coat_, and _Three Pence_ a Day, infuses more Courage into the poor _Swaggering Idler_, than the having a Wife and Children, and an Estate to fight for, with good wholsome Fare in his Kitchen, wou'd into a _Free-born_ Subject, provided the _Freeman_ were as well armed and trained as the _Mercenary_. I wou'd not have the _Officers_ and _Soldiers_ of our most Brave and Honest _Army_ to mistake me. I am not arguing against them; for I am convinced, as long as there is Work to do abroad, 'tis they (and not our home dwelling _Freeholders_) are most proper for it. Our War must now be an _Offensive_ War; and what I am pleading for, concerns only the bare _Defensive_ Part. Most of our present Generals and Officers are fill'd with the true Sprit of Liberty (a most rare thing) which demonstrates the Felicity of her Majesty's Reign, and her standing upon a true Bottom, beyond any other Instance that can be given; insomuch, that considering how great and happy we have been under the Government of _Queens_, I have sometimes doubted, whether an _Anti-Salick Law_ wou'd be to our Disadvantage. Most of these _Officers_ do expect, nay (so true do I take them to be to their Country's Interest) do wish, whenever it shall please God to send us such a Peace as may be relied upon both at home and abroad, to return to the State of _peaceable Citizens_ again; but 'tis fit they should do so, with such ample Rewards for their Blood and Labours, as shall entirely satisfy them. And when they, or the Survivors of them, shall return full of Honour and Scars home to their Relations, after the Fatigues of so glorious a Service to their Country are ended; 'tis their Country's Duty to make them easy, without laying a Necessity upon them of striving for the Continuance of an _Army_ to avoid _starving_. The _Romans_ used to content them by a Distribution of their Enemies Lands; and I think their Example so good in every thing, that we could hardly propose a better. _Oliver Cromwell_ did the like in _Ireland_, to which we owe that Kingdom's being a Protestant Kingdom at this Day, and its continuing subject to the Crown of _England_; but if it be too late to think of this Method now, some other must be found out by the Wisdom of _Parliament_, which shall fully answer the End. These Officers and Soldiers thus settled and reduced to a _Civil State_, wou'd, in a great measure, compose that invincible _Militia_ I am now forecasting; and by reason of their Skill in military Affairs, wou'd deserve the principal Posts and Commands in their respective Counties: With this advantageous Change of their Condition, that whereas formerly they fought for their Country only as _Soldiers_ of _Fortune_, now they shou'd defend it as wise and valiant _Citizens_, as _Proprietors_ of the Estates they fight for; and this will gain them the entire Trust and Confidence of all the good People of _England_, who, whenever they come to know their own Minds, do heartily hate _Slavery_. The Manner and Times of assembling, with several other necessary Regulations, are only proper for the _Legislative_ to fix and determine. A right _Whig_ lays no Stress upon the _Illegitimacy_ of the _pretended Prince_ of _Wales_; he goes upon another Principle than they, who carry the _Right of Succession_ so far, as (upon that Score), to undo all Mankind. He thinks no Prince fit to govern, whose Principle it must be to _ruin_ the Constitution, as soon as he can acquire unjust Power to do so. He judges it Nonsense for one to be the _Head of a Church_, or _Defender of a Faith_, who thinks himself bound in Duty to overthrow it. He never endeavours to justify his taking the Oaths to this Government, or to quiet his Conscience, by supposing the young _Gentleman_ at _St. Germains_ unlawfully begotten; since, 'tis certain, that according to our Law he cannot be looked upon as such. He cannot satisfy himself with any of the foolish Distinctions trump'd up of late Years to reconcile base Interest with a Show of Religion; but deals upon the Square, and plainly owns to the World, that he is not influenc'd by any particular Spleen: but that the Exercise of an _Arbitrary, Illegal Power_ in the Nation, so as to undermine the Constitution, wou'd incapacitate either King _James_, King _William_, or any other, from being his _King_, whenever the _Publick_ has a Power to hinder it. As a necessary Consequence of this Opinion, a _Whig_ must be against _punishing the Iniquity of the Fathers upon the Children_, as we do (not only to the _Third_ and _Fourth Generation_, but) _for ever_: since our gracious God has declared, that he will no more pursue such severe Methods in his Justice, but that _the Soul that sinneth it shall die_. 'Tis very unreasonable, that frail Man, who has so often need of Mercy, shou'd pretend to exercise higher Severities upon his _Fellow-Creatures_, than that Fountain of Justice on his most wicked _revolting Slaves_. To corrupt the Blood of a whole _Family_, and send _all_ the Offspring a begging after the Father's Head is taken off, seems a strange Piece of Severity, fit to be redressed in Parliament; especially when we come to consider, for what Crime this has been commonly done. When Subjects take Arms against their _Prince_, if their Attempt succeeds, 'tis a _Revolution_; if not, 'tis call'd a _Rebellion_: 'tis seldom consider'd, whether the first Motives be just or unjust. Now is it not enough, in such Cases, for the prevailing Party to hang or behead the _Offenders_, if they can catch them, without extending the Punishment to _innocent Persons_ for _all Generations_ to come? The Sense of this made the late _Bill of Treasons_ (tho it reach'd not so far as many wou'd have had it) a Favourite of the _Old Whigs_; they thought it a very desirable one whenever it cou'd be compass'd, and perhaps if not at that very Juncture, wou'd not have been obtained all: 'twas necessary for Two different Sorts of People to unite in this, in order for a Majority, whose Weight shou'd be sufficient to enforce it. And I think some _Whigs_ were very unjustly reproach'd by their _Brethren_, as if by voting for this Bill, they wilfully exposed the late _King's_ Person to the wicked Designs of his Enemies. _Lastly_, The supporting of Parliamentary Credit, promoting of all _publick Buildings_ and _Highways_, the making all _Rivers Navigable_ that are capable of it, employing the _Poor_, suppressing _Idlers_, restraining _Monopolies_ upon Trade, maintaining the liberty of the _Press_, the just _paying_ and _encouraging_ of all in the publick Service, especially that best and usefullest Sort of People the _Seamen_: These (joined to a firm Opinion, that we ought not to hearken to any _Terms of Peace_ with the _French King_, till it be quite out of his Power to hurt us, but rather to dye in Defence of our _own_ and the _Liberties_ of _Europe_) are all of them Articles of my _Whiggish Belief_, and I hope none of them are _heterodox_. And if all these together amount to a _Commonwealthsman_, I shall never be asham'd of the Name, tho given with a Design of fixing a Reproach upon me, and such as think as I do. Many People complain of the Poverty of the Nation, and the Weight of the Taxes. Some do this without any ill Design, but others hope thereby to become _popular_; and at the same time to _enforce a Peace_ with _France_, before that Kingdom be reduced to too low a Pitch: fearing, lest that _King_ shou'd be _disabled_ to accomplish their Scheme of bringing in the _Pretender_, and assisting him. Now altho 'tis acknowledg'd, that the _Taxes_ lye very heavy, and _Money_ grows scarce; yet let the _Importance_ of our _War_ be considered, together with the _Obstinacy, Perfidy_, and _Strength_ of our Enemy, can we possibly carry on such a _diffusive_ War without _Money_ in Proportion? Are the _Queen's_ Subjects more burden'd to maintain the publick _Liberty_, than the _French_ King's are to confirm their own _Slavery_? Not so much by three Parts in four, God be prais'd: Besides, no true _Englishman_ will grudge to pay Taxes whilst he has a Penny in his Purse, as long as he sees the Publick Money well laid out for the great Ends for which 'tis given. And to the Honour of the Queen and her Ministers it may be justly said, That since _England_ was a Nation, never was the publick Money more frugally managed, or more fitly apply'd. This is a further Mortification to those _Gentlemen_, who have _Designs_ in View which they dare not own: For whatever may be, the _plausible_ and _specious_ Reasons they give in publick, when they exclaim against the Ministry; the hidden and true one is, that thro the present prudent Administration, their so hopefully-laid Project is in Danger of being blown quite up; and they begin to despair that they shall bring in King _James_ the Third by the Means of Queen _Anne_, as I verily believe they once had the Vanity to imagine. INDEX OF THE CHAPTERS * * * * * CHAP. I. _The State of_ Gaul _before it was reduced into the Form of a_ Roman _Province_. CHAP. II. _Probable Conjectures concerning the Ancient Language of the_ Gauls. CHAP. III. _The State of_ Gaul, _after it was reduced into the Form of a Province by the_ Romans. CHAP. IV. _Of the Original of the_ Franks, _who having possessed themselves of_ Gallia, _changed its Name into that of_ Francia, _or_ Francogallia. CHAP. V. _Of the Name of the_ Franks, _and their sundry Excursions; and what time they first began to establish a Kingdom in_ Gallia. CHAP. VI. _Whether the Kingdom of_ Francogallia _was_ Hereditary _or_ Elective; _and the Manner of making its_ Kings. CHAP. VII. _What Rule was observed concerning the_ Inheritance _of the Deceased King, when he left more Children than one_. CHAP. VIII. _Of the_ Salick _Law, and what Right Women had in the Kings, their Father's Inheritance_. CHAP. IX. _Of the Right of Wearing a large_ Head of Hair _peculiar to the_ Royal Family. CHAP. X. _The_ Form _and_ Constitution _of the_ Francogallican _Government_. CHAP. XI. _Of the_ Sacred Authority _of the_ Publick Council. CHAP. XII. _Of the Kingly Officers, commonly called_ Mayors _of the_ Palace. CHAP. XIII. _Whether_ Pipin _was created King by the_ Pope, _or by the Authority of the_ Francogallican _Council_. CHAP. XIV. _Of the_ Constable _and Peers of_ France. CHAP. XV. _Of the continued_ Authority _and Power of the_ Sacred Council, _during the Reign of the_ Carlovingian _Family_. CHAP. XVI. _Of the_ Capevingian _Race, and the Manner of its obtaining the Kingdom of_ Francogallia. CHAP. XVII. _Of the_ uninterrupted Authority _of the_ Publick Council, _during the_ Capevingian _Line_. CHAP. XVIII. _Of the Remarkable_ Authority _of the_ Council _against_ Lewis _the Eleventh_. CHAP. XIX. _Of the Authority of the Assembly of the_ States, _concerning the most important Affairs of Religion_. CHAP. XX. _Whether_ Women _are not as much debarr'd by the_ Francogallican _Law from the_ Administration, _as from the_ Inheritance _of the Kingdom_. CHAP. XXI. _Of the_ Juridical Parliaments _in_ France. * * * * * A Short EXTRACT OF THE LIFE OF Francis Hotoman, Taken out of Monsieur _Bayle's_ Hist. Dict. and other Authors. _Francis Hotoman_ (one of the most learned Lawyers of that Age) was Born at _Paris_ the 23d of _August_, 1524. His Family was an Ancient and Noble one, originally of _Breslaw_, the Capital of _Silesia_. _Lambert Hotoman_, his Grandfather, bore Arms in the Service of _Lewis_ the 11th of _France_, and married a rich Heiress at _Paris_, by whom he had 18 Children; the Eldest of which (_John Hotoman_) had so plentiful an Estate, that he laid down the Ransom-Money for King _Francis_ the First, taken at the Battel of _Pavia_: _Summo galliæ bono, summâ cum suâ laude_, says _Neveletus_, _Peter Hotoman_ his 18th Child, and [Footnote: _Maistre des Eaux & Forrests._] _Master of the Waters and Forests_ of _France_ (afterwards a Counsellor in the Parliament of _Paris_) was Father to _Francis_, the _Author_ of this Book. He sent his Son, at 15 Years of Age, to _Orleans_ to study the _Common Law_; which he did with so great Applause, that at Three Years End he merited the Degree of Doctor. His Father designing to surrender to him his Place of Counsellor of _Parliament_, sent for him home: But the young Gentleman was soon tired with the Chicane of the Bar, and plung'd himself deep in the Studies of [Footnote: _Les belles Lettres._] _Humanity_ and the _Roman Laws_; for which he had a wonderful Inclination. He happen'd to be a frequent Spectator of the Protestants Sufferings, who, about that Time, had their Tongues cut out, were otherwise tormented, and burnt for their Religion. This made him curious to dive into those Opinions, which inspired so much Constancy, Resignation and Contempt of Death; which brought him by degrees to a liking of them, so that he turn'd Protestant. And this put him in Disgrace with his father, who thereupon disinherited him; which forced him at last to quit _France_, and to retire to _Lausanne_ in _Swisserland_ by _Calvin_'s and _Beza_'s Advice; where his great Merit and Piety promoted him to the Humanity-Professor's Chair, which he accepted of for a Livelihood, having no Subsistance from his Father. There he married a young _French_ Lady, who had fled her Country upon the Score of Religion: He afterwards remov'd to _Strasburg_, where he also had a Professor's Chair. The Fame of his great Worth was so blown about, that he was invited by all the great Princes to their several Countries, particularly by the _Landgrave_ of _Hesse_, the _Duke_ of _Prussia_, and the _King_ of _Navarre_; and he actually went to this last about the Beginning of the Troubles. Twice he was sent as Ambassador from the Princes of the Blood of _France_, and the Queen-Mother, to demand Assistance of the Emperor _Ferdinand:_ The Speech that he made at the Diet of _Francfort_ is still extant. Afterwards he returned to _Strasburg_; but _Jean de Monluc_, the Bishop of _Valence_, over-persuaded him to accept of the Professorship of Civil Law at _Valence_; of which he acquitted himself so well, that he very much heighten'd the Reputation of that University. Here he received two Invitations from _Margaret_ Dutchess of _Berry_, and Sister to _Henry_ the Second of _France_, and accepted a Professor's Chair at _Bourges_; but continued in it no longer than five Months, by reason of the intervening Troubles. Afterwards he returned to it, and was there at the time of the great _Parisian_ Massacre, having much-a-do to escape with his Life; but having once got out of _France_ (with a firm Resolution never to return thither again) he took Sanctuary in the House of _Calvin_ at _Geneva_, and publish'd Books against the Persecution, so full of Spirit and good Reasoning, that the Heads of the contrary Party made him great Offers in case he wou'd forbear Writing against them; but he refused them all, and said, The Truth shou'd never be betray'd or forsaken by him. _Neveletus_ says, "That his Reply to those that wou'd have tempted him, was this: _Nunquam sibi propugnatam causam quæ iniqua esset: Nunquam quæ jure & legibus niteretur desertam præmiorum spe vel metu periculi._"--He afterwards went to _Basel_ in _Swisserland_, and from thence (being driven away by the Plague) to _Mountbelliard_, where he buried his Wife. He returned then to _Basel_ (after having refused a Professor's Chair at _Leyden_) and there he died of a Dropsy in the 65th Year of his Age, the 12th of _February_, 1590. He writ a great many learned Books, which were all of them in great Esteem; and among them an excellent Book _de Consolatione_. His _Francogallia_ was his own Favourite; tho' blamed by several others, who were of the contrary Opinion: Yet even these who wrote against him do unanimously agree, that he had a World of Learning, and a profound Erudition. He had a thorough Knowledge of the Civil Law, which he managed with all the Eloquence imaginable; and was, without dispute, one of the ablest Civilians that _France_ had ever produced: This is _Thuanus_ and _Barthius_'s Testimony of him. Mr. _Bayle_ indeed passes his Censure of this Work in the Text of his Dictionary, in these Words: "_Sa Francogallia dont il faisoit grand etat est celuy de tous ses ecrits que l'on aprouve le moins:_"--and in his Commentary adds, "_C'est un Ouvrage recommendable du costè de l'Erudition; mais tres indigne d'un jurisconsulte Francois, si l'on en croit mesme plusieurs Protestants._" I wou'd not do any Injury to so great a Man as Monsieur _Bayle_; but every one that is acquainted with his Character, knows that he is more a Friend to Tyranny and Tyrants, than seems to be consistent with so free a Spirit. He has been extremely ill used, which sowres him to such a degree, that it even perverts his Judgment in some measure; and he seems resolved to be against Monsieur _Jurieu_, and that Party, in every thing, right or wrong. Whoever reads his Works, may trace throughout all Parts of them this Disposition of Mind, and see what sticks most at his Heart. So that he not only loses no Occasion, but often forces one where it seems improper and unseasonable, to vent his Resentments upon his Enemies; who surely did themselves a great deal more wrong in making him so, than they did him. 'Tis too true, that they did all they cou'd to starve him; and this great Man was forced to write in haste for Bread; which has been the Cause that some of his Works are shorter than he design'd them; and consequently, that the World is deprived of so much Benefit, as otherwise it might have reap'd from his prodigious Learning, and Force of Judgment. One may see by the first Volume of his Dictionary, which goes through but two Letters of the Alphabet, that he forecasted to make that Work three times as large as it is, cou'd he have waited for the Printer's Money so long as was requisite to the finishing it according to his first Design. Thus much I thought fit to say, in order to abate the Edge of what he seems to speak hardly of the _Francogallia_; tho' in several other Places he makes my Author amends: And one may without scruple believe him, when he commends a Man, whose Opinion he condemns. For this is the Character he gives of this Work: _"C'est au fond un bel Ouvrage, bien ecrit, & bien rempli d'erudition: Et d'autant plus incommode au partie contraire que l'Auteur se contente de citer des faits."_ Can any thing in the World be a greater Commendation of a Work of this Nature, than to say it contains only pure Matter of Fact? Now if this be so, Monsieur _Bayle_ wou'd do well to tell us what he means by those Words, _Tres indigne d'un jurisconsulte Francois_. Whether a _French_ Civilian be debarr'd telling of Truth (when that Truth exposes Tyranny) more than a Civilian of any other Nation? This agrees, in some measure, with Monsieur _Teissier_'s Judgment of the _Francogallia_, and shews, that Monsieur _Bayle_, and Monsieur _Teissier_ and _Bongars_, were _Bons Francois_ in one and the same Sense. "_Son Livre intitulè, Francogallia, luy attira AVEC RAISON_ (and this he puts in great Letters) _les blame des bons Francois_. For (says he) therein he endeavours to prove, That _France_, the most flourishing Kingdom in _Christendom_, is not successive, like the Estates of particular Persons; but that anciently the Kings came to the Crown by the Choice and Suffrages of the Nobility and People; insomuch, that as in former Times the Power and Authority of _Electing_ their Kings belonged to the _Estates of the Kingdom_, so likewise did the Right of _Deposing_ their _Princes_ from their Government. And hereupon he quotes the Examples of _Philip de Valois_, of _King John_, _Charles the Fifth_, and _Charles the Sixth_, and _Lewis the Eleventh_: But what he principally insists on, is to show, That as from Times Immemorial, the _French_ judg'd Women incapable of Governing; So likewise ought they to be debarr'd from all Administration of the Publick Affairs." This is Mr. _Boyle_'s Quotation of _Teissier_, by which it appears how far _Hotoman_ ought to be blamed by all _true Frenchmen, AVEC RAISON_. But provided that _Hotoman_ proves irrefragably all that he says (as not only Monsieur _Bayle_ himself, but every body else that writes of him allows) I think it will be a hard matter to persuade a disinteress'd Person, or any other but a _bon Francois_, (which, in good _English_, is a _Lover of his Chains_) that here is any just Reason shewn why _Hotoman_ shou'd be blam'd. Monsieur _Teissier_, altho' very much prejudiced against him, was (as one may see by the Tenor of the above Quotation, and his leaving it thus uncommented on) in his Heart convinc'd of the Truth of it; but no _bon Francois_ dares own so much. He was a little too careless when he wrote against _Hotoman_, mistaking one of his Books for another; _viz._ his Commentary _ad titulum institutionum de Actionibus_, for his little Book _de gradibus cognationis_; both extremely esteemed by all learned Men, especially the first: Of which Monsieur _Bayle_ gives this Testimony: "_La beauté du Stile, & la connoissance des antiquités Romaines eclatoient dans cet Ouvrage, & le firent fort estimer._" _Thuanus_, that celebrated disinteress'd Historian, gives this Character in general of his Writings. "He composed (says he) several Works very profitable towards the explaining of the Civil Law, Antiquity, and all Sorts of fine Literature; which have been collected and publish'd by _James Lectius_, a famous Lawyer, after they had been review'd and corrected by the Author. _Barthius_ says, that he excelled in the Knowledge of the Civil Law, and of all genteel Learning [Footnote: _Belles Literature_] _Ceux la mesmes qui ont ecrits contre luy_ (says _Neveletus_) _tombent d'accord quil avoit beaucoup de lecture & une profonde Erudition_." The Author of the _Monitoriale adversus Italogalliam_, which some take to be _Hotoman_ himself, has this Passage relating to the _Francogallia_: "Quomodo potest aliquis ei succensere qui est tantum relator & narrator facti? _Francogallista_ enim tantum narrationi & relationi simplici vacat, quod si aliena dicta delerentur, charta remaneret alba." It was objected to him, that he unawares furnish'd the Duke of _Guise_ and the _League_ at _Paris_ with Arguments to make good their Attempts against their Kings. This cannot be deny'd; but at the same time it cannot be imputed to _Hotoman_ as any Crime: Texts of Scripture themselves have been made use of for different Purposes, according to the Passion or the Interests of Parties. Arguments do not lose their native Force for being wrong apply'd: If the Three _Estates of France_ had such a fundamental Power lodg'd in them; who can help it, if the Writers for the _League_ made use of Hotoman's Arguments to support a wrong Cause? And this may suffice to remove this Imputation from his Memory. He was a Man of a very handsome Person and Shape, tall and comely; his Eyes were blewish, his Nose long, and his Countenance venerable: He joined a most exemplary Piety and Probity to an eminent Degree of Knowledge and Learning. No Day pass'd over his Head, wherein he employ'd not several Hours in the Exercise of Prayer, and reading of the Scriptures. He wou'd never permit his Picture to be drawn, tho' much intreated by his Friends; however (when he was at his last Gasp, and cou'd not hinder it) they got a Painter to his Bed's-side, who took his Likeness as well as 'twas possible at such a time. _Basilius Amerbachius_ assisted him during his last Sickness, and _James Grinæus_ made his Funeral-Sermon. He left two Sons behind him, _John_ and _Daniel_; besides a great Reputation, and Desire of him, not only among his Friends and Acquaintance, but all the Men of Learning and Probity all over _Europe_. * * * * * Explication of the _Roman_ Names mention'd by _Hotoman_. _�dui_, People of _Chalons_ and _Nevers_, of _Autun_ and _Mascon_. _Agrippina Colonia_, _Cologn_. _Arverni_, P. of _Auvergne_ and _Bourbonnais_. _Armorica_, _Bretagne_ and _Normandy_. _Aquitani_, P. of _Guienne_ and _Gascogn_. _Atrebates_, P. of _Artois_. _Attuarii_, P. of _Aire_ in _Gascogn_. _Augustodunum_, _Autun_. _Aureliani_, P. of _Orleans_. _Aquisgranum_, _Aix la Chapelle_. _Ambiani_, P. of _Amiens_. _Alsaciones_, P. of _Alsace_. _Bigargium_, _Bigorre forté_. _Bibracte_, _Bavray_, in the Diocese of _Rheims_. _Bituriges_, P. of _Bourges_. _Carisiacum_, _Crecy_. _Cinnesates_, P. on the Sea-Coast, between the _Elb_ and the _Rhine_. _Carnutes_, P. of _Chartres_ and _Orleans_. _Ceutrones_, P. of _Liege_. _Ceutones_, P. of _Tarentaise_ in _Savoy_. _Condrusii_, P. of the _Condros_ in _Flanders_. _Dusiacum_, _non liquet_. _Eburones_, P. of the Diocese of _Liege_, and of _Namur_. _Gorduni_, P. about _Ghent_ and _Courtray_. _Grudii_, P. of _Lovain_. _Hetrusci_, P. of _Tuscany_. _Laudunum_, _Laon_. _Lexovium_, _Lisieux_. _Lentiates_, People about _Lens_. _Levaci_, P. of _Hainault_. _Leuci_, P. of _Metz_, _Toul_ and _Verdun_. _Lingones_, P. of _Langres_. _Lugdunum_, _Lyons_. _Lutetia_, _Paris_. _Massilia_, _Marseilles_. _Marsua_, _non liquet_. _Nervii_, P. of _Hainault_ and _Cambray_. _Nitiobriges_, P. of _Agenois_. _Novemopulonia_, _Gascony_. _Noviomagum_, _Nimeguen_. _Pannonia_, _Hungary_. _Pleumosii_, P. of _Tornay_ and _Lisle_. _Rhatia_, _Swisserland_. _Rhemi_, P. of _Rheims_. _Senones_, P. of _Sens_ and _Auxerre_. _Sequani_, P. of _Franche Comté_. _Sequana_, the River _Seine_. _Suessiones_, P. of _Soissons_. _Trecassini_, P. of _Tricasses_ in _Champagne_. _Treviri_, P. of _Triers_, and Part of _Luxemburg_. _Toxandri_, P. of _Zealand_. _Tolbiacum_, _non liquet_. _Vencti_, P. of _Vannes_. _Vesontini_, P. of _Besançon_. _Ulbanesses_, _non liquet_. _Witmarium_, _non liquet_. * * * * * The Author's Preface. To the most Illustrious and Potent Prince _FREDERICK_, Count Palatine of the _Rhine_, Duke of _Bavaria_, &c. First Elector of the _Roman_ Empire, His most Gracious Lord, _Francis Hotoman_, wishes all Health and Prosperity. _'Tis an old Saying, of which_ Teucer _the Son of_ Telamon _is the supposed Author, and which has been approved of these many Ages_, A Man's Country is, where-ever he lives at Ease. [Footnote: _Patria est ubicunq; est bene._] _For to bear even Banishment it self with an unconcern'd Temper of Mind like other Misfortunes and Inconveniences, and to despise the Injuries of an ungrateful Country, which uses one more like a Stepmother than a true Mother, seems to be the Indication of a great Soul. But I am of a quite different Opinion: For if it be a great Crime, and almost an Impiety not to live under and suffer patiently the Humours and harsh Usage of our Natural Parents; 'tis sure a much greater, not to endure those of our Country, which wise Men have unanimously preferr'd to their_ Parents. _'Tis indeed the Property of a wary self-interested Man, to measure his Kindness for his Country by his own particular Advantages: But such a sort of Carelesness and Indifferency seems a Part of that Barbarity which was attributed to the_ Cynicks _and_ Epicureans; _whence that detestable Saying proceeded_, When I am dead, let the whole World be a Fire. _Which is not unlike the Old Tyrannical Axiom_; Let my Friends perish, so my Enemies fall along with them. [Footnote: _Me mortuo terra misceatur incendio. Pereant amici dum una inimici intercidant._] _But in gentle Dispositions, there is a certain inbred Love of their Country, which they can no more divest themselves of, than of Humanity it self. Such a Love as_ Homer _describes in_ Ulysses, _who preferred_ Ithaca, _tho' no better than a Bird's Nest fix'd to a craggy Rock in the Sea, to all the Delights of the Kingdom which_ Calypso _offer'd him_. Nescio quâ natale Solum dulcedine cunctos Ducit, & immemores non finit esse sui: _Was very truly said by the Ancient Poet; When we think of that Air we first suck'd in, that Earth we first trod on, those Relations, Neighbours and Acquaintance to whose Conversation we have been accustomed._ _But a Man may sometimes say, My_ Country _is grown_ mad _or_ foolish, _(as_ Plato _said of his) sometimes that it rages and cruelly tears out its own Bowels.--We are to take care in the first Place, that we do not ascribe_ other Folks _Faults to our innocent_ Country. _There have been may cruel_ Tyrants _in_ Rome _and in other Places; these not only tormented innocent good Men, but even the best deserving Citizens, with all manner of Severities: Does it therefore follow, that the Madness of these Tyrants must be imputed to their Country? The Cruelty of the Emperor_ Macrinus _is particularly memorable; who as_ Julius Capitolinus _writes, was nicknamed_ Macellinus, _because his House was stained with the Blood of Men, as a Shambles is with that of Beasts. Many such others are mention'd by Historians, who for the like Cruelty (as the same_ Capitolinus _tells us) were stil'd, one_ Cyclops, _another_ Busiris, _a 3d_ Sciron, _a 4th_ Tryphon, _a 5th_ Gyges. _These were firmly persuaded, that Kingdoms and Empires cou'd not be secur'd without Cruelty: Wou'd it be therefore reasonable, that good Patriots shou'd lay aside all Care and Solicitude for their Country? Certainly they ought rather to succour her, when like a miserable oppressed Mother, she implores her Childrens Help, and to seek all proper Remedies for the Mischiefs that afflict her._ _But how fortunate are those Countries that have good and mild Princes! how happy are those Subjects, who, thro' the Benignity of their Rulers may quietly grow old on their Paternal Seats, in the sweet Society of their Wives and Children! For very often it happens, that the Remedies which are made use of prove worse than the Evils themselves. 'Tis now, most Illustrious Prince, about Sixteen Years since God Almighty has committed to your Rule and Government a considerable Part of_ Germany _situate on the_ Rhine. _During which time, 'tis scarce conceivable what a general Tranquility, what a Calm (as in a smooth Sea) has reigned in the whole_ Palatinate; _how peaceable and quiet all things have continued: How piously and religiously they have been governed: Go on most Gracious Prince in the same Meekness of Spirit, which I to the utmost of my Power must always extol. Proceed in the same Course of gentle and peaceable Virtue_; Macte Virtute; _not in the Sense which_ Seneca _tells us the_ Romans _used this Exclamation in, to salute their Generals when they return'd all stain'd with Gore Blood from the Field of Battel, who were rather true_ Macellinus's: _But do you proceed in that Moderation of Mind, Clemency, Piety, Justice, Affability, which have occasion'd the Tranquility of your Territories. And because the present Condition of your_ Germany _is such as we see it, Men now-a-days run away from Countries infested with Plunderers and Oppressors, to take Sanctuary in those that are quiet and peaceable; as Mariners, who undertake a Voyage, forecast to avoid Streights, &c. and Rocky Seas, and chase to sail a calm and open Course._ _There was indeed a Time, when young Gentlemen, desirous of Improvement, flock'd from all Parts to the Schools and Academies of our_ Francogallia, _as to the publick Marts of good Literature. Now they dread them as Men do Seas infested with Pyrates, and detest their Tyrannous Barbarity. The Remembrance of this wounds me to the very Soul; when I consider my unfortunate miserable Country has been for almost twelve Years, burning in the Flames of Civil War. But much more am I griev'd, when I reflect that so many have not only been idle Spectators of these dreadful Fires (as_ Nero _was of flaming_ Rome_) but have endeavour'd by their wicked Speeches and Libels to blow the Bellows, whilst few or none have contributed their Assistance towards the extinguishing them._ _I am not ignorant how mean and inconsiderable a Man I am; nevertheless as in a general Conflagration every Man's Help is acceptable, who is able to fling on but a Bucket of Water, so I hope the Endeavours of any Person that offers at a Remedy will be well taken by every Lover of his Country. Being very intent for several Months past on the Thoughts of these great Calamities, I have perused all the old_ French _and_ German _Historians that treat of our_ Francogallia, _and collected out of their Works a true State of our_ Commonwealth; _in the Condition (wherein they agree) it flourished for above a Thousand Years. And indeed the great Wisdom of our Ancestors in the first framing of our Constitution, is almost incredible; so that I no longer doubted, that the most certain Remedy for so great Evils must be deduced from their Maxims._ _For as I more attentively enquired into the Source of these Calamities, it seemed to me, that even as human Bodies decay and perish, either by some outward Violence, or some inward Corruption of Humours, or lastly, thro' Old Age: So Commonwealths are brought to their Period, sometimes by Foreign Force, sometimes by Civil Dissentions, at other Times by being worn out and neglected. Now tho' the Misfortunes that have befallen our Commonwealth are commonly attributed to our Civil Dissentions, I found, upon Enquiry, these are not so properly to be called the_ Cause _as the_ Beginning _of our Mischiefs. And_ Polybius, _that grave judicious Historian, teaches us, in the first place, to distinguish the_ Beginning _from the_ Cause _of any Accident. Now I affirm the_ Cause _to have been that great Blow which our Constitution received about 100 Years ago from that_ [Footnote: Lewis _the_ XI.] _Prince, who ('tis manifest) first of all broke in upon the noble and solid Institutions of our Ancestors. And as our natural Bodies when put out of joint by Violence, can never be recover'd but by replacing and restoring every Member to its true Position; so neither can we reasonably hope our Commonwealth shou'd be restor'd to Health, till through Divine Assistance it shall be put into its true and natural State again._ _And because your Highness has always approv'd your self a true Friend to our Country; I though it my Duty to inscribe, or, as it were, to consecrate this Abstract of our History to your Patronage. That being guarded by so powerful a Protection, it might with greater Authority and Safety come abroad in the World. Farewel, most illustrious_ Prince; _May the great God Almighty for ever bless and prosper your most noble Family._ Your Highness's most Obedient, _Francis Hotoman_. 12 Kal. Sep. 1574. * * * * * Francogallia. * * * * * CHAP. I. _The State of_ Gaul, _before it was reduced into a_ Province _by the_ Romans. My Design being to give an Account of the Laws and Ordinances of our _Francogallia_, as far as it may tend to the Service of our _Commonwealth_, in its present Circumstances; I think it proper, in the first place, to set forth the State of _Gaul_, before it was reduced into the Form of a _Province_ by the _Romans_: For what _Cæsar, Polybius, Strabo, Ammianus_, and other Writers have told us concerning the _Origin, Antiquity_ and _Valour_ of that People, the Nature and Situation of their Country, and their private Customs, is sufficiently known to all Men, tho' but indifferently learned. We are therefore to understand, that the State of _Gaul_ was such at that time, that neither was the _whole_ under the Government of a _single Person_: Nor were the particular [Footnote: _Civitas_, a Commonwealth.] _Commonwealths_ under the Dominion of the _Populace_, or the _Nobles_ only; but all _Gaul_ was so divided into _Commonwealths_, that the most Part were govern'd by the _Advice_ of the _Nobles_; and these were called _Free_; the rest had _Kings_. But every one of them agreed in this _Institute_, that at a certain Time of the Year a _publick Council_ of the whole Nation should be held; in which _Council_, whatever seem'd to relate to the whole _Body_ of the _Commonwealth_ was appointed and establish'd. _Cornelius Tacitus_, in his 3d Book, reckons Sixty-four _Croitates_; by which is meant (as _Cæsar_ explains it) so many Regions or Districts; in each of which, not only the same _Language, Manners_ and _Laws_, but also the same _Magistrates_ were made use of. Such, in many Places of his History, he principally mentions the Cities of the _�dui_, the _Rhemi_ and _Arverni_ to have been. And therefore _Dumnorix_ the _�duan_, when _Cæsar_ sent to have him slain, began to resist, and to defend himself, and to implore the Assistance of his _Fellow Citizens_; often crying out, That he was a _Freeman_, and Member of a _Free Commonwealth_, lib. 5. cap. 3. To the like purpose Strabo writes in his Fourth Book: [Footnote: [Greek: Aristokratikai d' êsan hai pleious tôn politeiôs, ena d' hêgemona hêrounto kat eniauton to palaion hôs d' hautôs eis polemon heis hupo tou plêthous apedeiknuto stratêgos.]] "_Most_ of the _Commonwealths_ (says he) were govern'd by the _Advice_ of the _Nobles_: but every _Year_ they anciently chose a _Magistrate_; as also the People chose a _General_ to manage their Wars." The like _Cæsar_, lib. 6. Cap. 4. writes in these Words: "Those _Commonwealths_ which are esteem'd to be under the best Administration, have made a Law, that if any Man chance to hear a Rumour or Report abroad among the Bordering People, which concerned the _Commonwealth_, he ought to inform the _Magistrates_ of it, and communicate it to no body else. The _Magistrates_ conceal what they think proper, and acquaint the Multitude with the rest: For of Matters relating to the _Community_, it was not permitted to any Person to talk or discourse, but in _Council_".--Now concerning this _Common Council_ of the whole Nation, we shall quote these few Passages out of _Cæsar_. "They demanded, (says he) _lib._ 1. _cap._ 12. a _General Council_ of _all Gallia_ to be summon'd; and that this might be done by _Cæsar_'s Consent." Also, _lib._ 7. _cap._ 12.--"a _Council_ of all _Gallia_ was summon'd to meet at _Bibracte_; and there was a vast Concourse from all Parts to that Town."--And _lib._ 6. _cap._ 1--"_Cæsar_ having summon'd the _Council_ of _Gaul_ to meet early in the Spring, as he had before determin'd: Finding that the _Senenes, Carnates_ and _Treviri_ came not when all the rest came, he adjourned the _Council_ to Paris."--And, _lib_ 7. _cap._ 6. speaking of _Vercingetorix_,--"He promis'd himself, that he shou'd be able by his Diligence to unite such _Commonwealths_ to him as dissented from the rest of the Cities of _Gaul_, and to form a _General Council_ of all _Gallia_; the Power of which, the whole World should not be able to withstand." Now concerning the _Kings_ which ruled over certain Cities in _Gallia_ the same Author makes mention of them in very many Places; Out of which this is particularly worthy our Observation: That it was the _Romans_ Custom to caress all those _Reguli_ whom they found proper for their turns: That is, such as were busy men, apt to embroil Affairs, and to sow Dissentions or Animosities between the several _Commonwealths_. These they joined with in Friendship and Society, and by most honourable publick Decrees called them their _Friends_ and _Confederates_: And many of these _Kings_ purchased, at a great Expence, this Verbal Honour from the _Chief Men_ of _Rome_. Now the _Gauls_ called such, _Reges_, or rather _Reguli_, which were chosen, not for a certain Term, (as the Magistrates of the Free Cities were) but for their Lives; tho' their Territories were never so small and inconsiderable: And these, when Customs came to be changed by Time, were afterwards called by the Names of _Dukes, Earls_, and _Marquisses_. Of the _Commonwealths_ or _Cities_, some were much more potent than others; and upon these the lesser _Commonwealths_ depended; these they put themselves under for Protection: Such weak Cities _Cæsar_ sometimes calls the _Tributaries_ and _Subjects_ of the former; but, for the most part he says, they were in _Confederacy_ with them. _Livius_ writes, _lib. 5._ that when _Tarquinius Priscus_ reigned in _Rome_, the _Bituriges_ had the principal Authority among the _Celtæ_, and gave a _King_ to them. When _Cæsar_ first enter'd _Gaul_, A.U.C. 695. he found it divided into Two Factions; the _�dui_ were at the Head of the one, the _Arverni_ of the other, who many Years contended for the Superiority: But that which greatly increas'd this Contention, was, Because the _Bituriges_, who were next Neighbours to the _Arverni_, were yet _in file & imperio_ that is, Subjects and Allies to the _�dui_. On the other hand, the _Sequani_ (tho' Borderers on the _�dui_) were under the Protection of the _Arverni_, lib. 1. Cap. 12. lib. 6. cap. 4. The _Romans_ finding such-like Dissention; to be for their Interest; that is, proper Opportunities to enlarge their own Power, did all they cou'd to foment them: And therefore made a League with the _�dui_, whom (with a great many Compliments) they titled _Brothers and Friends of the People of Rome_. Under the Protection and League of the _�dui_, I find to have been first the _Senones_, with whom some time before the _Parisians_ had join'd their _Commonwealth_ in League and Amity. Next, the _Bellouaci_, who had nevertheless a great City of their own, abounding in Numbers of People, and were of principal Authority and Repute among the _Belgæ_, lib. 2. cap. 4. and lib. 7. cap. 7. _Cæsar_ reckons the _Centrones_, _Grudii_, _Levaci_, _Pleumosii_, _Gordunni_, under the Dominion of the _Nervii_, lib. 5. cap. 11. He names the _Eburones_ and _Condrasii_ as Clients of the _Treviri_, lib. 4. cap. 2. And of the _Commonwealth_ of the _Veneti_ (these are in _Armorica_ or _Brittanny_) he writes, that their Domination extended over all those Maritime Regions; and that almost all that frequented those Seas were their Tributaries, _lib._ 3. _cap._ 2. But the Power of the _Arverni_ was so great, that it not only equall'd that of the �dui, but a little before _Cæsar_'s Arrival, had got most of their Clients and Dependents from them, _lib._ 6 _cap._ 4. _lib._ 7. _cap._ 10. Whereupon, as Strabo writes in his 4th Book, they made War against _Cæsar_ with Four hundred thousand Men under the Conduct of their General _Vercingetorix_. These were very averse to Kingly Government: So that _Celtillus_, Father to _Vercingetorix_, a Man of great Power and Reputation (reckon'd the first Man in all _Gaul_,) was put to Death, by _Order_ of his _Commonwealth_, for aspiring to the _Kingdom_. The _Sequani_, on the other hand, had a King, one _Catamantales_, to whom the _Romans_ gave the Title of their _Friend_ and _Ally_, lib. 1. cap. 2. Also the _Suessiones_, who were Masters of most large and fertile Territories, with 12 great Cities, and cou'd muster Fifty thousand fighting Men, had a little before that time _Divitiacus_, the most potent Prince of all _Gallia_ for their King; he had not only the Command of the greatest Part of _Belgæ_, but even of _Britanny_. At _Cæsar_'s Arrival they had one _Galba_ for their King, _lib._ 2. _cap._ 1. In _Aquitania_, the _Grandfather_ of one _Piso_ an _Aquitanian_ reigned, and was called _Friend_ by the People of _Rome_, lib. 4. cap. 3. The _Senones_, a People of great Strength and Authority among the _Gauls_, had for some time _Moritasgus_ their King; whose Ancestors had also been Kings in the same Place, _lib._ 5. _cap._ 13. The _Nitiobriges_ or _Agenois_, had _Olovico_ for their King; and he also had the Appellation given him of _Friend_ by the _Senate_ of _Rome_, lib. 7. cap. 6. But concerning all these Kingdoms, one thing is remarkable, and must not lightly be past by; which is That _they were not hereditary_, but _conferr'd_ by the _People_ upon such as had the Reputation of being just Men. Secondly, That they had no _arbitrary_ or _unlimited Authority_, but were bound and _circumscribed_ by _Laws_; so that they were no less accountable to, and subject to the Power of the People, than the People was to theirs; insomuch that those _Kingdoms_ seem'd nothing else but _Magistracies for Life_. For Cæsar makes mention of several _private Men_, whose _Ancestors_ had formerly been _such Kings_; among these he reckons _Casticus_, the Son of _Catamantales_, whose Father had been King of the _Sequani_ many Years, _lib._ 1. _cap._ 2. and _Piso_ the _Aquitanian_, lib. 4. cap. 3. also _Tasgetius_, whose Ancestors had been Kings among the _Carnutes_, lib. 5. cap. 8. Now concerning the Extent of their _Power_ and _Jurisdiction_, he brings in _Ambiorix_, King of the _Eburones_, giving an account of it, _lib._ 5. _cap._ 8. "The Constitution of our Government is such (says he) that the People have no less Power and Authority over me than I have over the People. _Non minus habet in me juris multitudo, quam ipse in multitudinem._" Which Form of Government, _Plato, Aristotle, Polybius_ and _Cicero_ have for this Reason determined to be the _best_ and _most Excellent_: "Because (says _Plato_) shou'd Kingly Government be left without a Bridle, when it has attained to supreme Power, as if it stood upon a slippery Place, it easily falls into Tyranny: And therefore it ought to be restrained as with a Curb, by the Authority of the Nobles; and such chosen men as the People have empower'd to that End and Purpose." * * * * * CHAP. II. _Probable Conjectures concerning the_ ancient Language _of the_ Gauls. In this Place it seems proper to handle a Question much disputed and canvass'd by Learned Men; _viz._ What was the Language of the Gauls in those old Times? For as to what belongs to their Religion, Laws, and the Customs of the People, _Cæsar_, as I said before, has at large given us an account. In the first place we ought to take notice, that _Cæsar_, in the Beginning of his Commentaries, where he divides the Gauls into Three Nations, the _Belgæ_, the _Aquitanæ_, and the _Celtæ_, tells us they all differ'd, not only in their _Customs_, but in their _Language_ [Footnote: [Greek: all enious micron parallattontas tais glôttais]]: Which also _Strabo_ confirms, _lib._ 4. where he says they were not [Greek: homolhôttous], of one Language, but a little differing in their Languages. And the same thing _Ammianus Marcellinus_ testifies in his 15th Book. But what many Learned Men (especially of our own Country) have maintain'd, _viz._ That the _Gauls_ commonly used the _Greek Tongue_, may be refuted by this single Instance which _Cæsar_ takes notice of _lib._ 5. _cap._ 12. That when _Q. Cicero_ was besieged in his Camp, he dispatched Letters written in the _Greek_ Language, "_Lest (if they were intercepted) his Designs shou'd be discover'd by the_ Gauls." But to this some object, what _Strabo_ writes, _lib._ 4. _viz._ "That all Sorts of good Literature (and especially that of the _Greek Language_) flourish'd at _Marseilles_ to such a degree, that the _Gauls_, by the Example of the _Massilians_, were mightily delighted with the _Greek_ Tongue, insomuch that they began to write their very Bargains and Contracts in it." Now to this there is a short and ready Reply: For, in the first place, if the _Gauls_ learnt _Greek_ by the Example of the _Massilians_, 'tis plain, 'twas none of their Mother-tongue. Secondly, _Strabo_ in the same place clearly shows us, that the Fashion of writing their Contracts in _Greek_ began but in his Time, when all _Gallia_ was in Subjection to the _Romans_. Besides, he speaks precisely only of those _Gauls_ who were Borderers and next Neighbours to the _Massilians_, of whom he says, that not only many of their private Men, but even their Cities (by publick Decrees, and proposing great Rewards) invited several Learned Men of _Massilia_ to instruct their Youth. It remains that we shou'd clear that place in _Cæsar_, where he tells us the _Gauls_, in their publick and private Reckonings, _Græcis literis usos fuisse_. But let us see whether the word _Græcis_ in that place ought not to be left out, not only as _unnecessary_ but _surreptitious_. Since it was sufficient to express _Cæsar_'s Meaning to have said, that the _Gauls_ made no use of _Letters_ or _Writing_ in the Learning of the _Druids_, but in all other Matters, and in publick and private Accounts, they did make use of _Writing_: For _uti litteris, to use Letters_, is a frequent Expression for _Writing_ among Latin Authors. Besides, it had been a Contradiction to say the _Gauls_ were unskill'd in the _Greek_ Tongue, as _Cæsar_ had averr'd a little before; and afterwards to say, that they wrote all their publick and private Accounts in _Greek_. As to what many suppose, that the words _literis Græcis_ in that place, are not to be taken for _Writing Greek_, but only for the _Characters_ of the _Letters_; I can less approve of this Explanation than the former; because though many ancient Writers (as we just now said) frequently used the Expression, _Uti litteris_ for _Scribere_; yet I never observ'd, that any of them ever used it to signify the _Forms_ and _Fashions_ of the _Characters_. Neither does it make at all for their Opinion, what _Cæsar_ says in the First Book of his Commentaries, _viz._ That there were found in the _Helvetian_ Camp, Tablets, _literis Græcis conscriptas_; as if the same Person, who had learnt to make use of the _Greek Forms_ of _Characters_, might not as easily have learnt the _Greek Language_; or as if there might not be among the _Helvetii_, _Priests_ or _Gentlemens Sons_, who might then have learnt _Greek_, as our's now learn _Latin_; _Greek_ being at that Time a Language in Vogue and Esteem. The very Neighbourhood of the School of _Massilia_ is sufficient to confute that Opinion: And therefore _Cæsar_, when he speaks of his own Letter to _Cicero_, tells us, he sent that Letter written in _Greek Characters_, lest (in case it were intercepted) his Designs shou'd be discover'd by the Enemy. _Justinius_, lib. 20. says, there was a Decree of the Senate made, that no _Carthaginian_, after that Time, shou'd study the [Footnote: _Græcis literas._] _Greek Language_ or _Writing_, lest he shou'd be able to speak or write to the Enemy without an Interpreter. _Tacitus_, in his Book _de moribus Germanorum_, tells us, that several Tombs and Monuments were yet to be seen in the Confines of _Germany_ and _Swisserland_ with _Greek_ Inscriptions on them. _Livius_, lib. 9. says, The _Roman_ Boys formerly studied the _Tuscan_ Language, as now they do the _Greek_. And in his 28th Book,--"_Hanibal_ erected an Altar, and dedicated it with a large Inscription of all his Atchievements, in the _Greek_ and _Punick_ Tongues. _Idem Lib._ 40. Both Altars and Inscriptions on them in the _Greek_ and _Latin_ Tongues." Lastly, I cannot imagine, that _Cæsar_ wou'd have expressed himself (if he had meant, as these wou'd have him) _Græcis literis scribere_; but rather, _Græcarum literarum formâ_, as we see in _Tacitus_, Lib. 11. "_Novas literarum formas addidit._" He added new Characters of Letters: Having found, that the _Greek_ Literature was not begun and perfected at once. And again,--"_Et forme literis latinis quæ veterrimis Græcorum_, &c." Now lest any body shou'd wonder, how the Word _Græcis_ crept into _Cæsar_'s Text, I will instance you the like Mischance in _Pliny_, _lib._ 7. _cap._ 57. where 'tis thus written,--"_Gentium consensus tacitus primum omnium conspiravit ut_ IONUM _literis uterentur_." And afterwards,--"_Sequens gentium consensus in tonsoribus fuit._" And again,--"_Tertius consensus est in Horarum observatione._" Now who is there that sees not plainly the Word IONUM ought to be left out, as well because 'tis apparently unnecessary, (for _Pliny_ had no farther Design than to let us know, that Men first of all consented in the Writing and Form of their Letters) as because 'tis false, that the _Ionian_ Letters were the first invented; as _Pliny_ himself in his foregoing Chapter, and _Tacitus_, _lib._ 11. have told us? I have observed however two Places, (_Gregorius Turonensis_, lib. 5. and _Aimoinus_, lib. 3. cap. 41.) wherein 'tis intimated, that the _Gauls_ used the _Forms_ of the _Greek_ Letters: For where they speak of King _Chilperick_,--"_He added_ (say they) _some Letters to our Letters_; and those were, [Greek: o, ps, z, ph]; and sent Epistles to the several Schools in his Kingdom, that the Boys should be so taught." _Aimoinus_ mentions only three Letters, [Greek: ch, th, ph]. But we must understand, that these were _Franks_, not _Gauls_; or rather _Franco-gauls_, who made use of their own native Language, the _German_ Tongue; not that ancient Language of the _Gauls_, which had grown out of use under the _Roman_ Government: Besides, if the _Francogalli_ had made use of the _Greek_ Letters, how came they at first to except these, when they made use of all the rest? But we have said enough, and too much of this Matter. As for their Opinion who believe that the _Gauls_ spoke the _German_ Language, _Cæsar_ confutes it in that single place, wherein he tells us, that _Ariovistus_, by Reason of his long Conversation in _Gallia_, spoke the _Gallick_ Tongue. Now for two Reasons their Opinion seems to me to be most probable, who write, that the _Ancient Gauls_ had a peculiar Language of their own, not much differing from the _British_: First, because _Cæsar_ tells us it was the Custom for these _Gauls_ who had a mind to be thoroughly instructed in the Learning of the _Druyds_, to pass over into _Britain_; and since the _Druyds_ made no use of Books, 'tis agreeable to Reason, that they taught in the same Language which was used in _Gallia_. Secondly, because _Tacitus_ in his Life of _Agricola_, writes, that the Language of the _Gauls_ and _Britains_ differ'd but very little: neither does that Conjecture of _Beatus Rhenanus_ seem unlikely to me, who believes the Language which is now made use of in _Basse Bretayne_ [_Britones Britonantes_] to be the Remains of our ancient Tongue. His Reasons for this Opinion may be better learn'd from his own Commentaries, than told in this Place. The Language which we at present make use of, may easily be known to be a Compound of the several Tongues of divers Nations. And (to speak plainly and briefly) may be divided into four Parts. One half of it we have from the _Romans_, as every one that understands _Latin_ ever so little, may observe: For besides, that the _Gauls_ being subject to the _Romans_, wou'd naturally fall into their Customs and Language, 'tis manifest that the _Romans_ were very industrious to propagate their Tongue, and to make it universal, and (as it were) venerable among all Nations. And to that End settled Publick Schools up and down, at _Autan, Besancon, Lyons_, &c. as _Valerius Maximus, Tacitus_, and _Ausonius_ tell us. The other half of it may be subdivided thus. One third of it we hold from the _Ancient Gauls_, another from the _Franks_, and the last from the _Greek_ Language: For it has been demonstrated long since by many Authors, that we find innumerable _Frank_ (that is, _German_) Words (as we shall hereafter prove) in our daily Speech. And several learned Men have shewn us, that many _Greek_ Words are adapted to our common Use, which we do not owe to the Learning and Schools of the _Druyds_, (who I believe spoke no _Greek_); but to the Schools and Conversation of the _Massilians_, whom we formerly mentioned. * * * * * CHAP. III. _The State of_ Gaul, _after it was reduced into the form of a_ Province _by the_ Romans. 'Tis very well known to all learned Men, that _Gaul_, after having been often attempted with various Success, during a ten Years War, and many Battels, was at last totally subdued by _Cæsar_ and reduced into the Form of a Province. It was the Misfortune of this most valiant and warlike People, to submit at length to the _Great Beast_, as it is called in Scripture, with which however they so strove for Empire for eight hundred Years, (as _Josephus_ informs us) that no Wars with any other Nation, so much terrified _Rome_. And _Plutarch_ in his Lives of _Marcellus_ and _Camillus; Appian_ in his 2d Book of the Civil Wars; _Livius, lib._ 8. & 10. have recorded, that the _Romans_ were so afraid of the _Gauls_, that they made a Law, whereby all the Dispensations (formerly granted to Priests and old Men, from serving in their Armies) were made void, in Case of any Tumult or Danger arising from the _Gauls_; which _Cicero_ takes notice of in his 2d _Philippick_. _Cæsar_ himself in his 6th Book, and after him _Tacitus_, lib. _de moribus Germanorum_, do testify, That there was a time wherein the _Gauls_ excell'd the _Germans_ in Valour, and carried the War into their Territories, settling Colonies (by reason of their _great_ Multitudes of People) beyond the _Rhine_. Now _Tacitus_ in his Life of _Agricola_, attributes, the _Loss_ of this their so remarkable _Valour_, to the _Loss_ of their Liberty. _"Gallos in bellis floruisse accepimus, mox segnities cum otio intravit, amissa_ Virtute _pariter ac_ Libertate--." And I hope the Reader will excuse me, if the Love of my Country makes me add that remarkable Testimony of the Valour of the _Gauls_, mentioned by _Justin, lib._ 24.--"The _Gauls_ (says he) finding their Multitudes to increase so fast, that their Lands cou'd not afford them sufficient Sustenance, sent out Three hundred thousand Souls to seek for new Habitations. Part of these: seated themselves in _Italy_; who both took and burnt the City of _Rome_. Another part penetrated as far as the Shores of _Dalmatia_, destroying infinite Numbers of the _Barbarians_, and settled themselves at last in _Pannonia_. A hardy bold and warlike Nation; who ventured next after _Hercules_, (to whom the like Attempt gave a Reputation of extraordinary Valour, and a Title to Immortality) to cross those almost inaccessible Rocks of the _Alps_, and Places scarce passable by Reason of the Cold: Where after having totally subdued the _Pannonians_ they waged War with the bordering Provinces for many Years.--And afterwards--being encouraged by their Success, subdivided their Parties; when some took their Way to _Græcia_ some to _Macedonia_, destroying all before them with Fire and Sword. And so great was the Terror of the Name of the _Gauls_, that several Kings (not in the least threatned by them) of their own accord, purchased their Peace with large Sums of Money--. And in the following Book, he says,--So great was the Fruitfulness of the _Gauls_ at that time, that like a Swarm they fill'd all _Asia_. So that none of the _Eastern_ Kings either ventured to make War without a mercenary Army of _Gauls_, or fled for Refuge to other than the _Gauls_, when they were driven out of their Kingdoms." And thus much may suffice concerning their warlike Praises and Fortitude, which (as _Tacitus_ tells us) was quite _gone, as soon as they lost their Liberty_. Yet some Cities, or _Commonwealths_, (as _Phnius, lib. 4. cap. 11._ tells us) were permitted to continue free, after the _Romans_ had reduced _Gallia_ to the Form of a Province. Such were the _Nervii_, _Ulbanesses_, _Suessiones_ and _Leuci_. Also some of the Confederates: and among these he reckons the _Lingones_, _Rhemi_, _Carnutes_ and _�dui_. But we may easily learn from these Words of _Critegnatus_ the _Arvernian_, mentioned by _Cæsar, lib. 7._ what the Condition was of those _Commonwealths_, which had the Misfortune to be reduced into the Form of a _Province_. "If" (says he) "you are ignorant after what manner far distant Nations are used by the _Romans_, you have no more to do, but to look at our neighbouring _Gallia_, now reduced into the Form of a Province: Which having its Laws and Customs chang'd, and being subjected to the Power of the _Axes_, is oppress'd with perpetual Slavery." We are to understand, there were three kinds of Servitude, or Slavery. First, _To have a Garison of Soldiers imposed upon them, to keep them in Awe_; yet such Provinces as seemed peaceable and quiet, had no great Armies maintained in them. For _Josephus_ writes in his 2d Book of the Hist. of the _Jews_, "That in the Emperor _Titus's_ time, the _Romans_ had but 1200 Soldiers in Garison in all _Gaul_, altho'" (says he) "they had fought with the _Romans_ for their Liberty, almost 800 Years, and had near as many Cities, as the _Romans_ had Garison-Soldiers." A Second Sort of Servitude was, when any Province was made Tributary, and compelled to pay Taxes; and to that End were forced to endure a Number of Tax-gatherers, that is, _Harpies_ and _Leeches_, which suck'd out the very Blood of the _Provincials_. _Eutropius_ tells us, in his 6th Book, That _Cæsar_, as soon as he had subdued _Gaul_, impos'd a Tax upon it, by the Name of a Tribute, which amounted to _H. S. Quadringenties:_ which is about a Million of our Crowns. A Third Sort of Servitude was, when the Provinces were not permitted to be govern'd by their _own Laws_; but had Magistrates and Judges, with full Power and Authority (_cum imperio & securibus_) over Life and Estate, sent them by the People of _Rome_. This Threefold Slavery not only our _Gallia_, but all the other Provinces, took most bitterly to heart; and therefore in _Tiberius's_ Reign, not long after _Cæsar's_ Conquest, _Tacitus_ tells us, That the Cities of _Gaul_ rebell'd, because of the Continuance of Taxes, the Extortions of Usurers, and Insolence of the Soldiery. And afterwards in _Nero's_ Reign, _Suetonius_ writes, "That the _Gauls_ being weary of his Tyranny, revolted. The World" (says he) "having for near 13 Years, endured such a Sort of Prince, at last shook him off: The _Gauls_ beginning the Defection." Now all _Gallia_ was divided by the _Romans_ into 16 Provinces, _viz. Viennensis, Narbonensis prima, Narbonensis secunda, Aquitania prima, Aquitania secunda, Novempopulana, Alpes maritimæ, Belgica prima, Belgica secunda, Germania prima, Germania secunda, Lugdunensis prima, Lugdunensis secunda, Lugdunensis tertia, Maxima Sequanorum, & Alpes Græcas_, as _Antoninus_ in his _Itinerary_, and _Sextus Rufus_, give an Account of them. But _Ammianus Marcellinus_ treats of them more particularly. But to return to what we were speaking of: 'Tis not to be imagined how grievously, and with what Indignation the _Gauls_ bore the Indecencies and Plunderings of the _Romans_; nor how frequently they revolted upon that Account and because they were not strong enough of themselves to shake off the _Roman_ Tyranny, 'twas common Custom with them, to hire _German_ Auxiliaries. These were the first beginnings of the Colonies of the _Franks_; For those _Germans_, whether they were beaten by the _Romans_, or (which is more likely) were bought off by them, began by little and little, to settle themselves in the borders of _Gallia_. This gave to _Suetonius_, in his Life of _Augustus_, to say,--"He drove the _Germans_ beyond the River _Elb_; but the _Suevi_ and _Sicambri_ (submitting themselves); he transplanted into _Gallia_ where he assign'd them Lands near the river _Rhine_."--Also in his Life of _Therius_,--"He brought (says he) forty thousand of those that had surrendred themselves in the _German_ War, over into _Gallia_, and allotted them Settlements upon the Banks of the _Rhine_."--Neither must we omit what _Flavius Vepiseus_ records, concerning the Reign of _Probus_ the Emperor; in whose time almost all _Gallia_, that is, sixty Cities, revolted from the _Romans_; and with common Consent, took up Arms for the Recovery of' their Liberty:--"Having done these things (says he) he march'd with a vast Army into _Gaul_, which after _Posthumus's_ Death was all in Commotion, and when _Aurelianus_ was kill'd, was In a Manner possessed by the _Germans_; there he gain'd so many Victories, that he recover'd from the _Barbarians_ sixty of the most noble Cities of _Gallia_: And whereas they had overspread all _Gallia_ without Controul, he slew near four hundred thousand of those that had seated themselves within the _Roman_ Territories, and transplanted the Remainders of them beyond the Rivers _Neckar_, and _Elb_." But how cruel and inhuman the Domination of the _Romans_ was in _Gallia_: How intolerable their Exactions were: What horrible and wicked Lives they led; and with how great Inveteracy and Bitterness they were hated upon that Account by the _Gauls_, (especially by the _Christians_) may best be learn'd from the Works of _Salvianus_, Bishop of _Marseilles_, which treat of Providence: Therefore 'tis incredible to tell, what Multitudes of _Germans_ pour'd themselves into _Gallia_; the _Gauls_ not only not hindring, but even favouring and calling them in. _Latinus Pacatus_, in his Speech to _Theodesius_, has this Passage; "From whence shou'd I begin my Discourse, but from thy Mischiefs, O _Gallia_! who may'st justly challenge a Superiority in Sufferings, above all the Nations of the Earth, that have been vexed with this Plague?"--Now 'tis most plain both from _Sidonius Apollinaris_, and especially from the above-mentioned _Salvianus_, in many Places of his Writings, that our _Franks_ were a Part of those _German_ Nations, who thus entred into _Gallia_. * * * * * CHAP. IV. _Of the Original of the_ Franks; _who having possessed themselves of_ Gallia, _changed its Name, into that of_ Francia, _or_ Francogallia. The Order of our Discourse requires, that we should now enquire into the Original of the _Franks_, and trace them from their first Habitations, or (as it were) their very Cradles: In which Disquisition 'tis very much to be admired, that no mention has been made of them by _Ptolomy_, _Strabo_, or even by _Tacitus_ himself, who of all Writers was most accurate in describing the Names and Situations of all the _German_ Nations: and 'tis plain, the _Franks_ were a _German_ People, who possessed most part of _Europe_ for many Years, with great Reputation; of which we will quote but a few Instances out of many. First, _Joannes Nauclerus_ says thus,--"_Charles_ the Great was call'd _King_ of the _Franks_; which is as much as to say, _King_ of _Germany_ and _France_." Now 'tis demonstrable, that at that time all _Gallia Transalpina_, and all _Germany_ from the _Pyrenæen_ Mountains, as far as _Hungary_, was called _Francia_: This last was called _Eastern France_, the former _Western France_; and in this all true Historians agree. _Eguinarthus_, in his Life of _Charlemain_, says,--"The Banks of the River _Sala_, which divides the _Taringi_ from the _Sorabi_, were afterwards inhabited by those called the _Eastern Franks_." _Otto Frising._ _Chron._ 5. _cap._ 4. speaking of King _Dagaber_'s Reign, "The Bounds of the _Franks_ Dominions reach'd now (says he) from _Spain_, as far as _Hungary_, being two most noble Dukedoms, _Aquitania_ and _Bavaria_";--but much more at large, _lib._ 6. _cap._ 17. And after him _Godfrey_ of _Viterbo_, in his _Chronic. part. 17. sub Anno_ 881, "_Arnulphus_ (says he) ruled all _Eastern Francia_, which is now called the _Teutonick_ Kingdom, or _Germany_; that is to say, _Bavaria, Suabia, Saxonia, Turingia, Frisia_ and _Lotharingia_; but _Odo_ was king of _Western France_." Again, _sub Anno_ 913. "It is apparent by the Authority of many Writers, that the Kingdom of _Germany_, which the Emperor _Frederick_ at present holds, is part of the Kingdom of the _Franks_; for there (on both sides of the _Rhine_) the first _Franks_ were seated; which as far as to the Limits of _Bavaria_, is now called _Eastern France_: But _Western France_ is that Kingdom which lies on both Sides the Rivers _Seine_ and _Loire_"--And again he says, "In the time of _Charles_ the Great, King of the _Franks_, all _Gallia_, that is, _Celtica, Belgica_, and _Lugdunensis_ and all _Germany_ which reaches from the _Rhine_ as far as _Dalmatia_, made but one Kingdom; which was called _Francia_"--Almost all which Quotations have been taken out of _Otto_, as I said before. 'Tis to be noted, that _Rhegino_ writes thus, in _Chron. anni_ 577.--"After the Death of King _Pipin_, _Lewis_ his Son (who had been present at his Father's Decease and celebrated his Funerals) kept his Residence at _Francfort_, the principal Seat of the _Eastern Kingdom_." _Luitprandus Ticinensis says_, _lib. 1. cap._ 6.--"It was order'd that _Wido_ shou'd have for his Share, that which Men call the _Roman France_, and _Berengarius_ shou'd have Italy." And a little after,--"When he had march'd thro' the Territories of the _Burgundians_, he purposed to enter _Roman France_, &c." Now it was call'd _Roman France_, first, because the _Franks_ had possessed themselves of that _Gallia_, which was under the _Roman_ Obedience. Secondly, because the _Roman_ Language prevail'd in that Country, as we formerly told you: Whence arose the Saying, _Loqui Romanum_, of such as used not the _German_ or _Frank_; but the _Latin_ Tongue. Otto Frisingius, _chron._ 4. _cap. penult._ says,--"It seems to me, that those _Franks_ who dwell in _Gallia_, borrowed the Language, which they make use of to this Day, from the _Romans_; for the others who stay'd about the _Rhine_, and in _Germany_ use the _Teutonick_ Tongue."--And in Imitation of him, _Godfridus_, part. 17. cap. 1.--"The _Franks_ (says he) seem to me to have learn'd the Language which they make use of to this Day, from the _Romans_, who formerly dwelt in those Parts."--From all these 'tis apparent, that the Reputation and Power of the _Franks_ was extraordinary great; as 'twas fitting for such as were Masters of a great Part of _Europe_. Moreover we find, that those _Germans_ which were transplanted by the Emperor _Frederick_ the IId, into the Kingdoms of _Naples_ and _Sicily_, and establish'd there as a presidiary Colony, were called _Franks_. _Petrus de Vineis, lib. epist. 6. cap. 25._ [Footnote: These are only broken pieces of Sentences, to prove, that the _Germans_ (establish'd in _Naples_ and _Sicily_) were called, and actually were _Franks_.] --"_Following (says he) the Law and Custom of the_ Franks, _in this Instance, that the Eldest Brother to the Exclusion of all the Younger succeeds, even in the Camp it self._" Imp. Freder. 2. Neapol. constit. lib. 2. tit. 32. speaking of those _Franks, "who upon Occasion trusted the Fortune of their Lives, and of all their Estates, to the Event of a Duel, or single Combat_." And again,--"_The aforesaid manner of Proof, which all who observe the Rites of the_ Franks _made use of_"--. Also _lib. 2. tit. 33_.--"_which Law, our Will is, shall in all Causes be common both to the_ Franks _and_ Longobards." Matters being thus plain, 'tis strange that _Gregory_ Bishop of _Tours_ (who writ concerning the Original of the _Franks_ 800 Years ago) shou'd say, in the first Part of his History, That altho' he had made diligent Enquiry about the Rise and Beginning of the _Franks_, he could find nothing certain: notwithstanding he had seen an ancient Book of a certain Historian of theirs, called, _Salpitius Alexander_; who affirms nothing, either of their first Habitations, or the Beginnings of their Domination. But we have found out, that these People originally came from that Country which lies between the _Rhine_ and the _Elb_, and is bounded on the _West_ by the Sea, almost in the same Tract where the greater and the lesser _Chauci_ dwelt. "A People (says _Tacitus_) the most noble among all the _Germans_, who founded their Greatness and maintained it by Justice." These were next Neighbours to the _Batavians_; for 'tis agreed on all Hands, that the _Franks_ had their first Seats near the Sea-shore, in very marshy Grounds; and were the most skilful People in Navigation, and Sea-fights, known at that time: Whereof we have the following Testimonies. First, in _Claudian_, who congratulating _Stilicon's_ Victory, writes thus; --_Ut jam trans fluvium non indignante_ Chayco _Paseat_ Belga _pecus, mediumque ingressa per_ Albin Gallica Francorum _montes armenta pererrent_. In which Place he makes use of a Poetical License, and calls those People _Chayci_, which the Geographers call _Chauci_. Now that they were seated near the Sea, that Panegyrical Oration made to _Constantine_ the Great, is a Testimony: "_Quid loquar rursus_, &c. What should I speak more of those remote Nations of the _Franks_, transplanted not from Places which the _Romans_ of old invaded; but plucked from their very original Habitations, and their _farthest Barbarous Shores_, to be planted in the waste Places of _Gallia_; where with their Husbandry, they may help the _Roman_ Empire in time of Peace; and with their Bodies, supply its Armies in time of War--." And in another Panegyrick, by _Eumenius_ the Rhetorician, we find this Passage, "_Aut hæc ipsa_, &c. Or this Country, which was once overspread with the Fierceness of the _Franks_, more than if the Waters of their Rivers, _or their Sea_, had cover'd it;" but now ceases to be barbarous, and is civilized. To the same Purpose is _Procopius_ Testimony, in his first Book of the _Gothick War_; for where he describes the place where the _Rhine_ falls into the Ocean; "In these Parts (says he) there are great Marshes, where of old the _Germans_ dwelt; a barbarous People, and at that time of small Reputation, which now are called _Franks_--." And _Zonaras_, in the 3d Tome of his _Annals_, quotes this very Passage of _Procopius_. Also _Flavius Vopiscus_, in his Life of _Probus_, tells us, That the _Franks_ were discomfited by _Probus_ in their inaccessible Marshes.--_Testes sunt Franci inviis strati paludibus._ Also _Sidonius Apollinaris_ says thus; "_Francorum & penitissimas paludes, Intrares venerantibus Sicambris._" Now what we have said concerning the Neighbourhood of the _Franks_ to the _Chauci_, may be plainly proved by comparing of Places, and the Descriptions of their particular Seats. Those of the _Chauci_ are described by _Pliny_, _lib._ 16. _cap._ 1. Those of the _Franks_ by the _Rhetorician Panegyrist_, above mentioned: For _Pliny_ says thus, "We have seen in the _Northern_ parts the Nations of the _Chauci_, called _Majores & Minores_, where twice every 24 Hours the Ocean is forcibly driven in a great way over the Land; thro' a vast Passage which is there, making it a perpetual Controversy of Nature; and a Doubt, whether it ought to be reckon'd part of the Land or of the Sea." The Panegyrist speaks in these Terms, "_--Quanquam illa Regio_, &c. When thy noble Expeditions, O _Cæsar_, have proceeded so far, as to clear and conquer that Country, which the _Rhine_ runs through, with his cunning Mæanders or Windings, [_Meatibus callidis_, for so it must be read, and not _Scaldis_, as in some Copies,] and embraces in his Arms a Region, which I can scarce call Land; 'tis so soak'd with Water, that not only the Marshy part of it gives way, but even that which seems more firm, shakes when trod upon, and trembles at a Distance under the Weight of the Foot." We think therefore we have made it plain from what _Seats_ the Nation of the _Franks_ first came into _Gallia_; that is to say, from that marshy Country which lies upon the _Ocean_, between the Rivers _Elb_ and _Rhine_: which may be further confirm'd by this Argument. That the _Franks_ were very well skill'd in maritime affairs, and sail'd far and near all about those Coasts; For so says _Eutropius_, _lib._ 9. where he gives a short History of the Emperor _Galienus_. "After this time, when _Carausius_ had in charge to scour the Sea-coasts of _Belgia_ and _Armorica_, then infested by the _Franks_ and _Saxons_, &c." The very same thing _Paulus Orosius_ mentions, _lib._ 7. Also what the _Panegyrist_, before cited, says in a certain Place, has Reference to this.--"The _Franks_ (says he) are cruel above all others; the tide of whose warlike Fury surmounting that of their very Ocean it self, carried them to the Sea-coasts of _Spain_, which they very much infested with their Depredations." And therefore the Emperor _Justinian_, when he explains to the _General Governor_ of _Africk_ the duty of his Office, makes mention of those _Franks_ which were seated in a certain part of _Gallia_, bordering upon _Spain_. But we find a very memorable Passage; which highly sets forth the great Glory of their war-like Atchievements, in another place of that Panegyrick; _viz._ That a small Body of _Franks_, which _Probus_, the Emperor had overcome and carried captive into _Pontus_, seiz'd on some Ships, wandred all about the Sea-coasts of _Græcia_ and _Asia_, invaded _Sicily_, took _Syracusa_, and afterwards laden with Booty, return'd into the Ocean thro' the _Streights_ of _Gibraltar_. "Recursabat in animos sub _Divo Probo_ & paucorum ex _Francis_ Captivorum incredibilis audacia, & indigna foelicitas: qui à Ponto usque correptis navibus, Græciam Asiamque populati, nec impunè plerisque Lybiæ littoribus appulsi, ipsas postremò navalibus quondam victoriis nobiles ceperant Syracusas: & immenso itinere permensi, Oceanum, qua terras rupit intraverant: atque ita eventu temeritatis, offenderant, nihil esse clausum piraticæ desperationi quò navigiis pateret accessus." And, as farther Arguments of what I have been proving, may be added all those Places in several Authors, which inform us that the Habitations of the _Franks_ were Bordering upon the _Batavians_. The same _Rhetorician_, in his Speeches to _Maximianus_ and _Constantine_, says,--"Many thousand _Franks_, who had crossed the _Rhine_, and invaded _Batavia_, with other Countries on this Side, were slain, driven out, or carried away captive." Besides there is a notable Instance in _Corn. Tacitus_, lib. 20. where speaking of the Neighbourhood of _Frisia_ and _Batavia_ to each other, he mixes the _Caninesates_ among them, whose Custom in Electing their Kings was, (as I shall hereafter shew) the very same with that of the Franks.--"Ambassadors (says he) were sent to the _Caninesates_, to persuade them to enter into the Confederacy: That People inhabit one part of the Island, equal as to their Descent, Laws and Valour, to the _Batavians_; but inferior in Number.--And again--_Brinnio_ being set upon a Shield (according to the Custom of the Country) and hoisted up on Men's Shoulders, was chosen their Commander." Which Words will prove of no small Authority for us, when we come hereafter to that Part of the Controversy. The Case being so; I cannot forbear wondring at the Opinion of the Learned _Andreas Tarnebus_, who despising the Authority of so many grave and ancient Writers, says, that he thinks the _Franks_ were originally of _Scandinavia_: because in _Ptolomy_ he finds the _Phirassi_ seated in that Peninsula, which Word he will needs suppose to be corrupted; and that, instead of it, the Word _Franci_ ought to be there: but brings no Reason for his Opinion more than his own mere guess, tho' this Opinion differs manifestly from all other ancient Authors. As to all those who are pleas'd with Fables, and have deduced the Original of the _Franks_ from the _Trojans_, and from one _Francion_, a Son of _Priam_, we can only say, that they furnish Materials for _Poets_ rather than _Historians_: And among such, _William Bellay_ deserves the first Place; who, tho' he was a Person of singular Learning and extraordinary Ingenuity; yet in his Book, which treats of the Antiquities of _Gallia_ and _France_, seems rather to have design'd a _Romance_, like that of _Amadis_, than a true History of the _Francogallican_ Affairs. * * * * * CHAP. V. _Of the Name of the_ Franks, _and their sundry Excursions; and what time they first began to establish a Kingdom in_ Gallia. But I think it requisite that we should enquire a little more carefully into this Name of _Franks_; which, as we told you before, is not to be found in any of the ancient Descriptions of _Germany_. That I may no longer detain the Reader in Suspence, it must needs be, that either the Nation of the _Franks_, by which such mighty things were done, was at first very obscure and mean, (as we see in _Switz_, an ordinary Village) yet because the first beginning of the Liberty of those Countries proceeded from thence, gave the name of _Switzers_ to all the rest of the _Cantons_: Or (which seems to me most probable) this Appellation had its Original from the Occasion; _viz._ When those that set up for the prime Leaders and Beginners, in recovering the publick Liberty, called themselves _Franks_; by which name the _Germans_ understood such as were _Free_, and under no Servitude; as the Writers of that Nation do unanimously hold: And therefore in ordinary Speech, by a _Frank_ was meant a _Freeman_, by a _Franchise_, an _Asylum_, or Place of Refuge; and _Francisare_ signified to restore to liberty and freedom. The first Proof we shall give of this, is, what _Procopius_ in his first Book of the Gothick Wars relates. The _Franks_ (says he) were anciently by a general name call'd _Germans_; but after they exceeded their Limits, they obtain'd the name of _Franks_: Of the same Opinion I find _Gregory of Tours_, the _Abbot_ of _Ursperg_; _Sigibertus_ and _Ado_ of _Vienne_, and _Godfrey_ of _Viterbo_ to have been, _viz._ That they had the Name of _Franks_ from their _freedom_, and from their _ferocity_, (alluding to the sound, of the words _Francos Feroces_), because they refused to serve as Soldier under _Valentinian_ the Emperor, and to pay Tribute as other Nations did. A second Proof may be that of _Cornelius Tacitus_, who in his 20th Book, speaking of the _Caninesates_, whom we have formerly demonstrated to have been the very-next Neighbours, if not the true _Franks_ themselves, and, of their Victory over the _Romans_, he has this expression: _Clara ea victoria, &c._ "That Victory (says he) was of great Reputation to them immediately after it, and of great Profit in the Sequel; for having by that Means got both Weapons and Ships into their Possession, which before they were in great want of; their Fame was spread over all _Germany_ and _Gaul_, as being the first beginners of liberty;" _Libertatis Auctores celebrabantur._ For the _Germans_ thereupon sent Ambassadors, offering their Assistance. May the _Omen_ prove lucky! and may the _Franks_ truly and properly deserve that name; who after having shaken off that Yoke of _Slavery_, imposed upon them by _Tyrants_, have thought fit to preserve to themselves a commendable _liberty_ even under the Domination of _Kings_: _For to obey a King is not servitude_: neither are all who are govern'd by Kings, presently for that Reason to be counted _Slaves_, but such as submit themselves to the unbounded Will of a _Tyrant_, a _Thief_, and _Executioner_, as Sheep resign themselves to the Knife of the Butcher. Such as these deserve to be called by the vile names of _Servants_ and _Slaves_. Therefore the _Franks_ had always _Kings_, even at that very time when they profess'd themselves the _vindicators_ and _assertors_ of the _publick liberty_: And when they constituted _Kings_, they never intended they shou'd be _Tyrants_ or _Executioners_, but _keepers_ of their _Liberties, Protectors, Governors_ and _Tutors_. Such, in short, as we shall describe hereafter, when we come to give an Account of the _Francogallican_ Government. For, as to what a certain, foolish and ignorant _Monk_, called _John Turpin_, has wrote (in his Life, or rather Romance of _Charlemagn_) concerning the Origins of the Word _Frank_, viz. That whoever contributed Money towards the Building of St. _Denis's Church_, should be called _Francus_, that is, a freeman, is not worthy of being remembred, no more than all the rest of his trifling Works; stuft'd full of old Wives Tales, and meer Impertinencies. But this may be truly affirm'd, that this name of _Franks_, or (as _Corn. Tacitus_ interprets it) _Authors_ of _Liberty_, was an _Omen_ so lucky and fortunate to them, that through it they gain'd almost innumerable Victories. For after the _Franks_ had quitted their ancient Seats upon that glorious Design, they deliver'd not only _Germany_, their common Country, but also _France_ from the Tyranny and Oppression of the _Romans_; and at last (crossing the _Alps_) even a great part of _Italy_ itself. The first mention made of this illustrious name, we find in _Trebellius Pollios_ Life of the Emperor _Gallienus_, about the 260th Year after _Christ_. His Words are these: "Cum, &c. Whilst _Gallienus_ spent his time in nothing but Gluttony and shameful Practices, and govern'd the Commonwealth after so ridiculous a manner, that it was like Boys play, when they set up Kings in jest among themselves; the _Gauls_, who naturally hate luxurious Princes, elected _Posthumus_ for their Emperor, who at that time was _Gallienus's_ Lieutenant in _Gaul_ with imperial Authority. Gallienus thereupon commenced a War with _Posthumus_; and _Posthumus_ being assisted by many Auxiliaries, both of the _Celtæ_ and the _Franks_, took the Field along with _Victorinus_--." By which Words we may plainly perceive, that the _Gauls_ crav'd the Assistance of the _Franks_; that is, of these _Authors_ or _Beginners of liberty_, to enable them to shake off the Tyrant _Gallienus's_ Yoke: Which same thing _Zonaras_ hints at in his Life of _Gallienus_, when he says, [Greek: epolemise de phrangois], &c.--We find another mention made of the same People in _Flavius Vopiscus's_ Life of _Aurelian_, in these Words:--"At Mentz the Tribune of the 6th Legion discomfited the _Franks_, who had made Incursions, and overspread all _Gallia_; he slew 700, and sold 300 Captives for Slaves."--For you must not expect that our _Franks_, any more than other Nations in their Wars, were constantly victorious, and crown'd with Success. On the contrary, we read that _Constantine_, afterwards call'd the _Great_, took Prisoners two of their Kings, and exposed them to the Wild Beasts at the publick shews. Which Story both _Eutropius_ in his 9th Book, and the _Rhetorician_ in that Panegyrick so often quoted, make mention of. And because the same _Rhetorician_ in another place speaks of those Wars in the Confines of the _Batavi_, which we have shewn not to be far distant from the _Franks_, I will set down his Words at Length. _Multa Francorum millia, &c._ "He slew, drove out, and took Prisoners many thousand _Franks_, who had invaded _Batavia_, and other Territories on this side the _Rhine_." And in another Place says, "He clear'd the Country of the _Batavians_, which had before been possess'd by several Nations and Kings of the _Franks_; and not satisfied with only overcoming them, he transplanted them into the _Roman_ Territories, and forced them to lay aside their Fierceness as well as their Weapons." From which place we are given to understand, not obscurely, that _Constantine_, (being constrain'd to do so by the _Franks_) granted them Lands within the Bounds of the _Roman_ Empire. _Ammianus_, lib. 15. writes, that the _Franks_, during the Civil Wars between _Constantine_ and _Licinius_, sided with _Constantine_, and fought very valiantly for him. And in other places of the same Book he records, that during the Reign of _Constantine_, the Son of _Constantine_, great numbers of _Franks_ were at that _Court_ in high favour and authority, with _Cæsar_. "Afterwards, says he, _Malarichus_ on a sudden got power, having gained the _Franks_; whereof at that time great numbers flourish'd at Court."--During the Reign of _Julian_, call'd the _Apostate_, the same _Franks_ endeavour'd to restore the City of _Cologne_ (which was grievously oppress'd by _Roman_ Slavery) to its liberty: and forced it, after a long Siege, to surrender thro' Famine; as the same _Ammianus_ tells us, _lib._ 12. And because one Band of those _Franks_ fix'd their Habitations upon the Banks of the River _Sala_, they were thereupon called _Salii_; concerning whom he writes in the same Book,--"Having prepar'd there things, he first of all march'd towards the _Franks_; I mean those _Franks_ which were commonly called _Salii_, who had formerly with great boldness fix'd their Habitations within the _Roman_ Territories, near a place called _Toxiandria_." Again, in his 20th Book he makes mention of that Country possess'd by the _Franks_ beyond the _Rhine_, and called _Francia_.--"Having on a sudden pass'd the _Rhine_, he enter'd the Country of those _Franks_ called _Attuarii_, a turbulent sort of People, who at that time made great Havock on the Frontiers of _Gallia_."--And in his 30th Book, where he speaks of King _Macrianus_, with whom _Valentinian_ the Emperor had lately made a Peace on the Banks of the _Rhine_, in the Territory of _Mentz_,--"He died, says he, in _Francia_, whilst he was utterly wasting with Fire and Sword all before him, being kill'd in an Ambush laid for him by that valiant King _Mellobandes_." Now of this _Mellobandes_, King of the _Franks_, the same Author in his following Book gives this Character; "That he was brave and valiant, and upon the score of his Military Virtue constituted great Master of the Houshold by the Emperor _Gratianus_, and Lieutenant-General (in conjunction with _Nannienus_) of that Army which was sent against the _Lentiates_, a People of _Germany_." Afterwards, by virtue of a Treaty concluded between the _Franks_ and the Emperor _Honorius_, they defended the Frontiers of the _Roman Gallia_ against _Stilicon_: For _Orosius_ tells us in his last Book, "That the Nations of the _Alani_, _Suevi_ and _Vandali_, being (together with many others) encouraged by _Stilicon_; pass'd the _Rhine_, wasted the Territories of the _Franks_, and invaded _Gallia_." After the Emperor _Honorius_'s time, we have very little in History extant concerning the _Frank_'s Warlike Deeds. For to those Times must be apply'd what St. _Ambrose_ writes in his Letter (the 29th) to _Theodesius_ the Emperor: That the _Franks_ both in _Sicily_ and many other Places, had overthrown _Maximus_ the _Roman_ General. "He (says he, speaking of _Maximus_) was presently beaten by the _Franks_ and _Saxons_ in all places of the Earth." But in the Reign of _Valentinian_ the 3d, that is, about the 450th Year of _Christ_, 'tis plain, by the consent of all Writers, that _Childeric_, the Son of _Meroveus_, King of the _Franks_, compleated the Deliverance of _Gallia_ from the _Roman_ Tyranny, after a continued Struggle of more than 200 Years; and was the first that established in _Gallia_ a firm and certain Seat of Empire: For altho' some reckon _Pharamond_ and _Clodio-crinitus_ as the first Kings of the _Franks_, yet without doubt there were many before them, who (like them) had cross'd the _Rhine_, and made Irruptions into _Gallia_: but none had been able to settle any peaceable Dominion within the Limits of _Gallia_. Now _Meroveus_, who is commonly reckon'd the 3d King; tho' he was indeed King of the _Franks_, yet he was a Stranger and a Foreigner, not created King in _Gallia_, not King of the _Francogalli_; that is to say, not elected by the joint Suffrages of both Nations united: In short, all these were Kings of the _Franci_, and not of the _Francogalli_. But _Childeric_, the Son of _Meroveus_, was (as we said before) the first that was elected by the publick Council of the associated _Franks_ and _Gauls_, and he was created King; of _Francogallia_ presently after his Father _Meroveus_ had been kill'd in a Battel against _Attila_, during the Reign of _Valentinian_ the Third, a dissolute and profligate Prince. At which time the _Angli_ and _Scoti_ took Possession of _Great Britain_; the _Burgundians_ of _Burgundy, Savoy and Dauphine_; the _Goths_ of _Aquitain_: the _Vandals_ of _Africk_ and _Italy_, nay of _Rome_ it self; the _Hanni_ under their Leader _Attila_ wasted _Gallia_ with Fire and Sword. This _Attila_ having an Army of about Five hundred thousand Men, over-ran all _Gallia_ as far as _Thoulouse_. _�tius_ was at that time Governor of _Gallia_, who fearing the Power of _Attila_, made a League with the _Goths_, and by their assistance defeated _Attila_ in a Battel; wherein, 'tis said, they slew no fewer than a Hundred and eighty thousand Men. But the Conqueror _�tius_ being suspected by _Valentinian_ of aspiring to the Empire, was afterwards, by his Command, put to Death; and within a little while after, he himself was slain by _Maximus_ before-mention'd. During these Transactions, _Meroveus_, King of the _Franks_, taking his Opportunity, pass'd the _Rhine_, with a great Army; and joyning in Confederacy with many Cities, who assisted in the common Cause of the publick Liberty, possess'd himself at length of the innermost Cities belonging to the _Celtæ_, between the _Seine_ and the _Garonne_. He being dead, and both Nations (the _Gauls_ and _Franks_) united into one Commonwealth; they unanimously elected _Childeric_, the Son of _Meroveus_, for their King, placing him upon a Shield according to ancient Custom; and carrying him upon their Shoulders thrice round the place of Assembly, with great Acclamations of Joy, and universal Congratulation, saluted him _King of Francogallia_. Of all which particulars, _Sidonius Apollinaris_, _Gregorius Turonensis_, _Otto Frising_, _Aimoinus_ and others are Witnesses; whose Testimonies we shall further produce, when we come to treat of the Manner of the Inauguration of the King. The Words of the same _Otto_, in the last Chapter but one of his 4th Book concerning their taking possession of several Cities, are these.--"The _Franks_, after having pass'd the _Rhine_, in the first place put to flight the _Romans_, who dwelt thereabouts; afterwards they took _Tournay_ and _Cambray_, Cities of _Gallia_; and from thence gaining ground, by degrees they subdued _Rheims_, _Soissons_, _Orleans_, _Cologne_ and _Triers_." And thus much may briefly be said touching the first King of _Francogallia_. To which we shall only subjoin this Remark: [Footnote: Hotoman's _Francogallia_ was written _Anno_ 1573.] _That altho' the Francogallican Kingdom_ has lasted from that time to this, almost One thousand two hundred Years; yet during so long a space, there are but three Families reckon'd to have possess'd the Throne, _viz._ the Merovingians; who beginning from Meroveus, continued it to their Posterity two hundred eighty three Years. The _Carlovingians_, who drawing their Original from _Charles the Great_, enjoy'd it 337 Years: And lastly, the _Capevignians_, who being descended from _Hugh Capet_, now rule the Kingdom, and have done so for Five hundred and eighty Years past. * * * * * CHAP. VI. _Whether the Kingdom of_ Francogallia _was_ hereditary _or_ elective; _and the manner of making its_ Kings. But here arises a famous Question; the Decision of which will most clearly show the Wisdom of our Ancestors.--_Whether the Kingdom of Francogallia were Hereditary, or conferr'd by the Choice and Suffrages of the People_, That the _German_ Kings were created by the _Suffrages_ of the _People_. _Cornelius Tacitus_, in his Book _Demoribus Germanorum_, proves plainly; and we have shown, that our _Franks_ were a _German_ People: _Reges ex nobilitate, Duces ex virtute sumunt_; "Their _Kings_ (says he) they chuse from amongst those that are most eminent for their _Nobility_; their _Generals_ out of those _that are Famous for their Valour:"_ Which Institution, [Footnote: 1574.] to this very day, the _Germans, Danes, Sweeds and Polanders_ do retain. They _elect_ their Kings in a _Great Council of the Nation_; the Sons of whom have this privilege (as _Tacitus_ has recorded) to be preferr'd to other Candidates. I do not know whether any thing cou'd ever have been devised more prudently, or more proper for the Conversation of a Commonwealth, than this Institution. For so _Plutarch_, in his Life of _Sylla_, plainly advises. "Even (says he) as expert Hunters not only endeavour to procure a Dog of a right good Breed, but a Dog that is known to be a right good Dog himself; or a Horse descended from a generous Sire, but a tryed good Horse himself: Even so, those that constitute a Commonwealth, are much mistaken if they have more regard to _kindred_, than to the _qualification_ of the Prince they are about to set over them." And that this was the Wisdom of our Predecessors in constituting the _Francogallican Kingdom_, we may learn, First, from the last Will and Testament of the Emperor _Charlemagn_, publish'd by _Joannes Nauclerus_ and _Henricus Mutius_; in which there is this Clause--"And if any Son shall hereafter be born to any of these, my three Sons, whom the People shall be _willing to Elect_ to succeed his Father in the Kingdom; My Will is, that his Uncles do consent and suffer the Son of their Brother to reign over that portion of the Kingdom which was formerly his Father's." Secondly, What _Aimoinus, lib._ I. _cap._ 4. says, of _Pharamond_, commonly counted the first King of the _Franks_, in these Words.--"The _Franks electing_ for themselves a King, according to the custom of other Nations, raised up _Pharamond_ to the Regal Throne." And again, _lib._ 4.--"But the Franks took a certain _Clerk_ or _Priest_ called _Daniel_; and as soon as his Hair was grown, _establish'd_ him in the Kingdom, calling him _Chilperic_." And _lib._ 4. _cap._ 67.--"King _Pipin_ being dead, his two Sons, _Charles_ and _Carlomannus_, were _elected Kings by the consent of all the_ Franks." And in another place--"As soon as _Pipin_ was dead, the _Franks_ having appointed a solemn _Convention, constituted_ both his Sons Kings over them, upon this foregoing condition, that they should divide the whole Kingdom equally between them."--And again, after the Death of one of the Brothers--"But _Charles_, after his Brother's Decease, was _constituted_ King by the _consent_ of all the _Franks_." Also, towards the end of his History of _Charles the Great_, he says, "The Nobility of the _Franks_ being solemnly assembled from all parts of the Kingdom; he, in their presence, called forth to him _Lewis_ King of _Aquitain_, (the only one of _Heldegardis's_ Sons then living) and _by the advice and consent of them all_, constituted him his Associate in the whole Kingdom, and Heir of the Imperial Dignity." Thus much out of _Aimoinus_. Many Testimonies of the like nature we find in _Gregorius Turen_ whereof we shall cite only these few following, _lib. 2. cap. 12._--"The _Franks_ (says he) having _expelled Childeric_; unanimously _elected Eudo_ for their King."--Also _lib. 4. cap. 51._--"Then the _Franks_ (who once looked towards _Childebert_ the Elder) sent an Embassy to _Sigebert_, inviting him to leave _Chilperic_ and come to them, that they by _their own Authority_ might make him King."--And a little after--"The whole Army was drawn up before him; and having set him upon a Shield, _they appointed_ him to be their King."--And in another place--"_Sigebert_ agreeing to the _Franks_ Proposals, was placed upon a Shield, according to the Custom of that Nation, and proclaimed King; and so got the Kingdom from his Bother _Chilperic_"--And presently after--"The _Burgundians_ and _Austrasians_ concluded a Peace with the _Franks_, and made _Clotharius_ King over them in all the three Kingdoms," Which particular the _Abbot_ of _Ursperg_ confirms. "The _Burgundians_ (says he) and _Austrasians_ having struck up a Peace with the _Franks_, advanced _Clotharius_ to be King and sole Ruler of the whole Kingdom."--And in another place--"The _Franks_ appointed one of his Brothers, called _Hilderic_, who was already King of the _Austrasians_, to be also their King." To this matter belongs what _Luitprandus Ticinensis_ writes, _lib. i. cap. 6._ "And when he was about to enter into that _Francia_ which is called _Roman_, (after having cross'd the Countries of the _Burgundians_) several Ambassadors of the _Franks_ met him, acquainting him that they were returning Home again; because being tired with long expectation of his coming, and not able any longer to be without a King, they had _unanimously_ Chosen _Odo_ or _Wido_, tho' 'tis reported the _Franks_ did not take _Wido_ upon this occasion for their King, &c." But concerning this _Odo_, the Story is memorable which _Sigibert_ relates; from whence we may more clearly be inform'd of the manner of their _rejecting_ their King's _Son_, and "_setting up_ another in his stead." For (_sub anno_ 890.) he says thus "But the _Franks_ neglecting _Charles_ the Son of _Lewis the Stammerer_, a Boy scarce ten years old; Elected, _Odo_ for their King, who was Son of _Duke Robert_, slain by the _Normans_." Also _Otto Frinsing Chronic. lib. 6. cap. 10._ "The _Western Franks_ (says he) with the consent of _Arnolphus_, chose for their King _Odo_ a valiant Man, and Son of _Robert_."--Also in the _Appendix_ to _Gregory_ of _Tours_, lib. 15. cap. 30. "After the Death of _Dagobert, Clodoveus_ his Son obtain'd his Father's Kingdom, being at that time very young, and all his _Leudes_ (that is, Subjects) _rais'd_ him to the Throne, _in Villa Masolano_."--Also _Sigebert_, in _chronic. anno_ 987.--"_Lewis_ King of the _Franks_ being dead, the _Franks_ had a mind to transfer the Kingdom to _Charles_ the Brother of _Lotharius_; but whilst he spent too much time, deliberating with his Council concerning that Affair, _Hugo_ acquires the Kingdom of the _Franks_, &c." There are many Testimonies, of the same Kind in _Ado_, viz. _anno_ 686.--"_Clodoveus_ the King dying, the _Franks_ elect _Clotarius_ his Son for their King." And again, "--_Clotarius_ having reigned four Years, died, in whose stead the Franks elected _Theodorick_ his Brother--." Again, _anno_ 669. "The _Franks_ establish'd in the Kingdom a certain Clerk, called _Daniel_, having caused him to quit his Tonsure and Orders, and name him _Chilperic_." And again,--"The _Franks_ appoint, as King over them, _Theodoric_ the Son of _Dagobert_"--. Also _Otto Frising_ chron. 6. cap. 13.--"_Otto_ (says he) King of the _Franks_ being dead, _Charles_ was created King by unanimous Consent--." The Appendix to _Greg. Turon._ _lib._ 11. _cap._ 101. says thus, "When _Theodoric_ was dead, the _Franks_ elected _Clodoveus_ his Son, who was very young, to be their King." And _cap._ 106. "But the _Franks_ appoint one _Chilperick_ to be their King." Also _Godfrey_ of _Viterbo_, _chron. part._ 17. _cap._ 4. "--But _Pipin_ in being elected by the _Franks_, was declared King by Pope _Zacharias_, _they having thrust their cowardly King_ Hilderic _into a Monastery_." From these Proofs, and very many others like them, I think 'tis most plain, that the Kings of _Francogallia_ were made such rather by the _Suffrages_ and _Favour_ of the _People_, than by any _Hereditary Right_. Of which a farther Argument may be the _Forms_ and _Ceremonies_ used by our _Ancestors_, at the Inauguration of their _Kings_. For we observe, the very same Custom was continued at the _Election_ of our Kings, which we told you before out of _Cornelius Tacitus_, was formerly practised by the _Caninesates_, (the _Franks_ own Country-men) _viz._ that they set their _Elected King_ upon a _Shield_, and carried him on high on Men's Shoulders. So did we; for whoever was chosen by the Votes of the People, was set upon a _Shield_, and carried thrice round the place of publick Meeting for _Election_, or round about the Army on Men's Shoulders, all the People expressing their joy by Acclamations, and clapping of Hands. _Greg. Turen. lib._ 2. where he makes mention of King _Clodoveus's_ Election,--"But they (says he) as soon as they heard these things, applauding him both with their Hands and Tongues, and hoisting him on a Shield, _appointed_ him to be their King--." Also _lib._ 7. _cap._ 10. where he speaks of _Gondebaldus_,--"And there (says he) placing their King upon a _Shield_, they lifted him up; but 'tis reported, that as they were carrying him round the third time, he fell down; so that he was scarcely kept from tumbling to the very Ground by those that stood about him." Of which Accident _Aimoinus, lib. 3. cap. 6._ gives us this Account,--"They called forth _Gondebaldus_, and according to the Custom of the ancient _Franks_, proclaimed him their King, and hoisted him on a Shield; and as they were carrying him the third time round the whole Army, of a sudden they fell down with him, and could scarce get him up again from the Ground--." The like says _Ado. Vien._ �tat. 6.--_"Sigebertus_ consenting to the _Franks_, was placed upon a Shield, according to the _Custom of that Nation_, and proclaimed King": And peradventure from hence arose that Form among those Writers, who treat of the Creation of a King;--_In Regem elevatus est._ But now we come to the third Part of this Controversy, in order to understand, how great the _Right and Power of the People_ was, both in _making_ and _continuing_ their Kings. And I think it is plainly prov'd from all our Annals, that the _highest Power_ of _abdicating_ their _Kings_, was lodged in the _People_. The very first that was created King of _Francogallia_, is a remarkable instance of his Power. For when the People had found him out to be a profligate lewd Person, wasting his time in Adulteries and Whoredoms, they removed him from his Dignity by universal Consent, and constrain'd him to depart out of the Territories of _France_: and this was done, as our Annals testify, in the Year of Christ 469. Nay, even _Eudo_, whom they had placed in his stead, abusing his Power thro' excessive Pride and Cruelty, was with the like Severity _turned out_. Which Fact we find attested by _Gregory of Tours, lib. 2. cap. 12. Aimoinus, lib. 1. cap. 7. Godfrey of Viterbo, part. 17. cap. 1. Sigibertus, sub annis 461, & 469. "Childeric_ (says _Gregorius_) being dissolved in Luxury, when he was King of the _Franks_, and beginning to deflower their Daughters, was by his Subjects _cast out of the Throne with Indignation_; whereupon he finding they had a Design to kill him, fled into _Thoringia_." But the _Abbot of Ursperg_ says, "the People were unwilling to kill him, but contented themselves with having _turn'd him out, because he was a dissolute Man_, and a Debaucher of his Subjects Daughters--." _Sigibertus_ says,--"_Hilderick_ behaving himself insolently and luxuriously, the _Franks thrust him out of the Throne_, and made _�gidius_ their King." And this most glorious and famous Deed of our Ancestors, deserves the more diligently to be remark'd, for having been done at the very Beginning, and as it were, the Infancy of that Kingdom; as if it had been a Denunciation, and Declaration, that the Kings of _Francogallia_ were made such, upon certain _known terms and Conditions_; and were _not Tyrants_ with _absolute unlimited_ and _arbitrary_ Power. Their Successors also, keeping up the same Custom, in the Year of _Christ_ 679, forced _Childeric_, their Eleventh King, to _Abdicate_, because he had behaved himself insolently and wickedly in his Government. And he having formerly caused a certain Nobleman, called _Bodilo_, to be tied to a Stake and whipp'd, without bringing him to a Tryal, was a few Days after slain by the same _Bodilo_. Our Authors are _Aimoinus, lib. 4. cap. 44_, _Trithemius, anno 678._ and _Sigebertus, anno 667_. The Severity of our Ancestors appear'd in the same Manner a little while after, in the Instance of their 12th King _Theodoric_; who being a wicked and covetous Prince, "the _Franks_ (says _Aimoinus_) _rose up against him_, and _cast him out of the Kingdom_, cutting off his hair by _force_," lib. 4. cap. 44.--_Ado_, �tat. 6. anno 696. but _Sigebertus_ sub anno 667. imputes a great many of his Crimes to _Ebroinus_ his Favourite and chief General. [Footnote: _Præfectus Regius._] "King _Theodorick_" (says he) "was _deposed_ by the _Franks_, because of the Insolence of _Ebroinus_, and his Brother _Hilderick_ was with unanimous Consent _chosen_ King." And _Ado_ says, "The _Franks_ cast _Theodorick_ out of the Kingdom, shaved _Ebroinus_ in the Monastery of _Lexovium_, and afterwards raised _Childerick_ to be King over them." Also the Appendix to _Greg. of Tours, lib. II. cap. 64._--"The _Franks_ rise up in _Arms_ against _Theodorick, cast him out_ of the Kingdom, and cut off his Hair: They shaved also _Ebroinus."_ The like Virtue our Ancestors exerted in the Case of _Chilperick_ their 18th King, whom they _forced to abdicate the Kingdom_, [Footnote: _Regno se abdicare coegerunt._] and made him a Monk, judging him unworthy to sit at the Helm of so great an Empire, [Footnote: _Propter inertiam._] _by reason of his Sloth._ Whereof _Aimoinus_, lib. 4. cap. 61. _Sigibertus_ and _Trithemius_, anno 750. and _Godfrey_, Chronic. part. 17. cap. 4. are our Witnesses. Again, a sixth Example of the like Severity is extant in _Charles the Gross_ their 25th King; who for the like _Cowardise_, and because he had granted away part of _France_ to the _Normans, suffering his Kingdom to be dismembred_, was [Footnote: _Ab optimatibus Regni repudiatas._] _rejected and turn'd out_ by the _Nobility_ and _Gentry_ of the Kingdom, as _Sigebertus_ tells us _anno 890_. Which same thing _Godfridus_ records, _part. 17._ But more at large _Otto Frising, chron. 6. cap. 9._ where he adds this memorable Passage,--"This Man (says he) who next to _Charles the Great_, had been the King of greatest Power and Authority of all the Kings of the Franks, was in a short time reduced to so low a Condition, that he wanted Bread to eat, and miserably begged a small Allowance from _Arnolphus_, who was _chosen_ King in his stead, and thankfully accepted of a poor Pension: From whence we may observe the uncertain and miserable State of all Human Greatness; that he who had govern'd all the _Eastern_ and _Western_ Kingdoms, together with the _Roman_ Empire, shou'd at last be brought down to such a Degree of Poverty, as to want even Bread." A Seventh Instance is _Odo_ the 26th King, who after he had been elected King in the Room of _Charles_ the Son of _Lewis_ the _Stammerer_, was in the 4th Year of his Reign, by the _Franks, banish'd_ into _Aquitain_, and commanded to abide there; they replacing in his stead the same _Charles_ the Son of _Lewis_. Which Fact is recorded by _Sigebertus_, sub anno 894. _Aimoinus_ lib. 5. cap. 42. and _Godfridus_ part. 17. We must add to this Number _Charles_ the 27th King, sirnamed (because of his _Dullness_) [Footnote: _Propter Stuporem ingenii._] _Charles_ the _Simple_: Who having thro' his Folly suffer'd his Kingdom to run to Decay, and lost _Lorrain_ (which he had before recover'd) was _taken and cast into Prison_, and _Rodolphus_ was _chosen_ in his place, as _Aimoinus, lib. 5. cap. 42._ and _Sigebertus, anno 926._ do testify. * * * * * CHAP. VII. _What Rule was observ'd concerning the Inheritance of the deceased King, when he left more Children than one._ All that we have above said, tends to prove, that the Kingdom of _Francogallia_ in old times, did not descend to the Children by _Right of Inheritance_ (as a private Patrimony does); but was wont to be bestow'd by the _Choice and publick Suffrages of the People_: So that now there is the less Room left for the Question,--What Rule was observed in Relation to the Children of the deceased King, when he left more than one behind him. For since the Supreme Power nor only of _Creating_, but also of _dethroning_ their Kings, was lodged in the _Convention_ of the _People_, and _Publick Council_ of the Nation; it necessarily follows, that the _ordering_ the _Succession_ (whether they should give it entirely to one, or divide it) was likewise in the _People_. Altho' in this place another Question may arise, _viz._ supposing the People shou'd _reject_ the Son of their King, and _elect_ a Stranger, whether any thing should be allowed to the first to maintain his Dignity? For the Solution, of which 'tis to be understood, that Lawyers reckon four Kinds of such Goods, as may be properly said to be under the King's [Footnote: _In Regis ditione._] Governance; _viz._ the Goods of _Cæsar_, the Goods of the _Exchequer_; the Goods of the _Publick_, and _Private_ Goods. The Goods of _Cæsar_ are such as belong to the _Patrimony_ of every Prince, not as he is _King_, but as he is Ludovicus, or _Lotharius_, or _Dagobertus_. Now this Patrimony is called by the _Gallican_ Institutions, _The King's Domain_; which cannot be alien'd, but by the Consent of the _publick Council_ of the Nation, as we shall make it appear hereafter, when we come to treat of the Authority of that _Council_. The Goods of the _Exchequer_ are such as are given by the _People_, partly to defend the King's Dignity, and partly appropriated to the Uses and Exigencies of the _Commonwealth_. The Goods of the _Publick_ (as the Lawyers call them) are such as inseparably belong to the _Kingdom_ and _Commonwealth_. The _private_ Goods are reckon'd to be such Estate, Goods and Fortune, as are esteemed to belong to every Father of a Family. Therefore upon the Death of any King, if the Kingdom be conferr'd on a Stranger, the _Patrimonial_ Estate, as Lawyers call it, (being what was not in the King's Power to alienate) shall descend by Inheritance to his Children: But that which belongs to the _Kingdom_ and _Commonwealth_, must necessarily go to him who is chosen King, because it is part of the _Kingdom_. Altho' it may be reasonable, that Dukedoms, Counties, and such like (by Consent of the _publick Convention_ of the People) may be assigned to such Children for the Maintenance of their Quality; as _Otto Frising_, Chron. 5. cap. 9. and _Godfrey of Viterbo_, tell us, That _Dagobert_ Son of _Lotharius_ being made King, assigned certain Towns and Villages near the _Loire_, to his Brother _Heribert_ for his Maintenance. Which _Aimoinus_ confirms, _lib._ 4. cap. 17. and further adds, that he made a Bargain with him, to live as a private Person, and to expect no more of his Father's Kingdom. Also in his 61. _chap._ where he speaks of King _Pipin_, "He bestowed (says he) some Counties on his Brother _Grison_, according to the _Order_ of the Twelve Peers." And to this belongs what _Greg. Turon._ writes, _lib. 7. cap. 32._--"_Gondobaldus_ sent two Ambassadors to the King with consecrated Rods in their hands, (that no Violence might be offer'd them by any body, according to the Rites of the _Franks_) who spoke these Words to the King, _Gondobaldus_ says, he is a Son of King _Clotharius_, and has sent us to claim a due Portion of his Kingdom." But to return to the Question, as far as it relates to the Succession of the Kingdom; I can find out no certain Rule or Law in _Francogallia_ touching that Matter; because (as I said before) the Kingdom was not hereditary. 'Tis true, that in many _Noble Patrimonies_ there was what we call _Fiefs_, Feuda; as _Otto Frising. lib. 2. cap. 29._ observes, "'Tis the Custom (says he) in _Burgundy_, which is also in most of the other Provinces of _France_, that the Authority of the Paternal Inheritance always falls to the Elder Brother, and his Children, whether Male or Female; the others looking on him as their Lord--." And that the same was practised among the whole Nation of the _Franks, Petrus de Vincis_, lib. epist. 6. epist. 25. and in other Places of his Writings, sets forth at large. But in the Succession of the Kingdom a different Rule was observ'd. For our Records do testify, that in old times the Kingdom of _Francogallia_, upon the Death of the King, was very often, not bestowed by the People on any one of his Sons, but divided into convenient Parcels, and a part assigned to each of them. Therefore when _Clodoveus_ the 2d King dyed, _anno_ 515. who left four Sons, _Theodorick, Clodoveus, Childebert_, and _Clotharius_, we find the Kingdom was thus divided among them; _Theodorick_ had the Kingdom of _Metz_ for his Share, _Clodoveus_ that of _Orleans, Clotharius_ that of _Soissons_, and _Childebertus_ that of _Paris_, as 'tis recorded by _Agathius_, lib. hist. 1. _Greg. Turon._ lib. 3. cap. 1. _Aimoinus_ lib. 2. cap. 1. _Rhegino_ sub anno 421. Again, after the Death of _Clotharius_ the 4th King, the Kingdom was divided among his four Sons. So that _Cherebertus_ had that of _Paris: Guntranus, Orleans: Chilpericus, Soissons:_ and _Sigebertus_ that of _Rheims_--, Greg. _lib. 4. cap. 22._ Aimoinus _lib. 3. cap. 1._ Rhegino _sub anno_ 498. On the other hand, _Otto Frising._ chron. 5. cap. 9. and _God. Viterb._ tell us, That about the Year 630, when _Lotharius_ the 7th King died, _Dagobertus_ his Son reigned _singly_ in _France_, and assigned to his Brother _Heribert_ some Cities and Villages on the River _Loire_, for his Maintenance. For from _Clodoveus_'s Time till now, the Kingdom of the _Franks_ was confusedly subdivided among the Sons, and the Sons Sons, each of which reigned over the part allotted him.--"The Extent of the Kingdom of the _Franks_ reaching now from _Spain_, as far as to _Hungary: Dagobert_ being sole King of all the _Franks_, gave Laws to the _Bavarians_." So says _Godefridus_, not without good Grounds, as many wise Men have thought. For, as _Justin_ tells us, _lib. 21._ "That Kingdom will be much more potent, which remains under the Domination of one Person, than when 'tis divided among many Brothers." But after some Years, when the Kingdom of the _Franks_ was excessively enlarged on all Sides, and King _Pipin_ was dead, the _General Council_ of the _Gauls_ changed this Method again. Which serves to confirm what we said before; _viz._ That the _whole Power_, relating to that Matter, was lodged in that _Council._ For _Eguinarthus_, in his Life of _Charlemagn_, writes thus, "--After King _Pipin'_s Death, the _Franks_ having assembled themselves in a _solemn general Convention_, did there _appoint_ both his Sons to be their Kings, upon this Condition, that they shou'd equally divide the whole body of the Kingdom between them: And that _Charles_ shou'd reign over that part of it, which their Father _Pipin_ enjoy'd; and _Carloman_ over the other Part which their _Uncle_ held." Also the _Abbot of Ursperg_ says,--"When _Pipin_ was dead, his two Sons _Charles_ and _Carloman_, by the _Consent of all the Franks_, were created Kings, upon Condition, that they shou'd divide the whole body of the Kingdom equally between them.--" The same Method in dividing the Kingdom, was practised after the Death of _Charlemagn_, as 'tis manifest by his last Will and Testament, recorded by _Johannes Nauclerus_, and _Eguinarthus_'s History of his Life. Wherein we find almost all _Europe_ so divided among his three Sons, that nothing was assigned either as a Portion or Dower, to his Daughters; but the marrying and providing for them was entirely trusted to the Care and Prudence of their Brothers. _Otto Frisingensis_, chron. 6. cap. 6. and _Rhegino_ in chron. anno 877. assure us, that the same Manner of dividing the Kingdom was practis'd in _East-France_, after the Death of _King Lewis the Stammerer_, in 874. Again, some Years after, _anno_ 880. after King _Lewis_ the 23d King's Death, the very same way of dividing the Kingdom was made use of; which however we are to observe, was _not in_ the _Power_ and _Arbitriment_ of _the Kings themselves_; but done by the _Authority_ of the _Publick Council_, as we may easily collect from these Words of _Aimoinus_, lib. 5. cap. 40. "The Sons (says he) of _Lewis_, late King of the _Franks_, met at _Amiens_, and divided their Father's Kingdom between them, _according to the Direction of their faithful Subjects._" From all which Arguments 'tis very plain, that anciently there was no certain Law or Right of _Francogallia_ touching this Matter; but the _whole Power of disposing_ of it was lodged in the _Publick Council_ of the Nation. Indeed afterwards in the Reign of _Philip_ the 3d, (the 41st King) it was ordained, that certain Lordships might be set out and assigned to younger Brothers: But even of this Law there were various Interpretations, and many Controversies arose concerning Daughters; so that we can deliver nothing for certain in this Affair; only thus much we may truly say, That _if the Ancient Institution of our Ancestors ought to be our Rule, the Determination of this whole Matter must be left to the Publick General Council of the Nation:_ that according to the Number of Children, some particular Lordships or Territories, may _(by its Authority)_ be assigned for their Maintenance. * * * * * CHAP. VIII. _Of the_ Salick Law, _and what Right_ Women _had in the King's their Father's Inheritance_. Because we have undertaken to give an Account of the _Law_ and _Right_ of _Regal Inheritance_, we must not omit making Mention of the _Salick Law_; which is both daily discours'd of by our Countrymen, and in the Memory of our Forefathers serv'd to appease a great and dangerous Contention, which arose touching the Succession to the Crown. For when (_Anno_ 1328.) _Charles the Fair_, Son of _Philip the Fair_, died, leaving his Wife with Child of a Daughter, (which some Months after was born) _Edward King of England_ (Son of _Isabella_, the Daughter of _Philip the fair_, and Sister to _Charles_ lately dead) claimed the Inheritance of his Grandfather's Kingdom as his Right. But _Philip of Valois_, Cousin germain by the Father's Side to the deceased King, standing up, alledged that there was an ancient Regal Law, called the _Salick Law_, by which _all Women_ were excluded from the Inheritance of the Crown. Now this Law both _Gaguinus_ and other Writers of like Stamp tell us, was written by _Pharamond_; and he calls it a most famous Law, even to his Time. For in his Life of _Philip of Valois_; "The _Salick_ Law (says he) was a Bar to _Edward_'s Title; which Law being first given by _Pharamond_ to the _Franks_, has been religiously observed, even to those Days. By that Law, only the Heirs Male of our Kings are capable of governing the Kingdom, and no Females can be admitted to that Dignity. The Words of that Law are these: _Nulla hereditatis portio de terrâ Salicâ ad mulierem venito; Let no Part of the Inheritance of_ Salick _Land come to a Woman_. Now (says _Gaguinus_) the _French_ Lawyers call _Salick_ Land, such as belongs only to the King, and is different from the _Alodial_ which concerns the Subjects; to whom, by that Law, is granted a free Dominion of any thing, not excluding the Princely Authority." And to the same Purpose, not only almost all the _Francogallican Historians_, but even all the _Lawyers_ and _Pettifoggers_ have wrote to this Day, as _Paponius_ testifies, _Arrest._ lib. 4. cap. 1. So that now the mistake has prevailed so far, as to have obtain'd the Force of a Law. To explain this, it must be remembred (which we formerly gave an Account of) that the _Franks_ had two Seats of their Empire, and two Kingdoms; One in _France_, which remains to this Day; The other beyond the _Rhine_, near the River _Sala_; from whence they were called _Salii_, and _Salici Franci_ (joyning the two Names together) but for the most part briefly _Salici_; the Kingdom of these last, and even their very Name is in a Manner extinct. _Ammianus Marcellinus_ makes mention in his History (as we told you before) of these _Salii_, and shews, that they are called the _Eastern Franks_, as the others were called the _Western_. Now as there were two Kingdoms of the _Franks_, so they had different Laws: those that belonged to the _Salii_, were called _Salick_; those that belonged to the _Francogalli_, were called _French. Eguinarthus_ in his Life of _Charles_ the Great says thus:--"After he had assumed the Imperial Title, finding that his Peoples Laws were in many Things deficient, (_for the_ Franks _have two Laws very different from each other in many Cases_,) he thought of adding such as were wanting."--The Author of the Preface to the _Salick_ Law has this Passage.--"The renowned Nation of the _Franks_, before it was converted to the Catholick Faith, enacted the _Salick_ Law by the Great Men of the Nation, who at that Time were their Governors; and from among a great many, four Persons were chosen; _Wisogast, Arbogast, Salogast_, and _Windogast_; who, during three Conventions [_tres mallos_] carefully perusing all Causes from their Original, gave their Judgment and Decree of every one of them in this Manner, &c.--" _Sigebertus_ in Chron. anni 422. & _Otto Frising_, lib. 4. cap. penult. make use of almost the same Words. "From that time (say they) the Laws recommended to them by _Wisigastaldus_ and _Salogastus_, began to be in Force. By this _Salogastus_, they tell us, that Law was invented, which from his Name is to this Day called the _Salick_ Law; and the most noble of the _Franks_, called _Salici_, observe it at this time."--Thus say the old Chronographers. By which we may refute the Error of such as derive the _Salick_ Law, _à Sale_, that is, _Prudence_; or what is called corruptly _Lex Salica_, instead of _Gallica_; than which nothing can be more absurd. But much greater Errors spring from the same Fountain: First, That People are so far imposed upon by those Authors, as to believe the _Salick_ Law had reference to the _Publick Right_ of the _Commonwealth_ and the _Government_, also to the _Hereditary Succession_ of the Kingdom. Now the very Records or Tables of this _Salick_ Law were not many Years ago found and brought to Light; from whose Inscription it appears, that they were first written and publish'd about _Pharamond'_s time: Besides, that all the Heads and Articles, both of the _Salick_ and _French_ Laws, were Constitutions relating only to _private Right_ between Man and Man, and meddled not with the _Publick_ Right of the Kingdom or Commonwealth: among the rest, one Chapter, _tit. 62._ has this in it.--"Of the _Salick_ Land, no Part or Portion of Inheritance passes to a Female; but this falls to the Male Off-spring; that is, the Sons shall succeed to the Inheritance: But where a Dispute shall arise (after a long Course of Time) among the Grandsons and great Grandsons, _de alode terræ_; [Footnote: _Allodium_ is the contrary to _Feudum, Gothick_ words, for which 'tis difficult to find proper _English_.] let it be divided, _Non per stirpes sed per capita."_ The like Law, _Extat apud_ Ripuarios, _tit._ 58. _Item apud_ Anglos, _tit._ 7. Where they are so far from enacting any thing relating to the Inheritances of Kingdoms, that they do not so much as affect _Feudal_ Successions, but only belong to _Allodial_; altho' a Portion was assigned to Women out of those _Allodial_ Lands. Which Way soever this Matter may be, 'tis manifest in the first Place, that altho' no Article, either of the _Frank_ or _Salick_ Law were extant, which debars Women from the Inheritance of the Crown; yet the Customs and Institutions of a Nation, preserv'd inviolate by universal Consent, during so many Ages, obtain the Force of a written Law: For tho' _Childeric_, the Third King, left two Daughters behind him at his Death, the Kingdom was given to his Brother _Lotharius_, and his Daughters excluded. Again, after the Death of _Cherebert_ the 5th King, who left three Daughters; the Succession devolv'd upon his Brother _Sigebert_. Also when _Gontrannus_ King of _Burgundy_ and _Orleans_ died, the Kingdom was conferr'd on his Brother _Sigebert_, not on his Daughter _Clotilda_. Lastly, _Philip_ of _Valois's_ Advocates might with greater Caution, as well as Efficacy, have argued for him out of the _Feudal_ Law, by which all Inheritances of _Fiefs_ descend to the Male Issue only, and not to the Female, who are not admitted to them. And when there happens a Want of Heirs Males in that Line or Branch wherein the Fief is lodged, then the _Feudum_ or _Fief_ returns back to the other Stock or Branch: which was the very Case at that Time. But such Fiefs as thro' a Depravation of the Law, are convey'd down to Women, cannot properly be called _Feuda_, but _Feudastra_, as in other of our Writings we have made it appear. * * * * * CHAP. IX. _Of the Right of Wearing a large Head of Hair peculiar to the Royal Family._ It will not be amiss in this Place to give some Account of a Custom of our Ancestors, relating to the Hair worn by the Royal Family: For 'tis recorded, that our Forefathers had a particular Law concerning it; _viz._ That such as were chosen Kings by the People, or were of the Regal Family, shou'd preserve their Hair, and wear it parted from the Forehead, on both Sides the Head, and anointed with sweet Oyl, as an Ornament and peculiar Mark of their being of the Royal Family; whilst all other Persons, how nobly born soever, had no right to wear a large Head of Hair; but were obliged to go with their Heads shorn or shaved, upon the Account (as 'tis probable) that they shou'd be more ready and expedite in their continual military Exercises, as the _Roman_ Histories tell us of _Julius Cæsar_, and several others. _Aimoinus_ lib. I cap. 4. says--"The _Franks_ chusing for themselves a King, according to the Custom of other Nations, raised, _Pharamond_ to the Throne, to whom succeeded his Son Clodio crinitus; For at that Time the Kings of the _Franks_ wore large Heads of Hair. Also lib. 3. cap. 61. _Gundoaldus_ being brought up by his Mother after the regal Manner, wore a long Head of Hair, according to the Custom of the ancient Kings of the _Franks_." In like Manner _Agathius_, lib. de Bell. Goth. I. where he speaks of _Clodoveus_, one of our Kings, who was taken in Battel by the _Burgundians_, (he calls him _Clodamirus_). "As soon (says he) as his Horse had thrown him, the _Burgundians_ espying his large Head of Hair, which fell back over his Shoulders, presently knew him to be the Enemy's _General_; for 'tis not lawful for the Kings of the _Franks_ to cut off their Hair, but even from their Childhood they remain untrimm'd, and always keep a large Head of Hair hanging low down upon their Backs." And we have many Instances that it was our Ancestors Custom, whenever they either deprived any one of the Crown, or took away all Hopes of obtaining the Kingdom, to cut off his Head of Hair. _Aimoinus_ in the same Place--"He earnestly beholding him, commanded his Hair to be cut off, denying him to be his Son.--Also--Having caused his Hair to be cut off a second Time, he put him in Prison at _Cologne_; from whence making his Escape, he fled to _Narses_, and suffer'd his Hair to grow again, &c." Which Story _Gregory_ of _Tours_, lib. 6. cap. 24. likewise records. Also _cap._ 44. where he speaks of King _Theodorick_.--"The Franks (says he) rose up in Arms against him, and cast him out of the Kingdom, and cut off his Head of Hair by Force." But there is a very remarkable, or rather horrible Story related by _Gregory_ of _Tours_, concerning _Crotilda_, the Queen Mother; who chose rather to have the Heads of her two Grandsons cut off than their Hair. 'Tis in his 3d Book, _cap._ 18.--"Our Mother (says the King to his Brother) has kept our Brother's Sons with her, and intends to advance them to the Throne; we must concert what Measures ought to be taken in this Affair; whether we shall order their Hair to be cut off, and to reduce them to the State of common Subjects; or whether we shall cause them to be put to Death, and afterwards divide the Kingdom between us: Then they sent _Archadius_ with a Pair of Scissars in one Hand, and a naked Sword in t'other to the Queen; who approaching her, showed them both to her, and said, Your Sons, most Glorious Queen, have sent me to know your Pleasure, what Destiny you are pleased to allot to these two Youths; whether by suffering their Hair to be cut off, you will have them to live; or whether you had rather have both their Throats cut. Whereupon She chose rather to see them both kill'd, than to have their Hair cut off." I further observe, that it was the Fashion when our Kings went to single Combat, to have their long Hair tied up in a large Knot a-top of their Helmets like a Crest; and that was their Cognizance or Mark in all their Fights. Therefore _Aimoinus_, lib. 4. cap. 18. where he speaks of the dreadful Combat between King _Dagobert_ and _Bertoaldus_, Duke of the _Saxons:_ "The King (says he) having his Hair, together with a Part of his Helmet, cut off with a Blow of a Sword on his Head, sent them by his Esquire to his Father, desiring him to hasten to his Assistance." Now when I consider what might be the Reasons of this Institution, I can find none but this. That since it had been the ancient Custom of the _Gauls_ and _Franks_ to wear their Hair long (as it was also of the _Sicambri_, and of most others in those Parts) our Ancestors thought fit to continue, and in Process of Time to appropriate this Ornament, and Mark of Distinction to the Regal Family. No Person, tho' but indifferently learn'd, needs any Proof that the _Gauls_ wore their Hair long, especially when he calls to mind that of the Poet _Claudian_, ex lib. in Ruffin. 2. _Inde truces flavo comitantur vertice_ Galli _Quos_ Rhodanus _velox_, Araris _quos tardior ambit_, _Et quos nascentes explorat gurgite_ Rhenus. Now that the _Franks_ did so too, whom we have shewn to be descended from the _Chauci_ or _Chaiici_, that single Passage of the Poet _Lucan_ is sufficient to confirm. _Et vos_ Crinigeros _bellis arcere_ Chaycos _Opposui, petitis_ Roman, &c. Which being so, we may easily comprehend the Reason why Strangers, who were ill affected towards our Nation, contumeliously called our Kings, who wore so great a Head of Hair, _Reges setatos, bristled Kings_; and not only so, but (tho' Bristles and long Hair be common to Lyons, Horses and Swine, all which are therefore called _Setosi_, or _Setigeri_) they stretched the Contumely so far, as to say, they had Hogs Bristles. From whence arose that filthy Fiction and foul Name, [Greek: trichorachaton] of which _Georgius Cedrenus_ writes thus in his History, [Greek: "Helegonto de hoi ek tou genous hekenou katagomenoi kristatoi ho hermêneuetai trichorachai heichon gar kata tês racheôs autôn trichas ekphuomenas hôs choiroi"] that is, "They who were of the Kingly Race were called _Cristati_, which may be interpreted _Bristleback'd_; because they had all along their Back bones, Bristles growing out like Swine"--, Which Passage of _Cedrenus_, I believe, is corrupted, and instead of the Word [Greek: kristatoi], ought to be [Greek: setatoi], or perhaps both. For as some Persons called them pleasantly _Christati_ by Reason of their large erected Bunch of Hair upon the Tops of their Helmets; so their Ill-Willers called them upbraidingly _Setati_, or _Setigeri_. If _Cedrenus_ had not been so very plain in this Passage, and the Appellation of _Cristati_ be to be retained, I shou'd rather have thought they might have been called [Greek: trichocharaktoi], as being remarkable for their large Heads of Hair. * * * * * CHAP. X. _The Form and Constitution of the_ Francogallican _Government_. These Things being thus briefly premised, we think it proper now to set forth in what Manner the Kingdom of _Francogallia_ was constituted. And we have already made it plain, that the _People_ reserv'd to themselves all the Power not only of _Creating_, but also of _Abdicating_ their _Kings_. Which Form of Government 'tis manifest our Ancestors had; before they were brought under by the _Romans_, "So that _the People_ (as _Cæsar_ tells us) _had no less authority and Power over their Kings, than the Kings had over the People_. Populus non minus in Regem, quam rex in populum imperii ac Potestatis retinet." Altho' 'tis probable the _Franks_ did not derive this Constitution of their Commonwealth from the _Gauls_; but from their Countrymen, the _Germans_; of whom _Tacitus_, lib. de mor. _Germ._ says,--"Regibus non est infinita aut libera Potestas. Their _Kings_ have not an _Arbitrary_ or _Unlimited Power_." Now 'tis manifest, that no Form of Government is more remote from Tyranny, than this: for not one of the three distinguishing Marks, or Characteristicks of _Tyranny_, which the old Philosophers make mention of, can be found in the Form and Constitution of our Government. First, as to a forced Obedience; _i. e._ that a King shou'd rule over a People against their Wills; we have shewn you already, that the _Supreme Power_, both of _Electing_ and _Abdicating_ their _Kings_, was in the _People_. Secondly, as to a Life-guard composed of Foreigners, (which they reckon the Second Mark of _Tyranny_); so far were our _Francogallian_ Kings from making use of Mercenary Strangers for their Guards, that they had not so much as their own Countrymen and Citizens, for that Purpose; but placed their whole Trust and Confidence in the Love and Fidelity of their Subjects; which they thought a sufficient Guard. As an Argument of this, we may observe what _Gregory of Tours_ writes, lib. 7. cap. 18. and _Aimoinus_, lib. 3. cap. 63.--"King _Gontrannus_ being inform'd by an ordinary Fellow at _Paris_, that _Faraulphus_ lay in Wait for him, presently began to secure his Person by Guards and Weapons; so that he went no whither (not even to the Holy Places) without being surrounded with armed Men and Soldiers." We have at present a very famous History extant of St. _Lewis_, written by that excellent Person _Joannes Jonvillæus_, who lived very familiarly with that King for many Years; in which whole History there is not the least Mention made of Guards or Garisons, but only of Porters or Doorkeepers; which in his native Tongue, he calls Ushers. Now as to the third Mark of _Tyranny_, which is when Matters are so carried, that what is done tends more to the Profit and Will of the _Person governing_, than to that of the _governed_, or the Good of the _Commonwealth_; we shall hereafter prove, that the _Supreme_ Administration of the _Francogallican Kingdom was lodged in the Publick Annual Council of the Nation, which in After-Ages was called the Convention of the Three Estates_. For the Frame of this Government was the very same which the _Ancient Philosophers_, and among them _Plato_ and _Aristotle_ (whom _Polybius_ imitates) judged to be the best and most excellent in the World, as being made up and constituted of a Mixture and just Temperament of the three Kinds of Government, _viz._ the _Regal, Noble_, and _Popular_. Which Form of a _Commonwealth, Cicero_ (in his Books _de Republicâ_) prefers to all other whatsoever. For since a _Kingly_ and a _Popular_ Government do in their Natures differ widely from each other, it was necessary to add a _third_ and _middle State_ participating of both, _viz._ that of the _Princes_ or _Nobility_; who, by Reason of the Splendor and Antiquity of their Families, approach, in some Degree, to the _Kingly Dignity_; and yet, being _Subjects_, are upon that Account on the same Foot and Interest with the _Commons_. Now of the Excellency of this Temperament in a Commonwealth, we have a most remarkable Commendation in Cicero, taken by him out of _Plato_'s Books _de Republicâ_; which, because of its singular Elegancy, we shall here insert at length. "Ut in fidibus (inquit) ac tibiis, atque cantu ipsò, ac vocibus, tenendus est quidam concentus ex distinctis sonis, quem immutatum ac discrepantem aures eruditæ ferre non possunt; isque concentus ex dissimillimarium vocum moderatione concors tamen efficitur, & congruens; Sic ex summis, & mediis, & infimis interjectis ordinibus, ut sonis, moderatâ ratione _civitas_, consensu dissimillimorum concinit, & quæ _harmonia_ a musicis dicitur in _cantu_, ea est in _Civitate concordia_: arctissimum atq; optimum in Repub. vinculum incolumitatis, quæ fine justitiâ nullo pacto esse potest. _i. e._ As in Fiddles and Flutes, and even in Singing and Voices, a certain Consort of distinct Sounds is to be observed; which if it be alter'd, or not tunable, skilful Hearers cannot bear or endure: And this Consort of very different Tones, is, through as just Proportion of the Notes, rendred Concord, and very agreeable: Even so a Commonwealth, judiciously proportioned, and composed of the _first_, the _middlemost_, and the _lowest_ of the _States_, (just as in the Sounds) through the Consent of People very unlike to each other, becomes agreeable: And what Musicians in Singing call _Harmony_, that in a Commonwealth is _Concord_; the very best and strongest Bond of Safety for a Government, which can never fail of being accompanied with _Justice_." Our Ancestors therefore following this Method, of a just Mixture of all the three Kinds, in the constituting their Commonwealth, most wisely ordained, that every Year on the _Calends_ of _May_, a Publick _Council_ of the whole Nation should be held: at which _Council_ the great Affairs of the Republick shou'd be transacted by the common Consent and Advice of all the _Estates_. The Wisdom and Advantage of which Institution, appears chiefly in these three things: First, That in the Multitude of prudent Counsellors, the Weight and Excellency of Counsel shews it self more apparently, as _Solomon_ and other Wise Men have said. Secondly, _Because it is an essential part of liberty, that the same persons, at whose cost and peril any thing is done, shou'd have it done likewise by their authority and advice: for_ ('tis a common Saying) _what concerns all, ought to be approved by all_. Lastly, That such Ministers of State as have great Power with the Prince, and are in high Employments, may be kept within the Bounds of their Duty, thro' the Awe they stand in of this _great Council_, in which all the Demands and Grievances of the Subject are freely laid open.--"For such Kingdoms as are ruled by the arbitrary Will and Pleasure of _one Prince_, may most justly (as _Aristotle_ in his third Book of Politicks observes) be reckon'd Governments of Sheep; and brute Beasts, without Wit or judgment; not of Freemen, who are endued with Understanding, and the Light of Reason." The Case is thus--That even as Sheep are not guided or tended by one of their own Kind, nor Boys govern'd by one of themselves, but by something of more Excellency; even so a Multitude of Men ought not to be ruled and govern'd by one single Person, who perhaps understands and sees less than several others among them; but by many select Persons, who, in the Opinion of all Men, are both very prudent and eminent; and who act by united Counsels, and, as it were, by one Spirit, composed and made up of the Minds of many Wise Men. Now whereas it may be objected, that most Kings have a constant _Privy Council_ to advise them in the Administration of publick Affairs: We answer, That there is a great deal of Difference between a Counsellor of the _King_, and a Counsellor of the _Kingdom_. This last takes care of the Safety and Profit of the whole Commonwealth; the other serves the Humour and studies the Conveniences of one Man only; and besides, these King's Counsellors reside, for the most part, in one certain Place; or at least near the Person of the Prince, where they cannot be supposed to be throughly acquainted with the Condition of the more remote Cities or Provinces; and being debauched by the Luxury of a Court life, are easily depraved, and acquire a lawless Appetite of Domineering; are wholly intent upon their own ambitious and covetous Designs; so that at last they are no longer to be consider'd as Counsellors for the Good of the Kingdom and Commonwealth, but Flatterers of a single Person, and Slaves to their own and Prince's Lusts. Concerning this Matter, we have a most excellent Saying of the Emperor _Aurelian_, recorded by _Flavius Vopiscus_.--"My Father used to tell me (says _Aurelian_) that the Emperor _Dioclesian_, whilst he was yet a private Man, frequently said, That nothing in the World was more difficult than to govern well. For, four or five Persons combine together, and unanimously agree to deceive the Emperor they determine what shall be approved or disapprov'd. The Emperor, who, for the most part, is shut up in his Palace, knows nothing of the Truth of Affairs; he is compell'd to hear and see only with their Ears and Eyes; he makes judges, such Persons as do not deserve to be made so; he removes from Offices in the Commonwealth such as he ought to keep in; in short, a good, provident and excellent Emperor is sold by such Counsellors."--Now our Ancestors, in the constituting their Commonwealth, wisely avoiding these Mischiefs (as Mariners wou'd do dangerous Rocks) decreed that the _Publick_ Affairs shou'd be managed by the joynt Advice and Counsel of _all_ the _Estates_ of the _Kingdom_. To which Purpose the _King_, the _Nobles_, and the _Representatives_ of the _Commons_ out of the several Provinces, were obliged to meet at a certain Time every Year. And this very same Institution we find to have been that of many other Nations. First in our Ancient _Gallia_, where the Administration of Publick Affairs was intrusted with the _Common Councel of the chosen Men in the whole Nation_ as we have above demonstrated. But because we are now speaking of a Kingdom, I shall give Instances of them. 'Tis man felt, that in old Times the Council of the _Amphictions_ was instituted in _Greece_ (as _Suidai_ and others testify) by King _Amphyction_, Son of _Deucalion_; and therein it was ordained, that at a certain appointed Time every Year, _Representatives_ chosen out of the Twelve Commonwealths of _Greece_ shou'd meet at _Thermopylæ_, and deliberate concerning all the weighty Affairs of the Kingdom and Commonwealth: For which Reason, _Cicero_ calls this the _Common Council of Græcia_, _Pliny_ calls it the _Publick Council_. We find the like Wisdom in the Constitution of the _German Empire_, wherein the _Emperor_ represents the _Monarchical_ State, the _Princes_ represent the _Aristocratical_, and the _Deputies of the Cities_ the _Democratical_; neither can any Matter of Moment appertaining to the whole _German Republick_ be firm and ratified, but what is first agreed upon in that _great Convention of the Three Estates_. To this End was framed that ancient and famous Law of the _Lacedemonians_, which joyned the _Ephori_ to their _Kings_; "Who, as Plato writes, were designed to be like Bridles to the Kings, and the Kings were obliged to govern the Commonwealth by their Advice and Authority." _Pliny_, lib. 6. cap. 22. makes mention of the like Practice in the Island of _Taprobana_, where the King had thirty Advisers appointed by the People; by whose Counsel he was to be guided in the Government of the Commonwealth; "For fear (says he) lest the King if he had an unlimited Power should esteem his Subjects no otherwise than as his _Slaves_ or his _Cattel_." Furthermore, we find the very same Form of Administration of the Kingdom of England, in _Polydore Virgil_'s History of _England_, lib. 11. where he has this Passage in the Life of _Henry_ the First.--"Before this Time the Kings used to summon a publick Convention of the People in order to consult with them, but seldom: So that we may in some Manner say, that the Institution derived its Original from _Henry_: which took such deep Root, that it has always continued ever since, and still does so; _viz._ That whatever related to the Well governing or Conservation of the _Commonwealth_, ought to be debated and determin'd by the _great Council_. And that if either the _King_ or the _People_ shou'd act any thing _alone_, it shou'd be esteemed _invalid_, and as _nothing_, unless it were first approved and established by the _Authority of that Council_. And for fear this _Council_ shou'd be cumbred with the Opinions of an _unskilful Multitude_, (whose Custom it is to distinguish nothing justly) it was at first establish'd by a certain Law, what _Sort_ of Persons, and what _Numbers_ either of the _Priests_ or of the _People_ shou'd be called to this _Council_, which, after a _French_ Name, they commonly call _A Parliament_; which every King at the Beginning of his Reign uses to hold, and as often afterward as he pleases, or as _Occasion_ requires." Thus far _Polydore Virgil_. But among all the Laws and Customs of this Kind, there is none so remarkable as that of the _Spaniards_; who, when they _elect_ a King in the _Common-Council_ of _Arragon_, (in order to keep up a perpetual Remembrance of their Privileges) represent a Kind of Play, and introduce a certain _Personage_, whom they call by the Name of _The Law of Arragon_, [Footnote: _La justitia di Arragon._] whom (by a publick Decree) they declare to be greater and more Powerful than their King; and afterwards they harangue the King (who is elected upon certain Terms and Conditions) in Words which (because of the remarkable Virtue and Fortitude of that Nation in repressing the _unbridled Will_ of their Prince,) we will here set down at length.--"Nos que valemos tanto come vos, ii podemos mas que vos; vos elegimos Reii con estas ii estas Conditiones; intra vos ii nos un que manda mas que vos: That is, We, who are of as great Value as you, and can do more than you, do elect you to be our King, upon such and such Conditions: Between you and us there is _one_ of _greater Authority_ than you." Seeing then that the Case is so, and that _this has always been a constant and universal Law of all Nations, that are governed by a Kingly, and not by a Tyrannical Power_: 'Tis very plain, that this most valuable Liberty of holding a _Common-Council_ of the Nation, is not only a Part of the _People's Right_; but that all Kings, who by Evil Arts do oppress or take away this _Sacred Right_, ought to be esteemed _Violators of the Laws of Nations_; and being no better than _Enemies of Human Society_, must be consider'd not as _Kings_, but as _Tyrants_. But to return to the Matter in Hand. Our Commonwealth being constituted by the Laws of our Ancestors, upon the Bottom above-mention'd, and participating of all the three Kinds of Government; it was ordain'd, that once every Year (and as much oftner as important Occasions should make it necessary) a _Solemn General Council_ shou'd be held: Which for that Reason, was called a _Parliament_ of the _Three Estates_. By that Word was meant a Convention or Meeting of Men out of several Parts of the Country to one Place, there to confer and deliberate concerning the Publick Welfare: And therefore all Conferences (tho' between Enemies) in order to a Peace or Truce are always in our Chronicles called by the Name of _Parliaments_. Now of this Council, the _King_ sitting in his Golden Tribunnal, was _chief_; next to him were the _Princes_ and _Magistrates_ of the Kingdom; in the third Place were the _Representatives_ of the several Towns and Provinces, commonly called the _Deputies_: For as soon as the Day prefix'd for this Assembly was come, the _King_ was conducted to the Parliament House with a Sort of Pomp and Ceremony, more _adapted to popular Moderation_, than to _Regal Magnificence_: which I shall not scruple to give a just account of out of our own Publick Records; it being a Sort of _Piety_ to be pleas'd with the Wisdom of our Ancestors; tho' in these most profligate Times, I doubt not but it wou'd appear ridiculous to our flattering Courtiers. The King then was seated in a _Waggon_, and drawn by _Oxen_, which a _Waggoner_ drove with his _Goad_ to the Place of Assembly: But as soon as he was arrived at the Court, or rather indeed the Venerable _Palace of the Republick_, the Nobles conducted the King to the Golden Throne; and the rest took their Places (as we said before) according to their Degrees. This _State_, and in this _Place_, was what was called _Regia Majestas, Royal Majesty_. Of which we may even at this Day observe a signal Remain in the King's Broad Seal, commonly called the _Chancery_ Seal. Wherein the King is not represented in a _military Posture_ a Horse-back, or in a _Triumphant Manner_ drawn in his Chariot by Horses, but sitting in his Throne _Robe'd_ and _Crown'd_, holding in his Right Hand the Royal Sceptre, in his Left the Sceptre of Justice, and presiding in his _Solemn Council_. And indeed, in that Place only it can be said that _Royal Majesty_ does truly and properly reside, where the great Affairs of the Commonwealth are transacted; and not as the unskilful Vulgar use to profane the Word; and whether the King plays or dances, or prattles with his Women, always to stile him YOUR MAJESTY. Of all these Matters, we shall give only a few Proofs, out of many which we could produce. First, out of _Eginarthus_, who was _Chancellor_ to _Charles the Great_, and wrote his Life. These are his Words: "Wherever he went (speaking of _Charlemagn_) _about the publick Affairs_: he was drawn in a Waggon by a Pair of Oxen, which an ordinary Waggoner drove after his rustical Manner. Thus he went to the Courts of Justice, thus to the Place of the Publick Convention of his People, which every Year was celebrated for the Good of the Realm; and thus he used to return Home again." _Joannes Nauclerus_ gives us an Account of the very same Thing, in almost the same Words, in _Chron. Generat. 26_. So does the _Author_ of the _Great Chronicle_, in the Beginning of his Life of _Charlemagn_, Fol. 77. Neither ought this to seem so great a Wonder to any, who considers it was the Fashion in those Days for our Kings and Queens, and the Royal Family, to be drawn by _Oxen_; of which we have one Instance in _Greg. Turon. lib. 3. cap. 26. "Deuteria_, (says he) Wife of King _Childebert_, seeing her Daughter by a former Husband grown to Woman's Estate, and fearing lest the King (being in Love with her) should lye with her, caused her to be put into a Sort of Litter with untamed Oxen, and thrown Headlong off a Bridge." _Aimoinus, lib. 4. cap. 30._ makes mention of the Golden Throne, where he speaks of King _Dagobert_: "He proclaimed, says he, _Generale PLACITUM in loco nuncupato Bigargio_, a _Great Council_ in a Place named _Bigargium_: To which all the Great Men of _France_ assembling with great Diligence on the Kalends of _May_, the King thus began his Speech to them, sitting on his _Golden Throne_." Also in his 41st Chapter, speaking of King _Clodoveus_--Sitting in the midst of them, on his _Golden Throne_, he spoke in this Manner, &c. _Sigebertus in Chron. Anni 662._--"'Tis the Ancient Custom (says he) of the Kings of the _Franks_, every _Kalends of May_, to preside in a Convention of all the People, to salute and be saluted, to receive Homage, and give and take Presents." _Georgius Cedrenus_ expresses this in almost the same Words: [Greek: katta de ton Maion mêna prokaithesesai epi pantos tou ethnous kai proskunin autois kai antiproskunisthai hup autô dôrophoreisthai te katta sunêpheian kai antididonai autois] Now, concerning the _Authority_ of the _People_, who were thus gather'd together at the _Great Council_, we have many Testimonies, _Aimoinus, lib. 4. cap. 41._ speaking of _Clodoveus_ the Second; "Altho' (says that King in his Speech) the Care of our Earthly Principality _obliges_ us to call you together _Francigenæ cives_, and to consult you in Affairs relating to the Publick, &c."--Also in his 74th Chapter of the same Book--"In the Beginning of the Year he went into _Saxony_, and there he held a _General Convention every Year_, as he used to do every Year in _France_ also."--Again, _lib._ 4. _cap._ 13. where he speaks of _Charles_ the Great--"When the Hunting near _Aix la Chapelle_ was ended, as soon as he return'd, he held a _General Convention_ of his People, according to usual Custom, &c. _Cap._ 116. The Emperor having held Two _Conventions_, one at _Nimeguen_, the other at _Compiegn_, wherein he receiv'd the Annual Presents, &c. Again, _Cap._ 117. In the Month of _August_ he came to _Wormes_, and holding there the General Convention according to constant Practice, he received the Yearly Gifts which were offer'd him, and gave Audience to several Ambassadors, &c. Again, _Lib. 5. cap. 31._ The General _Placitum_ was held on the Ides of _June_, in the Town _Dusiacum_." And this may suffice touching this solemn _General Council_, which both _French_ and _German_ Historians, thro' a deprav'd Custom of the _Latin_ Tongue, called by different Names; sometimes _Curia_, sometimes _Conventus Generalis_, but for the most Part _Placitum. Gregorius, lib. 7 cap. 14_ says thus:--"Therefore when the Time of the _Placitum_ approached, they were directed by King _Childebert, &c. Aimoinus, lib. 4. cap. 109._ In the middle of the Month he held the General Convention at _Thionville_, where there was a very great Appearance of the People of the _Franks_; and in this _Placitum_, the singular Compassion of the most Pious Emperor eminently show'd it self, &c." Now it was the Custom in that _Council_ to send Presents from all Parts to the King; as may appear from many Places which might be quoted, wherein that _Council_ is called _Conventus Generalis. Aimoinus, lib. 4. cap. 64._ speaking of King _Pipin_--"He compell'd them (says he) to promise they would obey all his Commands, and to send him every Year at the Time of the _General Convention_, Three Hundred Horses, as a Gift and Token of Respect. _Item, cap. 85._ Not forgetting the Perfidy of the _Saxons_, he held the _General Convention_ beyond the _Rhine_, in the Town of _Kufftein_, according to the usual Custom." This _Council_ was sometimes called by another Name, _Curia_, the _Court_; from whence proceeded the common Saying, when People went to the _King's Hall_ or _Palace, we are going to Court_; because they seldom approach'd the King, but upon great Occasions, and when a _Council_ was call'd. _Aimoinus, lib. 5. cap. 50. "Charles_, (says he) the Son of the _Danish King_, sued (or prosecuted) several Noblemen of _Flanders_ very conveniently at this _Curia_, or _Court_. _Item, cap. sequenti_; _Henry_ King of the _Romans_ being dead, at that Great and General _Court, Curia_, held at _Mentz. &c._ Also _Otto Frising._ _Lib. Frideric._ I. _cap._ 40. After these Things, the Prince enter'd _Bavaria_, and there celebrated a General _Curia, Court_, in the Month of _February_. _Item, cap._ 43. _Conrade_ King of the _Romans_, calling the Princes together at _Francfort_, a City of _East France_, celebrated there a _General Court_." * * * * * CHAP. XI. _Of the_ Sacred Authority _of the_ Publick Council; _and what Affairs were wont to be transacted therein_. We think it necessary in this Place to consider what Kind of Affairs were wont to be transacted in this general _Annual Council_, and to admire the great _Wisdom_ of our Ancestors in _constituting our Republick_. We have (in short) observed that they are these that follow. First, the _Creating or abdicating of their Kings_. Next, the _declaring of Peace or War_. The _making of all Publick Laws_: The _Conferring_ of all _great Honours, Commands_, or _Offices_ belonging to the _Commonwealth_: The _assigning_ of any _part_ of the _deceased King's Patrimony_ to his Children, or giving _Portions_ to his _Daughters_, which they usually called by a _German_ Name _Abannagium_; that is, _pars exclusoria_, a Part set out for younger Children. Lastly, all such Matters as in Popular Speech are commonly called _Affairs of State_: Because it was not lawful to determine or debate of any Thing relating to the _Commonwealth_, but in the _General Council_ of the _States_. We have already produced sufficient Proofs of the _Electing_ and _Abdicating_ their _Kings_, as well from the last _Will_ and _Testament_ of _Charles_ the _Great_, as from several other Authors: To which we will add this one Passage more out of _Aimoinus_, lib. 5. cap. 17. where speaking of _Charles_ the _Bald_, he says thus,--"Having summon'd a _General Council_ at [Footnote: _Crecy._] _Carisiacum_, he there first gave his Son _Charles arma virilia_; that is, he girt him with a Sword, or knighted him, and putting a Regal Crown upon his Head, assign'd _Neustria_ to him, as he did _Aquitain_ to _Pippin_." Now concerning the _Administration_ of the _Kingdom_, _Aimoinus_ gives us this remarkable Instance, _lib._ 5. _cap._ 35. speaking of _Charles_ the _Bald_. "_Charles_ (says he) being about taking a Journey to _Rome_, held a general _Placitum_ on the Kalends of _June_ at _Compeign_; and therein was ordained under particular Heads, after what Manner his Son _Lewis_ should govern the Kingdom of _France_, in _Conjunction_ with his _Nobles_, and the rest of the _Faithful People_ of the _Realm_, till such time as he returned from _Rome_." Also in the same Book, _cap._ 42. speaking of _Charles_ the _Simple_: "Whose Youth (says he) the principal Men of _France_ judging (as it was indeed) very unfit for the exercise of the Government of the Realm, they held a _General Council_ touching these weighty Affairs; and the great Men of the _Franks_, _Burgundians_, and _Aquitanians_ being assembled, elected _Odo_ to be _Charles'_s _Tutor_ and _Governor_ of the Kingdom." Now concerning _the Power_ of _making Laws_ and _Ordinances_, that single Passage in _Gaguinus'_s Life of St. _Lewis_ is a sufficient Proof. "As soon (says he) as King _Lewis_ arrived at _Paris_, he called a _General Convention_, and _therein_ reformed the Commonwealth; making excellent Statutes relating to the Judges, and against the Venality of Offices, &c." Concerning the _conferring_ the _great Honours and Employments_ upon _Persons of approved Worth, Aimoinus lib. 5. cap. 36._ gives us this Instance; speaking of _Charles_ the _Bald_, he tells us, "That whereas he began (before his Inauguration) to distribute the Governments and great Offices of the Realm according to his own liking; the _Great Men summoned a General Council_, and sent Ambassadors to the King; neither would they admit him to be crowned till he had made use of their Advice and Authority in disposing of those great Employments. The Nobles (says he) being very much displeas'd, because the King _conferr'd Honours without their Consent_; for that Reason, agreed together against him, and summoned a _general Convention_ in the Town of _Witmar_, from whence they sent Ambassadors to _Lewis_, as _Lewis_ likewise sent his Ambassadors to them, &c." Also the Appendix to _Gregory_ of _Tours, lib. 11. cap. 54._ "That same Year (says he) King _Clotharius, cum Proceribus & Leudibus_, i. e. with the Nobility and free Subjects of _Burgundy_, met at _Troyes_, and when he earnestly solicited them to advance another Person to the same Place and Degree of Honour which _Warnhar_ (lately deceased) had enjoy'd, they unanimously refused to do it; and said, they would by no Means have any _Mayor of the Palace_, earnestly desiring the King to excuse them:" And thus they gained their Point with the King. To this Head may be referr'd all _the Contentions_ of such _Princes_, as were foreseen might be _dangerous to the Commonwealth_. These were debated in the _General Council_. For _Aimoinus_, lib. 4 cap. I. where he speaks of _Clotharius_, Son of _Chilperic_, from whom Queen _Brunechild_ demanded the Kingdom of _Austratia_, says thus:--"_Clotharius_ made answer, that she ought to call a _Convention_ of the _Nobles_ of the _Franks_, and there debate (by common Consent) an Affair relating to the Community. That as for him, he would submit to their judgment in all Things, and would not obstruct in any Measure whatever they should command." The same Thing is recorded in the _Appendix_ to _Gregory_ of _Tours_, lib. II. "_Clotharius_ (says he) made Answer to her, that he would refer the Difference between them, to the Determination of the _Select Franks_, and promis'd to fulfil whatsoever they should ordain." Also _Aimoinus_ lib. 5. cap. 12. where he speaks of King _Lewis_ the _Pious_, who was grievously tormented with the Contentions of his Sons, says thus,--"When Autumn approached, they whose Sentiments differ'd from the Emperor's, were for having the _General Convention_ held in some Town of _France_.--_Item_ cap. 13. He appointed the _General Convention_ of his People to be held at _Thionville_. And after a little Time, summon'd his People to meet on the Feast of St. _Martin_, and used all his Endeavours to recal his Son _Pipin_ who had absented himself; but he refused to come, &c." _Gaguinus_ making Mention of this Same Passage, says; "When the Conspirators found out they should not be able to dethrone the King, without the Consent of the _Nobility in Convention_, they labour'd by all Means to have the _Great Council_ held within the Limits of _France_. But _Lewis_ knowing for certain that those _Franks_ were gained by his Enemies against him, refused it, and summon'd the Convention to meet at _Mentz_, and ordered that none should be admitted _Armed_ to the Council. But his Sons, (who had conspired against their Father) lest they should want the _Authority_ of a _Publick Convention_, assembled a Council at _Compiegne_, consisting of the Bishops and Nobility of the Kingdom. And _Lotharius_ taking his Father out of Custody, brought him to _Compiegne_." Again, _Aimoinus_, lib. 5. cap. 38. where he speaks of Lewis _the Stammerer_, who held a _Council_ at _Marsua_, wherein he treated a Peace with his Cousin, says: "In that _Placitum_, or _Parliament_, these Articles which follow were agreed upon between them, _by and with the Consent of the faithful Subjects of the Realm_." To proceed, We find further, that it was the Custom (when any _Prince_, or _Person_ of _Extraordinary Quality_, was _accused of any Crime_) to summon him to appear before the _Great Council_, and there he was to stand his _Trial_. Thus in the Reign of King _Clotharius_, when _Queen Brunechild_ stood accused, and was found guilty of many capital Crimes, the King made a Speech to the Estates of the _Great Council of Francogallia_, in these Words; which are recorded by _Aimoinus_, lib. 4. cap 1. "It belongs to you, my most dear Fellow-Soldiers, and high Nobility of _France_, to appoint what Kind of Punishment ought to be inflicted on a Person guilty of such enormous Crimes, &c." And _Ado �tat 6. sub Anno_ 583. tells us, "The _Franks_ passing Sentence upon her in the King's Presence, condemn'd her to be torn in Pieces by wild Horses." Now concerning the _dividing_ of the _Royal Patrimon_, and the _Appanages_, we have the same Person's Testimony, _lib. 5. cap. 94._ where speaking of _Charlemagn_, he has these Words--"These Matters being ended, the King held a _Convention_ of the _Nobility and Gentry_ of the _Franks_, for the making and maintaining a firm Peace among his Sons, and dividing the Kingdom into Three Parts, that every one of them might know what Part of it he ought to defend and govern, in Case they survived him."--Also in that Place where he speaks of the Partition made among the Children of _Lewis_, lib. 5. cap. 40. he says thus.--"They went to _Amiens_, and there they divided their Father's Kingdom among them, _according to the Advice and Direction of their faithful Subjects_." Further, _cap._ 41. where he writes of _Carloman_, who held his _Great Council_ then at _Worms_.----"To this _Placitum_ (says he) came _Hugo_, and preferred his Petition for that Part of the Kingdom, which his Brother _Lewis (in Locarium acceperat)_ had rented of him, or received in Pawn." We may further observe, from very many Instances, that whenever the King had any expensive Design in Hand, such as the Building of Churches or Monasteries, he took first the Advice of the _Council_ of the _Estates_. For _Aimoinus_, lib. 4. cap. 41. where he speaks of _Clodoveus_ the Second, tells us, that sitting on his Throne, he began his Oration to the _General Council_ in these Words.--"_Quamquam Franciginæ cives, &c._ Altho' (says he) the Care I ought to take of my Kingdom, obliges me to take your Advice in all Matters relating to the Publick, &c." And thus much may suffice on this Point. From all which we think it appears plainly, that the whole Power of the Administration of the Kingdom was lodg'd in the _Publick Council_, which they called _Placitum_; because according to the Idiom of the _Latin_ Tongue, _that_ is properly termed _Placitum_, which after having been proposed and debated in a Council of many Persons, is at last agreed to, and resolved upon by them. And therefore _Cicero_, with others of the Ancients, were wont to call such-like Determinations, _Placita Philosophorum_. Since therefore the Matter is so, I hope the Opinion which we have formerly given in some of our other Books, will not be esteemed absurd; _viz._ That the common Form used by the King's Secretary in the last Clause of our Ordinances and Edits, _Quia tale est PLACITUM nostrum_, arises from hence: For anciently those Laws were written in the _Latin Tongue_, (as is sufficiently proved by _Aimoinus_, the _Capitulary of Charles the Great_, and many other Records); but afterwards when the King's Secretaries or Clerks began to make Use of the Vulgar Tongue, thro' Ignorance, or rather Malice, they translated it thus,--_Car tel est nostre Plaisir: For such is our Will and Pleasure_. Now as to the _Power_ of the _People_, we have this farther Argument extant in the same Capitulary of _Charles the Great_.--"Let the _People_ (says it) be consulted touching all the Heads of the new Laws, which are to be added to the former; and after they have _all given their Consents_, let them set their Hands and Seals to every Article." From which Words, 'tis apparent that the People of _France_ were wont to be bound by such Laws _only_, as they had publickly agreed to in their _Parliaments_. Also _in fine Leg. Aleman._ we find this Passage.--"This is decreed by the _King_ and his _Nobles_, and all the Christian _People_ which compose the Kingdom of the _Merovingians_." Also _Aimoinus_, lib. 5 cap. 38.--"In this _Placitum_ the Laws which follow were agreed upon, to be observed between them, by the _Consent_ of the faithful _Subjects_.--An Agreement made between the Glorious Kings, &c. by the _Advice_ and _Consent_ of their faithful Commons, &c." Lastly, we cannot omit observing, that so great was the _Reputation_ and _Authority_ of this _General Council_, even among _Strangers_, that _foreign Princes_ submitted to have their Controversies and Differences decided by it. The _Appendix_ to _Greg. Turon._ lib. 11. cap. 37. _Anno_ 12. of _Theodorick_'s Reign, has this Passage in it.--"When _Alsaciones_, [perhaps _Alsatia_] in which Country he had been brought up, and which was left him by his Father _Childebert_, fell nevertheless to _Theodebert_, according to the Custom in Use among the _Barbarians_; the two Kings agreed that their Difference should be decided by the judgment of the _Franks_, (in _Salocissa castro_) in their Camp near the River _Sala_." * * * * * CHAP. XII. _Of the Kingly Officers, commonly call'd_ Mayors of the Palace. Before we treat farther of the _uninterrupted Authority_ of the _Publick Council_, we think it not improper to say somewhat of those Regal great Officers, which, during the _Merovingian_ Race were called (_Majores domus_) Masters, or _Mayors of the Palace_. These having for some Time encroach'd upon the Kingly Power, finding at last a fit Opportunity, seiz'd upon it entirely as their own. Their Dignity near the Persons of our Kings seems to have been much the same with that of _Præfecti Pretorio_, or Generals of the Guards in the Time of the _Roman_ Emperors, who were sometimes also titled _Aulæ Præfecti_. They were usually appointed in and by the same _Convention_ which chose the _Kings_, and were wont to be Chiefs or Heads of the _Publick Council_. And upon this Account we frequently meet with such-like Expressions as these among our Historians.--"They elected such and such a Man to the Dignity of _Mayor of the Palace_. _Herchinold, Mayor of the Palace_, being dead, the _Franks_ conferr'd that Dignity upon _Ebroinus_, and appointed him to be _Mayor_ in the King's Court." Also--"They chose _Hilderick_ for their _King_, and _Wolfold_ for _Mayor of the Palace_." Which Quotations of ours might indeed have been made as properly in out foregoing Chapter, where we proved that the greater Employments were not usually given by the _Kings_, but appointed by the Yearly _General_ Council, and conferred upon Men of the greatest Fidelity and Probity. But in this Magistracy, the same Thing hapned, which _Plutarch_ tells us (in his Life of _Lysander_) came to pass when _Agesilaus_ was appointed by the _Lacedemonians_ to be _General_ of their Army, and _Lysander_ to be Legate or Lieutenant-General: "Even as in Stage-Plays, (says he) the Actors who represent a Servant or Messenger, have better Parts, and are more regarded than him that wears the Crown and Scepter, who scarce speaks a Word in the whole Play: So the chief Authority and Command was lodg'd in _Lysander_, whilst with the _King_ remained only a naked and empty Title."--Just so it fell out in our _Francogallia_; Fair Opportunities of increasing the Power of these _Mayors_ of the Palace, being offer'd by the Sloth and Negligence of our _Kings_; among whom we may reckon _Dagobert, Clodoveus, Clotharius, Childericus, Theodoricus_, &c. For the Author of the History of the _Franks_, often cited by _Venericus Vercellensis_, tho' without naming him, writes, That during the Reign of _Clotharius_, Father of _Dagobert_, the Kingdom of the _Franks_ began to be administred and govern'd by some which were called _Provisores Regiæ_, or _Majores Domus_. The same says _Godf. Viterb. parte Chron._ 16. Whereupon, whilst those _Mayors_ of the _Palace_ executed all the important Affairs of the Commonwealth, and commanded all the Armies in Time of War; and the Kings (spending their Days in Sloth and Idleness) tarried at Home, content with the bare Title of a King; Matters at last were brought to such a Pass, that during the Reign of _Childerick_ the 18th _King_, Pipin, _Mayor of the Palace_, (who in the King's Name had waged great and long Wars, and had overcome and reduced the _Saxons_ to Terms of Submission) finding a fit Occasion to assume the Regal Title which was offer'd him, did not let it slip: Especially seeing himself at the Head of a great and victorious Army, that espoused his Interests. Of which we have the Testimony of many Authors. First, _Otto Frisingius_, Chron. 5. cap. 12. and his Transcriber _Godf. Viterb._ Part. 16. who write thus.--"The Kings of _France_, before the Time of _Pipin the Great_, (formerly _Mayor of the Palace_) were in a Manner but titular Princes, having very little to do with the Government of the Realm." _Sigebertus_ says almost the same Thing _sub Anno_ 662.--"From this Time, (says he) the Kings of the _Franks_ degenerating from their ancient Wisdom and Fortitude, enjoy'd little more than the bare Name of King. They did indeed bear the Title according to Custom, _as being of the ancient Regal Race_; but neither acted nor disposed of any Thing: The whole Administration and Power of the Kingdom, was lodg'd in the Hands of the _Mayor of the Palace_." Yet in Reading such-like Authorities, we ought to take this Observation along with us. That since _Pipin_ and his Sons laboured (as 'tis probable they did) under a great Load of Envy, for having violently wrested the Royal Dignity from King _Childerick_, they made it their Business to find out and employ _plausible ingenious Historians_, who magnified the Cowardliness of _Childerick_ and his Predecessors, upbraiding them with Sloth and Idleness, beyond what they deserv'd. And among such as these, we may reckon _Eguinarthus_, Chancellor to _Charles_ the _Great_, and one that did him special Service of this Nature; who in the Beginning of his Book writes thus.--"The Family of the _Merovingians_, out of which the _Franks_ used to _Elect_ their Kings, is supposed to have lasted as long as to _Hilderic_; who by the Appointment of Pope _Stephen_, was deposed, shaven, and thrust into a Monastery. Now tho' it may be said to have ended in him, yet in Truth, for a long Time before, it ceased to have any Value or Excellency, bearing the bare empty Title of King. For both the Riches and Power of the Kingdom, were at the Disposition of the _Prefects of the Palace_, commonly called _Majores Domus_; with whom was also lodg'd the Authority of the Empire: Neither was there any Thing left remaining to the King, but only that contenting himself with the Title, he should sit on a Throne, wearing his Hair and Beard very long, and representing the Person of a Ruler; sometimes giving the first and last Audience to Ambassadors from Foreign Parts, and returning such Answers as were made for him, as if they proceeded immediately from himself. But besides the unprofitable Name of a King, and a precarious Allowance for his private Expences, (which the Mayor of the Palace was pleased out of Bounty to give him) he had nothing that he could call his own, except one Village of very small Revenue, where he had a little House, and a few Servants, barely sufficient for his necessary Occasions, &c." _Sigebertus, sub Anno 662._ taking _Eguinarthus_ for his Pattern, inveighs against the former Kings in almost the same contumelious Terms. "Whose Custom (says he) it was, indeed, to make an Appearance like a Prince, according to what had been usual to their Family; but neither to act, nor dispose of any thing, only to tarry at Home, and to Eat and Drink like Irrational Creatures."--As if the like Sloth and Cowardise ought to be imputed to all the former Kings, among whom we nevertheless find many brave Men, such as _Clodoveus_, who not only defeated a great Army of _Germans_, which had made an Irruption into _France_, in a great Battel near _Tolbiacum_; but also drove the Remainder of the _Romans_ out of the Confines of _Gallia_. What shall we say of _Childebert_ and _Clotharius_, who rooted the _Visigoths_ and _Ostrogoths_ out of _Provence_ and _Aquitain_, where they had seated themselves? In the Histories of all which Princes, there is no Mention made of any _Mayor of the Palace_, but cursorily, and by the By, as one of the _King's Servants_. This we may see in _Gregorius_, lib 5. cap. 18, where he speaks of _Gucilius_, _Lib. 6. cap. 9._ and _cap. 45. Lib. 7. cap. 49._ And we find this Employment to have been not only in the _King's_ Palace, but also in the _Queen's_: For the same _Gregorius_, lib. 7. cap. 27. mentions one _Waddo_ as _Mayor_ of the _Palace_, in the Court of _Queen Riguntha_: And in very many other Places of their Histories, we find both _Gregorius_ and _Aimoinus_ making Mention of these _Masters of the Court_ and _the King's House_. Now the first Beginning of the great Authority of these _Præfecti Regii_, was (as we told you before) during the Reign of King _Clotharius_ the Second, about the Year of our Lord 588. that is, about 130 Years after the constituting the _Francogallican Kingdom_; which we may also learn from the before-mention'd Historian, so often quoted by _Venericus_. Yet there are two other Historians, (tho' not of equal Credit) _Sigibertus_ and _Trithemius_, who refer the Beginning of so great a Power in the _Mayor of the Palace_, to the Reign of _Clotair_ the Third; whose _Magister Palatii_ was one _Ebroinus_, a Man of extraordinary Wickedness and Cruelty: But however this may be, we find Historians calling them by several other Appellations; such as _Comites Domus Regie, Præfecti Aulæ, Comites Palatii, &c._ * * * * * CHAP. XIII. _Whether_ Pipin _was created King by the_ Pope, _or by the Authority of the_ Francogallican Council. Having in the former Chapter given an Account, that after the Expulsion of _Childerick_, (a stupid Prince, in whom the Line of the Merovingians ended) _Pipin_, from being _Mayor of the Palace_, was created _King_; It will be worth our Enquiry, to know by whose Authority the Kingdom was conferr'd upon him. For _Pope Gelasius_ says thus, _Cap. 75. Quest. 6._ --"_A Roman Pope_, viz. _Zacharias_, deposed the King of the _Franks_, not so much because of his evil Actions, as because he was stupid, and unfit for the Exercise of so great a Trust; and in his Stead, substituted _Pipin_, Father of _Charles_ the Emperor: Absolving all the _Franks_ from the Oath of Allegiance to _Childeric_." And there is scarce an Author who does not acquiesce in this Testimony of one _Pope_, concerning the Power of another: Thus _Ado, Lambertus, Rhegino, Sigibertus, Aimoinus, Landulphus_, nay, even _Venericus Vercellensis_, (in the Book which we formerly quoted) cites these Words out of the Epistle of _Pope Gregory_ the VIIth. to _Herman_ Bishop or _Metz_; viz. "A certain _Pope of Rome deposed_ the _King_ of the _Franks_ from his Kingdom, nor so much for his Wickedness, as his being unfit for so great a Power; and after having absolved all the _Franks_ from the Oath of Fidelity they had sworn to him, placed _Pipin_ in his Room.--Which _Otto Frisingius_, lib. Chron. 5. cap. 23. and _Godfrey_, Chron. Part. 17. laying presently hold of, break out into this Exclamation--From this Action, the Popes of _Rome_ derive an Authority of changing and deposing Princes, &c." But pray let us enquire whether the Truth of this Story, as to the Matter of Fact, be sufficiently proved and attested. For in the first Place, 'tis manifest, That _not one_ of all that _great Number of Kings_ of the _Franks_, which we have instanced to have been Elected or Abdicated, was either created or abdicated by the Pope's Authority. On the contrary we have irrefragably prov'd, that the whole Right, both of _making_ and _deposing_ their Kings, was lodg'd in the yearly _great Council_ of the Nation; so that it seems incredible the _Franks_ shou'd neglect or forgo their Right, in this single Instance of _Pipin_. But to make few Words of this Matter, _Venericus Vercellensis_ gives us the Testimony of an ancient Historian, who has written of all the _Francogallican_ Affairs; whereby that whole Story of the _Pope_, is prov'd to be a Lye: And 'tis clearly demonstrated, that both _Childerick_ was deposed, and _Pipin_ chosen in his room, according to the _usual_ Custom of the _Franks_, and the _Institutions_ of our Ancestors: That is to say, by a _solemn General Council of the Nation_; in whose Power _only_ it was, to transact a Matter of so great Weight and Moment; as we have before made it appear. The Words of that Historian are these:--"That by the _Counsel_, and with the _Consent_ of all the _Franks_, (a Relation of this Affair being sent to the Apostolick See, and its Advice had) the most noble _Pipin_ was advanced to the Throne of the Kingdom, _By the Election of the whole Nation_, the Homage of the Nobility, with the Consecration of the Bishops, &c." From which Words, 'tis most apparent that _Pipin_ was not appointed King by the _Pope_, but by the _People themselves_, and the _States of the Realm_. And _Venericus_ explains this Matter out of the same Historian. "_Pipin, Mayor_ of the Palace (says he) having all along had the Administration of the Regal Power in his Hands, was the first that was appointed and elected to be King, from being _Mayor of the Palace_; the _Opinion_ of _Pope Zachary_ being first known, because the Consent and _Countenance_ of a Pope of _Rome_, was thought necessary in an Affair of this Nature."--And presently after he tells us; "The Pope finding that what the Ambassadors had deposed was just and profitable, agreed to it; and _Pipin_ was made King by the unanimous Suffrages and Votes of the Nobility, &c."--To the very same Purpose writes _Ado of Vienna_, �tat. 6. _sub Anno 727._--"Ambassadors (says he) were sent to Pope _Zacharias_, to propose this Question to him; Whether or no the Kings of the _Franks_, who had scarce any _Power_ in their Hands, but contented themselves with the bare _Title_, were fit to continue to be _Kings_?" To which _Zacharias_ return'd this Answer,--"That he thought the _Person who governed_ the Commonwealth, ought rather to have also the _Title_ of King: Whereupon the _Franks_, after the Return of the Ambassadors, cast out _Childeric_, who then had the Title of King; and by the _Advice_ of the _Ambassadors_, and of Pope _Zacharias, Elected Pipin_, and made him King." Besides the above Proofs, we have _Aimoinus's_ Testimony to the same Purpose, _lib. 4. cap. 61._ where he concludes thus.--"This Year _Pipin_ got the Appellation of King of the _Franks_, and according to their ancient Customs was elevated to the Royal Throne in the City of _Soissons_, &c." Nay, even _Godfrey of Viterbo_ himself; _Chron. part. 17. cap. 4._ "_Pipin_ (says he) was made King by Pope _Zacharias_, (_ex electione Francorum_) through the _Election_ of the _Franks_, _Hilderic_ their slothful King being, by the _Franks_, thrust into a Monastery." In like Manner _Sigebertus_, sub Anno 752.--The Authors of the _Miscellany History_, lib. 22.--_Otto Frising._ lib. 5. Cap. 21, 22, 23. And the Author of the Book intituled _Fasciculus temporum_, do all clearly agree in the Account given of this Transaction. From which we may easily gather, that altho' the _Franks_ did _consult_ the _Pope_ before they created _Pipin_ King, yet it cannot therefore be any Ways inferr'd from thence, that he was made King by the _Pope's Authority_; for 'tis one Thing to make a King, and another to give Advice touching the making him: 'Tis one Thing to have a Right of Creation, and another that of only giving Advice; nay; no Man has a Right of so much as giving Advice in Matters of this Nature, but he whose Advice is first ask'd. Lastly, no Man has more clearly explain'd this whole Matter than _Marsilius Patavinus_; who during the Reign of _Lewis_ of _Bavaria_, writ a Book--_de translatione imperii_, in which, _Cap. 6._ he has these Words.--"_Pipin_, a very valiant Man, and Son of _Charles Martel_, was (as we read) raised to the Dignity of being King of the _Franks_, by _pope Zacharias_. But _Aimoinus_ more truly informs us, in his History of the _franks_, that _Pipin_ was _legally elected_ King by the _Franks_ themselves, and by the Nobility of the Kingdom was placed in the Throne. At the same Time _Childeric_, a dissolute Prince, who contenting himself with the bare Title of a King, wasted both his Time and Body in Wantonness, was by them shaven for a Monk: So that _Zacharias_ had no Hand in the deposing him, but consented (as some say) to those that did. For such deposing of a King for just Causes, and electing of another, does not belong to any Bishop or Ecclesiastick, nor to any College of Clergymen; but to the _whole Body of citizens_ [ad universitatem civium] inhabiting that Region, and to the Nobles of it, or to the Majority of them both." Therefore those Pretences of the _Popes_, to a Power of _creating_ or _abdicating_ Kings, are apparently false to every Body. But besides this fabulous Device, which is a sufficient Instance of their Wickedness and Malice, I think it worth my while to add a remarkable Letter of Pope _Stephen_, adapted to the foregoing Fable; by which we may make a judgment of the Madness and folly of that old crafty Knave. This Letter is extant in _Rhegino_, a Benedictine Monk, and Abbot of _Prunay_, [Footnote: _Abbot Pruniacensis_] an irrefragable Testimony in an Affair of this Nature; 'tis in _Chron. anni_ 753.--"_Stephen_ the Bishop, Servant of the Servants of God, &c. As no Man ought to boast of his Merits, so neither ought the wonderful Works of God which are wrought upon his Saints without their Desert, to be buried in Silence, but published abroad as the Angel admonished _Tobias_. I being constrained thro' the Oppression of the holy Church, by that most wicked, blasphemous, and not worthy to be named Wretch, _Aistolphus_, to fly for Refuge to that _excellent and faithful Votary of St._ Peter, _Lord_ Pipin, the most _Christian_ King, took my Journey into _France_; where I fell into a mortal Distemper and remained some Time in the District of _Paris_, in the venerable Monastery of St. _Denis_ the Martyr. And being now past Hopes of Recovery, methought I was one Day at Prayers in the Church of the same blessed Martyr, in a Place under the Bells: And that I saw standing before the great Altar our Master _Peter_; and that great Master of the _Gentiles_, our Master _Paul_; whom I knew very well by their Vestments. And a little after, I saw the blessed _Lord Denis_, a tall and slender Man, standing at the Right Hand of our Lord _Peter_. And then that good Pastor the Lord _Peter_ said--This good Brother of ours asks for Health. Then reply'd the blessed _Paul_--He shall be healed presently. And thereupon approaching to our Lord _Denis_, he amicably put his Hand upon his Breast, and look'd back upon our Lord _Peter_, and Lord _Peter_ with a chearful Countenance said to our Lord _Denis_, His Health shall be your particular Act of Favour. Then presently Lord _Denis_ taking a Censer full of Incense, and holding a Branch of Palm-tree in his Hand, accompanied with a Presbyter and Deacon, who assisted him, came near to me, and said, Peace be with thee, Brother, be not afraid, thou shalt not die until thou return in Prosperity to thy own See. Rise and be healed, and dedicate this Altar to the Honour of God, and the Apostles St. _Peter_ and St. _Paul_, whom thou seest standing before thee, with Masses of Thanksgiving. Whereupon I was presently made whole. And being about to accomplish that which I was commanded to do, they that were present said I was mad. So I related all that I had seen, to them, to the King, and all his People, and how I had been cured; and I fulfilled all that I was bid to do. These Things happen'd in the 753d Year, from the Incarnation of our Lord on the Ides of _August_; at which Time being strengthned by the Power of _Christ_, between the Celebration of the Consecration of the above-mention'd Altar, and the Oblation of the Sacrifice, I anointed King _Pipin_ and his two Sons, _Charles_ and _Carloman_, Kings of the _Franks_. Moreover, I laid Hands upon, and blessed _Bertranda_ the King's Wife, cloathed with her Royal Mantle, and the Grace of the Sevenfold Holy Spirit: And the Nobles of the _Franks_ being sanctified by the Apostolical Benediction, and the Authority delivered by _Christ_ to St. _Peter_, obliged themselves solemnly, and protested, That neither they, nor any of their Posterity, wou'd at any Time hereafter, presume to constitute any Person, as King over them, but only such as were of the Race of King _Pipin_." * * * * * CHAP. XIV. _Of the_ Constable, _and_ Peers _of_ France. Besides the great Office of _Mayor_ of the _Palace_ before spoken of, there was another which we must take Notice of; because it seems, in the Memory of our Forefathers, to have succeeded in Place of the former: And that was the Office of _Count_ of the _King's Stable_; called at first, _Comes stabuli_; and by Corruption at last, _Connestabuli_. Now all those who enjoy'd any extraordinary Honours or Employments in the King's Court, and assisted in the Administration of the Commonwealth, were commonly called _Comites, Counts_; which was likewise the Custom of the Ancients, as I have in some other of my Works demonstrated. So _Cicero_, in many Places, calls _Callisthenes, Comitem Alexandri magni_. This _Comes stabuli_ was in a Manner the same with the _Magister Equitum_ among the _Romans_, that is, _General_ of the _Horse_; to whom were subject those Keepers of the Horses commonly called _Querries_. _Greg. Turen_ lib. 5. cap. 39. says,--"The Treasurer of _Clodoveus_ being taken out of the City of _Bourges_, by _Cuppan_, _Count_ of the _Stable_, was sent in Bonds to the Queen, &c." And again, _cap._ 48. where he speaks of _Leudastes_,--"She took him (says he) into Favour, rais'd him, and made him Keeper of the best Horses; which so filled him with Pride and Vanity, that he put in for the _Constableship_; [_Comitatum Stabuloram_] and having got it, began to despise and undervalue every Body." From these Quotations it appears, that tho' the Custody of the Horses was a very honourable Employment, yet 'twas much inferior to that of _Constable_. _Aimoinus_, lib. 3. cap. 43. gives the same Account of this _Leudastes_.--"Being grown very intimate with the Queen, he was first made Keeper of the Horse; and afterwards obtaining the Constableship above the rest of the Keepers, he was (after the Queen's Death) made by King _Charibert_, _Count_ of _Tours_." And _cap._ 70. "_Leudegesilus_, Præfect of the King's Horses, whom they commonly call _Constable_, being made General of that Expedition by the King, order'd the Engines to be drawn down &c." Also _lib._ 4. _cap_, 95. where he speaks of _Charles_ the Great,--"The same Year (says he) he sent _Burchard, Comitem Stabuli sui_, which we corruptly call _Constabulum_, with a Fleet against _Corsica_"--. The Appendix to _Gregory_ calls him, _Comestabulum, lib._ II. _Brunechildis_ (says he) was brought out of the Village, _ab exporre Comestabulo_. This being so, _Albertus Krantzius_, lib. Suet. 5. cap. 41. ventures to affirm, that this _Constable_ was the same with what the _Germans_ call _Mareschal_. "They named (says he) a _Governor_, one of the best Soldiers, who might have the Power of Convocating the _Assembly_ of the Kingdom, and of acting in all Matters like the _Prince_. Our _Countrymen_ call him a _Mareschal_, the French call him _Constable_, &c." This seems the more probable, because I do not remember any Mention to have been made in ancient Times, of a _Mareschal_ in our _Francogallia_; so that 'tis very likely to have been an Institution of our latter Kings, accommodated to the Custom of the _Germans_. That this _Comitatus Stabulorum_, a _Constableship_, had its Rise from the Institution of the _Roman Emperors_, I do not at all question; altho' it grew by Degrees among us from slender Beginnings, to the Heighth of chief _Governor_ of the _Palace_. In former Times that Dignity was a Sort of _Tribunatus Militaris. Ammianus_, lib. 26. has this Expression where he speaks of _Valentinian_ the Emperor,--"Having fixed his Stages, or Days Journeys, he at last entred into _Nicomedia_; and about the Kalends of _March_, appointed his Brother _Valens_ to be Governor of his Stables, _cum tribunatus dignitate_, with _tribunitial Dignity_." What Kind of Dignity that was, we may find in the Code of _Justinian_, lib. 1. Cod. _de comitibus & tribunis Schol._ Where 'tis reckoned as a great Honour for them to preside over the Emperor's Banquets, when they might adore his Purple. Also in _lib. 3. Cod. Theodos. de annon. & tribut, perpensa, 29. Cod. Theod. de equorum Collatione & lib. 1. Cod. Theod._ wherein we may find a Power allowed them, of exacting Contribution to a certain Value from the Provincials who were to furnish War-Horses for the Emperor's Service. It now remains that we discourse a little of those Magistrates, which were commonly called _Peers_ of _France_; whereof we can find no Records or Monuments, tho' our Endeavours have not been wanting. For among so great a Number of Books, as are called Chronicles and Annals of _Francogallia_, not one affords us any probable Account of this Institution. For what _Gaguinus_, and _Paulus �milius_ (who was not so much an Historian of _French_ Affairs, as of the _Pope's_) and other common Writers do affirm, to wit, That those Magistrates were instituted by _Pipin_ or _Charlemagn_, appears plainly to be absurd; because not one of all the _German_ Historians, who wrote during the Reigns of those Kings, or for some Time after, makes the least Mention of those Magistrates. _Aimoinus_ himself who wrote a History of the Military Atchievements and Institutions of the _Franks_, down to the Reign of _Lewis the Pious_, and the _Appendix_, which reaches as far as the Time of _Lewis the Younger_, being the 37th King, speak not one Word of these _Peers_ in any Place of their Histories; so that till I am better inform'd, I must concur in Opinion with _Gervase_ of _Tilbury_, who (as _Gaguinus_ says in the Book which he wrote to the Emperor _Otho_ the IVth, _de otiis imperialibus_) affirms. That this Institution is first owing to King _Arthur_ of _Britain_, who ruled some time in Part of _France_. For I suppose the Original of that Institution to be this; that as in the _Feudal_ Law such are called, _Pares curie beneficiari_, i. e. _equal Tenants by Homage of the Court_, or _Clientes [Greek: omotimoi], Clients of like holding_, or _Convassilli, Fellow Vassals_, who hold their _Fiefs_ and _Benefices_ from one and the same _Lord_ and _Patron_; and upon that Account are bound to him in _Fealty_ and Obedience: just so King _Arthur_ having acquired a new Principality, selected _twelve great Men_, to whom he distributed the several Parts and _Satrapies_ of his Kingdom, whole Assistance and Advice he made use of in the Administration of the Government. For I cannot approve of their Judgment, who write, that they were called _Peers_, because they were _Pares Regi_, the _King's Equals_; since their Parity his no Relation to the _Regal Dignity_, but only to that Authority and Dignity they had agreed should be common among them. Their Names were these, the _Dukes of Burgundy, Normandy_, and _Aquitain_; the _Counts_ of _Flanders, Tholouse_, and _Champagne_; the _Archbishops_ of _Rheims, Laon_, and _Langres_; the _Bishops_ of _Beauvais, Noyon_, and _Chalons_. And as the _Pares Curtis_, or _Curie_, in the _Feudal_ Law, can neither be created, but by the Consent of the Fraternity; nor _abdicated_, but by Tryal before their Colleagues; nor _impeach'd_ before any other Court of Judicature; so these _Peers_ were not bound by any judgment or Sentence, but that of the _Parliament_, that is, of this imaginary Council; nor could be _elected_ into the _Society_, or _ejected_ out of it, but by their _Fellows in Collegio_. Now altho' this Magistracy might owe its Original to a foreign Prince; yet when he was driven out, the succeeding Kings finding it accommodated to their own Ends and Conveniences, ('tis most probable) continued and made use of it. The first mention I find made of these _Peers_, was at the Inauguration of _Philip the Fair_, by whom also (as many affirm) the Six _Ecclestastical Peers_ were first created. But _Budæus_, an extraordinary Learned Man, calls these _Peers_ by the Name of _Patritians_; and is of Opinion that they were instituted by one of our Kings, who was at the same Time _Emperor_ of _Germany_; because, _Justinian_ says, those _Patres_ were chosen by the _Emperor_, _quasi Reipub. patronos tutoresque_, as it were _Patrons_ and _Tutors_ of the Commonwealth. I do not reject this Opinion of that Learned Person; such a Thing being very agreeable to the Dignity of these _Peers_. For in the Times of the later _Roman Emperors_, we find the _Patritian_ Dignity not to have been very unlike that of the _Peers_; because (as _Suidas_ assures us,) they were (partly) the _Fathers of the_ Republick, and were of _Council_ with the Emperor in all weighty Concerns, and made use of the same Ensigns of Authority with the _Consuls_; and had greater Honour and Power than the _Præfectus Prætorio_, tho' less than the _Consul_; as we may learn _ex Justiniani Novellis_; from _Sidon. Apollin. Claudian_; and _Cassiadorus_ especially. But when the _Empire_ was transferr'd to the _Germans_, we do not believe this Honour was in use among them. Neither is it likely, that none of the _German_ Historians should have made the least Mention of it, if any _Patritians_ of that Kind had been instituted by a _German_ Emperor, who at the same Time was King of _Francogallia_. Lastly, The same _Budæus_ tells us in that Place, tho' a little doubtingly, that the like Dignity of _Peers_ had been made use of in other neighbouring Nations; and that in the _Royal Commentaries, Anno_ 1224, 'tis found written, that a certain Gentleman of _Flanders_, called _Joannes Nigellanus_, having, a Controversy there, appeal'd from the _Countess_ of _Flanders_ to the _Peers_ of _France_; having first taken his Oath that he could not expect a fair and equal Tryal before the _Peers_ of _Flanders_. And when afterwards the Cause was by the _Countess_ revok'd to the judgment of the _Peers_ of _Flanders_, it was at Length for certain Reasons decreed, that the _Peers_ of _France_ should take Cognisance of it. What the Reasons were of transferring, that Tryal, _Budæus_ does not tell us; which one versed in the _Feudal_ Laws should never have omitted. But 'tis Time to return to our principal Business. * * * * * CHAP. XV. _Of the_ continued _Authority and Power of the_ Sacred Council, _during the Reign of the_ Carlovingian _Family_. We have, as we suppose, sufficiently explain'd what was the Form and Constitution of our Commonwealth, and how great the Authority of the _Publick Council_ was during the Reigns of the Kings of the _Merovingian_ Family. We must now proceed to give an Account of it under the _Carlovingian_ Race. And as well all our _own_ as the _German_ Historians, give us Reason to believe that the very same _Power_ and _Authority_ of the _Orders_ or _States_ of the Kingdom, was kept entire. So that the last Resort and Disposal of all Things, was not lodged in _Pipin_, _Charles_, or _Lewis_, but in the _Regal Majesty_. The true and proper Seat of which was (as is above demonstrated) in the _Annual General Council_. Of this _Eguinarthus_ gives us an Account, in that little Book we have already so much commended. Where, speaking of what happen'd after the Death of _Pipin_, he tells us, "that the _Franks_ having solemnly assembled their general Convention, did therein constitute both _Pipin_'s Sons their Kings, upon this Condition, That they should equally divide the whole Body of the Kingdom between them; and that _Charles_ should govern that Part of it which their Father _Pipin_ had possess'd, and _Carlomannus_ the other Part which their Uncle _Carlomannus_ had enjoy'd, &c." From whence 'tis easily inferr'd, that the _States_ of the Kingdom still retain'd in themselves the same Power, which they had always hitherto been in Possession of (during near 300 Years) in the Reigns of the _Merovingian_ Kings. So that altho' the deceased King left Sons behind him, yet there _came not_ to the Crown so much thro' any _Right of Succession_, as thro' the _Appointment_ and _Election_ of the _States_ of the _Realm_. Now that all the other weighty Affairs of the Nation used to be determined by the same _General Council_, _Aimoinus_ is our Witness, _lib._ 4. _cap._ 71. where he speaks of the War with the _Saxons_. "The King (says he) in the Beginning of the Spring went to _Nimeguen_; and because he was to hold a General Convention of his People at a Place called _Paderburn_, he marched from thence with a great Army into _Saxony_." And again, _cap._ 77.--"Winter being over, he held a Publick Convention of his People in a Town called _Paderburn_, according to the _yearly Custom_." Also _cap._ 79.--"And meeting with his Wife in the City of _Wormes_, he resolved to hold there the _General Council_ of his People." In all which Places he speaks of that _Charles_, who thro' his warlike Atchievements had acquired the Dominion of almost all _Europe_, and by the universal Consent of Nations had obtained the Sirname of the _Great_: Yet for all that it was not in his Power to deprive the _Franks_ of their _ancient Right and Liberty_. Nay, he never so much as endeavour'd to undertake the least Matter of Moment without the _Advice_ and _Authority_ of his _People_ and _Nobles_. And there is no doubt of it, after _Charles_'s Death, _Lewis_ his Son administred the Kingdom upon the same Terms and Conditions. For the _Appendix_ to _Aimoinus_, lib. 5. cap. 10. tells us, that when _Charles_ was dead, _Lewis_ the Emperor, thro' a certain Kind of Foreknowledge, summon'd the general Council of his People to meet at _Doue_, near the _Loire_. And again, _cap._ 38. where he makes Mention of the Articles of Peace, concluded between King _Lewis_ and his Cousin _Lewis_, "--They summoned, says he, a PLACITUM, and in that PLACITUM, by the Advice and Consent of their faithful Subjects, they agreed to observe and keep the Articles which follow. In which _Placitum_ it was also by common Consent found convenient, that both Kings should return with a Guard [_redirent cum scarâ_] _&c._" Also _cap._ 41. where he speaks of _Carloman_ the Son of _Lewis the Stammerer_,--"And so (says he) he departed from the _Normans_, and returned to _Wormes_, where he was on the Kalends of _November_ to _hold his Placitum_." Also in the following Chapter, where he speaks of _Charles_ the Simple,--"Whose Youth (says he) the great Men of _France_ thinking unfit for the Administration of the Government, they held a _Council_ concerning the State of the Nation." But it would be an infinite Labour, and indeed a superfluous one, to quote all the Instances which might be given of this Matter: From what we have already produced, I think 'tis apparent to every man, that till _Charles_ the _Simple_'s Reign, that is, for more than 550 Years, the Judgment and Determination of all the weighty Affairs of the Commonwealth, belonged to the _great Assembly_ of the _People_, or (as we now call it) to the _Convention of the Estates_: And that this Institution of our Ancestors was esteemed _sacred_ and _inviolable_ during so many Ages. So that I cannot forbear admiring the Confidence of some Modern Authors, who have had the Face to publish in their Writings, That King _Pipin_ was the first to whom the Institution of the _Publick Council_ is owing. Since _Eguinarthus_, _Charles_ the _Great_'s own _Chancellor_, has most clearly proved, that it was the constant Practice of the whole _Merovingian Line_, to hold every Year the _Publick Convention_ of the People on the _Kalends_ of _May_; and that the _Kings_ were carried to that Assembly in a Chariot or Waggon drawn by Oxen. But to come to a Matter of greater Consequence, wherein the Prudence and Wisdom of our Ancestors does most clearly shew it self. Is it not apparent how great and manifest a Distinction they made between the King and the Kingdom? For thus the Case stands. The _King_ is one principal Single _Person_; but the _Kingdom_ is the whole Body of the _Citizens_ and _Subjects_. "And _Ulpian_ defines him to be a Traytor, who is stirred up with a Hostile Mind against the Commonwealth, or against the Prince." And in the _Saxon_ Laws, _Tit._ 3. 'tis Written, "Whosoever shall contrive any Thing against the Kingdom, or the King of the _Franks_, shall lose his Head."--And again, "The King has the same Relation to the Kingdom that a Father has to his Family; a Tutor to his Pupil; a Guardian to his Ward; a Pilot to his Ship, or a General to his Army."--As therefore a Pupil is not appointed for the Sake of his Tutor, nor a Ship for the Sake of the Pilot, nor an Army for the Sake of a General, but on the contrary, all these are made such for the Sake of those they have in Charge: Even so the _People_ is not designed for the Sake of the _King_; but the King is sought out and instituted for the Peoples Sake. For a _People_ can subsist without a King, and be governed by its Nobility, or by it Self: But 'tis even impossible to conceive a Thought of a _King_ without a _People_. Let us consider more Differences between them. A _King_ as well as any private Person is a Mortal Man. A _Kingdom_ is perpetual, and consider'd as immortal; as Civilians use to say, when they speak of Corporations, and aggregate Bodies. A _King_ may be a Fool or Madman, like our _Charles_ VI who gave away his Kingdom to the _English_: Neither is there any Sort of Men more easily cast down from a Sound State of Mind, through the Blandishments of unlawful Pleasures and Luxury. But a _Kingdom_ has within it self a perpetual and sure Principle of Safety in the Wisdom of its Senators, and of Persons well skill'd in Affairs. A _King_ in one Battel, in one Day may be overcome, or taken Prisoner and carried away Captive by the Enemy; as it happen'd to St. _Lewis_, to King _John_, and to _Francis_ the First. But a _Kingdom_ though it has lost its _King_, remains entire; and immediately upon such a Misfortune a Convention is call'd, and proper Remedies are sought by the chief Men of the Nation against the present Mischiefs; Which we know has been done upon like Accidents. A _King_, either through Infirmities of Age, of Levity of Mind, may not only be missed by some covetous, rapacious or lustful Counsellor; may not only be seduced and depraved by debauch'd Youths of Quality, or of equal Age with himself; may be infatuated by a silly Wench, so far as to deliver and fling up the Reins of Government wholly into her Power. Few Persons, I suppose, are ignorant how many sad Examples we have of these Mischiefs: But a _Kingdom_ is continually supplied with the Wisdom and Advice of the grave Persons that are in it. _Solomon_, the wisest of Mankind, was in his old Age seduced by Harlots; _Rehoboam_, by young Men; _Ninus_, by his own Mother _Semiramis_; _Ptolomæus_ sirnamed _Auletes_, by _Harpers_ and _Pipers_. Our Ancestors left to their Kings the Choice of their own Privy-Counsellors, who might advice them in the Management of their private Affairs; but such Senators as were to consult in common, and take care of the publick Administration, and instruct the King in the Government of his Kingdom, they reserved to the Designation of the _Publick Convention_. In the Year 1356: after King _John_ had been taken Prisoner by the _English_, and carried into _England_, a Publick Council of the Kingdom was held at _Paris_. And when some of the King's Privy-Counsellors appeared at that Convention, they were commanded to leave the Assembly; and it was openly declared, that the Deputies of the Publick Council wou'd meet no more, if those Privy-Counsellors shou'd hereafter presume to approach that Sanctuary of the Kingdom. Which Instance is recorded in the Great Chronicle writ in _French_, Vol. 2. _sub Rege Johanne_, fol. 169. Neither has there ever yet been any Age wherein this plain Distinction between a _King_ and a _Kingdom_, has not been observed. The _King_ of the _Lacedemonians_ (as _Xenophon_ assures us) and the _Ephori_, renewed _every Month_ a mutual _Oath_ between each other; the _King_ swore that he wou'd govern according to the written Laws; and the _Ephori_ swore that they wou'd preserve the Royal Dignity, provided he kept his Oath. _Cicero_, in one of his Epistles to _Brutus_, writes: "Thou knowest that I was always of Opinion, that our Commonwealth ought not only to be deliver'd from a _King_, but even from _Kingship_, Scis mihi semper placuisse non _Rege_ folum, sed _Regno_ liberari rempublicam."--Also in his Third Book _de Legibus_--"But because a Regal State in our Commonwealth, once indeed approved of, was abolish'd, not so much upon the Account of the Faults of a _Kingly_ Government, as of the _Kings_ who governed; it may seem that only the Name of a _King_ was then abolish'd, &c." * * * * * CHAP. XVI. _Of the_ Capevingian _Race, and the Manner of its obtaining the Kingdom of_ Francogallia. It has been already shewn, that the Kingdom of _Francogallia_ continued in Three Families only, during One Thousand Two Hundred Years. Whereof the first was called the _Merovingian_ Family. The second, the _Carlovingian_, from the Names of their Founders or Beginners. For altho' (as we have often told you) the Succession to the Kingdom was not conferred as _Hereditary_ Right, but according to the Appointment of the _General Council_; yet the _Franks_ were so far willing to retain the Custom of their Progenitors the _Germans_, (who as _Tacitus_ tells us, chuse their _Kings_ for their _Nobility_, and their _Generals_ for their _Valour_) that for the most Part they elected such Kings as were of the Blood _Royal_, and had been educated in a Regal Manner, whether they were the Children, or some other Degree of Kindred to the Royal Family. But in the Year 987, after the Death of _Lewis_ the Fifth, who was the 31st King of _Francogallia_, and the 12th of the _Carlovingian_ Line, there hapned a Migration or Translation of the Royal Scepter, and a Change of the Kingdom. For when there remained no Person alive of the former Family but _Charles Duke of Lorrain_, Uncle to the deceased King, to whom the Succession to the Kingdom, by ancient Custom seemed to be due; there arose up one _Hugh Capet_, Nephew to _Hauvida_, Sister to the Emperor _Otho_ the First, and Son to _Hugh_ Earl of _Paris_; a Man of great Reputation for Valour, who alledged, that he being present upon the Place, and having deserved extraordinary well of his Country, ought to be preferred to a Stranger, who was absent. For there having hapned some Controversies between the _Empire of Germany_, and the Kingdom of _France_; _Charles_ upon Occasion had shewn himself partial for the _Empire_ against _France_, and upon that Score had lost the Affections of most of the _French_. Whereupon _Charles_ having raised an Army, made an Irruption into _France_, and took several Cities by Composition. _Capet_ relying on the Friendship and Favour of the _Francogallican_ Nobles, got together what Forces he cou'd, and went to meet him at _Laon_, a Town in the Borders of _Champagne_; and not long after a bloody Battel was fought between them, wherein _Capet_ was routed, and forced to fly into the innermost Parts of _France_; where he began again to raise Men in Order to renew the War. In the mean Time _Charles_ having dismiss'd his Army, kept himself quiet in the Town of _Laon_ with his Wife; but in the Year following he was on a sudden surrounded by _Capet_, who besieged the Town with a great Army. There was in the Place one _Anselmus_, Bishop of the City. _Capet_ found Means to corrupt this Man by great Gifts and Promises, and to induce him to betray both the Town and the King into his Hands; which was accordingly done. And thus having obtained both the City and the Victory, he sent _Charles_ and his Wife Prisoners to _Orleans_, where he set strict Guards over them. The King having been two Years in Prison, had two Sons born to him there, _Lewis_ and _Charles_; but not long after they all died. So that _Capet_ being now Master of the whole Kingdom of _France_ without Dispute or Trouble, associated his Son _Robert_ with him in the Throne, and took care to get him declared his Successor. Thus the Dignity and Memory of the _Carlovingian_ Family came to an End, the 237th Year after the first Beginning of their Reign. And this History is recorded by _Sigebert_ in _Chron._ Ann. 987. as well as the _Appendix_, lib. 5. cap. 45. We must not omit making Mention of the _cunning Device_ made use of by _Hugh Capet_, for establishing himself in his new Dominion: For whereas all the Magistracies and Honours of the Kingdom, such as _Dukedoms, Earldoms_, &c. had been hitherto from ancient Times conferr'd upon select and deserving Persons in the General _Conventions_ of the _People_, and were held only during good _behaviour_; whereof (as the Lawyers express it) they were but _Beneficiaries_; _Hugh Capet_, in order to secure to himself the Affections of the Great Men, was the first that made those _Honours perpetual_, which formerly were but _temporary_; and ordained, that such as obtained them shou'd have a hereditary Right in them, and might leave them to their Children and Posterity in like Manner as their other Estates. Of this, see _Franciscus Conanus_ the Civilian, _Comment. 2. Cap. 9._ By which notorious fact, 'tis plain, that a great Branch of the _Publick Council's_ Authority was torn away; which however (to any Man who seriously considers the Circumstances of those Times) seems impossible to have been affected by him alone, without the Consent of that _Great Council_ it self. * * * * * CHAP. XVII. _Of the uninterrupted Authority of the_ Publick Council _during the_ Capevingian _Race_. We may learn, out of _Froissard, Monstrellet, Gaguinus, Commines, Gillius_, and all the other Historians who have written concerning these Times, that the Authority of the Publick Council was little or nothing less in the Time of the _Capevingian_ Family than it had been during the two former Races. But because it would be too troublesome, and almost an infinite Labour to quote every Instance of this Nature, we shall only chose some few of the most remarkable Examples out of a vast Number which we might produce. And the first shall be, what hapned in the Year 1328. When _Charles_ the _Fair_ dying without Issue Male, and leaving a Posthumous Daughter behind him; _Edward_ King of _England_, and Son to _Isabella_, Sister of _Charles_, claimed the Kingdom of _France_ as belonging to him of Right. Now there could be no Trial of greater Importance, nor more illustrious, brought before the _Publick Council_, than a Controversy of this Kind. And because it was decided there, and both Kings did submit themselves to the Judgment and Determination of the Council, 'tis an irrefragable Argument, that the _Authority_ of the _Council_ was greater than that of both Kings. This Fact is recorded not only by all our own Historians, but by _Polydore Virgil_ an _English_ Writer, _Histor. lib_ 19. Moreover, that great Lawyer _Paponius_, _Arrestorum_, lib. 4. cap. I. has left it on Record, (grounded, no doubt, upon sufficient Authorities,) "That both Kings were present at that _Council_, when the Matter was almost brought to an open Rupture; by the Advice of the _Nobles_, a _General Convention_ of the _People_ and _States_ was summon'd: and the _Vote of the Majority_ was, that the Kinsman, by the Father's Side, ought to have the Preference; and that the Custody of the Queen, then great with Child, shou'd be given to _Valois_; to whom also the Kingdom was _adjudged_ and _decreed_ in Case she brought forth a Daughter."--Which History _Froissard_, Vol. I. Cap. 22. _Paponius_ Arrest. lib. 4. cap. I. Art. 2. and _Gaguinus_ in _Philippo Valesio_, have published. The Year 1356, furnishes us with another Example; at which Time King _John_ was defeated by the _English_ at _Poictiers_; taken Prisoner, and carried into _England_.--"After so great a Calamity, the only Hopes left were in the Authority of the _Great Council_; therefore immediately a Parliament was summon'd to meet at _Paris_. And altho' King _John_'s Three Sons, _Charles_, _Lewis_ and _John_, were at Hand, the eldest of which was of competent Age to govern; yet other Men were chosen, to wit, _twelve approved Persons_ out of each _Order_ of the _States_, to whom the Management of the Kingdom's Affairs was intrusted; and there it was decreed, that an Embassy shou'd be sent into _England_ to treat of Peace with the _English_." _Froissard_, Vol. I. cap. 170. _Joannes Buchettus_, lib. 4. fol. 118. _Nich. Gillius_ in Chron. _Regis Joannis_, are our Authors. A third Instance we have _Anno_ 1375, when the last Will and Testament of _Charles_ the Fifth, Surnamed the _Wise_, was produced: By which Will he had appointed his Wife's Brother, _Philip_ Duke of _Bourbon_, to be Guardian to his Sons, and _Lewis_ Duke of _Anjou_ his own Brother, to be Administrator of the Kingdom till such Time as his Son _Charles_ shou'd come of Age. But notwithstanding this, a _Great Council_ was held at _Paris_, wherein (after declaring the Testament to be void and null) it was decreed, that the _Administration_ of the Kingdom shou'd be committed to _Lewis_, the Boy's Uncle: "_But upon this Condition, that he_ should be _ruled and governed_ in that _Administration, by the Advice of certain Persons named and approv'd by the_ Council." The Education and Tutelage of the Child was left to _Bourbon_; and at the same Time a Law was made, that the Heir of the Kingdom shou'd be crown'd as soon as he shou'd be full 14 Years old, and receive the Homage and Oath of Fidelity from his Subjects.--_Froissard_, Vol. 2. cap. 60. _Buchett_, lib. 4. fol. 124. Chro. Brit. Cap. A 4th Example we have in the Year 1392; at which Time the same _Charles_ the Sixth was taken with a sudden Distraction or Madness, and was convey'd first to _Mans_, and afterwards to _Paris_; and there a _General Council_ was held, wherein it was decreed by the _Authority of the States_, that the _Administration_ of the _Kingdom_ shou'd be committed to the Dukes of _Aquitain_ and _Burgundy_.--_Froissard_, Vol. 4. cap. 44. is our Author. 5. Neither must we omit what _Paponius_ (Arrest. lib. 5. tit. 10. Art. 4.) testifies to have been declared by the _Parliament_ at _Paris_, within the Compass of almost our own Memories, when _Francis_ the First had a Mind to alienate Part of his Dominions; _viz._ "That all Alienations of that Kind made by any of his Predecessors, were void and null in themselves; upon this very Account, that they were done _without the Authority of the Great Council_, and of _the Three Estates_," as he calls them. A 6th Example we have in the Year 1426, when _Philip_ Duke of _Burgundy_, and _Hanfred_ [Dux _Glocestriæ_] were at mortal Enmity with each other, to the great Detriment of the Commonwealth and it was at last agreed between them to determine their Quarrel by single Combat: For in that Contention the _Great Council_ interposed its Authority, and decreed that both shou'd lay down their Arms, and submit to have their Controversies _judicially tryed_ before the _Council_, rather than _disputed_ with the _Sword_. Which History is related at large by _Paradinus_, in _Chron. Burgund. lib._ 3. _Anno_ 1426. A 7th Example happned in the Year 1484, when _Lewis the Eleventh_ dying, and leaving his Son _Charles_, a Boy of 13 Years old; a _Council_ was held at _Tours_, wherein it was decreed, "The Education of the Boy shou'd be committed to _Anne_ the King's Sister;" but the Administration of the Kingdom shou'd be intrusted to certain Persons _Elected and approved by that Council_; notwithstanding _Lewis_, Duke of _Orleans_, the next Kinsman by the Father's Side, demanded it as his Right. A Testimony of which Transaction is extant in the Acts of that _Council_, printed at _Paris_; and in _Joannes Buchettus_ 4th Book, folio 167. * * * * * CHAP. XVIII. _Of the Remarkable Authority of the_ Council _against_ Lewis _the_ Eleventh. The _Power_ and _Authority_ of the _Council_ and the _Estates_ assembled, appears by the foregoing Testimonies to have been very great, and indeed (as it were) _Sacred_. But because we are now giving Examples of this Power, we will not omit a signal Instance of the _Authority_ of this _Council_, which interposed it self in the Memory of our Fathers against _Lewis the Eleventh_, who was reputed more crafty and cunning than any of the Kings that had ever been before him. In the Year 1460, when this _Lewis_ governed the Kingdom in such a Manner, that in many Cases the Duty of a good Prince, and a Lover of his Country, was wanting; the People began to desire the Assistance and _Authority_ of the Great _Council_, that some Care might therein be taken of the Publick Welfare; and because it was suspected the King wou'd not submit himself to it, the _Great Men_ of the Kingdom (stirred up by the daily Complaints and Solicitations of the _Commons_,) "resolv'd to gather Forces, and raise an _Army_; that (as _Philip de Comines_ expresses it) they might provide for the _Publick Good_, and expose the King's wicked Administration of the Commonwealth." They therefore agreed to be ready prepared with a good Army, that in Case the King should prove refractory, and refuse to follow good Advice, they might _compel him by Force_: For which Reason that War was said to have been undertaken for the Publick Good, and was commonly called the War _du bien public_. "_Comines_, _Gillius_, and _Lamarc_, have recorded the Names of those Great Men who were the principal Leaders, the _Duke of Bourbon_, the _Duke of Berry_, the King's Brother; the _Counts of Dunois_, _Nevers_, _Armagnac_, and _Albret_, and the _Duke_ of _Charalois_, who was the Person most concern'd in what related to the Government. Whereever they marched, they caused it to be proclaimed, that their Undertakings were only design'd for the _Publick_ Good; they published Freedom from Taxes and Tributes, and sent Ambassadors with Letters to the _Parliament_ at _Paris_, to the Ecclesiasticks, and to the Rector of the University, desiring them not to suspect or imagine these Forces were rais'd for the King's Destruction, but only to reclaim him, and make him perform the _Office_ of a _Good King_, as the present Necessities of the _Publick_ required."--These are _Gillius_'s Words, lib. 4. fol. 152. The Annals intituled the Chronicles of _Lewis the Eleventh_, printed at _Paris_ by _Galliottus_ fol. 27. have these Words.----"The first and chiefest of their Demands was, That a _Convention_ of the _Three States_ should be held; _because in all Ages it had been found to be the only proper Remedy for all Evils, and to have always had a Force sufficient to heal such sort of Mischiefs_."--Again, Pag. 28. "An Assembly was called on Purpose to hear the Ambassadors of the Great Men, and met on the 24th Day in the Town-House at _Paris_; at which were present some Chosen Men of the University, of the Parliament, and of the Magistrates. The Answer given the Ambassadors, was, That _what they demanded was most just_; and accordingly a _Council_ of the _Three Estates_ was summon'd."--These are the Words of that Historian.--From whence the Old Saying of _Marcus Antoninus_ appears to be most true.--"Etsi omnes molestæ semper seditiones sunt, justas tamen esse nonnullas, & prope necessarias: eas vero justissimas maximéque necessarias videri, cum populus Tyranni sævitiâ oppressus auxilium à legitimo Civium conventu implorat. Altho' all Sorts of Seditions are troublesome, yet some of them are just, and in a Manner necessary; but those are extraordinary just and necessary, which are occasion'd when the People oppress'd by the Cruelty of a Tyrant, implores the Assistance of a Lawful Convention." _Gaguinus_, in his Life of _Lewis_ the _Eleventh_, pag. 265. gives us _Charles_, the Duke of _Burgundy's_ Answer to that King's Ambassadors. "_Charles_ (says he) heard the Ambassadors patiently, but made Answer, That he knew no Method so proper to restore a firm Peace, at a Time when such great Animosities, and so many Disorders of the War were to be composed, as a _Convention of the Three Estates_. Which when the Ambassadors had by Special Messengers communicated to King _Lewis_, he hoping to gain his Point by Delays, summon'd the _Great Council_ to meet at _Tours_, on the Kalends of _April_ 1467; and at the appointed Time for the _Convention_, they came from all Parts of the Kingdom, &c." The same Passage, and in almost the same Words, is recorded in the Book of Annals, _fol. 64._ and in the Great Chronicle, _Vol. 4. fol. 242._ where these very remarkable Words are further added.--"In that Council it was appointed, that certain approved Men shou'd be chosen out of each of the _Estates_, who shou'd establish the Commonwealth, and take care that Right and Justice shou'd be done." But _Gillius_ in the Place above-mention'd says: "After the Battel at _Montlebery_, many well-affected and prudent Men were elected to be _Guardians_ of the _Publick Good_, according as it had been _agreed_ upon between the _King_ and the _Nobles_; among whom the Count of _Dunois_ was the Principal, as having been the chief Promoter of that Rising."--For it had grown into Custom after the Wealth of the _Ecclesiasticks_ was _excessively_ increas'd, to divide the People into Three _Orders_ or _Classes_, whereof the _Ecclesiasticks_ made one; and when those _Curators_ of the _Commonwealth_ were chosen, Twelve Persons were taken out of each Order. So that it was enacted in that _Council_, that 36 Guardians of the Republick shou'd be created, with Power, by common Consent, to redress all the Abuses of the Publick. Concerning which Thing, _Monstrellettus_, Vol. 4. fol. 150 writes thus: "In the first Place (says he) it was decreed, that for the re-establishing the State of the Commonwealth, and the easing the People of the Burthen of their Taxes, and to compensate their Losses, 36 Men shou'd be elected, who shou'd have _Regal Authority_; viz. 12 out of the _Clergy_, 12 out of the _Knights_, and 12 _skilful_ in the Laws of the Land; to whom Power should be given of inspecting and enquiring into the Grievances and Mischiefs under which the Kingdom laboured, and to apply Remedies to all: And the King gave his Promise _in Verbo Regis_, That whatsoever those 36 Men shou'd appoint to be done, he wou'd ratify and confirm." _Oliver de la Marck_, a _Flemming_, in his History, _cap. 35._ writes the same Thing, and mentions the same Number of 36 _Guardians_ or _Curators_ of the _Commonwealth_. And he farther adds; "That because the King did not stand to his Promise, but _violated_ his _Faith_, and the _Solemn Oath_ which he had publickly sworn, a most _cruel War_ was kindled in _Francogallia_, which set it all in a Flame, and continued near 13 Years. Thus that King's Perjury was punish'd both by his own Infamy, and the People's Destruction." Upon the whole Matter 'tis plain, that 'tis not yet a hundred Years compleat, since the Liberties of _Francogallia_, and the _Authority_ of its _annual General Council_, flourished in full Vigor, and exerted themselves against a King of ripe Years, and great Understanding; for he was above 40 Years old, and of such great Parts, as none of our Kings have equall'd him. So that we may easily perceive that our _Commonwealth_, which at first was _founded_ and _establish'd_ upon the _Principles of Liberty_, maintained it self in the same free and sacred State, (even by Force and Arms) against all the Power of Tyrants for more then Eleven Hundred Years. I cannot omit the great Commendation which that most noble Gentleman and accomplish'd Historian, _Philip de Comines_, gives of this Transaction; who in his 5th Book and 18th Chapter, gives this Account of it, which we will transcribe Word for Word.--"But to proceed: Is there in all the World any King or Prince, who has a Right of imposing a Tax upon his People (tho' it were but to the Value of one Farthing) without their own Will and Consent? Unless he will make use of Violence, and a Tyrannical Power, he cannot. But some will say there may happen an Exigence, when the Great _Council of the People_ cannot be waited for, the Business admitting of no Delay. I am sure, in the Undertaking of a War, there is no need of such hast; one has sufficient Leisure to think leisurely of that Matter. And this I dare affirm, that when Kings and Princes undertake a War with the Consent of their Subjects, they are both much more powerful, and more formidable to their Enemies.--It becomes a King of _France_ least of any King in the World, to make use of such expressions as this.--_I have a Power of raising as great Taxes as I please on my Subjects_;--for neither he, nor any other, has such a Power; and those Courtiers who use such Expressions, do their King no Honour, nor increase his Reputation with Foreign Nations; but on the contrary, create a Fear and Dread of him among all his Neighbours, who will not upon any Terms subject themselves to such a Sort of Government. But if our King, of such as have a Mind to magnify his Power; wou'd say thus; I have such obedient and loving Subjects, that they will deny me nothing in Reason; or, there is no Prince that has a People more willing to forget the Hardships they undergo; this indeed wou'd be a Speech that wou'd do him Honour, and give him Reputation. But such Words as these do not become a King; _I tax as much as I have a mind to; and I have a Power of taking it, which I intend to keep_. _Charles_ the Fifth never used such Expressions, neither indeed did I ever hear any of our Kings speak such a Word; but only some of their Ministers and Companions, who thought thereby they did their Masters Service: But, in my Opinion, they did them a great deal of Injury, and spoke those Words purely out of Flattery, not considering what they said. And as a further Argument of the gentle Disposition of the _French_, let us but consider that _Convention_ of the _Three Estates_ held at _Tours_, Anno 1484, after the Decease of our King _Lewis_ the _Eleventh_: About that time the wholsome Institution of the _Convention_ of the _Three Estates_ began to be thought a dangerous Thing; and there were some inconsiderable Fellows who said then, and often since, that it was High-Treason to make so much as mention of Convocating the _States_, because it tended to lessen and diminish the King's Authority; but it was they themselves who were _guilty of High-Treason against God, the King, and the Commonwealth_. Neither do such-like Sayings turn to the Benefit of any Persons, but such as have got great Honours or Employments without any Merit of their own; and have learnt how to flatter and sooth, and talk impertinently; and who fear all great Assemblies, lest there they shou'd appear in their proper Colours, and have all evil Actions condemned." * * * * * CHAP. XIX. _Of the Authority, of the Assembly of the States concerning the most important Affairs of Religion._ We have hitherto demonstrated, that the Assembly of the States had a very great Power in all Matters of Importance relating to our Kingdom of _France_. Let us now consider, what its Authority has been, in Things that concern Religion. Of this our Annals will inform us under the Year MCCC. when Pope _Boniface_ the Eighth sent Ambassadors to King _Philip the Fair_, demanding of him, whether he did not hold and repute himself to be subject to the Pope in all Things temporal as well as spiritual; and whether the Pope was not Lord over all the Kingdoms and States of _Christendom_? In Consequence of these Principles, he required of _Philip_ to acknowledge him for his Sovereign Lord and Prince, and to confess that he held his Kingdom of _France_ from the Pope's Liberality; or that if he refused to do this, he should be forthwith excommunicated, and declar'd a Heretick. After the King had given Audience to these Ambassadors, he summon'd the States to meet at _Paris_, and in that Assembly the Pope's Letters were read, to the Purport following. _Boniface, universal Bishop, the Servant of the Servants of God, to_ Philip _King of_ France. _Fear God and keep his Commandments. It is our Pleasure thou shouldst know, that thou art our Subject, as well in things temporal as Spiritual, and that it belongs not to thee to bestow Prebends or collate Benefices, in any Manner whatever. If thou hast the Custody of any such that may be now vacant, thou must reserve the Profits of them for the Use of such as shall succeed therein: and if thou hast already collated any of them, we decree by these Presents such Collation to be_ ipso facto _void, and do revoke whatever may have been transacted relating thereunto; esteeming all those to be Fools and Madmen, who believe the contrary. From our Palace of the_ Lateran _in the Month of December, and in the Sixth Year of our Pontificate_. These Letters being read, and the Deputies of the States having severally deliver'd their Opinions about them, after the Affair was maturely deliberated, it was ordain'd; first, that the Pope's Letters should be burnt in the Presence of his Ambassador, in the great Yard of the Palace: Then, that these Ambassadors with Mitres upon their Heads, and their Faces bedaub'd with Dirt, should be drawn in a Tumbrel by the common Hangman into the said Yard, and there be exposed to the Mockery and Maledictions of the People: finally, that Letters in the King's Name should be dispatched to the Pope, according to the Tenor following. Philip _by the Grace of God, King of_ France, _to_ Boniface, _who stiles himself universal Bishop, little or no greeting. Be it known to thy great Folly and extravagant Temerity, that in things temporal we have no Superior but God; and that the Disposal of the Vacancies of certain Churches and Prebends belong to us of Regal Right; that it is our due to receive the profits of them, and our Intention to defend our selves by the Edge of the Sword, against all such, as would any way go about to disturb us in the Possession of the same; esteeming those to be Fools and Brainless, who think otherwise_. For Witnesses of this History, we have the Author of the _Chronicle of Bretayne_, lib. 4. chap. 14. and _Nicholas Gilles_ in the _Annals of France_, to whom ought to be join'd _Papon._ in the first Book of his Arrests tit. 5. art. 27. * * * * * CHAP. XX. _Whether_ Women _are not as much debarr'd_ (_by the_ Francogallican Law) _from the_ Administration, _as from the_ Inheritance _of the Kingdom_. The present Dispute being about the _Government_ of the Kingdom, and the chief _Administration_ of Publick Affairs, we have thought fit not to omit this Question: Whether _Women_ are not as much debarr'd from the _Administration_, as from the _Inheritance_ of the Kingdom? And in the first Place we openly declare, that 'tis none of our Intention to argue for or against the _Roman_ Customs or Laws, or those of any other Nation, but only of the Institutions of this our own _Francogallia_. For as on the one Hand 'tis notorious to all the World, that by the _Roman_ Institutions, _Women_ were always under _Guardianship_, and excluded from intermeddling, either in publick or private Affairs, by Reason of the _Weakness_ of their Judgment: So on the other, _Women_ (by ancient Custom) obtain the _Supreme Command_ in _Some_ Countries. "The (_Britains_ says _Tacitus_ in his Life of _Agricola_) make _no Distinction of Sexes_ in _Government_." Thus much being premised, and our Protestation being clearly and plainly proposed, we will now return to the Question. And as the Examples of some former Times seem to make for the affirmative, wherein the Kingdom of _Francogallia_ has been administered by _Queens_, especially by _Widows_ and _Queen-Mothers_: So on the contrary, the Reason of the Argument used in Disputations, is clearly against it. For she, who cannot be Queen in her _own Right_, can never have any Power of Governing in another's Right: But here a Woman cannot reign in her own Right, nor can the Inheritance of the Crown fall to her, or any of her Descendants; and if they be stiled _Queens_ 'tis only accidentally; as they are _Wives_ to the _Kings_ their _Husbands_. Which we have prov'd out of Records for twelve hundred Years together. To this may be added (which we have likewise prov'd) that nor only the sole Power of _Creating_ and _Abdicating_ their Kings, but also the Right of electing _Guardians_ and _Administrators_ of the Commonwealth, was lodged in the same _Publick Council_. Nay, and after the Kings were created, the supreme Power of the Administration was retained still by the same _Council_. And 'tis not yet full a hundred Years since 36 Guardians of the Commonwealth were constituted by the same _Council_, like so many _Ephori_: and this during the Reign of _Lewis_ the _Eleventh_, as crafty and cunning as he was. If we seek for Authorities and Examples from our Ancestors, we may find several; there is a remarkable one in _Aimoinus_, lib. 4. cap. 1. where speaking of Queen _Brunechild_, Mother to young _Childebert_; "The Nobility of _France_ (says he) understanding that _Brunechild_ designed to keep the chief Management of the Kingdom in her own Hands; and having always hitherto, for so long a Time disdained to be subject to a Female Domination, did, &c." And indeed it has so happned in the Days of our Ancestors, that whenever Women got into their Hands the Procuration of the Kingdom, they have been always the Occasion of wonderful Tragedies: Of which it will not be amiss to give some Examples. Queen _Crotildis_, Mother of the two Kings, _Childebert_ and _Clotarius_, got once the Power into her Hands; and being extravagantly fond of the Sons of _Clodomer_, (another of her Sons then dead) occasion'd a great deal of Contention, by her endeavouring to exclude her Sons, and promote these Grandsons to the Regal Dignity; and upon that Score she nourished their _large Heads of Hair_ with the greatest Care and Diligence imaginable, according to that ancient Custom of the Kings of the _Franks_, which we have before given an Account of. The two Kings (as soon as they understood it) presently sent one _Archadius_, who presenting her with a naked Sword and a Pair of Shears, gave her Choice which of the two She had rather shou'd be applied to the Boys Heads. But She (says _Gregory_ of _Tours_) being enraged with Choler, especially when She beheld the naked Sword and the Scissars, anwer'd with a great deal of Bitterness--"Since they cannot be advanced to the Kingdom, I had rather see them dead than shaven"--And thereupon both her Grandsons were beheaded in her Presence. The same _Gregory_, lib. 3. cap. 18. subjoyns--"This Queen, by her Liberalities and Gifts conferr'd upon Monasteries, got the Affections, _Plebis & vulgi_ of the common People and Mob: _Date frenos_ (says Cato) _impotenti naturæ, & indomito animali, & sperate ipsas modum licentiæ facturas_. Give Bridles to their unruly Natures, and curb the untamed Animal; and then, you may hope they shall see some Bounds to their Licentiousness." What an unbridled Animal and profligate Wretch was that Daughter of King _Theodorick_, by Birth an _Italian_; who being mad in Love with one of her Domesticks, and knowing him to have been kill'd by her Mother's Orders, feigned a thorough Reconciliation, and desir'd in Token of it to receive the Holy Sacrament of the Lord's Supper with her Mother; but Privately mixing some Poyson in the Chalice, She at once gave the strangest Instance both of Impiety and Cruelty in thus murdering her own Mother. The Account given of it by _Gregory_ of _Tours_ is this: "They were (says he) of the _Arrian Sect_, and because it was their Custom that the Royal Family shou'd communicate at the Altar out of one Chalice, and People of Inferior Quality out of another. (_By the way, pray take notice of the Custom of Communicating in both kinds by the People._) She dropped Poyson into that Chalice out of which her Mother was to communicate; which as soon as she had tasted of it, kill'd her presently."--_Fredegunda, Queen-Mother_, and Widow of _Chilperick the First_, got the Government into her Hands; She, in her Husband's Time, lived in Adultery with one _Lander_; and as soon as she found out that her Husband _Chilperick_ had got Wind of it, she had him murdered, and presently seiz'd upon the Administration of the Kingdom as Queen-Mother, and Guardian of her Son _Clotharius_, and kept Possession of it for 13 Years; in the first Place she poyson'd her Son's Uncle _Childebert_, together with his Wife; afterwards she stirred up the _Hunns_ against his Sons, and raised a Civil War in the Republick. And lastly, She was the Firebrand of all those Commotions which wasted and burnt all _Francogallia_, during many Years, as _Aimoinus_ tells us, [lib. 3. cap. 36. & lib. 8. cap. 29.] There ruled once in _France_, _Brunechild_, Widow of King _Sigebert_, and Mother of _Childebert_. This woman had for her Adulterer a certain _Italian_, called _Protadius_, whom She advanced to great Honours: She bred up her two Sons, _Theodebert_ and _Theodorick_, in such a wicked and profligate Course of Life, that at last they became at mortal Enmity with each other: And after having had long Wars, fought a cruel single Combat. She kill'd with her own Hands her Grandson _Meroveus_, the Son of _Theodebert:_ She poysoned her Son _Theodorick_. What need we say more? _Date frænos_ (as _Cato_ says) _impotenti naturæ, & indomito animali; & sperate illas modum licentiæ facturas_. She was the Occasion of the Death of Ten of the Royal Family: And when a certain Bishop reproved her, and exhorted her to mend her Life, She caused him to be thrown into the River. At last, a _Great Council_ of the _Franks_ being summoned, She was judged, and condemned, and drawn in Pieces by wild horses, being torn Limb from Limb. The Relators of this Story are, _Greg. Turonensis_, [lib. 5. cap. 39.] and [lib. 8. cap. 29.] And _Ado_ [�tat. 6.] _Otto Frising._ [Chron. 5. Cap. 7.] _Godfridus Viterbiensis_ [Chron. parte 16.] & _Aimoinus_ [lib. 4. cap. 1.] Also the Appendix of _Gregory of Tours_, [lib. 11.] whose Words are these: "_Having convicted her of being the Occasion of the Death of Ten Kings of the_ Franks; _to wit, of_ Sigebert, Meroveus, _and his Father_ Chilperick; Theodebert, _and his Son_ Clothair; Meroveus, _the Son of_ Clothair, Theodorick, _and his three Children, which had been newly killed, they order'd her to be placed upon a Camel, and to be tortured with divers sorts of Torments, and so to be carried about all the Army; afterwards to be tied by the Hair of the Head, one Leg and one Arm to a Wild Horse's Tail; by which being kick'd, and swiftly dragg'd about, She was torn Limb from Limb._" Let us instance in some others: _Plectrudis_ got the Government into her Hands; a Widow not of the King, but of _Pipin_, who ruled the Kingdom whilst _Dagobert_ the Second bore the empty Title of King. This _Plectrudis_ having been divorced by her Husband _Pipin_, because of her many Adulteries and flagitious Course of Life; as soon as her Husband was dead, proved the Incendiary of many Seditions in France. She compell'd that gallant Man _Charles Martel_, Mayor of the Palace, to quit his Employment, and in his Place put one _Theobald_, a most vile and wicked Wretch; and at last She raised a most grievous Civil War among the _Franks_, who in divers Battels discomfited each other with most terrible Slaughters. Thus, says _Aimoinus_, [lib 4. cap. 50. & cap sequen.] Also the Author of a Book called, The State of the Kingdom of _France_ under _Dagobert_ the Second, has these Words: _"When the_ Franks _were no longer able to hear the Fury and Madness of_ Plectrude, _and saw no Hopes of Redress from King_ Dagobert, _they elected one_ Daniel _for their King, (who formerly had been a Monk) and called him_ Chilperick." Which Story we have once before told you. But let us proceed. The Queen-Mother of _Charles_ the _Bald_, (whose Name was _Judith_) and Wife of _Lewis the Pious_, who had not only been King of _Francogallia_, but Emperor of _Italy_ and _Germany_, got the Government into her Hands. This Woman stirred up a most terrible and fatal War between King _Lewis_ and his Sons, (her Sons in Law) from whence arose so great a Conspiracy, that they constrained their Father to abdicate the Government, and give up the Power into their Hands, to the great Detriment of almost all _Europe_: The Rise of which Mischiefs, our Historians do unanimously attribute, for the most Part, to _Queen Judith_ in a particular Manner: The Authors of this History are the _Abbot_ of _Ursperg_, _Michael Ritius_ and _Otto Frising._ [Chron. 5. cap. 34.] "_Lewis_ (says this last) _by reason of the Evil Deeds of his Wife_ Judith, _was driven out of his Kingdom_." Also _Rhegino_ [in Chron. ann. 1338.] "_Lewis_ (says he) _was deprived of the Kingdom by his Subjects, and being reduced to the Condition of a private Man, was put into Prison, and the Sole Government of the Kingdom, by the Election of the_ Franks, _was conferr'd upon_ Lotharius _his Son. And this Deprivation of_ Lewis _was occasioned principally through the many Whoredoms of his Wife_ Judith." Some Ages after, Queen _Blanch_, a _Spanish_ Woman, and Mother to St. _Lewis_, ruled the Land. As soon as She had seized the Helm of Government, the Nobility of _France_ began to take up Arms under the Conduct of _Philip_ Earl of _Bologn_, the King's Uncle, crying out (as that excellent Author _Joannes Joinvillæus_ writes) [cap. histor. 4.] "_That it was not to be endured that so great a Kingdom shou'd be governed by a Woman, and She a Stranger._" Whereupon those Nobles rejecting _Blanch_, chose Earl _Philip_ to be Administrator of the Kingdom: But _Blanch_ persisting in her Purpose, sollicited Succours from all Parts, and at last determined to conclude a League with _Ferdinand_ King of _Spain_. With _Philip_ joyned the Duke of _Brittany_, and the _Count de Eureux_ his Brother. These, on a sudden, seiz'd on some Towns, and put good Garisons into them. And thus a grievous War was begun in _France_, because the Administration of the Government had been seized by the Queen-Mother: It hapned that the King went (about that Time) to _Estampes_, being sent thither by his Mother upon Account of the War: To that Place the Nobles from all Parts hastily got together, and began to surround the King not with an Intention (as _Joinville_ says) to do him any Harm, but to withdraw him from the Power of his Mother. Which She hearing, with all Speed armed the People of _Paris_, and commanded them to march towards _Estampes_. Scarce were these Forces got as far as _Montlebery_, when the King (getting from the Nobles) joyned them, and returned along with them to _Paris_. As soon as _Philip_ found that he was not provided with a sufficient force of Domestick Troops, he sent for Succours to the Queen of _Cyprus_, (who at the fame Time had some Controversy depending in the Kingdom) She entring with a great Army into _Champagn_, plunder'd that Country far and near; _Blanch_ however continues in her Resolution. This constrains the Nobility to call in the _English_ Auxiliaries, who waste _Aquitain_ and all the Maritime Regions; which Mischiefs arose thro' the Ambition and unbridled Lust of Rule of the Queen-Mother, as Joinvillæus tells us at large, [cap. 7, 8, 9, 10.] And because many of our Countrymen have a far different Opinion of the Life and Manners of Queen _Blanch_, occasioned (as 'tis probable) by the Flattery of the Writers of those Times; (For all Writers either thro' Fear of Punishment, or, by Reason of the Esteem which the Kings their Sons have in the World, are cautious how they write of Queen-Mothers:) I think it not amiss to relate what _Joinville_ himself records [cap 76.] _viz._ That She had so great a Command over her Son, and had reduced him to that Degree of Timidity and Lowness of Spirit, that She would very seldom suffer the King to converse with his Wife _Margaret_, (her Daughter-in-Law) whom She hated. And therefore whenever the King went a Journey, She ordered the Purveyors to mark out different Lodgings, that the Queen might lie separate from the King. So that the poor King was forced to place Waiters and Doorkeepers in Ambush whenever He went near his Queen; Ordering them, that when they heard his Mother _Blanch_ approach the Lodgings, they shou'd beat some Dogs, by whose Cry he might have Warning to hide himself: And one Day (says _Joinville_) when Queen _Margaret_ was in Labour, and the King in Kindness was come to visit her, on a sudden Queen _Blanch_ surprized him in her Lodgings: For altho' he had been warned by the howling of the Dogs, and had hid himself (wrapp'd up in the Curtains) behind the Bed; yet She found him out, and in the Presence of all the Company laid Hands on him, and drew him out of the Chamber: You have nothing to do here (said She) get out. The poor Queen, in the mean Time, being not able to bear the Disgrace of such a Reproof, fell into a Swoon for Grief; so that the Attendants were forced to call back the King to bring her to her self again, by whose Return She was comforted and recover'd. _Joinville_ tells this Story [_cap. hist. 76._] in almost these same Words. Again, Some Years after this, _Isabella_, Widow of _Charles_ the 6th, (Sirnamed the _Simple_) got Possession of the Government: For before the Administration of the Publick Affairs cou'd be taken care of by the _Great Council_, or committed by them to the Management of chosen and approved Men, many ambitious Courtiers had stirr'd up Contentions: Six Times these Controversies were renewed, and as often composed by Agreement. At last _Isabella_ being driven out of _Paris_ betook her self to _Chartres_: There, having taken into her Service a subtle Knave, one _Philip de Morvilliers_, She made up a Council of her own, with a President, and appointed this _Morvilliers_ her Chancellor; by whose Advice She order'd a Broad-Seal, commonly called, a Chancery-Seal, to be engraven: On which her own Image was cut, holding her Arms down by her Sides: and in her Patents She made use of this Preamble. "Isabella, _by the Grace of God, Queen of_ France: _who, by Reason of the King's Infirmity, has the Administration of the Government in her Hands, &c._"--But when the Affairs of the Commonwealth were reduced to that desperate Future, that all Things went to Rack and Ruin, She was by the _Publick Council_ banished to _Tours_, and committed to the Charge of Four Tutors, who had Orders to keep her lock'd up at Home, and to watch her so narrowly, that She shou'd be able to do nothing; not so much as to write a Letter without their Knowledge. A large Account of all this Transaction we have in _Monstrellet's_; History. [_cap._ 161 & _cap._ 168.] * * * * * CHAP. XXI. _Of the_ Juridical Parliaments _in_ France. Under the _Capevingian_ Family there sprung up in _Francogallia_ a Kind of Judicial Reign, [_Regnum Judiciale_] of which (by Reason of the incredible Industry of the Builders up and Promoters of it, and their unconceivable Subtilty in all subsequent Ages), we think it necessary to say something. A Sort of Men now rule every-where in _France_, which are called _Lawyers_ by some, and _Pleaders_ or _Pettyfoggers_ by others: These Men, about 300 Years ago, managed their Business with so great Craft and Diligence, that they not only subjected to their Domination the Authority of the _General Council_, (which we spoke of before) but also all the _Princes_ and _Nobles_, and even the _Regal Majesty_ it self: So that in whatever Towns the Seats of this same _Judicial Kingdom_ have been fix'd, very near the third Part of the Citizens and Inhabitants have applied themselves to the Study and Discipline of this wrangling Trade, induced thereunto by the vast Profits and Rewards which attend it. Which every one may take Notice of, even in the City of _Paris_, the Capital of the Kingdom: For who can be three Days in that City without observing, that the third Part of the Citizens are taken up with the Practice of that _litigious_ and _Pettyfogging_ Trade? Insomuch, that the General Assembly of Lawyers in that City (which is called the _Robed Parliament_) is grown to so great a Heighth of Wealth and Dignity, that now it seems to be (what _Jugurtha_ said of old of the _Roman Senate_) no longer an _Assembly_ of _Counsellors_, but of _Kings_, and _Governors_ of _Provinces_. Since whoever has the Fortune to be a Member of it, how meanly born soever, in a few Years Time acquires immense and almost Regal Riches: For this Reason many other Cities strove with Might and Main to have the like Privilege of _Juridical_ Assemblies: So that now there are several of these famous Parliaments, to wit, those of _Paris, Tholouse, Rouen, Grenoble, Bourdeaux, Aix_, and _Dijon_: All which are _fix'd_ and _sedentary_; besides an Eighth, which is ambulatory and moveable, and is called the _Grand Council_. Within the Limits of these great _Juridical Kingdoms_ there are others lesser, which we may call _Provincial Governments_, who do all they can to imitate the Grandeur and Magnificence of their Superiors; and these are called _Presidial Courts_: And so strong is the Force and Contagion of this Disease, that a very great Part of the _French_ Nation spends its Time and Pains in Strife and Law-Suits, in promoting Contentions and Processes; just as of old, a great Number of the _Egyptians_ were employ'd by their Tyrants in Building _Pyramids_, and other such useless Structures. Now the Word _Parliament_ in the old Manner of Speech used by our Countrymen, "signifies a Debate, or discoursing together of many Persons, who come from several Parts, and assemble in a certain Place, that they may communicate to one another Matters relating to the Publick." Thus in our ancient Chronicles, whenever Princes or their Ambassadors had a Meeting to treat of Peace or Truce, or other Warlike Agreements; the Assembly so appointed was always called a _Parliament_; and for the same Reason the _Publick Council_ of the _Estates_ was, in our old Language, called a _Parliament_. Which Assembly, being of great Authority, the Kings of the _Capevingian_ Race having a Mind to diminish that Authority by little and little, substituted in its Place a certain Number of _Senators_, and transferred the August Title of a _Parliament_ to those _Senators:_ And gave them these Privileges: First, That none of the King's Edicts shou'd be of Force, and ratified, unless those Counsellors had been the _Advisors_ and _Approvers_ of them. Next, That no Magistracy or Employment in all _France_, whether Civil or Military, shou'd be conferr'd on any Person, without his being _inaugurated_, and taking the _Oaths_ in that _Assembly_. Then that there should be _no Liberty of Appeal_ from their judgment, but that all their Decrees should stand firm, and inviolable. In fine, whatever Power and Authority had anciently been lodged in the _General Council_ of the Nation, during so many Years together, was at Length usurped by that _Counterfeit Council_, which the Kings took care to fill with such Persons as would be most subservient to their Ends. Wherefore it will be worth our while, to enquire from what Beginnings it grew up to so great a Heighth and Power; First, a very magnificent Palace was built at _Paris_, by Order (as some say) of King _Lewis Hutin_, which in our Ancient Language signifies _mutinous_ or _turbulent_. Others say, by _Philip the fair_, about the Year 1314. thro' the Industry and Care of _Enguerrant de Marigny_ Count of _Longueville_, who was hanged some Years after on a Gallows at _Paris_, for embezzling the Publick Money, Whoever 'twas that built it, we may affirm, that our _Francogallican_ Kings took the same Pains in building up this _litigious Trade_, that the _Egyptian_ Monarchs are said to have done in employing their Subjects to build the _Pyramids_; among whom _Chemnis_ is recorded to have gathered together 360000 Men to raise one Pyramid. _Gaguinus_, in his History of King _Hutin's_ Life, has this Passage,--"_This_ Lewis _ordained, That the Court of Parliament should remain fixed and immoveable in the City of_ Paris, that Suitors and Clients might not be put to the Trouble of frequent Removals." Now what some affirm, that _Pipin_ or _Charlemagn_ were the Authors of this Institution, is very absurd, as we shall plainly make appear. For most of the Laws and Constitutions of _Charlemagn_ are extant; in all which there is not the least Mention made of the Word _Parliament_, nor of that great _fixed Senate_; he only ordains, That in certain known Places his Judges should keep a _Court_, and assemble the People; which according to his usual Custom he calls a _Placitum_, or a _Mallum_, as [_lib. 4. cap. 35._ Legis _Franciæ_] 'tis written, "_He shall cause no more than three general_ Placita _to be kept in one Year, unless by chance some Person is either accused, or seizes another Man's Property, or is summoned to be a Witness--._" There are many other Laws extant of that King's of the like Nature, by which we may observe the Paucity of Law-suits in his Days: And I am clearly of Opinion, that what I find several of our modern Authors have affirm'd is most true, _viz._ that the first Rise and Seeds of so many Law-suits, Calumnies and Contentions in this Kingdom, proceeded from Pope _Clement_ the Fifth, who during the Reign of _Philip the Fair_, transferred the Seat of his Papacy to _Avignon_, at which Time his Courtiers and Petty-Foggers, engaging into Acquaintance with our Countrymen, Introduced the _Roman_ Arts of Wrangling into our Manners and Practice. But not to speak of such remote Times. About the Year of our Lord 1230. reigned St. _Lewis_, as he is plainly called, whose Life _Johannes Joinvillæus_ (whom we have often mentioned) has written at large. Out of his Commentary we may easily learn, how few Contentions and Law-Suits were in those Days, since King _Lewis_ either determined the Controversies himself in Person, or referred them to be determined by some of his Followers and Companions: And therefore [_cap._ 94.] he thus writes,--"_He was wont_ (says he) _to command Lord_ Nellius, _Lord_ Soissons, _or my self, to inspect and manage the Appeals which were made to him. Afterwards he sent for us, and enquired into the State of the Case; and whether it were of such a Nature as could not be ended without his own Intervention. Oftentimes it hapned, that after we had made our Report, he sent for the contending Parties, and heard the Cause impartially argued over again. Sometimes for his Diversion he would go to the Park of_ Bois de Vincennes, _and sitting down upon a green Sodd at the Foot of an Oak Tree, would command us to sit by him; and there if any one had Business, he wou'd cause him to be called, and bear him patiently. He wou'd often himself proclaim aloud, That if any one had Business, or a Controversy with an Adversary, he might come near and set forth the Merits of his Cause; then if any Petitioner came, he wou'd hear him attentively; and having throughly considered the Case, wou'd pass judgment according to Right and Justice. At other Times he appointed_ Peter Fountain _and_ Godfrey Villet _to plead the Causes of the contending Parties. I have often_ (says he) _seen that good King go out of Paris into one of his Gardens or Villa's without the Walls, dressed very plainly, and there order a Carpet to be spread before him on a Table; and having caused Silence to be proclaimed, those which were at Variance with each other, were introduced to plead their Causes; and then he presently did Justice without Delay._" Thus far _Joinvillæus_--By which we may guess at the small Number of Law Suits and Complainants in those Days, and how careful our Kings were of preventing the Mischiefs that might arise from such as fomented Controversies. In the _Capitular_ of _Charles the Great_ this Law is extant.--"_Be it known unto all Persons both Nobility and People, by these our Patents, That we will sit one Day in every Week to hear Causes in Person._" We have the like Testimony in _William Budæus_, a very famous Man, and a Principal Ornament of our Kingdom of _France_. For in his Annotations on the _Pandects_ (where he treats of this very Argument, and inveighs against this _Kingdom of Brawlers and Petty-Foggers_) he tells us, that he finds in the Regal Commentaries of Venerable Antiquity, (the free Perusal of which his Quality did intitle him to) "_That in the Reign of the same King_ Lewis, [Anno 1230.] _several Controversies arose between the King and the Earl of_ Britany; _And that by Consent (as 'tis probable) of both Parties, a Camp-Court of Judicature was summoned to meet at_ Erceniacum, _wherein sate as Judges, not Lawyers, Civilians and Doctors, but Bishops, Earls, and Barons. And there the Earl of_ Britany _was cast, and it was order'd that the Inhabitants of his County should be absolved and freed from the Oath of Allegiance and fidelity, which they had taken to him_. Again, in the same King's Reign, [Anno 1259.] _a Dispute having arisen about the County of_ Clairmont _between the King and the Earls of_ Poitou _and_ Anjou, _a Court of Judicature, composed of the like Persons was appointed, wherein sat the Bishops and Abbots, the General of the_ Dominicans, _the Constable, the Barons, and several_ Laicks. To this he subjoyns: _Yet there were two Parliaments called each Year, at_ Christmas _and at_ Candlemas, _like as there are two_ Scacaria _summoned in_ Normandy _at_ Easter _and at_ Michaelmas." Thus far _Budæus_; to whom agrees what we find in an ancient Book concerning the _Institution of Parliaments_, wherein this Article is quoted out of the _Constitution of Philip_ the 4th, Sirnamed the _Fair_ [ex Anno 1302.]--"_Moreover, for the Conveniency of our Subjects, and the expeditious determining of Causes, we propose to have it enacted, that two Parliaments shall be held every Year at_ Paris, _and two_ Scacaria _at_ Rouen: _That the_ Dies Trecenses _shall be held twice a Year: and that a Parliament shall be held at_ Tholouse, _as it used to be held in past Times, if the People of the Land consent to it: Also, because many Causes of great Importance are debated in our Parliament, between great and notable Personages; We ordain and appoint, that two Prelates, and two other sufficient Persons, being Laymen of our Council; or at least one Prelate and one Laick, shall be continually present in our Parliaments, to hear and deliberate concerning the above-mentioned Causes."_--From which Words we may learn, First, how _seldom_ the Courts of Judicature heard Causes in those Days. Next, how few judges sat in those _Parliaments_. For as to the other Provinces and Governments of the Kingdom, we have (in the same Book) the _Constitution of Philip the Fair_, in these Words, [Anno 1302.]--"_Moreover, We ordain that our Seneschals and Bayliffs shall hold their Assizes in Circuit throughout their Counties and Bayliwicks once every two Months at least."_ Furthermore, _Budæus_ in the same Place, [Anno 1293.] writes, that _Philip_ the _Fair_ appointed, that three Sorts of People shou'd sit in Parliament, viz. _Prelates, Barons_, and _Clerks mixed with Laymen:_ "Since the Laicks (says he) are chosen promiscuously out of the Knights, and out of other Sorts of People. Also, that the Prelates and Barons shou'd select fit Persons out of that third Estate, to exercise every Sort of Judicature; and at the same Time shou'd chuse three Judges, who shou'd be sent abroad into those Countries where the written Laws of the Land had their Course, that they might there judge and determine according to Law. And if any Question of great Importance were to be argued, they should take to their Assistance the most Learned Men they could get.--" In which Place, _Budæus_ lamenting the Evil Customs of our Times; that is, this _Kingdom of Lawyers_ now in Vogue, breaks out with _Juvenal_ into this Exclamation: "_Quondam hoc indigenæ vivebant more! So_ (says he) _may I exclaim, that in Old Times, when this Kingdom flourished, (as many appear by our Money coined of pure fine Gold) there was a plain and easy Way of doing Justice; there were few Law-suits, and those not of long Continuance, or indeed Eternal, as now they are; for then this Rabble-Rout of pretended Interpreters of the Law had not invaded the Publick: neither was the Science of the Law stretched out to such an unlimited Extent; but Truth and Equity, and a prudent Judge, endued with Integrity and Innocence, was of more worth than Six hundred Volumes of Law-Books. But now to what a sad Condition Things are brought, every one sees, but no Body dares speak out. [Sed omnes dicere mussant.]"_ Thus far honest _Budæus_; a most inveterate Adversary of this Art of Chicanery, upon all Occasions. To return to our Purpose, of giving an Account upon what Foundations and Beginnings this _Reign of Litigiousness_ was first raised. As _Cicero_ writes, that the Old High-Priests (by Reason of the Multitude of Sacrifices) instituted three Assistants called _Viri Epulones_, altho' they themselves were appointed by _Numa_ to offer Sacrifice at the _Ludi Epulares_: In like Manner, out of a very _Small Number_ of Parliamentary Judges, (when Law-Suits and Litigiousness increased) swarm'd this incredible Multitude of _Judges_, and _Spawn_ of _Counsellors_. And, in the first Place, a great, sumptuous and magnificent Palace was built (as we told you before) either by the Command of _Lewis Hutin_, or of _Philip the Fair:_ then (from a moderate Number of judges) three Courts of Ten each, were elected a [_tres decurie_] _viz._ Of the _great Chamber_ of _Accounts_, of _Inquests_, and of _Requests_. Which Partition _Budæus_ speaks of in the above quoted Place, but more at large _Gaguinus_ in his Life of King _Lewis Hutin_. I must not omit one remarkable Thing that ought for ever to be remembred, which both these Authors have transmitted to Posterity: _viz._ That this Meeting of the Court of Judicature was not _perpetual_ and _fixed_, as 'tis now, but _summonable_ by the _King's Writs_, which every Year were renewed by Proclamation about the Beginning of _November:_ "_And that we may be certain_ (says _Gaguinus) that the King was the Original and Author of this solemn Convention; the Royal Writs are issued every Year, whereby the Parliament is authorized to meet on the Feast-day of_ St. Martin, _that is, on the 10th of_ November." Now of the wonderful and speedy Increase of this _Judicial Kingdom_, we have this Instance; That about a hundred Years after its Beginning, that is, in the Year 1455, in the Reign of _Charles_ the 7th, we find this Order made by him--_From the Feast of_ Easter, _till the End of the Parliament, the Presidents and Counsellors ought to meet in their respective Chambers at Six a Clock every Morning: from the Feast of St._ Martin _forwards, they may meet later.--_And a little after it says, _We judge it very necessary, that the Presidents and Counsellors of the Court shou'd come to Parliament after Dinner, for the Dispatch of Causes, and of Judgments._ This was _Charles_ the 7th's Order: But in _Charles_ the Great's Reign, who ruled a Kingdom three Times as big, we find a very different Manner of rendring Justice; as we may easily understand by that Law of his, mention'd lib. 4. cap. 74. _Legis Franciæ_; "_Let a_ Comes, _a Judge_ (says he) _not hold a_ Placitum, _(that is, not pass a Decree) but before Dinner, or Fasting._" Concerning the Word _Parliament_, and the Authority of that Name, we have this Argument; That when of old a Senate was instituted in _Dauphine_ with supreme Authority, which was commonly called the _Council of Dauphine_; _Lewis_ the 11th endeavouring to oblige the _Dauphinois_, who had well deserved from him, changed the Name of this _Council_ into that of a _Parliament_, without adding any Thing to the Privileges or Authority of it. Of which _Guidopappius_ is our Witness. [Quest. 43. and again quest. 554.] FINIS. 
31335	----	[Transcribers notes] This text is derived from a raw txt file in the Internet Archive. Obvious misspellings have been corrected but quotations and contemporary spellings are unchanged. The St. Peters river is mentioned as a proposed northern border for the new state of Iowa. It is now named the Minnesota river; it runs from western Minnesota (about 120 miles north of the final Iowa border at 43.5 degrees North) southeast to Mankato (about 45 miles north of the Iowa border), then to the Twin Cities (about 120 miles north of the Iowa border). Had the St. Peters been adopted about 15,000 square miles of what is now Minnesota would have been Iowa. Another proposal to extend the border to the 45th parallel would have put most of the Twin Cities in Iowa. [End Transcriber's note] HISTORY OF THE CONSTITUTIONS OF IOWA BY BENJAMIN F. SHAMBAUGH, PH. D. PROFESSOR OF POLITICAL SCIENCE IN THE UNIVERSITY OF IOWA PUBLISHED BY THE HISTORICAL DEPARTMENT OF IOWA DES MOINES, IOWA 1902 TO HIS FRIEND CHARLES ALDRICH FOUNDER AND CURATOR OF THE HISTORICAL DEPARTMENT OF IOWA THIS VOLUME IS GRATEFULLY DEDICATED BY THE AUTHOR PREFACE To recur occasionally to the history and ideals of our pioneer forefathers will give us a more generous appreciation of the worth of our Commonwealth and a firmer faith in our own provincial character. It is believed that a more intimate knowledge of the political history of our own Commonwealth will not only inspire local patriotism, but give us a better perspective of the political life of the Nation. This little volume was written for publication by the Historical Department of Iowa upon the request of Mr. Charles Aldrich. Since the work is intended as a narrative essay, it has been thought best to omit all foot-note citations to authorities. For the original sources upon which the essay is largely based the reader is referred to the author's collections of documentary materials which have been published by the Iowa State Historical Society. Quotations used in the body of the text have been reprinted _literatim_ without editing. The Convention of 1857 and the Constitution of 1857 have been little more than noticed in chapters XIX and XX. An adequate discussion of these subjects would have transcended the limits set for this volume by several hundred pages. The author wishes to express his obligations to his friend and colleague, Professor W. C. Wilcox, of the University of Iowa, who has carefully read the proof-sheets of the whole volume. BENJ. F. SHAMBAUGH. UNIVERSITY OF IOWA JULY, 1902 CONTENTS I. INTRODUCTION II. A DEFINITION III. THE CONSTITUTION MAKERS IV. SQUATTER CONSTITUTIONS V. THE TERRITORY OF WISCONSIN VI. THE TERRITORY OF IOWA VII. THE CONSTITUTION OF THE TERRITORY VIII. THE CONSTITUTION OF THE TERRITORY AMENDED XI. AGITATION FOR A STATE CONSTITUTION X. THE CONVENTION OF 1844 XI. THE CONSTITUTION OF 1844 XII. THE CONSTITUTION OF 1844 SUBMITTED TO CONGRESS XIII. THE CONSTITUTION OF 1844 DEBATED AND DEFEATED BY THE PEOPLE XIV. THE CONSTITUTION OF 1844 REJECTED A SECOND TIME XV. THE CONVENTION OF 1846 XVI. THE CONSTITUTION OF 1846 XVII. THE NEW BOUNDARIES XVIII. THE ADMISSION OF IOWA INTO THE UNION XIX. THE CONVENTION OF 1857 XX. THE CONSTITUTION OF 1857 _AN HISTORICAL ESSAY_ I INTRODUCTION Three score years and ten after the declaration went forth from Independence Hall that "all men are created equal," and fifteen years before the great struggle that was to test whether a nation dedicated to that proposition can long endure, Iowa, "the only free child of the Missouri Compromise," was admitted into the Union on an equal footing with the original States. Profoundly significant in our political evolution are events such as these. They are milestones in the progressive history of American Democracy. To search out the origin, to note the progress, to point to the causes, and to declare the results of this marvelous popular political development in the New World has been the ambition of our historians. Nay more, the "American experiment" has interested the talent of Europe; and our political literature is already enriched by De Tocqueville's "_Democracy in America_," by von Holst's "_Constitutional and Political History of the United States_," and by Bryce's "_American Commonwealth_." Ever since its adoption the Constitution of the "Fathers" has been the most popular text-book of constitution drafters the world over. At the same time it is strangely true that the real meaning, the philosophical import, of this interesting political drama has scarcely anywhere been more than suggested. A closer view reveals the fact that all of the documents themselves have not yet been edited, nor the narrative fully told. At present there is not a chapter of our history that is wholly written, though the manuscript is worn with erasures. To be sure, Bancroft has written exhaustively of the Colonies; Fiske has illuminated the Revolution and portrayed the "Critical Period;" Frothingham has narrated the "Rise of the Republic;" Parkman has vividly pictured events in the Northwest; McMaster has depicted the life of the people; von Holst has emphasized the importance of slavery; Rhodes has outlined more recent events; and a host of others have added paragraphs, chapters, monographs, and volumes to the fascinating story of the birth and development of a Democratic Nation. But where are the classics of our local history? Who are the historians of the Commonwealths? These questions reveal great gaps in our historical literature on the side of the Commonwealths. Nor have the omissions passed unnoticed. Bryce likens the history of the Commonwealths to "a primeval forest, where the vegetation is rank and through which scarcely a trail has been cut." And yet it is clearly evident that before the real import of American Democracy can be divined the forest must be explored and the underbrush cleared away. This is not a plea for localism or particularism. On the contrary, it suggests the possibility of a broader view of our National life. It points to the source of our political ideals. For nothing is more misleading than the inference that the life of our people is summed up in the Census Reports, the Journals of Congress, and the Archives of the Departments at Washington. The real life of the American Nation spreads throughout forty-five Commonwealths. It is lived in the commonplaces of the shop, the factory, the office, the mine, and the farm. Through the Commonwealths the spirit of the Nation is expressed. Every American community, however humble, participates in the formation and expression of that spirit. Thus the real significance of the Commonwealth in any philosophical consideration depends not so much upon its own peculiar local color as upon the place which it occupies in the life and development of the larger National whole. It is so with Iowa. Here within the memory of men still living a new Commonwealth has grown to maturity, has been admitted into the Union, and now by common consent occupies a commanding position in National Politics. It is, moreover, from the view-point of these larger relations that the political and constitutional history of Iowa will ultimately be interpreted. No amount of interest in merely local incident or narration of personal episode will suffice to indicate the import of Iowa's political existence. He who essays to write the history of this Commonwealth must ascend to loftier heights. To narrate briefly the history of the Constitutions of Iowa, and therein to suggest, perhaps, somewhat of the political ideals of the people and the place which this Commonwealth occupies politically in the progressive history of the larger Commonwealth of America, is the purpose of these pages. II A DEFINITION Definition is always difficult; it may be tiresome. But when a term has come to have many different meanings, then no one who seriously desires to be understood can use it in the title of a text without at least attempting a definition. This is true of the word "Constitution," which in the literature of Political Science alone has at least three distinct meanings corresponding to the three points of view, that is, the philosophical, the historical, and the legal. From the view-point of Political Philosophy the word "Constitution," stands for the fundamental principles of government. It is the sum (1) of the general and basic principles of all political organization by which the form, competence, and limitations of governmental authorities are fixed and determined, and (2) of the general and basic principles of liberty, in accordance with which the rights of men living in a social state are ascertained and guaranteed. In short, it is the sum of the ultimate principles of government. But from the view-point of Historical Politics this word has a different connotation. Consider, for example, the political literature that appears under such headlines as "Constitutional History" or the "History of Constitutional Government." Here Constitution means not abstract philosophic principles of Government, but concrete political phenomena, that is, political facts. Our constitutional historians do not as a rule deal directly with the ultimate principles of government; but they are concerned rather with their progressive phenomenal manifestations in the assembly, the court, the office, the caucus, the convention, the platform, the election, and the like. Thus Constitutional History is simply a record of concrete political facts. It is, however, in the literature of Jurisprudence that the term "Constitution" is used in accordance with an exact definition. Constitutional Law, or the Law of the Constitution, means a very definite thing to the Jurist. It stands (at least in America) for a written instrument which is looked upon "as the absolute rule of action and decision for all departments and officers of government . . . and in opposition to which any act or regulation of any such department or officer, or even of the people themselves, will be altogether void." In this sense a Constitution is a code of that which is fundamental in the Law. To be sure, this code or text, as everybody knows, does not provide for all that is fundamental in government. It usually contains much that is temporary and unimportant. But to the American Jurist all that finds expression in the written document labeled "Constitution" is Constitutional Law. Accordingly, he defines the Constitution as the written or codified body of fundamental law in accordance with which government is instituted and administered. It is as a code or text of fundamental law that the word "Constitution" is used in the title of these pages. This is not a philosophical discussion of the ultimate principles of our government, nor an outline of our constitutional history, but simply a narrative touching the written texts or codes that have served the people of Iowa as fundamental law during the past sixty years. III THE CONSTITUTION MAKERS Constitutions are not made; they grow. This thought has become a commonplace in current political literature. And yet the growth of which men speak with such assurance is directed, that is, determined by the ideals of the people. Members of constituent assemblies and constitutional conventions neither manufacture nor grow Constitutions--they simply formulate current political morality. It is in the social mind back of the convention, back of the government, and back of the Law that the ideals of human right and justice are conceived, born, and evolved. A Constitution is a social product. It is the embodiment of popular ideals. And so the real makers of the Constitutions of Iowa were not the men who first in 1844, then in 1846, and then again in 1857 assembled in the Old Stone Capitol on the banks of the Iowa River. The true "Fathers" were the people who, in those early times from 1830 to 1860, took possession of the fields and forests and founded a new Commonwealth. They were the pioneers, the frontiersmen, the squatters--the pathfinders in our political history. Aye, they were the real makers of our fundamental law. The first of the Iowa pioneers crossed the Mississippi in the early thirties. They were preceded by the bold explorer and the intrepid fur-trader, who in their day dared much, endured much, and through the wildernesses lighted the way for a westward-moving civilization. Scarcely had their camp-fires gone out when the pioneer appeared with ax and ox and plow. He came to cultivate the soil and establish a home--he came to stay. The rapidity with which the pioneer population of Iowa increased after the Black-Hawk war was phenomenal. It grew literally by leaps and bounds. Men came in from all parts of the Union--from the North-west, from the East, from the South, and from the South-east. They came from Maine and Massachusetts, from New York and Pennsylvania, from Virginia and the Carolinas, from Georgia, Kentucky and Tennessee, and from the newer States of Ohio and Indiana. It is said that whole neighborhoods came over from Illinois. In 1835 Lieutenant Albert Lea thought that the population had reached at least sixteen thousand souls. But the census reports give a more modest number--ten thousand five hundred. When the Territory of Iowa was established in 1838 there were within its limits twenty-two thousand eight hundred and fifty-nine people. Eight years later, when the Commonwealth was admitted into the Union, this number had increased to one hundred and two thousand three hundred and eighty-eight. Thus in less than a score of years the pioneers had founded a new Empire west of the Mississippi. And such an Empire! A land of inexhaustible fertility! A hundred thousand pioneers with energy, courage, and perseverance scarcely less exhaustible than the soil they cultivated! In the location of a home the pioneer was usually discriminating. His was not a chance "squatting" here or there on the prairie or among the trees. The necessities--water and fuel--led him as a rule to settle near a stream or river, and never far from timber. The pioneers settled in groups. One, two, three, or more families constituted the original nucleus of such groups. The groups were known as "communities" or "neighborhoods." They were the original social and political units out of the integration of which the Commonwealth was later formed. But the vital facts touching the pioneers of Iowa are not of migration and settlement. In political and constitutional evolution the emphasis rests rather upon the facts of character. What the pioneers were is vastly more important than where they came from, or when and where and how they settled; for all law and government rests upon the character of the people, Constitutions being simply the formulated expressions of political Ethics. It is in this broad catholic sense that the ideals of pioneer character became the determining factors in Iowa's political evolution and the pioneers themselves the real makers of our fundamental law. Two opinions have been expressed respecting the early settlers of Iowa. Calhoun stated on the floor of Congress that he had been informed that "the Iowa country had been seized upon by a lawless body of armed men." Clay had received information of the same nature. And about the same time Senator Ewing (from Ohio) declared that he would not object to giving each rascal who crossed the Mississippi one thousand dollars in order to get rid of him. Nor was the view expressed by these statesmen uncommon in that day. It was entertained by a very considerable number of men throughout the East and South, who looked upon the pioneers in general as renegades and vagabonds forming a "lawless rabble" on the outskirts of civilization. To them the first settlers were "lawless intruders" on the public domain, "land robbers," "fugitives from justice," and "idle and profligate characters." Squatters, they held, were those "who had gone beyond the settlement and were wholly reckless of the laws either of God or man." Nay more, they were "non-consumers of the country, performing no duties either civil or military." In short, gentlemen who had never even visited the Iowa frontier talked glibly about frontier lawlessness, anarchy, and crime. Such wholesale defamation when applied to the early settlers of Iowa ought not to be dismissed with a shrug. The men who made these harsh charges were doubtless honest and sincere. But were they mistaken? All testimony based upon direct personal observation is overwhelmingly against the opinions they expressed. Lieutenant Albert Lea who had spent several years in the Iowa District writes in 1836 that "the character of this population is such as is rarely to be found in our newly acquired territories. With very few exceptions there is not a more orderly, industrious, active, painstaking population, west of the Alleghanies, than is this of the Iowa District. Those who have used the name 'squatters' with the idea of idleness and recklessness, would be quite surprised to see the systematic manner in which everything is here conducted . . . . It is a matter of surprise that about the Mining Region there should be so little of the recklessness that is usual in that sort of life." In 1838 Peter H. Engle, writing from Dubuque, says: "The people are all squatters; but he who supposes that settlers . . . . who are now building upon, fencing and cultivating the lands of the government are lawless depredators, devoid of the sense of moral honesty, or that they are not in every sense as estimable citizens, with as much intelligence, regard for law and social order, for public justice and private rights . . . . as the farmers and yeomen of New York and Pennsylvania, . . . . has been led astray by vague and unfounded notions, or by positively false information." The statements of Lea and Engle fairly represent the views of those who from actual personal contact were familiar with the life and character of the pioneers. We may then rest assured that the squatters of Iowa were as a class neither idle, nor ignorant, nor vicious. They were representative pioneers of their day, than whom, Benton declared, "there was not a better population on the face of the earth." They were of the best blood and ranked as the best sons of the whole country. They were young, strong, and energetic men--hardy, courageous, and adventurous. Caring little for the dangers of the frontier, they extended civilization and reclaimed for the industry of the world vast prairies and forests and deserts. They made roads, built bridges and mills, cleared the forests, broke the prairies, erected houses and barns, and defended the settled country against hostile Indians. They were distinguished especially for their general intelligence, their hospitality, their independence and bold enterprise. They had schools and schoolhouses, erected churches, and observed the sabbath. A law abiding people, the pioneers made laws and obeyed them. They were loyal American citizens and strongly attached to the National government. The pioneers were religious, but not ecclesiastical. They lived in the open and looked upon the relations of man to nature with an open mind. To be sure their thoughts were more on "getting along" in this world than upon the "immortal crown" of the Puritan. And yet in the silent forest, in the broad prairie, in the deep blue sky, in the sentinels of the night, in the sunshine and in the storm, in the rosy dawn, in the golden sunset, and in the daily trials and battles of frontier life, they too must have seen and felt the Infinite. Nor is it a matter of surprise that the pioneers of Iowa possessed the elements of character above attributed to them. In the first place, only strong and independent souls ventured to the frontier. A weaker class could not have hoped to endure the toils, the labors, the pains, and withal the loneliness of pioneer life; for the hardest and at the same time the most significant battles of the 19th century were fought with axes and plows in the winning of the West. The frontier called for men with large capacity for adaptation--men with flexible and dynamic natures. Especially did it require men who could break with the past, forget traditions, and easily discard inherited political and social ideas. The key to the character of the pioneer is the law of the adaptation of life to environment. The pioneers of Iowa were what they were largely because the conditions of frontier life made them such. They were sincere because their environment called for an honest attitude. Having left the comforts of their old homes, traveled hundreds and thousands of miles, entered the wilderness, and endured the privations of the frontier, they were serious-minded. They came for a purpose and, therefore, were always _about_, doing something. Even to this day, their ideals of thrift and "push" and frugality pervade the Commonwealth. And so the strong external factors of the West brought into American civilization elements distinctively American--liberal ideas and democratic ideals. The broad rich prairies of Iowa and Illinois seem to have broadened men's views and fertilized their ideas. Said Stephen A. Douglas: "I found my mind liberalized and my opinions enlarged when I got out on these broad prairies, with only the heavens to bound my vision, instead of having them circumscribed by the narrow ridges that surrounded the valley [in Vermont] where I was born." Speaking to an Iowa audience, Governor Kirkwood once said: "We are rearing the typical Americans, the Western Yankee if you choose to call him so, the man of grit, the man of nerve, the man of broad and liberal views, the man of tolerance of opinion, the man of energy, the man who will some day dominate this empire of ours." How prophetic! Nowhere did the West exert a more marked influence than in the domain of Politics. It freed men from traditions. It gave them a new and a more progressive view of political life. Henceforth they turned with impatience from historical arguments and legal theories to a philosophy of expediency. Government, they concluded, was after all a relative affair. "Claim Rights" were more important to the pioneer of Iowa than "States Rights." The Nation was endeared to him; and he freely gave his first allegiance to the government that sold him land for $1.25 an acre. He was always _for the Union_, so that in after years men said of the Commonwealth he founded: "Her affections, like the rivers of her borders, flow to an inseparable Union." But above all the frontier was a great leveler. The conditions of life there were such as to make men plain, common, unpretentious--genuine. The frontier fostered the sympathetic attitude. It made men really democratic and in matters political led to the three-fold ideal of Equality which constitutes the essence of American Democracy in the 19th century, namely: Equality before the Law, Equality in the Law, Equality in making the Law. The pioneer of the West may not have originated these ideals. The first, Equality before the Law, is claimed emphatically as the contribution of the Puritan. But the vitalizing of these ideals--this came from the frontier, as the great contribution of the pioneer. IV SQUATTER CONSTITUTIONS It may seem strange to class the customs of the pioneers among the early laws of Iowa. But to refer to the "Resolutions" and "By-Laws" of the squatters as political Constitutions is more than strange; it is unorthodox. At the same time History teaches that in the evolution of political institutions, customs precede statutes; written laws follow unwritten conventions; the legal is the outgrowth of the extra-legal; and constitutional government is developed out of extra-constitutional government. One need not search the records of antiquity nor decipher the monuments for illustrations of these truths; for in the early political history of Iowa there is a recurrence of the process of institutional evolution including the stage of customary law. Here in our own annals one may read plainly writ the extra-legal origin of laws and constitutional government. Absence of legislative statutes and administrative ordinances on the frontier did not mean anarchy and disorder. The early settlers of Iowa were literally, and in that good old Anglo-Saxon sense, "lawful men of the neighborhood," who from the beginning observed the usages and customs of the community. Well and truly did they observe the customs relative to the making and holding of claims. And as occasion demanded they codified these customs and usages into "Constitutions," "Resolutions," and "By-Laws." Crude, fragmentary, and extra-legal as were their codes, they nevertheless stand as the first written Constitutions in the history of the Commonwealth. They were the fundamental laws of the pioneers, or, better still, they were Squatter Constitutions. The Squatter Constitutions of Iowa, since they were a distinctive product of frontier life, are understood and their significance appreciated only when interpreted through the conditions of Western life and character. It was through cession and purchase that the United States came into possession of the vast public domain of which the fertile farming fields of Iowa formed a part. Title to the land vested absolutely in the Government of the United States. But the right of the Indians to occupy the country was not disputed. Until such right had been extinguished by formal agreement, entered into between the United States and the Indians, no white citizen was competent to make legal settlement therein. As early as 1785 Congress provided that no settlement should be made on any part of the public domain until the Indian title thereto had been extinguished and the land surveyed. Again, in 1807, Congress provided: "That if any person or persons shall, after the passing of this act, take possession of, or make a settlement on any lands ceded or secured to the United States by any treaty made with a foreign nation, or by a cession of any State to the United States, which lands shall not have been previously sold, ceded, or leased by the United States, or the claim to which lands, by such person or persons, shall not have been previously recognized and confirmed by the United States; or if any person or persons shall cause such lands to be thus occupied, taken possession of, or settled; or shall survey, or attempt to survey, or cause to be surveyed, any such lands; or designate any boundaries thereon, by marking trees, or otherwise, until thereto duly authorized by law; such offender or offenders shall forfeit all his or their right, title, and claim, if any he hath, or they have, of whatsoever nature or kind the same shall or may be to the lands aforesaid, which he or they shall have taken possession of, or settled, or caused to be occupied, taken possession of, or settled, or which he or they shall have surveyed, or attempt to survey, or the boundaries thereof he or they shall have designated, or cause to be designated, by marking trees or otherwise. And it shall moreover be lawful for the President of the United States to direct the marshal, or the officer acting as marshal, in the manner hereinafter directed, and also to take such other measures, and to employ such military force as he may judge necessary and proper, to remove from land ceded, or secured to the United States, by treaty, or cession, as aforesaid, any person or persons who shall hereafter take possession of the same, or make, or attempt to make a settlement thereon, until thereunto authorized by law. And every right, title, or claim forfeited under this act shall be taken and deemed to be vested in the United States, without any other or further proceedings." In March, 1833, the act of 1807 was revived with special reference to the Iowa country to which the Indian title was, in accordance with the Black-Hawk treaty of 1832, to be extinguished in June. It was made "lawful for the President of the United States to direct the Indian agents at Prairie du Chien and Rock Island, or either of them, when offenses against the said act shall be committed on lands recently acquired by treaty from the Sac and Fox Indians, to execute and perform all the duties required by the said act to be performed by the marshals in such mode as to give full effect to the said act, in and over the lands acquired as aforesaid." Thus it is plain that the early settlers of Iowa had no legal right to advance beyond the surveyed country, mark off claims, and occupy and cultivate lands which had not been surveyed and to which the United States had not issued a warrant, patent, or certificate of purchase. But the pioneers on their way to the trans-Mississippi prairies did not pause to read the United States Statutes at Large. They outran the public surveyors. They ignored the act of 1807. And it is doubtful if they ever heard of the act of March 2, 1833. Some were bold enough to cross the Mississippi and put in crops even before the Indian title had expired; some squatted on unsurveyed lands; and others, late comers, settled on surveyed territory. The Government made some successful effort to keep them off Indian soil. But whenever and wherever the Indian title had been extinguished, there the hardy pioneers of Iowa pressed forward determining for themselves and in their own way the bounds and limits of the frontier. Hundreds and thousands of claims were thus located! Hundreds and thousands of farms were thus formed! Hundreds and thousands of homesteads were thus established! Hundreds and thousands of improvements were thus begun! Hundreds and thousands of settlers from all parts of the Union thus "squatted" on the National commons! All without the least vestige of legal right or title! In 1836, when the surveys were first begun, over 10,000 of these squatters had settled in the Iowa country. It was not until 1838 that the first of the public land sales were held at Dubuque and Burlington. These marginal or frontier settlers (squatters, as they were called) were beyond the pale of constitutional government. No statute of Congress protected them in their rights to the claims they had staked out and the improvements they had made. In _law_ they were trespassers; in _fact_ they were honest farmers. Now, it was to meet the peculiar conditions of frontier life, and especially to secure themselves in what they were pleased to call their rights in making and holding claims, that the pioneers of Iowa established land clubs or claim associations. Nearly every community in early Iowa had its local club or association. It is impossible to give definite figures, but it is safe to say that over one hundred of these extra-legal organizations existed in Territorial Iowa. Some, like the Claim Club of Fort Dodge, were organized and flourished after the Commonwealth had been admitted into the Union. In the "Recollections" and "Reminiscences" of pioneers many references are made to these early land clubs or claim associations, and Constitutions, By-laws, or Resolutions are sometimes reproduced therewith in whole or in part. But _complete and adequate manuscript records_ of but two Iowa organizations have thus far come to light. The "Constitution and Records of the Claim Association of Johnson County," preserved by the Iowa State Historical Society, were published in full in 1894. The materials of this now famous manuscript, which are clear and complete, were arranged as follows: I. Constitution and Laws; II. Minutes of Meetings; III. Recorded Claims; IV. Recorded Quit Claim Deeds. The Constitution of the Johnson County Association is perhaps the most elaborate Squatter Constitution in the annals of early Iowa. It was adopted March 9th, 1839, and consists of three articles, twenty-three sections, and over twenty-five hundred words. Article I. fixes the name of the Association, and declares that "the officers of this association shall be one President, one Vice President, One Clerk or Recorder of claims, deeds or transfers of Claims, seven Judges or adjusters of claims or boundary . . . and two Marshalls." All of the officers were elected annually. Article II. relates to "sallerys." It provides that "the Clerk or Recorder shall receive Twenty-five cents for recording each and everry claim, and fifty cents for everry deed or conveyance . . . . and Twelve & a half cents for the privalege of examining his Books." The Judges and Marshals were allowed one dollar and fifty cents each for every day spent in the discharge of the duties of their respective offices. Article III. contains ten sections bearing upon a variety of subjects. Section 1 indicates in detail how claims are to be made and recorded and the boundaries thereof designated. No person was allowed to hold more than four hundred and eighty acres. Section 2 provides that "any white male person over the age of eighteen can become a member of this association by signing the laws rules and regulations governing the association," that "actual citizens of the County over the age of seventeen who are acting for themselves and dependent on their own exertions, and labour, for a lively hood, and whose parents doe not reside within the limits of the Territory can become members of this association and entitled to all the privalages of members," but that "no member of the association shall have the privalege of voting on a question to change any article of the constitution or laws of the association unless he is a resident citizen of the county and a claimholder, nor shall any member be entitled to vote for officers of this association unless they are claim holders." The same section provides that "any law or article of the constitution of this association may be altered at the semianual meetings and at no other meetings provided, however, that three fifths of the members presant who are resident citizens of the county and actual claim holders shall be in favour of such change or amendment, _except that section fixing the quantity of land that everry member is entitled to hold by claim and that section shall remain unaltered_." By the same article semi-annual meetings of the Association are provided for in section 3. Section 5 declares that "all persons who have resided within the limits of the County for Two months, shall be recognized and considered as citizens of the County." Another section stipulates that "members of the association who are not citizens of the County shall be required in making claims to expend in improvements on each claim he or they may have made or may make the amount of fifty Dollars within six months of the date of making such claim or claims and fifty Dollars every six months there after until such person or persons becomes citizens of the county or forfeit the same." The 10th section relates to the procedure of the Claim Court. Finally, in section 11 the members pledge their "honours" for the "faithful observance and mantanance" of the Constitution by subscribing their names to the written document. In addition to the Constitution, Resolutions were, from time to time, adopted with the force of laws. It is here that the real spirit and purpose of the pioneer squatters is best expressed. With characteristic frankness they resolved to "discountenance any attempts on the part of any and every person to intrude in any way upon the rightful claims of another," since "the presumption is that a person thus attempting to take away a portion of the hard earnings of the enterprising and industrious setler is dishonest & no Gentlemen." That they insisted upon equity rather than upon refined technicalities in the administration of their law is seen in the following: "Resolved that to avoid difficulty growing out of the circumstance of persons extending their improvements accidentaly on the claims of others before the Lines were run thereby giving the first setlr an opportunity or advantage of Preemption over the rightful owner that any person who hold such advantages shall immediately relinquish all claim thereto to the proper owner and any one refusing so to do shall forfeit all claim to the right of protection of the association." For the speculator who sometimes attended the land sales the squatters had little respect; so they "Resolved that for the purpose of garding our rights against the speculator we hereby pledge ourselves to stand by each other and to remain on the ground until all sales are over if it becomes necessary in order that each and every setler may be secured in the claim or claims to which he is justly entitled by the Laws of this association." And remarkable as it may seem, the same protection which was pledged "before the sale" was guaranteed to "all such members as may be unable to enter their claims at the sale after such sale and until the same may be entered by them." The following are typical records of claims as recorded in the claim book of the Johnson County Association: "The following is a decription of my claim made about the 15 of January 1838, that I wish recorded. Situated on Rapid Creek About Two Miles above Felkners & Myers mill Johnson County Iowa Territory Commencing about 20 Rods South of Rapid Creek at a double white Oak Tree Blazed & 3 notches on one side and 4 on the other and then running West three fourths of a mile to a double white Oak on the east side of a small branch Blazed and marked as before described then running North about three fourths of a mile to a white Oak tree Blazed and marked as before then running East about three fourths of a mile to a small Bur Oak tree on the west side of Rapid Creek marked and blazed as before mentioned then running South crossing Rapid Creek to the place of beginning March 20th 1839. GRIFFITH SHRECK" "The following claim I purchased of John Kight in February 1839, & I wish it registered to me as a claim made as I have not got his deed with me the same being the S W qr of S 14, & that part of the S 1/2 of S 15, that Lyes East of the Iowa River--T 79 N. R. 6 W. July 3rd 1840 handed in July 3, 1840 ROBERT LUCAS" An illustrative quitclaim deed from the same records reads as follows: "This bargen made and entered into by the following parties Viz this day I James Williams has bargened and sold to Philo Costly a certain claim lying on the E side of Rapid Creek boundrys of said claim as follows commencing at a white Oak tree standing about 80 Rods below the upper forks of Rapid Creek thence running south 1/2 mile thence E 1 mile to a stake standing on the Prairie near 2 Trees. thence N 1/2 mile to a stake thence W. 1 mile to the starting place--I the said Williams agree and bind myself to defend all rights & claims excepting the claim of the general Government and also singular all rights claims & Interests to said claim for and in concideration of the sum of one hundred Dollars the receipt thereof I here in acknowledge said Williams agrees to put up a House and finish Except putting up the Chimney & dobing and also said Williams is to Haul out Eight or Ten hundred rails all included for the receipt above mentioned. Receipt. Johnson County. I. T. January 25, 1841 JAMES WILLIAMS [SEAL] Witness CORNELIUS HENYAN Handed in Februrary 3rd 1841" The manuscript records of the Claim Club of Fort Dodge, discovered several years ago among the papers of Governor Carpenter, are now carefully preserved by the Historical Department at Des Moines. From these records it appears that the first meeting of the Claim Club of Fort Dodge was held on the 22d day of July, 1854. At this meeting a committee was chosen to draft a "code of laws," and the following motions were passed: "First. That 320 Acres shall constitute a claim. 2d. A claim may be held one month by sticking stakes and after that 10 dollars monthly improvements is necessary in order to hold a claim. Also that a cabin 16 x 16 feet shingled and enclosed so as to live in is valued at $30.00." Of the same date are the following By-laws or Resolutions: "Whereas the land in this vicinity is not in market and may not be soon, We, the undersigned claimants deem it necessary in order to secure our lands to form ourselves into a Club for the purpose of assisting each other in holding claims, do, hereby form and adopt the following byelaws: _Resolved_ 1st. That every person that is an Actual claimant is entitled to hold 320 Acres of land until such time as it comes into market. _Resolved_ 2d. That any person who lives on their claim or is continually improving the same is an actual Claimant. _Resolved_ 3d. That stakeing out a claim and entering the same on our Claim Book shall hold for one month. _Resolved_ 4th. That $10, Monthly shall hold a claim thereafter. _Resolved_ 5th. That no mans claim is valid unless he is an actual settler here, or, has a family and has gone after them, in which case he can have one month to go and back. _Resolved_ 6th. That any person not living up to the requirements of these laws shall forfeit their claim, and, any Actual Settler who has no claim may settle on the same. _Resolved_ 7th. That any person going on anothers claim that is valid, shall be visited by a Com. of 3 from our club and informed of the facts & and if such person persist in their pursuits regardless of the Com or claimant they shall be put off the Claim by this Club. _Resolved_ 8th. That the boundaries of these laws shall be 12 miles each way from this place. _Resolved_ 9th. That this club shall hold its meetings at least once in each month. _Resolved_ 10th. That the officers of this club shall consist of a Chairman & Secty. _Resolved_ 11th. That the duty of the Chairman is to call to order, put all questions, give the casting vote when there is a tie, &c. &c. _Resolved_ 12th. That the duty of the sec. is to keep the minutes of the meetings and read the same at the opening of each meeting and have the book and papers in his charge. _Resolved_ 13th. That any or all of the bye laws may be altered or abolished by a majority vote at a regular meeting." On the offense of "claim-jumping" the records of the Fort Dodge Club contain this suggestive entry: "On Motion of Wm. R. Miller that if any member of this Club finds his or any of his friends Clames has been Jumpt that they inform this Club of the fact and that this Club forthwith put them off of said clame without trobling the Sivel Law." In the _Iowa News_ of March 28, 1838, was printed "The Constitution of the Citizens of the North Fork of the Maquoketa, made and adopted this 17th day of February, A. D. 1838." It is a typical Squatter Constitution of the Territorial period. "Whereas, conflicting claims have arisen between some of the settlers residing upon Government Lands, and whereas many individuals have much larger claims than are necessary for common farming purposes, Therefore, we, the subscribers, to preserve order, peace and harmony, deem it expedient to form an association, and adopt some certain rules, by which those difficulties may be settled, and others prevented. Therefore, we do covenant, and agree to adopt and support the following articles. Art. 1. This association shall be called the North Fork of Maquoketa Association, for the mutual protection of settlers' claims on Government Lands. Art. 2. That there shall be elected by the subscribers, a President, whose duty it shall be to call meetings to order, and preside as Chairman, and to receive complaint and to appoint a Committee of three from the Great Committee, to settle all difficulties that arise from conflicting claims, and also to fill vacancies. Art. 3. There shall be a Vice President elected, whose duty it shall be to fill the office of President in his absence. Art. 4. There shall be chosen a Secretary, whose duty it shall be to keep a correct Journal of the acts and proceedings of each and every meeting, and register all claims in a book kept by him for that purpose, who shall receive the sum of 25 cents for the registering of each and every claim. Art. 5. There shall be elected a committee of nine men, to be called the Grand Committee. Art. 6. No settler shall be entitled to hold more than three quarter sections of land. Each settler shall give in the numbers of the quarter sections that he may claim. Each and every settler shall make an improvement on his, her, or their claim, sufficient to show that the same is claimed, previous to having the same recorded. Art. 7. All minors under sixteen shall not be considered as holding claims, either by themselves, parents, or otherwise. Art. 8. The Secretary, at the request of eight subscribers, shall call a meeting of the settlers, by advertising the same in three different places, not less than ten days previous to the meeting. Art. 9. No person shall have any attention paid to his, her, or their complaint until they first subscribe to this Constitution. Art. 10. All committees that shall sit or act under this constitution, shall determine in their decision and declare which party shall pay the costs, and each declaration shall be binding and be collected according to the laws of this Territory. Art. 11. When complaints shall be made to the President, he shall immediately notify the sitting committee of three to meet at some convenient place. Then if said committee be satisfied that the opposing party has been timely notified, shall then proceed to investigate and try the case in dispute, receive evidence, and give their decision according to justice and equity, which decision shall be final: Provided, always, That either party considering injustice has been done, shall have a right to appeal to the Grand Committee, together with the President, who shall investigate the same, and shall give their decision in writing, from which there shall be no appeal. All appeals shall be made within ten days, or forever excluded. Art. 12. There shall be held an annual meeting on the 1st Monday of November for the election of officers and committees. Art. 13. The fees of each committee man with the President, shall not exceed one dollar per day. Art. 14. This constitution may be altered and amended by a vote of two thirds of the members. Art. 15. All committees made under this constitution shall be the judges of its meaning and spirit, and the resolutions of its meeting shall be governed according to their decisions. Art. 16. All persons not settlers, having claims not settled before the 1st of May, 1838, shall be forfeited." A hundred pages could easily be devoted to this interesting phase of our political history, but the details already given will suffice to indicate the nature, scope, and purpose of the Squatter Constitutions of Iowa. Their influence is clearly seen in a fourfold direction. First, they made it possible and practicable for the settlers to go upon the public domain (surveyed or unsurveyed) and establish homes without the immediate inconvenience of paying for the land. Secondly, they secured to the bona fide settlers the right to make improvements on the public lands and to dispose of the same for a reasonable consideration, or to purchase their improved land from the Government at the minimum price of $1.25 an acre. Thirdly, they afforded bona fide settlers adequate protection in the peaceable possession and enjoyment of their homes without fear of being molested or ousted, either by the Government, or the newcomer, or the land speculator, until the land was offered for sale, or opened for entry, or until they were able to enter or purchase the same for themselves and their families. Fourthly, they fostered natural Justice, Equality, and Democracy on the frontier (_a_) by establishing order under a Government founded upon the wishes of the people and in harmony with the peculiar conditions, social and economic, of the community, (_b_) by giving security alike to all bona fide settlers, (_c_) by limiting the amount of land any one settler could rightfully hold, (_d_) by requiring all disputes to be settled in regularly constituted courts, and (_e_) by conducting all public affairs in and through mass meetings, with the full knowledge and consent of all the people. In their Constitutions and Resolutions the squatters suggested, and in a measure definitely determined, the manner of disposing of the public lands. The principles of the most important legislation of Congress relative to the public domain came from the frontier. A comparison of the customs of the squatters with the provisions of the pre-emption and homestead acts reveals the truth that the latter are largely compilations of the former. These American principles of agrarian polity are products of frontier experience. One is even justified in suggesting that herein we have, perhaps, come across the origin of the American principle of homestead exemptions. Is it not reasonable to suggest that the emphasis which frontier life and customs placed upon the importance and value of the homestead gave birth to the laws that are "based upon the idea that as a matter of public policy for the promotion of the property of the State and to render independent and above want each citizen of the Government, it is proper he should have a home--a homestead--where his family may be sheltered and live beyond the reach of financial misfortune?" The Squatter Constitutions stand for the beginnings of local political institutions in Iowa. They were the fundamental law of the first governments of the pioneers. They were the fullest embodiment of the theory of "Squatter Sovereignty." They were, indeed, fountains of that spirit of Western Democracy which permeated the social and political life of America during the 19th century. But above all they expressed and, in places and under conditions where temptations to recklessness and lawlessness were greatest, they effectively upheld the foremost civilizing principle of Anglo-Saxon polity--the Rule of Law. V THE TERRITORY OF WISCONSIN The year one thousand eight hundred and thirty-six is memorable in the constitutional annals of Iowa, since it marks the beginning of the Territorial epoch and the advent of our first general code or text of fundamental law. To be sure, the Iowa country had had a certain constitutional status ever since the acquisition of the Province of Louisiana in 1803. In 1804, it formed a part of the District of Louisiana, which was placed. under the jurisdiction of the Governor and Judges of the Territory of Indiana; in 1805, it remained a part of that district known henceforth as the Territory of Louisiana; in 1812, it was included within the newly created Territory of Missouri; in 1821, it was reserved for freedom by the Missouri Compromise; and finally, after being without a local constitutional status for more than thirteen years, it was "attached to, and made a part of, the territory of Michigan" for "the purpose of temporary government." Nevertheless, it would be sheer antiquarianism to catalogue the treaty and conventions of 1803 and the several acts of Congress establishing the District of Louisiana, the Territory of Louisiana, the Territory of Missouri, and the Territory of Michigan as Constitutions of Iowa. Furthermore, a Constitution is the fundamental law of a _people_, not of a _geographical area_; and since the Iowa country was practically uninhabited prior to 1830, the earlier Territorial governments, which have been mentioned, had for Iowa only a nominal political significance. This is not to deny that Iowa has a history prior to 1830: it simply points out that this earlier history is largely a record of changes in subordinate jurisdiction over a geographical area, and in no sense the annals of a political society. Even after the permanent settlement of the Iowa country in the early thirties and its union with the Territory of Michigan in 1834, constitutional government west of the Mississippi continued to be more nominal than real. This is true notwithstanding the fact that the archives of the Territory of Michigan show that the Governor and the Legislative Council made a serious attempt to provide for and put into operation local constitutional government. In his message of September 1, 1834, addressed to the Legislative Council, Governor Mason referred to the inhabitants as "an intelligent, industrious and enterprising people," who, being "without the limits of any regularly organized government, depend alone upon their own virtue, intelligence and good sense as a guaranty of their mutual and individual rights and interests." He suggested and urged "the immediate organization for them of one or two counties with one or more townships in each county." The suggestions of the Governor were referred to the committee on the Judiciary, and incorporated into "An Act to lay off and organize counties west of the Mississippi River." This act, which was approved September 6th, to go into effect October 1st, organized the Iowa country to which the Indian title had been extinguished in June, 1833, into the counties of Dubuque and Demoine. It also provided that each county should constitute a township, and that the first election for township officers should take place on the first Monday of November, 1834. The laws operative in the county of Iowa, and not locally inapplicable, were to have full force in the country west of the Mississippi. Furthermore, the archives show that the offices of the newly created counties were duly filled by the Governor of the Territory of Michigan "by and with the consent of the Legislative Council." Letters and petitions addressed to the Governor are evidence that the people did not hesitate to recommend candidates or ask for removals. In Dubuque County they forced the resignation of the Chief Justice of the County Court and secured the appointment of a candidate of their own choice. And when a vacancy occurred in the office of Sheriff, the inhabitants of the same County, thinking that "the best method of recommending a suitable person for that office was to elect one at their annual township meeting," voted for Mr. David Gillilan as their choice. The Clerk of the County Court, who was authorized to notify the Governor of the results of the election, expressed the "hope that a commission will be prepared and sent as early as practicable." The records show that Mr. Gillilan was subsequently appointed by the Governor. So much for the public archives of the Territory of Michigan respecting the political status of the Iowa country. In a memorial to Congress drawn up and adopted by a delegate convention of of the people west of the Mississippi assembled at Burlington in November, 1837, this statement is made in reference to the two years from 1834 to 1836: "During the whole of this time the whole country, sufficient of itself for a respectable State, was included in the counties Dubuque and Demoine. In each of these two counties there were holden, during the said term of two years, two terms of a county court, as the only source of judicial relief up to the passage of the act of Congress creating the Territory of Wisconsin." The Legislative Council of the Michigan Territory, in a memorial which bears the date of March 1, 1836, went on record to this effect: "According to the decision of our Federal Court, the population west of the Mississippi are not within its jurisdiction, a decision which is presumed to be in accordance with the delegated power of the court and the acknowledged laws of the land; but that ten or twelve thousand free-men, citizens of the United States, living in its territory, should be unprotected in their lives and property, by its courts of civil and criminal jurisdiction, is an anomaly unparalleled in the annals of republican legislation. The immediate attention of Congress to this subject is of vital importance to the people west of the Mississippi." On the floor of Congress, Mr. Patton of Virginia "adverted to the peculiar situation of the inhabitants of that Territory [the Territory which was soon afterwards organized as Wisconsin] they being without government and without laws." This was in April, 1836. On the same day Mr. George W. Jones, the delegate from Michigan, declared that the people of western Wisconsin "are now, and have ever been, without the pale of judicial tribunals." He "stated that he did not know of a single set of the laws of the United States within the bounds of the contemplated Territory." The position of the Iowa country for several months immediately preceding the organization of the Territory of Wisconsin was indeed peculiar. In the eastern part of what had been the Territory of Michigan the people had framed and adopted a State Constitution. As early as October, 1835, they elected State officers. But on account of a dispute with Ohio over boundary lines, Congress was in no hurry to recognize the new State. Then for a time there were two governments--the Government of the State of Michigan and the Government of the Territory of Michigan--each claiming to be the only rightful and legitimate authority. It was not until January, 1837, that the existence of Michigan as a State was recognized at Washington. Lieutenant Albert M. Lea, a United States army officer, who had spent some time in the country west of the Mississippi did not fail to observe the anomalous condition of the people. Writing early in 1836, he said: "It is a matter of some doubt, in fact, whether there be any law at all among these people; but this question will soon be put to rest by the organization of the Territory of Wisconsin within which the Iowa District is by law included." But a general conclusion concerning the actual political status of the Iowa country prior to the organization of the Territory of Wisconsin is no longer doubtful when to these documentary evidences are added the sweeping testimony of the early squatters who declare that the only government and laws they knew or cared anything about in those days were the organization and rules of the claim club. It is substantially correct to say; (1) that the Territorial epoch in our history dates from the fourth day of July, 1836, when Wisconsin was constituted "a separate Territory," for the purposes of temporary government, and (2) that our first code or text of fundamental law, that is to say, the first Constitution of Iowa was "An Act establishing the Territorial Government of Wisconsin." As regards this conclusion two criticisms are anticipated. First, it will be said that since the Territory of Iowa was organized in 1838, the Territorial epoch in our history could not have begun in 1836. Secondly, it will be said that an act of Congress providing for and establishing a Territory is not a Constitution. The answer to the first criticism lies in the fact that the Iowa country was not an outlying district attached to the Territory of Wisconsin, but really formed a constituent part thereof. The area of Wisconsin Territory west of the Mississippi was far more extensive than the area of the same Territory east of the river. In population the two areas were nearly equal; but the west tended to increase more rapidly than the east. The importance of the west is further evidenced by the removal of the Capital after the first session of the Legislative Assembly from Belmont in eastern Wisconsin to Burlington in western Wisconsin. The constitutional history of Wisconsin up to the division of the Territory in 1838 is, therefore, clearly a part of the Territorial history of Iowa. The assignment of the old name "Wisconsin" to the country east of the Mississippi and of the new name "Iowa" to the country west of that river in 1838, when the Territory of Wisconsin was divided, did _not give rise_ to Territorial government among our people. The act of Congress of June 12, 1838, provided for the division of an existing Territory and the _continuation_ of Territorial government in the western part thereof under the name Iowa. When, however, all this is conceded, the propriety of referring to the Organic Act of a Territory as a Constitution is questioned. It is true that the act establishing the Territorial government of Wisconsin was not drawn up by the people of the Territory. It was not even submitted to them for ratification. Handed down to them by Congress, in the form of an ordinary statute, it was a pure product of legislation. It did not even have the label "Constitution," or "Fundamental Compact," or "Organic Law." Nevertheless, this instrument was a veritable Constitution, since it was a written body of fundamental law in accordance with which the government of the Territory was instituted and administered. It was supreme, serving as the absolute rule of action for all departments and officers of the Territorial government. The courts always took this view of the Organic Act, and refused to enforce acts which were clearly in opposition to its provisions. VI THE TERRITORY OF IOWA In the year 1836 there was printed and published at Philadelphia a small book bearing on its title-page these words: NOTES ON WISCONSIN TERRITORY, WITH A MAP. BY LIEUTENANT ALBERT M. LEA, UNITED STATES DRAGOONS. PHILADELPHIA. HENRY S. TANNER--SHAKESPEAR BUILDING. 1836. The significance of this little volume lies in the fact that through it the country destined to give birth to "the only free child of the Missouri Compromise" was christened IOWA. Lieutenant Lea was familiar with the country described in his "Notes." He had traveled through it, had seen its beautiful prairies, had met its inhabitants face to face, and had enjoyed their frontier hospitality. He must have been deeply impressed by the Iowa river and its name. Referring to the country west of the Mississippi river he says: "The District under review has been often called 'Scott's Purchase,' and it is sometimes called the 'Black-Hawk Purchase'; but from the extent and beauty of the Iowa river which runs centrally through the District, and gives character to most of it, the name of that stream, being both euphonous and appropriate, has been given to the District itself." The Iowa District was likely to become a separate Territory at an early day, since all indications pointed in the direction of a division of the Territory of Wisconsin. First, the geographical area of the Territory as designated in the Organic Act was sufficient for three or four ordinary Commonwealths. Secondly, this area did not possess geographical unity. Thirdly, historical traditions and considerations favored the establishment of a separate Territory east of the Mississippi, which at the proper time should be admitted as the fifth State born of the Ordinance of 1787 within the limits of the old Territory of the Northwest. Fourthly, the population of the Territory, which was increasing with unparalleled rapidity, was so widely scattered as to make it practically impossible to give equal force to the laws and equal efficiency to the administration of government in all of the frontier communities. That the "Father of Waters" should serve as the natural line of division was generally conceded. Scarcely had the act organizing the Territory of Wisconsin gone into effect, when the agitation for division was launched. By the fall of 1837 it had captured the public mind. The burden of the movement was taken up with enthusiasm by the inhabitants of the Iowa District. They realized that the proposition to remove the seat of the Territorial government from Burlington to some point east of the Mississippi was likely to rob them of much political influence and some distinction. They felt that a Territorial government located somewhere "in the vicinity of the Four Lakes" could not successfully administer constitutional government in the Iowa District. The people of Des Moines county were among the first to take formal action on what may well be called the first vital question in the history of the Constitutions of Iowa. At a meeting held in the town of Burlington on Saturday, September 16, 1837, they resolved "That while we have the utmost confidence in the ability, integrity and patriotism of those who control the destinies of our present Territorial Government, and of our delegate in the Congress of the U. States, we do, nevertheless, look to a division of the Territory, and the organization of a separate Territorial Government, by Congress, west of the Mississippi river, as the only means of immediately and fully securing to the citizens thereof, the benefits and immunities of a government of laws." In another resolution they "respectfully and earnestly recommend to the people of the Territory west of the Mississippi river, immediately to hold county meetings in their respective counties, and appoint three delegates from each county, to meet in Convention at this place, on the first Monday in November next." Pursuant to this call of the people of the county of Des Moines for an Iowa District convention, delegates from seven organized counties west of the Mississippi met at the Capitol in Burlington on Monday, November 6, 1837, and organized themselves into a "Territorial Convention." As such they continued in session for three successive days. On the second day a resolution was adopted inviting the Governor, members of the Legislative Council, Judges, and members of the bar of Burlington "to take seats within the bar." Committees were then appointed to prepare memorials on the several subjects before the delegates for consideration. On the third day three separate memorials to Congress were unanimously adopted. These related to (1) pre-emptions, (2) the northern boundary line of Missouri, and (3) the division of the Territory. In the memorial relative to the proposed division of the Territory, it was represented, "That the citizens of that part of the Territory west of the Mississippi River, taking into consideration their remote and isolated position, and the vast extent of country included within the limits of the present Territory, and the utter impracticability of the same being governed as an entire whole, by the wisest and best administration of our municipal affairs, in such manner as to fully secure individual right and the rights of property, as well as to maintain domestic tranquillity, and the good order of society, have by their respective Representatives, convened in general convention as aforesaid, for the purpose of availing themselves of their right of petition as free citizens, by representing their situation and wishes to your honorable body, and asking for the organization of a separate Territorial Government over that part of the Territory west of the Mississippi River. "Without, in the least, designing to question the official conduct of those in whose hands the fate of our infant Territory has been confided, and in whose patriotism and wisdom we have the utmost confidence, your memorialists cannot refrain from the frank expression of their belief that, taking into consideration the geographical extent of her country, in connection with the probable population of western Wisconsin, perhaps no Territory of the United States has been so much neglected by the parent Government, so illy protected in the political and individual rights of her citizens . . . . It will appear that we have existed as a portion of an organized Territory for sixteen months, with but one term of court. Your memorialists look upon those evils as growing exclusively out of the immense extent of country included within the present boundaries of the Territory, and express their conviction and belief, that nothing would so effectually remedy the evil as the organization of Western Wisconsin into a separate territorial Government. To this your memorialists conceive themselves entitled by principles of moral right, by the sacred obligation that rests upon the present government to protect them in the free enjoyment of their rights, until such time as they shall be permitted to provide protection for themselves; as well as from the uniform practice and policy of the Government in relation to her other Territories . . . . Your memorialists therefore pray for the organization of a separate territorial government over that part of the Territory of Wisconsin west of the Mississippi river." The time and place of the meeting of this remarkable "Territorial Convention" were certainly most opportune. Meeting in the halls of the Legislative Assembly at the Capital of the Territory and in the very presence of the members of the Assembly, the delegates declared it to be the wish and will of the people that the Territory be divided. The members of the Assembly were impressed with the fact that the people west of the Mississippi were in earnest, and, as representatives of the whole Territory, they too drew up a memorial which was approved by the Governor within three weeks after the Convention had adjourned. In this memorial the Legislative Assembly stated the case as follows: "That owing to the great extent of country embraced in the limits of Wisconsin Territory, and that vast extent of Territory being separated by a natural division, (the Mississippi river,) which renders the application of the same laws oppressive or unequal to one section or the other; the true policy of the two sections of the Territory being as widely different as their locations; and the impracticability of the officers of the General Government to administer the laws; render it highly important in the opinion of your memorialists that that portion of the Territory lying west of the Mississippi river be formed into a separate Territorial Government. "The Territory of Wisconsin now contains fifty thousand inhabitants; one-half of which, at least, reside on the west side of the Mississippi river. "Without any intention of censuring the official conduct of the officers in whose hands the administration of our infant Territory has been intrusted . . . . your memorialists would respectfully represent, that the western portion of Wisconsin, with a population of twenty-five thousand souls, reaps but a small portion of the benefits and advantages of the fostering care and protection of the mother Government. Your memorialists would further represent, that the population of Wisconsin is increasing with a rapidity unparalleled in the history of the settlement of our country; that, by a division of the Territory, and the formation of a separate Territorial Government west of the Mississippi river, your honorable body would greatly advance the political and individual interests of her citizens." By January 1, 1838, the people had expressed their views. They had formulated their convictions into a definite request which called for immediate division of the Territory. The scene of debate and discussion now shifts from the prairies to the halls of Congress. Here on February 6, 1838, the Committee on the Territories, to whom had been referred the memorials of the Territorial Convention and Legislative Assembly along with petitions from sundry citizens, and who by a resolution of December 14, 1837, had been instructed "to inquire into the expediency of establishing a separate Territorial Government for that section of the present Territory of Wisconsin which lies west of the Mississippi river and north of the State of Missouri," reported a bill to divide the Territory of Wisconsin, and establish the Territorial government of Iowa. In the report which accompanied this bill the Committee stated that they had become "satisfied that the present Territory of Wisconsin is altogether too large and unwieldy for the perfect and prompt administration of justice or for the convenient administration of the civil government thereof." They were more specific in saying that "the judges of the Territory, as it now is, and also the Governor, district attorney, and marshal, are entirely unable to perform their respective duties in all parts of the Territory." They also pointed out that of the fifty thousand inhabitants in the Territory more than half resided west of the Mississippi river, that the population was rapidly increasing, that the natural line of division was the Mississippi river, that the Capital would soon be removed to eastern Wisconsin, and that "so much of the Territory of Wisconsin as is east of the Mississippi river must necessarily form one State." It was not, however, until early in the month of June that "An act to divide the Territory of Wisconsin and to establish the Territorial Government of Iowa" passed both the Senate and the House of Representatives. On June 12, 1838, it received the approval of President Van Buren. As the Constitution of the Territory of Iowa it took effect on the sixty-second anniversary of the Independence of the American Nation. In the chronology of our Constitutions it stands as the second code or text of fundamental law. But the Territory of Iowa was not established without opposition in Congress. The discussion in the House of Representatives on the fifth and sixth days of June, and immediately preceding the passage of the act dividing the Territory of Wisconsin, brought out something of the broader significance of the proposition to create a new Territory in the country west of the Mississippi and north of the State of Missouri. From the records it appears that the sympathies of the Representatives were not all with the men on the frontier. Mr. Mason of Ohio, who moved to strike out the enacting clause, said that he desired to obtain information relative to the assertion "that the people had settled there in a manner contrary to law." "Mr. Waddy Thompson opposed the bill and the creation of a Territorial Government in the Northwest." He went at great length into "a consideration of the balance of power between the Northern and Western, and Southern States, as far as related to the questions of slavery, and the annexation of Texas." He declared that "he would never consent to the coming in of these Territories or States into the Union, when the fanatical spirit of the North was pouring into the House memorials against the annexation of Texas, simply because it was cursed with the peculiar institution of the South." To preserve the balance of power between the two sections of the Union, was the substance of Mr. Thompson's plea. If by the creation of the Territory of Iowa the North is promised a new State, the demand of the South for the annexation of Texas should, in accordance with the principle of the balance of power, be recognized. Thus it was proposed to meet the problem of admitting States at the time of the formation of new Territories. In the course of the debate it was suggested by Mr. Mercer "that Iowa be organized as a Territory when Wisconsin was admitted as a State." It remained for Mr. Shepard of North Carolina to make emphatic objections all along the line. He opened his speech by intimating that the bill had been introduced to the end that "a fresh rich field might be opened to those who speculate in public lands, and a batch of new offices created for such as seek Executive favor." He had no sympathy with the squatters. "Who are these that . . . . pray for the establishment of a new Territory? Individuals who have left their own homes and seized on the public land . . . . These men pounced on the choicest spots, cut down the timber, built houses, and cultivated the soil as if it were their own property . . . . Without the authority of law and in defiance of the Government, they have taken possession of what belongs to the whole nation, and appropriated to a private use that which was intended for the public welfare. These are they who require a governor and council, judges, and marshals, when every act of their lives is contrary to justice, and every petition which they make is an evidence of their guilt and violence. We, who are insulted, whose authority is trampled under foot, are asked for new favors and privileges; the guardians of the law are approached by its open contemners, and begged to erect these modest gentlemen into a dignified Government . . . . I cannot sanction their conduct; if they would not move peaceably, they should go at the point of the bayonet; if they forget what is due to their country and their distant fellow-citizens, they ought to be punished. The majesty of the laws should be vindicated." The Representative from North Carolina was jealous of the growth and development of the West, and he objected to the liberal land policy of the United States since it encouraged the young men to leave their southern homes. He declared that "if the Territory of Iowa be now established, it will soon become a State; and if we now cross the Mississippi, under the beautiful patronage of this Government, the cupidity and enterprise of our people will carry the system still further, and ere long the Rocky Mountains will be scaled, and the valley of the Columbia be embraced in our domain. This then is the time to pause . . . . "If happiness depended entirely on the number of hogs raised, or the quantity of corn gathered, then the citizens should be dispersed, so as to occupy the most fertile spots in our whole territory . . . . But whatever may be the effect of this land policy on the general welfare, it has been deeply injurious to the Southern portion of the Confederacy . . . . If all of the people born in North Carolina had remained in its limits, our swamps and low grounds would have rivalled the valley of the Nile in production, and our pine barrens would have been flourishing with the vine, the olive, and the mulberry. We have, therefore, reason to complain of the policy of this Government . . . . Others may act as pleases them, but I will never sustain a policy so detrimental to the people with whom I am connected . . . . If these remarks be unavailing, the patriot should fear for the permanence of the Republic." The spirited debate, which took place in the House of Representatives, on the question of the establishment of the Territorial government of Iowa disclosed the fact that the creation of a new Territory at this time west of the Mississippi and north of Missouri was of more than local interest; it was, indeed, an event in the larger history of America. Some few men were beginning to realize that the rapid settlement of the Iowa country was not an isolated provincial episode but the surface manifestation of a current that was of National depth. Far-sighted statesmen whose eyes were neither blinded by the lights of the moment nor yet always riveted upon that which for the time was most brilliant, saw that a plain, common-looking pioneer farmer from across the Mississippi had come upon the stage of National Politics and had already begun to play a role in the great drama of American Democracy. But even the prophets did not so much as dream that, within the memory of men then living, the awkward amateur would take the part of a leading actor in the play. VII THE CONSTITUTION OF THE TERRITORY The Territorial epoch in our history began in 1836, when the Territory of Wisconsin was established; it came to a close in 1846, when the State of Iowa was organized and admitted into the Union. Two Constitutions belong to this decade--the Organic Act of the Territory of Wisconsin, and the Organic Act of the Territory of Iowa. These Constitutions are very much alike both in form and content. Indeed, the latter was copied from or modeled upon the former. An outline of either would fairly indicate the content of the fundamental law for the whole Territorial epoch. But to avoid unnecessary repetition on the one hand and confusion on the other, the title of the present chapter will be taken to mean the Organic Act of 1838. The Constitution of the Territory of Iowa is clearly an outgrowth of American political development. In its provisions is summed up the final product of that most interesting series of evolutionistic transformations in Territorial government that took place throughout the North and West. The first in the long line of American Territorial Constitutions, and the starting point of subsequent development, was the ordinance of the Congress of the Confederation now familiarly known as "The Ordinance of 1787." Nor was this famous ordinance itself a code of _new_ political principles. Consciously or unconsciously its framers drew largely from the principles, forms, and practices of American government prior to the Revolution. The analogy between the Colonial and Territorial governments of America is too striking to be dismissed as accidental. The relation of the United States to the Territories has always been of a Colonial character. In the history of Territorial government the Ordinance of 1787 stands as the Magna Charta of the West. But the Great Ordinance like the Great Charter was in many respects crude, incomplete, and un-American. Place it by the side of the Constitution of the Territory of Iowa, and it is plain to see that in the course of fifty years marked changes had taken place--especially in the direction of democratization. The Constitution of the Territory is a written instrument of twenty sections or articles, containing in all about four thousand words. It has no preamble, but is simply introduced by the enacting clause. As a pure product of Congressional legislation it was promulgated upon the legislative authority of Congress with the approval of the President of the United States. In its origin, therefore, it resembles the Royal Charters of Europe more than the written Constitutions of America. The Constitution of the Territory was literally handed down to the people who were governed under its provisions _without their own consent_ directly given. The first section purports to create a new Territory, by fixing the boundaries thereof and declaring that from and "after the third day of July next, all power and authority of the Government of Wisconsin, in and over the Territory hereby constituted shall cease." On reading this section one is almost startled by the matter-of-fact way in which a body of legislators _seem_ to have made a Constitution and established a new political society. In providing for the executive department in the very next section the logical order of the Constitution of the United States was reversed by placing the executive "power and authority" before that of the legislative. This, however, was altogether natural, since the Governor had been the central figure in Territorial government ever since the days of the great St. Clair. He was no figure-head, but the real Government, influencing legislation as well as directing the administration. Robert Lucas, the first of the Territorial Governors of Iowa, seems to have fully apprehended this fact, for from the very outset he made himself the real power in public affairs. The influence of the Governor was dominant in Territorial government chiefly because, like his prototype in the Colonies, he represented the majesty and the supreme authority of the National government. "The executive power and authority in and over the said Territory of Iowa," runs the Organic Act, "shall be vested in a Governor, who shall hold his office for three years, unless sooner removed by the President of the United States." The Governor was appointed by the President, but must reside in the Territory and "shall take care that the laws be faithfully executed." He was commander-in-chief of the militia and commissioned all officers appointed under the laws of the Territory. It was his to grant pardons for offenses against the laws of the Territory and provisional reprieves for offenses against the laws of the United States. Besides all this, he was Superintendent of Indian affairs for the National government. In the government of the Territory of Iowa the Governor was something more than chief of the militia and author of commissions and pardons. Like the King of England, he was a constituent branch of the law-making body. Not only did the Organic Act declare "that the legislative power shall be vested in the Governor and a Legislative Assembly," but it gave to the Governor the power of an absolute veto over all acts of the Assembly. Indeed, it was this extraordinary power to participate in legislation along with the power to appoint all inferior judicial officers, justices of the peace, sheriffs, militia officers, and county surveyors that gave our first Governor a real power and prestige not since enjoyed by any executive--State or Territorial. A Secretary of the Territory was provided for in the third section. This officer stood next to the Governor in importance; and in case of the death, removal, resignation, or necessary absence from the Territory of the latter he was authorized and required to execute and perform the gubernatorial powers and duties. The Secretary was appointed by the President for a term of four years, but was subject to removal at any time. His chief duty was to record and preserve the laws, acts, and proceedings of both the Legislative Assembly and the Governor, and yearly transmit copies thereof to the President of the United States and to the Speaker of the House of Representatives. The legislative power was, by the fourth section of the Constitution, "vested in the Governor and a Legislative Assembly." The Assembly was a representative body organized on the bicameral plan into a "Council" and a "House of Representatives." The Council consisted of thirteen members, elected biennially; while the House of Representatives had just double that number, elected annually. The members of both houses were chosen directly by the qualified voters of the Territory. They were elected by districts, and apportioned on the basis of population. The Assembly was to meet annually; "but no session in any year shall exceed the term of seventy-five days." A lavish delegation of power was granted to the Legislative Assembly by the sixth section of the Constitution which provided "that the Legislative power of the Territory shall extend to all rightful subjects of legislation." Just what is meant by "rightful subjects of legislation" is nowhere stated. But from the pages of the Territorial statutes it is manifest that the important subjects of legislation were in general the establishment of local government, the creation of business and public corporations, the maintenance of the institution of private property, the fulfilment of contracts, and the guarantee of personal security. The sphere of legislation granted to the Territory was larger than that reserved to the Commonwealth of Iowa. It would, however, be a grave mistake to view the powers of the Legislative Assembly as unlimited, since the Constitution of the Territory contains (_a_) certain specific prohibitions, (_b_) a general limitation, and (_c_) a Bill of Rights. The specific prohibitions are: "no law shall be passed, interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents." These specific prohibitions are followed in the same section by the general limitation which reads: "All the laws of the Governor and Legislative Assembly shall be submitted to, and if disapproved by, the Congress of the United States, the same shall be null and of no effect." The Territorial Bill of Rights as set forth in the Constitution is exceedingly brief--perhaps the shortest Bill of Rights on record. It consists of a single sentence and reads as follows: "The inhabitants of the said Territory shall be entitled to all the rights, privileges and immunities heretofore granted and secured to the Territory of Wisconsin and to its inhabitants." On its face this guarantee of the fundamental rights of man and of the citizen seems vague and unsatisfactory. But it is, nevertheless, large in implication. If we turn to the Constitution of the Territory of Wisconsin to see what rights, privileges, and immunities were therein guaranteed, we find "that the inhabitants of the said Territory shall be entitled to, and enjoy, all and singular the rights, privileges, and advantages, granted and secured to the people of the Territory of the United States northwest of the river Ohio, by the articles of the compact contained in the ordinance for the Government of the said Territory, passed on the thirteenth day of July, one thousand seven hundred and eighty-seven; and shall be subject to all the conditions and restrictions and prohibitions in said articles of compact imposed upon the people of the said Territory." In other words, the provisions of the Ordinance of 1787 are by implication made a part of the Constitution of the Territory of Iowa. Thus the people of Iowa inherited through the Territorial Constitutions of 1836 and 1838 the political principles of the great Ordinance of 1787 as a Bill of Rights. Great was the legacy. Mark the classical expression of that instrument in enumerating the immemorial rights, privileges, and principles of Anglo-Saxon polity. "No person demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments . . . . The inhabitants of the said Territory shall always be entitled to the benefits of the writ of _habeas corpus_, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. And in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with, or affect private contracts or engagements, _bona fide_, and without fraud previously formed." These words are more than formal expressions of great principles; they are ennobling. But to read farther, that religion, morality, and knowledge are necessary to good government and the happiness of mankind, and that there shall be neither slavery nor involuntary servitude in the said Territory, is to inspire reverence. Such, indeed, are the "liberties we prize" and the "rights we will maintain." The judicial power of the Territory was vested by the Constitution in "a Supreme Court, district courts, probate courts, and in justices of the peace." The Supreme Court consisted of a Chief Justice and two associate justices. They were appointed by the President for a period of four years, and were required to hold a term of court annually at the seat of government. The Constitution further directed (_a_) that the Territory be divided into three judicial districts, (_b_) that a district court or courts be held in each of the three districts by one of the judges of the Supreme Court, and (_c_) that the said judges reside in the districts respectively assigned to them. The courts of the Territory of Iowa were "legislative courts," that is, courts created by Congressional legislation. The extent of their jurisdiction was much greater than that of State courts, since by the Organic Act they were empowered to exercise the customary jurisdiction of both State and Federal courts. In addition to those already mentioned, the Constitution provided for two other prominent Territorial officers, namely, a Marshal and an Attorney. Both were appointed by the President of the United States for a term of four years. At the National Capital the Territory was represented by a Delegate who was elected by the people for a term of two years. The Delegate was entitled to a seat in the House of Representatives where he could participate in debate but was not allowed a vote. One of the most significant sections of the Constitution is the fifth. It provides "that every free white male citizen of the United States, above the age of twenty-one years, who shall have been an inhabitant of said Territory at the time of its organization, shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory." Thereafter the suffrage qualifications were to be determined by the Legislative Assembly; "_Provided_, That the right of suffrage shall be exercised only by citizens of the United States." Although the Organic Act of 1838 was almost a literal copy of the Organic Act of 1836, the following differences are worthy of observation: First, the term of the members of the Council was changed from four years in 1836 to two years in 1838. Secondly, the term of Representatives was changed from two years in 1836 to one year in 1838. Thirdly, the term of the judges of the Supreme Court was changed from "good behavior" in 1836 to four years in 1838. Fourthly, by the Organic Act of 1838 the judges of the Supreme Court were required to reside in their respective districts. Fifthly, the salary of the judges of the Supreme Court was reduced from eighteen hundred dollars in 1836 to fifteen hundred dollars in 1838. Reflection upon the history and provisions of the Constitution of the Territory leads to a few general conclusions. First, this Constitution was written i. e. codified. In the second place, it was an act of Congress. Again, its provisions represent political evolution in Territorial government up to the year 1838. Furthermore, government in the Territory, though subordinate, had a wider sphere of activity under the Organic Act than has ever since been enjoyed by government under a State Constitution. This is true, since the Legislative Assembly and the Territorial courts exercised to a considerable extent the customary functions of both National and State governments. Still further, the President of the United States was in theory the head of Territorial administration, since he had the power to appoint and remove the chief administrative officers in the Territory. Finally, there existed in the machinery of Territorial government a nice balance between administration on the one hand and legislation on the other, that is, between the part which was responsible directly to the President of the United States and the part which was responsible directly to the people of the Territory. VIII THE CONSTITUTION OF THE TERRITORY AMENDED No provision for its amendment is contained in the Organic Act of 1838; but by inference and implication it is clear that the power to change, alter, or amend the Constitution of the Territory resided in Congress. The process of amendment, therefore, was that of ordinary legislation. Congress was not long in exercising this extraordinary power. On March 3, 1839, within eight months of the organization of the Territory, the President approved two acts amending the Constitution. These were: (1) "An act to alter and amend the organic law of the Territories of Wisconsin and Iowa;" and (2) "An Act to authorize the election or appointment of certain officers in the Territory of Iowa, and for other purposes." The first limited the veto power of the Governor by providing that bills not approved by him might, nevertheless, become laws if passed a second time by two-thirds of both houses of the Legislative Assembly. The second likewise aimed at curtailing the powers of the Governor by authorizing the Legislative Assembly to "provide by law for the election or appointment of sheriffs, judges of probate, justices of the peace, and county surveyors." The history of a quarrel between the Governor and the first Legislative Assembly, which in a great measure occasioned these amendments, is significant in throwing light upon the political ideas and the democratic frankness and determination of the people of the Territory. On July 7, 1838, President Van Buren issued a commission to Robert Lucas of Ohio, appointing him Governor of the new Territory of Iowa. The position was a difficult one to fill; but the President's selection promised to be the very best. Lucas was neither young, obscure, nor inexperienced. Born in Virginia, he had served with distinction in the War of 1812. He had served in the Legislature of Ohio, and had twice been elected to the office of Governor by the people of that State. In 1832 he acted as Chairman of the first National Convention of the Democratic Party. Upon receiving his commission as Governor of Iowa, Robert Lucas repaired with all possible haste to the West. Venerable with years and political experience, he arrived at Burlington in August, 1838. Here he found that Wm. B. Conway, the Secretary of the Territory, "had _assumed_ the Executive prerogative, had issued a proclamation dividing the Territory into Judicial Districts, and was about issuing a proclamation apportioning the Representatives and ordering an election." The conduct of the Secretary provoked the Governor; and Robert Lucas was not the man to conceal his feelings or hesitate to express his mind. From that time to the death of the Secretary in November, 1839, the two men were enemies. Lucas, in a letter to John Forsyth, Secretary of State, declared that Conway "has not only done nothing to render me assistance, but _is generally believed to be the prime mover of the opposition to my proceedings, and the author_ of the documents forwarded to Washington by the members of the Legislature." The first Legislative Assembly of the Territory of Iowa did not meet until November 12, 1838. On the first day of the session each house proceeded to organize _pro tempore_. Then they assembled jointly in the hall of the House of Representatives to be sworn in by the Governor, and to receive any communication which his "Excellency" might have to make to them. Governor Lucas delivered his first message in person. He took pains to emphasize the fact that the Organic Act had vested the legislative power in "the Governor and a Legislative Assembly," which meant that "the Executive is vested with advisory and restraining powers, and the Legislative Assembly with deliberative and enacting powers." "In no place," he declared later in a communication to the Secretary of the Territory, "is there any power vested in the Legislative Assembly independent of the Governor." Throughout the message, which when printed covered ten pages of the journal, the Governor freely advised and recommended such measures as he deemed most expedient. Then near the close he boldly added: "I shall at all times take pleasure in concurring with you in acts that tend to advance the general interests of the Territory, and the prosperity of the people;--but at the same time will be compelled to withhold my assent to such acts, or proceedings, as I may conscientiously for the time being believe to be prejudicial to the public good." Robert Lucas lived up to the spirit and the letter of his declaration. In the matter of appointments the Governor's policy was courageously set forth in these words: "I shall at all times pay a due respect to recommendations; but cannot conscientiously nominate to office any individual of _bad moral character_, or, that may be addicted to _intemperance or gambling_, if known to me. These vices are so contaminating in their character, that all public officers in my opinion should be clear of even a suspicion of being addicted to them." Lucas, writing some years later, was of the opinion that this declaration was one of the potent causes of opposition to his administration. After the election of permanent officers, which followed the Governor's speech, the Legislative Assembly proceeded with energy and enthusiasm to the business of legislation. But not a few of its measures met with the disapproval of the Governor. It soon became evident that the relations between the Executive and the Assembly were not altogether cordial. The situation was made still more embarrassing by the ill feeling which existed between the Governor and the Secretary of the Territory. Indeed it is clear that Mr. Conway was instrumental in stirring up much of the opposition to Governor Lucas by confiding his private grievances to members of the Assembly, by deferring to the Assembly to the point of servility, and by affecting to set up an administrative department distinct and separate from that of the Governor. On November 14, he submitted to the Council and House of Representatives the first of a series of communications bearing directly upon his own position and powers as Secretary and his relations to the Legislative Assembly, and indirectly upon his relations to the Governor and the relations of the latter to the Assembly. It was early in the session that the Council and House of Representatives resolved "That when an act is presented to the Governor for his approval, he shall, within a reasonable time thereafter, make known to the House in which said act may have originated of his approval thereof; or if not approved of, the act shall be returned, with his objections thereto." For some weeks after its passage, this resolution seems to have received no attention. Either there was delay in presenting it to the Governor, or the Governor did not give it his immediate attention. It was not until January 4, 1839, that the resolution was returned to the House of Representatives with this observation from the Governor: "I see no place in the organic law, that vests the Council and House of Representatives with the right to dictate to the Executive in the discharge of his official duties." In the meantime the Council had taken steps looking toward the regulation by statute of all official intercourse between the legislative and executive departments of the government. On December 4, 1838, a committee of two was appointed to confer with the Governor and report a bill. The committee held the conference and reported a bill on the day following. After some discussion the bill passed the Council on December 11, but not without important amendments. On the day following, the bill as amended passed the House of Representatives. It was presented to the Governor on the 18th. On December 19, Lucas returned the bill to the Council with his veto. He objected to the changes which had been made in the bill as originally reported by the committee. At the same time he took occasion to state, for the information of the Assembly, the course he intended to pursue in the future. He said: "All bills, resolutions, or memorials, submitted to me, will be carefully examined, and if approved, will be signed and deposited in the office of the Secretary of the Territory. If special objections are found, but not sufficient to induce me to withhold my assent from the bill, resolution, or memorial, a special note of explanation will be endorsed with my approval. Bills, resolutions, or memorials, that may be considered entirely objectionable, or of doubtful policy, will be _retained under advisement_ or returned to the Legislative Assembly, with my objections, at such time, and in such way and manner as I may, for the time being, deem to be most advisable." In reply to all this it was "Resolved, By the Council and House of Representatives of the Territory of Iowa, That his Excellency Gov. Lucas, is hereby respectfully requested to inform each House of the Legislative Assembly, of all acts by him approved during the present session; and that he is further requested hereafter to inform the House in which a bill originated of his approval thereof immediately after the same has been given." With a brief message, Lucas returned this resolution to the House of Representatives on January 5, 1839. He would at all times be pleased to comply with requests from the Assembly, provided it "could be done with some propriety and conscience; but having neither secretary, clerk, messenger, assistant or other attendant, in public employ, at the Executive office, . . . . I must respectfully decline a compliance with your respectful request, and most respectfully invite your attention to my communication of the 19th December last." Two days later a committee of the House of Representatives headed by James W. Grimes reported on the Governor's vetoes. They held that the "various Executive vetoes" were not only uncalled for, but were unwarranted by the Organic Act of the Territory. The phrase in the Constitution which reads, "shall approve of all laws," is mandatory and leaves the Executive without discretion. The committee took the whole matter very seriously, believing that great principles were at stake. "As representatives of the people," they declared, "we conceive that we should be recreant to their rights and true interests, if we should acquiesce in the 'veto power' as used by the Executive . . . . We believe the people should be heard through those who represent them and are responsible to them. That their wishes should be regarded, and not the wishes of the Federal Government or a federal officer. We believe the principle claimed by the Governor is a most dangerous and pernicious principle, and as the representatives of freemen we cannot acquiesce in it." A week later the House "Resolved, That Robert Lucas is unfit to be the ruler of a free people," and appointed a select committee to prepare a memorial to the President of the United States praying for his immediate removal. The Council committee on Territorial Affairs was no less emphatic in its condemnation of the "Executive Vetoes." They did not believe that Congress in framing the Organic Act intended to confer the power of an absolute veto upon the Governor. In their report of January 22, 1839, upon the bill regulating the intercourse between the executive and legislative departments, they exclaimed: "It is time to remonstrate. The liberty of the people should be dear to their representatives, and he who DARES not defend their sacred rights, who would not, in the hour of peril, stand as a sentinel to guard their privileges, is unworthy the name of a freeman." In the meantime the Legislative Assembly had prepared a memorial to Congress requesting an amendment to the Organic Act which would limit the Governor's veto power. The Governor remained firm and unmoved to the end of the session. Notwithstanding all the resolutions, reports, and memorials of the Assembly, he continued to approve some measures, veto others, and endorse still others with special notes of explanation. Nor did the indignation of the members of the Legislative Assembly subside as the session neared its close. They now hoped to get rid of the Governor. So they addressed a memorial to "His Excellency Martin Van Buren, President of the United States," in which they enumerated at length "the faults of Governor Lucas' administration," and asked for his immediate removal from the office of Chief Executive. In the House of Representatives the minority offered a preamble and resolution praying that they be allowed to forward a counter memorial to the President, but on the motion of James W. Grimes their preamble and resolution were rejected. This remarkable memorial concerning Robert Lucas reads much like the arraignment of King George III in the Declaration of Independence. In the political history of Iowa it stands as the declaration of the independence of the will of the representatives of the people as over against the will of the administration. It stands as the protest of Democracy against the exercise of arbitrary power. Its significance lies not in any statement or misstatement of historical facts, but in the spirit of independence, courage, and democracy which pervades its lines. When the Legislative Assembly met in November, 1839, the storm had passed. The Constitution of the Territory had been amended. Robert Lucas was still in office. But, reflecting upon the situation, he could truthfully say in his message: "It is with heartfelt gratitude to Almighty God . . . . that I am, through His _special Providence_, permitted again to address the Legislative Assembly." IX AGITATION FOR A STATE CONSTITUTION The early agitation for the establishment of a State government cannot justly be interpreted as opposition to the Constitution of the Territory, or as disaffection with the Territorial government. On the contrary, it was altogether natural for the people who settled in the new Territory west of the Mississippi to look forward to the early establishment of a State government. Never in the history of the United States had Territories been viewed as permanent. In fact it was everywhere understood that the Territorial organization was at most a temporary arrangement which in time would give way to the more perfect Constitution of the Commonwealth. Then, too, in the case of Iowa there was such a rapid growth of population that admission into the Union could not be long delayed under any circumstance. Mr. Shepard was right when in 1838 he said: "If the Territory of Iowa be now established, it will soon become a State." The movement for the establishment of a State government was inaugurated by Robert Lucas in his message to the second Legislative Assembly which met at Burlington on November 4, 1839. The Governor was of the opinion that in view of the "rapidly increasing population, and advancing prosperity of the Territory" the Assembly might "with propriety proceed to measures preparatory to the formation of a Constitution and State government." He knew that some would object to such measures as premature, "inasmuch as our expenses are defrayed by the United States," while the financial burdens of a State government would all have to be borne by the people. But, argued the Governor, did not prosperity and improvement within the States of Ohio, Indiana, Illinois, and Michigan languish during the Territorial period, and then advance "with rapid strides from the moment of their several admissions into the Union as independent States?" To his Excellency these historical "facts" were conclusive. The inference was clear in his mind. Prosperity and improvement result from the establishment of State government. So he earnestly recommended to the Legislative Assembly "the early passage of a memorial to Congress, respectfully asking of that body the passage of an Act, at their ensuing session, granting to the inhabitants of Iowa Territory the right to form a Constitution and State Government, and to provide for their admission into the Union upon an equal footing with the original States." Furthermore, he recommended "the passage of a law to provide for the calling of a convention to form a state constitution, so soon as Congress may grant by law the privilege to do so." The Governor was seriously in earnest. He even went so far as to recommend definite boundaries for the proposed Commonwealth. Lucas was not alone in these advanced views. The newly elected President of the Council, Stephen Hempstead, thought that, notwithstanding the fact that the "Territory is yet in the bloom of infancy," only a "short period will elapse before Iowa will become a State." "You, gentlemen," he said, addressing the members of the Council, "are placed here for the purpose of maintaining her rights as a territory, to enact salutary laws for her government and to prepare her for an admission into the Union, under the great principles of civil liberty." But the Legislative Assembly was more conservative. At the regular session of 1839-40 it neither memorialized Congress on admission into the Union nor passed a law providing for the calling of a Convention to form a Constitution. In opposition to the recommendations of the Governor and the views of a minority in the Assembly, it was argued (1) that the establishment of State Government would increase the burdens of taxation "which must render the new State government burdensome as well as odious to the people," (2) that "it could not add to the prosperity of the agriculturalist, the merchant, the miner, or the mechanic; nor could it render any more fruitful the sources of profit which are open to honest industry and application," and (3) that the people of the Territory enjoy under the acts of Congress ample liberty and freedom in self-government. The second Legislative Assembly of the Territory was not willing to assume the responsibility of measures looking toward so radical a change in the political status of the people of Iowa. On January 17, 1840, it adjourned only to meet again in extra session later in the year. In the meantime the Committee on Territories in the House of Representatives had reported a bill enabling the people of Iowa to form a Constitution and State government. This gave Lucas an opportunity of directing attention again to the matter in which he was so deeply interested. When the Assembly met in extra session July 13, 1840, he was prepared with a suggestion that was as reasonable as it was democratic. He would have the whole question referred to the people for decision. Presuming that the bill before Congress would pass, Lucas ventured to "suggest to the Legislative Assembly the expediency of providing by law for taking the sense of the people of this Territory on the subject of a convention at the next ensuing annual election." "It appears to me," he said, "that there can be no objection to submitting the subject to the people for their consideration, as an expression of public opinion through the ballot-box would enable the ensuing Legislative Assembly to act understandingly, and in accordance with the expressed will of the people on this important subject." Following the suggestion of the Chief Executive the Assembly provided by law for obtaining the wishes of the people at the annual August elections. All who favored the calling of a Convention were required to write "convention" on their ballots; while all who opposed the proposition were required to write "no convention." The law having been approved by the Governor on the last day of July, very little time was left for its consideration by the electorate before the elections. When the official returns were counted the Governor in a proclamation declared the result to be 937 votes for and 2,907 votes against a Convention. The defeat, which was decisive, indicated that the squatters had not yet paid for their claims. And so the Organic Act of 1838 continued to serve the people of Iowa as the code of fundamental law. Robert Lucas was disappointed, but he had to admit that the Territory went on increasing in population and wealth with phenomenal rapidity, notwithstanding the "facts" in the history of the Old Northwest. Not even the "imperfect conditions of Territorial government" seemed to affect in the slightest degree the economic prosperity and improvement of this frontier community. The overwhelming defeat of the Convention proposition at the polls checked for a time all agitation in favor of a State Constitution. Even the Governor, who up to this time had been its most sanguine advocate, declared in his message of November that since the people had expressed their preference for Territorial Government, "all further legislation on the subject at the present session" is precluded. The question now remained in _statu quo_ for over a year, that is, from August, 1840, to December, 1841. In the meantime Robert Lucas had served out his full term of three years. There was no chance for his reappointment since the Democrats had lost the Presidency in the elections of 1840. The new Whig President, William Henry Harrison, appointed John Chambers, of Kentucky, to succeed the Ohio statesman. Again Iowa was fortunate in securing as Governor a man of experience and of National reputation. When Governor Chambers sent his first message to the Legislative Assembly in December, 1841, he thought he had reason to believe that if the question of a Convention were again submitted to the people there would be evidenced by them a marked change in sentiment. Why? The answer was clearly set forth in the message. First, the population of the Territory had increased phenomenally since August, 1840. Secondly, Congress had passed the "Distribution Act" which provided (_a_) that Iowa should participate in the _pro rata_ distribution, along with the twenty-six States and three Territories, and the District of Columbia, of the net proceeds of the sales of public lands, and (_b_) that five hundred thousand acres of land for internal improvements should be granted to every new State that should be admitted into the Union. John Chambers thought the liberal provisions of the Distribution Act would remove the grounds of all objections based upon the argument that State organization would be followed by burdensome taxes. In the light of these considerations he recommended that the question of a Convention be again submitted to the people. Following this recommendation, the third Legislative Assembly passed "An Act to provide for the expression of the opinion of the people of the Territory of Iowa, upon the subject of the formation of a State Constitution and Government, and to enable them to form a Constitution for the State of Iowa," which act was approved February 16, 1842. Its provisions were as elaborate as its title. A poll was to be opened at each electoral precinct at the time of the general election in August. As the qualified electors approached the polls they were to be asked by the judges of election whether they were in favor of or against a Convention. Thereupon the electors were to answer simply, "Convention" or "No Convention." The clerks of election were charged with keeping a record of these _viva voce_ votes. The act provided further, that should a majority of the votes polled be found to favor a Convention, then eighty-two delegates to such a Constitutional Convention were to be elected on the second Tuesday in October next after the election aforesaid. On the first Monday of November next following their election, the delegates elected were to meet at Iowa City "and proceed to form a Constitution and State Government, for the Territory of Iowa." Finally it was provided "that when a Constitution and form of State Government" shall have been adopted by the Convention, the same shall be published in the newspapers of the Territory and voted upon by the people at the next general election, which would be held in August, 1843. The Governor's message and the measure inspired by it were clear, full, and to the point. They called up for public consideration the whole problem of State organization in its several phases of (_a_) the calling of a Constitutional Convention, (_b_) the formation of a State Constitution, and (_c_) the admission of the State into the Union. They opened up a lively political discussion which was to continue for full five years. As to the propriety and wisdom of calling a Constitutional Convention there was from the beginning a decided difference of opinion. The act of February 16, 1842, had met with strong opposition in both houses of the Legislative Assembly. In the press and among the people of the Territory the question became, naturally enough, the local issue in party politics. The Democrats who had fathered the measure in the Assembly were everywhere heartily in favor of State organization, but the Whigs, who, being in the minority, would neither control the Convention nor officer the new State government, were vigorous in their opposition. Three days after the approval of the act of the Assembly there appeared in the _Iowa City Standard_ a remarkable letter. Its author was Francis Springer, a member of the Council and a Whig of considerable influence. His letter was in substance "a speech prepared by him to be delivered in the Council on the bill relating to the Convention, but not delivered because shut down by the majority." From this speech it appears that the bill relative to State organization, as originally introduced, provided for a vote of the people on the question of a Constitutional Convention and the election of delegates at the same time. This was confusing, since the election of delegates assumed a favorable vote on the question of a Convention. But Mr. Springer was opposed to the bill in any form. He thought that since the people had not expressed a contrary opinion their adverse vote in 1840 "ought to settle the question." He intimated that the bill sought to create places for disappointed politicians. Certain prominent Democrats--notably Robert Lucas and Judge Williams--had recently lost their positions. "So offices must be created for them. Hence the proposition to create a State Government." Furthermore, Mr. Springer opposed the bill because State organization would greatly increase the burdens of local taxation. Nor was the recent legislation of Congress a satisfactory reply; for in his opinion the benefits to be derived from the Distribution Act would after all be inconsiderable. Satisfied with existing conditions, he asked: "Are we slaves? Is our liberty restricted? Are we deprived of the rights, immunities, and privileges of American citizens? Is the rod of oppression held over us by the General Government? Has that Government manifested its care towards us by sending persons to 'spy out our liberties, misrepresent our character, prey upon us, and eat out our substance?' It is not pretended that there is a murmur of the kind. We are in possession of the most enlarged liberty and the most liberal favors. Then why urge this measure, uncalled for by the people, unwarranted by the condition of the Territory?" The newspapers of the Territory were divided on party lines. The Democratic press favored the calling of a Convention and urged the immediate organization of a State government; while the Whig press just as vigorously opposed all such measures from the calling of a Convention to admission into the Union. In favor of a Constitutional Convention it was urged that the admission of Iowa into the Union would result in a more rapid increase in the population by immigration, since immigrants as a rule preferred States to Territories. Again, admission into the Union would give Iowa more influence at Washington, which would probably mean generous appropriations by Congress for the improvement of the rapids of the Mississippi. Politically the change would place the new Commonwealth on an equal footing with the other States, give the people a voice in the election of a President in 1844, and secure to them the long desired privilege of choosing their own Governor. It was even claimed that Statehood would promote character, foster independence, engender State pride, and inspire dignity, since "it would secure to us the noblest privilege of freemen! that of electing our own officers to govern over us, instead of being subjected to the additional humiliation of having them sent from abroad for that purpose." Finally, it was suggested that if Iowa did not hasten to make application for admission into the Union, Florida, the slave Territory which was then ready to be admitted, would be paired with Wisconsin. These arguments were frequently accompanied by declamation and exhortation. The Territorial state was declared to be a condition of "colonial dependence" or "colonial vassalage." And so the question before the people was set forth as one of "Dependence" or "Independence." Will they support the proposition to establish a State government and thus follow in the footsteps of the Fathers of the Revolution? Or will they oppose the proposition and thereby brand themselves as Tories? To the advocates of State government the way was clear. "The freemen of Iowa should rise and strike for independence." On the other hand, the opponents of State organization were quite willing "to let good enough alone." They were satisfied with Territorial government and saw no good reasons for a change. They were not unmindful of the fact that under the existing arrangement the expenses of the Territorial government were paid out of the Treasury of the United States. Then, too, the Whigs thought that the whole movement in favor of a State government savored of "jobs" and party aggrandizement. "It is evident," they said, "that a scheme is maturing with the Loco-focos of this Territory to involve the people in the support of a State government" for the "express purpose, as we believe, of benefitting such men as Ex-Governor Lucas (Lord Pomposity) and Judge Williams, and a few others of the same stamp." Furthermore, some declared that Iowa was too young for Statehood, her resources were too limited, and the people were hardly prepared for the adoption of State government. Mr. Lowe argued that the change would be undesirable because there really were no eminent men in the Territory fitted for the tasks of State government. This was intimating that the pioneers of Iowa were incapable of self-government. But the vital argument against this or any measure looking toward the establishment of a State government was the one which appealed directly to the people as taxpayers. Under the Organic Act of 1838 the United States generously assumed the burden of supporting the general government of the Territory, and so the salaries of Governor, Judges, Secretary, Attorney, and Marshals, the _per diem_ allowance of the members of the Legislative Assembly, the expense of printing the laws, the contingent expenses of the Territory, and other incidental expenses were all paid out of the Treasury of the United States. Public buildings were erected out of funds drawn from the same source. But a change from Territorial to State organization meant that in the future these public expenditures would have to be met by warrants drawn on the Treasury of the State, the coffers of which must be supplied through local taxation. The people protested. The men who were industriously breaking the prairies, clearing the forests, and raising corn preferred to invest their small earnings in lands and plows and live stock. An attempt was made to answer this argument. It was confidently asserted that the additional expense entailed by a State government would not exceed thirty thousand dollars annually. Nor would this amount have to be contributed by the people of Iowa, since it was estimated that the benefits to be derived from the Distribution Act would more than meet all additional obligations. Besides the State would receive five hundred thousand acres of land as a gift; while all the lands reserved for the support of schools could, under State organization, be used for such purposes. The answer was of little avail. No one could predict with certainty the operation of the Distribution Act. Under the circumstances a majority of the voters were not willing to abandon the Territorial organization for the "dignity" of a Commonwealth government. At the general elections in August, 1842, every County in the Territory returned a majority _against_ a Convention. Again the existence of the Organic Act of 1838 as a code of fundamental law was prolonged by a vote of the people. Again the agitation for a State Constitution remained in abeyance for over a year, that is, from August, 1842, to December, 1843. In the meantime there were at least some immigrants who did not "prefer States to Territories." By May, 1844, the population of the Territory numbered over seventy-five thousand souls. When the Legislative Assembly met in December, 1843, Governor Chambers was confident that the population of Iowa had "attained a numerical strength" which entitled the people to a participation in the government of the Union and to the full benefits of local legislation and local self-government. He therefore recommended in his message that provision be made for ascertaining the wishes of the people "in relation to this important matter." At the same time he advised the Assembly to "apply to Congress to fix and establish, during its present session, a boundary for the proposed State, and to sanction the calling of a Convention and to make provision for our reception into the Union as soon as we shall be prepared to demand it." The Governor's reference at this time to a possible boundary dispute is interesting in the light of subsequent events. He says: "The establishment of a boundary for us by Congress will prevent the intervention of any difficulty or delay in our admission into the Union, which might result from our assuming limits which that body might not be disposed to concede to us." The Legislative Assembly responded promptly to the suggestion that the people of the Territory be given another opportunity to express an opinion on what had come to be the most interesting question in local politics. As early as February 12, 1844, "An Act to provide for the expression of the opinion of the people of the Territory of Iowa upon the subject of the formation of a State Constitution for the State of Iowa" was approved by the Governor. In substance this act was practically a restatement of the provisions of the act of February 16, 1842. The _viva voce_ vote was to be taken at the Township elections in April, 1844. In many respects the campaign of the spring of 1844 was a repetition of the campaign of 1842. On the main issue the political parties were divided as before, that is, the Democrats favored and the Whigs opposed the calling of a Convention. In the public speeches and in the utterances of the press there was little that was new or refreshing. All the old arguments of 1840 and 1842 were dragged out and again paraded through the editorial columns of the newspapers. Again the opponents of State organization talked about the certain increase in the burdens of taxation and intimated that the whole movement was set on foot for no other purpose than to provide places for Democratic office-seekers. Again the ardent supporters of State government ignored the latter charge and replied to the taxation argument by quoting the provisions of the Distribution Act. Altogether the discussion lacked freshness, force, and vigor--it was stale and hackneyed. Two years of growth and reflection had wrought a change in sentiment. The public mind had evidently settled down in favor of State organization. At the elections in April the people returned a large majority in favor of calling a Constitutional Convention. This first move in the direction of Statehood having been made by the people, it now remained to take the several additional steps of (1) the election of delegates to a Constitutional Convention, (2) the drafting of a State Constitution, (3) the adoption of such a Constitution by the people, and (4) the admission of the new State into the Union. X THE CONVENTION OF 1844 In accordance with the provisions of the act of February 12, 1844, and the act of June 19 amendatory thereof, seventy-three delegates to a Constitutional Convention were elected at the general Territorial elections in August, 1844. These delegates were chosen on partisan grounds. With the electorate the primary question was not, "Is the candidate well grounded in the principles of government and administration?" but "What are his political affiliations?" When the votes were counted it was found that the Democrats had won a great victory. The Whigs had not succeeded in electing one third of the whole number of delegates. Events were making rapidly toward the realization of State government. On Monday, October 7, 1844, sixty-three of the delegates elected met in the Old Stone Capitol at Iowa City and organized themselves into a constituent assembly. The meeting was informally called to order by Francis Gehon of Dubuque County. Ralph P. Lowe was chosen to act as President _pro tem_. After a temporary organization had been fully effected the Convention of 1844 was formally opened with prayer. Upon the call of Counties by the Secretary the delegates presented their credentials and took their seats. One committee was appointed to examine credentials, and another to draw up rules of proceeding. The Convention then adjourned for the day. When the Convention met on Tuesday morning the Committee on Credentials presented the names of all the delegates who had produced certificates of election. A report from the Committee on Rules was laid on the table. Mr. Bailey's resolution that "the editors of this Territory be permitted to take seats within the bar of this House" was adopted. The Convention then proceeded _viva voce_ to the election of permanent officers, that is, a President, a Secretary, an Assistant Secretary, a Door-Keeper, and a Sergeant-at-Arms. The honor of the Presidency fell to Shepherd Leffler of Des Moines County. George S. Hampton and Alexander B. Anderson, who were elected Secretary and Assistant Secretary respectively, were not members of the Convention. Warren Dodd was elected Sergeant-at-Arms, and Ephraim McBride, Door-Keeper. Upon being conducted to the chair Mr. Leffler addressed the Convention in a most earnest manner. He tried to impress upon the members the serious importance of the work before them. "You meet gentlemen," he said, "on an occasion of the deepest interest. We are in the progress of an important change, in the midst of an important revolution, 'old things are to be done away and all things are to become new.' The structure and organization of our government are to be changed, territorial relations with the parent government are soon to cease, and Iowa must soon take upon herself the duties and the responsibilities of a sovereign State. But before this important change can be fully consummated, it is necessary for us to form a republican constitution, for our domestic government. Upon you, gentlemen, a confiding people have entrusted this high responsibility. To your wisdom, to your prudence, to your patriotism, they look for the formation of that instrument upon which they are to erect the infant republic--under your auspices the youngest and fairest daughter of the whole American family is to commence her separate political existence, to take her rank in the Union of the American States, and to add her star to the proud flag of our common country. Recollect, gentlemen, that the labor of your hands, whatever may be its fashion, will not be the fashion of a day, but permanent, elementary, organic. It is not yours to gild or to finish the superstructure, but to sound the bottom, to lay the foundation, to place the corner stone. Unlike the enactments of mere legislation, passed and sent forth to-day and recalled to-morrow, your enactments, when ratified by the people are to be permanent and lasting, sovereign and supreme, governing, controlling and directing the exercise of all political authority, executive, legislative and judicial, through all time to come." Mr. Leffler hoped that the Convention would frame a Constitution which would, "in all its essential provisions, be as wise and as good if not wiser and better than any other instrument which has ever yet been devised for the government of mankind," so that "Iowa, young, beautiful and blooming as she now is, endeared to us by every attachment which can bind us to our country, may at no distant day, for every thing that is great, noble or renowned, rival if not surpass the proudest State of the American confederacy." On the same day, and after the election of officers, the report of the Committee on Rules was taken up, slightly amended, and adopted. In the afternoon Mr. Hall, who came from a back county in which no newspapers were printed, moved "that each member of the Convention have the privilege of taking twenty copies weekly of the newspapers published in this city," and at the expense of the Convention. A lively discussion followed. Some favored the motion because its object was to provide the people with information concerning the Convention, others because they had already promised papers to their constituents. But Mr. Grant thought that it was both useless and corrupt. The delegates had come to the Convention with economy on their lips and therefore should resist such "useless expenditures." The motion was lost. On the third day standing committees were announced on the following subjects: (1) Bill of Rights; (2) Executive Department; (3) Legislative Department; (4) Judicial Department; (5) Suffrage and Citizenship; (6) Education and School Lands; (7) Incorporations; (8) State Boundaries; (9) County Organization; (10) Internal Improvements; and (11) State Debts. The Convention was now in condition to take up the great task of drafting a code of fundamental law. On Thursday--the fourth day--the real work of the Convention began with a report from the Committee on State Boundaries. Of the seventy-two members who labored in the Convention and signed the Constitution there were twenty-one Whigs and fifty-one Democrats. Twenty-six of the delegates were born in the South, twenty-three in the Middle States, ten in the New England States, ten in the States of the Old Northwest, one in Germany, one in Scotland, and one in Ireland. Of those born in the United States thirteen were from Pennsylvania, eleven from Virginia, nine from New York, eight from Kentucky, eight from Ohio, six from North Carolina, six from Vermont, and one each from Massachusetts, Connecticut, New Hampshire, Maine, New Jersey, Tennessee, Indiana, and Illinois. The oldest member was sixty-six, the youngest twenty-seven; while the average age of all was about forty years. As to occupation or profession, there were forty-six farmers, nine lawyers, five physicians, three merchants, two mechanics, two miners, two mill-wrights, one printer, one miller, and one civil engineer. The Convention lost no time in procrastinating delays. Committees were prompt in making reports. Parliamentary wranglings were infrequent. There was no filibustering. The discussions were, as a rule, neither long, wordy, nor tiresome. Indeed, the proceedings were throughout conducted in a business-like manner. The Democrats were determined to frame a Constitution in accordance with what they were pleased to call "the true principles of Jeffersonian Democracy and Economy." They had the votes to carry out this determination. And yet the proceedings of the Convention were by no means formal and without enlivening discussion. The fragments of the debates which have come down to us contain many remarks suggestive of the life, character, and political ideals of the people of early Iowa. For example, the discussion concerning newspapers, already referred to, brought out an expression of the popular ideal of economy and frugality. To be sure, newspapers containing information concerning the Convention and the fundamental instrument of government which was in the process of making would, if circulated widely throughout the Territory, educate and enlighten the people. But since the proposition involved the expenditure of several hundreds of dollars it was extravagant. The sacred principle of "Economy" could not be sacrificed to enlightenment. This pioneer ideal of thriftiness persisted among the Iowans for more than a generation. Strict even to parsimoniousness in the matter of public expenditures, the pioneers of Iowa were not always puritan in observing the forms of religion. Their liberal attitude and their fearless courage in expressing views on so delicate a subject were displayed in an interesting debate in the Convention on a resolution offered by Mr. Sells to the effect "that the Convention be opened every morning by prayer to Almighty God." Mr. Chapman favored the resolution, since "the ministers would gladly attend and render the services without compensation." Mr. Gehon objected on the ground that "it would not be economical, for the Convention sat at an expense of $200 to $300 per day, and time was money." Mr. Hall moved to amend the resolution so that the exercise of prayer might "commence at least one half hour before the assembling of the Convention." But Mr. Chapman thought that such a provision would be an insult to the Clergy and to "those who believed in the superintendence of Almighty God." Mr. Kirkpatrick said that he too believed in a "superintending Providence" that "guided and controlled our actions." He was a firm believer in Christianity, but he "did not wish to enforce prayer upon the Convention." Prayer, he argued, was a moral precept which could not be enforced without violating or infringing the "natural right" of the members to worship God each in his own way. If "we can enforce this moral obligation, then we have a right . . . . to make every member of this Convention go upon his knees fifty time a day." Mr. Kirkpatrick cared nothing for precedent. "This was a day of improvement. Let those who believed so much in prayer, pray at home." After all "public prayer was too ostentatious." Mr. Sells was shocked, and would "regret to have it said of Iowa that she had so far travelled out of Christendom as to deny the duty of prayer." Ex-Governor Lucas, who was a member of the Convention, was astonished at Mr. Hall's amendment. He said that "if ever an assemblage needed the aid of Almighty Power, it was one to organize a system of Government." Furthermore, he believed that "it was due to the religious community, and to our own character" to have prayer. To reject the resolution would, he thought, "give us a bad name abroad." Mr. Hooten reminded Lucas of the story told of Franklin, who, when a boy, asked his father why he did not say grace over the whole barrel of pork at once. Mr. Hall was "opposed to any attempt on the part of the Convention to palm themselves off to be better than they really were, and above all other things, to assume a garb of religion for the purpose of giving themselves character." He doubted the efficacy of prayers invoked at political meetings, and cited an instance where a "Reverend gentleman" fervently prayed for the release of Dorr, the election of Polk and Dallas, and the triumph of Democratic principles. To believe in the efficacy of such a prayer implied that "Deity was a Democrat." Now, "if the Almighty was a Democrat, he would perhaps grant the prayer; if not a Democrat he would not grant it." Mr. Hall desired to know what was to be prayed for in the Convention. As for himself, "he would pray as did the man in New Orleans, that God would 'lay low and keep dark,' and let us do the business of the Convention." Prayers in the Convention were, he thought, inappropriate. "There were places where the Almighty could not be approached in a proper spirit--and this was one." Mr. Bailey asked the members who voted against taking papers on the grounds of economy to be consistent and vote against this resolution to have prayers. It would save some two or three hundred dollars. Then, too, he thought that "people were becoming more liberal in [their religious] sentiment. No man could say that he ever opposed another on account of religion; he respected men who were sincerely religious; but he wanted to have his own opinions." Mr. Bailey feared that members might be compelled, under the resolution, "to hear what they were opposed to. This was contrary to the inalienable rights of man. If members did not feel disposed to come, it took away their happiness, contrary to the Declaration of Independence and the principle laid down by Thomas Jefferson, the Apostle of Liberty." Mr. Cutler said that "he had not lived a great while, but long enough not to be afraid of meeting such a question openly." He opposed the resolution and desired the yeas and nays recorded on the motion. Mr. Fletcher "regretted the opposition that he saw, and was unwilling that it should go forth to the world that Iowa refused to acknowledge a God." Mr. Evans did not believe in progression to the exclusion of prayer. He favored "providing a room for those who did not wish to hear prayers." Mr. Hepner opposed the resolution because he thought that it was inconsistent with the principle of religious freedom as set forth in the Bill of Rights. Mr. Shelleday wished to represent the moral and religious feelings of his constituents by supporting the resolution. Mr. Quinton thought that his constituents were as moral as those of Mr. Shelleday. But he "did not believe praying would change the purposes of Deity, nor the views of members of the Convention." "In the name of Heaven," he exclaimed, "don't force men to hear prayers." By a vote of forty-four to twenty-six the resolution was indefinitely postponed. The liberal religious spirit of the pioneers is further evidenced by the principle of toleration which was incorporated into section four of the Bill of Rights. As introduced by the Committee the section provided that "no religious test shall be required as qualification for any office or public trust, and no person shall be deprived of any of his rights, privileges, capacities, or disqualified for the performance of any of his duties, public or private, in consequence of his opinion on the subject of religion." Mr. Grant thought that the report "was meant to cover _everything_." But, to make sure that it did not exclude Atheists from giving testimony in the courts, Mr. Galbraith moved to insert the words "or be rendered incompetent to give testimony in any court of law or equity." Mr. Lowe, of Muscatine, favored leaving the law on this subject as it was; that is, he thought that "Atheists should not be admitted to give testimony" because "there was nothing that such a person could swear by. An oath called upon Deity to witness the truth of what was said, and to withdraw his favor from the person if it was untrue. Atheists consequently could not take an oath." It would be "unsafe" to permit them to testify. Mr. Hempstead wanted to "do away with this inquiring into a man's religious opinions. He desired to keep it out of the Constitution. It was the fear of the penalties of perjury that restrained men from stating what was not true--not future punishment." Mr. Kirkpatrick thought that to refuse to allow Atheists to testify would be an "infringement of the natural rights of man." Mr. Grant said that "he hoped this Convention would take high grounds upon this subject and silence . . . . these inquiries into men's belief, and exclusions for opinion's sake." When the test vote was taken it was found that only ten members of the Convention were willing to deny to Atheists the right to give testimony in the courts. An interesting debate on salaries led to the adoption of section thirty-five, Article IV., of the Constitution which fixed the compensation of the State officers "for the first ten years after the organization of the government." The discussion was provoked by a report from the Committee on State Revenue in which the following salaries were recommended: For Governor, $1000; for Secretary of State, $500; for Treasurer, $400; for Auditor, $700; for Superintendent of Public Instruction, $700; and for Judges of the Supreme Court, $800. Several motions were made which aimed to increase slightly the sums recommended by the Committee; but the bent of the Convention was manifestly in favor of a reduction of salaries all along the line. Sums ranging from $600 to $1200 were suggested for the Governor. Mr. Hooten "thought the salary was about right at $1000. The Governor was rather than else considered as public property, would have to entertain a good deal of company, &c., and should have a pretty liberal salary." Mr. Davidson said that "he came here for low salaries. He did not like $1000, but $1200 was worse." The Convention finally agreed upon $800 as a proper salary for the Governor of the State of Iowa. No cut was made in the sum ($500) reported for the Secretary of State; but the Treasurer's salary was reduced to $300. The Convention was willing that the Judges of the Supreme Court should receive the same pay as the Governor, that is, $800. The Auditor's salary received the most attention. The Committee on State Revenue had recommended $700. "Mr. Grant moved to strike out $700, which would leave the salary blank." Ex-Governor Lucas hoped that the salaries would not be reduced so low that competent men could not afford to accept them. Mr. Chapman "desired to pay a fair price for services rendered, but he was not willing to pay a single dollar for dignity. He did not want to have men paid to live as gentlemen, with no services to perform. . . . . What were the duties of Auditor, that they could not be performed for a salary of $500 or $600? A farmer toiled from the rising of the sun to its going down, and at the end of the year had not perhaps $100;--there were hundreds of men qualified for that office who labored the whole year for less than half of $700. In this country we are all poor, and have to do with but little." Mr. Strong came to the Convention with a "desire for economy, and felt disposed to go for as low salaries as any man; but he thought gentlemen were disposed to reduce them too low." Mr. Hempstead thought that the Convention was "running this thing of economy into the ground." He knew that there were men who would take the offices at almost any salary; but "they would plunder to make it up." Mr. Quinton declared that the services rendered by the Auditor were not worth more than $400. He would "continue to advocate economy in the State offices, whether it was displeasing to some gentlemen or not." Mr. Fletcher supported the recommendation of the Committee on State Revenue because the object was to secure as Auditor a man of "the best business talents." Mr. Hall observed that the proposition to pay "such large salaries to our officers was based upon a misunderstanding of the importance of our little State. We were just commencing to totter, and not to walk." Mr. Harrison said "we were in a youthful condition, and were poor, and we could not afford to pay such salaries as the great and wealthy State of Ohio." Furthermore, "he wanted the officers to share something of the hardships and privations of the citizens. He would not have them gentlemen of leisure, walking about the streets, talking with their friends, &c., with plenty of money in their pockets. An honest man would perform the duties of Auditor as well for $300 as $1000. If he was not honest we did not want him." Mr. Bissell favored a reduction. "He did not want to support government officers at high salaries, to ride about in their coaches and sport gold spectacles. He did not want them paid for giving wine parties, and electioneering the Legislature. They should walk from their residences to their offices, as other citizens." And so the salary of Auditor was fixed at $500. What wonder that Mr. Hempstead "felt disposed to make a motion that no gentleman or man of respectability should be appointed to any office under the Government of the State of Iowa." From the fragments of the debates which were chronicled in the newspapers of the Capital, it is clear that the Convention of 1844, in providing for the exercise of executive power in Iowa, aimed (1) to make the Chief Magistracy a representative institution and (2) to limit the influence of the Governor in legislation. The Committee on the Executive Department, of which the venerable Ex-Governor Lucas was the chairman, reported in favor of vesting the supreme executive power in "a Governor, who shall hold his office for four years." A Lieutenant Governor "was to be chosen at the same time and for the same term." Furthermore, section five of the report provided that "no person shall be eligible to the office of Governor or Lieutenant Governor more than eight years in any term of twelve." Mr. Chapman made a motion to strike out the provisions relative to a Lieutenant Governor, "which motion he enforced upon the principle of economy, and the non-necessity of the office." But the Convention refused to take a step so radical. Mr. Langworthy moved to strike out _four_ and insert _two_ "as the term for which the Governor should hold his office." This was "to test whether any officer in the State of Iowa was to hold his office more than two years." Mr. Langworthy "wanted the whole government to be changed once in two years." His motion prevailed. On the motion of Mr. Peck section five of the report, which aimed to prevent the Governor and Lieutenant Governor from succeeding themselves in office more than once in twelve years, was stricken out. The question of an executive veto on legislation naturally received considerable attention, since the administration of Lucas was still fresh in the minds of many members of the Convention. The Committee on the Legislative Department had reported a form of executive veto which was so limited that it could be passed over by an ordinary majority in the two branches of the General Assembly. Mr. Peck favored a two-thirds majority of the members present. But Mr. Hall moved to strike out the whole section and said that "in making this Constitution he wished to throw off the trammels of fashion and precedent. He had so pledged himself to his constituents. This veto power was a trammel, and an unnecessary restraint on the freedom of legislation. The law of progress required that it should be abolished." Mr. Bailey "thought the veto power was a valuable one; it was the people's power . . . . The Governor was more the representative of the people, than the Representatives themselves. The Representatives were chosen by sections, and represented local interests, and they might continue to pass bad laws. But the Governor had no local feelings." Mr. Peck said that "the veto power was a qualified negative to prevent hasty and ill-advised legislation." He declared that the executive veto was a wholesome remedy for over-legislation. "It was a Democratic feature of any Constitution." Ex-Governor Lucas took part in the discussion. "We were," he said, "engaged in making a Constitution to protect the rights of the people. The veto was one of the instruments that had been used to defend the people's rights . . . . It might have been exercised imprudently at times, but that was not a good argument against the power." Mr. Hall discussed the question at length. "Gentlemen," he said, "supposed that the Legislature might be corrupt--he would suppose on the other hand, that the Governor might he corrupt, and his supposition was as good as theirs. Some gentlemen were afraid of the tyranny of the representatives--he would suppose that the Governor would be the tyrant; or he would suppose that the Governor would combine with the Legislature, and they would all be corrupt and tyrannical together. A number of persons were not so liable to corruption and combination as a single individual;--just as numbers increased the probability of corruption decreased." He declared that "there was no need of the power in this Territory." The Convention finally agreed upon the form of the limited executive veto as provided for in the Federal Constitution. Not even the Judiciary was spared from the influence of Western Democracy as it rose up and asserted itself in the Convention of 1844. The day of executive appointment and life tenure of judges had passed or was passing. The Committee on the Judiciary recommended that "the Judges of the Supreme Court and District Court shall be elected by the joint vote of the Senate and House of Representatives and hold their offices for six years;" but a minority report, introduced by Mr. Fletcher, proposed that all of the judges be elected by the qualified voters of the State. In discussing this question the Convention desired to follow the wishes of the people; but it was not known that the people themselves really desired to elect the Judges. On the other hand there is no evidence that anyone favored executive appointment. So the question before the Convention was: Shall the Judges be elected by the people or shall they be chosen by the General Assembly? Mr. Hempstead favored direct election by the people on the assumption "that in a Republican or Democratic government the people were sovereign, and all power resided in them." He did not believe that the influence of politics would be worse in the election of Judges by the people than in the election of members of the General Assembly. "Joint ballot," he declared, "was one of the most corrupt methods of election ever devised." Mr. Bailey did not doubt "the capacity of the people to elect their Judges;" but he thought that "there was real danger in the Judges becoming corrupt through political influences. They were liable to form partialities and prejudices in the canvass, that would operate on the bench." He had "no objection to the people electing the Judges; but he did not think they desired the election--they had never asked to have it." Ex-Governor Lucas said "the question would seem to be, whether there was any officer in the government whose duties were so sacred that they could not be elected by the people. All officers were servants of the people, from the President down." He repudiated the idea that the people were not capable of electing their own servants. Mr. Quinton supported the proposition to elect the Judges, since "this was said to be an age of progress." In his opinion "the ends of Justice would be better served by elections by the people than by the Legislature." Mr. Kirkpatrick declared that the selection of Judges by the General Assembly was "wrong both in principle and in policy." He was opposed to "voting by proxy." He believed that "we should choose our Judges ourselves and bring them often to the ballot box." Mr. Fletcher "came pledged to go for the election of Judges by the people." He believed that "the surest guaranty, which could be had for the fidelity and good conduct of all public officers, was to make them directly responsible to the people." The outcome of the discussion was a compromise. The Judges of the Supreme Court were to be named by the General Assembly; but the Judges of the District Court were to be elected by the people. That the pioneers of Iowa, including the members of the Convention of 1844, were Democratic in their ideals is certain. They believed in Equality. They had faith in Jeffersonianism. They clung to the dogmas of the Declaration of Independence. They were sure that all men were born equal, and that government to be just must be instituted by and with the consent of the governed. Such was their professed philosophy. Was it universally applicable? Or did the system have limitations? Did the Declaration of Independence, for example, include negroes? The attitude of the Convention on this perplexing problem was perhaps fairly represented in the report of a Select Committee to whom had been referred "a petition of sundry citizens praying for the admission of people of color on the same footing as white citizens." This same Committee had also been instructed to inquire into the propriety of a Constitutional provision prohibiting persons of color from settling within the State. In the opening paragraph of their remarkable report the Committee freely admitted (1) "that all men are created equal, and are endowed by their Creator with inalienable rights," and (2) that these rights are "as sacred to the black man as the white man, and should be so regarded." At the same time they looked upon this declaration as "a mere abstract proposition" which, "although strictly true when applied to man in a state of nature, . . . . becomes very much modified when man is considered in the artificial state in which government and society place him." The Committee then argued that "government is an institution or an association entered into by man, the very constitution of which changes or modifies to a greater or less extent his natural rights. Some are surrendered others are modified . . . . In forming or maintaining a government it is the privilege and duty of those who are about to associate together for that purpose to modify and limit the rights or wholly exclude from the association any and every species of persons who would endanger, lessen or in the least impair the enjoyment of these rights. We have seen that the application of this principle limits the rights of our sons, modifies the privileges of our wives and daughters, and would not be unjust if it excluded the negro altogether.--'Tis the party to the compact that should complain, not the stranger. Even hospitality does not sanction complaint under such circumstances. True, these persons may be unfortunate, but the government is not unjust." Thus the problem of negro citizenship was not one of abstract right, but must be settled on grounds of expediency. "Would the admission of the negro as a citizen tend in the least to lessen, endanger or impair the enjoyment of our governmental institutions?" The answer of the Committee reads as follows: "However your committee may commiserate with the degraded condition of the negro, and feel for his fate, yet they can never consent to open the doors of our beautiful State and invite him to settle our lands. The policy of other States would drive the whole black population of the Union upon us. The ballot box would fall into their hands and a train of evils would follow that in the opinion of your committee would be incalculable. The rights of persons would be less secure, and private property materially impaired. The injustice to the white population would be beyond computation. There are strong reasons to induce the belief that the two races could not exist in the same government upon an equality without discord and violence, that might eventuate in insurrection, bloodshed and final extermination of one of the two races. No one can doubt that a degraded prostitution of moral feeling would ensue, a tendency to amalgamate the two races would be superinduced, a degraded and reckless population would follow; idleness, crime and misery would come in their train, and government itself fall into anarchy or despotism. Having these views of the subject your committee think it inexpedient to grant the prayer of the petition." Nor was it thought expedient by the Committee to introduce an article into the Constitution which would exclude altogether persons of color from the State, notwithstanding the fact that "the people of Iowa did not want negroes swarming among them." Even Mr. Langworthy, who had been instructed by his constituents "to get something put into the Constitution by which negroes might be excluded from the State," felt that the matter could safely be left with the General Assembly. Mr. Grant thought that an exclusion clause in the Constitution would "endanger our admission into the Union." Although the report was laid on the table, it nevertheless represented the dominant opinion then prevalent in Iowa. Our pioneer forefathers believed that the negroes were men entitled to freedom and civil liberty. But more than a score of years had yet to elapse before there was in their minds no longer "a doubt that all men [including the negroes] are created free and equal." When the delegates were elected to the Convention of 1844 the people of the Territory were still suffering from the effects of over-speculation, panic, and general economic depression. Many of them still felt the sting of recent bank failures and the evils of a depreciated currency. Hence it is not surprising to learn from the debates that not a few of the delegates came to the Convention instructed to oppose all propositions which in any way favored corporations, especially banking corporations. The opposition to banks and bank money was not local; it was National. The bank problem had become a leading party issue. Democrats opposed and Whigs generally favored the banks. It was so in Iowa, where the agitation was enlivened by the presence of the "Miners' Bank of Du Buque." This institution, which was established in 1836 by an act of Congress, had been the local storm center of the bank question. Prior to 1844 it had been investigated four times by the Legislative Assembly of the Territory. In the Convention a minority as well as a majority report was submitted from the Committee on Incorporations. The majority report provided: (1) that one bank may be established with branches, not to exceed one for every six counties; (2) that the bill establishing such bank and branches must be (a) passed by a majority of the members elected to both houses of the General Assembly, (b) approved by the Governor, and (c) submitted to the people for their approval or rejection; (3) that "such bank or branches shall not have power to issue any bank note or bill of a less denomination than ten dollars;" (4) that "the stockholders shall be liable respectively, for the debts of said bank, and branches;" and (5) that "the Legislative Assembly shall have power to alter, amend, or repeal such charter, whenever in their opinion the public good may require it." The same majority report provided further: (1) that "the assent of two-thirds of the members elected to each house of the Legislature shall be requisite to the passage of every law for granting, continuing, altering, amending or renewing any act of Incorporation;" (2) that no act of incorporation shall continue in force for more than twenty years; (3) that the personal and real property of the individual members of a corporation shall be liable for the debts of such corporation; and (4) that "the Legislative Assembly shall have power to repeal all acts of incorporation by them granted." The minority report, which was signed by two members of the Committee, provided that "no bank or banking corporation of discount, or circulation, shall ever be established in this State." In the discussion that followed the introduction of these reports the Whig members of the Convention were inclined to keep restrictions out of the Constitution and leave the whole question of establishing banks to the General Assembly. The Democrats were not united. The more radical supported the minority report; others favored the establishment of banks well guarded with restrictions. Mr. Hempstead said that he was opposed to all banks as a matter of principle. He pointed out that there were three kinds of banks--banks of deposit, banks of discount, and banks of circulation. "To this last kind he objected. They were founded in wrong, and founded in error." He declared that such corporations should be excluded altogether from the State. Indeed, he said that "if the whole concern--banks, officers and all--could be sent to the penitentiary he would be very glad of it." Mr. Quinton thought that "the whole concern of Banks, from big A down, were a set of swindling machines, and now was the time for the people of Iowa to give an eternal quietus to the whole concern." Mr. Ripley declared that "Banks had always been a curse to the country . . . . He believed Banks to be unconstitutional, and oppressive upon the laboring classes of the community." Mr. Bailey was an anti-Bank man; "but he knew many Democrats who were in favor of Banks under proper restrictions." Mr. Hall said that "Banking was a spoiled child; it had been nursed and petted till it had become corrupt." He objected to banking "because it conferred privileges upon one class that other classes did not enjoy." He believed that the people would find that "a bank of earth is the best bank, and the best share a plough-share." Mr. Gehon wanted to put his "feet upon the neck of this common enemy of mankind." Ex-Governor Lucas, who represented the conservative Democrats, said that this was not a party issue but rather a question of expediency. He was in favor of leaving it to the Legislature and the people. Mr. Lowe said that "the truth was, this matter, like all other questions of internal policy, should be left where all the other States of the Union have left it, to the sovereign will of a free and independent people." Mr. Hawkins said that "the Whigs were in favor of leaving this matter to the action of future Legislatures and to the people. When a proposition was made for a charter, let the details be decided by them with all the lights before them at that time." As finally agreed to in the Convention, article nine of the Constitution, which dealt with corporations, contained the following provisions. First, no act of incorporation shall continue in force for more than twenty years without being re-enacted by the General Assembly. Secondly, the personal and real property of the members of a corporation shall at all times be liable for the debts of such corporation. Thirdly, the General Assembly "shall create no bank or banking institution, or corporation with banking privileges" without submitting the charter to a vote of the people. Fourthly, the General Assembly shall have power to repeal all acts of incorporation by them granted. Fifthly, the property of the inhabitants of the State shall never be used by any incorporated company without the consent of the owner. Sixthly, the State shall not become a stockholder in any bank or other corporation. In this form the question of banks and corporations was submitted to the people. On Friday morning, November the first, the Constitutional Convention of 1844 adjourned _sine die_ after a session of just twenty-six days. XI THE CONSTITUTION OF 1844 The Constitution of 1844 as submitted by the Convention to Congress and to the people of the Territory of Iowa contained thirteen articles, one hundred and eight sections, and over six thousand words. Article I. on "Preamble and Boundaries" acknowledges dependence upon "the Supreme Ruler of the Universe" and purports to "establish a free and independent government" in order "to establish justice, ensure tranquility, provide for the common defense, promote the general welfare, secure to ourselves and our posterity, the rights of life, liberty, and the pursuit of happiness." Article II. as the "Bill of Rights" declares that "all men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness." All political power is "inherent in the people;" for their "protection, security, and benefit" government is instituted; and they, the people, have "the right at all times, to alter, or reform the same, whenever the public good may require it." Following these classic political dogmas of the American Revolution is a rather exhaustive enumeration of the fundamental rights of the individual, which at various times and in various ways had found expression in the state papers and Constitutions of England and America, and which together constitute the domain of Anglo-Saxon liberty and freedom. Article III. defines the "Right of Suffrage" by limiting the exercise thereof to white male citizens of the United States, of the age of twenty-one years, who shall have been residents of the State six months next preceding the election, and of the county in which they claim a vote thirty days. Article IV. proclaims the theory of the separation of powers in sweeping terms, and prescribes the constitution of the law-making department. Herein the legislative authority was vested in a General Assembly, which was organized on the bicameral plan. The members of the House of Representatives were to be chosen for two years, those of the Senate for four years. The regular sessions of the General Assembly were to be held biennially. Article V. on the "Executive Department" provides that the "Supreme Executive power shall be vested in a Governor, who shall hold his office for two years; and that a Lieutenant Governor shall be chosen at the same time and for the same term." The Governor must be a citizen of the United States and have attained the age of thirty years. Article VI. organizes the "Judicial Department." It provides for a Supreme Court consisting of "a Chief Justice and two Associates," to be chosen by the General Assembly for a term of four years. The District Court was to "consist of a Judge, who shall reside in the district assigned him by law," and be elected by the people for the same term as the Judges of the Supreme Court. Article VII. provides that the "Militia" shall be composed of "all able bodied white male persons between the ages of eighteen and forty-five years," except such persons as are or may be especially exempted by law. All details relative to organizing, equipping, and disciplining the militia were left to the General Assembly. Article VIII. on "Public Debts and Liabilities" prohibited the General Assembly from contracting debts and obligations which in the aggregate would exceed one hundred thousand dollars. Article IX. placed restrictions upon banking and other business corporations. Article X. deals with "Education and School Lands." It provides for a "Superintendent of Public Instruction" who shall be chosen by the General Assembly. It directs the General Assembly to provide for a system of common schools. It declares also that the General Assembly "shall encourage, by all suitable means, the promotion of intellectual, scientific, moral and agricultural improvement." Article XI. outlines a system of local government which includes both the county and the township organization. The details are left to the General Assembly. Article XII. provides for "Amendments to the Constitution." In the case of partial revision of the Constitution, the specific amendment must be passed by two successive General Assemblies and ratified by the people. When it is desired to have a total revision of the fundamental law, the General Assembly submits the question of a Constitutional Convention to a direct vote of the people. Article XIII. provides a "Schedule" for the transition from the Territorial to the State organization. From the view-point of subsequent events the most significant provision of the Constitution of 1844 was the one which defined the boundaries of the future State. There is, however, no evidence that the members of the Convention foresaw the probability of a dispute with Congress on this point, although Governor Chambers in his message of December, 1843, had pointed out its possibility should the people of Iowa assume to give boundaries to the State without first making application to Congress for definite limits. It was on the question of boundaries that the Constitution of 1844 was wrecked. In the Convention the regular standing Committee on State Boundaries reported in favor of certain lines which were in substance the boundaries recommended by Governor Lucas in his message of November, 1839. Indeed, it is altogether probable that the recommendations of Robert Lucas were made the basis of the Committee's report. This inference is strengthened by the fact that the illustrious Ex-Governor was a member of the Committee. It will be convenient to refer to the boundaries recommended by the Committee as the _Lucas boundaries_. The Lucas boundaries were based upon the topography of the country as determined by rivers. On the East was the great Mississippi, on the West the Missouri, and on the North the St. Peters. These natural boundaries were to be connected and made continuous by the artificial lines of the surveyor. As to the proposed Eastern boundary there could be no difference of opinion; and it was generally felt that the Missouri river should determine the Western limit. On the South the boundary must necessarily be the Northern line of the State of Missouri. But the exact location of this line had not been authoritatively determined. During the administration of Lucas it was the subject of a heated controversy between Missouri and Iowa which at one time bordered on armed hostility. The purpose of the Convention in 1844 was not to settle the dispute but to refer to the line in a way which would neither prejudice nor compromise the claims of Iowa. The discussion of the Northern boundary was, in the light of subsequent events, more significant. As proposed by the Committee the line was perhaps a little vague and indefinite since the exact location of certain rivers named was not positively known. Some thought that the boundary proposed would make the State too large. Others thought that it would make the State too small. Mr. Hall proposed the parallel of forty-two and one-half degrees of North latitude. Mr. Peck suggested the parallel of forty-four. Mr. Langworthy, of Dubuque, asked that forty-five degrees be made the Northern limit. Mr. Langworthy's proposition met with considerable favor among the people living in the Northern part of the Territory who desired to increase the size of the State by including a considerable tract North of the St. Peters. Mr. Chapman suggests the existence of sectional feeling in the matter of boundaries when he says, in reply to Mr. Langworthy's argument, that "it was a kind of creeping up on the North which was not good faith to the South." On October 14 the report of the regular Committee on State Boundaries was referred to a Select Committee consisting of representatives from the twelve electoral districts. But this Committee made no changes in the original report except to make the Northern boundary a little more definite. As finally adopted by the Convention and incorporated into the Constitution of 1844, the boundaries of the State were as follows: "Beginning in the middle of the main channel of the Mississippi river opposite the mouth of the Des Moines river; thence up the said river Des Moines, in the middle of the main channel thereof, to a point where it is intersected by the Old Indian Boundary line, or line run by John C. Sullivan in the year 1816; thence westwardly along said line to the 'Old Northwest corner of Missouri;' thence due west to the middle of the main channel of the Missouri river; thence up in the middle of the main channel of the river last mentioned to the mouth of the Sioux or Calumet river; thence in a direct line to the middle of the main channel of the St. Peters river, where the Watonwan river (according to Nicollet's map) enters the same; thence down the middle of the main channel of said river to the middle of the main channel of the Mississippi river; thence down the middle of the main channel of said river to the place of beginning." In accordance with the act of the Legislative Assembly of February 12, 1844, and section six of the "Schedule" it was provided that the new Constitution, "together with whatever conditions may be made to the same by Congress, shall be ratified or rejected by a vote of the qualified electors of this Territory at the Township elections in April next." And the General Assembly of the State was authorized to "ratify or reject any conditions Congress may make to this Constitution after the first Monday in April next." At the same time it was made the duty of the President of the Convention to transmit a copy of the Constitution, along with other documents thereto pertaining, to the Iowa Delegate at Washington, to be by him presented to Congress as a request for the admission of Iowa into the Union. For such admission at an early day the Convention, as memorialists for the people of the Territory, confidently relied upon "the guarantee in the third article of the treaty between the United States and France" of the year 1803. It now remained for Congress and the people of the Territory to pass judgment upon the Constitution of 1844. XII THE CONSTITUTION OF 1844 SUBMITTED TO CONGRESS The second session of the Twenty-Eighth Congress opened on Monday, December 2, 1844. On December 9, Senator Tappan presented to the Senate the Constitution which had been framed by the Iowa Convention of 1844. It was referred at once to the Committee on the Judiciary. Three days later Augustus C. Dodge, Delegate from the Territory of Iowa, laid before the House of Representatives a copy of the same instrument together with an ordinance and a memorial from the Iowa Convention. Here the documents were referred to the Committee on Territories. On January 7, 1845, through Mr. Aaron V. Brown, the Committee on Territories reported a bill for the admission of Iowa and Florida into the Union. This bill was read twice and referred to the Committee of the Whole House on the State of the Union, wherein it was considered on the three days of February 10, 11, and 13. It passed the House of Representatives on February 13, 1844, by a vote of one hundred and forty-four to forty-eight. The day after its passage in the House of Representatives the bill was reported to the Senate. Here it was referred to the Committee on the Judiciary, from which it was reported back to the Senate without amendment on February 24. The Senate considered the measure on March 1, and passed the same without alteration by a vote of thirty-six to nine. On March 3, 1845, the act received the signature of President Tyler. The debate on the bill for the admission of Iowa under the Constitution of 1844 is of more than local interest since it involved a consideration of the great question of National Politics in its relation to the growth of the West and the admission of new States. When Iowa applied for State organization in 1844, Florida had been waiting and pleading for admission ever since the year 1838. The reason for this delay was very generally understood and openly avowed. States should be admitted not singly but in pairs. Florida was waiting for a companion. And so in 1844 it fell to Iowa to be paired with the peninsula. The principle involved was not new; but never before had two States been coupled in the same act of admission. The object sought was plainly the maintenance of a _balance of power_ between the North and the South. But back of the principle of the balance of power, and for the preservation of which that principle was invoked, stood Slavery. The institution of free labor in the North must be balanced by the institution of slave labor in the South, since both must be preserved. And so the admission of Iowa and Florida had to be determined in reference to this all-devouring question of National Politics. Upon examination it was found that the proposed Constitution of Florida not only sanctioned the institution of Slavery, but it positively guaranteed its perpetuation by restraining the General Assembly from ever passing laws under which slaves might be emancipated. On the other hand the Constitution of Iowa, although it did not extend the privilege of suffrage to persons of color, provided that "neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this State." Now it so happened that the opposing forces of slave labor and free labor, of "State Rights" and "Union," came to an issue over the boundaries of the proposed State of Iowa. In the bill for admission, as reported by the House Committee on Territories, the boundaries asked for by the Iowa Convention in the Constitution submitted by them were retained without alteration. But Mr. Duncan, of Ohio, had other limits to propose. He would have the new State of Iowa "bounded by the Mississippi on the East, by a parallel of latitude passing through the mouth of the Mankato, or Blue Earth river, on the North, by a meridian line running equidistant from the seventeenth and eighteenth degrees of longitude West from Washington on the West, and by the Northern boundary of the Missouri on the South." Mr. Duncan pointed out that these were the boundaries proposed by Nicollet in the report which accompanied the publication in January, 1845, of his map of the basin of the upper Mississippi. He preferred the _Nicollet boundaries_ because (1) they were "the boundaries of nature" and (2) at the same time they left sufficient territory for the formation of two other States in that Western country. On the other hand, Mr. Brown, Chairman of the Committee on Territories, said that the question of boundaries had been carefully investigated by his Committee, "and the conclusion to which they had come was to adhere to the boundary asked for by the people of Iowa, who were there, who had settled the country, and whose voice should be listened to in the matter." Mr. Belser, of Alabama, was opposed to the Duncan amendment since it "aimed to admit as a State only a portion of Iowa at this time. This he would have no objection to, provided Florida is treated in the same way. He was for receiving both into the Confederacy, with like terms and restrictions. If Iowa is to come in without dismemberment, then let Florida enter in like manner; but if Iowa is divided, then let Florida be divided also." Mr. Vinton, of Ohio, was the most vigorous champion of the Duncan amendment. He stood out firmly for a reduction of the boundaries proposed by the Iowa Convention because the country to the North and West of the new State, "from which two other States ought to be formed," would be left in a very inconvenient shape, and because the formation of such large States would deprive the West of "its due share of power in the Senate of the United States." Mr. Vinton was "particularly anxious that a State of unsuitable extent should not be made in that part of the Western country, in consequence of the unwise and mistaken policy towards that section of the Union which has hitherto prevailed in forming Western States, by which the great valley of the Mississippi has been deprived, and irrevocably so, of its due share in the legislation of the country." As an equitable compensation to the West for this injustice he would make "a series of small States" on the West bank of the Mississippi. Furthermore, Mr. Vinton did not think it politic to curtail the power of the West in the Senate of the United States by the establishment of large States, since in his opinion "the power of controlling this government in all its departments may be more safely intrusted to the West than in any other hands." The commercial interests of the people of the West were such as to make them desirous of protecting the capital and labor both of the North and the South. Again, he declared that if disunion should ever be attempted "the West must and will rally to a man under the flag of the Union." "To preserve this Union, to make its existence immortal, is the high destiny assigned by Providence itself to this great central power." The arguments for restriction prevailed, and the Duncan amendment, which proposed to substitute the _Nicollet boundaries_ for the _Lucas boundaries_, passed the House of Representatives by a vote of ninety-one to forty. In the Senate the bill as reported from the House was hurried through without much debate. Here the question of boundaries seems to have received no consideration whatever. There were, however, strong objections in some quarters to coupling Iowa with Florida in the matter of admission. Senator Choate, of Massachusetts, called attention to the fact that this was the first instance in the history of the admission of States where it was proposed to admit two States by the same act. Under the circumstances he could welcome Iowa into the Union, but he could not give his hand to Florida. It could not be argued that Florida must be admitted to balance Iowa, since the admission of Texas was already more than a balance for the northern State. However appropriate it might have been at an earlier day to pair Florida with Iowa, it ought not to be thought of at this time. For, since the introduction of the bill, "we have admitted a territory on the southwest much larger than Iowa and Florida together--a territory that may be cut up into forty States larger than our small States, or five or six States as large as our largest States. Where and how is the balance to be found by the North and East for Texas? Where is it to be found but in the steadfast part of America? If not there, it can be found nowhere else. God grant it may be there! Everything has been changed. An empire in one region of the country has been added to the Union. Look east, west, or north, and you can find no balance for that." Senator Evans touched upon the great issue when he proposed an amendment which provided that so far as Florida was concerned the bill should not take effect until the people had removed from their Constitution certain restrictions on the General Assembly relative to the emancipation of slaves and the emigration and immigration of free negroes or other persons of color. He was opposed to discriminations against free persons of color. Why, then, retorted a Senator from the South, do you not direct your artillery against the Constitution of Iowa which does not allow a colored person to vote? No good reason had been urged showing why Iowa should not be admitted into the Union. All of the essential qualifications for statehood were present--a large and homogeneous population, wealth, _morale_, and republican political institutions. Congress did not pass an adverse judgment on the Constitution of 1844, since that instrument provided for a government which was Republican in form and satisfactory in minor details. Only one change was demanded, and that was in relation to the proposed boundaries. Here Congress insisted upon the _Nicollet boundaries_ as incorporated in the act of admission of March 3rd, 1845, in opposition to the _Lucas boundaries_ as provided for in the Constitution of 1844. XIII THE CONSTITUTION OF 1844 DEBATED AND DEFEATED BY THE PEOPLE While Congress was discussing the boundaries of Iowa and carefully considering the effect which the admission of the new State might possibly have upon matters of National concern, the Constitution of 1844 was being subjected to analysis and criticism throughout the Territory. Moreover, it is interesting to note that the only provision of the Constitution which was held up and debated in Congress was the very one which was generally accepted by the people of the Territory without comment. Whigs and Democrats alike were satisfied with the _Lucas boundaries_. Nor did the people of Iowa at this time think or care anything about the preservation of the "balance of power." Their adoption of, and adherence to, the _Lucas boundaries_ was founded upon local pride and commercial considerations. Opposition to the Constitution of 1844 was at the outset largely a matter of partisan feeling. The Whigs very naturally opposed the ratification of a code of fundamental law which had been formulated by a Democratic majority. Then, too, they could not hope for many of the Federal and State offices which would be opened to Iowans after the establishment of Commonwealth organization. And so with genuine partisan zeal they attacked the instrument from Preamble to Schedule. Nothing escaped their ridicule and sarcasm. By the Democratic press they were charged with "an intent to keep Iowa out of the Union, so that her two Senators shall not ensure the vote of the United States Senate to Mr. Polk at the next session." But the Whigs were not altogether alone in their opposition to the proposed Constitution, not even during the early weeks of the campaign. There was some disaffection among the Democrats themselves, that is, among the radicals who thought that the new code was not sufficiently Jeffersonian. The editor of the _Dubuque Express_, for example, was severe in his criticisms, but he intimated that he would vote for the Constitution in the interests of party discipline. The _Bloomington Herald_, on the other hand, although a strong organ of the Democracy, emphatically declared through its editorial columns that "admission under the Constitution would be a curse to us as a people." As a party, however, the Democrats favored the Constitution of 1844, defended its provisions, and urged its adoption by the people. They held that as a code of fundamental law it was all that could be expected or desired, and with a zeal that equaled in every way the partisan efforts of the Whigs they labored for its ratification at the polls. An examination of the arguments as set forth in the Territorial press reveals two classes of citizens who opposed ratification. First, there were those who were hostile to the Constitution because they did not want State government. Secondly, there were others who could not subscribe to the provisions and principles of the instrument itself. The out-and-out opponents of State government continued to reiterate the old argument of "Economy." They would vote against the Constitution in order to prevent an increase in the burdens of taxation. This argument of itself could not possibly have defeated ratification, since there was at this time an overwhelming majority who desired admission into the Union. And yet the plea of economy (which always appealed strongly to the pioneers) undoubtedly contributed somewhat to the defeat and rejection of the Constitution of 1844. Prior to the first of March, 1845, opposition to ratification was expressed chiefly in objections to the proposed Constitution. As a whole that instrument was characterized as "deficient in style, manner, and matter, and far behind the spirit of this enlightened age." It could not even be called a code of fundamental law, since it contained legislative as well as Constitutional provisions. It confounded statute law with Constitutional law. In its detailed provisions and clauses the Constitution of 1844 was still less satisfactory to the opponents of ratification. They seemed to see everywhere running through the whole instrument erroneous principles, inexpedient provisions, and confused, inconsistent, and bungling language. They declared that the legislative, executive, and judicial departments of the government were not sufficiently separate and distinct. The principle of the separation of powers was clearly violated (1) by giving to the Executive the power of veto, and (2) by allowing the Lieutenant Governor to participate in the debates of the Senate. Nor were the popular powers--namely, the powers of sovereignty--always differentiated from the delegated powers--or, the powers of government. The Constitution was roundly abused because it provided for the election of the Judges of the inferior courts by the people. To the minds of the critics the office of Judge was too sacred to be dragged into partisan politics and through corrupting campaigns. Judges ought not to be responsible to the people, but solely to their own consciences and to God. Likewise, it was contrary to the principles of efficient and harmonious administration to provide for the popular election of the Secretary of State, Auditor of Public Accounts, and Treasurer. Such positions should be filled by executive appointment. Again, the Constitution was attacked because it provided for biennial instead of annual elections. The salaries fixed for State officers were "niggardly and insufficient." The method prescribed for amending the Constitution was altogether too tedious and too uncertain. The provisions relative to corporations were too narrow, since they restrained the General Assembly from providing for internal improvements. By requiring all charters of banks and banking institutions to be submitted to a direct vote of the people, the Constitution practically prevented the organization and establishment of such institutions. Finally, objections were made to that section of the Bill of Rights which provided that no evidence in any court of law or equity should be excluded in consequence of the religious opinions of the witness. To some it was horrifying to think of admitting the testimony of non-believers and Atheists. Such were the arguments against ratification which were advanced by the opponents of the Constitution of 1844. However, that instrument was not so defective as pictured, since back of all objections and all opposition was the mainspring of partisan politics. The Whigs were bent on frustrating the program of the Democrats. Were they able to defeat the Constitution on the issue of its imperfections? No, not even with the assistance of the radical Democrats! But fortunately for the cause of the opposition a new and powerful objection to ratification appeared in the closing weeks of the campaign. The news that Congress had, by the act of March 3, 1844, rejected the boundaries prescribed by the Iowa Convention reached the Territory just in time to determine the fate of the Constitution of 1844. A close examination of this act of Congress revealed the fact that the fourth section thereof conditioned the admission of Iowa upon the acceptance of the _Nicollet boundaries_ "by a majority of the qualified electors at their township elections, in the manner and at the time prescribed in the sixth section of the thirteenth article of the constitution adopted at Iowa City the first day of November, anno Domini eighteen hundred and forty-four, or by the Legislature of said State." Moreover, it was found that the provisions of the Constitution of 1844 just quoted read as follows: "This constitution, together with whatever conditions may be made to the same by Congress, shall be ratified or rejected by a vote of the qualified electors of this Territory at the township elections in April next, in the manner prescribed by the act of the Legislative Assembly providing for the holding of this Convention: _Provided, however_, that the General Assembly of this State may ratify or reject any conditions Congress may make to this Constitution after the first Monday of April next." In the light of these provisions it appeared to the people of Iowa that a vote cast for the Constitution would be a vote for the Constitution as modified by the act of Congress. This view was altogether plausible since no provision had been made for a separate ballot on the conditions imposed by Congress. And so it was thought that a ratification of the Constitution would carry with it an acceptance of the _Nicollet boundaries_, while a rejection of the Constitution would imply a decided stand in favor of the _Lucas boundaries_. Those who during the fall and winter had opposed ratification now renewed their opposition with augmented zeal. The Whigs turned from their petty attacks upon the provisions of the Constitution to denounce the conditions imposed by Congress. They declared that the Constitution must be defeated in order to reject the undesirable _Nicollet boundaries_. The boundary question now led a considerable number of the more moderate Democrats to oppose ratification. Prominent leaders of the party took the stump and declared that it would be better to reject the Constitution altogether than to accept the limited boundaries proposed by Congress. They declared that the "natural boundaries" as prescribed by the Constitution should not be curtailed, and called upon all good Democrats to vote down their own Constitution. Many, however, continued to support ratification, believing that the boundaries imposed by the act of Congress were the best that could be obtained under the existing conditions. Augustus Dodge, the Iowa Delegate in Congress, took this stand. When the Constitution of 1844 was before Congress Mr. Dodge had stood firmly for the boundaries as proposed in that instrument. But on the day after the act of March 3, 1845, had been signed by the President, he addressed a letter to his constituents in Iowa advising them to ratify the Constitution and accept the _Nicollet boundaries_ as prescribed by Congress. Mr. Dodge thought that the State would still be large enough. He knew that the country along the Missouri river was fertile, but "the dividing ridge of the waters running into the Mississippi and Missouri rivers, called the 'Hills of the Prairie,' and which has been excluded from our new State, is barren and sterile." He called attention to the fact that the boundaries prescribed by Congress were those suggested by Mr. Nicollet, a United States Geologist, "who had accurately and scientifically examined the whole country lying between the Mississippi and Missouri rivers." Then he pointed out the influences which operated in reducing the boundaries, and concluded by saying: "Forming my opinion from extensive inquiry and observation, I must in all candor inform you that, whatever your decision on the first Monday in April next may be, we will not be able hereafter under any circumstances to obtain _one square mile more_ for our new State than is contained within the boundaries adopted by the act of Congress admitting Iowa into the Union." From the returns of the election it was evident that Mr. Dodge's constituents either did not take him seriously or were sure that he was mistaken in his conclusions. The Constitution of 1844 was rejected by a majority of 996 votes. The result of the election was such as to "astound the friends of the Constitution and to surprise everybody, both friend and foe." Those who had labored for ratification throughout the campaign abused the Whigs for opposing so perfect an instrument, censured the Convention for submitting the Constitution to Congress before it had been ratified by the people, and preferred general charges of misrepresentation. The friends of the Constitution clamored loudly for a resubmission of the code of fundamental law as it had come from the Convention, so that the people might have an opportunity to pass upon it free from conditions and without misrepresentation. Within a few weeks the seventh Legislative Assembly of the Territory was to meet in regular session. The members would be asked to give the Constitution of 1844 another chance. XIV THE CONSTITUTION OF 1844 REJECTED A SECOND TIME On Monday the fifth day of May, 1845, the Legislative Assembly of the Territory met in regular session. Three days later a message from Governor Chambers was presented and read to the members, whereby they were informed that the vote in April had certainly resulted in the rejection of the Constitution. "And," continued the Governor, "there is reason to believe that the boundary offered us by Congress had much influence in producing that result." Believing that the rejection of the Constitution by the people called for some action on the part of the Assembly, Governor Chambers proposed and recommended "that the question be again submitted to the people, whether or not they will at this time have a Convention." But a majority of the Assembly were in favor of re-submitting the Constitution of 1844 as it had come from the hands of the Convention. A bill to re-submit was accordingly introduced and hurried through to its final passage. A formal and solemn protest from the minority, signed by nine members and entered on the journal of the House of Representatives, set forth the leading objections to re-submission. 1. The Assembly had no delegated power to pass such a measure. 2. The act was designed to control rather than ascertain public sentiment. 3. The Constitution of 1844 had been _deliberately_ rejected by the people. 4. No memorial indicating a change of opinion had been sent up by the people since the election. 5. In the April election the people had not been misled; they voted intelligently; and their ballots were cast against the Constitution itself. The conditions imposed by Congress "doubtless had influence in different sections of the Territory, both for and against it. What was lost on the North and South by the change, was practically made up by the vote of the center where the Congressional boundaries are more acceptable than those defined in the Constitution." 6. The question of territory being a "minor consideration," the Constitution was rejected principally on account of its inherent defects. 7. Under no consideration should the Constitution of 1844 be again submitted to the people since it embodied so many objectionable provisions. Although the bill for re-submission had passed both branches of the Assembly by a safe majority, Governor Chambers did not hesitate to withhold his assent. On June 6 he returned it to the Council. But it is difficult to ascertain the precise grounds upon which the Governor withheld his approval, since his message deals with conditions rather than objections. In the first place he reviewed the conditions under which the Constitution of 1844 had at the same time been submitted to Congress and to the people of the Territory. Then he pointed out that, whereas a poll was taken on the Constitution according to law, no provision had been made for a separate poll on the conditions imposed by Congress. This, he thought, produced such confusion in the public mind as to cause the defeat of the Constitution. To be sure, he had proposed and was still in favor of submitting the question of a Convention to the people. But he would not now insist on such a policy. He freely admitted that the Legislative Assembly had the power to pass the measure before him. At the same time it seemed to him that, should the Constitution of 1844 be re-submitted to the people, it would simply give rise to confusion in attempts to reconcile and harmonize the various provisions of the statutes of the Territory, the act of Congress, and the Constitution. In the face of the Governor's veto the bill to re-submit the Constitution passed both branches of the Assembly by the requisite two-thirds majority, and on June 10, 1845, was declared by the Secretary of the Territory to be a law. It provided "that the Constitution as it came from the hands of the late Convention" be once more submitted to the people for their ratification or rejection. It directed that a poll be opened for that purpose at the general election to be held on the first Monday of August, 1845. The votes of the electors were to be given _viva voce_. Furthermore, it was expressly provided that the ratification of the Constitution "shall not be construed as an acceptance of the boundaries fixed by Congress in the late act of admission, and the admission shall not be deemed complete until whatever condition may be imposed by Congress, shall be ratified by the people." Thus the people were again asked to pass upon the Constitution of 1844. The campaign of the summer of 1845 was very much like the campaign of the spring. All of the leading arguments both for and against the Constitution were repeated in the press and on the stump. The parties divided on the same lines as before, except that the Whigs in their opposition had the assistance of a much larger Democratic contingent. One is surprised to find, in connection with the boundary question, little or no mention of "slavery," the "balance of power," or the "small State policy." Indeed the people of Iowa seemed wholly indifferent to these larger problems of National Politics. It is perhaps the most remarkable fact in the fascinating history of the Constitution of 1844 that, in the dispute over boundaries, the parties did not join issue on common grounds. Congress, on the one hand, desired to curtail the boundaries of Iowa for the purpose of creating a greater number of Northern States to balance the slave States of the South; whereas the people of Iowa protested against such curtailment not because of any balance-of-power considerations, but simply because they wanted a large State which would embrace the fertile regions of the Missouri on the West and of the St. Peters on the North. Augustus C. Dodge naturally received a good deal of criticism and abuse about this time on account of his March letter advising the acceptance of the boundaries proposed by Congress. By the Whigs he was set down as "a deserter of the people's cause." Even the Legislative Assembly, which was Democratic, resolved "that the Delegate in Congress be instructed to insist unconditionally on the Convention boundaries, and in no case to accept anything short of the St. Peters on the North, and the Missouri on the West, as the Northern and Western limits of the future State of Iowa." Mr. Dodge was not the man to oppose the known wishes of his constituents; and so, after June 10, 1845, he was found earnestly advocating the larger boundaries. One of the most interesting phases of the campaign was a surprising revelation in regard to the attitude and ambitions of the people living in the Northern part of the Territory--particularly the inhabitants of the city and county of Dubuque. In 1844 the people of this region had been in favor of extending the boundary as far North as the St. Peters; and in the Constitutional Convention of that year Mr. Langworthy, of Dubuque, had gone so far as to advocate the forty-fifth parallel of latitude as a line of division. But on April 26, 1845, the _Bloomington Herald_ declared that a proposition had gone out from Dubuque to divide the Territory on the North by a line running due West from the Mississippi between the counties of Jackson and Clinton and townships eighty-three and eighty-four. Later it was said that the _Dubuque Transcript_ was altogether serious in reference to this proposed division. These charges were not without foundation; for the records of Congress show that in May, 1846, the Speaker of the House of Representatives "presented a memorial of the citizens of the Territory of Iowa north of the forty-second degree of north latitude, praying for the establishment of a new territorial government, extending from the Mississippi river between the parallel of forty-two degrees and the northern boundary line of the United States. Also a memorial of Thomas McKnight and others, citizens of Dubuque county, in said Territory of like import." The official returns of the August election showed that the Constitution of 1844 had been rejected a second time. But the majority against its ratification had been cut down by at least one half. Angry with disappointment the editor of the _Iowa Capital Reporter_ declared that its defeat was due to "the pertinacious and wilful misrepresentation of the Whig press relative to the boundaries." XV THE CONVENTION OF 1846 When the members of the eighth Legislative Assembly of the Territory of Iowa met in the Capitol on the first Monday of December, 1845, they found that, as a result of the rejection of the Constitution of 1844, they were face to face with the question which for six years had confronted the pioneer law-makers of Iowa as the greatest political issue of the Territorial period. They found that the whole problem of State organization was before them for reconsideration. It was found also that Politics had worked some changes in the government of the Territory. John Chambers, who upon the completion of his first term as Governor had been promptly reappointed in 1844 by President Tyler, was as cheerfully removed by President Polk in 1845. And the Democracy of Iowa rejoiced over this manifestation of Jacksonianism. They believed that they would now have a Governor after their own heart--a Democrat who would have confidence in the people and respect the acts of their representatives. To be sure, the first Governor of the Territory of Iowa was a Democrat; but Robert Lucas had been altogether too independent. He had presumed to point out and correct the errors and blunders of the Assembly; whereas a true Democratic Governor was one who did not lead, but always followed the wisdom of the masses. James Clarke, the new Governor, was a citizen of Burlington and editor of the _Territorial Gazette_. During his residence in the Territory he had always taken an active part in Politics. In 1844 he served as a Delegate in the Constitutional Convention. Before this he had acted as Territorial Librarian; and for a short time he filled the office of Secretary of the Territory. Governor Clarke regretted the fate of the Constitution which he had helped to frame. In his message of December 3, 1845, he said: "Since your adjournment in June last, a most important question has been decided by the people, the effect of which is to throw us back where we originally commenced in our efforts to effect a change in the form of government under which we at present live.--I allude to the rejection of the Constitution at the August election. This result, however brought about, in my judgment, is one greatly to be deplored.--That misrepresentation and mystification had much to do in effecting it, there can be no doubt; still it stands as the recorded judgment of the people; and to that judgment until the people themselves reverse the decree, it is our duty to submit." As to recommendations in reference to this problem the Governor was cautious. He favored State organization, because he thought that "the prosperity of Iowa would be greatly advanced by her speedy incorporation into the Union as a State." But he did not presume to recommend a particular course of action; he simply assured the Assembly of his hearty co-operation in any measure which might be enacted looking toward the accomplishment of the desired end, that is, the early admission of Iowa into the Union. Confident that the people of Iowa really desired State organization and were anxious for its immediate establishment, the Legislative Assembly passed a bill providing for the election of delegates to a Constitutional Convention. This act, which was approved January 17, 1846, called for the election by the people of thirty-two delegates at the township elections in April. The delegates were directed to meet at Iowa City on the first Monday of May, 1846, "and proceed to form a Constitution and State Government for the future State of Iowa." When completed the draft of the code of fundamental law was to be submitted to the people for ratification or rejection at the first general election thereafter. If ratified by the people it was then to be submitted to Congress with the request that Iowa be admitted into the Union "upon an equal footing with the original States." Thus the Legislative Assembly forestalled the possibility of a repetition of the blunder of submitting to Congress a Constitution before it had been passed upon by the people. There was no serious opposition to the course outlined by the Assembly, for a large majority of the people were now anxious to see the matter of State organization carried to a successful conclusion. Owing to the absence of vital issues, the canvass preceding the election of delegates was not what would be called an enthusiastic campaign. There was of course a party struggle between the Whigs and the Democrats for the seats in the Convention. But the Whigs, "aware of their hopeless minority," advocated a "non-partisan election." They clamored for a "no-party Constitution,"--one free from party principles--for they did not want to see the Constitution of the State of Iowa made the reservoir of party creeds. They contended, therefore, that the delegates to the Convention should be chosen without reference to party affiliations. The Democrats, however, were not misled by the seductive cry of the Whigs. They proceeded to capture as many seats as possible. Everywhere they instructed their candidates to vote against banks. When the returns were all in it was found that they had elected more than two-thirds of the whole number of delegates. Of the thirty-two delegates who were elected to seats in the Convention of 1846, ten were Whigs and twenty-two were Democrats. Fifteen of the members were born in the South, eight in the New England States, four in the Middle States, and five in Ohio. Of those born in the South six were from Kentucky, four from Virginia, three from North Carolina, one from Alabama, and one from Maryland. The eight members born in New England were four from Vermont and four from Connecticut. The oldest member of the Convention was sixty-seven, the youngest twenty three; while the average age of all was about thirty-seven years. As to occupation, there were thirteen farmers, seven lawyers, four merchants, four physicians, one mechanic, one plasterer, one smelter, and one trader. It was on the morning of May 4, 1846, that the second Constitutional Convention met in the rooms of the Old Stone Capitol at Iowa City. Thirty names were entered on the roll. James Grant, a delegate from Scott county who had served in the first Convention, called the members to order. William Thompson (not a member) was appointed Secretary _pro tem_. Such was the temporary organization. It lasted but a few minutes; for, immediately after the roll had been called, Enos Lowe, of Des Moines county, was chosen, _viva voce_, President of the Convention. Mr. Thompson was retained as permanent Secretary, Wm. A. Skinner was named as the Sergeant-at-Arms. At this point "the Rev. Mr. Smith invoked a blessing from the Deity upon the future labors of the Convention." This was the only prayer offered during the entire session. Some time was saved by the immediate adoption of the rules of the Convention of 1844. In the afternoon it was agreed to have six regular standing Committees. These were: (1) On Boundaries and Bill of Rights; (2) On Executive Department; (3) On Legislative Department, Suffrage, Citizenship, Education, and School Lands; (4) On Judicial Department; (5) On Incorporations, Internal Improvements, and State Debts; and (6) On Schedule. It is unfortunate that only the barest fragments have been preserved of what was said in the Convention of 1846. The official journal and a few speeches are all that have come down to us. The debates could not have been very long, however, since the entire session of the Convention did not cover more than fifteen days. The discussion for the most part was confined to those subjects upon which there had been a marked difference of opinion in the earlier Convention or which had received attention in the campaigns of 1845. Indeed, the fact that Boundaries, Incorporations, Banks, Salaries, Suffrage, Executive Veto, Elective Judiciary, and Individual Rights were among the important topics of debate is evidence of a desire on the part of the Convention to formulate a code of fundamental law that would not meet with the criticisms which were so lavishly heaped upon the Constitution of 1844. The Convention of 1846 was certainly in earnest in its desire to draft a Constitution which would be approved by the people. Enos Lowe, the President, had at the outset informed the members that they were elected "to form a _new_ Constitution." But the attitude of the Convention is nowhere better expressed than in the following action which was taken on the eleventh day of May: "Whereas, In the opinion of this Convention, it is all important that the Constitution formed here at this time, be so framed as to meet with the approbation of a majority of the electors of this Territory, therefore, "_Resolved_, That a committee of three be added to the Supervisory Committee, whose duty shall be to enquire into the sectional feelings on the different parts of a Constitution, and to report such alterations as to them appears most likely to obviate the various objections that may operate against the adoption of this Constitution." By the nineteenth of May the Convention of 1846 had completed its labors. In comparison with the Convention of 1844 its history may be summed up in the one word, "Economy." The Convention of 1846 contained thirty-two members; that of 1844, seventy-two. The former continued in session fifteen days; the latter twenty-six days. The expenditures of the second Convention did not exceed $2,844.07; while the total cost of the first Convention was $7,850.20. Here then was economy in men, economy in time, and economy in expenditures. The thrifty pioneers were proud of the record. XVI THE CONSTITUTION OF 1846 The Constitution of 1846 was modeled upon the Constitution of 1844, although it was by no means a servile copy of that twice rejected instrument. Both codes were drawn up according to the same general plan, and were composed of the same number of articles, dealing substantially with the same subjects. The Constitution of 1846, however, was not so long as the Constitution of 1844 and was throughout more carefully edited. Article I. on "Preamble and Boundaries" does not contain the quotation from the preamble of the Federal Constitution which was made a part of the corresponding article in the Constitution of 1844. As to boundary specifications, the only material difference is found in the shifting of the line on the North from the St. Peters to the parallel of forty-three and one half degrees of North latitude. This new boundary was a compromise between the boundaries suggested by Lucas and those proposed by Nicollet. The "Bill of Rights," which constitutes Article II., contained one additional section, which aimed to disqualify all citizens who should participate in dueling from holding any office under the Constitution and laws of the State. Article III. on the "Right of Suffrage" reads the same as in the Constitution of 1844, although in the Convention of 1846 a strong effort had been made to extend this political right to resident foreigners who had declared their intention of becoming citizens. Article IV. on the composition, organization, and powers of the General Assembly contained four items which differed materially from the provisions of the Constitution of 1844. First, it was provided that the sessions of the General Assembly should commence on the first Monday of January instead of on the first Monday of December. Secondly, the Senate was to choose its own presiding officer. Thirdly, all bills for revenue must originate in the House of Representatives. Fourthly, the salaries for ten years were fixed as follows: for Governor $1,000; for Secretary of State $500; for Treasurer $400; for Auditor $600; and for Judges of the Supreme Court and District Courts $1,000. Article V. on "Executive Department" differs from the corresponding article in the Constitution of 1844 in that the office of Lieutenant Governor is omitted, while the term of the Governor is made four years instead of two. Article VI., which provides for the Judiciary, limits the term of the Judges of the Supreme Court and District Courts to four years. Articles VII. and VIII. on "Militia" and "State Debts" respectively are the same as in the earlier Constitution. Article IX. on "Incorporations" is a radical departure from the provisions of the old Constitution. The General Assembly is empowered to provide general laws with reference to corporations, but is restrained from creating such institutions by special laws. At the same time the article provides that "no corporate body shall hereafter be created, renewed, or extended, with the privilege of making, issuing, or putting in circulation, any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money. The General Assembly of this State shall prohibit, by law, any person or persons, association, company or corporation, from exercising the privileges of banking, or creating paper to circulate as money." Article X. on "Education and School Lands" directs the General Assembly to "provide for the election, by the people, of a Superintendent of Public Instruction" and to "encourage by all suitable means, the promotion of intellectual, scientific, moral and agricultural improvement." Article XI. on "Amendments of the Constitution" provided but one method of effecting changes in the fundamental law. The General Assembly was empowered to provide at any time for a vote of the people on the question of a Convention to "revise or amend this Constitution." If a majority of the people favored a Convention, then the General Assembly was to provide for the election of delegates. Article XII. contains three "miscellaneous" items relative to (_a_) the jurisdiction of Justices of the Peace, (_b_) the size of new counties, and (_c_) the location of lands granted to the State. Article XIII. on "Schedule" provided, among other things, that the Governor should by proclamation appoint the time for holding the first general election under the Constitution; but such election must be held within three months of the adoption of the Constitution. Likewise, the Governor was empowered to fix the day of the first meeting of the General Assembly of the State, which day, however, must be within four months of the ratification of the Constitution by the people. It is, moreover, interesting to note that while the Constitution of 1844 prescribed in general outline a system of county and township government, the Constitution of 1846 left the whole matter of local government to future legislation. XVII THE NEW BOUNDARIES While the people of the Territory of Iowa were preparing for and holding a second Constitutional Convention, and while they were debating the provisions of the new Constitution of 1846, Congress was reconsidering the boundaries of the proposed State. The matter had been called up early in the session by the Iowa Delegate. Mr. Dodge, having been re-elected, returned to Washington with the determination of carrying out his instructions so far as the boundary question was concerned. And so, on December 19, 1845, he asked leave to introduce "A Bill to define the boundaries of the State of Iowa, and to repeal so much of the act of the 3rd of March, 1845, as relates to the boundaries of Iowa." The original copy of this bill, which has been preserved in the office of the Clerk of the House of Representatives, bears testimony to Mr. Dodge's fidelity to promises made to the people; for the description of boundaries therein is a clipping from the Preamble of the printed pamphlet edition of the Constitution of 1844. In discussing the question later in the session he referred to his pledges as follows: "I know, Mr. Chairman, what are the wishes and sentiments of the people of Iowa upon this subject. It is but lately, sir, that I have undergone the popular ordeal upon this question; and I tell you, in all candor and sincerity, that I would not be in this Hall to-day if I had not made them the most solemn assurances that all my energies and whatever influence I possessed would be exerted to procure for them the fifty-seven thousand square miles included within the limits designated in their original constitution. It was in conformity with pledges that I had given them personally, with instructions which I knew I had received from them at the ballot-box, that I introduced, at an early day of the present session, the bill imbodying the boundaries of their choice." It was not, however, until March 27, 1846, that Mr. Stephen A. Douglas, from the Committee on the Territories to whom Mr. Dodge's bill had been referred, reported an "amendatory bill." This bill, which was introduced to take the place of the original bill, rejected the boundaries of the Constitution of 1844 and proposed the parallel of forty-three degrees and thirty minutes as the Northern boundary line of the new State. It was committed to the Committee of the Whole House on the State of the Union, wherein it was discussed on the eighth of June and reported back to the House. On the ninth of June the amendatory bill was taken up by the House and passed. It was reported to the Senate without delay, but was not passed by that body until the first day of August. On the fourth day of August the act received the approval of President Polk. The most important discussion of the bill was in the House of Representatives on the eighth day of June. An attempt was made to reduce the State on the North. Mr. Rockwell, of Massachusetts, moved to amend by striking out the words "forty-three and thirty minutes" where they occur and inserting in lieu thereof "forty-two degrees." He understood from a memorial which had been presented to the House that the people in the Northern part of the Territory did not wish to be included within the proposed boundaries. Mr. Douglas said that he was now in favor of the new boundaries as proposed by the Committee on the Territories. He declared that the boundaries of the act of March 3, 1845, "would be the worst that could be agreed upon; the most unnatural; the most inconvenient for the State itself, and leaving the balance of the territory in the worst shape for the formation of other new States." As to the memorial from Dubuque recommending the parallel of forty-two degrees, Mr. Douglas said that he was aware of the influences which produced it. The people of Dubuque "wished either for such an arrangement as should cause Dubuque to be the largest town in a little State, or else to make it the central town of a large State." Mr. Rathburn, of New York, was opposed to the lines laid down in the bill. He favored less extensive boundaries because he desired to preserve "the balance of power" in the Union by the creation of small States in the West. He "was against making Empires; he preferred that we should have States in this Union." Mr. Vinton, of Ohio, said that in the last session of Congress "no question except that of Texas had excited more interest in the House." He did not think that the people of the Territory should decide the question of boundaries; and he asserted that "if Congress was willing to let the people of Iowa cut and carve for themselves, he did not doubt that they would have their State extend to the mouth of the Columbia." The strongest speech, perhaps, in the whole debate was that of the Iowa Delegate. Mr. Dodge reviewed the history of the boundary dispute and pointed out that both he and the people of Iowa had pursued a firm and honorable course. He showed that many of the States were as large as or even larger than the proposed State of Iowa. Referring to the boundary proposed in the act of March 3, 1845, he said: "It will never be accepted by the people of Iowa." But he produced letters to show that the Iowa Convention of 1846 were willing to accept the compromise boundary proposed in the bill under discussion. "Thus, sir, it is now apparent that, if the House will pass the bill reported by the Committee on Territories, it will put an end to this question. The convention of Iowa have met the advances of the Committee on Territories of this House." Mr. Vinton then "moved an amendment, fixing the 43d parallel as the northern boundary." This was a tempting proposition. But Mr. Dodge stood firmly for the parallel of forty-three degrees _and thirty minutes_, and closed his remarks with these words: "I admonish the majority of this House that if the amendment of the gentleman from Ohio is to prevail, they might as well pass an act for our perpetual exclusion from the Union. Sir, the people of Iowa will never acquiesce in it." From the Journal of the Iowa Convention of 1846, it appears that when the Committee on Preamble and Boundaries made their report on the morning of the second day of the Convention they recommended the compromise boundaries which had already been proposed by the Committee on the Territories in the National House of Representatives. But when the report was taken up for consideration several days later an amendment was offered which proposed to substitute the boundaries as described in the Constitution of 1844. On a test ballot the vote of the Convention stood twenty-two to eight in favor of the amendment. This was on the eighth of May. Six days later a resolution instructing the Committee on Revision to amend the article on boundaries so as to read as follows was adopted by a vote of eighteen to thirteen: "Beginning in the middle of the main channel of the Mississippi river, at a point due east of the middle of the mouth of the main channel of the Des Moines river; thence up the middle of the main channel of the said Des Moines river, to a point on said river where the northern boundary line of the State of Missouri, as established by the Constitution of that State, adopted June 12th, 1820, crosses the said middle of the main channel of the said Des Moines river; thence westwardly, along the said northern boundary line of the State of Missouri, as established at the time aforesaid, until, an extension of said line intersects the middle of the main channel of the Missouri river; thence, up the middle of the main channel of the said Missouri river, to a point opposite the middle of the main channel of the Big Sioux river, according to Nicollet's map; thence up the main channel of the said Big Sioux river, according to said map, until it is intersected by the parallel of forty-three degrees and thirty minutes north latitude; thence east, along said parallel of forty-three degrees and thirty minutes, until said parallel intersects the middle of the main channel of the Mississippi river; thence down the middle of the main channel of said Mississippi river to the place of beginning." These were in substance the compromise boundaries which were first proposed in Congress by the Committee on the Territories on March 27, 1846. Their precise description, however, was the work of the Iowa Convention. Congress promptly adopted this description in the Act of August 4, 1846, by striking out the words of the bill then pending and inserting the language of the Iowa Convention as used in the Preamble to their Constitution. XVIII THE ADMISSION OF IOWA INTO THE UNION When submitted to the people the Constitution of 1846 was vigorously opposed by the Whigs who insisted that it was a party instrument. Their attitude and arguments are nowhere better set forth than in the address of Wm. Penn Clarke to the electors of the counties of Muscatine, Johnson, and Iowa. Mr. Clarke had come to the conclusion, after reading the proposed code of fundamental law, that its ratification would "prove greatly detrimental, if not entirely ruinous to the nearest and dearest interests of the people, by retarding the growth of the proposed State, in population, commerce, wealth and prosperity." This conviction led him to oppose the adoption of the Constitution of 1846. First, he objected to the Constitution "because it entirely prohibits the establishing of banking institutions,"--institutions which are absolutely essential to the economic welfare and industrial development of the State. He contended that this "inhibition of banks is not an inhibition of bank paper as a circulating medium. . . . . The question is narrowed down to the single point, _whether we will have banks of our own, and a currency of our own creation, and under our own control_, or whether we will become dependent on other States for such a circulating medium . . . . By prohibiting the creation of banks, we but disable ourselves, and _substitute_ a foreign currency for a home currency. The effect of the article on Incorporations will be to make Iowa the _plunder ground_ of all banks in the Union." Secondly, Mr. Clarke opposed the adoption of the Constitution of 1846 because of the provisions in the eighth and ninth articles. He maintained that the article on State Debts was "tantamount to an inhibition" of the construction of Internal Improvements by the State government; while the article on Incorporations aimed to prohibit the people from making such improvements. Thirdly, he protested against the "experiment" of an elective judicial system, since the election of the judges "is calculated to disrobe our Courts of Justice of their sacred character." Mr. Clarke would not "deny the right or the competency of the people to elect their judicial officers;" but he pointed out that the effect would be "to place upon the bench _political partisans_," and "to elevate to the judiciary second or third rate men in point of talents and legal acquirements." Fourthly, the Constitution should be rejected because it contains no provision securing to the people the right to elect their township and county officers. Furthermore, it is "entirely silent with reference to county and township organization." Fifthly, Mr. Clarke argued against the adoption of the Constitution because "not a single letter can be stricken from it without calling a Convention." He declared that the Democrats, after incorporating into the Constitution "partizan dogmas," so formulated the article on Amendments as to make their creed permanent. In the closing paragraphs of this remarkable arraignment of the proposed Constitution, Mr. Clarke referred to local interests in connection with the location of the State Capital. Iowa City, he said, had been founded "with a view to its being the permanent Capital of the State." But the new boundaries, proposed by the Committee on the Territories, would, if adopted, threaten the permanency of the Iowa City location. Indeed, Mr. Clarke went so far as to intimate that the relocation of the Capital was a part of Mr. Dodge's program in connection with the solution of the boundary problem. Curtailing the State on the North and extending it at the same time to the Missouri on the West meant the ultimate shifting of the Capital to the Raccoon Forks. Mr. Clarke concluded the prophecy by saying that "to quiet the center, we shall probably be promised a State University, or something of that character, and then be cheated in the end." Such were the leading objections to the ratification of the Constitution of 1846 as urged by the Whigs in the press and on the stump. They were supported by the more conservative Democrats who protested against the article on Incorporations and the article on Amendments. A large majority of the people, however, were impatient for the establishment of State organization. For the time they were even willing to overlook the defects of the proposed Constitution. Many voted for the instrument with the hope of remedying its imperfections after admission into the Union had once been effected. The Constitution of 1846 narrowly escaped defeat. At the polls on August 3, 1846, its supporters, according to the Governor's proclamation, were able to command a majority of only four hundred and fifty-six out of a total of eighteen thousand five hundred and twenty-eight votes. On September 9, 1846, Governor Clarke, as directed by the Territorial statute of January 17, 1846, issued a formal proclamation declaring the ratification and adoption of the Constitution. In the same proclamation, and in accordance with the provisions of the new Constitution, the Governor designated "Monday, The 26th Day of October Next" as the time for holding the first general election for State officers. The returns of this election showed that the Democrats had succeeded in electing Ansel Briggs, their candidate for Governor, by a majority of one hundred and sixty-one votes. The same party also captured a majority of the seats in the first General Assembly. Following the directions of the Schedule in the new Constitution, Governor Clarke issued a proclamation on November fifth in which he named Monday, November 30, 1846, as the day for the first meeting of the General Assembly. On December second the Territorial Governor transmitted his last message to the Legislature. It was on Thursday morning, December 3, 1846, that the Senators and Representatives assembled together in the hall of the House of Representatives in the Old Stone Capitol to witness the inauguration of the new Governor. Here in the presence of the General Assembly Judge Charles Mason, Chief Justice of the Supreme Court of the Territory, administered the oath of office to the first Governor of the State of Iowa. Twelve days after the inauguration of the State Governor at Iowa City, Mr. Dodge presented to the House of Representatives at Washington a copy of the Constitution of Iowa. The document was at once referred to the Committee on the Territories, from which a bill for the admission of Iowa into the Union was reported through Mr. Stephen A. Douglas on December seventeenth. It was made a special order of the day for Monday, December twenty-first, when it was debated and passed. Reported to the Senate on the twenty-second, it was there referred to the Committee on the Judiciary. This Committee reported the bill back to the Senate without amendment. After some consideration it passed the Senate on December twenty-fourth. Four days later it received the approval of President Polk. The existence of Iowa as one of the Commonwealths of the United States of America dates, therefore, from the TWENTY-EIGHTH DAY OF DECEMBER, ONE THOUSAND EIGHT HUNDRED AND FORTY-SIX. The act of admission declares that Iowa is "admitted into the Union on an equal footing with the original States in all respects whatsoever," and provides that all the provisions of "An Act supplemental to the Act for the Admission of the States of Iowa and Florida into the Union" approved March 3, 1845, shall continue in full force "as applicable to the State of Iowa." The conditions contained in the provisions of this act, which had been substituted by Congress in lieu of the provisions of the Ordinance submitted by the Convention of 1844, were finally accepted by the General Assembly of the State in an act approved January 17, 1849. XIX THE CONVENTION OF 1857 Throughout Iowa there was a very general feeling of satisfaction with the new political status which came with the establishment of State government and admission into the Union. Having outlived the conditions of Territorial government the pioneers of Iowa now entered into the new political life without regret. They rejoiced over the fact that they were recognized as a part of a great Nation. They appreciated the significance of the change. Nor were the pioneers of Iowa strangers to National political life. As settlers on the Public Domain they were in a very special sense children of the Nation. They had always cherished the inheritances of the "Fathers." But now the days of dependence were over. Henceforth this people of the frontier would strengthen the whole country with their own political ideas and ideals. They would, indeed, help to vitalize the Politics of the Nation with the provincial spirit of Western Democracy. On the other hand, the people of Iowa did not accept their new State Constitution without reservations. Wm. Penn Clarke's address had been widely read and his arguments were accepted not alone by the Whigs. In fact the Constitution of 1846 had not been adopted altogether on its merits. The people were anxious to get into the Union, and they voted for the Constitution as the shortest road to admission. They meant to correct its errors afterwards. In 1848 the editor of the _Iowa City Standard_ asserted that the Constitution of 1846 had been "accepted purely from motives of expediency, and with a tacit understanding that it was to receive some slight amendments as soon as they could constitutionally and legally be made. And but for this it would have been rejected by a very handsome majority. No well informed citizen can deny this." And so the Constitution of 1846 had scarcely been ratified at the polls before an agitation looking toward its amendment or revision was begun. As early as August 19, 1846, the _Iowa City Standard_ declared that "three fourths of the people of Iowa have determined that, cost what it may, the Ninth Article shall not remain unaltered in the Constitution." During the first session of the General Assembly of the State a bill providing for an expression of the opinion of the people of Iowa upon the subject of amendment passed the House of Representatives, but was indefinitely postponed in the Senate by a vote of ten to eight. This was in February, 1847. In 1848 the question of Constitutional amendment was made an issue in the political campaign. The Whigs advocated amendment or revision; while the Democrats as a rule stood for the Constitution as ratified in 1846. A bill providing for an expression of opinion by the people was again introduced in the House of Representatives during the second session of the General Assembly, but was indefinitely postponed after the second reading. A similar bill was rejected by the House during the third session. During the fourth regular session petitions favorable to amendment were received from the people. In the meantime Stephen Hempstead was elected to the office of Governor. He had been opposed to the agitation for Constitutional revision, and in his first Message of December 7, 1852, he said: "I cannot avoid a feeling of deep concern at the opinion expressed by some portion of our fellow citizens in favor of amending the Constitution of our State in such a manner as to authorize the establishment of Banks--of special acts of incorporation for pecuniary profit, and of contracting State debts without limitations of the General Assembly." In the same document he urged "upon the General Assembly the propriety of passing a law to prohibit the circulation of all bank notes of a less denomination than ten dollars." When he retired from office in December, 1854, he still declared that he saw no "imperative reason why our Constitution should be amended." But his successor, Governor Grimes, favored submitting the question of revision and amendment to the people. The necessity for a Convention to revise the Constitution of 1846 had become imperative. Iowa was flooded with a depreciated paper currency from other States. Gold and silver money was scarce. The few pieces which found their way into the State were hoarded either to pay taxes or to pay for government land. Finally, "An Act providing for the revision or amendment of the Constitution of this State" was passed by the fifth General Assembly and approved by Governor Grimes, January 24, 1855. In accordance with its provisions a poll was opened at the general election in August, 1856, "for the purpose of taking a vote of the people for or against a convention to revise or amend the Constitution." On the tenth day of September the Governor declared in his official proclamation that a majority of eighteen thousand six hundred and twenty-eight votes had been cast in favor of a Convention. In November, 1856, thirty-six delegates were elected to the Convention which met in the Supreme Court room of the Old Stone Capitol at Iowa City on January 19, 1857. Mr. Gray, of Linn County, called the Convention to order and moved that John A. Parvin, of Muscatine, be chosen President _pro tem_. On the following day Francis Springer was elected President of the Convention. The other permanent officers were as follows: Thomas J. Saunders, Secretary; Ellsworth N. Bates, Assistant Secretary; S. C. Trowbridge, Sergeant-at-Arms; Francis Thompson, Door Keeper; James O. Hawkins, Messenger; and W. Blair Lord, Reporter. Of the thirty-six delegates, six were from the New England States, eleven from the Middle States, ten from the South, and nine from the Middle West. As to occupation there were fourteen lawyers, twelve farmers, two merchants, two dealers in real estate, two bankers, one book-seller, one mail contractor, one druggist, and one pork-packer. The youngest member was twenty-six, the oldest fifty-six; while the average age of all the members was forty years. Twenty-one of the thirty-six members were Republicans; the other fifteen were Democrats. Early in the session of the Convention of 1857 there appeared to be considerable dissatisfaction with the accommodations afforded at Iowa City. The General Assembly had not yet adjourned, and so the Convention was compelled to meet for a few days in the Supreme Court room. Some of the members complained of the hotel service, and declared that they had not been welcomed with proper courtesy and hospitality by the people of Iowa City. At the same time the Convention received alluring invitations from Davenport and Dubuque. A committee of five was appointed to whom these invitations were referred. The report of this committee provoked a lively debate which Wm. Penn Clarke desired to have suppressed in the published reports. The result of the discussion was that the Convention concluded to remain in Iowa City. On the second day the members took an oath to support the Constitution of the United States. Some desired to include in this oath the Constitution of the State of Iowa; but the majority did not think it proper to swear allegiance to a Constitution which the Convention was called upon to amend, revise, or perhaps reject altogether. The act of January 24, 1855, calling for the Convention, provided for "the revision or amendment of the Constitution." Many would have been satisfied with a few amendments. The Convention, however, proceeded to draft a completely revised code of fundamental law. The two large volumes of printed reports show that the principles of Constitutional Law were discussed from Preamble to Schedule. The most important question before the Convention of 1857 was that of Corporations in general and of banking Corporations in particular. The Republican majority was pledged to make provisions for a banking system of some sort. But the popular mind had not decided whether there should be a State bank with branches, or a free banking system under legislative restrictions, or both. Difficult and intricate as the problem was, the Iowa Convention handled it, nevertheless, with energy and rare ability. The debates show that the laws and experience of the other States were carefully studied. Nor were local conditions and local experience forgotten. The discussions were long, earnest, and often heated; but at no time did the Iowa Convention lose its political sanity. That political poise which, in the long run, has always characterized Iowa Politics was maintained throughout the session. As finally agreed upon in the Convention, the provisions of the new Constitution relative to banking Corporations were in substance as follows: (1) The power to make laws relative to Corporations was conceded to the General Assembly. (2) But acts of the General Assembly authorizing or creating Corporations with banking powers must be referred to the people for their approval at a general or special election. (3) The General Assembly was empowered to establish "a State Bank with branches." But such a bank, if established, "shall be founded on an actual specie basis, and the branches shall be mutually responsible for each others' liabilities upon all notes, bills, and other issues intended for circulation as money." (4) The General Assembly may provide by a general law for a free banking system under certain restrictions. (_a_) Provision shall be made "for the registry and countersigning, by an officer of State, of all bills, or paper credit designed to circulate as money," and the law shall "require security to the full amount thereof, to be deposited with the State Treasurer, in United States stocks, or in interest-paying stocks of States in good credit and standing." (_b_) Records shall be kept of the names of stockholders and of the stock held by each. (_c_) Every stockholder shall be individually liable for an amount equal to twice the amount of his stock. (_d_) In cases of insolvency bill-holders shall have a preference over other creditors. (_e_) The suspension of specie payments shall never be permitted or sanctioned. (5) By a vote of two thirds of each branch of the General Assembly all laws for the organization or creation of Corporations could be amended or repealed. (6) The State shall not become a stockholder in any Corporation. Next in importance to the question of Corporations was the Negro problem. Shall the public schools of the State be open to persons of color? Shall the Constitution guarantee to all persons, irrespective of color, the right to acquire, hold, and transmit property? Shall the testimony of Negroes be accepted in the courts? Was the militia to be composed exclusively of "able-bodied white male citizens?" Shall the right of suffrage be extended to Negroes? It was in respect to these vital questions of the hour that the Republican majority in the Convention was compelled to declare and defend its attitude. The fact that the Republican party of Iowa was thus being put on trial for the first time makes the debates of the Convention of 1857 memorable in the political annals of the State. But these Iowa Republicans were at the same time defining and defending the attitude of their party on National issues; and so the debates of the Iowa Convention are a source-book also in the broader history of America. No one can read the pages of these debates without feeling that Iowa was making a decided contribution to National Politics. Nearly four years before the "Divided House Speech" was delivered at Springfield, Illinois, Governor Grimes had said in his inaugural address: "It becomes the State of Iowa--the only free child of the Missouri Compromise--to let the world know that she values the blessings that Compromise has secured her, and that she will never consent to become a party to the nationalization of slavery." And full two years before Lincoln defined the attitude of his party in the Lincoln-Douglas debates, it had gone forth from the Iowa Convention, (1) that the Republican party was not a sectional party; (2) that Abolition was not a part of the Republican creed; and (3) that, while they would arrest the further extension of slavery, Republicans had no desire to interfere with the institution in places where it already existed. The question as to whether the Negro should be allowed to vote in Iowa was referred to the people to be decided by them when the Constitution itself was submitted for ratification. Another question of interest which provoked considerable discussion in the Convention was the location of the State University and the re-location of the Capital. This problem had already been solved by the General Assembly. But to prevent further agitation by making the compromise permanent the following section was added to the new Constitution: "The Seat of Government is hereby permanently established, as now fixed by law, at the city of Des Moines, in the county of Polk, and the State University at Iowa City, in the county of Johnson." After a session of thirty-nine days the third Constitutional Convention in the history of Iowa adjourned _sine die_ on Thursday, March 5, 1857. XX THE CONSTITUTION OF 1857 The code of fundamental law which was drafted by the Convention of 1857 was modeled upon the Constitution of 1846, as this instrument had previously been patterned after the Constitution of 1844. Perhaps it would be better to say that the Constitution of 1857 was simply a revision of the Constitution of 1846. The later document, however, is fuller and altogether more complete and more perfect than its precursors. The changes which had been effected in the fundamental law were summed up by the President of the Convention in his closing remarks as follows: "We have added some new and important guards for the security of popular rights, and for the promotion of the best interests of the social compact. Restrictions existed in the old constitution, which it is believed have operated to check and retard the energies and prosperity of the State. These we have removed. We have stricken the fetters from the limbs of the infant giant, and given free scope to resources, capable as we believe, of working out the highest results." Some important additions were made to the Bill of Rights. Section four declares that the testimony of any person (including Negroes), not disqualified on account of interest, may be taken and used in any judicial proceeding. Section six provides that the "General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." To section nine is added the classical declaration that "no person shall be deprived of life, liberty, or property, without due process of law." Section twenty-four, which is altogether new, provides that "no lease or grant of agricultural lands, reserving any rent, or service of any kind, shall be valid for a longer period than twenty years." In Article III. the date of the regular biennial session of the General Assembly is changed from the first Monday in December to "the second Monday in January next ensuing the election of its members." Section fifteen provides that bills (including those for revenue) may originate in either House of the General Assembly. But, according to Section seventeen, "no bill shall be passed unless by the assent of a majority of all the members elected to each branch of the General Assembly." Furthermore, the cases in which the General Assembly is prohibited from passing local or special laws are specifically enumerated in section thirty. The most significant change or addition in the article on the "Executive Department" is the provision for a Lieutenant Governor. The article on the Judicial Department provides for the election of the Judges of the Supreme Court by the people instead of by the General Assembly. By the same article provision is made for "the election of an Attorney General by the people." The article on "State Debts" is more explicit and more guarded, but permits the State to contract debts which, however, "shall never exceed the sum of two hundred and fifty thousand dollars." Article VIII. removes the illiberal restrictions which had been placed by the Constitution upon Corporations--especially banking Corporations. And Article X. makes the process of amending the fundamental law altogether more flexible. The Board of Education, provided for in Article IX., was an innovation. As a system of educational control it proved unsatisfactory and was soon abolished by the General Assembly. The new Constitution was submitted to the people for ratification at the regular annual election which was held on Monday, August 3, 1857. Naturally enough the Democrats, who had been in the minority in the Convention of 1857, opposed the adoption of this "Republican code." The Republican party, however, now had the confidence of the people and were able to secure its ratification by a majority of sixteen hundred and thirty votes. At the same time the special amendment which proposed to extend the right of suffrage to Negroes failed of adoption. On September 3, 1857, Governor James W. Grimes declared the "New Constitution" to be "the supreme law of the State of Iowa." 
3032	----	CONSTITUTION *** The Fathers of the Constitution By Max Farrand A Chronicle of the Establishment of the Union Volume 13 of the Chronicles of America Series Allen Johnson, Editor Assistant Editors Gerhard R. Lomer Charles W. Jefferys Abraham Lincoln Edition New Haven: Yale University Press Toronto: Glasgow, Brook & Co. London: Humphrey Milford Oxford University Press 1921 Copyright, 1921, by Yale University Press Contents The Fathers of the Constitution Chapter Chapter Title Page I. The Treaty of Peace 1 II. Trade and Industry 22 III. The Confederation 35 IV. The Northwest Ordinance 55 V. Darkness Before Dawn 81 VI. The Federalist Convention 108 VII. Finishing the Work 125 VIII. The Union Established 143 Appendix 167 *Declaration of Independence 167 *Articles of Confederation 175 *Northwest Territory Ordinance 190 *Constitution of the United States 201 Bibliographical Note 219 Notes on the Portraits 225 Index 239 THE FATHERS OF THE CONSTITUTION CHAPTER I THE TREATY OF PEACE "The United States of America"! It was in the Declaration of Independence that this name was first and formally proclaimed to the world, and to maintain its verity the war of the Revolution was fought. Americans like to think that they were then assuming "among the Powers of the Earth the equal and independent Station to which the Laws of Nature and of Nature's God entitle them"; and, in view of their subsequent marvelous development, they are inclined to add that it must have been before an expectant world. In these days of prosperity and national greatness it is hard to realize that the achievement of independence did not place the United States on a footing of equality with other countries and that, in fact, the new state was more or less an unwelcome member of the world family. It is nevertheless true that the latest comer into the family of nations did not for a long time command the respect of the world. This lack of respect was partly due to the character of the American population. Along with the many estimable and excellent people who had come to British North America inspired by the best of motives, there had come others who were not regarded favorably by the governing classes of Europe. Discontent is frequently a healthful sign and a forerunner of progress, but it makes one an uncomfortable neighbor in a satisfied and conservative community; and discontent was the underlying factor in the migration from the Old World to the New. In any composite immigrant population such as that of the United States there was bound to be a large element of undesirables. Among those who came "for conscience's sake" were the best type of religious protestants, but there were also religious cranks from many countries, of almost every conceivable sect and of no sect at all. Many of the newcomers were poor. It was common, too, to regard colonies as inferior places of residence to which objectionable persons might be encouraged to go and where the average of the population was lowered by the influx of convicts and thousands of slaves. "The great number of emigrants from Europe"--wrote Thieriot, Saxon Commissioner of Commerce to America, from Philadelphia in 1784--"has filled this place with worthless persons to such a degree that scarcely a day passes without theft, robbery, or even assassination." ¹ It would perhaps be too much to say that the people of the United States were looked upon by the rest of the world as only half civilized, but certainly they were regarded as of lower social standing and of inferior quality, and many of them were known to be rough, uncultured, and ignorant. Great Britain and Germany maintained American missionary societies, not, as might perhaps be expected, for the benefit of the Indian or negro, but for the poor, benighted colonists themselves; and Great Britain refused to commission a minister to her former colonies for nearly ten years after their independence had been recognized. ¹ Quoted by W. E. Lingelbach, History Teacher's Magazine, March, 1913. It is usually thought that the dregs of humiliation have been reached when the rights of foreigners are not considered safe in a particular country, so that another state insists upon establishing therein its own tribunal for the trial of its citizens or subjects. Yet that is what the French insisted upon in the United States, and they were supposed to be especially friendly. They had had their own experience in America. First the native Indian had appealed to their imagination. Then, at an appropriate moment, they seemed to see in the Americans a living embodiment of the philosophical theories of the time: they thought that they had at last found "the natural man" of Rousseau and Voltaire; they believed that they saw the social contract theory being worked out before their very eyes. Nevertheless, in spite of this interest in Americans, the French looked upon them as an inferior people over whom they would have liked to exercise a sort of protectorate. To them the Americans seemed to lack a proper knowledge of the amenities of life. Commissioner Thieriot, describing the administration of justice in the new republic, noticed that: "A Frenchman, with the prejudices of his country and accustomed to court sessions in which the officers have imposing robes and a uniform that makes it impossible to recognize them, smiles at seeing in the court room men dressed in street clothes, simple, often quite common. He is astonished to see the public enter and leave the court room freely, those who prefer even keeping their hats on." Later he adds: "It appears that the court of France wished to set up a jurisdiction of its own on this continent for all matters involving French subjects." France failed in this; but at the very time that peace was under discussion Congress authorized Franklin to negotiate a consular convention, ratified a few years later, according to which the citizens of the United States and the subjects of the French King in the country of the other should be tried by their respective consuls or vice-consuls. Though this agreement was made reciprocal in its terms and so saved appearances for the honor of the new nation, nevertheless in submitting it to Congress John Jay clearly pointed out that it was reciprocal in name rather than in substance, as there were few or no Americans in France but an increasing number of Frenchmen in the United States. Such was the status of the new republic in the family of nations when the time approached for the negotiation of a treaty of peace with the mother country. The war really ended with the surrender of Cornwallis at Yorktown in 1781. Yet even then the British were unwilling to concede the independence of the revolted colonies. This refusal of recognition was not merely a matter of pride; a division and a consequent weakening of the empire was involved; to avoid this Great Britain seems to have been willing to make any other concessions that were necessary. The mother country sought to avoid disruption at all costs. But the time had passed when any such adjustment might have been possible. The Americans now flatly refused to treat of peace upon any footing except that of independent equality. The British, being in no position to continue the struggle, were obliged to yield and to declare in the first article of the treaty of peace that "His Britannic Majesty acknowledges the said United States ... to be free, sovereign, and independent states." With France the relationship of the United States was clear and friendly enough at the time. The American War of Independence had been brought to a successful issue with the aid of France. In the treaty of alliance which had been signed in 1778 had been agreed that neither France nor the United States should, without the consent of the other, make peace with Great Britain. More than that, in 1781, partly out of gratitude but largely as a result of clever manipulation of factions in Congress by the French Minister in Philadelphia, the Chevalier de la Luzerne, the American peace commissioners had been instructed "to make the most candid and confidential communications upon all subjects to the ministers of our generous ally, the King of France; to undertake nothing in the negotiations for peace or truce without their knowledge and concurrence; and ultimately to govern yourselves by their advice and opinion." ¹ If France had been actuated only by unselfish motives in supporting the colonies in their revolt against Great Britain, these instructions might have been acceptable and even advisable. But such was not the case. France was working not so much with philanthropic purposes or for sentimental reasons as for the restoration to her former position of supremacy in Europe. Revenge upon England was only a part of a larger plan of national aggrandizement. ¹ "Secret Journals of Congress," June 15, 1781. The treaty with France in 1778 had declared that war should be continued until the independence of the United States had been established, and it appeared as if that were the main purpose of the alliance. For her own good reasons France had dragged Spain into the struggle. Spain, of course, fought to cripple Great Britain and not to help the United States. In return for this support France was pledged to assist Spain in obtaining certain additions to her territory. In so far as these additions related to North America, the interests of Spain and those of the United States were far from being identical; in fact, they were frequently in direct opposition. Spain was already in possession of Louisiana and, by prompt action on her entry into the war in 1780, she had succeeded in getting control of eastern Louisiana and of practically all the Floridas except St. Augustine. To consolidate these holdings and round out her American empire, Spain would have liked to obtain the title to all the land between the Alleghany Mountains and the Mississippi. Failing this, however, she seemed to prefer that the region northwest of the Ohio River should belong to the British rather than to the United States. Under these circumstances it was fortunate for the United States that the American Peace Commissioners were broad-minded enough to appreciate the situation and to act on their own responsibility. Benjamin Franklin, although he was not the first to be appointed, was generally considered to be the chief of the Commission by reason of his age, experience, and reputation. Over seventy-five years old, he was more universally known and admired than probably any man of his time. This many-sided American--printer, almanac maker, writer, scientist, and philosopher--by the variety of his abilities as well as by the charm of his manner seemed to have found his real mission in the diplomatic field, where he could serve his country and at the same time, with credit to himself, preach his own doctrines. When Franklin was sent to Europe at the outbreak of the Revolution, it was as if destiny had intended him for that particular task. His achievements had already attracted attention; in his fur cap and eccentric dress "he fulfilled admirably the Parisian ideal of the forest philosopher"; and with his facility in conversation, as well as by the attractiveness of his personality, he won both young and old. But, with his undoubted zeal for liberty and his unquestioned love of country, Franklin never departed from the Quaker principles he affected and always tried to avoid a fight. In these efforts, owing to his shrewdness and his willingness to compromise, he was generally successful. John Adams, being then the American representative at The Hague, was the first Commissioner to be appointed. Indeed, when he was first named, in 1779, he was to be sole commissioner to negotiate peace; and it was the influential French Minister to the United States who was responsible for others being added to the commission. Adams was a sturdy New Englander of British stock and of a distinctly English type--medium height, a stout figure, and a ruddy face. No one questioned his honesty, his straightforwardness, or his lack of tact. Being a man of strong mind, of wide reading and even great learning, and having serene confidence in the purity of his motives as well as in the soundness of his judgment, Adams was little inclined to surrender his own views, and was ready to carry out his ideas against every obstacle. By nature as well as by training he seems to have been incapable of understanding the French; he was suspicious of them and he disapproved of Franklin's popularity even as he did of his personality. Five Commissioners in all were named, but Thomas Jefferson and Henry Laurens did not take part in the negotiations, so that the only other active member was John Jay, then thirty-seven years old and already a man of prominence in his own country. Of French Huguenot stock and type, he was tall and slender, with somewhat of a scholar's stoop, and was usually dressed in black. His manners were gentle and unassuming, but his face, with its penetrating black eyes, its aquiline nose and pointed chin, revealed a proud and sensitive disposition. He had been sent to the court of Spain in 1780, and there he had learned enough to arouse his suspicious, if nothing more, of Spain's designs as well as of the French intention to support them. In the spring of 1782 Adams felt obliged to remain at The Hague in order to complete the negotiations already successfully begun for a commercial treaty with the Netherlands. Franklin, thus the only Commissioner on the ground in Paris, began informal negotiations alone but sent an urgent call to Jay in Spain, who was convinced of the fruitlessness of his mission there and promptly responded. Jay's experience in Spain and his knowledge of Spanish hopes had led him to believe that the French were not especially concerned about American interests but were in fact willing to sacrifice them if necessary to placate Spain. He accordingly insisted that the American Commissioners should disregard their instructions and, without the knowledge of France, should deal directly with Great Britain. In this contention he was supported by Adams when he arrived, but it was hard to persuade Franklin to accept this point of view, for he was unwilling to believe anything so unworthy of his admiring and admired French. Nevertheless, with his cautious shrewdness, he finally yielded so far as to agree to see what might come out of direct negotiations. The rest was relatively easy. Of course there were difficulties and such sharp differences of opinion that, even after long negotiation, some matters had to be compromised. Some problems, too, were found insoluble and were finally left without a settlement. But such difficulties as did exist were slight in comparison with the previous hopelessness of reconciling American and Spanish ambitions, especially when the latter were supported by France. On the one hand, the Americans were the protégés of the French and were expected to give way before the claims of their patron's friends to an extent which threatened to limit seriously their growth and development. On the other hand, they were the younger sons of England, uncivilized by their wilderness life, ungrateful and rebellious, but still to be treated by England as children of the blood. In the all-important question of extent of territory, where Spain and France would have limited the United States to the east of the Alleghany Mountains, Great Britain was persuaded without great difficulty, having once conceded independence to the United States, to yield the boundaries which she herself had formerly claimed--from the Atlantic Ocean on the east to the Mississippi River on the west, and from Canada on the north to the southern boundary of Georgia. Unfortunately the northern line, through ignorance and carelessness rather than through malice, was left uncertain at various points and became the subject of almost continuous controversy until the last bit of it was settled in 1911. ¹ ¹ See Lord Bryce's Introduction (p. xxiv) to W. A. Dunning, The British Empire and the United States (1914). The fisheries of the North Atlantic, for which Newfoundland served as the chief entrepôt, had been one of the great assets of North America from the time of its discovery. They had been one of the chief prizes at stake in the struggle between the French and the British for the possession of the continent, and they had been of so much value that a British statute of 1775 which cut off the New England fisheries was regarded, even after the "intolerable acts" of the previous year, as the height of punishment for New England. Many Englishmen would have been glad to see the Americans excluded from these fisheries, but John Adams, when he arrived from The Hague, displayed an appreciation of New England interests and the quality of his temper as well by flatly refusing to agree to any treaty which did not allow full fishing privileges. The British accordingly yielded and the Americans were granted fishing rights as "heretofore" enjoyed. The right of navigation of the Mississippi River, it was declared in the treaty, should "forever remain free and open" to both parties; but here Great Britain was simply passing on to the United States a formal right which she had received from France and was retaining for herself a similar right which might sometime prove of use, for as long as Spain held both banks at the mouth of the Mississippi River, the right was of little practical value. Two subjects involving the greatest difficulty of arrangement were the compensation of the Loyalists and the settlement of commercial indebtedness. The latter was really a question of the payment of British creditors by American debtors, for there was little on the other side of the balance sheet, and it seems as if the frugal Franklin would have preferred to make no concessions and would have allowed creditors to take their own chances of getting paid. But the matter appeared to Adams in a different light--perhaps his New England conscience was aroused--and in this point of view he was supported by Jay. It was therefore finally agreed "that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted." However just this provision may have been, its incorporation in the terms of the treaty was a mistake on the part of the Commissioners, because the Government of the United States had no power to give effect to such an arrangement, so that the provision had no more value than an emphatic expression of opinion. Accordingly, when some of the States later disregarded this part of the treaty, the British had an excuse for refusing to carry out certain of their own obligations. The historian of the Virginia Federal Convention of 1788, H. B. Grigsby, relates an amusing incident growing out of the controversy over the payment of debts to creditors in England: A Scotchman, John Warden, a prominent lawyer and good classical scholar, but suspected rightly of Tory leanings during the Revolution, learning of the large minority against the repeal of laws in conflict with the treaty of 1783 (i. e., especially the laws as to the collection of debts by foreigners) caustically remarked that some of the members of the House had voted against paying for the coats on their backs. The story goes that he was summoned before the House in full session, and was compelled to beg their pardon on his knees; but as he rose, pretending to brush the dust from his knees, he pointed to the House and said audibly, with evident double meaning, 'Upon my word, a dommed dirty house it is indeed.' The Journal of the House, however, shows that the honor of the delegates was satisfied by a written assurance from Mr. Warden that he meant in no way to affront the dignity of the House or to insult any of its members. The other question, that of compensating the Loyalists for the loss of their property, was not so simple a matter, for the whole story of the Revolution was involved. There is a tendency among many scholars of the present day to regard the policy of the British toward their North American colonies as possibly unwise and blundering but as being entirely in accordance with the legal and constitutional rights of the mother country, and to believe that the Americans, while they may have been practically and therefore morally justified in asserting their independence, were still technically and legally in the wrong. It is immaterial whether or not that point of view is accepted, for its mere recognition is sufficient to explain the existence of a large number of Americans who were steadfast in their support of the British side of the controversy. Indeed, it has been estimated that as large a proportion as one-third of the population remained loyal to the Crown. Numbers must remain more or less uncertain, but probably the majority of the people in the United States, whatever their feelings may have been, tried to remain neutral or at least to appear so; and it is undoubtedly true that the Revolution was accomplished by an aggressive minority and that perhaps as great a number were actively loyal to Great Britain. These Loyalists comprised at least two groups. One of these was a wealthy, property-owning class, representing the best social element in the colonies, extremely conservative, believing in privilege and fearing the rise of democracy. The other was composed of the royal office-holders, which included some of the better families, but was more largely made up of the lower class of political and social hangers-on, who had been rewarded with these positions for political debts incurred in England. The opposition of both groups to the Revolution was inevitable and easily to be understood, but it was also natural that the Revolutionists should incline to hold the Loyalists, without distinction, largely responsible for British pre-Revolutionary policy, asserting that they misinformed the Government as to conditions and sentiment in America, partly through stupidity and partly through selfish interest. It was therefore perfectly comprehensible that the feeling should be bitter against them in the United States, especially as they had given efficient aid to the British during the war. In various States they were subjected to personal violence at the hands of indignant "patriots," many being forced to flee from their homes, while their property was destroyed or confiscated, and frequently these acts were legalized by statute. The historian of the Loyalists of Massachusetts, James H. Stark, must not be expected to understate the case, but when he is describing, especially in New England, the reign of terror which was established to suppress these people, he writes: Loyalists were tarred and feathered and carried on rails, gagged and bound for days at a time; stoned, fastened in a room with a fire and the chimney stopped on top; advertised as public enemies, so that they would be cut off from all dealings with their neighbors; they had bullets shot into their bedrooms, their horses poisoned or mutilated; money or valuable plate extorted from them to save them from violence, and on pretence of taking security for their good behavior; their houses and ships burned; they were compelled to pay the guards who watched them in their houses, and when carted about for the mob to stare at and abuse, they were compelled to pay something at every town. There is little doubt also that the confiscation of property and the expulsion of the owners from the community were helped on by people who were debtors to the Loyalists and in this way saw a chance of escaping from the payment of their rightful obligations. The "Act for confiscating the estates of certain persons commonly called absentees" may have been a measure of self-defense for the State but it was passed by the votes of those who undoubtedly profited by its provisions. Those who had stood loyally by the Crown must in turn be looked out for by the British Government, especially when the claims of justice were reinforced by the important consideration that many of those with property and financial interests in America were relatives of influential persons in England. The immediate necessity during the war had been partially met by assisting thousands to go to Canada--where their descendants today form an important element in the population and are proud of being United Empire Loyalists--while pensions and gifts were supplied to others. Now that the war was over the British were determined that Americans should make good to the Loyalists for all that they had suffered, and His Majesty's Commissioners were hopeful at least of obtaining a proviso similar to the one relating to the collection of debts. John Adams, however, expressed the prevailing American idea when he said that "paying debts and compensating Tories" were two very different things, and Jay asserted that there were certain of these refugees whom Americans never would forgive. But this was the one thing needed to complete the negotiations for peace, and the British arguments on the injustice and irregularity of the treatment accorded to the Loyalists were so strong that the American Commissioners were finally driven to the excuse that the Government of the Confederation had no power over the individual States by whom the necessary action must be taken. Finally, in a spirit of mutual concession at the end of the negotiations, the Americans agreed that Congress should "recommend to the legislatures of the respective states to provide for the restitution" of properties which had been confiscated "belonging to real British subjects," and "that persons of any other description" might return to the United States for a period of twelve months and be "unmolested in their endeavours to obtain the restitution." With this show of yielding on the part of the American Commissioners it was possible to conclude the terms of peace, and the preliminary treaty was drawn accordingly and agreed to on November 30, 1782. Franklin had been of such great service during all the negotiations, smoothing down ruffed feelings by his suavity and tact and presenting difficult subjects in a way that made action possible, that to him was accorded the unpleasant task of communicating what had been accomplished to Vergennes, the French Minister, and of requesting at the same time "a fresh loan of twenty million francs." Franklin, of course, presented his case with much "delicacy and kindliness of manner" and with a fair degree of success. "Vergennes thought that the signing of the articles was premature, but he made no inconvenient remonstrances, and procured six millions of the twenty." ¹ On September 3, 1783, the definite treaty of peace was signed in due time it was ratified by the British Parliament as well as by the American Congress. The new state, duly accredited, thus took its place in the family of nations; but it was a very humble place that was first assigned to the United States of America. ¹ Channing, History of the United States, vol. iii, p. 368. CHAPTER II TRADE AND INDUSTRY Though the word revolution implies a violent break with the past, there was nothing in the Revolution that transformed the essential character or the characteristics of the American people. The Revolution severed the ties which bound the colonies to Great Britain; it created some new activities; some soldiers were diverted from their former trades and occupation; but, as the proportion of the population engaged in the war was relatively small and the area of country affected for any length of time was comparatively slight, it is safe to say that in general the mass of the people remained about the same after the war as before. The professional man was found in his same calling; the artisan returned to his tools, if he had ever laid them down; the shopkeeper resumed his business, if it had been interrupted; the merchant went back to his trading; and the farmer before the Revolution remained a farmer afterward. The country as a whole was in relatively good condition and the people were reasonably prosperous; at least, there was no general distress or poverty. Suffering had existed in the regions ravaged by war, but no section had suffered unduly or had had to bear the burden of war during the entire period of fighting. American products had been in demand, especially in the West India Islands, and an illicit trade with the enemy had sprung up, so that even during the war shippers were able to dispose of their commodities at good prices. The Americans are commonly said to have been an agricultural people, but it would be more correct to say that the great majority of the people were dependent upon extractive industries, which would include lumbering, fishing, and even the fur trade, as well as the ordinary agricultural pursuits. Save for a few industries, of which shipbuilding was one of the most important, there was relatively little manufacturing apart from the household crafts. These household industries had increased during the war, but as it was with the individual so it was with the whole country; the general course of industrial activity was much the same as it had been before the war. A fundamental fact is to be observed in the economy of the young nation: the people were raising far more tobacco and grain and were extracting far more of other products than they could possibly use themselves; for the surplus they must find markets. They had, as well, to rely upon the outside world for a great part of their manufactured goods, especially for those of the higher grade. In other words, from the economic point of view, the United States remained in the former colonial stage of industrial dependence, which was aggravated rather than alleviated by the separation from Great Britain. During the colonial period, Americans had carried on a large amount of this external trade by means of their own vessels. The British Navigation Acts required the transportation of goods in British vessels, manned by crews of British sailors, and specified certain commodities which could be shipped to Great Britain only. They also required that much of the European trade should pass by way of England. But colonial vessels and colonial sailors came under the designation of "British," and no small part of the prosperity of New England, and of the middle colonies as well, had been due to the carrying trade. It would seem therefore as if a primary need of the American people immediately after the Revolution was to get access to their old markets and to carry the goods as much as possible in their own vessels. In some directions they were successful. One of the products in greatest demand was fish. The fishing industry had been almost annihilated by the war, but with the establishment of peace the New England fisheries began to recover. They were in competition with the fishermen of France and England who were aided by large bounties, yet the superior geographical advantages which the American fishermen possessed enabled them to maintain and expand their business, and the rehabilitation of the fishing fleet was an important feature of their programme. In other directions they were not so successful. The British still believed in their colonial system and applied its principles without regard to the interests of the United States. Such American products as they wanted they allowed to be carried to British markets, but in British vessels. Certain commodities, the production of which they wished to encourage within their own dominions, they added to the prohibited list. Americans cried out indignantly that this was an attempt on the part of the British to punish their former colonies for their temerity in revolting. The British Government may well have derived some satisfaction from the fact that certain restrictions bore heavily upon New England, as John Adams complained; but it would seem to be much nearer the truth to say that in a truly characteristic way the British were phlegmatically attending to their own interests and calmly ignoring the United States, and that there was little malice in their policy. European nations had regarded American trade as a profitable field of enterprise and as probably responsible for much of Great Britain's prosperity. It was therefore a relatively easy matter for the United States to enter into commercial treaties with foreign countries. These treaties, however, were not fruitful of any great result; for, "with unimportant exceptions, they left still in force the high import duties and prohibitions that marked the European tariffs of the time, as well as many features of the old colonial system. They were designed to legalize commerce rather than to encourage it." ¹ Still, for a year or more after the war the demand for American products was great enough to satisfy almost everybody. But in 1784 France and Spain closed their colonial ports and thus excluded the shipping of the United States. This proved to be so disastrous for their colonies that the French Government soon was forced to relax its restrictions. The British also made some concessions, and where their orders were not modified they were evaded. And so, in the course of a few years, the West India trade recovered. ¹ Clive Day, Encyclopedia of American Government, Vol. i, p. 340. More astonishing to the men of that time than it is to us was the fact that American foreign trade fell under British commercial control again. Whether it was that British merchants were accustomed to American ways of doing things and knew American business conditions; whether other countries found the commerce not as profitable as they had expected, as certainly was the case with France; whether "American merchants and sea captains found themselves under disadvantages due to the absence of treaty protection which they had enjoyed as English subjects"; ² or whether it was the necessity of trading on British capital--whatever the cause may have been--within a comparatively few years a large part of American trade was in British hands as it had been before the Revolution. American trade with Europe was carried on through English merchants very much as the Navigation Acts had prescribed. ² C. R. Fish, American Diplomacy, pp. 56-57. From the very first settlement of the American continent the colonists had exhibited one of the earliest and most lasting characteristics of the American people--adaptability. The Americans now proceeded to manifest that trait anew, not only by adjusting themselves to renewed commercial dependence upon Great Britain, but by seeking new avenues of trade. A striking illustration of this is to be found in the development of trade with the Far East. Captain Cook's voyage around the world (1768-1771), an account of which was first published in London in 1773, attracted a great deal of attention in America; an edition of the New Voyage was issued in New York in 1774. No sooner was the Revolution over than there began that romantic trade with China and the northwest coast of America, which made the fortunes of some families of Salem and Boston and Philadelphia. This commerce added to the prosperity of the country, but above all it stimulated the imagination of Americans. In the same way another outlet was found in trade with Russia by way of the Baltic. The foreign trade of the United States after the Revolution thus passed through certain well-marked phases. First there was a short period of prosperity, owing to an unusual demand for American products; this was followed by a longer period of depression; and then came a gradual recovery through acceptance of the new conditions and adjustment to them. A similar cycle may be traced in the domestic or internal trade. In early days intercolonial commerce had been carried on mostly by water, and when war interfered commerce almost ceased for want of roads. The loss of ocean highways, however, stimulated road building and led to what might be regarded as the first "good-roads movement" of the new nation, except that to our eyes it would be a misuse of the word to call any of those roads good. But anything which would improve the means of transportation took on a patriotic tinge, and the building of roads and the cutting of canals were agitated until turnpike and canal companies became a favorite form of investment; and in a few years the interstate land trade had grown to considerable importance. But in the meantime, water transportation was the main reliance, and with the end of the war the coastwise trade had been promptly resumed. For a time it prospered; but the States, affected by the general economic conditions and by jealousy, tried to interfere with and divert the trade of others to their own advantage. This was done by imposing fees and charges and duties, not merely upon goods and vessels from abroad but upon those of their fellow States. James Madison described the situation in the words so often quoted: "Some of the States, ... having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, thro whose ports, their commerce was carryed on. New Jersey, placed between Phila. & N. York, was likened to a Cask tapped at both ends: and N. Carolina between Virga. & S. Carolina to a patient bleeding at both Arms." ¹ ¹ Records of the Federal Convention, vol. iii, p. 542. The business depression which very naturally followed the short revival of trade was so serious in its financial consequences that it has even been referred to as the "Panic of 1785." The United States afforded a good market for imported articles in 1788 and 1784, all the better because of the supply of gold and silver which had been sent into the country by England and France to maintain their armies and fleets and which had remained in the United States. But this influx of imported goods was one of the chief factors in causing the depression of 1785, as it brought ruin to many of those domestic industries which had sprung up in the days of non-intercourse or which had been stimulated by the artificial protection of the war. To make matters worse, the currency was in a confused condition. "In 1784 the entire coin of the land, except coppers, was the product of foreign mints. English guineas, crowns, shillings and pence were still paid over the counters of shops and taverns, and with them were mingled many French and Spanish and some German coins.... The value of the gold pieces expressed in dollars was pretty much the same the country over. But the dollar and the silver pieces regarded as fractions of a dollar had no less than five different values." ¹ The importation of foreign goods was fast draining the hard money out of the country. In an effort to relieve the situation but with the result of making it much worse, several of the States began to issue paper money; and this was in addition to the enormous quantities of paper which had been printed during the Revolution and which was now worth but a small fraction of its face value. ¹ McMaster, History of the People of the United States, vol. i, pp. 190-191. The expanding currency and consequent depreciation in the value of money had immediately resulted in a corresponding rise of prices, which for a while the States attempted to control. But in 1778 Congress threw up its hands in despair and voted that "all limitations of prices of gold and silver be taken off," although the States for some time longer continued to endeavor to regulate prices by legislation. ¹ The fluctuating value of the currency increased the opportunities for speculation which war conditions invariably offer, and "immense fortunes were suddenly accumulated." A new financial group rose into prominence composed largely of those who were not accustomed to the use of money and who were consequently inclined to spend it recklessly and extravagantly. ¹ W. E. H. Lecky, The American Revolution, New York, 1898, pp. 288-294. Many contemporaries comment upon these things, of whom Brissot de Warville may be taken as an example, although he did not visit the United States until 1788: The inhabitants ... prefer the splendor of wealth and the show of enjoyment to the simplicity of manners and the pure pleasures which result from it. If there is a town on the American continent where the English luxury displays its follies, it is New York. You will find here the English fashions: in the dress of the women you will see the most brilliant silks, gauzes, hats, and borrowed hair; equipages are rare, but they are elegant; the men have more simplicity in their dress; they disdain gewgaws, but they take their revenge in the luxury of the table; luxury forms already a class of men very dangerous to society; I mean bachelors; the expense of women causes matrimony to be dreaded by men. Tea forms, as in England, the basis of parties of pleasure; many things are dearer here than in France; a hairdresser asks twenty shilling a month; washing costs four shillings a dozen. ¹ ¹ Quoted by Henry Tuckerman, America and her Commentators, 1864. An American writer of a later date, looking back upon his earlier years, was impressed by this same extravagance, and his testimony may well be used to strengthen the impression which it is the purpose of the present narrative to convey: The French and British armies circulated immense sums of money in gold and silver coin, which had the effect of driving out of circulation the wretched paper currency which had till then prevailed. Immense quantities of British and French goods were soon imported: our people imbibed a taste for foreign fashions and luxury; and in the course of two or three years, from the close of the war, such an entire change had taken place in the habits and manners of our inhabitants, that it almost appeared as if we had suddenly become a different nation. The staid and sober habits of our ancestors, with their plain home-manufactured clothing, were suddenly laid aside, and European goods of fine quality adopted in their stead. Fine ruffles, powdered heads, silks and scarlets, decorated the men; while the most costly silks, satins, chintzes, calicoes, muslins, etc., etc., decorated our females. Nor was their diet less expensive; for superb plate, foreign spirits, wines, etc., etc., sparkled on the sideboards of many farmers. The natural result of this change of the habits and customs of the people--this aping of European manners and morals, was to suddenly drain our country of its circulating specie; and as a necessary consequence, the people ran in debt, times became difficult, and money hard to raise. ¹ ¹; Samuel Kercheval, History of the Valley of Virginia, 1833, pp. 199-200. The situation was serious, and yet it was not as dangerous or even as critical as it has generally been represented, because the fundamental bases of American prosperity were untouched. The way by which Americans could meet the emergency and recover from the hard times was fairly evident--first to economize, and then to find new outlets for their industrial energies. But the process of adjustment was slow and painful. There were not a few persons in the United States who were even disposed to regret that Americans were not safely under British protection and prospering with Great Britain, instead of suffering in political isolation. CHAPTER III THE CONFEDERATION When peace came in 1783 there were in the United States approximately three million people, who were spread over the whole Atlantic coast from Maine to Georgia and back into the interior as far as the Alleghany Mountains; and a relatively small number of settlers had crossed the mountain barrier. About twenty per cent of the population, or some six hundred thousand, were negro slaves. There was also a large alien element of foreign birth or descent, poor when they arrived in America, and, although they had been able to raise themselves to a position of comparative comfort, life among them was still crude and rough. Many of the people were poorly educated and lacking in cultivation and refinement and in a knowledge of the usages of good society. Not only were they looked down upon by other nations of the world; there was within the United States itself a relatively small upper class inclined to regard the mass of the people as of an inferior order. Thus, while forces were at work favorable to democracy, the gentry remained in control of affairs after the Revolution, although their numbers were reduced by the emigration of the Loyalists and their power was lessened. The explanation of this aristocratic control may be found in the fact that the generation of the Revolution had been accustomed to monarchy and to an upper class and that the people were wont to take their ideas and to accept suggestions from their betters without question or murmur. This deferential attitude is attested by the indifference of citizens to the right of voting. In our own day, before the great extension of woman suffrage, the number of persons voting approximated twenty per cent of the population, but after the Revolution less than five per cent of the white population voted. There were many limitations upon the exercise of the suffrage, but the small number of voters was only partially due to these restrictions, for in later years, without any radical change in suffrage qualifications, the proportion of citizens who voted steadily increased. The fact is that many of the people did not care to vote. Why should they, when they were only registering the will or the wishes of their superiors? But among the relatively small number who constituted the governing class there was a high standard of intelligence. Popular magazines were unheard of and newspapers were infrequent, so that men depended largely upon correspondence and personal intercourse for the interchange of ideas. There was time, however, for careful reading of the few available books; there was time for thought, for writing, for discussion, and for social intercourse. It hardly seems too much to say, therefore, that there was seldom, if ever, a people--certainly never a people scattered over so wide a territory--who knew so much about government as did this controlling element of the people of the United States. The practical character, as well as the political genius, of the Americans was never shown to better advantage than at the outbreak of the Revolution, when the quarrel with the mother country was manifesting itself in the conflict between the Governors, and other appointed agents of the Crown, and the popularly elected houses of the colonial legislatures. When the Crown resorted to dissolving the legislatures, the revolting colonists kept up and observed the forms of government. When the legislature was prevented from meeting, the members would come together and call themselves a congress or a convention, and, instead of adopting laws or orders, would issue what were really nothing more than recommendations, but which they expected would be obeyed by their supporters. To enforce these recommendations extra-legal committees, generally backed by public opinion and sometimes concretely supported by an organized "mob," would meet in towns and counties and would be often effectively centralized where the opponents of the British policy were in control. In several of the colonies the want of orderly government became so serious that, in 1775, the Continental Congress advised them to form temporary governments until the trouble with Great Britain had been settled. When independence was declared Congress recommended to all the States that they should adopt governments of their own. In accordance with that recommendation, in the course of a very few years each State established an independent government and adopted a written constitution. It was a time when men believed in the social contract or the "compact theory of the state," that states originated through agreement, as the case might be, between king and nobles, between king and people, or among the people themselves. In support of this doctrine no less an authority than the Bible was often quoted, such a passage for example as II Samuel v, 3: "So all the elders of Israel came to the King to Hebron; and King David made a covenant with them in Hebron before the Lord; and they anointed David King over Israel." As a philosophical speculation to explain why people were governed or consented to be governed, this theory went back at least to the Greeks, and doubtless much earlier; and, though of some significance in medieval thought, it became of greater importance in British political philosophy, especially through the works of Thomas Hobbes and John Locke. A very practical application of the compact theory was made in the English Revolution of 1688, when in order to avoid the embarrassment of deposing the king, the convention of the Parliament adopted the resolution: "That King James the Second, having endeavored to subvert the Constitution of the Kingdom, by breaking the original Contract between King and People, and having, by the advice of Jesuits, and other wicked persons, violated the fundamental Laws, and withdrawn himself out of this Kingdom, has abdicated the Government, and that the throne is hereby vacant." These theories were developed by Jean Jacques Rousseau in his Contrat Social--a book so attractively written that it eclipsed all other works upon the subject and resulted in his being regarded as the author of the doctrine--and through him they spread all over Europe. Conditions in America did more than lend color to pale speculation; they seemed to take this hypothesis out of the realm of theory and to give it practical application. What happened when men went into the wilderness to live? The Pilgrim Fathers on board the Mayflower entered into an agreement which was signed by the heads of families who took part in the enterprise: "We, whose names are underwritten ... Do by these presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick." Other colonies, especially in New England, with this example before them of a social contract entered into similar compacts or "plantation covenants," as they were called. But the colonists were also accustomed to having written charters granted which continued for a time at least to mark the extent of governmental powers. Through this intermingling of theory and practice it was the most natural thing in the world, when Americans came to form their new State Governments, that they should provide written instruments framed by their own representatives, which not only bound them to be governed in this way but also placed limitations upon the governing bodies. As the first great series of written constitutions, these frames of government attracted wide attention. Congress printed a set for general distribution, and numerous editions were circulated both at home and abroad. The constitutions were brief documents, varying from one thousand to twelve thousand words in length, which established the framework of the governmental machinery. Most of them, before proceeding to practical working details, enunciated a series of general principles upon the subject of government and political morality in what were called declarations or bills of rights. The character of these declarations may be gathered from the following excerpts: That all men are by nature equally free and independent, and have certain inherent rights, ... the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services. The body politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised. That general warrants, ... are grievous and oppressive, and ought not to be granted. All penalties ought to be proportioned to the nature of the offence. That sanguinary laws ought to be avoided, as far as is consistent with the safety of the State; and no law, to inflict cruel and unusual pains and penalties, ought to be made in any case, or at any time hereafter. No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines ... Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; ... That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments. It will be perceived at once that these are but variations of the English Declaration of Rights of 1689, which indeed was consciously followed as a model; and yet there is a world-wide difference between the English model and these American copies. The earlier document enunciated the rights of English subjects, the recent infringement of which made it desirable that they should be reasserted in convincing form. The American documents asserted rights which the colonists generally had enjoyed and which they declared to be "governing principles for all peoples in all future times." But the greater significance of these State Constitutions is to be found in their quality as working instruments of government. There was indeed little difference between the old colonial and the new State Governments. The inhabitants of each of the Thirteen States had been accustomed to a large measure of self-government, and when they took matters into their own hands they were not disposed to make any radical changes in the forms to which they had become accustomed. Accordingly the State Governments that were adopted simply continued a framework of government almost identical with that of colonial times. To be sure, the Governor and other appointed officials were now elected either by the people or the legislature, and so were ultimately responsible to the electors instead of to the Crown; and other changes were made which in the long run might prove of far-reaching and even of vital significance; and yet the machinery of government seemed the same as that to which the people were already accustomed. The average man was conscious of no difference at all in the working of the Government under the new order. In fact, in Connecticut and Rhode Island, the most democratic of all the colonies, where the people had been privileged to elect their own governors, as well as legislatures, no change whatever was necessary and the old charters were continued as State Constitutions down to 1818 and 1842, respectively. To one who has been accustomed to believe that the separation from a monarchical government meant the establishment of democracy, a reading of these first State Constitutions is likely to cause a rude shock. A shrewd English observer, traveling a generation later in the United States, went to the root of the whole matter in remarking of the Americans that, "When their independence was achieved their mental condition was not instantly changed. Their deference for rank and for judicial and legislative authority continued nearly unimpaired." ¹ They might declare that "all men are created equal," and bills of rights might assert that government rested upon the consent of the governed; but these constitutions carefully provided that such consent should come from property owners, and, in many of the States, from religious believers and even followers of the Christian faith. "The man of small means might vote, but none save well-to-do Christians could legislate, and in many states none but a rich Christian could be a governor." ² In South Carolina, for example, a freehold of £10,000 currency was required of the Governor, Lieutenant Governor, and members of the Council; £2,000 of the members of the Senate; and, while every elector was eligible to the House of Representatives, he had to acknowledge the being of a God and to believe in a future state of rewards and punishments, as well as to hold "a freehold at least of fifty acres of land, or a town lot." ¹ George Combe, Tour of the United States, vol. i, p. 205. ² McMaster, Acquisition of Industrial, Popular, and Political Rights of Man in America, p. 20. It was government by a property-owning class, but in comparison with other countries this class represented a fairly large and increasing proportion of the population. In America the opportunity of becoming a property-owner was open to every one, or, as that phrase would then have been understood, to most white men. This system of class control is illustrated by the fact that, with the exception of Massachusetts, the new State Constitutions were never submitted to the people for approval. The democratic sympathizer of today is inclined to point to those first State Governments as a continuance of the old order. But to the conservative of that time it seemed as if radical and revolutionary changes were taking place. The bills of rights declared, "That no men, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services." Property qualifications and other restrictions on office-holding and the exercise of the suffrage were lessened. Four States declared in their constitutions against the entailment of estates, and primogeniture was abolished in aristocratic Virginia. There was a fairly complete abolition of all vestiges of feudal tenure in the holding of land, so that it may be said that in this period full ownership of property was established. The further separation of church and state was also carried out. Certainly leveling influences were at work, and the people as a whole had moved one step farther in the direction of equality and democracy, and it was well that the Revolution was not any more radical and revolutionary than it was. The change was gradual and therefore more lasting. One finds readily enough contemporary statements to the effect that, "Although there are no nobles in America, there is a class of men denominated 'gentlemen,' who, by reason of their wealth, their talents, their education, their families, or the offices they hold, aspire to a preëminence," but, the same observer adds, this is something which "the people refuse to grant them." Another contemporary contributes the observation that there was not so much respect paid to gentlemen of rank as there should be, and that the lower orders of people behave as if they were on a footing of equality with them. Whether the State Constitutions are to be regarded as property-conserving, aristocratic instruments, or as progressive documents, depends upon the point of view. And so it is with the spirit of union or of nationality in the United States. One student emphasizes the fact of there being "thirteen independent republics differing ... widely in climate, in soil, in occupation, in everything which makes up the social and economic life of the people"; while another sees "the United States a nation." There is something to be said for both sides, and doubtless the truth lies between them, for there were forces making for disintegration as well as for unification. To the student of the present day, however, the latter seem to have been the stronger and more important, although the possibility was never absent that the thirteen States would go their separate ways. There are few things so potent as a common danger to bring discordant elements into working harmony. Several times in the century and a half of their existence, when the colonies found themselves threatened by their enemies, they had united, or at least made an effort to unite, for mutual help. The New England Confederation of 1643 was organized primarily for protection against the Indians and incidentally against the Dutch and French. Whenever trouble threatened with any of the European powers or with the Indians--and that was frequently--a plan would be broached for getting the colonies to combine their efforts, sometimes for the immediate necessity and sometimes for a broader purpose. The best known of these plans was that presented to the Albany Congress of 1754, which had been called to make effective preparation for the inevitable struggle with the French and Indians. The beginning of the troubles which culminated in the final breach with Great Britain had quickly brought united action in the form of the Stamp Act Congress of 1765, in the Committees of Correspondence, and then in the Continental Congress. It was not merely that the leaven of the Revolution was already working to bring about the freer interchange of ideas; instinct and experience led the colonies to united action. The very day that the Continental Congress appointed a committee to frame a declaration of independence, another committee was ordered to prepare articles of union. A month later, as soon as the Declaration of Independence had been adopted, this second committee, of which John Dickinson of Pennsylvania was chairman, presented to Congress a report in the form of Articles of Confederation. Although the outbreak of fighting made some sort of united action imperative, this plan of union was subjected to debate intermittently for over sixteen months and even after being adopted by Congress, toward the end of 1777, it was not ratified by the States until March, 1781, when the war was already drawing to a close. The exigencies of the hour forced Congress, without any authorization, to act as if it had been duly empowered and in general to proceed as if the Confederation had been formed. Benjamin Franklin was an enthusiast for union. It was he who had submitted the plan of union to the Albany Congress in 1754, which with modifications was recommended by that congress for adoption. It provided for a Grand Council of representatives chosen by the legislature of each colony, the members to be proportioned to the contribution of that colony to the American military service. In matters concerning the colonies as a whole, especially in Indian affairs, the Grand Council was to be given extensive powers of legislation and taxation. The executive was to be a President or Governor-General, appointed and paid by the Crown, with the right of nominating all military officers, and with a veto upon all acts of the Grand Council. The project was far in advance of the times and ultimately failed of acceptance, but in 1775, with the beginning of the troubles with Great Britain, Franklin took his Albany plan and, after modifying it in accordance with the experience of twenty years, submitted it to the Continental Congress as a new plan of government under which the colonies might unite. Franklin's plan of 1775 seems to have attracted little attention in America, and possibly it was not generally known; but much was made of it abroad, where it soon became public, probably in the same way that other Franklin papers came out. It seems to have been his practice to make, with his own hand, several copies of such a document, which he would send to his friends with the statement that as the document in question was confidential they might not otherwise see a copy of it. Of course the inevitable happened, and such documents found their way into print to the apparent surprise and dismay of the author. Incidentally this practice caused confusion in later years, because each possessor of such a document would claim that he had the original. Whatever may have been the procedure in this particular case, it is fairly evident that Dickinson's committee took Franklin's plan of 1775 as the starting point of its work, and after revision submitted it to Congress as their report; for some of the most important features of the Articles of Confederation are to be found, sometimes word for word, in Franklin's draft. This explanation of the origin of the Articles of Confederation is helpful and perhaps essential in understanding the form of government established, because that government in its main features had been devised for an entirely different condition of affairs, when a strong, centralized government would not have been accepted even if it had been wanted. It provided for a "league of friendship," with the primary purpose of considering preparation for action rather than of taking the initiative. Furthermore, the final stages of drafting the Articles of Confederation had occurred at the outbreak of the war, when the people of the various States were showing a disposition to follow readily suggestions that came from those whom they could trust and when they seemed to be willing to submit without compulsion to orders from the same source. These circumstances, quite as much as the inexperience of Congress and the jealousy of the States, account for the inefficient form of government which was devised; and inefficient the Confederation certainly was. The only organ of government was a Congress in which every State was entitled to one vote and was represented by a delegation whose members were appointed annually as the legislature of the State might direct, whose expenses were paid by the State, and who were subject to recall. In other words, it was a council of States whose representatives had little incentive to independence of action. Extensive powers were granted to this Congress "of determining on peace and war, ... of entering into treaties and alliances," of maintaining an army and a navy, of establishing post offices, of coining money, and of making requisitions upon the States for their respective share of expenses "incurred for the common defence or general welfare." But none of these powers could be exercised without the consent of nine States, which was equivalent to requiring a two-thirds vote, and even when such a vote had been obtained and a decision had been reached, there was nothing to compel the individual States to obey beyond the mere declaration in the Articles of Confederation that, "Every State shall abide by the determinations of the United States in Congress assembled." No executive was provided for except that Congress was authorized "to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction." In judicial matters, Congress was to serve as "the last resort on appeal in all disputes and differences" between States; and Congress might establish courts for the trial of piracy and felonies committed on the high seas and for determining appeals in cases of prize capture. The plan of a government was there but it lacked any driving force. Congress might declare war but the States might decline to participate in it; Congress might enter into treaties but it could not make the States live up to them; Congress might borrow money but it could not be sure of repaying it; and Congress might decide disputes without being able to make the parties accept the decision. The pressure of necessity might keep the States together for a time, yet there is no disguising the fact that the Articles of Confederation formed nothing more than a gentlemen's agreement. CHAPTER IV THE NORTHWEST ORDINANCE The population of the United States was like a body of water that was being steadily enlarged by internal springs and external tributaries. It was augmented both from within and from without, from natural increase and from immigration. It had spread over the whole coast from Maine to Georgia and slowly back into the interior, at first along the lines of river communication and then gradually filling up the spaces between until the larger part of the available land east of the Alleghany Mountains was settled. There the stream was checked as if dammed by the mountain barrier, but the population was trickling through wherever it could find an opening, slowly wearing channels, until finally, when the obstacles were overcome, it broke through with a rush. Twenty years before the Revolution the expanding population had reached the mountains and was ready to go beyond. The difficulty of crossing the mountains was not insuperable, but the French and Indian War, followed by Pontiac's Conspiracy, made outlying frontier settlement dangerous if not impossible. The arbitrary restriction of western settlement by the Proclamation of 1763 did not stop the more adventurous but did hold back the mass of the population until near the time of the Revolution, when a few bands of settlers moved into Kentucky and Tennessee and rendered important but inconspicuous service in the fighting. But so long as the title to that territory was in doubt no considerable body of people would move into it, and it was not until the Treaty of Peace in 1783 determined that the western country as far as the Mississippi River was to belong to the United States that the dammed-up population broke over the mountains in a veritable flood. The western country and its people presented no easy problem to the United States: how to hold those people when the pull was strong to draw them from the Union; how to govern citizens so widely separated from the older communities; and, of most immediate importance, how to hold the land itself. It was, indeed, the question of the ownership of the land beyond the mountains which delayed the ratification of the Articles of Confederation. Some of the States, by right of their colonial charter grants "from sea to sea," were claiming large parts of the western region. Other States, whose boundaries were fixed, could put forward no such claims; and, as they were therefore limited in their area of expansion, they were fearful lest in the future they should be overbalanced by those States which might obtain extensive property in the West. It was maintained that the Proclamation of 1763 had changed this western territory into "Crown lands," and as, by the Treaty of Peace, the title had passed to the United States, the non-claimant States had demanded in self-defense that the western land should belong to the country as a whole and not to the individual States. Rhode Island, Maryland, and Delaware were most seriously affected, and they were insistent upon this point. Rhode Island and at length Delaware gave in, so that by February, 1779, Maryland alone held out. In May of that year the instructions of Maryland to her delegates were read in Congress, positively forbidding them to ratify the plan of union unless they should receive definite assurances that the western country would become the common property of the United States. As the consent of all of the Thirteen States was necessary to the establishment of the Confederation, this refusal of Maryland brought matters to a crisis. The question was eagerly discussed, and early in 1780 the deadlock was broken by the action of New York in authorizing her representatives to cede her entire claim in western lands to the United States. It matters little that the claim of New York was not as good as that of some of the other States, especially that of Virginia. The whole situation was changed. It was no longer necessary for Maryland to defend her position; but the claimant States were compelled to justify themselves before the country for not following New York's example. Congress wisely refrained from any assertion of jurisdiction, and only urgently recommended that States having claims to western lands should cede them in order that the one obstacle to the final ratification of the Articles of Confederation might be removed. Without much question Virginia's claim was the strongest; but the pressure was too great even for her, and she finally yielded, ceding to the United States, upon certain conditions, all her lands northwest of the Ohio River. Then the Maryland delegates were empowered to ratify the Articles of Confederation. This was early in 1781, and in a very short time the other States had followed the example of New York and Virginia. Certain of the conditions imposed by Virginia were not acceptable to Congress, and three years later, upon specific request, that State withdrew the objectionable conditions and made the cession absolute. The territory thus ceded, north and west of the Ohio River, constituted the public domain. Its boundaries were somewhat indefinite, but subsequent surveys confirmed the rough estimate that it contained from one to two hundred millions of acres. It was supposed to be worth, on the average, about a dollar an acre, which would make this property an asset sufficient to meet the debts of the war and to leave a balance for the running expenses of the Government. It thereby became one of the strong bonds holding the Union together. "Land!" was the first cry of the storm-tossed mariners of Columbus. For three centuries the leading fact of American history has been that soon after 1600 a body of Europeans, mostly Englishmen, settled on the edge of the greatest piece of unoccupied agricultural land in the temperate zone, and proceeded to subdue it to the uses of man. For three centuries the chief task of American mankind has been to go up westward against the land and to possess it. Our wars, our independence, our state building, our political democracy, our plasticity with respect to immigration, our mobility of thought, our ardor of initiative, our mildness and our prosperity, all are but incidents or products of this prime historical fact. ¹ ¹ Lecture by J. Franklin Jameson before the Trustees of the Carnegie Institution, at Washington, in 1912, printed in the History Teacher's Magazine, vol. iv, 1913, p. 5. It is seldom that one's attention is so caught and held as by the happy suggestion that American interest in land--or rather interest in American land--began with the discovery of the continent. Even a momentary consideration of the subject, however, is sufficient to indicate how important was the desire for land as a motive of colonization. The foundation of European governmental and social organizations had been laid in feudalism--a system of landholding and service. And although European states might have lost their original feudal character, and although new classes had arisen, land-holding still remained the basis of social distinction. One can readily imagine that America would be considered as El Dorado, where one of the rarest commodities as well as one of the most precious possessions was found in almost unlimited quantities and could be had for the asking. It is no wonder that family estates were sought in America and that to the lower classes it seemed as if a heaven were opening on earth. Even though available land appeared to be almost unlimited in quantity and easy to acquire, it was a possession that was generally increasing in value. Of course wasteful methods of farming wore out some lands, especially in the South; but, taking it by and large throughout the country, with time and increasing density of population the value of the land was increasing. The acquisition of land was a matter of investment or at least of speculation. In fact, the purchase of land was one of the favorite get-rich-quick schemes of the time. George Washington was not the only man who invested largely in western lands. A list of those who did would read like a political or social directory of the time. Patrick Henry, James Wilson, Robert Morris, Gouverneur Morris, Chancellor Kent, Henry Knox, and James Monroe were among them. ¹ ¹ Not all the speculators were able to keep what they acquired. Fifteen million acres of land in Kentucky were offered for sale in 1800 for non-payment of taxes. Channing, History of the United States, vol. iv, p. 91. It is therefore easy to understand why so much importance attached to the claims of the several States and to the cession of that western land by them to the United States. But something more was necessary. If the land was to attain anything like its real value, settlers must be induced to occupy it. Of course it was possible to let the people go out as they pleased and take up land, and to let the Government collect from them as might be possible at a fixed rate. But experience during colonial days had shown the weakness of such a method, and Congress was apparently determined to keep under its own control the region which it now possessed, to provide for orderly sale, and to permit settlement only so far as it might not endanger the national interests. The method of land sales and the question of government for the western country were recognized as different aspects of the same problem. The Virginia offer of cession forced the necessity of a decision, and no sooner was the Virginia offer framed in an acceptable form, in 1783, than two committees were appointed by Congress to report upon these two questions of land sales and of government. Thomas Jefferson was made chairman of both these committees. He was then forty years old and one of the most remarkable men in the country. Born on the frontier--his father from the upper middle class, his mother "a Randolph"--he had been trained to an outdoor life; but he was also a prodigy in his studies and entered William and Mary College with advanced standing at the age of eighteen. Many stories are told of his precocity and ability, all of which tend to forecast the later man of catholic tastes, omnivorous interest, and extensive but superficial knowledge; he was a strange combination of natural aristocrat and theoretical democrat, of philosopher and practical politician. After having been a student in the law office of George Wythe, and being a friend of Patrick Henry, Jefferson early espoused the cause of the Revolution, and it was his hand that drafted the Declaration of Independence. He then resigned from Congress to assist in the organization of government in his own State. For two years and a half he served in the Virginia Assembly and brought about the repeal of the law of entailment, the abolition of primogeniture, the recognition of freedom of conscience, and the encouragement of education. He was Governor of Virginia for two years and then, having declined reëlection, returned to Congress in 1783. There, among his other accomplishments, as chairman of the committee, he reported the Treaty of Peace and, as chairman of another committee, devised and persuaded Congress to adopt a national system of coinage which in its essentials is still in use. It is easy to criticize Jefferson and to pick flaws in the things that he said as well as in the things that he did, but practically every one admits that he was closely in touch with the course of events and understood the temper of his contemporaries. In this period of transition from the old order to the new, he seems to have expressed the genius of American institutions better than almost any other man of his generation. He possessed a quality that enabled him, in the Declaration of Independence, to give voice to the hopes and aspirations of a rising nationality and that enabled him in his own State to bring about so many reforms. Just how much actual influence Thomas Jefferson had in the framing of the American land policy is not clear. Although the draft of the committee report in 1784 is in Jefferson's handwriting, it is altogether probable that more credit is to be given to Thomas Hutchins, the Geographer of the United States, and to William Grayson of Virginia, especially for the final form which the measure took; for Jefferson retired from the chairmanship and had already gone to Europe when the Land Ordinance was adopted by Congress in 1785. This ordinance has been superseded by later enactments, to which references are usually made; but the original ordinance is one of the great pieces of American legislation, for it contained the fundamentals of the American land system which, with the modifications experience has introduced, has proved to be permanently workable and which has been envied and in several instances copied by other countries. Like almost all successful institutions of that sort, the Land Ordinance of 1785 was not an immediate creation but was a development out of former practices and customs and was in the nature of a compromise. Its essential features were the method of survey and the process for the sale of land. New England, with its town system, had in the course of its expansion been accustomed to proceed in an orderly method but on a relatively small scale. The South, on the other hand, had granted lands on a larger scale and had permitted individual selection in a haphazard manner. The plan which Congress adopted was that of the New England survey with the Southern method of extensive holdings. The system is repellent in its rectangular orderliness, but it made the process of recording titles easy and complete, and it was capable of indefinite expansion. These were matters of cardinal importance, for in the course of one hundred and forty years the United States was to have under its control nearly two thousand million acres of land. The primary feature of the land policy was the orderly survey in advance of sale. In the next place the township was taken as the unit, and its size was fixed at six miles square. Provision was then made for the sale of townships alternately entire and by sections of one mile square, or 640 acres each. In every township a section was reserved for educational purposes; that is, the land was to be disposed of and the proceeds used for the development of public schools in that region. And, finally, the United States reserved four sections in the center of each township to be disposed of at a later time. It was expected that a great increase in the value of the land would result, and it was proposed that the Government should reap a part of the profits. It is evident that the primary purpose of the public land policy as first developed was to acquire revenue for the Government; but it was also evident that there was a distinct purpose of encouraging settlement. The two were not incompatible, but the greater interest of the Government was in obtaining a return for the property. The other committee of which Jefferson was chairman made its report of a plan for the government of the western territory upon the very day that the Virginia cession was finally accepted, March 1, 1784; and with some important modifications Jefferson's ordinance, or the Ordinance of 1784 as it was commonly called, was ultimately adopted. In this case Jefferson rendered a service similar to that of framing the Declaration of Independence. His plan was somewhat theoretical and visionary, but largely practical, and it was constructive work of a high order, displaying not so much originality as sympathetic appreciation of what had already been done and an instinctive forecast of future development. Jefferson seemed to be able to gather up ideas, some conscious and some latent in men's minds, and to express them in a form that was generally acceptable. It is interesting to find in the Articles of Confederation (Article XI) that, "Canada acceding to this confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union: but no other colony shall be admitted into the same unless such admission be agreed to by nine States." The real importance of this article lay in the suggestion of an enlargement of the Confederation. The Confederation was never intended to be a union of only thirteen States. Before the cession of their western claims it seemed to be inevitable that some of the States should be broken up into several units. At the very time that the formation of the Confederation was under discussion Vermont issued a declaration of independence from New York and New Hampshire, with the expectation of being admitted into the Union. It was impolitic to recognize the appeal at that time, but it seems to have been generally understood that sooner or later Vermont would come in as a full-fledged State. It might have been a revolutionary suggestion by Maryland, when the cession of western lands was under discussion, that Congress should have sole power to fix the western boundaries of the States, but her further proposal was not even regarded as radical, that Congress should "lay out the land beyond the boundaries so ascertained into separate and independent states." It seems to have been taken as a matter of course in the procedure of Congress and was accepted by the States. But the idea was one thing; its carrying out was quite another. Here was a great extent of western territory which would be valuable only as it could be sold to prospective settlers. One of the first things these settlers would demand was protection--protection against the Indians, possibly also against the British and the Spanish, and protection in their ordinary civil life. The former was a detail of military organization and was in due time provided by the establishment of military forts and garrisons; the latter was the problem which Jefferson's committee was attempting to solve. The Ordinance of 1784 disregarded the natural physical features of the western country and, by degrees of latitude and meridians of longitude, arbitrarily divided the public domain into rectangular districts, to the first of which the following names were applied: Sylvania, Michigania, Cherronesus, Assenisipia, Metropotamia, Illinoia, Saratoga, Washington, Polypotamia, Pelisipia. The amusement which this absurd and thoroughly Jeffersonian nomenclature is bound to cause ought not to detract from the really important features of the Ordinance. In each of the districts into which the country was divided the settlers might be authorized by Congress, for the purpose of establishing a temporary government, to adopt the constitution and laws of any one of the original States. When any such area should have twenty thousand free inhabitants it might receive authority from Congress to establish a permanent constitution and government and should be entitled to a representative in Congress with the right of debating but not of voting. And finally, when the inhabitants of any one of these districts should equal in number those of the least populous of the thirteen original States, their delegates should be admitted into Congress on an equal footing. Jefferson's ordinance, though adopted, was never put into operation. Various explanations have been offered for this failure to give it a fair trial. It has been said that Jefferson himself was to blame. In the original draft of his ordinance Jefferson had provided for the abolition of slavery in the new States after the year 1800, and when Congress refused to accept this clause Jefferson, in a manner quite characteristic, seemed to lose all interest in the plan. There were, however, other objections, for there were those who felt that it was somewhat indefinite to promise admission into the Confederation of certain sections of the country as soon as their population should equal in number that of the least populous of the original States. If the original States should increase in population to any extent, the new States might never be admitted. But on the other hand, if from any cause the population of one of the smaller States should suddenly decrease, might not the resulting influx of new States prove dangerous? But the real reason why the ordinance remained a dead letter was that, while it fixed the limits within which local governments might act, it left the creation of those governments wholly to the future. At Vincennes, for example, the ordinance made no change in the political habits of the people. "The local government bowled along merrily under this system. There was the greatest abundance of government, for the more the United States neglected them the more authority their officials assumed." ¹ Nor could the ordinance operate until settlers became numerous. It was partly, indeed, to hasten settlement that the Ordinance of 1785 for the survey and sale of the public lands was passed. ² ¹ Jacob Piat Dunn, Jr., Indiana: A Redemption from Slavery, 1888. ² Although the machinery was set in motion, by the appointment of men and the beginning of work, it was not until 1789 that the survey of the first seven ranges of townships was completed and the land offered for sale. In the meantime efforts were being made by Congress to improve the unsatisfactory ordinance for the government of the West. Committees were appointed, reports were made, and at intervals of weeks or months the subject was considered. Some amendments were actually adopted, but Congress, notoriously inefficient, hesitated to undertake a fundamental revision of the ordinance. Then, suddenly, in July, 1787, after a brief period of adjournment, Congress took up this subject and within a week adopted the now famous Ordinance of 1787. The stimulus which aroused Congress to activity seems to have come from the Ohio Company. From the very beginning of the public domain there was a strong sentiment in favor of using western land for settlement by Revolutionary soldiers. Some of these lands had been offered as bounties to encourage enlistment, and after the war the project of soldiers' settlement in the West was vigorously agitated. The Ohio Company of Associates was made up of veterans of the Revolution, who were looking for homes in the West, and of other persons who were willing to support a worthy cause by a subscription which might turn out to be a good investment. The company wished to buy land in the West, and Congress had land which it wished to sell. Under such circumstances it was easy to strike a bargain. The land, as we have seen, was roughly estimated at one dollar an acre; but, as the company wished to purchase a million acres, it demanded and obtained wholesale rates of two-thirds of the usual price. It also obtained the privilege of paying at least a portion in certificates of Revolutionary indebtedness, some of which were worth about twelve and a half cents on the dollar. Only a little calculation is required to show that a large quantity of land was therefore sold at about eight or nine cents an acre. It was in connection with this land sale that the Ordinance of 1787 was adopted. The promoter of this enterprise undertaken by the Ohio Company was Manasseh Cutler of Ipswich, Massachusetts, a clergyman by profession who had served as a chaplain in the Revolutionary War. But his interests and activities extended far beyond the bounds of his profession. When the people of his parish were without proper medical advice he applied himself to the study and practice of medicine. At about the same time he took up the study of botany, and because of his describing several hundred species of plants he is regarded as the pioneer botanist of New England. His next interest seems to have grown out of his Revolutionary associations, for it centered in this project for settlement of the West, and he was appointed the agent of the Ohio Company. It was in this capacity that he had come to New York and made the bargain with Congress which has just been described. Cutler must have been a good lobbyist, for Congress was not an efficient body, and unremitting labor, as well as diplomacy, was required for so large and important a matter. Two things indicate his method of procedure. In the first place he found it politic to drop his own candidate for the governorship of the new territory and to endorse General Arthur St. Clair, then President of Congress. And in the next place he accepted the suggestion of Colonel William Duer for the formation of another company, known as the Scioto Associates, to purchase five million acres of land on similar terms, "but that it should be kept a profound secret." It was not an accident that Colonel Duer was Secretary of the Board of the Treasury through whom these purchases were made, nor that associated with him in this speculation were "a number of the principal characters in the city." These land deals were completed afterwards, but there is little doubt that there was a direct connection between them and the adoption of the ordinance of government. The Ordinance of 1787 was so successful in its working and its renown became so great that claims of authorship, even for separate articles, have been filed in the name of almost every person who had the slightest excuse for being considered. Thousands of pages have been written in eulogy and in dispute, to the helpful clearing up of some points and to the obscuring of others. But the authorship of this or of that clause is of much less importance than the scope of the document as a working plan of government. As such the Ordinance of 1787 owes much to Jefferson's Ordinance of 1784. Under the new ordinance a governor and three judges were to be appointed who, along with their other functions, were to select such laws as they thought best from the statute books of all the States. The second stage in self-government would be reached when the population contained five thousand free men of age; then the people were to have a representative legislature with the usual privilege of making their own laws. Provision was made for dividing the whole region northwest of the Ohio River into three or four or five districts and the final stage of government was reached when any one of these districts had sixty thousand free inhabitants, for it might then establish its own constitution and government and be admitted into the Union on an equal footing with the original States. The last-named provision for admission into the Union, being in the nature of a promise for the future, was not included in the body of the document providing for the government, but was contained in certain "articles of compact, between the original States and the people and States in the said territory, [which should] forever remain unalterable, unless by common consent." These articles of compact were in general similar to the bills of rights in State Constitutions; but one of them found no parallel in any State Constitution. Article VI reads: "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted." This has been hailed as a farsighted, humanitarian measure, and it is quite true that many of the leading men, in the South as well as in the North, were looking forward to the time when slavery would be abolished. But the motives predominating at the time were probably more nearly represented by Grayson, who wrote to James Monroe, three weeks after the ordinance was passed: "The clause respecting slavery was agreed to by the southern members for the purpose of preventing tobacco and indigo from being made on the northwest side of the Ohio, as well as for several other political reasons." It is over one hundred and forty years since the Ordinance of 1787 was adopted, during which period more than thirty territories of the United States have been organized, and there has never been a time when one or more territories were not under Congressional supervision, so that the process of legislative control has been continuous. Changes have been made from time to time in order to adapt the territorial government to changed conditions, but for fifty years the Ordinance of 1787 actually remained in operation, and even twenty years later it was specifically referred to by statute. The principles of territorial government today are identical with those of 1787, and those principles comprise the largest measure of local self-government compatible with national control, a gradual extension of self-government to the people of a territory, and finally complete statehood and admission into the Union on a footing of equality with the other States. In 1825, when the military occupation of Oregon was suggested in Congress, Senator Dickerson of New Jersey objected, saying, "We have not adopted a system of colonization and it is to be hoped we never shall." Yet that is just what America has always had. Not only were the first settlers on the Atlantic coast colonists from Europe; but the men who went to the frontier were also colonists from the Atlantic seaboard. And the men who settled the States in the West were colonists from the older communities. The Americans had so recently asserted their independence that they regarded the name of colony as not merely indicating dependence but as implying something of inferiority and even of reproach. And when the American colonial system was being formulated in 1783-87 the word "Colony" was not used. The country under consideration was the region west of the Alleghany Mountains and in particular the territory north and west of the Ohio River and, being so referred to in the documents, the word "Territory" became the term applied to all the colonies. The Northwest Territory increased so rapidly in population that in 1800 it was divided into two districts, and in 1802 the eastern part was admitted into the Union as the State of Ohio. The rest of the territory was divided in 1805 and again in 1809; Indiana was admitted as a State in 1816 and Illinois in 1818. So the process has gone on. There were thirteen original States and six more have become members of the Union without having been through the status of territories, making nineteen in all; while twenty-nine States have developed from the colonial stage. The incorporation of the colonies into the Union is not merely a political fact; the inhabitants of the colonies become an integral part of the parent nation and in turn become the progenitors of new colonies. If such a process be long continued, the colonies will eventually outnumber the parent States, and the colonists will outnumber the citizens of the original States and will themselves become the nation. Such has been the history of the United States and its people. By 1850, indeed, one-half of the population of the United States was living west of the Alleghany Mountains, and at the present time approximately seventy per cent are to be found in the West. The importance of the Ordinance of 1787 was hardly overstated by Webster in his famous debate with Hayne when he said: "We are accustomed ... to praise the lawgivers of antiquity; we help to perpetuate the fame of Solon and Lycurgus; but I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked and lasting character than the Ordinance of 1787." While improved means of communication and many other material ties have served to hold the States of the Union together, the political bond was supplied by the Ordinance of 1787, which inaugurated the American colonial system. CHAPTER V DARKNESS BEFORE DAWN John Fiske summed up the prevailing impression of the government of the Confederation in the title to his volume, The Critical Period of American History. "The period of five years," says Fiske, "following the peace of 1783 was the most critical moment in all the history of the American people. The dangers from which we were saved in 1788 were even greater than were the dangers from which we were saved in 1865." Perhaps the plight of the Confederation was not so desperate as he would have us believe, but it was desperate enough. Two incidents occurring between the signing of the preliminary terms of peace and the definitive treaty reveal the danger in which the country stood. The main body of continental troops made up of militiamen and short-term volunteers--always prone to mutinous conduct--was collected at Newburg on the Hudson, watching the British in New York. Word might come at any day that the treaty had been signed, and the army did not wish to be disbanded until certain matters had been settled--primarily the question of their pay. The officers had been promised half-pay for life, but nothing definite had been done toward carrying out the promise. The soldiers had no such hope to encourage them, and their pay was sadly in arrears. In December, 1782, the officers at Newburg drew up an address in behalf of themselves and their men and sent it to Congress. Therein they made the threat, thinly veiled, of taking matters into their own hands unless their grievances were redressed. There is reason to suppose that back of this movement--or at least in sympathy with it--were some of the strongest men in civil as in military life, who, while not fomenting insurrection, were willing to bring pressure to bear on Congress and the States. Congress was unable or unwilling to act, and in March, 1783, a second paper, this time anonymous, was circulated urging the men not to disband until the question of pay had been settled and recommending a meeting of officers on the following day. If Washington's influence was not counted upon, it was at least hoped that he would not interfere; but as soon as he learned of what had been done he issued general orders calling for a meeting of officers on a later day, thus superseding the irregular meeting that had been suggested. On the day appointed the Commander-in-Chief appeared and spoke with so much warmth and feeling that his "little address ... drew tears from many of the officers." He inveighed against the unsigned paper and against the methods that were talked of, for they would mean the disgrace of the army, and he appealed to the patriotism of the officers, promising his best efforts in their behalf. The effect was so strong that, when Washington withdrew, resolutions were adopted unanimously expressing their loyalty and their faith in the justice of Congress and denouncing the anonymous circular. The general apprehension was not diminished by another incident in June. Some eighty troops of the Pennsylvania line in camp at Lancaster marched to Philadelphia and drew up before the State House, where Congress was sitting. Their purpose was to demand better treatment and the payment of what was owed to them. So far it was an orderly demonstration, although not in keeping with military regulations; in fact the men had broken away from camp under the lead of noncommissioned officers. But when they had been stimulated by drink the disorder became serious. The humiliating feature of the situation was that Congress could do nothing, even in self-protection. They appealed to the Pennsylvania authorities and, when assistance was refused, the members of Congress in alarm fled in the night and three days later gathered in the college building in Princeton. Congress became the butt of many jokes, but men could not hide the chagrin they felt that their Government was so weak. The feeling deepened into shame when the helplessness of Congress was displayed before the world. Weeks and even months passed before a quorum could be obtained to ratify the treaty recognizing the independence of the United States and establishing peace. Even after the treaty was supposed to be in force the States disregarded its provisions and Congress could do nothing more than utter ineffective protests. But, most humiliating of all, the British maintained their military posts within the northwestern territory ceded to the United States, and Congress could only request them to retire. The Americans' pride was hurt and their pockets were touched as well, for an important issue at stake was the control of the lucrative fur trade. So resentment grew into anger; but the British held on, and the United States was powerless to make them withdraw. To make matters worse, the Confederation, for want of power to levy taxes, was facing bankruptcy, and Congress was unable to devise ways and means to avert a crisis. The Second Continental Congress had come into existence in 1775. It was made up of delegations from the various colonies, appointed in more or less irregular ways, and had no more authority than it might assume and the various colonies were willing to concede; yet it was the central body under which the Revolution had been inaugurated and carried through to a successful conclusion. Had this Congress grappled firmly with the financial problem and forced through a system of direct taxation, the subsequent woes of the Confederation might have been mitigated and perhaps averted. In their enthusiasm over the Declaration of Independence the people--by whom is meant the articulate class consisting largely of the governing and commercial elements--would probably have accepted such a usurpation of authority. But with their lack of experience it is not surprising that the delegates to Congress did not appreciate the necessity of such radical action and so were unwilling to take the responsibility for it. They counted upon the goodwill and support of their constituents, which simmered down to a reliance upon voluntary grants from the States in response to appeals from Congress. These desultory grants proved to be so unsatisfactory that, in 1781, even before the Articles of Confederation had been ratified, Congress asked for a grant of additional power to levy a duty of five per cent ad valorem upon all goods imported into the United States, the revenue from which was to be applied to the discharge of the principal and interest on debts "contracted ... for supporting the present war." Twelve States agreed, but Rhode Island, after some hesitation, finally rejected the measure in November, 1782. The Articles of Confederation authorized a system of requisitions apportioned among the "several States in proportion to the value of all land within each State." But, as there was no power vested in Congress to force the States to comply, the situation was in no way improved when the Articles were ratified and put into operation. In fact, matters grew worse as Congress itself steadily lost ground in popular estimation, until it had become little better than a laughing-stock, and with the ending of the war its requests were more honored in the breach than in the observance. In 1782 Congress asked for $8,000,000 and the following year for $2,000,000 more, but by the end of 1783 less than $1,500,000 had been paid in. In the same year, 1783, Congress made another attempt to remedy the financial situation by proposing the so-called Revenue Amendment, according to which a specific duty was to be laid upon certain articles and a general duty of five per cent ad valorem upon all other goods, to be in operation for twenty-five years. In addition to this it was proposed that for the same period of time $1,500,000 annually should be raised by requisitions, and the definite amount for each State was specified until "the rule of the Confederation" could be carried into practice. It was then proposed that the article providing for the proportion of requisitions should be changed so as to be based not upon land values but upon population, in estimating which slaves should be counted at three-fifths of their number. In the course of three years thereafter only two States accepted the proposals in full, seven agreed to them in part, and four failed to act at all. Congress in despair then made a further representation to the States upon the critical condition of the finances and accompanied this with an urgent appeal, which resulted in all the States except New York agreeing to the proposed impost. But the refusal of one State was sufficient to block the whole measure, and there was no further hope for a treasury that was practically bankrupt. In five years Congress had received less than two and one-half million dollars from requisitions, and for the fourteen months ending January 1, 1786, the income was at the rate of less than $375,000 a year, which was not enough, as a committee of Congress reported, "for the bare maintenance of the Federal Government on the most economical establishment and in time of profound peace." In fact, the income was not sufficient even to meet the interest on the foreign debt. In the absence of other means of obtaining funds Congress had resorted early to the unfortunate expedient of issuing paper money based solely on the good faith of the States to redeem it. This fiat money held its value for some little time; then it began to shrink and, once started on the downward path, its fall was rapid. Congress tried to meet the emergency by issuing paper in increasing quantities until the inevitable happened: the paper money ceased to have any value and practically disappeared from circulation. Jefferson said that by the end of 1781 one thousand dollars of Continental scrip was worth about one dollar in specie. The States had already issued paper money of their own, and their experience ought to have taught them a lesson, but with the coming of hard times after the war, they once more proposed by issuing paper to relieve the "scarcity of money" which was commonly supposed to be one of the principal evils of the day. In 1785 and 1786 paper money parties appeared in almost all the States. In some of these the conservative element was strong enough to prevent action, but in others the movement had to run its fatal course. The futility of what they were doing should have been revealed to all concerned by proposals seriously made that the paper money which was issued should depreciate at a regular rate each year until it should finally disappear. The experience of Rhode Island is not to be regarded as typical of what was happening throughout the country but is, indeed, rather to be considered as exceptional. Yet it attracted widespread attention and revealed to anxious observers the dangers to which the country was subject if the existing condition of affairs were allowed to continue. The machinery of the State Government was captured by the paper-money party in the spring election of 1786. The results were disappointing to the adherents of the paper-money cause, for when the money was issued depreciation began at once, and those who tried to pay their bills discovered that a heavy discount was demanded. In response to indignant demands the legislature of Rhode Island passed an act to force the acceptance of paper money under penalty and thereupon tradesmen refused to make any sales at all--some closed their shops, and others tried to carry on business by exchange of wares. The farmers then retaliated by refusing to sell their produce to the shopkeepers, and general confusion and acute distress followed. It was mainly a quarrel between the farmers and the merchants, but it easily grew into a division between town and country, and there followed a whole series of town meetings and county conventions. The old line of cleavage was fairly well represented by the excommunication of a member of St. John's Episcopal Church of Providence for tendering bank notes, and the expulsion of a member of the Society of the Cincinnati for a similar cause. The contest culminated in the case of Trevett vs. Weeden, 1786, which is memorable in the judicial annals of the United States. The legislature, not being satisfied with ordinary methods of enforcement, had provided for the summary trial of offenders without a jury before a court whose judges were removable by the Assembly and were therefore supposedly subservient to its wishes. In the case in question the Superior Court boldly declared the enforcing act to be unconstitutional, and for their contumacious behavior the judges were summoned before the legislature. They escaped punishment, but only one of them was re¨elected to office. Meanwhile disorders of a more serious sort, which startled the whole country, occurred in Massachusetts. It is doubtful if a satisfactory explanation ever will be found, at least one which will be universally accepted, as to the causes and origin of Shays' Rebellion in 1786. Some historians maintain that the uprising resulted primarily from a scarcity of money, from a shortage in the circulating medium; that, while the eastern counties were keeping up their foreign trade sufficiently at least to bring in enough metallic currency to relieve the stringency and could also use various forms of credit, the western counties had no such remedy. Others are inclined to think that the difficulties of the farmers in western Massachusetts were caused largely by the return to normal conditions after the extraordinarily good times between 1776 and 1780, and that it was the discomfort attending the process that drove them to revolt. Another explanation reminds one of present-day charges against undue influence of high financial circles, when it is insinuated and even directly charged that the rebellion was fostered by conservative interests who were trying to create a public opinion in favor of a more strongly organized government. Whatever other causes there may have been, the immediate source of trouble was the enforced payment of indebtedness, which to a large extent had been allowed to remain in abeyance during the war. This postponement of settlement had not been merely for humanitarian reasons; it would have been the height of folly to collect when the currency was greatly depreciated. But conditions were supposed to have been restored to normal with the cessation of hostilities, and creditors were generally inclined to demand payment. These demands, coinciding with the heavy taxes, drove the people of western Massachusetts into revolt. Feeling ran high against lawyers who prosecuted suits for creditors, and this antagonism was easily transferred to the courts in which the suits were brought. The rebellion in Massachusetts accordingly took the form of a demonstration against the courts. A paper was carried from town to town in the County of Worcester, in which the signers promised to do their utmost "to prevent the sitting of the Inferior Court of Common Pleas for the county, or of any other court that should attempt to take property by distress." The Massachusetts Legislature adjourned in July, 1786, without remedying the trouble and also without authorizing an issue of paper money which the hard-pressed debtors were demanding. In the months following mobs prevented the courts from sitting in various towns. A special session of the legislature was then called by the Governor but, when that special session had adjourned on the 18th of November, it might just as well have never met. It had attempted to remedy various grievances and had made concessions to the malcontents, but it had also passed measures to strengthen the hands of the Governor. This only seemed to inflame the rioters, and the disorders increased. After the lower courts a move was made against the State Supreme Court, and plans were laid for a concerted movement against the cities in the eastern part of the State. Civil war seemed imminent. The insurgents were led by Daniel Shays, an officer in the army of the Revolution, and the party of law and order was represented by Governor James Bowdoin, who raised some four thousand troops and placed them under the command of General Benjamin Lincoln. The time of year was unfortunate for the insurgents, especially as December was unusually cold and there was a heavy snowfall. Shays could not provide stores and equipment and was unable to maintain discipline. A threatened attack on Cambridge came to naught for, when preparations were made to protect the city, the rebels began a disorderly retreat, and in the intense cold and deep snow they suffered severely, and many died from exposure. The center of interest then shifted to Springfield, where the insurgents were attempting to seize the United States arsenal. The local militia had already repelled the first attacks, and the appearance of General Lincoln with his troops completed the demoralization of Shays' army. The insurgents retreated, but Lincoln pursued relentlessly and broke them up into small bands, which then wandered about the country preying upon the unfortunate inhabitants. When spring came, most of them had been subdued or had taken refuge in the neighboring States. Shays' Rebellion was fairly easily suppressed, even though it required the shedding of some blood. But it was the possibility of further outbreaks that destroyed men's peace of mind. There were similar disturbances in other States; and there the Massachusetts insurgents found sympathy, support, and finally a refuge. When the worst was over, and Governor Bowdoin applied to the neighboring States for help in capturing the last of the refugees, Rhode Island and Vermont failed to respond to the extent that might have been expected of them. The danger, therefore, of the insurrection spreading was a cause of deep concern. This feeling was increased by the impotence of Congress. The Government had sufficient excuse for intervention after the attack upon the national arsenal in Springfield. Congress, indeed, began to raise troops but did not dare to admit its purpose and offered as a pretext an expedition against the Northwestern Indians. The rebellion was over before any assistance could be given. The inefficiency of Congress and its lack of influence were evident. Like the disorders in Rhode Island, Shays' Rebellion in Massachusetts helped to bring about a reaction and strengthened the conservative movement for reform. These untoward happenings, however, were only symptoms: the causes of the trouble lay far deeper. This fact was recognized even in Rhode Island, for at least one of the conventions had passed resolutions declaring that, in considering the condition of the whole country, what particularly concerned them was the condition of trade. Paradoxical as it may seem, the trade and commerce of the country were already on the upward grade and prosperity was actually returning. But prosperity is usually a process of slow growth and is seldom recognized by the community at large until it is well established. Farsighted men forecast the coming of good times in advance of the rest of the community, and prosper accordingly. The majority of the people know that prosperity has come only when it is unmistakably present, and some are not aware of it until it has begun to go. If that be true in our day, much more was it true in the eighteenth century, when means of communication were so poor that it took days for a message to go from Boston to New York and weeks for news to get from Boston to Charleston. It was a period of adjustment, and as we look back after the event we can see that the American people were adapting themselves with remarkable skill to the new conditions. But that was not so evident to the men who were feeling the pinch of hard times, and when all the attendant circumstances, some of which have been described, are taken into account, it is not surprising that commercial depression should be one of the strongest influences in, and the immediate occasion of, bringing men to the point of willingness to attempt some radical changes. The fact needs to be reiterated that the people of the United States were largely dependent upon agriculture and other forms of extractive industry, and that markets for the disposal of their goods were an absolute necessity. Some of the States, especially New England and the Middle States, were interested in the carrying trade, but all were concerned in obtaining markets. On account of jealousy interstate trade continued a precarious existence and by no means sufficed to dispose of the surplus products, so that foreign markets were necessary. The people were especially concerned for the establishment of the old trade with the West India Islands, which had been the mainstay of their prosperity in colonial times; and after the British Government, in 1783, restricted that trade to British vessels, many people in the United States were attributing hard times to British malignancy. The only action which seemed possible was to force Great Britain in particular, but other foreign countries as well, to make such trade agreements as the prosperity of the United States demanded. The only hope seemed to lie in a commercial policy of reprisal which would force other countries to open their markets to American goods. Retaliation was the dominating idea in the foreign policy of the time. So in 1784 Congress made a new recommendation to the States, prefacing it with an assertion of the importance of commerce, saying: "The fortune of every Citizen is interested in the success thereof; for it is the constant source of wealth and incentive to industry; and the value of our produce and our land must ever rise or fall in proportion to the prosperous or adverse state of trade." And after declaring that Great Britain had "adopted regulations destructive of our commerce with her West India Islands," it was further asserted: "Unless the United States in Congress assembled shall be vested with powers competent to the protection of commerce, they can never command reciprocal advantages in trade." It was therefore proposed to give to Congress for fifteen years the power to prohibit the importation or exportation of goods at American ports except in vessels owned by the people of the United States or by the subjects of foreign governments having treaties of commerce with the United States. This was simply a request for authorization to adopt navigation acts. But the individual States were too much concerned with their own interests and did not or would not appreciate the rights of the other States or the interests of the Union as a whole. And so the commercial amendment of 1784 suffered the fate of all other amendments proposed to the Articles of Confederation. In fact only two States accepted it. It usually happens that some minor occurrence, almost unnoticed at the time, leads directly to the most important consequences. And an incident in domestic affairs started the chain of events in the United States that ended in the reform of the Federal Government. The rivalry and jealousy among the States had brought matters to such a pass that either Congress must be vested with adequate powers or the Confederation must collapse. But the Articles of Confederation provided no remedy, and it had been found that amendments to that instrument could not be obtained. It was necessary, therefore, to proceed in some extra-legal fashion. The Articles of Confederation specifically forbade treaties or alliances between the States unless approved by Congress. Yet Virginia and Maryland, in 1785, had come to a working agreement regarding the use of the Potomac River, which was the boundary line between them. Commissioners representing both parties had met at Alexandria and soon adjourned to Mount Vernon, where they not only reached an amicable settlement of the immediate questions before them but also discussed the larger subjects of duties and commercial matters in general. When the Maryland legislature came to act on the report, it proposed that Pennsylvania and Delaware should be invited to join with them in formulating a common commercial policy. Virginia then went one step farther and invited all the other States to send commissioners to a general trade convention and later announced Annapolis as the place of meeting and set the time for September, 1786. This action was unconstitutional and was so recognized, for James Madison notes that "from the Legislative Journals of Virginia it appears, that a vote to apply for a sanction of Congress was followed by a vote against a communication of the Compact to Congress," and he mentions other similar violations of the central authority. That this did not attract more attention was probably due to the public interest being absorbed just at that time by the paper money agitation. Then, too, the men concerned seem to have been willing to avoid publicity. Their purposes are well brought out in a letter of Monsieur Louis Otto, French Chargé d'Affaires, written on October 10, 1786, to the Comte de Vergennes, Minister for Foreign Affairs, though their motives may be somewhat misinterpreted. Although there are no nobles in America, there is a class of men denominated "gentlemen," who, by reason of their wealth, their talents, their education, their families, or the offices they hold, aspire to a preeminence which the people refuse to grant them; and, although many of these men have betrayed the interests of their order to gain popularity, there reigns among them a connection so much the more intimate as they almost all of them dread the efforts of the people to despoil them of their possessions, and, moreover, they are creditors, and therefore interested in strengthening the government, and watching over the execution of the laws. These men generally pay very heavy taxes, while the small proprietors escape the vigilance of the collectors. The majority of them being merchants, it is for their interest to establish the credit of the United States in Europe on a solid foundation by the exact payment of debts, and to grant to congress powers extensive enough to compel the people to contribute for this purpose. The attempt, my lord, has been vain, by pamphlets and other publications, to spread notions of justice and integrity, and to deprive the people of a freedom which they have so misused. By proposing a new organization of the federal government all minds would have been revolted; circumstances ruinous to the commerce of America have happily arisen to furnish the reformers with a pretext for introducing innovations. They represented to the people that the American name had become opprobrious among all the nations of Europe; that the flag of the United States was everywhere exposed to insults and annoyance; the husbandman, no longer able to export his produce freely, would soon be reduced to want; it was high time to retaliate, and to convince foreign powers that the United States would not with impunity suffer such a violation of the freedom of trade, but that strong measures could be taken only with the consent of the thirteen states, and that congress, not having the necessary powers, it was essential to form a general assembly instructed to present to congress the plan for its adoption, and to point out the means of carrying it into execution. The people, generally discontented with the obstacles in the way of commerce, and scarcely suspecting the secret motives of their opponents, ardently embraced this measure, and appointed commissioners, who were to assemble at Annapolis in the beginning of September. The authors of this proposition had no hope, nor even desire, to see the success of this assembly of commissioners, which was only intended to prepare a question much more important than that of commerce. The measures were so well taken that at the end of September no more than five states were represented at Annapolis, and the commissioners from the northern states tarried several days at New York in order to retard their arrival. The states which assembled, after having waited nearly three weeks, separated under the pretext that they were not in sufficient numbers to enter on business, and, to justify this dissolution, they addressed to the different legislatures and to congress a report, the translation of which I have the honor to enclose to you. ¹ ¹ Quoted by Bancroft, History of the Formation of the Constitution, vol. ii, Appendix, pp. 399-400. Among these "men denominated 'gentlemen'" to whom the French Chargé d'Affaires alludes, was James Madison of Virginia. He was one of the younger men, unfitted by temperament and physique to be a soldier, who yet had found his opportunity in the Revolution. Graduating in 1771 from Princeton, where tradition tells of the part he took in patriotic demonstrations on the campus--characteristic of students then as now--he had thrown himself heart and soul into the American cause. He was a member of the convention to frame the first State Constitution for Virginia in 1776, and from that time on, because of his ability, he was an important figure in the political history of his State and of his country. He was largely responsible for bringing about the conference between Virginia and Maryland and for the subsequent steps resulting in the trade convention at Annapolis. And yet Madison seldom took a conspicuous part, preferring to remain in the background and to allow others to appear as the leaders. When the Annapolis Convention assembled, for example, he suffered Alexander Hamilton of New York to play the leading rôle. Hamilton was then approaching thirty years of age and was one of the ablest men in the United States. Though his best work was done in later years, when he proved himself to be perhaps the most brilliant of American statesmen, with an extraordinary genius for administrative organization, the part that he took in the affairs of this period was important. He was small and slight in person but with an expressive face, fair complexion, and cheeks of "almost feminine rosiness." The usual aspect of his countenance was thoughtful and even severe, but in conversation his face lighted up with a remarkably attractive smile. He carried himself erectly and with dignity, so that in spite of his small figure, when he entered a room "it was apparent, from the respectful attention of the company, that he was a distinguished person." A contemporary, speaking of the opposite and almost irreconcilable traits of Hamilton's character, pronounced a bust of him as giving a complete exposition of his character: "Draw a handkerchief around the mouth of the bust, and the remnant of the countenance represents fortitude and intrepidity such as we have often seen in the plates of Roman heroes. Veil in the same manner the face and leave the mouth and chin only discernible, and all this fortitude melts and vanishes into almost feminine softness." Hamilton was a leading spirit in the Annapolis Trade Convention and wrote the report that it adopted. Whether or not there is any truth in the assertion of the French chargé that Hamilton and others thought it advisable to disguise their purposes, there is no doubt that the Annapolis Convention was an all-important step in the progress of reform, and its recommendation was the direct occasion of the calling of the great convention that framed the Constitution of the United States. The recommendation of the Annapolis delegates was in the form of a report to the legislatures of their respective States, in which they referred to the defects in the Federal Government and called for "a convention of deputies from the different states for the special purpose of entering into this investigation and digesting a Plan for supplying such defects." Philadelphia was suggested as the place of meeting, and the time was fixed for the second Monday in May of the next year. Several of the States acted promptly upon this recommendation and in February, 1787, Congress adopted a resolution accepting the proposal and calling the convention "for the sole and express purpose of revising the Articles of Confederation and reporting ... such alterations ... as shall ... render the Federal Constitution adequate to the exigencies of Government and the preservation of the Union." Before the time fixed for the meeting of the Philadelphia Convention, or shortly after that date, all the States had appointed deputies with the exception of New Hampshire and Rhode Island. New Hampshire was favorably disposed toward the meeting but, owing to local conditions, failed to act before the Convention was well under way. Delegates, however, arrived in time to share in some of the most important proceedings. Rhode Island alone refused to take part, although a letter signed by some of the prominent men was sent to the Convention pledging their support. CHAPTER VI THE FEDERAL CONVENTION The body of delegates which met in Philadelphia in 1787 was the most important convention that ever sat in the United States. The Confederation was a failure, and if the new nation was to be justified in the eyes of the world, it must show itself capable of effective union. The members of the Convention realized the significance of the task before them, which was, as Madison said, "now to decide forever the fate of Republican government." Gouverneur Morris, with unwonted seriousness, declared: "The whole human race will be affected by the proceedings of this Convention." James Wilson spoke with equal gravity: "After the lapse of six thousand years since the creation of the world America now presents the first instance of a people assembled to weigh deliberately and calmly and to decide leisurely and peaceably upon the form of government by which they will bind themselves and their posterity." Not all the men to whom this undertaking was entrusted, and who were taking themselves and their work so seriously, could pretend to social distinction, but practically all belonged to the upper ruling class. At the Indian Queen, a tavern on Fourth Street between Market and Chestnut, some of the delegates had a hall in which they lived by themselves. The meetings of the Convention were held in an upper room of the State House. The sessions were secret; sentries were placed at the door to keep away all intruders; and the pavement of the street in front of the building was covered with loose earth so that the noises of passing traffic should not disturb this august assembly. It is not surprising that a tradition grew up about the Federal Convention which hedged it round with a sort of awe and reverence. Even Thomas Jefferson referred to it as "an assembly of demigods." If we can get away from the glamour which has been spread over the work of the Fathers of the Constitution and understand that they were human beings, even as we are, and influenced by the same motives as other men, it may be possible to obtain a more faithful impression of what actually took place. Since representation in the Convention was to be by States, just as it had been in the Continental Congress, the presence of delegations from a majority of the States was necessary for organization. It is a commentary upon the times, upon the difficulties of travel, and upon the leisurely habits of the people, that the meeting which had been called for the 14th of May could not begin its work for over ten days. The 25th of May was stormy, and only twenty-nine delegates were on hand when the Convention organized. The slender attendance can only partially be attributed to the weather, for in the following three months and a half of the Convention, at which fifty-five members were present at one time or another, the average attendance was only slightly larger than that of the first day. In such a small body personality counted for much, in ways that the historian can only surmise. Many compromises of conflicting interests were reached by informal discussion outside of the formal sessions. In these small gatherings individual character was often as decisive as weighty argument. George Washington was unanimously chosen as the presiding officer of the Convention. He sat on a raised platform; in a large, carved, high-backed chair, from which his commanding figure and dignified bearing exerted a potent influence on the assembly, an influence enhanced by the formal courtesy and stately intercourse of the times. Washington was the great man of his day and the members not only respected and admired him; some of them were actually afraid of him. When he rose to his feet he was almost the Commander-in-Chief again. There is evidence to show that his support or disapproval was at times a decisive factor in the deliberations of the Convention. Virginia, which had taken a conspicuous part in the calling of the Convention, was looked to for leadership in the work that was to be done. James Madison, next to Washington the most important member of the Virginia delegation, was the very opposite of Washington in many respects--small and slight in stature, inconspicuous in dress as in figure, modest and retiring, but with a quick, active mind and wide knowledge obtained both from experience in public affairs and from extensive reading. Washington was the man of action; Madison, the scholar in politics. Madison was the younger by nearly twenty years, but Washington admired him greatly and gave him the support of his influence--a matter of no little consequence, for Madison was the leading expert worker of the Convention in the business of framing the Constitution. Governor Edmund Randolph, with his tall figure, handsome face, and dignified manner, made an excellent impression in the position accorded to him of nominal leader of the Virginia delegation. Among others from the same State who should be noticed were the famous lawyers, George Wythe and George Mason. Among the deputies from Pennsylvania the foremost was James Wilson, the "Caledonian," who probably stood next in importance in the convention to Madison and Washington. He had come to America as a young man just when the troubles with England were beginning and by sheer ability had attained a position of prominence. Several times a member of Congress, a signer of the Declaration of Independence, he was now regarded as one of the ablest lawyers in the United States. A more brilliant member of the Pennsylvania delegation, and one of the most brilliant of the Convention, was Gouverneur Morris, who shone by his cleverness and quick wit as well as by his wonderful command of language. But Morris was admired more than he was trusted; and, while he supported the efforts for a strong government, his support was not always as great a help as might have been expected. A crippled arm and a wooden leg might detract from his personal appearance, but they could not subdue his spirit and audacity. ¹ ¹ There is a story which illustrates admirably the audacity of Morris and the austere dignity of Washington. The story runs that Morris and several members of the Cabinet were spending an evening at the President's house in Philadelphia, where they were discussing the absorbing question of the hour, whatever it may have been. "The President," Morris is said to have related on the following day, "was standing with his arms behind him--his usual position--his back to the fire. I started up and spoke, stamping, as I walked up and down, with my wooden leg; and, as I was certain I had the best of the argument, as I finished I stalked up to the President, slapped him on the back, and said. 'Ain't I right, General?' The President did not speak, but the majesty of the American people was before me. Oh, his look! How I wished the floor would open and I could descend to the cellar! You know me," continued Mr. Morris, "and you know my eye would never quail before any other mortal."--W. T. Read, Life and Correspondence of George Read (1870) p. 441. There were other prominent members of the Pennsylvania delegation, but none of them took an important part in the Convention, not even the aged Benjamin Franklin, President of the State. At the age of eighty-one his powers were failing, and he was so feeble that his colleague Wilson read his speeches for him. His opinions were respected, but they do not seem to have carried much weight. Other noteworthy members of the Convention, though hardly in the first class, were the handsome and charming Rufus King of Massachusetts, one of the coming men of the country, and Nathaniel Gorham of the same State, who was President of Congress--a man of good sense rather than of great ability, but one whose reputation was high and whose presence was a distinct asset to the Convention. Then, too, there were the delegates from South Carolina: John Rutledge, the orator, General Charles Cotesworth Pinckney of Revolutionary fame, and his cousin, Charles Pinckney. The last named took a conspicuous part in the proceedings in Philadelphia but, so far as the outcome was concerned, left his mark on the Constitution mainly in minor matters and details. The men who have been named were nearly all supporters of the plan for a centralized government. On the other side were William Paterson of New Jersey, who had been Attorney-General of his State for eleven years and who was respected for his knowledge and ability; John Dickinson of Delaware, the author of the Farmer's Letters and chairman of the committee of Congress that had framed the Articles of Confederation--able, scholarly, and sincere, but nervous, sensitive, and conscientious to the verge of timidity--whose refusal to sign the Declaration of Independence had cost him his popularity, though he was afterward returned to Congress and became president successively of Delaware and of Pennsylvania; Elbridge Gerry of Massachusetts, a successful merchant, prominent in politics, and greatly interested in questions of commerce and finance; and the Connecticut delegates, forming an unusual trio, Dr. William Samuel Johnson, Roger Sherman, and Oliver Ellsworth. These men were fearful of establishing too strong a government and were at one time or another to be found in opposition to Madison and his supporters. They were not mere obstructionists, however, and while not constructive in the same way that Madison and Wilson were, they must be given some credit for the form which the Constitution finally assumed. Their greatest service was in restraining the tendency of the majority to overrule the rights of States and in modifying the desires of individuals for a government that would have been too strong to work well in practice. Alexander Hamilton of New York, as one of the ablest members of the Convention, was expected to take an important part, but he was out of touch with the views of the majority. He was aristocratic rather than democratic and, however excellent his ideas may have been, they were too radical for his fellow delegates and found but little support. He threw his strength in favor of a strong government and was ready to aid the movement in whatever way he could. But within his own delegation he was outvoted by Robert Yates and John Lansing, and before the sessions were half over he was deprived of a vote by the withdrawal of his colleagues. Thereupon, finding himself of little service, he went to New York and returned to Philadelphia only once or twice for a few days at a time, and finally to sign the completed document. Luther Martin of Maryland was an able lawyer and the Attorney-General of his State; but he was supposed to be allied with undesirable interests, and it was said that he had been sent to the Convention for the purpose of opposing a strong government. He proved to be a tiresome speaker and his prosiness, when added to the suspicion attaching to his motives, cost him much of the influence which he might otherwise have had. All in all, the delegates to the Federal Convention were a remarkable body of men. Most of them had played important parts in the drama of the Revolution; three-fourths of them had served in Congress, and practically all were persons of note in their respective States and had held important public positions. They may not have been the "assembly of demigods" which Jefferson called them, for another contemporary insisted "that twenty assemblies of equal number might be collected equally respectable both in point of ability, integrity, and patriotism." Perhaps it would be safer to regard the Convention as a fairly representative body, which was of a somewhat higher order than would be gathered together today, because the social conditions of those days tended to bring forward men of a better class, and because the seriousness of the crisis had called out leaders of the highest type. Two or three days were consumed in organizing the Convention--electing officers, considering the delegates' credentials, and adopting rules of procedure; and when these necessary preliminaries had been accomplished the main business was opened with the presentation by the Virginia delegation of a series of resolutions providing for radical changes in the machinery of the Confederation. The principal features were the organization of a legislature of two houses proportional to population and with increased powers, the establishment of a separate executive, and the creation of an independent judiciary. This was in reality providing for a new government and was probably quite beyond the ideas of most of the members of the Convention, who had come there under instructions and with the expectation of revising the Articles of Confederation. But after the Virginia Plan had been the subject of discussion for two weeks so that the members had become a little more accustomed to its proposals, and after minor modifications had been made in the wording of the resolutions, the Convention was won over to its support. To check this drift toward radical change the opposition headed by New Jersey and Connecticut presented the so-called New Jersey Plan, which was in sharp contrast to the Virginia Resolutions, for it contemplated only a revision of the Articles of Confederation, but after a relatively short discussion, the Virginia Plan was adopted by a vote of seven States against four, with one State divided. The dividing line between the two parties or groups in the Convention had quickly manifested itself. It proved to be the same line that had divided the Congress of the Confederation, the cleavage between the large States and the small States. The large States were in favor of representation in both houses of the legislature according to population, while the small States were opposed to any change which would deprive them of their equal vote in Congress, and though outvoted, they were not ready to yield. The Virginia Plan, and subsequently the New Jersey Plan, had first been considered in committee of the whole, and the question of "proportional representation," as it was then called, would accordingly come up again in formal session. Several weeks had been occupied by the proceedings, so that it was now near the end of June, and in general the discussions had been conducted with remarkably good temper. But it was evidently the calm before the storm. And the issue was finally joined when the question of representation in the two houses again came before the Convention. The majority of the States on the 29th of June once more voted in favor of proportional representation in the lower house. But on the question of the upper house, owing to a peculiar combination of circumstances--the absence of one delegate and another's change of vote causing the position of their respective States to be reversed or nullified--the vote on the 2d of July resulted in a tie. This brought the proceedings of the Convention to a standstill. A committee of one member from each State was appointed to consider the question, and, "that time might be given to the Committee, and to such as chose to attend to the celebration on the anniversary of Independence, the Convention adjourned" over the Fourth. The committee was chosen by ballot, and its composition was a clear indication that the small-State men had won their fight, and that a compromise would be effected. It was during the debate upon this subject, when feeling was running high and when at times it seemed as if the Convention in default of any satisfactory solution would permanently adjourn, that Franklin proposed that "prayers imploring the assistance of Heaven ... be held in this Assembly every morning." Tradition relates that Hamilton opposed the motion. The members were evidently afraid of the impression which would be created outside, if it were suspected that there were dissensions in the Convention, and the motion was not put to a vote. How far physical conditions may influence men in adopting any particular course of action it is impossible to say. But just when the discussion in the Convention reached a critical stage, just when the compromise presented by the committee was ready for adoption or rejection, the weather turned from unpleasantly hot to being comfortably cool. And, after some little time spent in the consideration of details, on the 16th of July, the great compromise of the Constitution was adopted. There was no other that compared with it in importance. Its most significant features were that in the upper house each State should have an equal vote and that in the lower house representation should be apportioned on the basis of population, while direct taxation should follow the same proportion. The further proviso that money bills should originate in the lower house and should not be amended in the upper house was regarded by some delegates as of considerable importance, though others did not think so, and eventually the restriction upon amendment by the upper house was dropped. There has long been a prevailing belief that an essential feature of the great compromise was the counting of only three-fifths of the slaves in enumerating the population. This impression is quite erroneous. It was one of the details of the compromise, but it had been a feature of the revenue amendment of 1783, and it was generally accepted as a happy solution of the difficulty that slaves possessed the attributes both of persons and of property. It had been included both in the amended Virginia Plan and in the New Jersey Plan; and when it was embodied in the compromise it was described as "the ratio recommended by Congress in their resolutions of April 18, 1783." A few months later, in explaining the matter to the Massachusetts convention, Rufus King said that, "This rule ... was adopted because it was the language of all America." In reality the three-fifths rule was a mere incident in that part of the great compromise which declared that "representation should be proportioned according to direct taxation." As a further indication of the attitude of the Convention upon this point, an amendment to have the blacks counted equally with the whites was voted down by eight States against two. With the adoption of the great compromise a marked difference was noticeable in the attitude of the delegates. Those from the large States were deeply disappointed at the result and they asked for an adjournment to give them time to consider what they should do. The next morning, before the Convention met, they held a meeting to determine upon their course of action. They were apparently afraid of taking the responsibility for breaking up the Convention, so they finally decided to let the proceedings go on and to see what might be the ultimate outcome. Rumors of these dissensions had reached the ears of the public, and it may have been to quiet any misgivings that the following inspired item appeared in several local papers: "So great is the unanimity, we hear, that prevails in the Convention, upon all great federal subjects, that it has been proposed to call the room in which they assemble Unanimity Hall." On the other hand the effect of this great compromise upon the delegates from the small States was distinctly favorable. Having obtained equal representation in one branch of the legislature, they now proceeded with much greater willingness to consider the strengthening of the central government. Many details were yet to be arranged, and sharp differences of opinion existed in connection with the executive as well as with the judiciary. But these difficulties were slight in comparison with those which they had already surmounted in the matter of representation. By the end of July the fifteen resolutions of the original Virginia Plan had been increased to twenty-three, with many enlargements and amendments, and the Convention had gone as far as it could effectively in determining the general principles upon which the government should be formed. There were too many members to work efficiently when it came to the actual framing of a constitution with all the inevitable details that were necessary in setting up a machinery of government. Accordingly this task was turned over to a committee of five members who had already given evidence of their ability in this direction. Rutledge was made the chairman, and the others were Randolph, Gorham, Ellsworth, and Wilson. To give them time to perfect their work, on the 26th of July the Convention adjourned for ten days. CHAPTER VII FINISHING THE WORK Rutledge and his associates on the committee of detail accomplished so much in such a short time that it seems as if they must have worked day and night. Their efforts marked a distinct stage in the development of the Constitution. The committee left no records, but some of the members retained among their private papers drafts of the different stages of the report they were framing, and we are therefore able to surmise the way in which the committee proceeded. Of course the members were bound by the resolutions which had been adopted by the Convention and they held themselves closely to the general principles that had been laid down. But in the elaboration of details they seem to have begun with the Articles of Confederation and to have used all of that document that was consistent with the new plan of government. Then they made use of the New Jersey Plan, which had been put forward by the smaller States, and of a third plan which had been presented by Charles Pinckney; for the rest they drew largely upon the State Constitutions. By a combination of these different sources the committee prepared a document bearing a close resemblance to the present Constitution, although subjects were in a different order and in somewhat different proportions, which, at the end of ten days, by working on Sunday, they were able to present to the Convention. This draft of a constitution was printed on seven folio pages with wide margins for notes and emendations. The Convention resumed its sessions on Monday, the 6th of August, and for five weeks the report of the committee of detail was the subject of discussion. For five hours each day, and sometimes for six hours, the delegates kept persistently at their task. It was midsummer, and we read in the diary of one of the members that in all that period only five days were "cool." Item by item, line by line, the printed draft of the Constitution was considered. It is not possible, nor is it necessary, to follow that work minutely; much of it was purely formal, and yet any one who has had experience with committee reports knows how much importance attaches to matters of phrasing. Just as the Virginia Plan was made more acceptable to the majority by changes in wording that seem to us insignificant, so modifications in phrasing slowly won support for the draft of the Constitution. The adoption of the great compromise, as we have seen, changed the whole spirit of the Convention. There was now an expectation on the part of the members that something definite was going to be accomplished, and all were concerned in making the result as good and as acceptable as possible. In other words, the spirit of compromise pervaded every action, and it is essential to remember this in considering what was accomplished. One of the greatest weaknesses of the Confederation was the inefficiency of Congress. More than four pages, or three-fifths of the whole printed draft, were devoted to Congress and its powers. It is more significant, however, that in the new Constitution the legislative powers of the Confederation were transferred bodily to the Congress of the United States, and that the powers added were few in number, although of course of the first importance. The Virginia Plan declared that, in addition to the powers under the Confederation, Congress should have the right "to legislate in all cases to which the separate States are incompetent." This statement was elaborated in the printed draft which granted specific powers of taxation, of regulating commerce, of establishing a uniform rule of naturalization, and at the end of the enumeration of powers two clauses were added giving to Congress authority: To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions; And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers. On the other hand, it was necessary to place some limitations upon the power of Congress. A general restriction was laid by giving to the executive a right of veto, which might be overruled, however, by a two-thirds vote of both houses. Following British tradition--yielding as it were to an inherited fear--these delegates in America were led to place the first restraint upon the exercise of congressional authority in connection with treason. The legislature of the United States was given the power to declare the punishment of treason; but treason itself was defined in the Constitution, and it was further asserted that a person could be convicted of treason only on the testimony of two witnesses, and that attainder of treason should not "work corruption of blood nor forfeiture except during the life of the person attainted." Arising more nearly out of their own experience was the prohibition of export taxes, of capitation taxes, and of the granting of titles of nobility. While the committee of detail was preparing its report, the Southern members of that committee had succeeded in getting a provision inserted that navigation acts could be passed only by a two-thirds vote of both houses of the legislature. New England and the Middle States were strongly in favor of navigation acts for, if they could require all American products to be carried in American-built and American-owned vessels, they would give a great stimulus to the ship-building and commerce of the United States. They therefore wished to give Congress power in this matter on exactly the same terms that other powers were granted. The South, however, was opposed to this policy, for it wanted to encourage the cheapest method of shipping its raw materials. The South also wanted a larger number of slaves to meet its labor demands. To this need New England was not favorably disposed. To reconcile the conflicting interests of the two sections a compromise was finally reached. The requirement of a two-thirds vote of both houses for the passing of navigation acts which the Southern members had obtained was abandoned, and on the other hand it was determined that Congress should not be allowed to interfere with the importation of slaves for twenty years. This, again, was one of the important and conspicuous compromises of the Constitution. It is liable, however, to be misunderstood, for one should not read into the sentiment of the members of the Convention any of the later strong prejudice against slavery. There were some who objected on moral grounds to the recognition of slavery in the Constitution, and that word was carefully avoided by referring to "such Persons as any States now existing shall think proper to admit." And there were some who were especially opposed to the encouragement of that institution by permitting the slave trade, but the majority of the delegates regarded slavery as an accepted institution, as a part of the established order, and public sentiment on the slave trade was not much more emphatic and positive than it is now on cruelty to animals. As Ellsworth said, "The morality or wisdom of slavery are considerations belonging to the States themselves," and the compromise was nothing more or less than a bargain between the sections. The fundamental weakness of the Confederation was the inability of the Government to enforce its decrees, and in spite of the increased powers of Congress, even including the use of the militia "to execute the laws of the Union," it was not felt that this defect had been entirely remedied. Experience under the Confederation had taught men that something more was necessary in the direction of restricting the States in matters which might interfere with the working of the central Government. As in the case of the powers of Congress, the Articles of Confederation were again resorted to and the restrictions which had been placed upon the States in that document were now embodied in the Constitution with modifications and additions. But the final touch was given in connection with the judiciary. There was little in the printed draft and there is comparatively little in the Constitution on the subject of the judiciary. A Federal Supreme Court was provided for, and Congress was permitted, but not required, to establish inferior courts; while the jurisdiction of these tribunals was determined upon the general principles that it should extend to cases arising under the Constitution and laws of the United States, to treaties and cases in which foreigners and foreign countries were involved, and to controversies between States and citizens of different States. Nowhere in the document itself is there any word as to that great power which has been exercised by the Federal courts of declaring null and void laws or parts of laws that are regarded as in contravention to the Constitution. There is little doubt that the more important men in the Convention, such as Wilson, Madison, Gouverneur Morris, King, Gerry, Mason, and Luther Martin, believed that the judiciary would exercise this power, even though it should not be specifically granted. The nearest approach to a declaration of this power is to be found in a paragraph that was inserted toward the end of the Constitution. Oddly enough, this was a modification of a clause introduced by Luther Martin with quite another intent. As adopted it reads: "That this Constitution and the Laws of the United States ... and all Treaties ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." This paragraph may well be regarded as the keystone of the constitutional arch of national power. Its significance lies in the fact that the Constitution is regarded not as a treaty nor as an agreement between States, but as a law; and while its enforcement is backed by armed power, it is a law enforceable in the courts. One whole division of the Constitution has been as yet barely referred to, and it not only presented one of the most perplexing problems which the Convention faced but one of the last to be settled--that providing for an executive. There was a general agreement in the Convention that there should be a separate executive. The opinion also developed quite early that a single executive was better than a plural body, but that was as far as the members could go with any degree of unanimity. At the outset they seemed to have thought that the executive would be dependent upon the legislature, appointed by that body, and therefore more or less subject to its control. But in the course of the proceedings the tendency was to grant greater and greater powers to the executive; in other words, he was becoming a figure of importance. No such office as that of President of the United States was then in existence. It was a new position which they were creating. We have become so accustomed to it that it is difficult for us to hark back to the time when there was no such officer and to realize the difficulties and the fears of the men who were responsible for creating that office. The presidency was obviously modeled after the governorship of the individual States, and yet the incumbent was to be at the head of the Thirteen States. Rufus King is frequently quoted to the effect that the men of that time had been accustomed to considering themselves subjects of the British king. Even at the time of the Convention there is good evidence to show that some of the members were still agitating the desirability of establishing a monarchy in the United States. It was a common rumor that a son of George III was to be invited to come over, and there is reason to believe that only a few months before the Convention met Prince Henry of Prussia was approached by prominent people in this country to see if he could be induced to accept the headship of the States, that is, to become the king of the United States. The members of the Convention evidently thought that they were establishing something like a monarchy. As Randolph said, the people would see "the form at least of a little monarch," and they did not want him to have despotic powers. When the sessions were over, a lady asked Franklin: "Well, Doctor, what have we got, a republic or a monarchy?" "A republic," replied the doctor, "if you can keep it." The increase of powers accruing to the executive office necessitated placing a corresponding check upon the exercise of those powers. The obvious method was to render the executive subject to impeachment, and it was also readily agreed that his veto might be overruled by a two-thirds vote of Congress; but some further safeguards were necessary, and the whole question accordingly turned upon the method of his election and the length of his term. In the course of the proceedings of the Convention, at several different times, the members voted in favor of an appointment by the national legislature, but they also voted against it. Once they voted for a system of electors chosen by the State legislatures and twice they voted against such a system. Three times they voted to reconsider the whole question. It is no wonder that Gerry should say: "We seem to be entirely at a loss." So it came to the end of August, with most of the other matters disposed of and with the patience of the delegates worn out by the long strain of four weeks' close application. During the discussions it had become apparent to every one that an election of the President by the people would give a decided advantage to the large States, so that again there was arising the divergence between the large and small States. In order to hasten matters to a conclusion, this and all other vexing details upon which the Convention could not agree were turned over to a committee made up of a member from each State. It was this committee which pointed the way to a compromise by which the choice of the executive was to be entrusted to electors chosen in each State as its legislature might direct. The electors were to be equal in number to the State's representation in Congress, including both senators and representatives, and in each State they were to meet and to vote for two persons, one of whom should not be an inhabitant of that State. The votes were to be listed and sent to Congress, and the person who had received the greatest number of votes was to be President, provided such a number was a majority of all the electors. In case of a tie the Senate was to choose between the candidates and, if no one had a majority, the Senate was to elect "from the five highest on the list." This method of voting would have given the large States a decided advantage, of course, in that they would appoint the greater number of electors, but it was not believed that this system would ordinarily result in a majority of votes being cast for one man. Apparently no one anticipated the formation of political parties which would concentrate the votes upon one or another candidate. It was rather expected that in the great majority of cases--"nineteen times in twenty," one of the delegates said--there would be several candidates and that the selection from those candidates would fall to the Senate, in which all the States were equally represented and the small States were in the majority. But since the Senate shared so many powers with the executive, it seemed better to transfer the right of "eventual election" to the House of Representatives, where each State was still to have but one vote. Had this scheme worked as the designers expected, the interests of large States and small States would have been reconciled, since in effect the large States would name the candidates and, "nineteen times in twenty," the small States would choose from among them. Apparently the question of a third term was never considered by the delegates in the Convention. The chief problem before them was the method of election. If the President was to be chosen by the legislature, he should not be eligible to reëlection. On the other hand, if there was to be some form of popular election, an opportunity for reëlection was thought to be a desirable incentive to good behavior. Six or seven years was taken as an acceptable length for a single term and four years a convenient tenure if reëlection was permitted. It was upon these considerations that the term of four years was eventually agreed upon, with no restriction placed upon reëlection. When it was believed that a satisfactory method of choosing the President had been discovered--and it is interesting to notice the members of the Convention later congratulated themselves that at least this feature of their government was above criticism--it was decided to give still further powers to the President, such as the making of treaties and the appointing of ambassadors and judges, although the advice and consent of the Senate was required, and in the case of treaties two-thirds of the members present must consent. The presidency was frankly an experiment, the success of which would depend largely upon the first election; yet no one seems to have been anxious about the first choice of chief magistrate, and the reason is not far to seek. From the moment the members agreed that there should be a single executive they also agreed upon the man for the position. Just as Washington had been chosen unanimously to preside over the Convention, so it was generally accepted that he would be the first head of the new state. Such at least was the trend of conversation and even of debate on the floor of the Convention. It indicates something of the conception of the office prevailing at the time that Washington, when he became President, is said to have preferred the title, "His High Mightiness, the President of the United States and Protector of their Liberties." The members of the Convention were plainly growing tired and there are evidences of haste in the work of the last few days. There was a tendency to ride rough-shod over those whose temperaments forced them to demand modifications in petty matters. This precipitancy gave rise to considerable dissatisfaction and led several delegates to declare that they would not sign the completed document. But on the whole the sentiment of the Convention was overwhelmingly favorable. Accordingly on Saturday, the 8th of September, a new committee was appointed, to consist of five members, whose duty it was "to revise the stile of and arrange the articles which had been agreed to by the House." The committee was chosen by ballot and was made up exclusively of friends of the new Constitution: Doctor Johnson of Connecticut, Alexander Hamilton, who had returned to Philadelphia to help in finishing the work, Gouverneur Morris, James Madison, and Rufus King. On Wednesday the twelfth, the Committee made its report, the greatest credit for which is probably to be given to Morris, whose powers of expression were so greatly admired. Another day was spent in waiting for the report to be printed. But on Thursday this was ready, and three days were devoted to going over carefully each article and section and giving the finishing touches. By Saturday the work of the Convention was brought to a close, and the Constitution was then ordered to be engrossed. On Monday, the 17th of September, the Convention met for the last time. A few of those present being unwilling to sign, Gouverneur Morris again cleverly devised a form which would make the action appear to be unanimous: "Done in Convention by the unanimous consent of the states present ... in witness whereof we have hereunto subscribed our names." Thirty-nine delegates, representing twelve States, then signed the Constitution. When Charles Biddle of Philadelphia, who was acquainted with most of the members of the Convention, wrote his Autobiography, which was published in 1802, he declared that for his part he considered the government established by the Constitution to be "the best in the world, and as perfect as any human form of government can be." But he prefaced that declaration with a statement that some of the best informed members of the Federal Convention had told him "they did not believe a single member was perfectly satisfied with the Constitution, but they believed it was the best they could ever agree upon, and that it was infinitely better to have such a one than break up without fixing on some form of government, which I believe at one time it was expected they would have done." One of the outstanding characteristics of the members of the Federal Convention was their practical sagacity. They had a very definite object before them. No matter how much the members might talk about democracy in theory or about ancient confederacies, when it came to action they did not go outside of their own experience. The Constitution was devised to correct well-known defects and it contained few provisions which had not been tested by practical political experience. Before the Convention met, some of the leading men in the country had prepared lists of the defects which existed in the Articles of Confederation, and in the Constitution practically every one of these defects was corrected and by means which had already been tested in the States and under the Articles of Confederation. CHAPTER VIII THE UNION ESTABLISHED The course of English history shows that Anglo-Saxon tradition is strongly in favor of observing precedents and of trying to maintain at least the form of law, even in revolutions. When the English people found it impossible to bear with James II and made it so uncomfortable for him that he fled the country, they shifted the responsibility from their own shoulders by charging him with "breaking the original Contract between King and People." When the Thirteen Colonies had reached the point where they felt that they must separate from England, their spokesman, Thomas Jefferson, found the necessary justification in the fundamental compact of the first settlers "in the wilds of America" where "the emigrants thought proper to adopt that system of laws under which they had hitherto lived in the mother country"; and in the Declaration of Independence he charged the King of Great Britain with "repeated injuries and usurpations all having in direct object the establishment of an absolute Tyranny over these States." And so it was with the change to the new form of government in the United States, which was accomplished only by disregarding the forms prescribed in the Articles of Confederation and has been called, therefore, "the Revolution of 1789." From the outset the new constitution was placed under the sanction of the old. The movement began with an attempt, outwardly at least, to revise the Articles of Confederation and in that form was authorized by Congress. The first breach with the past was made when the proposal in the Virginia Resolutions was accepted that amendments made by the Convention in the Articles of Confederation should be submitted to assemblies chosen by the people instead of to the legislatures of the separate States. This was the more readily accepted because it was believed that ratification by the legislatures would result in the formation of a treaty rather than in a working instrument of government. The next step was to prevent the work of the Convention from meeting the fate of all previous amendments to the Articles of Confederation, which had required the consent of every State in the Union. At the time the committee of detail made its report, the Convention was ready to agree that the consent of all the States was not necessary, and it eventually decided that, when ratified by the conventions of nine States, the Constitution should go into effect between the States so ratifying. It was not within the province of the Convention to determine what the course of procedure should be in the individual States; so it simply transmitted the Constitution to Congress and in an accompanying document, which significantly omitted any request for the approval of Congress, strongly expressed the opinion that the Constitution should "be submitted to a convention of delegates chosen in each state by the people thereof." This was nothing less than indirect ratification by the people; and, since it was impossible to foretell in advance which of the States would or would not ratify, the original draft of "We, the People of the States of New Hampshire, Massachusetts, Rhode Island, ..." was changed to the phrase "We, the People of the United States." No man of that day could imagine how significant this change would appear in the light of later history. Congress did not receive the new Constitution enthusiastically, yet after a few days' discussion it unanimously voted, eleven States being present, that the recommendations of the Convention should be followed, and accordingly sent the document to the States, but without a word of approval or disapproval. On the whole the document was well received, especially as it was favored by the upper class, who had the ability and the opportunity for expression and were in a position to make themselves heard. For a time it looked as if the Constitution would be readily adopted. The contest over the Constitution in the States is usually taken as marking the beginning of the two great national political parties in the United States. This was, indeed, in a way the first great national question that could cause such a division. There had been, to be sure, Whigs and Tories in America, reproducing British parties, but when the trouble with the mother country began, the successive congresses of delegates were recognized and attended only by the so-called American Whigs, and after the Declaration of Independence the name of Tory became a reproach, so that with the end of the war the Tory party disappeared. After the Revolution there were local parties in the various States, divided on one and another question, such as that of hard and soft money, and these issues had coincided in different States; but they were in no sense national parties with organizations, platforms, and leaders; they were purely local, and the followers of one or the other would have denied that they were anything else than Whigs. But a new issue was now raised. The Whig party split in two, new leaders appeared, and the elements gathered in two main divisions--the Federalists advocating, and the Anti-Federalists opposing, the adoption of the new Constitution. There were differences of opinion over all the questions which had led to the calling of the Federal Convention and the framing of the Constitution and so there was inevitably a division upon the result of the Convention's work. There were those who wanted national authority for the suppression of disorder and of what threatened to be anarchy throughout the Union; and on the other hand there were those who opposed a strongly organized government through fear of its destroying liberty. Especially debtors and creditors took opposite sides, and most of the people in the United States could have been brought under one or the other category. The former favored a system of government and legislation which would tend to relieve or postpone the payment of debts; and, as that relief would come more readily from the State Governments, they were naturally the friends of State rights and State authority and were opposed to any enlargement of the powers of the Federal Government. On the other hand, were those who felt the necessity of preserving inviolate every private and public obligation and who saw that the separate power of the States could not accomplish what was necessary to sustain both public and private credit; they were disposed to use the resources of the Union and accordingly to favor the strengthening of the national government. In nearly every State there was a struggle between these classes. In Philadelphia and the neighborhood there was great enthusiasm for the new Constitution. Almost simultaneously with the action by Congress, and before notification of it had been received, a motion was introduced in the Pennsylvania Assembly to call a ratifying convention. The Anti-Federalists were surprised by the suddenness of this proposal and to prevent action absented themselves from the session of the Assembly, leaving that body two short of the necessary quorum for the transaction of business. The excitement and indignation in the city were so great that early the next morning a crowd gathered, dragged two of the absentees from their lodgings to the State House, and held them firmly in their places until the roll was called and a quorum counted, when the House proceeded to order a State convention. As soon as the news of this vote got out, the city gave itself up to celebrating the event by the suspension of business, the ringing of church bells, and other demonstrations. The elections were hotly contested, but the Federalists were generally successful. The convention met towards the end of November and, after three weeks of futile discussion, mainly upon trivial matters and the meaning of words, ratified the Constitution on the 12th of December, by a vote of forty-six to twenty-three. Again the city of Philadelphia celebrated. Pennsylvania was the first State to call a convention, but its final action was anticipated by Delaware, where the State convention met and ratified the Constitution by unanimous vote on the 7th of December. The New Jersey convention spent only a week in discussion and then voted, also unanimously, for ratification on the 18th of December. The next State to ratify was Georgia, where the Constitution was approved without a dissenting vote on January 2, 1788. Connecticut followed immediately and, after a session of only five days, declared itself in favor of the Constitution, on the 9th of January, by a vote of over three to one. The results of the campaign for ratification thus far were most gratifying to the Federalists, but the issue was not decided. With the exception of Pennsylvania, the States which had acted were of lesser importance, and, until Massachusetts, New York, and Virginia should declare themselves, the outcome would be in doubt. The convention of Massachusetts met on the same day that the Connecticut convention adjourned. The sentiment of Boston, like that of Philadelphia, was strongly Federalist; but the outlying districts, and in particular the western part of the State, where Shays' Rebellion had broken out, were to be counted in the opposition. There were 355 delegates who took part in the Massachusetts convention, a larger number than was chosen in any of the other States, and the majority seemed to be opposed to ratification. The division was close, however, and it was believed that the attitude of two men would determine the result. One of these was Governor John Hancock, who was chosen chairman of the convention but who did not attend the sessions at the outset, as he was confined to his house by an attack of gout, which, it was maliciously said, would disappear as soon as it was known which way the majority of the convention would vote. The other was Samuel Adams, a genuine friend of liberty, who was opposed on principle to the general theory of the government set forth in the Constitution. "I stumble at the threshold," he wrote. "I meet with a national government, instead of a federal union of sovereign states." But, being a shrewd politician, Adams did not commit himself openly and, when the tradesmen of Boston declared themselves in favor of ratification, he was ready to yield his personal opinion. There were many delegates in the Massachusetts convention who felt that it was better to amend the document before them than to try another Federal Convention, when as good an instrument might not be devised. If this group were added to those who were ready to accept the Constitution as it stood, they would make a majority in favor of the new government. But the delay involved in amending was regarded as dangerous, and it was argued that, as the Constitution made ample provision for changes, it would be safer and wiser to rely upon that method. The question was one, therefore, of immediate or future amendment. Pressure was accordingly brought to bear upon Governor Hancock and intimations were made to him of future political preferment, until he was persuaded to propose immediate ratification of the Constitution, with an urgent recommendation of such amendments as would remove the objections of the Massachusetts people. When this proposal was approved by Adams, its success was assured, and a few days later, on the 6th of February, the convention voted 187 to 168 in favor of ratification. Nine amendments, largely in the nature of a bill of rights, were then demanded, and the Massachusetts representatives in Congress were enjoined "at all times, ... to exert all their influence, and use all reasonable and legal methods, To obtain a ratification of the said alterations and provisions." On the very day this action was taken, Jefferson wrote from Paris to Madison: "I wish with all my soul that the nine first conventions may accept the new Constitution, to secure to us the good it contains; but I equally wish that the four latest, whichever they may be, may refuse to accede to it till a declaration of rights be annexed." Boston proceeded to celebrate as Philadelphia, and Benjamin Lincoln wrote to Washington, on the 9th of February, enclosing an extract from the local paper describing the event: By the paper your Excellency will observe some account of the parade of the Eighth the printer had by no means time eno' to do justice to the subject. To give you some idea how far he has been deficient I will mention an observation I heard made by a Lady the last evening who saw the whole that the description in the paper would no more compare with the original than the light of the faintest star would with that of the Sun fortunately for us the whole ended without the least disorder and the town during the whole evening was, so far as I could observe perfectly quiet. ¹ He added another paragraph which he later struck out as being of little importance; but it throws an interesting sidelight upon the customs of the time. The Gentlemen provided at Faneul Hall some biscuit & cheese four qr Casks of wine three barrels & two hogs of punch the moment they found that the people had drank sufficiently means were taken to overset the two hogs punch this being done the company dispersed and the day ended most agreeably ² ¹ Documentary History, vol. iv, pp. 488-490. ² Ibid. Maryland came next. When the Federal Convention was breaking up, Luther Martin was speaking of the new system of government to his colleague, Daniel of St. Thomas Jenifer, and exclaimed: "I'll be hanged if ever the people of Maryland agree to it!" To which his colleague retorted: "I advise you to stay in Philadelphia, lest you should be hanged." And Jenifer proved to be right, for in Maryland the Federalists obtained control of the convention and, by a vote of 63 to 11, ratified the Constitution on the 26th of April. In South Carolina, which was the Southern State next in importance to Virginia, the compromise on the slave trade proved to be one of the deciding factors in determining public opinion. When the elections were held, they resulted in an overwhelming majority for the Federalists, so that after a session of less than two weeks the convention ratified the Constitution, on the 28th of May, by a vote of over two to one. The only apparent setback which the adoption of the Constitution had thus far received was in New Hampshire, where the convention met early in February and then adjourned until June to see what the other States might do. But this delay proved to be of no consequence for, when the time came for the second meeting of the New Hampshire delegates, eight States had already acted favorably and adoption was regarded as a certainty. This was sufficient to put a stop to any further waiting, and New Hampshire added its name to the list on the 21st of June; but the division of opinion was fairly well represented by the smallness of the majority, the vote standing 57 to 46. Nine States had now ratified the Constitution and it was to go into effect among them. But the support of Virginia and New York was of so much importance that their decisions were awaited with uneasiness. In Virginia, in spite of the support of such men as Washington and Madison, the sentiment for and against the Constitution was fairly evenly divided, and the opposition numbered in its ranks other names of almost equal influence, such as Patrick Henry and George Mason. Feeling ran high; the contest was a bitter one and, even after the elections had been held and the convention had opened, early in June, the decision was in doubt and remained in doubt until the very end. The situation was, in one respect at least, similar to that which had existed in Massachusetts, in that it was possible to get a substantial majority in favor of the Constitution provided certain amendments were made. The same arguments were used, strengthened on the one side by what other States had done, and on the other side by the plea that now was the time to hold out for amendments. The example of Massachusetts, however, seems to have been decisive, and on the 25th of June, four days later than New Hampshire, the Virginia convention voted to ratify, "under the conviction that whatsoever imperfections may exist in the Constitution ought rather to be examined in the mode prescribed therein, than to bring the Union into danger by delay, with a hope of obtaining amendments previous to the ratification." When the New York convention began its sessions on the 17th of June, it is said that more than two-thirds of the delegates were Anti-Federalist in sentiment. How a majority in favor of the Constitution was obtained has never been adequately explained, but it is certain that the main credit for the achievement belongs to Alexander Hamilton. He had early realized how greatly it would help the prospects of the Constitution if thinking people could be brought to an appreciation of the importance and value of the new form of government. In order to reach the intelligent public everywhere, but particularly in New York, he projected a series of essays which should be published in the newspapers, setting forth the aims and purposes of the Constitution. He secured the assistance of Madison and Jay, and before the end of October, 1787, published the first essay in The Independent Gazetteer. From that time on these papers continued to be printed over the signature of "Publius," sometimes as many as three or four in a week. There were eighty-five numbers altogether, which have ever since been known as The Federalist. Of these approximately fifty were the work of Hamilton, Madison wrote about thirty and Jay five. Although the essays were widely copied in other journals, and form for us the most important commentary on the Constitution, making what is regarded as one of America's greatest books, it is doubtful how much immediate influence they had. Certainly in the New York convention itself Hamilton's personal influence was a stronger force. His arguments were both eloquent and cogent, and met every objection; and his efforts to win over the opposition were unremitting. The news which came by express riders from New Hampshire and then from Virginia were also deciding factors, for New York could not afford to remain out of the new Union if it was to embrace States on either side. And yet the debate continued, as the opposition was putting forth every effort to make ratification conditional upon certain amendments being adopted. But Hamilton resolutely refused to make any concessions and at length was successful in persuading the New York convention, by a vote of 30 against 27, on the 26th of July, to follow the example of Massachusetts and Virginia and to ratify the Constitution with merely a recommendation of future amendments. The satisfaction of the country at the outcome of the long and momentous struggle over the adoption of the new government was unmistakable. Even before the action of New York had been taken, the Fourth of July was made the occasion for a great celebration throughout the United States, both as the anniversary of independence and as the consummation of the Union by the adoption of the Constitution. The general rejoicing was somewhat tempered, however, by the reluctance of North Carolina and Rhode Island to come under "the new roof." Had the convention which met on the 21st of July in North Carolina reached a vote, it would probably have defeated the Constitution, but it was doubtless restrained by the action of New York and adjourned without coming to a decision. A second convention was called in September, 1789, and in the meantime the new government had come into operation and was bringing pressure to bear upon the recalcitrant States which refused to abandon the old union for the new. One of the earliest acts passed by Congress was a revenue act, levying duties upon foreign goods imported, which were made specifically to apply to imports from Rhode Island and North Carolina. This was sufficient for North Carolina, and on November 21, 1789, the convention ratified the Constitution. But Rhode Island still held out. A convention of that State was finally called to meet in March, 1790, but accomplished nothing and avoided a decision by adjourning until May. The Federal Government then proceeded to threaten drastic measures by taking up a bill which authorized the President to suspend all commercial intercourse with Rhode Island and to demand of that State the payment of its share of the Federal debt. The bill passed the Senate but stopped there, for the State gave in and ratified the Constitution on the 29th of May. Two weeks later Ellsworth, who was now United States Senator from Connecticut, wrote that Rhode Island had been "brought into the Union, and by a pretty cold measure in Congress, which would have exposed me to some censure, had it not produced the effect which I expected it would and which in fact it has done. But 'all is well that ends well.' The Constitution is now adopted by all the States and I have much satisfaction, and perhaps some vanity, in seeing, at length, a great work finished, for which I have long labored incessantly." ¹ Perhaps the most striking feature of these conventions is the trivial character of the objections that were raised. Some of the arguments it is true, went to the very heart of the matter and considered the fundamental principles of government. It is possible to tolerate and even to sympathize with a man who declared: Among other deformities the Constitution has an awful squinting. It squints toward monarchy; ... your president may easily become a king.... If your American chief be a man of ambition and ability how easy it is for him to render himself absolute. We shall have a king. The army will salute him monarch. ² But it is hard to take seriously a delegate who asked permission "to make a short apostrophe to liberty," and then delivered himself of this bathos: O liberty!--thou greatest good--thou fairest property--with thee I wish to live--with thee I wish to die!--Pardon me if I drop a tear on the peril to which she is exposed; I cannot, sir, see this brightest of jewels tarnished! a jewel worth ten thousand worlds! and shall we part with it so soon? O no! ³ ¹, ² "Connecticut's Ratification of the Federal Constitution," by B. C. Steiner, in Proceedings of the American Antiquarian Society, April, 1915, pp. 88-89. ³ Elliot's Debates on the Federal Constitution, vol. iii, p. 144. There might be some reason in objecting to the excessive power vested in Congress; but what is one to think of the fear that imagined the greatest point of danger to lie in the ten miles square which later became the District of Columbia, because the Government might erect a fortified stronghold which would be invincible? Again, in the light of subsequent events it is laughable to find many protesting that, although each house was required to keep a journal of proceedings, it was only required "from time to time to publish the same, excepting such parts as may in their judgment require secrecy." All sorts of personal charges were made against those who were responsible for the framing of the Constitution. Hopkinson wrote to Jefferson in April, 1788: You will be surprised when I tell you that our public News Papers have announced General Washington to be a Fool influenced & lead by that Knave Dr. Franklin, who is a public Defaulter for Millions of Dollars, that Mr. Morris has defrauded the Public out of as many Millions as you please & that they are to cover their frauds by this new Government. ¹ ¹ Documentary History of the Constitution, vol. iv, p. 563. All things considered, it is difficult to avoid the conclusion that such critics and detractors were trying to find excuses for their opposition. The majorities in the various conventions can hardly be said really to represent the people of their States, for only a small percentage of the people had voted in electing them; they were representative rather of the propertied upper class. This circumstance has given rise to the charge that the Constitution was framed and adopted by men who were interested in the protection of property, in the maintenance of the value of government securities, and in the payment of debts which had been incurred by the individual States in the course of the Revolution. Property-holders were unquestionably assisted by the mere establishment of a strong government. The creditor class seemed to require some special provision and, when the powers of Congress were under consideration in the Federal Convention, several of the members argued strongly for a positive injunction on Congress to assume obligations of the States. The chief objection to this procedure seemed to be based upon the fear of benefiting speculators rather than the legitimate creditors, and the matter was finally compromised by providing that all debts should be "as valid against the United States under this Constitution as under the Confederation." The charge that the Constitution was framed and its adoption obtained by men of property and wealth is undoubtedly true, but it is a mistake to attribute unworthy motives to them. The upper classes in the United States were generally people of wealth and so would be the natural holders of government securities. They were undoubtedly acting in self-protection, but the responsibility rested upon them to take the lead. They were acting indeed for the public interest in the largest sense, for conditions in the United States were such that every man might become a landowner and the people in general therefore wished to have property rights protected. In the autumn of 1788 the Congress of the old Confederation made testamentary provision for its heir by voting that presidential electors should be chosen on the first Wednesday in January, 1789; that these electors should meet and cast their votes for President on the first Wednesday in February; and that the Senate and House of Representatives should assemble on the first Wednesday in March. It was also decided that the seat of government should be in the City of New York until otherwise ordered by Congress. In accordance with this procedure, the requisite elections were held, and the new government was duly installed. It happened in 1789 that the first Wednesday in March was the fourth day of that month, which thereby became the date for the beginning of each subsequent administration. The acid test of efficiency was still to be applied to the new machinery of government. But Americans then, as now, were an adaptable people, with political genius, and they would have been able to make almost any form of government succeed. If the Federal Convention had never met, there is good reason for believing that the Articles of Confederation, with some amendments, would have been made to work. The success of the new government was therefore in a large measure dependent upon the favor of the people. If they wished to do so, they could make it win out in spite of obstacles. In other words, the new government would succeed exactly to the extent to which the people stood back of it. This was the critical moment when the slowly growing prosperity, described at length and emphasized in the previous chapters, produced one of its most important effects. In June, 1788, Washington wrote to Lafayette: I expect, that many blessings will be attributed to our new government, which are now taking their rise from that industry and frugality into the practice of which the people have been forced from necessity. I really believe that there never was so much labour and economy to be found before in the country as at the present moment. If they persist in the habits they are acquiring, the good effects will soon be distinguishable. When the people shall find themselves secure under an energetic government, when foreign Nations shall be disposed to give us equal advantages in commerce from dread of retaliation, when the burdens of the war shall be in a manner done away by the sale of western lands, when the seeds of happiness which are sown here shall begin to expand themselves, and when every one (under his own vine and fig-tree) shall begin to taste the fruits of freedom--then all these blessings (for all these blessings will come) will be referred to the fostering influence of the new government. Whereas many causes will have conspired to produce them. A few months later a similar opinion was expressed by Crèvecœur in writing to Jefferson: Never was so great a change in the opinion of the best people as has happened these five years; almost everybody feels the necessity of coercive laws, government, union, industry, and labor.... The exports of this country have singularly increased within these two years, and the imports have decreased in proportion. The new Federal Government was fortunate in beginning its career at the moment when returning prosperity was predisposing the people to think well of it. The inauguration of Washington marked the opening of a new era for the people of the United States of America. APPENDIX ¹ ¹ The documents in this Appendix follow the text of the Revised Statutes of the United States, Second Edition, 1878. THE DECLARATION OF INDEPENDENCE--1776. In Congress, July 4, 1776 The unanimous Declaration of the thirteen united States of America When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within. He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands. He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our People, and eat out their substance. He has kept among us, in times of peace, Standing Armies without the Consent of our legislature. He has affected to render the Military independent of and superior to the Civil Power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended Legislation: For quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States: For cutting off our Trade with all parts of the world: For imposing taxes on us without our Consent: For depriving us in many cases, of the benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences: For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Government: For suspending our own Legislature, and declaring themselves invested with Power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us. He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large armies of foreign mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free People. Nor have We been wanting in attention to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence[.] They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. We, therefore, the Representative of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor. JOHN HANCOCK. New Hampshire. Josiah Bartlett, Wm. Whipple, Matthew Thornton. Massachusetts Bay. Saml. Adams, John Adams, Robt. Treat Paine, Elbridge Gerry. Rhode Island. Step. Hopkins, William Ellery. Connecticut. Roger Sherman, Sam'el Huntington, Wm. Williams, Oliver Wolcott. New York. Wm. Floyd, Phil. Livingston, Frans. Lewis, Lewis Morris. New Jersey. Richd. Stockton, Jno. Witherspoon, Fras. Hopkinson, John Hart, Abra. Clark. Pennsylvania. Robt. Morris, Benjamin Rush, Benja. Franklin, John Morton, Geo. Clymer, Jas. Smith, Geo. Taylor, James Wilson, Geo. Ross. Delaware. Cæsar Rodney, Geo. Read, Tho. M'Kean. Maryland. Samuel Chase, Wm. Paca, Thos. Stone, Charles Carroll of Carrollton. Virginia. George Wythe, Richard Henry Lee, Th. Jefferson, Benja. Harrison, Thos. Nelson, Jr., Francis Lightfoot Lee, Carter Braxton. North Carolina. Wm. Hooper, Joseph Hewes, John Penn. South Carolina. Edward Rutledge, Thos Heyward, Junr., Thomas Lynch, Junr., Arthur Middleton. Georgia. Button Gwinnett, Lyman Hall, Geo. Walton Note.--Mr. Ferdinand Jefferson, Keeper of the Rolls in the Department of State, at Washington, says: "The names of the signers are spelt above as in the fac-simile of the original, but the punctuation of them is not always the same; neither do the names of the States appear in the fac-simile of the original. The names of the signers of each State are grouped together in the fac-simile of the original, except the name of Matthew Thornton, which follows that of Oliver Wolcott." ARTICLES OF CONFEDERATION--1777. To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting. Whereas the Delegates of the United States of America in Congress assembled did on the fifteenth day of November in the Year of our Lord One Thousand Seven Hundred and Seventyseven, and in the Second Year of the Independence of America agree to certain articles of Confederation and perpetual Union between the States of Newhampshire, Massachusetts-bay, Rhodeisland and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia in the Words following, viz. "Articles of Confederation and perpetual Union between the States of Newhampshire, Massachusetts-bay, Rhodeisland and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia. Article I. The stile of this confederacy shall be "The United States of America." Article II. Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled. Article III. The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever. Article IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them. If any person guilty of, or charged with treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall upon demand of the Governor or Executive power, of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offence. Full faith and credit shall be given in each of these States to the records, acts and judicial proceedings of the courts and magistrates of every other State. Article V. For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State, to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the year. No State shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit receives any salary, fees or emolument of any kind. Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States. In determining questions in the United States, in Congress assembled, each State shall have one vote. Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace. Article VI. No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king prince or state; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office or title of any kind whatever from any king, prince or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility. No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue. No state shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any king, prince or state, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain. No vessels of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defence of such State, or its trade; nor shall any body of forces be kept up by any State, in time of peace, except such number only, as in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage. No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay, till the United States in Congress assembled can be consulted: nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the kingdom or state and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise. Article VII. When land-forces are raised by any State for the common defence, all officers of or under the rank of colonel, shall be appointed by the Legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment. Article VIII. All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the Legislatures of the several States within the time agreed upon by the United States in Congress assembled. Article IX. The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article--of sending and receiving ambassadors--entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever--of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated--of granting letters of marque and reprisal in times of peace--appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts. The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other cause whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress, stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question: but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the Secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgment, which shall in like manner be final and decisive, the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned: provided that every commissioner, before he sits in judgment, shall take an oath to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question, according to the best of his judgment, without favour, affection or hope of reward:" provided also that no State shall be deprived of territory for the benefit of the United States. All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdiction as they may respect such lands, and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States. The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States.--fixing the standard of weights and measures throughout the United States.--regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated--establishing and regulating post-offices from one State to another, throughout all the United States, and exacting such postage on the papers passing thro' the same as may be requisite to defray the expenses of the said office--appointing all officers of the land forces, in the service of the United States, excepting regimental officers--appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States--making rules for the government and regulation of the said land and naval forces, and directing their operations. The United States in Congress assembled shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated "a Committee of the States," and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction--to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses--to borrow money, or emit bills on the credit of the United States, transmitting every half year to the respective States an account of the sums of money so borrowed or emitted,--to build and equip a navy--to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the Legislature of each State shall appoint the regimental officers, raise the men and cloath, arm and equip them in a soldier like manner, at the expense of the United States; and the officers and men so cloathed, armed and equipped shall march to the place appointed, and within the time agreed on by the United States in Congress assembled: but if the United States in Congress assembled shall, on consideration of circumstances judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, cloathed, armed and equipped in the same manner as the quota of such State, unless the legislature of such State shall judge that such extra number cannot be safely spared out of the same, in which case they shall raise officer, cloath, arm and equip as many of such extra number as they judge can be safely spared. And the officers and men so cloathed, armed and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled. The United States in Congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine States assent to the same: nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of a majority of the United States in Congress assembled. The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secresy; and the yeas and nays of the delegates of each State on any question shall be entered on the journal, when it is desired by any delegate; and the delegates of a State, or any of them, at his or their request shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the Legislatures of the several States. Article X. The committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said committee, for the exercise of which, by the articles of confederation, the voice of nine States in the Congress of the United States assembled is requisite. Article XI. Canada acceding to this confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine States. Article XII. All bills of credit emitted, monies borrowed and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith are hereby solemnly pledged. Article XIII. Every State shall abide by the determinations of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the articles of this confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legislatures of every State. And whereas it has pleased the Great Governor of the world to incline the hearts of the Legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said articles of confederation and perpetual union. Know ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters and things therein contained: and we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said confederation are submitted to them. And that the articles thereof shall be inviolably observed by the States we re[s]pectively represent, and that the Union shall be perpetual. In witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the year of our Lord one thousand seven hundred and seventy-eight, and in the third year of the independence of America. ¹ ¹ From the circumstances of delegates from the same State having signed the Articles of Confederation at different times, as appears by the dates, it is probable they affixed their names as they happened to be present in Congress, after they had been authorized by their constituents. On the part & behalf of the State of New Hampshire. Josiah Bartlett, John Wentworth, Junr., August 8th, 1778. On the part and behalf of the State of Massachusetts Bay. John Hancock, Samuel Adams, Elbridge Gerry, Francis Dana, James Lovell, Samuel Holten. On the part and behalf of the State of Rhode Island and Providence Plantations. Williams Ellery, Henry Marchant, John Collins. On the part and behalf of the State of Connecticut. Roger Sherman, Samuel Huntington, Oliver Wolcott, Titus Hosmer, Andrew Adams. On the part and behalf of the State of New York. Jas. Duane, Fra. Lewis, Wm. Duer, Gouv. Morris. On the part and behalf of the State of New Jersey, Novr. 26, 1778. Jno. Witherspoon. Nathl. Scudder. On the part & behalf of the State of Pennsylvania. Robt. Morris, Daniel Roberdeau, Jona. Bayard Smith, William Clingan, Joseph Reed, 22d July, 1778. On the part & behalf of the State of Delaware. Tho. M'Kean, Feby. 12, 1779. John Dickinson, May 5, 1779. Nicholas Van Dyke. On the part and behalf of the State of Maryland. John Hanson, March 1, 1781. Daniel Carroll, Mar. 1, 1781. On the part and behalf of the State of Virginia. Richard Henry Lee, John Banister, Thomas Adams, Jno. Harvie, Francis Lightfoot Lee. On the part and behalf of the State of No. Carolina. John Penn, July 21st, 1778. Corns. Harnett, Jno. Williams. On the part & behalf of the State of South Carolina. Henry Laurens, William Henry Drayton, Jno. Mathews, Richd. Hutson, Thos. Heyward, Junr. On the part & behalf of the State of Georgia. Jno. Walton, 24th July, 1778. Edwd. Telfair, Edwd. Langworthy. THE NORTHWEST TERRITORIAL GOVERNMENT--1787. THE CONFEDERATE CONGRESS, JULY 13, 1787. An Ordinance for the government of the territory of the United States northwest of the river Ohio. Section 1. Be it ordained by the United States in Congress assembled, That the said territory, for the purpose of temporary government, be one district, subject, however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient. Sec. 2. Be it ordained by the authority aforesaid, That the estates both of resident and non-resident proprietors in the said territory, dying intestate, shall descend to, and be distributed among, their children and the descendants of a deceased child in equal parts, the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them; and where there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate shall have, in equal parts among them, their deceased parent's share; and there shall, in no case, be a distinction between kindred of the whole and half blood; saving in all cases to the widow of the intestate, her third part of the real estate for life, and one-third part of the personal estate; and this law relative to descents and dower, shall remain in full force until altered by the legislature of the district. And until the governor and judges shall adopt laws as hereinafter mentioned, estates in the said territory may be devised or bequeathed by wills in writing, signed and sealed by him or her in whom the estate may be, (being of full age,) and attested by three witnesses; and real estates may be conveyed by lease and release, or bargain and sale, signed, sealed, and delivered by the person, being of full age, in whom the estate may be, and attested by two witnesses, provided such wills be duly proved, and such conveyances be acknowledged, or the execution thereof duly proved, and be recorded within one year after proper magistrates, courts, and registers, shall be appointed for that purpose; and personal property may be transferred by delivery, saving, however, to the French and Canadian inhabitants, and other settlers of the Kaskaskias, Saint Vincents, and the neighboring villages, who have heretofore professed themselves citizens of Virginia, their laws and customs now being in force among them, relative to the descent and conveyance of property. Sec. 3. Be it ordained by the authority aforesaid, That there shall be appointed, from time to time, by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress; he shall reside in the district, and have a freehold estate therein, in one thousand acres of land, while in the exercise of his office. Sec. 4. There shall be appointed from time to time, by Congress, a secretary, whose commission shall continue in force for four years, unless sooner revoked; he shall reside in the district, and have a freehold estate therein, in five hundred acres of land, while in the exercise of his office. It shall be his duty to keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his executive department, and transmit authentic copies of such acts and proceedings every six months to the Secretary of Congress. There shall also be appointed a court, to consist of three judges, any two of whom to form a court, who shall have a common-law jurisdiction, and reside in the district, and have each therein a freehold estate, in five hundred acres of land, while in the exercise of their offices; and their commissions shall continue in force during good behavior. Sec. 5. The governor and judges, or a majority of them, shall adopt and publish in the distric[t] such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress from time to time, which laws shall be in force in the district until the organization of the general assembly therein, unless disapproved of by Congress; but afterwards the legislature shall have authority to alter them as they shall think fit. Sec. 6. The governor, for the time being, shall be commander-in-chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress. Sec. 7. Previous to the organization of the general assembly the governor shall appoint such magistrates, and other civil officers, in each county or township, as he shall find necessary for the preservation of the peace and good order in the same. After the general assembly shall be organized the powers and duties of magistrates and other civil officers shall be regulated and defined by the said assembly; but all magistrates and other civil officers, not herein otherwise directed, shall, during the continuance of this temporary government, be appointed by the governor. Sec. 8. For the prevention of crimes and injuries, the laws to be adopted or made shall have force in all parts of the district, and for the execution of process, criminal and civil, the governor shall make proper divisions thereof; and he shall proceed, from time to time, as circumstances may require, to lay out the parts of the district in which the Indian titles shall have been extinguished, into counties and townships, subject, however, to such alterations as may thereafter be made by the legislature. Sec. 9. So soon as there shall be five thousand free male inhabitants, of full age, in the district, upon giving proof thereof to the governor, they shall receive authority, with time and place, to elect representatives from their counties or townships, to represent them in the general assembly: Provided, That for every five hundred free male inhabitants there shall be one representative, and so on, progressively, with the number of free male inhabitants, shall the right of representation increase, until the number of representatives shall amount to twenty-five; after which the number and proportion of representatives shall be regulated by the legislature: Provided, That no person be eligible or qualified to act as a representative, unless he shall have been a citizen of one of the United States three years, and be a resident in the district, or unless he shall have resided in the district three years; and, in either case, shall likewise hold in his own right, in fee-simple, two hundred acres of land within the same: Provided also, That a freehold in fifty acres of land in the district, having been a citizen of one of the States, and being resident in the district, or the like freehold and two years' residence in the district, shall be necessary to qualify a man as an elector of a representative. Sec. 10. The representatives thus elected shall serve for the term of two years; and in case of the death of a representative, or removal from office, the governor shall issue a writ to the county or township, for which he was a member, to elect another in his stead, to serve for the residue of the term. Sec. 11. The general assembly, or legislature, shall consist of the governor, legislative council, and a house of representatives. The legislative council shall consist of five members, to continue in office five years, unless sooner removed by Congress; any three of whom to be a quorum; and the members of the council shall be nominated and appointed in the following manner, to wit: As soon as representatives shall be elected the governor shall appoint a time and place for them to meet together, and when met they shall nominate ten persons, resident in the district, and each possessed of a freehold in five hundred acres of land, and return their names to Congress, five of whom Congress shall appoint and commission to serve as aforesaid; and whenever a vacancy shall happen in the council, by death or removal from office, the house of representatives shall nominate two persons, qualified as aforesaid, for each vacancy, and return their names to Congress, one of whom Congress shall appoint and commission for the residue of the term; and every five years, four months at least before the expiration of the time of service of the members of the council, the said house shall nominate ten persons, qualified as aforesaid, and return their names to Congress, five of whom Congress shall appoint and commission to serve as members of the council five years, unless sooner removed. And the governor, legislative council, and house of representatives shall have authority to make laws in all cases for the good government of the district, not repugnant to the principles and articles in this ordinance established and declared. And all bills, having passed by a majority in the house, and by a majority in the council, shall be referred to the governor for his assent; but no bill, or legislative act whatever, shall be of any force without his assent. The governor shall have power to convene, prorogue, and dissolve the general assembly when, in his opinion, it shall be expedient. Sec. 12. The governor, judges, legislative council, secretary, and such other officers as Congress shall appoint in the district, shall take an oath or affirmation of fidelity, and of office; the governor before the President of Congress, and all other officers before the governor. As soon as a legislature shall be formed in the district, the council and house assembled, in one room, shall have authority, by joint ballot, to elect a delegate to Congress, who shall have a seat in Congress, with a right of debating, but not of voting, during this temporary government. Sec. 13. And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory; to provide, also, for the establishment of States, and permanent government therein, and for their admission to a share in the Federal councils on an equal footing with the original States, at as early periods as may be consistent with the general interest: Sec. 14. It is hereby ordained and declared, by the authority aforesaid, that the following articles shall be considered as articles of compact, between the original States and the people and States in the said territory, and forever remain unalterable, unless by common consent, to wit: ARTICLE I. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship, or religious sentiments, in the said territories. ARTICLE II. The inhabitants of the said territory shall always be entitled to the benefits of the writs of habeas corpus, and of the trial by jury; of a propo[r]tionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts, or engagements, bona fide, and without fraud previously formed. ARTICLE III. Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights, and liberty they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall, from time to time, be made, for preventing wrongs being done to them, and for preserving peace and friendship with them. ARTICLE IV. The said territory, and the States which may be formed therein, shall forever remain a part of this confederacy of the United States of America, subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the acts and ordinances of the United States in Congress assembled, conformable thereto. The inhabitants and settlers in the said territory shall be subject to pay a part of the Federal debts, contracted, or to be contracted, and a proportional part of the expenses of government to be apportioned on them by Congress, according to the same common rule and measure by which apportionments thereof shall be made on the other States; and the taxes for paying their proportion shall be laid and levied by the authority and direction of the legislatures of the district, or districts, or new States, as in the original States, within the time agreed upon by the United States in Congress assembled. The legislatures of those districts, or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona-fide purchasers. No tax shall be imposed on lands the property of the United States; and in no case shall non-resident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor. ARTICLE V. There shall be formed in the said territory not less than three nor more than five States; and the boundaries of the States, as soon as Virginia shall alter her act of cession and consent to the same, shall become fixed and established as follows, to wit: The western State, in the said territory, shall be bounded by the Mississippi, the Ohio, and the Wabash Rivers; a direct line drawn from the Wabash and Post Vincents, due north, to the territorial line between the United States and Canada; and by the said territorial line to the Lake of the Woods and Mississippi. The middle State shall be bounded by the said direct line, the Wabash from Post Vincents to the Ohio, by the Ohio, by a direct line drawn due north from the mouth of the Great Miami to the said territorial line, and by the said territorial line. The eastern State shall be bounded by the last-mentioned direct line, the Ohio, Pennsylvania, and the said territorial line: Provided, however, And it is further understood and declared, that the boundaries of these three States shall be subject so far to be altered, that, if Congress shall hereafter find it expedient, they shall have authority to form one or two States in that part of the said territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan. And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever; and shall be at liberty to form a permanent constitution and State government: Provided, The constitution and government, so to be formed, shall be republican, and in conformity to the principles contained in these articles, and, so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants in the State than sixty thousand. ARTICLE VI. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted: Provided always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid. Be it ordained by the authority aforesaid, That the resolutions of the 23d of April, 1784, relative to the subject of this ordinance, be, and the same are hereby, repealed, and declared null and void. Done by the United States, in Congress assembled, the 13th day of July, in the year of our Lord 1787, and of their sovereignty and independence the twelfth. CONSTITUTION OF THE UNITED STATES--1787. We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this constitution for the United States of America. ARTICLE I. Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section. 2. 1 The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. 2 No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. 3 [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.] The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. 4 When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. 5 The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Section. 3. 1 The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. 2 Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one-third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. 3 No Person shall be a Senator who shall not have attained to the Age of thi[r]ty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. 4 The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. 5 The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. 6 The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without Concurrence of two thirds of the Members present. 7 Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section. 4. 1 The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. 2 The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section. 5. 1 Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. 2 Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member. 3 Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those present, be entered on the Journal. 4 Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section. 6. 1 The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. 2 No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. Section. 7. 1 All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. 2 Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. 3 Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. Section. 8. 1 The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; 2 To borrow Money on the credit of the United States; 3 To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; 4 To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; 5 To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; 6 To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; 7 To establish Post Offices and post Roads; 8 To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; 9 To constitute Tribunals inferior to the supreme Court; 10 To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; 11 To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; 12 To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; 13 To provide and maintain a Navy; 14 To make Rules for the Government and Regulation of the land and naval Forces; 15 To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 16 To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; 17 To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And 18 To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Section. 9. 1 The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. 2 The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. 3 No Bill of Attainder or expost facto Law shall be passed. 4 No Capitation, or other direct, tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. 5 No Tax or Duty shall be laid on Articles exported from any State. 6 No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. 7 No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. 8 No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section. 10. 1 No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. 2 No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. 3 No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. ARTICLE II. Section. 1. 1 The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows 2 Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. 3 The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. 4 No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. 5 In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. 6 The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. 7 Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." Section. 2. 1 The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. 2 He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. 3 The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE III. Section. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section. 2. 1 The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects; 2 In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. 3 The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section. 3. 1 Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. 2 The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE IV. Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Section. 2. 1 The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. 2 A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the Executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime. 3 No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. Section. 3. 1 New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. 2 The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLE V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE. VI. 1 All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. 2 This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 3 The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. ARTICLE VII. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names, GO: WASHINGTON-- Presidt. and Deputy from Virginia. New Hampshire. John Langdon Nicholas Gilman Massachusetts. Nathaniel Gorham Rufus King Connecticut. Wm. Saml. Johnson Roger Sherman New York. Alexander Hamilton New Jersey. Wil: Livingston David Brearley Wm. Patterson Jona: Dayton Pennsylvania. B. Frnklin Thomas Mifflin Robt. Morris Geo. Clymer Thos. Fitzsimons Jared Ingersoll James Wilson Gouv Morris Delaware. Geo: Read Gunning Bedford Jun John Dickerson Richard Bassett Jaco: Broom Maryland. James McHenry Dan of St Thos Jenifer Danl. Carroll Virginia. John Blair-- James Madison Jr. North Carolina. Wm. Blount Richd. Dobbs Spaight Hu Williamson South Carolina. J. Rutledge Charles Cotesworth Pinckney Charles Pinckney Pierce Butler Georgia. William Few Abr Baldwin Attest William Jackson, Secretary BIBLIOGRAPHICAL NOTE There are many comprehensive histories which include the period covered by the present volume, of which a few--without disparaging the others--are deserving of mention for some particular reason. David Ramsay's History of the American Revolution, 2 vols. (1789, and subsequently reprinted), gives but little space to this particular period, but it reveals the contemporary point of view. Richard Hildreth's History of the United States, 6 vols. (1849-1852), is another early work that is still of value, although it is written with a Federalist bias. J. B. McMaster's History of the People of the United States from the Revolution to the Civil War, 8 vols. (1883-1913), presents a kaleidoscopic series of pictures gathered largely from contemporary newspapers, throwing light upon, and adding color to the story. E. M. Avery's History of the United States, of which seven volumes have been published (1904-1910), is remarkable for its illustrations and reproductions of prints, documents, and maps. Edward Channing's History of the United States, of which four volumes have appeared (1905-1917), is the latest, most readable, and probably the best of these comprehensive histories. Although it was subsequently published as Volume VI in a revised edition of his History of the United States of America, George Bancroft's History of the Formation of the Constitution, 2 vols. (1882), is really a separate work. The author appears at his best in these volumes and has never been entirely superseded by later writers. G. T. Curtis's History of the Constitution of the United States, 2 vols. (1854), which also subsequently appeared as Volume I of his Constitutional History of the United States, is one of the standard works, but does not retain quite the same hold that Bancroft's volumes do. Of the special works more nearly covering the same field as the present volume, A. C. McLaughlin's The Confederation and the Constitution (1905), in the American Nation, is distinctly the best. John Fiske's Critical Period of American History (1888), written with the clearness of presentation and charm of style which are characteristic of the author, is an interesting and readable comprehensive account. Richard Frothingham's Rise of the Republic of the United States (1872; 6th ed. 1895), tracing the two ideas of local self-government and of union, begins with early colonial times and culminates in the Constitution. The treaty of peace opens up the whole field of diplomatic history, which has a bibliography of its own. But E. S. Corwin's French Policy and the American Alliance (1916) should be mentioned as the latest and best work, although it lays more stress upon the phases indicated by the title. C. H. Van Tyne's Loyalists in the American Revolution (1902) remains the standard work on this subject, but special studies are appearing from time to time which are changing our point of view. The following books on economic and industrial aspects are not for popular reading, but are rather for reference: E. R. Johnson et al., History of the Domestic and Foreign Commerce of the United States, 2 vols. (1915); V. S. Clark, History of the Manufactures of the United States, 1607-1860 (1916). G. S. Callender has written short introductions to the various chapters of his Selections from the Economic History of the United States (1909), which are brilliant interpretations of great value. P. J. Treat's The National Land System, 1785-1820 (1910), gives the most satisfactory account of the subject indicated by the title. Of entirely different character is Theodore Roosevelt's Winning of the West, 4 vols. (1889-96; published subsequently in various editions), which is both scholarly and of fascinating interest on the subject of the early expansion into the West. On the most important subject of all, the formation of the Constitution, the material ordinarily wanted can be found in Max Farrand's Records of the Federal Convention, 3 vols. (1910), and the author has summarized the results of his studies in The Framing of the Constitution (1913). C. A. Beard's An Economic Interpretation of the Constitution of the United States (1913) gives some interesting and valuable facts regarding economic aspects of the formation of the Constitution, and particularly on the subject of investments in government securities. There is no satisfactory account of the adoption of the Constitution, but the debates in many of the State conventions are included in Jonathan Elliot's Debates on the Federal Constitution, 5 vols. (1836-1845, subsequently reprinted in many editions). A few special works upon the adoption of the Constitution in the individual States may be mentioned: H. B. Grigsby's History of the Virginia Federal Convention of 1788, Virginia Historical Society Collections, N. S., IX and X (1890-91); McMaster and Stone's Pennsylvania and the Federal Constitution, 1787-88 (1888); S. B. Harding's Contest over the Ratification of the Federal Constitution in the State of Massachusetts (1896); O. G. Libby's The Geographical Distribution of the Vote of the Thirteen States on the Federal Constitution, 1787-1788 (University of Wisconsin, Bulletin, Economics, Political Science, and History Series, I, No. 1, 1894). Contemporary differences of opinion upon the Constitution will be found in P. L. Ford's Pamphlets on the Constitution, etc. (1888). The most valuable commentary on the Constitution, The Federalist, is to be found in several editions of which the more recent are by E. H. Scott (1895) and P. L. Ford (1898). A large part of the so-called original documents or first-hand sources of information is to be found in letters and private papers of prominent men. For most readers there is nothing better than the American Statesmen Series, from which the following might be selected: H. C. Lodge's George Washington (2 vols., 1889) and Alexander Hamilton (1882); J. T. Morse's Benjamin Franklin (1889), John Adams (1885), and Thomas Jefferson (1883); Theodore Roosevelt's Gouverneur Morris, (1888). Other readable volumes are P. L. Ford's The True George Washington (1896) and The Many-sided Franklin (1899); F. S. Oliver's Alexander Hamilton, An Essay on American Union (New ed. London, 1907); W. G. Brown's Life of Oliver Ellsworth (1905); A. McL. Hamilton's The Intimate Life of Alexander Hamilton (1910); James Schouler's Thomas Jefferson (1893); Gaillard Hunt's Life of James Madison (1902). Of the collections of documents it may be worth while to notice: Documentary History of the Constitution of the United States, 5 vols. (1894-1905); B. P. Poore's Federal and State Constitutions, Colonial Charters, etc., 2 vols. (1877); F. N. Thorpe's The Federal and State Constitutions, Colonial Charters, and other Organic Laws, 7 vols. (1909); and the Journals of the Continental Congress (1904-1914), edited from the original records in the Library of Congress by Worthington C. Ford and Gaillard Hunt, of which 23 volumes have appeared, bringing the records down through 1782. NOTES ON THE PORTRAITS OF MEMBERS OF THE FEDERAL CONVENTION WHO SIGNED THE CONSTITUTION By Victor Hugo Paltsis Forty signatures were attached to the Constitution of the United States in the Federal Convention on September 17, 1787, by thirty-nine delegates, representing twelve States, and the secretary of the Convention, as the attesting officer. George Washington, who signed as president of the Convention, was a delegate from Virginia. There are reproduced in this volume the effigies or pretended effigies of thirty-seven of them, from etchings by Albert Rosenthal in an extra-illustrated volume devoted to the Members of the Federal Convention, 1787, in the Thomas Addis Emmet Collection owned by the New York Public Library. The autographs are from the same source. This series presents no portraits of David Brearley of New Jersey, Thomas Fitzsimons of Pennsylvania, and Jacob Broom of Delaware. With respect to the others we give such information as Albert Rosenthal, the Philadelphia artist, inscribed on each portrait and also such other data as have been unearthed from the correspondence of Dr. Emmet, preserved in the Manuscript Division of the New York Public Library. Considerable controversy has raged, on and off, but especially of late, in regard to the painted and etched portraits which Rosenthal produced nearly a generation ago, and in particular respecting portraits which were hung in Independence Hall, Philadelphia. Statements in the case by Rosenthal and by the late Charles Henry Hart are in the American Art News, March 3, 1917, p. 4. See also Hart's paper on bogus American portraits in Annual Report, 1913, of the American Historical Association. To these may be added some interesting facts which are not sufficiently known by American students. In the ninth decade of the nineteenth century, principally from 1885 to 1888, a few collectors of American autographs united in an informal association which was sometimes called a "Club," for the purpose of procuring portraits of American historical characters which they desired to associate with respective autographs as extra-illustrations. They were pioneers in their work and their purposes were honorable. They coöperated in effort and expenses, in a most commendable mutuality. Prime movers and workers were the late Dr. Emmet, of New York, and Simon Gratz, Esq., still active in Philadelphia. These men have done much to stimulate appreciation for and the preservation of the fundamental sources of American history. When they began, and for many years thereafter, not the same critical standards reigned among American historians, much less among American collectors, as the canons now require. The members of the "Club" entered into an extensive correspondence with the descendants of persons whose portraits they wished to trace and then have reproduced. They were sometimes misled by these descendants, who themselves, often great-grandchildren or more removed by ties and time, assumed that a given portrait represented the particular person in demand, because in their own uncritical minds a tradition was as good as a fact. The members of the "Club," then, did the best they could with the assistance and standards of their time. The following extract from a letter written by Gratz to Emmet, November 10, 1885, reveals much that should be better known. He wrote very frankly as follows: "What you say in regard to Rosenthal's work is correct: but the fault is not his. Many of the photographs are utterly wanting in expression or character; and if the artist were to undertake to correct these deficiencies by making the portrait what he may suppose it should be, his production (while presenting a better appearance artistically) might be very much less of a likeness than the photograph from which he works. Rosenthal always shows me a rough proof of the unfinished etching, so that I may advise him as to corrections & additions which I may consider justifiable & advisable." Other correspondence shows that Rosenthal received about twenty dollars for each plate which he etched for the "Club." The following arrangement of data follows the order of the names as signed to the Constitution. The Emmet numbers identify the etchings in the bound volume from which they have been reproduced. 1. George Washington, President (also delegate from Virginia), Emmet 9497, inscribed "Joseph Wright Pinxit Phila. 1784. Albert Rosenthal Phila. 1888. Aqua fortis." NEW HAMPSHIRE 2. John Langdon, Emmet 9439, inscribed "Etched by Albert Rosenthal Phila. 1888 after Painting by Trumbull." Mr. Walter Langdon, of Hyde Park, N. Y., in January, 1885, sent to Dr. Emmet a photograph of a "portrait of Governor John Langdon LL.D." An oil miniature painted on wood by Col. John Trumbull, in 1792, is in the Yale School of Fine Arts. There is also painting of Langdon in Independence Hall, by James Sharpless. 3. Nicholas Gilman, Emmet 9441, inscribed "Etched by Albert Rosenthal Phila. 1888." A drawing by the same artist formerly hung in Independence Hall. The two are not at all alike. No contemporary attribution is made and the Emmet correspondence reveals nothing. MASSACHUSETTS 4. Nathaniel Gorham, Emmet 9443. It was etched by Albert Rosenthal but without inscription of any kind or date. A painting by him, in likeness identical, formerly hung in Independence Hall. No evidence in Emmet correspondence. 5. Rufus King, Emmet 9445, inscribed "Etched by Albert Rosenthal Phila. 1888 after Painting by Trumbull." King was painted by Col. John Trumbull from life and the portrait is in the Yale School of Fine Arts. Gilbert Stuart painted a portrait of King and there is one by Charles Willson Peale in Independence Hall. CONNECTICUT 6. William Samuel Johnson, Emmet 9447, inscribed "Etched by Albert Rosenthal Phila. 1888 from Painting by Gilbert Stuart." A painting by Rosenthal after Stuart hung in Independence Hall. Stuart's portrait of Dr. Johnson "was one of the first, if not the first, painted by Stuart after his return from England." Dated on back 1792. Also copied by Graham.--Mason, Life of Stuart, 208. 7. Roger Sherman, Emmet 9449, inscribed "Etched by Albert Rosenthal Phila. 1888 after Painting by Earle." The identical portrait copied by Thomas Hicks, after Ralph Earle, is in Independence Hall. NEW YORK 8. Alexander Hamilton, Emmet 9452, inscribed "Etched by Albert Rosenthal 1888 after Trumbull." A full length portrait, painted by Col. John Trumbull, is in the City Hall, New York. Other Hamilton portraits by Trumbull are in the Metropolitan Museum of Art, New York, the Boston Museum of Art, and in private possession. NEW JERSEY 9. William Livingston, Emmet 9454, inscribed "Etched by Albert Rosenthal Phila., 1888." A similar portrait, painted by Rosenthal, formerly hung in Independence Hall. No correspondence relating to it is in the Emmet Collection. 10. David Brearley. There is no portrait. Emmet 9456 is a drawing of a Brearley coat-of-arms taken from a book-plate. 11. William Paterson, Emmet 9458, inscribed "Albert Rosenthal Phila. 1888." A painted portrait by an unknown artist was hung in Independence Hall. The Emmet correspondence reveals nothing. 12. Jonathan Dayton, Emmet 9460, inscribed "Albert Rosenthal." A painting by Rosenthal also formerly hung in Independence Hall. The two are dissimilar. The etching is a profile, but the painting is nearly a full-face portrait. The Emmet correspondence reveals no evidence. PENNSYLVANIA 13. Benjamin Franklin, Emmet 9463, inscribed "C. W. Peale Pinxit. Albert Rosenthal Sc." 14. Thomas Mifflin, Emmet 9466, inscribed "Etched by Albert Rosenthal Phila. 1888 after Painting by Gilbert Stuart." A portrait by Charles Willson Peale, in civilian dress, is in Independence Hall. The Stuart portrait shows Mifflin in military uniform. 15. Robert Morris, Emmet 9470, inscribed "Gilbert Stuart Pinxit. Albert Rosenthal Sc." The original painting is in the Historical Society of Pennsylvania. Stuart painted Morris in 1795. A copy was owned by the late Charles Henry Hart; a replica also existed in the possession of Morris's granddaughter.--Mason, Life of Stuart, 225. 16. George Clymer, Emmet 9475, inscribed "Etched by Albert Rosenthal Phila. 1888 after Painting by C. W. Peale." There is a similar type portrait, yet not identical, in Independence Hall, where the copy was attributed to Dalton Edward Marchant. 17. Thomas Fitzsimons. There is no portrait and the Emmet correspondence offers no information. 18. Jared Ingersoll, Emmet 9468, inscribed "Etched by Albert Rosenthal after Painting by C. W. Peale." A portrait of the same origin, said to have been copied by George Lambdin, "after Rembrandt Peale," hung in Independence Hall. 19. James Wilson, Emmet 9472, inscribed "Etched by Albert Rosenthal 1888." Seems to have been derived from a painting by Charles Willson Peale in Independence Hall. 20. Gouverneur Morris, Emmet 9477, inscribed "Etched by Albert Rosenthal Phila. 1888 after a copy by Marchant from Painting by T. Sully." The Emmet correspondence has no reference to it. DELAWARE 21. George Read, Emmet 9479, inscribed "Etched by Albert Rosenthal Phila. 1888." There is in Emmet 9481 a stipple plate "Engraved by J. B. Longacre from a Painting by Pine." It is upon the Longacre-Pine portrait that Rosenthal and others, like H. B. Hall, have depended for their portrait of Read. 22. Gunning Bedford, Jr., Emmet 9483, inscribed "Etched by Albert Rosenthal Phila. 1888." Rosenthal also painted a portrait, "after Charles Willson Peale," for Independence Hall. The etching is the same portrait. On May 13, 1883, Mr. Simon Gratz wrote to Dr. Emmet: "A very fair lithograph can, I think, be made from the photograph of Gunning Bedford, Jun.; which I have just received from you. I shall call the artist's attention to the excess of shadow on the cravat." The source was a photograph furnished by the Bedford descendants. 23. John Dickinson, Emmet 9485, inscribed "Etched by Albert Rosenthal Phila. 1888 after Painting by C. W. Peale." The Peale painting is in Independence Hall. 24. Richard Bassett, Emmet 9487, inscribed "Albert Rosenthal." There was also a painting by Rosenthal in Independence Hall. While similar in type, they are not identical. They vary in physiognomy and arrangement of hair. There is nothing in the Emmet correspondence about this portrait. 25. Jacob Broom. There is no portrait and no information in the Emmet correspondence. MARYLAND 26. James McHenry, Emmet 9490, inscribed "Etched by Albert Rosenthal Phila. 1888." Rosenthal also painted a portrait for Independence Hall "after Saint-Memin." They are not alike. The etching faces three-quarters to the right, whilst the St. Memin is a profile portrait. In January, 1885, Henry F. Thompson, of Baltimore, wrote to Dr. Emmet: "If you wish them, you can get Portraits and Memoirs of James McHenry and John E. Howard from their grandson J. Howard McHenry whose address is No. 48 Mount Vernon Place, Baltimore." 27. Daniel of St. Thomas Jenifer, Emmet 9494, inscribed "Etched by Albert Rosenthal Phila. 1888 after Trumbull." Rosenthal also painted a portrait for Independence Hall. They are not identical. A drawn visage is presented in the latter. In January, 1885, Henry F. Thompson of Baltimore, wrote to Dr. Emmet: "Mr. Daniel Jenifer has a Portrait of his Grand Uncle Daniel of St. Thomas Jenifer and will be glad to make arrangements for you to get a copy of it.... His address is No. 281 Linden Ave, Baltimore." In June, of the same year, Simon Gratz wrote to Emmet: "The Dan. of St. Thos. Jenifer is so bad, that I am almost afraid to give it to Rosenthal. Have you a better photograph of this man (from the picture in Washington [sic.]), spoken of in one of your letters?" 28. Daniel Carroll, Emmet 9492, inscribed "Etched by Albert Rosenthal, Phila. 1888." Henry F. Thompson, of Baltimore, in January, 1885, wrote to Dr. Emmet: "If you will write to Genl. John Carroll No. 61 Mount Vernon Place you can get a copy of Mr. Carroll's (generally known as Barrister Carroll) Portrait." VIRGINIA 29. John Blair, Emmet 9500, inscribed "Albert Rosenthal Etcher." He also painted a portrait for Independence Hall. The two are of the same type but not alike. The etching is a younger looking picture. There is no evidence in the Emmet correspondence. 30. James Madison, Jr., Emmet 9502, inscribed "Etched by Albert Rosenthal Phila. 1888 after Painting by G. Stuart." Stuart painted several paintings of Madison, as shown in Mason, Life of Stuart, pp. 218-9. Possibly the Rosenthal etching was derived from the picture in the possession of the Coles family of Philadelphia. NORTH CAROLINA 31. William Blount, Emmet 9504, inscribed "Etched by Albert Rosenthal Phila. 1888." He also painted a portrait for Independence Hall. The two are alike. In November, 1885, Moses White, of Knoxville, Tenn., wrote thus: "Genl. Marcus J. Wright, published, last year, a life of Win. Blount, which contains a likeness of him.... This is the only likeness of Gov. Blount that I ever saw." This letter was written to Mr. Bathurst L. Smith, who forwarded it to Dr. Emmet. 32. Richard Dobbs Spaight, Emmet 9506, inscribed "Etched by Albert Rosenthal Phila. 1887." In Independence Hall is a portrait painted by James Sharpless. On comparison these two are of the same type but not alike. The etching presents an older facial appearance. On November 8, 1886, Gen. John Meredith Read, writing from Paris, said he had found in the possession of his friend in Paris, J. R. D. Shepard, "St. Memin's engraving of his great-grandfather Governor Spaight of North Carolina." In 1887 and 1888, Dr. Emmet and Mr. Gratz were jointly interested in having Albert Rosenthal engrave for them a portrait of Spaight. On December 9, 1887, Gratz wrote to Emmet: "Spaight is worthy of being etched; though I can scarcely agree with you that our lithograph is not a portrait of the M. O. C. Is it taken from the original Sharpless portrait, which hangs in our old State House? ... However if you are sure you have the right man in the photograph sent, we can afford to ignore the lithograph." 33. Hugh Williamson, Emmet 9508, inscribed "Etched by Albert Rosenthal after Painting by J. Trumbull Phila. 1888," Rosenthal also painted a copy "after John Wesley Jarvis" for Independence Hall. The two are undoubtedly from the same original source. The Emmet correspondence presents no information on this subject. SOUTH CAROLINA 34. John Rutledge, Emmet 9510, inscribed "Etched by Albert Rosenthal Phila. 1888 after J. Trumbull." The original painting was owned by the Misses Rutledge, of Charleston, S. C. 35. Charles Cotesworth Pinckney, Emmet 9512, inscribed "Etched by Albert Rosenthal Phila. 1888. Painting by Trumbull." An oil miniature on wood was painted by Col. John Trumbull, in 1791, which is in the Yale School of Fine Arts. Pinckney was also painted by Gilbert Stuart and the portrait was owned by the family at Runnymeade, S. C. Trumbull's portrait shows a younger face. 36. Charles Pinckney, Emmet 9514, inscribed "Etched by Albert Rosenthal Phila. 1888." He also painted a portrait for Independence Hall. They are alike. In the Emmet correspondence the following information, furnished to Dr. Emmet, is found: "Chas. Pinckney--Mr. Henry L. Pinckney of Stateburg [S. C.] has a picture of Gov. Pinckney." The owner of this portrait was a grandson of the subject. On January 12, 1885, P. G. De Saussure wrote to Emmet: "Half an hour ago I received from the Photographer two of the Pictures [one being] Charles Pinckney copied from a portrait owned by Mr. L. Pinckney--who lives in Stateburg, S. C." The owner had put the portrait at Dr. Emmet's disposal, in a letter of December 4, 1884, in which he gave its dimensions as "about 3 ft. nearly square," and added, "it is very precious to me." 37. Pierce Butler, Emmet 9516, inscribed "Etched by Albert Rosenthal Phila. 1888." He also painted a portrait for Independence Hall. They are dissimilar and dubious. Three letters in the Emmet correspondence refer to the Butler portraiture. On January 31, 1887, Mrs. Sarah B. Wister, of Philadelphia, wrote to Dr. Emmet: "I enclose photograph copies of two miniatures of Maj. Butler wh. Mr. Louis Butler [a bachelor then over seventy years old living in Paris, France] gave me not long ago: I did not know of their existence until 1882, & never heard of any likeness of my great-grandfather, except an oil-portrait wh. was last seen more than thirty years ago in a lumber room in his former house at the n. w. corner of 8th & Chestnut streets [Phila.], since then pulled down." On February 8th, Mrs. Wister wrote: "I am not surprised that the two miniatures do not strike you as being of the same person. Yet I believe there is no doubt of it; my cousin had them from his father who was Maj. Butler's son. The more youthful one is evidently by a poor artist, & therefore probably was a poor likeness." In her third letter to Dr. Emmet, on April 5, 1888, Mrs. Wister wrote: "I sent you back the photo. from the youthful miniature of Maj. Butler & regret very much that I have no copy of the other left; but four sets were made of wh. I sent you one & gave the others to his few living descendants. I regret this all the more as I am reluctant to trust the miniature again to a photographer. I live out of town so that there is some trouble in sending & calling for them; (I went personally last time, & there are no other likenesses of my great grandfather extant.)" GEORGIA 38. William Few, Emmet 9518, inscribed "Etched by Albert Rosenthal Phila. 1888." He also painted a portrait "after John Ramage," for Independence Hall. They are identical. 39. Abraham Baldwin, Emmet 9520, inscribed "Etched by Albert Rosenthal Phila. 1888." There is also a painting "after Fulton" in Independence Hall. They are of the same type but not exactly alike, yet likely from the same original. The variations may be just artist's vagaries. There is no information in the Emmet correspondence. 40. William Jackson, Secretary, Emmet 9436, inscribed "Etched by Albert Rosenthal Phila. 1888 after Painting by J. Trumbull." Rosenthal also painted a copy after Trumbull for Independence Hall. They are identical. INDEX A Adams, John, on American Peace Commission, 9 et seq.; personal characteristics, 10; negotiates commerical treaty with the Netherlands, 11; on fisheries question, 13-14; on settlement of commercial indebtedness, 14-15; on granting compensation to Loyalists, 20; complains of trade restriction for New England, 26. Adams, Samuel, and the Constitution, 151, 152. Albany Congress (1754), 49, 50. Annapolis Trade Convention (1786), 100-106. Anti-Federalist party, 147. Articles of Confederation, adoption (1777), 49-50; ratification (1781), 50, 57-59; based on Franklin's plan of Union, 51-52; provisions, 52-54, 67-68, 86, 100; questions of land ownership delay ratification, 56-57, 58; financial power of Congress under, 86; failure of Commercial amendment of 1784, 99; relation of Constitution, 125, 131, 144; defects corrected in Constitution, 142; attempt at revision, 144-145; text, 175-189. Assenisipia, 69. B Bancroft, George, History of the Formation of the Constitution, cited, 103 (note). Biddle, Charles, Autobiography, on the Constitution, 141. Bowdoin, James, Governor of Massachusetts, and Shays' Rebellion, 94, 95. Bryce, Lord, cited, 13 (note). C Cambridge (Mass.), Shays' Rebellion at, 94. Canada, Loyalists go to, 19; Articles of Confederation on admitting, 67. Channing, Edward, History of the United States, cited, 21 (note), 61 (note). Cherronesus, 69. Combe, George, Tour of the United States, quoted, 45. Commerce, before Revolution, 24; conditions after Revolution, 24-27; commercial treaties, 26; development of trade with Far East, 28; phases of United States foreign trade, 28-29; domestic trade, 29-30; policy of reprisal, 97-99. Committees of Correspondence, 49. Confederation, the, 35 et seq., 108; see also Articles of Confederation. Congress, Continental, advises States to adopt governments, 38; prints constitutions, 41; Declaration of Independence, 49, 63, 143-144, 167-174; Articles of Confederation, 49-50, 51, see also Articles of Confederation; Franklin's plan of union, 50-51; composition, 85; financial problems, 85-86. Congress, Federal, 52-53; powers and duties, 53-54; and Northwest Territory, 62; national system of coinage, 63-64; Land Ordinance (1785), 64-66, 71; Jefferson's Ordinance of 1784, 69-71, 75; Ordinance of 1787, 72-80, 190-200; inefficiency, 81-84, 127; Revenue Amendment, 87; financial crisis, 87-88; commercial amendment of 1784, 98-99; calls Federal Convention, 106; reception of Constitution, 145-146; votes that presidential electors be chosen (1788), 63. Congress, United States, Constitutional powers and limitations, 127-129, 130, 131, 136; objection to excessive power of, 161; revenue act (1789), 159. Connecticut, State government, 44; ratification of Constitution, 149-150. Constitution, development of, 108 et seq., 125 et seq.; great compromise of, 121-123, 127; transmitted to Congress, 145-146; contest over ratification, 146 et seq.; framed by propertied interests, 162-163; text, 201-218; bibliography, 221-222. Cook, Captain James, 28. Cornwallis, General Edward, surrender at Yorktown (1781), 5. Crevècœur, letter to Jefferson, 165. Cutler, Manasseh, 73-74. D Day, Clive, Encyclopedia of American Government, cited, 26 (note). Declaration of Independence, adopted, 49; Jefferson drafts, 63; charges against the King, 143-144; text, 167-174. Delaware, and western land policy, 57; Annapolis Trade Convention, 100; ratification of Constitution, 149. Dickerson, Senator, of New Jersey, quoted, 78. Dickerson, John, chairman of committee to prepare Articles of Confederation, 49, 51, 114; against centralized government, 114; District of Columbia, fear of a fortified stronghold, 161. Duer, Colonel William, 74. Dunn, J. P., Jr., Indiana: A Redemption from Slavery, quoted, 71. Dunning, W. A., The British Empire and the United States, cited, 13 (note). E Elliot's Debates on the Federal Constitution, cited, 160 (note). Ellsworth, Oliver, delegate to the Federal Convention, 115, 124; on slavery, 130; report on Rhode Island's ratification of the Constitution, 159. England, see Great Britain. Executive, see president. F Federal Convention, 106-107, 108 et seq.; Records, cited, 30 (note). Federalist, The, 157. Federalist party, 147. Finance, question of settlement of debts, 14-15, 147-148; conditions of currency, 31-32; national system of coinage, 63-64; Revenue Amendment, 87; financial crisis, 87-88; revenue act (1789), 159. Fish, C. R., American Diplomacy, quoted, 27. Fisheries, 13-14, 25. Fiske, John, The Critical Period of American History, quoted, 81. France, attitude toward United States, 4-5; relationship of United States with, 6-8; treaty with United States (1778), 7; excludes United States shipping, 26-27. Franklin, Benjamin, authorized to negotiate consular convention with France, 5; on Peace Commission, 8-9, 11-12, 21; personal characteristics, 9; on settlement of debts, 14; Albany plan, 50; presents plan of Union to Continental Congress (1775), 50-52; in Federal Convention, 113, 120; on the new republic, 134-135; personal charge against, 161; bibliography, 222. French and Indian War, effect on settlement, 56. G Georgia, ratification of Constitution, 149. Germany, American missionary societies, 3. Gerry, Elbridge, 115, 132, 135. Gorham, Nathaniel, 113-114, 124. Grayson, William, of Virginia, 64; quoted, 76-77. Great Britain, attitude toward former colonies, 3; American missionary societies, 3; admits independence of colonies, 6; France and, 7; Spain and, 7; and United States boundary lines, 12-13; and fisheries, 13-14; relation to American trade, 24-28, 97-98; compact theory of government in, 39; military posts retained by, 84-85. Grinsby, H. B., quoted, 15-16. H Hamilton, Alexander, at Annapolis Trade Convention, 104, 105; personal characteristics, 104-105; at Federal Convention, 115-116, 120; on Committee to revise constitution, 140; and The Federalist, 156-157; influence in New York convention, 157; bibliography, 222. Hancock, John, 150, 151-152. Henry, Prince, of Prussia, approached on subject of becoming king of United States, 134. Henry Patrick, 61, 63, 155. Hopkinson, letter to Jefferson, 161. Hutchins, Thomas, Geographer of the United States, 64. I Illinoia, 69. Illinois admitted as State (1818), 79. Independent Gazetteer, The, 156. Indian Queen Tavern, delegates to Federal Convention at, 109. Indiana admitted as a State (1816), 79. J Jameson, J. F., quoted, 59-60. Jay, John, on reciprocity of consular convention with France, 5; Peace Commissioner, 10, 11; personal characteristics, 10-11; sent to Spain, 11; on settlement of debts, 15; on compensation to Loyalists, 20; and The Federalist, 156-157. Jefferson, Ferdinand, quoted, 174 (note). Jefferson, Thomas, on Peace Commission, 10; and land policy, 62-64; life and characteristics, 62-63; Ordinance of 1784, 67, 69-71, 75; on value of Continental scrip, 88-89; opinion of Federal Convention, 109, 116; spokesman for colonies, 143; on ratification of Constitution, 152; Hopkinson's letter to, 161; Crèvocœur's letter to, 165; bibliography, 222. Jefferson's Ordinance of 1784, see Ordinance of 1784. Jennifer, Daniel of St. Thomas, 153-154. Johnson, Dr., W. S., 115, 140. Judiciary, 131-133. K Kames, Lord, Franklin corresponds with, 6. Kent, Chancellor, 61. Kercheval, Samuel, History of the Valley of Virginia, quoted, 33-34. King, Rufus, in Federal Convention, 113, 132, 140; on three-fifths rule, 122; on form of executive, 134. Knox, Henry, 61. L Lafayette, Marquis de, Washington's letter to, 164-165. La Luzerne, Chevalier de, French minister in Philadelphia, 7. Land, question of ownership of western, 56-57; cession to United States by States, 58-59; American interest in, 59-62; Jefferson and land policy, 62-64; plan for sale under Ordinance of 1785, 65-66. Land Ordinance of 1785, 64-65, 71. Lansing, John, 116. Laurens, Henry, 10. Lecky, W. E. H., The American Revolution, cited, 32 (note). Lincoln, General Benjamin, and Shays' Rebellion, 94; letter to Washington, 152-153. Lingelbach, W. E., cited, 3 (note). Loyalists, question of compensation of, 16-17, 19-20; groups comprising, 17; treatment of, 18-19; Commissioners agree to restitution, 20. M McMaster, J. B., History of the People of the United States, quoted, 31; Acquisition of Industrial, Popular, and Political Rights of Man in America, quoted, 45. Madison, James, describes trade situation, 30; on violation of federal authority by Virginia, 100-101; personal characteristics; 103-104; and Annapolis Trade Convention, 104; quoted, 108; Washington, and, 111; for strong central government, 115; in Federal Convention, 111, 132, 140; supports Constitution, 155; and The Federalist, 156-157. Martin, Luther, 116, 132, 153. Maryland, and land claims, 57, 58; suggestion as to power of Congress over western land, 68; agreement with Virginia, 100, 104; ratification of Constitution, 153-154. Mason, George, 112, 132, 155. Massachusetts, State Constitution submitted to people for approval, 46; Shays' Rebellion (1786), 91-96; ratification of constitution, 150-153. Mayflower Compact, 140. Metropotamia, 69. Michigania, 69. Mississippi River, right of navigation declared, 14. Monroe, James, invests in western land, 61; Grayson writes to, 76. Morris, Gouverneur, invests in western land, 61; quoted, 108, 140; in Federal Convention, 112-113, 132, 140; and Washington, 113 (note). Morris, Robert, invests in western land, 61. N Navigation Acts, 24, 27. Netherlands, the, commerical treaty with, 11. New England, prosperity due to commerce, 24; effect of trade restrictions on, 26; "plantation covenants", 40; system of land grant, 65; interest in trade, 97; favors navigation acts, 129. New England Confederation (1643), 48. New Hampshire, Vermont withdraws from New York and, 68; and Federal Convention, 106-107; ratification of Constitution, 154-155, 157. New Jersey, ratification of Constitution, 149. New Jersey Plan, 118, 119, 121, 125-126. New York cession of western land claims to United States, 58, 59; Vermont, withdraws from New Hampshire and, 68; refuses to accede to Revenue Amendment, 88; ratification of Constitution, 150, 156-158. New York City chosen as seat of government, 163. Newburg on the Hudson, mutinous Revolutionary soldiers at, 81-82. Newfoundland, fisheries, 13. North Carolina, ratification of constitution, 158. Northwest Ordinance, 55 et seq.; see also Land Ordinance of 1785, Ordinance of 1784, Ordinance of 1787. Northwest Territory, settlement, 55-56; States relinquish claims, 57-59; question of land sale and government, 62 et seq. O Ohio admitted as State (1802), 78. Ohio Company of Associates, 72. Ordinance of 1784, 67, 69-71, 75. Ordinance of 1785, see Land Ordinance of 1785. Ordinance of 1787, Congress adopts, 72; stimulus from Ohio Company, 72-74; authorship, 75; provisions, 75-77; successful operation, 77-80; text, 190-200. Oregon, question of military occupation (1825), 77-78. Otto, Louis, French Chargé d'Affaires, letter to Vergennes, 100-103. P Panic of 1785, 30-31. Patterson, William, against plan of centralized government, 114. Pelisipia, 69. Pennsylvania, invited to form commercial policy with other States, 100; ratification of Constitution, 148-149. Philadelphia, enthusiasm for Constitution in, 148-149. Philadelphia Convention, see Federal Convention. Pilgrim Fathers, Mayflower Compact, 40. Pinckney, Charles, 114, 126. Pinckney, General C. C, 114. Political parties, 146-147; see also names of parties. Polypotamia, 69. Pontiac's Conspiracy, effect on settlement, 56. Potomac River, agreement between Virginia and Maryland regarding, 100. President, creation of office, 133-134; President modeled after State governorships, 134; election of, 136-137; third term, 137-138; powers, 138; Washington chosen as first, 138-139. Princeton, Congress flees to, 84. Proclamation of 1763, 56, 57. R Randolph, Edmund, 112, 124; quoted 134. Read, W. T., Life and Correspondence of George Read, quoted, 113 (note). "Revolution of 1789," 144. Revolutionary War, effect on American people, 22; economic conditions after, 23 et seq. Rhode Island, State government, 44; and question of western land ownership, 57; rejects tariff provision (1782), 86; currency trouble (1786), 89-90; attitude toward Shays' Rebellion, 95; recognition of bad trade conditions, 96; and Federal Convention, 106; ratification of Constitution, 158, 159. Roads, see Transportation. Rousseau, J. J., Contrat Social, 39-40. Russia, trade with, 28. Rutledge, John, 114, 124, 125. S St. Clair, General Arthur, Cutler endorses for governorship of New York, 74. Saratoga, 69. Scioto Associates, 74. Shays, Daniel, 94. Shays' Rebellion (1786), 91-96. Sherman, Roger, 115. Slavery, Ordinance of 1784 on, 70; Ordinance of 1787 on, 76-77; counting of slaves in enumerating population, 121-122; attitude of Federal Convention delegates toward, 130. Slave trade, compromise concerning, 129-130. South, system of land grant, 65; need for slaves, 129. South Carolina, class control in, 45; ratification of constitution, 154. Spain, France and, 7-8; and United States, 8; possessions in America, 8; Jay sent to, 11; excludes United States shipping, 26. Stamp Act Congress (1765), 49. Stark, J. H., quoted, 18-19. State governments, establishment of, 38; constitutions, 41-43; identical with colonial, 44; aristocratic tendencies, 44-45, 47-48; democratic tendencies, 46-47, 48. Steiner, B. C., Connecticut's Ratification of the State Constitution, quoted, 159-160. Suffrage, 36-37, 45. Supreme Court established, 131; see also Judiciary. Sylvania, 69. T Thieriot, Saxon Commissioner of Commerce to America, quoted, 3, 4-5. Tory party, 146. Transportation, 29-30; see also, Commerce. Treaty of Peace (1783), 1 et seq.; ratified, 21; determines boundaries, 12-13, 56; bibliography of diplomatic history connected with, 56. Trevett vs. Weeden (1786), 90-91. Tuckerman, Henry, America and her Commentators, cited, 33 (note). U United Empire Loyalists, 19. United States, named, 1; status as new republic, 1-5; population, 2-3, 35, 55-56; boundaries, 12-13, 56; economic conditions after Revolution, 23 et seq.; commercial treaties, 26; aristocratic control in, 36, 44-45; suffrage after the Revolution, 36-37; political genius in, 37-38; see also names of States, States governments. V Vergennes, Comte de, French Minister, Franklin and, 21; Otto's letter to, 101-103. Vermont, withdraws from New York and New Hampshire, 68; attitude in Shays' Rebellion, 95. Vincennes, effect of Ordinance of 1784 on, 71. Virginia, abolishes primogeniture, 46; cession of western claims to United States, 58, 59, 62; agreement with Maryland, 100; Annapolis Trade Convention, 100-101, 103-104; ratification of Constitution, 150, 155-156, 157. Virginia Resolutions, see Virginia Plan. W Warden, John, Gringsby's story of, 15-16. Warville, Brissot de, quoted, 32-33. Washington, George, invests in western land, 61; influence over disaffected soldiers, 82-83; in Federal Convention, 110-111; and Madison, 111; and Morris, 113 (note); chosen as President, 139; Lincoln's letter to, 152-153; supports Constitution, 155; personal charge against, 161; letter to Lafayette, 164-165; inauguration, 166. Washington, name given division of Northwest Territory, 69. Webster, Daniel, on Ordinance of 1787, 79-80. West Indies, trade, with, 23, 27, 97. Whig Party, 146-147. Wilson, James, 61, 108, 112, 115, 124, 132. Wythe, George, 63, 112. Y Yates, Robert, 115. The Chronicles of America Series 1. The Red Man's Continent by Ellsworth Huntington 2. The Spanish Conquerors by Irving Berdine Richman 3. Elizabethan Sea-Dogs by William Charles Henry Wood 4. The Crusaders of New France by William Bennett Munro 5. Pioneers of the Old South by Mary Johnson 6. The Fathers of New England by Charles McLean Andrews 7. Dutch and English on the Hudson by Maud Wilder Goodwin 8. The Quaker Colonies by Sydney George Fisher 9. Colonial Folkways by Charles McLean Andrews 10. The Conquest of New France by George McKinnon Wrong 11. The Eve of the Revolution by Carl Lotus Becker 12. Washington and His Comrades in Arms by George McKinnon Wrong 13. The Fathers of the Constitution by Max Farrand 14. Washington and His Colleagues by Henry Jones Ford 15. Jefferson and his Colleagues by Allen Johnson 16. John Marshall and the Constitution by Edward Samuel Corwin 17. The Fight for a Free Sea by Ralph Delahaye Paine 18. Pioneers of the Old Southwest by Constance Lindsay Skinner 19. The Old Northwest by Frederic Austin Ogg 20. The Reign of Andrew Jackson by Frederic Austin Ogg 21. The Paths of Inland Commerce by Archer Butler Hulbert 22. Adventurers of Oregon by Constance Lindsay Skinner 23. The Spanish Borderlands by Herbert E. Bolton 24. Texas and the Mexican War by Nathaniel Wright Stephenson 25. The Forty-Niners by Stewart Edward White 26. The Passing of the Frontier by Emerson Hough 27. The Cotton Kingdom by William E. Dodd 28. The Anti-Slavery Crusade by Jesse Macy 29. Abraham Lincoln and the Union by Nathaniel Wright Stephenson 30. The Day of the Confederacy by Nathaniel Wright Stephenson 31. Captains of the Civil War by William Charles Henry Wood 32. The Sequel of Appomattox by Walter Lynwood Fleming 33. The American Spirit in Education by Edwin E. Slosson 34. The American Spirit in Literature by Bliss Perry 35. Our Foreigners by Samuel Peter Orth 36. The Old Merchant Marine by Ralph Delahaye Paine 37. The Age of Invention by Holland Thompson 38. The Railroad Builders by John Moody 39. The Age of Big Business by Burton Jesse Hendrick 40. The Armies of Labor by Samuel Peter Orth 41. The Masters of Capital by John Moody 42. The New South by Holland Thompson 43. The Boss and the Machine by Samuel Peter Orth 44. The Cleveland Era by Henry Jones Ford 45. The Agrarian Crusade by Solon Justus Buck 46. The Path of Empire by Carl Russell Fish 47. Theodore Roosevelt and His Times by Harold Howland 48. Woodrow Wilson and the World War by Charles Seymour 49. The Canadian Dominion by Oscar D. Skelton 50. The Hispanic Nations of the New World by William R. Shepherd Transcriber's Note This e-book was transcribed from the Abraham Lincoln Edition of The Fathers of the Constitution by Max Farrand. The Table of Contents in the book did not break down the 4 great American source documents in the Appendix--but users of the e-book can navigate directly to one of these four documents from the Contents. The documents were produced as typed in the paper book, with the exception of the signers of the document. The book had two signatures per line; we used one signature per line to allow for better formatting across e-book presentations. We transcribed the left column first, from top to bottom, and then the right column in the same manner. No other amendments were intentionally made to these four documents, which are facsimiles of the actual documents as supervised by author and noted constitutional historian Max Farrand. Obvious errors in the rest of the text have been corrected, and are listed below: Page 53: Remove period after United States because the sentence continues with 'under their direction."' on Page 54. 
2053	----	THE AMERICAN REPUBLIC: ITS CONSTITUTION, TENDENCIES, AND DESTINY. BY O. A. BROWNSON, LL. D. NEW YORK: P. O'SHEA, 104 BLEECKER STREET. 1866. Entered according to Act of Congress, In the year 1865, By P. O'SHEA, In the Clerk's office of the District Court of the United States for the Southern District of New York. TO THE HON. GEORGE BANCROFT, THE ERUDITE, PHILOSOPHICAL, AND ELOQUENT Historian of the United States, THIS FEEBLE ATTEMPT TO SET FORTH THE PRINCIPLES OF GOVERNMENT, AND TO EXPLAIN AND DEFEND THE CONSTITUTION OF THE AMERICAN REPUBLIC, IS RESPECTFULLY DEDICATED, IN MEMORY OF OLD FRIENDSHIP, AND AS A SLIGHT HOMAGE TO GENIUS, ABILITY, PATRIOTISM, PRIVATE WORTH, AND PUBLIC SERVICE, BY THE AUTHOR. CONTENTS. PAGE CHAPTER I. INTRODUCTION 1 CHAPTER II. GOVERNMENT 15 CHAPTER III. ORIGIN OF GOVERNMENT 26 CHAPTER IV. ORIGIN OF GOVERNMENT--Continued 43 CHAPTER V. ORIGIN OF GOVERNMENT--Continued 71 CHAPTER VI. ORIGIN OF GOVERNMENT--Concluded 106 CHAPTER VII. CONSTITUTION OF GOVERNMENT 136 CHAPTER VIII. CONSTITUTION OF GOVERNMENT--Concluded 166 CHAPTER IX. THE UNITED STATES 192 CHAPTER X. CONSTITUTION OF THE UNITED STATES 218 CHAPTER XI. THE CONSTITUTION--Continued 244 CHAPTER XII. SECESSION 277 CHAPTER XIII. RECONSTRUCTION 309 CHAPTER XIV. POLITICAL TENDENCIES 348 CHAPTER XV. DESTINY--POLITICAL AND RELIGIOUS 392 PREFACE. In the volume which, with much diffidence, is here offered to the public, I have given, as far as I have considered it worth giving, my whole thought in a connected form on the nature, necessity, extent, authority, origin, ground, and constitution of government, and the unity, nationality, constitution, tendencies, and destiny of the American Republic. Many of the points treated have been from time to time discussed or touched upon, and many of the views have been presented, in my previous writings; but this work is newly and independently written from beginning to end, and is as complete on the topics treated as I have been able to make it. I have taken nothing bodily from my previous essays, but I have used their thoughts as far as I have judged them sound and they came within the scope of my present work. I have not felt myself bound to adhere to my own past thoughts or expressions any farther than they coincide with my present convictions, and I have written as freely and as independently as if I had never written or published any thing before. I have never been the slave of my own past, and truth has always been dearer to me than my own opinions. This work is not only my latest, but will be my last on politics or government, and must be taken as the authentic, and the only authentic statement of my political views and convictions, and whatever in any of my previous writings conflicts with the principles defended in its pages, must be regarded as retracted, and rejected. The work now produced is based on scientific principles; but it is an essay rather than a scientific treatise, and even good-natured critics will, no doubt, pronounce it an article or a series of articles designed for a review, rather than a book. It is hard to overcome the habits of a lifetime. I have taken some pains to exchange the reviewer for the author, but am fully conscious that I have not succeeded. My work can lay claim to very little artistic merit. It is full of repetitions; the same thought is frequently recurring,--the result, to some extent, no doubt, of carelessness and the want of artistic skill; but to a greater extent, I fear, of "malice aforethought." In composing my work I have followed, rather than directed, the course of my thought, and, having very little confidence in the memory or industry of readers, I have preferred, when the completeness of the argument required it, to repeat myself to encumbering my pages with perpetual references to what has gone before. That I attach some value to this work is evident from my consenting to its publication; but how much or how little of it is really mine, I am quite unable to say. I have, from my youth up, been reading, observing, thinking, reflecting, talking, I had almost said writing, at least by fits and starts, on political subjects, especially in their connection with philosophy, theology, history, and social progress, and have assimilated to my own mind what it would assimilate, without keeping any notes of the sources whence the materials assimilated were derived. I have written freely from my own mind as I find it now formed; but how it has been so formed, or whence I have borrowed, my readers know as well as I. All that is valuable in the thoughts set forth, it is safe to assume has been appropriated from others. Where I have been distinctly conscious of borrowing what has not become common property, I have given credit, or, at least, mentioned the author's name, with three important exceptions which I wish to note more formally. I am principally indebted for the view of the American nationality and the Federal Constitution I present, to hints and suggestions furnished by the remarkable work of John C. Hurd, Esq., on The Law of Freedom and Bondage in the United States, a work of rare learning and profound philosophic views. I could not have written my work without the aid derived from its suggestions, any more than I could without Plato, Aristotle, St. Augustine, St. Thomas, Suarez, Pierre Leroux, and the Abbate Gioberti. To these two last-named authors, one a humanitarian sophist, the other a Catholic priest, and certainly one of the profoundest philosophical writers of this century, I am much indebted, though I have followed the political system of neither. I have taken from Leroux the germs of the doctrine I set forth on the solidarity of the race, and from Gioberti the doctrine I defend in relation to the creative act, which is, after all, simply that of the Credo and the first verse of Genesis. In treating the several questions which the preparation of this volume has brought up, in their connection, and in the light of first principles, I have changed or modified, on more than one important point, the views I had expressed in my previous writings, especially on the distinction between civilized and barbaric nations, the real basis of civilization itself, and the value to the world of the Graeco-Roman civilization. I have ranked feudalism under the head of barbarism, rejected every species of political aristocracy, and represented the English constitution as essentially antagonistic to the American, not as its type. I have accepted universal suffrage in principle, and defended American democracy, which I define to be territorial democracy, and carefully distinguish from pure individualism on the one hand, and from pure socialism or humanitarianism on the other. I reject the doctrine of State sovereignty, which I held and defended from 1828 to 1861, but still maintain that the sovereignty of the American Republic vests in the States, though in the States collectively, or united, not severally, and thus escape alike consolidation and disintegration. I find, with Mr. Madison, our most philosophic statesman, the originality of the American system in the division of powers between a General government having sole charge of the foreign and general, and particular or State governments having, within their respective territories, sole charge of the particular relations and interests of the American people; but I do not accept his concession that this division is of conventional origin, and maintain that it enters into the original Providential constitution of the American state, as I have done in my Review for October, 1863, and January and October, 1864. I maintain, after Mr. Senator Sumner, one of the most philosophic and accomplished living American statesmen, that "State secession is State suicide," but modify the opinion I too hastily expressed that the political death of a State dissolves civil society within its territory and abrogates all rights held under it, and accept the doctrine that the laws in force at the time of secession remain in force till superseded or abrogated by competent authority, and also that, till the State is revived and restored as a State in the Union, the only authority, under the American system, competent to supersede or abrogate them is the United States, not Congress, far less the Executive. The error of the Government is not in recognizing the territorial laws as surviving secession but in counting a State that has seceded as still a State in the Union, with the right to be counted as one of the United States in amending the Constitution. Such State goes out of the Union, but comes under it. I have endeavored throughout to refer my particular political views; to their general principles, and to show that the general principles asserted have their origin and ground in the great, universal, and unchanging principles of the universe itself. Hence, I have labored to show the scientific relations of political to theological principles, the real principles of all science, as of all reality. An atheist, I have said, may be a politician; but if there were no God, there could be no politics. This may offend the sciolists of the age, but I must follow science where it leads, and cannot be arrested by those who mistake their darkness for light. I write throughout as a Christian, because I am a Christian; as a Catholic, because all Christian principles, nay, all real principles are catholic, and there is nothing sectarian either in nature or revelation. I am a Catholic by God's grace and great goodness, and must write as I am. I could not write otherwise if I would, and would not if I could. I have not obtruded my religion, and have referred to it only where my argument demanded it; but I have had neither the weakness nor the bad taste to seek to conceal or disguise it. I could never have written my book without the knowledge I have, as a Catholic, of Catholic theology, and my acquaintance, slight as it is, with the great fathers and doctors of the church, the great masters of all that is solid or permanent in modern thought, either with Catholics or non-Catholics. Moreover, though I write for all Americans, without distinction of sect or party, I have had more especially in view the people of my own religious communion. It is no discredit to a man in the United States at the present day to be a firm, sincere, and devout Catholic. The old sectarian prejudice may remain with a few, "whose eyes," as Emerson says, "are in their hind-head, not in their fore-head;" but the American people are not at heart sectarian, and the nothingarianism so prevalent among them only marks their state of transition from sectarian opinions to positive Catholic faith. At any rate, it can no longer be denied that Catholics are an integral, living, and growing element in the American population, quite too numerous, too wealthy, and too influential to be ignored. They have played too conspicuous a part in the late troubles of the country, and poured out too freely and too much of their richest and noblest blood in defence of the unity of the nation and the integrity of its domain, for that. Catholics henceforth must be treated as standing, in all respects, on a footing of equality with any other class of American citizens, and their views of political science, or of any other science, be counted of equal importance, and listened to with equal attention. I have no fears that my book will be neglected because avowedly by a Catholic author, and from a Catholic publishing house. They who are not Catholics will read it, and it will enter into the current of American literature, if it is one they must read in order to be up with the living and growing thought of the age. If it is not a book of that sort, it is not worth reading by any one. Furthermore, I am ambitious, even in my old age, and I wish to exert an influence on the future of my country, for which I have made, or, rather, my family have made, some sacrifices, and which I tenderly love. Now, I believe that he who can exert the most influence on our Catholic population, especially in giving tone and direction to our Catholic youth, will exert the most influence in forming the character and shaping the future destiny of the American Republic. Ambition and patriotism alike, as well as my own Catholic faith and sympathies, induce me to address myself primarily to Catholics. I quarrel with none of the sects; I honor virtue wherever I see it, and accept truth wherever I find it; but, in my belief, no sect is destined to a long life, or a permanent possession. I engage in no controversy with any one not of my religion, for, if the positive, affirmative truth is brought out and placed in a clear light before the public, whatever is sectarian in any of the sects will disappear as the morning mists before the rising sun. I expect the most intelligent and satisfactory appreciation of my book from the thinking and educated classes among Catholics; but I speak to my countrymen at large. I could not personally serve my country in the field: my habits as well as my infirmities prevented, to say nothing of my age; but I have endeavored in this humble work to add my contribution, small though it may be, to political science, and to discharge, as far as I am able, my debt of loyalty and patriotism. I would the book were more of a book, more worthy of my countrymen, and a more weighty proof of the love I beat them, and with which I have written it. All I can say is, that it is an honest book, a sincere book, and contains my best thoughts on the subjects treated. If well received, I shall be grateful; if neglected, I shall endeavor to practise resignation, as I have so often done. O. A. BROWNSON. ELIZABETH, N. J., September 16, 1865. CHAPTER I INTRODUCTION The ancients summed up the whole of human wisdom in the maxim, Know Thyself, and certainly there is for an individual no more important as there is no more difficult knowledge, than knowledge of himself, whence he comes, whither he goes, what he is, what he is for, what he can do, what he ought to do, and what are his means of doing it. Nations are only individuals on a larger scale. They have a life, an individuality, a reason, a conscience, and instincts of their own, and have the same general laws of development and growth, and, perhaps, of decay, as the individual man. Equally important, and no less difficult than for the individual, is it for a nation to know itself, understand its own existence, its own powers and faculties, rights and duties, constitution, instincts, tendencies, and destiny. A nation has a spiritual as well as a material, a moral as well as a physical existence, and is subjected to internal as well as external conditions of health and virtue, greatness and grandeur, which it must in some measure understand and observe, or become weak and infirm, stunted in its growth, and end in premature decay and death. Among nations, no one has more need of full knowledge of itself than the United States, and no one has hitherto had less. It has hardly had a distinct consciousness of its own national existence, and has lived the irreflective life of the child, with no severe trial, till the recent rebellion, to throw it back on itself and compel it to reflect on its own constitution, its own separate existence, individuality, tendencies, and end. The defection of the slaveholding States, and the fearful struggle that has followed for national unity and integrity, have brought it at once to a distinct recognition of itself, and forced it to pass from thoughtless, careless, heedless, reckless adolescence to grave and reflecting manhood. The nation has been suddenly compelled to study itself, and henceforth must act from reflection, understanding, science, statesmanship, not from instinct, impulse, passion, or caprice, knowing well what it does, and wherefore it does it. The change which four years of civil war have wrought in the nation is great, and is sure to give it the seriousness, the gravity, the dignity, the manliness it has heretofore lacked. Though the nation has been brought to a consciousness of its own existence, it has not, even yet, attained to a full and clear understanding of its own national constitution. Its vision is still obscured by the floating mists of its earlier morning, and its judgment rendered indistinct and indecisive by the wild theories and fancies of its childhood. The national mind has been quickened, the national heart has been opened, the national disposition prepared, but there remains the important work of dissipating the mists that still linger, of brushing away these wild theories and fancies, and of enabling it to form a clear and intelligent judgment of itself, and a true and just appreciation of its own constitution tendencies,--and destiny; or, in other words, of enabling the nation to understand its own idea, and the means of its actualization in space and time. Every living nation has an idea given it by Providence to realize, and whose realization is its special work, mission, or destiny. Every nation is, in some sense, a chosen people of God. The Jews were the chosen people of God, through whom the primitive traditions were to be preserved in their purity and integrity, and the Messiah was to come. The Greeks were the chosen people of God, for the development and realization of the beautiful or the divine splendor in art, and of the true in science and philosophy; and the Romans, for the development of the state, law, and jurisprudence. The great despotic nations of Asia were never properly nations; or if they were nations with a mission, they proved false to it--, and count for nothing in the progressive development of the human race. History has not recorded their mission, and as far as they are known they have contributed only to the abnormal development or corruption of religion and civilization. Despotism is barbaric and abnormal. The United States, or the American Republic, has a mission, and is chosen of God for the realization of a great idea. It has been chosen not only to continue the work assigned to Greece and Rome, but to accomplish a greater work than was assigned to either. In art, it will prove false to its mission if it do not rival Greece; and in science and philosophy, if it do not surpass it. In the state, in law, in jurisprudence, it must continue and surpass Rome. Its idea is liberty, indeed, but liberty with law, and law with liberty. Yet its mission is not so much the realization of liberty as the realization of the true idea of the state, which secures at once the authority of the public and the freedom of the individual--the sovereignty of the people without social despotism, and individual freedom without anarchy. In other words, its mission is to bring out in its life the dialectic union of authority and liberty, of the natural rights of man and those of society. The Greek and Roman republics asserted the state to the detriment of individual freedom; modern republics either do the same, or assert individual freedom to the detriment of the state. The American republic has been instituted by Providence to realize the freedom of each with advantage to the other. The real mission of the United States is to introduce and establish a political constitution, which, while it retains all the advantages of the constitutions of states thus far known, is unlike any of them, and secures advantages which none of them did or could possess. The American constitution has no prototype in any prior constitution. The American form of government can be classed throughout with none of the forms of government described by Aristotle, or even by later authorities. Aristotle knew only four forms of government: Monarchy, Aristocracy, Democracy, and Mixed Governments. The American form is none of these, nor any combination of them. It is original, a new contribution to political science, and seeks to attain the end of all wise and just government by means unknown or forbidden to the ancients, and which have been but imperfectly comprehended even by American political writers themselves. The originality of the American constitution has been overlooked by the great majority even of our own statesmen, who seek to explain it by analogies borrowed from the constitutions of other states rather than by a profound study of its own principles. They have taken too low a view of it, and have rarely, if ever, appreciated its distinctive and peculiar merits. As the United States have vindicated their national unity and integrity, and are preparing to take a new start in history, nothing is more important than that they should take that new start with a clear and definite view of their national constitution, and with a distinct understanding of their political mission in the future of the world. The citizen who can help his countrymen to do this will render them an important service and deserve well of his country, though he may have been unable to serve in her armies and defend her on the battle-field. The work now to be done by American statesmen is even more difficult and more delicate than that which has been accomplished by our brave armies. As yet the people are hardly better prepared for the political work to be done than they were at the outbreak of the civil war for the military work they have so nobly achieved. But, with time, patience, and good-will, the difficulties may be overcome, the errors of the past corrected, and the Government placed on the right track for the future. It will hardly be questioned that either the constitution of the United States is very defective or it has been very grossly misinterpreted by all parties. If the slave States had not held that the States are severally sovereign, and the Constitution of the United States a simple agreement or compact, they would never have seceded; and if the Free States had not confounded the Union with the General government, and shown a tendency to make it the entire national government, no occasion or pretext for secession would have been given. The great problem of our statesmen has been from the first, How to assert union without consolidation, and State rights without disintegration? Have they, as yet, solved that problem? The war has silenced the State sovereignty doctrine, indeed, but has it done so without lesion to State rights? Has it done it without asserting the General government as the supreme, central, or national government? Has it done it without striking a dangerous blow at the federal element of the constitution? In suppressing by armed force the doctrine that the States are severally sovereign, what barrier is left against consolidation? Has not one danger been removed only to give place to another? But perhaps the constitution itself, if rightly understood, solves the problem; and perhaps the problem itself is raised precisely through misunderstanding of the constitution. Our statesmen have recognized no constitution of the American people themselves; they have confined their views to the written constitution, as if that constituted the American people a state or nation, instead of being, as it is, only a law ordained by the nation already existing and constituted. Perhaps, if they had recognized and studied the constitution which preceded that drawn up by the Convention of 1787, and which is intrinsic, inherent in the republic itself, they would have seen that it solves the problem, and asserts national unity without consolidation, and the rights of the several States without danger of disintegration. The whole controversy, possibly, has originated in a misunderstanding of the real constitution of the United States, and that misunderstanding itself in the misunderstanding of the origin and constitution of government in general. The constitution, as will appear in the course of this essay is not defective; and all that is necessary to guard against either danger is to discard all our theories of the constitution, and return and adhere to the constitution itself, as it really is and always has been. There is no doubt that the question of Slavery had much to do with the rebellion, but it was not its sole cause. The real cause must be sought in the program that had been made, especially in the States themselves, in forming and administering their respective governments, as well as the General government, in accordance with political theories borrowed from European speculators on government, the so-called Liberals and Revolutionists, which have and can have no legitimate application in the United States. The tendency of American politics, for the last thirty or forty years, has been, within the several States themselves, in the direction of centralized democracy, as if the American people had for their mission only the reproduction of ancient Athens. The American system is not that of any of the simple forms of government, nor any combination of them. The attempt to bring it under any of the simple or mixed forms of government recognized by political writers, is an attempt to clothe the future in the cast-off garments of the past. The American system, wherever practicable, is better than monarchy, better than aristocracy, better than simple democracy, better than any possible combination of these several forms, because it accords more nearly with the principles of things, the real order of the universe. But American statesmen have studied the constitutions of other states more than that of their own, and have succeeded in obscuring the American system in the minds of the people, and giving them in its place pure and simple democracy, which is its false development or corruption. Under the influence of this false development, the people were fast losing sight of the political truth that, though the people are sovereign, it is the organic, not the inorganic people, the territorial people, not the people as simple population, and were beginning to assert the absolute God-given right of the majority to govern. All the changes made in the bosom of the States themselves have consisted in removing all obstacles to the irresponsible will of the majority, leaving minorities and individuals at their mercy. This tendency to a centralized democracy had more to do with provoking secession and rebellion than the anti-slavery sentiments of the Northern, Central, and Western States. The failure of secession and the triumph of the National cause, in spite of the short-sightedness and blundering of the Administration, have proved the vitality and strength of the national constitution, and the greatness of the American people. They say nothing for or against the democratic theory of our demagogues, but every thing in favor of the American system or constitution of government, which has found a firmer support in American instincts than in American statesmanship. In spite of all that had been done by theorists, radicals, and revolutionists, no-government men, non-resistants, humanitarians, and sickly sentimentalists to corrupt the American people in mind, heart, and body, the native vigor of their national constitution has enabled them to come forth triumphant from the trial. Every American patriot has reason to be proud of his country-men, and every American lover of freedom to be satisfied with the institutions of his country. But there is danger that the politicians and demagogues will ascribe the merit, not to the real and living national constitution, but to their miserable theories of that constitution, and labor to aggravate the several evils and corrupt tendencies which caused the rebellion it has cost so much to suppress. What is now wanted is, that the people, whose instincts are right, should understand the American constitution as it is, and so understand it as to render it impossible for political theorists, no matter of what school or party, to deceive them again as to its real import, or induce them to depart from it in their political action. A work written with temper, without passion or sectional prejudice, in a philosophical spirit, explaining to the American people their own national constitution, and the mutual relations of the General government and the State governments, cannot, at this important crisis in our affairs, be inopportune, and, if properly executed, can hardly fail to be of real service. Such a work is now attempted--would it were by another and abler hand--which, imperfect as it is, may at least offer some useful suggestions, give a right direction to political thought, although it should fail to satisfy the mind of the reader. This much the author may say, in favor of his own work, that it sets forth no theory of government in general, or of the United States in particular. The author is not a monarchist, an aristocrat, a democrat, a feudalist, nor an advocate of what are called mixed governments like the English, at least for his own country; but is simply an American, devoted to the real, living, and energizing constitution of the American republic as it is, not as some may fancy it might be, or are striving to make it. It is, in his judgment, what it ought to be, and he has no other ambition than to present it as it is to the understanding and love of his countrymen. Perhaps simple artistic unity and propriety would require the author to commence his essay directly with the United States; but while the constitution of the United States is original and peculiar, the government of the United States has necessarily something in common with all legitimate governments, and he has thought it best to precede his discussion of the American republic, its constitution, tendencies, and destiny, by some considerations on government in general. He does this because he believes, whether rightly or not, that while the American people have received from Providence a most truly profound and admirable system of government, they are more or less infected with the false theories of government which have been broached during the last two centuries. In attempting to realize these theories, they have already provoked or rendered practicable a rebellion which has seriously threatened the national existence, and come very near putting an end to the American order of civilization itself. These theories have received already a shock in the minds of all serious and thinking men; but the men who think are in every nation a small minority, and it is necessary to give these theories a public refutation, and bring back those who do not think, as well as those who do, from the world of dreams to the world of reality. It is hoped, therefore, that any apparent want of artistic unity or symmetry in the essay will be pardoned for the sake of the end the author has had in view. CHAPTER II. GOVERNMENT. Man is a dependent being, and neither does nor can suffice for himself. He lives not in himself, but lives and moves and has his being in God. He exists, develops, and fulfils his existence only by communion with God, through which he participates of the divine being and life. He communes with God through the divine creative act and the Incarnation of the Word, through his kind, and through the material world. Communion with God through Creation and Incarnation is religion, distinctively taken, which binds man to God as his first cause, and carries him onward to God as his final cause; communion through the material world is expressed by the word property; and communion with God through humanity is society. Religion, society, property, are the three terms that embrace the whole of man's life, and express the essential means and conditions of his existence, his development, and his perfection, or the fulfilment of his existence, the attainment of the end for which he is created. Though society, or the communion of man with his Maker through his kind, is not all that man needs in order to live, to grow, to actualize the possibilities of his nature, and to attain to his beatitude, since humanity is neither God nor the material universe, it is yet a necessary and essential condition of his life, his progress, and the completion of his existence. He is born and lives in society, and can be born and live nowhere else. It is one of the necessities of his nature. "God saw that it was not good for man to be alone." Hence, wherever man is found he is found in society, living in more or less strict intercourse with his kind. But society never does and never can exist without government of some sort. As society is a necessity of man's nature, so is government a necessity of society. The simplest form of society is the family--Adam and Eve. But though Adam and Eve are in many respects equal, and have equally important though different parts assigned them, one or the other must be head and governor, or they cannot form the society called family. They would be simply two individuals of different sexes, and the family would fail for the want of unity. Children cannot be reared, trained, or educated without some degree of family government, of some authority to direct, control, restrain, or prescribe. Hence the authority of the husband and father is recognized by the common consent of mankind. Still more apparent is the necessity of government the moment the family develops and grows into the tribe, and the tribe into the nation. Hence no nation exists without government; and we never find a savage tribe, however low or degraded, that does not assert somewhere in the father, in the elders, or in the tribe itself, the rude outlines or the faint reminiscences of some sort of government, with authority to demand obedience and to punish the refractory. Hence, as man is nowhere found out of society, so nowhere is society found without government. Government is necessary: but let it be remarked by the way, that its necessity does not grow exclusively or chiefly out of the fact that the human race by sin has fallen from its primitive integrity, or original righteousness. The fall asserted by Christian theology, though often misinterpreted, and its effects underrated or exaggerated, is a fact too sadly confirmed by individual experience and universal history; but it is not the cause why government is necessary, though it may be an additional reason for demanding it. Government would have been necessary if man had not sinned, and it is needed for the good as well as for the bad. The law was promulgated in the Garden, while man retained his innocence and remained in the integrity of his nature. It exists in heaven as well as on earth, and in heaven in its perfection. Its office is not purely repressive, to restrain violence, to redress wrongs, and to punish the transgressor. It has something more to do than to restrict our natural liberty, curb our passions, and maintain justice between man and man. Its office is positive as well as negative. It is needed to render effective the solidarity of the individuals of a nation, and to render the nation an organism, not a mere organization--to combine men in one living body, and to strengthen all with the strength of each, and each with the strength of all--to develop, strengthen, and sustain individual liberty, and to utilize and direct it to the promotion of the common weal--to be a social providence, imitating in its order and degree the action of the divine providence itself, and, while it provides for the common good of all, to protect each, the lowest and meanest, with the whole force and majesty of society. It is the minister of wrath to wrong-doers, indeed, but its nature is beneficent, and its action defines and protects the right of property, creates and maintains a medium in which religion can exert her supernatural energy, promotes learning, fosters science and art, advances civilization, and contributes as a powerful means to the fulfilment by man of the Divine purpose in his existence. Next after religion, it is man's greatest good; and even religion without it can do only a small portion of her work. They wrong it who call it a necessary evil; it is a great good, and, instead of being distrusted, hated, or resisted, except in its abuses, it should be loved, respected, obeyed, and if need be, defended at the cost of all earthly goods, and even of life itself. The nature or essence of government is to govern. A government that does not govern, is simply no government at all. If it has not the ability to govern and governs not, it may be an agency, an instrument in the bands of individuals for advancing their private interests, but it is not government. To be government it must govern both individuals and the community. If it is a mere machine for making prevail the will of one man, of a certain number of men, or even of the community, it may be very effective sometimes for good, sometimes for evil, oftenest for evil, but government in the proper sense of the word it is not. To govern is to direct, control, restrain, as the pilot controls and directs his ship. It necessarily implies two terms, governor and governed, and a real distinction between them. The denial of all real distinction between governor and governed is an error in politics analogous to that in philosophy or theology of denying all real distinction between creator and creature, God and the universe, which all the world knows is either pantheism or pure atheism--the supreme sophism. If we make governor and governed one and the same, we efface both terms; for there is no governor nor governed, if the will that governs is identically the will that is governed. To make the controller and the controlled the same is precisely to deny all control. There must, then, if there is government at all, be a power, force, or will that governs, distinct from that which is governed. In those governments in which it is held that the people govern, the people governing do and must act in a diverse relation from the people governed, or there is no real government. Government is not only that which governs, but that which has the right or authority to govern. Power without right is not government. Governments have the right to use force at need, but might does not make right, and not every power wielding the physical force of a nation is to be regarded as its rightful government. Whatever resort to physical force it may be obliged to make, either in defence of its authority or of the rights of the nation, the government itself lies in the moral order, and politics is simply a branch of ethics--that branch which treats of the rights and duties of men in their public relations, as distinguished from their rights and duties in their private relations. Government being not only that which governs, but that which has the right to govern, obedience to it becomes a moral duty, not a mere physical necessity. The right to govern and the duty to obey are correlatives, and the one cannot exist or be conceived without the other. Hence loyalty is not simply an amiable sentiment but a duty, a moral virtue. Treason is not merely a difference in political opinion with the governing authority, but a crime against the sovereign, and a moral wrong, therefore a sin against God, the Founder of the moral Law. Treason, if committed in other Countries, unhappily, has been more frequently termed by our countrymen Patriotism and loaded with honor than branded as a crime, the greatest of crimes, as it is, that human governments have authority to punish. The American people have been chary of the word loyalty, perhaps because they regard it as the correlative of royalty; but loyalty is rather the correlative of law, and is, in its essence, love and devotion to the sovereign authority, however constituted or wherever lodged. It is as necessary, as much a duty, as much a virtue in republics as in monarchies; and nobler examples of the most devoted loyalty are not found in the world's history than were exhibited in the ancient Greek and Roman republics, or than have been exhibited by both men and women in the young republic of the United States. Loyalty is the highest, noblest, and most generous of human virtues, and is the human element of that sublime love or charity which the inspired Apostle tells us is the fulfilment of the law. It has in it the principle of devotion, of self-sacrifice, and is, of all human virtues, that which renders man the most Godlike. There is nothing great, generous, good, or heroic of which a truly loyal people are not capable, and nothing mean, base, cruel, brutal, criminal, detestable, not to be expected of a really disloyal people. Such a people no generous sentiment can move, no love can bind. It mocks at duty, scorns virtue, tramples on all rights, and holds no person, no thing, human or divine, sacred or inviolable. The assertion of government as lying in the moral order, defines civil liberty, and reconciles it with authority. Civil liberty is freedom to do whatever one pleases that authority permits or does not forbid. Freedom to follow in all things one's own will or inclination, without any civil restraint, is license, not liberty. There is no lesion to liberty in repressing license, nor in requiring obedience to the commands of the authority that has the right to command. Tyranny or oppression is not in being subjected to authority, but in being subjected to usurped authority--to a power that has no right to command, or that commands what exceeds its right or its authority. To say that it is contrary to liberty to be forced to forego our own will or inclination in any case whatever, is simply denying the right of all government, and falling into no-governmentism. Liberty is violated only when we are required to forego our own will or inclination by a power that has no right to make the requisition; for we are bound to obedience as far as authority has right to govern, and we can never have the right to disobey a rightful command. The requisition, if made by rightful authority, then, violates no right that we have or can have, and where there is no violation of our rights there is no violation of our liberty. The moral right of authority, which involves the moral duty of obedience, presents, then, the ground on which liberty and authority may meet in peace and operate to the same end. This has no resemblance to the slavish doctrine of passive obedience, and that the resistance to power can never be lawful. The tyrant may be lawfully resisted, for the tyrant, by force of the word itself, is a usurper, and without authority. Abuses of power may be resisted even by force when they become too great to be endured, when there is no legal or regular way of redressing them, and when there is a reasonable prospect that resistance will prove effectual and substitute something better in their place. But it is never lawful to resist the rightful sovereign, for it can never be right to resist right, and the rightful sovereign in the constitutional exercise of his power can never be said to abuse it. Abuse is the unconstitutional or wrongful exercise of a power rightfully held, and when it is not so exercised there is no abuse or abuses to redress. All turns, then, on the right of power, or its legitimacy. Whence does government derive its right to govern? What is the origin and ground of sovereignty? This question is fundamental and without a true answer to it politics cannot be a science, and there can be no scientific statesmanship. Whence, then, comes the sovereign right to govern? CHAPTER III. ORIGIN OF GOVERNMENT Government is both a fact and a right. Its origin as a fact, is simply a question of history; its origin as a right or authority to govern, is a question of ethics. Whether a certain territory and its population are a sovereign state or nation, or not--whether the actual ruler of a country is its rightful ruler, or not--is to be determined by the historical facts in the case; but whence the government derives its right to govern, is a question that can be solved only by philosophy, or, philosophy failing, only by revelation. Political writers, not carefully distinguishing between the fact and the right, have invented various theories as to the origin of government, among which may be named-- I. Government originates in the right of the father to govern his child. II. It originates in convention, and is a social compact. III. It originates in the people, who, collectively taken, are sovereign. IV. Government springs from the spontaneous development of nature. V. It derives its right from the immediate and express appointment of God;-- VI. From God through the Pope, or visible head of the spiritual society;-- VII. From God through the people;-- VIII. From God through the natural law. I. The first theory is sound, if the question is confined to the origin of government as a fact. The patriarchal system is the earliest known system of government, and unmistakable traces of it are found in nearly all known governments--in the tribes of Arabia and Northern Africa, the Irish septs and the Scottish clans, the Tartar hordes, the Roman qentes, and the Russian and Hindoo villages. The right of the father was held to be his right to govern his family or household, which, with his children, included his wife and servants. From the family to the tribe the transition is natural and easy, as also from the tribe to the nation. The father is chief of the family; the chief of the eldest family is chief of the tribe; the chief of the eldest tribe becomes chief of the nation, and, as such, king or monarch. The heads of families collected in a senate form an aristocracy, and the families themselves, represented by their delegates, or publicly assembling for public affairs, constitute a democracy. These three forms, with their several combinations, to wit, monarchy, aristocracy, democracy, and mixed governments, are all the forms known to Aristotle, and have generally been held to be all that are possible. Historically, all governments have, in some sense, been developed from the patriarchal, as all society has been developed from the family. Even those governments, like the ancient Roman and the modern feudal, which seem to be founded on landed property, may be traced back to a patriarchal origin. The patriarch is sole proprietor, and the possessions of the family are vested in him, and he governs as proprietor as well as father. In the tribe, the chief is the proprietor, and in the nation, the king is the landlord, and holds the domain. Hence, the feudal baron is invested with his fief by the suzerain, holds it from him, and to him it escheats when forfeited or vacant. All the great Asiatic kings of ancient or modern times hold the domain and govern as proprietors; they have the authority of the father and the owner; and their subjects, though theoretically their children, are really their slaves. In Rome, however, the proprietary right undergoes an important transformation. The father retains all the power of the patriarch within his family, the patrician in his gens or house, but, outside of it, is met and controlled by the city or state. The heads of houses are united in the senate, and collectively constitute and govern the state. Yet, not all the heads of houses have seats in the senate, but only the tenants of the sacred territory of the city, which has been surveyed and marked by the god Terminus. Hence the great plebeian houses, often richer and nobler than the patrician, were excluded from all share in the government and the honors of the state, because they were not tenants of any portion of the sacred territory. There is here the introduction of an element which is not patriarchal, and which transforms the patriarch or chief of a tribe into the city or state, and founds the civil order, or what is now called civilization. The city or state takes the place of the private proprietor, and territorial rights take the place of purely personal rights. In the theory of the Roman law, the land owns the man, not the man the land. When land was transferred to a new tenant, the practice in early times was to bury him in it, in order to indicate that it took possession of him, received, accepted, or adopted him; and it was only such persons as were taken possession of, accepted or adopted by the sacred territory or domain that, though denizens of Rome, were citizens with full political rights. This, in modern language, means that the state is territorial, not personal, and that the citizen appertains to the state, not the state to the citizen. Under the patriarchal, the tribal, and the Asiatic monarchical systems, there is, properly speaking, no state, no citizens, and the organization is economical rather than political. Authority--even the nation itself--is personal, not territorial. The patriarch, the chief of the tribe, or the king, is the only proprietor. Under the Graeco-Roman system all this is transformed. The nation is territorial as well as personal, and the real proprietor is the city or state. Under the Empire, no doubt, what lawyers call the eminent domain was vested in the emperor, but only as the representative and trustee of the city or state. When or by what combination of events this transformation was effected, history does not inform us. The first-born of Adam, we are told, built a city, and called it after his son Enoch; but there is no evidence that it was constituted a municipality. The earliest traces of the civil order proper are found in the Greek and Italian republics, and its fullest and grandest developments are found in Rome, imperial as well as republican. It was no doubt preceded by the patriarchal system, and was historically developed from it, but by way of accretion rather than by simple explication. It has in it an element that, if it exists in the patriarchal constitution, exists there only in a different form, and the transformation marks the passage from the economical order to the political, from the barbaric to the civil constitution of society, or from barbarism to civilization. The word civilization stands opposed to barbarism, and is derived from civitas--city or state. The Greeks and Romans call all tribes and nations in which authority is vested in the chief, as distinguished from the state, barbarians. The origin of the word barbarian, barbarus, or ........, is unknown, and its primary sense can be only conjectured. Webster regards its primary sense as foreign, wild, fierce; but this could not have been its original sense; for the Greeks and Romans never termed all foreigners barbarians, and they applied the term to nations that had no inconsiderable culture and refinement of manners, and that had made respectable progress in art and sciences--the Indians, Persians, Medians, Chaldeans, and Assyrians. They applied the term evidently in a political, not an ethical or an aesthetical sense, and as it would seem to designate a social order in which the state was not developed, and in which the nation was personal, not territorial, and authority was held as a private right, not as a public trust, or in which the domain vests in the chief or tribe, and not in the state; for they never term any others barbarians. Republic is opposed not to monarchy, in the modern European sense, but to monarchy in the ancient or absolute sense. Lacedaemon had kings; yet it was no less republican than Athens; and Rome was called and was a republic under the emperors no less than under the consuls. Republic, respublica, by the very force of the term, means the public wealth, or, in good English, the commonwealth; that is, government founded not on personal or private wealth, but on the public wealth, public territory, or domain, or a Government that vests authority in the nation, and attaches the nation to a certain definite territory. France, Spain, Italy, Holland, Belgium, Denmark, even Great Britain in substance though not in form, are all, in the strictest sense of the word, republican states; for the king or emperor does not govern in his own private right, but solely as representative of the power and majesty of the state. The distinctive mark of republicanism is the substitution of the state for the personal chief, and public authority for personal or private right. Republicanism is really civilization as opposed to barbarism, and all civility, in the old Sense of the word, or Civilian in Italian, is republican, and is applied in modern times to breeding or refinement of manners, simply because these are characteristics of a republican, or polished [from ....., city] people. Every people that has a real civil order, or a fully developed state or polity, is a republican people; and hence the church and her great doctors when they speak of the state as distinguished from the church, call it the republic, as may be seen by consulting even a late Encyclical of Pius IX., which some have interpreted wrongly in an anti-republican sense. All tribes and nations in which the patriarchal system remains, or is developed without transformation, are barbaric, and really so regarded by all Christendom. In civilized nations the patriarchal authority is transformed into that of the city or state, that is, of the republic; but in all barbarous nations it retains its Private and personal character. The nation is only the family or tribe, and is called by the name of its ancestor, founder, or chief, not by a geographical denomination. Race has not been supplanted by country; they are a people, not a state. They are not fixed to the soil, and though we may find in them ardent love of family, the tribe, or the chief, we never find among them that pure love of country or patriotism which so distinguished the Greeks and Romans, and is no less marked among modern Christian nations. They have a family, a race, a chief or king, but no patria, or country. The barbarians who overthrew the Roman Empire, whether of the West or the East, were nations, or confederacies of nations, but not states. The nation with them was personal, not territorial. Their country was wherever they fed their flocks and herds, pitched their tents, and encamped for the night. There were Germans, but no German state, and even to-day the German finds his "father-land" wherever the German speech is spoken. The Polish, Sclavonian, Hungarian, Illyrian, Italian, and other provinces held by German states, in which the German language is not the mother-tongue, are excluded from the Germanic Confederation. The Turks, or Osmanlis, are a race, not a state, and are encamped, not settled, on the site of the Eastern Roman or Greek Empire. Even when the barbaric nations have ceased to be nomadic, pastoral, or predatory nations, as the ancient Assyrians and Persians or modern Chinese, and have their geographical boundaries, they have still no state, no country. The nation defines the boundaries, not the boundaries the nation. The nation does not belong to the territory, but the territory to the nation or its chief. The Irish and Anglo-Saxons, in former times, held the land in gavelkind, and the territory belonged to the tribe or sept; but if the tribe held it as indivisible, they still held it as private property. The shah of Persia holds the whole Persian territory as private property, and the landholders among his subjects are held to be his tenants. They hold it from him, not from the Persian state. The public domain of the Greek empire is in theory the private domain of the Ottoman emperor or Turkish sultan. There is in barbaric states no republic, no commonwealth; authority is parental, without being tempered by parental affection. The chief is a despot, and rules with the united authority of the father and the harshness of the proprietor. He owns the land and his subjects. Feudalism, established in Western Europe after the downfall of the Roman Empire, however modified by the Church and by reminiscences of Graeco-Roman civilization retained by the conquered, was a barbaric constitution. The feudal monarch, as far as he governed at all, governed as proprietor or landholder, not as the representative of the commonwealth. Under feudalism there are estates, but no state. The king governs as an estate, the nobles hold their power as an estate, and the commons are represented as an estate. The whole theory of power is, that it is an estate; a private right, not a public trust. It is not without reason, then that the common sense of civilized nations terms the ages when it prevailed in Western Europe barbarous ages. It may seem a paradox to class democracy with the barbaric constitutions, and yet as it is defended by many stanch democrats, especially European democrats and revolutionists, and by French and Germans settled in our own country, it is essentially barbaric and anti-republican. The characteristic principle of barbarism is, that power is a private or personal right, and when democrats assert that the elective franchise is a natural right of man, or that it is held by virtue of the fact that the elector is a man, they assert the fundamental principle of barbarism and despotism. This says nothing in favor of restricted suffrage, or against what is called universal suffrage. To restrict suffrage to property-holders helps nothing, theoretically or practically. Property has of itself advantages enough, without clothing its holders with exclusive political rights and privileges, and the laboring classes any day are as trustworthy as the business classes. The wise statesman will never restrict suffrage, or exclude the poorer and more numerous classes from all voice in the government of their country. General suffrage is wise, and if Louis Philippe had had the sense to adopt it, and thus rally the whole nation to the support of his government, he would never have had to encounter the revolution of 1848. The barbarism, the despotism, is not in universal suffrage, but in defending the elective franchise as a private or personal right. It is not a private, but a political right, and, like all political rights, a public trust. Extremes meet, and thus it is that men who imagine that they march at the head of the human race and lead the civilization of the age, are really in principle retrograding to the barbarism of the past, or taking their place with nations on whom the light of civilization has never yet dawned. All is not gold that glisters. The characteristic of barbarism is, that it makes all authority a private or personal right; and the characteristic of civilization is, that it makes it a public trust. Barbarism knows only persons; civilization asserts and maintains the state. With barbarians the authority of the patriarch is developed simply by way of explication; in civilized states it is developed by way of transformation. Keeping in mind this distinction, it may be maintained that all systems of government, as a simple historical fact, have been developed from the patriarchal. The patriarchal has preceded them all, and it is with the patriarchal that the human race has begun its career. The family or household is not a state, a civil polity, but it is a government, and, historically considered, is the initial or inchoate state as well as the initial or inchoate nation. But its simple direct development gives us barbarism, or what is called Oriental despotism, and which nowhere exists, or can exist, in Christendom. It is found only in pagan and Mohammedan nations; Christianity in the secular order is republican, and continues and completes the work of Greece and Rome. It meets with little permanent success in any patriarchal or despotic nation, and must either find or create civilization, which has been developed from the patriarchal system by way of transformation. But, though the patriarchal system is the earliest form of government, and all governments have been developed or modified from it, the right of government to govern cannot be deduced from the right of the father to govern his children, for the parental right itself is not ultimate or complete. All governments that assume it to be so, and rest on it as the foundation of their authority, are barbaric or despotic, and, therefore, without any legitimate authority. The right to govern rests on ownership or dominion. Where there is no proprietorship, there is no dominion; and where there is no dominion, there is no right to govern. Only he who is sovereign proprietor is sovereign lord. Property, ownership, dominion rests on creation. The maker has the right to the thing made. He, so far as he is sole creator, is sole proprietor, and may do what he will with it. God is sovereign lord and proprietor of the universe because He is its sole creator. He hath the absolute dominion, because He is absolute maker. He has made it, He owns it; and one may do what he will with his own. His dominion is absolute, because He is absolute creator, and He rightly governs as absolute and universal lord; yet is He no despot, because He exercises only His sovereign right, and His own essential wisdom, goodness, justness, rectitude, and immutability, are the highest of all conceivable guaranties that His exercise of His power will always be right, wise, just, and good. The despot is a man attempting to be God upon earth, and to exercise a usurped power. Despotism is based on, the parental right, and the parental right is assumed to be absolute. Hence, your despotic rulers claim to reign, and to be loved and worshipped as gods. Even the Roman emperors, in the fourth and fifth centuries, were addressed as divinities; and Theodosius the Great, a Christian, was addressed as "Your Eternity," Eternitas vestras--so far did barbarism encroach on civilization, even under Christian emperors. The right of the father over his child is an imperfect right, for he is the generator, not the creator of his child. Generation is in the order of second causes, and is simply the development or explication of the race. The early Roman law, founded on the confusion of generation with creation, gave the father absolute authority over the child--the right of life and death, as over his servants or slaves; but this was restricted under the Empire, and in all Christian nations the authority of the father is treated, like all power, as a trust. The child, like the father himself, belongs to the state, and to the state the father is answerable for the use he makes of his authority. The law fixes the age of majority, when the child is completely emancipated; and even during his nonage, takes him from the father and places him under guardians, in case the father is incompetent to fulfil or grossly abuses his trust. This is proper, because society contributes to the life of the child, and has a right as well as an interest in him. Society, again, must suffer if the child is allowed to grow up a worthless vagabond or a criminal; and has a right to intervene, both in behalf of itself and of the child, in case his parents neglect to train him up in the nurture and admonition of the Lord, or are training him up to be a liar, a thief, a drunkard, a murderer, a pest to the community. How, then, base the right of society on the right of the father, since, in point of fact, the right of society is paramount to the right of the parent? But even waiving this, and granting what is not the fact that the authority of the father is absolute, unlimited, it cannot be the ground of the right of society to govern. Assume the parental right to be perfect and inseparable from the parental relation, it is no right to govern where no such relation exists. Nothing true, real, solid in government can be founded on what Carlyle calls a "sham." The statesman, if worthy of the name, ascertains and conforms to the realities, the verities of things; and all jurisprudence that accepts legal fictions is imperfect, and even censurable. The presumptions or assumptions of law or politics must have a real and solid basis, or they are inadmissible. How, from the right of the father to govern his own child, born from his loins, conclude his right to govern one not his child? Or how, from my right to govern my child, conclude the right of society to found the state, institute government, and exercise political authority over its members? CHAPTER IV. ORIGIN OF GOVERNMENT--CONTINUED. II. Rejecting the patriarchal theory as untenable, and shrinking from asserting the divine origin of government, lest they should favor theocracy, and place secular society under the control of the clergy, and thus disfranchise the laity, modern political writers have sought to render government purely human, and maintain that its origin is conventional, and that it is founded in compact or agreement. Their theory originated in the seventeenth century, and was predominant in the last century and the first third of the present. It has been, and perhaps is yet, generally accepted by American politicians and statesmen, at least so far as they ever trouble their heads with the question at all, which it must be confessed is not far. The moral theologians of the Church have generally spoken of government as a social pact or compact, and explained the reciprocal rights and obligations of subjects and rulers by the general law of contracts; but they have never held that government originates in a voluntary agreement between the people and their rulers, or between the several individuals composing the community. They have never held that government has only a conventional origin or authority. They have simply meant, by the social compact, the mutual relations and reciprocal rights and duties of princes and their subjects, as implied in the very existence and nature of civil society. Where there are rights and duties on each side, they treat the fact, not as an agreement voluntarily entered into, and which creates them, but as a compact which binds alike sovereign and subject; and in determining whether either side has sinned or not, they inquire whether either has broken the terms of the social compact. They were engaged, not with the question whence does government derive its authority, but with its nature, and the reciprocal rights and duties of governors and the governed. The compact itself they held was not voluntarily formed by the people themselves, either individually or collectively, but was imposed by God, either immediately, or mediately, through the law of nature. "Every man," says Cicero, "is born in society, and remains there." They held the same, and maintained that every one born into society contracts by that fact certain obligations to society, and society certain obligations to him; for under the natural law, every one has certain rights, as life, liberty, and the pursuit of happiness, and owes certain duties to society for the protection and assistance it affords him. But modern political theorists have abused the phrase borrowed from the theologians, and made it cover a political doctrine which they would have been the last to accept. These theorists or political speculators have imagined a state of nature antecedently to civil society, in which men lived without government, law, or manners, out of which they finally came by entering into a voluntary agreement with some one of their number to be king and to govern them, or with one another to submit to the rule of the majority. Hobbes, the English materialist, is among the earliest and most distinguished of the advocates of this theory. He held that men lived, prior to the creation of civil society, in a state of nature, in which all were equal, and every one had an equal right to every thing, and to take any thing on which he could lay his hands and was strong enough to hold. There was no law but the will of the strongest. Hence, the state of nature was a state of continual war. At length, wearied and disgusted, men sighed for peace, and, with one accord, said to the tallest, bravest, or ablest among them: Come, be our king, our master, our sovereign lord, and govern us; we surrender our natural rights and our natural independence to you, with no other reserve or condition than that you maintain peace among us, keep us from robbing and plundering one another or cutting each other's throats. Locke followed Hobbes, and asserted virtually the same theory, but asserted it in the interests of liberty, as Hobbes had asserted it in the interests of power. Rousseau, a citizen of Geneva, followed in the next century with his Contrat Social, the text-book of the French revolutionists--almost their Bible--and put the finishing stroke to the theory. Hitherto the compact or agreement had been assumed to be between the governor and the governed; Rousseau supposes it to be between the people themselves, or a compact to which the people are the only parties. He adopts the theory of a state of nature in which men lived, antecedently to their forming themselves into civil society, without government or law. All men in that state were equal, and each was independent and sovereign proprietor of himself. These equal, independent, sovereign individuals met, or are held to have met, in convention, and entered into a compact with themselves, each with all, and all with each, that they would constitute government, and would each submit to the determination and authority of the whole, practically of the fluctuating and irresponsible majority. Civil society, the state, the government, originates in this compact, and the government, as Mr. Jefferson asserts in the Declaration of American Independence, "derives its just powers from the consent of the governed." This theory, as so set forth, or as modified by asserting that the individual delegates instead of surrendering his rights to civil society, was generally adopted by the American people in the last century, and is still the more prevalent theory with those among them who happen to have any theory or opinion on the subject. It is the political tradition of the country. The state, as defined by the elder Adams, is held to be a voluntary association of individuals. Individuals create civil society, and may uncreate it whenever they judge it advisable. Prior to the Southern Rebellion, nearly every American asserted with Lafayette, "the sacred right of insurrection" or revolution, and sympathized with insurrectionists, rebels, and revolutionists, wherever they made their appearance. Loyalty was held to be the correlative of royalty, treason was regarded as a virtue, and traitors were honored, feasted, and eulogized as patriots, ardent lovers of liberty, and champions of the people. The fearful struggle of the nation against a rebellion which threatened its very existence may have changed this. That there is, or ever was, a state of nature such as the theory assumes, may be questioned. Certainly nothing proves that it is, or ever was, a real state. That there is a law of nature is undeniable. All authorities in philosophy, morals, politics, and jurisprudence assert it; the state assumes it as its own immediate basis, and the codes of all nations are founded on it; universal jurisprudence, the jus qentium of the Romans, embodies it, and the courts recognize and administer it. It is the reason and conscience of civil society, and every state acknowledges its authority. But the law of nature is as much in force in civil society as out of it. Civil law does not abrogate or supersede natural law, but presupposes it, and supports itself on it as its own ground and reason. As the natural law, which is only natural justice and equity dictated by the reason common to all men, persists in the civil law, municipal or international, as its informing soul, so does the state of nature persist in the civil state, natural society in civil society, which simply develops, applies, and protects it. Man in civil society is not out of nature, but is in it--is in his most natural state; for society is natural to him, and government is natural to society, and in some form inseparable from it. The state of nature under the natural law is not, as a separate state, an actual state, and never was; but an abstraction, in which is considered, apart from the concrete existence called society, what is derived immediately from the natural law. But as abstractions have no existence, out of the mind that forms them, the state of nature has no actual existence in the world of reality as a separate state. But suppose with the theory the state of nature to have been a real and separate state, in which men at first lived, there is great difficulty in understanding how they ever got out of it. Can a man divest himself of his nature, or lift himself above it? Man is in his nature, and inseparable from it. If his primitive state was his natural state, and if the political state is supernatural, preternatural, or subnatural, how passed he alone, by his own unaided powers, from the former to the latter? The ancients, who had lost the primitive tradition of creation, asserted, indeed, the primitive man as springing from the earth, and leading a mere animal life, living in eaves or hollow trees, and feeding on roots and nuts, without speech, without science, art, law, or sense of right and wrong; but prior to the prevalence of the Epicurean philosophy, they never pretended, that man could come out of that state alone by his own unaided efforts. They ascribed the invention of language, art, and science, the institution of civil society, government, and laws, to the intervention of the gods. It remained for the Epicureans--who, though unable, like their modern successors, the Positivists or Developmentists, to believe in a first cause, believed in effects without causes, or that things make or take care of themselves--to assert that men could, by their own unassisted efforts, or by the simple exercise of reason, come out of the primitive state, and institute what in modern times is called civilta, civility, or civilization. The partisans of this theory of the state of nature from which men have emerged by the voluntary and deliberate formation of civil society, forget that if government is not the sole condition, it is one of the essential conditions of progress. The only progressive nations are civilized or republican nations. Savage and barbarous tribes are unprogressive. Ages on ages roll over them without changing any thing in their state; and Niebuhr has well remarked with others, that history records no instance of a savage tribe or people having become civilized by its own spontaneous or indigenous efforts. If savage tribes have ever become civilized, it has been by influences from abroad, by the aid of men already civilized, through conquest, colonies, or missionaries; never by their own indigenous efforts, nor even by commerce, as is so confidently asserted in this mercantile age. Nothing in all history indicates the ability of a savage people to pass of itself from the savage state to the civilized. But the primitive man, as described by Horace in his Satires, and asserted by Hobbes, Locke, Rousseau, and others, is far below the savage. The lowest, most degraded, and most debased savage tribe that has yet been discovered has at least some rude outlines or feeble reminiscences of a social state, of government, morals, law, and religion, for even in superstition the most gross there is a reminiscence of true religion; but the people in the alleged state of nature have none. The advocates of the theory deceive themselves by transporting into their imaginary state of nature the views, habits, and capacities of the civilized man. It is, perhaps, not difficult for men who have been civilized, who have the intelligence, the arts, the affections, and the habits of civilization, if deprived by some great social convulsion of society, and thrown back on the so-called state of nature, or cast away on some uninhabited island in the ocean, and cut off from all intercourse with the rest of mankind, to reconstruct civil society, and re-establish and maintain civil government. They are civilized men, and bear civil society in their own life. But these are no representatives of the primitive man in the alleged state of nature. These primitive men have no experience, no knowledge, no conception even of civilized life, or of any state superior to that in which they have thus far lived. How then can they, since, on the theory, civil society has no root in nature, but is a purely artificial creation, even conceive of civilization, much less realize it? These theorists, as theorists always do, fail to make a complete abstraction of the civilized state, and conclude from what they feel they could do in case civil society were broken up, what men may do and have done in a state of nature. Men cannot divest themselves of themselves, and, whatever their efforts to do it, they think, reason, and act as they are. Every writer, whatever else he writes, writes himself. The advocates of the theory, to have made their abstraction complete, should have presented their primitive man as below the lowest known savage, unprogressive, and in himself incapable of developing any progressive energy. Unprogressive, and, without foreign assistance, incapable of progress, how is it possible for your primitive man to pass, by his own unassisted efforts, from the alleged state of nature to that of civilization, of which he has no conception, and towards which no innate desire, no instinct, no divine inspiration pushes him? But even if, by some happy inspiration, hardly supposable without supernatural intervention repudiated by the theory--if by some happy inspiration, a rare individual should so far rise above the state of nature as to conceive of civil society and of civil government, how could he carry his conception into execution? Conception is always easier than its realization, and between the design and its execution there is always a weary distance. The poetry of all nations is a wail over unrealized ideals. It is little that even the wisest and most potent statesman can realize of what he conceives to be necessary for the state: political, legislative or judicial reforms, even when loudly demanded, and favored by authority, are hard to be effected, and not seldom generations come and go without effecting them. The republics of Plato, Sir Thomas More, Campanella, Harrington, as the communities of Robert Owen and M. Cabet, remain Utopias, not solely because intrinsically absurd, though so in fact, but chiefly because they are innovations, have no support in experience, and require for their realization the modes of thought, habits, manners, character, life, which only their introduction and realization can supply. So to be able to execute the design of passing from the supposed state of nature to civilization, the reformer would need the intelligence, the habits, and characters in the public which are not possible without civilization itself. Some philosophers suppose men have invented language, forgetting that it requires language to give the ability to invent language. Men are little moved by mere reasoning, however clear and convincing it may be. They are moved by their affections, passions, instincts, and habits. Routine is more powerful with them than logic. A few are greedy of novelties, and are always for trying experiments; but the great body of the people of all nations have an invincible repugnance to abandon what they know for what they know not. They are, to a great extent, the slaves of their own vis inertiae, and will not make the necessary exertion to change their existing mode of life, even for a better. Interest itself is powerless before their indolence, prejudice, habits, and usages. Never were philosophers more ignorant of human nature than they, so numerous in the last century, who imagined that men can be always moved by a sense of interest, and that enlightened self-interest, L'interet bien entendu, suffices to found and sustain the state. No reform, no change in the constitution of government or of society, whatever the advantages it may promise, can be successful, if introduced, unless it has its root or germ in the past. Man is never a creator; he can only develop and continue, because he is himself a creature, and only a second cause. The children of Israel, when they encountered the privations of the wilderness that lay between them and the promised land flowing with milk and honey, fainted in spirit, and begged Moses to lead them back to Egypt, and permit them to return to slavery. In the alleged state of nature, as the philosophers describe it, there is no germ of civilization, and the transition to civil society would not be a development, but a complete rupture with the past, and an entire new creation. When it is with the greatest difficulty that necessary reforms are introduced in old and highly civilized nations and when it can seldom be done at all without terrible political and social convulsions, how can we suppose men without society, and knowing nothing of it, can deliberately, and, as it were, with "malice aforethought," found society? Without government, and destitute alike of habits of obedience and habits of command, how can they initiate, establish, and sustain government? To suppose it, would be to suppose that men in a state of nature, without culture, without science, without any of the arts, even the most simple and necessary, are infinitely superior to the men formed under the most advanced civilization. Was Rousseau right in asserting civilization as a fall, as a deterioration of the race? But suppose the state of nature, even suppose that men, by some miracle or other, can get out of it and found civil society, the origin of government as authority in compact is not yet established. According to the theory, the rights of civil society are derived from the rights of the individuals who form or enter into the compact. But individuals cannot give what they have not, and no individual has in himself the right to govern another. By the law of nature all men have equal rights, are equals, and equals have no authority one over another. Nor has an individual the sovereign right even to himself, or the right to dispose of himself as he pleases. Man is not God, independent, self-existing and self-sufficing. He is dependent, and dependent not only on his Maker, but on his fellow-men, on society, and even on nature, or the material world. That on which he depends in the measure in which be depends on it, contributes to his existence, to his life, and to his well-being, and has, by virtue of its contribution, a right in him and to him; and hence it is that nothing is more painful to the proud spirit than to receive a favor that lays him under an obligation to another. The right of that on which man depends, and by communion with which he lives, limits his own right over himself. Man does not depend exclusively on society, for it is not his only medium of communion with God, and therefore its right to him is neither absolute nor unlimited; but still be depends on it, lives in it, and cannot live without it. It has, then, certain lights over him, and he cannot enter into any compact, league, or alliance that society does not authorize, or at least permit. These rights of society override his rights to himself, and he can neither surrender them nor delegate them. Other rights, as the rights of religion and property, which are held directly from God and nature, and which are independent of society, are included in what are called the natural rights of man; and these rights cannot be surrendered in forming civil society, for they are rights of man only before civil society, and therefore not his to cede, and because they are precisely the rights that government is bound to respect and protect. The compact, then, cannot be formed as pretended, for the only rights individuals could delegate or surrender to society to constitute the sum of the rights of government are hers already, and those which are not hers are those which cannot be delegated or surrendered, and in the free and full enjoyment of which, it is the duty, the chief end of government to protect each and every individual. The convention not only is not a fact, but individuals have no authority without society, to meet in convention, and enter into the alleged compact, because they are not independent, sovereign individuals. But pass over this: suppose the convention, suppose the compact, it must still be conceded that it binds and can bind only those who voluntarily and deliberately enter into it. This is conceded by Mr. Jefferson and the American Congress of 1776, in the assertion that government derives its "just powers from the consent of the governed." This consent, as the matter is one of life and death, must be free, deliberate, formal, explicit, not simply an assumed, implied, or constructive consent. It must be given personally, and not by one for another without his express authority. It is usual to infer the consent or the acceptance of the terms of the compact from the silence of the individual, and also from his continued residence in the country and submission to its government. But residence is no evidence of consent, because it may be a matter of necessity. The individual may be unable to emigrate, if he would; and by what right can individuals form an agreement to which I must consent or else migrate to some strange land? Can my consent, under such circumstances, even if given, be any thing but a forced consent, a consent given under duress, and therefore invalid? Nothing can be inferred from one's silence, for he may have many reasons for being silent besides approval of the government. He may be silent because speech would avail nothing; because to protest might be dangerous--cost him his liberty, if not his life; because he sees and knows nothing better, and is ignorant that he has any choice in the case; or because, as very likely is the fact with the majority, he has never for moment thought of the matter, or ever had his attention called to it, and has no mind on the subject. But however this may be, there certainly must be excluded from the compact or obligation to obey the government created by it all the women of a nation, all the children too young to be capable of giving their consent, and all who are too ignorant, too weak of mind to be able to understand the terms of the contract. These several classes cannot be less than three-fourths of the population of any country. What is to be done with them? Leave them without government? Extend the power of the government over them? By what right? Government derives its just powers from the consent of the governed, and that consent they have not given. Whence does one-fourth of the population get its right to govern the other three-fourths? But what is to be done with the rights of minorities? Is the rule of unanimity to be insisted on in the convention and in the government, when it goes into operation? Unanimity is impracticable, for where there are many men there will be differences of opinion. The rule of unanimity gives to each individual a veto on the whole proceeding, which was the grand defect of the Polish constitution. Each member of the Polish Diet, which included the whole body of the nobility, had an absolute veto, and could, alone, arrest the whole action of the government. Will you substitute the rule of the majority, and say the majority must govern? By what right? It is agreed to in the convention. Unanimously, or only by a majority? The right of the majority to have their will is, on the social compact theory, a conventional right, and therefore cannot come into play before the convention is completed, or the social compact is framed and accepted. How, in settling the terms of the compact, will you proceed? By majorities? But suppose a minority objects, and demands two-thirds, three-fourths, or four-fifths, and votes against the majority rule, which is carried only by a simple plurality of votes, will the proceedings of the convention bind the dissenting minority? What gives to the majority the right to govern the minority who dissent from its action? On the supposition that society has rights not derived from individuals, and which are intrusted to the government, there is a good reason why the majority should prevail within the legitimate sphere of government, because the majority is the best representative practicable of society itself; and if the constitution secures to minorities and dissenting individuals their natural rights and their equal rights as citizens, they have no just cause of complaint, for the majority in such case has no power to tyrannize over them or to oppress them. But the theory under examination denies that society has any rights except such as it derives from individuals who all have equal rights. According to it, society is itself conventional, and created by free, independent, equal, sovereign individuals. Society is a congress of sovereigns, in which no one has authority over another, and no one can be rightfully forced to submit to any decree against his will. In such a congress the rule of the majority is manifestly improper, illegitimate, and invalid, unless adopted by unanimous consent. But this is not all. The individual is always the equal of himself, and if the government derives its powers from the consent of the governed, he governs in the government, and parts with none of his original sovereignty. The government is not his master, but his agent, as the principal only delegates, not surrenders, his rights and powers to the agent. He is free at any time he pleases to recall the powers he has delegated, to give new instructions, or to dismiss him. The sovereignty of the individual survives the compact, and persists through all the acts of his agent, the government. He must, then, be free to withdraw from the compact whenever he judges it advisable. Secession is perfectly legitimate if government is simply a contract between equals. The disaffected, the criminal, the thief the government would send to prison, or the murderer it would hang, would be very likely to revoke his consent, and to secede from the state. Any number of individuals large enough to count a majority among themselves, indisposed to pay the government taxes, or to perform the military service exacted, might hold a convention, adopt a secession ordinance, and declare themselves a free, independent, sovereign state, and bid defiance to the tax-collector and the provost-marshall, and that, too, without forfeiting their estates or changing their domicile. Would the government employ military force to coerce them back to their allegiance? By what right? Government is their agent, their creature, and no man owes allegiance to his own agent, or creature. The compact could bind only temporarily, and could at any moment be dissolved. Mr. Jefferson saw this, and very consistently maintained that one generation has no power to bind another; and, as if this was not enough, he asserted the right of revolution, and gave it as his opinion that in every nation a revolution once in every generation is desirable, that is, according to his reckoning, once every nineteen years. The doctrine that one generation has no power to bind its successor is not only a logical conclusion from the theory that governments derive their just powers from the consent of the governed, since a generation cannot give its consent before it is born, but is very convenient for a nation that has contracted a large national debt; yet, perhaps, not so convenient to the public creditor, since the new generation may take it into its head not to assume or discharge the obligations of its predecessor, but to repudiate them. No man, certainly, can contract for any one but himself; and how then can the son be bound, without his own personal or individual consent, freely given, by the obligations entered into by his father? The social compact is necessarily limited to the individuals who form it, and as necessarily, unless renewed, expires with them. It thus creates no state, no political corporation, which survives in all its rights and powers, though individuals die. The state is on this theory a voluntary association, and in principle, except that it is not a secret society, in no respect differs from the Carbonari, or the Knights of the Golden Circle. When Orsini attempted to execute the sentence of death on the Emperor of the French, in obedience to the order of the Carbonari, of which the Emperor was a member, he was, if the theory of the origin of government in compact be true, no more an assassin than was the officer who executed on the gallows the rebel spies and incendiaries Beal and Kennedy. Certain it is that the alleged social compact has in it no social or civil element. It does not and cannot create society. It can give only an aggregation of individuals, and society is not an aggregation nor even an organization of individuals. It is an organism, and individuals live in its life as well as it in theirs. There is a real living solidarity, which makes individuals members of the social body, and members one of another. There is no society without individuals, and there are no individuals without society; but in society there is that which is not individual, and is more than all individuals. The social compact is an attempt to substitute for this real living solidarity, which gives to society at once unity of life and diversity of members, an artificial solidarity, a fictitious unity for a real unity, and membership by contract for real living membership, a cork leg for that which nature herself gives. Real government has its ground in this real living solidarity, and represents the social element, which is not individual, but above all individuals, as man is above men. But the theory substitutes a simple agency for government, and makes each individual its principal. It is an abuse of language to call this agency a government. It has no one feature or element of government. It has only an artificial unity, based on diversity; its authority is only personal, individual, and in no sense a public authority, representing a public will, a public right, or a public interest. In no country could government be adopted and sustained if men were left to the wisdom or justness of their theories, or in the general affairs of life, acted on them. Society, and government as representing society, has a real existence, life, faculties, and organs of its own, not derived or derivable from individuals. As well might it be maintained that the human body consists in and derives all its life from the particles of matter it assimilates from its food, and which are constantly escaping as to maintain that society derives its life, or government its powers, from individuals. No mechanical aggregation of brute matter can make a living body, if there is no living and assimilating principle within; and no aggregation of individuals, however closely bound together by pacts or oaths, can make society where there is no informing social principle that aggregates and assimilates them to a living body, or produce that mystic existence called a state or commonwealth. The origin of government in the Contrat Social supposes the nation to be a purely personal affair. It gives the government no territorial status, and clothes it with no territorial rights or jurisdiction. The government that could so originate would be, if any thing, a barbaric, not a republican government. It has only the rights conferred on it, surrendered or delegated to it by individuals, and therefore, at best, only individual rights. Individuals can confer only such rights as they have in the supposed state of nature. In that state there is neither private nor public domain. The earth in that state is not property, and is open to the first occupant, and the occupant can lay no claim to any more than he actually occupies. Whence, then, does government derive its territorial jurisdiction, and its right of eminent domain claimed by all national governments? Whence its title to vacant or unoccupied lands? How does any particular government fix its territorial boundaries, and obtain the right to prescribe who may occupy, and on what conditions the vacant lands within those boundaries? Whence does it get its jurisdiction of navigable rivers, lakes, bays, and the seaboard within its territorial limits, as appertaining to its domain? Here are rights that it could not have derived from individuals, for individuals never possessed them in the so-called state of nature. The concocters of the theory evidently overlooked these rights, or considered them of no importance. They seem never to have contemplated the existence of territorial states, or the division of mankind into nations fixed to the soil. They seem not to have supposed the earth could be appropriated; and, indeed, many of their followers pretend that it cannot be, and that the public lands of a nation are open lands, and whoso chooses may occupy them, without leave asked of the national authority or granted. The American people retain more than one reminiscence of the nomadic and predatory habits of their Teutonic or Scythian ancestors before they settled on the banks of the Don or the Danube, on the Northern Ocean, in Scania, or came in contact with the Graeco-Roman civilization. Yet mankind are divided into nations, and all civilized nations are fixed to the soil. The territory is defined, and is the domain of the state, from which all private proprietors hold their title-deeds. Individual proprietors hold under the state, and often hold more, than they occupy; but it retains in all private estates the eminent domain, and prohibits the alienation of land to one who is not a citizen. It defends its domain, its public unoccupied lands, and the lands owned by private individuals, against all foreign powers. Now whence, if government has only the rights ceded it by individuals, does it get this domain, and hold the right to treat settlers on even its unoccupied lands as trespassers? In the state of nature the territorial rights of individuals, if any they have, are restricted to the portion of land they occupy with their rude culture, and with their flocks and herds, and in civilized nations to what they hold from the state, and, therefore, the right as held and defended by all nations, and without which the nation has no status, no fixed dwelling, and is and can be no state, could never have been derived from individuals. The earliest notices of Rome show the city in possession of the sacred territory, to which the state and all political power are attached. Whence did Rome become a landholder, and the governing people a territorial people? Whence does any nation become a territorial nation and lord of the domain? Certainly never by the cession of individuals, and hence no civilized government ever did or could originate in the so-called social compact. CHAPTER V. ORIGIN OF GOVERNMENT--CONTINUED. III. The tendency of the last century was to individualism; that of the present is to socialism. The theory of Hobbes, Locke, Rousseau, and Jefferson, though not formally abandoned, and still held by many, has latterly been much modified, if not wholly transformed. Sovereignty, it is now maintained, is inherent in the people; not individually, indeed, but collectively, or the people as society. The constitution is held not to be simply a compact or agreement entered into by the people as individuals creating civil society and government, but a law ordained by the sovereign people, prescribing the constitution of the state and defining its rights and powers. This transformation, which is rather going on than completed, is, under one aspect at least, a progress, or rather a return to the sounder principles of antiquity. Under it government ceases to be a mere agency, which must obtain the assassin's consent to be hung before it can rightfully hang him, and becomes authority, which is one and imperative. The people taken collectively are society, and society is a living organism, not a mere aggregation of individuals. It does not, of course, exist without individuals, but it is something more than individuals, and has rights not derived from them, and which are paramount to theirs. There is more truth, and truth of a higher order, in this than in the theory of the social compact. Individuals, to a certain extent, derive their life from God through society, and so far they depend on her, and they are hers; she owns them, and has the right to do as she will with them. On this theory the state emanates from society, and is supreme. It coincides with the ancient Greek and Roman theory, as expressed by Cicero, already cited. Man is born in society and remains there, and it may be regarded as the source of ancient Greek and Roman patriotism, which still commands the admiration of the civilized world. The state with Greece and Rome was a living reality, and loyalty a religion. The Romans held Rome to be a divinity, gave her statues and altars, and offered her divine worship. This was superstition, no doubt, but it had in it an element of truth. To every true philosopher there is something divine in the state, and truth in all theories. Society stands nearer to God, and participates more immediately of the Divine essence, and the state is a more lively image of God than the individual. It was man, the generic and reproductive man, not the isolated individual, that was created in the image and likeness of his Maker. "And God created man in his own image; in the image of God created he him; male and female created he them." This theory is usually called the democratic theory, and it enlists in its support the instincts, the intelligence, the living forces, and active tendencies of the age. Kings, kaisers, and hierarchies are powerless before it, and war against it in vain. The most they can do is to restrain its excesses, or to guard against its abuses. Its advocates, in returning to it, sometimes revive in its name the old pagan superstition. Not a few of the European democrats recognize in the earth, in heaven, or in hell, no power superior to the people, and say not only people-king but people-God. They say absolutely, without any qualification, the voice of the people is the voice of God, and make their will the supreme law, not only in politics, but in religion, philosophy, morals, science, and the arts. The people not only found the state, but also the church. They inspire or reveal the truth, ordain or prohibit worships, judge of doctrines, and decide cases of conscience. Mazzini said, when at the head of the Roman Republic in 1848, the question of religion must be remitted to the judgment of the people. Yet this theory is the dominant theory of the age, and is in all civilized nations advancing with apparently irresistible force. But this theory has its difficulties. Who are the collective people that have the rights of society, or, who are the sovereign people? The word people is vague, and in itself determines nothing. It may include a larger or a smaller number; it may mean the political people, or it may mean simply population; it may mean peasants, artisans, shopkeepers, traders, merchants, as distinguished from the nobility; hired laborers or workmen as distinguished from their employer, or slaves as distinguished from their master or owner. In which of these senses is the word to be taken when it is said, "The people are sovereign?" The people are the population or inhabitants of one and the same country. That is something. But who or what determines the country? Is the country the whole territory of the globe? That will not be said, especially since the dispersion of mankind and their division into separate nations. Is the territory indefinite or undefined? Then indefinite or undefined are its inhabitants, or the people invested with the rights of society. Is it defined and its boundaries fixed? Who has done it? The people. But who are the people? We are as wise as we were at starting. The logicians say that the definition of idem per idem, or the same by the same, is simply no definition at all. The people are the nation, undoubtedly, if you mean by the people the sovereign people. But who are the people constituting the nation? The sovereign people? This is only to revolve in a vicious circle. The nation is the tribe or the people living under the same regimen, and born of the same ancestor, or sprung from the same ancestor or progenitor. But where find a nation in this the primitive sense of the word? Migration, conquest, and intermarriage, have so broken up and intermingled the primitive races, that it is more than doubtful if a single nation, tribe, or family of unmixed blood now exists on the face of the earth. A Frenchman, Italian, Spaniard, German, or Englishman, may have the blood of a hundred different races coursing in his veins. The nation is the people inhabiting the same country, and united under one and the same government, it is further answered. The nation, then, is not purely personal, but also territorial. Then, again, the question comes up, who or what determines the territory? The government? But not before it is constituted, and it cannot be constituted till its territorial limits are determined. The tribe doubtless occupies territory, but is not fixed to it, and derives no jurisdiction from it, and therefore is not territorial. But a nation, in the modern or civilized sense, is fixed to the territory, and derives from it its jurisdiction, or sovereignty; and, therefore, till the territory is determined, the nation is not and cannot be determined. The question is not an idle question. It is one of great practical importance; for, till it is settled, we can neither determine who are the sovereign people, nor who are united under one and the same government. Laws have no extra-territorial force, and the officer who should attempt to enforce the national laws beyond the national territory would be a trespasser. If the limits are undetermined, the government is not territorial, and can claim as within its jurisdiction only those who choose to acknowledge its authority. The importance of the question has been recently brought home to the American people by the secession of eleven or more States from the Union. Were these States a part of the American nation, or were they not? Was the war which followed secession, and which cost so many lives and so much treasure, a civil war or a foreign war? Were the secessionists traitors and rebels to their sovereign, or were they patriots fighting for the liberty and independence of their country and the right of self-government? All on both sides agreed that the nation is sovereign; the dispute was as to the existence of the nation itself, and the extent of its jurisdiction. Doubtless, when a nation has a generally recognized existence as an historical fact, most of the difficulties in determining who are the sovereign people can be got over; but the question here concerns the institution of government, and determining who constitute society and have the right to meet in person, or by their delegates in convention, to institute it. This question, so important, and at times so difficult, the theory of the origin of government in the people collectively, or the nation, does not solve, or furnish any means of solving. But suppose this difficulty surmounted there is still another, and a very grave one, to overcome. The theory assumes that the people collectively, "in their own native right and might," are sovereign. According to it the people are ultimate, and free to do whatever they please. This sacrifices individual freedom. The origin of government in a compact entered into by individuals, each with all and all with each, sacrificed the rights of society, and assumed each individual to be in himself an independent sovereignty. If logically carried out, there could be no such crime as treason, there could be no state, and no public authority. This new theory transfers to society the sovereignty which that asserted for the individual, and asserts social despotism, or the absolutism of the state. It asserts with sufficient energy public authority, or the right of the people to govern; but it leaves no space for individual rights, which society must recognize, respect, and protect. This was the grand defect of the ancient Graeco-Roman civilization. The historian explores in vain the records of the old Greek and Roman republics for any recognition of the rights of individuals not held as privileges or concessions from the state. Society recognized no limit to her authority, and the state claimed over individuals all the authority of the patriarch over his household, the chief over his tribe, or the absolute monarch over his subjects. The direct and indirect influence of the body of freemen admitted to a voice in public affairs, in determining the resolutions and action of the state, no doubt tempered in practice to some extent the authority of the state, and prevented acts of gross oppression; but in theory the state was absolute, and the people individually were placed at the mercy of the people collectively, or, rather, the majority of the collective people. Under ancient republicanism, there were rights of the state and rights of the citizen, but no rights of man, held independently of society, and not derived from God through the state. The recognition of these rights by modern society is due to Christianity: some say to the barbarians, who overthrew the Roman empire; but this last opinion is not well founded. The barbarian chiefs and nobles had no doubt a lively sense of personal freedom and independence, but for themselves only. They had no conception of personal freedom as a general or universal right, and men never obtain universal principles by generalizing particulars. They may give a general truth a particular application, but not a particular truth--understood to be a particular truth--a general or universal application. They are too good logicians for that. The barbarian individual freedom and personal independence was never generalized into the doctrine of the rights of man, any more than the freedom of the master has been generalized into the right of his slaves to be free. The doctrine of individual freedom before the state is due to the Christian religion, which asserts the dignity and worth of every human soul, the accountability to God of each man for himself, and lays it down as law for every one that God is to be obeyed rather than men. The church practically denied the absolutism of the state, and asserted for every man rights not held from the state, in converting the empire to Christianity, in defiance of the state authority, and the imperial edicts punishing with death the profession of the Christian faith. In this she practically, as well as theoretically, overthrew state absolutism, and infused into modern society the doctrine that every individual, even the lowest and meanest, has rights which the state neither confers nor can abrogate; and it will only be by extinguishing in modern society the Christian faith, and obliterating all traces of Christian civilization, that state absolutism can be revived with more than a partial and temporary success. The doctrine of individual liberty may be abused, and so explained as to deny the rights of society, and to become pure individualism; but no political system that runs to the opposite extreme, and absorbs the individual in the state, stands the least chance of any general or permanent success till Christianity is extinguished. Yet the assertion of principles which logically imply state absolutism is not entirely harmless, even in Christian countries. Error is never harmless, and only truth can give a solid foundation on which to build. Individualism and socialism are each opposed to the other, and each has only a partial truth. The state founded on either cannot stand, and society will only alternate between the two extremes. To-day it is torn by a revolution in favor of socialism; to-morrow it will be torn by another in favor of individualism, and without effecting any real progress by either revolution. Real progress can be secured only by recognizing and building on the truth, not as it exists in our opinions or in our theories, but as it exists in the world of reality, and independent of our opinions. Now, social despotism or state absolutism is not based on truth or reality. Society has certain rights over individuals, for she is a medium of their communion with God, or through which they derive life from God, the primal source of all life; but she is not the only medium of man's life. Man, as was said in the beginning, lives by communion with God, and he communes with God in the creative act and the Incarnation, through his kind, and, through nature. This threefold communion gives rise to three institutions--religion or the church, society or the state, and property. The life that man derives from God through religion and property, is not derived from him through society, and consequently so much of his life be holds independently of society; and this constitutes his rights as a man as distinguished from his rights as a citizen. In relation to society, as not held from God through her, these are termed his natural rights, which, she must hold inviolable, and government protect for every one, whatever his complexion or his social position. These rights--the rights of conscience and the rights of property, with all their necessary implications--are limitations of the rights of society, and the individual has the right to plead them against the state. Society does not confer them, and it cannot take them away, for they are at least as sacred and as fundamental as her own. But even this limitation of popular sovereignty is not all. The people can be sovereign only in the sense in which they exist and act. The people are not God, whatever some theorists may pretend--are not independent, self-existent, and self-sufficing. They are as dependent collectively as individually, and therefore can exist and act only as second cause, never as first cause. They can, then, even in the limited sphere of their sovereignty, be sovereign only in a secondary sense, never absolute sovereign in their own independent right. They are sovereign only to the extent to which they impart life to the individual members of society, and only in the sense in which she imparts it, or is its cause. She is not its first cause or creator, and is the medial cause or medium through which they derive it from God, not its efficient cause or primary source. Society derives her own life from God, and exists and acts only as dependent on him. Then she is sovereign over individuals only as dependent on God. Her dominion is then not original and absolute, but secondary and derivative. This third theory does not err in assuming that the people collectively are more than the people individually, or in denying society to be a mere aggregation of individuals with no life, and no rights but what it derives from them; nor even in asserting that the people in the sense of society are sovereign, but in asserting that they are sovereign in their own native or underived right and might. Society has not in herself the absolute right to govern, because she has not the absolute dominion either of herself or her members. God gave to man dominion over the irrational creation, for he made irrational creatures for man; but he never gave him either individually or collectively the dominion over the rational creation. The theory that the people are absolutely sovereign in their own independent right and might, as some zealous democrats explain it, asserts the fundamental principle of despotism, and all despotism is false, for it identifies the creature with the Creator. No creature is creator, or has the rights of creator, and consequently no one in his own right is or can be sovereign. This third theory, therefore, is untenable. IV. A still more recent class of philosophers, if philosophers they may be called, reject the origin of government in the people individually or collectively. Satisfied that it has never been instituted by a voluntary and deliberate act of the people, and confounding government as a fact with government as authority, maintain that government is a spontaneous development of nature. Nature develops it as the liver secretes bile, as the bee constructs her cell, or the beaver builds his dam. Nature, working by her own laws and inherent energy, develops society, and society develops government. That is all the secret. Questions as to the origin of government or its rights, beyond the simple positive fact, belong to the theological or metaphysical stage of the development of nature, but are left behind when the race has passed beyond that stage, and has reached the epoch of positive science, in which all, except the positive fact, is held to be unreal and non-existent. Government, like every thing else in the universe, is simply a positive development of nature. Science explains the laws and conditions of the development, but disdains to ask for its origin or ground in any order that transcends the changes of the world of space and time. These philosophers profess to eschew all theory, and yet they only oppose theory to theory. The assertion that reality for the human mind is restricted to the positive facts of the sensible order, is purely theoretic, and is any thing but a positive fact. Principles are as really objects of science as facts, and it is only in the light of principles that facts themselves are intelligible. If the human mind had no science of reality that transcends the sensible order, or the positive fact, it could have no science at all. As things exist only in their principles or causes, so can they be known only in their principles and causes; for things can be known only as they are, or as they really exist. The science that pretends to deduce principles from particular facts, or to rise from the fact by way of reasoning to an order that transcends facts, and in which facts have their origin, is undoubtedly chimerical, and as against that the positivists are unquestionably right. But to maintain that man has no intelligence of any thing beyond the fact, no intuition or intellectual apprehension of its principle or cause, is equally chimerical. The human mind cannot have all science, but it has real science as far as it goes, and real science is the knowledge of things as they are, not as they are not. Sensible facts are not intelligible by themselves, because they do not exist by themselves; and if the human mind could not penetrate beyond the individual fact, beyond the mimetic to the methexic, or transcendental principle, copied or imitated by the individual fact, it could never know the fact itself. The error of modern philosophers, or philosopherlings, is in supposing the principle is deduced or inferred from the fact, and in denying that the human mind has direct and immediate intuition of it. Something that transcends the sensible order there must be, or there could be no development; and if we had no science of it, we could never assert that development is development, or scientifically explain the laws and conditions of development. Development is explication, and supposes a germ which precedes it, and is not itself a development; and development, however far it may be carried, can never do more than realize the possibilities of the germ. Development is not creation, and cannot supply its own germ. That at least must be given by the Creator, for from nothing nothing can be developed. If authority has not its germ in nature, it cannot be developed from nature spontaneously or otherwise. All government has a governing will; and without a will that commands, there is no government; and nature has in her spontaneous developments no will, for she has no personality. Reason itself, as distinguished from will, only presents the end and the means, but does not govern; it prescribes a rule, but cannot ordain a law. An imperative will, the will of a superior who has the right to command what reason dictates or approves, is essential to government; and that will is not developed from nature, because it has no germ in nature. So something above and beyond nature must be asserted, or government itself cannot be asserted, even as a development. Nature is no more self-sufficing than are the people, or than is the individual man. No doubt there is a natural law, which is law in the proper sense of the word law; but this is a positive law under which nature is placed by a sovereign above herself, and is never to be confounded with those laws of nature so-called, according to which she is productive as second cause, or produces her effects, which are not properly laws at all. Fire burns, water flows, rain falls, birds fly, fishes swim, food nourishes, poisons kill, one substance has a chemical affinity for another, the needle points to the pole, by a natural law, it is said; that is, the effects are produced by an inherent and uniform natural force. Laws in this sense are simply physical forces, and are nature herself. The natural law, in an ethical sense, is not a physical law, is not a natural force, but a law impose by the Creator on all moral creatures, that is, all creatures endowed with reason and free-will, and is called natural because promulgated in natural reason, or the reason common and essential to all moral creatures. This is the moral law. It is what the French call le droit naturell, natural right, and, as the theologians teach us, is the transcript of the eternal law, the eternal will or reason of God. It is the foundation of all law, and all acts of a state that contravene it are, as St. Augustine maintains, violences rather than laws. The moral law is no development of nature, for it is above nature, and is imposed on nature. The only development there is about it is in our understanding of it. There is, of course, development in nature, for nature considered as creation has been created in germ, and is completed only in successive developments. Hence the origin of space and time. There would have been no space if there had been no external creation, and no time if the creation had been completed externally at once, as it was in relation to the Creator. Ideal space is simply the ability of God to externize his creative act, and actual space is the relation of coexistence in the things created; ideal time is the ability of God to create existences with the capacity of being completed by successive developments, and actual time is the relation of these in the order of succession, and when the existence is completed or consummated development ceases, and time is no more. In relation to himself the Creator's works are complete from the first, and hence with him there is no time, for there is no succession. But in relation to itself creation is incomplete, and there is room for development, which may be continued till the whole possibility of creation is actualized. Here is the foundation of what is true in the modern doctrine of progress. Man is progressive, because the possibilities of his nature are successively unfolded and actualized. Development is a fact, and its laws and conditions may be scientifically ascertained and defined. All generation is development, as is all growth, physical, moral, or intellectual. But everything is developed in its own order, and after its kind. The Darwinian theory of the development of species is not sustained by science. The development starts from the germ, and in the germ is given the law or principle of the development. From the acorn is developed the oak, never the pine or the linden. Every kind generates its kind, never another. But no development is, strictly speaking, spontaneous, or the result alone of the inherent energy or force of the germ developed. There is not only a solidarity of race, but in some sense of all races, or species; all created things are bound to their Creator, and to one another. One and the same law or principle of life pervades all creation, binding the universe together in a unity that copies or imitates the unity of the Creator. No creature is isolated from the rest, or absolutely independent of others. All are parts of one stupendous whole, and each depends on the whole, and the whole on each, and each on each. All creatures are members of one body, and members one of another. The germ of the oak is in the acorn, but the acorn left to itself alone can never grow into the oak, any more than a body at rest can place itself in motion. Lay the acorn away in your closet, where it is absolutely deprived of air, heat, and moisture, and in vain will you watch for its germination. Germinate it cannot without some external influence, or communion, so to speak, with the elements from which it derives its sustenance and support. There can be no absolutely spontaneous development. All things are doubtless active, for nothing exists except in so far as it is an active force of some sort; but only God himself alone suffices for his own activity. All created things are dependent, have not their being in themselves, and are real only as they participate, through the creative act, of the Divine being. The germ can no more be developed than it could exist without God, and no more develop itself than it could create itself. What is called the law of development is in the germ; but that law or force can operate only in conjunction with another force or other forces. All development, as all growth, is by accretion or assimilation. The assimilating force is, if you will, in the germ, but the matter assimilated comes and must come from abroad. Every herdsman knows it, and knows that to rear his stock he must supply them with appropriate food; every husbandman knows it, and knows that to raise a crop of corn, he must plant the seed in a soil duly prepared, and which will supply the gases needed for its germination, growth, flowering, boiling, and ripening. In all created things, in all things not complete in themselves, in all save God, in whom there is no development possible, for He is, as say the schoolmen, most pure act, in whom there is no unactualized possibility, the same law holds good. Development is always the resultant of two factors, the one the thing itself, the other some external force co-operating with it, exciting it, and aiding it to act. Hence the praemotio physica of the Thomists, and the praevenient and adjuvant grace of the theologians, without which no one can begin the Christian life, and which must needs be supernatural when the end is supernatural. The principle of life in all orders is the same, and human activity no more suffices for itself in one order than in another. Here is the reason why the savage tribe never rises to a civilized state without communion in some form with a people already civilized, and why there is no moral or intellectual development and progress without education and instruction, consequently without instructors and educators. Hence the value of tradition; and hence, as the first man could not instruct himself, Christian theologians, with a deeper philosophy than is dreamed of by the sciolists of the age, maintain that God himself was man's first teacher, or that he created Adam a full-grown man, with all his faculties developed, complete, and in full activity. Hence, too, the heathen mythologies, which always contain some elements of truth, however they may distort, mutilate, or travesty them, make the gods the first teachers of the human race, and ascribe to their instruction even the most simple and ordinary arts of every-day life. The gods teach men to plough, to plant, to reap, to work in iron, to erect a shelter from the storm, and to build a fire to warm them and to cook their food. The common sense, as well as the common traditions of mankind, refuses to accept the doctrine that men are developed without foreign aid, or progressive without divine assistance. Nature of herself can no more develop government than it can language. There can be no language without society, and no society without language. There can be no government without society, and no society without government of some sort. But even if nature could spontaneously develop herself, she could never develop an institution that has the right to govern, for she has not herself that right. Nature is not God, has not created us, therefore has not the right of property in us. She is not and cannot be our sovereign. We belong not to her, nor does she belong to herself, for she is herself creature, and belongs to her Creator. Not being in herself sovereign, she cannot develop the right to govern, nor can she develop government as a fact, to say nothing of its right, for government, whether we speak of it as fact or as authority, is distinct from that which is governed; but natural developments are nature, and indistinguishable from her. The governor and the governed, the restrainer and the restrained, can never as such be identical. Self-government, taken strictly, is a contradiction in terms. When an individual is said to govern himself, he is never understood to govern himself in the sense in which he is governed. He by his reason and will governs or restrains his appetites and passions. It is man as spirit governing man as flesh, the spiritual mind governing the carnal mind. Natural developments cannot in all cases be even allowed to take their own course without injury to nature herself. "Follow nature" is an unsafe maxim, if it means, leave nature to develop herself as she will, and follow thy natural inclinations. Nature is good, but inclinations are frequently bad. All our appetites and passions are given us for good, for a purpose useful and necessary to individual and social life, but they become morbid and injurious if indulged without restraint. Each has its special object, and naturally seeks it exclusively, and thus generates discord and war in the individual, which immediately find expression in society, and also in the state, if the state be a simple natural development. The Christian maxim, Deny thyself, is far better than the Epicurean maxim, Enjoy thyself, for there is no real enjoyment without self-denial. There is deep philosophy in Christian asceticism, as the Positivists themselves are aware, and even insist. But Christian asceticism aims not to destroy nature, as voluptuaries pretend, but to regulate, direct, and restrain its abnormal developments for its own good. It forces nature in her developments to submit to a law which is not in her, but above her. The Positivists pretend that this asceticism is itself a natural development, but that cannot be a natural development which directs, controls, and restrains natural development. The Positivists confound nature at one time with the law of nature, and at another the law of nature with nature herself, and take what is called the natural law to be a natural development. Here is their mistake, as it is the mistake of all who accept naturalistic theories. Society, no doubt, is authorized by the law of nature to institute and maintain government. But the law of nature is not a natural development, nor is it in nature, or any part of nature. It is not a natural force which operates in nature, and which is the developing principle of nature. Do they say reason is natural, and the law of nature is only reason? This is not precisely the fact. The natural law is law proper, and is reason only in the sense that reason includes both intellect and will, and nobody can pretend that nature in her spontaneous developments acts from intelligence and volition. Reason, as the faculty of knowing, is subjective and natural; but in the sense in which it is coincident with the natural law, it is neither subjective nor natural, but objective and divine, and is God affirming himself and promulgating his law to his creature, man. It is, at least, an immediate participation of the divine by which He reveals himself and His will to the human understanding, and is not natural, but supernatural, in the sense that God himself is supernatural. This is wherefore reason is law, and every man is bound to submit or conform to reason. That legitimate governments are instituted under the natural law is frankly conceded, but this is by no means the concession of government as a natural development. The reason and will of which the natural law is the expression are the reason and will of God. The natural law is the divine law as much as the revealed law itself, and equally obligatory. It is not a natural force developing itself in nature, like the law of generation, for instance, and therefore proceeding from God as first cause, but it proceeds from God as final cause, and is, therefore, theological, and strictly a moral law, founding moral rights and duties. Of course, all morality and all legitimate government rest on this law, or, if you will, originate in it. But not therefore in nature, but in the Author of nature. The authority is not the authority of nature, but of Him who holds nature in the hollow of His hand. V. In the seventeenth century a class of political writers who very well understood that no creature, no man, no number of men, not even, nature herself, can be inherently sovereign, defended the opinion that governments are founded, constituted, and clothed with their authority by the direct and express appointment of God himself. They denied that rulers hold their power from the nation; that, however oppressive may be their rule, that they are justiciable by any human tribunal, or that power, except by the direct judgment of God, is amissible. Their doctrine is known in history as the doctrine of "the divine right of kings, and passive obedience." All power, says St. Paul, is from God, and the powers that be are ordained of God, and to resist them is to resist the ordination of God. They must be obeyed for conscience' sake. It would, perhaps, be rash to say that this doctrine had never been broached before the seventeenth century, but it received in that century, and chiefly in England, its fullest and most systematic developments. It was patronized by the Anglican divines, asserted by James I. of England, and lost the Stuarts the crown of three kingdoms. It crossed the Channel, into France, where it found a few hesitating and stammering defenders among Catholics, under Louis XIV., but it has never been very generally held, though it has had able and zealous supporters. In England it was opposed by all the Presbyterians, Puritans, Independents, and Republicans, and was forgotten or abandoned by the Anglican divines themselves in the Revolution of 1688, that expelled James II. and crowned William and Mary. It was ably refuted by the Jesuit Suarez in his reply to a Remonstrance for the Divine Right of Kings by the James I.; and a Spanish monk who had asserted it in Madrid, under Philip II., was compelled by the Inquisition to retract it publicly in the place where he had asserted it. All republicans reject it, and the Church has never sanctioned it. The Sovereign Pontiffs have claimed and exercised the right to deprive princes of their principality, and to absolve their subjects from the oath of fidelity. Whether the Popes rightly claimed and exercised that power is not now the question; but their having claimed and exercised it proves that the Church does not admit the inamissibility of power and passive obedience; for the action of the Pope was judicial, not legislative. The Pope has never claimed the right to depose a prince till by his own act he has, under the moral law or the constitution of his state, forfeited his power, nor to absolve subjects from their allegiance till their oath, according to its true intent and meaning, has ceased to bind. If the Church has always asserted with the Apostle there is no power but from God--non est potestas nisi a Deo--she has always through her doctors maintained that it is a trust to be exercised for the public good, and is forfeited when persistently exercised in a contrary sense. St. Augustine, St. Thomas, and Suarez all maintain that unjust laws are violences rather than laws, and do not oblige, except in charity or prudence, and that the republic may change its magistrates, and even its constitution, if it sees proper to do so. That God, as universal Creator, is Sovereign Lord and proprietor of all created things or existences, visible or invisible, is certain; for the maker has the absolute right to the thing made; it is his, and he may do with it as he will. As he is sole creator, he alone hath dominion; and as he is absolute creator, he has absolute dominion over all the things which he has made. The guaranty against oppression is his own essential nature, is in the plenitude of his own being, which is the plenitude of wisdom and goodness. He cannot contradict himself, be other than he is, or act otherwise than according to his own essential nature. As he is, in his own eternal and immutable essence, supreme reason and supreme good, his dominion must always in its exercise be supremely good and supremely reasonable, therefore supremely just and equitable. From him certainly is all power; he is unquestionably King of kings, and Lord of lords. By him kings reign and magistrates decree just things. He may, at his will, set up or pull down kings, rear or overwhelm empires, foster the infant colony, and make desolate the populous city. All this is unquestionably true, and a simple dictate of reason common to all men. But in what sense is it true? Is it true in a supernatural sense? Or is it true only in the sense that it is true that by him we breathe, perform any or all of our natural functions, and in him live, and move, and have our being? Viewed in their first cause, all things are the immediate creation of God, and are supernatural, and from the point of view of the first cause the Scriptures usually speak, for the great purpose and paramount object of the sacred writers, as of religion itself, is to make prominent the fact that God is universal creator, and supreme governor, and therefore the first and final cause of all things. But God creates second causes, or substantial existences, capable themselves of acting and producing effects in a secondary sense, and hence he is said to be causa causarum, cause of causes. What is done by these second causes or creatures is done eminently by him, for they exist only by his creative act, and produce only by virtue of his active presence, or effective concurrence. What he does through them or through their agency is done by him, not immediately, but mediately, and is said to be done naturally, as what he does immediately is said to be done supernaturally. Natural is what God does through second causes, which he creates; supernatural is that which he does by himself alone, without their intervention or agency. Sovereignty, or the right to govern, is in him, and he may at his will delegate it to men either mediately or immediately, by a direct and express appointment, or mediately through nature. In the absence of all facts proving its delegation direct and express, it must be assumed to be mediate, through second causes. The natural is always to be presumed, and the supernatural is to be admitted only on conclusive proof. The people of Israel had a supernatural vocation, and they received their law, embracing their religious and civil constitution and their ritual directly from God at the hand of Moses, and various individuals from time to time appear to have been specially called to be their judges, rulers, or kings. Saul was so called, and so was David. David and his line appear, also, to have been called not only to supplant Saul and his line, but to have been supernaturally invested with the kingdom forever; but it does not appear that the royal power with which David and his line were invested was inamissible. They lost it in the Babylonish captivity, and never afterwards recovered it. The Asmonean princes were of another line, and when our Lord came the sceptre was in the hands of Herod, an Idumean Or Edomite. The promise made, to David and his house is generally held by Christian commentators to have received its fulfilment in the everlasting spiritual royalty of the Messiah, sprung through Mary from David's line. The Christian Church is supernaturally constituted and supernaturally governed, but the persons selected to exercise powers supernaturally defined, from the Sovereign Pontiff down to the humblest parish priest are selected and inducted into office through human agency. The Gentiles very generally claimed to have received their laws from the gods, but it does not appear, save in exceptional cases, that they claimed that their princes were designated and held their powers by the direct and express appointment of the god. Save in the case of the Jews, and that of the Church, there is no evidence that any particular government exists or ever has existed by direct or express appointment, or otherwise than by the action of the Creator through second causes, or what is called his ordinary providence. Except David and his line, there is no evidence of the express grant by the Divine Sovereign to any individual or family, class or caste of the government of any nation or country. Even those Christian princes who professed to reign "by the grace of God," never claimed that they received their principalities from God otherwise than through his ordinary providence, and meant by it little more than an acknowledgment of their dependence on him, their obligation to use their power according to his law and their accountability to him for the use they make of it. The doctrine is not favorable to human liberty, for it recognizes no rights of man in face of civil society. It consecrates tyranny, and makes God the accomplice of the tyrant, if we suppose all governments have actually existed by his express appointment. It puts the king in the place of God, and requires us to worship in him the immediate representative of the Divine Being. Power is irresponsible and inamissible, and however it may be abused, or however corrupt and oppressive may be its exercise, there is no human redress. Resistance to power is resistance to God. There is nothing for the people but passive obedience and unreserved submission. The doctrine, in fact, denies all human government, and allows the people no voice in the management of their own affairs, and gives no place for human activity. It stands opposed to all republicanism, and makes power an hereditary and indefeasible right, not a trust which he who holds it may forfeit, and of which he may be deprived if he abuses it. CHAPTER VI. ORIGIN OF GOVERNMENT--CONCLUDED. VI. The theory which derives the right of government from the direct and express appointment of God is sometimes modified so as to mean that civil authority is derived from God through the spiritual authority. The patriarch combined in his person both authorities, and was in his own household both priest and king, and so originally was in his own tribe the chief, and in his kingdom the king. When the two offices became separated is not known. In the time of Abraham they were still united. Melchisedech, king of Salem, was both priest and king, and the earliest historical records of kings present them as offering sacrifices. Even the Roman emperor was Pontifex Maximus as well as Imperator, but that was so not because the two offices were held to be inseparable, but because they were both conferred on the same person by the republic. In Egypt, in the time of Moses, the royal authority and the priestly were separated and held by different persons. Moses, in his legislation for his nation, separated them, and instituted a sacerdotal order or caste. The heads of tribes and the heads of families are, under his law, princes, but not priests, and the priesthood is conferred on and restricted to his own tribe of Levi, and more especially the family of his own brother Aaron. The priestly office by its own nature is superior to the kingly, and in all primitive nations with a separate, organized priesthood, whether a true priesthood or a corrupt, the priest is held to be above the king, elects or establishes the law by which is selected the temporal chief, and inducts him into his office, as if he received his authority from God through the priesthood. The Christian priesthood is not a caste, and is transmitted by the election of grace, not as with the Israelites and all sacerdotal nations, by natural Generation. Like Him whose priests they are, Christian priests are priests after the order of Melchisedech, who was without priestly descent, without father or mother of the priestly line. But in being priests after the order of Melchisedech, they are both priests and kings, as Melchisedech was, and as was our Lord himself, to whom was given by his Father all power in heaven and in earth. The Pope, or Supreme Pontiff, is the vicar of our Lord on earth, his representative--the representative not only of him who is our invisible High-Priest, but of him who is King of kings and Lord of lords, therefore of both the priestly and the kingly power. Consequently, no one can have any mission to govern in the state any more than in the church, unless derived from God directly or indirectly through the Pope or Supreme Pontiff. Many theologians and canonists in the Middle Ages so held, and a few perhaps hold so still. The bulls and briefs of several Popes, as Gregory VII., Innocent Ill., Gregory IX., Innocent IV., and Boniface VIII., have the appearance of favoring it. At one period the greater part of the medieval kingdoms and principalities were fiefs of the Holy See, and recognized the Holy Father as their suzerain. The Pope revived the imperial dignity in the person of Charlemagne, and none could claim that dignity in the Western world unless elected and crowned by him, that is, unless elected directly by the Pope or by electors designated by him, and acting under his authority. There can be no question that the spiritual is superior to the temporal, and that the temporal is bound in the very nature of things to conform to the spiritual, and any law enacted by the civil power in contravention of the law of God is null and void from the beginning. This is what Mr. Seward meant by the higher law, a law higher even than the Constitution of the United States. Supposing this higher law, and supposing that kings and princes hold from God through the spiritual society, it is very evident that the chief of that society would have the right to deprive them, and to absolve their subjects, as on several occasions he actually has done. But this theory has never been a dogma of the Church, nor, to any great extent, except for a brief period, maintained by theologians or canonists. The Pope conferred the imperial dignity on Charlemagne and his successors, but not the civil power, at least out of the Pope's own temporal dominions. The emperor of Germany was at first elected by the Pope, and afterwards by hereditary electors designated or accepted by him, but the king of the Germans with the full royal authority could be elected and enthroned without the papal intervention or permission. The suzerainty of the Holy See over Italy, Naples, Aragon, Muscovy, England, and other European states, was by virtue of feudal relations, not by virtue of the spiritual authority of the Holy See or the vicarship of the Holy Father. The right to govern under feudalism was simply an estate, or property; and as the church could acquire and hold property, nothing prevented her holding fiefs, or her chief from being suzerain. The expressions in the papal briefs and bulls, taken in connection with the special relations existing between the Pope and emperor in the Middle Ages, and his relations with other states as their feudal sovereign, explained by the controversies concerning rights growing out of these relations, will be found to give no countenance to the theory in question. These relations really existed, and they gave the Pope certain temporal rights in certain states, even the temporal supremacy, as he has still in what is left him of the States of the Church; but they were exceptional or accidental relations, not the universal and essential relations between the church and the state. The rights that grew out of these relations were real rights, sacred and inviolable, but only where and while the relations subsisted. They, for the most part, grew out of the feudal system introduced into the Roman empire by its barbarian conquerors, and necessarily ceased with the political order in which they originated. Undoubtedly the church consecrated civil rulers, but this did not imply that they received their power or right to govern from God through her; but implied that their persons were sacred, and that violence to them would be sacrilege; that they held the Christian faith, and acknowledged themselves bound to protect it, and to govern their subjects justly, according to the law of God. The church, moreover, has always recognized the distinction of the two powers, and although the Pope owes to the fact that he is chief of the spiritual society, his temporal principality, no theologian or canonist of the slightest respectability would argue that he derives his rights as temporal sovereign from his rights as pontiff. His rights as pontiff depend on the express appointment of God; his rights as temporal prince are derived from the same source from which other princes derive their rights, and are held by the same tenure. Hence canonists have maintained that the subjects of other states may even engage in war with the Pope as prince, without breach of their fidelity to him as pontiff or supreme visible head of the church. The church not only distinguishes between the two powers, but recognizes as legitimate, governments that manifestly do not derive from God through her. St. Paul enjoins obedience to the Roman emperors for conscience' sake, and the church teaches that infidels and heretics may have legitimate government; and if she has ever denied the right of any infidel or heretical prince, it has been on the ground that the constitution and laws of his principality require him to profess and protect the Catholic faith. She tolerates resistance in a non-Catholic state no more than in a Catholic state to the prince; and if she has not condemned and cut off from her communion the Catholics who in our struggle have joined the Secessionists and fought in their ranks against the United States, it is because the prevalence of the doctrine of State sovereignty has seemed to leave a reasonable doubt whether they were really rebels fighting against their legitimate sovereign or not. No doubt, as the authority of the church is derived immediately from God in a supernatural manner, and as she holds that the state derives its authority only mediately from him, in a natural mode, she asserts the superiority of her authority, and that, in case of conflict between the two powers, the civil must yield. But this is only saying that supernatural is above natural. But--and this is the important point--she does not teach, nor permit the faithful to hold, that the supernatural abrogates the natural, or in any way supersedes it. Grace, say the theologians, supposes nature, gratia supponit naturam. The church in the matter of government accepts the natural, aids it, elevates it, and is its firmest support. VII. St. Augustine, St. Gregory Magnus, St. Thomas, Bellarmin, Suarez, and the theologians generally, hold that princes derive their power from God through the people, or that the people, though not the source, are the medium of all political authority, and therefore rulers are accountable for the use they make of their power to both God and the people. This doctrine agrees with the democratic theory in vesting sovereignty in the people, instead of the king or the nobility, a particular individual, family, class, or caste; and differs from it, as democracy is commonly explained, in understanding by the people, the people collectively, not individually--the organic people, or people fixed to a given territory, not the people as a mere population--the people in the republican sense of the word nation, not in the barbaric or despotic sense; and in deriving the sovereignty from God, from whom is all power, and except from whom there is and can be no power, instead of asserting it as the underived and indefeasible right of the people in their "own native right and might." The people not being God, and being only what philosophers call a second cause, they are and can be sovereign only in a secondary and relative sense. It asserts the divine origin of power, while democracy asserts its human origin. But as, under the law of nature, all men are equal, or have equal rights as men, one man has and can have in himself no right to govern another; and as man is never absolutely his own, but always and everywhere belongs to his Creator, it is clear that no government originating in humanity alone can be a legitimate government. Every such government is founded on the assumption that man is God, which is a great mistake--is, in fact, the fundamental sophism which underlies every error and every sin. The divine origin of government, in the sense asserted by Christian theologians, is never found distinctly set forth in the political writings of the ancient Greek and Roman writers. Gentile philosophy had lost the tradition of creation, as some modern philosophers, in so-called Christian nations, are fast losing it, and were as unable to explain the origin of government as they were the origin of man himself. Even Plato, the profoundest of all ancient philosophers, and the most faithful to the traditionary wisdom of the race, lacks the conception of creation, and never gets above that of generation and formation. Things are produced by the Divine Being impressing his own ideas, eternal in his own mind, on a pre-existing matter, as a seal on wax. Aristotle teaches substantially the same doctrine. Things eternally exist as matter and form, and all the Divine Intelligence does, is to unite the form to the matter, and change it, as the schoolmen say, from materia informis to materia formata. Even the Christian Platonists and Peripatetics never as philosophers assert creation; they assert it, indeed, but as theologians, as a fact of revelation, not as a fact of science; and hence it is that their theology and their philosophy never thoroughly harmonize, or at least are not shown to harmonize throughout. Speaking generally, the ancient Gentile philosophers were pantheists, and represented the universe either as God or as an emanation from God. They had no proper conception of Providence, or the action of God in nature through natural agencies, or as modern physicists say, natural laws. If they recognized the action of divinity at all, it was a supernatural or miraculous intervention of some god. They saw no divine intervention in any thing naturally explicable, or explicable by natural laws. Having no conception of the creative act, they could have none of its immanence, or the active and efficacious presence of the Creator in all his works, even in the action of second causes themselves. Hence they could not assert the divine origin of government, or civil authority, without supposing it supernaturally founded, and excluding all human and natural agencies from its institution. Their writings may be studied with advantage on the constitution of the state, on the practical workings of different forms of government, as well as on the practical administration of affairs, but never on the origin of the state, and the real ground of its authority. The doctrine is derived from Christian theology, which teaches that there is no power except from God, and enjoins civil obedience as a religious duty. Conscience is accountable to God alone, and civil government, if it had only a natural or human origin, could not bind it. Yet Christianity makes the civil law, within its legitimate sphere, as obligatory on conscience as the divine law itself, and no man is blameless before God who is not blameless before the state. No man performs faithfully his religious duties who neglects his civil duties, and hence, the law of the church allows no one to retire from the world and enter a religious order, who has duties that bind him or her to the family or the state; though it is possible that the law is not always strictly observed, and that individuals sometimes enter a convent for the sake of getting rid of those duties, or the equally important duty of taking care of themselves. But by asserting the divine origin of government, Christianity consecrates civil authority, clothes it with a religious character, and makes civil disobedience, sedition, insurrection, rebellion, revolution, civil turbulence of any sort or degree, sins against God as well as crimes against the state. For the same reason she makes usurpation, tyranny, oppression of the people by civil rulers, offences against God as well as against society, and cognizable by the spiritual authority. After the establishment of the Christian church, after its public recognition, and when conflicting claims arose between the two powers--the civil and the ecclesiastical--this doctrine of the divine origin of civil government was abused, and turned against the church with most disastrous consequences. While the Roman Empire of the West subsisted, and even after its fall, so long as the emperor of the East asserted and practically maintained his authority in the Exarchate of Ravenna and the Duchy of Rome, the Popes comported themselves, in civil matters, as subjects of the Roman emperor, and set forth no claim to temporal independence. But when the emperor had lost Rome, and all his possessions in Italy, had abandoned them, or been deprived of them by the barbarians, and ceased to make any efforts to recover them, the Pope was no longer a subject, even in civil matters, of the emperor, and owed him no civil allegiance. He became civilly independent of the Roman Empire, and had only spiritual relations with it. To the new powers that sprang up in Europe he appears never to have acknowledged any civil subjection, and uniformly asserted, in face of them, his civil as well as spiritual independence. This civil independence the successors of Charlemagne, who pretended to be the successors of the Roman Emperors of the West, and called their empire the Holy Roman Empire, denied, and maintained that the Pope owed them civil allegiance, or that, in temporals, the emperor was the Pope's superior. If, said the emperor, or his lawyers for him, the civil power is from God, as it must be, since non est potestas nisi a Deo, the state stands on the same footing with the church, and the imperial power emanates from as high a source as the Pontifical. The emperor is then as supreme in temporals as the Pope in spirituals, and as the emperor is subject to the pope in spirituals, so must the Pope be subject to the emperor in temporals. As at the time when the dispute arose, the temporal interests of churchmen were so interwoven with their spiritual rights, the pretensions of the emperor amounted practically to the subjection in spirituals as well as temporals of the ecclesiastical authority to the civil, and absorbed the church in the state, the reasoning was denied, and churchmen replied: The Pope represents the spiritual order, which is always and everywhere supreme over the temporal, since the spiritual order is the divine sovereignty itself. Always and everywhere, then, is the Pope independent of the emperor, his superior, and to subject him in any thing to the emperor would be as repugnant to reason as to subject the soul to the body, the spirit to the flesh, heaven to earth, or God to man. If the universal supremacy claimed for the Pope, rejoined the imperialists, be conceded, the state would be absorbed in the church, the autonomy of civil society would be destroyed, and civil rulers would have no functions but to do the bidding of the clergy. It would establish a complete theocracy, or, rather, clerocracy, of all possible governments the government the most odious to mankind, and the most hostile to social progress. Even the Jews could not, or would not, endure it, and prayed God to give them a king, that they might be like other nations. In the heat of the controversy neither party clearly and distinctly perceived the true state of the question, and each was partly right and partly wrong. The imperialists wanted room for the free activity of civil society, the church wanted to establish in that society the supremacy of the moral order, or the law of God, without which governments can have no stability, and society no real well-being. The real solution of the difficulty was always to be found in the doctrine of the church herself, and had been given time and again by her most approved theologians. The Pope, as the visible head of the spiritual society, is, no doubt, superior to the emperor, not precisely because he represents a superior order, but because the church, of which he is the visible chief, is a supernatural institution, and holds immediately from God; whereas civil society, represented by the emperor, holds from God only mediately, through second causes, or the people. Yet, though derived from God only through the people, civil authority still holds from God, and derives its right from Him through another channel than the church or spiritual society, and, therefore, has a right, a sacredness, which the church herself gives not, and must recognize and respect. This she herself teaches in teaching that even infidels, as we have seen, may have legitimate government, and since, though she interprets and applies the law of God, both natural and revealed, she makes neither. Nevertheless, the imperialists or the statists insisted on their false charge against the Pope, that he labored to found a purely theocratic or clerocratic government, and finding themselves unable to place the representative of the civil society on the same level with the representative of the spiritual, or to emancipate the state from the law of God while they conceded the divine origin or right of government, they sought to effect its independence by asserting for it only a natural or purely human origin. For nearly two centuries the most popular and influential writers on government have rejected the divine origin and ground of civil authority, and excluded God from the state. They have refused to look beyond second causes, and have labored to derive authority from man alone. They have not only separated the state from the church as an external corporation, but from God as its internal lawgiver, and by so doing have deprived the state of her sacredness, inviolability, or hold on the conscience, scoffed at loyalty as a superstition, and consecrated not civil authority, but what is called "the right of insurrection." Under their teaching the age sympathizes not with authority in its efforts to sustain itself and protect society, but with those who conspire against it--the insurgents, rebels, revolutionists seeking its destruction. The established government that seeks to enforce respect for its legitimate authority and compel obedience to the laws, is held to be despotic, tyrannical, oppressive, and resistance to it to be obedience to God, and a wild howl rings through Christendom against the prince that will not stand still and permit the conspirators to cut his throat. There is hardly a government now in the civilized world that can sustain itself for a moment without an armed force sufficient to overawe or crush the party or parties in permanent conspiracy against it. This result is not what was aimed at or desired, but it is the logical or necessary result of the attempt to erect the state on atheistical principles. Unless founded on the divine sovereignty, authority can sustain itself only by force, for political atheism recognizes no right but might. No doubt the politicians have sought an atheistical, or what is the same thing, a purely human, basis for government, in order to secure an open field for human freedom and activity, or individual or social progress. The end aimed at has been good, laudable even, but they forgot that freedom is possible only with authority that protects it against license as well as against despotism, and that there can be no progress where there is nothing that is not progressive. In civil society two things are necessary--stability and movement. The human is the element of movement, for in it are possibilities that can be only successively actualized. But the element of stability can be found only in the divine, in God, in whom there is no unactualized possibility, who, therefore, is immovable, immutable, and eternal. The doctrine that derives authority from God through the people, recognizes in the state both of these elements, and provides alike for stability and progress. This doctrine is not mere theory; it simply states the real order of things. It is not telling what ought to be, but what is in the real order. It only asserts for civil government the relation to God which nature herself holds to him, which the entire universe holds to the Creator. Nothing in man, in nature, in the universe, is explicable without the creative act of God, for nothing exists without that act. That God "in the beginning created heaven and earth," is the first principle of all science as of all existences, in politics no less than in theology. God and creation comprise all that is or exists, and creation, though distinguishable from God as the act from the actor, is inseparable from him, "for in Him we live and move and have our being." All creatures are joined to him by his creative act, and exist only as through that act they participate of his being. Through that act he is immanent as first cause in all creatures and in every act of every creature. The creature deriving from his creative act can no more continue to exist than it could begin to exist without it. It is as bad philosophy as theology, to suppose that God created the universe, endowed it with certain laws of development or activity, wound it up, gave it a jog, set it agoing, and then left it to go of itself. It cannot go of itself, because it does not exist of itself. It did not merely not begin to exist, but it cannot continue to exist, without the creative act. Old Epicurus was a sorry philosopher, or rather, no philosopher at all. Providence is as necessary as creation, or rather, Providence is only continuous creation, the creative act not suspended or discontinued, or not passing over from the creature and returning to God. Through the creative act man participates of God, and he can continue to exist, act, or live only by participating through it of his divine being. There is, therefore, something of divinity, so to speak, in every creature, and therefore it is that God is worshipped in his works without idolatry. But he creates substantial existences capable of acting as second causes. Hence, in all living things there is in their life a divine element and a natural element; in what is called human life, there are the divine and the human, the divine as first and the human as second cause, precisely what the doctrine of the great Christian theologians assert to be the fact with all legitimate or real government. Government cannot exist without the efficacious presence of God any more than man himself, and men might as well attempt to build up a world as to attempt to found a state without God. A government founded on atheistical principles were less than a castle in the air. It would have nothing to rest on, would not be even so much as "the baseless fabric of a vision," and they who imagine that they really do exclude God from their politics deceive themselves; for they accept and use principles which, though they know it not, are God. What they call abstract principles, or abstract forms of reason, without which there were no logic, are not abstract, but the real, living God himself. Hence government, like man himself, participates of the divine being, and, derived from God through the people, it at the same time participates of human reason and will, thus reconciling authority with freedom, and stability with progress. The people, holding their authority from God, hold it not as an inherent right, but as a trust from Him, and are accountable to Him for it. It is not their own. If it were their own they might do with it as they pleased, and no one would have any right to call them to an account; but holding it as a trust from God, they are under his law, and bound to exercise it as that law prescribes. Civil rulers, holding their authority from God through the people, are accountable for it both to Him and to them. If they abuse it they are justiciable by the people and punishable by God himself. Here is the guaranty against tyranny, oppression, or bad government, or what in modern times is called the responsibility of power. At the same time the state is guarantied against sedition, insurrection, rebellion, revolution, by the elevation of the civic virtues to the rank of religious, virtues, and making loyalty a matter of conscience. Religion is brought to the aid of the state, not indeed as a foreign auxiliary, but as integral in the political order itself. Religion sustains the state, not because it externally commands us to obey the higher powers, or to be submissive to the powers that be, not because it trains the people to habits of obedience, and teaches them to be resigned and patient under the grossest abuses of power, but because it and the state are in the same order, and inseparable, though distinct, parts of one and the same whole. The church and the state, as corporations or external governing bodies, are indeed separate in their spheres, and the church does not absorb the state, nor does the state the church; but both are from God, and both work to the same end, and when each is rightly understood there is no antithesis or antagonism between them. Men serve God in serving the state as directly as in serving the church. He who dies on the battle-field fighting for his country ranks with him who dies at the stake for his faith. Civic virtues are themselves religious virtues, or at least virtues without which there are no religious virtues, since no man who loves not his brother does or can love God. The guaranties offered the state or authority are ample, because it has not only conscience, moral sentiment, interest, habit, and the via inertia of the mass, but the whole physical force of the nation, at its command. The individual has, indeed, only moral guaranties against the abuse of power by the sovereign people, which may no doubt sometimes prove insufficient. But moral guaranties are always better than none, and there are none where the people are held to be sovereign in their own native right and might, organized or unorganized, inside or outside of the constitution, as most modern democratic theorists maintain; since, if so, the will of the people, however expressed, is the criterion of right and wrong, just and unjust, true and false, is infallible and impeccable, and no moral right can ever be pleaded against it; they are accountable to nobody, and, let them do what they please, they can do no wrong. This would place the individual at the mercy of the state, and deprive him of all right to complain, however oppressed or cruelly treated. This would establish the absolute despotism of the state, and deny every thing like the natural rights of man, or individual and personal freedom, as has already been shown. Now as men do take part in government, and as men, either individually or collectively, are neither infallible nor impeccable, it is never to be expected, under any possible constitution or form of government, that authority will always be wisely and justly exercised, that wrong will ever be done, and the rights of individuals never in any instance be infringed; but with the clear understanding that all power is of God, that the political sovereignty is vested in the people or the collective body, that the civil rulers hold from God through them and are responsible to Him through them, and justiciable by them, there is all the guaranty against the abuse of power by the nation, the political or organic people, that the nature of the case admits. The nation may, indeed, err or do wrong, but in the way supposed you get in the government all the available wisdom and virtue the nation has, and more is never, under any form or constitution of government, practicable or to be expected. It is a maxim with constitutional statesmen, that "the king reigns, not governs." The people, though sovereign under God, are not the government. The government is in their name and by virtue of authority delegated from God through them, but they are not it, are not their own ministers. It is only when the people forget this and undertake to be their own ministers and to manage their own affairs immediately by themselves instead of selecting agents to do it for them, and holding their agents to a strict account for their management, that they are likely to abuse their power or to sanction injustice. The nation may be misled or deceived for a moment by demagogues, those popular courtiers, but as a rule it is disposed to be just and to respect all natural rights. The wrong is done by individuals who assume to speak in their name, to wield their power, and to be themselves the state. L'etat, c'est moi. I am the state, said Louis XIV. of France, and while that was conceded the French nation could have in its government no more wisdom or virtue than he possessed, or at least no more than he could appreciate. And under his government France was made responsible for many deeds that the nation would never have sanctioned, if it bad been recognized as the depositary of the national sovereignty, or as the French state, and answerable to God for the use it made of political power, or the conduct of its government. But be this as it may, there evidently can be no physical force in the nation to coerce the nation itself in case it goes wrong, for if the sovereignty vests in the nation, only the nation can rightly command or authorize the employment of force, and all commissions must run in its name. Written constitutions alone will avail little, for they emanate from the people, who can disregard them, if they choose, and alter or revoke them at will. The reliance for the wisdom and justice of the state must after all be on moral guaranties. In the very nature of the case there are and can be no other. But these, placed in a clear light, with an intelligent and religious people, will seldom be found insufficient. Hence the necessity for the protection, not of authority simply or chiefly, but of individual rights and the liberty of religion and intelligence in the nation, of the general understanding that the nation holds its power to govern as a trust from God, and that to God through the people all civil rulers are strictly responsible. Let the mass of the people in any nation lapse into the ignorance and barbarism of atheism, or lose themselves in that supreme sophism called pantheism, the grand error of ancient as well as of modern gentilism, and liberty, social or political, except that wild kind of liberty, and perhaps not even that should be excepted, which obtains among savages, would be lost and irrecoverable. But after all, this theory does not meet all the difficulties of the case. It derives sovereignty from God, and thus asserts the divine origin of government in the sense that the origin of nature is divine; it derives it from God through the people, collectively, or as society, and therefore concedes it a natural, human, and social element, which distinguishes it from pure theocracy. It, however, does not explain how authority comes from God to the people. The ruler, king, prince, or emperor, holds from God through the people, but how do the people themselves hold from God? Mediately or immediately? If mediately, what is the medium? Surely not the people themselves. The people can no more be the medium than the principle of their own sovereignty. If immediately, then God governs in them as he does in the church, and no man is free to think or act contrary to popular opinion, or in any case to question the wisdom or justice of any of the acts of the state, which is arriving at state absolutism by another process. Besides, this would theoretically exclude all human or natural activity, all human intelligence and free-will from the state, which were to fall into either pantheism or atheism. VIII. The right of government to govern, or political authority, is derived by the collective people or society, from God through the law of nature. Rulers hold from God through the people or nation, and the people or nation hold from God through the natural law. How nations are founded or constituted, or a particular people becomes a sovereign political people, invested with the rights of society, will be considered in following chapters. Here it suffices to say that supposing a political people or nation, the sovereignty vests in the community, not supernaturally, or by an external supernatural appointment, as the clergy hold their authority, but by the natural law, or law by which God governs the whole moral creation. They who assert the origin of government in nature are right, so far as they derive it from God through the law of nature, and are wrong only when they understand by the law of nature the physical force or forces of nature, which are not laws in the primary and proper sense of the term. The law of nature is not the order or rule of the divine action in nature which is rightfully called providence, but is, as has been said, law in its proper and primary sense, ordained by the Author of nature, as its sovereign and supreme Lawgiver, and binds all of his creatures who are endowed with reason and free-will, and is called natural, because promulgated through the reason common to all men. Undoubtedly, it was in the first instance, to the first man, supernaturally promulgated, as it is republished and confirmed by Christianity, as an integral part of the Christian code itself. Man needs even yet instruction in relation to matters lying within the range of natural reason, or else secular schools, colleges, and universities would be superfluous, and manifestly the instructor of the first man could have been only the Creator himself. The knowledge of the natural law has been transmitted from Adam to us through two channels--reason, which is in every man, and in immediate relation with the Creator, and the traditions of the primitive instruction embodied in language and what the Romans call jus gentium, or law common to all civilized nations. Under this law, whose prescriptions are promulgated through reason and embodied in universal jurisprudence, nations are providentially constituted, and invested with political sovereignty; and as they are constituted under this law and hold from God through it, it defines their respective rights and powers, their limitation and their extent. The political sovereignty, under the law of nature, attaches to the people, not individually, but collectively, as civil or political society. It is vested in the political community or nation, not in an individual, or family, or a class, because, under the natural law, all men are equal, as they are under the Christian law, and one man has, in his own right, no authority over another. The family has in the father a natural chief, but political society has no natural chief or chiefs. The authority of the father is domestic, not political, and ceases when his children have attained to majority, have married and become heads of families themselves, or have ceased to make part of the paternal household. The recognition of the authority of the father beyond the limits of his own household, is, if it ever occurs, by virtue of the ordinance, the consent, express or tacit, of the political society. There are no natural-born political chiefs, and wherever we find men claiming or acknowledged to be such, they are either usurpers, what the Greeks called tyrants, or they are made such by the will or constitution of the people or the nation. Both monarchy and aristocracy were, no doubt, historically developed from the authority of the patriarchs, and have unquestionably been sustained by an equally false development of the right of property, especially landed property. The owner of the land, or he who claimed to own it, claimed as an incident of his ownership the right to govern it, and consequently to govern all who occupied it. But however valid may be the landlord's title to the soil, and it is doubtful if man can own any thing in land beyond the usufruct, it can give him under the law of nature no political right. Property, like all natural rights, is entitled by the natural law to protection, but not to govern. Whether it shall be made a basis of political power or not is a question of political prudence, to be determined by the supreme political authority. It was the basis, and almost exclusive basis, in the Middle Ages, under feudalism, and is so still in most states. France and the United States are the principal exceptions in Christendom. Property alone, or coupled with birth, is made elsewhere in some form a basis of political power, and where made so by the sovereign authority, it is legitimate, but not wise nor desirable; for it takes from the weak and gives to the strong. The rich have in their riches advantages enough over the poor, without receiving from the state any additional advantage. An aristocracy, in the sense of families distinguished by birth, noble and patriotic services, wealth, cultivation, refinement, taste, and manners, is desirable in every nation, is a nation's ornament, and also its chief support, but they need and should receive no political recognition. They should form no privileged class in the state or political society. CHAPTER VII CONSTITUTION OF GOVERNMENT. The Constitution is twofold: the constitution of the state or nation, and the constitution of the government. The constitution of the government is, or is held to be, the work of the nation itself; the constitution of the state, or the people of the state, is, in its origin at least, providential, given by God himself, operating through historical events or natural causes. The one originates in law, the other in historical fact. The nation must exist, and exist as a political community, before it can give itself a constitution; and no state, any more than an individual, can exist without a constitution of some sort. The distinction between the providential constitution of the people and the constitution of the government, is not always made. The illustrious Count de Maistre, one of the ablest political philosophers who wrote in the last century, or the first quarter of the present, in his work on the Generative Principle of Political Constitutions, maintains that constitutions are generated, not made, and excludes all human agency from their formation and growth. Disgusted with French Jacobinism, from which he and his kin and country had suffered so much, and deeply wedded to monarchy in both church and state, he had the temerity to maintain that God creates expressly royal families for the government of nations, and that it is idle for a nation to expect a good government without a king who has descended from one of those divinely created royal families. It was with some such thought, most likely, that a French journalist, writing home from the United States, congratulated the American people on having a Bonaparte in their army, so that when their democracy failed, as in a few years it was sure to do, they would have a descendant of a royal house to be their king or emperor. Alas! the Bonaparte has left us, and besides, he was not the descendant of a royal house, and was, like the present Emperor of the French, a decided parvenu. Still, the Emperor of the French, if only a parvenu, bears himself right imperially among sovereigns, and has no peer among any of the descendants of the old royal families of Europe. There is a truth, however, in De Maistre's doctrine that constitutions are generated, or developed, not created de novo, or made all at once. But nothing is more true than that a nation can alter its constitution by its own deliberate and voluntary action, and many nations have done so, and sometimes for the better, as well as for the worse. If the constitution once given is fixed and unalterable, it must be wholly divine, and contain no human element, and the people have and can have no hand in their own government--the fundamental objection to the theocratic constitution of society. To assume it is to transfer to civil society, founded by the ordinary providence of God, the constitution of the church, founded by his gracious or supernatural providence, and to maintain that the divine sovereignty governs in civil society immediately and supernaturally, as in the spiritual society. But such is not the fact. God governs the nation by the nation itself, through its own reason and free-will. De Maistre is right only as to the constitution the nation starts with, and as to the control which that constitution necessarily exerts over the constitutional changes the nation can successfully introduce. The disciples of Jean Jacques Rousseau recognize no providential constitution, and call the written instrument drawn up by a convention of sovereign individuals the constitution, and the only constitution, both of the people and the government. Prior to its adoption there is no government, no state, no political community or authority. Antecedently to it the people are an inorganic mass, simply individuals, without any political or national solidarity. These individuals, they suppose, come together in their own native right and might, organize themselves into a political community, give themselves a constitution, and draw up and vote rules for their government, as a number of individuals might meet in a public hall and resolve themselves into a temperance society or a debating club. This might do very well if the state were, like the temperance society or debating club, a simple voluntary association, which men are free to join or not as they please, and which they are bound to obey no farther and no longer than suits their convenience. But the state is a power, a sovereignty; speaks to all within its jurisdiction with an imperative voice; commands, and may use physical force to compel obedience, when not voluntarily yielded. Men are born its subjects, and no one can withdraw from it without its express or tacit permission, unless for causes that would justify resistance to its authority. The right of subjects to denationalize or expatriate themselves, except to escape a tyranny or an oppression which would forfeit the rights of power and warrant forcible resistance to it, does not exist, any more than the right of foreigners to become citizens, unless by the consent and authorization of the sovereign; for the citizen or subject belongs to the state, and is bound to it. The solidarity of the individuals composing the population of a territory or country under one political head is a truth; but "the solidarity of peoples," irrespective of the government or political authority of their respective countries, so eloquently preached a few years since by the Hungarian Kossuth, is not only a falsehood, but a falsehood destructive of all government and of all political organization. Kossuth's doctrine supposes the people, or the populations of all countries, are, irrespective of their governments, bound together in solido, each for all and all for each, and therefore not only free, but bound, wherever they find a population struggling nominally for liberty against its government, to rush with arms in their hands to its assistance--a doctrine clearly incompatible with any recognition of political authority or territorial rights. Peoples or nations commune with each other only through the national authorities, and when the state proclaims neutrality or non-intervention, all its subjects are bound to be neutral, and to abstain from all intervention on either side. There may be, and indeed there is, a solidarity, more or less distinctly recognized, of Christian nations, but of the populations with and through their governments, not without them. Still more strict is the solidarity of all the individuals of one and the same nation. These are all bound together, all for each and each for all. The individual is born into society and under the government, and without the authority of the government, which represents all and each, he cannot release himself from his obligations. The state is then by no means a voluntary association. Every one born or adopted into it is bound to it, and cannot without its permission withdraw from it, unless, as just said, it is manifest that he can have under it no protection for his natural rights as a man, more especially for his rights of conscience. This is Vattel's doctrine, and the dictate of common sense. The constitution drawn up, ordained, and established by a nation for itself is a law--the organic or fundamental law, if you will, but a law, and is and must be the act of the sovereign power. That sovereign power must exist before it can act, and it cannot exist, if vested in the people or nation, without a constitution, or without some sort of political organization of the people or nation. There must, then, be for every state or nation a constitution anterior to the constitution which the nation gives itself, and from which the one it gives itself derives all its vitality and legal force. Logic and historical facts are here, as elsewhere, coincident, for creation and providence are simply the expression of the Supreme Logic, the Logos, by whom all things are made. Nations have originated in various ways, but history records no instance of a nation existing as an inorganic mass organizing itself into a political community. Every nation, at its first appearance above the horizon, is found to have an organization of some sort. This is evident from the only ways in which history shows us nations originating. These ways are: 1. The union of families in the tribe. 2. The union of tribes in the nation. 3. The migration of families, tribes, or nations in search of new settlements. 4. Colonization, military, agricultural, commercial, industrial, religious, or penal. 5. War and conquest. 6. The revolt, separation, and independence of provinces. 7. The intermingling of the conquerors and conquered, and by amalgamation forming a new people. These are all the ways known to history, and in none of these ways does a people, absolutely destitute of all organization, constitute itself a state, and institute and carry on civil government. The family, the tribe, the colony are, if incomplete, yet incipient states, or inchoate nations, with an organization, individuality, and a centre of social life of their own. The families and tribes that migrate in search of new settlements carry with them their family and tribal organizations, and retain it for a long time. The Celtic tribes retained it in Gaul till broken up by the Roman conquest, under Caesar Augustus; in Ireland, till the middle of the seventeenth century; and in Scotland, till the middle of the eighteenth. It subsists still in the hordes of Tartary, the Arabs of the Desert, and the Berbers or Kabyles of Africa. Colonies, of whatever description, have been founded, if not by, at least under, the authority of the mother country, whose political constitution, laws, manners, and customs they carry with them. They receive from the parent state a political organization, which, though subordinate, yet constitutes them embryonic states, with a unity, individuality, and centre of public life in themselves, and which, when they are detached and recognized as independent, render them complete states. War and conquest effect great national changes, but do not, strictly speaking, create new states. They simply extend and consolidate the power of the conquering state. Provinces revolt and become independent states or nations, but only when they have previously existed as such, and have retained the tradition of their old constitution and independence; or when the administration has erected them into real though dependent political communities. A portion of the people of a state not so erected or organized, that has in no sense had a distinct political existence of its own, has never separated from the national body and formed a new and independent nation. It cannot revolt; it may rise up against the government, and either revolutionize and take possession of the state, or be put down by the government as an insurrection. The amalgamation of the conquering and the conquered forms a new people, and modifies the institutions of both, but does not necessarily form a new nation or political community. The English of to-day are very different from both the Normans and the Saxons, or Dano-Saxons, of the time of Richard Coeur de Lion, but they constitute the same state or political community. England is still England. The Roman empire, conquered by the Northern barbarians, has been cut up into several separate and independent nations, but because its several provinces had, prior to their conquest by the Roman arms, been independent nations or tribes, and more especially because the conquerors themselves were divided into several distinct nations or confederacies. If the barbarians had been united in a single nation or state, the Roman empire most likely would have changed masters, indeed, but have retained its unity and its constitution, for the Germanic nations that finally seated themselves on its ruins had no wish to destroy its name or nationality, for they were themselves more than half Romanized before conquering Rome. But the new nations into which the empire has been divided have never been, at any moment, without political or governmental organization, continued from the constitution of the conquering tribe or nation, modified more or less by what was retained from the empire. It is not pretended that the constitutions of states cannot be altered, or that every people starts with a constitution fully developed, as would seem to be the doctrine of De Maistre. The constitution of the family is rather economical than political, and the tribe is far from being a fully developed state. Strictly speaking, the state, the modern equivalent for the city of the Greeks and Romans, was not fully formed till men began to build and live in cities, and became fixed to a national territory. But in the first place, the eldest born of the human race, we are told, built a city, and even in cities we find traces of the family and tribal organization long after their municipal existence--in Athens down to the Macedonian conquest, and in Rome down to the establishment of the Empire; and, in the second place, the pastoral nations, though they have not precisely the city or state organization, yet have a national organization, and obey a national authority. Strictly speaking, no pastoral nation has a civil or political constitution, but they have what in our modern tongues can be expressed by no other term. The feudal regime, which was in full vigor even in Europe from the tenth to the close of the fourteenth century, had nothing to do with cities, and really recognized no state proper; yet who hesitates to speak of it as a civil or political system, though a very imperfect one? The civil order, as it now exists, was not fully developed in the early ages. For a long time the national organizations bore unmistakable traces of having been developed from the patriarchal, and modelled from the family or tribe, as they do still in all the non-Christian world. Religion itself, before the Incarnation, bore traces of the same organization. Even with the Jews, religion was transmitted and diffused, not as under Christianity by conversion, but by natural generation or family adoption. With all the Gentile tribes or nations, it was the same. At first the father was both priest and king, and when the two offices were separated, the priests formed a distinct and hereditary class or caste, rejected by Christianity, which, as we have seen, admits priests only after the order of Melchisedech. The Jews had the synagogue, and preserved the primitive revelation in its purity and integrity; but the Greeks and Romans, more fully than any other ancient nations, preserved or developed the political order that best conforms to the Christian religion; and Christianity, it is worthy of remark, followed in the track of the Roman armies, and it gains a permanent establishment only where was planted, or where it is able to plant, the Graeco-Roman civilization. The Graeco-Roman republics were hardly less a schoolmaster to bring the world to Christ in the civil order, than the Jewish nation was to bring it to Him in the spiritual order, or in faith and worship. In the Christian order nothing is by hereditary descent, but every thing is by election of grace. The Christian dispensation is teleological, palingenesiac, and the whole order, prior to the Incarnation, was initial, genesiac, and continued by natural generation, as it is still in all nations and tribes outside of Christendom. No non-Christian people is a civilized people, and, indeed, the human race seems not anywhere, prior to the Incarnation, to have attained to its majority: and it is, perhaps, because the race were not prepared for it, that the Word was not sooner incarnated. He came only in the fulness of time, when the world was ready to receive him. The providential constitution is, in fact, that with which the nation is born, and is, as long as the nation exists, the real living and efficient constitution of the state. It is the source of the vitality of the state, that which controls or governs its action, and determines its destiny. The constitution which a nation is said to give itself, is never the constitution of the state, but is the law ordained by the state for the government instituted under it. Thomas Paine would admit nothing to be the constitution but a written document which he could fold up and put in his pocket, or file away in a pigeon-hole. The Abbe Sieyes pronounced politics a science which he had finished, and he was ready to turn you out constitutions to order, with no other defect than that they had, as Carlyle wittily says, no feet, and could not go. Many in the last century, and some, perhaps, in the present, for folly as well as wisdom has her heirs, confounded the written instrument with the constitution itself. No constitution can be written on paper or engrossed on parchment. What the convention may agree upon, draw up, and the people ratify by their votes, is no constitution, for it is extrinsic to the nation, not inherent and living in it--is, at best, legislative instead of constitutive. The famous Magna Charta drawn up by Cardinal Langton, and wrung from John Lackland by the English barons at Runnymede, was no constitution of England till long after the date of its concession, and even then was no constitution of the state, but a set of restrictions on power. The constitution is the intrinsic or inherent and actual constitution of the people or political community itself; that which makes the nation what it is, and distinguishes it from every other nation, and varies as nations themselves vary from one another. The constitution of the state is not a theory, nor is it drawn up and established in accordance with any preconceived theory. What is theoretic in a constitution is unreal. The constitutions conceived by philosophers in their closets are constitutions only of Utopia or Dreamland. This world is not governed by abstractions, for abstractions are nullities. Only the concrete is real, and only the real or actual has vitality or force. The French people adopted constitution after constitution of the most approved pattern, and amid bonfires, beating of drums, sound of trumpets, roar of musketry, and thunder of artillery, swore, no doubt, sincerely as well as enthusiastically, to observe them, but all to no effect; for they had no authority for the nation, no hold on its affections, and formed no element of its life. The English are great constitution-mongers--for other nations. They fancy that a constitution fashioned after their own will fit any nation that can be persuaded, wheedled, or bullied into trying it on; but, unhappily, all that have tried it on have found it only an embarrassment or encumbrance. The doctor might as well attempt to give an individual a new constitution, or the constitution of another man, as the statesman to give a nation any other constitution than that which it has, and with which it is born. The whole history of Europe, since the fall of the Roman empire, proves this thesis. The barbarian conquest of Rome introduced into the nations founded on the site of the empire, a double constitution--the barbaric and the civil--the Germanic and the Roman in the West, and the Tartaric or Turkish and the Graeco-Roman in the East. The key to all modern history is in the mutual struggles of these two constitutions and the interests respectively associated with them, which created two societies on the same territory, and, for the most part, under the same national denomination. The barbaric was the constitution of the conquerors; they had the power, the government, rank, wealth, and fashion, were reinforced down to the tenth century by fresh hordes of barbarians, and had even brought the external ecclesiastical society to a very great extent into harmony with itself. The Pope became a feudal sovereign, and the bishops and mitred abbots feudal princes and barons. Yet, after eight hundred years of fierce struggle, the Roman constitution got the upper hand, and the barbaric constitution, as far as it could not be assimilated to the Roman, was eliminated. The original Empire of the West is now as thoroughly Roman in its constitution, its laws, and its civilization, as it ever was under any of its Christian emperors before the barbarian conquest. The same process is going on in the East, though it has not advanced so far, having begun there several centuries later, and the Graeco-Roman constitution was far feebler there than in the West at the epoch of the conquest. The Germanic tribes that conquered the West had long had close relations with the empire, had served as its allies, and even in its armies, and were partially Romanized. Most of their chiefs had received a Roman culture; and their early conversion to the Christian faith facilitated the revival and permanence of the old Roman constitution. In the East it was different. The conquerors had no touch of Roman civilization, and, followers of the Prophet, they were animated with an intense hatred, which, after the conquest, was changed into a superb contempt, of Christians and Romans. They had their civil constitution in the Koran; and the Koran, in its principles, doctrines, and spirit, is exclusive and profoundly intolerant. The Graeco-Roman constitution was always much weaker in the East, and had far greater obstacles to overcome there than in the West; yet it has survived the shock of the conquest. Throughout the limits of the ancient Empire of the East, the barbaric constitution has received and is daily receiving rude blows, and, but as reenforced by barbarians lying outside of the boundaries of that empire, would be no longer able to sustain itself. The Greek or Christian populations of the empire are no longer in danger of being exterminated or absorbed by the Mohammedan state or population. They are the only living and progressive people of the Ottoman Empire, and their complete success in absorbing or expelling the Turk is only a question of time. They will, in all present probability, reestablish a Christian and Roman East in much less time from the fall of Constantinople in 1453, than it took the West from the fall of Rome in 476 to put an end to the feudal or barbaric constitution founded by its Germanic invaders. Indeed, the Roman constitution, laws, and civilization not only gain the mastery in the nations seated within the limits of the old Roman Empire, but extend their power through out the whole civilized world. The Graeco-Roman civilization is, in fact, the only civilization now recognized, and nations are accounted civilized only in proportion as they are Romanized and Christianized. The Roman law, as found in the Institutes, Pandects, and Novellae of Justinian, or the Corpus Legis Civilis, is the basis of the law and jurisprudence of all Christendom. The Graeco-Roman civilization, called not improperly Christian civilization, is the only progressive civilization. The old feudal system remains in England little more than an empty name. The king is only the first magistrate of the kingdom, and the House of Lords is only an hereditary senate. Austria is hard at work in the Roman direction, and finds her chief obstacle to success in Hungary, with the Magyars whose feudalism retains almost the full vigor of the Middle Ages. Russia is moving in the same direction; and Prussia and the smaller Germanic states obey the same impulse. Indeed, Rome has survived the conquest--has conquered her conquerors, and now invades every region from which they came. The Roman Empire may be said to be acknowledged and obeyed in lands lying far beyond the farthest limits reached by the Roman eagles, and to be more truly the mistress of the world than under Augustus, Trajan, or the Antonines. Nothing can stand before the Christian and Romanized nations, and all pagandom and Mohammedom combined are too weak to resist their onward march. All modern European revolutions result only in reviving the Roman Empire, whatever the motives, interests, passions, or theories that initiate them. The French Revolution of the last century and that of the present prove it. France, let people say what they will, stands at the head of the European civilized world, and displays en grand all its good and all its bad tendencies. When she moves, Europe moves; when she has a vertigo, all European nations are dizzy; when she recovers her health, her equilibrium, and good sense, others become sedate, steady, and reasonable. She is the head, nay, rather, the heart of Christendom--the head is at Rome--through which circulates the pure and impure blood of the nations. It is in vain Great Britain, Germany, or Russia disputes with her the hegemony of European civilization. They are forced to yield to her at last, to be content to revolve around her as the centre of the political system that masters them. The reason is, France is more completely and sincerely Roman than any other nation. The revolutions that have shaken the world have resulted in eliminating the barbaric elements she had retained, and clearing away all obstacles to the complete triumph of Imperial Rome. Napoleon III. is for France what Augustus was for Rome. The revolutions in Spain and Italy have only swept away the relics of the barbaric constitution, and aided the revival of Roman imperialism. In no country do the revolutionists succeed in establishing their own theories; Caesar remains master of the field. Even in the United States, a revolution undertaken in favor of the barbaric system has resulted in the destruction of what remained of that system--in sweeping away the last relics of disintegrating feudalism, and in the complete establishment of the Graeco-Roman system, with important improvements, in the New World. The Roman system is republican, in the broad sense of the term, because under it power is never an estate, never the private for the public good. As it existed under the Caesars, and is revived in modern times, whether under the imperial or the democratic form, it, no doubt, tends to centralism, to the concentration of all the powers and forces of the state in one central government, from which all local authorities and institutions emanate. Wise men oppose it as affording no guaranties to individual liberty against the abuses of power. This it may not do, but the remedy is not in feudalism. The feudal lord holds his authority as an estate, and has over the people under him all the power of Caesar and all the rights of the proprietor. He, indeed, has a guaranty against his liege-lord, sometimes a more effective guaranty than his liege-lord has against him; but against his centralized power his vassals and serfs have only the guaranty that a slave has against his owner. Feudalism is alike hostile to the freedom of public authority and of the people. It is essentially a disintegrating element in the nation. It breaks the unity and individuality of the state, embarrasses the sovereign, and guards against the abuse of public authority by overpowering and suppressing it. Every feudal lord is a more thorough despot in his own domain than Caesar ever was or could be in the empire; and the monarch, even if strong enough, is yet not competent to intervene between him and his people, any more than the General government in the United States was to intervene between the negro slave and his master. The great vassals of the crown singly, or, if not singly, in combination--and they could always combine in the interest of their order--were too strong for the king, or to be brought under any public authority, and could issue from their fortified castles and rob and plunder to their hearts' content, with none to call them to an account. Under the most thoroughly centralized government there is far more liberty for the people, and a far greater security for person and property, except in the case of the feudal nobles themselves, than was even dreamed of while the feudal regime was in full vigor. Nobles were themselves free, it is conceded, but not the people. The king was too weak, too restricted in his action by the feudal constitution to reach them, and the higher clergy were ex officio sovereigns, princes, barons, or feudal lords, and were led by their private interests to act with the feudal nobility, save when that nobility threatened the temporalities of the church. The only reliance, under God, left in feudal times to the poor people was in the lower ranks of the clergy, especially of the regular clergy. All the great German emperors in the twelfth and thirteenth centuries, who saw the evils of feudalism, and attempted to break it up and revive imperial Rome, became involved in quarrels with the chiefs of the religious society, and failed, because the interest of the Popes, as feudal sovereigns and Italian princes, and the interests of the dignified clergy, were for the time bound up with the feudal society, though their Roman culture and civilization made them at heart hostile to it. The student of history, however strong his filial affection towards the visible head of the church, cannot help admiring the grandeur of the political views of Frederic the Second, the greatest and last of the Hohenstaufen, or refrain from dropping a tear over his sad failure. He had great faults as a man, but he had rare genius as a statesman; and it is some consolation to know that he died a Christian death, in charity with all men, after having received the last sacraments of his religion. The Popes, under the circumstances, were no doubt justified in the policy they pursued, for the Swabian emperors failed to respect the acknowledged rights of the church, and to remember their own incompetency in spirituals; but evidently their political views and aims were liberal, far-reaching, and worthy of admiration. Their success, if it could have been effected without lesion to the church, would have set Europe forward some two or three hundred years, and probably saved it from the schisms of the fourteenth and sixteenth centuries. But it is easy to be wise after the event. The fact is, that during the period when feudalism was in full vigor, the king was merely a shadow; the people found their only consolation in religion, and their chief protectors in the monks, who mingled with them, saw their sufferings, and sympathized with them, consoled them, carried their cause to the castle before the feudal lord and lady, and did, thank God, do something to keep alive religious sentiments and convictions in the bosom of the feudal society itself. Whatever opinions may be formed of the monastic orders in relation to the present, this much is certain, that they were the chief civilizers of Europe, and the chief agents in delivering European society from feudal barbarism. The aristocracy have been claimed as the natural allies of the throne, but history proves them to be its natural enemies, whenever it cannot be used in their service, and kings do not consent to be their ministers and to do their bidding. A political aristocracy has at heart only the interests of its order, and pursues no line of policy but the extension or preservation of its privileges. Having little to gain and much to lose, it opposes every political change that would either strengthen the crown or elevate the people. The nobility in the French Revolution were the first to desert both the king and the kingdom, and kings have always found their readiest and firmest allies in the people. The people in Europe have no such bitter feelings towards royalty as they have towards the feudal nobility--for kings have never so grievously oppressed them. In Rome the patrician order opposed alike the emperor and the people, except when they, as chivalric nobles sometimes will do, turned courtiers or demagogues. They were the people of Rome and the provinces that sustained the emperors, and they were the emperors who sustained the people, and gave to the provincials the privileges of Roman citizens. Guaranties against excessive centralism are certainly needed, but the statesman will not seek them in the feudal organization of society--in a political aristocracy, whether founded on birth or private wealth, nor in a privileged class of any sort. Better trust Caesar than Brutus, or even Cato. Nor will he seek them in the antagonism of interests intended to neutralize or balance each other, as in the English constitution. This was the great error of Mr. Calhoun. No man saw more clearly than Mr. Calhoun the utter worthlessness of simple paper constitutions, on which Mr. Jefferson placed such implicit reliance, or that the real constitution is in the state itself, in the manner in which the people themselves are organized; but his reliance was in constituting, as powers in the state, the several popular interests that exist, and pitting them against each other--the famous system of checks and balances of English states men. He was led to this, because he distrusted power, and was more intention guarding against its abuses than on providing for its free, vigorous, and healthy action, going on the principle that "that is the best government which governs least." But, if the opposing interests could be made to balance one another perfectly, the result would be an equilibrium, in which power would be brought to a stand-still; and if not, the stronger would succeed and swallow up all the rest. The theory of checks and balances is admirable if the object be to trammel power, and to have as little power in the government as possible; but it is a theory which is born from passions engendered by the struggle against despotism or arbitrary power, not from a calm and philosophical appreciation of government itself. The English have not succeeded in establishing their theory, for, after all, their constitution does not work so well as they pretend. The landed interest controls at one time, and the mercantile and manufacturing interest at another. They do not perfectly balance one another, and it is not difficult to see that the mercantile and manufacturing interest, combined with the moneyed interest, is henceforth to predominate. The aim of the real statesman is to organize all the interests and forces of the state dialectically, so that they shall unite to add to its strength, and work together harmoniously for the common good. CHAPTER VIII. CONSTITUTION OF GOVERNMENT--CONCLUDED. Though the constitution of the people is congenital, like the constitution of an individual, and cannot be radically changed without the destruction of the state, it must not be supposed that it is wholly withdrawn from the action of the reason and free-will of the nation, nor from that of individual statesmen. All created things are subject to the law of development, and may be developed either in a good sense or in a bad; that is, may be either completed or corrupted. All the possibilities of the national constitution are given originally in the birth of the nation, as all the possibilities of mankind were given in the first man. The germ must be given in the original constitution. But in all constitutions there is more than one element, and the several elements maybe developed pari passu, or unequally, one having the ascendency and suppressing the rest. In the original constitution of Rome the patrician element was dominant, showing that the patriarchal organization of society still retained no little force. The king was only the presiding officer of the senate and the leader of the army in war. His civil functions corresponded very nearly to those of a mayor of the city of New York, where all the effective power is in the aldermen, common council, and heads of departments. Except in name he was little else than a pageant. The kings, no doubt, labored to develop and extend the royal element of the constitution. This was natural; and it was equally natural that they should be resisted by the patricians. Hence when the Tarquins, or Etruscan dynasty, undertook to be kings in fact as well as in name, and seemed likely to succeed, the patricians expelled them, and supplied their place by two consuls annually elected. Here was a modification, but no real change of the constitution. The effective Power, as before, remained in the senate. But there was from early times a plebeian element in the population of the city, though forming at first no part of the political people. Their origin is not very certain, nor their original position in the city. Historians give different accounts of them. But that they should, as they increased in numbers, wealth, and importance, demand admission into the political society, religious or solemn marriage, a voice in the government, and the faculty of holding civil and military offices, was only in the order of regular development. At first the patricians fought them, and, failing to subdue them by force, effected a compromise, and bought up their leaders. The concession which followed of the tribunitial veto was only a further development. By that veto the plebeians gained no initiative, no positive power, indeed, but their tribunes, by interposing it, could stop the proceedings of the government. They could not propose the measures they liked, but they could prevent the legal adoption of measures they disliked--a faculty Mr. Calhoun asserted for the several States of the American Union in his doctrine of nullification, or State veto, as he called it. It was simply an obstructive power. But from a power to obstruct legislative action to the power to originate or propose it, and force the senate to adopt it through fear of the veto of measures the patricians had at heart, was only a still further development. This gained, the exclusively patrician constitution had disappeared, and Marius, the head of a great plebeian house, could be elected consul and the plebeians in turn threaten to become predominant, which Sylla or Sulla, as dictator, seeing, tried in vain to prevent. The dictator was provided for in the original constitution. Retain the dictatorship for a time, strengthen the plebeian element by ruthless proscriptions of patricians and by recruits from the provinces, unite the tribunitial, pontifical, and military powers in the imperator designated by the army, all elements existing in the constitution from an early day, and already developed in the Roman state, and you have the imperial constitution, which retained to the last the senate and consuls, though with less and less practical power. These changes are very great, but are none of them radical, dating from the recognition of the plebs as pertaining to the Roman people. They are normal developments, not corruptions, and the transition from the consular republic to the imperial was unquestionably a real social and political progress. And yet the Roman people, had they chosen, could have given a different direction to the developments of their constitution. There was Providence in the course of events, but no fatalism. Sulla was a true patrician, a blind partisan of the past. He sought to arrest the plebeian development led by Marius, and to restore the exclusively patrician government. But it was too late. His proscriptions, confiscations, butcheries, unheard-of cruelties which anticipated and surpassed those of the French Revolution of 1793, availed nothing. The Marian or plebeian movement, apparently checked for a moment, resumed its march with renewed vigor under Julius, and triumphed at Pharsalia. In vain Cicero, only accidentally associated with the patrician party, which distrusted him--in vain Cicero declaims, Cato scolds, or parades his impractical virtues, Brutus and Cassius seize the assassin's dagger, and strike to the earth "the foremost man of all the world;" the plebeian cause moves on with resistless force, triumphs anew at Philippi, and young Octavius avenges the murder of his uncle, and proves to the world that the assassination of a ruler is a blunder as well as a crime. In vain does Mark Antony desert the movement, rally Egypt and the barbaric East, and seek to transfer the seat of empire from the Tiber to the banks of the Nile or the Orontes; plebeian and imperial Rome wins a final victory at Actium, and definitively secures the empire of the civilized world to the West. Thus far the developments were normal, and advanced civilization. But Rome still retained the barbaric element of slavery in her bosom, and had conquered more barbaric nations than she had assimilated. These nations she at first governed as tributary states, with their own constitutions and national chiefs; afterwards as Roman provinces, by her own proconsuls and prefects. When the emperors threw open the gates of the city to the provincials, and conceded them the rights and privileges of Roman citizens, they introduced not only a foreign element into the state, destitute of Roman patriotism, but the barbaric and despotic elements retained by the conquered nations as yet only partially assimilated. These elements became germs of anti-republican developments, rather of corruptions, and prepared the downfall of the empire. Doubtless these corruptions might have been arrested, and would have been, if Roman patriotism had survived the changes effected in the Roman population by the concession of Roman citizenship to provincials; but it did not, and they were favored as time went on by the emperors themselves, and more especially by Dioclesian, a real barbarian, who hated Rome, and by Constantine, surnamed the Great, a real despot, who converted the empire from a republican to a despotic empire. Rome fell from the force of barbarism developed from within, far more than from the force of the barbarians hovering on her frontiers and invading her provinces. The law of all possible developments is in the providential or congenital constitution; but these possible developments are many and various, and the reason and free-will of the nation as well as of individuals are operative in determining which of them shall be adopted. The nation, under the direction of wise and able statesmen who understood their age and country, who knew how to discern between normal developments and barbaric corruptions, placed at the head of affairs in season, might have saved Rome from her fate, eliminated the barbaric and assimilated the foreign elements, and preserved Rome as a Christian and republican empire to this day, and saved the civilized world from the ten centuries of barbarism which followed her conquest by the barbarians of the North. But it rarely happens that the real statesmen of a nation are placed at the head of affairs. Rome did not fall in consequence of the strength of her external enemies, nor through the corruption of private morals and manners, which was never greater than under the first Triumvirate. She fell from the want of true statesmanship in her public men, and patriotism in her people. Private virtues and private vices are of the last consequence to individuals, both here and hereafter; but private virtues never saved, private vices never ruined a nation. Edward the Confessor was a saint, and yet he prepared the way for the Norman conquest of England; and France owes infinitely less to St. Louis than to Louis XI., Richelieu, and Napoleon, who, though no saints, were statesmen. What is specially needed in statesmen is public spirit, intelligence, foresight, broad views, manly feelings, wisdom, energy, resolution; and when statesmen with these qualities are placed at the head of affairs, the state, if not already lost, can, however far gone it may be, be recovered, restored, reinvigorated, advanced, and private vice and corruption disappear in the splendor of public virtue. Providence is always present in the affairs of nations, but not to work miracles to counteract the natural effects of the ignorance, ineptness, short-sightedness, narrow views, public stupidity, and imbecility of rulers, because they are irreproachable and saintly in their private characters and relations, as was Henry VI. of England, or, in some respects, Louis XVI. of France. Providence is God intervening through the laws he by his creative act gives to creatures, not their suspension or abrogation. It was the corruption of the statesmen, in substituting the barbaric element for the proper Roman, to which no one contributed more than Constantine, the first Christian emperor, that was the real cause of the downfall of Rome, and the centuries of barbarism that followed, relieved only by the superhuman zeal and charity of the church to save souls and restore civilization. But in the constitution of the government, as distinguished from the state, the nation is freer and more truly sovereign. The constitution of the state is that which gives to the people of a given territory political existence, unity, and individuality, and renders it capable of political action. It creates political or national solidarity, in imitation of the solidarity of the race, in which it has its root. It is the providential charter of national existence, and that which gives to each nation its peculiar character, and distinguishes it from every other nation. The constitution of government is the constitution by the sovereign authority of the nation of an agency or ministry for the management of its affairs, and the letter of instructions according to which the agent or minister is to act and conduct the matters intrusted to him. The distinction which the English make between the sovereign and the ministry is analogous to that between the state and the government, only they understand by the sovereign the king or queen, and by the ministry the executive, excluding, or not decidedly including, the legislature and the judiciary. The sovereign is the people as the state or body politic, and as the king holds from God only through the people, he is not properly sovereign, and is to be ranked with the ministry or government. Yet when the state delegates the full or chief governing power to the king, and makes him its sole or principal representative, he may, with sufficient accuracy for ordinary purposes, be called sovereign. Then, understanding by the ministry or government the legislative and judicial, as well as the executive functions, whether united in one or separated into distinct and mutually independent departments, the English distinction will express accurately enough, except for strictly scientific purposes, the distinction between the state and the government. Still, it is only in despotic states, which are not founded on right, but force, that the king can say, L'etat, c'est moi, I am the state; and Shakespeare's usage of calling the king of France simply France, and the king of England simply England, smacks of feudalism, under which monarchy is an estate, property, not a public trust. It corresponds to the Scottish usage of calling the proprietor by the name of his estate. It is never to be forgotten that in republican states the king has only a delegated sovereignty, that the people, as well as God, are above him. He holds his power, as the Emperor of the French professes to hold his, by the grace of God and the national will--the only title by which a king or emperor can legitimately hold power. The king or emperor not being the state, and the government, whatever its form or constitution, being a creature of the state, he can be dethroned, and the whole government even virtually overthrown, without dissolving the state or the political society. Such an event may cause much evil, create much social confusion, and do grave injury to the nation, but the political society may survive it; the sovereign remains in the plenitude of his rights, as competent to restore government as he was originally to institute it. When, in 1848, Louis Philippe was dethroned by the Parisian mob, and fled the kingdom, there was in France no legitimate government, for all commissions ran in the king's name; but the organic or territorial people of France, the body politic, remained, and in it remained the sovereign power to organize and appoint a new government. When, on the 2d of December, 1851, the president, by a coup d'etat, suppressed the legislative assembly and the constitutional government, there was no legitimate government standing, and the power assumed by the president was unquestionably a usurpation; but the nation was competent to condone his usurpation and legalize his power, and by a plebiscitum actually did so. The wisdom or justice of the coup d'etat is another question, about which men may differ; but when the French nation, by its subsequent act, had condoned it, and formally conferred dictatorial powers on the prince-president, the principal had approved the act of his agent, and given him discretionary powers, and nothing more was to be said. The imperial constitution and the election of the president to be emperor, that followed on December 2d, 1852, were strictly legal, and, whatever men may think of Napoleon III., it must be conceded that there is no legal flaw in his title, and that he holds his power by a title as high and as perfect as there is for any prince or ruler. But the plebiscitum cannot be legally appealed to or be valid when and where there is a legal government existing and in the full exercise of its constitutional functions, as was decided by the Supreme Court of the United States in a case growing out of what is known as the Dorr rebellion in Rhode Island. A suffrage committee, having no political authority, drew up and presented a new constitution of government to the people, plead a plebiscitum in its favor, and claimed the officers elected under it as the legally elected officers of the state. The court refused to recognize the plebiscitum, and decided that it knew Rhode Island only as represented through the government, which had never ceased to exist. New States in Territories have been organized on the strength of a plebiscitum when the legal Territorial government was in force, and were admitted as States into the Union, which, though irregular and dangerous, could be done without revolution, because Congress, that admitted them, is the power to grant the permission to organize as States and apply for admission. Congress is competent to condone an offence against its own rights. The real danger of the practice is, that it tends to create a conviction that sovereignty inheres in the people individually, or as population, not as the body politic or organic people attached to a sovereign domain; and the people who organize under a plebiscitum are not, till organized and admitted into the Union, an organic or a political people at all. When Louis Napoleon made his appeal to a vote of the French people, he made an appeal to a people existing as a sovereign people, and a sovereign people without a legal government. In his case the plebiscitum was proper and sufficient, even if it be conceded that it was through his own fault that France at the moment was found without a legal government. When a thing is done, though wrongly done, you cannot act as if it were not done, but must accept it as a fact and act accordingly. The plebiscitum, which is simply an appeal to the people outside of government, is not valid when the government has not lapsed, either by its usurpations or by its dissolution, nor is it valid either in the case of a province, or of a population that has no organic existence as an independent sovereign state. The plebiscitum in France was valid, but in the Grand Duchy of Tuscany, the Duchies of Modena, Parma, and Lucca, and in the Kingdom of the Two Sicilies it was not valid, for their legal governments had not lapsed; nor was it valid in the Aemilian provinces of the Papal States, because they were not a nation or a sovereign people, but only a portion of such nation or people. In the case of the states and provinces--except Lombardy, ceded to France by Austria, and sold to the Sardinian king--annexed to Piedmont to form the new kingdom of Italy, the plebiscitum was invalid, because implying the right of the people to rebel against the legal authority, and to break the unity and individuality of the state of which they form an integral part. The nation is a whole, and no part has the right to secede or separate, and set up a government for itself, or annex itself to another state, without the consent of the whole. The solidarity of the nation is both a fact and a law. The secessionists from the United States defended their action only on the ground that the States of the American Union are severally independent sovereign states, and they only obeyed the authority of their respective states. The plebiscitum, or irregular appeal to what is called universal suffrage, since adopted by Louis Napoleon in France after the coup d'etat, is becoming not a little menacing to the stability of governments and the rights and integrity of states, and is not less dangerous to the peace and order of society than "the solidarity of peoples" asserted by Kossuth, the revolutionary ex-governor of Hungary, the last stronghold of feudal barbarism in Christian Europe; for Russia has emancipated her serfs. The nation, as sovereign, is free to constitute government according to its own judgment, under any form it pleases--monarchical, aristocratic, democratic, or mixed--vest all power in an hereditary monarch, in a class or hereditary nobles, in a king and two houses of parliament, one hereditary, the other elective, or both elective; or it may establish a single, dual, or triple executive, make all officers of government hereditary or all elective, and if elective, elective for a longer or a shorter time, by universal suffrage or a select body of electors. Any of these forms and systems, and many others besides, are or may be legitimate, if established and maintained by the national will. There is nothing in the law of God or of nature, antecedently to the national will, that gives any one of them a right to the exclusion of any one of the others. The imperial system in France is as legitimate as the federative system in the United States. The only form or system that is necessarily illegal is the despotic. That can never be a truly civilized government, nor a legitimate government, for God has given to man no dominion over man. He gave men, as St. Augustine says, and Pope St. Gregory the Great repeats, dominion over the irrational creation, not over the rational, and hence the primitive rulers of men were called pastors or shepherds, not lords. It may be the duty of the people subjected to a despotic government to demean themselves quietly and peaceably towards it, as a matter of prudence, to avoid sedition, and the evils that would necessarily follow an attempted revolution, but not because, founded as it is on mere force, it has itself any right or legality. All other forms of government are republican in their essential constitution, founded on public right, and held under God from and for the commonwealth, and which of them is wisest and best for the commonwealth is, for the most part, an idle question. "Forms of government," somebody has said, "are like shoes--that is the best form which best fit the feet that are to wear them." Shoes are to be fitted to the feet, not the feet to the shoes, and feet vary in size and conformation. There is, in regard to government, as distinguished from the state, no antecedent right which binds the people, for antecedently to the existence of the government as a fact, the state is free to adopt any form that it finds practicable, or judges the wisest and best for itself. Ordinarily the form of the government practicable for a nation is determined by the peculiar providential constitution of the territorial people, and a form of government that would be practicable and good in one country may be the reverse in another. The English government is no doubt the best practicable in Great Britain, at present at least, but it has proved a failure wherever else it has been attempted. The American system has proved itself, in spite of the recent formidable rebellion to overthrow it, the best and only practicable government for the United States, but it is impracticable everywhere else, and all attempts by any European or other American state to introduce it can end only in disaster. The imperial system apparently works well in France, but though all European states are tending to it, it would not work well at all on the American continent, certainly not until the republic of the United States has ceased to exist. While the United States remain the great American power, that system, or its kindred system, democratic centralism, can never become an American system, as Maximilian's experiment in Mexico is likely to prove. Political propagandism, except on the Roman plan, that is, by annexation and incorporation, is as impracticable as it is wanting in the respect that one independent people owes to another. The old French Jacobins tried to propagate, even with fire and sword, their system throughout Europe, as the only system compatible with the rights of man. The English, since 1688, have been great political propagandists, and at one time it seemed not unlikely that every European state would try the experiment of a parliamentary government, composed of an hereditary crown, an hereditary house of lords, and an elective house of commons. The democratic Americans are also great political propagandists, and are ready to sympathize with any rebellion, insurrection, or movement in behalf of democracy in any part of the world, however mean or contemptible, fierce or bloody it may be; but all this is as unstatesmanlike as unjust; unstatesmanlike, for no form of government can bear transplanting, and because every independent nation is the sole judge of what best comports with its own interests, and its judgment is to be respected by the citizens as well as by the governments of other states. Religious propagandism is a right and a duty, because religion is catholic and of universal obligation; and so is the jus gentium of the Romans, which is only the application to individuals and nations of the great principles of natural justice; but no political propagandism is ever allowable, because no one form of government is catholic in its nature, or of universal obligation. Thoughtful Americans are opposed to political propagandism, and respect the right of every nation to choose its own form of government; but they hold that the American system is the best in itself, and that if other nations were as enlightened as the American, they would adopt it. But though the American system, rightly understood, is the best, as they hold, it is not because other nations are less enlightened, which is by no means a fact, that they do not adopt, or cannot bear it, but solely because their providential constitutions do not require or admit it, and an attempt to introduce it in any of them would prove a failure and a grave evil. Fit your shoes to your feet. The law of the governmental constitution is in that of the nation. The constitution of the government must grow out of the constitution of the state, and accord with the genius, the character, the habits, customs, and wants of the people, or it will not work well, or tend to secure the legitimate ends of government. The constitutions imagined by philosophers are for Utopia, not for any actual, living, breathing people. You must take the state as it is, and develop your governmental constitution from it, and harmonize it with it. Where there is a discrepancy between the two constitutions, the government has no support in the state, in the organic people, or nation, and can sustain itself only by corruption or physical force. A government may be under the necessity of using force to suppress an insurrection or rebellion against the national authority, or the integrity of the national territory, but no government that can sustain itself, not the state, only by physical force or large standing armies, can be a good government, or suited to the nation. It must adopt the most stringent repressive measures, suppress liberty of speech and of conscience, outrage liberty in what it has the most intimate and sacred, and practise the most revolting violence and cruelty, for it can govern only by terror. Such a government is unsuited to the nation. This is seen in all history: in the attempt of the dictator Sulla to preserve the old patrician government against the plebeian power that time and events had developed in the Roman state, and which was about to gain the supremacy, as we have seen, at Pharsalia, Philippi, and Actium; in the efforts to establish a Jacobinical government in France in 1793; in Rome in 1848, and the government of Victor Emmanuel in Naples in 1860 and 1861. These efforts, proscriptions, confiscations, military executions, assassinations, massacres, are all made in the name of liberty, or in defence of a government supposed to guaranty the well-being of the state and the rights of the people. They are rendered inevitable by the mad attempt to force on a nation a constitution of government foreign to the national constitution, or repugnant to the national tastes, interests, habits, convictions, or whole interior life. The repressive policy, adopted to a certain extent by nearly all European governments, grows out of the madness of a portion of the people of the several states in seeking to force upon the nation an anti-national constitution. The sovereigns may not be very wise, but they are wiser, more national, more patriotic than the mad theorists who seek to revolutionize the state and establish a government that has no hold in the national traditions, the national character, or the national life; and the statesman, the patriot, the true friend of liberty sympathizes with the national authorities, not with the mad theorists and revolutionists. The right of a nation to change its form of government, and its magistrates or representatives, by whatever name called, is incontestable. Hence the French constitution of 1789, which involved that of 1793, was not illegal, for though accompanied by some irregularities, it was adopted by the manifest will of the nation, and consented to by all orders in the state. Not its legality but its wisdom is to be questioned, together with the false and dangerous theories of government which dictated it. There is no compact or mutual stipulation between the state and the government. The state, under God, is sovereign, and ordains and establishes the government, instead of making a contract, a bargain, or covenant, with it. The common democratic doctrine on this point is right, if by people is understood the organic people attached to a sovereign domain, not the people as individuals or as a floating or nomadic multitude. By people in the political sense, Cicero, and St. Augustine after him, understood the people as the republic, organized in reference to the common or public good. With this understanding, the sovereignty persists in the people, and they retain the supreme authority over the government. The powers delegated are still the powers of the sovereign delegating them, and may be modified, altered, or revoked, as the sovereign judges proper. The nation does not, and cannot abdicate or delegate away its own sovereignty, for sovereign it is, and cannot but be, so long as it remains a nation not subjected to another nation. By the imperial constitution of the French government, the imperial power is vested in Napoleon III., and made hereditary in his family, in the male line of his legitimate descendants. This is legal, but the nation has not parted with its sovereignty or bound itself by contract forever to a Napoleonic dynasty. Napoleon holds the imperial power "by the grace of God and the will of the nation," which means simply that he holds his authority from God, through the French people, and is bound to exercise it according to the law of God and the national will. The nation is as competent to revoke this constitution as the legislature is to repeal any law it is competent to enact, and in doing so breaks no contract, violates no right, for Napoleon and his descendants hold their right to the imperial throne subject to the national will from which it is derived. In case the nation should revoke the powers delegated, he or they would have no more valid claim to the throne than have the Bourbons, whom the nation has unmistakably dismissed from its service. The only point here to be observed is, that the change must be by the nation itself, in its sovereign capacity; not by a mob, nor by a part of the nation conspiring, intriguing, or rebelling, without any commission from the nation. The first Napoleon governed by a legal title, but he was never legally dethroned, and the government of the Bourbons, whether of the elder branch or the younger, was never a legal government, for the Bourbons had lost their original rights by the election of the first Napoleon, and never afterwards had the national will in their favor. The republic of 1848 was legal, in the sense that the nation acquiesced in it as a temporary necessity; but hardly anybody believed in it or wanted it, and the nation accepted it as a sort of locum tenens, rather than willed or ordained it. Its overthrow by the coup d'etat may not be legally defensible, but the election of Napoleon III. condoned the illegality, if there was any, and gave the emperor a legal title, that no republican, that none but a despot or a no-government man can dispute. As the will of the nation, in so far as it contravenes not the law of God or the law of nature, binds every individual of the nation, no individual or number of individuals has, or can have, any right to conspire against him, or to labor to oust him from his place, till his escheat has been pronounced by the voice of the nation. The state, in its sovereign capacity, willing it, is the only power competent to revoke or to change the form and constitution of the imperial government. The same must be said of every nation that has a lawful government; and this, while it preserves the national sovereignty, secures freedom of progress, condemns all sedition, conspiracy, rebellion, revolution, as does the Christian law itself. CHAPTER IX. THE UNITED STATES Sovereignty, under God, inheres in the organic people, or the people as the republic; and every organic people fixed to the soil, and politically independent of every other people, is a sovereign people, and, in the modern sense, an independent sovereign nation. Sovereign states may unite in an alliance, league, or confederation, and mutually agree to exercise their sovereign powers or a portion of them in common, through a common organ or agency; but in this agreement they part with none of their sovereignty, and each remains a sovereign state or nation as before. The common organ or agency created by the convention is no state, is no nation, has no inherent sovereignty, and derives all its vitality and force from the persisting sovereignty of the states severally that have united in creating it. The agreement no more affects the sovereignty of the several states entering into it, than does the appointment of an agent affect the rights and powers of the principal. The creature takes nothing from the Creator, exhausts not, lessens not his creative energy, and it is only by his retaining and continuously exerting his creative power that the creature continues to exist. An independent state or nation may, with or without its consent, lose its sovereignty, but only by being merged in or subjected to another. Independent sovereign states cannot by convention, or mutual agreement, form themselves into a single sovereign state, or nation. The compact, or agreement, is made by sovereign states, and binds by virtue of the sovereign power of each of the contracting parties. To destroy that sovereign power would be to annul the compact, and render void the agreement. The agreement can be valid and binding only on condition that each of the contracting parties retains the sovereignty that rendered it competent to enter into the compact, and states that retain severally their sovereignty do not form a single sovereign state or nation. The states in convention cannot become a new and single sovereign state, unless they lose their several sovereignty, and merge it in the new sovereignty; but this they cannot do by agreement, because the moment the parties to the agreement cease to be sovereign, the agreement, on which alone depends the new sovereign state, is vacated, in like manner as a contract is vacated by the death of the contracting parties. That a nation may voluntarily cede its sovereignty is frankly admitted, but it can cede it only to something or somebody actually existing, for to cede to nothing and not to cede is one and the same thing. They can part with their own sovereignty by merging themselves in another national existence, but not by merging themselves in nothing; and, till they have parted with their own sovereignty, the new sovereign state does not exist. A prince can abdicate his power, because by abdicating he simply gives back to the people the trust he had received from them; but a nation cannot, save by merging itself in another. An independent state not merged in another, or that is not subject to another, cannot cease to be a sovereign nation, even if it would. That no sovereign state can be formed by agreement or compact has already been shown in the refutation of the theory of the origin of government in convention, or the so-called social compact. Sovereign states are as unable to form themselves into a single sovereign state by mutual compact as are the sovereign individuals imagined by Rousseau. The convention, either of sovereign states or of sovereign individuals, with the best will in the world, can form only a compact or agreement between sovereigns, and an agreement or compact, whatever its terms or conditions, is only an alliance, a league, or a confederation, which no one can pretend is a sovereign state, nation, or republic. The question, then, whether the United States are a single sovereign state or nation, or a confederacy of independent sovereign states depends on the question whether the American people originally existed as one people or as several independent states. Mr. Jefferson maintains that before the convention of 1787 they existed as several independent sovereign states, but that since that convention, or the ratification of the constitution it proposed, they exist as one political people in regard to foreign nations, and several sovereign states in regard to their internal and domestic relations. Mr. Webster concedes that originally the States existed as severally sovereign states, but contends that by ratifying the constitution they have been made one sovereign political people, state, or nation, and that the General government is a supreme national government, though with a reservation in favor of State rights. But both are wrong. If the several States of the Union were severally sovereign states when they met in the convention, they are so now; and the constitution is only an agreement or compact between sovereigns, and the United States are, as Mr. Calhoun maintained, only a confederation of sovereign states, and not a single state or one political community. But if the sovereignty persists in the States severally, any State, saving its faith, may whenever it chooses to do so, withdraw from the Union, absolve its subjects from all obligation to the Federal authorities, and make it treason in them to adhere to the Federal government. Secession is, then, an incontestable right; not a right held under the constitution or derived from the convention but a right held prior to it, independently of it, inherent in the State sovereignty, and inseparable from it. The State is bound by the constitution of the Union only while she is in it, and is one of the States united. In ratifying the constitution she did not part with her sovereignty, or with any portion of it, any more than France has parted with her sovereignty, and ceased to be an independent sovereign nation, by vesting the imperial power in Napoleon III. and his legitimate heirs male. The principal parts not with his power to his agent, for the agent is an agent only by virtue of the continued power of the principal. Napoleon is emperor by the will of the French people, and governs only by the authority of the French nation, which is as competent to revoke the powers it has conferred on him, when it judges proper, as it was to confer them. The Union exists and governs, if the States are sovereign, only by the will of the State, and she is as competent to revoke the powers she has delegated as she was to delegate them. The Union, as far as she is concerned, is her creation, and what she is competent to make she is competent to unmake. In seceding or withdrawing from the Union a State may act very unwisely, very much against her own interests and the interests of the other members of the confederacy; but, if sovereign, she in doing so only exercises her unquestionable right. The other members may regret her action, both for her sake and their own, but they cannot accuse her or her citizens of disloyalty in seceding, nor of rebellion, if in obedience to her authority they defend their independence by force of arms against the Union. Neither she nor they, on the supposition, ever owed allegiance to the Union. Allegiance is due from the citizen to the sovereign state, but never from a sovereign state or from its citizens to any other sovereign state. While the State is in the Union the citizen owes obedience to the United States, but only because his State has, in ratifying the Federal constitution, enacted that it and all laws and treaties made under it shall be law within her territory. The repeal by the State of the act of ratification releases the citizen from the obligation even of obedience, and renders it criminal for him to yield it without her permission. It avails nothing, on the hypothesis of the sovereignty of the States as distinguished from that of the United States, to appeal to the language or provisions of the Federal constitution. That constitutes the government, not the state or the sovereign. It is ordained by the sovereign, and if the States were severally independent and sovereign states, that sovereign is the States severally, not the States united. The constitution is law for the citizens of a State only so long as the State remains one of the United States. No matter, then, how clear and express the language, or stringent the provisions of the constitution, they bind only the citizens of the States that enact the constitution. The written constitution is simply a compact, and obliges only while the compact is continued by the States, each for itself. The sovereignty of the United States as a single or political people must be established before any thing in the constitution can be adduced as denying the right of secession. That this doctrine would deprive the General government of all right to enforce the laws of the Union on a State that secedes, or the citizens thereof, is no doubt true; that it would weaken the central power and make the Union a simple voluntary association of states, no better than a rope of sand, is no less true; but what then? It is simply saying that a confederation is inferior to a nation, and that a federal government lacks many of the advantages of a national government. Confederacies are always weak in the centre, always lack unity, and are liable to be dissolved by the influence of local passions, prejudices, and interests. But if the United States are a confederation of states or nations, not a single nation or sovereign state, then there is no remedy. If the Anglo-American colonies, when their independence of Great Britain was achieved and acknowledged, were severally sovereign states, it has never since been in their power to unite and form a single sovereign state, or to form themselves into one indivisible sovereign nation. They could unite only by mutual agreement, which gives only a confederation, in which each retains its own sovereignty, as two individuals, however closely united, retain each his own individuality. No sovereignty is of conventional origin, and none can emerge from the convention that did not enter it. Either the states are one sovereign people or they are not. If they are not, it is undoubtedly a great disadvantage; but a disadvantage that must be accepted, and submitted to without a murmur. Whether the United States are one sovereign people or only a confederation is a question of very grave importance. If they are only a confederation of states--and if they ever were severally sovereign states, only a confederation they certainly are--state secession is an inalienable right, and the government has had no right to make war on the secessionists as rebels, or to treat them, when their military power is broken, as traitors, or disloyal persons. The honor of the government, and of the people who have sustained it, is then deeply compromised. What then is the fact? Are the United States politically one people, nation, state, or republic, or are they simply independent sovereign states united in close and intimate alliance, league, or federation, by a mutual pact or agreement? Were the people of the United States who ordained and established the written constitution one people, or were they not? If they were not before ordaining and establishing the government, they are not now; for the adoption of the constitution did not and could not make them one. Whether they are one or many is then simply a question of fact, to be decided by the facts in the case, not by the theories of American statesmen, the opinion of jurists, or even by constitutional law itself. The old Articles of Confederation and the later Constitution can serve here only as historical documents. Constitutions and laws presuppose the existence of a national sovereign from which they emanate, and that ordains them, for they are the formal expression of a sovereign will. The nation must exist as an historical fact, prior to the possession or exercise of sovereign power, prior to the existence of written Constitutions and laws of any kind, and its existence must be established before they can be recognized as having any legal force or vitality. The existence of any nation, as an independent sovereign nation, is a purely historical fact, for its right to exist as such is in the simple fact that it does so exist. A nation de facto is a nation de jure, and when we have ascertained the fact, we have ascertained the right. There is no right in the case separate from the fact--only the fact must be really a fact. A people hitherto a part of another people, or subject to another sovereign, is not in fact a nation, because they have declared themselves independent, and have organized a government, and are engaged in what promises to be a successful struggle for independence. The struggle must be practically over; the former sovereign must have practically abandoned the effort to reduce them to submission, or to bring them back under his authority, and if he continues it, does it as a matter of mere form; the postulant must have proved his ability to maintain civil government, and to fulfil within and without the obligations which attach to every civilized nation, before it can be recognized as an independent sovereign nation; because before it is not a fact that it is a sovereign nation. The prior sovereign, when no longer willing or able to vindicate his right, has lost it, and no one is any longer bound to respect it, for humanity demands not martyrs to lost causes. This doctrine may seem harsh, and untenable even, to those sickly philanthropists who are always weeping over extinct or oppressed nationalities; but nationality in modern civilization is a fact, not a right antecedent to the fact. The repugnance felt to this assertion arises chiefly from using the word nation sometimes in a strictly political sense, and sometimes in its original sense of tribe, and understanding by it not simply the body politic, but a certain relation of origin, family, kindred, blood, or race. But God has made of one blood, or race, all the nations of men; and, besides, no political rights are founded by the law of nature on relations of blood, kindred, or family. Under the patriarchal or tribal system, and, to some extent, under feudalism, these relations form the basis of government, but they are economical relations rather than civil or political, and, under Christian and modern civilization, are restricted to the household, are domestic relations, and enter not the state or body politic, except by way of reminiscence or abuse. They are protected by the state, but do not found or constitute it. The vicissitudes of time, the revolutions of states and empires, migration, conquest, and intermixture of families and races, have rendered it impracticable, even if it were desirable, to distribute people into nations according to their relations of blood or descent. There is no civilized nation now existing that has been, developed from a common ancestor this side of Adam, and the most mixed are the most civilized. The nearer a nation approaches to a primitive people of pure unmixed blood, the farther removed it is from civilization. All civilized nations are political nations, and are founded in the fact, not on rights antecedent to the fact. A hundred or more lost nationalities went to form the Roman empire, and who can tell us how many layers of crushed nationalities, superposed one upon another, serve for the foundation of the present French, English, Russian, Austrian, or Spanish nationalities? What other title to independence and sovereignty, than the fact, can you plead in behalf of any European nation? Every one has absorbed and extinguished--no one can say how many--nationalities, that once had as good a right to be as it has, or can have. Whether those nationalities have been justly extinguished or not, is no question for the statesman; it is the secret of Providence. Failure in this world is not always a proof of wrong; nor success, of right. The good is sometimes overborne, and the bad sometimes triumphs; but it is consoling, and even just, to believe that the good oftener triumphs than the bad. In the political order, the fact, under God, precedes the law. The nation holds not from the law, but the law holds from the nation. Doubtless the courts of every civilized nation recognize and apply both the law of nature and the law of nations, but only on the ground that they are included, or are presumed to be included, in the national law, or jurisprudence. Doubtless, too, the nation holds from God, under the law of nature, but only by virtue of the fact that it is a nation; and when it is a nation dependent on no other, it holds from God all the rights and powers of any independent sovereign nation. There is no right behind the fact needed to legalize the fact, or to put the nation that is in fact a nation in possession of full national rights. In the case of a new nation, or people, lately an integral part of another people, or subject to another people@ the right of the prior sovereign must be extinguished indeed, but the extinction of that right is necessary to complete the fact, which otherwise would be only an initial, inchoate fact, not a fait accompli. But that right ceases when its claimant, willingly or unwillingly, formally or virtually, abandons it; and he does so when he practically abandons the struggle, and shows no ability or intention of soon renewing it with any reasonable prospect of success. The notion of right, independent of the fact as applied to sovereignty, is founded in error. Empty titles to states and kingdoms are of no validity. The sovereignty is, under God, in the nation and the title and the possession are inseparable. The title of the Palaeologi to the Roman Empire of the East, of the king of Sicily, the king of Sardinia, or the king of Spain--for they are all claimants--to the kingdom of Jerusalem founded by Godfrey and his crusaders, of the Stuarts to the thrones of England, Ireland, and Scotland, or of the Bourbons to the throne of France, are vacated and not worth the parchment on which they are engrossed. The contrary opinion, so generally entertained, belongs to barbarism, not to civilization. It is in modern society a relic of feudalism, which places the state in the government, and makes the government a private estate--a private, and not a public right--a right to govern the public, not a right to govern held from or by the public. The proprietor may be dispossessed in fact of his estate by violence, by illegal or unjust means, without losing his right, and another may usurp it, occupy it, and possess it in fact without acquiring any right or legal title to it. The man who holds the legal title has the right to oust him and re-enter upon his estate whenever able to do so. Here, in the economical order, the fact and the right are distinguishable, and the actual occupant may be required to show his title-deeds. Holding sovereignty to be a private estate, the feudal lawyers very properly distinguish between governments de facto and governments de jure, and argue very logically that violent dispossession of a prince does not invalidate his title. But sovereignty, it has been shown, is not in the government, but in the state, and the state is inseparable from the public domain. The people organized and held by the domain or national territory, are under God the sovereign nation, and remain so as long as the nation subsists without subjection to another. The government, as distinguished from the state or nation, has only a delegated authority, governs only by a commission from the nation. The revocation of the commission vacates, its title and extinguishes its rights. The nation is always sovereign, and every organic people fixed to the soil, and actually independent of every other, is a nation. There can then be no independent nation de facto that is not an independent nation de jure, nor de jure that is not de facto. The moment a people cease to be an independent nation in fact, they cease to be sovereign, and the moment they become in fact an independent nation, they are so of right. Hence in the political order the fact and the right are born and expire together; and when it is proved that a people, are in fact an independent nation, there is no question to be asked as to their right to be such nation. In the case of the United States there is only the question of fact. If they are in fact one people they are so in right, whatever the opinions and theories of statesmen, or even the decisions of courts; for the courts hold from the national authority, and the theories and opinions of statesmen may be erroneous. Certain it is that the States in the American Union have never existed and acted as severally sovereign states. Prior to independence, they were colonies under the sovereignty of Great Britain, and since independence they have existed and acted only as states united. The colonists, before separation and independence, were British subjects, and whatever rights the colonies had they held by charter or concession from the British crown. The colonists never pretended to be other than British subjects, and the alleged ground of their complaint against the mother country was not that she had violated their natural rights as men, but their rights as British subjects--rights, as contended by the colonists, secured by the English constitution to all Englishmen or British subjects. The denial to them of these common rights of Englishmen they called tyranny, and they defended themselves in throwing off their allegiance to George III., on the ground that he had, in their regard, become a tyrant, and the tyranny of the prince absolves the subject from his allegiance. In the Declaration of Independence they declared themselves independent states indeed, but not severally independent. The declaration was not made by the states severally, but by the states jointly, as the United States. They unitedly declared their independence; they carried on the war for independence, won it, and were acknowledged by foreign powers and by the mother country as the United States, not as severally independent sovereign states. Severally they have never exercised the full powers of sovereign states; they have had no flag--symbol of sovereignty--recognized by foreign powers, have made no foreign treaties, held no foreign relations, had no commerce foreign or interstate, coined no money, entered into no alliances or confederacies with foreign states or with one another, and in several respects have been more restricted in their powers in the Union than they were as British colonies. Colonies are initial or inchoate states, and become complete states by declaring and winning their independence; and if the English colonies, now the United States, had separately declared and won their independence, they would unquestionably have become separately independent states, each invested by the law of nature with all the rights and powers of a sovereign nation. But they did not do this. They declared and won their independence jointly, and have since existed and exercised sovereignty only as states united, or the United States, that is, states sovereign in their union, but not in their separation. This is of itself decisive of the whole question. But the colonists have not only never exercised the full powers of sovereignty save as citizens of states united, therefore as one people, but they were, so far as a people at all, one people even before independence. The colonies were all erected and endowed with their rights and powers by one and the same national authority, and the colonists were subjects of one and the same national sovereign. Mr. Quincy Adams, who almost alone among our prominent statesmen maintains the unity of the colonial people, adds indeed to their subjection to the same sovereign authority, community of origin, of language, manners, customs, and law. All these, except the last, or common law, may exist without national unity in the modern political sense of the term nation. The English common law was recognized by the colonial courts, and in force in all the colonies, not by virtue of colonial legislation, but by virtue of English authority, as expressed in English jurisprudence. The colonists were under the Common Law, because they were Englishmen, and subjects of the English sovereign. This proves that they were really one people with the English people, though existing in a state of colonial dependence, and not a separate people having nothing politically in common with them but in the accident of having the same royal person for their king. The union with the mother country was national, not personal, as was the union existing between England and Hanover, or that still existing between the empire of Austria, formerly Germany, and the kingdom of Hungary; and hence the British parliament claimed, and not illegally, the right to tax the colonies for the support of the empire, and to bind them in all cases whatsoever--a claim the colonies themselves admitted in principle by recognizing and observing the British navigation laws. The people of the several colonies being really one people before independence, in the sovereignty of the mother country, must be so still, unless they have since, by some valid act, divided themselves or been divided into separate and independent states. The king, say the jurists, never dies, and the heralds cry, "The king is dead! Live the king!" Sovereignty never lapses, is never in abeyance, and the moment it ceases in one people it is renewed in another. The British sovereignty ceased in the colonies with independence, and the American took its place. Did the sovereignty, which before independence was in Great Britain, pass from Great Britain to the States severally, or to the States united? It might have passed to them severally, but did it? There is no question of law or antecedent right in the case, but a simple question of fact, and the fact is determined by determining who it was that assumed it, exercised it, and has continued to exercise it. As to this there is no doubt. The sovereignty as a fact has been assumed and exercised by the United States, the States united, and never by the States separately or severally. Then as a fact the sovereignty that before independence was in Great Britain, passed, on independence to the States united, and reappears in all its vigor in the United States, the only successor to Great Britain known to or recognized by the civilized world. As the colonial people were, though distributed in distinct colonies, still one people, the people of the United States, though distributed into distinct and mutually independent States, are yet one sovereign people, therefore a sovereign state or nation, and not a simple league or confederacy of nations. There is no doubt that all the powers exercised by the General Government, though embracing all foreign relations and all general interests and relations of all the States, might have been exercised by it under the authority of a mutual compact of the several States, and practically the difference between the compact theory and the national view would be very little, unless in cases like that of secession. On the supposition that the American people are one political people, the government would have the right to treat secession, in the sense in which the seceders understand it, as rebellion, and to suppress it by employing all the physical force at its command; but on the compact theory it would have no such right. But the question now under discussion turns simply on what has been and is the historical fact. Before the States could enter into the compact and delegate sovereign powers to the Union, they must have severally possessed them. It is historically certain that they did not possess them before independence; they did not obtain them by independence, for they did not severally succeed to the British sovereignty, to which they succeeded only as States united. When, then, and by what means did they or could they become severally sovereign States? The United States having succeeded to the British sovereignty in the Anglo-American colonies, they came into possession of full national sovereignty, and have alone held and exercised it ever since independence became a fact. The States severally succeeding only to the colonies, never held, and have never been competent to delegate sovereign powers. The old Articles of Confederation, it is conceded, were framed on the assumption that the States are severally sovereign; but the several States, at the same time, were regarded as forming one nation, and, though divided into separate States, the people were regarded as one people. The Legislature of New York, as early as 1782, calls for an essential change In the Articles of Confederation, as proved to be inadequate to secure the peace, security, and prosperity of "the nation." All the proceedings that preceded and led to the call of the convention of 1781 were based on the assumption that the people of the United States were one people. The States were called united, not confederated States, even in the very Articles of Confederation themselves, and officially the United States were called "the Union." That the united colonies by independence became united States, and formed really one and only one people, was in the thought, the belief, the instinct of the great mass of the people. They acted as they existed through State as they had previously acted through colonial organization, for in throwing off the British authority there was no other organization through which they could act. The States, or people of the States, severally sent their delegates to the Congress of the United States, and these delegates adopted the rule of voting in Congress by States, a rule that might be revived without detriment to national unity. Nothing was more natural, then, than that Congress, composed of delegates elected or appointed by States, should draw up articles of confederation rather than articles of union, in order, if for no other reason, to conciliate the smaller States, and to prevent their jealousy of the larger States such as Virginia, Massachusetts, and Pennsylvania. Moreover, the Articles of Confederation were drawn up and adopted during the transition from colonial dependence to national independence. Independence was declared in 1776, but it was not a fact till 1782, when the preliminary treaty acknowledging it was signed at Paris. Till then the United States were not an independent nation; they were only a people struggling to become an independent nation. Prior to that preliminary treaty, neither the Union nor the States severally were sovereign. The articles were agreed on in Congress in 1777, but they were not ratified by all the States till May, 1781, and in 1782 the movement was commenced in the Legislature of New York for their amendment. Till the organization under the constitution ordained by the people of the United States in 1787, and which went into operation in 1789, the United States had in reality only a provisional government, and it was not till then that the national government was definitively organized, and the line of demarcation between the General Government and the particular State governments was fixed. The Confederation was an acknowledged failure, and was rejected by the American people, precisely because it was not in harmony with the unwritten or Providential constitution of the nation; and it was not in harmony with that constitution precisely because it recognized the States as severally sovereign, and substituted confederation for union. The failure of confederation and the success of union are ample proofs of the unity of the American nation. The instinct of unity rejected State sovereignty in 1787 as it did in 1861. The first and the last attempt to establish State sovereignty have failed, and the failure vindicates the fact that the sovereignty is in the States united, not in the States severally. CHAPTER X CONSTITUTION OF THE UNITED STATES The constitution of the United States is twofold, written and unwritten, the constitution of the people and the constitution of the government. The written constitution is simply a law ordained by the nation or people instituting and organizing the government; the unwritten constitution is the real or actual constitution of the people as a state or sovereign community, and constituting them such or such a state. It is Providential, not made by the nation, but born with it. The written constitution is made and ordained by the sovereign power, and presupposes that power as already existing and constituted. The unwritten or Providential constitution of the United States is peculiar, and difficult to understand, because incapable of being fully explained by analogies borrowed from any other state historically known, or described by political philosophers. It belongs to the Graeco-Roman family, and is republican as distinguished from despotic constitutions, but it comes under the head of neither monarchical nor aristocratic, neither democratic nor mixed constitutions, and creates a state which is neither a centralized state nor a confederacy. The difficulty of understanding it is augmented by the peculiar use under it of the word state, which does not in the American system mean a sovereign community or political society complete in itself, like France, Spain, or Prussia, nor yet a political society subordinate to another political society and dependent on it. The American States are all sovereign States united, but, disunited, are no States at all. The rights and powers of the States are not derived from the United States, nor the rights and powers of the United States derived from the States. The simple fact is, that the political or sovereign people of the United States exists as united States, and only as united States. The Union and the States are coeval, born together, and can exist only together. Separation is dissolution--the death of both. The United States are a state, a single sovereign state; but this single sovereign state consists in the union and solidarity of States instead of individuals. The Union is in each of the States, and each of the States is in the Union. It is necessary to distinguish in the outset between the United States and the government of the United States, or the so-called Federal government, which the convention refused, contrary to its first intention to call the national government. That government is not a supreme national government, representing all the powers of the United States, but a limited government, restricted by its constitution to certain specific relations and interests. The United States are anterior to that government, and the first question to be settled relates to their internal and inherent Providential constitution as one political people or sovereign state. The written constitution, in its preamble, professes to be ordained by "We, the people of the United States." Who are this people? How are they constituted, or what the mode and conditions of their political existence? Are they the people of the States severally? No; for they call themselves the people of the United States. Are they a national people, really existing outside and independently of their organization into distinct and mutually independent States? No; for they define themselves to be the people of the United States. If they had considered themselves existing as States only, they would have said "We, the States," and if independently of State organization, they would have said "We, the people," do ordain, &c. The key to the mystery is precisely in this appellation United States, which is not the name of the country, for its distinctive name is America, but a name expressive of its political organization. In it there are no sovereign people without States, and no States without union, or that are not united States. The term united is not part of a proper name, but is simply an adjective qualifying States, and has its full and proper sense. Hence while the sovereignty is and must be in the States, it is in the States united, not in the States severally, precisely as we have found the sovereignty of the people is in the people collectively or as society, not in the people individually. The life is in the body, not in the members, though the body could not exist if it had no members; so the sovereignty is in the Union, not in the States severally; but there could be no sovereign union without the States, for there is no union where there is nothing united. This is not a theory of the constitution, but the constitutional fact itself. It is the simple historical fact that precedes the law and constitutes the law-making power. The people of the United States are one people, as has already been proved: they were one people, as far as a people at all, prior to independence, because under the same Common Law and subject to the same sovereign, and have been so since, for as united States they gained their independence and took their place among sovereign nations, and as united States they have possessed and still possess the government. As their existence before independence in distinct colonies did not prevent their unity, so their existence since in distinct States does not hinder them from being one people. The States severally simply continue the colonial organizations, and united they hold the sovereignty that was originally in the mother country. But if one people, they are one people existing in distinct State organizations, as before independence they were one people existing in distinct colonial organizations. This is the original, the unwritten, and Providential constitution of the people of the United States. This constitution is not conventional, for it existed before the people met or could meet in convention. They have not, as an independent sovereign people, either established their union, or distributed themselves into distinct and mutually independent States. The union and the distribution, the unity and the distinction, are both original in their constitution, and they were born United States, as much and as truly so as the son of a citizen is born a citizen, or as every one born at all is born a member of society, the family, the tribe, or the nation. The Union and the States were born together, are inseparable in their constitution, have lived and grown up together; no serious attempt till the late secession movement has been made to separate them; and the secession movement, to all persons who knew not the real constitution of the United States, appeared sure to succeed, and in fact would have succeeded if, as the secessionists pretended, the Union had been only a confederacy, and the States had been held together only by a conventional compact, and not by a real and living bond of unity. The popular instinct of national unity, which seemed so weak, proved to be strong enough to defeat the secession forces, to trample out the confederacy, and maintain the unity of the nation and the integrity of its domain. The people can act only as they exist, as they are, not as they are not. Existing originally only as distributed in distinct and mutually independent colonies, they could at first act only through their colonial organizations, and afterward only through their State organizations. The colonial people met in convention, in the person of representatives chosen by colonies, and after independence in the person of representatives chosen by States. Not existing outside of the colonial or State organizations, they could not act outside or independently of them. They chose their representatives or delegates by colonies or States, and called at first their convention a Congress; but by an instinct surer than their deliberate wisdom, they called it not the Congress of the confederate, but of the United States, asserting constitutional unity as well as constitutional multiplicity. It is true, in their first attempt to organize a general government, they called the constitution they devised Articles of Confederation, but only because they had not attained to full consciousness of themselves; and that they really meant union, not confederation, is evident from their adopting, as the official style of the nation or new power, united, not confederate States. That the sovereignty vested in the States united, and was represented in some sort by the Congress, is evident from the fact that the several States, when they wished to adopt State constitutions in place of colonial charters, felt not at liberty to do so without asking and obtaining the permission of Congress, as the elder Adams informs us in his Diary, kept at the time; that is, they asked and obtained the equivalent of what has since, in the case of organizing new States, been called an "enabling act." This proves that the States did not regard themselves as sovereign States out of the Union, but as completely sovereign only in it. And this again proves that the Articles of Confederation did not correspond to the real, living constitution of the people. Even then it was felt that the organization and constitution of a State in the Union could be regularly effected only by the permission of Congress; and no Territory can, it is well known, regularly organize itself as a State, and adopt a State constitution, without an enabling act by Congress, or its equivalent. New States, indeed, have been organized and been admitted into the Union without an enabling act of Congress; but the case of Kansas, if nothing else, proves that the proceeding is irregular, illicit, invalid, and dangerous. Congress, of course, can condone the wrong and validate the act, but it were better that the act should be validly done, and that there should be no wrong to condone. Territories have organized as States, adopted State constitutions, and instituted State governments under what has been called "squatter sovereignty;" but such sovereignty has no existence, because sovereignty is attached to the domain; and the domain is in the United States. It is the offspring of that false view of popular sovereignty which places it in the people personally or generically, irrespective of the domain, which makes sovereignty a purely personal right, not a right fixed to the soil, and is simply a return to the barbaric constitution of power. In all civilized nations, sovereignty is inseparable from the state, and the state is inseparable from the domain. The will of the people, unless they are a state, is no law, has no force, binds nobody, and justifies no act. The regular process of forming and admitting new States explains admirably the mutual relation of the Union and the several States. The people of a Territory belonging to the United States or included in the public domain not yet erected into a State and admitted into the Union, are subjects of the United States, without any political rights whatever, and, though a part of the population, are no part of the sovereign people of the United States. They become a part of that people, with political rights and franchises, only when they are erected into a State, and admitted into the Union as one of the United States. They may meet in convention, draw up and adopt a constitution declaring or assuming them to be a State, elect State officers, senators, and representatives in the State legislature, and representatives and senators in Congress, but they are not yet a State, and are, as before, under the Territorial government established by the General Government. It does not exist as a State till recognized by Congress and admitted into the Union. The existence of the State, and the rights and powers of the people within the State, depend on their being a State in the Union, or a State united. Hence a State erected on the national domain, but itself outside of the Union, is not an independent foreign State, but simply no State at all, in any sense of the term. As there is no union outside of the States, so is there no State outside of the Union; and to be a citizen either of a State or of the United States, it is necessary to be a citizen of a State, and of a State in the Union. The inhabitants of Territories not yet erected into States are subjects, not citizens--that is, not citizens with political rights. The sovereign people are not the people outside of State organization, nor the people of the States severally, but the distinct people of the several States united, and therefore most appropriately called the people of the United States. This is the peculiarity of the American constitution and is substantially the very peculiarity noted and dwelt upon by Mr. Madison in his masterly letter to Edward Everett, published in the "North American Review," October, 1830. "I In order to understand the true character of the constitution of the United States," says Mr. Madison, "the error, not uncommon, must be avoided of viewing it through the medium either of a consolidated government or of a confederated government, whilst it is neither the one nor the other, but a mixture of both. And having, in no model, the similitudes and analogies applicable to other systems of government, it must, more than any other, be its own interpreter, according to its text and the facts in the case. "From these it will be seen that the characteristic peculiarities of the constitution are: 1. The mode of its formation. 2. The division of the supreme powers of government between the States in their united capacity and the States in their individual capacities. "1. It was formed not by the governments of the component States, as the Federal Government, for which it was substituted, was formed; nor was it formed by a majority of the people of the United States as a single community, in the manner of a consolidated government. It was formed by the States; that is, by the people in each of the States, acting in their highest sovereign capacity, and formed consequently by the same authority which formed the State constitution. "Being thus derived from the same source as the constitutions of the States, it has within each State the same authority as the constitution of the State, and is as much a constitution in the strict sense of the term, within its prescribed sphere, as the constitutions of the States are within their respective spheres; but with this obvious and essential difference, that, being a compact among the States in their highest capacity, and constituting the people thereof one people for certain purposes, it cannot be altered or annulled at the will of the States individually, as the constitution of a State may be at its individual will. "2. And that it divides the supreme powers of government between the government of the United States and the governments of the individual States, is stamped on the face of the instrument; the powers of war and of taxation, of commerce and treaties, and other enumerated powers vested in the government of the United States, are of high and sovereign a character as any of the powers reserved to the State governments." Mr. Jefferson, Mr. Webster, Chancellor Kent, Judge Story, and nearly all the old Republicans, and even the old Federalists, on the question as to what is the actual constitution of the United States, took substantially the same view; but they all, as well as Mr. Madison himself, speak of the written constitution, which on their theory has and can have only a conventional value. Mr. Madison evidently recognizes no constitution of the people prior to the written constitution, from which the written constitution, or the constitution of the government, derives all its force and vitality. The organization of the American people, which he knew well--no man better,--and which he so justly characterizes, he supposes to have been deliberately formed by the people themselves, through the convention--not given them by Providence as their original and inherent constitution. But this was merely the effect of the general doctrine which he had adopted, in common with nearly all his contemporaries, of the origin of the state in compact, and may be eliminated from his view of what the constitution actually is, without affecting that view itself. Mr. Madison lays great stress on the fact that though the constitution of the Union was formed by the States, it was formed, not by the governments, but by the people of the several States; but this makes no essential difference, if the people are the people of the States, and sovereign in their severalty, and not in their union. Had it been formed by the State governments with the acquiescence of the people, it would have rested on as high authority as if formed by the people of the State in convention assembled. The only difference is, that if the State ratified it by the legislature, she could abrogate it by the legislature; if in convention, she could abrogate it only in convention. Mr. Madison, following Mr. Jefferson, supposes the constitution makes the people of the several States one people for certain specific purposes, and leaves it to be supposed that in regard to all other matters, or in all other relations, they are sovereign; and hence he makes the government a mixture of a consolidated government and a confederated government, but neither the one nor the other exclusively. Say the people of the United States were one people in all respects, and under a government which is neither a consolidated nor a confederated government, nor yet a mixture of the two, but a government in which the powers of government are divided between a general government and particular governments, each emanating from the same source, and you will have the simple fact, and precisely what Mr. Madison means, when is eliminated what is derived from his theory of the origin of government in compact. It is this theory of the conventional origin of the constitution, and which excludes the Providential or real constitution of the people, that has misled him and so many other eminent statesmen and constitutional lawyers. The convention did not create the Union or unite the States, for it was assembled by the authority of the United States who were present in it. The United States or Union existed before the convention, as the convention itself affirms in declaring one of its purposes to be "to provide for a more perfect union." If there had been no union, it could not and would not have spoken of providing for a more perfect union, but would have stated its purpose to be to create or form a union. The convention did not form the Union, nor in fact provide for a more perfect union; it simply provided for the more perfect representation or expression in the General government of the Union already existing. The convention, in common with the statesmen at the time, recognized no unwritten or Providential constitution of a people, and regarded the constitution of government as the constitution of the state, and consequently sometimes put the state for the government. In interpreting its language, it is necessary to distinguish between its act and its theory. Its act is law, its theory is not. The convention met, among other things, to organize a government which should more perfectly represent the union of the States than did the government created by the Articles of Confederation. The convention, certainly, professes to grant or concede powers to the United States, and to prohibit powers to the States; but it simply puts the state for the government. The powers of the United States are, indeed, grants or trusts, but from God through the law of nature, and are grants, trusts, or powers always conceded to every nation or sovereign people. But none of them are grants from the convention. The powers the convention grants or concedes to the United States are powers granted or conceded by the United States to the General government it assembled to organize and establish, which, as it extends over the whole population and territory of the Union, and, as the interests it is charged with relate to all the States in common, or to the people as a whole, is with no great impropriety called the government of the United States, in contradistinction from the State governments, which have each only a local jurisdiction. But the more exact term is, for the one, the general government, and for the others, particular governments, as having charge only of the particular interests of the State; and the two together constitute the government of the United States, or the complete national government; for neither the General government nor the State government is complete in itself. The convention developed a general government, and prescribed its powers, and fixed their limits and extent, as well as the bounds of the powers of the State or particular governments; but they are the United States assembled in convention that do all this, and, therefore, strictly speaking, no powers are conceded to the United States that they did not previously possess. The convention itself, in the constitution it ordained, defines very clearly from whom the General government holds its powers. It holds them, as we I have seen, from "We, the people of the United States;" not we, the people of the States severally, but of the States united. If it had meant the States severally, it would have said, We, the States; if it had recognized and meant the population of the country irrespective of its organization into particular States, it would have said simply, We, the people. By saying "We, the people of the United States," it placed the sovereign power where it is, in the people of the States united. The convention ordains that the powers not conceded to the General government or prohibited to the particular governments, "are reserved to the States respectively, or to the people." But the powers reserved to the States severally are reserved by order of the United States, and the powers not so reserved are reserved to the people. What people? The first thought is that they are the people of the States severally; for the constitution understands by people the state as distinguished from the state government; but if this had been its meaning in this place, it would have said, "are reserved to the States respectively, or to the people" thereof. As it does not say so, and does not define the people it means, it is necessary to understand by them the people called in the preamble "the people of the United States." This is confirmed by the authority reserved to amend the constitution, which certainly is not reserved to the States severally, but necessarily to the power that ordains the constitution--"We, the people of the United States." No power except that which ordains is or can be competent to amend a constitution of government. The particular mode prescribed by the convention in which the constitution of the government may be amended has no bearing on the present argument, because it is prescribed by the States united, not severally, and the power to amend is evidently reserved, not indeed to the General government, but to the United States; for the ratification by any State or Territory not in the Union counts for nothing. The States united, can, in the way prescribed, give more or less power to the General government, and reserve more or less power to the States individually. The so-called reserved powers are really reserved to the people of the United States, who can make such disposition of them as seems to them good. The conclusion, then, that the General government holds from the States united, not from the States severally, is not invalidated by the fact that its constitution was completed only by the ratification of the States in their individual capacity. The ratification was made necessary by the will of the people in convention assembled; but the convention was competent to complete it and put it in force without that ratification, had it so willed. The general practice under the American system is for the convention to submit the constitution it has agreed on to the people, to be accepted or rejected by a plebiscitum; but such submission, though it may be wise and prudent, is not necessary. The convention is held to be the convention of the people, and to be clothed with the full authority of the sovereign people, and it is in this that it differs from the congress or the legislature. It is not a congress of delegates or ministers who are obliged to act under instructions, to report their acts to their respective sovereigns for approval or rejection; it is itself sovereign, and may do whatever the people themselves can do. There is no necessity for it to appeal to a plebiscitum to complete its acts. That the convention, on the score of prudence, is wise in doing so, nobody questions; but the convention is always competent, if it chooses, to ordain the constitution without appeal. The power competent to ordain the constitution is always competent to change, modify, or amend it. That amendments to the constitution of the government can be adopted only by being proposed by a convention of all the States in the Union, or by being proposed, by a two-thirds vote of both houses of Congress, and ratified by three-fourths of the States, is simply a conventional ordinance, which the convention can change at its pleasure. It proves nothing as it stands but the will of the convention. The term ratification itself, because the term commonly used in reference to treaties between sovereign powers, has been seized on, since sometimes used by the convention, to prove that the constitution emanates from the States severally, and is a treaty or compact between sovereign states, not an organic or fundamental law ordained by a single sovereign will; but this argument is inadmissible, because, as we have just seen, the convention is competent to ordain the constitution without submitting it for ratification, and because the convention uses sometimes the word adopt instead of the word ratify. That the framers of the constitution held it to be a treaty, compact, or agreement among sovereigns, there is no doubt, for they so held in regard to all constitution of government; and there is just as little doubt that they intended to constitute, and firmly believed that they were constituting a real government. Mr. Madison's authority on this point is conclusive. They unquestionably regarded the States, prior to the ratification of the constitution they proposed, as severally sovereign, as they were declared to be by the old Articles of Confederation, but they also believed that all individuals are sovereign prior to the formation of civil society. Yet very few, if any, of them believed that they remained sovereign after the adoption of the constitution; and we may attribute to their belief in the conventional origin of all government,--the almost universal belief of the time among political philosophers,--the little account which they made of the historical facts that prove that the people of the United States were always one people, and that the States never existed as severally sovereign states. The political philosophers of the present day do not generally accept the theory held by our fathers, and it has been shown in these pages to be unsound and incompatible with the essential nature of government. The statesmen of the eighteenth century believed that the state is derived from the people individually, and held that sovereignty is created by the people in convention. The rights and powers of the state, they held, were made up of the rights held by individuals under the law of nature, and which the individuals surrendered to civil society on its formation. So they supposed that independent sovereign states might meet in convention, mutually agree to surrender a portion of their rights, organize their surrendered rights into a real government, and leave the convention shorn, at least, of a portion of their sovereignty. This doctrine crops out everywhere in the writings of the elder Adams, and is set forth with rare ability by Mr. Webster, in his great speech in the Senate against the State sovereignty doctrine of General Hayne and Mr. Calhoun, which won for him the honorable title of Expounder of the Constitution--and expound it he, no doubt, did in the sense of its framers. He boldly concedes that prior to the adoption of the constitution, the people of the United States were severally sovereign states, but by the constitution they were made one sovereign political community or people, and that the States, though retaining certain rights, have merged their several sovereignty in the Union. The subtle mind of Mr. Calhoun, who did not hold that a state can originate in compact, proved to Mr. Webster that his theory could not stand; that, if the States went into the convention sovereign States, they came out of it sovereign States; and that the constitution they formed could from the nature of the case be only a treaty, compact, or agreement between sovereigns. It could create an agency, but not a government. The sovereign States could only delegate the exercise of their sovereign powers, not the sovereign powers themselves. The States could agree to exercise certain specific powers of sovereignty only in common, but the force and vitality of the agreement depended on the States, parties to the agreement retaining respectively their sovereignty. Hence, he maintained that sovereignty, after as before the convention, vested in the States severally. Hence State sovereignty, and hence his doctrine that in all cases that cannot come properly before the Supreme Court of the United States for decision, each State is free to decide for itself, on which he based the right of nullification, or the State veto of acts of Congress whose constitutionality the State denies. Mr. Calhoun was himself no secessionist, but he laid down the premises from which secession is the logical deduction; and large numbers of young men, among the most open, the most generous, and the most patriotic in the country, adopted his premises, without being aware of this fact any more than he himself was, and who have been behind none in their loyalty to the Union, and in their sacrifices to sustain it, in the late rebellion. The formidable rebellion which is now happily suppressed, and which attempted to justify itself by the doctrine of State sovereignty, has thrown, in many minds, new light on the subject, and led them to re-examine the historical facts in the case from a different point of view, to see if Mr. Calhoun's theory is not as unfounded as he had proved Mr. Webster's theory to be. The facts in the case really sustain neither, and both failed to see it: Mr. Calhoun because he had purposes to accomplish which demanded State sovereignty, and Mr. Webster because he examined them in the distorting medium of the theory or understanding of the statesmen of the eighteenth century. The civil war has vindicated the Union, and defeated the armed forces of the State sovereignty men; but it has not refuted their doctrine, and as far as it has had any effect, it has strengthened the tendency to consolidation or centralism. But the philosophy, the theory of government, the understanding of the framers of the constitution, must be considered, if the expression will be allowed, as obiter dicta, and be judged on their merits. What binds is the thing done, not the theory on which it was done, or on which the actors explained their work either to themselves or to others. Their political philosophy, or their political theory, may sometimes affect the phraseology they adopt, but forms no rule for interpreting their work. Their work was inspired by and accords with the historical facts in the case, and is authorized and explained by them. The American people were not made one people by the written constitution, as Mr. Jefferson, Mr. Madison, Mr. Webster, and so many others supposed, but were made so by the unwritten constitution, born with and inherent in them. CHAPTER XI. THE CONSTITUTION--CONTINUED. Providence, or God operating through historical facts, constituted the American people one political or sovereign people, existing and acting in particular communities, organizations, called states. This one people organized as states, meet in convention, frame and ordain the constitution of government, or institute a general government in place of the Continental Congress; and the same people, in their respective State organizations, meet in convention in each State, and frame and ordain a particular government for the State individually, which, in union with the General government, constitutes the complete and supreme government within the States, as the General government, in union with all the particular governments, constitutes the complete and supreme government of the nation or whole country. This is clearly the view taken by Mr. Madison in his letter to Mr. Everett, when freed from his theory of the origin of government in compact. The constitution of the people as one people, and the distinction at the same time of this one people into particular States, precedes the convention, and is the unwritten constitution, the Providential constitution, of the American people or civil society, as distinguished from the constitution of the government, which, whether general or particular, is the ordination of civil society itself. The unwritten constitution is the creation or constitution of the sovereign, and the sovereign providentially constituted constitutes in turn the government, which is not sovereign, but is clothed with just so much and just so little authority as the sovereign wills or ordains. The sovereign in the republican order is the organic people, or State, and is with us the United States, for with us the organic people exist only as organized into States united, which in their union form one compact and indissoluble whole. That is to say, the organic American people do not exist as a consolidated people or state; they exist only as organized into distinct but inseparable States. Each State is a living member of the one body, and derives its life from its union with the body, so that the American state is one body with many members; and the members, instead of being simply individuals, are States, or individuals organized into States. The body consists of many members, and is one body, because the members are all members of it, and members one of another. It does not exist as separate or distinct from the members, but exists in their solidarity or membership one of another. There is no sovereign people or existence of the United States distinguishable from the people or existence of the particular States united. The people of the United States, the state called the United States, are the people of the particular States united. The solidarity of the members constitutes the unity of the body. The difference between this view and Mr. Madison's is, that while his view supposes the solidarity to be conventional, originating and existing in compact, or agreement, this supposes it to be real, living, and prior to the convention, as much the work of Providence as the existence in the human body of the living solidarity of its members. One law, one life, circulates through all the members, constituting them a living organism, binding them in living union, all to each and each to all. Such is the sovereign people, and so far the original unwritten constitution. The sovereign, in order to live and act, must have an organ through which he expresses his will. This organ under the American system, is primarily the Convention. The convention is the supreme political body, the concrete sovereign authority, and exercises practically the whole sovereign power of the people. The convention persists always, although not in permanent session. It can at any time be convened by the ordinary authority of the government, or, in its failure, by a plebiscitum. Next follows the Government created and constituted by the convention. The government is constituted in such manner, and has such and only such powers, as the convention ordains. The government has, in the strict sense, no political authority under the American system, which separates the government from the convention. All political questions proper, such as the elective franchise, eligibility, the constitution of the several departments of government, as the legislative, the judicial, and the executive, changing, altering, or amending the constitution of government, enlarging, or contracting its powers, in a word, all those questions that arise on which it is necessary to take the immediate orders of the sovereign, belong not to the government, but to the convention; and where the will of the sovereign is not sufficiently expressed in the constitution, a new appeal to the convention is necessary, and may always be had. The constitution of Great Britain makes no distinction between the convention and the government. Theoretically the constitution of Great Britain is feudal, and there is, properly speaking, no British state; there are only the estates, king, lords, and commons, and these three estates constitute the Parliament, which is held to be omnipotent; that is, has the plenitude of political sovereignty. The British Parliament, composed of the three estates, possesses in itself all the powers of the convention in the American constitution, and is at once the convention and the government. The imperial constitution of France recognizes no convention, but clothes the senate with certain political functions, which, in some respects, subjects theoretically the sovereign to his creature. The emperor confessedly holds his power by the grace of God and the will of the nation, which is a clear acknowledgment that the sovereignty vests in the French people as the French state; but the imperial constitution, which is the constitution of the government, not of the state, studies, while acknowledging the sovereignty of the people, to render it nugatory, by transferring it, under various subtle disguises, to the government, and practically to the emperor as chief of the government. The senate, the council of state, the legislative body, and the emperor, are all creatures of the French state, and have properly no political functions, and to give them such functions is to place the sovereign under his own subjects! The real aim of the imperial constitution is to secure despotic power under the guise of republicanism. It leaves and is intended to leave the nation no way of practically asserting its sovereignty but by either a revolution or a plebiscitum, and a plebiscitum is permissible only where there is no regular government. The British constitution is consistent with itself, but imposes no restriction on the power of the government. The French imperial constitution is illogical, inconsistent with itself as well as with the free action of the nation. The American constitution has all the advantages of both, and the disadvantages of neither. The convention is not the government like the British Parliament, nor a creature of the state like the French senate, but the sovereign state itself, in a practical form. By means of the convention the government is restricted to its delegated powers, and these, if found in practice either too great or too small, can be enlarged or contracted in a regular, orderly way, without resorting to a revolution or to a plebiscitum. Whatever political grievances there may be, there is always present the sovereign convention competent to redress them. The efficiency of power is thus secured without danger to liberty, and freedom without danger to power. The recognition of the convention, the real political sovereign of the country and its separation from and independence of the ordinary government, is one of the most striking features of the American constitution. The next thing to be noted, after the convention, is the constitution by the convention of the government. This constitution, as Mr. Madison well observes, divides the powers conceded by the convention to government between the General Government and the particular State governments. Strictly speaking, the government is one, and its powers only are divided and exercised by two sets of agents or ministries. This division of the powers of government could never have been established by the convention if the American people had not been providentially constituted one people, existing and acting through particular State organizations. Here the unwritten constitution, or the constitution written in the people themselves, rendered practicable and dictated the written constitution, or constitution ordained by the convention and engrossed on parchment. It only expresses in the government the fact which pre-existed in the national organization and life. This division of the powers of government is peculiar to the United States, and is an effective safeguard against both feudal disintegration and Roman centralism. Misled by their prejudices and peculiar interests, a portion of the people of the United States, pleading in their justification the theory of State sovereignty, attempted disintegration, secession, and national independence separate from that of the United States, but the central force of the constitution was too strong for them to succeed. The unity of the nation was too strong to be effectually broken. No doubt the reaction against secession and disintegration will strengthen the tendency to centralism, but centralism can succeed no better than disintegration has succeeded because the General government has no subsistentia, no suppositum, to borrow a theological term, outside or independent of the States. The particular governments are stronger, if there be any difference, to protect the States against centralism than the General government is to protect the Union against disintegration; and after swinging for a time too far toward one extreme and then too far toward the other, the public mind will recover its equilibrium, and the government move on in its constitutional path. Republican Rome attempted to guard against excessive centralism by the tribunitial veto, or by the organization of a negative or obstructive power. Mr. Calhoun thought this admirable, and wished to effect the same end here, where it is secured by other, more effective, and less objectionable means, by a State veto on the acts of Congress, by a dual executive, and by substituting concurrent for numerical majorities. Imperial Rome gradually swept away the tribunitial veto, concentrated all power in the hands of the emperor, became completely centralized, and fell. The British constitution seeks the same end by substituting estates for the state, and establishing a mixed government, in which monarchy, aristocracy, and democracy temper, check, or balance each other; but practically the commons estate has become supreme, and the nobility govern not in the house of lords, and can really influence public affairs only through the house of commons. The principle of the British constitution is not the division of the powers of government, but the antagonism of estates, or rather of interests, trusting to the obstructive influence of that antagonism to preserve the government from pure centralism. Hence the study of the British statesman is to manage diverse and antagonistic parties and interests so as to gain the ability to act, which he can do only by intrigue, cajolery, bribery in one form or another, and corruption of every sort. The British government cannot be carried on by fair, honest, and honorable means, any more than could the Roman under the antagonism created by the tribunitial veto. The French tried the English system of organized antagonism in 1789, as a cure for the centralism introduced by Richelieu and Louis XIV., and again under the Restoration and Louis Philippe, and called it the system of constitutional guarantees; but they could never manage it, and they have taken refuge in unmitigated centralism under Napoleon III., who, however well disposed, finds no means in the constitution of the French nation of tempering it. The English system, called the constitutional, and sometimes the parliamentary system, will not work in France, and indeed works really well nowhere. The American system, sometimes called the Federal system, is not founded on antagonism of classes, estates, or interests, and is in no sense a system of checks and balances. It needs and tolerates no obstructive forces. It does not pit section against section, the States severally against the General government, nor the General government against the State governments, and nothing is more hurtful than the attempt to explain it and work it on the principles of British constitutionalism. The convention created no antagonistic powers; it simply divided the powers of government, and gave neither to the General government nor to the State governments all the powers of government, nor in any instance did it give to the two governments jurisdiction in the same matters. Hence each has its own sphere, in which it can move on without colliding with that of the other. Each is independent and complete in relation to its own work, incomplete and dependent on the other for the complete work of government. The division of power is not between a NATIONAL government and State governments, but between a GENERAL government and particular governments. The General government, inasmuch as it extends to matters common to all the States, is usually called the Government of the United States, and sometimes the Federal government, to distinguish it from the particular or State governments, but without strict propriety; for the government of the United States, or the Federal government, means, in strictness, both the General government and the particular Governments, since neither is in itself the complete government of the country. The General government has authority within each of the States, and each of the State governments has authority in the Union. The line between the Union and the States severally, is not precisely the line between the General government and the particular governments. As, for instance, the General government lays direct taxes on the people of the States, and collects internal revenue within them; and the citizens of a particular State, and none others, are electors of President and Vice-President of the United States, and representatives in the lower house of Congress, while senators in Congress are elected by the State legislatures themselves. The line that distinguishes the two governments is that which distinguishes the general relations and interests from the particular relations and interests of the people of the United States. These general relations and interests are placed under the General government, which, because its jurisdiction is coextensive with the Union, is called the Government of the United States; the particular relations and interests are placed under particular governments, which, because their jurisdiction is only coextensive, with the States respectively, are called State governments. The General government governs supremely all the people of the United States and Territories belonging to the Union, in all their general relations and interests, or relations and interests common alike to them all; the particular or State government governs supremely the people of a particular State, as Massachusetts, New York, or New Jersey, in all that pertains to their particular or private rights, relations, and interests. The powers of each are equally sovereign, and neither are derived from the other. The State governments are not subordinate to the General government, nor the General government to the State governments. They are co-ordinate governments, each standing on the same level, and deriving its powers from the same sovereign authority. In their respective spheres neither yields to the other. In relation to the matters within its jurisdiction, each government is independent and supreme in regard of the other, and subject only to the convention. The powers of the General government are the power-- To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the general welfare of the United States; to borrow money on the credit of the United States; to regulate commerce with foreign nations, among the several States, and with the Indian tribes; to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; to coin money and regulate the value thereof, and fix the standard of weights and measures; to provide for the punishment of counterfeiting the securities and current coin of the United States; to establish post-offices and post-roads; to promote the progress of science and of the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies; to provide and maintain a navy; to make rules for the government of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and of governing such part of them as may be employed in the service of the United States; to exercise exclusive legislation in all cases whatsoever over such district, not exceeding ten miles square, as may by cession of particular States and the acceptance of Congress, become the seat of the government of the United States, and to exercise a like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or office thereof. In addition to these, the General government is clothed with the treaty-making power, and the whole charge of the foreign relations of the country; with power to admit new States into the Union; to dispose of and make all needful rules and regulations concerning the territory and all other property belonging to the United States; to declare, with certain restrictions, the punishment of treason, the constitution itself defining what is treason against the United States; and to propose, or to call, on the application of the legislatures of two-thirds of all the states, a convention for proposing amendments to this constitution; and is vested with supreme judicial power, original or appellate, in all cases of law and equity arising under this constitution, the laws of the United States, and treaties made or to be made under their authority, in all cases affecting ambassadors, other public ministers, and consuls, in all cases of admiralty and maritime jurisdiction, in all controversies to which the United States shall be a party, all controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof and foreign states, citizens, or subjects. These, with what is incidental to them, and what is necessary and proper to carry them into effect, are all the positive powers with which the convention vests the General government, or government of the United States, as distinguished from the governments of the particular States; and these, with the exception of what relates to the district in which it has its seat, and places of forts, magazines, &c., are of a general nature, and restricted to the common relations and interests of the people, or at least to interests and relations which extend beyond the limits of a particular State. They are all powers that regard matters which extend beyond not only the individual citizen, but the individual State, and affect alike the relations and interests of all the States, or matters which cannot be disposed of by a State government without the exercise of extra-territorial jurisdiction. They give the government no jurisdiction of questions which affect individuals or citizens only in their private and domestic relations which lie wholly within a particular State. The General government does not legislate concerning private rights, whether of persons or things, the tenure of real estate, marriage, dower, inheritance, wills, the transferrence or transmission of property, real or personal; it can charter no private corporations, out of the District of Columbia, for business, literary, scientific, or eleemosynary purposes, establish no schools, found no colleges or universities, and promote science and the useful arts only by securing to authors and inventors for a time the exclusive right to their writings and discoveries. The United States Bank was manifestly unconstitutional, as probably are the present so-called national banks. The United States Bank was a private or particular corporation, and the present national banks are only corporations of the same sort, though organized under a general law. The pretence that they are established to supply a national currency, does not save their constitutionality, for the convention has not given the General government the power nor imposed on it the duty of furnishing a national currency. To coin money, and regulate the value thereof, is something very different from authorizing private companies to issue bank notes, on the basis of the public stocks held as private property, or even on what is called a specie basis. To claim the power under the general welfare clause would be a simple mockery of good sense. It is no more for the general welfare than any other successful private business. The private welfare of each is, no doubt, for the welfare of all, but not therefore is it the "general welfare," for what is private, particular in its nature, is not and cannot be general. To understand by general welfare that which is for the individual welfare of all or the greater number, would be to claim for the General government all the powers of government, and to deny that very division of powers which is the crowning merit of the American system. The general welfare, by the very force of the words themselves, means the common as distinguished from the private or individual welfare. The system of national banks may or may not be a good and desirable system, but it is difficult to understand the constitutional power of the General government to establish it. On the ground that its powers are general, not particular, the General government has no power to lay a protective tariff. It can lay a tariff for revenue, not for protection of home manufactures or home industry; for the interests fostered, even though indirectly advantageous to the whole people, are in their nature private or particular, not general interests, and chiefly interests of private corporations and capitalists. Their incidental or even consequential effects do not change their direct and essential nature. So with domestic slavery. Slavery comes under the head of private rights, whether regarded on the side of the master or on the side of the slave. The right of a citizen to hold a slave, if a right at all, is the private right of property, and the right of the slave to his freedom is a private and personal right, and neither is placed under the safeguard of the General government, which has nowhere, unless in the District of Columbia and the places over which it has exclusive legislative power in all cases whatsoever, either the right to establish it or to abolish it, except perhaps under the war power, as a military necessity, an indemnity for the past, or a security for the future. This applies to what are called Territories as well as to the States. The right of the government to govern the Territories in regard to private and particular rights and interests, is derived from no express grant of power, and is held only ex necessitate--the United States owning the domain, and there being no other authority competent to govern them. But, as in the case of all powers held ex necessitate, the power is restricted to the absolute necessity in the case. What are called Territorial governments, to distinguish them from the State governments, are only provisional governments, and can touch private rights and interests no further than is necessary to preserve order and prepare the way for the organization and installation of a regular State government. Till then the law governing private rights is the law that was in force, if any such there was, when the territory became by purchase, by conquest, or by treaty, attached to the domain of the United States. Hence the Supreme Court declared unconstitutional the ordinance of 1787, prohibiting slavery in what was called the territory of the Northwest, and the so-called Missouri Compromise, prohibiting slavery north of the parallel 36° 30'. The Wilmot proviso was for the same reason unconstitutional. The General government never had and has not any power to exclude slavery from the Territories, any more than to abolish it in the States. But slavery being a local institution, sustained neither by the law of nature nor the law of nations, no citizen migrating from a slave State could carry his slaves with him, and hold them as slaves in the Territory. Rights enacted by local law are rights only in that locality, and slaves carried by their masters into a slave State even, are free, unless the State into which they are carried enacts to the contrary. The only persons that could be held as slaves in a Territory would be those who were slaves or the children of those who were slaves in the Territory when it passed to the United States. The whole controversy on, slavery in the Territories, and which culminated in the civil war, was wholly unnecessary, and never could have occurred had the constitution been properly understood and adhered to by both sides. True, Congress could not exclude slavery from the Territory, but neither could citizens migrating to them hold slaves in them; and so really slavery was virtually excluded, for the inhabitants in nearly all of them, not emigrants from the States after the cession to the United States, were too few to be counted. The General government has power to establish a uniform rule of naturalization, to which all the States must conform, and it was very proper that it should have this power, so as to prevent one State from gaining by its naturalization laws an undue advantage over another; but the General government has itself no power to naturalize a single foreigner, or in any case to say who shall or who shall not be citizens, either of a State or of the United States, or to declare who may or may not be electors even of its own officers. The convention ordains that members of the house of representatives shall be chosen by electors who have the qualifications requisite for electors of the most numerous branch of the State legislature, but the State determines these qualifications, and who do or do not possess them; that the senators shall be chosen by the State legislatures, and that the electors of President and Vice-President shall be appointed in such manner as the respective State legislatures may direct. The whole question of citizenship, what shall or shall not be the qualifications of electors, who shall or shall not be freemen, is reserved to the States, as coming under the head of personal or private rights and franchises. In practice, the exact line of demarcation may not always have been strictly observed either by the General government or by the State governments; but a careful study of the constitution cannot fail to show that the division of powers is the division or distinction between the public and general relations and interests, rights and duties of the people, and their private and particular relations and interests, rights and duties. As these two classes of relations and interests, rights and duties, though distinguishable, are really inseparable in nature, it follows that the two governments are essential to the existence of a complete government, or to the existence of a real government in its plenitude and integrity. Left to either alone, the people would have only an incomplete, an initial, or inchoate government. The General government is the complement of the State governments, and the State governments are the complement of the General government. The consideration of the powers denied by the convention to the General government and to the State governments respectively, will lead to the same conclusion. To the General government is denied expressly or by necessary implication all jurisdiction in matters of private rights and interests, and to the State government is denied all jurisdiction in right, or interests which extend, as has been said, beyond the boundaries of the State. "No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money, emit bills of credit, make any thing but gold and silver coin a tender in the payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws and the net produce of all duties and imposts laid by any State on imports and exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships-of-war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." The powers denied to the States in some matters which are rather private and particular, such as bills of attainder, ex post facto laws, laws impairing the obligation of contracts, granting titles of nobility, are denied equally to the General government. There is evidently a profound logic in the constitution, and there is not a single provision in it that is arbitrary, or anomalous, or that does not harmonize dialectically with the whole, and with the real constitution of the American people. At first sight the reservation to the State of the appointment of the officers of the militia might seem an anomaly; but as the whole subject of internal police belongs to the State, it should have some military force at its command. The subject of bankruptcies, also, might seem to be more properly within the province of the State, and so it would be if commerce between the several States had not been placed under Congress, or if trade were confined to the citizens of the State and within its boundaries; but as such is not the case, it was necessary to place it under the General government, in order that laws on the subject might be uniform throughout the Union, and that the citizens of all the States, and foreigners trading with them, should be placed on an equal footing, and have the same remedies. The subject follows naturally in the train of commerce, for bankruptcies, as understood at the time, were confined to the mercantile class, bankers, and brokers; and since the regulation of commerce, foreign and inter-state, was to be placed under the sole charge of the General government, it was necessary that bankruptcy should be included. The subject of patents is placed under the General government, though the patent is a private right, because it was the will of the convention that the patent should be good in all the States, as affording more encouragement to science and the useful arts than if good only within a single State, or if the power were left to each State to recognize or not patents granted by another. The right created, though private in its nature, is Yet general or common to all the States in its enjoyment or exercise. The division of the powers of government between a General government and particular governments, rendered possible and practicable by the original constitution of the people themselves, as one people existing and acting through State organizations, is the American method of guarding against the undue centralism to which Roman imperialism inevitably tends; and it is far simpler and more effective than any of the European systems of mixed governments, which seek their end by organizing an antagonism of interests or classes. The American method demands no such antagonism, no neutralizing of one social force by another, but avails itself of all the forces of society, organizes them dialectically, not antagonistically, and thus protects with, equal efficiency both public authority and private rights. The General government can never oppress the people as individuals, or abridge their private rights or personal freedom and independence, because these are not within its jurisdiction, but are placed in charge, within each State, of the State government, which, within its sphere, governs as supremely as the General government: the State governments cannot weaken the public authority of the nation or oppress the people in their general rights and interests, for these are withdrawn from State jurisdiction, and placed under charge of a General government, which, in its sphere, governs as supremely as the State government. There is no resort to a system of checks and balances; there is no restraint on power, and no systematic distrust of power, but simply a division of powers between two co-ordinate governments, distinct but inseparable, moving in distinct spheres, but in the same direction, or to a common end. The system is no invention of man, is no creation of the convention, but is given us by Providence in the living constitution of the American people. The merit of the statesmen of 1787 is that they did not destroy or deface the work of Providence, but accepted it, and organized the government in harmony with the real orders the real elements given them. They suffered themselves in all their positive substantial work to be governed by reality, not by theories and speculations. In this they proved themselves statesmen, and their work survives; and the republic, laugh as sciolists may, is, for the present and future, the model republic--as much so as was Rome in her day; and it is not simply national pride nor American self-conceit that pronounces its establishment the beginning of a new and more advanced order of civilization; such is really the fact. The only apparently weak point in the system is in the particular States themselves. Feudalism protected the feudal aristocracy effectively for a time against both the king and the people, but left the king and the people without protection against the aristocracy, and hence it fell. It was not adequate to the wants of civil society, did not harmonize all social elements, and protect all social and individual rights and interests, and therefore could not but fail. The General government takes care of public authority and rights; the State protects private rights and personal freedom as against the General government: but what protects the citizens in their private rights, their personal freedom and independence, against the particular State government? Universal suffrage, answers the democrat. Armed with the ballot, more powerful than the sword, each citizen is able to protect himself. But this is theory, not reality. If it were true, the division of the powers of government between two co-ordinate, governments would be of no practical importance. Experience does not sustain the theory, and the power of the ballot to protect the individual may be rendered ineffective by the tyranny of party. Experience proves that the ballot is far less effective in securing the freedom and independence of the individual citizen than is commonly pretended. The ballot of an isolated individual counts for nothing. The individual, though armed with the ballot, is as powerless, if he stands alone, as if he had it not. To render it of any avail he must associate himself with a party, and look for his success in the success of his party; and to secure the success of his party, he must give up to it his own private convictions and free will. In practice, individuals are nothing individually, and parties are every thing. Even the suppression of the late rebellion, and the support of the Administration in doing it, was made a party question, and the government found the leaders of the party opposed to the Republican party an obstacle hardly less difficult to surmount than the chiefs of the armies of the so-called Confederate States. Parties are formed, one hardly knows how, and controlled, no one knows by whom; but usually by demagogues, men who have some private or personal purposes, for which they wish, through party to use the government. Parties have no conscience, no responsibility, and their very reason of being is, the usurpation and concentration of power. The real practical tendency of universal suffrage is to democratic, instead of an imperial, centralism. What is to guard against this centralism? Not universal suffrage, for that tends to create it; and if the government is left to it, the government becomes practically the will of an ever shifting and irresponsible majority. Is the remedy in written or paper constitutions? Party can break through them, and by making the judges elective by party, for short terms, and re-eligible, can do so with impunity. In several of the States, the dominant majority have gained the power to govern at will, without any let or hindrance. Besides, constitutions can be altered, and have been altered, very nearly at the will of the majority. No mere paper constitutions are any protection against the usurpations of party, for party will always grasp all the power it can. Yet the evil is not so great as it seems, for in most of the States the principle of division of powers is carried into the bosom of the State itself; in some States further than in others, but in all it obtains to some extent. In what are called the New England States, the best governed portion of the Union, each town is a corporation, having important powers and the charge of all purely local matters--chooses its own officers, manages its own finances, takes charge of its own poor, of its own roads and bridges, and of the education of its own children. Between these corporations and the State government are the counties, that take charge of another class of interests, more general than those under the charge of the town, but less general than those of the State. In the great central and Northwestern States the same system obtains, though less completely carried out. In the Southern and Southwestern States, the town corporations hardly exist, and the rights and interests of the poorer classes of persons have been less well protected in them than in the Northern and Eastern States. But with the abolition of slavery, and the lessening of the influence of the wealthy slaveholding class, with the return of peace and the revival of agricultural, industrial, and commercial prosperity, the New England system, in its main features, is pretty sure to be gradually introduced, or developed, and the division of powers in the State to be as effectively and as systematically carried out as it is between the General government and the particular or State governments. So, though universal suffrage, good as far as it goes, is not alone sufficient, the division of powers affords with it a not inadequate protection. No government, whose workings are intrusted to men, ever is or can be practically perfect--secure all good, and guard against all evil. In all human governments there will be defects and abuses, and he is no wise man who expects perfection from imperfection. But the American constitution, taken as a whole, and in all its parts, is the least imperfect that has ever existed, and under it individual rights, personal freedom and independence, as well as public authority or society, are better protected than under any other; and as the few barbaric elements retained from the feudal ages are eliminated, the standard of education elevated, and the whole population Americanized, moulded by and to the American system, it will be found to effect all the good, with as little of the evil, as can be reasonably expected from any possible civil government or political constitution of society. CHAPTER XII. SECESSION. The doctrine that a State has a right to secede and carry with it its population and domain, has been effectually put down, and the unity and integrity of the United States as a sovereign nation have been effectively asserted on the battle-field; but the secessionists, though disposed to submit to superior force, and demean themselves henceforth as loyal citizens, most likely hold as firmly to the doctrine as before finding themselves unable to reduce it to practice, and the Union victory will remain incomplete till they are convinced in their understandings that the Union has the better reason as well as the superior military resources. The nation has conquered their bodies, but it is hardly less important for our statesmen to conquer their minds and win their hearts. The right of secession is not claimed as a revolutionary right, or even as a conventional right. The secessionists disclaim revolutionary principles, and hold that the right of secession is anterior to the convention, a right which the convention could neither give, nor take away, because inherent in the very conception of a sovereign State. Secession is simply the repeal by the State of the act of accession to the Union; and as that act was a free, voluntary act of the State, she must always be free to repeal it. The Union is a copartnership; a State in the Union is simply a member of the firm, and has the right to withdraw when it judges it for its interest to do so. There is no power in a firm to compel a copartner to remain a member any longer than be pleases. He is undoubtedly holden for the obligations contracted by the firm while he remains a member; but for none contracted after he has withdrawn and given due notice thereof. So of a sovereign State in the Union. The Union itself, apart from the sovereign States that compose it, is a mere abstraction, a nullity, and binds nobody. All its substance and vitality are in the agreement by which the States constitute themselves a firm or copartnership, for certain specific purposes, and for which they open an office and establish an agency under express instructions for the management of the general affairs of the firm. The State is held jointly and severally for all the legal obligations of the Union, contracted while she is in it but no further; and is free to withdraw when she pleases, precisely as an individual may withdraw from an ordinary business firm. The remaining copartners have no right of compulsion or coercion against the seceding member, for he, saving the obligations already contracted, is as free to withdraw as they are to remain. The population is fixed to the domain and goes with it; the domain is attached to the State, and secedes in the secession of the State. Secession, then, carries the entire State government, people, and domain out of the Union, and restores ipso facto the State to its original position of a sovereign State, foreign to the United States. Being an independent sovereign State, she may enter into a new confederacy, form a new copartnership, or merge herself in some other foreign state, as she judges proper or finds opportunity. The States that seceded formed among themselves a new confederacy, more to their mind than the one formed in 1787, as they had a perfect right to do, and in the war just ended they were not rebels nor revolutionists, but a people fighting for the right of self-government, loyal citizens and true patriots defending the independence and inviolability of their country against foreign invaders. They are to be honored for their loyalty and patriotism, and not branded as rebels and punished as traitors. This is the secession argument, which rests on no assumption of revolutionary principles or abstract rights of man, and on no allegation of real or imaginary wrongs received from the Union, but simply on the original and inherent rights of the several States as independent sovereign States. The argument is conclusive, and the defence complete, if the Union is only a firm or copartnership, and the sovereignty vests in the States severally. The refutation of the secessionists is in the facts adduced that disprove the theory of State sovereignty, and prove that the sovereignty vests not in the States severally, but in the States united, or that the Union is sovereign, and not the States individually. The Union is not a firm, a copartnership, nor an artificial or conventional union, but a real, living, constitutional union, founded in the original and indissoluble unity of the American people, as one sovereign people. There is, indeed, no such people, if we abstract the States, but there are no States if we abstract this sovereign people or the Union. There is no Union without the States, and there are no States without the Union. The people are born States, and the States are born United States. The Union and the States are simultaneous, born together, and enter alike into the original and essential constitution of the American state. This the facts and reasonings adduced fully establish. But this one sovereign people that exists only as organized into States, does not necessarily include the whole population or territory included within the jurisdiction of the United States. It is restricted to the people and territory or domain organized into States in the Union, as in ancient Rome the ruling people were restricted to the tenants of the sacred territory, which had been surveyed, and its boundaries marked by the god Terminus, and which by no means included all the territory held by the city, and of which she was both the private proprietor and the public sovereign. The city had vast possessions acquired by confiscation, by purchase, by treaty, or by conquest, and in reference to which her celebrated agrarian laws were enacted, and which have their counterpart in our homestead and kindred laws. In this class of territory, of which the city was the private owner, was the territory of all the Roman provinces, which was held to be only leased to its occupants, who were often dispossessed, and their lands given as a recompense by the consul or imperator to his disbanded legionaries. The provincials were subjects of Rome, but formed no part of the Roman people, and had no share in the political power of the state, till at a late period the privileges of Roman citizens were extended to them, and the Roman people became coextensive with the Roman empire. So the United States have held and still hold large territorial possessions, acquired by the acknowledgment of their independence by Great Britain, the former sovereign, the cession of particular states, and purchase from France, Spain, and Mexico. Till erected into States and admitted into the Union, this territory, with its population, though subject to the United States, makes no part of the political or sovereign territory and people of the United States. It is under the Union, not in it, as is indicated by the phrase admitting into the Union--a legal phrase, since the constitution ordains that "new States may be admitted by the Congress into this Union." There can be no secession that separates a State from the national domain, and withdraws it from the territorial sovereignty or jurisdiction of the United States; yet what hinders a State from going out of the Union in the sense that it comes into it, and thus ceasing to belong to the political people of the United States? If the view of the constitution taken in the preceding chapters be correct, and certainly no facts tend to disprove it, the accession of a Territory as a State in the Union is a free act of the territorial people. The Territory cannot organize and apply for admission as a State, without what is called an "enabling act" of Congress or its equivalent; but that act is permissive, not mandatory, and nothing obliges the Territory to organize under it and apply for admission. It may do so or not, as it chooses. What, then, hinders the State once in the Union from going out or returning to its former condition of territory subject to the Union? The original States did not need to come in under an enabling act, for they were born States in the Union, and were never territory outside of the Union and subject to it. But they and the new States, adopted or naturalized States, once in the Union, stand on a footing of perfect equality, and the original States are no more and no less bound than they to remain States in the Union. The ratification of the constitution by the original States was a free act, as much so as the accession of a new State formed from territory subject to the Union is a free act, and a free act is an act which one is free to do or not to do, as he pleases. What a State is free to do or not to do, it is free to undo, if it chooses. There is nothing in either the State constitution or in that of the United States that forbids it. This is denied. The population and domain are inseparable in the State; and if the State could take itself out of the Union, it would take them out, and be ipso facto a sovereign State foreign to the Union. It would take the domain and the population out of the Union, it is conceded and even maintained, but not therefore would it take them out of the jurisdiction of the Union, or would they exist as a State foreign to the Union; for population and territory may coexist, as Dacota, Colorado, or New Mexico, out of the Union, and yet be subject to the Union, or within the jurisdiction of the United States. But the Union is formed by the surrender by each of the States of its individual sovereignty, and each State by its admission into the Union surrenders its individual sovereignty, or binds itself by a constitutional compact to merge its individual sovereignty in that of the whole. It then cannot cease to be a State in the Union without breach of contract. Having surrendered its sovereignty to the Union, or bound itself by the constitution to exercise its original sovereignty only as one of the United States, it can unmake itself of its state character, only by consent of the United States, or by a successful revolution. It is by virtue of this fact that secession is rebellion against the United States, and that the General government, as representing the Union, has the right and the duty to suppress it by all the forces at its command. There can be no rebellion where there is no allegiance. The States in the Union cannot owe allegiance to the Union, for they are it, and for any one to go out of it is no more an act of rebellion than it is for a king to abdicate his throne. The Union is not formed by the surrender to it by the several States of their respective individual sovereignty. Such surrender could, as we have seen, form only an alliance, or a confederation, not one sovereign people; and from an alliance, or confederation, the ally or confederate has, saving its faith, the inherent right to secede. The argument assumes that the States were originally each in its individuality a sovereign state, but by the convention which framed the constitution, each surrendered its sovereignty to the whole, and thus several sovereign states became one sovereign political people, governing in general matters through the General government, and in particular matters through particular or State governments. This is Mr. Madison's theory, and also Mr. Webster's; but it has been refuted in the refutation of the theory that makes government originate in compact. A sovereign state can, undoubtedly, surrender its sovereignty, but can surrender it only to something or somebody that really exists; for to Surrender to no one or to nothing is, as has been shown, the same thing as not to surrender at all; and the Union, being formed only by the surrender, is nothing prior to it, or till after it is made, and therefore can be no recipient of the surrender. Besides, the theory is the reverse of the fact. The State does not surrender or part with its sovereignty by coming into the Union, but acquires by it all the rights it holds as a State. Between the original States and the new States there is a difference of mode by which they become States in the Union, but none in their powers, or the tenure by which they hold them. The process by which new States are actually formed and admitted into the Union, discloses at once what it is that is gained or lost by admission. The domain and population, before the organization of the Territory into one of the United States, are subject to the United States, inseparably attached to the domain of the Union, and under its sovereignty. The Territory so remains, organized or unorganized, under a Territorial Government created by Congress. Congress, by an enabling act, permits it to organize as a State, to call a convention to form a State constitution, to elect under it, in such way as the convention ordains, State officers, a State legislature, and, in the way prescribed by the Constitution of the United States, senators and representatives in Congress. Here is a complete organization as a State, yet, though called a State, it is no State at all, and is simply territory, without a single particle of political power. To be a State it must be recognized and admitted by Congress as a State in the Union, and when so recognized and admitted it possesses, in union with the other United States, supreme political sovereignty, jointly in all general matters, and individually in all private and particular matters. The Territory gives up no sovereign powers by coming into the Union, for before it came into the Union it had no sovereignty, no political rights at all. All the rights and powers it holds are held by the simple fact that it has become a State in the Union. This is as true of the original States as of the new States; for it has been shown in the chapter on The United States, that the original British sovereignty under which the colonies were organized and existed passed, on the fact of independence, to the States United, and not to the States severally. Hence if nine States had ratified the constitution, and the other four had stood out, and refused to do it, which was within their competency, they would not have been independent sovereign States, outside of the Union, but Territories under the Union. Texas forms the only exception to the rule that the States have never been independent of the Union. All the other new States have been formed from territory subject to the Union. This is true of all the States formed out of the Territory of the Northwest, and out of the domain ceded by France, Spain, and Mexico to the United States. All these cessions were held by the United States as territory immediately subject to the Union, before being erected into States; and by far the larger part is so held even yet. But Texas was an independent foreign state, and was annexed as a State without having been first subjected as territory to the United States. It of course lost by annexation its separate sovereignty. But this annexation was held by many to be unconstitutional; it was made when the State sovereignty theory had gained possession of the Government, and was annexed as a State instead of being admitted as a State formed from territory belonging to the United States, for the very purpose of committing the nation to that theory. Its annexation was the prologue, as the Mexican war was the first act in the secession drama, and as the epilogue is the suppression of the rebellion on Texan soil. Texas is an exceptional case, and forms no precedent, and cannot be adduced as invalidating the general rule. Omitting Texas, the simple fact is, the States acquire all their sovereign powers by being States in the Union, instead of losing or surrendering them. Our American statesmen have overlooked or not duly weighed the facts in the case, because, holding the origin of government in compact, they felt no need of looking back of the constitution to find the basis of that unity of the American people which they assert. Neither Mr. Madison nor Mr. Webster felt any difficulty in asserting it as created by the convention of 1787, or in conceding the sovereignty of the States prior to the Union, and denying its existence after the ratification of the constitution. If it were not that they held that the State originates in convention or the social compact, there would be unpardonable presumption on the part of the present writer in venturing to hazard an assertion contrary to theirs. But, if their theory was unsound, their practical doctrine was not; for they maintained that the American people are one sovereign people, and Mr. Quincy Adams, an authority inferior to neither, maintained that they were always one people, and that the States hold from the Union, not the Union from the States. The States without the Union cease to exist as political communities: the Union without the States ceases to be a Union, and becomes a vast centralized and consolidated state, ready to lapse from a civilized into a barbaric, from a republican to a despotic nation. The State, under the American system, as distinguished from Territory, is not in the domain and population fixed to it, nor yet in its exterior organization, but solely in the political powers, rights, and franchises which it holds from the United States, or as one of the United States. As these are rights, not obligations, the State may resign or abdicate them and cease to be a State, on the same principle that any man may abdicate or forego his rights. In doing so, the State breaks no oath of allegiance, fails to fulfil no obligation she contracted as a State: she simply forgoes her political rights and franchises. So far, then, secession is possible, feasible, and not unconstitutional or unlawful. But it is, as Mr. Sumner and others have maintained, simply State suicide. Nothing hinders a State from committing suicide, if she chooses, any more than there was something which compelled the Territory to become a State in the Union against its will. It is objected to, this conclusion that the States were, prior to the Union, independent sovereign States, and secession would not destroy the State, but restore it to its original sovereignty and independence, as the secessionists maintain. Certainly, if the States were, Prior to the Union, sovereign States; but this is precisely what has been denied and disproved; for prior to the Union there were no States. Secession restores, or reduces, rather, the State to the condition it was in before its admission into the Union; but that condition is that of Territory, or a Territory subject to the United States, and not that of an independent sovereign state. The State holds all its political rights and powers in the Union from the Union, and has none out of it, or in the condition in which its population and domain were before being a State in the Union. State suicide, it has been urged, releases its population and territory from their allegiance to the Union, and as there is no rebellion where there is no allegiance, resistance by its population and territory to the Union, even war against the Union, would not be rebellion, but the simple assertion of popular sovereignty. This is only the same objection in another form. The lapse of the State releases the population and territory from no allegiance to the Union; for their allegiance to the Union was not contracted by their becoming a State, and they have never in their State character owed allegiance to the United States. A State owes no allegiance to the United States, for it is one of them, and is jointly sovereign. The relation between the United States and the State is not the relation of suzerain and liegeman or vassal. A State owes no allegiance, for it is not subject to the Union; it is never in their State capacity that its population and territory do or can rebel. Hence, the Government has steadily denied that, in the late rebellion, any State as such rebelled. But as a State cannot rebel, no State can go out of the Union; and therefore no State in the late rebellion has seceded, and the States that passed secession ordinances are and all along have been States in the Union. No State can rebel, but it does not follow therefrom that no State can secede or cease to exist as a State: it only follows that secession, in the sense of State suicide, or the abdication by the State of its political rights and powers, is not rebellion. Nor does it follow from the fact that no State has rebelled, that no State has ceased to be a State; or that the States that passed secession ordinances have been all along States in the Union. The secession ordinances were illegal, unconstitutional, not within the competency of the State, and therefore null and void from the beginning. Unconstitutional, illegal, and not within the competency of the State, so far as intended to alienate any portion of the national domain and population thereto annexed, they certainly were, and so far were void and of no effect; but so far as intended to take the State simply as a State out of the Union, they were within the competency of the State, were not illegal or unconstitutional, and therefore not null and void. Acts unconstitutional in some parts and constitutional in others are not wholly void. The unconstitutionality vitiates only the unconstitutional parts; the others are valid, are law, and recognized and enforced as such by the courts. The secession ordinances are void, because they were never passed by the people of the State, but by a faction that overawed them and usurped the authority of the State. This argument implies that, if a secession ordinance is passed by the people proper of the State, it is valid; which is more than they who urge it against the State suicide doctrine are prepared to concede. But the secession ordinances were in every instance passed by the people of the State in convention legally assembled, therefore by them in their highest State capacity--in the same capacity in which they ordain and ratify the State constitution itself; and in nearly all the States they were in addition ratified and confirmed, if the facts have been correctly reported, by a genuine plebiscitum, or direct vote of the people. In all cases they were adopted by a decided majority of the political people of the State, and after their adoption they were acquiesced in and indeed actively supported by very nearly the whole people. The people of the States adopting the secession ordinances were far more unanimous in supporting secession than the people of the other States were in sustaining the Government in its efforts to suppress the rebellion by coercive measures. It will not do, then, to ascribe the secession ordinances to a faction. The people are never a faction, nor is a faction ever the majority. There has been a disposition at the North, encouraged by the few Union men at the South, to regard secession as the work of a few ambitious and unprincipled leaders, who, by their threats, their violence, and their overbearing manner, forced the mass of the people of their respective States into secession against their convictions and their will. No doubt there were leaders at the South, as there are in every great movement at the North; no doubt there were individuals in the seceding States that held secession wrong in principle, and were conscientiously attached to the Union; no doubt, also, there were men who adhered to the Union, not because they disapproved secession, but because they disliked the men at the head of the movement, or because they were keen-sighted enough to see that it could not succeed, that the Union must be the winning side, and that by adhering to it they would become the great and leading men of their respective States, which they certainly could not be under secession. Others sympathized fully with what was called the Southern cause, held firmly the right of secession, and hated cordially the Yankees, but doubted either the practicability or the expediency of secession, and opposed it till resolved on, but, after it was resolved on, yielded to none in their earnest support of it. These last comprised the immense majority of those who voted against secession. Never could those called the Southern leaders have carried the secession ordinances, never could they have carried on the war with the vigor and determination, and with such formidable armies as they collected and armed for four years, making at times the destiny of the Union well nigh doubtful, if they had not had the Southern heart with them, if they had not been most heartily supported by the overwhelming mass of the people. They led a popular, not a factious movement. No State, it is said again, has seceded, or could secede. The State is territorial, not personal, and as no State can carry its territory and population out of the Union, no State can secede. Out of the jurisdiction of the Union, or alienate them from the sovereign or national domain, very true; but out of the Union as a State, with rights, powers, or franchises in the Union, not true. Secession is political, not territorial. But the State holds from the territory or domain. The people are sovereign because attached to a sovereign territory, not the domain because held by a sovereign people, as was established by the analysis of the early Roman constitution. The territory of the States corresponds to the sacred territory of Rome, to which was attached the Roman sovereignty. That territory, once surveyed and consecrated, remained sacred and the ruling territory, and could not be divested of its sacred and governing character. The portions of the territory of the United States once erected into States and consecrated as ruling territory can never be deprived, except by foreign conquest or successful revolution, of its sacred character and inviolable rights. The State is territorial, not personal, and is constituted by public, not by private wealth, and is always respublica or commonwealth, in distinction from despotism or monarchy in its oriental sense, which is founded on private wealth, or which assumes that the authority to govern, or sovereignty, is the private estate of the sovereign. All power is a domain, but there is no domain without a dominus or lord. In oriental monarchies the dominus is the monarch; in republics it is the public or people fixed to the soil or territory, that is, the people in their territorial, and not in their personal or genealogical relation. The people of The United States are sovereign only within the territory or domain of the United States, and their sovereignty is a state, because fixed, attached, or limited to that specific territory. It is fixed to the soil, not nomadic. In barbaric nations power is nomadic and personal, or genealogical, confined to no locality, but attaches to the chief, and follows wherever he goes. The Gothic chiefs hold their power by a personal title, and have the same authority in their tribes on the Po or the Rhone as on the banks of the Elbe or the Danube. Power migrates with the chief and his people, and may be exercised wherever he and they find themselves, as a Swedish queen held when she ordered the execution of one of her subjects at Paris, without asking permission of the territorial lord. In these nations, power is a personal right, or a private estate, not a state which exists only as attached to the domain, and, as attached to the domain, exists independently of the chief or the government. The distinction is between public domain and private domain. The American system is republican, and, contrary to what some democratic politicians assert, the American democracy is territorial, not personal; not territorial because the majority of the people are agriculturists or landholders, but because all political rights, powers, or franchises are territorial. The sovereign people of the United States are sovereign only within the territory of the United States. The great body of the freemen have the elective franchise, but no one has it save in his State, his county, his town, his ward, his precinct. Out of the election district in which he is domiciled, a citizen of the United States has no more right to vote than has the citizen or subject of a foreign state. This explains what is meant by the attachment of power to the territory, and the dependence of the state on the domain. The state, in republican states, exists only as inseparably united with the public domain; under feudalism, power was joined to territory or domain, but the domain was held as a private, not as a public domain. All sovereignty rests on domain or proprietorship, and is dominion. The proprietor is the dominus or lord, and in republican states the lord is society, or the public, and the domain is held for the common or public good of all. All political rights are held from society, or the dominus, and therefore it is the elective franchise is held from society, and is a civil right, as distinguished from a natural, or even a purely personal right. As there is no domain without a lord or dominus, territory alone cannot possess any political rights or franchises, for it is not a domain. In the American system, the dominus or lord is not the particular State, but the United States, and, the domain of the whole territory, whether erected into particular States or not, is in the United States alone. The United States do not part with the dominion of that portion of the national domain included within a particular State. The State holds the domain not separately but jointly, as inseparably one of the United States: separated, it has no dominion, is no State, and is no longer a joint sovereign at all, and the territory that it included falls into the condition of any other territory held by the United States not erected into one of the United States. Lawyers, indeed, tell us that the eminent domain is in the particular State, and that all escheats are to the State, not to the United States. All escheats of private estates, but no public or general escheats. But this has nothing to do with the public domain. The United States are the dominus, but they have, by the constitution, divided the powers of government between a General government and particular State governments, and ordained that all matters of a general nature, common to all the States, should be placed under the supreme control of the former, and all matters of a private or particular character under the supreme control of the latter. The eminent domain of private estates is in the particular State, but the sovereign authority in the particular State is that of the United States expressing itself through the State government. The United States, in the States as well as out of them, is the dominus, as the States respectively would soon find if they were to undertake to alienate any part of their domain to a foreign power, or even to the citizens or subjects of a foreign State, as is also evident from the fact that the United States, in the way prescribed by the constitution, may enlarge or contract at will the rights and powers of the States. The mistake on this point grows out of the habit of restricting the action of the United States to the General government, and not recollecting that the United States govern one class of subjects through the General government and another class through State governments, but that it is one and the same authority that governs in both. The analogy borrowed from the Roman constitution, as far as applicable, proves the reverse of what is intended. The dominus of the sacred territory was the city, or the Roman state, not the sacred territory itself. The territory received the tenant, and gave him as tenant the right to a seat in the senate; but the right of the territory was derived not from the domain, but from the dominus, that is, the city. But the city could revoke its grant, as it practically did when it conferred the privileges of Roman citizenship on the provincials, and gave to plebeians seats in the senate. Moreover, nothing in Roman history indicates that to the validity of a senatus consultum it was necessary to count the vacant domains of the sacred territory. The particular domain must, under the American system, be counted when it is held by a State, but of itself alone, or even with its population, it is not a State, and therefore as a State domain is vacant and without any political rights or powers whatever. To argue that the territory and population once a State in the Union must needs always be so, would be well enough if a State in the Union were individually a sovereign state; for territory, with its population not subject to another, is always a sovereign state, even though its government has been subverted. But this is not the fact, for territory with its population does not constitute a State in the Union; and, therefore, when of a State nothing remains but territory and population, the State has evidently disappeared. It will not do then to maintain that State suicide is impossible, and that the States that adopted secession ordinances have never for a moment ceased to be States in the Union, and are free, whenever they choose, to send their representatives and senators to occupy their vacant seats in Congress. They must be reorganized first. There would also be some embarrassment to the government in holding that the States that passed the secession ordinance remain, notwithstanding, States in the Union. The citizens of a State in the Union cannot be rebels to the United States, unless they are rebels to their State; and rebels to their State they are not, unless they resist its authority and make war on it. The authority of the State in the Union is a legal authority, and the citizen in obeying it is disloyal neither to the State nor to the Union. The citizens in the States that made war on the United States did not resist their State, for they acted by its authority. The only men, on this supposition, in them, who have been traitors or rebels, are precisely the Union men who have refused to go with their respective States, and have resisted, even with armed force, the secession ordinances. The several State governments, under which the so-called rebels carried on the war for the destruction of the Union, if the States are in the Union, were legal and loyal governments of their respective States, for they were legally elected and installed, and conformed to their respective State constitutions. All the acts of these governments have been constitutional. Their entering into a confederacy for attaining a separate nationality has been legal, and the debts contracted by the States individually, or by the confederacy legally formed by them, have been legally contracted, stand good against them, and perhaps against the United States. The war against them has been all wrong, and the confederates killed in battle have been murdered by the United States. The blockade has been illegal, for no nation can blockade its own ports, and the captures and seizures under it, robberies. The Supreme Court has been wrong in declaring the war a territorial civil war, as well as the government in acting accordingly. Now, all these conclusions are manifestly false and absurd, and therefore the assumption that the States in question have all along been States in the Union cannot be sustained. It is easy to understand the resistance the Government offers to the doctrine that a State may commit suicide, or by its own act abdicate its rights and cease to be a State in the Union. It is admissible on no theory of the constitution that has been widely entertained. It is not admissible on Mr. Calhoun's theory of State sovereignty, for on that theory a State in going out of the Union does not cease to be a State but simply resumes the powers it had delegated to the General government. It cannot be maintained on Mr. Madison's or Mr. Webster's theory, that the States prior to the Union were severally sovereign, but by the Union were constituted one people; for, if this one people are understood to be a federal people, State secession would not be State suicide, but State independence; and if understood to be one consolidated or centralized people, it would be simply insurrection or rebellion against the national authority, laboring to make itself a revolution. The government seems to have understood Mr. Madison's theory in both senses--in the consolidated sense, in declaring the secessionists insurgents and rebels, and in the federal sense, in maintaining that they have never seceded, and are still States in the Union, in full possession of all their political or State rights. Perhaps, if the government, instead of borrowing from contradictory theories of the constitution which have gained currency, had examined in the light of historical facts the constitution itself, it would have been as constitutional in its doctrine as it has been loyal and patriotic, energetic and successful in its military administration. Another reason why the doctrine that State secession is State suicide has appeared so offensive to many, is the supposition entertained at one time by some of its friends, that the dissolution of the State vacates all rights and franchises held under it. But this is a mistake. The principle is well known and recognized by the jurisprudence of all civilized nations, that in the transfer of a territory from one territorial sovereign to another, the laws in force under the old sovereign remain in force after the change, till abrogated, or others are enacted in their place by the new sovereign, except such as are necessarily abrogated by the change itself of the sovereign; not, indeed, because the old sovereign retains any authority, but, because such is presumed by the courts to be the will of the new sovereign. The principle applies in the case of the death of a State in the Union. The laws of the State are territorial, till abrogated by competent authority, remain the lex loci, and are in full force. All that would be vacated would be the public rights of the State, and in no case the private rights of citizens, corporations, or laws affecting them. But the same conclusion is reached in another way. In the lapse of a State or its return to the condition of a Territory, there is really no change of sovereignty. The sovereignty, both before and after, is the United States. The sovereign authority that governs in the State government, as we have seen, though independent of the General government, is the United States. The United States govern certain matters through a General government, and others through particular State governments. The private rights and interests created, regulated, or protected by the particular State, are created, regulated, or protected by the United States, as much and as plenarily as if done by the General government, and the State laws creating, regulating, or protecting them can be abrogated by no power known to the constitution, but either the State itself, or the United States in convention legally assembled. If this were what is meant by the States that have seceded, or professed to secede, remaining States in the Union, they would, indeed, be States still in the Union, notwithstanding secession and the government would be right in saying that no State can secede. But this is not what is meant, at least not all that is meant. It is meant not only that the private rights of citizens and corporations remain, but the citizens retain all the public rights of the State, that is, the right to representation in Congress and in the electoral college, and the right to sit in the convention, which is not true. But the correction of the misapprehension that the private rights and interests are lost by the lapse of the State may remove the graver prejudices against the doctrine of State suicide, and dispose loyal and honest Union men to bear the reasons by which it is supported, and which nobody has refuted or can refute on constitutional grounds. A Territory by coming into the Union becomes a State; a State by going out of the Union becomes a Territory. CHAPTER XIII. RECONSTRUCTION. The question of reconstructing the States that seceded will be practically settled before these pages can see the light, and will therefore be considered here only so far as necessary to complete the view of the constitution of the United States. The manner in which the government proposed to settle, has settled, or will settle the question, proves that both it and the American people have only confused views of the rights and powers of the General government, but imperfectly comprehend the distinction between the legislative and executive departments of that Government, and are far more familiar with party tactics than with constitutional law. It would be difficult to imagine any thing more unconstitutional, more crude, or more glaringly impolitic than the mode of reconstruction indicated by the various executive proclamations that have been issued, bearing on the subject, or even by the bill for guaranteeing the States republican governments, that passed Congress, but which failed to obtain the President's signature. It is, in some measure, characteristic of the American government to understand how things ought to be done only when they are done and it is too late to do them in the right way. Its wisdom comes after action, as if engaged in a series of experiments. But, happily for the nation, few blunders are committed that with our young life and elasticity are irreparable, and that, after all, are greater than are ordinarily committed by older and more experienced nations. They are not of the most fatal character, and are, for the most part, such as are incident to the conceit, the heedlessness, the ardor, and the impatience of youth, and need excite no serious alarm for the future. There has been no little confusion in the public mind, and in that of the government itself, as to what reconstruction is, who has the power to reconstruct, and how that power is to be exercised. Are the States that seceded States in the Union, with no other disability than that of having no legal governments? or are they Territories subject to the Union? Is their reconstruction their erection into new States, or their restoration as States previously in the Union? Is the power to reconstruct in the States themselves? or is it in the General government? If partly in the people and partly in the General government, is the part in the General government in Congress, or in the Executive? If in Congress, can the Executive, without the authority of Congress, proceed to reconstruct, simply leaving it for Congress to accept or reject the reconstructed State? If the power is partly in the people of the disorganized States who or what defines that people, decides who may or may not vote in the reorganization? On all these questions there has been much crude, if not erroneous, thinking, and much inconsistent and contradictory action. The government started with the theory that no State had seceded or could secede, and held that, throughout, the States in rebellion continued to be States in the Union. That is, it held secession to be a purely personal and not a territorial insurrection. Yet it proclaimed eleven States to be in insurrection against the United States, blockaded their ports, and interdicted all trade and intercourse of any kind with them. The Supreme Court, in order to sustain the blockade and interdict as legal, decided the war to be not a war against simply individual or personal insurgents but "a territorial civil war." This negatived the assumption that the States that took up arms against the United States remained all the while peaceable and loyal States, with all their political rights and powers in the Union. The States in the Union are integral elements of the political sovereignty, for the sovereignty of the American nation vests in the States finite; and it is absurd to pretend that the eleven States that made the rebellion and were carrying on a formidable war against the United States, were in the Union, an integral element of that sovereign authority which was carrying on a yet more formidable war against them. Nevertheless, the government still held to its first assumption, that the States in rebellion continued to be States in the Union--loyal States, with all their rights and franchises unimpaired! That the government should at first have favored or acquiesced in the doctrine that no State had ceased to be a State in the Union, is not to be wondered at. The extent and determination of the secession movement were imperfectly understood, and the belief among the supporters of the government, and, perhaps, of the government itself, was, that it was a spasmodic movement for a temporary purpose, rather than a fixed determination to found an independent separate nationality; that it was and would be sustained by the real majority of the people of none of the States, with perhaps the exception of South Carolina; that the true policy of the government would be to treat the seceders with great forbearance, to avoid all measures likely to exasperate them or to embarrass their loyal fellow-citizens, to act simply on the defensive, and to leave the Union men in the several seceding States to gain a political victory at the polls over the secessionists, and to return their States to their normal position in the Union. The government may not have had much faith in this policy, and Mr. Lincoln's personal authority might be cited to the effect that it had not, but it was urged strongly by the Union men of the Border States. The administration was hardly seated in office, and its members were new men, without administrative experience; the President, who had been legally elected indeed, but without a majority of the popular votes, was far from having the full confidence even of the party that elected him; opinions were divided; party spirit ran high; the excitement was great, the crisis was imminent, the government found itself left by its predecessor without an army or a navy, and almost without arms or ordnance; it knew not how far it could count on popular support, and was hardly aware whom it could trust or should distrust; all was hurry and confusion; and what could the government do but to gain time, keep off active war as long as possible, conciliate all it could, and take ground which at the time seemed likely to rally the largest number of the people to its support? There were men then, warm friends of the administration, and still warmer friends of their country, who believed that a bolder, a less timid, a less cautious policy would have been wiser, that in revolutionary times boldness, what in other times would be rashness, is the highest prudence, on the side of the government as well as on the side of the revolution; that when once it has shown itself, the rebellion that hesitates, deliberates, consults, is defeated and so is the government. The seceders owed from the first their successes not to their superior organization, to their better preparation, or to the better discipline and appointment of their armies, but to their very rashness, to their audacity even, and the hesitancy, cautious and deliberation of the government. Napoleon owed his successes as general and civilian far more to the air of power he assumed, and the conviction he produced of his invincibility in the minds of his opponents, than to his civil or military strategy and tactics, admirable as they both were. But the government believed it wisest to adopt a conciliatory and, in many respects, a temporizing policy, and to rely more on weakening the secessionists in their respective States than on strengthening the hands and hearts of its own staunch and uncompromising supporters. It must strengthen the Union party in the insurrectionary States, and as this party hoped to succeed by political manipulation rather than by military force, the government must rely rather on a show of military power than on gaining any decisive battle. As it hoped, or affected to hope, to suppress the rebellion in the States that seceded through their loyal citizens, it was obliged to assume that secession was the work of a faction, of a few ambitious and disappointed politicians, and that the States were all in the Union, and continued in the loyal portion of their inhabitants. Hence its aid to the loyal Virginians to organize as the State of Virginia, and its subsequent efforts to organize the Union men in Louisiana, Arkansas, and Tennessee, and its disposition to recognize their organization in each of those States as the State itself, though including only a small minority of the territorial people. Had the facts been as assumed, the government might have treated the loyal people of each State as the State itself, without any gross usurpation of power; but, unhappily, the facts assumed were not facts, and it was soon found that the Union party in all the States that seceded, except the western part of Virginia and the eastern section of Tennessee, after secession had been carried by the popular vote, went almost unanimously with the secessionists; for they as well as the secessionists held the doctrine of State sovereignty; and to treat the handful of citizens that remained loyal in each State as the State itself, became ridiculous, and the government should have seen and acknowledged it. The rebellion being really territorial, and not personal, the State that seceded was no more continued in the loyal than in the disloyal population. While the war lasted, both were public enemies of the United States, and neither had or could have any rights as a State in the Union. The law recognizes a solidarity of all the citizens of a State, and assumes that, when a State is at war, all its citizens are at war, whether approving the war or not. The loyal people in the States that seceded incurred none of the pains and penalties of treason, but they retained none of the political rights of the State in the Union, and, in reorganizing the State after the suppression of the rebellion, they have no more right to take part than the secessionists themselves. They, as well as the secessionists, have followed the territory. It was on this point that the government committed its gravest mistake. As to the reorganization or reconstruction of the State, the whole territorial people stood on the same footing. Taking the decision of the Supreme Court as conclusive on the subject, the rebellion was territorial, and, therefore, placed all the States as States out of the Union, and retained them only as population and territory, under or subject to the Union. The States ceased to exist, that is, as integral elements of the national sovereignty. The question then occurred, are they to be erected into new States, or are they to be reconstructed and restored to the Union as the identical old States that seceded? Shall their identity be revived and preserved, or shall they be new States, regardless of that identity? There can be no question that the work to be done was that of restoration, not of creation; no tribe should perish from Israel, no star be struck from the firmament of the Union. Every inhabitant of the fallen States, and every citizen of the United States must desire them to be revived and continued with their old names and boundaries, and all true Americans wish to continue the constitution as it is, and the Union as it was. Who would see old Virginia, the Virginia of revolutionary fame, of Washington, Jefferson, Madison, of Monroe, the "Old Dominion," once the leading State of the Union, dead without hope of resurrection? or South Carolina, the land of Rutledge, Moultrie, Laurens, Hayne, Sumter, and Marion? There is something grating to him who values State associations, and would encourage State emulation and State pride, in the mutilation of the Old Dominion and the erection within her borders of the new State called West Virginia. States in the Union are not mere prefectures, or mere dependencies on the General government, created for the convenience of administration. They have an individual, a real existence of their own, as much so as have the individual members of society. They are free members, not of a confederation indeed, but of a higher political community, and reconstruction should restore the identity of their individual life, suspended for a moment by secession, but capable of resuscitation. These States had become, indeed, for a moment, territory under the Union; but in no instance had they or could they become territory that had never existed as States. The fact that the territory and people had existed as a State, could with regard to none of them be obliterated, and, therefore, they could not be erected into absolutely new States. The process of reconstructing them could not be the same as that of creating new States. In creating a new State, Congress, ex necessitate, because there is no other power except the national convention competent to do it, defines the boundaries of the new State, and prescribes the electoral people, or who may take part in the preliminary organization but in reconstructing States it does neither, for both are done by a law Congress is not competent to abrogate or modify, and which can be done only by the United States in convention assembled, or by the State itself after its restoration. The government has conceded this, and, in part, has acted on it. It preserves, except in Virginia, the old boundaries, and recognizes, or rather professes to recognize the old electoral law, only it claims the right to exclude from the electoral people those who have voluntarily taken part in the rebellion. The work to be done in States that have seceded is that of reconstruction, not creation; and this work is not and cannot be done, exclusively nor chiefly by the General government, either by the Executive or by Congress. That government can appoint military, or even provisional governors, who may designate the time and place of holding the convention of the electoral people of the disorganized State, as also the time and place of holding the elections of delegates to it, and superintend the elections so far as to see the polls are opened, and that none but qualified electors vote, but nothing more. All the rest is the work of the territorial electoral people themselves, for the State within its own sphere must, as one of the United States, be a self-governing community. The General government may concede or withhold permission to the disorganized State to reorganize, as it judges advisable, but it cannot itself reorganize it. If it concedes the permission, it must leave the whole electoral people under the preexisting electoral law free to take part in the work of reorganization, and to vote according to their own judgment. It has no authority to purge the electoral people, and say who may or may not vote, for the whole question of suffrage and the qualifications of electors is left to the State, and can be settled neither by an act of Congress nor by an Executive proclamation. If the government theory were admissible, that the disorganized States remain States in the Union, the General government could have nothing to say on the subject, and could no more interfere with elections in any one of them than it could with elections in Massachusetts or New York. But even on the doctrine here defended it can interfere with them only by way of general superintendence. The citizens have, indeed, lost their political rights, but not their private rights. Secession has not dissolved civil society, or abrogated any of the laws of the disorganized State that were in force at the time of secession. The error of the government is not in maintaining that these laws survive the secession ordinances, and remain the territorial law, or lex loci, but in maintaining that they do so by will of the State, that has, as a State, really lapsed. They do so by will of the United States, which enacted them through the individual State, and which has not in convention abrogated them, save the law authorizing slavery, and its dependent laws. This point has already been made, but as it is one of the niceties of the American constitution, it may not be amiss to elaborate it at greater length. The doctrine of Mr. Jefferson, Mr. Madison, and the majority of our jurists, would see to be that the States, under God, are severally sovereign in all matters not expressly confided to the General government, and therefore that the American sovereignty is divided, and the citizen owes a double allegiance--allegiance to his State, and allegiance to the United States--as if there was a United States distinguishable from the States. Hence Mr. Seward, in an official dispatch to our minister at the court of St. James, says: "The citizen owes allegiance to the State and to the United States." And nearly all who hold allegiance is due to the Union at all, hold that it is also due to the States, only that which is due to the United States is paramount, as that under feudalism due to the overlord. But this is not the case. There is no divided sovereignty, no divided allegiance. Sovereignty is one, and vests not in the General government or in the State government, but in the United States, and allegiance is due to the United States, and to them alone. Treason can be committed only against the United States, and against a State only because against the United States, and is properly cognizable only by the Federal courts. Hence the Union men committed no treason in refusing to submit to the secession ordinances of their respective States, and in sustaining the national arms against secession. There are two very common mistakes: the one that the States individually possess all the powers not delegated to the General government; and the other that the Union, or United States, have only delegated powers. But the United States possess all the powers of a sovereign state, and the States individually and the General government possess only such powers as the United States in convention delegate to them respectively. The sovereign is neither the General government nor the States severally, but the United States in convention. The United States are the one indivisible sovereign, and this sovereign governs alike general matters in the General government, and particular matters in the several State governments. All legal authority in either emanates from this one indivisible and plenary sovereign, and hence the law enacted by a State are really enacted by the United States, and derive from them their force and vitality as laws. Hence, as the United States survive the particular State, the lapse of the State does not abrogate the State laws, or dissolve civil society within its jurisdiction. This is evidently so, because civil society in the particular State does not rest on the State alone, nor on Congress, but on the United States. Hence all civil rights of every sort created by the individual State are really held from the United States, and therefore it was that the people of non-slaveholding States were, as citizens of the United States, responsible for the existence of slavery in the States that seceded. There is a solidarity of States in the Union as there is of individuals in each of the States. The political error of the Abolitionists was not in calling upon the people of the United States to abolish slavery, but in calling upon them to abolish it through the General government, which had no jurisdiction in the case; or in their sole capacity as men, on purely humanitarian grounds, which were the abrogation of all government and civil society itself, instead of calling upon them to do it as the United States in convention assembled, or by an amendment to the constitution of the United States in the way ordained by that constitution itself. This understood, the constitution and laws of a defunct State remain in force by virtue of the will of the United States, till the State is raised from the dead, restored to life and activity, and repeals or alters them, or till they are repealed or altered by the United States or the national convention. But as the defunct State could not, and the convention had not repealed or altered them, save in the one case mentioned, the General government had no alternative but to treat them and all rights created by them as the territorial law, and to respect them as such. What then do the people of the several States that seceded lose by secession? They lose, besides incurring, so far as disloyal, the pains and penalties of treason, their political rights, or right, as has just been said, to be in their own department self-governing communities, with the right of representation in Congress and the electoral colleges, and to sit in the national convention, or of being counted in the ratification of amendments to the constitution--precisely what it was shown a Territorial people gain by being admitted as a State into the Union. This is the difference between the constitutional doctrine and that adopted by Mr. Lincoln's and Mr. Johnson's Administrations. But what authority, on this constitutional doctrine, does the General government gain over the people of States that secede, that it has not over others! As to their internal constitution, their private rights of person or property, it gains none. It has over them, till they are reconstructed and restored to the Union, the right to institute for them provisional governments, civil or military, precisely as it has for the people of a territory that is not and has never been one of the United States; but in their reconstruction it has less, for the geographical boundaries and electoral people of each are already defined by a law which does not depend on its will, and which it can neither abrogate nor modify. Here is the difference between the constitutional doctrine and that of the so-called radicals. The State has gone, but its laws remain, so far as the United States in convention does not abrogate them; not because the authority of the State survives, but because the United States so will, or are presumed to will. The United States have by a constitutional amendment abrogated the laws of the several States authorizing slavery, and prohibited slavery forever within the jurisdiction of the Union; and no State can now be reconstructed and be admitted into the Union with a constitution that permits slavery, for that would be repugnant to the constitution of the United States. If the constitutional amendment is not recognized as ratified by the requisite number of States, it is the fault of the government in persisting in counting as States what are no States. Negro suffrage, as white suffrage, is at present a question for States. The United States guarantee to such State a republican form of government. And this guarantee, no doubt, authorizes Congress to intervene in the internal constitution of a State so far as to force it to adopt a republican form of government, but not so far as to organize a government for a State, or to compel a territorial people to accept or adopt a State constitution for themselves. If a State attempts to organize a form of government not republican, it can prevent it; and if a Territory adopts an unrepublican form, it can force it to change its constitution to one that is republican, or compel it to remain a Territory under a provisional government. But this gives the General government no authority in the organization or re-organization of States beyond seeing that the form of government adopted by the territorial people is republican. To press it further, to make the constitutional clause a pretext for assuming the entire control of the organization or re-organization of a State, is a manifest abuse--a palpable violation of the constitution and of the whole American system. The authority given by the clause is specific, and is no authority for intervention in the general reconstruction of the lapsed State. It gives authority in no question raised by secession or its consequences, and can give none, except, from within or from without, there is an overt attempt to organize a State in the Union with an unrepublican form of government. The General government gives permission to the territorial people of the defunct State to re-organize, or it contents itself with suffering them, without special recognition, to reorganize in their own way, and apply to Congress for admission, leaving it to Congress to admit them as a State, or not, according to its own discretion, in like manner as it admits a new State; but the re-organization itself must be the work of the territorial people themselves, under their old electoral law. The power that reconstructs is in the people themselves; the power that admits them, or receives them into the Union, is Congress. The Executive, therefore, has no authority in the matter, beyond that of seeing that the laws are duly complied with; and whatever power he assumes, whether by proclamation or by instructions given to the provisional governors, civil or military, is simply a usurpation of the power of Congress, which it rests with Congress to condone or not, as it may see fit. Executive proclamations, excluding a larger or a smaller portion of the electoral or territorial people from the exercise of the elective franchise in reorganizing the State, and executive efforts to throw the State into the hands of one political party or another, are an unwarrantable assumption of power, for the President, in relation to reconstruction, acts only under the peace powers of the constitution, and simply as the first executive officer of the Union. His business is to execute the laws, not to make them. His legislative authority is confined to his qualified veto on the acts of Congress, and to the recommendation to Congress of such measures as he believes are needed by the country. In reconstructing a disorganized State, neither Congress nor the Executive has any power that either has not in time of peace. The Executive, as commander-in-chief of the army, may ex necessitate, pace it ad interim under a military governor, but he cannot appoint even a provisional civil governor till Congress has created the office and given him authority to fill it; far less can be legally give instructions to the civil governor as to the mode or manner of reconstructing the disorganized State, or decide who may or may not vote in the preliminary reorganization. The Executive could do nothing of the sort, even in regard to a Territory never erected into a State. It belongs to Congress, not to the Executive, to erect Territorial or provisional governments, like those of Dacotah, Colorado, Montana, Nebraska, and New Mexico; and, Congress, not the executive, determines the boundaries of the Territory, passes the enabling act, and defines the electoral people, till the State is organized and able to act herself. Even Congress, in reconstructing and restoring to life and vigor in the Union a disorganized State, has nothing to say as to its boundaries or its electoral people, nor any right to interfere between parties in the State, to throw the reconstructed State into the hands of one or another party. All that Congress can insist on is, that the territorial people shall reconstruct with a government republican in form; that its senators and representatives in Congress, and the members of the State legislature, and all executive and judicial officers of the State shall be bound by oath or affirmation to support and defend the constitution of the United States. In the whole work the President has nothing to do with reconstruction, except to see that peace is preserved and the laws are fully executed. It may be at least doubted that the Executive has power to proclaim amnesty and pardon to rebels after the civil war has ceased, and ceased it has when the rebels have thrown down their arms and submitted; for his pardoning power is only to pardon after conviction and judgment of the court: it is certain that he has no power to proscribe or punish even traitors, except by due process of law. When the war is over he has only his ordinary peace powers. He cannot then disfranchise any portion of the electoral people of a State that seceded, even though there is no doubt that they have taken part in the rebellion, and may still be suspected of disloyal sentiments. Not even Congress can do it, and no power known to the constitution till the State is reconstructed can do it without due process of law, except the national convention. Should the President do any of the things supposed, he would both abuse the power he has and usurp power that he has not, and render himself liable to impeachment. There are many things very proper, and even necessary to be done, which are high crimes when done by an improper person or agent. The duty of the President, when there are steps to be taken or things to be done which he believes very necessary, but which are not within his competency, is, if Congress is not in session, to call it together at the earliest practicable moment, and submit the matter to its wisdom and discretion. It must be remembered that the late rebellion was not a merely personal but a territorial rebellion. In such a rebellion, embracing eleven States, and, excluding slaves, a population of at least seven millions, acting under an organized territorial government, preserving internal civil order, supporting an army and navy under regularly commissioned officers, and carrying on war as a sovereign nation--in such a territorial rebellion no one in particular can be accused and punished as a traitor. The rebellion is not the work of a few ambitious or reckless leaders, but of the people, and the responsibility of the crime, whether civil or military, is not individual, but common to the whole territorial people engaged in it; and seven millions, or the half of them, are too many to ban to exile, or even to disfranchise Their defeat and the failure of their cause must be their punishment. The interest of the country, as well the sentiment of the civilized world--it might almost be said the law of nations--demands their permission to return to their allegiance, to be treated according to their future merits, as an integral portion of the American people. The sentiment of the civilized world has much relaxed from its former severity toward political offenders. It regards with horror the savage cruelties of Great Britain to the unfortunate Jacobites, after their defeat under Charles Edward, at Culloden, in 1746, their barbarous treatment of the United Irishmen in 1798, and her brutality to the mutinous Hindoos in 1857-'58; the harshness of Russia toward the insurgent Poles, defeated in their mad attempts to recover their lost nationality; the severity of Austria, under Haynau, toward the defeated Magyars. The liberal press kept up for years, especially in England and the United States, a perpetual howl against the Papal and Neapolitan governments for arresting and imprisoning men who conspired to overthrow them. Louis Kossuth was no less a traitor than Jefferson Davis, and yet the United States solicited his release from a Turkish prison, and sent a national ship to bring him hither as the nation's guest. The people of the United States have held from the first "the right of insurrection," and have given their moral support to every insurrection in the Old or New World they discovered, and for them to treat with severity any portion of the Southern secessionists, who, at the very worst, only acted on the principles the nation had uniformly avowed and pronounced sacred, would be regarded, and justly, by the civilized world as little less than infamous. Not only the fair fame, but the interest of the Union forbids any severity toward the people lately in arms against the government. The interest of the nation demands not the death or the expulsion of the secessionists, and, least of all, of those classes proscribed by the President's proclamation of the 29th of May, 1865, nor even their disfranchisement, perpetual or temporary; but their restoration to citizenship, and their loyal co-operation with all true-hearted Americans, in hearing the wounds inflicted on the whole country by the civil war. There need be no fear to trust them. Their cause is lost; they may or may not regret it, but lost it is, and lost forever. They appealed to the ballot-box, and were defeated; they appealed from the ballot-box to arms, to war, and have been again defeated, terribly defeated. They know it and feel it. There is no further appeal for them; the judgment of the court of last resort has been rendered, and rendered against them. The cause is finished, the controversy closed, never to be re-opened. Henceforth the Union is invincible, and it is worse than idle to attempt to renew the war against it. Henceforth their lot is bound up with that of the nation, and all their hopes and interests, for themselves and their children, and their children's children, depend on their being permitted to demean themselves henceforth as peaceable and loyal American citizens. They must seek their freedom, greatness, and glory in the freedom, greatness, and glory of the American republic, in which, after all, they can be far freer, greater, more glorious than in a separate and independent confederacy. All the arguments and considerations urged by Union men against their secession, come back to them now with redoubled force to keep them henceforth loyal to the Union. They cannot afford to lose the nation, and the nation cannot afford to lose them. To hang or exile them, and depopulate and suffer to run to waste the lands they had cultivated, were sad thrift, sadder than that of deporting four millions of negroes and colored men. To exchange only those excepted from amnesty and pardon by President Johnson, embracing some two millions or more, the very pars sanior of the Southern population, for what would remain or flock in to supply their place, would be only the exchange of Glaucus and Diomed, gold for brass; to disfranchise them, confiscate their estates, and place them under the political control of the freedmen, lately their slaves, and the ignorant and miserable "white trash," would be simply to render rebellion chronic, and to convert seven millions of Americans, willing and anxious to be free, loyal American citizens, eternal enemies. They have yielded to superior numbers and resources; beaten, but not disgraced, for they have, even in rebellion, proved themselves what they are--real Americans. They are the product of the American soil, the free growth of the American republic, and to disgrace them were to disgrace the whole American character and people. The wise Romans never allowed a triumph to a Roman general for victories, however brilliant, won over Romans. In civil war, the victory won by the government troops is held to be a victory for the country, in which all parties are victors, and nobody is vanquished. It was as truly for the good of the secessionists to fail, as it was for those, who sustained the government to succeed; and the government having forced their submission and vindicated its own authority, it should now leave them to enjoy, with others, the victory which it his won for the common good of all. When war becomes a stern necessity, when it breaks out, and while it lasts, humanity requires it to be waged in earnest, prosecuted with vigor, and made as damaging, as distressful to the enemy as the laws of civilized nations permit. It is the way to bring it to a speedy close, and to save life and property. But when it is over, when the enemy submits, and peace returns, the vanquished should be treated with gentleness and love. No rancor should remain, no vengeance should be sought; they who met in mortal conflict on the battle-field should be no longer enemies, but embrace as comrades, as friends, as brothers. None but a coward kicks a fallen foe; a brave people is generous, and the victors in the late war can afford to be generous generously. They fought for the Union, and the Union has no longer an enemy; their late enemies are willing and proud to be their countrymen, fellow-citizens, and friends; and they should look to it that small politicians do not rob them in the eyes of the world, by unnecessary and ill-timed severity to the submissive, of the glory of being, as they are, a great, noble, chivalric, generous, and magnanimous people. The government and the small politicians, who usually are the most influential with all governments, should remember that none of the secessionists, however much in error they have been, have committed the moral crime of treason. They held, with the majority of the American people, the doctrine of State sovereignty, and on that doctrine they had a right to secede, and have committed no treason, been guilty of no rebellion. That was, indeed, no reason why the government should not use all its force, if necessary, to preserve the national unity and the integrity of the national domain; but it is a reason, and a sufficient reason, why no penalty of treason should be inflicted on secessionists or their leaders, after their submission, and recognition of the sovereignty of the United States as that to which they owe allegiance. None of the secessionists have been rebels or traitors, except in outward act, and there can, after the act has ceased, be no just punishment where there has been no criminal intent. Treason is the highest crime, and deserves exemplary punishment; but not where there has been no treasonable intent, where they who committed it did not believe it was treason, and on principles held by the majority of their countrymen, and by the party that had generally held the government, there really was no treason. Concede State sovereignty, and Jefferson Davis was no traitor in the war he made on the United States, for he made none till his State had seceded. He could not then be arraigned for his acts after secession, and at most, only for conspiracy, if at all, before secession. But, if you permit all to vote in the re-organization of the State who, under the old electoral law, have the elective franchise, you throw the State into the hands of those who have been disloyal to the Union. If so, and you cannot trust them, the remedy is not in disfranchising the majority, but in prohibiting re-organization, and in holding the territorial people still longer under the provisional government, civil or military. The old electoral law disqualifies all who have been convicted of treason either to the State or the United States, and neither Congress nor the Executive can declare any others disqualified on account of disloyalty. But you must throw the State into the hands of those who took part, directly or indirectly, in the rebellion, if you reconstruct the States at all, for they are undeniably the great body of the territorial people in all the States that seceded. These people having submitted, and declared their intention to reconstruct the State as a State in the Union, you must amend the constitution of the United States, unless they are convicted of a disqualifying crime by due process of law, before you can disfranchise them. It is impossible to reconstruct any one of the disorganized States with those alone, or as the dominant party, who have adhered to the Union throughout the fearful struggle, as self-governing States. The State, resting on so small a portion of the people, would have no internal strength, no self-support, and could stand only as upheld by federal arms, which would greatly impair the free and healthy action of the whole American system. The government attempted to do it in Virginia, Louisiana, Arkansas, and Tennessee, before the rebellion was suppressed, but without authority and without success. The organizations, effected at great expense, and sustained only by military force, were neither States nor State governments, nor capable of being made so by any executive or congressional action. If the disorganized States, as the government held, were still States in the Union, these organizations were flagrantly revolutionary, as effected not only without, but in defiance of State authority; if they had seceded and ceased to be States, as was the fact, they were equally unconstitutional and void of authority, because not created by the free suffrage of the territorial people, who alone are competent to construct or reconstruct a state. If the Unionists had retained the State organization and government, however small their number, they would have held the State, and the government would have been bound to recognize and to defend them as such with all the force of the Union. The rebellion would then have been personal, not territorial. But such was not the case. The State organization, the State government, the whole State authority rebelled, made the rebellion territorial, not personal, and left the Unionists, very respectable persons assuredly, residing, if they remained at home, in rebel territory, traitors in the eye of their respective States, and shorn of all political status or rights. Their political status was simply that of the old loyalists, or adherents of the British crown in the American war for Independence, and it was as absurd to call them the State, as it would have been for Great Britain to have called the old Tories the colonies. The theory on which the government attempted to re-organize the disorganized States rested on two false assumptions: first, that the people are personally sovereign; and, second, that all the power of the Union vests in the General government. The first, as we have seen, is the principle of so-called "squatter sovereignty," embodied in the famous Kansas-Nebraska Bill, which gave birth, in opposition, to the Republican party of 1856. The people are sovereign only as the State, and the State is inseparable from the domain. The Unionists without the State government, without any State organization, could not hold the domain, which, when the State organization is gone, escheats to the United States, that is to say, ceases to exist. The American democracy is territorial, not personal. The General government, in time of war or rebellion, is indeed invested, for war purposes, with all the power of the Union. This is the war power. But, though apparently unlimited, the war power is yet restricted to war purposes, and expires by natural limitation when peace returns; and peace returns, in a civil war, when the rebels have thrown down their arms and submitted to the national authority, and without any formal declaration. During the war, or while the rebellion lasts, it can suspend the civil courts, the civil laws, the State constitutions, any thing necessary to the success of the war--and of the necessity the military authorities are the judges; but it cannot abolish, abrogate, or reconstitute them. On the return of peace they revive of themselves in all their vigor. The emancipation proclamation of the President, if it emancipated the slaves in certain States and parts of States, and if those whom it emancipated could not be re-enslaved, did not anywhere abolish slavery, or change the laws authorizing it; and if the Government should be sustained by Congress or by the Supreme Court in counting the disorganized States as States in the Union, the legal status of slavery throughout the Union, with the exception of Maryland, and perhaps Missouri, is what it was before the war.[1] The Government undoubtedly supposed, in the reconstructions it attempted, that it was acting under the war power; but as reconstruction can never be necessary for war purposes, and as it is in its very nature a work of peace, incapable of being effected by military force, since its validity depends entirely on its being the free action of the territorial people to be reconstructed, the General government had and could have, with regard to it, only its ordinary peace powers. Reconstruction is jure pacis, not jure belli. Yet such illegal organizations, though they are neither States nor State governments, and incapable of being legalized by any action of the Executive or of Congress, may, nevertheless, be legalized by being indorsed or acquiesced in by the territorial people. They are wrong, as are all usurpations; they are undemocratic, inasmuch as they attempt to give the minority the power to rule the majority; they are dangerous inasmuch as they place the State in the hands of a party that can stand only as supported by the General government, and thus destroy the proper freedom and independence of the State, and open the door to corruption, tend to keep alive rancor and ill feeling, and to retard the period of complete pacification, which might be effected in three months as well as in three years, or twenty years; yet they can become legal, as other governments illegal in their origin become legal, with time and popular acquiescence. The right way is always the shortest and easiest; but when a government must oftener follow than lead the public, it is not always easy to hit the right way, and still less easy to take it. The general instincts of the people are right as to the end to be gained, but seldom right as to the means of gaining it; and politicians of the Union party, as well as of the late secession party, have an eye in reconstructing, to the future political control of the State when it is reconstructed. The secessionists, if permitted to retain their franchise, would, even if they accepted abolition, no doubt re-organize their respective States on the basis of white suffrage, and so would the Unionists, if left to themselves. There is no party at the South prepared to adopt negro suffrage, and there would be none at the North if the negroes constituted any considerable portion of the population. As the reconstruction of a State cannot be done under the war power, the General government can no more enfranchise than it can disfranchise any portion of the territorial people, and the question of negro suffrage must be left, where the constitution leaves it--to the States severally, each to dispose of it for itself. Negro suffrage will, no doubt, come in time, as soon as the freedmen are prepared for it, and the danger is that it will be attempted too soon. It would be a convenience to have the negro vote in the reconstruction of the States disorganized by secession, for it would secure their re-construction with antislavery constitutions, and also make sure of the proposed antislavery amendment to the Constitution of the United States; but there is no power in Congress to enfranchise the negroes in the States needing reconstruction, and, once assured of their freedom, the freedmen would care little for the Union, of which they understand nothing. They would vote, for the most part, with their former masters, their employers, the wealthier and more intelligent classes, whether loyal or disloyal; for, as a rule, these will treat them with greater personal consideration and kindness than others. The dislike of the negro, and hostility to negro equality, increase as you descend in the social scale. The freedmen, without political instruction or experience, who have had no country, no domicile, understand nothing of loyalty or of disloyalty. They have strong local attachments, but they can have no patriotism. If they adhered to the Union in the rebellion, fought for it, bled for it, it was not from loyalty, but because they knew that their freedom could come only from the success of the Union arms. That freedom secured, they have no longer any interest in the Union, and their local attachments, personal associations, habits, tastes, likes and dislikes, are Southern, not Northern. In any contest between the North and the South, they would take, to a man, the Southern side. After the taunts of the women, the captured soldiers of the Union found, until nearly the last year of the war, nothing harder to bear, when marched as prisoners into Richmond, than the antics and hootings of the negroes. Negro suffrage on the score of loyalty, is at best a matter of indifference to the Union, and as the elective franchise is not a natural right, but a civil trust, the friends of the negro should, for the present, be contented with securing him simply equal rights of person and property. [1] This was the case in August, 1865. It may be quite otherwise before these pages see the light. CHAPTER XIV. POLITICAL TENDENCIES. The most marked political tendency of the American people has been, since 1825, to interpret their government as a pure and simple democracy, and to shift it from a territorial to a purely popular basis, or from the people as the state, inseparably united to the national territory or domain, to the people as simply population, either as individuals or as the race. Their tendency has unconsciously, therefore, been to change their constitution from a republican to a despotic, or from a civilized to a barbaric constitution. The American constitution is democratic, in the sense that the people are sovereign that all laws and public acts run in their name; that the rulers are elected by them, and are responsible to them; but they are the people territorially constituted and fixed to the soil, constituting what Mr. Disraeli, with more propriety perhaps than he thinks, calls a "territorial democracy." To this territorial democracy, the real American democracy, stand opposed two other democracies--the one personal and the other humanitarian--each alike hostile to civilization, and tending to destroy the state, and capable of sustaining government only on principles common to all despotisms. In every man there is a natural craving for personal freedom and unrestrained action--a strong desire to be himself, not another--to be his own master, to go when and where he pleases, to do what he chooses, to take what he wants, wherever he can find it, and to keep what he takes. It is strong in all nomadic tribes, who are at once pastoral and predatory, and is seldom weak in our bold frontier-men, too often real "border ruffians." It takes different forms in different stages of social development, but it everywhere identifies liberty with power. Restricted in its enjoyment to one man, it makes him chief, chief of the family, the tribe, or the nation; extended in its enjoyment to the few, it founds an aristocracy, creates a nobility--for nobleman meant originally only freeman, as it does his own consent, express or constructive. This is the so-called Jeffersonian democracy, in which government has no powers but such as it derives from the consent of the governed, and is personal democracy or pure individualism philosophically considered, pure egoism, which says, "I am God." Under this sort of democracy, based on popular, or rather individual sovereignty, expressed by politicians when they call the electoral people, half seriously, half mockingly, "the sovereigns," there obviously can be no state, no social rights or civil authority; there can be only a voluntary association, league, alliance, or confederation, in which individuals may freely act together as long as they find it pleasant, convenient, or useful, but from which they may separate or secede whenever they find it for their interest or their pleasure to do so. State sovereignty and secession are based on the same democratic principle applied to the several States of the Union instead of individuals. The tendency to this sort of democracy has been strong in large sections of the American people from the first, and has been greatly strengthened by the general acceptance of the theory that government originates in compact. The full realization of this tendency, which, happily, is impracticable save in theory, would be to render every man independent alike of every other man and of society, with full right and power to make his own will prevail. This tendency was strongest in the slaveholding States, and especially, in those States, in the slaveholding class, the American imitation of the feudal nobility of mediaeval Europe; and on this side the war just ended was, in its most general expression, a war in defence of personal democracy or the sovereignty of the people individually, against the humanitarian democracy, represented by the abolitionists, and the territorial democracy, represented by the Government. This personal democracy has been signally defeated in the defeat of the late confederacy, and can hardly again become strong enough to be dangerous. But the humanitarian democracy, which scorns all geographical lines, effaces all in individualities, and professes to plant itself on humanity alone, has acquired by the war new strength, and is not without menace to our future. The solidarity of the race, which is the condition of all human life, founds, as we have seen, society, and creates what are called social rights, the rights alike of society in regard to individuals, and of individuals in regard to society. Territorial divisions or circumscriptions found particular societies, states, or nations; yet as the race is one and all its members live by communion with God through it and by communion one with another, these particular states or nations are never absolutely independent of each other but, bound together by the solidarity of the race, so that there is a real solidarity of nations as well as of individuals--the truth underlying Kossuth's famous declaration of the solidarity of peoples. The solidarity of nations is the basis of international law, binding on every particular nation, and which every civilized nation recognizes and enforces on its own subjects or citizens through its own courts as an integral part of its own municipal or national law. The personal or individual right is therefore restricted by the rights of society, and the rights of the particular society or nation are limited by international law, or the rights of universal society--the truth the ex-governor of Hungary overlooked. The grand error of Gentilism was in denying the unity and therefore the solidarity of the race, involved in its denial or misconception of the unity of God. It therefore was never able to assign any solid basis to international law, and gave it only a conventional or customary authority, thus leaving the jus gentium, which it recognized in deed, without any real foundation in the constitution of things, or authority in the real world. Its real basis is in the solidarity of the race, which has its basis in the unity of God, not the dead or abstract unity asserted by the old Eleatics, the Neo-Platonists, or the modern Unitarians, but the living unity consisting in the threefold relation in the Divine Essence, of Father, Son, and Holy Ghost, as asserted by Christian revelation, and believed, more or less intelligently, by all Christendom. The tendency in the Southern States has been to overlook the social basis of the state, or the rights of society founded on the solidarity of the race, and to make all rights and powers personal, or individual; and as only the white race has been able to assert and maintain its personal freedom, only men of that race are held to have the right to be free. Hence the people of those States felt no scruple in holding the black or colored race as slaves. Liberty, said they, is the right only of those who have the ability to assert and maintain it. Let the negro prove that he has this ability by asserting and maintaining his freedom, and he will prove his right to be free, and that it is a gross outrage, a manifest injustice, to enslave him; but, till then, let him be my servant, which is best for him and for me. Why ask me to free him? I shall by doing so only change the form of his servitude. Why appeal to me! Am I my brother's keeper? Nay, is he my brother? Is this negro, more like an ape or a baboon than a human being, of the same race with myself? I believe it not. But in some instances, at least, my dear slaveholder, your slave is literally your brother, and sometimes even your son, born of your own daughter. The tendency of the Southern democrat was to deny the unity of the race, as well as all obligations of society to protect the weak and helpless, and therefore all true civil society. At the North there has been, and is even yet, an opposite tendency--a tendency to exaggerate the social element, to overlook the territorial basis of the state, and to disregard the rights of individuals. This tendency has been and is strong in the people called abolitionists. The American abolitionist is so engrossed with the unity that he loses the solidarity of the race, which supposes unity of race and multiplicity of individuals; and falls to see any thing legitimate and authoritative in geographical divisions or territorial circumscriptions. Back of these, back of individuals, he sees humanity, superior to individuals, superior to states, governments, and laws, and holds that he may trample on them all or give them to the winds at the call of humanity or "the higher law." The principle on which he acts is as indefensible as the personal or egoistical democracy of the slaveholders and their sympathizers. Were his socialistic tendency to become exclusive and realized, it would found in the name of humanity a complete social despotism, which, proving impracticable from its very generality, would break up in anarchy, in which might makes right, as in the slaveholder's democracy. The abolitionists, in supporting themselves on humanity in its generality, regardless of individual and territorial rights, can recognize no state, no civil authority, and therefore are as much out of the order of civilization, and as much in that of barbarism, as is the slaveholder himself. Wendell Phillips is as far removed from true Christian civilization as was John C. Calhoun, and William Lloyd Garrison is as much of a barbarian and despot in principle and tendency as Jefferson Davis. Hence the great body of the people in the non-slaveholding States, wedded to American democracy as they were and are could never, as much as they detested slavery, be induced to make common cause with the abolitionists, and their apparent union in the late civil war was accidental, simply owing to the fact that for the time the social democracy and the territorial coincides or had the same enemy. The great body of the loyal people instinctively felt that pure socialism is as incompatible with American democracy as pure individualism; and the abolitionists are well aware that slavery has been abolished, not for humanitarian or socialistic reasons but really for reasons of state, in order to save the territorial democracy. The territorial democracy would not unite to eliminate even so barbaric an element as slavery, till the rebellion gave them the constitutional right to abolish it; and even then so scrupulous were they, that they demanded a constitutional amendment, so as to be able to make clean work of it, without any blow to individual or State rights. The abolitionists were right in opposing slavery, but not in demanding its abolition on humanitarian or socialistic grounds. Slavery is really a barbaric element, and is in direct antagonism to American civilization. The whole force of the national life opposes it, and must finally eliminate it, or become itself extinct and it is no mean proof of their utter want of sympathy with all the living forces of modern civilization, that the leading men of the South and their prominent friends at the North really persuaded themselves that with cotton, rice, and tobacco, they could effectually resist the anti-slavery movement, and perpetuate their barbaric democracy. They studied the classics, they admired Greece and Rome, and imagined that those nations became great by slavery, instead of being great even in spite of slavery. They failed to take into the account the fact that when Greece and Rome were in the zenith of their glory, all contemporary nations were also slaveholding nations, and that if they were the greatest and most highly civilized nations of their times, they were not fitted to be the greatest and most highly civilized nations of all times. They failed also to perceive that, if the Graeco-Roman republic did not include the whole territorial people in the political people, it yet recognized both the social and the territorial foundation of the state, and never attempted to rest it on pure individualism; they forgot, too, that Greece and Rome both fell, and fell precisely through internal weakness caused by the barbarism within, not through the force of the barbarism beyond their frontiers. The world has changed since the time when ten thousand of his slaves were sacrificed as a religious offering to the manes of a single Roman master. The infusion of the Christian dogma of the unity and solidarity of the race into the belief, the life, the laws, the jurisprudence of all civilized nations, has doomed slavery and every species of barbarism; but this our slaveholding countrymen saw not. It rarely happens that in any controversy, individual or national, the real issue is distinctly presented, or the precise question in debate is clearly and distinctly understood by either party. Slavery was only incidentally involved in the late war. The war was occasioned by the collision of two extreme parties; but it was itself a war between civilization and barbarism, primarily between the territorial democracy and the personal democracy, and in reality, on the part of the nation, as much a war against the socialism of the abolitionist as against the individualism of the slaveholder. Yet the victory, though complete over the former, is only half won over the latter, for it has left the humanitarian democracy standing, and perhaps for the moment stronger than ever. The socialistic democracy was enlisted by the territorial, not to strengthen the government at home, as it imagines, for that it did not do, and could not do, since the national instinct was even more opposed to it than to the personal democracy; but under its antislavery aspect, to soften the hostility of foreign powers, and ward off foreign intervention, which was seriously threatened. The populations of Europe, especially of France and England, were decidedly anti-slavery, and if the war here appeared to them a war, not solely for the unity of the nation and the integrity of its domain, as it really was, in which they took and could take no interest, but a war for the abolition of slavery, their governments would not venture to intervene. This was the only consideration that weighed with Mr. Lincoln, as he himself assured the author, and induced him to issue his Emancipation Proclamation; and Europe rejoices in our victory over the rebellion only so far as it has liberated the slaves, and honors the late President only as their supposed liberator, not as the preserver of the unity and integrity of the nation. This is natural enough abroad, and proves the wisdom of the anti-slavery policy of the government, which had become absolutely necessary to save the Republic long before it was adopted; yet it is not as the emancipator of some two or three millions of slaves that the American patriot cherishes the memory of Abraham Lincoln, but, aided by the loyal people, generals of rare merit, and troops of unsurpassed bravery and endurance, as the saviour of the American state, and the protector of modern civilization. His anti-slavery policy served this end, and therefore was wise, but he adopted it with the greatest possible reluctance. There were greater issues in the late war than negro slavery or negro freedom. That was only an incidental issue, as the really great men of the Confederacy felt, who to save their cause were willing themselves at last to free and arm their own negroes, and perhaps were willing to do it even at first. This fact alone proves that they had, or believed they had, a far more important cause than the preservation of negro slavery. They fought for personal democracy, under the form of State sovereignty, against social democracy; for personal freedom and independence against social or humanitarian despotism; and so far their cause was as good as that against which they took up arms; and if they had or could have fought against that, without fighting at the same time against the territorial, the real American, the only civilized democracy, they would have succeeded. It is not socialism nor abolitionism that has won; nor is it the North that has conquered. The Union itself has won no victories over the South, and it is both historically and legally false to say that the South has been subjugated. The Union has preserved itself and American civilization, alike for North and South, East and West. The armies that so often met in the shock of battle were not drawn up respectively by the North and the South, but by two rival democracies, to decide which of the two should rule the future. They were the armies of two mutually antagonistic systems, and neither army was clearly and distinctly conscious of the cause for which it was shedding its blood; each obeyed instinctively a power stronger than itself, and which at best it but dimly discerned. On both sides the cause was broader and deeper than negro slavery, and neither the proslavery men nor the abolitionists have won. The territorial democracy alone has won, and won what will prove to be a final victory over the purely personal democracy, which had its chief seat in the Southern States, though by no means confined to them. The danger to American democracy from that quarter is forever removed, and democracy à la Rousseau has received a terrible defeat throughout the world, though as yet it is far from being aware of it. But in this world victories are never complete. The socialistic democracy claims the victory which has been really won by the territorial democracy, as if it had been socialism, not patriotism, that fired the hearts and nerved the arms of the brave men led by McClellan, Grant, and Sherman. The humanitarians are more dangerous in principle than the egoists, for they have the appearance of building on a broader and deeper foundation, of being more Christian, more philosophic, more generous and philanthropic; but Satan is never more successful than under the guise of an angel of light. His favorite guise in modern times is that of philanthropy. He is a genuine humanitarian, and aims to persuade the world that humanitarianism is Christianity, and that man is God; that the soft and charming sentiment of philanthropy is real Christian charity; and he dupes both individuals and nations, and makes them do his work, when they believe they are earnestly and most successfully doing the work of God. Your leading abolitionists are as much affected by satanophany as your leading confederates, nor are they one whit more philosophical or less sophistical. The one loses the race, the other the individual, and neither has learned to apply practically that fundamental truth that there is never the general without the particular, nor the particular without the general, the race without individuals, nor individuals without the race. The whole race was in Adam, and fell in him, as we are taught by the doctrine of original sin, or the sin of the race, and Adam was an individual, as we are taught in the fact that original sin was in him actual or personal sin. The humanitarian is carried away by a vague generality, and loses men in humanity, sacrifices the rights of men in a vain endeavor to secure the rights of man, as your Calvinist or his brother Jansenist sacrifices the rights of nature in order to secure the freedom of grace. Yesterday he agitated for the abolition of slavery, to-day he agitates for negro suffrage, negro equality, and announces that when he has secured that he will agitate for female suffrage and the equality of the sexes, forgetting or ignorant that the relation of equality subsists only between individuals of the same sex; that God made the man the head of the woman, and the woman for the man, not the man for the woman. Having obliterated all distinction of sex in politics, in social, industrial, and domestic arrangements, he must go farther, and agitate for equality of property. But since property, if recognized at all, will be unequally acquired and distributed, he must go farther still, and agitate for the total abolition of property, as an injustice, a grievous wrong, a theft, with M. Proudhon, or the Englishman Godwin. It is unjust that one should have what another wants, or even more than another. What right have you to ride in your coach or astride your spirited barb while I am forced to trudge on foot? Nor can our humanitarian stop there. Individuals are, and as long as there are individuals will be, unequal: some are handsomer and some are uglier, some wiser or sillier, more or less gifted, stronger or weaker, taller or shorter, stouter or thinner than others, and therefore some have natural advantages which others have not. There is inequality, therefore injustice, which can be remedied only by the abolition of all individualities, and the reduction of all individuals to the race, or humanity, man in general. He can find no limit to his agitation this side of vague generality, which is no reality, but a pure nullity, for he respects no territorial or individual circumscriptions, and must regard creation itself as a blunder. This is not fancy, for he has gone very nearly as far as it is here shown, if logical, he must go. The danger now is that the Union victory will, at home and abroad, be interpreted as a victory won in the interest of social or humanitarian democracy. It was because they regarded the war waged on the side of the Union as waged in the interest of this terrible democracy, that our bishops and clergy sympathized so little with the Government in prosecuting it; not, as some imagined, because they were disloyal, hostile to American or territorial democracy, or not heartily in favor of freedom for all men, whatever their race or complexion. They had no wish to see slavery prolonged, the evils of which they, better than any other class of men, knew, and more deeply deplored; none would have regretted more than they to have seen the Union broken up; but they held the socialistic or humanitarian democracy represented by Northern abolitionists as hostile alike to the Church and to civilization. For the same reason that they were backward or reserved in their sympathy, all the humanitarian sects at home and abroad were forward and even ostentatious in theirs. The Catholics feared the war might result in encouraging La Republiques democratique et sociale; the humanitarian sects trusted that it would. If the victory of the Union should turn out to be a victory for the humanitarian democracy, the civilized world will have no reason to applaud it. That there is some danger that for a time the victory will be taken as a victory for humanitarianism or socialism, it would be idle to deny. It is so taken now, and the humanitarian party throughout the world are in ecstasies over it. The party claim it. The European Socialists and Red Republicans applaud it, and the Mazzinis and the Garibaldis inflict on us the deep humiliation of their congratulations. A cause that can be approved by the revolutionary leaders of European Liberals must be strangely misunderstood, or have in it some infamous element. It is no compliment to a nation to receive the congratulations of men who assert not only people-king, but people-God; and those Americans who are delighted with them are worse enemies to the American democracy than ever were Jefferson Davis and his fellow conspirators, and more contemptible, as the swindler is more contemptible than the highwayman. But it is probable the humanitarians have reckoned without their host. Not they are the real victors. When the smoke of battle has cleared away, the victory, it will be seen, has been won by the Republic, and that that alone has triumphed. The abolitionists, in so far as they asserted the unity of the race and opposed slavery as a denial of that unity, have also won; but in so far as they denied the reality or authority of territorial and individual circumscriptions, followed a purely socialistic tendency, and sought to dissolve patriotism into a watery sentimentality called philanthropy, have in reality been crushingly defeated, as they will find when the late insurrectionary States are fully reconstructed. The Southern or egoistical democrats, so far as they denied the unity and solidarity of the race, the rights of society over individuals, and the equal rights of each and every individual in face of the state, or the obligations of society to protect the weak and help the helpless, have been also defeated; but so far as they asserted personal or individual rights which society neither gives nor can take away, and so far as they asserted, not State sovereignty, but State rights, held independently of the General government, and which limit its authority and sphere of action, they share in the victory, as the future will prove. European Jacobins, revolutionists, conspiring openly or secretly against all legitimate authority, whether in Church or State, have no lot or part in the victory of the American people: not for them nor for men with their nefarious designs or mad dreams, have our brave soldiers fought, suffered and bled for four years of the most terrible war in modern times, and against troops as brave and as well led as themselves; not for them has the country sacrificed a million of lives, and contracted a debt of four thousand millions of dollars, besides the waste and destruction that it will take years of peaceful industry to repair. They and their barbaric democracy have been defeated, and civilization has won its most brilliant victory in all history. The American democracy has crushed, actually or potentially, every species of barbarism in the New World, asserted victoriously the state, and placed the government definitively on the side of legitimate authority, and made its natural association henceforth with all civilized governments--not with the revolutionary movements to overthrow them. The American people will always be progressive as well as conservative; but they have learned a lesson, which they much needed against false democracy: civil war has taught them that "the sacred right of insurrection" is as much out of place in a democratic state as in an aristocratic or a monarchical state; and that the government should always be clothed with ample authority to arrest and punish whoever plots its destruction. They must never be delighted again to have their government send a national ship to bring hither a noted traitor to his own sovereign as the nation's guest. The people of the Northern States are hardly less responsible for the late rebellion than the people of the Southern States. Their press had taught them to call every government a tyranny that refused to remain quiet while the traitor was cutting its throat or assassinating the nation, and they had nothing but mad denunciations of the Papal, the Austrian, and the Neapolitan governments for their severity against conspirators and traitors. But their own government has found it necessary for the public safety to be equally arbitrary, prompt, and severe, and they will most likely require it hereafter to co-operate with the governments of the Old World in advancing civilization, instead of lending all its moral support, as heretofore, to the Jacobins, revolutionists, socialists, and humanitarians, to bring back the reign of barbarism. The tendency to individualism has been sufficiently checked by the failure of the rebellion, and no danger from the disintegrating element, either in the particular State or in the United States, is henceforth to be apprehended. But the tendency in the opposite direction may give the American state some trouble. The tendency now is, as to the Union, consolidation, and as to the particular state, humanitarianism, socialism, or centralized democracy. Yet this tendency, though it may do much mischief, will hardly become exclusive. The States that seceded, when restored, will always, even in abandoning State sovereignty, resist it, and still assert State rights. When these States are restored to their normal position, they will always be able to protect themselves against any encroachments on their special rights by the General government. The constitution, in the distribution of the powers of government, provides the States severally with ample means to protect their individuality against the centralizing tendency of the General government, however strong it may be. The war has, no doubt, had a tendency to strengthen the General government, and to cause the people, to a great extent, to look upon it as the supreme and exclusive national government, and to regard the several State governments as subordinate instead of co-ordinate governments. It is not improbable that the Executive, since the outbreak of the rebellion, has proceeded throughout on that supposition, and hence his extraordinary assumptions of power; but when once peace is fully re-established and the States have all resumed their normal position in the Union, every State will be found prompt enough to resist any attempt to encroach on its constitutional rights. Its instinct of self-preservation will lead it to resist, and it will be protected by both its own judiciary and that of the United States. The danger that the General government will usurp the rights of the States is far less than the danger that the Executive will usurp all the powers of Congress and the judiciary. Congress, during the rebellion, clothed the President, as far as it could, with dictatorial powers, and these powers the Executive continues to exercise even after the rebellion is suppressed. They were given and held under the rights of war, and for war purposes only, and expired by natural limitation when the war ceased; but the Executive forgets this, and, instead of calling Congress together and submitting the work of reconstruction of the States that seceded to its wisdom and authority, undertakes to reconstruct them himself, as if he were an absolute sovereign; 372 and the people seem to like it. He might and should, as commander-in-chief of the army and navy, govern them as military departments, by his lieutenants, till Congress could either create provisional civil governments for them or recognize them as self-governing States in the Union; but he has no right, under the constitution nor under the war power, to appoint civil governors, permanent or provisional; and every act he has done in regard to reconstruction is sheer usurpation, and done without authority and without the slightest plea of necessity. His acts in this respect, even if wise and just in themselves, are inexcusable, because done by one who has no legal right to do them. Yet his usurpation is apparently sustained by public sentiment, and a deep wound is inflicted on the constitution, which will be long in healing. The danger in this respect is all the greater because it did not originate with the rebellion, but had manifested itself for a long time before. There is a growing disposition on the part of Congress to throw as much of the business of government as possible into the hands of the Executive. The patronage the Executive wields, even in times of peace, is so large that he has indirectly an almost supreme control over the legislative branch of the government. For this, which is, and, if not checked will continue to be, a growing evil, there is no obvious remedy, unless the President is chosen for a longer term of office and made ineligible for a second term, and the mischievous doctrine of rotation in office is rejected as incompatible with the true interests of the public. Here is matter for the consideration of the American statesman. But as to the usurpations of the Executive in these unsettled times, they will be only temporary, and will cease when the States are all restored. They are abuses, but only temporary abuses, and the Southern States, when restored to the Union, will resume their rights in their own sphere, as self-governing communities, and legalize or undo the unwarrantable acts of the Federal Executive. The socialistic and centralizing tendency in the bosom of the individual States is the most dangerous, but it will not be able to become predominant; for philanthropy, unlike charity, does not begin at home, and is powerless unless it operates at a distance. In the States in which the humanitarian tendency is the strongest, the territorial democracy has its most effective organization. Prior to the outbreak of the rebellion the American people had asserted popular sovereignty, but had never rendered an account to themselves in what sense the people are or are not sovereign. They had never distinguished the three sorts of democracy from one another, asked themselves which of the three is the distinctively American democracy. For them, democracy was democracy, and those who saw dangers ahead sought to avoid them either by exaggerating one or the other of the two exclusive tendencies, or else by restraining democracy itself through restrictions on suffrage. The latter class began to distrust universal suffrage, to lose faith in the people, and to dream of modifying the American constitution so as to make it conform more nearly to the English model. The war has proved that the were wrong, for nothing is more certain than that the people have saved the national unity and integrity almost in spite of their government. The General government either was not disposed or was afraid to take a decided stand against secession, till forced to do it by the people themselves. No wise American can henceforth distrust American democracy. The people may be trusted. So much is settled. But as the two extremes were equally democratic, as the secessionists acted in the name of popular sovereignty, and as the humanitarians were not unwilling to allow separation, and would not and did not engage in the war against secession for the sake of the Union and the integrity of the national domain, the conviction becomes irresistible that it was not democracy in the sense of either of the extremes that made the war and came out of it victorious; and hence the real American democracy must differ from them both, and is neither a personal nor a humanitarian, but a territorial democracy. The true idea of American democracy thus comes out, for the first time, freed from the two extreme democracies which have been identified with it, and henceforth enters into the understandings as well as the hearts of the people. The war has enlightened patriotism, and what was sentiment or instinct becomes reason--a well-defined, and clearly understood constitutional conviction. In the several States themselves there are many things to prevent the socialistic tendency from becoming exclusive. In the States that seceded socialism has never had a foothold, and will not gain it, for it is resisted by all the sentiments, convictions, and habits of the Southern people, and the Southern people will not be exterminated nor swamped by migrations either from the North or from Europe. They are and always will be an agricultural people, and an agricultural people are and always will be opposed to socialistic dreams, unless unwittingly held for a moment to favor it in pursuit of some special object in which they take a passionate interest. The worst of all policies is that of hanging, exiling, or disfranchising the wealthy landholders of the South, in order to bring up the poor and depressed whites, shadowed forth in the Executive proclamation of the 29th of May, 1865. Of course that policy will not be carried out, and if the negroes are enfranchised, they will always vote with the wealthy landholding class, and aid them in resisting all socialistic tendencies. The humanitarians will fail for the want of a good social grievance against which they can declaim. In the New England States the humanitarian tendency is strong as a speculation, but only in relation to objects at a distance. It is aided much by the congregational constitution of their religion; yet it is weak at home, and is resisted practically by the territorial division of power. New England means Massachusetts, and nowhere is the subdivision of the powers of government carried further, or the constitution of the territorial democracy more complete, than in that State. Philanthropy seldom works in private against private vices and evils: it is effective only against public grievances, and the farther they are from home and the less its right to interfere with them, the more in earnest and the more effective for evil does it become. Its nature is to mind every one's business but its own. But now that slavery is abolished, there is nowhere in the United States a social grievance of magnitude enough to enlist any considerable number of the people, even of Massachusetts, in a movement to redress it. Negro enfranchisement is a question of which the humanitarians can make something and they will make the most of it; but as it is a question that each State will soon settle for itself, it will not serve their purpose of prolonged agitation. They could not and never did carry away the nation, even on the question of slavery itself, and abolitionism had comparatively little direct influence in abolishing slavery; and the exclusion of negro suffrage can never be made to appear to the American people as any thing like so great a grievance as was slavery. Besides, in all the States that did not secede, Catholics are a numerous and an important portion of the population. Their increasing numbers, wealth, and education secure them, as much as the majority may dislike their religion, a constantly increasing influence, and it is idle to leave them out in counting the future of the country. They will, in a very few years, be the best and most thoroughly educated class of the American people; and, aside from their religion, or, rather, in consequence of their religion, the most learned, enlightened, and intelligent portion of the American population; and as much as they have disliked the abolitionists, they have, in the army and elsewhere, contributed their full share to the victory the nation has won. The best things written on the controversy have been written by Catholics, and Catholics are better fitted by their religion to comprehend the real character of the American constitution than any other class of Americans, the moment they study it in the light of their own theology. The American constitution is based on that of natural society, on the solidarity of the race, and the difference between natural society and the church or Christian society is, that the one is initial and the other teleological. The law of both is the same; Catholics, as such, must resist both extremes, because each is exclusive, and whatever is exclusive or one-sided is uncatholic. If they have been backward in their sympathy with the government, it has been through their dislike of the puritanic spirit and the humanitarian or socialistic elements they detected in the Republican party, joined with a prejudice against political and social negro equality. But their church everywhere opposes the socialistic movements of the age, all movements in behalf of barbarism, and they may always be counted on to resist the advance of the socialistic democracy. If the country has had reason to complain of some of them in the late war, it will have, in the future, far stronger reason to be grateful; not to them, indeed, for the citizen owes his life to his country, but to their religion, which has been and is the grand protectress of modern society and civilization. From the origin of the government there has been a tendency to the extension of suffrage, and to exclude both birth and private property as bases of political rights or franchises. This tendency has often been justified on the ground that the elective franchise is a natural right; which is not true, because the elective franchise is political power, and political power is always a civil trust, never a natural right, and the state judges for itself to whom it will or will not confide the trust; but there can be no doubt that it is a normal tendency, and in strict accordance with the constitution of American civil society, which rests on the unity of the race, and public instead of private property. All political distinctions founded on birth, race, or private wealth are anomalies in the American system, and are necessarily eliminated by its normal developments. To contend that none but property-holders may vote, or none but persons of a particular race may be enfranchised, is unamerican and contrary, to the order of civilization the New World is developing. The only qualification for the elective franchise the American system can logically insist on is that the elector belong to the territorial people--that is, be a natural-born or a naturalized citizen, be a major in full possession of his natural faculties, and unconvicted of any infamous offence. The State is free to naturalize foreigners or not, and under such restrictions as it judges proper; but, having naturalized them, it must treat them as standing on the same footing with natural-born citizens. The naturalization question is one of great national importance. The migration of foreigners hither has added largely to the national population, and to the national wealth and resources, but less, perhaps, to the development of patriotism, the purity of elections, or the wisdom and integrity of the government. It is impossible that there should be perfect harmony between the national territorial democracy and individuals born, brought up, and formed under a political order in many respects widely different from it; and there is no doubt that the democracy, in its objectionable sense, has been greatly strengthened by the large infusion of naturalized citizens. There can be no question that, if the laboring classes, in whom the national sentiment is usually the strongest, had been composed almost wholly of native Americans, instead of being, as they were, at least in the cities, large towns, and villages, composed almost exclusively of persons foreign born, the Government would have found far less difficulty in filling up the depleted ranks of its armies. But to leave so large a portion of the actual population as the foreign born residing in the country without the rights of citizens, would have been a far graver evil, and would, in the late struggle, have given the victory to secession. There are great national advantages derived from the migration hither of foreign labor, and if the migration be encouraged or permitted, naturalization on easy and liberal terms is the wisest, the best, and only safe policy. The children of foreign-born parents are real Americans. Emigration has, also, a singular effect in developing the latent powers of the emigrant, and the children of emigrants are usually more active, more energetic than the children of the older inhabitants of the country among whom they settle. Some of our first men in civil life have been sons of foreign-born parents, and so are not a few of our greatest and most successful generals. The most successful of our merchants have been foreign-born. The same thing has been noticed elsewhere, especially in the emigration of the French Huguenots to Holland, Germany, England, and Ireland. The immigration of so many millions from the Old World has, no doubt, given to the American people much of their bold, energetic, and adventurous character, and made them a superior people on the whole to what they would otherwise have been. This has nothing to do with superiority or inferiority of race or blood, but is a natural effect of breaking men away from routine, and throwing them back on their own individual energies and personal resources. Resistance is offered to negro suffrage, and justly too, till the recently emancipated slaves have served an apprenticeship to freedom; but that resistance cannot long stand before the onward progress of American democracy, which asserts equal rights for all, and not for a race or class only. Some would confine suffrage to landholders, or, at least, to property-holders; but that is inconsistent with the American idea, and is a relic of the barbaric constitution which founds power on private instead of public wealth. Nor are property-owners a whit more likely to vote for the public good than are those who own no property but their own labor. The men of wealth, the business men, manufacturers and merchants, bankers and brokers, are the men who exert the worst influence on government in every country, for they always strive to use it as an instrument of advancing their own private interests. They act on the beautiful maxim, "Let government take care of the rich, and the rich will take care of the poor," instead of the far safer maxim, "Let government take care of the weak, the strong can take care of themselves." Universal suffrage is better than restricted suffrage, but even universal suffrage is too weak to prevent private property from having an undue political influence. The evils attributed to universal suffrage are not inseparable from it, and, after all, it is doubtful if it elevates men of an inferior class to those elevated by restricted suffrage. The Congress of 1860, or of 1862. was a fair average of the wisdom, the talent, and the virtue of the country, and not inferior to that of 1776, or that of 1789; and the Executive during the rebellion was at least as able and as efficient as it was during the war of 1812, far superior to that of Great Britain, and not inferior to that of France during the Crimean war. The Crimean war developed and placed in high command, either with the English or the French, no generals equal to Halleck, Grant, and Sherman, to say nothing of others. The more aristocratic South proved itself, in both statesmanship and generalship, in no respect superior to the territorial democracy of the North and West. The great evil the country experiences is not from universal suffrage, but from what may be called rotation in office. The number of political aspirants is so great that, in the Northern and Western States especially, the representatives in Congress are changed every two or four years, and a member, as soon as he has acquired the experience necessary to qualify him for his position, is dropped, not through the fickleness of his constituency, but to give place to another whose aid had been necessary to his first or second election. Employes are "rotated," not because they are incapable or unfaithful, but because there are others who want their places. This is all bad, but it springs not from universal suffrage, but from a wrong public opinion, which might be corrected by the press, but which is mainly formed by it. There is, no doubt, a due share of official corruption, but not more than elsewhere, and that would be much diminished by increasing the salaries of the public servants, especially in the higher offices of the government, both General and State. The pay to the lower officers and employes of the government, and to the privates and non-commissioned officers in the army, is liberal, and, in general, too liberal; but the pay of the higher grades in both the civil and military service is too low, and relatively far lower than it was when the government was first organized. The worst tendency in the country, and which is not encouraged at all by the territorial democracy, manifests itself in hostility to the military spirit and a standing army. The depreciation of the military spirit comes from the humanitarian or sentimental democracy, which, like all sentimentalisms, defeats itself, and brings about the very evils it seeks to avoid. The hostility to standing armies is inherited from England, and originated in the quarrels between king and parliament, and is a striking evidence of the folly of that bundle of antagonistic forces called the British constitution. In feudal times most of the land was held by military service, and the reliance of government was on the feudal militia; but no real progress was made in eliminating barbarism till the national authority got a regular army at its command, and became able to defend itself against its enemies. It is very doubtful if English civilization has not, upon the whole, lost more than it has gained by substituting parliamentary for royal supremacy, and exchanging the Stuarts for the Guelfs. No nation is a living, prosperous nation that has lost the military spirit, or in which the profession of the soldier is not held in honor and esteem; and a standing army of reasonable size is public economy. It absorbs in its ranks a class of men who are worth more there than anywhere else; it creates honorable places for gentlemen or the sons of gentlemen without wealth, in which they can serve both themselves and their country. Under a democratic government the most serious embarrassment to the state is its gentlemen, or persons not disposed or not fitted to support themselves by their own hands, more necessary in a democratic government than in any other. The civil service, divinity, law, and medicine, together with literature, science, and art, cannot absorb the whole of this ever-increasing class, and the army and navy would be an economy and a real service to the state were they maintained only for the sake of the rank and position they give to their officers, and the wholesome influence these officers would exert on society and the politics of the country--this even in case there were no wars or apprehension of wars. They supply an element needed in all society, to sustain in it the chivalric and heroic spirit, perpetually endangered by the mercantile and political spirit, which has in it always something low and sordid. But wars are inevitable, and when a nation has no surrounding nations to fight, it will, as we have just proved, fight itself. When it can have no foreign war, it will get up a domestic war; for the human animal, like all animals, must work off in some way its fighting humor, and the only sure way of maintaining peace is always to be prepared for war. A regular standing army of forty thousand men would have prevented the Mexican war, and an army of fifty thousand well-disciplined and efficient troops at the command of the President on his inauguration in March, 1861, would have prevented the rebellion, or have instantly suppressed it. The cost of maintaining a land army of even a hundred thousand men, and a naval force to correspond, would have been, in simple money value, only a tithe of what the rebellion has cost the nation, to say nothing of the valuable lives that have been sacrificed for the losses on the rebel side, as well as those on the side of the government, are equally to be counted. The actual losses to the country have been not less than six or eight thousand millions of dollars, or nearly one-half the assessed value of the whole property of the United States according to the census returns of 1860, and which has only been partially cancelled by actual increase of property since. To meet the interest on the debt incurred will require a heavier sum to be raised annually by taxation, twice over, without discharging a cent of the principal, than would have been necessary to maintain an army and navy adequate to the protection of peace and the prevention of the rebellion. The rebellion is now suppressed, and if the government does not blunder much more in its civil efforts at pacification than it did in its military operations, before 1868 things will settle down into their normal order; but a regular army--not militia or volunteers, who are too expensive--of at least a hundred thousand men of all arms, and a navy nearly as large as that of England or France, will be needed as a peace establishment. The army of a hundred thousand men must form a cadre of an army of three times that number, which will be necessary to place the army on a war footing. Less will answer neither for peace nor war, for the nation has, in spite of herself, to maintain henceforth the rank of a first-class military and maritime power, and take a leading part in political movements of the civilized world, and, to a great extent, hold in her hand the peace of Europe. Canning boasted that he had raised up the New World to redress the balance of the Old: a vain boast, for he simply weakened Spain and gave the hegemony of Europe to Russia, which the Emperor of the French is trying, by strengthening Italy and Spain, and by a French protectorate in Mexico, to secure to France, both in the Old World and the New--a magnificent dream, but not to be realized. His uncle judged more wisely when he sold Louisiana, left the New World to itself, and sought only to secure to France the hegemony of the Old. But the hegemony of the New World henceforth belongs to the United States, and she will have a potent voice in adjusting the balance of power even in Europe. To maintain this position, which is imperative on her, she must always have a large armed force, either on foot or in reserve, which she can call out and put on a war footing at short notice. The United States must henceforth be a great military and naval power, and the old hostility to a standing army and the old attempt to bring the military into disrepute must be abandoned, and the country yield to its destiny. Of the several tendencies mentioned, the humanitarian tendency, egoistical at the South, detaching the individual from the race and socialistic at the North, absorbing the individual in the race, is the most dangerous. The egoistical form is checked, sufficiently weakened by the defeat of the rebels; but the social form believes that it has triumphed, and that individuals are effaced in society, and the States in the Union. Against this, more especially should public opinion and American statesmanship be now directed, and territorial democracy and the division of the powers of government be asserted and vigorously maintained. The danger is that while this socialistic form of democracy is conscious of itself, the territorial democracy has not yet arrived, as the Germans say, at self consciousness--_selbsbewusstseyn_--and operates only instinctively. All the dominant theories and sentimentalities are against it, and it is only Providence that can sustain it. CHAPTER XV. DESTINY--POLITICAL AND RELIGIOUS. It has been said in the Introduction to this essay that every living nation receives from Providence a special work or mission in the progress of society, to accomplish which is its destiny, or the end for which it exists; and that the special mission of the United States is to continue and complete in the political order the Graeco-Roman civilization. Of all the states or colonies on this continent, the American Republic alone has a destiny, or the ability to add any thing to the civilization of the race. Canada and the other British Provinces, Mexico and Central America, Columbia and Brazil, and the rest of the South American States, might be absorbed in the United States without being missed by the civilized world. They represent no idea, and the work of civilization could go on without them as well as with them. If they keep up with the progress of civilization, it is all that can be expected of them. France, England, Germany, and Italy might absorb the rest of Europe, and all Asia and Africa, without withdrawing a single laborer from the work of advancing the civilization of the race; and it is doubtful if these nations themselves can severally or jointly advance it much beyond the point reached by the Roman Empire, except in abolishing slavery and including in the political people the whole territorial people. They can only develop and give a general application to the fundamental principles of the Roman constitution. That indeed is much, but it adds no new element nor new combination of preexisting elements. But nothing of this can be said of the United States. In the Graeco-Roman civilization is found the state proper, and the great principle of the territorial constitution of power, instead of the personal or the genealogical, the patriarchal or the monarchical; and yet with true civil or political principles it mixed up nearly all the elements of the barbaric constitution. The gentile system of Rome recalls the patriarchal, and the relation that subsisted between the patron and his clients has a striking resemblance to that which subsists between the feudal lord and his retainers, and may have had the same origin. The three tribes, Ramnes, Quirites, and Luceres, into which the Roman people were divided before the rise of the plebs, may have been, as Niebuhr contends, local, not genealogical, in their origin, but they were not strictly territorial distinctions, and the division of each tribe into a hundred houses or gentes was not local, but personal, if not, as the name implies, genealogical. No doubt the individuals or families composing the house or gens were not all of kindred blood, for the Oriental custom of adoption, so frequent with our North American Indians, and with all people distributed into tribes, septs, or clans, obtained with the Romans. The adopted member was considered a child of the house, and took its name and inherited its goods. Whether, as Niebuhr maintains, all the free gentiles of the three tribes were called patres or patricians or whether the term was restricted to the heads of houses, it is certain that the head of the house represented it in the senate, and the vote in the curies was by houses, not by individuals en masse. After all, practically the Roman senate was hardly less an estate than the English house of lords, for no one could sit in it unless a landed proprietor and of noble blood. The plebs, though outside of the political people proper, as not being included in the three tribes, when they came to be a power in the republic under the emperors, and the old distinction of plebs and patricians was forgotten, were an estate, and not a local or territorial people. The republican element was in the fact that the land, which gave the right to participate in political power, was the domain of the state, and the tenant held it from the state. The domain was vested in the state, not in the senator nor the prince, and was therefore respublica, not private property--the first grand leap of the human race from barbarism. In all other respects the Roman constitution was no more republican than the feudal. Athens went farther than Rome, and introduced the principle of territorial democracy. The division into demes or wards, whence comes the word democracy, was a real territorial division, not personal nor genealogical. And if the equality of all men was not recognized, all who were included in the political class stood on the same footing. Athens and other Greek cities, though conquered by Rome, exerted after their conquest a powerful influence on Roman civilization, which became far more democratic under the emperors than it had been under the patrician senate, which the assassins of Julius Caesar, and the superannuated conservative party they represented, tried so hard to preserve. The senate and the consulship were opened to the representatives of the great plebeian houses, and the provincials were clothed with the rights of Roman citizens, and uniform laws were established throughout the empire. The grand error, as has already been said, of the Graeco-Roman or gentile civilization, was in its denial or ignorance of the unity of the human race, as well as the Unity of God, and in its including in the state only a particular class of the territorial people, while it held all the rest as slaves, though in different degrees of servitude. It recognized and sustained a privileged class, a ruling order; and if, as subsequently did the Venetian aristocracy, it recognized democratic equality within that order, it held all outside of it to be less than men and without political rights. Practically, power was an attribute of birth and of private wealth. Suffrage was almost universal among freemen, but down almost to the Empire, the people voted by orders, and were counted, not numerically, but by the rank of the order, and the comitia curiata could always carry the election over the comitia centuriata, and thus power remained always in the hands of the rich and noble few. The Roman Law, as digested by jurists under Justinian in the sixth Century, indeed, recognizes the unity of the race, asserts the equality of all men by the natural law, and undertakes to defend slavery on principles not incompatible with that equality. It represents it as a commutation of the punishment of death, which the emperor has the right to inflict on captives taken in war, to perpetual servitude; and as servitude is less severe than death, slavery was really a proof of imperial clemency. But it has never yet been proved that the emperor has the right under the natural law to put captives taken even in a just war to death, and the Roman poet himself bids us "humble the proud, but spare the submissive." In a just war the emperor may kill on the battle-field those in arms against him, but the jus gentium, as now interpreted by the jurisprudence of every civilized nation, does not allow him to put them to death after they have ceased resistance, have thrown down their arms, and surrendered. But even if it did, it gives him a right only over the persons captured, not over their innocent children, and therefore no right to establish hereditary slavery, for the child is not punishable for the offences of the parent. The law, indeed, assumed that the captive ceased to exist as a person and treated him as a thing, or mere property of the conqueror, and being property, he could beget only property, which would accrue only to his owner. But there is no power in heaven or earth that can make a person a thing, a mere piece of merchandise, and it is only by a clumsy fiction, or rather by a bare-faced lie, that the law denies the slave his personality and treats him as a thing. I the unity of all men had been clearly seen and vividly felt, the law would never have attempted to justify perpetual slavery on the ground of its penal character, or indeed on any ground whatever. All men are born under the law of nature with equal rights, and the civil law can justly deprive no man of his liberty, but for a crime, committed by him personally, that justly forfeits his liberty to society. These defects of the Graeco-Roman civilization the European nations have in part remedied, and may completely remedy. They can carry out practically the Christian dogma of the unity of the human race, abolish slavery in every form, make all men equal before the law, and the political people commensurate with the territorial people. Indeed, France has already done it. She has abolished slavery, villenage, serfage, political aristocracy, asserted the equality of all men before the law, vindicated the sovereignty of the people, and established universal suffrage, complete social and territorial democracy. The other nations may do as much, but hardly can any of them do more or advance farther. Yet in France, territorial democracy the most complete results only in establishing the most complete imperial centralism, usually called Caesarism. The imperial constitution of France recognizes that the emperor reigns "by the grace of God and the will of the nation," and therefore, that by the grace of God and the will of the nation he may cease to reign; but while he reigns he is supreme, and his will is law. The constitution imposes no real or effective restraint on his power: while he sits upon the throne he is practically France, and the ministers are his clerks; the council of state, the senate, and the legislative body are merely his agents in governing the nation. This may, indeed, be changed, but only to substitute for imperial centralism democratic centralism, which were no improvement, or to go back to the system of antagonisms, checks and balances, called constitutionalism, or parliamentary government, of which Great Britain is the model, and which were a return toward barbarism, or mediaeval feudalism. The human race has its life in God, and tends to realize in all orders the Divine Word or Logos, which is Ionic itself, and the principle of all conciliation, of the dialectic union of all opposites or extremes. Mankind will be logical; and the worst of all tyrannies is that which forbids them to draw from their principles their last logical consequences, or that prohibits them the free explication and application of the Divine Idea, in which consists their life, their progress. Such tyranny strikes at the very existence of society, and wars against the reality of things. It is supremely sophistical, and its success is death; for the universe in its constitution is supremely logical, and man, individually and socially, is rational. God is the author and type of all created things; and all creatures, each in its order, imitate or copies the Divine Being, who is intrinsically Father, Son, and Holy Ghost, principle, medium, and end. The Son or Word is the medium, which unites the two extremes, whence God is living God a real, active, living Being--living, concrete, not abstract or dead unity, like the unity of old Xenophanes, Plotinus, and Proclus. In the Holy Trinity is the principle and prototype of all society, and what is called the solidarity of the race is only the outward expression, or copy in the external order, of what theologians term the circumsession of the three Divine Persons of the Godhead. Now, human society, when it copies the Divine essence and nature either in the distinction of persons alone, or in the unity alone, is sophistical, and wants the principle of all life and reality. It sins against God, and must fail of its end. The English system, which is based on antagonistic elements, on opposites, without the middle term that conciliates them, unites them, and makes them dialectically one, copies the Divine model in its distinctions alone, which, considered alone, are opposites or contraries. It denies, if Englishmen could but see it, the unity of God. The French, or imperial system, which excludes the extremes, instead of uniting them, denies all opposites, instead of conciliating them--denies the distinctions in the model, and copies only the unity, which is the supreme sophism called pantheism. The English constitution has no middle term, and the French no extremes, and each in its way denies the Divine Trinity, the original basis and type of the syllogism. The human race can be contented with neither, for neither allows it free scope for its inherent life and activity. The English system tends to pure individualism; the French to pure socialism or despotism, each endeavoring to suppress an element of the one living and indissoluble TRUTH. This is not fancy, is not fine-spun speculation, or cold and lifeless abstraction, but the highest theological and philosophical truth, without which there were no reason, no man, no society; for God is the first principle of all being, all existence, all science, all life, and it is in Him that we live and move and have our being. God is at the beginning, in the middle, and at the end of all things--the universal principle, medium, and end; and no truth can be denied without His existence being directly or indirectly impugned. In a deeper sense than is commonly understood is it true that nisi Dominus aedificaverit domum, in vanum laboraverunt qui aedificant eam. The English constitution is composed of contradictory elements, incapable of reconciliation, and each element is perpetually struggling with the others for the mastery. For a long time the king labored, intrigued, and fought to free himself from the thraldom in which he was held by the feudal barons; in 1688 the aristocracy and people united and humbled the crown; and now the people are at work seeking to sap both the crown and the nobles. The state is constituted to nobody's satisfaction; and though all may unite in boasting its excellences, all are at work trying to alter or amend it. The work of constituting the state with the English is ever beginning, never ending. Hence the eternal clamor for parliamentary reform. Great Britain and other European states may sweep away all that remains of feudalism, include the whole territorial people with the equal rights of all in the state or political people, concede to birth and wealth no political rights, but they will by so doing only establish either imperial centralism, as has been done in France, or democratic centralism, clamored for, conspired for, and fought for by the revolutionists of Europe. The special merit of the American system is not in its democracy alone, as too many at home and abroad imagine; but along with its democracy in the division of the powers of government, between a General government and particular State governments, which are not antagonistic governments, for they act on different matters, and neither is nor can be subordinated to the other. Now, this division of power, which decentralizes the government without creating mutually hostile forces, can hardly be introduced into any European state. There may be a union of states in Great Britain, in Germany, in Italy, perhaps in Spain, and Austria is laboring hard to effect it in her heterogeneous empire; but the union possible in any of them is that of a Bund or confederation, like the Swiss or German Bund, similar to what the secessionists in the United States so recently attempted and have so signally failed to establish. An intelligent Confederate officer remarked that their Confederacy had not been in operation three months before it became evident that the principle on which it was founded, if not rejected, would insure its defeat. It was that principle of State sovereignty, for which the States seceded, more than the superior resources and numbers of the Government, that caused the collapse of the Confederacy. The numbers were relatively about equal, and the military resources of the Confederacy were relatively not much inferior to those of the Government. So at least the Confederate leaders thought, and they knew the material resources of the Government as well as their own, and had calculated them with as much care and accuracy as any men could. Foreign powers also, friendly as well as unfriendly, felt certain that the secessionists would gain their independence, and so did a large part of the people even of the loyal States. The failure is due to the disintegrating principle of State sovereignty, the very principle of the Confederacy. The war has proved that united states are, other things being equal, an overmatch for confederated states. The European states must unite either as equals or as unequals. As equals, the union can be only a confederacy, a sort of Zollverein, in which each state retains its individual sovereignty; if as unequals, then someone among them will aspire to the hegemony, and you have over again the Athenian Confederation, formed at the conclusion of the Persian war, and its fate. A union like the American cannot be created by a compact, or by the exercise of supreme power. The Emperor of the French cannot erect the several Departments of France into states, and divide the powers of government between them as individual and as united states. They would necessarily hold from the imperial government, which, though it might exercise a large part of its functions through them, would remain, as now, the supreme central government, from which all governmental powers emanate, as our President is apparently attempting, in his reconstruction policy, to make the government of the United States. The elements of a state constituted like the American do not exist in any European nation, nor in the constitution of European society; and the American constitution would have been impracticable even here had not Providence so ordered it that the nation was born with it, and has never known any other. Rome recognized the necessity of the federal principle, and applied it in the best way she could. At first it was a single tribe or people distributed into distinct gentes or houses; after the Sabine war, a second tribe was added on terms of equality, and the state was dual, composed of two tribes, the Ramnes and the Tities or Quirites, and, afterward, in the time of Tullus Hostilius, were added the Lucertes or Luceres, making the division into three ruling tribes, each divided into one hundred houses or gentes. Each house in each tribe was represented by its chief or decurion in the senate, making the number of senators exactly three hundred, at which number the senate was fixed. Subsequently was added, by Ancus, the plebs, who remained without authority or share in the government of the city of Rome itself, though they might aspire to the first rank in the allied cities. The division into tribes, and the division of the tribes into gentes or houses, and the vote in the state by tribes, and in the tribes by houses, effectually excluded democratic centralism; but the division was not a division of the powers of government between two co-ordinate governments, for the senate had supreme control, like the British parliament, over all matters, general and particular. The establishment, after the secession of the plebs, of the tribunitial veto, which gave the plebeians a negative power in the state, there was an incipient division of the powers of government; but only a division between the positive and negative powers, not between the general and the particular. The power accorded to the plebs, or commons, as Niebuhr calls them--who is, perhaps, too fond of explaining the early constitution of Rome by analogies borrowed from feudalism, and especially from the constitution of his native Ditmarsch--was simply an obstructive power; and when it, by development, became a positive power, it absorbed all the powers of government, and created the Empire. There was, indeed, a nearer approach to the division of powers in the American system, between imperial Rome and her allied or confederated municipalities. These municipalities, modelled chiefly after that of Rome, were elective, and had the management of their own local affairs; but their local powers were not co-ordinate in their own sphere with those exercised by the Roman municipality, but subordinate and dependent. The senate had the supreme power over them, and they held their rights subject to its will. They were formally, or virtually, subjugated states, to which the Roman senate, and afterward the Roman emperors, left the form of the state and the mere shadow of freedom. Rome owed much to her affecting to treat them as allies rather than as subjects, and at first these municipal organizations secured the progress of civilization in the provinces; but at a later period, under the emperors, they served only the imperial treasury, and were crushed by the taxes imposed and the contributions levied on them by the fiscal agents of the empire. So heavy were the fiscal burdens imposed on the burgesses, if the term may be used, that it needed an imperial edict to compel them to enter the municipal government; and it became, under the later emperors, no uncommon thing for free citizens to sell themselves into slavery, to escape the fiscal burdens imposed. There are actually imperial edicts extant forbidden freemen to sell themselves as slaves. Thus ended the Roman federative system, and it is difficult to discover in Europe the elements of a federative system that could have a more favorable result. Now, the political destiny or mission of the United States is, in common with the European nations, to eliminate the barbaric elements retained by the Roman constitution, and specially to realize that philosophical division of the powers of government which distinguish it from both imperial and democratic centralism on the one hand, and, on the other, from the checks and balances or organized antagonisms which seek to preserve liberty by obstructing the exercise of power. No greater problem in statesmanship remains to be solved, and no greater contribution to civilization to be made. Nowhere else than in this New World, and in this New World only in the United States, can this problem be solved, or this contribution be made, and what the Graeco-Roman republic began be completed. But the United States have a religious as well as a political destiny, for religion and politics go together. Church and state, as governments, are separate indeed, but the principles on which the state is founded have their origin and ground in the spiritual order--in the principles revealed or affirmed by religion--and are inseparable from them. There is no state without God, any more than there is a church without Christ or the Incarnation. An atheist may be a politician, but if there were no God there could be no politics, theological principles are the basis of political principles. The created universe is a dialectic whole, distinct but inseparable from its Creator, and all its parts cohere and are essential to one another. All has its origin and prototype in the Triune God, and throughout expresses unity in triplicity and triplicity in unity, without which there is no real being and no actual or possible life. Every thing has its principle, medium, and end. Natural society is initial, civil government is medial, the church is teleological, but the three are only distinctions in one indissoluble whole. Man, as we have seen, lives by communion with God through the Divine creative act, and is perfected or completed only through the Incarnation, in Christ, the Word made flesh. True, he communes with God through his kind, and through external nature, society in which he is born and reared, and property through which he derives sustenance for his body; but these are only media of his communion with God, the source of life--not either the beginning or the end of his communion. They have no life in themselves, since their being is in God, and, of themselves, can impart none. They are in the order of second causes, and second causes, without the first cause, are nought. Communion which stops with them, which takes them as the principle and end, instead of media, as they are, is the communion of death, not of life. As religion includes all that relates to communion with God, it must in some form be inseparable from every living act of man, both individually and socially; and, in the long run, men must conform either their politics to their religion or their religion to their politics. Christianity is constantly at work, moulding political society in its own image and likeness, and every political system struggles to harmonize Christianity with itself. If, then, the United States have a political destiny, they have a religious destiny inseparable from it. The political destiny of the United States is to conform the state to the order of reality, or, so to speak, to the Divine Idea in creation. Their religious destiny is to render practicable and to realize the normal relations between church and state, religion and politics, as concreted in the life of the nation. In politics, the United States are not realizing a political theory of any sort whatever. They, on the contrary, are successfully refuting all political theories, making away with them, and establishing the state--not on a theory, not on an artificial basis or a foundation laid by human reason or will, but on reality, the eternal and immutable principles in relation to which man is created. They are doing the same in regard to religious theories. Religion is not a theory, a subjective view, an opinion, but is, objectively, at once a principle, a law, and a fact, and, subjectively, it is, by the aid of God's grace, practical conformity to what is universally true and real. The United States, in fulfilment of their destiny, are making as sad havoc with religious theories as with political theories, and are pressing on with irresistible force to the real or the Divine order which is expressed in the Christian mysteries, which exists independent of man's understanding and will, and which man can neither make nor unmake. The religious destiny of the United States is not to create a new religion nor to found a new church. All real religion is catholic, and is neither new nor old, but is always and everywhere true. Even our Lord came neither to found a new church nor to create a new religion, but to do the things which had been foretold, and to fulfil in time what had been determined in eternity. God has himself founded the church on catholic principles, or principles always and everywhere real principles. His church is necessarily catholic, because founded on catholic dogmas, and the dogmas are catholic, because they are universal and immutable principles, having their origin and ground in the Divine Being Himself, or in the creative act by which He produces and sustains all things. Founded on universal and immutable principles, the church can never grow old or obsolete, but is the church for all times and Places, for all ranks and conditions of men. Man cannot change either the church or the dogmas of faith, for they are founded in the highest reality, which is above him, over him, and independent of him. Religion is above and independent of the state, and the state has nothing to do with the church or her dogmas, but to accept and conform to them as it does to any of the facts or principles of science, to a mathematical truth, or to a physical law. But while the church, with her essential constitution, and her dogmas are founded in the Divine order, and are catholic and unalterable, the relations between the civil and ecclesiastical authorities may be changed or modified by the changes of time and place. These relations have not been always the same, but have differed in different ages and countries. During the first three centuries of our era the church had no legal status, and was either connived at or persecuted by the state. Under the Christian emperors she was recognized by the civil law; her prelates had exclusive jurisdiction in mixed civil and ecclesiastical questions, and were made, in some sense, civil magistrates, and paid as such by the empire. Under feudalism, the prelates received investiture as princes and barons, and formed alone, or in connection with the temporal lords, an estate in the kingdom. The Pope became a temporal prince and suzerain, at one time, of a large part of Europe, and exercised the arbitratorship in all grave questions between Christian sovereigns themselves, and between them and their subjects. Since the downfall of feudalism and the establishment of modern centralized monarchy, the church has been robbed of the greater part of her temporal possessions, and deprived, in most countries, of all civil functions, and treated by the state either as an enemy or as a slave. In all the sectarian and schismatic states of the Old World, the national church is held in strict subjection to the civil authority, as in Great Britain and Russia, and is the slave of the state; in the other states of Europe, as France, Austria, Spain, and Italy, she is treated with distrust by the civil government, and allowed hardly a shadow of freedom and independence. In France, which has the proud title of eldest daughter of the church, Catholics, as such, are not freer than they are in Turkey. All religious are said to be free, and all are free, except the religion of the majority of Frenchmen. The emperor, because nominally a Catholic, takes it upon himself to concede the church just as much and just as little freedom in the empire as he judges expedient for his own secular interests. In Italy, Spain, Portugal, Mexico, and the Central and South American states, the policy of the civil authorities is the same, or worse. It may be safely asserted that, except in the United States, the church is either held by the civil power in subjection, or treated as an enemy. The relation is not that of union and harmony, but that of antagonism, to the grave detriment of both religion and civilization. It is impossible, even if it were desirable, to restore the mixture of civil and ecclesiastical governments which obtained in the Middle Ages; and a total separation of church and state, even as corporations, would, in the present state of men's minds in Europe, be construed, if approved by the church, into a sanction by her of political atheism, or the right of the civil power to govern according to its own will and pleasure in utter disregard of the law of God, the moral order, or the immutable distinctions between right and wrong. It could only favor the absolutism of the state, and put the temporal in the place of the spiritual. Hence, the Holy Father includes the proposition of the entire separation of church and state in the Syllabus of Errors condemned in his Encyclical, dated at Rome, December 8, 1864. Neither the state nor the people, elsewhere than in the United States, can understand practically such separation in any other sense than the complete emancipation of our entire secular life from the law of God, or the Divine order, which is the real order. It is not the union of church and state--that is, the union, or identity rather, of religious and political principles--that it is desirable to get rid of, but the disunion or antagonism of church and state. But this is nowhere possible out of the United States; for nowhere else is the state organized on catholic principles, or capable of acting, when acting from its own constitution, in harmony with a really catholic church, or the religious order really existing, in relation to which all things are created and governed. Nowhere else is it practicable, at present, to maintain between the two powers their normal relations. But what is not practicable in the Old World is perfectly practicable in the New. The state here being organized in accordance with catholic principles, there can be no antagonism between it and the church. Though operating in different spheres, both are, in their respective spheres, developing and applying to practical life the one and the same Divine Idea. The church can trust the state, and the state can trust the church. Both act from the same principle to one and the same end. Each by its own constitution co-operates with, aids, and completes the other. It is true the church is not formally established as the civil law of the land, nor is it necessary that she should be; because there is nothing in the state that conflicts with her freedom and independence, with her dogmas or her irreformable canons. The need of establishing the church by law, and protecting her by legal pains and penalties, as is still done in most countries, can exist only in a barbarous or semi-barbarous state of society, where the state is not organized on catholic principles, or the civilization is based on false principles, and in its development tends not to the real or Divine order of things. When the state is constituted in harmony with that order, it is carried onward by the force of its own internal constitution in a catholic direction, and a church establishment, or what is called a state religion, would be an anomaly, or a superfluity. The true religion is in the heart of the state, as its informing principle and real interior life. The external establishment, by legal enactment of the church, would afford her no additional protection, add nothing to her power and efficacy, and effect nothing for faith or piety--neither of which can be forced, because both must, from their nature, be free-will offerings to God. In the United States, false religions are legally as free as the true religion; but all false religions being one-sided, sophistical, and uncatholic, are opposed by the principles of the state, which tend, by their silent but effective workings, to eliminate them. The American state recognizes only the catholic religion. It eschews all sectarianism, and none of the sects have been able to get their peculiarities incorporated into its constitution or its laws. The state conforms to what each holds that is catholic, that is always and everywhere religion; and what ever is not catholic it leaves, as outside of its province, to live or die, according to its own inherent vitality or want of vitality. The state conscience is catholic, not sectarian; hence it is that the utmost freedom can be allowed to all religions, the false as well as the true; for the state, being catholic in its constitution, can never suffer the adherents of the false to oppress the consciences of the adherents of the true. The church being free, and the state harmonizing with her, catholicity has, in the freedom of both, all the protection it needs, all the security it can ask, and all the support it can, in the nature of the case receive from external institutions, or from social and political organizations. This freedom may not be universally wise or prudent, for all nations may not be prepared for it: all may not have attained their majority. The church, as well as the state, must deal with men and nations as they are, not as they are not. To deal with a child as with an adult, or with a barbarous nation as with a civilized nation, would be only acting a lie. The church cannot treat men as free men where they are not free men, nor appeal to reason in those in whom reason is undeveloped. She must adapt her discipline to the age, condition, and culture of individuals, and to the greater or less progress of nations in civilization. She herself remains always the same in her constitution, her authority, and her faith; but varies her discipline with the variations of time and place. Many of her canons, very proper and necessary in one age, cease to be so in another, and many which are needed in the Old World would be out of place in the New World. Under the American system, she can deal with the people as free men, and trust them as freemen, because free men they are. The freeman asks, why? and the reason why must be given him, or his obedience fails to be secured. The simple reason that the church commands will rarely satisfy him; he would know why she commands this or that. The full-grown free man revolts at blind obedience, and he regards all obedience as in some measure blind for which he sees only an extrinsic command. Blind obedience even to the authority of the church cannot be expected of the people reared under the American system, not because they are filled with the spirit of disobedience, but because they insist that obedience shall be rationabile obsequium, an act of the understanding, not of the will or the affections alone. They are trained to demand a reason for the command given them, to distinguish between the law and the person of the magistrate. They can obey God, but not man, and they must see that the command given has its reason in the Divine order, or the intrinsic catholic reason of things, or they will not yield it a full, entire, and hearty obedience. The reason that suffices for the child does not suffice for the adult, and the reason that suffices for barbarians does not suffice for civilized men, or that suffices for nations in the infancy of their civilization does not suffice for them in its maturity. The appeal to external authority was much less frequent under the Roman Empire than in the barbarous ages that followed its downfall, when the church became mixed up with the state. This trait of the American character is not uncatholic. An intelligent, free, willing obedience, yielded from personal conviction, after seeing its reasonableness, its justice, its logic in the Divine order--the obedience of a free man, not of a slave--is far more consonant to the spirit of the church, and far more acceptable to God, than simple, blind obedience; and a people capable of yielding it stand far higher in the scale of civilization than the people that must be governed as children or barbarians. It is possible that the people of the Old World are not prepared for the regimen of freedom in religion any more than they are prepared for freedom in politics; for they have been trained only to obey external authority, and are not accustomed to look on religion as having its reason in the real order, or in the reason of things. They understand no reason for obedience beyond the external command, and do not believe it possible to give or to understand the reason why the command itself is given. They regard the authority of the church as a thing apart, and see no way by which faith and reason can be harmonized. They look upon them as antagonistic forces rather than as integral elements of one and the same whole. Concede them the regimen of freedom, and their religion has no support but in their good-will, their affections, their associations, their habits, and their prejudices. It has no root in their rational convictions, and when they begin to reason they begin to doubt. This is not the state of things that is desirable, but it cannot be remedied under the political regime established elsewhere than in the United States. In every state in the world, except the American, the civil constitution is sophistical, and violates, more or less, the logic of things; and, therefore, in no one of them can the people receive a thoroughly dialectic training, or an education in strict conformity to the real order. Hence, in them all, the church is more or less obstructed in her operations, and prevented from carrying out in its fulness her own Divine Idea. She does the best she can in the circumstances and with the materials with which she is supplied, and exerts herself continually to bring individuals and nations into harmony with her Divine law: but still her life in the midst of the nations is a struggle, a warfare. The United States being dialectically constituted, and founded on real catholic, not sectarian or sophistical principles, presents none of these obstacles, and must, in their progressive development or realization of their political idea, put an end to this warfare, in so far as a warfare between church and state, and leave the church in her normal position in society, in which she can, without let or hindrance, exert her free spirit, and teach and govern men by the Divine law as free men. She may encounter unbelief, misbelief, ignorance, and indifference in few, or in many; but these, deriving no support from the state, which tends constantly to eliminate them, must gradually give way before her invincible logic, her divine charity, the truth and reality of things, and the intelligence, activity, and zeal of her ministers. The American people are, on the surface, sectarians or indifferentists; but they are, in reality, less uncatholic than the people of any other country because they are, in their intellectual and moral development, nearer to the real order, or, in the higher and broader sense of the word more truly civilized. The multitude of sects that obtain may excite religious compassion for those who are carried away by them, for men can be saved or attain to their eternal destiny only by truth, or conformity to Him who said, "I am the way, the truth, and the life;" but in relation to the national destiny they need excite no alarm, no uneasiness, for underlying them all is more or less of catholic truth, and the vital forces of the national life repel them, in so far as they are sectarian and not catholic, as substances that cannot be assimilated to the national life. The American state being catholic in its organic principles, as is all real religion, and the church being free, whatever is anticatholic, or uncatholic, is without any support in either, and having none, either in reality or in itself, it must necessarily fall and gradually disappear. The sects themselves have a half unavowed conviction that they cannot subsist forever as sects, if unsupported by the civil authority. They are free, but do not feel safe in the United States. They know the real church is catholic, and that they themselves are none of them catholic. The most daring among them even pretends to be no more than a "branch" of the catholic church. They know that only the catholic church can withstand the pressure of events and survive the shocks of time, and hence everywhere their movements to get rid of their sectarianism and to gain a catholic character. They hold conventions of delegates from the whole sectarian world, form "unions," "alliances," and "associations;" but, unhappily for their success, the catholic church does not originate in convention, but is founded by the Word made flesh, and sustained by the indwelling Holy Ghost. The most they can do, even with the best dispositions in the world, is to create a confederation, and confederated sects are something very different from a church inherently one and catholic. It is no more the catholic church than the late Southern Confederacy was the American state. The sectarian combinations may do some harm, may injure many souls, and retard, for a time, the progress of civilization; but in a state organized in accordance with catholic principles, and left to themselves, they are powerless against the national destiny, and must soon wither and die as branches severed from the vine. Such being the case, no sensible Catholic can imagine that the church needs any physical force against the sects, except to repel actual violence, and protect her in that freedom of speech and possession which is the right of all before the state. What are called religious establishments are needed only where either the state is barbarous or the religion is sectarian. Where the state, in its intrinsic constitution, is in accordance with catholic principles, as in the United States, the church has all she needs or can receive. The state can add nothing more to her power or her security in her moral and spiritual warfare with sectarianism, and any attempt to give her more would only weaken her as against the sects, place her in a false light, partially justify their hostility to her, render effective their declamations against her, mix her up unnecessarily with political changes, interests, and passions, and distract the attention of her ministers from their proper work as churchmen, and impose on them the duties of politicians and statesmen. Where there is nothing in the state hostile to the church, where she is free to act according to her own constitution and laws, and exercise her own discipline on her own spiritual subjects, civil enactments in her favor or against the sects may embarrass or impede her operations, but cannot aid her, for she can advance no farther than she wins the heart and convinces the understanding. A spiritual work can, in the nature of things, be effected only by spiritual means. The church wants freedom in relation to the state--nothing more; for all her power comes immediately from God, without any intervention or mediation of the state. The United States, constituted in accordance with the real order of things, and founded on principles which have their origin and ground in the principles on which the church herself is founded, can never establish any one of the sects as the religion of the state, for that would violate their political constitution, and array all the other sects, as well as the church herself, against the government. They cannot be called upon to establish the church by law, because she is already in their constitution as far as the state has in itself any relation with religion, and because to establish her in any other sense would be to make her one of the civil institutions of the land, and to bring her under the control of the state, which were equally against her interest and her nature. The religious mission of the United States is not then to establish the church by external law, or to protect her by legal disabilities, pains, and penalties against the sects, however uncatholic they may be; but to maintain catholic freedom, neither absorbing the state in the church nor the church in the state, but leaving each to move freely, according to its own nature, in the sphere assigned it in the eternal order of things. Their mission separates church and state as external governing bodies, but unites them in the interior principles from which each derives its vitality and force. Their union is in the intrinsic unity of principle, and in the fact that, though moving in different spheres, each obeys one and the same Divine law. With this the Catholic, who knows what Catholicity means, is of course satisfied, for it gives the church all the advantage over the sects of the real over the unreal; and with this the sects have no right to be dissatisfied, for it subjects them to no disadvantage not inherent in sectarianism itself in presence of Catholicity, and without any support from the civil authority. The effect of this mission of our country fully realized, would be to harmonize church and state, religion and politics, not by absorbing either in the other, or by obliterating the natural distinction between them, but by conforming both to the real or Divine order, which is supreme and immutable. It places the two powers in their normal relation, which has hitherto never been done, because hitherto there never has been a state normally constituted. The nearest approach made to the realization of the proper relations of church and state, prior to the birth of the American Republic, was in the Roman Empire under the Christian emperors; but the state had been perverted by paganism, and the emperors, inheriting the old pontifical power, could never be made to understand their own incompetency in spirituals, and persisted to the last in treating the church as a civil institution under their supervision and control, as does the Emperor of the French in France, even yet. In the Middle Ages the state was so barbarously constituted that the church was obliged to supervise its administration, to mix herself up with the civil government, in order to infuse some intelligence into civil matters, and to preserve her own rightful freedom and independence. When the states broke away from feudalism, they revived the Roman constitution, and claimed the authority in ecclesiastical matters that had been exercised by the Roman Caesars, and the states that adopted a sectarian religion gave the sect adopted a civil establishment, and subjected it to the civil government, to which the sect not unwillingly consented, on condition that the civil authority excluded the church and all other sects, and made it the exclusive religion of the state, as in England, Scotland, Sweden, Denmark, Russia, and the states of Northern Germany. Even yet the normal relations of church and state are nowhere practicable in the Old World; for everywhere either the state is more or less barbaric in its constitution, or the religion is sectarian, and the church as well as civilization is obliged, to struggle with antagonistic forces, for self-preservation. There are formidable parties all over Europe at work to introduce what they take to be the American system; but constitutions are generated, not made--providential, not conventional. Statesmen can only develop what is in the existing constitutions of their respective countries, and no European constitution contains all the elements of the American. European Liberals mistake the American system, and, were they to succeed in their efforts, would not introduce it, but something more hostile to it than the governments and institutions they are warring against. They start from narrow, sectarian, or infidel premises, and seek not freedom of worship, but freedom of denial. They suppress the freedom of religion as the means of securing what they call religious liberty--imagine that they secure freedom of thought by extinguishing the light without which no thought is possible, and advance civilization by undermining its foundation. The condemnation of their views and movements by the Holy Father in the Encyclical, which has excited so much hostility, may seem to superficial and unthinking Americans even, as a condemnation of our American system--indeed, as the condemnation of modern science, intelligence, and civilization itself; but whoever looks below the surface, has some insight into the course of events, understands the propositions and movements censured, and the sense in which they are censured, is well assured that the Holy Father has simply exercised his pastoral and teaching authority to save religion, society, science, and civilization from utter corruption or destruction. The opinions, tendencies, and movements, directly or by implication censured, are the effect of narrow and superficial thinking, of partial and one-sided views, and are sectarian, sophistical, and hostile to all real progress, and tend, as far as they go, to throw society back into the barbarism from which, after centuries of toil and struggle, it is just beginning to emerge. The Holy Father has condemned nothing that real philosophy, real science does not also condemn; nothing, in fact, that is not at war with the American system itself. For the mass of the people, it were desirable that fuller explanations should be given of the sense in which the various propositions censured are condemned, for some of them are not, in every sense, false; but the explanations needed were expected by the Holy Father to be given by the bishops and prelates, to whom, not to the people, save through them, the Encyclical was addressed. Little is to be hoped, and much is to be feared, for liberty, science, and civilization from European Liberalism, which has no real affinity with American territorial democracy and real civil and religious freedom. But God and reality are present in the Old World as, well as in the New, and it will never do to restrict their power or freedom. Whether the American people will prove faithful to their mission, and realize their destiny, or not, is known only to Him from whom nothing is hidden. Providence is free, and leaves always a space for human free-will. The American people can fail, and will fail if they neglect the appointed means and conditions of success; but there is nothing in their present state or in their past history to render their failure probable. They have in their internal constitution what Rome wanted, and they are in no danger of being crushed by exterior barbarism. Their success as feeble colonies of Great Britain in achieving their national independence, and especially in maintaining, unaided, and against the real hostility of Great Britain and France, their national unity and integrity against a rebellion which, probably, no other people could have survived, gives reasonable assurance for their future. The leaders of the rebellion, than whom none better knew or more nicely calculated the strength and resources of the Union, counted with certainty on success, and the ablest, the most experienced, and best informed statesmen of the Old World felt sure that the Republic was gone, and spoke of it as the late United States. Not a few, even in the loyal States, who had no sympathy with the rebellion, believed it idle to think of suppressing it by force, and advised peace on the best terms that could be obtained. But Ilium fuit was chanted too soon; the American people were equal to the emergency, and falsified the calculations and predictions of their enemies, and surpassed the expectations of their friends. The attitude of the real American people during the fearful struggle affords additional confidence in their destiny. With larger armies on foot than Napoleon ever commanded, with their line of battle stretching from ocean to ocean, across the whole breadth of the continent, they never, during four long years of alternate victories and defeats--and both unprecedentedly bloody--for a moment lost their equanimity, or appeared less calm, collected, tranquil, than in the ordinary times of peace. They not for a moment interrupted their ordinary routine of business or pleasure, or seemed conscious of being engaged in any serious struggle which required an effort. There was no hurry, no bustle, no excitement, no fear, no misgiving. They seemed to regard the war as a mere bagatelle, not worth being in earnest about. The on-looker was almost angry with their apparent indifference, apparent insensibility, and doubted if they moved at all, Yet move they did: guided by an unerring instinct, they moved quietly on with an elemental force, in spite of a timid and hesitating administration, in spite of inexperienced, over-cautious, incompetent, or blundering military commanders, whom they gently brushed aside, and desisted not till their object was gained, and they saw the flag of the Union floating anew in the breeze from the capitol of every State that dared secede. No man could contemplate them without feeling that there was in them a latent power vastly superior to any which they judged it necessary to put forth. Their success proves to all that what, prior to the war, was treated as American arrogance or self-conceit, was only the outspoken confidence in their destiny as a Providential people, conscious that to them is reserved the hegemony of the world. Count de Maistre predicted early in the century the failure of the United States, because they have no proper name; but his prediction assumed what is not the fact. The United States have a proper name by which all the world knows and calls them. The proper name of the country is America: that of the people is Americans. Speak of Americans simply, and nobody understands you to mean the people of Canada, Mexico, Brazil, Peru, Chile, Paraguay, but everybody understands you to mean the people of the United States. The fact is significant, and foretells for the people of the United States a continental destiny, as is also foreshadowed in the so-called "Monroe doctrine," which France, during our domestic troubles, was permitted, on condition of not intervening in our civil war in favor of the rebellion, to violate. There was no statesmanship in proclaiming the "Monroe doctrine," for the statesman keeps always, as far as possible, his government free to act according to the exigencies of the case when it comes up, unembarrassed by previous declarations of principles. Yet the doctrine only expresses the destiny of the American people, and which nothing but their own fault can prevent them from realizing in its own good time. Napoleon will not succeed in his Mexican policy, and Mexico will add some fifteen or twenty new States to the American Union as soon as it is clearly for the interests of all parties that it should be done, and it can be done by mutual consent, without war or violence. The Union will fight to maintain the integrity of her domain and the supremacy of her laws within it, but she can never, consistently with her principles or her interests, enter upon a career of war and conquest. Her system is violated, endangered, not extended, by subjugating her neighbors, for subjugation and liberty go not together. Annexation, when it takes place, must be on terms of perfect equality and by the free act of the state annexed. The Union can admit of no inequality of rights and franchises between the States of which it is composed. The Canadian Provinces and the Mexican and Central American States, when annexed, must be as free as the original States of the Union, sharing alike in the power and the protection of the Republic--alike in its authority, its freedom, its grandeur, and its glory, as one free, independent, self-governing people. They may gain much, but must lose nothing by annexation. The Emperor Napoleon and his very respectable protege, Maximilian, an able man and a liberal-minded prince, can change nothing in the destiny of the United States, or of Mexico herself; no imperial government can be permanent beside the American Republic, no longer liable, since the abolition of slavery, to be distracted by sectional dissensions. The States that seceded will soon, in some way, be restored to their rights and franchises in the Union, forming not the least patriotic portion of the American people; the negro question will be settled, or settle itself, as is most likely, by the melting away of the negro population before the influx of white laborers; all traces of the late contest in a very few years will be wiped out, the national debt paid, or greatly reduced, and the prosperity and strength of the Republic be greater than ever. Its moral force will sweep away every imperial throne on the continent, without any effort or action on the part of the government. There can be no stable government in Mexico till every trace of the ecclesiastical policy established by the Council of the Indies is obliterated, and the church placed there on the same footing as in the United States; and that can hardly be done without annexation. Maximilian cannot divest the church of her temporal possessions and place Protestants and Catholics on the same footing, without offending the present church party and deeply injuring religion, and that too without winning the confidence of the republican party. In all Spanish and Portuguese America the relations between the church and state are abnormal, and exceedingly hurtful to both. Religion is in a wretched condition, and politics in a worse condition still. There is no effectual remedy for either but in religious freedom, now impracticable, and to be rendered practicable by no European intervention, for that subjects religion to the state, the very source of the evils that now exist, instead of emancipating it from the state, and leaving it to act according to its own constitution and laws, as under the American system. But the American people need not trouble themselves about their exterior expansion. That will come of itself as fast as desirable. Let them devote their attention to their internal destiny, to the realization of their mission within, and they will gradually see the Whole continent coming under their system, forming one grand nation, a really catholic nation, great, glorious, and free. 
52046	----	Transcriber's Note. Apparent typographical errors have been corrected. The use of hyphens has been rationalised. Notices of other books in the series have been moved to the end of the text. Small capitals have been replaced by full capitals, italics are indicated by _underscores_, and bold font is indicated by +plus signs+. Two superscripts are indicated by carets, as "2^ndly" and "1001^12". BELL'S ENGLISH HISTORY SOURCE BOOKS _General Editors_: S. E. WINBOLT, M.A., and KENNETH BELL, M.A. A CONSTITUTION IN MAKING (1660-1714) COMPILED BY G. B. PERRETT, M.A. LOND. EMMANUEL COLLEGE, CAMBRIDGE [Illustration: Bell] LONDON G. BELL AND SONS, LTD. 1912 INTRODUCTION THIS series of English History Source Books is intended for use with any ordinary textbook of English History. Experience has conclusively shown that such apparatus is a valuable--nay, an indispensable--adjunct to the history lesson. It is capable of two main uses: either by way of lively illustration at the close of a lesson, or by way of inference-drawing, before the textbook is read, at the beginning of the lesson. The kind of problems and exercises that may be based on the documents are legion, and are admirably illustrated in a _History of England for Schools_, Part I., by Keatinge and Frazer, pp. 377-381. However, we have no wish to prescribe for the teacher the manner in which he shall exercise his craft, but simply to provide him and his pupils with materials hitherto not readily accessible for school purposes. The very moderate price of the books in this series should bring them within the reach of every secondary school. Source books enable the pupil to take a more active part than hitherto in the history lesson. Here is the apparatus, the raw material: its use we leave to teacher and taught. Our belief is that the books may profitably be used by all grades of historical students between the standards of fourth-form boys in secondary schools and undergraduates at Universities. What differentiates students at one extreme from those at the other is not so much the kind of subject-matter dealt with, as the amount they can read into or extract from it. In regard to choice of subject-matter, while trying to satisfy the natural demand for certain "stock" documents of vital importance, we hope to introduce much fresh and novel matter. It is our intention that the majority of the extracts should be lively in style--that is, personal, or descriptive, or rhetorical, or even strongly partisan--and should not so much profess to give the truth as supply data for inference. We aim at the greatest possible variety, and lay under contribution letters, biographies, ballads and poems, diaries, debates, and newspaper accounts. Economics, London, municipal, and social life generally, and local history, are represented in these pages. The order of the extracts is strictly chronological, each being numbered, titled, and dated, and its authority given. The text is modernised, where necessary, to the extent of leaving no difficulties in reading. We shall be most grateful to teachers and students who may send us suggestions for improvement. S. E. WINBOLT. KENNETH BELL. TABLE OF CONTENTS PAGE INTRODUCTION v 1660. DECLARATION OF BREDA _Parliamentary History_ 1 1660. THE RESTORATION _Clarendon's "History"_ 3 1662. THE ACT OF UNIFORMITY _Statutes of the Realm_ 11 1665. THE PLAGUE IN LONDON _Defoe's "Works"_ 14 1666. THE GREAT FIRE OF LONDON _Pepys's "Diary"_ 22 1668. THE TRIPLE ALLIANCE _Sir W. Temple's "Letters"_ 27 1672-73. THE DECLARATION OF INDULGENCE _Journals of the House of AND TEST ACT Commons_ 30 1673. COFFEE HOUSES _Harleian Miscellany_ 34 1673. A PARLIAMENTARY ELECTION "_Lives of the Norths_" 38 1675. A BOGUS "KING'S SPEECH" "_Contemporary Satire_" 40 1679. HABEAS CORPUS ACT _Statutes of the Realm_ 43 1678-81. THE POPISH TERROR _Burnet's "Own Times"_ 47 1680. STAFFORD'S TRIAL _Evelyn's "Diary"_ 56 1681. CHARACTER OF SHAFTESBURY _Dryden's "Absalom and Achitophel"_ 61 JUDGE JEFFREYS--A CHARACTER SKETCH "_Lives of the Norths_" 63 1688. TRIAL OF THE SEVEN BISHOPS _Kennet's "Complete History"_ 66 1688. THE INVITATION TO THE PRINCE OF ORANGE _British Museum MS._ 71 1688. THE COMING OF THE PRINCE OF ORANGE _Burnet's "Own Times"_ 75 1689. THE BILL OF RIGHTS _Statutes of the Realm_ 83 1691. CORRESPONDENCE RELATING TO "_Letters of Bonwicke NON-JURORS and Blechynden_" 90 1692. PACIFICATION OF THE HIGHLANDS _Domestic State Papers_ 93 1696. THE TREASONS ACT _Statutes of the Realm_ 95 1699. THE COLONIAL POST _Treasury Papers_ 97 1701. ACT OF SETTLEMENT _Statutes of the Realm_ 99 1704. MARLBOROUGH ON BLENHEIM "_Marlborough's Letters_" 100 1707. ACT OF UNION OF ENGLAND AND SCOTLAND _Statutes of the Realm_ 102 1710. IMPEACHMENT OF DR. SACHEVERELL _Parliamentary History_ 105 1712. MARLBOROUGH'S REPLY TO PECULATION CHARGE "_Acton Library Pamphlets_" 108 1712. TORIES AND THE WAR _Swift's "Conduct of the Allies"_ 112 THE VICAR OF BRAY _Old Song_ 119 A CONSTITUTION IN MAKING 1660-1714 DECLARATION OF BREDA (1660). +Source.+--_Parliamentary History._ London, 1810. Vol. iv., pp. 16-18. CHARLES R. Charles, by the grace of God, King of England, Scotland, France and Ireland, Defender of the Faith, etc. To all our loving subjects, of what degree or quality soever, greeting. If the general distraction and confusion which is spread over the whole kingdom doth not awaken all men to a desire and longing that those wounds which have so many years together been kept bleeding, may be bound up, all we can say will be to no purpose; however, after this long silence, we have thought it our duty to declare how much we desire to contribute thereunto; and that as we can never give over the hope, in good time, to obtain the possession of that right which God and nature hath made our due, so we do make it our daily suit to the Divine Providence, that He will, in compassion to us and our subjects after so long misery and sufferings, remit and put us into a quiet and peaceable possession of that our right, with as little blood and damage to our people as is possible; nor do we desire more to enjoy what is ours, than that all our subjects may enjoy what by law is theirs, by a full and entire administration of justice throughout the land, and by extending our mercy where it is wanted and deserved. And to the end that the fear of punishment may not engage any, conscious to themselves of what is past, to a perseverance in guilt for the future, by opposing the quiet and happiness of their country, in the restoration of King, Peers and people to their just, ancient and fundamental rights, we do, by these presents, declare, that we do grant a free and general pardon, which we are ready, upon demand, to pass under our Great Seal of England, to all our subjects, of what degree or quality soever, who, within forty days after the publishing hereof, shall lay hold upon this our grace and favour, and shall, by any public act, declare their doing so, and that they return to the loyalty and obedience of good subjects; excepting only such persons as shall hereafter be excepted by Parliament, those only to be excepted. Let all our subjects, how faulty soever, rely upon the word of a King, solemnly given by this present declaration, that no crime whatsoever, committed against us or our royal father before the publication of this, shall ever rise in judgment, or be brought in question, against any of them, to the least endamagement of them, either in their lives, liberties or estates, or (as far forth as lies in our power) so much as to the prejudice of their reputations, by any reproach or term of distinction from the rest of our best subjects; we desiring and ordaining that henceforth all notes of discord, separation and difference of parties be utterly abolished among all our subjects, whom we invite and conjure to a perfect union among themselves, under our protection, for the re-settlement of our just rights and theirs in a free Parliament, by which, upon the word of a King, we will be advised. And because the passion and uncharitableness of the times have produced several opinions in religion, by which men are engaged in parties and animosities against each other (which, when they shall hereafter unite in a freedom of conversation, will be composed or better understood), we do declare a liberty to tender consciences, and that no man shall be disquieted or called in question for differences of opinion in matter of religion, which do not disturb the peace of the kingdom; and that we shall be ready to consent to such an Act of Parliament, as, upon mature deliberation, shall be offered to us, for the full granting that indulgence. And because in the continued distractions of so many years, and so many and great revolutions, many grants and purchases of estates have been made to and by many officers, soldiers and others, who are now possessed of the same, and who may be liable to actions at law upon several titles, we are likewise willing that all such differences, and all things relating to such grants, sales and purchases, shall be determined in Parliament, which can best provide for the satisfaction of all men who are concerned. And we do further declare, that we will be ready to consent to any Act or Acts of Parliament to the purposes aforesaid, and for the full satisfaction of all arrears due to the officers and soldiers in the army under the command of General Monk; and that they shall be received into our service upon as good pay and conditions as they now enjoy. Given under our Sign Manual and Privy Signet, at our Court at Breda, this 4/14 day of April, 1660, in the twelfth year of our reign. THE RESTORATION (1660). +Source.+--Clarendon's _History of the Great Rebellion_. Folio Edition, 1759. Vol. iv., pp. 1-8. The easy and glorious Reception of the King, in the Manner that hath been mentioned, without any other Conditions than what had been frankly offered by himself in his Declaration and letters from _Breda_; the Parliament's casting themselves in a Body at his Feet, in the Minute of his Arrival at _Whitehall_, with all the Professions of Duty and Submission imaginable; and no other Man having Authority there, but They who had either eminently served the late King, or who were since grown up out of their Nonage from such Fathers, and had throughly manifested their past Fidelity to his present Majesty; the rest who had been enough criminal, shewing more Animosity towards the severe Punishment of those, who having more Power in the late Times had exceeded them in Mischief, than care for their own Indemnity: This Temper sufficiently evident, and the universal Joy of the People, which was equally visible, for the total Suppression of all those who had so many Years exercised Tyranny over them, made most Men believe both abroad and at home, that God had not only restored the King miraculously to his Throne, but that He had, as He did in the Time of _Hezekiah, prepared the People, for the Thing was done suddenly_, (2 Chron. xxix. 36) in such a Manner that his Authority and Greatness would have been more illustrious, than it had been in any of his Ancestors. And it is most true, and must never be denied, that the People were admirably disposed and prepared to pay all the Subjection, Duty and Obedience, that a just and prudent King could expect from them, and had a very sharp Aversion and Detestation of all those who had formerly misled and corrupted them; so that, except the General, who seemed to be possessed entirely of the Affection of the Army, and whose Fidelity was now above any Misapprehension, there appeared no Man whose Power and Interest could in any Degree shake or endanger the Peace and Security the King was in; the Congratulations for his Return being so universal, from all the Counties of _England_, as well as from the Parliament and City; from all those who had most signally disserved and disclaimed him, as well as from those of his own Party and those who were descended from them: Insomuch as the King was wont merrily to say, as hath been mentioned before, "that it could be no Bodies Fault but his own that He had stayed so long abroad, when all Mankind wished him so heartily at home." It cannot therefore but be concluded by the Standers by, and the Spectators of this wonderful Change and Exclamation of all Degrees of Men, that there must be some wonderful Miscarriages in the State, or some unheard of Defect of Understanding in those who were trusted by the King in the Administration of his Affairs; that there could in so short a Time be a new Revolution in the general Affections of the People, that they grew even weary of that Happiness They were possessed of and had so much valued, and fell into the same Discontents and Murmuring which had naturally accompanied them in the worst Times. * * * * * The King brought with him from beyond the Seas that Council which had always attended him, and whose Advice He had always received in his Transactions of greatest Importance; and his small Family, that consisted of Gentlemen who had for the most Part been put about him by his Father, and constantly waited upon his Person in all his Distress, with as much Submission and Patience undergoing their Part in it, as could reasonably be expected from such a People; and therefore had the keener Appetites, and the stronger Presumption to push on their Fortunes (as They called it) in the Infancy of their Master's Restoration, that other Men might not be preferred before them, who had not _borne the Heat of the Day_, as They had done. Of the Council were the Chancellor, the Marquis of _Ormond_, the Lord _Colepepper_, and Secretary _Nicholas_, who lived in great Unity and Concurrence in the Communication of the most secret Counsels. There had been more of his Council abroad with him, who, according to the Motions He made and the Places He had resided in, were some Times with him, but other remained in _France_, or in some Parts of _Holland_ and _Flanders_, for their Convenience, ready to repair to his Majesty when They should be called. The four nominated above were They who constantly attended, were privy to all Counsels, and waited upon him in his Return. The Chancellor was the highest in Place, and thought to be so in Trust, because He was most in private with the King, had managed most of the secret Correspondence in England and all Dispatches of Importance had passed through his Hands; which had hitherto been with the less Envy, because the indefatigable Pains he took were very visible, and it was as visible that He gained Nothing by it. His Wants and Necessities were as great as any Man's, nor was the Allowance assigned to him by the King in the least Degree more, or better paid, than every one of the Council received. Besides the Friendship was so entire between the Marquis of _Ormonde_ and him, that no Arts that were used could dissolve it; and it was enough known, that as He had an entire and full Confidence from the King and a greater Esteem than any Man, so that the Chancellor so entirely communicated all Particulars with him, and there was not the least Resolution taken without his Privity and Approbation. The Chancellor had been employed by the last King in all the Affairs of the greatest Trust and Secrecy; had been made Privy Counsellor and Chancellor of the Exchequer in the very Beginning of the Troubles; and had been sent by that King into the _West_ with his Son, when He thought their Interest would be best preserved and provided for by separating their Persons. A greater Testimony and Recommendation a Servant could not receive from his Master, than the King gave of him to the Prince, who from that Time treated him with as much Affection and Confidence as any Man, and which (notwithstanding very powerful Opposition) He continued and improved to this Time of his Restoration; and even then rejected some Intimations rather than Propositions which were secretly made to him at the _Hague_, that the Chancellor was a Man very much in the Prejudice of the Presbyterian Party, as in Truth He was, and therefore that his Majesty would do best to leave him behind, till He should be himself settled in _England_: Which the King received with that Indignation and Disdain, and answered the Person, who privately presumed to give the Advice, in such a manner, that He was troubled no more with the Importunity, nor did any Man ever own the Advice. * * * * * The first Mortification the King met with was as soon as He arrived at _Canterbury_, which was within three Hours after He landed at _Dover_; and where He found many of those who were justly looked upon, from their own Sufferings or those of their Fathers, and their constant adhering to the same Principles, as of the King's Party, who with Joy waited to kiss His Hand, and were received by him with those open Arms and flowing Expressions of Grace, calling all those by their Names who were known to him, that They easily assured themselves of the Accomplishment of all their Desires from such a Generous Prince. And some of them, that They might not lose the first Opportunity, forced him to give them present Audience, in which They reckoned up the insupportable Losses undergone by themselves or their Fathers, and some services of their own; and thereupon demanded the present Grant or Promise of such or such an Office. Some, for the real small Value of one though of the first _Classis_ pressed for two or three with such Confidence and Importunity, and with such tedious Discourses, that the King was extremely nauseated with their Suits, though his Modesty knew not how to break from them; that He no sooner got into his Chamber, which for some Hours He was not able to do, than He lamented the Condition to which He found He must be subject: And did in Truth from that Minute contract such a prejudice against the Persons of some of those, though of the greatest Quality, for the Indecency and Incongruity of their Pretences, that He never afterwards received their Addresses with his usual Grace or Patience, and rarely granted any Thing They desired, though the Matter was more reasonable, and the Manner of asking much more modest. But there was another Mortification which immediately succeeded this, that gave him much more Trouble, and in which He knew not how to comport himself. The General, after He had given all necessary Orders to his Troops, and sent a short Dispatch to the Parliament of the King's being come to _Canterbury_, and of his Purpose to stay there two Days till the next _Sunday_ was past, He came to the King in his Chamber, and in a short, secret Audience, and without any Preamble or Apology, as He was not a Man of a graceful Elocution, He told him "that He could not do him better Service, than by recommending to him such Persons, who were most grateful to the People, and in Respect of their Parts and Interests were best able to serve him." And thereupon gave him a large Paper full of Names, which the King in Disorder enough received, and without reading put it into his Pocket that He might not enter into any particular Debate upon the Persons, and told him "that He would be always ready to receive his Advice, and willing to gratify him in any Thing he should desire, and which would not be prejudicial to his Service." The King, as soon as He could, took an Opportunity, when there remained no more in his Chamber, to inform the Chancellor of the first Assaults He had encountered as soon as He alighted out of his Coach, and afterwards of what the General had said to him; and thereupon took the Paper out of his Pocket and read it. It contained the Names of at least threescore and ten Persons, who were thought fittest to be made Privy Counsellors; in the whole Number whereof, there were only two, who had ever served the King or been looked upon as zealously affected to his Service, the Marquis of _Hertford_, and the Earl of _Southampton_, who were both of so universal Reputation and Interest, and so well known to have the very particular Esteem of the King, that They needed no such Recommendation. All the rest were either those Counsellors who had served the King, and deserted him by adhering to the Parliament, or of those who had most eminently disserved him in the Beginning of the Rebellion, and in the carrying it on with all Fierceness and Animosity until the new Model, and dismissing the Earl of _Essex_: Then indeed _Cromwell_ had grown terrible to them, and disposed them to wish the King were again possessed of his regal Power, and which They did but wish. There were then the Names of the principal Persons of the Presbyterian Party, to which the General was thought to be most inclined, at least to satisfy the foolish and unruly Inclinations of his Wife. There were likewise the Names of some who were most notorious in all the other Factions; and of some who in Respect of their mean Qualities and meaner Qualifications, no body could imagine how They could come to be named, except that, by the very odd Mixture, any sober and wise Resolutions and Concurrence might be prevented. The King was in more than ordinary Confusion with the reading this Paper, and knew not well what to think of the General, in whose absolute Power He now was. However He resolved in the Entrance upon his Government not to consent to such Impositions, which might prove perpetual Fetters and Chains upon him ever after. He gave the Paper therefore to the Chancellor, and bade him "take the first Opportunity to discourse the Matter with the General" (whom He had not yet saluted) "or rather with Mr _Morrice_ his most intimate Friend," whom He had newly presented to the King, and "with Both whom He presumed He would shortly be acquainted," though for the present both were equally unknown to him. Shortly after, when mutual visits had passed between them, and such Professions as naturally are made between Persons who were like to have much to do with each other; and Mr _Morrice_ being in private with him, the Chancellor told him "how much the King was surprised with the Paper He had received from the General, which at least recommended (and which would have always great Authority with him) some such Persons to his Trust, in whom He could not yet, till They were better known to him, repose any Confidence." And thereupon He read many of their Names, and said, "that if such Men were made Privy Counsellors, it would either be imputed to the King's own Election, which would cause a very ill Measure to be taken of his Majesty's Nature and Judgement; or (which more probably would be the Case) to the Inclination and Power of the General, which would be attended with as ill Effects." Mr _Morrice_ seemed much troubled at the Apprehension, and said, "the Paper was of his Handwriting, by the General's Order, who He was assured had no such Intention; but that He would presently speak with him and return," which He did within less than an Hour, and expressed "the Trouble the General was in upon the King's very just Exception; and that the Truth was, _He had been obliged to have much Communication with Men of all Humours and Inclinations, and so had promised to do them good Offices to the King, and could not therefore avoid_ _inserting their Names in that Paper, without any Imaginations that the King would accept them: That he had done his Part, and all that could be expected from him, and left the King to do what He had thought best for his own Service, which He would always desire him to do, whatever Proposition he should at any Time presume to make to his Majesty, which He would not promise should be always reasonable. However, He did still heartily wish that his Majesty would make use of some of those Persons_," whom He named, and said, "_He knew most of them were not his Friends, and that his Service would be more advanced by admitting them, than by leaving them out._" The King was abundantly pleased with this good Temper of the General, and less disliked those, who He discerned would be grateful to him, than any of the rest: And so the next Day, He made the General Knight of the _Garter_, and admitted him of the Council; and likewise at the same Time gave the Signet to Mr _Morrice_, who was sworn of the Council and Secretary of State; and Sir _Antony Ashley Cooper_ who had been presented by the General under a special Recommendation, was then too sworn of the Council, and the rather, because having lately married the Niece of the Earl of _Southampton_ (who was then likewise present, and received the _Garter_ to which He had been elected some Years before) it was believed that his slippery Humour would be easily restrained and fixed by the Uncle. All this was transacted during his Majesty's Stay at _Canterbury_. Upon the 29th of _May_, which was his Majesty's Birth-Day, and now the Day of his Restoration and Triumph, He entered _London_ the Highway from _Rochester_ to _Blackheath_, being on both Sides so full of Acclamations of Joy, and crowded with such a Multitude of People that it seemed one continued Street wonderfully inhabited. Upon _Blackheath_ the Army was drawn up, consisting of above fifty thousand Men, Horse and Foot, in excellent Order and Equipage, where the General presented the chief Officers to kiss the King's Hands, which Grace They seemed to receive with all Humility and Chearfulness. Shortly after, the Lord Mayor of _London_, the Sheriffs, and Body of the Aldermen, with the whole Militia of the City, appeared with great Lustre; whom the King received with a most graceful and obliging Countenance, and knighted the Mayor and all the Aldermen, and Sheriffs, and the principal Officers of the Militia: an Honour the City had been without near eighteen years, and therefore abundantly welcome to the Husbands and their Wives. With this Equipage the King was attended through the City of _London_, where the Streets were railed in on Both Sides that the Livery of the Companies of the City might appear with the more Order and Decency, till he came to _Whitehall_; the Windows all the way being full of Ladies and Persons of Quality, who were impatient to fill their Eyes with a beloved Spectacle of which They had been so long deprived. The King was no sooner at _Whitehall_, but (as hath been said) the Speakers, and Both Houses of Parliament, presented themselves with all possible Professions of Duty and Obedience at his Royal Feet, and were even ravished with the cheerful Reception They had from him. The Joy was universal; and whosoever was not pleased at Heart, took the more Care to appear as if He was; and no Voice was heard but of the highest Congratulation, of extolling the Person of the King, admiring his Condescentions and Affability, raising his Praises to Heaven, and cursing and detesting the Memory of those villains who had so long excluded so meritorious a Prince, and thereby withheld that Happiness from them, which they should enjoy in the largest Measure they could desire or wish. THE ACT OF UNIFORMITY (1662). +Source.+--_Statutes of the Realm._ Vol. v., pp. 364-370. Whereas in the first year of the late Queen Elizabeth there was one uniform order of common service and prayer and of the administration of sacraments, rites, and ceremonies in the Church of England ... compiled by the reverend bishops and clergy, intituled, The Book of Common Prayer ... and enjoined to be used by Act of Parliament ... and yet ... a great number of people in divers parts of this realm ... do wilfully and schismatically ... refuse to come to their parish churches ... upon the Sundays and other days ... appointed to be kept as holy days; And whereas by the great and scandalous neglect of ministers in using the said order or liturgy ..., great mischiefs and inconveniences, during the times of the late unhappy troubles, have arisen ... and many people have been led into factions and schisms, to the great decay and scandal of the reformed religion of the Church of England, and to the hazard of many souls:--For the prevention of which ... in time to come, for settling the peace of the Church and for allaying the present distempers which the indisposition of the time hath contracted, the King's Majesty ... granted his commission under the Great Seal of England to several bishops and other divines to review the Book of Common Prayer and to prepare such alterations and additions as they thought fit to offer. And afterwards the convocations, ... being by his Majesty ... assembled, his Majesty hath been pleased to authorize and require the presidents of the said convocations ... to review the said Book of Common Prayer, and the book of the form and manner of the making and consecrating of bishops, priests, and deacons; And that ... they should make such additions and alterations in the said books ... as to them should seem meet and convenient. [Which things being done] his Majesty ... hath fully approved and allowed the same, and recommended to this present Parliament, That the said Books of Common Prayer and of the form of ordination and consecration of bishops, priests, and deacons, with the alterations ... made, ... be the book which shall be appointed to be used by all that officiate in all cathedral and collegiate churches and chapels, and in all chapels of colleges and halls in both the universities, and the colleges of Eton and Winchester, and in all parish churches and chapels within the kingdom of England, dominion of Wales, and town of Berwick upon Tweed, and by all that make or consecrate bishops, priests, or deacons. Be it enacted by the King's most excellent Majesty, by the advice and with the consent of the Lords spiritual and temporal, and of the Commons, in this present parliament assembled ... that all and singular ministers in any cathedral, collegiate or parish church or chapel, or other place of public worship within this realm of England, dominion of Wales, and town of Berwick upon Tweed, shall be bound to say and use ... the Book of Common Prayer. That every parson, vicar, or other minister whatsoever, who now ... enjoyeth any ecclesiastical benefice or promotion within the ... places aforesaid, shall, in the church, chapel, or place of public worship belonging to his said benefit or promotion, upon some Lord's day before the feast of St. Bartholomew ... in the year ... one thousand six hundred and sixty and two, openly, publicly, and solemnly read the Morning and Evening Prayer ... according to the said Book of Common Prayer ... and after such reading ... shall openly and publicly, before the congregation there assembled, declare his unfeigned assent and consent to the use of all things in the said book ... in these words, and no other:-- "I [name] do hereby declare my unfeigned assent and consent to all and every thing contained and prescribed in and by the book, intituled, The Book of Common Prayer and administration of the sacraments, and other rites and ceremonies of the Church of England, together with the psalter or psalms of David, appointed as they are to be sung or said in churches; and the form or manner of making, ordaining, and consecrating of bishops, priests and deacons." And that all ... who shall ... neglect or refuse to do the same ... shall _ipso facto_ be deprived of all his spiritual promotions. And that ... every dean, canon, and prebendary of every cathedral or collegiate church, and all masters and other heads, fellows, chaplains, and tutors of or in any college, hall, house of learning or hospital, and every public professor and reader in either of the universities, and in every college elsewhere, and every parson, vicar, curate, lecturer, and every other person in holy orders, and every schoolmaster keeping any public or private school, and every person instructing or teaching any youth in any house or private family as a tutor or schoolmaster ... shall, before the feast of St. Bartholomew [1662] subscribe to the declaration following.... "I [name] do declare that it is not lawful upon any pretence whatsoever to take up arms against the king, and that I do abhor that traitorous position of taking arms by his authority against his person; and that I will conform to the liturgy of the Church of England, as it is now by law established. And I do declare that I do hold there lies no obligation, upon me or on any other person, from the oath commonly called The solemn league and covenant, to endeavour any ... alteration of government either in church or state, and that the same was in itself an unlawful oath, and imposed upon the subjects of this realm against the known laws and liberties of this kingdom." THE PLAGUE IN LONDON (1665). By DANIEL DE FOE. +Source.+--Bohn Edition, pp. 14-16, 44-48. The city itself began now to be visited too, I mean within the walls; but the number of people there were indeed extremely lessened, by so great a multitude having been gone into the country; and even all this month of July, they continued to flee, though not in such multitudes as formerly. In August, indeed, they fled in such a manner, that I began to think there would be really none but magistrates and servants left in the city. As they fled now out of the city, so I should observe, that the court removed early, viz., in the month of June, and went to Oxford, where it pleased God to preserve them; and the distemper did not, as I heard of, as much as touch them; for which I cannot say that I ever saw they showed any great token of thankfulness, and hardly anything of reformation, though they did not want being told that their crying vices might, without breach of charity, be said to have gone far in bringing that terrible judgment upon the whole nation. The face of London was now indeed strangely altered, I mean the whole mass of buildings, city, liberties, suburbs, Westminster, Southwark, and altogether; for, as to the particular part called the city, or within the walls, that was not yet much infected; but in the whole, the face of things, I say, was much altered; sorrow and sadness sat upon every face, and though some parts were not yet overwhelmed, yet all looked deeply concerned; and as we saw it apparently coming on, so every one looked on himself, and his family, as in the utmost danger: were it possible to represent those times exactly, to those that did not see them, and give the reader due ideas of the horror that everywhere presented itself, it must make just impressions upon their minds, and fill them with surprise. London might well be said to be all in tears; the mourners did not go about the streets indeed, for nobody put on black, or made a formal dress of mourning for their nearest friends; but the voice of mourning was truly heard in the streets; the shrieks of women and children at the windows and doors of their houses, where their nearest relations were, perhaps dying, or just dead, were so frequent to be heard, as we passed the streets, that it was enough to pierce the stoutest heart in the world to hear them. Tears and lamentations were seen almost in every house, especially in the first part of the visitation; for towards the latter end, men's hearts were hardened, and death was so always before their eyes, that they did not so much concern themselves for the loss of their friends, expecting that themselves should be summoned the next hour. Business led me out sometimes to the other end of the town, even when the sickness was chiefly there; and as the thing was new to me, as well as to everybody else, it was a most surprising thing to see those streets, which were usually so thronged, now grown desolate, and so few people to be seen in them, that if I had been a stranger, and at a loss for my way, I might sometimes have gone the length of a whole street, I mean of the by-streets, and see nobody to direct me, except watchmen set at the doors of such houses as were shut up; of which I shall speak presently. One day, being at that part of the town, on some special business, curiosity led me to observe things more than usually; and indeed I walked a great way where I had no business; I went up Holborn, and there the street was full of people; but they walked in the middle of the great street, neither on one side or other, because, as I suppose, they would not mingle with anybody that came out of houses, or meet with smells and scents from houses that might be infected. The inns of court were all shut up, nor were very many of the lawyers in the Temple, or Lincoln's-inn, or Gray's-inn, to be seen there. Everybody was at peace, there was no occasion for lawyers; besides, it being in the time of the vacation too, they were generally gone into the country. Whole rows of houses in some places were shut close up, the inhabitants all fled, and only a watchman or two left. When I speak of rows of houses being shut up, I do not mean shut up by the magistrates; but that great numbers of persons followed the court, by the necessity of their employments, and other dependencies; and as others retired, really frighted with the distemper, it was a mere desolating of some of the streets: but the fright was not yet near so great in the city, abstractedly so called; and particularly because, though they were at first in a most inexpressible consternation, yet, as I have observed, that the distemper intermitted often at first, so they were as it were alarmed, and unalarmed again, and this several times, till it began to be familiar to them; and that even when it appeared violent, yet seeing it did not presently spread into the city, or the east or south parts, the people began to take courage, and to be, as I may say, a little hardened. It is true, a vast many people fled, as I have observed, yet they were chiefly from the west end of the town, and from that we call the heart of the city, that is to say, among the wealthiest of the people; and such persons as were unincumbered with trades and business. But of the rest, the generality stayed, and seemed to abide the worst; so that in the place we call the liberties, and in the suburbs, in Southwark, and in the east part, such as Wapping, Ratcliff, Stepney, Rotherhithe, and the like, the people generally stayed, except here and there a few wealthy families, who, as above, did not depend upon their business. It must not be forgot here, that the city and suburbs were prodigiously full of people at the time of this visitation, I mean at the time that it began; for though I have lived to see a farther increase, and mighty throngs of people settling in London, more than ever; yet we had always a notion that numbers of people, which, the wars being over, the armies disbanded, and the royal family and the monarchy being restored, had flocked to London to settle in business, or to depend upon, and attend the court for rewards of services, preferments, and the like, was such that the town was computed to have in it above a hundred thousand people more than ever it held before; nay, some took upon them to say, it had twice as many, because all the ruined families of the royal party flocked hither; all the soldiers set up trades here and abundance of families settled here; again, the court brought with it a great flux of pride and new fashions; all people were gay and luxurious, and the joy of the restoration had brought a vast many families to London. I went all the first part of the time freely about the streets, though not so freely as to run myself into apparent danger, except when they dug the great pit in the churchyard of our parish of Aldgate. A terrible pit it was, and I could not resist my curiosity to go and see it; as near as I may judge, it was about forty feet in length, and about fifteen or sixteen feet broad; and, at the time I first looked at it, about nine feet deep; but it was said, they dug it near twenty feet deep afterwards, in one part of it, till they could go no deeper for the water; for they had, it seems, dug several large pits before this; for, though the plague was long a coming to our parish, yet, when it did come, there was no parish in or about London where it raged with such violence as in the two parishes of Aldgate and Whitechapel. I say they had dug several pits in another ground when the distemper began to spread in our parish, and especially when the dead-carts began to go about, which was not in our parish till the beginning of August. Into these pits they had put perhaps fifty or sixty bodies each, then they made larger holes, wherein they buried all that the cart brought in a week, which, by the middle to the end of August, came to from two hundred to four hundred a week; and they could not well dig them larger, because of the order of the magistrates, confining them to leave no bodies within six feet of the surface; and the water coming on at about seventeen or eighteen feet, they could not well, I say, put more in one pit; but now, at the beginning of September, the plague raging in a dreadful manner, and the number of burials in our parish increasing to more than was ever buried in any parish about London, of no larger extent, they ordered this dreadful gulf to be dug, for such it was rather than a pit. They had supposed this pit would have supplied them for a month or more, when they dug it, and some blamed the churchwardens for suffering such a frightful thing, telling them they were making preparations to bury the whole parish, and the like; but time made it appear the churchwardens knew the condition of the parish better than they did; for the pit being finished the 4th of September, I think they began to bury in it the 6th, and by the 20th, which was just two weeks, they had thrown into it 1,114 bodies, when they were obliged to fill it up, the bodies being then come to lie within six feet of the surface. I doubt not but there may be some ancient persons alive in the parish, who can justify the fact of this, and are able to show even in what place of the churchyard the pit lay better than I can; the mark of it also was many years to be seen in the churchyard on the surface, lying in length, parallel with the passage which goes by the west wall of the churchyard, out of Houndsditch, and turns east again, into Whitechapel, coming out near the Three-Nuns inn. It was about the 10th of September, that my curiosity led, or rather drove me to go and see this pit again, when there had been near four hundred people buried in it; and I was not content to see it in the day time, as I had done before, for then there would have been nothing to have been seen but the loose earth; for all the bodies that were thrown in were immediately covered with earth, by those they called the buriers, which at other times were called bearers; but I resolved to go in the night, and see some of them thrown in. There was a strict order to prevent people coming to those pits, and that was only to prevent infection; but, after some time, that order was more necessary, for people that were infected, and near their end, and delirious also, would run to those pits wrapt in blankets, or rugs, and throw themselves in, and, as they said, bury themselves. I cannot say that the officers suffered any willingly to lie there; but I have heard, that in a great pit in Finsbury, in the parish of Cripplegate, it lying open then to the fields, for it was not then walled about, many came and threw themselves in, and expired there, before they threw any earth upon them; and that when they came to bury others, and found them there, they were quite dead, though not cold. This may serve a little to describe the dreadful condition of that day, though it is impossible to say anything that is able to give a true idea of it to those who did not see it, other than this; that it was indeed, very, very, very dreadful, and such as no tongue can express. I got admittance into the churchyard by being acquainted with the sexton who attended, who, though he did not refuse me at all, yet earnestly persuaded me not to go: telling me very seriously, for he was a good religious and sensible man, that it was, indeed, their business and duty to venture, and to run all hazards, and that in it they might hope to be preserved; but that I had no apparent call to it but my own curiosity, which, he said, he believed I would not pretend, was sufficient to justify my running that hazard. I told him I had been pressed in my mind to go, and that, perhaps, it might be an instructing sight, that might not be without its uses. Nay, says the good man, if you will venture upon that score, Name of God, go in; for, depend upon it, it will be a sermon to you, it may be, the best that ever you heard in your life. It is a speaking sight, says he, and has a voice with it, and a loud one, to call us all to repentance; and with that he opened the door, and said, Go, if you will. His discourse had shocked my resolution a little, and I stood wavering for a good while, but, just at that interval, I saw two links come over from the end of the Minories, and heard the bellman, and then appeared a dead-cart, as they called it, coming over the streets; so I could no longer resist my desire of seeing it, and went in. There was nobody as I could perceive at first, in the churchyard, or going into it, but the buriers, and the fellow that drove the cart, or rather led the horse and cart, but when they came up to the pit, they saw a man go to and again, muffled up in a brown cloak, and making motions with his hands, under his cloak, as if he was in great agony; and the buriers immediately gathered about him, supposing he was one of those poor delirious, or desperate creatures, that used to pretend, as I have said, to bury themselves; he said nothing as he walked about, but two or three times groaned very deeply, and loud, and sighed as he would break his heart. When the buriers came up to him, they soon found he was neither a person infected and desperate, as I have observed above, or a person distempered in mind, but one oppressed with a dreadful weight of grief indeed, having his wife and several of his children, all in the cart, that was just come in with him, and he followed in an agony and excess of sorrow. He mourned heartily, as it was easy to see, but with a kind of masculine grief, that could not give itself vent by tears; and, calmly desiring the buriers to let him alone, said he would only see the bodies thrown in, and go away, so they left importuning him; but no sooner was the cart turned round, and the bodies shot into the pit, promiscuously, which was a surprise to him, for he at least expected they would have been decently laid in, though indeed, he was afterwards convinced that was impracticable; I say, no sooner did he see the sight, but he cried out aloud, unable to contain himself. I could not hear what he said, but he went backwards two or three steps, and fell down in a swoon; the buriers ran to him and took him up, and in a little while he came to himself, and they led him away. He looked into the pit again, as he went away, but the buriers had covered the bodies so immediately with throwing in earth, that nothing could be seen. This was a mournful scene indeed, and affected me almost as much as the rest; but the other was awful, and full of terror; the cart had in it sixteen or seventeen bodies, some were wrapt up in linen sheets, some in rugs, some little other than naked, or so loose, that what covering they had fell from them, in the shooting out of the cart, and they fell quite naked among the rest; but the matter was not much to them, or the indecency much to anyone else, seeing they were all dead, and were to be huddled together into the common grave of mankind, as we may call it, for here was no difference made, but poor and rich went together; there was no other way of burials, neither was it possible there should be, for coffins were not to be had for the prodigious numbers that fell in such a calamity as this. It was reported, by way of scandal upon the buriers, that if any corpse was delivered to them, decently wound up, as we called it then, in a winding sheet tied over the head and feet, which some did, and which was generally of good linen; I say, it was reported, that the buriers were so wicked as to strip them in the cart, and carry them quite naked to the ground: but, as I cannot credit anything so vile among Christians, and at a time so filled with terrors, as that was, I can only relate it, and leave it undetermined. THE GREAT FIRE OF LONDON (1666). +Source.+--_Pepys's Diary_ (Wheatley's edition, 5s.). Vol. v., pp. 392-403. _September 2, 1666._--Some of our mayds sitting up late last night to get things ready against our feast to-day, Jane called us up about three in the morning, to tell us of a great fire they saw in the City. So I rose and slipped on my night-gowne, and went to her window, and thought it to be on the backside of Marke-lane at the farthest; but, being unused to such fires as followed, I thought it to be far enough off; and so went to bed again and to sleep. About seven rose again to dress myself, and there looked out at the window, and saw the fire not so much as it was and further off. So to my closett to set things to rights after yesterday's cleaning. By and by Jane comes and tells me that she hears that above 300 houses have been burned down to-night by the fire we saw, and that it is now burning down all Fish-street by London Bridge. So I made myself ready presently, and walked to the Tower ...; and there I did see the houses at that end of the bridge all on fire, and an infinite great fire on this and the other side the end of the bridge; which, among other people, did trouble me for poor little Michell and our Sarah on the bridge. So down, with my heart full of trouble, to the Lieutenant of the Tower, who tells me it begun this morning in the King's baker's house in Pudding Lane, and that it hath burned St. Magnus's Church and most part of Fish-street already. So I down to the water-side, and there got a boat and through bridge, and there saw a lamentable fire. Poor Michell's house, as far as the Old Swan, already burned that way, and the fire running further, that in a very little time it got as far as the Steele-yard, while I was there. Everybody endeavouring to remove their goods, and flinging into the river or bringing them into lighters that lay off; poor people staying in their houses as long as till the very fire touched them, and then running into boats, or clambering from one pair of stairs by the water-side to another. And among other things, the poor pigeons, I perceive, were loth to leave their houses, but hovered about the windows and balconys till they burned their wings, and fell down. Having staid, and in an hour's time seen the fire rage every way, and nobody, to my sight, endeavouring to quench it, but to remove their goods, and leave all to the fire, and having seen it get as far as the Steele-yard, and the wind mighty high and driving it into the City; and everything, after so long a drought, proving combustible, even the very stones of the churches, and among other things, the poor steeple by which pretty Mrs. ---- lives, and whereof my old schoolfellow Elborough is parson, taken fire in the very top, and there burned till it fell down: to White Hall ... and there up to the King's closett in the Chappell, where people come about me, and I did give them an account dismayed them all, and word was carried in to the King. So I was called for, and did tell the King and the Duke of York what I saw, and that unless his Majesty did command houses to be pulled down nothing could stop the fire. They seemed much troubled, and the King commanded me to go to my Lord Mayor from him, and command him to spare no houses, but to pull down before the fire every way. The Duke of York bid me tell him that if he would have any more soldiers he shall; and so did my Lord Arlington afterwards, as a great secret. Here meeting with Captain Cocke, I in his coach, which he lent me, and Creed with me to Paul's, and there walked along Watling-street as well as I could, every creature coming away loaden with goods to save, and here and there sicke people carried away in beds. Extraordinary good goods carried in carts or on backs. At last met my Lord Mayor in Canning-street, like a man spent, with a handkercher about his neck. To the King's message he cried, like a fainting woman, "Lord, what can I do? I am spent: people will not obey me. I have been pulling down houses; but the fire overtakes us faster than we can do it." That he needed no more soldiers; and that, for himself, he must go and refresh himself, having been up all the night. So he left me, and I him, and walked home, seeing people all almost distracted, and no manner of means used to quench the fire. The houses, too, so very thick thereabouts, and full of matter for burning, as pitch and tar, in Thames-street; and warehouses of oyle, and wines, and brandy, and other things. Here I saw Mr. Isaake Houblon, the handsome man, prettily dressed and dirty, at his door at Dow-gate, receiving some of his brother's things, whose houses were on fire; and, as he says, have been removed twice already; and he doubts (as it soon proved) that they must be in a little time removed from his house also, which was a sad consideration. And to see the churches all filling with goods by people who themselves should have been quietly there at this time. By this time it was about twelve o'clock; and so home.... While at dinner Mrs. Batelier come to enquire after Mr. Woolfe and Stanes ... whose houses in Fish-street are all burned, and they in a sad condition. She would not stay in the fright. Soon as dined, I and Moone away, and walked through the City, the streets full of nothing but people and horses and carts loaden with goods, ready to run over one another, and removing goods from one burned house to another. They now removing out of Canning-street (which received goods in the morning) into Lumbard-street, and further; and among others I now saw my little goldsmith, Stokes, receiving some friend's goods, whose house itself was burned the day after. We parted at Paul's; he home, and I to Paul's Wharf, where I had appointed a boat to attend me, and took in Mr. Carcasse and his brother, whom I met in the streete, and carried them below and above bridge to ... see the fire, which was now got further, both below and above, and no likelihood of stopping it. Met with the King and Duke of York in their barge, and with them to Queenhithe, and there called Sir Richard Browne to them. Their order was only to pull down houses apace, and so below bridge at the water-side; but little was or could be done, the fire coming upon them so fast. Good hopes there were of stopping it at the Three Cranes above, and at Buttolph's Wharf below bridge, if care be used; but the wind carries it into the City, so as we know not by the water-side what it do there. River full of lighters and boats taking in goods, and good goods swimming in the water, and only I observed that hardly one lighter or boat in three that had the goods of a house in, but there was a pair of Virginalls[1] in it. Having seen as much as I could now, I away to White Hall by appointment, and there walked to St. James's Parke, and there met my wife and Creed and Wood and his wife and walked to my boat; and there upon the water again, and to the fire up and down, it still increasing, and the wind great. So near the fire as we could for smoke; and all over the Thames, with one's face in the wind, you were almost burned with a shower of fire drops. This is very true; so as houses were burned by these drops and flakes of fire, three or four, nay, five or six houses, one from another. When we could endure no more upon the water, we to a little ale-house on the Bankside, over against the Three Cranes, and there staid till it was dark almost, and saw the fire grow; and, as it grew darker, appeared more and more, and in corners and upon steeples, and between churches and houses, as far as we could see up the hill of the City, in a most horrid malicious bloody flame, not like the fine flame of an ordinary fire.... We staid till, it being darkish, we saw the fire as only one entire arch of fire from this to the other side the bridge, and in a bow up the hill for an arch of above a mile long: it made me weep to see it. The churches, houses, and all on fire and flaming at once; and a horrid noise the flames made, and the cracking of houses at their ruine. So home with a sad heart, and there find every body discoursing and lamenting the fire; and poor Tom Hater come with some few of his goods saved out of his house, which is burned upon Fish-streete Hill. I invited him to lie at my house, and did receive his goods, but was deceived in his lying there; so as we were forced to begin to pack up our owne goods, and prepare for their removal; and did by moonshine (it being brave dry, and moonshine, and warm weather) carry much of my goods into the garden, and Mr. Hater and I did remove my money and iron chests into my cellar, as thinking that the safest place. And got ready my bags of gold into my office, ready to carry away, and my chief papers of accounts also there, and my tallys into a box by themselves. So great was our fear, as Sir W. Batten hath carts come out of the country to fetch away his goods this night. We did put Mr. Hater, poor man, to bed a little; but he got but very little rest, so much noise being in my house, taking down of goods. _September 3._--About four o'clock in the morning, my Lady Batten sent me a cart to carry away all my money, and plate, and best things, to Sir W. Rider's at Bednall Green. Which I did, riding myself in my night-gowne in the cart; and, Lord! to see how the streets and highways are crowded with people running and riding, and getting of carts at any rate to fetch away things. I find Sir W. Rider tired with being called up all night, and receiving things from several friends. His house full of goods, and much of Sir W. Batten's and Sir W. Pen's. I am eased at my heart to have my treasure so well secured. Then home, with much ado to find a way, nor any sleep at all this night to me nor my poor wife. But then and all this day she and I, and all my people labouring to get away the rest of our things, and did get Mr. Tooker to get me a lighter to take them in, and we did carry them (myself some) over Tower Hill, which was by this time full of people's goods, bringing their goods thither; and down to the lighter, which lay at the next quay, above the Tower Docke. And here was my neighbour's wife, Mrs. ----, with her pretty child, and some few of her things, which I did willingly give way to be saved with mine; but there was no passing with anything through the postern, the crowd was so great. The Duke of York come this day by the office, and spoke to us, and did ride with his guard up and down the City to keep all quiet (he being now Generall, and having the care of all). _September 4._-- ... Now begins the practice of blowing up of houses in Tower-streete, those next the Tower, which at first did frighten people more than anything; but it stopped the fire where it was done, it bringing down the houses to the ground in the same places they stood, and then it was easy to quench what little fire was in it, though it kindled nothing almost. W. Hewer ... comes home late, telling us ... that the fire is got so far that way (_i.e._ to Islington), and all the Old Bayly, and was running down to Fleete-streete; and Paul's is burned, and all Cheap-side. I wrote to my father this night, but the post-house being burned, the letter could not go. _September 6._--Up at five o'clock, and there met Mr. Gawden at the gate of the office (I intending to go out, as I used, every now and then to-day, to see how the fire is) to call our men to Bishop's-gate, where no fire had yet been near, and there is now one broke out: which did give great grounds to people, and to me, too, to think that there is some kind of plot in this (on which many by this time have been taken, and it hath been dangerous for any stranger to walk in the streets), but I went with the men, and we did put it out in a little time; so that that was well again. _September 7._--Up by five o'clock; and, blessed be God! find all well; and by water to Paul's wharfe. Walked thence, and saw all the towne burned, and a miserable sight of Paul's Church, with all the roofs fallen, and the body of the quire fallen into St. Fayth's; Paul's school also, Ludgate, and Fleet-street, my father's house, and the church, and a good part of the Temple the like. [1] Virginall: a musical instrument. THE TRIPLE ALLIANCE (1668). +Source.+--_The Works of Sir William Temple: Letters._ Vol. ii., p. 70. I. That if any Prince, State, or other Person whatever, without Exception, shall under any Pretext, invade or attempt to invade the Territories, Countries, or any Places that lie within the Dominions of the said King of _Great Britain_, or shall exercise any Acts of Hostility by Sea or by Land, against the said King or His Subjects, the said _States General_ shall be obliged, as by Virtue of these Presents they are obliged, to send forty Ships of War, well furnish'd with all things necessary, to assist the said King, to oppose, suppress and repel, all such Insults and Acts of Hostility, and to procure him due Reparation for any Damages sustained: That is to say, fourteen of the said Ships shall carry from sixty to eighty great Guns, and four hundred Men, a just Allowance and Computation being made, as well with respect to those Ships that carry a greater, as those that carry a lesser Number of Men: Fourteen other Ships shall carry from forty to sixty Guns, and one with another, three hundred Men at the least, Allowance to be made as before; and none of the rest to carry less than six and thirty Guns, and a hundred and fifty Men. Besides which, they shall assist him with six thousand Foot Soldiers, and four hundred Horse, or shall pay a Sum of Money with due regard to the just Value of such an Assistance, either for the whole or part, at the Choice of the said King. All these Aids shall be furnish'd within six Weeks after they shall be demanded; and the said King shall reimburse the whole Charge to said States within three Years after the Conclusion of the War. II. That if any Prince, State, or other Person whatever, without Exception, shall under any Pretext, invade or attempt to invade the _United Provinces_, or any Places situated within the Jurisdiction of the said _States General_, or garrison'd by their Soldiers; or shall exercise any Act of Hostility by Land or by Sea, against the said _States General_ or their Subjects; the said King shall be obliged, as by Virtue of these Presents he is obliged, to send forty Ships of War well furnished with all things necessary, to assist the said _States General_, to oppose, suppress and repel, all such Insults and Acts of Hostility, and to procure due Reparation for any Damages sustained by them: That is to say, fourteen of the said Ships shall carry from sixty to eighty great Guns, and four hundred Men; a just Allowance and Computation being made, as well with regard to those Ships that carry a greater, as those that carry a lesser Number of Men: Fourteen other Ships shall carry from forty to sixty Guns, and one with another three hundred Men at the least; Allowance to be made as before; and none of the rest to carry less than six and thirty Guns, and a hundred and fifty Men. Besides which, he shall assist them with six thousand Foot Soldiers, and four hundred Horse; or shall pay a Sum of Money, with due regard to the just Value of such an Assistance, either for the whole or a part, at the Choice of the said States. All these Aids shall be furnished within six Weeks after they shall be demanded: And the said States shall reimburse the whole Charge to the said King, within three Years after the Conclusion of the War. III. The said Ships of War, and the said auxiliary Forces of Horse and Foot, together with the Commanders of the Ships and Forces, and all the subaltern officers of both, that shall be sent to the Assistance of the Party injured and attack'd, shall be obliged to submit to his Pleasure, and be obedient to the Orders of him or them, who shall be appointed to command the Armies in chief either by Sea or Land. IV. Now that an exact Computation may be made of the Charges that are to be reimburs'd within the space of three Years after the Conclusion of the War; and that the Value of such Assistance may be adjusted in ready Money, which possibly the Party attack'd may chuse, either for the whole or a part of the said Ships, Horse and Foot; 'tis thought expedient, that the fourteen Ships carrying from sixty to eighty Pieces of Cannon, should be valued at the Sum of eighteen thousand six hundred and sixty six Pounds Sterling, or of _English_ Money; the other fourteen which carry from forty to sixty Guns, at fourteen thousand Pounds Sterling; and the remaining twelve, at six thousand Pounds of the same Money: Six thousand Foot, at seven thousand five hundred Pounds Sterling; and four hundred Horse, at one thousand and forty Pounds, for one Month: The Money to be paid by the said King of _Great Britain_ at _London_, and by the _States General_ at _Amsterdam_, according as the Course of the Exchange shall be at the time when Payment is to be made. But in Consideration of the six thousand Foot Soldiers, the Sum of six thousand Pounds Sterling shall be paid within the first Month, to defray the Expence of listing and providing the Men. V. This League, with all and every thing therein contained, shall be confirmed and ratified by the said King of _Great Britain_, and the said _States General_ of the _United Provinces_, by Letters Patents of both Parties, sealed with their Great Seal in due and authentick Form, within four Weeks next ensuing, or sooner, if it may be; and the mutual Instruments of Ratification shall be exchanged on each part within the said time. CHARLES II.'S DECLARATION OF INDULGENCE AND THE TEST ACT (1672-73). +Source.+--_Journals of the House of Commons._ THE DECLARATION OF INDULGENCE. Our care and endeavours for the preservation of the rights and interests of the Church have been sufficiently manifested to the world by the whole course of our government since our happy restoration, and by the many and frequent ways of coercion that we have used for reducing all erring or dissenting persons, and for composing the unhappy differences in matters of religion which we found among our subjects upon our return. But, it being evident by the sad experience of twelve years that there is very little fruit of all those forcible courses, we think ourselves obliged to make use of that supreme power in ecclesiastical matters, which is not only inherent in us but hath been declared and recognized to be so by several statutes and acts of parliament. And therefore we do now accordingly issue out this our royal declaration, as well for the quieting the minds of our good subjects in these points, for inviting strangers in this conjunction to come and live under us, and for the better encouragement of all to a cheerful following of their trades and callings, from whence we hope, by the blessing of God, to have many good and happy advantages to our government; as also for preventing for the future the danger that might otherwise arise from private meetings and seditious conventicles. And in the first place, we declare our express resolution, meaning, and intention to be that the Church of England be preserved and remain entire in its doctrine, discipline, and government, as it now stands established by law; and that this be taken to be, as it is, the basis, rule, and standard of the general and public worship of God, and the orthodox conformable clergy do receive and enjoy the revenues belonging thereunto; and that no person, though of different opinion and persuasion, shall be exempt from paying his tithes, or other dues whatsoever. And further we declare that no person shall be capable of holding any benefice, living, or ecclesiastical dignity or preferment of any kind in this Kingdom of England, who is not exactly conformable. We do in the next place declare our will and pleasure to be that the execution of all and all manner of penal laws in matters ecclesiastical, against whatsoever sort of nonconformists or recusants, be immediately suspended, and they are hereby suspended. And all judges of assize and gaol-delivery sheriffs, justices of the peace, mayors, bailiffs, and other officers whatsoever, whether ecclesiastical or civil, are to take notice of it, and pay due obedience thereunto, and that there may be no pretence for any of our subjects to continue their illegal meetings and conventicles, we do declare that we shall from time to time allow a sufficient number of places, as shall be desired, in all parts of this our kingdom, for the use of such as do not conform to the Church of England, to meet and assemble in, in order to their public worship and devotion; which places shall be open and free to all persons. But to prevent such disorders and inconveniences as may happen by this our indulgence, if not duly regulated, and that they may be better protected by the civil magistrate, our express will and pleasure is that none of our subjects do presume to meet in any place, until such place be allowed, and the teacher of that congregation be approved by us. And lest any should apprehend that this our restriction should make our said allowance and approbation difficult to be obtained, we do further declare, that this our indulgence as to the allowance of public places of worship and approbation of teachers shall extend to all sorts of nonconformists and recusants, except the recusants of the Roman Catholic religion, to whom we shall no ways allow public places of worship, but only indulge them in their share in the common exemption from the executing the penal laws and the exercise of their worship in their private houses only. And if after this our clemency and indulgence any of our subjects shall presume to abuse this liberty and shall preach seditiously, or to the derogation of the doctrine, discipline or government of the established church, or shall meet in places not allowed by us, we do hereby give them warning and declare we will let them see we can be as severe to punish such offenders, when so justly provoked, as we are indulgent to truly tender consciences. PROTEST OF THE COMMONS AGAINST THE INDULGENCE. We your Majesty's most loyal and faithful subjects, the Commons assembled in Parliament do, in the first place, as in all duty bound, return your Majesty our most humble and hearty thanks for the many gracious promises and assurances which Your Majesty hath several times, during this present Parliament, given to us, that Your Majesty would secure and maintain unto us the true Reformed Protestant Religion, our Liberties, and Properties: Which most gracious assurances Your Majesty hath, out of your great Goodness, been pleased to renew unto us more particularly at the opening of this present session of Parliament. And further we crave leave humbly to represent: That we have, with all duty and expedition, taken into our consideration several parts of your Your Majesty's last speech to us, and withal the Declaration therein mentioned, for Indulgence to Dissenters, dated the Fifteenth of March last, and we find ourselves bound in duty to inform Your Majesty that penal statutes in matters ecclesiastical cannot be suspended but by Act of Parliament. We therefore, the ... House of Commons do most humbly beseech your Majesty that the said laws may have their free course until it shall be otherwise provided for by Act of Parliament. THE TEST ACT (1673). For preventing dangers which may happen from popish recusants and quieting the minds of his Majesty's good subjects:--Be it enacted That all and every person or persons, as well peers as commoners, that shall bear any office or offices military or civil, or shall receive any pay, salary, fee, or wages, by reason of any patent or grant from his Majesty, or shall have command or place of trust from or under his Majesty ... shall ... in public and open court ... take the several Oaths of Supremacy and Allegiance ... and shall also receive the Sacrament of the Lord's Supper according to the usage of the Church of England at or before the first day of August in the year of our Lord one thousand six hundred and seventy-three, in some parish church, upon some ... Sunday, immediately after divine service. And ... all persons ... that ... refuse to take the said oaths and sacrament ... shall be _ipso facto_ adjudged ... disabled in law to ... enjoy the said office or offices or any profit or advantage pertaining to them; and every such office ... is hereby adjudged void. And ... all persons ... that ... refuse to take the said oaths or ... sacrament ... and yet after such neglect or refusal shall execute any of the said offices ..., every such person ... shall forfeit the sum of five hundred pounds. And ... at the same time when the persons concerned in this act shall take the aforesaid Oaths of Supremacy and Allegiance, they shall likewise ... subscribe this declaration ... "I [name] do declare that I do believe that there is not any transubstantiation in the sacrament of the Lord's Supper, or in the elements of Bread and Wine, at or after the consecration thereof by any person whatsoever." COFFEE HOUSES (1673). +Source.+--Pamphlet: _The Character of a Coffee-House, with the Symptoms of a Town Wit_. Printed in the _Harleian Miscellany_. Vol. vi., pp. 465-468. A Coffee-House is a lay-conventicle, good-fellowship turned puritan, ill-husbandry in masquerade; whither people come after toping all day, to purchase, at the expense of their last penny, the repute of sober companions: a rota-room, that, like Noah's ark, receives animals of every sort, from the precise diminutive band, to the hectoring cravat and cuffs in folio; a nursery for training up the smaller fry of virtuosi in confident tattling, or a cabal of kittling criticks that have only learned to spit and mew; a mint of intelligence, that, to make each man his pennyworth, draws out into petty parcels, what the merchant receives in bullion. He, that comes often, saves two-pence a week in Gazettes, and has his news and his coffee for the same charge, as at a three-penny ordinary they give in broth to your chop of mutton; it is an exchange where haberdashers of political small-wares meet, and mutually abuse each other, and the publick, with bottomless stories, and headless notions; the rendezvous of idle pamphlets, and persons more idly employed to read them; a high court of justice, where every little fellow in a camlet[2] cloke takes upon him to transpose affairs both in church and state, to shew reasons against acts of parliament, and condemn the decrees of general councils. The room stinks of tobacco worse than hell of brimstone, and is as full of smoke as their heads that frequent it, whose humours are as various as those of Bedlam, and their discourse often times as heathenish and dull as their liquor; that liquor which, by its looks and taste, you may reasonably guess to be Pluto's diet-drink, that witches tipple out of dead-men's skulls, when they ratify to Belzebub their sacramental vows. This Stygian puddle-seller was formerly notorious for his ill-favoured cap, that aped a turbant; and, in conjunction with his antichristian face, made him appear perfect Turk. But of late his wife being grown acquainted with gallants, and the provocative virtue of chocolate, he finds a broad-brimmed hat more necessary. When he comes to fill you a dish, you may take him for Guy Faux with a dark lanthorn in his hand, for no sooner can you taste it, but it scalds your throat, as if you had swallowed the gunpowder-treason. Though he seem never so demure, you cannot properly call him pharisee, for he never washes either out or inside of his pots or dishes, till they be as black as an usurer's conscience; and then only scraping off the contracted soot, makes use of it, in the way of his trade, instead of coffee-powder: their taste and virtue being so near of kin, he dares defy the veriest coffee-critic to distinguish them. Though he be no great traveller, yet he is in continual motion, but it is only from the fire-side to the table; and his tongue goes infinitely faster than his feet, his grand study being readily to echo an answer to that threadbare question, "What news have you, Master?" Then with a grave whisper, yet such as all the room may hear it, he discovers some mysterious intrigue of state, told him last night by one that is barber to the taylor of a mighty great courtier's man: relating this with no less formality than a young preacher delivers his first sermon, a sudden hick-up surprises him, and he is forced twenty times to break the thread of his tale with such necessary parentheses, "Wife, sweep up those loose corns of tobacco, and see the liquor boil not over." He holds it as part of his creed, that the great Turk is a very good christian, and of the reformed church, because he drinks coffee; and swears that Pointings, for celebrating its virtues in doggerel, deserves to be poet-laureat: yet is it not only this hot hell-broth that he sells, for never was mountebank furnished with more variety of poisonous drugs, than he of liquors; tea and aromatick for the sweet-toothed gentleman, betony[3] and rosade[4] for the addle-headed customer, back-recruiting chocolate for the consumptive gallant, Herefordshire redstreak made of rotten apples at the Three Cranes, true Brunswick mum brewed at St. Catharine's, and ale in penny mugs, not so big as a taylor's thimble. As you have a hodge-podge of drinks, such too is your company; for each man seems a leveller, and ranks and files himself as he lists, without regard to degrees or order; so that often you may see a silly fop and a worshipful justice, a griping rook and a grave citizen, a worthy lawyer and an errant pickpocket, a reverend nonconformist and a canting mountebank, all blended together to compose an oglio[5] of impertinence. If any pragmatic, to shew himself witty or eloquent, begin to talk high, presently the further tables are abandoned; and all the rest flock round, like smaller birds, to admire the gravity of the madge-howlet. They listen to him awhile with their mouths, and let their pipes go out, and coffee grow cold, for pure zeal of attention; but, on the sudden, fall all a yelping at once with more noise, but not half so much harmony, as a pack of beagles on the full cry. To still this bawling, up starts Capt. All-man-sir, the man of mouth, with a face as blustering as that of Æolus and his four sons, in painting; and in a voice louder than the speaking trumpet, he begins you the story of a sea-fight: and though he never were further, by water, than the Bear-garden, or Cuckold's-haven, yet, having pirated the names of ships and captains, he persuades you himself was present, and performed miracles; that he waded knee-deep in blood on the upper deck, and never thought to serenade his mistress so pleasant as the bullets whistling; how he stopped a vice-admiral of the enemy's under full sail, till she was boarded, with his single arm, instead of grappling-irons; and puffed out, with his breath, a fire-ship that fell foul on them. All this he relates, sitting in a cloud of smoke, and belching so many common oaths to vouch it, you can scarcely guess whether the real engagement, or his romancing account of it, be the more dreadful. However, he concludes with railing at the conduct of some eminent officers (that, perhaps, he never saw,) and protests, had they taken his advice at the council of war, not a sail had escaped us. * * * * * Next, signior Poll takes up the cudgels, that speaks nothing but designs, projects, intrigues, and experiments.... All the councils of the German diet, the Romish conclave, and Turkish divan, are well known to him. He kens all the cabals of the court to a hair's breadth, and (more than a hundred of us do) which lady is not painted: you would take his mouth for a lembeck,[6] it distils words so niggardly, as if he was loth to enrich you with lies, of which he has yet more plenty than Fox, Stowe, and Hollingshed bound up together. He tells you of a plot to let the lions loose in the Tower, and then blow it up with white powder; of five hundred and fifty Jesuits all mounted on dromedaries, seen by moonshine on Hampstead-heath; and a terrible design hatched by the College of Doway,[7] to drain the narrow seas, and bring popery over dry shod: besides, he had a thousand inventions dancing in his brain-pan; an advice-boat on the stocks, that shall go to the East Indies and come back again in a fortnight; a trick to march under water, and bore holes through the Dutch ships' keels with augres, and sink them, as they ride at anchor; and a most excellent pursuit to catch sun-beams, for making the ladies new-fashioned towers, that poets may no more be damned for telling lies about their curls and tresses. [2] Camlet: a stuff originally made of silk and camel's hair, but later made of wool and silk. [3] Betony: a plant noted for its medicinal properties. [4] Rosade: a drink concocted from roses. [5] Oglio: a spiced hotch-potch. [6] Lembeck: apparatus for distilling. [7] Douai. A PARLIAMENTARY ELECTION, KING'S LYNN, NORFOLK, (1673). +Source.+--_The Lives of the Norths._ Vol. i., pp. 111-113. Bohn edition. When it was made known that his lordship [_i.e._, Francis North, who became Lord Keeper of the Great Seal] intended to stand for burgess, the magistrates intimated that they would serve him with their interest; and other encouragements he had: and before the writ came down he made the town a visit, and regaled the body with a very handsome treat which cost him above one hundred pounds; and they complimented him highly with assurances of all their interests, which they doubted not would be successful against any opposition, but they believed there would be none. He was made free, and had the thanks of the body for his favourable assistance in procuring them convoys, etc. So far was well: and when the writ was sent to the Sheriff of Norfolk, his lordship's engagements were such that he could not go down to the election himself but sent a young gentleman, his brother, to ride for him (as they call it), and Mr. Matthew Johnson, since clerk of the Parliament, for an economist of which there was need enough. The rule they observed was to take but one house and there to allow scope for all taps to run. Nor was there need of more, for, as had been foretold, there was no opposition, which was a disgust to the common people for they wanted a competition to make the money fly; and they said Hobson's choice was no choice. But all passed well, and the plenipos returned with their purchase, the return of the election, back to London. The Parliament met and at the very first the new members were attacked; for one stood up and recommended it to their modesty to withdraw while the state of their election was under debate; as they did and were soon dismembered by the vote of the house; as is more fully related in the Examen.[8] But thereupon the speaker's warrants went to the great seal and new writs issued. This caused his lordship to dispatch his plenipos once more on the like errand to his majesty's ancient borough of Lynn Regis. At first all things seemed fair; but the night before the election there was notice given that Sir Simon Taylor, a wealthy merchant of wine in that town, stood and had produced a butt of sherry, which butt of sherry was a potent adversary. All that night and next morning were spent in making dispositions for conduct of the interest and such matters as belong to a contested election. But the greatest difficulty was to put off the numerous suitors for houses to draw drink, of which every one made friends to insinuate in their favour as if the whole interest of the town depended upon it. But these gentlemen plenipos determined to take no other house but where they were, to let the quill as well as the tap run freely, which made an account of above three hundred pounds. After the election and poll closed, all the chiefs on both sides met to view the poll-books; and Sir Simon Taylor, being on his own knowledge of the people's names satisfied that the election was against him, called for the indenture and signed it with the rest. This was an act of generous integrity scarce ever heard of before or since, and is what I have on all occasions mentioned for his just honour, and it would be strange if I should leave it out here. And it is material also, for, when his lordship came into the house, being a very good advocate and generally well thought of, the party there styled of the country thought his sitting in the house might be an accession to the court interest of too much consequence to be let pass if it might be hindered; and accordingly they expected a petition (as almost of course) to come in against him, and an opportunity thereupon to try the experiment of heaving him out of the house: for at that time who would not prove a petition against a declared courtier? His lordship was generally acquainted and passed well with the gentlemen of all sides. But, in the house, none of the country party came near him or cared that he should speak with them. So it passed till the fourteenth day; and there was but fifteen days of liberty to petition. Then one of them ventured to welcome him into the house but asked if his election was not like to be questioned. "No," said he, "it cannot be for my adversary signed the return for me." Within an hour or two after, at least twenty more of the same interest came and saluted him as very well pleased with his company; as much as to say, "Since thou art chose, who would not have it so?" [8] North's Examen: a reply to Kennett's History. A BOGUS "KING'S SPEECH"[9] (1675). +Source.+--Airy's _Charles II._ P. 301. (Longmans Green & Co.) _April ye 13, 1675._ MY LORDS AND GENTLEMEN, I told you at our last meeting that the winter was the fittest time for business, and in truth I thought it so till my Lord Treasurer assured me that ye Spring is ye fittest time for salads and subsidies. I hope therefore this April will not prove so unnatural as not to afford plenty of both; some of you may perhaps think it dangerous to make me too rich, but do not fear it, I promise you faithfully (whatever you give) I will take care to want; and yet in that you may rely on me, I will never break it although in other things my word may be thought a slender authority. My Lords and Gentlemen, I can bear my own straights with patience, but My Lord Treasurer doth protest that the revenue as it now stands is too little for us both; one of us must pinch for it, if you do not help us out. I must speak freely to you, I am under incumbrances.... I have a pretty good estate, I must confess, but, Odd's fish, I have a charge on't. Here is my Lord Treasurer can tell you that all the moneys designed for the Summer's Guards must of necessity be applied for the next year's cradles and swaddling clothes; what then shall we do for ships? I only hint that to you, that's your business, not mine. I know by experience I can live without them. I lived twenty years abroad without ships and was never in better health in my life, but how well you can live without them you had best try. I leave it to yourselves to judge, and therefore only mention it; I do not intend to insist upon that. There is another thing which I must press more earnestly, which is this; it seems a good part of my revenue will fail in two or three years except you will please to continue it: now I have this to say for it, why did you give me so much except you resolved to give on as fast as I call for it? The nation hates you already for giving so much, I will hate you now if you do not give me more. So that your interest obliges you to stick to me or you will not have a friend left in England. On the other hand, if you continue the revenue as desired, I shall be able to perform those great things for your religion and liberty which I have long had in my thoughts but cannot effect it without this establishment: wherefore look to it, if you do not make me rich enough to undo you, it shall be at your doors; for my part I can with a clear conscience say I have done my best and shall leave the rest to my successors. But if I may gain your good opinion, the best way is to acquaint you what I have done to deserve it out of my royal care for your religion and property. For the first my late proclamation is the true picture of my mind. He that cannot (as in a glass) see my zeal for the Church of England doth not deserve any other satisfaction, for I declare him wilful, abominable and not good. You may perhaps cry, how comes this sudden change? To that I reply in a word, I am a changeling; that I think a full answer, but to convince men yet further that I mean as I say, there are these arguments--1st I tell you so and you know I never break my word. 2nd My Lord Treasurer says so and he never told lies in his life. 3rd My Lord Lauderdale will undertake for me, and I should be loth by any act of mine to forfeit the credit he has with you. If you desire more instances of my zeal, I have them for you; for example, I have converted all my natural sons from popery, (and I may say without vanity) it was more my work and much more peculiar to me than the getting of them. It would do your hearts good to hear how prettily little George can read already the Psalter; they are all fine children, God bless 'em, and so like me in their understandings. But (as I was saying) I have, to please you, given a pension to your favourite my Lord Lauderdale; not so much that I thought he wanted it, as I knew you would take it kindly. I have made Carwell a Duchess and married her sister to my Lord Pembroke. I have made Crewe Bishop of Durham. I have at my brother's request sent my Lord Inchiquin to settle the protestant religion at Tangier; and at the first word of my Lady Portsmouth I preferred Prideaux to be Bishop of Chichester. I do not know what factions men would have; but this I am sure of, that none of my predecessors did ever anything like this to gain the goodwill of their subjects. So much for religion. I must now acquaint you that by my Lord Treasurer's advice I have made a considerable retrenchment on my expenses in candles and charcoal, and do not intend to stick there, but, with your help, to look into the like embezelments of my dripping pans and kitching stuff, of which (by ye way) on my conscience neither my Lord Treasurer nor my Lord Lauderdale are guilty; but if you should find them dabbling in that business I tell you plainly I leave them to you, for I would not have the world think I am a man to be cheated. * * * * * MY LORDS AND GENTLEMEN, I would have you believe of me as you always found me; and I do solemnly profess that, whatever you give me, it shall be managed with the same thrift, conduct, and prudence and sincerity, that I have ever practised since my happy restoration. [9] Reprinted by kind permission of the publishers. HABEAS CORPUS ACT (1679). +Source.+--_Statutes of the Realm._ Vol. v., pp. 935-938. I. Whereas great delays have been used by sheriffs, gaolers, and other officers, to whose custody any of the King's subjects have been committed for criminal or supposed criminal matters, in making returns of writs of _Habeas Corpus_ to them directed, by standing out an _Alias_ and _Pluries Habeas Corpus_, and sometimes more, and by other shifts to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the King's subjects have been, and hereafter may be long detained in prison, in such cases where by law they are bailable, to their great charges and vexation:-- II. For the prevention whereof, and for the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters, Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present Parliament assembled, and by the authority thereof, that whensoever any person or persons shall bring any _Habeas Corpus_ directed unto any sheriff or sheriffs, gaoler, minister, or other person whatsoever, for any person in his or their custody, and the said writ shall be served upon the said officer, or left at the gaol or prison, with any of the officers, ... then the said officers ... shall within three days after the service thereof as aforesaid (unless the commitment aforesaid were for treason or felony, plainly or specially expressed in the warrant of commitment) upon payment or tender of the charges of bringing the said prisoner, to be ascertained by the judge or court that awarded the same, and indorsed upon the said writ, not exceeding twelvepence per mile, and upon security given by his own bond to pay the charges of carrying back the prisoner, if he shall be remanded by the court or judge to which he shall be brought according to the true intent of his present act, and that he will not make any escape by the way, make return of such writ; and bring or cause to be brought, the body of the person so committed or restrained, unto or before the Lord Chancellor, or Lord Keeper of the Great Seal of England for the time being, or the judges or barons of the said court from whence the said writ shall issue, or unto or before such other person or persons before whom the said writ is made returnable according to the command thereof; and shall then likewise certify the true causes of his detainer or imprisonment, unless the commitment of the said party be in any place beyond the distance of twenty miles from the place or places where such court or person is, or shall be, residing: and if beyond the distance of twenty miles, and not above one hundred miles, then within the space of ten days; and if beyond the distance of one hundred miles, then within the space of twenty days, after such delivery and not longer. III. And to the intent that no sheriff, gaoler, or other officer, may pretend ignorance of the import of any such writ, Be it enacted ... that all such writs shall be marked in this manner, _per statutum tricesimo primo Caroli secundi regis_, and shall be signed by the person that awards the same; and if any person or persons shall be or stand committed or detained as aforesaid, for any crime (except for felony or treason plainly expressed in the warrant of commitment), in the vacation time, and out of term, it shall ... be lawful ... for the person or persons so committed ... or any one on his or their behalf to appeal or complain to the Lord Chancellor, or Lord Keeper, or any one of his Majesty's justices, either of the one bench or of the other, or the barons of the Exchequer of the degree of the coif and the said Lord Chancellor, Lord Keeper, justices, or barons, or any of them ... are hereby ... required, upon request made in writing by such person or persons, or any or his, her or their behalf, attested and subscribed by two witnesses who were present at the delivery of the same, to ... grant a _Habeas Corpus_ ... to be directed to the officer ... in whose custody the party ... detained shall be; returnable immediate before the said Lord Chancellor, Lord Keeper [&c.]. And upon service thereof ..., the officer ... in whose custody the party is so ... detained, shall, within the times respectively before limited, bring such prisoner or prisoners before the said Lord Chancellor, or Lord Keeper, or such justices and barons, or one of them ... with ... the true cause of the commitment or detainer. And thereupon, within two days after the party shall be brought before them, the said Lord Chancellor, Lord Keeper [&c.] ... shall discharge the said prisoner from his imprisonment, taking his or their recognizance, with one or more surety or sureties, in any sum according to their discretions, having regard to the quality of the prisoner and nature of the offence, for his or their appearance in the Court of King's Bench the term following, or at the next assizes, sessions, or general gaol-delivery of and for such county, city, or place where the commitment was, or where the offence was committed ... unless it shall appear to the said Lord Chancellor, or Lord Keeper [&c.] ... that the party is detained upon a legal process, order, or warrant, out of some court that hath jurisdiction of criminal matters, or by some warrant signed and sealed with the hand and seal of any of the said justices or barons, or some justices or justices of the peace, for such matters or offences for the which by the law the prisoner is not bailable. V. And ... if any officer ... shall neglect or refuse ... to bring the body ... of the prisoner according to the command of the said writ, within the respective times aforesaid, or upon demand made by the prisoner or person in his behalf, shall refuse to deliver ... a true copy of the warrant ... of commitment ... of such prisoner, ... such person ... shall for the first offence forfeit to the prisoner ... the sum of one hundred pounds, and for the second offence the sum of two hundred pounds, and shall ... be made incapable to hold or execute his said office. VI. And ... no person or persons which shall be delivered or set at large upon any _Habeas Corpus_ shall at any time hereafter be again imprisoned or committed for the same offence ... other than by the legal order and process of such court wherein he or they shall be bound by recognizance to appear, or other court having jurisdiction of the cause. And if any other person or persons shall knowingly, contrary to this Act, recommit or imprison, for the same offence ... any person or persons delivered or set at large as aforesaid, ... then he or they shall forfeit to the prisoner ... the sum of five hundred pounds. VII. Provided always ... That if any person or persons shall be committed for high treason or felony, plainly and specially expressed in the warrant of commitment, upon his ... petition in open court the first week of term, or the first day of the sessions of _Oyer and Terminer_,[10] or general gaol-delivery, to be brought to his trial, shall not be indicted some time in the next term, sessions of _Oyer and Terminer_, or general gaol-delivery, after such commitment; it shall be lawful to and for the judges of the Court of King's Bench, and justices of _Oyer and Terminer_, or general gaol-delivery ... to set at liberty the prisoner upon bail, unless it appear to the judges and justices ... that the witnesses for the King could not be produced.... And if such person ... shall not be indicted and tried the second term, sessions of _Oyer and Terminer_, or general gaol-delivery, after his commitment, or upon his trial shall be acquitted, he shall be discharged from his imprisonment. VIII. Provided always That nothing in this act shall extend to discharge out of prison any person charged in debt, or other action, or with process in any civil cause, but that after he shall be discharged of his imprisonment for such his criminal offence, he shall be kept in custody according to the law, for such other suit. X. Provided always ... That it shall and may be lawful to and for any prisoner or prisoners as aforesaid to move and obtain his or their _Habeas Corpus_ as well out of the high court of chancery or court of exchequer, as out of the courts of king's bench or common pleas, or either of them; and if the said Lord Chancellor, or Lord Keeper, or any judge ... of any of the courts aforesaid, in the vacation time, upon view of the copy or copies of the warrant or warrants of commitment or detainer, or upon oath made that such copy or copies were denied as aforesaid, shall deny any writ of _Habeas Corpus_ by this act required to be granted, being moved for as aforesaid, they shall severally forfeit to the prisoner or party grieved the sum of five hundred pounds. XI. And be it ... enacted ... That an _Habeas Corpus_ ... may be directed and run into any county palatine, the cinque ports, or other privileged places within the kingdom of England, dominion of Wales, or town of Berwick-upon-Tweed, and the islands of Jersey or Guernsey, any law or usage to the contrary notwithstanding. XII. And for preventing illegal imprisonments ... beyond the seas, be it ... enacted ... That no subject of this realm that now is, or hereafter shall be an inhabitant or resident of this kingdom ... shall or may be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands, or places beyond the sea; and That every such imprisonment is hereby ... adjudged to be illegal. [10] A judicial commission to hear and determine cases of treason, felony, and misdemeanours. THE POPISH TERROR (1678-1681). +Source.+--Burnet's _History of His Own Times_. Pp. 156-164. Abridged edition, 1841. On Michaelmas-eve Oates was brought before the Council, and entertained them with a long relation of many discourses he had heard among the Jesuits, and of their design to kill the King. He named persons, places, and times, almost without number. He said many Jesuits had disguised themselves, and were gone into Scotland, and held field conventicles there to distract the Government; that he was sent to St. Omer's, thence to Paris, and from thence to Spain; that there was a great meeting at St. Clement's; and that the result of their consultation was a resolution to kill the King by shooting, stabbing or poisoning him, and that Coleman was privy to the whole design. This was the substance of what he declared the first day; whereupon many Jesuits were seized that night and next day, and their papers sealed up. There were many things in this declaration that made it look like an imposture. Oates did not know Coleman at first, but when he heard him speak in his own defence, he named him; he named Wakeman, the Queen's physician, though he did not know him at all; Langhorne who was the great manager for the Jesuits, he did not name; and when the King asked him what sort of man Don John (with whom he pretended to be intimate) was, he answered he was a tall, lean man, when the King knew him to be the very reverse. These were strong indications of a forgery. But what took away that suspicion was the contents of Coleman's letters, since by them it appeared that so many years ago the design of converting the nation and rooting out the northern heresy, as they called it, was so near its execution, since in them the Duke's great zeal was often mentioned with honour and many indecent reflections made on the King for his inconstancy and disposition to be brought to anything for money: and since by them their dependence was expressed to lie in the French King's assistance, and his expeditious conclusion of a general peace, as the only means that could finish their design. A few days after this, a very extraordinary thing happened, that contributed more and more to confirm the belief of this evidence. Sir Edmund Berry Godfrey was an eminent justice of peace who lived near Whitehall. He had stayed in London and had kept things in order in the time of the plague, which gained him great reputation and for which he was afterwards knighted. A zealous Protestant he was, and a true lover of the Church of England, but had kind thoughts of the nonconformists, was not forward to execute the laws against them, and to avoid doing that, was not apt to search for priests or mass-houses, so that few men of the like zeal lived on better terms with the Papists than he. Oates went to him the day before he appeared at the Council-board, and declared upon oath the narrative he intended to make, which Godfrey afterwards published a little imprudently, and was thereupon severely chid for seeming to distrust the Privy Council, and presuming to intermeddle in so tender a matter. On Saturday, October 12th, he went abroad in the morning, was seen about one o'clock near St. Clement's Church, but was seen no more till his body was found, on the Thursday night following, in a ditch about a mile out of town near St. Pancras Church. His sword was thrust through him, but no blood was on his clothes or about him; his shoes were clean, his money was in his pocket; a mark was all round his neck, which showed he was strangled; his breast was bruised; his neck was broken, and there were many drops of white wax-lights on his breeches, which being only used by priests and persons of quality, made people imagine in whose hands he had been. Oates's evidence was, by means of this murder, so far believed that it was not safe to seem to doubt of it; and when the Parliament met, he was called before the bar of the House of Commons, where he made a fresh discovery. He said that the Pope had declared England to be his kingdom, and accordingly had sent over commissions to make Lord Arundel of Wardour, Chancellor; Lord Powys, Treasurer; Sir William Godolphin, then in Spain, Privy Seal; Coleman, Secretary of State; Belasyse, General of the Army; Petre, Lieutenant-General; Ratcliffe, Major-General; Stafford, Paymaster-General; and Langhorne, Advocate-General; besides many other commissions for subaltern officers. And he now swore, upon his own knowledge, that both Coleman and Wakeman were in the plot; that Coleman had given eighty guineas to four ruffians to murder the King at Windsor; and that Wakeman had undertaken to poison him for £15,000; and he excused his not knowing them before by the fatigue and want of rest he had been under for two nights before, which made him not master of himself. There were great inconsistencies in all this. That one man should not know another that was a principal in a plot wherein he himself was concerned; that one man should have £15,000 for a safe way of dispatching, and four but twenty guineas apiece for doing it openly; that he should love the King so well as he then pretended, and yet suffer these ruffians to go down to kill him, without giving notice of the danger--these and some other incongruities in the pretended commissions (for Belasyse was perpetually gouty, Petre was no military man, and Ratcliffe lived chiefly in the north), were characters sufficient of a fictitious discovery, had not some other incidents concurred to give it a further confirmation. Bedloe, a man of a very vicious life, delivered himself to the magistrates of Bristol, pretending he knew the secret of Godfrey's murder, and accordingly was brought to London and examined by the Secretary. He said he had seen Godfrey's body at Somerset House, and was offered by Lord Belasyse's servant £4,000 to assist in carrying it away, whereupon he had gone out of town as far as Bristol, but was so pursued with horror that he could not forbear discovering it, but at the same time denied that he knew anything of the plot, till, on the next day, when he was brought to the bar of the House of Lords, he made a full discovery of it, confirming the chief points of Oates's evidence. While things were in this ferment at London, Carstairs came from Scotland to complain of Duke Lauderdale. He had brought up such witnesses as he always had by him to prove the thing,[11] and as he was looking about for a lucky piece of villainy, he chanced to go into an eating-house in Covent Garden, where one Staley, a Popish banker, was in the next room, and pretended that he heard him say in French that the King was a rogue, and persecuted the people of God, and that he himself would stab him if nobody else would. With these words he and one of his witnesses went to him next day, and threatened to swear them against him unless he would give them a sum of money. The poor man foresaw his danger, but he chose rather to leave himself to their malice than become their prey; so he was apprehended, and in five days brought to his trial. The witnesses gave full evidence against him to the purpose above mentioned, nor could he offer anything to invalidate their credit. All that he urged was, the improbability of his saying such dangerous words in a quarter of the town where almost everybody understood French; so he was cast, and prepared himself seriously for death, all along protesting that he knew of no plot, nor had ever said the words sworn against him, nor anything to that purpose. There was one accident now fell in that tended not a little to impair Oates's credit. He had declared before the House of Lords that he had then informed concerning all persons of any distinction that he knew to be engaged in the plot, and yet after that he deposed that the Queen had a great share in it, and was, in his hearing, consenting to the King's death. But his pretence for not accusing her before was so lame and frivolous that it would not satisfy people, though Bedloe, to support his evidence, swore things of the like nature. When Coleman was brought to his trial, Oates and Bedloe swore flatly against him what was mentioned before; and he, to invalidate their evidence, insisted on Oates's not knowing him when they were confronted; on his being in Warwickshire at the same time that Oates swore he was in town; and on the improbability of his transacting such dangerous matters with two such men as he had never seen before. His letters to Père la Chaise were the heaviest part of the evidence, and to these he did not deny but that he had intentions to bring in the Catholic religion, but only by a toleration, not by rebellion or blood, and that the aid he had requested from France for that purpose was meant only of the advance of some money and the interposition of that Court. After a long trial he was found guilty and sentence passed upon him to die as a traitor. He suffered with much composedness and devotion, and died much better than he lived, denying with his last breath every tittle of what the witnesses had sworn against him, though many were sent from both Houses, offering to interpose for his pardon if he would confess. The nation was now so much alarmed that all people were furnishing themselves with arms, and a bill passed both Houses for raising the militia, and for keeping it together for six weeks, but the King rejected it, though he gave his consent to the disbanding the army; wherein the Commons were so diffident of him that they ordered the money to be brought, not into the Exchequer, but into the Chamber of London, and appointed a committee of their own members for paying it off and disbanding it. The courts of justice in the meanwhile were not idle, for in December, Ireland the Jesuit, and Grove and Pickering, two servants in the Queen's Chapel, were brought to their trial. Oates and Bedloe swore home against Ireland that in August last he had given particular orders for killing the King; but he, in his defence, by many witnesses endeavoured to prove that on the 2nd of August he went into Staffordshire, and did not return till the 12th of September. Yet, in opposition to that a woman swore that she saw him in London about the middle of August; and so, because he might have come up post in one day and gone down in another, this did not satisfy. Against Grove and Pickering they swore that they undertook to kill the King at Windsor; that Grove was to have £1,500 for doing it, and Pickering thirty thousand masses, which at twelvepence a mass, amounts to the same money; that they attempted it three several times, but that once the flint was loose, at another time there was no powder in the pan, and at a third the pistol was only charged with bullets. This was strange stuff, but all was imputed to a Divine Providence. So the evidences were credited, and the prisoners condemned and executed, but they denied to the last every particular that was sworn against them. This began to shake the credit of the evidence, when a more composed and credible person came in to support it. One Dugdale, who had been bailiff to Lord Aston, and lived in a fair reputation in the country, when he was put in prison for refusing to take the oaths of allegiance and supremacy, denied absolutely that he knew anything of the plot, but made afterwards great discoveries. He said that the Jesuits in London had acquainted Evers, Lord Aston's Jesuit, with the design of killing the King, and desired him to find out proper men to execute it; that Evers and Gavan, another Jesuit, had pressed him to undertake it; that they had promised to canonise him for it, and Lord Aston offered him £500 if he would set about it. And one instance to confirm the truth of what he asserted was his speaking in a public company (as several testified) of Godfrey's death, the Tuesday after he was missing, which he swore he saw in a letter written by Harcourt to Evers, which letter must have been sent on the very night that Godfrey was killed. At the same time, a particular discovery was made of Godfrey's murder. Prance, a goldsmith that wrought for the Queen's Chapel, was seized upon suspicion; and as Bedloe was accidentally going by, knowing nothing of the matter, was challenged by him to be one of those whom he saw about Godfrey's body. Prance denied everything at first, but made afterwards this confession; that Gerald and Kelly, two priests, engaged him and three others in this wicked deed--Green, who belonged to the Queen's Chapel; Hill, who had served Godden, one of their famous writers; and Berry, the Porter of Somerset House; that they had several meetings wherein the priests persuaded them that it was a meritorious action to dispatch Godfrey, in order to deter others from being so busy against them; that the morning before they killed him Hill went to his house to see if he was yet gone out, and spoke to his maid; that they waited his coming out, and dogged him all day, till he came to a place near St. Clement's, where he stayed till night; that as Godfrey passed by Somerset House water-gate two of them pretending to quarrel, another ran out to call a justice, and with much importunity prevailed with him to come and pacify them; that as he was coming along Green got behind him and threw a twisted cravat about his neck, and so pulled him down and strangled him; and that Gerald would have run his sword through him, but was hindered by the rest lest the blood might discover them; that when the murder was done, they carried the body into Godden's room (for he was in France) and Hill had the key of it; that two days after they removed it into a room across the upper court, but that being thought not so convenient, they carried it back to Godden's lodging; that on Wednesday night they carried it out in a sedan, and when they had got clear of the town Green carried it on horseback to the place where it was found. This was a consistent story, which was supported in some circumstances by collateral proofs; and yet when he came before the King and Council he denied all he had sworn, and said it was a mere fiction; but when he was carried back to prison, he said all was true again, and that the horror and confusion he was in made him deny it. Thus he continued saying and unsaying for several times; but at last he persisted in his first attestation, and by this and what Bedloe brought in evidence against them, Green, Hill, and Berry were found guilty and condemned. Green and Hill died, as they had lived, Papists, and with solemn protestations denied the whole thing; but Berry declared himself a Protestant, though he had personated a Papist for bread, for which dissimulation he thought this judgment had befallen him. But he denied what was charged against him, and to the last minute declared himself altogether innocent; and his dying a Protestant and yet denying all that was sworn against him, was a triumph to the Papists, and gave them an opportunity to say that it was not the doctrine of equivocation, nor the power of absolution, but merely the force of conviction that made those of their religion do the same. The Lord Chief Justice at this time was Sir William Scroggs, a man more valued for a good readiness in speaking well than either learning in his profession or any moral virtue. His life had been indecently scandalous, and his fortune very low; and it was a melancholy thing to see so bad, so ignorant and so poor a man raised up to that high post. Yet now, seeing how the stream ran, he went into it with so much zeal and heartiness that he became the people's favourite and strove in all trials even with an indecent earnestness to get the prisoners convicted. But their resolute manner of dying and protestations of innocence to the last began to make impression on people's minds, and impair the credit both of the judge and witnesses, till one Jennison, the younger brother of a Jesuit, and a gentleman of family and estate, but now turned Protestant, came in, as it were, to their relief; for in contradiction to what Ireland died affirming, _i.e._ that he was in Staffordshire at the time that Oates swore he was in London, he wrote a letter to a friend attesting that he was in company with Ireland on the 19th of August, and had much familiar talk with him, so that his dying affirmations were false. The letter was printed, and this use was made of it to vacate the truth of those denials wherewith so many ended their lives. But what afterwards destroyed the credit of the letter was the solemn protestation that the author made, as he desired forgiveness of his sins and hoped for the salvation of his soul, that he knew nothing of the plot; and yet the summer after he published a long narrative, wherein he said that himself was invited to assist in the murder of the King, and named the four ruffians who went to Windsor to do it. While the witnesses were thus weakening their own credit, some practices were discovered that did very much support it. Reading, a lawyer of some subtlety, but no virtue, who was employed by the lords in the Tower to solicit their affairs, had offered Bedloe some money of his own accord (as it afterwards appeared) to mollify his evidence against the lords, and had drawn up a paper to show him by how small a variation in his depositions he might bring them off. But Bedloe was too cunning for him. He had acquainted Prince Rupert and the Earl of Essex with the whole negotiation, and placed two witnesses in his room, when he drew Reading into a renewal of the proposal so commodiously that the attempt of corruption was plainly proved upon him, and he was set in the pillory for it. Some that belonged to the Earl of Danby conversed much with Oates's servants, who told him that their master was daily speaking odious things against the King; and one of them affirmed that he had once made an abominable attempt upon him. But when Oates smelt this out, he soon turned the tables upon them; for he prevailed with his servants to deny all, and had the others set in the pillory as defamers of the King's evidence. And to bring things of the same sort all together, one Tashborough, who belonged to the Duke's Court, proposed to Dugdale, in the Duke's name, but without his authority, that he should sign a retraction of what he had sworn, and go beyond seas, and have a considerable reward for so doing. But the other outwitted him likewise, and proving such practices upon him, had him both fined and set in the pillory. [11] _I.e._, his case against Lauderdale. STAFFORD'S TRIAL (1680). +Source.+--Evelyn's _Diary_. Vol. ii., pp. 158-163. Bohn edition. _November 30._ The signal day begun the trial (at which I was present) of my Lord Vicount Stafford, for conspiring the death of the King; second son to my Lord Thomas Howard Earl of Arundel and Surrey, Earl Marshall of England, and grandfather to the present Duke of Norfolk, whom I so well knew, and from which excellent person I received so many favours. It was likewise his birthday. The trial was in Westminster-Hall, before the King, Lords, and Commons; just in the same manner as, forty years past, the great and wise Earl of Strafford (there being but one letter differing their names) received his trial for pretended ill government in Ireland, in the very same place, this Lord Stafford's father being then High-Steward. The place of sitting was now exalted some considerable height from the paved floor of the Hall, with a stage of boards. The throne, woolpacks for the Judges, long forms for the Peers, chair for the Lord Steward, exactly ranged, as in the House of Lords. The sides on both hands scaffolded to the very roof for the members of the House of Commons. At the upper end, and on the right side of the King's state, was a box for his Majesty, and on the left, others for the great ladies, and over head a gallery for ambassadors and public ministers. At the lower end, or entrance, was a bar, and place for the prisoner, the Lieutenant of the Tower of London, the axe-bearer and guards, my Lord Stafford's two daughters, the Marchioness of Winchester being one; there was likewise a box for my Lord to retire into. At the right hand, in another box, somewhat higher, stood the witnesses; at the left, the managers, in the name of the Commons of England, namely, Serjeant Maynard (the great lawyer, the same who prosecuted the cause against the Earl of Strafford forty years before, being now near eighty years of age), Sir William Jones, late Attorney-General, Sir Francis Winnington, a famous pleader, and Mr. Treby, now Recorder of London, not appearing in their gowns as lawyers, but in their cloaks and swords, as representing the Commons of England: to these were joined Mr. Hampden, Dr. Sacheverell, Mr. Poule, Colonel Titus, Sir Thomas Lee, all gentlemen of quality, and noted parliamentary men. The two first days, in which were read the commission and impeachment, were but a tedious entrance into matter of fact, at which I was but little present. But, on Thursday, I was commodiously seated amongst the Commons, when the witnesses were sworn and examined. The principal witnesses were Mr. Oates (who called himself Dr.), Mr. Dugdale, and Turberville. Oates swore that he delivered a commission to Viscount Stafford from the Pope, to be Paymaster-General to an army intended to be raised;--Dugdale [swore] that being at Lord Aston's, the prisoner dealt with him plainly to murder his Majesty; and Turberville, that at Paris he also proposed the same to him. _3rd December._ The depositions of my Lord's witnesses were taken, to invalidate the King's witnesses; they were very slight persons, but, being fifteen or sixteen, they took up all that day, and in truth they rather did my Lord injury than service. _4th._ Came other witnesses of the Commons to corroborate the King's, some being Peers, some Commons, with others of good quality, who took off all the former day's objections, and set the King's witnesses _recti in Curiâ_. _6th._ Sir William Jones summoned up the evidence; to him succeeded all the rest of the managers, and then Mr. Henry Poule made a vehement oration. After this my Lord, as on all occasions, and often during the trial, spoke in his own defence, denying the charge altogether, and that he had never seen Oates, or Turberville, at the time and manner affirmed; in truth, their testimony did little weigh with me; Dugdale's only seemed to press hardest, to which my Lord spake a great while, but confusedly, without any method. One thing my Lord said as to Oates, which I confess did exceedingly affect me: That a person who during his depositions should so vauntingly brag that though he went over to the church of Rome, yet he was never a Papist, nor of their religion, all the time that he seemed to apostatise from the Protestant, but only as a spy; though he confessed he took their sacrament, worshipped images, went through all their oaths, and discipline of their proselites, swearing secrecy and to be faithful, but with intent to come over again and betray them;--that such an hypocrite, that had so deeply prevaricated as even to turn idolator (for so we of the Church of England termed it), attesting God so solemnly that he was entirely theirs and devoted to their interest, and consequently (as he pretended) trusted;--I say, that the witness of such a profligate wretch should be admitted against the life of a peer,--this my Lord looked upon as a monstrous thing, and such as must needs redound to the dishonour of our religion and nation. And verily I am of his Lordship's opinion: such a man's testimony should not be taken against the life of a dog. But the merit of something material which he discovered against Coleman, put him in such esteem with the Parliament, that now, I fancy he stuck at nothing, and thought everybody was to take what he said for gospel. The consideration of this, and some other circumstances, began to stagger me; particularly how it was possible that one who went among the Papists on such a design, and pretended to be intrusted with so many letters and commissions from the Pope and the party, nay and delivered them to so many great persons, should not reserve one of them to show, nor so much as one copy of any commission, which he who had such dexterity in opening letters might certainly have done, to the undeniable conviction of those whom he accused; but, as I said, he gained credit on Coleman. But, as to others whom he so madly flew upon, I am little inclined to believe his testimony, he being so slight a person, so passionate, so ill-bred, and of such impudent behaviour; nor is it likely that such piercing politicians as the Jesuits should trust him with so high and so dangerous secrets. _7th December._ On Tuesday I was again at the trial, when judgment was demanded; and, after my Lord had spoken what he could in denying the fact, the managers answering the objections, the Peers adjourned to their House, and within two hours returned again. There was, in the meantime, this question put to the judges, "whether there being but one witness to any single crime, or act, it could amount to convict a man of treason." They gave an unanimous opinion that in case of treason they all were overt acts, for though no man should be condemned by one witness for any one act, yet for several acts to the same intent it was valid; which was my Lord's case. This being past, and the Peers in their seats again, the Lord Chancellor Finch (this day the Lord High-Steward) removing to the woolsack next his Majesty's state, after summoning the lieutenant of the tower to bring forth his prisoner, and proclamation made for silence, demanded of every peer (who were in all eighty-six) whether William, Lord Viscount Stafford, were guilty of the treason laid to his charge, or not guilty. Then the Peer spoken to, standing up, and laying his right hand upon his breast, said Guilty, or Not Guilty, upon my honour, and then sat down, the Lord Steward noting their suffrages as they answered upon a paper: when all had done, the number of Not guilty being but 31, the Guilty 55: and then, after proclamation for silence again, the Lord Steward directing his speech to the prisoner, against whom the axe was turned edgeways and not before, in aggravation of his crime, he being ennobled by the King's father, and since received many favours from his present Majesty: after enlarging on his offence, deploring first his own unhappiness that he who had never condemned any man before should now be necessitated to begin with him, he then pronounced sentence of death by hanging, drawing, and quartering, according to form, with great solemnity and dreadful gravity; and after a short pause, told the prisoner that he believed the Lords would intercede for the omission of some circumstances of his sentence, beheading only excepted; and then breaking his white staff, the Court was dissolved. My Lord Stafford during all this latter part spake but little, and only gave their Lordships thanks after the sentence was pronounced; and indeed behaved himself modestly, and as became him. It was observed that all his own relations of his name and family condemned him, except his nephew, the Earl of Arundel, son to the Duke of Norfolk. And it must be acknowledged that the whole trial was carried on with exceeding gravity: so stately and august appearance I had never seen before; for besides the innumerable spectators of gentlemen and foreign ministers, who saw and heard all the proceedings, the prisoner had the consciences of all the Commons of England for his accusers, and all the Peers to be his Judges and Jury. He had likewise the assistance of what counsel he would, to direct him in his plea, who stood by him. And yet I can hardly think that a person of his age and experience should engage men whom he never saw before (and one of them that came to visit him as a stranger at Paris) _point blank_ to murder the King: God only who searches hearts, can discover the truth. Lord Stafford was not a man beloved, especially of his own family. * * * * * _22nd._ A solemn public Fast that God would prevent all Popish plots, avert his judgments, and give a blessing to the proceedings of parliament now assembled, and which struck at the succession of the Duke of York. _29th._ The Viscount Stafford was beheaded on Tower-hill. CHARACTER OF SHAFTESBURY (1681). +Source.+--Dryden's _Absalom and Achitophel_. ... The false Achitophel[12] was ... A name to all succeeding ages curst. For close designs and crooked counsels fit, Sagacious, bold, and turbulent of wit, Restless, unfixed in principles and place, In power unpleased, impatient of disgrace; A fiery soul, which working out its way, Fretted the pigmy body to decay, And o'er-informed the tenement of clay. A daring pilot in extremity, Pleased with the danger, when the wave went high, He sought the storms; but, for a calm unfit, Would steer too nigh the sands to boast his wit. Great wits are sure to madness near allied, And thin partitions do their bounds divide. Else, why should he, with wealth and honour blest, Refuse his age the needful hours of rest? Punish a body which he could not please, Bankrupt of life, yet prodigal of ease? And all to leave what with his toil he won To that unfeathered two-legged thing, a son Got while his soul did huddled notions try, And born a shapeless lump, like anarchy. In friendship false, implacable in hate Resolved to ruin or to rule the State. To compass this the triple bond he broke, The pillars of the public safety shook, And fitted Israel[13] for a foreign yoke. Then, seized with fear, yet still affecting fame, Usurped a patriot's all atoning name. So easy still it proves in factious times With public zeal to cancel private crimes. How safe is treason and how sacred ill, Where none can sin against the people's will; Where none can wink and no offence be known, Since in another's guilt they find their own! Yet fame deserved no enemy can grudge: The statesman we abhor, but praise the judge. In Israel's courts ne'er sat an Abbethdin[14] With more discerning eyes or hands more clean, Unbribed, unsought, the wretched to redress, Swift of despatch and easy of access. Oh! had he been content to serve the Crown With virtues only proper to the gown, Or had the rankness of the soul been freed From cockle that oppressed the noble seed, David[15] for him his tuneful harp had strung And Heaven had wanted one immortal song. But, wild ambition loves to slide, not stand, And Fortune's ice prefers to Virtue's land. Achitophel, grown weary to possess A lawful fame and lazy happiness, Disdained the golden fruit to gather free And lent the crowd his arm to shake the tree. Now, manifest of crimes contrived long since, He stood at bold defiance with his Prince, Held up the buckler of the people's cause Against the Crown, and skulked behind the laws. The wished occasion of the Plot[16] he takes; Some circumstances finds, but more he makes; By buzzing emissaries fills the ears Of listening crowds with jealousies and fear Of arbitrary counsels brought to light, And proves the King himself a Jebusite.[17] Weak arguments! which yet he knew full well Were strong with people easy to rebel. For governed by the moon, the giddy Jews[18] Tread the same track when she the prime renews. And once in twenty years, their scribes record, By natural instinct they change their lord. Achitophel still wants a chief, and none Was found so fit as warlike Absalom.[19] Not that he wished his greatness to create, For politicians neither love nor hate: But, for he knew his title not allowed Would keep him still depending on the crowd: That kingly power, thus ebbing out, might be Drawn to the dregs of a democracy. Him he attempts with studied arts to please. [12] Shaftesbury. [13] England. [14] The President of the Jewish judicature. Shaftesbury had been made Lord Chancellor in 1672. [15] Charles II. [16] The Popish Plot. [17] A Roman Catholic. [18] The English people. [19] Monmouth, whom Shaftesbury proposed as Charles II.'s successor during the Exclusion controversy (1679-1681). JUDGE JEFFREYS--A CHARACTER SKETCH. +Source.+--North's _Lives of the Norths_. Vol. i., pp. 288-291. Bohn edition. "Noisy in nature. Turbulent at first setting out. Deserter in difficulties. Full of tricks. Helped by similar friendships. Honesty, law, policy, alike." This, to conclude, is the summary character of the Lord Chief Justice Jeffreys and needs no interpreter. And since nothing historical is amiss in a design like this, I will subjoin what I have personally noted of that man; and some things of indubitable report concerning him. His friendships and conversation lay among the good fellows and humorists; and his delights were accordingly, drinking, laughing, singing, kissing, and all the extravagances of the bottle. He had a set of banterers, for the most part, near him; as in old time men kept fools to make them merry. And these fellows abusing one another and their betters, were a regale to him. And no friendship or dearness could be so great in private which he would not use ill, and to an extravagant degree, in publick. No one that had any expectations from him was safe from his public contempt and derision which some of his minions at the bar bitterly felt. Those above or that could hurt or benefit him, and none else, might depend on fair quarter at his hands. When he was in temper and matters indifferent came before him, he became his seat of justice better than any other I ever saw in his place. He took a pleasure in mortifying fraudulent attorneys and would deal forth his severities with a sort of majesty. He had extraordinary natural abilities, but little acquired beyond that practice in affairs had supplied. He talked fluently and with spirit; and his weakness was that he could not reprehend without scolding; and in such Billingsgate language as should not come out of the mouth of any man. He called it "giving a lick with the rough side of his tongue." It was ordinary to hear him say, "Go, you are a filthy, lousy, nitty rascal;" with much more of like elegance. Scarce a day passed that he did not chide some one or other of the bar when he sat in the Chancery: and it was commonly a lecture of a quarter of an hour long. And they used to say, "This is yours; my turn will be to-morrow." He seemed to lay nothing of his business to heart nor care what he did or left undone; and spent in the Chancery court what time he thought fit to spare. Many times on days of causes at his house, the company have waited five hours in a morning, and after eleven, he hath come out inflamed and staring like one distracted. And that visage he put on when he animadverted on such as he took offence at, which made him a terror to real offenders; whom also he terrified, with his face and voice, as if the thunder of the day of judgement broke over their heads; and nothing ever made men tremble like his vocal inflictions. He loved to insult and was bold without check; but that only when his place was uppermost. To give an instance. A city attorney was petitioned against for some abuse; and affidavit was made that when he was told of my lord chancellor, "My lord chancellor," said he, "I made him;" meaning his being a means to bring him early into city business. When this affidavit was read, "Well," said the lord chancellor, "then I will lay my maker by the heels." And with that conceit one of his best old friends went to jail. One of these intemperances was fatal to him. There was a scrivener of Wapping brought to hearing for relief against a bummery bond[20]; the contingency of losing all being showed, the bill was going to be dismissed. But one of the plaintiff's counsel said that he was a strange fellow, and sometimes went to church, sometimes to conventicles; and none could tell what to make of him; and "it was thought he was a trimmer." At that the chancellor fired; and "A trimmer!" said he; "I have heard much of that monster, but never saw one. Come forth Mr. Trimmer, turn you round and let us see your shape:" and at that rate talked so long that the poor fellow was ready to drop under him; but at last, the bill was dismissed with costs, and he went his way. In the hall, one of his friends asked him how he came off? "Came off," said he, "I am escaped from the terrors of that man's face which I would scarce undergo again to save my life; and I shall certainly have the frightful impression of it as long as I live." Afterwards when the Prince of Orange came, and all was in confusion, this lord chancellor, being very obnoxious, disguised himself in order to go beyond sea. He was in a seaman's garb and drinking a pot in a cellar. This scrivener came into the cellar after some of his clients; and his eye caught that face which made him start; and the chancellor, seeing himself eyed, feigned a cough and turned to the wall with his pot in his hand. But Mr. Trimmer went out and gave notice that he was there; whereupon the mob flowed in and he was in extreme hazard of his life; but the lord mayor saved him and lost himself. For the chancellor being hurried with such crowd and noise before him, and so dismally not only disguised but disordered; and there having been an amity betwixt them, as also a veneration on the lord mayor's part, he had not spirits to sustain the shock but fell down in a swoon; and, in not many hours after, died. But this Lord Jeffries came to the seal without any concern at the weight of duty incumbent upon him; for at the first being merry over a bottle with some of his old friends, one of them told him that he would find the business heavy. "No," said he, "I'll make it light." But, to conclude with a strange inconsistency, he would drink and be merry, kiss and slaver, with these bon companions over night, as the way of such is, and the next day fall upon them ranting and scolding with a virulence insufferable. [20] A mortgage on a ship. THE TRIAL OF THE SEVEN BISHOPS (1688). +Source.+--Bishop Kennet's _Complete History_, vol. iii., pp. 484-486. 1706 edition. On June 15, came on the Bishop's Tryal, the most Important, perhaps, that was ever known before in Westminster-Hall; not only Seven Prelates Contending for the Rights of the _Anglican_ Church, but Seven Peers of the Realm Standing up for the Liberties of England. The Court of King's-Bench being Sat, His Majesty's Attorney-General mov'd for a _Habeas Corpus_, directed to Sir _Edward Hales_ Lieutenant of the _Tower_, to bring up His Grace the Lord Arch-Bishop of _Canterbury_, and the Six Bishops; which was granted, and the Prisoners were accordingly brought up by Water. At their Landing, they were receiv'd by several Divines, and Persons of Quality, and by a vast Concourse of People, who with repeated acclamations uttered wishes for their Deliverance. On the Bench sate Sir Robert Wright, Lord Chief-Justice, and Mr. Justice Holloway, two of the King's Creatures; Mr. Justice _Powell_ a Protestant of great Integrity, and Mr. Justice Allibone a profess'd Papist. The Councel for the King, was Sir _Thomas Powis_ Attorney-General, Sir William Williams Solicitor-General, Sir _Bartholomew Shower_ Recorder of _London_, Serjeant _Trinder_ a Papist, etc. And for the Prisoners, Sir _Robert Sawyer_, Mr. _Finch_, Mr. _Pollexfen_, Sir _George Treby_, Serjeant _Pemberton_, Serjeant _Levinz_, and the last and greatest, Mr. _Somers_. The Court was extremely fill'd, and with Persons of the Highest Quality, as if they interpos'd in the last Tryal for the Liberties of the Church and Nation; The Marquesses of _Hallifax_ and _Worcester_, the Earls of _Shrewsbury_, _Kent_, _Bedford_, _Dorset_, _Bullingbrooke_, _Manchester_, _Burlington_, _Carlisle_, _Danby_, _Radnor_ and _Nottingham_; Viscount _Falconberg_, and the Lords Grey of _Ruthyn_, _Paget_, _Shandois_, _Vaughan_, and _Carberry_. The Return and Warrant being read, the Attorney-General mov'd, That the Information might be read to the Prisoners, and that they might immediately Plead to it. This Motion the Bishops' Councel opposed; Objecting, First, that the Prisoners were Committed by the Lord Chancellor, and some other of the Privy Council, without expressing the Warrant, That it was by Order of the Privy-Council; and therefore, That the Commitment was Illegal, and that the Prisoners were not Legally in Court. And, Secondly, That the Fact for which they were Committed was such, as they ought not to have been Imprison'd for; because a Peer ought not to be Committed, in the first Instance, for a Misdemeanor. Judge _Powel_ refused to deliver his Opinion, before he had consulted Books: But the Lord Chief-Justice, Judge _Allibone_ and Judge _Holloway_ Agreed, That the Fact charg'd in the Warrant, was such a Misdemeanor, as was a Breach of the Peace; and therefore, That the Information ought to be read, and the Bishops must Plead to it. After the reading of the Information, the Bishops' Councel desir'd that they might have an Imparlance till the next Term, to consider what they had to Plead. Sir Samuel _Astry_, Clerk of the Crown, being ask'd what was the Course of the Court? Answer'd, that of late Years, if a Man appear'd upon a Recognizance, or was a Person in Custody, he ought to Plead at the first Instance; but that he had known it to be at the Discretion of the Court to grant what Line they pleas'd. After this Answer, the Lord Chief-Justice declar'd, That the Bishops should now Plead to the Information. Thereupon the Lord Arch-Bishop of _Canterbury_ offer'd a Plea in behalf of himself and his Brethren the other Defendants, alledging, _That they were Peers of this Kingdom of_ ENGLAND, _and Lords of Parliament, and ought not to be compell'd to Answer instantly, for the Misdemeanour mentioned in the Information; but that they ought to be requir'd to Appear by due Process of Law; and upon their Appearance, to have a Copy of the said Information, and reasonable Time given them to Imparle thereupon_. The King's Councel labour'd hard to have the Plea rejected. After a long Debate, Judge _Powel_ said, He was for receiving the Plea, and Considering of it; but the rest of the Judges declar'd for Rejecting of it: So the Prisoners at last Pleaded, _Not Guilty_. The King's Councel pray'd, the Clerk might join Issue on behalf of the King; and desir'd the Defendants to take Notice, That they intended to Try this Cause on that Day Fortnight; adding That they were Bailable, if they pleas'd. Sir _Robert Sawyer_ desir'd, that their own Recognizance might be taken; which was readily granted. On _June 29_ the Bishops Appear'd before the Court of _King's Bench_, according to their Recognizance, the Appearance being still greater than a Fortnight before; for there were now present the Marquesses of _Halifax_, and _Worcester_, the Earls of _Shrewsbury_, _Kent_, _Bedford_, _Pembroke_, _Dorset_, _Bullenbrooke_, _Manchester_, _Rivers_, _Stamford_, _Carnarven_, _Chesterfield_, _Scarsdale_, _Clarendon_, _Danby_, _Sussex_, _Radnor_, _Nottingham_ and _Abington_, Viscount _Falconberg_, and the Lords _Newport_, _Grey_ of _Ruthyn_, _Paget_, _Shandois_, _Vaughan_, _Carberry_, _Lumley_, _Carteret_ and _Ossulston_. This splendid Appearance was chiefly owing to the indefatigable Care and Solicitation of the Clergy, and especially of the Reverend Dr. _Tennison_. And indeed, the making such a Figure in the Court, had possibly some good Effect upon the Jury, if not upon the Bench: And it was afterwards observ'd by way of Jesting upon Words _That the Bishops were Deliver'd by the_ Nobilee _before, and the_ Mobilee _behind_. The Information being Read, and Open'd to the Jury; the Attorney-General, to take off the Odium of this Prosecution, and in some measure to pacify the People, who could not forbear showing their Resentments, even in the face of the Court, began with Observing, First, That the Bishops were not Prosecuted as Bishops, much less for any Point or Matter of Religion, but as Subjects of this Kingdom, and only for a Temporal Crime, as having censur'd and Affronted the King to his very Face. Secondly, That they were not Prosecuted for Omitting to do any thing; but as they were Actors in Accusing, and, in effect, of Arraigning His Majesty, and his Government &c. A great deal of Time was spent in Proving, that the Petition produc'd in Court, was the Hand writing of the Arch-Bishop of _Canterbury_; That it was Signed by him and the Six Bishops; And that it was the same which was Presented to His Majesty. After an Elaborate Proof of these Particulars, by the Depositions of Sir _John Nicholas_ ... and by the Earl of _Sunderland_, who in Court affirm'd, That he Introduced the Bishops, and was in the Room when they deliver'd the said _Petition_ to His Majesty. The Fact being Prov'd, the Bishop's Councel were very Learned and Eloquent in Defence of their Clients: Mr. _Somers_ spoke last, and mention'd the great Case of _Thomas_ and _Sorrel_ in the _Exchequer-Chamber_, upon the Validity of a _Dispensation_; urging, That there it was the Opinion of every one of the Judges, That there never could be an Abrogation, or a Suspension (which is a Temporary Abrogation) of an Act of Parliament, but by the Legislative Power: That indeed it was Disputed, how far the King might Dispense with the Penalties in such a particular Law, as to particular Persons; but it was Agreed by all, That the King had no Power to Suspend any Law: That by the Law of all Civiliz'd Nations, If the Prince does require something to be done, which the Person who is to do it takes to be Unlawful; it is not only Lawful, but his Duty, _Rescribere Principi_; which is all the Bishops had done here, and that in the most humble manner: That as to Matters of Fact alleg'd in the said _Petition_, there cou'd be no Design to Diminish the Prerogative, because the King had no such Prerogative: That the _Petition_ cou'd not be Seditious, because it was Presented to the King in Private, and Alone; Nor False, because the Matter of it was True; Nor Malicious, for the Occasion was not sought, the Thing was press'd upon them; Nor, in short, a Libel, because the Intent was Innocent, and they kept within the Bounds set by the Act of Parliament, that gives the Subject leave to apply to his Prince by Petition, when he is aggriev'd. When the Councel on both sides had done, Chief-Justice _Wright_ summ'd up the Evidence, and told the Jury, That Sometimes the _Dispensing Power_ had been allow'd, as in Richard IId's time, and sometimes deny'd; but that it was a Question out of the present Case; If they believ'd the Petition to be the same that was Presented by the Bishops to the King, then the Publication was sufficiently Prov'd: And whatever tended to Disturb the Government, or make a Stir among the People, was certainly within the Name of _Libellus Famosus_; and his opinion, in short, was, That the Bishops _Petition_ was a _Libel_. Mr. Justice _Holloway_ declar'd, That the End and Intention of every Action was to be Consider'd: That the Bishops were Charg'd with Delivering a _Petition_ which, according to their Defence, was done with all the Humility and Decency imaginable: That the Delivering of a _Petition_ could be no fault, it being the right of every Subject to _Petition_: Therefore, if the Jury were satisfy'd, They did it with no Ill Intention, but only to shew the Reasons for their Disobedience to the King's Command, he cou'd not think it to be a _Libel_. Mr. Justice _Powel_ more plainly declar'd, That He could discern no Sedition or any other Crime fixed upon the Bishops, since there was nothing offer'd by the King's Councel to render the _Petition_ False, Seditious or Malicious. He admonish'd the Jury to Consider that the Contents of the _Petition_ were, That the Bishops Apprehended the _Declaration to be Illegal, as being founded upon a_ Dispensing Power _claim'd by the King_; and that for his Part he did not remember in any Case in all the Law, that there was any such Power in the King, and if not, the _Petition_ could not be a Libel. He concluded with telling them, That he could see no Difference between the King's Power to _Dispense_ with the Laws Ecclesiastical, and his Power to Dispense with any Laws whatsoever: That if this was once allow'd of, there would be no need of Parliaments, and all the Legislature would be in the King, and so he left the Issue to God and their Consciences. Mr. Justice _Allibone_ was prepossess'd against Protestant Bishops, and to deliver his Opinion of their Guilt, he laid down Two odd Positions; 1. That no Man can take upon him to Write against the Actual Exercise of the Government, unless he have Leave from the Government, but he makes a Libel by what he Writes, whether True or False. 2. That no private Man can take upon him to Write concerning the Government; and therefore if he intrudes himself into the Affairs of the Publick, he is a Libeller for so doing. These Positions he back'd by a Resolution of the Judges of King James 1st's Time; _That to frame a_ Petition _to the King to put the Penal Laws in Execution, was next Door to Treason_; which is a gross Misquotation, instead of a Petition _against the Penal Laws_, and for which, being taken up by Justice _Powel_ and Serjeant _Pemberton_, little Heed was given to any thing he said afterwards. Whereupon the Jury withdrew, sat up all Night, and next Morning brought in the Reverend Prelates, _Not Guilty_. There were immediately very Loud Acclamations thro' _Westminster_-Hall, and the Words _Not Guilty_, _Not Guilty_, went round with such Shouts and Huzza's, that the King's Sollicitor mov'd very earnestly that such as had shouted in the Court might be Committed; whereupon a Gentleman of _Grey's-Inn_ was laid hold on, but soon discharged with this short Reproof from the Chief-Justice; "_Sir, I am as glad as you can be that Lords the Bishops are Acquitted but ... you might Rejoice in your Chamber ... and not here_." THE INVITATION TO THE PRINCE OF ORANGE (1688). +Source.+--Mackintosh: _History of the Revolution in England, in 1688_. London, 1834. Appendix III., p. 691. (Reprinted from MS. in British Museum.) We have great satisfaction to find, by 35, and since, by Mons. Zuylistein, that your Highness is so ready and willing to give us such assistance as they have related to us. We have great reason to believe we shall be every day in a worse condition than we are, and less able to defend ourselves, and, therefore, we do earnestly wish we might be so happy as to find a remedy before it be too late for us to contribute to our own deliverance; but, although these be our wishes, yet we will by no means put your Highness into any expectations which may misguide your own councils in this matter; so that the best advice we can give is, to inform your Highness truly both of the state of things here at this time, and of the difficulties which appear to us. As to the first, the people are so generally dissatisfied with the present conduct of the government in relation to their religion, liberties, and properties (all which have been greatly invaded); and they are in such expectations of their prospects being daily worse, that your Highness may be assured there are nineteen parts of twenty of the people throughout the kingdom who are desirous of a change; and who, we believe, would willingly contribute to it, if they had such a protection to countenance their rising, as would secure them from being destroyed, before they could get to be in a posture able to defend themselves: it is no less certain, that much the greatest part of the nobility and gentry are as much dissatisfied, although it be not safe to speak to many of them beforehand; and there is no doubt but that some of the most considerable of them would venture themselves with your Highness at your first landing, whose interest would be able to draw great numbers to them, whenever they could protect them, and the raising and drawing men together; and, if such a strength could be landed as were able to defend itself and them, till they could be got together into some order, we make no question but that strength would be quickly increased to a number double to the army here, although their army should remain firm to them; whereas we do, upon very good grounds, believe, that their army then would be very much divided among themselves; many of the officers being so discontented, that they continue in their service only for a subsistence (besides that some of their minds are known already): and very many of the common soldiers do daily show such an aversion to the Popish religion, that there is the greater probability imaginable of great numbers of deserters which would come from them, should there be such an occasion; and amongst the seamen, it is almost certain that there is not one in ten who would do them any service in such a war. Besides all this, we do much doubt whether this present state of things will not yet be much changed to the worse, before another year, by a great alteration, which will probably be made both in the officers and soldiers of the army, and by such other changes as are not only to be expected from a packed parliament, but what the meeting of any parliament, in our present circumstances, may produce against those who will be looked upon as principal obstructers of their proceedings there; it being taken for granted, that, if things cannot then be carried to their wishes in a parliamentary way, other measures will be put in execution by more violent means; and, although such proceedings will then heighten the discontent, yet such courses will, probably, be taken at that time, as will prevent all possible means of relieving ourselves. These considerations make us of opinion, that this is a season in which we may more probably contribute to our own safeties than hereafter (although we must own to your Highness there are some judgments differing from ours in this particular), in so much that, if the circumstances stand so with your Highness, that you believe you can get here time enough in a condition to give assistance this year sufficient for a relief under those circumstances which have been now represented, we who subscribe this will not fail to attend your Highness upon your landing, and to do all that lies in our power to prepare others to be in as much readiness as such an action is capable of, where there is so much danger in communicating an affair of such a nature, till it be near the time of its being made public. But, as we have already told your Highness, we must also lay our difficulties before your Highness; which are chiefly, that we know not what alarum your preparations for this expedition may give, or what notice it will be necessary for you to give the states beforehand, by either of which means their intelligence or suspicions here may be such as may cause us to be secured before your landing; and we must presume to inform your Highness, that your compliment upon the birth of the child (which not one in a thousand here believes to be the Queen's) hath done you some injury; the false imposing of that upon the Princess and the nation being not only an infinite exasperation of people's minds here, but being certainly one of the chief causes upon which the declaration of your entering the Kingdom in a hostile manner must be founded upon your part, although many other reasons are to be given on ours. If, upon a due consideration of all these circumstances, your Highness shall think fit to venture upon the attempt, or, at least, to make such preparations for it as are necessary (which we wish you may), there must be no more time in letting us know your resolution concerning it, and in what time we may depend that all the preparations will be ready; as also whether your Highness does believe the preparations can be so managed as not to give them warning here, both to make them increase their force, and to secure those they shall suspect would join with you. We need not say any thing about ammunition, artillery, mortar-pieces, spare arms, etc., because, if you think fit to put any thing in execution, you will provide enough of these kinds, and will take care to bring some good engineers with you; and we have desired Mr. H.[21] to consult you about all such matters, to whom we have communicated our thoughts in many particulars too tedious to have been written, and about which no certain resolutions can be taken till we have heard again from your Highness. 25 24 27 29 31 35 33 SH.[22] DEV.[23] DANBY LUMLEY LONDON[24] RUSSELL[25] SYDNEY[26] [21] Admiral Herbert. [22] Shrewsbury. [23] Devonshire. [24] Compton, Bishop of London. [25] Admiral Russell. [26] Henry Sidney. THE COMING OF WILLIAM OF ORANGE (1688). +Source.+--From Burnet's _History of His Own Times_, pp. 286-293. Abridged edition, 1841. Torbay was thought the best place for the fleet to lie in, and it was proposed to land the army as near as possible; but when it was perceived next morning, that we had overrun it, and had nowhere to go now but to Plymouth, where we could promise ourselves no favourable reception, the Admiral began to give up all for lost, till the wind abating, and turning to the south, with a soft and gentle gale carried the whole fleet into Torbay in the space of four hours. The foot immediately went on shore, the horse were next day landed, and the artillery and heavy baggage sent to Topsham, the seaport of Exeter, where the Prince intended to stay some time, both to refresh his men and to give the country an opportunity to declare its affections. When the Prince entered Exeter, the Bishop and Dean ran away, the clergy stood off, the magistrates were fearful, and it was full a week before any gentlemen of the country joined him, though they saw every day persons of condition coming in to him--among the first of whom was Lord Colchester, eldest son to the Earl of Rivers, Lord Wharton, Lord Abingdon, and Mr. Russell, Lord Russell's brother. Seymour was then Recorder of Exeter. He joined the Prince, with several other gentlemen of quality and estate, and gave the good advice of having an association signed by all who come in, as the only means to prevent desertion, and to secure them entirely to the Prince's party. The heads of the university of Oxford sent Dr. Finch, son to the Earl of Winchelsea, then made Warden of All Souls College, to assure the Prince that they would declare for him, inviting him at the same time to come to Oxford, and to accept of their plate if he needed it. A sudden turn from those principles which they carried so high not many years before! But all this was but a small accession. The King came down to Salisbury, and sent his troops twenty miles farther; whereupon the Prince, leaving Devonshire and Exeter under Seymour's government, with a small garrison and the heavy artillery under Colonel Gibson, who was made Deputy Governor as to the military part, advanced with his army; and understanding that some officers of note (Lord Cornbury, Colonel Langston, and others) designed to come over and bring their men with them, but that they could not depend on their subalterns, he ordered a body of his men to advance, and favour their revolt. The parties were within two miles of one another, when the whisper ran about that they were betrayed, which put them in such confusion that many rode back, though one whole regiment, and about a hundred besides, came over in a body, which gave great encouragement to the Prince's party, and (as it was managed by the flatterers) was made an instance to the King of his army's fidelity to him, since those who attempted to lead their regiments away were forced to do it by stratagem, which, as soon as they perceived, they deserted their leaders and came back. But all this would not pacify the King's uneasy mind. His spirits sank, his blood was in such a fermentation that it gushed out of his nose several times a day, and with this hurry of thought and dejection of mind all things about him began to put on a gloomy aspect. The spies that he sent out took his money, but never returned to bring him any information; so that he knew nothing but what common report told him, which magnified the number of his enemies, and made him believe the Prince was coming upon him before he had moved from Exeter. The city of London, he heard, was unquiet; the Earls of Devonshire and Danby and Lord Lumley were drawing great bodies of men in Yorkshire; the Lord Delamere had a regiment in Cheshire; York and Newcastle had declared for the Prince; and the bulk of the nation did so evidently discover their inclinations for him, that the King saw he had nothing to trust to but his army; and the army, he began to fear, was not to be relied on. In conclusion, when he heard that Lord Churchill and the Duke of Grafton (who was one of King Charles's sons by the Duchess of Cleveland), and the most gallant of all he had, were gone to the Prince, and soon after that Prince George, the Duke of Ormond, and the Lord Drumlanrig, eldest son to the Duke of Queensberry, had forsaken him, he was quite confounded, and not knowing whom to depend on any longer, or what further designs might be against him, he instantly went to London. The Princess Anne, when she heard of the King's return, was so struck with the apprehension of his displeasure, and what possibly might be the consequence of it, that she persuaded Lady Churchill to prevail with the Bishop of London to carry them both off. The Bishop, as it was agreed, received them about midnight at the back-stairs, and carried them to the Earl of Dorset's, where they were furnished with what they wanted, and so conducted them to Northampton, where that Earl soon provided a body of horse to serve the Princess as her guard; and not long after a small army was formed about her, which, according to their desire, was commanded by the Bishop of London. At this time there was a foolish ballad went about, treating the Papists, and chiefly the Irish, in a ridiculous manner, which made an impression on the army, and thence on the whole country, not to be imagined but by those who saw it; and a bold man adventured to publish in the Prince's name another Declaration, setting forth the desperate designs of the Papists, and the great danger the nation was in by their means, and requiring all persons to turn them out of their employments, to secure all strong places, and to do their utmost in order to execute the laws, and bring all things again into their proper channel. The paper was penned with a good spirit, though none ever claimed the merit of it, and no doubt being made but that it was published by the Prince's direction, it set everything to work, and put the rabble and apprentices to pulling down mass-houses and doing many irregular actions. When the King saw himself thus forsaken, not only by those whom he had trusted and favoured most, but even by his own children, the army in the last distraction, the country on every side revolting, and the city in an ungovernable fermentation, he called a general meeting of all the Privy Councillors and Peers in town to ask their advice and what was fit to be done. The general advice was that he should send commissioners to the Prince to treat with him, which, though sore against the King's inclination, the dejection he was in and the desperate state of his affairs made him consent to. The persons appointed were the Marquis of Halifax, the Earl of Nottingham, and the Lord Godolphin; and when they had waited on the Prince at Hungerford, desiring to know what it was that he demanded, after a day's consultation with those who were about him, he returned answer "that he desired a Parliament might be presently called, and no one continued in any employment who would not qualify himself according to law; that the Tower of London might be put in the keeping of the City, and the fleet and all strong places in the hands of Protestants; that the armies on both sides might not, while the Parliament was sitting, come within twenty miles of London; that a proportion of the revenue might be set apart for the payment of the Prince's army, and himself allowed to come to London with the same number of guards that the King had." These were the Prince's demands, which, when the King read, he owned more moderate than he expected; but before they came to his hands he had engaged himself in other resolutions. The priests and all violent Papists, who saw that a treaty with the Prince would not only ruin their whole design, but expose them as a mark and sacrifice to the malice of their enemies, persuaded the Queen that she would certainly be impeached, that witnesses would be set up against her and her son, and that nothing but violence could be expected. With these suggestions they wrought upon her fear so far, that she not only resolved to go to France herself, and take the child with her, but prevailed with the King likewise to follow her in a few days. The Queen went down to Portsmouth, and from thence in a man-of-war went over to France, taking along with her the midwife and those who were concerned in her son's birth, who not long after were all so disposed of that it never could be yet learned what became of them; and on the 10th of December, about three in the morning, the King went away in disguise with Sir Edward Hales, whose servant he pretended to be. They passed the river, throwing the Great Seal into it, which was afterwards found by a fisherman near Vauxhall, and in a miserable fisher-boat, which Hales had provided to carry them over to France, when, not having gone far, some fishermen of Feversham, who were watching for priests and such other delinquents as they fancied were making their escape, came up to them, and knowing Sir Edward Hales, took both the King and him, and brought them to Feversham. It was strange that a great King, who had a good army and a strong fleet, should choose rather to abandon all than either try his fate with that part of the army that stood firm to him, or stay and see the issue of Parliament. This was variously imputed to his want of courage, his consciousness of guilt, or the advice of those about him; but so it was that his deserting in this manner, and leaving them to be pillaged by an army that he had ordered to be disbanded without pay, was thought the forfeiture of his right, and the expiration of his reign; and with this notion I now proceed to relate what passed in the Interregnum (though under the same title still) until the throne, which was then left vacant, came to be filled. When it was noised about town that the King was gone, the apprentices and rabble, supposing the priests had persuaded him to it, broke out again with fresh fury upon all suspected houses, and did much havoc in many places. They met with Jeffreys as he was making his escape in disguise, and he being known by some of them, was insulted with all the scorn and rudeness that malice could invent, and after some hour's tossing about, was carried to the Lord Mayor to be committed to the Tower, which Lord Lucas had now seized, and in it declared for the Prince. The Lord Mayor was so struck with the terror of the rude populace, and with the disgrace of a man who had made all people tremble before him, that he fell into fits of which he died soon after; but to prevent all future disorders in the City, he called a meeting of the Privy Councillors and Peers at the Guildhall, who all agreed to send an invitation to the Prince, desiring him to come and take the government of the nation into his hands until a Parliament should meet and reduce all things to a proper settlement. The Prince was at Abingdon when the news of the King's desertion and the City's disorder met him, and upon this it was proposed that he should make all imaginable haste to London; but some were against it, because, though there had been but two small actions, one at Winkinton, in Dorsetshire, and the other at Reading, during the whole campaign, in neither of which the King's forces gave them much reason to dread them, yet there were so many of the disbanded soldiers scattered along the road, all the way to London, that it was thought unsafe for the Prince to advance faster than his troops could march before him, which delay was attended with very bad consequences. When the people of Feversham understood that it was the King they had in their custody, they changed their rough usage into all the respect they could possibly pay him. The country came in, and were moved with this astonishing instance of all worldly greatness, that he who had ruled three kingdoms, and might have been arbiter of all Europe, was now found in such mean hands, and in so low an equipage; and when the news was brought to London, all the indignation that was formerly conceived against him was turned into pity and compassion. The Privy Council upon this occasion met, and agreed to have the King sent for. The Earl of Feversham went with the coaches and guards to bring him back. In his passage through the City he was welcomed by great numbers with loud acclamations of joy, and at his coming to Whitehall had a numerous Court; but when he came to reflect on the state of his affairs, he found them in so ruinous a condition, that there was no possibility of making any stand; and therefore he sent the Earl of Feversham (but without demanding a pass) to Windsor, to desire the Prince to come to St. James's and consult with him the best means of settling the nation. The Prince had some reason to take this procedure of the Council amiss, after they had invited him to take the government into his own hands; and because the Earl of Feversham had commanded the army against him, and was now come without a passport, it was thought advisable to put him in arrest. The tender point was how to dispose of the King's person; and when some proposed rougher methods, such as keeping him in prison or sending him to Breda, at least until the nation was settled, the Prince would not consent to it; for he was for no violence or compulsion upon him, though he held it necessary for their mutual quiet and safety that he should remove from London. When this was resolved on, the Lords Halifax, Shrewsbury and Delamere were appointed to go and order the English guards to be drawn off, and sent into country quarters, while Count Solms with the Dutch was to come and take all the posts about Court. The thing was executed without resistance, but not without murmuring, and it was near midnight before all was settled, when the lords sent notice to the King that they had a message to deliver to him. They told him "the necessity of affairs required that the Prince should come presently to London, and they thought it would conduce both to the safety of the King's person and the quiet of the City to have him retire to some house out of town, and they named Ham; adding that he should be attended with a guard, but only to secure his person, and not give him any disturbance." When the lords had delivered their message they withdrew; but the King sent immediately after them to know if the Prince would permit him to go to Rochester. It was soon seen that the intent of this was to forward his escape, and therefore the Prince willingly consented to it; and as the King next day went out of town, the Prince came through the park privately to St. James's which disgusted many who had stood some time in the wet to see him. The next day all the bishops in town (except the Archbishop, who had once agreed to do it), the clergy of London, and the several companies of the City came to welcome him, and express a great deal of joy for the deliverance wrought by his means. As the Prince took notice of Serjeant Maynard's great age, and how he had outlived all the men of the law, he answered he had liked to have outlived the law itself, had not his Highness come over to their relief. When compliments were over, the first thing that came under consultation was how to settle the nation. The lawyers were of opinion that the Prince might declare himself King, as Henry VII. had done, and then call a Parliament, which would be a legal assembly; but their notion in this was so contrary to the Prince's Declaration, and so liable to give offence, that it could not be admitted. Upon this the Prince called together all the peers and members of the three late Parliaments that were in town, together with some of the citizens of London, desiring their advice in the present conjuncture. They agreed in an address to him that he would write missive letters round the nation, in such manner as the writs were issued out, for sending up representatives, and that in the meantime he would be pleased to take the administration of the government into his hands. While these things were carrying on in London, the King at Rochester was left in full liberty, and had all the respect paid to him that he could wish. Most of the Dutch guards that attended him happened to be Papists; and when he went to Mass they went with him, and joined very reverently in the devotion; whereupon, being asked how they could serve in an expedition that was intended to destroy their own religion, one of them answered briskly that his soul was God's, but his sword was the Prince of Orange's. The King continued there a week, and many who were zealous for his interest went to him, and desired him to stay and see the result. But while he was distracted between his own inclinations and his friends' importunities, a letter came from the Queen reminding him of his promise, and upbraiding him for not performing it, which determined his purpose; and on the last day of this memorable year he went from Rochester very secretly, and got safely into France, leaving a paper on his table, wherein he reproached the nation for forsaking him, and promised that, though he was going to seek for foreign aid to restore him to his throne, yet he would make no use of it either to overthrow the established religion or the laws of the land. THE BILL OF RIGHTS (1689). +Source.+--_Statutes of the Realm_. Vol. vi., pp. 142-145. Whereas the Lords Spiritual and Temporal, and Commons, assembled at Westminster, lawfully, fully, and freely representing all the estates of the people of this realm, did, upon the thirteenth day of February, in the year of our Lord one thousand six hundred eighty-eight, present unto their Majesties, then called and known by the names and style of William and Mary, Prince and Princess of Orange, being present in their proper persons, a certain declaration in writing, made by the said Lords and Commons, in the words following; viz.:-- Whereas the late King James II., by the assistance of diverse evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom:-- 1. By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament. 2. By committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concurring to the same assumed power. 3. By issuing and causing to be executed a commission under the Great Seal for erecting a court, called the Court of Commissioners for Ecclesiastical Causes. 4. By levying money for and to the use of the Crown, by pretence of prerogative, for other time, and in other manner than the same was granted by Parliament. 5. By raising and keeping a standing army within this kingdom in time of peace, without consent of Parliament, and quartering soldiers contrary to law. 6. By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law. 7. By violating the freedom of election of members to serve in Parliament. 8. By prosecutions in the Court of King's Bench, for matters and causes cognizable only in Parliament; and by diverse other arbitrary and illegal courses. 9. And whereas of late years, partial, corrupt, and unqualified persons have been returned and served on juries in trials, and particularly diverse jurors in trials for high treason, which were not freeholders. 10. And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. 11. And excessive fines have been imposed; and illegal and cruel punishments inflicted. 12. And several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons upon whom the same were to be levied. All which are utterly and directly contrary to the known laws and statutes, and freedom of this realm. And whereas the said late King James II. having abdicated the government, and the throne being thereby vacant, his Highness the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal, and diverse principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal, being Protestants, and other letters to the several counties, cities, universities, boroughs, and cinque ports, for the choosing of such persons as represent them, as were of right to be sent to Parliament, to meet and sit at Westminster upon the two-and-twentieth day of January, in this year one thousand six hundred eighty and eight, in order to such an establishment, as that their religion, laws and liberties might not again be in danger of being subverted; upon which letters, elections have been accordingly made. And thereupon the said Lords Spiritual and Temporal, and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representation of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done), for the vindicating and asserting their ancient rights and liberties, declare:-- 1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal. 2. That the pretended power of dispensing with laws, or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal. 3. That the commission for erecting the late Court of Commissioners for Ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious. 4. That levying money for or to the use of the Crown, by pretence of prerogative, without grant of parliament, for longer time or in other manner than the same is or shall be granted, is illegal. 5. That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal. 6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. 7. That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law. 8. That election of members of parliament ought to be free. 9. That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament. 10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishment inflicted. 11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders. 12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void. 13. And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently. And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties; and that no declarations, judgments, doings or proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequence or example. To which demand of their rights they are particularly encouraged by the declaration of his Highness the Prince of Orange, as being the only means for obtaining a full redress and remedy therein. Having therefore an entire confidence that his said Highness the Prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights, which they have here asserted, and from all other attempts upon their religion, rights, and liberties: II. The said Lords Spiritual and Temporal, and Commons, assembled at Westminster, do resolve, that William and Mary, Prince and Princess of Orange, be, and be declared, King and Queen of England, France, and Ireland, and the dominions thereunto belonging, to hold the Crown and royal dignity of the said kingdom and dominions to them the said Prince and Princess during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said Prince of Orange, in the names of the said Prince and Princess, during their joint lives; and after their deceases, the said Crown and royal dignity of the said kingdoms and dominions to be to the heirs of the body of the said Princess; and for default of such issue to the Princess Anne of Denmark, and the heirs of her body and for default of such issue to the heirs of the body of the said Prince of Orange. And the Lords Spiritual and Temporal, and Commons, do pray the said Prince and Princess to accept the same accordingly. III. And that the oaths hereafter mentioned be taken by all persons of whom the oaths of allegiance and supremacy might be required by law, instead of them; and that the said oaths of allegiance and supremacy be abrogated. I, A. B., do sincerely promise and swear, That I will be faithful and bear true allegiance to their Majesties King William and Queen Mary: So help me God. I, A. B., do swear, That I do from my heart, abhor, detest, and abjure as impious and heretical, that damnable doctrine and position, that Princes excommunicated or deprived by the Pope, or any authority of the See of Rome, may be deposed or murdered by their subjects, or any other whatsoever. And I do declare, that no foreign prince, person, prelate, state, or potentate hath, or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority ecclesiastical or spiritual, within this realm: So help me God. IV. Upon which their said Majesties did accept the Crown and royal dignity of the kingdoms of England, France, and Ireland, and the dominions thereunto belonging, according to the resolution and desire of the said Lords and Commons contained in the said declaration. V. And thereupon their Majesties were pleased, that the said Lords Spiritual and Temporal, and Commons, being the two Houses of Parliament, should continue to sit, and with their Majesties' royal concurrence make effectual provision for the settlement of the religion, laws, and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted; to which the said Lords Spiritual and Temporal, and Commons, did agree and proceed to act accordingly. VI. Now in pursuance of the premises, the said Lords Spiritual and Temporal, and Commons, in parliament assembled, for the ratifying, confirming, and establishing the said declaration, and the articles, clauses, matters, and things therein contained, by the force of a law made in due form by authority of parliament, do pray that it may be declared and enacted, That all and singular the rights and liberties asserted and claimed in the said declaration, are the true, ancient, and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed, and taken to be, and that all and every the particulars aforesaid shall be firmly and strictly holden and observed, as they are expressed in the said declaration; and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come. VII. And the said Lords Spiritual and Temporal, and Commons ... declare, that King James II. having abdicated the government, and their Majesties having accepted the Crown and royal dignity aforesaid, their said Majesties did become, were, are, and of right ought to be, by the laws of this realm, our sovereign liege Lord and Lady, King and Queen of England, France, and Ireland, and the dominions thereunto belonging.... VIII. And for preventing all questions and divisions in this realm, by reason of any pretended titles to the Crown, and for preserving a certainty in the succession thereof, in and upon which the unity, peace, tranquillity, and safety of this nation doth, under God, wholly consist and depend, the said Lords Spiritual and Temporal, and Commons, do beseech their Majesties that it may be enacted, established, and declared, that the Crown and regal government of the said kingdoms and dominions, with all and singular the premises thereunto belonging and appertaining, shall be and continue to their said Majesties, and the survivor of them, during their lives, and the life of the survivor of them. And that the entire, perfect, and full exercise of the regal power and government be only in, and executed by, his Majesty, in the names of both their Majesties during their joint lives; and after their deceases the said Crown and premises shall be and remain to the heirs of the body of her Majesty: and for default of such issue, to her Royal Highness the Princess Anne of Denmark, and the heirs of her body; and for default of such issue, to the heirs of the body of his said Majesty.... IX. And whereas it hath been found by experience, that it is inconsistent with the safety and welfare of this Protestant kingdom, to be governed by a Popish prince, or by any king or queen marrying a Papist, the said Lords Spiritual and Temporal, and Commons, do further pray that it may be enacted, That all and every person and persons that is, are, or shall be reconciled to, or shall hold communion with, the See or Church of Rome, or shall profess the Popish religion, or shall marry a Papist, shall be excluded, and be for ever incapable to inherit, possess, or enjoy the Crown and government of this realm, and Ireland, and the dominions thereunto belonging, or any part of the same, or to have, use, or exercise any regal power, authority, or jurisdiction within the same; and in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance; and the said Crown and Government shall from time to time descend to, and be enjoyed by, such persons or persons, being protestants, as should have inherited and enjoyed the same in case the said person or persons so reconciled, holding communion, or professing, or marrying as aforesaid, were naturally dead.... XII. And be it further declared and enacted by the authority aforesaid, That from and after this present session of parliament, no dispensation by _non obstante_ of or to any statute, or any part thereof, shall be allowed, but that the same shall be held void and of no effect, except a dispensation be allowed of in such statute, and except in such cases as shall be specially provided for by one or more bill or bills to be passed during this present session of parliament.... CORRESPONDENCE RELATING TO THE NON-JURORS (1691). +Source.+--_Letters between Ambrose Bonwicke and Richard Blechynden (Cambridge in the Days of Queen Anne_, by J. E. B. Mayor, pp. 217-221). _Aug. 11. Bonwicke to Blechynden_. I suppose ... that king _James_ had a right to my allegiance, and that secured by an oath; and unless he has given away this right or forfeited it, it is still in him. Now to me it does not appear that he has done either, therefore I dare not give it to another, which ... is the design of the new oaths.... I ought not to have entered into the obligation if I had not designed to have kept it. _Aug. 15. Blechynden to Bonwicke._ He that has no longer a right to the government has no longer a right to my allegiance.... King _James_ has shewn, that he neither has the qualifications for government, nor for this of the _English_.... A full possession of the power, especially when recognised by the grandees and main body of the people, gives him that has it a title to the obedience and fidelity (or, if you will, allegiance) of all within his territories; at least they are guilty of no sin that promise fidelity to him. _Aug. 20. Bonwicke to Blechynden._ I should be glad to find my friends and relations (whom I have so great a concern for) are in the right, and that it is prejudice in me has blinded me so long. Though I suppose it would be perjury in me to quit that oath that I still think obligatory, yet I have a very charitable opinion of those that have taken the new one, and suppose that conscience has been as much their guide in taking it, as it has been mine in refusing it.... I suppose a man may be dispossessed of a legal right no otherwise than by law.... I am to consider how I am to behave myself under a king, that has possession and not right. The execution of those laws that protect me are (_sic_) in his hands; I will give him all the obedience that is necessary for that purpose.... But to take an oath of allegiance to the king _de facto_, certainly cancels my oath of allegiance to the former.... If it were barely submitting to him in power, I suppose we should have no great dispute. _Aug. 25. Blechynden to Bonwicke._ Municipal laws are not the sole measure of right and wrong. There is a superior law of right reason, which respects the common good of mankind, which gave beginning to all civil societies.... You say treason against the king _de facto_ is not treason _de jure_; hereby you must mean according to equity and right reason; for treason against a king _de facto_ is the only treason by the law of the land, if _Coke_ and _Hales_[27] may be credited.... You call for a legal forfeiture; nothing else, say you, will forfeit a legal right to a crown. But if you please to consult the gentlemen that write politics, who surely are the best guides in this affair, you will find them assign a great many others.... The assemblies of the grandees and parliaments have near forty times either deposed their prince or waived the next of kin for the good of the community. _Aug. 31. Bonwicke to Blechynden._ Reason must be our best guide, and she has directed you to take the oaths, as she does me to refuse them. I consider on one side there is only a little temporal concern, and on the other the danger of perjury.... For what you urge, that therefore I ought to have no protection from king _William_, I must be contented; but I think it is the law that protects us both. At present it only deprives us of our livings, and that we must submit to. When the laws become more severe, we must shift as well as we can, and if we cannot live in this country, fly to another.... A whole nation can as ill dispense with their oaths as a single person. _Sept. 5. Bonwicke to Blechyenden._ I do really take those laws which have been made since king _William's_ coming to the crown to be good laws.... King _James_ has lost thus much by losing possession: he has lost the assistance of his people, for it would be treason and illegal to fight against king _William_, who has now the law on his side. _Sept. 8. Blechynden to Bonwicke._ The defence of the society being the sole ground (and measure too) of our obedience and fidelity to our chief governor, it is plain that it is due to him, and to him only, that can and does defend society.... If you will rightly weigh the matter, it is not only a little temporal concern that pleads for your taking oaths. For (pardon my plain dealing) you are chargeable with disobedience to the powers that be, with depriving your country (for which we are all in a great measure made) of the good you may do in your present station, or in the ministry; and with the making or strengthening a party against the public establishment, to the great prejudice of church and state; besides the injury to yourself and family, which an honest man ought not to prejudice but upon very good grounds. All this, I say, you are chargeable with, if the taking the oaths be not manifestly sinful. For the danger or fear of its being so is not sufficient to justify the neglect of any duty, and an opposition to a public establishment and the benefits of it. Reason will prefer the good of the community before that of a single man, especially of one already very false to his trust.... It is not plain that I am sworn to king _James_; the oath in an equitable interpretation not reaching the present case; nor has king _James_ any reason to insist on it as the present circumstances are; nor ought you to oblige me by my oath to hurt my neighbours, or my country, how rigorous soever I might be otherwise to myself. There is a great deal of difference between a private oath relating to my own concerns of which I am master; and a public, which was made for the good of the public, and therefore ought in no wise to be strained to the prejudice of the same.... The affection that men are bred up with towards the memory of king _Charles_ the first, and the abhorrence of the parliament of 1641, does extremely prejudice men for kings and against parliament; but both extremes are to be carefully shunned. [27] Coke and Hales were amongst the most eminent of Stuart lawyers. PACIFICATION OF THE HIGHLANDS (1692). +Source.+--_Calendar of State Papers, Domestic Series, 1691-92_: [Pp. 101, 102.] _Jan. 16, 1692._--Instructions, signed by the King, for Sir Thomas Levingston:-- We allow you to receive the submissions of Glengarry, or those with him, upon their taking the oath of allegiance and delivering up the house of Invergarry; to be safe, as to their lives, but as to their estates they must depend upon our mercy. In case you find the house of Invergarry cannot probably be taken in this season of the year, with the artillery and other provisions that you can bring there, we leave it to your discretion to give Glengarry the assurance of an entire indemnity for life and fortune, upon the delivery of his house and arms, and taking the oath of allegiance. In this you are allowed to act as you find the circumstances of the affair requires. But it were much better that these who have not taken the benefit of our indemnity, in the terms and with the "dyet" prefixed by our proclamation, should be obliged to "render" upon mercy; and the taking of the oath of allegiance is indispensable, others having already taken it. "If McKean of Glencoe and that tribe can be well separated from the rest, it will be a proper vindication of the public justice to extirpate that set of thieves." The "double of these instructions are only communicated to Col. Hill." [Pp. 153, 154.] _Feb. 28, 1692. Colonel Hill to the Earl of Portland._ My last gave you an account of the houses of Invergarry and Island Donan being in my possession for the King, and of the ruin of Glencoe, the latter named of which houses, I presume, were better destroyed than kept, for it is situated in such a place that it is hard to relieve it in winter, or at any time well, but by sea; it cannot contain a force to awe those countries in case they should again prove rebellious, and whilst my Lord Seaforth is come in, there is no doubt but his people may be kept quiet, and young Sir Donald McDonald is "a peaceable inclined man," and his relations in Skye mostly protestants, so there is no fear from thence, and that house will be but a charge to little other purpose, as is fit to be blown up. Those men of Glencoe that (by help of the storm) escaped, would submit to mercy if their lives may be granted them, upon giving security to live peaceably under the government, and not to rob, steal, or receive stolen goods hereafter, and I humbly conceive (since there are enough killed for an example and to vindicate public justice) it were advisable so to receive them, since it will be troublesome to take them, the Highlanders being generally allied one to another, and they may join with other broken men, and be hurtful to the country. Nevertheless, in the meantime, it were necessary that the proclamation against them ... were issued out. At the present they (the men of Glencoe) lie dormant in caves and remote places. The people now all seem resolved on settlement, and cry out for a jurisdiction among them (and the country will never be right till it be so) they flock in daily to submit to the King's mercy. Appin is a much changed man for the better, professes to everyone he meets his sincerity in keeping the oath of allegiance, and all those people of Appin have good inclinations to quiet, being many of them intelligent men, of whom I doubt not to make very good subjects. The Laird is a "pretty young man" of about 21 years, and had taken the oath before the day, but that he was tied to his bed by sickness at that time, and was carried in a boat to me, to do it, sooner than he was well able. It were meet that some things were left to the discretion of whoever commands in so remote a place as this, otherwise sometimes advantages are lost before orders can be obtained, and then (for want of true intelligence of matters) the orders may happen to be wrongly conceived, and when I was here before, the whole was left to me, and it succeeded well. The more authority any(one) has here, the more the people observe to obey. * * * * * The captain of Clanronald, "who is one of the prettiest handsome youths I have seen," came in and brought all the chief of his friends, and made his submission and took the oath with the greatest frankness imaginable, as did also all his friends; he has gone to his uncle, the Laird of McLeod, to settle his affairs and to get up some money; he then resolves to wait on the King and Queen, and if he overtake the King at London, he will beg his favour that he may attend him into Flanders. If the King be gone, ere he reach London, he resolves to follow him, and to be wholly governed by the King's pleasure; only he prays he may be so disposed of as to better his education. It will be an act of great charity to "breed" him. I have sent to McNeil of Bara (a remote island) who I doubt not will come in as the rest; so all the work is now done but the settlement of a civil jurisdiction. THE TREASONS ACT (1696). +Source.+--_Statutes of the Realm._ Vol. vii., pp. 6, 7. Whereas nothing is more just and reasonable than that persons prosecuted for High Treason, and Misprision of Treason, whereby the Liberties, Lives, Honour, Estates, Blood, and Posterity of the Subject may be lost and destroyed, should be justly and equally tried and that persons accused as offenders therein should not be debarred of all just and equal means for defence of their innocencies in such cases; in order thereunto and for the better regulation of trials of persons prosecuted for High Treason and Misprision of such Treason, Be it enacted That ... all and every person or persons whatsoever that shall be accused and indicted for High Treason ... shall have a true copy of the whole indictment, but not the names of the witnesses, delivered unto them or any of them five days at the least before he or they shall be tried for the same, whereby to enable them, or any of them, respectively to advise with Counsel thereupon to plead and make their defence.... And that every person so accused and indicted, arraigned, or tried for Treason ... shall be ... admitted to make his and their full defence by Counsel learned in the Law and to make any proof that he or they can produce by lawful witness or witnesses who shall then be upon oath for his or their just defence in that behalf; and in case any person or persons so accused or indicted shall desire Counsel, the Court before whom such person or persons shall be tried, or some judge of that Court ... is hereby authorized and required immediately upon his or their request to assign to such person or persons such and so many Counsel, not exceeding two ... and such Counsel shall have free access at all seasonable hours. And be it enacted That ... no person ... shall be indicted, tried, or attainted of High Treason ... but by and upon the oaths and testimony of two lawful witnesses, either both of them to the same overt act, or one of them to one and another of them to another overt act of the same Treason, unless the party indicted ... shall willingly, without violence and in open Court, confess the same, or shall stand mute, or refuse to plead. And be it further enacted That if two or more distinct Treasons of diverse heads or kinds shall be alleged in one bill of indictment, one witness produced to prove one of the said Treasons, and another witness produced to prove another of the said Treasons, shall not be deemed or taken to be two witnesses to the same Treason. And ... be it further enacted ... That ... no person or persons whatsoever shall be indicted, tried, or prosecuted for ... Treason ... unless the same indictment be found by a Grand Jury within three years next after the Treason or offence was done and committed. And ... all and every person or persons who shall be accused, indicted or tried for Treason ... shall have copies of the panel of jurors who are to try them duly ... delivered unto them ... two days at the least before he or they shall be tried; and all persons so accused and indicted for Treason ... shall have the like Process of the Court, where they shall be tried, to compel their witnesses to appear for them at any such Trial or Trials. And be it further enacted. That no evidence shall be admitted or given of any overt act that is not expressly laid in the indictment against any person. And be it further enacted That upon the Trial of any Peer or Peeress either for Treason or Misprision all the Peers who have a right to sit and vote in Parliament shall be duly summoned twenty days at the least before every such Trial; and that every Peer so summoned and appearing at such Trial shall vote in the Trial. THE COLONIAL POST (1699). +Source.+--_Calendar of Treasury Papers_, 1697-1701-02, pp. 289-290. Report of Sir R. Cotton, Knt., and Sir Tho. Frankland, postmasters, addressed to the Lords of the Treasury, on the memorials of Thomas Neale and Andrew Hamilton, Esqrs., stating that the latter had established a regular post to pass weekly from Boston to "New York in New England," and from New York to Newcastle in Pennsylvania, that the profits had every year increased so as to defray all charges except his salary; that the Attorney and Solicitor-General were of opinion the King could settle the rates for letters carried beyond sea &c.; advising the appointment of an officer to take charge of all the letters directed to the plantations, and send them in sealed bags, to be delivered to the deputy-postmaster in the first port where the ship should arrive, the master receiving a penny for each letter under his care, and upon such officers being established, a public notice should be given that no other person presume to make any collection of letters for those parts; they were of opinion that the rate for inland letters proposed by Mr. Hamilton was too high, "it having been found by experience in the office here, that the easy and cheap corresponding doth encourage people to write letters, and that this revenue was but little in proportion to what it now is till the postage of letters was reduced from six pence to three pence;" it would require £1,200 further charge than that already expended, to enlarge the post through Virginia and Maryland, etc. Dated 27 April, 1699. Accompanied by:-- "A calculation what charge will carry the post from Newcastle in Pennsylvania to James' City in Virginia about 400 miles." The memorial of Thomas Neale, Esq.: Also another memorial from him, showing that he had deputed Andrew Hamilton, Esq., to erect post offices, who had at the said Thomas Neale's charge, settled them 700 miles in length on the continent of America, the accounts for which were then laid before their Lordships; also that the deputy-post-master had come over to afford information, and proposed the method contained in the enclosed memorial to support the post. The said memorial of Andrew Hamilton, setting out the good effects of the Post Office, and suggesting various improvements: He states:--"The method at present used to get letters transported to America is this: the masters bound thither, put up bags in coffee houses, wherein the letters are put, and for which one penny per letter is usually paid, and two pence if it exceed a single letter. This is liable to several abuses. First, any one under pretence that he wants to have his letters up again, may come to those bags and take out other men's letters, and thereby discover the secrets of the merchants; and 'tis in their power entirely to withdraw 'em. 2^ndly Several masters, upon their arrival, often keep up letters till they have disposed of their loading and are ready to sail again, and then drop them to the great hurt of those concerned, which inconveniences would be prevented, if letters were delivered from the Post Office in mails, and likewise delivered by them in mails into the Post Office where they arrive," etc. ACT OF SETTLEMENT (1701). +Source.+--_Statutes of the Realm._ Vol. vii., pp. 636-638. After reciting the Bill of Rights and declaring the succession vested in the most Excellent Princess Sophia, and the heirs of her body, being Protestants (in case of default of heirs to Anne), the Act of Settlement lays down:-- I. That whosoever shall hereafter come to the possession of this Crown shall join in communion with the Church of England, as by law established. II. That in case the Crown and imperial dignity of this realm shall hereafter come to any person, not being a native of this kingdom of England, this nation be not obliged to engage in any war for the defence of any dominions or territories which do not belong to the Crown of England, without the consent of Parliament. III. That no person who shall hereafter come to the possession of this Crown shall go out of the dominions of England, Scotland, or Ireland, without consent of Parliament. IV. That ... all matters and things relating to the well-governing of this kingdom, which are properly cognizable in the Privy Council by the Laws and Customs of this realm, shall be transacted there, and all resolutions taken thereupon shall be signed by such of the Privy Council as shall advise and consent to the same. V. That ... no person born out of the kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a denizen, except such as are born of English parents) shall be capable to be of the Privy Council, or a member of either House of Parliament, or to enjoy any office or place of trust, either civil or military, or to have any grant of lands, tenements, or hereditaments from the Crown, to himself or any other or others in trust for him. VI. That no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons. VII. That ... Judges' Commissions be made _Quamdiu se bene gesserint_, and their salaries ascertained and established; but upon the Address of both Houses of Parliament it may be lawful to remove them. VIII. That no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in Parliament. MARLBOROUGH'S LETTERS RELATING TO BLENHEIM (1704). +Source.+--Coxe's _Life of Marlborough_, vol. i., pp. 206, 213-215. Bohn edition. A. _The Note to his Wife from the Blenheim Battlefield._ _August 13, 1704._--I have not time to say more but to beg you will give my duty to the queen, and let her know her army has had a glorious victory. M. Tallard and two other generals are in my coach, and I am following the rest. The bearer, my aide-de-camp, Colonel Parke will give her an account of what has passed....--MARLBOROUGH. B. _To his Wife._ _August 14._--Before the battle was quite done yesterday, I writ to my dearest soul to let her know that I was well, and that God had blessed her majesty's arms with as great a victory as has ever been known; for prisoners I have the Marshal de Tallard, and the greatest part of his general officers, above 8,000 men, and near 1,500 officers. In short, the army of M. de Tallard, which was that which I fought with, is quite ruined; that of the elector of Bavaria and the Marshal de Marsin, which Prince Eugene fought against, I am afraid, has not had much loss, for I cannot find that he has many prisoners. As soon as the elector knew that Monsieur de Tallard was like to be beaten, he marched off, so that I came only time enough to see him retire. As all these prisoners are taken by the troops I command, it is in my power to send as many of them to England as her majesty shall think for her honour and service. My own opinion in this matter is, that the Marshal de Tallard, and the general officers, should be sent or brought to her majesty when I come to England; but should all the officers be brought, it would be a very great expense, and I think the honour is in having the marshal and such other officers as her majesty pleases. But I shall do in this, as in all things, that which shall be most agreeable to her. I am so very much out of order with having been seventeen hours on horseback yesterday, and not having been able to sleep above three hours last night, that I can write to none of my friends.... Had the success of Prince Eugene been equal to his merit, we should in that day's action have made an end of the war. C. _To his Wife._ _August 18._--I have been so very much out of order for these four or five days that I have been obliged this morning to be let blood, which I hope will set me right; for I should be very much troubled not to be able to follow the blow we have given, which appears greater every day than another, for we have now above 11,000 prisoners. I have also this day a deputation from the town of Augsburg, to let me know the French were marched out of it yesterday morning, by which they have abandoned the country of Bavaria, so that the orders are already given for the putting a garrison into it. If we can be so lucky as to force them from Ulm, where they are now altogether, we shall certainly then drive them to the other side of the Rhine.... Never was victory so complete, notwithstanding they were stronger than we, and very advantageously posted. But believe me, my dear soul, there was an absolute necessity for the good of the common cause to make this venture, which God has so blessed. I am told the elector has sent for his wife and children to come to Ulm. If it be true, he will not then quit the French interest, which I had much rather he should do, if it might be upon reasonable terms; but the Imperialists are for his entire ruin.... D. _To Lord Godolphin._ _August 28._--The troops under my command are advanced three days on their march towards the Rhine, but I have been obliged to stay here[28] to finish, if possible, the treaty with the electoress.... By the letters we have intercepted of the enemy's, going to Paris from their camp at Dublingen, they all own to have lost 40,000 men. [28] At Sefelingen. ACT FOR THE UNION OF THE TWO KINGDOMS OF ENGLAND AND SCOTLAND (1707). +Source.+--_Statutes of the Realm._ Vol. viii., pp. 566-577. The Act recites:-- I. That the two kingdoms of England and Scotland shall, upon the first day of May, which shall be in the year one thousand seven hundred and seven, and for ever after, be united into one Kingdom by the name of Great Britain; and, that the ensigns armorial of the said United Kingdom be such as her Majesty shall appoint, and the crosses of St. George and St. Andrew be conjoined in such manner as her Majesty shall think fit, and used in all flags, banners, standards, and ensigns, both at sea and land. II. That the succession of the monarchy of the United Kingdom of Great Britain, and of the dominions thereunto belonging, after her most sacred Majesty, be, remain, and continue to the most excellent Princess Sophia, Electoress and Duchess Dowager of Hanover, and the heirs of her body being protestants. III. That the United Kingdom of Great Britain be represented by one and the same Parliament, to be styled, The Parliament of Great Britain. IV. That all the subjects of the United Kingdom of Great Britain shall, from and after the union, have full freedom and intercourse of trade and navigation to and from any port or place within the said United Kingdom, and the dominions and plantations thereunto belonging; and that there be a communication of all other rights, privileges, and advantages, which do or may belong to the subjects of either kingdom; except where it is otherwise expressly agreed. V.-XV. (These articles deal with Trade chiefly.) XVI. That from and after the union, the coin shall be of the same standard and value throughout the United Kingdom; as now in England, and a mint shall be continued in Scotland, under the same rules as the mint in England, and the present officers of the mint continued, subject to such regulations and alterations as her Majesty, her heirs or successors, or the Parliament of Great Britain shall think fit. XVII. That from and after the union, the same weights and measures shall be used throughout the United Kingdom, as are now established in England, and standards of weights and measures shall be kept by those burghs in Scotland to whom the keeping the standards of weights and measures, now in use there, does of special right belong: All which standards shall be sent down to such respective burghs, from the standards kept in the Exchequer at Westminster, subject nevertheless to such regulations as the Parliament of Great Britain shall think fit. XVIII. That the laws concerning regulation of trade, customs, and such excises to which Scotland is, by virtue of this treaty, to be liable, be the same in Scotland, from and after the union, as in England; and that all other laws in use within the kingdom of Scotland, do after the union, and notwithstanding thereof, remain in the same force as before (except such as are contrary to, or inconsistent with, this treaty), but alterable by the Parliament of Great Britain; with this difference between the laws concerning public right, policy, and civil government, and those which concern private right, that the laws which concern public right, policy, and civil government may be the same throughout the whole United Kingdom; but that no alteration be made in laws which concern private right, except for evident utility of the subjects within Scotland. XIX. (Scottish Courts of Law to remain as before, the right, however, of the United Parliament to make regulations and alterations being recognised.)[29] XX.-XXI. (Concern Heritable Offices and the rights of Royal Burghs.) XXII. That, by virtue of this treaty, of the peers of Scotland, at the time of the Union, sixteen shall be the number to sit and vote in the House of Lords, and forty-five the number of representatives of Scotland in the House of Commons of the Parliament of Great Britain; and that when her Majesty, her heirs or successors, shall declare her or their pleasure for holding the first, or any other subsequent, Parliament of Great Britain, until the Parliament of Great Britain shall make further provision therein, a writ do issue under the great seal of the United Kingdom, directed to the Privy Council of Scotland, commanding them to cause sixteen peers, who are to sit in the House of Lords, to be summoned to Parliament, and forty-five members to be elected to sit in the House of Commons of the Parliament of Great Britain. XXIII. That the aforesaid sixteen peers of Scotland mentioned in the last preceding article, to sit in the House of Lords of the Parliament of Great Britain, shall have all privileges of Parliament, which the peers of England now have, and which they, or any peers of Great Britain shall have after the union.... And in case that any trials of peers shall hereafter happen, when there is no Parliament in being, the sixteen peers of Scotland who sat in the last preceding Parliament, shall be summoned in the same manner and have the same powers and privileges at such trials, as any other peers of Great Britain; and that all peers of Scotland, and their successors to their honours and dignities shall, from and after the union, be peers of Great Britain, and have rank and precedency next and immediately after the peers of the like order and degrees in England at the time of the union. XXIV. (Deals with the Seals.) XXV. (Scots to retain the Presbyterian system of Church Government and English to retain the Episcopalian.) [29] No provision is made by the Act for the House of Lords to exercise final Appellate Jurisdiction. PROCEEDINGS ON THE IMPEACHMENT OF DR. SACHEVERELL (1710). +Source.+--_The Parliamentary History of England from the Earliest Period to the Year 1803._ Vol. vi., pp. 806, 809. London, 1810. P. 806. _Complaint in the Commons of Dr. Sacheverell's Sermons._ Dec. 13. A complaint being made to the House of Commons, of two printed Books; the one intituled, "The Communication of Sin; a Sermon, preached at the Assizes, held at Derby, August 15, 1709, by Dr. Henry Sacheverell;" and the other intituled, "The Perils of false Brethren, both in Church and State; set forth in a Sermon preached before the Right Hon. the Lord Mayor, Aldermen, and Citizens of London, at the Cathedral Church of St. Paul, on the 5th of November, 1709;" preached also by the said Dr. Henry Sacheverell; and both printed for Henry Clements, which Books were delivered in at the clerk's table; where several paragraphs in the epistle dedicatory, preceding the first-mentioned Book, and also several paragraphs in the latter Book, were read: _Resolution thereon._] Sir Peter King and others having made speeches against the audaciousness of the Doctor, who had advanced positions directly opposite to Revolution principles, to the present government, and to the Protestant Succession, and consequently tending to cherish factions, and stir up rebellion: those, who favoured the Doctor's cause, were surprised at this sudden attack, and, no member offering to speak in his defence, it was resolved, "That the two Sermons were malicious, scandalous, and seditious libels, highly reflecting on the queen, the late Revolution, and the Protestant Succession, tending to alienate the affections of her majesty's subjects, and to create jealousies and divisions among them." The Doctor was ordered to attend at the bar of the House the next day, and, being examined, owned the two Sermons. He likewise told them, what encouragement he had from the lord-mayor to print "The Perils of False Brethren." Sir Samuel Garrard, being a member of the House, was asked, whether the Sermon was printed at his desire or order? if he had owned it, he would have been expelled the House: but he denied, that he ever desired, or ordered, or encouraged, the printing thereof. Though the Doctor offered to prove it, and brought witnesses for that purpose, yet the House would not enter upon that examination, but it was thought more decent to seem to give credit to their own member, though few indeed believed him. The Doctor standing to what he had said, without expressing the least consciousness of having done amiss, he was directed to withdraw; and it was resolved, "That he should be impeached of high crimes and misdemeanours, and Mr. Dolben was ordered to do it at the bar of the House of Lords, in the name of all the Commons of Great Britain." At the same time a Committee was appointed to draw up the Articles against him, and the Doctor was taken into custody of the Serjeant at Arms. [The Charge against Sacheverell.] P. 809. I. "He, the said Henry Sacheverell, in his said Sermon preached at St. Paul's, doth suggest and maintain, 'That the necessary means used to bring about the said happy Revolution, were odious and unjustifiable; that his late majesty, in his Declaration, disclaimed the least imputation of resistance; and that to impute resistance to the said Revolution, is to cast black and odious colours upon his late majesty and the said Revolution.' II. "He, the said Henry Sacheverell, in his said Sermon preached at St. Paul's, doth suggest and maintain, 'That the aforesaid toleration granted by law is unreasonable, and the allowance of it unwarrantable;' and asserts that he is a false brother, with relation to God, religion or the church, who defends toleration and liberty of conscience; that queen Elizabeth was deluded by archbishop Grindall,' whom he scurrilously calls a false son of the church and a perfidious prelate, 'to the toleration of the Genevan discipline; and that it is the duty of superior pastors, to thunder out their ecclesiastical anathemas against persons entitled to the benefit of the said Toleration;' and insolently dares or defies any power on earth to reverse such sentences. III. "He, the said Henry Sacheverell, in his said Sermon preached at St. Paul's, doth falsely and seditiously suggest and assert, 'that the church of England is in a condition of great peril and adversity under her majesty's administration;' and, in order to arraign and blacken the said Vote or Resolution of both Houses of Parliament, approved by her majesty as aforesaid, he, in opposition thereto, doth suggest the church to be in danger; and, as a parallel, mentions a Vote, that the person of king Charles the 1st was voted to be out of danger, at the same time that his murderers were conspiring his death; thereby wickedly and maliciously insinuating, that the members of both Houses, who passed the said vote, were then conspiring the ruin of the Church. IV. "He, the said Henry Sacheverell, in his said Sermons and Books, doth falsely and maliciously suggest, 'that her majesty's administration both in ecclesiastical and civil affairs, tends to the destruction of the constitution; and that there are men of characters and stations, in church and state, who are false brethren, and do themselves weaken, undermine, and betray, and do encourage, and put it in the power of others, who are professed enemies, to overturn and destroy the constitution and establishment;' and chargeth her majesty, and those in authority under her, both in church and state, with a general maladministration: and, as a public incendiary, he persuades her majesty's subjects to keep up a distinction of faction and parties, instils groundless jealousies, foments destructive divisions among them, and excites and stirs them up to arms and violence. And, that his said malicious and seditious suggestions may make the stronger impressions upon the minds of her majesty's subjects, he, the said Henry Sacheverell, doth wickedly wrest and pervert divers texts and passages of holy scripture." MARLBOROUGH'S REPLY TO THE CHARGE OF PECULATION (1712). +Source.+--_The Case of his Grace the D---- of M., to be Represented by him to the Honourable House of Commons, in Vindication of Himself from the Charge of the Commissioners of Accounts in Relation to the Two and Half per Cent. Bread and Bread Waggons_ (published 1712). Acton Library Pamphlets, No. d. 25, 1001^12. [The following extract deals with Marlborough's "commissions" on the bread supplied to the Army on the Continent. The Tories alleged that he had defrauded the Exchequer by taking his 2-1/2 per cent. commission.] The first Article, in the Report, is founded on the Deposition of Sir _Solomon Medina_, by which you are Informed of a yearly Sum paid by him and his Predecessor, Contractors for Bread and Bread-Waggons, to myself. This Payment, ... I have called a Perquisite of the General or Commander in Chief in the _Low-Countries_; and it has been constantly apply'd to one of the most Important Parts of the Service there, I mean the procuring Intelligence, and other Secret Service. The Commissioners are pleased to observe, That these Sums cannot be esteemed legal Perquisites, because they don't find 'em Claim'd or Receiv'd by any other _English_ General in the _Low-Countries_. But I must take leave to affirm to this House, That this Perquisite or Payment, has been allowed to that General or Commander in Chief, in the _Low-Countries_, both before and ever since the Revolution, to enable him to carry on such Secret Service. The like Allowance was made to Prince _Waldeck_, whilst he was General of the Dutch Army in _Flanders_; it was made during the last War as well as this; and for your further Satisfaction in this matter, I am content to refer my self to Sir _Solomon Medina_, who cannot but own, that when he made this Allowance, he knew it to be the constant Practice during the former Wars in the _Low-Countries_, and particularly when Prince _Waldeck_ commanded there. And if it be a Circumstance worth your notice, he must Inform you also, That the Allowance of Waggons, which the Report takes Notice of, is usual likewise; that he has allowed the like, or near the like Number to Count _Tilly_, though he was not Velt-Marshal, and that there is a proportionate Allowance of the same kind to other Officers. The Report may have observed very rightly, that the strictest Enquiry the Commissioners could make, they cannot find that any English General ever receiv'd this Perquisite. But I presume to say, the Reason is, that there never was any other English General besides my self, who was Commander in Chief in the _Low-Countries_. I crave leave then to say, That this Observation in the Report was Occasion'd through the want of due Information in the Usage of the Army. In receiving this as an established and known Perquisite, I have follow'd and kept up that Usage which I found in the Army when I first enter'd upon that Service; And upon this Ground alone, I hope that this House will not think I was Unwarranted in taking it. But that no doubt may remain with you, I will State, as well as I can, what I have learnt, and during that time I have been in the Service, have been always understood to be the Ground, as well as the Design of this Allowance. The Contracts of Bread being of necessity at the same Rates for the whole Army, and it being for the Security of the Service that those Contracts should be in the fewest Hands; the certain Gain upon so large a sum as a Contract for the whole, or even part of the Army, even at the lowest Prices, makes this yearly allowance to have been thought not Unreasonable from the Contractor. This being an Allowance generally arising from Contracts that concern a variety of Troops, all under the same General, must naturally fall under the Direction, and come into the Hands of the Commander in Chief, as an Allowance to enable him to carry on such Designs which could not be foreseen, but yet necessary to be put in execution, and which chiefly depend upon Intelligence. I thought it more needful to give you this Account of the Nature and Design of this Allowance, because I observe from the Report, that the Objection is to the Justice and Reasonableness of the Perquisite it self, without having regard to the Application or Use for which it is intended. But the Commissioners apprehend this not to be a Justifiable Perquisite, because they say, the Publick or the Troops, necessarily suffer in proportion to every such Perquisite. If these Observations were well grounded, I should think them good Reasons to put an end to the Allowance, and at the same time to blame those who first introduced it: But I take upon me to affirm, that this neither is nor can be the Cause. I have never heard a Complaint either of publick or particular Injury from this Allowance; nor does the Report assign any particular wherein it may be judged to be so. This Allowance to the General can have no Influence upon the Contract it self, which is annually made and signed at the _Treasury_, and the Price regulated by what the States have agreed to pay for the Bread for their Forces. I appeal to all the Officers who have served with me in _Flanders_, whether the Forces in Her Majesty's Pay have not all along had as much, and as good Bread, as those of the _States_, and at the same Prices; which every Body will believe to be the Lowest, that consider the Frugal Economy of the _States_, and the small Pay of their Troops. And therefore I may safely conclude, that if the _English_ have had their Bread as Cheap as the _Dutch_, they have had it as Cheap as was possible. Nor indeed can it be imagined to be otherwise; for the very supposition of two different Prices paid by different Troops in the same Army, for the same Quantity of Bread, would occasion a Mutiny. * * * * * 'Twill be necessary that I trouble the House with an account of the Time and Occasion whence this Payment of Two and Half _per Cent._ by the Foreign Troops commenced. During the last War, the Allowance by Parliament for the Contingencies of the Army, of which that of Secret Service is the principal, was Fifty Thousand Pounds _per Annum_; but this Allowance fell so far short of the Expense on that Head, that upon the Prospect of this War's breaking out, the Late King assured me, That this part of the Service never cost him less than Seventy Thousand Pounds a year; However the Allowance of Parliament for the whole Contingent Service during this War, has been but Ten Thousand Pounds _per annum_; Three Thousand Pounds of which, or thereabouts, has generally gone for other Contingencies, than that of Intelligence. The Late King being unwilling to come to Parliament for more Money on that Head of the Service, proposed this Allowance from the Foreign Troops, as an Expedient to assist that part of the Service, and Commanded me to make the Proposition to them; which I did accordingly, and it was readily Consented to. By this Means a New Fund of about Fifteen Thousand Pounds _per annum_, was provided for carrying on the Secret Service, without any Expense to the Publick, or grievance to the Troops from whom the Allowance was made: For when the Publick pays, those Troops are not at all affected, or one Farthing increased in Consideration of this Deduction; nor is there in any Conventions for them any weight laid upon it, the Hire of Foreign Troops being governed by settled Rules and Treaties, and the Convention of the _States_ for them, being in the same Terms. * * * * * The true design of this Deduction being to supply the Secret Service, Gentlemen, I hope, you will observe that this, together with the _Article_ of the _Allowance_ by Parliament, when put together, doth fall short of the _Allowance_ given by Parliament, in the last War, upon this Head. THE TORIES AND THE WAR OF THE SPANISH SUCCESSION (1712). +Source.+--Swift: _The Conduct of the Allies_. Vol. v., pp. 66-72. Swift's Works, Bohn edition. At the Revolution, a general war broke out in Europe, wherein many princes joined in an alliance against France, to check the ambitious designs of that monarch; and here the emperor, the Dutch, and England were principals. About this time the custom first began among us of borrowing millions upon funds of interest: It was pretended, that the war could not possibly last above one or two campaigns; and that the debts contracted might be easily paid in a few years, by a gentle tax, without burthening the subject. But the true reason for embracing this expedient, was the security of a new prince, not firmly settled on the throne: People were tempted to lend, by great premiums and large interest, and it concerned them nearly to preserve that government, which they trusted with their money. The person[30] said to have been author of so detestable a project, is still living, and lives to see some of its fatal consequences, whereof his grandchildren will not see an end. And this pernicious counsel closed very well with the posture of affairs at that time: For, a set of upstarts, who had little or no part in the Revolution, but valued themselves by their noise and pretended zeal when the work was over, were got into credit at court, by the merit of becoming undertakers and projectors of loans and funds: These, finding that the gentlemen of estates were not willing to come into their measures, fell upon those new schemes of raising money, in order to create a monied interest, that might in time vie with the landed, and of which they hoped to be at the head. The ground of the first war, for ten years after the Revolution, as to the part we had in it, was, to make France acknowledge the late king, and to recover Hudson's Bay. But during that whole war, the sea was almost entirely neglected, and the greatest part of six millions annually employed to enlarge the frontier of the Dutch. For the king was a general, but not an admiral; and although King of England, was a native of Holland. After ten years fighting to little purpose; after the loss of above an hundred thousand men, and a debt remaining of twenty millions, we at length hearkened to the terms of a peace, which was concluded with great advantages to the empire and Holland, but none at all to us;[31] and clogged soon after by the famous treaty of partition;[32] by which, Naples, Sicily, and Lorrain, were to be added to the French dominions; or if that crown should think fit to set aside the treaty, upon the Spaniards refusing to accept it, as they declared they would, to the several parties at the very time of transacting it; then the French would have pretensions to the whole monarchy. And so it proved in the event; for the late King of Spain reckoning it an indignity to have his territories cantoned out into parcels, by other princes, during his own life, and without his consent, rather chose to bequeath the monarchy entire to a younger son of France: And this prince[33] was acknowledged for King of Spain both by us and Holland. It must be granted, that the counsels of entering into this war were violently opposed by the church-party, who first advised the late king to acknowledge the Duke of Anjou; and particularly, 'tis affirmed that a certain great person,[34] who was then in the church interest, told the king in November, 1701, That since His Majesty was determined to engage in a war so contrary to his private opinion, he could serve him no longer, and accordingly gave up his employment; though he happened afterwards to change his mind, when he was to be at the head of the Treasury, and have the sole management of affairs at home; while those abroad were to be in the hands of one, whose advantage, by all sorts of ties, he was engaged to promote. The declarations of war against France and Spain, made by us and Holland, are dated within a few days of each other. In that published by the States, they say very truly That "they are nearest, and most exposed to the fire; that they are blocked up on all sides, and actually attacked by the Kings of France and Spain; that their declaration is the effect of an urgent and pressing necessity;" with other expressions to the same purpose. They "desire the assistance of all kings and princes," &c. The grounds of their quarrel with France, are such as only affect themselves, or at least more immediately than any other prince or state; such as, "the French refusing to grant the Tariff promised by the treaty of Ryswick; the loading the Dutch inhabitants settled in France, with excessive duties, contrary to the said treaty; the violation of the Partition Treaty, by the French accepting the King of Spain's will, and threatening the States, if they would not comply; the seizing the Spanish Netherlands by the French troops, and turning out the Dutch, who by permission of the late King of Spain were in garrison there; by which means that republic was deprived of her barrier, contrary to the treaty of partition, where it was particularly stipulated, that the Spanish Netherlands should be left to the archduke." They alleged, that "the French king governed Flanders as his own, though under the name of his grandson, and sent great numbers of troops thither to fright them: That he had seized the city and citadel of Liège, had possessed himself of several places in the archbishopric of Cologne, and maintained troops in the country of Wolfenbuttel, in order to block up the Dutch on all sides; and caused his resident to give in a memorial, wherein he threatened the States to act against them, if they refused complying with the contents of that memorial." The Queen's declaration of war is grounded upon the grand alliance, as this was upon the unjust usurpations and encroachments of the French king; whereof the instances produced are, "his keeping in possession a great part of the Spanish dominions, seizing Milan and the Spanish Low Countries, making himself master of Cadiz, &c. And instead of giving satisfaction in these points, his putting an indignity and affront on Her Majesty and kingdoms, by declaring the pretended Prince of Wales, K. of England, &c.," which last was the only personal quarrel we had in the war; and even this was positively denied by France, that king being willing to acknowledge Her Majesty. I think it plainly appears by both declarations, that England ought no more to have been a principal in this war, than Prussia, or any other power, who came afterwards into that alliance. Holland was first in the danger, the French troops being at that time just at the gates of Nimeguen. But the complaints made in our declaration, do all, except the last, as much or more concern almost every prince in Europe. For, among the several parties who came first or last into this confederacy, there were but few who, in proportion, had more to get or to lose, to hope or to fear, from the good or ill success of this war, than we. The Dutch took up arms to defend themselves from immediate ruin; and by a successful war, they proposed to have a larger extent of country, and a better frontier against France. The emperor hoped to recover the monarchy of Spain, or some part of it, for his younger son, chiefly at the expense of us and Holland. The King of Portugal had received intelligence, that Philip designed to renew the old pretensions of Spain upon that kingdom, which is surrounded by the other on all sides, except towards the sea, and could therefore only be defended by maritime powers. This, with the advantageous terms offered by K. Charles,[35] as well as by us, prevailed with that prince to enter into the alliance. The Duke of Savoy's temptations and fears were yet greater: The main charge of the war on that side was to be supplied by England, and the profit to redound to him. In case Milan should be conquered, it was stipulated that his highness should have the Duchy of Montferrat, belonging to the Duke of Mantua, the provinces of Alexandria and Valencia, and Lomellino, with other lands between the Po and the Tanaro, together with the Vigevenasco, or in lieu of it, an equivalent out of the province of Novara, adjoining to his own state; beside whatever else could be taken from France on that side by the confederate forces. Then, he was in terrible apprehensions of being surrounded by France, who had so many troops in the Milanese, and might have easily swallowed up his whole duchy. The rest of the allies came in purely for subsidies, whereof they sunk considerable sums into their own coffers, and refused to send their contingent to the emperor, alleging their troops were already hired by England and Holland. Some time after the Duke of Anjou's succeeding to the monarchy of Spain, in breach of the partition treaty, the question here in England was, Whether the peace should be continued, or a new war begun. Those who were for the former alleged the debts and difficulties we laboured under; that both we and the Dutch had already acknowledged Philip for King of Spain; that the inclinations of the Spaniards to the house of Austria, and their aversion for that of Bourbon, were not so surely to be reckoned upon, as some would pretend; that we thought it a piece of insolence, as well as injustice, in the French to offer putting a king upon us; and the Spaniards would conceive, we had as little reason to force one upon them; that it was true, the nature and genius of those two people differed very much, and so would probably continue to do, as well under a king of French blood, as one of Austrian; but, that if we should engage in a war for dethroning the D. of Anjou, we should certainly effect what, by the progress and operations of it, we endeavoured to prevent, I mean an union of interest and affections between the two nations; for the Spaniards must of necessity call in French troops to their assistance: This would introduce French counsellors into King Phillip's court; and this, by degrees, would habituate and reconcile the two nations: That to assist King Charles by English or Dutch forces, would render him odious to his new subjects, who have nothing in so great an abomination, as those whom they hold for heretics: That the French would by this means become masters of the treasures in the Spanish West Indies: That, in the last war, when Spain, Cologne, and Bavaria were in our alliance, and by a modest computation brought sixty thousand men into the field against the common enemy; when Flanders, the seat of war, was on our side, and His Majesty, a prince of great valour and conduct, at the head of the whole confederate army; yet we had no reason to boast of our success: How then should we be able to oppose France with those powers against us, which would carry sixty thousand men from us to the enemy, and so make us, upon the balance, weaker by one hundred and twenty thousand men at the beginning of this war, than of that in 1688? On the other side, those whose opinion, or some private motives, inclined them to give their advice for entering into a new war, alleged how dangerous it would be for England, that Philip should be King of Spain; that we could have no security for our trade, while that kingdom was subject to a prince of the Bourbon family; nor any hopes of preserving the balance of Europe, because the grandfather would, in effect, be king, while his grandson had but the title, and thereby have a better opportunity than ever of pursuing his design for universal monarchy. These and the like arguments prevailed; and so, without offering at any other remedy, without taking time to consider the consequences, or to reflect on our own condition, we hastily engaged in a war which hath cost us sixty millions; and after repeated, as well as unexpected success in arms, hath put us and our posterity in a worse condition, not only than any of our allies, but even our conquered enemies themselves. The part we have acted in the conduct of this whole war, with reference to our allies abroad, and to a prevailing faction at home, is what I shall now particularly examine; where I presume it will appear, by plain matters of fact, that no nation was ever so long or so scandalously abused by the folly, the temerity, the corruption, the ambition of its domestic enemies; or treated with so much insolence, injustice and ingratitude by its foreign friends. This will be manifest by proving the three following points. _First_, That against all manner of prudence, or common reason, we engaged in this war as principals, when we ought to have acted only as auxiliaries. _Secondly_, That we spent all our vigour in pursuing that part of the war which could least answer the end we proposed by beginning of it; and made no efforts at all where we could have most weakened the common enemy, and at the same time enriched ourselves. _Lastly_, That we suffered each of our allies to break every article in those treaties and agreements by which they were bound, and to lay the burthen upon us. [30] Dr. Gilbert Burnet, Bishop of Sarum. [31] The Peace of Ryswick, concluded in October, 1697. All that Louis did for England by that peace was to acknowledge William as King of England, and to engage not to assist his enemies. The Dutch and Leopold, however, were much better treated. The former had its commerce re-established, while to the latter were given many fortresses and towns, and advantages strengthening his empire. The Peace of Ryswick was truly not a peace, but a temporary cessation of hostilities. [32] The Partition Treaties arose out of the troublesome question of the Spanish succession. After the Peace of Ryswick William III. and Louis XIV. attempted to settle this question by a partition of the Spanish possessions. [33] This was Philip of Anjou, second son of the Dauphin. [34] Sidney Godolphin, one of the greatest financiers among English statesmen. He was Lord High Treasurer under Queen Anne, and an intimate friend, as well as relative by marriage, of Marlborough. He was created an Earl in 1706, but was removed from his office at the fall of the Whig ministry in 1710. [35] The Archduke Charles, who styled himself Charles III. of Spain. VICAR OF BRAY. _Old Song Composed in the time of George I._ The song illustrates the many changes of religion in the later Stuart period. 1. In good King Charles's golden days When loyalty no harm meant, A zealous High-Churchman was I, And so I got preferment. To teach my flock, I never missed, Kings were by God appointed, And damned are those that dare resist Or touch the Lord's anointed. _Chorus._ And this is law that I'll maintain Until my dying day, sir, That whatsoever King shall reign I'll still be Vicar of Bray, sir. 2. When royal James possessed the Crown And Popery came in fashion The penal laws I hooted down And signed the Declaration. The Church of Rome I found would fit Full well my constitution, And I had been a Jesuit But for the Revolution. _Chorus._ And this is law, etc. 3. When William was our King declared To ease the nation's grievance, With this new wind about I steered And swore to him allegiance. Old principles I did revoke, Set conscience at a distance; Passive obedience was a joke, A jest was non-resistance. _Chorus._ And this is law, etc. 4. When royal Anne became our Queen, --The Church of England's glory,-- Another face of this was seen And I became a Tory. Occasional Conformists base I blamed their moderation, And thought the Church in danger was By such prevarication. _Chorus._ And this is law, etc. 5. When George in Pudding-time came o'er, And moderate men looked big, sir, My principles I changed once more, And thus became a Whig, sir. And so preferment I secured From our new faith's defender, And almost every day abjured The Pope and the Pretender. _Chorus._ And this is law, etc. 6. The illustrious House of Hanover And Protestant Succession, To them I do allegiance swear-- Whilst they can keep possession. For in my faith and loyalty I never more shall falter, And George my lawful King shall be-- Until the times do alter. _Chorus._ And this is law, etc. BELL'S ENGLISH HISTORY SOURCE BOOKS Scope of the Series and Arrangement of Volumes. 1. Roman Britain to 449. 2. 449-1066. 3. 1066-1154. 4. 1154-1216. 5. 1216-1307. 6. 1307-1399. 7. 1399-1485. 8. 1485-1547. 9. 1547-1603. _Immediately._ 10. 1603-1660. _Now Ready._ 11. 1660-1714. " 12. 1714-1760. _Immediately._ 13. 1760-1801. _Now Ready._ 14. 1801-1815. _Immediately._ 15. 1815-1837. 16. 1837-1856. 17. 1856-1876. 18. 1876-1887. 19. 1887-1901. 20. 1901-1912. _The volumes are issued in uniform style._ _Price 1s. net each._ BILLING AND SONS, LTD., PRINTERS, GUILDFORD 
40904	----	(This file was produced from images generously made available by the Library of Congress.) THE MYSTERY OF THE PINCKNEY DRAUGHT BY CHARLES C. NOTT FORMERLY Chief Justice of the United States Court of Claims NEW YORK THE CENTURY CO. 1908 Copyright, 1908, by THE CENTURY CO. _Published, November, 1908._ TO CEPHAS BRAINERD OF THE NEW YORK BAR A SOUND LAWYER AND A LONG-TRIED FRIEND CONTENTS CHAPTER PAGE I. STATEMENT OF THE CASE 3 II. THE DRAUGHT IN THE STATE DEPARTMENT 16 III. OF THE ISSUE OF FRAUD 23 IV. MADISON AS A WITNESS 29 V. MADISON AS AN ADVOCATE 40 VI. THE POSITION TAKEN BY MADISON 58 VII. THE PLAGIARISMS 65 VIII. THE IMPROBABILITIES 85 IX. THE OBSERVATIONS 105 X. THE SILENCE OF MADISON 143 XI. THE WILSON AND RANDOLPH DRAUGHTS 158 XII. THE COMMITTEE'S USE OF THE DRAUGHT 206 XIII. WHAT BECAME OF THE DRAUGHT 225 XIV. WHAT PINCKNEY DID FOR THE CONSTITUTION 243 XV. CONCLUSIONS ON THE WHOLE CASE 257 XVI. OF PINCKNEY PERSONALLY 278 APPENDIX MR. CHARLES PINCKNEY'S DRAUGHT OF A FEDERAL GOVERNMENT 295 DRAUGHT OF THE COMMITTEE OF DETAIL 306 INDEX 325 THE MYSTERY OF THE PINCKNEY DRAUGHT CHAPTER I STATEMENT OF THE CASE When I began the studies which have resulted in this book someone asked me what I was doing, and I chanced to answer that I was looking into the mystery of Pinckney's draught of the Constitution. Afterwards I received a letter from Professor J. Franklin Jameson in which he spoke of the uncertainties attending the draught as "mysteries"; and later I found that Jared Sparks, back in 1831, had been engaged in the same study and had used the same term. With two such scholars as Professor Jameson and Mr. Sparks recognizing the knowable but unknown element which we call mystery, I retain the term which I chanced to use. "A true mystery, instead of ending discussion, calls for more." "What constitutes a mystery is the unknown which is certainly connected with the known. A mystery therefore is unfinished knowledge."[1] [Footnote 1: Dr. William Hanna Thomson, Brain and Personality, p. 278.] At the opening of the Convention which framed the Constitution, Charles Pinckney of South Carolina presented a draught of a constitution that was referred to the Committee of the Whole. This draught was not a subject of notice or comment by any speaker or writer of the time. One might infer from the silence of all records and writers that it was the fanciful scheme of an individual which exercised no influence whatever on the Convention and did not contribute a single line or sentence to the Constitution. On the adjournment of the Convention its records and papers were placed under seal and the obligation of secrecy was set upon its members. When ultimately the seals were broken and the package was opened, more than thirty years afterwards, the draught of Pinckney was not found. John Quincy Adams then Secretary of State applied to Pinckney for a copy; and he on the 30th of December 1818, sent to the Secretary of State the duplicate or copy of the draught now in the Department of State. The document was published and remained unquestioned until in 1830, six years after the death of Pinckney, it came, or was brought, to the attention of Madison; and he at different times wrote to at least four persons concerning it and also prepared a statement which was subsequently published with it in Gilpin's edition of Madison's Journal, and in Elliot's Debates; and then the Pinckney draught slept unnoticed in constitutional publications until a review in the columns of the Nation awakened an interest in Mr. Worthington C. Ford and he in 1895 published the letter which accompanied the draught when it was placed in the State Department. Nevertheless, if the copy in the Department is identical in terms, or substantially identical in terms, with the paper which Pinckney presented to the Convention, then Charles Pinckney contributed more of words and provisions to the Constitution of the United States than any other man. And this draught so prepared by him was so largely adopted in a silent way that the law student who might chance to read it, not knowing of the comment of Madison and its rejection by all commentators, would be tempted to speak of the Constitution of the United States as the constitution of Pinckney. The reason why the Pinckney draught has received so little attention, and he has received no credit at all for what apparently is an extraordinary piece of constitutional work can be readily explained. The statement of Madison is written in temperate and guarded terms; and it is manifest that he was careful to speak with courtesy of Pinckney and to furnish an explanation in the nature of a bridge over which the friends of Pinckney, then deceased, might retreat. But what he does say instantly brings the reader's mind to the conclusion that the paper in the State Department is not the paper--that it is not a substantial copy of the paper, which was before the Convention. Story had been appointed by Madison and it was not for Story to accept what Madison rejected; and Story was so great a man, so great a judge and commentator, that it was not for lesser men to reverse him. Madison's comment and Story's silence have united to condemn the draught so effectively that while printed and reprinted it has been as unnoted as if it had never been written. The final, judicial edict of George Bancroft expressed the general judgment when he wrote of the original draught which was actually before the Convention, "No part of it was used, and no copy of it has been preserved." Moreover Madison is too great an authority to be lightly questioned, the highest authority that exists concerning the proceedings of the Convention; and he asserts and undertakes to demonstrate that the one paper can not be a true copy of the other. He designates provisions which he says originated in the Convention and could not have been predetermined by Pinckney; and still more conclusively, as he thinks, he points to the fact that the paper in the Department contains provisions to which Pinckney was himself opposed, provisions against which he spoke and voted in the Convention. Here Madison builds his bridge. Mr. Pinckney, he suggests, furnished this copy many years after the event (nearly 32 years), after he had become an old man and the record of events had faded in his memory; and probably as the work of the Convention went on he had used a copy of his draught as a memorandum and had interlined in it provisions which the Convention framed; and when he sent the copy to the Secretary of State he had forgotten this, or had gradually come to regard the interlined matter as his own. A writer like Story with the training of a lawyer and a judge on finding the authenticity of the copy impeached in part would be almost certain to exclude it wholly from the consideration of the jury. Historical analysis and research may, nevertheless, render that clear which is obscure and show us where the work of Pinckney begins and ends. There are some extrinsic facts which hitherto unknown should be noted. In the first place this letter of Pinckney anticipates one of Madison's criticisms and explains away his strongest point. "It may be necessary to remark," he says, "that very soon after the Convention met I changed and avowed candidly the change of my opinion on giving the power to Congress to revise the State laws in certain cases, and in giving the exclusive power to the Senate to declare war, thinking it safest to refuse the first altogether and to vest the latter in Congress." Hunt's Madison, III, p. 22. As to one of these things concerning which Pinckney says he changed his mind after the Convention met, the power of Congress to revise the laws of the States, the assertion is not sustained by Madison's record of the proceedings. He undoubtedly did change his mind but not until after the adjournment of the Convention. There was however another provision in his draught to which his assertion would apply. Concerning it he did change his mind and "avowed candidly the change of his opinion" and did so "very soon after the Convention met." This is the provision which declares that members of the lower house shall be chosen by the _people_ of the several States. Article 3. As early as the 6th of June he proposed that they should be chosen by the _legislatures_ of the several States. Writing 32 years after the event and when the record had faded in his memory, the two things, to use Madison's words, "were not separated by his recollection." The letter is a contemporaneous declaration, given at the moment when he produced the document and placed it on file in the Department of State, that the copy, like the original, contained provisions which he opposed in the Convention. With this contemporaneous notice to the Secretary of State one of Madison's objections which at first seemed insuperable, if it does not fall to the ground, at least becomes susceptible of explanation; and the retention in the copy of the draught of these apparently inconsistent things, accompanied at the time, as they were, by Pinckney's declaration, not only removes the objection of Madison but tells strongly in favor of the draught being what Pinckney represented it to be. In the second place Pinckney speaks of having "several rough draughts of the Constitution" ("4 or 5 draughts" he says) and he adds "that they are all substantially the same, differing only in words and the arrangement of the articles." Pinckney had preserved them certainly until the end of the year 1818, and "numerous notes and papers which he had retained relating to the Federal Convention." He also says that "with the aid of the journal of the Convention and the numerous notes and memorandums I have preserved, it would now be in my power to give a view of the almost insuperable difficulties the Convention had to encounter, and of the conflicting opinions of the members; and I believe I should have attempted it had I not always understood Mr. Madison intended it. He alone possessed and retained more numerous and particular notes of their proceedings than myself." These "numerous notes and memorandums, more numerous and particular" than those preserved by any other person, Madison "alone" excepted, and with them the "several rough draughts," which he found with the other papers on his return to Charleston in 1818, existed when Pinckney wrote his letter and placed his copy of the draught in the State Department. They existed both to refresh his memory and to refute him if he was not acting in good faith. He acknowledged Madison to be his superior in "notes and memorandums" and a particular knowledge of the proceedings of the Convention; and Madison was still living, and Pinckney by placing his copy of the draught in the State Department invited Madison and all the world to examine it. That was the time when Madison should have spoken. It is most unfortunate that he waited fourteen years, and until after Pinckney's death and the death of every other member of the Convention, before he spoke. Like many another young lawyer I came upon Pinckney's draught in Elliot's Debates and was astounded by finding so large a part of the Constitution apparently written by the hand of a man whom I had never heard extolled as a framer of the Constitution; and like many another young lawyer, I accepted the reasons of Madison and the silence of Story as conclusive. But the discovery and publication of Pinckney's letter in 1895 threw new light upon the subject and made it plain that Madison's objections should not be taken as final and that his premises needed corroboration. I therefore prepared the following inquiries in the hope that I could persuade some historical scholar to take up this work of Constitutional investigation. 1. Does the draught in the State Department upon its face appear to be an author's draught--a, "rough draught," as Pinckney called it--with his corrections, erasures, interlineations and alterations or does it appear to be a duplicate or a fair copy of an original or "rough" draught? It is in the handwriting of Pinckney; does it appear to be his original piece of work, or an engrossed copy made by him of another paper? 2. If upon the face of the instrument it appears to be an engrossed copy, though in Pinckney's handwriting, that is a copy of the rough draught with its alterations and corrections engrossed therein, then the historical critic must proceed to try the issue of Pinckney's truthfulness. He tells the Secretary of State at the time when he produces the paper that "it is impossible for me now to say which of the 4 or 5 draughts I have is the one. But enclosed I send you the one I believe was it. I repeat, however, that they are substantially the same, differing only in form and unessentials." If this language be taken literally it means that he is about to place in the archives of the Department of State one of those "original" "4 or 5 draughts" and as he believes the very one of which he prepared an engrossed copy for the use of the Convention. If the language be not taken literally, it at least means that he sends a true copy of one of the original rough draughts. Is there anything in the draught to refute either representation? Does it contain words, phrases, clauses, provisions which certainly did originate in the Convention; which were ground out there, and which could not possibly have been anticipated by Pinckney as he sat in his study early in 1787 making draught after draught for the consideration of the coming Convention? 3. Finally, it will be apparent on reflection that even if all of the foregoing issues should be decided against Pinckney; that is to say, if it should be found that the paper in the State Department is not an original draught--is not one of the four or five draughts to which Pinckney alludes, or that it contains interlineations of which Pinckney could not have been the author, even then after deciding all doubtful points against him a great deal will remain which must have been his; and historical criticism and careful analysis will be able to measure this residuum and give us a fair estimate of its value, so that we can know with tolerable certainty how much of the Constitution was the work of Pinckney. As I have not been able to persuade any competent scholar to take up this inquiry which seems to me to be an inquiry due to the truthfulness of our Constitutional history and to the memory of a framer of the Constitution whose work was not questioned until after his death, I have felt that the work has become a duty and that the duty has been imposed on me. CHAPTER II THE DRAUGHT IN THE STATE DEPARTMENT The Pinckney draught in the Department of State is written on unruled paper larger than common foolscap, hand made, and with untrimmed edges. The interlineations are few and trivial and clerical, the insertion of an omitted word and the like. There are two exceptions to this. In article 3 the draught says, "The House of Delegates shall consist of ---- to be chosen from the different States in the following proportions: For New Hampshire ---- for Massachusetts ----" etc., etc. But the names of the States are not set forth in the body of the instrument as they stand in all editions, being written on the margin and the place where they should have been inserted being noted by a mark. The second exception is in the last line of article 5. The subject of the paragraph is the veto power; and the clause "all bills sent to the President and not returned by him within ---- days shall be Laws, unless the legislature, by their adjournment, prevent their return" was originally written, "unless the legislature by their adjournment prevent its return, in which case it shall not be the law." The words "its" and "it" are erased with the pen and the words "their" and "they" written over them and the article "a" and a final "s" are stricken out so that the clause as corrected reads as printed. In at least two particulars the draught is erroneously printed in almost all editions. Pinckney did not write "Art. I," "Art. II," etc. Above the first article of the draught in the middle of the line, is written "Article 1." Over all the other articles, and likewise in the middle of the line, are simply the arabic figures "2," "3," "4," etc., without the word "article." The second particular, in which many printed copies are erroneous, is in article 3. The printer has there run together two parts of distinct sentences. The true reading is that each member of the House of Delegates shall be "a resident in the State he is chosen for," the sentence closing with the word "for." A new sentence then begins: "Until a census of the people shall be taken in the manner hereinafter mentioned, the House of Delegates shall consist of ---- to be chosen from the different States in the following proportions," etc. But in some we find that a delegate shall be "a resident of the State he is chosen for until a census of the people shall be taken in the manner hereinafter mentioned," which makes the intended provision senseless. The first of the foregoing inquiries (p. 12 ante), Does the draught in the State Department upon its face appear to be an author's draught, a rough draught with his corrections, erasures, interlineations and alterations, or does it appear to be an engrossed copy made by him of another paper, has been answered decisively by Mr. Gaillard Hunt in his edition of the Writings of Madison: "The penmanship of all three papers (the draught and the letter to the Secretary of State and a previous letter to the Secretary December 8, 1818) is contemporaneous, and the letter of December 30 and the draught were written with the same pen and ink. This may possibly admit of a difference of opinion because the draught is in a somewhat larger chirography than the letter, having been, as befitted its importance, written more carefully. But the letter and the draught are written upon the same paper, and this paper was not made when the Convention sat in 1787. There are several sheets of the draught and one of the letter, and all bear the same watermark, 'Russell and Co. 1798.'" Vol. III, p. 16. The draught, as before shown, contains a few verbal corrections, one or two trivial erasures, two or three obviously necessary interlineations but no alteration. That is to say it contains no alteration of substance--nothing which indicates on the part of the writer an intent to change or add to the substance of what he has written--there is no additional provision interlined, no obscure expression amplified, no omitted thought supplied--the corrections are one and all clerical. The document, therefore upon its face does not appear to be a "rough draught." When the Secretary of State had written to Pinckney "I now take the liberty of addressing you, to inquire _if you have a copy of the Draught_ proposed by you, and if you can without inconvenience furnish me at an early day, _with a copy of it_" and Pinckney replied that among his notes and papers he had "found several rough draughts of the Constitution" and that "I send you the one I believe was it," and with the letter sent a document which obviously was not a rough draught, the fair and reasonable interpretation of his language (apart from an intent to defraud) is that he was sending what the Secretary of State had asked for, viz., "a copy" of the "copy of the draught proposed by you" to the Convention; and that what he meant to say was, "I send you 'a fair copy made by myself of the one I believe was it.'" What a rough draught is may be seen by referring to the literal reprint of the Journal of Madison in the Documentary History of the Constitution by the Department of State. It is something which requires an editor to put the author's changes and amendments in their proper places. A constructive piece of work as long as the Pinckney draught, must have been cut, transposed, changed, added to over and over again. To be intelligible it would require editing, and the Secretary had informed Pinckney that he wanted the "copy" for publication, and that he wanted it "at an early day": and no man would have parted with such an important paper and confided the editing of it to some unknown clerk in an executive department. In a word Pinckney did what any man similarly circumstanced would have done, he kept the original paper in his possession, and sent to the Secretary of State what he had asked for, "a copy of it." If we turn now to the printed copy of the draught and note the extent of article 6, containing the enumeration of the powers of Congress, and the extent of the second paragraph of article 8, setting forth the powers and duties of the President, and if we remember that all this matter is to be found in the Constitution, it becomes instantly apparent that absorption of all these provisions by interlineation as suggested by Madison was absolutely impossible. In a word the bridge which Madison built breaks down. Therefore we must face the inexorable alternative: either Pinckney gave to the Convention a draught substantially like that in the State Department or he fraudulently fabricated that draught after the Secretary of State had called upon him for a copy. CHAPTER III OF THE ISSUE OF FRAUD On this issue of fraud we must first look at the circumstances as they existed in December, 1818. Pinckney had been a Senator of the United States, Governor of South Carolina, Minister to Spain and had just been elected to the important Congress which was to grapple with the National questions involved in the Missouri Compromise. He may have been a vain man as Madison thought him--(most men of great ability and prominence are egotistical; it is egotism ordinarily which impels them to the front) but no one has intimated that Pinckney could have been guilty of an act which from moral and historical points of view was little better than a crime. Some one contributed the many provisions which are to be found in the Constitution, and it would have been infamous to filch the honor from the real author. The most felicitous sentence in the Constitution, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," if it was Pinckney's, passed through the Committee of Detail, the Committee of Style and the Convention without the change of a single word. It was one of those rare sentences of which everybody approved; and it is not lightly to be assumed that in 1818 Pinckney would steal such a conspicuous sentence from the Constitution and place it at the head of one of his own articles. Moreover if the draught was a tissue of fraud detection was always possible; and detection would have blasted the life of Pinckney nowhere with greater severity than in his own State. In 1818 sixteen other members of the Convention were still living, and three of them had been members of the Committee of Style, and two of them (Charles Cotesworth Pinckney and Pierce Butler), had been delegates from South Carolina. Letters too from members might disclose the fatal truth. A son of some member might come forward with his father's draught of some of these provisions. Autobiographies, diaries and personal reminiscences of members might exist. Detection was possible, and in the ordinary course of human events, certain. Conversely it is proper here to note the fact that in all these years not a line of writing has been found to thrown a shade of discredit upon the Pinckney draught. The temptation, too, was relatively small. The Constitution was not then in the estimation of the American people what it is now. No one then had proclaimed it to be "the greatest work ever thrown off by the brain and purpose of man." In 1818 the first work on the Constitution (Rawle's) had not yet been written. Monroe was President, and the country was just emerging from the poverty which followed the war of 1812-15. Pennsylvania and Georgia had defied the federal power and the latter had passed a statute making it a crime punishable with death to enforce the process of the Supreme Court of the United States. State feeling was always stronger in the South than in the North and out of State feeling had grown the doctrine of State rights. The South at that time could cherish no warm regard for the man who had first written "all acts made by the legislature of the United States, pursuant to this Constitution, and all treaties made under the authority of the United States shall be the supreme law of the land." It must also be noted that Pinckney was not a volunteer in this matter--that he did not thrust his draught upon the Secretary of State--that he never came before the public claiming to have contributed this or anything to the Constitution. The subject was introduced by Mr. Adams and not by Pinckney; and the draught was produced in response to Mr. Adams' inquiries concerning it. Pinckney showed no great solicitude about it then. His letter is slovenly and careless and manifestly not written for posterity, and it contains no indication of his regarding it as any thing more than a personal explanation. It was due to Mr. Adams to tell him that this draught which he inclosed was not a literal duplicate of the one which he had placed before the Convention; and it was due to himself to say that it contained provisions of which he had subsequently disapproved and which he had opposed in the Convention. Pinckney certainly did not suppose that he was writing history or biography when he wrote that letter. The letter demonstrates how inadequately Pinckney estimated the greatness of the Constitution and overestimated his own part in the work, and how poorly the Constitution was then esteemed. At the beginning it had been but an experiment and in the opinion of many men an experiment that would fail. Under the moulding hands of Jay and Marshall it had become to Southern statesmen more and more an object of distrust and dislike. It seemed then a growing menace to the rights of the South and the sovereignty of South Carolina. For Pinckney to have asserted publicly that he was the chief author of the instrument and of its most offensive provisions would have inclined his fellow citizens in Charleston to say that instead of boasting of his work he ought to be ashamed of it; that where State rights were involved it was at best ambiguous; and that, if he was the author of the draught, he more than any other man had enabled the judges to interpret the Constitution in favor of Federal supremacy. Certainly if this issue of fraud had been involved in a criminal case Pinckney would have been able to establish two things--good character, and the absence of a motive to defraud. CHAPTER IV MADISON AS A WITNESS Having now seen what Pinckney said in 1818 and what he did and where he stood, let us turn to the other party in the controversy, Madison, and examine the testimony which he gave and the evidence on which he relied. His journal (as edited by Gilpin) after setting forth the speech of Randolph on the 29th of May, and the reference of the 15 resolutions of the Virginia delegates, to the Committee of the Whole, contains this record: "Mr. Charles Pinckney laid before the house a draught of a federal government to be agreed upon between the free and independent states of America." "Ordered that the same be referred to the Committee of the Whole appointed to consider the state of the American Union." But Yates's Minutes give us one thing more: "Mr. Pinckney, a member from South Carolina, then added that he had reduced his ideas of a new government to a system, _which he then read_." Madison's report of Pinckney's speech on the 25th of June stops with the subject of State governments and the propriety of having but one general system. But Yates gives in a condensed form the conclusion of Pinckney's speech and contains the following sentences: "I am led to form the second branch (of the legislature) differently from the report. I have considered the subject with great attention and I propose this plan (reads it) and if no better plan is proposed I will then move its adoption." Once while reflecting upon the extraordinary, the seemingly inexplicable course which Madison pursued in relation to the Pinckney draught--positive and yet evasive; alleging but never testifying--my eye happened to fall on this minute of Yates and it suggested the fact of these repeated omissions of Madison's to state the contents of the Pinckney draught, and I asked myself the question, is it possible that Madison never knew what the draught contained? In an examination of the facts relating to this question I found that the entry in the journal, above quoted, "Mr. Charles Pinckney laid before the house a draught" etc. had been taken word for word from the entry of the Secretary of the Convention in the official Journal. I found also that at four different times in the course of the debates Madison designated the draught by four different terms; as Mr. Pinckney's "plan" as Mr. Pinckney's "resolutions" as Mr. Pinckney's "motion" as Mr. Pinckney's "propositions," not one of which expressed the idea of a formulated Constitution. It is therefore evident that Madison did not hear Pinckney read his draught as Yates did, and did not hear him say as Yates did, "that he had reduced his ideas of a new government to a system." My inference then was and still is, that Madison was temporarily absent from the hall when Pinckney produced and read his draught and that on hearing of it he went to the Secretary's desk and copied the entry in the official journal--an entry which is also silent as to Pinckney having read the draught and which describes it in language entirely different from Yates's and entirely different from Pinckney's, for Pinckney's draught does not profess to be an agreement "between the free and independent States of America," but is avowedly an act of the people of the United States. It therefore appears both positively and negatively that Madison was not present when Pinckney presented his draught; that he could not have heard Pinckney's designation of it as a "system" and could not have heard Pinckney read it to the Convention. He regrets in another place that he did not take a copy of it because of its length and it may be inferred from what may be termed his unfailing ignorance of its contents that he did not read it because of its length. Madison had a poor opinion of Pinckney, a very poor opinion; and he held fast to it all through his life. During the sitting of the Convention the draught was referred to repeatedly in discussions and motions and references. Madison recorded what was said, and the more important of the motions and references, but his opinion of Pinckney was so poor that he did not put himself to the trouble of stepping to the Secretary's desk and reading the draught, much less of taking a copy of it. In October 1787, after the dissolution of the Convention, he wrote from New York to Washington and Jefferson, the following letters: James Madison to General Washington. NEW YORK, Octr. 14, 1787. * * * * * "I add to it a pamphlet which Mr. Pinckney has submitted to the public, or rather as he professes, to the perusal of his friends, and a printed sheet containing his ideas on a very delicate subject, too delicate in my opinion to have been properly confided to the press. He conceives that his precautions against any further circulation of the piece than he himself authorizes, are so effectual as to justify the step. I wish he may not be disappointed. In communicating a copy to you, I fulfill his wishes only." (Gaillard Hunt's Writings of Madison, Vol. V., p. 9.) Madison to Jefferson. NEW YORK, Octr. 24, 1787. * * * * * "To these papers I add a speech of Mr. C. P. on the Mississippi business. It is printed under precautions of secrecy, but surely could not have been properly exposed to so much risk of publication." (Id., p. 39.) Madison to General Washington. NEW YORK, Oct. 28, 1787. * * * * * "Mr. Charles Pinckney's character is, as you observe well marked by the publications which I enclosed. His printing the secret paper at this time could have no motive but the appetite for expected praise; for the subject to which it relates has been dormant a considerable time, and seems likely to remain so." (Id., p. 43.) In the memorandum "For Mr. Paulding" written shortly before April 6, 1831, reappears Madison's poor opinion of Pinckney. "It has occurred to me that a copy (of the Observations) may be attainable at the printing office, if still kept up, or in some of the libraries or historical collections in the city. When you can snatch a moment, in your walks with other views, for a call at such places, you will promote an object of some little interest as well as _delicacy_ by ascertaining whether the article in question can be met with." On the 25th of November, 1831, he wrote to Jared Sparks, "I lodged in the same house with him, and he was fond of conversing on the subject. As you will have less occasion than you expected to speak of the Convention of 1787, may it not be best to say nothing of this _delicate_ topic relating to Mr. Pinckney, on which you cannot use all the lights that exist and that may be added?" On the 6th of January, 1834, he wrote to Thomas S. Grimke: "There are a number of other points in the published draught, some conforming most literally to the adopted Constitution, which, it is ascertainable, could not have been the same in the draught laid before the Convention. The conformity, and even identity of the draught in the Journal, with the adopted Constitution, on points and details the results of conflicts and compromises of opinion apparent in the Journal, have excited an embarrassing curiosity often expressed to myself or in my presence. The subject is in several respects a _delicate_ one; and it is my wish that what is now said of it may be understood as yielded to your earnest request, and as entirely confined to yourself. I knew Mr. Pinckney well, and was always on a footing of friendship with him. But this consideration ought not to weigh against justice to others, as well as against truth on a subject like that of the Constitution of the United States." And on the 5th of June, 1835, he wrote to William A. Duer: "I have marked this letter 'confidential,' and wish it to be considered for yourself only. In my present condition enfeebled by age and crippled by disease, I may well be excused for wishing not to be in any way brought to public view on subjects involving considerations of a _delicate_ nature." Madison wrote with characteristic caution and courtesy but there is something very suggestive in the way he uses the word "delicate." Neither Mr. Paulding nor Mr. Sparks nor Mr. Grimke nor Judge Duer could have doubted that there was something wrong in the draught--something so wrong that Madison did not wish to speak of it. It is manifest that when Madison first read the draught in the State Department, he was surprised. He does not say so, and is very guarded in what he does say; yet it is perfectly plain that the magnitude of this contribution to the Constitution was something absolutely new to him. He better than any other man was supposed to know, the work and workings of the Convention, and lo, here was a document of more importance than any given in his journal, or found among the records of the Convention, and of its contents he had been ignorant until the document was laid before the world by the State Department! Between 1818 and 1836, the magnitude of this and its importance as an historical document was forced upon Madison's attention from time to time by younger men who took a warmer interest in the Constitution and its history and its framers than their fathers had taken; and it is apparent that he was astounded at the historical importance of the document. Marshall was then drawing near to the end of his majestic judicial reign, and though assailed and thwarted by the cavilings and dissents of lesser men, had placed his imperishable impress upon the Constitution and revealed to his countrymen its greatness and consistency and power of nationality. The growing interest in the great instrument would not be quieted. Madison would fain have kept silent, as he advised his two most trusted correspondents to do. But he could not! He was the greatest of authorities, living or dead, in all that pertained to the making of the Constitution; the last living member of the Convention; the sole chronicler of its secret history. It is as plain now as it was then that he must speak. What could he say? Madison was not able to say, "I read the Pinckney draught when it was before the Convention, I studied it, I knew the contents well; the paper in the State Department is not a substantial duplicate of that paper." There remained then but this alternative; he must confess that he knew no more about the Pinckney draught than did the men who were interrogating him or he must do precisely what he did do, he must attack it on documentary evidence as an advocate, and must remain silent as a witness. If he had testified as a witness; if he had said of his own knowledge that the paper which Pinckney placed in the State Department was not a copy of the paper which he had laid before the Convention and was not a substantial duplicate worthy of consideration, that would have been the end of the matter. Certainly I should never have felt called upon to make the present investigation. But Madison did not so testify. Under the pressure of steadily increasing interest in the Constitution, inquirer after inquirer came to him to explain how a man whom they did not regard as a wise statesman could have contributed so much to the Constitution, which they had regarded as the composite work of a number of great men. They did not come to him for reasons or advice or references to documentary evidence, but because he was the one survivor of the men who could have testified, the only chronicler of what had happened in the Convention from first to last, and they sought his personal knowledge. They asked him to tell them what he knew concerning the Pinckney draught, the original draught, the one which was before the Convention; and he answered not a word! We must reject Madison as a witness because he rejected himself. CHAPTER V MADISON AS AN ADVOCATE At this day Madison is regarded as one of the chief statesmen in the group of leading framers of the Constitution; but his best appreciated work was his keeping the only record which we have of that august assembly. He, who dealt with the great questions of the hour, may not have been aware how much good work the Pinckney draught was doing in an unnoticed way. Madison spared no effort to make his journal complete, and no little time in doing so. He copied and inserted in it the Virginia resolutions and the New Jersey resolutions; and he also inserted Pinckney's long speech of the 25th of June; and yet he did not procure and apparently did not even read and certainly did not insert in his journal Pinckney's plan or draught. He seems to have felt sadly a certain self-conviction of this, and to have realized the fact that the omission of the Pinckney draught from his record was an irretrievable error. To a man holding the author of the draught in contempt, it must have seemed preposterous in 1831 for the shade of Pinckney to stalk upon the historic stage and say, I formulated the Constitution. It was my hand that sketched its outline, leaving it to the members of the Convention, myself among the number, to change its provisions and modify its terms. My draught was changed and modified, and the conflicting views of the framers were welded together by notable compromises and persuasive arguments, but nevertheless I contributed more of form and substance, more of detail and language to the instrument known as the Constitution of the United States than any other man. Accordingly, Madison, while he closed his lips as a witness, rallied his failing forces as an advocate and proceeded to give from time to time first to one correspondent and then to another and finally to the people of the United States, in a "Note" to accompany his Journal when published, all the reasons he could marshal from the written record of the case why the draught in the State Department was an impossible verity. At what time the Pinckney draught was first brought to Madison's attention I have not been able to discover; but on the 5th of May, 1830, Mr. Jared Sparks had been spoken or written to on the subject, for he then replied to Madison, writing from Washington, "Since my return I have conversed with Mr. Adams concerning Charles Pinckney's draught of a constitution. He says it was furnished by Mr. Pinckney." Among Madison's papers there is also a memorandum entitled, for Mr. Paulding in which he says: "Much curiosity and some comment have been exerted by the marvellous identities in a plan of government proposed by Charles Pinckney in the convention of 1787, as published in the Journals with the text of the constitution, as finally agreed to." This memorandum is not dated, but is placed chronologically before a letter to Mr. J. K. Paulding dated April, 1831. On the 21st of June, 1831, he wrote to Jared Sparks: "May I ask you to let me know the result of your correspondence with Charleston on the subject of Mr. Pinckney's draught of a Constitution for the United States as soon as it is ascertained?" On the 27th of June, he again wrote to Mr. Paulding saying that he has "received the volume of pamphlets containing that of Mr. Charles Pinckney." On the 25th of November, 1831, he again wrote to Mr. Sparks: "The simple question is whether the draught sent by Mr. Pinckney to Mr. Adams and printed in the Journal of the Convention could be the same with that presented by him to the Convention on the 29th May, 1787, and I regret to say that _the evidence that that was not the case is irresistible_." He instances the election of members of Congress by the people, and the debate of June 6 as "a sufficient example." "But what decides the point" is a letter "from him to me" dated March 28, 1789--a letter quoted by Gilpin of which I shall hereafter speak. Madison is guarded in all he says, but it is perfectly plain that while he wished to impress upon Paulding and Sparks the idea that the draught which Pinckney placed in the State Department was not the draught which he presented to the Convention, he at the same time shrank from bringing on a controversy and from irritating the friends of Pinckney and forcing them into an investigation of the matter. It was, he evidently thought, a case of "least said, soonest mended." Madison was a sagacious and an experienced statesman who thoroughly understood his countrymen; Paulding and Sparks were his friends and followers; what he wished to have said passed into Gilpin's edition of the Journal and Elliot's Debates, and gave the unquestioning world what he wished it to know and nothing more. The bridge which he built was safely passed over by the friends of Pinckney and his method of destroying the good name of the draught without needlessly smirching the good name of Pinckney, and without inciting a controversy on the subject has been so successful that for seventy years the draught has remained silently condemned, and no man has even thought that an investigation could possibly reverse the accepted judgment. But on the 25th of April 1835, William A. Duer of New York wrote to Madison on the same subject and making the same inquiry. Judge Duer was an eminent and brilliant member of the New York bar and was then President of Columbia College and had been a well known judge. For three years the ghost of Pinckney had not been raised to disturb the serenity of Madison's old age. Paulding and Sparks were his friends and were publicists. To them he could say little which would mean much; and for them his wishes and suggestions would be as binding as a law. Judge Duer was not such a personal friend and to him Madison must speak more freely; he was the possessor of a strong inquiring mind, and to him, Madison must so strongly state the case that it would seem unquestionable. He therefore, with characteristic caution lingered until the 5th of June, and then in his reply to Judge Duer made a supreme, if not final effort. In this letter, he brings up again, the election of members by "the people" and Pinckney's speech against it on the 6th of June. "Other discrepancies," he says, "will be found in a source also within your reach, a pamphlet published by Mr. Pinckney soon after the close of the Convention" (Pinckney's Observations). "A friend who has examined and compared the two documents has pointed out the discrepancies noted below." "One conjecture explaining the phenomenon has been that Mr. Pinckney interwove with the draught sent to Mr. Adams passages as agreed to in the Convention in the progress of the work and which after a lapse of more than thirty years were not separated by his recollection." The "discrepancies noted below" are for the most part unimportant; and will be examined hereafter; but there is one which should be considered now, for it affects Madison more than it affects Pinckney. The discrepancy referred to is this: In the Observations Pinckney says that, "in the best instituted Legislatures of the States we find not only two branches [of the legislature] but in some 'a council of revision'"; and he adds that he has incorporated this "as a part of the system." The friend says "The pamphlet refers to the following provisions which are not found in the plan furnished to Mr. Adams as forming a part of the plan presented to the Convention: The executive term of service 7 years. 2. A council of revision." The statesmen who framed the Constitution were sufficiently statesmen to know that what we call the veto power is not really a veto power; and that the President, unlike the Crown, is not a part of the law-making power. The constitution of New York and not the constitution of Great Britain furnished the framers with the needed model. By all of them it was known that the duty imposed and intended to be imposed upon the President was simply a duty of "revision." This has been a subject of judicial inquiry and the history of the veto provision may be stated in the words of the court: "At an early day, June 6, this question of legislative power was determined by two decisive votes. The Convention adopted the principle of revision, but being mindful, as Rutledge afterwards said, that 'the judges ought never to give their opinion on a law, till it comes before them,' and that they 'of all men are the most unfit to be concerned in the Revisionary Council,' struck out Randolph's 'convenient number of the national judiciary' and left the power of revision in the President alone. At a later day, August 6th, Rutledge 'delivered in the Report of the Committee of Detail,' the committee which embodied the previously ascertained views of the Convention in a draught of the proposed Constitution. This section was couched in the very words of the constitution of New York: Every bill shall be presented to the President '_for his revision_'; 'if upon _such revision_' he approve it, he shall sign it; 'if upon _such revision_ it shall appear to him improper for being passed into a law,' he shall return it. On the 15th of August, with this word _revision_ three times repeated, 'The thirteenth section of article 6, as amended, was then agreed to' by all the States. It is this vote which is expressive of the final intent of the Convention. The verbal form in which the provision stands in the Constitution was the work of the Committee of Style. "This 'revisionary business,' as Madison calls it, came up again and again; appears and reappears in his Journal from the 6th of June to the 16th of August; was considered and reconsidered, discussed and rediscussed. The views of members swung between the extremes of absolute affirmative power in Congress and absolute negative power in the President. The proposition of Hamilton 'to give the Executive an absolute negative on the laws,' identical with the legislative power of the Crown, was rejected by ten States and supported by none. The proposition of Madison to add the judges of the Supreme Court in the 'revision' of bills was likewise rejected. At last the deliberations ended where they had begun. The Convention held fast to the principle of a Council of Revision and left the duties of the council in the President alone. He was to be the Council of Revision. In the words of Madison, the Convention 'gave the Executive alone, without the judiciary, the _revisionary control_ on the laws, unless overruled by two-thirds of each branch.'" _The United States v. Weil_ (29 Court of Claims Reports 523; affirmed in _La Abra Co. v. The United States_, 175 U.S.R. 423. Madison forgot that on the 6th of June South Carolina had voted "no" on the motion, to make "a convenient number of the National judiciary" a council of revision, and that the vote was unanimous; and he forgot that he had written with his own hand only eight days after Pinckney had presented his draught to the Convention: "Mr. Pinckney _had been at first_ in favor of joining the heads of the principal departments, the Secretary of War, of foreign affairs, etc., in the council of revision. He had however _relinquished the idea_ from a consideration that these could be called on by the Executive Magistrate whenever he pleased to consult them. He was opposed to an introduction of the judges into the business." Hunt's Writings of Madison, III., pp. 89, 111. According to Madison there was a discrepancy--more than a discrepancy, a flat contradiction between the Observations and the draught in the State Department, the one saying explicitly that in "some of the best instituted legislatures of the States" there was "a council of revision, consisting of their executive and principal officers of government" and that he had "incorporated it as part of the system"; the other containing no such provision but, like the Constitution, giving the executive alone the revisionary control of the laws. A superficial examination of the case would easily bring one to the conclusion that Pinckney in 1818 omitted the council of revision from the draught for the State Department and copied from the Constitution the provision which the Convention framed. But the brief speech of Pinckney written down contemporaneously by Madison himself, singularly vindicates both the Observations and the draught and leaves the latter stronger than it would have been if Madison's friend had not furnished "the discrepancies noted below." The significance of the term "council of revision" was not known to the friend who arrayed the Observations against the draught and may not have been to Judge Duer. Neither did they know that in the judgment and understanding of the Convention the President with powers and duties defined as they were defined was in legal effect the embodiment of the council of revision. But Madison knew it, or had known it. He too had personally participated in the work by his repeated efforts to engraft a council of revision on the Constitution, and his knowledge he had written down in his own words. Certainly he had no right to attack Pinckney through his unnamed friend. Certainly he had no right to leave Judge Duer to infer that the discrepancies noted below had received his scrutiny and approval. His Journal he knew would be published, he was even then providing for it in his will, and when published it would contradict the discrepancy noted below and sustain the copy of the draught which he was attacking. The obvious explanation is that Madison's failing memory failed to record his own words, "the Convention gave the executive alone, without the judiciary, the revisionary control of the laws," and Pinckney's express declaration as early as the 6th of June that "he had been at first" in favor of a council of revision but for reasons stated had changed his mind. And let it not be supposed that Madison deliberately intended to deceive or that he was actuated by a malignant wish to deprive Pinckney of any thing which he really believed was actually his due. Madison was then an old man--a very old man--in his 85th year who had lived long and under the strain of great labors and intense excitements and withering anxieties. He was too old and too weary, and too strongly prejudiced to change his mind in a minute or to reverse the judgment of many years by an investigation de novo. The word "phenomenon" in his letter to Judge Duer reveals his state of mind and well explains his acts. That the boy who had lodged in the same house with him in Philadelphia, the youngest member of the Convention as he believed, who was always talking about his draught, whom he disliked and underrated, that he should appear in 1818 as the chief contributor to, as the principal draughtsman of the Constitution of the United States was indeed to him a phenomenon. It was something which he could not really believe. There is a note of contrition when he writes that "the length of the document laid before the Convention and other circumstances prevented my taking a copy at the time." He really believed that if he had procured and kept a copy of the draught which Pinckney laid before the Convention, it would have blown to pieces this wild pretentious claim which he had laid before the Secretary of State. And Madison made a great mistake when he represented Pinckney to Judge Duer as an old man in 1818 whose waning recollection could not then separate the real from the fictitious in the draught which he had found among his papers in Charleston. For Madison in 1835, when he wrote to Judge Duer, was twenty-five years older than Pinckney was when he sent the draught to Mr. Adams; and twenty-five years at that end of life is no small difference. Moreover his memory from his youth up had been laden and taxed with great events. It was fifty-two years since he had made this despondent note in his record of the debates in Congress: "Monday, March 17, 1783. "A letter was received from General Washington, enclosing two anonymous and inflammatory exhortations to the army to assemble, for the purpose of seeking, by other means, that justice which their country showed no disposition to afford them. The steps taken by the general to avert the gathering storm, and his professions of inflexible adherence to his duty to Congress and to his country, excited the most affectionate sentiments towards him. By private letters from the army, and other circumstances, there appeared good ground for suspecting that the civil creditors were intriguing, in order to inflame the army into such desperation as would produce a general provision for the public debts. These papers were committed to Mr. Gilman, Mr. Dyer, Mr. Clark, Mr. Rutledge, and Mr. Mercer. The appointment of these gentlemen was brought about by a few members, who wished to saddle with this embarrassment the men who had opposed the measures necessary for satisfying the army, viz., the half-pay and permanent funds; against one or other of which the individuals in question had voted. "This alarming intelligence from the army, added to the critical situation to which our affairs in Europe were reduced by the variance of our ministers with our ally, and to the difficulty of establishing the means of fulfilling the engagements and securing the harmony of the United States, and to the confusions apprehended from the approaching resignation of the superintendent of finance, gave peculiar awe and solemnity to the present moment, and oppressed the minds of Congress with an anxiety and distress which had been scarcely felt in any period of the revolution." It was 48 years since Madison had served as the most laborious member of the Convention. It was 28 years since he had seen the Navy disgraced by the surrender of the Chesapeake after firing only a single gun--a disgrace caused by the shameful negligence and incapacity of administrative officers at Washington while he was a member of Jefferson's Cabinet. It was 21 years since he had seen the Army disgraced by the negligence of his own Secretary of War and the incapacity of a general of his own choosing, and his Capitol burnt and himself and his Cabinet fugitives, and his heroic wife, her friends and the military guard of "a hundred men all gone," resolutely refusing to leave the Executive Mansion until she had taken "the precious portrait" of Washington from its frame to save it from the ignominy of capture by a British Army. The Pinckney draught was but a leaf blown aside in the tumults of his troubled life. But there remains the documentary evidence which Madison adduced and the specification of plagiarism which he filed; and apart from Madison and apart from Pinckney there remains the ultimate question which every student of the Constitution must desire to have examined, and if possible, answered, "What provisions of the Constitution were contributed by Pinckney"? CHAPTER VI THE POSITION TAKEN BY MADISON The position taken by Madison in private letters to individuals, he had a right to modify, abandon or withdraw; and it would not be treating him fairly to hold him to words hastily written and perhaps inspired by an impulse of the moment. But the "Note of Mr. Madison to the Plan of Charles Pinckney" (Elliot Vol. 5, 578) deliberately prepared by him for future publication, and intended by him to accompany the draught of the State Department in future publications so that it should destroy the supposed verity of the copy, must be taken as the final expression of his judgment. "Note of Mr. Madison to the Plan of Charles Pinckney, May 29, 1787." "The length of the Document laid before the Convention, and other circumstances, having prevented the taking of a copy at the time, that which is ["here inserted" stricken out] inserted in the Debates was taken from the paper furnished to the Secretary of State, and contained in the Journal of the Convention, published in 1819 which it being taken for granted was a true copy was not then examined. The coincidence in several instances between that and the Constitution as adopted, having attracted the notice of others was at length suggested to mine. On comparing the paper with the Constitution in its final form, or in some of its Stages; and with the propositions, and speeches of Mr. Pinckney in the Convention, it was apparent that considerable errour had crept into the paper; occasioned ["probably" stricken out] possibly by the loss of the Document laid before the Convention, (neither that nor the Resolutions offered by Mr. Patterson, being among the preserved papers), and by a consequent resort for a copy to the rough draught, in which erasures and interlineations following what passed in the Convention, might be confounded in part at least with the original text, and after a lapse of more than thirty years, confounded also in the memory of the Author. "There is in the paper a similarity in some cases, and an identity in others, with details, expressions, and definitions, the results of critical discussions and modifications in the Convention, that ["cannot be ascribed to accident or anticipation" omitted] could not have been anticipated. "Examples may be noticed in Article VIII. of the paper; which is remarkable also for the circumstance, that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer, nor indeed for the appointment of any Executive Magistracy: notwithstanding the evident purpose of the Author to provide an _entire_ plan of a Federal Government. "Again, in several instances where the paper corresponds with the Constitution, it is at variance with the ideas of Mr. Pinckney, as decidedly expressed in his propositions, and in his arguments, the former in the Journal of the Convention, the latter in the report of its debates: Thus in Art: VIII. of the paper, provision is made for removing the President by impeachment; when it appears that in the Convention, July 20, he was opposed to any impeachability of the Executive Magistrate: In Art: III., it is required that all money-bills shall originate in the first Branch of the Legislature; which he strenuously opposed Aug: 8, and again, Aug: 11. In Art: V., members of each House are made ineligible to, as well as incapable of holding, any office under the Union, etc., as was the case at one Stage of the Constitution; a disqualification highly disapproved and opposed by him Aug: 14. "A still more conclusive evidence of errour in the paper is seen in Art: III., which provides, as the Constitution does, that the first Branch of the Legislature shall be chosen by the people of the several States; whilst it appears, that on the 6th of June, according to previous notice, too, a few days only, after the Draft was laid before the Convention, its Author opposed that mode of choice, urging & proposing, in place of it, an election by the Legislatures of the several States. "The remarks here made, tho' not material in themselves, were due to the authenticity and accuracy aimed at, in this Record of the proceedings of a Publick Body, so much an object, sometimes, of curious research, as at all times, of profound interest." * * * * * "As an Editorial note to the paper in the hand writing of Mr. M. beginning 'The length, &c.'" "*Striking discrepancies will be found on a comparison of his plan, as furnished to Mr. Adams, and the view given of that which was laid before the Convention, in a pamphlet published by Francis Childs at New York shortly after the close of the Convention. The title of the pamphlet is 'Observations on the plan of Government submitted to the Federal Convention on the 28th of May, 1787, by Charles Pinckney, &c.' "But what conclusively proves that the choice of the H. of Reps. _by the people_ could not have been the choice in the lost paper is a letter from Mr. Pinckney to J. M. of _March 28, 1789_, now on his files, in which he emphatically adheres to a choice by the _State Legrs._ The following is an extract--'Are you not, to use a full expression, abundantly convinced that the theoretical nonsense of an election of the members of Congress by the people in the first instance, is clearly and practically wrong--that it will in the end be the means of bringing our Councils into contempt and that the Legislatures (of the States) are the only proper judges of who ought to be elected?'" It is plain that Madison intended that the last two paragraphs of the foregoing, beginning with an asterisk, should take the form of an editorial note, and he so prepared the paper even to the placing of the asterisk at the beginning. As long before this as 1821 he had determined in his own mind that the publication of the Journal should be as he termed it, "a posthumous one" (letter to Thomas Ritchie September 15, 1821), and he carried out the intention by so providing in his will made in 1835. The expected editor was Mrs. Madison; and she, he knew, would scrupulously and intelligently carry into effect his slightest wish. She was not able to perform the editorial task. When these charges of Madison are analyzed they may be reduced to three. The first and most serious charge is that there are coincidences "in several instances" between the draught and the Constitution--"a similarity in some cases and an identity in others with details, expressions and definitions" which were "the results of critical discussion and modification in the Convention." The second is that there are provisions in the draught inconsistent with Pinckney's known views, with the propositions which he presented and the speeches which he made in the Convention and that these provisions are so inconsistent with his views and speeches that they are "conclusive evidence of error" in the draught. The third, is that Pinckney immediately after the sittings of the Convention printed and published a paper entitled "Observations" which described the contents of the draught which he had presented to the Convention and that the two are utterly irreconcilable. CHAPTER VII THE PLAGIARISMS Notwithstanding Madison's ignorance of the contents of the draught, and the fallacy of the inference which he drew from the fact that Pinckney did not adhere to all the provisions of a tentative scheme, there remains an objection of the gravest character, susceptible of proof or disproof which must rest on facts and not be deduced by inferences. The objection that Pinckney framed a provision at one time and disapproved of it at another is easily superable: the objection that "there is in the paper a similarity in some cases and an identity in others with details, expressions and definitions, the results of critical discussion and modification in the Convention _which could not have been anticipated_," is insuperable--if it be well founded. That is to say if there are "details, expressions and definitions" in the State Department copy of the draught which were "the results of critical discussion and modification in the Convention which could not have been anticipated," then the presumption must be well nigh irrefutable that these "details, expressions and definitions" in the questionable instrument were taken from the Constitution; and in the absence of extraordinary explanation, we shall be compelled to agree with Madison that the evidence is "irresistible"--unless indeed it should appear that the expressions and definitions which at first sight appear to have been begun and created in the Convention had previously existed in the Articles of Confederation or in a State Constitution, or in the resolutions of the Continental Congress or in some source open to all parties. To a right understanding of the circumstances and conditions of the subject of investigation, we must bear in mind, when we begin the inquiry whether there are "details, expressions and definitions" in the Pinckney draught which were "the results of critical discussion and modification in the Convention," that the Constitution passed through four germinal stages: The first began with Randolph's 15 resolutions, on the 29th of May, and ended on the 26th of July with the 23 resolutions of the Convention. The 15 resolutions had been considered and discussed and modified and expanded into the 19 resolutions of the Committee of the Whole, June 13th; and the 19 resolutions had also been considered and discussed and modified and enlarged into the 23 resolutions of the Convention, July 26th. Never in the history of nations did a deliberative public body strive so philosophically, so wisely and well to possess itself of the subjects to be considered--to comprehend its task--to know what it was doing and to do. "At the beginning, propositions for consideration and discussion were tentatively placed before the Convention in an _abstract_ form. These propositions were embodied in 15 resolutions, which were immediately referred to the Committee of the Whole. They were taken up one by one, and considered and discussed and amended or rejected or adopted or postponed for later consideration. The abstract of a part of a single day's proceedings will give a clear idea of the way in which the Convention worked: "Tuesday, June 5. Mr. Randolph's _ninth_ proposition--_The national judiciary to be chosen by the national legislature_--Disagreed to--_To hold office during good behavior and to receive a fixed compensation_--Agreed to _To have jurisdiction over offenses at sea, captures, cases of foreigners and citizens of different States, of national revenue, impeachment of national officers, and questions of national peace and harmony_--Postponed. * * * * * "At the end of two weeks of such consideration and discussion, June 13, the Committee of the Whole reported the conclusions which had so far been reached in the form of 19 resolutions. But everything was still abstract and tentative. No line of the Constitution had yet been written; no provision had yet been agreed upon. The 19 resolutions in like manner were taken up, one by one, and in like manner considered and discussed, and amended or rejected or adopted or postponed. Other propositions coming from other sources were also considered; and so the work went on until July 26, when the conclusions of the Convention were referred to the Committee of Detail, and the work of reducing the abstract to the concrete began. The Convention then adjourned to August 6, to enable the committee to 'prepare and report the Constitution.' "On August 6, the Committee of Detail reported and furnished every member with a printed copy of the proposed Constitution. Again the work of consideration began, and went on as before, section by section, line by line. Vexed questions were referred to committees representing every State,--"grand committees" they were called,--amendments were offered, changes were made, the Committee of Detail incorporated new and additional matters in their draught, until, on September 8, the work of construction stopped. But not even then did the labors of the Convention cease. On that day a committee was appointed, "by ballot, to revise the style of, and arrange, the articles which had been agreed to." This committee was afterward known as the Committee of Style. It reported on the 12th of September, and the work of revision again went on until Saturday, the 15th. On Monday, the 17th, the end was reached, and the members of the Convention signed the Constitution. Well might Franklin exclaim in his farewell words to the Convention: 'It astonishes me, sir, to find the system approaching so near to perfection as it does!' He had been overruled more than once in the Convention; provisions which he had proposed had been rejected; provisions which he had opposed had been retained; but he was a great man and saw that a great work had been accomplished." The Immutability of the Constitution. Encyclopædia Americana. * * * * * The second germinal stage began July 26th with the appointment of a committee--the Committee of Detail "for the purpose of reporting a Constitution," and continued until August 6th when "Mr. Rutledge delivered in the report of the Committee of Detail--a printed copy being at the same time furnished to each member." The Committee had retired from the Convention with instructions couched in the 23 resolutions, and they returned to it with more than half of the Constitution, arranged in the form of articles and sections substantially as we have them in the Constitution. The number of provisions contained in the draught greatly exceeded the number of specific instructions set forth in the resolutions, but the excess was not wholly an excess of authority for it had been resolved: "That the national legislature ought to possess the legislative rights vested in Congress by the Confederation: and moreover to legislate in all the cases for the general interests of the Union, and also in those to which the States are separately incompetent or in which the harmony of the United States may be interrupted by the exercise of individual legislation." When the paper which Rutledge held in his hand, as he rose to address the Convention on the 6th of August, was placed on the table before Washington, the moment witnessed the birth of the Constitution. Provisions which it contained were to be stricken out, and some of the great compromises were yet to be forged and inscribed upon the scroll, but the written Constitution was now in being. And yet this is but figurative language. The great state paper which passed from the hand of Rutledge to the hand of Washington was not engrossed on parchment, like a second Magna Charta; it was not attested by signature or date; it was not even in writing; a few pages of printer's paper, plain and unpretentious; a mere copy, one of a number of printed copies, as we gather from the record. But it was to receive the severest scrutiny of some of the great men of the world, of Washington, Franklin, Madison, Ellsworth, Wilson, Rutledge, Hamilton. The printed document found in the box which holds the few records of the Convention is not unworthy of a great state paper. It is on stately, heavy, hand-made paper, 10 by 15-1/2 inches in size. The printed matter is 5-1/4 inches by 12-1/2. There are seven pages carrying from 27 to 53 lines on each. The workmanship is faultless; the type clear, the impression uniform, the ink unfaded, the punctuation careful, the spacing perfect. There are but two typographical errors, one of which is a misnumbering of the articles. In Pinckney's draught the first article has inscribed over it "Article 1" and the following articles have only their numbers 2, 3, etc. The printer followed the same form, the only difference being that Pinckney, writing the draught with his own hand, used arabic figures, for which the printer substituted Roman numerals. When he reached the seventh article he repeated VI. and when he reached the eighth he entitled it VII. and continued the error through the remaining articles. Notwithstanding this blemish I have never seen so faultless a public document. The copy bears this endorsement: "Printed Draught of the Constitution, received from the President of the United States, March 19th, 1796 by "TIMOTHY PICKERING "Sec'y of State" The name of the printer who did his confidential work so well, I regret to say, is not upon the paper. It has been supposed and said that this copy of the draught was Jackson's, the inefficient Secretary of the Convention, and that he used it to save himself the trouble of writing out the proceedings in the journal by noting amendments on the margin. This like much other imaginary history is erroneous. When I first saw the draught of the committee, I observed that the notes on the margin were written in two different hands. I also observed that one of these though not familiar was a hand which I had seen before. On calling the attention of Mr. S. B. Crandall of the Bureau of Rolls to it, he instantly recognized this writing as Washington's. A further examination showed that 115 notes and interlineations were written by Washington and 7 by Jackson. _This copy of the draught was Washington's own copy!_ Whether he placed the copy among the papers of the Convention on September 17, 1787 when the Secretary brought them to him; or whether he transferred his own copy to the Secretary of State in 1796 is unknown and probably unascertainable, but the indorsement makes it certain that the paper came to the Department directly from Washington; and the 115 carefully made emendations in his handwriting are for us the highest evidence in the world of its authenticity. The notes by Jackson are easily explicable; they are lengthy amendments which Washington could not take down from hearing them read; and he handed his printed copy to the Secretary to have them correctly and fully written out.[1] [Footnote 1: For the benefit of those persons who are so fortunate as to have a copy of the Documentary History of the Constitution (Department of State, 1894) I will add that the marginal notes which are in the writing of Jackson are those of Art. V, Sec. I; Art. VI, Sec. 3; Sec. 13, Art. VII; Sec. 1, Art. XI; Sec. 4, Art. XV; (see Doc. Hist., Constitution Vol. I, p. 285).] If the Committee of Detail--Rutledge of South Carolina, Randolph of Virginia, Gorham of Massachusetts, Ellsworth of Connecticut and Wilson of Pennsylvania--intended to keep their work a profound secret, and the secret to be buried with themselves, they could not have planned better than they did. The work was done in secret; they employed no secretary; their report was not in writing. After the committee was discharged no hint or word seems to have escaped them. No man boasted of his own part or disparaged another's. There is no journal which tells us how they worked. No son or daughter or grandchild has revealed a word that any member subsequently said. In 1813 when Edmund Randolph died, the secret of the members of the Committee of Detail died with him. The third germinal stage was based on the draught of the Committee of Detail and extended from the 6th of August to the 12th of September. The draught of the Committee constituted the divide in the march of the framers. Behind them was the plain of philosophical disquisition on which there had been many contests, but exclusively as to what might be and might not be. Before them were many hills of difficulty to be surmounted in the practical application of abstract propositions by incorporating them in provisions and conditions to be written into the Constitution. But the work of the Convention and the debates of the members were in connection with the draughted Constitution of the Committee of Detail, or in connection with amendments thereof or additions thereto. There were indeed new provisions framed sometimes by grand committees, sometimes by special committees, sometimes by the Convention itself--provisions concerning which the Convention had not at first sufficiently instructed the Committee of Detail--provisions which the Convention had not then considered and determined even in the form of abstract propositions. The most difficult of the compromises, that between the large and the small States in the choosing of the President, was effected; and the method first proposed by Wilson and rejected by the Convention, June 2nd, that the choice should be made through the agency of electoral colleges was reconsidered and adopted. The power to try officers impeached by the House of Representatives was taken from the Supreme Court and given to the Senate; the power to appoint ambassadors, and judges of the Supreme Court, was taken from the Senate and given to the President; the power to appoint the Treasurer of the United States was taken from the Legislative branch and given to the Executive; and the important treaty-making power which at first was lodged exclusively in the Senate was transferred to the Executive subject to the ratification of the Senate. But all that was considered and agreed upon was attached to the draught of the Committee of Detail. The fourth stage began on the 12th of September with the revised Constitution reported by the Committee appointed "to revise the style of and arrange the articles" which had been agreed upon, commonly termed the "Committee of Style," but which more correctly might have been termed the Committee of Revision. During that and the next three days the Constitution was modified by a number of amendments chiefly of the nature of corrections. The Committee of Style made no changes other than those of arrangement and language. The correction of the language of the Constitution was masterly and is ascribed by Madison to Gouverneur Morris. On Saturday the 15th of September the labors of the Convention ended. On Monday the 17th, the engrossed Constitution was signed. In his "Note to the Plan," Madison specifies some of the "details, expressions and definitions" which were framed in the Convention, the "results of critical discussions" that "could not have been anticipated" by Pinckney. "Examples" of these "similarities" and "identities" he says, "may be noticed in article VIII, which is remarkable also for the circumstance that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer." These are all the specifications of provisions or of language plagiarised from the Constitution by Pinckney which Madison has filed. Specifying nothing else, we may assume that the plagiarisms contained in article VIII. were the plagiarisms which dwelt in his own mind and upon which he rested his conclusions. These specific charges of plagiarism may be struck down by a single blow:-- _Not one of the provisions contained in Pinckney's article VIII was framed in the Convention, and all were brought before the Convention by the draught of the Committee of Detail. All the provisions of the Constitution which were framed by the Convention were framed subsequently to the 6th of August and belong to the 3d and 4th germinal periods. All the provisions which are contained in the draught of the Committee of Detail were framed before the 6th of August and existed before the constructive work of the Convention began._ When the sequence of events is observed the matter is cleared and the "phenomenon" of Madison becomes a simple link in the chain of events. Pinckney presented his draught to the Convention on its first business day before there had been a single "critical discussion." The Convention immediately referred the draught to the Committee of the Whole, which made it accessible to every member of the Convention. When a committee was appointed to draught a Constitution, the draught of Pinckney was taken from the Committee of the Whole and referred to the Committee of Detail. The committee found in the draught matter which they needed and they used it as the basis of their own draught as any committee would have done. And thus the draught of the Committee of Detail became the vehicle by means of which these provisions and expressions of Pinckney were carried into the Constitution. If all this were not a matter of record it would be well nigh unbelievable that Madison of all men could have pursued the course he did. The most diligent member of the Convention, the chronicler of its transactions, the sole survivor of its members and, consequently, a witness who should speak with the greatest care; and yet we find him, at one end of the line, ignorant of the contents of Pinckney's draught, and at the other silent as to the contents and existence of the draught of the Committee of Detail. When he wrote of "the coincidence in several instances between that [the State Department draught] and the _Constitution as adopted_" and cited article VIII as containing remarkable examples of these coincidences, he gave unconsciously a curious illustration of things "confounded in the memory" "after a lapse of more than thirty years"--in his case, after a lapse of more than forty-five years. With the fall of these specifications falls the general charge of plagiarism. The draught in the State Department ends with the draught of the Committee of Detail; whatever coincidences there be of "details, expressions and definitions" are coincidences in the two draughts and in them alone. The similarities and identities which so impressed Madison were merely similarities and identities between the two draughts. He doubtless selected article VIII as "remarkable" because he recognized in it provisions and expressions which he knew were in the Constitution. But there are others in article VIII which are not in the Constitution and which are inconsistent with it. The retention of these is sufficient to refute the idea that Pinckney changed his draught to make it conform to the work of the Convention. Article VIII provides that the title of the President "shall be his Excellency." There is no such provision in the Constitution. Article VIII makes exceptions to the appointing power; "ambassadors, other ministers and judges of the Supreme Court" are not to be appointed by the President but by the Senate. This was not one of the "results" arrived at in the Convention. In case of the death of the President and the death of the President of the Senate, "the Speaker of the House of Delegates shall exercise the duties of the office." Here all that Pinckney had to do to make his draught conform was to run his pen through the supplementary clause vesting the succession in the Speaker. The President may be removed from office on impeachment by the House of Delegates and "conviction in the Supreme Court." Here all that Pinckney had to do was to erase "Supreme Court" and insert "Senate." Finally it is to be noted that those expressions and provisions in article VIII which caught the eye of Madison and were characterized as "remarkable" were not "results of critical discussion and modification in the Convention that could not have been anticipated," but were provisions and expressions which had been taken by Pinckney from the constitutions of New York and Massachusetts, generally word for word. The article provides that the President "shall from time to time give information to the legislature of the state of the Union," and "recommend to their consideration" the measures he may think necessary; that "he shall take care that the laws be duly executed"; that "he shall commission all officers"; and "shall nominate and with the consent of the Senate" appoint officers; that "he shall have power to grant pardons and reprieves"; and that "he shall be commander in chief of the army and navy"; but each of these provisions was taken from the constitution of New York. The article also provides that at "entering on the duties of his office he shall take an oath faithfully to execute the duties" of President; and that he "shall be removed from his office on impeachment by the House of Delegates"; but these provisions were taken from the constitution of Massachusetts. The article also provides that "in case of his removal by death, resignation or disability, the President of the Senate shall exercise the duties of his office"; but this is taken from the constitution of New York. In a word when we trace these provisions and expressions to their respective sources there is nothing left of the article. Article VIII is indeed remarkable; but it is for reversing the deductions of Madison; for demonstrating with mathematical certainty (so far as it goes), that Pinckney did not make his draught conform to "results" which had been reached in the Convention, and which "could not have been anticipated." CHAPTER VIII. THE IMPROBABILITIES The most incisive reason given by Madison against the authenticity of the draught in the Department of State, the reason which he most reiterated, if not the one upon which he most relied, was that the draught was presented to the Convention on the 29th May and a week later, June 6th, Pinckney moved "that the first branch of the national legislature be elected by the State legislatures and not by the people." This objection is not only plausible but it rests on two incontrovertible facts each of which is a matter of record--that the draught was presented to the Convention on the 29th of May; that his inconsistent motion was made on the 6th of June. But the conclusiveness of these facts disappears when the circumstances and changed conditions of the case appear. In the first place Pinckney had forestalled the point made by Madison by declaring in his letter to the Secretary of State that there were provisions in the draught which on further reflection he had opposed in the Convention. This declaration, it must be remembered, was made before the publication of Madison's Journal, before it was known that it would be published, before Pinckney knew or could have known what the Journal would show. In other words it was he himself who first revealed his own inconsistency in having presented a plan for one thing in May and in having contended for another thing in June. The explanation is not an afterthought or a defence, but an avowal made in due time. In the second place the draught was presented on the 29th of May, but it was not written then. It must have been written weeks before this in Pinckney's study in Charleston. When he wrote it he had before him, as every American of that day had, the Constitution of Great Britain, the constitution under which he had grown up, the merits and virtues and wisdom and excellencies of which he had read and re-read in Blackstone. It was a matter of course for him, when dealing with the legislative power, to have his Congress consist of two houses. As to this there would not be a doubt or a thought. The next thing would be to have the members of the first house, like the members of the House of Commons, elected by the people. So far he had no reason to pause and reflect. But when he came to the second house, he had no nobility at hand of which it might be composed. Here his invention began, and he avowedly so contrived his Senate that it should in fact though not in form, represent not nobility but wealth. It is probable that when he was draughting his constitution, it never entered his head that the lower house of the American parliament could be chosen by any other means than the means by which the House of Commons was chosen and the lower house of every American State. In the third place between the 29th of May and the 6th of June the subject had come before the Convention and had been discussed and South Carolina had taken a position against it. Gerry of Massachusetts said that "the evils we experience flow from the excess of democracy"; and that "he did not like the election by the people." Butler, of South Carolina, "thought an election by the people an impracticable mode." Rutledge, the strongest man in the State, seconded the motion to have the first branch elected by the State legislatures. Charles Cotesworth Pinckney, the most esteemed citizen of the State and Pinckney's kinsman, brought South Carolina before the Convention as an illustration and even went so far as to say "an election of either branch by the people, scattered as they are in many States, particularly in South Carolina, is totally impracticable." Pinckney was the youngest member of the delegation--much the youngest. He was not yet 30; and, with the exception of Dayton and Mercer was the youngest member of the Convention. It would have been natural for him as a Southerner "to go with his State"--and as a young man to defer to his seniors. And after hearing the debate on the 31st of May and the reasons of his fellow delegates from South Carolina, it was proper for him to change his mind and advocate election by the State legislatures as a better mode. It would have been a matter of wonder if he had not! But there is a letter of George Read which should be considered, for it suggests the question whether this change of Pinckney did not take place before the 29th of May; that is to say before he presented his draught to the Convention. On the 20th of May 1787 Mr. Read wrote from Philadelphia to John Dickinson: "I am in possession of a copied draught of a federal system intended to be proposed if something nearly similar shall not precede it. Some of its principal features are taken from the New York system of government. A house of delegates and senate for a general legislature, as to the great business of the Union. The first of them to be chosen by the legislature of each State, in proportion to its number of white inhabitants, and three-fifths of all others, fixing a number for sending each representative. The second, to-wit the senate, to be elected by the delegates so returned, either from themselves or the people at large, in four great districts, into which the United States are to be divided for the purpose of forming this senate from which, when so formed, is to be divided into four classes for the purpose of an annual rotation of a fourth of the members. A president having only executive powers for seven years." (Read's Life of George Read of Delaware p. 443.) This letter is very far from being conclusive. In the first place it does not appear that Mr. Read had seen the original of this "copied draught" or that Pinckney had given him the copy or had told him what his plan was or that any person who had seen the original draught had told him what it contained. In the second place the existence of an unauthenticated copy on the 20th of May does not conclusively prove that a different version of the same draught was not presented to the Convention on the 29th of May. Still this letter undoubtedly refers to Pinckney's draught and compels a more searching examination of the question raised than would otherwise be necessary. In a paper which will be called, briefly, "the Observations" written by Pinckney before he left Charleston he sets forth at length a description of his plan of government. In the opening paragraph of this paper he says that he will "give each article" of his draught "that either materially varies" from the present government "or is new." He then goes on to say that "the first important alteration is that of the principle of representation." "Representation is a sign of the reality. Upon this principle, however abused, the Parliament of Great Britain is formed, and it has been universally adopted by the States in the formation of their legislatures." This is all which Pinckney, writing before the Convention began its work, had to say concerning the lower house of Congress. His Senate was new and concerning it he had much more to say, and he described it. But of the lower house, the popular body, he had nothing to say save that there would be such a house, and that it would rest upon the principle of representation "universally adopted by the States in the formation of their legislatures." The Virginia resolutions undoubtedly expressed the opinion of substantially all Americans when they said, "Resolved that the members of the first branch of the national legislature ought to be elected by the people of the several States." Assuredly if the draught which Pinckney was then describing had contained the extraordinary and novel proposition that the popular branch of the national legislature, the body which should represent the people, was not to be chosen by the people he would have had something "new" to lay before the Convention--something which did not exist in the government of any English speaking people in the world--something which "materially varied" from the belief and usage and history and traditions of the people who were to ordain this Constitution. Knowing Pinckney as we do--his general views, his adherence to the general principles of the British constitution, his attentive study of State constitutions, his outspokenness, his belief in his own devices, we know that if his draught had then contained so radical a departure from all existing constitutions as that which he subsequently proposed in the Convention, and if he had worked himself into a belief at the time when he wrote the Observations that the election of their representatives by the people was "theoretical nonsense", he could not have refrained from saying so. What is said in the Observations harmonized with the constitutions of every State in the Confederation and with the Virginia resolutions and with the views of every member of the Convention excepting the five great land owners from South Carolina. The Observations, therefore (written before the Convention and published afterwards), sustain the draught in the State Department. The words "the people" appear directly and necessarily in article 3 of the draught: "The Members of the House of Delegates shall be chosen every ---- year by the people of the several States; and the qualifications of the electors shall be the same as those of the electors in the several States for their Legislatures." They reappear casually and needlessly in article 5: "Each State shall prescribe the time and manner of holding elections _by the people_ for the House of Delegates." The draught therefore in these provisions is consistent with itself. In the draught of the Committee of Detail the words of Pinckney's article 3 again appear with some amplification, but in the same order with the same context and with the same intent. Such agreements come not by chance. And if such agreements come not by chance, could Pinckney while he was copying the committee's draught for his own article 3 have written these two troublesome words "the people" without taking heed of their significance, without realizing what he was doing, without remembering that his own draught had said "the _legislatures_ of the several States." He could not! For there is another provision in the draught in the State Department which was not taken from the committee's draught--which did not exist in the committee's draught--which must have been deliberately framed by Pinckney--the provision before quoted from article 5, "Each State shall prescribe the time and manner of holding elections _by the people_ for the House of Delegates." That is to say if Pinckney unintentionally abstracted his article 3 from the committee's draught in 1818, he, nevertheless, must have fabricated designedly his article 5 at the same time; for there is nothing in the committee's draught to suggest it. Then the question immediately arises, What motive could Pinckney have had for falsifying his draught and making this change from the election of delegates by State legislatures to their election by the people of the several States. The answer of the superficial of course will be, "So that the world should believe that he had always been in favor of the election of representatives by the people." No other reason can well be assigned; yet there could not have been such a motive. Pinckney knew that his draught was to be soon published and that with it would be published the official Journal of the Convention and that the publication would disclose to the world this record: "Wednesday, June 6, 1787 "Mr. Gorham in the Chair. "It was moved by Mr. Pinckney, seconded by Mr. Rutledge to strike the word 'people' out of the 4th resolution submitted by Mr. Randolph, and to insert in its place the word 'Legislatures' so as to read 'resolved that the Members of the first branch of the national legislature ought to be elected by the Legislatures of the several States' "and on the question to strike out "it passed in the negative."" If Pinckney's article 3 had really provided that members of the first house should be chosen _by the legislatures_ of the several States, certainly his article 5 would not have provided that "each State shall prescribe the time and manner of holding elections by _the people_." Article 3 laid down the basic principle that representatives were to be chosen by the people, and article 5 provided for the time and manner when and whereby the people should elect their representatives; and article 4 provided that Senators should be chosen, not by the people or the legislatures of the several States, but by the House of Delegates. In all these provisions we again see that the draught in the State Department is consistent with itself. It is possible that the person who gave the "copied draught" to Mr. Read was Pinckney himself; and it is probable that by the 20th of May he had changed his mind concerning the election of delegates by the people and had determined to make his draught conform to the views of his fellow delegates from South Carolina. We know, as will hereafter appear, that he contemplated making many amendments to his draught before presenting it to the Convention; and that he hastily and prematurely presented it on the 29th of May so that it should go with the Virginia resolutions to the Committee of the Whole. The change we are considering may not have been made in the written instrument which he laid upon the Secretary's desk, though he made the change in his own mind. But be that as it may, it is as certain as existing knowledge goes that no man saw the original draught with the words "by the people" twice stricken out and the words "by the legislatures of the several States" twice written in; and until this change in the original draught is shown by positive testimony, unequivocal in terms and above suspicion in character, the circumstantial evidence that the draught went to the Convention with the words "the people" in the 3d and 5th articles is overwhelming. There are some other things specified in the Note not of great importance, but which serve to show how eagerly Madison clutched at anything that would operate as a makeweight against Pinckney and his draught. Article VIII "is remarkable also for the circumstance that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer." This is not a complete statement of the case. The article declares that "the executive power" shall be vested in a President and that "he shall be elected for ---- years." The provisions relating to the President were on their face incomplete. There are virtually two blanks left in the provision, the one relating to the length of the President's term of office, the other to the manner in which he should be chosen. The 12th resolution filled these blanks for a time by saying "seven years" for the one and by "the National legislature" for the other. Here were "results" arrived at in the Convention. That Pinckney did not fill these blanks in the Department copy--blanks so obvious and so easily filled--goes a great way to show that he did not in any place complete his draught by writing into it "results" arrived at in the Convention. It is a strained, artificial conclusion which calls an omission "remarkable" when the instrument is avowedly nothing but an incomplete, tentative draught prepared for the future consideration of its author as well as other persons. Madison notes "variances" between the draught in the Department and the propositions and arguments of Pinckney in the Convention. "Thus in article VIII" he says, Pinckney provides for the impeachment of the President but on the 20th of July he was opposed to "any impeachability of the Executive." "He was sure they _ought not to issue from the legislature who would in that case hold them as a rod over the Executive_." But the draught says much more than Madison repeats. "He shall be removed from his office on impeachment by the House of Delegates _and conviction in the Supreme Court_." Pinckney did not oppose that in the Convention. Madison on his own record clearly had no right to say that Pinckney "was opposed to any impeachability of the Executive." He did not oppose such an impeachability as his draught provided for viz., by the Supreme Court, and his reasons quoted by Madison do not apply to the impeachability provided in his draught. "In article III it is required that all money-bills shall originate in the first branch of the legislature; which he strenuously opposed on the 8th of August and again on the 11th." Here Madison overlooked the significance of these dates. They are subsequent to the report of the Committee of Detail by which report Pinckney's plan for the organization of the Senate had been rejected. Pinckney alluded to this on the 11th when he said, "The rule of representation in the first branch was the true condition to that in the second branch." Neither does it appear in Madison's Journal that he "_strenuously_ opposed." On the 11th he "was sorry to oppose reopening the question," but "he considered it a mere waste of time." On the 8th his opposition had been couched in three lines, "If the Senate can be trusted with the many great powers proposed, it surely can be trusted with that of originating money-bills." Pinckney's real position in regard to this was clearly stated by himself and thus recorded by Madison on Wednesday, June 13th; "Mr. Pinckney thinks the question premature. If the Senate should be formed on the same proportional representation, as it stands at present, they should have equal power. Otherwise a different principle should be introduced." How did the Senate "stand at present," on June 13th. This is shown by the resolutions of the Committee of the Whole of the same day. "That the right of suffrage in the second branch of the national legislature ought to be according to the rule established for the first branch." Resolution 8. The Senate therefore was "at present," a very different representative body than the Senate of Pinckney's draught; and to say on these changed conditions and on the record of what he did say that he "strenuously opposed" the very thing which he had adopted in his draught is a wild use of terms. "In article V, members of each house are made ineligible to as well as incapable of holding any office" a provision, Madison continues, which "was highly disapproved of by him on the 14th of August." What was this disapproval? Article V provides that the members of each house shall not be eligible to office during the time for which they have been respectively elected, "nor the members of the Senate for one year after." This idea that a member of Congress should not hold, during his legislative term of office, an executive office which he had helped to create or the emoluments of which he had helped to increase, undoubtedly existed in many minds. But under the scheme embodied in the Pinckney draught there was a peculiar reason why the ineligibility of Senators should continue after their legislative terms of office had expired. That reason was because (Art. VIII), the Senate was to be an appointing power. It was to "have sole and exclusive power to" "appoint ambassadors, and other ministers to foreign nations, and judges of the Supreme Court." Under this scheme it was obvious that a Senator should not be allowed to step out of office at the expiration of his term on one day and be appointed by his late colleagues to an important office on the next day. It is, therefore, not a surprising thing to find this provision in the draught and to find it applied only to the Senate. On the 14th of August Pinckney had so far modified his own views that he was then in favor of making the members of each House incapable of holding executive salaried offices while they continued members, with a provision that "the acceptance of such office shall vacate their seats respectively." This having failed in Convention, he on the same day urged a general postponement of the subject "until it should be seen what powers should be vested in the Senate" "when," he said, "it would be more easy to judge of the expediency of allowing officers of State to be chosen out of that body." This postponement was agreed to nem. con. It is manifest that the idea of the Senate being an appointing power was still uppermost in his mind. He gave good reasons for not making ineligibility absolute; but he consistently adhered to the idea that the same person should not be both a Legislator and an officer of State. On the 14th of August Pinckney proposed to make members ineligible to hold any office by which they would receive a salary. This was merely a restriction on the original proposition of the draught, a limiting of its application to salaried offices but leaving members eligible and capable of filling honorary positions. To say that his original proposition was thereby "highly disapproved" by him is certainly an abuse of the term "highly disapproved." The objection of Madison when tested by his own record, the Journal, comes down to this: that three months or more after Pinckney wrote the draught, he thought it better to limit the Constitutional prohibition to "salaried offices." This restriction was a trivial and a sensible modification. To infer from it that Pinckney then "highly disapproved" his own original proposition merely marks the nervous excitement which seems to have impelled Madison to exaggerate every little deviation of Pinckney from the strict letter of his draught into conclusive evidence that this draught never existed. This brings us to the extrinsic evidence on which Madison relied, the testimony of Pinckney against himself. CHAPTER IX. THE OBSERVATIONS The Observations of Pinckney, in Madison's estimation, fully sustained his arguments and justified his attacks on the verity of the draught in the State Department. The publication so entitled is a small pamphlet of 27 pages. It has the following title page: Observations on the PLAN OF GOVERNMENT Submitted to the FEDERAL CONVENTION in Philadelphia on the 28th of May, 1787 By Mr. Charles Pinckney Delegate from the State of South Carolina DELIVERED AT DIFFERENT TIMES IN THE COURSE OF THEIR DISCUSSIONS. New York. Printed by Francis Childs Two copies of this are in the library of the New York Historical Society, and it is reprinted in Moore's American Eloquence. It bears no date, but we learn from Madison's letter to Washington (before quoted) that it must have been published before the 14th of October, 1787; that is to say immediately after the dissolution of the Convention on the 17th of September. Madison unquestionably relied upon this pamphlet as containing the highest evidence against the verity of the draught in the State Department. The anxiety which he showed to obtain it, and the care with which he brought it to the attention of those who were or who in the future might be interested in the matter make it plain that he regarded the Observations as a conservatory of admissions which Pinckney would not deny if he were living, and which his friends could not controvert now that Pinckney was dead. The first record we have of Madison's reliance on this pamphlet is a memorandum found among his papers which bears no date but which must have been written prior to April 6th, 1831. "FOR MR. PAULDING" "Much curiosity and some comment have been exerted by the marvellous identities in a plan of Government proposed by Charles Pinckney in the Convention of 1787 as published in the Journals with the text of the Constitution, as finally agreed to. I find among my pamphlets a copy of a small one entitled Observations on the Plan of Government submitted to the Federal Convention, in Philadelphia, on the 28th of May, by Mr. C. Pinckney, a Delegate from S. Carolina, delivered at different times in the Convention. "The copy is so defaced and mutilated that it is impossible to make out enough of the plan, as referred to in the Observations, for a due comparison of it with that printed in the Journal. The pamphlet was printed in N. York by Francis Childs. The year is defaced. It must have been not very long after the close of the Convention, and with the sanction, at least, of Mr. Pinckney himself. It has occurred to me that a copy may be attainable at the printing office, if still kept up, or in some of the libraries or historical collections in the city. When you can snatch a moment, in your walks with other views, for a call at such places, you will promote an object of some little interest as well as delicacy, by ascertaining whether the article in question can be met with. I have among my manuscript papers lights on the subject. The pamphlet of Mr. P. could not fail to add to them. "April, 1831." At some time subsequent to the 6th of April he wrote to Mr. Paulding, saying that in a previous letter "I requested you to make an inquiry concerning a small pamphlet of Charles Pinckney printed at the close of the Federal Convention of 1787;" and on the 6th of June he again wrote to Mr. Paulding, "June 6th, 1831. "DEAR SIR.--Since my letter answering yours of April 6th, in which I requested you to make an inquiry concerning a small pamphlet of Charles Pinckney printed at the close of the Federal Convention of 1787, it has occurred to me that the pamphlet might not have been put in circulation, but only presented to his friends, etc. In that way I may have become possessed of the copy to which I referred as in a damaged state. On this supposition the only chance of success must be among the books, etc., of individuals on the list of Mr. Pinckney's political associates and friends. Of those who belonged to N. York, I recollect no one so likely to have received a copy as Rufus King. If that was the case, it may remain with his representative, and I would suggest an informal resort to that quarter, with a hope that you will pardon this further tax on your kindness." On the 27th of June he wrote to Mr. Paulding for the third time regarding the Observations: "June 27th, 1831. "DEAR SIR:--With your favor of the 20th instant I received the volume of pamphlets containing that of Mr. Charles Pinckney, for which I am indebted to your obliging researches. The volume shall be duly returned, and in the mean time duly taken care of. I have not sufficiently examined the pamphlet in question, but I have no doubt that it throws light on the subject to which it has relation." On the 25th of November he wrote at length to Jared Sparks setting forth all his objections to the draught and added: "Further discrepancies might be found in the observations of Mr. Pinckney, printed in a pamphlet by Francis Childs, in New York, shortly after the close of the Convention. I have a copy too mutilated for use, but it may probably be preserved in some of your historical repositories." On the 5th of June 1835 he wrote to Judge Duer: "Other discrepancies will be found in a source also within your reach, in a pamphlet published by Mr. Pinckney soon after the close of the Convention, in which he refers to parts of his plan which are at variance with the document in the printed Journal. A friend who has examined and compared the two documents has pointed out the discrepancies noted below." Then follows the list of discrepancies "pointed out" by "a friend"; and in this letter he refers Judge Duer to the library of the Historical Society of New York as the place where a copy of the Observations can be found. The following paragraphs from the Observations contain all that bears upon the contents of the draught, and all upon which Madison relied. "There is no one, I believe, who doubts there is something particularly alarming in the present conjuncture. There is hardly a man in or out of office, who holds any other language. Our Government is despised--our laws are robbed of their respected terrors--their inaction is a subject of ridicule--and their exertion, of abhorrence and opposition--rank and office have lost their reverence and effect--our foreign politics are as much deranged, as our domestic economy--our friends are slackened in their affection, and our citizens loosened from their obedience. We know neither how to yield nor how to enforce--hardly any thing abroad or at home is sound and entire--disconnection and confusion in offices, in States and in parties, prevail throughout every part of the Union. These are facts universally admitted and lamented." "Be assured that however unfashionable for the moment your sentiments may be, yet, if your system is accommodated to the situation of the Union, and founded in wise and liberal principles, it will in time be consented to. An energetic government is our true policy, and it will at last be discovered and prevail." "Presuming that the question will be taken up de novo, I do not conceive it necessary to go into minute detail of the defects of the present confederation, but request permission to submit, with deference to the House, the draught of a government which I have formed for the Union. The defects of the present will appear in the course of the examination. I shall give each article that either materially varies or is new. I well know the science of government is at once a delicate and difficult one, and none more so than that of republics. I confess my situation or experience have not been such as to enable me to form the clearest and justest opinions. The sentiments I shall offer are the result of not so much reflection as I could have wished. The plan will admit of important amendments. I do not mean at once to offer it for the consideration of the House, but have taken the liberty of mentioning it, because it was my duty to do so. "The first important alteration is that of the principle of representation and the distribution of the different powers of government. In the federal councils, each State ought to have a weight in proportion to its importance; and no State is justly entitled to greater. A representation is a sign of the reality. Upon this principle, however abused, the Parliament of Great Britain is formed, and it had been universally adopted by the States in the formation of their legislatures." "In the Parliament of Great Britain as well as in most and the best instituted legislatures of the States, we find not only two branches, but in some a council of revision, consisting of their executive and principal officers of government. This I consider as an improvement in legislation, and have therefore incorporated it as a part of the system. "The Senate, I propose to have elected by the House of Delegates, upon proportionable principles, in the manner I have stated, which though rotative, will give a sufficient degree of stability and independence. The districts, into which the Union is to be divided; will be so apportioned as to give to each its due weight, and the Senate, calculated in this, as it ought to be in every government, to represent the wealth of the nation. "The executive should be appointed septennially, but his eligibility ought not to be limited: He is not a branch of the legislature farther, than as a part of the council of revision; and the suffering him to continue eligible will not only be the means of ensuring his good behavior, but serve to render the office more respectable. "The 4th article, respecting the extending the rights of the citizens of each State throughout the United States; the delivery of fugitives from justice upon demand, and the giving full faith and credit to the records and proceedings of each, is formed exactly upon the principles of the 4th article of the present confederation, except with this difference, that the demand of the Executive of a State for any fugitive criminal offender shall be complied with. It is now confined to treason, felony, or other high misdemeanor; but as there is no good reason for confining it to those crimes, no distinction ought to exist, and a State should always be at liberty to demand a fugitive from its justice, let his crime be what it may. "The 5th article, declaring that individual States shall not exercise certain powers, is also founded on the same principle as the 6th of the confederation. "The next is an important alteration of the Federal system, and is intended to give the United States in Congress, not only a revision of the legislative acts of each State, but a negative upon all such as shall appear to them improper. "I apprehend the true intention of the States in uniting is, to have a firm, national government, capable of effectually executing its acts, and dispensing its benefits and protection. In it alone can be vested those powers and prerogatives which more particularly distinguish a sovereign State. The members which compose the superintending government are to be considered merely as parts of a great whole, and only suffered to retain the powers necessary to the administration of their State systems. The idea which has been so long and falsely entertained of each being a sovereign State, must be given up; for it is absurd to suppose there can be more than one sovereignty within a government. The States should retain nothing more than that mere local legislation, which, as _districts_ of a general government, they can exercise more to the benefit of their particular inhabitants, than if it was vested in a Supreme Council; but in every foreign concern as well as in those internal regulations, which respecting the whole ought to be uniform and national, the States must not be suffered to interfere. No act of the Federal Government in pursuance of its constitutional powers ought by any means to be within the control of the State Legislatures; if it is, experience warrants me in asserting they will assuredly interfere and defeat its operation. "The next article proposes to invest a number of exclusive rights, delegated by the present confederation, with this alteration: that it is intended to give the unqualified power of raising troops, either in time of peace or war, in any manner the Union may direct. It does not confine them to raise troops by quotas on particular States, or to give them the right of appointing regimental officers, but enables Congress to raise troops as they shall think proper, and to appoint all the officers. It also contains a provision for empowering Congress to levy taxes upon the States, agreeable to the rule now in use, an enumeration of the white inhabitants, and three-fifths of other descriptions. "The 7th article invests the United States with the complete power of regulating the trade of the Union, and levying such imposts and duties upon the same, for the use of the United States, as shall in the opinion of Congress, be necessary and expedient. "The 8th article only varies so far from the present, as in the article of the Post Office, to give the Federal Government a power not only to exact as much postage as will bear the expense of the office, but also for the purpose of raising a revenue. Congress had this in contemplation some time since, and there can be no objection, as it is presumed, in the course of a few years the Post Office will be capable of yielding a considerable sum to the public treasury. "The 9th article, respecting the appointment of Federal courts for deciding territorial controversies between different States, is the same with that in the confederation; but this may with propriety be left to the supreme judiciary. "The 10th article gives Congress a right to institute all such offices as are necessary for managing the concerns of the Union; of erecting a federal judicial court for the purposes therein specified; and of appointing courts of Admiralty for the trial of maritime causes in the States respectively. "The exclusive right of coining money--regulating its alloy, and determining in what species of money the common treasury shall be supplied--is essential to assuring the federal funds. "In all those important questions, where the present confederation has made the assent of nine States necessary, I have made the assent of two-thirds of both Houses, when assembled in Congress, and added to the number the regulation of trade, and acts for levying an impost and raising a revenue. "The exclusive right of establishing regulations for the government of the militia of the United States, ought certainly to be vested in the federal council. "The article empowering the United States to admit new States into the confederacy is become indispensable, from the separation of certain districts from the original States--and the increasing population and consequence of the western territory. I have also _added an article_ authorizing the United States, upon the petition from the majority of the citizens of any State or convention authorized for that purpose, and of the legislature of the State to which they wish to be annexed, or of the States among which they are willing to be divided, to consent to such junction or division, on the term mentioned in the article. "The Federal Government should also possess the exclusive right of declaring on what terms the privileges of citizenship and naturalization should be extended to foreigners. "The 16th article proposes to declare that if it should hereafter appear necessary to the United States to recommend the grant of any additional powers, that the assent of a given number of the States shall be sufficient to invest them and bind the Union as fully as if they had been confirmed by the legislatures of all the States. The principles of this, and the article which provides for the future alteration of the Constitution by its being first agreed to in Congress, and ratified by a certain proportion of the legislatures, are precisely the same. "There is also in the articles a provision respecting the attendance of the members of both Houses; it is proposed that they shall be the judges of their own rules and proceedings, _nominate their own officers_, and be obliged, after accepting their appointments, to attend the stated meetings of the legislature; the penalties under which their attendance is required, are such as to insure it, as we are to suppose no man would willingly expose himself to the ignominy of a disqualification. "The next article provides for the privilege of the writ of habeas corpus--the trial by jury in all cases, criminal as well as civil--the freedom of the press and the prevention of religious tests as qualifications to offices of trust or emolument. "There is also an authority to the national legislature, permanently to fix the seat of the general government, to secure to authors the exclusive right to their performances and discoveries, and to establish a Federal University. "There are other articles, but of subordinate consideration. In opening the subject, the limits of my present observations would only permit me to touch the outlines; in these I have endeavored to unite and apply, as far as the nature of our Union would permit, the excellencies of such of the States' Constitutions as have been most approved. "I ought again to apologize for presuming to intrude my sentiments upon a subject of such difficulty and importance. It is one that I have for a considerable time attended to. I am doubtful whether the convention will, at first be inclined to proceed as far as I have intended; but this I think may be safely asserted, that upon a clear and comprehensive view of the relative situation of the Union, and its members, we shall be convinced of the policy of concentring in the federal head, a complete supremacy in the affairs of government; leaving only to the States such powers as may be necessary for the management of their internal concerns." The first comment to be made on this speech of Pinckney's is _that it was never made, and that no speech whatever was made by him when he presented his draught to the Convention_. Upon this question of fact there are two witnesses, Madison and Yates. The evidence which they have left to us is negative and positive, the one showing inferentially, what could not have occurred in the Convention on the 29th of May 1787 and the other stating positively what did occur; the one absolutely silent as to any speech by Pinckney; the other telling us that "_Mr. Pinckney a member from South Carolina then added that he had reduced his ideas of a new government to a system which he then read_." Madison has written for us an account of the manner in which he took his notes and wrote out his Journal--a most interesting account, showing us the method he pursued, the efforts which he made, and reminding us how much we owe him for his fidelity to his self-imposed task. "The curiosity I had felt during my researches into the history of the most distinguished confederacies, particularly those of antiquity, and the deficiency I found in the means of satisfying it, more especially in what related to the process, the principles, the reasons, and the anticipations, which prevailed in the formation of them, determined me to preserve, as far as I could, an exact account of what might pass in the Convention whilst executing its trust; with the magnitude of which I was duly impressed, as I was by the gratification promised to future curiosity by an authentic exhibition of the objects, the opinions, and the reasonings from which the new system of government was to receive its peculiar structure and organization. Nor was I unaware of the value of such a contribution to the fund of materials to the history of a Constitution on which would be staked the happiness of a people great even in its infancy, and possibly the cause of liberty throughout the world. "In pursuance of the task I had assumed, I chose a seat in front of the presiding member, with the other members on my right and left hands. In this favorable position, for hearing all that passed, I noted in terms legible, and in abbreviations and marks intelligible to myself, what was read from the chair or spoken by the members; and losing not a moment unnecessarily between the adjournment and reassembling of the Convention, I was enabled to write out my daily notes during the session, or within a few finishing days after its close, in the extent and form preserved, in my own hand, on my files. "In the labor and correctness of this, I was not a little aided by practice, and by a familiarity with the style and the train of observation and reasoning which characterized the principal speakers. It happened, also, that I was not absent a single day, nor more than a casual fraction of an hour in any day, so that _I could not have lost a single speech, unless a very short one_." Yates was at the time of writing his Minutes 49 years of age. During the Revolution he had written political essays highly esteemed over the signature of the Rough Hewer. He had been for eleven years a judge of the Supreme Court of New York--a judge of the old school before the days of stenographers and printed arguments and was well trained in taking notes of what counsel said. The Minutes of Yates are manifestly the work of a man accustomed to take down the ideas rather than the words of public speakers. His reports of the debates are briefer than Madison's showing much less of the reporter and much more of the lawyer or judge accustomed to analyze and to note the scope and sense of an argument. His report of the chief speech of Pinckney, that of June 25th, when compared with the full speech written out by Pinckney for Madison is a remarkably clear and accurate and full abstract. It is also valuable as giving us an abstract of the conclusion of the speech which Pinckney neglected to furnish. Madison says in his letter to Judge Duer, "Mr. Yates's notes as you observe are very inaccurate; they are also in some respects grossly erroneous." There are indeed mistakes resulting from his non-acquaintance with the delegates; and especially in his confusing the names of the two Pinckneys, the first name of each being the same as the first name of the other and both being delegates from the same State. But be that as it may, Yates correctly characterized the speech of Randolph as "long and elaborate," and Pinckney's draught as a "system" of a "new government"; and he certainly knew enough to distinguish between the delivery of a long speech and the reading of a formal document. The fact therefor must be regarded as established as firmly as any fact recorded in the annals of the Convention that on the day when Pinckney presented his draught to the Convention he did not deliver and could not have delivered a speech making 27 pages of printed matter. There is another fact to be considered in connection with the foregoing. Between the opening statements of the Observations and the title to the pamphlet there is a flat contradiction. In the speech he says expressly that the "plan will admit of important amendments"; that he does "not mean to offer it for the consideration of the House"; that he has "taken the liberty of mentioning it because it was his duty to do so." In the title to the pamphlet he says, "Plan of Government submitted to the Federal Convention in Philadelphia on the 28th of May 1787." It is plain that the speech and its title were written at different times and that in this the two are irreconcilable. It is also plain that Pinckney when he wrote a title for the printer in New York had forgotten the detail of the contents of the speech and did not take the trouble to examine it. We may therefore conclude that the two events were far apart, the one having taken place in Charleston before the assembling of the Convention and the other taking place in New York when the publication of the speech required that a title should be given to it. Furthermore the title to the speech contains a significant error in saying that the plan of government was submitted to the Convention "on the 28th of May"; for the first days of the Convention were not days to be quickly forgotten. The day fixed for the meeting of the delegates in Convention was Monday, May 14th 1787. Washington, notwithstanding his painful illness during the winter and the expected death of his mother was among the first who arrived in Philadelphia. On the 27th of April he had written to Knox, "Though so much afflicted with a Rheumatick complaint (of which I have not been entirely free for Six months) as to be under the necessity of carrying my arm in a Sling for the last ten days, I had fixed on Monday next for my departure, and had made every necessary arrangement for the purpose when (within this hour) I am called by an express, who assures me not a moment is to be lost, to see a mother and only sister (who are supposed to be in the agonies of Death) expire; and I am hastening to obey this Melancholy call, after having just buried a Brother who was the intimate companion of my youth, and the friend of my ripened age. This journey of mine then, 100 miles, in the disordered frame of my body, will, I am persuaded, unfit me for the intended trip to Philadelphia." But Washington, though he knew it not, was then approaching the verge of his third cycle of illustrious service rendered to his country--"the country he assembled out of chaos." Madison writing to Jefferson, then in Paris, on Tuesday, the 15th of May, happily recorded the fact that Washington, true to his life record, was on the ground when he should have been: "Monday last was the day for the meeting of the Convention. The number as yet assembled is but small. Among the few is General Washington who arrived on Sunday evening, amidst the acclamations of the people, as well as more sober marks of the affection and veneration which continue to be felt for his character." But a quorum of lesser men did not appear until Friday May 25th. On that day nine States were represented by twenty-nine delegates among whom was Charles Pinckney on whose motion a committee was appointed, of which he was one, to prepare standing rules and orders. The only other business was the election of Washington as President and Major William Jackson as Secretary. On Monday May 28th the Convention next met when "Mr. Wythe, from the committee for preparing rules made a report which, employed the deliberations of this day." Tuesday May 29th was the great day when Randolph "opened the main business" and presented the Virginia resolutions, and Pinckney "laid before, the House the draught of a Federal Government." These were not days to be easily confounded. But between the presentation of the draught to the Convention and the writing of the title for the printer in New York four months had elapsed crowded with labor and excitement, and Pinckney had forgotten the date of the most eventful day of his life. The error of this date means a great deal. In his letter to the Secretary of State covering the draught in the Department, Pinckney says that he has then four or five draughts of the Constitution in his possession. It is certain that the draught in the Department conforms much more closely to the draught which he presented to the Convention than to the draught which he describes in the Observations. If we consider the facts established (as we must) that the Observations were written before the assembling of the Convention, that they were written many months before their publication, that they were not examined or revised when they were published, it is easily within the range of possibilities, if not of probabilities, that the draught which formed the "text of the discourse" was one of the four or five which Pinckney had drawn at various times and was not the one which he finally submitted to the Convention. If the Observations were what they pretend to be the text of a real speech actually spoken at the time when Pinckney was about to present his draught to the Convention they would be very good secondary evidence of the contents of the paper which he held in his hand and which he then and there presented, and thereby parted company with. But a speech which was never spoken to suppositional auditors who never heard it, is not a public declaration of the contents of another paper. The Observations are not a speech because they are cast in the form of a speech. They are simply a paper which may have been written in Charleston before the assembling of the Convention, or (possibly) in New York after the Convention had been dissolved, and whenever written Pinckney may have had before him another of the four or five constitutions which he had draughted. With the uncovering of the fact that this paper was not contemporaneous, and that it did not necessarily refer to the particular copy of the draught which Pinckney presented to the Convention on the 29th of May, the supposed value of the Observations as evidence to impeach the integrity of the draught in the State Department is blown to pieces. If this were a suit between Madison and Pinckney it might be held that Pinckney would be estopped from questioning the veracity of the paper which he wrote and made public, or the actuality of the facts which it sets forth. But an estoppel which in the words of Coke, "concludeth a man to alleage the truth" does not extend to the student of Constitutional history. He is not a party to that record and is at liberty to use it for what it may be worth against Pinckney or for Pinckney, to overthrow the draught or to substantiate the draught--to use it in any way which will tend to clear the situation from error, and authenticate the true history of the Constitution. Madison in his "Note to the Plan" regarded article VIII as "remarkable also for the circumstance that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer." The plain unquestionable purpose of Madison when so writing was to impress upon the American mind the improbability, the almost impossibility, of Pinckney's having neglected to provide for the election of the President while actually establishing the office and defining the functions of the officer; and hence that the paper which is so remarkable for the omission cannot be a true copy of the one presented to the Convention; and the inevitable inference from this is that the real draught, the one presented to the Convention on the 29th of May contained and must have contained, and could not have overlooked the needed provision declaring how the President should be chosen. The choosing of the President by means of electoral colleges in which each State should have a proportionate power equal to its total representation in the two houses of Congress was one of the notable compromises between the large and small States; and what Madison says must excite the curiosity of the Constitutional student to know in what manner Pinckney provided in his draught for the choosing of the President and whether he attempted a compromise. The original draught is lost; but here Madison appears with the Observations which he fortunately saw in 1787 and which he fortunately remembered in 1831 and which, remembering, he brought to light and made an authority; and these Observations, according to Madison, presumptively set forth what the original draught contained so fully and accurately that upon the faith of them we can and must reject the copy of the draught which Pinckney produced and placed in the State Department. Therefore we may turn to the Observations with unusual interest to ascertain whether Pinckney provided, and in what manner he provided, for the choosing of the President. We find that the Observations are as silent as the draught in the State Department. They are not more silent however. If the Observations said nothing and were absolutely silent on the subject of the President, it might be a casual oversight of the writer. But the Observations agree with article VIII; both recognize the Executive as vested in one person; both limit his term of office, the one to seven, the other to ---- years; both expressly declare that he shall be re-eligible; both are silent as to the means by which he shall be chosen. The Observations here are little more than a paraphrase of article VIII. Madison regarded the omission to provide for so vitally important a thing as the choosing of the President as "remarkable"; but the more remarkable the omission, the more significant the coincidence. The explanation of Pinckney's conduct and of the contradictions between his statements in the Observations and the facts appearing on the records of the Convention, including in the term the Madison Journal and the Yates Minutes is, I think, the following: The first business day of the Convention, probably, was the most impressive day of all its sittings. There were less than forty delegates present but among them were the most distinguished men of the country; Washington, Hamilton, Rufus King, David Brearly, both Robert and Gouverneur Morris, George Read, George Mason, George Wythe, John Rutledge, John Dickinson and Elbridge Gerry. A painful anxiety existed concerning everything which lay before them--the method of procedure, the specific subjects to be considered, the prejudices of the different States, the views and plans and projects of the different members. Randolph, as heretofore has been said, opened the great business which was to result either in the formation of a National government or in the dissolution of the feeble Confederation which existed, by the presentation of the abstract propositions which the delegates from Virginia had formulated for the consideration of the Convention, and by a masterly address in which he set forth the perils of the hour and the difficulties to be overcome. When he concluded his solemn and philosophical exposition of the impending problems the Convention adjourned as well it might. Pinckney must have been impressed by this. He had studied the field long and intelligently; but there were now waters before him which were beyond his depth--difficulties which he had not considered; prejudices and jealousies for which he had formulated no compromise. It was not the time for the man believed to be the youngest member to harangue the Convention on his scheme for a new government. Pinckney unquestionably had prepared a written speech in his study in Charleston. It was his strategic purpose to deliver the speech at the opening of the Convention and draw forth expressions of opinion concerning his scheme for a National government, after which he would modify his plan and when modified to suit himself or to suit a majority of the members, he would present it. But when the time came to speak he saw that the Convention was in no humor to listen to an oration about his plan, and that the business before them would be the consideration and discussion of abstract propositions one by one as set forth in the Virginia resolutions, and that no plan would be considered until the delegates should learn by intelligent discussion what they wanted to formulate. He therefore wisely reversed his strategy, withholding the speech but presenting the draught, thereby placing himself on the record and establishing what in patent law would be called priority of invention. After the great work was done and the Constitution had gone forth to the world Pinckney knew that his draught was buried in the secrecy of the proceedings. He too, like many another effusive young man, may have thought his speech too good to be lost. Certainly he could not resist the temptation of revealing what he had written and of recording the great part he had played among the eminent actors in the Convention. He avoided violating the pledge of secrecy by revealing no act or proceeding of the Convention, not even that his plan had been presented and referred. And it is fair to say that while he acted like a boy, he also gave out the full record in a manly way. The absurdities in his draught, as some of his provisions must have seemed to many intelligent men, were set forth; the provisions which failed were set forth; the propositions which he himself had abandoned and opposed were set forth. There was no tampering with the record. There are passages in some of his imperfectly reported speeches in the Convention which bear some resemblance to his discursive rhetorical flights in the Observations, and these he may have thought justified the title with which he prefaced the publication. The two lines on the title page, "Delivered at different Times in the course of their Discussions," are in very small type and appear much as if they had been crowded into a printer's proof--as if they had been an afterthought. But however that may be one thing is certain, that the speech setting forth the contents of his plan was never made in the Convention. The Observations sustain the draught in the State Department in matters of substance, but not in order and arrangement. The Observations also allude to provisions which are not in the draught in the State Department, provisions which may or may not have been in the draught which was presented to the Convention; and these I shall subsequently examine. As to the variance in order and arrangement there are two things which should be considered: First: as a matter of antiquarian research it would be interesting and satisfactory to ascertain that the one draught was a facsimile or exact duplicate of the other; but where the purpose of the inquiry (as in this case) is to ascertain what contributions the draught of Pinckney made to the Constitution of the United States, it is wholly immaterial whether one provision followed another or preceded it, or was far removed from it. The second thing to be remembered is that the draught of the Committee of Detail, so far as it agrees in order and arrangement with the draught in the State Department furnishes us with presumptive evidence of the order and arrangement in the draught which was presented to the Convention. A comparison of the two will show that the variances are so trivial that they are not worthy of further consideration. As we have seen (chapter VI) Madison did not cite the Observations in the "Note of Mr. Madison to the plan of Charles Pinckney," but did prepare a footnote for the Note to be appended to and published with it by his future editor who he then believed would be Mrs. Madison. Why he did not cite or set forth in his own Note the "striking discrepancies" set forth in the footnote, but planned and arranged that they should be brought before the public by his editor has seemed inexplicable hitherto. The reason is now plain--he did not wish to assume the responsibility of citing the pamphlet of Pinckney because he knew that it consisted of a speech which was never made. Madison cited the Observations and the eighth article and the fifth article of Pinckney's draught to secure its condemnation; but of each he might say as Balak the son of Zippor said to the prophet of old, "I took thee to curse mine enemies and behold thou hast blessed them!" He hunted for the Observations; he found them; he brought them to the knowledge of men, he appealed to them, he made them an authority by which Pinckney should be judged out of his own mouth; and lo! they furnish the strongest confirmation of the verity of the draught which he attacked. The Observations seem to have been a fateful thing, fatal to whichever party relied upon them. Madison exhumed them and believed that they would destroy the pretensions of Pinckney and vindicate himself--and they have but demonstrated the superficiality of his own investigation and the baselessness of his deductions. Pinckney fearing that the part which he had played in the Convention would never be known, that his great contribution to the Constitution might never receive so much as the notice of men, impelled by his boyish egoism and by what Madison called with reference to another contemporaneous publication, "his appetite for expected praise," improperly laid them before the world--and they have done more than any other one thing to smirch his good name and bury in oblivion the great work of his life. CHAPTER X THE SILENCE OF MADISON Up to this point the draught in the State Department has been considered precisely as Madison desired it should be considered; that is to say upon his objections. The inquiry moreover has been confined to the final indictment which he drew up, to-wit, the "Note of Mr. Madison to the Plan of Charles Pinckney," and to the evidence which he adduced to sustain it, to-wit Pinckney's Observations and letter and Madison's Journal of the Convention. But there is another chapter which must be considered, a chapter of facts and circumstances forming an unseen part of the strategy which his cautious policy supplied. In his letters to Sparks and the others as in the final "Note," there is a studious comparison instituted between the draught in the State Department and the Constitution itself. There is also an argument implied that the draught in the Department cannot possibly be identical with the draught presented to the Convention because it contains some provisions which Pinckney opposed in the Convention. A student whose inquiries were limited to early editions of Madison's Writings might draw from them two extenuating inferences, the first of which would be that the weakened memory of age and infirmity had failed to bring before Madison the proper instrument for comparison, the draught of the Committee of Detail; the second that he had never heard of Pinckney's letter to the Secretary of State and knew not that Pinckney had notified the Secretary that the copy which he sent was not a literal reproduction of the lost draught and that it, like the original, contained provisions which on further reflection he had opposed in the Convention. In the spring of 1830 Mr. Jared Sparks passed a week with Madison at Montpelier and on his return to Washington sent to him the following letter: "WASHINGTON, May 5th, 1830. "Since my return I have conversed with Mr. Adams concerning Charles Pinckney's draught of a constitution. He says it was furnished by Mr. Pinckney, and that he has never been able to hear of another copy. It was accompanied by a long letter (written in 1819) now in the Department of State, in which Mr. Pinckney claims to himself great merit for the part he took in framing the constitution. A copy of this letter may doubtless be procured from Mr. Brent, should you desire to see it. Mr. Adams mentioned the draught once to Mr. Rufus King, who said he remembered such a draught, but that it went to a committee with other papers, and was never heard of afterwards. Mr. King's views of the subject, as far as I could collect them from Mr. Adams, were precisely such as you expressed." Here it may be noted that what Mr. Adams heard from Mr. King is recorded in his Memoirs, May 4, 1830, Vol. VIII, p. 225. It is only what Sparks reported to Madison. Mr. King had not seen the draught, and had not heard any one narrate what its provisions were. Indeed his doubts and suspicions seem to have been founded on no other fact than that he did not hear it talked about. Like Madison, he was a witness who could testify to nothing, not even to hearsay. On the 24th of May, 1831, Mr. Sparks, who was then at work on his life of Gouveneur Morris, again wrote to Madison. "BOSTON, May 24, 1831. "In touching on the Convention, I shall state the matter relating to Mr. Pinckney's draught, as I have heard it from you, and from Mr. Adams as reported to him by Mr. King. Justice and truth seem to me to require this exposition. I shall write to Charleston, and endeavor to have the draught inspected, which was left by Mr. Pinckney. Your explanation, that he probably added particulars as they arose in debate, and at last forgot which was original and what superadded, is the only plausible way of accounting for the mystery, and it may pass for what it is worth. Should anything occur to you, which you may think proper to communicate to me on the subject, I shall be well pleased to receive it." Madison felt so solicitous about the inquiry in Charleston that on the 21st of June he wrote to Sparks, asking to be informed of the result "as soon as it is ascertained." But on the 16th of June Sparks had written to Madison the following letter which could not have reached him when he wrote on the 21st. "BOSTON, June 16th, 1831. "I have procured from the Department of State a copy of the letter from Mr. Charles Pinckney to Mr. Adams, when he sent his draught for publication. This letter is so conclusive on the subject that I do not think it necessary to make any further inquiry. It is evident, that the draught, which he forwarded, was a compilation made at the time from loose sketches and notes. The letter should have been printed in connexion with the draught. I imagine Mr. Pinckney expected it. He does not pretend that this draught was absolutely the one he handed into the Convention. He only 'believes' it was the one, but is not certain. "Should you have leisure, I beg you will favor me with your views of this letter. It touches upon several matters respecting the history and progress of the Convention. Do these accord with your recollection? I would not weary or trouble you, but when you recollect that there is no other fountain to which I can go for information, I trust you will pardon my importunity." When Sparks wrote his hasty letter of June 16th he was evidently writing under two misapprehensions. The first was that he supposed the question involved was whether the draught on file was an exact copy of the lost original; the second was that its verity depended entirely on Pinckney's accompanying letter. To his inquiry what did Madison think of that letter, Madison made no reply. But in the course of the next five months Sparks cleared his mind of the above misapprehensions and freed himself from the authority of Madison's opinion; and his strong and well trained mind analysed the facts involved and grasped the real problem of the case. This analysis and this problem he set clearly before Madison in the following letter. "BOSTON, November 14th, 1831. "My mind has got into a new perplexity about Pinckney's Draught of a Constitution. By a rigid comparison of that instrument with a Draught of the Committee reported August 6th they are proved to be essentially, and almost identically, the same thing. It is impossible to resist the conviction, that they proceeded from one and the same source. "This being established, the only question is, whether it originated with the committee, or with Mr. Pinckney, and I confess that judging only from the face of the thing my impressions incline to the latter. Here are my reasons. "1. All the papers referred to the committee were Randolph's Resolutions as amended, and Patterson's Resolutions and Pinckney's Draught without having been altered or considered. The committee had them in hand nine days. Their Report bears no resemblance in form to either of the sets of resolutions, and contains several important provisions not found in either of them. Is it probable that they would have deserted these, particularly the former, which had been examined seriatim in the convention, and struck out an entirely new scheme (in its form) of which no hints had been given in the debates? "2. The language and arrangement of the Report are an improvement upon Pinckney's Draught. Negligent expressions are corrected, words changed and sentences broken for the better. In short, I think any person examining the two for the first time, without a knowledge of circumstances, or of the bearing of the question, would pronounce the Committee's Report to be a copy of the Draught, with amendments in style, and a few unimportant additions. "3. If this conclusion be not sound, it will follow that Mr. Pinckney sketched his draught from the Committee's Report, and in so artful a manner as to make it seem the original, a suspicion I suppose not to be admitted against a member of the Convention for forming the Constitution of the United States. "Will you have the goodness to let me know your opinion? If I am running upon a wrong track I should be glad to get out of it, for I like not devious ways, and would fain have light rather than darkness. "P.S.--You may be assured, Sir, that I have no intention of printing anything on this subject, nor of using your authority in any manner respecting it. I am aware of the delicate situation in which such a step would place you, and you may rely upon my discretion. I am greatly puzzled, however, in respect to the extraordinary coincidence between the two draughts. Notwithstanding my reasons above given, I cannot account for the committee's following any draught so servilely, especially with Randolph's Resolutions before them, and Randolph himself one of their number.--I doubt whether any clear light can be gained, till Pinckney's original draught shall be found, which is probably among the papers of one of the committee. It seems to me that your secretary of the convention was a very stupid secretary, not to take care of these things better, and to make a better Journal than the dry bones that now go by that name." This letter set forth the real elements of the case, elements incontrovertible and absolutely certain--that Pinckney's draught was referred to the Committee of Detail; that it was never considered in the Convention; that the period within which the Committee framed their draught was a brief one; that the Committee's draught bears no resemblance in form to the resolutions of the Convention and contains provisions not found in them; that the Committee so departed from the resolutions, though Randolph himself was one of their number, and struck out an entirely new scheme in form of which no hint had been given in the debates and that the Committee's draught in form, language and arrangement appears to be a copy of Pinckney's with amendments and additions. From these sure premises Sparks deduced two alternative conclusions; "I think any person examining the two [draughts] for the first time without a knowledge of the circumstances or of the bearing of the question would pronounce the Committee's report to be a copy of the draught with amendments in style and a few unimportant additions," "or that _Mr. Pinckney sketched his draught from the Committee's, and in so artful a manner as to make it seem the original, a suspicion I suppose not to be admitted against a member of the convention_." In the second clause of the latter alternative Sparks with admirable sagacity applied the most delicate test that could be applied to the matter. He brings the dilemma down to this: The Committee must have used Pinckney's draught or Pinckney must have sketched his draught from the Committee's; and more than that, he must have sketched it "_in so artful a manner as to make it seem the original_." When one instrument is fashioned after another the natural and even unconscious action of the mind is to correct and improve. It is a going forward toward a desirable result. To fashion the second instrument after the first but in such a manner that in many details there would be an unfailing inferiority would be a going backward. This inferiority in detail runs through the Pinckney draught as has repeatedly been shown before. When Sparks wrote the word "artful" he used the right word, the word which controlled the situation--"in so artful a manner as to make it seem the original" most accurately defines what Pinckney did in Charleston in 1818 if he then fabricated a new draught. Of course such a fabrication was possible but it would have required a literary forger with a genius for literary forgery to have taken the Committee's draught and given these artless imperfections--these delicate touches of inferiority to the copy for the State Department. To the specific charge that Pinckney must have sketched his draught "in so artful a manner as to make it seem the original" if it was not what he had represented it to be, Madison made no reply. Sparks had narrowed the issue to this, "Did the Committee follow Pinckney's draught or did Pinckney use the Committee's?" But Madison evaded the issue. Sparks had shown that the Committee did not confine themselves to results arrived at after discussion in the Convention; but that they had incorporated in their draught "important provisions not found in either" set of resolutions, and he called Madison's attention "to the extraordinary coincidence between the two draughts;" and he added that he could not "account for the Committee following any draught so servilely, especially with Randolph's resolutions before them, and Randolph himself one of their number." It was for Madison then to meet this issue and show definitely where the Committee got the many new provisions of their draught, important and unimportant, if they did not get them from the Pinckney draught. On the 25th of November, 1831, Madison replied at length to Sparks' letter but he said not a word about the draught of the Committee or of Pinckney's letter to the Secretary of State. His answer was in effect, "Impossible!" Sparks did not acknowledge the receipt of the letter until the 17th of January, 1832, and then the acknowledgment was called out by a letter from Madison of January 7th. He yielded a reluctant assent, manifestly in deference to Madison, that "this letter seems to me conclusive, but" (he immediately adds), "I am still a good deal at a loss about the first draught of the Committee. The history of the composition of the draught would be a curious item in the proceedings of the Convention." Here Sparks again put his finger on one of the things that needed explanation, "the composition of the draught." His sagacious mind grasped the fact that the structure of the draught of the Constitution--of the Constitution itself, would indeed be a "curious item in the proceedings of the Convention." It was original work in style, order, details and arrangement; "a curious item" indeed! Whose was the hand that sketched it? When Sparks was so near the end of the matter and on the path which led to the end, it seems almost incredible that he did not take one step forward. If he had he would have solved the problem and dispelled the mystery. Madison's letter of November 25th seems to have been written for posterity as well as for the man to whom it was sent. Its untold object manifestly was to divert attention from the draught of the Committee and to direct comparison to the Constitution itself. Three years later in his letter to Judge Duer he reiterated what he had said to Sparks, and again he said nothing upon the point which Sparks had plainly placed before him. Finally when he prepared his Note to the Plan, he for a third time, was silent on the primary issue in the case, Did the Committee follow Pinckney's draught or did Pinckney surreptitiously use the Committee's? This silence of Madison's is a most curious instance of his sagacious and adroit management. It was not his business to direct attention to this troublesome final issue and he did not. The "Note of Mr. Madison to the Plan of Charles Pinckney" would be published; the letters of Sparks to himself might never see the light. Indeed I can give this tribute to his adroitness--that this book was written in the belief that Madison, never knew of Pinckney's letter to the Secretary of State, and that his weakened mind had overlooked the draught of the Committee of Detail; and it was not till the book was finished that I found the letters of Sparks above quoted and was compelled thereby to supply this chapter, and modify what I had elsewhere written. CHAPTER XI THE WILSON AND RANDOLPH DRAUGHTS Since Madison's time there have been uncovered four papers of which he knew nothing, and they bring us into an almost new field of inquiry. These papers are in the handwriting of James Wilson, Edmund Randolph and John Rutledge (all members of the Committee of Detail) and they are draughts (or sketches for draughts) of the Constitution. The first paper, chronologically, is not a draught. It was discovered by Professor McLaughlin and was published by him in the Nation of April 28, 1904, and is among the Wilson papers in the library of the Historical Society of Pennsylvania. It is in Wilson's hand and was found among his papers; but if it was drawn up by him, of which I do not feel sure, it is questionable whether it was prepared by him for the Convention of 1787; and it is unquestionable that it was prepared before the adoption of the 23 resolutions. A single article, or item of the paper will demonstrate this and its worthlessness. "20. Means of enforcing and compelling the Payment of the Quota of each State." This is all that there is concerning the rock upon which the Confederation was already wrecked--the dependence of the general government upon the voluntary action of the State governments for revenue. Wilson in 1787 was too intelligent a statesman to even think of retaining this condition of national dependency, and he was too wise a man to talk of "enforcing and compelling" the several States to contribute to the national treasury. He may have prepared the paper some time before the Convention was called, when amendments to the Articles of Confederation were all that was anticipated, but he did not draw up this memorandum after he had become a member of the Committee of Detail. The second paper in Wilson's hand was discovered by Professor Jameson among the Wilson papers, and was published by him in the Annual Report of the Historical Association, 1902, Vol. I., p. 151. This paper contains the preamble of the Pinckney draught, and, consequently, of the draught of the Committee. Then follow the first three articles of the Committee's draught, with some slight variations of language; and then under the caption of what should be article 4, come 29 paragraphs containing provisions closely agreeing with provisions in the Committee's but unarranged and incoherent in their order. The second sheet of this draught is unfortunately missing; the third sheet contains various provisions, following closely the 17th, 18th, 19th, 20th and 21st resolutions, and, near the end of the paper, the provision relating to the veto power taken from the constitution of Massachusetts with the term "Governour of the United States" twice used. The third paper of Wilson was likewise discovered by Professor Jameson. Wilson had prepared the second draught for himself, but this third or final draught manifestly was prepared for the consideration of the other members of the Committee. He wrote it on large foolscap in what is called double columns, _i. e._ half of each page was left blank for the comments and suggestions and amendments of the others. The writing is in the clear, neat, legible hand, characteristic of Wilson, and before the work of revision began, there was hardly a clerical error in the paper. A remarkable contrast is stamped upon it consisting of 43 amendments in the scrawly, slovenly, bold, illegible writing of Rutledge, who really seems to have found pleasure in cutting and slashing the careful work, the almost feminine neatness and niceness of Wilson's pages. This draught unlike the second, is divided into articles, but unlike the Committee's, is not subdivided into sections. The fourth of these recently discovered papers is in the handwriting of Edmund Randolph. Mr. William M. Meigs in his Growth of the Constitution has done an excellent piece of historical work in reproducing the draught of Randolph in facsimile. In its interlineations, erasures, changes, omissions and marginal queries we see Randolph's doubts and perplexities and the incompleteness of his plan and the limitations of his mental view of a draught; and we see this as distinctly as if we stood beside him while he wrote. A more disheveled paper was never reproduced in facsimile. Upon its margin are annotations and suggestions of omitted provisions which are in the hand of Rutledge. One thing, most meritorious, appears--that Randolph carefully and conscientiously went through the 23 resolutions and neglected no instruction which they gave. But the chief question remains unexplained as Sparks left it, How came the Committee of Detail to wander so far from the resolutions "with the resolutions before them and Randolph himself one of their number"? The draught of Randolph begins in this way: "In the draught of a fundamental constitution two things deserve attention: "1. To insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable which ought to be accommodated to times and events, and "2. To use simple and precise language and general propositions according to the example of the constitutions of the several States." Randolph then considers the subject of a preamble and sets forth a brief disquisition to show that a preamble is proper and what it should contain. "We are not working," he says, "on the natural rights of men not yet gathered into society, but upon the rights modified by society and interwoven with what we call the rights of States." He outlines what the preamble should set forth; his views are sound, but his intended preamble is not the preamble reported by the Committee of Detail. There is a curious provision in his draught relating to the compensation of Senators: "The wages of Senators shall be paid out of the treasury of the United States; those wages for the first six years shall be ---- dollars per diem. At the beginning of every sixth year after the first the supreme judiciary shall cause a special jury of the most respectable merchants and farmers to be summoned to declare what shall have been the averaged value of wheat during the last six years, in the State where the legislature shall be sitting; and for the six subsequent years, the Senators shall receive per diem the averaged value of ---- bushels of wheat." This extraordinary provision for the benefit of Senators only illustrates the crudity of Randolph's intentions at the time and the incompleteness of his plan. The annotations of Rutledge are few but they are valuable for they authenticate the paper; they prove it was the very paper upon which Randolph and Rutledge worked; and that it was all which they had then prepared toward a draught of the Constitution. These draughts of Randolph and Wilson disclose another fact of unusual interest. When the Randolph draught was found bearing the annotations of Rutledge, it suggested the idea that the two Southern members of the Committee of Detail had put their heads together to draught a constitution which would be accepted at the South, and that probably the three Northern members had prepared another which would be accepted at the North. But the final draught of Wilson dispels that illusion. We now know that Rutledge gave quite as much attention to the Wilson draught as to the Randolph draught, and that he wrote many more amendments upon its margin. Nothing has been discovered to show that Ellsworth and Gorham even attempted to draught a constitution; and after finding that the other members used and utilized and amended the Pinckney draught we know that there was nothing left for Ellsworth and Gorham to draught. They were not constructive men in the Convention, though being critically minded they may have rendered good service in the way of revision, but they contributed nothing to the draught of the Committee. Every provision in it is traceable to Pinckney, Wilson, Randolph and Rutledge, and they were its authors. The second and third draughts of Wilson appear in neatness and completeness to be copies. There is nothing indicative in them of an author's perturbations. The writing is small and finished. If it were not known to be Wilson's hand one could easily believe it to be that of a secretary, giving good work for wages, undisturbed by the cross currents of thought and composition. But on the back of a sheet of the second draught is a paragraph which is unmistakably a rough draught, which is unquestionably author's work, warped and altered in the uncertainties of construction and composition; and this piece of work is a preamble. As first written, before erasures and interlineations began, it stood as follows: "We the people of the States of New Hampshire etc. do agree upon ordain and establish the following Frame of Government as the Constitution of the United States of America according to which we and our Posterity shall be governed under the Name and Stile of the United States of America." Wilson then amplified the first part of this draught, and the amplifications well illustrate the bent of his mind toward details and particulars; and he next reduced it by omitting the clauses which relate to the government of ourselves and our posterity, and to the "Name and Stile" of the future nation so that it reads as follows: "We the People of the States of New Hampshire etc. already confederated under and known by the Stile of the United States of America do ordain declare and establish the following Frame of Government as the Constitution of the said United States." Neither of these versions is the preamble reported by the Committee. Each lacks the bold simplicity and comprehensiveness and directness of Pinckney's: "We the People of New Hampshire" etc. "do ordain declare and establish the following Constitution for the government of ourselves and posterity." The preamble is in words and structure a small thing. Two persons having the tasks set them of preparing a preamble with that of Massachusetts before them as material out of which each should be made, could hardly avoid, one would think, evolving out of it two sentences which would be in terms almost identical. But even in this small thing the different traits and methods and style of the two men appear. Pinckney takes the Massachusetts preamble and reduces it until he gets what he wants without a superfluous word. Wilson cannot resist amplifying even while he is condensing. When we get through with what is unquestionably Wilson's work, the preamble for the Committee remained to be written--unless it was already written in the Pinckney draught. In the investigation of the charges of Madison against Pinckney it was found that whenever the evidence was subjected to a rigorous examination the case broke down. These draughts of Wilson and Randolph though not intended as a charge against Pinckney may be treated as such--the charge of appropriating Wilson's work and representing it to be his own. Accordingly I have in like manner, examined the evidence and have again found that it does not sustain the charge. A few illustrations will make this plain. The preamble in the Committee's draught is in Wilson's, word for word. When we find that this preamble is in the preliminary draught of Wilson (a member of the committee), and in the finished product (the draught of the committee), we easily infer that Wilson was the author, the originator of the preamble, and when we find that the same preamble is in the draught of Pinckney and know that he possessed a copy of the Committee's draught we are in danger of taking another step on the pathway of assumption and reaching the conclusion that Pinckney must have taken his preamble from the Committee's draught. This makes a case against Pinckney which is entitled to explanation or examination. The preamble to the Constitution of the United States was suggested by the Articles of Confederation and the constitutions of eleven of the thirteen States. Its language was taken by Pinckney or by Wilson, or by both, from the Constitution of Massachusetts by much condensing. Wilson's draught is identical in terms with Pinckney's save for the insertion of a single word, "our," in the last line; "for the government of ourselves and our posterity." This word "our" is here a word of limitation, a word which taken literally would confine the blessings and government of the Constitution to the men who made it and their posterity. But at the time when these early constitutions were framed the growth of the country it was foreseen would depend chiefly on immigration. The Constitution of Massachusetts does not use the word "citizen," and throws the door of the elective franchise open to "every male person" "resident in any particular town" and to "the inhabitants of each town." "And to remove all doubts concerning the meaning of the word 'inhabitant' in this constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office or place within the State in that town, district or plantation where he dwelleth or has his home." The draughtsmen of the Massachusetts Constitution therefore with logical exactitude, left the word "posterity" unrestricted, and broad enough to extend to the posterity of all men who thereafter might become inhabitants within the State. Two things must now be noted. The first is that every word in Pinckney's preamble, save one, was taken from the preamble of the constitution of Massachusetts; the second, that Pinckney's draught adheres to the unrestricted "posterity" of the constitution, and does not follow the restricted "posterity" of the Wilson draught. The charge that Pinckney's preamble was "necessarily" derived from the Committee's draught is therefore doubly refuted. There was a source to which Pinckney could go for his preamble, the constitution of Massachusetts, and he went there; there was a deviation from the constitution of Massachusetts in the Wilson draught, and Pinckney did not follow it. Wilson probably inserted the word "our," in his preamble for a rhetorical reason; for he was one of the signers of an instrument which rang with its own concluding words "OUR LIVES, OUR FORTUNES AND OUR SACRED HONOR." The insertion of one word (our) in one of these preambles is a slender strand of circumstantial evidence. But circumstantial evidence is made up generally of slender strands; and circumstantial evidence is least suspicious when the strands are severally insignificant. With the Declaration of Independence and the Articles of Confederation and eleven of the State constitutions containing preambles, it is inconceivable that Pinckney would have framed his draught without a preamble; and if Pinckney framed the preamble, as he must have done, it is inconceivable that he would have thrown it aside in 1818 and substituted another man's, for he was never ashamed of his own work. And it must be taken as a fixed fact that Pinckney had a preamble, for the structure of the draught required it; the first article would be meaningless without one, "The stile of _this government_"--the government announced in the preamble. Therefore having the necessity of a preamble, and the production of one in 1818, and the strict adherence in words and intent to the constitution of Massachusetts and Pinckney's familiarity with that constitution, the severally slender strands become a cord of circumstantial evidence which must satisfy an unprejudiced mind that Pinckney was the author of the preamble in his draught. There are too many clews here to be disregarded, and they all lead one way. The unquestionable sketches of a preamble in Wilson's and Randolph's handwriting show only three attempts and three failures. Let us now consider a second illustrative case: As we have seen in a previous chapter (Chap. XI) the 3d of the 23 resolutions declared that the members of the House of Representatives "ought" to receive an adequate compensation for their services; and the 4th resolution, that the members of the Senate "ought" "to receive a compensation for the devotion of their time to the public service." The term "adequate" implied and required the exercise of some discretionary power, which must necessarily be national. For if Senators and Representatives were to be paid by the States which sent them to Congress, the members of Congress could not well turn around and dictate to the States what they should be paid. This was understood at the time. For on the 22d and 26th of June when the Convention refused to retain the words "to be paid out of the National Treasury" in the 3d resolution, "Massachusetts concurred" as Madison says, "not because they thought the State Treasury ought to be substituted; but because they thought nothing should be said on the subject, in which case it wd. silently devolve on the Nat. Treasury to support the National Legislature." Furthermore this thing was not done in a corner and the consideration of it was not confined to an hour. On the 12th of June the Committee of the Whole had resolved that the Representatives in Congress "ought to be paid out of the National Treasury," and again on the same day that Senators "ought" "to be paid out of the National Treasury"; and on the 13th of June the committee had voted to report these resolutions to the Convention; and on the 22d of June the Convention had refused to change this to payment by the States. Moreover the proposition that members be paid by the States had been condemned by the strongest men in the Convention. "Those who pay are the masters of those who are paid," Hamilton had said; and Gorham, Randolph, King, Wilson, and Madison had said as much. Nevertheless the Committee of Detail reported a provision that the members should be paid by the States; and, not only this, but also, that the compensation should be "ascertained" "by the State in which they shall be chosen." The only reason for or explanation of the Committee's act so far as we know is that working hurriedly, they overlooked one of the details of the 3d and 4th resolution, and, using Pinckney's draught as their copy, inadvertently allowed this provision of his to stand unchanged. In these newly found papers of Wilson this provision making the compensation of the national legislators dependent upon the action of the State legislators appears just as it stands in the draught of the Committee of Detail. Did Wilson originate this or did he get it from the Pinckney draught? There is good reason for believing that such a provision would be found in Pinckney's draught. On the 22nd of June when the clause of the 3d resolution declaring that members "ought to be paid out of the public treasury" had been advocated by some of the strongest men in the Convention, and the Convention apparently were about to adopt it, their immediate action was blocked by South Carolina; "The determination of the House on the whole proposition was, on motion of the Deputies of the State of South Carolina, postponed until to-morrow," says the Journal. A State had this right under the Rules of the Convention, and the Deputies of South Carolina exercised it, Pinckney being one of them. On the following day they succeeded in defeating the adoption of the clause. On the 26th of June General Pinckney "proposed that no salary should be allowed" to Senators. "This branch" he said "was meant to represent wealth; it ought to be composed of persons of wealth." And "on the question for payment of the Senate to be left to the States" South Carolina voted "aye." But there is no good reason why we might expect to find this provision in Wilson's draught. The resolutions did not so direct; and there had not been a single vote of the Convention which committed this matter of compensation to the States; and Wilson's personal bias could not have misled him for he condemned it. On the 22nd of June he had said in the Convention that "he thought it of great moment that the members of the National Government should be left as independent as possible of the State Governments in all respects," and during the same debate he had moved that the salaries of the 1st branch "be ascertained by the National Legislature." The explanation is that Wilson working with Pinckney's draught before him gave his attention to improving its phraseology; and that the other members of the Committee confiding in Wilson's scrupulous carefulness and particularity overlooked his mistake. We have before us a third illustration: The Constitution of New York provided, "The supreme legislative power within this State shall be vested in two separate and distinct bodies of men; the one to be called the Assembly of the State of New York; the other to be called the Senate of the State of New York; who together shall form the legislature, and meet once at least in every year for the despatch of business." The draught of Pinckney varies slightly; "The legislative power shall be vested in a Congress, to consist of two separate houses; one to be called the house of Delegates; and the other the Senate, who shall meet on the ---- day of ---- in every year." The draught of Wilson also follows this with little variation: "The Legislative power of the United States shall be vested in two separate and distinct Bodies of Men, the one to be called the House of Representatives of the People of the United States, the other the Senate of the United States." So far we have in these three instruments the same earmark: "the one to be called the Assembly of the State of New York; the other to be called the Senate." "One to be called the House of Delegates and the other the Senate." "The one to be called the House of Representatives, the other the Senate." But the draught of the Committee of Detail departs both in words and structure from this form: "The Legislative Power shall be vested in a Congress to consist of two separate and distinct bodies of men, a House of Representatives and a Senate; each of which shall in all cases have a negative upon the other." Here it was possible that Wilson followed the Pinckney draught, which was in his possession, but it was not possible that Pinckney copied Wilson's draught which was then unpublished and unknown. The words that Pinckney and Wilson both used, "the one to be called the House, the other the Senate" are clews which lead from Pinckney directly to the Constitution of New York. The Committee changed the words and changed the structure of the sentence and thereby rendered it certain that Pinckney did not derive his provision from their draught. Let us take another illustrative case: Luther Martin's resolution of July 17th provided, "The legislative acts of the United States" "and all treaties" "shall be the supreme law of the respective States." (The 7th of the 23 resolutions.) Article VIII. of the draught of the Committee of Detail varied the phraseology in one word "shall be the supreme law of the _several_ States." The committee of Style gave us the provision as it stands in the Constitution: (Art. VI.) "This Constitution and the Laws of the United States which shall be made in pursuance thereof; and all treaties which shall be made under the Authority of the United States shall be the supreme law of the _land_." Turning back from the Constitution to Pinckney's draught, avowedly drawn up before the work of the Convention had even begun, we find in his Article VI. "All acts made by the legislature of the United States pursuant to this Constitution, and all treaties made under the authority of the United States shall be the supreme law of the land." This assuredly seems to be an instance which confirms Madison; that is to say an instance where as Madison said there are to be found in the draught in the State Department, "the results of critical discussion and modification in the Convention." Must we also add, with Madison "which could not have been anticipated"? Moreover if Pinckney obtained this provision by purloining it, he must have taken it from the Constitution itself. The language in his draught apparently involves and combines three distinct acts of the Convention; the adoption of the resolution of Martin on the 17th of July; the acceptance of the Committee's draught of the 6th of August; the revision by the Committee of Style, just before the dissolution of the Convention. This makes a dark charge against Pinckney--far darker and more specific than any charge that Madison preferred against him. At first sight it seems as if at last Pinckney was taken in the toils of his own weaving, as if there were no escape for him and that he must be convicted. But the simple explanation is that Pinckney took his provision and its verbiage from the Congress of the Confederated States in the resolution of March 21st 1787. Luther Martin did not adhere to the language of the resolution; and he did not intend to; for his resolution was a compromise, an alternate for a proposed power in Congress to negative the laws of the States, and he intended that his resolution should bear directly and explicitly upon "the respective States." The subject was one of great importance, of surpassing interest and had but recently been disposed of by compromise in the Convention, and the Committee properly adhered to Martin's resolution, correcting only one word by the substitution of another, "several" for "respective," "shall be the supreme law of the several States." Pinckney had been a member of the Congress when the resolution of March 21st was passed; he may have draughted it himself; and certainly it covered a matter in which he was interested above all other things, the supremacy of the National Government. The Committee of Style may have taken the concluding phrase from the resolution of Congress or they may have placed it in the Constitution on their own motion; for _Trevett_ v. _Weeden_ had been heard and adjudicated by the Supreme Court of Rhode Island on September 25th, 26th, 1786, and the words "THE LAW OF THE LAND" were in the air; and the term had received a judicial significance which has never been adequately appreciated. It meant an authority higher than a statute. There are three important articles in Wilson's draught which are not Wilson's. These appear on the margin in the handwriting of Rutledge and answer to article XIV, XV and XVI of the Committee's draught. As they are in almost the precise language of Pinckney's articles 12 and 13 the much repeated question again arises, did Rutledge take them from the Pinckney draught; were they then in the Pinckney draught to be taken; or did Pinckney abstract them from the Committee's draught? The question is easily and decisively answered: _these articles are described in the Observations; Pinckney's title to them cannot be questioned; Wilson and Rutledge had his draught before them, and used it, when Rutledge wrote these articles upon the margin_. The veto power was cast by the Convention in their resolutions with those of the Executive. Pinckney had placed it in his draught among the legislative, though he is careful to say in the Observations that the Executive "is not a branch of the Legislature farther than as a part of the council of revision." Nevertheless he placed the veto at the end of his article 5--an article relating to the choosing of members of the lower house; to the privileges of Representatives and Senators; to the business proceedings of both houses. Wilson more clearly perceived that the American veto would lack the finality of the _Le roy, avisera_ of the Crown, and that it would be neither a legislative nor an executive power though having the properties of both; and he properly made of the veto power an entire and independent article, article 7 of his draught. There were members of the Convention who regarded the veto power as a bulwark against the encroachments of the legislative power; and Wilson himself had said that, "the Executive ought to have an absolute negative"; that "without such a self-defence the Legislature can at any moment sink it into non-existence." Unquestionably the veto provision ought to have been placed in the Committee's draught as Wilson placed it in his own. But it was not. On the contrary it appears there as it appears in Pinckney's, as an incongruous paragraph at the end of an article which deals with the House of Representatives, with the business of both Houses and with the privileges of the members of each. The one thing certain here is absolutely certain--that the Committee in this did not follow Wilson's draught though it was correct and did follow some other draught though it was incorrect. It is comprehensible that if the provision of the veto power had started wrong as it did in Pinckney's draught, it might have continued wrong, and its misplacement might have remained unnoticed; but it is incomprehensible how the error could have been known to at least the two leading members of the Committee and have been actually and plainly corrected by one of them and the provision then have relapsed into the condition in which Pinckney left it, unless the Committee found about the end say of the seventh day that they must forego either the completion of Wilson's carefully prepared work or their bringing into the convention printed copies for the use of members, and that they then determined to use Pinckney's draught as copy for the printer, letting Wilson work into it, so far as he could, the corrections that he had embodied in his own and the changes which the Committee had agreed upon. The incompleteness with which this was done shows very plainly that toward the end of the ten days the Committee worked in haste. There are too many errors in the draught which would be both inexcusable and inexplicable if the Committee had had ordinary time to do their extraordinary work. There is a curious omission in Wilson's draught which indirectly brings to the light the composite authorship of one section of the Constitution. In 1777 the punishment of treason had been a delicate subject in the United States more likely to be avoided than discussed. In 1787 the members of the Convention had not forgotten that within a dozen years they had had a personal interest in that subject. Pinckney in article 6 had given Congress twenty-two specific unrestricted powers but when he came to the power to declare the punishment of treason he paused and defined what treason should consist in and provided that no person should be convicted of the restricted crime but by the testimony of two witnesses. He threw all this into a distinct paragraph which ultimately, with additional restrictions, became section 2 of article VII of the Committee's draught. But neither the paragraph of Pinckney nor the section of the Committee is in the draught of Wilson. Wilson did not overlook the subject, "The Legislature of the United States shall have the power," his draught says, "to declare what shall be treason against the United States," and, having attached no restriction to the power, he properly placed it among the specified powers immediately after the one "To declare the law and punishment of piracies and felonies committed on the high seas and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations." But Rutledge did not consent to this. He and Pinckney seem to have vaguely feared that the law of treason might yet be administered in the United States by George III and he scrawled with his ruthless hand on the margin of Wilson's carefully written page, "Not to work corruption of Blood or Forfeit except during the life of the party"; and Wilson thereupon erased his own provision and struck it out from among the specific, unrestricted powers. Here the significant fact to be noted is that the words written on the margin of Wilson's draught were not taken from Pinckney's. That is to say the restrictions proposed by Rutledge were additional to those set forth by Pinckney. What Pinckney wrote and what Rutledge wrote and nothing more make the second section of the Committee's draught compounded and rearranged. The material was supplied by Pinckney and Rutledge; the reconstruction, judging by the careful and logical way the work was done was by Wilson: 1 the definition of the crime; 2 the power to punish the crime defined; 3 the restriction upon judicial proceedings, on the testimony of two witnesses; 4 the restriction upon the result of conviction, that it should not work corruption of blood, or forfeiture except during the life of the person attainted. It is also to be noted that no draught of this section 2 has been found. For reasons subsequently to be stated (chap. XII) it must be inferred that it was framed on the margin of the Pinckney draught. In article 8 of Wilson's draught immediately following his treason clause is this provision: "To regulate the discipline of the militia of the several States." In article 6 of Pinckney's draught the same power is given: "To pass laws for arming organizing and disciplining the militia of the United States." This grant of power to arm organize and discipline meant that control of State troops should be taken from the States and lodged in the general government. It was a radical departure from what had been; a change not countenanced by the Articles of Confederation and not authorized by the 23 resolutions. During the debates no member of the Convention had so much as suggested it; and on the 26th of July when the Convention adjourned to enable the Committee of Detail to draught a constitution, Pinckney alone had ventured to formulate a provision which might alarm the States and arouse the anger and opposition of the militia. He had done so; that we know; it is incontrovertible, for it is specifically described in the Observations "the exclusive right of establishing regulations for the government of the militia of the United States ought certainly to be vested in the Federal Government." Yet the Committee of Detail did not think so and they did not report such a provision. Here again it is possible that Wilson took his provision from Pinckney's draught, but it is not possible that Pinckney took his from Wilson's. The draught of Randolph discloses three important pieces of information which tend positively to sustain the Pinckney draught. The first is (in the words of Mr. Meigs) "that it was drawn up after the Convention had agreed upon the resolutions that were referred to the Committee of Detail on July 26th; and in numerous instances its language is modeled upon them with even verbal accuracy." (Growth of the Constitution, p. 318.) Manifestly this draught was not written--was not even begun, until after Randolph had become a member of the Committee. The writing of it, the revising of it, its numerous alterations and corrections, the submission of it to Rutledge, his examination of it and his changes and additions must have taken time. Almost every sentence in it is checked as if it had been compared with some other paper. In a word it indicates that some days must have passed after the 26th of July before Randolph and Rutledge could have written it, and revised it, and left it in its present form; and it witnesses the important fact that only five or six days before the finished draught of the Committee of Detail was put in the hands of the printer at least two members of the committee were no nearer completion of the work than this disheveled draught. The great improbability against the Pinckney draught is that one man alone and unassisted should have prepared so much of the Constitution. But it is a hundred times more improbable that this Committee unassisted by Pinckney's draught should have prepared and completed their own with all its well selected details, with language carefully taken from many sources, and with provisions far in excess of their instructions, than that Pinckney should have completed his in his own time (making as he did, four or five versions of it), thoroughly versed, as he was, in the needs and weaknesses of the existing general government and the constitutions of the several States, and able to confer, as he did, with the ablest statesmen in the country. The second thing which the Randolph draught does for us is important and most interesting. It enables us to ascertain the fact that the section of the Committee's draught which declares the jurisdiction of the Supreme Court (Art. XI, sec. 3), was the work of three persons; and the very words which each contributed. The 16th resolution of the Convention was as follows: "16. Resolved, That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature, and to such other questions as involve the national peace and harmony." Randolph followed the resolution but enlarged the jurisdiction; and Rutledge added two provisions in marginal notes; and their proposed section was as follows: "The jurisdiction of the supreme tribunal shall extent; 1, to all cases arising under laws passed by the general Legislature; 2, to impeachments of officers; and 3, to such cases as the national legislature shall assign, as involving the national peace and harmony; in the collection of the revenue; in disputes between citizens of different States (here Rutledge has added on the margin 'in disputes between a State and a citizen or citizens of other States'); in disputes between different States; and disputes in which subjects or citizens of other countries are concerned (here Rutledge has added 'in cases of admiralty jurisdiction'). But this supreme jurisdiction, shall be appellate only; except in cases of impeachment and in those instances, in which the Legislature shall make it original; and the Legislature shall organize it. The whole or a part of the jurisdiction aforesaid, according to the discretion of the legislature, may be assigned to the inferior tribunals as original tribunals." Meigs, p. 244. When we pass to the draught of the Committee of Detail we find that the latter part of this section of Randolph's was adopted, but that the first part was rejected. This rejection however was not a curtailment of jurisdiction, but a substitution of other language in the stead of Randolph's. The question therefore which is now presented to us is this, Who contributed the substitute? Who was the author of the first part of the 3d section? The corresponding declaration of jurisdiction in the Pinckney draught in article 10 contains only four subjects of jurisdiction. Each of these was suggested by other provisions of the draught. Article 8 for instance, provides that the President may be removed "on impeachment by the House of Delegates and conviction in the Supreme Court." Article 10 accordingly provides that the jurisdiction of the Supreme Court shall extend to "the trial of impeachment of officers." The style is characteristic of Pinckney; clear and terse and yet carelessly expressed. "One of these courts," he says, "shall be termed the Supreme Court, whose jurisdiction shall extend to all cases arising under the laws of the United States, or affecting ambassadors, other public ministers and consuls; to the trial and impeachment of officers of the United States; to all cases of admiralty and maritime jurisdiction." If we now turn to the draught of the Committee we shall find that these lines are the first lines of section 3, and that the two draughts are here identical. They contain the same provisions, arranged in the same sequence, expressed in the same terms. These lines therefore form the substitute which appears to have displaced the first part of Randolph's section. The two things fit together with precision. The significant fact to be noted here is that the Pinckney draught contains the provisions and words which form the apparent substitute in the Committee's draught, but contains nothing more. In a word not one of the provisions which we now know were prepared by Randolph and Rutledge are in the Pinckney draught. Four then of the grants of jurisdiction in article XI section 3 of the Committee's draught apparently were taken from the Pinckney draught and the remaining four unquestionably were taken from the Randolph draught. The section therefore is composite. Wilson's draught here comes into the case enabling us to understand how this combination was brought about. Wilson was in effect rewriting the Pinckney draught. Finding the first four subjects of jurisdiction precisely what he wanted, he retained them as they were without change or amendment. But they were insufficient. Randolph, Wilson and Rutledge were lawyers in practice who could foresee controversies in the future dual system which Pinckney had not foreseen. Accordingly Wilson took four additional subjects of jurisdiction from Randolph's draught having Rutledge's amendments and with some revising thus brought eight subjects of jurisdiction into his draught which subsequently appeared in the Committee's. To say that Pinckney was fraudulently plagiarising from the Committee's draught 31 years afterward and that while so doing he chanced to take one-half of the Committee's subjects of jurisdiction but not the other half, and that the half which he chanced to take might very well be his own, and that the half which he did not take chanced, as we now know, to be Randolph's is to state an absurdity. There are too many things here to be ascribed to chance; and each and all of them must have chanced to take place to make out a case of plagiarism against Pinckney. The third piece of information which Randolph's draught gives us is in the nature of positive evidence and establishes directly the fact that the Committee recognized Pinckney's draught and used it. Under the heading, "_The following are the legislative [powers] with certain exceptions and under certain restrictions_," Randolph set forth the powers of Congress, for the most part taken from the Articles of Confederation, "To raise money by taxation"; "To make war," etc., etc. After investing the general government with these powers he turned, not illogically, to restrictions which would prevent the States from usurping or denying the powers so granted and placed in his draught the following provision: "All laws of a particular State repugnant hereto shall be void; and in the decision thereon, which shall be vested in the supreme judiciary, all incidents without which the general principle cannot be satisfied shall be considered as involved in the general principle." This section he subsequently cancelled and over it he wrote, "_Insert the 11 article._" Where then is this article 11 which would restrict the powers of the States and render their laws, if repugnant to the Constitution, void? It cannot be article XI of the Articles of Confederation; for it provides only for the admission of Canada as one of the States of this Union. It cannot be article XI of the draught of the Committee of Detail for it relates only to "The judicial power of the United States"; to the judges, to jurisdiction; to the trial of criminal offences; and there is not a line which limits the power of a State or declares a statute void. Moreover the restrictions upon the States in the Committee's draught are divided and placed in two articles which are numbered XII, XIII. It cannot be Article XI of Wilson's draught for it relates to the powers of the Senate, the power to make treaties, to appoint ambassadors and judges, to adjudicate controversies between two or more States, and controversies concerning lands claimed under conflicting grants from different States, it being article IX of the Committee's draught. There is, however, an article 11 which places restrictions upon the States, and meets the requirements of Randolph as exactly as if it had been framed to effect his purpose, and it is article 11 of the Pinckney draught. We know too that it is Pinckney's own, for it is described in the Observations. With the 11th article in Wilson's draught and the 11th article in the Committee's failing to respond to the requirements of the reference, and with Pinckney's article 11 responding fully and exactly to it, there is but one conclusion left which is that Randolph when he wrote "Insert the 11 article" intended article 11 of the Pinckney draught. When the fact is established that the Committee of Detail had before them the Pinckney draught and took from it a single excerpt, though of not more than four lines, the burden cannot rest on Pinckney to account for identities and resemblances. The onus probandi will then be upon the other side; and the issue being whether the Committee used the Pinckney draught or Pinckney copied from the Committee's, the presumption must be, until the contrary be shown, that all identical provisions in the two draughts originated in Pinckney's. If James Wilson were now living, and asserting that he was the true and unassisted author of the Committee's draught these papers would be strong, though not conclusive, evidence to maintain his claim; and if Pinckney had never prepared a draught of the Constitution and his draught had never been presented to the Convention, and had never been referred to the Committee of Detail for the express purpose of assisting them in drawing up a draught of the Constitution, these papers would justify historical scholars in saying that Wilson should occupy the place which Pinckney occupies, and that the alien member of the Convention was the chief individual contributor to the Constitution of the United States. But the defect of these papers is that we know nothing about them, save that they are in the handwriting of Wilson and Rutledge. That they are original matter; that they are not made up of excerpts from Pinckney's draught: are propositions which are now sustained only by conjectures. Against such conjectures, there stand the consistent silences of all the members of the Committee. Gorham lived nine years and said nothing of his colleague's great work. Wilson lived eleven years and saw the government which, conspicuously, he had helped to form firmly established, and became a judge of the Supreme Court, yet while he lived gave no intimation of having drawn up the most important document of the Convention, and when he died left no statement showing the manner in which the work of the Committee of Detail was done. When Wilson passed away it behooved Ellsworth and Rutledge and Randolph to testify to posterity, if not to the men of their own time, of the great part which Wilson had secretly played in the drama of the Constitution, if he was the author of the draught. But Rutledge lived two years, and Ellsworth nine years, and Randolph fifteen years, and gave no sign. Against such conjectures too there is the record of the other draught, a series of incontestible facts, each consistent with those that had gone before it and with those which were to come after it. Pinckney prepared a draught; it was presented to the Convention; it was referred to the Committee of the Whole, and thereby made accessible to every member of the Convention; it was referred to the Committee of Detail and thereby placed at the disposal of the committee and brought directly to the notice and knowledge of every member; the Committee never returned it to the Convention and it has not been found among the papers of any one of them; Pinckney published a description of it within a month after the adjournment of the Convention; and a month later republished the description in a newspaper. In 1818 he authorized the publication of a paper which he certified to be a substantial copy of the draught; it was immediately published with the first publication of the secret journal of the Convention and widely disseminated as a public document; at the time of publication 16 members of the Convention were living who must have desired, we must assume, to see the journal of the proceedings in which they had personally taken part; and when they received the journal received with it a copy of Pinckney's draught; and yet when Pinckney died more than six years afterwards no surviving member of the Convention had denied or questioned the verity of the published draught. There are very few historical papers in the world which have such a record of publicity behind them as Pinckney's draught; and it is idle to attack such a record with one man's suspicions and another man's inferences, and our own prejudices and conjectures. Two incontrovertible facts are that at the time when these papers were written, Pinckney's draught was in possession of these same men, Wilson, Randolph and Rutledge, and that they never returned it to the Convention. This examination brings us round a circle to the question at which we started, Did the Committee rightly use the draught of Pinckney, or did Pinckney fraudulently copy the Committee's draught? The Randolph and Wilson draughts bring the case into this situation: 1. Randolph, Wilson and Rutledge were the working members of the Committee and worked together. All that was done with the pen, so far as we know, was done by them. Wilson was the ready writer of the Committee and had before him, when he wrote his final draught, his own preliminary draught and Randolph's draught and Pinckney's draught. 2. The final draught of Wilson was not begun until after his own preliminary draught was finished. The 43 amendments of Rutledge came later and were all subsequently considered and accepted by the Committee. 3. From an intellectual point of view the final draught of Wilson with the annotations of Rutledge came near to being the draught of the Committee of Detail; but it was not the completed draught of the Committee even from an intellectual point of view; for additional provisions were framed and the arrangement of provisions was changed and the articles were subdivided into sections. From a printer's point of view the material for a written draught which was to be put into type did not yet exist. 4. If a copy of the draught was prepared for the printer (with Rutledge's 43 amendments and the additional provisions and the rearrangement of articles and the subdivision of articles into sections all engrossed therein), it is plain that Wilson, the hard worker of the Committee, was the man who did it. Wilson saved everything that he wrote and, consequently, saved his best. His best is his third, his final draught, but it is not the draught of the Committee. If he had prepared a copy for the printer, it would have been his best--by far the best thing he did. It would have been returned to him by the printer with the proofs; and Wilson we may confidently conclude (knowing how he saved even scraps of his writing) would have preserved it. 5. The evidence relating to the draughts of Randolph and Wilson therefore closes with the draught of the Committee of Detail still undrawn and with very little time left in which it could be prepared for the printer. When we couple together the two significant facts that the Committee's work (_i. e._ their manual labor) ended before they had prepared a draught for the printer, and that Pinckney's draught which was in their possession and had been used by them, disappeared during the same eventful week, there can be but one inference--that the Committee used it. CHAPTER XII THE COMMITTEE'S USE OF THE DRAUGHT Up to this point the subject of consideration has been the charges preferred by Madison against the copy of the draught in the State Department. I now propose to press the investigation in a more positive way; to-wit, by ascertaining whether the Committee of Detail used a draught of which this is a copy or duplicate, and to what extent and in what manner. In copyright cases where the issue is of plagiarism, it sometimes happens that traces of the earlier work will be found in the later one, be the language ever so carefully paraphrased and the plagiarism ever so carefully hidden. Misspelled names, erroneous dates, genealogical mistakes which originated in the one and reappear in the other are fateful witnesses. If we find such traces in the work of the Committee of Detail we may follow them as detectives follow clues until they find the criminal; that is to say until we find to a certainty that the Committee used the draught. The first of these traces of Pinckney's hand in the Committee's draught is a very curious one inasmuch as it discloses the fact that in one provision the Committee followed Pinckney's leading unconsciously, and that their action was unauthorized by the Convention, if not in violation of their positive instructions twice repeated. The subject, the pay of Senators and Representatives, had been much discussed; but neither in the Committee of the Whole nor in the Convention had it ever been voted that the compensation should be either "determined" or "paid" by the States. The proceedings of the Convention in regard to this have been examined at length in the preceding chapter and the details need not be repeated here. It is enough to recall the fact that the Convention resolved expressly that the pay of Representatives should be "adequate," and by implication that the pay of Senators should likewise be adequate; and that the Committee of the Whole had previously resolved that both should be paid out of "the public treasury." How the Committee of Detail could have so reversed the determination of the Convention as to provide that the members of both Houses should receive a compensation not necessarily "adequate" and "to be ascertained" as well as "paid" by the State "in which they shall be chosen" is explicable in only one way; to-wit: Pinckney's draught likewise declared, also in a single provision (art. 6) that "the members shall be paid for their services by the States which they represent." There is a verbal difference between the Committee's draught and the copy of the Pinckney draught in the State Department, a bettering of the English, which was done by Wilson as we have already seen in his draught and it is certain that the Committee reported to the Convention a provision substantially that of the Pinckney draught, a provision which the Convention had more than once rejected. If the Pinckney draught was used as copy for the printer, it is plain enough that the clause of six words "by the States which they represent" may have misled the Committee. With the many propositions which they had to codify and the brief time within which the work must be done; and the confused and somewhat contradictory action of the Committee of the Whole and the Convention in June, and the divided responsibility and scrutiny of five men, it is easily possible that the Committee were misled by the provision in the Pinckney draught; but it is not possible that they could have been so misled if there had been no Pinckney draught and they had followed the 3d and 4th resolutions and borne in mind the action of the Convention and the words of its leading members. A second deviation from the instructions given by the Convention relates to the payment of the Executive. The 12th resolution says that the Executive is "to receive a fixed compensation for the devotion of his time to the public service to be paid out of the public treasury." The Pinckney draught (art. 8) says that the President "shall receive a compensation which shall not be increased or diminished during his continuation in office" and stops there. The draught of the Committee (art. X sec. 2) says "He shall, at stated times receive for his services a compensation, which shall neither be increased nor diminished during his continuance in office," and stops there. In a word we find here Pinckney's language with a word or two of amplification, and a little correction (the kind of deviation which one may expect to find in the revision of a statute or legal document) and we find (as in Pinckney) the important word "fixed" omitted, and the not "increased or diminished" clause of Pinckney inserted, and the provision stopping as Pinckney stops, without the concluding words of the resolution "to be paid out of the public treasury." There is here too much resemblance to Pinckney and too little adherence to the 12th resolution to leave a doubt as to where the Committee's provision came from. A more notable instance relates to the appointing and treaty-making power of the Senate. The 14th resolution declares that the judges of the "Supreme tribunal shall be appointed by the second branch" _i.e._ the Senate. But the draught of the Committee says (art. IX), "The Senate of the United States shall have power to make treaties, and appoint Ambassadors and judges of the Supreme Court." How came the Committee to invest the Senate with power to make treaties and appoint ambassadors when no such authority was conferred by the resolutions and no such determination had been reached in the Convention? Pinckney's draught answers the question, (art. 7) the Senate, it says, shall have the sole and exclusive power "to make treaties; and to appoint ambassadors and other ministers to foreign nations, and judges of the Supreme Court." Here the Committee placed the whole treaty-making power and the diplomatic intercourse with foreign nations entirely in the hands of the Senate and for no other reason than that Pinckney had already done so. Such an extension of their work beyond their authority could not have suggested itself. Evidently when adapting Pinckney's work to their own purposes they neglected to strike out "treaties" and "ambassadors." In Pinckney's draught is set forth (art. 3) "The House of Delegates shall exclusively possess the power of impeachment, and shall choose its own officers; and vacancies shall be supplied by the executive authority of the State in the representation from which they shall happen." And in the Committee's draught it is similarly set forth (art. IV, sec. 6, 7) "The House of Representatives shall have the sole power of impeachment. It shall choose its speaker and other officers. Vacancies in the House of Representatives shall be supplied by writs of election from the executive authority of the State in the representation from which they shall happen" (sec. 7). These incongruous things Pinckney threw together in a single sentence. The Committee placed two of them in one section and the third in another, and amplified and corrected as usual; but not one of these powers is enumerated in the twenty-three resolutions; and let it also be noted that the peculiar and awkward phraseology, "the executive authority of the State in the representation from which they shall happen" is in both. While the uses and misuses of the Pinckney draught conclusively establish the fact that the Committee of Detail did use it and frequently adhere to its text, a more comprehensive and just idea of the service which Pinckney rendered and the manner in which his draught was used in the formation of the Constitution will be obtained by placing ourselves in the place of the Committee and using it as they must have used it. At the convening of the Committee the draught which had been referred by the Convention was before them. It was the only draught of the proposed constitution which had been prepared by anyone--the only instrument or document, so far as our knowledge goes, which could be used by them as a pattern or basis for their work. Unquestionably the Committee sooner or later would take up this one instrument of its kind and ascertain how far it would serve their purpose. The preamble is the first and chief sentence in the Constitution; for it declares the source and supremacy of its authority. "We the people of the United States" "do ordain, declare and establish this Constitution." The preamble goes behind State governments, asking nothing from them, either of authority or consent, and invokes the power which established them, the people of the United States. This supreme power, if the Constitution should be adopted, would allow States and State governments to continue to exist, but to exist subordinate to a new power, the Constitution of the United States and as parts and not units. In the first letter which Madison (then in New York) wrote to Jefferson (then in Paris) after the adjournment of the Convention, he said: "It was generally agreed that the object of the Union could not be secured by any system founded on the principle of a confederation of Sovereign States. A voluntary observance of the federal law by all the members could never be hoped for. A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent and the guilty, the necessity of a military force, both obnoxious and dangerous, and, in general, a scene resembling much more a civil war than the administration of a regular government. "Hence was embraced the alternative of a government which, instead of operating on the States, should operate without their intervention on the individuals composing them; and hence the change in the principle and proportion of representation." The chief idea of the preamble is not set forth in any resolution or act of the Convention; and no instruction so to declare the source of authority was given to the Committee of Detail. The preamble belongs exclusively to Pinckney, though its words as we have before seen, were taken from the preamble of the constitution of Massachusetts. Chap. XI. The only amendment which the Committee of Detail made, was in the last line of Pinckney's, the insertion of a single word "our,"--"for the government of ourselves and our posterity." With the exception of this word the Committee took Pinckney's preamble as they found it, and so reported it to the Convention. During the subsequent sittings of the Convention it remained unamended and unquestioned and undiscussed until at last it received the final touch of the Committee of Style. In article 1 Pinckney followed in part the Articles of Confederation and in part the Constitution of New York: "The stile of this Government shall be the United States of America, and the Government shall consist of supreme legislative, Executive and judicial powers." This the Committee broke into two articles and in the first line changed "this" to "the" but made no other change. Article 2 relates to the legislative power and was taken by Pinckney almost verbatim from the constitution of New York. The Committee changed "House of Delegates" to "House of Representatives," and filled a blank with "first Monday in December," and in place of two "houses" said two "distinct bodies of men," and introduced a needless provision that each house "shall in all cases have a negative upon the other." Article 3 relates to members of the "house of delegates"; to the term of office, to the qualifications of the electors, to the qualifications of members, to their apportionment among the States, to their proportion with population, to "money bills," impeachment, the choosing of their own officers, and to vacancies. Here the Committee's method of breaking an article into sections begins. But the seven sections of the Committee's follow in the same order and almost in the same words, the sentences of Pinckney. The article, like Pinckney's, begins with, "The members of the house"; and ends, like his, "in the representation from which they shall happen." Article 4 relates to the Senate, and here first appear the individual opinions of Pinckney which were shared by no one. His senators were to be chosen by the House of Delegates. "From among the citizens and residents of New Hampshire"--"from among those from Massachusetts"--etc., etc. That is the representation was neither by States nor by population but by an arbitrary assignment in the Constitution. Pinckney believed that the Senate should represent the wealth of the country, and he probably intended that this arbitrary assignment should be representative of wealth. The senators from New Hampshire, Massachusetts, Rhode Island and Connecticut were to form one class; those from New York, New Jersey, Pennsylvania and Delaware another; and the remaining States a third. It was to be determined by lot which should go out of office first, which second, which third. As their times of service expired the House of Delegates was to fill them for a fixed and uniform term. This plan was suggested to Pinckney by the constitution of New York. Its only merit was that it would make the Senate a continuing body, as we now have it, one-third of the members going out at one time. Its errors seem incredible. It would have enabled the delegates from, say, the eastern and middle States to choose senators who would grossly misrepresent the southern States; with every change in the political supremacy of the House one-third of the senators would change, and one-third of the country might be represented by new and inexperienced men; with the people of a section of one political faith, their senators, chosen for them by the House of Delegates, might be of the opposite political belief. It is plain that when the Committee came to Pinckney's Article 4 they found something which would be of no use to them. The Convention had already marked out their work--the senatorial system which we still have--each State represented by two senators, each senator having an individual vote, the senators chosen by the legislatures of the several States. Yet even this article relating to Pinckney's senate, the Committee used, and used in a way which indicates that they took the paper upon which it was written and made it serve their purpose in framing their hurried draught. Art. V. Pinckney's article begins: "The senate shall be elected, and chosen by the;" and the Committee's begins: "The senate of the United States shall be chosen by the." At this point the Committee struck out the equivalent of 222 words from the Pinckney article and interlined about half the number, 120 words. (The large imperial unruled foolscap with lines well apart and the broad margin readily admitted of this being done.) But the instant that the necessarily new matter was interlined, the Committee resumed with Pinckney's words. His "Each senator shall be ---- years of age" etc., etc., becomes their "Every member of the senate shall be of the age of thirty years at least" etc., etc. Then follow Pinckney's provisions concerning citizenship, concerning the prior period of a senator's citizenship, concerning residence, the article closing as Pinckney's closes, "The Senate shall choose its own President and other officers." Here we have the two most dissimilar articles in the two draughts beginning with the same words, ending with the same words, containing the same provisions, following the same order, and differing only where the instructions of the Convention compelled the Committee to strike out a large and important portion of the earlier draught and to insert a new and important substitute. If the Committee were rewriting the article, there would be no reason for this extraordinary closeness of adherence--for this moving pari passu--for this going always as far and never farther over the ground traversed. Article 5 of the Pinckney draught is notable for containing the veto power. The Convention grouped it in the 23 resolutions with the powers of the Executive; Wilson made of it an entire, independent article, but Pinckney who had taken it, as we have before seen, from the constitution of New York, retained its revisionary character and placed it at the end of an article relating to the legislature and legislative business. The Committee left it where Pinckney placed it (Article VI, sec. 13) as we have seen in the preceding chapter; and in this as we have also seen in the preceding chapter the Committee followed Pinckney and did not follow Wilson. The 6th article contains another singular instance of an oversight of Pinckney's which the Committee followed. In it he gathers together with care and patience from the Articles of Confederation and from State Constitutions the incidental powers of Congress. The governing clause is, "The Legislature of the United States shall have the power." Then follow some 22 declarations of power, properly paragraphed: "To lay and collect taxes, duties, imposts and excises." "To regulate commerce" etc., etc., until in a final paragraph he sums up and closes the record of these powers by the paragraph. "And to make all laws for carrying the foregoing powers into execution." The power to punish treason Pinckney placed in a distinct paragraph for reasons stated in chapter XI. But this compelled him to rewrite the governing clause, "The Legislature of the United States shall have the power." In the same sentence he appended the definition of treason, "which shall consist only in levying war against the United States" etc. And he then (following the Act of Edward III), in a separate sentence imposed this condition upon conviction of treason that it shall be "but by the testimony of two witnesses." What Pinckney should have done was what Wilson did; he should have placed this power with the others under the first governing clause, "The Legislature of the United States shall have the power," and have pushed the limitations upon that power over with those relating to "the subject of religion," "the liberty of the press" and "the writ of habeas corpus," into a bill of rights. This oversight of Pinckney's, the Committee of Detail attempted to hide but not to rectify. The needless duplication of the words, "The Legislature of the United States shall have the power," they pushed out of sight by inverting the provisions of the sentence and defining treason first; but they retained it; and also in this article, properly relating only to legislative powers, they retained the condition laid upon the judiciary that "no person shall be convicted of treason unless on the testimony of two witnesses" (Article VII, sec. 2), and in doing these things, the Committee overruled Wilson and followed Pinckney. It is manifest, therefore, that the two draughts, the draught in the State Department and the draught of the Committee, are built upon the same framework. That is to say in structure, arrangement, form and order the two are identical, the one the basis of the other. In other words, the Committee took the draught which had been referred to them, and worked upon it, beginning with the preamble, and continuing to the last sentence, "The ratification of the conventions of ---- States shall be sufficient for organizing this Constitution." They amended, changed, substituted, subdivided (articles into sections), and amplified; but it was always Pinckney's draught which they worked upon. They retained every provision of his which was authorized by the instructions of the Convention, and some which were beyond the scope of the instructions and a few which were contrary to the instructions; and whenever they retained a provision, they retained, substantially, the language in which it had been cast by Pinckney. As in mathematics it is held to be self-evident that things which are equal to the same thing are equal to each other, so here it may be said that this extraordinary identity of the draught in the State Department and the draught of the Committee of Detail demonstrates that the draught in the State Department is a true and substantially exact duplicate of the lost draught which was referred to the Committee. CHAPTER XIII WHAT BECAME OF THE DRAUGHT A question of much interest follows the foregoing investigation; to-wit, why was not the Pinckney draught found among the records and papers of the Convention? It was the only draught of a constitution which had been before the Convention; it had been referred to the Committee of the Whole and referred to the committee charged with the duty of preparing a draught of the Constitution; and that committee had used it for that purpose. It was a paper of unique character and unquestionable importance and one of the records of the Convention. Why was it not found in the sealed package of the Convention's records? And there was another paper, which should have been found but was not. This was the report of the Committee of Detail, containing, or accompanying, their draught of a Constitution. The absence of any other paper that should have been placed in the package might be strange, yet not significant. But these two papers, if there were two, related to the same subject, contained more or less the same provisions, had been used for the same most important purpose by the same men, and were on the 6th of August, 1787, if they then existed, in the possession and official custody of the Committee of Detail. When Rutledge on the morning of that day "delivered in" the most important report ever laid before the Convention he should have laid upon the Secretary's desk those two papers, if there were such to lay there. Yet neither Pinckney's draught of the Constitution, nor the Committee's draught of the Constitution, was found in the sealed package; nothing was found but one printed copy of the Committee's draught. The draught of the Committee of Detail was the most important of all the papers of the Convention, for the reason that it was the embodiment of all that had been done during the first period of the Convention's work, the abstract stage, and was to be the foundation of all that was yet to be done in bringing the Constitution to its concrete and final form. For purposes of construction and interpretation the draught is the most valuable paper that exists or that ever did exist, inasmuch as it sets forth in a tangible, practical, unmistakable form the results so far attained and the views which a majority of the members held, and the conclusions which a majority of the States had reached when the work of abstract consideration ceased, and the work of changing their abstract ideas into the concrete provisions of the Constitution began. There was no other report, draught or document which should have been so watchfully guarded and carefully kept as the report of the Committee of Detail, if there were indeed such a document to preserve. To comprehend and appreciate the significance of the disappearance of these two papers, it is necessary that we understand the conditions of the case--the circumstances which tended toward their destruction, and those which should have secured their preservation. The first of these conditions was secrecy. The Convention early determined "That nothing spoken in the House be printed or otherwise published or communicated without leave." No reporter was present at the sittings of the Convention; no stenographer, typewriter or amanuensis served the members; no clerical force aided the Committee of Detail. The secrets of the Convention were in the custody of the members, and from the 29th of May to the 17th of September not one was revealed to the expectant, inquisitive, anxious American world. As the work of the Convention drew toward its close, it was determined that the obligation of secrecy should be continued into the indefinite future. The records were to be placed under seal and the custodian was to be Washington himself. Washington asked what should be done with the records; and the Convention answered that "he retain the Journal and other papers subject to the orders of Congress, if ever formed under the Constitution." For thirty years and more the seals remained unbroken; and for thirty years and more no member of the Convention spoke. Let the reader imagine, if he can, what would be the public feeling now, if a convention should be sitting from the 29th of May to the 17th of September to frame a new constitution for the United States which should sit with closed doors, and whose members should disclose no act, speak no word, drop no hint from the beginning to the end; and who, when the end was reached, should say absolutely nothing of what had been said and done in the secret proceedings of the Convention. We owe much to the framers of the Constitution; they were not common men. The first and highest instance of this sense of obligation is where we should expect to find it, in the personal journal of Washington. "Friday, 1st June. "Attending in Convention--_and nothing being suffered to transpire no minute of the proceedings has been, or will be inserted in this diary_." And for this reason, no member of the Committee wrote. The unfortunate Observations of Pinckney were the only publication that gave a glimmer of what had been done, or might have been done in the Convention--of what had been said or might have been said. The Journal of Madison was not published until after Congress had released the secrets of the Convention. The members had taken no solemn oath, nor clasped hands nor pledged their honor to each other, but they kept silence. A single incident fortunately preserved by William Pierce of Georgia will show how the obligation was regarded during the sitting of the Convention. It grandly displays the personal majesty of Washington, and the value which he set upon the secrecy of the Convention's deliberations. To a better appreciation of what took place it must be remembered that the Convention as a mark of respect for their great presiding officer established this rule: "_When the House shall adjourn, every member shall stand in his place until the President pass him._" Mr. Pierce says: "When the Convention first opened at Philadelphia, there were a number of propositions brought forward as great leading principles for the new Government to be established for the United States. A copy of these propositions was given to each Member with an injunction to keep everything a profound secret. One morning, by accident, one of the Members dropt his copy of the propositions, which being luckily picked up by General Mifflin was presented to General Washington, our President, who put it in his pocket. After the Debates of the Day were over, and the question for adjournment was called for, the General arose from his seat, and previous to his putting the question addressed the Convention in the following manner:-- "'_Gentlemen_: I am sorry to find some one Member of this Body, has been so neglectful of the secrets of the Convention as to drop in the State House a copy of their proceedings, which by accident was picked up and delivered to me this Morning. I must entreat, Gentlemen, to be more careful, lest our transactions get into the News Papers, and disturb the public repose by premature speculations. I know not whose paper it is, but there it is (throwing it down on the table), let him who owns it take it.' At the same time he bowed, picked up his Hat, and quitted the room with a dignity so severe that every Person seemed alarmed; for my part I was extremely so, for putting my hand to my pocket I missed my copy of the same Paper, but advancing up to the Table my fears soon dissipated; I found it to be the handwriting of another person. When I went to my lodgings in the Indian Queen, I found my copy in a coat pocket which I had pulled off that Morning. It is something remarkable that no Person ever owned the Paper." (3 Amer. Hist. Review, 324.) The obligation of secrecy required that these two papers should not be lost--that they should not be left where they might fall into the hands of someone who would publish them, that they should not remain in the possession of a member; and the final determination of the Convention implied that these two papers should be delivered by the Committee of Detail into the hands of the Secretary of the Convention and be by him placed in the custody of Washington. The second condition was time--the time within which the Committee's work must be done. On Thursday, the 24th of July, the Convention appointed the Committee of Detail "for the purpose of reporting a Constitution," and on the 26th, referred to the Committee certain resolutions and "adjourned until Monday, August 6th, that the Committee of Detail might have time to prepare and report the Constitution." This adjournment gave to the Committee ten full days in which to prepare and complete their draught, two of which were Sundays. The committee moreover determined to furnish to each member of the Convention a printed copy. On Monday, the 6th of August, the Committee appeared in the Convention bringing with them the printed copies of the draught. The draught contains about 3,600 words. A good printer in the olden days when there was not a typesetting machine in the world would have required (according to the computation of a present day printer) three days for doing the work, allowing therein a reasonable time for changes and corrections made in the proofs. It cannot be supposed that after the admonition of Washington, the Committee could be negligent in their selection of a printer. They would not carry their copy into a large printing office, if any such there was in Philadelphia, but would surely place it in the hands of some individual printer recommended to them as trustworthy by Wilson or Gouverneur Morris or some other delegate from Philadelphia, perchance by Franklin, the greatest printer in the world. In a word, the printing would not have been confided to a shop full of men but would have been given to one man and marked "confidential"; and it is safe to say that the copy must have been in the printer's hands by the close of the 7th day. Besides the typesetting, the proofs were to be examined, and the work scanned in the clearer light of printed matter by every member of the committee; and errors were to be corrected, and possibly changes made. After these ten days of actual and constructive work the Committee appeared in the Convention bringing with them a draught containing fifty-seven articles and sections, and some 200 constitutional provisions. Some of these provisions had been prescribed by the 23 resolutions, and some had been suggested by the Articles of Confederation, but there were others declaratory of the inherent powers of a national sovereignty which had neither been directed by the Convention, nor were contained in the Articles of Confederation. No reflective person beginning the study of the Constitution can read Madison's Journal attentively through to the 26th of July without being astonished by the greater comprehensiveness and detail and breadth and completeness of the draught which the committee produced in a printed form on the morning of the 6th of August. Besides the provisions in the draught which have passed into, and in a literal or modified form, have become parts of the Constitution, there was some work of the committee which must have involved consideration, discussion, and a waste of time. These hindrances left a perilously narrowed period within which a committee must draught the Constitution of the United States. It was therefore no time to stand upon trifles or to pause to adjust formal niceties. Within the closed doors of Independence Hall would be impatient men who had given their time since the 25th of May and who were sitting unceasingly through the heat of the Philadelphia summer, defraying in whole or in part their own expenses, though many of them were men of narrow means, ill able to give either their time or their money. To their anxious eyes the end seemed far away, and success far from certain, and they would resent unnecessary delay. It would be just to young, ambitious Mr. Pinckney to return his draught, unsullied, to the Secretary that it might tell the story in future years, unquestioned and unquestionable, of his splendid contribution to the Constitution. It would be proper and according to parliamentary usage for the committee to hand in their draught in writing, covered by a report attested by their signatures, both of which would remain in the archives of the Convention and perhaps in the archives of a future government. But the committee could not linger for these desirable things. Pinckney's draught must be sacrificed to hasten the good work along, to save time, if it were but a day; and their own report and draught must be "delivered in" figuratively, that is to say by the mouth of their chairman and by the means of the printed copies, one for each member. The committee, so all the circumstances unite in telling us, took Pinckney's draught and considered it; some provisions they retained; some they corrected, some they amended, some they changed, some they struck out. The amendments they wrote on the broad margin of the large foolscap sheets or wrote out on separate slips of paper which they wafered to the margin. When they had finished this work Pinckney's draught had become "printer's copy." For one brief week it served a great purpose and was the most useful document in the world. Then it was scrupulously destroyed; and concerning it no man of the men who knew its contents is known to have spoken a single word. Apart from the inferential and conjectural statements of the preceding paragraph, the stricter principles of law lead to or toward the same conclusion. The draught was placed in the committee's hands to be used but not to be destroyed. Nevertheless the right to use, like the right of eminent domain, was commensurate with the necessities of the situation, and the committee might use it by destroying it. The law allows within certain limitations, the presumption of fact that where an administrative officer had a certain, specific official duty to perform, he performed it. The Secretary of the Convention and the members of the Committee of Detail were not public officers but were charged with duties which, if not official, were still public, and the obligations and presumptions belonging to administrative officers may properly be applied to them. The Secretary's entry in the Journal of the Convention says, "The report was then delivered in at the Secretary's table, and being read once throughout, and copies thereof given to the members, it was moved and seconded to adjourn." All that there was to be "delivered in," was placed upon the Secretary's table, and it became his duty to preserve whatever the Committee had placed there subject to the future commands of the Convention. The "copies thereof" were the printed copies of the draught; and "the report" which was "then delivered in at the Secretary's table" was one of the printed copies accompanied by the oral explanation of the chairman. What the Secretary did with the papers in his charge is told in the following note and extract: "MONDAY EVENING. "Major Jackson presents his most respectful compliments to General Washington.... "Major Jackson, after burning all the loose scraps of paper which belong to the Convention, will this evening wait upon the General with the Journals and other papers which their vote directs to be delivered to His Excellency." Indorsed by Washington: "From MAJ'R WM. JACKSON, 17th Sept., 1787." "MONDAY, 17th. "Met in Convention when the Constitution received the unanimous assent of 11 States and Col'n Hamilton's, from New York (the only delegate from thence in Convention) and was subscribed to by every Member present except Gov'r Randolph and Col'n Mason from Virginia--& Mr. Gerry from Massachusetts. The business being thus closed, the Members adjourned to the City Tavern, dined together and took a cordial leave of each other.--after which I returned to my lodgings--did some business with, and received the papers from the secretary of the Convention, and retired to meditate upon the momentous wk which had been executed, after not less than five, for a large part of the time six, and sometimes 7 hours sitting every day, sundays & the ten days' adjournment to give a Com'ee opportunity & time to arrange the business, for more than four months." WASHINGTON'S DIARY. The Secretary of the Convention has generally been censured as incompetent and negligent. Nevertheless the papers which he transferred to Washington witness for him that he did preserve and keep whatever papers came within his official custody. The Secretary of State certified, March 19th, 1796, that in addition to the Journals then received from Washington "were seven other papers of no consequence in relation to the proceedings of the Convention." One of these is a "draught of the letter from the Convention to Congress to accompany the Constitution"; one is an order from "the directors of the Library company of Philadelphia" to the Librarian directing him to "furnish the gentlemen who compose the Convention now sitting with such books as they may desire during their continuance at Philadelphia, taking receipts for the same"; one is a letter from "one of the people called Jews" setting forth that by the Constitution of Pennsylvania "a Jew is deprived of holding any publick office or place of Government." The others are even of less consequence. They make plain by their unimportance the important fact that Major Jackson scrupulously kept every paper which Rutledge "delivered in at the Secretary's table" on the 6th of August. That is to say, it is made plain that on the 6th of August, Rutledge did not deliver in at the Secretary's table either a written report of the committee or the Pinckney draught. Judging in the light of all the facts which the case discloses we must conclude that the only thing which would have justified the Committee of Detail in not returning the Pinckney draught to the Secretary of the Convention was that it had been destroyed; the only thing which would have justified the Committee in destroying it, was that they were compelled to use it as printer's copy. The Committee did well to use it. And yet if there was one thing in the world which justified Pinckney in publishing the Observations, it was that the Committee of Detail had destroyed his draught. CHAPTER IV WHAT PINCKNEY DID FOR THE CONSTITUTION The style of the Constitution, we owe to Pinckney. Behind him, perhaps, was Chief Justice Jay, whose hand appears in the first Constitution of New York, but none of the men connected with the Convention, not even Hamilton, had attained what we may term the style of the Constitution--the clear, concise, declarative, imperative style which seems a characteristic part of the great instrument. Pinckney appreciated the difference between a constitution and a statute and in maintaining this difference his hand rarely erred. The Committee of Detail corrected Pinckney's language, occasionally, and sometimes rendered the meaning more certain by amplification but whenever they departed from his draught, there is an immediate falling off in style. A flagrant instance of this is in article IX, sections 2 and 3. In the hands of the Committee the provision relating to disputes and controversies between States expands into a string of minor provisions containing more than 400 words with all the involved petty particularities of an incoherent statute. _Exempli gratia_, "The Senate shall also assign a day for the appearance of the parties, by their agents before that house. The agents shall be directed to appoint, by joint consent, commissions or judges to constitute a court for hearing and determining the matter in question. But if the agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons, each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine, names, as the Senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be,", etc., etc. The person who remembers that this and more like it, was actually prepared and printed and reported to the Convention as a proposed part of the Constitution of the United States, may well wonder what kind of a Constitution the Committee of Detail would have framed, if they had not had Pinckney to block out their work for them. When dealing with the number of representatives in the first or lower house, Pinckney provided (Art. 3) for a specific number from each State, in the first instance, and then by one of his terse emphatic sentences, "and the legislature shall hereafter regulate the number of delegates by the number of inhabitants, according to the provisions hereinafter made at the rate of one for every ---- thousand." The Committee adopted this verbatim but they prefaced it with an extraordinary apology or explanation, bearing some resemblance to the preamble of a statute (Art. 14, sec. 4): "As the proportions of numbers in different States will alter from time to time; as some of the States may hereafter be divided; as others may be enlarged by addition of territory; as two or more states may be united; as new states will be erected within the limits of the United States--the legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions hereinafter made, at the rate of one for every forty thousand." This "as," "as," "as," "as," "as" would be slovenly work even for a statute. It sounds little like a law, not at all like a constitution, much like an extract from a committee's report, justifying their work, explaining why a proposed provision may become at some unforeseen time, necessary or desirable. It is true that the former of these provisions was taken from the Articles of Confederation; and that the latter is a paraphrase of the 8th resolution, but that only makes the matter worse. Their verbosity and incongruity were thereby placed before the eyes of every member of the Committee; and the fact that such provisions, flagrantly verbose and inexcusably incongruous, went into a draught of the Constitution shows that not one of the five members commanded what may be called the style of the Constitution; while the additional fact that not one instance of such prolixity of detail is to be found in the Pinckney draught shows that he was the master of its style and not the Committee. There are unquestionably clauses and sentences and provisions in the Committee's draught which show the hand of the thoughtful statesman or of the good lawyer. Thus to Pinckney's provisions relating to the action of Congress on bills returned by the President with his objections, we have, "But, in all cases, the votes of both Houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the Journal of each House respectively." And to Pinckney's provisions concerning the conviction of treason, there is added, "No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted." In a word there is manifestly more than one hand in the Committee's work. In Pinckney's draught the warp and woof is of one texture from beginning to end. Even when an article is made up entirely of cullings from State constitutions and from the Articles of Confederation, the finished fabric is unquestionably of Pinckney's weaving. It is not to be inferred that the members of the Committee of Detail were mediocre men or that they were negligent of the grave duty assigned to them. Yet the work which they actually did only demonstrates that for them to have produced a complete draught of the Constitution--as complete as the one which they reported--entirely the work of their own hands, in the limited time allowed them would have been an impossibility. The reduction of the Constitution to a written form with all its details required research, reflection, patient work and unhurried thought. Through the wide field of State and Federal relations, through State constitutions and the Articles of Confederation the framer needed to search, weighing State prejudices and national necessities, taking what was desirable, but with equal care leaving what was objectionable. There were not five men in the world working in each other's way, discussing each other's work, who, unassisted, could have drawn up a constitution in which so much was embodied and so little overlooked and have brought their patchwork contributions into one harmonious whole within the time prescribed. The country was well filled with men of talents, of ability, of energy, of patriotic fervor, with men who knew the conditions of our national affairs, the difficulties of acting, the perils of inaction, and yet the fact, undeniable, is that only one man foresaw the coming necessity of the situation and had the forethought to prepare a draught of the Constitution for the use of the Convention. The more I have surveyed the situation, the greater has appeared the necessity for some such work at the time; the more I have studied the work of Pinckney, the more perfectly adapted to the necessities of the situation does it appear to have been. When Pinckney, foreseeing that a national Convention would be held and that if it failed to frame a constitution which would give to the waning Confederation the character and authority of nationality, the nationality of the Confederated States might disappear, he resolutely assigned to himself the task of framing one in which nationality should be secure and a national government above and independent of the States be the result. While yet a member of Congress he saw plainly these things--that the government of the Confederated States was drifting toward insolvency, for New York and Massachusetts alone had paid in full their quota of the Federal expenses; that it was drifting towards war; for at least one of the States was flagrantly violating the treaty of peace with Great Britain; that the Congress could neither raise money nor maintain a treaty; for the only power which it practically possessed was to beseech the States to pay their respective shares of the Federal expenses, and to pass as recently as March 21, 1787, resolutions urging on the States a repeal of all laws contravening the treaty of peace with Great Britain. Pinckney was then in the full flush of youthful egoism, but the oldest member of the Convention, even Franklin, could not have chosen his method of construction more wisely. Wherever constitutional material existed, Pinckney found it, and preferred it to his own. A single paragraph will give an effective object lesson of his careful composite work: "The United States shall not grant any title of nobility" (Art. Confederation VI). "The Legislature of the United States shall pass no law on the subject of religion" (Constitution of New York); "nor touching or abridging the liberty of the press" (Constitution Massachusetts); "nor shall the privilege of the writ of habeas corpus ever be suspended except in case of rebellion or invasion" (Constitution Mass.). The resolution of March 21, 1787 is as follows: "WEDNESDAY, MARCH 21, 1787. "Resolved, That the legislatures of the several states cannot of right pass any act or acts, for interpreting, explaining, or construing a national treaty or any part or clause of it; nor for restraining, limiting or in any manner impeding, retarding or counteracting the operation and execution of the same, for that on being constitutionally made, ratified and published, they become in virtue of the confederation, part of the law of the land, and are not only independent of the will and power of such legislatures, but also binding and obligatory on them." This becomes in the draught: "All acts made by the Legislature of the United States, pursuant to this Constitution, and all Treaties made under the authority of the United States, shall be the Supreme Law of the Land; and all Judges shall be bound to consider them as such in their decisions." I have spoken of the sentence, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States" as the most felicitous sentence in the Constitution, which passed through the Committee of Detail, the Committee of Style, and the Convention without the change of a single word. But in the Articles of Confederation the provision stood in this prolix form: "The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from Justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and egress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restriction shall not extend so far as to prevent the removal of property imported into any State, to any other State of which the owner is an inhabitant." That the work was Pinckney's we know, for the provisions set forth in articles 12 and 13 of his draught are described in the Observations. But though the work of Pinckney was built of the thoughts, phrases and provisions of other men, the structure was his own; and in its details as in its general design, he never failed in his intent that the new republic which he was trying to found should be a nation, and that its government should have all the powers, duties, responsibilities and authority essential and incidental to nationality. The thought may have been in other minds but another draughtsman by a slight change of expression might have warped the idea and left it of no avail. It is this comprehensive generality of treatment and expression which I am now inclined to hold was Pinckney's greatest contribution to the Constitution. Indeed if Marshall had laid his hand on Pinckney's shoulder and said, "Young man, so frame your constitution that I shall be able to interpret it according to the necessities of the Republic and in harmony with the general requirements of our nationality," Pinckney would not have needed to change a single line. For more than 70 years, Pinckney has been a condemned and misrepresented man, and what is strange, though not inexplicable, his disgrace was primarily caused by the indispensable work which he unselfishly performed for his country without honor and without reward. I began the foregoing investigation of the authenticity and verity of the draught in the State Department in consequence of the publication of Pinckney's letter to the Secretary of State in 1818 in which he states frankly that the paper sent is not a literal duplicate of the draught presented to the Convention and that the draught contained provisions which he subsequently condemned and openly opposed during the debates. I knew of the worst side of Pinckney's character--his egoism, his garrulousness, his lack of cautious common sense--and in my early study of the Constitution the Pinckney draught had seemed too much to be the work of one man, and the charges of Madison with the implications of Elliot and the silence of Story and the censure of Bancroft had confirmed my suspicion and left me with a poor opinion of the draught in the State Department and of the man who placed it there. The most which I expected from this investigation was that I should be able to say with tolerable certainty that a section here or a paragraph there in the Constitution, was the work of Pinckney. But when under the pressure of unquestionable facts, the charges of Madison fell to pieces; and when with the refutation of a charge, just so much of the draught would be positively verified and affirmed; and especially when it plainly appeared, not only that in sections and articles, and provisions and sentences, the one instrument agreed with the other but that in form and style, and phraseology and arrangement from the words of the preamble, "We the people do ordain, declare, and establish the following Constitution for the government of ourselves and posterity" to the words of the last article, "The ratifications of ---- States shall be sufficient for organizing this Constitution," the draught of the Committee of Detail follows the draught in the State Department, and the Constitution follows the draught of the Committee of Detail, I was slowly forced to the conclusion that the young South Carolinian on whom I had placed no high estimate, had rendered a great service at a critical time, and that but for his needed work, the Constitution would be, at least in form, a very different instrument from the one which we revere. My slowly formed conclusion is that if wise and judicious forethought, and much patient work well done, and a breadth of view commensurate with the greatness of the subject, and the production at a critical moment of a paper which all other men in or out of the Convention had neglected to prepare, entitle a man to the lasting recognition of his countrymen, there is no framer of the Constitution more entitled to be commemorated in bronze or marble than Charles Pinckney of South Carolina. CHAPTER XV CONCLUSIONS ON THE WHOLE CASE There are three reasons why the Pinckney Draught has been too readily discredited. The first is our respect for Madison, our belief that his knowledge far exceeded our own, and our deference to his repeatedly expressed opinion. The second is that the draught was never before the Convention and consequently never received the recognition of discussion. It was referred at the beginning to the Committee of the Whole; but it was not yet wanted, for the Committee debated only abstract propositions couched in formal resolutions. It was referred to the Committee of Detail; but that Committee reported only their own draught and the Convention had before them only the Committee's. The draught of Pinckney never came to a vote, was never discussed, and never received the slightest consideration in the Convention. The third reason for discrediting the draught is to be found in the exaggerated value which has been set upon it. It has seemed to be altogether too great an instrument to have been the work of one man. We have felt in a vague way that to concede that one man could have contributed so much to the great instrument would be to detract from the work and fame of the great men whom we call the framers of the Constitution, and from the Constitution itself. But the fact is that the draught of Pinckney is not so great as it seems. Coming from a man so well equipped for the work, so experienced in the existing affairs of our mixed governments and with such a clear comprehension of the conditions of the case, and having such a mass of material ready to his hand, the draught is not a marvelous production. That is to say the work considered as the work of so young a man is not so wonderful as at first it appears to be. It may come within the range of the improbable but not of the impossible. Madison has himself borne witness to the fact that the subject of a substitute for the tottering power of the Confederated States was in every man's mind; and that every intelligent man of that day was more or less fitted to draught a general outline of a new national government: "The resolutions of Mr. Randolph, the basis on which the deliberations of the Convention proceeded, were the result of a consultation among the Virginia deputies, who thought it possible that, as Virginia had taken so leading a part in reference to the Federal Convention, some initiative propositions might be expected from them. They were understood not to commit any of the members absolutely or definitively on the tenor of them. The resolutions will be seen to present the characteristics and features of a government as complete (in some respects, perhaps more so) as the plan of Mr. Pinckney, though without being thrown into a formal shape. The moment, indeed, a real constitution was looked for as a substitute for the Confederacy, the distribution of the Government into the usual departments became a matter of course with all who speculated upon the prospective change." Letter to W. A. Duer, June 5th, 1835. The difficulty of the hour was not in draughting a constitution, but in draughting one which would not arouse the jealous antagonism of the several States. That difficulty did not trouble Pinckney. His plan contemplated having the people of each State fairly, _i. e._, proportionately represented in his House of Delegates, and in making the several States as States unequivocally submissive to the new national authority. Pinckney had been for two years immediately before the sitting of the Convention, a delegate in the Congress of the Confederation. He had been the representative of South Carolina in the "grand committee" appointed to consider the alteration of the Articles of Confederation. He had been chairman of the subcommittee which draughted the committee's report of August, 1786; and (as Professor McLaughlin has pointed out) "the introducing phrases, as appears by reference to the manuscript papers of the old Congress, were written in Pinckney's own hand." In witnessing the inherent weakness and increasing degradation of the Congress, he had learned to appreciate the incapacity of the confederate system, and the necessity of a National government. No member of the Convention better appreciated those two things, or was better equipped for the task which he undertook; and there was no man in the country, except Madison, who had been through such a preparatory course and had such a combination of resources at his command. He was young, talented, experienced, ambitious, wealthy, unemployed and a ceaseless worker. The index of Madison's Journal witnesses to the immense amount of work which Pinckney did irrespective of the draught. If we discard the draught--the original draught, the disputed draught, and the draught described in the Observations, the fact will remain that Pinckney was an important contributor to the work of framing the Constitution. Pinckney's plan of government was precisely what we might expect it to be. He was an able but not a sagacious statesman; that is he saw clearly what he wanted, but he did not see what other men wanted. Neither did he anticipate as a sagacious statesman would, the ignorance, the adverse interests and the prejudices of those who ultimately would have the power to reject or ordain the work of the Convention. Therefore he originated none of the compromises which reconciled antagonistic views and made the Constitution possible. The great and difficult problems which confronted the Convention were not solved by the Draught. Pinckney in it provided for two legislative houses and based representation on population, neglecting to place the small States on an equal footing with the large States in the Senate. He provided for one Executive head as did every government in the world, but he devised no means for uniting harmoniously the large and small States in choosing the Executive. The Draught was an admirable instrument for its purpose--an admirable model for the workmen of the Convention to correct, alter and enlarge. It was crude and unfinished but it was in well chosen words and simple sentences, eschewing particulars and presenting in a masterly way great declaratory principles of government. Pinckney had a few fanciful provisions in his plan and yet he was a practical and not a fanciful constitution-maker, not above taking the best material he could find wherever he could find it, resorting to himself last; and not above throwing aside his own work and beginning again and again until he had patiently wrought out the best that his ability could do. But when in estimating the Constitutional value of the draught, we have given credit for the admirable construction of the plan of government and for the clear declaratory style of the instrument, and for the preamble, and when we have discarded his original schemes, not adopted by the Convention, such as the plan for the Senate, we find that the remainder of the draught is made up for the most part of details suggested by his experience in the Congress of the Confederated States, details which were culled by him with extraordinary care from the constitutions of New York and Massachusetts and the Articles of Confederation. In a word, the provisions which were rejected, such as a Senate chosen by the House of Representatives; such as a Senate having "the sole and exclusive power" to declare war, to make treaties, to appoint foreign ministers and judges of the Supreme Court; such as a national legislature having power to "revise the laws of the several States" and "to negative and annul" those which infringed the powers delegated to Congress--do not cause either wonder or admiration. It is the valuable practical provisions of the draught which provoke doubts. Yet these are for the most part the work of selection by an author thoroughly versed in what may be called the Constitutional literature and studies of the day, and who by experience knew precisely what was needed to transmute the Confederated States into an efficient National government. In our minds we picture the framers of the Constitution as remarkable men, sage in council, experienced in affairs of state. But there were two young men, the one 36, the other 30, who furnished the constructive minds of the Convention. Madison was foremost in framing the Virginia resolutions, which brought before the Convention questions for abstract discussion and bases on which to rest principles of government. Pinckney formulated a constitution which became a basis for the most of the concrete work. Both had had the severe practical training of members of the Congress of the Confederated States during the sorest period of its humiliating helplessness, the darkening days which preceded its dissolution. Both understood thoroughly the existing system which made the Federal government dependent upon its States and therefore inferior to them; and they knew by what had been to them bitter experience that the solvency of the Federal government was dependent upon the voluntary contributions of each and all of the States, and that a single one of the great States by refusing to pay its quota could bring the nation to bankruptcy. They knew too that while the general government could make treaties, the States could violate them--that they had violated them, and even then had brought the country to the verge of a foreign war. Their minds recoiled, as the minds of young men naturally would, to the opposite extreme, and each believed in the subversion of the States. How fully they agreed a single illustration will disclose. On Friday, June 8th, "Mr. Pinckney moved 'that the National Legislature shd. have authority to negative all laws which they shd. judge to be improper.' He urged that such a universality of the power was indispensably necessary to render it effectual; that the States must be kept in due subordination to the nation; that if the States were left to act of themselves in any case, it wd. be impossible to defend the national prerogatives, however extensive they might be on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations; that this universal negative was in fact the corner stone of an efficient national Govt." "Mr. Madison seconded the motion. He could not but regard an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect System. Experience had evinced a constant tendency in the States to encroach on the federal authority; to violate national Treaties; to infringe the rights and interests of each other; to oppress the weaker party within their respective jurisdictions. A negative was the mildest expedient that could be devised for preventing these mischiefs." But it was for these same reasons that neither Madison nor Pinckney attempted to frame a compromise. Each wanted a national government with unequivocal powers. Each ignored the jealousy of the small States, the apprehensions of the slave States, the increasing preponderence of the free States. Both intended that these elements of distrust should be absorbed by the overwhelming power of the new national government. For more than 100 years the American people have kept the cardinal idea of these youthful statesmen buried from sight or contemplation as something impractical or dangerous but they are now beginning to ask themselves whether an overwhelming national government is not the better agency for the control and management of their modern, complex, national life. Considering that Madison and Pinckney worked in such different fields, the abstract and the concrete, it is remarkable that the work of the one repeatedly and constantly agrees with the work of the other. Considering that they had worked side by side for years conferring daily on the same absorbing subject, encountering the same difficulties, thwarted by the same obstacles, defeated by the same incapacities, their minds intent on the same ends, it is not remarkable that an identity of purpose was followed, though in different forms, by an identity of results and that the work of Pinckney was little more than an embodiment of the propositions of Madison. Together they furnished just what the necessities of the hour required, ideas of government for consideration and discussion; formulated constitutional provisions for amendment and adoption. Greatly to be regretted it is that the two men who did such valuable interserviceable work for the cause to which their lives were then devoted, and whose names should be most closely associated in the history of the Constitution, now appear so irretrievably antagonistic. There are some provisions in the draught which are not sustained by the confirmatory fact of being incorporated in the draught of the Committee of Detail, and notably the following: "The legislature of the United States shall have the power" "to pass laws for arming, organizing and disciplining the militia of the United States," Art. 6. This power to organize and discipline the militia was a radical transfer of authority from the States to the new national government, a power which the committee were not instructed to transfer and which accordingly they did not incorporate in their draught. But it is specifically set forth in the Observations as one of the provisions of the draught; and on the 18th of August Pinckney advocated in the Convention substantially the same thing. The draught also provides that the legislature of the United States shall have power, "To provide for the establishment of a seat of government for the United States, not exceeding ---- miles square, in which they shall have exclusive jurisdiction." Art. 6. This also was a radical innovation which the Committee could not adopt without authority. But it was also specifically set forth in the Observations; and on the 18th of August Pinckney moved in the Convention; "To fix and permanently establish the seat of government of the United States in which they shall possess the exclusive right of soil and jurisdiction." The draught also provides, "nor shall the privilege of the writ of habeas corpus ever be suspended, except in cases of rebellion or invasion." Art. 6. The Convention shrank from the insertion of a bill of rights in the Constitution because, as was subsequently explained, it was feared that it might bring up the subject of slavery, one member insisting that it should contain a declaration against slavery, and another that it should specifically declare that it did not extend to slaves. Accordingly the committee did not incorporate this declaration of right in their draught. But it is set forth in the Observations; and on the 20th of August Pinckney proposed in the Convention a stronger and more explicit provision. These provisions, therefore, are sustained by the public, contemporaneous avowal of Pinckney that they were in the draught which he had prepared for the use of the Convention; and by the recorded facts that when he found that the committee had not considered them as within their jurisdiction and had not incorporated them in their draught he brought them before the Convention and sought to have them inserted in the Constitution. As it is certain that the ideas were his, and that he formulated them into provisions substantially identical with those in the State Department draught, at the time when the Convention was considering the respective subjects, it requires very little additional assurance to make us accept them as a part of the draught presented to the Convention. Conversely, there are provisions which may have been in the draught presented to the Convention, but which are not in the draught filed in the State Department. The most notable of these is the one relating to patents and copyright. Pinckney says in the Observations "There is also an authority to the national legislature" "to secure to authors the exclusive right to their performances and discoveries;" and on the 18th of August he moved in the Convention to insert among other powers "To grant patents for useful inventions." If the provision was in the original draught, the Committee of Detail were not authorized to adopt it and did not; but the Convention did and it became a part of the Constitution. Pinckney was constantly nursing his draught, revising, amending, rearranging, and it is not improbable that he inserted this provision in one copy and neglected to insert it in the others. But he certainty seems to have been the author of it. From one point of view it may seem a needless Constitutional provision; for a national legislature could so legislate without it. But under the British Constitution monopolies were a prerogative of the Crown, and a patent was deemed a monopoly. Pinckney therefore did wisely in expressly assigning patent-rights and copyrights to the legislative branch of the Government, giving to the mind-work of the inventor or author the character of property and the safeguard of the law. Another provision is the compromise relating to slave representation. In the State Department draught it is provided that the number of the delegates shall be regulated "by the number of inhabitants" (Art. 3) and that "the proportion of direct taxation shall be regulated by the whole number of inhabitants of every description." In the Observations he says that his plan contains a provision "for empowering Congress to levy taxes upon the States, agreeable to the rule now in use, an enumeration of the white inhabitants, and three-fifths of other descriptions." In the Convention on the 12th of July, "Mr. Pinckney moved to amend Mr. Randolph's motion so as to make 'blacks equal to the whites in the ratio of representation.' This he urged was nothing more than justice. The blacks are the labourers, the peasants of the Southern States: they are as productive of pecuniary resources as those of the Northern States. They add equally to the wealth, and, considering money as the sinews of war, to the strength of the nation. It will also be politic with regard to the Northern States, as taxation is to keep pace with Representation." This is conclusive as to Pinckney's views. It confirms the draught in the State Department and shows too that the copy of the draught on which the Observations were founded differed in this detail from the draught presented to the Convention. On a review of the entire case I have reached the following conclusions: 1. The draught in the State Department agrees so closely with the draught of the Committee of Detail, in form, in phraseology, in structure, in arrangement, in extent, in its beginning and its ending that unquestionably the one draught must have followed the other. There can be no middle ground here. 2. With the uncovering of the Committee's draught and the bringing of the Observations into the case and the confirmatory matter in the Randolph and Wilson draughts, it becomes evident that the suspected fraud was an impossibility. That is to say, when Pinckney described in the Observations the draught which he was subsequently to present to the Convention he thereby described the draught which he was ultimately to place in the Department of State. In a word, if a fraud was perpetrated in 1818, it must have been begun in 1787, before the Convention met, which is a reductio ad absurdum. 3. The Observations were printed and published during the lifetime of every member of the Convention, including the five members of the Committee of Detail, and Pinckney immediately republished them in the South Carolina State Gazette. In 1819 when the copy of the draught was published and circulated as a public document there were 16 members of the Convention still living, among whom was Madison, the chronicler of the Convention. It must therefore be held that Pinckney did not conceal anything or shrink from investigation; and that all which he did was done in due time, in the light of day and in the most open manner. Indeed it may be asked whether there ever was an historical document which was so doubly published and declared both prior to and at the time when it was produced as the Pinckney draught; or which could have been so easily refuted, if it was really refutable? A court of justice in such a case would say, "The plea of fraud is sustained by no evidence whatever. To allow a document which was placed in the files of the Government at the instance of a high officer of State to be attacked and discredited because of the doubts and suspicions of individuals, no matter how eminent and intelligent, would be a monstrous abuse of authority which can not be upheld in either law or morals." 4. A question may be raised as to whether the Journal of Madison can properly be admitted as evidence against the claim of Pinckney; and it must be conceded that Madison occupied the position of a controversialist; that during the whole of the period of controversy his chronicle of the Convention was in his exclusive possession; and that it was within his power at any moment to obliterate parts or passages which, coming to the knowledge of the world, would weaken his own position and vindicate Pinckney and sustain the draught. But such a suggestion against the integrity of such a man is not to be lightly entertained. It is no more to be believed without evidence (and evidence of the most clear and unequivocal character) that Madison, for his own purposes, obliterated historical evidence, than that Pinckney fabricated it. Each was a member of the Congress of the Confederation; each was a delegate to the great Convention; each was eminent for his zeal in the prolonged and often hopeless work of framing the Constitution; each has left behind him a long record of distinguished public life. The one laboriously prepared the only draught of the Constitution that was made for the use of the Convention; and the other laboriously prepared the only chronicle of the framers' work which the world possesses. It is not for the bitterness of controversy, heedlessly, to assail such men. 5. The Journal of Madison must be received as authentic history. At the same time it must be borne in mind that it was not written with the fulness and precision of the modern stenographer. Madison could not transcribe the words which a speaker uttered and leave us to ascertain the speaker's meaning from his words. All that such a reporter could do was to record what he believed to be the speaker's meaning. It follows that condensed passages, isolated sentences, casual turns of expression cannot be used as admissions against Pinckney, and must be considered with disinterested caution, if they be considered at all. * * * * * Time which destroys, also discloses; and time may bring to light some record which will change the conclusions of to-day. But as the case now stands it must be said that the Pinckney Draught in the Department of State is (with the exceptions before noted), all that Pinckney represented it to be. CHAPTER XVI OF PINCKNEY PERSONALLY Pinckney was in the fourth generation of a family which had been distinguished for more than one hundred years for its public services. He had been elected to the provincial legislature of South Carolina before he had come of age; and he had made himself before the sitting of the Convention a prominent member of the Congress of the Confederated States. He had a clearer apprehension of the actual needs of American nationality than any other member of the Convention. This may be seen in his Observations and in his speech of the 25th of June. There is a passage in that speech in which anticipating the Farewell Address of Washington and the peace policy of Jefferson he looks forward through the ensuing century of the Constitution and depicts the practical blessings which it was to bring to the American people with a clearness and accuracy that is extraordinary: "Our true situation appears to me to be this--a new, extensive country, containing within itself the materials for forming a government capable of extending to its citizens all the blessings of civil and religious liberty--capable of making them happy at home. This is the great end of republican establishments. We mistake the object of our government, if we hope or wish that it is to make us respectable abroad. Conquests or superiority among other powers is not, or ought not ever to be, the object of republican systems. If they are sufficiently active and energetic to rescue us from contempt, and preserve our domestic happiness and security, it is all we can expect from them--it is more than almost any other government insures to its citizens." Pinckney's experience in the Congress of the Confederation made him despise the existing Federal Government and undervalue the local authority of the States. He came into the Convention its most extreme Federalist--more so even than Hamilton. As he said in the Observations: "In the federal councils, each State ought to have a weight in proportion to its importance; and no State is justly entitled to greater." "The Senatorial districts into which the Union is to be divided [in his plan] will be so apportioned as to give to each its due weight, and the Senate calculated in this as it ought to be in every government, to represent the wealth of the nation." "The next provision [in his draught] is intended to give the United States in Congress, not only a revision of the legislative acts of each State, but a negative upon all such as shall appear to them improper." "The idea that has been so long and falsely entertained of each being a sovereign State, must be given up; for it is absurd to suppose there can be more than one sovereignty within a government." "Upon a clear and comprehensive view of the relative situation of the Union, and its members, we shall be convinced of the policy of concentring in the federal head a complete supremacy in the affairs of government." In the Convention Pinckney moved that the members of the lower House should be chosen by the legislatures "of the several States"; but this was the one thing which he conceded to "the several States." The Senate was to be chosen by the House of Delegates; and what is more significant, the Senate was not to represent States, with the saving clause, "Each State shall be entitled to have at least one member in the Senate." Finally he would strike an absolutely fatal blow at State sovereignty by providing, "the Legislature of the United States shall have the power to revise the Laws of the several States that may be supposed to infringe the powers exclusively delegated by this Constitution to Congress, and to negative and annul such as do." Knowing as we do of Pinckney's youth (he was not yet 30) and of Madison's poor opinion of him, it is desirable that we should know, if possible, what his contemporaries in the Convention thought of him. William Pierce the delegate from Georgia who has left to us the anecdote of Washington before quoted (p. 230) noted at the time his impressions of the leading members of the Convention. From these I select his sketches of four of the young members of the Convention who had even then attained distinction, Edmund Randolph, Rufus King, Alexander Hamilton and Charles Pinckney: "Mr. Randolph is Governor of Virginia--a young gentleman in whom unite all the accomplishments of the Scholar and the Statesman. He came forward with the postulata or first principles on which the Convention acted; and he supported them with a force of eloquence and reasoning that did him great honor. He has a most harmonious voice, a fine person and striking manners." "Mr. King is a Man much distinguished for his eloquence and great parliamentary talents. He was educated in Massachusetts, and is said to have good classical as well as legal knowledge. He has served for three years in the Congress of the United States with great and deserved applause, and is at this time high in the confidence and approbation of his Countrymen. This Gentleman is about thirty-three years of age, about five feet ten Inches high, well formed, an handsome face, with a strong expressive Eye, and a sweet high toned voice. In his public speaking there is something peculiarly strong and rich in his expression, clear, and convincing in his arguments, rapid and irresistible at times in his eloquence but he is not always equal. His action is natural, swimming, and graceful, but there is a rudeness of manner sometimes accompanying it. But take him _tout en semble_, he may with propriety be ranked among the Luminaries of the present age." "Col. Hamilton is deservedly celebrated for his talents. He is a practitioner of the Law, and reputed to be a finished Scholar. To a clear and strong judgment he unites the ornaments of fancy, and whilst he is able, convincing, and engaging in his eloquence the Heart and Head sympathize in approving him. Yet there is something too feeble in his voice to be equal to the strains of oratory;--it is my opinion that he is a convincing Speaker, that (than) a blazing Orator. Col. Hamilton requires time to think,--he enquires into every part of his subject with the searchings of phylosophy, and when he comes forward he comes highly charged with interesting matter, there is no skimming over the surface of a subject with him, he must sink to the bottom to see what foundation it rests on.--His language is not always equal, sometimes didactic like Bolingbroke's, at others light and tripping like Sterne's. His eloquence is not so defusive as to trifle with the senses, but he rambles just enough to strike and keep up the attention. He is about 33 years old, of small stature, and lean. His manners are tinctured with stiffness, and sometimes with a degree of vanity that is highly disagreeable." "Mr. Charles Pinckney is a young Gentleman of the most promising talents. He is, altho' only 24 [29] y's of age, in possession of a very great variety of knowledge. Government, Law, History and Phylosophy are his favorite studies, but he is intimately acquainted with every species of polite learning, and has a spirit of application and industry beyond most Men. He speaks with neatness and perspicuity, and treats every subject as fully, without running into prolixity, as it requires. He has been a member of Congress, and served in that Body with ability and eclat." (_William Pierce of Georgia_; 3 Amer. Hist. Review, 313.) In this materialistic world of cause and effect there sometimes seem to be recurring fatalities which attend individuals that needlessness has not caused and that foresight could not have prevented--a fate of fire or flood or shipwreck, of good fortune or of bad fortune, of successes or of casualties of escapes or of disasters--a fate that fastens upon an individual and cannot be shaken off. The fate assigned to Pinckney seems to have been oblivion. Substantially everything which he prized is gone. His house was one of the finest in Charleston, if not the finest, and it was destroyed. He believed his library to be the most valuable library in the South and his great gallery to hold the rarest pictures in this country yet but a few volumes remain of the one and but two portraits of the other. His garden was the most beautiful in the State, it was his pride, his delight, and obliteration has indeed been its portion; even the soil which bore him flowers and shrubbery and trees and was laden with all the loveliness of semi-tropical vegetation is gone; for it was carried away during the Civil War to make military defenses. At the beginning of this investigation I began to search for the papers of which Pinckney speaks in his letter to the Secretary of State--papers which might throw new light on the framing of the Constitution or solve the problem of the contents of the draught. In this search General McCrady, of Charleston kindly and sympathetically co-operated, but I soon received his assurance that the quest was not a new one for him, and that neither in the Historical Society of South Carolina of which he was President nor in the possession of his friends could a document or paper or even a letter be found. At that time I desired to obtain a specimen of Pinckney's early handwriting and accordingly carried my pursuit into the circle of his direct descendants; but the sad reply came from his great-grandson, Mr. Charles Pinckney of Claremont, South Carolina that "all of his papers and private manuscripts were destroyed in the great fire in Charleston in 1861," and that his descendants possess "no remains of his handwriting except the autographs in his books." Letters and papers of eminent men are constantly coming to the light from unexpected hiding places and there is the official correspondence in the State Department and papers may exist in the public offices of South Carolina, but apart from these, my investigation stops at a point where it must be said that not so much as a single line of the writing of Charles Pinckney now exists. In 1787 while Pinckney was in the full possession of his youthful power and fortune and all those things which give a man a prestige above his fellows, fate seems to have leaned forward and touched the instrument which was the supreme work of his life, the Draught of the Constitution of the United States--and to have set a seal upon the lips of every man who could testify as to its contents. If ever there was a paper of which it might be predicted that it would survive its time and be securely kept, that was the paper. The Convention was composed of the most orderly, caretaking and reputable of men, and the author of the draught was one of them. The command of the Convention was that its papers should be preserved. The papers were placed in the custody of the most scrupulous of men and by him transferred to the official guardianship of a department of the Government, and there we might expect to find the draught of Pinckney; but fate had touched the great State paper, and we find only that it had vanished mysteriously from the earth. * * * * * The following biographical sketch is by Mr. Wm. S. Elliott, of South Carolina, a grand nephew of Pinckney: "In the diploma, by which the degree of Doctor of Laws was conferred upon him by the University of Princeton, New Jersey, it is expressly declared, that it 'is conferred on account of high acquirements, learning and ability, and particularly for his distinguished services in Congress and the Federal Convention.' From 1787 to 1789, he was traveling on the Continent and on his return, was elected Governor of the State. While Governor, he was a delegate to, and made president of the State Convention for forming the Constitution. In 1791 he was chosen a second time, and in 1796 a third time, Governor of the State; in 1798 a Senator in Congress, where he remained until 1801, when Mr. Jefferson appointed him Minister Plenipotentiary to Spain, with power to treat for the purchase of Louisiana and Florida. On his return in 1806, he was a fourth time honored with the position of Governor of the State, and he is the only citizen who has been so frequently elevated to the executive chair. From this period he retired from public life, until in 1818, when he was elected under great party excitement to the United States House of Representatives by Charleston District, and he here closed his political life with his speech in opposition to the Missouri Compromise. "Family tradition and genealogical history are the very reverse of amber, which, itself a valuable substance, usually includes trifles; whereas, these trifles being in themselves very insignificant and trifling do, nevertheless, serve to perpetuate a great deal of what is rare and valuable in ancient manners, and to record many curious and minute facts, which could have been preserved and conveyed through no other medium. "Charles Pinckney professed an exquisite appreciation of the beautiful in nature and in art. His collection of paintings, statuettes, medals, etc., rendered his house almost a museum. His fine library, occupying an entire suite of three large rooms--the floors and windows of which were kept richly carpeted and curtained, while the ceilings were decorated with classic representations--is supposed to have contained near twenty thousand of the rarest and choicest books, collected from every part of the Continent, and in every language spoken in the enlightened world." Thomas Pinckney, who settled in South Carolina in 1687, was the father of (2) (3) William, Thomas. Master in Chancery. His Son, Col. Chas. Pinckney. His Son, Governor Charles Pinckney. His Son, Hon. Henry L. Pinckney. "A life of Charles Pinckney was prepared and in the possession of the Hon. Henry L. Pinckney for revision and addition; with it were his valuable papers. The fire of 1861, which desolated the city of Charleston, destroyed almost everything, and this, and the former essay, are compiled from many stray notes, mutilated manuscripts and a few papers, still in our possession. "A very strange and melancholy feeling overtakes us as we search the remains of Charles Pinckney. Here is a man upon whom Heaven appears to have showered its gifts. Distinguished in ancestry, possessing fine intellect, vigorous health, and large fortune, with his political ambition fully gratified, of refined tastes and cultivation, linking his name successfully and eminently, with his day and his race, and yet, here are his memorials in a few tattered bits of paper, scarcely decipherable. His ashes are in the family burying ground. The spot is known. No stone, however, marks his final resting-place. His house in Charleston years ago, passed into the hands of the stranger, and has been torn down. The very earth has been removed, and now forms one of the fortifications of White Point Battery, erected during the late war for the defense of the city of Charleston. The library is broken and scattered. The picture of Lady Hamilton, and his own portrait, are the only two that we know of that remain of his once splendid gallery. The beautiful grounds of "FEE FARM" have disappeared, and the plough runs its furrows through the grove, and the grave-yard.". DeBow's Review, April 2, 1866. APPENDIX MR. CHARLES PINCKNEY'S DRAUGHT OF A FEDERAL GOVERNMENT We the people of the States of New Hampshire Massachusetts Rhode Island & Providence Plantations--Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Caroline South Carolina & Georgia do ordain declare & establish the following Constitution for the Government of Ourselves and Posterity. Article 1: The Stile of This Government shall be The United States of America & The Government shall consist of supreme legislative Executive and judicial Powers-- 2 The Legislative Power shall be vested in a Congress To consist of Two separate Houses--One to be called The House of Delegates & the other the Senate who shall meet on the * * * day of * * * in every Year 3 The members of the House of Delegates shall be chosen every * * * Year by the people of the several States & the qualification of the electors shall be the same as those of the Electors in the several States for their legislatures--each member shall have been a citizen of the United States for * * * Years--shall be of * * * Years of age & a resident of the State he is chosen for--until a census of the people shall be taken in the manner herein after mentioned the House of Delegates shall consist of * * * to be chosen from the different states in the following proportions--for New Hampshire. * * * for Massachusetts * * * for Rhode Island * * *. for Connecticut. * * * for New York * * * for New Jersey, * * * for Pennsylvania. * * * for Delaware * * * for Maryld * * * for Virginie. * * * for North Caroline * * * for South Carolina----. for Georgia----. & the Legislature shall hereafter regulate the number of delegates by the number of inhabitants according to the Provisions hereinafter made, at the rate of one for every * * * thousand----all money bills of every kind shall originate in the house of Delegates & shall not be altered by the Senate--The House of Delegates shall exclusively possess the power of impeachment & shall choose its own Officers & Vacancies therein shall be supplied by the Executive authority of the State in the representation from which they shall happen-- 4 The Senate shall be elected & chosen by the House of Delegates which House immediately after their meeting shall choose by ballot * * * Senators from among the Citizens & residents of New Hampshire. * * * from among those of Massachusetts. * * * from among those of Rhode Island. * * * from among those of Connecticut. * * * from among those of New York. * * * from among those of New Jersey * * * from among those of Pennsylvanie * * * from among those of Delaware-- * * * from among those of Maryland, * * * from among those of Virginia * * * from among those of North Caroline * * * from among those of South Caroline & * * * from among those of Georgia-- The Senators chosen from New Hampshire Massachusetts Rhode Island & Connecticut shall form one class--those from New York New Jersey Pennsylvanie & Delaware one class--& those from Maryland Virginie North Caroline South Caroline & Georgia one class-- The House of Delegates shall number these Classes one two three & fix the times of their service by Lot--the first Class shall serve for * * * Years--the second for * * * Years & the third for * * * Years--as their Times of service expire the House of Delegates shall fill them up by Elections for * * * Years & they shall fill all Vacancies that arise from death or resignation for the Time of service remaining of the members so dying or resigning-- Each Senator shall be * * * years of age at leest--shall have been a Citizen of the United States at 4 Years before his Election & shall be a resident of the state he is chosen from-- The Senate shall choose its own Officers 5 Each State shall prescribe the time & manner of holding Elections by the People for the house of Delegates & the House of Delegates shall be the judges of the Elections returns & Qualifications of their members. In each house a Majority shall constitute a Quorum to do business--Freedom of Speech & Debate in the legislature shall not be impeached or Questioned in any place out of it & the Members of both Houses shall in all cases except for Treason Felony or breach of the Peace be free from arrest during their attendance at Congress & in going to & returning from it--both houses shall keep journals of their Proceedings & publish them except on secret occasions & the yeas and nays may be entered thereon at the desire of one * * * of the members present. Neither house without the consent of the other shall adjourn for more than * * * days nor to any Place but where they are sitting. The members of each house shall not be eligible to or capable of holding any office under the Union during the time for which they have been respectively elected nor the members of the Senate for one Year after-- The members of each house shall be paid for their services by the State's which they represent-- Every bill which shall have passed the Legislature shall be presented to the President of the United States for his revision--if he approves it he shall sign it--but if he does not approve it he shall return it with his objections to the house it originated in, which house if two thirds of the members present, notwithstanding the Presidents objections agree to pass it, shall send it to the other house with the Presidents Objections, where if two thirds of the members present also agree to pass it, the same shall become a law--& all bills sent to the President & not returned by him within * * * days shall be laws unless the Legislature by their adjournment prevent their return in which case they shall not be laws. 6th The Legislature of the United States shall have the power to lay & collect Taxes, Duties, Imposts & Excises To regulate Commerce with all nations & among the several states-- To borrow money & emit bills of Credit To establish Post Offices To raise armies To build & equip Fleets To pass laws for arming organising & disciplining the Militia of the United States-- To subdue a rebellion in any state on application of its legislature To coin money & regulate the Value of all coins & fix the Standard of weights & measures To provide such Dock Yards & arsenals & erect such fortifications as may be necessary for the United States, & to exercise exclusive Jurisdiction therein To appoint a Treasurer by ballott To constitute Tribunals inferior to the Supreme Court To establish Post & military roads To establish and provide for a national University at the Seat of the Government of the United States-- To establish uniform rules of Naturalization To provide for the establishment of a Seat of Government for the United States not exceeding * * * miles square in which they shall have exclusive jurisdiction To make rules concerning Captures from an Enemy To declare the law & Punishment of piracies & felonies at sea & of counterfeiting Coin & of all offences against the Laws of Nations To call forth the aid of the Militia to execute the laws of the Union enforce treaties suppress insurrections & repel invasions And to make all laws for carrying the foregoing powers into execution.-- The Legislature of the United States shall have the Power to declare the Punishment of Treason which shall consist only in levying War against the United States or any of them or in adhering to their Enemies.--No person shall be convicted of Treason but by the Testimony of two Witnesses.-- The proportions of direct Taxation shall be regulated by the whole number of inhabitants of every description which number shall within * * * Years after the first meeting of the Legislature & within the term of every * * * Years after be taken in the manner to be prescribed by the legislature No tax shall be laid on articles exported from the States--nor capitation tax but in proportion to the Census before directed All laws regulating Commerce shall require the assent of two thirds of the members present in each house-- The United States shall not grant any title of Nobility-- The Legislature of the United States shall pass no Law on the subject of Religion, nor touching or abridging the Liberty of the Press nor shall the Privilege of the Writ of Habeas Corpus ever be suspended except in case of Rebellion or Invasion All acts made by the Legislature of the United States pursuant to this Constitution & all Treaties made under the authority of the United States shall be the Supreme Law of the Land & all Judges shall be bound to consider them as such in their decisions 7 The Senate shall have the sole and exclusive power to declare war & to make treaties & to appoint Ambassadors & other Ministers to Foreign nations & Judges of the Supreme Court They shall have the exclusive power to regulate the manner of deciding all disputes & Controversies now subsisting or which may arise between the States respecting Jurisdiction or Territory 8 The Executive Power of the United States shall be vested in a President of the United States of America which shall be his stile & his title shall be His Excellency----He shall be elected for * * * Years & shall be re-eligible. He shall from time give information to the Legislature of the state of the Union & recommend to their consideration the measures he may think necessary--he shall take care that the laws of the United States be duly executed: he shall commission all the Officers of the United States & except as to Ambassadors other ministers & Judges of the Supreme Court he shall nominate & with the consent of the Senate appoint all other Officers of the United States--He shall receive public Ministers from foreign nations & may correspond with the Executives of the different states--He shall have power to grant pardons and reprieves except in impeachments--He shall be commander in chief of the army & navy of the United States & of the Militia of the several states, & shall receive a compensation which shall not be increased or diminished during his continuance in office--At Entering on the Duties of his office he shall take an Oath to faithfully execute the duties of a President of the United States--He shall be removed from his office on impeachment by the house of Delegates & Conviction in the supreme Court of Treason bribery or Corruption--In case of his removal death resignation or disability The President of the Senate shall exercise the duties of his office until another President be chosen--& in case of the death of the President of the Senate the Speaker of the House of Delegates shall do so---- 9 The Legislature of the United States shall have the Power & it shall be their duty to establish such Courts of Law Equity & Admiralty as shall be necessary--the Judges of these Courts shall hold their Offices during good behavior & receive a compensation which shall not be increased or diminished during their continuance in office--One of these Courts shall be termed the Supreme Court whose Jurisdiction shall extend to all cases arising under the laws of the United States or affecting ambassadors other public Ministers & Consuls--To the trial of impeachments of Officers of the United States--To all cases of Admiralty & maritime jurisdiction--In cases of impeachment affecting Ambassadors and other public Ministers the Jurisdiction shall be original & in all the other cases appellate-- All Criminal offences (except in cases of impeachment) shall be tried in the state where they shall be committed--the trial shall be open & public & be by Jury-- 10 Immediately after the first census of the people of United States the House of Delegates shall apportion the Senate by electing for each State out of the Citizens resident therein one Senator for every * * * members such state shall have in the house of Delegates--Each State however shall be entitled to have at least one member in the Senate------ 11 No State shall grant Letters of marque & reprisal or enter into treaty or alliance or confederation nor grant any title of nobility nor without the Consent of the Legislature of the United States lay any impost on imports--nor keep Troops or Ships of War in Time of peace--nor enter into compacts with other states or foreign powers or emit bills of Credit or make anything but Gold Silver or Copper a Tender in payment of debts nor engage in War except for self defence when actually invaded or the danger of invasion is so great as not to admit of delay until the Government of the United States can be informed thereof--& to render these prohibitions effectual the Legislature of the United States shall have the power to revise the laws of the several states that may be supposed to infringe the Powers exclusively delegated by the Constitution to Congress & to negative & annul such as do 12 The Citizens of each state shall be entitled to all privileges & immunities of Citizens in the several states-- Any person charged with Crimes in any State fleeing from Justice in another shall on demand of the Executive of the State from which he fled be delivered up & removed to the State having jurisdiction of the Offence-- 13 Full faith shall be given in each State to the acts of the Legislature & to the records & judicial Proceedings of the Courts & Magistrates of every State 14 The Legislature shall have power to admit new States into the Union on the same terms with the original States provided two thirds of the members present in both houses agree 15 On the application of the legislature of a State the United States shall protect it against domestic insurrections 16 If Two Thirds of the Legislatures of the States apply for the same The Legislature of the United States shall call a Convention for the purpose of amending the Constitution--Or should Congress with the Consent of Two thirds of each house propose to the States amendments to the same--the agreement of Two Thirds of the Legislatures of the States shall be sufficient to make the said amendments Parts of the Constitution The Ratifications of the * * * Conventions of * * * States shall be sufficient for organizing this Constitution.-- * * * * * DRAUGHT OF THE COMMITTEE OF DETAIL. We the People of the States of New Hampshire, Massachusetts, Rhode-Island, and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare and establish the following Constitution for the Government of Ourselves and our Posterity. Article I The stile of this Government shall be, "The United States of America." II The Government shall consist of supreme legislative, executive and judicial powers. III The legislative power shall be vested in a Congress, to consist of two separate and distinct bodies of men, a House of Representatives, and a Senate; each of which shall in all cases, have a negative on the other. The Legislature shall meet on the first Monday in December in every year. IV _Sect. 1._ The Members of the House of Representatives shall be chosen every second year, by the people of the several States comprehended within this Union. The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States, of the most numerous branch of their own legislatures. _Sect. 2._ Every Member of the House of Representatives shall be of the age of twenty-five years at least; shall have been a citizen in the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen. _Sect. 3._ The House of Representatives shall, at its first formation, and until the number of citizens and inhabitants shall be taken in the manner herein after described, consist of sixty-five Members, of whom three shall be chosen in New Hampshire, eight in Massachusetts, one in Rhode-Island and Providence Plantations, five in Connecticut, six in New York, four in New Jersey, eight in Pennsylvania, one in Delaware, six in Maryland, ten in Virginia, five in North-Carolina, five in South-Carolina, and three in Georgia. _Sect. 4._ As the proportions of numbers in the different States will alter from time to time; as some of the States may hereafter be divided; as others may be enlarged by addition of territory; as two or more States may be united; as new States will be erected within the limits of the United States, the Legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions herein after made, at the rate of one for every forty thousand. _Sect. 5._ All bills for raising or appropriating money, and for fixing the salaries of the officers of government, shall originate in the House of Representatives, and shall not be altered or amended by the Senate. No money shall be drawn from the public Treasury, but in pursuance of appropriations that shall originate in the House of Representatives. _Sect. 6._ The House of Representatives shall have the sole power of impeachment. It shall choose its Speaker and other officers. _Sect. 7._ Vacancies in the House of Representatives shall be supplied by writs of election from the executive authority of the State, in the representation from which they shall happen. V _Sect. 1._ The Senate of the United States shall be chosen by the Legislatures of the several States. Each Legislature shall chuse two members. Vacancies may be supplied by the Executive until the next meeting of the Legislature. Each member shall have one vote. _Sect. 2._ The Senators shall be chosen for six years; but immediately after the first election they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two and three. The seats of the members of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, of the third class at the expiration of the sixth year, so that a third part of the members may be chosen every second year. _Sect. 3._ Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen. _Sect. 4._ The Senate shall chuse its own President and other officers. VI _Sect. 1._ The times and places and the manner of holding the elections of the members of each House shall be prescribed by the Legislature of each State; but their provisions concerning them may, at any time, be altered by the Legislature of the United States. _Sect. 2._ The Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient. _Sect. 3._ In each House a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day. _Sect. 4._ Each House shall be the judge of the elections, returns and qualifications of its own members. _Sect. 5._ Freedom of speech and debate in the Legislature shall not be impeached or questioned in any court or place out of the Legislature; and the members of each House shall, in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it. _Sect. 6._ Each House may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member. _Sect. 7._ The House of Representatives, and the Senate, when it shall be acting in a legislative capacity, shall keep a journal of their proceedings, and shall, from time to time, publish them: and the yeas and nays of the members of each House, on any question, shall, at the desire of one-fifth part of the members present, be entered on the journal. _Sect. 8._ Neither House, without the consent of the other, shall adjourn for more than three days nor to any other place than that at which the two Houses are sitting. But this regulation shall not extend to the Senate, when it shall exercise the powers mentioned in the * * * article. _Sect. 9._ The members of each House shall be ineligible to, and incapable of holding any office under the authority of the United States, during the time for which they shall respectively be elected: and the members of the Senate shall be ineligible to, and incapable of holding any such office for one year afterwards. _Sect. 10._ The members of each House shall receive a compensation for their services, to be ascertained and paid by the State, in which they shall be chosen. _Sect. 11._ The enacting stile of the laws of the United States shall be. "Be it enacted, and it is hereby enacted by the House of Representatives, and by the Senate of the United States, in Congress assembled." _Sect. 12._ Each House shall possess the right of originating bills, except in the cases beforementioned. _Sect. 13._ Every bill, which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States for his revision: if, upon such revision, he approve of it, he shall signify his approbation by signing it: But if, upon such revision, it shall appear to him improper for being passed into a law, he shall return it, together with his objections against it, to that House in which it shall have originated, who shall enter the objections at large on their Journal, and proceed to reconsider the bill. But, if after such reconsideration, two thirds of that House shall, notwithstanding the objections of the President, agree to pass it, it shall, together with his objections, be sent to the other House, by which it shall likewise be reconsidered, and, if approved by two thirds of the other House also, it shall become a law. But, in all such cases, the votes of both Houses shall be determined by Yeas and Nays; and the names of the persons voting for or against the bill shall be entered in the Journal of each House respectively. If any bill shall not be returned by the President within seven days after it shall have been presented to him, it shall be a law, unless the Legislature, by their adjournment, prevent its return; in which case it shall not be a law. VII _Sect. 1._ The Legislature of the United States shall have the power to lay and collect taxes, duties, imposts and excises; To regulate commerce with foreign nations, and among the several States; To establish an uniform rule of naturalization throughout the United States; To coin money; To regulate the value of foreign coin; To fix the standard of weights and measures; To establish post-offices; To borrow money, and emit bills on the credit of the United States; To appoint a Treasurer by ballot; To constitute tribunals inferior to the supreme court; To make rules concerning captures on land and water; To declare the law and punishment of piracies and felonies committed on the high seas; and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations; To subdue a rebellion in any State, on the application of its Legislature; To make war; To raise armies; To build and equip fleets; To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions; And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the government of the United States, or in any department or officer thereof, _Sect. 2._ Treason against the United States shall consist only in levying war against the United States, or any of them, and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted. _Sect. 3._ The proportions of direct taxation shall be regulated by the whole number of white and other free citizens and inhabitants, of every age, sex and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, (except Indians not paying taxes) which number shall, within six years after the first meeting of the Legislature, and within the term of every ten years afterwards, be taken in such manner as the said Legislature shall direct. _Sect. 4._ No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited. _Sect. 5._ No capitation tax shall be laid, unless in proportion to the census hereinbefore directed to be taken. _Sect. 6._ No navigation act shall be passed without the assent of two thirds of the members present in each House. _Sect. 7._ The United States shall not grant any title of nobility. VIII The acts of the Legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States shall be the supreme law of the several States, and of their citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions; anything in the Constitutions or laws of the several States to the contrary notwithstanding. VIIII _Sect. 1._ The Senate of the United States shall have power to make treaties, and to appoint ambassadors and judges of the supreme court. _Sect. 2._ In all disputes and controversies now subsisting, or that may hereafter subsist between two or more States, respecting jurisdiction or territory, the Senate shall possess the following powers. Whenever the Legislature, or the Executive authority, or the lawful agent of any State, in controversy with another, shall, by memorial to the Senate, state the matter in question, and apply for a hearing; notice of such memorial and application shall be given, by order of the Senate, to the Legislature or the Executive Authority of the other State in controversy. The Senate shall also assign a day for the appearance of the parties, by their agents, before that House. The agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question. But if the agents cannot agree, the Senate shall name three persons out of each of the several States, and from the list of such persons each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as the Senate shall direct, shall, in their presence, be drawn out by lot; and the persons, whose names shall be so drawn, or any five of them shall be commissioners or judges to hear and finally determine the controversy; provided a majority of the judges, who shall hear the cause, agree in the determination. If either party shall neglect to attend at the day assigned, without shewing sufficient reasons for not attending, or, being present, shall refuse to strike, the Senate shall proceed to nominate three persons out of each State, and the clerk of the Senate shall strike in behalf of the party absent or refusing. If any of the parties shall refuse to submit to the authority of such court; or shall not appear to prosecute or defend their claim or cause, the court shall nevertheless proceed to pronounce judgment. The judgment shall be final and conclusive. The proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public records for the security of the parties concerned. Every commissioner shall, before he sit in judgment, take an oath, to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question, according to the best of his judgment, without favour, affection, or hope of reward." _Sect. 3._ All controversies concerning lands claimed under different grants of two or more States whose jurisdictions, as they respect such lands, shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different States. X _Sect. 1._ The Executive Power of the United States shall be vested in a single person. His stile shall be, "The President of the United States of America;" and his title shall be, "His Excellency". He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time. _Sect. 2._ He shall, from time to time, give information to the Legislature, of the State of the Union: he may recommend to their consideration such measures as he shall judge necessary, and expedient: he may convene them on extraordinary occasions. In case of disagreement between the two Houses, with regard to the time of adjournment, he may adjourn them to such time as he shall think proper: he shall take care that the laws of the United States be duly and faithfully executed: he shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution. He shall receive Ambassadors, and may correspond with the Supreme Executives of the several States. He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment. He shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States. He shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during his continuance in office. Before he shall enter on the duties of his department, he shall take the following Oath or Affirmation, "I * * * solemnly swear, (or affirm) that I will faithfully execute the Office of President of the United States of America." He shall be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court, of treason, bribery, or corruption. In case of his removal as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties until another President of the United States be chosen, or until the disability of the President be removed. XI _Sect. 1._ The Judicial Power of the United States shall be vested in one Supreme Court, and in such Inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States. _Sect. 2._ The Judges of the Supreme Court, and of the Inferior courts, shall hold their offices during good behaviour. They shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. _Sect. 3._ The Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States; to all cases affecting Ambassadors, other Public Ministers and Consuls; to the trial of impeachments of Officers of the United States; to all cases of Admiralty and Maritime Jurisdiction; to Contriversies between two or more States (except such as shall regard Territory or Jurisdiction) between a State and citizens of another State, between citizens of different States, and between a State or the citizens thereof and foreign States, citizens or subjects. In cases of Impeachment, cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be a party, this Jurisdiction shall be original. In all the other cases before mentioned it shall be appellate, with such exceptions and under such regulations as the Legislature shall make. The Legislature may assign any part of the jurisdiction above mentioned (except the trial of the President of the United States) in the manner and under the limitations which it shall think proper, to such Inferior Courts as it shall constitute from time to time. _Sect. 4._ The trial of all criminal offences (except in cases of impeachments) shall be in the State where they shall be committed; and shall be by jury. _Sect. 5._ Judgment, in cases of Impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. XII No State shall coin money; nor grant letters of marque and reprisal; nor enter into any treaty, alliance, or confederation; nor grant any title of nobility. XIII No State, without the consent of the Legislature of the United States, shall emit bills of credit, or make anything but specie a tender in payment of debts; lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another State, or with any foreign power; nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent, as not to admit of a delay, until the Legislature of the United States can be consulted. XIIII The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. XV Any person charged with treason, felony, or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive Power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence. XVI Full faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the courts and magistrates of every other State. XVII New States lawfully constituted or established within the limits of the United States, may be admitted, by the Legislature, into this government; but to such admission the consent of two thirds of the Members present in each House shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the Legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States concerning the public debt, which shall be then subsisting. XVIII The United States shall guaranty to each State a Republican form of government; and shall protect each State against foreign invasions, and, on the application of its Legislature, against domestic violence. XVIIII On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose. XX The Members of the Legislatures, and the executive and judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution. XXI The ratification of the Conventions of * * * States shall be sufficient for organizing this Constitution. XXII This Constitution shall be laid before the United States in Congress assembled, for their approbation; and it is the opinion of this Convention, that it should be afterwards submitted to a Convention chosen in each State, under the recommendation of its legislature, in order to receive the ratification of such Convention. XXIII To introduce this government, it is the opinion of this Convention, that each assenting Convention should notify its assent and ratification to the United States in Congress assembled; that Congress, after receiving the assent and ratification of the Conventions of States, should appoint and publish a day, as early as may be, and appoint a place for commencing proceedings under this Constitution; that after such publication, the Legislatures of the several States should elect Members of the Senate, and direct the election of Members of the House of Representatives; and that the Members of the Legislature should meet at the time and place assigned by Congress, and should, as soon as may be, after their meeting, choose the President of the United States, and proceed to execute this Constitution. INDEX Adams, Secretary J. Q. Applies to Pinckney for draught, p. 4, 26 Interview with Rufus King, p. 145 Ambassadors To be appointed by the Senate, p. 82, 102, 210 Article III of Pinckney's Draught Relied upon by Madison, p. 61, 62, 93, 99, 100 Article V of Pinckney's Draught Relied upon by Madison, p. 61, 101 Article VIII of Pinckney's Draught Relied upon by Madison, p. 60, 78, 79, 82, 84, 97 Sustained by the Observations, p. 134 Bancroft, George, Expresses the general judgment, p. 7 Bill of Rights Not adopted by the Committee or the convention, p. 270 But is, in Pinckney's draughts and Observations, p. 270 Bridge which Madison built For Pinckney's friends, p. 6, 7, 21, 44 Butler Pierce of South Carolina Thinks election by the people impracticable, p. 87 Charges of Madison Analysed, p. 58, 62, 63 Chesapeak, the frigate, Surrender of, p. 56 Citizens. The clause securing privileges and immunities, p. 252 City Tavern, Members of the Convention dinner at, p. 239 Committee of Detail Appointed to prepare the Constitution, p. 69, 232 Report of the Committee, p. 69 Names of the Committee, p. 75 Secrecy of the Committee, p. 75, 76 Report exceeds instructions, p. 70 Consistent silences of the Committee until death, p. 200 How the Committee followed Pinckney, p. 213 The printing of the draught, p. 233, 234 Committee of Style Appointed, p. 69 Really Committee of Revision, p. 78 Correction of language, masterly, p. 78 Compensation of Members Adequate, p. 173 Resolution of the Committee of the Whole, p. 173 Report of the committee of detail, p. 174 In the Pinckney and Wilson draughts, p. 175 Deviation from instructions explained, p. 207, 209 Compensation of the President. Committee's draught disregards the 12th Resolution, p. 209 Follows Pinckney's draught, p. 210 Compromises, The, of the Constitution. Neither Madison nor Pinckney attempted a compromise, p. 265 Conclusions. Final conclusions on the whole case, p. 273 Confederated States. Bankrupt and drifting towards war, p. 249 Helpless as against the States, p. 251 Dependent upon voluntary contributions, p. 265 Could not enforce treaties on States, p. 265 Congress. See Election and Eligibility. Constitution, The. Its four germinal stages, p. 66 Methods for consideration of, p. 67, 68 Birth of, p. 71 References to Committees, p. 69, 70, 78 The work of the Committee of Style, p. 78 Estimate of in 1818, p. 25, 27 Convention, The. Surviving members of, p. 24, 202 Philosophical methods of, p. 67 First days of the, p. 128, 129, 130 The first business day, p. 135 The secrecy of the convention, p. 227, 229, 232, 237 A lost paper, p. 230 Its careful preservation of papers, p. 287 Copyright and Patents. Not in the Department copy of the draught, p. 271 But Pinckney the author of those constitutional provisions, p. 271 Copyright cases, p. 206 Council of Revision. Considered, p. 46, 47, 50, 51 Pinckney's action regarding it, p. 50 Delicate. The word as used by Madison, p. 36 Draught of Committee of Detail. Reported by committee, p. 70 Description of, p. 71, 72, 234 Washington's copy of, p. 74 The notes by Major Jackson, p. 74 Agreement with Pinckney's draught, p. 79, 81, 255, 273 The "divide" in the march of the framers, p. 76 The compromises subsequent to the draught, p. 77 Sparks' analysis of it, p. 149 Sparks' test, p. 153, 156 Madison's non-reply to Sparks, p. 155, 156 The misplacing of veto power, p. 183, 220 The treason provisions, p. 185, 221 The Supreme Court jurisdiction clause, p. 191 The draught not yet written, p. 203 The preamble taken from Pinckney, p. 214 How the committee followed Pinckney, p. 215 The committee overrule Wilson, p. 222 Limit of time for preparing, p. 232, 235, 248 Engrossed on Pinckney's as copy for printer, p. 236, 241 "Delivered in" figuratively, p. 236 The most important document of the convention, p. 226 Printing of the draught, p. 233 The real authors of the draught, p. 165 Draught of Pinckney Presented to the convention, p. 429 Lost, p. 4, 224 The Department copy, p. 4 Description of, p. 16 Madison's Note to the, p. 58 When written, p. 86 The term, "The law of the land," p. 179 Provisions described in the Observations, p. 182 The misplacing of the veto power, p. 183, 220 The militia, p. 188 Randolph recognizes and uses, Art 11, p. 196 Article 11 described in the Observations, p. 198 Publicity attending Pinckney's draught, p. 201, 274 Used as printers' copy and destroyed, p. 236 Never discussed in convention, p. 257 Exaggerated value set upon it, p. 258 Provisions not adopted by the committee, p. 268 Provisions not in the Department case, p. 271 Provisions rejected, p. 263 Its inferiority in detail to the committee's, p. 153 Draught of Randolph. Description of, p. 161 The annotations of Rutledge, p. 164 Compensation of Senators, p. 163 The joint work of Randolph and Rutledge, p. 165 A disheveled draught, p. 190 Jurisdiction of the Supreme Court in, p. 191 Recognizes and uses Pinckney's Art. 11, p. 196 Draughts of Wilson. His three draughts, p. 160 Description of his 3d, p. 161 The annotations of Rutledge, p. 161 Wilson's preamble, p. 166, Charges against Pinckney, p. 168 The word "our," p. 169, 171 Articles which are not Wilson's, p. 182 The proper placing of the veto power, p. 183, 220 The treason provisions, p. 185, 221 The militia provisions, p. 188 Draught, rough. What it is, p. 20 Pinckney's not a rough draught, p. 10, 11 Wilson's rough draught, p. 166 Duer, William A. Madison's letter to, p. 36, 45 His position in New York, p. 45 Election of Representatives By the people, p. 9, 85, 91, 93, 94, 95, 97 Pinckney's change of mind, p. 85, 87, 94, 96 Agreement of Articles III and V with Observations, p. 90, 93 Vote of convention, p. 95 Election of the President. Madison's strictures on the draught, p. 60 Article VIII does not provide a method, p. 97 The omission not remarkable, p. 98 Choosing by the electoral colleges, p. 77, 133 Observations sustain Article VIII, p. 134 Eligibility of Representatives, etc. Pinckney on the question, p. 101, 103 Elliott, W. S. A grandnephew of Pinckney, p. 288 His sketch of Pinckney's life and home; of his library, picture gallery and garden, p. 288 Ellsworth, Oliver Did not draught a constitution, p. 165 Contributed nothing to draught of the committee, p. 165 Estoppel. Characterized by Coke, p. 132 Does not extend to historical students, p. 132 Federalists. Hamilton and Pinckney were, p. 279 Pinckney the most extreme federalist in the convention, p. 279 Ford, Worthington C. Publishes Pinckney's letter, p. 5 Framers of the Constitution. Two of the youngest and their work, p. 264 Franklin, Doctor. His farewell words to the convention, p. 70 Fraud and Plagiarism. The question of inexorable, p. 21 Detection probable, p. 24 Temptation small, p. 25 The absence of motive, p. 27, 28 Specifications of plagiarisms, p. 78 Failure of specified charges, p. 79 Not sustained by evidence, p. 275 The charge reduced to an absurdity, p. 195 Gerry of Massachusetts Opposes election by the people, p. 87 Gilpin, Henry D. Edits Madison's Journal, p. 5, 29 Gorham of Massachusetts. A member of the committee of detail, p. 75 Did not attempt to draught a constitution, p. 165 Grimke, Thomas S. Madison's letter to, p. 35 Habeas Corpus. The writ of, not to be suspended is in the draught, p. 269 Why the committee did not adopt, p. 270 Hamilton, Alexander. "Those who pay are the masters," p. 174 His not the style of the Constitution, p. 243 Pierce's description of Hamilton, p. 283 Historical Questions. Concerning the draught in the State Department, p. 12 Historical Society of N. Y. Possesses Pinckney's Observations, p. 105 Referred to by Madison, p. 110 Hunt, Gaillard. Description of the draught, p. 18 Immigration. Expected and relied upon, p. 170 Massachusetts constitution encourages, p. 169 Impeachment. In Pinckney draught, p. 211 In the committee draught, p. 211 Jackson, Major Wm. Elected secretary of the convention, p. 129 His notes on draught, p. 74, 75 His letter to Washington, p. 239 Delivers papers of the convention to Washington, p. 239, 241 Jameson, Professor, J. Franklin. He discovers two of the Wilson draughts, p. 159, 160 Jay, Chief Justice. His hand appears in the constitution of New York, p. 243 Jefferson, President. Madison's letter to, p. 33, 129 Jews. "The people called Jews" address the convention, p. 241 Journal, The, of Madison. Its completeness, p. 40 Omission of Pinckney's draught, p. 40 Publication of, p. 52, 63 His best appreciated work, p. 40 To be edited by Mrs. Madison, p. 63 Edited by Henry D. Gilpin, p. 5, 29 Madison method of writing, p. 122 Is the journal evidence against Pinckney, p. 275 It must be received as history, p. 277 King, Rufus. Mr. Adams' conversation with King, p. 145 King considered as a witness, p. 146 Pierce's description of King, p. 282 Knox, General Henry. Washington's letter to him, p. 128 Law of the Land. See Supreme Law of the Land. Library company of Philadelphia. Order to the librarian directing him to "furnish the gentlemen" of the convention with books, p. 240 McLaughlin, Professor, Discovers a draught of Wilson, p. 158 Discovers report in confederated congress, August, 1786, "written in Pinckney's own hand," p. 260 Madison, President. His troubled life, p. 54 His failing memory, p. 52, 54, 81 His only alternative, p. 38 His age, p. 53, 54 His failure to testify, p. 38 His ignorance of the draught, p. 30, 38, 40, 53 His "Note" to the "Plan," p. 58 His "editorial footnote" to the "Note," p. 62, 63 His charges against the draught, p. 63 His objections to Pinckney's draught, p. 5, 6, 7, 43, 45, 46 His poor opinion of Pinckney, p. 32, 53 Most diligent member of convention, p. 80 His letters, p. 33, 34, 35, 36, 42, 43, 45, 54, 63, 107, 108, 109, 110, 129, 214 His comparison of the draught with the Constitution, p. 143, 156, 157 His silence on the primary issue, p. 156 His adroit management, p. 43, 157 Madison on the "object of the Union," p. 214 His and Pinckney's the constructive minds of the convention, p. 264 They agreed as to State legislation, p. 265, 267 They did not attempt to frame a compromise, p. 266 The work of one agrees with the work of the other, p. 267 Their names should be closely associated, p. 268 Madison's Journal. See Journal. Mrs. Madison Her rescue of Washington's portrait, p. 56 Intended editor of the Journal, p. 63 Marshall, Chief Justice. Moulded the Constitution, p. 27 His majestic judicial reign, p. 37 Martin Luther. His resolution relating to the "Supreme law of the respective States," p. 179 His language a compromise, p. 181 Massachusetts Constitution furnishes provisions for Pinckney's draught, p. 83, 84, 250 Massachusetts and New York alone paid in full their quota, p. 249 Preamble of the Constitution derived from constitution of Massachusetts, p. 169 The word "posterity" unrestricted, p. 170 Meigs, William M. His "Growth of the Constitution," p. 161 Reproduces the Randolph draught in facsimile, p. 161 Growth of the Constitution cited and quoted, p. 189, 192 Militia, The. Pinckney's draught a radical departure, p. 188 Not authorized by the convention, p. 188 Pinckney's draught followed by Wilson rejected by the committee, p. 189 Money Bills. Madison refers to them, p. 99 Pinckney's position regarding them, p. 100 Morris, Gouverneur. His correction of the language of the Constitution, p. 78 Mystery. The name, p. 1 Its definition, p. 2 New York, the Constitution of, Furnishes the veto power, p. 47, 48 Furnishes other provisions, p. 83, 84, 216, 218, 250 New York and Massachusetts alone pay in full their quota, p. 249 Notes and Memoranda Of Pinckney and Madison, p. 11 "Note" of Madison to plan of Pinckney, p. 58 Editorial footnote to same, p. 62, 63 Observations, The Pamphlet. Cited by Madison, p. 33, 34, 43, 46, 50, 62 Cited by Pinckney, p. 90 When written, p. 93, 130 Description of, p. 105 Madison interest in, p. 107 Extracts from, p. 111 The Observations, a speech never made, p. 122, 126, 139 Madison and Yates evidence, p. 122 Contradictions in it, p. 126 Significant error in date, p. 127 Considered as a speech, p. 131 Considered as evidence, p. 132 Confirm Articles III, V, VIII, p. 132, 135 Explanation of Pinckney's publication, p. 135 Why speech was not delivered, p. 137 Why published, p. 138 Why Observations were not cited in Madison's "Note," p. 140 The Observations fateful, p. 141 They sustain the copy in the State department, p. 139 Articles in the draught described in the Observations cannot be questioned, p. 182, 189, 198, 253, 269, 270 Article 11 referred to by Randolph described in the Observations, p. 198 Patents. See Copyright. Paulding, James Kirke. Memorandum for, p. 34, 42, 107 Letters to, p. 43, 108 Friend of Madison, p. 44, 45 Phenomenon, The, of Madison, p. 46, 53, 80 Pinckney, Charles. His official life, p. 23 His age, p. 88 Why he presented the Observations, p. 135 His strategic purpose, p. 137 Why he published the Observations, p. 138, 142 Desired the supremacy of the national government, p. 181, 279 He alone formulated a constitution before the convention met, p. 189 His misplacement of the veto power, p. 183 The style of the Constitution, p. 243, 245 His draught the only one, p. 249 His method of construction, p. 250 His composite work, p. 250, 251, 252 His generality of treatment and expression, p. 253 A condemned and misrepresented man, p. 254 His training and preparation, p. 261, 264 What he did and failed to o, p. 261 His co-operation with Madison, p. 264, 265, 267 His family, position, etc., p. 278 His speech of June 25, p. 278 The extremist federalist in the convention, p. 279 Pierce's description and estimate of him, p. 281, 284 The destruction of everything which Pinckney possessed, p. 285 Pinckney, Charles Cotesworth, Opposes election by the people, p. 88 Proposes that no salary be allowed to Senators, p. 176 Living in 1818, p. 24 The most esteemed citizen in S. C., p. 88 Pinckney's Letters To Secretary of State, p. 8, 12, 26, 27 Contemporary declaration, p. 10 Letter to Madison, p. 62 Pierce, William. His narrative of a lost paper in the convention, p. 230 His description of Randolph, King, Hamilton and Pinckney, p. 281 Preamble of the Constitution. Suggested by the Articles of Confederation, p. 169. Derived from Constitution of Massachusetts, p. 169 Randolph attempted draught of preamble, p. 162 Wilson attempted draught of preamble, p. 166 The preamble in the committee's draught, p. 168 It declared the source and supremacy of authority, p. 213 Ignored State governments, p. 213 The preamble unquestioned in the convention, p. 215 President, The. See Election of. Printers--Copy. Pinckney draught used as printers' copy. p. 188, 208, 237 Randolph, Edmund. The Virginia resolutions cited as his, p. 68 Opens the main business of the convention, p. 130, 136 His draught of the Constitution, p. 158, 161 Read, George. Letter to Dickinson on Pinckney's draught, p. 89 Ritchie, Thomas. Madison's letter to, p. 63 Rutledge, John. Present in the convention, May 29, p. 135 Seconds Pinckney motion to strike out the word people and insert Legislatures, p. 95 Chairman of the Committee of Detail, p. 75 "Delivers in" the report of the committee, p. 70 His annotations on the other draughts, p. 162, 164, 182 He co-operates with Wilson and Randolph, p. 164 Used Pinckney draught when annotating, p. 182 His ruthless slashing of Wilson's, p. 161 His 43 amendments, p. 161, 204 Strongest man in the State, p. 88 Secrecy. The resolution of the convention, p. 228 Secrecy to continue after the dissolution of the convention, p. 228 Silence of members from May 29 to September 17, p. 229 Washington recognition of the obligation, p. 229 The obligation required that the draught be not lost, p. 232 Pinckney draught used as printers' copy and scrupulously destroyed, p. 237 Legal presumption that it was destroyed, p. 237 Secrecy of Committee of Detail, p. 75, 200, 237 Senate. Pinckney's Senate, p. 91, 217 To appoint ambassadors and judges, p. 102 South Carolina. The State postpones action in the convention, p. 175 South Carolina Gazette. Draught republished in, p. 274 Sparks, Jared. Writes to Madison, p. 42, 43, 144, 146, 147, 149 Madison to Sparks, p. 35, 42, 43, 110 His opinion of the draught, 148, 152 His correct analysis, p. 152 His most delicate test, p. 153 Story, Mr. Justice. Ignores the Draught, p. 6, 8, 12 "Supreme Law of the Land." History of the term. p. 179. The case of Trevatt v. Weeden gives judicial significance to it, p. 182 Derived from resolution of Congress, p. 251 Thomson, Doctor William H. Definition of mystery, p. 2 Time. The second condition imposed on the committee, p. 232 Two of these days were Sundays, p. 233 Three days required for printing, p. 234 200 constitutional provisions framed and printed within the limited time, p. 234 Treason. The punishment of treason, p. 185 How defined, etc., in the three draughts, p. 186 Caution of Rutledge and Pinckney, p. 186 Their provisions combined in the Constitution, p. 187 The Treaty Making Power. Lodged in the Senate exclusively, p. 210 Not authorized by the convention, p. 211 Committee of detail followed Pinckney erroneously, p. 211 Veto Power, The. Taken from the constitution of New York, p. 47 Misplaced by Pinckney and by the committee, p. 183, 220 Correctly placed by Wilson, p. 183 Washington, General, The. Madison's letters to, p. 33, 34 His copy of the committee's draught, p. 74 Letter to Congress, p. 54 His illness, and the illness of his mother, p. 128 His journey to Fredericksburg, p. 128 His arrival in Philadelphia, p. 129 President of the convention, p. 129 Letter to General Knox, p. 128 Made custodian of the records, p. 228, 239 His sense of the obligation of secrecy, p. 229 Extracts from his diary, p. 229 His admonition to the convention, p. 230 The convention's daily mark of respect, p. 230 Extracts from his diary of September 17, p. 239 Washington, City. Capture of, 56 Burning of the Capitol, p. 56 Wilson, James. His draughts of the Constitution, p. 158 Intelligent and wise, p. 159 Opposed the payment of representatives by the States, p. 175, 176 His proper treatment of the veto power, p. 183 His careful and logical work, p. 165, 187 Alien member of the convention, p. 199 A judge of the Supreme Court, p. 200 The hard-worker of the convention, p. 204 A signer of the Declaration, p. 171 He first suggests the Electoral Colleges, p. 77 Yates, Robert. Entry in his minutes, p. 29, 122 Report of Pinckney's speech, p. 30 His age, position and experience, p. 124 Value of his minutes, p. 125 
28067	----	The Spirit of American Government _A STUDY OF THE CONSTITUTION: ITS ORIGIN, INFLUENCE AND RELATION TO DEMOCRACY_ BY J. ALLEN SMITH, LL.B., PH.D. PROFESSOR OF POLITICAL SCIENCE UNIVERSITY OF WASHINGTON [Illustration] The Chautauqua Press CHAUTAUQUA, NEW YORK MCMXI COPYRIGHT, 1907, BY THE MACMILLAN COMPANY Set up and electrotyped. Printed April, 1907. Reprinted March, 1911. Norwood Press: Berwick & Smith Co., Norwood, Mass., U.S.A. PREFACE It is the purpose of this volume to trace the influence of our constitutional system upon the political conditions which exist in this country to-day. This phase of our political problems has not received adequate recognition at the hands of writers on American politics. Very often indeed it has been entirely ignored, although in the short period which has elapsed since our Constitution was framed and adopted, the Western world has passed through a political as well as an industrial revolution. In the eighteenth century the majority was outside of the pale of political rights. Government as a matter of course was the expression of the will of a minority. Even in the United States, where hereditary rule was overthrown by the Revolution, an effective and recognized minority control still survived through the property qualifications for the suffrage and for office-holding, which excluded a large proportion of the people from participation in political affairs. Under such conditions there could be but little of what is now known as democracy. Moreover, slavery continued to exist upon a large scale for nearly three-quarters of a century after the Constitution was adopted, and was finally abolished only within the memory of many now living. It could hardly be expected that a political system set up for a community containing a large slave population and in which the suffrage was restricted, even among the free whites, should in any large measure embody the aims and ideas of present day democracy. In fact the American Constitution did not recognize the now more or less generally accepted principle of majority rule even as applying to the qualified voters. Moreover, it was not until several decades after the Constitution was adopted that the removal of property qualifications for voting allowed the people generally to have a voice in political affairs. The extension of the suffrage was a concession to the growing belief in democracy, but it failed to give the masses an effective control over the general government, owing to the checks in the Constitution on majority rule. It had one important consequence, however, which should not be overlooked. Possession of the suffrage by the people generally led the undiscriminating to think that it made the opinion of the majority a controlling factor in national politics. Our political writers have for the most part passed lightly over the undemocratic features of the Constitution and left the uncritical reader with the impression that universal suffrage under our system of government ensures the rule of the majority. It is this conservative approval of the Constitution under the guise of sympathy with majority rule, which has perhaps more than any thing else misled the people as to the real spirit and purpose of that instrument. It was by constantly representing it as the indispensable means of attaining the ends of democracy, that it came to be so generally regarded as the source of all that is democratic in our system of government. It is to call attention to the spirit of the Constitution, its inherent opposition to democracy, the obstacles which it has placed in the way of majority rule, that this volume has been written. The general recognition of the true character of the Constitution is necessary before we can fully understand the nature and origin of our political evils. It would also do much to strengthen and advance the cause of popular government by bringing us to a realization of the fact that the so-called evils of democracy are very largely the natural results of those constitutional checks on popular rule which we have inherited from the political system of the eighteenth century. The author acknowledges his indebtedness to his colleague, Professor William Savery, and to Professor Edward A. Ross of the University of Wisconsin, for many pertinent criticisms and suggestions which he has borne in mind while revising the manuscript of this work for publication. He is also under obligation to Mr. Edward McMahon for suggestions and for some illustrative material which he has made use of in this volume. J. ALLEN SMITH. Seattle, Washington, January, 1907. CONTENTS CHAPTER I THE ENGLISH GOVERNMENT OF THE EIGHTEENTH CENTURY PAGE Struggle between the many and the few 3 The Great Charter 4 Development of a bicameral parliament 6 Limited and irresponsible government 8 Class influence as seen in statute and common law 10 CHAPTER II THE AMERICAN GOVERNMENT OF THE REVOLUTIONARY PERIOD Conditions favoring growth of democratic ideas 12 The Declaration of Independence 13 Numerical strength and character of the conservatives 14 Democracy in the early state constitutions 16 Supremacy of the legislature 20 The Articles of Confederation 22 CHAPTER III THE CONSTITUTION A REACTIONARY DOCUMENT Causes of political reaction 27 The Constitution a product of eighteenth-century thought 28 The framers' fear of democracy 29 Effort to limit the power of the majority 35 CHAPTER IV THE SIGNIFICANCE OF THE AMENDMENT FEATURE OF THE CONSTITUTION Amendment of democratic and undemocratic constitutions 40 Reasons for making amendment difficult 41 Patrick Henry's objection to the amendment feature of the Constitution 44 The amendments to the Constitution 52 Amendment of the Articles of Confederation 57 Amendment of the early state constitutions 58 Amendment in other countries 62 CHAPTER V THE FEDERAL JUDICIARY Relation of the judicial to the other checks 65 The constitutional status of judges in England 67 The American was not a copy of the English judicial system 68 Hamilton's defense of the Federal judiciary 73 His desire to limit the power of the people 82 Relation of the judicial to the executive veto 85 Revival of the judicial veto in the state governments 87 The judicial veto was not mentioned in the Constitution 90 The Federalist appointments to the Supreme Bench 94 Significance of the veto power of the Supreme Court 97 A monarchical survival 103 Political and judicial powers 107 Power to veto laws not judicial 108 Character of the laws vetoed by the Supreme Court 111 Decline of the belief in judicial infallibility 113 Government by injunction 116 The judicial veto in relation to treaties 119 The disadvantages of a deferred veto 123 CHAPTER VI THE CHECKS AND BALANCES OF THE CONSTITUTION A cure for the evils of democracy 125 Evolutionary classification of governments 128 Substitutes for king and aristocracy 130 Relation of the theory of checks and balances to _laissez faire_ and anarchism 131 Purpose of indirect election 134 Subordination of the House of Representatives 137 Impeachment made difficult 142 Significance of the President's oath of office 146 The House of Representatives in relation to the budget 148 Lack of adequate provision for publicity 150 Attitude of the framers toward criticism of public officials 152 Federal versus national government 160 Relation of the general to the state governments not clearly defined 162 Effort to lay the foundation of a national government 164 Origin and development of the doctrine of nullification 168 Calhoun's theory of the Constitution 174 The judiciary act of 1789 182 CHAPTER VII UNDEMOCRATIC DEVELOPMENT The influence of checks upon the development of our political institutions 186 The House of Representatives an irresponsible body during the second regular session 189 Congress has power to remedy the evil 191 The committee system a check on the majority 193 The speaker's power to thwart legislation 199 The system encourages log-rolling 200 CHAPTER VIII THE PARTY SYSTEM Conservative opposition to party government in the eighteenth century 203 The effort of the framers to guard against the possibility of responsible party government 205 Difference between the English and the American party system 208 Influence of the Constitution upon the party system not generally recognized 210 The evils of our party system attributed by conservative writers to majority rule 212 Character of our party platforms 218 True party government impossible under our constitutional system 226 CHAPTER IX CHANGES IN THE STATE CONSTITUTIONS AFTER 1787 Development of the judicial veto 230 Limitation of the power to impeach 231 Extension of the term of office of governor and members of the legislature 232 Amendment of the constitution made more difficult 235 Influence of democracy upon the state constitutions 239 Division of authority in the state government 243 Lack of effective responsibility 245 CHAPTER X MUNICIPAL GOVERNMENT Municipal government at the time of the Revolution 249 Changes in municipal government after the adoption of the Constitution 250 The municipality a creature of the state legislature 252 Hostility of the courts to municipal self-government 254 The attitude of the courts made state interference necessary 255 Abuses of legislative interference 256 Constitutional provisions limiting the power of the legislature to interfere 261 Effort to establish municipal self-government 265 Limitation of the power of the majority in constitutions granting municipal self-government 266 The object of home rule provisions largely defeated by judicial interpretation 268 Limitation of the taxing and borrowing power of home rule cities 272 Origin of the constitutional limitations of municipal indebtedness 273 Fear of municipal democracy 277 Municipal ownership as a means of taxing the propertyless class 280 Why our state governments have not been favorable to municipal democracy 285 Limitation of the power of the majority the main cause of municipal corruption 288 CHAPTER XI INDIVIDUAL LIBERTY AND THE CONSTITUTION The eighteenth-century conception of liberty negative 291 Influence of the Revolution upon the conception of liberty 293 Why present-day conservatives advocate the eighteenth century view of liberty 295 Liberty to the framers meant the limitation of the power of the majority 297 The doctrine of vested rights 299 Survival of the old view of liberty in our legal literature 301 CHAPTER XII INDIVIDUAL LIBERTY AND THE ECONOMIC SYSTEM The economic conditions under which the old view of liberty originated 304 Influence of the industrial revolution upon the liberty of the worker 306 The _laissez faire_ policy 308 Protection has been maintained as a class policy 312 The need of protection to labor 316 Limitation of governmental powers in the interest of the capitalist 318 The policy of the Supreme Court a factor in corrupting the state governments 325 CHAPTER XIII THE INFLUENCE OF DEMOCRACY UPON THE CONSTITUTION Modification of the system as originally set up 331 The extension of the suffrage 333 Defect in the method of electing the President 333 Three reforms needed in the case of the Senate 338 Possibility of controlling the Supreme Court 341 Power of two-thirds of the states to call a constitutional convention 346 Effort to secure the responsibility of public officials 349 Direct versus representative democracy 351 Reliance of the conservative classes on the courts 355 Election of United States senators by the legislature incompatible with its other functions 357 CHAPTER XIV EFFECT OF THE TRANSITION FROM MINORITY TO MAJORITY RULE UPON MORALITY Higher standards of morality 361 The growth of publicity in relation to immorality 363 Decline in the efficacy of old restraints 364 The conflict between two opposing political systems 367 The need of more publicity 372 Corporate control of the organs of public opinion 375 Lack of respect for law 377 CHAPTER XV DEMOCRACY OF THE FUTURE The progress of democratic thought 379 Influence of printing upon the growth of democracy 380 The immediate aim of democracy political 383 Relation of scientific and industrial progress to democracy 384 Democracy would make government a science 386 Dependence of man's industrial activities on the social environment 388 Necessity for equality of opportunity ignored by conservative writers 390 The scientific justification of democracy's hostility to privilege 394 Democracy's attitude toward the doctrine of _laissez faire_ 397 THE SPIRIT OF AMERICAN GOVERNMENT CHAPTER I THE ENGLISH GOVERNMENT OF THE EIGHTEENTH CENTURY Constitutional government is not necessarily democratic. Usually it is a compromise in which monarchical and aristocratic features are retained. The proportion in which the old and the new are blended depends, of course, upon the progress the democratic movement has made. Every step toward democracy has been stubbornly opposed by the few, who have yielded to the popular demand, from time to time, only what necessity required. The constitution of the present day is the outcome of this long-continued and incessant struggle. It reflects in its form and character the existing distribution of political power within the state. If we go back far enough we find government nearly everywhere in the hands of a King and privileged class. In its earlier stages the constitutional struggle was between monarchy and aristocracy, the King seeking to make his authority supreme and the nobility seeking to limit and circumscribe it. Accordingly, government oscillated between monarchy and aristocracy, a strong and ambitious King getting the reins of government largely in his own hands, while the aristocracy encroached upon the power and prerogatives of a weak and incompetent one. Thus democracy played no part in the earlier constitutional struggles. The all-important question was whether the King or the nobility should control the state. Civil wars were waged to decide it, and government gravitated toward monarchy or aristocracy according as the monarchical or aristocratic party prevailed. Under William the Conqueror and his immediate successors the government of England was practically an absolute monarchy. Only the highest class was consulted in the Great Council and the advice of these the King was not obliged to follow. Later, as a result of the memorable controversy between King John and his feudal barons, the Great Council regained the power which it had lost. Against the King were arrayed the nobility, the church as represented by its official hierarchy, and the freemen of the realm, all together constituting but a small minority of the English people. The Great Charter extorted from the King on this occasion, though frequently referred to as the foundation of English liberty, was in reality a matter of but little immediate importance to the common people. The benefit of its provisions, while not limited to the nobility, extended, however, only to those classes without whose aid and support the tyrannical power of the King could not be successfully opposed. The church, by reason of the great wealth which it controlled and the powerful influence which it exerted in a superstitious age over the minds of the people, was a factor that could not be ignored. The freemen also played an important part in the constitutional struggles, since they carried the sword and formed the rank and file of the fighting class. The important provisions of the Great Charter relate exclusively to the rights of the church, the nobility and the freemen. The serfs, while not included within the benefit of its provisions, were an overwhelming majority of the English people. This conclusion is irresistible in view of the fact that the Domesday Survey shows that about four-fifths of the adult male population in the year 1085 were below the rank of freemen.[1] The Great Charter was, it is true, an important step in the direction of constitutional government, but it contained no element of democracy. It merely converted the government from one in which monarchy was the predominant feature, to one in which the aristocratic element was equally important. The classes represented in the Great Council became a constitutional check on the power of the King, inasmuch as he could not levy taxes without their consent. The important constitutional position which this charter assigned to the nobility was not maintained, however, without repeated struggles under succeeding Kings; but it laid the foundation for the subsequent development which limited and finally abolished the power of the monarch. In the course of time the Great Council split up into two separate bodies, the House of Lords, composed of the greater nobility and the higher dignitaries of the church, and the House of Commons, representing all other classes who enjoyed political rights. When the House of Commons thus assumed a definite and permanent form as a separate body, a new check upon the power of the King appeared. The consent of two separate bodies was now necessary before taxes could be imposed. The development of these checks was hastened by the fact that the King found it easier and safer to get the assent of these bodies to measures which involved an exercise of the taxing power, than to attempt the collection of taxes without their support. In this way the right of assenting to all measures of taxation came in time to be recognized as belonging to the two houses of Parliament. But this was a right not easily established. It was claimed and fought for a long time before it finally became a firmly established principle of the English Constitution. Around the question of taxation centered all the earlier constitutional struggles. The power to tax was the one royal prerogative which was first limited. In time Parliament extended its powers and succeeded in making its assent necessary to all governmental acts which vitally affected the welfare of the nation, whether they involved an exercise of the taxing power or not. The law-making power, however, as we understand it now was seldom employed, the idea of social readjustment through general legislation being a recent growth. But as revenues were necessary, the taxing power was the one legislative function that was constantly exercised. It is not strange then that the earlier constitutional development should have turned mainly upon the relation of the various political classes to the exercise of this power. That English constitutional development resulted in a parliament composed of two houses may be regarded as accidental. Instead of this double check upon the King there might conceivably have been more than two, or there might, as originally was the case, have been only one. Two distinct elements, the secular nobility and the dignitaries of the church, combined to form the House of Lords. The House of Commons was also made up of two distinct constituencies, one urban and the other rural. If each of these classes had deliberated apart and acquired the right to assent to legislation as a separate body, a four-chambered parliament, such as existed in Sweden up to 1866 and still survives in Finland, would have been the result.[2] The essential fact, everywhere to be observed in the development of constitutional government, is the rise to political power of classes which compete with the King and with each other for the control of the state. The monopoly of political power enjoyed by the King was broken down in England when the nobility compelled the signing of Magna Charta. This change in the English Constitution involved the placing of a check upon the King in the interest of the aristocracy. Later, with the development of the House of Commons as a separate institution, the power of the King was still further limited, this time in the interest of what we may call the commercial and industrial aristocracy. At this stage of its development the English government contained a system of checks and balances. The King still retained legislative power, but could not use it without the consent of both Lords and Commons. Each branch of the government possessed the means of defending itself, since it had what was in effect an absolute veto on legislation. This is a stage in political evolution through which governments naturally pass. It is a form of political organization intermediate between monarchy and democracy, and results from the effort to check and restrain, without destroying, the power of the King. When this system of checks was fully developed the King, Lords and Commons were three coordinate branches of the English government. As the concurrence of all three was necessary to enact laws, each of these could defeat legislation desired by the other two. The development of this system of checks limited the irresponsible power of the King only on its positive side. The negative power of absolute veto the King still retained. While he could not enact laws without the consent of the other two coordinate branches of the government, he still had the power to prevent legislation. The same was true of the Lords and Commons. As each branch of government had the power to block reform, the system was one which made legislation difficult. The system of checks and balances must not be confused with democracy; it is opposed to and can not be reconciled with the theory of popular government. While involving a denial of the right of the King or of any class to a free hand in political matters, it at the same time denies the right of the masses to direct the policy of the state This would be the case even if one branch of the government had the broadest possible basis. If the House of Commons had been a truly popular body in the eighteenth century, that fact would not of itself have made the English government as a whole popular in form. While it would have constituted a popular check on the King and the House of Lords, it would have been powerless to express the popular will in legislation. The House of Commons was not, however, a popular body in the eighteenth century. In theory, of course, as a part of Parliament it represented the whole English people. But this was a mere political fiction, since by reason of the narrowly limited suffrage, a large part of the English people had no voice in parliamentary elections. Probably not one-fifth of the adult male population was entitled to vote for members of Parliament. As the right to vote was an incident of land ownership, the House of Commons was largely representative of the same interests that controlled the House of Lords. That the House of Commons was not democratic in spirit is clearly seen in the character of parliamentary legislation. The laws enacted during this period were distinctly undemocratic. While the interests of the land-holding aristocracy were carefully guarded, the well-being of the laboring population received scant consideration. The poor laws, the enclosure acts and the corn laws, which had in view the prosperity of the landlord, and the laws against combination, which sought to advance the interests of the capitalist at the expense of the laborer, show the spirit of the English government prior to the parliamentary reform of 1832. The landlord and capitalist classes controlled the government and, as Professor Rogers observes, their aim was to increase rents and profits by grinding the English workman down to the lowest pittance. "I contend," he says, "that from 1563 to 1824, a conspiracy, concocted by the law and carried out by parties interested in its success, was entered into, to cheat the English workman of his wages, to tie him to the soil, to deprive him of hope, and to degrade him into irremediable poverty."[3] But it is not in statute law alone that this tendency is seen. English common law shows the same bias in favor of the classes which then controlled the state. There is no mistaking the influences which left their impress upon the development of English law at the hands of the courts. The effect of wealth and political privilege is seen here as well as in statutory enactment. Granting all that can justly be said in behalf of the wisdom and reasonableness of the common law, the fact nevertheless remains, that its development by the courts has been influenced by an evident disposition to favor the possessing as against the non-possessing classes. Both the common and the statute law of England reflected in the eighteenth century the political supremacy of the well-to-do minority. CHAPTER II THE AMERICAN GOVERNMENT OF THE REVOLUTIONARY PERIOD The American colonists inherited the common law and the political institutions of the mother country. The British form of government, with its King, Lords and Commons and its checks upon the people, they accepted as a matter of course. In their political thinking they were not consciously more democratic than their kinsmen across the Atlantic. Many of them, it is true, had left England to escape what they regarded as tyranny and oppression. But to the _form_ of the English government as such they had no objection. The evils which they experienced were attributed solely to the selfish spirit in which the government was administered. The conditions, however, were more favorable for the development of a democratic spirit here than in the mother country. The immigrants to America represented the more active, enterprising and dissatisfied elements of the English people. Moreover, there was no hereditary aristocratic class in the colonies and less inequality in the distribution of wealth. This approach to industrial and social equality prepared the mind for the ideas of political equality which needed only the stimulus of a favorable opportunity to ensure their speedy development. This opportunity came with the outbreak of the American Revolution which at the outset was merely an organized and armed protest against what the colonies regarded as an arbitrary and unconstitutional exercise of the taxing power. As there was no widespread or general dissatisfaction with the _form_ of the English government, there is scarcely room for doubt that if England had shown a more prudent and conciliatory spirit toward the colonies, the American Revolution would have been averted. No sooner, however, had the controversy with the mother country reached the acute revolutionary stage, than the forces which had been silently and unconsciously working toward democracy, found an opportunity for political expression. The spirit of resistance to what was regarded as unconstitutional taxation rapidly assumed the form of avowed opposition to the English Constitution itself. The people were ready for a larger measure of political democracy than the English Constitution of the eighteenth century permitted. To this new and popular view of government the Declaration of Independence gave expression. It contained an emphatic, formal and solemn disavowal of the political theory embodied in the English Constitution; affirmed that "all men are created equal;" that governments derive "their just powers from the consent of the governed;" and declared the right of the people to alter or to abolish the form of the government "and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." This was a complete and sweeping repudiation of the English political system, which recognized the right of monarchy and aristocracy to thwart the will of the people. To what extent the Declaration of Independence voiced the general sentiment of the colonies is largely a matter of conjecture. It is probable, however, that its specification of grievances and its vigorous arraignment of the colonial policy of the English government appealed to many who had little sympathy with its express and implied advocacy of democracy. It is doubtless true that many were carried along with the revolutionary movement who by temperament and education were strongly attached to English political traditions. It is safe to conclude that a large proportion of those who desired to see American independence established did not believe in thoroughgoing political democracy. Besides those who desired independence without being in sympathy with the political views expressed in the Declaration of Independence, there were many others who were opposed to the whole Revolutionary movement. The numerical strength of the Tories can not be accurately estimated; but it is certain that a large proportion, probably not less than one-third of the total population of the colonies, did not approve of the war.[4] "In the first place, there was, prior to 1776, the official class; that is, the men holding various positions in the civil and military and naval services of the government, their immediate families, and their social connections. All such persons may be described as inclining to the Loyalist view in consequence of official bias. "Next were certain colonial politicians who, it may be admitted, took a rather selfish and an unprincipled view of the whole dispute, and who, counting on the probable, if not inevitable, success of the British arms in such a conflict, adopted the Loyalist side, not for conscience' sake, but for profit's sake, and in the expectation of being rewarded for their fidelity by offices and titles, and especially by the confiscated estates of the rebels after the rebels themselves should have been defeated, and their leaders hanged or sent into exile. "As composing still another class of Tories, may be mentioned probably a vast majority of those who stood for the commercial interests, for the capital and tangible property of the country, and who, with the instincts natural to persons who have something considerable to lose, disapproved of all measures for pushing the dispute to the point of disorder, riot and civil war. "Still another class of Loyalists was made up of people of professional training and occupation--clergymen, physicians, lawyers, teachers--a clear majority of whom seem to have been set against the ultimate measures of the Revolution. "Finally, and in general, it may be said that a majority of those who, of whatever occupation, of whatever grade of culture or of wealth, would now be described as conservative people, were Loyalists during the American Revolution."[5] These classes prior to the Revolution had largely shaped and molded public opinion; but their opposition to the movement which they were powerless to prevent, destroyed their influence, for the time being, in American politics. The place which they had hitherto held in public esteem was filled by a new class of leaders more in sympathy with the newly born spirit of liberalism. This gave to the revolutionary movement a distinctly democratic character. This drift toward democracy is seen in the changes made in the state constitutions after the outbreak of the Revolution. At the close of the colonial period, nearly all the state governments were modeled after the government of Great Britain. Each colony had its legislative body elected by the qualified voters and corresponding in a general way to the House of Commons. In all the colonies except Pennsylvania and Georgia there was also an upper legislative house or council whose consent was necessary before laws could be enacted. The members composing this branch of the legislature were appointed by the governor except in Massachusetts where they were elected by the lower branch of the legislature, subject to a negative by the royal governor, and in Rhode Island and Connecticut where they were chosen by the electorate. The governor was elected by the voters only in Rhode Island and Connecticut; in all the other colonies he was appointed by the proprietaries or the Crown, and, though independent of the people, exercised many important powers. He was commander-in-chief of the armed forces of the colony; appointed the judges and all other civil and military officers; appointed and could suspend the council, which was usually the upper branch of the legislature; he could convene and dissolve the legislature and had besides an unqualified veto on all laws; he also had an unrestricted pardoning power. The possession of these far-reaching powers gave to the irresponsible executive branch of the colonial government a position of commanding importance. This was not the case, however, in Connecticut and Rhode Island. Although the governor in these two colonies was responsible to the voters, inasmuch as he was elected by them, still he had no veto, and the appointing power was in the hands of the legislature. The tidal-wave of democracy, which swept over the colonies during the Revolution, largely effaced the monarchical and aristocratic features of the colonial governments. Connecticut and Rhode Island, which already had democratic constitutions, were the only states which did not modify their form of government during this period. All the rest adopted new constitutions which show in a marked degree the influence of the democratic movement. In these new constitutions we see a strong tendency to subordinate the executive branch of the government and confer all important powers on the legislature. In the four New England states and in New York the governor was elected by the qualified voters; in all the rest he was chosen by the legislature. In ten states during this period his term of office was one year; in South Carolina it was two and in New York and Delaware it was three years. In addition to this the six Southern states restricted his re-election. Besides, there was in every state an executive or privy council which the governor was required to consult on all important matters. This was usually appointed by the legislature and constituted an important check on the governor. The power to veto legislation was abolished in all but two states. In Massachusetts the governor, and in New York the Council of Revision composed of the governor and the chancellor and judges of the Supreme Court, had a qualified veto power. But a two-thirds majority in both houses of the legislature could override the veto of the governor in Massachusetts, or that of the Council of Revision in New York. The pardoning power of the governor was quite generally restricted. In five states he was allowed to exercise it only with the advice or consent of the council.[6] In three states, where the advice or consent of a council was not required, he could, subject to certain restrictions, grant pardons except where "the law shall otherwise direct."[7] The constitution of Georgia in express terms deprived the governor of all right to exercise this power. The appointing power of the governor was also taken away or restricted. In four of the eleven states adopting new constitutions during this period he was allowed to exercise it jointly with the council.[8] In six states it was given to the legislature, or to the legislature and council.[9] The power of the governor to dissolve the legislature or either branch of it was everywhere abolished. The supremacy of the legislature under these early state constitutions is seen also in the manner of appointment, the tenure and the powers of the judiciary. In nine states[10] the judges were elected by the state legislature, either with or without the consent of a council. In Maryland, Massachusetts, New Hampshire, and Pennsylvania they were appointed by the governor with the consent of the council. But this really amounted to indirect legislative appointment in Maryland, since both the governor and council in that state were elected annually by the legislature. The legislature also had a voice in the appointment of judges in Pennsylvania, New Hampshire and Massachusetts, since it elected the executive in the first and the council in the others. In nine states, then, the judges were elected directly by the legislature; in one indirectly by the legislature; in the other three the legislature participated in their election through an executive or a council of its own choosing. In every state the judges could be impeached by the lower branch of the legislature and expelled from office on conviction by the senate or other tribunal, as the constitution prescribed. Moreover, in six states[11] they could be removed according to the English custom by the executive on an address from both branches of the legislature. The term of office of the judges in eight states[12] was during good behavior. In New Jersey and Pennsylvania they were appointed for seven years, and in Rhode Island, Connecticut, and Georgia they were chosen annually. The legislature under these early state constitutions was hampered neither by the executive nor by the courts. It had all law-making power in its own hands. In no state could the courts thwart its purpose by declaring its acts null and void. Unchecked by either executive or judicial veto its supremacy was undisputed. From the foregoing synopsis of the state constitutions of this period it is evident that their framers rejected entirely the English theory of checks and balances. The principle of separation of powers as expounded by Montesquieu and Blackstone, found little favor with those who controlled American politics at this time. Instead of trying to construct a state government composed of coordinate branches, each acting as a check upon the others, their aim was to make the legislature supreme. In this respect the early state constitutions anticipated much of the later development of the English government itself. The checks and balances, and separation of powers, which characterized the government of England and her American colonies in the eighteenth century, resulted from the composite character of the English Constitution--its mixture of monarchy, aristocracy, and democracy. It is not surprising, then, that with the temporary ascendency of the democratic spirit, the system of checks should have been largely discarded. This democratic tendency is seen also in our first federal constitution, the Articles of Confederation, which was framed under the impulse of the Revolutionary movement. This document is interesting as an expression of the political philosophy of the Revolution; but like the state constitutions of that period, it has had few friendly critics among later political writers. Much emphasis has been put upon its defects, which were many, while but little attention has been given to the political theory which it imperfectly embodied. That it failed to provide a satisfactory general government may be admitted; but this result must not be accepted as conclusive proof that the principles underlying it were altogether false. The chief feature of the Articles of Confederation was the entire absence of checks and balances. All the powers conferred upon the general government were vested in a single legislative body called the Continental Congress, which was unchecked by a distinct executive or judiciary. In this respect it bore a striking resemblance to the English government of to-day with its omnipotent House of Commons. But, unlike the English government of to-day, its powers were few and narrowly limited. Its failure was due, perhaps, not to the fact that the powers granted to the confederation were vested exclusively in a single legislative body, but to the fact that the powers thus granted were not sufficient for maintaining a strong and effective central government. The reason for the weakness of the general government under the Articles of Confederation is obvious to the student of American history. It was only gradually, and as necessity compelled cooperation between the colonies, that the sentiment in favor of political union developed. And though some tendencies in this direction are seen more than a century before the American Revolution, the progress toward a permanent union was slow and only the pressure of political necessity finally brought it about. As early as 1643 Massachusetts, Plymouth, Connecticut and New Haven formed a "perpetual confederation" under the name of the "United Colonies of New England." The motive for this union was mainly offence and defence against the Indian tribes and the Dutch, though provision was also made for the extradition of servants and fugitives from justice. The management of the common interests of these colonies was vested in a board of eight commissioners--two from each colony--and, in transacting the business of the confederacy, the consent of six of the eight commissioners was required. Any matter which could not be thus disposed of was to be referred to the four colonial legislatures. The general government thus provided for could not inter-meddle "with the government of any of the jurisdictions." No provision was made for amending the "Articles of Confederation," and only by the unanimous consent of these colonies could any other colony be admitted to the confederacy. This union lasted for over forty years.[13] Again in 1754 the pressure of impending war with the French and Indians brought together at Albany a convention of delegates from seven colonies north of the Potomac. A plan of union drafted by Benjamin Franklin was recommended by this convention, but it was not regarded with favor either by the colonies or by the English government. The former regarded it as going too far in the direction of subordinating the separate colonies to a central colonial authority, while for the latter it was too democratic.[14] The union of all the colonies under the Articles of Confederation was finally brought about through the pressure of military necessity during the Revolution. Nor is it surprising, in view of the history of the American colonies, that they reluctantly yielded up any powers to a central authority. We must bear in mind that the Revolution was in a measure a democratic movement, and that democracy was then found only in local government. The general governments of all countries were at that time monarchical or aristocratic. Tyranny in the eighteenth century was associated in the minds of the people with an undue extension or abuse of the powers exercised by the undemocratic central government. It is not surprising, then, that the Revolutionary federal constitution, the Articles of Confederation, should have failed to provide a general government sufficiently strong to satisfy the needs of the country after the return of peace. It must not be inferred, however, that the political changes which immediately followed the outbreak of the Revolution were in the nature of sweeping democratic reforms. Much that was thoroughly undemocratic remained intact. The property qualifications for the suffrage were not disturbed by the Revolutionary movement and were finally abolished only after the lapse of nearly half a century. The cruel and barbarous system of imprisonment for debt which the colonies had inherited from England, and which often made the lot of the unfortunate debtor worse than that of the chattel slave, continued in several of the states until long after the Revolution. Marked as was the democratic tendency during the first few years of our independence, it nevertheless left untouched much that the progress of democracy has since abolished. CHAPTER III THE CONSTITUTION A REACTIONARY DOCUMENT The sweeping changes made in our form of government after the Declaration of Independence were clearly revolutionary in character. The English system of checks and balances was discarded for the more democratic one under which all the important powers of government were vested in the legislature. This new scheme of government was not, however, truly representative of the political thought of the colonies. The conservative classes who in ordinary times are a powerful factor in the politics of every community had, by reason of their Loyalist views, no voice in this political reorganization; and these, as we have seen, not only on account of their wealth and intelligence, but on the basis of their numerical strength as well, were entitled to considerable influence. With the return of peace these classes which so largely represented the wealth and culture of the colonies, regained in a measure the influence which they had lost. This tended strongly to bring about a conservative reaction. There was besides another large class which supported the Revolutionary movement without being in sympathy with its democratic tendencies. This also used its influence to undo the work of the Revolutionary radicals. Moreover, many of those who had espoused democratic doctrines during the Revolution became conservatives after the war was over.[15] These classes were naturally opposed to the new political doctrines which the Revolutionary movement had incorporated in the American government. The "hard times" and general discontent which followed the war also contributed to the reactionary movement; since many were led to believe that evils which were the natural result of other causes were due to an excess of democracy. Consequently we find the democratic tendency which manifested itself with the outbreak of the Revolution giving place a few years later to the political reaction which found expression in our present Constitution. "The United States are the offspring of a long-past age. A hundred years, it is true, have scarcely passed since the eighteenth century came to its end, but no hundred years in the history of the world has ever before hurried it along so far over new paths and into unknown fields. The French Revolution and the First Empire were the bridge between two periods that nothing less than the remaking of European society, the recasting of European politics, could have brought so near. "But back to this eighteenth century must we go to learn the forces, the national ideas, the political theories, under the domination of which the Constitution of the United States was framed and adopted."[16] It is the general belief, nevertheless, that the Constitution of the United States is the very embodiment of democratic philosophy. The people take it for granted that the framers of that document were imbued with the spirit of political equality and sought to establish a government by the people themselves. Widely as this view is entertained, it is, however, at variance with the facts. "Scarcely any of these men [the framers of the Constitution] entertained," says Fiske, "what we should now call extreme democratic views. Scarcely any, perhaps, had that intense faith in the ultimate good sense of the people which was the most powerful characteristic of Jefferson."[17] Democracy--government by the people, or directly responsible to them--was not the object which the framers of the American Constitution had in view, but the very thing which they wished to avoid. In the convention which drafted that instrument it was recognized that democratic ideas had made sufficient progress among the masses to put an insurmountable obstacle in the way of any plan of government which did not confer at least the form of political power upon the people. Accordingly the efforts of the Constitutional Convention were directed to the task of devising a system of government which was just popular enough not to excite general opposition and which at the same time gave to the people as little as possible of the substance of political power. It is somewhat strange that the American people know so little of the fundamental nature of their system of government. Their acquaintance with it extends only to its outward form and rarely includes a knowledge of the political philosophy upon which it rests. The sources of information upon which the average man relies do not furnish the data for a correct understanding of the Constitution. The ordinary text-books and popular works upon this subject leave the reader with an entirely erroneous impression. Even the writings of our constitutional lawyers deal with the outward form rather than the spirit of our government. The vital question--the extent to which, under our constitutional arrangements, the people were expected to, and as a matter of fact do, control legislation and public policy, is either not referred to, or else discussed in a superficial and unsatisfactory manner. That this feature of our Constitution should receive more attention than it does is evident when we reflect that a government works well in practice in proportion as its underlying philosophy and constitutional forms are comprehended by those who wield political power. "It has been common," says a late Justice of the United States Supreme Court, "to designate our form of government as a democracy, but in the true sense in which that term is properly used, as defining a government in which all its acts are performed by the people, it is about as far from it as any other of which we are aware."[18] In the United States at the present time we are trying to make an undemocratic Constitution the vehicle of democratic rule. Our Constitution embodies the political philosophy of the eighteenth century, not that of to-day. It was framed for one purpose while we are trying to use it for another. Is free government, then, being tried here under the conditions most favorable to its success? This question we can answer only when we have considered our Constitution as a means to the attainment of democratic rule. It is difficult to understand how anyone who has read the proceedings of the Federal Convention can believe that it was the intention of that body to establish a democratic government. The evidence is overwhelming that the men who sat in that convention had no faith in the wisdom or political capacity of the people. Their aim and purpose was not to secure a larger measure of democracy, but to eliminate as far as possible the direct influence of the people on legislation and public policy. That body, it is true, contained many illustrious men who were actuated by a desire to further what they conceived to be the welfare of the country. They represented, however, the wealthy and conservative classes, and had for the most part but little sympathy with the popular theory of government. "Hardly one among them but had sat in some famous assembly, had signed some famous document, had filled some high place, or had made himself conspicuous for learning, for scholarship, or for signal services rendered in the cause of liberty. One had framed the Albany plan of union; some had been members of the Stamp Act Congress of 1765; some had signed the Declaration of Rights in 1774; the names of others appear at the foot of the Declaration of Independence and at the foot of the Articles of Confederation; two had been presidents of Congress; seven had been, or were then, governors of states; twenty-eight had been members of Congress; one had commanded the armies of the United States; another had been Superintendent of Finance; a third had repeatedly been sent on important missions to England, and had long been Minister to France. "Nor were the future careers of many of them to be less interesting than their past. Washington and Madison became Presidents of the United States; Elbridge Gerry became Vice-President; Charles Cotesworth Pinckney and Rufus King became candidates for the Presidency, and Jared Ingersoll, Rufus King, and John Langdon candidates for the Vice-Presidency; Hamilton became Secretary of the Treasury; Madison, Secretary of State; Randolph, Attorney-General and Secretary of State, and James McHenry, a Secretary of War; Ellsworth and Rutledge became Chief-Justices; Wilson and John Blair rose to the Supreme bench; Gouverneur Morris, and Ellsworth, and Charles C. Pinckney, and Gerry, and William Davie became Ministers abroad."[19] The long list of distinguished men who took part in the deliberations of that body is noteworthy, however, for the absence of such names as Samuel Adams, Thomas Jefferson, Thomas Paine, Patrick Henry and other democratic leaders of that time. The Federal Convention assembled in Philadelphia only eleven years after the Declaration of Independence was signed, yet only six of the fifty-six men who signed that document were among its members.[20] Conservatism and thorough distrust of popular government characterized throughout the proceedings of that convention. Democracy, Elbridge Gerry thought, was the worst of all political evils.[21] Edmund Randolph observed that in tracing the political evils of this country to their origin, "every man [in the Convention] had found it in the turbulence and follies of democracy."[22] These views appear to reflect the general opinion of that body. Still they realized that it was not the part of wisdom to give public expression to this contempt for democracy. The doors were closed to the public and the utmost secrecy maintained with regard to the proceedings. Members were not allowed to communicate with any one outside of that body concerning the matters therein discussed, nor were they permitted, except by a vote of the Convention, to copy anything from the journals.[23] It must be borne in mind that the Convention was called for the purpose of proposing amendments to the Articles of Confederation. The delegates were not authorized to frame a new constitution. Their appointment contemplated changes which were to perfect the Articles of Confederation without destroying the general form of government which they established. The resolution of Congress of February 21, 1787, which authorized the Federal Convention, limited its business to "the sole and express purpose of revising the Articles of Confederation," and the states of New York, Massachusetts, and Connecticut copied this in the instructions to their delegates.[24] The aim of the Convention, however, from the very start was not amendment, but a complete rejection of the system itself, which was regarded as incurably defective. This view was well expressed by James Wilson in his speech made in favor of the ratification of the Constitution before the Pennsylvania convention. "The business, we are told, which was entrusted to the late Convention," he said, "was merely to amend the present Articles of Confederation. This observation has been frequently made, and has often brought to my mind a story that is related of Mr. Pope, who, it is well known, was not a little deformed. It was customary with him to use this phrase, 'God mend me!' when any little accident happened. One evening a link-boy was lighting him along, and, coming to a gutter, the boy jumped nimbly over it. Mr Pope called to him to turn, adding, 'God mend me!' The arch rogue, turning to light him, looked at him, and repeated, 'God mend you! He would sooner make half-a-dozen new ones.' This would apply to the present Confederation; for it would be easier to make another than to amend this."[25] The popular notion that this Convention in framing the Constitution was actuated solely by a desire to impart more vigor and efficiency to the general government is but a part of the truth. The Convention desired to establish not only a strong and vigorous central government, but one which would at the same time possess great stability or freedom from change. This last reason is seldom mentioned in our constitutional literature, yet it had a most important bearing on the work of the Convention. This desired stability the government under the Confederation did not possess, since it was, in the opinion of the members of the Convention, dangerously responsive to public opinion; hence their desire to supplant it with an elaborate system of constitutional checks. The adoption of this system was the triumph of a skillfully directed reactionary movement. Of course the spirit and intention of the Convention must be gathered not from the statements and arguments addressed to the general public in favor of the ratification of the Constitution, but from what occurred in the Convention itself. The discussions which took place in that body indicate the real motives and purposes of those who framed the Constitution. These were carefully withheld from the people and it was not until long afterward that they were accessible to students of the American Constitution. The preamble began with, "We, the people," but it was the almost unanimous sentiment of the Convention that the less the people had to do with the government the better. Hamilton wanted to give the rich and well born "a distinct, permanent share in the government."[26] Madison thought the government ought "to protect the minority of the opulent against the majority."[27] The prevalence of such views in this Convention reminds one of Adam Smith's statement, made a few years before in his "Wealth of Nations," that "civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all."[28] The solicitude shown by the members of this convention for the interests of the well-to-do certainly tends to justify Adam Smith's observation. The framers of the Constitution realized, however, that it would not do to carry this system of checks upon the people too far. It was necessary that the government should retain something of the _form_ of democracy, if it was to command the respect and confidence of the people. For this reason Gerry thought that "the people should appoint one branch of the government in order to inspire them with the necessary confidence."[29] Madison also saw that the necessary sympathy between the people and their rulers and officers must be maintained and that "the policy of refining popular appointments by successive filtrations" might be pushed too far.[30] These discussions, which took place behind closed doors and under pledge of secrecy, may be taken as fairly representing what the framers of our Constitution really thought of popular government. Their public utterances, on the other hand, influenced as they necessarily were, by considerations of public policy, are of little value. From all the evidence which we have, the conclusion is irresistible that they sought to establish a form of government which would effectually curb and restrain democracy. They engrafted upon the Constitution just so much of the features of popular government as was, in their opinion, necessary to ensure its adoption. CHAPTER IV THE SIGNIFICANCE OF THE AMENDMENT FEATURE OF THE CONSTITUTION All democratic constitutions are flexible and easy to amend. This follows from the fact that in a government which the people really control, a constitution is merely the means of securing the supremacy of public opinion and not an instrument for thwarting it. Such a constitution can not be regarded as a check upon the people themselves. It is a device for securing to them that necessary control over their agents and representatives, without which popular government exists only in name. A government is democratic just in proportion as it responds to the will of the people; and since one way of defeating the will of the people is to make it difficult to alter the form of government, it necessarily follows that any constitution which is democratic in spirit must yield readily to changes in public opinion. Monarchical and aristocratic constitutions on the other hand are always extremely conservative. Inasmuch as they express the opinion and guarantee the privileges of a dominant class, they are bulwarks erected against popular change. The privileged classes of any society regard stability as the chief political desideratum. They resist, and if possible prevent, those legal and political readjustments which the general progress of society makes necessary. Their interests are furthered in proportion as the system is one which renders change difficult. With this distinction in mind let us examine the Constitution of the United States. Was it the intention of the framers of this instrument that it should be merely a check upon the governmental machinery with the view of establishing popular control over it, or was it expected to constitute a check upon the people themselves? That it was not intended that the people should be given direct and complete control over the general policy of the government is clear from the fact that the Constitution was made so difficult to amend; for the right to control the political machinery, implies of necessity the right to make such changes in it from time to time, as are needed to make this control effective. It is evident from the views expressed in the Convention that one object of the Constitution was to secure stability by placing the government beyond the direct influence of public opinion. Madison, who has been called the "father of the Constitution," thought it "ought to secure the permanent interests of the country against innovation."[31] Hamilton said "all communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people ... [the latter] are turbulent and changing; they seldom judge or determine right." Therefore he advocated a permanent senate which would be able to "check the imprudence of democracy."[32] Gouverneur Morris observed that "the first branch [of the proposed Federal Congress], originating from the people, will ever be subject to _precipitancy_, _changeability_, and _excess_.... This can only be checked by _ability_ and _virtue_ in the second branch ... [which] ought to be composed of men of great and established property--_aristocracy_; men who, from pride, will support consistency and permanency; and to make them completely independent, they must be chosen _for life_, or they will be a useless body. Such an aristocratic body will keep down the turbulence of democracy."[33] This dread of the consequences of popular government was shared to a greater or less extent by nearly all the members of that Convention. Their aim was to find a cure for what they conceived to be the evils of an excess of democracy. "Complaints," says Madison in _The Federalist_, "are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority."[34] This criticism of the American government of the Revolutionary period gives us the point of view of the framers of the Constitution. We should remember, however, that the so-called majority rule to which Madison attributed the evils of that time had nothing in common with majority rule as that term is now understood. Under the laws then in force the suffrage was greatly restricted, while the high property qualifications required for office-holding had the effect in many cases of placing the control of legislation in the hands of the wealthier part of the community. But undemocratic as the system was, it was not sufficiently undemocratic to suit the framers of the Constitution. It was no part of their plan to establish a government which the people could control. In fact, popular control was what they were seeking to avoid. One means of accomplishing this was to make amendment difficult, and this accordingly was done. We need not be surprised that no provision was made for its original adoption, or subsequent amendment by direct popular vote.[35] The fact that the people can not directly propose, or even ratify changes in the fundamental law, is a substantial check upon democracy. But in addition to this, another check was provided in the extraordinary majority necessary to amend the Constitution. That it requires a two-thirds majority of both houses of Congress, or an application from the legislature in two-thirds of the states to merely set the machinery for constitutional amendment in motion, and that it requires for ratification of amendments proposed, the assent of legislatures or conventions in three-fourths of the states, ought to give one some idea of the extreme difficulty of changing our Constitution. Patrick Henry clearly saw that this lack of adequate provision for amendment was destructive of democracy. In the Virginia convention held to ratify the Constitution he said: "To encourage us to adopt it, they tell us that there is a plain, easy way of getting amendments. When I come to contemplate this part, I suppose that I am mad, or that my countrymen are so. The way to amendment is, in my conception, shut ..." After quoting Article V (the amendment feature of the Constitution), he continues: "Hence it appears that three-fourths of the states must ultimately agree to any amendments that may be necessary. Let us consider the consequence of this.... Let us suppose--for the case is supposable, possible and probable--that you happen to deal those powers to unworthy hands; will they relinquish powers already in their possession, or agree to amendments? Two-thirds of Congress, or of the state legislatures, are necessary even to propose amendments. If one-third of these be unworthy men, they may prevent the application for amendments; but what is destructive and mischievous, is, that three-fourths of the state legislatures, or of the state conventions, must concur in the amendments when proposed! In such numerous bodies, there must necessarily be some designing, bad men. To suppose that so large a number as three-fourths of the states will concur, is to suppose that they will possess genius, intelligence, and integrity, approaching to miraculous.... For four of the smallest states, that do not collectively contain one-tenth part of the population of the United States, may obstruct the most salutary and necessary amendments. Nay, in these four states, six-tenths of the people may reject these amendments.... A bare majority in these four small states may hinder the adoption of amendments; so that we may fairly and justly conclude that one-twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression, by refusing to accede to amendments.... Is this an easy mode of securing the public liberty? It is, sir, a most fearful situation, when the most contemptible minority can prevent the alteration of the most oppressive government; for it may, in many respects, prove to be such."[36] That such a small minority of the people should have the power under our constitutional arrangements to prevent reform, can hardly be reconciled with the general belief that in this country the majority rules. Yet small as was this minority when the Constitution was adopted, it is much smaller now than it was then. In 1900 one forty-fourth of the population distributed so as to constitute a majority in the twelve smallest states could defeat any proposed amendment. As a matter of fact it is impossible to secure amendments to the Constitution, unless the sentiment in favor of change amounts almost to a revolution. Only at critical times in our history have constitutional amendments been adopted. During sixty-one years from 1804 to 1865, and since 1870, no amendments have been made. The fifteen amendments were all adopted, either during the turbulent period of American politics which immediately followed the ratification of the Constitution, or during the reconstruction period after the Civil War. That it is not possible in ordinary times to change the Constitution is evident from the fact that of some twenty-two hundred propositions for amendment only fifteen have been adopted, and these during the periods above mentioned.[37] "The argument in favor of these artificial majorities," says Professor Burgess, "is that innovation is too strong an impulse in democratic states, and must be regulated; that the organic law should be changed only after patience, experience and deliberation shall have demonstrated the necessity of the change; and that too great fixedness of the law is better than too great fluctuation. This is all true enough; but, on the other hand, it is equally true that development is as much a law of state life as existence. Prohibit the former, and the latter is the existence of the body after the spirit has departed. When, in a democratic political society, the well-matured, long and deliberately formed will of the undoubted majority can be persistently and successfully thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and violence as there is from the caprice of the majority, where the sovereignty of the bare majority is acknowledged. The safeguards against too radical change must not be exaggerated to the point of dethroning the real sovereign."[38] What Professor Burgess seems to overlook is the fact that the framers of the Constitution deliberately intended to dethrone the numerical majority. The restrictions which they placed upon the exercise of the amending power were not only not inconsistent with the form of government which they established, but as a matter of fact absolutely necessary to ensure its preservation, since without such a limitation of the power to amend, the majority could easily overcome all other checks upon its authority. This feature of the Constitution, which nominally provides for amendment, but really makes it an impossibility, is perhaps the best proof we could have that the Constitution as framed and adopted represented the views of a minority who intended by this means to perpetuate their influence. But, we are told, this can not be the case since the states were free to accept or reject it. Let us not forget, however, that at no stage of the proceedings was the matter referred directly to the people. Bryce says: "Had the decision been left to what is now called 'the voice of the people,' that is, to the mass of the citizens all over the country, voting at the polls, the voice of the people would probably have pronounced against the Constitution."[39] Moreover, "the Convention met," as he observes, "at the most fortunate moment in American History [for securing the adoption of such a constitution].... Had it been attempted four years earlier or four years later at both of which times the waves of democracy were running high, it must have failed."[40] But even under these favoring conditions it was no easy task to get the states to adopt it. The advocates of the Constitution employed every argument and influence that could contribute to the desired result. They appealed with telling effect to the dread of European aggression. This induced many who had little sympathy with the proposed plan of government, to acquiesce in its adoption, believing that some sort of a strong government was necessary for purposes of defence. It was also boldly charged that money was employed to overcome opposition where other means of persuasion failed.[41] Our natural inclination is to disbelieve anything that reflects on the political methods employed by the founders of our government. Nevertheless, the widespread belief that the politicians and public men of that time were less corrupt than those of to-day is, as Professor McMaster says, a pure delusion. "A very little study of long-forgotten politics will suffice to show that in filibustering and gerrymandering, in stealing governorships and legislatures, in using force at the polls, in colonizing and in distributing patronage to whom patronage is due, in all the frauds and tricks that go to make up the worst form of practical politics, the men who founded our state and national governments were always our equals, and often our masters."[42] Of one thing we may be reasonably certain--the Constitution as adopted did not represent the political views of a majority of the American people--probably not even a majority of those entitled to vote. Universal suffrage, we must remember, did not then exist, and both property and religious qualifications limited the right to hold public office. This of itself is evidence that those who then controlled politics did not believe in the right of the majority to rule. And when we take account of the further fact that this was a time of political reaction, when the government of the country was largely in the hands of those who despised or feared democracy, we can easily see that the natural effects of a restricted suffrage may have been intensified by those methods of "practical politics" which not infrequently defeat the will of the majority even to-day under universal suffrage. That it was the intention of the framers of the Constitution to bring about, if possible, the adoption of a form of government of which the majority of the people did not approve, is clearly established by the record of their proceedings. Hamilton, referring to the plan of government which he had proposed, said: "I confess that this plan, and that from Virginia [the one submitted by Randolph and of which the Constitution as finally adopted was a modification], are very remote from the idea of the people. Perhaps the Jersey plan is nearest their expectation. But the people are gradually ripening in their opinions of government--they begin to be tired of an excess of democracy...."[43] "The Federal government was not by intention a democratic government. In plan and structure it had been meant to check the sweep and power of popular majorities. The Senate, it was believed, would be a stronghold of conservatism, if not of aristocracy and wealth. The President, it was expected, would be the choice of representative men acting in the electoral college, and not of the people. The Federal judiciary was looked to, with its virtually permanent membership, to hold the entire structure of national politics in nice balance against all disturbing influences, whether of popular impulse or of official overbearance. Only in the House of Representatives were the people to be accorded an immediate audience and a direct means of making their will effective in affairs. The government had, in fact, been originated and organized upon the initiative and primarily in the interest of the mercantile and wealthy classes. Originally conceived as an effort to accommodate commercial disputes between the States, it had been urged to adoption by a minority, under the concerted and aggressive leadership of able men representing a ruling class. The Federalists not only had on their side the power of convincing argument, but also the pressure of a strong and intelligent class, possessed of unity and informed by a conscious solidarity of material interests."[44] The Constitution would certainly have been rejected, notwithstanding the influences that were arrayed in favor of its adoption, but for the belief that it would shortly be amended so as to remove some of its more objectionable features. In the large and influential states of Massachusetts, New York, and Virginia it was ratified by very small majorities,[45] though each of these states accompanied its acceptance of the Constitution with various recommendations for amendment. As a result of these suggestions from the states ratifying it, the first Congress in 1789 framed and submitted the first ten amendments. The eleventh amendment was the outgrowth of the Supreme Court decision in the case of Chisholm v. The State of Georgia. In this case the court held, contrary to the interpretation given to the Constitution by Hamilton when defending it in _The Federalist_,[46] that a private plaintiff could sue a state in the Federal Court. This decision aroused a storm of indignation, and Congress in 1794 proposed the Eleventh Amendment, which counteracted the effect of this decision. The Twelfth Amendment, proposed by Congress in 1803, merely changed the method of electing the President to meet the requirements of the party system which had then come into existence. These first twelve amendments were all adopted during the infancy of the Constitution, and while it was still regarded as an experiment. But though they had the effect of quieting public opinion and allaying the fears of the people concerning the new form of government, they made no important changes in the Constitution, leaving all its main features as originally adopted. The same may be said of the last three amendments, which were the result of the Civil War. They were proposed and ratified, as Bryce says, "under conditions altogether abnormal, some of the lately conquered states ratifying while actually controlled by the Northern armies, others as the price which they were obliged to pay for the readmission to Congress of their senators and representatives."[47] These amendments were really carried through, not by the free choice of three-fourths of the states, as the Constitution requires, "but under the pressure of a majority which had triumphed in a great war,"[48] and used military and political coercion to accomplish what otherwise could not have been brought about. Nothing could have been farther from the intention of the victorious Northern states at that time than any important change in the form or character of the government which they had waged a gigantic civil war to defend and enforce. Slavery, it is true, was abolished to remove forever the bone of contention between the North and the South. But the Constitution survived the Civil War, unchanged in all its essential features, and more firmly established than ever. That the plan of government originally established has undergone no important modification by constitutional amendment can not be ascribed to the fact that important changes have not been suggested. With the growth of more liberal views concerning government many attempts have been made to remove the constitutional barriers erected by our forefathers to stay the progress of democracy. Among the political reforms contemplated by this numerous class of proposed amendments may be mentioned a shorter term for United States senators and election by popular vote; direct election of the President and the abolition of his veto power; a shorter term for Federal judges and their removal by the President on the joint address of both houses of Congress. The aim of all these proposed amendments has been the same, viz., to make the Constitution accord better with the democratic spirit of the time. It is interesting to observe, however, that with the single exception of the proposed election of United States senators by popular vote, not one of these had the support of either house of Congress, much less the two-thirds majority in both, or a majority in the legislatures of two-thirds of the states, as required to authorize their submission for ratification or rejection. Even this measure, which has passed the House of Representatives several times by an overwhelming vote, has been entirely ignored by the Senate. No proposal, then, to make any important change in the Constitution has ever obtained the preliminary two-thirds majority, to say nothing of the majority in three-fourths of the states, necessary for its adoption. That the majority required to propose an amendment is almost prohibitive of change, is shown by the record of popular elections and the journals of representative bodies. From the presidential election year of 1828, the first for which we have a record of the popular vote, down to 1900, the largest majority ever received by any candidate for the Presidency was that of Andrew Jackson in 1828, when he had less than 56 per cent. of the popular vote.[49] Nine elections since Jackson's time resulted in the choice of a President by less than a popular majority. No candidate in any presidential election from 1876 to 1900 inclusive has carried two-thirds of the states.[50] It is still more difficult for any important reform measure to secure a two-thirds majority in a representative assembly, as the proceedings of Congress and our state legislatures abundantly prove. This is true for the reason that a wealthy minority can exert an influence over such bodies out of all proportion to its numerical strength at the polls. Hence even a bare majority can seldom be obtained for any measure which interferes with or restricts the privileges of organized wealth. A two-thirds majority under such circumstances is practically impossible. And when we remember that any proposed amendment to the Constitution must twice run the gauntlet of representative assemblies, receiving first a two-thirds majority in both houses of Congress and later a majority in both houses of the legislature or in conventions in three-fourths of the states, we readily see that this provision effectually precludes the possibility of any important amendment. One of the principal objections to the Articles of Confederation--that they lacked a practical amending power--applies, then, with no less force to the Constitution itself. In one respect the Constitution is even more rigid than were the Articles of Confederation, since the Congress of the Confederation was the court of last resort for passing on the constitutionality of its own legislation. This gave to Congress under the Confederation at least a limited power of virtually amending the Articles of Confederation by the ordinary process of law-making--a power possessed by the legislature in all countries where the system of checks and balances is not recognized. Under the Constitution, however, this power to amend the fundamental law can be exercised only to a very limited extent by Congress, since the interpretation of the Constitution by that body for the purposes of law-making is subject to revision at the hands of the Federal Judiciary. The Constitution, then, more effectually prevents changes desired by the majority than did the Articles of Confederation, since the former guards against the possibility of amendment under the guise of ordinary legislation while the latter did not. Another distinction must be borne in mind. The Articles of Confederation made amendment difficult in order to prevent the general government from encroaching on the rights of the several states. It was not so much a disposition to make change impossible, or even difficult, as, by keeping the general government within established bounds, to leave the several states free to regulate their own affairs and change their institutions from time to time to suit themselves. This view finds support in the character of the early state constitutions. These were shaped by the same revolutionary movement which produced the Declaration of Independence, and were largely influenced in their practical working by the "self-evident" truths proclaimed in the latter. One of the axioms of political science embodied in the Declaration of Independence was the right of the people to alter or abolish the existing form of government. This principle, however, was expressly recognized in but few of the earlier state constitutions, which, as a rule, contained no provision for future amendment. But such provision was not really necessary, inasmuch as the power of the legislature was limited only by its responsibility to the electorate. A mere majority of the qualified voters might demand and secure the enactment of laws which would virtually amend the constitution. From this time on, however, we see a strong tendency to specify in the constitution itself the manner in which it could be changed; and by the time that the framers of the Federal Constitution met in Philadelphia in 1787 a majority of the state constitutions contained provisions of this kind. According to the Maryland constitution of 1776 it was necessary that an amendment should "pass the General Assembly, and be published at least three months before a new election" and confirmed by the General Assembly in the first session after such election.[51] The South Carolina constitution of 1778 permitted "a majority of the members of the senate and house of representatives" to adopt amendments after having given ninety days' notice of such intention. The constitution of Delaware, 1776, required that constitutional amendments should be assented to by five-sevenths of the lower house and seven-ninths of the upper. This check on amendment was largely inoperative, however, for the reason above mentioned, viz., that the legislature was supreme, and could enact by majority vote such laws as it saw fit, whether they were in harmony with the constitution or not. Five other state constitutions made provision for the adoption of amendments by conventions. The Pennsylvania constitution of 1776 provided for the election every seventh year by the freemen of the state of a "Council of Censors" to hold office during one year from the date of their election. This body had the power "to pass public censures, to order impeachments, and to recommend to the legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the constitution." They also had power to call a convention for amending the constitution. "But ... the amendments proposed ... shall be promulgated at least six months before the day appointed for the election of such convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject." This provision of the Pennsylvania constitution of 1776 was copied in the Vermont constitution of 1777. The constitution of Georgia, 1777, contained the following: "No alteration shall be made in this constitution without petitions from a majority of the counties, and the petition from each county to be signed by a majority of the voters in each county within this state; at which time the assembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions preferred to the assembly by the majority of the counties as aforesaid." The Massachusetts constitution of 1780 provided that the question of amendment should be submitted to the qualified voters of the state, and if two-thirds of those voting favored amendment, it was the duty of the legislature to order the election of delegates to meet in convention for that purpose. The New Hampshire constitution of 1784 contained a similar provision. We see, then, that several of the early state constitutions expressly gave, either directly to a majority of the qualified voters, or to their representatives, the right to amend; and even in Massachusetts, New Hampshire, and Delaware, whose constitutions expressly limited the power of the majority, the limitation was not effective, since the majority could push through under the guise of ordinary legislation, measures which virtually amounted to an exercise of the amending power. Such limitations on the power of the majority did not become effective until a judiciary not directly responsible to the people, acquired the right to declare acts of the legislature null and void. An examination of these features of the various state constitutions in force in 1787 shows clearly the reactionary character of the Federal Constitution. It repudiated entirely the doctrine then expressly recognized in some of the states and virtually in all, that a majority of the qualified voters could amend the fundamental law. And not only did it go farther than any state constitution in expressly limiting the power of the majority, but it provided what no state constitution had done--the means by which its limitations on the power of the majority could be enforced. A comparison of this feature of our Constitution with the method of amendment in other countries is interesting and instructive. In England no distinction is made between constitutional amendments and other legislation. And since the Crown has lost the veto power and the House of Commons established its right to override the opposition of the House of Lords, the most radical changes may be made without even the checks which impede ordinary legislation in the United States. In France amendment of the Constitution is almost as easy as in England, though a distinction is made between this and ordinary legislation. When both the Senate and Chamber of Deputies decide by an absolute majority in each that amendment is necessary, they meet in joint session as a National Assembly for that purpose. An absolute majority of the members composing the National Assembly is required to change the Constitution. Amendments to the Federal Constitution of Australia may be proposed by an absolute majority of both Houses of Parliament. Not less than two nor more than six months after the proposed amendment has been passed by both houses, it must be submitted to the qualified voters in each state. But if either house by an absolute majority passes a proposed amendment which is rejected by the other house, and passes it again by an absolute majority after an interval of three months, the Governor-General may submit the proposed amendment to the qualified voters. A proposed amendment is adopted if it is approved by a majority of all those voting and also by a majority in a majority of the states. In Switzerland the question whether the Federal Constitution ought to be amended must be submitted to a popular vote whenever demanded by either house of the Federal Assembly or by fifty thousand voters (about one-fifteenth of the voting population). A proposed amendment is adopted if it receives a majority of all the votes cast and at the same time a majority in a majority of the Cantons, a provision copied, as we have seen, in the Federal Constitution of Australia. These constitutions show the general tendency at the present time to make the majority supreme. In the countries which have been most influenced by democratic ideas constitutional barriers against change have largely or wholly disappeared. A constitution is in no proper sense the embodiment of the will of the people unless it recognizes the right of the majority to amend. Checks which prevent legal and political readjustment are a survival from monarchy and aristocracy and are not found in any full-fledged democracy. Constitutions which are really democratic contain only such checks upon the people, if indeed they can be called checks, as are calculated to insure the deliberate expression of the popular will. Constitutional provisions designed to obstruct amendment are not only an anomaly in popular government, but they are in the very nature of the case inoperative. This follows from the fact that the law-making body, whether it be the people themselves or a representative assembly, is the final interpreter of the constitution and may enact laws which virtually amend it. To make such provisions really effective the constitution must vest the power to prevent legislation in some branch of government not directly responsible to the people. Usually this is a King or hereditary class. Our Constitution, however, provides a substitute for these in its general system of checks and especially in the independence of our national judiciary, which in addition to the exercise of ordinary judicial functions is also practically a branch of the legislature. The constitutional status of the judiciary will be discussed in the following chapter. CHAPTER V THE FEDERAL JUDICIARY No part of our Constitution has received less adverse criticism than that which relates to the powers and tenure of the judiciary. Constitutional writers have almost without exception given it their unqualified approval, claiming that its wisdom is established beyond question by the political experience of the English-speaking race. To express a doubt as to the soundness of this view is to take issue with what appears to be the settled and mature judgment of the American people. Moreover, the authority of the courts is "the most vital part of our government, the part on which the whole system hinges."[52] This is true for the reason that the Federal judiciary is not only the most important of our constitutional checks on the people, but is also the means of preserving and enforcing all the other checks. To enable the Federal judges to exercise these important and far-reaching powers, it was necessary to make them independent by giving them a life tenure. This provision was in perfect harmony with the general plan and purpose of the Constitution, a document framed, as we have seen, with a view to placing effectual checks on the power of the majority. As a means to the end which the framers of the Constitution had in view, the independence of the judiciary was an admirable arrangement. Hamilton says: "Upon the whole, there can be no room to doubt that the Convention acted wisely in copying from the models of those constitutions which have established _good behavior_ as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution."[53] This is quoted with approval by Story in his Commentaries on the Constitution and this same line of argument has been followed by legal and political writers generally. But with all due respect for the eminent authorities who have placed so much stress on the political experience of other countries, we may venture to ask if the parallel which they have assumed really exists. Is the use made of this argument from analogy warranted by the facts in the case? Are we sure that the political experience of England proves the wisdom of an independent judiciary? This can best be answered by referring to the circumstances which gave rise to the doctrine that the judges should be independent. In England formerly the Crown appointed the judges and could remove them. This power of appointment and removal placed the courts under the control of the King and made it possible for him to use them as a means of oppressing the people. A striking example of the way in which this power could be abused was seen in the career of the notorious Jeffreys, the pliant judicial tool of the cruel and tyrannical James II. To guard against a repetition of this experience it was urged that the judges be made independent of the King. This was done in 1701 by the Act of Settlement which provided that judges should be removed only on an address from Parliament to the Crown. This deprived the King of the power to remove judges on his own initiative and virtually gave it to Parliament. The object of this provision was to place a check in the interest of the people upon the arbitrary power of the Crown. It made the judges independent of the King, but at the same time established their responsibility to Parliament by giving the latter the right to demand their removal.[54] The statement so often made and so generally believed that the American judicial system was modeled after that of Great Britain will not bear investigation. English judges are not and never have been independent in the sense in which that word is used with reference to the Federal judiciary of the United States. In making the judges independent of the King, Parliament had no intention of leaving them free to exercise irresponsible powers. To have made them really independent would have been to create a new political power of essentially the same character and no less dangerous than the power of the King which they were seeking to circumscribe. "In England," says Jefferson, "where judges were named and removable at the will of an hereditary executive, from which branch most misrule was feared, and has flowed, it was a great point gained, by fixing them for life, to make them independent of that executive. But in a government founded on the public will, this principle operates in an opposite direction, and against that will. There, too, they were still removable on a concurrence of the executive and legislative branches. But we have made them independent of the nation itself."[55] There is, as a matter of fact, nothing in the political experience of Great Britain to support the belief in an independent judiciary. The judges there do not constitute a co-ordinate branch of the government and can not enforce their opinion in opposition to that of Parliament. Instead of being independent, they are strictly dependent upon Parliament whose supreme power and authority they are compelled to respect. This being the case, it is hardly necessary to observe that the courts in England do not exercise legislative functions. The power to decide upon the wisdom or expediency of legislation is vested exclusively in Parliament. The courts can not disregard a statute on the ground that it is in conflict with the Constitution, but must enforce whatever Parliament declares to be the law. As the judiciary under the English system has no voice in the general policy of the state, the tenure of judges during good behavior carries with it no power to thwart the popular will. The provision in the Constitution of the United States for the life tenure of a non-elective judiciary serves, however, an altogether different purpose. It was designed as a check, not upon an irresponsible executive as was the case in England, but upon the people themselves. Its aim was not to increase, but to diminish popular control over the government. Hence, though professing to follow the English model, the framers of the Constitution as a matter of fact rejected it. They not only gave the Federal judges a life tenure, but made that tenure unqualified and absolute, the power which Parliament had to demand the removal of judges being carefully witheld from the American Congress. This reversed the relation which existed between the legislative and judicial branches of government under the English system and raised the judiciary from a dependent and subordinate position to one that made it in many respects supreme. The most important attribute of sovereignty, that of interpreting the Constitution for the purposes of law-making, which belonged to Parliament as a matter of course, was withheld from Congress and conferred upon the Federal judiciary. Not only, then, did the framers of the Constitution depart from the English model in making the Federal judiciary independent of Congress, but they went much farther than this and conferred upon the body whose independence and irresponsibility were thus secured, powers which under the English system were regarded as the exclusive prerogative of a responsible Parliament. This made our Supreme judges, though indirectly appointed, holding office for life and therefore independent of the people, the final interpreters of the Constitution, with power to enforce their interpretation by declaring legislation null and void. A more powerful check upon democratic innovation it would be hard to devise. The main reason for making the Federal judges independent and politically irresponsible has not been generally recognized. Thus, in a recent work Professor Channing, while expressing some disapproval of this feature of our system, fails to offer a satisfactory explanation of its origin. "Perhaps nothing in the Constitution of the United States is more extraordinary," he tells us, "than the failure of that instrument to provide any means for getting rid of the judges of the Federal courts except by the process of impeachment. In England, in Massachusetts and in Pennsylvania, judges could be removed by the executive upon address by both branches of the legislative body.[56] In none of these cases was it necessary to allege or to prove any criminal act on the part of the judge. In colonial days the tenure of the judicial office had been of the weakest. In the royal provinces, the judges had been appointed by the Crown and had been removable at pleasure. In the charter colonies, the judges had been appointed by the legislature, and their tenure of office was generally for one year. The precariousness of the judicial office in the royal provinces had more than once led to attempts on the part of the colonists to secure greater permanency, because a permanent judiciary would afford them protection against the royal authorities. All attempts of this kind, however, had been defeated by the negative voice of the government of England. Possibly the permanence of judicial tenure which is found in the Constitution of the United States may be regarded in some sort as the result of this pre-revolutionary contest."[57] As a matter of fact, however, there is nothing extraordinary or difficult to explain in this permanency of judicial tenure which the Constitution established. It was not in the charter colonies where annual legislative appointment of judges was the rule, but in the royal provinces that efforts were made by the people to secure greater permanency of judicial tenure. They wished to give the judges more independence in the latter, because it would be the means of placing a check upon irresponsible authority, but were satisfied with a short term of office for judges in the colonies where they were elected and controlled by the legislature. Any explanation of the permanent tenure of our Federal judges "as the result of this pre-revolutionary contest" is insufficient. It was clearly a device consciously adopted by the framers of the Constitution, not for the purpose of limiting irresponsible authority, but for the purpose of setting up an authority that would be in large measure politically irresponsible. Conservative writers while giving unstinted praise to this feature of the Constitution have not explained its real significance. They have assumed, and expect us to take it for granted, that the Federal judiciary was designed as a means of making the will of the people supreme; that its independence and exalted prerogatives were necessary to enable it to protect the people against usurpation and oppression at the hands of the legislative branch of the government. Hamilton tells us, "The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy, it is an excellent barrier to the despotism of the prince; in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body.... "The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority.... Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void....[58] "Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.... "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. "If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this can not be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their _will_ to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.... "This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."[59] This argument for an independent judiciary, which has been adopted by all writers who have attempted to defend the system, may be summarized as follows: The Constitution being the solemn and deliberate expression of the will of the people, is the supreme law of the land. As such it enumerates the powers of the several branches of the government and sets limits to their authority. Any act, therefore, on the part of the agents or representatives of the people, which exceeds the authority thus delegated, is in violation of the fundamental law and can not bind those whom they profess to represent. These checks upon the agents and representatives of the people can not be enforced, however, if each branch of the government is to be permitted to determine for itself what powers the Constitution has conferred upon it. Under such a system Congress would overstep the limits which have been placed upon its authority and substitute its own will for the will of the people. To prevent this the framers of the Constitution placed the courts, in their scheme of government, between the people and the legislature and gave them power to determine and enforce the constitutional limitations on the authority of Congress. This put the Constitution and the rights and liberties of the people under the protection of their natural guardian, the Federal judiciary, and thereby secured the people against the danger of legislative tyranny. We must not forget the circumstances under which Hamilton wrote this defence of the Federal judiciary. Although the Constitutional Convention had spared no pains to prevent the publication of its proceedings, the feeling was more or less general that the whole movement was a conspiracy against popular government. "The charge of a conspiracy against the liberties of the people," said Hamilton, "which has been indiscriminately brought against the advocates of the plan [the Constitution], has something in it too wanton and too malignant not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye have been of a nature to demand the reprobation of all honest men."[60] The evidence now accessible to students of the American Constitution proves that the charges of "concealments and misrepresentations" made with this show of righteous indignation against the opponents of the Constitution might have justly been made against Hamilton himself. But knowing that the views expressed in the Federal Convention were not public property, he could safely give to the press this "refutation of the calumny." The publication of the debates on the Constitution at that time would have shown that the apprehensions of the people were not entirely without justification. The advocates of the new form of government did not propose to defeat their own plans by declaring their real purpose--by explaining the Constitution to the people as they themselves understood it. For it was not to be supposed that the people would permit the adoption of a form of government the avowed object of which was to limit their power. Therefore the conservatives who framed the Constitution and urged its ratification posed as the friends of democracy. Professing to act in the name of, and as the representatives of the people, they urged them to accept the Constitution as a means of restraining their agents and representatives and thereby making their own will supreme. It was not the aim of these articles, written, as they were, to influence public opinion, to explain the real purpose of the Constitution, but rather to disguise its true character. In this species of political sophistry Hamilton was a master. It is, to say the least, strange that the misstatement of historical facts, false analogies and juggling of popular catch-words which constitute his defence of the Federal judiciary should have been so often referred to as an example of faultless logic and a complete vindication of the system. Hamilton's interpretation of the Constitution as contained in these articles was merely for popular consumption, and not a frank and unequivocal expression of what he himself really believed. He was an uncompromising opponent of democracy and considered the English government of that day, with its hereditary monarchy and aristocracy, the best form of government ever devised.[61] He favored therefore as near an approach to the English system as the circumstances of the case would permit. According to the plan which he submitted to the Convention the executive branch of the government was to be placed beyond the reach of public opinion by a method of appointment designed to guard against the choice of a popular favorite and by life tenure. Not only did he wish to make the President independent of the people, but he proposed to give him an absolute veto on all acts of Congress. Moreover, the President was to appoint the governors of the various states, and these, like the royal governors before the Revolution, were to have an absolute veto on the acts of the state legislatures.[62] This would have made the President a monarch in all but name, and though independent of the people, have given him power to thwart legislation which no majority in Congress, however great, could override. But this did not go far enough in the direction of providing checks on popular legislation to suit Hamilton. The members of the upper house of Congress were, like the President, to be indirectly elected and to hold office for life. And finally over and above Congress was to be placed a Supreme Court whose members, by their mode of appointment and life tenure, were to be independent of the people. This body, which was to be the final interpreter of the Constitution, was designed as an additional safeguard against democratic legislation. The lower house of Congress was the only branch of the government in which any provision was made, under Hamilton's plan, for the representation of public opinion. Through the House of Representatives the people were to have an opportunity to propose legislation, but no power to enact it, or to control the general policy of the government. The refusal of the Convention to endorse the scheme of government proposed by Hamilton must not be understood as implying lack of sympathy with the political views which it embodied. With his main purpose, that of effectually curbing the power of the majority, nearly all the members of that body were in full accord. They were, however, shrewd experienced men of affairs who understood the temper of the people and knew that their plan of political reorganization could be carried through only by disguising its reactionary character and representing it as a democratic movement. To have submitted the Constitution in the form in which it was proposed by Hamilton would have defeated their purpose. It was too obviously undemocratic, inasmuch as it provided for a strong centralized government only one branch of which was to be elected by the people, while the other three were to be placed beyond the reach of public opinion through indirect election and life tenure. The Constitution as framed and submitted was more democratic in appearance, though it really contained all that was essential in Hamilton's plan. Life tenure for the President and Senate was discarded, it is true, but indirect election was expected to ensure their independence. The absolute veto on Federal and state legislation which Hamilton proposed to give to a permanent executive was the most serious practical objection to his scheme, since it showed too clearly the purpose of the Convention to make the aristocratic element supreme not only in the general government but in the states as well. In form and appearance the Constitution merely gave the President a qualified negative on the acts of Congress; but in reality the Convention went much farther than this and conferred the absolute veto on federal and state legislation contended for by Hamilton. The power was merely transferred from the President in whose hands he had proposed to place it, and given to the Supreme Court. The end which he had in view was thus attained without arousing the opposition which would have been inevitable had there been anything in the Constitution to indicate that such a power was intended to be conferred. These facts disclose the true motive for Hamilton's untiring efforts in behalf of the Constitution. He desired its adoption, not because he believed that it would make the will of the people supreme, as his above quoted references to _principal_ and _agent_ and _master_ and _servant_ would seem to imply, but for the opposite reason that it would make the government largely independent of public opinion. As a matter of fact, Hamilton had no use whatever for a political system which assumed that the people were a _master_ or _principal_ and the government merely their _servant_ or _agent_. The chief merit of the Constitution from his point of view was not its acceptance, but its repudiation of this principle. Had it been framed on the theory that the will of the people is the supreme law of the land, no one would have been more bitterly opposed to its adoption than Hamilton himself. That he gave it his unqualified support is the best evidence that he did not believe that it would make the will of the people supreme. No intelligent man who carefully reads Hamilton's argument in defence of the Federal judiciary could be misled as to his real views. His dread of democracy is clearly seen in his desire to exalt the Supreme Court and subordinate Congress, the only branch of the government in which the people were directly represented. His seeming anxiety lest the legislative body should disregard the will of the people was a mere demagogic attempt to conceal his real motive. Had this been what he really feared, the obvious remedy would have been the complete responsibility of Congress to the people. In fact, this was necessarily implied in the doctrine of principal and agent which he professed to accept, but which found no recognition either in the constitution which he himself had suggested, or in the one finally adopted. To this theory of government the system which he defended was in reality diametrically opposed. Under the guise of protecting the people against misrepresentation at the hands of Congress, it effectually limited the power of the people themselves by tying the hands of their responsible agents. It deprived the people of the power to compel the enactment of law by making the consent of the Supreme Court necessary to the enforcement of all legislation, federal and state. This was a substantial compliance with Hamilton's proposal to give an absolute veto to an independent and permanent executive. It was a matter of but little consequence whether this power was conferred on a single person, as the President, or on a body, as the Supreme Court, provided the manner of appointment and tenure of those in whose hands it was placed, were such as to ensure an independent exercise of the power thus conferred. The result would be the same in either case: the law-making power would be placed beyond the reach of popular control. To allow the legislative body to be "the constitutional judges of their own power," Hamilton tells us, would be to affirm "that the servant is above his master." Hence it is necessary, he argues, to divest Congress of all authority to determine the extent of its own powers. To accomplish this the Supreme Court was made the constitutional judge of the powers of Congress and of its own powers as well. Hamilton's argument involves the assumption that, while it is dangerous to allow a frequently elected and responsible branch of the government to determine the extent of its own powers, it is at the same time eminently wise and proper to give, not only this power, but also the power to determine the authority of all other branches of government, to a permanent body whom the people neither elect nor control. His constant reference to the danger of legislative oppression was merely a mask for his hatred of popular government. He was anxious to curb the power of Congress because he feared that public opinion would too largely influence the proceedings of that body. On the other hand, he saw no danger of executive or judicial tyranny since these branches of the government were expected to be independent of public opinion. Hamilton's purpose was to limit the power of the people by subordinating that part of the government in which they were directly represented and strengthening those parts over which they had no direct control. His defence of the Constitution is thus really an argument against responsible government and a defence of the principles underlying monarchy and aristocracy. As the English judiciary is really an offshoot from the executive, the power of the court to declare legislation null and void may be regarded as merely a phase of the executive veto. No evidence of this can be found, it is true, in the constitutional history of England during the eighteenth and nineteenth centuries. But if we go back to the period preceding the revolution of 1688, it seems to be clearly established that the English courts claimed, and in a few instances exercised, the power to annul acts of Parliament. As late as 1686, in the case of Godden v. Hales, "the Court of King's Bench actually held that important provisions of the statute of 25 Charles II, cap. 2, were void because conflicting with the King's rightful prerogative."[63] When we remember that the courts were then under the control of the King, it is not surprising that they should have attempted to exercise this power in defence of the royal prerogative. But with the Revolution of 1688, which established the supremacy of Parliament, the last trace of the judicial negative disappeared. From that time on the right of Parliament to be the constitutional judge of its own powers has not been seriously questioned. Even the veto power of the King soon became obsolete, though in theory it for a time survived. Such was the constitutional status of the English judiciary when the American colonies asserted their independence. The new state constitutions adopted at the outbreak of the war, as has been shown in a previous chapter, represented the more democratic thought of the period and were really revolutionary in character. They abolished the veto power of the governor and failed to abolish the judicial negative only because it did not then exist.[64] This was followed after the Revolution by a conservative reaction which was not, however, a popular movement. It received no general support or sympathy from the masses of the people, but was planned and carried through by those whom we may describe as the ruling class, and who were, for the most part, strongly in sympathy with English political institutions. It was characterized by real, if not avowed, hostility to the new political ideas embodied in the Declaration of Independence and in the Revolutionary state constitutions. Its aim was to reform the state governments by restoring, as far as possible, the checks on democracy which the Revolutionary movement had swept away. The judiciary was the only branch of the state government in which the principle of life tenure had been retained, and therefore the only one which could be depended on to offer any effectual resistance to public opinion. Evidently, then, the easiest and most practicable method of accomplishing the end which the conservative classes had in view was to enlarge the powers of the judiciary. Accordingly an effort was made at this time in several of the states to revive and develop the judicial veto. A practical argument in favor of this check was doubtless the fact that it required no formal changes in the state constitutions, and, for this reason, was less likely to arouse formidable opposition than any avowed attempt to restore the system of checks. When the Constitutional Convention met in 1787 the courts in five states were beginning to claim the power to declare acts of the legislature unconstitutional. In a Virginia case as early as 1782 the judges of the court of appeals expressed the opinion "that the court had power to declare any resolution or act of the legislature, or of either branch of it, to be unconstitutional and void."[65] The court, however, did not exercise the power to which it laid claim. It merely declared a resolution of the House of Delegates invalid on the ground that it had been rejected by the Senate. This case is important only as showing that the court was then paving the way for the exercise of the power to annul acts of the legislature. The case of Trevett v. Weeden, decided by the Superior Court of Judicature of Rhode Island in September, 1786, is said to be the first in which a law was declared null and void on the ground that it was unconstitutional.[66] The court in this case did not expressly say that the law in question was unconstitutional and therefore void, but it refused to recognize its validity. The power which the court exercised to ignore a legislative act was promptly repudiated by the law-making body, and at the expiration of their term of office a few months later, the judges responsible for this decision were replaced by others. In 1786 or 1787 a case was decided in Massachusetts, and also one in New Jersey, in which it is claimed that the court declared a legislative act null and void. The first reported case in which an act of a legislature was held to be contrary to a _written_ constitution is that of Bayard v. Singleton, decided by the Superior Court of North Carolina in May, 1787. James Iredell, afterward a member of the North Carolina convention, held to ratify the Constitution, and a judge of the United States Supreme Court, and William R. Davie, one of the framers of the Constitution, were attorneys for the plaintiff, the party in whose interest the law was declared unconstitutional. This decision received much adverse criticism at the time. The judges "were fiercely denounced as usurpers of power. Spaight, afterwards governor, voiced a common notion when he declared that 'the state was subject to the three individuals, who united in their own persons the legislative and judicial power, which no monarch in England enjoys, which would be more despotic than the Roman triumvirate and equally insufferable.'"[67] Iredell, in a letter to Spaight written August 26, 1787, defended the decision as a means of limiting the power of the majority. "I conceive the remedy of a new election," he says, "to be of very little consequence, because this would only secure the views of a majority...."[68] Iredell expressed what was no doubt the real purpose of the judicial veto--the limitation of the power of the majority. In eight of the thirteen states the doctrine that the judiciary could refuse to enforce laws regularly enacted by the legislative body had not even been asserted by the courts themselves, much less recognized and accepted by the people generally. There is no evidence to warrant the belief that this power was anywhere claimed or exercised in response to a popular demand or that it had at this time become a firmly established or generally recognized feature of any state government. This being the case, there is no ground for the contention that the power to annul acts of the legislature was necessarily implied in the general grant of judicial authority contained in the Constitution. Moreover, it was not expressly conferred, for the Constitution as submitted and ratified contains no reference to this power. "There is no provision in the Constitution of the United States ... which clothes the judiciary with the power to declare an act of the legislature generally null and void on account of its conceived repugnance to the Constitution or on any other account."[69] It has been claimed that in this respect our general government is even less democratic than the framers of the Constitution intended. This view, however, is not borne out by the facts. The assertion of this far-reaching power by our national judiciary, though not expressly authorized by the Constitution, was nevertheless in harmony with the general spirit and intention of its framers. That the members of the Constitutional Convention declined to confer this power in unequivocal language does not justify the inference that they did not wish and intend that it should be exercised by the courts. Gouverneur Morris, who claims to have written the Constitution with his own hand, tells us that in framing that part of it relating to the judiciary, "it became necessary to select phrases," which, expressing his own views, "would not alarm others."[70] There was, it is true, some objection in the Convention to the doctrine that the Supreme Court should have authority to decide upon the constitutionality of Congressional legislation. Mercer and Dickinson believed that this power should not be exercised by the judiciary.[71] But it was contended on the other hand by Wilson, Luther Martin, Gerry, Mason, and Madison that this power could be exercised without any provision expressly conferring it.[72] In view of the fact that it was maintained by leading members of the Convention that this power could and should be exercised by the Federal judiciary, it is but reasonable to suppose that a majority of that body wished to confer it; for had this not been the case, the Constitution as submitted would have contained a provision expressly withholding it. But however much the Convention may have desired to give to the judiciary the power to veto legislation, it could not have been done by an express provision of the Constitution. Any such attempt would have disclosed altogether too clearly the undemocratic reactionary character of the proposed government and thus have prevented its adoption. This end was attained indirectly through the general system of checks which the Constitution imposed upon the other branches of the government and upon the people, since it made it possible for the judiciary to assume and exercise this power. There is nothing to indicate that the people generally appreciated the significance of this feature of the Constitution at the time of its ratification. Outside of the Constitutional Convention the judicial negative appears to have been seldom mentioned. Hamilton, the most courageous and outspoken opponent of popular government, claimed, it is true, that it would be the duty of the Federal courts "to declare all acts contrary to the manifest tenor of the Constitution void."[73] In a few of the state conventions held to ratify the Constitution the power was referred to. Oliver Ellsworth in the Connecticut convention,[74] James Wilson in the Pennsylvania convention,[75] and John Marshall in the Virginia convention,[76] expressed the opinion that the Constitution gave the Supreme Court the power to declare acts of Congress null and void. There is no reason for believing, however, that this was the generally accepted notion at that time. For even Marshall himself a few years later, as attorney in the case of Ware v. Hylton, which involved the validity of an act of the legislature of Virginia, appears to have defended the opposite view before the United States Supreme Court. In that case he said: "The legislative authority of any country can only be restrained by its own municipal constitution: this is a principle that springs from the very nature of society; and the judicial authority can have no right to question the validity of a law, unless such a jurisdiction is expressly given by the Constitution."[77] The mere fact that he presented this argument shows that the view which he afterwards held as Chief Justice of the United States Supreme Court was not then generally accepted. His contention on this occasion that the judiciary can not annul an act of the legislature unless the power be expressly conferred may have been at variance with the opinion which he really held, but it certainly was not opposed to what he regarded as the generally accepted view; otherwise, his argument would have been based on an admittedly false theory of judicial powers. The conclusion is irresistible that at this time the right of the judiciary to declare a legislative act null and void was not generally recognized. The framers of the Constitution clearly understood that this power was not implied in the sense that it was then a recognized function of the judiciary, or one necessarily contained in the Constitution as they interpreted it to the people to secure its adoption. It was by controlling the Executive and the Senate, and through these the appointment of Supreme judges, that they expected to incorporate this power in the Constitution and make it a permanent feature of our political system.[78] This purpose is evident in the appointments to the Supreme bench made during the twelve years of Federalist rule that followed the adoption of the Constitution. Of the thirteen chief and associate Justices appointed during this period, five had been members of the Constitutional Convention.[79] Eleven had been members of the various state conventions held to ratify the Constitution.[80] Three, as shown by the records of the federal and state conventions, had unequivocally expressed themselves in favor of the exercise of this power by the Supreme Court,[81] while another, James Iredell, had taken an active part in securing the first reported decision in which an act of a state legislature was declared null and void by a court on the ground that it was contrary to a written constitution.[82] Only one in this entire list had not taken part directly in framing or adopting the Constitution by serving as a delegate to the federal, or a state convention, or both.[83] All had been ardent supporters of the Constitution and were in full sympathy with its main purpose. It is true that Washington in the winter of 1795-6 offered the Chief Justiceship of the United States Supreme Court to Patrick Henry, who had been the ablest and most conspicuous opponent of the Constitution in the Virginia convention. Henry had, however, as Presidential elector voted for Washington for President in 1789 and had in the meantime become reconciled to the Constitution. Moreover, while he had been opposed to many features of the Constitution, he was from the first in full sympathy with the judicial veto. He thought the Constitution was defective in that it contained no assurance that such a power would be exercised by the courts. In his argument against the ratification of the Constitution in the Virginia convention he said: "The honorable gentleman did our judiciary honor in saying that they had firmness to counteract the legislature in some cases. Yes, sir, our judges opposed the acts of the legislature. We have this landmark to guide us. They had fortitude to declare that they were the judiciary, and would oppose unconstitutional acts. Are you sure that your Federal judiciary will act thus? Is that judiciary as well constructed, and as independent of the other branches, as our state judiciary? Where are your landmarks in this government? I will be bold to say that you can not find any in it. I take it as the highest encomium on this country, that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary."[84] The fact that only those who were in sympathy with the Constitution were recognized in these appointments becomes the more significant when we remember that several of the leading states ratified it by very slender majorities. In New York, Massachusetts, and Virginia the supporters of the Constitution barely carried the day; yet they alone were recognized in the five appointments to the Supreme bench from these states made during the period above mentioned. The opponents of the Constitution represented, moreover, not only in these states, but in the country at large, a majority of the people. Nevertheless, true to the purpose of those who founded our Federal government, the popular majority was entirely ignored and the Supreme Court so constituted as to make it represent the minority. Through these appointments the Federalists secured an interpretation of the Constitution in harmony with their political theories and thereby established the supremacy of the judiciary in our scheme of government. The subsequent success of the Supreme Court in asserting and enforcing its right to annul acts of Congress completed the establishment in this country of a form of government which Professor Burgess correctly describes as an "aristocracy of the robe."[85] The full significance of this annulling power is not generally understood. The Supreme Court claims the right to exercise it only as the guardian of the Constitution. It must be observed, however, that while professing to be controlled by the Constitution, the Supreme Court does, as a matter of fact, control it, since the exclusive right to interpret necessarily involves the power to change its substance. This virtually gives to the aristocratic branch of our government the power to amend the Constitution, though this power is, as we have seen, practically denied to the people. We have become so accustomed to the exercise of this power by the courts that we are in the habit of regarding it as a natural and necessary function of the judiciary. That this is an erroneous view of the matter is shown by the fact that this power "is scarcely dreamed of anywhere else."[86] In other countries the power is unknown whether the Constitution be unwritten as in England or written as in France, Germany, and Switzerland. Nor does it make any difference whether the government be national in character as in England and France, or federal as in Germany, Switzerland, and Australia. In no other important country are the courts allowed to veto the acts of the legislative body. The exercise of this power can be justified here only on the ground that it is indispensable as a means of preserving and perpetuating the undemocratic character of the Constitution. "This power [the Supreme Court] has the last word in the numberless questions which come under its jurisdiction. The sovereign people after a time conquers the other powers, but this Supreme Court almost always remains beyond its reach. For more than twenty or even thirty years, twice the _grande mortalis aevi spatium_, it may misuse its authority with impunity, may practically invalidate a law voted by all the other powers, or a policy unanimously accepted by public opinion. It may nullify a regular diplomatic treaty[87] ... by refusing to enforce it by judicial sanction, or may lay hands on matters belonging to the sovereignty of the states and federalize them without one's being able to make any effective opposition, for this Court itself determines its own jurisdiction as against the state tribunals. It is one of Blackstone's maxims that in every constitution a power exists which controls without being controlled, and whose decisions are supreme. This power is represented in the United States by a small oligarchy of nine irremovable judges. I do not know of any more striking political paradox than this supremacy of a non-elected power in a democracy reputed to be of the extreme type. It is a power which is only renewed from generation to generation in the midst of a peculiarly unstable and constantly changing state of things--a power which in strictness could, by virtue of an authority now out of date, perpetuate the prejudices of a past age, and actually defy the changed spirit of the nation even in political matters."[88] It is a fundamental principle of free government that all legislative power should be under the direct control of the people. To make this control effective all laws must be enacted by the people themselves, or they must at least have what practically amounts to the power of appointing and removing their representatives. Democracy implies not merely the right of the people to defeat such laws as they do not want, but the power to compel such legislation as they need. The former power they possess in any country in which they control one coordinate branch of the legislature, even though the government be a monarchy or aristocracy. This negative power of defeating adverse legislation is merely the first step in the evolution of free government, and is possessed by the people in all countries which have made much constitutional progress. There is a vast difference, however, between a system under which the people constitute a mere check upon the government and one which gives them an active control over legislation. It is the difference between a limited monarchy or aristocracy on the one hand and a government by the people themselves on the other.[89] If this test be applied to the government of the United States we see that it lacks the essential feature of a democracy, inasmuch as laws can not be enacted without the consent of a body over which the people have practically no control. In one respect at least the American system is even less democratic than was the English government of the eighteenth century. The House of Commons was a coordinate branch of the legislature and as such had a recognized right to interpret the Constitution. No political program, no theory of state functions, could receive legislative sanction without its approval. The House of Commons could enforce its interpretation of the Constitution negatively since it had an absolute veto on all legislation. On the other hand its own views and policies could become law only in so far as they were acquiesced in by the other branches of the law-making authority. Under this system the accepted interpretation of the Constitution was a compromise, one to which each branch of the legislature assented. Each of these coordinate branches of the government was equally the guardian and protector of the Constitution, since it had the right to interpret, and the power to enforce its interpretation, of the legislative authority of the other branches by an absolute veto on their interpretation of their own powers. This authority to act as final interpreter of the Constitution which under the English system was distributed among King, Lords, and Commons, was under the American scheme of government taken out of the hands of Congress and vested in the judiciary alone. There are certain matters of minor importance, however, concerning which the interpretation placed upon the Constitution by other branches of the government is final. But in interpreting the Constitution for the purpose of legislating, the final authority is in the hands of the Federal Supreme Court. It is the exclusive possession of this most important prerogative of a sovereign legislative body which makes our Supreme Court the most august and powerful tribunal in the world. Through the sole right to exercise this power our Federal judiciary has become in reality the controlling branch of our government. For while it has an absolute veto on the acts of Congress, its own exercise of the highest of all legislative authority--that of interpreting the Constitution and the laws of the land--is unlimited and uncontrolled. It is not surprising, then, that the Constitution as it exists to-day is largely the work of the Supreme Court. It has been molded and developed by, and largely owes its spirit and character to the interpretation which that body has placed upon it. Our Supreme Court thus has what virtually amounts to the power to enact as well as the power to annul. Congress can legislate only with the consent of the Federal judiciary; but the latter, through its control over the interpretation of the Constitution may in effect legislate without the consent of the other branches of the government, and even in opposition to them. Under the guise of an independent judiciary we have in reality an independent legislature, or rather an independent legislative and judicial body combined. This union of sovereign legislative authority and ordinary judicial functions in the same independent body is a significant and dangerous innovation in government. It has not only deprived the people of the power to make the interpretation of the Constitution and the trend of legislation conform to the public sentiment of the times; it has even taken from them all effectual power to prevent changes which they do not want, but which the judiciary in the exercise of its exclusive right to act as the guardian and interpreter of the Constitution may see fit to make. Under our system, then, the people do not have even the negative power of absolute veto which they possess wherever they control a coordinate branch of the legislature. In so far as the exercise of legislative power is controlled by the Supreme Court our government is essentially aristocratic in character. It represents the aristocratic principle, however, in its least obtrusive form. But while avoiding the appearance, it provides the substance of aristocratic control. It is easy to see in the exaltation of the Federal judiciary a survival of the old mediaeval doctrine that the king can do no wrong. In fact, much the same attitude of mind which made monarchy possible may be seen in this country in our attitude toward the Supreme Court. As long as the people reverenced the king his irresponsible power rested on a secure foundation. To destroy the popular belief in his superior wisdom and virtue was to destroy the basis of his authority. Hence all criticism of the king or his policy was regarded as an attack on the system itself and treated accordingly as a serious political crime. The old view was well expressed by James I of England in a speech made in the Star Chamber on June 20, 1601, in which he said: "That which concerns the mystery of the King's power is not lawful to be disputed; for that is to wade into the weakness of princes, and to take away the mystical reverence that belongs unto them that sit on the throne of God."[90] We see this same fact illustrated also in the history of the church, for absolutism was not confined in the Middle Ages to the state alone. As the King was the recognized guardian of the established political order and its final interpreter, so the ecclesiastical hierarchy claimed the right to guard the faith and expound the creed of the people. Criticism and dissent, political and religious, were rigorously repressed. The people were required to accept the political and religious system imposed on them from above. Implicit faith in the superior wisdom of their temporal and spiritual rulers was made the greatest of all virtues. But with the growth of an intelligent skepticism throughout the western world, the power of king and priest has been largely overthrown. Yet even in this country something akin to the old system of political control still survives in the ascendency of our Federal judiciary. The exclusive right claimed by this branch of the government to guard and interpret the Constitution is the same prerogative originally claimed by the king. The judiciary, too, is the branch of our government farthest removed from the influence of public opinion and consequently the one in which the monarchical principle most largely survives. The courts not only claim to be the final arbiters of all constitutional questions, but have gone much farther than this and asserted their right to annul legislative acts not in conflict with any constitutional provision. Story says: "Whether, indeed, independently of the Constitution of the United States, the nature of republican and free government does not necessarily impose some restraints upon the legislative power has been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that, since the American Revolution, no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property."[91] The judiciary has thus claimed not only the power to act as the final interpreter of the Constitution, but also the right, independently of the Constitution, to interpret the political system under which we live, and make all legislative acts conform to its interpretation of that system. According to this doctrine the courts are the final judges of what constitutes republican government and need not base their power to annul a legislative act on anything contained in the Constitution itself. If we accept this view of the matter, legislation must conform not only to the Constitution as interpreted by the judiciary, but to the political and ethical views of the latter as well. The President and Congress derive their authority from the Constitution, but the judiciary claims, as we have seen, a control over legislation not conferred by the Constitution itself. Yet, while laying claim to powers that would make it supreme, the judicial branch of our Federal government has, as a rule, been careful to avoid any open collision, or struggle for supremacy, with the other branches of the government. It has retained the sympathy and approval of the conservative classes by carefully guarding the rights of property and, by declining to interfere with the political discretion of Congress or the President, it has largely escaped the hostile criticism which any open and avowed attempt to thwart the plans of the dominant party would surely evoke. But in thus limiting its own authority, the Supreme Court has attempted to make a distinction between judicial and political powers which does not appear to have any very substantial basis. The essential marks of a judicial power, Judge Cooley tells us, are "that it can be exercised only in a litigated case; that its direct force is spent in determining the rights of the parties to that case; and that unless and until a case has arisen for judicial determination, it can not be invoked at all."[92] "The power given to the Supreme Court," he says, "to construe the Constitution, to enforce its provisions, to preserve its limitations, and guard its prohibitions, is not _political_ power, but is judicial power alone because it is power exercisable by that court only in the discharge of the judicial function of hearing and deciding causes in their nature cognizable by courts of law and equity."[93] In the first place it is to be observed that judicial power as thus defined is practically co-extensive with that of the legislature, since scarcely an exercise of legislative authority could be mentioned which would not affect the rights of persons or of property and which could not, therefore, be made the subject of a judicial controversy. In the second place, it must be remembered that the Federal judiciary in assuming the exclusive right to interpret the Constitution has taken into its keeping a power which, as we have seen, was not judicial in character when the Constitution was adopted, and is not even now considered judicial in any other important country. In declaring a legislative act null and void it is exercising a power which every sovereign law-making body possesses, the power to defeat any proposed legislation by withholding its assent. The mere fact that our Supreme Judges and our legal writers generally have with practical unanimity called it a judicial power does not make it such. That it is in reality a legislative and not a judicial power is amply confirmed by the uniform and time-honored practice of all other nations, even including England, whose institutions until a century and a quarter ago were our own. There is, however, no difficulty in understanding why those who framed the Constitution and controlled its interpretation exhausted the arsenal of logic in trying to prove that it was a judicial power. This was merely a part of their plan to make the Supreme Court practically a branch of the Federal legislature and thereby secure an effective check on public opinion. As the power could not be expressly given without disclosing too clearly the purpose of the Convention, it was necessary that it should be implied. And it could be held to be implied only by showing that it was a natural, usual and, under the circumstances, proper power for the judiciary to exercise. Unless it could be established, then, that it was essentially a judicial function and not a political or legislative power, its assumption by the Supreme Court could not be defended on any constitutional grounds. This explains the persistent and untiring efforts to convince the American people that the power to set aside an act of Congress is purely judicial--efforts which, though supported by the weight of American authority, are far from convincing. The Supreme Court has, it is true, time and again expressly disclaimed all right to exercise legislative or political power; yet under the pretext that the authority to annul legislation is purely judicial, it has made use of a power that necessarily involves the exercise of political discretion. The statement, then, that it is the settled policy of this body not to interfere with the political powers of the other departments can not be taken literally, since under the accepted interpretation of the Constitution it has the power to, and as a matter of fact does interfere, whenever it declares an act of Congress null and void. It would be a mistake, then, to suppose that the Federal judiciary has suffered any loss of influence through its voluntary relinquishment of the veto power in the case of political questions. This self-imposed restriction on its authority merely affords it a convenient means of placing beyond its jurisdiction measures which it may neither wish to approve nor condemn. And since the court must decide what are and what are not political questions, it may enlarge or narrow the scope and meaning of the word _political_ to suit its purposes. As a matter of fact, then, the power which it appears to have voluntarily surrendered, it still largely retains. Upon the whole, the Supreme Court has been remarkably fortunate in escaping hostile criticism. Very rarely have its decisions and policy been attacked by any organized party. In the platform of the Republican party of 1860 the strong pro-slavery attitude of the court was, it is true, severely denounced. But from that time until 1896 no party dared to raise its voice in criticism of the Federal judiciary. Both the Democratic and the Populist platforms of the latter date, however, condemned the Income Tax decision and government by injunction. The Democratic platform also hinted at the possible reorganization of the Supreme Court--the means employed by the Republican party to secure a reversal of the Legal Tender decision of 1869. This comparative freedom from criticism which the Supreme Court has enjoyed until recent years does not indicate that its decisions have always been such as to command the respect and approval of all classes. It has from the beginning had the full confidence of the wealthy and conservative, who have seen in it the means of protecting vested interests against the assaults of democracy. That the Supreme Court has largely justified their expectations is shown by the character of its decisions. During the first one hundred years of its history two hundred and one cases were decided in which an act of Congress, a provision of a state constitution or a state statute, was held to be repugnant to the Constitution or the laws of the United States, in whole or in part. Twenty of these involved the constitutionality of an act of Congress. One hundred and eighty-one related to the Constitution or the statute of a state. In fifty-seven instances the law in question was annulled by the Supreme Court on the ground that it impaired the obligation of contracts. In many other cases the judicial veto was interposed to prevent what the court considered an unconstitutional exercise of the power to regulate or tax the business or property of corporations.[94] These decisions have been almost uniformly advantageous to the capital-owning class in preserving property rights and corporate privileges which the unhindered progress of democracy would have abridged or abolished. But we need not confine our attention to these comparatively few instances in which laws have actually been declared null and void. There is a much more numerous and more important class of cases in which the Supreme Court, while not claiming to exercise this power, has virtually annulled laws by giving them an interpretation which has defeated the purpose for which they were enacted. The decisions affecting the powers of the Inter-State Commerce Commission may be cited as an illustration. This body, created by Congress for the purpose of regulating the railway traffic of the country, has, as Mr. Justice Harlan observes,[95] "been shorn by judicial interpretation, of authority to do anything of an effective character." Both the general and the state governments in their efforts to grapple with this problem have encountered the restraining arm of the Federal judiciary which has enlarged its jurisdiction until nearly every important case involving corporate interests may be brought before the Federal court. It is not, however, in the laws which have been annulled or modified by interpretation that we find the chief protection afforded to capital, but rather in the laws which have not been enacted. The mere existence of this power and the certainty that it would be used in defence of the existing social order has well-nigh prevented all attacks on vested rights by making their failure a foregone conclusion. It is but natural that the wealthy and influential classes who have been the chief beneficiaries of this system should have used every means at their command to exalt the Supreme Court and thereby secure general acquiescence in its assumption and exercise of legislative authority. To the influence of these classes in our political, business, and social life must be attributed in large measure that widespread and profound respect for the judicial branch of our government which has thus far almost completely shielded it from public criticism. There are many indications, however, that popular faith in the infallibility of the Supreme Court has been much shaken in recent years. This is not surprising when we consider the wavering policy of that body in some of the important cases that have come before it. Take, for example, the _Legal Tender_ decisions. The court at first declared the legal tender acts unconstitutional by a majority of five to three. Then one of the justices who voted with the majority having resigned and Congress having created an additional judgeship, Justices Strong and Bradley were appointed to fill these vacancies. The former, as a member of the Supreme Bench of the State of Pennsylvania, had rendered a decision upholding the constitutionality of these acts, and the latter was said to hold the same opinion. At any rate the first decision was reversed by a majority of five to four. The point at issue in these two decisions was whether Congress had authority to enact measures of this kind in time of war. The matter coming up again, the Supreme Court decided, and this time by a majority of eight to one, that Congress had this power, not only during war, but in times of peace as well.[96] Reference should also be made in this connection to the Income Tax decisions of 1895. The first of these was a tie, four to four, Justice Jackson being absent. Six weeks later the second decision was read declaring the Income Tax unconstitutional by a vote of five to four, Justice Shiras, who had voted on the first hearing to uphold the Income Tax, now voting against it. This change in the attitude of a single member of the court converted what would have been a majority for, into a majority against the measure, overruled a line of decisions in which the tax had been sustained and thereby effectually deprived Congress of the power to impose a Federal Income Tax until such time as the court may change its mind. Even more significant are the recent Insular cases in which the division of opinion and diversity of grounds for the conclusions reached are, to say the least, surprising. One may well ask, after viewing these decisions, if constitutional interpretation as practiced by the Supreme Court is really a science in the pursuit of which the individual temperament, personal views and political sympathies of the Justices do not influence the result. Have we gained enough under this system in the continuity and consistency of our legislative policy and its freedom from class or political bias to compensate us for the loss of popular control? That these questions are likely to receive serious consideration in the near future we can scarcely doubt, when we reflect that the Supreme Court has, by the character of its own decisions, effectually exploded the doctrine of judicial infallibility, which constitutes the only basis upon which its monopoly of constitutional interpretation can be defended. The evident lack of sympathy with proposed reforms which has, upon the whole, characterized the proceedings of the Federal courts is rather strikingly illustrated in the address of Judge Taft on "Recent Criticisms of the Federal Judiciary." He makes use of the following language: "While socialism, as such, has not obtained much of a foothold in this country, ... schemes which are necessarily socialistic in their nature are accepted planks in the platform of a large political party. The underlying principle of such schemes is that it is the duty of the government to equalize the inequalities which the rights of free contract and private property have brought about, and by enormous outlay derived as far as possible from the rich to afford occupation and sustenance to the poor. However disguised such plans of social and governmental reform are, they find their support in the willingness of their advocates to transfer without any compensation from one who has acquired a large part of his acquisition to those who have been less prudent, energetic, and fortunate. This, of course, involves confiscation and the destruction of the principle of private property."[97] This emphatic condemnation of proposed reforms which had the full sympathy and approval of many thoughtful and conscientious people furnishes the show of justification at least for the very criticisms which it was intended to silence. With the progress of democracy it must become more and more evident that a system which places this far-reaching power in the hands of a body not amenable to popular control, is a constant menace to liberty. It may not only be made to serve the purpose of defeating reform, but may even accomplish the overthrow of popular rights which the Constitution expressly guarantees. In proof of this statement we need but refer to the recent history of our Federal judiciary. The Sixth Amendment to the Constitution guarantees the right of trial by jury in all criminal prosecutions; but it is a matter of common knowledge that this time-honored safeguard against the tyranny and oppression of ruling classes has been overthrown by the Federal courts. With the ascendency of corporate wealth and influence, government by injunction has become an important feature of our system. The use made of the injunction in recent years in the conflicts between labor and capital has placed a large and important class of crimes beyond the pale of this constitutional provision. Moreover, this particular class of crimes is the one where denial of the right of trial by jury is most likely to result in oppression. Under this mode of procedure the court has virtually assumed the power to enact criminal legislation, and may punish as crimes acts which neither law nor public opinion condemns. It ensures conviction in many cases where the constitutional right of trial by jury would mean acquittal. It places a powerful weapon in the hands of organized wealth which it is not slow to use.[98] This so-called _government by injunction_ is merely an outgrowth of the arbitrary power of judges to inflict punishment in cases of contempt. In this respect, as well as in the power to veto legislation, the authority of our courts may be regarded as a survival from monarchy. The right of judges to punish in a summary manner those whom they may hold to be in contempt of their authority has been defended by legal writers generally on the ground that it is the only way in which the necessary respect for judicial authority can be maintained. It is difficult, however, to see why this argument would not apply with equal force to the executive and legislative branches of the government; for there must be some means of enforcing obedience to every lawful authority, legislative, executive, or judicial. The progress toward responsible government has long since deprived the executive of the power to inflict arbitrary punishment, and the legislature, though still retaining in a limited degree the power to imprison for contempt of its authority, seldom uses and almost never abuses it. The question is not whether contempt of authority should be punished, but whether the officer whose authority has been disregarded should also act as judge and jury, should ascertain the guilt and fix the punishment of those whom he as complaining witness has accused of contempt of his authority. This procedure is utterly at variance with the idea of political responsibility, and survives only because the judicial branch of our government has thus far effectually resisted the inroads of democracy. That the exercise of this arbitrary and irresponsible power is necessary in a democratic community, to ensure proper respect for the courts, seems highly improbable. In fact, no course could be suggested which would be more likely in the end to bring them into disrepute.[99] It is interesting to observe that while the Supreme Court of the United States has not hesitated to veto an act of Congress, "no treaty, or legislation based on, or enacted to carry out, any treaty stipulations has ever been declared void or unconstitutional by any court of competent jurisdiction; notwithstanding the fact that in many cases the matters affected, both as to the treaty and the legislation, are apparently beyond the domain of Congressional legislation, and in some instances of Federal jurisdiction."[100] Why has the Federal Supreme Court freely exercised the power to annul acts of Congress and at the same time refrained from exercising a like control over treaties? The Constitution makes no distinction between laws and treaties in this respect. It provides that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority."[101] If this provision is to be interpreted as conferring on the Federal courts the power to declare acts of Congress null and void, it also confers the same power in relation to treaties. Moreover, the Supreme Court has claimed, and has been conceded, the right to act as the guardian of the Constitution. The authority thus assumed by the Federal judiciary can be justified, if at all, only on the theory that the Constitution limits all governmental powers, and that it is the duty of the Supreme Court to enforce the limitations thus imposed by declaring null and void any unconstitutional exercise of governmental authority. Not only in the Constitution itself was no distinction made between laws and treaties in relation to the power of the judiciary, but the same is true of the Judiciary Act of September 24, 1789, which provided that where the highest court in a state in which a decision in the suit could be had decides against the validity of "a treaty or statute of, or an authority exercised under, the United States," such judgment or decree "may be re-examined, and reversed or affirmed in the Supreme Court [of the United States] on a writ of error." The right of the Federal Supreme Court to declare both laws and treaties null and void was thus clearly and unequivocally recognized in this act. The object here, however, was not to establish judicial control over treaties, but to deprive the state courts of all authority over them. The failure of the Supreme Court to exercise the right to annul treaties is to be explained in part by the fact that the judicial veto was intended primarily as a check on democracy. From the point of view of the conservatives who framed the Constitution it was a device for protecting the classes which they represented against democratic "excesses" in both the state and Federal government. It was expected that this tendency would be manifested mainly in the legislation of the various states and possibly in some slight degree in Congressional legislation, since the President and Senate would occasionally find it expedient to yield too largely to the demands of the directly elected House. But in the case of treaties made by the President and Senate, both safely removed, as they thought, beyond the reach of popular influence, there was no obvious need of a conservative check. In developing the policy of the Federal courts in pursuance of the purpose of those who framed the Constitution, it was perfectly natural that the judicial veto should not have been used to limit the treaty-making power. But even if the Federal courts had felt inclined to extend their authority in this direction, the Constitution did not as in the case of Congressional legislation confer upon them the means of self-protection. In declaring null and void an act of Congress which did not have the support of at least two-thirds of the Senate, the Supreme Court is exercising a power which, if not expressly conferred upon it by the Constitution, it can at any rate exercise with impunity, since the majority in the Senate which it thus overrides is not large enough to convict in case of impeachment. All treaties must have the approval of two-thirds of the Senate; and since the majority in this body required to ratify a treaty is the same as that required to convict in impeachment proceedings, it is readily seen that the Senate has the constitutional power to prevent judicial annulment of treaties. Two-thirds of the Senate could not overcome judicial opposition, however, unless supported by at least a majority in the House of Representatives. But inasmuch as the Supreme Court is pre-eminently the representative of conservatism and vested interests, it is likely to disapprove of the policy of the Senate only when that body yields to the demands of the people. In all such cases the House would naturally support the Senate as against the Supreme Court. It is not surprising, then, that the Federal courts have not attempted to limit the treaty-making power. Before leaving the subject of the Federal courts one feature of the judicial negative deserves further notice. The fact that it is not exercised until a case involving the law in question is brought before the court in the ordinary course of litigation is often referred to by constitutional writers as one of its chief merits. And yet until a competent court has actually declared a legislative act null and void, it is for all practical purposes the law of the land and must be recognized as such. It may vitally affect industry and commerce and require an elaborate readjustment of business relations. It may even be years after such an act is passed before a decision is obtained from the court of last resort. And if the decision annuls the law, it does so not from the time that the judgment of the court is rendered, but from the time the act in question was originally passed. This retroactive character of the judicial veto is strongly suggestive of the _ex post facto_ legislation which the Constitution expressly forbids. By thus invalidating the law from the beginning it may leave a vast body of business contracts without legal protection or support. As a consequence, it is impossible for any one, be he ever so well informed, to know just what legislative acts are valid and what are not. The amount of uncertainty which this introduces into business relations is more easily imagined than described. America can claim the rather questionable distinction of being the only important country in which we find this uncertainty as to the law, since it is the only one in which the courts have a negative on the acts of the legislature. That we have ourselves realized the disadvantages of the system is shown by the changes made in the constitutions of several states with a view of diminishing the frequency of the judicial veto. These provisions make it the duty of the judges of the supreme court of the state to give their opinion upon questions of law when required by the governor or other branch of the law-making authority.[102] In so far as constitutional provisions of this sort have been intended to prevent the evils resulting from a deferred exercise of the judicial veto, they have largely failed to accomplish their purpose. This has been due to the attitude of the courts, which have held that an opinion thus given in compliance with a constitutional requirement is not binding upon them when the question is raised again in the ordinary way in the trial of a case. CHAPTER VI THE CHECKS AND BALANCES OF THE CONSTITUTION Two features of this system, the difficulty of amendment and the extraordinary powers of the judiciary have been discussed at some length. Both, as we have seen, were designed to limit the power of the popular majority. This purpose is no less evident when we view the Constitution as a whole. The members of the Federal Convention had little sympathy with the democratic trend of the Revolutionary movement. It was rapidly carrying the country, they thought, to anarchy and ruin. To guard against this impending evil was the purpose of the Constitution which they framed. It was their aim to eliminate what they conceived to be the new and false and bring the government back to old and established principles which the Revolutionary movement had for the time being discredited. They believed in the theory of checks and balances in so far as the system implied the limitation of the right of popular control, and made the Constitution to this extent as complete an embodiment of the theory as the circumstances of the time permitted. In any evolutionary classification of governments the American system occupies an intermediate position between the old type of absolute monarchy on the one hand and thoroughgoing democracy on the other. Following in a general way the course of political development in England, we may say that there was an early stage in the growth of the state when the power of the king was predominant. Neither the nobility nor the common people exercised any effective control over him. He was what we may call an absolute monarch. His power was unlimited in the sense that there were no recognized checks imposed upon it. He was irresponsible, since no one could call him to account for what he did. The upper classes, however, were anxious to share with the king the control of the state. Their efforts were directed first toward limiting his power by making their own consent necessary before he could enact any law, carry out any policy, or do any thing of a positive nature. But even after they had been admitted to this share in the government the negative power of the king remained unlimited. The veto power acquired by the upper classes might prevent him from enacting a particular law, or enforcing a given policy, but no one had a veto on his inaction. He might be unable to do what the classes having a voice in the management of the government forbade, but he could decline to do what they wished. The appearance of a House of Commons did not change essentially the character of the scheme, nor would it have done so, had this body been truly representative of the people as a whole. It placed an additional check on both King and Lords by giving to the representative body the power to negative their positive acts. Both the King and the Lords retained, however, their negative authority unimpaired and could use it for the purpose of defeating any measure which the Commons desired. This is what we may call the check and balance stage of political development. Here all positive authority is limited, since its exercise may be prevented by the negative power lodged for this purpose in the other branches of the government. This negative power itself, however, is absolute and unlimited. The government is in no true sense responsible to the people, or any part of them, since they have no positive control over it. This complex system of restrictions which is the outgrowth and expression of a class struggle for the control of the government must necessarily disappear when the supremacy of the people is finally established. This brings us to the next and for our present purpose, at least, the last stage of political evolution. Here the authority of the people is undisputed. Their will is law. The entire system of checks has been swept away. No irresponsible and insignificant minority is longer clothed with power to prevent reform. The authority of the government is limited only by its direct and complete responsibility to the people. Corresponding to these three stages of political evolution we have three general types of government: 1. Unlimited and irresponsible. 2. Positively limited, negatively unlimited and irresponsible. 3. Unlimited and responsible. As shown in a previous chapter, the Revolutionary movement largely destroyed the system of checks. It abolished the veto power, centralized authority and made the government in a measure responsible to the electorate. The Constitution, however, restored the old order in a modified form. In this sense it was reactionary and retrogressive. It went back to the old doctrine of the separation of powers, ostensibly to limit the authority of the government and thereby make it responsible to the people as Hamilton argued in _The Federalist_. That this could not have been the real object is evident to any one who has carefully studied the situation. The unthinking reader may accept Hamilton's contention that the system of checks and balances was incorporated in the Constitution to make the government the servant and agent of the people; but the careful student of history can not be so easily misled. He knows that the whole system was built up originally as a means of limiting monarchical and aristocratic power; that it was not designed to make government in any true sense responsible, but to abridge its powers because it was irresponsible. The very existence of the system implies the equal recognition in the Constitution of antagonistic elements. As it could not possibly exist where monarchy or aristocracy was the only recognized source of authority in the state, so it is likewise impossible where all power is in the people. It is to be observed, then, that what originally commended the system to the people was the fact that it limited the positive power of the king and aristocracy, while the framers of the Constitution adopted it with a view to limiting the power of the people themselves. There is no essential difference between the viewpoint of the framers of the American Constitution and that of their English contemporaries. Lecky says: "It is curious to observe how closely the aims and standard of the men who framed the memorable Constitution of 1787 and 1788 corresponded with those of the English statesmen of the eighteenth century. It is true that the framework adopted was very different.... The United States did not contain the materials for founding a constitutional monarchy or a powerful aristocracy.... It was necessary to adopt other means, but the ends that were aimed at were much the same. To divide and restrict power; to secure property; to check the appetite for organic change; to guard individual liberty against the tyranny of the multitude...."[103] Our Constitution was modeled in a general way after the English government of the eighteenth century. But while the English system of constitutional checks was a natural growth, the American system was a purely artificial contrivance. James Monroe called attention to this fact in the Virginia convention. He observed that the division of power in all other governments ancient and modern owed its existence to a mixture of monarchy, aristocracy, and democracy.[104] This artificial division of power provided for in the Constitution of the United States was intended as a substitute for the natural checks upon the people which the existence of king and nobility then supplied in England. This idea of government carried out to its logical conclusion would require that every class and every interest should have a veto on the political action of all the others. No such extended application of the theory has ever been made in the actual working of government, nor is it practicable, since no class can acquire, or having acquired, retain a veto on the action of the government unless it is large and powerful enough to enforce its demands. The attempt on the part of a small class to acquire a constitutional right of this character must of necessity fail. This is why the system which theoretically tends toward a high degree of complexity has not in practice resulted in any very complex constitutional arrangements. Poland is the best example of the practical working of a system of checks carried to an absurd extreme. The political disintegration and final partition of that once powerful country by its neighbors was due in no small degree to its form of government, which invited anarchy through the great power which it conferred upon an insignificant minority. The fact that this system can not be carried far enough in practice to confer upon every distinct interest or class the veto power as a means of self defence, has given rise to the doctrine of _laissez faire_. No class in control of the government, or even in possession of the power to negative its acts, has any motive for advocating the let-alone theory. Its veto power affords it adequate protection against any harmful exercise of political authority. But such is not the case with those smaller or less fortunate classes or interests which lack this means of self-protection. Since they do not have even a negative control over the government, they naturally desire to limit the scope of its authority. Viewed in this light we may regard the _laissez faire_ doctrine as merely supplementary to the political theory of checks and balances. It is easy to see that if the idea of checks were carried out in practice to its extreme limits, it would lead inevitably to the destruction of all positive authority by vesting a veto in each class and ultimately in each individual. In fact, John C. Calhoun, the ablest and most consistent expounder of this doctrine, defines a perfect popular government as "one which would embrace the consent of every citizen or member of the community."[105] When this last stage is reached we would have no government in any proper sense; for each individual would be clothed with constitutional power to arrest its action. Indeed the theory of checks and balances, if taken without any qualification and followed out consistently, leads naturally to the acceptance of anarchy as the only scientific system. The absence of king and aristocracy did not deter the members of the Convention from seeking to follow the English model. In doing this, however, it was necessary to find substitutes for the materials which were lacking. The constitutional devices adopted to accomplish this purpose form the system of checks and are the most original and interesting feature of our government. The English model was followed, however, only so far as it served their purpose. In the case of the judiciary, for instance, they declined to follow it; but the reason for this as explained in the preceding chapter was their desire to establish a more effective check on the people. They showed no special preference for the English form where some other method would better accomplish the desired purpose. Hence in many instances they deliberately rejected English precedent, but always with the view of providing something that would impose a more effective check on the public will. An apparent exception to this may be found in the limited term of President and United States senators. But these were the very instances in which lack of king and nobility made departure from the English model a matter of necessity. Moreover, any avowed attempt to provide an effective substitute for the hereditary branches of the English model would have been distasteful to the people generally and for that reason would have ensured the rejection of the Constitution. Theoretically, the nearest approach to the English system possible would have been life tenure, and there were not wanting those who, like Hamilton, contended for it; but the certainty of popular disapproval was an unanswerable argument against it. It was thought that substantially the same result could be obtained by indirect election for moderately long periods. Hence we notice a marked departure from the practice of the state constitutions in term of office and mode of election. In every state the governor was elected either by the legislature or directly by the voters, usually for one year and nowhere for as long a period as four years.[106] With only two exceptions[107] the members of the upper legislative chamber were directly elected by the qualified voters, generally for one year and in no state for as long a term as six years.[108] The desire of the Convention to secure to the President and United States Senators more freedom from popular control than was enjoyed by the corresponding state officials is most clearly seen in the mode of election prescribed.[109] They adopted what Madison called "the policy of refining popular appointments by successive filtrations." They provided that the President should be chosen by an electoral college, the members of which were not required to be elected by the people. This, it was thought, would guard against the choice of a mere popular favorite and ensure the election of a President acceptable to the conservative and well-to-do classes. It was taken for granted that the indirect method would enable the minority to control the choice. For a like reason they provided that United States senators should be chosen by the legislatures instead of by the people of the several states. The system as originally adopted did not contemplate, and made no provision for the selection of candidates in advance of a popular election. But this is not surprising when we reflect that it was the very thing they were trying to prevent. They intended that the electoral college should be such in fact as well as in name, that it should have and exercise the power of independent choice instead of merely registering a popular selection already made as if has come in practice to do. They recognized very clearly that there was a distinct line of cleavage separating the rich from the poor. They believed with Hamilton that in this respect "all communities divide themselves into the few and the many,"[110] that the latter will tend to combine for the purpose of obtaining control of the government; and having secured it, will pass laws for their own advantage. This, they believed, was the chief danger of democracy--a danger so real and imminent that it behooved the few to organize and bring about, if possible, such changes in the government as would "protect the minority of the opulent against the majority."[111] This was the purpose of the system of checks by which they sought to give the former a veto on the acts of the latter. In thus depriving the masses of the power to advance their interests through combination, they thought that the organization of a political party representing the many as opposed to the few would be discouraged. On the other hand, the few while co-operating for a common purpose, could best accomplish it without any visible party organization or any appearance of concerted action. Hence the Constitution as originally adopted made no provision for the party candidate. In view of the fact that the Constitution was intended to limit the power of the majority, it is perfectly natural that it should have attempted to assign to the popular branch of the government a position of minor importance. This was, of course, in direct opposition to what had been the uniform tendency during the Revolutionary period in the various states. In the latter the lower house had been raised to coordinate rank with the upper and in Massachusetts, Gerry tells us, the people were for abolishing the senate and giving all the powers of government to the other branch of the legislature.[112] In the Federal Constitution we see a strong reaction against this policy of enlarging the authority of the lower, and what was assumed to be the more popular branch of the legislative body. The House of Representatives was, it is true, given equal power with the Senate in the matter of ordinary legislation. But here its equality ends. The treaty-making and the appointing power were given to the President and Senate, where, it was thought, they would be safe from popular interference. The effect of this was to make the influence of these two branches of the government greatly preponderate over that of the directly elected House. Through the treaty-making power the President and Senate could in a most important sense legislate without the consent of the popular branch of Congress. They could enter into agreements with foreign countries which would have all the force and effect of laws regularly enacted and which might influence profoundly our whole social, political, and industrial life. The only semblance of a popular check on the exercise of this power was to be found in those cases where appropriations were required to carry treaties into effect. Here the House of Representatives, in theory at least, could defeat the treaty by refusing its assent to the necessary appropriation. In practice, however, the House has surrendered this power. A treaty is at no stage "submitted to or referred to the House of Representatives, which has no more right to be informed about it than ordinary citizens. The President and the Senate may, for example, cede or annex territories, and yet nothing of the fact will appear in the discussions of the House of Representatives unless the cession involves expenditure or receipt of money. Besides, I must add that even if the treaty contains clauses imposing a charge on the public revenue, it is the rule, since Washington's time, that the House of Representatives should not discuss the terms of the treaty adopted by the Senate, but accept it in silence as an accomplished fact, and simply vote the necessary funds."[113] The appointing power was in many respects even more important. It meant the right to select those who were to interpret and enforce the laws, and this really involved the power to mold the spirit and character of the government. That this was fully appreciated by those who framed the Constitution we saw in the preceding chapter. The statement contained in the Constitution that all legislative authority is vested in Congress is far from accurate, not only for the reason above indicated that a portion of it under the guise of treaty-making power is conferred on the President and Senate, and the further reason that the Supreme Court exercises legislative authority of great importance, but for the additional reason that the President, aside from his control over treaties, possesses legislative power co-extensive and co-equal with that of either house. He has been expressly given by the Constitution only a qualified veto, but it is so difficult for Congress to override it by the necessary two-thirds majority that it is in most cases as effective as an absolute negative.[114] Attention has been called to the fact that a two-thirds majority is difficult to secure even under the most favorable circumstances; but here the situation is such as to place practically insurmountable obstacles in the way of its attainment. As an illustration let us suppose that each state is solidly for or against the measure which the President has vetoed and that both Senators and Representatives accurately reflect the sentiment of their respective states. Then taking the population of the forty-five states in 1900 as the basis of our calculation, the smallest popular majority which would ensure the required two-thirds vote in both houses would be obtained by taking enough of the smaller states to make the necessary majority in the House. But this would mean a popular majority of over 65 per cent. and an eight-ninths majority in the Senate. To obtain the necessary vote in both houses by taking the larger states would require a popular majority of over 93 per cent. and a nine-tenths majority in the House. This gives us some, but by no means an adequate, idea of the President's control over legislation. He may use in support of his veto all the other powers which the Constitution has placed in his hands; and when we consider the immense influence which he can bring to bear upon Congress, especially through his control over appointments, we can readily see the practical impossibility of enacting any measure which he opposes with all the powers at his command. Moreover, the President and Senate would, it was expected, belong to the same class, represent the same interests, and be equally faithful in guarding the rights of the well-to-do. They were to be, therefore, not so much a check on each other, as a double check on the democratic House; and as against the latter, it was the intention that the qualified negative of the President should, in all important matters concerning which the radical and conservative classes disagreed, be fully equivalent to an absolute veto. This follows from the fact that the Senate would in such cases sympathize with the action of the President and refuse to co-operate with the House in overriding it. It was believed by the framers of the Constitution that the veto power of the President would be seldom used. This was true until after the Civil War. Washington used the power only twice; John Adams, Jefferson, J.Q. Adams, Van Buren, Taylor, and Fillmore did not make use of it at all. During the first seventy-six years of our history under the Constitution the power was exercised only fifty-two times. Andrew Johnson was the first President to use it freely, vetoing as many acts as were vetoed by the first eight Presidents. The largest use of the veto power was by President Cleveland who, during his first term, exercised it three hundred and one times.[115] In conferring the veto power on the President the members of the Convention were actuated by the desire to strengthen a conservative branch of the government rather than by any desire to copy the English Constitution, or the constitutions of the American states. As a matter of fact, the veto power of the Crown was then obsolete, Hamilton himself remarking in the Convention that it had not been used since the Revolution of 1688,[116] while in all but two states the last vestige of it had been destroyed.[117] The position of the President was still further strengthened by discarding the executive council which then existed in every state as a check upon the governor and which was a prominent feature of the English government of that time. In England this council, forming the Ministry or Cabinet, had not, it is true, definitely assumed the form which characterizes it now; but it had deprived the King of all power to act except through ministers who were responsible and could be impeached by Parliament. This, of course, had greatly weakened the executive, a fact which fully explains why the framers of the Constitution rejected it and went back to the earlier English king whose veto power was unimpaired for their model. As their plan contemplated a strong independent executive who would not hesitate to use the far-reaching powers placed in his hands to defeat measures which he disapproved of, it was necessary to guarantee him against popular removal. In this respect again we see both English and American constitutional practice disregarded, since neither afforded the desired security of tenure. In the various states the governor was liable to be impeached by the lower branch of the legislature and expelled from office when convicted by the senate, which was usually the court before which impeachment cases were tried. A mere majority in each house was usually sufficient to convict,[118] and as both houses were directly elected,[119] it virtually gave the majority of the voters the power to remove. This was simply an adaptation of the English practice which allowed a majority of the Commons to impeach and a majority of the Lords to convict. That this had a strong tendency to make the legislative body supreme is evident, since the power, if freely used, would overcome all opposition on the part of either the executive or the judiciary. Any combination of interests that could command a majority in both houses of Parliament could thus enforce its policy. This practically destroyed the executive check in the English Constitution and for that very reason the founders of our government rejected it. They clearly saw that to make the President's veto effective, he would have to be protected in its exercise. To have adopted the English practice and allowed a mere majority of the Senate to convict in impeachment cases would have given Congress power to destroy the President's veto by impeaching and removing from office any executive who dared to use it. This was guarded against by making, a two-thirds majority in the Senate necessary to convict any official impeached by the House. And since this two-thirds majority is one which in practice can not be obtained, the power to impeach may be regarded, like the power to amend, as practically non-existent. Only two convictions have been obtained since the Constitution was adopted. John Pickering, a Federal district judge, was convicted March 12, 1803, and removed from office, and at the outbreak of the Civil War a Federal district judge of Tennessee, West H. Humphreys, who joined the Confederacy without resigning, was convicted. William Blount was acquitted in 1798 on the ground that, as a United States senator, he was not a "civil officer" within the meaning of the impeachment provision of the Constitution, and so not liable to impeachment. Samuel Chase, Associate Justice of the United States Supreme Court, President Andrew Johnson, and Secretary of War, William W. Belknap, would have been convicted but for the extraordinary majority required in the Senate. The practical impossibility of removing a public official by means of impeachment proceedings has made the executive and the judicial veto thoroughly effective, since it has deprived Congress of all power to punish by removing from office those officials who thwart its purpose. It has made the President and the Supreme Court much stronger than the House of Representatives--a result which the framers of the Constitution no doubt desired. In addition to the President's qualified veto on laws about to be passed, which, as we have seen, amounts in practice to an unlimited negative, he has what may be called an absolute veto on their execution. This is the necessary consequence of his complete independence, taken in connection with his power of appointment and removal. Controlling the administrative arm of the government, he can execute the laws of Congress or not as he may see fit. He may even fail to enforce an act which he himself signed, inasmuch as his approval in a legislative capacity does not bar his subsequent disapproval as an executive. Of course, it does not follow that this power is openly and avowedly exercised. Usually it is not. An easier and more effective method is the one which obscures the real intention of the executive by a sham attempt at enforcement. It may be contended that the Constitution makes it his duty to enforce all laws without regard to his own views of their wisdom or expediency. This contention, however, does not appear to be borne out by the purpose of the Constitution itself. It was not the intention of the framers of that instrument to make the President a mere administrative agent of Congress, but rather to set him over against that body and make him in a large measure the judge of his own authority. If it be claimed that it is his duty to enforce all laws that have been regularly enacted, it must at the same time be conceded that the Constitution permits their non-enforcement, since it has given neither to Congress nor to the people any effective power to remove him for neglect of duty. Moreover, his oath of office does not expressly bind him to enforce the laws of Congress, but merely to "execute the office of President ... and preserve, protect, and defend the Constitution of the United States."[120] This omission can not be satisfactorily explained as a mere oversight. The Massachusetts constitution of 1780, from which the fathers copied the qualified veto power, required the governor to take an oath in which he obligated himself to perform the duties of his office "agreeably to the rules and regulations of the constitution and the laws of the commonwealth." There was no precedent in any then existing state constitution for expressly binding the executive in his oath of office to defend the Constitution without mentioning his duty to enforce the laws. It is a reasonable inference that the framers of the Constitution intended to impress the President with the belief that his obligation to defend the Constitution was more binding upon him than his duty to enforce the laws enacted by Congress. In the foregoing discussion it has been shown that political authority was unequally divided between the various branches of the government; to the extent that this was the case the framers of the Constitution did not adhere consistently to the theory of checks. But in this, as in other instances where they departed from precedents which they professed to be following, they were actuated by a desire to minimize the direct influence of the people. If the Constitution had been framed in complete accord with the doctrine of checks and balances, the lower house of Congress as the direct representative of the people would have been given a veto on the entire policy of the government. But this, as we have seen, was not done. The more important powers were placed under the exclusive control of the other branches of the government over which it was believed public opinion would have but little influence. This deprived the people of the unlimited negative to which they were entitled even according to the theory of checks. Richard Henry Lee did not greatly exaggerate then when he said: "The only check to be found in favor of the democratic principle, in this system, is the House of Representatives, which, I believe, may justly be called a mere shred or rag of representation."[121] Nor was Mason entirely mistaken when he referred to the House of Representatives as "the shadow only" and not "the substance of representation."[122] It may be thought, even though the Constitution does not give the House of Representatives a direct negative on all the important acts of the government, that it does so indirectly through its control over the purse. An examination of the system with reference to this question, however, reveals the fact that the control of the House over taxation and expenditure is narrowly limited. A revenue law is subject to no constitutional limitation, and when once enacted remains in force until repealed by subsequent legislation. Assuming that a revenue system has been established which is sufficient for the needs of the government, the House can exercise no further control over income. It can not repeal it, or modify it in any way without the consent of the President and Senate. Turning now to the matter of expenditure, we find that the Constitution allows permanent provision to be made for the needs of the government, with the single exception of the army, for the support of which no funds can be appropriated for a longer period than two years. The policy of permanent appropriations has not yet been applied to the full extent permitted by the Constitution, but it has been carried much further than a consistent adherence to the doctrine of popular control over the budget would warrant. The practice could easily be extended until every want of the government except the expenses of the army, even including the maintenance of the navy, had been provided for by permanent appropriations. And it may be added that with the increasing desire for stability which comes with the development of vast business interests, the tendency is strongly in that direction. Let us suppose that some political party, for the time being in control of the law-making power of the government, should extend the practice of making permanent appropriations to the extreme limit allowed by the Constitution. This would relieve the administration of all financial dependence upon public sentiment except in the management of the army. And if, as the framers of the Constitution contemplated, the President and the Senate should represent the minority, the administration might for years pursue a policy to which public opinion had come to be strongly opposed. For with the system once adopted its repeal could not be effected without the concurrence of all branches of the law-making authority. The President and Congress could, in anticipation of an adverse majority in the House, guard against the withdrawal of financial support from their policy by simply making permanent provision for their needs. Our present system would permit this to be done even after the party in power had been overwhelmingly defeated at the polls, since the second session of the old congress does not begin until after the members of the new House of Representatives have been elected.[123] This would tie the hands of any adverse popular majority in a succeeding congress and effectually deprive it of even a veto on the income and expenditure of the government, until such time as it should also gain control of the Presidency and the Senate. But this last could never have happened if the practical working of the Constitution had been what its framers intended. Whatever control, then, the majority may now exercise over taxation and public expenditure has thus been acquired less through any constitutional provisions intended to secure it, than in spite of those which seemingly made it impossible. Equally significant was the failure of the Convention to make any adequate provision for enforcing publicity. The Constitution says "a regular statement of the receipts and expenditures of public money shall be published from time to time," and also that "each House shall keep a journal of its proceedings, and from time to time publish the same, except such parts as may in their judgment required secrecy."[124] That these provisions were of little practical value is evident from the fact that they contain no definite statement as to when and how often the accounts and journals are to be published. The phrase _from time to time_ was susceptible of almost any interpretation that either house of Congress or the President might wish to give it, and could easily have been so construed as to justify a method of publication which gave the people but little information concerning the present state of public affairs. The framers of the Constitution did not believe that the management of the government was in any proper sense the people's business; yet they realized that the people themselves took a different view of the matter, which made some constitutional guarantee of publicity necessary. It was, however, the form rather than the substance of such a guarantee which the Constitution contained. Neither house of Congress is required by the Constitution to hold open sittings or publish its speeches and debates.[125] Until 1799 the Senate exercised its constitutional right to transact public business in secret; and during that period preserved no record of its debates. This policy did not win for it the confidence of the people, and until after it was in a measure abandoned, the Senate, notwithstanding the important powers conferred on it by the Constitution, was not a very influential body. To deny the right of the people to control the government leads naturally to denial of their right to criticise those who shape its policy; since if free and unrestricted discussion and even condemnation of official conduct were allowed, no system of minority rule could long survive. This was well understood in the Federal Convention. The members of that body saw that the constitutional right of public officials to disregard the wishes of the people was incompatible with the right of the latter to drag them before the bar of public opinion. Hence some limitation of the right to criticise public officials was necessary to safeguard and preserve their official independence. This seems to have been the purpose of the Constitution in providing with reference to members of Congress that "for any speech or debate in either House they shall not be questioned in any other place."[126] This provision may be traced to the English Bill of Rights where it was intended as a means of protecting members of Parliament against imprisonment and prosecution for opposing the arbitrary acts of the Crown. It was at first merely an assertion of the independence of the Lords and Commons as against the King, and a denial of the right of the latter to call them to account for anything said or done in their legislative capacity. But after it had accomplished its original purpose and the tyrannical power of the King had been overthrown, it was found to be serviceable in warding off attacks from another direction. It thus came about that the means devised and employed by Parliament to shield its members against intimidation and oppression at the hands of the King was later turned against the people; for Parliament in divesting the King of his irresponsible authority was desirous only of establishing its own supremacy. It jealously guarded its own prerogatives, claimed the right to govern independently, and just as formerly it had resisted the encroachments of royal authority, it now resented the efforts of the people to influence its policy by the publication and criticism of its proceedings. A standing order passed by the House of Commons in 1728 declared "that it is an indignity to, and a breach of, the privilege of this House for any person to presume to give in written or printed newspapers, any account or minute of the debates or other proceedings; that upon discovery of the authors, printers, or publishers of any such newspaper this House will proceed against the offenders with the utmost severity."[127] This was the attitude of Parliament down to 1771, when, after a prolonged and bitter struggle, the House of Commons was finally driven by the force of an overwhelming public sentiment to acquiesce in the publication of its proceedings. There was, however, a small minority in the House that opposed the policy of prosecuting the representatives of the press. The following extract from the Annual Register for 1771 describes the attitude of this minority. "Some gentlemen however did not rest their opposition on the points of decorum and prudence, but went so far as to deny the authority of the House in this respect, and said that it was an usurpation assumed in bad times, in the year 1641; that while their privileges and authority were used in defense of the rights of the people, against the violence of the prerogative, all men willingly joined in supporting them, and even their usurpations were considered as fresh securities to their independence; but now that they saw their own weapons converted to instruments of tyranny and oppression against themselves, they would oppose them with all their might, and, however they may fail in the first efforts, would finally prevail, and assuredly bring things back to their first principles. They also said that the practice of letting the constituents know the parliamentary proceedings of their representatives was founded upon the truest principles of the Constitution; and that even the publishing of supposed speeches was not a novel practice, and if precedent was a justification, could be traced to no less an authority than Lord Clarendon."[128] "In the early years of the colonial era the right of free speech was not always well guarded. There was frequent legislation, for example, against 'seditious utterances,' a term which might mean almost anything. In 1639 the Maryland assembly passed an act for 'determining enormous offences,' among which were included 'scandalous or contemptuous words or writings to the dishonor of the lord proprietarie or his lieutenant generall for the time being, or any of the council.' By a North Carolina act of 1715 seditious utterances against the government was made a criminal offence, and in 1724 Joseph Castleton, for malicious language against Governor Burrington and for other contemptuous remarks, was sentenced by the general court to stand in the pillory for two hours and on his knees to beg the governor's pardon. A New Jersey act of 1675 required that persons found guilty of resisting the authority of the governor or councillors 'either in words or actions ... by speaking contemptuously, reproachfully, or maliciously, of any of them,' should be liable to fine, banishment, or corporal punishment at the discretion of the court. In Massachusetts even during the eighteenth century the right of free political discussion was denied by the House of Representatives as well as by the royal governor, though often unsuccessfully."[129] "The general publication of parliamentary debates dates only from the American Revolution, and even then it was still considered a technical breach of privilege. "The American colonies followed the practice of the parent country. Even the laws were not at first published for general circulation, and it seemed to be thought desirable by the magistrates to keep the people in ignorance of the precise boundary between that which was lawful and that which was prohibited, as more likely to avoid all doubtful actions.... "The public bodies of the united nation did not at once invite publicity to their deliberations. The Constitutional Convention of 1787 sat with closed doors, and although imperfect reports of the debates have since been published, the injunction of secrecy upon its members was never removed. The Senate for a time followed this example, and the first open debate was had in 1793, on the occasion of the controversy over the right of Mr. Gallatin to a seat in that body. The House of Representatives sat with open doors from the first, tolerating the presence of reporters,--over whose admission, however, the Speaker assumed control,--and refusing in 1796 the pittance of two thousand dollars for full publication of its debates. "It must be evident from these historical facts that liberty of the press, as now understood and enjoyed, is of very recent origin."[130] Both the original purpose of this parliamentary privilege and its subsequent abuse not only in England but also in the Colonies, were facts well known by those who framed the Constitution. There was no King here, from whose arbitrary acts Congress would need to be protected, but there was a power which the framers of the Constitution regarded as no less tyrannical and fully as much to be feared--the power of the people as represented by the numerical majority. How to guard against this new species of tyranny was the problem that confronted them. The majority was just as impatient of restraint, just as eager to brush aside all opposition as king or aristocracy had ever been in the past. Taking this view of the matter, it was but natural that they should seek to protect Congress against the people as Parliament had formerly been protected against the Crown. For exactly the same reason as we have seen, they made the judges independent of the people as they had been made independent of the King in England. In no other way was it possible to limit the power of the majority. That this provision concerning freedom of speech and debate in the legislative body was not regarded as especially important during the Revolutionary period is shown by its absence from most of the early state constitutions. When the Federal Constitution was framed only three of the original states[131] had adopted constitutions containing such a provision. There was, as a matter of fact, no real need for it in the state constitutions of that time. The controlling influence exerted by the legislature in the state government, and the dependence of the courts upon that body, precluded the possibility of any abuse of their powers in this direction. The Articles of Confederation contained the provision that "Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress."[132] This was designed to protect members of Congress against prosecution in the state courts. Here, as in the English Bill of Rights and in the state constitutions containing a similar provision, reference is made in express terms to prosecution in the courts. The framers of the Constitution, however, left out all reference to the courts. If, as constitutional writers have generally assumed, the framers of the Constitution intended by this provision to protect members of Congress against prosecution in the courts, it is difficult to understand why they should have omitted what had been the main feature and purpose of this provision, not only in the original Bill of Rights, but also in the state constitutions copying it and in the Articles of Confederation. If what they had in mind was the danger of prosecution in the state or Federal courts, why should they have changed completely the wording of this provision by omitting all reference to the very danger which they wished to guard against? The checks thus far described were intended as a substitute for king and aristocracy; but to make the Constitution acceptable to the people, additional checks were required which the English government did not contain. The division of authority in the latter was solely between different classes or orders, each of which was supposed to represent interests co-extensive with the realm. But while the power of each class was thus limited, their joint and combined action was subject to no constitutional check or limitation whatever. Any policy upon which they agreed could be enforced in any part of the realm, since the Constitution, recognizing no local interests, gave no political subdivision a negative on the acts of the whole. The government of England, then, was purely _national_ as opposed to _federal_, that is to say the general government was supreme in all respects and the local government merely its creature. This was the type of government for which Hamilton contended and which a majority of the delegates in the Federal Convention really favored. But the difficulty of securing the adoption of a Constitution framed on this plan made it impracticable. To merge the separate states in a general government possessing unlimited authority would place all local interests at the mercy of what the people regarded as virtually a foreign power. Practical considerations, then, required that the Constitution should in appearance at least conform to the _federal_ rather than to the _national_ type. Accordingly the powers of government were divided into two classes, one embracing only those of an admittedly general character, which were enumerated and delegated to the general government, while the rest were left in the possession of the states. In form and appearance the general government and the governments of the various states were coordinate and supplementary, each being supreme and sovereign within its respective sphere. By this arrangement any appearance of subordination on the part of the state governments was carefully avoided; and since the state retained sovereign authority within the sphere assigned to it by the Constitution, the protection of local interests was thereby guaranteed. This understanding of the Constitution seems to have been encouraged by those who desired its adoption and was undoubtedly the only interpretation which would have found favor with the people generally. Moreover, it was a perfectly natural and logical development of the theory of checks. If the President, Senate, House of Representatives and the Supreme Court were coordinate branches of the general government, and each therefore a check on the authority of the others, a like division of authority between the general government as a whole on the one hand, and the states on the other, must of necessity imply a defensive power in the state to prevent encroachment on the authority reserved to it. And since the government was _federal_ and not _national_, and since the state government was coordinate with and not subordinate to the general government, the conclusion was inevitable that the former was a check on the latter in exactly the same way that each branch of the general government was a check on the others. This view of the Constitution while allowed to go unchallenged for the time being to secure its adoption by the states, was not accepted, however, by those who framed it. For although in outward appearance the Constitution did not provide for a national government, it at least contained the germs out of which a national government might in time be developed. The complete supremacy of the general government was one important result which the members of the Convention desired to bring about. Several plans were proposed by which this supremacy should be expressly recognized in the Constitution. Both Randolph and Charles Pinckney favored giving a negative on state laws to Congress.[133] Madison suggested giving it to the Senate. Hamilton, as we have seen, proposed giving an absolute veto to the governors of the various states, who were to be appointed by the President. According to another plan this power was to be given jointly to the President and the judges of the Supreme Court. All of these proposals to give the general government in express terms the power to annul state laws were finally rejected by the Convention, no doubt for the reason that they indicated too clearly their intention to subordinate the state governments. But while declining to confer this power in express terms, it was not their intention to withhold it. As in the case of the judicial veto on congressional legislation, they relied upon control over the Constitution after its adoption to accomplish their end. The omission from the Constitution of any provision which clearly and unequivocally defined the relation of the general government to the governments of the various states was not a mere oversight. The members of the Convention evidently thought that to ensure the acceptance of the Constitution, it was necessary to submit it in a form least likely to excite the opposition of the states. They expected by controlling its interpretation to be able after its adoption to mold it into a shape more in accord with their own views. The choice of this method, though the only one by which it was possible to attain their end, involved consequences more serious and far-reaching than they imagined. It paved the way for a constitutional struggle which lasted for three-quarters of a century and finally convulsed the country in the greatest civil war of modern times. Had the Constitution in so many words expressly declared that the Federal judiciary should have the power to annul state laws, or had it given this power to some other branch of the Federal government in accordance with some one of the suggestions above mentioned, and had it at the same time expressly withheld from the states the power to negative acts of Congress, there would have been no room for doubt that the general government was the final and exclusive judge in all cases of conflict between Federal and state authority. Such a provision would have left no room for the doctrine of state rights, or its corollary--the power of a state to nullify a Federal law. It would have settled the question of Federal supremacy beyond the possibility of controversy by relegating the states to a strictly subordinate place in our political system. But inasmuch as the Constitution contained no provision of this character it left the states in a position to defend their claim to coordinate rank with the general government. The adoption of the Constitution was merely the first step in this program of political reconstruction. To carry through to a successful issue the work undertaken by the Federal Convention, it was necessary that the same influences that dominated the latter should also control the new government by which the Constitution was to be interpreted and applied. How well they succeeded may be seen in the impress left upon our system by the twelve years of Federalist rule which followed its adoption. During this period the Constitution was in the hands of those who were in full sympathy with the purpose of its framers, and who sought to complete the work which they had begun. In shaping the policy of the government during this period the influence of Hamilton was even more pronounced than it had been in the Federal Convention. As Secretary of the Treasury he proposed and brought about the adoption of a financial policy in harmony with his political views. Believing that the government must have the confidence of the conservative and well-to-do classes, he framed a policy which was calculated to gain their support by appealing to their material interests. The assumption by the general government of the state debts incurred during the Revolutionary war was designed and had the effect of detaching the creditor class from dependence upon the governments of the various states and allying them to the general government. The protective tariff system also had far-reaching political significance. It was expected to develop an influential manufacturing class who would look to the general government as the source of their prosperity, and who would therefore support its authority as against that of the states. To unite the moneyed interests and identify them with the general government was one of the reasons for chartering the bank of the United States. The internal revenue system which enabled the general government to place its officials in every community and make its authority directly felt throughout all the states was a political as well as a financial measure. It was prompted partly by the desire to appropriate this field of taxation before it was laid hold of by the states and partly by the desire to accustom the people to the exercise of Federal authority. All these measures which were formulated by Hamilton and carried through largely by his influence were intended to lay a solid basis for the development of national as opposed to state authority. It was the purpose of the Constitution as we have seen to establish the supremacy of the so-called upper class. To consolidate its various elements and bring the government under their control was the aim of the Federalist party. That such a policy should have aroused much popular opposition and provoked bitter criticism was to be expected. Criticism, however, was especially irritating to those who accepted the Federalist theory of government. For if the few had a right to rule the many, then the latter, as a matter of course, ought to treat the former with respect; since otherwise the power and influence of the minority might be overthrown. The Alien and Sedition laws by which the governing class sought to repress criticism were the logical culmination of this movement to limit the power of the majority. This attempt, however, to muzzle the press and overthrow the right of free speech instead of silencing the opposition only strengthened and intensified it. It merely augmented the rising tide of popular disapproval which was soon to overwhelm the Federalist party. The Constitution, as we have seen, did not expressly subordinate the states. Although framed by those who wished to make the general government supreme, it contained no provision which could not be so construed as to harmonize with the widely accepted doctrine of state rights. It was represented by its framers and understood by the people generally as dividing sovereignty between the general government on the one hand and the states on the other. Within the province assigned to the state, it was to be supreme, which would naturally seem to imply adequate constitutional power in the state to defend itself against federal aggression. This view of the Constitution, if not actually encouraged, was allowed to go unchallenged in order not to endanger its adoption. The Constitution is and was intended to be rigid only in the sense that it effectually limits the power of the majority. The founders of our government were not averse to such changes in the system which they established as would promote or at least not interfere with their main purpose--the protection of the minority against the majority. Indeed, they intended that the Constitution as framed should be modified, amended and gradually molded by judicial interpretation into the form which they desired to give it, but which the necessity of minimizing popular opposition prevented them from accomplishing at the outset. Amendment by judicial interpretation was merely a means of conferring indirectly on the minority a power which the Constitution expressly denied to the majority. No hint of this method of minority amendment, however, was contained in the Constitution itself. But, on the contrary, any such view of the Constitution would have been negatived by the general theory of checks and balances which, consistently applied, would limit the power of the minority as well as that of the majority. It was not reasonable to suppose that the Constitution contemplated placing in the hands of the minority a power which it was so careful to withold from the majority. In fact, the language of the Constitution warranted the belief that it was intended as a means of checking the general government itself by protecting the states in the exercise of all those powers not expressly denied to them. And since the Constitution, as we have seen, merely marked off the limits of federal and state jurisdiction, without specifying how the general government on the one hand, or the state government on the other, was to be kept within the territory assigned to it, it was natural to suppose that it contemplated giving to each the same means of protecting itself against the encroachments of the other. Accordingly, when Congress appeared to overstep the limits which the Constitution set to its authority, the states naturally looked for some means of making the checks imposed upon the general government effective. True, the Constitution itself did not specify how this was to be done; but neither could one find in it any provision for enforcing the limitations on the authority of the states. The general government, however, had supplied itself with the means of self-protection by calling into existence the veto power of the Federal judiciary. This made the checks upon the authority of the states operative. But how were those imposed by the Constitution on the general government itself to be enforced? Not by the Federal government or any of its organs, since this would allow it to interpret the Constitution to suit itself. If the general government should have the right to interpret and enforce the constitutional limitations on the powers of the states, it would for a like reason follow that the states should interpret and enforce the constitutional limitations on the authority of the general government itself. To carry out in good faith what appeared to be the purpose of the Constitution, _i.e._, to limit the authority of the general government as well as that of the states, it would seem to be necessary to make each the judge of the other's powers. It would devolve then on the state governments to keep the general government within the bounds which the Constitution set to its authority. This could be accomplished, however, in no other way than by a veto on such acts of the general government as, in the opinion of the state, exceeded its constitutional authority. Those who believed in a federal as opposed to a national government and who therefore wished to enforce the constitutional checks on the general government, were irresistibly impelled toward the doctrine of nullification as the sole means of protecting the rights of the states. As Von Holst says, "Calhoun and his disciples were not the authors of the doctrine of nullification and secession. That question is as old as the Constitution itself, and has always been a living one, even when it has not been one of life and death. Its roots lay in the actual circumstances of the time, and the Constitution was the living expression of these actual circumstances."[134] Madison, in _The Federalist_, refers in a vague and indefinite manner to the power of a state to oppose an unjustifiable act of the Federal government. "Should an unwarrantable measure of the Federal government," he says, "be unpopular in particular states ... the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance, and perhaps refusal, to co-operate with the officers of the union; the frowns of the executive magistracy of the state; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any state, difficulties not to be despised; would form in a large state, very serious impediments; and where the sentiments of several adjoining states happened to be in unison, would present obstructions which the Federal government would hardly be willing to encounter."[135] Again he says, "The state government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other."[136] It is doubtful whether Madison, in writing the passages above quoted, had in mind any thing more than a general policy of opposition and obstruction on the part of the states. He certainly intended, however, to convey the idea that under the proposed Constitution the states would have no difficulty in defending their constitutional rights against any attempted usurpation at the hands of the Federal government. We can trace the gradual development of this idea of state resistance to Federal authority until it finally assumes a definite form in the doctrine of nullification. "A resolution [in the Maryland legislature] declaring the independence of the state governments to be jeopardized by the assumption of the state debts by the Union was rejected only by the casting vote of the speaker. In Virginia the two houses of the legislature sent a joint memorial to Congress. They expressed the hope that the funding act would be reconsidered and that the law providing for the assumption of the state debts would be repealed. A change in the present form of the government of the union, pregnant with disaster, would, it was said, be the presumptive consequence of the last act named, which the house of delegates had formally declared to be in violation of the Constitution of the United States."[137] The general assembly of Virginia in 1798 adopted resolutions declaring that it viewed "the powers of the Federal government ... as limited by the plain sense and intention of [the Constitution] ... and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted, ... the states ... have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authority, rights, and liberties appertaining to them." These resolutions were drawn by Madison who had now come to oppose the strong centralizing policy of the Federalists. A more explicit statement of this doctrine is to be found in the Kentucky Resolutions of 1798 which declared "that the several states composing the United States of America are not united on the principle of unlimited submission to their general government; ... and that whenever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact among parties having no common judge, _each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress_." The Kentucky resolutions of 1799 go one step farther and give definite expression to the doctrine of nullification. They declare "that the several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of the infraction; and, _that a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy_." The first clear and unequivocal statement of the doctrine of nullification may be traced to Jefferson. In the original draft of the Kentucky resolutions of 1798, which he wrote, it is asserted that where the Federal government assumes powers "which have not been delegated, a nullification of the act is the rightful remedy; that every state has a natural right in cases not within the compact (_casus non foederis_) to nullify of their own authority, all assumptions of power by others within their limits."[138] This was omitted, however, from the resolutions as finally adopted, although included in substance, as we have seen, in the Kentucky resolutions of 1799. Jefferson's authorship of the original draft of the Kentucky resolutions of 1798 is made the basis of Von Holst's contention that he was the father of the doctrine of nullification. This, however, is something of an exaggeration. He is more accurate when he refers to the doctrine as being as old as the Constitution itself and the outgrowth of the circumstances of the time. The prevalent conception of the state as a check upon the Federal government derived support, as we have seen, from the efforts of the framers of the Constitution themselves to give it an interpretation that would remove as far as possible the obstacles to its ratification by allaying the fears and jealousy of the states. The idea that the state government could oppose and resist an unconstitutional exercise of authority by the Federal government was widely accepted as a general principle, although little attention had been given to the practical application of the doctrine. Jefferson merely gave definite form to what had been a more or less vague conception by showing how the constitutional checks upon the Federal government could be made effective. The best statement of this doctrine, however, is to be found in the works of John C. Calhoun, whose Disquisition on Government and Discourse on the Constitution of the United States are a masterly defense of the system of checks and balances. He had no sympathy with what would now be called popular government. His point of view was essentially aristocratic, and he frankly avowed it. He recognized the fact that under the existing social organization the interests of all classes are not the same; that there is a continual struggle between them; and that any interest or combination of interests obtaining control of the government will seek their own welfare at the expense of the rest. This, he claimed, made it necessary to so organize the government as to give the minority the means of self-protection. To give to the minority this constitutional power would tend to prevent the selfish struggle to obtain possession of the government, since it would deprive the majority of all power to aggrandize themselves at the expense of the minority. The very essence of constitutional government, according to his view, was the protection afforded to the minority through the limitation of the power of the majority. To accomplish the true end of constitutional government, which is the limitation of the power of the numerical majority, it is necessary, he contended, that the various classes or interests should be separately represented, and that each through its proper organ should have a veto on the acts of the others. In a government so organized no measure could be enacted into law and no policy enforced, unless it had received the assent of each element recognized in the Constitution. This method of taking the sense of the community, which required the concurrence of its several parts, he termed that of the concurrent majority. This principle of class representation, he maintained, was fundamental in the American Constitution, which recognized for certain purposes the numerical majority as one of its elements, but only for certain purposes. For he tells us, and correctly, that "the numerical majority is, strictly speaking, excluded, even as one of its elements."[139] In support of this statement he undertakes to show that the numerical majority could not even prevent the amendment of the Constitution, since through a combination of the smaller states an amendment desired by the minority could be forced through in opposition to the wishes of the majority. He might have added that it was the intention of those who framed our government to allow the minority a free hand in amending by the method of constitutional interpretation; and also that they intended to deny to the numerical majority a veto on treaties and appointments. This refusal to recognize the numerical majority even as one of the coordinate elements in the government was as hereinbefore shown inconsistent with the doctrine of checks, and is to be explained on the theory that they wished to subordinate the democratic element in the Constitution. Calhoun argued that the growth of political parties had broken down our system of constitutional checks. The Constitution as originally adopted made no mention of, and allowed no place for these voluntary political organizations. In fact, the purpose of the political party was diametrically opposed to and subversive of all that was fundamental in the Constitution itself, since it aimed at nothing less than the complete destruction of the system of checks by bringing every branch of the government under its control. To the extent that it had achieved its purpose, it had consolidated the powers of the general government and brought them, he contended, under the direct control of the numerical majority, which was the very thing that the framers of the Constitution wished to guard against. The complete control which the numerical majority had thus obtained over the Federal government made it supremely important that all constitutional power vested in the several states to resist Federal aggression should be actively employed. That the states had the power under the Constitution to check the general government when it attempted to overstep the limits set to its authority was necessarily implied in the fact that our system of government was federal and not national. His argument proceeded on the theory encouraged by the framers of the Constitution that the general government and the state governments were coordinate. "The idea of coordinates," he tells us, "excludes that of superior and subordinate, and necessarily implies that of equality. But to give either the right, not only to judge of the extent of its own powers, but, also, of that of its coordinate, and to enforce its decision against it, would be, not only to destroy the equality between them, but to deprive one of an attribute--appertaining to all governments--to judge, in the first instance, of the extent of its powers. The effect would be to raise one from an equal to a superior, and to reduce the other from an equal to a subordinate."[140] From this it would follow that neither should have the exclusive right to judge of its own powers--that each should have a negative on the acts of the others. That this was the intention of the framers of the Constitution he argues from the fact that all efforts in the Convention to give the general government a negative on the acts of the states were unsuccessful. The efforts to confer this power, he contends, were made because it was seen that in the absence of such a provision the states would have a negative on the acts of the general government. The failure of these efforts in the Convention was due, he claims, to the fact that the members of that body wished to make the general government and the state governments coordinate, instead of subordinating the latter to the former as the advocates of a national government desired. The fact upon which Calhoun based this contention would seem to justify his conclusion; but if we consult the debates which took place in that body, it is easily seen that the refusal of the Convention to incorporate such a provision in the Constitution can not be ascribed to any hostility on the part of that body to national government. In fact, as hereinbefore shown, it was for purely practical reasons that they rejected all proposals which contemplated the recognition in the Constitution itself of the supremacy of the general government. While declining to allow a provision of this character to be incorporated in the Constitution, they by no means disapproved of a strong supreme central government, but merely adopted a less direct and therefore easier method of attaining their end. While Calhoun maintained that in order to make the limitations on the authority of the general government effective it was necessary that a state should have a veto on Federal laws, he did not contend that the verdict of a state should be final. It would still be possible for the general government to override the veto of a state by procuring a constitutional amendment which would remove all doubt as to its right to exercise the power in question. This method of appeal, he argued, was always open to the general government, since it represented and was in the hands of the numerical majority. This would be true, however, only when the party in power had the requisite two-thirds majority in both houses of Congress, or at least controlled the legislatures in two-thirds of the states. Otherwise its control of the general government would not enable it to propose the desired constitutional amendment. With this qualification Calhoun's contention was correct. On the other hand the state could not defend itself against Federal aggression, since, belonging to the minority, it would have no means of compelling the submission of a constitutional amendment involving the point in dispute. The effect of a state veto on an act of Congress would be to compel the latter to choose between abandoning the law in question as unconstitutional and appealing to the constitution-making power in defense of its claim. If it chose the latter alternative and succeeded in having its authority supported by an appropriate constitutional amendment, there was nothing for the state to do but submit, provided that the amendment in question was one clearly within the scope of the amending power. If, as Calhoun assumed, it was the purpose of the Constitution to withhold from a mere majority in control of the general government the power to enact and enforce unconstitutional legislation, the veto of a state would seem to be the only means by which the constitutional rights of a minority of the states could be protected. Calhoun did not question the right of the Supreme Court of the United States to declare an act of Congress null and void, or its right to pass judgment upon the Constitution or the laws of a state when they were attacked as in conflict with the Federal Constitution in a case before it. This right, he contended, belonged to all courts whether federal or state. A decision of the Supreme Court of the United States adverse to the constitution or law of a state was, however, he maintained, binding only on the general government itself and the parties to the suit. As against the state it had no power to enforce its decision. His entire argument rests upon the assumption that the Federal and state governments are co-equal and not superior and subordinate. This line of argument naturally led to the conclusion that the Federal and state courts were coordinate. It was perfectly natural for the advocate of state rights to take this view of the matter. Moreover there was nothing in the Constitution which expressly contradicted it. The framers of that instrument, as hereinbefore shown, did not wish to make an open attack on the generally accepted doctrine of state sovereignty before the Constitution was adopted. Their purpose was fully disclosed only after they had obtained control of the new government under the Constitution. To carry out their plan of subordinating the states, it was necessary to establish the supremacy of the Federal judiciary. This was accomplished by an act of Congress[141] which provided that "a final judgment or decree in any suit in the highest court ... of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where is drawn in question the construction ... of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of said Constitution, treaty, statute, or Commission, may be re-examined, and reversed or affirmed in the Supreme Court of the United States upon a writ of error." This act, while expressly conferring upon the Supreme Court of the United States the power to veto a state law, at the same time denied to a state court the right to treat as unconstitutional a statute, treaty, or authority exercised under the general government. The question might properly be asked why this provision was not incorporated in the Constitution itself. Why did not the framers of that document clearly define the relation of the Federal to the state courts? To have included the substance of this act in the Constitution as submitted to the states, would have precluded the possibility of any future controversy concerning the relation of the Federal to the state courts. From the point of view of practical politics, however, there was one unanswerable argument against this plan. It would have clearly indicated the intention of the framers of the Constitution, but in doing so, it would for that very reason have aroused opposition which it would have been impossible to overcome. This is why the matter of defining the relation of the Federal to the state courts was deferred until after the Constitution had been ratified by the states. They chose the only practicable means of accomplishing their purpose. With all branches of the Federal government under their control, they were able to enact a law which virtually amended the Constitution. Calhoun argues that in passing this act Congress exceeded the powers granted to it by the Constitution. What he fails to recognize, however, is the fact that this measure, although at variance with the interpretation placed upon the Constitution by the people generally, was, nevertheless, in entire harmony with the general purpose of its framers and necessary to carry that purpose into effect. The view of the American Constitution herein presented may not be familiar to the average reader of our political literature. For notwithstanding the overwhelming proof of the aristocratic origin of our constitutional arrangements accessible to the unbiassed student, the notion has been sedulously cultivated that our general government was based on the theory of majority rule. Unfounded as an analysis of our political institutions shows this belief to be, it has by dint of constant repetition come to be widely accepted. It is beyond question that the Constitution was not so regarded by the people at the beginning of our national life. How, then, was this change in the attitude of the public brought about? There has doubtless been more than one influence that has contributed to this result. The abundant natural resources of the country and the material prosperity of the people are a factor that cannot be ignored. To these must in a measure be ascribed the uncritical attitude of mind, the prevailing indifference to political conditions, and the almost universal optimism which have characterized the American people. This lack of general attention to and interest in the more serious and profound questions of government has been favorable to the inculcation and acceptance of ideas of the system utterly at variance with its true character. Still, with all due allowance for these favoring conditions, it is hard to find a satisfactory explanation of the process by which the worshipers of democracy came to deify an undemocratic constitution. The desire of the conservative classes to preserve and perpetuate the system by presenting it in the guise of democracy, and their influence upon the political thought of the people generally must be regarded as the chief factor in bringing about this extraordinary change in public opinion. Hostile criticism of the Constitution soon "gave place to an undiscriminating and almost blind worship of its principles ... and criticism was estopped.... The divine right of kings never ran a more prosperous course than did this unquestioned prerogative of the Constitution to receive universal homage. The conviction that our institutions were the best in the world, nay more, the model to which all civilized states must sooner or later conform, could not be laughed out of us by foreign critics, nor shaken out of us by the roughest jars of the system."[142] CHAPTER VII UNDEMOCRATIC DEVELOPMENT It has been shown that the main purpose of the Constitution was to limit the power of the people. The recognition of this fact enables us to understand much of the subsequent development of our political institutions--a development for which the generally accepted theory of our system affords no adequate explanation. The erroneous view of the Constitution so generally inculcated has thus far misled the public as to the true source of our political evils. It would indeed be strange if some of the abuses incident to every form of minority rule had not made their appearance under the operation of a system such as has been described. Where the influence of public opinion has been so restricted, it would be but reasonable to expect that the practical working of the government would reflect something of the spirit of the Constitution itself. As a consequence of these limitations originally placed upon the power of the people, the development of our system has not been wholly in the direction of democracy. The constitutional authority conferred upon the minority has exerted a far-reaching influence upon the growth of our political institutions. The natural effect of subordinating the democratic element would be to render its influence more feeble as the system developed. That this has not been a purely imaginary danger may be easily shown. The Constitution expressly gave to the qualified voters of the various states the right to control the House of Representatives. It was because of this fact, as explained in the preceding chapter, that this body was subordinated in our scheme of government. Even the most perfect control over this branch would have given the people no positive control over the government as a whole. At the most, it conceded to them merely a negative on a part of the acts and policy of the government. Yet popular control over this branch of the government has become less and less effective as our political system has developed. The Constitution provides that "the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the place of choosing senators."[143] It also provides that "Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day." It also requires that the members of the House of Representatives shall be elected every second year; but as originally adopted it does not specify when their term of office shall begin. After the ratification of the Constitution the Congress of the Confederation on September 13, 1788, designated March 4, 1789, as the time for commencing proceedings under the new régime. This made the term of office of President, Senators, and Representatives begin on that date. An act of Congress, March 1, 1792, provided that the term of office of President should "in all cases, commence on the fourth day of March next succeeding the day on which the votes of the electors shall have been given." This date was recognized as the beginning of the President's term of office by the Twelfth Amendment to the Constitution, which went into effect in 1804. By implication this amendment makes the term of representatives begin on the fourth of March of each odd year. Congress, exercising the power vested in it by the Constitution to regulate Federal elections, enacted a law bearing date of February 2, 1872, which requires the election of representatives to be held on the Tuesday next after the first Monday in November of each even year, beginning with the year 1876. By act of March 3, 1875, this was modified so as not to apply to any state whose constitution would have to be amended before the day fixed for electing state officers could be changed in conformity with this provision.[144] Congress has no power to change the date on which the term of office of a representative begins; but it does have authority to change the time of electing the House of Representatives, and also to determine when its own sessions shall begin, subject to the constitutional limitation that it shall meet at least once each year. Under the law as it now stands the members of a newly elected House of Representatives do not meet in regular session until thirteen months after their election. Moreover, the second regular session does not begin until after the succeeding Congress has been elected. The evils of this arrangement are thus described by a member of the House: "The lower branch of Congress should at the earliest practicable time enact the principles of the majority of the people as expressed in the election of each Congress. That is why the Constitution requires the election of a new Congress every two years. If it were not to reflect the sentiments of the people then frequent elections would have no meaning or purpose. Any evasion of that rule is subversive of the fundamental principle of our government that the majority shall rule. No other government in the world has its legislative body convene so long after the expression of the people.... "As an election often changes the political complexion of a Congress, under the present law, many times we have the injustice of a Congress that has been repudiated by the people enacting laws for the people diametrically opposed to the last expression of the people. Such a condition is an outrage on the rights of the majority.... "Under the present law a representative in Congress who has been turned down by the people legislates for that people in the second regular session.... "A man who has been defeated for re-election is not in a fit frame of mind to legislate for his people. There is a sting in defeat that tends to engender the feeling of resentment which often finds expression in the vote of such members against wholesome legislation. That same feeling often produces such a want of interest in proceedings as to cause the members to be absent nearly all the second session.... "It is then that some are open to propositions which they would never think of entertaining if they were to go before the people for re-election. It is then that the attorneyship of some corporation is often tendered and a vote is afterward found in the record in favor of legislation of a general or special character favoring the corporation."[145] To appreciate the magnitude of the evils above described, it is necessary to remember that upon the average only about one-half of the members of one Congress are elected to the succeeding Congress. This large number is, therefore, influenced during the second regular session neither by the hope of re-election nor the fear of defeat. Under these circumstances it is not surprising that the second regular session should be notoriously favorable to corporation measures. That Congress has not attempted to remedy this evil is striking proof of its indifference to the wishes of the people. Otherwise it would have so employed the power which it possesses to perfect its organization, as to ensure the most prompt and complete expression of public opinion in legislation possible under our constitutional arrangements. Having the power to change both the time of electing a Congress and the beginning of its sessions, it could easily remedy the evils described. Both sessions of a Congress could be held before the succeeding Congress is elected. This could be accomplished by having Congress convene, as advocated by the writer of the article above mentioned, for the first regular session on the Monday following the fourth of March next after the election, and for the second regular session on the first Monday after January first of the following year. In this case the second regular session would doubtless come to an end before the fall election. Some such adjustment is required to give the people anything like adequate control over the House of Representatives during the second regular session. The present arrangement which makes the House of Representatives largely an irresponsible body, while not provided for or perhaps even contemplated by the framers of the Constitution, is nevertheless the logical outcome of their plan to throttle the power of the majority. But although in harmony with the general purpose and spirit of the Constitution, it is a flagrant violation of the basic principle of popular government.[146] This tendency may be still more clearly seen in the growth of the committee system by which the division of power and its consequence, political irresponsibility, have been carried much farther than the Constitution contemplated, especially in the organization of the House, of Representatives. No standing committees were provided for by the Constitution and few were established by the House during the early years of its existence. The system once introduced, however, has gradually developed until the House now has more than fifty-five of these committees. Every legislative proposal must under the rules after its second reading be referred to the committee having jurisdiction over that particular branch of legislation. Theoretically, any member has a right to introduce any bill whatever. But as it must be referred to the proper committee and be reported by it to the House before the latter can discuss and adopt or reject it, it is evident that the right to initiate legislation has in effect been taken from the individual members and vested in the various standing committees. Under this method of procedure no proposed legislation can be enacted by the House without the consent of the committee having that particular branch of legislation in charge. The fact that a measure must be referred to a committee does not imply that that committee is obliged to report it back to the House. This the committee will, of course, do if the proposed bill is one which it wishes to have passed. But if it views the proposed legislation with disfavor, it may revise it so as to make it conform to its own wishes, or it may report it so late in the session as to prevent its consideration by the House, or it may neglect to report it altogether. This virtually gives a small body of men constituting a committee a veto on every legislative proposal. The extent to which this system diminishes the responsibility of the House can not be fully appreciated without bearing in mind the manner of appointment and composition of the committees. The Constitution provides that "the House of Representatives shall choose their speaker and other officers,"[147] but it makes no mention of the speaker's powers. The right to appoint the committees is not conferred on the speaker by the Constitution. The extent and character of the powers exercised by that official are determined very largely by the rules and usages of the House. This is the source of his power to appoint the chairman and other members of the various standing committees. The speaker is elected at the beginning of each Congress and retains his office during the life of that body. The same is now true of the standing committees which he appoints, though previous to 1861 they were appointed for the session only. The speaker is, of course, a member of the dominant party in the House, and is expected to use the powers and prerogatives of his office to advance in all reasonable ways the interests of the party which he represents. The selection of committees which he makes is naturally enough influenced by various considerations of a political and personal nature. It is largely determined by the influences to which he owes his elevation to the speakership. In return for the support of influential members in his own party certain important chairmanships have been promised in advance. And even where no definite pledges have been made he must use the appointive power in a manner that will be acceptable to his party. This does not always prevent him, however, from exercising enough freedom in making up the committees to insure him a large measure of control over legislation. All the chairmanships and a majority of the places on each committee are given to the members of his own party. As the speaker's right to appoint does not carry with it the power to remove, he has no control over a committee after it is appointed. The committees, as a matter of fact, are in no true sense responsible either to the speaker or to the House itself, since once appointed they can do as they please. They are in fact just so many small, independent, irresponsible bodies, each controlling in its own way and from motives known only to itself the particular branch of legislation assigned to it. The only semblance of responsibility attaching to the committee is found in the party affiliation of the majority of its members with the majority in the House. But ineffectual and intangible as this is, it is rendered even more so by the fact that the opposition party is also represented on each committee. This allows the dominant party to escape responsibility, since it can claim that its failure to satisfy the popular demand has been due to the opposition of the minority in the various committees, which has made concession and compromise necessary. "The deliberations of committees," as Bryce says, "are usually secret. Evidence is frequently taken with open doors, but the newspapers do not report it, unless the matter excite public interest; and even the decisions arrived at are often noticed in the briefest way. It is out of order to canvass the proceedings of a committee in the House until they have been formally reported to it; and the report submitted does not usually state how the members have voted, or contain more than a very curt outline of what has passed. No member speaking in the House is entitled to reveal anything further."[148] A system better adapted to the purposes of the lobbyist could not be devised. "It gives facilities for the exercise of underhand and even corrupt influence. In a small committee the voice of each member is well worth securing, and may be secured with little danger of a public scandal. The press can not, even when the doors of committee rooms stand open, report the proceedings of fifty bodies; the eye of the nation can not follow and mark what goes on within them; while the subsequent proceedings in the House are too hurried to permit a ripping up there of suspicious bargains struck in the purlieus of the Capital, and fulfilled by votes given in a committee."[149] A system which puts the power to control legislation in the hands of these small independent bodies and at the same time shields them so largely against publicity affords ample opportunity for railway and other corporate interests to exercise a controlling influence upon legislation. This subdivision of the legislative power of the House and its distribution among many small, irresponsible bodies precludes the possibility of any effective party control over legislation. And since the majority in the House can not control its own agents there can be no effective party responsibility. To ensure responsibility the party in the majority must act as a unit and be opposed by an active and united minority. But our committee system disintegrates both the majority and the minority. Another practice which has augmented the authority and at the same time diminished the responsibility of the committees is the hurried manner in which the House disposes of the various measures that come before it. The late Senator Hoar has estimated that the entire time which the House allows for this purpose during the two sessions which make up the life of a Congress "gives an average of no more than two hours apiece to the committees of the House to report upon, debate, and dispose of all the subjects of general legislation committed to their charge. From this time is taken the time consumed in reading the bill, and in calling the yeas and nays, which may be ordered by one-fifth of the members present, and which require forty minutes for a single roll-call."[150] Moreover, the member "who reports the bill dictates how long the debate shall last, who shall speak on each side, and whether any and what amendments shall be offered. Any member fit to be intrusted with the charge of an important measure would be deemed guilty of an inexcusable blunder if he surrendered the floor which the usages of the House assign to his control for an hour, without demanding the previous question."[151] Nothing more would seem to be necessary to give the committee control of the situation. True the House may reject the bill which it submits, but the committee may easily prevent the House from voting upon a measure which a majority of that body desires to enact. As there are many committees and the time which the House can give to the consideration of their reports is limited, it naturally follows that each committee is anxious to get all other business out of the way in order that it may have an opportunity to bring the measures which it has prepared to the attention of the House. This struggle between the various committees for an opportunity to report the bills which they have framed and have them considered by the House explains the acquiescence of that body in a system that so greatly restricts the freedom of debate. Very rarely will a committee encounter any formidable opposition in bringing the discussion of its measures to a close. The speaker's power of recognition is another check upon the majority in the House. This power which he freely uses in an arbitrary manner enables him to prevent the introduction of an obnoxious bill by refusing to recognize a member who wishes to obtain the floor for that purpose.[152] Moreover, as chairman of the Committee on Rules he virtually has the power to determine the order in which the various measures shall be considered by the House. In this way he can secure an opportunity for those bills which he wishes the House to pass and ensure the defeat of those to which he is opposed by giving so many other matters the preference that they can not be reached before the close of the second session. The power thus exercised by the speaker, coupled with that of the committees, imposes an effectual restraint not only on the individual members, but on the majority as well. A large majority of the bills introduced are vetoed by the committees or "killed" by simply not reporting them back to the House. There is no way in which the House can override the veto of a committee or that of the speaker, since even when the rules are suspended no measure can be considered that has not been previously reported by a committee, while the speaker can enforce his veto through his power of recognition. Both the committees and the speaker have what is for all practical purposes an absolute veto on legislation. A motion to suspend the rules and pass any bill that has been reported to the House may be made on the first and third Mondays of each month or during the last six days of each session. "In this way, if two-thirds of the body agree, a bill is by a single vote, without discussion and without change, passed through all the necessary stages, and made law so far as the consent of the House can accomplish it. And in this mode hundreds of measures of vital importance receive, near the close of exhausting sessions, without being debated, amended, printed, or understood, the constitutional assent of the representatives of the American people."[153] This system which so effectually restricts the power of the majority in the House affords no safeguard against local or class legislation. By making it difficult for any bill however worthy of consideration to receive a hearing on its own merits, it naturally leads to the practice known as log-rolling. The advocates of a particular measure may find that it can not be passed unless they agree to support various other measures of which they disapprove. It thus happens that many of the bills passed by the House are the result of this bargaining between the supporters of various measures. Certain members in order to secure the passage of a bill in which they are especially interested will support and vote for other bills which they would prefer to vote against. In this way many bills secure a favorable vote in the House when a majority of that body are really opposed to their enactment. It is entirely within the bounds of possibility that no important measure desired by the people at large and which would be supported by a majority of the House, can be passed, since any powerful private interest opposed to such legislation may be able to have the measure in question quietly killed in committee or otherwise prevented from coming to a final vote in the House. But while legislation in the interest of the people generally may be defeated through the silent but effective opposition of powerful private interests, many other measures which ought to be defeated are allowed to pass. A system which makes it possible to defeat the will of the majority in the House by preventing on the one hand the enactment of laws which that majority favors, and by permitting on the other hand the enactment of laws to which it is opposed, certainly does not allow public opinion to exercise an effective control over the proceedings of the House. As a foreign critic observes, "the House has ceased to be a debating assembly: it is only an instrument for hasty voting on the proposals which fifty small committees have prepared behind closed doors.... At the present time it is very much farther from representing the people than if, instead of going as far as universal suffrage, it had kept to an infinitely narrower franchise, but had preserved at the same time the freedom, fullness, and majesty of its debates."[154] CHAPTER VIII THE PARTY SYSTEM The political party is a voluntary association which seeks to enlist a majority of voters under its banner and thereby gain control of the government. As the means employed by the majority to make its will effective, it is irreconcilably opposed to all restraints upon its authority. Party government in this sense is the outcome of the efforts of the masses to establish their complete and untrammeled control of the state. This is the reason why conservative statesmen of the eighteenth century regarded the tendency towards party government as the greatest political evil of the time. Far-sighted men saw clearly that its purpose was revolutionary; that if accomplished, monarchy and aristocracy would be shorn of all power; that the checks upon the masses would be swept away and the popular element made supreme. This would lead inevitably to the overthrow of the entire system of special privilege which centuries of class rule had carefully built up and protected. When our Constitution was framed responsible party government had not been established in England. In theory the Constitution of Great Britain recognized three coordinate powers, the King, the Lords, and the Commons. But as a matter of fact the government of England was predominantly aristocratic. The landed interests exerted a controlling influence even in the House of Commons. The rapidly growing importance of capital had not yet seriously impaired the constitutional authority of the landlord class. Land had been until recently the only important form of wealth; and the right to a voice in the management of the government was still an incident of land ownership. Men as such were not entitled to representation. The property-owning classes made the laws and administered them, officered the army and navy, and controlled the policy of the government in every direction. "According to a table prepared about 1815, the House of Commons contained 471 members who owed their seats to the goodwill and pleasure of 144 Peers and 123 Commoners, 16 government nominees, and only 171 members elected by popular suffrages."[155] As the real power behind the government was the aristocracy of wealth, the English system, though nominally one of checks and balances, closely resembled in its practical working an unlimited aristocracy. The framers of our Constitution, as shown in previous chapters, took the English government for their model and sought to establish the supremacy of the well-to-do classes. Like the English conservatives of that time they deplored the existence of political parties and consequently made no provision for them in the system which they established. Indeed, their chief purpose was to prevent the very thing which the responsible political party aimed to establish, viz., majority rule. "Among the numerous advantages promised by a well-constructed union," wrote Madison in defense of the Constitution, "none deserves to be more accurately developed than its tendency to break and control the violence of faction.... "By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.... " ... But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes actuated by different sentiments and views.... "If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by a regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed."[156] The very existence of political parties would endanger the system which they set up, since in their efforts to strengthen and perpetuate their rule they would inevitably advocate extensions of the suffrage, and thus in the end competition between parties for popular support would be destructive of all those property qualifications for voting and holding office which had up to that time excluded the propertyless classes from any participation in public affairs. Hence Washington though a staunch Federalist himself saw nothing inconsistent in trying to blend the extremes of political opinion by giving both Hamilton and Jefferson a place in his Cabinet. In England the party by the Reform bill of 1832 accomplished its purpose, broke through the barriers erected against it, divested the Crown of all real authority, subordinated the House of Lords, and established the undisputed rule of the majority in the House of Commons. This accomplished, it was inevitable that the rivalry between political parties should result in extensions of the suffrage until the House should come to represent, as it does in practice to-day, the sentiment of the English people. The framers of the American Constitution, however, succeeded in erecting barriers which democracy has found it more difficult to overcome. For more than a century the constitutional bulwarks which they raised against the rule of the numerical majority have obstructed and retarded the progress of the democratic movement. The force of public sentiment soon compelled, it is true, the adoption of the Twelfth Amendment, which in effect recognized the existence of political parties and made provision for the party candidate for President and Vice-President. At most, however, it merely allowed the party to name the executive without giving it any effective control over him after he was elected, since in other respects the general plan of the Constitution remained unchanged. The political party, it is true, has come to play an important role under our constitutional system; but its power and influence are of a negative rather than a positive character. It professes, of course, to stand for the principle of majority rule, but in practice it has become an additional and one of the most potent checks on the majority. To understand the peculiar features of the American party system one must bear in mind the constitutional arrangements under which it has developed. The party is simply a voluntary political association through which the people seek to formulate the policy of the government, select the officials who are to carry it out in the actual administration of public affairs, and hold them to strict accountability for so doing. Under any government which makes full provision for the political party, as in the English system of to-day, the party has not only the power to elect but the power to remove those who are entrusted with the execution of its policies. Having this complete control of the government, it can not escape responsibility for failure to carry out the promises by which it secured a majority at the polls. This is the essential difference between the English system on the one hand and the party under the American constitutional system on the other. The one well knows that if it carries the election it will be expected to make its promises good. The other makes certain promises with the knowledge that after the election is over it will probably have no power to carry them out. It is this lack of power to shape the entire policy of the government which, more than anything else, has given form and character to the party system of the United States. To the extent that the Constitution has deprived the majority of the power to mold the policy of the government through voluntary political associations, it has defeated the main purpose for which the party should exist. The fact that under the American form of government the party can not be held accountable for failure to carry out its ante-election pledges has had the natural and inevitable result. When, as in England, the party which carries the election obtains complete and undisputed control of the government, the sense of responsibility is ever present in those who direct it. If in the event of its success it is certain to be called upon to carry out its promises, it can not afford for the sake of obtaining votes to make promises which it has no intention of keeping. But when the party, even though successful at the polls may lack the power to enforce its policy, it can not be controlled by a sense of direct responsibility to the people. Promises may be recklessly and extravagantly made merely for the sake of getting votes. The party platform from the point of view of the party managers ceases to be a serious declaration of political principles. It comes to be regarded as a means of winning elections rather than a statement of what the party is obligated to accomplish. The influence thus exerted by the Constitution upon our party system, though generally overlooked by students and critics of American politics, has had profound and far-reaching results. That the conduct of individuals is determined largely by the conditions under which they live is as well established as any axiom of political science. This must be borne in mind if we would fully understand the prevailing apathy--the seeming indifference to corruption and ring rule which has so long characterized a large class of intelligent and well-meaning American citizens. To ascribe the evils of our party system to their lack of interest in public questions and their selfish disregard of civic duties, is to ignore an important phase of the problem--the influence of the system itself. In the long run an active general interest can be maintained only in those institutions from which the people derive some real or fancied benefit. This benefit in the case of the political party can come about only through the control which it enables those who compose it to exercise over the government. And where, as under the American system, control of the party does not ensure control of the government, the chief motive for an alert and unflagging interest in political questions is lacking. If the majority can not make an effective use of the party system for the attainment of political ends, they can not be expected to maintain an active interest in party affairs. But although our constitutional arrangements are such as to deprive the people of effective control over the party, it has offices at its disposal and sufficient power to grant or revoke legislative favors to make control of its organization a matter of supreme importance to office seekers and various corporate interests. Thus while the system discourages an unselfish and public-spirited interest in party politics, it does appeal directly to those interests which wish to use the party for purely selfish ends. Hence the ascendency of the professional politician who, claiming to represent the masses, really owes his preferment to those who subsidize the party machine. The misrepresentative character of the American political party seems to be generally recognized by those who have investigated the subject. It is only when we look for an explanation of this fact that there is much difference of opinion. The chief difficulty encountered by those who have given attention to this problem has been the point of view from which they have approached it. The unwarranted assumption almost universally made that the principle of majority rule is fundamental in our scheme of government has been a serious obstacle to any adequate investigation of the question. Blind to the most patent defects of the Constitution, they have ignored entirely its influence upon the development and character of the political party. Taking it for granted that our general scheme of government was especially designed to facilitate the rule of the majority, they have found it difficult to account for the failure of the majority to control the party machine. Why is it that under a system which recognizes the right and makes it the duty of the majority to control the policy of the government, that control has in practice passed into the hands of a small minority who exercise it often in utter disregard of and even in direct opposition to the wishes and interests of the majority? On the assumption that we have a Constitution favorable in the highest degree to democracy, how are we to explain the absence of popular control over the party itself? Ignoring the obstacles which the Constitution has placed in the way of majority rule, American political writers have almost invariably sought to lay the blame for corruption and machine methods upon the people. They would have us believe that if such evils are more pronounced here than elsewhere it is because in this country the masses control the government. If the assumption thus made concerning the nature of our political system were true, we would be forced to accept one of two conclusions: either that popular government inevitably results in the despotism of a corrupt and selfish oligarchy, or if such is not a necessary consequence, then at any rate the standard of citizenship in this country intellectually and morally is not high enough to make democracy practicable. That the ignorance, selfishness and incapacity of the people are the real source of the evils mentioned is diligently inculcated by all those who wish to discredit the theory of popular government. No one knows better than the machine politician and his allies in the great corporate industries of the country how little control the people generally do or can exercise over the party under our present political arrangements. To disclose this fact to the people generally, however, might arouse a popular movement of such magnitude as to sweep away the constitutional checks which are the source of their power. But as this is the very thing which they wish to prevent, the democratic character of the Constitution must be taken for granted; for by so doing the people are made to assume the entire responsibility for the evils which result from the practical operation of the system. And since the alleged democratic character of our political arrangements is, it is maintained, the real source of the evils complained of, the only effective remedy would be the restriction of the power of the people. This might take the form of additional constitutional checks which would thereby diminish the influence of a general election upon the policy of the government without disturbing the present basis of the suffrage; or it might be accomplished by excluding from the suffrage those classes deemed to be least fit to exercise that right. Either method would still further diminish the influence of the majority, and instead of providing a remedy for the evils of our system, would only intensify them, since it would augment the power of the minority which is, as we have seen, the main source from which they proceed. A government which limits the power of the majority might promote the general interests of society more effectually than one controlled by the majority, if the checks were in the hands of a class of superior wisdom and virtue. But in practice such a government, instead of being better than those for whom it exists, is almost invariably worse. The complex and confusing system of checks, with the consequent diffusion of power and absence of direct and definite responsibility, is much better adapted to the purposes of a self-seeking, corrupt minority than to the ends of good government. The evils of such a system which are mainly those of minority domination must be carefully distinguished from those which result from majority control. The critics of American political institutions have as a rule ignored the former or constitutional aspect of our political evils, and have held majority rule accountable for much that our system of checks has made the majority powerless to prevent. The evils of our party system, having their roots in the lack of popular control over the party machine, are thus largely a consequence of the checks on the power of the majority contained in the Constitution itself. In other words, they are the outcome, not of too much, but of too little democracy. The advocates of political reform have directed their attention mainly to the party machine. They have assumed that control of the party organization by the people would give them control of the government. If this view were correct, the evils which exist could be attributed only to the ignorance, want of public spirit and lack of capacity for effective political co-operation on the part of the people. But as a matter of fact this method of dealing with the problem is open to the objection that it mistakes the effect for the cause. It should be clearly seen that a system of constitutional checks, which hedges about the power of the majority on every side, is incompatible with majority rule; and that even if the majority controlled the party organization, it could control the policy of the government only by breaking down and sweeping away the barriers which the Constitution has erected against it. It follows that all attempts to establish the majority in power by merely reforming the party must be futile. Under any political system which recognizes the right of the majority to rule, responsibility of the government to the people is the end and aim of all that the party stands for. Party platforms and popular elections are not ends in themselves, but only means by which the people seek to make the government responsive to public opinion. Any arrangement of constitutional checks, then, which defeats popular control, strikes down what is most vital and fundamental in party government. And since the party under our system can not enforce public opinion, it is but natural that the people should lose interest in party affairs. This furnishes an explanation of much that is peculiar to the American party system. It accounts for that seeming indifference and inactivity on the part of the people generally, which have allowed a small selfish minority to seize the party machinery and use it for private ends. The party, though claiming to represent the people, is not in reality a popular organ. Its chief object has come to be the perpetuation of minority control, which makes possible the protection and advancement of those powerful private interests to whose co-operation and support the party boss is indebted for his continuance in power.[157] To accomplish these ends it is necessary to give the party an internal organization adapted to its real, though not avowed, purpose. The people must not be allowed to use the party as a means of giving clear and definite expression to public opinion concerning the questions wherein the interests of the general public are opposed to the various private interests which support the party machine. For a strong popular sentiment well organized and unequivocally expressed could not be lightly disregarded, even though without constitutional authority to enforce its decrees. To ensure successful minority rule that minority must control those agencies to which the people in all free countries are accustomed to look for an authoritative expression of the public will. The party machine can not serve the purpose of those interests which give it financial support and at the same time allow the people to nominate its candidates and formulate its political creed. Nevertheless, the semblance of popular control must be preserved. The outward appearance of the party organization, the external forms which catch the popular eye, must not reveal too clearly the secret methods and cunningly devised arrangements by which an effective minority control is maintained over the nomination of candidates and the framing of party platforms. The test of fitness for office is not fidelity to the rank and file of the people who vote the party ticket, but subserviency to those interests which dominate the party machine. The choice of candidates is largely made in the secret councils of the ruling minority and the party conventions under color of making a popular choice of candidates merely ratify the minority choice already made. Popular elections under such a system do not necessarily mean that the people have any real power of selecting public officials. They merely have the privilege of voting for one or the other of two lists of candidates neither of which may be in any true sense representative of the people or their interests. But in nothing is the lack of popular control over the party more clearly seen than in the party platforms. These are supposed to provide a medium for the expression of public opinion upon the important questions with which the government has to deal. Under a political system which recognized the right of the majority to rule, a party platform would be constructed with a view to ascertaining the sense of that majority. Does the platform of the American political party serve this purpose? Does it seek to crystallize and secure a definite expression of public opinion at the polls, or is it so constructed as to prevent it? This question can best be answered by an examination of our party platforms. The Constitution, as we have seen, was a reaction against and a repudiation of the theory of government expressed in the Declaration of Independence, although this fact was persistently denied by those who framed it and urged its adoption. The high regard in which popular government was held by the masses did not permit any open and avowed attempt to discredit it. The democracy of the people, however, was a matter of faith rather than knowledge, a mere belief in the right of the masses to rule rather than an intelligent appreciation of the political agencies and constitutional forms through which the ends of popular government were to be attained. Unless this is borne in mind, it is impossible to understand how the Constitution, which was regarded at first with distrust, soon came to be reverenced by the people generally as the very embodiment of democratic doctrines. In order to bring about this change in the attitude of the people, the Constitution was represented by those who sought to advance it in popular esteem as the embodiment of those principles of popular government to which the Declaration of Independence gave expression. The diligence with which this view of the Constitution was inculcated by those who were in a position to aid in molding public opinion soon secured for it universal acceptance. Even the political parties which professed to stand for majority rule and which should therefore have sought to enlighten the people have not only not exposed but actually aided in perpetuating this delusion. In the Democratic platform of 1840 we find the following: "Resolved, That the liberal principles embodied by Jefferson in the Declaration of Independence, and sanctioned in the Constitution, which makes ours a land of liberty and the asylum of the oppressed of every nation, have ever been cardinal principles in the Democratic faith." This was reaffirmed in the Democratic platforms of 1844, 1848, 1852, and 1856. Finding its advocacy of the Declaration of Independence somewhat embarrassing in view of its attitude on the slavery question, the Democratic party omitted from its platform all reference to that document until 1884, when it ventured to reaffirm its faith in the liberal principles which it embodied. Again, in its platform of 1900, it referred to the Declaration of Independence as "the spirit of our government" and the Constitution as its "form and letter." In the Republican platform of 1856 we read "That the maintenance of the principles promulgated in the Declaration of Independence and embodied in the Federal Constitution is essential to the preservation of our republican institutions." This was repeated in the Republican platform of 1860, and the principles of the Declaration of Independence alleged to be embodied in the Constitution were specified, viz., "That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed." The authority of the Declaration of Independence was recognized by the Republican party in its platform of 1868, and again in its platform of 1876.[158] Both parties have during recent years expressed their disapproval of monopolies and trusts, though neither when in power has shown any disposition to enact radical anti-monopoly legislation. The Democratic party which favored "honest money" in 1880 and 1884 and demanded the repeal of the Sherman Act in 1892 stood for free coinage of silver at 16 to 1 in 1896 and 1900. The Republican party which advocated international bimetallism in 1884, condemned the Democratic party in 1888 for trying to demonetize silver and endorsed bimetallism in 1892, favored "sound money" and international bimetallism in 1896 and renewed its "allegiance to the principle of the gold standard" in 1900. The Republican platform of 1860 branded "the recent reopening of the African slave trade, under the cover of our national flag, aided by perversions of judicial power, as a crime against humanity." The Democratic party in its platform of 1896 expressed its disapproval of the Income Tax decision of the United States Supreme Court and in both 1896 and 1900 condemned "government by injunction." With these exceptions neither party has ever expressed its disapproval of any exercise of authority by the Federal judiciary. Neither of the great parties has ever taken a stand in favor of an income tax, government ownership of the railroads or the telegraph, or, if we except the declaration in favor of direct election of United States senators in the Democratic platforms of 1900 and 1904, advocated any important change in our system of government. Let us now inquire how far the results of a general election can be regarded as an expression of public opinion upon the questions raised in the party platforms. Does a popular majority for a party mean that the majority approve of the policies for which that party professes to stand? It is generally assumed by the unthinking that this is the case. But such a conclusion by no means follows. If there were but one question at issue between the parties and every vote was for principle, not for particular candidates, the policy of the successful party would have the approval of the majority. But when the party defines its position on a number of issues this is no longer true. Take, for instance, the Democratic and Republican platforms of 1900, the former containing twenty-five and the latter twenty-nine separate articles in its party creed. Does a majority vote for a party indicate that the majority approve of the entire platform of that party? No thoughtful person would maintain for a moment that all who support a party approve of its entire platform. In the case of the Republican party in 1900, one large class of its supporters who believed the money question to be paramount and who feared the consequences of free coinage of silver voted the Republican ticket, though opposed to the attitude of that party on expansion and also on protection. The ardent protectionist may have given the party his support on the strength of its tariff plank alone. He may even have been opposed to the party's position on the silver question and on expansion. Another class who may have disapproved of both gold monometallism and protection, but who regarded expansion as the all-important question, supported the Republican party because of its attitude in this matter. It is certain that some who voted the Republican ticket did not approve its expansion policy; some did not approve of its extreme protectionist policy; and some did not approve of its attitude on the money question. Every man who voted the Republican ticket is assumed to have endorsed the entire policy of the party, though, as a matter of fact, the party may have secured his vote by reason of its position on the one question which he deemed to be of supreme importance. It is, to say the least, extremely probable that every intelligent man who supported the party disapproved of its attitude on one or more questions. Each plank in the platform was put there for the purpose of catching votes. Some gave their vote for one reason, some for another and some for still other reasons. And when, as in our present day party platforms, many separate and distinct bids are made for votes, it is not only possible but highly probable that no single plank in that party's creed was approved by all who voted the party ticket. If the various issues could be segregated and each voted upon separately, it is conceivable that not one of them would command a majority of the entire vote; and yet, by lumping them all together and skilfully pushing to the front and emphasizing each article of its creed before the class or in the region where it would find most support, the party may secure a popular majority for its platform as a whole. Both parties in their platforms of 1900 stood for the admission as states of Arizona, New Mexico, and Oklahoma; both declared in favor of legislation against monopolies and trusts; both favored liberal pensions, the construction of an Isthmian canal, irrigation of arid lands, reduction of war taxes and protection of American workmen against cheap foreign labor. Yet it does not by any means follow that a majority of the people voting really endorsed even these planks which were common to both platforms. Moreover the party does not always state its position in a clear and unequivocal manner. The Democratic platform while opposing Republican expansion did so with some important reservation. While denouncing the recent expansion policy of the Republican party it made a bid for the support of those who believed in a moderate and conservative expansion policy. The same is true of its attitude on protection. It did not condemn the principle of protection, but merely the abuse of the system through which monopolies and trusts had been fostered. The vague and ambiguous manner in which the party defines its attitude, together with the highly composite character of its platform, largely defeats the end for which it should be framed. As a means of arriving at a definite and authoritative expression of public opinion concerning the political questions of the day it is far from satisfactory. It is conceivable that a party may under this system carry an election and yet not a single principle for which it professes to stand would, if separately submitted, command the approval of a majority of the voters. The threefold purpose for which the party exists--(1) popular choice of candidates, (2) a clear and definite expression of public opinion concerning the questions with which the government must deal, and (3) the responsibility of the government to the popular majority are all largely defeated under the American system. The last named end of the party is defeated by the Constitution itself, and this, as hereinbefore shown, has operated to defeat the others as well. We thus see that true party government is impossible under a constitutional system which has as its chief end the limitation of the power of the majority. Where the party which has carried the election is powerless to enforce its policy, as is generally the case in this country, there can be no responsible party government. The only branch of our governmental system which responds readily to changes in public opinion is the House of Representatives. But this is and was designed to be a subordinate body, having a voice in shaping only a part of the policy of the government, and even in this limited field being unable to act except with the concurrence of the President, Senate and Supreme Court. A change in public sentiment is not likely under these circumstances to be followed by a corresponding change in the policy of the state. Even when such change in sentiment is insistent and long-continued, it may be unable to overcome the resistance of the more conservative influences in the Constitution. The most superficial examination of our political history is sufficient to show that the practical working of our Constitution has in large measure defeated the end of party government. Calhoun's contention that the party had succeeded in breaking down the elaborate system of constitutional checks on the numerical majority is not borne out by the facts. Eleven general elections since the adoption of the Constitution have resulted in a House of Representatives which had no political support in any other branch of the government. During eighty-four years of our history under the Constitution the party in the majority in the House has not had a majority in all the other branches of the general government, and consequently has not had the power to enforce its policy. From 1874 to 1896--a period of twenty-two years--there were but two years (the 51st Congress) during which the same party had a majority in all branches of the government. But even during this brief period it failed to control the treaty-making power since it lacked the two-thirds majority in the Senate which the Constitution requires. In fact, there has been no time since 1874 when any party had sufficient majority in the Senate to give it an active control over the treaty-making power. The more important and fundamental changes in public policy which involve an exercise of the amending power are still more securely placed beyond the reach of party control. Not only the power to ratify amendments, but even the power to propose them, is effectually withheld from the party, since it can scarcely ever command the required two-thirds majority in both houses of Congress or a majority in both branches of the legislature in two-thirds of the states. Under our constitutional system a political party may have a nominal majority in all branches of the government and yet lack the power to enforce its policy. That branch of the government over which the party has most control through frequent elections--viz., the House of Representatives--is the one which has least authority, while those which have most influence in shaping the policy of the government are less directly subject to the penalties of party disapproval, as in the case of the President and Senate, or entirely exempt from any effective party control as in the case of the Supreme Court. The division of authority under our Constitution makes it possible for either house of Congress to give the appearance of support to a measure which public opinion demands and at the same time really accomplish its defeat by simply not providing the means essential to its enforcement. The opportunity thus afforded for the exercise of a covert but effective veto on important legislation is a fruitful source of corruption. The extreme diffusion of power and responsibility is such as to make any effective party control and responsibility impossible. This would be the case even if the party were truly representative of public opinion. But when we consider that the party is organized on a plan which in some measure at least defeats both the popular choice of candidates and the expression of public opinion in party platforms, it is readily seen that the slight degree of party control permitted under our system is in no true sense a popular control. CHAPTER IX CHANGES IN THE STATE CONSTITUTIONS AFTER 1787 The effects of the conservative reaction were not confined to the general government. The movement to limit the power of the popular majority was felt in the domain of state as well as national politics. Even before the Constitutional Convention assembled the political reaction was modifying some of the state constitutions. This is seen especially in the tendency to enlarge the powers of the judiciary which was the only branch of the state government in which life tenure survived. This tendency received powerful encouragement and support in the adoption of the Federal Constitution which secured to the judiciary of the general government an absolute veto on both federal and state legislation. For as the state courts were not slow in following the precedent set by the Federal courts, what had been before the adoption of the Constitution a mere tendency soon became the practice in all the states. This in reality accomplished a revolution in the actual working of the state governments without any corresponding change in their outward form. It effected a redistribution of political powers which greatly diminished the influence of the popularly elected and more responsible branches of the state government and gave a controlling influence to that branch over which the people had least control. Not only was the state judiciary allowed to assume the veto power, but their independence of public opinion was more effectually safeguarded by depriving a mere majority of the legislature of the power to remove them. The provision of the Federal Constitution requiring a two-thirds majority in the legislative body for removal by impeachment or otherwise was quite generally copied. Without some such safeguard the party in control of the legislature could prevent the exercise of the judicial veto by removing from office any judges who dared to oppose its policy. New York and South Carolina were the only states adopting constitutions during the Revolutionary period, which included provisions limiting the power of the majority to impeach public officials. The New York constitution of 1777 required a two-thirds majority in the lower house, and the South Carolina constitution of 1778 a two-thirds majority in both houses. Pennsylvania copied the impeachment provisions of the Federal Constitution in her constitution of 1790; Delaware went even farther, and in her constitution of 1792, required a two-thirds majority in both houses; Georgia followed the example of the Federal Constitution in 1798; Virginia, in 1830; North Carolina, in 1835; Vermont, in 1836; New Jersey, in 1844; and Maryland, in 1851. With the progress of this movement to restore the system of checks in the state constitutions the governor regained his independence of the legislature and also many of the rights and prerogatives of which the Revolution had deprived him. He was made coordinate with the legislature, set over against it and generally clothed with the qualified veto power, which made him for all practical purposes the third house of that body. Georgia increased the governor's term of office to two years and gave him the qualified veto power in 1798. Pennsylvania made his term of office three years and gave him the veto power in 1790. New Hampshire conferred the veto power on him in 1792 and New York in 1821. This tendency to make the public official less directly dependent upon the people or their immediate representatives is clearly seen in other important changes made in the state constitutions during this period. Popular control over the legislature was diminished by lengthening the terms of the members of both houses and by providing that the upper house should be elected for a longer term than the lower. Georgia established an upper house in 1789 and made the term of office of its members three years. In 1790 Pennsylvania also added a senate whose members were to be elected for four years, and South Carolina increased the term of its senators from one to four years. Delaware extended the term from one to two years for members of the lower house and from three to four years for members of the upper house and made the legislative sessions biennial instead of annual in 1831. North Carolina increased the term of members of both houses from one to two years and adopted biennial sessions in 1835. Maryland in 1837 extended the term of senators from five to six years, and in 1846 established biennial sessions of the legislature. The responsibility of the legislature was still further diminished by the gradual adoption of the plan of partial renewal of the senate, which was incorporated in the Revolutionary constitutions of Delaware, New York and Virginia and later copied in the Federal Constitution. This ensured the conservative and steadying influence exerted by a body of hold-over members in the upper house. With the exception of five states in which the members of one branch of the legislature were elected for terms varying from two to five years, the Revolutionary state constitutions provided for the annual election of the entire legislature. This plan made both houses conform to the latest expression of public opinion by the majority of the qualified voters at the polls. And since neither the executive nor the courts possessed the veto power, the system ensured prompt compliance on the part of the law-making body with the demands of the people as expressed in the results of the legislative election. The influence of public opinion on the state governments was greatly weakened by the constitutional changes above mentioned. The lower branch of the legislature, inasmuch as all its members were simultaneously elected, might be regarded as representative of recent, if not present, public opinion, though effective popular control of that body was made more difficult by lengthening the term of office, since this diminished the frequency with which the voters could express in an authoritative manner their disapproval of the official record of its members. Under the plan adopted present public opinion as formulated in the results of the last election was not recognized as entitled to control the state senate. These changes in the state constitutions by which the executive and judicial branches of the government acquired the veto power amounted in practice to the creation of a four-chambered legislature. By thus increasing the number of bodies which it was necessary for the people to control in order to secure the legislation which they desired, their power to influence the policy of the state government was thereby diminished. And when we reflect that not only was legislative authority more widely distributed, but each branch of the state government exercising it was also made less directly dependent on the qualified voters, we can see that these constitutional provisions were in the nature of checks on the numerical majority. A consideration of the changes made in the method of amending the state constitutions leads to the same conclusion. During the Revolutionary period, as we have seen, the tendency was strongly toward making the fundamental law the expression of the will of the numerical majority. Difficulties in the way of change were reduced to a minimum. But under the influence of the political reaction which followed, and which produced the Constitution of the United States, the state governments were so organized as to make it more difficult for the majority to exercise the amending power. Georgia in 1789 changed the method of amending the state constitution by requiring a two-thirds majority in a constitutional convention, and made another change in 1798 by which a two-thirds majority in each house of the legislature and a three-fourths majority in each house of the succeeding legislature was required for the adoption of an amendment to the constitution. South Carolina in 1790 adopted a provision guarding against mere majority amendment by making the approval of a two-thirds majority in both branches of two successive legislatures necessary for any changes in the constitution. Connecticut in 1818 restricted the power of amending by requiring a majority in the house of representatives, a two-thirds majority in both houses of the next legislature, and final approval by a majority of the electors. New York in 1821 adopted a plan which required that an amendment should receive a majority in each branch of the legislature, a two-thirds majority in each branch of the succeeding legislature, and be approved by a majority of the voters. North Carolina in 1835 made a three-fifths majority in each house of the legislature and a two-thirds majority of each house of the following legislature necessary for changes in the constitution. The judicial veto served the purpose of preventing majority amendment under the guise of ordinary legislation, while a safeguard against constitutional changes favored by a mere majority was thus provided in the extraordinary majority required in both houses of the legislature to propose or adopt amendments. This, as has been shown in the case of the Federal Constitution, is a formidable check on the majority. In view of this restriction upon the proposing of amendments the provision for ratification by a popular majority, which owing to the progress of the later democratic movement has now been generally adopted, is no real concession to the principle of majority rule. Assuming that a two-thirds majority in the legislature is required to propose an amendment, and that the principle of representation is so applied that each party is represented in the legislature in proportion to its popular vote, it would scarcely ever be possible for any party to propose an amendment to the state constitution, since it can not be expected under any ordinary conditions to control two-thirds of the popular vote. But inasmuch as the successful party often secures under our system much more than its proportional share of representation in the legislature, it is by no means unusual for a party to have a two-thirds majority in both houses of a state legislature. This would appear to give the numerical majority under such conditions the power to propose and adopt amendments. Such would be the case if the party were really responsible to those who supported it at the polls. But this would assume the existence of a purely state party, organized with reference to state issues only, and carrying the election as the advocate of a definite state policy. Moreover, it would presuppose all those means, political and constitutional, by which the majority in the legislature would be accountable to the popular majority in the state. This is rendered impossible, however, as has been shown, by our system of government. The above-mentioned changes in the constitutions of the older states may be attributed in large measure to the reaction against democracy which brought about the adoption of the Federal Constitution. They may be regarded as an expression of that distrust and fear of democracy which filled the minds of those who framed and set up our Federal government. It is not contended, however, that they are now so regarded by the masses of the people. The work of deifying the Federal Constitution was soon accomplished. And when the people had come to venerate it as the most perfect embodiment of the doctrine of popular sovereignty that the intelligence of man could devise, it was but natural that they should acquiesce in the proposal to make the state governments conform more closely to the general plan of that instrument. In view of the widespread sentiment which amounted to a blind and unthinking worship of the Constitution, it is not surprising that the political institutions of the general government should have been largely copied by the states. The only surprising thing in this connection is the fact that they did not follow the Federal model more closely, since every feature of it was the object of the most extravagant eulogy. Here we see, however, an inconsistency between profession and practice. The people who tolerated no criticism of the Federal Constitution showed nevertheless a distrust of some of its more conservative features. Much as the indirect election of President and United States senators was favored by the framers of our Federal Constitution, there has been no tendency to apply that principle in the selection of the corresponding state officials. In all the states framing new constitutions during the Revolutionary period, except Massachusetts, New Hampshire, and New York, the governor was elected by the legislature. Pennsylvania abandoned indirect election and adopted election by the qualified voters in 1790; Delaware, in 1792; Georgia, in 1824; North Carolina, in 1835; Maryland, in 1837; New Jersey, in 1844; Virginia, in 1850; and South Carolina, in 1865. South Carolina and Maryland are the only states which have ever had indirect election of the upper house. Both adopted it in 1776, the constitution of South Carolina providing that the members of the lower house should elect the members of the upper house, and the constitution of Maryland requiring that members of the upper house should be chosen by an electoral college. This was abandoned for direct election in South Carolina in 1778 and in Maryland in 1837. The conservative reaction was soon followed by a new movement toward democracy. This no doubt largely explains the failure of the people to reproduce in their state constitutions all those features which they professed to admire in the Federal Constitution. Not only did they not copy all the new features of that document, but they even discarded some of the then existing provisions of the state constitutions which had been copied in the Federal Constitution. The principle of indirect election which was everywhere recognized in the choice of the state judiciary during the Revolutionary period was gradually abandoned for the more democratic method of direct popular choice which has now become the rule. The life tenure of judges which formerly existed in most of the states has almost entirely disappeared. In all but four states the judges are now chosen for terms varying from two to twenty-one years--the average length of the term being eight or ten years. The combination of direct popular choice with a fixed term of office has had the effect of making the state judiciary much more amenable to public opinion than the corresponding branch of the Federal government. By reason of the relatively long term for which the judges of the state supreme court are elected, however, and the plan of gradual renewal which prevents present public opinion from ever gaining the ascendency in that body, it is still the least responsible and most conservative branch of the state government. We see, then, two motives exerting an influence in the remolding of the state constitutions, one being the desire to copy the Federal Constitution and the other the belief that the state government should reflect the will of the people. That the attainment of one of these ends would inevitably defeat the other was not generally recognized. The conviction which had become thoroughly rooted in the popular mind that the system of checks and balances was the highest expression of democratic organization ensured the embodiment of the general features of that system in the constitutions of the various states. The constitutional changes having this end in view largely destroyed the responsibility of the state governments to the people and thus prevented the very thing they were designed to accomplish. But however much this system was in reality opposed to the principle of direct popular control, it was adopted by the people with the idea of making the government more readily reflect their will. They were not conscious of any inconsistency in holding tenaciously to the doctrine of checks and balances and at the same time seeking to give the people more control over the state governments. The latter purpose is clearly seen in the constitutional changes relating to the tenure and manner of election of the judiciary and in the adoption of universal suffrage. Summing up the effects of these changes in the state constitutions, we may say that the suffrage was placed upon a democratic basis, the state judiciary was organized on a less irresponsible plan and the appearance of political responsibility secured by applying the principle of direct election to every branch of the state government. The longer term of office established for the legislative and executive branches of the state government, however, together with the increase in the authority of the judiciary and the adoption of the system of checks and balances has upon the whole had the effect of making the state government less responsive to the electorate. As seen in preceding chapters, the framers of the Federal Constitution made use of the scheme of checks and balances for the purpose of limiting the power of the people. There is little evidence that they favored diffusion of authority except in so far as that authority rested upon a popular basis. Hence they carried the plan much farther in curtailing the power of the House of Representatives than a logical application of the doctrine would have justified, while at the same time giving more authority and power of independent action to the other branches of the general government than was consistent with their avowed, if not real, purpose. They gave to the executive and judicial branches of the general government power to control the administration of Federal laws. The enforcement of all laws and regulations of the general government, in so far as the President and Senate might desire to enforce them, was guaranteed through the power to appoint and remove those who were entrusted with their execution, while the right of appeal from a state to the Federal courts precluded the possibility of enforcing a state law deemed to exceed the proper limits of state authority. In the state governments on the other hand we find a high degree of administrative decentralization. The governor, unlike the President, was not given any adequate power to control those entrusted with the execution of state laws. A multitude of directly elected local officials are the agents of the state for this purpose. And since they reflect the sentiment of the various local interests to which they owe their election, it may and often does happen that a law to which those interests are opposed is rendered practically inoperative through the efforts of those local officials who are sworn to enforce it. The practical working of this system often gives to a local community an administrative veto on such general laws of the state as may be opposed to local sentiment. By this means the general executive authority of the state is weakened and its responsibility correspondingly diminished. In still another respect the policy of dividing authority and parcelling it out between separate and distinct organs of government has been carried much farther in the state than in the Federal Constitution. Unlike the Federal government in which executive power is centralized in the President, the state constitutions have created a number of separate officials, boards and commissions, some directly elected and some appointed, independent of each other and irresponsible except in so far as a fixed term of office implies responsibility. This means that instead of one executive the state has many. Only one of them--the governor--has, it is true, a veto on the enactment of laws; but this, as we have seen, is really a legislative and not an executive power. Each of these has what may be termed an administrative veto; that is, the power to negative the laws which they are expected to administer by simply not enforcing them. The impossibility of securing an honest and faithful administration of the laws where the responsibility for their enforcement is divided between a number of separate and practically independent officials, is clearly shown in the experience of the various states. The evils of this system are illustrated in the state laws enacted for the purpose of controlling the railway business. Provision is usually made for their enforcement through a railway commission either directly elected or appointed by the governor. That direct election by the people for a fixed term, thereby securing independence during that term, fails to guarantee the enforcement of such laws is strikingly shown in the experience of California, where this body has been continually under the domination of the railway interests.[159] Under a system which thus minutely subdivides and distributes the administrative function, any effective control over the execution of state laws is made impossible. The governor, who is nominally the head of the executive agencies of the state, is not in reality responsible, since he has no adequate power to compel the enforcement of laws directly entrusted to other independent state officials. Any interest or combination of interests that may wish to prevent the enforcement of certain laws may be able to accomplish their end by merely controlling the one official or board whose duty it is to enforce the law in question. Their task would be a much more difficult one, if it were necessary to control for that purpose the entire executive arm of the state. The opportunity for the corrupt use of money and influence is thus vastly increased, since the people, though they might watch and judge fairly well the conduct of one state executive, can not exercise any effective censorship over a large number of such officials. This irresponsibility which arises out of a wide diffusion of power is not confined to the executive branch of the state government. The legislature in the course of our political development has taken on the same elaborate committee organization which characterizes, as we have seen, our Federal Congress. The same sinister influences working through similar agencies oppose needed legislation. But although the good bills are frequently killed or mutilated in the secrecy of the committee room, the skilful use of money or other corrupt influence often secures the enactment of laws opposed to the interests of the people. Moreover, the practice known as log-rolling by which the representatives of various local interests combine and force through measures which secure to each of certain localities some advantage at the expense of the state at large are so common as to excite no surprise. The relation existing between the executive and legislative branches under our system is another source of irresponsibility, since it does not follow simply because a law has been placed upon the statute books of a state that it can be enforced. An act may be passed in response to a strong public sentiment, it may be constitutional and the executive may be willing and may even desire to enforce it, and yet be unable to do so. The legislature may, and frequently does, enact laws under the pressure of public opinion while at the same time quietly exercising what is, in effect, a veto on their execution. In the case of much important legislation it can accomplish this by merely not appropriating the funds which are required for their enforcement. The laws against adulteration are a good illustration. An official known perhaps as a dairy and food commissioner may be provided for, whose duty it is to enforce these laws. The nature of the work entrusted to him requires that he should have a corps of assistants, inspectors who are to keep a watchful eye on the goods likely to be adulterated and collect samples of such goods from the various places in the state where they are exposed for sale, and chemists who are to analyze the samples thus procured and determine whether manufacturers and dealers are complying with the law. Unless an adequate sum is appropriated for this purpose, and for prosecuting those who are violating the law, such laws can not be enforced. In our state governments the subdivision of authority has been carried so far that no effective control over the enactment or enforcement of state laws is possible. Under the influence of the doctrine of checks and balances the policy of widely distributing political authority has inured to the benefit of those private interests which are ever seeking to control the government for their own ends, since it has supplied the conditions under which the people find it difficult to fix the blame for official misconduct. Indeed it may be said that wherever power should be concentrated to ensure responsibility, it has been almost invariably distributed. CHAPTER X MUNICIPAL GOVERNMENT Our municipal government, like the rest of our political system, was originally an inheritance from England. The governing power in colonial times was a single body, the common council, such as exists in England to-day, composed of mayor, recorder, aldermen, and councilmen. As a rule the councilmen were elected annually by the qualified voters, while the mayor was appointed by the colonial governor. The council had authority to enact local regulations not in conflict with English or colonial legislation. The mayor had no veto and usually no appointing power. The Revolution did not modify the general scheme of municipal government in any important respect. The mayor was still, as a rule, appointed by the governor, who now owed his office directly or indirectly to the qualified voters of the state. The power to grant municipal charters, which before the Revolution was exercised by the provincial governor, was now lodged in the state legislature. The important changes in municipal government were made after, and may be regarded as an effect of the adoption of the Federal Constitution. As the centralization of authority in the hands of the common council could not be reconciled with the new doctrine of checks and balances, municipal government was reorganized on the plan of distributed powers. This effort to readjust the political organization of the city and make it conform to the general scheme of the Federal government is seen in the municipal charters granted after the adoption of the Constitution. The tendency toward a bicameral council, the extension of the term for which members of the council were elected and the veto power of the mayor may be attributed to the influence of the Constitution rather than to any intelligent and carefully planned effort to improve the machinery of municipal government. As in the case of the state governments, the development of the system was influenced by the growing belief in democracy. Property qualifications for the suffrage disappeared, and the mayor became a directly elected local official. The changes made in municipal government, however, as a concession to the newer democratic thought, did not ensure any very large measure of popular control. Municipal government in its practical working remained essentially undemocratic. It would be perfectly reasonable to expect that popular government would reach its highest development in the cities. Here modern democracy was born; here we find the physical and social conditions which facilitate interchange of thought and concerted action on the part of the people. Moreover, the government of the city is more directly and immediately related to the citizens than is the government of state or nation. It touches them at more points, makes more demands upon them and is more vitally related to their everyday life and needs than either state or national government. For these reasons the most conspicuous successes of democracy should be the government of present-day cities. Under a truly democratic system this would doubtless be the case. But in this country the most glaring abuses and most conspicuous failures of government occur in the cities. The enemies of popular government have used this fact for the purpose of discrediting the theory of democracy. They would have us believe that this is the natural result of a system which places political authority in the hands of the masses--that it is the fruit of an extreme democracy. This conclusion rests upon the assumption that municipal government in this country is democratic--an assumption which will not bear investigation. American cities are far from being examples of extreme democracy. In some important respects they are less democratic than the government of either state or nation. A careful analysis of the situation shows clearly that the municipal evils so frequently attributed to an excess of democracy are really due to the system of checks by which all effective power to regulate municipal matters is withheld from the majority. In this country popular control is reduced to a minimum in the cities, while in Great Britain and the countries of western Europe we find in municipal government the nearest approach to democracy. This is the true explanation of the fact that municipal government is our greatest failure and their most conspicuous success. Under any consistent application of the theory of democracy a city would be entitled to the fullest measure of local self-government. It ought to be given an absolutely free hand to initiate and carry out any policies of purely local concern. This right, however, the American city does not possess. Local self-government is recognized neither in theory nor in practice under our political scheme. The true local unit is the city, and this, according to our legal and constitutional theory, is merely the creature of the state legislature. The latter called it into being, determines what powers it may exercise, and may strip it of them at pleasure. According to the prevailing practice of our state legislatures and the almost uniform decisions of our courts the exercise of local self-government by our cities is to be regarded as a mere privilege and not a right. The municipal charter was originally a grant of certain privileges of local government in return for money payments or other services rendered to the king. It was a mere concession of privileges based upon expediency, and not a recognition on the part of the Crown of local self-government as an admitted right. As an express and formal statement of the measure of local government which the king would bind himself to respect, it tended to limit his power of interference in matters covered by such charter, since privileges solemnly granted could not with safety be lightly and arbitrarily disregarded. Municipal charters thus have the same origin as the constitution of the state itself, in that they are the outcome of an effort to place a check upon an irresponsible central authority. The legislature of the American commonwealth in succeeding to the power of the king over municipal charters manifested at first an inclination to concede to the city the right to a measure of local self-government. Thus "the city of New York received from the English kings during the colonial period a charter which, on the Declaration of the Independence of the colony of New York, and the establishment of the new state of New York, was confirmed by the first Constitution of the state. For a considerable period after the adoption of this constitution, changes in that charter were made upon the initiation of the people of the city, which initiation took place through the medium of charter conventions whose members were elected by the people of the city, and no statute which was passed by the legislature of the state relative to the affairs of the city of New York took effect within the city until it had been approved by the city."[160] But as Professor Goodnow observes, American cities "have very largely lost their original powers of local self-government."[161] The original conception of the city charter as a contract which established certain rights of local self-government which the legislature was bound to respect, merely recognized municipal corporations as entitled to the same exemption from unreasonable legislative interference, as the courts have since the Dartmouth College decision enforced in favor of private corporations. If this view had prevailed cities could not have been deprived arbitrarily of rights once recognized by the legislature, but they could have enforced the recognition of no rights not thus granted. The recognition of this doctrine would have prevented many of the abuses that have characterized the relation between state and municipal government in this country, but it would have guaranteed no rights which the legislature had not seen fit to confer. Any liberal interpretation of the theory of democracy must of necessity go farther than this, and make municipal self-government a fundamental right which the central authority of the state can, not only neither abridge nor destroy, but can not even withhold, since it is a right having its source not in a legislative grant, but in the underlying principles of popular government. The failure to recognize the right of local self-government as fundamental in any scheme of democracy was unfortunate. Some of the worst evils of municipal government would have been avoided, however, if authority once granted to municipalities had been treated by the courts as a limitation of the power of the legislature to interfere in purely local matters. The refusal of the state government to recognize an appropriate sphere of municipal activity which it would have no right to invade, has been the main cause of corruption and inefficiency in municipal government. The policy of state interference in municipal affairs was the inevitable outgrowth of the doctrine that cities had no powers except such as had been expressly given, or were necessarily implied in their charters. This lack of the power of initiative made it necessary for cities, as they increased in size and complexity, to make constant appeals to the legislature for permission to supply their wants. Every new problem which the city had to deal with, every new function which it had to perform, was a ground for state interference. This necessity of invoking the aid of the state legislature, constantly felt in every rapidly growing city, tended to develop a feeling of dependence upon legislative intervention as an indispensable factor in the solution of local problems. Thus the refusal of the state government to recognize the right of municipal initiative compelled the cities to welcome state interference as the only means of dealing with the new problems with which they were being continually confronted. Another reason for the extension of state authority at the expense of the municipality is to be found in the twofold character of city government. Besides being a local government the city is also for certain purposes the administrative agent of the state, and as such is properly subject to state supervision. But, in the absence of any clear distinction between state and local interests, it was an easy matter for protection of the former to serve as a pretext for undue interference with the latter. The city was thus placed at the mercy of the state government, since the legislature could make the needs of the municipality or the protection of the general interests of the state a pretext for any interference calculated to further the private or partisan ends of those who controlled the legislative machine. As cities increased in importance it was found that this unlimited power over them could be made a valuable asset of the party machine in control of the state legislature. The city offered a rich and tempting field for exploitation. It had offices, a large revenue, spent vast sums in public improvements, let valuable contracts of various kinds and had certain needs, as for water, light, rapid transit, etc., which could be made the pretext for granting franchises and other privileges on such terms as would ensure large profits to the grantees at the expense of the general public. That the political machine in control of the state government should have yielded to the temptation to make a selfish use of its powers in this direction, is only what might have been expected. "The legislature has often claimed also the right to appoint municipal officers and to fix and change the details of municipal organization, has legislated municipal officers out of office, and established new offices. In certain cases it has even provided that certain specific city streets shall be paved, has imposed burdens upon cities for the purpose of constructing sewers or bringing in water; has regulated the methods of transportation to be adopted within the limits of cities; in a word, has attended to a great number of matters which are purely local in character; matters which do not affect the people of the state as a whole, and in regard to which there is little excuse for special legislative action."[162] The extent to which state regulation of local matters has been carried in New York is indicated by the fact that in the year 1886 "280 of the 681 acts passed by the legislature ... interfered directly with the affairs of some particular county, city, village, or town, specifically and expressly named.... "The Philadelphia City Hall Building affords a good example of how far this lack of local responsibility may sometimes carry the legislature in the exercise of local powers, and in the imposition of financial burdens on cities. 'In 1870 the legislature decided that the city should have new buildings. The act [which was passed to accomplish this result] selected certain citizens by name, whom it appointed commissioners for the erection of the buildings. It made this body perpetual by authorizing it to fill vacancies.... This commission was imposed by the legislature upon the city, and given absolute control to create debts for the purpose named, and to require the levy of taxes for their payment. "'The public buildings at Broad and Market streets were,' in the words of Judge Paxson, 'projected upon a scale of magnificence better suited for the capitol of an empire than the municipal buildings of a debt-burdened city.' Yet this act was declared constitutional, the city was compelled to supply the necessary funds, and 'for nearly twenty years all the money that could be spared from immediate and pressing needs' was 'compulsorily expended upon an enormous pile which surpasses the town halls and cathedrals of the Middle Ages in extent if not in grandeur.'"[163] The legislature is strongly tempted to abuse its power when the party machine in control of the state does not have the political support of the local authorities. One of the most notorious examples of such interference in recent years was the so-called "ripper" legislation enacted in Pennsylvania in 1901, by which the mayors of Pittsburg and Allegheny were removed from office and the governor given the power to appoint and remove their successors until the regular municipal election in the year 1903. The motive for this legislation was the desire to crush local opposition to the state machine by putting the control of municipal offices in the hands of a governor friendly to the political boss of the state. In order to provide an opportunity for the mayor appointed by the governor to use his office in building up and perpetuating a local machine that would support the clique in control of the state government, the appointee of the governor was declared eligible for re-election, although his locally elected successors were made ineligible. A more flagrant abuse of legislative authority could hardly be imagined; yet this act was declared constitutional by the supreme court of the state. Many such instances of partisan interference may be found in the recent legislation of some of the larger and more populous states. The best example of the misgovernment of cities by the legislature for private or partisan ends is seen in the franchise legislation by which privileges of great value have been secured by street railway and other corporations without any compensation to the cities concerned. The power which the legislature can exercise in the interest of private corporations monopolizing for their own profit the very necessities of life in the modern city--water, light, transportation, communication, etc.--has been one of the most serious evils resulting from state domination of municipal affairs. It exposed the legislature to the temptation which individuals and corporations seeking valuable concessions readily took advantage of for their own gain. It thus brought into active operation those forces which have been the chief factor in corrupting both state and municipal government. As soon as it came to be generally recognized that state control of local affairs not only did not prevent, but was, in fact, the chief source of the misrule of American cities, an effort was made to provide a remedy by the adoption of constitutional provisions regulating the power of the legislature to interfere in municipal affairs. These limitations relate to those matters wherein the evils of state interference have been most pronounced. Thus in some states the legislature is not allowed to grant the use of streets to railways or other private companies without the consent of the municipal authorities; to create special commissions and bestow upon them municipal functions; or to incorporate cities or regulate them by special laws. It was not the purpose of these constitutional provisions to grant to municipalities any immunity from state control, but merely to forbid certain modes of exercising legislative supervision which, as experience had shown, were liable to serious abuses. The prohibition of special legislation, generally incorporated in recent state constitutions, has, however, largely failed to accomplish its purpose, owing to the fact that the courts have permitted the legislature to establish so many classes of cities that it has been able to pass special acts under the guise of general laws. The state of Ohio furnishes a good example of the practical nullification of a constitutional provision by the legislature through the abuse of its power of classification. The constitution of 1851 prohibited the legislature from passing any special act conferring corporate powers and provided for the organization of cities by general laws. The legislature, however, adopted a method of classifying cities which defeated the object of this provision. In 1901 each of the eleven principal cities in the state was in a separate class. Consequently all laws enacted for each of these classes were in reality special acts, and as such were clearly an evasion of the constitutional prohibition of special legislation. Nevertheless, this method of classification had been repeatedly upheld by the courts. Its advantages to the party in control of the state government were obvious, since it gave the legislature a free hand in interfering in local affairs for partisan ends. It permitted the state machine to make concessions to a city which gave it political support and at the same time extend state control over those cities in which it encountered opposition. This was the situation down to 1902, when the supreme court rendered two decisions which overthrew the system of classification in vogue and invalidated the charter of every city in the state. It is unfortunate that this change in the attitude of the court, though much to be desired, occurred at a time when it had the appearance of serving a partisan end. One of these suits was brought by the Republican attorney-general of the state to have the charter of the city of Cleveland declared invalid on the ground that it was a special act. This charter had been in force for over ten years, having granted liberal corporate powers at a time when Cleveland was a Republican city. Later it passed into the Democratic column, and this suit was instituted as part of the plan of the Republican machine of the state to curb the power and influence of the mayor of that city. The new municipal code which was adopted at an extra session of the legislature provided a scheme of government applicable to Cleveland under which the powers of the mayor were much curtailed. In the New York constitution of 1894 an effort was made to guard against the abuse of special legislation. The cities of the state were by the constitution itself divided into three classes according to population, and any law which did not apply to all the cities of a class was declared to be a special act. Special legislation was not prohibited; but when any act of this kind was passed by the legislature it was required to be submitted to the authorities of the city or cities in question, and if disapproved of by them after a public hearing, it could become law only by being passed again in the regular manner. This merely afforded to the cities affected by the proposed special legislation an opportunity to protest against its enactment, the legislature having full power to pass it in the face of local disapproval. That this is not an adequate remedy for the evils of special legislation is shown by the fact that the two charters of New York City enacted since this constitution went into effect, have both been framed by a state-appointed commission and passed over the veto of the mayor. The constitutional changes which have been mentioned must not be understood as implying any repudiation of the doctrine that a municipal corporation is a creature of the general government of the state. These provisions merely secured, or rather sought to secure, to cities some benefits of a negative character--immunity from certain recognized abuses of legislative authority. They are the expression of an effort to find a remedy for the evils of municipal government by restricting the authority of the legislature rather than by giving cities the power to act independently in local matters. They have diminished somewhat the evils of state interference, but they failed to remove the cause by giving the cities the constitutional right to control their own affairs. The failure of all these measures to accomplish what was expected of them finally brought the advocates of municipal reform to a realization of the fact that the American system made no provision for real local self-government, and that our refusal to recognize this principle was the chief cause of the prevalent corruption and misrule of our cities and the insuperable obstacle to all effective and thoroughgoing reform. As soon as attention was directed to this feature of the problem it was seen that no system could be devised that would be better adapted to the purpose of defeating the end of good city government, since those who would be directly benefited by the reforms in municipal government were powerless to bring them about except with the co-operation of the legislature. Moreover the consent of the legislature, though once given, was liable at any time to be withdrawn at the instigation of private or partisan interests, since this body was not directly interested in establishing and maintaining good municipal government nor responsible to those who were. It was finally seen that some more effective measure than the prohibition of special legislation was required. The next step was the attempt to secure to cities the needed authority in local matters by means of a constitutional provision authorizing them to frame their own charters. In this movement the state of Missouri led the way by incorporating a home-rule provision in its constitution of 1875. California, Washington, Minnesota, and Colorado have since adopted similar provisions. In each of these states the charter is framed by a commission locally elected except in Minnesota, where it is appointed by the district judge. In Missouri this privilege is accorded only to cities having more than 100,000 inhabitants. The constitution of California adopted in 1879 also restricted the benefits of home rule to cities of more than 100,000 population, but it has since been extended to all cities having more than 3,500 inhabitants. Washington allows all cities having 20,000 or more population to frame their own charters. Minnesota extends the privilege to all cities and villages without respect to size, while Colorado restricts it to cities having more than 2,000 inhabitants. The right to serve as a member of a charter commission is limited to freeholders in all these states except Colorado, where it is restricted to taxpayers. The object of these home-rule provisions was to give cities some measure of initiative in local affairs without at the same time permitting them to organize on the plan of simple majority rule. In the Missouri constitution of 1875 a four-sevenths vote was required to adopt a charter and a three-fifths vote to ratify an amendment, although the constitution itself was adopted and could be amended by mere majority vote. The constitution of California permits ratification by a majority of the qualified voters, but every charter thus ratified must be submitted to the legislature for its approval or rejection as a whole. No charter amendment can be adopted except by a three-fifths majority of the popular vote and subsequent legislative approval, although, as in the case of Missouri, a majority vote is sufficient to approve an amendment to the state constitution. In Washington the constitution provides for the ratification of charters and charter amendments by a majority of the qualified electors. The constitutional amendment adopted in Minnesota in 1896, with its subsequent modifications, provides for the ratification of charters and charter amendments by a four-sevenths vote except in the case of certain cities where a three-fourths majority is required. A three-fifths vote in favor of a charter amendment is necessary for its ratification. Colorado, by a constitutional amendment adopted in 1902, permits the ratification and amendment of charters by a majority vote. A constitutional amendment adopted in Missouri in 1902 provides for the ratification of charters by majority vote. With the exception of California, where the constitutional amendment of 1902 allows 15 per cent. of the qualified voters to require the submission of a charter amendment, and Colorado, where 25 per cent. of the voters have that right, the states above mentioned make no provision in their constitutions for the popular initiative. Both Washington and Minnesota, however, have permitted it by statute, the former on the application of 15 per cent., and the latter when 5 per cent. of the qualified voters demand it. The chief defect of these constitutional provisions relating to home rule is that they do not really grant it. There are too many restrictions imposed upon cities availing themselves of this privilege, and in two of the states in question, notably in Missouri, they are for the benefit of the larger cities only. The restriction of the charter-framing right to freeholders, the withholding from the majority of the power to amend in California and Minnesota, and the failure to provide in the constitution for the popular initiative in Missouri, Washington, and Minnesota indicate a willingness to grant the right of home rule only under such conditions as are calculated to ensure adequate limitation of the power of the majority. These constitutional provisions certainly point in the direction which we must follow if we would find any satisfactory solution of our municipal problem. They would, if liberally interpreted by the courts, secure to cities immunity from interference in local matters. But the courts are naturally opposed to innovations in our constitutional system, and have consequently been disposed to give provisions of this character such an interpretation as will minimize their effect. The requirement that the charters framed under these provisions must be in harmony with the constitution and laws of the state has been declared by the courts to mean that they must not only conform to the laws in force at the time the charters are adopted, but also that they must conform to all legislation subsequently enacted. Had the courts been thoroughly imbued with the principle of local self-government, they could easily have given these constitutional provisions an interpretation which would have effectually deprived the legislature of the power to interfere in purely local affairs. They could have declared all acts by which the state government sought to invade the sphere of local affairs null and void, just as they have all acts of the municipal government which have encroached upon the powers reserved exclusively to the state. What the courts have done, however, is to hold that these constitutional provisions merely authorize cities to govern themselves in accordance with the constitution and in harmony with such laws as the legislature has or may hereafter enact. The city may adopt a charter which is in harmony with the constitution and the laws of the state, but the charter thus adopted may be freely modified by general laws relating to cities. The unfriendly attitude of the courts has thus largely defeated the object of these home-rule provisions. The state legislature is still free to encroach upon or abridge the sphere of municipal self-government. The constitutional provisions above mentioned may be regarded as having a twofold purpose. They were designed to limit, if not destroy, the power of the legislature to invade the sphere of municipal affairs, and also to confer upon cities the general power to act for themselves, by virtue of which they could on their own initiative, subject to certain restrictions contained in the constitution, set up their own government, formulate and carry out a municipal policy and manage their own affairs to suit themselves. This would seem to be implied necessarily in the grant of constitutional power to frame a charter for their own government. A liberal interpretation of this feature of the constitutions in question would have held that all cities to which it applied were thereby authorized to exercise all powers not expressly withheld by the constitution or the statutes of the state. This, however, has not been the attitude of the courts. Their reluctance to give home-rule provisions a liberal interpretation may be illustrated by a decision of the supreme court of Washington. In addition to the power granted to cities of the first class to frame their own charters the constitution of this state provides that "any county, city, town, or township, may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws." In view of the attitude that courts have generally taken in this matter it is not surprising that the supreme court of Washington has intimated that the above-mentioned constitutional provisions are not self-executing. Moreover, it does not seem disposed to concede even to cities of the first class any important powers except such as have been expressly conferred by statute. For example, the statutes of Washington authorize cities of the first class "to regulate and control the use" of gas supplied by a private corporation, and the charter of Tacoma expressly gave to the city council the power to fix the price of gas so supplied. Suit was brought to enjoin the city from exercising this power which was claimed under the constitutional and statutory authority given to cities of the first class. The supreme court held that while Tacoma had the power to regulate and control, expressly given it by statute, it did not have the power to fix the price.[164] This decision evinces a singular lack of sympathy on the part of the court with the home-rule provisions of the constitution of Washington. But although the effort to confer upon cities by constitutional enactment the power to manage their own affairs has thus far largely failed, it indicates a growing appreciation of the nature of the problem and the character of the remedy that must be applied. A more clearly defined and effective public opinion in favor of municipal self-government must in the end overcome judicial opposition. The most liberal interpretation of which these constitutional provisions are susceptible, however, would not have ensured complete municipal self-government. Unless a city is given adequate financial powers, a constitutional grant of the right of local self-government does not enable it to exercise much choice in relation to the more important matters of municipal policy. By narrowly limiting the powers of cities in this direction, they have been largely deprived of the advantages which they would have enjoyed under a consistent application of the home-rule principle. A certain amount of freedom in the use of the taxing power would seem to be no less essential to the city than to the state itself. Within reasonable limits it ought to be conceded the right to formulate its own scheme of taxation. In every important American city the taxes collected for municipal purposes greatly exceed those imposed for the support of the county and state government. In a matter which so vitally concerns the city it ought to have some right to pursue a policy of its own. This right has not been recognized, however, even in the constitutions which have made most concessions to the principle of municipal home rule. By this means all innovations or reforms in municipal taxation except such as may be authorized by the state itself are effectually prevented. It could not, for instance, exempt personal property from taxation, or make a tax on ground rent the main source of its revenue. The power to incur debt for municipal purposes is no less essential than the power to tax. The present-day city must spend large sums in making public improvements the cost of which it is necessary to distribute over a period of years. To limit too narrowly the borrowing power of cities for these purposes would prevent them from realizing the full benefits of unhampered self-government. This does not imply that a city should own and operate all industries of a quasi-public character, but it does imply that it should have the unquestioned right and the power to do so. Unless this is the case it is not in a position to secure the most favorable terms from such private corporations as may be allowed to occupy this field. Unreasonable restrictions upon the borrowing power of cities by placing obstacles in the way of municipal ownership of public utilities tend to deprive the people of the most effective safeguard against the extortion of private monopolies. The limitation placed upon the amount of municipal indebtedness has not had altogether the effect intended. This is mainly due to the fact that the debt limit fixed in the state constitutions was in many cases so low that it did not permit cities to make absolutely necessary public improvements, such as the paving of streets and construction of sewers. To make these improvements without resorting to credit would require the owners of the property affected to advance the full amount of their cost. This would in many instances be extremely inconvenient. Accordingly, an effort was made to find some method of evading these restrictions which would be upheld by the courts. This was accomplished by issuing bonds to be paid out of a special fund which was to be created by taxes assessed against the property of the district charged with the cost of the improvements. The courts held that this was merely a lien upon the property of the district in question, and not a municipal debt within the meaning of the above-mentioned constitutional limitations. These decisions by the courts may not appear to be in harmony with the letter of the constitutional provisions relating to municipal indebtedness, but they are hardly at variance with their spirit. The object of these restrictions was not so much to limit the rights of the property-owning classes as to protect them against the extravagance of the propertyless voters. To make an exception in favor of municipal indebtedness incurred in this way and for these purposes was not calculated to work any hardship upon property owners, but rather to give them the power to authorize the employment of credit for their own advantage. They were protected against the abuse of this particular kind of indebtedness inasmuch as the consent of the owners of a majority of the property affected was quite generally required. One influence which helped to mold a public sentiment in favor of constitutional provisions limiting the amount of municipal indebtedness was the rapid increase in the debts of American cities during the period that immediately followed the Civil war. For this condition of affairs the state government itself was largely to blame. It had prescribed a form of municipal organization which was scarcely compatible with an efficient and responsible management of financial matters. Moreover, the state government, as we have seen, could empower its own agents to borrow money for a purpose which it had authorized and obligate the city to pay it. The effort to correct these evils, first noticeable about the year 1870, took the form of constitutional provisions limiting the amount of indebtedness which could be incurred by or on behalf of cities. The main object of these provisions was to protect municipal taxpayers against an extravagant use of the borrowing power for local purposes, whether exercised by state or municipal authorities. Another advantage which these provisions seemed likely to secure to the capital-owning class deserves at least a passing mention. This policy of limiting the amount of municipal indebtedness was adopted at a time when, owing to the rapid growth of urban population, the local monopolies of water, light, transportation, etc., were becoming an important and extremely profitable field for the investment of private capital. The restrictions imposed upon the power of cities to borrow money would retard, if not preclude, the adoption of a policy of municipal ownership and thus enable the private capitalist to retain exclusive possession of this important class of industries. That the constitutional restrictions upon the general indebtedness of cities have retarded the movement toward municipal ownership is beyond question. It is not likely, however, that they will much longer block the way to municipal acquisition of those industries in which private management has proven unsatisfactory, since it may be possible to evade them by resorting to the device of a _special fund_. The same line of argument which has been accepted by the courts as supporting the constitutionality of the special fund for local improvement purposes is no less applicable to special debts incurred for the purchase of revenue-producing public utilities, such as water works, lighting plants and street railways. Under this arrangement, however, the city must not assume any responsibility for the payment of the capital borrowed, the creditors advancing the purchase price or cost of construction, looking solely to the earnings under municipal operation for the payment of both principal and interest. It may be doubted whether the courts in permitting cities to employ the special fund in relation to local improvements realized its possibilities in the direction of municipal ownership.[165] These restrictions upon the powers of cities indicate a fear that too much local self-government might jeopardize the interests of the propertied classes. This attitude on the part of those who have framed and interpreted our state constitutions is merely an expression of that distrust of majority rule which is, as we have seen, the distinguishing feature of the American system of government. It is in the cities that the non-possessing classes are numerically strongest and the inequality in the distribution of wealth most pronounced. This largely explains the reluctance of the state to allow cities a free hand in the management of local affairs. A municipal government responsive to public opinion might be too much inclined to make the public interests a pretext for disregarding property rights. State control of cities, then, may be regarded as a means of protecting the local minority against the local majority. Every attempt to reform this system must encounter the opposition of the property-owning class, which is one of the chief reasons why all efforts to establish municipal self-government have thus far largely failed. We thus see that while property qualifications for the suffrage have disappeared, the influence of property still survives. In many ways and for many purposes property is directly or indirectly recognized in the organization and administration of municipal government. The movement toward democracy has had less influence upon property qualifications for the suffrage and for office-holding in its relation to municipal than in its relation to state and national affairs. When the Federal Constitution was adopted the property qualifications for voting and office-holding in force in the various states were not disturbed. The Constitution did not recognize the principle of universal suffrage. It not only allowed the states to retain the power to prescribe the qualifications of voters in state and municipal elections, but also limited the suffrage for Federal purposes to those who were qualified to vote at state elections.[166] The removal, during the first half of the nineteenth century, of property qualifications for voting at state elections and holding state offices had the effect of placing the Federal suffrage upon a popular basis. The influence of the democratic movement was less marked, however, in the domain of municipal affairs. Here the old system under which voting and office-holding were regarded as the exclusive right of the property-owning class has not entirely disappeared. In this as in other respects the American state has evinced a fear of municipal democracy. It is true that in the choice of public officials the principle of manhood suffrage prevails. But the suffrage may be exercised either with reference to candidates or measures; and in voting upon questions of municipal policy, which is far more important than the right to select administrative officers, the suffrage is often restricted to taxpayers or the owners of real estate. Thus in Colorado, which has gone as far as any state in the Union in the direction of municipal democracy, no franchise can be granted to a private corporation or debt incurred by a city for the purpose of municipal ownership without the approval of the taxpaying electors. When we consider that 72 per cent. of the families living in Denver in the year 1900 occupied rented houses,[167] and that the household goods of a head of a family to the value of two hundred dollars are exempt from taxation,[168] the effect of this restriction is obvious. In thus limiting the right to vote, the framers of the state constitution evidently proceeded upon the theory that the policy of a city with reference to its public utilities should be controlled by its taxpayers. The justification for this constitutional provision is not apparent, however, inasmuch as the burden of supporting the public service industries of a city is not borne by the taxpayers as such, but by the people generally. Such a system makes it possible for the taxpaying class to control public utilities in their own interest and to the disadvantage of the general public. The part of the community who are taxpayers, if given the exclusive right to control these industries, would be tempted to make them an important source of municipal revenue. They would be likely to favor high rather than low or reasonable charges for these necessary public services, since their taxes would be diminished by the amount thus taken from the non-taxpayers through excessive charges. Where the majority of the citizens are property owners and taxpayers there is but little danger that public ownership will be subject to this abuse. But where there is great inequality in the distribution of wealth and a large propertyless class, democracy is the only guarantee that the benefits of municipal ownership will not be monopolized by the property-owning class. An investigation of the practical working of municipal ownership in American cities will show that this danger is not purely imaginary. In the year 1899 53.73 per cent. of the waterworks in this country were owned and operated by municipalities, public ownership being the rule in the larger cities. Taking the thirteen largest plants in the United States, all of which were municipally owned, the income from private users was $20,545,409, while the total cost of production, including estimated depreciation, aggregated only $11,469,732. If to this amount be added the estimated taxes, interest on total investment and rental value of the municipally owned quarters occupied for this purpose, the total cost of production would be $22,827,825. Private consumers, however, used only 80.2 per cent. of the water supplied. If the 19.8 per cent. supplied free for public purposes had been paid for at the same rate charged to private users, the total income from these 13 municipally owned plants would have been $25,817,720. This would have been $2,989,895 in excess of a fair return upon the total investment. No one would claim that the price of water has been increased under municipal ownership. As a matter of fact, it has been substantially reduced and the quality of the water at the same time improved. The reduction in price, however, has been less than it would have been, had the interests of the consumers alone been considered. If the object of municipal ownership is to supply pure water at the lowest possible price to the general public, there is no good reason why the city should demand a profit on the capital it has invested in the business. This would certainly be true where the earnings under municipal ownership have been sufficient to pay for the plant. In this case it would be an injustice to consumers to make them contribute, over and above the cost of operating the plant, an additional amount sufficient to pay interest on the investment, inasmuch as they have supplied the capital with which the business is carried on. Any attempt to make municipal ownership a source of revenue would mean the taxation of water consumers for the benefit of property owners. Nor is there any reason why the private consumers of water should be made to pay for the water used for public purposes. The water needed for public buildings, for cleaning streets and for extinguishing fires ought to be paid for by those chiefly benefited--the property-owning class. If instead of considering these thirteen waterworks together, we take a single example--the third largest plant--the tendency to make public ownership a source of revenue is more clearly seen. The income from private users in the case of this plant was $4,459,404. The city used for public purposes 29.5 per cent. of the total amount supplied, which if paid for at the rate charged private consumers would have made the total income from operation $6,325,395. This would have been $2,929,232 more than was required to pay all expenses, including interest on the total investment.[169] In the case of electric-light plants private ownership is the rule, only 460 of the 3,032 plants being under municipal ownership. The Report of the United States Commissioner of Labor[170] gives the data for 952 of these plants, 320 of which are municipally owned and operated. Municipal ownership, however, is mainly confined to the smaller cities and towns. This is shown by the fact that although more than one-third of the 952 plants above mentioned are under municipal control, only 30 out of 277, or less than one-ninth of the largest plants, are municipally owned. This is to be accounted for by the more determined opposition to the policy of municipal ownership by the capitalist class in the larger cities, where private management is most remunerative. Municipal plants, too, are often restricted to public lighting, not being allowed to furnish light or power for commercial purposes. This restricted form of municipal ownership is merely a slight concession on the part of the private monopolist to the taxpaying class. The general public, as consumers of light and power, derive no benefit from such a policy. These and other facts which might be mentioned illustrate the natural tendency of a system under which the power of the masses is limited in the interest of the property-owning class. The chief evils of municipal government in this country have their source not in majority but in minority rule. It is in the city where we find a numerically small but very wealthy class and a large class owning little or no property that the general political movement toward democracy has encountered the most obstinate resistance. Only a small part of our urban population own land or capital. The overwhelming majority of those who live in cities are employees and tenants. In the year 1900 74.3 per cent. of the families in the 160 cities of the United States having 25,000 or more population lived in rented houses and only 14.5 per cent. in unmortgaged homes.[171] In the smaller towns the proportion of property owners was larger, while in the country the majority of the population belonged to the land-holding class, 64.4 per cent. of the "farm" families owning their homes, 44.4 per cent. of such families owning homes that were unencumbered.[172] "Much has been said concerning the necessity of legislative interference in some cases where bad men were coming into power through universal suffrage in cities, but the recent experience of the country shows that this has oftener been said to pave the way for bad men to obtain office or grants of unusual powers from the legislature than with any purpose to effect local reforms. And the great municipal scandals and frauds that have prevailed, like those which were so notorious in New York City, have been made possible and then nursed and fostered by illegitimate interference at the seat of State government."[173] The numerical preponderance of the property-owning class in the country and of the propertyless class in the cities must be taken into account in any attempt to find an explanation of the reluctance on the part of the state to recognize the principle of municipal self-government. When we consider that the state government, even under universal suffrage, is largely government by taxpaying property owners, we can understand why the progress toward municipal democracy has been so slow. Under universal suffrage municipal self-government would mean the ascendency of the propertyless class, and this, from the standpoint of those who control the state government, would jeopardize the interests of the property-holding minority. This is doubtless one of the chief reasons why the state government has not been willing to relinquish its control over municipal affairs. This fact is not recognized, however, by present-day writers on American politics. It is generally assumed that the corruption in state and municipal government is largely due to the ascendency of the masses. This view of the matter may be acceptable to those who from principle or interest are opposed to democracy, but it ignores the facts which a careful analysis of the system discloses. Even in our state governments the changes that have been made as a concession to the newer democratic thought are less important than is generally supposed. The removal of property qualifications for voting and office-holding was a concession in form rather than in substance. It occurred at a time when there was an apparently inexhaustible supply of free land which made it possible for every one to become a landowner. Under such circumstances universal suffrage was not a radical or dangerous innovation. In fact, property qualifications for voting and office-holding were not necessary to the political ascendency of property owners in a community where the great majority of the citizens were or could become members of the property-owning class. It is not likely that property qualifications would have been removed for state purposes without a more serious struggle, if the wide diffusion of property in the state at large had not appeared to be an ample guarantee that the interests of property owners would not be endangered by universal suffrage. It was probably not intended that the abolition of property qualifications should overthrow the influence of property owners, or make any radical change in the policy of the state government. It is easily seen that the removal of property qualifications for voting and office-holding has had the effect of retarding the movement toward municipal home rule. Before universal suffrage was established the property-owning class was in control of both state and city government. This made state interference in local affairs unnecessary for the protection of property. But with the introduction of universal suffrage the conservative element which dominated the state government naturally favored a policy of state interference as the only means of protecting the property-owning class in the cities. In this they were actively supported by the corrupt politicians and selfish business interests that sought to exploit the cities for private ends. Our municipal conditions are thus the natural result of this alliance between conservatism and corruption. We can understand now why the state has been unwilling to permit the same measure of democracy in municipal affairs that it has seen fit to employ for its own purposes. This is why our limited majority rule, which may be safe enough in the state government, is often deemed inexpedient for the city. It is also the reason for keeping the more important municipal powers under the control of the state government, as well as the ground for continuing property qualifications in the city after their disappearance from the government of the state. The checks above mentioned are not the only ones to be found, however, in our municipal government. The city is organized, like the state government, on the plan of distributed powers and diffused responsibility. It contains, as a rule, an elaborate system of checks which affords little opportunity for the prompt and effective expression of local public opinion in the administration of municipal affairs. At the same time, it gives the municipal authorities power to inaugurate and carry out policies to which local public sentiment may be strongly opposed. This is seen in the control which the mayor and council quite generally exercise over the matter of municipal franchises. Probably not a city of any importance could be mentioned in which the council has not granted privileges which have enriched individuals and private corporations at the expense of the public. This power has been the chief source of municipal corruption, since it has made the misgovernment of cities a source of great profit to a wealthy and influential class. Those who imagine that the ignorant and vicious part of our urban population is the main obstacle to reform take but a superficial view of the matter. The real source of misgovernment--the active cause of corruption--is to be found, not in the slums, not in the population ordinarily regarded as ignorant and vicious, but in the selfishness and greed of those who are the recognized leaders in commercial and industrial affairs. It is this class that, as Lincoln Steffens says, may be found "buying boodlers in St. Louis, defending grafters in Minneapolis, originating corruption in Pittsburg, sharing with bosses in Philadelphia, deploring reform in Chicago, and beating good government with corruption funds in New York."[174] This is the natural fruit of our system of municipal government. The powerful corporate interests engaged in the exploitation of municipal franchises are securely entrenched behind a series of constitutional and legal checks on the majority which makes it extremely difficult for public opinion to exercise any effective control over them. The effort to provide a remedy for this condition of affairs took the form of a movement to limit the powers of the council. Boards and commissions have been created in whose hands have been placed much of the business formerly controlled by this body. The policy of subdividing the legislative authority of the city and distributing it among a number of independent boards has been carried so far, notably in New York, that, as Seth Low observes, the council has been largely deprived of all its legislative functions with the single exception of the power to grant public franchises.[175] It must not be inferred, however, that public opinion has favored the retention of this power by the council. The attempt on the part of the people to control the franchise-granting power has thus far largely failed, not because of any lack of popular support, but because our constitutional and political arrangements have made it almost impossible for any reasonable majority to overcome the opposition of organized wealth. Our efforts to bring about reforms in municipal government have thus far largely failed to accomplish what was expected of them because we have persistently refused to recognize the principle of majority rule. We have clung tenaciously to the system of checks and balances with all its restraints on popular control. The evils of municipal government are not the evils of democracy, but the evils of a system which limits the power of the majority in the interest of the minority. CHAPTER XI INDIVIDUAL LIBERTY AND THE CONSTITUTION The eighteenth-century conception of liberty was the outgrowth of the political conditions of that time. Government was largely in the hands of a ruling class who were able to further their own interests at the expense of the many who were unrepresented. It was but natural under these circumstances that the people should seek to limit the exercise of political authority, since every check imposed upon the government lessened the dangers of class rule. The problem which the advocates of political reform had to solve was how to secure the largest measure of individual liberty compatible with an irresponsible government. They were right in believing that this could be accomplished only by building up an elaborate system of constitutional restraints which would narrowly limit the exercise of irresponsible authority. Individual liberty as they understood the term was immunity from unjust interference at the hands of a minority. This was a purely negative conception. It involved nothing more than the idea of protection against the evils of irresponsible government. It was a view of liberty adapted, however, to the needs of the time and served a useful purpose in aiding the movement to curb without destroying the power of the ruling class. Any attempt to push the doctrine of liberty farther than this and make it include more than mere immunity from governmental interference would have been revolutionary. The seventeenth and eighteenth century demand was not for the abolition, but for the limitation of irresponsible authority. It was not for popular government based upon universal suffrage, but for such modifications of the system as would give to the commercial and industrial classes the power to resist all encroachments upon their rights at the hands of the hereditary branches of the government. The basis and guarantee of individual liberty, as the term was then understood, was the popular veto such as was exercised through the House of Commons. This conception of liberty was realized for those represented in any coordinate branch of the government wherever the check and balance stage of political development had been reached. The American revolution, which supplanted hereditary by popular rule, worked a fundamental change in the relation of the individual to the government. So far at least as the voters were concerned the government was no longer an alien institution--an authority imposed upon them from above, but an organization emanating from them--one in which they had and felt a direct proprietary interest. It was no longer a government in which the active principle was irresponsible authority, but one which rested upon the safe and trustworthy basis of popular control. The overthrow of monarchy and aristocracy necessitated a corresponding change in the idea of liberty to make it fit the new political conditions which had emerged. In so far as government had now passed into the hands of the people there was no longer any reason to fear that it would encroach upon what they regarded as their rights. With the transition, then, from class to popular sovereignty there was a corresponding change in the attitude of the people toward the government. They naturally desired to limit the authority and restrict the activity of the government as long as they felt that it was irresponsible; but as soon as they acquired an active control over it, the reason which formerly actuated them in desiring to limit its powers was no longer operative. Their ends could now be accomplished and their interests best furthered by unhampered political activity. They would now desire to remove the checks upon the government for the same reason that they formerly sought to impose them--viz., to promote their own welfare. This tendency is seen in the changes made in the state constitutions at the beginning of the American revolution. As shown in a previous chapter, they established the supremacy of the legislative body and through this branch of the government, the supremacy of the majority of the qualified voters. We have here a new conception of liberty. We see a tendency in these constitutional changes to reject the old passive view of state interference as limited by the consent of the governed and take the view that real liberty implies much more than the mere power of constitutional resistance--that it is something positive, that its essence is the power to actively control and direct the policy of the state. The early state constitutions thus represent a long step in the direction of unlimited responsible government. This, as we have seen, was the chief danger which the conservative classes saw in the form of government established at the outbreak of the Revolution. They were afraid that the power of the numerical majority would be employed to further the interests of the many at the expense of the few, and to guard against such a use of the government they sought to re-establish the system of checks. The Constitution which restored the old scheme of government in a new garb also revived the old conception of individual liberty. There is, however, one important difference between the eighteenth-century conception of liberty and that which finds expression in our constitutional literature. Formerly it was because of the lack of popular control that the people generally desired to limit the authority of the government, but the framers of the Constitution wished to bring about the limitation of governmental functions because they feared the consequences of majority rule. Formerly the many advocated the limitation of the power of king and aristocracy in the interest of liberty; now the few advocate the limitation of the power of the many for their own protection. With the abolition of monarchy and aristocracy the attitude of the few and the many has been reversed. The aristocratic and special interests that formerly opposed the limitation of political activity when they were predominant in the government, now favor it as a protection against the growing power of the masses, while the latter, who formerly favored, now oppose it. The conservative classes now regard the popular majority with the same distrust which the liberals formerly felt toward the king and aristocracy. In fact, the present-day conservative goes even farther than this and would have us believe that the popular majority is a much greater menace to liberty than king or aristocracy has ever been in the past. "There can be no tyranny of a monarch so intolerable," says a recent American writer, "as that of the multitude, for it has the power behind it that no king can sway."[176] This is and has all along been the attitude of the conservative classes who never lose an opportunity to bring the theory of democracy into disrepute. The defenders of the American Constitution clearly see that unless the fundamental principle of popular government is discredited the system of checks can not survive. There is no liberty, we are told by the present-day followers of Alexander Hamilton, where the majority is supreme. The American political system realizes this conception of liberty mainly through the Supreme Court--an organ of government which interprets the Constitution and laws of Congress and which may forbid the carrying out of the expressed will of the popular majority. It necessarily follows that the authority which can thus overrule the majority and enforce its own views of the system is an authority greater than the majority. All governments must belong to one or the other of two classes according as the ultimate basis of political power is the many or the few. There is, in fact, no middle ground. We must either recognize the many as supreme, with no checks upon their authority except such as are implied in their own intelligence, sense of justice and spirit of fair play, or we must accept the view that the ultimate authority is in the hands of the few. Every scheme under which the power of the majority is limited means in its practical operation the subordination of the majority to the minority. This inevitable consequence of the limitation of popular rule is not alluded to by the advocates of checks and balances, though it is obvious to any careful student of the system. It would, however, do injustice to the intelligence of those who champion the scheme of checks and balances to give them credit for any real sympathy with the aims and purposes of democracy. Individual liberty as guaranteed by majority rule was not the end which the framers of the Constitution had in view, nor is it the reason why the present-day conservative defends their work. The Constitution as originally adopted did not contain that highly prized guarantee of personal liberty which democracy everywhere insists upon. The failure to make any provision for freedom of the press should be regarded as a significant omission. This, however, was not an essential part of the Federalists' scheme of government, which aimed rather to protect the property and privileges of the few than to guarantee personal liberty to the masses. This omission is the more noteworthy in view of the fact that this guarantee was at that time expressly included in a majority of the state constitutions, and that the temper of the people was such as to compel its speedy adoption as an amendment to the Federal Constitution itself. Liberty, as the framers of the Constitution understood the term, had to do primarily with property and property rights. The chief danger which they saw in the Revolutionary state governments was the opportunity afforded to the majority to legislate upon matters which the well-to-do classes wished to place beyond the reach of popular interference. The unlimited authority which the state government had over taxation and its power to restrict or abridge property rights were viewed with alarm by the wealthy classes, who felt that any considerable measure of democracy would be likely to deprive them of their time-honored prerogatives. To guard against this danger the Constitution sought, in the interest of the classes which dominated the Federal Convention, to give the widest possible scope to private property. It prohibited private property in nothing--permitting it, as originally adopted, even in human beings. It may be said without exaggeration that the American scheme of government was planned and set up to perpetuate the ascendency of the property-holding class in a society leavened with democratic ideas. Those who framed it were fully alive to the fact that their economic advantages could be retained only by maintaining their class ascendency in the government. They understood the economic significance of democracy. They realized that if the supremacy of the majority were once fully established the entire policy of the government would be profoundly changed. They foresaw that it would mean the abolition of all private monopoly and the abridgment and regulation of property rights in the interest of the general public. The Constitution was in form a political document, but its significance was mainly economic. It was the outcome of an organized movement on the part of a class to surround themselves with legal and constitutional guarantees which would check the tendency toward democratic legislation. These were made effective through the attitude of the United States courts which, as Professor Burgess says, "have never declined jurisdiction where private property was immediately affected on the ground that the question was political."[177] "There can be no question that the national government has given to the minority a greater protection than it has enjoyed anywhere else in the world, save in those countries where the minority is a specially privileged aristocracy and the right of suffrage is limited. So absolute have property rights been held by the Supreme Court, that it even, by the Dred Scott decision, in effect made the whole country a land of slavery, because the slave was property, and the rights of property were sacred."[178] In carrying out the original intent of the Constitution with reference to property the courts have developed and applied the doctrine of vested rights--a doctrine which has been used with telling effect for the purpose of defeating democratic reforms. This doctrine briefly stated is that property rights once granted are sacred and inviolable. A rigid adherence to this policy would effectually deprive the government of the power to make the laws governing private property conform to social and economic changes. It would disregard the fact that vested rights are often vested wrongs, and that one important, if not indeed the most important, task which a government by and for the people has to perform is to rectify past mistakes and correct the evils growing out of corruption and class rule. A government without authority to interfere with vested rights would have little power to promote the general welfare through legislation. The adoption of the Constitution brought this doctrine from the realm of political speculation into the arena of practical politics. The men who framed and set up our Federal government were shrewd enough to see that if the interests of the property-holding classes were to be given effective protection, it was necessary that political power should rest ultimately upon a class basis. This they expected to accomplish largely through the judicial veto and the power and influence of the Supreme Court. The effect of establishing the supremacy of this branch of the government was to make the legal profession virtually a ruling class. To their charge was committed under our system of government the final authority in all matters of legislation. They largely represent by virtue of their training and by reason of the interests with which they are affiliated, the conservative as opposed to the democratic influences. The power and influence exerted by lawyers in this country are the natural outgrowth of the constitutional position of our Supreme Court. Its supremacy is in the last analysis the supremacy of lawyers as a class and through them of the various interests which they represent and from which they derive their support. This explains the fact so often commented on by foreign critics, that in this country lawyers exert a predominant influence in political matters. We are still keeping alive in our legal and constitutional literature the eighteenth-century notion of liberty. Our future lawyers and judges are still trained in the old conception of government--that the chief purpose of a constitution is to limit the power of the majority. In the meantime all other democratic countries have outgrown this early conception which characterized the infancy of democracy. They have in theory at least repudiated the eighteenth-century doctrine that the few have a right to thwart the will of the many. The majority has in such countries become the only recognized source of legitimate authority. "There is no fulcrum _outside_ of the majority, and therefore there is nothing on which, as _against_ the majority resistance or lengthened opposition can lean."[179] This statement was made with reference to France, but it would apply as well to England, Switzerland, and all other countries in which the principle of majority rule has received full recognition. On the other hand American constitutional and legal literature still inculcates and keeps alive fear and distrust of majority rule. The official and ruling class in this country has been profoundly influenced by political ideas which have long been discarded in the countries which have made the most rapid strides in the direction of popular government. The influence which our constitutional and legal literature, based as it is upon a profound distrust of majority rule, has had upon the lawyers, politicians, and public men of this country can hardly be overestimated. It is true that many who have been most influenced by this spirit of distrust toward popular government would be unwilling to admit that they are opposed to majority rule--in fact, they may regard themselves as sincere believers in democracy. This is not to be wondered at when we consider that throughout our history under the Constitution the old and the new have been systematically jumbled in our political literature. In fact, the main effort of our constitutional writers would appear to be to give to the undemocratic eighteenth-century political ideas a garb and setting that would in a measure reconcile them with the democratic point of view. The natural and inevitable result has followed. The students of American political literature have imbibed the fundamental idea of the old system--its distrust of majority rule--along with a certain sentimental attachment to and acceptance of the outward forms of democracy. This irreconcilable contradiction between the form and the substance, the body and the spirit of our political institutions is not generally recognized even by the American students of government. Constitutional writers have been too much preoccupied with the thought of defending and glorifying the work of the fathers and not enough interested in disclosing its true relation to present-day thought and tendencies. As a consequence of this, the political ideas of our educated classes represent a curious admixture of democratic beliefs superimposed upon a hardly conscious substratum of eighteenth-century doctrines. It is this contradiction in our thinking that has been one of our chief sources of difficulty in dealing with political problems. While honestly believing that we have been endeavoring to make democracy a success, we have at the same time tenaciously held on to the essential features of a political system designed for the purpose of defeating the ends of popular government. CHAPTER XII INDIVIDUAL LIBERTY AND THE ECONOMIC SYSTEM The American doctrine of individual liberty had its origin in economic conditions widely different from those which prevail to-day. The tools of production were simple and inexpensive and their ownership widely diffused. There was no capital-owning class in the modern sense. Business was carried on upon a small scale. The individual was his own employer, or, if working for another, could look forward to the time when, by the exercise of ordinary ability and thrift, he might become an independent producer. The way was open by which every intelligent and industrious wage-earner could become his own master. Industrially society was democratic to a degree which it is difficult for us to realize at the present day. This economic independence which the industrial classes enjoyed ensured a large measure of individual liberty in spite of the fact that political control was in the hands of a class. The degree of individual freedom and initiative which a community may enjoy is not wholly, or even mainly, a matter of constitutional forms. The actual liberty of the individual may vary greatly without any change in the legal or constitutional organization of society. A political system essentially undemocratic would be much less destructive of individual liberty in a society where the economic life was simple and ownership widely diffused than in a community possessing a wealthy capitalist class on the one hand and an army of wage-earners on the other. The political system reacts, it is true, upon the economic organization, but the influence of the latter upon the individual is more direct and immediate than that of the former. The control exerted over the individual directly by the government may, as a matter of fact, be slight in comparison with that which is exercised through the various agencies which control the economic system. But the close interdependence between the political and the business organization of society can not be overlooked. Each is limited and conditioned by the other, though constitutional forms are always largely the product and expression of economic conditions. Individual liberty in any real sense implies much more than the restriction of governmental authority. In fact, true liberty consists, as we have seen, not in divesting the government of effective power, but in making it an instrument for the unhampered expression and prompt enforcement of public opinion. The old negative conception of liberty would in practice merely result in limiting the power of the government to control social conditions. This would not necessarily mean, however, the immunity of the individual from external control. To limit the power of the government may permit the extension over the individual of some other form of control even more irresponsible than that of the government itself--the control which inevitably results from the economic supremacy of a class who own the land and the capital. The introduction of the factory system forced the great majority of small independent producers down into the ranks of mere wage-earners, and subjected them in their daily work to a class rule under which everything was subordinated to the controlling purpose of the employers--the desire for profits. The significance of this change from the old handicraft system of industry to present-day capitalistic production is fully understood by all students of modern industry. Even Herbert Spencer, the great expounder of individualism, admitted that the so-called liberty of the laborer "amounts in practice to little more than the ability to exchange one slavery for another" and that "the coercion of circumstances often bears more hardly on him than the coercion of a master does on one in bondage."[180] This dependence of the laborer, however, he regarded as unfortunate, and looked forward to the gradual amelioration of present conditions through the growth of co-operation in production. Individualism as an economic doctrine was advocated in the eighteenth century by those who believed in a larger measure of freedom for the industrial classes. The small business which was then the rule meant the wide diffusion of economic power. A _laissez faire_ policy would have furthered the interests of that large body of small independent producers who had but little representation in and but little influence upon the government. It would have contributed materially to the progress of the democratic movement by enlarging the sphere of industrial freedom for all independent producers. It does not follow, however, that this doctrine which served a useful purpose in connection with the eighteenth-century movement to limit the power of the ruling class is sound in view of the political and economic conditions which exist to-day. The so-called industrial revolution has accomplished sweeping and far-reaching changes in economic organization. It has resulted in a transfer of industrial power from the many to the few, who now exercise in all matters relating to production an authority as absolute and irresponsible as that which the ruling class exercised in the middle of the eighteenth century over the state itself. The simple decentralized and more democratic system of production which formerly prevailed has thus been supplanted by a highly centralized and thoroughly oligarchic form of industrial organization. At the same time political development has been tending strongly in the direction of democracy. The few have been losing their hold upon the state, which has come to rest, in theory at least, upon the wall of the many. A political transformation amounting to a revolution has placed the many in the same position in relation to the government which was formerly held by the favored few. As a result of these political and economic changes the policy of government regulation of industry is likely to be regarded by the masses with increasing favor. A society organized as a political democracy can not be expected to tolerate an industrial aristocracy. As soon, then, as the masses come to feel that they really control the political machinery, the irresponsible power which the few now exercise in the management of industry will be limited or destroyed as it has already been largely overthrown in the state itself. In fact the doctrine of _laissez faire_ no longer expresses the generally accepted view of state functions, but merely the selfish view of that relatively small class which, though it controls the industrial system, feels the reins of political control slipping out of its hands. The limitation of governmental functions which was the rallying-cry of the liberals a century ago has thus become the motto of the present-day conservative. The opponents of government regulation of industry claim that it will retard or arrest progress by restricting the right of individual initiative. They profess to believe that the best results for society as a whole are obtained when every corporation or industrial combination is allowed to manage its business with a free hand. It is assumed by those who advocate this policy that there is no real conflict of interests between the capitalists who control the present-day aggregations of corporate wealth and the general public. No argument is needed, however, to convince any one familiar with the facts of recent industrial development that this assumption is not true. The change in the attitude of the people toward the let-alone theory of government is, as a matter of fact, the outcome of an intelligently directed effort to enlarge and democratize--not abridge--the right of initiative in its relation to the management of industry. The right of individual initiative in the sense of the right to exercise a real control over production was lost by the masses when the substitution of machinery for tools made them directly dependent upon a class of capital-owning employers. The subsequent growth of large scale production has centralized the actual control of industry in the hands of a small class of large capitalists. The small capitalists as separate and independent producers are being rapidly crushed or absorbed by the great corporation. They may still belong to the capitalist class in that they live upon an income derived from the ownership of stock or bonds. But they have no real control over the business in which their capital is invested. They no longer have the power to organize and direct any part of the industrial process. They enjoy the benefits which accrue from the ownership of wealth, but they can no longer take an active part in the management of industry. For them individual initiative in the sense of an effective control over the industrial process has disappeared almost as completely as it has in the case of the mere wage-earner. Individual initiative even for the capital-owning class has thus largely disappeared. It has been superseded by corporate initiative which means the extinguishment of individual initiative except in those cases where it is secured to the large capitalist through the ownership of a controlling interest in the business. The abandonment of the _laissez faire_ policy, then, in favor of the principle of government regulation of industry is the outgrowth, not of any hostility to individual initiative, but of the conviction that the monopoly of industrial power by the few is a serious evil. It is manifestly impossible to restore to the masses the right of individual initiative. Industry is too complex and too highly organized to permit a return to the old system of decentralized control. And since the only substitute for the old system of individual control is collective control, it appears to be inevitable that government regulation of business will become a fixed policy in all democratic states. The _laissez faire_ policy is supposed to favor progress by allowing producers to make such changes in business methods as may be prompted by the desire for larger profits. The doctrine as ordinarily accepted contains at least two erroneous assumptions, viz., (1) that any innovation in production which makes it possible for the capitalist to secure a larger return is necessarily an improvement in the sense of augmenting the average efficiency of labor, and (2) that policies are to be judged solely by their economic effects. Even if non-interference resulted in industrial changes which in all cases increase the efficiency of labor, it would not follow that such changes are, broadly considered, always beneficial. Before drawing any sweeping conclusion we must consider all the consequences direct and indirect, immediate and remote, political and social as well as economic. Hence the ordinary test--the direct and immediate effect upon productive efficiency--is not a satisfactory one. Moreover, many changes in the methods or organization of business are designed primarily to alter distribution in the interest of the capitalist by decreasing wages or by raising prices. In so far as a policy of non-interference permits changes of this sort, it is clearly harmful to the community at large, though advantageous to a small class. In all democratic countries the conservative classes are beginning to realize that their ascendency in production is imperiled by the ascendency of the masses in the state. It thus happens that in the hope of checking or retarding the movement toward regulation of business in the interest of the people generally, they have taken refuge behind that abandoned tenet of democracy, the doctrine of non-interference. At the same time they strongly favor any deviation from this policy which will benefit themselves. This is exemplified in their attitude in this country toward our protective tariff system, which, as originally adopted, was designed to encourage the development of our national resources by offering the prospect of larger profit to those who would invest their capital in the protected industries. Under a capitalistic system development naturally follows the line of greatest profit, and for this reason any protective tariff legislation which did not augment the profits of the capitalist would fail to accomplish its purpose. This was recognized and frankly admitted when the policy was first adopted. Later, however, when the suffrage was extended and the laboring class became an important factor in national elections the champions of protection saw that the system would have to be given a more democratic interpretation. Thus the Whig platform of 1844 favored a tariff "discriminating with special reference to the protection of the domestic labor of the country." This was, however, the only political platform in which the labor argument was used until 1872, when the Republican party demanded that "duties upon importations ... should be so adjusted as to aid in securing remunerative wages to labor, and promote the industries, prosperity, and growth of the whole country." Protection, since that time, has been defended, not as a means of augmenting profits, but as a means of ensuring high wages to American workers. The interests of the wage-receiving class, however, were far from being the chief concern of those who were seeking to maintain and develop the policy of protection. It was to the capitalist rather than the wage-earner that the system of protection as originally established made a direct appeal, and it was primarily in the interest of this class that it was maintained even after the labor argument came to be generally used in its defense. The capitalist naturally favored a policy that would discourage the importation of foreign goods and at the same time encourage the importation of foreign labor. It was to his advantage to keep the labor market open to all who might wish to compete for employment, since this would tend to force wages down and thus give him the benefit of high prices. Any system of protection established in the interest of labor would have excluded all immigrants accustomed to a low standard of living. But as a matter of fact the immigration of cheap foreign labor was actively encouraged by the employers in whose interest the high tariff on foreign goods was maintained. The efforts of the wage-earning class to secure for themselves some of the benefits of protection by organizing to obtain an advance or prevent a reduction in wages was largely defeated through the wholesale importation of cheap foreign labor by the large manufacturing, mining and transportation companies. The agitation against this evil carried on by the labor unions finally resulted in the enactment by Congress of legislation forbidding the importation of labor under contract of employment. This, however, did not, and even if it had been efficiently enforced, would not have given the American workingman any real protection against cheap foreign labor. The incoming tide of foreign immigration has been rising and the civic quality of the immigrant has visibly declined. The free lands which formerly attracted the best class of European immigrants are now practically a thing of the past, and with the disappearance of this opportunity for remunerative self-employment the last support of high wages has been removed. With unrestricted immigration the American laboring man must soon be deprived of any economic advantage which he has heretofore enjoyed over the laboring classes of other countries. There has been one notable exception to this immigration policy. The invasion of cheap Asiatic labor upon the Pacific coast aroused a storm of protest from the laboring population, which compelled Congress to pass the Chinese Exclusion Act. But this legislation, while shutting out Chinese laborers, has not checked the immigration from other countries where a low standard of living prevails. In fact the most noticeable feature of the labor conditions in this country has been the continual displacement of the earlier and better class of immigrants and native workers by recent immigrants who have a lower standard of living and are willing to work for lower wages. This has occurred, too, in some of the industries in which the employer has been most effectually protected against the competition of foreign goods.[181] The time has certainly arrived when the policy of protection ought to be more broadly considered and dealt with in a public-spirited and statesman-like manner. If it is to be continued as a national policy, the interests of employees as well as employers must be taken into account. The chief evils of the protective system have been due to the fact that it has been too largely a class policy, and while maintained in the interest of a class, it has been adroitly defended as a means of benefiting the classes who derived little or no benefit--who were, indeed, often injured by our tariff legislation. The large capitalist may grow eloquent in defense of that broad humanitarian policy under which the weak, the oppressed, and the ignorant of all nations are invited to come among us and share in the economic and political opportunities and privileges of American citizens. Such high-sounding and professedly disinterested cosmopolitanism appeals to a certain class of sentimental believers in democracy. It does not appeal, however, to any one who fully understands present-day industrial and political conditions. This capitalistic sympathy for the weak and the oppressed of other nations may be regarded by some as the expression of a broader patriotism, but its tap-root is class selfishness--the desire to secure high profits through maintaining active competition among laborers. As a matter of fact, all legislation does, and always must, appeal to the interest of those without whose influence and support it could not be enacted, and nothing is ever gained for true progress by making the pretence of disinterested love for humanity the cloak for class greed. The desire of the employing class for cheap labor has been responsible for the greatest dangers which menace this country to-day. It was the demand for cheap labor which led to the importation of the African slave and perpetuated the institution of slavery until, with the voluntary immigration of foreign labor, it was no longer an economic necessity from the standpoint of the employing class. Indeed the very existence of slavery, by discouraging immigration, tended to limit the supply of labor, and by so doing, to cripple all enterprises in which free labor was employed. In this sense the abolition of slavery was the result of an economic movement. It was to the advantage of the employing class as a whole who found in the free labor hired under competitive conditions a more efficient and cheaper instrument of production than the slave whom they had to buy and for whose support they were responsible. Had it not been for this eagerness on the part of the employing class to secure cheap labor at first through the importation of the African slave and later through the active encouragement of indiscriminate foreign immigration, we would not now have the serious political, social and economic problems which owe their existence to the presence among us of vast numbers of alien races who have little in common with the better class of American citizens. This element of our population, while benefiting the employing class by keeping wages down, has at the same time made it more difficult to bring about that intelligent political co-operation so much needed to check the greed of organized wealth. The limitation of governmental powers in the Constitution of the United States was not designed to prevent all interference in business, but only such as was conceived to be harmful to the dominant class. The nature of these limitations as well as the means of enforcing them indicate their purpose. The provision relating to direct taxes is a good example. The framers of the Constitution were desirous of preventing any use of the taxing power by the general government that would be prejudicial to the interests of the well-to-do classes. This is the significance of the provision that no direct taxes shall be laid unless in proportion to population.[182] The only kind of a direct tax which the framers intended that the general government should have power to levy was the poll tax which would demand as much from the poor man as from the rich. This was indeed one of the reasons for opposing the ratification of the Constitution. "Many specters," said Hamilton, "have been raised out of this power of internal taxation to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain.... "As little friendly as I am to the species of imposition [poll-taxes], I still feel a thorough conviction that the power of having recourse to it ought to exist in the Federal government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them."[183] It is interesting to observe that Hamilton's argument in defense of the power to levy poll-taxes would have been much more effective if it had been urged in support of the power to levy a direct tax laid in proportion to wealth. But this kind of a tax would, in the opinion of the framers, have placed too heavy a burden upon the well-to-do. Hence they were willing to deprive the general government of the power to levy it even at the risk of crippling it in some great emergency when there might be urgent need of a large revenue. This is not strange, however, when we remember that it was the property-owning class that framed and secured the adoption of the Constitution. That they had their own interests in view when they confined the general government practically to indirect taxes levied upon articles of general consumption, and forbade direct taxes levied in proportion to wealth, seems highly probable. It appears, then, that the recent decision of the United States Supreme Court declaring the Federal Income Tax unconstitutional merely gave effect to the original spirit and purpose of this provision. The disposition to guard the interests of the property-holding class rather than to prevent legislation for their advantage is also seen in the interpretation which has been given to the provision forbidding the states to pass any laws impairing the obligation of contracts. The framers of the Constitution probably did not have in mind the extended application which the courts have since made of this limitation on the power of the states. Perhaps they intended nothing more than that the states should be prevented from repudiating their just debts. But whatever may have been the intention of the framers themselves, the reactionary movement in which they were the recognized leaders, finally brought about a much broader and, from the point of view of the capitalist class, more desirable interpretation of this provision. There is evidence of a desire to limit the power of the states in this direction even before the Constitutional Convention of 1787 assembled. The legislature of Pennsylvania in 1785 passed a bill repealing an act of 1782 which granted a charter to the Bank of North America. James Wilson, who is said to have suggested the above-mentioned clause of the Federal Constitution, made an argument against the repeal of the charter, in which he claimed that the power, or at least the right of the legislature, to modify or repeal did not apply to all kinds of legislation. It could safely be exercised, he thought, in the case of "a law respecting the rights and properties of all the citizens of the state." "Very different," he says, "is the case with regard to a law, by which the state grants privileges to a congregation or other society.... Still more different is the case with regard to a law by which an estate is vested or confirmed in an individual: if, in this case, the legislature may, at discretion, and without any reason assigned, divest or destroy his estate, then a person seized of an estate in fee-simple, under legislative sanction, is, in truth, nothing more than a solemn tenant at will.... "To receive the legislative stamp of stability and permanency, acts of incorporation are applied for from the legislature. If these acts may be repealed without notice, without accusation, without hearing, without proof, without forfeiture, where is the stamp of their stability?... If the act for incorporating the subscribers to the Bank of North America shall be repealed in this manner, a precedent will be established for repealing, in the same manner, every other legislative charter in Pennsylvania.... Those acts of the state, which have hitherto been considered as the sure anchors of privilege and of property, will become the sport of every varying gust of politics, and will float wildly backwards and forwards on the irregular and impetuous tides of party and faction."[184] In 1810 the case of Fletcher v. Peck[185] was decided in the Supreme Court of the United States. Chief Justice Marshall, in delivering the opinion of the court, said: "The principle asserted is that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature can not abridge the powers of a succeeding legislature. The correctness of this principle, so far as respects general legislation, can never be controverted. But if an act be done under a law, a succeeding legislature can not undo it.... "When then a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law can not devest those rights; ... "It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; ... "It is, then, the unanimous opinion of the court, that, in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the state of Georgia was restrained, either by general principles, which are common to our free institutions, or by the particular provisions of the Constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void." It is evident from this opinion that the court would have been disposed at that time to declare state laws impairing property rights null and void, even if there had been nothing in the Constitution of the United States to justify the exercise of such a power. Justice Johnson, in a separate opinion, said: "I do not hesitate to declare that a state does not possess the power of revoking its own grants. But I do it on a general principle, on the reason and nature of things: a principle which will impose laws even on the Deity.... "I have thrown out these ideas that I may have it distinctly understood that my opinion on this point is not founded on the provision in the Constitution of the United States, relative to laws impairing the obligation of contracts." It was contended in this case that the state of Georgia had the right to revoke the grant on the ground that it was secured by corrupt means. This argument evidently failed to appeal to the court. It was referred to by Justice Johnson who said "as to the idea that the grants of a legislature may be void because the legislature are corrupt, it appears to me to be subject to insuperable difficulties.... The acts of the supreme power of a country must be considered pure...." It is interesting to observe that the Federalist judges in the early years of our history under the Constitution did not deem it necessary to find a constitutional ground for decisions of this sort. But with the overthrow of the Federalist party and the progress of belief in popular government, there is an evident disposition on the part of the court to extend the protection of the Federal Constitution to all the powers which it claimed the right to exercise. Thus in the Dartmouth College case, decided in 1819, the United States Supreme Court appears to have abandoned its earlier position and to have recognized the Constitution as the source of its power to annul state laws. "It is under the protection of the decision in the Dartmouth College case," says Judge Cooley, "that the most enormous and threatening powers in our country have been created; some of the great and wealthy corporations actually having greater influence in the country at large, and upon the legislation of the country than the states to which they owe their corporate existence. Every privilege granted or right conferred--no matter by what means or on what pretence--being made inviolable by the Constitution, the government is frequently found stripped of its authority in very important particulars, by unwise, careless, or corrupt legislation; and a clause of the Federal Constitution, whose purpose was to preclude the repudiation of debts and just contracts, protects and perpetuates the evil."[186] Any government framed and set up to guard and promote the interests of the people generally ought to have full power to modify or revoke all rights or privileges granted in disregard of the public welfare. But the Supreme Court, while permitting the creation or extension of property rights, has prevented the subsequent abridgment of such rights, even when the interests of the general public demanded it. The effect of this has been to make the corporations take an active part in corrupting state politics. Special legislation was not prohibited. In fact, it was a common way of creating property rights. If a bank, an insurance company, or a railway corporation was organized, it was necessary to obtain a charter from the legislature which defined its powers and privileges. The corporation came into existence by virtue of a special act of the legislature and could exercise only such powers and enjoy only such rights and privileges as that body saw fit to confer upon it. The legislature might refuse to grant a charter, but having granted it, it became a vested right which could not be revoked. The charter thus granted by the legislature was a special privilege. In many instances it was secured as a reward for political services by favorites of the party machine, or through the corrupt expenditure of money or the equally corrupt distribution of stock in the proposed corporation among those who controlled legislation. Not only did this system invite corruption in the granting of such charters, but it also created a motive for the further use of corrupt means to keep possible competitors from securing like privileges. It was worth the while to spend money to secure a valuable privilege if when once obtained the legislature could not revoke it. And it was also worth the while to spend more money to keep dangerous competitors out of the field if by so doing it could enjoy some of the benefits of monopoly. By thus holding that a privilege granted to an individual or a private corporation by special act of the legislature was a contract which could not be revoked by that body, the courts in their effort to protect property rights opened the door which allowed corporation funds to be brought into our state legislatures early in our history for purposes of corruption. But little attention has been given as yet to this early species of corruption which in some of the states at least assumed the proportions of a serious political evil. "During the first half century banking in New York," says Horace White, "was an integral part of the spoils of politics. Federalists would grant no charters to Republicans, and Republicans none to Federalists. After a few banks had been established they united, regardless of politics, to create a monopoly by preventing other persons from getting charters. When charters were applied for and refused, the applicants began business on the common-law plan. Then, at the instigation of the favored ones, the politicians passed a law to suppress all unchartered banks. The latter went to Albany and bribed the legislature. In short, politics, monopoly, and bribery constitute the key to banking in the early history of the state."[187] The intervention of the courts which made the conditions above described possible, while ostensibly limiting the power of the state legislature, in reality enlarged and extended it in the interest of the capital-owning class. It gave to the state legislature a power which up to that time it had not possessed--the power to grant rights and privileges of which the grantees could not be deprived by subsequent legislation. Before the adoption of the Federal Constitution no act of the legislature could permanently override the will of the qualified voters. It was subject to modification or repeal at the hands of any succeeding legislature. The voters of the state thus had what was in effect an indirect veto on all legislative acts--a power which they might exercise through a subsequent legislature or constitutional convention. But with the adoption of the Constitution of the United States the Federal courts were able to deprive them of this power where it was most needed. This removed the only effective check on corruption and class legislation, thus placing the people at the mercy of their state legislatures and any private interests that might temporarily control them. The power which the legislatures thus acquired to grant charters which could not be amended or repealed made it necessary for the people to devise some new method of protecting themselves against this abuse of legislative authority. The outcome of this movement to re-establish some effective popular check on the legislature has taken the form in a majority of the states of a constitutional amendment by which the right is reserved to amend or repeal all laws conferring corporate powers. Such constitutional changes provide no remedy, however, for the evils resulting from legislative grants made previous to their adoption. The granting of special charters is now also prohibited in many states, the constitution requiring that all corporations shall be formed under general laws. These constitutional changes may be regarded as in the interest of the capitalist class as a whole, whose demand was for a broader and more liberal policy--one which would extend the advantages of the corporate form of organization to all capitalists in every line of business. But even our general corporation laws have been enacted too largely in the interest of those who control our business undertakings and without due regard to the rights of the general public. A study of our political history shows that the attitude of the courts has been responsible for much of our political immorality. By protecting the capitalist in the possession and enjoyment of privileges unwisely and even corruptly granted, they have greatly strengthened the motive for employing bribery and other corrupt means in securing the grant of special privileges. If the courts had all along held that any proof of fraud or corruption in obtaining a franchise or other legislative grant was sufficient to justify its revocation, the lobbyist, the bribe-giver, and the "innocent purchaser" of rights and privileges stolen from the people, would have found the traffic in legislative favors a precarious and much less profitable mode of acquiring wealth. CHAPTER XIII THE INFLUENCE OF DEMOCRACY UPON THE CONSTITUTION The distinguishing feature of the Constitution, as shown in the preceding chapters of this book, was the elaborate provisions which it contained for limiting the power of the majority. The direction of its development, however, has in many respects been quite different from that for which the more conservative of its framers hoped.[188] The checks upon democracy which it contained were nevertheless so skilfully contrived and so effective that the progress of the popular movement has been more seriously hampered and retarded here than in any other country where the belief in majority rule has come to be widely accepted. In some important respects the system as originally set up has yielded to the pressure of present-day tendencies in political thought; but many of its features are at variance with what has come to be regarded as essential in any well-organized democracy. It is not so much in formal changes made in the Constitution as in the changes introduced through interpretation and usage that we must look for the influence of nineteenth-century democracy. In fact, the formal amendment of the Constitution, as shown in Chapter IV, is practically impossible. But no scheme of government set up for eighteenth-century society could have survived throughout the nineteenth and into the twentieth century without undergoing important modifications. No century of which we have any knowledge has witnessed so much progress along nearly every line of thought and activity. An industrial and social revolution has brought a new type of society into existence and changed our point of view with reference to nearly every important economic and political question. Our constitutional and legal system, however, has stubbornly resisted the influence of this newer thought, although enough has been conceded to the believers in majority rule from time to time to keep the system of checks from breaking down. Some of the checks which the founders of our government established no longer exist except in form. This is true of the electoral college through which the framers of the Constitution hoped and expected to prevent the majority of the qualified voters from choosing the President. In this case democracy has largely defeated the end of the framers, though the small states, through their disproportionately large representation in the electoral college, exert an influence in Presidential elections out of proportion to their population. The most important change in the practical operation of the system has been accomplished indirectly through the extension of the suffrage in the various states. Fortunately, the qualifications of electors were not fixed by the Federal Constitution. If they had been, it is altogether probable that the suffrage would have been much restricted, since the right to vote was at that time limited to the minority. The state constitutions responded in time to the influence of the democratic movement and manhood suffrage became general. This placed not only the various state governments but also the President and the House of Representatives upon a basis which was popular in theory if not in fact. Much remained and still remains to be done in the matter of perfecting the party system and the various organs for formulating and expressing public opinion with reference to political questions, before there will be any assurance that even these branches of the general government will always represent public sentiment. There is one serious defect in the method of choosing the President. The system makes possible the election of an executive to whom a majority and even a large majority of the voters might be bitterly opposed. From the point of view of the framers of the Constitution the choice of a mere popular favorite was undesirable and even dangerous; but according to the view now generally accepted the chief executive of the nation should represent those policies which have the support of a majority of the people. It is possible that the candidate receiving a majority of all the votes cast may be defeated,[189] while it often happens that the successful candidate receives less than a majority of the popular vote.[190] When three or more tickets are placed in the field, the candidate having a majority in the electoral college may fall far short of a majority of the popular vote. This was the case when Lincoln was elected President in 1860. There were four candidates for the Presidency, and while Lincoln received a larger popular vote than any other one candidate, he received less than the combined vote for either Douglas and Breckenridge, or Douglas and Bell. In fact, he received less than two-fifths of the total popular vote. It is easily seen that a system is fraught with grave danger, especially in times of bitter sectional and party strife, which makes possible the election of a minority President. At such times opposition to governmental policies is most likely to assume the form of active resistance when a minority secures control of the government. In other words, a majority is more likely to resist a minority than a minority is to resist a majority. This would be true especially in a country where the people generally accept the principle of majority rule. It can not be claimed that Lincoln was, or that the South regarded him as, the choice of a majority of the people. A different system which would have precluded the election of a President who did not have a clear majority of the popular vote might have done much toward discouraging active resistance on the part of the Southern States. No one, in fact, has stated the case against minority rule more clearly or forcefully than Lincoln himself. In a speech made in the House of Representatives January 12, 1848, on "The War with Mexico," he said: "Any people anywhere, being inclined and having the power, have the _right_ to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right--a right which, we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that _can may_ revolutionize, and make their _own_ of so much of the territory as they inhabit. More than this, a _majority_ of any portion of such people may revolutionize, putting down a _minority_, intermingled with, or near about them, who may oppose their movements. Such minority was precisely the case of the Tories of our own Revolution."[191] This was quoted in defense of the right of secession by Alexander H. Stephens in his "Constitutional View of the Late War between the States."[192] The chief remaining obstacles to popular legislation are the Senate and the Supreme Court. Some means must be found to make these two branches of the government responsible to the majority before the government as a whole can be depended upon to give prompt and effective expression to public opinion. The Senate presents the most difficult problem for democracy to solve. The present method of choosing senators is altogether unsatisfactory. It has resulted in making the upper house of our Federal legislature representative of those special interests over which there is urgent need of effective public control. It has also had the effect of subordinating the making of laws in our state legislatures to that purely extraneous function--the election of United States senators. The exercise of the latter function has done more than anything else to confuse state politics by making it necessary for those interests that would control the United States Senate to secure the nomination and election of such men to the state legislatures as can be relied upon to choose senators who will not be too much in sympathy with anti-corporation sentiments. The Senate has fulfilled in larger measure than any other branch of the government the expectation of the founders. It was intended to be representative of conservatism and wealth and a solid and enduring bulwark against democracy. That it has accomplished this purpose of the framers can scarcely be denied. But the political beliefs of the framers are not the generally accepted political beliefs of to-day. It is immaterial to the people generally that the attitude of the Senate on public questions is in line with the purpose for which that body was originally established. The criticism of the Senate's policy expressed in the phrase "all brakes and no steam"[193] indicates not so much a change in the character and influence of that body as in the attitude of the people toward the checks which the Constitution imposed upon democracy. Conservatism has always been characteristic of the United States Senate, which, as Sir Henry Maine says, is "the one thoroughly successful institution [upper house] which has been established since the tide of modern democracy began to run."[194] Measuring success by the degree of resistance offered to the will of the majority, as this writer does, the conclusion is correct. This is the standard of judgment which the framers of the Constitution would have applied, but it is not the generally accepted standard according to which the success of that body would be judged to-day. We have now come to accept the view that every organ of government must be approved or condemned according as it furthers or thwarts the ends of democracy. Applying this test, the conclusion is inevitable that the Senate as now constituted is out of harmony with present-day political thought. What, then, can be done to make that body an organ of democracy? There are three distinct evils in the Senate as it is now organized. The first pertains to the irresponsibility of its members due to their method of election and long term of office. But inasmuch as this could be remedied only by a constitutional amendment, it is not likely that anything short of a revolutionary public sentiment in favor of such change could compel the preliminary two-thirds majority in that body which the Constitution makes necessary. A body made up of men who for the most part realize that they owe their political advancement to a minority would naturally be loth to support a change in the system which would place the election to membership in that body directly in the hands of the people. It is improbable that any such reform can be accomplished at present. Any such direct attack upon the system would under present conditions be almost certain to fail. Some method of accomplishing this object must be employed which does not require the co-operation of the Senate, and which, without any constitutional amendment, really deprives the legislature of the power to select United States Senators as the electoral college has been deprived of all power in the choice of President. The second defect in the Senate is the equal representation of the states in that body. It is not only absurd but manifestly unjust that a small state like Nevada should have as much representation in the controlling branch of Congress as New York with more than one hundred and seventy-one times as much population. A more inequitable distribution of representation it would be difficult to imagine; yet this evil could not be removed even by constitutional amendment, since this matter does not come within the scope of the amending power, unless the state or states affected by such proposed change should all give their assent. The third defect in the Senate is the extraordinary power which the Constitution has conferred upon it. If it were a directly elected body whose members were apportioned among the states according to population, the overshadowing influence of the Senate would not be a serious matter. But, as shown in Chapter VI, that body controls jointly with the President the appointing and the treaty-making power. Moreover, the latter power may be exercised with reference to many things concerning which Congress has or could legislate. The Senate and the President may thus repeal what Congress has enacted. We thus have the peculiar situation that a law enacted with the concurrence of the House may be repealed without its consent, while a law which takes the form of a treaty can not be repealed without the consent of the Senate. Theoretically, the Constitution could be amended so as to diminish the power of the Senate, but as a matter of fact no change in the Constitution would be more difficult to bring about. Any proposal to reduce the power of the Senate would jeopardize the prestige and influence of the smaller states no less than the proposal to deprive them of equal representation in that body. The small states approach political equality with the large, just in proportion as the influence of the Senate is a dominating factor in the policy of the government. Any attack on this equality of representation would ally the small states together in defense of this privilege, and make it impossible to obtain the assent of three-fourths of the states to any such change. There is still another respect in which this equality of representation in the Senate is unfortunate. It tends to make it easier for corporation influences to dominate that body. This arises out of the fact that it is more difficult and more expensive to control the election of senators in a large than in a small state. This tends to make the small states a favorite field for political activity on the part of those corporations which wish to secure or prevent Federal legislation. The Supreme Court is generally regarded as the most effective of all our constitutional checks upon democracy. Still, if the Senate were once democratized, it would not be a difficult matter to bring the Federal judiciary into line with the popular movement. In fact, the means employed in England to subordinate the House of Lords to the Commons indicates the method which might be employed here to subordinate the Supreme Court to Congress. The Ministry in England, virtually appointed by and responsible to the majority in the House of Commons, secured control of the prerogatives of the Crown, one of which was the right to appoint peers. No sooner did the House of Commons come into possession of this power through a responsible Ministry than it realized the possibility of making use of it to overcome opposition to their policies on the part of the Lords. If the House of Lords did not yield to the House of Commons, the latter, through its Cabinet, could create new peers in sufficient number to break down all resistance in that body. The possession of that power by the Commons and the warning that it would be used if necessary has been sufficient to ensure compliance on the part of the Lords. In a similar manner Congress and the President could control the Supreme Court. The Constitution does not fix the number of Supreme judges. This is a matter of detail which was left to Congress, which may at any time provide for the addition of as many new judges to the Supreme Court as it may see fit. Thus Congress, with the co-operation of the President, could control the policy of the Supreme Court in exactly the same way and to the same extent that the House of Commons controls the House of Lords. That the Federalists who were in possession of our general government during the early years of its history appreciated the advantage of controlling the policy of the Supreme Court was pointed out in the chapter on the Federal judiciary. They accomplished their purpose, however, by selecting for membership in that body, men whose political record was satisfactory and whose views concerning judicial functions were in harmony with the general plan and purpose of the Federalist party. In fact, the scheme of government which they set up contemplated no such possibility as the democratization of the Executive or the Senate. If their expectation in this regard had been fully realized, a judicious use of the appointing power would have been all that was necessary to ensure a conservative court. Perhaps the framers of the Constitution did not imagine that the power to increase the number of judges would ever be needed to enable the President and Senate to secure the co-operation of the Supreme Court. At any rate, the power given to Congress and the President to enlarge the membership of that body was not, in the opinion of the framers, a power that could ever be employed against the conservative class, since the radical element, it was believed, would never be able to control more than one branch of the government, the House of Representatives. But, although it can not be determined whether the Federalists had in mind the possibility of using this power to control the policy of the court, it should be noted that, according to their view of the government, it might be used by, but not against, the conservative class. Nor is it likely that they would have hesitated to use this power had it been necessary to the success of their plan. The failure of the Federalists to check the growth of democratic ideas and the success of the more liberal party in bringing about the election of Jefferson alarmed the conservative class. It was seen that if all other branches of the government should come under the influence of the liberal movement, the judicial check could be broken down. To guard against this danger, an effort was made by the conservative interests to mold a public sentiment that would protect the Supreme Court against political interference at the hands of those who might wish to override judicial opposition to radical measures. This took the form of what might be called the doctrine of judicial infallibility. The judiciary in general and the Supreme Court in particular were held up as the guardian and protector of American liberty. The security of the people was represented as bound up with the freedom of the courts from political interference. At the same time it was proclaimed that the Supreme Court exercised only judicial functions and that any attempt on the part of the President or Congress to interfere with them would make that body the organ of faction or class. But, as a matter of fact, the danger which they foresaw to the Supreme Court was not a danger growing out of its judicial, but out of its legislative functions. It was not because the Supreme Court was a purely judicial body, but because it exercised a supremely important legislative function, that they were so solicitous to guard it against anything approaching popular control. The threefold division of governmental powers into legislative, executive, and judicial, as shown in a preceding chapter, has no logical basis. There are, as Professor Goodnow has said,[195] but two functions of government, that of expressing and that of executing the will of the state. The Supreme Court, in so far as it is a purely judicial body--that is, a body for hearing and deciding cases--is simply a means of executing the will of the state. With the performance of this function there was little danger that any democratic movement would interfere. Nor was this the danger which the conservative classes really feared, or which they wished to guard against. What they desired above all else was to give the Supreme Court a final voice in expressing the will of the state, and by so doing to make it operate as an effective check upon democratic legislation. It is this power of expressing the will of the state which our conservative writers defend as the pre-eminently meritorious feature of our judicial system. Indeed, this is, in the opinion of the conservative class, the most important of all the checks on democracy. Any suggestion of using the power vested in Congress and the President to reorganize the Supreme Court is naturally enough denounced as the most dangerous and revolutionary of political heresies. It is not probable, however, that the Supreme Court would much longer be permitted to thwart the will of the majority if the other branches of the Federal government were thoroughly imbued with the belief in democracy. As explained in Chapter V, the Constitution contains no hint of this power to declare acts of Congress null and void. It was injected into the Constitution, as the framers intended, by judicial interpretation, and under the influence of a thoroughly democratic President, and Congress might be eliminated in the same way. The most important feature of the Constitution from the standpoint of democracy is the provision contained in article V, requiring Congress "on the application of the legislatures of two-thirds of the several states" to "call a convention for proposing amendments." The progress of democracy in the various state governments is likely to compel resort to this method of changing the Federal Constitution if the Senate much longer persists in disregarding the will of the people. In fact, this is, in the opinion of the conservative class, the one fatal defect in the scheme of constitutional checks established by our forefathers. It in reality opens the door to the most revolutionary changes in our political arrangements. Congress can not refuse to call a general constitutional convention when two-thirds of the states demand it, and this convention might propose an entirely new constitution framed in accord with the most advanced ideas of democracy. It might also follow the precedent, set by the framers of our present Constitution and prescribe an entirely new method of ratification as our more conservative forefathers did when they disregarded the then existing provision governing the amendment of the Articles of Confederation. It is true that they ignored the established method of amending as well as the instructions from the states by which they were appointed, in order to bring about the adoption of a political system more acceptable to the conservative classes. But what has been done in the interest of the minority may also be done in the interest of the majority. A new Federal constitution might be framed which would eliminate the whole system of checks on the people and provide for direct ratification by a majority of the voters, as has already been done in the case of most of our state constitutions. If the Constitution does not yield sufficiently to satisfy the popular demand for reform, it is possible that the reactionary forces will, in their anxiety to defeat moderate democratic measures, arouse sufficient opposition on the part of the people to compel sweeping constitutional changes. The fact that two-thirds of the states can require Congress to call a convention of all the states to propose changes in the Constitution is a matter of no small importance. True, even this method of initiating changes in the system would be very difficult, since the smaller states would naturally fear an attempt to establish a more equitable plan of representation, and the special and privileged interests of all sorts which have found the present system satisfactory would use every means at their command to prevent the states from resorting to this power. It is possible, if not indeed probable, that a serious and concerted attempt by the people to force changes in the Constitution by this method would sufficiently alarm the opponents of democracy to convince them of the wisdom and expediency of such amendments as would appease the popular clamor for reform without going too far in the direction of majority rule. To prevent the complete overthrow of the system, which might be the outcome if the states were compelled to assume the initiative in amending the Constitution, the minority may accept the inevitable, and, choosing what appears to them to be the lesser of two evils, allow Congress to propose such amendments as the people are determined to bring about. It is in the state and in the municipal governments, however, that the influence of democracy has been greatest. Yet even here much still remains to be done before the practical operation of the system will be in accord with the principle of majority rule. Direct election and universal suffrage have not under our scheme of checks and balances secured any large measure of political responsibility. The logical result of this system has been the growing distrust of public officials and especially of such representative bodies as state legislatures and city councils. This lack of confidence in the local governmental machinery, due to the irresponsibility of public officials, is certain to lead to the adoption of radical changes in the organization of our state and municipal governments. Either the tenure of public officials will be made to depend in some more effective way upon the will of the majority, or the power which they now have and which they often use to further private interests at the expense of the people will be taken from them and conferred directly upon the majority of the voters. The movement to give the people greater control over the officials whom they have elected is really just beginning. Heretofore the effort to make the government truly representative of the people has been mainly along the line of broadening the suffrage and perfecting the method of voting. This, the people are just beginning to realize, does not guarantee political responsibility. The secret ballot under present conditions is important, but it is by no means adequate. The right of the majority to elect one or the other of two men, both of whom may have been nominated through the machinations of a corrupt and selfish minority, does not give the people any real control over the officials whom they vote into office. What they need, to ensure responsibility, is the power to make a real, not a merely nominal choice, coupled with the power to remove in case the person selected should lose the confidence of the majority. The plan for depriving the minority of the power to control the selection of public officials, which is now rapidly gaining adherents among the advocates of political reform, is the direct primary. That some such change in our method of nominating candidates is necessary to make the so-called popular election of public officials anything more than an empty form is apparent to any intelligent student of American politics. But any proposal to deprive the minority of this power must encounter the determined opposition of the party machine and the various private interests which now prosper at the expense of the people. These opponents of political reform are continually declaiming against the corruption and incapacity of the people and trying to make it appear that a government can be no better than its source--those who elect the public officials. That a government is not likely to be better than the people whom it represents may be admitted. But this is aside from the question. Our present system in its practical operation is not a democracy. It is not truly representative, but misrepresentative. To prevent this evil--this betrayal of public trust in the interest of the minority--is the aim of the direct primary. That it will go far toward breaking the power of the machine may be safely predicted, and that it will be generally adopted as soon as the people realize its significance there is scarcely room for doubt. But while the direct nomination of candidates would doubtless go far toward making public officials respect the wishes of the people, it would not provide adequate protection against misconduct in office under our plan of election for a definite term without any effective power of removal. A corrupt official may often find that by favoring private interests at the expense of the people who have elected him, he can afford to forfeit all chance of re-election. The independence of public officials which our forefathers were so anxious to secure has been found to be a fruitful source of corruption. A realization of this fact has been responsible for the introduction of the recall system under which the people enforce official responsibility through their power to remove by a vote of lack of confidence in the form of a petition signed by a certain percentage of the voters. Such an expression of popular disapproval has the effect of suspending from office the offending official who can regain the office only by offering himself again as a candidate at an election called for that purpose. This is as yet merely an innovation in municipal government, but if it proves to be satisfactory, the principle will doubtless be incorporated, not only in municipal charters generally, but in our state constitutions as well. Simultaneous with this movement to make government really representative by enforcing official responsibility is another movement which also aims to make the will of the majority supreme, but by a totally different method of procedure. This is the movement looking toward the establishment of the initiative and the referendum. Instead of leaving power in the hands of representative bodies and seeking to make them responsible as the first plan of reform contemplates, the second plan would guard representative bodies against temptation by divesting them of all powers which they are liable to misuse and conferring them directly upon the people. This is merely an attempt to get back to the basic idea of the old town meeting, where local measures were directly proposed and adopted or rejected by the people. It is, moreover, the logical outcome of the struggle which the advocates of majority rule have been and are now making to secure control of our state and municipal governments. The constitutional checks on democracy have greatly obstructed and delayed the progress of political reform. Some of them have been removed, it is true, but enough still remain to make it possible for the minority to defeat the will of the majority with reference to many questions of vital importance. It must be admitted, when we review the course of our political development, that much progress has been made. But the evolution has been toward a direct rather than toward a representative democracy. The reason for this is not far to seek. The system of checks which limited the power of the majority made the legislature largely an irresponsible body; and since it could not be trusted, it was necessary to take out of its hands the powers it was most likely to abuse. The legislature was first deprived of its power to enact constitutional legislation, though it was allowed to retain an effective veto on such changes through its refusal to take the initiative. With the progress of the democratic movement some of the legislative powers most frequently abused were, like the state constitution itself, made subject to popular ratification. This submission of constitutional and certain kinds of statutory legislation to the people before it could go into effect merely gave them to this extent a veto on the recommendations of their legislatures and constitutional conventions. There was still no way to prevent the legislature from misrepresenting the people with respect to those measures which did not require popular ratification. The tendency was to diminish the power of the legislature by including in the constitution itself much that might have taken the form of ordinary statutory legislation, as well as by requiring that some of the more important acts passed by the legislature should receive the direct assent of the voters. This merely gave to the people a partial negative. It enabled them to reject some measures which they did not approve of, but not all, since in those cases where popular ratification was not required, public sentiment could be disregarded by the law-making body. Moreover, the people did not have the right to initiate measures--a right which is indispensable if the people are to have any real power to mold the policy of the state. The logical outcome of this line of development is easily seen. As pointed out in an earlier part of this volume, constitutional development first limits and eventually destroys irresponsible power, and in the end makes the responsible power in the state supreme. The prevalent lack of confidence in our state legislatures is no indication of hostility to the principle of representative government; for representative government in the true sense means government that is responsible to the people. The popular movement has in modifying our state and municipal governments merely taken the line of least resistance, and that has involved the transfer of legislative powers to the people themselves. Just how far this movement will go it is impossible to foresee. A government of the representative type, if responsive to public sentiment, would answer all the requirements of a democratic state. It would at the same time be merely carrying out in practice what has long been the generally accepted, if mistaken, view of our political system. The adoption of some effective plan of direct nomination and recall of officials would accomplish much in the way of restoring confidence in legislative bodies. To this extent it would check the tendency to place the law-making power directly in the hands of the people. Popular ratification of all important laws would be unnecessary, if our legislative bodies were really responsible to the people. Nevertheless, the popular veto is a power which the people should have the right to use whenever occasion demands. This would prevent the possibility of legislation in the interest of the minority as now often happens. The popular veto through the referendum is not, however, of itself sufficient. The people need the power to initiate legislation as well as the power to defeat it. The initiative combined with the referendum would make the majority in fact, as it now is in name only, the final authority in all matters of legislation. It is in our state and municipal governments that democracy is likely to win its first victories. The minority, however, will make a desperate struggle to prevent the overthrow of the system which has been and still is the source of its power. The political machine supported by every privileged interest will oppose by every means in its power the efforts of the people to break down the checks upon the majority. To this end we must expect them to make large use in the near future, as they have in the past, of the extraordinary powers exercised by our courts. In fact the courts as the least responsible and most conservative of our organs of government have been the last refuge of the minority when defeated in the other branches of the government. The disposition so generally seen among the opponents of democracy to regard all measures designed to break down the checks upon the majority as unconstitutional points to the judiciary as the chief reliance of the conservative classes. Indeed, the people are beginning to see that the courts are in possession of political powers of supreme importance--that they can, and often do, defeat the will of the majority after it has successfully overcome opposition in all other branches of the government. If the will of the majority is to prevail, the courts must be deprived of the power which they now have to declare laws null and void. Popular government can not really exist so long as judges who are politically irresponsible have power to override the will of the majority. The democratic movement will either deprive the judicial branch of the government of its political powers or subject it to the same degree of popular control applied to other political organs. The extension of direct nomination and recall to the members of our state judiciary would deprive the special interests of the power to use the courts as the means of blocking the way to popular reforms. In any democratic community the final interpreter of the constitution must be the majority. With the evolution of complete popular government, then, the judicial veto must disappear, or the court must become a democratic body. It is through our state governments that we must approach the problem of reforming the national government. Complete control of the former will open the door that leads to eventual control of the latter. Democratize the state governments, and it will be possible even to change the character of the United States Senate. With a state legislature directly nominated and subject to removal through the use of the recall, it will be possible to deprive that body of any real power in the selection of United States senators. Under these conditions the legislature would merely ratify the candidate receiving a majority of the popular vote just as the electoral college has come to ratify the popular choice of the President. In this way direct nomination and direct election of United States senators could be made really effective while at the same time preserving the form but not the substance of election by the state legislatures.[196] This would make possible that much needed separation of state and municipal from national politics. Candidates for the state legislature are now nominated and elected largely with reference to the influence of that body upon the composition of the United States Senate. This has a tendency to, and in fact does, make state legislation in no small degree a by-product of senatorial elections. By divesting the legislature of this function, it would cease to be, as it is now, one of the organs of the Federal government, and in assuming its proper role of a local legislative body, it would become in fact what it has hardly been even in theory--a body mainly interested in formulating and carrying out purely local policies. Experience has shown beyond question that its function as an electoral college for the choice of United States senators is incompatible with the satisfactory exercise of local legislative functions. The latter will be sacrificed in the interest of the former. This of itself is no small evil. For if there is any advantage in our Federal form of government, it is in the opportunity thus provided for the faithful expression of local public opinion in local legislation. But in addition to this subordination of state to national politics, which might be justified under existing conditions on the ground that local measures and local interests should be sacrificed whenever by so doing it would contribute to the success of the larger and more important matters of national policy, it has become a prolific source of corruption. It is not a mere accident that the United States Senate is to-day the stronghold of railway and other corporate interests. Possessing as it does more extended powers than the House of Representatives, it is for that very reason the body in which every privileged interest will make the greatest effort to obtain representation. Moreover, the indirect method of election is one that readily lends itself to purposes of corruption. It is a notorious fact that it is much easier to buy the representatives of the people than to buy the people themselves. Money expended in influencing elections always has in view certain benefits direct or indirect which those who contribute the funds for that purpose expect to receive. Such funds invariably come in the main from special interests which expect to get back from the people more than the amount of their political investments. If they had to deal with the people directly, the latter would demand an equivalent for any concession granted, since it would not be to their advantage to enrich special interests at their own expense. But where the concession can be granted by a small body such as a state legislature, the latter may find that it is to its advantage to co-operate with a selfish and unscrupulous class in furthering purely private interests at the expense of the public. The opportunity for the successful employment of corrupt means is greatly augmented, too, through the confusion of state and national issues under the present system. Many measures may be sacrificed by the party in control of the state legislature under the plea that it is necessary in order to advance the general interests of the party by the election of a United States senator. This possibility of evading responsibility for the nonfulfillment of its duty as a local legislative body would disappear as soon as it is deprived of the part which it now plays in the choice of United States senators. CHAPTER XIV EFFECT OF THE TRANSITION FROM MINORITY TO MAJORITY RULE UPON MORALITY In tracing the influence which the growth of democracy has had upon morality, we should be careful to look below the surface of present-day affairs. The deeper and more enduring social movements and tendencies are not always obvious to the superficial observer. For this reason much that has been written in recent years concerning our alleged decline in public morality is far from convincing. Facts tending to show the prevalence of fraud and corruption in politics and business are not in themselves sufficient to warrant any sweeping conclusions as to present tendencies. Paradoxical as it may seem, an increase in crime and other surface manifestations of immorality, is no proof of a decline, but may as a matter of fact be merely a transient effect of substantial and permanent advance toward higher standards of morality. Before making any comparison between the morality of two different periods, we should first find out whether, in passing from the one period to the other, there has been any change in the accepted ideas of right and wrong. Now, if such is the case, it is manifestly an important factor in the problem--one that should not be ignored; and yet this is just what many writers are doing who imagine that they are proving by statistics a decline in morality. Their error consists in overlooking the one fact of paramount importance, viz., that the accepted standard of morality has itself been raised. We are not judging conduct to-day according to the ideas of civic duty in vogue a century, or even a generation ago. We are insisting upon higher standards of conduct both in politics and in business. Our ideas of right and wrong in their manifold applications to social life have been profoundly changed, and in many respects for the better. We are trying to realize a new conception of justice. Many things which a century ago were sanctioned by law, or at least not forbidden, are no longer tolerated. Moreover, enlightened public opinion now condemns many things which have not yet been brought under the ban of the law. During any period, such as that in which we are now living, when society is rapidly assuming a higher ethical type, it is inevitable that much resistance should be made to the enforcement of the new standard of justice. Old methods of business and old political practices are not easily repressed, even when the public opinion of the community has come to regard them as socially injurious. Forms of conduct once permitted, but now regarded as anti-social, tend to persist in spite of the effort of law and public opinion to dislodge them. The more rapid the ethical progress of society, the more frequent and the more pronounced will be the failure of the morally backward individuals to meet the requirements of the new social standard. At such a time we always see an increase in crimes, misdemeanors and acts which enlightened public opinion condemns. This is due, however, not to any decline in public morality, but to the fact that the ethical progress of society as a whole has been more rapid than that of the offending class. There is another source of error which we must guard against. Social immorality is not always detected even when it exists. Much that is socially immoral both in politics and in business escapes observation. Nevertheless, the agencies for ferreting out and holding up to public condemnation offences against society, are far more efficient and active to-day than they have ever been in the past. Both the corrupt public official and the unscrupulous business man dread the searchlight of public opinion, which is becoming more and more effective as a regulator of conduct with the growth of intelligence among the masses. Nor is it surprising that when the hitherto dark recesses of politics and business are exposed to view, an alarming amount of fraud and corruption should be revealed. We are too prone to forget, however, that publicity is something new--that in our day the seen may bear a much larger proportion to the unseen than it has in the past. What appears, then, to be an increase in business and political immorality may, after all, be largely accounted for as the result of more publicity. Here, again, we see that the facts usually taken to indicate a decline in public morality are susceptible of a very different interpretation. Another feature of present-day society which deserves careful consideration by reason of its far-reaching effect upon public morality is the change now taking place in theological beliefs. Heretofore the church has been by far the most important agency for enforcing conformity to the accepted moral standard. The hope of reward or fear of punishment in the world to come has been the chief support upon which the church has in the past rested its system of social control. But this other-world sanction is now losing its compelling force in consequence of the growing disbelief in the old doctrine of rewards and punishments. The fear of the supernatural, which has its highest development in the savage, steadily declines with the progress of the race. When the general level of intelligence is low, the supernatural sanction is a far more potent means of regulating conduct than any purely temporal authority. But, just in proportion as society advances, the other-world sanction loses its potency and increasing reliance must, therefore, be placed upon purely human agencies. The immediate effect of this change in our attitude toward the hereafter and the supernatural has been to remove or at least to weaken an important restraint upon anti-social tendencies. There is no reason, however, for apprehension as to the final outcome. Society always experiences some difficulty, it is true, in making the transition from the old to the new. In every period of social readjustment old institutions and beliefs lose their efficacy before the new social agencies have been perfected. But if the new is higher and better than the old, the good that will accrue to society will in the long run greatly outweigh any temporary evil. But great as has been the change in our point of view with reference to the church, our attitude toward the state has been even more profoundly changed. We do not have to go very far back into the past to find government everywhere controlled by a king and privileged class. The ascendency of the few was everywhere established by the sword, but it could not be long maintained by force alone. The ignorance of the masses was in the past, as it is now, the main reliance of those who wished to perpetuate minority rule. Fraud and deception have always been an indispensable means of maintaining class ascendency in government. The primitive politician no less than his present-day successor saw the possibility of utilizing the credulity of the masses for the purpose of furthering his own selfish ends. This explains the long-continued survival of that interesting political superstition which for so many centuries protected class rule under the pretended sanction of a God-given right. The growth of intelligence among the masses by discrediting the doctrine of divine right made it necessary to abandon the old defense of class rule. From that time down to the present the disintegration of the old political order has been rapid. Every effort has been made by the defenders of the old system to find some means of justifying and maintaining class rule--a task which is becoming more and more difficult with the growing belief in democracy. At the present time we are in a transition stage. The divine theory of the state, which was the foundation and support of the old system of class rule, is no longer accepted by intelligent people in any civilized country. But class rule still has its advocates, even in the countries that have advanced farthest in the direction of popular government. The opponents of democracy, however, comprise but a small part of the population numerically, yet, owing to their great wealth and effective organization, their influence as a class is everywhere very great. Over against these is arrayed the bulk of the population, who are struggling, though not very intelligently always, to overcome the opposition of the few and make the political organization and the policy of the state a complete and faithful expression of the popular will. No modern state has yet passed entirely through this transition stage. Everywhere the movement toward democracy has been and is now being energetically resisted by those who fear that thoroughgoing popular government would deprive them of economic or political privileges which they now enjoy. Let us not deceive ourselves by thinking that the old system of class rule has been entirely overthrown. No fundamental change in government or any other social institution ever comes about suddenly. Time, often much time, is required for those intellectual and moral readjustments without which no great change in social institutions can be made. And when we remember that only a century ago every government in the Western world was avowedly organized on the basis of minority rule, we can readily understand that society has not yet had sufficient time to outgrow the influence of the old political order. No one can discuss intelligently the question of political morality if he ignores the effect of this struggle between the old system of minority domination and the new system of majority rule. And yet scarcely ever do our text-books or magazine articles dealing with present political evils even so much as allude to this most important fact--the one, indeed, on which hinges our whole system of business fraud and political corruption. We often hear the opinion expressed by people of more than ordinary intelligence that the public immorality so much in evidence in this country is the natural and inevitable result of popular government. This view is industriously encouraged by the conservative and even accepted by not a few of those whose sympathies are with democracy. Yet no conclusion could be more erroneous. It would be just as logical to attribute the religious persecutions of the Middle Ages to the growth of religious dissent. If there had been no dissenters, there would have been no persecution; neither would there have been any reformation or any progress toward a system of religious liberty. Persecution was the means employed to repress dissent and defeat the end which the dissenters had in view. Corruption sustains exactly the same relation to the democratic movement of modern times. It has been employed, not to promote, but to defeat the ends of popular government. No intelligent person should any longer be in doubt as to the real source of corruption. It is to be eradicated, not by placing additional restrictions on the power of the people, but by removing those political restraints upon the majority which now preclude any effective popular control of public officials. We forget that when our government was established the principle of majority rule was nowhere recognized--that until well along into the nineteenth century the majority of our forefathers did not even have the right to vote. The minority governed under the sanction of the Constitution and the law of the land. Then a great popular movement swept over the country, and in the political upheaval which followed, the masses secured the right of suffrage. But universal suffrage, though essential to, does not ensure popular government. The right to vote for some, or even all, public officials, does not necessarily involve any effective control over such officials by, or any real responsibility to, the majority of the voters. Nor is any constitutional system set up to achieve the purpose of minority rule likely to contain those provisions which are necessary for the enforcement of public opinion in the management of political affairs. It was thought by the masses, of course, when they acquired the suffrage that they acquired the substance of political power. Their expectation, however, was but partially realized. Indirect election, official independence, and the rigidity of the constitutional system as a whole, with its lack of responsiveness to popular demands, largely counteracted the results expected from universal suffrage. But the extension of the suffrage to the masses, though having much less direct and immediate influence upon the policy of the state than is generally supposed, was in one respect supremely important. In popular thought it worked a transformation in the form of the government. The old view which recognized the political supremacy of the minority was now largely superseded by the new view that the will of the majority ought to be the supreme law of the land. The minority, however, still continue to exert a controlling influence in most matters of public policy directly affecting their interests as a class, although the extension of the suffrage made the exercise of that control a much more difficult matter and left little room for doubt that actual majority rule would ultimately prevail. A large measure of protection was afforded them through the checks which the Constitution imposed upon the power of the majority. There was no certainty, however, that these checks could be permanently maintained. A political party organized in the interest of majority rule, and supported by a strong public sentiment, might find some way of breaking through or evading the constitutional provisions designed to limit its power. Certain features of the Constitution, however, afforded excellent opportunities for offering effective resistance to the progress of democratic legislation. Entrenched behind these constitutional bulwarks, an active, intelligent and wealthy minority might hope to defeat many measures earnestly desired by the majority and even secure the adoption of some policies that would directly benefit themselves. Here we find the cause that has been mainly responsible for the growth of that distinctively American product, the party machine, with its political bosses, its army of paid workers and its funds for promoting or opposing legislation, supplied by various special interests which expect to profit thereby. With the practical operation of this system we are all familiar. We see the results of its work in every phase of our political life--in municipal, state and national affairs. We encounter its malign influence every time an effort is made to secure any adequate regulation of railways, to protect the people against the extortion of the trusts, or to make the great privileged industries of the country bear their just share of taxation. But the chief concern of those in whose interest the party machine is run is to defeat any popular attack on those features of the system which are the real source of the great power which the minority is able to exert. Try, for example, to secure a constitutional amendment providing for the direct election of United States senators, the adoption of the initiative and the referendum, a direct primary scheme, a measure depriving a city council of the power to enrich private corporations by giving away valuable franchises, or any provision intended to give the people an effective control over their so-called public servants, and we find that nothing less than an overwhelming public sentiment and sustained social effort is able to make any headway against the small but powerfully entrenched minority. Many changes will be required before efficient democratic government can exist. The greatest and most pressing need at the present time, however, is for real publicity, which is the only means of making public opinion effective as an instrument of social control. The movement toward publicity has been in direct proportion to the growth of democracy. Formerly the masses were not regarded by the ruling class as having any capacity for political affairs, or right to criticise governmental policies and methods. With the acceptance of the idea of popular sovereignty, however, the right of the people to be kept informed concerning the management of governmental business received recognition; but practice has lagged far behind theory. Much would be gained for good government by extending publicity to the relations existing between public officials and private business interests. This would discourage the corrupt alliance which now too often exists between unscrupulous politicians and corporate wealth. The public have a right and ought to know to what extent individuals and corporations have contributed money for the purpose of carrying elections. The time has come when the political party should be generally recognized and dealt with as a public agency--as an essential part or indispensable organ of the government itself. The amount of its revenue, the sources from which it is obtained, the purposes for which it is expended, vitally concern the people and should be exposed to a publicity as thorough and searching as that which extends to the financial transactions of the government itself. The enforcement of publicity in this direction would not be open to the objection that the government was invading the field of legitimate private activity, though it would bring to light the relations which now exist between the party machine and private business, and in so doing would expose the true source of much political corruption. But this is not all that the people need to know concerning party management. They can not be expected to make an intelligent choice of public officials, unless they are supplied with all the facts which have a direct bearing upon the fitness of the various candidates. Popular elections will not be entirely successful until some plan is devised under which no man can become a candidate for office without expecting to have all the facts bearing upon his fitness, whether relating to his private life or official conduct, made public. Publicity of this sort would do much toward securing a better class of public officials. Publicity concerning that which directly pertains to the management of the government is not all that will be required. The old idea that all business is private must give way to the new and sounder view that no business is entirely private. It is true that the business world is not yet ready for the application of this doctrine, since deception is a feature of present-day business methods. It is employed with reference to business rivals on the one hand and consumers on the other. This policy of deception often degenerates into down-right fraud, as in the case of secret rebates and other forms of discrimination through which one competitor obtains an undue and perhaps crushing advantage over others; or it may take the form of adulteration or other trade frauds by which the business man may rob the general public. "Deception," says Lester F. Ward, "may almost be called the foundation of business. It is true that if all business men would altogether discard it, matters would probably be far better even for them than they are; but, taking the human character as it is, it is frankly avowed by business men themselves that no business could succeed for a single year if it were to attempt single-handed and alone to adopt such an innovation. The particular form of deception characteristic of business is called _shrewdness_, and it is universally considered proper and upright. There is a sort of code that fixes the limit beyond which this form of deception must not be carried, and those who exceed that limit are looked upon somewhat as a pugilist who 'hits below the belt,' But within these limits every one expects every other to suggest the false and suppress the true, while _caveat emptor_ is lord of all, and 'the devil take the hind-most.'"[197] Under this system the strong, the unscrupulous and the cunning may pursue business tactics which enable them to accumulate wealth at the expense of consumers or business rivals, but which, if generally known, would not be tolerated. The great profits which fraudulent manufacturers and merchants have made out of adulterated goods would have been impossible under a system which required that all goods should be properly labeled and sold for what they really were. Such abuses as now exist in the management of railroads and other corporations could not, or at least would not long be permitted to exist, if the general public saw the true source, character, extent and full effects of these evils. The greatest obstacle to publicity at the present time is the control which corporate wealth is able to, and as a matter of fact does, exercise over those agencies upon which the people must largely depend for information and guidance regarding contemporary movements and events. The telegraph and the newspaper are indispensable in any present-day democratic society. The ownership and unregulated control of the former by the large corporate interests of the country, and the influence which they can bring to bear upon the press by this means, as well as the direct control which they have over a large part of the daily press by actual ownership, does much to hinder the progress of the democratic movement. This hold which organized wealth has upon the agencies through which public opinion is formed, is an important check on democracy. It does much to secure a real, though not generally recognized, class ascendency under the form and appearance of government by public opinion. This great struggle now going on between the progressive and the reactionary forces, between the many and the few, has had a profound influence upon public morality. We have here a conflict between two political systems--between two sets of ethical standards. The supporters of minority rule no doubt often feel that the whole plan and purpose of the democratic movement is revolutionary--that its ultimate aim is the complete overthrow of all those checks designed for the protection of the minority. The only effective means which they could employ to retard the progress of the popular movement involved the use of money or its equivalent in ways that have had a corrupting influence upon our national life. Of course this need not, and as a rule does not, take the coarse, crude form of a direct purchase of public officials. The methods used may in the main conform to all our accepted criteria of business honesty, but their influence is none the less insidious and deadly. It is felt in many private institutions of learning; it is clearly seen in the attitude of a large part of our daily press, and even in the church itself. This subtle influence which a wealthy class is able to exert by owning or controlling the agencies for molding public opinion is doing far more to poison the sources of our national life than all the more direct and obvious forms of corruption combined. The general public may not see all this or understand its full significance, but the conviction is gaining ground that it is difficult to enact and still more difficult to enforce any legislation contemplating just and reasonable regulation of corporate wealth. The conservative classes themselves are not satisfied with the political system as it now is, believing that the majority, by breaking through restraints imposed by the Constitution, have acquired more power than they should be permitted to exercise under any well-regulated government. It is but a step, and a short one at that, from this belief that the organization of the government is wrong and its policy unjust, to the conclusion that one is justified in using every available means of defeating the enactment or preventing the enforcement of pernicious legislation. On the other hand, the supporters of majority rule believe that the government is too considerate of the few and not sufficiently responsive to the wishes of the many. As a result of this situation neither the advocates nor the opponents of majority rule have that entire faith in the reasonableness and justice of present political arrangements, which is necessary to ensure real respect for, or even ready compliance with the laws. Here we find the real explanation of that widespread disregard of law which characterizes American society to-day. We are witnessing and taking part in the final struggle between the old and the new--a struggle which will not end until one or the other of these irreconcilable theories of government is completely overthrown, and a new and harmonious political structure evolved. Every age of epoch-making change is a time of social turmoil. To the superficial onlooker this temporary relaxation of social restraints may seem to indicate a period of decline, but as a matter of fact the loss of faith in and respect for the old social agencies is a necessary part of that process of growth through which society reaches a higher plane of existence. CHAPTER XV DEMOCRACY OF THE FUTURE The growth of the democratic spirit is one of the most important facts in the political life of the nineteenth century. All countries under the influence of Western civilization show the same tendency. New political ideas irreconcilably opposed to the view of government generally accepted in the past are everywhere gaining recognition. Under the influence of this new conception of the state the monarchies and aristocracies of the past are being transformed into the democracies of the future. We of the present day, however, are still largely in the trammels of the old, though our goal is the freedom of the new. We have not yet reached, but are merely traveling toward democracy. The progress which we have made is largely a progress in thought and ideals. We have imbibed more of the spirit of popular government. In our way of thinking, our point of view, our accepted political philosophy, there has been a marked change. Everywhere, too, with the progress of scientific knowledge and the spread of popular education, the masses are coming to a consciousness of their strength. They are circumscribing the power of ruling classes and abolishing their exclusive privileges which control of the state has made it possible for them to defend in the past. From present indications we are at the threshold of a new social order under which the few will no longer rule the many. Democracy may be regarded, according to the standpoint from which we view it, either as an intellectual or as a moral movement. It is intellectual in that it presupposes a more or less general diffusion of intelligence, and moral in that its aim is justice. It could not have appeared or become a social force until man became a thinker and critic of existing social arrangements. It was first necessary that he should acquire a point of view and a habit of thought that give him a measure of intellectual independence and enable him to regard social institutions and arrangements as human devices more or less imperfect and unjust. This thought can not be grasped without its correlative--the possibility of improvement. Hence democracy everywhere stands for political and social reform. Democracy is modern, since it is only within recent times that the general diffusion of knowledge has been possible. The invention of printing, by making possible a cheap popular literature, contributed more than any other one fact to the intellectual and moral awakening which marks the beginning of modern times. The introduction of printing, however, did not find a democratic literature ready for general distribution, or the people ready for its appearance. A long period of slow preparation followed, during which the masses were being educated. Moreover, it is only within recent times that governments would have permitted the creation and diffusion of a democratic literature. For a long time after printing was invented the ruling classes carefully guarded against any use of the newly discovered art that might be calculated to undermine their authority. Books containing new and dangerous doctrines were rigorously proscribed and the people carefully protected from the disturbing influence of such views as might shake their faith in the wisdom and justice of the existing social order.[198] It is perhaps fortunate for the world that the political and social results of printing were not comprehended at the time of its introduction. Had the ruling classes foreseen that it would lead to the gradual shifting of political power from themselves to the masses, it is not unlikely that they would have regarded it as a pernicious innovation. But, as is the case with all great inventions, its full significance was not at first understood. Silently and almost imperceptibly it paved the way for a social and political revolution. The gradual diffusion of knowledge among the people prepared them for the contemplation of a new social order. They began to think, to question and to doubt, and thenceforth the power and prestige of the ruling classes began to decline. From that time on there has been an unceasing struggle between the privileged few and the unprivileged many. We see it in the peaceful process of legislation as well as in the more violent contest of war. After each success the masses have demanded still greater concessions, until now, with a broader outlook and a larger conception of human destiny, they demand the complete and untrammeled control of the state. To the student of political science, then, the spirit and temper, the aims and ideals of the new social order now coming into existence, are a matter of supreme importance. That our industrial system will be profoundly modified may be conceded. Other consequences more difficult to foresee because less direct and immediate, but not necessarily less important, may be regarded as not unlikely. That our ideas of right and wrong, our conception of civic duty, and human character itself will be modified as a result of such far-reaching changes in social relations, may be expected. But while the more remote and indirect consequences of democracy may not be foreseen, some of its immediate results are reasonably certain. The immediate aim of democracy is political. It seeks to overthrow every form of class rule and bring about such changes in existing governments as will make the will of the people supreme. But political reform is regarded not as an end in itself. It is simply a means. Government is a complex and supremely important piece of social machinery. Through it the manifold activities of society are organized, directed and controlled. In a very real sense it is the most important of all social institutions, since from its very nature it is the embodiment of social force, asserting and maintaining a recognized supremacy over all other social institutions and agencies whatever, modifying and adapting them to suit the purposes and achieve the ends of those who control the state. The form or type of government is all-important, since it involves the question as to the proper end of government as well as the proper means of attaining it. Our notion of what constitutes the best political system depends on our general theory of society--our conception of justice, progress and social well-being. As government by the few inevitably results in the welfare of the few being regarded as the chief concern of the state, the widest possible diffusion of political power is the only guarantee that government will seek the welfare of the many. The advocate of democracy does not think that it will be a perfect government, but he does believe that it will in the long run be the best, most equitable and most progressive which it is possible to establish. Government by the few and government by the many stand for widely divergent and irreconcilable theories of progress and social well-being. As the methods, aims, and social ideals of an aristocracy are not those of which a democratic society would approve, it necessarily follows that the purposes of democracy can be accomplished only through a government which the people control. Modern science has given a decided impetus to the democratic movement by making a comfortable existence possible for the many. It has explored the depths of the earth and revealed hidden treasures of which previous ages did not even dream. Inventions and discoveries far-reaching in influence and revolutionary in character have followed each other in rapid succession. With the progress of the sciences and mechanical arts, man's power to control and utilize the forces and materials which nature has so bountifully provided has been enormously increased; and yet, much as has been accomplished in this field of human endeavor, there is reason to believe that the conquest of the material world has but just begun. The future may hold in store for us far greater achievements along this line than any the world has yet seen. It is not surprising, then, that the masses should feel that they have received too little benefit from this marvelous material progress. For just in proportion as the old political system has survived, with its privileged classes, its checks on the people and its class ascendency in government, the benefits of material progress have been monopolized by the few. Against this intrusion of the old order into modern society the spirit of democracy revolts. It demands control of the state to the end that the product of industry may be equitably distributed. As the uncompromising enemy of monopoly in every form, it demands first of all equality of opportunity. Democracy, however, is not a mere scheme for the redistribution of wealth. It is fundamentally a theory of social progress. In so far as it involves the distribution of wealth, it does so as a necessary condition or means of progress, and not as an end in itself. Democracy would raise government to the rank and dignity of a science by making it appeal to the reason instead of the fear and superstition of the people. The governments of the past, basing their claims upon divine right, bear about the same relation to democracy that astrology and alchemy do to the modern sciences of astronomy and chemistry. The old political order everywhere represented itself as superimposed on man from above, and, thus clothed with a sort of divine sanction, it was exalted above the reach of criticism. The growth of intelligence has dispelled one by one the crude political superstitions upon which the old governmental arrangements rested. More and more man is coming to look upon government as a purely human agency which he may freely modify and adapt to his purposes. The blind unthinking reverence with which he regarded it in the past is giving way to a critical scientific spirit. Nor has this change in our point of view in any way degraded government. In stripping it of the pretence of divine authority, it has in reality been placed upon a more enduring basis. In so far as it can no longer claim respect to which it is not entitled we have a guarantee that it can not persistently disregard the welfare of the people. Democracy owes much to modern scientific research. With the advance of knowledge we have gained a new view of the world. Physics, astronomy, and geology have shown us that the physical universe is undergoing a process of continual change. Biology, too, has revolutionized our notion of life. Nothing is fixed and immutable as was once supposed, but change is universal. The contraction of the earth's crust with its resultant changes in the distribution of land and water, and the continual modification of climate and physical conditions generally have throughout the past wrought changes in the form and character of all animal and vegetable life. Every individual organism and every species must change as the world around it changes, or death is the penalty. No form of life can long survive which does not possess in a considerable degree the power of adaptation. Innumerable species have disappeared because of their inability to adjust themselves to a constantly changing environment. It is from this point of view of continuous adjustment that modern science regards the whole problem of life individual and collective. We must not, however, assume that what is true of the lower forms of life is equally true of the higher. In carrying the conceptions of biology over into the domain of social science we must be careful to observe that here the process of adapting life to its environment assumes a new and higher phase. In the lower animal world the life-sustaining activities are individual. Division of labor is either entirely absent or plays a part so unimportant that we may for purposes of comparison assume its absence. The individual animal has free access to surrounding nature, unrestrained by social institutions or private property in the environment. For the members of a given group there is what may be described as equality of opportunity. Hence it follows that the individuals which are best suited to the environment will thrive best and will tend to crowd out the others. But when we come to human society this is not necessarily true. Here a social environment has been created--a complex fabric of laws, usages, and institutions which envelopes completely the life of the individual and intervenes everywhere between him and physical nature. To this all his industrial activities must conform. The material environment is no longer the common possession of the group. It has become private property and has passed under the control of individuals in whose interests the laws and customs of every community ancient and modern have been largely molded. This is a fact which all history attests. Wherever the few acquire a monopoly of political power it always tends to develop into a monopoly of the means and agents of production. Not content with making the physical environment their own exclusive property, the few have often gone farther and by reducing the many to slavery have established and legalized property in human beings themselves. But even when all men are nominally free and legalized coercion does not exist, the fact nevertheless remains that those who control the means of production in reality control the rest. As Mr. W.H. Mallock, the uncompromising opponent of democracy and staunch defender of aristocracy, puts it: "The larger part of the progressive activities of peace, and the arts and products of civilization, result from and imply the influence of kings and leaders in essentially the same sense as do the successes of primitive war, the only difference being that the kings are here more numerous, and though they do not wear any arms or uniforms, are incomparably more autocratic than the kings and czars who do."[199] "Slavery, feudalism, and capitalism," he tells us, "agree with one another in being systems under which the few"[200] control the actions of the many. This feature of modern capitalism--the control of the many by the few--which constitutes its chief merit in the eyes of writers like Mr. Mallock is what all democratic thinkers consider its chief vice. Under such a system success or failure is no longer proof of natural fitness or unfitness. Where every advantage that wealth and influence afford is enjoyed by the few and denied to the many an essential condition of progress is lacking. Many of the ablest, best, and socially fittest are hopelessly handicapped by lack of opportunity, while their inferiors equipped with every artificial advantage easily defeat them in the competitive struggle. This lack of a just distribution of opportunity under existing industrial arrangements, the defenders of the established social order persistently ignore. Taking no account of the unequal conditions under which the competitive struggle is carried on in human society, they would make success proof of fitness to survive and failure evidence of unfitness. This is treating the complex problem of social adjustment as if it were simply a question of mere animal struggle for existence. Writers of this class naturally accept the Malthusian doctrine of population, and ascribe misery and want to purely natural causes, viz., the pressure of population on the means of subsistence. Not only is this pressure with its attendant evils unavoidable, they tell us, but, regarded from the standpoint of the highest interests of the race it is desirable and beneficent in that it is the method of evolution--the means which nature makes use of to produce, through the continual elimination of the weak, a higher human type. To relieve this pressure through social arrangements would arrest by artificial contrivances the progress which the free play of natural forces tends to bring about. If progress is made only through the selection of the fit and the rejection of the unfit, it would follow that the keener the struggle for existence and the more rapid and relentless the elimination of the weak, the greater would be the progress made. This is exactly the contention of Kidd in his Social Evolution. He claims that if the pressure of population on the means of subsistence were arrested, and all individuals were allowed equally to propagate their kind, the human race would not only not progress, but actually retrograde.[201] If we accept this as true, it would follow that a high birth rate and a high death rate are necessary in order that the process of selection and rejection may go on. This is indeed a pleasant prospect for all except the fortunate few. But the question, of course, is not whether this is pleasant to contemplate or unpleasant, but whether it is true. Is the evolution of a higher human type the same kind of a process as that of a higher animal or vegetable type? Is progress achieved only through the preservation of the fit and the elimination of the unfit? If it could be shown that this is the case, then certainly the conditions under which this struggle to the death is carried on would be a matter of supreme importance. Are our social adjustments such as to facilitate, or at least not interfere with it? Do they make the question of success or failure, survival or elimination, depend upon individual fitness or unfitness? This, as we have seen, is not the case, though the partisans of the biological theory of human progress have constantly assumed it. Mr. Mallock takes even a more extreme position than most writers of this class, and actually says "that the social conditions of a time are the same for all, but that it is only exceptional men who can make exceptional use of them."[202] The unequal distribution of wealth he seeks to justify on the ground that "the ordinary man's talents as a producer ... have not appreciably increased in the course of two thousand years and have certainly not increased within the past three generations."[203] "In the domain of modern industrial activity the many" ... he tells us, "produce only an insignificant portion of the total, ... and in the domain of intellectual and speculative progress the many produce or achieve nothing."[204] If we accept his premises, we must agree with his conclusion that democracy's indictment of our modern industrial system falls to the ground. This view of the matter is acceptable, of course, to those who are satisfied with present social arrangements. It furnishes a justification for the system under which they have prospered while others have failed. It relieves their conscience of any misgiving and soothes them with the assurance that only through the poverty and misery of the unfit can a higher civilization be evolved. This largely explains the popularity among the well-to-do classes of such books as Malthus' Principle of Population and Kidd's Social Evolution. Such a treatment of the social problem, however, will not bear the test of analysis, since it assumes that the present distribution of opportunity is just. To ignore or treat as unimportant the influence of social arrangements upon the struggle for existence between individuals, as apologists for the existing social order are too much inclined to do, is like ignoring the modern battle-ship as a factor in the efficiency of the modern navy. But while this biological theory of evolution has been made to serve the purpose of defending existing social arrangements, it is in reality no adequate explanation of human progress. Selection and rejection do not, as a matter of fact, play any important part in the progress of civilized communities. Here the struggle for existence has assumed the form of a struggle for domination. The vanquished are no longer eliminated as a result of the competitive struggle; for, as Mr. Spencer says, social institutions preserve the incapables.[205] Not only are the unsuccessful not eliminated but, as sociological students well know, they increase more rapidly than the successful few. If, then, we accept the biological theory of social evolution, we are forced to the conclusion that the human race, instead of advancing, is really retrograding. Seeing that this is not a satisfactory explanation of human progress, Mr. Mallock supplements it with a new factor which he describes as "the unintended results of the intentions of great men."[206] But, like all of these writers, he makes progress depend entirely on the biological struggle for existence or the industrial struggle for supremacy, not recognizing the all-important part which social ideals and conscious social choice play in human evolution. There is, then, as we have seen, ample justification for the hostility to privilege which the democratic movement everywhere exhibits. In making equality of opportunity a feature of the new social order, the advocates of reform are proceeding in harmony with the teaching of modern science. Such changes must be brought about in the organization of industry, the laws of property, the scope and character of public and private activities, as will sweep away entirely the whole ancient system of special privileges, and by placing all individuals upon the same footing, make success the unfailing reward of merit. To accomplish this is to solve the monopoly problem. Some progress has been made in this direction, but it consists for the most part in discovering that such a problem exists. Just how posterity will deal with it, it is impossible to foresee; but of one thing we may be sure--this new conception of justice will exert a profound influence upon the legislation of the future. The attention of the democratic movement has up to the present time been occupied almost exclusively with the question of a just distribution of opportunity; yet this is not the only problem which democracy will have to solve. Indeed, it is but the first step in a continuous process of conscious social readjustment. This fact many writers on social science have not fully grasped. There is still a tendency to regard society as a sort of divinely ordered mechanism, which, if properly started, will automatically work out the process of social evolution. * * * * From this point of view it is easy to conclude that "whatever is, is right." * * * * If we accept this belief in the beneficent and progressive character of all natural processes, the conclusion is irresistible that nature's methods should not be interfered with. This is largely the point of view of the earlier English political economists, and it partly explains their belief in the policy of non-interference. The best and most comprehensive statement of this view of social progress is found in Adam Smith's Wealth of Nations. In this work he attempted to show that legislative interference with industry is unnecessary. Therefore he advocated the repeal of all laws which interfered with or in any way restricted the liberty of the individual. He believed that the natural principle of competition would of itself effectually regulate industrial life. The desire of each individual to pursue his own interests made state interference, in his opinion, unnecessary. In the absence of legal restraints industrial matters would spontaneously regulate themselves. The varied economic activities of individuals in society would be adequately controlled and harmonized with the general interests of society, if statute or human law did not interfere with natural or divine law. Reliance on competition would ensure order, harmony and continuous progress in society, just as in the realm of matter the influence of gravitation has transformed by a long-continued development the original chaos into an orderly universe. Each individual acting in obedience to this law would be "led by an invisible hand to promote"[207] the well-being of society, even though he was conscious only of a selfish desire to further his own ends. Such was the industrial philosophy of Adam Smith. It was in harmony with and the natural outcome of the movement which had already revolutionized religious and philosophic thought. In every department of human activity emphasis was being put on the individual. Liberty was the watchword of society--the panacea for all social ills. The Western world was breaking through the old system of restraints under which the individual had been fettered in religion, politics and business. A new conception of the state, its duties and its functions, had been evolved. Mere human law was being discredited. Philosophers, distrusting the coercive arrangements of society, were looking into the nature of man and the character of the environment for the principles of social organization and order. Belief in the curative power of legislation was being supplanted by a growing faith in the sufficiency of natural law. The underlying motives for advocating the _laissez faire_ policy were, however, mainly political and economic.[208] The ready acceptance of this doctrine must be attributed largely to the fact that it offered a plausible ground for opposing the burdensome restraints of the old system of class rule. This is the origin of our modern doctrine of _laissez faire_ which has so profoundly influenced our political and economic life. But as movements of this character are likely to do, it carried society too far in the opposite direction. This is recognized by that most eminent expounder of the let-alone theory of government, Mr. Herbert Spencer, who, in the third volume of his Principles of Sociology, admits that "there has been a change from excess of restriction to deficiency of restriction."[209] This means that in our accepted political and economic philosophy we have overvalued the organizing power of unregulated natural law, and have consequently undervalued the state as an agency for controlling and organizing industrial forces. All new ideas have to be harmonized with much that is old. As at first accepted they are only partially true. A new philosophy requires time before its benefits can be fully realized. It must pass through a process of adaptation by which it is gradually modified, broadened and brought into orderly relations with life in general. The theory of industrial freedom has during the nineteenth century been passing through just such a stage of development. The contention of Adam Smith and his followers that the mere desire for gain would of itself ensure adequate regulation of industry is certainly not true under existing conditions. Natural law is not, as he assumed, always beneficent in its operation. It is just as liable to produce harm as benefit unless it is regulated, controlled and directed by appropriate human agencies. It needs no argument to convince one that this is true so far as the forces of the physical world are concerned. Gravitation, steam and electricity contributed nothing to human progress until man discovered the means whereby they could be harnessed and controlled. Material civilization means nothing else but the development of control over and the consequent utilization of the materials and forces of the physical world. The important part played by mere human agencies is the only feature that distinguishes civilization from barbarism. Everything which in any way contributes to material progress augments the power of man to control, modify and adapt his environment. And though it may not be so obvious, this general principle is just as true in the moral and spiritual world as in the physical. All progress, material and moral, consists in the due subordination of natural to human agencies. Laws, institutions and systems of government are in a sense artificial creations, and must be judged in relation to the ends which they have in view. They are good or bad according as they are well or poorly adapted to social needs. Civilization in its highest sense means much more than the mere mastery of mind over inanimate nature; it implies a more or less effective social control over individual conduct. Certain impulses, instincts and tendencies must be repressed; others must be encouraged, strengthened, and developed. It is a mistake to suppose that the unrestrained play of mere natural forces ensures progress. Occasional advance is the outcome, but so also is frequent retrogression. There is no scientific basis for the belief in a natural order that everywhere and always makes for progress. Competition or the struggle for existence ensures at most merely the survival of the fittest; but survival of the fittest does not always mean survival of the best. Competition is nature's means of adapting life to its environment. If the environment is such as to give the more highly organized individuals the advantage, progress is the result. But if it is such as to place them at a disadvantage, retrogression, not progress, is the outcome. The higher types of character, no less than the higher organic forms, presuppose external conditions favorable to their development. Competition is merely the means through which conformity to these external conditions is enforced. It eliminates alike that which is better than the environment and that which is worse. It is indifferent to good or bad, to high or low. It simply picks out, preserves and perpetuates those types best suited to environing conditions. Both progress and retrogression are a process of adaptation, and their cause must be sought, not in the principle of competition itself, but in the general external conditions to which it enforces conformity. Success, then, is a matter of adaptation to the environment, or the power to use it for individual ends--not the power to improve and enrich it. The power to take from, is nature's sole test of fitness to live; but the power to enrich is a higher test, and one which society must enforce through appropriate legislation. Laws, institutions and methods of trade which make it possible for the individual to take from more than he adds to the general resources of society tend inevitably toward general social deterioration. Competition is wholesome only when all our social arrangements are such as to discourage and repress all individual activities not in harmony with the general interests of society. This is the point of view from which all social and industrial questions must be studied. The problem which democracy has to solve is the problem of so organizing the environment as to assure progress through the success and survival of the best. [Footnote 1: Sebohm, English Village Community, Ch. III; Traill, Social England, Vol. I, p. 240; Ashley, English Economic History, Vol. I, p. 17.] [Footnote 2: Lowell, Governments and Parties in Continental Europe, Vol. I, Ch. I; Lecky, Democracy and Liberty, Vol. I, p. 265.] [Footnote 3: Work and Wages, p. 398.] [Footnote 4: Tyler, The Literary History of the American Revolution, Vol. I, p. 300.] [Footnote 5: Tyler, The Literary History of the American Revolution, Vol. I, p. 301.] [Footnote 6: Massachusetts, New Hampshire, New Jersey, Pennsylvania and Virginia.] [Footnote 7: Delaware, Maryland and North Carolina.] [Footnote 8: Massachusetts, New Hampshire, Pennsylvania and Maryland.] [Footnote 9: Delaware, New York, New Jersey, North Carolina, South Carolina and Virginia.] [Footnote 10: Connecticut, Rhode Island, New Jersey, Virginia, North Carolina, South Carolina, Georgia, New York and Delaware.] [Footnote 11: Massachusetts, New Hampshire, Maryland, Delaware, South Carolina and Pennsylvania.] [Footnote 12: Massachusetts, New Hampshire, New York, Delaware, Maryland, North Carolina, South Carolina and Virginia.] [Footnote 13: Macdonald's Select Charters, Vol. I, pp. 94-101.] [Footnote 14: Schouler's Constitutional Studies, pp. 70-78, Macdonald's Select Charters, Vol. I.] [Footnote 15: "Who would have thought, ten years ago, that the very men who risked their lives and fortunes in support of republican principles, would now treat them as the fictions of fancy?" M. Smith in the New York Convention held to ratify the Constitution, Elliot's Debates, Second Edition, Vol. II, p. 250.] [Footnote 16: Simeon E. Baldwin, Modern Political Institutions, pp. 83 and 84.] [Footnote 17: Critical Period of American History, p. 226.] [Footnote 18: S.F. Miller, Lectures on the Constitution of the United States, pp. 84-85.] [Footnote 19: McMaster, With the Fathers, pp. 112-113.] [Footnote 20: "They [the framers of the Constitution] represented the conservative intelligence of the country very exactly; from this class there is hardly a name, except that of Jay, which could be suggested to complete the list." Article by Alexander Johnston on the Convention of 1787 in Lalor's Cyclopaedia of Pol. Science, Pol. Econ. and U.S. Hist.] [Footnote 21: Elliot's Debates, Vol. V, p. 557.] [Footnote 22: Ibid., p. 138.] [Footnote 23: "By another [rule] the doors were to be shut, and the whole proceedings were to be kept secret; and so far did this rule extend, that we were thereby prevented from corresponding with gentlemen in the different states upon the subjects under our discussion.... So _extremely solicitous_ were they that their proceedings should not transpire, that the members were prohibited even from taking copies of resolutions, on which the Convention were deliberating, or extracts of any kind from the Journals without formally moving for and obtaining permission, by a vote of the Convention for that purpose." Luther Martin's Address to the Maryland House of Delegates. Ibid., Vol. I, p. 345. "The doors were locked, and an injunction of strict secrecy was put upon everyone. The results of their work were known in the following September, when the draft of the Federal Constitution was published. But just what was said and done in this secret conclave was not revealed until fifty years had passed, and the aged James Madison, the last survivor of those who sat there, had been gathered to his fathers." Fiske, The Critical Period of American History, p. 229. McMaster, With the Fathers, p. 112.] [Footnote 24: Elliot's Debates, Vol. I, pp. 119-127.] [Footnote 25: Elliot's Debates, Vol. II, p. 470.] [Footnote 26: Elliot's Debates, Vol. I, p. 422.] [Footnote 27: Ibid., p. 450.] [Footnote 28: Book 5, Ch. I, Part II.] [Footnote 29: Elliot's Debates, Vol. V, p. 160.] [Footnote 30: Ibid., p. 137.] [Footnote 31: Elliot's Debates, Vol. I, p. 450.] [Footnote 32: Ibid., pp. 421-422.] [Footnote 33: Ibid., p. 475.] [Footnote 34: No. 10.] [Footnote 35: In Massachusetts and New Hampshire the constitutions framed during the Revolutionary period were submitted to popular vote. The Virginia Constitution of 1776 contained the declaration "that, when any government shall have been found inadequate or contrary to these purposes [the purposes enumerated in the Bill of Rights], a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal." The Revolutionary constitution of Pennsylvania contained a similar declaration. Poore, Charters and Constitutions.] [Footnote 36: Elliot's Debates, Vol. III, pp. 48-50.] [Footnote 37: Ames, Proposed Amendments to the Constitution of the United States. This book gives a list of the amendments proposed during the first one hundred years of our history under the Constitution. During the fifteen years from 1889 to 1904, four hundred and thirty-five amendments were proposed. These figures are taken from a thesis submitted for the LL.B. degree at the University of Washington by Donald McDonald, A.B. It is interesting to observe that this is one of the few important features of the Constitution not copied by the Confederate States at the outbreak of the Civil War. The constitution which they adopted provided an easier method of amendment. Any three states could suggest amendments and require Congress to summon a convention of all the states to consider them. To adopt a proposed amendment ratification by legislatures or conventions in two-thirds of the states was necessary.] [Footnote 38: Political Science and Constitutional Law, Vol. I, p. 151.] [Footnote 39: The American Commonwealth, Vol. I, Ch. III.] [Footnote 40: Second Edition, Vol. I, Appendix, Note on Constitutional Conventions.] [Footnote 41: Fiske, The Critical Period of American History, p. 328.] [Footnote 42: McMaster, With the Fathers, p. 71.] [Footnote 43: Elliot's Debates, Vol. I, p. 423.] [Footnote 44: Woodrow Wilson, Division and Reunion, p. 12.] [Footnote 45: The vote in Massachusetts was 187 to 168 in favor of ratification; in New York, 30 to 27; in Virginia, 89 to 79.] [Footnote 46: No. 81.] [Footnote 47: The American Commonwealth, Vol. I, Ch. XXXII.] [Footnote 48: _Ibid._] [Footnote 49: Roosevelt in 1904 received less than 56.4 per cent. of the total popular vote.] [Footnote 50: In 1904 Roosevelt carried thirty-two states--two more than two-thirds.] [Footnote 51: Poore, Charters and Constitutions.] [Footnote 52: A. Lawrence Lowell, Essays on Government, p. 40.] [Footnote 53: _The Federalist_, No. 78.] [Footnote 54: "The object of the Act of Parliament was to secure the judges from removal at the mere pleasure of the Crown; but not to render them independent of the action of Parliament." Story, Commentaries on the Constitution, Sec. 1623.] [Footnote 55: Works (Ford's Edition), Vol. X, p. 38.] [Footnote 56: Cf. supra p. 21.] [Footnote 57: The Jeffersonian System, pp. 112-113.] [Footnote 58: Referring to Hamilton's defence of the judicial veto, Jefferson says "If this opinion be sound, then indeed is our Constitution a complete _felo de se_. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation." Ford's Edition of his works, Vol. X, p. 141.] [Footnote 59: _The Federalist_, No. 78.] [Footnote 60: _The Federalist_, No. 85.] [Footnote 61: Elliot's Debates, Vol I, p. 421.] [Footnote 62: Ibid., Vol. V, Appendix No. 5.] [Footnote 63: Brinton Coxe, Judicial Power and Unconstitutional Legislation, p. 165. The reader is referred to this work for a discussion of this and other cases.] [Footnote 64: The constitutions of Massachusetts, Maryland, New Hampshire, North Carolina and Virginia contained provisions expressly declaring that no power of suspending laws, or the execution of laws, should be exercised unless by the legislature, or by authority derived from it. The Vermont constitution of 1786 also contained a similar provision.] [Footnote 65: Commonwealth v. Caton, Hopkins and Lamb. Quoted from Coxe, p. 221.] [Footnote 66: Cooley, Constitutional Limitations, 6th ed., p. 193, n. and Thorpe, A Short Constitutional History of the United States, p. 238.] [Footnote 67: Quoted in Coxe, Judicial Power and Unconstitutional Legislation, p. 252.] [Footnote 68: _Ibid._, p. 263.] [Footnote 69: Burgess, Pol. Sci. and Const. Law, Vol. II, p. 364.] [Footnote 70: Elliot's Debates, Vol. I, p. 507.] [Footnote 71: Ibid., Vol. V, p. 429.] [Footnote 72: Ibid., Vol. V, pp. 151, 344, 345, 346, 347.] [Footnote 73: _Federalist_, No. 78.] [Footnote 74: Elliot's Debates, Vol. II, p. 196.] [Footnote 75: Elliot's Debates, Vol. II, p. 489.] [Footnote 76: Ibid., Vol. III, p. 553.] [Footnote 77: 3 Dallas.] [Footnote 78: "'You have made a good Constitution,' said a friend to Gouverneur Morris after the adjournment of the Convention. 'That,' replied Morris, 'depends on how it is construed.'" Gordy, Political Parties in the United States, Vol. I, p. 114. This was clearly understood by the framers of the Constitution and by all the leading Federalists.] [Footnote 79: Rutledge, Wilson, Blair, Patterson, and Ellsworth.] [Footnote 80: Jay, Rutledge, Wilson, Blair, Iredell, Johnson, Chase, Ellsworth, Cushing, Washington, and Marshall.] [Footnote 81: Wilson, Ellsworth, and Marshall.] [Footnote 82: Supra, p. 89.] [Footnote 83: Alfred Moore.] [Footnote 84: Elliot's Debates, Vol. III, pp. 324-325.] [Footnote 85: Political Science and Constitutional Law, Vol. II, p. 365.] [Footnote 86: Burgess, Political Science and Constitutional Law, Vol. II, p. 365.] [Footnote 87: Infra, pp. 119-122.] [Footnote 88: Boutmy, Studies in Constitutional Law, pp. 117-118 (Eng. Trans.).] [Footnote 89: Referring to the power of the Supreme Court in our scheme of government, Jefferson said "It is a misnomer to call a government republican, in which a branch of the supreme power is independent of the nation." Works, Vol. X, p. 199.] [Footnote 90: Lee, Source Book of English History, p. 336.] [Footnote 91: Commentaries on the Constitution of the United States, sec. 1399; cf. Infra pp. 321-325.] [Footnote 92: Constitutional History as Seen in American Law, p. 80.] [Footnote 93: _Ibid._, p. 258.] [Footnote 94: For a list of these cases see United States Supreme Court Reports, Vol. 131. Appendix CCXXXV. Banks and Brothers Edition.] [Footnote 95: Dissenting opinion Inter-State Commerce Commission, v. Alabama Midland Railway Company, 168 United States, 144.] [Footnote 96: For a discussion of these cases see "The Legal Tender Decisions" by E.J. James, Publications of the American Economic Association, Vol. III.] [Footnote 97: Report of the Am. Bar Association, 1895, p. 246.] [Footnote 98: For a discussion of this recent use of the injunction by our Federal Courts see Annual Address of the President of the Georgia Bar Association, John W. Akin, on "Aggressions of the Federal Courts," 1898; W.H. Dunbar, "Government by Injunction," Economic Studies, Vol. III; Stimson, Handbook of Am. Labor Laws.] [Footnote 99: "We should like to see the law so changed that any man arrested for contempt of court, for an act not performed in the presence of the court and during judicial proceedings, should have a right to demand trial by jury before another and an impartial tribunal. It is not safe, and therefore it is not right, to leave the liberties of the citizens of the United States at the hazard involved in conferring such autocratic power upon judges of varied mental and moral caliber as are conferred by the equity powers which our courts have inherited through English precedents." Editorial in the _Outlook_, Vol. LXXIV, p. 871.] [Footnote 100: C.H. Butler, Treaty-Making Power of the United States, Vol. II, p. 347.] [Footnote 101: Art. III, sec. 2.] [Footnote 102: The constitutions of Maine (since 1820), Rhode Island (since 1842), Florida (since 1875), and Missouri (constitution of 1865, but omitted in constitution of 1875 and since). A provision of this kind is also found in the Massachusetts constitution of 1780, from which it was copied in the New Hampshire constitution of 1784. Its purpose in these two constitutions, however, was not to guard against the subsequent exercise of the judicial veto, since the latter was then unknown, but to make the judges of the Supreme Court an advisory body to the legislature.] [Footnote 103: Democracy and Liberty, Vol. I, p. 9.] [Footnote 104: Elliot's Debates, Vol. III, p. 218.] [Footnote 105: Works, Vol. I, p. 29. Cralle's Ed.] [Footnote 106: Supra, p. 18.] [Footnote 107: Infra p. 239.] [Footnote 108: Pennsylvania and Georgia had only a single legislative body.] [Footnote 109: "There was certainly no intention of making the appointment of the Presidential electors subject to popular election. I think it is evident that the framers were anxious to avoid this." Burgess, Political Science and Constitutional Law, Vol. II, p. 219. According to Fiske, "electors were chosen by the legislature in New Jersey till 1816; in Connecticut till 1820; in New York, Delaware, and Vermont, and with one exception in Georgia, till 1824; in South Carolina till 1868. Massachusetts adopted various plans, and did not finally settle down to an election by the people until 1828." The Critical Period of American History, p. 286.] [Footnote 110: Elliot's Debates, Vol. I, p. 421.] [Footnote 111: Madison, Elliot's Debates, Vol. I, p. 450.] [Footnote 112: Elliot's Debates, Vol. V, p. 158.] [Footnote 113: Boutmy, Studies in Constitutional Law, p. 91 (Eng. Trans.). See also Ford, The Rise and Growth of American Politics, p. 254.] [Footnote 114: Previous to Andrew Johnson's administration but six measures were passed over the President's veto. Up to 1889 the veto power of the President had been exercised four hundred and thirty-three times, and in but twenty-nine instances had it been overridden by the required two-thirds majority in both houses of Congress. Fifteen measures vetoed by Andrew Johnson were passed over his veto--more than in the case of all other Presidents combined. Mason, The Veto Power, p. 214.] [Footnote 115: Mason, The Veto Power, p. 214.] [Footnote 116: Elliot's Debates, Vol. V, p. 151. Hamilton's statement, which was made in support of a motion to give the President an absolute veto on acts of Congress, was not correct. William III vetoed no less than four acts of Parliament, and his successor used the veto power for the last time in 1707. Medley, English Constitutional History, p. 315.] [Footnote 117: Supra, p. 19.] [Footnote 118: Infra, p. 231.] [Footnote 119: Senate in South Carolina and Maryland (constitutions of 1776) exceptions, Infra p. 239.] [Footnote 120: Constitution, Art. II. Sec. I.] [Footnote 121: Elliot's Debates, Vol. I, p. 503.] [Footnote 122: Ibid., p. 494.] [Footnote 123: For a discussion of this feature of our government see the following chapter.] [Footnote 124: Under the Articles of Confederation the Congress of the United States was required to "publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations as in their judgment require secrecy." Art. IX.] [Footnote 125: The Revolutionary constitutions of New York and Pennsylvania provided that the doors of the legislature should be kept open at all times for the admission of the public except when the welfare of the state should demand secrecy.] [Footnote 126: Cf. Ford, The Rise and Growth of American Politics, p. 63.] [Footnote 127: Quoted from Article on Reporting in Encyclopedia Brittanica.] [Footnote 128: Vol. XIV, p. 62. See also Porritt, The Unreformed House of Commons, Vol. I, pp. 590-596.] [Footnote 129: Greene, The Provincial Governor, pp. 198-199.] [Footnote 130: Cooley, Constitutional Limitations, 6th ed., pp. 514-516.] [Footnote 131: Massachusetts, New Hampshire and Maryland.] [Footnote 132: Art. V.] [Footnote 133: Elliot's Debates, Vol. I, p. 181 and Vol. V, p. 132.] [Footnote 134: Constitutional History of the United States, Vol. I, p. 79.] [Footnote 135: No. 46.] [Footnote 136: No. 45.] [Footnote 137: Von Holst, Vol. I, p. 88.] [Footnote 138: Ford's Ed. Jefferson's Works, Vol. VII, p. 301.] [Footnote 139: Works, Vol. I, p. 169.] [Footnote 140: Works, Vol. I, p. 242.] [Footnote 141: Sept., 24, 1789. U.S. Statutes at Large, Vol. I.] [Footnote 142: Woodrow Wilson, Congressional Government, p. 4.] [Footnote 143: Art. I, Sec. 4.] [Footnote 144: The states of Maine, Oregon and Vermont still elect their representatives to Congress before the general November election. Maine holds her election on the second Monday in September, Oregon on the first Monday in June and Vermont on the first Tuesday in September next preceding the general November election.] [Footnote 145: John F. Shafroth, When Congress Should Convene; North Am. Rev., Vol. 164. The writer of this article makes the common but erroneous assumption that the fundamental principle of our government is majority rule. From the standpoint of democracy, however, his argument is unassailable.] [Footnote 146: A modification of this check on public opinion has been incorporated in the charter of one of our new Western cities. In Spokane, Washington, one-half of the councilmen take their seats immediately after the regular municipal election, and the other half, though elected at the same time, do not enter upon the discharge of their duties until one year later.] [Footnote 147: Art. I, Sec. 2.] [Footnote 148: The American Commonwealth, Vol. I, Ch. 15.] [Footnote 149: The American Commonwealth, Vol. I, Ch. 15.] [Footnote 150: The Conduct of Business in Congress, North Am. Rev., Vol. CXXVIII, p. 121.] [Footnote 151: _Ibid._, p. 122.] [Footnote 152: For instances of the exercise of this power see Follett, The Speaker of the House of Representatives, Ch. IX.] [Footnote 153: Senator Hoar's Article.] [Footnote 154: Boutmy, Studies in Constitutional Law, pp. 98-99.] [Footnote 155: Ostrogorski, Democracy and the Organization of Political Parties, Vol. I, p. 20.] [Footnote 156: _Federalist_, No. 10.] [Footnote 157: For a discussion of the causes of present-day corruption, see an article by Professor Edward A. Ross in _The Independent_, July 19, 1906, on "Political Decay: An Interpretation."] [Footnote 158: In the enabling acts for the admission of Nebraska and Nevada (1864), Colorado (1875), North Dakota, South Dakota, Montana and Washington (1889), and Utah (1896), we find the provision that the state constitution shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.] [Footnote 159: See Annals of the American Academy of Political and Social Science, Vol. VI, p. 469.] [Footnote 160: Goodnow, Municipal Home Rule, p. 20.] [Footnote 161: Municipal Problems, p. 9.] [Footnote 162: Goodnow, Municipal Home Rule, p. 23.] [Footnote 163: Goodnow, Municipal Home Rule, pp. 24-26.] [Footnote 164: Tacoma Gas and Electric Light Co. v. Tacoma, 14 Wash.] [Footnote 165: The employment of the special fund device for municipal ownership purposes has been upheld by the Supreme Court of Washington. See Winston v. Spokane, 12 Wash. 524, and Faulkner v. Seattle, 19 Wash. 320.] [Footnote 166: Const., Art. I, sec. 2 and Art. II, sec. 1.] [Footnote 167: Abstract of the Twelfth Census, p. 133.] [Footnote 168: Constitution of Colorado, Art. X, Sec. 3.] [Footnote 169: These figures concerning municipally owned waterworks as well as those in the following paragraph relating to electric light plants, are based on the data contained in the Fourteenth Annual Report of the U.S. Commissioner of Labor on Water, Gas and Electric Light Plants.] [Footnote 170: Water, Gas and Electric Light Plants, 1899.] [Footnote 171: Abstract of the Twelfth Census, p. 133.] [Footnote 172: Ibid, p. 28.] [Footnote 173: Cooley, Constitutional Limitations, 6th ed., p. 282, n.] [Footnote 174: The Shame of the Cities, p. 5.] [Footnote 175: Bryce, Vol. I, p. 663.] [Footnote 176: Willoughby, The Nature of the State, p. 416.] [Footnote 177: Pol. Sci. and Const. Law, Vol. I, p. 197.] [Footnote 178: Ford's ed. of _The Federalist_, Introduction, p. xiii.] [Footnote 179: Boutmy, Studies in Constitutional Law, p. 155.] [Footnote 180: Principles of Sociology, Vol. III, p. 525.] [Footnote 181: In the year 1857 over 37 per cent. of the immigrants arriving in the United States were from Germany, and over 39 per cent. were from Great Britain and Ireland. The bulk of our foreign immigration continued to come from these two countries until about 1886 or 1887. In 1890 these countries together contributed but little more than 47 per cent. of our foreign immigrants, and in 1904 but 17 per cent. Italy, including Sicily and Sardinia, supplied but 6 per cent. of the total number of immigrants in 1886 and 23 per cent. in 1904. The Russian Empire and Finland furnished only 5 per cent. of the total number in 1886 and about 18 per cent. in 1904. In 1886 the immigration from Asiatic countries was insignificant, but in 1904 it had increased to 26,186. See Report of the Commissioner-General of Immigration, 1904.] [Footnote 182: Art. I, sec. 9.] [Footnote 183: _Federalist_, No. 36.] [Footnote 184: Considerations, on the Power to Incorporate the Bank of North America, Works, Vol. I.] [Footnote 185: 6 Cranch, 87.] [Footnote 186: Constitutional Limitations, 6th ed., pp. 335-336, n.] [Footnote 187: Money and Banking, p. 327. See also Myers, The History of Tammany Hall, pp. 113-116.] [Footnote 188: "Over and over again our government has been saved from complete breakdown only by an absolute disregard of the Constitution, and most of the very men who framed the compact would have refused to sign it, could they have foreseen its eventual development." Ford's Federalist, Introduction, p. vii.] [Footnote 189: This was true of Samuel J. Tilden, the Democratic candidate in 1876.] [Footnote 190: Supra p. 56.] [Footnote 191: Appendix to the Congressional Globe, 1st sess., 30th Cong., p. 94.] [Footnote 192: Vol. I, p. 520.] [Footnote 193: _Outlook_, Vol. 79, p. 163.] [Footnote 194: Popular Government, p. 181.] [Footnote 195: Politics and Administration, p. 9.] [Footnote 196: This was one of the objects of the Oregon Direct Primary Law, which was enacted by the people of that state upon initiative petition at the general election held June 6, 1904. Under this law the elector seeking nomination for the office of senator or representative in the legislative assembly is expected to sign and file, as part of his petition for nomination, one of the two following statements: No. 1. "I further state to the people of Oregon as well as to the people of my legislative district, that during my term of office, I will always vote for that candidate for United States Senator in Congress who has received the highest number of the people's votes for that position at the general election next preceding the election of a Senator in Congress, without regard to my individual preference." No. 2. "During my term of office I shall consider the vote of the people for United States Senator in Congress as nothing more than a recommendation, which I shall be at liberty to wholly disregard if the reason for doing so seems to me to be sufficient."] [Footnote 197: Pure Sociology, p. 487.] [Footnote 198: "The art of printing, in the hands of private persons, has, until within a comparatively recent period, been regarded rather as an instrument of mischief, which required the restraining hand of the government, than as a power for good, to be fostered and encouraged.... The government assumed to itself the right to determine what might or might not be published; and censors were appointed without whose permission it was criminal to publish a book or paper upon any subject. Through all the changes of government, this censorship was continued until after the Revolution of 1688, and there are no instances in English history of more cruel and relentless persecution than for the publication of books which now would pass unnoticed by the authorities.... "So late as 1671, Governor Berkeley, of Virginia, expressed his thankfulness that neither free schools nor printing were introduced in the Colony, and his trust that these breeders of disobedience, heresy, and sects, would long be unknown.... "For publishing the laws of one session in Virginia, in 1682, the printer was arrested and put under bonds until the King's pleasure could be known, and the King's pleasure was declared that no printing should be allowed in the Colony. There were not wanting instances of the public burning of books as offenders against good order. Such was the fate of Elliot's book in defense of unmixed principles of popular freedom, and Calef's book against Cotton Mather, which was given to the flames at Cambridge." Cooley, Constitutional Limitations, 6th ed., pp. 513-515.] [Footnote 199: Aristocracy and Evolution, p. 58.] [Footnote 200: Ibid. p. 377.] [Footnote 201: Social Evolution, p. 39.] [Footnote 202: Aristocracy and Evolution, p. 105.] [Footnote 203: Ibid p. 218.] [Footnote 204: Ibid p. 219.] [Footnote 205: Principles of Biology, Vol. I, p. 469.] [Footnote 206: Aristocracy and Evolution, p. 105.] [Footnote 207: Adam Smith, Wealth of Nations, Book I, Ch. 2.] [Footnote 208: Supra, chapters XI and XII.] [Footnote 209: P. 534.] INDEX Alien and sedition laws, 166. Amendment, Articles of Confederation, 57; Australia, 62; England, 62; France, 62; Revolutionary state constitutions, 59; state constitutions after 1787, 235; Switzerland, 63; checks on undemocratic, 63. See Constitution of the United States. American colonies, government of, 12. American government, aristocratic, 79, 103, 126. See Checks and Balances, Constitution of the United States, House of Representatives, President, Senate, Supreme Court. American revolution, change in the spirit of, 13; results of, 27. Anarchism. See Checks and Balances. Articles of Confederation, democratic tendency of, 25, 57; weakness of, 23. Baldwin, Simeon E., on the source of the Constitution, 28. Bank of North America, repeal of the charter of, 321. Boutmy, Emile, on the powers of the Supreme Court, 98; on the relation of the House of Representatives to treaties, 138; on hasty voting in the House, 202; on the sovereignty of the majority in France, 301. Bryce, James, on the opposition of the masses to the ratification of the Constitution, 49; on the ratification of the last three amendments, 54; on the committee system, 196. Budget. See House of Representatives. Burgess, John W., on the difficulty of amending the Constitution, 47; on the veto power of the Supreme Court, 90; on the desire of the framers to avoid popular choice of Presidential electors, 134 note; on the protection of private property by the Supreme Court, 299. Butler, C.H., on the attitude of the Supreme Court toward treaties, 119. Calhoun, John C., on popular government, 132; on state rights, 178. Channing, Edward, on removal of judges, 71. Checks and balances, American system of artificial, 130; anarchism an extreme application of, 132; belief of framers in, 125; in early state constitutions, 21; in English government, 8; limitation of power of the people under, 129; origin of, 126; Poland an example of, 131; practical limit to extension of, 130; relation of, to _laissez faire_, 131; subordination of House of Representatives not in accord with, 147. See Constitution of the United States. Chinese exclusion act, 315. Common law, influence of the ruling class upon, 11. Constitutional convention of 1787. See Constitution of the United States. Constitutional government, origin of, 3; relation to democracy, 3. Constitution of the United States, a product of 18th century thought, 28; change in the attitude of the people toward, 184; germs of national government in, 161; influence of the Federalists upon the development of, 164; limitation of the taxing power in, 318; no provision for political parties in, 205; numerical majority not recognized in, 176; power of minority to modify, 167; protection of property in, 298; purpose of, misrepresented by the framers, 77; relation of, to individual liberty, 297; relation of, to the doctrine of nullification, 169; responsible for the state rights controversy, 163; significance of, economic, 299; states not expressly subordinated in, 161; substitutes for monarchy and aristocracy in, 132; vote in the conventions ratifying, 53 note; an insignificant minority may prevent amendment of, 46; Patrick Henry's objection to the amendment feature of, 44; number of amendments proposed, 47; power of two-thirds of the states to call a constitutional convention, 346; importance of this provision, 346; difficulty of securing the co-operation of the smaller states, 347; the first ten amendments, 53; the eleventh amendment, 53; the twelfth amendment, 53; the last three amendments, 54. See House of Representatives. President, Senate, Supreme Court. Contracts, laws impairing the obligation of, 320-325. Cooley, T.M., on the difference between judicial and political power, 107; on the attitude of the fathers toward publicity, 156; on the evils of legislative interference in municipal affairs, 284; on the influence of the Dartmouth College decision upon the growth of corporate power, 325; on government censorship of printing, 381 note. Coxe, Brinton, on the judicial veto in England, 85; on the judicial veto in the early state governments, 88, 89. Dartmouth College case, 325. Declaration of Independence, 14, 33, 219. Democracy, immediate aim of, political, 388; influence of economic progress on, 384; influence of printing on growth of, 380; reaction against, 27; relation of, to reform, 380. Direct primary, 350; adoption of, in Oregon, 357 note. Electoral college, influence of democracy on, 332. See President. English Bill of Rights, 152; abuse of, by Parliament, 153. Federal elections, 188. Federalists, 165. Federal judiciary. See Supreme Court. Fiske, John, on the conservatism of the framers, 29; on the secrecy of the debates on the Constitution, 34 note; on the election of Presidential electors by state legislatures, 134 note. Ford, Paul L., on the protection of the minority by the Supreme Court, 299; on the rigidity of the Constitution, 331 note. Framers of the Constitution, attitude of, toward criticism of public officials, 152-159; character of, 32; deliberations of, secret, 34. Free land, influence of, on wages, 314. Free speech, in American colonies, 155. Goodnow, F.J., on the freedom of New York City from legislative interference in the early years of our history, 253; on the abuses of legislative interference in municipal affairs, 257. Governor, limited powers of, under early state constitutions, 19; small executive power of, 244; veto power of, 19, 244. See Impeachment, State constitutions after 1787. Government, but two functions of, 344; distinction between national and federal, 159; influence of the minority upon, 370; kinds of, 128; ultimate source of authority in, 296. Government of England, control of, by the landlord class in the 18th century, 204; change in the character of, 207. Government by injunction, 116-119. Great Charter, the political significance of, 4. Great Council, 4; separation of, into lords and commons, 6. Greene, E.B., on free speech in the colonies, 155. Hamilton, Alexander, on life tenure of judges, 66; on the right of the courts to declare legislative acts null and void, 73-75; his effort to mislead the public, 77; his defense of poll taxes, 319; his policy as Secretary of the Treasury, 164; his reasons for supporting the Constitution, 82; kind of government favored by, 79. Henry Patrick, on amending the Constitution, 44; on the right of judges to oppose acts of the legislature, 96; offer of the Chief Justiceship to, 95. Hoar, George F., on law-making in the House of Representatives, 197, 198, 200. House of Commons, character of, in the 18th century, 10, 153, 204. House of Representatives, an irresponsible body during the second regular session, 189; a subordinate branch of the government, 136; influence of the committee system on, 192; relation of, to taxation and expenditure, 148. See President, Senate, Speaker of the House. Immigration, decline in the quality of, 314. Impeachment, by a majority of the legislature, 142; changes in state constitutions relating to, 231; of judges, 20; reason for making difficult, 142; relation of, to executive and judicial veto, 143. See Judges, President, Senate. Income Tax decision, 114, 222, 320. Industry, control of, by the few, 307. Initiative and referendum, 352. Iredell, James, judicial veto defended by, as a means of limiting the power of the majority, 89. James I, on the divine right of kings, 104. Jefferson, Thomas, on the independence of Federal judges, 68, 73 note, 100 note; on the right of a state to nullify a federal law, 173. Johnson, Alexander, on the conservatism of the Federal Convention, 33 note. Judges, reason for advocating the independence of, 67; removal of, under the early state constitutions, 71. See Impeachment, Judicial Veto, Supreme Court. Judicial infallibility, 115, 344. Judicial veto, effort to revive, 87; how conferred, 92; in England, 85; relation of, to the executive veto, 85; relation of, to popular government, 99, 356; significance of, 97. Judiciary Act of 1789, 182; why not incorporated in the Constitution, 183. Kentucky resolutions, 172. Kidd, Benjamin, on social progress, 391. Labor, free trade in, 314. _Laissez faire_, opposition of the masses to, 308; relation of, to progress, 309, 311, 398. Law, lack of respect for, 376-378. Lawyers, virtually a ruling class, 300-302. Lecky, W.E.H., on the purpose of the framers, 129. Liberty, class control of industry destructive of, 306; democratic conception of, 293; eighteenth century economic conditions favorable to, 304; eighteenth century view of, negative, 291; survival of the old view in our legal literature, 301-303. Lincoln, Abraham, on the right of the majority to overthrow minority government, 335; a minority president, 334. Lowell, A. Lawrence, on the importance of the judiciary in our scheme of government, 65. Madison, James, on the evils of American government, 42; on the power of a state to oppose the Federal government, 170; on the danger of government by a majority, 205. Maine, Henry S., on the success of the Senate in opposing democracy, 337. Mallock, W.H., on the benefits and justice of minority control, 389, 392, 394. Marshall, John, on the judicial veto, 93, 322. Martin, Luther, on the precautions against publicity in the Federal Convention, 34 note. McMaster, J.B., on the character of the framers, 32; on the political immorality of the fathers, 50. Miller, S.F., on the relation of the people to the government, 31. Morality, change in the standard of, 361; effect of change in theological beliefs on, 364; influence of class rule on, 366-378. Municipal government, a creature of the legislature, 252; attitude of the courts toward, 254; evils of, attributed to the rule of the masses, 251, 284; examples of legislative interference, 258-263; extension of legislative authority over, 254; fear of majority rule in, 277; financial powers of, limited, 271-273; franchise granting power in, 288-290; home rule movement, 265; retarded by the extension of the suffrage, 287; hostility of the courts to home rule, 268, 270; legislative control a source of corruption, 256; limitation of the power of the majority, 266-268; municipal ownership under class rule, 280; origin of municipal charters, 253; origin of restrictions on the borrowing power, 274-276; prohibition of special legislation, 261; survival of property qualifications, 279; source of corruption in, 288; twofold character of, 256. See Special Fund. Oath of office. See President. Opportunity, equality of, indispensable, 390; but will not ensure progress, 395. Ostrogorski, M., on class control of the House of Commons, 204. Parliament, control of taxing power by, 6; four distinct constituencies represented in, 7. See English Bill of Rights, Government of England, House of Commons, Suffrage. Party government, attitude of the framers toward, 135, 205. Poland. See Checks and Balances. Political parties, attitude of, on the money question, 221; monopolies, 222; control of nominations by minority, 218; erroneous view of the Constitution promulgated by, 219-221; evils of, due to checks on the majority, 214; influence of the Constitution on, 208; lack of power to control the government, 209; largely representative of private interests, 216; purpose of the party platform, 218; reason for lack of interest in, 210. Poll tax. See Hamilton. Popular government, effort to discredit the theory of, 212, 251, 284. President, administrative veto of, 145; difficulty of passing measures over his veto, 139; effort of the framers to preclude the election of a popular favorite, 135; election of, by a minority, 56; growth of veto power of, 141; limited term of, 133; not obligated by his oath of office to enforce the acts of Congress, 145; minority election of, a source of danger, 334-336. See Impeachment. Press, influence of corporate wealth upon, 376. Printing, minority control of, in the past, 381. Property qualifications. See Suffrage. Protective tariff, defended as a means of raising wages, 313; maintained in the interest of the capitalist class, 313-317; relation of, to _laissez faire_, 312. Publicity, lack of adequate provision for, in the Constitution, 150; relation of, to democracy, 372; should extend to political contributions and the record of candidates, 372-373; would cure many business evils, 374-375. Public opinion, control of the organs of, by corporate wealth, 375. Recall of public officials, 351. Rogers, J.E.T., on the attitude of the English government toward the laborer, 11. Senate, difficulty of reforming by constitutional amendment, 338-340; Direct nomination of the members of, 357; disadvantages of equal representation of the states in, 339; election of, by state legislatures an evil, 335; long term of office of, 338; influence of, on state politics, 358; its large powers, 339; members of, can not be impeached, 144; opposition of to democratic legislation, 337. Serfs, numerical importance of, 5. Shafroth, J.F., on how to make the House of Representatives more responsive to public opinion, 189. Slavery, 317. Smith, Adam, on civil government as a means of protecting the rich against the poor, 37. Social progress, influence of theological beliefs upon the accepted theory of, 395-398; relation of government to, 399-402. Speaker of the House, veto of, on legislation, 199. Special fund, for local improvements, 274; for municipal ownership purposes, 276. Spencer, Herbert, on the wage system as a form of slavery, 306; on the need of more restriction, 399. State constitutions after 1787, adoption of direct election and limited term for judges, 240; administrative power decentralized, 242; change from annual to biennial sessions, 233; development of the judicial veto, 230; direct election of the governor, 239; influence of democracy on, 239-242; local administrative veto on state laws, 243; majority deprived of power to amend, 235; term of members of the legislature extended, 232. State constitutions of the Revolutionary period, movement toward democracy seen in, 16-21. State legislatures, administrative veto of, 246; distrust of, 352-355; limitation of the power of, by the courts a cause of corruption, 325-330. See Contracts. State rights. See Calhoun, Constitution of the United States. Steffens, Lincoln, on the wealthy business man as a corruptor of municipal politics, 289. Story, Joseph, on the independence of judges in England, 67 note; on the right of courts to veto laws, 105. Suffrage, limitation of in England in the 18th century, 10; property qualifications for, 25, 43, 333; universal, does not ensure popular government, 369. Supreme Court, attitude toward, a survival of monarchy, 103-105; cases in which it has exercised the veto power, 111; decline of faith in, 113-117; Federalist appointments, 94-99, 342; freedom from criticism, 110; influence of, upon legislation, 111-113; non-interference with treaties, 119-123; political and judicial powers, 107-110; possibility of controlling, 341; significance of powers claimed by, 105; the controlling branch of the government, 102. See Contracts, Hamilton, Impeachment, Jefferson, Judges, Judicial Infallibility, Judicial Veto. Taft, W.H., on the movement to confiscate private property under the guise of reform, 115. Taxes, limitation of the power to impose, 318. Treaty making power, importance of, 137. Tyler, M.C., on the number and character of the opponents of the Revolution, 15. Vested rights, an obstacle to reform, 299; means of enforcing, 300. Veto power. See Judicial Veto, President. Virginia resolutions, 172. Von Holst, H., on the origin of the doctrine of nullification, 169, 171. Ward, L.F., on deception in business, 374. Waterworks, public ownership of, 280. White, Horace, on favoritism in granting bank charters in New York, 327. Willoughby, W.W., on the tyranny of majority rule, 295. Wilson, James, on amending the Articles of Confederation, 35; argument of, against the right of a legislature to revoke privileges granted, 321. Wilson, Woodrow, on the Constitution as the outcome of a ruling class movement, 51; on the deification of the Constitution, 185. 
4351	----	THE ENGLISH CONSTITUTION By Walter Bagehot CONTENTS I. INTRODUCTION TO THE SECOND EDITION. II. THE CABINET. III. THE MONARCHY. IV. THE HOUSE OF LORDS. V. THE HOUSE OF COMMONS. VI. ON CHANGES OF MINISTRY. VII. ITS SUPPOSED CHECKS AND BALANCES. VIII. THE PREREQUISITES OF CABINET GOVERNMENT, AND THE PECULIAR FORM WHICH THEY HAVE ASSUMED IN ENGLAND. IX. ITS HISTORY, AND THE EFFECTS OF THAT HISTORY.--CONCLUSION. NO. I. INTRODUCTION TO THE SECOND EDITION. There is a great difficulty in the way of a writer who attempts to sketch a living Constitution--a Constitution that is in actual work and power. The difficulty is that the object is in constant change. An historical writer does not feel this difficulty: he deals only with the past; he can say definitely, the Constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also. But a contemporary writer who tries to paint what is before him is puzzled and a perplexed: what he sees is changing daily. He must paint it as it stood at some one time, or else he will be putting side by side in his representations things which never were contemporaneous in reality. The difficulty is the greater because a writer who deals with a living Government naturally compares it with the most important other living Governments, and these are changing too; what he illustrates are altered in one way, and his sources of illustration are altered probably in a different way. This difficulty has been constantly in my way in preparing a second edition of this book. It describes the English Constitution as it stood in the years 1865 and 1866. Roughly speaking, it describes its working as it was in the time of Lord Palmerston; and since that time there have been many changes, some of spirit and some of detail. In so short a period there have rarely been more changes. If I had given a sketch of the Palmerston time as a sketch of the present time, it would have been in many points untrue; and if I had tried to change the sketch of seven years since into a sketch of the present time, I should probably have blurred the picture and have given something equally unlike both. The best plan in such a case is, I think, to keep the original sketch in all essentials as it was at first written, and to describe shortly such changes either in the Constitution itself, or in the Constitutions compared with it, as seem material. There are in this book various expressions which allude to persons who were living and to events which were happening when it first appeared; and I have carefully preserved these. They will serve to warn the reader what time he is reading about, and to prevent his mistaking the date at which the likeness was attempted to be taken. I proceed to speak of the changes which have taken place either in the Constitution itself or in the competing institutions which illustrate it. It is too soon as yet to attempt to estimate the effect of the Reform Act of 1867. The people enfranchised under it do not yet know their own power; a single election, so far from teaching us how they will use that power, has not been even enough to explain to them that they have such power. The Reform Act of 1832 did not for many years disclose its real consequences; a writer in 1836, whether he approved or disapproved of them, whether he thought too little of or whether he exaggerated them, would have been sure to be mistaken in them. A new Constitution does not produce its full effect as long as all its subjects were reared under an old Constitution, as long as its statesmen were trained by that old Constitution. It is not really tested till it comes to be worked by statesmen and among a people neither of whom are guided by a different experience. In one respect we are indeed particularly likely to be mistaken as to the effect of the last Reform Bill. Undeniably there has lately been a great change in our politics. It is commonly said that "there is not a brick of the Palmerston House standing". The change since 1865 is a change not in one point but in a thousand points; it is a change not of particular details but of pervading spirit. We are now quarrelling as to the minor details of an Education Act; in Lord Palmerston's time no such Act could have passed. In Lord Palmerston's time Sir George Grey said that the disestablishment of the Irish Church would be an "act of Revolution"; it has now been disestablished by great majorities, with Sir George Grey himself assenting. A new world has arisen which is not as the old world; and we naturally ascribe the change to the Reform Act. But this is a complete mistake. If there had been no Reform Act at all there would, nevertheless, have been a great change in English politics. There has been a change of the sort which, above all, generates other changes--a change of generation. Generally one generation in politics succeeds another almost silently; at every moment men of all ages between thirty and seventy have considerable influence; each year removes many old men, makes all others older, brings in many new. The transition is so gradual that we hardly perceive it. The board of directors of the political company has a few slight changes every year, and therefore the shareholders are conscious of no abrupt change. But sometimes there IS an abrupt change. It occasionally happens that several ruling directors who are about the same age live on for many years, manage the company all through those years, and then go off the scene almost together. In that case the affairs of the company are apt to alter much, for good or for evil; sometimes it becomes more successful, sometimes it is ruined, but it hardly ever stays as it was. Something like this happened before 1865. All through the period between 1832 and 1865, the pre-'32 statesmen--if I may so call them--Lord Derby, Lord Russell, Lord Palmerston, retained great power. Lord Palmerston to the last retained great prohibitive power. Though in some ways always young, he had not a particle of sympathy with the younger generation; he brought forward no young men; he obstructed all that young men wished. In consequence, at his death a new generation all at once started into life; the pre-'32 all at once died out. Most of the new politicians were men who might well have been Lord Palmerston's grandchildren. He came into Parliament in 1806, they entered it after 1856. Such an enormous change in the age of the workers necessarily caused a great change in the kind of work attempted and the way in which it was done. What we call the "spirit" of politics is more surely changed by a change of generation in the men than by any other change whatever. Even if there had been no Reform Act, this single cause would have effected grave alterations. The mere settlement of the Reform question made a great change too. If it could have been settled by any other change, or even without any change, the instant effect of the settlement would still have been immense. New questions would have appeared at once. A political country is like an American forest; you have only to cut down the old trees, and immediately new trees come up to replace them; the seeds were waiting in the ground, and they began to grow as soon as the withdrawal of the old ones brought in light and air. These new questions of themselves would have made a new atmosphere, new parties, new debates. Of course I am not arguing that so important an innovation as the Reform Act of 1867 will not have very great effects. It must, in all likelihood, have many great ones. I am only saying that as yet we do not know what those effects are; that the great evident change since 1865 is certainly not strictly due to it; probably is not even in a principal measure due to it; that we have still to conjecture what it will cause and what it will not cause. The principal question arises most naturally from a main doctrine of these essays. I have said that Cabinet government is possible in England because England was a deferential country. I meant that the nominal constituency was not the real constituency; that the mass of the "ten-pound" house-holders did not really form their own opinions, and did not exact of their representatives an obedience to those opinions; that they were in fact guided in their judgment by the better educated classes; that they preferred representatives from those classes, and gave those representatives much licence. If a hundred small shopkeepers had by miracle been added to any of the '32 Parliaments, they would have felt outcasts there. Nothing could be more unlike those Parliaments than the average mass of the constituency from which they were chosen. I do not of course mean that the ten-pound householders were great admirers of intellect or good judges of refinement. We all know that, for the most part, they were not so at all; very few Englishmen are. They were not influenced by ideas, but by facts; not by things impalpable, but by things palpable. Not to put too fine a point upon it, they were influenced by rank and wealth. No doubt the better sort of them believed that those who were superior to them in these indisputable respects were superior also in the more intangible qualities of sense and knowledge. But the mass of the old electors did not analyse very much: they liked to have one of their "betters" to represent them; if he was rich they respected him much; and if he was a lord, they liked him the better. The issue put before these electors was, Which of two rich people will you choose? And each of those rich people was put forward by great parties whose notions were the notions of the rich--whose plans were their plans. The electors only selected one or two wealthy men to carry out the schemes of one or two wealthy associations. So fully was this so, that the class to whom the great body of the ten-pound householders belonged--the lower middle class--was above all classes the one most hardly treated in the imposition of the taxes. A small shopkeeper, or a clerk who just, and only just, was rich enough to pay income tax, was perhaps the only severely taxed man in the country. He paid the rates, the tea, sugar, tobacco, malt, and spirit taxes, as well as the income tax, but his means were exceedingly small. Curiously enough the class which in theory was omnipotent, was the only class financially ill-treated. Throughout the history of our former Parliaments the constituency could no more have originated the policy which those Parliaments selected than they could have made the solar system. As I have endeavoured to show in this volume, the deference of the old electors to their betters was the only way in which our old system could be maintained. No doubt countries can be imagined in which the mass of the electors would be thoroughly competent to form good opinions; approximations to that state happily exist. But such was not the state of the minor English shopkeepers. They were just competent to make a selection between two sets of superior ideas; or rather--for the conceptions of such people are more personal than abstract--between two opposing parties, each professing a creed of such ideas. But they could do no more. Their own notions, if they had been cross-examined upon them, would have been found always most confused and often most foolish. They were competent to decide an issue selected by the higher classes, but they were incompetent to do more. The grave question now is, How far will this peculiar old system continue and how far will it be altered? I am afraid I must put aside at once the idea that it will be altered entirely and altered for the better. I cannot expect that the new class of voters will be at all more able to form sound opinions on complex questions than the old voters. There was indeed an idea--a very prevalent idea when the first edition of this book was published--that there then was an unrepresented class of skilled artisans who could form superior opinions on national matters, and ought to have the means of expressing them. We used to frame elaborate schemes to give them such means. But the Reform Act of 1867 did not stop at skilled labour; it enfranchised unskilled labour too. And no one will contend that the ordinary working man who has no special skill, and who is only rated because he has a house, can judge much of intellectual matters. The messenger in an office is not more intelligent than the clerks, not better educated, but worse; and yet the messenger is probably a very superior specimen of the newly enfranchised classes. The average can only earn very scanty wages by coarse labour. They have no time to improve themselves, for they are labouring the whole day through; and their early education was so small that in most cases it is dubious whether even if they had much time, they could use it to good purpose. We have not enfranchised a class less needing to be guided by their betters than the old class; on the contrary, the new class need it more than the old. The real question is, Will they submit to it, will they defer in the same way to wealth and rank, and to the higher qualities of which these are the rough symbols and the common accompaniments? There is a peculiar difficulty in answering this question. Generally, the debates upon the passing of an Act contain much valuable instruction as to what may be expected of it. But the debates on the Reform Act of 1867 hardly tell anything. They are taken up with technicalities as to the ratepayers and the compound householder. Nobody in the country knew what was being done. I happened at the time to visit a purely agricultural and Conservative county, and I asked the local Tories, "Do you understand this Reform Bill? Do you know that your Conservative Government has brought in a Bill far more Radical than any former Bill, and that it is very likely to be passed?" The answer I got was, "What stuff you talk! How can it be a Radical Reform Bill? Why, BRIGHT opposes it!" There was no answering that in a way which a "common jury" could understand. The Bill was supported by the Times and opposed by Mr. Bright; and therefore the mass of the Conservatives and of common moderate people, without distinction of party, had no conception of the effect. They said it was "London nonsense" if you tried to explain it to them. The nation indeed generally looks to the discussions in Parliament to enlighten it as to the effect of Bills. But in this case neither party, as a party, could speak out. Many, perhaps most of the intelligent Conservatives, were fearful of the consequences of the proposal; but as it was made by the heads of their own party, they did not like to oppose it, and the discipline of party carried them with it. On the other side, many, probably most of the intelligent Liberals, were in consternation at the Bill; they had been in the habit for years of proposing Reform Bills; they knew the points of difference between each Bill, and perceived that this was by far the most sweeping which had ever been proposed by any Ministry. But they were almost all unwilling to say so. They would have offended a large section in their constituencies if they had resisted a Tory Bill because it was too democratic; the extreme partisans of democracy would have said, "The enemies of the people have confidence enough in the people to entrust them with this power, but you, a 'Liberal,' and a professed friend of the people, have not that confidence; if that is so, we will never vote for you again". Many Radical members who had been asking for years for household suffrage were much more surprised than pleased at the near chance of obtaining it; they had asked for it as bargainers ask for the highest possible price, but they never expected to get it. Altogether the Liberals, or at least the extreme Liberals, were much like a man who has been pushing hard against an opposing door, till, on a sudden, the door opens, the resistance ceases, and he is thrown violently forward. Persons in such an unpleasant predicament can scarcely criticise effectually, and certainly the Liberals did not so criticise. We have had no such previous discussions as should guide our expectations from the Reform Bill, nor such as under ordinary circumstances we should have had. Nor does the experience of the last election much help us. The circumstances were too exceptional. In the first place, Mr. Gladstone's personal popularity was such as has not been seen since the time of Mr. Pitt, and such as may never be seen again. Certainly it will very rarely be seen. A bad speaker is said to have been asked how he got on as a candidate. "Oh," he answered, "when I do not know what to say, I say 'Gladstone,' and then they are sure to cheer, and I have time to think." In fact, that popularity acted as a guide both to constituencies and to members. The candidates only said they would vote with Mr. Gladstone, and the constituencies only chose those who said so. Even the minority could only be described as anti-Gladstone, just as the majority could only be described as pro-Gladstone. The remains, too, of the old electoral organisation were exceedingly powerful; the old voters voted as they had been told, and the new voters mostly voted with them. In extremely few cases was there any new and contrary organisation. At the last election, the trial of the new system hardly began, and, as far as it did begin, it was favoured by a peculiar guidance. In the meantime our statesmen have the greatest opportunities they have had for many years, and likewise the greatest duty. They have to guide the new voters in the exercise of the franchise; to guide them quietly, and without saying what they are doing, but still to guide them. The leading statesmen in a free country have great momentary power. They settle the conversation of mankind. It is they who, by a great speech or two, determine what shall be said and what shall be written for long after. They, in conjunction with their counsellors, settle the programme of their party--the "platform," as the Americans call it, on which they and those associated with them are to take their stand for the political campaign. It is by that programme, by a comparison of the programmes of different statesmen, that the world forms its judgment. The common ordinary mind is quite unfit to fix for itself what political question it shall attend to; it is as much as it can do to judge decently of the questions which drift down to it, and are brought before it; it almost never settles its topics; it can only decide upon the issues of those topics. And in settling what these questions shall be, statesmen have now especially a great responsibility if they raise questions which will excite the lower orders of mankind; if they raise questions on which those orders are likely to be wrong; if they raise questions on which the interest of those orders is not identical with, or is antagonistic to, the whole interest of the State, they will have done the greatest harm they can do. The future of this country depends on the happy working of a delicate experiment, and they will have done all they could to vitiate that experiment. Just when it is desirable that ignorant men, new to politics, should have good issues, and only good issues, put before them, these statesmen will have suggested bad issues. They will have suggested topics which will bind the poor as a class together; topics which will excite them against the rich; topics the discussion of which in the only form in which that discussion reaches their ear will be to make them think that some new law can make them comfortable--that it is the present law which makes them uncomfortable--that Government has at its disposal an inexhaustible fund out of which it can give to those who now want without also creating elsewhere other and greater wants. If the first work of the poor voters is to try to create a "poor man's paradise," as poor men are apt to fancy that Paradise, and as they are apt to think they can create it, the great political trial now beginning will simply fail. The wide gift of the elective franchise will be a great calamity to the whole nation, and to those who gain it as great a calamity as to any. I do not of course mean that statesmen can choose with absolute freedom what topics they will deal with and what they will not. I am of course aware that they choose under stringent conditions. In excited states of the public mind they have scarcely a discretion at all; the tendency of the public perturbation determines what shall and what shall not be dealt with. But, upon the other hand, in quiet times statesmen have great power; when there is no fire lighted, they can settle what fire shall be lit. And as the new suffrage is happily to be tried in a quiet time, the responsibility of our statesmen is great because their power is great too. And the mode in which the questions dealt with are discussed is almost as important as the selection of these questions. It is for our principal statesmen to lead the public, and not to let the public lead them. No doubt when statesmen live by public favour, as ours do, this is a hard saying, and it requires to be carefully limited. I do not mean that our statesmen should assume a pedantic and doctrinaire tone with the English people; if there is anything which English people thoroughly detest, it is that tone exactly. And they are right in detesting it; if a man cannot give guidance and communicate instruction formally without telling his audience "I am better than you; I have studied this as you have not," then he is not fit for a guide or an instructor. A statesman who should show that gaucherie would exhibit a defect of imagination, and expose an incapacity for dealing with men which would be a great hindrance to him in his calling. But much argument is not required to guide the public, still less a formal exposition of that argument. What is mostly needed is the manly utterance of clear conclusions; if a statesman gives these in a felicitous way (and if with a few light and humorous illustrations, so much the better), he has done his part. He will have given the text, the scribes in the newspapers will write the sermon. A statesman ought to show his own nature, and talk in a palpable way what is to him important truth. And so he will both guide and benefit the nation. But if, especially at a time when great ignorance has an unusual power in public affairs, he chooses to accept and reiterate the decisions of that ignorance, he is only the hireling of the nation, and does little save hurt it. I shall be told that this is very obvious, and that everybody knows that 2 and 2 make 4, and that there is no use in inculcating it. But I answer that the lesson is not observed in fact; people do not so do their political sums. Of all our political dangers, the greatest I conceive is that they will neglect the lesson. In plain English, what I fear is that both our political parties will bid for the support of the working man; that both of them will promise to do as he likes if he will only tell them what it is; that, as he now holds the casting vote in our affairs, both parties will beg and pray him to give that vote to them. I can conceive of nothing more corrupting or worse for a set of poor ignorant people than that two combinations of well-taught and rich men should constantly offer to defer to their decision, and compete for the office of executing it. Vox populi will be Vox diaboli if it is worked in that manner. And, on the other hand, my imagination conjures up a contrary danger. I can conceive that questions BEING raised which, if continually agitated, would combine the working men as a class together, the higher orders might have to consider whether they would concede the measure that would settle such questions, or whether they would risk the effect of the working men's combination. No doubt the question cannot be easily discussed in the abstract; much must depend on the nature of the measures in each particular case; on the evil they would cause if conceded; on the attractiveness of their idea to the working classes if refused. But in all cases it must be remembered that a political combination of the lower classes, as such and for their own objects, is an evil of the first magnitude; that a permanent combination of them would make them (now that so many of them have the suffrage) supreme in the country; and that their supremacy, in the state they now are, means the supremacy of ignorance over instruction and of numbers over knowledge. So long as they are not taught to act together, there is a chance of this being averted, and it can only be averted by the greatest wisdom and the greatest foresight in the higher classes. They must avoid, not only every evil, but every appearance of evil; while they have still the power they must remove, not only every actual grievance, but, where it is possible, every seeming grievance too; they must willingly concede every claim which they can safely concede, in order that they may not have to concede unwillingly some claim which would impair the safety of the country. This advice, too, will be said to be obvious; but I have the greatest fear that, when the time comes, it will be cast aside as timid and cowardly. So strong are the combative propensities of man that he would rather fight a losing battle than not fight at all. It is most difficult to persuade people that by fighting they may strengthen the enemy, yet that would be so here; since a losing battle--especially a long and well-fought one--would have thoroughly taught the lower orders to combine, and would have left the higher orders face to face with an irritated, organised, and superior voting power. The courage which strengthens an enemy and which so loses, not only the present battle, but many after battles, is a heavy curse to men and nations. In one minor respect, indeed, I think we may see with distinctness the effect of the Reform Bill of 1867. I think it has completed one change which the Act of 1832 began; it has completed the change which that Act made in the relation of the House of Lords to the House of Commons. As I have endeavoured in this book to explain, the literary theory of the English Constitution is on this point quite wrong as usual. According to that theory, the two Houses are two branches of the legislature, perfectly equal and perfectly distinct. But before the Act of 1832 they were not so distinct; there was a very large and a very strong common element. By their commanding influence in many boroughs and counties the Lords nominated a considerable part of the Commons; the majority of the other part were the richer gentry--men in most respects like the Lords, and sympathising with the Lords. Under the Constitution as it then was the two Houses were not in their essence distinct; they were in their essence similar; they were, in the main, not Houses of contrasted origin, but Houses of like origin. The predominant part of both was taken from the same class--from the English gentry, titled and untitled. By the Act of 1832 this was much altered. The aristocracy and the gentry lost their predominance in the House of Commons; that predominance passed to the middle class. The two Houses then became distinct, but then they ceased to be co-equal. The Duke of Wellington, in a most remarkable paper, has explained what pains he took to induce the Lords to submit to their new position, and to submit, time after time, their will to the will of the Commons. The Reform Act of 1867 has, I think, unmistakably completed the effect which the Act of 1832 began, but left unfinished. The middle class element has gained greatly by the second change, and the aristocratic element has lost greatly. If you examine carefully the lists of members, especially of the most prominent members, of either side of the House, you will not find that they are in general aristocratic names. Considering the power and position of the titled aristocracy, you will perhaps be astonished at the small degree in which it contributes to the active part of our governing assembly. The spirit of our present House of Commons is plutocratic, not aristocratic; its most prominent statesmen are not men of ancient descent or of great hereditary estate; they are men mostly of substantial means, but they are mostly, too, connected more or less closely with the new trading wealth. The spirit of the two Assemblies has become far more contrasted than it ever was. The full effect of the Reform Act of 1832 was indeed postponed by the cause which I mentioned just now. The statesmen who worked the system which was put up had themselves been educated under the system which was pulled down. Strangely enough, their predominant guidance lasted as long as the system which they created. Lord Palmerston, Lord Russell, Lord Derby, died or else lost their influence within a year or two of 1867. The complete consequences of the Act of 1832 upon the House of Lords could not be seen while the Commons were subject to such aristocratic guidance. Much of the change which might have been expected from the Act of 1832 was held in suspense, and did not begin till that measure had been followed by another of similar and greater power. The work which the Duke of Wellington in part performed has now, therefore, to be completed also. He met the half difficulty; we have to surmount the whole one. We have to frame such tacit rules, to establish such ruling but unenacted customs, as will make the House of Lords yield to the Commons when and as often as our new Constitution requires that it should yield. I shall be asked, How often is that, and what is the test by which you know it? I answer that the House of Lords must yield whenever the opinion of the Commons is also the opinion of the nation, and when it is clear that the nation has made up its mind. Whether or not the nation has made up its mind is a question to be decided by all the circumstances of the case, and in the common way in which all practical questions are decided. There are some people who lay down a sort of mechanical test; they say the House of Lords should be at liberty to reject a measure passed by the Commons once or more, and then if the Commons send it up again and again, infer that the nation is determined. But no important practical question in real life can be uniformly settled by a fixed and formal rule in this way. This rule would prove that the Lords might have rejected the Reform Act of 1832. Whenever the nation was both excited and determined, such a rule would be an acute and dangerous political poison. It would teach the House of Lords that it might shut its eyes to all the facts of real life and decide simply by an abstract formula. If in 1832 the Lords had so acted, there would have been a revolution. Undoubtedly there is a general truth in the rule. Whether a bill has come up once only, or whether it has come up several times, is one important fact in judging whether the nation is determined to have that measure enacted; it is an indication, but it is only one of the indications. There are others equally decisive. The unanimous voice of the people may be so strong, and may be conveyed through so many organs, that it may be assumed to be lasting. Englishmen are so very miscellaneous, that that which has REALLY convinced a great and varied majority of them for the present may fairly be assumed to be likely to continue permanently to convince them. One sort might easily fall into a temporary and erroneous fanaticism, but all sorts simultaneously are very unlikely to do so. I should venture so far as to lay down for an approximate rule, that the House of Lords ought, on a first-class subject, to be slow--very slow--in rejecting a Bill passed even once by a large majority of the House of Commons. I would not of course lay this down as an unvarying rule; as I have said, I have for practical purposes no belief in unvarying rules. Majorities may be either genuine or fictitious, and if they are not genuine, if they do not embody the opinion of the representative as well as the opinion of the constituency, no one would wish to have any attention paid to them. But if the opinion of the nation be strong and be universal, if it be really believed by members of Parliament, as well as by those who send them to Parliament, in my judgment the Lords should yield at once, and should not resist it. My main reason is one which has not been much urged. As a theoretical writer I can venture to say, what no elected member of Parliament, Conservative or Liberal, can venture to say, that I am exceedingly afraid of the ignorant multitude of the new constituencies. I wish to have as great and as compact a power as possible to resist it. But a dissension between the Lords and Commons divides that resisting power; as I have explained, the House of Commons still mainly represents the plutocracy, the Lords represent the aristocracy. The main interest of both these classes is now identical, which is to prevent or to mitigate the rule of uneducated numbers. But to prevent it effectually, they must not quarrel among themselves; they must not bid one against the other for the aid of their common opponent. And this is precisely the effect of a division between Lords and Commons. The two great bodies of the educated rich go to the constituencies to decide between them, and the majority of the constituencies now consist of the uneducated poor. This cannot be for the advantage of any one. In doing so besides the aristocracy forfeit their natural position--that by which they would gain most power, and in which they would do most good. They ought to be the heads of the plutocracy. In all countries new wealth is ready to worship old wealth, if old wealth will only let it, and I need not say that in England new wealth is eager in its worship. Satirist after satirist has told us how quick, how willing, how anxious are the newly-made rich to associate with the ancient rich. Rank probably in no country whatever has so much "market" value as it has in England just now. Of course there have been many countries in which certain old families, whether rich or poor, were worshipped by whole populations with a more intense and poetic homage; but I doubt if there has ever been any in which all old families and all titled families received more ready observance from those who were their equals, perhaps their superiors, in wealth, their equals in culture, and their inferiors only in descent and rank. The possessors of the "material" distinctions of life, as a political economist would class them, rush to worship those who possess the immaterial distinctions. Nothing can be more politically useful than such homage, if it be skilfully used; no folly can be idler than to repel and reject it. The worship is the more politically important because it is the worship of the political superior for the political inferior. At an election the non-titled are much more powerful than the titled. Certain individual peers have, from their great possessions, great electioneering influence, but, as a whole, the House of Peers is not a principal electioneering force. It has so many poor men inside it, and so many rich men outside it, that its electioneering value is impaired. Besides, it is in the nature of the curious influence of rank to work much more on men singly than on men collectively; it is an influence which most men--at least most Englishmen--feel very much, but of which most Englishmen are somewhat ashamed. Accordingly, when any number of men are collected together, each of whom worships rank in his heart, the whole body will patiently hear--in many cases will cheer and approve--some rather strong speeches against rank. Each man is a little afraid that his "sneaking kindness for a lord," as Mr. Gladstone put it, be found out; he is not sure how far that weakness is shared by those around him. And thus Englishmen easily find themselves committed to anti-aristocratic sentiments which are the direct opposite of their real feeling, and their collective action may be bitterly hostile to rank while the secret sentiment of each separately is especially favourable to rank. In 1832 the close boroughs, which were largely held by peers, and were still more largely supposed to be held by them, were swept away with a tumult of delight; and in another similar time of great excitement, the Lords themselves, if they deserve it, might pass away. The democratic passions gain by fomenting a diffused excitement, and by massing men in concourses; the aristocratic sentiments gain by calm and quiet, and act most on men by themselves, in their families, and when female influence is not absent. The overt electioneering power of the Lords does not at all equal its real social power. The English plutocracy, as is often said of something yet coarser, must be "humoured, not drove"; they may easily be impelled against the aristocracy, though they respect it very much; and as they are much stronger than the aristocracy, they might, if angered, even destroy it; though in order to destroy it, they must help to arouse a wild excitement among the ignorant poor, which, if once roused, may not be easily calmed, and which may be fatal to far more than its beginners intend. This is the explanation of the anomaly which puzzles many clever lords. They think, if they do not say, "Why are we pinned up here? Why are we not in the Commons where we could have so much more power? Why is this nominal rank given us, at the price of substantial influence? If we prefer real weight to unreal prestige, why may we not have it?" The reply is, that the whole body of the Lords have an incalculably greater influence over society while there is still a House of Lords, than they would have if the House of Lords were abolished; and that though one or two clever young peers might do better in the Commons, the old order of peers, young and old, clever and not clever, is much better where it is. The selfish instinct of the mass of peers on this point is a keener and more exact judge of the real world than the fine intelligence of one or two of them. If the House of Peers ever goes, it will go in a storm, and the storm will not leave all else as it is. It will not destroy the House of Peers and leave the rich young peers, with their wealth and their titles, to sit in the Commons. It would probably sweep all titles before it--at least all legal titles--and somehow or other it would break up the curious system by which the estates of great families all go to the eldest son. That system is a very artificial one; you may make a fine argument for it, but you cannot make a loud argument, an argument which would reach and rule the multitude. The thing looks like injustice, and in a time of popular passion it would not stand. Much short of the compulsory equal division of the Code Napoleon, stringent clauses might be provided to obstruct and prevent these great aggregations of property. Few things certainly are less likely than a violent tempest like this to destroy large and hereditary estates. But then, too, few things are less likely than an outbreak to destroy the House of Lords--my point is, that a catastrophe which levels one will not spare the other. I conceive, therefore, that the great power of the House of Lords should be exercised very timidly and very cautiously. For the sake of keeping the headship of the plutocracy, and through that of the nation, they should not offend the plutocracy; the points upon which they have to yield are mostly very minor ones, and they should yield many great points rather than risk the bottom of their power. They should give large donations out of income, if by so doing they keep, as they would keep, their capital intact. The Duke of Wellington guided the House of Lords in this manner for years, and nothing could prosper better for them or for the country, and the Lords have only to go back to the good path in which he directed them. The events of 1870 caused much discussion upon life peerages, and we have gained this great step, that whereas the former leader of the Tory party in the Lords--Lord Lyndhurst--defeated the last proposal to make life peers, Lord Derby, when leader of that party, desired to create them. As I have given in this book what seemed to me good reasons for making them, I need not repeat those reasons here; I need only say how the notion stands in my judgment now. I cannot look on life peerages in the way in which some of their strongest advocates regard them; I cannot think of them as a mode in which a permanent opposition or a contrast between the Houses of Lords and Commons is to be remedied. To be effectual in that way, life peerages must be very numerous. Now the House of Lords will never consent to a very numerous life peerage without a storm; they must be in terror to do it, or they will not do it. And if the storm blows strongly enough to do so much, in all likelihood it will blow strongly enough to do much more. If the revolution is powerful enough and eager enough to make an immense number of life peers, probably it will sweep away the hereditary principle in the Upper Chamber entirely. Of course one may fancy it to be otherwise; we may conceive of a political storm just going to a life-peerage limit, and then stopping suddenly. But in politics we must not trouble ourselves with exceedingly exceptional accidents; it is quite difficult enough to count on and provide for the regular and plain probabilities. To speak mathematically, we may easily miss the permanent course of the political curve if we engross our minds with its cusps and conjugate points. Nor, on the other hand, can I sympathise with the objection to life peerages which some of the Radical party take and feel. They think it will strengthen the Lords, and so make them better able to oppose the Commons; they think, if they do not say: "The House of Lords is our enemy and that of all Liberals; happily the mass of it is not intellectual; a few clever men are born there which we cannot help, but we will not 'vaccinate' it with genius; we will not put in a set of clever men for their lives who may as likely as not turn against us". This objection assumes that clever peers are just as likely to oppose the Commons as stupid peers. But this I deny. Most clever men who are in such a good place as the House of Lords plainly is, will be very unwilling to lose it if they can help it; at the clear call of a great duty they might lose it, but only at such a call. And it does not take a clever man to see that systematic opposition of the Commons is the only thing which can endanger the Lords, or which will make an individual peer cease to be a peer. The greater you make the SENSE of the Lords, the more they will see that their plain interest is to make friends of the plutocracy, and to be the chiefs of it, and not to wish to oppose the Commons where that plutocracy rules. It is true that a completely new House of Lords, mainly composed of men of ability, selected because they were able, might very likely attempt to make ability the predominant power in the State, and to rival, if not conquer, the House of Commons, where the standard of intelligence is not much above the common English average. But in the present English world such a House of Lords would soon lose all influence. People would say, "it was too clever by half," and in an Englishman's mouth that means a very severe censure. The English people would think it grossly anomalous if their elected assembly of rich men were thwarted by a nominated assembly of talkers and writers. Sensible men of substantial means are what we wish to be ruled by, and a peerage of genius would not compare with it in power. It is true, too, that at present some of the cleverest peers are not so ready as some others to agree with the Commons. But it is not unnatural that persons of high rank and of great ability should be unwilling to bend to persons of lower rank, and of certainly not greater ability. A few of such peers (for they are very few) might say, "We had rather not have our peerage if we are to buy it at the price of yielding". But a life peer who had fought his way up to the peers, would never think so. Young men who are born to rank may risk it, not middle-aged or old men who have earned their rank. A moderate number of life peers would almost always counsel moderation to the Lords, and would almost always be right in counselling it. Recent discussions have also brought into curious prominence another part of the Constitution. I said in this book that it would very much surprise people if they were only told how many things the Queen could do without consulting Parliament, and it certainly has so proved, for when the Queen abolished Purchase in the Army by an act of prerogative (after the Lords had rejected the bill for doing so), there was a great and general astonishment. But this is nothing to what the Queen can by law do without consulting Parliament. Not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the General Commanding-in-Chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a "university"; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all the action of civil government within the Government, could disgrace the nation by a bad war or peace, and could, by disbanding our forces, whether land or sea, leave us defenceless against foreign nations. Why do we not fear that she would do this, or any approach to it? Because there are two checks--one ancient and coarse, the other modern and delicate. The first is the check of impeachment. Any Minister who advised the Queen so to use her prerogative as to endanger the safety of the realm, might be impeached for high treason, and would be so. Such a Minister would, in our technical law, be said to have levied, or aided to levy, "war against the Queen". This counsel to her so to use her prerogative would by the Judge be declared to be an act of violence against herself, and in that peculiar but effectual way the offender could be condemned and executed. Against all gross excesses of the prerogative this is a sufficient protection. But it would be no protection against minor mistakes; any error of judgment committed bona fide, and only entailing consequences which one person might say were good, and another say were bad, could not be so punished. It would be possible to impeach any Minister who disbanded the Queen's army, and it would be done for certain. But suppose a Minister were to reduce the army or the navy much below the contemplated strength--suppose he were only to spend upon them one-third of the amount which Parliament had permitted him to spend--suppose a Minister of Lord Palmerston's principles were suddenly and while in office converted to the principles of Mr. Bright and Mr. Cobden, and were to act on those principles, he could not be impeached. The law of treason neither could nor ought to be enforced against an act which was an error of judgment, not of intention--which was in good faith intended not to impair the well-being of the State, but to promote and augment it. Against such misuses of the prerogative our remedy is a change of Ministry. And in general this works very well. Every Minister looks long before he incurs that penalty, and no one incurs it wantonly. But, nevertheless, there are two defects in it. The first is that it may not be a remedy at all; it may be only a punishment. A Minister may risk his dismissal; he may do some act difficult to undo, and then all which may be left will be to remove and censure him. And the second is that it is only one House of Parliament which has much to say to this remedy, such as it is; the House of Commons only can remove a Minister by a vote of censure. Most of the Ministries for thirty years have never possessed the confidence of the Lords, and in such cases a vote of censure by the Lords could therefore have but little weight; it would be simply the particular expression of a general political disapproval. It would be like a vote of censure on a Liberal Government by the Carlton, or on a Tory Government by the Reform Club. And in no case has an adverse vote by the Lords the same decisive effect as a vote of the Commons; the Lower House is the ruling and the choosing House, and if a Government really possesses that, it thoroughly possesses nine-tenths of what it requires. The support of the Lords is an aid and a luxury; that of the Commons is a strict and indispensable necessary. These difficulties are particularly raised by questions of foreign policy. On most domestic subjects, either custom or legislation has limited the use of the prerogative. The mode of governing the country, according to the existing laws, is mostly worn into a rut, and most administrations move in it because it is easier to move there than anywhere else. Most political crises--the decisive votes, which determine the fate of Government--are generally either on questions of foreign policy or of new laws; and the questions of foreign policy come out generally in this way, that the Government has already done something, and that it is for the one part of the legislature alone--for the House of Commons, and not for the House of Lords--to say whether they have or have not forfeited their place by the treaty they have made. I think every one must admit that this is not an arrangement which seems right on the face of it. Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous. In the older forms of the English Constitution, this may have been quite right; the power was then really lodged in the Crown, and because Parliament met very seldom, and for other reasons, it was then necessary that, on a multitude of points, the Crown should have much more power than is amply sufficient for it at present. But now the real power is not in the Sovereign, it is in the Prime Minister and in the Cabinet--that is, in the hands of a committee appointed by Parliament, and of the chairman of that committee. Now, beforehand, no one would have ventured to suggest that a committee of Parliament on foreign relations should be able to commit the country to the greatest international obligations without consulting either Parliament or the country. No other select committee has any comparable power; and considering how carefully we have fettered and limited the powers of all other subordinate authorities, our allowing so much discretionary power on matters peculiarly dangerous and peculiarly delicate to rest in the sole charge of one secret committee is exceedingly strange. No doubt it may be beneficial; many seeming anomalies are so, but at first sight it does not look right. I confess that I should see no advantage in it if our two Chambers were sufficiently homogeneous and sufficiently harmonious. On the contrary, if those two Chambers were as they ought to be, I should believe it to be a great defect. If the administration had in both Houses a majority--not a mechanical majority ready to accept anything, but a fair and reasonable one, predisposed to think the Government right, but not ready to find it to be so in the face of facts and in opposition to whatever might occur; if a good Government were thus placed, I should think it decidedly better that the agreements of the administration with foreign powers should be submitted to Parliament. They would then receive that which is best for all arrangements of business, an understanding and sympathising criticism, but still a criticism. The majority of the legislature, being well disposed to the Government, would not "find" against it except it had really committed some big and plain mistake. But if the Government had made such a mistake, certainly the majority of the legislature would find against it. In a country fit for Parliamentary institutions, the partisanship of members of the legislature never comes in manifest opposition to the plain interest of the nation; if it did, the nation being (as are all nations capable of Parliamentary institutions) constantly attentive to public affairs, would inflict on them the maximum Parliamentary penalty at the next election and at many future elections. It would break their career. No English majority dare vote for an exceedingly bad treaty; it would rather desert its own leader than ensure its own ruin. And an English minority, inheriting a long experience of Parliamentary affairs, would not be exceedingly ready to reject a treaty made with a foreign Government. The leaders of an English Opposition are very conversant with the school-boy maxim, "Two can play at that fun". They know that the next time they are in office the same sort of sharp practice may be used against them, and therefore they will not use it. So strong is this predisposition, that not long since a subordinate member of the Opposition declared that the "front benches" of the two sides of the House--that is, the leaders of the Government and the leaders of the Opposition--were in constant tacit league to suppress the objections of independent members. And what he said is often quite true. There are often seeming objections which are not real objections; at least, which are, in the particular cases, outweighed by counter-considerations; and these "independent members," having no real responsibility, not being likely to be hurt themselves if they make a mistake, are sure to blurt out, and to want to act upon. But the responsible heads of the party who may have to decide similar things, or even the same things themselves, will not permit it. They refuse, out of interest as well as out of patriotism, to engage the country in a permanent foreign scrape, to secure for themselves and their party a momentary home advantage. Accordingly, a Government which negotiated a treaty would feel that its treaty would be subject certainly to a scrutiny, but still to a candid and lenient scrutiny; that it would go before judges, of whom the majority were favourable, and among whom the most influential part of the minority were in this case much opposed to excessive antagonism. And this seems to be the best position in which negotiators can be placed, namely, that they should be sure to have to account to considerate and fair persons, but not to have to account to inconsiderate and unfair ones. At present the Government which negotiates a treaty can hardly be said to be accountable to any one. It is sure to be subjected to vague censure. Benjamin Franklin said, "I have never known a peace made, even the most advantageous, that was not censured as inadequate, and the makers condemned as injudicious or corrupt. 'Blessed are the peace-makers' is, I suppose, to be understood in the other world, for in this they are frequently cursed." And this is very often the view taken now in England of treaties. There being nothing practical in the Opposition--nothing likely to hamper them hereafter--the leaders of Opposition are nearly sure to suggest every objection. The thing is done and cannot be undone, and the most natural wish of the Opposition leaders is to prove that if they had been in office, and it therefore had been theirs to do it, they could have done it much better. On the other hand, it is quite possible that there may be no real criticism on a treaty at all; or the treaty has been made by the Government, and as it cannot be unmade by any one, the Opposition may not think it worth while to say much about it. The Government, therefore, is never certain of any criticism; on the contrary, it has a good chance of escaping criticism; but if there be any criticism the Government must expect it to be bitter, sharp, and captious--made as an irresponsible objector would make it, and not as a responsible statesman, who may have to deal with a difficulty if he make it, and therefore will be cautious how he says anything which may make it. This is what happens in common cases; and in the uncommon--the ninety-ninth case in a hundred--in which the Opposition hoped to turn out the Government because of the alleged badness of the treaty they have made, the criticism is sure to be of the most undesirable character, and to say what is most offensive to foreign nations. All the practised acumen of anti-Government writers and speakers is sure to be engaged in proving that England has been imposed upon--that, as was said in one case, "The moral and the intellectual qualities have been divided; that our negotiation had the moral, and the negotiation on the other side the intellectual," and so on. The whole pitch of party malice is then expended, because there is nothing to check the party in opposition. The treaty has been made, and though it may be censured, and the party which made it ousted, yet the difficulty it was meant to cure is cured, and the opposing party, if it takes office, will not have that difficulty to deal with. In abstract theory these defects in our present practice would seem exceedingly great, but in practice they are not so. English statesmen and English parties have really a great patriotism; they can rarely be persuaded even by their passions or their interest to do anything contrary to the real interest of England, or anything which would lower England in the eyes of foreign nations. And they would seriously hurt themselves if they did. But still these are the real tendencies of our present practice, and these are only prevented by qualities in the nation and qualities in our statesmen, which will just as much exist if we change our practice. It certainly would be in many ways advantageous to change it. If we require that in some form the assent of Parliament shall be given to such treaties, we should have a real discussion prior to the making of such treaties. We should have the reasons for the treaty plainly stated, and also the reasons against it. At present, as we have seen, the discussion is unreal. The thing is done and cannot be altered; and what is said often ought not to be said because it is captious, and what is not said ought as often to be said because it is material. We should have a manlier and plainer way of dealing with foreign policy, if Ministers were obliged to explain clearly their foreign contracts before they were valid, just as they have to explain their domestic proposals before they can become laws. The objections to this are, as far as I know, three, and three only. First, that it would not be always desirable for Ministers to state clearly the motives which induced them to agree to foreign compacts. "Treaties," it is said, "are in one great respect different from laws, they concern not only the Government which binds, the nation so bound, but a third party too--a foreign country--and the feelings of that country are to be considered as well as our own. And that foreign country will, probably, in the present state of the world be a despotic one, where discussion is not practised, where it is not understood, where the expressions of different speakers are not accurately weighed, where undue offence may easily be given." This objection might be easily avoided by requiring that the discussion upon treaties in Parliament like that discussion in the American Senate should be "in secret session," and that no report should be published of it. But I should, for my own part, be rather disposed to risk a public debate. Despotic nations now cannot understand England; it is to them an anomaly "chartered by Providence"; they have been time out of mind puzzled by its institutions, vexed at its statesmen, and angry at its newspapers. A little more of such perplexity and such vexation does not seem to me a great evil. And if it be meant, as it often is meant, that the whole truth as to treaties cannot be spoken out, I answer, that neither can the whole truth as to laws. All important laws affect large "vested interests"; they touch great sources of political strength; and these great interests require to be treated as delicately, and with as nice a manipulation of language, as the feelings of any foreign country. A Parliamentary Minister is a man trained by elaborate practice not to blurt out crude things, and an English Parliament is an assembly which particularly dislikes anything gauche or anything imprudent. They would still more dislike it if it hurt themselves and the country as well as the speaker. I am, too, disposed to deny entirely that there can be any treaty for which adequate reasons cannot be given to the English people, which the English people ought to make. A great deal of the reticence of diplomacy had, I think history shows, much better be spoken out. The worst families are those in which the members never really speak their minds to one another; they maintain an atmosphere of unreality, and every one always lives in an atmosphere of suppressed ill-feeling. It is the same with nations. The parties concerned would almost always be better for hearing the substantial reasons which induced the negotiators to make the treaty, and the negotiators would do their work much better, for half the ambiguities in treaties are caused by the negotiators not liking the fact or not taking the pains to put their own meaning distinctly before their own minds. And they would be obliged to make it plain if they had to defend it and argue on it before a great assembly. Secondly, it may be objected to the change suggested that Parliament is not always sitting, and that if treaties required its assent, it might have to be sometimes summoned out of season, or the treaties would have to be delayed. And this is as far as it goes a just objection, but I do not imagine that it goes far. The great bulk of treaties could wait a little without harm, and in the very few cases when urgent haste is necessary, an autumn session of Parliament could well be justified, for the occasion must be of grave and critical importance. Thirdly, it may be said that if we required the consent of both Houses of Parliament to foreign treaties before they were valid we should much augment the power of the House of Lords. And this is also, I think, a just objection as far as it goes. The House of Lords, as it cannot turn out the Ministry for making treaties, has in no case a decisive weight in foreign policy, though its debates on them are often excellent; and there is a real danger at present in giving it such weight. They are not under the same guidance as the House of Commons. In the House of Commons, of necessity, the Ministry has a majority, and the majority will agree to the treaties the leaders have made if they fairly can. They will not be anxious to disagree with them. But the majority of the House of Lords may always be, and has lately been generally an opposition majority, and therefore the treaty may be submitted to critics exactly pledged to opposite views. It might be like submitting the design of an architect known to hold "mediaeval principles" to a committee wedded to "classical principles". Still, upon the whole, I think the augmentation of the power of the peers might be risked without real fear of serious harm. Our present practice, as has been explained, only works because of the good sense of those by whom it is worked, and the new practice would have to rely on a similar good sense and practicality too. The House of Lords must deal with the assent to treaties as they do with the assent to laws; they must defer to the voice of the country and the authority of the Commons even in cases where their own judgment might guide them otherwise. In very vital treaties probably, being Englishmen, they would be of the same mind as the rest of Englishmen. If in such cases they showed a reluctance to act as the people wished, they would have the same lesson taught them as on vital and exciting questions of domestic legislation, and the case is not so likely to happen, for on these internal and organic questions the interest and the feeling of the peers is often presumably opposed to that of other classes--they may be anxious not to relinquish the very power which other classes are anxious to acquire; but in foreign policy there is no similar antagonism of interest--a peer and a non-peer have presumably in that matter the same interest and the same wishes. Probably, if it were considered to be desirable to give to Parliament a more direct control over questions of foreign policy than it possesses now, the better way would be not to require a formal vote to the treaty clause by clause. This would entail too much time, and would lead to unnecessary changes in minor details. It would be enough to let the treaty be laid upon the table of both Houses, say for fourteen days, and to acquire validity unless objected to by one House or other before that interval had expired. II. This is all which I think I need say on the domestic events which have changed, or suggested changes, in the English Constitution since this book was written. But there are also some foreign events which have illustrated it, and of these I should like to say a few words. Naturally, the most striking of these illustrative changes comes from France. Since 1789 France has always been trying political experiments, from which others may profit much, though as yet she herself has profited little. She is now trying one singularly illustrative of the English Constitution. When the first edition of this book was published I had great difficulty in persuading many people that it was possible in a non-monarchical State, for the real chief of the practical executive--the Premier as we should call him--to be nominated and to be removable by the vote of the National Assembly. The United States and its copies were the only present and familiar Republics, and in these the system was exactly opposite. The executive was there appointed by the people as the legislature was too. No conspicuous example of any other sort of Republic then existed. But now France has given an example--M. Thiers is (with one exception) just the chef du pouvoir executif that I endeavoured more than once in this book to describe. He is appointed by and is removable by the Assembly. He comes down and speaks in it just as our Premier does; he is responsible for managing it just as our Premier is. No one can any longer doubt the possibility of a republic in which the executive and the legislative authorities were united and fixed; no one can assert such union to be the incommunicable attribute of a Constitutional Monarchy. But, unfortunately, we can as yet only infer from this experiment that such a Constitution is possible; we cannot as yet say whether it will be bad or good. The circumstances are very peculiar, and that in three ways. First, the trial of a specially Parliamentary Republic, of a Republic where Parliament appoints the Minister, is made in a nation which has, to say the least of it, no peculiar aptitude for Parliamentary Government; which has possibly a peculiar inaptitude for it. In the last but one of these essays I have tried to describe one of the mental conditions of Parliamentary Government, which I call "rationality," by which I do not mean reasoning power, but rather the power of hearing the reasons of others, of comparing them quietly with one's own reasons, and then being guided by the result. But a French Assembly is not easy to reason with. Every assembly is divided into parties and into sections of parties, and in France each party, almost every section of a party, begins not to clamour but to scream, and to scream as only Frenchmen can, as soon as it hears anything which it particularly dislikes. With an Assembly in this temper, real discussion is impossible, and Parliamentary government is impossible too, because the Parliament can neither choose men nor measures. The French assemblies under the Restored Monarchy seem to have been quieter, probably because being elected from a limited constituency they did not contain so many sections of opinion; they had fewer irritants and fewer species of irritability. But the assemblies of the '48 Republic were disorderly in the extreme. I saw the last myself, and can certify that steady discussion upon a critical point was not possible in it. There was not an audience willing to hear. The Assembly now sitting at Versailles is undoubtedly also, at times, most tumultuous, and a Parliamentary government in which it governs must be under a peculiar difficulty, because as a sovereign it is unstable, capricious, and unruly. The difficulty is the greater because there is no check, or little, from the French nation upon the Assembly. The French, as a nation, do not care for or appreciate Parliamentary government. I have endeavoured to explain how difficult it is for inexperienced mankind to take to such a government; how much more natural, that is, how much more easy to uneducated men is loyalty to a monarch. A nation which does not expect good from a Parliament, cannot check or punish a Parliament. France expects, I fear, too little from her Parliaments ever to get what she ought. Now that the suffrage is universal, the average intellect and the average culture of the constituent bodies are excessively low; and even such mind and culture as there is has long been enslaved to authority; the French peasant cares more for standing well with his present prefet than for anything else whatever; he is far too ignorant to check and watch his Parliament, and far too timid to think of doing either if the executive authority nearest to him does not like it. The experiment of a strictly Parliamentary Republic--of a Republic where the Parliament appoints the executive--is being tried in France at an extreme disadvantage, because in France a Parliament is unusually likely to be bad, and unusually likely also to be free enough to show its badness. Secondly, the present polity of France is not a copy of the whole effective part of the British Constitution, but only a part of it. By our Constitution nominally the Queen, but really the Prime Minister, has the power of dissolving the Assembly. But M. Thiers has no such power; and therefore, under ordinary circumstances, I believe, the policy would soon become unmanageable. The result would be, as I have tried to explain, that the Assembly would be always changing its Ministry, that having no reason to fear the penalty which that change so often brings in England, they would be ready to make it once a month. Caprice is the characteristic vice of miscellaneous assemblies, and without some check their selection would be unceasingly mutable. This peculiar danger of the present Constitution of France has however been prevented by its peculiar circumstances. The Assembly have not been inclined to remove M. Thiers, because in their lamentable present position they could not replace M. Thiers. He has a monopoly of the necessary reputation. It is the Empire--the Empire which he always opposed--that has done him this kindness. For twenty years no great political reputation could arise in France. The Emperor governed and no one member could show a capacity for government. M. Rouher, though of vast real ability, was in the popular idea only the Emperor's agent; and even had it been otherwise, M. Rouher, the one great man of Imperialism, could not have been selected as a head of the Government, at a moment of the greatest reaction against the Empire. Of the chiefs before the twenty years' silence, of the eminent men known to be able to handle Parliaments and to govern Parliaments, M. Thiers was the only one still physically able to begin again to do so. The miracle is, that at seventy-four even he should still be able. As no other great chief of the Parliament regime existed, M. Thiers is not only the best choice, but the only choice. If he were taken away, it would be most difficult to make any other choice, and that difficulty keeps him where he is. At every crisis the Assembly feels that after M. Thiers "the deluge," and he lives upon that feeling. A change of the President, though legally simple, is in practice all but impossible; because all know that such a change might be a change, not only of the President, but of much more too: that very probably it might be a change of the polity--that it might bring in a Monarchy or an Empire. Lastly, by a natural consequence of the position, M. Thiers does not govern as a Parliamentary Premier governs. He is not, he boasts that he is not, the head of a party. On the contrary, being the one person essential to all parties, he selects Ministers from all parties, he constructs a Cabinet in which no one Minister agrees with any other in anything, and with all the members of which he himself frequently disagrees. The selection is quite in his hand. Ordinarily a Parliamentary Premier cannot choose; he is brought in by a party; he is maintained in office by a party; and that party requires that as they aid him, he shall aid them; that as they give him the very best thing in the State, he shall give them the next best things. But M. Thiers is under no such restriction. He can choose as he likes, and does choose. Neither in the selection of his Cabinet nor in the management of the Chamber, is M. Thiers guided as a similar person in common circumstances would have to be guided. He is the exception of a moment; he is not the example of a lasting condition. For these reasons, though we may use the present Constitution of France as a useful aid to our imaginations, in conceiving of a purely Parliamentary Republic, of a monarchy minus the monarch, we must not think of it as much more. It is too singular in its nature and too peculiar in its accidents to be a guide to anything except itself. In this essay I made many remarks on the American Constitution, in comparison with the English; and as to the American Constitution we have had a whole world of experience since I first wrote. My great object was to contrast the office of President as an executive officer and to compare it with that of a Prime Minister; and I devoted much space to showing that in one principal respect the English system is by far the best. The English Premier being appointed by the selection, and being removable at the pleasure, of the preponderant Legislative Assembly, is sure to be able to rely on that Assembly. If he wants legislation to aid his policy he can obtain that legislation; he can carry out that policy. But the American President has no similar security. He is elected in one way, at one time, and Congress (no matter which House) is elected in another way, at another time. The two have nothing to bind them together, and in matter of fact, they continually disagree. This was written in the time of Mr. Lincoln, when Congress, the President, and all the North were united as one man in the war against the South. There was then no patent instance of mere disunion. But between the time when the essays were first written in the Fortnightly, and their subsequent junction into a book, Mr. Lincoln was assassinated, and Mr. Johnson, the Vice-President, became President, and so continued for nearly four years. At such a time the characteristic evils of the Presidential system were shown most conspicuously. The President and the Assembly, so far from being (as it is essential to good government that they should be) on terms of close union, were not on terms of common courtesy. So far from being capable of a continuous and concerted co-operation they were all the while trying to thwart one another. He had one plan for the pacification of the South and they another; they would have nothing to say to his plans, and he vetoed their plans as long as the Constitution permitted, and when they were, in spite of him, carried, he, as far as he could (and this was very much), embarrassed them in action. The quarrel in most countries would have gone beyond the law, and come to blows; even in America, the most law-loving of countries, it went as far as possible within the law. Mr. Johnson described the most popular branch of the legislature--the House of Representatives--as a body "hanging on the verge of government"; and that House impeached him criminally, in the hope that in that way they might get rid of him civilly. Nothing could be so conclusive against the American Constitution, as a Constitution, as that incident. A hostile legislature and a hostile executive were so tied together, that the legislature tried, and tried in vain, to rid itself of the executive by accusing it of illegal practices. The legislature was so afraid of the President's legal power that it unfairly accused him of acting beyond the law. And the blame thus cast on the American Constitution is so much praise to be given to the American political character. Few nations, perhaps scarcely any nation, could have borne such a trial so easily and so perfectly. This was the most striking instance of disunion between the President and the Congress that has ever yet occurred, and which probably will ever occur. Probably for very many years the United States will have great and painful reason to remember that at the moment of all their history, when it was most important to them to collect and concentrate all the strength and wisdom of their policy on the pacification of the South, that policy was divided by a strife in the last degree unseemly and degrading. But it will be for a competent historian hereafter to trace out this accurately and in detail; the time is yet too recent, and I cannot pretend that I know enough to do so. I cannot venture myself to draw the full lessons from these events; I can only predict that when they are drawn, those lessons will be most important, and most interesting. There is, however, one series of events which have happened in America since the beginning of the Civil War, and since the first publication of these essays, on which I should wish to say something in detail--I mean the financial events. These lie within the scope of my peculiar studies, and it is comparatively easy to judge of them, since whatever may be the case with refined statistical reasoning, the great results of money matters speak to and interest all mankind. And every incident in this part of American financial history exemplifies the contrast between a Parliamentary and Presidential government. The distinguishing quality of Parliamentary government is, that in each stage of a public transaction there is a discussion; that the public assist at this discussion; that it can, through Parliament, turn out an administration which is not doing as it likes, and can put in an administration which will do as it likes. But the characteristic of a Presidential government is, in a multitude of cases, that there is no such discussion; that when there is a discussion the fate of Government does not turn upon it, and, therefore, the people do not attend to it; that upon the whole the administration itself is pretty much doing as it likes, and neglecting as it likes, subject always to the check that it must not too much offend the mass of the nation. The nation commonly does not attend, but if by gigantic blunders you make it attend, it will remember it and turn you out when its time comes; it will show you that your power is short, and so on the instant weaken that power; it will make your present life in office unbearable and uncomfortable by the hundred modes in which a free people can, without ceasing, act upon the rulers which it elected yesterday, and will have to reject or re-elect to-morrow. In finance the most striking effect in America has, on the first view of it, certainly been good. It has enabled the Government to obtain and to keep a vast surplus of revenue over expenditure. Even before the Civil War it did this--from 1837 to 1857. Mr. Wells tells us that, strange as it may seem, "there was not a single year in which the unexpended balance in the National Treasury--derived from various sources--at the end of the year, was not in excess of the total expenditure of the preceding year; while in not a few years the unexpended balance was absolutely greater than the sum of the entire expenditure of the twelve months preceding". But this history before the war is nothing to what has happened since. The following are the surpluses of revenue over expenditure since the end of the Civil War:-- Year ending June 30. Surplus. (pounds) 1866 . . . . . . . . 5,593,000 1867 . . . . . . . . 21,586,000 1868 . . . . . . . . 4,242,000 1869 . . . . . . . . 7,418,000 1870 . . . . . . . . 18,627,000 1871 . . . . . . . . 16,712,000 No one who knows anything of the working of Parliamentary government, will for a moment imagine that any Parliament would have allowed any executive to keep a surplus of this magnitude. In England, after the French war, the Government of that day, which had brought it to a happy end, which had the glory of Waterloo, which was in consequence exceedingly strong, which had besides elements of strength from close boroughs and Treasury influence such as certainly no Government has ever had since, and such perhaps as no Government ever had before--that Government proposed to keep a moderate surplus and to apply it to the reduction of the debt, but even this the English Parliament would not endure. The administration with all its power derived both from good and evil had to yield; the income tax was abolished, with it went the surplus, and with the surplus all chance of any considerable reduction of the debt for that time. In truth taxation is so painful that in a sensitive community which has strong organs of expression and action, the maintenance of a great surplus is excessively difficult. The Opposition will always say that it is unnecessary, is uncalled for, is injudicious; the cry will be echoed in every constituency; there will be a series of large meetings in the great cities; even in the smaller constituencies there will mostly be smaller meetings; every member of Parliament will be pressed upon by those who elect him; upon this point there will be no distinction between town and country, the country gentleman and the farmer disliking high taxes as much as any in the towns. To maintain a great surplus by heavy taxes to pay off debt has never yet in this country been possible, and to maintain a surplus of the American magnitude would be plainly impossible. Some part of the difference between England and America arises undoubtedly not from political causes but from economical. America is not a country sensitive to taxes; no great country has perhaps ever been so unsensitive in this respect; certainly she is far less sensitive than England. In reality America is too rich; daily industry there is too common, too skilful, and too productive, for her to care much for fiscal burdens. She is applying all the resources of science and skill and trained labour, which have been in long ages painfully acquired in old countries, to develop with great speed the richest soil and the richest mines of new countries; and the result is untold wealth. Even under a Parliamentary government such a community could and would bear taxation much more easily than Englishmen ever would. But difference of physical character in this respect is of little moment in comparison with difference of political constitution. If America was under a Parliamentary government, she would soon be convinced that in maintaining this great surplus and in paying this high taxation she would be doing herself great harm. She is not performing a great duty, but perpetrating a great injustice. She is injuring posterity by crippling and displacing industry, far more than she is aiding it by reducing the taxes it will have to pay. In the first place, the maintenance of the present high taxation compels the retention of many taxes which are contrary to the maxims of free-trade. Enormous customs duties are necessary, and it would be all but impossible to impose equal excise duties even if the Americans desired it. In consequence, besides what the Americans pay to the Government, they are paying a great deal to some of their own citizens, and so are rearing a set of industries which never ought to have existed, which are bad speculations at present because other industries would have paid better, and which may cause a great loss out of pocket hereafter when the debt is paid off and the fostering tax withdrawn. Then probably industry will return to its natural channel, the artificial trade will be first depressed, then discontinued, and the fixed capital employed in the trade will all be depreciated and much of it be worthless. Secondly, all taxes on trade and manufacture are injurious in various ways to them. You cannot put on a great series of such duties without cramping trade in a hundred ways and without diminishing their productiveness exceedingly. America is now working in heavy fetters, and it would probably be better for her to lighten those fetters even though a generation or two should have to pay rather higher taxes. Those generations would really benefit, because they would be so much richer that the slightly increased cost of government would never be perceived. At any rate, under a Parliamentary government this doctrine would have been incessantly inculcated; a whole party would have made it their business to preach it, would have made incessant small motions in Parliament about it, which is the way to popularise their view. And in the end I do not doubt that they would have prevailed. They would have had to teach a lesson both pleasant and true, and such lessons are soon learned. On the whole, therefore, the result of the comparison is that a Presidential government makes it much easier than the Parliamentary to maintain a great surplus of income over expenditure, but that it does not give the same facility for examining whether it be good or not good to maintain a surplus, and, therefore, that it works blindly, maintaining surpluses when they do extreme harm just as much as when they are very beneficial. In this point the contrast of Presidential with Parliamentary government is mixed; one of the defects of Parliamentary government probably is the difficulty under it of maintaining a surplus revenue to discharge debt, and this defect Presidential government escapes, though at the cost of being likely to maintain that surplus upon inexpedient occasions as well as upon expedient. But in all other respects a Parliamentary government has in finance an unmixed advantage over the Presidential in the incessant discussion. Though in one single case it produces evil as well as good, in most cases it produces good only. And three of these cases are illustrated by recent American experience. First, as Mr. Goldwin Smith--no unfavourable judge of anything American--justly said some years since, the capital error made by the United States Government was the "Legal Tender Act," as it is called, by which it made inconvertible paper notes issued by the Treasury the sole circulating medium of the country. The temptation to do this was very great, because it gave at once a great war fund when it was needed, and with no pain to any one. If the notes of a Government supersede the metallic currency medium of a country to the extent of $80,000,000, this is equivalent to a recent loan of $80,000,000 to the Government for all purposes within the country. Whenever the precious metals are not required, and for domestic purposes in such a case they are not required, notes will buy what the Government want, and it can buy to the extent of its issue. But, like all easy expedients out of a great difficulty, it is accompanied by the greatest evils; if it had not been so, it would have been the regular device in such cases, and the difficulty would have been no difficulty at all; there would have been a known easy way out of it. As is well known, inconvertible paper issued by Government is sure to be issued in great quantities, as the American currency soon was; it is sure to be depreciated as against coin; it is sure to disturb values and to derange markets; it is certain to defraud the lender; it is certain to give the borrower more than he ought to have. In the case of America there was a further evil. Being a new country, she ought in her times of financial want to borrow of old countries; but the old countries were frightened by the probable issue of unlimited inconvertible paper, and they would not lend a shilling. Much more than the mercantile credit of America was thus lost. The great commercial houses in England are the most natural and most effectual conveyers of intelligence from other countries to Europe. If they had been financially interested in giving in a sound report as to the progress of the war, a sound report we should have had. But as the Northern States raised no loans in Lombard Street (and could raise none because of their vicious paper money), Lombard Street did not care about them, and England was very imperfectly informed of the progress of the civil struggle, and on the whole matter, which was then new and very complex, England had to judge without having her usual materials for judgment, and (since the guidance of the "City" on political matter is very quietly and imperceptibly given) without knowing she had not those materials. Of course, this error might have been committed, and perhaps would have been committed under a Parliamentary government. But if it had, its effects would ere long have been thoroughly searched into and effectually frustrated. The whole force of the greatest inquiring machine and the greatest discussing machine which the world has ever known would have been directed to this subject. In a year or two the American public would have had it forced upon them in every form till they must have comprehended it. But under the Presidential form of government, and owing to the inferior power of generating discussion, the information given to the American people has been imperfect in the extreme. And in consequence, after nearly ten years of painful experience, they do not now understand how much they have suffered from their inconvertible currency. But the mode in which the Presidential government of America managed its taxation during the Civil War, is even a more striking example of its defects. Mr. Wells tells us:-- "In the outset all direct or internal taxation was avoided, there having been apparently an apprehension on the part of Congress, that inasmuch as the people had never been accustomed to it, and as all machinery for assessment and collection was wholly wanting, its adoption would create discontent, and thereby interfere with a vigorous prosecution of hostilities. Congress, therefore, confined itself at first to the enactment of measures looking to an increase of revenue from the increase of indirect taxes upon imports; and it was not until four months after the actual outbreak of hostilities that a direct tax of $20,000,000 per annum was apportioned among the States, and an income tax of 3 per cent. on the excess of all incomes over $800 was provided for; the first being made to take effect practically eight, and the second ten months after date of enactment. Such laws of course took effect, and became immediately operative in the loyal States only, and produced but comparatively little revenue; and although the range of taxation was soon extended, the whole receipts from all sources by the Government for the second year of the war, from excise, income, stamp, and all other internal taxes, were less than $42,000,000; and that, too, at a time when the expenditures were in excess $60,000,000 per month, or at the rate of over $700,000,000 per annum. And as showing how novel was this whole subject of direct and internal taxation to the people, and how completely the Government officials were lacking in all experience in respect to it, the following incident may be noted. The Secretary of the Treasury, in his report for 1863, stated that, with a view of determining his resources, he employed a very competent person, with the aid of practical men, to estimate the probable amount of revenue to be derived from each department of internal taxation for the previous year. The estimate arrived at was $85,000,000, but the actual receipts were only $37,000,000." Now, no doubt, this might have happened under a Parliamentary government. But, then, many members of Parliament, the entire Opposition in Parliament, would have been active to unravel the matter. All the principles of finance would have been worked and propounded. The light would have come from above, not from below--it would have come from Parliament to the nation instead of from the nation to Parliament But exactly the reverse happened in America. Mr. Wells goes on to say:-- "The people of the loyal States were, however, more determined and in earnest in respect to this matter of taxation than were their rulers; and before long the popular discontent at the existing state of things was openly manifest. Every where the opinion was expressed that taxation in all possible forms should immediately, and to the largest extent, be made effective and imperative; and Congress spurred up, and right fully relying on public sentiment to sustain their action, at last took up the matter resolutely and in earnest, and devised and inaugurated a system of internal and direct taxation, which for its universality and peculiarities has probably no parallel in anything which has heretofore been recorded in civil history, or is likely to be experienced hereafter. The one necessity of the situation was revenue, and to obtain it speedily and in large amounts through taxation the only principle recognised--if it can be called a principle--was akin to that recommended to the traditionary Irishman on his visit to Donnybrook Fair, 'Wherever you see a head hit it'. Wherever you find an article, a product, a trade, a profession, or a source of income, tax it! And so an edict went forth to this effect, and the people cheerfully submitted. Incomes under $5,000 were taxed 5 per cent., with an exemption of $600 and house rent actually paid; these exemptions being allowed on this ground, that they represented an amount sufficient at the time to enable a small family to procure the bare necessaries of life, and thus take out from the operation of the law all those who were dependent upon each day's earnings to supply each day's needs. Incomes in excess of $5,000 and not in excess of $10,000 were taxed 2 1/2 per cent. in addition; and incomes over $10,000 5 per cent. additional, without any abeyance or exemptions whatever." Now this is all contrary to and worse than what would have happened under a Parliamentary government. The delay to tax would not have occurred under it: the movement by the country to get taxation would never have been necessary under it. The excessive taxation accordingly imposed would not have been permitted under it. The last point I think I need not labour at length. The evils of a bad tax are quite sure to be pressed upon the ears of Parliament in season and out of season; the few persons who have to pay it are thoroughly certain to make themselves heard. The sort of taxation tried in America, that of taxing everything, and seeing what every thing would yield, could not have been tried under a Government delicately and quickly sensitive to public opinion. I do not apologise for dwelling at length upon these points, for the subject is one of transcendent importance. The practical choice of first-rate nations is between the Presidential government and the Parliamentary; no State can be first-rate which has not a government by discussion, and those are the only two existing species of that government. It is between them that a nation which has to choose its government must choose. And nothing therefore can be more important than to compare the two, and to decide upon the testimony of experience, and by facts, which of them is the better. THE POPLARS, WIMBLEDON: June 20, 1872. NO. II. THE CABINET. "On all great subjects," says Mr. Mill, "much remains to be said," and of none is this more true than of the English Constitution. The literature which has accumulated upon it is huge. But an observer who looks at the living reality will wonder at the contrast to the paper description. He will see in the life much which is not in the books; and he will not find in the rough practice many refinements of the literary theory. It was natural--perhaps inevitable--that such an under growth of irrelevant ideas should gather round the British Constitution. Language is the tradition of nations; each generation describes what it sees, but it uses words transmitted from the past. When a great entity like the British Constitution has continued in connected outward sameness, but hidden inner change, for many ages, every generation inherits a series of inapt words--of maxims once true, but of which the truth is ceasing or has ceased. As a man's family go on muttering in his maturity incorrect phrases derived from a just observation of his early youth, so, in the full activity of an historical constitution, its subjects repeat phrases true in the time of their fathers, and inculcated by those fathers, but now true no longer. Or, if I may say so, an ancient and ever-altering constitution is like an old man who still wears with attached fondness clothes in the fashion of his youth: what you see of him is the same; what you do not see is wholly altered. There are two descriptions of the English Constitution which have exercised immense influence, but which are erroneous. First, it is laid down as a principle of the English polity, that in it the legislative, the executive, and the judicial powers are quite divided--that each is entrusted to a separate person or set of persons--that no one of these can at all interfere with the work of the other. There has been much eloquence expended in explaining how the rough genius of the English people, even in the middle ages, when it was especially rude, carried into life and practice that elaborate division of functions which philosophers had suggested on paper, but which they had hardly hoped to see except on paper. Secondly, it is insisted that the peculiar excellence of the British Constitution lies in a balanced union of three powers. It is said that the monarchical element, the aristocratic element, and the democratic element, have each a share in the supreme sovereignty, and that the assent of all three is necessary to the action of that sovereignty. Kings, lords, and commons, by this theory, are alleged to be not only the outward form, but the inner moving essence, the vitality of the Constitution. A great theory, called the theory of "Checks and Balances," pervades an immense part of political literature, and much of it is collected from or supported by English experience. Monarchy, it is said, has some faults, some bad tendencies, aristocracy others, democracy, again, others; but England has shown that a Government can be constructed in which these evil tendencies exactly check, balance, and destroy one another--in which a good whole is constructed not simply in spite of, but by means of, the counteracting defects of the constituent parts. Accordingly, it is believed that the principal characteristics of the English Constitution are inapplicable in countries where the materials for a monarchy or an aristocracy do not exist. That Constitution is conceived to be the best imaginable use of the political elements which the great majority of States in modern Europe inherited from the mediaeval period. It is believed that out of these materials nothing better can be made than the English Constitution; but it is also believed that the essential parts of the English Constitution cannot be made except from these materials. Now these elements are the accidents of a period and a region; they belong only to one or two centuries in human history, and to a few countries. The United States could not have become monarchical, even if the Constitutional Convention had decreed it, even if the component States had ratified it. The mystic reverence, the religious allegiance, which are essential to a true monarchy, are imaginative sentiments that no legislature can manufacture in any people. These semi-filial feelings in Government are inherited just as the true filial feelings in common life. You might as well adopt a father as make a monarchy: the special sentiment belonging to the one is as incapable of voluntary creation as the peculiar affection belonging to the other. If the practical part of the English Constitution could only be made out of a curious accumulation of mediaeval materials, its interest would be half historical, and its imitability very confined. No one can approach to an understanding of the English institutions, or of others, which, being the growth of many centuries, exercise a wide sway over mixed populations, unless he divide them into two classes. In such constitutions there are two parts (not indeed separable with microscopic accuracy, for the genius of great affairs abhors nicety of division): first, those which excite and preserve the reverence of the population--the DIGNIFIED parts, if I may so call them; and next, the EFFICIENT parts--those by which it, in fact, works and rules. There are two great objects which every constitution must attain to be successful, which every old and celebrated one must have wonderfully achieved: every constitution must first GAIN authority, and then USE authority; it must first win the loyalty and confidence of mankind, and then employ that homage in the work of government. There are indeed practical men who reject the dignified parts of Government. They say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless. And other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old Governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed. But both schools are in error. The dignified parts of Government are those which bring it force--which attract its motive power. The efficient parts only employ that power. The comely parts of a Government HAVE need, for they are those upon which its vital strength depends. They may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of ALL work. They raise the army, though they do not win the battle. Doubtless, if all subjects of the same Government only thought of what was useful to them, and if they all thought the same thing useful, and all thought that same thing could be attained in the same way, the efficient members of a constitution would suffice, and no impressive adjuncts would be needed. But the world in which we live is organised far otherwise. The most strange fact, though the most certain in nature, is the unequal development of the human race. If we look back to the early ages of mankind, such as we seem in the faint distance to see them--if we call up the image of those dismal tribes in lake villages, or on wretched beaches--scarcely equal to the commonest material needs, cutting down trees slowly and painfully with stone tools, hardly resisting the attacks of huge, fierce animals--without culture, without leisure, without poetry, almost without thought--destitute of morality, with only a sort of magic for religion; and if we compare that imagined life with the actual life of Europe now, we are overwhelmed at the wide contrast--we can scarcely conceive ourselves to be of the same race as those in the far distance. There used to be a notion--not so much widely asserted as deeply implanted, rather pervadingly latent than commonly apparent in political philosophy--that in a little while, perhaps ten years or so, all human beings might, without extraordinary appliances, be brought to the same level. But now, when we see by the painful history of mankind at what point we began, by what slow toil, what favourable circumstances, what accumulated achievements, civilised man has become at all worthy in any degree so to call himself--when we realise the tedium of history and the painfulness of results--our perceptions are sharpened as to the relative steps of our long and gradual progress. We have in a great community like England crowds of people scarcely more civilised than the majority of two thousand years ago; we have others, even more numerous, such as the best people were a thousand years since. The lower orders, the middle orders, are still, when tried by what is the standard of the educated "ten thousand," narrow-minded, unintelligent, incurious. It is useless to pile up abstract words. Those who doubt should go out into their kitchens. Let an accomplished man try what seems to him most obvious, most certain, most palpable in intellectual matters, upon the housemaid and the footman, and he will find that what he says seems unintelligible, confused, and erroneous--that his audience think him mad and wild when he is speaking what is in his own sphere of thought the dullest platitude of cautious soberness. Great communities are like great mountains--they have in them the primary, secondary, and tertiary strata of human progress; the characteristics of the lower regions resemble the life of old times rather than the present life of the higher regions. And a philosophy which does not ceaselessly remember, which does not continually obtrude, the palpable differences of the various parts, will be a theory radically false, because it has omitted a capital reality--will be a theory essentially misleading, because it will lead men to expect what does not exist, and not to anticipate that which they will find. Every one knows these plain facts, but by no means every one has traced their political importance. When a State is constituted thus, it is not true that the lower classes will be wholly absorbed in the useful; on the contrary, they do not like anything so poor. No orator ever made an impression by appealing to men as to their plainest physical wants, except when he could allege that those wants were caused by some one's tyranny. But thousands have made the greatest impression by appealing to some vague dream of glory, or empire, or nationality. The ruder sort of men--that is, men at ONE stage of rudeness--will sacrifice all they hope for, all they have, THEMSELVES, for what is called an idea--for some attraction which seems to transcend reality, which aspires to elevate men by an interest higher, deeper, wider than that of ordinary life. But this order of men are uninterested in the plain, palpable ends of government; they do not prize them; they do not in the least comprehend how they should be attained. It is very natural, therefore, that the most useful parts of the structure of government should by no means be those which excite the most reverence. The elements which excite the most easy reverence will be the THEATRICAL elements--those which appeal to the senses, which claim to be embodiments of the greatest human ideas, which boast in some cases of far more than human origin. That which is mystic in its claims; that which is occult in its mode of action; that which is brilliant to the eye; that which is seen vividly for a moment, and then is seen no more; that which is hidden and unhidden; that which is specious, and yet interesting, palpable in its seeming, and yet professing to be more than palpable in its results; this, howsoever its form may change, or however we may define it or describe it, is the sort of thing--the only sort--which yet comes home to the mass of men. So far from the dignified parts of a constitution being necessarily the most useful, they are likely, according to outside presumption, to be the least so; for they are likely to be adjusted to the lowest orders--those likely to care least and judge worst about what IS useful. There is another reason which, in an old constitution like that of England, is hardly less important. The most intellectual of men are moved quite as much by the circumstances which they are used to as by their own will. The active voluntary part of a man is very small, and if it were not economised by a sleepy kind of habit, its results would be null. We could not do every day out of our own heads all we have to do. We should accomplish nothing, for all our energies would be frittered away in minor attempts at petty improvement. One man, too, would go off from the known track in one direction, and one in another; so that when a crisis came requiring massed combination, no two men would be near enough to act together. It is the dull traditional habit of mankind that guides most men's actions, and is the steady frame in which each new artist must set the picture that he paints. And all this traditional part of human nature is, ex vi termini, most easily impressed and acted on by that which is handed down. Other things being equal, yesterday's institutions are by far the best for to-day; they are the most ready, the most influential, the most easy to get obeyed, the most likely to retain the reverence which they alone inherit, and which every other must win. The most imposing institutions of mankind are the oldest; and yet so changing is the world, so fluctuating are its needs, so apt to lose inward force, though retaining out ward strength, are its best instruments, that we must not expect the oldest institutions to be now the most efficient. We must expect what is venerable to acquire influence because of its inherent dignity; but we must not expect it to use that influence so well as new creations apt for the modern world, instinct with its spirit, and fitting closely to its life. The brief description of the characteristic merit of the English Constitution is, that its dignified parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part, at least when in great and critical action, is decidedly simple and rather modern. We have made, or rather stumbled on, a constitution which--though full of every species of incidental defect, though of the worst workmanship in all out-of-the-way matters of any constitution in the world--yet has two capital merits: it contains a simple efficient part which, on occasion, and when wanted, can work more simply and easily, and better, than any instrument of government that has yet been tried; and it contains likewise historical, complex, august, theatrical parts, which it has inherited from a long past--which take the multitude--which guide by an insensible but an omnipotent influence the associations of its subjects. Its essence is strong with the strength of modern simplicity; its exterior is august with the Gothic grandeur of a more imposing age. Its simple essence may, mutatis mutandis, be transplanted to many very various countries, but its august outside--what most men think it is--is narrowly confined to nations with an analogous history and similar political materials. The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers. No doubt by the traditional theory, as it exists in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. The connecting link is the Cabinet. By that new word we mean a committee of the legislative body selected to be the executive body. The legislature has many committees, but this is its greatest. It chooses for this, its main committee, the men in whom it has most confidence. It does not, it is true, choose them directly; but it is nearly omnipotent in choosing them indirectly. A century ago the Crown had a real choice of Ministers, though it had no longer a choice in policy. During the long reign of Sir R. Walpole he was obliged not only to manage Parliament but to manage the palace. He was obliged to take care that some court intrigue did not expel him from his place. The nation then selected the English policy, but the Crown chose the English Ministers. They were not only in name, as now, but in fact, the Queen's servants. Remnants, important remnants, of this great prerogative still remain. The discriminating favour of William IV. made Lord Melbourne head of the Whig party when he was only one of several rivals. At the death of Lord Palmerston it is very likely that the Queen may have the opportunity of fairly choosing between two, if not three statesmen. But, as a rule, the nominal Prime Minister is chosen by the legislature, and the real Prime Minister for most purposes--the leader of the House of Commons--almost without exception is so. There is nearly always some one man plainly selected by the voice of the predominant party in the predominant house of the legislature to head that party, and consequently to rule the nation. We have in England an elective first magistrate as truly as the Americans have an elective first magistrate. The Queen is only at the head of the dignified part of the Constitution. The Prime Minister is at the head of the efficient part. The Crown is, according to the saying, the "fountain of honour"; but the Treasury is the spring of business. Nevertheless, our first magistrate differs from the American. He is not elected directly by the people; he is elected by the representatives of the people. He is an example of "double election". The legislature chosen, in name, to make laws, in fact finds its principal business in making and in keeping an executive. The leading Minister so selected has to choose his associates, but he only chooses among a charmed circle. The position of most men in Parliament forbids their being invited to the Cabinet; the position of a few men ensures their being invited. Between the compulsory list whom he must take, and the impossible list whom he cannot take, a Prime Minister's independent choice in the formation of a Cabinet is not very large; it extends rather to the division of the Cabinet offices than to the choice of Cabinet Ministers. Parliament and the nation have pretty well settled who shall have the first places; but they have not discriminated with the same accuracy which man shall have which place. The highest patronage of a Prime Minister is, of course, a considerable power, though it is exercised under close and imperative restrictions--though it is far less than it seems to be when stated in theory, or looked at from a distance. The Cabinet, in a word, is a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation. The particular mode in which the English Ministers are selected; the fiction that they are, in any political sense, the Queen's servants; the rule which limits the choice of the Cabinet to the members of the legislature--are accidents unessential to its definition--historical incidents separable from its nature. Its characteristic is that it should be chosen by the legislature out of persons agreeable to and trusted by the legislature. Naturally these are principally its own members--but they need not be exclusively so. A Cabinet which included persons not members of the legislative assembly might still perform all useful duties. Indeed the peers, who constitute a large element in modern Cabinets, are members, now-a-days, only of a subordinate assembly. The House of Lords still exercises several useful functions; but the ruling influence--the deciding faculty--has passed to what, using the language of old times, we still call the lower house--to an assembly which, though inferior as a dignified institution, is superior as an efficient institution. A principal advantage of the House of Lords in the present age indeed consists in its thus acting as a reservoir of Cabinet Ministers. Unless the composition of the House of Commons were improved, or unless the rules requiring Cabinet Ministers to be members of the legislature were relaxed, it would undoubtedly be difficult to find, without the lords, a sufficient supply of chief Ministers. But the detail of the composition of a Cabinet, and the precise method of its choice, are not to the purpose now. The first and cardinal consideration is the definition of a Cabinet. We must not bewilder ourselves with the inseparable accidents until we know the necessary essence. A Cabinet is a combining committee--a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part of the State. In its origin it belongs to the one, in its functions it belongs to the other. The most curious point about the Cabinet is that so very little is known about it. The meetings are not only secret in theory, but secret in reality. By the present practice, no official minute in all ordinary cases is kept of them. Even a private note is discouraged and disliked. The House of Commons, even in its most inquisitive and turbulent moments, would scarcely permit a note of a Cabinet meeting to be read. No Minister who respected the fundamental usages of political practice would attempt to read such a note. The committee which unites the law-making power to the law-executing power--which, by virtue of that combination, is, while it lasts and holds together, the most powerful body in the State--is a committee wholly secret. No description of it, at once graphic and authentic, has ever been given. It is said to be sometimes like a rather disorderly board of directors, where many speak and few listen--though no one knows.[1] But a Cabinet, though it is a committee of the legislative assembly, is a committee with a power which no assembly would--unless for historical accidents, and after happy experience--have been persuaded to entrust to any committee. It is a committee which can dissolve the assembly which appointed it; it is a committee with a suspensive veto--a committee with a power of appeal. Though appointed by one Parliament, it can appeal if it chooses to the next. Theoretically, indeed, the power to dissolve Parliament is entrusted to the sovereign only; and there are vestiges of doubt whether in ALL cases a sovereign is bound to dissolve Parliament when the Cabinet asks him to do so. But neglecting such small and dubious exceptions, the Cabinet which was chosen by one House of Commons has an appeal to the next House of Commons. The chief committee of the legislature has the power of dissolving the predominant part of that legislature--that which at a crisis is the supreme legislature. The English system, therefore, is not an absorption of the executive power by the legislative power; it is a fusion of the two. Either the Cabinet legislates and acts, or else it can dissolve. It is a creature, but it has the power of destroying its creators. It is an executive which can annihilate the legislature, as well as an executive which is the nominee of the legislature. It was made, but it can unmake; it was derivative in its origin, but it is destructive in its action. This fusion of the legislative and executive functions may, to those who have not much considered it, seem but a dry and small matter to be the latent essence and effectual secret of the English Constitution; but we can only judge of its real importance by looking at a few of its principal effects, and contrasting it very shortly with its great competitor, which seems likely, unless care be taken, to outstrip it in the progress of the world. That competitor is the Presidential system. The characteristic of it is that the President is elected from the people by one process, and the House of Representatives by another. The independence of the legislative and executive powers is the specific quality of Presidential government, just as their fusion and combination is the precise principle of Cabinet government. [1] It is said that at the end of the Cabinet which agreed to propose a fixed duty on corn, Lord Melbourne put his back to the door and said, "Now is it to lower the price of corn or isn't it? It is not much matter which we say, but mind, we must all say THE SAME." This is the most graphic story of a Cabinet I ever heard, but I cannot vouch for its truth. Lord Melbourne's is a character about which men make stories. First, compare the two in quiet times. The essence of a civilised age is, that administration requires the continued aid of legislation. One principal and necessary kind of legislation is taxation. The expense of civilised government is continually varying. It must vary if the Government does its duty. The miscellaneous estimates of the English Government contain an inevitable medley of changing items. Education, prison discipline, art, science, civil contingencies of a hundred kinds, require more money one year and less another. The expense of defence--the naval and military estimates--vary still more as the danger of attack seems more or less imminent, as the means of retarding such danger become more or less costly. If the persons who have to do the work are not the same as those who have to make the laws, there will be a controversy between the two sets of persons. The tax-imposers are sure to quarrel with the tax-requirers. The executive is crippled by not getting the laws it needs, and the legislature is spoiled by having to act without responsibility: the executive becomes unfit for its name, since it cannot execute what it decides on; the legislature is demoralised by liberty, by taking decisions of which others (and not itself) will suffer the effects. In America so much has this difficulty been felt that a semi-connection has grown up between the legislature and the executive. When the Secretary of the Treasury of the Federal Government wants a tax he consults upon it with the chairman of the Financial Committee of Congress. He cannot go down to Congress himself and propose what he wants; he can only write a letter and send it. But he tries to get a chairman of the Finance Committee who likes his tax;--through that chairman he tries to persuade the committee to recommend such tax; by that committee he tries to induce the house to adopt that tax. But such a chain of communications is liable to continual interruptions; it may suffice for a single tax on a fortunate occasion, but will scarcely pass a complicated budget--we do not say in a war or a rebellion--we are now comparing the Cabinet system and the Presidential system in quiet times--but in times of financial difficulty. Two clever men never exactly agreed about a budget. We have by present practice an Indian Chancellor of the Exchequer talking English finance at Calcutta, and an English one talking Indian finance in England. But the figures are never the same, and the views of policy are rarely the same. One most angry controversy has amused the world, and probably others scarcely less interesting are hidden in the copious stores of our Anglo-Indian correspondence. But relations something like these must subsist between the head of a finance committee in the legislature, and a finance Minister in the executive.[2] They are sure to quarrel, and the result is sure to satisfy neither. And when the taxes do not yield as they were expected to yield, who is responsible? Very likely the Secretary of the Treasury could not persuade the chairman--very likely the chairman could not persuade his committee--very likely the committee could not persuade the assembly. Whom, then, can you punish--whom can you abolish--when your taxes run short? There is nobody save the legislature, a vast miscellaneous body difficult to punish, and the very persons to inflict the punishment. Nor is the financial part of administration the only one which requires in a civilised age the constant support and accompaniment of facilitating legislation. All administration does so. In England, on a vital occasion, the Cabinet can compel legislation by the threat of resignation, and the threat of dissolution; but neither of these can be used in a Presidential State. There the legislature cannot be dissolved by the executive Government; and it does not heed a resignation, for it has not to find the successor. Accordingly, when a difference of opinion arises, the legislature is forced to fight the executive, and the executive is forced to fight the legislative; and so very likely they contend to the conclusion of their respective terms.[3] There is, indeed, one condition of things in which this description, though still approximately true, is, nevertheless, not exactly true; and that is, when there is nothing to fight about. Before the rebellion in America, owing to the vast distance of other States, and the favourable economic condition of the country, there were very few considerable objects of contention; but if that government had been tried by English legislation of the last thirty years, the discordant action of the two powers, whose constant cooperation is essential to the best government, would have shown itself much more distinctly. Nor is this the worst. Cabinet government educates the nation; the Presidential does not educate it, and may corrupt it. It has been said that England invented the phrase, "Her Majesty's Opposition"; that it was the first Government which made a criticism of administration as much a part of the polity as administration itself. This critical opposition is the consequence of Cabinet government. The great scene of debate, the great engine of popular instruction and political controversy, is the legislative assembly. A speech there by an eminent statesman, a party movement by a great political combination, are the best means yet known for arousing, enlivening, and teaching a people. The Cabinet system ensures such debates, for it makes them the means by which statesmen advertise themselves for future and confirm themselves in present Governments. It brings forward men eager to speak, and gives them occasions to speak. The deciding catastrophes of Cabinet governments are critical divisions preceded by fine discussions. Everything which is worth saying, everything which ought to be said, most certainly WILL be said. Conscientious men think they ought to persuade others; selfish men think they would like to obtrude themselves. The nation is forced to hear two sides--all the sides, perhaps, of that which most concerns it. And it likes to hear--it is eager to know. Human nature despises long arguments which come to nothing--heavy speeches which precede no motion--abstract disquisitions which leave visible things where they were. But all men heed great results, and a change of Government is a great result. It has a hundred ramifications; it runs through society; it gives hope to many, and it takes away hope from many. It is one of those marked events which, by its magnitude and its melodrama, impress men even too much. And debates which have this catastrophe at the end of them--or may so have it--are sure to be listened to, and sure to sink deep into the national mind. Travellers even in the Northern States of America, the greatest and best of Presidential countries, have noticed that the nation was "not specially addicted to politics"; that they have not a public opinion finished and chastened as that of the English has been finished and chastened. A great many hasty writers have charged this defect on the "Yankee race," on the Anglo-American character; but English people, if they had no motive to attend to politics, certainly would not attend to politics. At present there is BUSINESS in their attention. They assist at the determining crisis; they arrest or help it. Whether the Government will go out or remain is determined by the debate, and by the division in Parliament. And the opinion out of doors, the secret pervading disposition of society, has a great influence on that division. The nation feels that its judgment is important, and it strives to judge. It succeeds in deciding because the debates and the discussions give it the facts and the arguments. But under a Presidential government, a nation has, except at the electing moment, no influence; it has not the ballot-box before it; its virtue is gone, and it must wait till its instant of despotism again returns. It is not incited to form an opinion like a nation under a Cabinet government; nor is it instructed like such a nation. There are doubtless debates in the legislature, but they are prologues without a play. There is nothing of a catastrophe about them; you can not turn out the Government. The prize of power is not in the gift of the legislature, and no one cares for the legislature. The executive, the great centre of power and place, sticks irremovable; you cannot change it in any event. The teaching apparatus which has educated our public mind, which prepares our resolutions, which shapes our opinions, does not exist. No Presidential country needs to form daily delicate opinions, or is helped in forming them. It might be thought that the discussions in the press would supply the deficiencies in the Constitution; that by a reading people especially, the conduct of their Government would be as carefully watched, that their opinions about it would be as consistent, as accurate, as well considered, under a Presidential as under a Cabinet polity. But the same difficulty oppresses the press which oppresses the legislature. It can DO NOTHING. It cannot change the administration; the executive was elected for such and such years, and for such and such years it must last. People wonder that so literary a people as the Americans--a people who read more than any people who ever lived, who read so many newspapers--should have such bad newspapers. The papers are not so good as the English, because they have not the same motive to be good as the English papers. At a political "crisis," as we say--that is, when the fate of an administration is unfixed, when it depends on a few votes yet unsettled, upon a wavering and veering opinion--effective articles in great journals become of essential moment. The Times has made many ministries. When, as of late, there has been a long continuance of divided Parliaments, of Governments which were without "brute voting power," and which depended on intellectual strength, the support of the most influential organ of English opinion has been of critical moment. If a Washington newspaper could have turned out Mr. Lincoln, there would have been good writing and fine argument in the Washington newspapers. But the Washington newspapers can no more remove a President during his term of place than the Times can remove a lord mayor during his year of office. Nobody cares for a debate in Congress which "comes to nothing," and no one reads long articles which have no influence on events. The Americans glance at the heads of news, and through the paper. They do not enter upon a discussion. They do not think of entering upon a discussion which would be useless. [2] It is worth observing that even during the short existence of the Confederate Government these evils distinctly showed themselves. Almost the last incident at the Richmond Congress was an angry financial correspondence with Jefferson Davis. [3] I leave this passage to stand as it was written, just after the assassination of Mr. Lincoln, and when every one said Mr. Johnson would be very hostile to the South. After saying that the division of the legislature and the executive in Presidential governments weakens the legislative power, it may seem a contradiction to say that it also weakens the executive power. But it is not a contradiction. The division weakens the whole aggregate force of Government--the entire imperial power; and therefore it weakens both its halves. The executive is weakened in a very plain way. In England a strong Cabinet can obtain the concurrence of the legislature in all acts which facilitate its administration; it is itself, so to say, the legislature. But a President may be hampered by the Parliament, and is likely to be hampered. The natural tendency of the members of every legislature is to make themselves conspicuous. They wish to gratify an ambition laudable or blamable; they wish to promote the measures they think best for the public welfare; they wish to make their WILL felt in great affairs. All these mixed motives urge them to oppose the executive. They are embodying the purposes of others if they aid; they are advancing their own opinions if they defeat: they are first if they vanquish; they are auxiliaries if they support. The weakness of the American executive used to be the great theme of all critics before the Confederate rebellion. Congress and committees of Congress of course impeded the executive when there was no coercive public sentiment to check and rule them. But the Presidential system not only gives the executive power an antagonist in the legislative power, and so makes it weaker; it also enfeebles it by impairing its intrinsic quality. A Cabinet is elected by a legislature; and when that legislature is composed of fit persons, that mode of electing the executive is the very best. It is a case of secondary election, under the only conditions in which secondary election is preferable to primary. Generally speaking, in an electioneering country (I mean in a country full of political life, and used to the manipulation of popular institutions), the election of candidates to elect candidates is a farce. The Electoral College of America is so. It was intended that the deputies when assembled should exercise a real discretion, and by independent choice select the President. But the primary electors take too much interest. They only elect a deputy to vote for Mr. Lincoln or Mr. Breckenridge, and the deputy only takes a ticket, and drops that ticket in an urn. He never chooses or thinks of choosing. He is but a messenger--a transmitter; the real decision is in those who choose him--who chose him because they knew what he would do. It is true that the British House of Commons is subject to the same influences. Members are mostly, perhaps, elected because they will vote for a particular Ministry, rather than for purely legislative reasons. But--and here is the capital distinction--the functions of the House of Commons are important and CONTINUOUS. It does not, like the Electoral College in the United States, separate when it has elected its ruler; it watches, legislates, seats and unseats ministries, from day to day. Accordingly it is a REAL electoral body. The Parliament of 1857, which, more than any other Parliament of late years, was a Parliament elected to support a particular premier--which was chosen, as Americans might say, upon the "Palmerston ticket"--before it had been in existence two years, dethroned Lord Palmerston. Though selected in the interest of a particular Ministry, it in fact destroyed that Ministry. A good Parliament, too, is a capital choosing body. If it is fit to make laws for a country, its majority ought to represent the general average intelligence of that country; its various members ought to represent the various special interests, special opinions, special prejudices, to be found in that community. There ought to be an advocate for every particular sect, and a vast neutral body of no sect--homogeneous and judicial, like the nation itself. Such a body, when possible, is the best selector of executives that can be imagined. It is full of political activity; it is close to political life; it feels the responsibility of affairs which are brought as it were to its threshold; it has as much intelligence as the society in question chances to contain. It is, what Washington and Hamilton strove to create, an electoral college of the picked men of the nation. The best mode of appreciating its advantages is to look at the alternative. The competing constituency is the nation itself, and this is, according to theory and experience, in all but the rarest cases, a bad constituency. Mr. Lincoln, at his second election, being elected when all the Federal States had set their united hearts on one single object, was voluntarily reelected by an actually choosing nation. He embodied the object in which every one was absorbed. But this is almost the only Presidential election of which so much can be said. In almost all cases the President is chosen by a machinery of caucuses and combinations too complicated to be perfectly known, and too familiar to require description. He is not the choice of the nation, he is the choice of the wire-pullers. A very large constituency in quiet times is the necessary, almost the legitimate, subject of electioneering management: a man cannot know that he does not throw his vote away except he votes as part of some great organisation; and if he votes as a part, he abdicates his electoral function in favour of the managers of that association. The nation, even if it chose for itself, would, in some degree, be an unskilled body; but when it does not choose for itself, but only as latent agitators wish, it is like a large, lazy man, with a small vicious mind,--it moves slowly and heavily, but it moves at the bidding of a bad intention; it "means LITTLE, but it means that little ILL." And, as the nation is less able to choose than a Parliament, so it has worse people to choose out of. The American legislators of the last century have been much blamed for not permitting the Ministers of the President to be members of the assembly; but, with reference to the specific end which they had in view, they saw clearly and decided wisely. They wished to keep "the legislative branch absolutely distinct from the executive branch"; they believed such a separation to be essential to a good constitution; they believed such a separation to exist in the English, which the wisest of them thought the best Constitution. And, to the effectual maintenance of such a separation, the exclusion of the President's Ministers from the legislature is essential. If they are not excluded they become the executive, they eclipse the President himself. A legislative chamber is greedy and covetous; it acquires as much, it concedes as little as possible. The passions of its members are its rulers; the law-making faculty, the most comprehensive of the imperial faculties, is its instrument; it will take the administration if it can take it. Tried by their own aims, the founders of the United States were wise in excluding the Ministers from Congress. But though this exclusion is essential to the Presidential system of government, it is not for that reason a small evil. It causes the degradation of public life. Unless a member of the legislature be sure of something more than speech, unless he is incited by the hope of action, and chastened by the chance of responsibility, a first-rate man will not care to take the place, and will not do much if he does take it. To belong to a debating society adhering to an executive (and this is no inapt description of a congress under a Presidential Constitution) is not an object to stir a noble ambition, and is a position to encourage idleness. The members of a Parliament excluded from office can never be comparable, much less equal, to those of a Parliament not excluded from office. The Presidential Government, by its nature, divides political life into two halves, an executive half and a legislative half; and, by so dividing it, makes neither half worth a man's having--worth his making it a continuous career--worthy to absorb, as Cabinet government absorbs, his whole soul. The statesmen from whom a nation chooses under a Presidential system are much inferior to those from whom it chooses under a Cabinet system, while the selecting apparatus is also far less discerning. All these differences are more important at critical periods, because government itself is more important. A formed public opinion, a respectable, able, and disciplined legislature, a well-chosen executive, a Parliament and an administration not thwarting each other, but co-operating with each other, are of greater consequence when great affairs are in progress than when small affairs are in progress-when there is much to do than when there is little to do. But in addition to this, a Parliamentary or Cabinet Constitution possesses an additional and special advantage in very dangerous times. It has what we may call a reserve of power fit for and needed by extreme exigencies. The principle of popular government is that the supreme power, the determining efficacy in matters political, resides in the people--not necessarily or commonly in the whole people, in the numerical majority, but in a CHOSEN people, a picked and selected people. It is so in England; it is so in all free countries. Under a Cabinet Constitution at a sudden emergency this people can choose a ruler for the occasion. It is quite possible and even likely that he would not be ruler before the occasion. The great qualities, the imperious will, the rapid energy, the eager nature fit for a great crisis are not required--are impediments--in common times; A Lord Liverpool is better in everyday politics than a Chatham--a Louis Philippe far better than a Napoleon. By the structure of the world we often want, at the sudden occurrence of a grave tempest, to change the helmsman--to replace the pilot of the calm by the pilot of the storm. In England we have had so few catastrophes since our Constitution attained maturity, that we hardly appreciate this latent excellence. We have not needed a Cavour to rule a revolution--a representative man above all men fit for a great occasion, and by a natural legal mode brought in to rule. But even in England, at what was the nearest to a great sudden crisis which we have had of late years--at the Crimean difficulty--we used this inherent power. We abolished the Aberdeen Cabinet, the ablest we have had, perhaps, since the Reform Act--a Cabinet not only adapted, but eminently adapted, for every sort of difficulty save the one it had to meet--which abounded in pacific discretion, and was wanting only in the "daemonic element"; we chose a statesman, who had the sort of merit then wanted, who, when he feels the steady power of England behind him, will advance without reluctance, and will strike without restraint. As was said at the time, "We turned out the Quaker, and put in the pugilist". But under a Presidential government you can do nothing of the kind. The American Government calls itself a Government of the supreme people; but at a quick crisis, the time when a sovereign power is most needed, you cannot FIND the supreme people. You have got a Congress elected for one fixed period, going out perhaps by fixed instalments, which cannot be accelerated or retarded--you have a President chosen for a fixed period, and immovable during that period: all the arrangements are for STATED times. There is no ELASTIC element, everything is rigid, specified, dated. Come what may, you can quicken nothing, and can retard nothing. You have bespoken your Government in advance, and whether it suits you or not, whether it works well or works ill, whether it is what you want or not, by law you must keep it. In a country of complex foreign relations it would mostly happen that the first and most critical year of every war would be managed by a peace Premier, and the first and most critical years of peace by a war Premier. In each case the period of transition would be irrevocably governed by a man selected not for what he was to introduce, but what he was to change--for the policy he was to abandon, not for the policy he was to administer. The whole history of the American Civil War--a history which has thrown an intense light on the working of a Presidential government at the time when government is most important--is but a vast continuous commentary on these reflections. It would, indeed, be absurd to press against Presidential government AS SUCH the singular defect by which Vice-President Johnson has become President--by which a man elected to a sinecure is fixed in what is for the moment the most important administrative part in the political world. This defect, though most characteristic of the expectations[4] of the framers of the Constitution and of its working, is but an accident of this particular case of Presidential government, and no necessary ingredient in that government itself. But the first election of Mr. Lincoln is liable to no such objection. It was a characteristic instance of the natural working of such a government upon a great occasion. And what was that working? It may be summed up--it was government by an UNKNOWN QUANTITY. Hardly any one in America had any living idea what Mr. Lincoln was like, or any definite notion what he would do. The leading statesmen under the system of Cabinet government are not only household words, but household IDEAS. A conception, not, perhaps, in all respects a true but a most vivid conception of what Mr. Gladstone is like, or what Lord Palmerston is like, runs through society. We have simply no notion what it would be to be left with the visible sovereignty in the hands of an unknown man. The notion of employing a man of unknown smallness at a crisis of unknown greatness is to our minds simply ludicrous. Mr. Lincoln, it is true, happened to be a man, if not of eminent ability, yet of eminent justness. There was an inner depth of Puritan nature which came out under suffering, and was very attractive. But success in a lottery is no argument for lotteries. What were the chances against a person of Lincoln's antecedents, elected as he was, proving to be what he was? Such an incident is, however, natural to a Presidential government. The President is elected by processes which forbid the election of known men, except at peculiar conjunctures, and in moments when public opinion is excited and despotic; and consequently if a crisis comes upon us soon after he is elected, inevitably we have government by an unknown quantity--the superintendence of that crisis by what our great satirist would have called "Statesman X". Even in quiet times, government by a President, is, for the several various reasons which have been stated, inferior to government by a Cabinet; but the difficulty of quiet times is nothing as compared with the difficulty of unquiet times. The comparative deficiencies of the regular, common operation of a Presidential government are far less than the comparative deficiencies in time of sudden trouble--the want of elasticity, the impossibility of a dictatorship, the total absence of a REVOLUTIONARY RESERVE. This contrast explains why the characteristic quality of Cabinet Governments--the fusion of the executive power with the legislative power--is of such cardinal importance. I shall proceed to show under what form and with what adjuncts it exists in England. [4] The framers of the Constitution expected that the vice-president would be elected by the Electoral College as the second wisest man in the country. The vice-presidentship being a sinecure, a second-rate man agreeable to the wire-pullers is always smuggled in. The chance of succession to the presidentship is too distant to be thought of. NO. III. THE MONARCHY. I. The use of the Queen, in a dignified capacity, is incalculable. Without her in England, the present English Government would fail and pass away. Most people when they read that the Queen walked on the slopes at Windsor--that the Prince of Wales went to the Derby--have imagined that too much thought and prominence were given to little things. But they have been in error; and it is nice to trace how the actions of a retired widow and an unemployed youth become of such importance. The best reason why Monarchy is a strong government is, that it is an intelligible government. The mass of mankind understand it, and they hardly anywhere in the world understand any other. It is often said that men are ruled by their imaginations; but it would be truer to say they are governed by the weakness of their imaginations. The nature of a constitution, the action of an assembly, the play of parties, the unseen formation of a guiding opinion, are complex facts, difficult to know and easy to mistake. But the action of a single will, the fiat of a single mind, are easy ideas: anybody can make them out, and no one can ever forget them. When you put before the mass of mankind the question, "Will you be governed by a king, or will you be governed by a constitution?" the inquiry comes out thus--"Will you be governed in a way you understand, or will you be governed in a way you do not understand?" The issue was put to the French people; they were asked, "Will you be governed by Louis Napoleon, or will you be governed by an assembly?" The French people said, "We will be governed by the one man we can imagine, and not by the many people we cannot imagine". The best mode of comprehending the nature of the two Governments, is to look at a country in which the two have within a comparatively short space of years succeeded each other. "The political condition," says Mr. Grote, "which Grecian legend everywhere presents to us, is in its principal features strikingly different from that which had become universally prevalent among the Greeks in the time of the Peloponnesian War. Historical oligarchy, as well as democracy, agreed in requiring a certain established system of government, comprising the three elements of specialised functions, temporary functionaries, and ultimate responsibility (under some forms or other) to the mass of qualified citizens--either a Senate or an Ecclesia, or both. There were, of course, many and capital distinctions between one Government and another, in respect to the qualification of the citizen, the attributes and efficiency of the general assembly, the admissibility to power, etc.; and men might often be dissatisfied with the way in which these questions were determined in their own city. But in the mind of every man, some determining rule or system--something like what in modern times is called a CONSTITUTION--was indispensable to any Government entitled to be called legitimate, or capable of creating in the mind of a Greek a feeling of moral obligation to obey it. The functionaries who exercise authority under it might be more or less competent or popular; but his personal feelings towards them were commonly lost in his attachment or aversion to the general system. If any energetic man could by audacity or craft break down the Constitution, and render himself permanent ruler according to his own will and pleasure, even though he might govern well, he could never inspire the people with any sentiment of duty towards him: his sceptre was illegitimate from the beginning, and even the taking of his life, far from being interdicted by that moral feeling which condemned the shedding of blood in other cases, was considered meritorious: he could not even be mentioned in the language except by a name (_tyrannos_, despot) which branded him as an object of mingled fear and dislike. "If we carry our eyes back from historical to legendary Greece, we find a picture the reverse of what has been here sketched. We discern a government in which there is little or no scheme or system, still less any idea of responsibility to the governed, but in which the mainspring of obedience on the part of the people consists in their personal feeling and reverence towards the chief. We remark, first and foremost, the King; next, a limited number of subordinate kings or chiefs; afterwards, the mass of armed freemen, husbandmen, artisans, freebooters, &c.; lowest of all, the free labourers for hire and the bought slaves. The King is not distinguished by any broad, or impassable boundary from the other chiefs, to each of whom the title Basileus is applicable as well as to himself: his supremacy has been inherited from his ancestors, and passes by inheritance, as a general rule, to his eldest son, having been conferred upon the family as a privilege by the favour of Zeus. In war, he is the leader, foremost in personal prowess, and directing all military movements; in peace, he is the general protector of the injured and oppressed; he offers up moreover those public prayers and sacrifices which are intended to obtain for the whole people the favour of the gods. An ample domain is assigned to him as an appurtenance of his lofty position, and the produce of his fields and his cattle is consecrated in part to an abundant, though rude hospitality. Moreover he receives frequent presents, to avert his enmity, to conciliate his favour, or to buy off his exactions; and when plunder is taken from the enemy, a large previous share, comprising probably the most alluring female captive, is reserved for him apart from the general distribution. "Such is the position of the King in the heroic times of Greece--the only person (if we except the herald, and priests, each both special and subordinate) who is then presented to us as clothed with any individual authority--the person by whom all the executive functions, then few in number, which the society requires, are either performed or directed. His personal ascendancy--derived from Divine countenance bestowed both upon himself individually and upon his race, and probably from accredited Divine descent--is the salient feature in the picture: the people hearken to his voice, embrace his propositions, and obey his orders: not merely resistance, but even criticism upon his acts, is generally exhibited in an odious point of view, and is indeed never heard of except from some one or more of the subordinate princes." The characteristic of the English Monarchy is that it retains the feelings by which the heroic kings governed their rude age, and has added the feelings by which the Constitutions of later Greece ruled in more refined ages. We are a more mixed people than the Athenians, or probably than any political Greeks. We have progressed more unequally. The slaves in ancient times were a separate order; not ruled by the same laws, or thoughts, as other men. It was not necessary to think of them in making a constitution: it was not necessary to improve them in order to make a constitution possible. The Greek legislator had not to combine in his polity men like the labourers of Somersetshire, and men like Mr. Grote. He had not to deal with a community in which primitive barbarism lay as a recognised basis to acquired civilisation. WE HAVE. We have no slaves to keep down by special terrors and independent legislation. But we have whole classes unable to comprehend the idea of a constitution--unable to feel the least attachment to impersonal laws. Most do indeed vaguely know that there are some other institutions besides the Queen, and some rules by which she governs. But a vast number like their minds to dwell more upon her than upon anything else, and therefore she is inestimable. A republic has only difficult ideas in government; a Constitutional Monarchy has an easy idea too; it has a comprehensible element for the vacant many, as well as complex laws and notions for the inquiring few. A FAMILY on the throne is an interesting idea also. It brings down the pride of sovereignty to the level of petty life. No feeling could seem more childish than the enthusiasm of the English at the marriage of the Prince of Wales. They treated as a great political event, what, looked at as a matter of pure business, was very small indeed. But no feeling could be more like common human nature as it is, and as it is likely to be. The women--one half the human race at least--care fifty times more for a marriage than a ministry. All but a few cynics like to see a pretty novel touching for a moment the dry scenes of the grave world. A princely marriage is the brilliant edition of a universal fact, and, as such, it rivets mankind. We smile at the Court Circular; but remember how many people read the Court Circular! Its use is not in what it says, but in those to whom it speaks. They say that the Americans were more pleased at the Queen's letter to Mrs. Lincoln, than at any act of the English Government. It was a spontaneous act of intelligible feeling in the midst of confused and tiresome business. Just so a royal family sweetens politics by the seasonable addition of nice and pretty events. It introduces irrelevant facts into the business of government, but they are facts which speak to "men's bosoms" and employ their thoughts. To state the matter shortly, royalty is a government in which the attention of the nation is concentrated on one person doing interesting actions. A Republic is a government in which that attention is divided between many, who are all doing uninteresting actions. Accordingly, so long as the human heart is strong and the human reason weak, royalty will be strong because it appeals to diffused feeling, and Republics weak because they appeal to the understanding. Secondly. The English Monarchy strengthens our Government with the strength of religion. It is not easy to say why it should be so. Every instructed theologian would say that it was the duty of a person born under a Republic as much to obey that Republic as it is the duty of one born under a Monarchy to obey the monarch. But the mass of the English people do not think so; they agree with the oath of allegiance; they say it is their duty to obey the "Queen," and they have but hazy notions as to obeying laws without a queen. In former times, when our Constitution was incomplete, this notion of local holiness in one part was mischievous. All parts were struggling, and it was necessary each should have its full growth. But superstition said one should grow where it would, and no other part should grow without its leave. The whole cavalier party said it was their duty to obey the king, whatever the king did. There was to be "passive obedience" to him, and there was no religious obedience due to any one else. He was the "Lord's anointed," and no one else had been anointed at all. The Parliament, the laws, the press were human institutions; but the Monarchy was a Divine institution. An undue advantage was given to a part of the Constitution, and therefore the progress of the whole was stayed. After the Revolution this mischievous sentiment was much weaker. The change of the line of sovereigns was at first conclusive, If there was a mystic right in any one, that right was plainly in James II.; if it was an English duty to obey any one whatever he did, he was the person to be so obeyed; if there was an inherent inherited claim in any king, it was in the Stuart king to whom the crown had come by descent, and not in the Revolution king to whom it had come by vote of Parliament. All through the reign of William III. there was (in common speech) one king whom man had made, and another king whom God had made. The king who ruled had no consecrated loyalty to build upon; although he ruled in fact, according to sacred theory there was a king in France who ought to rule. But it was very hard for the English people, with their plain sense and slow imagination, to keep up a strong sentiment of veneration for a foreign adventurer. He lived under the protection of a French king; what he did was commonly stupid, and what he left undone was very often wise. As soon as Queen Anne began to reign there was a change of feeling; the old sacred sentiment began to cohere about her. There were indeed difficulties which would have baffled most people; but an Englishman whose heart is in a matter is not easily baffled. Queen Anne had a brother living and a father living, and by every rule of descent, their right was better than hers. But many people evaded both claims. They said James II. had "run away," and so abdicated, though he only ran away because he was in duresse and was frightened, and though he claimed the allegiance of his subjects day by day. The Pretender, it was said, was not legitimate, though the birth was proved by evidence which any Court of Justice would have accepted. The English people were "out of" a sacred monarch, and so they tried very hard to make a new one. Events, however, were too strong for them. They were ready and eager to take Queen Anne as the stock of a new dynasty; they were ready to ignore the claims of her father and the claims of her brother, but they could not ignore the fact that at the critical period she had no children. She had once had thirteen, but they all died in her lifetime, and it was necessary either to revert to the Stuarts or to make a new king by Act of Parliament. According to the Act of Settlement passed by the Whigs, the crown was settled on the descendants of the "Princess Sophia" of Hanover, a younger daughter of a daughter of James I. There were before her James II., his son, the descendants of a daughter of Charles I., and elder children of her own mother. But the Whigs passed these over because they were Catholics, and selected the Princess Sophia, who, if she was anything, was a Protestant. Certainly this selection was statesmanlike, but it could not be very popular. It was quite impossible to say that it was the duty of the English people to obey the House of Hanover upon any principles which do not concede the right of the people to choose their rulers, and which do not degrade monarchy from its solitary pinnacle of majestic reverence, and make it one only among many expedient institutions. If a king is a useful public functionary who may be changed, and in whose place you may make another, you cannot regard him with mystic awe and wonder; and if you are bound to worship him, of course you cannot change him. Accordingly, during the whole reigns of George I. and George II. the sentiment of religious loyalty altogether ceased to support the Crown. The prerogative of the king had no strong party to support it; the Tories, who naturally would support it, disliked the actual king; and the Whigs, according to their creed, disliked the king's office. Until the accession of George III. the most vigorous opponents of the Crown were the country gentlemen, its natural friends, and the representatives of quiet rural districts, where loyalty is mostly to be found, if anywhere. But after the accession of George III. the common feeling came back to the same point as in Queen Anne's time. The English were ready to take the new young prince as the beginning of a sacred line of sovereigns, just as they had been willing to take an old lady, who was the second cousin of his great-great-grandmother. So it is now. If you ask the immense majority of the Queen's subjects by what right she rules, they would never tell you that she rules by Parliamentary right, by virtue of 6 Anne, c. 7. They will say she rules by "God's grace"; they believe that they have a mystic obligation to obey her. When her family came to the Crown it was a sort of treason to maintain the inalienable right of lineal sovereignty, for it was equivalent to saying that the claim of another family was better than hers: but now, in the strange course of human events, that very sentiment has become her surest and best support. But it would be a great mistake to believe that at the accession of George III. the instinctive sentiment of hereditary loyalty at once became as useful as now. It began to be powerful, but it hardly began to be useful. There was so much harm done by it as well as so much good, that it is quite capable of being argued whether on the whole it was beneficial or hurtful. Throughout the greater part of his life George III. was a kind of "consecrated obstruction". Whatever he did had a sanctity different from what any one else did, and it perversely happened that he was commonly wrong. He had as good intentions as any one need have, and he attended to the business of his country, as a clerk with his bread to get attends to the business of his office. But his mind was small, his education limited, and he lived in a changing time. Accordingly, he was always resisting what ought to be, and prolonging what ought not to be. He was the sinister but sacred assailant of half his ministries; and when the French Revolution excited the horror of the world, and proved democracy to be "impious," the piety of England concentrated upon him, and gave him tenfold strength. The Monarchy by its religious sanction now confirms all our political order; in George III.'s time it confirmed little except itself. It gives now a vast strength to the entire Constitution, by enlisting on its behalf the credulous obedience of enormous masses; then it lived aloof, absorbed all the holiness into itself, and turned over all the rest of the polity to the coarse justification of bare expediency. A principal reason why the Monarchy so well consecrates our whole state is to be sought in the peculiarity many Americans and many utilitarians smile at. They laugh at this "extra," as the Yankee called it, at the solitary transcendent element. They quote Napoleon's saying, "that he did not wish to be fatted in idleness," when he refused to be grand elector in Sieyes' Constitution, which was an office copied, and M. Thiers says, well copied, from constitutional monarchy. But such objections are wholly wrong. No doubt it was absurd enough in the Abbe Sieyes to propose that a new institution, inheriting no reverence, and made holy by no religion, should be created to fill the sort of post occupied by a constitutional king in nations of monarchical history. Such an institution, far from being so august as to spread reverence around it, is too novel and artificial to get reverence for itself; if, too, the absurdity could anyhow be augmented, it was so by offering an office of inactive uselessness and pretended sanctity to Napoleon, the most active man in France, with the greatest genius for business, only not sacred, and exclusively fit for action. But the blunder of Sieyes brings the excellence of real monarchy to the best light. When a monarch can bless, it is best that he should not be touched. It should be evident that he does no wrong. He should not be brought too closely to real measurement. He should be aloof and solitary. As the functions of English royalty are for the most part latent, it fulfils this condition. It seems to order, but it never seems to struggle. It is commonly hidden like a mystery, and sometimes paraded like a pageant, but in neither case is it contentious. The nation is divided into parties, but the crown is of no party. Its apparent separation from business is that which removes it both from enmities and from desecration, which preserves its mystery, which enables it to combine the affection of conflicting parties--to be a visible symbol of unity to those still so imperfectly educated as to need a symbol. Thirdly. The Queen is the head of our society. If she did not exist the Prime Minister would be the first person in the country. He and his wife would have to receive foreign ministers, and occasionally foreign princes, to give the first parties in the country; he and she would be at the head of the pageant of life; they would represent England in the eyes of foreign nations; they would represent the Government of England in the eyes of the English. It is very easy to imagine a world in which this change would not be a great evil. In a country where people did not care for the outward show of life, where the genius of the people was untheatrical, and they exclusively regarded the substance of things, this matter would be trifling. Whether Lord and Lady Derby received the foreign ministers, or Lord and Lady Palmerston, would be a matter of indifference; whether they gave the nicest parties would be important only to the persons at those parties. A nation of unimpressible philosophers would not care at all how the externals of life were managed. Who is the showman is not material unless you care about the show. But of all nations in the world the English are perhaps the least a nation of pure philosophers. It would be a very serious matter to us to change every four or five years the visible head of our world. We are not now remarkable for the highest sort of ambition; but we are remarkable for having a great deal of the lower sort of ambition and envy. The House of Commons is thronged with people who get there merely for "social purposes," as the phrase goes; that is, that they and their families may go to parties else impossible. Members of Parliament are envied by thousands merely for this frivolous glory, as a thinker calls it. If the highest post in conspicuous life were thrown open to public competition, this low sort of ambition and envy would be fearfully increased. Politics would offer a prize too dazzling for mankind; clever base people would strive for it, and stupid base people would envy it. Even now a dangerous distinction is given by what is exclusively called public life. The newspapers describe daily and incessantly a certain conspicuous existence; they comment on its characters, recount its details, investigate its motives, anticipate its course. They give a precedent and a dignity to that world which they do not give to any other. The literary world, the scientific world, the philosophic world, not only are not comparable in dignity to the political world, but in comparison are hardly worlds at all. The newspaper makes no mention of them, and could not mention them. As are the papers, so are the readers; they, by irresistible sequence and association, believe that those people who constantly figure in the papers are cleverer, abler, or at any rate, somehow higher, than other people. "I wrote books," we heard of a man saying, "for twenty years, and I was nobody; I got into Parliament, and before I had taken my seat I had become somebody." English politicians are the men who fill the thoughts of the English public: they are the actors on the scene, and it is hard for the admiring spectators not to believe that the admired actor is greater than themselves. In this present age and country it would be very dangerous to give the slightest addition to a force already perilously great. If the highest social rank was to be scrambled for in the House of Commons, the number of social adventurers there would be incalculably more numerous, and indefinitely more eager. A very peculiar combination of causes has made this characteristic one of the most prominent in English society. The middle ages left all Europe with a social system headed by Courts. The Government was made the head of all society, all intercourse, and all life; everything paid allegiance to the sovereign, and everything ranged itself round the sovereign--what was next to be greatest, and what was farthest least. The idea that the head of the Government is the head of society is so fixed in the ideas of mankind that only a few philosophers regard it as historical and accidental, though when the matter is examined, that conclusion is certain and even obvious. In the first place, society as society does not naturally need a head at all. Its constitution, if left to itself, is not monarchical, but aristocratical. Society, in the sense we are now talking of, is the union of people for amusement and conversation. The making of marriages goes on in it, as it were, incidentally, but its common and main concern is talking and pleasure. There is nothing in this which needs a single supreme head; it is a pursuit in which a single person does not of necessity dominate. By nature it creates an "upper ten thousand"; a certain number of persons and families possessed of equal culture, and equal faculties, and equal spirit, get to be on a level--and that level a high level. By boldness, by cultivation, by "social science" they raise themselves above others; they become the "first families," and all the rest come to be below them. But they tend to be much about a level among one another; no one is recognised by all or by many others as superior to them all. This is society as it grew up in Greece or Italy, as it grows up now in any American or colonial town. So far from the notion of a "head of society" being a necessary notion, in many ages it would scarcely have been an intelligible notion. You could not have made Socrates understand it. He would have said, "If you tell me that one of my fellows is chief magistrate, and that I am bound to obey him, I understand you, and you speak well; or that another is a priest, and that he ought to offer sacrifices to the gods which I or any one not a priest ought not to offer, again I understand and agree with you. But if you tell me that there is in some citizen a hidden charm by which his words become better than my words, and his house better than my house, I do not follow you, and should be pleased if you will explain yourself." And even if a head of society were a natural idea, it certainly would not follow that the head of the civil Government should be that head. Society as such has no more to do with civil polity than with ecclesiastical. The organisation of men and women for the purpose of amusement is not necessarily identical with their organisation for political purposes, any more than with their organisation for religious purposes; it has of itself no more to do with the State than it has with the Church. The faculties which fit a man to be a great ruler are not those of society; some great rulers have been unintelligible like Cromwell, or brusque like Napoleon, or coarse and barbarous like Sir Robert Walpole. The light nothings of the drawing-room and the grave things of office are as different from one another as two human occupations can be. There is no naturalness in uniting the two; the end of it always is, that you put a man at the head of society who very likely is remarkable for social defects, and is not eminent for social merits. The best possible commentary on these remarks is the history of English history. It has not been sufficiently remarked that a change has taken place in the structure of our society exactly analogous to the change in our polity. A Republic has insinuated itself beneath the folds of a Monarchy. Charles II. was really the head of society; Whitehall, in his time, was the centre of the best talk, the best fashion, and the most curious love affairs of the age. He did not contribute good morality to society, but he set an example of infinite agreeableness. He concentrated around him all the light part of the high world of London, and London concentrated around it all the light part of the high world of England. The Court was the focus where everything fascinating gathered, and where everything exciting centred. Whitehall was an unequalled club, with female society of a very clever and sharp sort superadded. All this, as we know, is now altered. Buckingham Palace is as unlike a club as any place is likely to be. The Court is a separate part, which stands aloof from the rest of the London world, and which has but slender relations with the more amusing part of it. The first two Georges were men ignorant of English, and wholly unfit to guide and lead English society. They both preferred one or two German ladies of bad character to all else in London. George III. had no social vices, but he had no social pleasures. He was a family man, and a man of business, and sincerely preferred a leg of mutton and turnips after a good day's work, to the best fashion and the most exciting talk. In consequence, society in London, though still in form under the domination of a Court, assumed in fact its natural and oligarchical structure. It, too, has become an "upper ten thousand"; it is no more monarchical in fact than the society of New York. Great ladies give the tone to it with little reference to the particular Court world. The peculiarly masculine world of the clubs and their neighbourhood has no more to do in daily life with Buckingham Palace than with the Tuileries. Formal ceremonies of presentation and attendance are retained. The names of levee and drawing-room still sustain the memory of the time when the king's bed-chamber and the queen's "withdrawing room" were the centres of London life, but they no longer make a part of social enjoyment: they are a sort of ritual in which nowadays almost every decent person can if he likes take part. Even Court balls, where pleasure is at least supposed to be possible, are lost in a London July. Careful observers have long perceived this, but it was made palpable to every one by the death of the Prince Consort. Since then the Court has been always in a state of suspended animation, and for a time it was quite annihilated. But everything went on as usual. A few people who had no daughters and little money made it an excuse to give fewer parties, and if very poor, stayed in the country, but upon the whole the difference was not perceptible. The queen bee was taken away, but the hive went on. Refined and original observers have of late objected to English royalty that it is not splendid enough. They have compared it with the French Court, which is better in show, which comes to the surface everywhere so that you cannot help seeing it, which is infinitely and beyond question the most splendid thing in France. They have said, "that in old times the English Court took too much of the nation's money, and spent it ill; but now, when it could be trusted to spend well, it does not take enough of the nation's money. There are arguments for not having a Court, and there are arguments for having a splendid Court; but there are no arguments for having a mean Court. It is better to spend a million in dazzling when you wish to dazzle, than three-quarters of a million in trying to dazzle and yet not dazzling." There may be something in this theory; it may be that the Court of England is not quite as gorgeous as we might wish to see it. But no comparison must ever be made between it and the French Court. The Emperor represents a different idea from the Queen. He is not the head of the State; he IS the State. The theory of his Government is that every one in France is equal, and that the Emperor embodies the principle of equality. The greater you make him, the less, and therefore the more equal, you make all others. He is magnified that others may be dwarfed. The very contrary is the principle of English royalty. As in politics it would lose its principal use if it came forward into the public arena, so in society if it advertised itself it would be pernicious. We have voluntary show enough already in London; we do not wish to have it encouraged and intensified, but quieted and mitigated. Our Court is but the head of an unequal, competing, aristocratic society; its splendour would not keep others down, but incite others to come on. It is of use so long as it keeps others out of the first place, and is guarded and retired in that place. But it would do evil if it added a new example to our many examples of showy wealth--if it gave the sanction of its dignity to the race of expenditure. Fourthly. We have come to regard the Crown as the head of our morality. The virtues of Queen Victoria and the virtues of George III. have sunk deep into the popular heart. We have come to believe that it is natural to have a virtuous sovereign, and that the domestic virtues are as likely to be found on thrones as they are eminent when there. But a little experience and less thought show that royalty cannot take credit for domestic excellence. Neither George I., nor George II., nor William IV. were patterns of family merit; George IV. was a model of family demerit. The plain fact is, that to the disposition of all others most likely to go wrong, to an excitable disposition, the place of a constitutional king has greater temptations than almost any other, and fewer suitable occupations than almost any other. All the world and all the glory of it, whatever is most attractive, whatever is most seductive, has always been offered to the Prince of Wales of the day, and always will be. It is not rational to expect the best virtue where temptation is applied in the most trying form at the frailest time of human life. The occupations of a constitutional monarch are grave, formal, important, but never exciting; they have nothing to stir eager blood, awaken high imagination, work off wild thoughts. On men like George III., with a predominant taste for business occupations, the routine duties of constitutional royalty have doubtless a calm and chastening effect. The insanity with which he struggled, and in many cases struggled very successfully, during many years, would probably have burst out much oftener but for the sedative effect of sedulous employment. But how few princes have ever felt the anomalous impulse for real work; how uncommon is that impulse anywhere; how little are the circumstances of princes calculated to foster it; how little can it be relied on as an ordinary breakwater to their habitual temptations! Grave and careful men may have domestic virtues on a constitutional throne, but even these fail sometimes, and to imagine that men of more eager temperaments will commonly produce them, is to expect grapes from thorns and figs from thistles. Lastly, constitutional royalty has the function which I insisted on at length in my last essay, and which, though it is by far the greatest, I need not now enlarge upon again. It acts as a DISGUISE. It enables our real rulers to change without heedless people knowing it. The masses of Englishmen are not fit for an elective government; if they knew how near they were to it, they would be surprised, and almost tremble. Of a like nature is the value of constitutional royalty in times of transition. The greatest of all helps to the substitution of a Cabinet government for a preceding absolute monarchy is the accession of a king favourable to such a government, and pledged to it. Cabinet government, when new, is weak in time of trouble. The Prime Minister--the chief on whom everything depends, who must take responsibility if any one is to take it, who must use force if any one is to use it--is not fixed in power. He holds his place, by the essence of the Government, with some uncertainty. Among a people well-accustomed to such a Government, such a functionary may be bold: he may rely, if not on the Parliament, on the nation which understands and values him. But when that Government has only recently been introduced, it is difficult for such a Minister to be as bold as he ought to be. His power rests too much on human reason, and too little on human instinct. The traditional strength of the hereditary monarch is at these times of incalculable use. It would have been impossible for England to get through the first years after 1688 but for the singular ability of William III. It would have been impossible for Italy to have attained and kept her freedom without the help of Victor Emmanuel: neither the work of Cavour nor the work of Garibaldi were more necessary than his. But the failure of Louis Philippe to use his reserve power as constitutional monarch is the most instructive proof how great that reserve power is. In February, 1848, Guizot was weak because his tenure of office was insecure. Louis Philippe should have made that tenure certain. Parliamentary reform might afterwards have been conceded to instructed opinion, but nothing ought to have been conceded to the mob. The Parisian populace ought to have been put down, as Guizot wished. If Louis Philippe had been a fit king to introduce free government, he would have strengthened his Ministers when they were the instruments of order, even if he afterwards discarded them when order was safe, and policy could be discussed. But he was one of the cautious men who are "noted" to fail in old age: though of the largest experience and of great ability, he failed and lost his crown for want of petty and momentary energy, which at such a crisis a plain man would have at once put forth. Such are the principal modes in which the institution of royalty by its august aspect influences mankind, and in the English state of civilisation they are invaluable. Of the actual business of the sovereign--the real work the Queen does--I shall speak in my next paper. II. The House of Commons has inquired into most things, but has never had a committee on "the Queen". There is no authentic blue-book to say what she does. Such an investigation cannot take place; but if it could, it would probably save her much vexatious routine, and many toilsome and unnecessary hours. The popular theory of the English Constitution involves two errors as to the sovereign. First, in its oldest form at least, it considers him as an "Estate of the Realm," a separate co-ordinate authority with the House of Lords and the House of Commons. This and much else the sovereign once was, but this he is no longer. That authority could only be exercised by a monarch with a legislative veto. He should be able to reject bills, if not as the House of Commons rejects them, at least as the House of Peers rejects them. But the Queen has no such veto. She must sign her own death-warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power. She has long ceased to have any. Secondly, the ancient theory holds that the Queen is the executive. The American Constitution was made upon a most careful argument, and most of that argument assumes the king to be the administrator of the English Constitution, and an unhereditary substitute for him--viz., a president--to be peremptorily necessary. Living across the Atlantic, and misled by accepted doctrines, the acute framers of the Federal Constitution, even after the keenest attention, did not perceive the Prime Minister to be the principal executive of the British Constitution, and the sovereign a cog in the mechanism. There is, indeed, much excuse for the American legislators in the history of that time. They took their idea of our Constitution from the time when they encountered it. But in the so-called Government of Lord North, George III. was the Government. Lord North was not only his appointee, but his agent. The Minister carried on a war which he disapproved and hated, because it was a war which his sovereign approved and liked. Inevitably, therefore, the American Convention believed the King, from whom they had suffered, to be the real executive, and not the Minister, from whom they had not suffered. If we leave literary theory, and look to our actual old law, it is wonderful how much the sovereign can do. A few years ago the Queen very wisely attempted to make life peers, and the House of Lords very unwisely, and contrary to its own best interests, refused to admit her claim. They said her power had decayed into non-existence; she once had it, they allowed, but it had ceased by long disuse. If any one will run over the pages of Comyn's Digest or any other such book, title "Prerogative," he will find the Queen has a hundred such powers which waver between reality and desuetude, and which would cause a protracted and very interesting legal argument if she tried to exercise them. Some good lawyer ought to write a careful book to say which of these powers are really usable, and which are obsolete. There is no authentic explicit information as to what the Queen can do, any more than of what she does. In the bare superficial theory of free institutions this is undoubtedly a defect. Every power in a popular Government ought to be known. The whole notion of such a Government is that the political people--the governing people--rules as it thinks fit. All the acts of every administration are to be canvassed by it; it is to watch if such acts seem good, and in some manner or other to interpose if they seem not good. But it cannot judge if it is to be kept in ignorance; it cannot interpose if it does not know. A secret prerogative is an anomaly--perhaps the greatest of anomalies. That secrecy is, however, essential to the utility of English royalty as it now is. Above all things our royalty is to be reverenced, and if you begin to poke about it you cannot reverence it. When there is a select committee on the Queen, the charm of royalty will be gone. Its mystery is its life. We must not let in daylight upon magic. We must not bring the Queen into the combat of politics, or she will cease to be reverenced by all combatants; she will become one combatant among many. The existence of this secret power is, according to abstract theory, a defect in our constitutional polity, but it is a defect incident to a civilisation such as ours, where august and therefore unknown powers are needed, as well as known and serviceable powers. If we attempt to estimate the working of this inner power by the evidence of those, whether dead or living, who have been brought in contact with it, we shall find a singular difference. Both the courtiers of George III. and the courtiers of Queen Victoria are agreed as to the magnitude of the royal influence. It is with both an accepted secret doctrine that the Crown does more than it seems. But there is a wide discrepancy in opinion as to the quality of that action. Mr. Fox did not scruple to describe the hidden influence of George III. as the undetected agency of "an infernal spirit". The action of the Crown at that period was the dread and terror of Liberal politicians. But now the best Liberal politicians say, "WE shall never know, but when history is written our children may know, what we owe to the Queen and Prince Albert". The mystery of the Constitution, which used to be hated by our calmest, most thoughtful, and instructed statesmen, is now loved and reverenced by them. Before we try to account for this change, there is one part of the duties of the Queen which should be struck out of the discussion. I mean the formal part. The Queen has to assent to and sign countless formal documents, which contain no matter of policy, of which the purport is insignificant, which any clerk could sign as well. One great class of documents George III. used to read before he signed them, till Lord Thurlow told him, "It was nonsense his looking at them, for he could not understand them". But the worst case is that of commissions in the army. Till an Act passed only three years since the Queen used to sign ALL military commissions, and she still signs all fresh commissions. The inevitable and natural consequence is that such commissions were, and to some extent still are, in arrears by thousands. Men have often been known to receive their commissions for the first time years after they have left the service. If the Queen had been an ordinary officer she would long since have complained, and long since have been relieved of this slavish labour. A cynical statesman is said to have defended it on the ground "that you MAY have a fool for a sovereign, and then it would be desirable he should have plenty of occupation in which he can do no harm". But it is in truth childish to heap formal duties of business upon a person who has of necessity so many formal duties of society. It is a remnant of the old days when George III. would know everything, however trivial, and assent to everything, however insignificant. These labours of routine may be dismissed from the discussions. It is not by them that the sovereign acquires his authority either for evil or for good. The best mode of testing what we owe to the Queen is to make a vigorous effort of the imagination, and see how we should get on without her. Let us strip Cabinet government of all its accessories, let us reduce it to its two necessary constituents--a representative assembly (a House of Commons) and a Cabinet appointed by that assembly--and examine how we should manage with them only. We are so little accustomed to analyse the Constitution; we are so used to ascribe the whole effect of the Constitution to the whole Constitution, that a great many people will imagine it to be impossible that a nation should thrive or even live with only these two simple elements. But it is upon that possibility that the general imitability of the English Government depends. A monarch that can be truly reverenced, a House of Peers that can be really respected, are historical accidents nearly peculiar to this one island, and entirely peculiar to Europe. A new country, if it is to be capable of a Cabinet government, if it is not to degrade itself to Presidential government, must create that Cabinet out of its native resources--must not rely on these Old World debris. Many modes might be suggested by which a Parliament might do in appearance what our Parliament does in reality, viz., appoint a Premier. But I prefer to select the simplest of all modes. We shall then see the bare skeleton of this polity, perceive in what it differs from the royal form, and be quite free from the imputation of having selected an unduly charming and attractive substitute. Let us suppose the House of Commons--existing alone and by itself--to appoint the Premier quite simply, just as the shareholders of a railway choose a director. At each vacancy, whether caused by death or resignation, let any member or members have the right of nominating a successor; after a proper interval, such as the time now commonly occupied by a Ministerial crisis, ten days or a fortnight, let the members present vote for the candidate they prefer; then let the Speaker count the votes, and the candidate with the greatest number be Premier. This mode of election would throw the whole choice into the hands of party organisation, just as our present mode does, except in so far as the Crown interferes with it; no outsider would ever be appointed, because the immense number of votes which every great party brings into the field would far outnumber every casual and petty minority. The Premier should not be appointed for a fixed time, but during good behaviour or the pleasure of Parliament. Mutatis mutandis, subject to the differences now to be investigated, what goes on now would go on then. The Premier then, as now, must resign upon a vote of want of confidence, but the volition of Parliament would then be the overt and single force in the selection of a successor, whereas it is now the predominant though latent force. It will help the discussion very much if we divide it into three parts. The whole course of a representative Government has three stages--first, when a Ministry is appointed; next, during its continuance; last, when it ends. Let us consider what is the exact use of the Queen at each of these stages, and how our present form of government differs in each, whether for good or for evil from that simpler form of Cabinet government which might exist without her. At the beginning of an administration there would not be much difference between the royal and unroyal species of Cabinet governments when there were only two great parties in the State, and when the greater of those parties was thoroughly agreed within itself who should be its Parliamentary leader, and who therefore should be its Premier. The sovereign must now accept that recognised leader; and if the choice were directly made by the House of Commons, the House must also choose him; its supreme section, acting compactly and harmoniously, would sway its decisions without substantial resistance, and perhaps without even apparent competition. A predominant party, rent by no intestine demarcation, would be despotic. In such a case Cabinet government would go on without friction whether there was a Queen or whether there was no Queen. The best sovereign could then achieve no good, and the worst effect no harm. But the difficulties are far greater when the predominant party is not agreed who should be its leader. In the royal form of Cabinet government the sovereign then has sometimes a substantial selection; in the unroyal, who would choose? There must be a meeting at "Willis's Rooms"; there must be that sort of interior despotism of the majority over the minority within the party, by which Lord John Russell in 1859 was made to resign his pretensions to the supreme government, and to be content to serve as a subordinate to Lord Palmerston. The tacit compression which a party anxious for office would exercise over leaders who divided its strength, would be used and must be used. Whether such a party would always choose precisely the best man may well be doubted. In a party once divided it is very difficult to secure unanimity in favour of the very person whom a disinterested bystander would recommend. All manner of jealousies and enmities are immediately awakened, and it is always difficult, often impossible, to get them to sleep again. But though such a party might not select the very best leader, they have the strongest motives to select a very good leader. The maintenance of their rule depends on it Under a Presidential Constitution the preliminary caucuses which choose the President need not care as to the ultimate fitness of the man they choose. They are solely concerned with his attractiveness as a candidate; they need not regard his efficiency as a ruler. If they elect a man of weak judgment, he will reign his stated term; even though he show the best judgment, at the end of that term there will be by constitutional destiny another election. But under a Ministerial government there is no such fixed destiny. The Government is a removable Government, its tenure depends upon its conduct. If a party in power were so foolish as to choose a weak man for its head, it would cease to be in power. Its judgment is its life. Suppose in 1859 that the Whig party had determined to set aside both Earl Russell and Lord Palmerston and to choose for its head an incapable nonentity, the Whig party would probably have been exiled from office at the Schleswig-Holstein difficulty. The nation would have deserted them, and Parliament would have deserted them, too; neither would have endured to see a secret negotiation, on which depended the portentous alternative of war or peace, in the hands of a person who was thought to be weak--who had been promoted because of his mediocrity--whom his own friends did not respect. A Ministerial government, too, is carried on in the face of day. Its life is in debate. A President may be a weak man; yet if he keep good Ministers to the end of his administration, he may not be found out--it may still be a dubious controversy whether he is wise or foolish. But a Prime Minister must show what he is. He must meet the House of Commons in debate; he must be able to guide that assembly in the management of its business, to gain its ear in every emergency, to rule it in its hours of excitement. He is conspicuously submitted to a searching test, and if he fails he must resign. Nor would any party like to trust to a weak man the great power which a Cabinet government commits to its Premier. The Premier, though elected by Parliament can dissolve Parliament. Members would be naturally anxious that the power which might destroy their coveted dignity should be lodged in fit hands. They dare not place in unfit hands a power which, besides hurting the nation, might altogether ruin them. We may be sure, therefore, that whenever the predominant party is divided, the UN-royal form of Cabinet government would secure for us a fair and able Parliamentary leader--that it would give us a good Premier, if not the very best. Can it be said that the royal form does more? In one case I think it may. If the constitutional monarch be a man of singular discernment, of unprejudiced disposition, and great political knowledge, he may pick out from the ranks of the divided party its very best leader, even at a time when the party, if left to itself, would not nominate him. If the sovereign be able to play the part of that thoroughly intelligent but perfectly disinterested spectator who is so prominent in the works of certain moralists, he may be able to choose better for his subjects than they would choose for themselves. But if the monarch be not so exempt from prejudice, and have not this nearly miraculous discernment, it is not likely that he will be able to make a wiser choice than the choice of the party itself. He certainly is not under the same motive to choose wisely. His place is fixed whatever happens, but the failure of an appointing party depends on the capacity of their appointee. There is great danger, too, that the judgment of the sovereign may be prejudiced. For more than forty years the personal antipathies of George III. materially impaired successive administrations. Almost at the beginning of his career he discarded Lord Chatham: almost at the end he would not permit Mr. Pitt to coalesce with Mr. Fox. He always preferred mediocrity; he generally disliked high ability; he always disliked great ideas. If constitutional monarchs be ordinary men of restricted experience and common capacity (and we have no right to suppose that BY MIRACLE they will be more), the judgment of the sovereign will often be worse than the judgment of the party, and he will be very subject to the chronic danger of preferring a respectful common-place man, such as Addington, to an independent first-rate man, such as Pitt. We shall arrive at the same sort of mixed conclusion if we examine the choice of a Premier under both systems in the critical case of Cabinet government--the case of three parties. This is the case in which that species of government is most sure to exhibit its defects, and least likely to exhibit its merits. The defining characteristic of that government is the choice of the executive ruler by the legislative assembly; but when there are three parties a satisfactory choice is impossible. A really good selection is a selection by a large majority which trusts those it chooses, but when there are three parties there is no such trust. The numerically weakest has the casting vote--it can determine which candidate shall be chosen. But it does so under a penalty. It forfeits the right of voting for its own candidate. It settles which of other people's favourites shall be chosen, on condition of abandoning its own favourite. A choice based on such self-denial can never be a firm choice--it is a choice at any moment liable to be revoked. The events of 1858, though not a perfect illustration of what I mean, are a sufficient illustration. The Radical party, acting apart from the moderate Liberal party, kept Lord Derby in power. The ultra-movement party thought it expedient to combine with the non-movement party. As one of them coarsely but clearly put it, "WE get more of our way under these men than under the other men"; he meant that, in his judgment, the Tories would be more obedient to the Radicals than the Whigs. But it is obvious that a union of opposites so marked could not be durable. The Radicals bought it by choosing the men whose principles were most adverse to them; the Conservatives bought it by agreeing to measures whose scope was most adverse to them. After a short interval the Radicals returned to their natural alliance and their natural discontent with the moderate Whigs. They used their determining vote first for a Government of one opinion and then for a Government of the contrary opinion. I am not blaming this policy. I am using it merely as an illustration. I say that if we imagine this sort of action greatly exaggerated and greatly prolonged Parliamentary government becomes impossible. If there are three parties, no two of which will steadily combine for mutual action, but of which the weakest gives a rapidly oscillating preference to the two others, the primary condition of a Cabinet polity is not satisfied. We have not a Parliament fit to choose; we cannot rely on the selection of a sufficiently permanent executive, because there is no fixity in the thoughts and feelings of the choosers. Under every species of Cabinet government, whether the royal or the unroyal, this defect can be cured in one way only. The moderate people of every party must combine to support the Government which, on the whole, suits every party best. This is the mode in which Lord Palmerston's administration has been lately maintained; a Ministry in many ways defective, but more beneficially vigorous abroad, and more beneficially active at home, than the vast majority of English Ministries. The moderate Conservatives and the moderate Radicals have maintained a steady Government by a sufficiently coherent union with the moderate Whigs. Whether there is a king or no king, this perservative self-denial is the main force on which we must rely for the satisfactory continuance of a Parliamentary Government at this its period of greatest trial. Will that moderation be aided or impaired by the addition of a sovereign? Will it be more effectual under the royal sort of Ministerial Government, or will it be less effectual? If the sovereign has a genius for discernment, the aid which he can give at such a crisis will be great. He will select for his Minister, and if possible maintain as his Minister, the statesman upon whom the moderate party will ultimately fix their choice, but for whom at the outset it is blindly searching; being a man of sense, experience, and tact, he will discern which is the combination of equilibrium, which is the section with whom the milder members of the other sections will at last ally themselves. Amid the shifting transitions of confused parties, it is probable that he will have many opportunities of exercising a selection. It will rest with him to call either on A B to form an administration, or upon X Y, and either may have a chance of trial. A disturbed state of parties is inconsistent with fixity, but it abounds in momentary tolerance. Wanting something, but not knowing with precision what, parties will accept for a brief period anything, to see whether it may be that unknown something--to see what it will do. During the long succession of weak Governments which begins with the resignation of the Duke of Newcastle in 1762 and ends with the accession of Mr. Pitt in 1784, the vigorous will of George III. was an agency of the first magnitude. If at a period of complex and protracted division of parties, such as are sure to occur often and last long in every enduring Parliamentary government, the extrinsic force of royal selection were always exercised discreetly, it would be a political benefit of incalculable value. But will it be so exercised? A constitutional sovereign must in the common course of government be a man of but common ability. I am afraid, looking to the early acquired feebleness of hereditary dynasties, that we must expect him to be a man of inferior ability. Theory and experience both teach that the education of a prince can be but a poor education, and that a royal family will generally have less ability than other families. What right have we then to expect the perpetual entail on any family of an exquisite discretion, which if it be not a sort of genius, is at least as rare as genius? Probably in most cases the greatest wisdom of a constitutional king would show itself in well-considered inaction. In the confused interval between 1857 and 1859 the Queen and Prince Albert were far too wise to obtrude any selection of their own. If they had chosen, perhaps they would not have chosen Lord Palmerston. But they saw, or may be believed to have seen, that the world was settling down without them, and that by interposing an extrinsic agency, they would but delay the beneficial crystallisation of intrinsic forces. There is, indeed, a permanent reason which would make the wisest king, and the king who feels most sure of his wisdom, very slow to use that wisdom. The responsibility of Parliament should be felt by Parliament. So long as Parliament thinks it is the sovereign's business to find a Government it will be sure not to find a Government itself. The royal form of Ministerial government is the worst of all forms if it erect the subsidiary apparatus into the principal force, if it induce the assembly which ought to perform paramount duties to expect some one else to perform them. It should be observed, too, in fairness to the unroyal species of Cabinet government, that it is exempt from one of the greatest and most characteristic defects of the royal species. Where there is no Court there can be no evil influence from a Court. What these influences are every one knows; though no one, hardly the best and closest observer, can say with confidence and precision how great their effect is. Sir Robert Walpole, in language too coarse for our modern manners, declared after the death of Queen Caroline, that he would pay no attention to the king's daughters ("those girls," as he called them), but would rely exclusively on Madame de Walmoden, the king's mistress. "The king," says a writer in George IV.'s time, "is in our favour, and what is more to the purpose, the Marchioness of Conyngham is so too." Everybody knows to what sort of influences several Italian changes of Government since the unity of Italy have been attributed. These sinister agencies are likely to be most effective just when everything else is troubled, and when, therefore, they are particularly dangerous. The wildest and wickedest king's mistress would not plot against an invulnerable administration. But very many will intrigue when Parliament is perplexed, when parties are divided, when alternatives are many, when many evil things are possible, when Cabinet government must be difficult. It is very important to see that a good administration can be started without a sovereign, because some colonial statesmen have doubted it. "I can conceive," it has been said, "that a Ministry would go on well enough without a governor when it was launched, but I do not see how to launch it." It has even been suggested that a colony which broke away from England, and had to form its own Government, might not unwisely choose a governor for life, and solely trusted with selecting Ministers, something like the Abbe Sieyes's grand elector. But the introduction of such an officer into such a colony would in fact be the voluntary erection of an artificial encumbrance to it. He would inevitably be a party man. The most dignified post in the State must be an object of contest to the great sections into which every active political community is divided. These parties mix in everything and meddle in everything; and they neither would nor could permit the most honoured and conspicuous of all stations to be filled, except at their pleasure. They know, too, that the grand elector, the great chooser of Ministries, might be, at a sharp crisis, either a good friend or a bad enemy. The strongest party would select some one who would be on their side when he had to take a side, who would incline to them when he did incline, who should be a constant auxiliary to them and a constant impediment to their adversaries. It is absurd to choose by contested party election an impartial chooser of Ministers. But it is during the continuance of a Ministry, rather than at its creation, that the functions of the sovereign will mainly interest most persons, and that most people will think them to be of the gravest importance. I own I am myself of that opinion. I think it may be shown that the post of sovereign over an intelligent and political people under a constitutional monarchy is the post which a wise man would choose above any other--where he would find the intellectual impulses best stimulated and the worst intellectual impulses best controlled. On the duties of the Queen during an administration we have an invaluable fragment from her own hand. In 1851 Louis Napoleon had his coup d'etat: in 1852 Lord John Russell had his--he expelled Lord Palmerston. By a most instructive breach of etiquette he read in the House a royal memorandum on the duties of his rival. It is as follows: "The Queen requires, first, that Lord Palmerston will distinctly state what he proposes in a given case, in order that the Queen may know as distinctly to what she is giving her royal sanction. Secondly, having once given her sanction to such a measure that it be not arbitrarily altered or modified by the Minister. Such an act she must consider as failing in sincerity towards the Crown, and justly to be visited by the exercise of her constitutional right of dismissing that Minister. She expects to be kept informed of what passes between him and Foreign Ministers before important decisions are taken based upon that intercourse; to receive the foreign despatches in good time; and to have the drafts for her approval sent to her in sufficient time to make herself acquainted with their contents before they must be sent off." In addition to the control over particular Ministers, and especially over the Foreign Minister, the Queen has a certain control over the Cabinet. The first Minister, it is understood, transmits to her authentic information of all the most important decisions, together with, what the newspapers would do equally well, the more important votes in Parliament. He is bound to take care that she knows everything which there is to know as to the passing politics of the nation. She has by rigid usage a right to complain if she does not know of every great act of her Ministry, not only before it is done, but while there is yet time to consider it--while it is still possible that it may not be done. To state the matter shortly, the sovereign has, under a constitutional monarchy such as ours, three rights--the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others. He would find that his having no others would enable him to use these with singular effect. He would say to his Minister: "The responsibility of these measures is upon you. Whatever you think best must be done. Whatever you think best shall have my full and effectual support. BUT you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. I do not oppose, it is my duty not to oppose; but observe that I WARN." Supposing the king to be right, and to have what kings often have, the gift of effectual expression, he could not help moving his Minister. He might not always turn his course, but he would always trouble his mind. In the course of a long reign a sagacious king would acquire an experience with which few Ministers could contend. The king could say: "Have you referred to the transactions which happened during such and such an administration, I think about fourteen years ago? They afford an instructive example of the bad results which are sure to attend the policy which you propose. You did not at that time take so prominent a part in public life as you now do, and it is possible you do not fully remember all the events. I should recommend you to recur to them, and to discuss them with your older colleagues who took part in them. It is unwise to recommence a policy which so lately worked so ill." The king would indeed have the advantage which a permanent under-secretary has over his superior the Parliamentary secretary--that of having shared in the proceedings of the previous Parliamentary secretaries. These proceedings were part of his own life; occupied the best of his thoughts, gave him perhaps anxiety, perhaps pleasure, were commenced in spite of his dissuasion, or were sanctioned by his approval. The Parliamentary secretary vaguely remembers that something was done in the time of some of his predecessors, when he very likely did not know the least or care the least about that sort of public business. He has to begin by learning painfully and imperfectly what the permanent secretary knows by clear and instant memory. No doubt a Parliamentary secretary always can, and sometimes does, silence his subordinate by the tacit might of his superior dignity. He says: "I do not think there is much in all that. Many errors were committed at the time you refer to which we need not now discuss." A pompous man easily sweeps away the suggestions of those beneath him. But though a minister may so deal with his subordinate, he cannot so deal with his king. The social force of admitted superiority by which he overturned his under-secretary is now not with him but against him. He has no longer to regard the deferential hints of an acknowledged inferior, but to answer the arguments of a superior to whom he has himself to be respectful. George III. in fact knew the forms of public business as well or better than any statesman of his time. If, in addition to his capacity as a man of business and to his industry, he had possessed the higher faculties of a discerning states man, his influence would have been despotic. The old Constitution of England undoubtedly gave a sort of power to the Crown which our present Constitution does not give. While a majority in Parliament was principally purchased by royal patronage, the king was a party to the bargain either with his Minister or without his Minister. But even under our present Constitution a monarch like George III., with high abilities, would possess the greatest influence. It is known to all Europe that in Belgium King Leopold has exercised immense power by the use of such means as I have described. It is known, too, to every one conversant with the real course of the recent history of England, that Prince Albert really did gain great power in precisely the same way. He had the rare gifts of a constitutional monarch. If his life had been prolonged twenty years, his name would have been known to Europe as that of King Leopold is known. While he lived he was at a disadvantage. The statesmen who had most power in England were men of far greater experience than himself. He might, and no doubt did, exercise a great, if not a commanding influence over Lord Malmesbury, but he could not rule Lord Palmerston. The old statesman who governed England, at an age when most men are unfit to govern their own families, remembered a whole generation of states men who were dead before Prince Albert was born. The two were of different ages and different natures. The elaborateness of the German prince--an elaborateness which has been justly and happily compared with that of Goethe--was wholly alien to the half-Irish, half-English, statesman. The somewhat boisterous courage in minor dangers, and the obtrusive use of an always effectual but not always refined, commonplace, which are Lord Palmerston's defects, doubtless grated on Prince Albert, who had a scholar's caution and a scholar's courage. The facts will be known to our children's children, though not to us. Prince Albert did much, but he died ere he could have made his influence felt on a generation of statesmen less experienced than he was, and anxious to learn from him. It would be childish to suppose that a conference between a Minister and his sovereign can ever be a conference of pure argument. "The divinity which doth hedge a king" may have less sanctity than it had, but it still has much sanctity. No one, or scarcely any one, can argue with a Cabinet Minister in his own room as well as he would argue with another man in another room. He cannot make his own points as well; he cannot unmake as well the points presented to him. A monarch's room is worse. The best instance is Lord Chatham, the most dictatorial and imperious of English statesmen, and almost the first English statesman who was borne into power against the wishes of the king and against the wishes of the nobility--the first popular Minister. We might have expected a proud tribune of the people to be dictatorial to his sovereign--to be to the king what he was to all others. On the contrary, he was the slave of his own imagination; there was a kind of mystic enchantment in vicinity to the monarch which divested him of his ordinary nature. "The least peep into the king's closet," said Mr. Burke, "intoxicates him, and will to the end of his life." A wit said that, even at the levee, he bowed so low that you could see the tip of his hooked nose between his legs. He was in the habit of kneeling at the bedside of George III. while transacting business. Now no man can ARGUE on his knees. The same superstitious feeling which keeps him in that physical attitude will keep him in a corresponding mental attitude. He will not refute the bad arguments of the king as he will refute another man's bad arguments. He will not state his own best arguments effectively and incisively when he knows that the king would not like to hear them. In a nearly balanced argument the king must always have the better, and in politics many most important arguments are nearly balanced. Whenever there was much to be said for the king's opinion it would have its full weight; whatever was said for the Minister's opinion would only have a lessened and enfeebled weight. The king, too, possesses a power, according to theory, for extreme use on a critical occasion, but which he can in law use on any occasion. He can dissolve; he can say to his Minister, in fact, if not in words, "This Parliament sent you here, but I will see if I cannot get another Parliament to send some one else here." George III. well understood that it was best to take his stand at times and on points when it was perhaps likely, or at any rate not unlikely, the nation would support him. He always made a Minister that he did not like tremble at the shadow of a possible successor. He had a cunning in such matters like the cunning of insanity. He had conflicts with the ablest men of his time, and he was hardly ever baffled. He understood how to help a feeble argument by a tacit threat, and how best to address it to an habitual deference. Perhaps such powers as these are what a wise man would most seek to exercise and least fear to possess. To wish to be a despot, "to hunger after tyranny," as the Greek phrase had it, marks in our day an uncultivated mind. A person who so wishes cannot have weighed what Butler calls the "doubtfulness things are involved in". To be sure you are right to impose your will, or to wish to impose it, with violence upon others; to see your own ideas vividly and fixedly, and to be tormented till you can apply them in life and practice, not to like to hear the opinions of others, to be unable to sit down and weigh the truth they have, are but crude states of intellect in our present civilisation. We know, at least, that facts are many; that progress is complicated; that burning ideas (such as young men have) are mostly false and always incomplete. The notion of a far-seeing and despotic statesman, who can lay down plans for ages yet unborn, is a fancy generated by the pride of the human intellect to which facts give no support. The plans of Charlemagne died with him; those of Richelieu were mistaken; those of Napoleon gigantesque and frantic. But a wise and great constitutional monarch attempts no such vanities. His career is not in the air; he labours in the world of sober fact; he deals with schemes which can be effected--schemes which are desirable--schemes which are worth the cost. He says to the Ministry his people send to him, to Ministry after Ministry, "I think so and so; do you see if there is anything in it. I have put down my reasons in a certain memorandum, which I will give you. Probably it does not exhaust the subject, but it will suggest materials for your consideration." By years of discussion with Ministry after Ministry, the best plans of the wisest king would certainly be adopted, and the inferior plans, the impracticable plans, rooted out and rejected. He could not be uselessly beyond his time, for he would have been obliged to convince the representatives, the characteristic men of his time. He would have the best means of proving that he was right on all new and strange matters, for he would have won to his side probably, after years of discussion, the chosen agents of the commonplace world--men who were where they were, because they had pleased the men of the existing age, who will never be much disposed to new conceptions or profound thoughts. A sagacious and original constitutional monarch might go to his grave in peace if any man could. He would know that his best laws were in harmony with his age; that they suited the people who were to work them, the people who were to be benefited by them. And he would have passed a happy life. He would have passed a life in which he could always get his arguments heard, in which he could always make those who have the responsibility of action think of them before they acted--in which he could know that the schemes which he had set at work in the world were not the casual accidents of an individual idiosyncrasy, which are mostly much wrong, but the likeliest of all things to be right--the ideas of one very intelligent man at last accepted and acted on by the ordinary intelligent many. But can we expect such a king, or, for that is the material point, can we expect a lineal series of such kings? Every one has heard the reply of the Emperor Alexander to Madame de Stael, who favoured him with a declamation in praise of beneficent despotism. "Yes, Madame, but it is only a happy accident." He well knew that the great abilities and the good intentions necessary to make an efficient and good despot never were continuously combined in any line of rulers. He knew that they were far out of reach of hereditary human nature. Can it be said that the characteristic qualities of a constitutional monarch are more within its reach? I am afraid it cannot. We found just now that the characteristic use of an hereditary constitutional monarch, at the outset of an administration, greatly surpassed the ordinary competence of hereditary faculties. I fear that an impartial investigation will establish the same conclusion as to his uses during the continuance of an administration. If we look at history, we shall find that it is only during the period of the present reign that in England the duties of a constitutional sovereign have ever been well performed. The first two Georges were ignorant of English affairs, and wholly unable to guide them, whether well or ill; for many years in their time the Prime Minister had, over and above the labour of managing Parliament, to manage the woman--sometimes the queen, sometimes the mistress--who managed the sovereign; George III. interfered unceasingly, but he did harm unceasingly; George IV. and William IV. gave no steady continuing guidance, and were unfit to give it. On the Continent, in first-class countries, constitutional royalty has never lasted out of one generation. Louis Philippe, Victor Emmanuel, and Leopold are the founders of their dynasties; we must not reckon in constitutional monarchy any more than in despotic monarchy on the permanence in the descendants of the peculiar genius which founded the race. As far as experience goes, there is no reason to expect an hereditary series of useful limited monarchs. If we look to theory, there is even less reason to expect it. A monarch is useful when he gives an effectual and beneficial guidance to his Ministers. But these Ministers are sure to be among the ablest men of their time. They will have had to conduct the business of Parliament so as to satisfy it; they will have to speak so as to satisfy it. The two together cannot be done save by a man of very great and varied ability. The exercise of the two gifts is sure to teach a man much of the world; and if it did not, a Parliamentary leader has to pass through a magnificent training before he becomes a leader. He has to gain a seat in Parliament; to gain the ear of Parliament; to gain the confidence of Parliament; to gain the confidence of his colleagues. No one can achieve these--no one, still more, can both achieve them and retain them--without a singular ability, nicely trained in the varied detail of life. What chance has an hereditary monarch such as nature forces him to be, such as history shows he is, against men so educated and so born? He can but be an average man to begin with; sometimes he will be clever, but sometimes he will be stupid; in the long run he will be neither clever nor stupid; he will be the simple, common man who plods the plain routine of life from the cradle to the grave. His education will be that of one who has never had to struggle; who has always felt that he has nothing to gain; who has had the first dignity given him; who has never seen common life as in truth it is. It is idle to expect an ordinary man born in the purple to have greater genius than an extraordinary man born out of the purple; to expect a man whose place has always been fixed to have a better judgment than one who has lived by his judgment; to expect a man whose career will be the same whether he is discreet or whether he is indiscreet to have the nice discretion of one who has risen by his wisdom, who will fall if he ceases to be wise. The characteristic advantage of a constitutional king is the permanence of his place. This gives him the opportunity of acquiring a consecutive knowledge of complex transactions, but it gives only an opportunity. The king must use it. There is no royal road to political affairs: their detail is vast, disagreeable, complicated, and miscellaneous. A king, to be the equal of his Ministers in discussion, must work as they work; he must be a man of business as they are men of business. Yet a constitutional prince is the man who is most tempted to pleasure, and the least forced to business. A despot must feel that he is the pivot of the State. The stress of his kingdom is upon him. As he is, so are his affairs. He may be seduced into pleasure; he may neglect all else; but the risk is evident. He will hurt himself; he may cause a revolution. If he becomes unfit to govern, some one else who is fit may conspire against him. But a constitutional king need fear nothing. He may neglect his duties, but he will not be injured. His place will be as fixed, his income as permanent, his opportunities of selfish enjoyment as full as ever. Why should he work? It is true he will lose the quiet and secret influence which in the course of years industry would gain for him; but an eager young man, on whom the world is squandering its luxuries and its temptations, will not be much attracted by the distant prospect of a moderate influence over dull matters. He may form good intentions; he may say, "Next year I WILL read these papers; I will try and ask more questions; I will not let these women talk to me so". But they will talk to him. The most hopeless idleness is that most smoothed with excellent plans. "The Lord Treasurer," says Swift, "promised he will settle it to-night, and so he will say a hundred nights." We may depend upon it the ministry whose power will be lessened by the prince's attention will not be too eager to get him to attend. So it is if the prince come young to the throne; but the case is worse when he comes to it old or middle-aged. He is then unfit to work. He will then have spent the whole of youth and the first part of manhood in idleness, and it is unnatural to expect him to labour. A pleasure-loving lounger in middle life will not begin to work as George III. worked, or as Prince Albert worked. The only fit material for a constitutional king is a prince who begins early to reign--who in his youth is superior to pleasure--who in his youth is willing to labour--who has by nature a genius for discretion. Such kings are among God's greatest gifts, but they are also among His rarest. An ordinary idle king on a constitutional throne will leave no mark on his time: he will do little good and as little harm; the royal form of Cabinet government will work in his time pretty much as the unroyal. The addition of a cypher will not matter though it take precedence of the significant figures. But corruptio optimi pessima. The most evil case of the royal form is far worse than the most evil case of the unroyal. It is easy to imagine, upon a constitutional throne, an active and meddling fool who always acts when he should not, who never acts when he should, who warns his Ministers against their judicious measures, who encourages them in their injudicious measures. It is easy to imagine that such a king should be the tool of others; that favourites should guide him; that mistresses should corrupt him; that the atmosphere of a bad Court should be used to degrade free government. We have had an awful instance of the dangers of constitutional royalty. We have had the case of a meddling maniac. During great part of his life George III.'s reason was half upset by every crisis. Throughout his life he had an obstinacy akin to that of insanity. He was an obstinate and an evil influence; he could not be turned from what was inexpedient; by the aid of his station he turned truer but weaker men from what was expedient. He gave an excellent moral example to his contemporaries, but he is an instance of those whose good dies with them, while their evil lives after them. He prolonged the American War, perhaps he caused the American War, so we inherit the vestiges of an American hatred; he forbade Mr. Pitt's wise plans, so we inherit an Irish difficulty. He would not let us do right in time, so now our attempts at right are out of time and fruitless. Constitutional royalty under an active and half-insane king is one of the worst of Governments. There is in it a secret power which is always eager, which is generally obstinate, which is often wrong, which rules Ministers more than they know themselves, which overpowers them much more than the public believe, which is irresponsible because it is inscrutable, which cannot be prevented because it cannot be seen. The benefits of a good monarch are almost invaluable, but the evils of a bad monarch are almost irreparable. We shall find these conclusions confirmed if we examine the powers and duties of an English monarch at the break-up of an administration. But the power of dissolution and the prerogative of creating peers, the cardinal powers of that moment are too important and involve too many complex matters to be sufficiently treated at the very end of a paper as long as this. NO. IV. THE HOUSE OF LORDS. In my last essay I showed that it was possible for a constitutional monarch to be, when occasion served, of first-rate use both at the outset and during the continuance of an administration; but that in matter of fact it was not likely that he would be useful. The requisite ideas, habits, and faculties, far surpass the usual competence of an average man, educated in the common manner of sovereigns. The same arguments are entirely applicable at the close of an administration. But at that conjuncture the two most singular prerogatives of an English king--the power of creating new peers and the power of dissolving the Commons--come into play; and we cannot duly criticise the use or misuse of these powers till we know what the peers are and what the House of Commons is. The use of the House of Lords or, rather, of the Lords, in its dignified capacity--is very great. It does not attract so much reverence as the Queen, but it attracts very much. The office of an order of nobility is to impose on the common people--not necessarily to impose on them what is untrue, yet less what is hurtful; but still to impose on their quiescent imaginations what would not otherwise be there. The fancy of the mass of men is incredibly weak; it can see nothing without a visible symbol, and there is much that it can scarcely make out with a symbol. Nobility is the symbol of mind. It has the marks from which the mass of men always used to infer mind, and often still infer it. A common clever man who goes into a country place will get no reverence; but the "old squire" will get reverence. Even after he is insolvent, when every one knows that his ruin is but a question of time, he will get five times as much respect from the common peasantry as the newly-made rich man who sits beside him. The common peasantry will listen to his nonsense more submissively than to the new man's sense. An old lord will get infinite respect. His very existence is so far useful that it awakens the sensation of obedience to a sort of mind in the coarse, dull, contracted multitude, who could neither appreciate nor perceive any other. The order of nobility is of great use, too, not only in what it creates, but in what it prevents. It prevents the rule of wealth--the religion of gold. This is the obvious and natural idol of the Anglo-Saxon. He is always trying to make money; he reckons everything in coin; he bows down before a great heap and sneers as he passes a little heap. He has a "natural instinctive admiration of wealth for its own sake". And within good limits the feeling is quite right. So long as we play the game of industry vigorously and eagerly (and I hope we shall long play it, for we must be very different from what we are if we do anything better), we shall of necessity respect and admire those who play successfully, and a little despise those who play unsuccessfully. Whether this feeling be right or wrong, it is useless to discuss; to a certain degree, it is involuntary; it is not for mortals to settle whether we will have it or not; nature settles for us that, within moderate limits, we must have it. But the admiration of wealth in many countries goes far beyond this; it ceases to regard in any degree the skill of acquisition; it respects wealth in the hands of the inheritor just as much as in the hands of the maker; it is a simple envy and love of a heap of gold as a heap of gold. From this our aristocracy preserves us. There is no country where a "poor devil of a millionaire is so ill off as in England". The experiment is tried every day, and every day it is proved that money alone--money pur et simple--will not buy "London Society". Money is kept down, and, so to say, cowed by the predominant authority of a different power. But it may be said that this is no gain; that worship for worship, the worship of money is as good as the worship of rank. Even granting that it were so, it is a great gain to society to have two idols: in the competition of idolatries the true worship gets a chance. But it is not true that the reverence for rank--at least, for hereditary rank--is as base as the reverence for money. As the world has gone, manner has been half-hereditary in certain castes, and manner is one of the fine arts. It is the STYLE of society; it is in the daily-spoken intercourse of human beings what the art of literary expression is in their occasional written intercourse. In reverencing wealth we reverence not a man, but an appendix to a man; in reverencing inherited nobility, we reverence the probable possession of a great faculty--the faculty of bringing out what is in one. The unconscious grace of life MAY be in the middle classes: finely-mannered persons are born everywhere; but it OUGHT to be in the aristocracy: and a man must be born with a hitch in his nerves if he has not some of it. It is a physiological possession of the race, though it is sometimes wanting in the individual. There is a third idolatry from which that of rank preserves us, and perhaps it is the worst of any--that of office. The basest deity is a subordinate employee, and yet just now in civilised Governments it is the commonest. In France and all the best of the Continent it rules like a superstition. It is to no purpose that you prove that the pay of petty officials is smaller than mercantile pay; that their work is more monotonous than mercantile work; that their mind is less useful and their life more tame. They are still thought to be greater and better. They are decords; they have a little red on the left breast of their coat, and no argument will answer that. In England, by the odd course of our society, what a theorist would desire has in fact turned up. The great offices, whether permanent or Parliamentary, which require mind now give social prestige, and almost only those. An Under-Secretary of State with 2000 pounds a year is a much stronger man than the director of a finance company with 5000 pounds, and the country saves the difference. But except in a few offices like the Treasury, which were once filled with aristocratic people, and have an odour of nobility at second-hand, minor place is of no social use. A big grocer despises the exciseman; and what in many countries would be thought impossible, the exciseman envies the grocer. Solid wealth tells where there is no artificial dignity given to petty public functions. A clerk in the public service is "nobody"; and you could not make a common Englishman see why he should be anybody. But it must be owned that this turning of society into a political expedient has half spoiled it. A great part of the "best" English people keep their mind in a state of decorous dulness. They maintain their dignity; they get obeyed; they are good and charitable to their dependants. But they have no notion of PLAY of mind: no conception that the charm of society depends upon it. They think cleverness an antic, and have a constant though needless horror of being thought to have any of it. So much does this stiff dignity give the tone, that the few Englishmen capable of social brilliancy mostly secrete it. They reserve it for persons whom they can trust, and whom they know to be capable of appreciating its nuances. But a good Government is well worth a great deal of social dulness. The dignified torpor of English society is inevitable if we give precedence, not to the cleverest classes, but to the oldest classes, and we have seen how useful that is. The social prestige of the aristocracy is, as every one knows, immensely less than it was a hundred years or even fifty years since. Two great movements--the two greatest of modern society--have been unfavourable to it. The rise of industrial wealth in countless forms has brought in a competitor which has generally more mind, and which would be supreme were it not for awkwardness and intellectual gene. Every day our companies, our railways, our debentures, and our shares, tend more and more to multiply these SURROUNDINGS of the aristocracy, and in time they will hide it. And while this undergrowth has come up, the aristocracy have come down. They have less means of standing out than they used to have. Their power is in their theatrical exhibition, in their state. But society is every day becoming less stately. As our great satirist has observed, "The last Duke of St. David's used to cover the north road with his carriages; landladies and waiters bowed before him. The present Duke sneaks away from a railway station, smoking a cigar, in a brougham." The aristocracy cannot lead the old life if they would; they are ruled by a stronger power. They suffer from the tendency of all modern society to raise the average, and to lower--comparatively, and perhaps absolutely, to lower--the summit. As the picturesqueness, the featureliness, of society diminishes, aristocracy loses the single instrument of its peculiar power. If we remember the great reverence which used to be paid to nobility as such, we shall be surprised that the House of Lords as an assembly, has always been inferior; that it was always just as now, not the first, but the second of our assemblies. I am not, of course, now speaking of the middle ages: I am not dealing with the embryo or the infant form of our Constitution; I am only speaking of its adult form. Take the times of Sir R. Walpole. He was Prime Minister because he managed the House of Commons; he was turned out because he was beaten on an election petition in that House; he ruled England because he ruled that House. Yet the nobility were then the governing power in England. In many districts the word of some lord was law. The "wicked Lord Lowther," as he was called, left a name of terror in Westmoreland during the memory of men now living. A great part of the borough members and a great part of the county members were their nominees; an obedient, unquestioning deference was paid them. As individuals the peers were the greatest people; as a House the collected peers were but the second House. Several causes contributed to create this anomaly, but the main cause was a natural one. The House of Peers has never been a House where the most important peers were most important. It could not be so. The qualities which fit a man for marked eminence, in a deliberative assembly, are not hereditary, and are not coupled with great estates. In the nation, in the provinces, in his own province, a Duke of Devonshire, or a Duke of Bedford, was a much greater man than Lord Thurlow. They had great estates, many boroughs, innumerable retainers, followings like a Court. Lord Thurlow had no boroughs, no retainers; he lived on his salary. Till the House of Lords met, the dukes were not only the greatest, but immeasurably the greatest. But as soon as the House met, Lord Thurlow became the greatest. He could speak, and the others could not speak. He could transact business in half an hour which they could not have transacted in a day, or could not have transacted at all. When some foolish peer, who disliked his domination, sneered at his birth, he had words to meet the case: he said it was better for any one to owe his place to his own exertions than to owe it to descent, to being the "accident of an accident". But such a House as this could not be pleasant to great noblemen. They could not like to be second in their own assembly (and yet that was their position from age to age) to a lawyer who was of yesterday,--whom everybody could remember without briefs, who had talked for "hire," who had "hungered after six-and-eightpence". Great peers did not gain glory from the House; on the contrary, they lost glory when they were in the House. They devised two expedients to get out of this difficulty: they invented proxies which enabled them to vote without being present, without being offended by vigour and invective, without being vexed by ridicule, without leaving the rural mansion or the town palace where they were demigods. And what was more effectual still, they used their influence in the House of Commons instead of the House of Lords. In that indirect manner a rural potentate, who half returned two county members, and wholly returned two borough members, who perhaps gave seats to members of the Government, who possibly seated the leader of the Opposition, became a much greater man than by sitting on his own bench, in his own House, hearing a Chancellor talk. The House of Lords was a second-rate force, even when the peers were a first-rate force, because the greatest peers, those who had the greatest social importance, did not care for their own House, or like it, but gained great part of their political power by a hidden but potent influence in the competing House. When we cease to look at the House of Lords under its dignified aspect, and come to regard it under its strictly useful aspect, we find the literary theory of the English Constitution wholly wrong, as usual. This theory says that the House of Lords is a co-ordinate estate of the realm, of equal rank with the House of Commons; that it is the aristocratic branch, just as the Commons is the popular branch; and that by the principle of our Constitution the aristocratic branch has equal authority with the popular branch. So utterly false is this doctrine that it is a remarkable peculiarity, a capital excellence of the British Constitution, that it contains a sort of Upper House, which is not of equal authority to the Lower House, yet still has some authority. The evil of two co-equal Houses of distinct natures is obvious. Each House can stop all legislation, and yet some legislation may be necessary. At this moment we have the best instance of this which could be conceived. The Upper House of our Victorian Constitution, representing the rich wool-growers, has disagreed with the Lower Assembly, and most business is suspended. But for a most curious stratagem, the machine of Government would stand still. Most Constitutions have committed this blunder. The two most remarkable Republican institutions in the world commit it. In both the American and the Swiss Constitutions the Upper House has as much authority as the second: it could produce the maximum of impediment--the dead-lock, if it liked; if it does not do so, it is owing not to the goodness of the legal constitution, but to the discreetness of the members of the Chamber. In both these Constitutions, this dangerous division is defended by a peculiar doctrine with which I have nothing to do now. It is said that there must be in a Federal Government some institution, some authority, some body possessing a veto in which the separate States composing the Confederation are all equal. I confess this doctrine has to me no self-evidence, and it is assumed, but not proved. The State of Delaware is NOT equal in power or influence to the State of New York, and you cannot make it so by giving it an equal veto in an Upper Chamber. The history of such an institution is indeed most natural. A little State will like, and must like, to see some token, some memorial mark of its old independence preserved in the Constitution by which that independence is extinguished. But it is one thing for an institution to be natural, and another for it to be expedient. If indeed it be that a Federal Government compels the erection of an Upper Chamber of conclusive and co-ordinate authority, it is one more in addition to the many other inherent defects of that kind of Government. It may be necessary to have the blemish, but it is a blemish just as much. There ought to be in every Constitution an available authority somewhere. The sovereign power must be come-at-able. And the English have made it so. The House of Lords, at the passing of the Reform Act of 1832, was as unwilling to concur with the House of Commons as the Upper Chamber at Victoria to concur with the Lower Chamber. But it did concur. The Crown has the authority to create new peers; and the king of the day had promised the Ministry of the day to create them. The House of Lords did not like the precedent, and they passed the bill. The power was not used, but its existence was as useful as its energy. Just as the knowledge that his men CAN strike makes a master yield in order that they may not strike, so the knowledge that their House could be swamped at the will of the king--at the will of the people--made the Lords yield to the people. From the Reform Act the function of the House of Lords has been altered in English history. Before that Act it was, if not a directing Chamber, at least a Chamber of Directors. The leading nobles, who had most influence in the Commons, and swayed the Commons, sat there. Aristocratic influence was so powerful in the House of Commons, that there never was any serious breach of unity. When the Houses quarrelled, it was as in the great Aylesbury case, about their respective privileges, and not about the national policy. The influence of the nobility was then so potent, that it was not necessary to exert it. The English Constitution, though then on this point very different from what it now is, did not even then contain the blunder of the Victorian or of the Swiss Constitution. It had not two Houses of distinct origin; it had two Houses of common origin--two Houses in which the predominant element was the same. The danger of discordance was obviated by a latent unity. Since the Reform Act the House of Lords has become a revising and suspending House. It can alter bills; it can reject bills on which the House of Commons is not yet thoroughly in earnest--upon which the nation is not yet determined. Their veto is a sort of hypothetical veto. They say, We reject your Bill for this once or these twice, or even these thrice: but if you keep on sending it up, at last we won't reject it. The House has ceased to be one of latent directors, and has become one of temporary rejectors and palpable alterers. It is the sole claim of the Duke of Wellington to the name of a statesman, that he presided over this change. He wished to guide the Lords to their true position, and he did guide them. In 1846, in the crisis of the Corn-Law struggle, and when it was a question whether the House of Lords should resist or yield, he wrote a very curious letter to the late Lord Derby:-- "For many years, indeed from the year 1830, when I retired from office, I have endeavoured to manage the House of Lords upon the principle on which I conceive that the institution exists in the Constitution of the country, that of Conservatism. I have invariably objected to all violent and extreme measures, which is not exactly the mode of acquiring influence in a political party in England, particularly one in opposition to Government. I have invariably supported Government in Parliament upon important occasions, and have always exercised my personal influence to prevent the mischief of anything like a difference or division between the two Houses,--of which there are some remarkable instances, to which I will advert here, as they will tend to show you the nature of my management, and possibly, in some degree, account for the extraordinary power which I have for so many years exercised, without any apparent claim to it." Upon finding the difficulties in which the late King William was involved by a promise made to create peers, the number, I believe, indefinite, I determined myself, and I prevailed upon others, the number very large, to be absent from the House in the discussion of the last stages of the Reform Bill, after the negotiations had failed for the formation of a new administration. This course gave at the time great dissatisfaction to the party; notwithstanding that I believe it saved the existence of the House of Lords at the time, and the Constitution of the country. "Subsequently, throughout the period from 1835 to 1841, I prevailed upon the House of Lords to depart from many principles and systems which they as well as I had adopted and voted on Irish tithes, Irish corporations, and other measures, much to the vexation and annoyance of many. But I recollect one particular measure, the union of the provinces of Upper and Lower Canada, in the early stages of which I had spoken in opposition to the measure, and had protested against it; and in the last stages of it I prevailed upon the House to agree to, and pass it, in order to avoid the injury to the public interests of a dispute between the Houses upon a question of such importance. Then I supported the measures of the Government, and protected the servant of the Government, Captain Elliot, in China. All of which tended to weaken my influence with some of the party; others, possibly a majority, might have approved of the course which I took. It was at the same time well known that from the commencement at least of Lord Melbourne's Government, I was in constant communication with it, upon all military matters, whether occurring at home or abroad, at all events. But likewise upon many others." "All this tended of course to diminish my influence in the Conservative party, while it tended essentially to the ease and satisfaction of the sovereign, and to the maintenance of good order. At length came the resignation of the Government by Sir Robert Peel, in the month of December last, and the Queen desiring Lord John Russell to form an administration. On the 12th of December the Queen wrote to me the letter of which I enclose the copy, and the copy of my answer of the same date; of which it appears that you have never seen copies, although I communicated them immediately to Sir Robert Peel. It was impossible for me to act otherwise than is indicated in my letter to the Queen. I am the servant of the Crown and people. I have been paid and rewarded, and I consider myself retained; and that I can't do otherwise than serve as required, when I can do so without dishonour, that is to say, as long as I have health and strength to enable me to serve. But it is obvious that there is, and there must be, an end of all connection and counsel between party and me. I might with consistency, and some may think that I ought to have declined to belong to Sir Robert Peel's Cabinet on the night of the 20th of December. But my opinion is, that if I had, Sir Robert Peel's Government would not have been framed; that we should have had ---- and ---- in office next morning. "But, at all events, it is quite obvious that when that arrangement comes, which sooner or later must come, there will be an end to all influence on my part over the Conservative party, if I should be so indiscreet as to attempt to exercise any. You will see, therefore, that the stage is quite clear for you, and that you need not apprehend the consequences of differing in opinion from me when you will enter upon it; as in truth I have, by my letter to the Queen of the 12th of December, put an end to the connection between the party and me, when the party will be in opposition to her Majesty's Government." "My opinion is, that the great object of all is that you should assume the station, and exercise the influence, which I have so long exercised in the House of Lords. The question is, how is that object to be attained? By guiding their opinion and decision, or by following it? You will see that I have endeavoured to guide their opinion, and have succeeded upon some most remarkable occasions. But it has been by a good deal of management. "Upon the important occasion and question now before the House, I propose to endeavour to induce them to avoid to involve the country in the additional difficulties of a difference of opinion, possibly a dispute between the Houses, on a question in the decision of which it has been frequently asserted that their lordships had a personal interest; which assertion, however false as affecting each of them personally, could not be denied as affecting the proprietors of land in general. I am aware of the difficulty, but I don't despair of carrying the bill through. You must be the best judge of the course which you ought to take, and of the course most likely to conciliate the confidence of the House of Lords. My opinion is, that you should advise the House to vote that which would tend most to public order, and would be most beneficial to the immediate interests of the country." This is the mode in which the House of Lords came to be what it now is, a chamber with (in most cases) a veto of delay with (in most cases) a power of revision, but with no other rights or powers. The question we have to answer is, "The House of Lords being such, what is the use of the Lords?" The common notion evidently fails, that it is a bulwark against imminent revolution. As the duke's letter in every line evinces, the wisest members, the guiding members of the House, know that the House must yield to the people if the people is determined. The two cases--that of the Reform Act and the Corn Laws--were decisive cases. The great majority of the Lords thought Reform revolution, Free-trade confiscation, and the two together ruin. If they could ever have been trusted to resist the people, they would then have resisted it. But in truth it is idle to expect a second chamber--a chamber of notables--ever to resist a popular chamber, a nation's chamber, when that chamber is vehement and the nation vehement too. There is no strength in it for that purpose. Every class chamber, every minority chamber, so to speak, feels weak and helpless when the nation is excited. In a time of revolution there are but two powers, the sword and the people. The executive commands the sword; the great lesson which the First Napoleon taught the Parisian populace--the contribution he made to the theory of revolutions at the 18th Brumaire--is now well known. Any strong soldier at the head of the army can use the army. But a second chamber cannot use it. It is a pacific assembly composed of timid peers, aged lawyers, or, as abroad, clever litterateurs. Such a body has no force to put down the nation, and if the nation will have it do something it must do it. The very nature, too, as has been seen, of the Lords in the English Constitution, shows that it cannot stop revolution. The Constitution contains an exceptional provision to prevent it stopping it. The executive, the appointee of the popular chamber and the nation, can make new peers, and so create a majority in the peers; it can say to the Lords, "Use the powers of your House as we like, or you shall not use them at all. We will find others to use them; your virtue shall go out of you if it is not used as we like, and stopped when we please." An assembly under such a threat cannot arrest, and could not be intended to arrest, a determined and insisting executive. In fact the House of Lords, as a House, is not a bulwark that will keep out revolution, but an index that revolution is unlikely. Resting as it does upon old deference, and inveterate homage, it shows that the spasm of new forces, the outbreak of new agencies, which we call revolution, is for the time simply impossible. So long as many old leaves linger on the November trees, you know that there has been little frost and no wind; just so while the House of Lords retains much power, you may know that there is no desperate discontent in the country, no wild agency likely to cause a great demolition. There used to be a singular idea that two chambers--a revising chamber and a suggesting chamber--were essential to a free Government. The first person who threw a hard stone--an effectually hitting stone--against the theory was one very little likely to be favourable to democratic influence, or to be blind to the use of aristocracy; it was the present Lord Grey. He had to look at the matter practically. He was the first great Colonial Minister of England who ever set himself to introduce representative institutions into ALL her capable colonies, and the difficulty stared him in the face that in those colonies there were hardly enough good people for one assembly, and not near enough good people for two assemblies. It happened--and most naturally happened--that a second assembly was mischievous. The second assembly was either the nominee of the Crown, which in such places naturally allied itself with better instructed minds, or was elected by people with a higher property qualification--some peculiarly well-judging people. Both these choosers choose the best men in the colony, and put them into the second assembly. But thus the popular assembly was left without those best men. The popular assembly was denuded of those guides and those leaders who would have led and guided it best. Those superior men were put aside to talk to one another, and perhaps dispute with one another; they were a concentrated instance of high but neutralised forces. They wished to do good, but they could do nothing. The Lower House, with all the best people in the colony extracted, did what it liked. The democracy was strengthened rather than weakened by the isolation of its best opponents in a weak position. As soon as experience had shown this, or seemed to show it, the theory that two chambers were essential to a good and free Government vanished away. With a perfect Lower House it is certain that an Upper House would be scarcely of any value. If we had an ideal House of Commons perfectly representing the nation, always moderate, never passionate, abounding in men of leisure, never omitting the slow and steady forms necessary for good consideration, it is certain that we should not need a higher chamber. The work would be done so well that we should not want any one to look over or revise it. And whatever is unnecessary in Government is pernicious. Human life makes so much complexity necessary that an artificial addition is sure to do harm: you cannot tell where the needless bit of machinery will catch and clog the hundred needful wheels; but the chances are conclusive that it will impede them some where, so nice are they and so delicate. But though beside an ideal House of Commons the Lords would be unnecessary, and therefore pernicious, beside the actual House a revising and leisured legislature is extremely useful, if not quite necessary. At present the chance majorities on minor questions in the House of Commons are subject to no effectual control. The nation never attends to any but the principal matters of policy and State. Upon these it forms that rude, rough, ruling judgment which we call public opinion; but upon other things it does not think at all, and it would be useless for it to think. It has not the materials for forming a judgment: the detail of bills, the instrumental part of policy, the latent part of legislation, are wholly out of its way. It knows nothing about them, and could not find time or labour for the careful investigation by which alone they can be apprehended. A casual majority of the House of Commons has therefore dominant power: it can legislate as it wishes. And though the whole House of Commons upon great subjects very fairly represents public opinion, and though its judgment upon minor questions is, from some secret excellencies in its composition, remarkably sound and good; yet, like all similar assemblies, it is subject to the sudden action of selfish combinations. There are said to be 200 "members for the railways" in the present Parliament. If these 200 choose to combine on a point which the public does not care for, and which they care for because it affects their purse, they are absolute. A formidable sinister interest may always obtain the complete command of a dominant assembly by some chance and for a moment, and it is therefore of great use to have a second chamber of an opposite sort, differently composed, in which that interest in all likelihood will not rule. The most dangerous of all sinister interests is that of the executive Government, because it is the most powerful. It is perfectly possible--it has happened and will happen again--that the Cabinet, being very powerful in the Commons, may inflict minor measures on the nation which the nation did not like, but which it did not understand enough to forbid. If, therefore, a tribunal of revision can be found in which the executive, though powerful, is less powerful, the Government will be the better; the retarding chamber will impede minor instances of Parliamentary tyranny, though it will not prevent or much impede revolution. Every large assembly is, moreover, a fluctuating body; it is not one house, so to say, but a set of houses; it is one set of men to-night and another to-morrow night. A certain unity is doubtless preserved by the duty which the executive is supposed to undertake, and does undertake, of keeping a house; a constant element is so provided about which all sorts of variables accumulate and pass away. But even after due allowance for the full weight of this protective machinery, our House of Commons is, as all such chambers must be, subject to sudden turns and bursts of feeling, because the members who compose it change from time to time. The pernicious result is perpetual in our legislation; many Acts of Parliament are medleys of different motives, because the majority which passed one set of its clauses is different from that which passed another set. But the greatest defect of the House of Commons is that it has no leisure. The life of the House is the worst of all lives--a life of distracting routine. It has an amount of business brought before it such as no similar assembly ever has had. The British Empire is a miscellaneous aggregate, and each bit of the aggregate brings its bit of business to the House of Commons. It is India one day and Jamaica the next; then again China, and then Schleswig-Holstein. Our legislation touches on all subjects, because our country contains all ingredients. The mere questions which are asked of the Ministers run over half human affairs; the Private Bill Acts, the mere privilegia of our Government--subordinate as they ought to be--probably give the House of Commons more absolute work than the whole business, both national and private, of any other assembly which has ever sat. The whole scene is so encumbered with changing business, that it is hard to keep your head in it. Whatever, too, may be the case hereafter, when a better system has been struck out, at present the House does all the work of legislation, all the detail, and all the clauses itself. One of the most helpless exhibitions of helpless ingenuity and wasted mind is a committee of the whole House on a bill of many clauses which eager enemies are trying to spoil, and various friends are trying to mend. An Act of Parliament is at least as complex as a marriage settlement; and it is made much as a settlement would be if it were left to the vote and settled by the major part of persons concerned, including the unborn children. There is an advocate for every interest, and every interest clamours for every advantage. The executive Government by means of its disciplined forces, and the few invaluable members who sit and think, preserves some sort of unity. But the result is very imperfect. The best test of a machine is the work it turns out. Let any one who knows what legal documents ought to be, read first a will he has just been making and then an Act of Parliament; he will certainly say, "I would have dismissed my attorney if he had done my business as the legislature has done the nation's business". While the House of Commons is what it is, a good revising, regulating and retarding House would be a benefit of great magnitude. But is the House of Lords such a chamber? Does it do this work? This is almost an undiscussed question. The House of Lords, for thirty years at least, has been in popular discussion an accepted matter. Popular passion has not crossed the path, and no vivid imagination has been excited to clear the matter up. The House of Lords has the greatest merit which such a chamber can have; it is POSSIBLE. It is incredibly difficult to get a revising assembly, because it is difficult to find a class of respected revisers. A federal senate, a second House, which represents State unity, has this advantage; it embodies a feeling at the root of society--a feeling which is older than complicated politics, which is stronger a thousand times over than common political feelings--the local feeling. "My shirt," said the Swiss state-right patriot, "is dearer to me than my coat." Every State in the American Union would feel that disrespect to the Senate was disrespect to itself. Accordingly, the Senate is respected; whatever may be the merits or demerits of its action, it can act; it is real, independent, and efficient. But in common Governments it is fatally difficult to make an UNpopular entity powerful in a popular Government. It is almost the same thing to say that the House of Lords is independent. It would not be powerful, it would not be possible, unless it were known to be independent. The Lords are in several respects more independent than the Commons; their judgment may not be so good a judgment, but it is emphatically their own judgment. The House of Lords, as a body, is accessible to no social bribe. And this, in our day, is no light matter. Many members of the House of Commons, who are to be influenced by no other manner of corruption, are much influenced by this its most insidious sort. The conductors of the press and the writers for it are worse--at least the more influential who come near the temptation; for "position," as they call it, for a certain intimacy with the aristocracy, some of them would do almost anything and say almost anything. But the Lords are those who give social bribes, and not those who take them. They are above corruption because they are the corruptors. They have no constituency to fear or wheedle; they have the best means of forming a disinterested and cool judgment of any class in the country. They have, too, leisure to form it. They have no occupations to distract them which are worth the name. Field sports are but playthings, though some lords put an Englishman's seriousness into them. Few Englishmen can bury themselves in science or literature; and the aristocracy have less, perhaps, of that impetus than the middle classes. Society is too correct and dull to be an occupation, as in other times and ages it has been. The aristocracy live in the fear of the middle classes--of the grocer and the merchant. They dare not frame a society of enjoyment as the French aristocracy once formed it. Politics are the only occupation a peer has worth the name. He may pursue them undistractedly. The House of Lords, besides independence to revise judicially and position to revise effectually, has leisure to revise intellectually. These are great merits: and, considering how difficult it is to get a good second chamber, and how much with our present first chamber we need a second, we may well be thankful for them. But we must not permit them to blind our eyes. Those merits of the Lords have faults close beside them which go far to make them useless. With its wealth, its place, and its leisure, the House of Lords would, on the very surface of the matter, rule us far more than it does if it had not secret defects which hamper and weaken it. The first of these defects is hardly to be called secret, though, on the other hand, it is not well known. A severe though not unfriendly critic of our institutions said that "the cure for admiring the House of Lords was to go and look at it"--to look at it not on a great party field-day, or at a time of parade, but in the ordinary transaction of business. There are perhaps ten peers in the House, possibly only six; three is the quorum for transacting business. A few more may dawdle in or not dawdle in: those are the principal speakers, the lawyers (a few years ago when Lyndhurst, Brougham, and Campbell were in vigour, they were by far the predominant talkers) and a few statesmen whom every one knows. But the mass of the House is nothing. This is why orators trained in the Commons detest to speak in the Lords. Lord Chatham used to call it the "Tapestry". The House of Commons is a scene of life if ever there was a scene of life. Every member in the throng, every atom in the medley, has his own objects (good or bad), his own purposes (great or petty); his own notions, such as they are, of what is; his own notions, such as they are, of what ought to be. There is a motley confluence of vigorous elements, but the result is one and good. There is a "feeling of the House," a "sense" of the House, and no one who knows anything of it can despise it. A very shrewd man of the world went so far as to say that "the House of Commons has more sense than any one in it". But there is no such "sense" in the House of Lords, because there is no life. The Lower Chamber is a chamber of eager politicians; the Upper (to say the least) of not eager ones. This apathy is not, indeed, as great as the outside show would indicate. The committees of the Lords (as is well known) do a great deal of work and do it very well. And such as it is, the apathy is very natural. A House composed of rich men who can vote by proxy without coming will not come very much.[5] But after every abatement the real indifference to their duties of most peers is a great defect, and the apparent indifference is a dangerous defect. As far as politics go there is profound truth in Lord Chesterfield's axiom, that "the world must judge of you by what you seem, not by what you are". The world knows what you seem; it does not know what you are. An assembly--a revising assembly especially--which does not assemble, which looks as if it does not care how it revises, is defective in a main political ingredient. It may be of use, but it will hardly convince mankind that it is so. [5] In accordance with a recent resolution of the House of Lords proxies are now disused.--Note to second edition. The next defect is even more serious: it affects not simply the apparent work of the House of Lords but the real work. For a revising legislature, it is too uniformly made up. Errors are of various kinds; but the constitution of the House of Lords only guards against a single error--that of too quick change. The Lords--leaving out a few lawyers and a few outcasts--are all landowners of more or less wealth. They all have more or less the opinions, the merits, the faults of that one class. They revise legislation, as far as they do revise it, exclusively according to the supposed interests, the predominant feelings, the inherited opinions, of that class. Since the Reform Act, this uniformity of tendency has been very evident. The Lords have felt--it would be harsh to say hostile, but still dubious, as to the new legislation. There was a spirit in it alien to their spirit, and which when they could they have tried to cast out. That spirit is what has been termed the "modern spirit". It is not easy to concentrate its essence in a phrase; it lives in our life, animates our actions, suggests our thoughts. We all know what it means, though it would take an essay to limit it and define it. To this the Lords object; wherever it is concerned, they are not impartial revisers, but biassed revisers. This singleness of composition would be no fault; it would be, or might be, even a merit, if the criticism of the House of Lords, though a suspicious criticism, were yet a criticism of great understanding. The characteristic legislation of every age must have characteristic defects; it is the outcome of a character, of necessity faulty and limited. It must mistake some kind of things; it must overlook some other. If we could get hold of a complemental critic, a critic who saw what the age did not see, and who saw rightly what the age mistook, we should have a critic of inestimable value. But is the House of Lords that critic? Can it be said that its unfriendliness to the legislation of the age is founded on a perception of what the age does not see, and a rectified perception of what the age does see? The most extreme partisan, the most warm admirer of the Lords, if of fair and tempered mind, cannot say so. The evidence is too strong. On free trade, for example, no one can doubt that the Lords--in opinion, in what they wished to do, and would have done, if they had acted on their own minds--were utterly wrong. This is the clearest test of the "modern spirit". It is easier here to be sure it is right than elsewhere. Commerce is like war; its result is patent. Do you make money or do you not make it? There is as little appeal from figures as from battle. Now no one can doubt that England is a great deal better off because of free trade; that it has more money, and that its money is diffused more as we should wish it diffused. In the one case in which we can unanswerably test the modern spirit, it was right, and the dubious Upper House--the House which would have rejected it, if possible--was wrong. There is another reason. The House of Lords, being an hereditary chamber, cannot be of more than common ability. It may contain--it almost always has contained, it almost always will contain--extraordinary men. But its average born law-makers cannot be extraordinary. Being a set of eldest sons picked out by chance and history, it cannot be very wise. It would be a standing miracle if such a chamber possessed a knowledge of its age superior to the other men of the age; if it possessed a superior and supplemental knowledge; if it descried what they did not discern, and saw truly that which they saw, indeed, but saw untruly. The difficulty goes deeper. The task of revising, of adequately revising the legislation of this age, is not only that which an aristocracy has no facility in doing, but one which it has a difficulty in doing. Look at the statute book for 1865--the statutes at large for the year. You will find, not pieces of literature, not nice and subtle matters, but coarse matters, crude heaps of heavy business. They deal with trade, with finance, with statute-law reform, with common-law reform; they deal with various sorts of business, but with business always. And there is no educated human being less likely to know business, worse placed for knowing business than a young lord. Business is really more agreeable than pleasure; it interests the whole mind, the aggregate nature of man more continuously, and more deeply. But it does not look as if it did. It is difficult to convince a young man, who can have the best of pleasure, that it will. A young lord just come into 30,000 pounds a year will not, as a rule, care much for the law of patents, for the law of "passing tolls," or the law of prisons. Like Hercules, he may choose virtue, but hardly Hercules could choose business. He has everything to allure him from it, and nothing to allure him to it. And even if he wish to give himself to business, he has indifferent means. Pleasure is near him, but business is far from him. Few things are more amusing than the ideas of a well-intentioned young man, who is born out of the business world, but who wishes to take to business, about business. He has hardly a notion in what it consists. It really is the adjustment of certain particular means to equally certain particular ends. But hardly any young man destitute of experience is able to separate end and means. It seems to him a kind of mystery; and it is lucky if he do not think that the forms are the main part, and that the end is but secondary. There are plenty of business men falsely so called, who will advise him so. The subject seems a kind of maze. "What would you recommend me to READ?" the nice youth asks; and it is impossible to explain to him that reading has nothing to do with it, that he has not yet the original ideas in his mind to read about; that administration is an art as painting is an art; and that no book can teach the practice of either. Formerly this defect in the aristocracy was hidden by their own advantages. Being the only class at ease for money and cultivated in mind they were without competition; and though they might not be, as a rule, and extraordinary ability excepted, excellent in State business, they were the best that could be had. Even in old times, however, they sheltered themselves from the greater pressure of coarse work. They appointed a manager--a Peel or a Walpole, anything but an aristocrat in manner or in nature--to act for them or manage for them. But now a class is coming up trained to thought, full of money, and yet trained to business. As I write, two members of this class have been appointed to stations considerable in themselves, and sure to lead (if anything is sure in politics) to the Cabinet and power. This is the class of highly-cultivated men of business who, after a few years, are able to leave business and begin ambition. As yet these men are few in public life, because they do not know their own strength. It is like Columbus and the egg once again; a few original men will show it can be done, and then a crowd of common men will follow. These men know business partly from tradition, and this is much. There are University families--families who talk of fellowships, and who invest their children's ability in Latin verses, as soon as they discover it; there used to be Indian families of the same sort, and probably will be again when the competitive system has had time to foster a new breed. Just so there are business families to whom all that concerns money, all that concerns administration, is as familiar as the air they breathe. All Americans, it has been said, know business; it is in the air of their country. Just so certain classes know business here; and a lord can hardly know it. It is as great a difficulty to learn business in a palace as it is to learn agriculture in a park. To one kind of business, indeed, this doctrine does not apply. There is one kind of business in which our aristocracy have still, and are likely to retain long, a certain advantage. This is the business of diplomacy. Napoleon, who knew men well, would never, if he could help it, employ men of the Revolution in missions to the old courts; he said, "They spoke to no one and no one spoke to them"; and so they sent home no information. The reason is obvious. The old-world diplomacy of Europe was largely carried on in drawing-rooms, and, to a great extent, of necessity still is so. Nations touch at their summits. It is always the highest class which travels most, knows most of foreign nations, has the least of the territorial sectarianism which calls itself patriotism, and is often thought to be so. Even here, indeed, in England the new trade-class is in real merit equal to the aristocracy. Their knowledge of foreign things is as great, and their contact with them often more. But, notwithstanding, the new race is not as serviceable for diplomacy as the old race. An ambassador is not simply an agent; he is also a spectacle. He is sent abroad for show as well as for substance; he is to represent the Queen among foreign courts and foreign sovereigns. An aristocracy is in its nature better suited to such work; it is trained to the theatrical part of life; it is fit for that if it is fit for anything. But, with this exception, an aristocracy is necessarily inferior in business to the classes nearer business; and it is not, therefore, a suitable class, if we had our choice of classes, out of which to frame a chamber for revising matters of business. It is indeed a singular example how natural business is to the English race, that the House of Lords works as well as it does. The common appearance of the "whole House" is a jest--a dangerous anomaly, which Mr. Bright will sometimes use; but a great deal of substantial work is done in "Committees," and often very well done. The great majority of the peers do none of their appointed work, and could do none of it; but a minority--a minority never so large and never so earnest as in this age--do it, and do it well. Still no one, who examines the matter without prejudice, can say that the work is done perfectly. In a country so rich in mind as England, far more intellectual power can be, and ought to be, applied to the revision of our laws. And not only does the House of Lords do its work imperfectly, but often, at least, it does it timidly. Being only a section of the nation, it is afraid of the nation. Having been used for years and years, on the greatest matters to act contrary to its own judgment, it hardly knows when to act on that judgment. The depressing languor with which it damps an earnest young peer is at times ridiculous. "When the Corn Laws are gone, and the rotten boroughs, why tease about Clause IX. in the Bill to regulate Cotton Factories?" is the latent thought of many peers. A word from the leaders, from "the Duke," or Lord Derby, or Lord Lyndhurst, will rouse on any matters the sleeping energies; but most Lords are feeble and forlorn. These grave defects would have been at once lessened, and in the course of years nearly effaced, if the House of Lords had not resisted the proposal of Lord Palmerston's first Government to create peers for life. The expedient was almost perfect. The difficulty of reforming an old institution like the House of Lords is necessarily great; its possibility rests on continuous caste and ancient deference. And if you begin to agitate about it, to bawl at meetings about it, that deference is gone, its particular charm lost, its reserved sanctity gone. But, by an odd fatality, there was in the recesses of the Constitution an old prerogative which would have rendered agitation needless--which would have effected, without agitation, all that agitation could have effected. Lord Palmerston was--now that he is dead, and his memory can be calmly viewed--as firm a friend to an aristocracy, as thorough an aristocrat, as any in England; yet he proposed to use that power. If the House of Lords had still been under the rule of the Duke of Wellington, perhaps they would have acquiesced. The Duke would not indeed have reflected on all the considerations which a philosophic statesman would have set out before him; but he would have been brought right by one of his peculiarities. He disliked, above all things, to oppose the Crown. At a great crisis, at the crisis of the Corn Laws, what he considered was not what other people were thinking of, the economical issue under discussion, the welfare of the country hanging in the balance, but the Queen's ease. He thought the Crown so superior a part in the Constitution, that, even on vital occasions, he looked solely--or said he looked solely--to the momentary comfort of the present sovereign. He never was comfortable in opposing a conspicuous act of the Crown. It is very likely that, if the Duke had still been the president of the House of Lords, they would have permitted the Crown to prevail in its well-chosen scheme. But the Duke was dead, and his authority--or some of it--had fallen to a very different person. Lord Lyndhurst had many great qualities: he had a splendid intellect--as great a faculty of finding truth as any one in his generation; but he had no love of truth. With this great faculty of finding truth, he was a believer in error--in what his own party now admit to be error--all his life through. He could have found the truth as a statesman just as he found it when a judge; but he never did find it. He never looked for it. He was a great partisan, and he applied a capacity of argument, and a faculty of intellectual argument rarely equalled, to support the tenets of his party. The proposal to create life peers was proposed by the antagonistic party--was at the moment likely to injure his own party. To him this was a great opportunity. The speech he delivered on that occasion lives in the memory of those who heard it. His eyes did not at that time let him read, so he repeated by memory, and quite accurately, all the black-letter authorities, bearing on the question. So great an intellectual effort has rarely been seen in an English assembly. But the result was deplorable. Not by means of his black-letter authorities, but by means of his recognised authority and his vivid impression, he induced the House of Lords to reject the proposition of the Government. Lord Lyndhurst said the Crown could not now create life peers, and so there are no life peers. The House of Lords rejected the inestimable, the unprecedented opportunity of being tacitly reformed. Such a chance does not come twice. The life peers who would have been then introduced would have been among the first men in the country. Lord Macaulay was to have been among the first; Lord Wensleydale--the most learned and not the least logical of our lawyers--to be the very first. Thirty or forty such men, added judiciously and sparingly as years went on, would have given to the House of Lords the very element which, as a criticising chamber, it needs so much. It would have given it critics. The most accomplished men in each department might then, without irrelevant considerations of family and of fortune, have been added to the Chamber of Review. The very element which was wanted to the House of Lords was, as it were, by a constitutional providence, offered to the House of Lords, and they refused it. By what species of effort that error can be repaired I cannot tell; but, unless it is repaired, the intellectual capacity can never be what it would have been, will never be what it ought to be, will never be sufficient for its work. Another reform ought to have accompanied the creation of life peers. Proxies ought to have been abolished. Some time or other the slack attendance of the House of Lords will destroy the House of Lords. There are occasions in which appearances are realities, and this is one of them. The House of Lords on most days looks so unlike what it ought to be, that most people will not believe it is what it ought to be. The attendance of considerate peers will, for obvious reasons, be larger when it can no longer be overpowered by the NON-attendance, by the commissioned votes of inconsiderate peers. The abolition of proxies would have made the House of Lords a real House; the addition of life peers would have made it a good House. The greater of these changes would have most materially aided the House of Lords in the performance of its subsidiary functions. It always perhaps happens in a great nation, that certain bodies of sensible men posted prominently in its Constitution, acquire functions, and usefully exercise functions, which at the outset, no one expected from them, and which do not identify themselves with their original design. This has happened to the House of Lords especially. The most obvious instance is the judicial function. This is a function which no theorist would assign to a second chamber in a new Constitution, and which is matter of accident in ours. Gradually, indeed, the unfitness of the second chamber for judicial functions has made itself felt. Under our present arrangements this function is not entrusted to the House of Lords, but to a Committee of the House of Lords. On one occasion only, the trial of O'Connell, the whole House, or some few in the whole House, wished to vote, and they were told they could not, or they would destroy the judicial prerogative. No one, indeed, would venture REALLY to place the judicial function in the chance majorities of a fluctuating assembly: it is so by a sleepy theory; it is not so in living fact. As a legal question, too, it is a matter of grave doubt whether there ought to be two supreme courts in this country--the Judicial Committee of the Privy Council, and (what is in fact though not in name) the Judicial Committee of the House of Lords. Up to a very recent time, one committee might decide that a man was sane as to money, and the other committee might decide that he was insane as to land. This absurdity has been cured; but the error from which it arose has not been cured--the error of having two supreme courts, to both of which as time goes on, the same question is sure often enough to be submitted, and each of which is sure every now and then to decide it differently. I do not reckon the judicial function of the House of Lords as one of its true subsidiary functions, first because it does not in fact exercise it, next because I wish to see it in appearance deprived of it. The supreme court of the English people ought to be a great conspicuous tribunal, ought to rule all other courts, ought to have no competitor, ought to bring our law into unity, ought not to be hidden beneath the robes of a legislative assembly. The real subsidiary functions of the House of Lords are, unlike its judicial functions, very analogous to its substantial nature. The first is the faculty of criticising the executive. An assembly in which the mass of the members have nothing to lose, where most have nothing to gain, where every one has a social position firmly fixed, where no one has a constituency, where hardly any one cares for the minister of the day, is the very assembly in which to look for, from which to expect, independent criticism. And in matter of fact we find it. The criticism of the Acts of late administrations by Lord Grey has been admirable. But such criticism, to have its full value, should be many-sided. Every man of great ability puts his own mark on his own criticism; it will be full of thought and feeling, but then it is of idiosyncratic thought and feeling. We want many critics of ability and knowledge in the Upper House--not equal to Lord Grey, for they would be hard to find--but like Lord Grey. They should resemble him in impartiality; they should resemble him in clearness; they should most of all resemble him in taking a supplemental view of a subject. There is an actor's view of a subject, which (I speak of mature and discussed action--of Cabinet action) is nearly sure to include everything old and new--everything ascertained and determinate. But there is also a bystander's view which is likely to omit some one or more of these old and certain elements, but also to contain some new or distant matter, which the absorbed and occupied actor could not see. There ought to be many life peers in our secondary chamber capable of giving us this higher criticism. I am afraid we shall not soon see them, but as a first step we should learn to wish for them. The second subsidiary action of the House of Lords is even more important. Taking the House of Commons, not after possible but most unlikely improvements, but in matter of fact and as it stands, it is overwhelmed with work. The task of managing it falls upon the Cabinet, and that task is very hard. Every member of the Cabinet in the Commons has to "attend the House"; to contribute by his votes, if not by his voice, to the management of the House. Even in so small a matter as the Education Department, Mr. Lowe, a consummate observer, spoke of the desirability of finding a chief "not exposed to the prodigious labour of attending the House of Commons". It is all but necessary that certain members of the Cabinet should be exempt from its toil, and untouched by its excitement. But it is also necessary that they should have the power of explaining their views to the nation; of being heard as other people are heard. There are various plans for so doing, which I may discuss a little in speaking of the House of Commons. But so much is evident: the House of Lords, for its own members, attains this object; it gives them a voice, it gives them what no competing plan does give them--POSITION. The leisured members of the Cabinet speak in the Lords with authority and power. They are not administrators with a right to speech--clerks (as is sometimes suggested) brought down to lecture a House, but not to vote in it; but they are the equals of those they speak to; they speak as they like, and reply as they choose; they address the House, not with the "bated breath" of subordinates, but with the force and dignity of sure rank. Life peers would enable us to use this faculty of our Constitution more freely and more variously. It would give us a larger command of able leisure; it would improve the Lords as a political pulpit, for it would enlarge the list of its select preachers. The danger of the House of Commons is, perhaps, that it will be reformed too rashly; the danger of the House of Lords certainly is, that it may never be reformed. Nobody asks that it should be so; it is quite safe against rough destruction, but it is not safe against inward decay. It may lose its veto as the Crown has lost its veto. If most of its members neglect their duties, if all its members continue to be of one class, and that not quite the best; if its doors are shut against genius that cannot found a family, and ability which has not 5000 pounds a year, its power will be less year by year, and at last be gone, as so much kingly power is gone--no one knows how. Its danger is not in assassination, but atrophy; not abolition, but decline. NO. V. THE HOUSE OF COMMONS. [Footnote: I reprint this chapter substantially as it was first written. It is too soon, as I have explained in the introduction, to say what changes the late Reform Act will make in the House of Commons.] The dignified aspect of the House of Commons is altogether secondary to its efficient use. It IS dignified: in a Government in which the most prominent parts are good because they are very stately, any prominent part, to be good at all, must be somewhat stately. The human imagination exacts keeping in government as much as in art; it will not be at all influenced by institutions which do not match with those by which it is principally influenced. The House of Commons needs to be impressive, and impressive it is: but its use resides not in its appearance, but in its reality. Its office is not to win power by awing mankind, but to use power in governing mankind. The main function of the House of Commons is one which we know quite well, though our common constitutional speech does not recognise it. The House of Commons is an electoral chamber; it is the assembly which chooses our president. Washington and his fellow-politicians contrived an electoral college, to be composed (as was hoped) of the wisest people in the nation, which, after due deliberation, was to choose for president the wisest man in the nation. But that college is a sham; it has no independence and no life. No one knows, or cares to know, who its members are. They never discuss, and never deliberate. They were chosen to vote that Mr. Lincoln be President, or that Mr. Breckenridge be President; they do so vote, and they go home. But our House of Commons is a real choosing body; it elects the people it likes. And it dismisses whom it likes too. No matter that a few months since it was chosen to support Lord Aberdeen or Lord Palmerston; upon a sudden occasion it ousts the statesman to whom it at first adhered, and selects an opposite statesman whom it at first rejected. Doubtless in such cases there is a tacit reference to probable public opinion; but certainly also there is much free will in the judgment of the Commons. The House only goes where it thinks in the end the nation will follow; but it takes its chance of the nation following or not following; it assumes the initiative, and acts upon its discretion or its caprice. When the American nation has chosen its President, its virtue goes out of it, and out of the Transmissive College through which it chooses. But because the House of Commons has the power of dismissal in addition to the power of election, its relations to the Premier are incessant. They guide him and he leads them. He is to them what they are to the nation. He only goes where he believes they will go after him. But he has to take the lead; he must choose his direction, and begin the journey. Nor must he flinch. A good horse likes to feel the rider's bit; and a great deliberative assembly likes to feel that it is under worthy guidance. A Minister who succumbs to the House,--who ostentatiously seeks its pleasure,--who does not try to regulate it,--who will not boldly point out plain errors to it, seldom thrives. The great leaders of Parliament have varied much, but they have all had a certain firmness. A great assembly is as soon spoiled by over-indulgence as a little child. The whole life of English politics is the action and reaction between the Ministry and the Parliament. The appointees strive to guide, and the appointers surge under the guidance. The elective is now the most important function of the House of Commons. It is most desirable to insist, and be tedious, on this, because our tradition ignores it. At the end of half the sessions of Parliament, you will read in the newspapers, and you will hear even from those who have looked close at the matter and should know better, "Parliament has done nothing this session. Some things were promised in the Queen's speech, but they were only little things; and most of them have not passed." Lord Lyndhurst used for years to recount the small outcomings of legislative achievement; and yet those were the days of the first Whig Governments, who had more to do in legislation, and did more, than any Government. The true answer to such harangues as Lord Lyndhurst's by a Minister should have been in the first person. He should have said firmly, "Parliament has maintained ME, and that was its greatest duty; Parliament has carried on what, in the language of traditional respect, we call the Queen's Government; it has maintained what wisely or unwisely it deemed the best executive of the English nation". The second function of the House of Commons is what I may call an expressive function. It is its office to express the mind of the English people on all matters which come before it. Whether it does so well or ill I shall discuss presently. The third function of Parliament is what I may call--preserving a sort of technicality even in familiar matters for the sake of distinctness--the teaching function. A great and open council of considerable men cannot be placed in the middle of a society without altering that society. It ought to alter it for the better. It ought to teach the nation what it does not know. How far the House of Commons can so teach, and how far it does so teach, are matters for subsequent discussion. Fourthly, the House of Commons has what may be called an informing function--a function which though in its present form quite modern is singularly analogous to a mediaeval function. In old times one office of the House of Commons was to inform the sovereign what was wrong. It laid before the Crown the grievances and complaints of particular interests. Since the publication of the Parliamentary debates a corresponding office of Parliament is to lay these same grievances, these same complaints, before the nation, which is the present sovereign. The nation needs it quite as much as the king ever needed it. A free people is indeed mostly fair, liberty practises men in a give-and-take, which is the rough essence of justice. The English people, possibly even above other free nations, is fair. But a free nation rarely can be--and the English nation is not--quick of apprehension. It only comprehends what is familiar to it--what comes into its own experience, what squares with its own thoughts. "I never heard of such a thing in my life," the middle-class Englishman says, and he thinks he so refutes an argument. The common disputant cannot say in reply that his experience is but limited, and that the assertion may be true, though he had never met with anything at all like it. But a great debate in Parliament does bring home something of this feeling. Any notion, any creed, any feeling, any grievance which can get a decent number of English members to stand up for it, is felt by almost all Englishmen to be perhaps a false and pernicious opinion, but at any rate possible--an opinion within the intellectual sphere, an opinion to be reckoned with. And it is an immense achievement. Practical diplomatists say that a free Government is harder to deal with than a despotic Government; you may be able to get the despot to hear the other side; his Ministers, men of trained intelligence, will be sure to know what makes against them; and they MAY tell him. But a free nation never hears any side save its own. The newspapers only repeat the side their purchasers like: the favourable arguments are set out, elaborated, illustrated; the adverse arguments maimed, misstated, confused. The worst judge, they say, is a deaf judge; the most dull Government is a free Government on matters its ruling classes will not hear. I am disposed to reckon it as the second function of Parliament in point of importance, that to some extent it makes us hear what otherwise we should not. Lastly, there is the function of legislation, of which of course it would be preposterous to deny the great importance, and which I only deny to be AS important as the executive management of the whole State, or the political education given by Parliament to the whole nation. There are, I allow, seasons when legislation is more important than either of these. The nation may be misfitted with its laws, and need to change them: some particular corn law may hurt all industry, and it may be worth a thousand administrative blunders to get rid of it. But generally the laws of a nation suit its life; special adaptations of them are but subordinate; the administration and conduct of that life is the matter which presses most. Nevertheless, the statute-book of every great nation yearly contains many important new laws, and the English statute-book does so above any. An immense mass, indeed, of the legislation is not, in the proper language of jurisprudence, legislation at all. A law is a general command applicable to many cases. The "special acts" which crowd the statute-book and weary Parliamentary committees are applicable to one case only. They do not lay down rules according to which railways shall be made, they enact that such a railway shall be made from this place to that place, and they have no bearing upon any other transaction. But after every deduction and abatement, the annual legislation of Parliament is a result of singular importance; were it not so, it could not be, as it often is considered, the sole result of its annual assembling. Some persons will perhaps think that I ought to enumerate a sixth function of the House of Commons--a financial function. But I do not consider that, upon broad principle, and omitting legal technicalities, the House of Commons has any special function with regard to financial different from its functions with respect to other legislation. It is to rule in both, and to rule in both through the Cabinet. Financial legislation is of necessity a yearly recurring legislation; but frequency of occurrence does not indicate a diversity of nature or compel an antagonism of treatment. In truth, the principal peculiarity of the House of Commons in financial affairs is nowadays not a special privilege, but an exceptional disability. On common subjects any member can propose anything, but not on money--the Minister only can propose to tax the people. This principle is commonly involved in mediaeval metaphysics as to the prerogative of the Crown, but it is as useful in the nineteenth century as in the fourteenth, and rests on as sure a principle. The House of Commons--now that it is the true sovereign, and appoints the real executive--has long ceased to be the checking, sparing, economical body it once was. It now is more apt to spend money than the Minister of the day. I have heard a very experienced financier say, "If you want to raise a certain cheer in the House of Commons make a general panegyric on economy; if you want to invite a sure defeat, propose a particular saving". The process is simple. Every expenditure of public money has some apparent public object; those who wish to spend the money expatiate on that object; they say, "What is 50,000 pounds to this great country? Is this a time for cheese-paring objection? Our industry was never so productive; our resources never so immense. What is 50,000 pounds in comparison with this great national interest?" The members who are for the expenditure always come down; perhaps a constituent or a friend who will profit by the outlay, or is keen on the object, has asked them to attend; at any rate, there is a popular vote to be given, on which the newspapers--always philanthropic, and sometimes talked over--will be sure to make enconiums. The members against the expenditure rarely come down of themselves; why should they become unpopular without reason? The object seems decent; many of its advocates are certainly sincere: a hostile vote will make enemies, and be censured by the journals. If there were not some check, the "people's house" would soon outrun the people's money. That check is the responsibility of the Cabinet for the national finance. If any one could propose a tax, they might let the House spend it as it would, and wash their hands of the matter; but now, for whatever expenditure is sanctioned--even when it is sanctioned against the Ministry's wish--the Ministry must find the money. Accordingly, they have the strongest motive to oppose extra outlay. They will have to pay the bill for it; they will have to impose taxation, which is always disagreeable, or suggest loans, which, under ordinary circumstances, are shameful. The Ministry is (so to speak) the bread-winner of the political family, and has to meet the cost of philanthropy and glory, just as the head of a family has to pay for the charities of his wife and the toilette of his daughters. In truth, when a Cabinet is made the sole executive, it follows it must have the sole financial charge, for all action costs money, all policy depends on money, and it is in adjusting the relative goodness of action and policies that the executive is employed. From a consideration of these functions, it follows that we are ruled by the House of Commons; we are, indeed, so used to be so ruled, that it does not seem to be at all strange. But of all odd forms of government, the oddest really is government by a PUBLIC MEETING. Here are 658 persons, collected from all parts of England, different in nature, different in interests, different in look, and language. If we think what an empire the English is, how various are its components, how incessant its concerns, how immersed in history its policy; if we think what a vast information, what a nice discretion, what a consistent will ought to mark the rulers of that empire, we shall be surprised when we see them. We see a changing body of miscellaneous persons, sometimes few, sometimes many, never the same for an hour; sometimes excited, but mostly dull and half weary--impatient of eloquence, catching at any joke as an alleviation. These are the persons who rule the British Empire--who rule England, who rule Scotland, who rule Ireland, who rule a great deal of Asia, who rule a great deal of Polynesia, who rule a great deal of America, and scattered fragments everywhere. Paley said many shrewd things, but he never said a better thing than that it was much harder to make men see a difficulty than comprehend the explanation of it. The key to the difficulties of most discussed and unsettled questions is commonly in their undiscussed parts: they are like the background of a picture, which looks obvious, easy, just what any one might have painted, but which, in fact, sets the figures in their right position, chastens them, and makes them what they are. Nobody will understand Parliament government who fancies it an easy thing, a natural thing, a thing not needing explanation. You have not a perception of the first elements in this matter till you know that government by a CLUB is a standing wonder. There has been a capital illustration lately how helpless many English gentlemen are when called together on a sudden. The Government, rightly or wrongly, thought fit to entrust the quarter-sessions of each county with the duty of combating its cattle-plague; but the scene in most "shire halls" was unsatisfactory. There was the greatest difficulty in getting, not only a right decision, but ANY decision, I saw one myself which went thus. The chairman proposed a very complex resolution, in which there was much which every one liked, and much which every one disliked, though, of course, the favourite parts of some were the objectionable parts to others. This resolution got, so to say, wedged in the meeting; everybody suggested amendments; one amendment was carried which none were satisfied with, and so the matter stood over. It is a saying in England, "a big meeting never does anything"; and yet we are governed by the House of Commons--by "a big meeting". It may be said that the House of Commons does not rule, it only elects the rulers. But there must be something special about it to enable it to do that. Suppose the Cabinet were elected by a London club, what confusion there would be, what writing and answering! "Will you speak to So-and-So, and ask him to vote for my man?" would be heard on every side. How the wife of A. and the wife of B. would plot to confound the wife of C. Whether the club elected under the dignified shadow of a queen, or without the shadow, would hardly matter at all; if the substantial choice was in them, the confusion and intrigue would be there too. I propose to begin this paper by asking, not why the House of Commons governs well? but the fundamental--almost unasked question--how the House of Commons comes to be able to govern at all? The House of Commons can do work which the quarter-sessions or clubs cannot do, because it is an organised body, while quarter-sessions and clubs are unorganised. Two of the greatest orators in England--Lord Brougham and Lord Bolingbroke--spent much eloquence in attacking party government. Bolingbroke probably knew what he was doing; he was a consistent opponent of the power of the Commons; he wished to attack them in a vital part. But Lord Brougham does not know; he proposes to amend Parliamentary government by striking out the very elements which make Parliamentary government possible. At present the majority of Parliament obey certain leaders; what those leaders propose they support, what those leaders reject they reject. An old Secretary of the Treasury used to say, "This is a bad case, an indefensible case. We must apply our majority to this question." That secretary lived fifty years ago, before the Reform Bill, when majorities were very blind, and very "applicable". Nowadays, the power of leaders over their followers is strictly and wisely limited: they can take their followers but a little way, and that only in certain directions. Yet still there are leaders and followers. On the Conservative side of the House there are vestiges of the despotic leadership even now. A cynical politician is said to have watched the long row of county members, so fresh and respectable-looking, and muttered, "By Jove, they are the finest brute votes in Europe!" But all satire apart, the principle of Parliament is obedience to leaders. Change your leader if you will, take another if you will, but obey No. 1 while you serve No. 1, and obey No. 2 when you have gone over to No. 2. The penalty of not doing so, is the penalty of impotence. It is not that you will not be able to do any good, but you will not be able to do anything at all. If everybody does what he thinks right, there will be 657 amendments to every motion, and none of them will be carried or the motion either. The moment, indeed, that we distinctly conceive that the House of Commons is mainly and above all things an elective assembly, we at once perceive that party is of its essence. There never was an election without a party. You cannot get a child into an asylum without a combination. At such places you may see "Vote for orphan A." upon a placard, and "Vote for orphan B. (also an idiot!!!)" upon a banner, and the party of each is busy about its placard and banner. What is true at such minor and momentary elections must be much more true in a great and constant election of rulers. The House of Commons lives in a state of perpetual potential choice; at any moment it can choose a ruler and dismiss a ruler. And therefore party is inherent in it, is bone of its bone, and breath of its breath. Secondly, though the leaders of party no longer have the vast patronage of the last century with which to bribe, they can coerce by a threat far more potent than any allurement--they can dissolve. This is the secret which keeps parties together. Mr. Cobden most justly said: "He had never been able to discover what was the proper moment, according to members of Parliament, for a dissolution. He had heard them say they were ready to vote for everything else, but he had never heard them say they were ready to vote for that." Efficiency in an assembly requires a solid mass of steady votes; and these are COLLECTED by a deferential attachment to particular men, or by a belief in the principles those men represent, and they are MAINTAINED by fear of those men--by the fear that if you vote against them, you may yourself soon not have a vote at all. Thirdly, it may seem odd to say so, just after inculcating that party organisation is the vital principle of representative government, but that organisation is permanently efficient, because it is not composed of warm partisans. The body is eager, but the atoms are cool. If it were otherwise, Parliamentary government would become the worst of governments--a sectarian government. The party in power would go all the lengths their orators proposed--all that their formulae enjoined, as far as they had ever said they would go. But the partisans of the English Parliament are not of such a temper. They are Whigs, or Radicals, or Tories, but they are much else too. They are common Englishmen, and, as Father Newman complains, "hard to be worked up to the dogmatic level". They are not eager to press the tenets of their party to impossible conclusions. On the contrary, the way to lead them--the best and acknowledged way--is to affect a studied and illogical moderation. You may hear men say, "Without committing myself to the tenet that 3 + 2 make 5, though I am free to admit that the honourable member for Bradford has advanced very grave arguments in behalf of it, I think I may, with the permission of the Committee, assume that 2 + 3 do not make 4, which will be a sufficient basis for the important propositions which I shall venture to submit on the present occasion." This language is very suitable to the greater part of the House of Commons. Most men of business love a sort of twilight. They have lived all their lives in an atmosphere of probabilities and of doubt, where nothing is very clear, where there are some chances for many events, where there is much to be said for several courses, where nevertheless one course must be determinedly chosen and fixedly adhered to. They like to hear arguments suited to this intellectual haze. So far from caution or hesitation in the statement of the argument striking them as an indication of imbecility, it seems to them a sign of practicality. They got rich themselves by transactions of which they could not have stated the argumentative ground--and all they ask for is a distinct though moderate conclusion, that they can repeat when asked; something which they feel NOT to be abstract argument, but abstract argument diluted and dissolved in real life. "There seem to me," an impatient young man once said, "to be no stay in Peel's arguments." And that was why Sir Robert Peel was the best leader of the Commons in our time; we like to have the rigidity taken out of an argument, and the substance left. Nor indeed, under our system of government, are the leaders themselves of the House of Commons, for the most part, eager to carry party conclusions too far. They are in contact with reality. An Opposition, on coming into power, is often like a speculative merchant whose bills become due. Ministers have to make good their promises, and they find a difficulty in so doing. They have said the state of things is so and so, and if you give us the power we will do thus and thus. But when they come to handle the official documents, to converse with the permanent under-secretary--familiar with disagreeable facts, and though in manner most respectful, yet most imperturbable in opinion--very soon doubts intervene. Of course, something must be done; the speculative merchant cannot forget his bills; the late Opposition cannot, in office, forget those sentences which terrible admirers in the country still quote. But just as the merchant asks his debtor, "Could you not take a bill at four months?" so the new Minister says to the permanent under-secretary, "Could you not suggest a middle course? I am of course not bound by mere sentences used in debate; I have never been accused of letting a false ambition of consistency warp my conduct; but," etc., etc. And the end always is that a middle course is devised which LOOKS as much as possible like what was suggested in opposition, but which IS as much as possible what patent facts--facts which seem to live in the office, so teasing and unceasing are they--prove ought to be done. Of all modes of enforcing moderation on a party, the best is to contrive that the members of that party shall be intrinsically moderate, careful, and almost shrinking men; and the next best to contrive that the leaders of the party, who have protested most in its behalf, shall be placed in the closest contact with the actual world. Our English system contains both contrivances; it makes party government permanent and possible in the sole way in which it can be so, by making it mild. But these expedients, though they sufficiently remove the defects which make a common club or quarter-sessions impotent, would not enable the House of Commons to govern England. A representative public meeting is subject to a defect over and above those of other public meetings. It may not be independent. The constituencies may not let it alone. But if they do not, all the checks which have been enumerated upon the evils of a party organisation would be futile. The feeling of a constituency is the feeling of a dominant party, and that feeling is elicited, stimulated, sometimes even manufactured by the local political agent. Such an opinion could not be moderate; could not be subject to effectual discussion; could not be in close contact with pressing facts; could not be framed under a chastening sense of near responsibility; could not be formed as those form their opinions who have to act upon them. Constituency government is the precise opposite of Parliamentary government. It is the government of immoderate persons far from the scene of action, instead of the government of moderate persons close to the scene of action; it is the judgment of persons judging in the last resort and without a penalty, in lieu of persons judging in fear of a dissolution, and ever conscious that they are subject to an appeal. Most persons would admit these conditions of Parliamentary government when they read them, but two at least of the most prominent ideas in the public mind are inconsistent with them. The scheme to which the arguments of our demagogues distinctly tend, and the scheme to which the predilections of some most eminent philosophers cleave, are both so. They would not only make Parliamentary government work ill, but they would prevent its working at all; they would not render it bad, for they would make it impossible. The first of these is the ultra-democratic theory. This theory demands that every man of twenty-one years of age (if not every woman too) should have an equal vote in electing Parliament. Suppose that last year there were twelve million adult males in England. Upon this theory each man is to have one twelve-millionth share in electing a Parliament; the rich and wise are not to have, by explicit law, more votes than the poor and stupid; nor are any latent contrivances to give them an influence equivalent to more votes. The machinery for carrying out such a plan is very easy. At each census the country ought to be divided into 658 electoral districts, in each of which the number of adult males should be the same; and these districts ought to be the only constituencies, and elect the whole Parliament. But if the above prerequisites are needful for Parliamentary government, that Parliament would not work. Such a Parliament could not be composed of moderate men. The electoral districts would be, some of them, in purely agricultural places, and in these the parson and the squire would have almost unlimited power. They would be able to drive or send to the poll an entire labouring population. These districts would return an unmixed squirearchy. The scattered small towns which now send so many members to Parliament, would be lost in the clownish mass; their votes would send to Parliament no distinct members. The agricultural part of England would choose its representatives from quarter-sessions exclusively. On the other hand a large part of the constituencies would be town districts, and these would send up persons representing the beliefs or unbeliefs of the lowest classes in their towns. They would, perhaps, be divided between the genuine representatives of the artisans--not possibly of the best of the artisans, who are a select and intellectual class, but of the common order of workpeople--and the merely pretended members for that class whom I may call the members for the public-houses. In all big towns in which there is electioneering these houses are the centres of illicit corruption and illicit management. There are pretty good records of what that corruption and management are, but there is no need to describe them here. Everybody will understand what sort of things I mean, and the kind of unprincipled members that are returned by them. Our new Parliament, therefore, would be made up of two sorts of representatives from the town lowest class, and one sort of representatives from the agricultural lowest class. The genuine representatives of the country would be men of one marked sort, and the genuine representatives for the county men of another marked sort, but very opposite: one would have the prejudices of town artisans, and the other the prejudices of county magistrates. Each class would speak a language of its own; each would be unintelligible to the other; and the only thriving class would be the immoral representatives, who were chosen by corrupt machination, and who would probably get a good profit on the capital they laid out in that corruption. If it be true that a Parliamentary government is possible only when the overwhelming majority of the representatives are men essentially moderate, of no marked varieties, free from class prejudices, this ultra-democratic Parliament could not maintain that government, for its members would be remarkable for two sorts of moral violence and one sort of immoral. I do not for a moment rank the scheme of Mr. Hare with the scheme of the ultra-democrats. One can hardly help having a feeling of romance about it. The world seems growing young when grave old lawyers and mature philosophers propose a scheme promising so much. It is from these classes that young men suffer commonly the chilling demonstration that their fine plans are opposed to rooted obstacles, that they are repetitions of other plans which failed long ago, and that we must be content with the very moderate results of tried machinery. But Mr. Hare and Mr. Mill offer as the effect of their new scheme results as large and improvements as interesting as a young enthusiast ever promised to himself in his happiest mood. I do not give any weight to the supposed impracticability of Mr. Hare's scheme because it is new. Of course it cannot be put in practice till it is old. A great change of this sort happily cannot be sudden; a free people cannot be confused by new institutions which they do not understand, for they will not adopt them till they understand them. But if Mr. Hare's plan would accomplish what its friends say, or half what they say, it would be worth working for, if it were not adopted till the year 1966. We ought incessantly to popularise the principle by writing; and, what is better than writing, small preliminary bits of experiment. There is so much that is wearisome and detestable in all other election machineries, that I well understand, and wish I could share, the sense of relief with which the believers in this scheme throw aside all their trammels, and look to an almost ideal future when this captivating plan is carried. Mr. Hare's scheme cannot be satisfactorily discussed in the elaborate form in which he presents it. No common person readily apprehends all the details in which, with loving care, he has embodied it. He was so anxious to prove what could be done, that he has confused most people as to what it is. I have heard a man say, "He never could remember it two days running". But the difficulty which I feel is fundamental, and wholly independent of detail. There are two modes in which constituencies may be made. First, the law may make them, as in England and almost everywhere: the law may say such and such qualifications shall give a vote for constituency X; those who have that qualification shall BE constituency X. These are what we may call compulsory constituencies, and we know all about them. Or, secondly, the law may leave the electors themselves to make them. The law may say all the adult males of a country shall vote, or those males who can read and write, or those who have 50 pounds a year, or any persons any way defined, and then leave those voters to group themselves as they like. Suppose there were 658,000 voters to elect the House of Commons; it is possible for the legislature to say, "We do not care how you combine. On a given day let each set of persons give notice in what group they mean to vote; if every voter gives notice, and every one looks to make the most of his vote, each group will have just 1000. But the law shall not make this necessary--it shall take the 658 most numerous groups, no matter whether they have 2000, or 1000, or 900, or 800 votes--the most numerous groups, whatever their number may be; and these shall be the constituencies of the nation." These are voluntary constituencies, if I may so call them; the simplest kind of voluntary constituencies. Mr. Hare proposes a far more complex kind; but to show the merits and demerits of the voluntary principle the simplest form is much the best. The temptation to that principle is very plain. Under the compulsory form of constituency the votes of the minorities are thrown away. In the city of London, now, there are many Tories, but all the members are Whigs; every London Tory, therefore, is by law and principle misrepresented: his city sends to Parliament not the member whom he wished to have, but the member he wished not to have. But upon the voluntary system the London Tories, who are far more than 1000 in number, may combine; they may make a constituency, and return a member. In many existing constituencies the disfranchisement of minorities is hopeless and chronic. I have myself had a vote for an agricultural county for twenty years, and I am a Liberal; but two Tories have always been returned, and all my life will be returned. As matters now stand, my vote is of no use. But if I could combine with 1000 other Liberals in that and other Conservative counties, we might choose a Liberal member. Again, this plan gets rid of all our difficulties as to the size of constituencies. It is said to be unreasonable that Liverpool should return only the same number of members as King's Lynn or Lyme Regis; but upon the voluntary plan, Liverpool could come down to King's Lynn. The Liberal minority in King's Lynn could communicate with the Liberal minority in Liverpool, and make up 1000; and so everywhere. The numbers of popular places would gain what is called their legitimate advantage; they would, when constituencies are voluntarily made, be able to make, and be willing to make the greatest number of constituencies. Again, the admirers of a great man could make a worthy constituency for him. As it is, Mr. Mill was returned by the electors of Westminster; and they have never, since they had members, done themselves so great an honour. But what did the electors of Westminster know of Mr. Mill? What fraction of his mind could be imagined by any percentage of their minds? A great deal of his genius most of them would not like. They meant to do homage to mental ability, but it was the worship of an unknown God--if ever there was such a thing in this world. But upon the voluntary plan, one thousand out of the many thousand students of Mr. Mill's book could have made an appreciating constituency for him. I could reckon other advantages, but I have to object to the scheme, not to recommend it. What are the counterweights which overpower these merits? I reply that the voluntary composition of constituencies appears to me inconsistent with the necessary prerequisites of Parliamentary government as they have been just laid down. Under the voluntary system, the crisis of politics is not the election of the member, but the making the constituency. President-making is already a trade in America, and constituency-making would, under the voluntary plan, be a trade here. Every party would have a numerical problem to solve. The leaders would say, "We have 350,000 votes, we must take care to have 350 members"; and the only way to obtain them is to organise. A man who wanted to compose part of a Liberal constituency must not himself hunt for 1000 other Liberals; if he did, after writing 10000 letters, he would probably find he was making part of a constituency of 100, all whose votes would be thrown away, the constituency being too small to be reckoned. Such a Liberal must write to the great Registration Association in Parliament Street; he must communicate with its able managers, and they would soon use his vote for him. They would say, "Sir, you are late; Mr. Gladstone, sir, is full. He got his 1000 last year. Most of the gentlemen you read of in the papers are full. As soon as a gentleman makes a nice speech, we get a heap of letters to say, 'Make us into that gentleman's constituency'. But we cannot do that. Here is our list. If you do not want to throw your vote away, you must be guided by us: here are three very satisfactory gentlemen (and one is an Honourable): you may vote for either of these, and we will write your name down; but if you go voting wildly, you'll be thrown out altogether." The evident result of this organisation would be the return of party men mainly. The member-makers would look, not for independence, but for subservience--and they could hardly be blamed for so doing. They are agents for the Liberal party; and, as such, they should be guided by what they take to be the wishes of their principal. The mass of the Liberal party wishes measure A, measure B, measure C. The managers of the registration--the skilled manipulators--are busy men. They would say, "Sir, here is our card; if you want to get into Parliament on our side, you must go for that card; it was drawn up by Mr. Lloyd; he used to be engaged on railways, but since they passed this new voting plan, we get him to attend to us; it is a sound card; stick to that and you will be right". Upon this (in theory) voluntary plan, you would get together a set of members bound hard and fast with party bands and fetters, infinitely tighter than any members now. Whoever hopes anything from desultory popular action if matched against systematised popular action, should consider the way in which the American President is chosen. The plan was that the citizens at large should vote for the statesman they liked best. But no one does anything of the sort. They vote for the ticket made by "the caucus," and the caucus is a sort of representative meeting which sits voting and voting till they have cut out all the known men against whom much is to be said, and agreed on some unknown man against whom there is nothing known, and therefore nothing to be alleged. Caucuses, or their equivalent, would be far worse here in constituency-making than there in President-making, because on great occasions the American nation can fix on some one great man whom it knows, but the English nation could not fix on 658 great men and choose them. It does not know so many, and if it did, would go wrong in the difficulties of the manipulation. But though a common voter could only be ranged in an effectual constituency, and a common candidate only reach a constituency by obeying the orders of the political election-contrivers upon his side, certain voters and certain members would be quite independent of both. There are organisations in this country which would soon make a set of constituencies for themselves. Every chapel would be an office for vote-transferring before the plan had been known three months. The Church would be much slower in learning it and much less handy in using it; but would learn. At present the Dissenters are a most energetic and valuable component of the Liberal party; but under the voluntary plan they would not be a component--they would be a separate, independent element. We now propose to group boroughs; but then they would combine chapels. There would be a member for the Baptist congregation of Tavistock, cum Totnes, cum, etc., etc. The full force of this cannot be appreciated except by referring to the former proof that the mass of a Parliament ought to be men of moderate sentiments, or they will elect an immoderate Ministry, and enact violent laws. But upon the plan suggested, the House would be made up of party politicians selected by a party committee, chained to that committee and pledged to party violence, and of characteristic, and therefore immoderate representatives, for every "ism" in all England. Instead of a deliberate assembly of moderate and judicious men, we should have a various compound of all sorts of violence. I may seem to be drawing a caricature, but I have not reached the worst. Bad as these members would be, if they were left to themselves--if, in a free Parliament, they were confronted with the perils of government, close responsibility might improve them and make them tolerable. But they would not be left to themselves. A voluntary constituency will nearly always be a despotic constituency. Even in the best case, where a set of earnest men choose a member to expound their earnestness, they will look after him to see that he does expound it. The members will be like the minister of a dissenting congregation. That congregation is collected by a unity of sentiment in doctrine A, and the preacher is to preach doctrine A; if he does not, he is dismissed. At present the member is free because the constituency is not in earnest; no constituency has an acute, accurate doctrinal creed in politics. The law made the constituencies by geographical divisions; and they are not bound together by close unity of belief. They have vague preferences for particular doctrines; and that is all. But a voluntary constituency would be a church with tenets; it would make its representative the messenger of its mandates, and the delegate of its determinations. As in the case of a dissenting congregation, one great minister sometimes rules it, while ninety-nine ministers in the hundred are ruled by it, so here one noted man would rule his electors, but the electors would rule all the others. Thus, the members for a good voluntary constituency would be hopelessly enslaved, because of its goodness; but the members for a bad voluntary constituency would be yet more enslaved because of its badness. The makers of these constituencies would keep the despotism in their own hands. In America there is a division of politicians into wire-pullers and blowers; under the voluntary system the member of Parliament would be the only momentary mouth-piece--the impotent blower; while the constituency-maker would be the latent wire-puller--the constant autocrat. He would write to gentlemen in Parliament, and say, "You were elected upon 'the Liberal ticket'; and if you deviate from that ticket you cannot be chosen again". And there would be no appeal for a common-minded man. He is no more likely to make a constituency for himself than a mole is likely to make a planet. It may indeed be said that against a septennial Parliament such machinations would be powerless; that a member elected for seven years might defy the remonstrances of an earnest constituency, or the imprecations of the latent manipulators. But after the voluntary composition of constituencies, there would soon be but short-lived Parliaments. Earnest constituencies would exact frequent elections; they would not like to part with their virtue for a long period; it would anger them to see it used contrary to their wishes, amid circumstances which at the election no one thought of. A seven years' Parliament is often chosen in one political period, lasts through a second, and is dissolved in a third. A constituency collected by law and on compulsion endures this change because it has no collective earnestness; it does not mind seeing the power it gave used in a manner that it could not have foreseen. But a self-formed constituency of eager opinions, a missionary constituency, so to speak, would object; it would think it its bounden duty to object; and the crafty manipulators, though they said nothing, in silence would object still more. The two together would enjoin annual elections, and would rule their members unflinchingly. The voluntary plan, therefore, when tried in this easy form is inconsistent with the extrinsic independence as well as with the inherent moderation of a Parliament--two of the conditions which, as we have seen, are essential to the bare possibility of Parliamentary government. The same objections, as is inevitable, adhere to that principle under its more complicated forms. It is in vain to pile detail on detail when the objection is one of first principle. If the above reasoning be sound, compulsory constituencies are necessary, voluntary constituencies destructive; the optional transferability of votes is not a salutary aid, but a ruinous innovation. I have dwelt upon the proposal of Mr. Hare and upon the ultra-democratic proposal, not only because of the high intellectual interest of the former and the possible practical interest of the latter, but because they tend to bring into relief two at least of the necessary conditions of Parliamentary government. But besides these necessary qualities which are needful before a Parliamentary government can work at all, there are some additional prerequisites before it can work well. That a House of Commons may work well it must perform, as we saw, five functions well: it must elect a Ministry well, legislate well, teach the nation well, express the nation's will well, bring matters to the nation's attention well. The discussion has a difficulty of its own. What is meant by "well"? Who is to judge? Is it to be some panel of philosophers, some fancied posterity, or some other outside authority? I answer, no philosophy, no posterity, no external authority, but the English nation here and now. Free government is self-government--a government of the people by the people. The best government of this sort is that which the people think best. An imposed government, a government like that of the English in India, may very possibly be better; it may represent the views of a higher race than the governed race; but it is not therefore a free government. A free government is that which the people subject to it voluntarily choose. In a casual collection of loose people the only possible free government is a democratic government. Where no one knows, or cares for, or respects any one else all must rank equal; no one's opinion can be more potent than that of another. But, as has been explained, a deferential nation has a structure of its own. Certain persons are by common consent agreed to be wiser than others, and their opinion is, by consent, to rank for much more than its numerical value. We may in these happy nations weigh votes as well as count them, though in less favoured countries we can count only. But in free nations, the votes so weighed or so counted must decide. A perfect free government is one which decides perfectly according to those votes; an imperfect, one which so decides imperfectly; a bad, one which does not so decide at all. Public opinion is the test of this polity; the best opinion which with its existing habits of deference, the nation will accept: if the free government goes by that opinion, it is a good government of its species; if it contravenes that opinion, it is a bad one. Tried by this rule the House of Commons does its appointing business well. It chooses rulers as we wish rulers to be chosen. If it did not, in a speaking and writing age we should soon know. I have heard a great Liberal statesman say, "The time was coming when we must advertise for a grievance".[6] What a good grievance it would be were the Ministry appointed and retained by the Parliament a Ministry detested by the nation. An anti-present-government league would be instantly created, and it would be more instantly powerful and more instantly successful than the Anti-Corn-Law League. [6] This was said in 1858. It has, indeed, been objected that the choosing business of Parliament is done ill, because it does not choose strong Governments. And it is certain that when public opinion does not definitely decide upon a marked policy, and when in consequence parties in the Parliament are nearly even, individual cupidity and changeability may make Parliament change its appointees too often; may induce them never enough to trust any of them; may make it keep all of them under a suspended sentence of coming dismissal. But the experience of Lord Palmerston's second Government proves, I think, that these fears are exaggerated. When the choice of a nation is really fixed on a statesman, Parliament will fix upon him too. The parties in the Parliament of 1859 were as nearly divided as in any probable Parliament; a great many Liberals did not much like Lord Palmerston, and they would have gladly co-operated in an attempt to dethrone him. But the same influence acted on Parliament within which acted on the nation without. The moderate men of both parties were satisfied that Lord Palmerston's was the best Government, and they therefore preserved it though it was hated by the immoderate on both sides. We have then found by a critical instance that a government supported by what I may call "the common element"--by the like-minded men of unlike parties--will be retained in power, though parties are even, and though, as Treasury counting reckons, the majority is imperceptible. If happily, by its intelligence and attractiveness, a Cabinet can gain a hold upon the great middle part of Parliament, it will continue to exist notwithstanding the hatching of small plots and the machinations of mean factions. On the whole, I think it indisputable that the selecting task of Parliament is performed as well as public opinion wishes it to be performed; and if we want to improve that standard, we must first improve the English nation, which imposes that standard. Of the substantial part of its legislative task, the same, too, may, I think, be said. The manner of our legislation is indeed detestable, and the machinery for settling that manner odious. A committee of the whole House, dealing, or attempting to deal with the elaborate clauses of a long bill, is a wretched specimen of severe but misplaced labour. It is sure to wedge some clause into the Act, such as that which the judge said "seemed to have fallen by itself, PERHAPS, from heaven, into the mind of the legislature," so little had it to do with anything on either side or around it. At such times government by a public meeting displays its inherent defects, and is little restrained by its necessary checks. But the essence of our legislature may be separated from its accidents. Subject to two considerable defects I think Parliament passes laws as the nation wishes to have them passed. Thirty years ago this was not so. The nation had outgrown its institutions, and was cramped by them. It was a man in the clothes of a boy; every limb wanted more room, and every garment to be fresh made. "D-mn me," said Lord Eldon in the dialect of his age, "if I had to begin life again I would begin as an agitator." The shrewd old man saw that the best life was that of a miscellaneous objector to the old world, though he loved that world, believed in it, could imagine no other. But he would not say so now. There is no worse trade than agitation at this time. A man can hardly get an audience if he wishes to complain of anything. Nowadays, not only does the mind and policy of Parliament (subject to the exceptions before named) possess the common sort of moderation essential to the possibility of Parliamentary government, but also that exact gradation, that precise species of moderation, most agreeable to the nation at large. Not only does the nation endure a Parliamentary government, which it would not do if Parliament were immoderate, but it likes Parliamentary government. A sense of satisfaction permeates the country because most or the country feels it has got the precise thing that suits it. The exceptions are two. First. That Parliament leans too much to the opinions of the landed interest. The Cattle Plague Act is a conspicuous instance of this defect. The details of that bill may be good or bad, and its policy wise or foolish. But the manner in which it was hurried through the House savoured of despotism. The cotton trade or the wine trade could not, in their maximum of peril, have obtained such aid in such a manner. The House of Commons would hear of no pause and would heed no arguments. The greatest number of them feared for their incomes. The land of England returns many members annually for the counties; these members the Constitution gave them. But what is curious is that the landed interest gives no seats to other classes, but takes plenty of seats FROM other classes. Half the boroughs in England are represented by considerable landowners, and when rent is in question, as in the cattle case, they think more of themselves than of those who sent them. In number the landed gentry in the House far surpass any other class. They have, too, a more intimate connection with one another; they were educated at the same schools; know one another's family name from boyhood; form a society; are the same kind of men; marry the same kind of women. The merchants and manufacturers in Parliament are a motley race--one educated here, another there, a third not educated at all; some are of the second generation of traders, who consider self-made men intruders upon an hereditary place; others are self-made, and regard the men of inherited wealth, which they did not make and do not augment, as beings of neither mind nor place, inferior to themselves because they have no brains, and inferior to lords because they have no rank. Traders have no bond of union, no habits of intercourse; their wives, if they care for society, want to see not the wives of other such men, but "better people," as they say--the wives of men certainly with land, and, if Heaven help, with the titles. Men who study the structure of Parliament, not in abstract books, but in the concrete London world, wonder not that the landed interest is very powerful, but that it is not despotic. I believe it would be despotic if it were clever, or rather if its representatives were so, but it has a fixed device to make them stupid. The counties not only elect landowners, which is natural, and perhaps wise, but also elect only landowners OF THEIR OWN COUNTY, which is absurd. There is no free trade in the agricultural mind; each county prohibits the import of able men from other counties. This is why eloquent sceptics--Bolingbroke and Disraeli--have been so apt to lead the unsceptical Tories. They WILL have people with a great piece of land in a particular spot, and of course these people generally cannot speak, and often cannot think. And so eloquent men who laugh at the party come to lead the party. The landed interest has much more influence than it should have; but it wastes that influence so much that the excess is, except on singular occurrences (like the cattle plague), of secondary moment. It is almost another side of the same matter to say that the structure of Parliament gives too little weight to the growing districts of the country and too much to the stationary, In old times the south of England was not only the pleasantest but the greatest part of England. Devonshire was a great maritime county when the foundations of our representation were fixed; Somersetshire and Wiltshire great manufacturing counties. The harsher climate of the northern counties was associated with a ruder, a stern, and a sparser people. The immense preponderance which our Parliament gave before 1832, and though pruned and mitigated, still gives to England south of the Trent, then corresponded to a real preponderance in wealth and mind. How opposite the present contrast is we all know. And the case gets worse every day. The nature of modern trade is to give to those who have much and take from those who have little. Manufacture goes where manufacture is, because there and there alone it finds attendant and auxiliary manufacture. Every railway takes trade from the little town to the big town because it enables the customer to buy in the big town. Year by year the North (as we may roughly call the new industrial world) gets more important, and the South (as we may call the pleasant remnant of old time) gets less important. It is a grave objection to our existing Parliamentary constitution that it gives much power to regions of past greatness, and refuses equal power to regions of present greatness. I think (though it is not a popular notion) that by far the greater part of the cry for Parliamentary reform is due to this inequality. The great capitalists, Mr. Bright and his friends, believe they are sincere in asking for more power for the working man, but, in fact, they very naturally and very properly want more power for themselves. They cannot endure--they ought not to endure--that a rich, able manufacturer should be a less man than a small stupid squire. The notions of political equality which Mr. Bright puts forward are as old as political speculation, and have been refuted by the first efforts of that speculation. But for all that they are likely to last as long as political society, because they are based upon indelible principles in human nature. Edmund Burke called the first East Indians, "Jacobins to a man," because they did not feel their "present importance equal to their real wealth". So long as there is an uneasy class, a class which has not its just power, it will rashly clutch and blindly believe the notion that all men should have the same power. I do not consider the exclusion of the working classes from effectual representation a defect in THIS aspect of our Parliamentary representation. The working classes contribute almost nothing to our corporate public opinion, and therefore, the fact of their want of influence in Parliament does not impair the coincidence of Parliament with public opinion. They are left out in the representation, and also in the thing represented. Nor do I think the number of persons of aristocratic descent in Parliament impairs the accordance of Parliament with public opinion. No doubt the direct descendants and collateral relatives of noble families supply members to Parliament in far greater proportion than is warranted by the number of such families in comparison with the whole nation. But I do not believe that these families have the least corporate character, or any common opinions, different from others of the landed gentry. They have the opinions of the propertied rank in which they were born. The English aristocracy have never been a caste apart, and are not a caste apart now. They would keep up nothing that other landed gentlemen would not. And if any landed gentlemen are to be sent to the House of Commons, it is desirable that many should be men of some rank. As long as we keep up a double set of institutions--one dignified and intended to impress the many, the other efficient and intended to govern the many--we should take care that the two match nicely, and hide where the one begins and where the other ends. This is in part effected by conceding some subordinate power to the august part of our polity, but it is equally aided by keeping an aristocratic element in the useful part of our polity. In truth, the deferential instinct secures both. Aristocracy is a power in the "constituencies". A man who is an honourable or a baronet, or better yet, perhaps, a real earl, though Irish, is coveted by half the electing bodies; and caeteris paribus, a manufacturer's son has no chance with him. The reality of the deferential feeling in the community is tested by the actual election of the class deferred to, where there is a large free choice betwixt it and others. Subject therefore to the two minor, but still not inconsiderable, defects I have named, Parliament conforms itself accurately enough, both as a chooser of executives and as a legislature, to the formed opinion of the country. Similarly, and subject to the same exceptions, it expresses the nation's opinion in words well, when it happens that words, not laws, are wanted. On foreign matters, where we cannot legislate, whatever the English nation thinks, or thinks it thinks, as to the critical events of the world, whether in Denmark, in Italy, or America, and no matter whether it thinks wisely or unwisely, that same something, wise or unwise, will be thoroughly well said in Parliament. The lyrical function of Parliament, if I may use such a phrase, is well done; it pours out in characteristic words the characteristic heart of the nation. And it can do little more useful. Now that free government is in Europe so rare and in America so distant, the opinion, even the incomplete, erroneous, rapid opinion of the free English people is invaluable. It may be very wrong, but it is sure to be unique; and if it is right it is sure to contain matter of great magnitude, for it is only a first-class matter in distant things which a free people ever sees or learns. The English people must miss a thousand minutiae that continental bureaucracies know even too well; but if they see a cardinal truth which those bureaucracies miss, that cardinal truth may greatly help the world. But if in these ways, and subject to these exceptions, Parliament by its policy and its speech well embodies and expresses public opinion, I own I think it must be conceded that it is not equally successful in elevating public opinion. The teaching task of Parliament is the task it does worst. Probably at this moment, it is natural to exaggerate this defect. The greatest teacher of all in Parliament, the head-master of the nation, the great elevator of the country--so far as Parliament elevates it--must be the Prime Minister: he has an influence, an authority, a facility in giving a great tone to discussion, or a mean tone, which no other man has. Now Lord Palmerston for many years steadily applied his mind to giving, not indeed a mean tone, but a light tone, to the proceedings of Parliament. One of his greatest admirers has since his death told a story of which he scarcely sees, or seems to see, the full effect. When Lord Palmerston was first made leader of the House, his jaunty manner was not at all popular, and some predicted failure. "No," said an old member, "he will soon educate us DOWN to his level; the House will soon prefer this Ha! Ha! style to the wit of Canning and the gravity of Peel." I am afraid that we must own that the prophecy was accomplished. No Prime Minister, so popular and so influential, has ever left in the public memory so little noble teaching. Twenty years hence, when men inquire as to the then fading memory of Palmerston, we shall be able to point to no great truth which he taught, no great distinct policy which he embodied, no noble words which once fascinated his age, and which, in after years, men would not willingly let die. But we shall be able to say "he had a genial manner, a firm, sound sense; he had a kind of cant of insincerity, but we always knew what he meant; he had the brain of a ruler in the clothes of a man of fashion". Posterity will hardly understand the words of the aged reminiscent, but we now feel their effect. The House of Commons, since it caught its tone from such a statesman, has taught the nation worse, and elevated it less, than usual. I think, however, that a correct observer would decide that in general, and on principle, the House of Commons does not teach the public as much as it might teach it, or as the public would wish to learn. I do not wish very abstract, very philosophical, very hard matters to be stated in Parliament. The teaching there given must be popular, and to be popular it must be concrete, embodied, short. The problem is to know the highest truth which the people will bear, and to inculcate and preach that. Certainly Lord Palmerston did not preach it. He a little degraded us by preaching a doctrine just below our own standard--a doctrine not enough below us to repel us much, but yet enough below to harm us by augmenting a worldliness which needed no addition, and by diminishing a love of principle and philosophy which did not want deduction. In comparison with the debates of any other assembly, it is true the debates by the English Parliament are most instructive. The debates in the American Congress have little teaching efficacy; it is the characteristic vice of Presidential government to deprive them of that efficacy; in that government a debate in the legislature has little effect, for it cannot turn out the executive, and the executive can veto all it decides. The French Chambers[7] are suitable appendages to an Empire which desires the power of despotism without its shame; they prevent the enemies of the Empire being quite correct when they say there is no free speech; a few permitted objectors fill the air with eloquence, which every one knows to be often true, and always vain. The debates in an English Parliament fill a space in the world which, in these auxiliary chambers, is not possible. But I think any one who compares the discussions on great questions in the higher part of the press, with the discussions in Parliament, will feel that there is (of course amid much exaggeration and vagueness) a greater vigour and a higher meaning in the writing than in the speech: a vigour which the public appreciate--a meaning that they like to hear. [7] This of course relates to the assemblies of the Empire. The Saturday Review said, some years since, that the ability of Parliament was a "protected ability": that there was at the door a differential duty of at least 2000 pounds a year. Accordingly the House of Commons, representing only mind coupled with property, is not equal in mind to a legislature chosen for mind only, and whether accompanied by wealth or not. But I do not for a moment wish to see a representation of pure mind; it would be contrary to the main thesis of this essay. I maintain that Parliament ought to embody the public opinion of the English nation; and, certainly, that opinion is much more fixed by its property than by its mind. The "too clever by half" people who live in "Bohemia," ought to have no more influence in Parliament than they have in England, and they can scarcely have less. Only, after every great abatement and deduction, I think the country would bear a little more mind; and that there is a profusion of opulent dulness in Parliament which might a little--though only a little--be pruned away. The only function of Parliament which remains to be considered is the informing function, as I just now called it; the function which belongs to it, or to members of it, to bring before the nation the ideas, grievances, and wishes of special classes. This must not be confounded with what I have called its teaching function. In life, no doubt, the two run one into another. But so do many things which it is very important in definition to separate. The facts of two things being often found together is rather a reason for, than an objection to, separating them, in idea. Sometimes they are NOT found together, and then we may be puzzled if we have not trained ourselves to separate them. The teaching function brings true ideas before the nation, and is the function of its highest minds. The expressive function brings only special ideas, and is the function of but special minds. Each class has its ideas, wants, and notions; and certain brains are ingrained with them. Such sectarian conceptions are not those by which a determining nation should regulate its action, nor are orators, mainly animated by such conceptions, safe guides in policy. But those orators should be heard; those conceptions should be kept in sight. The great maxim of modern thought is not only the toleration of everything, but the examination of everything. It is by examining very bare, very dull, very unpromising things, that modern science has come to be what it is. There is a story of a great chemist who said he owed half his fame to his habit of examining after his experiments, what was going to be thrown away: everybody knew the result of the experiment itself, but in the refuse matter there were many little facts and unknown changes, which suggested the discoveries of a famous life to a person capable of looking for them. So with the special notions of neglected classes. They may contain elements of truth which, though small, are the very elements which we now require, because we already know all the rest. This doctrine was well known to our ancestors. They laboured to give a CHARACTER to the various constituencies, or to many of them. They wished that the shipping trade, the wool trade, the linen trade, should each have their spokesman; that the unsectional Parliament should know what each section in the nation thought before it gave the national decision. This is the true reason for admitting the working classes to a share in the representation, at least as far as the composition of Parliament is to be improved by that admission. A great many ideas, a great many feelings have gathered among the town artisans--a peculiar intellectual life has sprung up among them. They believe that they have interests which are misconceived or neglected; that they know something which others do not know; that the thoughts of Parliament are not as their thoughts. They ought to be allowed to try to convince Parliament; their notions ought to be stated as those of other classes are stated; their advocates should be heard as other people's advocates are heard. Before the Reform Bill, there was a recognised machinery for that purpose. The member for Westminster, and other members, were elected by universal suffrage (or what was in substance such); those members did, in their day, state what were the grievances and ideas--or were thought to be the grievances and ideas--of the working classes. It was the single, unbending franchise introduced in 1832 that has caused this difficulty, as it has others. Until such a change is made the House of Commons will be defective, just as the House of Lords was defective. It will not LOOK right. As long as the Lords do not come to their own House, we may prove on paper that it is a good revising chamber, but it will be difficult to make the literary argument felt. Just so, as long as a great class, congregated in political localities, and known to have political thoughts and wishes, is without notorious and palpable advocates in Parliament, we may prove on paper that our representation is adequate, but the world will not believe it. There is a saying in the eighteenth century, that in politics, "gross appearances are great realities". It is in vain to demonstrate that the working classes have no grievances; that the middle classes have done all that is possible for them, and so on with a crowd of arguments which I need not repeat, for the newspapers keep them in type, and we can say them by heart. But so long as the "gross appearance" is that there are no evident, incessant representatives to speak the wants of artisans, the "great reality" will be a diffused dissatisfaction. Thirty years ago it was vain to prove that Gatton and Old Sarum were valuable seats, and sent good members. Everybody said, "Why, there are no people there". Just so everybody must say now, "Our representative system must be imperfect, for an immense class has no members to speak for it". The only answer to the cry against constituencies WITHOUT inhabitants was to transfer their power to constituencies WITH inhabitants. Just so, the way to stop the complaint that artisans have no members is to give them members--to create a body of representatives, chosen by artisans, believing, as Mr. Carlyle would say, "that artisanism is the one thing needful". NO. VI. ON CHANGES OF MINISTRY. There is one error as to the English Constitution which crops up periodically. Circumstances which often, though irregularly, occur naturally suggests that error, and as surely as they happen it revives. The relation of Parliament, and especially of the House of Commons, to the executive Government is the specific peculiarity of our Constitution, and an event which frequently happens much puzzles some people as to it. That event is a change of Ministry. All our administrators go out together. The whole executive Government changes--at least, all the heads of it change in a body, and at every such change some speculators are sure to exclaim that such a habit is foolish. They say: "No doubt Mr. Gladstone and Lord Russell may have been wrong about Reform; no doubt Mr. Gladstone may have been cross in the House of Commons; but why should either or both of these events change all the heads of all our practical departments? What could be more absurd than what happened in 1858? Lord Palmerston was for once in his life over-buoyant; he gave rude answers to stupid inquiries; he brought into the Cabinet a nobleman concerned in an ugly trial about a woman; he, or his Foreign Secretary, did not answer a French despatch by a despatch, but told our ambassador to reply orally. And because of these trifles, or at any rate these isolated UNadministrative mistakes, all our administration had fresh heads. The Poor Law Board had a new chief, the Home Department a new chief, the Public Works a new chief. Surely this was absurd." Now, is this objection good or bad? Speaking generally, is it wise so to change all our rulers? The practice produces three great evils. First, it brings in on a sudden new persons and untried persons to preside over our policy. A little while ago Lord Cranborne[8] had no more idea that he would now be Indian Secretary than that he would be a bill broker. He had never given any attention to Indian affairs; he can get them up, because he is an able educated man who can get up anything. But they are not "part and parcel" of his mind; not his subjects of familiar reflection, nor things of which he thinks by predilection, of which he cannot help thinking. But because Lord Russell and Mr. Gladstone did not please the House of Commons about Reform, there he is. A perfectly inexperienced man, so far as Indian affairs go, rules all our Indian Empire. And if all our heads of offices change together, so very frequently it must be. If twenty offices are vacant at once, there are almost never twenty tried, competent, clever men ready to take them. The difficulty of making up a Government is very much like the difficulty of putting together a Chinese puzzle: the spaces do not suit what you have to put into them. And the difficulty of matching a Ministry is more than that of fitting a puzzle, because the Ministers to be put in can object, though the bits of a puzzle cannot. One objector can throw out the combination. In 1847 Lord Grey would not join Lord John Russell's projected Government if Lord Palmerston was to be Foreign Secretary; Lord Palmerston WOULD be Foreign Secretary, and so the Government was not formed. The cases in which a single refusal prevents a Government are rare, and there must be many concurrent circumstances to make it effectual. But the cases in which refusals impair or spoil a Government are very common. It almost never happens that the Ministry-maker can put into his offices exactly whom he would like; a number of placemen are always too proud, too eager, or too obstinate to go just where they should. [8] Now Lord Salisbury, who, when this was written, was Indian Secretary.--Note to second edition. Again, this system not only makes new Ministers ignorant, but keeps present Ministers indifferent. A man cannot feel the same interest that he might in his work if he knows that by events over which he has no control, by errors in which he had no share, by metamorphoses of opinion which belong to a different sequence of phenomena, he may have to leave that work in the middle, and may very likely never return to it. The new man put into a fresh office ought to have the best motive to learn his task thoroughly, but, in fact, in England, he has not at all the best motive. The last wave of party and politics brought him there, the next may take him away. Young and eager men take, even at this disadvantage, a keen interest in office work, but most men, especially old men, hardly do so. Many a battered Minister may be seen to think much more of the vicissitudes which make him and unmake him, than of any office matter. Lastly, a sudden change of Ministers may easily cause a mischievous change of policy. In many matters of business, perhaps in most, a continuity of mediocrity is better than a hotch-potch of excellences. For example, now that progress in the scientific arts is revolutionising the instruments of war, rapid changes in our head-preparers for land and sea war are most costly and most hurtful. A single competent selector of new inventions would probably in the course of years, after some experience, arrive at something tolerable; it is in the nature of steady, regular, experimenting ability to diminish, if not vanquish, such difficulties. But a quick succession of chiefs has no similar facility. They do not learn from each other's experience;--you might as well expect the new head boy at a public school to learn from the experience of the last head boy. The most valuable result of many years is a nicely balanced mind instinctively heedful of various errors; but such a mind is the incommunicable gift of individual experience, and an outgoing Minister can no more leave it to his successor, than an elder brother can pass it on to a younger. Thus a desultory and incalculable policy may follow from a rapid change of Ministers. These are formidable arguments, but four things may, I think, be said in reply to, or mitigation of them. A little examination will show that this change of Ministers is essential to a Parliamentary government; that something like it will happen in all elective Governments, and that worse happens under Presidential government; that it is not necessarily prejudicial to a good administration, but that, on the contrary, something like it is a prerequisite of good administration; that the evident evils of English administration are not the results of Parliamentary government, but of grave deficiencies in other parts of our political and social state; that, in a word, they result not from what we have, but from what we have NOT. As to the first point, those who wish to remove the choice of Ministers from Parliament have not adequately considered what a Parliament is. A Parliament is nothing less than a big meeting of more or less idle people. In proportion as you give it power it will inquire into everything, settle everything, meddle in everything. In an ordinary despotism, the powers of a despot are limited by his bodily capacity, and by the calls of pleasure; he is but one man; there are but twelve hours in his day, and he is not disposed to employ more than a small part in dull business; he keeps the rest for the court, or the harem, or for society. He is at the top of the world, and all the pleasures of the world are set before him. Mostly there is only a very small part of political business which he cares to understand, and much of it (with the shrewd sensual sense belonging to the race) he knows that he will never understand. But a Parliament is composed of a great number of men by no means at the top of the world. When you establish a predominant Parliament, you give over the rule of the country to a despot who has unlimited time--who has unlimited vanity--who has, or believes he has, unlimited comprehension, whose pleasure is in action, whose life is work. There is no limit to the curiosity of Parliament. Sir Robert Peel once suggested that a list should be taken down of the questions asked of him in a single evening; they touched more or less on fifty subjects, and there were a thousand other subjects which by parity of reason might have been added too. As soon as bore A ends, bore B begins. Some inquire from genuine love of knowledge, or from a real wish to improve what they ask about; others to see their name in the papers; others to show a watchful constituency that they are alert; others to get on and to get a place in the Government; others from an accumulation of little motives they could not themselves analyse, or because it is their habit to ask things. And a proper reply must be given. It was said that "Darby Griffith destroyed Lord Palmerston's first Government," and undoubtedly the cheerful impertinence with which in the conceit of victory that Minister answered grave men much hurt his Parliamentary power. There is one thing which no one will permit to be treated lightly--himself. And so there is one too which a sovereign assembly will never permit to be lessened or ridiculed--its own power. The Minister of the day will have to give an account in Parliament of all branches of administration, to say why they act when they do, and why they do not when they don't. Nor is chance inquiry all a public department has most to fear. Fifty members of Parliament may be zealous for a particular policy affecting the department, and fifty others for another policy, and between them they may divide its action, spoil its favourite aims, and prevent its consistently working out either of their own aims. The process is very simple. Every department at times looks as if it was in a scrape; some apparent blunder, perhaps some real blunder, catches the public eye. At once the antagonist Parliamentary sections, which want to act on the department, seize the opportunity. They make speeches, they move for documents, they amass statistics. They declare "that in no other country is such a policy possible as that which the department is pursuing; that it is mediaeval; that it costs money; that it wastes life; that America does the contrary; that Prussia does the contrary". The newspapers follow according to their nature. These bits of administrative scandal amuse the public. Articles on them are very easy to write, easy to read, easy to talk about. They please the vanity of mankind. We think as we read, "Thank God, _I_ am not as that man; _I_ did not send green coffee to the Crimea; _I_ did not send patent cartridge to the common guns, and common cartridge to the breech loaders. _I_ make money; that miserable public functionary only wastes money". As for the defence of the department, no one cares for it or reads it. Naturally at first hearing it does not sound true. The Opposition have the unrestricted selection of the point of attack, and they seldom choose a case in which the department, upon the surface of the matter, seems to be right. The case of first impression will always be that something shameful has happened; that such and such men did die; that this and that gun would not go off; that this or that ship will not sail. All the pretty reading is unfavourable, and all the praise is very dull. Nothing is more helpless than such a department in Parliament if it has no authorised official defender. The wasps of the House fasten on it; here they perceive is something easy to sting, and safe, for it cannot sting in return. The small grain of foundation for complaint germinates, till it becomes a whole crop. At once the Minister of the day is appealed to; he is at the head of the administration, and he must put the errors right, if such they are. The Opposition leader says: "I put it to the right honourable gentleman, the First Lord of the Treasury. He is a man of business. I do not agree with him in his choice of ends, but he is an almost perfect master of methods and means. What he wishes to do he does do. Now I appeal to him whether such gratuitous errors, such fatuous incapacity, are to be permitted in the public service. Perhaps the right honourable gentleman will grant me his attention while I show from the very documents of the departments," etc., etc. What is the Minister to do? He never heard of this matter; he does not care about the matter. Several of the supporters of the Government are interested in the opposition to the department; a grave man, supposed to be wise, mutters, "This is TOO bad". The Secretary of the Treasury tells him, "The House is uneasy. A good many men are shaky. A. B. said yesterday he had been dragged through the dirt four nights following. Indeed I am disposed to think myself that the department has been somewhat lax. Perhaps an inquiry," etc., etc. And upon that the Prime Minister rises and says: "That Her Majesty's Government having given very serious and grave consideration to this most important subject, are not prepared to say that in so complicated a matter the department has been perfectly exempt from error. He does not indeed concur in all the statements which have been made; it is obvious that several of the charges advanced are inconsistent with one another. If A. had really died from eating green coffee on the Tuesday, it is plain he could not have suffered from insufficient medical attendance on the following Thursday. However, on so complex a subject, and one so foreign to common experience, he will not give a judgment. And if the honourable member would be satisfied with having the matter inquired into by a committee of that House, he will be prepared to accede to the suggestion." Possibly the outlying department, distrusting the Ministry, crams a friend. But it is happy indeed if it chances on a judicious friend. The persons most ready to take up that sort of business are benevolent amateurs, very well intentioned, very grave, very respectable, but also rather dull. Their words are good, but about the joints their arguments are weak. They speak very well, but while they are speaking, the decorum is so great that everybody goes away. Such a man is no match for a couple of House of Commons gladiators. They pull what he says to shreds. They show or say that he is wrong about his facts. Then he rises in a fuss and must explain: but in his hurry he mistakes, and cannot find the right paper, and becomes first hot, then confused, next inaudible, and so sits down. Probably he leaves the House with the notion that the defence of the department has broken down, and so the Times announces to all the world as soon as it awakes. Some thinkers have naturally suggested that the heads of departments should as such have the right of speech in the House. But the system when it has been tried has not answered. M. Guizot tells us from his own experience that such a system is not effectual. A great popular assembly has a corporate character; it has its own privileges, prejudices, and notions. And one of these notions is that its own members--the persons it sees every day--whose qualities it knows, whose minds it can test, are those whom it can most trust. A clerk speaking from without would be an unfamiliar object. He would be an outsider. He would speak under suspicion; he would speak without dignity. Very often he would speak as a victim. All the bores of the House would be upon him. He would be put upon examination. He would have to answer interrogatories. He would be put through the figures and cross-questioned in detail. The whole effect of what he said would be lost in quaestiunculae and hidden in a controversial detritus. Again, such a person would rarely speak with great ability. He would speak as a scribe. His habits must have been formed in the quiet of an office: he is used to red tape, placidity, and the respect of subordinates. Such a person will hardly ever be able to stand the hurly-burly of a public assembly. He will lose his head--he will say what he should not. He will get hot and red; he will feel he is a sort of culprit. After being used to the flattering deference of deferential subordinates, he will be pestered by fuss and confounded by invective. He will hate the House as naturally as the House does not like him. He will be an incompetent speaker addressing a hostile audience. And what is more, an outside administrator addressing Parliament can move Parliament only by the goodness of his arguments. He has no votes to back them up with. He is sure to be at chronic war with some active minority of assailants or others. The natural mode in which a department is improved on great points and new points is by external suggestion; the worse foes of a department are the plausible errors which the most visible facts suggest, and which only half visible facts confute. Both the good ideas and the bad ideas are sure to find advocates first in the press and then in Parliament. Against these a permanent clerk would have to contend by argument alone. The Minister, the head of the Parliamentary government, will not care for him. The Minister will say in some undress soliloquy, "These permanent 'fellows' must look after themselves. I cannot be bothered. I have only a majority of nine, and a very shaky majority, too. I cannot afford to make enemies for those whom I did not appoint. They did nothing for me, and I can do nothing for them." And if the permanent clerk come to ask his help, he will say in decorous language, "I am sure that if the department can evince to the satisfaction of Parliament that its past management has been such as the public interests require, no one will be more gratified than myself. I am not aware if it will be in my power to attend in my place on Monday; but if I can be so fortunate, I shall listen to your official statement with my very best attention." And so the permanent public servant will be teased by the wits, oppressed by the bores, and massacred by the innovators of Parliament. The incessant tyranny of Parliament over the public offices is prevented and can only be prevented by the appointment of a Parliamentary head, connected by close ties with the present Ministry and the ruling party in Parliament The Parliamentary head is a protecting machine. He and the friends he brings stand between the department and the busybodies and crotchet-makers of the House and the country. So long as at any moment the policy of an office could be altered by chance votes in either House of Parliament, there is no security for any consistency. Our guns and our ships are not, perhaps, very good now. But they would be much worse if any thirty or forty advocates for this gun or that gun could make a motion in Parliament, beat the department, and get their ships or their guns adopted. The "Black Breech Ordnance Company" and the "Adamantine Ship Company" would soon find representatives in Parliament, if forty or fifty members would get the national custom for their rubbish. But this result is now prevented by the Parliamentary head of the department. As soon as the Opposition begins the attack, he looks up his means of defence. He studies the subject, compiles his arguments, and builds little piles of statistics, which he hopes will have some effect. He has his reputation at stake, and he wishes to show that he is worth his present place, and fit for future promotion. He is well known, perhaps liked, by the House--at any rate the House attends to him; he is one of the regular speakers whom they hear and heed. He is sure to be able to get himself heard, and he is sure to make the best defence he can. And after he has settled his speech he loiters up to the Secretary of the Treasury, and says quietly, "They have got a motion against me on Tuesday, you know. I hope you will have your men here. A lot of fellows have crotchets, and though they do not agree a bit with one another, they are all against the department; they will all vote for the inquiry." And the Secretary answers, "Tuesday, you say; no (looking at a paper), I do not think it will come on Tuesday. There is Higgins on Education. He is good for a long time. But anyhow it shall be all right." And then he glides about and speaks a word here and a word there, in consequence of which, when the anti-official motion is made, a considerable array of steady, grave faces sits behind the Treasury Bench--nay, possibly a rising man who sits in outlying independence below the gangway rises to defend the transaction; the department wins by thirty-three, and the management of that business pursues its steady way. This contrast is no fancy picture. The experiment of conducting the administration of a public department by an independent unsheltered authority has often been tried, and always failed. Parliament always poked at it, till it made it impossible. The most remarkable is that of the Poor Law. The administration of that law is not now very good, but it is not too much to say that almost the whole of its goodness has been preserved by its having an official and party protector in the House of Commons. Without that contrivance we should have drifted back into the errors of the old Poor Law, and superadded to them the present meanness and incompetence in our large towns. All would have been given up to local management. Parliament would have interfered with the central board till it made it impotent, and the local authorities would have been despotic. The first administration of the new Poor Law was by "Commissioners"--the three kings of Somerset House, as they were called. The system was certainly not tried in untrustworthy hands. At the crisis Mr. Chadwick, one of the most active and best administrators in England, was the secretary and the motive power: the principal Commissioner was Sir George Lewis, perhaps the best selective administrator of our time. But the House of Commons would not let the Commission alone. For a long time it was defended because the Whigs had made the Commission, and felt bound as a party to protect it. The new law started upon a certain intellectual impetus, and till that was spent its administration was supported in a rickety existence by an abnormal strength. But afterwards the Commissioners were left to their intrinsic weakness. There were members for all the localities, but there were none for them. There were members for every crotchet and corrupt interest, but there were none for them. The rural guardians would have liked to eke out wages by rates; the city guardians hated control, and hated to spend money. The Commission had to be dissolved, and a Parliamentary head was added; the result is not perfect, but it is an amazing improvement on what would have happened in the old system. The new system has not worked well because the central authority has too little power; but under the previous system the central authority was getting to have, and by this time would have had, no power at all. And if Sir George Lewis and Mr. Chadwick could not maintain an outlying department in the face of Parliament, how unlikely that an inferior compound of discretion and activity will ever maintain it! These reasonings show why a changing Parliamentary head, a head changing as the Ministry changes, is a necessity of good Parliamentary government, and there is happily a natural provision that there will be such heads. Party organisation ensures it. In America, where on account of the fixedly recurring presidential election, and the perpetual minor elections, party organisation is much more effectually organised than anywhere else, the effect on the offices is tremendous. Every office is filled anew at every presidential change, at least every change which brings in a new party. Not only the greatest posts, as in England, but the minor posts change their occupants. The scale of the financial operations of the Federal government is now so increased that most likely in that department, at least, there must in future remain a permanent element of great efficiency; a revenue of 90,000,000 pounds sterling cannot be collected and expended with a trifling and changing staff. But till now the Americans have tried to get on not only with changing heads to a bureaucracy, as the English, but without any stable bureaucracy at all. They have facilities for trying it which no one else has. All Americans can administer, and the number of them really fit to be in succession lawyers, financiers, or military managers is wonderful; they need not be as afraid of a change of all their officials as European countries must, for the incoming substitutes are sure to be much better there than here; and they do not fear, as we English fear, that the outgoing officials will be left destitute in middle life, with no hope for the future and no recompense for the past, for in America (whatever may be the cause of it) opportunities are numberless, and a man who is ruined by being "off the rails" in England soon there gets on another line. The Americans will probably to some extent modify their past system of total administrative cataclysms, but their very existence in the only competing form of free government should prepare us for and make us patient with the mild transitions of Parliamentary government. These arguments will, I think, seem conclusive to almost every one; but, at this moment, many people will meet them thus: they will say, "You prove what we do not deny, that this system of periodical change is a necessary ingredient in Parliamentary government, but you have not proved what we do deny, that this change is a good thing. Parliamentary government may have that effect, among others, for anything we care: we maintain merely that it is a defect." In answer, I think it may be shown not, indeed, that this precise change is necessary to a permanently perfect administration, but that some analogous change, some change of the same species, is so. At this moment, in England, there is a sort of leaning towards bureaucracy--at least, among writers and talkers. There is a seizure of partiality to it. The English people do not easily change their rooted notions, but they have many unrooted notions. Any great European event is sure for a moment to excite a sort of twinge of conversion to something or other. Just now, the triumph of the Prussians--the bureaucratic people, as is believed, par excellence--has excited a kind of admiration for bureaucracy, which a few years since we should have thought impossible. I do not presume to criticise the Prussian bureaucracy of my own knowledge; it certainly is not a pleasant institution for foreigners to come across, though agreeableness to travellers is but of very second-rate importance. But it is quite certain that the Prussian bureaucracy, though we, for a moment, half admire it at a distance, does not permanently please the most intelligent and liberal Prussians at home. What are two among the principal aims of the Fortschritt Partei--the party of progress--as Mr. Grant Duff, the most accurate and philosophical of our describers, delineates them? First, "a liberal system, conscientiously carried out in all the details of the administration, with a view to avoiding the scandals now of frequent occurrence, when an obstinate or bigoted official sets at defiance the liberal initiations of the Government, trusting to backstairs influence". Second, "an easy method of bringing to justice guilty officials, who are at present, as in France, in all conflicts with simple citizens, like men armed cap-a-pie fighting with defenceless". A system against which the most intelligent native liberals bring even with colour of reason such grave objections, is a dangerous model for foreign imitation. The defects of bureaucracy are, indeed, well known. It is a form of Government which has been tried often enough in the world, and it is easy to show what, human nature being what it in the long run is, the defects of a bureaucracy must in the long run be. It is an inevitable defect, that bureaucrats will care more for routine than for results; or, as Burke put it, "that they will think the substance of business not to be much more important than the forms of it". Their whole education and all the habit of their lives make them do so. They are brought young into the particular part of the public service to which they are attached; they are occupied for years in learning its forms--afterwards, for years too, in applying these forms to trifling matters. They are, to use the phrase of an old writer, "but the tailors of business; they cut the clothes, but they do not find the body". Men so trained must come to think the routine of business not a means, but an end--to imagine the elaborate machinery of which they form a part, and from which they derive their dignity, to be a grand and achieved result, not a working and changeable instrument. But in a miscellaneous world, there is now one evil and now another. The very means which best helped you yesterday, may very likely be those which most impede you to-morrow--you may want to do a different thing to-morrow, and all your accumulation of means for yesterday's work is but an obstacle to the new work. The Prussian military system is the theme of popular wonder now, yet it sixty years pointed the moral against form. We have all heard the saying that "Frederic the Great lost the battle of Jena". It was the system which he had established--a good system for his wants and his times--which, blindly adhered to, and continued into a different age, put to strive with new competitors, brought his country to ruin. The "dead and formal" Prussian system was then contrasted with the "living" French system--the sudden outcome of the new explosive democracy. The system which now exists is the product of the reaction; and the history of its predecessor is a warning what its future history may be too. It is not more celebrated for its day than Frederic's for his, and principle teaches that a bureaucracy, elated by sudden success, and marvelling at its own merit, is the most unimproving and shallow of Governments. Not only does a bureaucracy thus tend to under-government, in point of quality; it tends to over-government, in point of quantity. The trained official hates the rude, untrained public. He thinks that they are stupid, ignorant, reckless--that they cannot tell their own interest--that they should have the leave of the office before they do anything. Protection is the natural inborn creed of every official body; free trade is an extrinsic idea alien to its notions, and hardly to be assimilated with life; and it is easy to see how an accomplished critic, used to a free and active life, could thus describe the official. "Every imaginable and real social interest," says Mr. Laing, "religion, education, law, police, every branch of public or private business, personal liberty to move from place to place, even from parish to parish within the same jurisdiction; liberty to engage in any branch of trade or industry, on a small or large scale, all the objects, in short, in which body, mind, and capital can be employed in civilised society, were gradually laid hold of for the employment and support of functionaries, were centralised in bureaux, were superintended, licensed, inspected, reported upon, and interfered with by a host of officials scattered over the land, and maintained at the public expense, yet with no conceivable utility in their duties. They are not, however, gentlemen at large, enjoying salary without service. They are under a semi-military discipline. In Bavaria, for instance, the superior civil functionary can place his inferior functionary under house-arrest, for neglect of duty, or other offence against civil functionary discipline. In Wurtemberg, the functionary cannot marry without leave from his superior. Voltaire says, somewhere, that, 'the art of government is to make two-thirds of a nation pay all it possibly can pay for the benefit of the other third'. This is realised in Germany by the functionary system. The functionaries are not there for the benefit of the people, but the people for the benefit of the functionaries. All this machinery of functionarism, with its numerous ranks and gradations in every district, filled with a staff of clerks and expectants in every department looking for employment, appointments, or promotions, was intended to be a new support of the throne in the new social state of the Continent; a third class, in connection with the people by their various official duties of interference in all public or private affairs, yet attached by their interests to the kingly power. The Beamptenstand, or functionary class, was to be the equivalent to the class of nobility, gentry, capitalists, and men of larger landed property than the peasant-proprietors, and was to make up in numbers for the want of individual weight and influence. In France, at the expulsion of Louis Philippe, the civil functionaries were stated to amount to 807,030 individuals. This civil army was more than double of the military. In Germany, this class is necessarily more numerous in proportion to the population, the landwehr system imposing many more restrictions than the conscription on the free action of the people, and requiring more officials to manage it, and the semi-feudal jurisdictions and forms of law requiring much more writing and intricate forms of procedure before the courts than the Code Napoleon." A bureaucracy is sure to think that its duty is to augment official power, official business, or official members, rather than to leave free the energies of mankind; it overdoes the quantity of government, as well as impairs its quality. The truth is, that a skilled bureaucracy--a bureaucracy trained from early life to its special avocation--is, though it boasts of an appearance of science, quite inconsistent with the true principles of the art of business. That art has not yet been condensed into precepts, but a great many experiments have been made, and a vast floating vapour of knowledge floats through society. One of the most sure principles is, that success depends on a due mixture of special and non-special minds--of minds which attend to the means, and of minds which attend to the end. The success of the great joint-stock banks of London--the most remarkable achievement of recent business--has been an example of the use of this mixture. These banks are managed by a board of persons mostly NOT trained to the business, supplemented by, and annexed to, a body of specially trained officers, who have been bred to banking all their lives. These mixed banks have quite beaten the old banks, composed exclusively of pure bankers; it is found that the board of directors has greater and more flexible knowledge--more insight into the wants of a commercial community--knows when to lend and when not to lend, better than the old bankers, who had never looked at life, except out of the bank windows. Just so the most successful railways in Europe have been conducted--not by engineers or traffic managers--but by capitalists; by men of a certain business culture, if of no other. These capitalists buy and use the services of skilled managers, as the unlearned attorney buys and uses the services of the skilled barrister, and manage far better than any of the different sorts of special men under them. They combine these different specialities--make it clear where the realm of one ends and that of the other begins, and add to it a wide knowledge of large affairs, which no special man can have, and which is only gained by diversified action. But this utility of leading minds used to generalise, and acting upon various materials, is entirely dependent upon their position. They must not be at the bottom--they must not even be half way up--they must be at the top. A merchant's clerk would be a child at a bank counter; but the merchant himself could, very likely, give good, clear, and useful advice in a bank court. The merchant's clerk would be equally at sea in a railway office, but the merchant himself could give good advice, very likely, at a board of directors. The summits (if I may so say) of the various kinds of business are, like the tops of mountains, much more alike than the parts below--the bare principles are much the same; it is only the rich variegated details of the lower strata that so contrast with one another. But it needs travelling to know that the summits ARE the same. Those who live on one mountain believe that THEIR mountain is wholly unlike all others. The application of this principle to Parliamentary government is very plain; it shows at once that the intrusion from without upon an office of an exterior head of the office, is not an evil, but that, on the contrary, it is essential to the perfection of that office. If it is left to itself, the office will become technical, self-absorbed, self-multiplying. It will be likely to overlook the end in the means; it will fail from narrowness of mind; it will be eager in seeming to do; it will be idle in real doing. An extrinsic chief is the fit corrector of such errors. He can say to the permanent chief, skilled in the forms and pompous with the memories of his office, "Will you, Sir, explain to me how this regulation conduces to the end in view? According to the natural view of things, the applicant should state the whole of his wishes to one clerk on one paper; you make him say it to five clerks on five papers." Or, again, "Does it not appear to you, Sir, that the reason of this formality is extinct? When we were building wood ships, it was quite right to have such precautions against fire; but now that we are building iron ships," etc., etc. If a junior clerk asked these questions, he would be "pooh-poohed!" It is only the head of an office that can get them answered. It is he, and he only, that brings the rubbish of office to the burning-glass of sense. The immense importance of such a fresh mind is greatest in a country where business changes most. A dead, inactive, agricultural country may be governed by an unalterable bureau for years and years, and no harm come of it. If a wise man arranged the bureau rightly in the beginning, it may run rightly a long time. But if the country be a progressive, eager, changing one, soon the bureau will either cramp improvement, or be destroyed itself. This conception of the use of a Parliamentary head shows how wrong is the obvious notion which regards him as the principal administrator of his office. The late Sir George Lewis used to be fond of explaining this subject. He had every means of knowing. He was bred in the permanent civil service. He was a very successful Chancellor of the Exchequer, a very successful Home Secretary, and he died Minister for War. He used to say, "It is not the business of a Cabinet Minister to work his department. His business is to see that it is properly worked. If he does much, he is probably doing harm. The permanent staff of the office can do what he chooses to do much better, or if they cannot, they ought to be removed. He is only a bird of passage, and cannot compete with those who are in the office all their lives round." Sir George Lewis was a perfect Parliamentary head of an office, so far as that head is to be a keen critic and rational corrector of it. But Sir George Lewis was not perfect; he was not even an average good head in another respect. The use of a fresh mind applied to the official mind is not only a corrective use, it is also an animating use. A public department is very apt to be dead to what is wanting for a great occasion till the occasion is past. The vague public mind will appreciate some signal duty before the precise, occupied administration perceives it. The Duke of Newcastle was of this use at least in the Crimean War. He roused up his department, though when roused it could not act. A perfect Parliamentary Minister would be one who should add the animating capacity of the Duke of Newcastle to the accumulated sense, the detective instinct, and the laissez faire habit of Sir George Lewis. As soon as we take the true view of Parliamentary office we shall perceive that, fairly, frequent change in the official is an advantage, not a mistake. If his function is to bring a representative of outside sense and outside animation in contact with the inside world, he ought often to be changed. No man is a perfect representative of outside sense. "There is some one," says the true French saying, "who is more able than Talleyrand, more able than Napoleon. Cest tout le monde." That many-sided sense finds no microcosm in any single individual. Still less are the critical function and the animating function of a Parliamentary Minister likely to be perfectly exercised by one and the same man. Impelling power and restraining wisdom are as opposite as any two things, and are rarely found together. And even if the natural mind of the Parliamentary Minister was perfect, long contact with the office would destroy his use. Inevitably he would accept the ways of office, think its thoughts, live its life. The "dyer's hand would be subdued to what it works in". If the function of a Parliamentary Minister is to be an outsider to his office, we must not choose one who, by habit, thought, and life, is acclimatised to its ways. There is every reason to expect that a Parliamentary statesman will be a man of quite sufficient intelligence, quite enough various knowledge, quite enough miscellaneous experience, to represent effectually general sense in opposition to bureaucratic sense. Most Cabinet Ministers in charge of considerable departments are men of superior ability; I have heard an eminent living statesman of long experience say that in his time he only knew one instance to the contrary. And there is the best protection that it shall be so. A considerable Cabinet Minister has to defend his department in the face of mankind; and though distant observers and sharp writers may depreciate it, this is a very difficult thing. A fool, who has publicly to explain great affairs, who has publicly to answer detective questions, who has publicly to argue against able and quick opponents, must soon be shown to be a fool. The very nature of Parliamentary government answers for the discovery of substantial incompetence. At any rate, none of the competing forms of government have nearly so effectual a procedure for putting a good untechnical Minister to correct and impel the routine ones. There are but four important forms of government in the present state of the world--the Parliamentary, the Presidential, the Hereditary, and the Dictatorial, or Revolutionary. Of these I have shown that, as now worked in America, the Presidential form of government is incompatible with a skilled bureaucracy. If the whole official class change when a new party goes out or comes in, a good official system is impossible. Even if more officials should be permanent in America than now, still, vast numbers will always be changed. The whole issue is based on a single election--on the choice of President; by that internecine conflict all else is won or lost. The managers of the contest have that greatest possible facility in using what I may call patronage--bribery. Everybody knows that, as a fact, the President can give what places he likes to what persons, and when his friends tell A. B., "If we win, C. D. shall be turned out of Utica Post-office, and you, A. B., shall have it," A. B. believes it, and is justified in doing so. But no individual member of Parliament can promise place effectually. HE may not be able to give the places. His party may come in, but he will be powerless. In the United States party intensity is aggravated by concentrating an overwhelming importance on a single contest, and the efficiency of promised offices as a means of corruption is augmented, because the victor can give what he likes to whom he likes. Nor is this the only defect of a Presidential government in reference to the choice of officers. The President has the principal anomaly of a Parliamentary government without having its corrective. At each change of party the President distributes (as here) the principal offices to his principal supporters. But he has an opportunity for singular favouritism; the Minister lurks in the office; he need do nothing in public; he need not show for years whether he is a fool or wise. The nation can tell what a Parliamentary member is by the open test of Parliament; but no one, save from actual contact, or by rare position, can tell anything certain of a Presidential Minister. The case of a Minister under an hereditary form of government is yet worse. The hereditary king may be weak; may be under the government of women; may appoint a Minister from childish motives; may remove one from absurd whims. There is no security that an hereditary king will be competent to choose a good chief Minister, and thousands of such kings have chosen millions of bad Ministers. By the Dictatorial, or Revolutionary, sort of government, I mean that very important sort in which the sovereign--the absolute sovereign--is selected by insurrection. In theory, one would certainly have hoped that by this time such a crude elective machinery would have been reduced to a secondary part. But, in fact, the greatest nation (or, perhaps, after the exploits of Bismarck, I should say one of the two greatest nations of the Continent) vacillates between the Revolutionary and the Parliamentary, and now is governed under the Revolutionary form. France elects its ruler in the streets of Paris. Flatterers may suggest that the democratic empire will become hereditary, but close observers know that it cannot. The idea of the Government is that the Emperor represents the people in capacity, in judgment, in instinct. But no family through generations can have sufficient, or half sufficient, mind to do so. The representative despot must be chosen by fighting, as Napoleon I. and Napoleon III. were chosen. And such a Government is likely, whatever be its other defects, to have a far better and abler administration than any other Government. The head of the Government must be a man of the most consummate ability. He cannot keep his place, he can hardly keep his life, unless he is. He is sure to be active, because he knows that his power, and perhaps his head, may be lost if he be negligent. The whole frame of his State is strained to keep down revolution. The most difficult of all political problems is to be solved--the people are to be at once thoroughly restrained and thoroughly pleased. The executive must be like a steel shirt of the Middle Ages--extremely hard and extremely flexible. It must give way to attractive novelties which do not hurt; it must resist such as are dangerous; it must maintain old things which are good and fitting; it must alter such as cramp and give pain. The dictator dare not appoint a bad Minister if he would. I admit that such a despot is a better selector of administrators than a Parliament; that he will know how to mix fresh minds and used minds better; that he is under a stronger motive to combine them well; that here is to be seen the best of all choosers with the keenest motives to choose. But I need not prove in England that the revolutionary selection of rulers obtains administrative efficiency at a price altogether transcending its value; that it shocks credit by its catastrophes; that for intervals it does not protect property or life; that it maintains an undergrowth of fear through all prosperity; that it may take years to find the true capable despot; that the interregna of the incapable are full of all evil; that the fit despot may die as soon as found; that the good administration and all else hang by the thread of his life. But if, with the exception of this terrible Revolutionary government, a Parliamentary government upon principle surpasses all its competitors in administrative efficiency, why is it that our English Government, which is beyond comparison the best of Parliamentary governments, is not celebrated through the world for administrative efficiency? It is noted for many things, why is it not noted for that? Why, according to popular belief is it rather characterised by the very contrary? One great reason of the diffused impression is, that the English Government attempts so much. Our military system is that which is most attacked. Objectors say we spend much more on our army than the great military monarchies, and yet with an inferior result. But, then, what we attempt is incalculably more difficult. The continental monarchies have only to defend compact European territories by the many soldiers whom they force to fight; the English try to defend without any compulsion--only by such soldiers as they persuade to serve--territories far surpassing all Europe in magnitude, and situated all over the habitable globe. Our Horse Guards and War Office may not be at all perfect--I believe they are not: but if they had sufficient recruits selected by force of law--if they had, as in Prussia, the absolute command of each man's time for a few years, and the right to call him out afterwards when they liked, we should be much surprised at the sudden ease and quickness with which they did things. I have no doubt too that any accomplished soldier of the Continent would reject as impossible what we after a fashion effect. He would not attempt to defend a vast scattered empire, with many islands, a long frontier line in every continent, and a very tempting bit of plunder at the centre, by mere volunteer recruits, who mostly come from the worst class of the people--whom the Great Duke called the "scum of the earth"--who come in uncertain numbers year by year--who by some political accident may not come in adequate numbers, or at all, in the year we need them most. Our War Office attempts what foreign War Offices (perhaps rightly) would not try at; their officers have means of incalculable force denied to ours, though ours is set to harder tasks. Again, the English navy undertakes to defend a line of coast and a set of dependencies far surpassing those of any continental power. And the extent of our operations is a singular difficulty just now. It requires us to keep a large stock of ships and arms. But on the other hand, there are most important reasons why we should not keep much. The naval art and the military art are both in a state of transition; the last discovery of to-day is out of date, and superseded by an antagonistic discovery to-morrow. Any large accumulation of vessels or guns is sure to contain much that will be useless, unfitting, antediluvian, when it comes to be tried. There are two cries against the Admiralty which go on side by side: one says, "We have not ships enough, no 'relief' ships, no NAVY, to tell the truth"; the other cry says, "We have all the wrong ships, all the wrong guns, and nothing but the wrong; in their foolish constructive mania the Admiralty have been building when they ought to have been waiting; they have heaped a curious museum of exploded inventions, but they have given us nothing serviceable". The two cries for opposite policies go on together, and blacken our executive together, though each is a defence of the executive against the other. Again, the Home Department in England struggles with difficulties of which abroad they have long got rid. We love independent "local authorities," little centres of outlying authority. When the metropolitan executive most wishes to act, it cannot act effectually because these lesser bodies hesitate, deliberate, or even disobey. But local independence has no necessary connection with Parliamentary government. The degree of local freedom desirable in a country varies according to many circumstances, and a Parliamentary government may consist with any degree of it. We certainly ought not to debit Parliamentary government as a general and applicable polity with the particular vices of the guardians of the poor in England, though it is so debited every day. Again, as our administration has in England this peculiar difficulty, so on the other hand foreign competing administrations have a peculiar advantage. Abroad a man under Government is a superior being: he is higher than the rest of the world; he is envied by almost all of it. This gives the Government the easy pick of the elite of the nation. All clever people are eager to be under Government, and are hardly to be satisfied elsewhere. But in England there is no such superiority, and the English have no such feeling. We do not respect a stamp-office clerk, or an exciseman's assistant. A pursy grocer considers he is much above either. Our Government cannot buy for minor clerks the best ability of the nation in the cheap currency of pure honour, and no Government is rich enough to buy very much of it in money. Our mercantile opportunities allure away the most ambitious minds. The foreign bureaux are filled with a selection from the ablest men of the nation, but only a very few of the best men approach the English offices. But these are neither the only nor even the principal reasons why our public administration is not so good as, according to principle and to the unimpeded effects of Parliamentary government, it should be. There are two great causes at work, which in their consequences run out into many details, but which in their fundamental nature may be briefly described. The first of these causes is our ignorance. No polity can get out of a nation more than there is in the nation. A free government is essentially a government by persuasion; and as are the people to be persuaded, and as are the persuaders, so will that government be. On many parts of our administration the effect of our extreme ignorance is at once plain. The foreign policy of England has for many years been, according to the judgment now in vogue, inconsequent, fruitless, casual; aiming at no distinct pre-imagined end, based on no steadily pre-conceived principle. I have not room to discuss with how much or how little abatement this decisive censure should be accepted. However, I entirely concede that our recent foreign policy has been open to very grave and serious blame. But would it not have been a miracle if the English people, directing their own policy, and being what they are, had directed a good policy? Are they not above all nations divided from the rest of the world, insular both in situation and in mind, both for good and for evil? Are they not out of the current of common European causes and affairs? Are they not a race contemptuous of others? Are they not a race with no special education or culture as to the modern world, and too often despising such culture? Who could expect such a people to comprehend the new and strange events of foreign places? So far from wondering that the English Parliament has been inefficient in foreign policy, I think it is wonderful, and another sign of the rude, vague imagination that is at the bottom of our people, that we have done so well as we have. Again, the very conception of the English Constitution, as distinguished from a purely Parliamentary Constitution is, that it contains "dignified" parts--parts, that is, retained, not for intrinsic use, but from their imaginative attraction upon an uncultured and rude population. All such elements tend to diminish simple efficiency. They are like the additional and solely-ornamental wheels introduced into the clocks of the Middle Ages, which tell the then age of the moon or the supreme constellation; which make little men or birds come out and in theatrically. All such ornamental work is a source of friction and error; it prevents the time being marked accurately; each new wheel is a new source of imperfection. So if authority is given to a person, not on account of his working fitness, but on account of his imaginative efficiency, he will commonly impair good administration. He may do something better than good work of detail, but will spoil good work of detail. The English aristocracy is often of this sort. It has an influence over the people of vast value still, and of infinite value formerly. But no man would select the cadets of an aristocratic house as desirable administrators. They have peculiar disadvantages in the acquisition of business knowledge, business training, and business habits, and they have no peculiar advantages. Our middle class, too, is very unfit to give us the administrators we ought to have. I cannot now discuss whether all that is said against our education is well grounded; it is called by an excellent judge "pretentious, insufficient, and unsound". But I will say that it does not fit men to be men of business as it ought to fit them. Till lately the very simple attainments and habits necessary for a banker's clerk had a scarcity-value. The sort of education which fits a man for the higher posts of practical life is still very rare; there is not even a good agreement as to what it is. Our public officers cannot be as good as the corresponding officers of some foreign nations till our business education is as good as theirs.[9] [9] I am happy to state that this evil is much diminishing. The improvement of school education of the middle class in the last twenty-five years is marvellous. But strong as is our ignorance in deteriorating our administration, another cause is stronger still. There are but two foreign administrations probably better than ours, and both these have had something which we have not had. Theirs in both cases were arranged by a man of genius, after careful forethought, and upon a special design. Napoleon built upon a clear stage which the French Revolution bequeathed him. The originality once ascribed to his edifice was indeed untrue; Tocqueville and Lavergne have shown that he did but run up a conspicuous structure in imitation of a latent one before concealed by the mediaeval complexities of the old regime. But what we are concerned with now is, not Napoleon's originality, but his work. He undoubtedly settled the administration of France upon an effective, consistent, and enduring system; the succeeding governments have but worked the mechanism they inherited from him. Frederick the Great did the same in the new monarchy of Prussia. Both the French system and the Prussian are new machines, made in civilised times to do their appropriate work. The English offices have never, since they were made, been arranged with any reference to one another; or rather they were never made, but grew as each could. The sort of free trade which prevailed in public institutions in the English Middle Ages is very curious. Our three courts of law--the Queen's Bench, the Common Pleas, and the Exchequer--for the sake of the fees extended an originally contracted sphere into the entire sphere of litigation. Boni judicis est ampliare jursdictionem, went the old saying; or, in English, "It is the mark of a good judge to augment the fees of his Court," his own income, and the income of his subordinates. The central administration, the Treasury, never asked any account of the moneys the courts thus received; so long as it was not asked to pay anything, it was satisfied. Only last year one of the many remnants of this system cropped up, to the wonder of the public. A clerk in the Patent Office stole some fees, and naturally the men of the nineteenth century thought our principal Finance Minister, the Chancellor of the Exchequer, would be, as in France, responsible for it. But the English law was different somehow. The Patent Office was under the Lord Chancellor, and the Court of Chancery is one of the multitude of our institutions which owe their existence to free competition, and so it was the Lord Chancellor's business to look after the fees, which of course, as an occupied judge, he could not. A certain Act of Parliament did indeed require that the fees of the Patent Office should be paid into the "Exchequer"; and, again, the "Chancellor of the Exchequer" was thought to be responsible in the matter, but only by those who did not know. According to our system the Chancellor of the Exchequer is the enemy of the Exchequer; a whole series of enactments try to protect it from him. Until a few months ago there was a very lucrative sinecure called the "Comptrollership of the Exchequer," designed to guard the Exchequer against its Chancellor; and the last holder, Lord Monteagle, used to say he was the pivot of the English Constitution. I have not room to explain what he meant, and it is not needful; what is to the purpose is that, by an inherited series of historical complexities, a defaulting clerk in an office of no litigation was not under natural authority, the Finance Minister, but under a far-away judge who had never heard of him. The whole office of the Lord Chancellor is a heap of anomalies. He is a judge, and it is contrary to obvious principle that any part of administration should be entrusted to a judge; it is of very grave moment that the administration of justice should be kept clear of any sinister temptations. Yet the Lord Chancellor, our chief judge, sits in the Cabinet, and makes party speeches in the Lords. Lord Lyndhurst was a principal Tory politician, and yet he presided in the O'Connell case. Lord Westbury was in chronic wrangle with the bishops, but he gave judgment upon "Essays and Reviews". In truth, the Lord Chancellor became a Cabinet Minister, because, being near the person of the sovereign, he was high in court precedence, and not upon a political theory wrong or right. A friend once told me that an intelligent Italian asked him about the principal English officers, and that he was very puzzled to explain their duties, and especially to explain the relation of their duties to their titles. I do not remember all the cases, but I can recollect that the Italian could not comprehend why the First "Lord of the Treasury" had as a rule nothing to do with the Treasury, or why the "Woods and Forests" looked after the sewerage of towns. This conversation was years before the cattle plague, but I should like to have heard the reasons why the Privy Council Office had charge of that malady. Of course one could give an historical reason, but I mean an administrative reason a reason which would show, not how it came to have the duty, but why in future it should keep it. But the unsystematic and casual arrangement of our public offices is not more striking than their difference of arrangement for the one purpose they have in common. They all, being under the ultimate direction of a Parliamentary official, ought to have the best means of bringing the whole of the higher concerns of the office before that official. When the fresh mind rules, the fresh mind requires to be informed. And most business being rather alike, the machinery for bringing it before the extrinsic chief ought, for the most part, to be similar: at any rate, where it is different, it ought to be different upon reason; and where it is similar, similar upon reason. Yet there are almost no two offices which are exactly alike in the defined relations of the permanent official to the Parliamentary chief. Let us see. The ARMY AND NAVY are the most similar in nature, yet there is in the army a permanent outside office, called the Horse Guards, to which there is nothing else like. In the navy, there is a curious anomaly--a Board of Admiralty, also changing with every Government, which is to instruct the First Lord in what he does not know. The relations between the First Lord and the Board have not always been easily intelligible, and those between the War Office and the Horse Guards are in extreme confusion. Even now a Parliamentary paper relating to them has just been presented to the House of Commons, which says the fundamental and ruling document cannot be traced beyond the possession of Sir George Lewis, who was Secretary for War three years since; and the confused details are endless, as they must be in a chronic contention of offices. At the Board of Trade there is only the hypothesis of a Board; it has long ceased to exist. Even the President and Vice-President do not regularly meet for the transaction of affairs. The patent of the latter is only to transact business in the absence of the President, and if the two are not intimate, and the President chooses to act himself, the Vice-President sees no papers, and does nothing. At the Treasury the shadow of a Board exists, but its members have no power, and are the very officials whom Canning said existed to make a House, to keep a House, and to cheer the Ministers. The India Office has a fixed "Council"; but the Colonial Office which rules over our other dependencies and colonies, has not, and never had, the vestige of a council. Any of these varied Constitutions may be right, but all of them can scarcely be right. In truth the real constitution of a permanent office to be ruled by a permanent chief has been discussed only once in England: that case was a peculiar and anomalous one, and the decision then taken was dubious. A new India Office, when the East India Company was abolished, had to be made. The late Mr. James Wilson, a consummate judge of administrative affairs, then maintained that no council ought to be appointed eo nomine, but that the true Council of a Cabinet Minister was a certain number of highly paid, much occupied, responsible secretaries, whom the Minister could consult either separately or together, as, and when, he chose. Such secretaries, Mr. Wilson maintained, must be able, for no Minister will sacrifice his own convenience, and endanger his own reputation by appointing a fool to a post so near himself, and where he can do much harm. A member of a Board may easily be incompetent; if some other members and the chairmen are able, the addition of one or two stupid men will not be felt; they will receive their salaries and do nothing. But a permanent under-secretary, charged with a real control over much important business, must be able, or his superior will be blamed, and there will be "a scrape in Parliament". I cannot here discuss, nor am I competent to discuss, the best mode of composing public offices, and of adjusting them to a Parliamentary head. There ought to be on record skilled evidence on the subject before a person without any specific experience can to any purpose think about it. But I may observe that the plan which Mr. Wilson suggested is that followed in the most successful part of our administration, the "Ways and Means" part. When the Chancellor of the Exchequer prepares a budget, he requires from the responsible heads of the revenue department their estimates of the public revenue upon the preliminary hypothesis that no change is made, but that last year's taxes will continue; if, afterwards, he thinks of making an alteration, he requires a report on that too. If he has to renew Exchequer bills, or operate anyhow in the City, he takes the opinion, oral or written, of the ablest and most responsible person at the National Debt Office, and the ablest and most responsible at the Treasury. Mr. Gladstone, by far the greatest Chancellor of the Exchequer of this generation, one of the very greatest of any generation, has often gone out of his way to express his obligation to these responsible skilled advisers. The more a man knows himself, the more habituated he is to action in general, the more sure he is to take and to value responsible counsel emanating from ability and suggested by experience. That this principle brings good fruit is certain. We have, by unequivocal admission, the best budget in the world. Why should not the rest of our administration be as good if we did but apply the same method to it? I leave this to stand as it was originally written since it does not profess to rest on my own knowledge, and only offers a suggestion on good authority. Recent experience seems, however, to show that in all great administrative departments there ought to be some one permanent responsible head through whom the changing Parliamentary chief always acts, from whom he learns everything, and to whom he communicates everything. The daily work of the Exchequer is a trifle compared with that of the Admiralty or the Home Office, and therefore a single principal head is not there so necessary. But the preponderance of evidence at present is that in all offices of very great work some one such head is essential. NO. VII. ITS SUPPOSED CHECKS AND BALANCES. In a former essay I devoted an elaborate discussion to the comparison of the royal and unroyal form of Parliamentary government. I showed that at the formation of a Ministry, and during the continuance of a Ministry, a really sagacious monarch might be of rare use. I ascertained that it was a mistake to fancy that at such times a constitutional monarch had no rule and no duties. But I proved likewise that the temper, the disposition, and the faculties then needful to fit a constitutional monarch for usefulness were very rare, at least as rare as the faculties of a great absolute monarch, and that a common man in that place is apt to do at least as much harm as good--perhaps more harm. But in that essay I could not discuss fully the functions of a king at the conclusion of an administration, for then the most peculiar parts of the English Government--the power to dissolve the House of Commons, and the power to create new peers--come into play, and until the nature of the House of Lords and the nature of the House of Commons had been explained, I had no premises for an argument as to the characteristic action of the king upon them. We have since considered the functions of the two houses, and also the effects of changes of Ministry on our administrative system; we are now, therefore, in a position to discuss the functions of a king at the end of an administration. I may seem over formal in this matter, but I am very formal on purpose. It appears to me that the functions of our executive in dissolving the Commons and augmenting the Peers are among the most important, and the least appreciated, parts of our whole government, and that hundreds of errors have been made in copying the English Constitution from not comprehending them. Hobbes told us long ago, and everybody now understands, that there must be a supreme authority, a conclusive power, in every State on every point somewhere. The idea of government involves it--when that idea is properly understood. But there are two classes of Governments. In one the supreme determining power is upon all points the same: in the other, that ultimate power is different upon different points--now resides in one part of the Constitution and now in another. The Americans thought that they were imitating the English in making their Constitution upon the last principle--in having one ultimate authority for one sort of matter, and another for another sort. But in truth the English Constitution is the type of the opposite species; it has only one authority for all sorts of matters. To gain a living conception of the difference let us see what the Americans did. First, they altogether retained what, in part, they could not help, the sovereignty of the separate States. A fundamental article of the Federal Constitution says that the powers not "delegated" to the central Government are "reserved to the States respectively". And the whole recent history of the Union--perhaps all its history--has been more determined by that enactment than by any other single cause. The sovereignty of the principal matters of State has rested not with the highest Government, but with the subordinate Government. The Federal Government could not touch slavery--the "domestic institution" which divided the Union into two halves, unlike one another in morals, politics, and social condition, and at last set them to fight. This determining political fact was not in the jurisdiction of the highest Government in the country, where you might expect its highest wisdom, nor in the central Government, where you might look for impartiality, but in local governments, where petty interests were sure to be considered, and where only inferior abilities were likely to be employed. The capital fact was reserved for the minor jurisdictions. Again, there has been only one matter comparable to slavery in the United States, and that has been vitally affected by the State Governments also. Their ultra-democracy is not a result of Federal legislation, but of State legislation. The Federal Constitution deputed one of the main items of its structure to the subordinate governments. One of its clauses provides that the suffrages for the Federal House of Representatives shall be, in each State, the same as for the most numerous branch of the legislature of that State; and as each State fixes the suffrage for its own legislatures, the States altogether fix the suffrage for the Federal Lower Chamber. By another clause of the Federal Constitution the States fix the electoral qualification for voting at a Presidential election. The primary element in a free government--the determination how many people shall have a share in it--in America depends not on the Government but on certain subordinate local, and sometimes, as in the South now, hostile bodies. Doubtless the framers of the Constitution had not much choice in the matter. The wisest of them were anxious to get as much power for the central Government, and to leave as little to the local governments as they could. But a cry was got up that this wisdom would create a tyranny and impair freedom, and with that help, local jealousy triumphed easily. All Federal Government is, in truth, a case in which what I have called the dignified elements of government do not coincide with the serviceable elements. At the beginning of every league the separate States are the old Governments which attract and keep the love and loyalty of the people; the Federal Government is a useful thing, but new and unattractive. It must concede much to the State Governments, for it is indebted to them for motive power: they are the Governments which the people voluntarily obey. When the State Governments are not thus loved, they vanish as the little Italian and the little German potentates vanished; no federation is needed; a single central Government rules all. But the division of the sovereign authority in the American Constitution is far more complex than this. The part of that authority left to the Federal Government is itself divided and subdivided. The greatest instance is the most obvious. The Congress rules the law, but the President rules the administration. One means of unity the Constitution does give: the President can veto laws he does not like. But when two-thirds of both Houses are unanimous (as has lately happened), they can overrule the President and make the laws without him; so here there are three separate repositories of the legislative power in different cases: first, Congress and the President when they agree; next, the President when he effectually exerts his power; then the requisite two-thirds of Congress when they overrule the President. And the President need not be over-active in carrying out a law he does not approve of. He may indeed be impeached for gross neglect; but between criminal non-feasance and zealous activity there are infinite degrees. Mr. Johnson does not carry out the Freedman's Bureau Bill as Mr. Lincoln, who approved of it, would have carried it out. The American Constitution has a special contrivance for varying the supreme legislative authority in different cases, and dividing the administrative authority from it in all cases. But the administrative power itself is not left thus simple and undivided. One most important part of administration is international policy, and the supreme authority here is not in the President, still less in the House of Representatives, but in the Senate. The President can only make treaties, "provided two-thirds of Senators present" concur. The sovereignty therefore for the greatest international questions is in a different part of the State altogether from any common administrative or legislative question. It is put in a place by itself. Again, the Congress declares war, but they would find it very difficult, according to the recent construction of their laws, to compel the President to make a peace. The authors of the Constitution doubtless intended that Congress should be able to control the American executive as our Parliament controls ours. They placed the granting of supplies in the House of Representatives exclusively. But they forgot to look after "paper money"; and now it has been held that the President has power to emit such money without consulting Congress at all. The first part of the late war was so carried on by Mr. Lincoln; he relied not on the grants of Congress, but on the prerogative of emission. It sounds a joke, but it is true nevertheless, that this power to issue greenbacks is decided to belong to the President as commander-in-chief of the army; it is part of what was called the "war power". In truth money was wanted in the late war, and the administration got it in the readiest way; and the nation, glad not to be more taxed, wholly approved of it. But the fact remains that the President has now, by precedent and decision, a mighty power to continue a war without the consent of Congress, and perhaps against its wish. Against the united will of the American PEOPLE a President would of course be impotent; such is the genius of the place and nation that he would never think of it. But when the nation was (as of late) divided into two parties, one cleaving to the President, the other to the Congress, the now unquestionable power of the President to issue paper-money may give him the power to continue the war though Parliament (as we should speak) may enjoin the war to cease. And lastly, the whole region of the very highest questions is withdrawn from the ordinary authorities of the State, and reserved for special authorities. The "Constitution" cannot be altered by any authorities within the Constitution, but only by authorities without it. Every alteration of it, however urgent or however trifling, must be sanctioned by a complicated proportion of States or legislatures. The consequence is that the most obvious evils cannot be quickly remedied; that the most absurd fictions must be framed to evade the plain sense of mischievous clauses; that a clumsy working and curious technicality mark the politics of a rough-and-ready people. The practical arguments and the legal disquisitions in America are often like those of trustees carrying out a misdrawn will--the sense of what they mean is good, but it can never be worked out fully or defended simply, so hampered is it by the old words of an old testament. These instances (and others might be added) prove, as history proves too, what was the principal thought of the American Constitution-makers. They shrank from placing sovereign power anywhere. They feared that it would generate tyranny; George III. had been a tyrant to them, and come what might, they would not make a George III. Accredited theories said that the English Constitution divided the sovereign authority, and in imitation the Americans split up theirs. The result is seen now. At the critical moment of their history there is no ready, deciding power. The South, after a great rebellion, lies at the feet of its conquerors: its conquerors have to settle what to do with it.[10] They must decide the conditions upon which the Secessionists shall again become fellow citizens, shall again vote, again be represented, again perhaps govern. The most difficult of problems is how to change late foes into free friends. The safety of their great public debt, and with that debt their future credit and their whole power in future wars, may depend on their not giving too much power to those who must see in the debt the cost of their own subjugation, and who must have an inclination towards the repudiation of it, now that their own debt--the cost of their defence--has been repudiated. A race, too, formerly enslaved, is now at the mercy of men who hate and despise it, and those who set it free are bound to give it a fair chance for new life. The slave was formerly protected by his chains; he was an article of value; but now he belongs to himself, no one but himself has an interest in his life; and he is at the mercy of the "mean whites," whose labour he depreciates, and who regard him with a loathing hatred. The greatest moral duty ever set before a Government, and the most fearful political problem ever set before a Government, are now set before the American. But there is no decision, and no possibility of a decision. The President wants one course, and has power to prevent any other; the Congress wants another course, and has power to prevent any other. The splitting of sovereignty into many parts amounts to there being no sovereign. [10] This was written just after the close of the Civil War, but I do not know that the great problem stated in it has as yet been adequately solved. The Americans of 1787 thought they were copying the English Constitution, but they were contriving a contrast to it. Just as the American is the type of composite Governments, in which the supreme power is divided between many bodies and functionaries, so the English is the type of SIMPLE Constitutions, in which the ultimate power upon all questions is in the hands of the same persons. The ultimate authority in the English Constitution is a newly-elected House of Commons. No matter whether the question upon which it decides be administrative or legislative; no matter whether it concerns high matters of the essential Constitution or small matters of daily detail; no matter whether it be a question of making a war or continuing a war; no matter whether it be the imposing a tax or the issuing a paper currency; no matter whether it be a question relating to India, or Ireland, or London--a new House of Commons can despotically and finally resolve. The House of Commons may, as was explained, assent in minor matters to the revision of the House of Lords, and submit in matters about which it cares little to the suspensive veto of the House of Lords; but when sure of the popular assent, and when freshly elected, it is absolute, it can rule as it likes and decide as it likes. And it can take the best security that it does not decide in vain. It can ensure that its decrees shall be executed, for it, and it alone, appoints the executive; it can inflict the most severe of all penalties on neglect, for it can remove the executive. It can choose, to effect its wishes, those who wish the same; and so its will is sure to be done. A stipulated majority of both Houses of the American Congress can overrule by stated enactment their executive; but the popular branch of our legislature can make and unmake ours. The English Constitution, in a word, is framed on the principle of choosing a single sovereign authority, and making it good; the American, upon the principle of having many sovereign authorities, and hoping that their multitude may atone for their inferiority. The Americans now extol their institutions, and so defraud themselves of their due praise. But if they had not a genius for politics; if they had not a moderation in action singularly curious where superficial speech is so violent; if they had not a regard for law, such as no great people have yet evinced, and infinitely surpassing ours,--the multiplicity of authorities in the American Constitution would long ago have brought it to a bad end. Sensible shareholders, I have heard a shrewd attorney say, can work ANY deed of settlement; and so the men of Massachusetts could, I believe, work ANY Constitution.[11] But political philosophy must analyse political history; it must distinguish what is due to the excellence of the people, and what to the excellence of the laws; it must carefully calculate the exact effect of each part of the Constitution, though thus it may destroy many an idol of the multitude, and detect the secret of utility where but few imagined it to lie. [11] Of course I am not speaking here of the South and South-East, as they now are. How any free government is to exist in societies where so many bad elements are so much perturbed, I cannot imagine. How important singleness and unity are in political action no one, I imagine, can doubt. We may distinguish and define its parts; but policy is a unit and a whole. It acts by laws--by administrators; it requires now one, now the other; unless it can easily move both it will be impeded soon; unless it has an absolute command of both its work will be imperfect. The interlaced character of human affairs requires a single determining energy; a distinct force for each artificial compartment will make but a motley patchwork, if it live long enough to make anything. The excellence of the British Constitution is that it has achieved this unity; that in it the sovereign power is single, possible, and good. The success is primarily due to the peculiar provision of the English Constitution, which places the choice of the executive in the "people's House"; but it could not have been thoroughly achieved except for two parts, which I venture to call the "safety-valve" of the Constitution, and the "regulator". The safety-valve is the peculiar provision of the Constitution, of which I spoke at great length in my essay on the House of Lords. The head of the executive can overcome the resistance of the second chamber by choosing new members of that chamber; if he do not find a majority, he can make a majority. This is a safety-valve of the truest kind. It enables the popular will--the will of which the executive is the exponent, the will of which it is the appointee--to carry out within the Constitution desires and conceptions which one branch of the Constitution dislikes and resists. It lets forth a dangerous accumulation of inhibited power, which might sweep this Constitution before it, as like accumulations have often swept away like Constitutions. The regulator, as I venture to call it, of our single sovereignty is the power of dissolving the otherwise sovereign chamber confided to the chief executive. The defects of the popular branch of a legislature as a sovereign have been expounded at length in a previous essay. Briefly, they may be summed up in three accusations. First. Caprice is the commonest and most formidable vice of a choosing chamber. Wherever in our colonies Parliamentary government is unsuccessful, or is alleged to be unsuccessful, this is the vice which first impairs it. The assembly cannot be induced to maintain any administration; it shifts its selection now from one Minister to another Minister, and in consequence there is no government at all. Secondly. The very remedy for such caprice entails another evil. The only mode by which a cohesive majority and a lasting administration can be upheld in a Parliamentary government, is party organisation; but that organisation itself tends to aggravate party violence and party animosity. It is, in substance, subjecting the whole nation to the rule of a section of the nation, selected because of its speciality. Parliamentary government is, in its essence, a sectarian government, and is possible only when sects are cohesive. Thirdly. A Parliament, like every other sort of sovereign, has peculiar feelings, peculiar prejudices, peculiar interests; and it may pursue these in opposition to the desires, and even in opposition to the well-being of the nation. It has its selfishness as well as its caprice and its parties. The mode in which the regulating wheel of our Constitution produces its effect is plain. It does not impair the authority of Parliament as a species, but it impairs the power of the individual Parliament. It enables a particular person outside Parliament to say, "You Members of Parliament are not doing your duty. You are gratifying caprice at the cost of the nation. You are indulging party spirit at the cost of the nation. You are helping yourself at the cost of the nation. I will see whether the nation approves what you are doing or not; I will appeal from Parliament No. 1 to Parliament No. 2." By far the best way to appreciate this peculiar provision of our Constitution is to trace it in action--to see, as we saw before of the other powers of English royalty, how far it is dependent on the existence of an hereditary king, and how far it can be exercised by a Premier whom Parliament elects. When we examine the nature of the particular person required to exercise the power, a vivid idea of that power is itself brought home to us. First. As to the caprice of Parliament in the choice of a Premier, who is the best person to check it? Clearly the Premier himself. He is the person most interested in maintaining his administration, and therefore the most likely person to use efficiently and dexterously the power by which it is to be maintained. The intervention of an extrinsic king occasions a difficulty. A capricious Parliament may always hope that his caprice may coincide with theirs. In the days when George III. assailed his Governments, the Premier was habitually deprived of his due authority. Intrigues were encouraged because it was always dubious whether the king-hated Minister would be permitted to appeal from the intriguers, and always a chance that the conspiring monarch might appoint one of the conspirators to be Premier in his room. The caprice of Parliament is better checked when the faculty of dissolution is entrusted to its appointee, than when it is set apart in an outlying and an alien authority. But, on the contrary, the party zeal and the self-seeking of Parliament are best checked by an authority which has no connection with Parliament or dependence upon it--supposing that such authority is morally and intellectually equal to the performance of the entrusted function. The Prime Minister obviously being the nominee of a party majority is likely to share its feeling, and is sure to be obliged to say that he shares it. The actual contact with affairs is indeed likely to purify him from many prejudices, to tame him of many fanaticisms, to beat out of him many errors. The present Conservative Government contains more than one member who regards his party as intellectually benighted; who either never speaks their peculiar dialect, or who speaks it condescendingly, and with an "aside"; who respects their accumulated prejudices as the "potential energies" on which he subsists, but who despises them while he lives by them. Years ago Mr. Disraeli called Sir Robert Peel's Ministry--the last Conservative Ministry that had real power--"an organised hypocrisy," so much did the ideas of its "head" differ from the sensations of its "tail". Probably he now comprehends--if he did not always--that the air of Downing Street brings certain ideas to those who live there, and that the hard, compact prejudices of opposition are soon melted and mitigated in the great gulf stream of affairs. Lord Palmerston, too, was a typical example of a leader lulling, rather than arousing, assuaging rather than acerbating the minds of his followers. But though the composing effect of close difficulties will commonly make a Premier cease to be an immoderate partisan, yet a partisan to some extent he must be, and a violent one he may be; and in that case he is not a good person to check the party. When the leading sect (so to speak) in Parliament is doing what the nation do not like, an instant appeal ought to be registered and Parliament ought to be dissolved. But a zealot of a Premier will not appeal; he will follow his formulae; he will believe he is doing good service when, perhaps, he is but pushing to unpopular consequences, the narrow maxims of an inchoate theory. At such a minute a constitutional king--such as Leopold the First was, and as Prince Albert might have been--is invaluable; he can and will prevent Parliament from hurting the nation. Again, too, on the selfishness of Parliament an extrinsic check is clearly more efficient than an intrinsic. A Premier who is made by Parliament may share the bad impulses of those who chose him; or, at any rate, he may have made "capital" out of them--he may have seemed to share them. The self-interests, the jobbing propensities of the assembly are sure indeed to be of very secondary interest to him. What he will care most for is the permanence, is the interest--whether corrupt or uncorrupt--of his own Ministry. He will be disinclined to anything coarsely unpopular. In the order of nature, a new assembly must come before long, and he will be indisposed to shock the feelings of the electors from whom that assembly must emanate. But though the interest of the Minister is inconsistent with appalling jobbery, he will be inclined to mitigated jobbery. He will temporise; he will try to give a seemly dress to unseemly matters: to do as much harm as will content the assembly, and yet not so much harm as will offend the nation. He will not shrink from becoming a particeps criminis; he will but endeavour to dilute the crime. The intervention of an extrinsic, impartial, and capable authority--if such can be found--will undoubtedly restrain the covetousness as well as the factiousness of a choosing assembly. But can such a head be found? In one case I think it has been found. Our colonial governors are precisely Dei ex machina. They are always intelligent, for they have to live by a different trade; they are nearly sure to be impartial, for they come from the ends of the earth; they are sure not to participate in the selfish desires of any colonial class or body, for long before those desires can have attained fruition they will have passed to the other side of the world, be busy with other faces and other minds, be almost out of hearing what happens in a region they have half forgotten. A colonial governor is a super-Parliamentary authority, animated by a wisdom which is probably in quantity considerable, and is different from that of the local Parliament, even if not above it. But even in this case the advantage of this extrinsic authority is purchased at a heavy price--a price which must not be made light of, because it is often worth paying. A colonial governor is a ruler who has no permanent interest in the colony he governs; who perhaps had to look for it in the map when he was sent thither; who takes years before he really understands its parties and its controversies; who, though without prejudice himself, is apt to be a slave to the prejudices of local people near him; who inevitably, and almost laudably, governs not in the interest of the colony, which he may mistake, but in his own interest, which he sees and is sure of. The first desire of a colonial governor is not to get into a "scrape," not to do anything which may give trouble to his superiors--the Colonial Office--at home, which may cause an untimely and dubious recall, which may hurt his after career. He is sure to leave upon the colony the feeling that they have a ruler who only half knows them, and does not so much as half care for them. We hardly appreciate this common feeling in our colonies, because WE appoint THEIR sovereign; but we should understand it in an instant if, by a political metamorphosis, the choice were turned the other way--if THEY appointed OUR sovereign. We should then say at once, "How is it possible a man from New Zealand can understand England? how is it possible, that a man longing to get back to the antipodes can care for England? how can we trust one who lives by the fluctuating favour of a distant authority? how can we heartily obey one who is but a foreigner with the accident of an identical language?" I dwell on the evils which impair the advantage of colonial governorship because that is the most favoured case of super-Parliamentary royalty, and because from looking at it we can bring freshly home to our minds what the real difficulties of that institution are. We are so familiar with it that we do not understand it. We are like people who have known a man all their lives, and yet are quite surprised when he displays some obvious characteristic which casual observers have detected at a glance. I have known a man who did not know what colour his sister's eyes were, though he had seen her every day for twenty years; or rather, he did not know because he had so seen her: so true is the philosophical maxim that we neglect the constant element in our thoughts, though it is probably the most important, and attend almost only to the varying elements--the differentiating elements (as men now speak)--though they are apt to be less potent. But when we perceive by the roundabout example of a colonial governor how difficult the task of a constitutional king is in the exercise of the function of dissolving Parliament, we at once see how unlikely it is that an hereditary monarch will be possessed of the requisite faculties. An hereditary king is but an ordinary person, upon an average, at best; he is nearly sure to be badly educated for business; he is very little likely to have a taste for business; he is solicited from youth by every temptation to pleasure; he probably passed the whole of his youth in the vicious situation of the heir-apparent, who can do nothing because he has no appointed work, and who will be considered almost to outstep his function if he undertake optional work. For the most part, a constitutional king is a DAMAGED common man; not forced to business by necessity as a despot often is, but yet spoiled for business by most of the temptations which spoil a despot. History, too, seems to show that hereditary royal families gather from the repeated influence of their corrupting situation some dark taint in the blood, some transmitted and growing poison which hurts their judgments, darkens all their sorrow, and is a cloud on half their pleasure. It has been said, not truly, but with a possible approximation to truth, "That in 1802 every hereditary monarch was insane". Is it likely that this sort of monarchs will be able to catch the exact moment when, in opposition to the wishes of a triumphant Ministry, they ought to dissolve Parliament? To do so with efficiency they must be able to perceive that the Parliament is wrong, and that the nation knows it is wrong. Now to know that Parliament is wrong, a man must be, if not a great statesman, yet a considerable statesman--a statesman of some sort. He must have great natural vigour, for no less will comprehend the hard principles of national policy. He must have incessant industry, for no less will keep him abreast with the involved detail to which those principles relate, and the miscellaneous occasions to which they must be applied. A man made common by nature, and made worse by life, is not likely to have either; he is nearly sure not to be BOTH clever and industrious. And a monarch in the recesses of a palace, listening to a charmed flattery unbiassed by the miscellaneous world, who has always been hedged in by rank, is likely to be but a poor judge of public opinion. He may have an inborn tact for finding it out; but his life will never teach it him, and will probably enfeeble it in him. But there is a still worse case, a case which the life of George III.--which is a sort of museum of the defects of a constitutional king--suggests at once. The Parliament may be wiser than the people, and yet the king may be of the same mind with the people. During the last years of the American war, the Premier, Lord North, upon whom the first responsibility rested, was averse to continuing it, and knew it could not succeed. Parliament was much of the same mind; if Lord North had been able to come down to Parliament with a peace in his hand, Parliament would probably have rejoiced, and the nation under the guidance of Parliament, though saddened by its losses, probably would have been satisfied. The opinion of that day was more like the American opinion of the present day than like our present opinion. It was much slower in its formation than our opinion now, and obeyed much more easily sudden impulses from the central administration. If Lord North had been able to throw the undivided energy and the undistracted authority of the executive Government into the excellent work of making a peace and carrying a peace, years of bloodshed might have been spared, and an entail of enmity cut off that has not yet run out. But there was a power behind the Prime Minister; George III. was madly eager to continue the war, and the nation--not seeing how hopeless the strife was, not comprehending the lasting antipathy which their obstinacy was creating--ignorant, dull and helpless--was ready to go on too. Even if Lord North had wished to make peace, and had persuaded Parliament accordingly, all his work would have been useless; a superior power could and would have appealed from a wise and pacific Parliament to a sullen and warlike nation. The check which our Constitution finds for the special vices of our Parliament was misused to curb its wisdom. The more we study the nature of Cabinet government, the more we shall shrink from exposing at a vital instant its delicate machinery to a blow from a casual, incompetent, and perhaps semi-insane outsider. The preponderant probability is that on a great occasion the Premier and Parliament will really be wiser than the king. The Premier is sure to be able, and is sure to be most anxious to decide well; if he fail to decide, he loses his place, though through all blunders the king keeps his; the judgment of the man naturally very discerning is sharpened by a heavy penalty, from which the judgment of the man by nature much less intelligent is exempt. Parliament, too, is for the most part a sound, careful and practical body of men. Principle shows that the power of dismissing a Government with which Parliament is satisfied, and of dissolving that Parliament upon an appeal to the people, is not a power which a common hereditary monarch will in the long run be able beneficially to exercise. Accordingly this power has almost, if not quite, dropped out of the reality of our Constitution. Nothing, perhaps, would more surprise the English people than if the Queen by a coup d'etat and on a sudden destroyed a Ministry firm in the allegiance and secure of a majority in Parliament. That power, indisputably, in theory, belongs to her; but it has passed so far away from the minds of men that it would terrify them, if she used it, like a volcanic eruption from Primrose Hill. The last analogy to it is not one to be coveted as a precedent. In 1835 William IV. dismissed an administration which, though disorganised by the loss of its leader in the Commons, was an existing Government, had a Premier in the Lords ready to go on, and a leader in the Commons willing to begin. The king fancied that public opinion was leaving the Whigs and going over to the Tories, and he thought he should accelerate the transition by ejecting the former. But the event showed that he misjudged. His PERCEPTION indeed was right; the English people were wavering in their allegiance to the Whigs, who had no leader that touched the popular heart, none in whom Liberalism could personify itself and become a passion--who besides were a body long used to opposition, and therefore making blunders in office--who were borne to power by a popular impulse which they only half comprehended, and perhaps less than half shared. But the king's POLICY was wrong; he impeded the reaction instead of aiding it. He forced on a premature Tory Government, which was as unsuccessful as all wise people perceived that it must be. The popular distaste to the Whigs was as yet but incipient, inefficient; and the intervention of the Crown was advantageous to them, because it looked inconsistent with the liberties of the people. And in so far as William IV. was right in detecting an incipient change of opinion, he did but detect an erroneous change. What was desirable was the prolongation of Liberal rule. The commencing dissatisfaction did but relate to the personal demerits of the Whig leaders, and other temporary adjuncts of free principles, and not to those principles intrinsically. So that the last precedent for a royal onslaught on a Ministry ended thus:--in opposing the right principles, in aiding the wrong principles, in hurting the party it was meant to help. After such a warning, it is likely that our monarchs will pursue the policy which a long course of quiet precedent at present directs--they will leave a Ministry trusted by Parliament to the judgment of Parliament. Indeed, the dangers arising from a party spirit in Parliament exceeding that of the nation, and of a selfishness in Parliament contradicting the true interest of the nation, are not great dangers in a country where the mind of the nation is steadily political, and where its control over its representatives is constant. A steady opposition to a formed public opinion is hardly possible in our House of Commons, so incessant is the national attention to politics, and so keen the fear in the mind of each member that he may lose his valued seat. These dangers belong to early and scattered communities, where there are no interesting political questions, where the distances are great, where no vigilant opinion passes judgment on Parliamentary excesses, where few care to have seats in the chamber, and where many of those few are from their characters and their antecedents better not there than there. The one great vice of Parliamentary government in an adult political nation, is the caprice of Parliament in the choice of a Ministry. A nation can hardly control it here; and it is not good that, except within wide limits, it should control it. The Parliamentary judgment of the merits or demerits of an administration very generally depends on matters which the Parliament, being close at hand, distinctly sees, and which the distant nation does not see. But where personality enters, capriciousness begins. It is easy to imagine a House of Commons which is discontented with all statesmen, which is contented with none, which is made up of little parties, which votes in small knots, which will adhere steadily to no leader, which gives every leader a chance and a hope. Such Parliaments require the imminent check of possible dissolution; but that check is (as has been shown) better in the Premier than in the sovereign; and by the late practice of our constitution, its use is yearly ebbing from the sovereign, and yearly centring in the Premier. The Queen can hardly now refuse a defeated Minister the chance of a dissolution, any more than she can dissolve in the time of an undefeated one, and without his consent. We shall find the case much the same with the safety-valve, as I have called it, of our Constitution. A good, capable, hereditary monarch would exercise it better than a Premier, but a Premier could manage it well enough; and a monarch capable of doing better will be born only once in a century, whereas monarchs likely to do worse will be born every day. There are two modes in which the power of our executive to create Peers--to nominate, that is, additional members of our upper and revising chamber--now acts: one constant, habitual, though not adequately noticed by the popular mind as it goes on; and the other possible and terrific, scarcely ever really exercised, but always by its reserved magic maintaining a great and a restraining influence. The Crown creates peers, a few year by year, and thus modifies continually the characteristic feeling of the House of Lords. I have heard people say, who ought to know, that the ENGLISH peerage (the only one upon which unhappily the power of new creation now acts) is now more Whig than Tory. Thirty years ago the majority was indisputably the other way. Owing to very curious circumstances English parties have not alternated in power, as a good deal of speculation predicts they would, and a good deal of current language assumes they have. The Whig party were in office some seventy years (with very small breaks) from the death of Queen Anne to the coalition between Lord North and Mr. Fox; then the Tories (with only such breaks), were in power for nearly fifty years, till 1832; and since, the Whig party has always, with very trifling intervals, been predominant. Consequently, each continuously-governing party has had the means of modifying the Upper House to suit its views. The profuse Tory creations of half a century had made the House of Lords bigotedly Tory before the first Reform Act, but it is wonderfully mitigated now. The Irish Peers and Scotch Peers--being nominated by an almost unaltered constituency, and representing the feelings of the majority of that constituency only (no minority having any voice)--present an unchangeable Tory element. But the element in which change is permitted has been changed. Whether the English Peerage be or be not predominantly now Tory, it is certainly not Tory after the fashion of the Toryism of 1832. The Whig additions have indeed sprung from a class commonly rather adjoining upon Toryism, than much inclining to Radicalism. It is not from men of large wealth that a very great impetus to organic change should be expected. The additions to the Peers have matched nicely enough with the old Peers, and therefore they have effected more easily a greater and more permeating modification. The addition of a contrasting mass would have excited the old leaven, but the delicate infusion of ingredients similar in genus, though different in species, has modified the new compound without irritating the old original. This ordinary and common use of the peer-creating power is always in the hands of the Premier, and depends for its characteristic use on being there. He, as the head of the predominant party, is the proper person to modify gradually the permanent chamber which, perhaps, was at starting hostile to him; and, at any rate, can be best harmonised with the public opinion he represents by the additions he makes. Hardly any contrived constitution possesses a machinery for modifying its secondary house so delicate, so flexible, and so constant. If the power of creating life peers had been added, the mitigating influence of the responsible executive upon the House of Lords would have been as good as such a thing can be. The catastrophic creation of peers for the purpose of swamping the Upper House is utterly different. If an able and impartial exterior king is at hand, this power is best in that king. It is a power only to be used on great occasions, when the object is immense, and the party strife unmitigated. This is the conclusive, the swaying power of the moment, and of course, therefore, it had better be in the hands of a power both capable and impartial, than of a Premier who must in some degree be a partisan. The value of a discreet, calm, wise monarch, if such should happen to be reigning at the acute crisis of a nation's destiny, is priceless. He may prevent years of tumult, save bloodshed and civil war, lay up a store of grateful fame to himself, prevent the accumulated intestine hatred of each party to its opposite. But the question comes back, Will there be such a monarch just then? What is the chance of having him just then? What will be the use of the monarch whom the accidents of inheritance, such as we know them to be, must upon an average bring us just then? The answer to these questions is not satisfactory, if we take it from the little experience we have had in this rare matter. There have been but two cases at all approaching to a catastrophic creation of peers--to a creation which would suddenly change the majority of the Lords--in English history. One was in Queen Anne's time. The majority of peers in Queen Anne's time were Whig, and by profuse and quick creations Harley's Ministry changed it to a Tory majority. So great was the popular effect, that in the next reign one of the most contested Ministerial proposals was a proposal to take the power of indefinite peer creation from the Crown, and to make the number of Lords fixed, as that of the Commons is fixed. But the sovereign had little to do with the matter. Queen Anne was one of the smallest people ever set in a great place. Swift bitterly and justly said "she had not a store of amity by her for more than one friend at a time," and just then her affection was concentrated on a waiting-maid. Her waiting-maid told her to make peers, and she made them. But of large thought and comprehensive statesmanship she was as destitute as Mrs. Masham. She supported a bad Ministry by the most extreme of measures, and she did it on caprice. The case of William IV. is still more instructive. He was a very conscientious king, but at the same time an exceedingly weak king. His correspondence with Lord Grey on this subject fills more than half a large volume, or rather his secretary's correspondence, for he kept a very clever man to write what he thought, or at least what those about him thought. It is a strange instance of high-placed weakness and conscientious vacillation. After endless letters the king consents to make a REASONABLE number of peers if required to pass the second reading of the Reform Bill, but owing to desertion of the "Waverers" from the Tories, the second reading is carried without it by nine, and then the king refuses to make peers, or at least enough peers when a vital amendment is carried by Lord Lyndhurst, which would have destroyed, and was meant to destroy the Bill. In consequence, there was a tremendous crisis and nearly a revolution. A more striking example of well-meaning imbecility is scarcely to be found in history. No one who reads it carefully will doubt that the discretionary power of making peers would have been far better in Lord Grey's hands than in the king's. It was the uncertainty whether the king would exercise it, and how far he would exercise it, that mainly animated the opposition. In fact, you may place power in weak hands at a revolution, but you cannot keep it in weak hands. It runs out of them into strong ones. An ordinary hereditary sovereign--a William IV., or a George IV.--is unfit to exercise the peer-creating power when most wanted. A half-insane king, like George III., would be worse. He might use it by unaccountable impulse when not required, and refuse to use it out of sullen madness when required. The existence of a fancied check on the Premier is in truth an evil, because it prevents the enforcement of a real check. It would be easy to provide by law that an extraordinary number of peers--say more than ten annually--should not be created except on a vote of some large majority, suppose three-fourths of the Lower House. This would ensure that the Premier should not use the reserve force of the constitution as if it were an ordinary force; that he should not use it except when the whole nation fixedly wished it; that it should be kept for a revolution, not expended on administration; and it would ensure that he should then have it to use. Queen Anne's case and William IV.'s case prove that neither object is certainly attained by entrusting this critical and extreme force to the chance idiosyncrasies and habitual mediocrity of an hereditary sovereign. It may be asked why I argue at such length a question in appearance so removed from practice, and in one point of view so irrelevant to my subject. No one proposes to remove Queen Victoria; if any one is in a safe place on earth, she is in a safe place. In these very essays it has been shown that the mass of our people would obey no one else, that the reverence she excites is the potential energy--as science now speaks--out of which all minor forces are made, and from which lesser functions take their efficiency. But looking not to the present hour, and this single country, but to the world at large and coming times, no question can be more practical. What grows upon the world is a certain matter-of-factness. The test of each century, more than of the century before, is the test of results. New countries are arising all over the world where there are no fixed sources of reverence; which have to make them; which have to create institutions which must generate loyalty by conspicuous utility. This matter-of-factness is the growth even in Europe of the two greatest and newest intellectual agencies of our time. One of these is business. We see so much of the material fruits of commerce that we forget its mental fruits. It begets a mind desirous of things, careless of ideas, not acquainted with the niceties of words. In all labour there should be profit, is its motto. It is not only true that we have "left swords for ledgers," but war itself is made as much by the ledger as by the sword. The soldier--that is, the great soldier--of to-day is not a romantic animal, dashing at forlorn hopes, animated by frantic sentiment, full of fancies as to a lady-love or a sovereign; but a quiet, grave man, busied in charts, exact in sums, master of the art of tactics, occupied in trivial detail; thinking, as the Duke of Wellington was said to do, MOST of the shoes of his soldiers; despising all manner of eclat and eloquence; perhaps, like Count Moltke, "silent in seven languages". We have reached a "climate" of opinion where figures rule, where our very supporter of Divine right, as we deemed him, our Count Bismarck, amputates kings right and left, applies the test of results to each, and lets none live who are not to do something. There has in truth been a great change during the last five hundred years in the predominant occupations of the ruling part of mankind; formerly they passed their time either in exciting action or inanimate repose. A feudal baron had nothing between war and the chase--keenly animating things both--and what was called "inglorious ease". Modern life is scanty in excitements, but incessant in quiet action. Its perpetual commerce is creating a "stock-taking" habit--the habit of asking each man, thing, and institution, "Well, what have you done since I saw you last?" Our physical science, which is becoming the dominant culture of thousands, and which is beginning to permeate our common literature to an extent which few watch enough, quite tends the same way. The two peculiarities are its homeliness and its inquisitiveness; its value for the most "stupid" facts, as one used to call them, and its incessant wish for verification--to be sure, by tiresome seeing and hearing, that they are facts. The old excitement of thought has half died out, or rather it is diffused in quiet pleasure over a life instead of being concentrated in intense and eager spasms. An old philosopher--a Descartes, suppose--fancied that out of primitive truths, which he could by ardent excogitation know, he might by pure deduction evolve the entire universe. Intense self-examination, and intense reason would, he thought, make out everything. The soul "itself by itself," could tell all it wanted if it would be true to its sublimer isolation. The greatest enjoyment possible to man was that which this philosophy promises its votaries--the pleasure of being always right, and always reasoning--without ever being bound to look at anything. But our most ambitious schemes of philosophy now start quite differently. Mr. Darwin begins:-- "When on board H.M.S. Beagle, as naturalist, I was much struck with certain facts in the distribution of the organic beings inhabiting South America, and in the geological relations of the present to the past inhabitants of that continent. These facts, as will be seen in the latter chapters of this volume, seemed to throw some light on the origin of species--that mystery of mysteries, as it has been called by one of our greatest philosophers. On my return home, it occurred to me, in 1837, that something might perhaps be made out on this question by patiently accumulating and reflecting on all sorts of facts which could possibly have any bearing on it. After five years' work I allowed myself to speculate on the subject, and drew up some short notes; these I enlarged in 1844 into a sketch of the conclusions which then seemed to me probable: from that period to the present day I have steadily pursued the same object. I hope that I may be excused for entering on these personal details, as I give them to show that I have not been hasty in coming to a decision." If he hopes finally to solve his great problem, it is by careful experiments in pigeon-fancying, and other sorts of artificial variety-making. His hero is not a self-enclosed, excited philosopher, but "that most skilful breeder, Sir John Sebright, who used to say, with respect to pigeons, that he would produce any given feathers in three years, but it would take him six years to obtain a head and a beak". I am not saying that the new thought is better than the old; it is no business of mine to say anything about that; I only wish to bring home to the mind, as nothing but instances can bring it home, how matter-of-fact, how petty, as it would at first sight look, even our most ambitious science has become. In the new communities which our emigrating habit now constantly creates, this prosaic turn of mind is intensified. In the American mind and in the colonial mind there is, as contrasted with the old English mind, a LITERALNESS, a tendency to say, "The facts are so-and-so, whatever may be thought or fancied about them". We used before the civil war to say that the Americans worshipped the almighty dollar; we now know that they can scatter money almost recklessly when they will. But what we meant was half right--they worship visible value: obvious, undeniable, intrusive result. And in Australia and New Zealand the same turn comes uppermost. It grows from the struggle with the wilderness. Physical difficulty is the enemy of early communities, and an incessant conflict with it for generations leaves a mark of reality on the mind--a painful mark almost to us, used to impalpable fears and the half-fanciful dangers of an old and complicated society. The "new Englands" of all latitudes are bare-minded (if I may so say) as compared with the "old". When, therefore, the new communities of the colonised world have to choose a government, they must choose one in which ALL the institutions are of an obvious evident utility. We catch the Americans smiling at our Queen with her secret mystery, and our Prince of Wales with his happy inaction. It is impossible, in fact, to convince their prosaic minds that constitutional royalty is a rational government, that it is suited to a new age and an unbroken country, that those who start afresh can start with it. The princelings who run about the world with excellent intentions, but an entire ignorance of business, are to them a locomotive advertisement that this sort of government is European in its limitations and mediaeval in its origin; that though it has yet a great part to play in the old States, it has no place or part in new States. The realisme impitoyable which good critics find in a most characteristic part of the literature of the nineteenth century, is to be found also in its politics. An ostentatious utility must characterise its creations. The deepest interest, therefore, attaches to the problem of this essay. If hereditary royalty had been essential to Parliamentary government, we might well have despaired of that government. But accurate investigation shows that this royalty is not essential; that, upon an average, it is not even in a high degree useful; that though a king with high courage and fine discretion--a king with a genius for the place--is always useful, and at rare moments priceless, yet that a common king, a king such as birth brings, is of no use at difficult crises, while in the common course of things his aid is neither likely nor required--he will do nothing, and he need do nothing. But we happily find that a new country need not fall back into the fatal division of powers incidental to a Presidential government; it may, if other conditions serve, obtain the ready, well-placed, identical sort of sovereignty which belongs to the English Constitution, under the unroyal form of Parliamentary government. NO. VIII. THE PREREQUISITES OF CABINET GOVERNMENT, AND THE PECULIAR FORM WHICH THEY HAVE ASSUMED IN ENGLAND. Cabinet government is rare because its prerequisites are many. It requires the co-existence of several national characteristics which are not often found together in the world, and which should be perceived more distinctly than they often are. It is fancied that the possession of a certain intelligence, and a few simple virtues, are the sole requisites. The mental and moral qualities are necessary, but much else is necessary also. A Cabinet government is the government of a committee selected by the legislature, and there are therefore a double set of conditions to it: first, those which are essential to all elective governments as such; and second, those which are requisite to this particular elective government. There are prerequisites for the genus, and additional ones for the species. The first prerequisite of elective government is the MUTUAL CONFIDENCE of the electors. We are so accustomed to submit to be ruled by elected Ministers, that we are apt to fancy all mankind would readily be so too. Knowledge and civilisation have at least made this progress, that we instinctively, without argument, almost without consciousness, allow a certain number of specified persons to choose our rulers for us. It seems to us the simplest thing in the world. But it is one of the gravest things. The peculiar marks of semi-barbarous people are diffused distrust and indiscriminate suspicion. People, in all but the most favoured times and places, are rooted to the places where they were born, think the thoughts of those places, can endure no other thoughts. The next parish even is suspected. Its inhabitants have different usages, almost imperceptibly different, but yet different; they speak a varying accent; they use a few peculiar words; tradition says that their faith is dubious. And if the next parish is a little suspected, the next county is much more suspected. Here is a definite beginning of new maxims, new thoughts, new ways: the immemorial boundary mark begins in feeling a strange world. And if the next county is dubious, a remote county is untrustworthy. "Vagrants come from thence," men know, and they know nothing else. The inhabitants of the north speak a dialect different from the dialect of the south: they have other laws, another aristocracy, another life. In ages when distant territories are blanks in the mind, when neighbourhood is a sentiment, when locality is a passion, concerted co-operation between remote regions is impossible even on trivial matters. Neither would rely enough upon the good faith, good sense, and good judgment of the other. Neither could enough calculate on the other. And if such co-operation is not to be expected in trivial matters, it is not to be thought of in the most vital matter of government--the choice of the executive ruler. To fancy that Northumberland in the thirteenth century would have consented to ally itself with Somersetshire for the choice of a chief magistrate is absurd; it would scarcely have allied itself to choose a hangman. Even now, if it were palpably explained, neither district would like it. But no one says at a county election, "The object of this present meeting is to choose our delegate to what the Americans call the 'Electoral College,' to the assembly which names our first magistrate--our substitute for their President. Representatives from this county will meet representatives from other counties, from cities and boroughs, and proceed to choose our rulers." Such bald exposition would have been impossible in old times; it would be considered queer, eccentric, if it were used now. Happily, the process of election is so indirect and hidden, and the introduction of that process was so gradual and latent, that we scarcely perceive the immense political trust we repose in each other. The best mercantile credit seems to those who give it, natural, simple, obvious; they do not argue about it, or think about it. The best political credit is analogous; we trust our countrymen without remembering that we trust them. A second and very rare condition of an elective government is a CALM national mind--a tone of mind sufficiently staple to bear the necessary excitement of conspicuous revolutions. No barbarous, no semi-civilised nation has ever possessed this. The mass of uneducated men could not now in England be told "go to, choose your rulers;" they would go wild; their imaginations would fancy unreal dangers, and the attempt at election would issue in some forcible usurpation. The incalculable advantage of august institutions in a free state is, that they prevent this collapse. The excitement of choosing our rulers is prevented by the apparent existence of an unchosen ruler. The poorer and more ignorant classes--those who would most feel excitement, who would most be misled by excitement--really believe that the Queen governs. You could not explain to them the recondite difference between "reigning" and "governing"; the words necessary to express it do not exist in their dialect; the ideas necessary to comprehend it do not exist in their minds. The separation of principal power from principal station is a refinement which they could not even conceive. They fancy they are governed by an hereditary Queen, a Queen by the grace of God, when they are really governed by a Cabinet and a Parliament--men like themselves, chosen by themselves. The conspicuous dignity awakens the sentiment of reverence, and men, often very undignified, seize the occasion to govern by means of it. Lastly. The third condition of all elective government is what I may call RATIONALITY, by which I mean a power involving intelligence, but yet distinct from it. A whole people electing its rulers must be able to form a distinct conception of distant objects. Mostly, the "divinity" that surrounds a king altogether prevents anything like a steady conception of him. You fancy that the object of your loyalty is as much elevated above you by intrinsic nature as he is by extrinsic position; you deify him in sentiment, as once men deified him in doctrine. This illusion has been and still is of incalculable benefit to the human race. It prevents, indeed, men from choosing their rulers; you cannot invest with that loyal illusion a man who was yesterday what you are, who to-morrow may be so again, whom you chose to be what he is. But though this superstition prevents the election of rulers, it renders possible the existence of unelected rulers. Untaught people fancy that their king, crowned with the holy crown, anointed with the oil of Rheims, descended of the House of Plantagenet, is a different sort of being from any one not descended of the Royal House--not crowned--not anointed. They believe that there is ONE man whom by mystic right they should obey; and therefore they do obey him. It is only in later times, when the world is wider, its experience larger, and its thought colder, that the plain rule of a palpably chosen ruler is even possible. These conditions narrowly restrict elective government. But the prerequisites of a Cabinet government are rarer still; it demands not only the conditions I have mentioned, but the possibility likewise of a good legislature--a legislature competent to elect a sufficient administration. Now a competent legislature is very rare. ANY permanent legislature at all, any constantly acting mechanism for enacting and repealing laws, is, though it seems to us so natural, quite contrary to the inveterate conceptions of mankind. The great majority of nations conceive of their law, either as something Divinely given, and therefore unalterable, or as a fundamental habit, inherited from the past to be transmitted to the future. The English Parliament, of which the prominent functions are now legislative, was not all so once. It was rather a PRESERVATIVE body. The custom of the realm--the aboriginal transmitted law--the law which was in the breast of the judges, could not be altered without the consent of Parliament, and therefore everybody felt sure it would not be altered except in grave, peculiar, and anomalous cases. The VALUED use of Parliament was not half so much to alter the law, as to prevent the laws being altered. And such too was its real use. In early societies it matters much more that the law should be fixed than that it should be good. Any law which the people of ignorant times enact is sure to involve many misconceptions, and to cause many evils. Perfection in legislation is not to be looked for, and is not, indeed, much wanted in a rude, painful, confined life. But such an age covets fixity. That men should enjoy the fruits of their labour, that the law of property should be known, that the law of marriage should be known, that the whole course of life should be kept in a calculable track is the summum bonum of early ages, the first desire of semi-civilised mankind. In that age men do not want to have their laws adapted, but to have their laws steady. The passions are so powerful, force so eager, the social bond so weak, that the august spectacle of an all but unalterable law is necessary to preserve society. In the early stages of human society all change is thought an evil. And MOST change is an evil. The conditions of life are so simple and so unvarying that any decent sort of rules suffice so long as men know what they are. Custom is the first check on tyranny; that fixed routine of social life at which modern innovations chafe, and by which modern improvement is impeded, is the primitive check on base power. The perception of political expediency has then hardly begun; the sense of abstract justice is weak and vague; and a rigid adherence to the fixed mould of transmitted usage is essential to an unmarred, unspoiled, unbroken life. In such an age a legislature continuously sitting, always making laws, always repealing laws, would have been both an anomaly and a nuisance. But in the present state of the civilised part of the world such difficulties are obsolete. There is a diffused desire in civilised communities for an ADJUSTING legislation; for a legislation which should adapt the inherited laws to the new wants of a world which now changes every day. It has ceased to be necessary to maintain bad laws because it is necessary to have some laws. Civilisation is robust enough to bear the incision of legal improvements. But taking history at large, the rarity of Cabinets is mostly due to the greater rarity of continuous legislatures. Other conditions, however, limit even at the present day the area of a Cabinet government. It must be possible to have not only a legislature, but to have a competent legislature--a legislature willing to elect and willing to maintain an efficient executive. And this is no easy matter. It is indeed true that we need not trouble ourselves to look for that elaborate and complicated organisation which partially exists in the House of Commons, and which is more fully and freely expanded in plans for improving the House of Commons. We are not now concerned with perfection or excellence; we seek only for simple fitness and bare competency. The conditions of fitness are two. First, you must get a good legislature; and next, you must keep it good. And these are by no means so nearly connected as might be thought at first sight. To keep a legislature efficient, it must have a sufficient supply of substantial business. If you employ the best set of men to do nearly nothing, they will quarrel with each other about that nothing. Where great questions end, little parties begin. And a very happy community, with few new laws to make, few old bad laws to repeal, and but simple foreign relations to adjust, has great difficulty in employing a legislature. There is nothing for it to enact, and nothing for it to settle. Accordingly, there is great danger that the legislature, being debarred from all other kind of business, may take to quarrelling about its elective business; that controversies as to Ministries may occupy all its time, and yet that time be perniciously employed; that a constant succession of feeble administrations, unable to govern and unfit to govern, may be substituted for the proper result of Cabinet government--a sufficient body of men long enough in power to evince their sufficiency. The exact amount of non-elective business necessary for a Parliament which is to elect the executive cannot, of course, be formally stated. There are no numbers and no statistics in the theory of constitutions. All we can say is, that a Parliament with little business, which is to be as efficient as a Parliament with much business, must be in all other respects much better. An indifferent Parliament may be much improved by the steadying effect of grave affairs; but a Parliament which has no such affairs must be intrinsically excellent, or it will fail utterly. But the difficulty of keeping a good legislature, is evidently secondary to the difficulty of first getting it. There are two kinds of nations which can elect a good Parliament. The first is a nation in which the mass of the people are intelligent, and in which they are comfortable. Where there is no honest poverty, where education is diffused, and political intelligence is common, it is easy for the mass of the people to elect a fair legislature. The idea is roughly realised in the North American colonies of England, and in the whole free States of the Union. In these countries there is no such thing as honest poverty; physical comfort, such as the poor cannot imagine here, is there easily attainable by healthy industry. Education is diffused much, and is fast spreading, Ignorant emigrants from the Old World often prize the intellectual advantages of which they are themselves destitute, and are annoyed at their inferiority in a place where rudimentary culture is so common. The greatest difficulty of such new communities is commonly geographical. The population is mostly scattered; and where population is sparse, discussion is difficult. But in a country very large, as we reckon in Europe, a people really intelligent, really educated, really comfortable, would soon form a good opinion. No one can doubt that the New England States, if they were a separate community, would have an education, a political capacity, and an intelligence such as the numerical majority of no people, equally numerous, has ever possessed. In a State of this sort, where all the community is fit to choose a sufficient legislature, it is possible, it is almost easy, to create that legislature. If the New England States possessed a Cabinet government as a separate nation, they would be as renowned in the world for political sagacity as they now are for diffused happiness. The structure of these communities is indeed based on the principle of equality, and it is impossible that ANY such community can wholly satisfy the severe requirements of a political theorist. In every old community its primitive and guiding assumption is at war with truth. By its theory all people are entitled to the same political power, and they can only be so entitled on the ground that in politics they are equally wise. But at the outset of an agricultural colony this postulate is as near the truth as politics want. There are in such communities no large properties, no great capitals, no refined classes--every one is comfortable and homely, and no one is at all more. Equality is not artificially established in a new colony; it establishes itself. There is a story that among the first settlers in Western Australia, some, who were rich, took out labourers at their own expense, and also carriages to ride in. But soon they had to try if they could live in the carriages. Before the masters' houses were built, the labourers had gone off--they were building houses and cultivating land for themselves, and the masters were left to sit in their carriages. Whether this exact thing happened I do not know, but this sort of thing has happened a thousand times. There has been a whole series of attempts to transplant to the colonies a graduated English society. But they have always failed at the first step. The rude classes at the bottom felt that they were equal to or better than the delicate classes at the top; they shifted for themselves, and left the "gentle-folks" to shift for themselves; the base of the elaborate pyramid spread abroad, and the apex tumbled in and perished. In the early ages of an agricultural colony, whether you have political democracy or not, social democracy you must have, for nature makes it, and not you. But in time, wealth grows and inequality begins. A and his children are industrious, and prosper; B and his children are idle, and fail. If manufactures on a considerable scale are established--and most young communities strive even by protection to establish them--the tendency to inequality is intensified. The capitalist becomes a unit with much, and his labourers a crowd with little. After generations of education, too, there arise varieties of culture--there will be an upper thousand, or ten thousand, of highly cultivated people in the midst of a great nation of moderately educated people. In theory it is desirable that this highest class of wealth and leisure should have an influence far out of proportion to its mere number: a perfect constitution would find for it a delicate expedient to make its fine thought tell upon the surrounding cruder thought. But as the world goes, when the whole of the population is as instructed and as intelligent as in the case I am supposing, we need not care much about this. Great communities have scarcely ever--never save for transient moments--been ruled by their highest thought. And if we can get them ruled by a decent capable thought, we may be well enough contented with our work. We have done more than could be expected, though not all which could be desired. At any rate, an isocratic polity--a polity where every one votes, and where every one votes alike--is, in a community of sound education and diffused intelligence, a conceivable case of Cabinet government. It satisfies the essential condition; there is a people able to elect, a Parliament able to choose. But suppose the mass of the people are not able to elect--and this is the case with the numerical majority of all but the rarest nations--how is a Cabinet government to be then possible? It is only possible in what I may venture to call DEFERENTIAL nations. It has been thought strange, but there ARE nations in which the numerous unwiser part wishes to be ruled by the less numerous wiser part. The numerical majority--whether by custom or by choice, is immaterial--is ready, is eager to delegate its power of choosing its ruler to a certain select minority. It abdicates in favour of its elite, and consents to obey whoever that elite may confide in. It acknowledges as its secondary electors--as the choosers of its government--an educated minority, at once competent and unresisted; it has a kind of loyalty to some superior persons who are fit to choose a good government, and whom no other class opposes. A nation in such a happy state as this has obvious advantages for constructing a Cabinet government. It has the best people to elect a legislature, and therefore it may fairly be expected to choose a good legislature--a legislature competent to select a good administration. England is the type of deferential countries, and the manner in which it is so, and has become so, is extremely curious. The middle classes--the ordinary majority of educated men--are in the present day the despotic power in England. "Public opinion," nowadays, "is the opinion of the bald-headed man at the back of the omnibus." It is NOT the opinion of the aristocratical classes as such; or of the most educated or refined classes as such; it is simply the opinion of the ordinary mass of educated, but still commonplace mankind. If you look at the mass of the constituencies, you will see that they are not very interesting people; and perhaps if you look behind the scenes and see the people who manipulate and work the constituencies, you will find that these are yet more uninteresting. The English constitution in its palpable form is this--the mass of the people yield obedience to a select few; and when you see this select few, you perceive that though not of the lowest class, nor of an unrespectable class, they are yet of a heavy sensible class--the last people in the world to whom, if they were drawn up in a row, an immense nation would ever give an exclusive preference. In fact, the mass of the English people yield a deference rather to something else that to their rulers. They defer to what we may call the THEATRICAL SHOW of society. A certain state passes before them; a certain pomp of great men; a certain spectacle of beautiful women; a wonderful scene of wealth and enjoyment is displayed, and they are coerced by it. Their imagination is bowed down; they feel they are not equal to the life which is revealed to them. Courts and aristocracies have the great quality which rules the multitude, though philosophers can see nothing in it--visibility. Courtiers can do what others cannot. A common man may as well try to rival the actors on the stage in their acting, as the aristocracy in THEIR acting. The higher world, as it looks from without, is a stage on which the actors walk their parts much better than the spectators can. This play is played in every district. Every rustic feels that his house is not like my lord's house; his life like my lord's life; his wife like my lady. The climax of the play is the Queen: nobody supposes that their house is like the court; their life like her life; her orders like their orders. There is in England a certain charmed spectacle which imposes on the many, and guides their fancies as it will. As a rustic on coming to London finds himself in presence of a great show and vast exhibition of inconceivable mechanical things, so by the structure of our society, he finds himself face to face with a great exhibition of political things which he could not have imagined, which he could not make--to which he feels in himself scarcely anything analogous. Philosophers may deride this superstition, but its results are inestimable. By the spectacle of this august society, countless ignorant men and women are induced to obey the few nominal electors--the Ll0 borough renters, and the L50 county renters--who have nothing imposing about them, nothing which would attract the eye or fascinate the fancy. What impresses men is not mind, but the result of mind. And the greatest of these results is this wonderful spectacle of society, which is ever new, and yet ever the same; in which accidents pass and essence remains; in which one generation dies and another succeeds, as if they were birds in a cage, or animals in a menagerie; of which it seems almost more than a metaphor to treat the parts as limbs of a perpetual living thing, so silently do they seem to change, so wonderfully and so perfectly does the conspicuous life of the new year take the place of the conspicuous life of last year. The apparent rulers of the English nation are like the most imposing personages of a splendid procession: it is by them the mob are influenced; it is they whom the spectators cheer. The real rulers are secreted in second-rate carriages; no one cares for them or asks about them, but they are obeyed implicitly and unconsciously by reason of the splendour of those who eclipsed and preceded them. It is quite true that this imaginative sentiment is supported by a sensation of political satisfaction. It cannot be said that the mass of the English people are well off. There are whole classes who have not a conception of what the higher orders call comfort; who have not the prerequisites of moral existence; who cannot lead the life that becomes a man. But the most miserable of these classes do not impute their misery to politics. If a political agitator were to lecture to the peasants of Dorsetshire, and try to excite political dissatisfaction, it is much more likely that he would be pelted than that he would succeed. Of Parliament these miserable creatures know scarcely anything; of the Cabinet they never heard. But they would say that, "for all they have heard, the Queen is very good"; and rebelling against the structure of society is to their minds rebelling against the Queen, who rules that society, in whom all its most impressive part--the part that they know--culminates. The mass of the English people are politically contented as well as politically deferential. A deferential community, even though its lowest classes are not intelligent, is far more suited to a Cabinet government than any kind of democratic country, because it is more suited to political excellence. The highest classes can rule in it; and the highest classes must, as such, have more political ability than the lower classes. A life of labour, an incomplete education, a monotonous occupation, a career in which the hands are used much and the judgment is used little, cannot create as much flexible thought, as much applicable intelligence, as a life of leisure, a long culture, a varied experience, an existence by which the judgment is incessantly exercised, and by which it may be incessantly improved. A country of respectful poor, though far less happy than where there are no poor to be respectful, is nevertheless far more fitted for the best government. You can use the best classes of the respectful country; you can only use the worst where every man thinks he is as good as every other. It is evident that no difficulty can be greater than that of founding a deferential nation. Respect is traditional; it is given not to what is proved to be good, but to what is known to be old. Certain classes in certain nations retain by common acceptance a marked political preference, because they have always possessed it, and because they inherit a sort of pomp which seems to make them worthy of it. But in a new colony, in a community where merit MAY be equal, and where there CANNOT be traditional marks of merit and fitness, it is obvious that a political deference can be yielded to higher culture only upon proof, first of its existence, and next of its political value. But it is nearly impossible to give such a proof so as to satisfy persons of less culture. In a future and better age of the world it may be effected; but in this age the requisite premises scarcely exist; if the discussion be effectually open, if the debate be fairly begun, it is hardly possible to obtain a rational, an argumentative acquiescence in the rule of the cultivated few. As yet the few rule by their hold, not over the reason of the multitude, but over their imaginations, and their habits; over their fancies as to distant things they do not know at all, over their customs as to near things which they know very well. A deferential community in which the bulk of the people are ignorant, is therefore in a state of what is called in mechanics unstable equilibrium. If the equilibrium is once disturbed there is no tendency to return to it, but rather to depart from it. A cone balanced on its point is in unstable equilibrium, for if you push it ever so little it will depart farther and farther from its position and fall to the earth. So in communities where the masses are ignorant but respectful, if you once permit the ignorant class to begin to rule you may bid farewell to deference for ever. Their demagogues will inculcate, their newspapers will recount, that the rule of the existing dynasty (the people) is better than the rule of the fallen dynasty (the aristocracy). A people very rarely hears two sides of a subject in which it is much interested; the popular organs take up the side which is acceptable, and none but the popular organs in fact reach the people. A people NEVER hears censure of itself. No one will tell it that the educated minority whom it dethroned governed better or more wisely than it governs. A democracy will never, save after an awful catastrophe, return what has once been conceded to it, for to do so would be to admit an inferiority in itself, of which, except by some almost unbearable misfortune, it could never be convinced. NO. IX. ITS HISTORY, AND THE EFFECTS OF THAT HISTORY.--CONCLUSION. A volume might seem wanted to say anything worth saying[12] on the History of the English Constitution, and a great and new volume might still be written on it, if a competent writer took it in hand. The subject has never been treated by any one combining the lights of the newest research and the lights of the most matured philosophy. Since the masterly book of Hallam was written, both political thought and historical knowledge have gained much, and we might have a treatise applying our strengthened calculus to our augmented facts. I do not pretend that I could write such a book, but there are a few salient particulars which may be fitly brought together, both because of their past interest and of their present importance. [12] Since the first edition of this book was published several valuable works have appeared, which, on many points, throw much light on our early constitutional history, especially Mr. Stubbs' Select Charters and other Illustrations of English Constitutional History, from the Earliest Times to the Reign of Edward the First, Mr. Freeman's lecture on "The Growth of the English Constitution," and the chapter on the Anglo-Saxon Constitution in his History of the Norman Conquest: but we have not yet a great and authoritative work on the whole subject such as I wished for when I wrote the passage in the text, and as it is most desirable that we should have. There is a certain common polity, or germ of polity, which we find in all the rude nations that have attained civilisation. These nations seem to begin in what I may call a consultative and tentative absolutism. The king of early days, in vigorous nations, was not absolute as despots now are; there was then no standing army to repress rebellion, no organised ESPIONAGE to spy out discontent, no skilled bureaucracy to smooth the ruts of obedient life. The early king was indeed consecrated by a religious sanction; he was essentially a man apart, a man above others, divinely anointed or even God-begotten. But in nations capable of freedom this religious domination was never despotic. There was indeed no legal limit; the very words could not be translated into the dialect of those times. The notion of law as we have it--of a rule imposed by human authority, capable of being altered by that authority, when it likes, and in fact, so altered habitually--could not be conveyed to early nations, who regarded law half as an invincible prescription, and half as a Divine revelation. Law "came out of the king's mouth"; he gave it as Solomon gave judgment--embedded in the particular case, and upon the authority of Heaven as well as his own. A Divine limit to the Divine revealer was impossible, and there was no other source of law. But though there was no legal limit, there was a practical limit to subjection in (what may be called) the pagan part of human nature--the inseparable obstinacy of freemen. They NEVER would do exactly what they were told. To early royalty, as Homer describes it in Greece and as we may well imagine it elsewhere, there were always two adjuncts: one the "old men," the men of weight, the council, the _boulé_, of which the king asked advice, from the debates in which the king tried to learn what he could do and what he ought to do. Besides this there was the _agorá_, the purely listening assembly, as some have called it, but the TENTATIVE assembly, as I think it might best be called. The king came down to his assembled people in form to announce his will, but in reality, speaking in very modern words, to "feel his way". He was sacred, no doubt; and popular, very likely; still he was half like a popular Premier speaking to a high-spirited chamber; there were limits to his authority and power--limits which he would discover by trying whether eager cheers received his mandate, or only hollow murmurs and a thinking silence. This polity is a good one for its era and its place, but there is a fatal defect in it. The reverential associations upon which the government is built are transmitted according to one law, and the capacity needful to work the government is transmitted according to another law. The popular homage clings to the line of god-descended kings; it is transmitted by inheritance. But very soon that line comes to a child or an idiot, or one by some defect or other incapable. Then we find everywhere the truth of the old saying, that liberty thrives under weak princes; then the listening assembly begins not only to murmur, but to speak; then the grave council begins not so much to suggest as to inculcate, not so much to advise as to enjoin. Mr. Grote has told at length how out of these appendages of the original kingdom the free States of Greece derived their origin, and how they gradually grew--the oligarchical States expanding the council, and the democratical expanding the assembly. The history has as many varieties in detail as there were Greek cities, but the essence is the same everywhere. The political characteristic of the early Greeks, and of the early Romans, too, is that out of the tentacula of a monarchy they developed the organs of a republic. English history has been in substance the same, though its form is different, and its growth far slower and longer. The scale was larger, and the elements more various. A Greek city soon got rid of its kings, for the political sacredness of the monarch would not bear the daily inspection and constant criticism of an eager and talking multitude. Everywhere in Greece the slave population--the most ignorant, and therefore the most unsusceptible of intellectual influences--was struck out of the account. But England began as a kingdom of considerable size, inhabited by distinct races, none of them fit for prosaic criticism, and all subject to the superstition of royalty. In early England, too, royalty was much more than a superstition. A very strong executive was needed to keep down a divided, an armed, and an impatient country; and therefore the problem of political development was delicate. A formed free government in a homogeneous nation may have a strong executive; but during the transition state, while the republic is in course of development and the monarchy in course of decay, the executive is of necessity weak. The polity is divided, and its action feeble and failing. The different orders of English people have progressed, too, at different rates. The change in the state of the higher classes since the Middle Ages is enormous, and it is all improvement; but the lower have varied little, and many argue that in some important respects they have got worse, even if in others they have got better. The development of the English Constitution was of necessity slow, because a quick one would have destroyed the executive and killed the State, and because the most numerous classes, who changed very little, were not prepared for any catastrophic change in our institutions. I cannot presume to speak of the time before the Conquest, and the exact nature even of all Anglo-Norman institutions is perhaps dubious: at least, in nearly all cases there have been many controversies. Political zeal, whether Whig or Tory, has wanted to find a model in the past; and the whole state of society being confused, the precedents altering with the caprice of men and the chance of events, ingenious advocacy has had a happy field. But all that I need speak of is quite plain. There was a great "council" of the realm, to which the king summoned the most considerable persons in England, the persons he most wanted to advise him, and the persons whose tempers he was most anxious to ascertain. Exactly who came to it at first is obscure and unimportant. I need not distinguish between the "magnum concilium in Parliament" and the "magnum concilium out of Parliament". Gradually the principal assemblies summoned by the English sovereign took the precise and definite form of Lords and Commons, as in their outside we now see them. But their real nature was very different. The Parliament of to-day is a ruling body; the mediaeval Parliament was, if I may so say, an EXPRESSIVE body. Its function was to tell the executive--the king--what the nation wished he should do; to some extent, to guide him by new wisdom, and, to a very great extent, to guide him by new facts. These facts were their own feelings, which were the feelings of the people, because they were part and parcel of the people. From thence the king learned, or had the means to learn, what the nation would endure, and what it would not endure;--what he might do, and what he might not do. If he much mistook this, there was a rebellion. There are, as is well known, three great periods in the English Constitution. The first of these is the ante-Tudor period. The English Parliament then seemed to be gaining extraordinary strength and power. The title to the Crown was uncertain; some monarchs were imbecile. Many ambitious men wanted to "take the people into partnership". Certain precedents of that time were cited with grave authority centuries after, when the time of freedom had really arrived. But the causes of this rapid growth soon produced an even more sudden decline. Confusion fostered it, and confusion destroyed it. The structure of society then was feudal; the towns were only an adjunct and a make-weight. The principal popular force was an aristocratic force, acting with the co-operation of the gentry and yeomanry, and resting on the loyal fealty of sworn retainers. The head of this force, on whom its efficiency depended, was the high nobility. But the high nobility killed itself out. The great barons who adhered to the "Red Rose" or the "White Rose," or who fluctuated from one to the other, became poorer, fewer, and less potent every year. When the great struggle ended at Bosworth, a large part of the greatest combatants were gone. The restless, aspiring, rich barons, who made the civil war, were broken by it. Henry VII. attained a kingdom in which there was a Parliament to advise, but scarcely a Parliament to control. The consultative government of the ante-Tudor period had little resemblance to some of the modern governments which French philosophers call by that name. The French Empire, I believe, calls itself so. But its assemblies are symmetrical "shams". They are elected by a universal suffrage, by the ballot, and in districts once marked out with an eye to equality, and still retaining a look of equality. But our English Parliaments were UNsymmetrical realities. They were elected anyhow; the sheriff had a considerable licence in sending writs to boroughs, that is, he could in part pick its constituencies; and in each borough there was a rush and scramble for the franchise, so that the strongest local party got it, whether few or many. But in England at that time there was a great and distinct desire to know the opinion of the nation, because there was a real and close necessity. The nation was wanted to do something--to assist the sovereign in some war, to pay some old debt, to contribute its force and aid in the critical conjuncture of the time. It would not have suited the ante-Tudor kings to have had a fictitious assembly; they would have lost their sole FEELER, their only instrument for discovering national opinion. Nor could they have manufactured such an assembly if they wished. The instrument in that behalf is the centralised executive, and there was then no 'prefet' by whom the opinion of a rural locality could be made to order, and adjusted to suit the wishes of the capital. Looking at the mode of election a theorist would say that these Parliaments were but "chance" collections of influential Englishmen. There would be many corrections and limitations to add to that statement if it were wanted to make it accurate, but the statement itself hits exactly the principal excellence of those Parliaments. If not "chance" collections of Englishmen, they were "undesigned" collections; no administrations made them or could make them. They were bona-fide counsellors, whose opinion might be wise or unwise, but was anyhow of paramount importance, because their co-operation was wanted for what was in hand. Legislation as a positive power was very secondary in those old Parliaments. I believe no statute at all, as far as we know, was passed in the reign of Richard I., and all the ante-Tudor acts together would look meagre enough to a modern Parliamentary agent who had to live by them. But the negative action of Parliament upon the law was essential to its whole idea, and ran through every part of its use. That the king could not change what was then the almost sacred datum of the common law, without seeing whether his nation liked it or not, was an essential part of the "tentative" system. The king had to feel his way in this exceptional, singular act, as those ages deemed original legislation, as well as in lesser acts. The legislation was his at last; he enacted after consulting his Lords and Commons; his was the sacred mouth which gave holy firmness to the enactment; but he only dared alter the rule regulating the common life of his people after consulting those people; he would not have been obeyed if he had not, by a rude age which did not fear civil war as we fear it now. Many most important enactments of that period (and the fact is most characteristic) are declaratory acts. They do not profess to enjoin by inherent authority what the law shall in future be, but to state and mark what the law is; they are declarations of immemorial custom, not precepts of new duties. Even in the "Great Charter" the notion of new enactments was secondary, it was a great mixture of old and new; it was a sort of compact defining what was doubtful in floating custom, and was re-enacted over and over again, as boundaries are perambulated once a year, and rights and claims tending to desuetude thereby made patent and cleared of new obstructions. In truth, such great "charters" were rather treaties between different orders and factions, confirming ancient rights, or what claimed to be such, than laws in our ordinary sense. They were the "deeds of arrangement" of mediaeval society affirmed and re-affirmed from time to time, and the principal controversy was, of course, between the king and nation--the king trying to see how far the nation would let him go, and the nation murmuring and recalcitrating, and seeing how many acts of administration they could prevent, and how many of its claims they could resist. Sir James Mackintosh says that Magna Charta "converted the right of taxation into the shield of liberty," but it did nothing of the sort. The liberty existed before, and the right to be taxed was an efflorescence and instance of it, not a sub-stratum or a cause. The necessity of consulting the great council of the realm before taxation, the principle that the declaration of grievances by the Parliament was to precede the grant of supplies to the sovereign, are but conspicuous instances of the primitive doctrine of the ante-Tudor period, that the king must consult the great council of the realm, before he did anything, since he always wanted help. The right of self-taxation was justly inserted in the "great treaty"; but it would have been a dead letter, save for the armed force and aristocratic organisation which compelled the king to make a treaty; it was a result, not a basis--an example, not a cause. The civil wars of many years killed out the old councils (if I might so say): that is, destroyed three parts of the greater nobility, who were its most potent members, tired the small nobility and the gentry, and overthrew the aristocratic organisation on which all previous effectual resistance to the sovereign had been based. The second period of the British Constitution begins with the accession of the House of Tudor, and goes down to 1688; it is in substance the history of the growth, development, and gradually acquired supremacy of the new great council. I have no room and no occasion to narrate again the familiar history of the many steps by which the slavish Parliament of Henry VIII. grew into the murmuring Parliament of Queen Elizabeth, the mutinous Parliament of James I., and the rebellious Parliament of Charles I. The steps were many, but the energy was one--the growth of the English middle-class, using that word in its most inclusive sense, and its animation under the influence of Protestantism. No one, I think, can doubt that Lord Macaulay is right in saying that political causes would not alone have then provoked such a resistance to the sovereign unless propelled by religious theory. Of course the English people went to and fro from Catholicism to Protestantism, and from Protestantism to Catholicism (not to mention that the Protestantism was of several shades and sects), just as the first Tudor kings and queens wished. But that was in the pre-Puritan era. The mass of Englishmen were in an undecided state, just as Hooper tells us his father was--"Not believing in Protestantism, yet not disinclined to it". Gradually, however, a strong Evangelic spirit (as we should now speak) and a still stronger anti-Papal spirit entered into the middle sort of Englishmen, and added to that force, fibre, and substance which they have never wanted, an ideal warmth and fervour which they have almost always wanted. Hence the saying that Cromwell founded the English Constitution. Of course, in seeming, Cromwell's work died with him; his dynasty was rejected, his republic cast aside; but the spirit which culminated in him never sank again, never ceased to be a potent, though often a latent and volcanic force in the country. Charles II. said that he would never go again on his travels for anything or anybody; and he well knew that though the men whom he met at Worcester might be dead, still the spirit which warmed them was alive and young in others. But the Cromwellian republic and the strict Puritan creed were utterly hateful to most Englishmen. They were, if I may venture on saying so, like the "Rouge" element in France and elsewhere--the sole revolutionary force in the entire State, and were hated as such. That force could do little of itself; indeed, its bare appearance tended to frighten and alienate the moderate and dull as well as the refined and reasoning classes. Alone it was impotent against the solid clay of the English apathetic nature. But give this fiery element a body of decent-looking earth; give it an excuse for breaking out on an occasion, when the decent, the cultivated, and aristocratic classes could join with it, and they would conquer by means of it, and it could be disguised in their covering. Such an excuse was found in 1688. James II., by incredible and pertinacious folly, irritated not only the classes which had fought AGAINST his father, but also those who had fought FOR his father. He offended the Anglican classes as well as the Puritan classes; all the Whig nobles, and half the Tory nobles, as well as the dissenting bourgeois. The rule of Parliament was established by the concurrence of the usual supporters of royalty with the usual opponents of it. But the result was long weak. Our revolution has been called the minimum of a revolution, because in law, at least, it only changed the dynasty, but exactly on that account it was the greatest shock to the common multitude, who see the dynasty but see nothing else. The support of the main aristocracy held together the bulk of the deferential classes, but it held them together imperfectly, uneasily, and unwillingly. Huge masses of crude prejudice swayed hither and thither for many years. If an able Stuart had with credible sincerity professed Protestantism probably he might have overturned the House of Hanover. So strong was inbred reverence for hereditary right, that until the accession of George III. the English Government was always subject to the unceasing attrition of a competitive sovereign. This was the result of what I insist on tediously, but what is most necessary to insist on, for it is a cardinal particular in the whole topic. Many of the English people--the higher and more educated portion--had come to comprehend the nature of constitutional government, but the mass did not comprehend it. They looked to the sovereign as the Government, and to the sovereign only. These were carried forward by the magic of the aristocracy and principally by the influence of the great Whig families with their adjuncts. Without that aid reason or liberty would never have held them. Though the rule of Parliament was definitely established in 1688, yet the mode of exercising that rule has since changed. At first Parliament did not know how to exercise it; the organisation of parties and the appointment of Cabinets by parties grew up in the manner Macaulay has described so well. Up to the latest period the sovereign was supposed, to a most mischievous extent, to interfere in the choice of the persons to be Ministers. When George III. finally became insane, in 1810, every one believed that George IV., on assuming power as Prince Regent, would turn out Mr. Perceval's Government and empower Lord Grey or Lord Grenville, the Whig leaders, to form another. The Tory Ministry was carrying on a successful war--a war of existence--against Napoleon; but in the people's minds, the necessity at such an occasion for an unchanged Government did not outweigh the fancy that George IV. was a Whig. And a Whig it is true he had been before the French Revolution, when he lived an indescribable life in St. James's Street with Mr. Fox. But Lord Grey and Lord Grenville were rigid men, and had no immoral sort of influence. What liberalism of opinion the Regent ever had was frightened out of him (as of other people) by the Reign of Terror. He felt, according to the saying of another monarch, that "he lived by being a royalist". It soon appeared that he was most anxious to retain Mr. Perceval, and that he was most eager to quarrel with the Whig Lords. As we all know, he kept the Ministry whom he found in office; but that it should have been thought he could then change them, is a significant example how exceedingly modern our notions of the despotic action of Parliament in fact are. By the steps of the struggle thus rudely mentioned (and by others which I have no room to speak of, nor need I), the change which in the Greek cities was effected both in appearance and in fact, has been effected in England, though in reality only, and not in outside. Here, too, the appendages of a monarchy have been converted into the essence of a republic; only here, because of a more numerous heterogeneous political population, it is needful to keep the ancient show while we secretly interpolate the new reality. This long and curious history has left its trace on almost every part of our present political condition; its effects lie at the root of many of our most important controversies; and because these effects are not rightly perceived, many of these controversies are misconceived. One of the most curious peculiarities of the English people is its dislike of the executive government. We are not in this respect "un vrai peuple moderne," like the Americans. The Americans conceive of the executive as one of their appointed agents; when it intervenes in common life, it does so, they consider, in virtue of the mandate of the sovereign people, and there is no invasion or dereliction of freedom in that people interfering with itself. The French, the Swiss, and all nations who breathe the full atmosphere of the nineteenth century, think so too. The material necessities of this age require a strong executive; a nation destitute of it cannot be clean, or healthy, or vigorous, like a nation possessing it. By definition, a nation calling itself free should have no jealousy of the executive, for freedom means that the nation, the political part of the nation, wields the executive. But our history has reversed the English feeling: our freedom is the result of centuries of resistance, more or less legal, or more or less illegal, more or less audacious, or more or less timid, to the executive government. We have, accordingly, inherited the traditions of conflict, and preserve them in the fulness of victory. We look on State action, not as our own action, but as alien action; as an imposed tyranny from without, not as the consummated result of our own organised wishes. I remember at the census of 1851 hearing a very sensible old lady say that the "liberties of England were at an end"; if Government might be thus inquisitorial, if they might ask who slept in your house, or what your age was, what, she argued, might they not ask and what might they not do? The natural impulse of the English people is to resist authority. The introduction of effectual policemen was not liked; I know people, old people, I admit, who to this day consider them an infringement of freedom, and an imitation of the gendarmes of France. If the original policemen had been started with the present helmets, the result might have been dubious; there might have been a cry of military tyranny, and the inbred insubordination of the English people might have prevailed over the very modern love of PERFECT peace and order. The old notion that the Government is an extrinsic agency still rules our imaginations, though it is no longer true, and though in calm and intellectual moments we well know it is not. Nor is it merely our history which produces this effect; we might get over that; but the results of that history co-operate. Our double Government so acts: when we want to point the antipathy to the executive, we refer to the jealousy of the Crown, so deeply embedded in the very substance of constitutional authority; so many people are loth to admit the Queen, in spite of law and fact, to be the people's appointee and agent, that it is a good rhetorical emphasis to speak of her prerogative as something NON-popular, and therefore to be distrusted. By the very nature of our government our executive cannot be liked and trusted as the Swiss or the American is liked and trusted. Out of the same history and the same results proceed our tolerance of those "local authorities" which so puzzle many foreigners. In the struggle with the Crown these local centres served as props and fulcrums. In the early Parliaments it was the local bodies who sent members to Parliament, the counties, and the boroughs; and in that way, and because of THEIR free life, the Parliament was free too. If active real bodies had not sent the representatives, they would have been powerless. This is very much the reason why our old rights of suffrage were so various; the Government let whatever people happened to be the strongest in each town choose the members. They applied to the electing bodies the test of "natural selection"; whatever set of people were locally strong enough to elect, did so. Afterwards in the civil war, many of the corporations, like that of London, were important bases of resistance. The case of London is typical and remarkable. Probably, if there is any body more than another which an educated Englishman nowadays regards with little favour, it is the Corporation of London. He connects it with hereditary abuses perfectly preserved, with large revenues imperfectly accounted for, with a system which stops the principal city government at an old archway, with the perpetuation of a hundred detestable parishes, with the maintenance of a horde of luxurious and useless bodies. For the want of all which makes Paris nice and splendid we justly reproach the Corporation of London; for the existence of much of what makes London mean and squalid we justly reproach it too. Yet the Corporation of London was for centuries a bulwark of English liberty. The conscious support of the near and organised capital gave the Long Parliament a vigour and vitality which they could have found nowhere else. Their leading patriots took refuge in the City, and the nearest approach to an English "sitting in permanence" is the committee at Guildhall, where all members "that came were to have voices". Down to George III.'s time the City was a useful centre of popular judgment. Here, as elsewhere, we have built into our polity pieces of the scaffolding by which it was erected. De Tocqueville indeed used to maintain that in this matter the English were not merely historically excusable but likewise politically judicious. He founded what may be called the culte of corporations. And it was natural, that in France, where there is scarcely any power of self-organisation in the people, where the prefet must be asked upon every subject, and take the initiative in every movement, a solitary thinker should be repelled from the exaggerations of which he knew the evil, to the contrary exaggeration of which he did not. But in a country like England where business is in the air, where we can organise a vigilance committee on every abuse and an executive committee for every remedy--as a matter of political instruction, which was De Tocqueville's point--we need not care how much power is delegated to outlying bodies, and how much is kept for the central body. We have had the instruction municipalities could give us: we have been through all that. Now we are quite grown up, and can put away childish things. The same causes account for the innumerable anomalies of our polity. I own that I do not entirely sympathise with the horror of these anomalies which haunts some of our best critics. It is natural that those who by special and admirable culture have come to look at all things upon the artistic side, should start back from these queer peculiarities. But it is natural also that persons used to analyse political institutions should look at these anomalies with a little tenderness and a little interest. They MAY have something to teach us. Political philosophy is still more imperfect; it has been framed from observations taken upon regular specimens of politics and States; as to these its teaching is most valuable. But we must ever remember that its data are imperfect. The lessons are good where its primitive assumptions hold, but may be false where those assumptions fail. A philosophical politician regards a political anomaly as a scientific physician regards a rare disease--it is to him an "interesting case". There may still be instruction here, though we have worked out the lessons of common cases. I cannot, therefore, join in the full cry against anomalies; in my judgment it may quickly overrun the scent, and so miss what we should be glad to find. Subject to this saving remark, however, I not only admit, but maintain, that our Constitution is full of curious oddities, which are impeding and mischievous, and ought to be struck out. Our law very often reminds one of those outskirts of cities where you cannot for a long time tell how the streets come to wind about in so capricious and serpent-like a manner. At last it strikes you that they grew up, house by house, on the devious tracks of the old green lanes; and if you follow on to the existing fields, you may often find the change half complete. Just so the lines of our Constitution were framed in old eras of sparse population, few wants, and simple habits; and we adhere in seeming to their shape, though civilisation has come with its dangers, complications, and enjoyments. These anomalies, in a hundred instances, mark the old boundaries of a constitutional struggle. The casual line was traced according to the strength of deceased combatants; succeeding generations fought elsewhere; and the hesitating line of a half-drawn battle was left to stand for a perpetual limit. I do not count as an anomaly the existence of our double government, with all its infinite accidents, though half the superficial peculiarities that are often complained of arise out of it. The co-existence of a Queen's seeming prerogative and a Downing Street's real government is just suited to such a country as this, in such an age as ours.[13] [13] So well is our real government concealed, that if you tell a cabman to drive to "Downing Street," he most likely will never have heard of it, and will not in the least know where to take you. It is only a "disguised republic". [The End] 
10807	----	Proofreading Team THE CONSTITUTIONAL HISTORY OF ENGLAND from 1760 to 1860 BY CHARLES DUKE YONGE, M.A. REGIUS PROFESSOR OF MODERN HISTORY, QUEEN'S COLLEGE, BELFAST AND AUTHOR OF "THE HISTORY OF THE BRITISH NAVY" "THE LIFE OF MARIE ANTOINETTE" ETC. 1882 PREFACE. Mr. Hallam's "Constitutional History" closes, as is well known, with the death of George II. The Reformation, the great Rebellion, and the Revolution, all of which are embraced in the period of which it treats, are events of such surpassing importance, and such all-pervading and lasting influence, that no subsequent transactions can ever attract entirely equal attention. Yet the century which has elapsed since the accession of George III. has also witnessed occurrences not only full of exciting interest at the moment, but calculated to affect the policy of the kingdom and the condition of the people, for all future time, in a degree only second to the Revolution itself. Indeed, the change in some leading features and principles of the constitution wrought by the Reform Bill of 1832, exceeds any that were enacted by the Bill of Rights or the Act of Settlement. The only absolutely new principle introduced in 1688 was that establishment of Protestant ascendency which was contained in the clause which disabled any Roman Catholic from wearing the crown. In other respects, those great statutes were not so much the introduction of new principles, as a recognition of privileges of the people which had been long established, but which, in too many instances, had been disregarded and violated. But the Reform Bill conferred political power on classes which had never before been admitted to be entitled to it; and their enfranchisement could not fail to give a wholly new and democratic tinge to the government, which has been visible in its effect on the policy of all subsequent administrations. And, besides this great measure, the passing of which has often been called a new Revolution, and the other reforms, municipal and ecclesiastical, which were its immediate and almost inevitable fruits, the century which followed the accession of George III. was also marked by the Irish Union, the abolition of slavery, the establishment of the principle of universal religious toleration; the loss of one great collection of colonies, the plantation of and grant of constitutions to others of not inferior magnitude, which had not even come into existence at its commencement; the growth of our wondrous dominion in India, with its eventual transfer of all authority in that country to the crown; with a host of minor transactions and enactments, which must all be regarded as, more or less, so many changes in or developments of the constitution, as it was regarded and understood by the statesmen of the seventeenth century. It has seemed, therefore, to the compiler of this volume, that a narrative of these transactions in their historical sequence, so as to exhibit the connection which has frequently existed between them; to show, for instance, how the repeal of Poynings' Act, and the Regency Bill of 1788, necessitated the Irish Union; how Catholic Emancipation brought after it Parliamentary Reform, and how that led to municipal and ecclesiastical reforms, might not be without interest and use at the present time. And the modern fulness of our parliamentary reports (itself one not unimportant reform and novelty), since the accession of George III., has enabled him to give the inducements or the objections to the different enactments in the very words of the legislators who proposed them or resisted them, as often as it seemed desirable to do so. CONTENTS. CHAPTER I. Mr. Hallam's View of the Development of the Constitution.--Symptoms of approaching Constitutional Changes.--State of the Kingdom at the Accession of George III.--Improvement of the Law affecting the Commissions of the Judges.--Restoration of Peace.--Lord Bute becomes Minister.--The Case of Wilkes.--Mr. Luttrell is Seated for Middlesex by the House of Commons.--Growth of Parliamentary Reporting.--Mr. Grenville's Act for trying Election Petitions.--Disfranchisement of Corrupt Voters at New Shoreham. CHAPTER II. The Regency Bill.--The Ministry of 1766 lay an Embargo on Corn.--An Act of Indemnity is Passed.--The _Nullum Tempus_ Act concerning Crown Property; it is sought to Extend it to Church Property, but the Attempt fails.--The Royal Marriage Act.--The Lords amend a Bill imposing Export Duties, etc., on Corn. CHAPTER III. Mr. Grenville imposes a Duty on Stamps in the North American Colonies.--Examination of Dr. Franklin.--Lord Rockingham's Ministry Repeals the Duty.--Lord Mansfield affirms a Virtual Representation in the Colonies.--Mr. C. Townsend imposes Import Duties in America.--After some Years, the Civil War breaks out.--Hanoverian Troops are sent to Gibraltar.--The Employment of Hanoverian Regiments at Gibraltar and Minorca.--End of the War.--Colonial Policy of the Present Reign.--Complaints of the Undue Influence of the Crown.--Motions for Parliamentary Reform.--Mr. Burke's Bill for Economical Reform.--Mr. Dunning's Resolution on the Influence of the Crown.--Rights of the Lords on Money-bills.--The Gordon Riots. CHAPTER IV. Changes of Administration.--The Coalition Ministry.--The Establishment of the Prince of Wales.--Fox's India Bill.--The King Defeats it by the Agency of Lord Temple.--The Ministry is Dismissed, and Succeeded by Mr. Pitt's Administration.--Opposition to the New Ministry in the House of Commons.--Merits of the Contest between the Old and the New Ministry.--Power of Pitt.--Pitt's India Bill.--Bill for the Government of Canada.--The Marriage of the Prince of Wales to Mrs. Fitzherbert.--The King becomes Deranged.--Proposal of a Regency.--Opinions of Various Writers on the Course adopted.--Spread of Revolutionary Societies and Opinions.--Bills for the Repression of Sedition and Treason.--The Alien Act.--The Traitorous Correspondence Act.--Treason and Sedition Bills.--Failure of some Prosecutions under them. CHAPTER V. The Affairs of Ireland.--Condition of the Irish Parliament.--The Octennial Bill.--The Penal Laws.--Non-residence of the Lord- lieutenant.--Influence of the American War on Ireland.--Enrolment of the Volunteers.--Concession of all the Demands of Ireland.--Violence of the Volunteers.--Their Convention.--Violence of the Opposition in Parliament: Mr. Brownlow, Mr. Grattan, Mr. Flood.--Pitt's Propositions Fail.--Fitzgibbon's Conspiracy Bill.--Regency Question.--Recovery of the King.--Question of a Legislative Union.--Establishment of Maynooth College.--Lord Edward Fitzgerald.--Arguments for and against the Union.--It passes the Irish Parliament.--Details of the Measure.-- General Character of the Union.--Circumstances which Prevented its Completeness. CHAPTER VI. A Census is Ordered.--Dissolution of Pitt's Administration.--Impeachment of Lord Melville.--Introduction of Lord Ellenborough into the Cabinet.--Abolition of the Slave-trade.--Mr. Windham's Compulsory Training Bill.--Illness of the King, and Regency.--Recurrence to the Precedent of 1788-'89.--Death of Mr. Perceval.--Lord Liverpool becomes Prime-minister.--Question of Appointments in the Household.--Appointment of a Prime-minister. CHAPTER VII. The Toleration Act.--Impropriety of making Catholic Emancipation (or any other Important Matter) an Open Question.--Joint Responsibility of all the Ministers.--Detention of Napoleon at St. Helena.--Question whether the Regent could Give Evidence in a Court of Law in a Civil Action.--Agitation for Reform.--Public Meetings.--The Manchester Meeting.--The Seditious Meetings Prevention Bill.--Lord Sidmouth's Six Acts. CHAPTER VIII. Survey of the Reign of George III.--The Cato Street Conspiracy.--The Queen's Return to England, and the Proceedings against her.--The King Visits Ireland and Scotland.--Reform of the Criminal Code.--Freedom of Trade.--Death of Lord Liverpool.--The Duke of Wellington becomes Prime-minister.--Repeal of the Test and Corporation Act.--O'Connell is Elected for Clare.--Peel Resigns his Seat for Oxford.--Catholic Emancipation.--Question of the Endowment of the Roman Catholic Clergy.--Constitutional Character of the Emancipation.--The Propriety of Mr. Peel's Resignation of his Seat for Oxford Questioned. CHAPTER IX. Demand for Parliamentary Reform.--Death of George IV., and Accession of William IV.--French Revolution of 1830.--Growing Feeling in Favor of Reform.--Duke of Wellington's Declaration against Reform.--His Resignation: Lord Grey becomes Prime-minister.--Introduction of the Reform Bill.--Its Details.--Riots at Bristol and Nottingham.--Proposed Creation of Peers.--The King's Message to the Peers.--Character and Consequences of the Reform Bill.--Appointment of a Regency.-- Re-arrangement of the Civil List. CHAPTER X. Abolition of Slavery.--Abridgment of the Apprenticeship.--The East India Company's Trade is Thrown Open.--Commencement of Ecclesiastical Reforms.--The New Poor-law.--State of Ireland.--Agitation against Tithes.--Coercion Bill.--Beginning of Church Reform.--Sir Robert Peel becomes Prime-minister.--Variety of Offices held Provisionally by the Duke of Wellington.--Sir Robert Peel Retires, and Lord Melbourne Resumes the Government.--Sir Robert Peel Proposes a Measure of Church Reform.--Municipal Reform.--Measures of Ecclesiastical Reform. CHAPTER XI. Death of William IV., and Accession of Queen Victoria.--Rise of the Chartists.--Resignation of Lord Melbourne in 1839, and his Resumption of Office.--Marriage of the Queen, and Consequent Arrangements.--The Precedence of the Prince, etc.--Post-office Reform.--War in Afghanistan.--Discontent in Jamaica.--Insurrection in Canada.--New Constitution for Canada and other Colonies.--Case of Stockdale and Hansard. CHAPTER XII. Sir Robert Peel becomes Prime-minister.--Commercial Reforms.--Free-trade.--Religious Toleration.--Maynooth.--The Queen's University.--Post-office Regulations.--The Opening of Letters.-- Naturalization of Aliens.--Recall of Lord Ellenborough.--Reversal of the Vote on the Sugar Duties.--Refusal of the Crown to Sanction a Bill.--The Question of Increase in the Number of Spiritual Peers.--Repeal of the Corn-laws.--Revolution in France, and Agitation on the Continent.--Death of Sir Robert Peel.--Indifference of the Country to Reform.--Repeal of the Navigation Laws.--Resolutions in Favor of Free-trade.--The Great Exhibition of 1851. CHAPTER XIII. Dismissal of Lord Palmerston.--Theory of the Relation between the Sovereign and the Cabinet.--Correspondence of the Sovereign with French Princes.--Russian War.--Abolition of the Tax on Newspapers.--Life Peerages.--Resignation of two Bishops.--Indian Mutiny.--Abolition of the Sovereign Power of the Company.--Visit of the Prince of Wales to India.--Conspiracy Bill.--Rise of the Volunteers.--National Fortifications.--The Lords Reject the Measure for the Repeal of the Paper-duties.--Lord Palmerston's Resolutions.--Character of the Changes during the last Century. INDEX. CONSTITUTIONAL HISTORY OF ENGLAND. CHAPTER I. Mr. Hallam's View of the Development of the Constitution.--Symptoms of approaching Constitutional Changes.--State of the Kingdom at the Accession of George III.--Improvement of the Law affecting the Commissions of the Judges.--Restoration of Peace.--Lord Bute becomes Minister.--The Case of Wilkes.--Mr. Luttrell is Seated for Middlesex by the House of Commons.--Growth of Parliamentary Reporting.--Mr. Grenville's Act for trying Election Petitions.--Disfranchisement of Corrupt Voters at New Shoreham. The learned and judicious writer to whom is due the first idea of a "Constitutional History of England," and of whose admirable work I here venture to offer a continuation, regards "the spirit of the government" as having been "almost wholly monarchical till the Revolution of 1688," and in the four subsequent reigns, with the last of which his volumes close, as "having turned chiefly to an aristocracy."[1] And it may be considered as having generally preserved that character through the long and eventful reign of George III. But, even while he was writing, a change was already preparing, of which more than one recent occurrence had given unmistakable warning. A borough had been disfranchised for inveterate corruption in the first Parliament of George IV.[2] Before its dissolution, the same House of Commons had sanctioned the principle of a state endowment of the Roman Catholic clergy in Ireland, and had given a third reading to a bill for the abolition of all civil restrictions affecting members of that religion. It was impossible to avoid foreseeing that the Parliamentary Reform inaugurated by the disfranchisement of Grampound would soon be carried farther, or that the emancipation, as it was termed, of all Christian sects was at least equally certain not to be long delayed. And it will be denied by no one that those measures, which had no very obscure or doubtful connection with each other, have gradually imparted to the constitution a far more democratic tinge than would have been willingly accepted by even the most liberal statesman of the preceding century, or than, in the days of the Tudors or of the Stuarts, would have been thought compatible with the maintenance of the monarchy. When George III. came to the throne, he found the nation engaged in a war which was occupying its arms not only on the Continent of Europe, but in India and America also, and was extending her glory and her substantial power in both hemispheres. _Inter arma silent leges_. And, while the contest lasted, neither legislators in Parliament nor the people outside had much attention to spare for matters of domestic policy. Yet the first year of the new reign was not suffered to pass without the introduction of one measure limiting the royal prerogative in a matter of paramount importance to the liberty of the people, the independence of the judges. The rule of making the commissions of the judges depend on their good conduct instead of on the pleasure of the crown had, indeed, been established at the Revolution; but it was still held that these commissions expired with the life of the sovereign who had granted them; and, at the accession of Anne, as also at that of George II., a renewal of their commissions had been withheld from some members of the judicial bench. But now, even before the dissolution of the existing Parliament, the new King recommended to it such a change in the law as should "secure the judges in the enjoyment of their offices during their good behavior, notwithstanding any demise of the crown;" giving the proposal, which was understood to have been originally suggested by himself, additional weight by the very unusual step of making it the subject of a speech to the two Houses in the middle of the session. A bill to give effect to it was at once brought in, and, though the Houses sat only a fortnight longer, was carried before the dissolution. The close of the year 1762, however, saw the restoration of peace; and the circumstances connected with the treaty which re-established it gave birth to a degree of political and constitutional excitement such as had not agitated the kingdom for more than half a century. That treaty had not been concluded by the minister who had conducted the war. When George III. came to the throne he found the Duke of Newcastle presiding at the Treasury, but the seals of one Secretary of State in the hands of Mr. Pitt, who was universally regarded as the guiding genius of the ministry. The other Secretary of State was Lord Holdernesse. But, in the spring of 1761, as soon as the Parliament was dissolved,[3] that statesman retired from office, and was succeeded by the Earl of Bute, a Scotch nobleman, who stood high in the favor of the King's mother, the Princess Dowager of Wales, but who had not till very recently been supposed to be actuated by political ambition, and who was still less suspected of any statesman-like ability to qualify him for the office to which he was thus promoted. It was presently seen, however, that he aspired to even higher dignity. He at once set himself to oppose Pitt's warlike policy; and, on the question of declaring war against Spain, he was so successful in inducing the rest of the cabinet to reject Pitt's proposals, that that statesman resigned his office in unconcealed indignation. Having got rid of the real master of the ministry, Bute's next step was to get rid of its nominal chief, and in the spring of 1762 he managed to drive the Duke of Newcastle from the Treasury, and was himself placed by the King at the head of the administration. So rapid an elevation of a man previously unknown as a politician could hardly fail to create very widespread dissatisfaction, which was in some degree augmented by the nationality of the new minister. Lord Bute was a Scotchman, and Englishmen had not wholly forgiven or forgotten the Scotch invasion of 1745. Since that time the Scotch had been regarded with general disfavor; Scotch poverty and Scotch greediness for the good things of England had furnished constant topics for raillery and sarcasm; and more than one demagogue and political writer had sought popularity by pandering to the prevailing taste for attacks on the whole nation. Foremost among these was Mr. John Wilkes, member for Aylesbury, a man of broken fortunes and still more damaged character, but of a wit and hardihood that made his society acceptable to some of high rank and lax morality, and caused his political alliance to be courted by some who desired to be regarded as leaders of a party; many of the transactions of the late reign having, unfortunately, not been favorable to the maintenance of any high standard of either public or private virtue. On Lord Bute's accession to office, Wilkes had set up a periodical paper, whose object and character were sufficiently indicated by its title, _The North Briton_, and in which the diligence of Lord Bute in distributing places among his kinsmen and countrymen furnished the staple of almost every number; while in many the Princess of Wales herself was not spared, as the cause, for motives not obscurely hinted at, of his sudden elevation. So pertinacious and virulent were the attacks thus launched at him, coinciding as they did, at least in one point, with the prejudices of the multitude, that they were commonly believed to have had some share in driving Lord Bute from office, which, in the spring of 1763, he suddenly resigned, hoping, as it might almost seem, thus to throw on his successor the burden of defending his measures. The most important of these measures had been the conclusion of the Treaty of Versailles, which, when it was first announced to Parliament, had been vehemently attacked in both Houses by Pitt and his followers, but had been approved by large majorities. Wilkes, however, not without reason, believed it to be still unpopular with the nation at large, and, flushed with his supposed victory over Lord Bute, was watching eagerly for some occasion of re-opening the question, when such an opportunity was afforded him by the King's speech at the prorogation of the Parliament, which took place a few days after Lord Bute's resignation. Lord Bute had been succeeded by Mr. George Grenville, who had for a time been one of his colleagues as Secretary of State; and on him, therefore, the duty devolved of framing the royal speech the opening sentences of which referred to "the re-establishment of peace" in terms of warm self-congratulation, as having been effected "upon conditions honorable to the crown and beneficial to the people." Wilkes at once caught at this panegyric, as affording him just such an opportunity as he had been seeking of renewing his attacks on the government, which he regarded as changed in nothing but the name of the Prime-minister.[4] And, four days after the prorogation,[5] he accordingly issued a new number of _The North Briton_ (No. 45), in which he heaped unmeasured sarcasm and invective on the peace itself, on the royal speech, and on the minister who had composed it. As if conscious that Mr. Grenville was less inclined by temper than Lord Bute to suffer such attacks without endeavoring to retaliate, he took especial pains to keep within the law in his strictures, and, accordingly, carefully avoided saying a disrespectful word of the King himself, whom he described as "a prince of many great and amiable qualities," "ever renowned for truth, honor, and unsullied virtue." But he claimed a right to canvass the speech "with the utmost freedom," since "it had always been considered by the Legislature and by the public at large as the speech of the minister." And he kept this distinction carefully in view through the whole number. The speech he denounced with bitter vehemence, as "an abandoned instance of ministerial effrontery," as containing "the most unjustifiable public declarations" and "infamous fallacies." The peace he affirmed to be "such as had drawn down the contempt of mankind on our wretched negotiators." And he described the present minister as a mere tool of "the favorite," by whom "he still meditated to rule the kingdom with a rod of iron." But in the whole number there was but one sentence which could be represented as implying the very slightest censure on the King himself, and even that was qualified by a personal eulogy. "The King of England," it said, "is not only the first magistrate of the country, but is invested by the law with the whole executive power. He is, however, responsible to his people for the due execution of the royal functions in the choice of ministers, etc., equally with the meanest of his subjects in his particular duty. The personal character of our present amiable sovereign makes us easy and happy that so great a power is lodged in such hands; but the favorite has given too just cause for him to escape the general odium. The prerogative of the crown is to exert the constitutional power intrusted to it in such a way, not of blind favor and partiality, but of wisdom and judgment. This is the spirit of our constitution. The people, too, have their prerogative; and I hope the fine words of Dryden will be engraven on our hearts, 'Freedom is the English subject's prerogative.'" These were the last sentences of No. 45. And in the present day it will hardly be thought that, however severe or even violent some of the epithets with which certain sentences of the royal speech were assailed may have been, the language exceeds the bounds of allowable political criticism. With respect to the King, indeed, however accompanied with personal compliments to himself those strictures may have been, it may be admitted that in asserting any responsibility whatever to the people on the part of the sovereign, even for the choice of his ministers, as being bound to exercise that choice "with wisdom and judgment," it goes somewhat beyond the strict theory of the constitution. Undoubtedly that theory is, that the minister chosen by the King is himself responsible for every circumstance or act which led to his appointment. This principle was established in the fullest manner in 1834, when, as will be seen hereafter, Sir Robert Peel admitted his entire responsibility for the dismissal of Lord Melbourne by King William IV., though it was notorious that he was in Italy at the time, and had not been consulted on the matter. But as yet such questions had not been as accurately examined as subsequent events caused them to be; and Wilkes's assertion of royal responsibility to this extent probably coincided with the general feeling on the subject.[6] At all events, the error contained in it, and the insinuation that due wisdom and judgment had not been displayed in the appointment of Mr. G. Grenville to the Treasury, were not so derogatory to the legitimate authority and dignity of the crown as to make the writer a fit subject for a criminal prosecution. But Mr. Grenville was of a bitter temper, never inclined to tolerate any strictures on his own judgment or capacity, and fully imbued with the conviction that the first duty of an English minister is to uphold the supreme authority of the Parliament, and to chastise any one who dares to call in question the wisdom of any one of its resolutions. But _The North Briton_ had done this, and more. No. 45 had not only denounced the treaty which both Houses had approved, but had insinuated in unmistakable language that their approval had been purchased by gross corruption (a fact which was, indeed, sufficiently notorious). And, consequently, Mr. Grenville determined to treat the number which contained the denunciation as a seditious libel, the publication of which was a criminal offence; and, by his direction, Lord Halifax, as Secretary of State, issued what was termed a general warrant--a warrant, that is, which did not name the person or persons against whom it was directed, but which commanded the apprehension of "the authors, printers, and publishers" of the offending paper, leaving the officers who were charged with its execution to decide who came under that description, or, in other words, who were guilty of the act charged, before they had been brought before any tribunal. The warrant was executed. Wilkes and some printers were apprehended; Wilkes himself, as if the minister's design had been to make the charge ridiculous by exaggeration, being consigned to the great state-prison of the Tower, such a use of which was generally limited to those impeached of high-treason. And, indeed, the commitment did declare that No. 45 of _The North Briton_ was "a libel tending to alienate the affections of the people from his Majesty, and to excite them to traitorous insurrections against the government." Wilkes instantly sued out a writ of _habeas corpus_, and was without hesitation released by the Court of Common Pleas, on the legal ground that, "as a member of the House of Commons, he was protected from arrest in all cases except treason, felony, or a breach of the peace;" a decision which, in the next session of Parliament, the minister endeavored to overbear by inducing both Houses to concur in a resolution that "privilege of Parliament did not extend to the case of publishing seditious libels." In his life of Lord Camden,[7] who was Chief-justice of the Common Pleas at the time, Lord Campbell expresses a warm approval of this resolution, as one "which would now be considered conclusive evidence of the law." But, with all respect to the memory of a writer who was himself a Chief-justice, we suspect that in this case he was advancing a position as an author engaged in the discussion of what had become a party question, which he would not have laid down from the Bench.[8] The resolution certainly did not make it law, since it was not confirmed by any royal assent; and to interpret the law is not within the province of the House of Commons, nor, except when sitting as a Court of Appeal, of the House of Lords. We may, however, fully agree with the principle which Lord Campbell at the same time lays down, that "privilege of Parliament should not be permitted to interfere with the execution of the criminal law of the country." And this doctrine has been so fully acquiesced in since, that members of both Houses have in more than one instance been imprisoned on conviction for libel. The legality of the species of warrant under which Wilkes had been arrested was, however, a question of far greater importance; and on that no formal decision was pronounced on this occasion, the Lieutenant of the Tower, in his return to the writ of _habeas corpus_, and the counsel employed on both sides, equally avoiding all mention of the character of the warrant. But it was indirectly determined shortly afterward. The leaders of the Opposition would fain have had the point settled by what, in truth, would not have settled it--another resolution of the House of Commons. But, though it was discussed in several warm debates, Grenville always contrived to baffle his adversaries, though on one occasion his majority dwindled to fourteen.[9] What, however, the House of Commons abstained from affirming was distinctly, though somewhat extra-judicially, asserted by Lord Camden, as Chief-justice of the Common Pleas. Wilkes, with some of the printers and others who had been arrested, had brought actions for false imprisonment, which came to be tried in his court; and they obtained such heavy damages that the officials who had been mulcted applied for new trials, on the plea of their being excessive. But the Chief-justice refused the applications, and upheld the verdict, on the ground that the juries, in their assessment of damages, had been "influenced by a righteous indignation at the conduct of those who sought to exercise arbitrary power over all the King's subjects, to violate Magna Charta, and to destroy the liberty of the kingdom, by insisting on the legality of this general warrant." Such a justification would hardly be admitted now. But, in a subsequent trial, a still higher authority, the Chief-justice of the King's Bench, Lord Mansfield, held language so similar, that, once more to quote the words of Lord Campbell, "without any formal judgment, general warrants have ever since been considered illegal." However, the release of Wilkes on the ground of his parliamentary privilege gave him but a momentary triumph, or rather respite. The prosecution was not abated by the decision that he could not be imprisoned before trial; while one effect of his liberation was to stimulate the minister to add another count to the indictment preferred against him, on which he might be expected to find it less easy to excite the sympathy of any party. Wilkes had not always confined his literary efforts to political pamphlets. There was a club named the Franciscans (in compliment to Sir Francis Dashwood, Lord Bute's Chancellor of the Exchequer, who, as well as Lord Sandwich, the First Lord of the Admiralty, was one of its members), which met at Medmenham Abbey, on the banks of the Thames, and there held revels whose license recalled the worst excesses of the preceding century. To this club Wilkes also belonged; and, in indulgence of tastes in harmony with such a brotherhood, he had composed a blasphemous and indecent parody on Pope's "Essay on Man," which he entitled "An Essay on Woman," and to which he appended a body of burlesque notes purporting to be the composition of Pope's latest commentator, the celebrated Dr. Warburton, Bishop of Gloucester. He had never published it (indeed, it may be doubted whether, even in that not very delicate age, any publisher could have been found to run the risk of issuing so scandalous a work), but he had printed a few copies in his own house, of which he designed to make presents to such friends as he expected to appreciate it. He had not, however, so far as it appears, given away a single copy, when, on the very first day of the next session of Parliament, Lord Sandwich himself brought the parody under the notice of the House of Lords. If there was a single member of the House whose delicacy was not likely to be shocked, and whose morals could not be injured by such a composition, it was certainly Lord Sandwich himself; but his zeal as a minister to support his chief kindled in him a sudden enthusiasm for the support of virtue and decency also; and, having obtained a copy by some surreptitious means, he now made a formal complaint of it to the House, contending that the use of the name of the Bishop of Gloucester as author of the notes constituted a breach of the privileges of the House. And he was seconded by the bishop himself, whose temper and judgment were, unhappily, very inferior to his learning and piety. It is recorded that he actually compared Wilkes to the devil, and then apologized to Satan for the comparison. But the Lords were in a humor to regard no violence against Wilkes as excessive; and, submitting to the guidance of the minister and the prelate, resolved that the "Essay on Woman,"[10] as also another poem by the same writer, a paraphrase of the "Veni Creator," was "a most scandalous, obscene, and impious libel," and presented an address to the King, requesting his Majesty "to give the most effectual orders for the immediate prosecution of the author." And, in the course of the next few weeks, the House of Commons outran the peers themselves in violence and manifest unfairness. They concurred with the Lords in ordering No. 45 of _The North Briton_ to be burnt by the common hangman, an order which was not carried out without great opposition on the part of the London populace, who made it the occasion of a very formidable riot, in which the sheriffs themselves incurred no little danger; and, by another resolution, they ordered Wilkes to attend in his place to answer the charge of having published the two works. But at the time when they made this order it was well known that he could not obey it. A few days before he had been challenged by a Mr. Martin, who till very recently had been one of the Secretaries of the Treasury, and who was generally believed to have prepared himself for the conflict by diligent practice with a pistol; and in the duel which ensued Wilkes had been severely wounded. It was not only notorious that he had been thus disabled, but he sent a physician and surgeon of admitted eminence in their profession, and of unquestioned honor, to testify to the fact at the bar of the House; and subsequently he forwarded written certificates to the same purport from some French doctors who had special knowledge of gunshot wounds. But the Commons declined to accept this evidence as sufficient, and directed two other doctors to examine him. Wilkes, however, refused to admit them: his refusal was treated as a sufficient ground for pronouncing him "guilty of a contempt of the authority of the House," and for deciding on his case in his absence; and, on the 19th of January, before the case had come on for trial, a resolution was carried that "Mr. Wilkes was guilty of writing and publishing _The North Briton_ (No. 45), which this House had voted to be a false, scandalous, and seditious libel, and that, for the said offence, he be expelled the House." At a later period of the year, he was tried on the two charges of publishing No. 45 and the "Essay on Woman," was found guilty of both, and, as he did not appear to receive judgment, in November, 1764, he was outlawed. So far, it may be said to have been a drawn battle. If, on the one hand, the minister had procured the expulsion of Wilkes, on the other hand Wilkes had gained great notoriety and a certain amount of sympathy, and had, moreover, enriched himself by considerable damages; and again, if the nation at large was a gainer by the condemnation of general warrants, even that advantage might be thought to be dearly gained by the discredit into which the Parliament had fallen through its intemperance. But the contest between Wilkes and the ministry was only closed for a time; and when it was revived, a singular freak of fortune caused the very minister who had led the proceedings against him on this occasion to appear as his advocate. To avoid the consequences of his outlawry, he had taken up his abode in Paris, waiting for a change of ministry, which, as he hoped, might bring into power some to whom he might look for greater favor. But when, though in the course of the next two years two fresh administrations were formed, it was seen that neither Lord Rockingham, the head of the first, nor the Duke of Grafton and Mr. Pitt (promoted to the Earldom of Chatham), the heads of the second, had any greater sympathy with him than Mr. Grenville, he became desperate, and looked out for some opportunity of giving effect to his discontent. He found it in the dissolution of Parliament, which took place in the spring of 1768. In spite of his outlawry, he instantly returned to England, and offered himself as a candidate for London. There, indeed, he did not succeed, though the populace was uproarious in his support, and drew his carriage through the streets as if in triumph. But, before the end of the month, he was returned at the head of the poll for Middlesex, when the mob celebrated his victory by great riot and outrages, breaking the windows of Lord Bute, as his old enemy, and of the Lord Mayor, as the representative of the City of London, which had rejected him, and insulting, and even in some instances beating, passers-by who refused to join in their cheers for "Wilkes and Liberty." He had already pledged himself to take the necessary steps to procure the reversal of his outlawry; and, in pursuance of his promise, he surrendered in the Court of King's Bench. But his removal to prison caused a renewal of the tumults with greater violence than before. The mob even rescued him from the officers who had him in custody; and when, having escaped from his deliverers, he, with a parade of obedience to the law, again surrendered himself voluntarily at the gate of the King's Bench Prison, they threatened to attack the jail itself, kindled a fire under its walls, which was not extinguished without some danger, and day after day assembled in such tumultuous and menacing crowds, that at last Lord Weymouth, the Secretary of State, wrote a letter to the Surrey magistrates, enjoining them to abstain from no measures which might seem necessary for the preservation of peace, even if that could only be effected by the employment of the soldiery. The riots grew more and more formidable, till at last the magistrates had no resource but to call out the troops, who, on one occasion, after they had been pelted with large stones, and in many instances severely injured, fired, killing or wounding several of the foremost rioters. So tragical an event seemed to Wilkes to furnish him with exactly such an opportunity as he desired to push himself into farther notoriety. He at once printed Lord Weymouth's letter, and circulated it, with an inflammatory comment, in which he described it as a composition having for its fruit "a horrid massacre, the consummation of a hellish plot deliberately planned." Too angry to be prudent, Lord Weymouth complained to the House of Lords of this publication as a breach of privilege, and the Lords formally represented it to the House of Commons as an insult deliberately offered to them by one of its members. There could be no doubt that such language as Wilkes had used was libellous. In its imputation of designs of deliberate wickedness, it very far exceeded the bitterest passages of _The North Briton_; and Lord Weymouth's colleagues, therefore, thought they might safely follow the precedent set in 1764, of branding the publication as a libel, and again procuring the expulsion of the libeller from the House of Commons. There were circumstances in the present case, such as the difference between the constituencies of Aylesbury and Middlesex, and the enthusiastic fervor in the offender's cause which the populace of the City had displayed, which made it very doubtful whether the precedent of 1764 were quite a safe one to follow; but the ministers not only disregarded every such consideration, but, as if they had wantonly designed to give their measure a bad appearance, and to furnish its opponents with the strongest additional argument against it, they mixed up with their present complaint a reference to former misdeeds of Wilkes with which it had no connection. On receiving the message of the Lords, they had summoned him to appear at the bar of the House of Commons, that he might be examined on the subject; but this proceeding was so far from intimidating him, that he not only avowed the publication of his comment on Lord Weymouth's letter, but gloried in it, asserting that he deserved the thanks of the people for bringing to light the true character of "that bloody scroll." Such language was regarded as an aggravation of his offence, and the Attorney-general moved that his comment on the letter "was an insolent, scandalous, and seditious libel;" and, when that motion had been carried, Lord Barrington followed it up with another, to the effect that "John Wilkes, Esq., a member of this House, who hath at the bar of this House confessed himself to be the author and publisher of what the House has resolved to be an insolent, scandalous, and seditious libel, and who has been convicted in the Court of King's Bench of having printed and published a seditious libel, and three[11] obscene and impious libels, and by the judgment of the said Court has been sentenced to undergo twenty-two months' imprisonment, and is now in execution under the said judgment, be expelled this House." This motion encountered a vigorous opposition, not only from Mr. Burke and the principal members of the Rockingham party, which now formed the regular Opposition, but also from Mr. Grenville, the former Prime-minister, who on the former occasion, in 1764, had himself moved the expulsion of the same offender. His speech on this occasion is the only one which is fully reported; and it deserved the distinction from the exhaustive way in which it dealt with every part of the question. It displayed no inclination to extenuate Wilkes's present offence, but it pointed out with great force the circumstance that the supporters of the motion were far from agreement as to the reasons by which they were guided; that some members of the greatest authority in the House, while they had avowed their intention of voting for the expulsion, had at the same time been careful to explain that the comment on Lord Weymouth's letter was not the ground of their vote; that so great a lawyer as Mr. Blackstone had asserted that that comment "had not been properly and regularly brought before the House," but had founded his intention to vote for the expulsion solely "upon that article of the charge which related to the three obscene and impious libels mentioned in it, disavowing in the most direct terms all the other articles." That, on the other hand, other members of deserved weight and influence, such as Lord Palmerston and Lord F. Campbell, had disdained the idea of regarding "the article of the three obscene and impious libels as affording any ground for their proceeding." So practised a debater as Mr. Grenville had but little difficulty, therefore, in arguing against the advocates of expulsion, when they were so divided that one portion of them did, in fact, reply to the other. But it would be superfluous here to enter into the arguments employed on either side to justify the expulsion, or to prove it to be unjustifiable, from a consideration of the character of either Wilkes or his publication. The strength and importance of Mr. Grenville's speech lay in the constitutional points which it raised. Some supporters of the ministers had dwelt upon the former expulsion, insisting that "a man who had been expelled by a former House of Commons could not possibly be deemed a proper person to sit in the present Parliament, unless he had some pardon to plead, or some merit to cancel his former offences." By a reference to the case of Sir R. Walpole, Mr. Grenville proved that this had not been the opinion of former Parliaments; and he contended, with unanswerable logic, that it would be very mischievous to the nation if such a principle should be now acted on, and such a precedent established, since, though employed in the first instance against the odious and the guilty, it might, when once established, be easily applied to, and made use of against, the meritorious and the innocent; and so the most eminent and deserving members of the state, under the color of such an example, by one arbitrary and discretionary vote of one House of Parliament, the worst species of ostracism, might be excluded from the public councils, cut off and proscribed from the rights of every subject of the realm, not for a term of years alone, but forever. He quoted from "L'Esprit des Lois" an assertion of Montesquieu, that "one of the excellences of the English constitution was, that the judicial power was separated from the legislative, and that there would be no liberty if they were blended together; the power over the life and liberty of the citizens would then be arbitrary, for the judge would be the legislator." And, having thus proved that it would be a violation of the recognized constitution to found a second expulsion on the first, he proceeded to argue that to expel him for this new offence would be impolitic and inexpedient, as a step which would inevitably lead to a contest with the constituency which he represented, since, "in the present disposition of the county of Middlesex, no one could entertain a doubt that Wilkes would be re-elected. The House would then probably think itself under a necessity of again expelling him, and he would as certainly be again re-elected. The House might, indeed, refuse to issue a new writ, which would be to deprive the freeholders of Middlesex of the right of choosing any other representative; but he could not believe that the House would think it fit to inflict such a punishment on the electors of a great county. Should it not do so, the other alternative would be to bring into the House as representative and knight of the shire for Middlesex a man chosen by a few voters only, in contradiction to the declared sense of a great majority of the freeholders on the face of the poll, upon the supposition that all the votes of the latter were forfeited and thrown away on account of the expulsion of Mr. Wilkes." It seemed premature to discuss that point before it arose, and therefore the Speaker contented himself for the present with saying that "he believed there was no example of such a proceeding; and that, if it should appear to be new and unfounded as the law of the land, or even if any reasonable doubt could be entertained of its legality, the attempt to forfeit the freeholders' votes in such a manner would be highly alarming and dangerous." Few prophecies have been more exactly fulfilled. The House did expel Mr. Wilkes; he did offer himself for re-election, and was re-elected; and the minister, in consequence, moved and carried a resolution that "John Wilkes, Esq., having been, in this session of Parliament, expelled this House, was and is incapable of being elected a member to serve in this present Parliament." And, in pursuance of this vote, a writ was again issued. At the end of another month the proceeding required to be repeated. Wilkes had again offered himself for re-election. No other candidate had presented himself, and, in answer to an inquiry, the under-sheriff reported that "no other candidate had been proposed but John Wilkes, Esq., and that no elector had given or tendered his vote for any other person." Once more the House resolved that he was "incapable of being elected," and issued a new writ. But on this second occasion the ministry had provided a rival candidate in the person of the Honorable H.K. Luttrell. He was duly proposed and seconded; a poll was taken and kept open for several days, and, as it appeared at the close that 1143 votes had been given for Wilkes and 296 for Mr. Luttrell, the sheriff again returned Wilkes as duly elected. A debate of singularly angry excitement arose on the reception of this return. Even lawyers, such as Mr. De Grey, the Attorney-general, and Sir Fletcher Norton, who had been Attorney-general, were not ashamed to denounce the conduct of the sheriff in returning Mr. Wilkes as "highly improper and indecent," as "a flying in the face of a resolution of the House of Commons;" and Sir Fletcher even ventured to advance the proposition that, "as the Commons were acting in a judicial capacity, their resolutions were equal to law." Lord North, too, the Chancellor of the Exchequer, as we learn from the "Parliamentary History," "spoke long, but chiefly to the passions. He described Mr. Wilkes and his actions in a lively manner; showed the variety of troubles which he had given the ministry; and that unless, by voting in Mr. Luttrell, an end were put to this debate, the whole kingdom would be in confusion; though he owned that he did not think that measure would put an end to the distractions. He spoke much more to the expediency than to the legality of the measure proposed." On the other side, it was contended by several members, Burke and Mr. Grenville being of the number, that "the House of Commons alone could not make a law binding any body but themselves. That, if they could disqualify one person, they could disqualify as many as they pleased, and thus get into their own hands the whole power of the government;" and precedents were produced to prove that votes of the House of Lords, and also of the House of Commons, regarding their own members, had been disregarded by the judges of the Court of King's Bench as being contrary to law. But the minister was secure of the steadiness of his adherents, and a majority of 221 to 152 declared that Mr. Luttrell had been duly elected. But Lord North was correct in his anticipation that their vote would not put an end to the agitation on the question, and it was renewed in the next session in a manner which at one time threatened to produce a breach between the two Houses. The "Parliamentary History" closes its report of the debate on the resolution by which Mr. Luttrell was seated with a summary of the arguments used in it, taken from the "Annual Register," which, as is universally known, was at this time edited by Mr. Burke. It is a very fair and candid abstract, which, in fact, puts the whole question on one single issue, "that the House of Commons is the sole court of judicature in all cases of election, and that this authority is derived from the first principles of our government, viz., the necessary independence of the three branches of the Legislature." But, though that doctrine was fully admitted by the Opposition, they made "that very admission a ground for reviving the question in the next session, by moving for a resolution which should declare that, 'being a Court of Judicature, the House of Commons, in deciding matters of election, was bound to judge according to the law of the land, and the known and established law of Parliament, which was part thereof.'" It was understood that this resolution, if carried, was intended as a stepping-stone to others which should condemn the decision of the previous session; yet it seemed such a truism that even the ministers could not venture to deny it; but they proposed to defeat the object of its framers by adding to it a declaration that the late decision was "agreeable to the said law of the land." And we might pass on to the subsequent debate, in which the constitutional correctness of that addition was distinctly challenged, did it not seem desirable to notice two arguments which were brought forward against the motion, one by an independent member, Mr. Ongley, the other by the Attorney-general. Mr. Ongley contended that "a power of preserving order and decency is essentially necessary to every aggregate body; and, with respect to this House, if it had not power over its particular members, they would be subject to no control at all." The answer to this argument is obvious: that a right on the part of the House to control the conduct of its members is a wholly different thing from a right to determine who are or ought to be members; and that for the House to claim this latter right, except on grounds of qualification or disqualification legally proved, would be to repeat one of the most monstrous of all Cromwell's acts of tyranny, when, in 1656, he placed guards at the door of the House, with orders to refuse admission to all those members whom, however lawfully elected, he did not expect to find sufficiently compliant for his purposes. Mr. De Grey's argument was of a different character, being based on what he foretold would be the practical result of a decision that expulsion did not involve an incapacity to be re-elected. If it did not involve such incapacity, and if, in consequence, Mr. Wilkes should be re-elected, he considered that the House would naturally feel it its duty to re-expel him as often as the constituency re-elected him. But one answer given to this argument was, that to expel a second time would be to punish twice for one offence, a proceeding at variance not only with English law but with every idea of justice. Another, and one which has obtained greater acceptance, was, that the legitimate doctrine was, that the issue of a new writ gave the expelled member an appeal from the House to the constituency, and that the constituency had a constitutional right to overrule the judgment of the House, and to determine whether it still regarded the candidate as its most suitable representative. The ministers, however, were, as before, strong enough in the House to carry their resolution. But the Opposition returned to the charge, taking up an entirely different though equally general position, "That, by the law of the land and the known law and usage of Parliament, no person eligible by common right can be incapacitated by vote or resolution of this House, but by act of Parliament only." It is remarkable that, in the debate which ensued, two members who successively rose to the dignity of Lord Chancellor, Mr. Thurlow and Mr. Wedderburn, took different sides; but nothing could shake the ministerial majority. The resolution was rejected. And when Lord Rockingham proposed the same resolution in the House of Lords, though it was supported by all the eloquence of Lord Chatham, he was beaten by a majority of more than two to one, and the ministers even carried a resolution declaring "that any interference of the House of Lords with any judgment of the House of Commons, in matters of election, would be a violation of the constitutional rights of the Commons." Even these decisive defeats of the Opposition did not finally terminate the struggle. The notoriety which Wilkes had gained had answered his purpose to no slight extent. The City had adopted his cause with continually increasing earnestness and effect. It had made him Sheriff, Alderman, Lord Mayor, and had enriched him with the lucrative office of City Chamberlain; and, as one of the City magistrates, he subsequently won the good opinion of many who had previously condemned him, by his conduct during the Gordon Riots, in which he exerted his authority with great intrepidity to check and punish the violence of the rioters. And when, in 1782, Lord Rockingham became, for the second time, Prime-minister, he thought he might well avail himself of the favor he had thus acquired, and of the accession to office of those whom the line which they had formerly taken bound to countenance him, to bring forward a motion for the expunction of the resolutions against him which had been passed in 1770. It was carried by a largo majority; and though this was as evidently a party division as those had been by which he had been defeated twelve years before, still, as the last resolution on the subject, it must be regarded as decisive of the law and practice of Parliament, and as having settled the doctrine that expulsion does not incapacitate a member who has been expelled from immediate re-election.[12] The establishment of this rule, and the abolition of general warrants, were, however, not the only nor the most important result of these proceedings. They led indirectly to an innovation which, it is hardly too much to say, has had a greater influence on the character and conduct of Parliament, and indeed on the whole subsequent legislation of the country, than can be attributed to any other single cause. Hitherto the bulk of the people had enjoyed but very scanty and occasional means of acquiring political education. At times of vehement political excitement, or any special party conflict, pamphlets and periodical essays had enlightened their readers--necessarily a select and small body--on particular topics. But standing orders of both Houses, often renewed, strictly forbade all publication of the debates which took place in either. To a certain extent, these orders had come to be disregarded and evaded. Almost ever since the accession of the House of Brunswick, a London publisher had given to the world an annual account of the Parliamentary proceedings and most interesting discussions of the year; and before the middle of the reign of George II, two monthly magazines had given sketches of speeches made by leading members of each party. The reporters, however, did not venture to give the names of the speakers at full length, but either disguised them under some general description, or at most gave their initials; and sometimes found that even this profession of deference to the standing orders did not insure them impunity. As late as the year 1747, Cave, the proprietor and editor of the _Gentleman's Magazine_, was brought to the bar of the House of Commons for publishing an account of a recent debate, and only obtained his release by expressions of humble submission and the payment of heavy fees. The awe, however, which his humiliation and peril had been intended to diffuse gradually wore off; the keen interest which was awakened by the ministerial changes at the beginning of the reign of George III., which have been already mentioned, naturally prompted a variety of efforts to gratify it by a revelation of the language concerning them which was held by statesmen of different parties; and these revelations were no longer confined to yearly or monthly publications. More than one newspaper had of late adopted the practice of publishing what it affirmed to be a correct report of the debates of the previous day, though, in fact, each journal garbled them to suit the views of the party to which it belonged, and, to quote the words of the historian of the period, "misrepresented the language and arguments of the speakers in a manner which could hardly be considered accidental."[13] The speakers on the ministerial side in the debates on the Middlesex election had been especial objects of these misrepresentations; and, at the beginning of 1771, one of that party, Colonel Onslow, M.P. for Guilford, brought the subject before the House, complaining that many speeches, and his own among them, had been misrepresented by two newspapers which he named, and that "the practice had got to an infamous height, so that it had become absolutely necessary either to punish the offenders or to revise the standing orders."[14] And he accordingly moved "that the publication of the newspapers of which he complained was a contempt of the orders and a breach of the privileges of the House, and that the printers be ordered to attend the House at its next sitting." The habitual unfairness of the reports was admitted by the Opposition; but the publishers complained of evidently felt assured of their sympathy (which, indeed, was sufficiently, and not very decorously, shown by its leaders inflicting on the House no fewer than twenty-three divisions in a single night), and, relying on their countenance, they paid no attention to the order of the House. A fresh order for their arrest having been issued, the Sergeant-at-arms reported that he had been unable to execute it, by reason of their absence from their homes; on which the House, not disposed to allow itself to be thus trifled with, now addressed his Majesty with a request that he would issue his royal proclamation for their apprehension. And Colonel Onslow made a fresh motion, with a similar complaint of the publishers of six more newspapers--"three brace," as he described them in language more sportsman like than parliamentary. Similar orders for their appearance and, when these were disregarded, for their apprehension, were issued. And at last one of those who had been mentioned in the royal proclamation, Mr. Wheble, printer of the _Middlesex Journal_, was apprehended by an officer named Carpenter, and carried before the sitting magistrate at Guildhall, who, by a somewhat whimsical coincidence, happened to be Alderman Wilkes. Wilkes not only discharged him, on the ground that there was "no legal cause of complaint against him," but when Wheble, in retaliation, made a formal complaint of the assault committed on him by Carpenter in arresting him, bound Wheble over to prosecute, and Carpenter to answer the complaint, at the next quarter sessions, and then reported what he had done in an official Letter to the Secretary of State. Thomson, another printer, was in like manner arrested; and, when brought before Mr. Oliver, another alderman, was discharged by him. And when, a day or two afterward, a third (Mr. Miller) was apprehended by Whetham, a messenger of the House of Commons, Mr. Brass Crosby, the Lord Mayor, and the two Aldermen, signed a warrant committing Whetham to prison for assaulting Miller. Whetham was bailed by the Sergeant-at-arms, who reported what had occurred to the House; and the House, as the Lord Mayor and Alderman Oliver were members of it, as representatives for London and Honiton, ordered that they should attend the House in their places, to explain their conduct, and that Mr. Wilkes should attend at the bar of the House. Wilkes, declining to recognize the validity of the resolutions which had seated Colonel Luttrell for Middlesex, refused compliance with such an order, writing a letter to the Speaker, in which he "observed that no notice was taken of him as a member of the House; and that the Speaker's order did not require him to attend in his place." And he "demanded his seat in Parliament, and promised, when he had been admitted to his seat, to give the House a most exact detail of his conduct." But the Lord Mayor pleaded the charters of the City as a justification of his act in releasing a citizen of London who had been arrested on a warrant which had not been backed by a City magistrate, and demanded to be heard by counsel in support of his plea. His demand, however, was refused, and he and Alderman Oliver were committed to the Tower; but, as if the ministers were afraid of re-opening the question of Colonel Luttrell's election for Middlesex, they evaded taking notice of Wilkes's disobedience to their order by a singularly undignified expedient, issuing a fresh order for his appearance on the 8th of April, and adjourning till the 9th. The ministers now moved the appointment of a select committee to investigate the whole affair; and the committee, before the end of the month, made an elaborate report, which, however, abstained from all mention of the offence committed by the printers, and confined itself to an assertion that "the power and authority of the House to compel the attendance of any commoner had ever extended as well to the City of London, without exception on account of charters from the crown or any pretence of separate jurisdiction, as to every other part of the realm." And this assertion may be regarded as having been uphold by the refusal of the judges to release the Lord Mayor and Alderman when they sued out writs of _habeas corpus_; and they consequently remained prisoners in the Tower till they were released by the prorogation. But with this report of the committee the matter was suffered to drop. The transaction had caused almost unprecedented excitement, which was not confined to the City, for the grand-juries of many English counties and a committee of the Dublin merchants showed their sympathy with the Opposition by sending up addresses to the imprisoned City magistrates; and the ministers had a prudent fear of keeping alive an agitation which had not been always free from danger to the public tranquillity.[15] In effect, the victory remained with the Opposition. No farther attempt was made to punish any of the printers; and, though the standing orders which forbid such publication have never been formally repealed, ever since that time the publishers of newspapers and other periodicals have been in the constant habit of giving regular details of the proceedings of both Houses of Parliament. And one enterprising publisher, Mr. Hansard, has for many years published a complete record of the debates in both Houses, which is continually appealed to in the Houses themselves, by members of both parties, as a manual of political and parliamentary history. The practice, as it now prevails, is one of the many instances of the practical wisdom with which this nation often deals with difficult subjects. The standing order is retained as an instrument which, in certain cases, it may possibly be expedient to employ; as, in fact, it has been employed in one or two instances in the present reign, when matters have been under consideration which, however necessary to be discussed, were of such a nature that the publication of the details into which some speakers deemed it desirable to go was regarded by others as calculated to be offensive to the taste, if not injurious to the morals, of the community at large. But the very fact of such an occasional enforcement of the standing orders under very peculiar circumstances implies a recognition of the propriety of its more ordinary violation; of the principle that publication ought to be the general rule, and secrecy the unusual exception. And, indeed, it is, probably, no exaggeration to say that such publication is not only valuable, as the best and chief means of the political education of the people out-of-doors, but is indispensable to the working of our parliamentary system such as it has now become. The successive Reform Bills, which have placed the electoral power in the hands of so vast a body of constituents as was never imagined in the last century, have evidently regarded the possession by the electors of a perfect knowledge of the language held and the votes given by their representatives as indispensable to the proper exercise of the franchises which they have conferred. And, even if there had previously been no means provided for their acquisition of such information, it is certain that the electors would never have consented to be long kept in the dark on subjects of such interest. In another point of view, the publication of the debates is equally desirable, in the interest of the members themselves, whether leaders or followers of the different parties. Not to mention the stimulus that it affords to the cultivation of eloquence--an incentive to which even those least inclined or accustomed to put themselves forward are not entirely insensible--it enables the ministers to vindicate their measures to the nation at large, the leaders of the Opposition to explain their objections or resistance to those measures in their own persons, and not through the hired agency of pamphleteers, and each humbler member to prove to his constituents the fidelity with which he has acted up to the principles his assertion of which induced them to confide their interests and those of the kingdom to his judgment and integrity. Secrecy and mystery may serve, or be supposed to serve, the interests of arbitrary rulers; perfect openness is the only principle on which a free constitution can be maintained and a free people governed. It seems convenient to take all the measures which, in this first portion of the reign before us, affected the proceedings or constitution of Parliament together; and, indeed, one enactment of great importance, which was passed in 1770, it is hardly unreasonable to connect in some degree with the decision of the House which adjudged the seat for Middlesex to Colonel Luttrell. Ever since the year 1704 it had been regarded as a settled point that the House of Commons had the exclusive right of determining every question concerning the election of its members. But it was equally notorious that it had exercised that right in a manner which violated every principle of justice and even of decency. Election petitions were decided by the entire House, and were almost invariably treated as party questions, in which impartiality was not even professed. Thirty years before, the Prime-minister himself (Sir Robert Walpole) had given notice to his supporters that "no quarter was to be given in election petitions;" and it was a division on one petition which eventually drove him from office. There was not even a pretence made of deciding according to evidence, for few of the members took the trouble to hear it. A few years after the time of which we are speaking, Lord George Germaine thus described the mode of proceeding which had previously prevailed: "The managers of petitions did not ask those on whose support they calculated to attend at the examination of witnesses, but only to let them know where they might be found when the question was going to be put, that they might be able to send them word in time for the division." The practice had become a public scandal, by which the constituencies and the House itself suffered equally--the constituencies, inasmuch as they were liable to be represented by one who was in fact only the representative of a minority; the House itself, since its title to public confidence could have no solid or just foundation but such as was derived from its members being in every instance the choice of the majority. Yet, so long as petitions were judged by the whole House, there seemed no chance of the abuse being removed, the number of judges conferring the immunity of shamelessness on each individual. To remedy such a state of things, in the spring of 1770 Mr. G. Grenville brought in a bill which provided for the future trial of all such petitions by a select committee of fifteen members, thirteen of whom should be chosen by ballot, one by the sitting member whose seat was petitioned against, and one by the petitioner. The members of the committee were to take an oath to do justice similar to that taken by jurymen in the courts of law; and the committee was to have power to compel the attendance of witnesses, to examine them on oath, and to enforce the production of all necessary papers; it was also to commence its sittings within twenty-four hours of its appointment, and to sit from day to day till it should be prepared to present its report. It was not to the credit of the ministers that they made the passing of such a bill a party question. The abuse which it was designed to remedy was notorious, and Mr. Grenville did not exaggerate its magnitude when he declared that, "if it were not checked, it must end in the ruin of public liberty." He was supported by Burke, and by two lawyers, Mr. Dunning and Mr. Wedderburn, both destined to rise to some of the highest offices in their profession; but he was opposed by the Attorney-general, by Lord North, as leader of the House, and by Mr. Fox--not yet turned into a patriot by Lord North's dismissal of him from office. The debates, both in the whole House and in committee, were long and earnest. Some of the ministerial underlings were not ashamed to deny the necessity of any alteration in the existing practice; but their more favorite argument was founded on the impropriety of the House "delegating its authority to a committee," which was asserted to be "an essential alteration of the constitution of the House of Commons." Lord North himself had too keen an instinct of propriety to deny the existence of a great evil, and contented himself with pleading for time for farther consideration; while the Attorney-general confined his objections to some details of the bill, which it would be easy to amend. Others, with too accurate a foresight, doubted the efficacy of the measure, and prophesied that the additional sanction of the oath, by which its framer hoped to bind the committees to a just and honest decision, would, "like oaths of office and Custom-house oaths, soon fall into matters of form, and lose all sanction, and so make bad worse." On the other hand, besides the arguments founded on the admitted greatness of the evil to be remedied, it was shown that the institution of committees, such as the bill proposed the appointment of, was sanctioned by numerous precedents; and though the committees--sometimes consisting of as many as two hundred members--were by far too large to make it probable that all would bestow a careful attention on the whole case, there was "nothing in the journals of the House to show that their decisions were not regarded as final, or as requiring no subsequent confirmation from the whole House." Generally speaking, Lord North could trust the steadiness of his majority; but, to his great surprise, on this occasion he found himself deserted by the country gentlemen, who voted in a body for the bill, although their spokesman, Sir W. Bagot, had been in no slight degree offended by some remarks of Burke, who, with a strange imprudence, had claimed a monopoly of the title of "friends of the constitution" for himself and his party, and had sneered at the country gentlemen, as "statesmen of a very different description, though, by a late description given of them, a Tory was now the best species of Whig." And the union of the two bodies proved irresistible; the bill was carried by a majority of sixty-two, and the government did not venture to carry on their resistance to it in the House of Lords, any interference by which would, indeed, have been resented by the Commons, as a violation of their privileges. At first the duration of the bill was limited to seven years; but in 1774 it was made perpetual by a still larger majority, the experience of its working having converted many who had at first opposed it, but who now bore willing testimony to its efficacy. Unhappily, though the House could make the bill perpetual, at least till formally repealed, it could not invest its good effects with equal durability. After a time, the same complaints were advanced against the decision of election committees that had formerly been employed to discredit the judgments of the whole House. The success or failure of a petition again became a party question; and as in a committee of an odd number the ministerialists or the Opposition must inevitably have a majority of at least one member, before the end of the reign it had become as easy to foretell the result of a petition from the composition of the committee as it had been in the time of Walpole. And it was with the approval of almost all parties--an approval extorted only by the absolute necessity of the case--that, after one or two modifications of Mr. Grenville's act had been tried, Mr. Disraeli induced the House to surrender altogether its privilege of judging of elections, and to submit the investigations of petitions on such subjects to the only tribunal sufficiently above suspicion to command and retain the confidence of the nation, the judges of the high courts of law. We shall probably be doing the House of Commons of the day no injustice, if we surmise that the degree in which public attention had recently been directed to the representation, and the interest which the people were beginning to show in the purity of elections, as the principle on the maintenance of which the very liberties of all might depend, had some share in leading the House to establish the wholly new, though most necessary, precedent of punishing a constituency for habitual and inveterate corruption. It may be called the first fruits of Mr. Grenville's act. At the end of the same year in which that statute had been passed, a select committee had sat to try the merits of a petition which complained of an undue return for the borough of New Shoreham. And its report brought to light an organized system of corruption, which there was too much reason to fear was but a specimen of that which prevailed in many other boroughs as yet undetected. It appeared from the report, founded as it was on the evidence and confession of many of the persons inculpated, that a society had long existed in New Shoreham, entitled the Christian Club, which, under this specious name, was instituted, as they frankly acknowledged, for the express purpose of getting as much money as possible at every election from the candidates they brought in. The members of the club were under an oath and bond of £500 not to divulge the secrets of the club, and to be bound by the majority. On every election, a committee of five persons was nominated by the club to treat with the candidates for as much money as they could get. And, in pursuance of this system, when, on the death of Sir Stephen Cornish, one of the members for the borough, five candidates offered themselves to supply the vacancy, this committee of five opened negotiations with them all. The offers of the rival purchasers were liberal enough. One (General Smith) proposed to buy the entire club in the lump for £3000, adding a promise to build 600 tons of shipping in the town. A second (a Mr. Rumbold) was willing to give every freeman £35; and his offer was accepted by the committee, who, however, cautioned him that no freeman was entitled to the money who was not a member of the Christian Club. He willingly agreed to this limitation of his expenditure, and both he and the club regarded the matter as settled. He paid every freeman who belonged to the club his stipulated bribe, and on the polling day they tendered eighty-seven votes in his favor, the entire constituency being something under one hundred and fifty. The general, finding his £3000 declined, did not go to the poll; but a Mr. Purling and Mr. James did, the latter polling only four votes, the former only thirty-seven. What bribe Mr. Purling had given was never revealed; but by some means or other he had contrived to render himself the most acceptable of all the candidates to Mr. Roberts, the returning officer. Roberts had himself been a member of the Christian Club, but had quarrelled with it, and on the day of the election, as Rumbold's voters came up, he administered to each of them the oath against bribery. They took it without scruple; but he took it on himself to pronounce seventy-six of them disqualified, and to refuse their votes; and, having thus reduced Mr. Rumbold's voters to eleven, he returned Mr. Purling as duly elected. Mr. Rumbold, not unnaturally, petitioned against such a return; when Mr. Roberts admitted the facts alleged against him, but pleaded that he had acted under the advice of counsel, who had assured him that it was within his own discretion to admit or to refuse any votes that might be tendered, and that he might lawfully refuse any "which in his own mind he thought illegal." It is a striking proof of the laxity which prevailed on every quarter in electioneering practices, that the House, to a great extent, admitted his justification or excuse as valid. By a strange stretch of lenity, they gave him credit for an honest intention, and contented themselves with ordering him to be reprimanded by the Speaker. But the case of the bribed freemen and of the borough generally was too gross to be screened by any party. All agreed that the borough must be regarded as incurably corrupt, and deserving of heavy punishment. The Attorney-general was ordered to prosecute the five members of the managing committee for "an illegal and corrupt conspiracy;" and a bill was brought in to disfranchise and declare forever incapable of voting at any election eighty-one freemen who had been proved to have received bribes, and to punish the borough itself, by extending the right of voting at future elections to all the freeholders in the rape of Bramber, the district of Sussex in which New Shoreham lies, an arrangement which reduced the borough itself to comparative insignificance. Mr. Fox opposed the bill, on the ground that the offence committed could be sufficiently punished by the ordinary courts of law. But he stood alone in his resistance; the bill was passed, and a salutary precedent was established; the penalty inflicted on New Shoreham being for many years regarded as the most proper punishment for all boroughs in which similar practices were proved to prevail. And it might have continued to be thought so, had corruption been confined to the smaller boroughs; but there was no doubt that in many large towns corruption was equally prevalent and inveterate, while there were also many counties in which the cost of a contest was by far too large to be accounted for by any legitimate causes of expenditure. And consequently, as time wore on, severer measures were considered necessary. Some boroughs were deprived of the right of election altogether; in others, whose population or constituency was too numerous to make their permanent disfranchisement advisable, the writ was suspended for a time, that its suspension might serve both as a punishment and as a warning, a practice which is still not unfrequently adopted. But no plan could be devised for dealing with the evil in counties, till what seemed hopeless to achieve by direct legislation was, in a great degree, effected by the indirect operation of the Reform Bill of 1832. The shortening of the duration of an election, which was henceforth concluded in a single day, and the multiplication of polling places, which rendered it impossible to ascertain the progress of the different candidates till the close of the poll, were provisions having an inevitable and most salutary effect in diminishing alike the temptation to bribe on the part of the candidate, and the opportunity of enhancing the value of his vote by the elector. The vast increase of newspapers, by diffusing political education and stimulating political discussion, has had, perhaps, a still greater influence in the same direction. And, as bribery could only be brought to bear on electors too ignorant to estimate the importance of the exercise of the franchise by any higher test than the personal advantage it might bring to themselves, it is to the general diffusion of education among the poorer classes, and their gradually improved and improving intelligence that a complete eradication of electoral corruption can alone be looked for. Notes: [Footnote 1: "Constitutional History," vol. iii., p. 380; ed. 3, 1832. The first edition was published in 1827.] [Footnote 2: Grampound. Corrupt voters had been disfranchised in New Shoreham as early as 1771, and the franchise of the borough of Cricklade had been transferred to the adjoining hundreds in 1782.] [Footnote 3: Parliament was dissolved March 19. Lord Bute succeeded Lord Holdernesse March 25.] [Footnote 4: The greater part of Lord Bute's colleagues did, in fact, retain their offices. Lord Egremont and Lord Halifax continued to be Secretaries of State; Lord Henley (afterward Lord Northington) retained the Great Seal; Lord North and Sir John Turner remained as Lords of the Treasury; and Mr. Yorke and Sir Fletcher Norton were still Attorney and Solicitor General.] [Footnote 5: Parliament was prorogued April 19, and _The North Briton_ (No. 45) was published April 23.] [Footnote 6: A letter of the Prince Consort examines the principle of ministerial responsibility with so remarkable a clearness of perception and distinctness of explanation, that we may be excused for quoting it at length: "The notion that the responsibility of his advisers impairs the monarch's dignity and importance is a complete mistake. Here we have no law of ministerial responsibility, for the simple reason that we have no written constitution; but this responsibility flows as a logical necessity from the dignity of the crown and of the sovereign. 'The King can do no wrong,' says the legal axiom, and hence it follows that somebody must be responsible for his measures, if these be contrary to law or injurious to the country's welfare. Ministers here are not responsible _quâ_ ministers, that is, _quâ_ officials (as such they are responsible to the crown), but they are responsible to Parliament and the people, or the country, as 'advisers of the crown.' Any one of them may advise the crown, and whoever does so is responsible to the country for the advice he has given. The so-called accountability of ministers to Parliament does not arise out of an abstract principle of responsibility, but out of the practical necessity which they are under of obtaining the consent of Parliament to legislation and the voting of taxes, and, as an essential to this end, of securing its confidence. In practice, ministers are liable to account for the way and manner in which they have administered the laws which they, conjointly with the Parliament, have made, and for the way they have expended the moneys that have been voted for definite objects. They are bound to furnish explanations, to justify their proceedings, to satisfy reasonable scruples, and the answer, 'We have, as dutiful subjects, obeyed the sovereign,' will not be accepted. 'Have you acted upon conviction, or have you not?' is the question. 'If you have not, then you are civil servants of the crown, who counsel and do what you consider wrong or unjust, with a view to retain your snug places or to win the favor of the sovereign.' And this being so, Parliament withdraws its confidence from them. Herein, too, lies that ministerial power of which sovereigns are so much afraid. They can say, 'We will not do this or that which the sovereign wishes, because we cannot be responsible for it.' But why should a sovereign see anything here to be afraid of? To him it is, in truth, the best of safeguards. A really loyal servant should do nothing for which he is not prepared to answer, even though his master desires it. This practical responsibility is of the utmost advantage to the sovereign. Make independence, not subservience, the essential of service, and you compel the minister to keep his soul free toward the sovereign, you ennoble his advice, you make him staunch and patriotic, while time-servers, the submissive instruments of a monarch's extreme wishes and commands, may lead, and often have led, him to destruction. "But to revert to the law of responsibility. This ought not to be in effect a safeguard for law itself. As such, it is superfluous in this country, where law reigns, and where it would never occur to any one that this could be otherwise. But upon the Continent it is of the highest importance; as, where the government is an outgrowth of a relation of supremacy and subordination between sovereign and subject, and the servant, trained in ideas natural to this relation, does not know which to obey, the law of the sovereign, the existence of such a law would deprive him of the excuse which, should he offend the law, and so be guilty of a crime, is ready to his hand in the phrase, 'The sovereign ordered it so, I have merely obeyed,' while it would be a protection to the sovereign that his servants, if guilty of a crime, should not be able to saddle him with the blame of it."--_Life of the Prince Consort_, v., 262.] [Footnote 7: "Lives of the Lord Chancellors," c. cxliii.] [Footnote 8: Indeed, the opinion which Lord Campbell thus expresses is manifestly at variance with that which he had previously pronounced in his life of Lord Northington, where he praised the House of Lords for "very properly rejecting the bill passed by the Commons declaring general warrants to be illegal, leaving this question to be decided (as it was, satisfactorily) by the Courts of Common Law."] [Footnote 9: From a speech of Mr. Grenville delivered at a later period (February 3, 1769, "Parliamentary History," xvi., 548), it appears that the Secretaries of State who signed this general warrant did so against their own judgment. "They repeatedly proposed to have Wilkes's name inserted in the warrant of apprehension, but were overruled by the lawyers and clerks of the office, who insisted that they could not depart from the long-established precedents and course of proceeding." And in one of these debates, Mr. Pitt, while denouncing with great severity Grenville's conduct in procuring the issue of this particular warrant, was driven to a strange confession of his own inconsistency, since he was forced to admit that, while Secretary of State, he had issued more than one general warrant in exactly similar form.] [Footnote 10: Strange to say, it does not seem absolutely certain that Wilkes was the author of the "Essay on Woman." Horace Walpole eventually learned, or believed that he had learned, that the author was a Mr. Thomas Potter. (See Walpole's "George III.," i., 310; and Cunningham's "Note on his Correspondence," iv., 126.)] [Footnote 11: These are the words of the resolution.--_Parliamentary History_, xvi., 537. But it does not appear what the three libels were. The "Essay on Woman" was one, the paraphrase of "Veni Creator" was a second; no third of that character is mentioned.] [Footnote 12: The last resolution is approved by Mr. Hallam. "If a few precedents were to determine all controversies of constitutional law, it is plain enough from the journals that the House has assumed the power of incapacitation. But as such authority is highly dangerous and unnecessary for any good purpose, and as, according to all legal rules, so extraordinary a power could not be supported except by a sort of prescription that cannot be shown, the final resolution of the House of Commons, which condemned the votes passed in times of great excitement, appears far more consonant to first principles."--_Constitutional History_, iii., 357.] [Footnote 13: Adolphus, "History of England," i., 484.] [Footnote 14: An idea of the license which the newspapers complained of had permitted themselves at this time may be derived from the manner in which one of them had introduced a speech of Mr. Jeremiah Dyson, M.P. for Weymouth, and a Commissioner of the Treasury: "Jeremiah Weymouth, the d----n of the kingdom, spoke as follows." And it may seem that the Opposition (for the affair was made a party question) can hardly be acquitted of a discreditable indifference to the dignity of the House in supporting a resolution of Colonel Barré, that "Jeremiah Weymouth, the d----n of this kingdom, is not a member of this House." On which the previous question was moved by the ministers, and carried by 120 to 38.--_Parliamentary History_, xvii., 78. And an instance of rather the opposite kind, of the guarded way in which the most respectable publications were as yet accustomed to relate the transactions of Parliament, may be gathered from the account of the proceedings in the case of Wilkes, given in the "Annual Register" for 1770--drawn up, probably, by Burke himself--in which Lord Camden is only mentioned as "a great law lord;" Lord Chatham as "Lord C----m;" Lord Rockingham as "a noble Marquis who lately presided at the head of public affairs;" the King as "the K----;" Parliament as "P.;" and the House of Commons as the "H. of C."--_Annual Register_, 1770, pp. 59-67.] [Footnote 15: On more than one occasion there had been disturbances in the City, and in the streets adjacent to the Houses of Parliament, which were little short of riot. One day the mob paraded effigies of the principal ministers, which, after hanging and beheading them, they committed to the flames with great uproar. On another day Mr. Charles Fox (as yet a vehement Tory) complained to the House that the mob in Palace Yard had insulted him, breaking the glasses of his chariot, and pelting him with oranges, stones, etc.--_Parliamentary History_, xvii., 163.] CHAPTER II. The Regency Bill.--The Ministry of 1766 lay an Embargo on Corn.--An Act of Indemnity is Passed.--The _Nullum Tempus_ Act concerning Crown Property; it is sought to Extend it to Church Property, but the Attempt fails.--The Royal Marriage Act.--The Lords amend a Bill imposing Export Duties, etc., on Corn. The prosecution of Wilkes was not the only act of Mr. Grenville's administration which excited both the Parliament and the people. In 1764 the King was attacked by a serious illness, and, as the Prince of Wales was an infant scarcely two years old, it was manifestly necessary to make arrangements for a Regency, in the event of the throne becoming vacant while the heir was still a minor. A similar necessity had arisen in the preceding reign on the death of the present King's father, and a bill had accordingly been introduced by Mr. Pelham, the minister of the day, which, in the event of the reigning sovereign dying during the minority of the boy who had now become the immediate heir to the throne, vested both the guardianship of his person and the Regency of the kingdom in his mother, the Princess Dowager of Wales, who, however, in the latter capacity, was only to act with the advice of a council, composed of her brother-in-law, the Duke of Cumberland, and nine principal officers of state. It was not concealed by either the King or the Duke that they would have preferred a different arrangement, one which would have conferred an uncontrolled Regency on the Duke himself; but the bill was passed by great majorities in both Houses, and served in some respects as a model for that which was now to be brought forward, the difference being that the Regent was not to be expressly named in it. To quote the words of the royal speech, the King "proposed to the consideration of the two Houses whether, under the present circumstances, it would not be expedient to vest in him the power of appointing from time to time, by instrument in writing under his sign-manual, either the Queen or any other member of the royal family usually residing in Great Britain, to be the guardian of the person of his successor, and the Regent of these kingdoms, until such successor should attain the age of eighteen years, subject to such restrictions and regulations as were specified and contained in an act passed on a similar occasion in the fourteenth year of the late King; the Regent so appointed to be assisted by a council, composed of the several persons who, by reason of their dignities and offices, were constituted members of the council established by that act, together with those whom the Parliament might think proper to leave to his nomination." It may be doubted whether such a power as his Majesty desired was quite consistent with the principles of the constitution. Parliament had, indeed, granted Henry VIII. the still greater power of nominating a series of successors; but the appointment which he consequently made by will was eventually superseded, when, on the failure of his immediate descendants, the representative of his elder sister, whom he had passed over, was seated on the throne, to the exclusion of the descendants of his younger sister, to whom he had given the preference. In France, the last two kings, Louis XIII. and XIV., had both, when on their death-beds, assumed the right of making the arrangements for the Regency which would become necessary, the heir to the throne being in each case a minor; but in each instance the arrangements which they had made were disregarded. However, on the present occasion the minister (who must be taken to have framed the King's speech) and the Parliament agreed in the propriety of conferring the nomination of the Regent on the King himself;[16] and the bill might have passed almost without notice, had it not been for a strange display of the Prime-minister's ill-temper and mismanagement. Mr. Grenville was at all times uncourtly and dictatorial in his manner, even to the King himself; he was also of a suspicious disposition; and though he was universally believed to have owed his promotion to his present office to the recommendation of Lord Bute,[17] he was extremely jealous of his predecessor. He professed to believe, and probably did believe, that the King was still greatly under Lord Bute's influence (though, in fact, they had never met since that minister had quitted the Treasury), that Lord Bute was still as closely connected with the Princess of Wales as scandal had formerly reported him to be, and that George III., under the pressure of their combined influence, would be induced to name his mother rather than his wife as the future Regent. And he was so entirely swayed by this ridiculous and wholly groundless fear, that, when the bill to give effect to the royal recommendation was introduced into the House of Lords, he instigated one of his friends to raise the question who were included in the general term "the royal family," which Lord Halifax, as Secretary of State, answered by saying that he regarded it as meaning "those only who were in order of succession to the throne." Such a definition would have excluded the Queen as effectually as the Princess Dowager; and when Mr. Grenville found the peers reluctant to accept this view (which, indeed, his own Lord Chancellor pronounced untenable), he then sent another of his colleagues to represent to the King that his mother was so unpopular that, even if the Lords should pass the bill in such a form as rendered her eligible for nomination, the Commons would introduce a clause to exclude her by name. With great unwillingness, and, it is said, not without tears, George III. consented to the bill being so drawn as to exclude her, and it passed the Lords in such a form. But when it reached the Commons it was found that if the leaders of the Opposition hated Bute much, they hated Grenville more. They moved the insertion of the name of the Princess Dowager as one of the members of the royal family whom the King might nominate Regent, if it should please him. Even Grenville had not the boldness publicly to disparage his royal master's royal mother; the Princess's name was inserted by a unanimous vote in the list of those from whom the King was empowered to select the Regent, and the amendment was gladly accepted by the House of Lords.[18] In spite, however, of the unanimity of the two Houses on the question, it will probably be thought that the authors of the amendment, by which it was proposed to address the King with an entreaty to name in the bill the person to whom he desired to intrust the Regency, acted more in the spirit of the constitution than those who were contented that the name should be omitted; indeed, that statesmen of the present century agree in holding that an arrangement of such importance should be made by the Houses of Parliament, in concurrence with the sovereign, and not by the sovereign alone, is shown by the steps taken to provide for a Regency in the event of the demise of the reigning sovereign while the heir was a minor, in the last and in the present reign, the second bill (that of 1840) being in this respect of the greater authority, since Lord Melbourne, the Prime-minister, did not propose it without previously securing the approval of the Duke of Wellington, in his character of leader of the Opposition. We pass over for a moment the administration of Lord Rockingham, as we have already passed over the taxation of our North American Colonies by Mr. Grenville, because it will be more convenient to take all the transactions relating to that subject together when we arrive at the time when the troubles arising out of the policy of the different administrations toward those Colonies were brought to a head by the breaking out of civil war. Lord Rockingham's ministry, which succeeded Mr. Grenville's, had, as is well known, but a brief existence, and was replaced by the cabinet so whimsically composed by Mr. Pitt, who reserved to himself the office of Privy Seal, with the Earldom of Chatham; the Duke of Grafton being the nominal head of the Treasury, but the direction of affairs being wholly in the hands of the new Earl, till the failure of his health compelled his temporary retirement from public life. Lord Chatham was brother-in-law to Mr. Grenville, to whom in the occasional arrogance and arbitrariness of his disposition he bore some resemblance; and one of the earliest acts of his administration, when coupled with the language which he held on the subject in the House of Lords, displayed that side of his character in a very conspicuous light. The summer of 1766 had been unusually wet and cold, both at home and abroad, and the harvest had, in consequence, been so deficient as to cause a very general apprehension of scarcity, while rumors were spread that the high prices which the shortness of the crops could not fail to produce were artificially raised by the selfish covetousness of some of the principal corn-dealers, who were buying up all the grain which came into the market, and storing it, with the object of making an exorbitant profit out of the necessities of the consumer, not only at home but abroad. The poorer classes, seeing themselves, as they believed, threatened with famine, rose in riotous crowds, in some places attacking the barns in which the corn was stored, and threatening destruction to both the storehouses and the owners. The ministry first tried to repress the discontent by the issue of a proclamation against "forestallers and regraters," framed in the language and spirit of the Middle Ages; and, when that proved ineffectual to restore confidence, they issued an Order in Council absolutely prohibiting the exportation of any kind of grain, and authorizing the detention of any vessels lying in any British harbor which might be loaded with such a cargo. Our annals furnished no instance of such an embargo having been laid on any article of commerce in time of peace; but the crisis was difficult, the danger to the tranquillity of the kingdom was great and undeniable, the necessity for instant action seemed urgent, and probably few would have been inclined to cavil at Lord Chatham's assertion, that the embargo "was an act of power which, during the recess of Parliament, was justifiable on the ground of necessity," had the ministry at once called Parliament together to sanction the measure by an act of indemnity. But Lord Chatham was at all times inclined to carry matters with a high hand, and willingly adopted the opinion advanced by the Chancellor (Lord Northington), that "the measure was strictly legal, and that no indemnity was necessary." Lord Northington's language on the subject Lord Campbell describes as "exhibiting his characteristic rashness and recklessness, which seemed to be aggravated by age and experience,"[19] and the censure does not seem too severe, since he presently "went so far as to maintain that the crown had a right to interfere, even against a positive act of parliament, and that proof of the necessity amounted to a legal justification." But, however ill-considered his language may have been, Lord Chatham adopted it, and acted on it so far as to decline calling the Parliament together before the appointed time, though, when the Houses did meet, he allowed General Conway, as Secretary of State, to introduce a bill of indemnity in the House of Commons. It was warmly opposed in that House, partly on the ground that, if such a measure as the embargo had been necessary, it would have been easy to have assembled Parliament before the Order in Council was issued (for, in fact, the proclamation against forestallers and regraters had been issued on the 10th of September, when Parliament, if not farther prorogued, would have met within a week). But on that same day Parliament was farther prorogued from the 16th of September till the 11th of November,[20] and it was not till after that prorogation, on the 24th of September, that the Order in Council was issued. In the House of Lords it seems to have been admitted that the embargo was, under all the circumstances, not only desirable, but "indispensably necessary."[21] But the Opposition in that House, being led by a great lawyer (Chief-justice Lord Mansfield), took a wider view of the whole case; and, after denouncing the long prorogation of Parliament as having been so culpably advised that there was no way left of meeting the emergency but by an interposition of the royal power, directed the principal weight of their argument against the doctrine of the existence of any dispensing power. It was urged that the late Order in Council could only be justified by "the general proposition that of any, and, if of any, of every, act of parliament the King, with the advice of the Privy Council, may suspend the execution and effect whenever his Majesty, so advised, judges it necessary for the immediate safety of the people." And this proposition was denounced as utterly inconsistent with the principles of the Revolution, which had been "nothing but a most lawless and wicked invasion of the rights of the crown," if such a dispensing power were really one of the lawful prerogatives of the sovereign. Reference was made to the powers in more than one instance, and especially in the case of ship-money claimed and exercised by Charles I.; and it was affirmed that "the dispensing and suspending power, and that of raising money without the consent of Parliament, were precisely alike, and stood on the very same ground. They were born twins; they lived together, and together were buried in the same grave at the Revolution, past all power of resurrection." It was even argued that the dispensing or suspending power was yet more dangerous than that of raising money without a Parliamentary vote, since it was a power which might do the most mischief, and with the greatest speed, so many were the subjects which it included. It would be a return to the maxims of the idolators of prerogative as understood in those earlier days, that is, of absolute and arbitrary power, _a Deo Rex, a Rege Lex_. It was farther argued that, unless it could be said that the moment Parliament breaks up the King stands in its place, and that the continuance of acts is consigned into his hands, he cannot of right suspend any more than he can make laws, both acts requiring the same power. The law is above the King, and the crown as well as the subject is bound by it as much during the recess as in the session of Parliament; and therefore the wisdom of the constitution has excluded every discretion in the crown over a positive statute, and has emancipated Parliament from the royal prerogative, leaving the power of suspension, which is but another name for a temporary repeal, to reside where the legislative power is lodged--that is, in King, Lords, and Commons, who together constitute the only supreme authority of this government. Precedents were cited to prove that in former times different ministries had avoided thus taking the law into their own hands, as when, in 1709 and again in 1756, there was a similar apprehension of scarcity, even though both those years were years of war. And the Bill of Rights was quoted as the statute in which every sort of dispensing power was condemned, though, as exercised by James II., it had only been exerted in dispensing with penal laws and remitting penalties. "Finally," said one speaker, who perhaps was Lord Mansfield himself, "he is not a moderate minister who would rashly decide in favor of prerogative in a question where the rights of Parliament are involved, nor a prudent minister who, even in a doubtful case, commits the prerogative, by a wanton experiment, to what degree the people will bear the extent of it. The opposite course was that by which a minister would consult the best interests of the crown, as well as of the people. The safety of the crown, as well as the security of the subject, requires the closing up of every avenue that can lead to tyranny."[22] These arguments prevailed, and the indemnity bill was passed, to quote the words of the "Annual Register"--at that time written by Burke--"very much to the satisfaction of the public." And that it should have been so accepted is creditable to the good-sense of both parties. The precedent which was thus established does, indeed, seem to rest on a principle indispensable to the proper working of a constitutional government. In so extensive an empire as ours, it is scarcely possible that sudden emergencies, requiring the instant application of some remedy, should not at times arise; and, unless Parliament be sitting at the time, such can only be adequately dealt with if the ministers of the crown have the courage to take such steps as are necessary, whether by the suspension of a law or by any other expedient, on their own responsibility, trusting in their ability to satisfy the Parliament, instantly convoked to receive their explanation, of the necessity or wisdom of their proceedings; and in the candor of the Parliament to recognize, if not the judiciousness of their action, at all events the good faith in which it has been taken, and the honest, patriotic intention which has dictated it. The establishment of the obligation instantly to submit the question to the judgment of Parliament will hardly be denied to be a sufficient safeguard against the ministerial abuse of such a power; and the instances in which such a power has since been exercised, coupled with the sanction of such exercise by Parliament, are a practical approval and ratification by subsequent Parliaments of the course that was now adopted.[23] The next year a not very creditable job of the ministry led to the enactment of a statute of great importance to all holders of property which had ever belonged to the crown. In the twenty-first year of James I. a bill had been passed giving a secure tenure of their estates to all grantees of crown lands whose possession of them had lasted sixty years. The Houses had desired to make the enactment extend to all future as well as to all previous grants. But to this James had refused to consent; and, telling the Houses that "beggars must not be choosers," he had compelled them to content themselves with a retrospective statute. Since his time, and especially in the reigns of Charles II. and William III., the crown had been more lavish and unscrupulous than at any former period in granting away its lands and estates to favorites. And no one had been so largely enriched by its prodigality as the most grasping of William's Dutch followers, Bentinck, the founder of the English house of Portland. Among the estates which he had obtained from his royal master's favor was one which went by the name of the Honor of Penrith. Subsequent administrations had augmented the dignities and importance of his family. Their Earldom had been exchanged for a Dukedom; but the existing Duke was an opponent of the present ministry, who, to punish him, suggested to Sir James Lowther, a baronet of ancient family, and of large property in the North of England, the idea of applying to the crown for a grant of the forest of Inglewood, and of the manor of Carlisle, which hitherto had been held by Portland as belonging to the Honor of Penrith, but which, not having been expressly mentioned in the original grant by William III., it was now said had been regarded as included in the honor only by mistake. It was not denied that Portland had enjoyed the ownership of these lands for upward of seventy years without dispute; and, had the statute of James been one of continual operation, it would have been impossible to deprive him of them. But, as matters stood, the Lords of the Treasury willingly listened to the application of Sir James Lowther; they even refused permission to the Duke to examine the original deed and the other documents in the office of the surveyor, on which he professed to rely for the establishment of his right; and they granted to Sir James the lands he prayed for at a rent which could only be regarded as nominal. The injustice of the proceeding was so flagrant, that in the beginning of 1768 Sir George Savile brought in a bill to prevent any repetition of such an act by making the statute of James I. perpetual, so that for the future a possession for sixty years should confer an indisputable and indefeasible title. The ministers opposed it with great vehemence, even taking some credit to themselves for their moderation in not requiring from the Duke a repayment of the proceeds of the lands in question for the seventy years during which he had held them. But the case was so bad that they could only defeat Sir George Savile by a side-wind and a scanty majority, carrying an amendment to defer any decision of the matter till the next session. Sir George, however, was not discouraged; he renewed his motion in 1769, when it was carried by a large majority, with an additional clause extending its operation to the Colonies in North America; and thus, in respect of its territorial rights, the crown was placed on the same footing as any private individual, and the same length of tenure which enabled a possessor to hold a property against another subject henceforth equally enabled him to hold it against the crown. The policy not less than the justice of such an enactment might have been thought to commend it to every thinking man as soon as the heat engendered by a party debate had passed away. It had merely placed the sovereign and the subject on the same footing in respect of the security which prescription gave to possession. And it might, therefore, have been thought that the vote of 1769 had settled the point in every case; since what was the law between one private individual and another, and between the sovereign and a subject, might well have been taken to be of universal application. But the ministry were strangely unwilling to recognize such a universal character in the late act, and found in the peculiar character of ecclesiastical bodies and ecclesiastical property a pretext for weakening the force of the late enactment, by denying the applicability of the principle to the claims of ecclesiastical chapters. In 1772 Mr. Henry Seymour, one of the members for Huntingdon, moved for leave to bring in a bill, which he described as one "for quieting the subjects of the realm against the dormant claims of the Church;" or, in other words, for putting the Church on the same footing with respect to property which had passed out of its possession as the crown had been placed in by the act of 1769. He contended that such a bill ought to be passed, not only on the general principle that possessors who derived their property from one source ought not to be less secure than they who derived it from another, but also on the grounds that, as ecclesiastical bodies occasionally used their power, "length of possession, which fortified and strengthened legal right and just title in every other case, did in this alone render them more weak and uncertain," from the difficulty which often occurred in finding documentary proof of very ancient titles; and that this was not an imaginary danger, since a member of the House then present had recently lost £120,000 by a bishop reviving a claim to an estate after the gentleman's family had been in undisturbed possession of it above a hundred years. The defence of the Church, however, was taken up by Mr. Skinner, Attorney-general for the Duchy of Lancaster, who argued that though, in the case of the crown, the _nullum tempus_ which it had formerly claimed, and which had been put an end to in 1769, was "an engine in the hands of the strong to oppress the weak, the _nullum tempus_ of the Church was a defence to the weak against the strong," as its best if not its sole security "against the encroachment of the laity." The "Parliamentary History" records that in the course of a long debate Lord North opposed the bringing in of the bill, as did "the Lord-advocate of Scotland, who gave as a reason in favor of the bill, though he voted against it, that a law of similar nature had passed in Scotland, and that the whole kingdom, clergy as well as laity, found the very best effects from it."[24] Burke argued in favor of the bill with great force, declaring that in so doing "he did not mean anything against the Church, her dignities, her honor, her privileges, or her possessions; he should wish even to enlarge them all; but this bill was to take nothing from her but the power of making herself odious." But the ministerial majority was too well disciplined to be broken, and Mr. Seymour could not even obtain leave to bring in the bill. The year 1772 was marked by the discussion of a measure which the King seems to have regarded as one of private interest only, affecting his personal rights over his own family. But it is impossible to regard transactions which may affect the right of succession to the throne as matters of only private interest. And indeed the bill was treated as one involving a constitutional question by both sides of both Houses, and as such was discussed with remarkable earnestness, and with vehemence equalling that of any other debate which had as yet taken place since the commencement of the reign. The bill had its origin in the personal feelings of the King himself, who had been greatly annoyed at the conduct of his brother, the Duke of Cumberland, in marrying a widow of the name of Horton, daughter of Lord Irnham, and sister of the Colonel Luttrell whom the vote of the House of Commons had seated as member for Middlesex; and perhaps still more at the discovery that his other brother, the Duke of Gloucester, to whom he was greatly attached, had married another subject, the widowed Lady Waldegrave. His Majesty's dissatisfaction was, perhaps, heightened by the recollection that he himself, in early manhood, had also been strongly attracted by the charms of another subject, and had sacrificed his own inclinations to the combined considerations of pride of birth and the interests of his kingdom. And, though there was a manifest difference between the importance of the marriage of the sovereign himself and that of princes who were never likely to become sovereigns, he thought it not unreasonable that he should be empowered to exercise such a general guardianship over the entire family, of which he was the head, as might enable him to control its members in such arrangements, by making his formal sanction indispensable to the validity of any matrimonial alliances which they might desire to contract. A somewhat similar question had been raised in 1717, when George I., having quarrelled with the Prince of Wales (afterward George II.), asserted a claim to control and direct the education of all the Prince's children, and, when they should be of marriageable age, to arrange their marriages. The Prince, on the other hand, insisted on his natural and inalienable right, as their father, to have the entire government of his own offspring, a right which, as he contended, no royal prerogative could be enabled or permitted to override. That question was not, however, brought before Parliament, to which, at that time, the King could, probably, not have trusted for any leanings in his favor; but he referred it, in an informal way, to the Lord Chancellor (Lord Cowper) and the Common-law Judges. They investigated it with great minuteness. A number of precedents were adduced for the marriage and education of the members of the royal family being regulated by the sovereign, beginning with Henry III., who gave his daughter Joan, without her own consent, in marriage to the King of Scotland, and coming down to the preceding century, at the commencement of which the Council of James I. committed the Lady Arabella Stuart and Mr. Seymour to the Tower for contracting a secret marriage without the King's permission, and at the end of which King William exercised the right of selecting a tutor for the Duke of Gloucester, the son of the Princess Anne, without any consultation with the Princess herself; and finally the judges, with only two dissenting voices, expressed their conviction that the King was entitled to the prerogative which he claimed. The case does not, however, seem to have been regularly argued before them; there is no trace of their having been assisted in their deliberations by counsel on either side, and their extra-judicial opinion was clearly destitute of any formal authority;[25] so that it came before Parliament in some degree as a new question. But George III. was not of a disposition to allow such matters to remain in doubt, and, in compliance with his desire, a bill was, in 1772, introduced by Lord Rochfort, as Secretary of State, which proposed to enact that no descendants of the late King, being children or grandchildren, and presumptive heirs of the sovereign, male or female, other than the issue of princesses who might be married into foreign families, should be capable of contracting a valid marriage without the previous consent of the reigning sovereign, signified under his sign-manual, and that any marriage contracted without such consent should be null and void. The King or the ministers apparently doubted whether Parliament could be prevailed on to make such a prohibition life-long, and therefore a clause was added which provided that if any prince or princess above the age of twenty-five years should determine to contract a marriage without such consent of the sovereign, he or she might do so on giving twelve months' notice to the Privy Council; and such marriage should be good and valid, unless, before the expiration of the twelve months, both Houses of Parliament should declare their disapproval of the marriage. The concluding clause of the bill made it felony "to presume to solemnize, or to assist, or to be present, at the celebration of any such marriage without such consent being first obtained." The bill was stoutly resisted in both Houses at every stage, both on the ground of usage and of general principle. It was positively denied that the "sovereign's right of approving of all marriages in the royal family," which was asserted in the preamble of the bill, was either founded in law, or established by precedent, or warranted by the opinion of the judges. And it was contended that there never had been a time when the possession of royal rank had been considered necessary to qualify any one to become consort of an English prince or princess. It had not even been regarded as a necessary qualification for a queen. Three of the wives of Henry VIII. had been English subjects wholly unconnected with the royal family; nor had the Parliament nor the people in general complained of any one of those marriages; moreover, two of his children, who had in their turn succeeded to the crown, had been the offspring of two of those wives; and in the last century James II., while Duke of York, had married the daughter of an English gentleman; and, though it had not been without notorious reluctance that his royal brother had sanctioned that connection, it was well known that Charles II. himself had proposed to marry the niece of Cardinal Mazarin. In the House of Peers, Lord Camden especially objected to the clause annulling a marriage between persons of full age; and in the Commons, Mr. Dowdeswell, who had been Chancellor of the Exchequer in Lord Rockingham's administration, dwelt with especial vigor on the unreasonableness of the clause which fixed twenty-five as the age before which no prince or princess could marry without the King's consent. "Law, positive law," he argued, "and not the arbitrary will of an individual, should be the only restraint. Men who are by law allowed at twenty-one[26] to be fit for governing the realm may well be supposed capable of choosing and governing a wife."[27] Lord Folkestone condemned with great earnestness the expression in the preamble that the bill was dictated "by the royal concern for the honor and dignity of the crown," as implying a doctrine that an alliance of a subject with a branch of the royal family is dishonorable to the crown--a doctrine which he denounced as "an oblique insult" to the whole people, and which, as such, "the representatives of the people were bound to oppose." And he also objected to the "vindicatory part," as he termed the clause which declared those who might assist, or even be present, at a marriage contracted without the royal permission guilty of felony.[28] The ministry, however, had a decided majority in both Houses, and the bill became and remains the law of the land, though fourteen peers, including one bishop, entered a protest against it on nine different grounds, one of which condemned it as "an extension of the royal prerogative for which the great majority of the judges found no authority;" while another, with something of prophetic sagacity, urged that the bill "was pregnant with civil discord and confusion, and had a natural tendency to produce a disputed title to the crown." It may be doubted whether the circumstances which had induced George III. to demand such a power as that with which the bill invested him justified its enactment. He was already the father of a family so numerous as to render it highly improbable that either of his brothers or any of their children would ever come to the throne; while, as a previously existing law barred any prince or princess who might marry a Roman Catholic from the succession, the additional restraint imposed by the new statute practically limited their choice to an inconveniently small number of foreign royal houses, many of which, to say the least, are not superior in importance or purity of blood to many of our own nobles. Nor can it be said to have been successful in accomplishing his Majesty's object. It is notorious that two of his sons, and very generally believed that one of his daughters, married subjects; the Prince of Wales having chosen a wife who was not only inferior in rank and social position to Lady Waldegrave or Mrs. Horton, but was moreover a Roman Catholic; and that another of his sons petitioned more than once for permission to marry an English heiress of ancient family. And our present sovereign may be thought to have pronounced her opinion that the act goes too far, when she gave one of her younger daughters in marriage to a nobleman who, however high in rank, has no royal blood in his veins. The political inconvenience which might arise from the circumstance of the reigning sovereign being connected by near and intimate relationship with a family of his British subjects will, probably, always be thought to render it desirable that some restriction should be placed on the marriage of the heir-apparent; but where the sovereign is blessed with a numerous offspring, there seems no sufficient reason for sending the younger branches of the royal house to seek wives or husbands in foreign countries. And as the precedent set in the case of the Princess Louise has been generally approved, it is probable that in similar circumstances it may be followed, and that such occasional relaxation of the act of 1772 will be regarded as justified by and consistent with the requirements of public policy as well as by the laws of nature.[29] Generally speaking, the two Houses agreed in their support of the ministerial policy both at home and abroad; but, in spite of this political harmony, a certain degree of bad feeling existed between them, which on one occasion led to a somewhat singular scene in the House of Commons. The Commons imputed its origin to the discourtesy of the Lords, who, when members of the Commons were ordered by their House to carry its bills up to the peers, sometimes kept them "waiting three hours in the lobby among their lordships' footmen before they admitted them." Burke affirmed that this had happened to himself, and that he "spoke of it, not out of any personal pride, nor as an indignity to himself, but as a flagrant disgrace to the House of Commons, which, he apprehended, was not inferior in rank to any other branch of the Legislature, but co-ordinate with them." And the irritation which such treatment excited led the Commons, perhaps not very unnaturally, to seek some opportunity to vindicate their dignity. They found it in an amendment which the Lords made on a corn bill. In the middle of April, 1772, resolutions had been passed by the Commons, in a committee of the whole House, imposing certain duties on the importation of wheat[30] and other grain when they were at a certain price, which was fixed at 48s., and granting bounties on exportation when the price fell below 44s. The Lords made several amendments on the bill, and, among others, one to strike out the clause which granted bounties. But when the bill thus amended came back to the Commons, even those who disliked the principle of bounties resented this act of the Lords in meddling with that question, which they regarded as a violation of their peculiar and most cherished privilege, the exclusive right of dealing with questions of taxation. Governor Pownall, who had charge of the bill, declared that the Lords had forgotten their duty when they interfered in raising money by the insertion of a clause that "no bounty should be paid upon exported corn." And on this ground he moved the rejection of the bill.[31] In the last chapter of this volume, a more fitting occasion for examining the rights and usages of the House of Lords with respect to money-bills will be furnished by a series of resolutions on the subject, moved by the Prime-minister of the day. It is sufficient here to say that the power of rejection is manifestly so different from that of originating grants--which is admitted to belong exclusively to the Commons--and that there were so many precedents for the Lords having exerted this power of rejection in the course of the preceding century, that they probably never conceived that in so doing now they were committing any encroachment on the constitutional rights and privileges of the Lower House. But on this occasion the ill-feeling previously existing between the two Houses may be thought to have predisposed the Commons to seek opportunity for a quarrel. And there never was a case in which both parties in the House were more unanimous. Governor Pownall called the rejection of the clause by the Lords "a flagrant encroachment upon the privileges of the House," and affirmed that the Lords had "forgotten their duty." Burke termed it "a proof that the Lords did not understand the principles of the constitution, an invasion of a known and avowed right inherent in the House as the representatives of the people," and expressed a hope that "they were not yet so infamous and abandoned as to relinquish this essential right," or to submit to "the annihilation of all their authority." Others called it "an affront which the House was bound to resent, and the more imperatively in consequence of the absence of a good understanding between the two Houses." And the Speaker, Sir John Cust, went beyond all his brother members in violence, declaring that "he would do his part in the business, and toss the bill over the table." The bill was rejected _nem. con._, and the Speaker tossed it over the table, several of the members on both sides of the question kicking it as they went out;[32] and to such a pitch of exasperation had they worked themselves up, that "the Game Bill, in which the Lords had made alterations, was served in a similar manner," though those alterations only referred to the penalties to be imposed for violations of the Game-law, and could by no stretch of ingenuity be connected with any question of taxation. Notes: [Footnote 16: A motion was, indeed, made (but the "Parliamentary History," xvi., 55, omits to state by whom) that the House should "humbly entreat his Majesty, out of his tender and paternal regard for his people, that he would be graciously pleased to name the person or persons whom, in his royal wisdom, he shall think fit to propose to the consideration of Parliament for the execution of those high trusts, this House apprehending it not warranted by precedent nor agreeable to the principles of this free constitution to vest in any person or persons not particularly named and approved of in Parliament the important offices of Regent of these kingdoms and guardian of the royal offspring heirs to the crown." But "it passed in the negative," probably, if we may judge by other divisions on motions made by the same party, by an overwhelming majority.] [Footnote 17: No one doubted that this choice had been made under the influence of Lord Bute, and was designed for the preservation of that influence.--Lord Stanhope, _History of England_, v., 41.] [Footnote 18: In his speech in the House of Lords on the Regency Bill of 1840, the Duke of Sussex stated that George III. had nominated the Queen as Regent in the first instance, and, in the event of her death, the Princess Dowager.] [Footnote 19: "Lives of the Chancellors," c. cxli.] [Footnote 20: It appears from these dates that it was not yet understood that Parliament could not be prorogued for a longer period than forty days.] [Footnote 21: These words occur in a speech attributed to Lord Mansfield. There is no detailed account of the debates on this subject in either House. All that exists in the "Parliamentary History" is a very brief abstract of the discussion in the Commons, and a document occupying above sixty pages of the same work (pp. 251-314), entitled "A Speech on behalf of the Constitution against the Suspending and Dispensing Prerogative," etc., with a foot-note explaining that "this speech was supposed to be penned by Lord Mansfield, but was, in fact, written by Mr. Macintosh, assisted by Lord Temple and Lord Lyttleton." It certainly seems to contain internal evidence that it was not written by any lawyer, from the sneers at and denunciations of lawyers which it contains, as a class of men who "have often appeared to be the worst guardians of the constitution, and too frequently the wickedest enemies to, and most treacherous betrayers of, the liberties of their country." But, by whomsoever it was "penned" and published, the arguments which it contains against the dispensing power were, probably, those which had been urged by the great Chief-justice, and as such I have ventured to cite them here.] [Footnote 22: In his "Lives of the Chief-justices" (c. xxxvi., life of Lord Mansfield), Lord Campbell says, with reference to this case: "The Chief-justice's only considerable public exhibition during this period was his attack on the unconstitutional assertion of Lord Chatham and Lord Camden, that, in a case of great public emergency, the crown could by law dispense with an act of parliament. The question arising from the embargo on the exportation of corn, in consequence of apprehended famine, he proved triumphantly that, although the measure was expedient and proper, it was a violation of law, and required to be sanctioned by an act of indemnity." And Lord Campbell adds, in a note: "This doctrine, acted upon in 1827, during the administration of Mr. Canning, and on several subsequent occasions, is now universally taken for constitutional law" (ii., 468).] [Footnote 23: To adduce a single instance, worthy of remark as affecting the personal liberty of the subject, in 1818 a bill of indemnity was passed to sanction the action of the ministry in arresting and detaining in prison, without bringing them to trial, several persons accused of being implicated in seditious proceedings (_vide infra_).] [Footnote 24: Vol. xvii., 304.] [Footnote 25: The case is mentioned by Lord Campbell in his "Lives of the Chancellors," c. cxxi. (life of Lord Macclesfield) and c. cxxiv. (life of Lord Chancellor King).] [Footnote 26: In fact, however, the age at which a young prince was considered competent to exercise the royal authority in person had been fixed at eighteen; and it is so stated in the speech in which the King, in 1765, recommended the appointment of a Regent to Parliament.-- _Parliamentary History_, xvi., 52.] [Footnote 27: This idea was expanded into an epigram, which appeared in most of the daily papers, and has been thought worthy of being preserved in the "Parliamentary History," xvii., 401 (note): "Quoth Dick to Tom, 'This act appears Absurd, as I'm alive, To take the crown at eighteen years, A wife at twenty-five. The mystery how shall we explain? For sure, as Dowdeswell said, Thus early if they're fit to _reign_, They must be fit to _wed_.' Quoth Tom to Dick, 'Thou art a fool, And nothing know'st of life; Alas! it's easier far to rule A kingdom than a wife.'"] [Footnote 28: It is remarkable that this clause on one occasion proved an obstacle to the punishment of the abettors of such a marriage. In 1793 the Duke of Sussex married Lady Augusta Murray, first at Rome, and afterward, by banns, at St. George's, Hanover Square. And when the affair came to be investigated by the Privy Council, Lord Thurlow denounced the conduct of the pair in violent terms, and angrily asked the Attorney-general, Sir John Scott, why he had not prosecuted all the parties concerned in this abominable marriage. Sir John's reply, as he reported it himself, was sufficiently conclusive: "I answered that it was a very difficult business to prosecute; that the act, it was understood, had been drawn by Lord Mansfield, the Attorney-general Thurlow, and the Solicitor-general Wedderburn, who, unluckily, had made all persons present at the marriage guilty of felony. And as nobody could prove the marriage except a person who had been present at it, there could be no prosecution, because nobody present could be compelled to be a witness."--THORP'S _Life of Eldon_, i., 235.] [Footnote 29: A protest against the bill, entered by fourteen peers, including one bishop (of Bangor), denounced it, among other objections, as "contrary to the original inherent rights of human nature ... exceeding the power permitted by Divine Providence to human legislation ... and shaking many of the foundations of law, religion, and public security."--_Parliamentary History_, xvii., 391.] [Footnote 30: The import duty on wheat was fixed at 6_d_. a quarter on grain, and 2_d_. per cwt. on flour, when the price of wheat in the kingdom should be at or above 48s.; when it was at or above 44s., the exportation was to be altogether prohibited.--_Parliamentary History_, xvii., 476.] [Footnote 31: See Hallam, "Constitutional History," iii., 38-46, ed. 1833, where, as far as the imperfection of our early Parliamentary records allows, he traces the origin of the assertion of this peculiar privilege by the Commons, especially referring to a discussion of the proper limits of this privilege in several conferences between the two Houses; where, as on some other occasions, he sees, in the assertion of their alleged rights by the Commons, "more disposition to make encroachments than to guard against those of others." A few years before (in 1763), the House of Lords showed that they had no doubt of their right to reject a money-bill, since they divided on the Cider Bill, which came under that description. As, however, the bill was passed, that division was not brought under the notice of the House. But in 1783, in the time of the Coalition Ministry, the peers having made amendments on the American Intercourse Bill, "the Speaker observed that, as the bill empowered the crown to impose duties, it was, strictly speaking, a money-bill, and therefore the House could not, consistently with its own orders, suffer the Lords to make any amendments on it, and he recommended that the consideration of their amendments should be postponed for three months, and in the mean time a new bill framed according to the Lords' amendments should be passed." The recommendation was approved by Mr. Pitt, as leader of the Opposition, and approved and acted on by Mr. Fox, as leader of the ministry in that House. But, at the same time, Mr. Fox fully admitted the right of the Lords to discuss such questions, "for it would be very absurd indeed to send a loan bill to the Lords for their concurrence, and at the same time deprive them of the right of deliberation. To lay down plans and schemes for loans belonged solely to the Commons; and he was willing, therefore, that the amended bill should be rejected, though he was of opinion that the order of the House respecting money-bills was often too strictly construed." And he immediately moved for leave to bring in a new bill, which was verbatim the same with the amended bill sent down by the Lords.--_Parliamentary History_, xxiii., 895. The question was revived in the present reign, on the refusal of the Lords to concur in the abolition of the duty on paper, when the whole subject was discussed with such elaborate minuteness, and with so much more command of temper than was shown on the present occasion, that it will be better to defer the examination of the principle involved till we come to the history of that transaction.] [Footnote 32: "Parliamentary History," xvii., 515.] CHAPTER III. Mr. Grenville imposes a Duty on Stamps in the North American Colonies.--Examination of Dr. Franklin.--Lord Rockingham's Ministry Repeals the Duty.--Lord Mansfield affirms a Virtual Representation in the Colonies.--Mr. C. Townsend imposes Import Duties in America.--After some Years, the Civil War breaks out.--Hanoverian Troops are sent to Gibraltar.--The Employment of Hanoverian Regiments at Gibraltar and Minorca.--End of the War.--Colonial Policy of the Present Reign.--Complaints of the Undue Influence of the Crown.--Motions for Parliamentary Reform.--Mr. Burke's Bill for Economical Reform.--Mr. Dunning's Resolution on the Influence of the Crown.--Rights of the Lords on Money-bills.--The Gordon Riots. But during these years another matter had been gradually forcing its way to the front, which, though at first it attracted but comparatively slight notice, when it came to a head, absorbed for several years the whole attention, not only of these kingdoms, but of foreign countries also. It was originally--in appearance, at least--merely a dispute between Great Britain and her Colonies in North America on the mode of obtaining a small revenue from them. But, in its progress, it eventually involved us in a foreign war of great magnitude, and thus became the one subject of supreme interest to every statesman in Europe. England had not borne her share in the seven years' war without a considerable augmentation of the national debt, and a corresponding increase in the amount of yearly revenue which it had become necessary to raise;[33] and Mr. Grenville, as Chancellor of the Exchequer, had to devise the means of meeting the demand. A year before, he had supported with great warmth the proposal of Sir Francis Dashwood, his predecessor at the Exchequer, to lay a new tax upon cider. Now that he himself had succeeded to that office, he cast his eyes across the Atlantic, and, on the plea that the late war had to a certain extent been undertaken for the defence of the Colonies in North America, he proposed to make them bear a share in the burden caused by enterprises from which they had profited. Accordingly, in March, 1764, he proposed a series of resolutions imposing a variety of import duties on different articles of foreign produce imported into "the British Colonies and plantations in America," and also export duties on a few articles of American growth when "exported or conveyed to any other place except to Great Britain." Another resolution affirmed "that, toward defraying the said expense, it might be proper to charge certain stamp-duties in the said Colonies and plantations." The resolutions imposing import and export duties were passed by both Houses almost without comment. That relating to a stamp-duty he did not press at the moment, announcing that he postponed it for a year, in order to ascertain in what light it would be regarded by the Colonists themselves; and as most, if not all, of the Colonies had a resident agent in London, he called them together, explained to them the object and anticipated result of the new imposition (for such he admitted it to be), and requested them to communicate his views to their constituents, adding an offer that, if they should prefer any other tax likely to be equally productive, he should be desirous to consult their wishes in the matter. He probably regarded such language on his part as a somewhat superfluous exercise of courtesy or conciliation, so entire was his conviction of the omnipotence of Parliament, and of the impossibility of any loyal man or body of men calling its power in question. But he was greatly deceived. His message was received in America with universal dissatisfaction. Of the thirteen States which made up the body of Colonies, there was scarcely one whose Assembly did not present a petition against the proposed measure, and against any other which might be considered as an alternative. Grenville, however, was not a man to be moved by petitions or remonstrances. He was rather one whom opposition of any kind hardened in his purpose; and, as no substitute had been suggested, at the opening of the session of 1765 he proposed a series of resolutions requisite to give effect to the vote of the previous year, and imposing "certain stamp-duties and other duties" on the settlements in America, perhaps thinking to render his disregard of the objections which had been made less unpalatable by the insertion of words binding the government to apply the sums to be thus raised to "the expenses of defending, protecting, and securing" the Colonies themselves. The resolutions were passed, as the "Parliamentary History" records, "almost without debate," on the 6th of March.[34] But the intelligence was received in every part of the Colonies with an indignant dissatisfaction, which astonished even their own agents in England.[35] Formidable riots broke out in several provinces. In Massachusetts the man who had been appointed Distributor of Stamps was burnt in effigy; the house of the Lieutenant-governor was attacked by a furious mob, who avowed their determination to murder him if he fell into their hands; and resolutions were passed by the Assemblies of the different States to convene a General Congress at New York in the autumn, to organize a resistance to the tax, and to take the general state of affairs into consideration. Before, however, that time came, a series of events having no connection with these transactions had led to a change of ministry in England, and the new cabinet was less inclined to carry matters with a high hand. Indeed, even the boldest statesman could hardly have learned the state of feeling which had been excited in America without apprehension, and those who had the chief weight in the new administration were not men to imperil the state by an insistance on abstract theories of right and prerogative. Accordingly, when, after Lord Rockingham had become Prime-minister, Parliament met in December, 1765, the royal speech recommended the state of affairs in America to the consideration of Parliament (a recommendation which manifestly implied a disposition on the part of the King's advisers to induce the House of Commons to retrace its steps), papers were laid before Parliament, and witnesses from America were examined, and among them a man who had already won a high reputation by his scientific acquirements, but who had not been previously prominent as a politician, Dr. Benjamin Franklin. He had come over to England as agent for Pennsylvania, and his examination, as preserved in the "Parliamentary History," may be taken as a complete statement of the matter in dispute from the American point of view, and of the justification which the Colonists conceived themselves to have for refusing to submit to pay such a tax as had now been imposed upon them. At a later day he was one of the most zealous, as he was probably one of the earliest, advocates of separation from England; but as yet neither his language nor his actions afforded any trace of such a feeling. He affirmed[36] the general temper of the Colonists toward Great Britain to have been, till this act was passed, the best in the world. They considered themselves as a part of the British empire, and as having one common interest with it. They did not consider themselves as foreigners. They were jealous for the honor and prosperity of this nation, and always were, and always would be, ready to support it as far as their little power went. They considered the Parliament of Great Britain as the great bulwark and security of their liberties and privileges, and always spoke of it with the utmost respect and veneration. They had given a practical proof of their goodwill by having raised, clothed, and paid during the last war nearly 25,000 men, and spent many millions; nor had any Assembly of any Colony ever refused duly to support the government by proper allowances from time to time to public officers. They had always been ready, and were ready now, to tax themselves. The Colonies had Assemblies of their own, which were their Parliaments. They were, in that respect, in the same situation as Ireland. Their Assemblies had a right to levy money on the subject, then to grant to the crown, and, indeed, had constantly done so; and he himself was specially instructed by the Assembly of his own State to assure the ministry that, as they always had done, so they should always think it their duty to grant such aids to the crown as were suitable to their circumstances and abilities, whenever called upon for the purpose in a constitutional manner; and that instruction he had communicated to the ministry. But the Colonies objected to Parliament laying on them such a tax as that imposed by the Stamp Act. Some duties, they admitted, the Parliament had a right to impose, but he drew a distinction between "those duties which were meant to regulate commerce and internal taxes." The authority of Parliament to regulate commerce had never been disputed by the Colonists. The sea belonged to Britain. She maintained by her fleets the safety of navigation on it; she kept it clear of pirates; she might, therefore, have a natural and equitable right to some toll or duty, on merchandise carried through that part of her dominions, toward defraying the expenses she was at in ships to maintain the safety of that carriage. But the case of imposition of internal taxes was wholly different from this. The Colonists held that, by the charters which at different times had been granted to the different States, they were entitled to all the privileges and liberties of Englishmen. They found in the Great Charters, and the Petition and Declarations of Right, that one of the privileges of English subjects is that they are not to be taxed but by their common consent; and these rights and privileges had been confirmed by the charters which at different times had been granted to the different States. In reply to a question put to him, he allowed that in the Pennsylvania charter there was a clause by which the King granted that he would levy no taxes on the inhabitants unless it were with the consent of the Colonial Assembly, or by an act of Parliament; words which certainly seemed to reserve a right of taxation to the British Parliament; but he also demonstrated that, in point of fact, the latter part of the clause had never been acted on, and the Colonists had, therefore, relied on it, from the first settlement of the province, that the Parliament never would nor could, by the color of that clause in the charter, assume a right of taxing them till it had qualified itself to exercise such right by admitting representatives from the people to be taxed. And, in addition to objections on principle, he urged some that he regarded as of great force as to the working of this particular tax imposed by the Stamp Act. It was not an equal tax, as the greater part of the revenue derived from it must arise from lawsuits for the recovery of debts, and be paid by the lower sort of people; it was a heavy tax on the poor, and a tax on them for being poor. In the back settlements, where the population was very thin, the inhabitants would often be unable to get stamps without taking a long journey for the purpose. The scarcity of specie, too, in the country would cause the pressure to be felt with great severity, as, in his opinion, there was not gold and silver enough in the Colonies to pay the stamp-duty for a single year. In reply to another question, whether the Colonists would be satisfied with a repeal of the Stamp Act without a formal renunciation of the abstract right of Parliament to impose it, he replied that he believed they would be satisfied. He thought the resolutions of right would give them very little concern, if they were never attempted to be carried into practice. The Colonies would probably consider themselves in the same situation in that respect as Ireland. They knew that the English Parliament claimed the same right with regard to Ireland, but that it never exercised it; and they might believe that they would never exercise it in the Colonies any more than in Ireland. Indeed, they would think that it never could exercise such a right till representatives from the Colonies should be admitted into Parliament, and that whenever an occasion arose to make Parliament regard the taxation of the Colonies as indispensable, representatives would be ordered. This last question put to the witness, like several others in the course of his examination, had been framed with the express purpose of eliciting an answer to justify the determination on the subject to which Lord Rockingham and his colleagues had come. It could not be denied that the government was placed in a situation of extreme difficulty-- difficulty created, in part, by the conduct of the Colonists themselves. That, as even their most uncompromising advocate, Mr. Pitt, admitted, had been imprudent and intemperate, though it was the imprudence of men who "had been driven to madness by injustice." On the one hand, to repeal an act the opposition to which had been marked by fierce riots, such as those of Boston, and even in the Assemblies of some of the States by language scarcely short of treason,[37] seemed a concession to intimidation scarcely compatible with the maintenance of the dignity of the crown or the legitimate authority of Parliament. On the other hand, to persist in the retention of a tax which the whole population affected by it was evidently determined to resist to the uttermost, was to incur the still greater danger of rebellion and civil war. In this dilemma, the ministers resolved on a course calculated, as they conceived, to avoid both evils, by combining a satisfaction of the complaints of the Colonists with an assertion of the absolute supremacy of the British crown and Parliament for every purpose. And on February 24, 1766, the Secretary of State brought in a bill which, after declaring, in its first clause, "that the King's Majesty, by and with the consent of the Lords spiritual and temporal, and Commons of Great Britain, in Parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the Colonists and people of America, subjects of the crown of Great Britain, in all cases whatsoever," proceeded to repeal the Stamp Act, giving a strong proof of the sincerity of the desire to conciliate the Colonists by the unusual step of fixing the second reading of the bill for the next day. But in its different clauses it encountered a twofold opposition, which he had, probably, not anticipated. It is unnecessary to notice that which rested solely on the inexpediency of repealing the Stamp Act, "the compulsory enforcement of which was required by the honor and dignity of the kingdom." But the first clause was even more strenuously resisted, on grounds which its opponents affirmed to rest on the fundamental principles of the constitution. It was urged in the House of Commons by Mr. Pitt that, "as the Colonies were not represented in Parliament, Great Britain had no legal right nor power to lay a tax upon them--that taxation is no part of the governing or legislative power. Taxes," said the great orator, "are the voluntary gift and grant of the Commons alone. In legislation the three estates of the realm are alike concerned; but the concurrence of the peers and the crown to a tax is only necessary to clothe it with the form of a law; the gift and grant is in the Commons alone.... The distinction between legislation and taxation is essentially necessary to liberty." Mr. Pitt had no claim to be considered as a great authority in the principles of constitutional law. George II., slight as was his political knowledge or wisdom, complained on one occasion of the ignorance of a Secretary of State who had never read Vattel; and in this very debate he even boasted of his ignorance of "law-cases and acts of Parliament." But his coadjutor in the House of Lords (Lord Camden, at this time Chief-justice of the Common Pleas) owed the chief part of the respect in which he was held to his supposed excellence as a constitutional lawyer, and he fully endorsed and expanded Pitt's arguments when the bill came up to the House of Lords. He affirmed that he spoke as "the defender of the law and the constitution; that, as the affair was of the greatest consequence, and in its consequences might involve the fate of kingdoms, he had taken the strictest review of his arguments, he had examined and re-examined all his authorities; and that his searches had more and more convinced him that the British Parliament had no right to tax the Americans. The Stamp Act was absolutely illegal, contrary to the fundamental laws of nature, contrary to the fundamental laws of this constitution--a constitution governed on the eternal and immutable laws of nature. The doctrine which he was asserting was not new; it was as old as the constitution; it grew up with it; indeed, it was its support. Taxation and representation are inseparably united. God hath joined them; no British government can put them asunder. To endeavor to do so is to stab our very vitals." And he objected to the first clause (that which declared the power and right to tax), on the ground that if the ministers "wantonly pressed this declaration, although they were now repealing the Stamp Act, they might pass it again in a month." He even argued that "they must have future taxation in view, or they would hardly assert their right to enjoy the pleasure of offering an insult." He was answered by Lord Northington (the Chancellor) and by Lord Mansfield (the Chief-justice), both of whom supported the motion to repeal the tax, but who also agreed in denying the soundness of his doctrine that, as far as the power was concerned, there was any distinction between a law to tax and a law for any other purpose; and Lord Mansfield farther denied the validity of the argument which it had been attempted to found on the circumstance that the Colonies were not represented in Parliament, propounding, on the contrary, what Lord Campbell calls "his doctrine of virtual representation." "There can," said he, "be no doubt but that the inhabitants of the Colonies are represented in Parliament, as the greatest part of the people of England are represented, among nine millions of whom there are eight who have no votes in electing members of Parliament. Every objection, therefore, to the dependency of the Colonies upon Parliament which arises upon the ground of representation goes to the whole present constitution of Great Britain.... For what purpose, then, are arguments drawn from a distinction in which there is no real difference of a virtual and an actual representation? A member of Parliament chosen for any borough represents not only the constituents and inhabitants of that particular place, but he represents the inhabitants of every other borough in Great Britain. He represents the City of London and all the other Commons of the land, and the inhabitants of all the colonies and dominions of Great Britain, and is in duty and conscience bound to take care of their interests." Lord Mansfield's doctrine of a virtual representation of the Colonies must be admitted to be overstrained. The analogy between the case of colonists in a country from no part of which representatives are sent to Parliament, and that of a borough or county where some classes of the population which may, in a sense, be regarded as spokesmen or agents of the rest form a constituency and return members, must be allowed to fail; yet the last sentences of this extract are worth preserving, as laying down the important constitutional principle, subsequently expanded and enforced with irresistible learning and power of argument by Burke, that a member of the House of Commons is not a delegate, bound, under all circumstances, to follow the opinions or submit to the dictation of his constituents, but that from the moment of his election he is a councillor of the whole kingdom, bound to exercise an independent judgment for the interests of the whole people, rather than to guide himself by the capricious or partial judgments of a small section of it. But in its more immediate objects--that of establishing the two principles, that the constitution knows of no limitation to the authority of Parliament, and of no distinction between the power of taxation and that of any other kind of legislation--Lord Mansfield's speech is now universally admitted to have been unanswerable.[38] The abstract right was unquestionably on the side of the minister and the Parliament who had imposed the tax. But he is not worthy of the name of statesman who conceives absolute rights and metaphysical distinctions to be the proper foundation for measures of government, and pays no regard to custom, to precedent, to the habits and feelings of the people to be governed; who, disregarding the old and most true adage, _summum jus summa injuria_, omits to take into his calculations the expediency of his actions when legislating for a nation which he is in the daily habit of weighing in his private affairs. The art or science of government are phrases in common use; but they would be void of meaning if all that is requisite be to ascertain the strict right or power, and then unswervingly to act upon it in all its rigor. And, therefore, while it must be admitted that the character of the power vested in King, Lords, and Commons assembled in Parliament is unlimited and illimitable, and that the legal competency to enact a statute depends in no degree whatever on the wisdom or folly, the justice or wickedness, of the statute, the advice given to a constitutional sovereign by his advisers must be guided by other considerations. To quote by anticipation the language addressed to the Commons on this subject by Burke eight years afterward, the proper policy was "to leave the Americans as they anciently stood ... To be content to bind America by laws of trade. Parliament had always done it. And this should be the reason for binding their trade. Not to burden them by taxes; Parliament was not used to do so from the beginning; and this should be the reason for not taxing. These are the arguments of states and kingdoms."[39] The ministry were strong enough to carry their resolutions through both Houses. Their measure was divided into two acts, one known as the Declaratory Act, asserting the absolute and universal authority of Parliament; the other repealing the Stamp Act of the preceding year. And both were passed without alteration, though the Lords divided against them on both the second and third readings of the bill for repeal founded on them,[40] some of them entering long protests in the journals of the House. The right to tax was asserted, but the tax itself was repealed. And Franklin's estimate of the feelings on the subject entertained by his countrymen was fully verified by the reception which the intelligence met with in the Colonies. To quote the description of Lord Stanhope: "In America the repeal of the Stamp Act was received with universal joy and acclamation. Fireworks and festivals celebrated the good news, while addresses and thanks to the King were voted by all the Assemblies.... The words of the Declaratory Act, indeed, gave the Americans slight concern. They fully believed that no practical grievance could arise from it. They looked upon it merely as a salve to the wounded pride of England; as only that 'bridge of gold' which, according to the old French saying, should always be allowed to a retreating assailant."[41] A recent writer, however, has condemned the addition of the declaration of the abstract right to tax with great vehemence. "Nothing," says Lord Campbell,[42] "could exceed the folly of accompanying the repeal of the Stamp Act with the statutable declaration of the abstract right to tax." But it does not seem difficult to justify the conduct of the ministry in this particular. For, besides the great weight deservedly attached to Franklin's assurance that the declaration would not be objected to by the Colonists, and besides the consideration that, on a general view, it was desirable, if not indispensable, to impress on all classes of subjects, whether at home or abroad, the constitutional doctrine of the omnipotence of Parliament, the line of argument adopted by Mr. Pitt and Lord Camden, in denying that omnipotence, left the ministers no alternative but that of asserting it, unless they were prepared to betray their trust as guardians of the constitution. Forbearance to insist on the Declaratory Act could not fail to have been regarded as an acquiescence on their part in a doctrine which Lord Campbell in the same breath admits to be false. It may be added, as a consideration of no small practical weight, that, without such a Declaratory Act, the King would have been very reluctant to consent to the other and more important Repealing Act. And, on the whole, the conduct of the ministry may, we think, be regarded as the wisest settlement both of the law and of the practice. It asserted the law in a manner which offended no one; and it made a precedent for placing the spirit of statesmanship above the letter of the law, and for forbearing to put forth in its full strength the prerogatives whose character was not fully understood by those who might be affected by them, and also could plead that Parliament itself had contributed to lead them to misunderstand it by its own conduct in never before exerting it. For the moment, then, contentment and tranquillity were restored in the Colonies. Unhappily, they were not lasting. The same year which saw the triumph of the Rockingham administration in the repeal of the Stamp Act, witnessed also its fall before a discreditable intrigue. And the ministry which succeeded it had not been a year in office before the new Chancellor of the Exchequer, Charles Townsend, revived the discontents in America which Lord Rockingham had appeased. It cannot be said, however, that the blame should all belong to him; or that the Rockingham party in the House of Commons were entirely free from a share in it. They were--not unnaturally, perhaps--greatly irritated at the intrigue by which Lord Chatham had superseded them, and were not disinclined to throw difficulties in the way of their successors, for which the events of the next year afforded more than one opportunity. Lord Chatham, as has been mentioned, was universally recognized as the chief of the new ministry, though he abstained from taking the usual office of First Lord of the Treasury, and contented himself with the Privy Seal; but he had constructed it of such discordant elements[43] that no influence but his own could preserve consistency in its acts or harmony among its members, as nothing but his name could give it consideration either in Parliament or in the country. In the first months of the next year, 1767, he was attacked with an illness which for a time disabled him from attending the cabinet, being, apparently, the forerunner of that more serious malady which, before the end of the summer, compelled his long retirement from public life; and the Opposition took advantage of the state of disorganization and weakness which his illness caused among his colleagues, to defeat them on the Budget in the House of Commons, by an amendment to reduce the land-tax, which caused a deficiency in the supplies of half a million. This deficiency it, of course, became necessary to meet by some fresh tax; and Townsend--who, though endowed with great richness of eloquence, was of an imprudent, not to say rash, temper, and was possessed of too thorough a confidence in his own ingenuity and fertility of resource ever to be inclined to take into consideration any objections to which his schemes might be liable--proposed to raise a portion of the money which was needed by taxes on glass, paper, tea, and one or two other articles, to be paid as import duties in the American Colonies. His colleagues, and especially the Duke of Grafton himself, the First Lord of the Treasury, and as such the nominal Prime-minister, having been also, as Secretary of State, a member of Lord Rockingham's ministry, which had repealed the former taxes, did not consent to the measure without great and avowed reluctance; but yielded their own judgment to the strong feeling in its favor which notoriously existed in the House of Commons.[44] Indeed, that House passed the clauses imposing these import duties without hesitation, being, probably, influenced in no small degree by the evidence given in the preceding year by Dr. Franklin, who, as has been already seen, had explained that the Colonists drew a distinction between what he called "internal taxes" and import duties "intended to regulate commerce," and that to the latter class they were not inclined to object. And a second consideration was, that these new duties were accompanied and counterbalanced by a reduction of some other taxes; so that the ministry contended that the effect of these financial measures, taken altogether, would be to lower to the Colonists the price of the articles affected by them rather than to raise it. But one of the resolutions adopted provided that the whole of the money to be raised from these taxes should not be spent in America, but that, after making provision for certain Colonial objects specified, "the residue of such duties should be paid into the receipt of his Majesty's Exchequer, and there reserved, to be from time to time disposed of by Parliament toward defraying the necessary expenses of defending, protecting, and securing the said Colonies and plantations." And this clause seems to have been understood as designed to provide means for augmenting the number of regular troops to be maintained in the Colonies, whose employment in the recent disturbances had made them more unpopular than formerly.[45] At all events, the intelligence of these new taxes, though only import duties, found the Colonists in a humor to resist any addition of any kind to their financial burdens. The events of the last two years had taught them their strength. It was undeniable that the repeal of the Stamp Act had been extorted by the riots in Boston and other places, and the success of this system of intimidation could not fail to encourage its repetition. Accordingly, the news of this fresh attempt at taxation was met by a unanimous determination to resist it. Newspaper writers and pamphleteers denounced not only the duties but the ministry which imposed them. Petitions from almost every State were sent over to England, addressed to the King and to the Parliament; but the violent temper of the leaders of the populace was not content to wait for answers to them. Associations were at once formed in Boston and one or two other cities, where resolutions were adopted in the spirit of retaliation (as their framers avowed), to desist from the importation of any articles of British commerce, and to rely for the future on American manufactures. The principal Custom-house officers at Boston were badly beaten, and others were compelled to seek refuge in a man-of-war which happened to be in the harbor. It would be painful, and at the present day useless, to trace the steps by which these local disturbances gradually grew into one general insurrection. The spirit of resistance was undoubtedly fanned by a party which from the first contemplated a total separation from England as its ultimate result,[46] if, indeed, they had not conceived the design even before Grenville had given the first provocation to discontent. But the Colonists were not without advocates in England, even among the members of the government. The Duke of Grafton, while he remained Prime-minister, was eager to withdraw all the duties of which they complained; but he was overruled by the majority of his colleagues. He prevailed, however, so far that Lord Hillsborough, the Secretary of State, was authorized to write a circular-letter to the governors of the different provinces, in which he disowned, in the most distinct language possible, "a design to propose to Parliament to lay any farther taxes upon America for the purpose of raising a revenue," and promised for the next session a repeal of all the taxes except that on tea; and when the Duke retired from the Treasury, and was succeeded by Lord North, that statesman himself brought forward the promised repeal in an elaborate speech,[47] in which he explained that the duty on tea, which he alone proposed to retain, had been originally a boon to the Americans rather than an injury, as being accompanied by the removal of a far heavier tax. But he admitted that even that consideration was not the one which influenced him in his opinion that that duty should be maintained, so greatly was the perception that the real object of those who complained of it was, not the redress of a grievance, but the extinction of a right which was an essential part of "the controlling supremacy of England." The fact that the right to tax had been denied made it a positive duty on the part of the English minister to exert that right. "To temporize would be to yield, and the authority of the mother country, if now unsupported, would be relinquished forever." And he avowed his idea of the policy proper to be pursued to be "to retain the right of taxing America, but to give it every relief that might be consistent with the welfare of the mother country." He carried his resolution, though the minority--which on this occasion was led by Mr. Pownall, who had himself been Governor of Massachusetts, and who moved an amendment to include tea in the list of taxes proposed to be repealed--was stronger than usual.[48] But the concession failed to conciliate a single Colonist; it had become, as Burke said four years afterward, a matter of feeling,[49] and the irritation fed on itself, till, in 1773, a fresh act, empowering the East India Company to export tea to the Colonies direct from their own warehouses without its being subject to any duty in England--which Lord North undoubtedly intended as a boon to the Colonists--only increased the exasperation. The ships which brought the tea to Boston were boarded and seized by a formidable body of rioters disguised as native savages, and the tea was thrown into the sea. The intelligence was received in England with very different feelings by the different parties in the state. The ministers conceived themselves forced to assert the dignity of the crown, and proposed bills to inflict severe punishment on both the City of Boston and the whole Province of Massachusetts. The Opposition insisted on removing the cause of these disturbances by a total repeal of the tea-duty. The minister prevailed by a far larger majority than before, but his success only increased the exasperation in the Colonies; and it was an evil omen for peace that the leaders of the resistance began to search the records of the English Long Parliament "for the revolutionary precedents and forms of the Puritans of that day."[50] The next year saw fresh attempts to procure the repeal of the obnoxious tax rejected by the House of Commons; but, before the news of this division reached America, blood had already been shed.[51] Civil war began. The next year the Colonies, now united in one solid body, asserted their Independence, taking the title of the United States; and, though the government at home made more than one effort to recall the Colonists to their allegiance, and sent out commissioners of high rank, with large powers of concession; and though in one remarkable instance the mission of Mr. Penn, in the summer of 1775, with the petition to the King known as "the Olive Branch," seemed to show a desire for a maintenance of the union on the part of the Colonial Congress,[52] from the moment that the sword was drawn all hope of preserving the connection of the Colonies must have been seen by all reasonable men to be at an end. It is beside our present purpose to recapitulate the military operations of the war, though they verified another of Burke's warnings, that, supposing all moral difficulties to be got over, the ocean remained--that could not be dried up; and, as long as it continued in its present bed, so long all the causes which weakened authority by distance must continue. In fact, distance from England was one of the main circumstances which decided the contest. The slowness of communication--almost inconceivable to the present generation--rendered impossible that regularity in the transport of re-enforcements and supplies which was indispensable to success; and, added to the strange absence of military skill shown by every one of the British generals, soon placed the eventual issue of the war beyond a doubt. But one measure by which Lord North's government endeavored to provide for the strengthening of the army employed in America was so warmly challenged on constitutional grounds, that, though the fortunate separation of Hanover from Great Britain has prevented the possibility of any recurrence of such a proceeding, it would be improper to pass it over. In his speech at the opening of the autumnal session of 1775, the King announced to the Houses that, in order to leave a larger portion of the established forces of the kingdom available for service in North America, he "had sent a part of his Electoral troops to the garrisons of Gibraltar and Port Mahon." And the announcement aroused a vehement spirit of opposition, which found vent in the debates of both Houses on the address, and in two substantive motions condemning the measure as a violation of the constitution as established by the Bill of Rights and the Act of Settlement. It was strenuously maintained that both these statutes forbade the raising or keeping on foot a standing army in the kingdom in time of peace, and also the introduction of foreign troops into this kingdom, without the previous consent of Parliament, on any pretence whatever; and that "the fact that Gibraltar and Minorca were detached from these islands did not exclude them from the character of forming a part of the British dominion." And on these grounds Lord Shelburne, who supported Lord Rockingham on an amendment to the address, did not hesitate to denounce this employment of the Hanoverian regiments, as "fundamentally infringing the first principles of our government," and to declare it "high-treason against the constitution." He asked, "if there were a settled plan to subdue the liberties of this country, what surer means could be adopted than those of arming Roman Catholics and introducing foreign troops?"[53] and compared the measure under discussion to the case of the Dutch regiments of William III., "which the Parliament wisely refused to allow him to retain." In the House of Commons, the Opposition was led by Sir James Lowther and Governor Johnstone, the latter of whom "appealed to the clause in the Act of Settlement which enacted that no person born of other than English parents should enjoy any office or place of trust, civil or military, within the kingdom;" and argued that to employ foreign officers in the protection of a British fortress was to place them in an "office of great military trust." The discussion brought to light strange divisions and weakness in the ministry. The ministerial lawyers differed on the grounds on which they relied, the Attorney-general, Thurlow, denying that the expression "this kingdom" in the Bill of Rights included the foreign dependencies of the crown[54] (a narrowing of its force which the Chancellor, Lord Bathurst, wholly repudiated), while the argument on which he himself insisted most strongly, that the existence of rebellion in America put end to all conditions which supposed the kingdom to be at peace, could not obtain the support of any one of his colleagues. But a plea urged by an independent member, Lord Denbigh, was regarded by some of the speakers with greater favor; his contention being that neither the Bill of Rights nor the Act of Settlement had been violated, since both those great statutes must be interpreted with reference to the time at which they were framed, and to the recent acts of James II. and William III., the recurrence of which they had been designed to prevent, acts to which the present proceeding bore no resemblance. A stronger justification, however, might have been found in very recent precedents. In 1745 the ministers had brought over six thousand Dutch troops to re-enforce the army of the Duke of Cumberland, and their act had been subsequently approved by Parliament. And in 1756, at the commencement of the seven years' war, when the loss of Minorca had led to such a distrust of our fleets that a French invasion was very generally apprehended, both Houses presented addresses to George II., begging him to bring over some Hanoverian regiments; and, in the course of the next year, other addresses to thank him for compliance with their entreaty. Looking at the strict law of the question, few lawyers doubt that the expression "this kingdom" in the Bill of Rights includes the entire dominions of the crown, or that that great statute was undoubtedly intended to protect the privileges of all their inhabitants, whether within the four seas or in foreign settlements. But it also seems that the clause against raising and keeping on foot a standing army without the consent of Parliament was not more violated by keeping a mixed garrison in Gibraltar and Port Mahon than garrisons consisting of native soldiers only; and undoubtedly the keeping of an armed force in both these fortresses had been sanctioned by Parliament. Nor could the colonel of a foreign regiment in garrison under the command of a British governor be fairly said to be in an office of great military trust. So far, therefore, the charge against the ministry may be thought to have failed. But the accusation of having transgressed the clause which prohibits "the introduction of foreign troops into this kingdom without the previous consent of Parliament on any pretence whatever," must, on the other hand, be regarded as proved. And, indeed, Lord North himself may be taken to have shown some consciousness that it was so, since he justified his conduct in omitting to procure that previous consent by the necessity of the case, by the plea that, as Parliament was in vacation, the time which would have been consumed in waiting for its sanction would have neutralized the advantage desired from the employment of the Hanoverians, since the regiments which they were to replace at Gibraltar and Port Mahon could not, after such delay, have reached America in time to be of service; and since he also consented eventually to ask Parliament for an Act of Indemnity, the preamble of which affirmed the existence of doubts as to the legality of the step which had been taken. And the fate of this act afforded a still more striking proof of the divisions in the ministry, since, after Lord North himself had proposed it in the House of Commons, and it had been passed there by a large majority, it was rejected in the House of Lords, where his own colleagues, Lord Gower, Lord Suffolk, and Lord Weymouth, spoke and voted against it as needless, because, in their judgment, no doubt of the state of the law on the subject could exist. From a statesman-like point of view, the employment of the Hanoverians seems abundantly defensible, if force were still to be employed to bring back the Colonists to their obedience. The circumstance of their being subjects of our sovereign in his other character of Elector of Hanover, clearly distinguished it from the hiring of the Hessian and Brunswick mercenaries, which has been deservedly condemned. And, as the entire number fell short of two thousand,[55] Lord Shelburne's expression of fear for the liberties and religion of Englishmen was an absurd exaggeration. Moreover, the warm approval which, less than twenty years before, Parliament had given to the introduction of a far larger body of the same troops into England itself, justified the anticipation that a similar sanction would now be cheerfully given. That sanction--which, indeed, might have been thought to be invited by the announcement of the measure in the King's speech--was undoubtedly requisite. And, if it was, a Bill of Indemnity for having acted without it was equally necessary. But, as has been seen in the last chapter, for an administration, on urgent occasions, to take action on its own responsibility, and then to apply for indemnity, is a course in strict harmony with the practice of the constitution; and if in this instance the ministers are in any respect blamable, their error would seem to have been limited to their abstaining from instantly calling Parliament together to sanction their act, and being contented to wait for the ordinary time of the Houses meeting. The war, therefore, went on. The assertion of their independence by the Colonies divided, and, so far, weakened, the advocates of their cause in Parliament, one section of whom, led by Lord Chatham, regarded any diminution of our dominion as not only treasonable, but ruinous; on the other hand, it procured them the alliance of France and Spain. But it cannot be said that either of these incidents produced any practical effect on the result of the war. Lord Chatham's refusal to contemplate their independence could not retard its establishment; and the alliance of France and Spain, which brought nothing but disaster to those countries, could not accelerate it by a single moment. For nearly six years the war continued with alternations of success, the victories gained by the British arms being the more numerous, the triumphs of the Americans being incomparably the more important, involving as they did the surrender of two entire armies, the latter of which, that of Lord Cornwallis, in 1781, did, in fact, terminate the war, and with the war the existence of the ministry which had conducted it. A singularly rapid succession of new administrations ensued--so rapid that the negotiations for peace which the first, that of Lord Rockingham, opened, were not formally completed till the third,[56] known as the Coalition Ministry, was on the point of dismissal. It would be beside our purpose to enter into the details of the treaty which constituted the United States, as they were now called, a nation by our formal recognition of their independence. Even in that recognition, which was the most important article of the treaty, no constitutional principle was involved, though it affords the only instance in our history which can seem to throw a doubt on our inheritance of that capacity for government which the Roman poet claimed as, in ancient times, the peculiar attribute of his own countrymen. It presents the only instance of a loss of territory peopled by men who came of our blood, and who still spoke our language. It was a stern and severe lesson; and yet, fraught with discredit and disaster as it was, it nevertheless bore fruit in a later age which we may be excused for regarding as an example of the generally predominating influence of sober practical sense in our countrymen, when not led away by the temporary excitement of passion, as shown in our capacity to take home to ourselves and profit by the teachings of experience. The loss of the American Colonies was caused by the submission of the Parliament and nation to men of theory rather than of practice; ideologists, as Napoleon called them; doctrinaires, to use the modern expression; men who, because Parliament had an abstract right of universal legislation, regarded it as a full justification for insisting on its exercise, without giving a thought to the feelings, or prejudices, or habits of those who might be affected by their measures. Abstractedly considered, Lord Chatham and Lord Camden were undoubtedly wrong in denying the power of Parliament to tax the Colonies; but there was better judgment in their counsels, though founded on false premises, than in those of Grenville and Townsend, though theirs was the more correct view of the constitutional power of legislation. The two peers were wrong in their principle; the two Chancellors of the Exchequer were unwise in their application of their principle; and the practical error was the more disastrous one. It is now generally admitted that the true statesman-like course toward the Colonies was that adopted by Lord Rockingham and his colleagues in 1765--to avoid weakening the supreme power of Parliament by any disavowal of the right to tax but to avoid imperilling the sovereign authority of the King by a novel exertion of it. As much of our common English law is made up of precedent, so, in a still greater degree, are our feelings and ideas of our rights and privileges regulated by precedent. And we lost America because in 1764 and 1767 neither minister nor Parliament took men's feelings and prejudices into account. The loss of the United States, therefore, was a lesson not undeserved; and by our statesmen since that day it has been taken in the right spirit of profiting by its teaching as a guide to their own conduct. Since that day the enterprise of our people has planted our flag in regions far more distant, and has extended the dominion of our sovereign over provinces far more extensive than those which we then lost. And on some of the administrations of the present reign the duty has fallen of framing schemes of government for those new acquisitions, as also for some of those previously possessed. In how different a spirit from that which actuated the early ministers of George III.[57] those to whom the task was committed by Queen Victoria applied themselves to their task may be seen in a maxim laid down by the present Lord Grey, when he presided at the Colonial Office (1846-1852), that "the success of free institutions in any country depends far less upon the particular form of those institutions than upon the character of the people on whom they are conferred." But how he and others in the same office carried out that principle must be reserved for a later chapter. Besides the numerous motions which were brought forward by the Opposition respecting the continuance and conduct of the war, there were several also which were indirectly prompted by it. The Opposition claimed to be on this subject not only the champions of the real interests of the nation, but also its spokesmen, who expressed the opinions and feelings of all the thinking and independent portion of the people. That their efforts were overborne they attributed to the subservience of the Parliament to the ministers, and of the ministers to the crown.[58] And consequently several motions were made by members of that party, the object of which was, in one way or another, to diminish what they regarded as the undue influence of the crown. In one instance, and that the most successful, a direct denunciation of that influence was employed, but the earlier and more frequent proposals were directed to the purification of the House of Commons, and to the strengthening of its independence. It is remarkable that of these the two which related to a subject of which the Commons are usually most especially and most rightly jealous, the interference of peers in elections, had the worst fortune. In 1780 complaints were made and substantiated that the Duke of Bolton and the Duke of Chandos (who was also Lord-lieutenant of the county) had exerted themselves actively in the last election for Hampshire. And, in support of motions that these peers "had been guilty of a breach of the privileges of the House, and an infringement of the liberties and privileges of the Commons of Great Britain," a case was adduced in which Queen Anne had dismissed the Bishop of Worcester from the office of Almoner for similar interference. Nor did Lord Nugent, a relative of the Duke of Chandos, deny the facts alleged; on the contrary, he avowed them, and adopted a line of defence which many must have thought an aggravation of the charge, since it asserted that to prevent such interference was impossible, and therefore the House would but waste its time in trying. However, on this occasion the House took the view which he thus suggested to it, postponing all farther consideration of the matter for four months; and the charge the Duke of Bolton was shelved in a somewhat similar manner. Even had these peers and such practices been censured with the very greatest severity, the censures could have had but a very limited effect. But it was on measures of a wider scope, embracing what began to be called a Reform of Parliament, that the more zealous members of the Opposition placed their chief reliance. As far as our records of the debates can be trusted, Lord Chatham, ten years before, had given the first hint of the desirableness of some alteration of the existing system. On one occasion he denounced the small boroughs as "the rotten part of the constitution," thus originating the epithet by which they in time came to be generally described; but more usually he disavowed all idea of disfranchising them, propounding rather a scheme for diminishing their importance by a large addition to the county members. However, he never took any steps to carry out his views, thinking, perhaps, that it was not in the Upper House that such a subject should be first broached. But he had not been long in the grave, when a formal motion for a reform of a different kind was brought forward by one of the members for the City of London, Alderman Sawbridge,[59] who, in May, 1780, applied for leave to bring in "a bill for shortening the duration of Parliaments." His own preference he avowed to be for annual Parliaments; but his suspicion that the House would think such a measure too sweeping had induced him to resolve to content himself with aiming at triennial Parliaments. As leave was refused, the bill proposed to be introduced may, perhaps, be thought disentitled to mention here, were it not that the circumstance that proposals for shortening the duration of Parliaments are still occasionally brought forward seems to warrant an account of a few of the arguments by which those who took the leading parts in the debate which ensued resisted it. The minister, Lord North, declared that the Alderman had misunderstood the views of our ancestors on the subject; as their desire had been, not that Parliament should be elected annually, but that it should sit every year, an end which had now been attained. Fox, on the other hand, while avowing that hitherto he had always opposed similar motions, declared his wish now to see not only triennial but annual Parliaments, as the sole means of lessening the influence of the crown. "If any of his constituents were to ask him to what our present misfortunes were ascribable, he should say the first cause was the influence of the crown; the second, the influence of the crown; and the third, the influence of the crown." But it was replied by Burke, who usually exhausted every question he took in hand, that such a bill would rather tend to augment that influence, since "the crown, by its constant stated power, influence, and revenue, would be able to wear out all opposition at elections; that it would not abate the interest or inclination of ministers to apply that interest to the electors; on the contrary, it would render it more necessary to them, if they desired to have a majority in Parliament, to increase the means of that influence, to redouble their diligence, and to sharpen dexterity in the application. The whole effect of the bill would, therefore, be to remove the application of some part of that influence from the elected to the electors, and farther to strengthen and extend a court interest already great and powerful in boroughs. It must greatly increase the cost of a seat in Parliament; and, if contests were frequent, to many they would become a matter of expense totally ruinous, which no fortunes could bear. The expense of the last general election was estimated at £1,500,000; and he remembered well that several agents for boroughs said to candidates, 'Sir, your election will cost you £3000 if you are independent; but, if the ministry supports you, it may be done for £2000, and even less.'" And he adduced the case of Ireland, where formerly, when "a Parliament sat for the King's life, the ordinary charge for a seat was £1500; but now, when it sat for eight years, four sessions, the charge was £2500 and upward." Such a change as was proposed would cause "triennial corruption, triennial drunkenness, triennial idleness, etc., and invigorate personal hatreds that would never be allowed to soften. It would even make the member himself more corrupt, by increasing his dependence on those who could best support him at elections. It would wreck the fortunes of those who stood on their own private means. It would make the electors more venal, and injure the whole body of the people who, whether they have votes or not, are concerned in elections." Finally, it would greatly impair the proper authority of the House itself. "It would deprive it of all power and dignity; and a House of Commons without power and without dignity, either in itself or its members, is no House of Commons for this constitution." The applicability of some of his arguments--those founded on the disorders at times of election--has been greatly diminished, if not destroyed, at the present day, by the limitation of the polling to a single day. The disfranchisement of the smaller boroughs has neutralized others; but the expense of a general election is not believed to have diminished, and that alone seems a strong objection to a system which would render them more frequent than they are at present. Mr. Sawbridge could not obtain the support of a third of his hearers.[60] But his notions had partisans in the other House who were not discouraged by such a division; and three weeks later the Duke of Richmond brought forward a Reform Bill on so large a scale that, as the "Parliamentary History" records, "it took him an hour and a half to read it," and which contained provisions for annual Parliaments and universal suffrage. But he met with even less favor than the Alderman, and his bill was rejected without a division. Still the subject was not allowed to rest. Even after Lord North had been replaced by Lord Rockingham, the demand for Parliamentary Reform was continued; the young Mr. Pitt making himself the mouth-piece of the Reformers, and founding a motion which he made in May, 1782, on "the corrupt influence of the crown; an influence which has been pointed at in every period as the fertile source of all our miseries; an influence which has been substituted in the room of wisdom, of activity, of exertion, and of success; an influence which has grown up with our growth and strengthened with our strength, but which, unhappily, has not diminished with our diminution, nor decayed with our decay." He brought forward no specific plan, but denounced the close boroughs, and asked emphatically whether it were "representation" for "some decayed villages, almost destitute of population, to send members to Parliament under the control of the Treasury, or at the bidding of some great lord or commoner." He, however, was defeated, though by the small majority of twenty. And it is remarkable that when, the next year, he revived the subject, developing a more precise scheme--akin to that which his father had suggested, of increasing the number of county members, and including provisions for the disfranchisement of boroughs which had been convicted of systematic corruption--he was beaten by a far larger majority,[61] the distinctness of his plan only serving to increase the numbers of his adversaries. A kinsman of Pitt's, Lord Mahon, made an equally futile attempt to diminish the expenses of elections, partly by inflicting very heavy penalties on parties guilty of either giving or receiving bribes,[62] and partly by prohibiting candidates from providing conveyances for electors; and more than one bill for disfranchising revenue-officers, as being specially liable to pressure from the government, and to prevent contractors from sitting in Parliament, was brought forward, but was lost, the smallness of the divisions in their favor being not the least remarkable circumstance in the early history of Reform. It was made still more evident that as yet the zeal for Reform was confined to a few, when, two years afterward, Pitt, though now invested with all the power of a Prime-minister, was as unable as when in opposition to carry a Reform Bill, which in more than one point foreshadowed the measure of 1832; proposing, as it did, the disfranchisement of thirty-six small boroughs, which were to be purchased of their proprietors nearly on the principle adopted in the Irish Union Act, and on the other hand the enfranchisement of copyholders; but it differed from Lord Grey's act in that it distributed all the seats thus to be obtained among the counties, with the exception of a small addition to the representatives of London and Westminster. However, his supporters very little exceeded the number who had divided with him in 1783, and Lord North, who led the Opposition in a speech denouncing any change, had a majority of seventy-four. After this second defeat, Pitt abandoned the question, at all events for the time; being convinced, to quote Earl Stanhope's description of his opinion on the subject, "that nothing but the pressure of the strongest popular feeling, such as did not then exist, could induce many members to vote against their own tenure of Parliament, or in fact against themselves."[63] What, perhaps, weighed with him more, on deciding to acquiesce in this vote as final, was the perception that as yet the question excited no strong interest out-of-doors; and when, a few years later, some who sought to become leaders of the people endeavored to raise an agitation on the subject, their teachings were too deeply infected with the contagion of the French Revolution to allow a wise ruler to think it consistent with his duty to meet them with anything but the most resolute discouragement. But, concurrently with the first of these motions for Parliamentary Reform, two more direct attacks on the royal influence, and on what was alleged to be the undue exertion of it, were made in the session of 1780. The first was made by Burke, who brought forward a measure of economical reform, demonstrating, in a speech of extraordinary power, a vast mass of abuses, arising from corrupt waste in almost every department of the state, and in every department of the royal household, without exception, and proposing a most extensive plan of reform, which dealt with royal dignities, such as the Duchy of Lancaster and the other principalities annexed to the crown; with the crown-lands, a great portion of which he proposed to sell; with the offices of the royal household, a sufficient specimen of the abuses on which was furnished by the statement, that the turnspit in the King's kitchen was a member of Parliament; and with many departments of state, such as the Board of Works and the Pay-office, etc. He was studiously cautious in his language, urging, indeed, that his scheme of reform would "extinguish secret corruption almost to the possibility of its existence, and would destroy direct and visible influence equal to the offices of at least fifty members of Parliament," but carefully guarding against any expressions imputing this secret corruption, this influence which it was so desirable to destroy, to the crown. But his supporters were less moderate; and Mr. Thomas Townsend declared that facts which he mentioned "contained the most unquestionable presumptive evidence of the influence of the crown; he meant the diverting of its revenues to purposes which dared not be avowed, in corrupting and influencing the members of both Houses of Parliament;" and he asserted that "the principle and objects of the bill were the reduction of the influence of the crown." The bill was not opposed by the ministers on its principle; but Lord North, even while consenting to its introduction, "did not pledge himself not to oppose it in some or other of its subsequent stages;" and, in fact, his supporters resisted it in almost every detail, some of them utterly denying the right of the House to interfere at all with the expenditure of the civil list; others contesting the propriety of alienating the crown-lands; and a still greater number objecting to the abolition of some of the offices which it was proposed to sweep away, such as that of the "third Secretary of State, or Secretary for the Colonies," that of "Treasurer of the Chamber," and others of a similar character. And, as the minister succeeded in defeating him on several, though by no means all, of these points, Burke at last gave up the bill, Fox warning the House at the same time that it should be renewed session after session, and boasting that even the scanty success which it had met with had been worth the struggle. The other direct attack was made by Mr. Dunning, who, perhaps, did not then foresee that he himself was destined soon to fill one of the offices which had come under the lash of Burke's sarcasm, and who a few days afterward, in moving that it was necessary to declare "that the influence of the crown had increased, was increasing, and ought to be diminished" rested no small portion of his argument on the treatment that Burke's bill had received. He affirmed that, though Lord North had declared that "the influence of the crown was not too great," the divisions on that bill, and on many other measures which had been under discussion, were irrefragable proofs of the contrary. He quoted Hume and Judge Blackstone as testifying to the existence and steady increase of that influence, and "could affirm of his own knowledge, and pledge his honor to the truth of the assertion, that he knew upward of fifty members in that House who always voted in the train of the noble lord in the blue ribbon,[64] but who reprobated and condemned, out of the House, the measures they had supported and voted for in it." Mr. T. Pitt even instanced "the present possession of office by Lord North as an indubitable proof of the enormous influence of the crown." It was not strange that Lord North opposed a resolution supported by such arguments with all the power of the government, basing his own opposition chiefly on the wisdom "of maintaining the rule long since established by Parliament, never to vote abstract propositions." But he presently saw that he was in a minority, and was forced to be content with adopting and carrying an amendment of Mr. Dundas, one of the members for Edinburgh, who flattered himself that by the insertion of _now_ he converted a general assertion into a temporary declaration, which might at a future time be disavowed as no longer applicable. A majority of eighteen[65] affirmed the resolution; and when the mover followed it up by a second, declaring that "it is competent to this House to examine into and to correct abuses in the expenditure of the civil list revenues, as well as in every other branch of the public revenue, whenever it shall seem expedient to the wisdom of this House to do so," though the minister, with what was almost an appeal _ad misericordiam_, "implored the House not to proceed," he did not venture to take a division, and that resolution also, with one or two others designed to give instant effect to them, were adopted and reported by the committee to the House in a single evening.[66] The first resolution did, in fact, embody a complaint, or at least an assertion, which the Rockingham party had constantly made ever since the close of the Marquis's first administration. In a speech which he had made only a few weeks before,[67] Lord Rockingham himself had declared that "it was early in the present reign promulgated as a court axiom that the power and influence of the crown alone was sufficient to support any set of men his Majesty might think proper to call to his councils." And Burke, in his "short account" of his administration of 1765, had not only imputed both its formation and its dismissal to the "express request" and "express command of their royal master," but in the sentence, "they discountenanced and, it is to be hoped, forever abolished, the dangerous and unconstitutional practice of removing military officers for their votes in Parliament," condemned with unmistakable plainness some acts of the preceding ministry which were universally understood to have been forced upon it by the King himself. General Conway had been deprived of the colonelcy of his regiment; Lord Rockingham himself, with several other peers, had been dismissed from Lord-lieutenancies, as a punishment for voting against the ministry; such dismissals being a flagrant attempt to put down all freedom of debate in Parliament, which of all its privileges is the one most essential to its usefulness, if not to its very existence. But, as Burke said, the practice had been abandoned, and the first resolution, therefore, as Lord North said, involved no practical result. It is the second resolution that confers a constitutional character and importance on this debate. And it is not too much to say that no vote of greater value had been come to for many years. It might have been considered almost as the assertion of a truism included in the power of granting supplies, to declare that the Parliament has the right and authority to examine into and correct abuses in the expenditure, if it had not been denied by more than one speaker on the ministerial side, though not by the Prime-minister himself. But that denial made the assertion of the right an imperative duty; for certainly the exclusive right of authorizing a levy of money would lose half its value, if unaccompanied by the other right of preventing the waste of the revenue thus raised. It may likewise be said that another principle of the parliamentary constitution is, by implication, contained in Mr. Dunning's second resolution, and that the words, "it is competent to this House to examine into and to correct abuses in the expenditure," were meant to imply a denial of the competency of the other House to institute, or even to share in, such an examination. Even if that were the object of its framer, it only coincided with the view of the peers themselves, a very considerable majority[68] of whom had, a few weeks before, rejected a motion made by Lord Shelburne for the appointment of "a committee of members of both Houses to examine without delay into the public expenditure," principally on the ground urged by the Secretary of State, Lord Stormont, and by several other peers, that "to inquire into, reform, and control the public expenditure" would be an improper interference with the privileges of the Commons; the Chief-justice, Lord Mansfield, even going the length of warning his brother peers that such interference might probably lead the Commons "to dispute in their turn the power of judicature in the last resort exercised by the peers." Lord Camden, on the contrary, affirmed, as a proposition which "no noble lord present would deny, that that House had a right to inquire so far as the disposal of public moneys came under their cognizance as a deliberative body." And in the Lower House itself, Burke, in his speech in favor of his Bill for Economical Reform, went even farther than Lord Camden, and blamed the House of Lords for rejecting Lord Shelburne's motion on such a ground. "They had gone," he said, "farther in self-denial than the utmost jealousy of the Commons could have required. A power of examining accounts, of censuring, correcting, and punishing the Commons had never, that he knew of, thought of denying to the Lords. It was something more than a century ago that the Commons had voted the Lords a useless body. They had now voted themselves so." And it would seem that the Lords themselves, to a certain extent, retracted this, their self-denying vote, when, before the end of the same session, they discussed Burke's Bill for Economical Reform, and passed it, though it was a money-bill, "containing extraneous enactments," and as such contravened one of their own standing orders which had been passed in the beginning of Queen Anne's reign, when the system of "tacking," as it was called, had excited great discontent, which was not confined to themselves. The propriety of rejecting the bill on that ground was vigorously urged by the only two lawyers who took part in the debate, the Chancellor, Lord Thurlow, and Lord Loughborough, whose object was avowedly thus to give a practical proof that the Lords "had not voted themselves useless." But even those who disregarded their advice fully asserted the right of the peers "to exercise their discretion as legislators." We have noticed this matter on a previous occasion. The privilege claimed by the Commons, both as to its origin and its principle, has been carefully examined by Hallam, who has pointed out that in its full exclusiveness it is not older than Charles II., since the Convention Parliament of 1660 "made several alterations in undoubted money-bills, to which the Commons did not object."[69] And, though his attachment to Whig principles might have inclined him to take their part in any dispute on the subject, he nevertheless thinks that they have strained both "precedent and constitutional analogy" in their assertion of this privilege, which is "an anomaly that can hardly rest on any other ground of defence than such a series of precedents as establish a constitutional usage." The usage which for two centuries was established in this case by the good-sense of both parties clearly was, that the Lords could never originate a money-bill, nor insert any clause in one increasing or even altering the burden laid by one on the people, but that they were within their right in absolutely rejecting one. But such a right has a tendency to lapse through defect of exercise; and we shall hereafter see that "the disposition to make encroachments," which in this matter Hallam imputes to the Commons, has led them in the present reign to carry their pretensions to a height which at a former period had been practically ignored by the one House, and formally disclaimed by the other. It may be remarked that Mr. Dunning's success in carrying his first resolution did in itself, to a certain extent, disprove the truth of that resolution, since, if the influence of the crown had been such as he represented it, it must have been sufficient to insure its rejection. But that resolution, and a new statute, of which in a previous session he had been one of the principal promoters, are reckoned by Lord Stanhope as among the chief causes of the disgraceful riots of 1780. In the summer of 1778 he had seconded and supported with great eloquence the repeal of some of the penal statutes against the Roman Catholics which had been passed in the reign of William III. It was the first blow at that system of religious intolerance which for nearly a century had been one of the leading principles, as it had been also the chief disgrace, of the constitution; and it was passed with scarcely any opposition by both Houses. As, however, the statute which it repealed had been enacted before the Scotch Union, the repeal did not extend to Scotland, and it was necessary, therefore, to bring in a separate measure for that kingdom. But the intelligence that such a proceeding was in contemplation excited great wrath among the Scotch Presbyterians, who, in the hope of defeating it, established a Protestant Association for the defence of what they called the Protestant interest, and elected as its president Lord George Gordon, a young nobleman whose acts on more than one occasion gave reason to doubt the soundness of his intellect. Against any relaxation whatever of the restrictions on the Roman Catholics the Association sent up petitions to the House and to the King, couched in language the wildness of which was hardly consistent with the respect due to Parliament or to the sovereign. Apparently in the hope of mitigating its opposition, the Houses the next year passed an act, similar in principle, to relax some of the restrictions still imposed on Protestant dissenting ministers by some of the subscriptions which were required of them. But, as in the reign of Charles II., the Presbyterian hatred of the Roman Catholics was too uncompromising to be appeased in such a manner. And when Lord George found the House of Commons itself acknowledging the danger with which the constitution was threatened by the influence of the crown, he saw in their vote a justification for all his alarms, since he had adopted as one of his most settled opinions the belief that George III. was himself a Papist at heart; and, under the influence of this strange idea, he drew up a petition to Parliament which he invited all the members of the Association to accompany him to present. His summons was received with enthusiasm by his followers. The number who, in obedience to it, mustered in St. George's Fields, which he had appointed as the place of rendezvous, was not reckoned by any one at less than fifty thousand, and some calculations even doubled that estimate. Whatever the number may originally have been, it was speedily swelled by the junction of large bands of the worst characters in the metropolis, who soon began to display their strength by every kind of outrage. They commenced by attacking some of the Roman Catholic chapels, which they burnt; and, their audacity increasing at the sight of their exploits, they proceeded to assault the houses of different members of Parliament who had voted for the measures which had offended them. Because the Chief-justice, Lord Mansfield, had lately presided at a trial where a Roman Catholic had been acquitted, they sacked and burnt his house, and tried to murder himself. The magistrates, afraid of exposing themselves to the fury of such a mob, kept for the most part out of the way; and though the troops had been put under arms, and several regiments from the rural districts had been brought up to London in haste, the military officers were afraid to act without orders. Left to work their pleasure almost without resistance, the rioters attacked the different prisons, burnt Newgate and released all the prisoners, and made more than one attack on the Bank of England, where, however, fortunately the guard was strong enough to repel them. But still no active measures were taken to crush the riot. The belief was general that the soldiers might not act at all, or, at all events, not fire on rioters, till an hour after the Riot Act had been read and the mob had been warned to disperse; and no magistrate could be found to brave its fury by reading it. There seemed no obstacle to prevent the rioters from making themselves masters of the whole capital, had it not been for the firmness of the King himself, who, when all the proper authorities failed, showed himself in fact as well as in name the Chief Magistrate of the kingdom.[70] He summoned a Privy Council, and urged the members to adopt instant measures of repression; and, when some of the ministers seemed to waver, he put the question himself to the Attorney-general whether the interpretation put on the Riot Act, which seemed to him inconsistent with common-sense, were justified by the law. Wedderburn unhesitatingly replied that it was not; that "if a mob were committing a felony, as by burning dwelling-houses, and could not be prevented by other means, the military, according to the law of England, might and ought to be immediately ordered to fire upon them, the reading of the Riot Act being wholly unnecessary under such circumstances."[71] The King insisted on this opinion being instantly acted on; a proclamation was issued, and orders were sent from the Adjutant-general's office that the soldiers were to act at once without waiting for directions from the civil magistrates. A few hours now sufficed to restore tranquillity. The Chief-justice, in his place in the House of Lords, subsequently declared Wedderburn's opinion, and the orders given in reliance upon it, to be in strict conformity with the common law, laying down, as the principle on which such an interpretation of the law rested, the doctrine that in such a case the military were acting, "not as soldiers, but as citizens; no matter whether their coats were red or brown, they were legally employed in preserving the laws and the constitution;"[72] and Wedderburn, who before the end of the year became Chief-justice of the Common Pleas, repeated the doctrine more elaborately in a charge from the Bench. It was a lesson of value to the whole community. It was quite true that the constitution placed the army in a state of dependence on the civil power. But, when that doctrine was so misunderstood as to be supposed to give temporary immunity to outrage, it was most important that such a misconstruction should be corrected, and that it should be universally known that military discipline does not require the soldier to abstain from the performance of the duty incumbent on every citizen, the prevention of crime. Notes: [Footnote 33: It is worth while to preserve the amount, if for no other reason, for the contrast that the expenditure and resources of the kingdom a hundred years ago present to those of the present day. The supply required in 1764 was in round numbers £7,712,000; in 1755, before the war broke out, £4,073,000, and even that included a million for the augmentation of the army and navy. In 1761, when the war was at its height, the sum voted was £19,616,000.] [Footnote 34: The report in the "Parliamentary History," xvi., 37, says: "This act (the Stamp Act) passed the Commons almost without debate; two or three members spoke against it, but without force or apparent interest, except a vehement harangue from Colonel Barré (date, March 6, 1765)."] [Footnote 35: Lord Stanhope ("History of England," v., 131) quotes a letter of Dr. Franklin to one of his friends in America, in which, after deploring the impossibility of preventing the act from being passed, he expresses a hope that "frugality and industry will go a great way toward indemnifying us." And he complied with Mr. Grenville's request to select a person to act as Distributor of Stamps in Pennsylvania whom he thought likely to be generally acceptable.] [Footnote 36: These statements and arguments of Franklin are taken from different parts of his examination before the House of Commons, as preserved in the "Parliamentary History," xvi., 137-160.] [Footnote 37: In the Assembly of Virginia, one of the members--Patrick Henry--after declaiming with bitterness against the supposed arbitrary measures of the present reign, exclaimed, "Caesar had his Brutus, Charles I. his Oliver Cromwell, and George III.--" A cry of "Treason!" was uttered. The Speaker called Mr. Henry to order, and declared he would quit the chair unless he were supported by the House in restraining such intemperate speeches.--Adolphus, _History of England_, i., 188.] [Footnote 38: On this point the law has been affirmed by a judge of high reputation to be still what Lord Rockingham and his colleagues asserted. In 1868, on the trial of Governor Eyre for an indictment arising out of disturbances in Jamaica, Judge Blackburne laid it down "that, although the general rule is that the Legislative Assembly has the sole right of imposing taxes in the colony, yet, when the Imperial Legislature chooses to impose taxes, according to the rule of English law they have a _right_ to do it."] [Footnote 39: See his speech on American taxation in April, 1774.] [Footnote 40: The chief divisions were: in the Commons, 275 to 167; in the Lords, 105 to 71.] [Footnote 41: "History of England," vol. v., c. xlv., p. 218, ed. 1862.] [Footnote 42: "Lives of the Chancellors," c. cxliii., life of Lord Camden.] [Footnote 43: Every political student will recollect Burke's description of it as "a cabinet so variously inlaid, such a piece of diversified mosaic, such a tessellated pavement without cement--here a bit of black stone, there a bit of white--patriots and courtiers, King's friends and republicans, Whigs and Tories, treacherous friends and open enemies," etc.--_Speech on American Taxation_.] [Footnote 44: In a debate in the year 1776, on some measures adopted for the conduct of the war, the Duke of Grafton said: "In that year (1767), when the extraordinary expenses incurred on account of America were laid before the House of Commons, the House rose as one man and insisted that that country should contribute to the burdens brought on by the military establishment there, and a motion was made for bringing in a bill for that purpose. I strenuously opposed the measure, as big with the consequences it has since, unfortunately, produced. I spoke to my friends upon the occasion, but they all united in the opinion that the tide was too strong to expect either to stem or turn it, so as to prevent whatever might be offered in that shape from passing into a law. Finding that all my efforts would be vain, I was compelled to submit, but was resolved, as far as lay in my power, to prevent the effect; and, while I gave way, to do it in such a manner as would cause the least harm. I accordingly proposed the tea-duty as the most palatable; because, though it answered the main purpose of those with whom taxation was a favorite measure, it was doing America an immediate benefit, for I procured the shilling a pound duty to be taken off, and threepence to be laid on in lieu thereof; so that, in fact, it was ninepence a pound saved to America. However, the attempt was received in America as I expected it would be--it immediately caused disturbances and universal dissatisfaction."--_Parliamentary History_, xviii., 134.] [Footnote 45: This unpopularity had been aggravated by another measure which was among the last acts of Mr. Grenville's ministry. The Mutiny Act in the Colonies was renewed for two years at a time, and, at its renewal in the spring of 1765, a clause was added which required the Colonists to furnish the troops with "fire, candles, vinegar, salt, bedding, utensils for cooking, and liquors, such as beer, cider, and rum." The Assemblies of several States passed resolutions strongly condemning this new imposition; but, as the dissatisfaction did not lead to any overt acts of disturbance, it seems to have been unnoticed in England at the time, or the clause would probably have been repealed by Lord Rockingham; and eventually the Assembly of New York seems to have withdrawn its objections to it, presenting an address to Sir H. Moore, the Governor, in which "they declared their intention of making the required provision for the troops."--Lord E. Fitzmaurice, _Life of Lord Shelburne_, ii., 61.] [Footnote 46: The "Memoirs of Judge Livingstone" record his expression of opinion as early as 1773, that "it was intolerable that a continent like America should be governed by a little island three thousand miles distant." "America," said he, "must and will be independent." And in the "Memoirs of General Lee" we find him speaking to Mr. Patrick Henry, who in 1766 had been one of the most violent of all the denouncers of the English policy (see _ante_, p. 63), of "independence" as "a golden castle in the air which he had long dreamed of."] [Footnote 47: See the whole speech, "Parliamentary History," xvi., 853. Many of the taxes he denounced as so injurious to the British manufacturers, "that it must astonish any reasonable man to think how so preposterous a law could originally obtain existence from a British Legislature."] [Footnote 48: The division was: for the amendment, 142; against it, 204.] [Footnote 49: The words of the "preamble," on which Burke dwelt in 1774, were: "Whereas it is expedient that a revenue should be raised in your Majesty's dominions in America for making a more certain and adequate provision for defraying the charge of the administration of justice and support of civil government in such provinces where it shall be found necessary, and toward farther defraying the expenses of defending, protecting, and securing: the said dominions, be it enacted," etc.] [Footnote 50: "Memoirs and Correspondence of Jefferson." Quoted by Lord Stanhope, "History of England," vi., 14.] [Footnote 51: At Lexington, April 19, 1775.] [Footnote 52: Lord Stanhope, however, has reason on his side when he calls the words of this petition "vague and general," though "kindly and respectful;" and when he points to the language of extreme bitterness against England indulged in by Franklin at the very time that this petition was voted. He, however, expresses a belief that even then "the progress of civil war might have been arrested," which seems doubtful. But it is impossible not to agree with his lordship in condemning the refusal by the ministry to take any notice of the petition, on the ground that the Congress was a self-constituted body, with no claim to authority or recognition, and one which had already sanctioned the taking up arms against the King.--_History of England_, vi., 93, 95, 105.] [Footnote 53: It is probable, however, that the greater part of the Hanoverian soldiers were Protestants.] [Footnote 54: Lord Campbell, who, in his "Life of Lord Bathurst," asserts that the legality of the measure turns upon the just construction of the Act of Settlement, adduces Thurlow's language on this subject as "a proof that he considered that he had the privilege which has been practised by other Attorney-generals and Chancellors too, in debate, of laying down for law what best suited his purpose at the moment." It does not seem quite certain that the noble and learned biographer has not more than once in these biographies allowed himself a similar license in the description of questions of party politics.] [Footnote 55: In the debates on the subject it was stated that the number of Hanoverians quartered in the two fortresses was nineteen hundred, and the number of British troops left in them was two thousand. Moreover, as has been already remarked, though Lord Shelburne spoke of arming Roman Catholics, it is probable that the Hanoverians were mostly Protestants.] [Footnote 56: The Preliminary or Provisional Articles, as they were called, of which the Definitive Treaty was but a copy, were signed at Paris, November 30, 1782, during Lord Shelburne's administration. But the Definitive Treaty was not signed till the 3d of September of the following year, under the Coalition Ministry, which was turned out a few weeks afterward.] [Footnote 57: We shall see in a subsequent chapter that even in this reign of George III. Pitt laid down the true principles of our legislation for the colonies in his bill for the better government of Canada.] [Footnote 58: An admirably reasoned passage on the influence of the crown, especially in the reigns of the two first Hanoverian Kings, will be found in Hallam, "Constitutional History," c. xvi., vol. iii., p. 392, ed. 1832.] [Footnote 59: The "Parliamentary History" shows that he had brought forward the same motion before 1780; since Lord Nugent, who replied to him, said "the same motion had been made for some years past, and had been silently decided on." From which it seems that it was never discussed at any length till May 8, 1780.] [Footnote 60: On the division the numbers were: for the motion, 90; against it, 182.] [Footnote 61: The division in 1782 was: 161 to 141; in 1783, 293 to 149.] [Footnote 62: How systematic and open bribery was at this time is shown by an account of Sheridan's expenses at Stafford in 1784, of which the first item is--248 burgesses, paid £5 5s. each, £1302.--Moore's _Life of Sheridan_, i., 405.] [Footnote 63: "Life of Pitt," i., 359.] [Footnote 64: Lord North was a Knight of the Garter, the only commoner, except Sir R. Walpole, who received that distinction in the last century, and the latest, with the exception of Lord Castlereagh. on whom it has been conferred.] [Footnote 65: 233 to 315.] [Footnote 66: It is perhaps worth pointing out, as a specimen of the practical manner in which parliamentary business was transacted at that time, that this great debate--in which (the House being in committee) Mr. Dunning himself spoke three times, and Lord North, Mr. T. Pitt, Mr. Fox, the Speaker (Sir F. Norton), the Attorney-general, General Conway, Governor Pownall, the Lord-advocate, and several other members took part--was concluded by twelve o'clock.] [Footnote 67: February 8, 1780, on Lord Shelburne's motion for an inquiry into the public expenditure.--_Parliamentary History_, xx., 1346.] [Footnote 68: 101 to 55.] [Footnote 69: "Constitutional History," iii., 43.] [Footnote 70: His language is said to have been that "there was at all events one Magistrate in the kingdom who would do his duty."--Lord Stanhope, _History of England_, vii., 48.] [Footnote 71: "Lives of the Lord Chancellors," c. clxvii.] [Footnote 72: Lord Stanhope's "History of England," vii, 56.] CHAPTER IV. Changes of Administration.--The Coalition Ministry.--The Establishment of the Prince of Wales.--Fox's India Bill.--The King Defeats it by the Agency of Lord Temple.--The Ministry is Dismissed, and Succeeded by Mr. Pitt's Administration.--Opposition to the New Ministry in the House of Commons.--Merits of the Contest between the Old and the New Ministry.--Power of Pitt.--Pitt's India Bill.--Bill for the Government of Canada.--The Marriage of the Prince of Wales to Mrs. Fitzherbert.--The King becomes Deranged.--Proposal of a Regency.--Opinions of Various Writers on the Course adopted.--Spread of Revolutionary Societies and Opinions.--Bills for the Repression of Sedition and Treason.--The Alien Act.--The Traitorous Correspondence Act.--Treason and Sedition Bills.--Failure of some Prosecutions under them. The occurrences of the next year brought the question of the influence of the crown into greater prominence. Lord Rockingham's administration, unfortunately, came to a premature termination by his death at the beginning of July. With a strange arrogance, Fox claimed the right of dictating the choice of his successor to the King, making his pretensions the more unwarrantable by the character of the person whom he desired to nominate, the Duke of Portland, who, though a man of vast property and considerable borough influence, was destitute of ability of any kind, and had not even any of that official experience which in some situations may at times compensate or conceal the want of talent.[73] The King preferred Lord Shelburne, a statesman whose capacity was confessedly of a very high order, who had more than once been Secretary of State,[74] and who had been recognized as the leader of what was sometimes called the Chatham section of the Whigs, ever since the death of the great Earl. Indeed, if George III. had been guided by his own wishes and judgment alone, he would have placed him at the Treasury, in preference to Lord Rockingham, three months before. But, during the last three months, jealousies had arisen between him and Fox, his colleague in office, who charged him with concealing from him the knowledge of various circumstances, the communication of which he had a right to require. It was more certain that on one or two points connected with the negotiations with the United States there had been divisions between them, and that the majority of the cabinet had agreed with Lord Shelburne. Lord Shelburne, therefore, became Prime-minister,[75] and Fox, with some of his friends, resigned; Fox indemnifying himself by a violent philippic against "those men who were now to direct the counsels of the country," and whom he proceeded to describe as "men whom neither promises could bind nor principles of honor could secure; who would abandon fifty principles for the sake of power, and forget fifty promises when they were no longer necessary to their ends; who, he had no doubt, to secure themselves in the power which they had by the labor of others obtained, would strive to strengthen it by any means which corruption could procure."[76] Fox at once went into what even those most disposed to cherish his memory admit to have been a factious opposition. He caballed with the very men to whom he had hitherto been most vehemently opposed for the sole object of expelling Lord Shelburne from office. And when, at the beginning of the session of 1783, the merits of the preliminary articles of peace which had been provisionally concluded with the United States came under discussion, though the peers approved of them, in the House of Commons he defeated the ministers in two separate divisions,[77] and thus rendered their retention of office impossible. He had gained this victory by uniting with Lord North and a portion of the Tory party whom, ever since his dismissal from office in 1774, he had been unwearied in denouncing, threatening Lord North himself with impeachment. And he now used it to compel the King to intrust the chief office in the government to the very man whom his Majesty had refused to employ in such an office six months before. The transactions of the next twelve months exhibit in a striking light more than one part of the practical working of our monarchical and parliamentary constitution, not only in its correspondence with, but, what is more important to notice, in its occasional partial deviations from, strict theory. The theory has sometimes been expressed in the formula, "The King reigns, but does not govern." But, like many another terse apophthegm, it conveys an idea which requires some modification before it can be regarded as an entirely correct representation of the fact; and the King himself, especially if endowed with fair capacity and force of character, imbued with earnest convictions, and animated by a genuine zeal for the honor and welfare of his kingdom, will be likely to dwell more on the possible modifications than on the rigid theory. Even those who insist most on the letter of the theory will not deny that, if the King has not actual power, he has at least great influence; and the line between authority and influence is hard to draw. One of George the Third's earliest ministers had explained to his Majesty that the principle of the constitution was, "that the crown had an undoubted right to choose its ministers, and that it was the duty of subjects to support them, unless there were some very strong and urgent reasons to the contrary."[78] And such a doctrine was too much in harmony with the feelings of George III. himself not to be cordially accepted. For George III. was by no means inclined to be a _Roi fainéant_. No sovereign was ever penetrated with a more conscientious desire to do his duty to his people. Conscious, perhaps, that his capacity was rather solid than brilliant, he gave unremitting attention to the affairs of the nation in every department of the government; and, perhaps not very unnaturally, conceived that his doing so justified him, as far as he might be able, in putting a constraint on his ministers to carry out his views. Thus, he had notoriously induced Lord North to persevere in the late civil war in America long after that minister had seen the hopelessness of the contest; and it was, probably, only the knowledge of the strength of his feelings on that subject, and of his warm attachment to that minister, that caused the Parliament so long to withstand all the eloquence of the advocates of peace, and the still stronger arguments of circumstances. He might fairly think that he had now greater reason to adhere to his own judgment; for Fox's recommendation of the Duke of Portland in preference to Lord Shelburne was an act not only of unwarrantable presumption, but of inconceivable folly, since there was no comparison between the qualifications of the two men; and the coalition by which, six months afterward, he had, as it were, revenged himself for the rebuff, and had driven Lord Shelburne from office, was, as the King well knew, and as even Fox's own friends did not conceal from themselves, almost universally condemned out-of-doors.[79] To this combination, therefore, his Majesty tried every expedient to escape from yielding. And when Pitt's well-considered and judicious refusal of the government left him no alternative but that of submission to Fox's dictation, it would hardly have been very unnatural if his disposition and attitude toward a ministry which had thus forced itself upon him had been those attributed to him by Lord John Russell, of "an enemy constantly on the watch against it."[80] But for some time that was not the impression of the ministers themselves. In July, when they had been in office more than three months, Fox admitted that he had never behaved toward them as if he were displeased with them, and that he had no project of substituting any other administration for the present one.[81] And his temperate treatment of them was the more remarkable, because a flagrant blunder of Burke (who filled the post of Paymaster), in reinstating some clerks who had been dismissed by his predecessor for dishonesty, had manifestly weakened the ministry in the House of Commons;[82] while in another case, in which the King had clearly in no slight degree a personal right to have his opinion consulted and his wishes accepted by them as the guide for their conduct, the establishment to be arranged for the Prince of Wales, whose twenty-first birthday was approaching, Fox persuaded the Parliament to settle on the young Prince an allowance of so large an amount that some even of his own colleagues disliked it as extravagant;[83] while the King himself reasonably disapproved both of the amount and of the mode of giving it, the amount being large beyond all precedent, and the fact of its being given by Parliament rendering the Prince entirely independent of his parental control, of which his conduct had given abundant proof that he stood greatly in need. That he presently changed his line of behavior toward them was caused by their introduction of a bill which he regarded as aimed in no small degree at his own prerogative and independence--the celebrated India Bill, by which, in the November session, Fox proposed to abrogate all the charters which different sovereigns had granted to the East India Company, to abolish all vested rights of either the Company or individuals, and to confer on a board of seven persons, to be named by Parliament, the entire administration of all the territories in any way occupied by the Company. It was at once objected to by the Opposition in the House of Commons, now led by Mr. Pitt, as a measure thoroughly unconstitutional, on the twofold ground that such an abrogation of formally granted charters, and such an extinction of vested rights, was absolutely without precedent; and also that one real, if concealed, object of the bill was to confer on the ministers who had framed and introduced it so vast an amount of patronage as would render them absolute masters of the House of Commons, and indirectly, therefore, of the King himself, who would be practically disabled from ever dismissing them. That such a revocation of ancient charters, and such an immovable establishment of an administration, were inconsistent with the principles of the constitution, was not a position taken up by Pitt in the heat of debate, but was his deliberate opinion, as may be fairly inferred from his assertion of it in a private letter[84] to his friend the Duke of Rutland. It may, however, be doubted whether the epithet "unconstitutional" could be properly applied to the bill on either ground. There is, indeed, a certain vagueness in the meaning, or at all events in the frequent use of this adjective. Sometimes it is used to imply a violation of the provisions of the Great Charter, or of its later development, the Bill of Rights; sometimes to impute some imagined departure from the principles which guided the framers of those enactments. But in neither sense does it seem applicable to this bill. To designate the infringement or revocation of a charter by such a description would be to affirm the existence of a right in the sovereign to invest a charter, from whatever motive it may originally have been granted, with such a character of inviolability or perpetuity that no Parliament should, on ever such strong grounds of public good, have the power of interfering with it. And to attribute such a power to the crown appears less consistent with the limitations affixed to the royal prerogative by the constitution, than to regard all trusts created by the crown as subject to parliamentary revision in the interests of the entire nation. On the second ground the description seems even less applicable. An arrangement of patronage is a mere matter of detail, not of principle. For the minister to propose such an arrangement as should secure for himself and his party a perpetual monopoly of power and office might be grasping and arrogant; for Parliament (and Parliament consists of the sovereign and the peers, as well as of the House of Commons) to assent to such an arrangement might be short-sighted and impolitic; but it is not clear that either the minister in proposing such an enactment, or the Parliament in adopting it, would be violating either the letter or the spirit of the constitution. Every member of the Governing Board was to be appointed by the Parliament itself; and, though unquestionably Fox would have the nomination, and though he could reckon on the support of the majority in the House of Commons for those whom he might select, still it was a strictly constitutional machinery that he was putting in motion. A measure, however, may be very objectionable without being unconstitutional, and such a view of the India Bill the progress of the debates in the House of Commons disposed the King to take of it. In the House of Peers Lord Thurlow described the bill as one to take the crown off his head and place it on that of Mr. Fox; and, even without adopting that description to its full extent, the King might easily regard the bill as a very unscrupulous attempt to curtail his legitimate authority and influence. He became most anxious to prevent the bill from being presented to him for his royal assent. And it was presently represented to him that the knowledge of his desire would probably induce the Lords to reject it. Among the peers who had attacked the bill on its first introduction into their House was Earl Temple, whose father had taken so prominent a part in the negotiations for the formation of a new ministry in 1765, and who had himself been Lord-lieutenant of Ireland under Lord Shelburne's administration. But he had not thought it prudent to divide the House against its first reading, and felt great doubts as to his success in a division on the second, unless he could fortify his opposition by some arguments as yet untried. He had no difficulty in finding a willing and effective coadjutor. Since the retirement of Lord Bute from court, no peer had made himself so personally acceptable to the King as Lord Thurlow, who had been Lord Chancellor during the last four years of Lord North's administration, and, in consequence, as it was generally understood, of the earnest request of George III., had been allowed to retain the seals by Lord Rockingham, and afterward by Lord Shelburne. What special attraction drew the King toward him, unless it were some idea of his honesty and attachment to the King himself--on both of which points subsequent events proved his Majesty to be wholly mistaken--it is not very easy to divine; but his interest with the King at this time was notorious, and equally notorious was the deep resentment which he cherished against Fox and Lord North, of whom, as he alleged, the former had proscribed and the latter had betrayed him. To him, therefore, Lord Temple now applied for advice as to the best mode of working on the King's mind, and, with his assistance, drew up a memorial on the character of the India Bill, on its inevitable fruits if it should pass (which it described as an extinction of "more than half of the royal power, and a consequent disabling of his Majesty for the rest of his reign"), and on the most effectual plan for defeating it; for which end it was suggested that his Majesty should authorize some one to make some of the Lords "acquainted with his wishes" that the bill should be rejected.[85] George III. eagerly adopted the suggestion, and drew up a brief note, which he intrusted to Lord Temple himself, and which stated that "his Majesty allowed Earl Temple to say that whoever voted for the India Bill was not only not his friend, but would be considered by him as his enemy. And, if these words were not strong enough, Earl Temple might whatever words he might deem stronger and more to the purpose."[86] Lord Temple lost no time in availing himself of the permission thus granted him; and, as it was by no means his object to keep the transaction secret, his conduct was made the subject of severe comment by the Prime-minister himself the next time that the bill was mentioned in the Upper House. The Duke of Portland, indeed, professed to have learned it only from common report, and to hope that the report was unfounded, since, were it true, "he should be wanting in the duty he owed to the public as a minister if he did not take the opportunity of proposing a measure upon it to their lordships that would prove that they felt the same jealousy, the same detestation, the same desire to mark and stigmatize every attempt to violate the constitution as he did." Lord Temple, in reply, abstained from introducing any mention of the King's opinions or wishes, but avowed plainly that he had used his privilege as a peer to solicit an interview with his Majesty, and that at that interview "he had given his advice. What that advice had been he would not then say; it was lodged in the breast of his Majesty, nor would he declare the purport of it without the royal consent, or till he saw a proper occasion. But, though he would not declare affirmatively what his advice to his sovereign was, he would tell their lordships negatively what it was not. It was not friendly to the principle and objects of the bill."[87] The debate lasted till near midnight. Of the speakers, a great majority declared against the bill; and, on the division, it was rejected by a majority of nineteen.[88] This took place on the 15th of December. On the 18th, as the ministers had not resigned--not regarding a single defeat in the Upper House as a necessary cause for such a step--the King sent messengers to them to demand their resignation, and the next day it was publicly announced in the House of Commons that Pitt had accepted the office of Prime-minister. But Fox, who had anticipated the dismissal of himself and his colleagues, was by no means inclined to acquiesce in it, or to yield without a struggle; and on the 17th one of his partisans in the House of Commons, Mr. Baker, one of the members for Hertfordshire, brought forward some resolutions on the subject of the late division in the House of Lords. He professed to rest them solely on rumors, but he urged that "it was the duty of that House to express its abhorrence even of that rumor," since by such an action as was alleged "that responsibility of ministers which was the life of the constitution would be taken away, and with it the principal check that the public had upon the crown." And he urged "the members of that House, as the guardians of the constitution, to stand forward and preserve it from ruin, to maintain that equilibrium between the three branches of the Legislature, and that independence without which the constitution could no longer exist," and with this view to resolve "that to report any opinion, or pretended opinion, of his Majesty upon any bill or other proceeding depending in either House of Parliament, with a view to influence the votes of the members, is a high crime and misdemeanor, derogatory to the honor of the crown, a breach of the fundamental privileges of Parliament, and subversive of the constitution of the country." It was opposed by Pitt, chiefly on the ground that Mr. Baker only based the necessity for such a resolution on common report, which he, fairly enough, denied to be a sufficient justification of it; and partly on the undoubted and "inalienable right of peers, either individually or collectively, to advise his Majesty, whenever they thought the situation of public affairs made such a step an essential part of their duty." But it was supported by Lord North as "necessary on constitutional principles," since the acts so generally reported and believed "affected the freedom of debate;" and by Fox, who declared that the action which was reported, if true, "struck at the great bulwark of our liberties, and went to the absolute annihilation, not of our chartered rights only, but of those radical and fundamental ones which are paramount to all charters, which were consigned to our care by the sovereign disposition of Nature, which we cannot relinquish without violating the most sacred of all obligations, to which we are entitled, not as members of society, but as individuals and as men; the right of adhering steadily and uniformly to the great and supreme laws of conscience and duty; of preferring, at all hazards and without equivocation, those general and substantial interests which members have sworn to prefer; of acquitting themselves honorably to their constituents, to their friends, to their own minds, and to that public whose trustees they were, and for whom they acted." He avowed his conviction that rumor in this instance spoke truth, and, affirming that "the responsibility of ministers is the only pledge and security the people of England possesses against the infinite abuses so natural to the exercise of royal powers," argued that, if "this great bulwark of the constitution were once removed, the people would become in every respect the slaves and property of despotism. This must be the necessary consequence of secret influence." He argued that the sole distinction between an absolute and a limited monarchy was that the sovereign in one is a despot, and may do as he pleases, but that in the other he is himself subjected to the laws, and consequently is not at liberty to advise with any one in public affairs who is not responsible for that advice, and that the constitution has clearly directed his negative to operate under the same wise restrictions. Mr. Baker's resolution was carried by a large majority; but, as we have seen, did not deter the King from dismissing the ministry. The conduct of George III. in this transaction has been discussed by writers of both parties with such candor that the Tory historian, Lord Stanhope, while evidently desirous to defend it by implication, passes a slight censure on it in the phrase that "the course pursued by the King was most unusual, and most extreme, and most undesirable to establish as a precedent;"[89] while, on the other hand, so rigid a Whig as Lord Campbell urges in his favor "that if it be ever excusable in a King of England to cabal against his ministers, George III. may well be defended for the course he now took, for they had been forced upon him by a factious intrigue, and public opinion was decidedly in his favor."[90] But to those who regard not the excuse which previous provocation may be conceived in some degree to furnish to human infirmity, but only the strict theory and principle of the constitution on which the doctrine of the responsibility of the ministers and the consequent irresponsibility of the sovereign rests, Lord Campbell's conditional justification for the communication made through Lord Temple will hardly appear admissible. We cannot be sure how far Mr. Grenville's "Diary" is to be trusted for transactions in which he was not personally concerned, or for conversations at which he was not present; but in giving an account[91] of some of the occurrences of the spring of 1766, while Lord Rockingham was Prime-minister, we find him relating a conversation between the King and Lord Mansfield on the ministerial measure for conciliating the American Colonies by the repeal of the Stamp Act, combined, however, with an assertion of the _right_ to tax. "He (Lord Mansfield) took notice of the King's name having been bandied about in a very improper manner; to which the King assented, saying he had been very much displeased at it, as thinking it unconstitutional to have his name mentioned as a means to sway any man's opinion in any business which was before Parliament; and that all those who approached him knew that to be his sentiment. Lord Mansfield said he differed from his Majesty in that opinion, for that, though it would be unconstitutional to endeavor by his Majesty's name to carry questions in Parliament, yet where the lawful rights of the King and Parliament were to be asserted and maintained, he thought the making his Majesty's opinion in support of those rights to be known was very fit and becoming." The line here alleged to have been drawn by the great Chief-justice, between proclaiming the King's opinion in support of rights, but withholding it in the case of measures, is, perhaps, too fine to be perceptible by ordinary intellects. But however the King may have understood the judge, it is clear that the doctrine thus asserted does not justify, but condemns, such an act as the communication of the King's opinion and wishes in the case under consideration. If it "would be unconstitutional to endeavor by his Majesty's name to carry questions in Parliament," it must be at least equally so to use his name to defeat them. And the case is infinitely stronger, if the measure to be defeated be one which has been introduced by his ministers. For there can be no doubt whatever that, so long as they are his ministers, they are entitled to his full and complete support on every question; alike in their general policy and on each separate measure. When he can no longer give them that support, which the very act of conferring their offices on them promised them, his only legitimate and becoming course is to dismiss them from their offices, and to abide the judgment of Parliament and the nation on that act. Thus William IV. acted in the autumn of 1834; and thus George III. himself acted at the end of the month of which we are speaking. But to retain them in their offices, and to employ an unofficial declaration of his dissent from them to defeat their policy, is neither consistent with the straightforward conduct due from one gentleman to another, nor with the principle on which the system of administration, such as prevails in this country, is founded. As has been already mentioned, the King at once dismissed the Coalition Ministry. Mr. Pitt accepted the conduct of affairs, and by so doing accepted the responsibility for all the acts of the King which had conduced to his appointment. Lord John Russell, who in his "Memorials and Correspondence of Fox" has related and examined the whole transaction at considerable though not superfluous length, while blaming the prudence, and in some points the propriety, of Fox's conduct, at the same time severely censures Pitt as "committing a great fault in accepting office as the price of an unworthy intrigue," and affirms that "he and his colleagues who accepted office upon the success of this intrigue placed themselves in an unconstitutional position."[92] This seems to be a charge which can hardly be borne out. In dismissing his former ministry, the King was clearly acting within his right; and, if so, Pitt was equally within his in undertaking the government. The truer doctrine would seem to be, that, in so undertaking it, he assumed the entire responsibility for the dismissal of his predecessors,[93] and left it to the people at large, by the votes of their representatives, to decide whether that dismissal were justified, and whether, as its inevitable consequence, his acceptance of office were also justified or not. The entire series of transactions, from the meeting of Parliament in November, 1783, to its dissolution in the following March, may be constitutionally regarded as an appeal by the King from the existing House of Commons to the entire nation, as represented by the constituencies; and their verdict, as is well known, ratified in the most emphatic manner all that had been done. And we may assert this without implying that, if the single act of empowering Lord Temple to influence the peers by the declaration of the King's private feeling had been submitted by itself to the electors, they would have justified that. The stirring excitement of the three months' contest between the great rivals led them to pronounce upon the transaction as a whole, and to leave unnoticed what seemed for the moment to be the minor issues--the moves, if we may borrow a metaphor from the chess-table, which opened the game; and it may be observed that, though, on the 17th of December, Pitt resisted Mr. Baker's resolution with his utmost energy, in the numerous debates which ensued he carefully avoided all allusion to Lord Temple's conduct, or to the measure which had led to the dismissal of his predecessors, farther than was necessary for the explanation of the principles of his own India Bill. It may even be surmised that, if he had been inclined to recognize Lord Temple's interference as warrantable, the breach between that peer and himself, which occurred before the end of the week, would not have taken place, since it seems nearly certain that the cause of that breach was a refusal on the part of Pitt to recommend his cousin for promotion in the peerage, a step which, at such a moment, would have had the appearance of an approval of his most recent deed,[94] but which he could hardly have refused, if it had been done with his privity. The battle, as need hardly be told, was first fought among the representatives of the people in the House of Commons; for there was only one occasion on which the opinion of the Lords was invited, when they declared in favor of Pitt by a decisive majority.[95] But in the Lower House the contest was carried on for more than two months with extraordinary activity and ability, by a series of resolutions and motions brought forward by the partisans of the coalition, and contested by the youthful minister. In one respect the war was waged on very unequal terms, Pitt, who had been but three years in Parliament, and whose official experience could as yet only be counted by months, having to contend almost single-handed against the combined experience and eloquence of Lord North, Fox, and Burke. Fortunately, however, for him, their own mismanagement soon turned the advantage to his side. They were too angry and too confident to be skilful, or even ordinarily cautious. The leaders on both sides made professions in one respect similar; they both alike denied that a desire of office influenced either their conduct or their language (a denial for which Pitt's refusal of the Treasury, a year before, gained him more credit than could be expected by Fox after his coalition with Lord North), and both alike professed to be struggling for the constitution alone, for some fundamental principle which each charged his antagonist with violating; Fox on one occasion even going so far as, in some degree, to involve the King himself in his censures, declaring not only that "the struggle was, in fact, one between Pitt himself and the constitution," but that it was also one "between liberty and the influence of the crown," and "between prerogative and the constitution;" and that "Pitt had been brought into power by means absolutely subversive of the constitution."[96] But no act of which he thus accused the minister or the King showed such a disregard of the fundamental principle of the constitution of Parliament as was exhibited by Fox himself when, in the very first debate after the Christmas recess, he called in question that most undoubted prerogative of the crown to dissolve the Parliament, and, drawing a distinction which had certainly never been heard of before, declared that, though the King had an incontestable right to dissolve the Parliament after the close of a session, "many great lawyers" doubted whether he had such a right in the middle of a session, a dissolution at such a period being "a penal" one. Professing to believe that an immediate dissolution was intended, he even threatened to propose to the House of Commons "measures to guard against a step so inimical to the true interests of the country," and made a more direct attack than ever on the King himself, by the assertion of a probability that, even if Pitt did not contemplate a dissolution, his royal master might employ "secret influence" to overrule him, and might dissolve in spite of him,[97] an imputation which Lord North, with a strange departure from his customary good-humor, condescended to endorse.[98] There could be no doubt that both the doubt and the menace were of themselves distinct attacks on the constitution; and they were, moreover, singularly impolitic and inconsistent with others of the speaker's arguments, since, if the nation at large approved of his views and conduct, a dissolution--which would have placed the decision in its hands--would have been the very thing he should most have desired. On another evening, though he admitted as a principle that the sovereign had the prerogative of choosing his ministers, he not only sought to narrow the effect of that admission by the assertion that "to exercise that prerogative in opposition to the House of Commons would be a measure as unsafe as unjustifiable,"[99] but to confine the right of deciding the title of the ministers to confidence to the existing House of Commons. He accused Pitt of "courting the affection of the people, and on this foundation wishing to support himself in opposition to the repeated resolutions of the House passed in the last three weeks." Had he confined himself to urging the necessity of the ministers and the House of Commons being in harmony, even though such a mention of the House of Commons by itself were to a certain extent an ignoring of the weight of the other branches of the Legislature, he would have only been advancing a doctrine which is practically established at the present day, since there has been certainly more than one instance in which a ministry has retired which enjoyed the confidence of both the sovereign and the House of Lords, because it was not supported by a majority in the House of Commons. But when he proceeded to make it a charge against the minister that he trusted to the good-will of the people to enable him to disregard the verdict of the House of Commons, he forgot that it was only as representing the people that the House had any right to pronounce a verdict; and that, if it were true that the judgment of the people was more favorable to the minister than that of the House of Commons, the difference which thus existed was a condemnation of the existing House, and an irresistible reason for calling on the constituencies to elect another. Pitt, therefore, had no slight advantage in defending himself against so rash an assailant. "He did not shrink," he said, "from avowing himself the friend of the King's just prerogative," and in doing so he maintained that he had a title to be regarded as the champion of the people not less than of the crown. "Prerogative had been justly called a part of the rights of the people, and he was sure it was a part of their rights which they were never more inclined to defend, of which they were never more jealous, than at that hour."[100] And he contended that Fox's objections to a dissolution betrayed a consciousness that he had not the confidence of the nation. At last, when the contest had lasted nearly two months, Fox took the matter into his own hands, and, no longer putting his partisans in the front of the battle, on the 1st of March he himself moved for an address to the King, the most essential clause of which "submitted to his Majesty's royal consideration that the continuance of an administration which did not possess the confidence of the representatives of the people must be injurious to the public service." ... And, therefore, that "his Majesty's faithful Commons did find themselves obliged again to beseech his Majesty that he would be graciously pleased to lay the foundation of a strong and stable government by the previous removal of his present ministers." In the speech with which he introduced this address he put himself forward as especially the champion of the House of Commons. He charged the Prime-minister with an express design "to reduce the House to insignificance, to render it a mere appendage to the court, an appurtenance to the administration." He asserted the existence of a systematic "design to degrade the House, after which there was not another step necessary to complete the catastrophe of the constitution." And on this occasion he distinguished the feelings of the King from those which influenced the minister, affirming his confidence "that the King's heart had no share in the present business."[101] Pitt, on the other hand, in reply, affirmed that he was called on by duty "to defend the rights of the other branches of the Legislature; the just and constitutional prerogative of the sovereign," upon which the Opposition was seeking to encroach, without even having shown a single reason to justify such invasion. He freely admitted that, if the House of Commons or either of the other branches of the Legislature "disapproved of an administration on proper grounds, it would not be well for that administration to retain office." But in the present instance he contended that "no ground for disapprobation had been shown." The existing administration "had, in fact, by an unaccountable obstinacy and untowardness of circumstances, been deprived of all opportunity" of showing its capacity or its intentions. "If any accusations should be made and proved against it, if any charges should be substantiated, it would, indeed be proper for the ministers to resign; and if, in such a case he were afterward to continue in office, he would suffer himself to be stigmatized as the champion of prerogative, and the unconstitutional supporter of the usurpation of the crown. But till this period arrived, he should reckon it his duty to adhere to the principles of the constitution, as delivered to us by our ancestors; to defend them against innovation and encroachment, and to maintain them with firmness." "The constitution of this country," he presently added, "is its glory; but in what a nice adjustment does its excellence consist! Equally free from the distractions of democracy and the tyranny of monarchy, its happiness is to be found in its mixture of parts. It was this mixed government which the prudence of our ancestors devised, and which it will be our wisdom to support. They experienced all the vicissitudes and distractions of a republic; they felt all the vassalage and despotism of a simple monarchy. They abandoned both; and, by blending each together, extracted a system which has been the envy and admiration of the world. This system it is the object of the present address to defeat and destroy. It is the intention of this address to arrogate a power which does not belong to the House of Commons; to place a negative on the exercise of the prerogative, and to destroy the balance of power in the government as it was settled at the Revolution." Fox had urged that our history afforded no example of a ministry retaining office after the House of Commons had passed a resolution condemning it. Pitt, in reply, urged that our history equally failed to furnish any instance of a ministry having been called on to retire without any misconduct being alleged against them. And the result of the division showed that his arguments and his firmness were producing an impression on the House, for, though he was again defeated, the majority against him (only twelve) was far smaller than on any previous division.[102] A week later, this feeling in his favor was shown still more decidedly, when Fox, on moving for a fresh address, or, as he termed it, a representation to the King that the House had received his Majesty's reply to their address "with surprise and affliction," he could only carry it by a single vote.[103] And this division closed the struggle. Fox made no farther effort. Before the end of the month the Parliament was dissolved, and the general election which ensued sent to the House a majority to support the ministers which Pitt was fairly warranted in claiming as the full justification of the course which he had pursued. On a review of the whole of this extraordinary transaction, or series of transactions, it is impossible to avoid regarding the issue of the struggle as an all-important element in the case, and a test almost decisive of the correctness of conduct of the rival leaders. We may leave out of the question the action of the King in his communication to Lord Temple, which, although sanctioned by the great legal authority of Lord Thurlow, we are, for reasons already given, compelled to regard as unconstitutional, but for which Mr. Pitt was only technically responsible; having, indeed, made himself so by his subsequent acceptance of office, but having had no previous suspicion of the royal intentions. Similarly, we may dismiss from our consideration the merits or demerits of Fox's India Bill, the designs which were imputed to its framers, or the consequences which, whether intended or not by them, were predicted as certain to flow from it. And we may confine ourselves to the question whether, in the great Parliamentary struggle which ensued, and which lasted for more than three months,[104] the doctrines advanced by Mr. Fox, and the conduct pursued by him, were more or less in accordance with the admitted rules and principles of the constitution. These doctrines may be reduced to two: the first a declaration that no minister is justified in retaining office any longer than he is sustained in it by the favorable judgment of the representatives of the people. Taken by itself, this, but for one consideration, might be pronounced the superfluous assertion of a truism; superfluous, because it is obvious that a House of Commons hostile to a minister can compel his resignation by obstructing all his measures. And Pitt himself recognized this as fully as Fox, though we may hardly agree with him that the Opposition was bound to allow him time to develop his policy, and to bring forward his various measures, before it pronounced an opinion adverse to them. In 1835, when Sir R. Peel first met Parliament after his acceptance of office, consequent on the King's dismissal of Lord Melbourne's ministry, the Opposition encountered and defeated him twice in the first week of the session--on the choice of a Speaker, and on the address, though the latter had been framed with the most skilful care to avoid any necessity for objection; but no attempt was made by him to call in question the perfect right of Lord J. Russell and his followers in the House to choose their own time and field of battle. But there is one farther consideration, that the authority belonging to the judgment of the House of Commons depends on that judgment being not solely its own, but the judgment also of the constituencies which have returned it, and whose mouth-piece it is; and also that the House is not immortal, but is liable to be sent back to those constituencies, to see whether they will ratify the judgment which their representatives have expressed; whether, in other words, their judgment be the judgment of the nation also. This farther consideration was, in fact, Pitt's plea for resisting the majorities which, through January and February, so repeatedly pronounced against him. And in determining to appeal to the constituencies, as the court of ultimate resort, he was clearly within the lines of the constitution. It follows that Fox, in protesting against a dissolution, in threatening even to take steps to prevent it, was acting in self-evident violation of all constitutional principle and precedent. He was denying one of the most universally acknowledged of the royal prerogatives. The distinction which he endeavored to draw between a dissolution at the close of a session and one in the middle of it, had manifestly no validity in law or in common-sense. The minister had a clear right to appeal from the House of Commons to the people, and one equally clear to choose his own time for making that appeal. The appeal was made, the judgment of the nation was pronounced, and its pronouncement may be, and indeed must be, accepted as a sufficient justification, in a constitutional point of view, of Pitt's conduct both in accepting and retaining office. If he retained it for three months, in opposition to the voice of the existing House of Commons, he could certainly allege that he was retaining it in accordance with the deliberate judgment of the nation. And this is the verdict of a modern statesman, a very careful student of the theory of our Parliamentary constitution, and one whom party connection would notoriously have inclined to defend the line taken by Mr. Fox, had it been possible to do so. Indeed, he may be said to show his bias in that statesman's favor when he affirms that he would have been right in moving a resolution of censure on Pitt for "his acceptance of office," which he presently calls the result of "the success of a court intrigue,"[105] and, without a particle of evidence to justify the imputation, affirms to "have been prepared beforehand with much art and combination." But _amicus Fox, sed magis arnica veritas_; and though he thus passes censure on Pitt, where the facts on which he bases it are at least unproved, on those points as to which the facts are clear and certain he condemns Fox altogether, affirming that his "attempt to show that the crown had not the prerogative of dissolving Parliament in the middle of a session had neither law nor precedent in its support."[106] And he proceeds to lay down, with great clearness and accuracy, "the practice as well as the theory of our mixed government," which is, that "when two of the powers of the state cannot" agree, and the business of the state is stopped, the only appeal is to the people at large. Thus, when in the reign of Queen Anne the House of Lords and the House of Commons fulminated resolutions at each other, a dissolution cleared the air and restored serenity. If no case had occurred since the Revolution of a quarrel between the crown and the House of Commons, the cause is to be sought in the prudence with which every sovereign who had reigned since that event had wielded his constitutional authority. If George III. had been wanting in that prudence, it did not follow that he was debarred from the right of appealing to the people. Any other doctrine would invest the House of Commons, elected for the ordinary business of the state, with a supreme power over every branch of it. This supreme power must rest somewhere; according to our constitution it rests in the common assent of the realm, signified by the persons duly qualified to elect the members of the House of Commons; and Lord Russell, in thus expounding his ideas on this subject, was undoubtedly expressing the view that ever since the transactions of which we have been speaking has been taken of the point chiefly in dispute. Since that day there has been more than one instance of Parliament being dissolved in the middle of a session; but, though the prudence of the different ministers who advised such dissolutions may, perhaps, have been questioned--nay, though in one memorable instance it was undoubtedly a penal dissolution in the fullest sense of the word[107]--no one has ever accused the sovereign's advisers of seducing him into an unconstitutional exercise of his prerogative. Pitt was now Prime-minister, with a degree of power in Parliament and of popularity out-of-doors that no former minister, not even his own father, had ever enjoyed. As such, by the confession of one who was certainly no friendly critic,[108] "he became the greatest master of Parliamentary government that has ever existed." His administration may be regarded as a fresh starting-point in the history of the country, as the inauguration of the principle of steady amendment, improvement, and progress, in place of the maxims which had guided all his predecessors since the Revolution, of regarding every thing as permanently settled by the arrangements made at that time, and their own duty, consequently, as binding them to keep everything in its existing condition. But, of all the ministers recorded in our annals, there is not one so greatly in advance of his time as Pitt; and from the very outset of his ministerial career he applied himself, not only to the removal or correction of admitted abuses or defects, but, in cases where the fault, being in our general system of policy, had been less conspicuous, to the establishment of new principles of action which have been the rules of all succeeding statesmen. He was not, indeed, the first raiser of the question of Parliamentary Reform, but he was the first to produce an elaborate scheme with that object, parts of which, such as the suppression of the smaller boroughs and the enfranchisement of places which had gradually become more important, have been leading features of every subsequent bill on the subject. He was the first to propose the removal of those political disabilities under which the Roman Catholics labored, which no one before him had regarded as consistent with the safety of the state, and to which he sacrificed office. He was the first to conceive the idea of developing our national industries and resources by commercial treaties with other nations, even choosing for his essay-piece a treaty with a country with which our relations for nearly five hundred years had been almost uninterruptedly hostile, and which Fox, in the heat of his opposition, objected even to consider in any other light than that of an enemy. He laid the foundation for all subsequent legislation connected with our colonies in his Bill for the Government of Canada; and he established a system for the government of our Indian dependencies on so statesman-like a principle, that all subsequent administrations concurred in upholding it, till subsequent events compelled the abolition of all the share in the government of the country previously possessed by the Company. A great writer of the past generation,[109] who in some respects has done full justice to his genius and political virtue, has, however (partly, it can hardly be doubted, from regarding himself as a follower of his great rival, Fox), contrasted his capacity as a War-minister with that of his father, drawing a comparison on this point very disadvantageous to the son. We need not stop to examine how far the praises which he bestows on Lord Chatham's talents as a planner of military operations are deserved; but it may very fairly be contended that the disparaging views of Pitt's military policy which he has advanced are founded solely on what is in this as well as in many other instances a most delusive criterion, success. It is true, unquestionably, that in the campaigns of 1793-4-5 against the French revolutionists, while he took upon this country the entire burden of the naval war, on land he contented himself with playing a secondary part, and employing a comparatively small force (which, however, doubled that which his father had sent to Minden),[110] for the success of the military operations trusting chiefly to the far stronger Austrian and Prussian divisions, under the command of Prince Coburg and the Duke of Brunswick, to which the British regiments were but auxiliaries. It is true, also, that the result of their operations was unfortunate, and that the German generals proved wholly unable to contend with the fiery and more skilful impetuosity of Jourdan and Pichégru. But the question is not whether Pitt's confidence in the prowess of his allies was misplaced, but whether he had not abundant reason to justify him in entertaining it. And, to judge fairly on this point, we must recollect the reputation which for the last forty years the Austrian and Prussian armies had enjoyed. The result of the seven years' war had established the renown of the Prussians, and the Duke of Brunswick was understood to be a favorite pupil of the Great Frederic. The same war had shown that the Austrians were not very unequal to the Prussians; while the reputation of the French troops had fallen to the lowest ebb, the most memorable event in their annals during the same war being the rout of Rosbach, when 60,000 of them fled before Frederic and 22,000. At the breaking out of the Revolution, it might be said that De Bouille was the only French general of the slightest reputation, and since the sad journey to Varennes he had been an exile from his country. And, though again in 1803 Pitt once more trusted for success on land to Continental alliances, not only does he deserve admiration for the diplomatic talent with which he united Austria, Prussia, and Russia against France, but it can hardly be doubted that confederacy would have been triumphant, had not the incompetent vanity of Alexander ruined all its prospects by his rash disregard at Austerlitz of the experienced warnings of his own staff.[111] The new form of government which he established for India, and to which allusion has been made, has lost the greater part of its importance in the eyes of the present generation, from the more-recent abolition of the political authority of the East India Company, though of some of the principles which he avowed he had taken for his guides it is worth while to preserve the record; with such clearness, as well as statesman-like wisdom, do they affirm the objects which every one should keep in view who applies himself to legislation for distant dependencies where the privileges and interests of foreign fellow-subjects are to be regarded with as jealous a solicitude as those of our own countrymen. These objects may be briefly described as being the reconciling the vested and chartered interests of the Company with the legitimate authority of the King's government; for, though Pitt admitted that "state necessity" might occasionally be allowed as a valid reason for the abrogation of a charter, he affirmed that nothing short of such absolute necessity could excuse such a measure, and he relied on the previous history of the Company to prove the fallacy of an observation that had sometimes been made, that commercial companies could not govern empires. There were three interests to be considered: that of the native Indians, that of the Company, and that of this country; and the problem to be solved was, "how to do the most good to India and to the East India Company with the least injury to our constitution." Some of his remarks contained unavoidable allusions to Fox's bill of the previous year, since some of the provisions of his bill were entirely opposite to those which Fox had framed, the most material point of difference being the character of the Board of Control which he proposed to establish. Fox, as has been seen, had proposed to make the commissioners to be appointed under his bill irremovable for several years, whatever changes might take place in the home government; an arrangement which the opposers of the bill suspected of being designed to prevent any change in the home government from taking place. Pitt, on the other hand, laid down as one of his leading principles that "the board could not be permanent, that it must be subordinate to the administration of the day, and that permanency would be in itself a deviation from the principles of the constitution, and would involve the board in contradictions to the executive government that could not fail to be attended with great public inconvenience. An institution to control the government of India must be either totally independent of the government of this country or subordinate to it." "The board was to consist of none but privy councillors," and instead of the vast amount of patronage which was to have been created by the bill of 1783, this board was "to create no increase of officers nor to impose any new burdens." ... "The first and leading ideas would be, to limit the subsisting patronage;" ... and so little was Pitt covetous to engross that which did and must continue to subsist, that he left even "the officers of the government of Bengal to the nomination of the Court of Directors, subject only to the negative of the crown; and the Court of Directors was also to have the nomination of the officers of all the subordinate governments, except only of the commander-in-chief, who, for various reasons, must remain to be appointed by the crown." Another very important part of the arrangement was, that "gradation and succession were to be the general rule of promotion," a regulation which of itself would be "a forcible check upon patronage, and tend greatly to its reduction." The governor of Bengal was to be the governor-general of the whole country, the governors of Madras and Bombay being subordinate to him; and each governor was to be assisted by a council of three members, of whom the commander of the forces was to be one. The spirit in which a law or a government is administered is commonly of greater practical importance than the words in which the regulation or the system is framed or defined; and Pitt, therefore, concluded his speech by laying down a few "clear and simple principles as those from which alone a good government could arise. The first and principal object would be to take care to prevent the government from being ambitious and bent on conquest. Commerce was our object, and, with a view to its extension, a pacific system should prevail, and a system of defence and conciliation. The government there ought, therefore, in an especial manner, to avoid wars, or entering into alliances likely to create wars." It was not to forget "to pay a due regard to self-defence, or to guard against sudden hostilities from neighboring powers, and, whenever there was reason to apprehend attack, to be in a state of preparation. This was indispensably necessary; but whenever such circumstances occurred, the executive government in India was not to content itself with acting there as the circumstances of the case might require; it was also to send immediate advice home of what had happened, of what measures had been taken in consequence, and what farther measures were intended to be pursued; and a tribunal was to be established to take cognizance of such matters." The system of taking presents from the natives was to be absolutely prohibited, a regulation which he hoped would "tend effectually to check private corruption;" and, lastly, it was proposed to establish a court of criminal judicature for the trial in England of certain classes of delinquents after their return from India. The Judges of the court were to be men of the highest character; they were to be chosen by ballot, some being taken from the bench of judges, some from each House of Parliament. And they were "not to be tied down to strict rules of evidence, but to be upon their oaths to give their judgments conscientiously, and to pronounce such judgment as the common law would warrant." Such a tribunal he admitted to be an innovation; but, "unless some new process were instituted, offences shocking to humanity, opposite to justice, and contrary to every principle of religion and morality, must continue to prevail, unchecked, uncontrolled, and unrestrained, and the necessity of the case outweighed the risk and the hazard of the innovation." These were the general outlines of the constitution which in 1784 the Parliament established for India, and the skill with which it was adapted to the very peculiar character of the settlements to be governed is sufficiently proved by the fact that it was maintained with very little alteration equally by Whig and Tory administrations for three-quarters of a century, till the great convulsion of the Mutiny compelled an entire alteration in the system, and the abolition of the governing powers of the Company, as we shall have occasion to relate in a subsequent chapter. The principles which Pitt had laid down as the guiding maxims for the governors; the avoidance of ambitious views of conquest, the preservation of peace, and the limitation of the aims of the government to the encouragement and extension of commerce, were not equally adhered to. Undoubtedly, in some instances, the wars in which, even during Pitt's too short lifetime, the Indian government was engaged, came under his description of wars which were justifiable on the ground of self-defence--wars undertaken for the preservation of what had been previously won or purchased, rather than for the acquisition of new territories at the expense of chiefs who had given us no provocation. But for others, though professedly undertaken with a view only of anticipating hostile intentions, the development of which might possibly be reserved for a distant future, it is not easy to find a similar justification; and it may be feared that in more than one case governors-general, conscious of great abilities, have been too much inclined to adopt the pernicious maxim of Louis XIV., that the aggrandizement and extension of his dominions is the noblest object which a ruler of nations can have in view. Yet, though unable on strictly moral grounds to justify all the warlike enterprises which make up so large a part of our subsequent Indian history, it is impossible, probably, for even the most rigid moralist to avoid some feelings of national pride in the genius of our countrymen, who in the short space of a single century have built up an empire of a magnitude unequalled even by the Caesars, and have governed and still are governing it in so wise and beneficent a spirit, and with such a display of administrative capacity, that our rule is recognized as a blessing by the great majority of the nations themselves, as a protection from ceaseless intestine war, from rapine, and that worst of tyrannies, anarchy, which was their normal condition before Clive established our supremacy at Plassy, and into which they would surely and speedily fall back, if our controlling authority were to be withdrawn. India was not the only British settlement for which the growth of our empire compelled Pitt to devise a constitution. The year which saw his birth had also seen the conquest of Canada from the French; and in 1774 a system of government for the new province had been established which it is sufficient here to describe as one, which differed but little from a pure despotism, the administration being vested in a governor and Legislative Council, every member of which was to be nominated by the crown. But the working of this act had from the first proved very unsatisfactory, and had become more so as the population increased by the influx of fresh settlers from Great Britain, and also from the United States, here many of those who in the recent civil war had adhered the connection with the mother country had been exposed to constant malice and ill-treatment, and had preferred crossing the border and obtaining lands in Canada to returning to England. Pitt recognized the evil, and undertook to remedy it and in 1791 he introduced a bill to establish a constitution for Canada, which a recent historian describes as "remarkable, as recognizing for the first time the wise and generous principle of independent colonial institutions, which has since been fully developed in every dependency of the British crown capable of local self-government."[112] One peculiar difficulty in framing such a constitution arose from the circumstance of the old French colonists, who greatly outnumbered the settlers of British blood, being attached to the Roman Catholic religion; while the British settlers were nearly, or perhaps all, Protestant, though of different denominations. The difficulty was, indeed, lessened by the circumstance that the French dwelt in Quebec and the district between that city and the mouth of the St. Lawrence, and that the English had for the most part betaken themselves to the more inland region. And this local separation of the two races the minister now took for his guide in the arrangement which he devised. The most important feature in it was the division of the province into two parts, as Upper and Lower Canada, and the establishment of a distinct local Legislature for each division, a House of Assembly being created in each, and a Council, so as, in Pitt's words, "to give both divisions the full advantages of the British constitution." The Assemblies were to have the power of taxation (so that there was no room left for such perverse legislation by a British Parliament as had lately cost its sovereign the United States). The act of _habeas corpus_ was extended to the province (a privilege which no one of French blood had ever enjoyed before); the tenure of land was to be the socage[113] tenure so long and happily established in England. Complete religious toleration was established, and a certain proportion of land was allotted in Upper Canada, as a provision for a Protestant clergy, and the foundation of an ecclesiastical establishment. So great was Pitt's desire to complete the resemblance between the colony and Great Britain, that he even contemplated the creation of an aristocracy, by the introduction of a provision enabling the King to grant hereditary colonial titles, the possession of which should include hereditary seats in the provincial Council. The two latter clauses were opposed by Fox, and the latter of them, though sanctioned by Parliament, was never carried out in practice. But Fox, bitter as he was at this time in his general opposition to the government, agreed cordially in the general principles of the bill, avowing his conviction that "the only method of retaining distant colonies with advantage is to enable them to govern themselves," so that each party in the British Parliament is entitled to a share of the credit for this pattern of all subsequent colonial constitutions--Pitt for the original genius for organization which his contrivance of all the complicated details of the measure displayed, and Fox for his frank adoption of the general principle inculcated by his rival, even while differing as to some of the minor details of the measure. During these years the country was increasing in prosperity, and the minister was daily rising in credit; more powerful and more popular than the most successful or the most brilliant of his predecessors. But during these same years two great constitutional difficulties had arisen, one of which, indeed, the deep sense which both parties felt of the danger of investigating it shelved almost as soon as it was seen; but the other of which, besides the importance which it derived from the degree in which it involved the principle of the supreme authority of Parliament, and brought under discussion even that which regulates the succession to the crown, imperilled the existence of the ministry, and threatened a total change in both the domestic and foreign policy of the nation. The Prince of Wales, who had come of age in the summer of 1783, had at once begun to make himself notorious for the violence of his opposition to his father's ministers, carrying the openness of his hostility so far as, during the Westminster election to drive about the streets with a carriage and all his servants profusely decorated with Fox's colors; and, still more discreditably, by most unmeasured profligacy of all kinds. The consequence was that he soon became deeply involved in debt, so deeply that, in 1787, a member of Fox's party gave notice of his intention to move that the Parliament should pay his debts and increase his income. Pitt, without specifying his reasons, avowed that he should feel it his duty to oppose any grant of such a character; but another member of Parliament, Mr. Rolle, one of the members for Devonshire, being trammelled by no such feeling of responsibility, expressed a similar resolution in language which contained an allusion perfectly understood on both sides of the House. He said that "the question thus proposed to be brought forward went immediately to affect our constitution in Church and State." And every one knew that he was referring to a report which had recently become general, that the Prince was married to a Roman Catholic lady of the name of Fitzherbert. No direct notice was taken of this allusion at the moment, Fox himself, who had the chief share of the Prince's confidence, being accidentally absent; but a day or two afterward he referred to Rolle's speech with great indignation, declaring that it referred to a "low, malicious calumny" which had no foundation whatever, and "was only fit to impose on the lowest order of persons." Being pressed as to the precise force of his assertion, and being asked whether it meant more than that under the existing laws, such as the Royal Marriage Act, there had been no marriage, because there could have been no _legal_ marriage, he declared that he meant no such evasion, but that no marriage ceremony, legal or illegal, had ever taken place; and farther, that in saying this he was speaking on the direct authority of the Prince himself. No more degrading act stains the annals of British royalty. For the fact was true--the very next evening Fox learned the deceit which the Prince had practised on him from a gentleman who had been one of the witnesses to the marriage, which had been solemnized by a Protestant clergyman fifteen months before.[114] And his indignation was such that for some time afterward he abstained from all interference in the Prince's affairs; while the language held by the Prince's other confidant, Mr. Sheridan, was so evasive as to betray a consciousness that whatever had occurred would not bear the light of day; so that there were very few to whom the truth or falsehood of the report was a subject of interest who felt any uncertainty on the subject. It may, probably, be regarded as fortunate for the peace of the kingdom that the Prince, who eventually became King George IV., left behind him no issue from his marriage with the Princess, the failure of heirs of his body thus removing any temptation to raise the question whether he had not himself forfeited all right to succeed to the throne by his previous marriage to a Roman Catholic. A clause of the Bill of Rights provides that any member of the royal family who should marry a Roman Catholic (with the exception of the issue of princesses who may be the wives of foreign princes) shall by that marriage be rendered incapable of inheriting the crown of England. And though the Royal Marriage Act (which, as we have seen, had been recently passed) had enacted that no marriage of any member of the royal family contracted without the consent of the reigning sovereign should be valid, it by no means follows that an invalidity so created would exempt the contractor of a marriage with a Roman Catholic, which as an honorable man he must be supposed to have intended to make valid, from the penalties enacted by the Bill of Rights. It is a point on which the most eminent lawyers of the present day are by no means agreed. The spirit of the clause in that bill undoubtedly was, that no apparent or presumptive heirs to the crown should form a matrimonial connection with any one who should own allegiance to a foreign power, and that spirit was manifestly disregarded if a prince married a Roman Catholic lady, even though a subsequent law had enacted a conditional invalidity of such a marriage. We may find an analogy to such a case in instances where a man has abducted a minor, and induced her to contract a marriage with himself. The lady may not have been reluctant; but the marriage has been annulled, and the husband has been criminally prosecuted, the nullity of the marriage not availing to save him from conviction and punishment. A bigamous marriage is invalid, but the bigamist is punished. And, apart from any purely legal consideration, it may be thought that public policy forbids such a construction of law as would make the illegality or invalidity of an act (and all illegal acts must be more or less invalid) such a protection to the wrong-doer as would screen him from punishment. Whatever may be the judgment formed on the legal aspect and merits of the case, the conduct of the Prince could not fail to give the great body of the people, justly jealous at all times of their national adherence to truthfulness and honesty, a most unfavorable impression of his character. As has been already mentioned, Fox was so indignant at having been made the instrument to assure the Parliament and the nation of a falsehood, that he for a time broke off all communication with him.[115] Yet a singular caprice of fortune, or, it would be more proper to say, a melancholy visitation of Providence, before the end of the following year led Fox to carry his championship of the same Prince who had so abused his confidence to the length of pronouncing the most extravagant eulogies on his principles, and on his right to the confidence and respect of the nation at large. In the autumn of 1788 the King fell into a state of bad health, which in no long time affected his mind, and, by the middle of November, had so deranged his faculties as to render him incapable of attending to his royal duties, or, in fact, transacting any business whatever. Parliament was not sitting, but its re-assembling had been fixed for the 4th of December, and before that day arrived the King's illness had assumed so alarming a character, and it appeared so unsafe to calculate on his immediate recovery, that the minister summoned a Privy Council, the summons being addressed to the members of the Opposition as well as to his own followers, to receive the opinions of the physicians in attendance on his Majesty, as a necessary foundation for the measures which he conceived it to be his duty to propose to Parliament. Those opinions were, that it was almost certain that the disease would not be permanent, though no one could undertake to fix its duration with the least appearance of probability. And, as the royal authority could not be left in abeyance, as it were, for an uncertain period, it was indispensable to appoint a Regent to conduct the affairs of the kingdom till the King should, happily, be once more in a condition to resume his functions. In considering the line of conduct adopted in this emergency by Pitt and his great rival Fox, Pitt has one manifest advantage on his side, that it is impossible to attribute the course which he took to any personal motive, or any desire for the retention of official power; while it is equally impossible to doubt that Fox was in no slight degree,[116] and that Lord Loughborough, the prince's chief adviser on points of law, was wholly influenced by the hope of supplanting the ministry. Pitt had never the least doubt that on the establishment of the Regency he should be dismissed, and was prepared to return to the Bar. But his knowledge of the preference which the Prince entertained for his rival did not lead him to hesitate for a single moment as to the propriety of placing him in a situation to exercise that preference. On the reassembling of Parliament, he at once took what he conceived to be the proper parliamentary course of proceeding; at his suggestion committees in both Houses were appointed to take a formal examination of the royal physicians; and, when those committees had reported that the King was for the present incapable of discharging his royal functions, though likely at some future period to be able to resume them, he moved the House of Commons to appoint another committee, to search for "precedents of such proceedings as might have been taken in the case of the personal exercise of the royal authority being prevented or interrupted by infancy, sickness, or infirmity, with a view to provide for the same." Such a search for precedents was no novelty, and may be thought to have been especially proper in such a case as this, since history recorded the appointment of several regencies, one under circumstances strikingly resembling those now existing, when, in 1454, Henry VI. had fallen into a state of imbecility, and the Parliament appointed the Duke of York Protector[117] of the kingdom. But Fox instantly opposed it with extreme vehemence, declaring that the appointment of such a committee would be a pure waste of time. It was notorious, he affirmed, that no precedent existed which could have any bearing on the present case, since there was in existence a person such as had never been found on any previous occasion, an heir-apparent of full age and capacity to exercise the royal authority; and he declared it to be his deliberate opinion that the Prince of Wales had "as clear and express a right to assume the reins of government, and to exercise all the powers of sovereignty, during the illness and incapacity of the sovereign, as if that sovereign were actually deceased." Such an assertion of indefeasible right was so totally at variance with the Whig doctrines which Pitt, equally with Fox, regarded as the true principles of the constitution, that Pitt at once perceived the advantage which it gave him, by enabling him to stand forward as the supporter of the supreme authority of Parliament, which Fox had by implication denied. He instantly replied that to assert an inherent indefeasible right in the Prince of Wales, or any one else, independently of the decision of the two Houses, fell little short of treason to the constitution; but, at the same time, to prevent any one pretending to misconceive his intentions, he allowed it to be seen with sufficient plainness that, when once the right of Parliament to appoint the Regent had been established, he should agree in the propriety of conferring that office on the Prince of Wales. The committee was appointed; but, even before it could report the result of its investigations, the doctrine advanced by Fox had been the subject of discussion in the House of Lords, where Lord Camden, who had presided over the meeting of the Privy Council a few days before, on moving for the appointment of a similar committee of peers, had taken occasion to declare that, if Fox had made such an assertion as rumor imputed to him, it was one which had no foundation in "the common law of the kingdom." He had never read nor heard of such a doctrine. Its assertors might raise expectations not easily laid, and might involve the country in confusion. And he contended, as Pitt had done in the Commons, that its assertion was a strong argument in favor of the appointment of a committee, that it might be at once seen whether it were warranted by any precedent whatever. The reports of the two committees bore out Fox's statement, that no precedent entirely applicable to the case before them had ever occurred. But by this time Fox had learned that the argument which he had founded on it was in the highest degree unpalatable both to Parliament and to the nation; and for a moment he sought to modify it by an explanation that, though he had claimed for the Prince "the naked right, he had not by that expression intended to maintain that that right could be reduced into possession without the consent of Parliament;" an explanation not very reconcilable to common sense, since, if a right were inherent and indefeasible, Parliament could not, without absolute tyranny, refuse to sanction its exercise; and, in fact, his coadjutor, Sheridan, on the very same evening, re-asserted his original doctrine in, if possible, still more explicit terms, warning the minister "of the danger of provoking the Prince to assert his right," while a still greater man (Burke) declared that "the minister had taken up an attitude on the question tantamount to that of setting himself up as a competitor to the Prince." Such inconsiderate violence gave a great advantage to Pitt, one of whose most useful characteristics as a debater was a readiness and presence of mind that nothing could discompose. He repelled such menaces and imputations with an equally lofty scorn, and, after a few necessary preliminaries, brought forward a series of resolutions, one of which declared the fact of the sovereign's illness, and consequent incapacity; a second affirmed it to be the right and duty of the two Houses of Parliament to provide the means for supplying the defect in the royal authority; and a third imposed on the Houses the task of deciding on the mode in which the royal assent necessary to give their resolutions the authority of law should be signified. It was impossible to object to the first; but the second was stubbornly contested by the Opposition, the chiefs of the Coalition Ministry once more fighting side by side; though Lord North contented himself with arguing that the affirmation of the right and duty of Parliament was a needless raising of a disputable point, and moving, therefore, that the committee should report progress, as the recognized mode of shelving it. Fox, however, carried away by the heat of debate, returned to the assertion of the doctrine of absolute right, overlooking his subsequent modification of it, and again gave Pitt the advantage, by condescending to impugn his motives for proposing the resolution, as being inspired, not by a zeal for the constitution, but by a consciousness that he did not deserve the confidence of the Prince, and, therefore, anticipated his instant dismissal by the Regent. The re-affirmation of the Prince's inherent right was, indeed, necessary to Fox as the foundation for the objections which he took to other parts of Pitt's scheme. For the minister, while admitting to its full extent the irresistible claim which the Prince of Wales possessed to the preference of Parliament for the Regency, proposed at the same time to impose certain limitations on his exercise of the authority, so long as there was a reasonable hope of his royal father's recovery. He was not to have the power to create peerages, nor to alienate the property of the crown, nor to grant offices in reversion; and, as the Queen was to have the care of his Majesty's person, she also was to have the appointment of all the offices in the royal household. Fox, on the other hand, objected with extreme earnestness to the impropriety of imposing any limitations whatever on the power of the Regent; and then the question whether the Prince was to derive his right to the Regency from the authority of Parliament, or from his natural position and inalienable preceding right as his father's heir, became one of practical importance. If the Parliament had the right to confer authority, it had clearly the right to limit the authority it conferred. If the Prince had an indefeasible right to the Regency, independently of the will of Parliament, then Parliament could have no pretence to limit or restrain the exercise of an authority which in no degree flowed from itself. Fox, indeed, took another objection to the imposing of limitations to the authority to be intrusted to the Regent, contending that this would be to create a power unknown to the constitution--a person in the situation of King without regal power. But, not to mention precedents drawn from the reigns of Edward III., Richard II., and Henry VI., in the twenty-fourth year of the very last reign, George II., on the death of his son, the father of the present King, had enjoined the Parliament to provide for the government, in the case of his own death, while the heir was still a minor, recommending to them the appointment of the Princess Dowager of Wales as Regent, "with such powers and limitations as might appear expedient." And, in conformity with his desire, the Parliament had appointed the Princess Regent, with a Council of Regency to assist her; and had enacted that "several portions of the regal power" should be withheld from the Regent, if she could not obtain the consent of the Council thus appointed.[118] This part of the case was so plain, that when, after the different resolutions proposed by Pitt had been adopted in both Houses, Fox insisted that, instead of proceeding by a bill to create a Regency, and to appoint the Prince of Wales Regent, the only course which could be adopted with propriety would be to present an address to the Prince, to entreat him to assume the government, he failed to induce the House to agree with him; and finally, as if he were determined to find a battle-field in every clause, he made a vigorous resistance to the expedient by which Pitt proposed that the formal royal assent which was necessary to make the bill law should be given. Fox, on one occasion, had gone the length of denying that the two Houses had any right to be regarded as a Parliament while the King, an essential part of Parliament, was incapacitated. But such an objection could have had no force, even in the mind of him who raised it, since the proceedings of the two Convention Parliaments of 1660 and 1689 labored under a similar defect; and yet their acts had been recognized as valid, and ratified by subsequent Parliaments. And now, in reference to the expedient proposed by the minister, that the two Houses should empower and authorize the Lord Chancellor to affix the Great Seal to the bill, Burke, with great, but for him not unusual, violence, denounced both the proposal and the Chancellor, declaring that such a step would be the setting up of a phantom of sovereignty, a puppet, an idol, an idiot, to which he disclaimed all allegiance. A more perilous amendment was one proposed to another clause by Mr. Rolle, enacting that if the Regent should marry a Roman Catholic his authority should cease. Since the Bill of Rights, as we have seen, forbade a sovereign to marry a Roman Catholic without incurring the forfeiture of his crown, it was evidently reasonable that the same restriction should be imposed on every Regent; but it was hard at the moment altogether to dissociate such a clause from the discussions of the preceding year; and Mr. Rolle endeavored to give the clause a more pointed meaning by an amendment to enact that the forfeiture should be incurred by the mere celebration of any marriage ceremony, whether the marriage thus performed were legal and valid or not. His amendment, however, was unanimously rejected. The bill was passed without alteration by the House of Commons; the Prince, while protesting in an elaborate and most able letter, drawn up for him by Burke, against the restrictions imposed by the bill, nevertheless consented to sacrifice his own judgment to the general good of the kingdom, and to accept the authority, limited as it was. And by the middle of February the bill was sent up to the House of Lords. There Lord Camden had charge of it, and his position as a former Chancellor gave irresistible weight to his opinion that the mode proposed to give the final sanction to the bill was strictly in accordance with the spirit and practice of the constitution. The point with which he dealt was the previous one, how Parliament, which was to pass the bill, was to be opened, for, "circumstanced as it was, Parliament could not at present take a single step." The law, as he put it, declared that the King must be present, either in person or by a representative. When he could not attend personally, the legal and constitutional process was to issue letters-patent under the Great Seal. In the present dilemma, therefore, he recommended that the two Houses should direct letters-patent to be issued under the Great Seal, authorizing commissioners to open Parliament in the name of his Majesty. He "must use the liberty to say that those who treated this proposal with ridicule were ignorant of the laws of their country. A fiction it might be termed, but it was a fiction admirably calculated to preserve the constitution, and, by adopting its forms, to preserve its substance." The authority of the Great Seal he explained to be such that, "even if the Lord Chancellor, by caprice, put it to any commission, it could not afterward be questioned;" and he adduced a precedent of a very similar character to the course now proposed, which occurred "at the commencement of the reign of Henry VI., when, the sovereign being an infant of nine months old, the Great Seal was placed in his hand, and it was supposed to be given to him by the Master of the Rolls, whereupon many commissions were sealed by it, and the government was carried on under its authority." That precedent, he reminded the peers, had been followed as recently as the year 1754, when, during an illness of George II., Lord Chancellor Hardwicke affixed the Great Seal to a commission for opening a session of Parliament. And, finally, he concluded by moving, "That it is expedient and necessary that letters-patent for opening the Parliament should pass under the Great Seal."[119] The motion was carried, and Parliament was opened in accordance with it; and, if it had been necessary, the same expedient would have sufficed to give the requisite assent to the Regency Bill, a necessity which was escaped by the fortunate recovery of the royal patient, which was announced by his medical advisers a day or two before that fixed for the third reading of the bill in the House of Lords. Though the question was thus left undetermined for the moment, it was revived twenty-two years afterward, when the same sovereign was attacked by a recurrence of the same disease, and the existing ministry, then presided over by Mr. Perceval, brought forward a Regency Bill almost identical with that which on this occasion had been framed by Mr. Pitt; and the Opposition, led by Lord Grey and Sir Samuel Romilly, raised as nearly as possible the same objections to it which were now urged by Fox and his adherents. The ministerial measure was, however, again supported by considerable majorities; so that the course proposed by Mr. Pitt on this occasion may be said to have received the sanction of two Parliaments assembled and sitting under widely different circumstances; and may, therefore, be taken as having established the rule which will be adopted if such an emergency should, unfortunately, arise hereafter. And indeed, though the propriety of Pitt's proposals has, as was natural, been discussed by every historical and political writer who has dealt with the history of that time, there has been a general concurrence of opinion in favor of that statesman's measure. Lord John Russell, while giving a document, entitled "Materials for a Pamphlet," in which he recognizes the handwriting of Lord Loughborough, and which "contains the grounds of the opinion advanced by him, and adopted by Mr. Fox, that, from the moment the two Houses of Parliament declared the King unable to exercise his royal authority, a right to exercise that authority attached to the Prince of Wales," does not suppress his own opinion of the "erroneousness of this or any other doctrine that attributes to any individual or any constituted authority existing in the state a strict or legal right to claim or to dispose of the royal authority while the King is alive, but incapable of exercising it."[120] The only writer, as far as I am aware, who advocates the opposite view is Lord Campbell, who, after quoting the speech of Lord Camden, from which extracts have been made, comments on it, and on the whole transaction, in the following terms: "From the course then adopted and carried through, I presume it is now to be considered part of our constitution that if ever, during the natural life of the sovereign, he is unable by mental disease personally to exercise the royal functions, the deficiency is to be supplied by the two Houses of Parliament, who, in their _discretion_, will probably elect the heir-apparent Regent, under such restrictions as they may please to propose, but who may prefer the head of the ruling faction, and at once vest in him all the prerogatives of the crown. On the two occasions referred to in the reign of George III., the next heir being at enmity with the King and his ministers, this was considered the loyal and courtly doctrine; and, from its apparent advancement of the rights of Parliament, there was no difficulty in casting odium on those who opposed it. But I must avow that my deliberate opinion coincides with that of Burke, Fox, and Erskine, who pronounced it to be unsupported by any precedent, and to be in accordance with the principles of the Polish, not the English, monarchy. The two Houses of Parliament would be the proper tribunal to pronounce that the sovereign is unable to act; but then, as if he were naturally as well as civilly dead, the next heir ought of right to assume the government as Regent, ever ready to lay it down on the sovereign's restoration to reason, in the same way as our Lady Victoria would have returned to a private station if, after her accession, there had appeared posthumous issue of William IV. by his queen. It is easy to point out possible abuses by the next heir as Regent, to the prejudice of the living sovereign; but there may be greater abuses of the power of election imputed to the two Houses, whereby a change of dynasty might be effected. I conceive, therefore, that the Irish Parliament[121] in 1789 acted more constitutionally in acknowledging the _right_ of the next heir, in scouting the fiction of a commission or royal assent from the insane sovereign, and in addressing the Prince of Wales to take on himself the government as Regent." Though the sneers at the possibility of Parliament preferring "the head of the ruling faction" to the heir-apparent be hardly consistent with the impartial candor which is one of the most imperative duties of an historical critic, and though the allusion to the principles of the Polish monarchy be not very intelligible, yet no one will refuse to attach due weight to the deliberate opinion of one who won for himself so high a professional reputation as Lord Campbell. But, with all respect to his legal rank, we may venture to doubt whether he has not laid down as law, speaking as a literary man and an historian, a doctrine which he would not have entertained as a judge. For, if we consider the common law of the kingdom, it is certain that, in the case of subjects, if a man becomes deranged, his next heir does not at once enter on his property "as if he were naturally as well as civilly dead." And if, as in such cases is notoriously the practice, the Court of Chancery appoints a guardian of the lunatic's property, analogy would seem to require that the Houses of Parliament, as the only body which can possibly claim authority in such a matter, should exercise a similar power in providing for the proper management of the government to that which the law court would exercise in providing for the proper management of an estate; and that, therefore, the principles of constitutional[122] statesmanship, which is deeply interested in upholding the predominant authority of Parliament, must justify the assertion of the ministers that the two Houses had the entire and sole right to make regulations for the government of the kingdom during the incapacity of the sovereign; and that the next heir, even when a son of full age, can have no more right to succeed to his father's royal authority in his lifetime than, if that father were a subject, he would have to succeed to his estate. The opposite doctrine would seem to impugn the legality of the whole series of transactions which placed William and Mary on the throne. The admission of an indefeasible right of the heir-apparent would have borne a perilous resemblance to a recognition of that divine right, every pretension to which the Revolution of 1688 had extinguished. If, again, as Fox and his followers at one time endeavored to argue, the Houses in 1789 had no right to the name or power of a Parliament, because the King had no part in their meetings, the convention that sat a century before (as, indeed, was admitted) was certainly far less entitled to that name or power, for it had not only never been called into existence by a King, but was assembled in direct defiance of the King. Similarly, it is admitted that the body which invited Charles II. to return and resume his authority was equally destitute of the validity which could only be given by a royal summons. Yet both these bodies had performed actions of greater importance than that which was looked for from this Parliament. The one had abolished the existing and usurping government, and restored to his kingdom a King who had been long an exile. The other had, as it were, passed sentence on the existing sovereign, on grounds which confessedly will not bear a strict examination, and had conferred the crown on a prince who had no hereditary claim to the title. The justification of both acts was necessity. _Salus regni suprema Lex_. And the necessity was clearly more urgent in the present case than in either of the preceding instances. For, unless the Parliament interfered to create an authority, there was absolutely none in existence which was capable of acting. It should also be remembered that this Parliament of 1789, though not opened for the session by the King, had been originally elected in obedience to his order, and had been prorogued by his proclamation to the day of meeting;[123] and, though the opening of a session by a speech from the throne is the usual form for the commencement of its proceedings, it may be doubted whether it be so indispensable a part of them that none of their acts are valid without it. The breaking out of the French Revolution, and the degree in which, in spite of all its atrocities and horrors, the revolutionary spirit for a time infected a large party in England, prevented Pitt from reviving the plan of Reform which he had framed with such care and genius for organization, and in which, though defeated in Parliament, both before and after he became minister, he had hitherto continued to cherish the hope of eventually succeeding. But when clubs and societies, where the most revolutionary and seditious doctrines were openly broached, were springing up in London and other large towns, and unscrupulous demagogues by speeches and pamphlets were busily disseminating theories which tended to the subversion of all legitimate authority, he not unnaturally thought it no longer seasonable to invite a discussion of schemes which would be supported in many quarters only, to quote his own words, "as a stepping-stone to ulterior objects, which they dared not avow till their power of carrying them into effect should be by this first acquisition secured." But the alarm which the spread of revolutionary ideas excited in his mind was displayed, not only passively in this abstention from the advocacy of measures the expediency of which must at all times in some degree depend on the tone of their introduction, but also in active measures of repression, some of which were not, indeed, unwarranted by precedent, but others of which can hardly be denied to have been serious inroads on the constitution, infringements of the freedom of opinion and discussion to which all Englishmen are entitled, and one of which was, to say the least, a very perilous extension of a law already sufficiently severe, the statute of treason. If the French had been content with the overthrow of their own government and institutions, much as we should have lamented the indiscriminate rashness and abhorred the atrocities with which their design was carried out, we should still have adhered to the unquestionable maxim, that no nation is justified in interfering in the internal affairs of another. But the Jacobin and Girondin demagogues, who had now the undisputed sway in Paris, did not limit their views to their own country, but openly declared themselves the enemies of all established governments in every country; and the Convention passed a formal resolution in which they proffered "fraternity and assistance" to every people which might be inclined to rise against their governments. Their resolutions were officially communicated to the sympathizing societies in England, and emissaries were secretly encouraged to cross the Channel in the hope of gaining converts. Nor were their exertions barren. Two men were convicted in Scotland of a plot to seize Edinburgh Castle, to massacre the garrison, to imprison the judges, and to rise in arms to compel the government to a change of policy. In London the King was fired at on his way to open Parliament, and on his return his carriage was attacked by a furious mob, and was only protected from serious injury by a troop of the Life Guards. Such outrages proved the existence of a new danger, against which no previous government had ever been called on to provide, and such as, in the opinion of the cabinet, could only be met by novel measures of precaution. The first was directed against the foreign propagators of revolution. The resolutions of the Convention had been promulgated in November, 1792; and at the meeting of Parliament in December, Lord Grenville, as Foreign Secretary of State, introduced in the House of Lords an alien bill, to enable the government to deal in a summary manner with any foreign visitors whose conduct or character might seem to call for its interference. It provided that all foreigners who had arrived in the kingdom since the preceding January should give in a statement of their names and residences; that any one who should arrive in future should furnish an account of his name, his station in life, and his object in visiting England; that the King, by proclamation, order in Council, or sign-manual, might direct all foreigners to reside in such districts as might be thought suitable; that no one might quit the residence in which he first settled without a passport; and that the Secretary of State might order any suspected foreigner to quit the kingdom instantly. The act was to be in operation for twelve months, and Lord Grenville, in introducing it, though he admitted it to be a measure of "rather a novel nature," explained at the same time that it was so far from being new in the powers which it gave, that Magna Charta distinctly recognized "the power and right of the crown to prevent foreigners from entering or residing within the realm." All that was really new was the defining of the manner in which that power should be exercised, since it had been so rarely needed that doubts might exist as to the proper mode of putting it in action. The bill, which was adopted in both Houses by large majorities, is remarkable, among other circumstances, from the fact that its discussion furnished the first instance of a public display of the difference between the two sections of the Opposition, subsequently described by Burke in one of his most celebrated pamphlets as the Old and New Whigs; those whom he called the Old Whigs (the Duke of Portland, Sir Gilbert Elliott, Mr. Windham, not to mention Burke himself) earnestly supporting it, while Lord Lansdowne, Mr. Fox, Mr. Sheridan, and Mr. Grey resisted it with equal zeal. Lord Lansdowne took the ground that it was a suspension of the _Habeas Corpus_ Act; while Fox and Grey denounced it, in more general terms, as a measure "utterly irreconcilable with the principles of the constitution," Mr. Grey apparently referring chiefly to the power given by the bill to the Secretary of State to send any foreigners from the country, which he described as "making the bill a measure of oppression, giving power for the exercise of which no man was responsible." Sir Gilbert Elliott's answer was singularly ingenious. He did not deny that the bill conferred additional power on the crown, though not more than was justified by existing circumstances; but he maintained that the right of giving extraordinary powers to the crown on occasions was so far from being inconsistent with the principles of the constitution, that to grant extraordinary powers in extraordinary emergencies was a part of it essential to the character of a free government. If such powers were at all times possessed by the crown, its authority would be too great for a free government to co-exist with it; but if such could not be at times conferred on the crown, its authority would be too small for its own safety or that of the people. The arguments of the ministers were, no doubt, greatly recommended, both to the Parliament and the people in general, by the notoriety of the fact that foreign agents were in many of our large towns busily, and not unsuccessfully, engaged in propagating what were known as Jacobin doctrines. But, even without that aid, it was clear that every government must, for the common good of all, be at times of extraordinary emergency invested with the power of suspending laws made for ordinary circumstances. And what would be an intolerable evil, if the supreme magistrate took upon himself to exercise it, ceases to be one when the right to exercise it is conferred by the nation itself in Parliament. If the bill did, as was argued, suspend the _Habeas Corpus_ Act, that statute had been enacted by Parliament, and therefore for Parliament, in a case of necessity, to suspend its operation was clearly within the spirit of the constitution. The bills affecting our own fellow-subjects were still more warmly contested. One was known as the Traitorous Correspondence Bill, which, according to Lord Campbell, was suggested by Lord Loughborough, who had lately become Lord Chancellor. The old law of high-treason, enacted in the reign of Edward III., had been in effect greatly mitigated by later statutes, which had made acts to which that character was imputed more difficult of proof, by a stricter definition of what was admissible evidence, and other safeguards; and the practice of the courts had by degrees practically reduced the list of treasons enumerated in the old law, indictments for many of the offences contained in it forbearing to assert that the persons accused had incurred the penalty of high-treason. But this new bill greatly enlarged the catalogue. It made it high-treason to hold any correspondence with the French, or to enter into any agreement to supply them with commodities of any kind, even such as were not munitions of war, but articles of ordinary merchandise, or to invest any money in the French Funds; and it enacted farther that any person who, by "any writing, preaching, or malicious and advised speaking," should encourage such designs as the old statute of Edward made treasonable, should be liable to the penalties of high-treason. Another bill was designed to check the growing custom of holding public meetings, by providing that no meeting, the object of which was to consider any petition to the King or Parliament, or to deliberate on any alleged grievance, should be held without those who convened it, and who must be householders, giving previous notice of it by public advertisement; and empowering any two justices of the peace, at their own discretion, to declare any such meeting an unlawful assembly, and to disperse it by force, if, from the subjects discussed, the language held, or any special circumstances, they should regard it as dangerous. Fox, and those who still adhered to him, resisted almost every clause of these different bills. They maintained that one of the most fundamental maxims of law "in every country calling itself free was, that property was in the highest degree entitled to the protection of the law; and, if so, that the right of disposing of it or investing it in any manner must be considered under the same protection;" that any interference "with ordinary commercial transactions was equally repugnant to the spirit of the constitution;" and, taking a practical view of the question, they warned the minister that such rigorous enactments imposing such extreme penalties would defeat their own end; for "it was a general and true maxim, that excess of punishment for a crime brings impunity along with it; and that no jury would ever find a verdict which would doom a fellow-creature to death for selling a yard of cloth and sending it to France." They protested, too, against inflicting on words, whether written or spoken, penalties which had hitherto been confined to overt acts. And the clauses conferring power on magistrates to prevent or disperse public meetings encountered still more vehement opposition; Fox insisting, with great eloquence, that "public meetings for the discussion of public subjects were not only lawful, but agreeable to the very essence of the constitution; that, indeed, to them, under that constitution, most of the liberties which Englishmen now enjoyed were particularly owing." The people, he maintained, had a right to discuss their grievances. "They had an inalienable right to complain by petition, and to remonstrate to either House of Parliament, or to the King; and to make two magistrates, who might be strong partisans, irresponsible judges whether anything said or done at a meeting had a tendency to encourage sedition, was to say that a free constitution was no longer suitable to us." Pitt justified these measures, partly on the ground of the special and unprecedented danger of the times, as proved by the late attempt on the King's life, and partly by the open avowal of republican doctrines made at the meetings of different societies; partly, also, on the temporary character of the measures, since in each bill a period was fixed after which its operation should expire. And he argued, farther, that, as many of the actions specified in these bills as seditious or treasonable were by many lawyers considered capable of being reached by statutes already existing, though not universally understood, it was "humane, not cruel, to remove doubts, and to prevent men from being ensnared by the ambiguity of old laws." And in May, 1794, he brought in another bill, founded on the report of a secret committee which, in compliance with a royal message, the House of Commons had appointed to investigate the proceedings and objects of certain societies which were known to exist in different parts of the kingdom. In obedience to a Secretary of State's warrant, founded on sworn informations, their books and papers had been seized, and, having been sealed up, were now laid before the House, with the report of the committee that they proved that several of the societies which they named had, ever since the end of the year 1791, been uniformly pursuing a settled design for the subversion of the constitution; one society, in particular, having approved a plan for assembling a Convention, in imitation of the French Assembly sitting under that title, in order to overturn the established government, and to wrest from the Parliament the power which the constitution placed in its hands. To prevent the dissemination of such principles, and to defeat such schemes, Pitt now asked leave to bring in a bill to empower his Majesty--acting, of course, through the Secretary of State--to secure and detain such persons as he should suspect of conspiring against the King's person and government. He admitted that the power which he thus proposed to confer amounted to a suspension of the _Habeas Corpus_ Act in every part of the United Kingdom; nor did he deny that it was an unusually strong measure, but he contended that it was one justified by absolute necessity, by the manifest danger of such a conspiracy as the committee had affirmed to exist to the tranquillity of the nation and the safety of the government. Fox, it may almost be said as a matter of course, opposed the introduction of any such measure; but his opposition was hardly marked by his usual force of argument. He was hampered by the impossibility of denying either the existence of the societies which the committee and the minister had mentioned, or the dangerous character of some of their designs; but he objected to the measures of repression which were proposed, partly on the absence of all attempts at concealment on the part of the promoters of these societies, partly on the contemptible character of the Convention which it was designed to summon, and the impossibility that such an assembly should have the slightest influence. He even made their avowed hostility to the constitution a plea for a panegyric on that constitution, and on the loyal attachment to it evinced by the vast majority of the people; and from that he proceeded to found a fresh argument against the proposed measure, contending that it made a fatal inroad on that very constitution which was so highly valued by the whole nation. He described it as a measure "of infinitely greater mischief than that which it proposed to remedy, since it would give the executive authority absolute power over the personal liberty of every individual in the kingdom." He did not deny that a similar measure had been enacted under William III., again in 1715, and again in 1745; but he contended that "the present peril bore no resemblance to the dangers of those times. This measure went to overturn the very corner-stone of the constitution, and if it passed, there was an end of the constitution of England." The bill was passed in both Houses by very large majorities.[124] It was originally enacted for six months only, but was from time to time renewed till the end of the century. If we take a general survey of all these measures together, as parts of one great defensive scheme for the preservation of the public tranquillity and the general safety of the empire, it may, probably, be thought that, though undoubtedly suspensions of the constitution, they are not open to the charge of being unconstitutional, since they were enacted, not only for the welfare of the people, but with their consent and concurrence, legitimately signified by their representatives in Parliament. It is scarcely consistent with sound reason to contend that the _habeas corpus_, which had been enacted by Parliament, could not be suspended by the authority which had enacted it; that the constitution, which exists for the benefit of the people, could not be suspended by the people; or to deny, if it was in appearance transgressed by these enactments, that it was yet transgressed by strictly constitutional acts, by the decision of the Parliament, to whose power the constitution prescribes no limits. But it is not sufficient that in this point of view these measures may have been defensible. In judging of their statesmanship, it is almost equally to be considered whether they were expedient and politic, whether the emergency or necessity were such as to justify such rigorous methods of repression. It was fairly open to doubt whether some of them, and especially the Traitorous Correspondence and the Seditious Meetings Bills, did not treat as treasonable acts which did not go beyond sedition, and whether so to treat them were not to invest them with an importance which did not belong to them. And on this part of the question the general judgment has, we think, been unfavorable to the government; and it has been commonly allowed that the Chancellor, whose advice on legal subjects the Prime-minister naturally took for his guide, gave him impolitic counsel. In fact, it is well known that these two acts, to a great extent, failed in their object through their excessive severity, several juries having refused to convict persons who were prosecuted for treason, who would certainly not have escaped had they only been indicted for sedition; and it is deserving of remark that these two bills were not regarded with favor by the King himself, if the anecdote--which seems to rest on undeniable authority--be true, that he expressed satisfaction at the acquittal of some prisoners, on the ground that almost any evil would be more tolerable than that of putting men to death "for constructive treason." It must therefore, probably, be affirmed that these two acts, the Treason Act and the Seditious Meetings Act, went beyond the necessity of the case; that they were not only violations of the constitution--which, when the measures are temporary, as these were, are not always indefensible--but that they were superfluous, unjust, and impolitic; superfluous, when they proposed to deal with acts already visitable with punishment by the ancient laws of the kingdom; unjust, when they created new classes of offences; and impolitic, as exciting that kind of disapproval of the acts of government which in many minds has a tendency to excite a spirit of discontent with and resistance to legitimate authority. And, indeed, it must be inferred that such was the light in which these measures were regarded by a statesman who in his general policy was proud to acknowledge himself Mr. Pitt's pupil, as he was also the most skilful and successful of his more immediate successors. Twenty-five years afterward the distress caused by the reaction inevitably consequent on the termination of twenty years of war produced a political excitement scarcely inferior to that with which Pitt had now to deal, and seditious societies and meetings scarcely less formidable; but, as we shall see, Lord Liverpool, taking warning, perhaps, from the mistake into which Mr. Pitt was led on this occasion, though compelled to bring forward new and stern measures of repression, and even to suspend the _Habeas Corpus_ Act for a time, kept strictly within the lines of constitutional precedent, and was careful to avoid confounding sedition with treason. Notes: [Footnote 73: He had been Lord-chamberlain in Lord Rockingham's administration of 1765. He was now Lord-lieutenant of Ireland.] [Footnote 74: In Lord Chatham's or the Duke of Grafton's ministry of 1766, and in the later administration of Lord Rockingham.] [Footnote 75: It may be convenient to take this opportunity of pointing out that, in this administration, Lord Shelburne altered the old, most unreasonable, and inconvenient arrangement by which the departments of the two Secretaries of State were distinguished by the latitude, and called Northern and Southern. By a new division, one took charge of the home affairs, the other of the foreign affairs. And in 1794 a third Secretary was added for War, who, by a very singular arrangement, which continued till very recently, had charge also of the colonies. But, in the year 1855, the Colonial-office was intrusted to a separate minister; and in 1858 a fifth Secretary of State, that for India, was added, on the transfer of the government of that country from the East India Company to the Crown. When there were only two Secretaries of State, the rule was that one should sit in each House. At present it is not _necessary_ that more than one should be a peer, though it is more usual for two to be members of the Upper House. And it is usual also for the Under-secretaries to be members of the House to which the Chief-secretaries do not belong, though this rule is not invariably observed.] [Footnote 76: "Parliamentary History," xxiii., 163.] [Footnote 77: The divisions were: 224 to 208, and 207 to 190.] [Footnote 78: Lord Stanhope, quoting from an unpublished "Life of Lord Barrington," compiled by the Bishop of Durham (meaning, I suppose, Bishop Shute Barrington).--_History of England_, v., 174.] [Footnote 79: Even with the first flush of triumph, the night after the second defeat of Lord Shelburne in the House of Commons, Fox's great friend, Mr. Fitzpatrick, writes to his brother, Lord Ossory: "To the administration it is _cila mors_, but not _victoria loeta_ to us. The apparent juncture with Lord North is universally cried out against."--Lord J. Russell's _Memorials and Correspondence of C.J. Fox_, ii., 18.] [Footnote 80: Lord J. Russell's "Memorials and Correspondence of C.J. Fox," ii., 90.] [Footnote 81: _Ibid_., p. 118.] [Footnote 82: In one division (161 to 137) they had only a majority of twenty-four.] [Footnote 83: In a letter to Lord Northington (Lord-lieutenant of Ireland), dated July 17, Fox himself mentions that not one of his colleagues, except the Duke of Portland and Lord Keppel (First Lord of the Admiralty), approved of it.--_Memoirs of Fox_, ii., 116.] [Footnote 84: November 22 he writes to the Duke of Rutland: "The bill ... is, I really think, the boldest and most unconstitutional measure ever attempted, transferring at one stroke, in spite of all charters and compacts, the immense patronage and influence of the East to Charles Fox, in or out of office."--Stanhope's _Life of Pitt_, i., 140.] [Footnote 85: The whole paper is given by the Duke of Buckingham, "Courts and Cabinets of George III," i., 288, and quoted by Lord Russell in his "Memorials and Correspondence of C. J. Fox," ii., 251. It is endorsed, "Delivered by Lord Thurlow, December 1, 1783. Nugent Temple."] [Footnote 86: "Life of Pitt," i., 148. Lord Stanhope does not pledge himself to these being "the exact words of this commission, but as to its purport and meaning there is no doubt." They are, however, the exact words quoted by Fox in his speech in support of Mr. Baker's resolutions on the 17th.--_Parliamentary History_, xxiv., 207.] [Footnote 87: "Parliamentary History," xxiv., 151-154.] [Footnote 88: 95 to 76. "Strange to say, one of the cabinet ministers, Lord Stormont, president of the council, formed part of the final majority against the bill."--_Life of Pitt_, ii., 154.] [Footnote 89: "Life of Pitt," i., 155.] [Footnote 90: "Lives of the Chancellors," c. clix. Lord Thurlow.] [Footnote 91: "The Grenville Papers," iii., 374. It may, however, be remarked, as tending to throw some doubt on Mr. Grenville's statement, that Lord Campbell asserts that "Lord Mansfield, without entering into systematic opposition, had been much alienated from the court during Lord Rockingham's first administration."--_Lives of the Chief-justices_, ii., 468.] [Footnote 92: Vol. ii., pp. 229-232.] [Footnote 93: It will be seen hereafter that this doctrine was admitted in the fullest degree by Sir Robert Peel in the winter of 1884, when he admitted that his acceptance of office made him alone responsible for the dismissal of Lord Melbourne, though, in fact, he was taken entirely by surprise by the King's act, being in Italy at the time.] [Footnote 94: Lord John Russell, in his "Memorials of Fox" (ii., 253), affirms that "Lord Temple's act was probably known to Pitt;" but Lord Macaulay, in his "Essay on Pitt" (p. 326), fully acquits Pitt of such knowledge, saying that "he could declare, with perfect truth, that, if unconstitutional machinations had been employed, he was no party to them."] [Footnote 95: On Lord Effingham's motion, in condemnation of some of the proceedings of the Commons, which was carried February 4, 1784, by 100 to 53.] [Footnote 96: "Parliamentary History," xxiv., 383-385--debate of January 20, 1784.] [Footnote 97: _Ibid_, p. 283--January 12.] [Footnote 98: _Ibid_., pp. 251-257.] [Footnote 99: "Parliamentary History," xxiv., 478--February 2.] [Footnote 100: _Ibid_., p. 663.] [Footnote 101: "Parliamentary History," xxiv., 687, 695, 699.] [Footnote 102: The numbers were 201 to 189. The week before, on Mr. Powys's motion for a united and efficient administration, the majority had been 20--197 to 177. On a motion made by Mr. Coke, February 3, the majority had been 24--211 to 187. At the beginning of the struggle the majorities had been far larger--232 to 143 on Fox's motion for a committee on the state of the nation, January 12.] [Footnote 103: 191 to 190.] [Footnote 104: From December 19, when Pitt accepted office, to March 24, when the Parliament was dissolved.] [Footnote 105: "Memorials and Correspondence of C.J. Fox," by Earl Russell, ii., 229, 248.] [Footnote 106: _Ibid_., p. 280.] [Footnote 107: That of April, 1831, after the defeat of the Government on General Gascoyne's amendment] [Footnote 108: Lord Macaulay, "Miscellaneous Essays," ii., 330.] [Footnote 109: Lord Macaulay, essay on William Pitt.] [Footnote 110: Alison ("History of Europe," xiii., 971) states the English force in the Netherlands in 1794 at 85,000 men. Lord Stanhope calls the English at Minden 10,000 or 12,000.] [Footnote 111: An eminent living writer (Mr. Leeky, "History of England," ii., 474) quotes with apparent approval another comparison between the father and son, made by Grattan, in the following words: "The father was not, perhaps, so good a debater as his son, but was a much better orator, a greater scholar, and a far greater man." The first two phrases in this eulogy may, perhaps, balance one another; though, when Mr. Lecky admits that "Lord Chatham's taste was far from pure, and that there was much in his speeches that was florid and meretricious, and not a little that would have appeared absurd bombast but for the amazing power of his delivery," he makes a serious deduction from his claim to the best style of eloquence which no one ever made from the speeches of his son. But Grattan's assertion that the man who, as his sister said of him, knew but two books, the "�neid" and the "Faerie Queene," was superior in scholarship to one who, with the exception of his rival, Fox, had probably no equal for knowledge of the great authors of antiquity in either House of Parliament, is little short of a palpable absurdity. We may, however, suspect that Grattan's estimate of the two men was in some degree colored by his personal feelings. With Lord Chatham he had never been in antagonism. On one great subject, the dispute with America, he had been his follower and ally, advocating in the Irish House of Commons the same course which Chatham upheld in the English House of Peers. But to Pitt he had been almost constantly opposed. By Pitt he and his party, whether in the English, or, so long as it lasted, in the Irish Parliament, had been repeatedly defeated. The Union, of which he had been the indefatigable opponent, and to which he was never entirely reconciled, had been carried in his despite; and it was hardly unnatural that the recollection of his long and unsuccessful warfare should in some degree bias his judgment, and prompt him to an undeserved disparagement of the minister by whose wisdom and firmness he had been so often overborne.] [Footnote 112: Massey's "History of England," iii., 447; _confer_ also Green's "History of the English People," vol. iv.] [Footnote 113: Hallam ("Middle Ages," ii., 386, 481), extolling the condition of "the free socage tenants, or English yeomanry, as the class whose independence has stamped with peculiar features both our constitution and our national character," gives two derivations for the name; one "the Saxon _soe_, which signifies a franchise, especially one of jurisdiction;" and the other, that adopted by Bracton, and which he himself prefers, "the French word _soc_, a ploughshare."] [Footnote 114: Lord Colchester's "Diary," i., 68, mentions that the officiating clergyman was Mr. Burt, of Twickenham, who received £500 for his services. Lord John Russell ("Memorials and Correspondence of Fox," ii., 284-389) agrees in stating that the marriage was performed in the manner prescribed by the Common Prayer-book. Mr. Jesse, in his "Life of George III.," ii., 506, gathering, as the present writer can say from personal knowledge, his information from some papers left behind him by the late J.W. Croker, says: "The ceremony was performed by a Protestant clergyman, though in part, apparently, according to the rites of the Roman Catholic Church." Lord John Russell avoids discussing the question whether the marriage involved the forfeiture of the inheritance of the crown, an avoidance which many will interpret as a proof that in his opinion it did. Mr. Massey's language ("History of England," iii., 327) clearly intimates that he holds the same opinion.] [Footnote 115: Russell's "Life of Fox," ii., 187.] [Footnote 116: Fox's private correspondence is full of anticipations that the Regent's first act will be to dismiss Pitt, and to make him minister. In a letter of December 15 he even fixes a fortnight as the time by which he expects to be installed; while Lord Loughborough, who was eager to possess himself of the Great Seal--an expectation in which, though well-founded, he would, as it proved, have found himself disappointed--was led by his hopes to give the Prince counsel of so extraordinary a nature that it is said that the ministers, to whose knowledge it had come, were prepared, if any attempt had been made to act upon it, or even openly to avow it, to send the learned lord to the Tower. ("Diary of Lord Colchester," i., 28.) In an elaborate paper which he drew up and read to the Prince at Windsor, he assured his Royal Highness, speaking as a lawyer, that "the administration of government devolved to him of right. He was bound by every duty to assume it, and his character would be lessened in the public estimation, if he took it on any other ground but right, or on any sort of compromise. The authority of Parliament, as the great council of the nation, would be interposed, not to confer but to declare the right. The mode of proceeding should be that in a short time his Royal Highness should signify his intention to act by directing a meeting of the Privy Council, when he should declare his intention to take upon himself the care of the state, and should at the same time signify his desire to have the advice of Parliament, and order it by proclamation to meet early for the despatch of business.... It is of vast importance in the outset that he should appear to act entirely of himself, and, in the conferences he must necessarily have, not to consult, but to listen and direct." The entire paper is given by Lord Campbell ("Lives of the Chancellors," c. clxx.).] [Footnote 117: Hume's account of this transaction is, that the Duke "desired that it might be recorded in Parliament that this authority was conferred on him from their own free motion, without any application on his part; ... and he required that all the powers of his office should be specified and defined by Parliament."] [Footnote 118: "Parliamentary History," xxvii., 803--speech of Mr. Hardinge, one of the Welsh judges, and M.P. for Old Sarum.] [Footnote 119: I take this report, or abstract, of Lord Camden's speech from the "Lives of the Chancellors," c. cxlvii.] [Footnote 120: "Memorials of Fox," ii., 292.] [Footnote 121: The proceedings of the Irish Parliament on this occasion will be mentioned in the next chapter.] [Footnote 122: Mr. Hallam (iii., 144, ed. 1832) gives a definition of the term "unconstitutional" which seems rather singular: "By unconstitutional, as distinguished from 'illegal,' I mean a novelty of much importance, tending to endanger the established laws." May not the term rather be regarded as referring to a distinct class of acts--to those at variance with the recognized _spirit_ of the constitution or principles of government, with the preservation of the liberties of the people, as expressed or implied in the various charters, etc., but not forbidden by the express terms of any statute?] [Footnote 123: The entry in the "Parliamentary History," November 20, 1788, is: "Both Houses met pursuant to the last prorogation. Later meetings were in consequence of successive adjournments."] [Footnote 124: In the Commons by 183 to 33; in the Lords by 119 to 11.] CHAPTER V. The Affairs of Ireland.--Condition of the Irish Parliament.--The Octennial Bill.--The Penal Laws.--Non-residence of the Lord- lieutenant.--Influence of the American War on Ireland.--Enrolment of the Volunteers.--Concession of all the Demands of Ireland.--Violence of the Volunteers.--Their Convention.--Violence of the Opposition in Parliament: Mr. Brownlow, Mr. Grattan, Mr. Flood.--Pitt's Propositions Fail.--Fitzgibbon's Conspiracy Bill.--Regency Question.--Recovery of the King.--Question of a Legislative Union.--Establishment of Maynooth College.--Lord Edward Fitzgerald.--Arguments for and against the Union.--It passes the Irish Parliament.--Details of the Measure.-- General Character of the Union.--Circumstances which Prevented its Completeness. In describing the condition of Ireland and the feelings of its people, in the latter years of the reign of George II., Mr. Hallam has fixed on the year 1753 as that in which the Irish Parliament first began to give vent to aspirations for equality with the English Parliament in audible complaints; and the Irish House of Commons, finding the kingdom in the almost unprecedented condition of having "a surplus revenue after the payment of all charges," took steps to vindicate that equality by a sort of appropriation bill. There were, however, three fundamental differences between the Parliaments of the two countries, which, above all others, stood in the way of such equality as the Irish patriots desired: the first, that by a law as old as the time of Henry VII., and called sometimes the Statute of Drogheda, from the name of the town in which it was first promulgated, and sometimes Poynings' Act, from the name of Sir Henry Poynings, the Lord-deputy at the time, no bill could be introduced into the Irish Parliament till it had received the sanction of the King and Privy Council in England; the second, that the Parliament lasted for the entire life of the King who had summoned it--a regulation which caused a seat in the House of Commons to be regarded almost as a possession for life, and consequently enormously increased the influence of the patrons of boroughs, some of whom could return a number of members such as the mightiest borough monger in England could never aspire to equal.[125] The third difference, of scarcely inferior importance, was, that the Parliament only sat in alternate years. But, though these arrangements suited the patrons and the members of the House of Commons, it was not strange that the constituencies, whose power over their representatives was almost extinguished by them, regarded them with less complacency, and, at the general election which was the consequence of the accession of George III., pledges were very generally exacted from the candidates that, if elected, they would endeavor to procure the passing of a septennial act like that which had been the law in England ever since the early years of George I. A bill with that object was introduced in 1761, and reported on not unfavorably as to its principle by the English law advisers to whom the Privy Council referred it. But, as if it had been designed to exemplify in the strongest possible manner the national propensity for making blunders, it contained one clause which rendered it not only impracticable but ridiculous. The clause provided that no member should take his seat or vote till his qualification had been proved before the Speaker in a full house. But the Speaker could not be chosen till the members had established their right of voting, so that the whole was brought to a dead-lock, and the bill, if passed, could never have been carried out. In the ministry of 1767, however--that of the Duke of Grafton and Lord Chatham--Lord Halifax was replaced at Dublin Castle by Lord Townsend, who, among his other good qualities, deserves specially honorable mention as the first Lord-lieutenant who made residence in Dublin his rule on principle; for till very lately non-residence had been the rule and residence the exception, a fact which is of itself a melancholy but all-sufficient proof of the absolute indifference to Irish interests shown by all classes of English statesmen. And under his government a bill for shortening Parliaments was passed, though it fixed the possible duration of each Parliament at eight years instead of seven, the variation being made to prevent a general election from being held at the same time in both countries, but, according to common belief, solely in order to keep up a mark of difference between the Irish and English Parliaments. And those who entertained this suspicion fancied they saw a confirmation of it in the retention of the regulation that the Irish Parliament should only sit in alternate years, a practice wholly inconsistent with any proper idea of the duties and privileges of a Parliament such as prevailed on this side of the Channel; since a Parliament whose sessions were thus intermittent could not possibly exercise that degree of supervision over the revenue, either in its collection or its expenditure, which is among its most important duties. And the continued maintenance of this practice must be regarded farther as a proof that the English legislators had not yet learned to consider Ireland as an integral part of the kingdom, entitled in every particular to equal rights with England and Scotland. Indeed, it is impossible for any Englishman to contemplate the history of the treatment of Ireland by the English legislators, whether Kings, ministers, or Parliaments, for more than a century and a half, without equal feelings of shame at the injustice and wonder at the folly of their conduct. Not only was Ireland denied freedom of trade with England (a denial as inconsistent not only with equity but also with common-sense as if Windsor had been refused free trade with London),[126] but Irish manufactures were deliberately checked and suppressed to gratify the jealous selfishness of the English manufacturers. Macaulay, in his zeal for the memory of William III., has not scrupled to apologize for, if not to justify, the measures deliberately sanctioned by that sovereign for the extinction of the Irish woollen manufactures, on the ground that Ireland was not a sister kingdom, but a colony; that "the general rule is, that the English Parliament is competent to legislate for all colonies planted by English subjects, and that no reason existed for considering the case of the colony in Ireland as an exception."[127] There is, perhaps, no passage in his whole work less to his credit. But, if such was the spirit in which an English historian could write of Ireland in the latter half of this present century, it may, perhaps, diminish our wonder at the conduct of our legislators in an earlier generation. The penal laws on the subject of religion were also conceived and carried out in a spirit of extraordinary rigor and injustice. By far the larger portion of the Irish population still adhered to the Roman Catholic faith; but, as far as the negative punishment of restrictions and disabilities could go, its profession was visited as one of the most unpardonable of offences. No Roman Catholic could hold a commission in the army, nor be called to the Bar, nor practise as an attorney; and when it was found that a desire to devote themselves to the study of the law had led many gentlemen to acknowledge a conversion to Protestantism, a statute was actually passed to require them to prove their sincerity by five years' adherence to their new form of religion before they could be regarded as having washed off the defilement of their old heresy sufficiently to be thought worthy to wear a gown in the Four Courts. No Roman Catholic might keep a school; while a strange refinement of intolerance had added a statute prohibiting parents from sending their children to Roman Catholic Schools in a foreign country. And the manner in which the government was carried on was, if possible, worse even than the principle. The almost continual absence of the Lord-lieutenant inevitably left the chief management of the details in the hands of underlings, and the favor of the Castle was only to be acquired by the lowest time-serving, of which those who could influence elections, wealthy and high-born as they for the most part were, were not more innocent than the representatives. No support to government could be looked for from either peer or commoner unless it were purchased by bribes more or less open, which it was equally discreditable to ask and to grant; for one of the worst fruits of the system which had so long reigned throughout the island was the general demoralization of all classes. Mr. Fronde gives George III. himself the credit of being the first person who resolutely desired to see a change of the system, and to "try the experiment whether Ireland might not be managed by open rectitude and real integrity."[128] But his first efforts were baffled by the carelessness or incompetency of the Viceroys, since it was difficult to find any man of ability who would undertake the office. And for some years things went on with very little change, great lords of different ranks having equally no object but that of controlling the Castle and engrossing the patronage of the government, and in not a few instances of also procuring large grants or pensions for themselves, each seeking to build up an individual influence which no Viceroy could ever have withstood, had they been united instead of being separated by mutual jealousies, which enabled him from time to time to play off one against the other. But the war with the North American Colonies, which broke out in 1774, by some of its indirect consequences brought about a great change in the affairs of Ireland. The demand for re-enforcements to the armies engaged in America could only be met by denuding the British islands themselves of their necessary garrisons. No part of them was left so undefended as the Irish coast; and, after a time, the captains of some of the American privateers, learning how little resistance they had to fear, ventured into St. George's Channel, penetrated even into the inland waters, and threatened Carrickfergus and Belfast. In matters of domestic policy it was possible to procrastinate, to defer deciding on relaxations of the penal laws or the removal of trade restrictions, but to delay putting the country into a state of defence against an armed enemy for a single moment was not to be thought of; yet the government was powerless. Of the regular army almost every available man was in, or on his way to, America, and the most absolute necessity, therefore, compelled the Irish to consider themselves as left to their own resources for defence. It was as impossible to levy a force of militia as one of regular troops, for the militia could not be embodied without great expense; and the finances of the whole kingdom had been so mismanaged that money was as hard to procure as men. In this emergency several gentlemen proposed to the Lord-lieutenant to raise bodies of volunteers. The government, though reluctant to sanction the movement, could see no alternative, since the presence of an armed force of some kind was indispensable for the safety of the island. The movement grew rapidly; by the summer of 1779 several thousand men were not only under arms, but were being rapidly drilled into a state of efficiency, and had even established such a reputation for strength, that, when in the autumn the same privateers that had been so bold in Belfast Lough the year before reached the Irish coast, in the hope of plundering Limerick or Galway, they found the inhabitants of the district well prepared to receive them, and did not venture to attempt a descent on any part of the island. And, when the Parliament met in October, some of the members, who saw in the success that could not be denied to have attended their exertions an irresistible means of strengthening the rising pretensions of Ireland to an equality of laws and freedom with England, moved votes of thanks in both Houses to the whole body of Volunteers. They were carried by acclamation, and the Volunteers of the metropolis lined the streets between the Parliament House and the Castle when, according to custom, the members of the two Houses marched in procession to present their addresses to the Lord-lieutenant. Such a recognition of the power of this new force stimulated those members who claimed in a special degree the title of Friends of Ireland to greater exertion. A wiser government than that of Lord North would have avoided giving occasion for the existence of a force which the utter absence of any other had made masters of the situation. The Volunteers even boasted that they had been called into existence by English misgovernment. In the words of one of their most eloquent advocates, "England had sown her laws like dragons' teeth, and they had sprung up as armed men." Ireland began to feel that she was strong, and, not unnaturally desired to avail herself of that strength, which England now could not question, to put forward demands for concessions which in common fairness could not well be denied. In 1778, when Lord North, in the hope of recovering the allegiance of the North American Colonies, brought forward what he termed his conciliatory propositions, the Irish members began to press their demand that the advantages thus offered to the Americans should be extended to their own countrymen also; that the fact of the Irish not having rebelled should not be made a plea for treating them worse than those who had; and in the front of all their requests was one for the abolition of those unjust and vexatious duties which shackled their trade and manufactures. But the jealousy of the English and Scotch manufacturers was still as bitter, and, unhappily, still as influential, as it had proved in the time of William III. And, to humor the grasping selfishness of Manchester and Glasgow, Lord North met the demands of the Irish with a refusal of which every word of his speech on the propositions to America was the severest condemnation, and which he sought to mitigate by some new regulations in favor of the linen trade, to which the English and Scotch manufacturers made no objection, since they had no linen factories. The Irish, in despair, had recourse to non-importation agreements, of which the Americans had set the example, binding themselves not to import nor to use any articles of English or Scotch manufacture with which they could possibly dispense. And the result was, that Lord North yielded to fear what he had refused to justice, and the next year brought in bills to grant the Irish the commercial equality which they demanded. Some of the most oppressive and vexatious of the penal laws were also relaxed; and some restrictions which the Navigation Act imposed on commerce with the West Indies were repealed. But, strange to say, the English ministers still clung to one grievance of monstrous injustice, and steadily refused to allow judicial appointments to be placed on the same footing as in England, and to make the seat of a judge on the bench depend on his own good conduct, instead of on the caprice of a king or a minister. But the manifest reluctance with which the English government had granted this partial relief encouraged the demand for farther concessions. The Irish members, rarely deficient in eloquence or fertility of resource, had been lately re-enforced by a recruit of pre-eminent powers, whom Lord Charlemont had returned for his borough of Moy, Henry Grattan; and, led by him, began to insist that the remaining grievances, to the removal of which the nation had a right, would never be extinguished so long as the supreme power of legislation for the country rested with the English and Scotch Parliament; and that the true remedy was only to be found in the restoration to the Irish Parliament of that independence of which it had been deprived ever since the time of Henry VII. They were encouraged by the visibly increasing weakness of Lord North's administration. Throughout the year 1781 it was evidently tottering to its fall. And on the 22d of February, 1782, Grattan brought forward in the Irish House of Commons a resolution, intended, if carried, to lay the foundation of a bill, "that a claim of any body of men other than the King, Lords, and Commons of Ireland to bind this kingdom is unconstitutional, illegal, and a grievance." This resolution aimed at the abolition of Poynings' Act. Other resolutions demanded the abolition of the "powers exercised by the Privy Council under color of Poynings' Act," and a farther relaxation of the penal laws. So helpless did the government by this time feel itself, that the Attorney-general, who was its spokesman on this occasion, could not venture to resist the principle of these resolutions, but was contented to elude them for the time by objections taken to some of the details; and Grattan gave notice of another motion to bring the question to a more definite decision, which he fixed for the 16th of April. Before that day came Lord North's government had ceased to exist, and had been replaced by Lord Rockingham's, one most influential member of which was the most distinguished of living Irishmen, Mr. Burke, who, while in opposition, had always shown himself a warm supporter of the claims of his countrymen, and was not likely to have his ardor in the cause damped by being placed in a situation where he could procure a friendly hearing to his counsels. Once more they had increased their demands, requiring, besides the removal of the purely political grievances, a surrender of the right of appeal from the Irish to the English courts of law. But their new masters were inclined to grant everything which seemed requisite to the establishment of complete equality between the two kingdoms; and though the new ministry was dissolved in a few months by the premature death of its chief, he lived long enough to carry the repeal of Poynings' Act, the retention of which was now admitted to be not only senseless but mischievous, since the existence of a body invested with nominal dignity, but practically powerless, was calculated not only to provoke discontent, but to furnish a lever for agitation. The repeal was, however, nothing less than the establishment of an entirely new constitution in Ireland. The Irish Parliament, the meetings of which had hitherto been a mere form and farce, was installed in a position of absolute independence, to grant money or to make laws, subject to no other condition than that their legislation should be of a character to entitle it to the royal assent, a condition to which every act of the British Parliament was likewise and equally liable. "Unhappily, as an Irish patriotic writer exclaims on this occasion, it was written in the book of fate that the felicity of Ireland should be short-lived."[129] And a similar shortness of existence was to be the lot of the separate independence of her Parliament. Even while framing instructions for the Lord-lieutenant, in his honest desire to inaugurate a system of just government for Ireland, George III. had warned him on no account to "summon a Parliament without his special command."[130] And, regarded by the light of subsequent events, it can hardly be denied that the prohibition displayed an accurate insight into the real difficulties of the country, and also into the character of the people themselves as the source of at least some of those difficulties. We ought not to judge its leaders too severely. A nation which has been long kept in bondage, and is suddenly presented with liberty, is hardly more able to bear the change than a man immured for years in a dark dungeon can at once endure the unveiled light of the sun; and independence had been granted to the Irish too suddenly for it to be probable that they would at once and in every instance exercise it wisely. All parties were to blame in different degrees. The first danger came from the Volunteers, who, flushed with self-importance, from the belief that it was the imposing show of their strength which had enabled the Parliament to extort Lord Rockingham's concession from the English Houses, now claimed to be masters of the Parliament itself. With the termination of the American war, and the consequent return of the English army to Europe, the reason for their existence had passed away. But they refused to be disbanded, and established a convention of armed delegates, to sit in Dublin during the session of Parliament, and to overawe the Houses into passing a series of measures which they prescribed, and which included a Parliamentary Reform Bill of a most sweeping character. On this occasion, however, the House of Commons acted with laudable firmness. Led by Mr. Fitzgibbon, a man of great powers, and above all suspicion of corruptibility, it spurned the dictation of an unauthorized body, and rejected the Reform Bill, avowedly on the ground of its being presented to it "under the mandate of a military congress;" and the Convention, finding itself powerless to enforce its mandates, dissolved. But the difficulties of the government were not over with the suppression of the Volunteer Convention. The Lord-lieutenant had a harder, because a more enduring, contest to encounter with the Parliament and the patrons of the boroughs. A single act of Parliament may substitute a new law for an old one; but no one resolution or bill has a magical power to extinguish long habits of jobbery and corruption. Members and patrons alike seemed to regard the late concessions as chiefly valuable on account of the increased value which it enabled them to place on their services to the government; and one cannot read without a feeling of shame that one or two of the bishops who were wont to be regarded as the proprietors of the seats for their diocesan cities, were not behind the most nameless lay boroughmongers in the resolution they evinced make a market of their support of the government. The consequence was that the government was unable to feel confident of its power to carry any measure except at a price that it was degrading to pay; while of those few members who were above all suspicion of personal corruption, many were so utterly wrong-headed, and had their minds so filled with unreasonable jealousy for what they called the honor and dignity of Ireland, and with a consequent distrust of England and of all Englishmen, that their honest folly was even a greater obstacle to wise and good government than the mean cunning of the others. There can hardly be a more striking proof of the difficulties to be overcome by a minister than is furnished by a speech made by a gentleman of the highest character, and of deservedly wide influence in the Northern counties, Mr. Brownlow, of Lurgan, one of the members for Armagh, which is quoted by Mr. Froude.[131] Pitt was painfully conscious of the commercial injustice with which hitherto Ireland had always been treated, and in the very first year of his administration he applied himself to the removal of the most mischievous of the grievances of which the Irish merchants complained, adopting to a great extent a scheme which had been put before him by one of the most considerable gentlemen of that body, which was based on the principle of equalization of duties in both countries. It is unnecessary here to enter into the details of the measure which he introduced into the House of Commons. He avowed it to be the commencement of a new system of government for Ireland, "a system of a participation and community of benefits, a system of equality and fairness, which, without tending to aggrandize one portion of the empire or to depress the other, should seek the aggregate interest of the whole; it was a substitute for the system which had hitherto been adopted of making the smaller country completely subordinate to and subservient to the greater, of making the smaller and poorer country a mere instrument for the advantage of the greater and wealthier one. He, therefore, proposed now to create a situation of perfect commercial equality, in which there was to be a community of benefits, and also to some extent a community of burdens." And he urged the House to "adopt that system of trade with Ireland that would tend to enrich one part of the empire without impoverishing the other, while it would give strength to both; that, like mercy, the favorite attribute of Heaven, "'Is twice blessed-- It blesseth him that gives and him that takes.'" It might, he said, be regarded as "a treaty with Ireland by which that country would be put on a fair, equal, and impartial footing with Great Britain, in point of commerce, with respect to foreign countries and our colonies." The community of burdens which his measure would impose on Ireland was this: that whenever the gross hereditary revenue of Ireland should exceed £650,000 (an amount considerably in excess of anything it had ever yet reached), the excess should be applied to the support of the fleet of the United Kingdom. It was, in fact, a burden that could have no existence at all until the Irish trade had become far more flourishing and productive than as yet it had ever been. Yet a measure conceived in such a spirit of liberality, and framed with such careful attention to the minutest interests of Irish trade, Mr. Brownlow did not hesitate to denounce as one "tending to make Ireland a tributary nation to Great Britain. The same terms," he declared, "had been held out to America, and Ireland had equal spirit with America to reject them." He even declared that "it was happy for Mr. Orde" (the Chief Secretary, who had introduced the measure into the Irish House of Commons) "that he was in a country remarkable for humanity. Had he proposed such a measure in a Polish Diet, he would not have lived to carry back an answer to his master. If," he concluded, "the gifts of Britain are to be accompanied with the slavery of Ireland, I will never be a slave to pay tribute; I will hurl back her gifts with scorn." Baffled by such frantic and senseless opposition, Pitt condescended to remodel his measure. In its new form it was not so greatly for the advantage of Ireland. He had been constrained to admit some limitation of his original liberality by the opposition which, it had met with in England also where Fox, at all times an avowed enemy of freedom of trade, had made himself the mouth-piece of the London and Liverpool merchants, who could not see, without the most narrow-minded apprehension, the monopoly of the trade with India and the West Indies, which they had hitherto enjoyed, threatened by the admission of Ireland to its benefits. And now a clause in the second bill, binding the Irish Parliament to reenact the Navigation Laws existing in England, called up an opposition from Grattan[132] as furious as that with which Mr. Brownlow had denounced the original measure. To demand the enactment of the English Navigation Law, he declared, was "a revocation of the constitution;" and his rival, Flood, in his zeal to emulate his popularity with the mob, surpassing him in vehemence, inveighed against the clause, as one intended to make the Irish Parliament a mere register of the English Parliament, "which it should never become". All the arguments brought forward in favor of the measure by the supporters of the government--arguments which, probably, no one would now be found to deny to have been unanswerable--failed to make the slightest impression on a House in which the chief object of each opponent of the ministry seemed to be to outrun his fellows in violence; and eventually the measure fell to the ground, and for fifteen years more Ireland was deprived of the advantages which had been intended for her. And even yet the danger from the Volunteers was not wholly extinguished. Though their Convention had been suppressed, its leaders had only changed their tactics. Under the guidance of a Dublin ironmonger, named Napper Tandy, they now proposed to convene a Congress, to consist, not, as before, of delegates from the Volunteer body, but of persons who should be representatives of the entire nation; and Tandy had even the audacity to issue circulars to the sheriffs of the different counties, to require them, in their official capacity, to summon the people to return representatives to this Congress. The Sheriff of Dublin, a man of the name of O'Reilly, obeyed the requisition; but Fitzgibbon, who, luckily, was now Attorney-general, instantly prosecuted him for abuse of his office. He was convicted, fined, and imprisoned, and his punishment deterred others from following his example. And a rigorous example had become indispensable, since it was known to the government that Tandy and some of his followers were acting in connection with French emissaries, and that their object was the separation of Ireland from England, and, in the minds of some of them, certainly the annexation of the country to France; indeed, on one occasion Fitzgibbon asserted in the House of Commons that he had seen resolutions inviting the French into the country. The government would gladly have established a militia to supersede the Volunteers, but the temper of the Irish Parliament, in its newly-acquired independence, rendered any such attempt hopeless; and Mr. Grattan, with a perversity of judgment which his warmest admirers must find it difficult to reconcile with statesmanship, if not with patriotism, even opposed with extreme bitterness a bill for the establishment of a police for Dublin, though he could not deny that there existed in the city an organized body of ruffians, who made not only the streets but even the dwelling-houses of the more orderly citizens unsafe, by outrages of the worst kind, committed on the largest scale--assaults, plunderings, ravishments, and murders. In the rural districts of the South the disturbances were so criminally violent, and so incessant, that the Lord-lieutenant was compelled to request the presence of some additional regiments from England, as the sole means of preserving any kind of respect for the law; and more than once the mobs of rioters showed themselves so bold and formidable, that the soldiers were compelled to fire in self-defence, and order was not restored but at the cost of many lives. Presently a Conspiracy Bill was passed, and gradually the firmness of the government re-established a certain amount of internal tranquillity. But shortly afterward a crisis arose which, more than the debates on the commercial propositions, or on the Volunteers, or on the police, showed how over-liberal had been the confidence of the English minister who had repealed Poynings' Act, and had bestowed independent authority on the Irish Parliament before the members had learned how to use it. We have seen how keen a contest was excited in the English Parliament by the deranged condition of the King's health in 1788, and the necessity which consequently arose for the appointment of a Regency. Grattan was in London at the time, where he had contracted a personal intimacy with Fox, and had been presented by him to the Prince of Wales, whose graciousness of manner, and profession of adherence to the Whig system of politics, secured his attachment to that party. Grattan was easily indoctrinated by Fox with his theory of the indefeasible claim of the Prince to the Regency as his birthright, and is understood to have promised that the Irish Parliament should adopt that view. The case was one which seemed unprovided for. There was no question but that the law enacted that the sovereign of England should also be the sovereign of Ireland. But no express law of either country contained any such stipulation respecting a Regent; and Grattan conceived that, in the absence of any pre-existing ordinance, it would be easy to contend that the Irish Parliament was the sole judge who the Regent should be, and on what terms he should exercise the royal authority. The Irish Parliament had been prorogued in 1787 to the 5th of February, 1789, the same day on which, after numerous examinations of the physicians in attendance on the royal patient, and after the passing of a series of resolutions enunciating the principles on which the government was proceeding, Pitt introduced the Regency Bill into the English House of Commons, being prepared to conduct it through both Houses with all the despatch that might be consistent with a due observance of all the forms of deliberation. Grattan's object was to anticipate the decision of the English Parliament, so as to avoid every appearance that the Irish Parliament was only following it; and he therefore proposed that the House of Commons should instantly vote an address to the Prince, requesting him to take upon himself the Regency of the kingdom of Ireland, by his own natural right as the heir of the crown; making sure not only that his advice would be taken by those whom he was addressing, but that the House of Lords would not venture to dissent from it. Fitzgibbon, as Attorney-general and spokesman of the government in the Commons, as a matter of course opposed such precipitate action, not only warning his hearers of the folly and danger of taking a step "which might dissolve the single tie which now connected Ireland with Great Britain," but explaining also the whole principle of the constitution of the two kingdoms, so far as it was a joint constitution, in terms which give his speech a permanent value as a summary of its principle and its character. He recalled to the recollection of the House the act of William and Mary, which declares "the kingdom of Ireland to be annexed to the imperial crown of England, and the sovereign of England to be by undoubted right sovereign of Ireland also;" and argued from this that Mr. Grattan's proposal was contrary to the laws of the realm and criminal in the extreme. "The crown of Ireland," as he told his hearers, "and the crown of England are inseparably united, and the Irish Parliament is totally independent of the British Parliament. The first of these positions is your security, the second your freedom, and any other language tends to the separation of the crowns or the subjection of your Parliament. The only security of your liberty is the connection with Great Britain; and gentlemen who risk breaking the connection must make up their minds to a union. God forbid I should ever see that day; but, if the day comes on which a separation shall be attempted, I shall not hesitate to embrace a union rather than a separation." He proceeded to show that, as the Irish Parliament had itself enacted that all bills which passed their two Houses should require the sanction of the Great Seal of England, they actually had no legal power to confer on the Prince of Wales such authority as Grattan advised his being invested with, whatever might be the form of words in which their resolution was couched. He pointed out, also, that if the Irish Parliament should insist on appointing the Prince of Wales Regent before it was known whether he would accept the Regency of England, it was manifestly not impossible "that they might be appointing a Regent for Ireland being a different person from the Regent of England; and in that case the moment a Regent was appointed in Great Britain, he might send a commission under the Great Seal appointing a Lord-lieutenant of Ireland, and to that commission the Regent of Ireland would be bound to pay obedience. Another objection of great force to his mind was, that the course recommended by Grattan would be a formal appeal from the Parliament of England to that of Ireland. It would sow the seeds of dissension between the Parliaments of the two countries. And, indeed, those who were professing themselves advocates for the independence of the Irish crown were advocates for its separation from England." But the House was too entirely under the influence of Grattan's impassioned eloquence for Fitzgibbon's more sober arguments to be listened to. The address proposed by Grattan was carried by acclamation; and the peers were scarcely less unanimous in its favor, one of the archbishops even dilating on "the duty of availing themselves of the opportunity of asserting the total independence of Ireland." Even when, on a second discussion as to the mode in which the address was to be presented to the Prince, Fitzgibbon reported that he had consulted the Chancellor and all the judges, and that they were unanimously of opinion that, till the Regency Bill should be passed in England, the address was not only improper but treasonable, he found his warning equally disregarded. And when the Lord-lieutenant refused to transmit the address to England, on the avowed ground of its illegality, Grattan proposed and carried three resolutions: the first, that the address was not illegal, but that, in addressing the Prince to take on himself the Regency, the Parliament of Ireland had exercised an undoubted right; the second, that the Lord-lieutenant's refusal to transmit the address to his Royal Highness was ill-advised and unconstitutional; the third, that a deputation from the two Houses should go to London, to present the address to the Prince. Mr. Fronde affirms that the deputation, even when preparing to sail for England, was very irresolute and undecided whether to present the address or not, from a reasonable fear of incurring the penalties of treason, to which the lawyers pronounced those who should present it liable. But their courage was not put to the test. As has been already seen, before the end of the month the King's recovery was announced, and the question of a Regency did not occur again till the Irish Parliament had been united to the English. Since Lord Rockingham's concessions, in 1782, the project of a legislative union between the two countries, resembling that which united Scotland to England, had more than once been broached. We have seen it alluded to by Fitzgibbon in the course of these discussions, and it was no new idea. It had been discussed even before the union with Scotland was completed, and had then been regarded in Ireland with feelings very different from those which prevailed at a later period. Ten years after the time of which we are speaking, Grattan denounced the scheme with almost frantic violence. Fitzgibbon (though after the Rebellion he recommended it as indispensable) as yet regarded it only as an alternative which, though he might eventually embrace it, he should not accept without extreme reluctance. But at the beginning of the century all parties among the Protestant Irish had been eager for it, and even the leading Roman Catholics had been not unwilling to acquiesce in it. Unluckily, the English ministers were unable to shake off the influence of the English manufacturers; and they, in another development of the selfish and wicked jealousy which had led them in William's reign to require the suppression of the Irish woollen manufacture, now, in Anne's, rose against the proposal of a legislative union.[133] In blindness which was not only fatal but suicidal also, "they persuaded themselves that the union would make Ireland rich, and that England's interest was to keep her poor;" as if it had been possible for one portion of the kingdom to increase in prosperity without every other portion benefiting also by the improvement. However, in the reign of Anne the union was a question only of expediency or of wisdom. The wide divergence of the two Parliaments on this question of the Regency transformed it into a question of necessity. The King might have a relapse; the Irish Parliament, on a recurrence of the crisis, might re-affirm its late resolutions; might frame another address to the Prince of Wales; and there might be no alternative between seeing two different persons Regents of England and Ireland, or, what would be nearly the same thing, seeing the same person Regent of the two countries on different grounds, and exercising a different authority. And if these proceedings of the Irish Parliament had wrought in the mind of the great English minister a conviction of the absolute necessity of preventing a recurrence of such dangers by the only practicable means open to him--the fusion of it into one body with the English Parliament by a legislative union--the occurrences of the ensuing ten years enforced that conviction with a weight still more irresistible. It has been seen how stirring an influence the revolutionary fever engendered by the overthrow of the French monarchy for a time exerted even over the calmer temper of Englishmen. In Ireland, where, ever since Sarsfield and his brave garrison enlisted under the banner of Louis XIV., a connection more or less intimate with France had been constantly kept up, the events in Paris had produced a far deeper and wider effect. More than one demagogue among the Volunteers had avowed a desire to see the whole country transfer its allegiance from the English to the French sovereign; and this preference was more pronounced after the triumph of democracy in the French capital. For the leaders of the movement, themselves nearly all men of the lowest degree, denounced the Irish nobles with almost as much vehemence as the English connection. Yet Pitt's policy, dictated partly by a spirit of conciliation, and still more by feelings of justice, was gradually removing many of the grievances of which the Irish had real reason to complain. Next to the restrictions on trade, nothing had made such an impression on his mind as the iniquity of the penal laws; and those he proceeded to repeal, encouraging the introduction of bills to throw open the profession of the law to Roman Catholics, to allow them seats on the magistrates' bench and commissions in the army, and to grant them the electoral franchise, a concession which he himself would willingly have extended by admitting them to Parliament itself. But these relaxations of the old Penal Code, important as they were, only conciliated the higher classes of the Roman Catholics. Most of the Roman Catholic prelates, and most of the Roman Catholic lay nobles, proclaimed their satisfaction at what had been done, and their good-will toward the minister who had done it; but the professional agitators were exasperated rather than conciliated at finding so much of the ground on which they had rested cut from beneath their feet. So desirous was Pitt to carry conciliation to the greatest length that could be consistent with safety, that he held more than one conference with Grattan himself; but he found that great orator not very manageable, partly, as it may seem from some of Mr. Windham's letters, through jealousy of Fitzgibbon, who was now the Irish Chancellor,[134] and still more from a desire to propitiate the Roman Catholics, for whom he demanded complete and immediate Emancipation; while Pitt, who was, probably, already resolved on accomplishing a legislative Union, thought, as far as we can judge, that Emancipation should follow, not precede, the Union, lest, if it should precede it, it might prove rather a stumbling-block in the way than a stepping-stone to the still more important measure. It is not very easy to determine what influence the "Emancipation," as it was rather absurdly called,[135] if it had been granted at that time, might have had in quieting the prevailing discontent. With one large party it would probably have increased it, for there was quite as great an inclination to insurrection in Ulster as in Leinster or Munster; and with the Northern Presbyterians animosity to Popery was at least as powerful a feeling as sympathy with the French Republicans. A subsequent chapter, however, will afford a more fitting opportunity for discussing the arguments in favor of or against Emancipation. What seems certain is, that a large party among the Roman Catholics of the lower class valued Emancipation itself principally as a measure to another end--a separation from England. Pitt, meanwhile, hopeless of reconciling the leaders of the different parties--the impulsive enthusiasm of Grattan with the sober, practical wisdom of Fitzgibbon--pursued his own policy of conciliation united with vigor; and one of the measures which he now carried subsists, unaltered in its principle, to the present day. There was no part of the penal laws of which the folly and iniquity were more intolerable than the restrictions which they imposed on education. To a certain extent, they defeated themselves. The clause which subjected to severe penalties a Roman Catholic parent who sent his child abroad to enjoy the benefits of an education which he was not allowed to receive at home, was manifestly almost incapable of enforcement, and the youths designed for orders in the Romish Church had been invariably sent to foreign colleges--some to Douai or St. Omer, in France; some to the renowned Spanish University of Salamanca. But the French colleges had been swept away by the Revolution, which also made a passage to Spain (the greater expense of which had at all times confined that resource to a small number of students) more difficult; and the consequence was, that in 1794 the Roman Catholic Primate, Dr. Troy, petitioned the government to grant a royal license for the endowment of a college in Ireland. Justice and policy were equally in favor of the grant of such a request. For the sake of the whole kingdom, and even for that of Protestantism itself, it was better that the Roman Catholic priesthood should be an educated rather than an ignorant body of men; and, in the temper which at that time prevailed over the western countries of the Continent, it was at least equally desirable that the rising generation should be preserved from the contagion of the revolutionary principles which the present rulers of France were so industrious to propagate. Pitt at once embraced the idea, and in the spring of the next year a bill was introduced into the Irish Parliament by the Chief Secretary, authorizing the foundation and endowment of a college at Maynooth, in the neighborhood of Dublin, for the education of Roman Catholics generally, whether destined for the Church or for lay professions. It is a singular circumstance that the only opposition to the measure came from Grattan and his party, who urged that, as the Roman Catholics had recently been allowed to matriculate and take degrees at Trinity College, though not to share in the endowments of that wealthy institution, the endowment of another college, to be exclusively confined to Roman Catholics, would be a retrograde step, undoing the benefits of the recent concession of the authorities of Trinity; would be "a revival and re-enactment of the principles of separation and exclusion," and an injury to the whole community. For, as he wisely contended, nothing was so important to the well-doing of the entire people as the extinction of the religious animosities which had hitherto embittered the feelings of each Church toward the other, and nothing could so surely tend to that extinction as the uniting the members of both from their earliest youth, in the pursuit both of knowledge and amusement, as school-fellows and playmates. If Mr. Froude's interpretation of the motives of those who influenced Grattan on this occasion be correct, he was unconsciously made a tool of by those whose real object was a separation from England, of the attainment of which they despaired, unless they could unite Protestants and Roman Catholics in its prosecution. The bill, however, was passed by a very large majority, and £9000 a year was appropriated to the endowment of the college. Half a century afterward, as will be seen, that endowment was enlarged, and placed on a more solid and permanent footing, by one of the ablest of Pitt's successors. It was a wise and just measure; and if its success has not entirely answered the expectations of the minister who granted it, its comparative failure has been owing to circumstances which the acutest judgment could not have foreseen. But it seems certain that neither the concession nor the refusal of any demands put forward by any party in Ireland could have prevented the insurrection which broke out shortly afterward. There were two parties among the disaffected Irish--or it should, perhaps, rather be said that two different objects were kept in view by them--one of which, the establishment of a republic, was dearer to one section of the malcontents; separation from England, with the contingency of annexation to France, was the more immediate aim of the other, though the present existence of a republican form of government in France to a great extent united the two. As has been mentioned before, the original movers in the conspiracy were of low extraction, Dublin tradesmen in a small way of business. Napper Tandy was an ironmonger, Wolfe Tone was the son of a coach-maker. But they had obtained a recruit of a very different class, a younger son of the Duke of Leinster, Lord Edward Fitzgerald, a man of very slender capacity, who, at his first entrance into Parliament, when scarcely more than of age, had made himself remarkable by a furious denunciation of Pitt's Irish propositions; had married a natural daughter of the Duke of Orleans, a prince, in spite of his royal birth, one of the most profligate and ferocious of the French Jacobins; and had caught the revolutionary mania to such a degree that he abjured his nobility, and substituted for the appellation which marked his rank the title of "Citizen Fitzgerald." He had enrolled himself in a society known as the United Irishmen, and had gone to France, as its plenipotentiary, to arrange with Hoche, one of the most brilliant and popular of the French generals, a scheme for the invasion of Ireland, in which he promised him that, on his landing, he should be joined by tens of thousands of armed Irishmen. Hoche entered warmly into the plan, was furnished with a splendid army by the Directors, and in December, 1796, set sail for Ireland; but the fleet which carried him was dispersed in a storm; many of the ships were wrecked, others were captured by the British cruisers, and the remnant of the fleet, sadly crippled, was glad to regain its harbors. Two years afterward another invading expedition had still worse fortune. General Humbert, who in 1796 had been one of Hoche's officers, did succeed in effecting a landing at Killala Bay, in Mayo; but he and the whole of his force was speedily surrounded, and compelled to surrender; and a month afterward a large squadron, with a more powerful division of troops, under General Hardy, on board, found itself unable to effect a landing, but fell in with a squadron under Sir John Warren, who captured every ship but two; Wolfe Tone, who was on board one of them, being taken prisoner, and only escaping the gallows by suicide. This happened in October, 1798. But it is difficult to conceive with what object these last expeditions had been despatched from France at all; for in the preceding summer the rebellion of the Irish had broken out, and had been totally crushed in a few weeks;[136] not without terrible loss of life on both sides, nor without the insurgent leaders--though many of them were gentlemen of good birth, fortune, and education, and still more were clergy--showing a ferocity and ingenuity in cruelty which the worst of the French Jacobins had scarcely exceeded; one of the saddest circumstances of the whole rebellion being, that the insurgents, who had burnt men, women, and children alive, who had deliberately hacked others to pieces against whom they did not profess to have a single ground of complaint beyond the fact that they were English and Protestant, found advocates in both Houses of the English Parliament, who declared that the rebellion was owing to the severity of the Irish Viceroy and his chief councillors, who denied that the rebels had solicited French aid, and who even voted against granting to the government the re-enforcements necessary to prevent a revival of the treason. The rebellion was crushed with such celerity as might have convinced the most disaffected of the insanity of defying the power of Great Britain; but it was certain that the spirit which prompted the rebellion was not extinguished, and that, as it had been fed before, so it would continue to be fed by the factious spirit of members of the Irish House of Commons, and of those who could return members,[137] so long as Ireland had a separate Parliament. Not, indeed, that Pitt required the argument in favor of a Union which was thus furnished. The course adopted by the Irish Parliament on the Regency question was quite sufficient to show how great a mistake had been made by the repeal of Poynings' Act. But what the rebellion proved was, that the Union would not admit of an instant's delay; and Pitt at once applied himself to the task of framing a measure which, while it should strengthen England, by the removal of the necessity for a constant watchfulness over every transaction and movement in Ireland, should at the same time confer on and secure to Ireland substantial advantages, such as, without a Union, the English Parliament could scarcely be induced to contemplate. Mr. Hallam, in one of the last chapters of his work,[138] while showing by unanswerable arguments the advantages which Scotland has derived from her Union with England, has also enumerated some of the causes which impeded the minister of the day in his endeavors to render it acceptable to the Scotch members to whom it was proposed. The most apparently substantial of these was the unprecedented character of the measure. No past "experience of history was favorable to the absorption of a lesser state, at least where the government partook so much of the republican form, in one of superior power and ancient rivalry." But, in the case of the present measure, what had thus been a difficulty in the Scotch Union might have been expected to be regarded as an argument in its favor, since the keenest patriots among the Scotch had long been convinced that the Union had brought a vast increase of prosperity and importance to their country, and what was now confessed to have proved advantageous to Scotland might naturally be expected to be equally beneficial to Ireland. Another obstacle had been the fear of the danger to which the Presbyterian Church might be "exposed, when brought thus within the power of a Legislature so frequently influenced by one which held her, not as a sister, but rather a bastard usurper to a sister's inheritance." But here again experience might give her testimony in favor of an Irish Union, since it was incontestable that those apprehensions--which, no doubt, many earnest Scotchmen had sincerely entertained--had not been realized, but that since the Union the Presbyterian Church had enjoyed as great security, as complete independence, and as absolute an authority over its members as in the preceding century; that the Parliament had never attempted the slightest interference with its exercise of its privileges, and that the Church of England had been equally free from the exhibition of any desire to stimulate the Parliament to such action; while the Roman Catholic Church, which had many more adherents in England than the Presbyterian Church had ever had, was quite powerful enough to exact for itself the maintenance of its rights, and the minister was quite willing to grant equal securities to those which, at the beginning of the century, had been thought sufficient for the Church of Scotland. A third reason which our great historical critic puts forward for the disfavor with which the Union was at the time regarded by many high-minded Scotchmen, he finds in "the gross prostitution with which a majority sold themselves to the surrender of their own legislative existence." That similar means were to some extent employed to win over opponents of the government in Ireland cannot, it must be confessed, be denied, though the temptations held out to converts oftener took the shape of titles, promotions, appointments, and court favors than of actual money. The most recent historian of this period--who, to say the least, is not biassed in favor of either the English or Irish government of the period--pronounces as his opinion, formed after the most careful research, that the bribery was on the other side. "Cornwallis and Castlereagh" (the Lord-lieutenant and the Chief Secretary) "both declared it to be within their knowledge that the Opposition offered four thousand pounds, ready money, for a vote. But they name only one man who was purchased, and his vote was obtained for four thousand pounds. From the language of Lord Cornwallis, it is certain that if money was spent by the government in this way it was without his knowledge; but many things may have been done by the inferior agents of the government, and possibly by Castlereagh himself, which they would not venture to lay before the Lord-lieutenant. It appears, however, from the papers which have recently come to light, that the prevalent belief of the Union having been mainly effected by a lavish expenditure of money is not well-founded; still it is certain that some money was expended in this way." Besides actual payment for votes, he adds that a very large sum--a hundred thousand pounds--is said to have been expended in the purchase of seats, the holders of which were, of course, to vote against the measure; and names Lord Downshire as subscribing £5000, Lord Lismore and Mr. White £3000 each, while the government funds were chiefly expended "in engaging[139] young barristers of the Four Courts to write for the Union." But, even if it were true that corruption was employed to the very utmost extent that was ever alleged by the most vehement opponent of the measure and of the government, it may be feared that very few of the last century Irishmen would have been so shocked at it as to consider that fact an objection to the Union, especially, it is sad and shameful to say, among the upper classes. The poorer classes, those who could render no political service to a minister, as being consequently beneath official notice, were unassailed by his temptations; but the demoralization of the men of rank and property was almost universal, and few seats were disposed of, few votes were given, except in return for favors granted, or out of discontent at favors refused. And it cannot be denied that the tendency to political jobbery had not been diminished by the concessions of 1782, if, indeed, it may not be said that the increased importance which those concessions had given to the Irish Parliament had led the members of both Houses to place an increased value on their services. Certainly no previous Lord-lieutenant had given such descriptions of the universality of the demands made on him as were forwarded to the English government by those who held that office in the sixteen years preceding the outbreak of the Rebellion. It is remarkable that the transaction which, as has been said before, may be conceived to have first forced on Pitt's mind the conviction of the absolute necessity of the Union--namely, the course pursued by the Irish Parliament on the Regency Bill--bore a close resemblance to that which, above all other considerations, had made the Scotch Union indispensable, namely, the Act of Security passed by the Scottish Estates in 1703, which actually provided that, on the decease of Queen Anne without issue, the Estates "should name her successor, but should be debarred from choosing the admitted successor to the crown of England, unless such forms of government were settled as should fully secure the religion, freedom, and trade of the Scottish nation."[140] The Scotch Estates, therefore, had absolutely regarded the possible separation of the two kingdoms as a contingency which might become not undesirable; and, though it was too ticklish an argument to bring forward, it may very possibly have occurred to Pitt that a similar vote of the Irish Parliament was not impossible. The claim which Grattan, following Fox, had set up on behalf of the Prince of Wales, was one of an indefeasible right to the Regency; and, as far as right by inheritance went, his claim to the crown, if, or whenever, a vacancy should occur, was far less disputable. But, as has been mentioned in the last chapter, a question had already been raised whether his Royal Highness had not forfeited his right to the succession, and it was quite possible that that question might be renewed. The fact of the Prince's marriage to a Roman Catholic was by this time generally accepted as certain; the birth of the Princess Charlotte gave greater importance to the circumstance than it seemed to have while the Prince remained childless; and, if the performance of the marriage ceremony should be legally proved, and the English law courts should pronounce that the legal invalidity of the marriage did not protect the Prince from the penalty of forfeiture, it was highly probable that the Irish Parliament would take a different view--would refuse, in spite of the Bill of Rights, to regard marriage with a Roman Catholic as a disqualification, but would recognize the Prince of Wales as King of Ireland. Several minor considerations, such as the desirableness of uniformity in the proceedings of the two countries with respect to Money Bills, the Mutiny Act, and other arrangements of parliamentary detail, all pointed the same way; and, on the whole, it may be said that scarcely any of the opponents of the government measure were found to deny its expediency, especially as regarded the interests of Great Britain. The objections which were made were urged on different grounds. In the Irish House of Commons, a member who, though a young man, had already established a very high reputation for professional skill as a barrister, for eloquence equally suited to the Bar and to the Senate, and for sincere and incorruptible patriotism, Mr. Plunkett, took upon himself to deny the competency of the Irish Parliament to pass a bill not only to extinguish its own existence, but to prevent the birth of any future Parliament, and to declare that the act, if it "should be passed," would be a mere nullity, and that no man in "Ireland would be bound to obey it." And, in the English House of Commons, Mr. Grey may be thought to have adopted something of the same view, when he proposed an amendment "to suspend all proceedings on the subject till the sentiments of the people of Ireland respecting that measure could be ascertained." He did not, of course, deny (he was speaking on the 21st of April, 1800) that the bill had been passed by both Houses of the Irish Parliament by considerable majorities.[141] But he contended that that Parliament did not speak the sentiments of the people; and, that being the case, that its voice was of no authority. It is evident that all arguments founded on a denial of the omnipotence of a Parliament, whether English or Irish, are invalid. The question of that omnipotence, as has been seen in a former chapter, had been fully discussed when Mr. Pitt's father denied the power of Parliament to tax the American Colonies; and that question may fairly be regarded as having been settled at that time. It is equally clear that the denial that, on any question whatever, the House of Commons must be taken to speak the sentiments of the constituencies, whether the proposal of such question had been contemplated at the time of their election or not, is the advancement of a doctrine wholly inconsistent with our parliamentary constitution, and one which would practically be the parent of endless agitation and mischief. To expect that the members could pronounce on no new question without a fresh reference to their constituents, would be to reduce them from the position of representatives to that of delegates; such as that of the members of the old States-general, in France, whose early decay is attributed by the ablest political writers in no small degree to the dependence of the members on their constituents for precise instructions. Another argument on which Mr. Grey insisted with great earnestness is worth preserving, though subsequent inventions have destroyed its force; he contended that the example of the Scotch Union did not, when properly considered, afford any argument in favor of an Irish Union, from the difference of situation of the two countries. Scotland was a part of the same island as England; "there was no physical impediment to rapid and constant communication; the relative situation of the two countries was such that the King himself could administer the executive government in both, and there was no occasion for a separate establishment being kept up in each." But the sea lay between England and Ireland, and the delays and sometimes difficulties which were thus interposed rendered it "necessary that Ireland should have a separate government;" and he affirmed that "this was an insuperable bar to a beneficial Union," quoting a saying of Lord Somers, that "if it were necessary to preserve a separate executive government at Edinburgh after the Union, he would abandon the measure." Mr. Grey even denied that the prosperity of Scotland since the Union was mainly attributable to that measure. "It was not the Union; it was the adoption of a liberal policy, the application of a proper remedy to the particular evils under which the country labored, that removed the causes which had impeded the prosperity of Scotland." But this argument was clearly open to the reply that the adoption of that liberal policy had been a direct effect of the Union, and would have been impracticable without it, and was, therefore, a strong inducement to the adoption of a similar Union with Ireland, where the existing evils were at least as great as those which, a century before, had kept down Scotland. Another of his arguments has been remarkably falsified by the event. With a boldness in putting forward what was manifestly, indeed avowedly, a party objection, and which, as such, must be looked upon as somewhat singular, he found a reason for resisting the addition of a hundred Irish members to the British House of Commons in the probability that they would, as a general rule, be subservient to the minister. He instanced "the uniform support which the members for Scotland had given to every act of ministers," and saw in that example "reason to apprehend that the Irish members would become a no less regular band of ministerial adherents." It would be superfluous to point out how entirely contrary the result has been to the prediction. It is, however, beside the purpose of this work to dwell on the arguments by which the minister supported his proposal, or on those with which the Opposition resisted it, whether apparently founded on practical considerations, such as those brought forward by Mr. Grey, or those of a more sentimental character, which rested on the loss of national "dignity and honor," which, it was assumed, would be the consequence of the measure. It seems desirable rather to explain the principal conditions on which the Union was to be effected, as Pitt explained it to the House of Commons in April, 1800. In the preceding year he had confined himself to moving a series of resolutions in favor of the principle, which, though they were adopted by both Houses in England, he did not at that time endeavor to carry farther, since in the Irish House of Commons the utmost exertions of the government could only prevail by a single vote;[142] and he naturally thought such a majority far too slender to justify his relying on it so far as to proceed farther with a measure of such vast importance. But, during the recess, he had introduced some modifications into his original draft of the measure, which, though slight, were sufficient to conciliate much additional support; and the consequence was, that in February of this year both the Irish Houses accepted it by sufficient majorities;[143] and, therefore, he now felt able to lay the details of the measure before the English Parliament. To take them in the order in which he enumerated them, that which had appeared to the Irish Parliament "the first and most important, was the share which the Irish constituencies ought to have in the representation of the House of Commons." On this point, "the Parliament of Ireland was of opinion that the number of representatives for Ireland ought to be one hundred." And he was not disposed to differ from the conclusion to which it had come. He regarded it, indeed, as "a matter of but small importance whether the number of representatives from one part of the united empire were greater or less. If they were enough to make known the local wants, to state the interests and convey the sentiments of the part of the empire they represented, it would produce that degree of general security which would be wanting in any vain attempt to obtain that degree of theoretical perfection about which in modern times they had heard so much." He approved of "the principle which had been laid down upon this part of the subject in the Parliament of Ireland--a reference to the supposed population of the two countries, and to the proposed rate of contribution. The proportion of contribution proposed to be established was seven and a half for Great Britain, and one for Ireland; while in the proportion of population Great Britain was to Ireland as two and a half or three to one;[144] so that the result, on a combination of these two calculations, would be something more than five to one in favor of Great Britain, which was about the proportion which it was proposed to establish between the representation of the two countries." The principle of selection of the constituencies which had been adopted he likewise considered most "equitable and satisfactory for Ireland. The plan proposed was, that the members of the counties and the principal commercial cities should remain entire.... The remaining members were to be selected from those places which were the most considerable in point of population and wealth.... This was the only plan which could be adopted without trenching on the constitution; it introduced no theoretical reforms in the constitution or in the representation of this country; it made no distinction between different parliamentary rights, nor any alteration, even the slightest, in the internal forms of Parliament." Another consideration which he had kept in mind in framing this measure was this: "By the laws of England care had been taken to prevent the influence of the crown from becoming too great by too many offices being held by members of Parliament." And Pitt had no doubt that there would be a general feeling "that some provision ought to be made on this subject" in the arrangements for the new Parliament. At present, among the representatives of the counties and great commercial towns, whose seats were to be preserved in the new united Parliament, there were not above five or six who held offices; and, though it was impossible to estimate the possible number of place-holders with precision, he thought what would he most fair for him to propose would be, that "no more than twenty of the Irish members should hold places, and that if it should happen that a greater number did hold places during pleasure, then those who had last accepted them should vacate their seats." In the House of Peers he proposed that twenty-eight lords temporal of Ireland should have seats in the united Parliament, who should be elected for life by the Peers of Ireland--an arrangement which differed from that which, at the beginning of the century, had been adopted for the representative Peers of Scotland; but he argued, and surely with great reason, that "the choice of Peers to represent the Irish nobility for life was a mode that was more congenial to the general spirit and system of a Peerage than that of their being septennially elected, as the nobility of Scotland were." Of the spiritual Peers, four were to sit in rotation; to the lay Peers a farther privilege was given, which the minister regarded as of considerable, and even constitutional importance. By the articles of the Scotch Union, a Peer, if not chosen as a representative of the Peerage, was not eligible as a candidate for the House of Commons in either England or Scotland. But this bill "reserved a right to the Peers of Ireland who should not be elected to represent their own Peerage, to be elected members of the House of Commons of the united Parliament of Great Britain;" and Pitt urged that this was "a far better mode of treatment than had been adopted for the nobility of Scotland; so that a nobleman of Ireland, if not representing his own order, might be chosen as a legislator by a class of inferior rank, which he was so far from regarding as improper, that he deemed it in a high degree advantageous to the empire, analogous to the practice as well as friendly to the spirit of the British constitution." And he enforced his argument by pointing out with honest pride the advantage which in that respect the spirit and practice of our constitution gave to our nobility over the nobles of other countries. "We know full well," he continued, "the advantage we have experienced from having in this House those who, in the course of descent, as well as in hopes of merit, have had a prospect of sitting in our House of Peers. Those, therefore, who object to this part of the arrangement" (for, as he had previously mentioned, it had been made a subject not only of objection, but of ridicule) "can only do so from the want of due attention to the true character of our constitution, one of the great leading advantages of which is, that a person may for a long time be a member of one branch of the Legislature, and have it in view to become a member of another branch of it. This it is which constitutes the leading difference between the nobility of Great Britain and those of other countries. With us they are permitted to have legislative power before they arrive at their higher stations; and as they are, like all the rest of mankind, to be improved by experience in the science of legislation as well as in every other science, our constitution affords them that opportunity by their being eligible to seats in this House from the time of their majority. This is one of those circumstances which arise frequently in practice, but the advantages of which do not appear in theory till chance happens to cast them before us, and makes them subjects of discussion. These are the shades of the British constitution in which its latent beauties consist;" and he affirmed his conviction that this privilege would prove "an advantage to the nobility of Ireland, and an improvement in the system of representation in the House." It will hardly be denied that the arrangement that the representative Peers of Ireland should enjoy their seats for life did make it desirable that those who were not so elected to the Upper House should be eligible as candidates for a place in the Lower House. Otherwise, those who were not chosen as representatives of the peerage would have been placed in the anomalous and unfair position of being the only persons in the kingdom possessed of the requisite property qualification, and not disqualified by sex or profession, who were absolutely excluded from the opportunity of distinguishing themselves and serving their country in Parliament. How great the practical benefit to the House of Commons and the country the clause he was recommending was calculated to confer, was shown in a remarkable manner the very year of his death, when an Irish Peer was returned to the House of Commons, who, retaining his seat for nearly sixty years as the representative of different constituencies, the University of Cambridge being among the number, during the course of that period rose through a variety of offices to that of Prime-minister, and, as is admitted even by those who dissented most widely from some of his opinions and actions, earned for himself an honorable reputation, as one who had rendered faithful services to the crown, and on more than one occasion had conferred substantial benefits on the country. The arrangements proposed with respect to the Peers were not opposed. But Mr. Grey--generally acting as the spokesman of the Opposition on this question--raised an objection to making so large an addition as that of one hundred new members to the British House of Commons. He repeated his prophecy, made on a previous occasion, of the subserviency to the minister which the Irish members might be expected to exhibit, and therefore moved an amendment to reduce the number of Irish representatives to eighty-five; but, to obviate the discontent which such a reduction might be expected to excite in Ireland, he proposed to diminish the number of English members also, by disfranchising forty "of the most decayed boroughs," a step which would leave the number of members in the new united Parliament as nearly as possible the same as it was before. He found, however, very few to agree with him; his amendment was rejected by 176 to 34; and the minister's proposal was adopted in all its details. Mr. Pitt touched lightly on the next article, which limited the royal prerogative of creating Peers by a provision that the King should never confer any fresh Irish peerage till three peerages should have become extinct. This, again, was a point of difference between the conditions of the Scotch and Irish Unions; since by the terms of the Scotch Union the King was forever debarred from creating any new Scotch peerages. But it was pointed out that the greater antiquity of the Scotch peerages, and the circumstance that in Scotland the titles descended to collateral branches, were calculated to make the extinction of a Scotch peerage an event of very rare occurrence; while the comparative newness (with very few exceptions) of Irish peerages, and the rule by which they are "confined to immediate male descendants," rendered the entire extinction of the Irish peerage probable, "if the power of adding to or making up the number were not given to the crown." Recent legislation has given such importance to the next resolution, that it will be well to quote his precise words: "5. That it would be fit to propose, as the fifth article of union, that the Churches of that part of Great Britain called England and of Ireland shall be united into one Church; and that when his Majesty shall summon a Convocation, the archbishops, bishops, and clergy of the several provinces in Ireland shall be respectively summoned to and sit in the Convocation of the united Church, in the like manner and subject to the same regulations as to election and qualification as are at present by law established with respect to the like orders of the Church of England; and that the doctrine, worship, discipline, and government of the said united Church shall be preserved as now by law established for the Church of England, saving to the Church of Ireland all the rights, privileges, and jurisdictions now thereunto belonging; and that the doctrine, worship, discipline, and government of the Church of Scotland shall likewise be preserved as now by law, and by the Act of Union established for the Church of Scotland; and that the continuance and preservation forever of the said united Church, as the Established Church, of that part of the said United Kingdom called England and Ireland, shall be deemed and taken to be an essential and fundamental article and condition of the Union." Pitt's comment on this article was so brief as to show that he regarded its justice as well as its importance too obvious to need any elaborate justification. He pointed out that that portion of it which related to Convocation had been added by the Irish Parliament, and "would only say on so interesting a subject that the prosperity of the Irish Church could never be permanent, unless it were a part of the Union, to leave as a guard a power to the United Parliament to make some provision in this respect as a fence beyond any act of their own that could at present be agreed on." But, while he thus showed his conviction that the permanent prosperity of the Irish Church was essential to the welfare of the kingdom, he was by no means insensible to the claims of the Roman Catholic Church (as founded not more in policy than in justice) to be placed in some degree on a footing of equality with it; not only by a recognition of the dignity of its ministers, but also by an endowment which should be proportioned to their requirements, and should place them in a position of worldly competence and comfort for which hitherto they had been dependent on their flocks.[145] To use the expression of a modern statesman, he contemplated "levelling up," not "levelling down." Perhaps it may be said that he contemplated levelling up, as the surest and most permanent obstacle to any proposal of levelling down. At the same time it is fair to remark, that the argument which on a recent occasion was so strongly pressed by the champions of the Church, that it was beyond the power of Parliament to repeal what was here declared to be "an essential and fundamental article and condition of the Union," is untenable, on every consideration of the power of Parliament, and, indeed, of common-sense; since it would be an intolerable evil, and one productive of the worst consequences, if the doctrine were admitted that any Parliament could make an unchangeable law and bind its successors forever; and, moreover, since the very words of this article do clearly imply the power of Parliament over the Church, the power asserted, to "make some provision for the permanence of its prosperity," clearly involving a power to make provisions of an opposite character. The expediency or impolicy, the propriety or unrighteousness, of a measure must always depend on the merits of the question itself at the time, and not on the judgment or intentions of legislators of an earlier generation. And advocates weaken instead of strengthening their case when they put forward arguments which, however plausible or acceptable to their own partisans, are, nevertheless, capable of refutation. The next article related to a question of paramount practical importance, and of special interest, since, as has been seen before, there was no subject on which the past legislation of the English Parliament had been so discreditable. But the jealousy of English manufacturers, though it had prevailed over the indifference of William III., who reserved all his solicitude for matters of foreign diplomacy, could find no echo in the large mind and sound commercial and financial knowledge of the modern statesman. He laid it down as the principle of his legislation on this subject--a principle which "he was sure that every gentleman in the House was ready to admit--that the consequence of the Union ought to be a perfect freedom of trade, whether of produce or manufacture, without exception, if possible; that a deviation from that principle ought to be made only when adhering to it might possibly shake some large capital, or materially diminish the effect of the labor of the inhabitants, or suddenly and violently shock the received opinion or popular prejudices of a large portion of the people; but that, on the whole, the communication between the two kingdoms should in spirit be free; that no jealousy should be attempted to be created between the manufacturers of one place or the other upon the subject of 'raw materials' or any other article; for it would surely be considered very narrow policy, and as such would be treated with derision, were an attempt made to create a jealousy between Devonshire and Cornwall, between Lancashire and Durham.... He said, then, that the principle of the Union on this head should be liberal and free, and that no departure from it should ever take place but upon some point of present unavoidable necessity." He was even able to add (and he must have felt peculiar satisfaction in making the statement, since the change in the feelings of the English manufacturers on the subject must have been mainly the fruit of his own teaching, and was a practical recognition of the benefits which they had derived from his commercial policy taken as a whole), that "the English manufacturers did not wish for any protective duties; all they desired was free intercourse with all the world; and, though the want of protective duties might occasion them partial loss, they thought it amply compensated by the general advantage." He even thought the arrangements now to be made "would encourage the growth of wool in Ireland, and that England would be able to draw supplies of it from thence; and he did not fear that there would be trade enough for both countries in the markets of the world, and in the market which each country would afford to the other." The English manufacturers did not, however, acquiesce very cheerfully in every part of his commercial arrangements. On the contrary, against the clause which repealed all prohibitions of or bounties on exportation of different articles grown or manufactured in either country, they petitioned, and even set up a claim, which was granted, to be heard by counsel and to produce witnesses. But Pitt steadily refused the least modification of this part of his measure, not merely on account of its intrinsic reasonableness and justice, but because there was scarcely any condition to which the Irish themselves attached greater importance. An equally important and more difficult matter to adjust to the satisfaction of both Parliaments was the apportionment of the financial burdens between the two nations. It would be tiresome as well as superfluous to enter into minute details; the more so as the arrangement proposed was of a temporary character. After a long and minute discussion, Pitt's appraisement was admitted to come as near to strict fairness and equity as any that could be made; the separate discharge of its public debt already incurred was left to each kingdom; and it was farther settled that for twenty years fifteen parts of the expense of the nation out of seventeen should be borne by Great Britain and two by Ireland. Other articles provided that the laws and courts of both kingdoms, civil and ecclesiastical, should remain in their existing condition, subject, of course, to such alterations as the united Legislature might hereafter deem desirable. The resolutions, when adopted--as they speedily were--were embodied in a bill, which passed through the last stage by receiving the royal assent at the beginning of July. The state of public feeling in Ireland was not yet sufficiently calmed down after the Rebellion for it to be prudent to venture on a general election, and it was, consequently, ordained that the members for the Irish counties and for those Irish boroughs which had been selected for the retention of representation should take their seats in the united Parliament on its next meeting. On the 22d of January, 1801, the united, or, to give it its more proper designation, the Imperial Parliament held its first meeting, being, although in its sixth session, so far regarded as a new Parliament, that the King directed a fresh election of a Speaker. The Union, as thus effected, was so far a vital change in the constitution of both Great Britain and Ireland, that it greatly altered the situation in which each kingdom had previously stood to the other. Till 1782 the position of Ireland toward England had been one of entire political subordination; and, though that had in appearance been modified by the repeal of Poynings' Act, yet no one doubted or could doubt that, whenever the resolutions of the two Parliaments came into conflict, the Irish Parliament would find submission unavoidable. But by the Union that subordination was terminated forever. The character of the Union--of the conditions, that is, on which the two countries were united--was one of perfect and complete equality on all important points, indeed, in all matters whatever, except one or two of minor consequence, where some irremovable difference between them compelled some trifling variations. It was not a connection of domination on the one side and subordination on the other, where every concomitant circumstance might tempt the one to overbearing arrogance, while the other could not escape a feeling of humiliation. It was rather--to quote the eloquent peroration of Pitt, when, in the preceding year, he first introduced the subject to the consideration of the House of Commons--"a free and voluntary association of two great countries, joining for their common benefit in one empire, where each retained its proportionate weight and importance, under the security of equal laws, reciprocal affection, and inseparable interests; and which wanted nothing but that indissoluble connection to render both invincible." On that occasion Pitt had argued, from the great subsequent increase in the population and wealth of Edinburgh and Glasgow, and in the prosperity of the whole country of Scotland, that a similar result might be looked for in Ireland. And the general trade of Ireland, and especially the linen manufacture, within a very few years began to realize his prediction. So that it is strange to find Fox, on the great minister's death, five years afterward, reiterating his disapproval of the Union as a plea for refusing him the appellation of a great statesman.[146] In one point alone the intrigues of a colleague prevented Pitt from carrying out to the full his liberal and enlightened views, and compelled him to leave the Union incomplete in a matter of such pre-eminent importance, that it may be said that all the subsequent disquietudes which have prevented Ireland from reaping the full benefit he desired from the Union are traceable to his disappointment on that subject.[147] We have seen that he contemplated, as a natural and necessary consequence or even part of the Union, an extensive reform of the laws affecting the Roman Catholics. Indeed, the understanding that he was prepared to introduce a measure with that object had no small weight in conciliating in some quarters support to the Act of Union. Accordingly, when describing the arrangements which he had in view for the Church of Ireland, he indicated his intention with sufficient plainness by the statement, that "it might be proper to leave to Parliament an opportunity of considering what might be fit to be done for his Majesty's Catholic subjects;" words which were generally understood to express his feeling, that both justice and policy required the removal of the restrictions which debarred the Roman Catholics from the complete enjoyment of political privileges. But the history and different bearings of that question it will be more convenient to discuss in a subsequent chapter, when we shall have arrived at the time when it was partially dealt with by the ministry of the Duke of Wellington. Notes: [Footnote 125: Mr. Froude says four great families--the Fitzgeralds of Kildare, the Boyles, the Ponsonbys, and the Beresfords--returned a majority of the House of Commons ("English in Ireland," ii., 5); and besides those peers, the arrangement for the Union proved that the influence of the Loftuses and the Hills fell little short of them.] [Footnote 126: Such a system actually had existed in France, where articles of ordinary trade could not be transported from one province to another without payment of a heavy duty; but Colbert had abolished that system in France above one hundred years before the time of which we are speaking.] [Footnote 127: "History of England," vol. v., c. xxiii., p. 57.] [Footnote 128: "The English in Ireland," ii., 39.] [Footnote 129: Fronde's "English in Ireland," ii., 345. He does not name the author whom he quotes.] [Footnote 130: _Ibid_., ii, 42.] [Footnote 131: See p. 164.] [Footnote 132: Mr. Froude imputes to Grattan a singularly base object. "Far from Grattan was a desire to heal the real sores of the country for which he was so zealous. These wild, disordered elements suited better for the campaign in which he engaged of renovating an Irish nationality."--_English in Ireland_, ii., 448. But, however on many points we may see reason to agree with Mr. Froude's estimate of the superior wisdom of Fitzgibbon, we conceive that this opinion is quite consistent with our acquittal of the other of the meanness of deliberately aiming at a continuance of evils, in order to find in them food for a continuance of agitation.] [Footnote 133: Froude, "English in Ireland," i., 304.] [Footnote 134: See especially a letter of Mr. Windham's. quoted by Lord Stanhope ("Life of Pitt," ii., 288).] [Footnote 135: Mr. Archdall, in his place in Parliament, denounced the term as utterly inapplicable. "Emancipation meant that a slave was set free. The Catholics were not slaves. Nothing more absurd had ever been said since language was first abused for the delusion of mankind."] [Footnote 136: The first beginning of the insurrection was at Prosperous, County Kildare, May 24. General Lake dealt it the final blow on Vinegar Hill, June 21.] [Footnote 137: Mr. Sheridan, Mr. Tierney, and Lord William Russell led the denunciations of the government in the English House of Commons. A protest against Pitt's refusal to dismiss the Lord-lieutenant, Lord Camden, the Chancellor Fitzgibbon, and the Commander-in-chief, Lord Carhampton, was signed by the Dukes of Norfolk, Devonshire, and Leinster; Lords Fitzwilliam, Moira, and Ponsonby, "two of them Irish absentees, who were discharging thus their duties to the poor country which supported their idle magnificence."--_The English in Ireland_, iii., 454.] [Footnote 138: "Constitutional History," iii., 451 seq.] [Footnote 139: Massey's "History of England," iv., 397 (quoting the Cornwallis correspondence).] [Footnote 140: Lord Stanhope's "Reign of Queen Anne," p. 89.] [Footnote 141: In the House of Commons by 158 to 115; in the House of Lords, February 10, by 75 to 26.] [Footnote 142: An amendment pledging the House to maintain "an independent Legislature, as established in 1782," was only defeated by 106 to 105.] [Footnote 143: In the House of Commons the majority was 158 to 115; in the House of Lords, 75 to 26.] [Footnote 144: This estimate, which was but a guess, proved very inaccurate. The first census for the United Kingdom, which was taken the next year (1801), showed that Ireland was considerably more populous than its own representatives had imagined. The numbers returned (as given by Alison, "History of Europe," ii., 335, c. ix., sec. 8) were: England..................................... 8,382,484 Wales....................................... 547,346 Scotland.................................... 1,599,068 Army, Navy, etc............................. 470,586 ---------- Total...................................10,999,434 Ireland..................................... 5,396,436 So that the proportion of population in Great Britain, as compared with that of Ireland, only exceeded two to one by an insignificant fraction.] [Footnote 145: See his letter to the King, dated January 31, 1801, quoted by Lord Stanhope in the appendix to vol. iii. of his "Life of Pitt," p. 25.] [Footnote 146: Mr. Fox, called on by Mr. Alexander to explain his expressions (in the debate relative to Mr. Pitt's funeral), by which he had declared his disapprobation of the Union, and his concurrence in opinion with Mr. O'Hara that it ought to be rescinded. Mr. Fox repeated his disapprobation, but disclaimed ever having expressed an opinion or entertained a thought of proposing its repeal, that being now impracticable, though he regretted its ever having been effected.--_Diary of Lord Colchester_, February 17, 1806, ii., 39.] [Footnote 147: It may be remarked that in another respect also political critics have pronounced the Union defective. Archbishop Whately, whose long tenure of office in Ireland, as well as the acuteness and candor which he brought to bear on every subject he discussed, entitle his opinions to most respectful consideration, held this view very strongly. In several conversations which he held with Mr. W.N. Senior, in 1858 and 1862, he condemned the retention of the Lord-lieutenancy as "a half measure," which, however unavoidable at the time when "no ship could be certain of getting from Holyhead to Dublin in less than three weeks," he pronounced "inconsistent with the fusion of the two peoples, which was the object of the Union," and wholly indefeasible "in an age of steam-vessels and telegraphs." And, besides its theoretical inconsistency, he insisted that it produced many great and practical mischiefs, among which he placed in the front "the keeping up in people's minds the notion of a separate kingdom; the affording a hotbed of faction and intrigue; the presenting an image of Majesty so faint and so feeble as to be laughed at and scorned. Disaffection to the English Lieutenancy is cheaply shown, and it paves the way toward disaffection to the English crown." And he imputed its continued retention to "the ignorance which prevails in England of the state of feeling in Ireland."--_Journals and Conversations Relating to Ireland_, by W.N. Senior, ii., 130, 251, and _passim_. And it is worthy of observation that a similar view is expressed by a Scotch writer of great ability, who, contrasting the mode in which Scotland is governed with that which prevails In Ireland, farther denounces the Viceroyalty "as a distinct mark that Ireland is not directly under the sovereignty of Great Britain, but rather a dependency, like India or the Isle of Man."--_Ireland_, by J.B. Kinnear, quoted in the _Fortnightly Review_, April 1, 1881. It is remarkable that in 1850 a bill for the abolition of the office was passed in the House of Commons by a large majority (295 to 70), but was dropped in the House of Lords, chiefly on account of the opposition of the Duke of Wellington. But it is, at all events, plain that the reasons, arising from the difficulty and uncertainty of communication, which made its abolition impossible at the beginning of the century, have passed away with the introduction of steam-vessels and telegraphs. Communication of London with Dublin is now as rapid as communication with Edinburgh, and, that being the case, it is not easy to see how an establishment which has never been thought of for Scotland can be desirable for Ireland.] CHAPTER VI. A Census is Ordered.--Dissolution of Pitt's Administration.--Impeachment of Lord Melville.--Introduction of Lord Ellenborough into the Cabinet.--Abolition of the Slave-trade.--Mr. Windham's Compulsory Training Bill.--Illness of the King, and Regency.--Recurrence to the Precedent of 1788-'89.--Death of Mr. Perceval.--Lord Liverpool becomes Prime-minister.--Question of Appointments in the Household.--Appointment of a Prime-minister. The Union with Ireland was the last great work of Pitt's first administration, and a noble close to the legislation of the eighteenth century. But the last months of the year were also signalized by another enactment, which, though it cannot be said to have anything of a character strictly entitled to the name of constitutional, nevertheless established a practice so valuable as the foundation of a great part of our domestic legislation, that it will, perhaps, hardly be considered foreign to the scope and purpose of this volume to record its commencement. In November, 1800, Mr. Abbott, the member for Helstone, brought in a bill to take a census of the people of the United Kingdom, pointing out not only the general importance of a knowledge of the population of a country in its entire amount and its different classes to every government, but also its special bearing on agriculture and on the means requisite to provide subsistence for the people, on trade and manufactures, and on our resources for war. Such a census as he proposed had been more than once taken in Holland, Sweden, Spain, and even in the United States, young as was their separate national existence; it had been taken once--nearly fifty years previous--in Scotland; and something like one had been furnished in England in the reign of Edward III. by a subsidy roll, and in that of Elizabeth by diocesan returns furnished by the Bishops to the Privy Council.[148] He farther argued for the necessity of such a proceeding from the different notions entertained by men of sanguine or desponding tempers as to the increase or diminution of the population. "Some desponding men had asserted that the population had decreased by a million and a half between the Revolution and Peace of Paris, in 1763; others (of whom the speaker himself was one) believed that, on the contrary, it had increased in that interval by two millions." His motion was unanimously adopted by both Houses; and when the census was taken, its real result furnished as strong a proof of its usefulness as any of the mover's arguments, by the extent of the prevailing miscalculations which it detected. For Mr. Abbott, who had spared no pains to arrive at a correct estimate, while he mentioned that some persons reckoned the population of England and Wales at 8,000,000, pronounced that, according to other statements, formed on a more extensive investigation, and, as it seemed to him, on a more correct train of reasoning, the total number could not be less than 11,000,000. In point of fact, excluding those employed in the army and navy, who were nearly half a million, the number for England and Wales fell short of nine millions.[149] It would be quite superfluous to dilate on the value of the information thus supplied, without which, indeed, much of our subsequent legislation on poor-laws, corn-laws, and all matters relating to rating and taxation, would have been impracticable or the merest guesswork. As was mentioned in the preceding chapter, Pitt found himself unable to fulfil the hopes which, in his negotiations with different parties in Ireland, he had led the Roman Catholics to entertain of the removal of their civil and political disabilities. So rigorous were those restrictions, both in England and Ireland, that a Roman Catholic could not serve even as a private in the militia; and a motion made in 1797 by Mr. Wilberforce--a man who could certainly not be suspected of any leaning to Roman Catholic doctrine--to render them admissible to that service, though it was adopted in the House of Commons, was rejected by the House of Lords. But Pitt, who on that occasion had supported Wilberforce, did not confine his views to the removal of a single petty disability, but proposed to put the whole body of Roman Catholics on a footing of perfect equality with Protestants in respect of their eligibility to every kind of office, with one or two exceptions. And during the autumn of 1800 he was busily engaged in framing the details of his measure, in order to submit it to his royal master in its entirety, and so to avoid disquieting him with a repetition of discussions on the subject, which he knew to be distasteful to him. For, five years before, George III. had consulted the Chief-justice, Lord Kenyon, and the Attorney-general, Sir John Scott (afterward Lord Eldon), on the question whether some proposed concessions to Dissenters, Protestant as well as Roman Catholic, did not "militate against the coronation oath and many existing statutes;" and had received their legal opinion that the tests enacted in the reign of Charles II., "though wise laws, and in policy not to be departed from, might be repealed or altered without any breach of the coronation oath or Act of Union" (with Scotland).[150] Their opinions on the point were the more valuable, since they were notoriously opposed to their political convictions, and might be supposed to have carried sufficient conviction to the royal mind. But his Majesty's scruples were now, unfortunately, revived by the Lord Chancellor, who, strange to say, was himself a Presbyterian; and who treacherously availed himself of his knowledge of what was in contemplation to anticipate the Prime-minister's intended explanations to the King. He fully succeeded in his object of fixing the King's resolution to refuse his assent to the contemplated concessions (which, by a curious confusion of ideas, his Majesty even characterized as "Jacobinical"[151]), though not in the object which he had still more at heart, of inducing the King to regard him as the statesman in the whole kingdom the most deserving of his confidence. The merits of the question will be more appropriately examined hereafter. It is sufficient to say here that Pitt, conceiving himself bound by personal honor as well as by statesman-like duty to persevere in his intended measure, or to retire from an office which no man is justified in holding unless he can discharge its functions in accordance with his own judgment of what is required by the best interests of the state, resigned his post, and was succeeded by Mr. Addington. Addington's ministry was made memorable by the formation of the Northern Confederacy against us, and its immediate and total overthrow by Nelson's cannon; and for the Peace of Amiens, severely criticised in Parliament, as that of Utrecht and every subsequent treaty with a similar object had been, but defensible both on grounds of domestic policy, as well as on that of affording us a much-needed respite from the strain of war; though it proved to be only a respite, and a feverish one, since at the end of two years the war was renewed, to be waged with greater fury than ever. But it was too short-lived for any constitutional questions to arise in it. And when, in 1804, Pitt resumed the government, his attention was too completely engrossed by the diplomatic arrangements by which he hoped to unite all the nations east of the Rhine in resistance to a power whose ever aggressive ambition was a standing menace to every Continental kingdom, for him to be able to spare time for the consideration of measures of domestic policy, except such as were of a financial character. But, though his premature death rendered his second administration shorter than even Addington's, it was not wholly unproductive of questions of constitutional interest. It witnessed a recurrence to that which cannot but be regarded as among the most important privileges of the House of Commons, the right of impeaching a minister for maladministration. A report of a commission appointed for the investigation of the naval affairs of the kingdom had revealed to Parliament a gross misapplication of the public money committed by the Paymaster of the Navy. And, as that officer could not have offended as he had done without either gross carelessness or culpable connivance on the part of the Treasurer of the Navy, Lord Melville, who had since been promoted to the post of First Lord of the Admiralty, the House of Commons ordered his impeachment at the Bar of the House of Lords; the vote being passed in 1805, during Pitt's administration, though the trial did not take place till the year following. In reality, the charge did not impugn Lord Melville's personal honor, on which at first sight it appeared to press hardly, Mr. Whitbread himself, the member for Bedford, who was the chief promoter and manager of the impeachment, admitting that he never imputed to Lord Melville "any participation in the plunder of the public;" and, as Lord Melville was acquitted on every one of the charges brought against him, the case might have been passed over here with the barest mention of it, were it not that Lord Campbell has pointed out the mode of procedure as differing from that adopted in the great trial of Warren Hastings, twenty years before; and, by reason of that difference, forming a model for future proceedings of the same kind, if, unhappily, there should ever be occasion given for a similar prosecution. The credit of the difference Lord Campbell gives to the Chancellor, Lord Erskine, who, "instead of allowing the House of Lords to sit to hear the case a few days in a year, and, when sitting, being converted from a court of justice into a theatre for rhetorical display, insisted that it should sit, like every other criminal tribunal, _de die in diem_, till the verdict was delivered. And he enforced both upon the managers of the House of Commons and on the counsel for the defendant the wholesome rules of procedure established for the detection of crime and the protection of innocence."[152] It is well known that on the trial of Hastings the managers of that impeachment, and most especially Burke, claimed a right of giving evidence such as no court of law would have admitted, and set up what they entitled "a usage of Parliament independent of and contradistinguished from the common law."[153] But on that occasion Lord Thurlow, then Chancellor, utterly denied the existence of any such usage--a usage which, "in times of barbarism, when to impeach a man was to ruin him by the strong hand of power, was quoted in order to justify the most arbitrary proceedings." He instanced the trial of Lord Stafford, as one which "was from beginning to end marked by violence and injustice," and expressed a "hope that in these enlightened days no man would be tried but by the law of the land." We may fairly agree with Lord Campbell, that it is to be hoped that the course adopted by Lord Erskine in this case has settled the principle and mode of procedure for all future time; since certainly the importance of an impeachment, both as to the state interests involved in it, and the high position and authority of the defendant, ought to be considered as reasons for adhering with the greatest closeness to the strict rules of law, rather than for relaxing them in any particular. But, as was natural, the public could spare little attention for anything except the war, and the arrangements made by the minister for engaging in it with effect; the interest which such a state of things always kindles being in this instance greatly inflamed by Napoleon's avowal of a design to invade the kingdom, though it is now known that the preparations of which he made such a parade were merely a feint to throw Austria off her guard.[154] During Addington's administration Pitt had spoken warmly in favor of giving every possible encouragement to the Volunteer movement, and also in support of a proposal made by an independent member, Colonel Crawford, to fortify London; and one of his first measures after his resumption of office was a measure, known as the Additional Force Bill, to transfer a large portion of the militia to the regular army. It was so purely a measure of detail, that it would hardly have been necessary to mention it, had it not been for an objection made to it by the Prime-minister's former colleague, Lord Grenville, and for the reply with which that objection was encountered by the Chief-justice, Lord Ellenborough; the former denouncing it as unconstitutional, since, he declared, it tended to establish a large standing army in time of peace; and Lord Ellenborough, on the other hand, declaring the right of the crown to call out the whole population in arms for the defence of the realm to be so "radical, essential, and hitherto never questioned part of the royal prerogative, that, even in such an age of adventurous propositions, he had not expected that any lord would have ventured to question it."[155] Pitt died in the beginning of 1806, and was succeeded by an administration of which his great rival, Fox, was the guiding spirit while he lived, though Lord Grenville was First Lord of the Treasury, and, after Fox's death, which took place in September, the undisputed Prime-minister. But the formation of the administration was not completed without a step which was at once strongly denounced, not only by the regular Opposition, but by several members of political moderation, as a violation, if not of the letter, at least of the spirit, of the constitution, the introduction of the Lord Chief-justice, Lord Ellenborough, into the cabinet. It was notorious that he was invited to a seat among that body as the representative of a small party, the personal friends of Lord Sidmouth. For the ministry was formed in some degree on the principle of a coalition; Lord Grenville himself having been a colleague of Pitt throughout the greater part of that statesman's first ministry, and as such having been always opposed to Fox; while Lord Ellenborough had been Attorney-general in Addington's administration, which avowedly only differed from Pitt on the single subject of the Catholic question. The appointment was at once made the subject of motions in both Houses of Parliament. In the House of Lords, Lord Bristol, who brought the question forward, denounced "this identification of a judge with the executive government as injurious to the judicial character, subversive of the liberty of the people, and having a direct and alarming tendency to blend and amalgamate those great elementary principles of political power which it is the very object of a free constitution to keep separate and distinct." In the House of Commons, Mr. Canning took a similar objection; and, though he admitted that a precedent for the act might be found in the case of Lord Mansfield who, while Chief-justice, had also been a cabinet minister in the administration of 1757, he argued forcibly that that precedent turned against the ministry and the present appointment, because Lord Mansfield himself had subsequently admitted that "he had infringed the principles of the constitution by acting as a cabinet minister and Chief-justice at the same time." Fox, in reply, relied principally on two arguments. The first was, that "he had never heard of such a thing as the cabinet council becoming the subject of a debate in that House. He had never known of the exercise of the King's prerogative in the appointment of his ministers being brought into question on such grounds as had now been alleged." The second, that "in point of fact there is nothing in the constitution that recognizes any such institution as a cabinet council; that it is a body unknown to the law, and one which has in no instance whatever been recognized by Parliament." He farther urged that as Lord Ellenborough was a privy councillor, and as the cabinet is only a select committee of the Privy Council, he was, "in fact, as liable to be summoned to attend the cabinet, as a privy councillor, as he was in his present situation." The last argument was beneath the speaker to use, since not one of his hearers was ignorant that no member of the Privy Council unconnected with the government ever is summoned to the deliberations of the cabinet; and though, as he correctly stated, "there is no legal record of the members comprising any cabinet," it may safely be affirmed that since July, 1714, when the Duke of Argyll and the Duke of Somerset claimed admission to the deliberations of the ministers, on account of the danger in which the Queen lay, though they admitted that they had received no summons to attend,[156] there has been no instance of any privy councillor attending without a summons; nor, except at the accession of a new sovereign, of summonses being sent to any members of the council except the actual ministers. The second argument was even worse, as being still more sophistical. It might be true that no law nor statute recognized the cabinet as a body distinct from the Privy Council, but it was at least equally true that there was no one who was ignorant of the distinction; that it was, in truth, one without which it would be difficult to understand the organization or working of any ministry. The indispensable function and privilege of a ministry is, to deliberate in concert and in private on the measures to be taken for the welfare of the state; but there could be little chance of concert, and certainly none of privacy, if every one who has ever been sworn a member of the Privy Council had a right to attend all its deliberations. Again, to say that the King's prerogative, as exercised in the choice of his advisers, is a thing so sacred that no abuse of it, or want of judgment shown in its exercise, can warrant a complaint, is inconsistent with every principle of constitutional government, and with every conceivable idea of the privileges of Parliament. In fact, Parliament has claimed a right to interfere in matters apparently touching more nearly the royal prerogative, and it is only in the reign preceding the present reign that hostile comments have been made in Parliament on the appointment of a particular person as ambassador to a foreign power. Yet the post of ambassador is one which might have been supposed to have been farther removed from the supervision of Parliament than that of a minister, an ambassador being in a special degree the personal representative of the sovereign, and the sovereign therefore, having, it might be supposed, a right to a most unfettered choice in such a matter. Stripped of all technicalities, and even of all reference to the manifest possibility of such a circumstance arising as that the Chief-justice, if a member of a cabinet, may have a share in ordering the institution of a prosecution which, as a judge, it may be his lot to try, one consideration which is undeniable is, that a member of a cabinet is of necessity, and by the very nature of his position in it, a party man, and that it is of preeminent importance to the impartiality of the judicial bench, and to the confidence of the people in the purity, integrity, and freedom from political bias of their decisions, that the judges should be exempt from all suspicion of party connection. Lord Campbell even goes the length of saying, what was not urged on either side of either House in these debates, that it was alleged by at least one contemporary writer that Lord Mansfield's position in the cabinet did perceptibly influence some of his views and measures respecting the Press;[157] and, though in both Houses the ministry had a majority on the question of the propriety of the appointment, he records his own opinion[158] that "the argument was all on the losing side;" and that Mr. Fox showed his consciousness that it was so by his "concession that the Chief-justice should absent himself from the cabinet when the expediency of commencing prosecutions for treason or sedition was to be discussed." He adds, also, that "it is said that Lord Ellenborough himself ere long changed his opinion, and, to his intimate friends, expressed deep regret that he had ever been prevailed upon to enter the cabinet." But, if the composition of the cabinet of 1806 has in this respect been generally condemned, on the other hand the annals of that ministry, short-lived as it was, are marked by the enactment of one great measure which has been stamped with universal approbation. It may, perhaps, be said that the existence, promotion, discouragement, or suppression of a branch of trade has no title to be regarded as a constitutional question. But the course which the British Parliament, after a long period of hesitation, has adopted respecting, not only the slave-trade, but the employment of slave-labor in any part of the British dominions, is so intimately connected with the great constitutional principle, that every man, whatever be his race or nation or previous condition, whose foot is once planted on British soil, is free from that moment, that it cannot be accounted a digression to mention the subject here. To our statesmen of Queen Anne's time traffic in slaves was so far from being considered discreditable, that the ministry of that reign prided themselves greatly on what was called the Assiento Treaty with Spain, by which they secured for the British merchants and ship-owners the privilege of supplying the West India Islands with several thousand slaves a year. In 1748 the ministers of George II were equally jealous of the credit of renewing it. It had even on one occasion been decided in the Court of Common Pleas that an action of trover could be maintained for a negro, "because negroes are heathens;" though Chief-justice Holt scouted the idea of being bound by a precedent which would put "a human being on the same footing as an ox or an ass," and declared that "in England there was no such thing as a slave." Subsequent decisions, however, of two Lord Chancellors--Lord Talbot and Lord Hardwicke--were not wholly consistent with the doctrine thus laid down by Holt; and the question could not be regarded as finally settled till 1772, when a slave named Somersett was brought over to England from Jamaica by his master, and on his arrival in the Thames claimed his freedom, and under a writ of _habeas corpus_ had his claim allowed by Lord Mansfield. The master's counsel contended that slavery was not a condition unsanctioned by English law, for villeinage was slavery, and no statute had ever abolished villeinage. But the Chief-justice, in the first place, denied that villeinage had ever been slavery such as existed in the West Indies; and, in the second place, he pronounced that, whether it had been or not, it had, at all events, long ceased in England, and could not be revived. "The air of England has long been too pure for a slave, and every man is free who breathes it. Every man who comes into England is entitled to the protection of English law."[159] But this freedom was as yet held to be only co-extensive with these islands. And for sixty years more our West India Islands continued to be cultivated by the labor of slaves, some of whom were the offspring of slaves previously employed, though by far the greater part were imported yearly from the western coast of Africa. The supply from that country seemed inexhaustible. The native chiefs in time of war gladly sold their prisoners to the captains of British vessels; in time of peace they sold them their own subjects; and, if at any time these modes of obtaining slaves slackened, the captains would land at night, and, attacking the villages on the coast sweep off the inhabitants on board their ships, and at once set sail with their booty. The sufferings of these unhappy captives in what was called the "middle passage"--the passage between their native land and the West India Islands--were for a long time unknown or disregarded, till, early in Pitt's first ministry, they attracted the notice of some of our naval officers who were stationed in the West Indies, and who, on their return to England, related the horrors which they had witnessed or heard of--how, between decks too low to admit of a full-grown man standing upright, the wretched victims, chained to the sides of the ships, lay squeezed together in such numbers, though the whole voyage was within the tropics, that, from the overpowering heat and scantiness of food, it was estimated that two-thirds of each cargo died on the passage. Most fortunately for the credit of England, the fearful trade was brought under the notice of a young member of Parliament singularly zealous in the cause of humanity and religion, endowed with untiring industry and powerful eloquence, and connected by the closest ties of personal intimacy with Mr. Pitt. To hear of such a system of organized murder, as the British officers described the slave-trade to be, was quite sufficient to induce Mr. Wilberforce to resolve to devote himself to its suppression. He laid the case in all its horrors before his friend the Prime-minister, a man as ready as himself to grapple with and extinguish all proved abuses; and Pitt at once promised him all the support which he could give. It was no easy task that he had taken on himself. A year or two before, Burke had applied himself to frame some regulations which he hoped might gradually remove the evil; but, little as he was moved by considerations of popularity or daunted by difficulty, he had abandoned the attempt, as one which would meet with a resistance too powerful to be overcome. Wilberforce was not a bolder man than Burke, but he had no other object to divide his attention, and, therefore, to this one he devoted all his faculties and energies, enlisting supporters in every quarter, seeking even the co-operation of the French government, and opening a correspondence with the French Secretary of State, M. Montmorin, a statesman of great capacity, and, what was far rarer in France, of incorruptible honesty. M. Montmorin, however, though alive to the cruelty of the traffic, was unable to promise him any aid, alleging the fears of the French planters that its abolition "would ruin the French islands. He said that it was one of those subjects upon which the interests of men and their sentiments were so much at variance, that it was difficult to learn what was practicable."[160] Wilberforce had already found that the English merchants were still less manageable. Pitt had entered so fully into his views, that in 1788 he himself moved and carried a resolution pledging the House of Commons to take the slave-trade into consideration in the next session. And another friend of the cause, Sir W. Dobben, brought in a bill to diminish the horrors of the middle passage by proportioning the number of slaves who might be conveyed in one ship to the tonnage of the vessel. But those concerned in the West India trade rose up in arms against even so moderate a measure, and one so clearly demanded by the most ordinary humanity as this. The Liverpool merchants declared that the absence of restrictions on the slave-trade had been the chief cause of the prosperity and opulence of their town, and obtained leave to be heard by counsel against the bill. But Fox united with Pitt on this subject, and the bill was carried. But this was all the practical success which the efforts of the "Abolitionists," as they began to be called, achieved for many years. And even that was not won without extreme difficulty; Lord Chancellor Thurlow opposing it with great vehemence in the House of Lords, as the fruit of a "five days' fit of philanthropy which had just sprung up," and pointing to the conduct of the French government, which, as he asserted, had offered premiums to encourage the trade, as an example that we should do well to follow. It was even said that he had contrived to incline the King himself to the same view; to have persuaded him that the trade was indispensable to the prosperity of our manufacturers, and, in the Chancellor's words, "that it was his royal duty to show some humanity to the whites as well as to the negroes." And more than once, when bills to limit or wholly suppress the trade had been passed by the Commons, the same mischievous influence defeated them in the Lords. The last years of Pitt's first administration were too fully occupied with the affairs of Ireland, negotiations with foreign powers, and the great war with France, to enable him to keep pace with his friend's zeal on the subject. But in his second administration, occupied though he was with a recurrence of the same causes, he found time to prepare and issue an Order in Council prohibiting the importation of slaves into our fresh colonial acquisitions, and the employment of British ships to supply the Dutch, French, and Spanish islands. And this Order in Council paved the way for the total abolition. One of the earliest proceedings of the new ministry was the introduction by the Attorney-general, Sir Arthur Pigott, of a bill to extend and make it perpetual; to forbid "the importation of African negroes by British ships into the colonies conquered by or ceded to us in war; or into the colonies of any neutral state in the West Indies. For at present every state that had colonies in America or the West Indies, and that was not actually at war with us, availed itself of the opportunity of British shipping to carry on the trade." It was resisted as vehemently as any former measure with the same object, and partly on the new ground that it would in no degree stop the trade or diminish the sufferings of the Africans, but would merely rob our ship-owners of their profits to enrich the Americans. Mr. Rose, the member for Christchurch, who advanced this argument, had been a friend of Pitt; yet, though he quoted an instance of a single vessel having buried one hundred and fifty-two slaves on one voyage, he was not ashamed to deprecate the bill, on the plea that "the manufacturers of Manchester, Stockport, and Paisley would be going about naked and starving, and thus, by attending to a supposed claim for relief from a distant quarter, we should give existence to much more severe distress at home." The bill, however, was carried in both Houses, and received the royal assent. And Fox, who supported it warmly in his speech on the third reading (one of the last speeches which he ever addressed to the House), invited Wilberforce to regard it as a stepping-stone to the total abolition of the trade, and as an encouragement to renew his motion for that object; and, though he could not promise him the support of the government as a government, he "could answer for himself and many of his friends who held the highest and most dignified stations in the other House of Parliament. They still felt the question of the total abolition as one involving the dearest interests of humanity, and as one which, should they be successful in effecting it, would entail more true glory upon their administration, and more honor upon their country, than any other transaction in which they could be engaged." Mr. Fox did not live to see the opening of another session; but, when that time came, the position which he had taken up, that the measure of which he had thus promoted the passing was an encouragement to do more, was adopted to its full extent by the chief of his colleagues, Lord Grenville, who, in February, 1807, himself brought forward a motion for the entire abolition of the trade. Though he was Prime-minister, he could not introduce it as a government measure, since two of his colleagues--Lord Sidmouth, the President of the Council, and Mr. Windham, the Secretary of State for the Colonies--opposed it; though the former professed a desire to see the trade abolished, but would have preferred to attain that end by imposing such a tax on every slave imported as should render the trade unprofitable. He had another obstacle also to encounter, in the vehement opposition of some of the princes of the royal family, the Dukes of Clarence and Sussex more especially, who were known to be canvassing against the bill, and were generally understood, in so doing, to be acting in accordance with the views of their elder brothers. But he was confident that by this time the feeling of the whole country was with him on the subject. He was resolved to rest his case on its justice, and therefore consented that the House should hear counsel on the subject, though he resisted their demand to be allowed to call witnesses. Accordingly, counsel were heard for the whole body of West India planters, and for those of one or two separate islands, such as Jamaica and Trinidad; for the Liverpool merchants, and even for the trustees of the Liverpool Docks. But some of their reasonings he even turned against themselves, refusing for a moment to admit "that the profits obtained by robbery could be urged as an argument for the continuance of robbery." He denounced the trade as "the most criminal that any country could be engaged in," and as one that led to other crimes in the treatment of the slaves after they reached the West Indies. He instanced "three most horrible and dreadful murders of slaves" that had been committed in Barbadoes, and quoted the report of Lord Seaforth, governor of the island, who, on investigation, had found that by the law of the colony the punishment affixed to such murders was a fine of eleven pounds. He was opposed by the Duke of Clarence, who directed his remarks chiefly to a defence of the general humanity of the planters; and by Lord Westmoreland, who, in a speech of singular intemperance, denounced the principle of the measure, as one after the passing of which "no property could be rendered safe which could fall within the power of the Legislature." He even made it an argument against the bill that its principle, if carried to its legitimate logical end, must tend to the abolition of slavery as well as of the slave-trade. He objected especially to the assertion in the preamble that the trade was "contrary to justice and humanity," declaring that those words were only inserted in the hope that by them "foreign powers might be humbugged into a concurrence with the abolition," and wound up his harangue by a declaration that, though he should "see the Presbyterian and the prelate, the Methodist and pew-preacher, the Jacobin and the murderer, unite in support of it, he would still raise his voice against it." It must have been more painful to the minister to be opposed by so distinguished an officer as Lord St. Vincent, who resisted the bill chiefly on the ground that "its effect would be to transfer British capital to other countries, which would not be disposed to abandon so productive a trade," and declared that he could only account for Lord Grenville's advocacy of it "by supposing that some Obi man had cast his spell upon him." But the case was too strong for any arguments to prevail which were based solely on the profits of a trade which no one pretended to justify. The bill passed the Lords by a majority of nearly three to one; in the House of Commons, where the opposition was much feebler, by one infinitely larger;[161] and, by a somewhat remarkable coincidence, it received the royal assent on the same day on which Lord Grenville announced to his brother peers that his administration was at an end. Even before the abolition had thus become law, the member for Northumberland, Earl Percy, endeavored to give practical effect to Lord Westmoreland's view, that emancipation of the slaves was its inevitable corollary, by moving for leave to bring in a bill for the gradual abolition of slavery in the British settlements of the West Indies. But he was opposed by Lord Howick,[162] though he had been among the earnest advocates of abolition, partly for the sake of the negroes themselves, and partly on the ground that the Legislature had no "right to interfere with the property of the colonists;" little foreseeing that the measure which he now opposed was reserved for his own administration, and that its accomplishment would be one of its chief titles to the respectful recollection of posterity. And, as the House was presently counted out, the discussion would not have been worth recording, were it not for the opportunity which it gave of displaying the practical and moderate wisdom of Wilberforce himself, who joined in the opposition to Lord Percy's motion. "The enemies of abolition had," he said, "always confounded abolition with emancipation. He and his friends had always distinguished between them; and not only abstained from proposing emancipation, but were ready to reject it when proposed by others. How much soever he looked forward with anxious expectation to the period when the negroes might with safety be liberated, he knew too well the effect which the long continuance of abject slavery produced upon the human mind to think of their immediate emancipation, a measure which at the present moment would be injurious both to them and to the colonies. He and those who acted with him were satisfied with having gained an object which was safely attainable." And they had reason to be satisfied. For the good work thus done was not limited by the extent of the British dominions, vast as they are. The example of the homage thus paid by the Parliament and the nation to justice and humanity was contagious; the principle on which the bill was founded and was carried being such that, for mere shame, foreign countries could hardly persist in maintaining a traffic which those who had derived the greatest profit from it had on such grounds renounced; though our ministers did not trust to their spontaneous sympathies, but made the abolition of the traffic by our various allies, or those who wished to become so, a constant object of diplomatic negotiations, even purchasing the co-operation of some by important concessions, in one instance by the payment of a large sum of money. The conferences and congresses which took place on the re-establishment of peace gave them great facilities for pressing their views on the different governments. And Lord Liverpool's instructions to Lord Castlereagh and the Duke of Wellington, as plenipotentiaries of our government,[163] show the keen interest which he took in the matter, and the skilful manner in which he sought to avail himself of the predominant influence which the exertions and triumphs of this country had given her with every foreign cabinet. Though Portugal was an ally to whom we regarded ourselves as bound by special ties, as well as by the great benefits we had conferred on her, yet, as she clung with the greatest pertinacity to the trade, he did not scruple to endeavor to put a constraint upon her which should compel her submission, and instructed Lord Castlereagh "to induce the Congress to take the best means in their power to enforce it by the adoption of a law, on the part of the several states, to exclude the colonial produce of those countries who should refuse to comply with this system of abolition." And exertions so resolutely put forward were so successful, that the trade was avowedly proscribed by every European nation, though unquestionably it was still carried on by stealth by merchants and ship-owners of more than one country--not, if the suspicions of our statesmen were well founded, without some connivance on the part of their governments. Nor were our efforts in the cause the fitful display of impulsive excitement. We have continued them and widened their sphere as occasions have presented themselves, exerting a successful influence even over unchristian and semi-civilized governments, of which an instance has very recently been furnished, in the assurances given by the Khedive of Egypt to our minister residing at his court, that he is taking vigorous measures to suppress the slave-trade, which is still carried on in the interior of Africa; and that we may believe his promise that he will not relax his exertions till it is extinguished, at least in the region on the north of the equator. Individuals, as a rule, are slow to take warning from the experience of others; slower, perhaps, to follow their example in well-doing. Nations are slower still. When such an example is followed, still more when it is adopted by a general imitation, it will usually be found not only that the good is of a very unusual standard of excellence, but that he or they who have set the example are endowed with a force of character that predisposes others to submit to their influence. And credit of this kind England may fairly claim for the general abolition of the slave-trade; for the condemnation and abolition of the slave-trade had this distinguishing feature, that the idea of such a policy was of exclusively British origin. No nation had ever before conceived the notion that to make a man a slave was a crime. On the contrary, there were not wanting those who, from the recognition of such a condition in the Bible, argued that it was a divine institution. And they who denounced it, and labored for its suppression, had not only inveterate prejudice and long custom to contend with, but found arrayed against them many of the strongest passions that animate mankind. The natural desire for gain united merchants, ship-owners, and planters in unanimous resistance to a measure calculated to cut off from them one large source of profit. Patriotism, which, however misguided, was sincere and free from all taint of personal covetousness, induced many, who wore wholly unconnected either with commerce or with the West Indies, to look with disfavor on a change which not only imperilled the interests of such important bodies of men, but which they were assured by those concerned, must render the future cultivation of estates in the West Indies impracticable; while such a result would not only ruin those valuable colonies, but would also extinguish that great nursery for our navy which was furnished by the vessels at present engaged in the West India trade. To disregard such substantial considerations to risk a loss of revenue, a diminution of our colonial greatness, and a weakening of our maritime power, even while engaged in a formidable war, under no other pressure but that of a respect for humanity and justice, was certainly a homage to those virtues, and also an act of self-denying courage, of which the previous history of the world had furnished no similar example; and it is one of which, in one point of view, the nation may be more justly proud than of the achievements of its wisest statesmen, or the exploits of its most invincible warriors. For it was the act of the nation itself. No previous sentiment of the people paved the way for Pitt's triumphs in finance, for Nelson's or Wellington's victories by sea and land; but the slave-trade could never have been abolished by any parliamentary leader, had not the nation as a whole become convinced of its wickedness, and, when once so convinced, resolved to brave everything rather than persist in it. The merit of having impressed it with this conviction belongs to Mr. Wilberforce, whose untiring, unswerving devotion of brilliant eloquence and practical ability to the one holy object, and whose ultimate success, give him a just claim to be reckoned among the great men of a generation than which the world has seen none more prolific of every kind of greatness. But the nation itself is also entitled to no slight credit for having so rapidly appreciated the force of his teaching, and for having encouraged its representatives to listen to his voice, by the knowledge that by adopting his measures they would be carrying out the wish and determination of the whole people. A measure for the strengthening of the army, introduced by the Secretary of State for War, Mr. Windham, though not one of perpetual force, since it required to be renewed every year, claims a brief mention, from the extent to which one of its clauses trenched on the freedom of the subject, by making every man of military age (from sixteen years old[164] to forty) liable to be compelled to submit to military training for a certain period of each year. "Nothing," to quote the Secretary's words, "was to exempt any man from the general training but his becoming a volunteer at his own expense, the advantage of which would be that he could train himself if he chose, and fight, if occasion required it, in the corps to which he should belong, instead of being liable to fall in among the regulars.... As out of the immense mass of the population some selection must be made, those called on to be trained were to be selected by lot, and he would have the people divided into three classes, between the ages of sixteen and forty: the first class to comprehend all from sixteen to twenty-four; the second, those between twenty-four and thirty-two; and the third, all from thirty-two to forty. The number of days for training he proposed to limit to twenty-six, with an allowance of a shilling a day for each man." The result aimed at by this part of his measure was the creation of a force different from and unconnected with the militia; and he did not conceal his hope that the military habits which it would implant in a large portion of the population would lead many of those thus about to be trained to enlist in the regular army. To the militia itself he paid a high but not undeserved compliment, declaring it "for home service certainly equal to any part of our regular forces, with the single exception that it had never seen actual service." But the militia could not be called on to serve out of the kingdom; and his object was to increase the force available for foreign service--"to see the great mass of the population of the country so far trained as to be able to recruit immediately whatever losses the regular army might sustain in action." As yet, the number of men yearly obtained by recruiting fell far short of the requirements of the service. Wellington had not yet begun that career of victory which created a national enthusiasm for war, and filled our ranks with willing soldiers. And another clause of the same bill was framed in the hope of making the service more acceptable to the peasantry, by limiting the time for which recruits were to be enlisted, and entering men, at first, in the infantry for seven years, or in the cavalry (as that branch of the service required a longer apprenticeship) for ten; then allowing them the option of renewing their engagement for two periods--in the infantry of seven years each, in the cavalry of six and five, with increased pay during each of the two periods, and a small pension for life, if the soldier retired after the second period; and "the full allowance of Chelsea," which was to be farther raised to a shilling a day, for those who elected to serve the whole twenty-one years. This principle the present reign has seen carried to a much greater extent, but the change is too recent for even the most experienced officers to be agreed on its effects. And it is only because of this recent extension of it that this clause is mentioned here. But the enactment of a law of compulsory service was clearly an inroad on the great constitutional right of every man to choose his own employment. At the same time, it is equally clear that it was only such an inroad as under the circumstances, was fully justifiable. It is true that all danger of French invasion had passed away with Trafalgar; but the kingdom was still engaged in a gigantic war, and the necessity of the case--always the supreme law--was so little denied by the Opposition, that their objections to the bill were directed entirely against the clause for limited enlistment, and not against that which abridged the subject's liberty, by compelling him to learn to serve his country in war. The reign of George III., which had now lasted fifty years, was drawing practically to a close. The excitement caused by the ministerial changes in 1801 had already brought on one relapse, though fortunately a very brief one, of the King's malady of 1788; and in the autumn of 1810 the death of the daughter who was supposed to be his especial favorite, the Princess Amelia, produced a recurrence of it, which, though at first the physicians entertained more sanguine hopes of his speedy recovery than on any former occasion, he never shook off. More than one change of ministry had recently taken place. In 1807 Lord Grenville had been compelled, as Pitt had been in 1801, to choose between yielding his opinions on the Catholic question or resigning his office, and had chosen the latter alternative. He had been succeeded for two years by the Duke of Portland; but in 1809 that nobleman had also retired, and had been succeeded by his Attorney-general, Mr. Perceval, the only practising barrister who had ever been so promoted. And he now being Prime-minister, and, as such, forced to make arrangements for carrying on the government during the illness of his sovereign, naturally regarded the course pursued in 1789 as the precedent to be followed. Accordingly, on the 20th of December he proposed for the adoption of the House of Commons the same resolutions which Pitt had carried twenty-two years before--that the King was prevented by indisposition from attending to public business; that it was the duty of Parliament to provide means for supplying the defect of the personal exercise of the royal authority, and its duty also to determine the mode in which the royal assent to the measures necessary could be signified. And he also followed Pitt's example in expressing by letter to the Prince of Wales his conviction that his Royal Highness was a person most proper to be appointed Regent, and explaining at the same time the restrictions which seemed proper to be imposed on his immediate exercise of the complete sovereign authority; though the advanced age at which the King had now arrived made it reasonable that those restrictions should now be limited to a single year. The Prince, on his part, showed that time had in no degree abated his repugnance to those restrictions, and he answered the minister's letter by referring him to that which he had addressed to Pitt on the same subject in 1788. And he induced all his brothers to address to Perceval a formal protest against "the establishment of a restricted Regency," which they proceeded to describe as perfectly unconstitutional, as being contrary to and subversive of the principles which seated their family upon the throne of this realm.[165] Perceval, however, with Pitt's example before him, had no doubt of the course which it was his duty to pursue; and the Opposition also, for the most part, followed the tactics of 1789; the line of argument now adopted by each party being so nearly identical with that employed on the former occasion, that it is needless to recapitulate the topics on which the different speakers insisted; though it is worth remarking that Lord Holland, who, as the nephew of Fox, thought it incumbent on him to follow his uncle's guidance, did on one point practically depart from it. As his uncle had done, he denied the right of the Houses to impose any restrictions on the Prince's exercise of the royal authority; but, at the same time, he consented to put what may be called a moral limitation on that exercise, by adding to an amendment which he proposed to the resolution proposed by the minister an expression of "the farther opinion of the House that it will be expedient to abstain from the exercise of all such powers as the immediate exigencies of the state shall not call into action, until Parliament shall have passed a bill or bills for the future care of his Majesty's royal person during his Majesty's present indisposition." It is remarkable that the leaders of the Opposition were in a great degree stimulated in the line they took by the very same hopes which had animated Fox and his followers in 1789--the expectation that the Regent's first act would be to discard the existing ministry, and to place them in office. But again they were disappointed in their anticipations, of the realization of which they had made so sure that they had taken no pains to keep them secret. They even betrayed their mortification to the world when the Prince's intentions on the subject of the administration became known by the violence of their language in Parliament, some of their party denouncing the employment of the Great Seal to give the royal assent to the bill as "fraud and forgery." Nor, indeed, could the Regent himself, even while expressing his intention to make no change in the administration, lest "any act of his might in the smallest degree have the effect of interfering with the progress of his sovereign's recovery," suppress an expression of dissatisfaction at the recent arrangements, which he considered had placed him in "a situation of unexampled embarrassment," and had created "a state of affairs ill calculated, as he feared, to sustain the interests of the United Kingdom in this awful and perilous crisis, and most difficult to be reconciled to the general principles of the British constitution."[166] There were at this time general and apparently well-founded hopes of the King's recovery. For at intervals during the whole of January the Prime-minister had interviews with his Majesty; and, on the very day on which the bill became law, the King himself mentioned it to Lord Eldon, the Chancellor, and said that he acquiesced in it from perfect confidence in the advice of his physicians, and on the sound judgment and personal attachment of his ministers. For the present, therefore, no change was made in the administration; but when, in the spring of the following year, Mr. Perceval was murdered, the necessity for a new arrangement which this strange and calamitous atrocity forced upon the Regent--who by this time had come into possession of his full authority--led to his making offers of the conduct of affairs to more than one prominent statesman, all of them, as is somewhat remarkable, being peers. And, though the proposals eventually came to nothing, and the negotiations terminated in the re-establishment of the former ministry, with Lord Liverpool at its head, yet some of the causes to which their failure was publicly or generally attributed seem desirable to be recorded, because the first, and that most openly avowed, bears a not very distant resemblance to the complication which baffled Sir Robert Peel's endeavors to form an administration in 1839; and another corresponds precisely to a proposal which, in 1827, the Regent--then King George IV.--did himself make to the Duke of Wellington. It is unnecessary to dwell on the singular manner in which the Regent first professed to give his confidence to Lord Wellesley, then transferred it to Lord Moira,[167] and then to a certain extent included Lord Grey and Lord Grenville in it. Nor would it be profitable to discuss the correctness or incorrectness of the suspicion expressed by Mr. Moore, in his "Life of Sheridan"--who was evidently at this time as fully in the Regent's confidence as any one else--that "at the bottom of all these evolutions of negotiation there was anything but a sincere wish, that the object to which they related should be accomplished."[168] The reason avowed by Lord Grey and Lord Grenville for refusing a share in the projected administration was the refusal of Lord Moira, who had been employed by the Prince to treat with them on the subject, to allow them to make a power of removing the officers at present filling "the great offices of the household"[169] an express condition of their acceptance of ministerial office. They affirmed that a "liberty to make new appointments" to these offices had usually been given on every change of administration. But Lord Moira, while admitting that "the Prince had laid no restriction on him in that respect," declared that "it would be impossible for him to concur in making the exercise of this power positive and indispensable in the formation of the administration, because he should deem it on public grounds peculiarly objectionable." Such an answer certainly gives a great color to Moore's suspicion, since it is hardly possible to conceive that Lord Moira took on himself the responsibility of giving it without a previous knowledge that it would be approved by his royal master. In a constitutional point of view, there can, it will probably be felt, be no doubt that the two lords had a right to the liberty they required. And the very men concerned, the great officers of the household, were evidently of the same opinion, since the chief, Lord Yarmouth, informed Sheridan that they intended to resign, in order that he might communicate that intention to Lord Grey; and Sheridan, who concealed the intelligence from Lord Grey, can hardly be supposed, any more than Lord Moira, to have acted in a manner which he did not expect to be agreeable to the Prince. But, in Canning's opinion, this question of the household was only the ostensible pretext, and not the real cause, of those two lords rejecting the Regent's offers; the real cause being, as he believed, that the Prince himself had already named Lord Wellesley as Prime-minister, and that they were resolved to insist on the right of the Whig party to dictate on that point to the Regent,[170] just as, in 1782, Fox had endeavored to force the Duke of Portland on the King, when his Majesty preferred Lord Shelburne. As has been intimated in a former page, it will be seen hereafter that in 1839 a similar claim to be allowed to remove some of the ladies of the royal household, and the rejection of that claim by the sovereign, prevented Sir R. Peel from forming an administration. And, as that transaction was discussed at some length in Parliament, it will afford a better opportunity for examining the principle on which the claim and practice (for of the practice there is no doubt) rest. For the present it is sufficient to point out the resemblance between the cases. But it is remarkable that, unwarrantable as the pretension of the Whig leaders was to dictate to the Regent to whom he should confide the lead of the government (if, indeed, Canning be correct in his opinion), yet it was not one to which the Regent felt any repugnance, since, in 1827, when Lord Liverpool's illness again left the Treasury vacant, he, being then on the throne as George IV., proposed to the Duke of Wellington to desire the remaining members of the administration themselves to select a chief under whom they would be willing to continue in his service; but the Duke told him that the plan of allowing them to choose their own leader would be most derogatory to his position; that the choice of the Prime-minister was an act which ought to be entirely his own, for that, in fact under the British constitution, it was the only personal act of government which the King of Great Britain had to perform.[171] Though not generally a great authority on constitutional points, we apprehend that the Duke was clearly correct in this view, which, indeed, has been so invariably carried out in practice, that the King's suggestion would not have deserved mention had it not been a king's. So far from it belonging to any individual subject or to any party to name the Prime-minister, to do so is even beyond the province of the Parliament. Parliament decides whether it will give its confidence to an administration of one party or the other; but not only has no vote ever been given on the question whether one member of the dominant party be fitter or not than another to be its head, but we do not remember a single instance of any member of either House expressing an opinion on the subject in his place in Parliament. To do so would be felt by every member of experience to be an infringement on the prerogative of his sovereign; and it may be added that a contrary practice would certainly open the door to intrigue, or, what would be equally bad, a suspicion of intrigue, and would thus inevitably diminish the weight which even the Opposition desire to see a Prime-minister possess both in Parliament and in the country. Notes: [Footnote 148: It is somewhat remarkable that Lord Macaulay, in his endeavors to estimate the population in 1685, takes no notice of any of these details mentioned by Mr. Abbott.] [Footnote 149: The details of this census of 1801 are given in a note in the preceding chapter (see page 185), from which it appears that the entire population of the United Kingdom was in that year 16,395,870. Sir A. Alison, in different chapters of the second part of his "History of Europe," gives returns of subsequent censuses, from the last of which (c. lvi., s. 34, note), it appears that in 1851 the population amounted to 27,511,862. an increase of 11,116,792 in half a century.] [Footnote 150: "Lives of the Chief-justices," by Lord Campbell, iii., 87, life of Lord Kenyon.] [Footnote 151: "What is this," said George III. to Mr. Dundas, "which this young lord (Castlereagh) has brought over, which they are going to throw at my head? The most Jacobinical thing I ever heard of! I shall reckon any man my personal enemy who proposes any such measure."--_Life of Pitt_, iii., 274.] [Footnote 152: "Lives of the Chancellors," c. clxxxiv., life of Lord Erskine.] [Footnote 153: "Lives of the Chancellors," c. clix., life of Lord Thurlow.] [Footnote 154: See "Memoires de M. de Metternich," ii., 156.] [Footnote 155: "Lives of the Chief-justices," iii., 175.] [Footnote 156: Lord Stanhope, "History of England," i., 133.] [Footnote 157: "Lives of the Chief-justices," ii., 451. He is quoting H. Walpole.] [Footnote 158: Ibid., iii., 187.] [Footnote 159: Campbell's "Lives of the Chief-justices," II., 139, life of Chief-justice Holt; and p. 418, life of Lord Mansfield.] [Footnote 160: "Life of Wilberforce," i., 158.] [Footnote 161: The division in the Lords was 100 to 36; in the Commons, 283 to 16.] [Footnote 162: Afterward the Earl Grey of 1831.] [Footnote 163: See especially his "Letters to Lord Castlereagh," p. 814; and "Life of Lord Liverpool," i., 512; ii., 35, 49, 127.] [Footnote 164: Lord Colchester's "Diary," ii., 49, dated April 3, 1806, says eighteen years. But Mr. Windham's speech, as reported in the "Parliamentary History," second series, vi., 685, says sixteen years; and as he divides the ages into three classes, the two latter of which, from twenty-four to thirty-two, and from thirty-two to forty, are of eight years each, it is probable that the younger class was of the same duration, i.e., from sixteen to twenty-four.] [Footnote 165: Lord Colchester's "Diary," ii., 300.] [Footnote 166: See "Diary of Lord Colchester" (Speaker at the time), c. xxxvi., p. 316. He gives the whole of the Prince's letter to Perceval (which had been composed by Sheridan), and of Perceval's reply. The Regency Bill became law February 5, 1811.] [Footnote 167: A letter of Lord Wellesley to Lord Grey, June 4 (given by Pearce, "Life of Lord Wellesley," iii., 270), shows that Lord Moira had been in communication with Lord Grey and Lord Grenville before Lord Wellesley had given up the idea of forming a ministry. And though Lord Grey in his reply (p. 272) expresses his conviction that Lord Moira's letter was not "an authorized communication," but only "a private communication," it is clear that it could not have been written without the privity of the Regent.] [Footnote 168: "Life of Sheridan," ii., 425.] [Footnote 169: Pearce's "Life of Lord Wellesley," iii., 276. All the letters which passed between Lord Grey, Lord Grenville, Lord Moira, and Lord Wellesley himself are given at full length by Mr. Pearce in that chapter.] [Footnote 170: Stapleton's "George Canning and his Times," p. 202.] [Footnote 171: Mr. Stapleton affirms that his Royal Highness actually did adopt this plan on this occasion: "His Royal Highness adopted the unprecedented course of commanding his servants to elect the First-minister. Their choice fell on Lord Liverpool."--_George Canning and his Times_, p. 208. Mr. Stapleton, however, gives no authority for this assertion, and he was probably mistaken, since Lord Liverpool's papers afford no corroboration of it, but rather tend to disprove it.] CHAPTER VII. The Toleration Act.--Impropriety of making Catholic Emancipation (or any other Important Matter) an Open Question.--Joint Responsibility of all the Ministers.--Detention of Napoleon at St. Helena.--Question whether the Regent could Give Evidence in a Court of Law in a Civil Action.--Agitation for Reform.--Public Meetings.--The Manchester Meeting.--The Seditious Meetings Prevention Bill.--Lord Sidmouth's Six Acts. The war was daily becoming of more exciting interest, and, so far as our armies were concerned, was rapidly assuming greater proportions. While the Duke of Portland was still at the head of affairs, Napoleon, by his unprovoked attacks on both the Peninsular kingdoms, had at last opened a field of action to our armies, in which even the most sanguine of those who placed a loyal confidence in the old invincibility of English prowess could not have anticipated the unbroken series of glories which were to reward their efforts. For four years Lord Wellington had contended against all the most renowned marshals of the Empire,[172] driving them back from impregnable lines of defence, defeating them in pitched battles, storming their strongest fortresses, without ever giving them room to boast of even the most momentary advantage obtained over himself; and he was now on the eve of achieving still more brilliant and decisive triumphs, which were never to cease till he had carried his victorious march far into the heart of France itself. At such a time it may well be supposed that the attention of the new ministry was too fully occupied with measures necessary for the conduct of the war to leave it much time for domestic legislation. Yet even its first session was not entirely barren. In the first excitement of the Restoration, when the nation was still exasperated at the recollection of what it had suffered under the triumphant domination of the Puritans, two laws had been framed to chastise them, conceived in a spirit as intolerant and persecuting as had dictated the very worst of their own. One, which was called the Conventicle Act, inflicted on all persons above the age of sixteen, who should be present at any religious service performed in any manner differently from the service of the Church of England, in any meeting-house, where more than five persons besides the occupiers of the house should be present, severe penalties, rising gradually to transportation; and gave a single magistrate authority to convict and to pass sentence on the offenders. The other, commonly known as the Five Mile Act, forbade all ministers, of any sect, who did not subscribe to the Act of Uniformity, and who refused to swear to their belief in the doctrine of passive obedience, from teaching in any school, and from coming within five miles of any city, corporate town, or borough sending members to Parliament, or any town or village in which they themselves had resided as ministers. The latter statute had fallen into complete disuse, and many of the provisions of the former had been relaxed, though magistrates in general construed the relaxing enactments as leaving the relaxations wholly at their discretion to grant or to withhold, and were very much in the habit of withholding or abridging them. Other statutes, such as the Test Act, had subsequently been passed against every sect of Dissenters, though they had only imposed civil disabilities, and had not inflicted penalties. But the new Prime-minister was a man to whose disposition anything resembling persecution was foreign and repugnant. Before his predecessor's unhappy death he had already discussed with him the propriety of abolishing laws conceived in such a spirit; and he no sooner found himself at the head of the government than he prepared a bill to carry out his views. He drew a distinction between the acts inflicting penalties and those which only imposed disabilities. With these latter he did not propose to interfere; but, in July, his colleague, Lord Castlereagh, introduced into the House of Commons a bill to repeal the Conventicle Act and the Five Mile Act altogether, and, when it had passed the Commons, he himself moved its adoption by the Lords, enforcing his recommendation by the argument, that "an enlarged and liberal toleration was the best security to the Established Church, a Church not founded on the exclusion of religious discussion, but, in its homilies, its canons, and all the principles on which it rested, courting the investigation of the Scriptures, upon which it founded its doctrines." At the same time, while urging the repeal of acts which he truly branded as a disgrace to the statute-book, he was not blind to the duty imposed on him, as responsible for the public tranquillity, of taking care that meetings held ostensibly for purposes of devotion should not be perverted to the designs of political agitators; and therefore he provided in the bill for the registration of all places appropriated to religious worship, and for the exaction from "the preachers and teachers in those meetings of some test or security in the oaths to be taken by them." He had already secured the acquiescence of the bishops, and he was equally successful now in winning the assent of the House. The conditions, such as they were, did not prevent the bill from being entirely acceptable to the Non-conformists; and though their spokesman in the House of Commons, Mr. W. Smith, member for Norwich, confessed a wish "that it had gone a little farther, and had granted complete religious liberty," he at the same time expressed sincere gratitude on the part of the Non-conformists for what was thus done for them; and declared that, "as an act of toleration, it certainly was the most complete which had hitherto been passed in this country." It was, in fact, the beginning of the abandonment of that system of discouragement of and hostility to all sects except the Established Church, which had hitherto been regarded by a large party as one of the most essential principles of the constitution. And as such it makes the year 1812 in some respects a landmark in our constitutional history. Mr. Smith had referred to an omission which prevented him from speaking of the bill as complete. He was alluding to the Test and Corporation Acts, which had been passed ten years later than the Conventicle Act, in the same reign of Charles II., and which many of the Non-conformists, and especially the Unitarians, had urged Lord Liverpool to include in this measure of repeal, but which he decided on retaining. As has been said above, he drew a distinction between acts inflicting penalties and those which went no farther than imposing political disabilities, feeling that any relief of Protestant Dissenters from such disabilities must inevitably lead to the concession of a similar indulgence to Roman Catholics, and not being as yet prepared to admit to Parliament the members of a Church which recognized the duty of obedience in any matter to a foreign sovereign; for, as the disabilities had been originally imposed on the Roman Catholics, so they were now maintained on political, not religious, grounds; and even those most opposed to a relaxation of them were careful to explain their resistance to be one which time and a change of circumstances might mitigate.[173] As a fitter opportunity for discussing the question will be afforded by the Duke of Wellington's bill, in 1829, we should not have mentioned it at all in this place, had not Lord Liverpool, in arranging his administration, adopted a mode of dealing with it which, though rather a parliamentary or departmental than a constitutional innovation, was, nevertheless, one of so strange a character as to seem to call for examination. Ever since the formation of Walpole's ministry it had been the invariable rule and practice for all the members of the cabinet to act in concert on all measures of importance, or, indeed it may be said, on all measures on which a Parliamentary vote was taken. But, in arranging his administration after Mr. Perceval's death, Lord Liverpool found it absolutely impossible to form one satisfactory either to the nation or to himself if it were to be confined to members in perfect agreement with himself on the subject of the retention of the disabilities affecting the Roman Catholics; and therefore, in order to be able to form a ministry generally strong and respected, he adopted the strange expedient of allowing every member of it to act independently on this one question. He made it what was called an open question. The arrangement, as explained to the House of Commons by Lord Castlereagh, the ministerial leader of that assembly, was that, "in submission to the growing change of public opinion in favor of those claims (the Roman Catholic claims), and the real sentiments of certain members of the government, it had been resolved upon, as a principle, that the discussion of this question should be left free from all interference on the part of the government, and that every member of that government should in it be left to the free and unbiassed suggestions of his own conscientious discretion." It was an arrangement which secured the Prime-minister the co-operation of Lord Castlereagh himself, and eventually of Mr. Canning; but it failed to propitiate the Opposition, the leader of which in the House of Commons, Mr. Ponsonby, turned it into open ridicule, affirming that "nothing could be more absurd than a cabinet professing to have no opinion on such an important subject." And it must be confessed that Mr. Ponsonby's language on the subject seems the language of common-sense. So far from the importance of a question justifying such an arrangement, that importance appears rather to increase, if possible, the necessity for absolute unanimity in the administration than to diminish it; and on a grave and momentous subject to leave each member of a ministry free to pronounce a separate and different judgment, so that one may resist what his colleague advocates, is to abdicate the functions of government altogether. To permit such liberty was either a proof that the ministry was weak altogether--which it was not--or that its conduct on this question was weak. In either case, it was a mischievous precedent that was thus set;[174] and the fact that it has since been followed in more than one instance, is so far from being any justification of it, that it rather supplies an additional reason for condemning it, as being the cause of wider mischief than if it had been confined to one single question, or had influenced the conduct of one cabinet only. It has often been said that the name "cabinet" is unknown to the law, and that what we call the cabinet is, in fact, only a committee of the Privy Council. As a statement of law the assertion may be correct, but it is certain that for more than a century and a half the constitution has adopted the principle that the cabinet consists of the holders of a certain, to some extent a fluctuating, number of the principal state officers; and, recognizing the responsibility of all for the actions of each member of it, does by that recognition sanction an expectation that on all questions, or at all events on all but those of the most trivial character, they will speak and act with that unanimity which is indispensable, not only to the strength of the government itself, but to its being held in respect by the people; such respect being, indeed, among the most essential elements of its strength. The incidents of the war itself do not belong to a work such as this; but, tantalizing as it must be to an historian of any class to pass over the brilliant series of achievements which gave Britain the glory of being twice[175] the principal agent in the deliverance of Continental Europe, the glories of Salamanca, Victoria, Orthes, and Waterloo must be left to other writers, who, it is not unpatriotic to hope, may never again have similar cause for exulting descriptions. But out of the crowning triumph of Waterloo a difficulty arose which, though it may be difficult to characterize the principle on which it was settled, since it was not strictly a question of constitutional, international, or military law; and though the circumstances were so peculiar that the conclusion adopted is never likely to be referred to as a precedent, seems still deserving of a brief mention, especially as an act of Parliament was passed to sanction the decision of the cabinet. Baffled by the vigilance of our cruisers in every attempt to escape from one of the western ports of France to America, Napoleon was at last compelled to surrender himself to a British squadron. But, though he was our prisoner, the Prime-minister considered us, in all our dealings with him, as so bound by engagements to our allies, that he was to be regarded as "the common prisoner of all, so far that we should not give him up or release him without the joint consent of all." The question was full of difficulty. There were, probably, very few persons in this or any other country who did not coincide in the impropriety of releasing him, and so putting it in his power once more to rekindle a war in Europe. But it was a political view of the case, founded on a consideration of what was required by the tranquillity of Europe; and it was not easy to lay down any legal ground to justify the determination. Some regarded him as a French subject, and, if that view were correct, he could hardly be detained by us as a prisoner of war after we had concluded a treaty of peace with France. But, again, it seemed to some, the Lord Chancellor being among them, a questionable point whether in the last campaign we had been at war with France; whether, on the contrary, we had not assumed the character of an ally of France against him. And, on the supposition that we had been at war with France, a second question was raised by Lord Ellenborough, the Chief-justice, "what rights result on principle from a state of war, as against all the individuals of the belligerent nations--rights, whatever they may be, seldom, if ever, enforced against individuals, because individuals hardly ever make war but as part of an aggregate nation." The question--as, after consultation with Lord Ellenborough and his own brother, Sir William Scott, it finally appeared to Lord Eldon, on whom the Prime-minister naturally depended, as his chief legal counsellor, though in its political aspect he judged for himself--was, firstly, "whether it could possibly be inconsistent with justice or the law of nations that, till some peace were made by treaty with some person considered as Napoleon's sovereign, or till some peace were made with himself, we should keep him imprisoned in some part of our King's dominions." And, secondly, "whether there were any person who could possibly be considered his sovereign, after the treaty of 1814 had clothed him with the character of Emperor of Elba, with imperial dignity and imperial revenue." Lord Liverpool himself, however, raised another question: whether, by his invasion of France, he had not forfeited his right to be regarded as an independent sovereign; resting this doubt on a suggestion which, among others, he proposed to the Lord Chancellor, that "at Elba he enjoyed only a limited and conditional sovereignty, which ceased when the condition on which he held it was violated." This last suggestion, it must be confessed, appears untenable, as totally inconsistent with the language of the Treaty of Fontainebleau, under the provisions of which Napoleon became sovereign of Elba, and which does not contain a single article which bears out the opinion that his sovereignty was limited or conditional. On the contrary, the words of the treaty expressly agree that "Elba should form during his life a separate principality, which should be possessed by him in full sovereignty and property." There is no need to discuss the views of Blucher. On the news of Napoleon's landing at Frejus reaching the plenipotentiaries assembled at the Congress of Vienna, they at once issued a declaration that, "in breaking the convention which had established him at Elba, Buonaparte" (for they refused him his imperial appellation of Napoleon) "had destroyed the only legal title on which his existence depended.... He had placed himself out of the pale of civil and social relations, and, as the enemy and disturber of the peace of the world, he was delivered over to public justice." And the old Prussian, burning with a desire to avenge the indignities and injuries which he had inflicted on Prussia, avowed his determination to execute him as an outlaw, if he should fall into his hands. And it is still less worthwhile to inquire--though Lord Holland in his place in Parliament did desire the House to consult the judges on the point--whether, if Napoleon were a prisoner of war, he "were not entitled to his _habeas corpus_, if detained after the signature of a treaty of peace with all the powers, or any of which he could be considered as the subject." On the whole, the simplest view of the position and of our detention of him, the view most reconcilable with the principles which regulate the waging and the relinquishing a state of war, seems to be to consider that Napoleon was a sovereign with whom we were at war; that that war could only be terminated by a treaty of peace between ourselves and him; that it rested with us to conclude, or to abstain from concluding, any such treaty; and that, till we should conclude it, we had clearly a right to detain him as a prisoner of war. It must, at the same time, be admitted that modern history afforded no precedent for the detention of a prisoner for his whole life (unless, indeed, Elizabeth's imprisonment of the Queen of Scots may be considered as one), and that the most solid justification for it was necessity. To quote the language of Lord Eldon, "I believe it will turn out that, if you can't make this a _casus exceptionis_ or _omissus_ in the law of nations, founded upon necessity, you will not really know what to say upon it. _Salus Reipublicae suprema lex_, as to one state; _Salus omnium Rerumpublicarum_ must be the _suprema lex_ as to this case."[176] In the course of the year 1818 a somewhat singular question as to the position of the Regent was raised by a claim advanced by Colonel Berkeley to produce his Royal Highness as a witness in a court of law. The Prince consulted the Prime-minister, and the Prime-minister referred it to the Attorney and Solicitor General, not concealing his own impression that it could not be consistent with his constitutional position and prerogative for the King to appear as a witness to be subjected to examination and cross-examination.[177] They, in their statement of opinion, assumed it to be an undeniable principle of the constitution that the sovereign, "by reason of his royal character, could not give testimony." And therefore they had no doubt that the Regent, exercising his authority, was equally prevented from so doing. Colonel Berkeley's counsel had urged that, even if he could not appear in open court and be sworn, he had the privilege of communicating his evidence in a peculiar mode, by certificate under the Sign Manual or Great Seal. But the Attorney and Solicitor General professed that they could not discover whence this last privilege was derived; they urged, as an insurmountable objection to such a contrivance, that "all instruments under the Sign Manual or Great Seal must, in point of form, be in the name of and on behalf of the King, which would manifestly be incongruous when the evidence certified was not that of the King, but of the Regent himself." And they quoted a case in which Lord Chief-justice Willes had said "that the certificate of the King, under his Sign Manual, of a fact (except in an old case in Chancery) had always been refused." As it had been urged also, on Colonel Berkeley's behalf, that the Prince had formerly "joined in proving the will of the Duke of Brunswick," his brother-in-law, they farther expressed an opinion that "he ought not to have done so, but should have left it to the other executors." On the point whether "the King himself could give evidence orally or in any other manner," their opinion expressed very plainly the principle on which they maintained that he could not. "That he was not compellable to do so; that he could not be sworn (there being no power capable of administering an oath to him in a court of justice). That, whether his testimony be given _vivâ voce_ or otherwise, no question in chief or on cross-examination could be proposed to him, was admitted by Colonel Berkeley's counsel. And that his testimony must be conclusive as to the facts stated by him, appeared necessarily to follow from the perfection ascribed by law to his royal character. For such remarkable exceptions, therefore, to the case of all other witnesses they could not but think that strong and decisive authority ought to be produced; while the silence of text-writers on the subject, so far from being favorable to the notion that the King can give evidence, appeared to afford a directly contrary inference." And they summed up their opinion in a few words: "that his Royal Highness the Prince Regent, while in the personal exercise of the royal authority, was in the situation of the King in this respect, and that the King could not by any mode give evidence as a witness in a civil suit." It is very improbable that Colonel Berkeley should have made the application without previously ascertaining the willingness of the Prince to give evidence, could such a course be permitted. And as his Royal Highness, on receiving this opinion of the law-officers of the crown, did not come forward as a witness, that opinion may be held to have settled the question. And, apart from the constitutional objections relied on by those able lawyers, it is evident that there would be serious practical objections to the sovereign being made a witness. It would be derogatory to his royal character to put himself in a position where comments could be made, either by the opposing barrister or by the public outside, on his evidence. And, on the other hand, it would be perilously unfair to one litigant for his adversary to be able to produce a witness who was not subject to cross-examination, nor to remarks upon his testimony. The reign of George III. was now drawing to its close, and, if it produced no legislation affecting the principles of the constitution (it will presently be seen that it did produce one measure which its opponents branded as a violation of these principles), yet in its last years it witnessed the revival of an agitation which was kept up with varying animation till it was temporarily quieted by the concession of its demands. We have seen that one of Pitt's earliest efforts at legislation had been directed to a reform in Parliament, an object which to the end of his life he considered of great importance, though the revolutionary spirit aroused by the troubles in France, and the open sympathy with the French Jacobins and Republicans avowed by a party among ourselves--which, if numerically weak, was sufficiently loud and active to be dangerous--prevented him from ever re-opening the subject. But, though the French Revolution in this way proved for the time an insurmountable obstacle to the success of the reformers, in another way it insured the revival of the question, by the general spirit of inquiry which it awakened among the population at large, and which soon went beyond the investigation of any single abuse or anomaly. For even less far-sighted statesmen than Pitt confessed the existence of much that was not only theoretically indefensible, but practically mischievous. The period, little short of a century, which elapsed between the death of William III. and Pitt's accession to office had been one of almost complete stagnation and apathy. The Scotch Union, the Septennial Bill, the establishment of a militia, and the Place Bill of 1743 were the only instances of any legislation deserving the name of constitutional which made the reigns of Anne and the first two Georges memorable. And in the very nature of things it was impossible that, after so long a slumber, there should not be much to do, and many, whether capable or incapable, eager to bear a share in the work. The sudden cessation of the excitement of war had begotten a restless craving for some other excitement to take its place, and none seemed so creditable as energy and acuteness in the discovery and removal of abuses. Complaints were made, and not without reason, of the working of the poor-law; of the terrible severity of our criminal code; of the hardships and sufferings of the younger members of the working classes, especially in the factories; of the ignorance of a large portion of the people, in itself as prolific a cause of mischief and crime as any other. But, though committees and commissions were appointed by Parliament to investigate the condition of the kingdom in respect of these matters, a feeling was growing up that no effectual remedy would be applied till the constitution of the House of Commons itself were reformed, so as to make it a more real representation of the people than it could as yet be considered. And a farther stimulus to this wish for such a Parliamentary reform was supplied by the distress which a combination of circumstances spread among almost all classes in the years immediately following the conclusion of the second treaty of peace.[178] The harvests of the years 1816 and 1817 were unusually deficient, and this pressed heavily on the farmers and landed proprietors. The merchants and manufacturers, who, while every part of the Continent was disturbed or threatened by the operations of contending armies, had practically enjoyed almost a monopoly of the trade of the world, found their profits reduced, by the new competition to which the re-establishment of peace exposed them, to a point which compelled them to a severe reduction of expenditure. The uncertainty felt as to the results to be brought about by the inevitable repeal of the Bank Act of 1797, and the return to cash payments--results which it was impossible to estimate correctly beforehand--had a tendency to augment the distress, by the general feeling of uneasiness and distrust which it created. And the employers of labor could not suffer without those who depended on them for employment suffering still more severely. The consequence was, that there was a general stagnation of trade; numbers of artisans and laborers of every kind were thrown out of work, and their enforced idleness and poverty, which was its result, made them ready to become the tools of demagogues such as are never wanting in the hour of distress and perplexity. Meetings were convened, ostensibly to petition for reform, but in reality to afford opportunities for mob-orators, eager for notoriety, to denounce the government and those whom they styled the "ruling classes," as the causes of the present and past evils. From these meetings multitudes issued forth ripe for mischief. In some places they rose against the manufacturers, and destroyed their machines, to the recent introduction of which they attributed their want of employment. In others, still more senselessly, they even set fire to the stores of grain in the corn-dealers' warehouses, aggravating by their destruction the most painful of their own sufferings. On one occasion, a mob which had assembled in one of the eastern districts of London, on pretence of framing a petition to be presented to the Prince Regent, at the close of the meeting paraded the streets with a tricolor flag, the emblem of the French Revolutionists, and pillaged a number of shops, especially those of the gun-makers, spreading terror through all that side of the metropolis. In at least one instance the violence of the rioters rose to the height of treason. Assassins fired at the Regent in the Park as he was returning from the House of Lords, whither he had been to open Parliament; and when it was found that they had missed their aim, the mob attacked the royal carriage, pelting it with large stones, and breaking the windows; nor was it without some difficulty that the escort of troops cleared a path for him through the mob, and enabled him to reach Carlton House in safety. The first effect of these outrages was to damage the cause of Reform itself, even such uncompromising reformers as Lord Grey denouncing "meetings at which extensive schemes of Reform were submitted to individuals incapable of judging of their propriety." The second consequence was to compel the ministers to take steps to prevent a recurrence of such tumults and crimes. At first they were contented with a temporary suspension of the _Habeas Corpus_ Act; but, even while that suspension was in force, it did not entirely prevent meetings, at some of which the language of the speakers certainly bordered on sedition; and when the suspension was taken off, fresh meetings on a larger scale, and of a more tumultuous character than ever, were held in more than one rural district; finally, in July of 1819, the whole kingdom was thrown into a violent state of excitement by a meeting held at Birmingham, at which the leaders, assuming the newly-invented party name of Radicals, not only demanded the remodelling of the whole system of government, but, because Birmingham as yet sent no members to the House of Commons, took it upon themselves to elect Sir Charles Wolseley, a baronet of respectable family, as their representative to the Parliament, and charged him to claim a place in the House of Commons in the next session, by the side of those elected in obedience to the royal writs. Sir Charles was at once arrested on the charge of having at this meeting used seditious language calculated to lead to a breach of the peace; but the Radical leaders, far from being intimidated by this demonstration of vigor on the part of the government, immediately summoned a similar meeting in Manchester, announcing their intention to elect a representative of that great town likewise, which, though the largest of all the manufacturing towns, was also unrepresented in the Imperial Parliament. The magistrates prohibited the meeting. It was only postponed for a week, when the people assembled in such formidable numbers (no estimate reckoned them at fewer than 60,000), that the ordinary civil authorities deemed themselves unequal to dealing with it, and called in the aid first of the Yeomanry and then of a hussar regiment. The soldiers behaved with great forbearance, as soldiers always do behave on such occasions; but they were bound to execute the orders which were given them to arrest some of the leaders, and, in the tumult which was the inevitable consequence of their attempt to force a way through so dense a crowd, three or four lives were, unfortunately, lost. So unusual a catastrophe called out the energies of both parties. The Radical leaders published manifestoes declaring the people had been "massacred" by the soldiers by the orders of the government. Meetings were held to denounce the conduct of the ministers, one being even promoted by Lord Fitzwilliam, as Lord-lieutenant of Yorkshire, a dignity of which he was instantly deprived; while, on the other hand, the grand-juries of Cheshire and Lancashire made reports of the condition of those counties to the Secretary of State, which showed that a most alarming spirit prevailed over the greater part of the district. "The most inflammatory publications had been issued in the principal towns, at a price which put them within the reach of the poorest classes of society. The training and military drilling of large bodies of men under regular leaders had been carried on to a great extent for some time, chiefly by night; and there was no doubt that an extensive manufacture of arms was going on." What was a hardly inferior symptom of danger was a system of intimidation which prevailed to a most serious degree. Many magistrates had received notices threatening their lives, and combinations had been formed to withhold custom from publicans and shopkeepers who had come forward to support the civil power. In many parts of the two counties the grand-juries declared "that no warrant of arrest or other legal process could be executed; the payment of taxes had ceased, and the landlords were threatened with the discontinuance of their rents." It was admitted that the spirit of disaffection was local, confined to three or four counties; but those counties were, next to Middlesex itself, the most populous and among the most important in the kingdom, and there was danger lest the feeling, if not checked, might spread. The crisis seemed so momentous, that some even of the Opposition leaders volunteered their counsels and aid to the ministers in dealing with it. And the ministers, after long deliberation, decided on calling Parliament together in November, and introducing some bills which they conceived necessary to enable them to restore and preserve tranquillity. They were six in number; and--perhaps, with some sarcastic reference to Gardiner's Six Acts in the sixteenth century--they were very commonly spoken of as Lord Sidmouth's Six Acts, that noble lord being the Home-secretary, to whose department they belonged. It is not necessary here to do more than mention the general purport of five of them. One prohibited military training without the sanction of the government; another empowered magistrates to search for arms which they had reason to believe were collected for illegal purposes; the third authorized the seizure of seditious and blasphemous libels; the fourth subjected publications below a certain size to the same stamp as that required for a newspaper; the fifth regulated the mode of proceeding in trials for misdemeanor of a political character. But these enactments were regarded as little more than arrangements of detail or procedure involving no principles, and some of them were admitted even by the most steadfast opponents of the ministers to be necessary. But the sixth, designed to restrain the practice of holding large open-air meetings--not, indeed, forever, but for a certain period, fixed at five years--was strongly resisted by the greater portion of the Whig party in both Houses, as a denial to the people of one of their most ancient and constitutional rights.[179] Its principal clauses enacted that "no meeting exceeding the number of fifty persons (except a meeting of any county or division of any county, called by the Lord-lieutenant or sheriff of such county, etc., or by five or more acting justices of the peace for such county, or by the major part of the grand-jury; or any meeting of any city, borough, etc., called by the mayor or other head officer of such city, etc.) should be holden for the purpose or on the pretext of deliberating upon any public grievance, or upon any matter relating to any trade, manufacture, etc., or upon any matter of Church or State, or of considering, proposing, or agreeing to any petition, address, etc., etc., unless in the parish or township within which the persons calling any such meeting usually dwell;" and it required six days' notice of the intention to hold such meetings, with their time, place, and object, to be given to a magistrate. It empowered the magistrate to whom such notice was given to alter the time and place. It forbade adjournments intended to evade these prohibitions. It forbade any one to attend such meetings except freeholders of the county, or parishioners of the parish, or members of the corporation of the city or borough in which they were held, or members of the House of Commons for such places. It empowered magistrates to proceed to the places where such meetings were being held, and, if they thought it necessary, to require the aid of constables. It enacted that any meeting, the tendency of which should be "to incite or stir up the people to hatred and contempt of the person of his Majesty, his heirs and successors, or of the government or constitution of this country as by law established, should be deemed an unlawful assembly." It empowered one or more justices of the peace, in the event of any meeting being held contrary to the provisions of this act, to warn every one present, in the King's name, to depart; and made those who did not depart in obedience to such warning liable to prosecution for felony, and, if convicted, to seven years' transportation. It forbade the display of flags, banners, or ensigns at any meeting, and the employment of any drum, or military or other music; but it excepted from its operation "any meeting or assembly which should be wholly holden in any room." There was one peculiarity in the line taken by the opponents of the bill, that they did not deny that the meetings which had induced the ministers to propose it were an evil, dangerous to the general tranquillity; but it was strongly urged by Lord Erskine and others that the existing laws were quite strong enough to deal with them, so that a new enactment was superfluous; and by others, in both Houses, that such meetings were "an ancient and constitutional mode of discussing abuses or petitioning Parliament," any interference with which was a greater evil than the meetings themselves, as being a violation of the constitution. Mr. Brougham in particular admitted, to the full extent of the assertions of the ministers themselves, "the wickedness and folly of many of the speeches" made at the recent meetings. He expressed with great force his entire disapproval of the system on which these meetings had been conducted, and admitted that the martial array which had been exhibited, and the vastness of the numbers of those who had attended, were of themselves calculated to excite alarm; but he declared that "he could not on that account acquiesce in a total subversion of a popular right." On the other hand, the ministers themselves did not deny "the general right of the people to petition the Legislature, or to carry their addresses to the foot of the throne. And therefore (as Lord Harrowby, the President of the Council, admitted) there could be no doubt of their right to assemble, so far as was necessary to agree to their petitions or addresses. It was a right that did not depend on the Bill of Rights, on which it was usually grounded, but had existed long before. But this bill," he contended, "imposed no restrictions on the legitimate enjoyment of that privilege; it only regulated the meetings at which it was to be exercised." And Lord Liverpool affirmed that the bill was not only "consistent with the existing laws and principles of the constitution, but was even proposed in furtherance of those principles, and for the purpose of protecting the people of this country against a series of evils which, if not checked, must subvert their laws and liberties." In attempting to form a correct judgment on the question whether this bill were constitutional or unconstitutional, it must, I think, be admitted that, as has been remarked before, the terms "constitutional" and "unconstitutional" are somewhat vague and elastic. There is no one document--not Magna Charta, nor the Petition of Eight, nor the Bill of Rights--which can be said to contain the whole of the British constitution. Its spirit and principles are, indeed, to be found in all the laws, to which they give animation and life, but not in any one law. And among its leading principles are those which embrace the right of every individual to freedom of action and freedom of speech, so long as he does not commit any crime himself, nor tempt others to do so. Yet it does not follow that a new enactment which for a while abridges or suspends that freedom of action or speech is inconsistent with those constitutional principles. Ministers, to whom the government of a country is intrusted, do wrong if they limit their operations to the punishment of offences which have been committed. It is at least equally their duty, as far as possible, to prevent their commission; to take precautionary measures, especially at times when there is notorious danger of offences being committed. At the same time they are bound not to legislate under the influence of panic; not to yield to fears having no substantial ground. And in their measures of precaution they are farther bound to depart from or overstep the ordinary law as little as is compatible with the attainment of their object. In all such cases each action of theirs must stand or fall by its own merits; by the greatness of the emergency which has caused it, and by its sufficiency for its end. For as no law, except such as forbids moral crimes, is invariable, so even the dearest privileges of each subject, being his for the common good, are liable to temporary suspension for that common good. But the burden of justification lies on those who propose that suspension. Now, that this bill was such a suspension of the long-established rights of the subject, and so far an overstepping of the principles of the constitution, is admitted by the very fact of its framers only proposing for it a temporary authority. Had it not invaded a valuable and real right, it might have been made of perpetual obligation. But it is not easy to see how it can be denied that the dangers against which it was intended to guard were also real. It was certain that itinerant demagogues were visiting districts with which they had no connection, for the sole purpose of stirring up political agitation. It was clear that such meetings as they convened, where those assembled could only be counted by tens of thousands, were too large for deliberation, and were only meant for intimidation; and equally clear that, though the existing laws may have armed the magistrate with authority to disperse such meetings, they did not furnish him with the means of doing so without at least the risk of bloodshed (for such a risk must be involved in the act of putting soldiers in motion), and still less did they invest him with the desirable power of preventing such meetings. It was necessary, therefore, to go back to the original principles and objects of every constitution, the tranquillity, safety, and welfare of the nation at large. And it does not appear that this bill went beyond what was necessary for that object. Indeed, though party divisions are not always trustworthy tests of the wisdom or propriety of a measure, the unusual magnitude of the majorities by which on this occasion the minister was supported in both Houses may fairly be regarded as a testimony to the necessity of the bill,[180] while its sufficiency was proved by the abandonment of all such meetings, and the general freedom from agitation in every part Of the country which prevailed in the following year, though its most remarkable incident was one of which demagogues might well have taken advantage, if they had not had so convincing a proof of the power of government, and of the resolution of the ministers to exert it.[181] Notes: [Footnote 172: Against Junot, at Vimiera and Rolica, in 1808; Soult, at Oporto, and Victor, at Talavera, in 1809; Massena and Ney, at Busaco and Torres Vedras, in 1810; Masséna and Bessiéres, at Fuentes d'Onor, in 1811. Ciudad Rodrigo and Badajoz had been taken in 1812, in spite of the neighborhood of Soult and Marmont. In July, 1813, a month after the formation of Lord Liverpool's ministry, he routed Marmont at Salamanca; in 1813 he took Madrid, and routed Jourdain at Vittoria; and, having subsequently defeated Soult at Sauroren, he crossed the French frontier in October.] [Footnote 173: A resolution, moved by Mr. Canning, to take the claims of the Roman Catholics into consideration in the next session had been carried in June by the large majority of 129; and when Lord Wellesley brought forward a similar motion in the House of Lords, not only did Lord Liverpool "protest against its being inferred from any declaration of his that it was, or ever had been, his opinion that under no circumstances would it be possible to make any alteration in the laws respecting the Roman Catholics," but the Chancellor, Lord Eldon, who was generally regarded as the stoutest champion of the existing law, rested his opposition entirely on political grounds, explaining carefully that he opposed the motion, "not because he quarrelled with the religion of the Roman Catholics, but because their religious opinions operated on their political principles in such a way as to render it necessary to adopt some defence against them," and met the motion by moving the previous question, avowedly because "he did not wish, at once and forever, to shut the door of conciliation;" and the previous question was only carried by a single vote--126 to 125.] [Footnote 174: "It (difference on the Catholic question) was an evil submitted to by the government, of which Mr. Fox, Lord Grenville, and Lord Grey were members, in the years 1806, 1807, as well as by the governments of Mr. Perceval, Lord Liverpool, and the Duke of Wellington."--_Peel's Memoirs_, i., 62. This passage would seem to imply that Peel believed the Catholic question to have been left "open" in 1806; but there is not, so far as the present writer is aware, any trace of such an arrangement on record, and Lord Liverpool's letter to the King, of November 10, 1826 ("Life," iii., 436), shows clearly that he was not aware of such a precedent for the arrangement which, in 1812, "he and others advised his Majesty" to consent to. Moreover, the condemnation passed on it by Mr. Ponsonby, who had been Chancellor of Ireland in 1806 and 1807, seems a clear proof that he knew nothing of it, though it is hardly possible that he should have been ignorant of it if it had existed.] [Footnote 175: To whom the chief glory of the Waterloo campaign belongs there can, of course, be no doubt; and though the Austrians and Prussians put forward a claim to an equal share, and Russia even to a preponderating one, in the first deposition of Napoleon, he himself constantly attributed his fall more to the Peninsular contest than to any of his wars east of the Rhine. And, indeed, it is superfluous to point out that almost to the last he gained occasional victories over the Continental armies, but that he never gained one advantage over the British force; and that Wellington invaded France the first week of October, 1813--nearly three months before a single Russian or German soldier crossed the Rhine.] [Footnote 176: Letter to Sir W. Scott, Twiss's "Life of Lord Eldon," ii., 272. It is remarkable that in his "Life of Lord Ellenborough" Lord Campbell takes no notice of this case.] [Footnote 177: The opinion of the Attorney and Solicitor General, Sir S. Shepperd and Sir R. Gifford, is given at length in the author's "Life of Lord Liverpool," ii., 373.] [Footnote 178: It is a shrewd observation of Sully, that it is never any abstract desire for theoretical reforms, or even for increased privileges, which excites in lower classes to discontent and outrage, but only impatience under actual suffering.] [Footnote 179: The bill (entitled "The Seditious Meetings Prevention Bill"), 60 George III., c. 6, is given at full length in Hansard's "Parliamentary Debates," series 1., vol. xli., p. 1655.] [Footnote 180: In the House of Lords the majority was 135 to 38; in the House of Commons, 851 to 128. And even of this minority, many would have supported the bill, if the ministers would have consented to adopt an amendment proposed by Lord Althorp, to limit its operation to a few of the northern and midland counties, in which alone, as he contended, any spirit of dangerous disaffection had been exhibited.] [Footnote 181: It may be as well to mention that these pages were written in the autumn of 1880.] CHAPTER VIII. Survey of the Reign of George III.--The Cato Street Conspiracy.--The Queen's Return to England, and the Proceedings against her.--The King Visits Ireland and Scotland.--Reform of the Criminal Code.--Freedom of Trade.--Death of Lord Liverpool.--The Duke of Wellington becomes Prime-minister.--Repeal of the Test and Corporation Act.--O'Connell is Elected for Clare.--Peel Resigns his Seat for Oxford.--Catholic Emancipation.--Question of the Endowment of the Roman Catholic Clergy.--Constitutional Character of the Emancipation.--The Propriety of Mr. Peel's Resignation of his Seat for Oxford Questioned. In the first month of 1820 George III. died. His had been an eventful reign, strangely checkered with disaster and glory; but, if we compare its close with its commencement, it was still more remarkably distinguished by a development of the resources and an increase in the wealth and power of the nation, to which the history of no other country in the same space of time affords any parallel. Regarded from the first point of view, our successes greatly outweighed our disasters. The loss of our North American Colonies, the only event which can be so described, was far more than counterbalanced by our vast acquisitions in India, at the Cape of Good Hope, and Malta; while to our maritime supremacy, in the complete establishment of which Rodney and Nelson had crowned the work of Anson and Hawke, was now added a splendor of military renown far surpassing that achieved by any other of the nations which had borne their share in the overthrow of Napoleon. The increase of our resources is sufficiently shown by a single fact. At his accession George III. found the kingdom engaged in the great seven years' war; one British army employed beyond the Rhine, another in India; fleets traversing the seas in every direction, capturing the Havana, in the West Indies; Manilla, in the East; and routing French squadrons in sight of their own harbors. While, to maintain these varied armaments, supplies were voted by Parliament in 1761 to what Lord Stanhope calls "the unprecedented amount of almost twenty millions." In 1813 the supplies reached nearly six times that amount,[182] and that prodigious sum was raised with greater ease than the revenue of 1761, the interest on the necessary loans being also lower than it had been on the former occasion. The philosophical man of science will point with at least equal exultation to the great discoveries in art and science; to the achievements of the mechanic, the engineer, and the chemist; to the labors of Brindley and Arkwright and Watts, to which, indeed, this great expansion of the resources and growth of the wealth of the country is principally owing. While, as the preceding chapters of this work have been designed to show, our political progress and advancement had been no less steady or valuable; yet, important from a constitutional point of view as were many of the labors of our legislators in these sixty years, they are surpassed in their influence on the future history of the nation, as well as in the reality and greatness of the changes which were produced by them in the constitution, by the transactions of the reigns of the next two sovereigns, though the two united scarcely equalled in their duration a quarter of that of their venerable father. It has been seen how Pitt was baffled in his efforts to remodel the House of Commons, and to remove the disabilities under which the Roman Catholics labored, the reasons for which, even granting that they had been sufficient to justify their original imposition, had, in his judgment, long passed away. His pursuit of the other great object of his domestic policy, the emancipation of trade from the shackles which impeded its universal development, was rudely interrupted by the pressure of the war forced upon him by that very nation which he had desired to make the first partner, if one may use such an expression, in the prosperity which he hoped to diffuse by his commercial treaty with her. But, as in the case of other men in advance of their age, the principles which he had asserted were destined to bear fruit at a later period. And the mere fact of a change in the person of the sovereign seemed to make a change in the policy hitherto pursued less unnatural. Yet, memorable as the reforms which it witnessed were destined to make it, no reign ever commenced with more sinister omens than that at which we have now arrived. The new King had not been on the throne a month, when a conspiracy was discovered, surpassing in its treasonable atrocity any that had been heard of in the kingdom since the days of the Gunpowder Plot; and, even before those concerned in that foul crime had been brought to punishment, the public mind was yet more generally and profoundly agitated by a scandal which, in one point of view, was still more painful, as in some degree involving the whole kingdom in its disgrace. The marriage of the present sovereign to Mrs. Fitzherbert has already been mentioned. A few years afterward, in the year 1795, regarding that marriage as illegal, he had contracted a second with his cousin, the Princess Caroline of Brunswick. But, even in royal families, a more unfortunate alliance had never taken place. They had never met till she arrived in England for the wedding; and, as he had never professed any other motive for consenting to the match than a desire to obtain the payment of his debts, he did not think it necessary to disguise his feelings, or to change his habits, or even to treat her with decency for a single day. On his very first introduction to her he behaved to her with marked discourtesy.[183] Shortly after the marriage he formally separated himself from her, and, both before and after the separation, lived in undisguised licentiousness. She, on her part, indignant at his neglect and infidelity, and exasperated at the restrictions which he presently placed on her intercourse with their only child, made no secret of her feelings, and on many occasions displayed such disregard of the ordinary rules of prudence and propriety, that he had some color for charges of infidelity to her marriage vows which, after a few years, he brought against her. The King, her uncle, could not refuse to appoint a commission to investigate the truth of the accusation; but the commissioners unanimously acquitted her of any graver fault than imprudence. She was again received at court, from which she had been excluded while the inquiry was pending; but her husband's animosity toward her was not appeased. As time wore on, and as the King's derangement deprived her of her only protector, it even seemed as if he desired to give it all the notoriety possible, till at last, wearied out by his implacable persecution, she sought and obtained his permission to quit the country and take up her abode abroad. It was a most unfortunate resolution on her part. She fixed her residence in Italy, where she gradually learned to neglect the caution which she had observed in England, till, after a year or two, reports arose of her intimacy with a servant whom she had raised from a menial situation to that of the chief officer of her household, and whom she admitted to a familiarity of intercourse which others besides her husband thought quite incompatible with innocence. He sent agents into Italy to inquire into the truth of those rumors; and their report so greatly confirmed them that, even before the King's death, he laid it before the Prime-minister, with a demand that he should at once take steps to procure him a divorce, in which he professed to believe that the Princess herself would willingly acquiesce. He was so far correct, that her legal advisers were willing to advise her to consent to "a formal separation, to be ratified by an act of Parliament." But such an arrangement fell far short of the Prince's wishes. The Princess Charlotte, the heiress to his throne, had died in childbirth two years before, and he was anxious to be set free to marry again. The ministers were placed in a situation of painful embarrassment. There was an obvious difficulty in pointing out to one who already stood toward them in the character of their sovereign, and who must inevitably soon become so, that his own conduct made the prospect of obtaining a divorce from the Ecclesiastical Courts hopeless; and the only other expedients calculated to attain his end, "a direct application to Parliament for relief, founded upon the special circumstances of the case," or "a proceeding against the Princess for high-treason," were but little more promising. Indeed, it was afterward ascertained to be the unanimous opinion of the judges that the charge of high-treason could not be legally sustained, since the individual who was alleged to be the partner in the criminality imputed to her was a foreigner, and therefore, "owing no allegiance to the crown," could not be said to have violated it.[184] He chafed under their resistance to his wish, and would have deprived them of their offices, could he have relied on any successors whom he might give them proving more complaisant; but, before he could make up his mind, the death of George III. forced upon both him and them the consideration of his and his wife's position, since it made it necessary to remodel the prayer for the royal family, and instantly to decide whether her name and title as Queen were to be inserted in it. He was determined that they should not be mentioned; and, as the practice of praying for a Queen Consort by name appeared not to have been invariable, they were willing to gratify him on this point, though it was evidently highly probable that she would consider this as a fresh insult, sufficient to justify her in carrying out a threat, which she had recently held out, of returning to England. Her ablest advisers did not, indeed, regard it in this light, since the prayer as now framed implored the Divine protection for "all the royal family" in general terms, in which she might be supposed to be included, and made no separate mention of any member of the family.[185] But, unfortunately, she was much more under the influence of counsellors who were neither lawyers nor statesmen, but who only desired to use her as a tool to obtain notoriety for themselves. A long negotiation ensued. It was inevitable that some application should be made to Parliament in connection with her affairs, since the annuity which had been settled upon her by Parliament in 1814, on the occasion of her departure from England, had expired with the life of the late King. And the ministers proposed that that annuity should now be raised from £35,000 to £50,000, on condition of her remaining abroad, having, by their positive refusal to concur in any proceedings against her while she remained abroad, extorted the King's acquiescence in this proposal, though he called it a "great and painful sacrifice of his personal feelings." They sought to conciliate her acceptance of it by mentioning her in it by her title of "Queen," and by coupling with it a sanction to her appointment of her law-officers, an Attorney and Solicitor General, an act which could only be exercised by a Queen. And, though a part of the condition of her residence abroad required that she should do so under some other title, that seemed only a conforming to an ordinary practice of royal princes on their travels. At the same time, the ministers stated frankly to Mr. Brougham, a lawyer of the highest reputation as an advocate, whom she had appointed her Attorney-general, that, if she should reject the offer, and come to England, as she had already announced her intention of doing, such a course would leave them no alternative, but would compel them to institute proceedings against her. Eventually she preferred the advice of others to that of Mr. Brougham, or, as it may, perhaps, be more consistent with the real fact to say, she yielded to her own feelings of hatred of her husband, which, it must be confessed, were far from unnatural. She believed, or professed to believe, that he had more to dread from an exposure of his conduct than she had from any revelations of her actions; and, under this impression, in the spring she crossed the Channel and took up her residence in London. It was a step which seemed to Lord Liverpool to leave him no alternative, and, in consequence, he at once took the course which he had from the beginning conceived her arrival would render indispensable. He brought down to Parliament a royal message from the King, announcing that her return to England had made it necessary to communicate to the Houses documents relating to her conduct since her departure from the kingdom, which he recommended to their immediate and serious attention. He proposed the appointment by ballot of a committee of the House of Lords to examine those documents; and when the committee had reported that the documents containing "allegations deeply affecting the honor of the Queen, etc., ... appeared to the committee calculated to affect not only the honor of the Queen, but also the dignity of the crown and the moral feelings and honor of the country, so that in their opinion, they should become the subject of a solemn inquiry, which might be best effected in the course of a legislative proceeding," he introduced a "Bill of Pains and Penalties" to deprive her of her title of Queen, and to annul her marriage. No one would willingly dwell on so melancholy and disgraceful a subject. As far as the Queen was concerned, a protracted investigation, during which a number of witnesses, favorable and unfavorable, were examined, left no doubt on the mind of almost all dispassionate people that the misconduct alleged against her had been abundantly proved. At the same time there was a feeling equally general that the King's treatment of her from the very beginning of their married life had disentitled him to any kind of relief; and this sentiment was so strongly shown by the gradual diminution of the majority in favor of the bill, as it proceeded through its several stages, that Lord Liverpool, who had already abandoned the clause annulling the marriage, eventually withdrew the whole bill, perceiving the impossibility of inducing the House of Commons to pass it when it should go down to that House. No act of Lord Liverpool's ministry has been attacked with greater bitterness than that of allowing any proceedings whatever to be taken against the Queen, partly on the ground that, however profligate her conduct had been, it had certainly not been more gross than that of her husband, which had provoked and given opportunity for her errors; partly because a great scandal was thus published to the world, and a shock was given to the national decency and morality which the ministers, above all men, were bound to avoid; partly, also, because the mode of proceeding adopted was alleged to be wholly unprecedented; and because, as was contended, the power of Parliament ought not to be invoked to inflict penalties which, if deserved, should have been left to the courts of law. It cannot be denied that there is weight in these objections; but, in estimating their force, it must be considered that every part of the conduct of the ministers showed that their motive was not the gratification of the King's private feelings, whether directed to the object of indulging his enmity against his wife or to that of obtaining freedom to contract a second marriage; on the contrary, so long as the Queen remained abroad, no language could be more distinct, consistently with the respect due to his royal dignity, than that in which they expressed to him their insurmountable objection to every mode of proceeding against her which he had suggested, founded almost equally on considerations of "the interests of his Majesty and of the monarchy,"[186] and "the painful obligation" under which they conceived themselves to lie "of postponing their regard for his Majesty's feelings to great public interests." But when the Queen came to England the case was greatly altered. The question now forced on the consideration of the cabinet was, not the mode of avoiding an intolerable scandal, but the choice between two scandals, both of the gravest character. The scandal to be dreaded from the revelations of the conduct of both King and Queen, that could not fail to result from the investigation which, in justice, must precede any attempt to legislate on the subject, was, indeed, as great as ever; but it had now to be compared with the alternative scandal of allowing a woman lying under such grievous imputations to preside over the British court, as, if resident in England, and in undisturbed possession of her royal rank, she of necessity must preside. The consequence would evidently have been that the court would have been deserted by all who could give lustre and dignity to it by their position and character; and, in the slights thus offered to her, royalty and the monarchy themselves would seem to be brought into contempt. The latter scandal, too, would be the more permanent. Grievous and shameful as might be the disclosures which must be anticipated from an investigation in which the person accused must be permitted the employment of every means of defence, including recrimination, the scandal was yet one which would, to a certain extent, pass away with the close of the inquiry. But, if she were left undisturbed in the enjoyment of her royal rank, and of privileges which could not be separated from it, that scandal would last as long as her life--longer, in all probability, than the reign. It is hardly too much to say that the monarchy itself might have been endangered by the spectacle of such a King and such a Queen; and the ministers might fairly contend that, of two great dangers and evils, they had, on the whole, chosen the least. Lastly, if the Queen's conduct was to be investigated, though the mode adopted was denounced as unconstitutional by the Opposition (for, not greatly to their credit, the leading Whigs made her guilt or innocence a party question), it does not seem to deserve the epithet, though it may be confessed to have been unsupported by any direct precedent. Isabella, the faithless wife of Edward II., had, indeed, been condemned by "the Lords" to the forfeiture of many of the estates which she had illegally appropriated; but it does not appear that her violation of her marriage vows, or even her probable share or acquiescence in her husband's murder, formed any portion of the grounds of her deprivation. And the Parliament which attainted Catherine Howard proceeded solely on her confession of ante-nuptial licentiousness, without giving her any opportunity of answering or disproving the other charges which were brought against her. Unprecedented, therefore, the course now adopted may be admitted to have been. But it was the only practicable one. The different minutes of the cabinet, which the Prime-minister laid before the King, established most conclusively the correctness of their opinion that no impeachment for high-treason could lie against her. She could not be an accomplice in such an offence of one who, being a foreigner, could not have committed it. It was equally impossible for the King to sue for a divorce, as one of his subjects might have done; because it was the established practice of Parliament not to entertain a bill of divorce without the judgment of the Ecclesiastical Court being previously obtained and produced. And, under the circumstances, to obtain from the Ecclesiastical Court such a sentence as could alone lay the foundation for a bill of divorce was clearly out of the question. The case was a new and extraordinary one, and, being such, could only be dealt with in some new and extraordinary manner. And in all such cases an appeal to Parliament seems the most, if not the only, constitutional mode of solving the difficulty. Where the existing laws are silent or inapplicable, the most natural resource clearly is, to go back to the fountain of all law; that is, to the Parliament, which alone is competent to make a new law. In one point of view the question may seem unimportant, since we may well hope that no similar case will ever arise to require the precedent now set to be appealed to; but not unimportant, if it in any way or degree contributes to establish the great principle, that the solution of all matters of moment to the state belongs to the Parliament alone: a principle which, in its legitimate completeness, carries with it a condemnation of many a modern association whose object, whether avowed or disguised, is clearly to supersede where it fails to intimidate the sole constitutional Legislature. The abandonment of the bill was naturally hailed as a triumph by the Queen and her partisans; but with the excitement of the struggle against the government the interest taken in her case died away. The next year, when she demanded to be crowned with her husband, his refusal to admit her claim elicited scarcely any sympathy for her under this renewed grievance; in truth, it was one as to which precedent was unfavorable to her demand. And the mortification at finding herself already almost forgotten contributed to bring on an illness of which she died in less than a year after the termination of what was called her trial; and in a short time both she and it were forgotten. For the next few years the history of the kingdom is one of progressive correction of abuses or defects. The King paid visits to Ireland and Scotland, parts of his dominions which his father had never once visited, and in both was received with the most exultant and apparently sincere acclamations. And, though one great calamity fell on the ministry in the loss of Lord Castlereagh--who, in a fit of derangement, brought on by the excitement of overwork, unhappily laid violent hands on himself--his death, sad as it was, could not be said to weaken or to affect the general policy of the cabinet. Indeed, as he was replaced at the Foreign Office by his old colleague and rival, Mr. Canning, in one point of view the administration may be said to have been strengthened by the change, since, as an orator, Canning had confessedly no equal in either House of Parliament. Another change was productive of still more practical advantage. Lord Sidmouth retired from the Home Office, and was succeeded by Mr. Peel, previously Secretary for Ireland; and the transfer of that statesman to an English office facilitated reforms, some of which were as yet little anticipated even by the new Secretary himself. The earliest of them, and one not the least important in its bearing on the well-doing of society, the mitigation of the severity of our Criminal Code, was, indeed, but the following up of a series of measures in the same direction which had been commenced in the time of the Duke of Portland's second administration, and, it must be added, in spite of its resistance. The influence of various trades, and of the owners of different kinds of property, pressing in turns upon our legislators, had rendered our code the most sanguinary that had, probably, ever existed in Christendom. Each class of proprietor regarded only the preservation of his own property, and had no belief in the efficacy of any kind of protection for it, except such as arose from the fear of death; nor any doubt that he was justified in procuring the infliction of that penalty to avert the slightest loss to himself. The consequence was that, at the beginning of the present century, there were above two hundred offences the perpetrators of which were liable to capital punishment, some of a very trivial character, such as cutting down a hop-vine in a Kentish hop-garden, robbing a rabbit-warren or a fish-pond, personating an out-pensioner of Greenwich Hospital, or even being found on a high-road with a blackened face, the intention to commit a crime being inferred from the disguise, even though no overt act had been committed. An act of Elizabeth made picking a pocket a capital offence; another, passed as late as the reign of William III., affixed the same penalty to shop-lifting, even when the article stolen might not exceed the value of five shillings. And the fault of these enactments was not confined to their unreasonable cruelty; they were as mischievous even to those whom they were designed to protect as they were absurd, as some owners began to perceive. In the list of capital offences was that of stealing linen from a bleaching-ground. And a large body of bleachers presented a petition to Parliament entreating the repeal of the statute which made it such on the ground that, practically, it had been found not to strike terror into the thieves, but almost to secure them impunity from the reluctance of juries to find a verdict which would sentence a fellow-creature to the gallows for such an offence. Nor was this by any means the only instance in which the barbarity of the law defeated its object. And its combined impolicy and inhumanity had some years before attracted the notice of Sir Samuel Romilly, who had been Solicitor-general in the administration of 1806, and who, shortly after its dissolution, began to apply himself to the benevolent object of procuring the repeal of many of the statutes in question, and in the course of a few years did succeed in obtaining the substitution of milder penalties for several of the less flagitious offences. He died in 1818; but the work which he had began was continued by Sir James Mackintosh, a man of even more conspicuous ability, and one who could adduce his own experience in favor of the changes which he recommended to the Parliament, since he had filled the office of Recorder of Bombay for eight years, and had discharged his duties with a most diligent and consistent avoidance of capital punishment, which he had never inflicted except for murder; his lenity, previously unexampled in that land, having been attended with a marked diminution of crime. He procured the substitution of milder penalties in several additional cases; and at last, in 1822, he carried a resolution engaging the House of Commons "the next session to take into its serious consideration the means of increasing the efficacy of the criminal law by abating its undue rigor." And this success had the effect of inducing the new minister to take the question into his own hands. Peel saw that it was one which, if it were to be dealt with at all, ought to be regulated by the government itself, and not be left to independent members, who could not settle it with satisfactory completeness; and therefore, in 1823, he introduced a series of bills to carry out the principle implied in Mackintosh's resolution of the preceding year, not only simplifying the law, but abolishing the infliction of capital punishment in above a hundred cases. He was unable to carry out his principle as fully as he could have desired. The prejudice in favor of still retaining death as a punishment for forgery was too strong for even his resolution as yet to overbear, though many private bankers supplied him with the same arguments against it in their case which had formerly been alleged by the bleachers. But the example which he now set, enforced as it was with all the authority of the government, was followed in many subsequent sessions, till at last our code, instead of the most severe, has become the most humane in Europe, and death is now never inflicted except for murder, or crimes intended or calculated to lead to murder. It is worth remarking, however, that neither Romilly, Mackintosh, nor Peel ever entertained the slightest doubt of the right of a government to inflict capital punishment. In the last address which Mackintosh delivered to the grand-jury at Bombay he had said: "I have no doubt of the right of society to inflict the punishment of death on enormous crimes, wherever an inferior punishment is not sufficient. I consider it as a mere modification of the right of self-defence, which may as justly be exercised in deterring from attack as in repelling it."[187] And in his diary, when speaking of a death-warrant which he had just signed, he says: "I never signed a paper with more perfect tranquillity of mind. I felt agitation in pronouncing the sentence, but none in subscribing the warrant; I had no scruple of conscience on either occasion." And it seems that his position is unassailable. The party whose interest is to be kept in view by the Legislature in imposing punishments on offences is society, the people at large, not the offender. The main object of punishment is to deter rather than to reform; to prevent crime, not to take vengeance on the criminal. And, if crime be more effectually prevented by moderate than by severe punishments, society has a right to demand, for its own security (as a matter of policy, not of justice), that the moderate punishment shall, on that ground, be preferred. That punishments disproportioned in their severity to the magnitude of the offence often defeated their object was certain. Not only had jurymen been known to confess that they had preferred violating their oaths to doing still greater violence to their consciences, by sending a man to the gallows for a deed which, in their opinion, did not deserve it, but the very persons who had been injured by thefts or forgeries were often deterred from prosecution of the guilty by the knowledge that the forfeiture of their lives must follow their conviction. It was almost equally certain that criminals calculated beforehand on the chance of impunity which the known prevalence of these feelings afforded them. Wherever the sympathy of the public does not go along with the law, it must, to a great extent, fail; and that the terrible frequency of sanguinary punishment had failed in all its objects, was proved by the fact that, in spite of the numerous executions which took place, crimes increased in a still greater proportion than the population. Under the reformed system, now first inaugurated on an extensive scale, crimes have become rarer, detection and punishment more certain--a combination of results which must be the object equally of the law-giver and the philanthropist. It is not quite foreign to this subject to relate that, a year or two before, a mode of trial had been abolished which, though long disused, by some curious oversight had still been allowed to remain on the statute-book. In the feudal times either the prosecutor or the prisoner, in cases of felony, had a right to claim that the cause should be decided by "wager of battle;" but it was an ordeal which, with one exception in the reign of George II., had not been mentioned for centuries. In 1817, however, the relatives of a woman who had been murdered, being dissatisfied with the acquittal of a man who had been indicted as her murderer, sued out "an appeal of murder" against him, on which he claimed to have the appeal decided by "wager of battle," and threw down a glove on the floor of the court to make good his challenge. The claim was protested against by the prosecutor; but Lord Ellenborough, the Chief-justice, pronounced judgment that, "trial by battle having been demanded, it was the legal and constitutional mode of trial, and must be awarded. It was the duty of the judges to pronounce the law as it was, and not as they might wish it to be."[188] He gave sentence accordingly; and, had the two parties been of equal stature and strength, the Judges of the Common Pleas might have been seen, in their robes, presiding from sunrise till sunset over a combat to be fought, as the law prescribed, with stout staves and leathern shields, till one should cry "Craven," and yield up the field. Fortunately for them, the alleged murderer was so superior in bodily strength to his adversary, that the latter declined the contest. But the public advancement of the claim for such a mode of decision was fatal to any subsequent exercise of it; and, in spite of the Common Council of London, who, confiding, perhaps, in the formidable appearance presented by some of the City Champions on Lord Mayor's Day, petitioned Parliament to preserve it, the next year the Attorney-general brought in a bill to abolish it, and the judges were no longer compelled to pronounce an absurd sentence in obedience to an obsolete law, framed at a time when personal prowess was a virtue to cover a multitude of sins, and might was the only right generally acknowledged. The foundation, too, was laid for other reforms. Lord Liverpool was more thoroughly versed than any of his predecessors, except Pitt, in the soundest principles of political economy; and in one of the first speeches which he made in the new reign he expressed a decided condemnation, not only of any regulations which were designed to favor one trade or one interest at the expense of another, but generally of the whole system and theory of protection; and one of his last measures made an alteration in the manner of taxing corn imported from foreign countries, which was greatly to the advantage of the consumer. It was known as the "sliding-scale," the tax on imported corn varying with the price in the market, rising when the price fell, and falling when it rose; the design with which it was framed being to keep the price to the consumer at all times as nearly equal as possible. At first, however, it was vehemently denounced by the bulk of the agriculturists, who were re-enforced on this occasion by a large party from among the Whigs, and especially by some of those connected with Ireland. But a more suitable period for discussing the establishment of Free-trade as the ruling principle of our financial policy will occur hereafter. The introduction of the sliding-scale was almost the last act of Lord Liverpool's ministry. At the beginning of 1827 he was preparing a fresh measure on the same subject, the effect of which was intended to diminish still farther the protection which the former act had given, and which was in consequence denounced by many landholders of great wealth and influence, led, on this subject, by the King's favorite brother, the Duke of York.[189] But, a few days after the meeting of Parliament, he was struck down by an attack of paralysis, from which he never recovered. In his post as Prime-minister he was succeeded by Canning, not without great reluctance on the part of the King; not, probably, so much because he feared to find in him any desire to depart from the policy of Lord Liverpool, except on the Catholic question (for even on matters of foreign policy, on which Canning had always been supposed most to fix his attention, he had adopted the line which Lord Liverpool had laid down for the cabinet with evident sincerity),[190] as because his Majesty had never wholly forgiven him for the attitude which he had taken, differing on one or two points from that of his colleagues on the Queen's case. And, as has been mentioned in a former chapter, he even, with the object of evading the necessity of appointing him, suggested to the Duke of Wellington the singular scheme of allowing the remaining members of Lord Liverpool's cabinet to select their own chief,[191] which the Duke, though coinciding with him in his dislike of Canning, of whom he entertained a very causeless suspicion, rejected without hesitation, as an abandonment of the royal prerogative in one of its most essential duties or privileges. Another of his Majesty's notions, if it had been carried out, would have been one of the strangest violations of constitutional principle and practice which it is possible to conceive. The Duke of York, who had for many years been Commander-in-chief, died in January of the same year, and on his death the King actually proposed to take that office on himself. For the moment Lord Liverpool was able to induce him to abandon the idea, and to confer the post on the Duke of Wellington. But it had taken such possession of his mind that he recurred to it again when, on Canning becoming Prime-minister, the Duke resigned the office; and he pressed it on the Cabinet with singular pertinacity till, on Canning's death, the Duke was prevailed on to resume the command. It is evident that no arrangement could possibly be more inconsistent with every principle of the constitution. The very foundation of parliamentary government is, that every officer of every department is responsible to Parliament for the proper discharge of his duties. But the investiture of the sovereign with ministerial office of any kind must involve either the entire withdrawal of that department from parliamentary control, or the exposure of the sovereign to constant criticism, which, however essential to the efficiency of the department, and consequently to the public service, would be wholly inconsistent with the respect due to the crown. The first alternative it is certain that no Parliament would endure for a moment; the second, by impairing the dignity of the monarch, could scarcely fail in some degree to threaten the stability of the monarchy itself. Canning's ministry was too brief to give time for any transaction of internal importance. That of Lord Goderich, who succeeded him, though longer by the almanac, was practically briefer still, since it never met Parliament at all, but was formed and fell to pieces between the prorogation and the next meeting of the Houses. But that which followed, under the presidency of the Duke of Wellington, though after a few months its composition became entirely Tory, is memorable for the first great departure from those maxims of the constitution which had been reckoned among its most essential principles ever since the Revolution. Of the measures which bear that character, one was carried against the resistance of the ministry, the other by the ministers themselves. And it may at first sight appear singular that the larger measure of the two was proposed by the Duke after those members of his cabinet who had originally been supposed to give it something of a Liberal complexion had quitted it. The Reform Bill of 1832--to which we shall come in the next chapter--has been often called a peaceful revolution. The Toleration Acts, as we may call the bills of 1828 and 1829, are scarcely less deserving of that character. The constitution, as it had existed for the last hundred and forty years, had been not only a Protestant but a Church of England constitution. Not only all Roman Catholics, but all members of Protestant Non-conforming sects, all who refused to sign a declaration against the doctrine of Transubstantiation, and also to take the Sacrament according to the rites of the one Established Church, were disqualified for any appointment of trust. That the object with which the Test Act had been framed and supported was rather political than religious is notorious; indeed, it was supported by the Protestant Dissenters, though they themselves were to suffer by its operation, so greatly at that time did the dread of Popery and the French King overpower every other consideration.[192] On the Roman Catholics, after the reign of James II. had increased that apprehension, the restrictions were tightened. But those which inflicted disabilities on the Protestant Non-conformists had been gradually relaxed. The repeal of two, the Five Mile and the Conventicle Acts, had, as we have seen in the last chapter, been recent measures of Lord Liverpool. But the Test Act still remained, though it had long been practically a dead letter. The Union with Scotland, where the majority of the population was Presbyterian, had rendered it almost impossible to maintain the exclusion of Englishmen resembling the Scotch in their religious tenets from preferments, and even from seats in the House of Commons, to which Scotchmen were admissible. And though one Prime-minister (Stanhope) failed in his attempt to induce Parliament to repeal the Test Act, and his successor (Walpole) refused his countenance to any repetition of the proposal, even he did not reject such a compromise as was devised to evade it; and in the first year of George II.'s reign (by which time it was notorious that many Protestant Non-conformists had obtained seats in municipal corporations, and even in the House of Commons, who yet had never qualified themselves by compliance with the act of 1673) a bill of indemnity was introduced by the minister, with at least the tacit consent of the English bishops, to protect all such persons from the penalties which they had incurred. And the bill, which was only annual in its operation, was renewed almost every year, till, in respect of all such places or dignities (if a seat in the House of Commons can be described by either of those names), no one thought of inquiring whether a man, so long as he were a Protestant, adhered to the Established Church or not; members of the House of Commons even openly avowing their nonconformity, and at times founding arguments on the fact. The practical nullification of the Test Act by these periodical bills of indemnity had been for some time used by two opposite parties--both that which regarded the maintenance of the exclusive connection of the constitution with the Church of England as of vital importance to both Church and constitution, and that which was opposed to all restrictions or disqualiflcations on religious grounds--as an argument in their favor. The one contended that there could be no sufficient reason for repealing a law from which no one suffered; the other, that it was a needless provocation of ill-feeling to retain a law which no one ever dreamed of enforcing. Hitherto the latter had been the weaker party. One or two motions for the repeal of the Test Act, which had been made in former years,[193] had been defeated without attracting any great notice; but in the spring of 1828 Lord John Russel, then a comparatively young member, but rapidly rising into influence with his party, carried a motion in the House of Commons for leave to bring in a bill to repeal the act, so far as it concerned the Protestant Non-conformists, by a very decisive majority,[194] in spite of all the efforts of Peel and his colleagues. The ministry was placed in a difficult position by his success, since the usual practice for a cabinet defeated on a question of principle was to resign; and it is probable that they would not have departed from that rule now, had not this defeat occurred so early in their official life. But on this occasion it seemed to them that other questions had to be considered besides the constitutional doctrine of submission on the part of a ministry to the judgment of the Parliament.[195] Theirs was now the fourth administration that had held office within twelve months; and their resignation, which would compel the construction of a fifth, could hardly fail not only to embarrass the sovereign, but to shake public confidence in government generally. It was also certain that they could rely on a division in the House of Lords being favorable to them, if they chose to appeal from one House to the other. Under these circumstances, they had to consider what their line of conduct should be, and there never were two ministers better suited to deal with an embarrassment of that kind than the Duke of Wellington and Mr. Peel. The Duke's doctrine of government was that "the country was never governed in practice according to the extreme principles of any party whatever;"[196] while Peel's disposition at all times inclined him to compromise. He was quite aware that on this and similar questions public feeling had undergone great alteration since the beginning of the century. There was a large and increasing party, numbering in its ranks many men of deep religious feeling, and many firm supporters of the principle of an Established Church, being also sincere believers in the pre-eminent excellence of the Church of England, who had a conscientious repugnance to the employment of the most solemn ordinance of a religion as a mere political test of a person's qualifications for the discharge of civil duties. In the opinion of the Bishop of Oxford (Dr. Lloyd), this was the feeling of "a very large majority of the Church itself," and of the University.[197] Peel, therefore, came to the conclusion--to which he had no difficulty in bringing his colleague, the Prime-minister--that "it might be more for the real interests of the Church and of religion to consent to an alteration in the law" than to trust to the result of the debate in the House of Lords to maintain the existing state of things. Accordingly, after several conferences with the most influential members of the Episcopal Bench, he framed a declaration to be substituted for the Sacramental test, binding all who should be required to subscribe it--a description which included all who should be appointed to a civil or corporate office--never to exert any power or influence which they might thus acquire to subvert, or to endeavor to subvert, the Protestant Church of England, Scotland, or Ireland, as by law established. The declaration was amended in the House of Lords by the addition of the statement, that this declaration was subscribed "on the true faith of a Christian," introduced at the instigation of Lord Eldon, who had not held the Great Seal since the dissolution of Lord Liverpool's administration, but who was still looked up to by a numerous party as the foremost champion of sound Protestantism in either House. Not that the addition of these words at all diminished the dissatisfaction with which the great lawyer regarded the bill. On the contrary, he believed it to be not only a weapon wilfully put into the hands of the enemies of the Established Church, but a violation of the constitution, of which, as he regarded it "the existing securities were a part." He pointed out that "the King himself was obliged to take the sacrament at his coronation;" and he argued from this and other grounds that "the Church of England, combined with the state, formed together the constitution of Great Britain; and that the acts now to be repealed were necessary to the preservation of that constitution." With every respect for that great lawyer, his argument on this point does not appear sustainable. For the bill in question did not sweep away securities for the Established Church, but merely substituted, for one which long disuse and indemnity had rendered wholly inoperative, a fresh security, which, as it would be steadily put in force, might fairly be expected to prove far more efficacious. And it can hardly be contended that it was not within the province of the Legislature to modify an existing law in this spirit and with this object, however important might be the purpose for which that law had originally been framed. Nay, it might fairly be argued that the more important that object was, the more were they who strengthened the means of attaining that object entitled to be regarded as faithful servants and supporters of the principle of the constitution. The measure, however, relieved the Protestant Dissenters alone. Not only did Lord Eldon's amendment preserve the Christian character of the Legislature, but the requirement to sign the declaration against Transubstantiation, which was unrepealed, left the Roman Catholics still under the same disqualifications as before. But the days of those disqualifications were manifestly numbered. Indeed, many of those who had followed the ministers in their original resistance to the repeal of the Test Act had been avowedly influenced by the conviction that it could not fail to draw after it the removal of the disabilities affecting the Roman Catholics. As has been said before, the disabilities in question had originally been imposed on the Roman Catholics on political rather than on religious grounds. And the political reasons for them had been greatly weakened, if not wholly swept away, by the extinction of the Stuart line of princes. Their retention or removal had, therefore, now become almost wholly a religious question; and the late bill had clearly established as a principle that, though the state had a right to require of members of other religious sects that they should not abuse the power which might arise from any positions or employments to which they might be admitted, to the subversion or injury of the Established Church of England, yet, when security for their innocuousness in this respect was provided, it was not justified in inquiring into the details of their faith. And if this were to be the rule of government for the future, the conclusion was irresistible that a similar security was all that the state was justified in demanding from Roman Catholics, and that it could have no warrant for investigating their opinion on Transubstantiation, or any other purely theological tenet. There could be no doubt that the feelings of the public had been gradually and steadily coming round to this view of the question. The last House of Commons had not only passed a bill to remove Roman Catholic disabilities (which was afterward thrown out in the House of Lords), but had also passed, by a still larger majority, a resolution, moved by Lord Francis Leveson Gower (who was now the Secretary for Ireland), in favor of endowing the Roman Catholic priests in Ireland. And at the late general election the opinions of the candidates on what was commonly called Catholic Emancipation had been the great cardinal question with a great number, probably a majority, of the constituencies. It may be remarked that it was not the Test Act which excluded Roman Catholics from Parliament, but a bill which, fifteen years later, had been passed (probably under the influence of Lord Shaftesbury) at the time when the whole kingdom was excited by the daily expanding revelations of the Popish Plot.[198] And this bill had a loop-hole which was never discovered till now but the discovery of which totally changed the whole aspect of the question. Even before the bill repealing the Test Act had passed through all its stages, Sir Francis Burdett had again induced the House of Commons to pass a resolution condemning the continuance of the Roman Catholic disabilities; to which, however, the peers, by a far larger majority, refused their concurrence.[199] But, within a month of this division, the aspect of the whole question was changed by the shrewdness of an Irish barrister, who had discovered the loop-hole or flaw in the bill of 1678 already alluded to, and by the energy and promptitude with which he availed himself of his discovery. Mr. O'Connell had a professional reputation scarcely surpassed by any member of the Irish Bar. He was also a man of ancient family in the county of Kerry. And, being a Roman Catholic, he had for several years been the spokesman of his brother Roman Catholics on most public occasions. He now, on examination of the bill of 1678, perceived that, though it forbade any Roman Catholic from taking a seat in either House of Parliament, it contained no prohibition to prevent any constituency from electing him its representative. And when, on the occasion of some changes which were made in the cabinet, the representation of the County Clare was vacated by its member, Mr. Vesey Fitzgerald, accepting the office of President of the Board of Trade, O'Connell instantly offered himself as a candidate in opposition to the new minister, who, of course, sought re-election. Mr. Fitzgerald was a man who had always supported the demands of the Roman Catholics; he was also personally popular, and had the undivided support of nearly all the gentlemen and principal land-owners of the county, in which he himself had large property. But O'Connell's cause was taken up by the entire Roman Catholic priesthood; addresses in his favor were read at the altars of the different churches; and, after five days' polling, Mr. Fitzgerald withdrew from the contest. The Sheriff, in great perplexity, made a special return, reporting that "Mr. Fitzgerald was proposed, being a Protestant, as a fit person to represent the county in Parliament; that Mr. O'Connell, a Roman Catholic, was also proposed; that he, Mr. O'Connell, had declared before the Sheriff that he was a Roman Catholic, and intended to continue a Roman Catholic; and that a protest had been made by several electors against his return." It was accepted as a return of O'Connell, who, however, made no attempt to take his seat, though when he first stood he had assured the electors that there was no law to prevent him from doing so; but the importance of his success was not to be measured by his actual presence or absence in the House of Commons for the remainder of a session. It had made it absolutely impossible to continue the maintenance of the disabilities; what one Irish constituency had done, other Irish constituencies might be depended on to do.[200] And it was quite certain that, as opportunity offered, almost every constituency in Munster and Connaught, and many in Leinster, would follow the example of Clare, and return Roman Catholic representatives; while to retain a law which prevented forty or fifty men duly elected by Irish constituencies from taking their seats must have appeared impossible to all but a few, whom respect for the undoubted sincerity of their attachment to their own religion and to the constitution, as they understood it, is the only consideration which can save them from being regarded as dangerous fanatics. At all events, the ministers were not among them. And the Duke of Wellington, though he had previously hoped, by postponing the farther consideration of the question for a year or two, to gain time for a calmer examination of it when the existing excitement had cooled down,[201] at once admitted the conviction that the result of the Clare election had rendered farther delay impossible. In his view, and that of those of his colleagues whose judgment he estimated most highly, the Irish constituencies and their probable action at future elections were not the only parties whose opinions or feelings must be regarded by a responsible statesman; but to them must be added the constituencies of the larger island also, since, while, to quote the language of Mr. Peel, "the general election of 1826 had taken place under circumstances especially calculated to call forth the manifestation of Protestant feeling throughout the country," they had returned a majority of members in favor of concession, as was proved by the recent division on Sir F. Burdett's motion. Moreover, apart from the merits or demerits of concession, taken by itself, there was a manifest danger that the keeping up of the excitement on the subject by a continued adherence to the policy of restriction might, especially among such a people as the Irish, so impulsive, and, in the lower classes, so absolutely under the dominion of the priests, kindle an excitement on other subjects also, still more difficult to deal with. It was even already certain that the Roman Catholic priests were endeavoring to tamper with the loyalty of the soldiers of their persuasion. Nor was it clerical influence alone that the government had to dread. A year or two before a Catholic Association had been formed, which included among its members all the wealthiest and ablest of the Roman Catholic laymen, noblemen, squires, and barristers. Its organization had been so skilfully conducted, and all its measures had been so carefully kept within the requirements of the law, that the crown lawyers, on being consulted, pronounced it impossible to interfere with it; and, by what may be called a peaceful agitation, it had attained such extraordinary power over the minds of the bulk of the Roman Catholics, that the Lord-lieutenant reported that "he was quite certain that they could lead on the people to open rebellion at a moment's notice, and that their organization was such that, in the hands of desperate and intelligent leaders, they would be extremely formidable[202]." Under all these circumstances, the Duke had no hesitation in deciding that it had become absolutely necessary to concede the demands of the Roman Catholics and their supporters for a removal of their political disabilities. And it was equally obvious that, the more promptly the concession was made, the more gracious it would seem, and the greater was the probability of its having the conciliatory and tranquillizing effect the hope of which made it so desirable. He was not a man to lose time when he had once made up his mind. It was already too late in the session for anything to be done in 1828; but the Parliament had scarcely been prorogued before he put his views on the subject before the King, and began, in concert with the Home-secretary, to frame a bill such as he hoped might settle the long-agitated question, without doing more violence than was necessary to the feelings of those whose opposition or reluctance he was aware he should have to encounter: among whom was the King himself, who, though thirty years before he had, with an ostentation rather unbecoming, considering his position, put himself forward as an advocate of Emancipation, had subsequently changed his opinion, and had recently taken more than one occasion to declare that he had never doubted that, as the head and protector of the Protestant religion, he was bound to refuse his assent to any relaxation of the existing law.[203] The Duke, however, was too well acquainted with his royal master's character to apprehend any real firmness of resistance from him; but he knew that a great majority of the clergy, and no small portion of the country gentlemen, were conscientiously and immovably fixed in opposition to any concession at all, some refusing to regard the question in any but a purely religious light, and objecting to associate in the task of legislation for those whom they regarded as adherents of an idolatrous superstition; while those who mingled political reasoning with that founded on theology dwelt also on the danger to be apprehended to the state, if political power were given to those whose allegiance to the King was divided with another allegiance which they acknowledged to a foreign prelate. And he had presently an unmistakable proof afforded him how great was the strength of this party in the country. Peel was one of the representatives of the University of Oxford; and, as from his earliest enjoyment of a seat in Parliament he had been a prominent opponent of the Roman Catholic claims, he considered that it was to that maintenance of a policy identified in their eyes with that Protestant ascendency which his supporters took to be both the chief bulwark and one of the most essential parts of the constitution that he owed his position as their member. With a conscientiousness which was rather overstrained, and not quite consistent with the legitimate position of a member of the House of Commons as a representative, and not a delegate, he now conceived that his change of view on the subject made it proper for him to give his constituents an opportunity of making choice of some one else who should more faithfully represent them. He accordingly resigned his seat, offering himself at the same time for re-election. But he was defeated by a very large majority, though his competitor was one who could not possibly be put on a level with him either for university distinction or for parliamentary eminence. Not the less, however, for all their difficulties and discouragements, did the ministers proceed in the course on which they had resolved. They inserted in the speech with which the King opened the session of 1829 a recommendation to the Houses "to take into consideration the whole condition of Ireland, and to review the laws which imposed civil disabilities on his Majesty's Roman Catholic subjects." And with as little delay as possible they introduced a bill to remove those disabilities. But there was another measure which they felt it to be indispensable should precede it. A previous sentence of the royal speech had described the Catholic Association as one "dangerous to the public peace, and inconsistent with the spirit of the constitution, keeping alive discord and ill-will among his Majesty's subjects, and one which must, if permitted to continue, effectually obstruct every effort permanently to improve the condition of Ireland." And the ministers naturally regarded it as their first duty to suppress a body which could deserve to be so described. They felt, too, that the large measure of concession and conciliation which they were about to announce would lose half its grace, and more than half its effect, if it could possibly be represented as a submission to an agitation and intimidation which they had not the power nor the courage to resist. They determined, therefore, to render such an imputation impossible, by previously suppressing the Association. It was evident that it could not be extinguished by any means short of an act of Parliament. And the course pursued, with the discussions which took place respecting it, show in a very clear and instructive manner the view taken by statesmen of the difference between what is loyal or illegal, constitutional or unconstitutional; their apprehension that conduct may be entirely legal, that is to say, within the letter of the law, but at the same time perfectly unconstitutional, outside of and adverse to the whole spirit of the constitution. The royal speech had not ventured to describe the Association as illegal. The Duke of Wellington expressly admitted that "in the original institution and formation of the society there was nothing strictly illegal."[204] And its founder and chief, Mr. O'Connell, had been at all times careful to inculcate on his followers the necessity of avoiding any violation of the law. But the speech had also declared the association to be "inconsistent with the spirit of the constitution." And its acts, as the Duke proceeded to describe them, certainly bore out that declaration. "Those acts consisted principally in levying a tax upon certain of his Majesty's subjects called Catholic rent, and this by means and acts of extreme violence; by appointing persons to collect these rents; and farther by adopting measures to organize the Catholic population; by appointing persons to superintend that organization; and by assuming to themselves the government of the country; and, still more, affecting to assume it. Besides, they expended this rent in a manner contrary to, and utterly inconsistent with, all law and order and the constitution of the country." No member of either House denied the accuracy of this description of the Association's proceedings. And if it were correct, it was incontrovertible that the denunciation of it as an utterly unconstitutional body was not too strong. Indeed, the fact of its "levying a tax" upon a portion of the King's subjects (to say nothing of the intimidation, amounting to compulsion, by which, as was notorious, it was in many instances exacted) was the assumption of one of the most important functions of the Imperial Parliament; it was the erection of an _imperium in imperio_, which no statesmen intrusted with the government of a country can be justified in tolerating. And this was felt by the Opposition as well as by the ministers; by the Whigs as fully as by the Tories. The most eloquent of the Whig party, Mr. Stanley, was as decided as Mr. Peel himself in affirming that the existence of the Association was "inconsistent with the spirit of the constitution," and that it was "dangerous that the people of a country should look up to any public body distinct from the government, opposed to the government, and monopolizing their attachment and obedience."[205] It was, therefore, with the almost unanimous approval of both parties that the bill framed for the suppression of the Association was received. The framing of such a bill was not unattended by difficulties, as Peel acknowledged,[206] since "no one wished to declare that every political meeting was illegal;" while at the same time it was necessary to guard against "having its enactments evaded, since a more dangerous precedent than the successful evasion of acts of the Legislature could scarcely be conceived." But the measure, as it was proposed, skilfully steered clear of these difficulties. It met them by intrusting "the enforcement of the law to be enacted to one person alone." The bill proposed "to give to the Lord-lieutenant, and to him alone, the power of suppressing any association or meeting which he might think dangerous to the public peace, or inconsistent with the due administration of the law; together with power to interdict the assembly of any meeting of which previous notice should have been given, and which he should think likely to endanger the public peace, or to prove inconsistent with the due administration of the law." And farther, "to interdict any meeting or association which might be interdicted from assembling, or which might be suppressed under this act, from receiving and placing at their control any moneys by the name of rent, or any other name." But the act was not to be one of perpetual duration. It could not be concealed that such a prohibition or limitation of the general right of public meeting and public discussion was a suspension of a part of the constitution; and therefore the ministers were content to limit its operation "to one year and the end of the then next session of Parliament," feeling "satisfied that there would be no objection to continue it, if there should be any necessity for its continuance." And this limitation was a substantial mitigation of its severity. It made the bill, as Mr. Stanley correctly described it, "not a permanent infringement on the constitution, but a temporary deviation from it, giving those powers which were necessary at the moment," but not maintaining them an hour longer than they were necessary. And this seems to be the course most in accordance with the spirit of the constitution, with former practice, with common-sense. Deeds which violate the letter of the law can be dealt with by the law. But actions or courses of action which, even if they may be thought to overstep the law, transgress it so narrowly as to elude conviction, can only be reached by enactments which also go in some degree beyond the ordinary law; and, so going beyond it, are to that extent encroachments on the ordinary privileges and rights of the subject, and suspensions of the constitution. But the very term "suspension" shows that the power conferred is but temporary, otherwise it would be synonymous with abrogation. And all parties may wisely agree, as they did in this instance, to a temporary suspension of the people's rights, though there would be none to whom their permanent abrogation would not be intolerable. The bill, then, for the suppression of the Association passed with universal approval, and it may be regarded as furnishing a model for dealing with similar associations, if ever they should arise. And as soon as it was passed Mr. Peel introduced the greater measure, that for the repeal of the disabilities. In drawing the necessary bill the ministers had had two questions of special importance to consider: firstly, whether it should be unlimited concession which should be granted, such as would throw open to the Roman Catholics every kind of civil office; and, secondly, whether it should be accompanied by any other measure, which might render it more palatable to its adversaries, as diminishing a portion at least of the dangers which those who regarded the question in a purely political light most apprehended. On the first point it was determined that, with the exception of three civil offices, those of the Lord Chancellors of England and Ireland and the Lord-lieutenant of Ireland,[207] and some of a purely ecclesiastical character, such as the Judge of the Court of Arches, every kind of preferment should be opened to the Roman Catholics.[208] The declaration against Transubstantiation and the oath of supremacy, certain expressions in which were the obstacles which had hitherto kept the Roman Catholics out of office and out of Parliament, were to be repealed, and another to be substituted for them which should merely bind him who took it to defend the King, to maintain the Protestant succession, and to declare that "it was not an article of his faith, and that he renounced, rejected, and abjured the opinion, that princes excommunicated or deposed by the Pope might be deposed and murdered; and that he disclaimed, disavowed, and solemnly abjured any intention to subvert the present Church Establishment as settled by law within this realm, and that he would never exercise any privilege to which he was or might become entitled to disturb or weaken the Protestant religion or Protestant government in this kingdom."[209] The second question was, it will probably be confessed, even more important. Pitt, who had always contemplated, and had encouraged the Irish Roman Catholics to contemplate, the abolition of their political disabilities as an indispensable appendage to, or, it may be said, part of the Union, had designed, farther, not to confine his benefits to the laymen, but to endow the Roman Catholic clergy with adequate stipends, a proposal which was received with the greatest thankfulness, not only by the Irish prelates and clergy themselves, but also by the heads of their Church at Rome, who were willing, in return, to give the crown a veto on all the ecclesiastical appointments of their Church in the two islands.[210] The justice of granting such an endowment could hardly be contested. The Reformation in Ireland, if what had taken place there could be called a reformation at all, had been wholly different from the movement which had almost extinguished Popery in England. The great majority of the Irish people had never ceased to adhere to the Romish forms, and the Reformation there had been simply a transfer of the property of the Romish Church to the Church of England, unaccompanied by any corresponding change of belief in the people, who had an undeniable right to claim that the state, while making this transfer, should not deprive of all provision the clergy to whose ministrations they still clung with a zeal and steadiness augmented rather than diminished by the discouragements under which they adhered to them. The policy of granting such endowment was equally conspicuous. No measure could so bind the clergy to the government; and no such security for the loyalty and peaceful, orderly behavior of the poorer classes could be provided, as might be expected from the attachment to the government of those who had over them an influence so powerful in its character and so unbounded in its strength as their priests. And the Duke of Wellington, who had at one time been himself the Irish Secretary, and, as an intimate friend of Lord Castlereagh, who held that office at the time of the Union, had a perfect knowledge of what had been intended at that time--and who was, of course, aware of the very decided favor which the House of Commons had so lately shown to the project--proposed to follow out Pitt's plan in that particular, and to connect a provision[211] for the Roman Catholic clergy with the removal of their political disabilities from the laymen. Unluckily, Peel, who, throughout the whole transaction, was, of all the cabinet, the counsellor on whose judgment he most relied, took a different view of the expediency of making such a provision, having, indeed, "no objection to it in point of principle." But he saw many practical difficulties, which he pressed on the Duke with great earnestness. He argued that for the government "to apply a sum of money to the payment of the ministers of the Church of Rome in Ireland, granting a license for the performance of their spiritual functions, would be a virtual and complete supersession, if not repeal, of the laws which prohibit intercourse with Rome;" and asked, "Could the state affect to be ignorant that the bishop whom it paid derived his right to be a bishop from the See of Rome?" Another difficulty he found in the apprehension that "the admission of the right of the Roman Catholic clergy to an endowment might produce similar claims on the part of the Dissenters in England, who contribute in like manner to the support of their own religion and of the established religion also." He suggested, farther, that, if the Roman Catholic priest were allowed, in addition to his stipend, "to receive dues, Easter offerings, etc., from his parishioners, his condition would then be better than that of the ministers of the Established Church in many of the parishes in Ireland." And, finally, he urged the practical objection, that the endowment would greatly strengthen the opposition to the whole measure, by the reluctance which, "on purely religious grounds," many would feel to the endowment of the Roman Catholic faith, who would yet be inclined to acquiesce in the removal of the disabilities, "on grounds rather political than religious." He was "not insensible to the importance of establishing some bond of connection between the Roman Catholic clergy and the state;" but he believed that the omission of a provision for their endowment "was important to the ultimate success of the government in proposing the measure before them." It is not probable that the Duke was greatly influenced by the first, or what may be called the constitutional, objection--that any concert with the Papal Court with respect to the appointments or endowments of its clergy would be a violation of the act which prohibited any intercourse with Rome. The removal of the disabilities required the repeal of one act of Parliament; and, if the holding communications with Rome on the subject of clerical appointments should be so construed as to require the repeal of another, it would hardly seem that there could be any greater violation of or departure from the principles of the constitution in repealing two acts than in repealing one. As to the second of Peel's objections, the English Dissenters could not possibly be said to stand on the same ground as the Irish Roman Catholics, since their ministers had certainly never been deprived by any act of the state of any provision which they had previously enjoyed; but their position as unendowed ministers was clearly one of their own making. The possible inferiority in point of emolument of some of the Protestant cures in Ireland to that which might be enjoyed by some of the Roman Catholic clergy could hardly be regarded as the foundation of any argument at all, since no law had ever undertaken, or ever could undertake, to give at all times and under all circumstances equal remuneration to equal labors. But the consideration last suggested was exactly the one to influence such a mind as that of the Duke of Wellington, generally contented to deal with a present difficulty. He was determined to carry Emancipation, because he saw that the Clare election had made it impossible to withhold or even to delay it; and, being so determined, he was desirous to avoid encumbering it with any addition which might increase the opposition to it. At the same time he was far from being sanguine of its effect, "with whatever guards or securities it might be accompanied, to pacify the country or to avert rebellion,"[212] which, in his apprehension, was undoubtedly impending; and, under the influence of these combined feelings, he eventually withdrew that clause from the bill. It was accompanied by another bill, disfranchising the forty-shilling freeholders in Ireland. They were a class of voters sunk in the deepest poverty, and such as certainly could not well be supposed capable of forming, much less of exercising, an independent judgment on political matters. Yet this bill is remarkable as having been the only enactment passed since the Revolution to narrow the franchise. It had no opposition to anticipate from English or Scotch members, and was accepted by the Irish members as the price of Emancipation. No measure that had ever been framed since the Revolution had caused such excitement in the country; but the preponderance of feeling in its favor was equally marked in both Houses of Parliament. In the House of Commons 320 supported it, while only 142 could be marshalled against it. In the House of Lords 213 divided for it against 109. And in April it received the royal assent. The general policy of removing the disabilities it is not necessary to discuss here. It is quite clear that the Clare election had rendered it impossible to maintain them. And if some of those who judge of measures solely by their effects still denounce this act, as one which has failed in its object of tranquillizing Ireland, many of those who admit the failure ascribe it to the omission to accompany it by one securing a state endowment for the Roman Catholic clergy, pronouncing it, without that appendage, a half measure, such as rarely succeeds, and never deserves success. However that may be, it is certain that the measure, coupled with the repeal of the Test Act of the previous year, was one which made a great and permanent change in the practical working of the constitution of the kingdom, as it had been interpreted for the last one hundred and fifty years. Of that constitution one of the leading features, ever since the Restoration, had been understood to be the establishment and maintenance of the political as well as the ecclesiastical ascendency of the Church of England. On that ascendency the repeal of the Test Act in 1828 had made the first, and that a great, inroad, and the present statute entirely abolished it as a principle of government. So far as political privileges went, every Christian sect was now placed on a footing of complete equality. But so to place them may fairly be regarded as having been required not only by justice and expediency, but by reasons drawn from the history of the nation and from the circumstances under which these disabilities had been imposed. Before the Rebellion no one was excluded from the English Parliament on account of his religion, whether he was a Roman Catholic, a Presbyterian, or a member of any other of the various sects which were gradually arising in the country. It was not till after the Restoration that a recollection of the crimes of the Puritans, when they had got the upper-hand, and the fear of machinations and intrigues, incompatible with the freedom and independence of the people, which were imputed to the Roman Catholics, gave birth to the statutes depriving both Protestant and Roman Catholic Non-conformists of all legislative and political power. The restrictions thus imposed on the Presbyterians and other Protestant sects had, as we have seen, been gradually relaxed by a periodical act of indemnity. Indeed, after the Union with Scotland, it was impossible with any show of consistency to maintain them, since, as it has been already pointed out, after Presbyterianism had been recognized as the established religion of Scotland, it would have seemed strangely unreasonable to regard it as a disqualification on the southern side of the Border. But, as long as the Stuart princes were from time to time disquieting the government by their open invasions or secret intrigues, no such relaxation could with safety be granted to the Roman Catholics, since it could hardly be expected that they would forbear to employ any power which they might acquire for the service of a prince of their own religion. That danger, however, which ever since 1745 had been a very shadowy one, had wholly passed away with the life of the last Stuart lay prince, Charles Edward; and his death left the rulers of the kingdom and advisers of the sovereign free to take a different and larger view of their duty to the nation as a whole. It was notorious that the number of Non-conformists was large. In the middle of the last century it had received a considerable accession through the institution of the new sect of Wesleyan Methodists; which, through the supineness of the clergy of the Established Church in that generation, had gradually increased, till it was estimated that the various Dissenting sects in England equalled at least half the number of the members of the Established Church. In Wales they were believed to form the majority. In Scotland three-fourths of the people were Presbyterians; and in Ireland the Roman Catholics outnumbered the Protestants in nearly the same proportion. Taking England, Wales, Scotland, and Ireland together, a calculation which reckoned the different sects of Protestant and Roman Catholic Non-conformists united at half the entire population would probably not have erred very widely from the truth. It must have been the aim of every statesman deserving of the name to weld these different religious parties into one harmonious whole, as far as their civil position went. And measures which had that tendency could not be foreign to the constitution, properly understood. A constitution which confines its benefits to one-half of a nation hardly merits the title of a constitution at all. For every constitution ought to extend its protection and its privileges equally to every portion of the people, unless there be some peculiarity in the principles or habits of any one portion which makes its participation in them dangerous to the rest. It had undoubtedly been the doctrine of Pitt, and of the greater part of those who since his time had held the reins of government, that if any portion of the King's subjects did cherish a temper dangerous to the rest, it was because they were debarred from privileges to which they conceived themselves to have a just right, and that their discontent and turbulence were the fruit of the restrictions imposed on them. In proposing to remove such a grievance Pitt certainly conceived himself to be acting in accordance with the strictest principles of the constitution, and not so much innovating upon it as restoring it to its original comprehensiveness. And so of the measure, as it was now carried, it will apparently be correct to say that, though it did make an important change in the practical working of the constitution, it made it only by reverting to the fundamental principles of civil and religious liberty, to which every subject had a right; which had only been temporarily restrained under the apprehension of danger to the state, and which the cessation of that apprehension made it a duty to re-establish in all their fulness. But it is by no means clear that in the conduct of the measure the constitution was not violated in one very important point, the proper relation subsisting between a constituency and its representative, by Mr. Peel's resignation of his seat for the University of Oxford. That he was sensible that the act stood in need of explanation is proved by the careful statement of the motives and considerations that determined him to it, which he drew up twenty years afterward. They were of a twofold character. To quote his own words: "When I resolved to advise, and to promote to the utmost of my power, the settlement of that question, I resolved at the same time to relinquish, not only my official station,[213] but the representation of the University of Oxford. I thought that such decisive proofs that I could have no object, political or personal, in taking a course different from that which I had previously taken, would add to my influence and authority, so far, at least, as the adjustment of the particular question at issue was concerned." "I cannot deny that in vacating my seat I was acting upon the impulse of private feelings, rather than upon a dispassionate consideration of the constitutional relations between a representative and his constituents. I will not seek to defend the resolution to which I came by arguments drawn from the peculiar character of the academic body, or from the special nature of the trust confided to its members; still less will I contend that my example ought to be followed by others to whom may be offered the same painful alternative of disregarding the dictates of their own consciences, or of acting in opposition to the opinions and disappointing the expectations of their constituents. I will say no more than that my position was a very peculiar one, that I had many painful sacrifices to make, and that it would have been a great aggravation of them, if it could have said with truth that I was exercising an authority derived from the confidence of the University to promote measures injurious, in her deliberate judgment, either to her own interests or to those of the Church." No one would willingly censure too severely an act dictated by a sense of honor, even if somewhat overstrained and too scrupulously delicate; but when Mr. Peel speaks of "defending" or not defending his deed, he clearly admits it to be one open to impeachment. And when he forbears to "contend that his example ought to be followed," he seems practically to confess a consciousness that any defence against such impeachment must fail; while the last sentence quoted above involves an assertion that a constituency (in this instance one of the two most important constituencies in the kingdom) could be justified in regarding a measure required by the safety, or at least by the welfare, of the state, as injurious to its own interests; and so far admits a possible severance between the interests of a particular class or body and those of the whole community, which can have no real existence. That, however, is not the point to be investigated here. The charge, as it seems, to which Mr. Peel's deed lays him open is, that by it he lowered the position and character of a member of Parliament from those of a representative to those of a delegate. It was an adoption of the principle laid down for his own guidance by a colleague of Mr. Burke above fifty years before, and indignantly repudiated by that great political philosopher, as proceeding from an entire misapprehension of the rights of a constituency and of a member[214] of Parliament. He told the electors of Bristol that "when they had chosen their member, he was not a member of Bristol, but a member of Parliament; and that if the local constituent should have an interest, or should form an opinion, evidently opposite to the real good of the rest of the community, the member for that place ought to be as far as any other from any endeavor to give it effect;" that a representative "owes to his constituents, not his industry only, but his judgment, and betrays instead of serving them, if he sacrifices it to their opinion." And in so saying he carried with him the concurrence and approval of all his contemporaries whose sentiments on such a question were entitled to weight. In the States-general of France each member was, by the original constitution of that body, a delegate, and not a representative. He could not even remonstrate against the most oppressive grievance of which the previous instructions of the constituent body had not instructed him to complain; and this limitation of his duties and powers was, undoubtedly, one very principal cause which led to the States-general so rapidly falling into utter disrepute. It was no light thing to take a step which had a tendency to bring down the British Parliament to the level of the despised and long-disused States-general. And it is the more necessary to put the case in a clear and true light, because at the present day there is an evident disposition on the part of constituencies to avail themselves of Peel's conduct in this instance as a precedent, in spite of his protest against its being so regarded, and to fetter their representatives with precise instructions; and a corresponding willingness on the part of candidates to purchase support at elections by a submissive giving of pledges on a variety of subjects, so numerous as to leave themselves no freedom of judgment at all. On the great majority of subjects which come before Parliament, a member of Parliament, if he be a sensible and an honest man, has a far better opportunity of obtaining correct information and forming a sound opinion than can be within reach of any constituency, whose proneness to misjudge is usually in exact proportion to the magnitude of its numbers. Every elector justifiably may, and naturally will, seek to ascertain that between the candidate whom he supports and himself there is a general conformity of opinion; an absolute identity he will never find, and he has no right to ask.[215] Notes: [Footnote 182: £118,776,000. Alison, c. lxxvi.] [Footnote 183: See Lord Malmesbury's account of their first interview.--_Diaries of Lord Malmesbury_, iii., 218.] [Footnote 184: "Parliamentary Debates," series 2, ii., 632.] [Footnote 185: Mr. Brougham gave his opinion that if the Duke of York, or any other member of the royal family, had been named, it would have been offensive to the Queen; but the measure adopted he regarded as of a neutral character. (Mentioned by Lord Liverpool, "Life of Lord Liverpool," iii., 55.)] [Footnote 186: "Minutes of Cabinet," dated 10th and 14th February, 1820, forwarded the King by Lord Liverpool ("Life of Lord Liverpool," iii., 35-88).] [Footnote 187: "Life of Sir J. Mackintosh," by R.J. Mackintosh, ii., 110, 116.] [Footnote 188: "Lives of the Chief-justices," iii., 171.] [Footnote 189: In a letter on the subject to Lord Liverpool, the Duke goes the length of calling the proposed bill "an experiment which, should it fail, must entail the dreadful alternative of the entire ruin of the landed interests of the empire, with which he is decidedly of opinion that the nation must stand or fall."--_Life of Lord Liverpool_, iii., 434.] [Footnote 190: At one time it was the fashion with writers of the Liberal party to represent Lord Liverpool as led by Lord Castlereagh in the earlier, and by Canning in the later, part of his administration; but Lord Liverpool's correspondence with both these ministers shows clearly that on every subject of foreign as well as of home policy he was the real guide and ruler of his cabinet. Even the recognition of the independence of the South American provinces of Spain--which is so often represented as exclusively the work of Canning--the memorandum on the subject which Lord Liverpool drew up for the cabinet proves that the policy adopted was entirely his own, and that as such he adhered to it resolutely, in spite of the avowed disapproval of the Duke of Wellington and the known unwillingness of the King to sanction it; and it may be remarked (as he and Lord Castlereagh have sometime been described as favoring the Holy Alliance), that the concluding sentence of his letter to the Duke on the subject expresses his hostility, not only to that celebrated treaty, but to the policy which dictated and was embodied in it. (See Lord Liverpool's memorandum for the cabinet and letter to the Duke of Wellington, December 8, 1824.)--_Life of Lord Liverpool_, iii., 297-305.] [Footnote 191: See ante, p. 222.] [Footnote 192: "With much prudence or laudable disinterestedness," says Hallam ("Constitutional History," ii., 532).] [Footnote 193: The last time had been in 1790, when there had been a majority of 187 against it.--_Peel's Memoirs_, i., 99.] [Footnote 194: 237 to 193.] [Footnote 195: "Peel's Memoirs," i., 68.] [Footnote 196: "Wellington's Civil Despatches," iv., 453.] [Footnote 197: See his letter to Peel, March 23 ("Peel's Memoirs," i., 92-100).] [Footnote 198: The entry of this bill in Cobbett's "Parliamentary History" is: "The House of Commons testified a very extraordinary zeal in unravelling the Popish Plot, and, to prevent mischief in the interval, passed a bill to disable Papists from sitting in either House of Parliament," to which the Lords, when the bill came up to their House, added a proviso exempting the Duke of York from its operation. An. 1678; October 26 to November 21.---_Parliamentary History_, iv., 1024-1039.] [Footnote 199: In the House of Commons the majority for Sir F. Burdett's resolution was six--372 to 266. But, in the House of Lords, Lord Lansdowne, moving the same resolution, was defeated by forty-five--182 to 137.] [Footnote 200: See Fitzgerald's letter to Peel ("Peel's Memoirs," i., 114).] [Footnote 201: "Peel's Memoirs," i., 121.] [Footnote 202: See "Lord Anglesey's Letters," _ibid._, pp. 126, 147.] [Footnote 203: As early as the year 1812, on the negotiations (mentioned in a former chapter) for the entrance of Lord Grenville and Lord Grey into the ministry, the Duke of York mentioned to both those noblemen that the Regent had an insuperable objection to the concession of Emancipation. And it seems probable that it was the knowledge of his sentiments on that point that greatly influenced the course which Lord Liverpool subsequently pursued in regard to that question.--See _Life of Lord Liverpool_, i, 381.] [Footnote 204: Speech on moving the second reading of the bill in the House of Lords, February 19, 1829 ("Hansard," xx., 389).] [Footnote 205: Speech on the first reading of the bill, February 10 ("Hansard," xx., 208).] [Footnote 206: Speech on the first reading ("Hansard," xx., 198).] [Footnote 207: An amendment was proposed by Lord Chandos to add the office of Prime-minister to these three, on the ground that if a Roman Catholic were Prime-minister "he might have the disposal of all the patronage of the state and the Church vested in his hands." But Mr. Peel pointed out that the law of England "never recognized any such office as that of Prime-minister. In the eyes of the law the ministers were all on an equality." And the position, such as it was, being a conventional one, was not necessarily connected with the office of First Lord of the Treasury. "In a recent instance his late right honorable friend, Mr. Canning, had determined to hold the office of Prime-minister with that of Secretary of State. And when Lord Chatham was Prime-minister, he did not hold the office of First Lord of the Treasury." At the same time he explained that the impropriety of intrusting a Roman Catholic with Church patronage was already guarded against in the bill, a clause of which provided that "it should not be lawful for any person professing the Roman Catholic religion directly or indirectly to advise the crown in any appointment to or disposal of any office or preferment, lay or ecclesiastical, in the united Church of England and Ireland, or of the Church of Scotland."--_Hansard_, xx., 1425.] [Footnote 208: Many years afterward the restriction as to the Lord Chancellorship of Ireland was abolished.] [Footnote 209: The plan which Pitt had intended to propose was to substitute in lieu of the Sacramental test a political test, to be imposed indiscriminately on all persons sitting in Parliament, or holding state or corporation offices, and also on all ministers of religion, of whatever description, etc., etc. This test was to disclaim in express terms the sovereignty of the people, and was to contain an oath of allegiance and "fidelity to the King's government of the realm, and to the established constitutions of Church and state."--Letter of Lord Grenville, given in _Courts and Cabinets of George III._, and quoted by Lord Stanhope, _Life of Pitt_, iii., 270. This plan seems very preferable to that now adopted, since it removed every appearance of making a distinction between the professors of the different creeds, when the same oath was to be taken by all indifferently.] [Footnote 210: The question had been discussed with the highest Papal authorities more than once since the beginning of the century. In 1812 Mgr. Quarantotti, the prelate who, during the detention of the Pope in France by Napoleon, was invested with the chief authority in ecclesiastical affairs at Rome, in a letter to the Vicar-apostolic, Dr. Poynter, formally announced the consent of the Papal See to give the King a veto on all ecclesiastical appointments within the United Kingdom; and, after his return to Rome, Pio VII. himself confirmed the former title by a second addressed, by his instructions, to the same Dr. Poynter, which letter, in 1816, was read by Mr. Grattan in the House of Commons, it being throughout understood that this concession of the veto to the King was conditional on the abolition of the disabilities and the endowment of the priesthood. And in 1825, after Lord Francis Egerton's resolution had been carried in the House of Commons, Dr. Doyle, one of the most eminent of the Roman Catholic bishops in Ireland, in an examination before a committee of the House of Lords, expressed the willingness of the Roman Catholic clergy to accept a state provision, if it were permanently annexed to each benefice, and accompanied with a concession of an equality of civil rights to the Roman Catholic laity.--See _Life of Lord Liverpool_, ii, 145; _Diary of Lord Colchester, March_ 17, 1835, iii., 373; _Peel's Memoirs_, i., 306, 333 _seq._] [Footnote 211: The sum to be thus employed seems to have been intended to be £300,000 a year.--_Peel's Memoirs_, i., 197. On the whole question of the payment and Peel's objections to it, see _ibid._, pp. 197, 306.] [Footnote 212: See his "Civil Despatches," iv., 570. In February, 1829, he said to Lord Sidmouth, "It is a bad business, but we are aground." "Does your Grace think, then," asked Lord Sidmouth, "that this concession will tranquillize Ireland?" "I can't tell; I hope it will," answered the Duke, who shortly discovered, and had the magnanimity to admit, his mistake.--_Life of Lord Sidmouth_, iii., 453. It is remarkable that the question of endowing the Roman Catholic clergy was again considered by Lord John Russell's ministry in 1848. A letter of Prince Albert in October of that year says, with reference to it: "The bishops have protested against Church endowment, being themselves well off; but the clergy would gratefully accept it if offered, but dare not avow this."--_Life of the Prince Consort_, ii., 186.] [Footnote 213: This first extract refers in part to the proposal which he made to the Duke to resign his office as Secretary of State, and to support the Emancipation as a private member, a design which he only relinquished at the Duke's earnest entreaty. The second extract refers to the seat in Parliament alone.--See _Peel's Memoirs_, i., 310, 312.] [Footnote 214: Speech to the electors of Bristol on being declared by the sheriffs duly elected member for that city, November 3, 1774.--_Burke's Works_, iii., 11, ed 1803.] [Footnote 215: It is worth pointing out, however, that, as if it were one of the natural fruits of the Reform Bill, the Liberal Committee of the Livery of London in 1832 passed a series of resolutions asserting the principle of delegation without the slightest modification; one resolution affirming "that members chosen to be representatives in Parliament ought to do such things as their constituents wish and direct them to do;" another, "that a signed engagement should be exacted from every member that he would at all times and in all things act conformably to the wishes of a majority of his constituents, or would at their request resign the trust with which they had honored him."--_Annual Register_, 1832, p. 300; _quoted by Alison_, 2d series, v., 355.] CHAPTER IX. Demand for Parliamentary Reform.--Death of George IV., and Accession of William IV.--French Revolution of 1830.--Growing Feeling in Favor of Reform.--Duke of Wellington's Declaration against Reform.--His Resignation: Lord Grey becomes Prime-minister.--Introduction of the Reform Bill.--Its Details.--Riots at Bristol and Nottingham.--Proposed Creation of Peers.--The King's Message to the Peers.--Character and Consequences of the Reform Bill.--Appointment of a Regency.-- Re-arrangement of the Civil List. One of Pitt's great measures of domestic, apart from financial or commercial, policy having become law, it seemed in some degree natural to look for the accomplishment of the other, a reform of the House of Commons, which, indeed, after the conclusion of the war, had been made at times the subject of earnest petition, being one in which a far greater number of people had a lively interest than that excited by Catholic Emancipation. The Englishmen who had advocated that measure had been striving for the adoption of a principle rather than for a concession from which they could expect any personal benefit, since very few in any English or Scotch constituency were Roman Catholics, or desired to return a Roman Catholic representative. But thousands in every county, including the whole body of citizens of some of the largest and most flourishing towns, felt a personal concern in the attainment of Parliamentary Reform, as the measure which would give them, and which could alone give them, that voice in the affairs of the kingdom to which they felt themselves entitled, but which they had never yet enjoyed. And before the end of the next session the prospect of the early success of their aspirations was greatly increased by the death of the King. George IV., who in his early manhood had attached himself to the Whigs with an ardor and ostentation altogether unbecoming his position as heir to the throne, had formally separated himself from them after the death of Fox in 1806, and had gradually come to regard their adversaries with a favor as exclusive as he had formerly shown to themselves. But the Duke of Clarence, who now succeeded to the throne, had always shown a leaning toward the Whigs, who of late had been commonly regarded as the reforming party. While the war lasted, and during the few remaining years of the reign of George III., no active steps toward Reform were taken in Parliament; but under George IV. more than one borough convicted of gross and habitual corruption, as has been mentioned, was disfranchised. Grampound was so punished in the time of Lord Liverpool, and its members were transferred to Yorkshire, so as to give that largest of the counties four representatives; and it may be remarked that this arrangement caused the Prime-minister to suggest an improvement in the details of an election--which was afterward universally adopted--when, in reply to a remark on the great inconvenience that was found to exist in taking the poll at once in so large a county as Yorkshire, he hinted at the possibility of obviating that difficulty by allowing polls to be taken in different parts of the county. And, since the Duke had been in office, two more boroughs, Penrhyn and East Retford, had also been disfranchised; though the Reformers failed in their endeavor to get the seats thus vacated transferred to Manchester and Birmingham. With the accession of the new sovereign, however, they became more active. They found encouragement in other circumstances also. Many of those who were commonly called the Ultra Tories had been so alienated from the Duke's government by the Emancipation Act, that they were known to be ready to coalesce with almost any party for the sake of overturning his administration. Moreover, as forty years before, the French Revolution of 1789 had caused great political excitement in England, so now the new French revolution of July acted as a strong stimulus on the movement party in this as well as in other countries; and altogether there was a very general feeling that the time for important changes had come. The Duke of Wellington was not blind to the prevalence of the idea; and, being by no means willing to admit that his own policy of the preceding year had in the least contributed to strengthen it, he conceived it to be his duty to discountenance it by every means in his power; but the steps which he took with that object only invigorated and inflamed it. As Prime-minister, he inserted in the speech with which the new sovereign opened his first Parliament in the autumn after his accession a general panegyric on that "happy form of government under which, through the favor of Divine Providence, this country had enjoyed for a long succession of years a greater share of internal peace, of commercial prosperity, of true liberty, of all that constitutes social happiness, than had fallen to the lot of any other country of the world." And in his own character, a few nights afterward, he added a practical commentary on those sentences of the royal speech, when, in allusion to Lord Grey's expression of a hope that the ministers would prepare "to redress the grievances of the people by a reform of the Parliament," he repudiated the suggestion altogether, avowing that the government were contemplating no such measure, and adding that "he would go farther, and say that he had never read or heard of any measure up to that moment which in any degree satisfied his mind that the state of the representation could be improved or rendered more satisfactory to the country at large than at that moment. He was fully convinced that the country possessed at that moment a Legislature which answered all good purposes of legislation to a greater degree than any Legislature had ever answered them in any country whatever.... And he would at once declare that, as far as he was concerned, as long as he held any station in the government of the country, he should always feel it his duty to resist any measure of Reform when proposed by others." Such uncompromising language was, not unnaturally, regarded by the Opposition in both Houses as a direct defiance, and the challenge was promptly taken up both in and out of Parliament. It happened that at this moment the ministry was extremely unpopular in the City; not, indeed, on account of his hostility to Reform, but in consequence of the recent introduction by the Home-secretary of a police force in London, on the model of one which the Duke himself, when Irish Secretary, had established in Dublin. The old watchmen had been so notoriously inefficient that it might have been expected that the change would have been hailed with universal approval and gratitude, but it met with a very different reception. Many of the newspapers which had not yet forgiven the passing of Catholic Emancipation made it a ground for the strongest imputations on the Duke himself, some of them even going the length of affirming that he aimed at the throne, and that the organization of this new force was the means on which he reckoned for the attainment of his object. No story is too gross for the credulity of the populace. To hear of such a plot was to believe it; to believe it was to resolve to defeat it; and at the beginning of November the government received several warnings that a plan was in agitation to raise a formidable riot on Lord Mayor's Day, when the King and the Duke himself were expected to dine with the Lord Mayor. The Lord Mayor even wrote to the Duke to suggest the prudence of his coming "strongly and sufficiently guarded," and the result of this advice was certainly strange. The Duke cared little enough about personal danger to himself, but he regarded himself as specially bound by his office to watch over the public tranquillity, and to do nothing that might be expected to endanger it. He was at least equally solicitous that a new reign should not open with a tumult which could in any way be regarded as an insult to the King; and, under the influence of these feelings, he took the responsibility of giving the King the unprecedented advice of abandoning his intention of being present at the Guildhall banquet. Such a step had an inevitable tendency to weaken the ministry still farther by the comments which it provoked. Even his own brother, Lord Wellesley, did not spare his sarcasms, pronouncing it "the boldest act of cowardice he had ever heard of;" while the Reformers ascribed the unpopularity which it confessed to the Duke's declaration against any kind or degree of Reform; and, to test the correctness of this opinion, Mr. Brougham, who, in the House of Commons, was the most eloquent champion of Reform, gave notice of a motion on the subject for the 16th of November. Before that day came, however, the ministry had ceased to exist. On the preceding evening it had been defeated on a proposal to refer to a select committee the consideration of the Civil List, a new settlement of which was indispensable at the beginning of a new reign, and on the morning of the 16th the Duke resigned, not only advising the King to intrust the formation of the new cabinet to Lord Grey--who was universally recognized as the head of the Whig party--but recommending his Majesty also to be prepared to consent to a measure of moderate Reform, which, though he could not bring himself to co-operate in it, he was satisfied that the temper of the House of Commons, if not of the people out-of-doors also, rendered unavoidable.[216] The advice was taken. Lord Grey had no difficulty in forming a ministry in which the Whigs were aided by the junction of several of the more moderate Tories, who had regarded Canning as their leader; and from the very beginning Parliamentary Reform was proclaimed to be the one great object of his government. It would be more correct to call it a Reform of the House of Commons, since there was no idea of interfering with the House of Lords, even in those parts of it which were of a representative character, the Scotch and Irish peers. But, by whatever title the ministerial policy was designated, no one misunderstood what was intended; and as Parliament was, after a few days, adjourned over the Christmas holidays, the recess was spent by a sub-committee of the cabinet in framing a measure. The great extension of our trade, which was the fruit partly of his wise commercial policy, and partly of the long war; the rapid and prodigious growth of our manufactures, developed by the inventive ingenuity of our mechanics and engineers, had given a consideration and influence to the commercial, manufacturing, and moneyed classes which could not be disregarded. The land-owners, who had previously almost monopolized the representation, no longer constituted the wealthiest class of the community. Pitt himself had raised a banker to the peerage. More recently, men closely connected with the commercial classes had become cabinet ministers, one of whom had even subsequently sacrificed office to his feeling of the propriety of enfranchising a single town, Birmingham. But there were other towns at least equal in importance to Birmingham which were unrepresented, and it was clearly impossible to maintain a system which gave representatives to boroughs like Gatton, Old Sarum, or Corfe Castle--where the electors scarcely outnumbered the members whom they elected--and withheld them from large and opulent manufacturing centres like Manchester, Leeds, and Sheffield. The enfranchisement, therefore, of these towns, and of others whose population and consequent importance, though inferior to theirs, was still vastly superior to those of many which had hitherto returned representatives, was so manifestly reasonable and consistent with the principles of our parliamentary constitution, that it was impossible to object to it. And their enfranchisement unavoidably led to the disfranchisement of the smaller boroughs, unless the House of Commons were to be enlarged to a number which was not likely to tend to the facilitation of business. Indeed, in the opinion of the framers of the bill, the House was _already too large_, and they proposed to reduce its number by upward of sixty--a step to which it is probable that many of those whose opposition contributed to defeat it subsequently repented of their resistance. Nevertheless, the line adopted by the Duke of Wellington's ministry showed that there was still a large party to whom reform on a large scale was altogether distasteful; and accordingly the bill which, under the influence of these considerations, Lord Grey's administration brought forward in the spring of 1831, gave rise to the fiercest struggles in both Houses of Parliament that had been witnessed for many generations. One Parliament was dissolved; two sessions of that which followed were opened in a single year; once the ministry itself was dissolved, though speedily reconstructed; and three bills were framed, each in some degree differing from its predecessor in some of its details, though all preserved the same leading principles of disfranchising wholly or partially the smaller boroughs; of enfranchising several large and growing towns; of increasing the number of county representatives; and of enfranchising also some classes which previously had had no right of voting. It would be a waste of time to specify the variations in the three bills. It is sufficient to confine our attention to that which eventually became law. Fifty-six boroughs were wholly disfranchised; those in which the population fell short of a certain number (2000), and where the amount of assessed taxes paid by the inhabitants was correspondingly small. Thirty more were deprived of one of their members, being those in which the population was between 2000 and 4000. And the seats thus vacated were divided between the towns which since the Revolution had gradually grown into importance, the suburbs of the metropolis, and the counties, the majority of which were now divided into two halves, each half returning two members, as many as had previously represented the whole. The boundaries of the boroughs, too, were in most cases extended. More important, perhaps, in its influence on subsequent legislation was the alteration made in the qualifications which constituted an elector. Hitherto the franchise, the right of voting at elections, had been based on property. The principle had not, indeed, been uniformly adhered to in the boroughs, where, as Lord John Russell, in the speech with which he introduced the bill, pointed out, a curious variety of courses had been adopted. "In some," as he described the existing practice, "the franchise was exercised by 'a select corporation;' that is to say, it was in the possession of a small number of persons, to the exclusion of the great body of the inhabitants who had property and interest in the place represented. In ancient times, he believed, every freeman, being an inhabitant householder resident in the borough, was competent to vote. As, however, this arrangement excluded villeins and strangers, the franchise always belonged to a particular body in every town--a body undoubtedly possessed of property, for they bore the charges of their members, and on them were assessed the subsidies and taxes voted by Parliament. But when villeinage ceased, various and opposite courses seemed to have been pursued in different boroughs. In some, adopting the liberal principle that all freemen were to be admitted, householders of all kinds, down to the lowest degree, and even sometimes beyond, were admitted. In others, adopting the exclusive principle that villeins and strangers were no part of the burgesses, new corporations were erected, and the elective franchise was more or less confined to a select body." But all these diversities and varieties were now swept away, and a uniform franchise was established, all tenants whose rent amounted to £10 receiving the franchise in boroughs, while by a kindred amendment, which was forced on the ministers at a very early stage of the measure, tenants at will whose tent amounted to £50 became entitled to vote in the counties. The arrangements for taking the poll were also greatly changed. Instead of the fifteen days which had of late been allowed for a county election, two were now thought sufficient.[217] In boroughs the time was abridged in a similar proportion, and the arrangement was facilitated by a division of counties into several convenient polling districts, so that no elector should require to travel more than a few miles to record his vote. This last change was universally accepted as a great practical improvement, from its tendency to lessen the expense of election contests, which had risen to an enormous and ruinous height. But every other part of the scheme was viewed with the greatest repugnance, not to say dread, by the Opposition; and every one of the bills was fought step by step in the House of Commons. The first bill was only carried by a majority of one; the second was absolutely rejected by the House of Lords; and on the third the ministers, after carrying it triumphantly through the Lower House, were defeated in the Upper House on a point of detail, which, though of no great importance in itself, they regarded as an indication that the peers, though they had consented to read it a second time, would insist on remodelling it to a great degree, and, if they were not allowed to do so, would again reject it altogether. Meanwhile, the people were wrought up to a pitch of frenzy absolutely unprecedented. Never had agitators, among whom some of the ministers themselves were not ashamed to appear, been so unscrupulous in their endeavors to excite discontent. One cabinet minister wrote inflammatory articles in the newspapers; another publicly called the legitimate opposition of the peers "the whisper of a faction." And their exertions soon bore fearful fruit. In London some of the peers who had been most prominent in their objections to the bill were hooted and pelted, and one, Lord Londonderry, was nearly murdered. The King and Queen were insulted by mobs in the Park, some of the rioters even openly threatening the Queen with death, because she was believed to be favorable to the anti-Reformers. In some of the most important provincial towns the discontent broke out into actual insurrection. At Bristol a tumultuous mob, whose numbers were swelled by crowds of the worst ruffians of the metropolis, sought to murder the Recorder, Sir Charles Wetherall, when he came down to that city to hold the quarter-sessions; and, when defeated in their attack on him, stormed the Mansion House, and set it, with the Bishop's Palace and other public buildings, and scores of private houses, on fire, several of the rioters themselves, who had got drunk, perishing in the flames. A similar mob rose in arms at Derby, but did less mischief, as there the magistrates knew their duty better. But Nottingham almost equalled Bristol in its horrors. Because the Duke of Newcastle was a resolute anti-Reformer, a ferocious gang attacked and set on fire the fine old Castle; and, not content with committing fearful ravages in the town, roamed over the adjacent district, attacked the houses of many of the leading country gentlemen, plundering and burning the dwellings, and in more than one instance murdering some of the inhabitants. The King had hitherto borne himself between the contending parties in the state with scrupulous fairness to both. Though, he had, probably, been taken by surprise by the sweeping character of the changes his ministers had proposed, he had given them a frank support, consenting, even at a moment's notice, to dissolve the Parliament after the unfavorable division in the House of Commons on the first bill; but he had, at the same time, warned them that he would never consent to employ any means of coercion to overbear the free decision of the House of Lords. And he had more than once rejected as unconstitutional their solicitations to allow them to make peers with that object. At last they endeavored to compel his consent by resigning their offices, though the ground for so decided a step can hardly be deemed sufficient, since the provocation which they alleged was only Lord Lyndhurst's success in carrying an amendment to take the enfranchising clauses of the bill before those of disfranchisement, so as to give the latter a more gracious appearance, as if the boroughs to be extinguished were made to suffer, not so much for their own positive unworthiness as in order to make room for others which had become of undeniably greater importance. The King took the strictly constitutional line of accepting their resignation and intrusting the Duke of Wellington with the task of forming a new administration, warning the Duke, at the same time, that he considered himself now pledged to grant a large measure of Reform; but the Duke found the task impracticable, and then, as the only means of averting farther insurrectionary tumults, which bore no slight resemblance to civil war, and might not impossibly end in it, the King did at last consent to permit the creation of a sufficient number of peers to insure the passing of the bill. But he could not overcome his repugnance to the measure as a severe blow to the constitution--one which would in effect be tantamount to the extinction of the independence of the Upper House as a legislative body; and, thinking no means unjustifiable that would avert the necessity of such a creation, he conceived the idea of authorizing his private secretary, Sir Herbert Taylor, to request the chief peers on the Opposition side to absent themselves from the division on the third reading. It seemed to him, and indeed to many of them, the only thing that could be done. Their judgment of the character and eventual consequences of the ministerial bill was unaltered; but they saw the violence of the public feeling on the subject, and the danger to the state of too stubborn and uncompromising a resistance to it, and, yielding loyal obedience to their royal master's wish, they retired from the House without voting. Those who remained passed the bill, and in the beginning of June, 1832, it became law. We have ventured in a previous chapter to call in question the propriety of the conduct of the King's father, George III., in using his personal entreaties to influence the House of Lords against the India Bill of Mr. Fox. The transaction which has been related here is the second and only other instance since the Revolution of a sovereign having recourse to such a device to sway the votes of members of either House. But the circumstances were so entirely different, nay, so diametrically opposite, that an opinion of the impropriety of the sovereign's deed in the former case imposes no obligation on the ground of consistency to censure it in the later instance. The interference of George III. was designed to thwart and defeat his ministers on a measure of which he had not previously intimated any disapproval. William IV., on the other hand, was exerting himself to support his ministers, not, as it seems probable, without some sacrifice of his own judgment. His father acted as he did to avert an inroad on his prerogative and independence, which he had been persuaded to apprehend, but the danger of which can hardly be said to have been proved beyond all question; so that even those who think the result of his action fortunate for the nation cannot defend the action as one that on any constitutional principle can be justified. The son, at a far more critical moment, adopted the course which he did adopt as the only means which he saw of extricating the state and the nation from an alternative of great calamities: the extinction of, or at least a deep wound to, the legislative independence of the House of Lords, by the following of a single precedent[218] which had ever since been universally condemned; or, on the other hand, a continuance of outrages and tumults which had already disgraced the nation in the eyes of the world, and which, if renewed and continued, could not fail to imperil the safety of the state. Such a motive may certainly be allowed to excuse the irregularity of the act. When, however, we come to consider the proposal to create peers, which drove the King to take such a step, that is a question on which, while it is still more important, it is also more difficult to form a satisfactory judgment. It was denounced by the Duke of Wellington and other peers as utterly unconstitutional and revolutionary; as a destruction of the great principle of the equality of the two Houses; as a denial to the peers of their right to form and act upon their own deliberate judgment; and as a reduction of their position to that of a body existing merely to register the decrees of the other House. Indeed, that it had this character was admitted by Lord Grey himself, with no abatement beyond such mitigation as might be found in the idea that it was only intended to affect their decision on a single question. So far it may be said that even while defending it he condemned it; _Habemus confitentem reum_. But the task of a ruler or legislator is often but a choice between difficulties, or even between manifest evils. And, even if an act or course be admitted to be intrinsically evil, taken by itself, yet, if the evil which it is calculated or designed to avert be a greater evil still, the defence is complete, or, at all events, sufficient. And this, in fact, is the principle of the justification which Lord Grey alleged. He was, perhaps, unconsciously referring to a passage in Mr. Hallam's great work on "Constitutional History" (then very recently published), in which, while discussing Sunderland's Peerage Bill, and admitting that "the unlimited prerogative of augmenting the peerage is liable to such abuses, at least in theory, as might overthrow our form of government," he proceeds to point out that in the exercise of this, as of every other power, "the crown has been carefully restrained by statutes, and by the responsibility of its advisers;" but that, while "the Commons, if they transgress their boundaries, are annihilated by a proclamation" (that is, by a dissolution) "against the ambition, or, what is much more likely, the perverse haughtiness of the aristocracy, the constitution has not furnished such direct securities.... The resource of subduing an aristocratical faction by the creation of new peers could never be constitutionally employed, except in the case of a nearly equal balance; but it might usefully hang over the heads of the whole body, and deter them from any gross excesses of faction or oligarchical spirit. The nature of our government requires a general harmony between the two Houses of Parliament."[219] In the present case no one could impute the difference between the two Houses to any "perverse haughtiness" on the part of the peers. But the difference existed, and was too deeply founded on the cautious principles of the Tory party to be surmountable by ordinary means. It was certain also that the Commons would not give way; that, without danger to the public peace, they could not give way. And this was, in fact, Lord Grey's contention: that a crisis had arisen in which compulsion must be exercised on one or other of the disagreeing parties; and that coercion of the peers by an augmentation of their number, or a threat of it, was the only compulsion practicable. In upholding this position, however, it must be remarked that he was betrayed into the use of language which was as great a violation of constitutional and parliamentary principle and usage as the action which he was recommending; language, too, which was quite unnecessary to strengthen his argument. He accused the Lords of "opposing the declared and decided wishes both of the crown and the people;" of "acting adversely to the crown;" and this introduction of the sovereign's name to overawe the assembly was unconstitutional in the highest degree. For, constitutionally, the sovereign has no right to signify his opinion, nor, indeed, any recognized means of signifying it but by giving or withholding his royal assent to measures which the two Houses have passed. On any bill which has not yet been passed by them he has, as has been already implied, no legitimate means whatever of expressing his judgment. The time has not come for him to do so. Moreover, the statement was, probably, not believed by any one to be strictly true, for it was pretty generally understood that the King would have preferred a far more moderate measure. But, indeed, in the very speech in which the Prime-minister made this use of the King's name he presently added an observation which was a sufficient condemnation of his previous language. For, in denouncing the "vile attacks which had been made on his Majesty in the public press," and disclaiming all share in them (a disclaimer which however true of himself, could not, it is believed, have been uttered with equal truth by all his colleagues), he pointed out that "it ought always to be recollected that it is contrary to the principles of the constitution to arraign the personal conduct of the sovereign." It follows, as a matter of course, that it is equally contrary to those principles to allege his personal opinions in either House on any measure before it, since, if alleged, they must be open to criticism; unless, indeed, the mere allegation of the royal sentiments were to be taken as decisive of the question, in which case all freedom of discussion would be at once extinguished. But this irregularity, into which the Prime minister was apparently betrayed by his desire of victory, must not be allowed to affect our verdict on the main question; and, now that the lapse of time has enabled us to contemplate dispassionately the case on which he had to decide, it will, probably, be thought that his justification of his conduct in recommending a creation of peers is fairly made out. That, under any pressure short of that, the peers would have again rejected the Reform Bill, or at least would have pared it down to much smaller proportions than would have satisfied the popular demand for Reform, may be regarded as certain; and equally certain that such a line of conduct would have led to a renewal of disgraceful and dangerous tumults. The minister, therefore, as has been said before, had to choose between two evils. It was a grievous dilemma; but those who had to deal with it (even while it may be admitted that they cannot be held wholly free from blame, as having themselves contributed by their own language to the popular excitement and irritation)[220] may be excused for thinking the wound inflicted on the constitution, by thus overbearing the voice of one House of Parliament on a single occasion, less formidable in its immediate fruit, and more capable of being remedied and retrieved, than that which would have followed from a renewal of insurrectionary tumults, even if they should have come short of actual civil war. One critic of these transactions[221] whose experience and high reputation entitle his opinion to respectful consideration, after reminding his readers that, "although Parliament is said to be dissolved, a dissolution extends, in fact, no farther than to the Commons, and that the Peers are not affected by it; no change can take place in the constitution of their body, except as to a small number of Scotch representative peers," proceeds to argue that, "so far as the House of Peers is concerned, a creation of peers by the crown on extraordinary occasions is the only equivalent which the constitution has provided for the change and renovation of the House of Commons by a dissolution. In no other way can the opinions of the House of Lords be brought into harmony with those of the people." But it may be feared that this comparison is rather ingenious than solid. Indeed, the writer himself limits such an expedient as a creation of peers to insure the passing of a particular measure to "extraordinary occasions." But a dissolution of the House of Commons is so far from being so limited, that it is the natural and inevitable end of every House of Commons after an existence which cannot exceed seven years, and which is very rarely so protracted. And though it may be, and probably has been, the case that a House of Commons has passed measures to which it had no great inclination, lest it should provoke a minister to a premature dissolution, yet no submission on its part can long postpone it; and a threat or apprehension of a dissolution would certainly fail to overcome the opposition of the House of Commons, or of a party within it, if the measure before them seemed open to serious objection. The presumed or presumable immortality of the one body, and the limited existence of the other, seem to constitute so essential a difference between them as must prevent the measures adopted toward one being fairly regarded as any guide to a justification of those employed in the case of the other. The Reform Bill of 1832 has sometimes been called a new Revolution, and to some extent it deserved the name; for it was not, like the Catholic Emancipation Act, a mere restoration of privileges to any class or classes of the people which had once been enjoyed by them, and had subsequently been withdrawn, but it was a grant of a wholly new privilege to places and to classes which had never enjoyed it; while it was manifest that the political power thus conferred on these classes involved a corresponding diminution of the powers of those who had hitherto monopolized it. It was also the introduction of a new principle. The old doctrine of the constitution had been, that the possession of freehold property, as the only permanent stake in the country, was the only qualification which could entitle a subject to a voice in the government and legislation of the kingdom. The new doctrine was that, as others besides owners of land contributed to the revenue by the payment of taxes, those who did so contribute to a sufficient amount had a right to a voice, however indirect or feeble, in the granting of those taxes; and so far it was the extension and application to subjects at home of the principle for which Lord Chatham and Burke had contended sixty years before in the case of the American Colonies, that taxation and a right to representation went together; a principle which, many ages before, had been laid down by the greatest of our early kings as the foundation of our parliamentary constitution and rights. But this principle, however generally it may have been asserted, had hitherto been but very partially carried out in practice, and the old borough system had been skilfully devised by successive kings and ministers to keep the political power in the hands of the crown and the aristocracy. It was with that object that most of the boroughs which were first allowed to return members under the Tudors had been enfranchised,[222] a great noble or landholder, whose affection to the government could not be doubted, being often able to obtain the promotion of some village or petty town in the neighborhood of his estates to the dignity of a parliamentary borough, and thus acquiring a great addition to his political and social importance by his power of influencing the election. No one could deny that the existence of such boroughs was an abuse, or at least an anomaly, rendered the more conspicuous as time went on by the denial of representatives to towns which contained as many thousands of citizens as they could boast single burgesses. At the same time it was equally undeniable that the aristocracy, generally speaking, exerted their influence advantageously for the state. A peer or great squire who could return the members for a borough took a worthy pride in the abilities and reputation of those whom he thus sent to Parliament; especially the leaders of the two parties sought out promising young men for their seats; and it has often been pointed out that, of the men who in the House of Commons had risen to eminence in the country before the Reform Bill, there was scarcely one who had not owed his introduction to Parliament to the patron of one of those boroughs which were now wholly or partially disfranchised; while on one or two occasions these "rotten boroughs," as, since Lord Chatham's time, they were often derisively called, had proved equally useful in providing seats for distinguished statesmen who, for some reason or other, had lost the confidence of their former constituents. So, when Bristol had disgraced itself by the rejection of Burke, Malton had averted the loss with which Parliament and the country were threatened by again, through the influence of Lord Rockingham, returning the great statesman as their representative. So, to take a later instance, Westbury, under the influence of Sir Manasseh Lopes, had provided a refuge for Sir Robert Peel, when the course which he had taken on Catholic Emancipation had cost him his seat for Oxford. And these practical uses of these small boroughs--anomalies in a representative system, as they were called in the debates on the subject, and as they must be confessed to have been--were so important, that some even of those who felt compelled by their principles to vote for their parliamentary extinction have, nevertheless, confessed a regret for the sacrifice, lamenting especially that it has, in a great degree, closed the doors of the House of Commons against a class whose admission to it is on every account most desirable, the promising young men of both parties. In one point of great importance the framers of the Reform Bill of 1832 proved to be mistaken. They justified the very comprehensive or sweeping range which they had given it by their wish to make it a final settlement of the question, and by the expression of their conviction that the completeness with which it had satisfied all reasonable expectations had effectually prevented any necessity for ever re-opening the question. Their anticipations on this head were not shared by their opponents, who, on the contrary, foretold that the very greatness of the changes now effected would only whet the appetite for a farther extension of them; nor by a growing party, now beginning to own the title of Radicals, which till very recently had only been regarded as a reproach, and who, even before the bill passed,[223] expressed their discontent that it did not go farther, but accepted it as an instalment of what was required, and as an instrument for securing "a more complete improvement." And their expectations have been verified by subsequent events. Indeed, it may easily be seen that the principles on which one portion of the bill--that which enfranchised new classes of voters--was framed were such as, in shrewd hands, might easily be adduced as arguments in favor of the necessity of reconsideration of the question from time to time. So long as the right of voting was confined to owners of property, or members of corporate bodies, the line thus laid down was one which was not liable to be crossed. But the moment that tenancy was added to ownership, and a line was drawn distinguishing electors from non-electors, not by the nature of their qualifications, but by the amount of their rent, detail was substituted for principle; and the proposer or maintainer of the rule that the qualification should be a yearly rental of £10 might be called on to explain why, if £10 were a more reasonable limit than £15, £8 were not fairer than £10. Or again, if the original argument were, that a line must of necessity be drawn somewhere, and that £10 was the lowest qualification which seemed to guarantee such an amount of educated intelligence in the voter as would enable him to exercise the franchise conferred on him judiciously and honestly, such reasoning would from time to time invite the contention that the spread of education had rendered £8 tenants now as enlightened as £10 tenants had been some years before. And thus the measure of 1832, instead of forever silencing the demand for Reform by the completeness of its concessions, did in fact lay the foundation for future agitation, which has been farther encouraged and fed by farther submission to it, and which its leaders, who have so far triumphed, show no purpose to discontinue. To discuss whether such extensions of the franchise as have already been adopted, and those farther steps in the same direction which are generally understood to be impending, will eventually be found compatible with the preservation of our ancient monarchical constitution, is a fitting task for the statesmen and senators whose duty it is to examine in all their bearings the probable effects of the measures which may be proposed. But the historian's business is rather "to compile the records of the past" than to speculate on the future.[224] And the course which was too perilous or difficult for Mr. Hallam to undertake we will follow his example in avoiding. But it cannot be denied that, if the Reform Bill of 1832 transferred the chief political power of the state from the aristocracy to the middle classes, a farther lowering of the qualification for the exercise of the franchise must transfer it from the middle to the lower classes; and that those who view such transfer with alarm, and deprecate it as fraught with peril to all our ancient institutions, maintain their opinions by arguments as old, indeed, as the days of the Roman republic,[225] but which have not lost strength by lapse of time, if indeed, they have not been fortified by events in the history of more than one modern nation. Even before the introduction of the first Reform Bill one measure had been passed of constitutional importance, though the concurrence of both parties in its principle and details prevented it from attracting much notice. Two daughters who had been born to the King and Queen had died in their infancy, and the royal pair were now childless; and, as some years had elapsed since the birth of the last, it was probable that they might remain so. The presumptive heiress to the throne was, therefore, the daughter of the deceased Duke of Kent, the Princess Victoria, our present most gracious sovereign, and, as she was as yet only eleven years of age, it was evidently necessary to provide for the contingency of the death of the King before she should attain her majority. A Regency Bill for that purpose had, therefore, been prepared by the Duke of Wellington's cabinet, and had been introduced by Lord Chancellor Lyndhurst in the House of Lords before the resignation of the ministry. It could not be so simple in its arrangements as such bills had sometimes been, since there was more than one contingency possible, for which it was requisite to provide. It was possible not only that William IV. might die within the next seven years, but also that at his death he might leave a child, or his widow in a state which warranted the expectation of one, the latter case being the more difficult to decide upon, since no previous Regency Bill furnished any precedent for the ministers' guidance. The first point, however, to be settled was, who was the most proper person to administer the affairs of the kingdom as Regent, in the event of the heiress to the crown being still a minor at the King's death. It was a question on which it was evidently most desirable that no difference of opinion should be expressed. And, in fact, no difference existed. The leaders of both parties--the Duke and his colleagues, who had framed the bill, and Lord Grey, with his colleagues, who adopted it--agreed that the mother of the young sovereign would be the fittest person to exercise the royal authority during the minority; and, farther, that she should neither be fettered by any limitations to that authority, nor by any councillors appointed by Parliament nominally to advise and assist, but practically to control her. It was felt that a Regent acting for a youthful daughter would need all the power which could be given her; while, as she could never herself succeed to the throne, she could be under no temptation, from views of personal ambition, to misuse the power intrusted to her. At first sight it seemed a more difficult and delicate question what course should be pursued with reference to the possible event of the King dying while the Queen, his widow, was expecting to become a mother. As has been said above, no precedent was to be found in any former bill; yet it seemed to be determined by the old constitutional maxim, that the King never dies. Not even for a moment could the throne be treated as vacant, and, therefore, it was proposed and determined that in such a case the Princess Victoria must instantly be proclaimed Queen, and the Duchess of Kent must instantly assume the authority of Regent; but that, on the birth of a posthumous child to the Queen Dowager, the Princess and the Duchess, as a matter of course, should resume their previous rank, and Queen Adelaide become Regent, and govern in the name of her new-born infant and sovereign. The strict constitutional correctness of the principle elaborately and eloquently expounded to the peers by Lord Lyndhurst was unanimously admitted, and the precedent now set was followed, with the needful modification, when, ten years afterward, it became necessary to provide for the possibility of Queen Victoria dying during the minority of her heir. The parent of the infant sovereign, Prince Albert, was appointed Regent, with the cordial approval of the nation; the dissent of the Queen's uncle, the Duke of Sussex who, with a very misplaced ambition, urged instead the appointment of a Council of Regency, of which he hoped to become the most influential member, only serving to make the unanimity of the rest of the Parliament more conspicuous. A somewhat kindred question, inasmuch as it affected the personal arrangements, if they may be so termed, of the sovereign, was settled in the same session, and on a new principle. What was called the Civil List had hitherto been placed on a footing which was at once unintelligible and misleading. The expression was first used at the Revolution, and was applied not only to that portion of the revenue which was devoted to the personal expenses of the sovereign, but also to many branches of the civil expenditure of the state, with which, in fact, he had no concern whatever. Not only the salaries of the great officers of the household, but those also of the ministers, ambassadors, and of the judges, were paid out of it, as well as those of many place-holders of various classes, and pensions to a large amount. Amounts embracing such a variety of miscellaneous and unconnected expenses could hardly be expected to be kept with regularity, and there was lavish waste in every department. Burke's bill had rectified some of the abuses, and had also pointed out the way to some other reforms which were gradually adopted; but still numbers of charges were left untouched, and there was scarcely any one subject which afforded more topics to unscrupulous demagogues than the amount of the Civil List, which the ignorant multitude were constantly assured that the King enjoyed to squander on his own pleasures, though, in fact, the greater part of it was expended in the service of the state, and was entirely free from his control. Only a portion of the sum which went under this name was voted annually by the Parliament. A portion was derived from the Crown Lands, from duties known as Droits of the Crown and Droits of the Admiralty, etc., the amount of which fluctuated, and with which Parliament was admitted to have no right to interfere. But the working of the whole was satisfactory to no one--neither to the King himself, nor to those who upheld the right of the Parliament to have a predominant control of every branch of expenditure of the public money. The feeling that the whole of the royal income and expenditure should be placed on a different footing was general, and the fall of the Duke of Wellington's ministry had been immediately caused by the success of a proposal that, before fixing the new sovereign's Civil List, Parliament should refer the matter to a committee, that inquiry might be made into every part of it. Lord Grey's ministry were bound to act in conformity with a resolution on which they had, as it were, ridden into office; and the arrangement which they ultimately effected was one in which common-sense and the royal convenience and comfort were alike consulted. That portion of the Civil List of his predecessor which was voted by Parliament amounted to nearly £850,000 a year; but, besides that sum, George IV. enjoyed the income already mentioned as derived from Crown Lands, Droits, etc., while a farther large sum was furnished by the ancient revenue of the crown of Scotland, and another was received from Ireland. The ministers now proposed that all these sources of income should be handed over to the Treasury, and that the Civil List should henceforward be fixed at £510,000, being at the same time relieved from all the foreign and extraneous charges on it which had invidiously swelled the gross amount, without being in any way under the control of the sovereign, or in any way ministering to his requirements, either for personal indulgence or for the maintenance of the state and magnificence imposed on him by his position. Such a change was on every ground most desirable. It was clearly in accordance with our parliamentary constitution that grants of money made by the Parliament should express distinctly and unmistakably the objects to which they were really to be applied; and that the charges of departments connected with the government, the administration of justice, or the foreign service of the country, should not be mixed up with others of a wholly different character, so as to make what was, in fact, the expenditure of the nation wear the appearance of being the expenditure of the sovereign. Moreover, the assignment of many of the charges to the Civil List even gave a false character to the appointments themselves. If a sovereign was to pay ambassadors and judges out of what seemed to be his private income, the logical conclusion could hardly be avoided that he had a right to lower those salaries, or even to diminish the number of those appointments. And it may even be said that the less any real danger of such a right being so exercised was to be apprehended, the more unadvisable was it to retain an arrangement which in theory could be described as liable to such an abuse. Notes: [Footnote 216: But it may be remarked that till very recently the people out-of-doors had ceased to show any great anxiety about Reform. Two or three years before, Lord Althorp, who, in Lord Grey's ministry, was Chancellor of the Exchequer and leader of the House of Commons, told Peel that the people had become so indifferent to it, that he never meant to bring forward the question again, and in the last seven years only fourteen petitions had been presented to Parliament in favor of it. In reality, such a feeling in the people would have been eminently favorable to a calm framing of a Moderate measure; but this indifference was soon changed into a more violent and widely diffused excitement than there was any record of since the days of the Popish Plot; that excitement, however, according to the confession of the historian of the Whig ministry and the Reform Bill, himself an ardent reformer, being "no spontaneous result of popular feeling, but being brought about by the incessant labors of a few shrewd and industrious partisans forming a secret, but very active and efficient, committee in London."--Roebuck's _History of the Whig Ministry_, etc., ii., 309.] [Footnote 217: In 1835 the two days were reduced to one.] [Footnote 218: The creation of twelve peers, in the reign of Queen Anne, to secure a majority in favor of the Peace of Utrecht.] [Footnote 219: "Constitutional History," iii., 331. See the whole passage.] [Footnote 220: Lord John Russell had publicly described the language of the Tory Peers in the debate on Lord Lyndhurst's amendment as "the whisper of a faction." And many articles of most extreme violence which appeared in the _Times_ about the same time were generally believed to have been written (in part at least) by the Lord Chancellor, Lord Brougham.] [Footnote 221: "Constitutional History of England," by Sir J.E. May, 1., 262.] [Footnote 222: Elizabeth enfranchised no fewer than sixty-two in the course of her reign, "a very large proportion of them petty boroughs, evidently under the influence of the crown or the peerage."--Hallam, _Constitutional History_ i., 360.] [Footnote 223: Sir A. Alison, "History of Europe," xxiii., 55, quotes a paragraph from the _Examiner_ newspaper, which says: "The ground, limited as it is, which it is proposed to clear and open to the popular influence, will suffice as the spot desired by Archimedes for the plant of the power which must ultimately govern the whole system. Without reform, convulsion is inevitable. Upon any reform farther reform is inevitably consequent, and the settlement of the constitution on the democratic basis certain."] [Footnote 224: Hallam, "Constitutional History," c. xvi., _in fin._] [Footnote 225: "Semper in republicâ timendum est ne plurimum valeant plurinn."--Cicero.] CHAPTER X. Abolition of Slavery.--Abridgment of the Apprenticeship.--The East India Company's Trade is Thrown Open.--Commencement of Ecclesiastical Reforms.--The New Poor-law.--State of Ireland.--Agitation against Tithes.--Coercion Bill.--Beginning of Church Reform.--Sir Robert Peel becomes Prime-minister.--Variety of Offices held Provisionally by the Duke of Wellington.--Sir Robert Peel Retires, and Lord Melbourne Resumes the Government.--Sir Robert Peel Proposes a Measure of Church Reform.--Municipal Reform.--Measures of Ecclesiastical Reform. Apart from the consideration of the abstract principle, on which the advocates of Parliamentary Reform had insisted, of the light of many classes hitherto unrepresented to representation, they had also dwelt on the practical advantage which might be expected to ensue from the greater degree in which public opinion would henceforth be brought to bear on the action of the Houses, and, by a natural consequence, on the administrative government also. And the bill had hardly passed when this result began to show itself, not only in transactions of domestic legislation, but in others which affected our most remote dependencies, both in the East and West. We have seen in a previous chapter how Wilberforce, after twenty years of labor and anxiety, reaped the reward of his virtuous exertions in the abolition of the slave-trade. But he had not ventured to grapple with the institution which gave birth to that trade, the employment of slaves in our West India Islands. Yet it was an evil indefensible on every ground that could possibly be alleged. It was not only a crime and an injustice, but it was an anomaly, and a glaring inconsistency, in any British settlement. The law, as we have seen, had been laid down as absolutely settled, that no man within the precincts of the United Kingdom could be a slave; that, even had such been his previous condition, the moment his foot touched English soil he became a free man. By what process of reasoning, then, could it be contended that his right to liberty according to English law depended on what portion of the British dominion he was in--that what was incompatible with his claims as a human being in Kent ceased to be so in Jamaica? The sentiment that what was just or unjust in one place was just or unjust in every place; that a man's right to freedom did not depend on the country of his birth or the color of his skin, had naturally and logically been widely diffused and fostered by the abolition of the slave-trade. It was but a small step from admitting that there could be no justification for making a man a slave, to asserting that there was an equal violation of all justice in keeping one in slavery; and this conclusion was strengthened by tales, which were continually reaching those most interested in the subject, of oppression and cruelty practised by the masters, or oftener by their agents and overseers, on the unfortunate beings over whom they claimed power and right as absolute as any owner could pretend to over any description of property. They made so general an impression that, ten years before the time at which we have now arrived, a society had been formed in London whose object was the immediate extinction of slavery in every British settlement; and Canning, then Secretary of State, had entered warmly into the general object of the society; not, indeed, thinking the instant abolition practicable, but inducing Parliament to pass a body of resolutions in favor of at once improving the condition of the slaves, as the best and necessary preparation for their entire enfranchisement;[226] and the next year, 1824, the subject was recommended to the attention of the Houses in the King's speech, and an Order in Council was issued enjoining the adoption of a series of measures conceived in the spirit of those resolutions, among which one was evidently meant as a precursor of the slaves' entire emancipation, since it gave the "negro who had acquired sufficient property" a title "to purchase his own freedom and that of his wife and family." And it was, probably, from regarding it in this light that the planters (as the owners of estates in the West Indies were generally called) selected that provision as the object of their most vehement remonstrances. But, though they were not so open in their remonstrances against the other clauses of the order, they did worse, they disregarded them; and the stories of the ill-treatment of the slaves were neither less frequent nor less revolting than before. Fresh Orders in Council, avowedly designed as the stepping-stones to eventual emancipation, were issued; and one which reached the West Indies at the end of 1831 was, unhappily, so misconstrued by the slaves in Jamaica, who regarded it as recognizing their right to instant liberation, that, when their masters refused to treat it as doing so, they broke out into a formidable insurrection, which was not quelled without great loss of life and destruction of property. The planters were panic-stricken; many of them, indeed, were almost ruined. The colonial Legislatures,[227] which had been established in the greater part of the islands, addressed the ministers with strong protests against the last Order in Council; and the mischief which had confessedly been already done, and the farther mischief which was not unreasonably dreaded, were so great that the cabinet consented to suspend it for a while; and the House of Commons made a practical confession that the planters were entitled to sympathy as well as the slaves, by voting nearly a million of money to compensate those of Jamaica for their recent losses. But out-of-doors the feeling rather was that the insurrection had been caused, not by the unreasoning though natural impatience for freedom entertained by the negro--whom Canning had truly described as "possessing the form and strength of a man, but the intellect of a child"--but by the slackness and supineness of the local Legislature, too much under the influence of the timid clamors of the planters to listen to the voice of justice and humanity, which demanded to the full as emphatically, if somewhat less vociferously, the immediate deliverance of the slave. The object, however, thus desired was not so free from difficulty as it seemed to those zealous but irresponsible advocates of universal freedom; for, in the first place the slaves were not the only persons to be considered; the planters also had an undoubted right to have their interests protected, since, however illegitimate property in human beings might be, it was certain that its existence in that portion of the King's dominions had been recognized by Parliament and courts of justice for many generations, and that suddenly to withdraw a sanction and abrogate a custom thus established, and, as it might fairly be believed, almost legalized by time, would be not only ruinous to the planters, who would have no other means of cultivating their lands, but, as being ruinous to them, would also manifestly be most unjust. Even in the interests of the slaves themselves, instant emancipation before they were fit for it might prove to them a very doubtful blessing. The state, too, and the general interests of the kingdom had to be considered, for the shipping employed in the West India trade, and the revenue derived by the Imperial Exchequer from it, were both of great amount. It was a very complicated question, and required very cautious handling; but it was plain that the people were greatly excited on the subject. One or two of the ministers themselves had deeply pledged themselves to their constituents to labor for the cessation of slavery; and eventually, though by no means blind to the difficulty of arriving at a thoroughly safe solution of the question, the ministry decided that "delay was more perilous than decision," and they brought in a bill, in which they endeavored to combine the three great objects--justice to the slave, by conferring on him that freedom to which he, in common with all mankind, had an inviolable right; justice to the slave-owner, by compensating him fairly for the loss of what (however originally vicious the practice may have been) he was entitled by long usage and more than one positive law to regard as property; and a farther justice to the slave, that justice which consists in being careful so to confer benefits as to do the greatest amount of good to the recipient. The first object was attained by enacting that those who had hitherto been slaves should be free; the third was arrived at by making the freedom thus given, not instantaneous, but by leading them to it, and preparing them for its proper and useful enjoyment, by a system of apprenticeship. The slave was to be apprenticed to his master for seven years, receiving, partly in money and partly in kind, a certain fair amount of wages, and having also one-fourth of his time absolutely at his own disposal. And the second was secured by granting the planters the magnificent sum of twenty millions of money, as compensation for the injury done to them; or, in other words, as purchase-money for the property they were compelled to surrender. The apprenticeship system did not wholly succeed. The slaves were not sufficiently enlightened to appreciate the character of the new arrangement; and, as the light in which it appeared to them was rather that of deferring than of securing their emancipation, it made them impatient rather than thankful. In the majority of cases it proved difficult to induce them to work even three-fourths of their time, and eventually the planters themselves were driven to the conclusion that it was best to abridge the period of apprenticeship. By the act of the colonial Legislatures themselves it was shortened by two years, and the emancipation was completed on the 1st of August, 1838. Still, though on this single point the success of the scheme did not fully correspond to the hopes of those who had framed it, it was one which did great honor to their ingenuity as well as to their philanthropy (Lord Stanley, as Colonial Secretary, being the minister to whose department it belonged). And the nation itself is fairly entitled to no small credit for its cordial, ungrudging approval of a measure of such unprecedented liberality. Indeed, the credit deserved was frankly allowed it by foreign countries. To quote the language of an eloquent historian of the period, "the generous acquiescence of the people under this prodigious increase of their burdens has caused the moralists of other nations to declare that the British Act of Emancipation stands alone for moral grandeur in the history of the world."[228] And, in respect of the personal liberty of the subject, it may be said to have completed the British constitution; establishing the glorious principle, that freedom is not limited to one part of our sovereign's dominions, to these islands alone, but that in no part of the world in which the British flag is erected can any sort of slavery exist for a single moment. The abolition of the political authority of the East India Company, which took place some years after the time at which we have arrived, and which will be mentioned in a subsequent chapter, would make it unnecessary to mention the renewal of its charter, which took place at this time, were it not that the force of public opinion again made itself felt in some important limitations of its previous rights. The monopoly of the trade with China which the Company had hitherto enjoyed was resented as an injustice by the great body of our merchants and ship-owners, who contended that all British subjects had an equal right to share in advantages which had been won by British arms. The government and Parliament adopted their view, and the renewed charter extinguished not only that monopoly, but even the Company's exclusive trading privileges in India itself, though these, like the rights of the West India planters over their slaves, were purchased of it by an annuity for forty years, which was estimated as an equivalent for the loss of profit which must result to the proprietors of the Company's stock from the sudden alteration. It cannot be said that any constitutional principle was involved in what was merely a commercial regulation, or relaxation of such regulations. Yet it may not be thought inopportune to mention the transaction thus briefly, as one important step toward the establishment of free-trade, which, at the end of fifty years from the time when Pitt first laid the foundation of it, was gradually forcing itself on all our statesmen, as the only sound principle of commercial intercourse between nations. The laborious historian of Europe during these years finds fault with the arrangements now made, but only on the ground that they did not go far enough in that direction; that, while "everything was done to promote the commercial and manufacturing interests of England, nothing was done for those of Hindostan;"[229] that, "while English cotton goods were admitted for a nominal duty into India, there was no corresponding advantage thought of to the industry of India in supplying the markets of the country." The objection was not unfounded; but the system of which it complains was too one-sided to be long maintained, and in less than ten years a great financial reform had swept away the great mass of import duties, and so far had placed the Indian manufacturer on the same level with his fellow-subjects of English blood. The disturbances which agitated the first years of the reign of William IV. were not caused solely by the excitement attendant on the passing of the Reform Bill. There had been extensive agricultural distress in England, which had shown itself in an outbreak of new crimes, the burning of ricks in the farm-yards, and the destruction of machinery, to which the peasantry were persuaded by designing demagogues to attribute the scarcity of employment. But statesmen of both parties were agreed in believing that a great deal of the poverty which, especially in the agricultural counties, had become the normal condition of the laborer, might be ascribed to the pernicious working of the Poor-law, which subsisted with scarcely any alteration as it had been originally enacted in the reign of Elizabeth. There was even reason to doubt whether the slight changes which had been made had been improvements. If they had been in the direction of increased liberality to the poor man who needed parish relief, and had to some extent lessened his discomforts, they had at the same time tended greatly to demoralize both him and his employer, by introducing a system of out-door relief, which, coupled with the practice of regarding such relief as a legitimate addition to wages, led the former to feel no shame at underpaying his workmen, and the workman to feel no shame at depending on the parish for a portion of his means of subsistence. It was not to be wondered at that under such a system the poor-rates gradually rose to the prodigious amount of seven millions and a quarter of money; or that the rate-payers began to clamor against such a state of things, as imposing on them a burden beyond their power to bear. It was evident that it was an evil which imperatively demanded a remedy; and accordingly one of the first objects to which Lord Grey's Cabinet turned its attention after the completion of the Reform Bill was the amendment of the Poor-law. The scheme which in the spring of 1834 they introduced to Parliament was the first instance of the adoption in this country of that system of centralization which has long been a favorite with some of the Continental statesmen, but which is not equally in harmony with the instincts of our people, generally more attached to local government. But, if ever centralization could commend itself to the English mind, it might well be when a new law and a new principle of action were to be introduced, in the carrying out of which uniformity of practice over the whole kingdom was especially desirable. Accordingly, the government bill proposed the establishment of a Board of Commissioners to whom the general administration of the Poor-laws over the whole kingdom was to be intrusted. They were to have power to make rules and regulations as to the mode or modes of relief to be given, subject to the approval of the Secretary of State, that thus the establishment of one uniform system over the whole country might be secured. Power was to be given to unite several parishes into one union, and to erect large workhouses for the several parishes thus massed together;[230] and every union was to be under the management of boards of guardians, elected by the rate-payers of the different parishes, with the addition of the resident magistrates as ex officio guardians. Lord Althorp, who introduced the bill, admitted that such extensive powers as he proposed to confer on the Board of Commissioners were "an anomaly in the constitution," but pleaded the necessity of the case as their justification, since it was indispensable to vest a discretionary power somewhere, and the government was too fully occupied with the business of the nation, while the local magistrates would be destitute of the sources of information requisite to form a proper opinion on the subject. The commissioners alone, being exclusively devoted to the subject, and being alone in possession of all the information that could be collected, were really the only body who could fairly be trusted to form correct opinions on it.[231] The fact of the creation of such a board being "an anomaly," or, as it might rather have been called, a novelty in the constitution, does not seem an insuperable objection, unless it were also inconsistent or at variance with the fundamental principles of the constitution, and that can hardly be alleged in this instance. It is true that local management, whether its range were wide or narrow, whether covering the business of a county or limited to a single parish, had been the general rule; but, like every other arrangement for the conduct of affairs of any kind, that local management was inherently subject to the supreme authority and interference of Parliament. Nor, as the maintenance of this Parliamentary authority, as the supreme referee in the last resource, was provided for by the subordination of the commissioners for the approval of their regulations to the Secretary of State, does it seem that the arrangement now proposed and adopted can be said to have been inconsistent with constitutional principle. And the necessity for some change of that nature was clearly made out by the abuses which, undeniably, had been suffered to grow up under the old system. If the habitual condition of the Irish peasant were to be taken into account, it would be correct to say that there was less distress at this time in England than in Ireland; but there was still greater discontent, and infinitely more of dangerous disturbance. Catholic Emancipation had stimulated the agitators, not pacified them; they regarded it as a triumph over the English government; and, being so, as at once a reason for demanding, and a means of extorting, farther concessions. But this notion of theirs, when inculcated on the peasantry, bore terrible fruit, in such an increase of crime as had probably never been known in any country in the world. In the provinces of Leinster, Munster, and Connaught murders, deeds of arson, and rapine were of far more than daily occurrence.[232] Lord Althorp asserted in the House of Commons that more lives had been sacrificed in Ireland by murder in the preceding year than in one of Wellington's victories. And what was, if possible, a still worse symptom of the disposition of the common people, was exhibited in the impossibility of bringing the criminals, even when well known, to justice. Jurors held back from the assizes, witnesses who had seen murders committed refused to give evidence. The Roman Catholic prelates, and the higher class of the Roman Catholic clergy--most of whom, greatly to their credit, exerted themselves to check this fearful progress of wickedness--found their denunciations unheeded; while O'Connell, in his place in the House of Commons, used language which to an ignorant and ferocious peasantry looked almost like a justification of it, affirming it to be caused wholly by the "unjust and ruinous policy of the government" in refusing to abolish tithes. It was not the first time that the existence of tithe had been alleged as an Irish grievance. In the three southern provinces by far the greater portion of the tenantry were Roman Catholics, and they had long been complaining that they were forced to pay for the support of the Protestant clergyman of their parish, whose ministrations they could not attend, as well as for the maintenance of their own priest, whose livelihood depended on their contributions. According to strict political economy, there could be no doubt that the burden of the tithe fell, not on the tenant, but on the landlord, in the calculation of whose rent the amount of tithe to which each holding was liable was always taken into consideration; and that being the true doctrine, it was equally plain that in reality the Protestant clergy were paid, not by Roman Catholics, but by Protestants, since it was not disputed that by far the greater part of the land-owners in every province were Protestants.[233] But an ignorant peasant is no student of political economy or of logic; and the fact that the payment of the tithe passed through his hands was in his eyes, an incontrovertible proof that it came out of his pocket. The discontent had gradually begotten an organized resistance to the payment, and the mischief of allowing the continuance of such a state of feeling and conduct, which was manifestly likely to impair the respect for all law, made such an impression on the government that, in the royal speech with which he opened the session of 1832, the King recommended the whole subject to the consideration of Parliament, urging the Houses to inquire "whether it might not be possible to effect improvements in the laws respecting this subject." In compliance with this recommendation, committees were appointed by both Houses; and the result of their investigations was a recommendation that a new arrangement should be made, under which the tithe should be commuted to a rent-charge. Accordingly, the next year the ministers proceeded to give effect to this recommendation. But they reasonably judged that an alteration of a particular law in compliance with the clamor raised against it would be a concession pregnant with mischief to the principle of all government, if it were not accompanied, or rather preceded, by a vindication of the majesty of all law; and therefore the first measure affecting Ireland, which they brought in in 1833, was a "Coercion Bill," which empowered the Lord-lieutenant not only to suppress the meetings of any assembly or association which he might consider dangerous to the public peace, but also to declare by proclamation any district in which tumults and outrages were rife to be "in a disturbed state;" and in districts thus proclaimed no person was to be permitted to be absent from his house from an hour after sunset to sunrise. Houses might be searched for arms, martial law was to be established, and courts-martial held for the trial of all offences except felonies; and the _Habeas Corpus_ Act was suspended for three months. O'Connell and his party protested with great vehemence against such an enactment, as a violation of every right secured to the subject by the constitution. And a bill which suspended the ordinary courts of justice must be admitted to have been incompatible with the constitution as commonly understood and enjoyed. But if the measure thus proposed was extraordinary, the state of affairs which had led to its proposal was so also in a far greater degree. The records of no nation had ever presented such a fearful catalogue of crimes as was now laid before the Parliament, and at such a crisis the statesmen to whom the tranquillity of the country and the safety of the citizens were intrusted were undoubtedly called upon to go back from the letter of the constitution to that which is the primary object of every constitution--the safety of those who live under it. _Salus populi suprema lex_. And the argument of necessity was regarded, and rightly regarded, by both Houses of Parliament as a sufficient and complete justification of even so exceptional an enactment. And concurrently with this enactment, which, however indispensable for the repression of crime, no one could deny to be severe, the ministers endeavored also to remove the causes of discontent by a large measure of Church reform, not confining their aim to settling the tithe question, but dealing with the whole question of the Irish Church in such a way as to lay down, as an undoubted principle of the constitution, the doctrine that the Church existed for the benefit of the nation; that its property was bestowed on it for the same object; and that, consequently, the nation, or in other words the Parliament, had a perfect right to deal with its property and endowments of all kinds, always keeping the same end in view, the general advantage of the whole nation. Proceeding on these maxims, they introduced a Church Reform Bill, in which, perhaps, the most remarkable circumstance of all was, that the evil which had been the original cause of their taking up the subject at all was the last thing settled, not, indeed, being finally arranged for four years; while the principal detail in the way of reform which was completed in this first session was one which, however reasonable, had hitherto received but little attention, and had certainly provoked no great outcry. It could not be denied that the Episcopal Establishment in Ireland was out of all proportion to the extent of the country and the number of the Protestant population, or of the parishes. The entire population in communion with the Church fell short of 900,000. The number of parishes scarcely exceeded 1400. But over this comparatively scanty flock were set no fewer than eighteen bishops and four archbishops; while England, with 12,000 parishes, was contented with twenty-four bishops and two archbishops. It was proposed to consolidate these bishoprics into ten, the archbishoprics into two, a reduction which could hardly fail to commend itself to all. But with this reduction was combined a variety of other details relating to the Episcopal revenues, to the right of the bishops to grant leases, and other matters of finance, which the ministers proposed so to remodel as to create a very large fund to be at the disposal of the state. On this point the greater part of the ministerial scheme was wrecked for the time. They succeeded in carrying that part of it which consolidated the bishoprics, and in inducing the House of Commons to grant, first as a loan, which was originally turned into a gift, a million of money to be divided among the incumbents of the different parishes, who were reduced to the greatest distress by the inability to procure payment of their tithes, the arrears of which amounted to a far larger sum. But the assertion that any surplus fund arising from redistribution of the Episcopal revenues ought to belong to the state, not only called forth a vigorous resistance from the whole of the Tory party at its first promulgation, but, when the subject was revived the next year, and one of the supporters of the ministry, Mr. Ward, proposed a resolution that any such surplus might be legitimately applied to secular purposes, it produced a schism in the ministry itself. The resolution was cordially accepted by Lord John Russell, but was so offensive to four of his colleagues, Mr. Stanley and Sir James Graham being among the number, that they at once resigned their offices. The breach thus made was not easily healed; and before the end of the session other dissensions of a more vexatious and mortifying character led to the retirement of the Prime-minister himself. All attempts to deal with the tithe question failed for the time, four more years elapsing before it was finally settled. But, curtailed as it was, the bill of 1833 still deserves to be remembered as a landmark in constitutional legislation, since it afforded the first instance of Parliament affirming a right to deal with ecclesiastical dignities and endowments, thus setting a precedent which, in the next reign, was followed with regard to the Church of England. Lord Melbourne succeeded Lord Grey at the Treasury; but every one saw that the ministry was greatly weakened. The King, too, had become greatly dissatisfied both with their general policy, especially in regard to the Irish Church--which he took an opportunity of assuring the Irish bishops he was unalterably resolved to uphold--and also with the language and conduct of one or two individual ministers, to which it is not necessary to refer more particularly; and when, on the death of Lord Spencer, father of Lord Althorp, the Chancellor of the Exchequer, which took place in November, 1834, it became necessary for Lord Melbourne to propose to him a re-arrangement of some of the cabinet offices, he at once dismissed the whole body of the ministers. It was a somewhat singular step to take, for they had not been defeated in Parliament, and he did not himself allege any special dissatisfaction with anything which they had yet done, though he did apprehend that some of them would press upon him measures disadvantageous to "the clergy of the Church of England in Ireland," to which he had an insuperable objection; and, moreover, that the subject would cause fresh divisions in the ministry, and the resignation of one or two more of its most important members. He had, indeed, six months before, given a practical proof of his distrust of the ability of Lord Melbourne and the colleagues who remained to him to carry on the government of the kingdom satisfactorily, by desiring the new Prime-minister to enter into communication with the leaders of the Opposition, "to endeavor at this crisis to prevail upon them to afford their aid and co-operation toward the formation of an administration upon an enlarged basis, combining the services of the most able and efficient members of each" party.[234] Nor had he relinquished the idea of bringing about such a coalition, till he learned that both Lord Melbourne and Sir Robert Peel considered the differences which divided them to be too deeply founded on principle to render their union in one administration either beneficial to the state or creditable to themselves. And it may be said that the letter in which Lord Melbourne had in November announced to his Majesty the death of Lord Spencer, and the necessity for new arrangements which that event had created, by the expression that "in these new and altered circumstances it was for his Majesty to consider whether it were his pleasure to authorize Viscount Melbourne to attempt to make such fresh arrangements as might enable his present servants to continue to conduct the affairs of the country, or whether his Majesty deemed it advisable to adopt any other course," and that "Lord Melbourne earnestly entreated that no personal consideration for him might prevent his Majesty from taking any measures or seeking any other advice which he might think more likely to conduce to his service and to the advantage of the country," did not only contemplate, but to a certain degree even suggested, the possibility of his Majesty's preferring to have recourse to fresh advisers. The King's subsequent acts and their result, however, certainly took the kingdom by surprise. He applied to the Duke of Wellington to undertake the formation of a new ministry; and the Duke, explaining to the King that "the difficulty of the task consisted in the state of the House of Commons, earnestly recommended him to choose a minister in the House of Commons," and named Sir Robert Peel as the fittest object for his Majesty's choice. Sir Robert was in Italy at the time; but, on receiving the royal summons, he at once hastened to England, the Duke of Wellington in the mean time accepting the offices of First Lord of the Treasury and Secretary of State, as a provisional arrangement, till he should arrive in London. Sir Robert reached England early in December; and though, if "he had been consulted beforehand, he would have been inclined to dissuade the dismissal of the last ministry as premature and impolitic," he did not consider it compatible "with his sense of duty" to decline the charge which the King laid upon him, and at once accepted the office of Prime-minister, being fully aware that by so doing he "became technically, if not morally, responsible for the dissolution of the preceding government, though he had not had the remotest concern in it."[235] In the formation of his ministry he so far endeavored to carry out the views which the King had suggested to Lord Melbourne in the summer as to invite the co-operation of Mr. Stanley (who, by the death of his grandfather, had recently become Lord Stanley) and Sir J. Graham, who, as has been mentioned before, had retired from Lord Grey's cabinet. A new name, that of "Conservative," had recently been invented for the more moderate section of the old Tory party; and it was one which, though Lord Grey had taunted them with it, as betraying a sense of shame at adhering to their old colors, Peel was inclined to adopt for himself, as characteristic of his feelings and future objects; and perhaps he thought it might help to smooth the way for a junction with him of those who would flinch from proclaiming so decided a change in their opinions as would be implied by their becoming colleagues of one who still cherished the name of Tory. But they declined his offers; and consequently he was forced to select his cabinet entirely from the party of anti-Reformers. He dissolved Parliament, a step as to which it seemed to him that the universal expectations of, and even preparation for, a dissolution, left him practically scarcely any option;[236] but he soon found, as, indeed, he had feared he should find, the attempt to establish a Conservative government premature. The party of the late ministry, following the example set by Mr. Fox in 1784 with better fortune, divided against him in the House of Commons on every occasion, defeating him in every division; and at the beginning of April he retired, and Lord Melbourne and his former colleagues resumed their offices with very little change. They had, as was natural, not been contented with opposing the Conservative ministry in its general policy, but in both Houses they had attacked it with great energy. They had begun the battle in both Houses in the debate on the address, in which they selected three points in the recent transactions for special condemnation, affirming that in every one of them the royal prerogative had been unconstitutionally exercised--the dismissal of the late ministry, the dissolution of Parliament, and the appointment of the Duke of Wellington to a variety of offices. In the House of Commons the attack was led by Lord Morpeth and Lord John Russell; in the House of Lords by Lord Melbourne himself. It was urged that, though the prerogative of the sovereign to dismiss his ministers was undoubted and inalienable, yet the Houses had a clear right to sit in judgment on any particular exercise of it; and that the circumstances of the late ministry having been but recently formed, of its possessing in a conspicuous degree the confidence of the great majority of the House of Commons, and of its being occupied at the moment of its dismissal with matters of high national concern, justified the House in calling on the new ministers to show valid reasons for its sudden dismissal. As to the dissolution, it was asked what misdemeanor the late House of Commons had committed? No difference had occurred between it and the other House of Parliament. It had passed no hostile vote against any administration. It had been in existence but a very short time. All these circumstances, they affirmed, made it reasonable for the Houses to express to his Majesty their disapprobation of the dissolution. Lord Morpeth argued, moreover, that the right of the House of Commons to inquire into such an exercise of the royal prerogative was proved by the example of Mr. Pitt, who, in 1784, had introduced into the speech from the throne a paragraph inviting Parliament to approve of the recent dissolution; and what Parliament could be asked to approve of, it manifestly had an equal right to censure. But the most vehement of the censures of the Opposition were directed against what Lord Morpeth called "the most unseemly huddling of offices in the single person of the Duke of Wellington; an unconstitutional concentration of responsibility and power, at which there was hardly an old Whig of the Rockingham school whose hair did not stand on end." He admitted that in the present instance the arrangement had only been provisional and temporary, and that "no harm had been done;" but, he asked, "what harm might not have been done? If the country had been suddenly obliged to go to war, who would have been responsible for the Foreign Department? If an insurrection of the negroes had occurred, who was responsible for the Colonial Office? If in Ireland any tithe dispute had arisen, who was responsible as Home-secretary?" And Lord Melbourne, though a speaker generally remarkable for moderation, on this subject went much farther; and, after urging that, "if one person held the situation of First Lord of the Treasury, and also that of Secretary of State for the Home Department, it would not only place in his hands without any control the appointment to every great office in the state, but a person so situated would also have the pecuniary resources of the state at his disposal without check or investigation," he proceeded to assert that "an intention to exercise those offices would amount to a treasonable misdemeanor." He did not, indeed, go so far as his late Attorney-general, Sir J. Campbell, who, in vexation at his loss of office, had even threatened the Duke with impeachment; but, though he admitted that the Duke had been free from the guilty intention of exercising the authority of these offices, he suggested that "the Lords ought to pass some resolution calculated to prevent so great a breach of the constitution from being drawn into a precedent." On the first point thus raised, for the dismissal of the late ministry without any such cause as is usually furnished by an adverse vote of one of the Houses of Parliament, Peel frankly admitted that his acceptance of office rendered him constitutionally responsible, though, as he also said, it was notorious that in fact he had, and could have had, no previous knowledge of it; but he denied that any constitutional question whatever was involved in it, since the King's right was denied by no one; and he could, therefore, only consent to discuss it as a question of policy and expediency. And, looking at it in this light, he regarded his defence as easy and complete. He contended that the events of the past year, the resignation of several of the subordinate ministers, and finally of Lord Grey himself, and the proposal which had been made to him (Peel) and several of his friends to coalesce with Lord Melbourne, rendered the act by which the late government had been removed perfectly justifiable on the part both of the King and of himself; that the King was justified in thinking a wholly fresh arrangement preferable to a re-arrangement of Lord Melbourne's cabinet; and he himself in obeying his sovereign's commands to form a new administration. The wisdom and propriety of the dissolution, too, could only be examined as a question of expediency; but in this instance every consideration not only recommended but compelled it. "When he undertook the arduous duties now imposed upon him, he did determine that he would leave no constitutional effort untried to enable him satisfactorily to discharge the trust imposed in him. He did fear that if he had met the late Parliament he should have been obstructed in his course, and obstructed in a manner and at a season which might have precluded an appeal to the people. It was the constant boast of the late government that the late Parliament had unbounded confidence in them. And, if that Parliament was, as had been constantly asserted, relied upon as ready to condemn him without a hearing, could any one be surprised at his appeal to the judgment of another, a higher and a fairer tribunal, the public sense of the people?" Precedent, too, was in his favor on this point, since, "whenever an extensive change of government had occurred, a dissolution of Parliament had followed;" and he referred to the year 1784, and to 1806, when the administration of which Lord Grey was the leading member at once dissolved the existing Parliament on coming into office; though he believed "the present to be the first occasion on which a House of Commons had been invited to express its dissatisfaction at the exercise of the prerogative of dissolution." To the strictures of Lord Melbourne and Lord Morpeth on the Duke of Wellington's temporary assumption of a combination of offices, it was replied by Sir Robert and the Duke that, though there might be inconvenience from the assumption of all those powers by one individual, it was so far from being unconstitutional, that it was a common practice for the Secretary for one department to act for another during intervals of recreation, or periods of ill-health; that there was ample precedent for such a proceeding. In the last week of the life of Queen Anne, the Duke of Shrewsbury had united three of the greatest posts of the kingdom, those of Lord Treasurer, Lord Chamberlain, and Lord-lieutenant of Ireland, with the sanction of that great constitutional lawyer, Lord Somers. And in 1827 Mr. Canning had retained the seals of the Foreign Office for some weeks after his appointment as First Lord of the Treasury. Moreover, there was actually a law which provided that when the office of Chancellor of the Exchequer is vacant the seals of that office shall be delivered to the Chief-justice; and under this rule, in the latter part of the reign of George II., Chief-justice Lord Mansfield had continued finance-minister for above three months. And, as to the practical result of what had been done in the present instance, the Duke affirmed, what, indeed, was universally admitted, that the arrangement had from the first been understood to be merely temporary; that no inconvenience had resulted from it; indeed, that "not a single act had been done in any one of the offices which had not been essentially necessary for the service of the country." The first two points on which the ministry was assailed it seems superfluous to examine, since it is clear that the position taken up by Sir Robert Peel is impregnable: that, on every view of the principles and practice of the constitution, there was no doubt of the right of the sovereign to dismiss his ministers or to dissolve the Parliament at his pleasure; and that those acts can only be judged of by a consideration of their expediency. Inexpedient, indeed, the dismissal of the preceding ministry is generally considered to have been, even in the interest of the Conservatives themselves. But inexpedient the dissolution can hardly be pronounced to have been, since, though the new election failed to give them a majority in the House of Commons, it beyond all doubt greatly strengthened their minority. On the other hand, though it cannot be denied that the House of Commons has a perfect right to express its disapproval of any or every act of the minister, it is not so clear that Lord Morpeth's invitation to it to express its dissatisfaction with this particular act of dissolution was, on general principles, expedient or safe; since such a vote is making a perilous approach to claiming for the House the right of being asked for its consent to its own dissolution, a claim the admission of which had been one of the most fatal, if not the most fatal, of all the concessions of Charles I. As to the Duke of Wellington's assumption of a variety of offices, it is probable that when he first proposed to the King to confer them on him, he anticipated no objection whatever from any quarter, since he had so little idea of there being any impropriety in holding two offices, were they ever so apparently incongruous, if his Majesty should have directed him to do so, that seven years before, when he became Prime-minister, he had at first designed permanently to retain the command of the army in conjunction with the Treasury, and had only been induced to abandon the intention by the urgent remonstrance of Sir Robert Peel; and, constitutionally, there does not seem to be any limitation of the sovereign's power to confer offices, to unite or to divide them. Indeed, the different Secretary-ships of State seem to owe their existence entirely to his will, and not to any act of Parliament. He can diminish the number, if he should think fit, as he did in 1782, when, on the termination of the American war, he forbore to appoint a successor to Lord George Germaine, in Lord Rockingham's administration; or he can increase the numbers, as he did in 1794, when he revived the third Secretaryship, which he had suppressed twelve years before, without any act of Parliament being passed to direct either the suspension or the revival. He can even leave the most important offices vacant, and intrust the performance of their duties to a commission, as was done in this very year 1835, when the Great Seal was put in commission, and the duties, for above two years, were performed by commissioners, who had other duties also to discharge; and these instances may, perhaps, warrant the conclusion that the distribution of the different posts in what is generally known as the cabinet is dictated by considerations of what is practicable and expedient rather than by any positive and invariable rule or principle. Yet it does not follow that, because the constitution was not violated or endangered by such an arrangement, the leaders of the Opposition did other than their duty in calling attention to it. Unquestionably, it is historically true that the liberties of the people owe their preservation, growth, and vigor to the jealous watchfulness to check the first and slightest appearance of any attempt to encroach upon them, which has been constantly exercised from the very earliest times by an almost unbroken series of fearless and independent patriots. And in this instance the very novelty of such an arrangement as had taken place did of itself make criticism a duty; though it may also be thought that the critics acted wisely in contenting themselves with calling notice to it, and abstaining from asking Parliament to pronounce a formal judgment on it, since any express censure would have been unwarranted either by the facts of the case or by any inference to be drawn from previous usage, while an approval of it would wear the appearance not only of sanctioning, but even of inviting a repetition of an arrangement which, if ever attempted to be carried out in actual practice, must tend to grave inconvenience, if not to discredit. Lord Melbourne resumed office, and, being strengthened by the manifest inability of the opposite party to command the confidence of the House of Commons, began to apply himself with vigor to the carrying out of several measures of internal reform, some of which involved not only the property but the long-established rights of very considerable bodies, and, as so doing, have an importance in a constitutional point of view, besides that arising from their immediate effects. Peel had been equally alive to the desirableness, so cogent as almost to amount to a moral necessity, of introducing reforms into more than one old institution, such as should bring them more into harmony with the spirit of the age, remodelling or terminating some arrangements which were manifest abuses, and others which, though, if dispassionately examined and properly understood, they, perhaps, were not really grievances, yet in their operation caused such discontent and heart-burnings that they were as mischievous as many others far more indefensible in theory. And, short-lived as his administration had been, he had found time to frame and introduce an extensive measure of Church reform, not only dealing with the question of tithes, the levy and collection of which in some of their details had long been made subjects of bitter complaints by the farmers, but including also provision for the creation of two new bishoprics, those of Ripon and Manchester. No part of his measure was more imperatively called for by the present circumstances of the nation, or of greater importance in its future operation. There had been no increase in the number of bishops since the reign of Elizabeth; but since her time not only had the population of the entire kingdom been quadrupled, but some districts which had then been very scantily peopled had become exceedingly populous. These districts had hitherto been almost destitute of Episcopal supervision, which now was thus to be supplied to them. But the new legislation did more. It might be expected that the growth of the population would continue, and would in time require a farther and corresponding increase of the Episcopate; and the erection of these new dioceses was, therefore, not only the supplying of a present want, but the foundation of a system for increasing the efficiency of the Church which should be capable of gradual progressive expansion, as the growth of the population in various districts might be found to require additional facilities for supervision. And the judgment with which the new arrangement met the requirements of the community may be regarded as proved by the circumstance that now, after the lapse of nearly half a century, it is maintained in active operation, and is admitted by all parties not only to be of the greatest practical benefit, but also to have a moral effect scarcely less valuable in the degree in which it has stimulated the application of private munificence to the great work of Church extension. But before Lord Grey quitted office his government had also called the attention of Parliament to the necessity of a large municipal reform, which, indeed, it seemed to them that the Reform Bill had bound them, in all consistency, to introduce. In the speech with which the King had closed the session of 1833, he had informed the Houses that he had "directed commissions to be issued for investigating the state of the municipal corporations throughout the United Kingdom, the result of whose inquiries would enable them to mature some measure which might seem best fitted to place the internal government of corporate cities and towns upon a solid foundation in respect of their finances, their judicature, and their police." He reminded them that they had recently passed acts "for giving constitutions upon sound principles to the royal and parliamentary boroughs of Scotland," and warned them that "their attention would hereafter be called to the expediency of extending similar advantages to the unincorporated towns in England which had now acquired the right of returning members to Parliament." The commission of which his Majesty thus spoke had now presented its report, strongly condemnatory of the existing system in almost every point of view; of the constitution and mode of election of the existing corporations, and of their government of the towns over which they presided. It declared that "even where they existed in their least imperfect form, and were most rightfully administered, they were inadequate to the wants of the present state of society." But they charged them also with positive offences of no venial kind. "They had perverted their powers to political ends, sacrificing local interests to party purposes. They had diverted from their legitimate use revenues which ought to have been applied for the public advantage, wasting them in many instances for the benefit of individuals; sometimes even employing for purposes of corruption funds originally intended for charitable uses." And they asserted that this too common misconduct of these bodies had engendered "among a great majority of the inhabitants of the incorporated towns a general and just dissatisfaction with their municipal institutions, a distrust of the self-elected municipal councils, and of the municipal magistracy, tainting with suspicion the local administration of justice." And therefore they "felt it their duty to represent to his Majesty that the existing municipal corporations of England and Wales neither possessed nor deserved the confidence and respect of his Majesty's subjects; and that a thorough reform must be effected before they could become what they ought to be, useful and efficient instruments of local government." It would be superfluous here to repeat the story of the rise of the boroughs, whose gradual acquisition of charters, with privileges and powers of various degrees, has been sufficiently investigated by Hallam.[237] What the Parliament had now to deal with was the way in which the system worked in the nineteenth century; and here it must be confessed that the report of the commissioners, severe as it was, did in no degree exaggerate the prevailing evils. The corporations had gradually become self-elected oligarchies of the worst kind. It must be admitted that, in perverting their authority to political purposes, they might plead the excuse that they were but following the example set them by the ministers of William III., who introduced into their bill for restoring the corporations which James II. had suppressed clauses manifestly intended to preserve the ascendency of the Whig party, "by keeping the Church or Tory faction out of"[238] them. But no such palliation (if, indeed, that had any right to be called a palliation) could be alleged for their abuse of the trusts committed to them; abuse which, if committed by single individuals, would have been branded, and perhaps punished, as malversation and fraud of the deepest dye. A sufficient specimen of the kind and extent of their misdeeds in one branch of their duties was afforded by a single paragraph of Lord John Russell's speech, in which he affirmed that, in some of the reports of their management of charitable estates committed to their care, it was proved that "the property, instead of being employed for the general benefit of the town, had been consumed for the partial benefit of a few individuals, and not unfrequently in the feastings and entertainments in which the mayor and other corporators had been in the habit of indulging. In some not very large boroughs these expenses had amounted to £500 and £600 a year; and the enjoyment had been confined to freemen of only one party." And the perpetuity of this mismanagement was in most instances secured by the members of the corporation themselves electing their new colleagues on the occasion of any vacancy. To put an end to this discreditable state of affairs, the government had prepared a very sweeping scheme of reform, though that it was not too sweeping was proved by the approval with which not only its principle but most of its details were received by the greater part of the Opposition; the leading principle being, to quote the words of the minister in introducing the bill, "that there should be one uniform government instituted, applicable to all; one uniform franchise for the purpose of election; and a like description of officers in each, with the exception of some of the larger places, in which there would be a recorder, or some other such magistrate. The first thing to be amended was the mode of election to the corporation, which was now to be intrusted to all such rate-payers in each borough as had paid poor-rates for three years, and resided within seven miles of the place." Lord John Russell had considered, he said, "whether this franchise should be limited to those paying a certain amount of rates; to the ten-pound householders, for instance, to whom the parliamentary franchise was confined;" but he decided on proposing to extend it to _all_ rate-payers, because, according to the established principle, to the known and recognized principle of the constitution, it is right that those who contribute their money should have a voice in the election of the persons by whom the money is expended. The old modes of acquiring the freedom of a corporation, such as birth, apprenticeship, etc., were to be abolished, as also were all exclusive rights of trade, vested rights, however, being preserved. The next point to be decided was the composition of the corporation which these rate-payers were to elect, and the ministerial proposal was that each corporation should consist of a mayor, aldermen, and councillors, possessing a certain amount of property as a qualification, and varying in number according to the population of the borough; the larger towns being also divided into wards, with a certain number of common-councilmen and aldermen to be chosen in each ward. The mayor was to be a yearly officer; of the aldermen and councillors a certain number were to retire each year, being, however, capable of re-election. The mayor was to be elected by the councils, and was to be a magistrate during his year of office. And the body thus constituted was to have the entire government of the borough; of its police, its charities, and generally, and most especially, of the raising and expenditure of its funds,[239] which had been too often dealt with in a manner not only wasteful, but profligate. Cases had been brought forward in which "corporations had been incurring debts year by year, while the members were actually dividing among themselves the proceeds of the loans they raised." The revenue derived from charitable estates had been "no less scandalously mismanaged." And the bill provided for the appointment of finance committees, trustees, auditors, and a regular publication of all the accounts, as the only efficient remedy and preventive of such abuses. The whole police of the town and administration of justice was also to be completely under the control of the council; and for the appointment of magistrates the council was to have the power of recommending to the crown those whom they thought fit to receive the commission of the peace; and in the large towns it should have power also to provide a salary for stipendiary magistrates. Another clause provided that towns which could not as yet be included in the bill, since they had never been incorporated, might obtain charters of incorporation by petition to the Privy Council. Such were the general provisions of this great measure of reform; a bill similar in principle having already been enacted for Scotland, and another being shortly after passed, with such variations of detail as the differences in the circumstances of the country required, for Ireland. Some of the clauses, especially those which preserved the vested rights of freemen and their families, and which required a certain amount of property or rating qualifications in the town councillors, were not originally included in the bill, but were inserted as amendments in the House of Lords; and it may be remarked that the result of the discussion in that House afforded a proof of the sagacity of those peers who, though conscientiously opposed to the Reform Bill, preferred allowing it to pass by their own retirement from the final divisions to driving the minister to carry his point by a creation of peers, since the avoidance of such an addition to their numbers as had been threatened enabled them now to force the adoption of these amendments on a reluctant minister. And it seems difficult to deny that the first was required by justice, and that the second was most desirable in the interests of the measure itself. Without it the town councillors, from among whom the mayor was to be chosen, might have been selected from the poorest, the least educated, and least independent class of the rate-payers. In some boroughs, or in some wards of many boroughs, it may be regarded as certain that they would have been so chosen; and such an admixture of unfit persons would have tended to bring some degree of discredit on the whole council, while to the successful inauguration of a new system the establishment of a general feeling of respect for it and confidence in it was of primary importance. The danger, too, of so ill-judged a selection would have been greatest in the larger boroughs, those being, at the same time, the very places in which the occasional difficulty of maintaining order and tranquillity made it even more necessary than in smaller towns that the council should enjoy the esteem and confidence of their fellow-citizens. The principle that every man who contributed to the rates had a right to claim a voice in the election of those who were to expend them, which the minister laid down as the justification of the clause conferring the municipal franchise on all the rate-payers, was strongly contested by Sir Robert Peel, though neither he nor those of his party in the Upper House proposed any alteration of the bill in this respect; but he pointed out that, though Lord John affirmed it to be the known and recognized principle of the constitution, he had not acted on it in the Reform Bill; and it is certainly open to question whether the adoption of some limitation would not have been an improvement on the present measure. The doctrine established in this instance by Lord John gave a preponderance at every municipal election to mere numbers, since the poorest class is everywhere the most numerous, and its admission led almost inevitably to a reduction of the parliamentary franchise at some future day, though certainly at this time, and for many years afterward, Lord John was far from contemplating any alteration of the Reform Bill, but, on the contrary, took every opportunity of proclaiming his adherence to it as a final solution of the question. But though in this particular it is possible that the bill might have been improved, it must be allowed to have been a measure very creditable to its framers. Few reforms have been conceived in a more judicious and more moderate spirit; few have been so carefully limited to the removal of real and proved abuses, and the prevention of their recurrence, while avoiding any concessions to the insidious demands of revolutionists, or the ill-regulated fancies of metaphysical theorists. It was a reform strictly in accordance with some of the most important principles of the constitution, as they have been gradually developed by the practical experience of successive generations. It combined with felicitous skill representative with local government; it secured uniformity in working, and that peculiarly English principle of publicity, without which the best-devised system cannot long be preserved from degeneracy. The Church reforms in England and Ireland, which were carried out about the same time, cannot be said to have involved any constitutional principle, though one of them greatly extended the principle of religious toleration and indulgence to the Dissenters of various sects. No alteration had been made in the Marriage Act of 1754, which declared it indispensable to the validity of a marriage that it should be performed in a church and by a clergyman of the Established Church. And it was not strange that this should be felt as a grievance by those who were not in communion with that Church. But some of the Dissenting sects had an additional cause of discontent in the words of the marriage service, which gave a religious character to the ceremony, while they regarded it as a civil contract. In his short administration Sir Robert Peel had recognized the validity of the arguments against the unmodified maintenance of the existing law, and had framed a measure calculated, in his view, to give the Dissenters the relief their title to which could not be denied. But his bill had been extinguished by his retirement. And Lord John Russell now availed himself of the machinery of another measure, which he introduced at the same time, to make the relief somewhat wider and more effective. Hitherto there was no record of births and marriages beyond that which was preserved in the registers of different parishes, which in former years had in many instances been carelessly and inaccurately kept. But at the beginning of 1836, the ministers, justly urging that it was important, in a national point of view, both with regard to the security of titles to property, and to that knowledge of the state of population the value of which was recognized by the establishment of the practice of taking a decennial census, that there should be a general register of all such occurrences, introduced a bill to establish a registry and registrar in every Poor-law union, with a farther registry for each county, and a chief or still more general one in London for the whole kingdom, subject to the authority of the Poor-law Commissioners. And by a second bill they farther proposed that the registries to be thus established should be offices at which those who desired to do so might contract purely civil marriages. Previous clauses in it provided that members of any sect of Protestant Dissenters might be married in their own chapels, and by ministers of their own persuasion. After enactments removing all the civil disabilities under which Nonconformists had labored for one hundred and fifty years had been placed on the statute-book, it was clearly inconsistent in the highest degree to retain still more offensive and unreasonable religious disabilities, and to deny to them the right of being married by their own ministers, according to the rites most agreeable to their consciences or prejudices. And though some of the details of the ministerial measure were objected to and slightly altered in its passage through Parliament, the general principle was admitted by the warmest friends and most recognized champions of the Established Church, who wisely felt that a bulwark which is too ill-placed or too unsubstantial to be defended, is often a treacherous source of weakness rather than strength, and that a temperate recognition of the validity of claims founded on justice was the best protection against others which had no such foundation, and that measures such as these adopted in a spirit of generous conciliation could only strengthen the Church by taking at least one weapon from the hands of its enemies. Another of the measures relating to the Church, of which Peel had prepared a sketch, had for its object the removal of a grievance of which the members of the Church itself had long been complaining, the mode of the collection of tithe. It would be superfluous here to endeavor to trace the origin of tithes, or the purposes beyond the sustentation of the clergymen to which they were originally applied.[240] They had undoubtedly been established in England some time before the Conquest, and the principle that the land should support the National Church was admitted by a large majority of the population; it may probably be said with something nearly approaching unanimity on the part of those who really paid it, namely, the land-owners. The objection to the tithe system was founded rather on the way in which it worked, operating, as Lord John Russell described it, as "a discouragement to industry; a penalty on agricultural skill; a heavy mulct on those who expended the most capital and displayed the greatest skill in the cultivation of the land." The present mode of levying the tithes forced the clergy to forbearance at the expense of what they deemed to be their rights, or led them to enforce them at the expense of the influence which they ought to possess with their parishioners, compelling them to lose either their income by their indulgence, or their proper weight and popularity in the parish by the exaction of what the law gave them for "the support of themselves and their families." And this dilemma was felt so keenly by the clergy themselves, that it had become a very general feeling with them that, "if any sort of commutation could be devised, they would be delighted to be delivered from this objectionable mode of payment." Indeed, Sir Robert Peel, whose measure of the preceding year had been chiefly directed to the encouragement of voluntary commutations, had stated to the House that there were already two thousand parishes in the kingdom in which a commutation between the clergyman and his parishioners had been agreed upon, and established as a durable settlement by separate acts of Parliament. Indeed, arrangements of this kind existed very generally; the parishes in which the tithe was taken in kind being comparatively few, and the plan usually adopted being for the occupier of land to pay the incumbent a fixed annual sum bearing a certain proportion to his rent. But arrangements which were optional were, of course, liable to be rescinded; and Peel desired to establish a system which should be universal and permanent. And with this view he had designed the appointment of a temporary commission, one member of which should be nominated by the Primate, as the representative of the Church, under whose supervision the tithes of every parish in the kingdom should be commuted into a rent-charge, regulated partly by the composition which had hitherto been paid, and partly by the average price of grain--wheat, barley, and oats. It was no new idea, since as far back as 1791 Pitt had proposed a general commutation of tithes for a corn rent, and had submitted a plan with that object to the Primate, though circumstances of which we have no accurate knowledge prevented him from proceeding with it.[241] Objections[242] were taken to this last part of the arrangement, chiefly because it would render perpetual the terms of existing compositions, the extreme augmentation of them which was provided for in the bill being only ten per cent., while it was notorious that the majority of incumbents had shown such liberality in these matters that the compositions rarely amounted to two-thirds of the sum to which they were legally entitled. And it was hardly denied that the measure did involve some sacrifice of the extreme legal rights of the clergy; but it was urged and generally felt by the most judicious friends of the Church that the peace and harmony which might be expected to be the fruit of the measure was worth some sacrifice, and the bill was passed with very general approval; a bill on similar principles, with such variations as were required by the differences between the two countries, being also passed for Ireland. The last measure on ecclesiastical subjects was also chiefly of a financial character, though its details were calculated, some directly, others indirectly, to produce benefits of a still more important nature. The condition of the property of the bishops and the ecclesiastical chapters had long been a subject of censorious remark. The various dioceses differed greatly in extent, as did, therefore, the labors of the diocesans. Some sees contained above 1000, one (London) even above 1200 parishes; others contained under 150. The revenues of some were very large, in one or two instances approaching £20,000 a year, while those of others scarcely exceeded £1000 or £1500 a year, thus affording incomes palpably inadequate to the support of the Episcopal dignity; so inadequate, indeed, that they were generally supplemented by the addition of some better endowed deanery or canonry. It was universally felt that such a deficiency and such a mode of supplying it were in themselves a scandal, which was greatly augmented by the system of translations to which it had given birth. The poorer bishoprics would hardly have been accepted at all had they not been regarded as stepping-stones to others of greater value; and the hope of such promotion had in some cases the not unnatural, however deplorable, effect of making the bishop anxious to please the minister of the day, to whom alone he could look for translation, by parliamentary subservience; and the still more mischievous result (if possible) of rendering the whole Bench liable to the same degrading suspicion; while the canonries and prebends in the different chapters, whose revenues also varied greatly, were in every diocese so numerous that they had become nearly sinecures, the duties rarely exceeding residence for a month, or, at the outside, six weeks in a year. These abuses (for such they could not be denied to be) had attracted the attention of Sir Robert Peel, who had appointed a commission, of which many of the highest dignitaries of the Church were members, and who, after very careful investigation and deliberation, presented a series of reports on which the ministry framed its measure. They proposed, as has already been mentioned in connection with the labors of Sir Robert Peel, an amalgamation of four of the smaller bishoprics at their next vacancy, in order hereafter to provide for the addition of two new ones at Manchester, or Lancaster, and Ripon, without augmenting the number of bishops. Lord Melbourne apparently feared to provoke the hostility of some of the extreme Reformers, who had recently proposed to deprive the bishops of their seats in the House of Lords, if he should attempt to increase the number of the spiritual peers; though, as their number had been stationary ever since the Reformation, while that of the lay peers had been quadrupled, such an objection hardly seemed entitled to so much consideration. Another clause was directed toward the establishment of greater equality between the revenues of the different bishoprics, a step which, besides its inherent reasonableness and equity, would extinguish the desire of promotion by translation, except in a few specified instances. Various reasons, sufficiently obvious and notorious, rendered the two archbishoprics, and the bishoprics of London, Durham, and Winchester, more costly to the occupants than the other dioceses; and these were, therefore, left in possession of larger revenues than the rest, proportionate to their wider duties or heavier charges. But all the others were to be nearly equal, none exceeding £5500, and none falling below £4500; while the five richer sees were also the only ones to which a prelate could be translated from another diocese. It followed, almost as a matter of course, that the practice of allowing a bishop to hold any other preferment was to cease with the cessation of the cause that had led to such an abuse. Another part of the bill provided for the suppression of such canonries or prebends as might fairly be considered superfluous. Four were considered sufficient for the proper performance of the duties of each cathedral; and the extinction (after the lives of the present holders) of the rest was designed to form a large fund, to be at the disposal of the Ecclesiastical Commissioners,[243] and to be applied by them chiefly to meet the wants of the more populous parishes in different large towns, for which it had hitherto been difficult to make any provision,[244] by contributing to the erection of additional churches, by increasing the incomes of the incumbents in cases where it was insufficient, or in any other way which the practical experience of the members of the commission might suggest. One very important reform of a different kind was also provided for in the abolition of pluralities, the bill prohibiting the holding of two livings by the same person except they were within ten miles of each other. The measure was objected to by Sir Robert Inglis, who had represented Oxford as the peculiar champion of Protestant and Church principles ever since 1829, and by a party which shared his views, as one calculated to be "fatal to the best interests of the Church." They looked on the property of the Church and everything connected with it as invested with so peculiar a character, that they not only contested the right of Parliament to take any step to diminish its revenues or to change the employment of them, but they even "disputed its right to deprive one class of the clergy of any portion of their revenues for the purpose of distributing it among another." But the distinction thus made between Church property and that of any other public body seems one which can hardly be supported. The purposes for which ecclesiastical chapters or officials have been endowed with possessions and revenues are undoubtedly of a more sacred character than the duties imposed on lay corporations; but that consideration cannot be regarded as affecting the tenure of those possessions, or as inconsistent with the doctrine that they are national property, bestowed by the nation on the Church for the service and advantage of the people; deeply interested not only in the maintenance of an Established Church, but in that Church being in the highest possible degree efficient for its holy objects. Being so bestowed and appropriated, that property must, on every principle of the constitution, be subject to the control of the national Parliament. And surely that control could never be more legitimately exerted than in carrying out the recommendations of a commission which numbered among its members several of the prelates of the Church, whose profession and position were a guarantee for their anxiety to preserve all the rights of the Church which contributed to its credit or efficiency; while their matured experience enabled them better than any other men to judge how to reconcile the maintenance of its dignity with the extension of its usefulness. Notes: [Footnote 226: The second resolution affirmed that "this House looks forward to a progressive improvement in the character of the slave population, such as may prepare them for a participation in those civil rights and privileges which are enjoyed by other classes of his Majesty's subjects." (Stapleton's "Life of Canning," iii., 98, where also large extracts from the minister's speech are given.)] [Footnote 227: Trinidad, St. Lucia, and Demerara were the only British islands which had not separate Legislatures.] [Footnote 228: Miss Martineau. "History of the Thirty Years' Peace," book iv., c. viii.] [Footnote 229: Alison, "History of Europe," 2d series, c. xxxi., sec. 74.] [Footnote 230: In the debate on the Registration Bill, in 1836, Lord John Russell stated that two hundred and twenty eight unions had already been formed in England and Wales, and that it might be calculated that when the whole country was divided into unions the entire number would amount to something more than eight hundred.] [Footnote 231: See Lord Althorp's speech, of parts of which an abstract is given in the text.--_Parliamentary Debates_, xxii., April 17.] [Footnote 232: Lord Althorp made the following frightful statement of the crimes committed in the province of Leinster alone in the last three months of 1832 and the first three of 1833: 207 murders, 271 cases of arson. The assaults attended with grievous personal injury were above 1000; burglaries and robberies, above 3000.] [Footnote 233: It was often asserted that fourteen-fifteenths of the land in Ireland belonged to Protestants, but this estimate was, probably, an exaggeration.] [Footnote 234: "Memoirs of Sir Robert Peel," ii., 3, 19.] [Footnote 235: "Memoirs of Sir Robert Peel," pp. 31, 32.] [Footnote 236: "One important question I found practically, and perhaps unavoidably, decided before my arrival, namely, the dissolution of the existing Parliament. Every one seemed to have taken it for granted that the Parliament must be dissolved, and preparations had accordingly been made almost universally for the coming contest."--_Peel's Memoirs_, ii., 43.] [Footnote 237: "Middle Ages," ii., 31 _seq_. See also Stubbs, "Constitutional History," i., 82-92 _et seq._] [Footnote 238: See Hallam's "Constitutional History," ii., 155.] [Footnote 239: This was a matter of no small importance. The number of boroughs included in the bill was 183, having a population of about two millions. Their annual income was stated by Lord John Russell to be as nearly as possible £2000 a year for each, being £367,000; but their annual expenditure exceeded that amount by £10,000, being £377,000; "besides which there was a debt of £2,000,000 owing by these bodies."] [Footnote 240: See Hallam, "Middle Ages," ii., 205-207.] [Footnote 241: "Life of Pitt," ii., 131. Lord Stanhope imagines that the plan was relinquished in consequence of discouraging comments by the Archbishop (Dr. Moore).] [Footnote 242: These objections were founded on the following calculations, or something similar to them. The tithe was the tenth of the produce. In letting estates it was estimated that a farm ought to produce three rents; in other words, that a farm let at £1 an acre ought to produce yearly £3 an acre. One-tenth of three pounds, or 6s., therefore, was what the clergyman was entitled to claim. Out of this, however, he had to defray the cost of collection, which might, perhaps, be one shilling, leaving him five shillings. But the average of compositions over the whole kingdom was under 2s. 9d., or eleven-twentieths of what he was entitled to; and if augmented by ten per cent., it would not exceed three shillings.] [Footnote 243: The fund so created was expected to amount to £130,000 a year.] [Footnote 244: As instances of the want of church-room in such towns, Lord John cited the dioceses of London, Chester, York, Lichfield, and Coventry, containing a population of 2,590,000 persons, with church accommodation for only 276,000, or one-ninth of the population; the Commissioners, from whose report he was quoting, reckoning that church-room ought to be provided for one-third.] CHAPTER XI. Death of William IV., and Accession of Queen Victoria.--Rise of the Chartists.--Resignation of Lord Melbourne in 1839, and his Resumption of Office.--Marriage of the Queen, and Consequent Arrangements.--The Precedence of the Prince, etc.--Post-office Reform.--War in Afghanistan.--Discontent in Jamaica.--Insurrection in Canada.--New Constitution for Canada and other Colonies.--Case of Stockdale and Hansard. The reforms mentioned in the preceding chapter were the last measures of the reign of William IV. In the summer of the next year, 1837, he died, and was succeeded in his British, though not in his Hanoverian, dominions by our present gracious sovereign, who had only just arrived at the age which entitled her to exercise the full authority of the crown. The change was calculated to strengthen the crown, by enlisting the chivalrous feelings of all that was best in the nation in the support of a youthful Queen, and in a lesser degree it for a time strengthened the ministry also; but, with respect to the latter, the feeling did not last long. For the next three years the summers were very unfavorable to the farmer; the harvests were bad; the inevitable accompaniment of a rise in prices had caused severe and general distress, and distress had produced clamorous discontent, and in some districts formidable riots. It had been greatly aggravated in the manufacturing counties by the operations of the trades-unions, which had gradually put forth pretensions to regulate the wages and other conditions of work, and had enforced them with such tyrannical violence, not flinching from the foulest crimes, that in many instances they had driven the masters to close their factories rather than submit to their mandates; and in others had compelled the workmen themselves to discontinue their labors, thus spreading destitution among thousands whose earnings, if they had been allowed to consult their own wishes, would have been amply sufficient for the support of their families;[245] and the evil had grown to such a height, that in 1838 a committee was appointed by the House of Commons to investigate the whole subject of trade combinations. But the turbulent spirit excited by this distress did not now confine itself to single outbreaks of violence, but, under the guidance of some demagogues of a more methodical turn of mind than usual, developed itself in a systematic organization having for its object what they called "the people's charter," which aimed at a total revolution of the existing parliamentary system, with the avowed design that, when adopted, it should eventually lead to an entire reconstruction of the government. The Chartists, as they called themselves, had advocates even in Parliament, who presented their petitions to the House of Commons, and tried, though unsuccessfully, to give them importance by the appointment of a committee to investigate the character of the reforms which they demanded. They were not, however, contented with peaceful modes of pressing their demands, but, in the course of the summer of 1839, broke out in formidable riots in different parts of the country. At Birmingham they set fire to different parts of the town, carrying on their work of pillage and destruction to such a pitch that the Duke of Wellington compared the condition of the town to one taken by storm in regular warfare; and at Newport, in Monmouthshire, they even planned and carried out an attack on the troops quartered in the district. But this violence led for a time to the suppression of the movement, the leaders in the Newport riots being convicted of high-treason; and, though the government forbore to put the extreme severities of the law in force against them, those who remained unconvicted had been taught by their example the danger which they incurred by such proceedings; and some years elapsed before a series of revolutionary troubles on the Continent again gave a momentary encouragement to those in this country who sympathized with the revolutionists, and prompted them to another attempt to force their views upon the government and the people. It had nearly, however, been another ministry on whom the task of quelling these riots had fallen. Though, as has been already said, Lord Melbourne's cabinet derived a momentary strength from the accession of a young Queen, the support it thus acquired did not last; and in May, 1839, having been defeated on a measure of colonial policy, which will be mentioned hereafter, the cabinet resigned. The Queen intrusted the task of forming a new administration to Sir Robert Peel, who undertook it with a reasonable confidence that he should be able to hold his ground better than formerly, now that the retirement of his predecessors was their own act, and admitted by them to have been caused by a consciousness of the divisions among their supporters and their own consequent weakness. He had the greater reason for such confidence, since two of the colleagues of Lord Grey who had refused his offers in 1834, Lord Stanley and Sir James Graham, were now willing to unite with him; and he had almost completed his arrangements, when he was stopped by an unexpected, though not altogether unprecedented, impediment. It will be recollected that, in 1812, some of the arrangements for the formation of a new administration on the death of Mr. Perceval were impeded by a doubt which was felt in some quarters whether the new ministers would be allowed to remove one or two officers of the household, to whom the Regent was generally understood to be greatly attached, but who were hostile to the party which hoped to come into power, though it was afterward known that these officers had felt themselves bound to retire as soon as the arrangements in contemplation should be completed.[246] Sir Robert Peel was now met by a difficulty of the same kind, but one which the retiring ministers had the address to convert into a real obstacle. The Queen, who had warm affections, but who could not possibly have yet acquired any great knowledge of business, had become attached to the ladies whom Lord Melbourne had appointed to the chief places in her household. It had never occurred to her to regard their offices in a political light; and, consequently, when she found that Sir Robert considered it indispensable that some changes should be made in those appointments, she at once refused her consent, terming his proposal one "contrary to usage and repugnant to her feelings." Sir Robert, however, felt bound to adhere to his request for the removal of some of the ladies in question; for, in fact, they were the wives and sisters of his predecessors, and a continuance of their daily intercourse with the Queen might reasonably be expected to have some influence over her Majesty's judgment of the measures which he might feel it his duty to propose. Such a difficulty could not have arisen under a male sovereign; but Lord Melbourne himself had departed from the ordinary practice when he surrounded his royal mistress with ladies so closely identified with his cabinet. It is very possible that he had originally made the appointments without any such design, from the careless indifference which was his most marked characteristic; but he cannot be so easily acquitted when, in reply to the Queen's application to him for advice on the subject, he, being joined in his assertion by Lord John Russell, assured her that Sir Robert Peel's demand was unjustifiable and unprecedented. Supported by the positive dictum of the ministers on whose judgment she had hitherto been bound to rely, the Queen naturally adhered to her decision of refusing to permit the removal of the ladies in question, and the result was that Sir Robert Peel declined to take office under circumstances of difficulty beyond those to which every new minister must of necessity be exposed, and Lord Melbourne and his colleagues resumed their posts. The transaction was, of course, canvassed in both Houses of Parliament. Sir Robert Peel and the Duke of Wellington, who was the spokesman of the party in the House of Lords, defended their refusal to undertake the government on any other condition than that for which they had stipulated, on the ground that the authority to make such changes in the household as they had proposed was indispensable, as a proof of their possession of her Majesty's confidence; while Lord Melbourne, with a strange exaggeration, defended the advice which he had given her Majesty by the assertion that to have complied with Sir Robert Peel's proposal would have been "inconsistent with her personal honor." Other arguments on the same side were based on the alleged cruelty of separating her Majesty "from the society of her earliest friends, her old and constant companions;" an argument which was disposed of by Lord Brougham's remark, that till she had become Queen (not yet two years before) she had had no acquaintance with them whatever.[247] But it is needless to dwell at any length on the case, in which all subsequent historians and political critics, however generally prepossessed in favor of the Liberal ministers, have given up their position as untenable. Her Majesty herself kept strictly on the path of the constitution in guiding herself by the counsels of those who, till their successors were appointed, were still her responsible advisers. But the course which they recommended was absolutely irreconcilable with one fundamental principle of the constitution--the universal responsibility of the ministers. In denying the right of the incoming ministers to remodel the household (or any other body of offices) in whatever degree they might consider requisite, they were clearly limiting the ministerial authority. To limit the ministerial authority is to limit the ministerial responsibility; to limit the ministerial responsibility is to impose some portion of responsibility (that portion from which it relieves the minister) on the sovereign himself, a dangerous consequence from which the constitution most carefully protects him. In fact, that the advice Lord Melbourne gave was indefensible was tacitly confessed by himself, when, on the recurrence of the same emergency two years later, he was compelled to recommend a different course;[248] and the ladies whom Sir Robert had considered it necessary to remove anticipated their dismissal by voluntary resignation. It may be added that, at the close of this same year, Lord Melbourne himself insisted on nominating the private secretary to the Prince whom the Queen was about to marry, though no one could pretend that offices in his household were as important as those in that of the sovereign; and though, if there was any post in which the Prince might have been supposed to have a right to an unfettered choice, that might have been supposed to have been the office of his private secretary.[249] Her Majesty's marriage with Prince Albert of Saxe-Coburg, her first cousin--one tending as greatly to the happiness of herself and the advantage of the nation as any royal marriage recorded in history--took place in the beginning of 1840; and in the preparatory arrangements-- matters of far greater consequence to the Queen's feelings than any appointments in the household--the ministry, by singular mismanagement, contrived to force the consideration of other constitutional questions on Parliament in such a way that the conclusions which were adopted, however inevitable, could hardly fail to be mortifying and vexatious to her Majesty, in whose cup of happiness at such a moment special care ought rather to have been taken to prevent the admixture of any such alloy. In the matter of the annuity to be settled on the young Prince, the Opposition must, indeed, share the blame with the minister. If it was unpardonable carelessness in the latter to omit the usual practice of previously consulting the leaders of the Opposition on the amount of the grant to be proposed, it was not the less impolitic and unworthy of such men as the Duke and Sir Robert Peel to show their disapproval of the inattention by a curtailment of the grant. The sum proposed, £50,000 a year, was fairly justified by the fact of its being the same which twenty-four years before had been settled on the Prince's uncle, Leopold, on his marriage with the Princess Charlotte. Indeed, if there were to be any difference, the circumstances might have been regarded as warranting an increase rather than a diminution of it. Money was certainly more plentiful in 1840 than in 1816, and the husband of an actual Queen occupied, beyond all question, a higher position than the husband of the heiress-presumptive, who might never become Queen, and who, in fact, never did. We cannot think, therefore, that the reduction of £20,000, which Sir Robert Peel proposed and carried, was reasonable or becoming, but regard it as neither called for by the circumstances of the kingdom, nor as befitting its liberality, nor as in harmony with its practice. But on the two other questions--one immediately affecting the constitution, and the other not absolutely unconnected with it--no defence of the minister seems available. At the opening of Parliament in 1840, her Majesty commenced her speech by the announcement of her intended marriage, describing the bridegroom simply as "the Prince of Saxe-Coburg and Gotha," the same expression which she had used in addressing the Privy Council a few weeks before. That description of him had at once struck her uncle, Leopold--who, since the death of his English wife, the Princess Charlotte, had become King of Belgium--as so imperfect and insufficient, that, on reading her address to the Privy Council, he at once wrote to her to point out that it would have been desirable to mention the fact of the Prince being a Protestant,[250] and that the omission would inevitably cause discontent. But, in spite of this warning, Lord Melbourne refused to advise the Queen to insert a statement of the Prince's religion in her speech, though it was by no means superfluous on such an occasion, since, if he were a Roman Catholic, a marriage with him would have incurred a forfeiture of the crown. The Duke of Wellington, on the other hand, regarded it as a positive duty to require that the fact of the Prince being a Protestant should be mentioned, so as to show the care of Parliament to prevent any constitutional precautions from being overlooked, such statement having, indeed, been usually made on similar occasions. When he, therefore, moved an amendment to insert the word "Protestant" in the description of the Prince, Lord Melbourne did not venture to divide the House against it; but still his management gave an ungracious appearance to the transaction, as if there had been in any quarter an unwillingness to recognize the fact of the Prince's Protestantism till the recognition was forced on the government by the action of the Parliament. The third question, as affecting the relative ranks and positions of the different members of the royal family, cannot be said to have been wholly unconnected with the provisions of the constitution; and the mismanagement of the minister was, perhaps, even more sure to attract notice in this case than in the other, since to introduce into a bill a clause which had no connection whatever with its title had something of the appearance of a deliberate slight to the two Houses. A bill to naturalize the Prince was, of course, indispensable. But into it the ministers, without any notice, had introduced a clause enabling him "during his life to take precedence in rank after her Majesty in Parliament and elsewhere as her Majesty might think fit and proper, any law, statute, or custom to the contrary notwithstanding." It was admitted that no such precedence had been given to Prince George of Denmark, nor to Prince Leopold. And there were obvious difficulties in the way of conferring such a life-long precedence, because, as Lord Brougham had pointed out, it was possible that the Queen might die without issue, in which case the King of Hanover would become King of England also, and his son the Prince of Wales; and it would have been an inconceivable anomaly that a foreign naturalized prince should take precedence of the Prince of Wales, whose special rank and importance was recognized in many acts of Parliament. This objection was so clearly insuperable, that Lord Melbourne consented to alter the clause so as to give the Prince precedence only "after the heir-apparent." But even this concession failed to satisfy the objectors, the King of Hanover, among others, positively refusing to waive his precedence over any foreign prince. And eventually the minister withdrew the clause altogether, and the bill, as it was passed, was confined to the naturalization of the Prince. Lord Melbourne had thus contrived to make the Queen and Prince appear as if they were desirous to induce the two Houses by a sort of trick to confer on the Prince a precedence and dignity to which he was not entitled, and to render the refusal of Parliament to be so cajoled a fresh cause of mortification to the royal pair. The course that was eventually adopted is understood to have been suggested by the Duke of Wellington--to withdraw the affair altogether from the cognizance of Parliament, and to leave it to the Queen to confer on the Prince whatever precedence she might choose, as it was certainly within her right to do. And so, a few days after the bill had passed, she did by letters-patent give him precedence next to herself "on all occasions and in all meetings, except when otherwise provided by act of Parliament," as, seventeen years later, she, in the same way, with the cordial approval of the whole nation, conferred on him the title of Prince Consort. And apart from its convenience, as avoiding all unseemly discussions, this would seem to have been the most natural and proper mode of settling such a matter. The Queen is the fountain of honor in this kingdom, and at her own court she can certainly confer on any of her own subjects whatever precedence she may think fit, while it may be doubted whether any act of a British Parliament could give precedence at a foreign court. It was, probably, not in his character of Duke of Cumberland, but as an independent sovereign, that the King of Hanover maintained his claim to superior precedence; and it was plain that the most illustrious subject could not possibly at any court be allowed to rank above a king. With reference to its possible effect on the subsequent relations of Peel and his followers with the court, it was, perhaps, well that a few months later they had the opportunity of proving that no personal objection to the Prince himself had influenced their course in these transactions, by giving a cordial assent to the ministerial proposal of conferring the Regency on him in the event of the Queen giving an heir to the throne, and dying while he was still a minor. The principle was the same as that which had guided the arrangements for a Regency ten years before; but it was not inconceivable that Parliament might have hesitated to intrust so large an authority to so very young a man, and him a comparative stranger, such as the Prince still was, had the leaders of the Opposition given the slightest countenance to such an objection. Lord Melbourne's ministry was hardly strengthened by the circumstances under which it resumed office. Yet the close of the same year witnessed a reform of which it is hardly too much to say that no single measure of this century has contributed more to the comfort of the whole mass of the people, with which it has also combined solid commercial benefits. Hitherto the Post-office had been managed in a singular manner, and the profit derived from it had been treated as something distinct from the ordinary revenue of the kingdom. In the reign of Charles II. it had been given to the Duke of York, and the grant was regarded as conferring on him such extensive rights, that when, some years afterward, an enterprising citizen set up a penny post for the delivery of letters in the City and its precincts, the Duke complained of the scheme as an infraction of his monopoly, and the courts of law decided in his favor. That grant ceased, as a matter of course, on the Duke's accession to the throne; and in the reign of Queen Anne a portion of the Post-office proceeds was appropriated, with the general consent of a grateful country, to reward the great achievements of the Duke of Malborough, a perpetual charge on it of £5000 a year being annexed to the dukedom. In those days the postage of a letter was twopence for short distances, and threepence for any distance beyond eighty miles.[251] But those charges had been gradually increased; about the middle of the century the lowest charge was fixed at fourpence, rising in proportion to the distance, till the conveyance of a single letter from one extremity of the kingdom to the other cost eighteen-pence. Such a rate could not fail to be very profitable; and by the beginning of the present reign the yearly profit exceeded a million and a half of money. The heaviness of the charge, however, had latterly attracted attention, and had been the cause of many complaints, as being a great discouragement, and, in the case of the poorer classes, a complete obstacle to communication. However, neither the ministers nor the Parliament had succeeded in devising any remedy, since a system affording so large a return was not a thing lightly to tamper with, when those who complained suddenly found a practical leader in Mr. Rowland Hill, who published a pamphlet on the subject, in which he affirmed the cost of the conveyance of each letter even for such a distance as from London to Edinburgh to be infinitely less than a farthing; and that, consequently, all the rest of the postage was a tax for the purposes of revenue. When this fact was once established, it needed no argument to prove that to increase the tax paid by each recipient of a letter in proportion to the distance at which he lived from the writer was an indefensible unfairness; and, after much investigation and discussion, Mr. Hill succeeded in converting the ministers to his view. Accordingly, the Budget for 1839, introduced by Mr. Spring Rice, then Chancellor of the Exchequer, contained a clause which reduced the postage for every letter weighing less than an ounce to a uniform charge of a penny, to be prepaid by means of a stamp to be affixed to each letter by the sender. It was not without plainly-expressed reluctance that the scheme was consented to by the Opposition; nor can their hesitation be considered as unreasonable, in the very unsatisfactory condition of the finances of the kingdom at the time. The balance-sheet of the preceding year showed a considerable deficiency. There was a large unfunded debt; and even Mr. Hill's most sanguine calculations admitted a probable loss to the Post-office of £1,200,000 for the first year or two; though he expressed his confidence that eventually the correspondence of the kingdom would be found to increase so largely as to make up for the greater part, if not the whole, of the deficiency. His anticipations were far outran by the reality. In 1839 the Postmaster-general estimated the number of letters sent yearly by the post at less than twenty-five millions. They are now upward of a thousand millions, a number the conveyance of which (with the addition of newspapers, whose circulation had also been greatly augmented by a recent reduction of the tax to a penny) would have severely taxed the whole carrying power of the kingdom before the introduction of railroads. Nor have the benefits of the new system been confined to ourselves. Foreign nations have followed our example, though not quite in the same degree, till an international postage is at length established throughout the whole of the civilized world. And it has not been only the happiness of private individuals that has been augmented by this facility of communication. In its gradual development it has largely promoted the extension of trade of every kind, and, by facilitating a commercial intercourse between nations, it cannot but contribute to the maintenance of friendship and peace. The full advantages of this reform could not be seen at first; but, even had it been appreciated as fully as we appreciate it now, no approval of it could have counterbalanced the general dissatisfaction with which the ministry was regarded. At home the finances were falling into great disorder, the expenditure of the year greatly exceeding the income; while the feeling that their Irish policy was dictated by a wish to purchase at any price the support of O'Connell, was still more injurious to them, for he was already beginning to renew agitation in Ireland, inaugurating a new association, which, though its purposes were faintly veiled for a time under the title of the Precursor Association, was understood to point at a repeal of the Union; while the ministers, though they denounced such a measure as ruinous to every part of the kingdom, seemed willing to give it practical encouragement by a bill which they introduced, which bore the name of a Registration Act for Ireland, but which was not confined to that object. On the contrary, it contained a provision for lowering the qualification for the franchise by one-half; so that it was, in fact, a new Reform Bill for Ireland,[252] calculated greatly to increase his influence by the number of voters of the poorer classes whom it would create. The bill was defeated, but the odium of having proposed it remained. But, besides these home difficulties, there were troubles abroad, both in the East and in the West. In the East, the complications inseparable from a dominion like that of ours in India, where constant expansion seemed to have become a law of its existence, had involved us in a war with a new enemy, the warlike Afghan nation; in the West, both Jamaica and Canada were in a state threatening insurrection. Indeed, the troubles in Jamaica had been the immediate cause of that resignation of the ministry in 1839 which has already been mentioned. Measures adopted in the English Parliament with reference to the termination of that apprenticeship system which, as we have seen, formed a part of the bill for the abolition of slavery, and another for the regulation of the prisons in the island, had given such offence to the colonial Assembly, never very manageable, that the members passed a resolution that their legislative rights had been violated, and that they would abstain from all exercise of their legislative functions, except such as might be necessary "to preserve inviolate the faith of the island with the public creditor, until" (by the rescinding of the resolutions, etc., of which they complained) "they should be left to the free exercise of their inherent rights as British subjects." And this resolution was seconded by an insulting protest, in which they drew an offensive comparison between the state of crime in the island and that which prevailed in Great Britain, taunting the British Parliament with the murders and acts of incendiarism which terrified Ireland night and day, with the murders of Burke and Hare in Scotland, with the law of divorce and _crim. con._ trials in England, and "a Poor-law which has taken millions from the necessities of the destitute to add to the luxuries of the wealthy." The Governor dissolved the Assembly, but that which succeeded re-adopted the resolutions of its predecessor, and the ministers, in consequence, brought in a bill "to suspend the existing constitution of the island for a limited number of years, and to provide that during that interval its legislative functions should not be exercised by a Governor, a Council, and a House of Assembly, but should reside in the Governor and Council alone." The emergency was too great and undeniable, the remedy proposed was also too unprecedented in its stringency, to be dealt with without the gravest deliberation; and the House of Commons accordingly gave the matter the patient consideration which became both it and themselves. They allowed the island to appear by counsel against the bill, and listened for many hours to an elaborate defence of the conduct of the Assembly, which if it failed to change the intention of the ministers, convinced Sir Robert Peel and his party that their measure was doubtful in its justification and impolitic in its severity. He pointed out that "the bill was neither more nor less than one for the establishment of a complete despotism--one which would establish the most unqualified, unchecked, unmitigated power that was ever yet applied to the government of any community, in place of that liberal system which had prevailed for upward of one hundred and fifty years." And, though he did not for a moment question the power of Parliament to pass such a measure, he greatly doubted the policy of such an exertion of it. A somewhat similar measure affecting Canada they had been compelled to enact in the preceding year, and he feared lest "it might seem to be coming to be a practice of Parliament to suspend a constitution every session." And he quoted a speech of Canning, delivered fifteen years before, in which that eloquent statesman, a man by no means inclined to a timorous policy, had declared that "no feeling of wounded pride, no motive of questionable expediency, nothing short of real and demonstrable necessity, should ever induce him to moot the awful question of the transcendental power of Parliament over every dependency of the British crown. That transcendental power was an ordinance of empire, which ought to be kept back within the penetralia of the constitution. It exists, but it should be veiled. It should not be produced on trifling occasions, or in cases of petty refractoriness or temporary misconduct." And Sir Robert, "looking at all the papers before the House, could not say that there was here any vindication for bringing forward this transcendental power." He asked whether "they had ever treated with so much severity a conquered colony amid the first heat of animosity after the contest." And he traced the history of our government of the island back to the time of Charles II., pointing out (as Burke had formerly argued with respect to our Colonies in North America) that "Jamaica owed its colonization by British subjects to the conquest that was made of it by the arms of Cromwell; that its first English population was composed of those who, disgusted with the excesses of the civil wars, there found a refuge," and who had carried with them that attachment to liberty which, as early as 1678, had led them successfully to repel the attacks made on the privileges of their House of Assembly by the ministers of Charles II. He warned the House, also, that if this measure were passed, "a sympathy for the people of Jamaica would be excited throughout the other West Indian possessions of the crown." And, while fully admitting that the conduct of the Assembly had been "foolish and unjustifiable," he still recommended that it should be treated in a conciliatory spirit, which as yet had not been shown toward it. The government carried their proposal by a majority of no more than five in a very full house, a success which they regarded as a defeat, and, as has been already mentioned, resigned. But as the state of the question and of the island did not admit of delay, on their resumption of their offices they introduced a fresh measure, which the Conservatives again curtailed of its most severe clauses, and which, in the form in which it was eventually passed, gave the Assembly time to reconsider its conduct, and, without the humiliation of confessing itself guilty, to give a practical recantation of their offensive resolutions, by resuming its work of legislation, any farther delay of which would on many subjects be very mischievous to the island itself. The distinct assertion by both parties of the power of the Parliament to inflict even the severest penalty enabled the Houses to take this conciliatory course without loss of dignity; while the stern disapproval of the conduct of the Assembly which the Conservative leader had expressed, even when pleading for a milder treatment of it, convinced the colonists that any protracted contumacy would be dangerous, and would deprive them for the future of all title to even the modified protection which on this occasion had saved them. In the discussion of these transactions, Peel, as we have seen, had alluded to the affairs of Canada, which had been of a still more serious complexion; since there the discontent of the colonists in the Lower Province had developed into armed insurrection. We have seen that, from the first moment after the country had passed into our possession, there had been almost constant dissensions between the old French colonists and the English immigrants who crossed over both from England and from the colonies on the southern side of the St. Lawrence in the early part of the reign of George III. The desire of terminating these divisions, which had their root in a difference of religion as well as of race, the French settlers being Roman Catholics, had been one of the chief motives which had led Pitt in 1791 to divide the country into two provinces.[253] And for many years the scheme was fairly successful; but, toward the end of the reign of George IV., the political excitement caused by the agitation in England of the question of Catholic Emancipation, and subsequently of Reform, spread across the Atlantic to the Canadas; and the French portion of the colonists, who almost monopolized the representation in Lower Canada, began to urge the adoption of changes utterly inconsistent with the existing constitution of the colony. In the hope of compelling the compliance of the home government with their demands, in 1832 and the following years they refused to vote the necessary supplies; and, gaining courage, as it were, from the contemplation of their own violence, and under the guidance of a leader of French extraction, a M. Papineau, who scarcely concealed his hope of effecting the complete severance of the Lower Province from the British dominion, they proceeded to put forth farther demands, which they regarded as plausible from the apparent resemblance of the changes which they required to the system of the English constitution, but which, to use the words in which Sir Robert Peel described them, would have established "a French republic." The most important of them were that the Upper or Legislative Council should, like the Assembly, be rendered elective, instead of, as had hitherto been the case, being nominated by the crown. And another asked that the Executive Council should be made responsible to the Assembly, in the same manner as in England the ministers of the crown were responsible to Parliament. As it was at once shown that the ministry at home had no intention of granting these demands, Papineau collected a band of malcontents in arms, with whom he took possession of one or two small towns, and ventured even to measure his strength with the Commander-in-chief of the province, Sir John Colborne, one of the most distinguished of Wellington's comrades and pupils. His force was utterly routed, and he himself fled across the frontier to New York. A similar outbreak, excited in the Upper Province by a newspaper editor, was crushed with equal ease and rapidity.[254] And the next year, 1838, Lord John Russell brought forward a bill to suspend the constitution of the colony, and to confer on a new Governor, who was at once to proceed thither, very ample powers for remodelling the government of the province, subject, of course, to the sanction of the home government. In the previous year he had succeeded in carrying some resolutions announcing the determination of Parliament not to concede the demands of the Assembly of the Lower Province, which have been already mentioned. And the reasons which he gave for this course are worth preserving, as expressing the view recognized by Parliament of the relations properly existing between the mother country and a colony. It was on a proper understanding of them that he based his refusal to make the Executive Council in Canada responsible to the Assembly. He held such a step to be "entirely incompatible with those relations. Those relations require that his Majesty should be represented, not by a person removable by the House of Assembly, but by a Governor sent out by the King, responsible to the King, and responsible to the Parliament of Great Britain. This is the necessary constitution of a colony; and if we have not these relations existing between the mother country and the colony, we shall soon have an end of these relations altogether." And he pointed out the practical difficulties which might reasonably be apprehended if such a change as was asked were conceded. "The person sent out by the King as Governor, and those ministers in whom the Assembly confided, might differ in opinion, and there would be at once a collision between the measures of the King and the conduct of the representatives of the colony." The plan of sending out a new Governor free from any previous association with either of the parties, or any of the recent transactions in the colony, was, probably, the wisest that could have been adopted. Unfortunately, it was in some degree marred by the choice of the statesman sent out, Lord Durham, a man of unquestioned ability, but of an extraordinarily self-willed and overbearing temper. He drew up a most able report of the state of the provinces, combined with recommendations of the course to be pursued toward them in future, so judicious that subsequent ministers, though widely differing from his views of general politics, saw no better plan than that which he had suggested; but, unhappily, the measures which he himself adopted, especially with respect to the treatment of those who had been leaders in the late rebellion, were such manifest violations of law, that the government at home had no alternative but that of disallowing some of them, and carrying a bill of indemnity for others. He took such offence at their treatment of him, though it was quite inevitable, that he at once resigned his appointment and returned home. But the next year the Queen sent down a message to the Houses recommending a union of the two provinces (a measure which had been the most important, and the very foundation, of his suggestions), and Lord John Russell introduced a bill which, as he described its object, he hoped would "lay the foundation of a permanent settlement of the affairs of the entire colony." The main feature of the government policy was the formation of "a legislative union of the two provinces on the principles of a free and representative government," and the establishment of such a system of local government as amounted to a practical recognition of the principle so earnestly repudiated, as we have seen, by Lord John Russell a year or two before. It was not, perhaps, fully carried out at first. Lord Sydenham, who had succeeded Lord Durham, reported to the home government, as the result of a tour which he had taken through a great part of the country, that in the whole of the Upper Province, and among the British settlers of the Lower Province, "an excellent spirit prevailed, and that he had found everywhere a determination to forget past differences, and to unite in an endeavor to obtain under the union those practical measures for the improvement of the country which had been too long neglected in the struggle for party and personal objects." But of the French Canadians he could not give so favorable a report. Efforts were still made by some of the old Papineau party to mislead the people; but he was satisfied they would not again be able to induce the peasantry to support any attempt at disturbance. It was natural that that party should still feel some soreness at the utter failure of their recent attempts and the disappointment of their hopes; and affairs took the longer time in being brought into perfect order and harmony through a strange mortality which took place among the first Governors-general. Lord Sydenham died the next year of lockjaw, brought on by a fall from his horse; Sir Charles Bagot was forced to retire in a state of hopeless bad health after an administration equally brief; two years later, Sir Charles Metcalfe, who succeeded him, returned home only to die; and it was not till a fourth Governor, Lord Elgin, succeeded to the government that it could be said that the new system, though established five years before, had a fair trial. Fortunately, he was a man admirably qualified by largeness of statesman-like views and a most conciliatory disposition for such a post at such a time; and he strictly carried out the scheme which was implied by the bill of Lord John Russell, and to a certain extent inaugurated by Lord Sydenham, selecting his advisers from the party which had the confidence of the Legislative Assembly, and generally directing his policy in harmony with their counsels; so that under his government the working of the colonial constitution was a nearly faithful reproduction of the parliamentary constitution at home. Such a policy was in reality only a development of the principle laid down by Pitt half a century before, and warmly approved by his great rival, that "the only method of retaining distant colonies with advantage is to enable them to govern themselves."[255] And since that day similar constitutions have been established in our other distant dependencies as they have become ripe for them--in New Zealand, the Cape, and the Australian colonies--almost the only powers reserved to the home government in those colonies in which such constitutions have been established being that of appointing the governors; that of ratifying or, if necessary, disallowing measures adopted by the colonial government; and, in cases of necessity, that of prescribing measures for the adoption of the local Legislatures, and even of compelling such adoption, in the event of any persevering opposition. The act of 1850, which established a constitution in Victoria, went even farther in the privileges it conferred on the colonists, inasmuch as it gave power to the Legislative Council to alter some of its provisions, and even to remodel the Legislative Council and Assembly. It may be doubted whether this last concession did not go too far, since in more than one important instance the government of that great colony has availed itself of it so liberally as to render it necessary to pass a fresh act of Parliament to enable her Majesty to give her royal assent to some of the changes which the Assembly had enacted.[256] Indeed, it cannot be said that the system has worked in every part or on every occasion quite as well as might have been hoped; nor can it be denied that the colonies have occasionally claimed a power of independent action in opposition to the home Parliament in a way to try severely the patience of the home government. After the British Parliament had adopted the policy and system of free-trade, the Canadian Assembly adhered to the doctrine of protection so obstinately that it actually established a tariff of import duties injurious to the commerce of the mother country, and apparently intended as a condemnation of its principles. But its contumacy showed how wholly different was the spirit of the British government from that which had prevailed in the last century; for though the home government had unquestionably the right of disallowing the offensive tariff, it forbore to exercise it; and, probably, by this striking proof that it considered a complete recognition of the principle of local self-government more important than any trifling financial or commercial advantage, contributed greatly to implant in Canada and all the colonies that confidence in the affectionate moderation of the home government which must be the strongest, if not the only indissoluble, bond of union. On the whole, it is hardly too much to say that no more statesman-like, and (if sentiment may be allowed a share in influencing the conduct of governments) no more amiable spirit animates any act of our modern legislation than is displayed in these arrangements for the management of our colonies. They are a practical exemplification of the idea embodied in the expression, "the mother country." A hundred years ago, Burke sought to impress on the existing ministers and Parliament the conviction that, "so long as our Colonies kept the idea of their civil rights associated with our government, they would cling and grapple to us, and no force under heaven would be of power to tear them from their allegiance." In the case of which he was speaking his warning, as we have seen, fell on deaf ears; but the policy of the present reign is a willing and full adoption of them, on a far larger scale than even his farseeing vision could then contemplate. Within the century which has elapsed since his time the enterprise of Britain has sent forth her sons to people another hemisphere; and they, her children still, cling to the parent state with filial affection, because they feel that, though parted from her by thousands of miles and more than one ocean, they are still indissolubly united to her by their participation in all the blessings of her constitution, her generous toleration, her equal laws, her universal freedom. On one transaction of these years the leaders of the Opposition were found acting in close agreement with the ministers. We have seen how, in the early part of the reign of George III., the House of Commons threw the sheriffs of London into prison, on account of their performance of what they conceived to be their duty as magistrates; and in 1840 it subjected the same officials to the same treatment on a question of the same character--the extent of the privilege of the House of Commons to overrule the authority of the courts of law. The question was in appearance complicated by the institution of several suits at law, and by the fact that the House was not consistent in its conduct, but allowed its servants to plead to the first action, and refused the same permission in the second, when the result of the first trial had proved adverse to them. The case was this: some inspectors of prisons has presented a report to Parliament, in which they alleged that they had found in Newgate a book of disgusting and obscene character, published by a London publisher named Stockdale. The House of Commons had ordered the report to be printed and sold by Messrs. Hansard, the Parliamentary publishers, and Stockdale brought an action against Messrs. Hansard for libel. Chief-justice Denman charged the jury that "the fact of the House of Commons having directed Messrs. Hansard to publish their reports was no justification to them for publishing a Parliamentary report containing a libel;" and Stockdale obtained damages, which were duly paid. Stockdale, encouraged by this success, when, in spite of the result of the late trial, Hansard continued to sell the report, brought a fresh action; but now the House forbade the publishers to plead to it; and, as they obeyed the prohibition, and forbore to plead, the case eventually came before the Sheriff's Court; fresh damages were given, and, in obedience to the writ of the Queen's Bench, the sheriffs seized Hansard's goods, and sold them to satisfy the judgment. Lord John Russell, as leader of the House, moved to bring to the Bar of the House all the parties concerned in the action--the plaintiff, his attorney, the sheriffs, and the under-sheriffs. He was opposed by nearly all the legal members of the House except the crown lawyers, Sir Edward Sugden especially warning the House that "a resolution of the House was of no avail in a court of justice;" while others taunted the House with want of courage in not proceeding against the judges themselves, rather than against their officers, which in this case the sheriffs were. There could be no doubt of the importance of the question, since it was no less, as the Attorney-general, Sir J. Campbell, put it, than a question whether Parliament or the courts of law had the superiority; and now Sir Robert Peel, as leader of the Opposition, came to the support of Lord John Russell, declaring his opinion to be, first, that "the House possessed every privilege necessary for the proper and effectual discharge of its functions;" secondly, that "the publication of evidence which had led the House to adopt any course was frequently essential to justify that course to the nation;" and thirdly, that "to judge of the extent of their privileges, and to vindicate them by their own laws, belonged to the House alone." And he pressed strongly on the House that it was "the duty of the House to fight the battle to the last," though he confessed that "it was with pain that he had come to the determination of entering into a contest with the courts of law." On one point the judges agreed with the House of Commons. The House committed the sheriffs; but, when they sued out their _habeas corpus_, the judges decided that the return of the Sergeant-at-arms that they were committed by the House for breach of privilege was a sufficient return. Stockdale brought fresh actions. But meantime the case was arousing a strong excitement in the country.[257] The singular hardship of the position of the sheriffs excited general sympathy: if they obeyed the House of Commons, which prohibited them from paying over to Stockdale the damages which they had received for him, the Court of Queen's Bench would be bound to attach them for disobedience to its order. If they obeyed the Queen's Bench, the House would imprison them for breach of privilege. And the national feeling is always in favor of the strictly defined authority of the courts of law, rather than of the somewhat indefinite claims of Parliament to interpret, and even to make, privilege. Another consideration, probably, weighed a little with the champions of the House--that their power of imprisonment ended with the session. As matters went on, it was found that even the Attorney and Solicitor-general differed as to the course to be pursued; and eventually Lord John Russell consented to adopt the advice which had been given by a former Attorney-general, Sir F. Pollock, and to bring in a bill to legalize all similar proceedings of Parliament in future, by enacting that a certificate that the publication of any document had been ordered by either House should be a sufficient defence against any action. The introduction of such a bill was in some degree an acknowledgment of defeat; but it can hardly be denied to have been not only a judicious step, but the only one practicable, if the contest between Parliament and the courts of law were not to be everlasting; and it met with general approval. If it was a compromise, it was one that satisfied both parties and both ends. It upheld the authority of the courts of law, and at the same time it practically asserted the reasonableness of the claim advanced by the House of Commons, by giving it for the future the power which it had claimed. Nor were people in this day inclined to be jealous of the privileges of Parliament, so long as they were accurately defined. They felt that it was for the advantage and dignity of the nation that its powers and privileges should be large; what they regarded with distrust was, a claim of power of which no one knew the precise bounds, and which might, therefore, be expanded as the occasion served. Notes: [Footnote 245: Fifty-two mills and 30,000 persons were thrown out of employment for ten weeks at Ashton in 1830 by the turning out of 3000 "coarse spinners," who could clear at the time from 28s. to 31s. per week. The following passage is extracted from an oath said to have been administered by the combined spinners in Scotland in 1823: "I, A B, do voluntarily swear, in the awful presence of God Almighty, and before these witnesses, that I will execute with zeal and alacrity, as far as in me lies, every task or injunction which the majority of my brethren shall impose upon me in furtherance of our common welfare, as the chastisement of _knobs_, the assassination of oppressive and tyrannical masters, or the demolition of shops that shall be deemed incorrigible."--_Annual Register_, 1838, pp. 204-207.] [Footnote 246: See page 221.] [Footnote 247: The question was examined with great minuteness by Lord Brougham a fortnight after the ministerial explanation. See "Parliamentary Debates," 3d series, xlvii., 1164.] [Footnote 248: It is stated on good authority that Lord Melbourne, in private conversation, justified or explained the line he had taken by his consideration for his friends, scores of whom would have had their hopes blighted by his retirement.] [Footnote 249: See "Life of the Prince Consort," i., 55.] [Footnote 250: "Life of the Prince Consort," i., 57.] [Footnote 251: Macaulay's "History of England," i., 386.] [Footnote 252: This is the name which the Liberal historian of the time, Miss Martineau, gives it. "The so-called Registration Bill was, in fact, an unannounced new Reform Bill for Ireland."--_History of the Peace_, book v., c. vi.] [Footnote 253: See _ante_, p. 127.] [Footnote 254: In one instance the rebels were aided by a party of citizens of the United States, who, without any sanction from their own government, seized an island on the St. Lawrence belonging to us, and attacked some of the Canadian villages. And this led to the discussion of a question of international combined with constitutional law, which Lord Campbell thus describes: "'Whether, if the subjects or citizens of a foreign state with which we are at peace, without commission or authority from their own or any other government, invade the English territory in a hostile manner, and levy war against the Queen in her realm, we are entitled to treat them as traitors?' The Canadian courts held that we could not, as they had never acknowledged even a temporary allegiance to our sovereign. And of this opinion was Sir William Follett. But, after reading all that is to be found on the subject, I come to the conclusion that they owed allegiance when, as private individuals, they voluntarily crossed the English frontier; that it was no defence for them to say that they then had arms in their hands and intended to murder the Queen's subjects."--_Life of Lord Campbell_, ii.,119. It certainly would have been no _defence_; but would it not have taken their conduct from under the definition of _treason_, and made it an act of _piracy_?] [Footnote 255: See Fox's words, quoted by Lord Stanhope.--_Life of Pitt_, ii., 90.] [Footnote 256: A couple of years after the period which is the boundary of the present work, this Canadian constitution of 1841 was superseded by a measure uniting Canada, Nova Scotia, and New Brunswick in one federal government, with, as the act recites, "a constitution similar in principle to that of the United Kingdom." The act farther provided for the admission of other dependencies of the crown in North America, Newfoundland, Prince Edward Island, British Columbia, and Rupert's Land into the union, and established as the constitution of the whole one scarcely differing from that of 1841, with the exception that both the Houses of the Legislature--called in the act the Senate and the House of Commons--were to be representative bodies, and that powers were conferred on them so absolutely free and independent, that it was thought necessary to add a clause providing that their "privileges, immunities, and powers were never to exceed those at the passing of the act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof."] [Footnote 257: Lord Campbell, in his autobiography, puts the transaction, in the phase at which it had now arrived, in a very serious light: "Next came a proceeding which placed me in a most difficult position; and the public never knew the danger which then existed of a convulsion unexampled in our history. The sheriffs sued out a writ of _habeas corpus_, directed to the Sergeant-at-arms, commanding him to produce before the Court of Queen's Bench the sheriffs of Middlesex, alleged to be illegally in custody, with the cause of their detention. Wilde, the Solicitor-general, was strong for refusing to make any return to the writ, and for setting the Court of Queen's Bench at defiance. Had I concurred in this opinion it would certainty have been acted on. The consequences would have been that the Sergeant-at-arms, even with the mace in his hand, would have been sent to Newgate by the Court of Queen's Bench. The House must have retaliated by committing the judges. The crown would then have had to determine on which side the army should be employed, and for a time we must have lived under a military government" (ii., 129). The noble and learned autobiographer does not explain why it should have been indispensable to employ the army on either side.] CHAPTER XII. Sir Robert Peel becomes Prime-minister.--Commercial Reforms.-- Free-trade.--Religious Toleration.--Maynooth.--The Queen's University.--Post-office Regulations.--The Opening of Letters.-- Naturalization of Aliens.--Recall of Lord Ellenborough.--Reversal of the Vote on the Sugar Duties.--Refusal of the Crown to Sanction a Bill.--The Question of Increase in the Number of Spiritual Peers.--Repeal of the Corn-laws.--Revolution in France, and Agitation on the Continent.--Death of Sir Robert Peel.--Indifference of the Country to Reform.--Repeal of the Navigation Laws.--Resolutions in Favor of Free-trade.--The Great Exhibition of 1851. The transactions mentioned in the last chapter were among the last events of Lord Melbourne's ministry. He had for some time been aware of his impending defeat in the House of Commons, and, greatly to his credit, had endeavored to make the return to office easier to his successors by the friendly counsels he had given to the Queen on the subject.[258] A dissolution of Parliament in the summer of 1841 only weakened his party, and in September he resigned, and was succeeded by Sir Robert Peel, who, comparatively short as was his tenure of office,[259] found it long enough to establish for himself a reputation as the greatest financier of Europe since the days of Pitt. It may be worth remarking that, in the "Memoirs of the Prince Consort," it is mentioned that in the course of his administration Peel found reason to change his judgment on the question of which House of Parliament it was the more desirable for the Prime-minister to be a member. Canning had more than once asserted his conviction that the public business would be more satisfactorily conducted when the Prime-minister was a commoner, founding his opinion chiefly on the paramount importance of financial questions, the discussion of which is almost confined to the House of Commons, and conceiving it to be supported by the history of the administration of Pitt, from whom, indeed, he had imbibed the idea; and in former years Peel had more than once expressed his concurrence with that view of the subject. But, from papers which were intrusted to him for the execution of his great work, Sir Theodore Martin learned that Peel had subsequently found reason to come to the opposite conclusion, not from any change in his view of the relative importance of the different departments of administration, but solely because "the amount of work imposed upon the first minister in the House of Commons, in addition to what he had to go through elsewhere, was too great for any human strength. In the House of Lords the Prime-minister would escape the necessity for being in a position to vindicate all the details of administration, and to answer the multiplicity of questions on all sorts of subjects, the putting of which has almost degenerated into a vice. He had, therefore, come to the conclusion that it was there he ought to be."[260] And, indeed, the subjects which demanded the care of the minister, and attracted the attention of Parliament, were constantly increasing in number, variety, and importance to the very end of his administration. Not only were the financial difficulties of the country, the depressed state of agriculture and commerce (the result of a succession of bad harvests), sufficient causes for grave anxiety, but the terrible war, of which mention has already been made, which we had now been carrying on for nearly three years in Afghanistan, and which, before the end of this very year, was about to be signalized by a disaster such as had never before befallen a British army, threatened to kindle the flames of war in Europe also, from the share which the intrigues of Russia had had in fomenting the quarrel; and the same danger was more than once in the course of the next five years imminent, from the irritation with which France regarded us, and which, commencing in Syria, while Lord Melbourne was still at the helm, lost no opportunity of displaying itself, whether in transactions in the remote Pacific Ocean or the old battle-field of the two nations, the Spanish peninsula; and finally, these embarrassing perplexities were crowned by the appalling visitation of famine, which, at the end of the fourth year of the administration, fell upon Ireland with a severity surpassing any similar event in modern history. With all these multiform difficulties the new minister grappled with unflinching courage, and with conspicuous success. Peace was preserved abroad, and financial prosperity was restored at home. Into the details of his measures devised for this last-mentioned object, though the leading features of his administration, and those on which his fame chiefly rests, it would be beside the purpose of the present work to enter. It is sufficient to say here that, in the spirit of Pitt's great financial reform of 1787, he revised the whole of the import duties of our commercial tariff, especially reducing the duties on raw material;[261] making up the deficiency so caused by an income tax, which he described as a temporary imposition, since he doubted not that the great increase of lawful trade, which would be the consequence of the reduction of duties, would soon enable the revenue to dispense with a tax to the objections of which he was not blind. In recommending this great change to the House, he laid down as the soundest maxim of financial legislation, in which "all were now agreed, the principle that we should buy in the cheapest market and sell in the dearest," a doctrine which, when more fully carried out, as it was sure to be, led almost inevitably to the great measure for which his administration is most celebrated, the repeal of the Corn-laws. There could be no doubt that, in the most modified application of it, it struck at the root of the principle of protection, which had hitherto been the fundamental principle of our finance, and made a farther extension of it inevitable. And, as he had been one of the leading members of the ministry which carried Catholic Emancipation, so he now proceeded on the same path of religious toleration; and, in the session of 1844, successfully recommended to the House of Commons a bill which had already been passed by the Lords, repealing a number of penal acts affecting the Roman Catholics, which, though they had long been practically obsolete, still encumbered, and it may be said disgraced, the statute book, and were, so to say, a standing degradation of and insult to the Roman Catholic body. One of them, passed in the reign of William and Mary, still forbade any Roman Catholic to come within ten miles of London, to have either sword or pistol in his house, or to possess a horse worth more than five pounds. Another, enacted under Elizabeth, still made every Roman Catholic who omitted to take certain oaths guilty of high-treason, though no attempt to administer those oaths had been made since the Revolution. Another, of the time of Charles I., deprived any Roman Catholic who should send his son to a foreign school of all protection of the law; he could neither sue nor defend an action. It may fairly be said that the credit of Parliament and of the nation was concerned in the abrogation of laws so ridiculously oppressive, and not the less obnoxious for being practically invalid. And in the same spirit another measure was framed and carried by the Lord Chancellor, whose object was the confirmation of religious endowments belonging to different sects of Protestant Dissenters, and their protection from vexatious and unjust litigation, by making a continued possession of any kind of endowment or property for twenty years a valid title. These enactments may be regarded as indispensable supplements to the repeal of the Test Act and Catholic Emancipation. They were the coping-stone of the great edifice of religious toleration, of which the former acts had laid the foundation. And the next year Peel carried out still farther the same principle, by a measure which could not fail to be regarded as an especial boon in Ireland, since the great majority of the population of that kingdom were of the Roman Catholic persuasion. It has been seen that when the troubled state into which the Continent was thrown by the French Revolution threw hinderances in the way of the Irish students designed for the Roman Catholic priesthood going to one of the great Continental colleges, such as St. Omer or Salamanca, for their education, Pitt established for them a college at Maynooth, for the endowment of which Parliament was annually asked for a grant of about £9000. The sum had long been felt to be altogether inadequate to the requirements of the foundation. As early as the year 1807, Lord Liverpool, then Home-secretary, had contemplated a large increase of the grant, though the weakness of the government, then presided over by the Duke of Portland, prevented him from carrying out that and other measures which he had conceived in a kindred spirit. Moreover, the grant was rarely proposed without giving rise to a warm debate raised by a party whose too tender consciences forbade them to sanction any measure appearing to foster a religion from which they dissented. And to remedy the two evils (the one arising from the want of a sufficient provision, the other from the spirit of religious controversy, for which the House of Commons was certainly very ill-calculated), Peel, in 1845, proposed to treble the grant, so as to put the college on a more satisfactory footing, by providing sufficient incomes for the professors, and a revenue adequate to the respectable maintenance of an increased number of pupils; and also to place the charge for the future on the Consolidated Fund, by which step its yearly discussion in Parliament would be altogether avoided. The measure was vigorously resisted, partly on the religious ground already mentioned, and partly by an argument, urged with some plausibility, that the design with which the college had originally been founded had not been realized; that, in fact, it had not proved a benefit to the country, but rather the reverse, by tempting into the service of the Roman Catholic Church a humbler and poorer class of students than could devote themselves to it when the preliminary education involved the expense of a protracted residence in a foreign country. But the obvious advantages of the change prevailed over these considerations, and the bill was carried by large majorities.[262] And now that the long cessation of controversy on the subject--which, indeed, has been not the least beneficial fruit of this bill of 1845--permits a candid consideration of it in all its bearings, it will probably be thought that Parliament had not often come to a wiser decision, one more dictated by judicious liberality of sentiment, and more imperatively required on every ground of statesman-like policy. If the countervailing objections and advantages be calmly weighed, it may almost be said that there was no alternative between enlarging the endowment and putting it on a new footing, or suppressing the college altogether. In its existing condition it was notoriously inadequate to fulfil the design of its founder; and any establishment visibly inadequate to its design tends to bring the design itself into some degree of contempt. Yet even if it should be granted that there might have been no fair ground of complaint if the college had never been founded, to close it after its benefits, however scanty, had been enjoyed for half a century, could not fail to have been regarded as an unpardonable injustice and injury. The other alternative, therefore, was practically the only one that remained; and in embracing it Peel was but carrying out the original principle on which the college was founded. It had been intended to be efficient; through lack of means it had proved inefficient. The obvious and just remedy was to supply such increased means as to create or bestow the efficiency originally aimed at. And it was a felicitous idea to place the charge for the future on such a footing as to combine with such an increase an avoidance of the irritation which its yearly discussion had never failed to excite. And at the same time, to carry still farther the principle of religious toleration, or rather of religious equality, he induced the Parliament to found a new university, consisting of three colleges, one in each of the three provinces of Ulster, Munster and Connaught (Leinster, as having Trinity College and Maynooth, being regarded as already sufficiently provided with university education), which should be open to students of every religious denomination, and at which, while every kind of secular education, both literary and scientific, should be given, the stirring up of religious controversy and animosity should be guarded against, by the absence of any theological professorships. He did not, indeed, design that the still greater benefits of religious education should be withheld from the pupils, but he proposed to provide for that object by confiding their religious education to the care of the clergy of each persuasion, some of whom in each town which was the seat of a college--Belfast, Cork, and Galway--might be trusted for willingness to superintend it. It was hoped that one fruit of this scheme, and that by no means its least valuable result, would be that the association of pupils of various creeds in their studies and amusements from an early age would lead them to maintain, in their more mature years, the harmony of which the foundation had thus been laid in their youth; and that thus the religious animosities which were the principal obstacle to the prosperity of the country would be softened, and in time extinguished. And this object has been achieved to a great extent, though the disfavor with which the Roman Catholic Church regards any educational system which is not under the superintendence of its priesthood has prevented the scheme from attaining the full development which was hoped for. The number of students of each of the principal sects--the Church of Ireland, the Roman Catholics, and the Presbyterians--steadily increases.[263] Members of each religious body are among the professors in each college, and all accounts represent the most perfect harmony and cordiality as existing throughout the whole body. Yet, important as was the principle contained in these measures, none of them, perhaps, caused such excitement at the moment as an exercise by the government of what was, in point of fact, one of its most ancient, as well as most essential, powers: the occasional opening of letters which passed through the post, in compliance with a warrant of the Secretary of State. England had at all times been the refuge of those unquiet spirits who, in pursuit of their schemes of rebellion and revolution, had incurred the displeasure of their own governments, and had too easily found accomplices here. And in the course of the summer some notorious offenders of this class found a member of the House of Commons to present a petition, in which they complained that some letters which they had posted had been stopped and opened by the officers of the Post-office. The member who presented the petition appears to have fancied it an unprecedented and wholly unlawful exercise of authority; but Sir James Graham, the Home-secretary, not only at once avowed that the statement was true, and that he had issued his warrant for the opening of the letters mentioned, but also showed that the power to issue such an order was reserved to the Secretary of State in all the statutes which regulated the proceedings of the Post-office. The clause in the act which conferred the power had been originally framed by Lord Somers, a statesman certainly as little open as any of his time to the suspicion of desiring to encroach on the rightful liberty of the subject; and it had been exercised from time to time in every reign since the Revolution. It was a power intrusted to the Secretaries of State for the public safety, and exercised by them on their own responsibility. The practice and its justification were assailed in both Houses of Parliament by members of the extreme Liberal party; but, though no distinct motion on the subject was made, the general feeling of both Houses was plainly evinced, that it was a power which might at times be highly useful for the prevention of crime, or for the hinderance of conspiracies which might be dangerous to the general welfare and tranquillity, and that the constitutional responsibility attaching to every minister for every official act was a sufficient security against its being improperly used.[264] And it will, probably, be generally admitted that this was the statesman-like view of the subject. There is no doubt that the practice in question does infringe the great constitutional right of every individual in these kingdoms to absolute freedom of communication with his friends. But the most important and the most cherished constitutional rights must possess something of elasticity. It must be necessary at times to go back to the original object for which those rights have been conferred and secured. That original object is the safety and welfare of the whole body corporate--of the entire nation. And if that safety and welfare at times require the sacrifice, a wise ruler will not hesitate to demand it of the people, or to impose it on them for their own good. So another principle of the constitution is the absolute freedom of action for all the subjects of the sovereign; yet that principle is infringed by more than one statute: Factory Acts, which limit the hours of even voluntary labor; Education Acts, which compel the parent to a certain line of conduct toward his children; each in their way substitute another rule for that entire freedom of action which, as has been said before, is the fundamental principle of the constitution; but they make the substitution on the reasonable ground that the course of action which they compel is for the benefit, not only of the individual constrained, but of the whole community of which he is a member, and for whose welfare all laws and constitutions exist. One of the grounds of complaint against the exercise of this power, which had been alleged by some of the opponents of the government, had been that Sir James Graham's conduct had been dictated by an unworthy subservience to some of the despotic sovereigns of the Continent. The fact was indignantly denied in the House of Lords by the Duke of Wellington; and in the course of the session a remarkable proof was afforded how little influence such motives had on the decisions of our government, when they acquiesced in the passing of a bill which was a virtual repeal of the Alien Act, which had existed for more than half a century, and of which more than one Continental sovereign would certainly have desired the retention. Of late, indeed, it had been so modified, that practically it had become little more than a dead letter; and now, in 1844, without being formally repealed, it was virtually abrogated by an act which enabled all foreigners to obtain letters of naturalization, which conferred on them every right of British subjects, except those of becoming members of Parliament,[265] or of the Privy Council. Generally speaking, few governments had enjoyed more of the confidence of the nation than Peel's did in 1844; yet in this year it was exposed to two remarkable mortifications. The charter of the East India Company, as framed by Pitt in subsequent events, which has led to the entire extinction of the political power of the Company, makes anything beyond this brief mention of the transaction superfluous at the present time. The other mortification of the ministry to which allusion has been made fell upon it at home in the Parliamentary discussion of the Prime-minister's financial measures, on which his judgment was usually regarded as pre-eminent, and on which a large majority of the House was generally disposed implicitly to follow his guidance. Sir Robert was not, indeed, himself Chancellor of the Exchequer, that office being filled by Mr. Goulburn, but it was certain that the Budget was inspired by a deference to the Prime-minister's views. And, among the arrangements which it proposed, one consisted of a relaxation of the sugar-duties, which was regarded with dread by those interested in the West Indies, as a farther step in the direction of free-trade, and as depriving them of the modified protection which they were as yet enjoying. To preserve that protection to them, Mr. Miles, the member for Bristol, proposed an amendment which, after an animated debate, was carried by a majority of twenty. Three months before, on the Factory Bill and the question whether the hours of labor should be limited to ten or to twelve, the minister had also found himself defeated, though by a much smaller majority; but in that case the defeat had been the less pronounced from the inconsistency of the votes on the different limits.[266] And he extricated himself from that difficulty by abandoning the bill altogether, and introducing a new one, not without angry resistance on the part of Lord John Russell and other members of the Opposition. They denounced such a manoeuvre as alike unconstitutional and unparliamentary; while he, on the contrary, insisted that the House had always jealously retained the right of reconsidering its own decisions. In that instance, however, the introduction of a new bill might have been regarded as the simplest mode of harmonizing the variety of views which had been represented by the discussion of and votes on the ministerial proposal and the amendments; but no such expedient was practicable in this case, that of the sugar-duties. A defeat on an important clause in the Budget by a majority of twenty was a far more serious matter; it was such a blow as had generally been reckoned sufficient to require a resignation of a ministry. But on this occasion Peel did not feel himself called on to take that step; nor was he inclined to dissolve Parliament, which some regarded as his only legitimate alternative, though he had little doubt that, if he did so, he should be supported by the confidence of the country. After careful reflection, the course on which he eventually decided was to adhere to the principle of a relaxation of duties, but to consent to a moderate variation from his original proposal as to the amount. And in pursuit of this plan, on the next discussion of the Budget, he proposed an amendment to that effect, making the adoption of it by the House a test of its confidence in the administration. Lord John Russell opposed the amendment with great vehemence, pronouncing the acceptance of it, if it should be accepted, and the House should thus consent "to retract its previous vote, a lamentable proof of subserviency, which would disgrace it with the country." What Sir Robert now asked was, substantially, that they should now declare that to be expedient which they had declared to be inexpedient only three nights ago; and Lord Palmerston insisted that the proper course to be taken by the government was to resign; while Mr. Labouchere, who had also been a member of Lord Melbourne's cabinet,[267] though he admitted that there might be "circumstances under which a minister might without impropriety ask the House to reconsider a vote," denied that the present was such a case, and especially denounced the importation of the question of confidence or no confidence in the ministry into the discussion as "dangerous and unconstitutional." Another section of the Opposition agreed in taking the same line; Mr. Disraeli (then beginning to lay the foundations of his reputation and influence) strongly denouncing the conduct of the minister, as degrading both to his own supporters and still more to the whole House, and recommending him to say frankly to both, "We have gauged your independence, and you may have a semblance of parliamentary freedom as far as this point, but the moment you go farther, you must either submit to public disgrace, or we must submit to private life." The end of the discussion was, that the minister prevailed by a majority a trifle larger than that which had defeated him before. This is not the place to discuss the difference between one principle of taxation and another; but the question whether a minister when defeated is justified in asking either House of Parliament to reconsider its vote, seems one that could only have been raised in a House under the influence of unusual excitement of some kind. The charge that such a request was unconstitutional only serves to show how loosely the words "constitution" and "unconstitutional" are often used even by those from whom precision of language might most be expected; for Sir Robert Peel's proposal that the House should retract its vote was not unprecedented, the very same demand having been made in 1833 by Lord Althorp, then Chancellor of the Exchequer of Lord Grey's ministry, of which those very men were members who were now loudest in denouncing the conduct of the present government. And on that occasion it is worth remarking that, though Lord Althorp's demand was resisted in one or two quarters, he was vigorously supported by Sir Robert Peel, on the ground that, though to rescind one night a vote passed on a former one might be not altogether free from objection, it would be a far greater evil that questions of importance should be held to be in all cases finally decided by a single vote, passed, it might be, in a thin House, or in obedience to some sudden impulse. And this seems to be the view of the case commended not only by constitutional and parliamentary practice, but by common-sense. It would be strange, indeed, when the questions submitted to the British Parliament and the decisions of that Parliament on them are so often of paramount importance to the whole world, if the Parliament should be the only body in the world denied the right of revising its own judgments, the only one whose first resolution is so irrevocable that even itself may not change or modify it. To rescind a recent vote is, no doubt, as Sir Robert Peel said, a step not wholly free from objection. It should be an exceptional act, as one which, if often repeated, would give an appearance of capricious fickleness and instability to the opinions of Parliament, calculated to impair that respect for it which the whole state and nation are deeply concerned in upholding; but to refuse, under any circumstances, to confess a change of judgment, would lay the Parliament open to an imputation at least equally dangerous to that respect--that of an obstinacy which refuses to confess the possibility of being mistaken, or to hear reason. It would not be well, therefore, that the abrogation of a previous vote should become an ordinary practice; but it would be equally undesirable that any fixed or unchangeable rule should be interposed to prevent a second discussion of an important question, with the possibility of its leading to a reversal of the opinion first expressed. In the same year (1844) the ministers felt compelled to raise a constitutional point of singular refinement, which had the effect of arresting the progress of a bill, in which one part of the kingdom took a lively interest, which a division in its favor proved to be fully shared by the House of Lords.[268] It has been already mentioned that in the last year of the preceding reign a bill had passed for creating, when opportunity offered by the sees affected becoming vacant, two new bishoprics at Ripon and Manchester, the incomes of which were to be provided by the union of some of the smaller existing bishoprics, Gloucester with Bristol, St. Asaph with Bangor. But the Welsh regarded with great disapproval any reduction of the number of bishoprics in the principality, and Lord Powis now brought in a bill to repeal so much of the act as provided for the union of two Welsh sees, urging not only their great extent, which he stated at 3000 square miles of very mountainous country, but the fact that the population of North Wales was steadily and largely increasing. The bill, as has been intimated, was favorably received by the Lords, who passed the second reading by a majority of twelve; but, before it could be read a third time, the Duke of Wellington, as leader of the ministry in that House, announced that the bill was one which touched the prerogative of the crown, and therefore could not be proceeded with without the consent of her Majesty, which he was not authorized to express. As the matter was explained by the Chancellor, Lord Lyndhurst, the manner in which the bill touched the royal prerogative was this: as, during the vacancy of any see, its temporalities belonged to the crown, any alterations in a see affected the direct pecuniary interests of the crown, and he, as Speaker of the House, doubted whether he should be justified in putting a question which so touched the royal prerogative without the sovereign's consent. A committee which was appointed to investigate the case fully confirmed the view thus taken by the ministers, and the bill was dropped. It was, however, an exercise of the royal prerogative which was received by the House in general with great dissatisfaction. Certainly, since the Civil List and royal income had been placed on their present footing, it was only by a very forced construction that the pecuniary interests of the sovereign could be said to be affected. And it seemed a very insufficient plea for evoking the exercise of a power which, as it was said, had certainly never been exerted before since the accession of the Hanoverian dynasty. Nor was it made more acceptable by the explanation of Lord Brougham, who on this occasion came to the support of the minister, that the refusal of the crown's consent at this stage was "a warning, as it were, a polite and courteous communication between the sovereign, as guardian of the privileges of the crown, and the two Houses of Parliament, that if they passed a certain bill it would not receive the royal assent;" for, though the right to refuse the royal assent to any bill was incontestable, it had not been exercised since the time of William III., and to put it in force for the protection of an imaginary interest of the crown itself would have been so unpopular an exercise of it that no administration could have ventured to advise it. One of the arguments which the Duke of Wellington brought forward in the discussion, and which, probably, contributed to induce him thus to strangle Lord Powis's bill, has had an influence on subsequent legislation. He urged that its adoption--since the resolution to establish bishoprics at Manchester and Ripon was one which every one desired to carry out--would increase the number of bishops, "and thus make an organic change in the constitution of the House of Lords." It is not very clear how the addition of a single spiritual peer could have that effect. But the Duke had dwelt upon the same argument before in the debate on the proposed union of the sees affected, urging that there was such a jealousy of the Church in many quarters, and especially in some of the large towns, that it would be very undesirable to pass any measure the effect of which would be to increase the number of Episcopal peers. Even if there was any general reluctance at that time to see such an increase (a fact which was by no means ascertained), it may be doubted whether it was founded on any sufficient reason. It is not easy to see why, when there is no limit to the augmentation of the number of lay peers, it should be judged impolitic or unjust to make even so small an addition to the number of spiritual peers. At the Restoration the spiritual peers were, probably, more than a fifth of the entire House. From the great number of subsequent creations of lay peers they were now less than a sixteenth, so that there could be no ground for apprehending that a slight re-enforcement of the Episcopal bench would disturb the balance, or give the Church an undue preponderating weight in the decisions of the House. The difficulty, however, such as it appeared to the Duke then, has had such weight with subsequent administrations, that a new principle has been established of creating bishoprics which shall not at first confer seats in the Upper House till their holders become entitled to them by seniority. As they are peers from the moment of their consecration, it may be doubted whether this creation of peers, without seats in Parliament, does not deserve the name of "an organic change in the constitution," far more than the addition of one or two ecclesiastical peers to the Episcopal bench; and also whether it has not established a dangerous principle and precedent; the disconnection of bishoprics from seats in Parliament, in even a single instance, seeming to furnish an argument in favor of the exclusion of the whole order, a measure which, if unjust and injurious to the Church, would be at least equally injurious to Parliament itself, and to the whole state. But all questions of this kind were presently lost sight of in the excitement produced by the measure which more than any other has stamped Sir Robert Peel's administration with a lasting character, the repeal of the Corn-laws. Many statesmen, even of those who were most in favor of free-trade in other articles of commerce, made an exception in the case of corn, partly from a feeling of the necessity of encouraging agriculture, and partly from a conviction of the danger of in any way contributing to create or increase a dependence on foreign countries for the food of the people. Both Whigs and Tories were generally thus agreed on the necessity of maintaining the principle of protection; the dispute between the two parties being whether it were best achieved by a fixed duty on imported corn, or by what was commonly known as a sliding scale: a scale, that is, which varied inversely with the price of the grain itself, rising as the price in the home market fell, and falling as it rose. In the manufacturing districts a different feeling had prevailed for some years. In the first years of the present reign severe distress in Manchester and others of the chief manufacturing towns had led to the formation of an association whose chief object was sufficiently indicated by its title of the Anti-Corn-law League. At first Mr. Villiers, the member for Wolverhampton, was its principal spokesman in the House of Commons, but at subsequent elections two manufacturers of great eloquence obtained seats, and year after year urged the entire repeal of all duties on corn with great earnestness, though for some time their arguments made but little impression on the House. Their motions were rejected in 1842 by a majority of 300; in 1843 by one exceeding 250; in 1844 by above 200; and in 1845 by one of more than 130 in a much smaller House. But this last division had scarcely been taken when an unprecedented calamity--the almost entire failure of the potato crop, which was attacked in nearly every part of both islands by a new disease, the cause of which is not to this day fully ascertained-- suddenly changed the aspect of the subject. To the English farmer and laborer it was a severe loss; to the Irish farmer it was ruin; to the Irish peasant famine. The grain harvest, too, was generally deficient. And it was evident that rigorous measures, promptly taken, were indispensable, if a large portion of the peasantry in the southern and western provinces of Ireland were not to be left to perish of actual starvation. In the face of so terrible an emergency Peel acted with great decision. On his own responsibility he authorized the purchase of a large supply of Indian corn from the United States, hoping, among other indirect effects of such a step, to accustom the Irish to the use of other kinds of food besides the root on which hitherto they had too exclusively relied.[269] And he laid before his colleagues in the cabinet a proposal to suspend the existing Corn-law "for a limited period," a measure which all saw must lead to its eventual repeal. It would be superfluous now to recapitulate the discussions which took place, the various alternative proposals which were suggested, or the dissensions in the cabinet to which his proposal gave birth; the resignation of the ministry, and its subsequent resumption of office, when Lord Stanley and Lord John Russell had found it impossible to form an administration. It is sufficient to say that, as soon as Parliament met, Sir Robert brought forward a bill to reduce the duty on corn to four shillings, a price only half of the lowest fixed duty that had ever been proposed before, that reduction, too, being a stepping-stone to the abolition of all duties, at the end of three years, beyond a shilling a quarter, which was to be retained, in order to acquire an accurate knowledge of the quantity of grain imported. The diminution, however, of this duty was not the whole object of his new measure. It included other arrangements which would serve as a compensation to the agriculturists, by relieving them from some of the peculiar burdens to which the land was subjected; and it contained, farther, a reduction or abolition of import duties hitherto levied on many other articles, especially on such as "formed the clothing of the country," on the fair ground that if the removal of protection from the agriculturist were "a sacrifice for the common good," the commercial and manufacturing interests might justly be required to make a similar sacrifice for the same patriotic object. Though opposed in both Houses with unusual bitterness, the ministry carried their measure, which, indeed, in all probability, even if the destruction of the potato crop had not come to accelerate the movement, could not have been long delayed, the continual and rapid increase of the population adding yearly strength to the arguments of those who denounced the imposition of any tax which had the effect of increasing the price of the people's food. But, however inevitable it may have been, we are not the less compelled to regard it as indirectly bringing about a great constitutional change, or rather as consummating that which had been commenced by the Reform Bill. Till the year 1832 the territorial aristocracy had exerted a predominating influence in the government of the state. The Reform Bill, which deprived the wealthier land-owners of the greater part of their power at elections, struck the first blow at that influence. The abolition of the Corn-laws inflicted on it a still more decisive wound, by its extinction of the doctrine that there was any such peculiar sacredness about the land and its produce as entitled them to protection beyond that enjoyed by other kinds of property. Placing in that respect the commercial and manufacturing interest on a level with the landed interest, it made us, in a farther and a somewhat different sense from that in which Napoleon had used the phrase, a nation of shopkeepers.[270] The repeal of the Corn-laws had another result: it divided the Conservative party, and, as a necessary consequence, led to the downfall of the ministry. The same session which witnessed its success in carrying that repeal witnessed also its defeat on a coercion bill, which they regarded as indispensable for the "protection of life in Ireland," where actual murders had reached the appalling amount of nearly three hundred in two years. The ministry at once resigned, and Lord John Russell had no difficulty in forming an administration, now that the question of the Corn-laws was finally settled. It was, however, no bed of roses to which the new ministry succeeded; the famine in Ireland exceeded the worst anticipations; and, though prodigious efforts were made by the government and Parliament to relieve it, though large sums were placed at the disposal of the Lord-lieutenant, aided by contributions from private sources in England to an enormous amount; though the small remnant of the import duty on corn which had been left on it by the measure of the preceding year was taken off, and the navigation laws suspended, in order that no obstacle interposed to the acquisition of food from every available quarter, it was estimated that more than half a million of people perished through actual famine or the diseases which scarcity brought in its train.[271] A severe monetary crisis was one not unnatural result of this distress, so severe that the Funds fell to a price below any that had been quoted for many years, and the reserve in the Bank of England to an amount lower than it had been at any period since 1828. And these difficulties had hardly been surmounted when a new revolution in France overturned the dynasty of Louis Philippe and established a republic. The revolutionary contagion spread to Italy, where, indeed, the movement had begun. The Pope--Pius IX.--who had but lately succeeded to the tiara, was forced to flee from Rome in the disguise of a foreign courier, after his Prime-minister had been murdered by the mob. Germany was scarcely less disturbed. The administration of Metternich, who had governed Austria with authority little less than absolute for nearly forty years, was overthrown in a tumult in which he himself escaped with difficulty from the violence of the populace; dangerous riots took place at Munich, at Berlin, and at the capitals of most of the smaller principalities, and for some time everything seemed to portend the outbreak of a general war, likely to be the more formidable as being a war of the revolutionary and republican against the monarchical principle. Happily, that danger was averted. The only war which broke out between different nations was a brief contest in the north of Italy, which the superior numbers of the Austrian armies and the skill of Marshal Radetsky, a veteran who had learned the art of war under Suvarof nearly sixty years before, decided in favor of Austria, and which in the spring of 1849 was terminated by a peace on less unfavorable terms to Sardinia than she could well have expected. And in the same season tranquillity was re-established even at Rome, which, from the peculiar character of the Papal power, contained special elements of provocation and danger. But, though peace was thus generally maintained, these various events had produced a ferment of spirits which required some time to calm down, and so greatly embarrassed the government, that in the spring of 1852 Lord John Russell's administration was dissolved, and a new ministry was formed by Lord Derby[272]. But the causes which had overthrown his predecessor remained to weaken him; so that for some time it seemed impossible to form a ministry which afforded any promise of stability. Such a rapid succession of changes as ensued had had no parallel since the first years of George III. Between February, 1852, and February, 1855, the country had no fewer than four different Prime-ministers, a fact which was at once both the proof and the parent of weakness in every administration. Lord John Russell had attempted to procure a factitious support in the country by stimulating a fresh demand for parliamentary reform. A year or two before, he had provoked the dissatisfaction of the "Advanced Liberals," as they called themselves, by insisting on the finality of the Reform Bill of 1832, and by advising his followers "to rest and be thankful" for what had been then obtained. But now he began to advance an opinion that that act required "some amendments to carry into more complete effect the principles on which it was founded." He inserted an intimation of that doctrine in the Queen's speech; and endeavored to give effect to it by bringing in a bill to lower the franchise, having, it seems, persuaded himself that a five-pound franchise would create a more Conservative class of voters.[273] He had scarcely introduced it when the fall of his ministry led to its abandonment; but, though it was coldly received by the House of Commons, the idea was taken up by the other political parties, who can hardly be acquitted of having used the question merely as an instrument of party warfare, trying, with an unstatesmanlike indifference to the danger of re-awakening the old frenzy on the subject, to rouse the nation to take an interest in it; but trying in vain. The nation was no longer in the same temper as it had displayed twenty years before. The Reform Bill of 1832 had been demanded and carried with a frantic vehemence of enthusiasm such as could only have been excited by real defects and grievances. But those grievances had been removed and redressed. And the bulk of the people could take no interest in schemes whose sole end seemed to be either to satisfy the theories of some political doctrinaires or to embarrass an adversary; till at last, as Reform Bill after Reform Bill was framed, brought in, and defeated, or dropped, it became plain, "as the Prince Consort noted in a private memorandum at the end of 1859, that what the country wanted, in fact, was not reform, but a bill to stop the question of Reform."[274] And, at last, the prevalence of this feeling Lord John Russell could not conceal even from himself, but confessed to Lord Palmerston, then Prime-minister, who had always silently discouraged the movement, that "the apathy of the country was undeniable; nor was it a transient humor. It seemed rather a confirmed habit of mind. Four Reform Bills had been introduced of late years by four different governments, and for not one of them had there been the least enthusiasm. The conclusion to which he had come was, that the advisers of the crown of all parties having offered to the country various measures of reform, and the country having shown itself indifferent to them all, the best course which could now be taken was to wait till the country should show a manifest desire for an amendment of the representation."[275] There was, however, in these years one subject in which the country did take a real interest; that was the development and extension of the principles of free-trade. On that the national view had become so decided that in 1848 the Parliament even abolished the navigation laws, which had subsisted so long, the first act on the subject dating from the reign of Richard II., that the adherence to the principle contained in them of confining both the export and the import trade of the kingdom, with but few exceptions, to British shipping, seemed almost an essential article of the constitution. It was the dearer, too, to the national prejudices, from the sense universally entertained of the paramount importance of maintaining the pre-eminence of our navy, and from the belief that the commercial marine was a nursery for the royal fleets, with which they could not dispense. But latterly the laws had become unpopular even with some of those who had formerly been supposed to derive the greatest benefit from them. Many of our colonies had complained of their operation, and several of the ablest of our colonial governors had recommended their repeal. They had been found, too, to present frequent and considerable difficulties in our commercial negotiations with other countries, and many naval officers of large experience and sound judgment expressed a decided belief that they were of no practical use to the naval service. The result of a long and able debate was that the laws were repealed, with the exception of that portion of them which preserved the monopoly of the coasting trade to our own seamen and vessels, that exception being chiefly dictated by considerations connected with the prevention of smuggling. The ground on which the ministers relied in proposing this repeal of laws so ancient was that, when protection had been removed from every other trade, those concerned in these different trades had an irresistible claim for its removal from the shipping. And on general principles, both of commerce and statesmanship, the claim was, as they urged, irresistible, unless some object of greater importance still than uniformity of legislation--namely, the national safety, bound up as it unquestionably was in the perpetual pre-eminence of the national navy--required an exception to be made. But for the maintenance of our maritime supremacy it was, as Burke had preached three-quarters of a century before, better to trust to the spirit of the people, to their attachment to their government, and to their innate aptitude for seamanship, which they seem to have inherited from the hardy rovers of the dark ages, and which no other nation shares with them in an equal degree. And if that may safely be trusted, as undoubtedly it may, to maintain the supremacy of our warlike fleets, the preponderance of argument seemed greatly on the side of those who contended that our commercial fleets needed no such protection; to which it may be added that exceptions to a general rule and principle are in themselves so questionable, that the burden of proof seems to lie upon those who would establish or maintain them. But the advocates of free-trade were not content even with this triumph, though it might have been thought a crowning one, and in the course of the next year they succeeded in carrying a resolution which (though Lord Derby and the opponents of the act of 1846 were now in office) was not resisted even by the ministry, being, in fact, the result of a compromise between the different parties; and which asserted that "the improved condition of the country, and especially of the industrious classes, was mainly the result of recent legislation, which had established the principle of unrestricted competition, ... and that it was the opinion of the House that this policy, firmly maintained and prudently extended, would, without inflicting injury on any important interest, best enable the industry of the country to bear its own burdens, and would thereby most surely promote the welfare and contentment of the people." Such a resolution was, in fact, the adoption of free-trade as the permanent ruling principle of all future commercial legislation. And even before the adoption of this resolution, the feeling in favor of free-trade had been greatly strengthened by the Great Exhibition, which not only delighted the world for six months with a spectacle of such varied and surpassing beauty as even its original projector, the Prince Consort, had not pictured to himself, but which had also the farther and more important effect of instructing the British workman in every branch of manufacture, by bringing before his eyes the workmanship of other nations; and, as we may well believe (though such a result is not so easily tested), of improving the mutual good-will between rival nations, from the respect for each which the experience of their skill and usefulness could not fail to excite. Notes: [Footnote 258: On the 20th of February, 1840, Baron Stockmar writes: "Melbourne told me that he had already expressed his opinion to the Prince that the Court ought to take advantage of the present movement to treat all parties, especially the Tories, in the spirit of a general amnesty." To the Queen his language was the same: "You should now hold out the olive-branch a little."--_Life of the Prince Consort_, i., 83.] [Footnote 259: He became Prime-minister in September, 1841, and retired in June, 1846--four years and three-quarters afterward.] [Footnote 260: "Life of the Prince Consort," i., 266. It may be remarked that, in spite of the opinion thus expressed by Sir Robert Peel, of those who, since his retirement in 1846, have held the same office, the majority have been members of the House of Commons. The peers who have since been Prime-ministers have been Lord Aberdeen and Lord Derby; the members of the House of Commons have been Lord John Russell, Lord Palmerston, Mr. Disraeli, and Mr. Gladstone; though it may be thought that in his second ministry Mr. Disraeli showed his concurrence in Sir Robert Peel's latest view, by becoming a peer in the third year of his administration.] [Footnote 261: Lord Stanhope tells us "the remedial resolutions moved by Pitt in the House of Commons, as abolishing the old duties and substituting new ones in a simpler form, amounted in number to no less than 2537."--_Life of Pitt_, i., 330. Peel, in his speech, March 21, 1842, states that he reduces or takes off altogether (wherever the duty is trifling, but is practicable) the duty on 750 articles of import.] [Footnote 262: In the Commons by 307 to 184; in the Lords by 226 to 69.] [Footnote 263: The following statements of the members of colleges and of the three denominations for 1879, 1874, and 1869 appear in the last _Queen's University Calendar_: 1879. 1874. 1869. Church of Ireland ....... 201 189 211 Roman Catholics ....... 223 188 161 Presbyterians .......... 388 249 227 Other denominations...... 88 87 83 --- --- --- 900 713 682] [Footnote 264: In the course of the session, in order to tranquillize the public mind on the subject, secret committees were appointed by both Houses of Parliament to investigate the subject, from whose inquiries it appeared that, since the days when the government was endangered by the plots of the Jacobites, the power had been very sparingly used. The most conspicuous instance of its employment had been in the case of Bishop Atterbury, several of whose letters had been opened, and were produced in Parliament to justify the bill of "pains and penalties" which was passed against him. The power had been confined to Great Britain till the latter part of the last century, when it was judged desirable to extend it also to the Lord-lieutenant of Ireland. But, since the Peace of Amiens, the number of letters opened in a year had not, on an average, exceeded eight; nor was there the least ground for suspecting that a single one had been opened except on such information as fully warranted suspicion. The practice, however, was not confined to our own government. In the second volume of the "Life of Bishop Wilberforce" a page is given of his diary, dated July 18, 1854, which records a conversation in which the Duke of Newcastle and Lord John Russell took part, and in which it is mentioned that the French government, under the administration of M. Guizot, opened letters, and that the practice was not confined to monarchical or absolute governments, for "the American government opens most freely all letters." And, with reference to this particular case, the Duke of Newcastle said that "Sir James Graham really opened Mazzini's letters on information which led to a belief that a great act of violence and bloodshed might be prevented by it."--_Life of Bishop Wilberforce_, ii., 247.] [Footnote 265: A subsequent act, passed since the date at which the present history closes, has repealed even this exception. By the 33d Victoria, c. 14 ("Law Reports," p. 169), it is enacted that "an alien, to whom a certificate of naturalization is granted, shall in the United Kingdom be entitled to all political and other rights, powers, and privileges, and be subject to all obligations to which a natural born British subject is entitled as subject in the United Kingdom," etc.; and at the general election of 1880 the Baron de Ferrieres, a Belgian nobleman, who had been naturalized in 1867, was elected M.P. for Cheltenham.] [Footnote 266: In one instance--on the question whether twelve should be the number of hours, as proposed by the Government--the majority against that number was 186 to 183. But immediately afterward a majority of 188 to 184 decided against Lord Ashley's alternative proposal of ten hours.] [Footnote 267: As President of the Board of Trade. He afterward was raised to the Peerage as Lord Taunton.] [Footnote 268: The second reading was carried in the House of Lords by 49 to 37.] [Footnote 269: See "Peel's Memoirs," ii., 173.] [Footnote 270: It has been observed that till the Corn-laws were repealed there had been no instance whatever of any person who had been engaged in trade becoming a cabinet minister. Since that time there have been several, some of whom only relinquished their share in houses of business on receiving their appointments, and some who are generally understood to have continued to participate in the profits of trade while members of an administration.] [Footnote 271: Alison, quoting the General Report of the Census Commissioners, estimates the deaths caused by famine and the diseases engendered by it at the appalling number of 590,000, and states the sums advanced under different acts of Parliament to meet the emergency at £7,132,268.--_History of Europe_, vii., 274, 276, 2d series.] [Footnote 272: The same statesman who has previously been mentioned as Lord Stanley, and whom the death of his father had recently raised to the House of Peers.] [Footnote 273: In 1853 he said to Lord Clarendon, speaking of a new bill which he was pressing on Lord Aberdeen, then Prime-minister, "I am for making it as Conservative as possible, and that by a large extension of the suffrage. The Radicals are the ten-pound holders. The five-pound holders will be Conservative, as they are more easily acted upon."--_Life of the Prince Consort_, ii., 503. It was the same idea that inspired some of the details of the Reform Bill subsequently passed by Lord Derby's third ministry.] [Footnote 274: "Life of the Prince Consort," iv., 395.] [Footnote 275: "Life of the Prince Consort," v., 56.] CHAPTER XIII. Dismissal of Lord Palmerston.--Theory of the Relation between the Sovereign and the Cabinet.--Correspondence of the Sovereign with French Princes.--Russian War.--Abolition of the Tax on Newspapers.--Life Peerages.--Resignation of two Bishops.--Indian Mutiny.--Abolition of the Sovereign Power of the Company.--Visit of the Prince of Wales to India.--Conspiracy Bill.--Rise of the Volunteers.--National Fortifications.--The Lords Reject the Measure for the Repeal of the Paper-duties.--Lord Palmerston's Resolutions.--Character of the Changes during the last Century. The frequency of ministerial changes at this time has already been mentioned, and the first of them took place at the beginning of 1852, under circumstances which throw some light on a question which has never been exactly defined--the duty of the different members of a cabinet to one another, to the Prime-minister, and to the sovereign. Queen Victoria had a high idea of her duties and responsibilities. From any legal responsibility she was aware that she was exempt; but she did not the less consider that a moral responsibility rested on her not to be content to give her royal sanction as a mere matter of form to every scheme or measure which might be submitted to her, but to examine every case for herself, to form her own opinion, and, if it differed from that of her ministers, to lay her objections and views fairly before them, though prepared, as the constitution required, to act on their decision rather than on her own, if, in spite of her arguments, they adhered to their judgment. And in carrying out this notion of her duty she was singularly aided by the Prince, her husband, a man of perfectly upright character, of great general ability, and who, from the first moment of his married life, regulated his views of every question, domestic and foreign, by its bearing on English interests and English feelings, to which he early acclimatized himself with a remarkable readiness of appreciation. In the administration of Lord John Russell, Lord Palmerston was Foreign Secretary, and during its latter years foreign affairs occupied more of the attention of the country than matters of domestic policy. The revolution of 1848, which overthrew the Orleans dynasty, had produced in France a state of affairs but little removed from anarchy, which was scarcely mitigated by the election of Prince Louis Napoleon to the Presidency of the new republic for four years, so constant was the opposition which the Republican party in the Assembly offered to every part of his policy. They even carried their opposition so far as to form a deliberate plan for the impeachment of his minister and himself, and for his arrest and imprisonment at Vincennes. But he was well-informed of all these dangers, and on the morning of the 2d of December, 1851 (the day, as was commonly believed, having been selected by him as being the anniversary of his uncle's great victory of Austerlitz), he anticipated them by the arrest of all the leading malcontents in their beds; which he followed up by an appeal to the people to adopt a new constitution which he set before them, the chief article of which was the appointment of a President for ten years. No one could avoid seeing that what was aimed at was the re-establishment of the Empire in his own person. And so arbitrary a deed, as was inevitable, produced great excitement in England and anxious deliberations in the cabinet. Their decision, in strict uniformity with the principle that rules our conduct toward foreign nations, was to instruct our ambassador in Paris, Lord Normanby, to avoid any act or word which could wear the appearance of an act of interference of any kind in the internal affairs of France. But, on Lord Normanby reporting these instructions to the French Foreign Secretary, M. Guizot, he learned, to his surprise and perplexity, that Lord Palmerston had interfered already by expressing to the French ambassador in London, M. de Walewski, his warm approval of the President's conduct;[276] and Lord Normanby, greatly annoyed at being directed to hold one language in Paris, while the head of his department was taking a widely different tone in Downing Street--a complication which inevitably "subjected him to misrepresentation and suspicion"--naturally complained to the Prime-minister of being placed in so embarrassing a situation. Both the Queen and the Prime-minister had for some time been discontented at the independent manner in which Lord Palmerston apparently considered himself entitled to transact the business of his department, carrying it so far as even to claim a right to send out despatches without giving them any intimation of either their contents or their objects. And the Queen, in consequence, above a year before,[277] had drawn up a memorandum, in which she expressed with great distinctness her desire to have every step which the Foreign Secretary might recommend to be taken laid clearly before her, with sufficient time for consideration, "that she might know distinctly to what she had given her royal sanction;" and "to be kept informed of what passed between him and the Foreign Ministers before important decisions are taken," etc., etc. And, after such an intimation of her wish, she not unnaturally felt great annoyance at learning that in a transaction so important as this coup d'etat (to give it the name by which from the first it was described in every country) Lord Palmerston had taken upon himself to hold language to the French Ambassador "in complete contradiction to the line of strict neutrality and passiveness which she had expressed her desire to see followed with regard to the late convulsions at Paris, and which was approved by the cabinet."[278] The Prime-minister seems to have taken the same view of the act, and remonstrated with Lord Palmerston, who treated the matter very lightly, and justified his right to hold such a conversation, which he characterized as "unofficial," in such a tone and on such grounds that Lord John considered he left him no alternative "but to advise the Queen to place the Foreign Office in other hands." A careful and generally impartial political critic has recently expressed an opinion "that Lord Palmerston made good his case;"[279] but his argument on the transaction seems to overlook the most material point in it. Lord Palmerston's own defence of his conduct was, that "his conversation with Walewski was of an unofficial description; that he had said nothing to him which would in any degree or way fetter the action of the government; and that, if it was to be held that a Secretary of State could never express any opinion to a foreign minister on passing events except as the organ of a previously consulted cabinet, there would be an end of that easy and familiar intercourse which tends essentially to promote good understanding between ministers and government;" and he even added, as a personal justification of himself as against the Prime-minister, that three days afterward Lord John Russell himself, Lord Lansdowne (the President of the Council), and Sir Charles Wood (the Chancellor of the Exchequer) had all discussed the transaction with M. de Walewski at a dinner-party, "and their opinions were, if anything, rather more strongly favorable than his had been." This personal aspect of the case it is impossible to discuss, since there are no means of knowing whether the ministers mentioned would have admitted the correctness of this report of their language. If it were confessed to be accurate, it would only show them to have been guilty of equal impropriety, and to a great extent justify him as against the Prime-minister, whose condemnation of his language, if he were conscious that he had held the same himself, would be inexplicable. But it certainly does not justify him in respect of her Majesty or the cabinet collectively, since the Queen's complaint was, not that he held unofficial conversations as a private individual, and not as "the organ of a previously consulted cabinet," but that the tenor of the conversation which he had held was in direct contradiction to the tone which the cabinet had decided should be taken on the subject; that his language was calculated to draw the government into a course of action which it had been deliberately resolved to avoid. And, in spite of the deference due to Lord Palmerston's great experience, it is hard to see how a conversation between our Foreign Secretary and the French Ambassador on an action, the result of which is as yet undecided, can be wholly unofficial, in the sense of having no influence on the conduct of affairs, or, as he expressed it, "in no degree or way fettering the action of the government." The result was, as has been mentioned before, that the Prime-minister recommended the removal of Lord Palmerston from his office, and that he was removed accordingly. And this conclusion of the case seems to show that the statement of the position of the Prime-minister in the cabinet is rather understated by Mr. Gladstone in one of his essays,[280] where he says: "The head of the British government is not a Grand Vizier. He has no powers, properly so called, over his colleagues; on the rare occasions when a cabinet determines its course by the votes of its members, his vote only counts as one of theirs." He admits at the same time that "they are appointed and dismissed by the sovereign on his advice." And surely to have the right of giving this advice is to have the greatest possible power over his colleagues; not power, perhaps, to change their opinions (though it possibly at times has had power to prevent the expression of them), but power to compass their immediate removal from the administration, as was exercised in this instance, and as had been exercised by Pitt with regard to Lord Thurlow. That a difference of opinion, even on an important subject, is not always regarded as a sufficient cause for such a dismissal; that a Prime-minister, especially if conscious of his strength, occasionally consents to retain colleagues who differ from him on some one subject, the same work to which we are partly indebted for our knowledge of the details of this affair--the "Life of the Prince Consort"--furnishes two remarkable instances in which the Prime-minister, then Lord Palmerston himself, submitted to be overruled. We read there that on one occasion, when "Count Persigny sought the active intervention of England by the way of 'moral support' to a demand" which France proposed to address to Austria, "Lord Palmerston and Lord John Russell (then Foreign Secretary) were disposed to accede; but a different view was taken both by her Majesty and by the cabinet, and Count Persigny's request was accordingly declined."[281] On this occasion, it is true, he was yielding to an overwhelming majority of his colleagues (her Majesty's approval must, of course, have been expressed subsequently to their decision). But in another instance we find the same Prime-minister consenting to the introduction of a bill by one of his colleagues, Mr. Gladstone, then Chancellor of the Exchequer, of which he disapproved so highly that, after it had been passed by a very slender majority of the House of Commons,[282] he expressed to the Queen a hope that the closeness of the division "might encourage the House of Lords to throw out the bill when it should come to their House, and that he was bound in duty to say that, if they should do so, they would perform a good public service;" and after they had rejected it by a majority of eighty-nine, he pronounced that "they had done a right and useful thing," reporting to her Majesty, as a corroboration of this opinion, and as a proof that it was largely shared by the public out-of-doors, that "the people in the gallery of the House of Lords are said to have joined in the cheers which broke out when the numbers of the division were announced."[283] And on a third occasion also he bore with the same colleague's opposition to a measure which he and all the rest of the cabinet justly thought of vital importance to the best interests of the country, the fortification of our great seaports, allowing him to object for a time in private, and even to threaten public opposition to it the next year, since he felt assured that his opposition, if carried out, which he doubted, would be wholly ineffectual.[284] The personal interest in politics which this laudable habit of judging of everything for herself naturally engendered in the Queen's mind led, however, to the adoption by her Majesty, in more than one instance, of a course at variance not only with all historical precedent, but, with deference be it said, with constitutional principle, sanctioned though it was by more than one ministry. When the First Napoleon, after his elevation to the head of the French government as First Consul, proposed, by an autograph letter to George III., to treat with that sovereign for the conclusion of peace between the two nations, Pitt, to whom his Majesty communicated the letter, had no difficulty in deciding that it would be unseasonable for the King "to depart from the forms long established in Europe for transacting business with foreign states,"[285] and, under his guidance, the cabinet instructed Lord Grenville, as Foreign Secretary, to address the reply to the First Consul's letter to the French Foreign Secretary, M. de Talleyrand. But this reign has witnessed several departures from the old and convenient rule. Its violation was not begun by her Majesty, but by the Emperor Nicholas of Russia in the year preceding the Crimean war. He wrote to the Queen herself to discuss some of the points in dispute, and she answered his letter with her own hand.[286] The outbreak of war which soon ensued prevented any continuation of that correspondence; but the close alliance which that war for a time produced between England and France, strengthened as it was by an interchange of visits between the royal and imperial families, which led to the establishment of a strong mutual friendliness and regard, led also to an occasional interchange of letters on some of the gravest questions affecting the policy of the two nations. The correspondence was sanctioned by successive English cabinets, every letter which the Queen either received from, or sent to, any foreign prince on political affairs being invariably communicated by her either to the Prime-minister or to the Foreign Secretary; and they, in one instance, even suggesting to her Majesty to write to Louis Napoleon[287] with an object so delicate as that of influencing the language with which he was about to open his Chambers. But we must think the line recommended by Pitt to George III. both more constitutional and more safe. A letter from one sovereign to another on political subjects cannot be divested of the character of a state-paper, and for every state-paper some one must be responsible. The sovereign cannot be, but for every one of his actions the ministers are. And it follows, therefore, that they are thus made responsible for documents of which they have not been the original authors; of which, were it not for the courtesy of the sovereign, they might by possibility be wholly ignorant; and with parts of which, even with the knowledge which that courtesy has afforded them, they may not fully coincide, since they could hardly venture to subject a composition of their royal mistress to a vigorous criticism. Such a correspondence, therefore, places them so far in a false position, and it runs the risk of placing the sovereign himself in one equally false and unpleasant, since, if the opinions expressed or the advice given fail of their effect, the adviser is so far lowered in the eyes of his correspondent and of the world. As has been incidentally mentioned, in the spring of 1854 war broke out with Russia, nominally on account of the Sultan's refusal to concede some of the Czar's demands concerning the condition of the Greek Church in Palestine, but more really because, believing the Turkish empire to be in the last stage of decay, he hoped by hastening its destruction to obtain the lion's share of its spoils. And for the first time for two centuries an English and French army stood together in a field of battle as allies. In the field our armies were invariably victorious, inflicting severe defeats on the enemy at Alma and Inkerman, and wresting from them the mighty fortress of Sebastopol, in the Crimea, which hitherto they had believed to be absolutely impregnable. Our fleet was, if possible, still more triumphant, destroying Bomarsund and Sweaborg, in the Baltic, without the Russian ships daring to fire a single gun in their defence, while their Black Sea fleet was even sunk by its own admiral, as the only expedient to save it from capture. And in the spring of 1856 the war was terminated by a treaty of peace, in which, for the first time since the days of Peter the Great, Russia was compelled to submit to a cession of territory. But (it may almost be said) to the credit of the nation these successes, glorious and substantial as they were, made at the time scarcely so great an impression on the people as the hardships which, in the first winter of the war, our troops suffered from the defective organization of our commissariat. Want of shelter and want of food proved more destructive than the Russian cannon; presently our gallant soldiers were reported to be perishing by hundreds for lack of common necessaries; and the news awakened so clamorous a discontent throughout the whole of the United Kingdom as led to another change of ministry, and Lord Aberdeen was succeeded by Lord Palmerston. While a war on so large a scale was being waged there was but little time to spare for the work of the legislator, though it is not foreign to our subject to relate that in 1855 the last of those taxes which the political economists denounced as taxes on knowledge, the tax on newspapers, was abolished. Originally it had been fourpence; in 1836 Mr. Spring Rice, Chancellor of the Exchequer in Lord Melbourne's ministry, had reduced it to a penny; and now, with a very general acquiescence, it was abolished altogether. The entire abolition of a tax is not properly to be called a financial measure, that epithet belonging rather to those which aim at an augmentation of revenue by an increase in the number of contributors to a tax, while lessening the amount paid by each. But the abandonment of the tax in question should rather be regarded as a sacrifice of revenue for the instruction of the people in political knowledge; a price paid to enable and induce the poorer classes to take a well-instructed interest in the affairs of the state and the general condition of the country. And, viewed in this light, the abolition of this tax must be allowed to have been a political measure of great importance, and to have contributed greatly to the end which was aimed at. Till 1836 a daily paper, costing sevenpence, was the luxury of the few; and the sale even of those which had the largest circulation was necessarily limited. But the removal of the tax at once gave birth to a host of penny newspapers, conducted for the most part with great ability, and soon attaining a circulation which reached down to all but the very poorest class; so that the working-man has now an opportunity of seeing the most important questions of the day discussed from every point of view, and of thus acquiring information and forming a judgment on them which the subsequent extension of the franchise makes it more than ever desirable that he should be able to form for himself. Every movement in that direction renders it the more necessary to raise the intelligence of the great mass of the people to a level which may enable them to make a safe and salutary use of the power placed in their hands. And no mode of implanting a wholesome political feeling in the masses can equal candid political discussion: discussion one ruling principle of which shall be to teach that the greatest differences of opinion may be honestly entertained; that, with scarcely an exception, the leading men of each party, those who have any title to the name of statesman, are animated with an honest, patriotic desire to promote the best interests of the nation; and that the elucidation of truth is not aided by unreasoning invective and the undeserved imputation of base motives. One of the last topics discussed by Mr. Hallam was the introduction of a bill to limit for the future the prerogative of the crown in a field in which its exercise had previously been unrestrained, the creation of peers;[288] and among the last which we shall have to examine was one of an exactly opposite character, though relating to the same subject, the creation of a life peerage. In the winter of 1855 Sir James Parke, one of the Barons of the Exchequer, was created Lord Wenslydale, by letters-patent which conferred the title limiting it also to the new peer's own life. The professed object of the measure was to strengthen the judicial power of the House of Lords. But it was not denied that the limitation of the peerage conferred on him for his own life (a limitation which made no practical difference to Sir James himself, since he had no children) was intended to raise the question whether the crown could or could not create a life peerage with a seat in the House of Lords. A creation so limited was so novel, or at all events so long disused a proceeding, that it inevitably provoked examination and discussion. And, as it was found that the lawyers in general regarded it as indefensible, at the beginning of the session of 1856 Lord Lyndhurst brought the matter before the House of Lords by a motion for the appointment of a committee of privileges to investigate and report upon it. There were two aspects of the case which naturally came to be considered in the debates on it which ensued: the advantages or disadvantages, in other words, the political expediency, of such a form of letters-patent, and their legal or constitutional propriety. It was, of course, with the latter alone that the committee of privileges had to deal. And this part of the question was examined with great legal and antiquarian learning, though, as was almost inevitable, it was argued as a party question, except, indeed, by the lawyers. They, with the exception of the Chancellor, Lord Cranworth, who had advised the measure, were unanimous in their condemnation of it; the Whig peers, Lord Brougham and Lord Campbell, then Chief-justice, being as positive in their denial of the right so to exercise the prerogative as those on the Opposition side of the House, Lord Lyndhurst or Lord St. Leonards.[289] The arguments against the measure were chiefly these: The objectors drew a distinction between what was legal according to the strict letter of the law, and what was constitutional; contending that there might be exercises of the prerogative which could not be affirmed to be illegal, but which no one would deny to be altogether inconsistent with the principles and practice of the constitution, since a great part of the constitution rested on unwritten law, on long-continued usage, _Lex et consuetudo Parliamenti_. And they affirmed that this measure was so opposed to that usage, that "no instance had occurred within a period of four hundred years in which a commoner had been raised to a seat in the House of Lords by a patent of peerage containing only an estate for life;"[290] one most essential, if not the most essential character of the peerage being that it was an hereditary dignity, and one which combined with its rank an hereditary seat in the House of Lords. That one or two instances of life peerages were to be found in the annals of the Plantagenet kings was not denied, though none exactly similar in character.[291] But Lord Lyndhurst argued that precedents which had occurred "at a time when the constitution of the country was neither understood nor fully formed" were entitled to but little respect; and Lord Derby, limiting the age of valid precedents a little more strictly, "said frankly that he had no respect for any precedent affecting the prerogatives of the crown that dated farther back than the year 1688." And since that time, or indeed since the time of Henry VIII., it was certain that no life peerage had ever been granted, except by Charles II., James II., and George I. and II., to some of their mistresses, instances wholly beside the present case, since, of course, none of those ladies could claim seats in the House of Lords. Indeed, it was believed that both Mr. Pitt, at the time of the Union, and Lord Grey, in 1832, had considered the question, and had both decided against the propriety of advising a creation of life peerages. In defence of the measure Lord Granville refused to admit the distinction between what was legal and what was constitutional; if a measure were both legal, that is, warranted by the letter of the law, and also expedient, these two concurrent qualities, he contended, made it constitutional. He denied, also, that any legal prerogatives of the crown could be held to have lapsed through disuse; _nullum tempus occurrit Regi_; and he challenged any peer to assert that the sovereign had lost the right of refusing his royal assent to a measure passed by the two Houses, merely because no sovereign since William III. had so exercised his royal prerogative. And against the authority of Mr. Pitt and Lord Grey he quoted that of Lord John Russell, who, in 1851, had offered a life peerage to an eminent judge, who, though he had declined the offer, had been influenced in his refusal by no doubt of the right of the crown to make it. On the expediency of the measure its opponents had urged that it would effect a remodelling of the House of Peers, a total change of its constitution, by the introduction of a second and distinct class of peerages; and Lord Campbell, with a not unbecoming jealousy for what he regarded as the interests of his brother lawyers, argued that it would "henceforth prevent any lawyer, however eminent he might have been as an advocate, whatever services he might have rendered to the state in the House of Commons, whatever fame or fortune he might have acquired, from aspiring to an hereditary peerage, or to becoming the founder of a family, since, to make a distinction between the Chancellor and the Chief-justice, between one Chancellor or Chief-justice and another, when coming into the Upper House, as to the tenure of their honors, would be intolerable; all must be under the same rule, 'no son of theirs succeeding.'" And Lord Lyndhurst closed his argument by drawing a comparison between the House of Lords and the French Senate: "It was but a few weeks since he had read an official comment in the _Moniteur_, coming from the highest source, on the inefficiency, the want of patriotism, energy, and the backwardness to fulfil the high destinies to which they were called, that characterized that illustrious body, the Senate of France. He had no disposition to cut down our tribunal to that life interest on which the Senate of France is based, as he believed the hereditary character of the House of Lords to be one from which great and important advantages are derived.... The hereditary principle," he added, "is intwined in every part of our constitution; we in this House enjoy our hereditary rights in common with the crown; we mutually support and assist each other, and we form a barrier and defence to protect both those branches of the constitution against any by whom they may be assailed." As Lord Granville had made the expediency of any measure the quality which, combined with legality, was sufficient to establish its constitutional character, he naturally labored this point with especial diligence. He dwelt upon the great importance of strengthening the judicial element in the House, since it was the great ultimate court of appeal. He produced a letter of the great Chancellor, Lord Eldon, which quoted instances in which various administrations had found difficulties in the way of introducing eminent lawyers into the House, because their want of adequate fortune to support the rank had disinclined them to encumber their descendants with an hereditary peerage. He showed also that that difficulty had made so great an impression on their own Chairman of Committees, Lord Redesdale, that on one occasion he had intimated a feeling in favor of allowing "the Law, in the same way as the Church, to be, to a certain extent, represented in the House by the holders of certain offices, who should be admitted to that House as Peers of Parliament during the continuance of holding such office" (to which argument Earl Grey added another, that the instance of bishops, who were but life peers, proved that the holders of life peerages were not considered inferior to hereditary peers). He dwelt, too, on the evil consequence of the Lords "placing themselves before the country as seeking to limit the prerogative of the crown, when that prerogative was exercised with a view to remedy something that was weak, and to remove a certain imminent danger." What the danger was he certainly did not explain. But Lord Grey, in supporting him, took wider ground, and, applying the argument derived from Lord Eldon's letter to other professions, extolled the idea of instituting life peerages as one whose effect would be "more easily to open the doors of the House to men whom it was desirable should be admitted--to distinguished officers; to eminent writers; to members of the House of Commons, who in their different lines might have rendered good service to the state, but who, though possessing means amply sufficient to support their rank during their own life, yet, from having only a life income, or a numerous family to be provided for, might be unable to accept an hereditary peerage without injury to their family. In such instances," he contended, "it would be most desirable to grant peerages for life only. Such a proceeding would, he was convinced, by no means disincline others in different circumstances to accept hereditary titles, nor indispose the ministry to confer them. Nor did he see any reason for fearing that the practice of creating life peerages would be more likely to be abused for the purpose of increasing the power of the minister than the creation of hereditary peerages." The committee of privileges was appointed, and reported it as the opinion of the members that "neither the letters-patent by themselves, or with, the addition of the usual writ of summons, could entitle the grantee to sit and vote in Parliament." And the House, by a majority of ninety-two to fifty-seven, adopted their report. The ministers yielded to its judgment, and ennobled Lord Wenslydale by a new patent in the usual form, as Lord Derby had suggested. But Lord Derby desired to show that his objection had been founded on principle only; and, as he was willing to admit that, apart from the principle involved, "some advantages in certain cases, and under certain modifications, might arise from peerages for life," he proposed the appointment of a select committee "to consider the expediency of making provision for the more efficient discharge of the duties of the House as a court of appeal." The committee was appointed, and, after careful consideration, recommended the creation of two new offices, to be held by two law lords, as "Deputy Speakers of the House of Lords," who should be judges of at least five years' standing, and should be enabled "by authority of Parliament to sit and vote in the House, and enjoy all the rights and privileges of a peer of Parliament under a patent conferring a peerage for life only, if the crown may have granted or shall grant the same to such persons in preference to an hereditary peerage, provided always that not more than four persons shall have seats in the House at one time as peers for life." Such an arrangement would have introduced a new practice, but not a new principle, since the annexation of a seat in the House of Lords to certain offices had existed from time immemorial in the case of the bishops. And the bill was carried in the House of Lords, but defeated in the Commons by a motion to refer it to a committee, which was adopted by a small majority, in a not very full House,[292] toward the end of the session. Those who look at the question apart from all preference of one minister or one party to another will, probably, be of opinion that the decision of the committee, that a life peerage thus created by the crown could not confer a seat in Parliament, was conformable to the most legitimate view of the constitution. It was, indeed, matter of history that in the Middle Ages the crown had exercised its prerogative in many ways which it had since abandoned. Boroughs had been enfranchised, and again disfranchised, apparently from no motive but pure caprice; writs of summons had been withheld from peers.[293] But no one would have justified the repetition of such acts now. And common-sense, as well as recognized usage, favored the doctrine that long disuse was a sufficient and lawful barrier against their revival. That the power of conferring life peerages with a seat in Parliament--of which, perhaps, the only undeniable instances were the cases of the brothers of Henry V., whose royal blood would in those days, probably, have been held to warrant an exception in their favor--had not been exercised for full four hundred years, was admitted; and the assumption that so long a disuse of a power was tantamount to a tacit renunciation of it, is quite compatible with a loyal and due zeal for the maintenance of other parts of the prerogative which have suffered no such abatement. If, however, we consider the expediency of the measure, or, in other words, the possible advantage that might ensue from the existence of a power to create life peerages with a seat in Parliament, opinions will probably be more divided. We have seen that Lord Derby allowed that there might be advantages in such an exercise of power under certain limitations; and the existing system does, undoubtedly, appear open to improvement in certain cases. At present the only mode of rewarding naval or military commanders who have performed brilliant and useful service, or a Speaker of the House of Commons, whose public career, though less showy and glorious, may at times have been scarcely less valuable, and has certainly been by far more irksome, is the grant of a peerage with a pension for lives. Without the peerage they cannot have the pension.[294] And, consequently, many most distinguished officers, whose conspicuous merits well deserved conspicuous honors, have gone unrewarded except by some promotion of knighthood, which carries with it no substantial benefit; while the descendants of some of those who have been ennobled have openly lamented that the only mode which could be found of honoring their fathers proves a punishment to their heirs, by encumbering them with an empty title, which they are unable adequately to support, and practically closing against them avenues to possible wealth and distinction which custom pronounces derogatory to their rank. So, not to mention the names of living worthies, no reward could be found for Sir W. Parker, that brave and skilful seaman who conducted a British fleet two hundred miles up a Chinese river, and crowned his exploits by the capture of a mighty city, which had never before beheld a European flag; nor for Inglis, who, when the safety of our Indian Empire hung upon his gallantry, successfully sustained a siege whose hardships and dangers are surpassed by none in ancient or modern history. Many will, probably, be of opinion that it is not for the honor of England that such services should want due recognition; and that for men like those life peerages with liberal pensions would be an appropriate recompense. It would, of course, be impossible to limit the number of them beforehand, but it would also be needless, since the nature of the services by which alone they could be deserved would act of itself as a sufficient limitation. One of the expedients which had been mentioned in this discussion had been the annexation of peerages to certain offices, to which it had been regarded as an unanswerable objection that this would be the creation of an absolutely unheard-of tenure, the peer thus created being able at pleasure to lay down his peerage, or even, it might be, being removable. But before the end of the session an emergency arose which induced Parliament to sanction the principle, novel though it was, that an official peerage, if a bishopric may be so called, might be laid down with the sanction of Parliament when the holder was no longer able to discharge its duties. Two of the most eminent members of the Episcopal bench, Dr. Blomfield, Bishop of London, and Dr. Maltby, Bishop of Durham, had become wholly incapable of discharging their duties, the one having been struck down by paralysis, and the other being almost blind. And they now proposed to the Prime-minister that he should make some arrangement by which they might be allowed to relinquish their offices, retaining a certain portion of the income of their sees as a retiring pension. There was no precedent for such an arrangement, but the necessity of the two cases was so manifest, the injury which the Church must suffer if the superintendence of two such important dioceses were to be neglected, was so palpable, and the conditions of the retiring pensions asked were so moderate and equitable, that Lord Palmerston had no hesitation in sanctioning the introduction of a bill to give effect to the arrangement proposed. It did not pass without vigorous resistance from more than one quarter. The Bishop of Exeter complained of it as incompatible with the great Church principle, that a bishop could only resign his office to the archbishop of his province; others opposed it as a violation of the common law, which forbids any bargain being made for the resignation of an office; while some, referring to the prohibition of simony (a word, perhaps, as much misunderstood and as often misapplied as any in the language), denounced the arrangement that the retiring prelates were to have pensions as simoniacal.[295] The most reasonable objection made to the proceeding was, that such exceptional legislation to meet an isolated case tended to establish a dangerous precedent, and that, as there were other men of great age on the bench, it would be better to effect the end now aimed at by a large general measure providing means for the retirement of all clergymen, those of inferior rank as well as bishops, whom age or infirmity might incapacitate. But the general feeling was against delay. The bill passed, and served in some degree as a model for that general measure which was soon afterward introduced, and which, as was suggested on this occasion, provided for an arrangement similar in principle being carried out whenever a priest holding any kind of ecclesiastical preferment should become disabled for the performance of its duties. There can be no doubt that such legislation was absolutely necessary in the interests of the Church, taking that expression to include, not the clergy alone, but the whole congregation of Churchmen. But it introduced a remarkable change into the system of ecclesiastical peerages, and, so far, into the constitution of the House of Lords. What was resigned by the two prelates was not the peerage (they had still the right to be styled "my lord"), but the seat in the House of Lords, which was a part, and which had hitherto been regarded as an inseparable part of it, or, at least (as it should, perhaps, rather be said, since the recent regulation that the junior bishop should not have a seat was a clear violation of that principle), which hitherto no one had been able to dissociate from the peerage after it had been once enjoyed. The treaties which terminated the war with Russia were not concluded till the spring of 1856; and it was well, indeed, that the country had no longer a foreign war on her hands, for a twelvemonth had scarcely elapsed when the very continuation of her existence as a great Eastern power was suddenly imperilled by what, regarded in one aspect, was a mutiny of her troops on a most extensive scale; in another, a civil war, waged by a combination of native princes, Hindoo as well as Mohammedan,[296] for the total extinction of our power, and the expulsion of the British race from Bengal. As early as the first week of February several commanders of regiments and other authorities received warnings of the organization of a wide conspiracy against our power; and in the second week of May the troops at Meerut broke into open mutiny, set fire to the public buildings, murdered their officers, and even their wives and children, and then marched off to Delhi, where the garrison was prepared to receive them with open arms, and to imitate their atrocities. The contagion spread, and in a few weeks nearly all Bengal was in arms. In one or two instances the native chiefs stood by us, but the greater number joined the insurgents, some from the desire to throw off our yoke, but others, probably, from constraint and through fear. Whatever were their motives, before the end of June nearly all the principal cities and fortresses of Bengal, up to the very gates of Calcutta, were in the hands of the insurgents, the chief exception being at the great city of Lucknow, where, though the mutineers got possession of the city, a British garrison held the Residency, in the centre; and, maintaining themselves with heroic fortitude, unsurpassed in all the history of war, for nearly nine months, contributed more than any other body of men to the final suppression of the revolt. It would be beside our purpose here to dwell upon the great deeds by which in that terrible year our army, in all its branches, maintained its old renown; upon the recapture of Delhi; the deliverance of the incomparable defenders and preservers of Lucknow; the exploits of Lawrence, and Inglis, and Havelock, and Outram, and Peel, and Campbell; and, if we are forced to deny ourselves the proud gratification of dwelling on their combined heroism and wisdom, we may for the same reason be spared the pain of recounting the horrid cruelties wreaked in too many instances not only on the officers who fell into the rebels' hands, and on the civil magistrates, but on the helpless women and children. In the first excitement of fear and horror those cruelties were, no doubt, greatly exaggerated, but still enough remains proved to stamp the insurrection as one branding with the foulest disgrace the race which perpetrated and exulted in them. It was not till the last week of 1858 that the last sparks of rebellion were finally extinguished by the defeat in Oude of the last body of rebels who remained in arms, and the flight of the remnant of their force across the frontier of Nepaul; but, even before that day came, the ministry at home had been led to see the necessity of putting the government of the country for the future on a different footing. It could hardly be doubted that the prompt suppression of a revolt of so unprecedented a magnitude, and the proof given in the course of our operations that the British soldier still maintained the same superiority over the native trooper as in the days of Clive, had heightened our reputation and the belief of our power among the native tribes. But, speedily and decisively crushed though it had been, the revolt had given too terrible a proof of the inconstancy and treachery of the native tribes not to act as a warning to our statesmen; and the reflection that was thus forced upon them showed that a company of merchants, however distinguished by general courage and sagacity they had shown themselves, was no longer qualified to exercise imperial dominion over a territory which now extended over more than a million of square miles, and more than a hundred and fifty millions of native subjects. Accordingly, in the first week of the session of 1858, Lord Palmerston, as Prime-minister, introduced a bill to transfer the government of British India from the East India Company to the crown. It was natural that the principle of such a measure should be opposed by the Directors of the Company, though it was supported by more than one person who had held high civil office in India; and equally natural that the arrangement of its details should call forth a minute and rigorous examination, and on many points a very determined opposition. We need not, however, say more about this bill, since circumstances prevented its being proceeded with; and the history of those which succeeded it is now only worth referring to as showing the extreme difficulty of the task of framing a government on new principles for a dependency of such vast magnitude and importance.[297] Lord Palmerston's bill was dropped, in consequence of the fall of his ministry, before the time came for its second reading; but the discussion on it had to some extent smoothed the way for that of his successor, Lord Derby. A great impression on the Parliament, and on the country in general, had been made by a very able speech of Sir G.C. Lewis, Chancellor of the Exchequer. He traced the whole history of the Indian government from the day of Plassy, and substantiated the right of the home government and Parliament to remodel it as they might judge best, by proving that ever since the passing of Pitt's first bill, in 1784, the Company had been constantly subject to Parliamentary control. He showed, too, most convincingly, that a petition which the Company had presented to the House of Commons, deprecating any change in the existing system which should tend to diminish the authority of the Directors, was based on one great fallacy--speaking, as it did, of the Company as one and indivisible, and unchanged in character, functions, and influence, down to the date of the last renewal of its charter, only five years previously; whereas the truth was, that in the one hundred years since Plassy the system had undergone as many changes as the English constitution between the Heptarchy and the reign of Queen Victoria. He had thus removed some of the obstacles out of the way of the measure of the new government, though Lord Derby would have preferred postponing it till tranquillity should have been restored to the country by the complete suppression of the revolt, had not the large majority[298] which had sanctioned the introduction of Lord Palmerston's bill, in his opinion, "placed the Company in such a situation that they could no longer command the same amount of public confidence and public support as they were entitled to receive previously to that vote of the House of Commons." It may be added that the first bill on the subject which was introduced by his government bore evident marks of the difficulties under which it was framed--difficulties existing from the unexpected suddenness of his accession to office; so that, after a not very short discussion, it was eventually withdrawn, and it was not till the end of June that the measure which was finally adopted was introduced. The leading enactments of the measure[299] provided that for the future the government of India, described as having been hitherto vested in, or exercised by, the Company in trust for her Majesty, should be vested in her Majesty, and exercised in her name; that one of her Majesty's principal Secretaries of State should have and perform all such powers and duties relating to the government or revenues of India as had formerly belonged to the Court of Directors, as the Court of Proprietors of the Company; that a Council of the Governor-general should be established, consisting of fifteen members, seven of whom should be appointed by the Court of Directors, being persons who were, or had formerly been, Directors of the Company, and eight should be nominated by the crown. And as to both classes, it was provided that the majority should consist of persons who had served or resided in India for ten years at the least, and should not have left India more than ten years when appointed. They were to hold their offices during good behavior, to receive salaries, and to be entitled to retiring pensions, but to be incapable of sitting in Parliament. The appointment of Governor-general and Governor of each Presidency was to belong to the crown. The expenditure of the revenues of India, both in India and elsewhere, was to be subject to the control of the Secretary of State in Council; other clauses provided for the dividends of the Company, for the admission of persons into the civil service; and, with reference to existing establishments, one clause provided that "the Indian military and naval forces should remain under existing conditions of service." This last clause was strongly objected to by the Queen,[300] as "inconsistent with her constitutional position as head of the army, which required that the Commander-in-chief should be put in communication with the new Secretary of State for India, in the same manner in which he is placed with regard to the troops at home or in the colonies toward the Secretary of State for War.... With regard to the whole army, whether English or Indian, there could, with due regard to the public interest, be only one head and one general command." She yielded her opinion, however, to the resolute objections of the Prime-minister, with whom on this point his predecessor,[301] Lord Palmerston, agreed; but the result proved the superior soundness of her Majesty's view. It was not only a most anomalous arrangement, since the supreme control of all the warlike forces was one of the most inalienable prerogatives of the crown, but it had the strange fault of preserving the double government in the case in which, above all others, unity of system and unity of command were most indispensable. And, what weighed more than either consideration with the generally practical views of English statesmen, it was from the beginning found to work badly, creating, as it did, great and mischievous jealousies between the two divisions, the Royal and the Indian army. It was found that all the generals then in the highest commands in India--Lord Clyde (Sir Colin Campbell having been ennobled by that title), Sir Hugh Rose, and Sir William Mansfield--strongly disapproved of it, and recommended a change; and consequently, in the summer of 1860, Lord Palmerston, who in the mean while had returned to the Treasury, came round to the Queen's view of the subject, and a new act was passed which amalgamated the two armies into one Imperial army, taking its turn of duty throughout all parts of the British empire.[302] A letter addressed by Lord Palmerston to the Queen in the autumn of 1857, which appears to have been his first statement to her Majesty of the opinion which he had formed of the necessity of abolishing the governing authority of the Company, states the principal arguments in favor of such a measure with great clearness, as arising from "the inconvenience and difficulty of administering the government of a vast country on the other side of the globe by means of two cabinets, the one responsible to the crown and Parliament, the other only responsible to the holders of Indian stock, meeting for a few hours three or four times a year, which had been shown by the events of the year to be no longer tolerable." His disapproval of parts of Lord Ellenborough's policy probably prevented him from alluding to his recall from India by the Directors, in direct defiance of the opinion of the government,[303] though that strange step can hardly have been absent from his mind. But, in fact, the case for taking the whole rule of so vast a dominion wholly into the hands of the Queen's government at home was so irresistible, that it did not require to be strengthened by reference to any individual instances of inconvenience. When the double government was originally established, the English in India were still but a small mercantile community, with very little territory beyond that in the immediate neighborhood of its three chief cities. Of the conduct of the affairs of such a body, still almost confined to commerce, the chief share might not unreasonably be left to the merchants themselves, subject to such supervision on the part of the government at home as was implied in the very name of the department invested with that supervision, the Board of Control, which, as Pitt explained the name, was meant to show that it was not to be, like the measure proposed by the Coalition Ministry, a board of political influence.[304] But the case was wholly altered when British India reached from Point de Galle to the Himalayas, and spread beyond the Ganges on the east, to beyond the Indus on the west; when the policy adopted in India often influenced our dealings with European states, and when the force required for the protection of those vast interests exceeded the numbers of the royal army. India, too, is a country the climate of which prevents our countrymen from emigrating to it as settlers, as they do to Canada or Australia, and where, consequently, the English residents are, and always must be, a mere handful in comparison with the millions of natives. In such a case their government must at all times rest mainly on opinion, on the belief in the pre-eminent power of the ruler; and it was obvious that that belief would be greatly fortified by the sovereign of Britain becoming that ruler.[305] The great rajahs cordially recognized the value of the transfer of power considered in this light, and felt their own dignity enhanced by becoming the vassals of the sovereign herself. Turning to French affairs, a brilliant French writer has remarked, that his countrymen are, of all peoples, the least suited to be conspirators, since none of them can ever keep a secret. But it was the ill-fortune of Louis Napoleon that he had provoked enmities, not only among his own countrymen, but among the republican fanatics of other nations also, who saw in his zeal for absolute authority the greatest obstacle to their designs, which aimed at the overthrow of every established government on the Continent, and shrunk from no crimes which they conceived to be calculated to promote their object. To free themselves from such an antagonist, the most wholesale murders seemed by no means too large a price. And in the middle of January, as the Emperor and Empress were going to the Opera, a prodigious explosion took place almost beneath the wheels of their carriage, from the effect of which they themselves had a most narrow escape, both being struck in the face by splinters, the aide-de-camp in their carriage also being severely wounded on the head; while their escort and attendants were struck down on all sides, ten being killed and above one hundred and fifty wounded.[306] It was soon found out that the authors of this atrocious crime were four Italians, of whom a man named Orsini was the chief, and that he, who had but recently escaped from a prison in Mantua, had fled from that town to England, and had there concocted all the details of his plot, and had procured the shells which had been his instruments. It was not unnatural that so atrocious a crime, causing such wide-spread destruction, should awaken great excitement in France, and in many quarters violent reclamations against England and her laws, which enabled foreign plotters to make her a starting-place for their nefarious schemes. Even in the French Chambers very bitter language was used on the subject by some of the most influential Deputies, for which our ministers were disposed to make allowance, Lord Clarendon, the Foreign Secretary, writing to the Prince Consort that "it was not to be expected that foreigners, who see that assassins go and come here as they please, and that conspiracies may be hatched in England with impunity, should think our laws and policy friendly to other countries, or appreciate the extreme difficulty of making any change in our system."[307] But a different feeling was roused by a despatch of the French Secretary of State to the ambassador here, which seemed to impute to this country that it deliberately sheltered and countenanced men by whose writings "assassination was elevated into a doctrine openly preached, and carried into practice by reiterated attacks" upon the person of the French sovereign, and asked, in language which had rather an imperious tone, "Ought the English Legislature to contribute to the designs of men who were not mere fugitives, but assassins, and continue to shelter persons who place themselves beyond the pale of common right, and under the ban of humanity? Her Britannic Majesty's Government can assist us in averting a repetition of such guilty enterprises, by affording us a guarantee of security which no state can refuse to a neighboring state, and which we are justified in expecting from an ally. Fully relying, moreover, on the profound sagacity of the English Cabinet, we refrain from indicating in any way the measures which it may seem fit to take in order to comply with this wish. We confidently leave it to decide on the course which it shall deem best fitted to the end in view." Still, though the charge that our Legislature contributed to the designs of assassins was some departure from the measured language more usual in diplomatic communications between friendly powers, under the circumstances this remonstrance might have been borne with. Unluckily, it was not all, nor the worst, that we were called upon to bear. A few days afterward some addresses to the Emperor from different military corps were published in the _Moniteur_, which not only poured forth bitter reproaches against the whole English nation, but demanded to be led to an invasion of the country, "as an infamous haunt for the carrying out of infernal machinations." Political addresses seem to our ideas inconsistent with military discipline; but the army had been permitted, and even encouraged, to make them ever since the days of the Consulate, though such addresses never received the recognition of a publication in the official journal till they had been subjected to careful revision, and, if necessary, expurgation. On this occasion, however, that supervision had been carelessly performed, and the offensive passages were left standing, though, when the Emperor learned the indignation which they had excited even among his well-wishers in England, he instructed his ambassador to apologize for their retention and publication, as an act of inadvertence on the part of the officials whose duty it had been to revise such documents. So far all was well. And had the English ministers replied to the despatch of M. de Persigny in firm and temperate language, they would have escaped the difficulties which eventually overthrew them. There was no doubt that, according to diplomatic usage, a written despatch formally communicated to the Secretary of State required a written reply. Unfortunately, a written reply was not given. Lord Clarendon was too apprehensive of the mischief which might possibly arise from a protracted discussion, leading, perhaps, to an angry controversy; and under the influence of this feeling contented himself, when the despatch was presented, with giving the ambassador a verbal answer, that "no consideration on earth would induce Parliament to pass a measure for the extradition of foreign political refugees; that our asylum could not be infringed, and that we adhered to certain principles on that subject which were so old and so sacred that they could not be touched;"[308] adding, however, at the same time an assurance that the Attorney-general was already, at his request, examining our law of conspiracy, to see whether it was sufficiently comprehensive or stringent. The purport of this answer was all that could have been desired; but there was a very general impression that the omission to reply by a written despatch was a sacrifice of the national dignity, if not an unworthy submission to scarcely disguised menace; though at the same time there was also a feeling among both parties in Parliament that our laws with respect to the conduct of foreigners residing among us were, perhaps, susceptible of improvement. On the very first night of the session, in allusion to the attack on the French Emperor, Lord Derby had said that "he could wish to hear the opinion of the ministers whether the existing laws of this country were adequate to afford security for the lives of foreign princes against plots contrived in this country; and, if they were not, whether they might not be amended, so as to meet the case of such crimes as had recently been perpetrated, which were so heinous and revolting to every feeling of humanity." And even before that speech the ministers had applied themselves to frame a measure to amend the law, which in the second week of February the Prime-minister himself introduced to the House of Commons. It was read a first time, though not without some opposition; but before it arrived at the second reading, though only a week afterward, the feeling of the country, reflected in this instance by the House, had become so inflamed, that the measure was not discussed on its own merits, but on the point whether, since no other answer had been given to the French despatch, this must not be regarded as the ministerial answer, and therefore whether it were such an answer as it befitted England to send. Had it been examined on its own merits solely, it could hardly have provoked much adverse criticism. It was entitled, "A bill to amend the law with relation to the crime of conspiracy to commit murder," and it merely proposed to establish in England a law which had long existed in Ireland. Hitherto, as Lord Palmerston explained the matter, England had treated conspiracy to murder as a misdemeanor, punishable with fine and imprisonment. In Ireland it had long been a capital crime; and, though he did not propose to assimilate the English to the Irish statute in all its severity, he proposed to enact that conspiracy to murder should be a felony, punishable with penal servitude, by whomsoever the conspiracy might be concocted, or wherever the crime might be designed to be committed. The principle of such a law, supported as it was by the precedent of Ireland, could hardly be resisted. And Mr. Walpole, who had been Home-secretary in Lord Derby's ministry, avowed his determination to support the bill, "as being right in principle." But even he limited his promise of support by a condition "that the honor of England should be previously vindicated;" arguing that the French despatch bore the character of a demand, based upon allegations which were contrary to truth, and which, therefore, the ministers were bound to repudiate; and that to pass such a bill without putting on record a formal denial of those allegations would, in the general view of Europe, imply a confession that to them we had no answer to give. And it was this consideration which eventually determined the decision of the House, Mr. Disraeli, who closed the debate on his side, condemning the conduct of the ministers as "perplexed, timid, confused, wanting in dignity and self-respect. In not replying to the despatch, they had lost a great opportunity of asserting the principles of public law." The House, taking his view of their conduct, threw out the bill by a majority of nineteen;[309] and the ministry resigned, and was succeeded by one under the presidency of Lord Derby. Many of those who on this occasion combined to form the majority had denounced the bill, as an infringement of the principles of our constitution. It is, however, evident that, had it passed, it would not have deserved such a description. It would in no degree whatever have deprived a foreign resident of safety and the protection of English law, so long as he should obey that law; and that is all the indulgence that the constitution ever gave or ought to give. Foreigners had always been amenable to our courts of justice for any violation of the law. And Lord Palmerston's bill not only went no farther than removing a certain class of offences from the category of misdemeanors to that of felonies, but it also imposed no liability in that respect on foreigners which it did not at the same time impose on all the Queen's subjects. Indeed, the bill was so moderate, and the improvement it proposed so desirable, that, in a subsequent discussion in the House of Lords, Lord Campbell, the Chief-justice, expressed a hope that Lord Derby's government would take it up; though Lord Derby, in view of the existing feeling of the country on the subject, prudently forbore to act on that suggestion. But, as one of Orsini's most guilty accomplices, a man named Bernard, was still in London, he caused him to be indicted for murder, as having incurred that guilt as accessary to the death of some whom the explosion had killed. The excitement on the question had, however, not died away when the trial came on; and, though it will, probably, be generally admitted that the evidence was sufficiently clear, Bernard was acquitted. Lord Derby, however, did not long retain his office. Indeed, the Earl was so conscious that, on questions of general policy, the House of Commons was inclined to views differing from his own, that he would have preferred declining the task of forming a ministry, had he not conceived that, in the difficulty in which the Queen was placed by recent circumstances, he was bound by his duty to make the attempt, even if the result of it were merely to obtain a kind of respite for his sovereign and the country, which might give time for the present excitement of feeling to calm down. He was not deceived in his forebodings of his inability to maintain his position. In the course of the next spring he was twice defeated in the House of Commons--once by the House which he found in existence, and a second time in one which was the fruit of a general election. And in the summer of 1859 Lord Palmerston returned to office, with power increased by the junction of many of those who had helped to overthrow him in 1858, but who now combined with him to strike a similar blow at his Conservative successor. Yet, brief as was Lord Derby's tenure of power, it was made memorable by the commencement of a movement which cannot be regarded as devoid of constitutional importance, since, though originally it was only designed to supply a temporary re-enforcement to our ancient constitutional forces, the regular army and the militia, it has eventually created a force which, to the great honor of those who constitute it, has become a permanent addition to them. In the great war against Revolutionary France, when it was generally believed that those who held rule in Paris were contemplating an invasion of these islands, Pitt, as we have seen, had encouraged the formation of corps of volunteers, which continued to be of great use till the very end of the war, by performing, in conjunction with the militia, a great portion of the home duties which must otherwise have fallen on the line regiments, and thus disengaging the regular army for service on the Continent. There was now no such formidable enemy to be dreaded as the first Napoleon, but in every part of Europe affairs were in a state so unquiet that every kingdom seemed at times on the very brink of war; and since, if it should once break out, no one could feel confident that we should not be involved in it, or, if we should be, who would be our allies or our enemies, measures of precaution and self-defence seemed as needful now as they had been sixty years before. Our boldest statesmen were disquieted and anxious; and the nation at large, sharing their uneasiness, kindled with the feeling that it was a time to show that the present generation inherited the self-denying patriotism of their fathers. Leaders were not wanting again to prompt the formation of a volunteer force. The government at once saw the value of the scheme. Fortunately, the Secretary for War, Colonel Peel, happened to be an old soldier, a veteran who had learned the art of war under Wellington himself; and he, having great talents for organization, placed the force from its infancy on a sound footing. How thoroughly the movement harmonized with the martial spirit of the nation--to which, indeed, it owed its birth--is shown by the history of the force, which now, above twenty years after its original formation, maintains its full numbers and yearly improves its efficiency. Though there has not for many years been any apprehension of war, above one hundred and twenty thousand men still annually devote no small portion of their time to the acquisition of military discipline and science, and that so successfully, that, by the testimony of the most experienced judges, they have attained a degree of efficiency which, if the necessity for their services should ever arise, would render them valuable and worthy comrades to the more regularly trained army. Lord Derby retired from office while the force was still in its infancy; but Lord Palmerston was equally sensible of its value, and gave a farther proof of his appreciation of the vast importance of measures of national defence by the vigor with which he carried out the recommendations of a royal commission which had been appointed by the preceding ministry to investigate the condition of our national defences. Its report had pointed out the absolute necessity of an improved system of protection for our great dockyards and arsenals, which, from their position on the coast, were more liable to attack than inland fortresses would have been, had we had such. And, in accordance with that warning, in the summer of 1860, Lord Palmerston proposed the grant of a large sum of money for the fortification of our chief dockyards. It was opposed on a strange variety of grounds; some arguing that the proposed fortifications were superfluous, because our navy was the defence to which the nation was wont deservedly to trust; some that they were needless, because no other nation was in a condition to attack us; others that they were disgraceful, because it was un-English and mean to skulk behind stone walls, and because Lycurgus had refused to trust to stone walls for the safety of Sparta; and one member, the chief spokesman of a new and small party, commonly known as the "peace-at-any-price party," boldly denounced the members of the commission as a set of "lunatics" for framing such a report, and the ministers as guilty of "contemptible cowardice" for suggesting to the nation that there was any danger in being undefended. But the ministry prevailed by a large majority;[310] the money was voted, and the nation in general warmly approved of the measure. As Lord Palmerston subsequently expressed it, "the government, the Parliament, and the nation acted in harmonious concert"[311] on the subject. One of the arguments against it which the objectors had brought forward was, that the ministry was not unanimous in the conviction of the necessity; and we learn from the "Life of the Prince Consort"[312] that Mr. Gladstone, the Chancellor of the Exchequer, was vehement in his resistance to it, threatening even to carry his opposition so far as to resign his office, if it were persevered in. And, as has been intimated on a previous page, this was not the only question on which in the course of this year the Prime-minister did in his heart differ from his Chancellor of the Exchequer, though he did not think it expedient to refuse his sanction to his proposals on a matter belonging to his own department, the Exchequer. The subject on which he secretly doubted his colleague's judgment was one of the proposals made in the Budget of the year. As has already been mentioned, the transaction throws a rather curious light on the occasional working of our ministerial system; and the fate of the measure in the two Houses of Parliament is also deserving of remark and recollection, as re-opening the question, which had not been agitated for nearly a century, as to the extent of the power of the House of Lords with respect to votes of money. In a former chapter[313] we have had occasion to mention the angry feeling on the part of the House of Commons which, in the year 1772, had been evoked by the act of the House of Lords, in making some amendments on a bill relating to the exportation of corn which had come up to them from the Commons. A somewhat similar act had, as we have also seen, revived the discussion a few years later, when the minister of the day had shown a more temperate feeling on the subject. On neither occasion, however, had the question of the privileges of the Lords been definitively settled; and no occasion had since arisen for any consideration of the subject. But the Budget of 1860 contained a clause which, in spite of the deserved reputation of the Chancellor of the Exchequer as a skilful financier, was not regarded with general favor. There was a large deficiency in the revenue for the year; but while, among his expedients for meeting it, Mr. Gladstone proposed an augmentation of the income-tax, he proposed also to repeal the excise duty on paper, which produced about a million and a quarter. It is now known that the Prime-minister himself highly disapproved of the sacrifice at such a time of so productive a tax.[314] And, if that had been suspected at the time, the House of Commons would certainly not have consented to it; even when the ministry was supposed to be unanimous in its approval of it, it was only carried by a majority of nine; and, when the bill embodying it came before the House of Lords, a Whig peer, who had himself been formerly Chancellor of the Exchequer in Lord Melbourne's administration, moved its rejection, and it was rejected by a majority of eighty-nine. The rejection of a measure relating to taxation caused great excitement among a large party in the House of Commons--so violent, indeed, that the only expedient that presented itself to the Prime-minister, if he would prevent the proposal of some step of an extreme and mischievous character, was to take the matter into his own hands. Had he been able to act entirely on his own judgment, it may, perhaps, be thought that, with his sentiments on the inexpediency of the measure which had been rejected, he would have preferred a silent acquiescence in the vote of the Lords; but he would have been quite unable to induce the majority of his own supporters, and even some of his own colleagues, to adopt so moderate a course; and accordingly he moved the appointment of a committee to examine and report on the practice of Parliament in regard to bills for imposing or repealing taxes. And when it had made its report, which was purely of an historical character, setting forth the precedents bearing on the subject, he proposed three resolutions, asserting "that the right of granting aids and supplies to the crown is in the Commons alone, as an essential part of their constitution, etc.; that, although the Lords had exercised the power of rejecting bills of several descriptions relating to taxation by negativing the whole, yet the exercise of that power by them had not been frequent, and was justly regarded by the Commons with peculiar jealousy, as affecting their rights, etc.; and that, to guard for the future against an undue exercise of that power by the Lords, and to secure to the Commons their rightful control over taxation and supply, the Commons had it in their power so to impose and remit taxes, and to frame bills of supply, that their right, etc., might be maintained inviolate." In the debate which ensued his chief opponents came from his own party, and even his own colleague, the Chancellor of the Exchequer, displayed a fundamental difference of feeling from his on the subject, a difference which was expressed by one of the most eloquent supporters of the resolutions, Mr. Horsman, M.P. for Stroud, saying that "Lord Palmerston wished to make the independence of the House of Lords a reality, while Mr. Gladstone seemed to desire that it should be a fiction." Lord Palmerston, indeed, showed the feeling thus attributed to him in a statesman-like declaration that, if "this nation had enjoyed a greater amount of civil, political, social, and religious liberty than, as he believed, any other people in the world, that result had been accomplished, not by vesting in either of the three estates, the Crown, the Lords, or the Commons, exclusive or overruling power over the others, but by maintaining for each its own separate and independent authority, and also by the three powers combining together to bear and forbear, endeavoring by harmonious concert with each other to avoid those conflicts and clashings which must have arisen if independent authority and independent action had been exerted by each or by all." He entered into the history of the question, explaining that, though "each branch of the Legislature retained its respective power of rejecting any measure, the Commons had claimed from time immemorial particular privileges in regard to particular measures, and especially the exclusive right of determining matters connected with the taxation of the people. They claimed for themselves, and denied to the Lords, the right of originating, altering, or amending such measures; but, as long ago as 1671, the Attorney-general, in a memorable conference between the two Houses, had admitted that the Lords, though they could not originate or amend, had, nevertheless, power to reject money-bills;" and this admission he regarded as consistent with common-sense, for "it was well known that, though the Commons contended for the right of originating measures for the grant of supply, and of framing bills with that object, according to their belief of what was best for the public interest, yet such bills could not pass into law without the assent of the Lords; and it was clear that an authority whose assent was necessary to give a proposal the force of law, must, by the very nature of things, be at liberty to dissent and refuse its sanction." The committee had enumerated a large number of precedents (above thirty) in which, since that conference, the Lords had rejected such bills; but the cases were not in general exactly similar to that now under consideration, since the bills which they had rejected had commonly, if not in every case, been for the imposition and not for the repeal of a tax; and in most cases some question of national policy had been involved which had influenced their vote. But the view which Lord Palmerston pressed on the House was that the present was "a case in which party feelings ought to be cast aside. It was one in which higher and larger interests than those of party were concerned, and in which the course that the House now took would be a precedent to guide future Parliaments." He pointed out, moreover, that the smallness of the majority in the House of Commons had been to the Lords "some encouragement to take this particular step," and that "he was himself led to think that they had taken it, not from any intention to step out of their province, and to depart from the line of constitutional right which the history of the country has assigned them, but from motives of policy dependent on the circumstances of the moment; and therefore he thought it would be wise if the Commons forbore to enter into a conflict with the Lords on a ground which might really not exist, but satisfied themselves with a declaration of what were their own constitutional powers and privileges. It was of the utmost importance in a constitution like ours, where there are different branches, independent of each other, each with powers of its own, and where cordial and harmonious action is necessary, that care should be taken to avoid the commencement of an unnecessary quarrel, and the party that acted otherwise would incur a grave responsibility." Mr. Gladstone, however, though he ended by expressing his concurrence in the resolution proposed by his chief, used very different language respecting the vote of the House of Lords, characterizing it as "a gigantic innovation, the most gigantic and the most dangerous that had been attempted in our time," since "the origination of a bill for the imposition of a tax, or the amendment of a money-bill, was a slight thing compared with the claim to prevent the repeal of a tax;" and, dealing with assertions which he had heard, that in this instance "the House of Commons had been very foolish and the House of Lords very wise," he asked whether that really described the constitution under which we live. The House of Commons could not be infallible in matters of finance more than in other matters. It might make errors, but he demanded to know whether those errors in finance were or were not liable to correction by the House of Lords. If they were, "what became of the privileges of the Commons?" On the other hand, Mr. Disraeli, as leader of the Opposition or Conservative party, supported the resolutions, and applauded the speech of the Prime-minister, as "a wise, calm, and ample declaration of a cabinet that had carefully and deliberately considered this important subject. It had acknowledged that the conduct of the Lords was justified by law and precedent, and sanctioned by policy," and he maintained that it showed that "the charge made by the Chancellor of the Exchequer was utterly untenable, and had no foundation." And Mr. Horsman, taking a large general view of the legitimate working of the parliamentary constitution, argued that, while it was an undoubted rule that "all taxes should originate with the Commons, as that elective and more immediately responsible assembly that is constantly referred back to the constituencies, the reviewing power of a permanent and independent chamber was no less essential;" and that, considering that "the Reform Bill of 1832 had given a preponderance of powers to the Commons, and that the tendency of any farther Reform Act must be in the same direction, so far from narrowing the field of action for the peers, the wiser alternative might be to adopt a generous construction of their powers, with a view to preserving the equilibrium that is held to be essential to the safety and well-working of the constitution. The House of Commons," he concluded, "is perpetually assuming fresh powers and establishing new precedents. Virtually all bills now originate with the Commons; but this is not the consequence of any aggressive spirit in them, but is the necessary and inevitable result of the historic working of the constitution; and so this act of the Lords was but the natural working of the constitution to meet a definite emergency." The resolutions were passed, the first and third without a division; the second, to which an amendment had been proposed, designed to limit the force of the precedents alleged as justifying the act of the Lords, by a majority of nearly four hundred.[315] In their form and language the resolutions cannot be said to have greatly affected the power claimed by the Lords, and exercised by them in this instance. The first two were simply declaratory of acknowledged principles or facts, and the third intimated no desire to guard against anything but an undue exertion by the Lords of the right which they were admitted to possess. But it can hardly be doubted that the intention even of Lord Palmerston, dictated by the strong feeling which he perceived to prevail in the House of Commons on the subject, was to deter the Lords from any future exercise of their powers of review and rejection of measures relating to taxation, when, perhaps, the Commons might be under less prudent guidance; nor that the effect of the resolutions will correspond with the design rather than with the language of the mover, and will prevent the Lords, unless under the pressure of some overpowering necessity, from again interfering to control the Commons in such matters. At the same time it seems superfluous to point out that one claim advanced by the Chancellor of the Exchequer, who was apparently carried beyond his usual discretion by his parental fondness for the rejected bill, is utterly unreconcileable with the maintenance of any constitution at all that can deserve the name. When there are three bodies so concerned in the legislation that the united consent of all is indispensable to give validity to any act, to claim for any one of them so paramount an authority that, even if it should adopt a manifestly mischievous course, neither of the others should have the right to control or check or correct the error, would be to make that body the irresponsible master of the whole government and nation; to invest it with that "overruling power" which Lord Palmerston with such force of reasoning had deprecated; and to substitute for that harmonious concert of all to which, in his view, the perfection of our liberties was owing, a submission to one, and that the one most liable to be acted upon by the violence or caprice of the populace. He was a wise man who said that he looked on the tyranny of one man as an evil, but on the tyranny of a thousand as a thousand times worse. And for this reason also the resolutions which were now adopted seem to have been conceived in a spirit of judicious moderation, since, while rendering it highly improbable that the Lords would again reject a measure relating to taxation, it avoided absolutely to extinguish their power to do so. Lord Palmerston, it may be thought, foresaw the possibility of an occasion arising when the notoriety that such a power still existed might serve as a check to prevent its exercise from being required. In the very case which had given rise to this discussion he regarded it as certain that the feeling of the majority of the nation approved of the action of the peers; and, as what had occurred once might occur again, it was certainly within the region of possibility that another such emergency might arise, when the Lords might interfere with salutary effect to save the country from the evil result of ill-considered legislation; finance being, above all others, the subject on which a rash or unscrupulous minister may find the greatest facility for exciting the people by plausible delusions. There is, moreover, another reason why it would not only be impolitic, but absolutely unfair, to deprive the Lords altogether of their power of rejection even in cases of taxation; namely, that the Commons, when imposing taxes, are taxing the Lords themselves, as well as the other classes of the community; while the Lords alone of the whole nation are absolutely unrepresented in the House of Commons. There is a frequent cry for a graduated income-tax; and surely if an unscrupulous demagogue in office were to contrive such a graduation as would subject a peer to three times the income-tax borne by a commoner, it would be a monstrous iniquity if the peers were to have no power of protecting themselves in their own House. In the last sentence of his speech the Chancellor of the Exchequer had "respectfully reserved to himself the freedom of acting in such a way as should appear to offer any hope of success in giving effect by a practical measure to the principle contained in the first resolution." And it was, probably, an exemplification of the power of which he thus bespoke the use that he the next year struck out a scheme for insuring the repeal of the paper-duties, including it in one bill with all his other financial propositions, instead of dividing them in the ordinary way in several distinct bills. It was a manoeuvre which too much resembled the system of "tacking," which had been so justly denounced as one of the most unseemly manoeuvres of faction in the previous century.[316] But, as some of the principal reasons which in the preceding year had led the Lords to condemn the repeal had ceased to exist, and the deficiency of the revenue had been converted into a surplus, they thought it wiser to prove their superiority of wisdom to the House of Commons by showing a more conciliatory spirit, and passed the bill; though the course adopted, which had the effect of depriving the Lords of that power of examination of the details of the financial scheme of the government which they had hitherto enjoyed without any question or dispute, was strongly protested against in both Houses, and by some members who were not generally unfriendly to the administration. A hundred years had now elapsed since George III. ascended the throne. It had been a period full of transactions of great importance, developing the constitution in such a manner and to such an extent as to make a change in its character but little inferior to those which had been produced by the contests of the preceding century. One principal result of the Revolution of 1688 has been described as having been the placing of the political power of the state chiefly in the hands of the aristocracy. The Reform Bill of 1832, which has been sometimes called a "second Revolution," transferred that power to the middle classes.[317] And what may be called the logical sequence of the later measures is the contrary of that which was designed to flow from the earlier ones. The changes which were effected in 1688 were intended to promote, and were believed to have insured, stability; to have established institutions of a permanent character, as far as human affairs can be invested with permanency. And down to the death of George II. the policy of succeeding ministers, of whom Walpole may be taken as the type, as he was unquestionably the most able, aimed chiefly at keeping things as they were. _Quieta non movere_. The Peerage Bill, proposed by a Prime-minister thirty years after the Revolution, was but an exaggerated instance of the perseverance with which that object was kept in view. But the Reform Bill of 1832, like the Emancipation Act which preceded it, on the contrary, contained in itself, in its very principle, the seeds and elements of farther change. The Emancipation Act, following and combined with the repeal of the Test Act, rendered it almost inevitable that religious toleration would in time be extended to all persuasions, even to those adverse to Christianity. And the Reform Bill, as has been already pointed out, by the principles on which it based its limitations of the franchise, laid the foundation for farther and repeated revision and modification.[318] The consequence is, that the aim of statesmen of the present day differs from that which was pursued by their predecessors. The statesman of the present day can no longer hope to avoid farther changes, and must, therefore, be content to direct his energies to the more difficult task of making them moderate and safe, consistent with the preservation of that balance of powers to which the country owes the liberty and happiness which it has hitherto enjoyed. It is in this point of view that the diffusion of education, beyond the blessing which it confers on the individual, is of especial importance to the state. Political theorists affirm that all men have an equal right to political power--to that amount, at least, of political power which is conferred by a vote at elections. Men of practical common-sense affirm that no one has a right to power of any kind, unless he can be trusted to forbear employing it to the injury of his fellow-creatures or of himself. And the only safeguard and security for the proper exercise of political power is sound and enlightened education. It is unnecessary to dwell on this point, because our statesmen of both parties (to their honor) give constant proof of their deep conviction of its importance. But, in closing our remarks, it may be allowable to point out the political lesson which, above all others, the teachers of the masses should seek to inculcate on their pupils. The art of government, and each measure of government, is, above all other things, the two-sided shield. There are so many plausible arguments which may be advanced on each side of almost every question of policy, that no candid man will severely condemn him who in such disputable matters forms an opinion different from his own. Age and experience are worse than valueless if they do not teach a man to think better of his kind; and the history of the period which we have been considering teaches no lesson more forcibly than this, that the great majority of educated men, and especially of our leading statesmen, are actuated by honest and patriotic motives. And we would presume to urge that more important than a correct estimate of any one transaction of the past, or even of any one measure to influence the future, is the habit of putting a candid, and therefore a favorable, construction on the characters and intentions of those to whom from time to time the conduct of the affairs of the nation is intrusted. Notes: [Footnote 276: "Life of Palmerston," vol. i., c. vii.] [Footnote 277: "Life of the Prince Consort," ii, 303.] [Footnote 278: _Ibid_., p. 412.] [Footnote 279: Amos, "Fifty Years of the English Constitution," p. 289.] [Footnote 280: "Past Gleanings," i., 242.] [Footnote 281: "Life of the Prince Consort," iv., 458.] [Footnote 282: 219 to 210.] [Footnote 283: "Life of the Prince Consort," v., 100.] [Footnote 284: _Ibid_., p. 148.] [Footnote 285: "Life of Pitt," by Earl Stanhope, iii., 210.] [Footnote 286: "Life of the Prince Consort," iv., 329.] [Footnote 287: _Ibid._, p. 366.] [Footnote 288: "Constitutional History," iii., 319, 3d edition.] [Footnote 289: It should be added that, on a subsequent occasion, Mr. Roundell Palmer, member for Plymouth (now Lord Chancellor Selborne, and even then in the enjoyment of the highest professional reputation), declared his opinion to be in favor of the legality and constitutional propriety of the proceeding.] [Footnote 290: To illustrate this position, Lord Lyndhurst said: "The sovereign may by his prerogative, if he thinks proper, create a hundred peers with descendible qualities in the course of a day. That would be consistent with the prerogative, and would be perfectly legal; but everybody must feel, and everybody must know, that such an exercise of the undoubted prerogative of the crown would be a flagrant violation of the principles of the constitution. In the same manner the sovereign might place the Great Seal in the hands of a layman wholly unacquainted with the laws of the country. That also would be a flagrant violation of the constitution of this country."--Hansard's _Parliamentary Debates_, cxl., February 7, 1856. In the same debate Lord Derby defined "prerogative" as "the power of doing that which is beside the law." Hallam, in discussing the prosecution of Sir Edward Hales, fully recognizes the principle contended for by Lord Lyndhurst, saying that "it is by no means evident that the decision of the judges" in that case "was against law," but proceeding to show that "the unadvised assertion in a court of law" of such an exercise of the prerogative "may be said to have sealed the condemnation of the house of Stuart."-- _Constitutional History_, vol. iii., c. xiv., p. 86.] [Footnote 291: In the reign of Richard II. the Earl of Oxford had been made Marquis of Dublin for life, but he already had a seat in the House as Earl. Henry V. had originally made the peerages of his brothers, the Dukes of Bedford and Gloucester, life peerages; but these were afterward surrendered and regranted "in the usual descendible form," so that they rather made against the present case than for it. Henry VIII. had created the Prince of Thomond Earl of Thomond for his life, but he had at the same time granted him the barony of Inchiquin "for himself and his heirs forever." It was also alleged that these life peerages had not been conferred by the King alone, but by the King with the authority and consent of Parliament, "these significant words being found in the patents."] [Footnote 292: The division was 153 to 133. Some years afterward, however, a clause in the act, which created a new appellate jurisdiction, empowered the sovereign to create peerages of this limited character, one of the clauses providing that "every Lord of Appeal in Ordinary should be entitled during his life to rank as a Baron by such style as her Majesty may be pleased to appoint, and shall during the time that he continues in office as a Lord of Appeal in Ordinary, and no longer be entitled to a writ of summons to attend, sit, and vote in the House of Lords. His dignity as a Lord of Parliament shall not descend to his heirs." As this act was passed long after the period at which the present volume closes, it does not belong to the writer to examine how far this act, in providing that every Lord of Appeal shall for the time rank as a Baron (the Lords of Appeal being, of course, appointed by the crown), is entitled to be spoken of as introducing a great constitutional innovation, big with future consequences, as it has been described by some writers.] [Footnote 293: In one notorious instance, that of the Earl of Bristol (_confer_ Hallam, i., 518), in the time of Charles I., the House of Lords had interfered and compelled the issue of the writ; their action forming a precedent for their right of interference in such matters, which in the present case the Lord Chancellor denied.] [Footnote 294: The grant of a pension of £1000 a year, with a baronetcy, to General Havelock, and more recently to Sir F. Roberts, are, it is believed, the only exceptions to this rule.] [Footnote 295: Bishop Lonsdale, of Lichfield, in reference to Simon Magus, from whose offer of money to the Apostles the offence derives its name, denying that there was any similarity between his sin and the act of purchasing an advowson or presentation, remarked that it might just as fitly be called magic as simony.] [Footnote 296: It has been, and will probably continue to be, a matter of dispute whether the first conception and plan of the insurrection originated with the restless boldness of the Mohammedans or the deeper fanaticism of the Hindoos. It is notorious that the prophecy that a century had been assigned by the Almighty as the allotted period of our supremacy in India had for many years been circulated among both; and, though the conspiracy was at first generally attributed to the Mohammedans, the argument that the period from the battle of Plassy, in 1757, to the outbreak in 1857, though an exact century according to the Hindoo calendar, is three years longer according to the Mohammedan computation, seems an almost irresistible proof that the Brahmins were its original authors. Sir John Kaye, in his "History of the Sepoy War," at the end of book iii., c. iii., prints the following note, as furnished to him by Mr. E.A. Reade, a gentleman of long experience in India: "I do not think I ever met one man in a hundred that did not give the Mohammedans credit for this prediction. I fully believe that the notion of change after a century of tenure was general, and I can testify, with others, to have heard of the prediction at least a quarter of a century previously. But, call it a prediction or a superstition, the credit of it must, I think, be given to the Hindoos. If we take the Hejira calendar, 1757 A.D. corresponds with 1171 Hejira; 1857 A.D. with 1274 Hejira; whereas, by the lunisolar year of the Sumbut, 1757 is 1814 Sumhut, and 1857 is 1914 Sumbut."] [Footnote 297: It is worthy of remark that, as early as 1829, the Earl of Ellenborough, then President of the Board of Control, had come to the conclusion that the Company was no longer competent to govern so vast a dominion as that of British India had gradually become. In his Diary, recently published (ii., 131), he expresses his firm conviction that, "in substituting the King's government for that of the Company, we shall be conferring a great benefit on India, and effecting the measure which is most likely to retain for England the possession of India;" and from the same work (ii., 61) we learn that Mr. Mountstuart Elphinstone, one of the ablest servants of whom the Company could boast, and who had recently been Governor of Bombay, even while confessing himself prejudiced in favor "of the existing system, under which he had been educated and lived," admitted that "the administration of the government in the King's name would be agreeable to the civil and military services, and to people in England. He doubted whether, as regarded the princes of India, it would signify much, as they now pretty well understood us." See also _ibid_., p. 414.] [Footnote 298: 318 to 173.] [Footnote 299: The whole bill is given in the "Annual Register" for the year 1858, p. 226.] [Footnote 300: See her letter to Lord Derby on the subject, given in the "Life of the Prince Consort," iv., 308; _confer_ also a memorandum of the Prince Consort, _ibid._, p. 310.] [Footnote 301: _Ibid._, p. 106.] [Footnote 302: It should be remarked that the arrangement originally carried out awoke among the European troops of the Company so deep and general a spirit of discontent as at one time threatened to break out in open mutiny; the ground of their dissatisfaction being "the transfer of their services in virtue of an act of Parliament, but without their consent." Accordingly, "on the announcement of the proclamation transferring the possessions of the East India Company to the crown, some of the soldiers of the Company's European force set up a claim for a free discharge or a bounty on re-enlistment." Lord Clyde's recommendation "that a concession should be made" was overruled by the government of India, and "pronounced inadmissible by the law-officers of the crown" in England. The dissatisfaction was allayed for the time by the judicious measures, equally conciliatory and firm, adopted by Lord Clyde, in whom all ranks of both armies felt equal confidence; but eventually the government became convinced of the necessity of granting discharges to every man who wished for one, provided he had not misconducted himself.--Shadwell's _Life of Lord Clyde_, ii., 407-416.] [Footnote 303: See _ante_, p. 385.] [Footnote 304: Stanhope's "Life of Pitt," i., 173.] [Footnote 305: Sir Theodore Martin quotes a passage from a letter of the _Times_ correspondent, giving a report of the effect of the proclamation on the natives: "Genuineness of Asiatic feeling is always a problem, but I have little doubt it is in this instance literally sincere. The people understand an Empress, and did not understand the Company. Moreover, they (I am speaking of the masses) have a very decided notion that the Queen has hanged the Company for offences 'which must have been very great,' and that fact gives hope of future justice."--_Life of the Prince Consort_, iv., 337.] [Footnote 306: The "Annual Register" says that "neither the Emperor nor the Empress was touched;" but Sir Theodore Martin ("Life of the Prince Consort," iv., 155) says that "the Emperor's nose was grazed, and that the Empress received a blow on the left eye which affected it for some time."] [Footnote 307: "Life of the Prince Consort," iv., 156.] [Footnote 308: Speech of Lord Palmerston, February 19.] [Footnote 309: It is remarkable that it was not a very full House, the numbers of the division being only 234 to 215. Many members absented themselves, being equally unwilling to condemn the bill or to approve the silence of the ministry.] [Footnote 310: 268 to 39.] [Footnote 311: "Life of the Prince Consort," v., 131.] [Footnote 312: "Life of the Prince Consort," i., 99.] [Footnote 313: Chapter II., p. 54.] [Footnote 314: It is known, from two letters from Lord Palmerston to the Queen, published in the "Life of the Prince Consort," v., 100--in one, written before the debate in the House of Lords, he expresses a hope that the smallness of the majority in the House of Commons will encourage the Lords to throw it out, and he "is bound in duty to say that, if they do so, they will perform a good public service;" and in another, the day after the division in the Lords, he writes again "that they have done a right and useful thing," adding that the feeling of the public was so strong against the measure, that those in the gallery of the House are said to have joined in the cheers which broke out when the numbers were announced.] [Footnote 315: 433 to 36.] [Footnote 316: See the proceedings of 1700 (Macaulay, "History of England," v., 278; and of 1704, Lord Stanhope's "Reign of Queen Anne," p. 168). The Whig and the Tory writer equally condemn the "Tackers."] [Footnote 317: In the debate on life peerages ("Parliamentary History," cxl., 356), Lord Grey spoke of "that great transfer of political power from one class to another which was accomplished by the Reform Bill" And Lord Campbell, speaking of Lord Grey himself in connection with that measure, says: "His Reform Bill ought to place him in a temple of British worthies by the side of Lord Somers, for it wisely remodelled the constitution, and it is hardly less important than the Bill of Rights."--_Life of Lord Campbell_, ii., 201.] [Footnote 318: A recent writer, professedly belonging to the Radical party, claims for it the credit of "being the legitimate issue of the Reform Bill of 1832." ("The State of Parties," by J.E. Kebbel, _Nineteenth Century_, March, 1881, p. 497.)] INDEX. ABBOTT, Mr., proposes a census. Addington, Mr., becomes Prime-minister, See Sidmouth. Additional Force Bill. Albert, Prince, marries Queen Victoria. Alien' Act, the. Althorp, Lord, introduces a bill for the reform of the Poor-laws; his speech on the condition of Ireland; invites the House of Commons to rescind a vote. Amelia, Princess, death of. Archdall, Mr., on Catholic Emancipation, note. Association, Catholic, suppression of. BAKER, Mr., moves a resolution on the dismissal of the Coalition Ministry. Barrington, Lord, moves the expulsion of Wilkes. Battle, wager of, abolished. Bernard, trial of, as accomplice of Orsini. Bishoprics, provision for the increase of; exclusion of the occupants of the junior bishoprics from the House of Peers; resignation of, by aged bishops. Blucher, Field-marshal, proposes to put Napoleon to death. Boston, United States, tea ships at, boarded by rioters, and the cargo thrown into the sea. Bristol, Lord, denounces the appointment of the Chief-justice to a seat in the cabinet. Brougham, Mr., afterward Lord Chancellor, the chief adviser of the Queen; defends the ministry for stopping Lord Powis's bill. Brownlow, Mr., opposes Pitt's commercial reforms. Buonaparte, Napoleon, detention of. Burdett, Sir F., carries a motion for repeal of Roman Catholic disabilities. Burke, Mr. B., opposes the expulsion of Wilkes; supports Mr. Grenville's act; complains of the insolence of the House of Peers; supports the repeal of the bill for taxing the American Colonies; on annual Parliaments; brings in a bill for economical reform; his "short account of a late administration"; asserts the right of the House of Peers to examine the public accounts; his violent language on the Regency Bill; member of Lord Rockingham's second ministry; his view of the attachment of the Colonies to England. Bute, Earl of, Prime-minister in 1762; resigns office. CABINET, character of. Camden, Earl of, approves the resolution of the House of Commons; opposes the Royal Marriage Act; supports Lord Chatham's views on the American question; moves the Regency bill of 1788. Campbell, Lord, his "Lives of the Chancellors" referred to; his denunciation of the Declaratory Act; and of the Regency bill; on the Chief-justice in the cabinet. Canada, disquietude in; union of the two provinces. Canning, Lord, grants the right of adoption to the Hindoo feudatories. Canning, Mr. G., attacks the appointment of the Chief-justice to a seat in the cabinet; becomes Prime-minister; dies; his opinion on the question in which House of Parliament the Prime-minister should be. Caroline, Princess of Brunswick, marries the Prince of Wales; investigations into her conduct; she dies. Cave, Mr., punished for publishing reports of debates. Census established. Charlotte, Princess, birth of. Chartists, rise of; outrages of, at Birmingham and Newport. Chatham, Earl of, Secretary of State in 1760; Lord Privy Seal in 1767; supports Lord Rockingham's resolution on the expulsion of Wilkes; denies the power of the Parliament to tax America. Church reform, sketched out by Sir Robert Peel; earned by Lord Melbourne's ministry. Clarence, Duke of, opposes the abolition of the slave trade; his leaning toward the Whigs. Clarendon, Earl of, omits to reply to the despatch of the French minister. Clergy, Roman Catholic, question of endowing the. Colborne, Sir John crushes the insurrection in Canada. Colonies, general grant of constitutions to, in New Zealand, the Cape, and Australia. Commons, House of privileges of, with respect to money bills. Conventicle Act, repeal of. Conway, General, Secretary of State, introduces a bill of indemnity. Cornwallis, Lord, surrenders in America. Corporations, reform of. Crosby, Brass, Mr, Lord Mayor, commits a messenger of the House of Commons, and is himself committed to the Tower. Cumberland, Duke of, marries Mrs Horton. Cust, Sir J, Speaker of the House of Commons. DASHWOOD, Sir F., his revels at Medmenham Abbey. Declaratory Act. De Grey, Mr, Attorney-general, supports the resolutions against Wilkes. Denbigh, Lord, defends the employment of Hanoverian troops at Gibraltar. Denman, Lord Chief justice, his charge to the jury in the case of Stockdale v. Hansard. Disraeli, Mr B, his act for the trial of election petitions; he denounces Sir Robert Peel for not resigning when defeated on the sugar-duties; condemns Lord Clarendon's omission to reply to the French despatch; supports the House of Lords on the paper duties. Dowdeswell, Mr, opposes the Royal Marriage Act. Dundas, Mr, moves an amendment to Mr Dunning's resolution. Dunning, Mr, afterward Lord Ashburton, supports Mr Glenvilles act; criticizes a resolution on the influence of the crown. Dunham, Lord, Governor of Canada. EDUCATION, influence of the penal laws on in Ireland. Eldon, Lord, on the coronation oath in connection with the Catholic question; on the detention of Napoleon; on life peerages. Elgin, Lord, Governor general of Canada. Ellenborough, Lord, supports the Additional Force Bill; becomes a member of the Cabinet; is recalled from the government of India by the Company. Emancipation of Roman Catholics designed by Pitt; concurred by the Duke of Wellington. Erskine, Lord, as Chancellor, presides over the impeachment of Lord Melville; resists Lord Sidmouth's Six Acts. FITZGERALD, LORD E., opposes the English government. Fitzgerald, Mr Vesey, is defeated in Clare. Fitzgibbon, Mr (afterward Lord Clare), opposes the convention of delegates in Dublin; Attorney-general in Ireland, prosecutes the sheriff of Dublin; supports the Regency bill. Fitzwilliam, Earl, is dismissed from the Lord-lieutenancy of Yorkshire. Five Mile Act repealed. Fox, Mr C., opposes Mr Grenville's act; on the privileges claimed by the House of Commons respecting money-bills; _note_, on Parliamentary reform and annual Parliaments; urges the appointment as Prime-Minister of the Duke of Portland; resigns office; becomes Secretary of State; his India Bill; violence of his attacks on Pitt at the beginning of his ministry; his opinions on Colonial policy; denies the Prince's marriage; opposes the Regency bill; opposes the Alien Act and other bills; opposes Pitt's commercial reforms; becomes Secretary of State; supports the abolition of the slave trade; dies. France, new revolution in 1848. Franklin, Dr, is examined by the House of Commons on Mr Glenville's measures of taxation. GEORGE III., state of affairs at the accession of; illness of in 1764; firmness in the Gordon riots; becomes deranged; is attacked on the street; resists the relaxation of Catholic restrictions; becomes permanently deranged; dies; character of his reign. George IV. succeeds to the throne. Gladstone, Mr W.E., opposes the fortification of the dockyards; proposes to repeal the paper-duties; carries the repeal of the paper-duties; desires to weaken the power of the House of Lords. Gloucester, Duke of, marries Lady Waldegrave. Gordon, Lord George, the Gordon riots. Goulburn, Mr. H, is Chancellor of the Exchequer. Grafton, Duke of, Prime-minister in 1767; disapproves of American taxation. Graham, Sir J., as Home-secretary, orders the opening of letters. Grampound disfranchised. Granville, Earl, defends life peerages. Grattan, Mr. H., moves the repeal of Poynings' Act; opposes Pitt's commercial reforms; opposes Pitt's Regency bill. Grenville, Mr. G., becomes Prime minister; opposes the expulsion of Wilkes; brings in a bill for the investigation of election petitions; imposes taxes on the North American Colonies. Grenville, Lord, introduces the Alien Bill; opposes the Additional Force Bill; brings in a bill for the abolition of the slave trade; refuses a seat in the cabinet in 1812. Grey, Mr. (afterward Earl), opposes the Regency bill; opposes the Alien Act; opposes the union with Ireland; proposes to diminish the number of members of the House of Commons; opposes the abolition of slavery; refuses a seat in the cabinet in 1812; becomes Prime minister; his ministry brings in Reform Bill; defends a proposed creation of peers; mentions the sovereign's opinion unconstitutionally; letters from office. Grey, Earl (son of the preceding), his doctrine on the true principles of colonial government; on life peerages. Gower, Lord F.L., carries a resolution for the endowment of the Roman Catholic clergy. Girizot, M., Foreign Secretary in France. HALIFAX, Earl of, issues a general warrant against the publishers, etc., of _The North Briton_. Hanoverian troops, employment of, at Gibraltar. Hansard, Mr., publishes the Parliamentary debates. Hardy, General, taken prisoner by Sir J. Warren. Hill, Mr. Roland, proposes a reform of the Post-office. Hillsborough, Lord, writes a circular letter to the North American Colonies. Hoche, General, sails for Ireland. Holdernesse, Earl of, Secretary of State in 1760. Holland, Lord, opposes the Regency Bill. Holt, Chief justice, his decision on the question of slavery. Holsmann, Mr., supports the House of Lords on the paper duties. Humbert, General, taken prisoner in Mayo. INDIA, Fox's India Bill; Pitt's India Bill; Mutiny in; transfer of the authority of the Company to the crown; establishment of the Order of the Star of India; is visited by the Prince of Wales. Ireland, affairs of; connection with France; rebellion in. JAMAICA, planters in, compensated for the diminution of the value of their property by the abolition of slavery; disturbances in; its constitution is suspended. Judges, new tenure of their office. KING, the, cannot be a witness in any legal proceeding. LABOUCHERE, Mr. H., reproaches Sir Robert Peel for not resigning. Leopold, King of Belgium, points of the insufficiency of the description of Prince Albert. Lewis, Sir. G.C., speech on the history and power of the East India Company. Liverpool, Lord, earnest for the universal abolition of the slave trade; becomes Prime minister; makes the Catholic question an open question in the cabinet; brings in, and subsequently withdraws, a "Bill of Pains and Penalties"; against the Queen; attacked by apoplexy and dies; contemplates an increased grant to Maynooth. Lopes, Sir M., procures the return of Mr. Pool for Westbury. Louise, Princess, marriage of. Lowther, Sir John, obtains a grant of Inglewood Forest. Luttrell, Mr., is declared elected for Middlesex. Lyndhurst, Lord, carries an amendment on the Reform Bill; introduces a Regency bill. MACINTOSH, Sir J., applies himself to mitigate the severity of the law. Mahon, Lord, brings in a bill to diminish the expenses of elections. Mansfield, Lord, condemns general warrants; insists on the necessity of a bill of indemnity; vindicates the supremacy of Parliament; his house is burnt by the rioters in 1780. Martin, Mr., wounds Wilkes in a duel. Massachusetts, riots in. Maynooth, foundation of a college at; is enlarged and more fully endowed. Melbourne, Lord, becomes Prime-minister; resigns; resumes office; mismanages the arrangements for Prince Albert. Melville, Lord, is impeached. Metternich, Prince, is driven from Vienna. Miles, Mr., defeats the government on the sugar-duties. Moira, Lord, employed by the Regent to negotiate with the Whig leaders in 1812. Money-bills, power of the House of Lords as to. Montesquieu, M. de, his opinion of the English constitution. Montmorin, M., Wilberforce writes to him on the subject of the slave-trade. NAPOLEON, Louis, is elected President of the French Republic; his _coup d'état_; conspiracy against. Navigation laws, the, repeal of. Nelson, Lord, his victory at Copenhagen. Newcastle, Duke of, Prime minister in 1760. New Shoreham, disfranchisement of for bribery. Newspapers, tax on, reduced and afterward abolished. Nicholas, Emperor of Russia, writes to the Queen. Normanby, Lord, ambassador in Paris, complains of Lord Palmerston. North, Lord, supports the decision in favor of Mr. Luttrell; opposes Mr. Grenville's act; opposes Mr. Seymour's bill to limit the _Nullum Tempus_ Act; opposes reform of Parliament; rejects the demands of Ireland. Northington, Lord C., defends the embargo on corn; indicates the supremacy of Parliament. _Nullum Tempus_ Act, the, extended. O'CONNELL, Mr. D., is returned for Clare; is chief of the Catholic Association. Octennial act for Ireland. "Olive Branch, the," Onslow, Colonel, complains of the publication of the debates. Orsini, conspiracy of. PALMERSTON, Lord, is dismissed from the Foreign-office; introduces the bill for the transfer of the government of India to the crown; writes to the Queen on the abolition of the authority of the East India Company; is defeated on the Conspiracy Bill and resigns; returns to office; disapproves of the reduction of the paper-duty; desires to uphold the House of Lords. Papineau. M., organizes an insurrection in Canada. Parke, Sir J., is created a peer for life. Parliament, first meeting of the United. Peel, Sir Robert, responsible for the change of ministry in 1834; becomes Home-secretary; resigns his seat for Oxford and fails to be re-elected; impropriety of his resignation; speech on introducing the bill for Catholic Emancipation; becomes Prime-minister; declines to form an administration in 1839; supports Lord J. Russell's resolutions in the case of Stockdale _v._ Hansard; his opinion on the question in which House the Prime-minister should be; becomes Prime-minister in 1841; revises the commercial tariff; suspends the Corn-law; causes its abolition. Peel, Colonel, organizes the Volunteers. Peerages, life, legality of. Peers, the House of, strikes out of a corn bill some clauses giving bounties; their right to inquire into the public expenditure asserted by Lord Camden and others; their privileges as to money-bills; provisions as to Irish peers in the Act of Union; proposed creation of peers to carry the Reform Bill considered; the House of Peers rejects the abolition of the paper-duty. Penal laws, in Ireland; repeal of; in the United Kingdom. Penu, Mr., sent from America to England with "the Olive Branch." Perceval, Mr., becomes Prime-minister; proposes a Regency bill; is murdered. Percy, Lord, proposes the entire abolition of slavery. Persigny, M. de, French Secretary of State, his despatch on Orsini's conspiracy. Pigott, Sir A., brings in a bill on the slave-trade. Pitt, see Earl of Chatham. Pitt, Mr. T., denounces the influence of the crown. Pitt, Mr. W., on the privileges of House of Commons respecting money-bills; _note_; becomes Prime-minister; his long struggle against, and eventual defeat of the Opposition; comparisons between his father and him; his India bill; his Quebec bill; his Regency bill; founds Maynouth; carries the Irish Union; resigns on the Catholic question. Plunkett, Mr., opposes the Irish Union. Ponsonby, Mr. G., condemns the policy of open questions. Poor-law, the, reform of. Portland, Duke of, becomes Prime-minister; again. Post-office, reform of; letters opened by the order of the Secretary of State. Powis, Earl, brings in a bill to preserve the Welsh sees. Pownall, Governor, introduces a corn bill. Poynings' Act; repeal of. RADETSKY, MARSHAL, his campaign in North Italy. Reform of Parliament, Alderman Sawbridge proposes a measure of; Mr. Pitt brings in a bill for; agitation for, in 1818; introduced and carried by Lord Grey's administration; the people indifferent to farther reform. Regency bill of 1764; of 1840; former Regency bills had been passed in the reigns of Edward III., Richard II., Henry VI., and George II.; in Ireland; bill of 1810. Registration, extension of, 342. Rice, Mr. Spring, as Chancellor of the Exchequer, introduces Post-office reform; as Lord Monteagle proposes the rejection of the paper-duty bill. Roberts, Mr., returning officer for New Shoreham. Rochfort, Lord, introduces the Royal Marriage Act. Rockingham, Marquis of, Prime-minister in 1768; moves a resolution condemning the proceedings against Wilkes; Prime-minister a second time; repeals the American taxes; disapproves of the employment of Hanoverian troops at Gibraltar; wisdom of his policy toward America; his speech on the influence of the crown; becomes Prime-minister a second time. Rolle, Mr., moots the question of the Prince's marriage. Romilly, Sir S., opposes the Regency bill; applies himself to reforms of the law. Rose, Mr., opposes Sir A. Pigott's bill on the slave-trade. Russell, Lord J., his opinion on Fox's conduct in Opposition; on the Regency bill; carries the repeal of the Test Act; introduces the Reform Bill; introduces a bill for municipal reform; his resolutions in the case of Stockdale v. Hansard; becomes Prime--minister. Russia, war with. SANDWICH, EARL OF, denounces Wilkes's "Essay on Woman." Sarsfield, General, takes refuge in France. Savile, Sir G., his bill for the limitation of the _Nullum Tempus_ Act. Seaforth, Lord, reports of the treatment of slaves in Barbadoes. Seditious Meetings Act. Shelburne, Lord, denounces the employment of Hanoverian troops at Gibraltar; becomes Prime-minister. Sheridan, Mr. R., his language on the Prince's marriage; opposes the Alien Act; conceals Lord Yarmouth's intention to resign. Sidmouth, Lord, as Home-secretary, introduces six bills for the suppression of sedition; resigns office. Slavery, abolition of. Slave-trade, abolition of. Smith, Mr. W., M.P. for Norwich, on repeal of the Five Mile Act. Somersett, is released by Lord Mansfield. Stamp Act, imposed on the American Colonies by Mr. Grenville; repealed by Lord Rockingham. Stanley, Mr., afterward Lord, and afterward Lord Derby, denounces the Catholic Association; brings in a bill for the abolition of slavery; fails in the attempt to form a ministry in 1845; becomes Prime-minister in 1852; proposes a committee on life peerages; becomes Prime-minister; resigns. St. Vincent, Lord, opposes the abolition of the slave-trade. Stockdale, Mr., brings an action against Messrs. Hansard. Sugar-duties, Sir Robert Peel's ministry is defeated on a reduction of. Sussex, Duke of, protests against some clauses of the Regency Act. Sydenham, Lord, Governor-general of Canada. TANDY, NAPPER, proposes a congress. Temple, Earl, his interview with George III. Test and Corporation Acts are repealed. Thurlow, Mr., afterward Lord Chancellor, on the case of Wilkes; defends the employment of Hanoverian troops at Gibraltar; denounces Fox's India Bill; approves of the King's employment of Lord Temple. Tone, Wolfe, commits suicide. Townsend, Lord, Lord-lieutenant of Ireland. Townsend, Mr. C., re-imposes taxes on North America. Traitorous Correspondence Bill. Troy, Dr., petitions for a Roman Catholic college in Ireland. UNION, the Irish. Union with Scotland, obstacles to, and advantages resulting from. VICTORIA, Queen, succeeds to the throne; marries; her careful exercise of her duties; draws up a memorandum for the guidance of the ministers; writes to foreign sovereigns. Victoria, the province of, grant of a constitution to. Villiers, Mr. C., advocates the repeal of the Corn-laws. Volunteers, rise of the Irish, 158; rise of the English. WALES, Prince or, son of George III., his conduct and establishment; marries Mrs. Fitzherbert; is attacked in the streets; See George IV. Wales, Prince of, son of the Queen, visits India. Walpole, Sir R., the case of; on election petitions; refuses to repeal the Test Act; his general policy. Walpole, Mr. Spencer, supports the Conspiracy Bill. Warburton, Bishop of Gloucester, denounces Wilkes. Ward, Mr., his motion on the appropriation of Church funds. Wedderburn, Mr., on the case of Wilkes; supports Mr. Grenville's act; his opinion on the Riot Act; the chief legal adviser of the Prince of Wales; suggests the Traitorous Correspondence Bill; excites the King to resist the removal of Catholic disabilities. Wellesley, Marquis, proposed to be appointed Prime-minister. Wellington, Lord, afterward Duke of, his victories in the Peninsula and in France; becomes Commander-in-chief; advises the King to decline dining with the Lord Mayor; fails in the endeavor to form an administration; becomes temporary Prime-minister, holding several offices; condemns the recall of Lord Ellenborough. Westmoreland, Lord, opposes the abolition of the slave-trade. Wetherall, Sir Charles, is attacked at Bristol. Weymouth, Lord, Secretary of State, writes a letter to the Surrey magistrates. Whately, Archbishop, his opinion on the Lord-lieutenancy of Ireland; _note_. Whitbread, Mr., promotes the impeachment of Lord Melville. Wilberforce, Mr. W., proposes the admission of Roman Catholics to the militia; devotes himself to the abolition of the slave-trade. Wilkes, Mr., sets up _The North Briton_; criticises the King's speech; is apprehended; is expelled the House of Commons for printing the "Essay on Woman;" is elected for Middlesex, expelled, and re-elected; as Lord Mayor behaves with spirit during the Gordon riots; procures the expunction of the resolutions against him. William IV., his conduct on the Reform Bill; dies. Windham, Mr., brings in a bill for reenforcing the army. Wolseley, Sir C., is elected M.P. by a Birmingham convention. YARMOUTH, Earl of, Lord Chamberlain. THE END. 
1404	----	THE FEDERALIST PAPERS By Alexander Hamilton, John Jay, and James Madison FEDERALIST No. 1 General Introduction For the Independent Journal. Saturday, October 27, 1787 HAMILTON To the People of the State of New York: AFTER an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind. This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth. Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government. It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable--the honest errors of minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution. And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. You will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new Constitution. Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth. I propose, in a series of papers, to discuss the following interesting particulars: THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT ITS ANALOGY TO YOUR OWN STATE CONSTITUTION and lastly, THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY. In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention. It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.(1) This doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address. PUBLIUS 1. The same idea, tracing the arguments to their consequences, is held out in several of the late publications against the new Constitution. FEDERALIST No. 2 Concerning Dangers from Foreign Force and Influence For the Independent Journal. Wednesday, October 31, 1787 JAY To the People of the State of New York: WHEN the people of America reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it, will be evident. Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government. It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. But politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the States into distinct confederacies or sovereignties. However extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it formerly, are at present of the number. Whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy. It has often given me pleasure to observe that independent America was not composed of detached and distant territories, but that one connected, fertile, wide-spreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities. With equal pleasure I have as often taken notice that Providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence. This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties. Similar sentiments have hitherto prevailed among all orders and denominations of men among us. To all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states. A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and well-balanced government for a free people. It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer. This intelligent people perceived and regretted these defects. Still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being persuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice, convened the late convention at Philadelphia, to take that important subject under consideration. This convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils. Admit, for so is the fact, that this plan is only RECOMMENDED, not imposed, yet let it be remembered that it is neither recommended to BLIND approbation, nor to BLIND reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive. But this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. Experience on a former occasion teaches us not to be too sanguine in such hopes. It is not yet forgotten that well-grounded apprehensions of imminent danger induced the people of America to form the memorable Congress of 1774. That body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures. Not only many of the officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to persuade the people to reject the advice of that patriotic Congress. Many, indeed, were deceived and deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so. They considered that the Congress was composed of many wise and experienced men. That, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information. That, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. That they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable. These and similar considerations then induced the people to rely greatly on the judgment and integrity of the Congress; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. But if the people at large had reason to confide in the men of that Congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that Congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience. It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of America depended on its Union. To preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union? Or why is it suggested that three or four confederacies would be better than one? I am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union rests on great and weighty reasons, which I shall endeavor to develop and explain in some ensuing papers. They who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the Union in the utmost jeopardy. That certainly would be the case, and I sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet: "FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS." PUBLIUS FEDERALIST No. 3 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. Saturday, November 3, 1787 JAY To the People of the State of New York: IT IS not a new observation that the people of any country (if, like the Americans, intelligent and wellinformed) seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests. That consideration naturally tends to create great respect for the high opinion which the people of America have so long and uniformly entertained of the importance of their continuing firmly united under one federal government, vested with sufficient powers for all general and national purposes. The more attentively I consider and investigate the reasons which appear to have given birth to this opinion, the more I become convinced that they are cogent and conclusive. Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their SAFETY seems to be the first. The SAFETY of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively. At present I mean only to consider it as it respects security for the preservation of peace and tranquillity, as well as against dangers from FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE KIND arising from domestic causes. As the former of these comes first in order, it is proper it should be the first discussed. Let us therefore proceed to examine whether the people are not right in their opinion that a cordial Union, under an efficient national government, affords them the best security that can be devised against HOSTILITIES from abroad. The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether REAL or PRETENDED, which PROVOKE or INVITE them. If this remark be just, it becomes useful to inquire whether so many JUST causes of war are likely to be given by UNITED AMERICA as by DISUNITED America; for if it should turn out that United America will probably give the fewest, then it will follow that in this respect the Union tends most to preserve the people in a state of peace with other nations. The JUST causes of war, for the most part, arise either from violation of treaties or from direct violence. America has already formed treaties with no less than six foreign nations, and all of them, except Prussia, are maritime, and therefore able to annoy and injure us. She has also extensive commerce with Portugal, Spain, and Britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to. It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies. Because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,--especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States. Hence, it will result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual States, and consequently more satisfactory with respect to other nations, as well as more SAFE with respect to us. Because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,--whereas, adjudications on the same points and questions, in thirteen States, or in three or four confederacies, will not always accord or be consistent; and that, as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. The wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended. Because the prospect of present loss or advantage may often tempt the governing party in one or two States to swerve from good faith and justice; but those temptations, not reaching the other States, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. The case of the treaty of peace with Britain adds great weight to this reasoning. Because, even if the governing party in a State should be disposed to resist such temptations, yet as such temptations may, and commonly do, result from circumstances peculiar to the State, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. But the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others. So far, therefore, as either designed or accidental violations of treaties and the laws of nations afford JUST causes of war, they are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the SAFETY of the people. As to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter. Because such violences are more frequently caused by the passions and interests of a part than of the whole; of one or two States than of the Union. Not a single Indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants. The neighborhood of Spanish and British territories, bordering on some States and not on others, naturally confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested. But not only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably. They will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending State. The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them. Besides, it is well known that acknowledgments, explanations, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a State or confederacy of little consideration or power. In the year 1685, the state of Genoa having offended Louis XIV., endeavored to appease him. He demanded that they should send their Doge, or chief magistrate, accompanied by four of their senators, to FRANCE, to ask his pardon and receive his terms. They were obliged to submit to it for the sake of peace. Would he on any occasion either have demanded or have received the like humiliation from Spain, or Britain, or any other POWERFUL nation? PUBLIUS FEDERALIST No. 4 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. Wednesday, November 7, 1787 JAY To the People of the State of New York: MY LAST paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by JUST causes of war given to other nations; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the State governments or the proposed little confederacies. But the safety of the people of America against dangers from FOREIGN force depends not only on their forbearing to give JUST causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to INVITE hostility or insult; for it need not be observed that there are PRETENDED as well as just causes of war. It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. But, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances. With France and with Britain we are rivals in the fisheries, and can supply their markets cheaper than they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish. With them and with most other European nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it. In the trade to China and India, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them. The extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns. Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from the Saint Lawrence on the other; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic. From these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure. The people of America are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. Wisely, therefore, do they consider union and a good national government as necessary to put and keep them in SUCH A SITUATION as, instead of INVITING war, will tend to repress and discourage it. That situation consists in the best possible state of defense, and necessarily depends on the government, the arms, and the resources of the country. As the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever. One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies. What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales? Suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of Great Britain would? We have heard much of the fleets of Britain, and the time may come, if we are wise, when the fleets of America may engage attention. But if one national government, had not so regulated the navigation of Britain as to make it a nursery for seamen--if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. Let England have its navigation and fleet--let Scotland have its navigation and fleet--let Wales have its navigation and fleet--let Ireland have its navigation and fleet--let those four of the constituent parts of the British empire be be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance. Apply these facts to our own case. Leave America divided into thirteen or, if you please, into three or four independent governments--what armies could they raise and pay--what fleets could they ever hope to have? If one was attacked, would the others fly to its succor, and spend their blood and money in its defense? Would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished? Although such conduct would not be wise, it would, nevertheless, be natural. The history of the states of Greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again. But admit that they might be willing to help the invaded State or confederacy. How, and when, and in what proportion shall aids of men and money be afforded? Who shall command the allied armies, and from which of them shall he receive his orders? Who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? Various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people. But whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act toward us accordingly. If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government (each State doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to Britain, another to France, and a third to Spain, and perhaps played off against each other by the three, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves. PUBLIUS FEDERALIST No. 5 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. Saturday, November 10, 1787 JAY To the People of the State of New York: QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the importance of the UNION then forming between England and Scotland, which merit our attention. I shall present the public with one or two extracts from it: "An entire and perfect union will be the solid foundation of lasting peace: It will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. It must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be ENABLED TO RESIST ALL ITS ENEMIES." "We most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only EFFECTUAL way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, USE THEIR UTMOST ENDEAVORS TO PREVENT OR DELAY THIS UNION." It was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves. This subject is copious and cannot easily be exhausted. The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them. Although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. Notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other. Should the people of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being "joined in affection" and free from all apprehension of different "interests," envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuits. Hence, like most other BORDERING nations, they would always be either involved in disputes and war, or live in the constant apprehension of them. The most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? Independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. For it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years. Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. Distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied. The North is generally the region of strength, and many local circumstances render it probable that the most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the NORTHERN HIVE would excite the same ideas and sensations in the more southern parts of America which it formerly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors. They who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., FORMIDABLE ONLY TO EACH OTHER. From these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies. When did the independent states, into which Britain and Spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? The proposed confederacies will be DISTINCT NATIONS. Each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. Different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. Hence it might and probably would happen that the foreign nation with whom the SOUTHERN confederacy might be at war would be the one with whom the NORTHERN confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith. Nay, it is far more probable that in America, as in Europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. Considering our distance from Europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. And here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. How many conquests did the Romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect. Let candid men judge, then, whether the division of America into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations. PUBLIUS FEDERALIST No. 6 Concerning Dangers from Dissensions Between the States For the Independent Journal. Wednesday, November 14, 1787 HAMILTON To the People of the State of New York: THE three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind--those which will in all probability flow from dissensions between the States themselves, and from domestic factions and convulsions. These have been already in some instances slightly anticipated; but they deserve a more particular and more full investigation. A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. To look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages. The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the love of power or the desire of pre-eminence and dominion--the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification. The celebrated Pericles, in compliance with the resentment of a prostitute,(1) at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the SAMMIANS. The same man, stimulated by private pique against the MEGARENSIANS,(2) another nation of Greece, or to avoid a prosecution with which he was threatened as an accomplice of a supposed theft of the statuary Phidias,(3) or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity,(4) or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the PELOPONNESIAN war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the Athenian commonwealth. The ambitious cardinal, who was prime minister to Henry VIII., permitting his vanity to aspire to the triple crown,(5) entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the Emperor Charles V. To secure the favor and interest of this enterprising and powerful monarch, he precipitated England into a war with France, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of Europe in general. For if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the Emperor Charles V., of whose intrigues Wolsey was at once the instrument and the dupe. The influence which the bigotry of one female,(6) the petulance of another,(7) and the cabals of a third,(8) had in the contemporary policy, ferments, and pacifications, of a considerable part of Europe, are topics that have been too often descanted upon not to be generally known. To multiply examples of the agency of personal considerations in the production of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. Those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand in need of such lights to form their opinion either of the reality or extent of that agency. Perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. If Shays had not been a DESPERATE DEBTOR, it is much to be doubted whether Massachusetts would have been plunged into a civil war. But notwithstanding the concurring testimony of experience, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered and alienated from each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord. Is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit? If this be their true interest, have they in fact pursued it? Has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice? Have republics in practice been less addicted to war than monarchies? Are not the former administered by MEN as well as the latter? Are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? Is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? Has commerce hitherto done anything more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory? Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries. Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the commercial kind. Yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times. Sparta was little better than a wellregulated camp; and Rome was never sated of carnage and conquest. Carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. Hannibal had carried her arms into the heart of Italy and to the gates of Rome, before Scipio, in turn, gave him an overthrow in the territories of Carthage, and made a conquest of the commonwealth. Venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other Italian states, Pope Julius II. found means to accomplish that formidable league,(9) which gave a deadly blow to the power and pride of this haughty republic. The provinces of Holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of Europe. They had furious contests with England for the dominion of the sea, and were among the most persevering and most implacable of the opponents of Louis XIV. In the government of Britain the representatives of the people compose one branch of the national legislature. Commerce has been for ages the predominant pursuit of that country. Few nations, nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been engaged have, in numerous instances, proceeded from the people. There have been, if I may so express it, almost as many popular as royal wars. The cries of the nation and the importunities of their representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the State. In that memorable struggle for superiority between the rival houses of AUSTRIA and BOURBON, which so long kept Europe in a flame, it is well known that the antipathies of the English against the French, seconding the ambition, or rather the avarice, of a favorite leader,(10) protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court. The wars of these two last-mentioned nations have in a great measure grown out of commercial considerations,--the desire of supplanting and the fear of being supplanted, either in particular branches of traffic or in the general advantages of trade and navigation, and sometimes even the more culpable desire of sharing in the commerce of other nations without their consent. The last war but between Britain and Spain sprang from the attempts of the British merchants to prosecute an illicit trade with the Spanish main. These unjustifiable practices on their part produced severity on the part of the Spaniards toward the subjects of Great Britain which were not more justifiable, because they exceeded the bounds of a just retaliation and were chargeable with inhumanity and cruelty. Many of the English who were taken on the Spanish coast were sent to dig in the mines of Potosi; and by the usual progress of a spirit of resentment, the innocent were, after a while, confounded with the guilty in indiscriminate punishment. The complaints of the merchants kindled a violent flame throughout the nation, which soon after broke out in the House of Commons, and was communicated from that body to the ministry. Letters of reprisal were granted, and a war ensued, which in its consequences overthrew all the alliances that but twenty years before had been formed with sanguine expectations of the most beneficial fruits. From this summary of what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present confederacy, in a state of separation? Have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape? Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue? Let the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the State of North Carolina, the late menacing disturbances in Pennsylvania, and the actual insurrections and rebellions in Massachusetts, declare--! So far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the States, in the event of disunion, that it has from long observation of the progress of society become a sort of axiom in politics, that vicinity or nearness of situation, constitutes nations natural enemies. An intelligent writer expresses himself on this subject to this effect: "NEIGHBORING NATIONS (says he) are naturally enemies of each other unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors."(11) This passage, at the same time, points out the EVIL and suggests the REMEDY. PUBLIUS 1. Aspasia, vide "Plutarch's Life of Pericles." 2. Ibid. 3. Ibid. 4. Ibid. Phidias was supposed to have stolen some public gold, with the connivance of Pericles, for the embellishment of the statue of Minerva. 5. Worn by the popes. 6. Madame de Maintenon. 7. Duchess of Marlborough. 8. Madame de Pompadour. 9. The League of Cambray, comprehending the Emperor, the King of France, the King of Aragon, and most of the Italian princes and states. 10. The Duke of Marlborough. 11. Vide "Principes des Negociations" par l'Abbé de Mably. FEDERALIST No. 7 The Same Subject Continued (Concerning Dangers from Dissensions Between the States) For the Independent Journal. Thursday, November 15, 1787 HAMILTON To the People of the State of New York: IT IS sometimes asked, with an air of seeming triumph, what inducements could the States have, if disunited, to make war upon each other? It would be a full answer to this question to say--precisely the same inducements which have, at different times, deluged in blood all the nations in the world. But, unfortunately for us, the question admits of a more particular answer. There are causes of differences within our immediate contemplation, of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed. Territorial disputes have at all times been found one of the most fertile sources of hostility among nations. Perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin. This cause would exist among us in full force. We have a vast tract of unsettled territory within the boundaries of the United States. There still are discordant and undecided claims between several of them, and the dissolution of the Union would lay a foundation for similar claims between them all. It is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were ungranted at the time of the Revolution, and which usually went under the name of crown lands. The States within the limits of whose colonial governments they were comprised have claimed them as their property, the others have contended that the rights of the crown in this article devolved upon the Union; especially as to all that part of the Western territory which, either by actual possession, or through the submission of the Indian proprietors, was subjected to the jurisdiction of the king of Great Britain, till it was relinquished in the treaty of peace. This, it has been said, was at all events an acquisition to the Confederacy by compact with a foreign power. It has been the prudent policy of Congress to appease this controversy, by prevailing upon the States to make cessions to the United States for the benefit of the whole. This has been so far accomplished as, under a continuation of the Union, to afford a decided prospect of an amicable termination of the dispute. A dismemberment of the Confederacy, however, would revive this dispute, and would create others on the same subject. At present, a large part of the vacant Western territory is, by cession at least, if not by any anterior right, the common property of the Union. If that were at an end, the States which made the cession, on a principle of federal compromise, would be apt when the motive of the grant had ceased, to reclaim the lands as a reversion. The other States would no doubt insist on a proportion, by right of representation. Their argument would be, that a grant, once made, could not be revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the Confederacy, remained undiminished. If, contrary to probability, it should be admitted by all the States, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. Different principles would be set up by different States for this purpose; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment. In the wide field of Western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. To reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. The circumstances of the dispute between Connecticut and Pennsylvania, respecting the land at Wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. The articles of confederation obliged the parties to submit the matter to the decision of a federal court. The submission was made, and the court decided in favor of Pennsylvania. But Connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. Nothing here said is intended to convey the slightest censure on the conduct of that State. She no doubt sincerely believed herself to have been injured by the decision; and States, like individuals, acquiesce with great reluctance in determinations to their disadvantage. Those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this State and the district of Vermont, can vouch the opposition we experienced, as well from States not interested as from those which were interested in the claim; and can attest the danger to which the peace of the Confederacy might have been exposed, had this State attempted to assert its rights by force. Two motives preponderated in that opposition: one, a jealousy entertained of our future power; and the other, the interest of certain individuals of influence in the neighboring States, who had obtained grants of lands under the actual government of that district. Even the States which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this State, than to establish their own pretensions. These were New Hampshire, Massachusetts, and Connecticut. New Jersey and Rhode Island, upon all occasions, discovered a warm zeal for the independence of Vermont; and Maryland, till alarmed by the appearance of a connection between Canada and that State, entered deeply into the same views. These being small States, saw with an unfriendly eye the perspective of our growing greatness. In a review of these transactions we may trace some of the causes which would be likely to embroil the States with each other, if it should be their unpropitious destiny to become disunited. The competitions of commerce would be another fruitful source of contention. The States less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself. This would occasion distinctions, preferences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of enterprise, which characterizes the commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular States might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars. The opportunities which some States would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary States. The relative situation of New York, Connecticut, and New Jersey would afford an example of this kind. New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other States in the capacity of consumers of what we import. New York would neither be willing nor able to forego this advantage. Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit? Should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? Should we be able to preserve it against the incumbent weight of Connecticut on the one side, and the co-operating pressure of New Jersey on the other? These are questions that temerity alone will answer in the affirmative. The public debt of the Union would be a further cause of collision between the separate States or confederacies. The apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity. How would it be possible to agree upon a rule of apportionment satisfactory to all? There is scarcely any that can be proposed which is entirely free from real objections. These, as usual, would be exaggerated by the adverse interest of the parties. There are even dissimilar views among the States as to the general principle of discharging the public debt. Some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. These would be inclined to magnify the difficulties of a distribution. Others of them, a numerous body of whose citizens are creditors to the public beyond proportion of the State in the total amount of the national debt, would be strenuous for some equitable and effective provision. The procrastinations of the former would excite the resentments of the latter. The settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. The citizens of the States interested would clamour; foreign powers would urge for the satisfaction of their just demands, and the peace of the States would be hazarded to the double contingency of external invasion and internal contention. Suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. Still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some States than upon others. Those which were sufferers by it would naturally seek for a mitigation of the burden. The others would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. Their refusal would be too plausible a pretext to the complaining States to withhold their contributions, not to be embraced with avidity; and the non-compliance of these States with their engagements would be a ground of bitter discussion and altercation. If even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the States would result from a diversity of other causes--the real deficiency of resources; the mismanagement of their finances; accidental disorders in the management of the government; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants. Delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money. Laws in violation of private contracts, as they amount to aggressions on the rights of those States whose citizens are injured by them, may be considered as another probable source of hostility. We are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual States hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. We have observed the disposition to retaliation excited in Connecticut in consequence of the enormities perpetrated by the Legislature of Rhode Island; and we reasonably infer that, in similar cases, under other circumstances, a war, not of PARCHMENT, but of the sword, would chastise such atrocious breaches of moral obligation and social justice. The probability of incompatible alliances between the different States or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. Divide et impera(1) must be the motto of every nation that either hates or fears us.(2) PUBLIUS 1. Divide and command. 2. In order that the whole subject of these papers may as soon as possible be laid before the public, it is proposed to publish them four times a week--on Tuesday in the New York Packet and on Thursday in the Daily Advertiser. FEDERALIST No. 8 The Consequences of Hostilities Between the States From the New York Packet. Tuesday, November 20, 1787. HAMILTON To the People of the State of New York: ASSUMING it therefore as an established truth that the several States, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general Confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation. War between the States, in the first period of their separate existence, would be accompanied with much greater distresses than it commonly is in those countries where regular military establishments have long obtained. The disciplined armies always kept on foot on the continent of Europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. The art of fortification has contributed to the same ends. The nations of Europe are encircled with chains of fortified places, which mutually obstruct invasion. Campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy's country. Similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. Formerly, an invading army would penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received; but now a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more considerable. The history of war, in that quarter of the globe, is no longer a history of nations subdued and empires overturned, but of towns taken and retaken; of battles that decide nothing; of retreats more beneficial than victories; of much effort and little acquisition. In this country the scene would be altogether reversed. The jealousy of military establishments would postpone them as long as possible. The want of fortifications, leaving the frontiers of one state open to another, would facilitate inroads. The populous States would, with little difficulty, overrun their less populous neighbors. Conquests would be as easy to be made as difficult to be retained. War, therefore, would be desultory and predatory. PLUNDER and devastation ever march in the train of irregulars. The calamities of individuals would make the principal figure in the events which would characterize our military exploits. This picture is not too highly wrought; though, I confess, it would not long remain a just one. Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it.(1) Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority. The expedients which have been mentioned would soon give the States or confederacies that made use of them a superiority over their neighbors. Small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. Neither the pride nor the safety of the more important States or confederacies would permit them long to submit to this mortifying and adventitious superiority. They would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. Thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the Old World. This, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard. These are not vague inferences drawn from supposed or speculative defects in a Constitution, the whole power of which is lodged in the hands of a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs. It may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of Greece? Different answers, equally satisfactory, may be given to this question. The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics. The means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility. There is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. The rulers of the former can have no good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. These armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. The laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. The smallness of the army renders the natural strength of the community an overmatch for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people. In a country in the predicament last described, the contrary of all this happens. The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. No motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. There has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. This peculiar felicity of situation has, in a great degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, Britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of Europe, she, like them, would in all probability be, at this day, a victim to the absolute power of a single man. It is possible, though not easy, that the people of that island may be enslaved from other causes; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom. If we are wise enough to preserve the Union we may for ages enjoy an advantage similar to that of an insulated situation. Europe is at a great distance from us. Her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. Extensive military establishments cannot, in this position, be necessary to our security. But if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe--our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other. This is an idea not superficial or futile, but solid and weighty. It deserves the most serious and mature consideration of every prudent and honest man of whatever party. If such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a Constitution, the rejection of which would in all probability put a final period to the Union. The airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formidable. PUBLIUS 1. This objection will be fully examined in its proper place, and it will be shown that the only natural precaution which could have been taken on this subject has been taken; and a much better one than is to be found in any constitution that has been heretofore framed in America, most of which contain no guard at all on this subject. FEDERALIST No. 9 The Union as a Safeguard Against Domestic Faction and Insurrection For the Independent Journal. Wednesday, November 21, 1787 HAMILTON To the People of the State of New York: A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated. From the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. They have decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. Happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. And, I trust, America will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors. But it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. If it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. To this catalogue of circumstances that tend to the amelioration of popular systems of civil government, I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution; I mean the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy. The latter is that which immediately concerns the object under consideration. It will, however, be of use to examine the principle in its application to a single State, which shall be attended to in another place. The utility of a Confederacy, as well to suppress faction and to guard the internal tranquillity of States, as to increase their external force and security, is in reality not a new idea. It has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. The opponents of the plan proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the necessity of a contracted territory for a republican government. But they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. If we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. Some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger States as a desirable thing. Such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of America. Referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the SIZE of the more considerable MEMBERS of the Union, but would not militate against their being all comprehended in one confederate government. And this is the true question, in the discussion of which we are at present interested. So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a confederate republic as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism. "It is very probable," (says he(1)) "that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a CONFEDERATE REPUBLIC." "This form of government is a convention by which several smaller STATES agree to become members of a larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body." "A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences." "If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation." "Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty." "As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies." I have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the Union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. They have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the Union to repress domestic faction and insurrection. A distinction, more subtle than accurate, has been raised between a CONFEDERACY and a CONSOLIDATION of the States. The essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. These positions are, in the main, arbitrary; they are supported neither by principle nor precedent. It has indeed happened, that governments of this kind have generally operated in the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. And it will be clearly shown in the course of this investigation that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government. The definition of a CONFEDERATE REPUBLIC seems simply to be "an assemblage of societies," or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government. In the Lycian confederacy, which consisted of twenty-three CITIES or republics, the largest were entitled to THREE votes in the COMMON COUNCIL, those of the middle class to TWO, and the smallest to ONE. The COMMON COUNCIL had the appointment of all the judges and magistrates of the respective CITIES. This was certainly the most, delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. Yet Montesquieu, speaking of this association, says: "Were I to give a model of an excellent Confederate Republic, it would be that of Lycia." Thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory. PUBLIUS 1. "Spirit of Laws," vol. i., book ix., chap. i. FEDERALIST No. 10 The Same Subject Continued (The Union as a Safeguard Against Domestic Faction and Insurrection) From the Daily Advertiser. Thursday, November 22, 1787. MADISON To the People of the State of New York: AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties. The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets. It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful. From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union. The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations: In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice. In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters. It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures. The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage. The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State. In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists. PUBLIUS FEDERALIST No. 11 The Utility of the Union in Respect to Commercial Relations and a Navy For the Independent Journal. Saturday, November 24, 1787 HAMILTON To the People of the State of New York: THE importance of the Union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. This applies as well to our intercourse with foreign countries as with each other. There are appearances to authorize a supposition that the adventurous spirit, which distinguishes the commercial character of America, has already excited uneasy sensations in several of the maritime powers of Europe. They seem to be apprehensive of our too great interference in that carrying trade, which is the support of their navigation and the foundation of their naval strength. Those of them which have colonies in America look forward to what this country is capable of becoming, with painful solicitude. They foresee the dangers that may threaten their American dominions from the neighborhood of States, which have all the dispositions, and would possess all the means, requisite to the creation of a powerful marine. Impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving us, as far as possible, of an ACTIVE COMMERCE in our own bottoms. This would answer the threefold purpose of preventing our interference in their navigation, of monopolizing the profits of our trade, and of clipping the wings by which we might soar to a dangerous greatness. Did not prudence forbid the detail, it would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers. If we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. By prohibitory regulations, extending, at the same time, throughout the States, we may oblige foreign countries to bid against each other, for the privileges of our markets. This assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people--increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so--to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from America, in the ships of another country. Suppose, for instance, we had a government in America, capable of excluding Great Britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? Would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? When these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. It has been said that prohibitions on our part would produce no change in the system of Britain, because she could prosecute her trade with us through the medium of the Dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. But would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? Would not the principal part of its profits be intercepted by the Dutch, as a compensation for their agency and risk? Would not the mere circumstance of freight occasion a considerable deduction? Would not so circuitous an intercourse facilitate the competitions of other nations, by enhancing the price of British commodities in our markets, and by transferring to other hands the management of this interesting branch of the British commerce? A mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to Britain from such a state of things, conspiring with the pre-possessions of a great part of the nation in favor of the American trade, and with the importunities of the West India islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands elsewhere, from which our trade would derive the most substantial benefits. Such a point gained from the British government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade. A further resource for influencing the conduct of European nations toward us, in this respect, would arise from the establishment of a federal navy. There can be no doubt that the continuance of the Union under an efficient government would put it in our power, at a period not very distant, to create a navy which, if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties. This would be more peculiarly the case in relation to operations in the West Indies. A few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign, on the event of which interests of the greatest magnitude were suspended. Our position is, in this respect, a most commanding one. And if to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the West Indies, it will readily be perceived that a situation so favorable would enable us to bargain with great advantage for commercial privileges. A price would be set not only upon our friendship, but upon our neutrality. By a steady adherence to the Union we may hope, erelong, to become the arbiter of Europe in America, and to be able to incline the balance of European competitions in this part of the world as our interest may dictate. But in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. In a state so insignificant our commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. The rights of neutrality will only be respected when they are defended by an adequate power. A nation, despicable by its weakness, forfeits even the privilege of being neutral. Under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. This situation would even take away the motive to such combinations, by inducing an impracticability of success. An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. We might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature. But in a state of disunion, these combinations might exist and might operate with success. It would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a PASSIVE COMMERCE. We should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. That unequaled spirit of enterprise, which signalizes the genius of the American merchants and navigators, and which is in itself an inexhaustible mine of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world. There are rights of great moment to the trade of America which are rights of the Union--I allude to the fisheries, to the navigation of the Western lakes, and to that of the Mississippi. The dissolution of the Confederacy would give room for delicate questions concerning the future existence of these rights; which the interest of more powerful partners would hardly fail to solve to our disadvantage. The disposition of Spain with regard to the Mississippi needs no comment. France and Britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. They, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. What more natural than that they should be disposed to exclude from the lists such dangerous competitors? This branch of trade ought not to be considered as a partial benefit. All the navigating States may, in different degrees, advantageously participate in it, and under circumstances of a greater extension of mercantile capital, would not be unlikely to do it. As a nursery of seamen, it now is, or when time shall have more nearly assimilated the principles of navigation in the several States, will become, a universal resource. To the establishment of a navy, it must be indispensable. To this great national object, a NAVY, union will contribute in various ways. Every institution will grow and flourish in proportion to the quantity and extent of the means concentred towards its formation and support. A navy of the United States, as it would embrace the resources of all, is an object far less remote than a navy of any single State or partial confederacy, which would only embrace the resources of a single part. It happens, indeed, that different portions of confederated America possess each some peculiar advantage for this essential establishment. The more southern States furnish in greater abundance certain kinds of naval stores--tar, pitch, and turpentine. Their wood for the construction of ships is also of a more solid and lasting texture. The difference in the duration of the ships of which the navy might be composed, if chiefly constructed of Southern wood, would be of signal importance, either in the view of naval strength or of national economy. Some of the Southern and of the Middle States yield a greater plenty of iron, and of better quality. Seamen must chiefly be drawn from the Northern hive. The necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of commerce to the prosperity of a navy. An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. It can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctuations of markets. Particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. The speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the United States would bid fair to be much more favorable than that of the thirteen States without union or with partial unions. It may perhaps be replied to this, that whether the States are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. A unity of commercial, as well as political, interests, can only result from a unity of government. There are other points of view in which this subject might be placed, of a striking and animating kind. But they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. I shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of American affairs. The world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. Africa, Asia, and America, have successively felt her domination. The superiority she has long maintained has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as created for her benefit. Men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in America--that even dogs cease to bark after having breathed awhile in our atmosphere.(1) Facts have too long supported these arrogant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will enable us to do it. Disunion will will add another victim to his triumphs. Let Americans disdain to be the instruments of European greatness! Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world! PUBLIUS "Recherches philosophiques sur les Americains." FEDERALIST No. 12 The Utility of the Union In Respect to Revenue From the New York Packet. Tuesday, November 27, 1787. HAMILTON To the People of the State of New York: THE effects of Union upon the commercial prosperity of the States have been sufficiently delineated. Its tendency to promote the interests of revenue will be the subject of our present inquiry. The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. By multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,--all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils. The often-agitated question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rivalship that once subsisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. It has been found in various countries that, in proportion as commerce has flourished, land has risen in value. And how could it have happened otherwise? Could that which procures a freer vent for the products of the earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state--could that, in fine, which is the faithful handmaid of labor and industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of the objects upon which they are exerted? It is astonishing that so simple a truth should ever have had an adversary; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction. The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. The hereditary dominions of the Emperor of Germany contain a great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues. He has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war. But it is not in this aspect of the subject alone that Union will be seen to conduce to the purpose of revenue. There are other points of view, in which its influence will appear more immediate and decisive. It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the States have remained empty. The popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them. No person acquainted with what happens in other countries will be surprised at this circumstance. In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. Duties on imported articles form a large branch of this latter description. In America, it is evident that we must a long time depend for the means of revenue chiefly on such duties. In most parts of it, excises must be confined within a narrow compass. The genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. The pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the imperceptible agency of taxes on consumption. If these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. And it cannot admit of a serious doubt, that this state of things must rest on the basis of a general Union. As far as this would be conducive to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that source. As far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade. The relative situation of these States; the number of rivers with which they are intersected, and of bays that wash their shores; the facility of communication in every direction; the affinity of language and manners; the familiar habits of intercourse;--all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. The separate States or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. The temper of our governments, for a long time to come, would not permit those rigorous precautions by which the European nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice. In France, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. Mr. Neckar computes the number of these patrols at upwards of twenty thousand. This shows the immense difficulty in preventing that species of traffic, where there is an inland communication, and places in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the States should be placed in a situation, with respect to each other, resembling that of France with respect to her neighbors. The arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country. If, on the contrary, there be but one government pervading all the States, there will be, as to the principal part of our commerce, but ONE SIDE to guard--the ATLANTIC COAST. Vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unlade prior to their coming into port. They would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. An ordinary degree of vigilance would be competent to the prevention of any material infractions upon the rights of the revenue. A few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. And the government having the same interest to provide against violations everywhere, the co-operation of its measures in each State would have a powerful tendency to render them effectual. Here also we should preserve by Union, an advantage which nature holds out to us, and which would be relinquished by separation. The United States lie at a great distance from Europe, and at a considerable distance from all other places with which they would have extensive connections of foreign trade. The passage from them to us, in a few hours, or in a single night, as between the coasts of France and Britain, and of other neighboring nations, would be impracticable. This is a prodigious security against a direct contraband with foreign countries; but a circuitous contraband to one State, through the medium of another, would be both easy and safe. The difference between a direct importation from abroad, and an indirect importation through the channel of a neighboring State, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment. It is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the States separately, or to any partial confederacies. Hitherto, I believe, it may safely be asserted, that these duties have not upon an average exceeded in any State three per cent. In France they are estimated to be about fifteen per cent., and in Britain they exceed this proportion.(1) There seems to be nothing to hinder their being increased in this country to at least treble their present amount. The single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. Upon a ratio to the importation into this State, the whole quantity imported into the United States may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. That article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. There is, perhaps, nothing so much a subject of national extravagance as these spirits. What will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent? A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede. Revenue, therefore, must be had at all events. In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. It has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the States where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. Personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption. In populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals, without much aggregate benefit to the State; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer. As the necessities of the State, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. And as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or its security. Thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. But public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion. PUBLIUS 1. If my memory be right they amount to twenty per cent. FEDERALIST No. 13 Advantage of the Union in Respect to Economy in Government For the Independent Journal. Wednesday, November 28, 1787 HAMILTON To the People of the State of New York: As CONNECTED with the subject of revenue, we may with propriety consider that of economy. The money saved from one object may be usefully applied to another, and there will be so much the less to be drawn from the pockets of the people. If the States are united under one government, there will be but one national civil list to support; if they are divided into several confederacies, there will be as many different national civil lists to be provided for--and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole. The entire separation of the States into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. The ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies--one consisting of the four Northern, another of the four Middle, and a third of the five Southern States. There is little probability that there would be a greater number. According to this distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of Great Britain. No well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institutions than that which has been proposed by the convention. When the dimensions of a State attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent. This idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals; but when we consider that the island of Britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. Civil power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions. The supposition that each confederacy into which the States would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general Union. If we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different States, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. The four Eastern States, from all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. New York, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. There are other obvious reasons that would facilitate her accession to it. New Jersey is too small a State to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. Even Pennsylvania would have strong inducements to join the Northern league. An active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. The more Southern States, from various circumstances, may not think themselves much interested in the encouragement of navigation. They may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. Pennsylvania may not choose to confound her interests in a connection so adverse to her policy. As she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the Southern, rather than towards the stronger power of the Northern, Confederacy. This would give her the fairest chance to avoid being the Flanders of America. Whatever may be the determination of Pennsylvania, if the Northern Confederacy includes New Jersey, there is no likelihood of more than one confederacy to the south of that State. Nothing can be more evident than that the thirteen States will be able to support a national government better than one half, or one third, or any number less than the whole. This reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground. If, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the States would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part. PUBLIUS FEDERALIST No. 14 Objections to the Proposed Constitution From Extent of Territory Answered From the New York Packet. Friday, November 30, 1787. MADISON To the People of the State of New York: WE HAVE seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. All that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the Union embraces. A few observations on this subject will be the more proper, as it is perceived that the adversaries of the new Constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find. The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region. To this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient Greece and modern Italy. Under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory. Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. If Europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration. As the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. Can it be said that the limits of the United States exceed this distance? It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled, and that the members from the most distant States are not chargeable with greater intermissions of attendance than those from the States in the neighborhood of Congress. That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union. The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the south the latitude of thirty-one degrees, on the west the Mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. The southern shore of Lake Erie lies below that latitude. Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. Taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. The mean distance from the Atlantic to the Mississippi does not probably exceed seven hundred and fifty miles. On a comparison of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable. It is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the Union. Favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory. In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction. A second observation to be made is that the immediate object of the federal Constitution is to secure the union of the thirteen primitive States, which we know to be practicable; and to add to them such other States as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. The arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task. Let it be remarked, in the third place, that the intercourse throughout the Union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen States. The communication between the Western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete. A fourth and still more important consideration is, that as almost every State will, on one side or other, be a frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the States which lie at the greatest distance from the heart of the Union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. It may be inconvenient for Georgia, or the States forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. If they should derive less benefit, therefore, from the Union in some respects than the less distant States, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout. I submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellow citizens of one great, respectable, and flourishing empire. Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. No, my countrymen, shut your ears against this unhallowed language. Shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies. And if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in order to preserve our liberties and promote our happiness. But why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness. Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide. PUBLIUS FEDERALIST No. 15 The Insufficiency of the Present Confederation to Preserve the Union For the Independent Journal. Saturday, December 1, 1787 HAMILTON To the People of the State of New York. IN THE course of the preceding papers, I have endeavored, my fellow citizens, to place before you, in a clear and convincing light, the importance of Union to your political safety and happiness. I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. In the sequel of the inquiry through which I propose to accompany you, the truths intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. If the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. It will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch. In pursuance of the plan which I have laid down for the discussion of the subject, the point next in order to be examined is the "insufficiency of the present Confederation to the preservation of the Union." It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution. It must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. The facts that support this opinion are no longer objects of speculation. They have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the Union. We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation. Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? These remain without any proper or satisfactory provision for their discharge. Have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? These are still retained, to the prejudice of our interests, not less than of our rights. Are we in a condition to resent or to repel the aggression? We have neither troops, nor treasury, nor government.(1) Are we even in a condition to remonstrate with dignity? The just imputations on our own faith, in respect to the same treaty, ought first to be removed. Are we entitled by nature and compact to a free participation in the navigation of the Mississippi? Spain excludes us from it. Is public credit an indispensable resource in time of public danger? We seem to have abandoned its cause as desperate and irretrievable. Is commerce of importance to national wealth? Ours is at the lowest point of declension. Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us. Our ambassadors abroad are the mere pageants of mimic sovereignty. Is a violent and unnatural decrease in the value of land a symptom of national distress? The price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. Is private credit the friend and patron of industry? That most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. To shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes? This is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed Constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. Here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity. It is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. This renders a full display of the principal defects of the Confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric. The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist. Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option. It is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new Constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of GOVERNMENT; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy. There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the contracting powers dictate. In the early part of the present century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. With a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion. If the particular States in this country are disposed to stand in a similar relation to each other, and to drop the project of a general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable Abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us. But if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens,--the only proper objects of government. Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it. There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity. In addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. This tendency is not difficult to be accounted for. It has its origin in the love of power. Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. This simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. The reverse of this results from the constitution of human nature. If, therefore, the measures of the Confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. All this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. The same process must be repeated in every member of which the body is constituted; and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. Those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to co-operate in the same views and pursuits. In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete execution of every important measure that proceeds from the Union. It has happened as was to have been foreseen. The measures of the Union have not been executed; the delinquencies of the States have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration, till the States can have time to agree upon a more substantial substitute for the present shadow of a federal government. Things did not come to this desperate extremity at once. The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union. The greater deficiencies of some States furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent States. Why should we do more in proportion than those who are embarked with us in the same political voyage? Why should we consent to bear more than our proper share of the common burden? These were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins. PUBLIUS 1. "I mean for the Union." FEDERALIST No. 16 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) From the New York Packet. Tuesday, December 4, 1787. HAMILTON To the People of the State of New York: THE tendency of the principle of legislation for States, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and particular examination. I shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers. This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war. It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. Specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those States which were not chargeable with any violation or omission of duty. This would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent States. If associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a Confederacy, from the firm union of which they had so much to fear. When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union. This may be considered as the violent death of the Confederacy. Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. It is not probable, considering the genius of this country, that the complying States would often be inclined to support the authority of the Union by engaging in a war against the non-complying States. They would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. And the guilt of all would thus become the security of all. Our past experience has exhibited the operation of this spirit in its full light. There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. In the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. The pretense of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. It is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council. It seems to require no pains to prove that the States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. The resources of the Union would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. Whoever considers the populousness and strength of several of these States singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. A project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity. Even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign States, supported by military coercion, has never been found effectual. It has rarely been attempted to be employed, but against the weaker members; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half. The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States. To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached. The plausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or TO ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage. But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority. If opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the State governments. The magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. As to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. And as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities. PUBLIUS FEDERALIST No. 17 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the Independent Journal. Wednesday, December 5, 1787 HAMILTON To the People of the State of New York: AN OBJECTION, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It may be said that it would tend to render the government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government. But let it be admitted, for argument's sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of the national representatives, or, in other words, the people of the several States, would control the indulgence of so extravagant an appetite. It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence which the State governments if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all federal constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty. The superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed. It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter. This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation. The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light,--I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union. The operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. Relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment. The reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them. Though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. There was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of INFERIOR vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons of whom they held it. Each principal vassal was a kind of sovereign, within his particular demesnes. The consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. The power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. This period of European affairs is emphatically styled by historians, the times of feudal anarchy. When the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority. But in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or States. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. The barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority. This is not an assertion founded merely in speculation or conjecture. Among other illustrations of its truth which might be cited, Scotland will furnish a cogent example. The spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with England subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom. The separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government. It will be well if they are not able to counteract its legitimate and necessary authority. The points of similitude consist in the rivalship of power, applicable to both, and in the CONCENTRATION of large portions of the strength of the community into particular DEPOSITORIES, in one case at the disposal of individuals, in the other case at the disposal of political bodies. A concise review of the events that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. This review shall form the subject of some ensuing papers. PUBLIUS FEDERALIST No. 18 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the New York Packet. Friday, December 7, 1787 MADISON, with HAMILTON To the People of the State of New York: AMONG the confederacies of antiquity, the most considerable was that of the Grecian republics, associated under the Amphictyonic council. From the best accounts transmitted of this celebrated institution, it bore a very instructive analogy to the present Confederation of the American States. The members retained the character of independent and sovereign states, and had equal votes in the federal council. This council had a general authority to propose and resolve whatever it judged necessary for the common welfare of Greece; to declare and carry on war; to decide, in the last resort, all controversies between the members; to fine the aggressing party; to employ the whole force of the confederacy against the disobedient; to admit new members. The Amphictyons were the guardians of religion, and of the immense riches belonging to the temple of Delphos, where they had the right of jurisdiction in controversies between the inhabitants and those who came to consult the oracle. As a further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple. In theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. In several material instances, they exceed the powers enumerated in the articles of confederation. The Amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions. Very different, nevertheless, was the experiment from the theory. The powers, like those of the present Congress, were administered by deputies appointed wholly by the cities in their political capacities; and exercised over them in the same capacities. Hence the weakness, the disorders, and finally the destruction of the confederacy. The more powerful members, instead of being kept in awe and subordination, tyrannized successively over all the rest. Athens, as we learn from Demosthenes, was the arbiter of Greece seventy-three years. The Lacedaemonians next governed it twenty-nine years; at a subsequent period, after the battle of Leuctra, the Thebans had their turn of domination. It happened but too often, according to Plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party. Even in the midst of defensive and dangerous wars with Persia and Macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. The intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage. After the conclusion of the war with Xerxes, it appears that the Lacedaemonians required that a number of the cities should be turned out of the confederacy for the unfaithful part they had acted. The Athenians, finding that the Lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. This piece of history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. The smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common center, had become, in fact, satellites of the orbs of primary magnitude. Had the Greeks, says the Abbe Milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the Persian arms, to establish such a reformation. Instead of this obvious policy, Athens and Sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies; and did each other infinitely more mischief than they had suffered from Xerxes. Their mutual jealousies, fears, hatreds, and injuries ended in the celebrated Peloponnesian war; which itself ended in the ruin and slavery of the Athenians who had begun it. As a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad. The Phocians having ploughed up some consecrated ground belonging to the temple of Apollo, the Amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. The Phocians, being abetted by Athens and Sparta, refused to submit to the decree. The Thebans, with others of the cities, undertook to maintain the authority of the Amphictyons, and to avenge the violated god. The latter, being the weaker party, invited the assistance of Philip of Macedon, who had secretly fostered the contest. Philip gladly seized the opportunity of executing the designs he had long planned against the liberties of Greece. By his intrigues and bribes he won over to his interests the popular leaders of several cities; by their influence and votes, gained admission into the Amphictyonic council; and by his arts and his arms, made himself master of the confederacy. Such were the consequences of the fallacious principle on which this interesting establishment was founded. Had Greece, says a judicious observer on her fate, been united by a stricter confederation, and persevered in her union, she would never have worn the chains of Macedon; and might have proved a barrier to the vast projects of Rome. The Achaean league, as it is called, was another society of Grecian republics, which supplies us with valuable instruction. The Union here was far more intimate, and its organization much wiser, than in the preceding instance. It will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it. The cities composing this league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. The senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. According to the primitive constitution, there were two praetors associated in the administration; but on trial a single one was preferred. It appears that the cities had all the same laws and customs, the same weights and measures, and the same money. But how far this effect proceeded from the authority of the federal council is left in uncertainty. It is said only that the cities were in a manner compelled to receive the same laws and usages. When Lacedaemon was brought into the league by Philopoemen, it was attended with an abolition of the institutions and laws of Lycurgus, and an adoption of those of the Achaeans. The Amphictyonic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. This circumstance alone proves a very material difference in the genius of the two systems. It is much to be regretted that such imperfect monuments remain of this curious political fabric. Could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted. One important fact seems to be witnessed by all the historians who take notice of Achaean affairs. It is, that as well after the renovation of the league by Aratus, as before its dissolution by the arts of Macedon, there was infinitely more of moderation and justice in the administration of its government, and less of violence and sedition in the people, than were to be found in any of the cities exercising SINGLY all the prerogatives of sovereignty. The Abbe Mably, in his observations on Greece, says that the popular government, which was so tempestuous elsewhere, caused no disorders in the members of the Achaean republic, BECAUSE IT WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY. We are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities; much less that a due subordination and harmony reigned in the general system. The contrary is sufficiently displayed in the vicissitudes and fate of the republic. Whilst the Amphictyonic confederacy remained, that of the Achaeans, which comprehended the less important cities only, made little figure on the theatre of Greece. When the former became a victim to Macedon, the latter was spared by the policy of Philip and Alexander. Under the successors of these princes, however, a different policy prevailed. The arts of division were practiced among the Achaeans. Each city was seduced into a separate interest; the union was dissolved. Some of the cities fell under the tyranny of Macedonian garrisons; others under that of usurpers springing out of their own confusions. Shame and oppression erelong awaken their love of liberty. A few cities reunited. Their example was followed by others, as opportunities were found of cutting off their tyrants. The league soon embraced almost the whole Peloponnesus. Macedon saw its progress; but was hindered by internal dissensions from stopping it. All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in Sparta and Athens, of the rising glory of the Achaeans, threw a fatal damp on the enterprise. The dread of the Macedonian power induced the league to court the alliance of the Kings of Egypt and Syria, who, as successors of Alexander, were rivals of the king of Macedon. This policy was defeated by Cleomenes, king of Sparta, who was led by his ambition to make an unprovoked attack on his neighbors, the Achaeans, and who, as an enemy to Macedon, had interest enough with the Egyptian and Syrian princes to effect a breach of their engagements with the league. The Achaeans were now reduced to the dilemma of submitting to Cleomenes, or of supplicating the aid of Macedon, its former oppressor. The latter expedient was adopted. The contests of the Greeks always afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. A Macedonian army quickly appeared. Cleomenes was vanquished. The Achaeans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. All that their most abject compliances could obtain from him was a toleration of the exercise of their laws. Philip, who was now on the throne of Macedon, soon provoked by his tyrannies, fresh combinations among the Greeks. The Achaeans, though weakened by internal dissensions and by the revolt of Messene, one of its members, being joined by the AEtolians and Athenians, erected the standard of opposition. Finding themselves, though thus supported, unequal to the undertaking, they once more had recourse to the dangerous expedient of introducing the succor of foreign arms. The Romans, to whom the invitation was made, eagerly embraced it. Philip was conquered; Macedon subdued. A new crisis ensued to the league. Dissensions broke out among it members. These the Romans fostered. Callicrates and other popular leaders became mercenary instruments for inveigling their countrymen. The more effectually to nourish discord and disorder the Romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty(1) throughout Greece. With the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. By these arts this union, the last hope of Greece, the last hope of ancient liberty, was torn into pieces; and such imbecility and distraction introduced, that the arms of Rome found little difficulty in completing the ruin which their arts had commenced. The Achaeans were cut to pieces, and Achaia loaded with chains, under which it is groaning at this hour. I have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the Achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head. PUBLIUS 1. This was but another name more specious for the independence of the members on the federal head. FEDERALIST No. 19 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the Independent Journal. Saturday, December 8, 1787 MADISON, with HAMILTON To the People of the State of New York: THE examples of ancient confederacies, cited in my last paper, have not exhausted the source of experimental instruction on this subject. There are existing institutions, founded on a similar principle, which merit particular consideration. The first which presents itself is the Germanic body. In the early ages of Christianity, Germany was occupied by seven distinct nations, who had no common chief. The Franks, one of the number, having conquered the Gauls, established the kingdom which has taken its name from them. In the ninth century Charlemagne, its warlike monarch, carried his victorious arms in every direction; and Germany became a part of his vast dominions. On the dismemberment, which took place under his sons, this part was erected into a separate and independent empire. Charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. But the principal vassals, whose fiefs had become hereditary, and who composed the national diets which Charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and independence. The force of imperial sovereignty was insufficient to restrain such powerful dependants; or to preserve the unity and tranquillity of the empire. The most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. The imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the Suabian, and the accession of the first emperor of the Austrian lines. In the eleventh century the emperors enjoyed full sovereignty: In the fifteenth they had little more than the symbols and decorations of power. Out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the Germanic empire. Its powers are vested in a diet representing the component members of the confederacy; in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and in the imperial chamber and the aulic council, two judiciary tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members. The diet possesses the general power of legislating for the empire; of making war and peace; contracting alliances; assessing quotas of troops and money; constructing fortresses; regulating coin; admitting new members; and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited. The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. And the ban is denounced against such as shall violate any of these restrictions. The members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber. The prerogatives of the emperor are numerous. The most important of them are: his exclusive right to make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the empire; to receive and apply the public revenues; and generally to watch over the public safety. In certain cases, the electors form a council to him. In quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. But his revenue and dominions, in other qualities, constitute him one of the most powerful princes in Europe. From such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. Nothing would be further from the reality. The fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels. The history of Germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak; of foreign intrusions, and foreign intrigues; of requisitions of men and money disregarded, or partially complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty; of general imbecility, confusion, and misery. In the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. In one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of Saxony. The late king of Prussia was more than once pitted against his imperial sovereign; and commonly proved an overmatch for him. Controversies and wars among the members themselves have been so common, that the German annals are crowded with the bloody pages which describe them. Previous to the peace of Westphalia, Germany was desolated by a war of thirty years, in which the emperor, with one half of the empire, was on one side, and Sweden, with the other half, on the opposite side. Peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the Germanic constitution. If the nation happens, on any emergency, to be more united by the necessity of self-defense, its situation is still deplorable. Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies, that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters. The small body of national troops, which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury. The impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the experiment of dividing the empire into nine or ten circles or districts; of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members. This experiment has only served to demonstrate more fully the radical vice of the constitution. Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy. We may form some judgment of this scheme of military coercion from a sample given by Thuanus. In Donawerth, a free and imperial city of the circle of Suabia, the Abbe de St. Croix enjoyed certain immunities which had been reserved to him. In the exercise of these, on some public occasions, outrages were committed on him by the people of the city. The consequence was that the city was put under the ban of the empire, and the Duke of Bavaria, though director of another circle, obtained an appointment to enforce it. He soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory,(1) he took possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains. It may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? The answer is obvious: The weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the emperor derives from his separate and hereditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in Europe;--these causes support a feeble and precarious Union; whilst the repellant quality, incident to the nature of sovereignty, and which time continually strengthens, prevents any reform whatever, founded on a proper consolidation. Nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place which would give to the empire the force and preeminence to which it is entitled. Foreign nations have long considered themselves as interested in the changes made by events in this constitution; and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness. If more direct examples were wanting, Poland, as a government over local sovereigns, might not improperly be taken notice of. Nor could any proof more striking be given of the calamities flowing from such institutions. Equally unfit for self-government and self-defense, it has long been at the mercy of its powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories. The connection among the Swiss cantons scarcely amounts to a confederacy; though it is sometimes cited as an instance of the stability of such institutions. They have no common treasury; no common troops even in war; no common coin; no common judicatory; nor any other common mark of sovereignty. They are kept together by the peculiarity of their topographical position; by their individual weakness and insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few sources of contention among a people of such simple and homogeneous manners; by their joint interest in their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and rebellions, an aid expressly stipulated and often required and afforded; and by the necessity of some regular and permanent provision for accommodating disputes among the cantons. The provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. This tribunal, under an oath of impartiality, pronounces definitive sentence, which all the cantons are bound to enforce. The competency of this regulation may be estimated by a clause in their treaty of 1683, with Victor Amadeus of Savoy; in which he obliges himself to interpose as mediator in disputes between the cantons, and to employ force, if necessary, against the contumacious party. So far as the peculiarity of their case will admit of comparison with that of the United States, it serves to confirm the principle intended to be established. Whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. The controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. The Protestant and Catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages. That separation had another consequence, which merits attention. It produced opposite alliances with foreign powers: of Berne, at the head of the Protestant association, with the United Provinces; and of Luzerne, at the head of the Catholic association, with France. PUBLIUS 1. Pfeffel, "Nouvel Abrég. Chronol. de l'Hist., etc., d'Allemagne," says the pretext was to indemnify himself for the expense of the expedition. FEDERALIST No. 20 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) From the New York Packet. Tuesday, December 11, 1787. MADISON, with HAMILTON To the People of the State of New York: THE United Netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed. The union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. In all important cases, not only the provinces but the cities must be unanimous. The sovereignty of the Union is represented by the States-General, consisting usually of about fifty deputies appointed by the provinces. They hold their seats, some for life, some for six, three, and one years; from two provinces they continue in appointment during pleasure. The States-General have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas and demand contributions. In all these cases, however, unanimity and the sanction of their constituents are requisite. They have authority to appoint and receive ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the dependent territories. The provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. A council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration. The executive magistrate of the union is the stadtholder, who is now an hereditary prince. His principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of Europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon. As stadtholder of the union, he has, however, considerable prerogatives. In his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the States-General, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts. In his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns. In his marine capacity he is admiral-general, and superintends and directs every thing relative to naval forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenant-admirals and other officers; and establishes councils of war, whose sentences are not executed till he approves them. His revenue, exclusive of his private income, amounts to three hundred thousand florins. The standing army which he commands consists of about forty thousand men. Such is the nature of the celebrated Belgic confederacy, as delineated on parchment. What are the characters which practice has stamped upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war. It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution. The union of Utrecht, says another respectable writer, reposes an authority in the States-General, seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory. The same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota. In matters of contribution, it is the practice to waive the articles of the constitution. The danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. The great wealth and influence of the province of Holland enable her to effect both these purposes. It has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confederacy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense. Foreign ministers, says Sir William Temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. In 1726, the treaty of Hanover was delayed by these means a whole year. Instances of a like nature are numerous and notorious. In critical emergencies, the States-General are often compelled to overleap their constitutional bounds. In 1688, they concluded a treaty of themselves at the risk of their heads. The treaty of Westphalia, in 1648, by which their independence was formerly and finally recognized, was concluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the constitutional principle of unanimity was departed from. A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities. Notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. "Under such a government," says the Abbe Mably, "the Union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. This spring is the stadtholder." It is remarked by Sir William Temple, "that in the intermissions of the stadtholdership, Holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place." These are not the only circumstances which have controlled the tendency to anarchy and dissolution. The surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy. The true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by EXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply a remedy. As many times has their laudable zeal found it impossible to UNITE THE PUBLIC COUNCILS in reforming the known, the acknowledged, the fatal evils of the existing constitution. Let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness. A design was also conceived of establishing a general tax to be administered by the federal authority. This also had its adversaries and failed. This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their destiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own. I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY. PUBLIUS FEDERALIST No. 21 Other Defects of the Present Confederation For the Independent Journal. Wednesday, December 12, 1787 HAMILTON To the People of the State of New York: HAVING in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, I shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. To form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease. The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by inference and construction, in the face of that part of the second article, by which it is declared, "that each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States in Congress assembled." There is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new Constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. It will appear, from the specimens which have been cited, that the American Confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world. The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws. Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government. The tempestuous situation from which Massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a Caesar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York? The inordinate pride of State importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. It could be no impediment to reforms of the State constitution by a majority of the people in a legal and peaceable mode. This right would remain undiminished. The guaranty could only operate against changes to be effected by violence. Towards the preventions of calamities of this kind, too many checks cannot be provided. The peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men. A guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community. The principle of regulating the contributions of the States to the common treasury by QUOTAS is another fundamental error in the Confederation. Its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. I speak of it now solely with a view to equality among the States. Those who have been accustomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of State contributions, has any pretension to being a just representative. If we compare the wealth of the United Netherlands with that of Russia or Germany, or even of France, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. If the like parallel were to be run between several of the American States, it would furnish a like result. Let Virginia be contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and we shall be convinced that the respective abilities of those States, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative population. The position may be equally illustrated by a similar process between the counties of the same State. No man who is acquainted with the State of New York will doubt that the active wealth of King's County bears a much greater proportion to that of Montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people as a criterion! The wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. The consequence clearly is that there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression. This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some States, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. This, however, is an evil inseparable from the principle of quotas and requisitions. There is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. If inequalities should arise in some States from duties on particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other States, from the duties on other objects. In the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. Or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised. It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, "in political arithmetic, two and two do not always make four." If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them. Impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Either the value of land, or the number of the people, may serve as a standard. The state of agriculture and the populousness of a country have been considered as nearly connected with each other. And, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. In every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. The expense of an accurate valuation is, in all situations, a formidable objection. In a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large. PUBLIUS FEDERALIST No. 22 The Same Subject Continued (Other Defects of the Present Confederation) From the New York Packet. Friday, December 14, 1787. HAMILTON To the People of the State of New York: IN ADDITION to the defects already enumerated in the existing federal system, there are others of not less importance, which concur in rendering it altogether unfit for the administration of the affairs of the Union. The want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. It is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States. No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the American government was likely or not to acquire greater consistency.(1) Several States have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the State, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist. The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. "The commerce of the German empire(2) is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless." Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens. The power of raising armies, by the most obvious construction of the articles of the Confederation, is merely a power of making requisitions upon the States for quotas of men. This practice in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defense. It gave birth to a competition between the States which created a kind of auction for men. In order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. The hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. Hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. Hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure. This method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. The States near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. The immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. The States which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. We shall not, however, see much reason to regret the want of this hope, when we consider how little prospect there is, that the most delinquent States will ever be able to make compensation for their pecuniary failures. The system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the Union, and of inequality and injustice among the members. The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America;(3) and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration. It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine States would always comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine States which contain less than a majority of the people;(4) and it is constitutionally possible that these nine may give the vote. Besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven States, would extend its operation to interests of the first magnitude. In addition to this, it is to be observed that there is a probability of an increase in the number of States, and no provision for a proportional augmentation of the ratio of votes. But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy. It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. Suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. In the first case, he would have to corrupt a smaller number; in the last, a greater number. Upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions. And, in a commercial view, we may be subjected to similar inconveniences. A nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves. Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind. In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those deputies. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled. A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the came court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation? In this review of the Confederation, I have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters. The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States. If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon Congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus, we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert. It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. PUBLIUS 1. This, as nearly as I can recollect, was the sense of his speech on introducing the last bill. 2. Encyclopedia, article "Empire." 3. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the whole number of the States, but they do not contain one third of the people. 4. Add New York and Connecticut to the foregoing seven, and they will be less than a majority. FEDERALIST No. 23 The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union From the New York Packet. Tuesday, December 18, 1787. HAMILTON To the People of the State of New York: THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived. This inquiry will naturally divide itself into three branches--the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head. The principal purposes to be answered by union are these--the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries. The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the MEANS ought to be proportioned to the END; the persons, from whose agency the attainment of any END is expected, ought to possess the MEANS by which it is to be attained. Whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES. Defective as the present Confederation has been proved to be, this principle appears to have been fully recognized by the framers of it; though they have not made proper or adequate provision for its exercise. Congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. As their requisitions are made constitutionally binding upon the States, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the United States should command whatever resources were by them judged requisite to the "common defense and general welfare." It was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head. The experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, I imagine, have sufficed to convince the impartial and discerning, that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the Union energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities; we must extend the laws of the federal government to the individual citizens of America; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. The result from all this is that the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments. If the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the OBJECTS, as far as it can be done, which shall appertain to the different provinces or departments of power; allowing to each the most ample authority for fulfilling the objects committed to its charge. Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. The same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend. Is the administration of justice between the citizens of the same State the proper department of the local governments? These must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. Not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success. Who is likely to make suitable provisions for the public defense, as that body to which the guardianship of the public safety is confided; which, as the centre of information, will best understand the extent and urgency of the dangers that threaten; as the representative of the WHOLE, will feel itself most deeply interested in the preservation of every part; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its authority throughout the States, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured? Is there not a manifest inconsistency in devolving upon the federal government the care of the general defense, and leaving in the State governments the EFFECTIVE powers by which it is to be provided for? Is not a want of co-operation the infallible consequence of such a system? And will not weakness, disorder, an undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? Have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished? Every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. It will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite powers. If any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. A government, the constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can with propriety be confided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject. And the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. They ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. The POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for the management of our NATIONAL INTERESTS; nor can any satisfactory argument be framed to show that they are chargeable with such an excess. If it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensable to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative. I trust, however, that the impracticability of one general system cannot be shown. I am greatly mistaken, if any thing of weight has yet been advanced of this tendency; and I flatter myself, that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. This, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the Union of so large an empire. If we embrace the tenets of those who oppose the adoption of the proposed Constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present Confederacy. PUBLIUS FEDERALIST No. 24 The Powers Necessary to the Common Defense Further Considered For the Independent Journal. Wednesday, December 19, 1787 HAMILTON To the People of the State of New York: TO THE powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, I shall now endeavor to show, rests on weak and unsubstantial foundations. It has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of America, as expressed in most of the existing constitutions. The proprietary of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the LEGISLATIVE authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our State constitutions, and rejected in all the rest. A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature. If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity. Disappointed in his first surmise, the person I have supposed would be apt to pursue his conjectures a little further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. It must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor. If, under this impression, he proceeded to pass in review the several State constitutions, how great would be his disappointment to find that TWO ONLY of them(1) contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the Legislature to authorize their existence. Still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. He would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe to himself, the existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions. If he should now apply himself to a careful and critical survey of the articles of Confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! How else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of America as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? If, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. Even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings. But however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed. Though a wide ocean separates the United States from Europe, yet there are various considerations that warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belonging to these two powers create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of the family compact between France and Spain. And politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. These circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger. Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature. In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain would augment their military establishments in our neighborhood. If we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our Western settlements might be annoyed. There are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. It may be added that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy. If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. When a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself. PUBLIUS 1 This statement of the matter is taken from the printed collection of State constitutions. Pennsylvania and North Carolina are the two which contain the interdiction in these words: "As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up." This is, in truth, rather a CAUTION than a PROHIBITION. New Hampshire, Massachusetts, Delaware, and Maryland have, in each of their bills of rights, a clause to this effect: "Standing armies are dangerous to liberty, and ought not to be raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE"; which is a formal admission of the authority of the Legislature. New York has no bills of rights, and her constitution says not a word about the matter. No bills of rights appear annexed to the constitutions of the other States, except the foregoing, and their constitutions are equally silent. I am told, however that one or two States have bills of rights which do not appear in this collection; but that those also recognize the right of the legislative authority in this respect. FEDERALIST No. 25 The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered) From the New York Packet. Friday, December 21, 1787. HAMILTON To the People of the State of New York: IT MAY perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the State governments, under the direction of the Union. But this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some States, dangerous to all, and baneful to the Confederacy. The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common. And the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. It happens that some States, from local situation, are more directly exposed. New York is of this class. Upon the plan of separate provisions, New York would have to sustain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. This would neither be equitable as it respected New York nor safe as it respected the other States. Various inconveniences would attend such a system. The States, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. The security of all would thus be subjected to the parsimony, improvidence, or inability of a part. If the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other States would quickly take the alarm at seeing the whole military force of the Union in the hands of two or three of its members, and those probably amongst the most powerful. They would each choose to have some counterpoise, and pretenses could easily be contrived. In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority. Reasons have been already given to induce a supposition that the State governments will too naturally be prone to a rivalship with that of the Union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. If, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the Union. On the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion. The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions. There are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. The design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend; whether to raising armies as well as to KEEPING THEM UP in a season of tranquillity or not. If it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. When armies are once raised what shall be denominated "keeping them up," contrary to the sense of the Constitution? What time shall be requisite to ascertain the violation? Shall it be a week, a month, a year? Or shall we say they may be continued as long as the danger which occasioned their being raised continues? This would be to admit that they might be kept up IN TIME OF PEACE, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. Who shall judge of the continuance of the danger? This must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. It is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision. The supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. Should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! Indian hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. If we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project. If, to obviate this consequence, it should be resolved to extend the prohibition to the RAISING of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its Constitution to prepare for defense, before it was actually invaded. As the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the State. We must receive the blow, before we could even prepare to return it. All that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. We must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation. Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice. All violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. Pennsylvania, at this instant, affords an example of the truth of this remark. The Bill of Rights of that State declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. Pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. The particular constitution of Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. It also teaches us, in its application to the United States, how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity. It was a fundamental maxim of the Lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. The Peloponnesian confederates, having suffered a severe defeat at sea from the Athenians, demanded Lysander, who had before served with success in that capacity, to command the combined fleets. The Lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing Lysander with the real power of admiral, under the nominal title of vice-admiral. This instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable. PUBLIUS FEDERALIST No. 26 The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered. For the Independent Journal. Saturday, December 22, 1788 HAMILTON To the People of the State of New York: IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better. The idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. We have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, Pennsylvania and North Carolina are the only two States by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. The opponents of the proposed Constitution combat, in this respect, the general decision of America; and instead of being taught by experience the propriety of correcting any extremes into which we may have heretofore run, they appear disposed to conduct us into others still more dangerous, and more extravagant. As if the tone of government had been found too high, or too rigid, the doctrines they teach are calculated to induce us to depress or to relax it, by expedients which, upon other occasions, have been condemned or forborne. It may be affirmed without the imputation of invective, that if the principles they inculcate, on various points, could so far obtain as to become the popular creed, they would utterly unfit the people of this country for any species of government whatever. But a danger of this kind is not to be apprehended. The citizens of America have too much discernment to be argued into anarchy. And I am much mistaken, if experience has not wrought a deep and solemn conviction in the public mind, that greater energy of government is essential to the welfare and prosperity of the community. It may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. Though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these States have in general sprung. In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II. increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that "the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law." In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community. From the same source, the people of America may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. The circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raise the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. The attempts of two of the States to restrict the authority of the legislature in the article of military establishments, are of the number of these instances. The principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. Even in some of the States, where this error was not adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I call them unnecessary, because the reason which had introduced a similar provision into the English Bill of Rights is not applicable to any of the State constitutions. The power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. Accordingly, in some of these constitutions, and among others, in that of this State of New York, which has been justly celebrated, both in Europe and America, as one of the best of the forms of government established in this country, there is a total silence upon the subject. It is remarkable, that even in the two States which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory. It is not said, that standing armies SHALL NOT BE kept up, but that they OUGHT NOT to be kept up, in time of peace. This ambiguity of terms appears to have been the result of a conflict between jealousy and conviction; between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe. Can it be doubted that such a provision, whenever the situation of public affairs was understood to require a departure from it, would be interpreted by the legislature into a mere admonition, and would be made to yield to the necessities or supposed necessities of the State? Let the fact already mentioned, with respect to Pennsylvania, decide. What then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it? Let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new Constitution, for restraining the appropriations of money for military purposes to the period of two years. The former, by aiming at too much, is calculated to effect nothing; the latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision for the exigencies of the nation, will have a salutary and powerful operation. The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent. Schemes to subvert the liberties of a great community REQUIRE TIME to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable, that every man, the instant he took his seat in the national Senate or House of Representatives, would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person. If such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. It would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. What colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? It is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery. It has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the Executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. But the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? If we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. Few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamities for which there is neither preventative nor cure. It cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense. But it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. It is not easy to conceive a possibility that dangers so formidable can assail the whole Union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. But in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable. PUBLIUS FEDERALIST No. 27 The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered) From the New York Packet. Tuesday, December 25, 1787. HAMILTON To the People of the State of New York: IT HAS been urged, in different shapes, that a Constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. This, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. As far as I have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature. Waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground there is to presuppose that disinclination in the people. Unless we presume at the same time that the powers of the general government will be worse administered than those of the State government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. I believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration. It must be admitted that there are exceptions to this rule; but these exceptions depend so entirely on accidental causes, that they cannot be considered as having any relation to the intrinsic merits or demerits of a constitution. These can only be judged of by general principles and maxims. Various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments; the principal of which reasons are that the extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the medium of the State legislatures which are select bodies of men, and which are to appoint the members of the national Senate there is reason to expect that this branch will generally be composed with peculiar care and judgment; that these circumstances promise greater knowledge and more extensive information in the national councils, and that they will be less apt to be tainted by the spirit of faction, and more out of the reach of those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which, though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction, and disgust. Several additional reasons of considerable force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members. The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole Confederacy, be more likely to repress the FORMER sentiment and to inspire the LATTER, than that of a single State, which can only command the resources within itself? A turbulent faction in a State may easily suppose itself able to contend with the friends to the government in that State; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the Union. If this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the Confederacy than to that of a single member. I will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit. A thing that rarely strikes his senses will generally have but little influence upon his mind. A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channels and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion. One thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force, than that species of league contend for by most of its opponents; the authority of which should only operate upon the States in their political or collective capacities. It has been shown that in such a Confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence. The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole Union. It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws.(1) Any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the Union, if its powers are administered with a common share of prudence. If we will arbitrarily suppose the contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and precipitate the people into the wildest excesses. But though the adversaries of the proposed Constitution should presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, I would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a conduct? PUBLIUS 1. The sophistry which has been employed to show that this will tend to the destruction of the State governments, will, in its will, in its proper place, be fully detected. FEDERALIST No. 28 The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered) For the Independent Journal. Wednesday, December 26, 1787 HAMILTON To the People of the State of New York: THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government. Regard to the public peace, if not to the rights of the Union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support. If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops for repressing the disorders within that State; that Pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. Suppose the State of New York had been inclined to re-establish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the State governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? Is it not surprising that men who declare an attachment to the Union in the abstract, should urge as an objection to the proposed Constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics? Let us pursue this examination in another light. Suppose, in lieu of one general system, two, or three, or even four Confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these Confederacies? Would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the States? Would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? All candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the States, or different governments for different parcels of them, or even if there should be an entire separation of the States, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions. Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society.(1) If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance. The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized! It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty. The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign power. And it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. If the federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive. We should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. For a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning. PUBLIUS 1. Its full efficacy will be examined hereafter. FEDERALIST No. 29 Concerning the Militia From the New York Packet. Wednesday, January 9, 1788 HAMILTON To the People of the State of New York: THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy. It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS." Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and conviction? By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse: "The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. "But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can foresee. There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia. In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes-- "Gorgons, hydras, and chimeras dire"; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster. A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d'ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths? If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs. In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of self-preservation to the too feeble impulses of duty and sympathy. PUBLIUS FEDERALIST No. 30 Concerning the General Power of Taxation From the New York Packet. Friday, December 28, 1787. HAMILTON To the People of the State of New York: IT HAS been already observed that the federal government ought to possess the power of providing for the support of the national forces; in which proposition was intended to be included the expense of raising troops, of building and equipping fleets, and all other expenses in any wise connected with military arrangements and operations. But these are not the only objects to which the jurisdiction of the Union, in respect to revenue, must necessarily be empowered to extend. It must embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury. The conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another. Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish. In the Ottoman or Turkish empire, the sovereign, though in other respects absolute master of the lives and fortunes of his subjects, has no right to impose a new tax. The consequence is that he permits the bashaws or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums of which he stands in need, to satisfy his own exigencies and those of the state. In America, from a like cause, the government of the Union has gradually dwindled into a state of decay, approaching nearly to annihilation. Who can doubt, that the happiness of the people in both countries would be promoted by competent authorities in the proper hands, to provide the revenues which the necessities of the public might require? The present Confederation, feeble as it is intended to repose in the United States, an unlimited power of providing for the pecuniary wants of the Union. But proceeding upon an erroneous principle, it has been done in such a manner as entirely to have frustrated the intention. Congress, by the articles which compose that compact (as has already been stated), are authorized to ascertain and call for any sums of money necessary, in their judgment, to the service of the United States; and their requisitions, if conformable to the rule of apportionment, are in every constitutional sense obligatory upon the States. These have no right to question the propriety of the demand; no discretion beyond that of devising the ways and means of furnishing the sums demanded. But though this be strictly and truly the case; though the assumption of such a right would be an infringement of the articles of Union; though it may seldom or never have been avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as the revenues of the Confederacy should remain dependent on the intermediate agency of its members. What the consequences of this system have been, is within the knowledge of every man the least conversant in our public affairs, and has been amply unfolded in different parts of these inquiries. It is this which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification to ourselves, and of triumph to our enemies. What remedy can there be for this situation, but in a change of the system which has produced it in a change of the fallacious and delusive system of quotas and requisitions? What substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? Ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury. The more intelligent adversaries of the new Constitution admit the force of this reasoning; but they qualify their admission by a distinction between what they call INTERNAL and EXTERNAL taxation. The former they would reserve to the State governments; the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head. This distinction, however, would violate the maxim of good sense and sound policy, which dictates that every POWER ought to be in proportion to its OBJECT; and would still leave the general government in a kind of tutelage to the State governments, inconsistent with every idea of vigor or efficiency. Who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the Union? Taking into the account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately impressed with the importance of public justice and public credit could approve, in addition to the establishments which all parties will acknowledge to be necessary, we could not reasonably flatter ourselves, that this resource alone, upon the most improved scale, would even suffice for its present necessities. Its future necessities admit not of calculation or limitation; and upon the principle, more than once adverted to, the power of making provision for them as they arise ought to be equally unconfined. I believe it may be regarded as a position warranted by the history of mankind, that, IN THE USUAL PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES. To say that deficiencies may be provided for by requisitions upon the States, is on the one hand to acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for every thing beyond a certain limit. Those who have carefully attended to its vices and deformities as they have been exhibited by experience or delineated in the course of these papers, must feel invincible repugnancy to trusting the national interests in any degree to its operation. Its inevitable tendency, whenever it is brought into activity, must be to enfeeble the Union, and sow the seeds of discord and contention between the federal head and its members, and between the members themselves. Can it be expected that the deficiencies would be better supplied in this mode than the total wants of the Union have heretofore been supplied in the same mode? It ought to be recollected that if less will be required from the States, they will have proportionably less means to answer the demand. If the opinions of those who contend for the distinction which has been mentioned were to be received as evidence of truth, one would be led to conclude that there was some known point in the economy of national affairs at which it would be safe to stop and to say: Thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good? Let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged. We will presume, for argument's sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the Union. Thus circumstanced, a war breaks out. What would be the probable conduct of the government in such an emergency? Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the State? It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. To imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. In the modern system of war, nations the most wealthy are obliged to have recourse to large loans. A country so little opulent as ours must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? The loans it might be able to procure would be as limited in their extent as burdensome in their conditions. They would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors, with a sparing hand and at enormous premiums. It may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of diverting the established funds in the case supposed would exist, though the national government should possess an unrestrained power of taxation. But two considerations will serve to quiet all apprehension on this head: one is, that we are sure the resources of the community, in their full extent, will be brought into activity for the benefit of the Union; the other is, that whatever deficiences there may be, can without difficulty be supplied by loans. The power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. Foreigners, as well as the citizens of America, could then reasonably repose confidence in its engagements; but to depend upon a government that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when once its situation is clearly understood, would require a degree of credulity not often to be met with in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice. Reflections of this kind may have trifling weight with men who hope to see realized in America the halcyon scenes of the poetic or fabulous age; but to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, they must appear entitled to serious attention. Such men must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it. PUBLIUS FEDERALIST No. 31 The Same Subject Continued (Concerning the General Power of Taxation) From the New York Packet. Tuesday, January 1, 1788. HAMILTON To the People of the State of New York: IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. Where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice. Of this nature are the maxims in geometry, that "the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other." Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. And there are other truths in the two latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of common-sense, that they challenge the assent of a sound and unbiased mind, with a degree of force and conviction almost equally irresistible. The objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more simple theorems of the science, but even those abstruse paradoxes which, however they may appear susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid of philosophy, would be led to entertain upon the subject. The INFINITE DIVISIBILITY of matter, or, in other words, the INFINITE divisibility of a FINITE thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously leveled. But in the sciences of morals and politics, men are found far less tractable. To a certain degree, it is right and useful that this should be the case. Caution and investigation are a necessary armor against error and imposition. But this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. Though it cannot be pretended that the principles of moral and political knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have much better claims in this respect than, to judge from the conduct of men in particular situations, we should be disposed to allow them. The obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. Men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties. How else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear as those which manifest the necessity of a general power of taxation in the government of the Union, should have to encounter any adversaries among men of discernment? Though these positions have been elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an examination of what may have been offered by way of objection to them. They are in substance as follows: A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people. As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community. As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies. As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes. Did not experience evince the contrary, it would be natural to conclude that the propriety of a general power of taxation in the national government might safely be permitted to rest on the evidence of these propositions, unassisted by any additional arguments or illustrations. But we find, in fact, that the antagonists of the proposed Constitution, so far from acquiescing in their justness or truth, seem to make their principal and most zealous effort against this part of the plan. It may therefore be satisfactory to analyze the arguments with which they combat it. Those of them which have been most labored with that view, seem in substance to amount to this: "It is not true, because the exigencies of the Union may not be susceptible of limitation, that its power of laying taxes ought to be unconfined. Revenue is as requisite to the purposes of the local administrations as to those of the Union; and the former are at least of equal importance with the latter to the happiness of the people. It is, therefore, as necessary that the State governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the Union. But an indefinite power of taxation in the LATTER might, and probably would in time, deprive the FORMER of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land, as it is to have power to pass all laws that may be NECESSARY for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for State objects upon the pretense of an interference with its own. It might allege a necessity of doing this in order to give efficacy to the national revenues. And thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the State governments." This mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers. It is only in the latter light that it can be admitted to have any pretensions to fairness. The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution. I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. The State governments, by their original constitutions, are invested with complete sovereignty. In what does our security consist against usurpation from that quarter? Doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. If the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species of security, all apprehensions on the score of usurpation ought to be discarded. It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments. What side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. As in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the Union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members. But it is evident that all conjectures of this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments. Upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the United States. PUBLIUS FEDERALIST No. 32 The Same Subject Continued (Concerning the General Power of Taxation) From The Independent Journal. Wednesday, January 2, 1788. HAMILTON To the People of the State of New York: ALTHOUGH I am of opinion that there would be no real danger of the consequences which seem to be apprehended to the State governments from a power in the Union to control them in the levies of money, because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the State governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution. An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT. I use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the POLICY of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. These three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: The last clause but one in the eighth section of the first article provides expressly that Congress shall exercise "EXCLUSIVE LEGISLATION" over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers Congress "to lay and collect taxes, duties, imposts and excises"; and the second clause of the tenth section of the same article declares that, "NO STATE SHALL, without the consent of Congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws." Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification, it now only extends to the DUTIES ON IMPORTS. This answers to the second case. The third will be found in that clause which declares that Congress shall have power "to establish an UNIFORM RULE of naturalization throughout the United States." This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE. A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and coequal authority in the United States and in the individual States. There is plainly no expression in the granting clause which makes that power EXCLUSIVE in the Union. There is no independent clause or sentence which prohibits the States from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the States in relation to duties on imports and exports. This restriction implies an admission that, if it were not inserted, the States would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the States remains undiminished. In any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the Union of the power of laying such duties implied the exclusion of the States, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an AFFIRMANCE of another; a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue that it was meant to exclude them ABSOLUTELY from the imposition of taxes of the former kind, and to leave them at liberty to lay others SUBJECT TO THE CONTROL of the national legislature. The restraining or prohibitory clause only says, that they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the States, WITH THE CONSENT of the national legislature, might tax imports and exports; and that they might tax every other article, UNLESS CONTROLLED by the same body. If this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union? It is evident that this could not have been the intention, and that it will not bear a construction of the kind. As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it INEXPEDIENT that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty. The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary. PUBLIUS FEDERALIST No. 33 The Same Subject Continued (Concerning the General Power of Taxation) From The Independent Journal. Wednesday, January 2, 1788. HAMILTON To the People of the State of New York: THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature "to make all laws which shall be NECESSARY and PROPER for carrying into execution THE POWERS by that Constitution vested in the government of the United States, or in any department or officer thereof"; and the second clause of the sixth article declares, "that the Constitution and the laws of the United States made IN PURSUANCE THEREOF, and the treaties made by their authority shall be the SUPREME LAW of the land, any thing in the constitution or laws of any State to the contrary notwithstanding." These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws? This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the unfortunate and calumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless. But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare. But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths. But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed. Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union. PUBLIUS FEDERALIST No. 34 The Same Subject Continued (Concerning the General Power of Taxation) From The Independent Journal. Saturday, January 5, 1788. HAMILTON To the People of the State of New York: I FLATTER myself it has been clearly shown in my last number that the particular States, under the proposed Constitution, would have COEQUAL authority with the Union in the article of revenue, except as to duties on imports. As this leaves open to the States far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control. That the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the State governments to provide. To argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and theory against fact and reality. However proper such reasonings might be to show that a thing OUGHT NOT TO EXIST, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to ANNUL or REPEAL the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their existence. It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. And yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness. In the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. And in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the States will naturally reduce themselves within A VERY NARROW COMPASS; and in the interim, the United States will, in all probability, find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort. To form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a State provision. We shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. In pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. It is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the Union, and to maintain those establishments which, for some time to come, would suffice in time of peace. But would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? If, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? Though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. Observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. The support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic. Admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. A cloud has been for some time hanging over the European world. If it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? No reasonable man would hastily pronounce that we are entirely out of its reach. Or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? Let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. Who could have imagined at the conclusion of the last war that France and Britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? To judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character. What are the chief sources of expense in every government? What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed? The answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense. In the kingdom of Great Britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. If, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. If we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good. But let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. It is true that several of the States, separately, are encumbered with considerable debts, which are an excrescence of the late war. But this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the State governments will continue to experience, will be for the mere support of their respective civil list; to which, if we add all contingencies, the total amount in every State ought to fall considerably short of two hundred thousand pounds. In framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. If this principle be a just one our attention would be directed to a provision in favor of the State governments for an annual sum of about two hundred thousand pounds; while the exigencies of the Union could be susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent of two hundred thousand pounds? To extend its power further, in EXCLUSION of the authority of the Union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them. Suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the Union and its members, in PROPORTION to their comparative necessities; what particular fund could have been selected for the use of the States, that would not either have been too much or too little too little for their present, too much for their future wants? As to the line of separation between external and internal taxes, this would leave to the States, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. If we desert this boundary and content ourselves with leaving to the States an exclusive power of taxing houses and lands, there would still be a great disproportion between the MEANS and the END; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. If any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular States, and would have left them dependent on the Union for a provision for this purpose. The preceding train of observation will justify the position which has been elsewhere laid down, that "A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union." Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities. There remain a few other lights, in which this important subject of taxation will claim a further consideration. PUBLIUS FEDERALIST No. 35 The Same Subject Continued (Concerning the General Power of Taxation) For the Independent Journal. Saturday, January 5, 1788 HAMILTON To the People of the State of New York: BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State. Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale. The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts. So far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections. One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. This argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries. The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community. With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community. Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all. It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society? If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent. There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found. PUBLIUS FEDERALIST No. 36 The Same Subject Continued (Concerning the General Power of Taxation) From the New York Packet. Tuesday, January 8, 1788. HAMILTON To the People of the State of New York: WE HAVE seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views. If it should be objected that we have seen other descriptions of men in the local legislatures, I answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. There are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all; and I trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of State legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive. The subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, What greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? It is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. But I forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency. There is another objection of a somewhat more precise nature that claims our attention. It has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the Union and of the particular States. The supposition of a want of proper knowledge seems to be entirely destitute of foundation. If any question is depending in a State legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? No doubt from the information of the members of the county. Cannot the like knowledge be obtained in the national legislature from the representatives of each State? And is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? Is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry? Nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature. Inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation. The taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the DIRECT and those of the INDIRECT kind. Though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. And indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. The knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. The circumstances that may distinguish its situation in one State from its situation in another must be few, simple, and easy to be comprehended. The principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular State; and there could be no difficulty in ascertaining the revenue system of each. This could always be known from the respective codes of laws, as well as from the information of the members from the several States. The objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. Land taxes are commonly laid in one of two modes, either by ACTUAL valuations, permanent or periodical, or by OCCASIONAL assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. In either case, the EXECUTION of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. All that the law can do must be to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. And what is there in all this that cannot as well be performed by the national legislature as by a State legislature? The attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan. But there is a simple point of view in which this matter may be placed that must be altogether satisfactory. The national legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT STATE. The method of laying and collecting this species of taxes in each State can, in all its parts, be adopted and employed by the federal government. Let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each State, as described in the second section of the first article. An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. The abuse of this power of taxation seems to have been provided against with guarded circumspection. In addition to the precaution just mentioned, there is a provision that "all duties, imposts, and excises shall be UNIFORM throughout the United States." It has been very properly observed by different speakers and writers on the side of the Constitution, that if the exercise of the power of internal taxation by the Union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. By way of answer to this, it has been triumphantly asked, Why not in the first instance omit that ambiguous power, and rely upon the latter resource? Two solid answers may be given. The first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised. The contrary, indeed, appears most probable. The second answer is, that the existence of such a power in the Constitution will have a strong influence in giving efficacy to requisitions. When the States know that the Union can apply itself without their agency, it will be a powerful motive for exertion on their part. As to the interference of the revenue laws of the Union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. The laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. An effectual expedient for this purpose will be, mutually, to abstain from those objects which either side may have first had recourse to. As neither can CONTROL the other, each will have an obvious and sensible interest in this reciprocal forbearance. And where there is an IMMEDIATE common interest, we may safely count upon its operation. When the particular debts of the States are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. A small land tax will answer the purpose of the States, and will be their most simple and most fit resource. Many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain. As to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the Union, which applies to the duties on imports; the other, where the object has not fallen under any State regulation or provision, which may be applicable to a variety of objects. In other cases, the probability is that the United States will either wholly abstain from the objects preoccupied for local purposes, or will make use of the State officers and State regulations for collecting the additional imposition. This will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the State governments and to the people. At all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted to not necessarily result from the plan. As to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. If such a spirit should infest the councils of the Union, the most certain road to the accomplishment of its aim would be to employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments. This would serve to turn the tide of State influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. But all suppositions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. They can answer no other end than to cast a mist over the truth. As to the suggestion of double taxation, the answer is plain. The wants of the Union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the State government. The quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the Union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under State regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. Happy it is when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression! As to poll taxes, I, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those States(1) which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the national government. But does it follow because there is a power to lay them that they will actually be laid? Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. There may exist certain critical and tempestuous conjunctures of the State, in which a poll tax may become an inestimable resource. And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security. (I have now gone through the examination of such of the powers proposed to be vested in the United States, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. I have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the Constitution, or of too manifest propriety to admit of controversy. The mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. This has determined me to refer it to the branch of our inquiries upon which we shall next enter.)(E1) (I have now gone through the examination of those powers proposed to be conferred upon the federal government which relate more peculiarly to its energy, and to its efficiency for answering the great and primary objects of union. There are others which, though omitted here, will, in order to render the view of the subject more complete, be taken notice of under the next head of our inquiries. I flatter myself the progress already made will have sufficed to satisfy the candid and judicious part of the community that some of the objections which have been most strenuously urged against the Constitution, and which were most formidable in their first appearance, are not only destitute of substance, but if they had operated in the formation of the plan, would have rendered it incompetent to the great ends of public happiness and national prosperity. I equally flatter myself that a further and more critical investigation of the system will serve to recommend it still more to every sincere and disinterested advocate for good government and will leave no doubt with men of this character of the propriety and expediency of adopting it. Happy will it be for ourselves, and more honorable for human nature, if we have wisdom and virtue enough to set so glorious an example to mankind!)(E1) PUBLIUS 1. The New England States. E1. Two versions of this paragraph appear in different editions. FEDERALIST No. 37 Concerning the Difficulties of the Convention in Devising a Proper Form of Government. From the Daily Advertiser. Friday, January 11, 1788. MADISON To the People of the State of New York: IN REVIEWING the defects of the existing Confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. But as the ultimate object of these papers is to determine clearly and fully the merits of this Constitution, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects. That this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests. It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. In placing, however, these different characters on a level, with respect to the weight of their opinions, I wish not to insinuate that there may not be a material difference in the purity of their intentions. It is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. The predetermined adversary, on the other hand, can have been governed by no venial motive whatever. The intentions of the first may be upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be culpable. But the truth is, that these papers are not addressed to persons falling under either of these characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others. With equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention. The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. It has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them. Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. Without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the State administrations. On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand. How far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. From the cursory view here taken, it must clearly appear to have been an arduous part. Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments. Every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. The faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. The most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of the former and the commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted. When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated. Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all. To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller States. We cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. We may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. It is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. There are features in the Constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations. Nor could it have been the large and small States only, which would marshal themselves in opposition to each other on various points. Other combinations, resulting from a difference of local position and policy, must have created additional difficulties. As every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. And although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it. Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution. We had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution. The history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. If, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. In revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. The first is, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. The second conclusion is that all the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments. FEDERALIST No. 38 The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed. From The Independent Journal. Saturday, January 12, 1788. MADISON To the People of the State of New York: IT IS not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity. Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by Tullius Hostilius, and to which his address obtained the assent and ratification of the senate and people. This remark is applicable to confederate governments also. Amphictyon, we are told, was the author of that which bore his name. The Achaean league received its first birth from Achaeus, and its second from Aratus. What degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. In some, however, the proceeding was strictly regular. Draco appears to have been intrusted by the people of Athens with indefinite powers to reform its government and laws. And Solon, according to Plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. The proceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens. Whence could it have proceeded, that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? Whence could it have proceeded, that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? These questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. Solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them. Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? This conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the Articles of Confederation. It is observable that among the numerous objections and amendments suggested by the several States, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. And if we except the observations which New Jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of self-preservation. One State, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. Every candid reader will make the proper reflections on these important facts. A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. They are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. The prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. Might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? And if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one? Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No. Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large State exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in the House of Representatives. From this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the Constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. Whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this executive power in the Executive alone, is the vicious part of the organization. To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the President into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. "We concur fully," reply others, "in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organization arises from the extensive powers already lodged in that department." Even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. The demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the President himself. As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. Were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the Constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers. It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation? Is an indefinite power to raise money dangerous in the hands of the federal government? The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The Confederation gives to Congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men? Congress, a single body of men, are the sole depositary of all the federal powers. Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? The Confederation places them both in the hands of Congress. Is a bill of rights essential to liberty? The Confederation has no bill of rights. Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the laws of the land? The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever. I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of Congress on the State for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union. It is now no longer a point of speculation and hope, that the Western territory is a mine of vast wealth to the United States; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. A very large proportion of this fund has been already surrendered by individual States; and it may with reason be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more: they have proceeded to form new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy. All this has been done; and done without the least color of constitutional authority. Yet no blame has been whispered; no alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for an INDEFINITE PERIOD OF TIME. And yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. Would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the Union against the future powers and resources of a body constructed like the existing Congress, than to save it from the dangers threatened by the present impotency of that Assembly? I mean not, by any thing here said, to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed. PUBLIUS FEDERALIST No. 39 The Conformity of the Plan to Republican Principles For the Independent Journal. Wednesday, January 16, 1788 MADISON To the People of the State of New York: THE last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking. The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible. What, then, are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different States, no satisfactory one would ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions. If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. According to the constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them, the chief magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. According to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior. On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of State constitutions The House of Representatives is periodically elective, as in all the States; and for the period of two years, as in the State of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The President is to continue in office for the period of four years; as in New York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. In the other States the election is annual. In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions. Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter. "But it was not sufficient," say the adversaries of the proposed Constitution, "for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States." And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision. Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority. First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced. On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act. That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features. The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government. But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated. If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character. The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national. PUBLIUS FEDERALIST No. 40 On the Powers of the Convention to Form a Mixed Government Examined and Sustained For the New York Packet. Friday, January 18, 1788. MADISON To the People of the State of New York: THE SECOND point to be examined is, whether the convention were authorized to frame and propose this mixed Constitution. The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis, in September, 1786, or to that from Congress, in February, 1787, it will be sufficient to recur to these particular acts. The act from Annapolis recommends the "appointment of commissioners to take into consideration the situation of the United States; to devise SUCH FURTHER PROVISIONS as shall appear to them necessary to render the Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE UNION; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same." The recommendatory act of Congress is in the words following: "WHEREAS, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation; as a mean to remedy which, several of the States, and PARTICULARLY THE STATE OF NEW YORK, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States A FIRM NATIONAL GOVERNMENT: "Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION." From these two acts, it appears, 1st, that the object of the convention was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this government was to be such as would be ADEQUATE TO THE EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF CONFEDERATION, as it is expressed in the act of Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the recommendatory act from Annapolis; 4th, that the alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the former and confirmed by the latter. From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation into such form as to accomplish these purposes. There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means. Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part of the definition ought to have been embraced, and which rejected? Which was the more important, which the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved; or that an adequate government should be omitted, and the articles of Confederation preserved. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. But is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no ALTERATIONS or PROVISIONS in the articles of the confederation could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? No stress, it is presumed, will, in this case, be laid on the TITLE; a change of that could never be deemed an exercise of ungranted power. ALTERATIONS in the body of the instrument are expressly authorized. NEW PROVISIONS therein are also expressly authorized. Here then is a power to change the title; to insert new articles; to alter old ones. Must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? Those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a TRANSMUTATION of the government. Will it be said that the alterations ought not to have touched the substance of the Confederation? The States would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some SUBSTANTIAL reform had not been in contemplation. Will it be said that the FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview of the convention, and ought not to have been varied? I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. Do they require that the members of the government should derive their appointment from the legislatures, not from the people of the States? One branch of the new government is to be appointed by these legislatures; and under the Confederation, the delegates to Congress MAY ALL be appointed immediately by the people, and in two States(1) are actually so appointed. Do they require that the powers of the government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new government will act on the States in their collective characters. In some instances, also, those of the existing government act immediately on individuals. In cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens. Do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the States? The Confederation itself authorizes a direct tax, to a certain extent, on the post office. The power of coinage has been so construed by Congress as to levy a tribute immediately from that source also. But pretermitting these instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue? Had not Congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the Confederation? Had not every State but one; had not New York herself, so far complied with the plan of Congress as to recognize the PRINCIPLE of the innovation? Do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a MAJORITY of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation. The THIRD point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. In the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a Constitution for the United States. We have seen in what manner they have borne the trial even on that supposition. It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention; and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. This reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. Let us view the ground on which the convention stood. It may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. It could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. They had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity with which the PROPOSITION, made by a single State (Virginia), towards a partial amendment of the Confederation, had been attended to and promoted. They had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW States, convened at Annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen States. They had seen, in a variety of instances, assumptions by Congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,"(2) since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. They must have borne in mind, that as the plan to be framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. It might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? Or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve States who USURPED THE POWER of sending deputies to the convention, a body utterly unknown to their constitutions; for Congress, who recommended the appointment of this body, equally unknown to the Confederation; and for the State of New York, in particular, which first urged and then complied with this unauthorized interposition? But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be rejected? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent inquiry, in all cases, ought surely to be, not so much FROM WHOM the advice comes, as whether the advice be GOOD. The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America. How far this character is due to the Constitution, is the subject under investigation. PUBLIUS 1. Connecticut and Rhode Island. 2. Declaration of Independence. FEDERALIST No. 41 General View of the Powers Conferred by The Constitution For the Independent Journal. Saturday, January 19, 1788 MADISON To the People of the State of New York: THE Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches. Under the FIRST view of the subject, two important questions arise: 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States? Is the aggregate power of the general government greater than ought to have been vested in it? This is the FIRST question. It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers. The powers falling within the FIRST class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils. Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form. Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defense. But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in WAR? The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety. How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. If one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions. The fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII. of France. All Europe has followed, or been forced into, the example. Had the example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except France now to disband its peace establishments, the same event might follow. The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world. Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties. The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat. It was remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of Great Britain have never been able, by real or artificial dangers, to cheat the public into an extensive peace establishment. The distance of the United States from the powerful nations of the world gives them the same happy security. A dangerous establishment can never be necessary or plausible, so long as they continue a united people. But let it never, for a moment, be forgotten that they are indebted for this advantage to the Union alone. The moment of its dissolution will be the date of a new order of things. The fears of the weaker, or the ambition of the stronger States, or Confederacies, will set the same example in the New, as Charles VII. did in the Old World. The example will be followed here from the same motives which produced universal imitation there. Instead of deriving from our situation the precious advantage which Great Britain has derived from hers, the face of America will be but a copy of that of the continent of Europe. It will present liberty everywhere crushed between standing armies and perpetual taxes. The fortunes of disunited America will be even more disastrous than those of Europe. The sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge. In America the miseries springing from her internal jealousies, contentions, and wars, would form a part only of her lot. A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe. This picture of the consequences of disunion cannot be too highly colored, or too often exhibited. Every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the Union of America, and be able to set a due value on the means of preserving it. Next to the effectual establishment of the Union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently added. I will not repeat here the observations which I flatter myself have placed this subject in a just and satisfactory light. But it may not be improper to take notice of an argument against this part of the Constitution, which has been drawn from the policy and practice of Great Britain. It is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the American Constitution has lengthened this critical period to two years. This is the form in which the comparison is usually stated to the public: but is it a just form? Is it a fair comparison? Does the British Constitution restrain the parliamentary discretion to one year? Does the American impose on the Congress appropriations for two years? On the contrary, it cannot be unknown to the authors of the fallacy themselves, that the British Constitution fixes no limit whatever to the discretion of the legislature, and that the American ties down the legislature to two years, as the longest admissible term. Had the argument from the British example been truly stated, it would have stood thus: The term for which supplies may be appropriated to the army establishment, though unlimited by the British Constitution, has nevertheless, in practice, been limited by parliamentary discretion to a single year. Now, if in Great Britain, where the House of Commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the Crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the United States, elected FREELY by the WHOLE BODY of the people, every SECOND YEAR, cannot be safely intrusted with the discretion over such appropriations, expressly limited to the short period of TWO YEARS? A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a Constitution fully adequate to the national defense and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter. The palpable necessity of the power to provide and maintain a navy has protected that part of the Constitution against a spirit of censure, which has spared few other parts. It must, indeed, be numbered among the greatest blessings of America, that as her Union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great Britain. The batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties. The inhabitants of the Atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. If we except perhaps Virginia and Maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the Union ought to feel more anxiety on this subject than New York. Her seacoast is extensive. A very important district of the State is an island. The State itself is penetrated by a large navigable river for more than fifty leagues. The great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. Should a war be the result of the precarious situation of European affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. In the present condition of America, the States more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them. The power of regulating and calling forth the militia has been already sufficiently vindicated and explained. The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. This power, also, has been examined already with much attention, and has, I trust, been clearly shown to be necessary, both in the extent and form given to it by the Constitution. I will address one additional reflection only to those who contend that the power ought to have been restrained to external--taxation by which they mean, taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. In a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare." But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare." The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation! PUBLIUS FEDERALIST No. 42 The Powers Conferred by the Constitution Further Considered From the New York Packet. Tuesday, January 22, 1788. MADISON To the People of the State of New York: THE SECOND class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations. This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations. The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the States; and that a power of appointing and receiving "other public ministers and consuls," is expressly and very properly added to the former provision concerning ambassadors. The term ambassador, if taken strictly, as seems to be required by the second of the articles of Confederation, comprehends the highest grade only of public ministers, and excludes the grades which the United States will be most likely to prefer, where foreign embassies may be necessary. And under no latitude of construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice of Congress, to employ the inferior grades of public ministers, and to send and receive consuls. It is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of American consuls into foreign countries may PERHAPS be covered under the authority, given by the ninth article of the Confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the United States. But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been nowhere provided for. A supply of the omission is one of the lesser instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which Congress have been betrayed, or forced by the defects of the Confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new Constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. The power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper. The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren! Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. The powers included in the THIRD class are those which provide for the harmony and proper intercourse among the States. Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and securities of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads. The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the Constitution has supplied a material omission in the articles of Confederation. The authority of the existing Congress is restrained to the regulation of coin STRUCK by their own authority, or that of the respective States. It must be seen at once that the proposed uniformity in the VALUE of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States. The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. The regulation of weights and measures is transferred from the articles of Confederation, and is founded on like considerations with the preceding power of regulating coin. The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared "that the FREE INHABITANTS of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of FREE CITIZENS in the several States; and THE PEOPLE of each State shall, in every other, enjoy all the privileges of trade and commerce," etc. There is a confusion of language here, which is remarkable. Why the terms FREE INHABITANTS are used in one part of the article, FREE CITIZENS in another, and PEOPLE in another; or what was meant by superadding to "all privileges and immunities of free citizens," "all the privileges of trade and commerce," cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of FREE INHABITANTS of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of FREE CITIZENS of the latter; that is, to greater privileges than they may be entitled to in their own State: so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term "inhabitants" to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States. The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question. The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care. PUBLIUS FEDERALIST No. 43 The Same Subject Continued (The Powers Conferred by the Constitution Further Considered) For the Independent Journal. Wednesday, January 23, 1788 MADISON To the People of the State of New York: THE FOURTH class comprises the following miscellaneous powers: 1. A power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries." The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress. 2. "To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislatures of the States in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated. The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated, by requiring the concurrence of the States concerned, in every such establishment. 3. "To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained." As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author. 4. "To admit new States into the Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress." In the articles of Confederation, no provision is found on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States; and the other COLONIES, by which were evidently meant the other British colonies, at the discretion of nine States. The eventual establishment of NEW STATES seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which Congress have been led by it. With great propriety, therefore, has the new system supplied the defect. The general precaution, that no new States shall be formed, without the concurrence of the federal authority, and that of the States concerned, is consonant to the principles which ought to govern such transactions. The particular precaution against the erection of new States, by the partition of a State without its consent, quiets the jealousy of the larger States; as that of the smaller is quieted by a like precaution, against a junction of States without their consent. 5. "To dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," with a proviso, that "nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." This is a power of very great importance, and required by considerations similar to those which show the propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public. 6. "To guarantee to every State in the Union a republican form of government; to protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence." In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be SUBSTANTIALLY maintained. But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution? Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. "As the confederate republic of Germany," says Montesquieu, "consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland." "Greece was undone," he adds, "as soon as the king of Macedon obtained a seat among the Amphictyons." In the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. But the authority extends no further than to a GUARANTY of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance. A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature. At first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it. Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure. Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, "that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound." 7. "To consider all debts contracted, and engagements entered into, before the adoption of this Constitution, as being no less valid against the United States, under this Constitution, than under the Confederation." This can only be considered as a declaratory proposition; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations. Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States, as well as against them; and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights. The authors of this discovery may be told, what few others need to be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side, necessarily involves a validity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told, that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would DARE, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned. 8. "To provide for amendments to be ratified by three fourths of the States under two exceptions only." That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it. 9. "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same." This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable. Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it? The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other. PUBLIUS FEDERALIST No. 44 Restrictions on the Authority of the Several States From the New York Packet. Friday, January 25, 1788. MADISON To the People of the State of New York: A FIFTH class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several States: 1. "No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver a legal tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility." The prohibition against treaties, alliances, and confederations makes a part of the existing articles of Union; and for reasons which need no explanation, is copied into the new Constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible. The right of coining money, which is here taken from the States, was left in their hands by the Confederation, as a concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular States could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the general authority. The extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it. In addition to these persuasive considerations, it may be observed, that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. Had every State a right to regulate the value of its coin, there might be as many different currencies as States, and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other States be injured, and animosities be kindled among the States themselves. The subjects of foreign powers might suffer from the same cause, and hence the Union be discredited and embroiled by the indiscretion of a single member. No one of these mischiefs is less incident to a power in the States to emit paper money, than to coin gold or silver. The power to make any thing but gold and silver a tender in payment of debts, is withdrawn from the States, on the same principle with that of issuing a paper currency. Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment. 2. "No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay." The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion. The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. Of these the first is, the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper. But have they considered whether a better form could have been substituted? There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper"; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "EXPRESSLY" with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted. Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the PARTICULAR POWERS, which are the means of attaining the OBJECT of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same. Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, NOT NECESSARY OR PROPER, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union. If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed. 2. "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding." The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors. In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the proposed Constitution. In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members. 3. "The Senators and Representatives, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution." It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States, in favor of the State constitutions. Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive. The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States. 4. Among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, I pass them over in this. We have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union. The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved. PUBLIUS FEDERALIST No. 45 The Alleged Danger From the Powers of the Union to the State Governments. Considered For the Independent Journal. Saturday, January 26, 1788 MADISON To the People of the State of New York: HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States. The adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular States. But if the Union, as has been shown, be essential to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us. Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale. We have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Achaean league it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. The Lycian Confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities. These cases are the more worthy of our attention, as the external causes by which the component parts were pressed together were much more numerous and powerful than in our case; and consequently less powerful ligaments within would be sufficient to bind the members to the head, and to each other. In the feudal system, we have seen a similar propensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroachments. Had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would at this time consist of as many independent princes as there were formerly feudatory barons. The State governments will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members. The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add, of possibility, and in this view alone, we may pronounce the advantage of the States to be decisive. If the federal government is to have collectors of revenue, the State governments will have theirs also. And as those of the former will be principally on the seacoast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States. Indeed it is extremely probable, that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed with the correspondent authority of the Union. Should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of State officers in the opposite scale. Within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight, whose influence would lie on the side of the State. The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future Congress will have to require them of individual citizens; and the latter will be no more bound than the States themselves have been, to pay the quotas respectively taxed on them. Had the States complied punctually with the articles of Confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion, that the State governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued, would be to say at once, that the existence of the State governments is incompatible with any system whatever that accomplishes the essential purposes of the Union. PUBLIUS FEDERALIST No. 46 The Influence of the State and Federal Governments Compared From the New York Packet. Tuesday, January 29, 1788. MADISON To the People of the State of New York: RESUMING the subject of the last paper, I proceed to inquire whether the federal government or the State governments will have the advantage with regard to the predilection and support of the people. Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States. I assume this position here as it respects the first, reserving the proofs for another place. The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States. Into the administration of these a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant. And with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline. Experience speaks the same language in this case. The federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly whilst the independent fund of paper emissions was in credit, an activity and importance as great as it can well have in any future circumstances whatever. It was engaged, too, in a course of measures which had for their object the protection of everything that was dear, and the acquisition of everything that could be desirable to the people at large. It was, nevertheless, invariably found, after the transient enthusiasm for the early Congresses was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens. If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered. The remaining points on which I propose to compare the federal and State governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other. It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage. But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States. What is the spirit that has in general characterized the proceedings of Congress? A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular States. I mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued; much less, that its views will be as confined as those of the State legislatures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual States, or the prerogatives of their governments. The motives on the part of the State governments, to augment their prerogatives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members. Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. PUBLIUS FEDERALIST No. 47 The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts. For the Independent Journal. Wednesday, January 30, 1788. MADISON To the People of the State of New York: HAVING reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point. The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner." Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR." Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author. If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring "that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND AMITY." Her constitution accordingly mixes these departments in several respects. The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The President, who is the head of the executive department, is the presiding member also of the Senate; and, besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department. Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department. The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares "that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them." This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves. I pass over the constitutions of Rhode Island and Connecticut, because they were formed prior to the Revolution, and even before the principle under examination had become an object of political attention. The constitution of New York contains no declaration on this subject; but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. It gives, nevertheless, to the executive magistrate, a partial control over the legislative department; and, what is more, gives a like control to the judiciary department; and even blends the executive and judiciary departments in the exercise of this control. In its council of appointment members of the legislative are associated with the executive authority, in the appointment of officers, both executive and judiciary. And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department. The constitution of New Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary, or surrogate of the State; is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches. The same legislative branch acts again as executive council of the governor, and with him constitutes the Court of Appeals. The members of the judiciary department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other. According to the constitution of Pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates. In conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judiciary as well as executive. The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature; and the executive power of pardoning in certain cases, to be referred to the same department. The members of the executive council are made EX-OFFICIO justices of peace throughout the State. In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others, appointed, three by each of the legislative branches constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges. Throughout the States, it appears that the members of the legislature may at the same time be justices of the peace; in this State, the members of one branch of it are EX-OFFICIO justices of the peace; as are also the members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. All officers may be removed on address of the legislature. Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department. The language of Virginia is still more pointed on this subject. Her constitution declares, "that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly." Yet we find not only this express exception, with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. The executive prerogative of pardon, also, is in one case vested in the legislative department. The constitution of North Carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department. In South Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the State. In the constitution of Georgia, where it is declared "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other," we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. Even justices of the peace are to be appointed by the legislature. In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper. PUBLIUS FEDERALIST No. 48 These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other. From the New York Packet. Friday, February 1, 1788. MADISON To the People of the State of New York: IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities. The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting Notes on the State of Virginia, p. 195. "All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, IN MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR." The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the constitution, was "to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution." In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances. A great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature. The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution. Executive powers had been usurped. The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. Those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. There are three observations, however, which ought to be made on this head: FIRST, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief; SECOND, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; THIRD, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands. The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. PUBLIUS FEDERALIST No. 49 Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention. For the Independent Journal. Saturday, February 2, 1788. MADISON To the People of the State of New York: THE author of the "Notes on the State of Virginia," quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked. His proposition is, "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or CORRECTING BREACHES OF IT, a convention shall be called for the purpose." As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance? There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself. In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. But the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them. It might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government. We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision. PUBLIUS FEDERALIST No. 50 Periodical Appeals to the People Considered From the New York Packet. Tuesday, February 5, 1788. MADISON To the People of the State of New York: IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for ENFORCING the Constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for ALTERING the Constitution itself. In the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge. If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. The scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, "whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other." This important and novel experiment in politics merits, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as applied to the case under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed. First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the State. Second. It appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several other members of the executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period. Third. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same. Fourth. It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places. Fifth. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices. PUBLIUS FEDERALIST No. 51 The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments. For the Independent Journal. Wednesday, February 6, 1788. MADISON To the People of the State of New York: TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other--that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority--that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE. PUBLIUS FEDERALIST No. 52 The House of Representatives From the New York Packet. Friday, February 8, 1788. MADISON To the People of the State of New York: FROM the more general inquiries pursued in the four last papers, I pass on to a more particular examination of the several parts of the government. I shall begin with the House of Representatives. The first view to be taken of this part of the government relates to the qualifications of the electors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures. The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution. The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith. The term for which the representatives are to be elected falls under a second view which may be taken of this branch. In order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful. First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. But what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. Let us consult experience, the guide that ought always to be followed whenever it can be found. The scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. And even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. The first to which this character ought to be applied, is the House of Commons in Great Britain. The history of this branch of the English Constitution, anterior to the date of Magna Charta, is too obscure to yield instruction. The very existence of it has been made a question among political antiquaries. The earliest records of subsequent date prove that parliaments were to SIT only every year; not that they were to be ELECTED every year. And even these annual sessions were left so much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions were often contrived by royal ambition. To remedy this grievance, it was provided by a statute in the reign of Charles II, that the intermissions should not be protracted beyond a period of three years. On the accession of William III, when a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people that parliaments ought to be held FREQUENTLY. By another statute, which passed a few years later in the same reign, the term "frequently," which had alluded to the triennial period settled in the time of Charles II, is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the termination of the former. The last change, from three to seven years, is well known to have been introduced pretty early in the present century, under an alarm for the Hanoverian succession. From these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. And if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents. Elections in Ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince, or some other contingent event. The parliament which commenced with George II. was continued throughout his whole reign, a period of about thirty-five years. The only dependence of the representatives on the people consisted in the right of the latter to supply occasional vacancies by the election of new members, and in the chance of some event which might produce a general new election. The ability also of the Irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. Of late these shackles, if I mistake not, have been broken; and octennial parliaments have besides been established. What effect may be produced by this partial reform, must be left to further experience. The example of Ireland, from this view of it, can throw but little light on the subject. As far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves. Let us bring our inquiries nearer home. The example of these States, when British colonies, claims particular attention, at the same time that it is so well known as to require little to be said on it. The principle of representation, in one branch of the legislature at least, was established in all of them. But the periods of election were different. They varied from one to seven years. Have we any reason to infer, from the spirit and conduct of the representatives of the people, prior to the Revolution, that biennial elections would have been dangerous to the public liberties? The spirit which everywhere displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement This remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent Virginia was the colony which stood first in resisting the parliamentary usurpations of Great Britain; it was the first also in espousing, by public act, the resolution of independence. In Virginia, nevertheless, if I have not been misinformed, elections under the former government were septennial. This particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in SEPTENNIAL elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and I conceive it to be a very substantial proof, that the liberties of the people can be in no danger from BIENNIAL elections. The conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. The first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the British Parliament; and which, with a few exceptions, was exercised by the colonial assemblies and the Irish legislature. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other. PUBLIUS FEDERALIST No. 53 The Same Subject Continued (The House of Representatives) For the Independent Journal. Saturday, February 9, 1788. MADISON To the People of the State of New York: I SHALL here, perhaps, be reminded of a current observation, "that where annual elections end, tyranny begins." If it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. I need not look for a proof beyond the case before us. What is the reason on which this proverbial observation is founded? No man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power. Happily for mankind, liberty is not, in this respect, confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society. The election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual; and if circumstances may require a deviation from the rule on one side, why not also on the other side? Turning our attention to the periods established among ourselves, for the election of the most numerous branches of the State legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. In Connecticut and Rhode Island, the periods are half-yearly. In the other States, South Carolina excepted, they are annual. In South Carolina they are biennial--as is proposed in the federal government. Here is a difference, as four to one, between the longest and shortest periods; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, than South Carolina; or that either the one or the other of these States is distinguished in these respects, and by these causes, from the States whose elections are different from both. In searching for the grounds of this doctrine, I can discover but one, and that is wholly inapplicable to our case. The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legislative provision. They have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. They have in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by the people. An attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone; and has led them to seek for some security to liberty, against the danger to which it is exposed. Where no Constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the United States, was to be attempted. Some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions? The most simple and familiar portion of time, applicable to the subject was that of a year; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. But what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount Constitution? Or who will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government? The second question stated is, whether biennial elections be necessary or useful. The propriety of answering this question in the affirmative will appear from several very obvious considerations. No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. A part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations. Another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. The period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service. The period of legislative service established in most of the States for the more numerous branch is, as we have seen, one year. The question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for State legislation? The very statement of the question, in this form, suggests the answer that ought to be given to it. In a single State, the requisite knowledge relates to the existing laws which are uniform throughout the State, and with which all the citizens are more or less conversant; and to the general affairs of the State, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people. The great theatre of the United States presents a very different scene. The laws are so far from being uniform, that they vary in every State; whilst the public affairs of the Union are spread throughout a very extensive region, and are extremely diversified by the local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire. Yet some knowledge of the affairs, and even of the laws, of all the States, ought to be possessed by the members from each of the States. How can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulations of the different States? How can the trade between the different States be duly regulated, without some knowledge of their relative situations in these and other respects? How can taxes be judiciously imposed and effectually collected, if they be not accommodated to the different laws and local circumstances relating to these objects in the different States? How can uniform regulations for the militia be duly provided, without a similar knowledge of many internal circumstances by which the States are distinguished from each other? These are the principal objects of federal legislation, and suggest most forcibly the extensive information which the representatives ought to acquire. The other interior objects will require a proportional degree of information with regard to them. It is true that all these difficulties will, by degrees, be very much diminished. The most laborious task will be the proper inauguration of the government and the primeval formation of a federal code. Improvements on the first draughts will every year become both easier and fewer. Past transactions of the government will be a ready and accurate source of information to new members. The affairs of the Union will become more and more objects of curiosity and conversation among the citizens at large. And the increased intercourse among those of different States will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws. But with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single State, as to justify the longer period of service assigned to those who are to transact it. A branch of knowledge which belongs to the acquirements of a federal representative, and which has not been mentioned is that of foreign affairs. In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government. And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation. Some portion of this knowledge may, no doubt, be acquired in a man's closet; but some of it also can only be derived from the public sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature. There are other considerations, of less importance, perhaps, but which are not unworthy of notice. The distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circumstance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years. No argument can be drawn on this subject, from the case of the delegates to the existing Congress. They are elected annually, it is true; but their re-election is considered by the legislative assemblies almost as a matter of course. The election of the representatives by the people would not be governed by the same principle. A few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. The greater the proportion of new members, and the less the information of the bulk of the members the more apt will they be to fall into the snares that may be laid for them. This remark is no less applicable to the relation which will subsist between the House of Representatives and the Senate. It is an inconvenience mingled with the advantages of our frequent elections even in single States, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. If a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. Hence, a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns. Were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant States. Each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members; and whatever improvements may be suggested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat. All these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people. PUBLIUS FEDERALIST No. 54 The Apportionment of Members Among the States From the New York Packet. Tuesday, February 12, 1788. MADISON To the People of the State of New York: THE next view which I shall take of the House of Representatives relates to the appointment of its members to the several States which is to be determined by the same rule with that of direct taxes. It is not contended that the number of people in each State ought not to be the standard for regulating the proportion of those who are to represent the people of each State. The establishment of the same rule for the appointment of taxes, will probably be as little contested; though the rule itself in this case, is by no means founded on the same principle. In the former case, the rule is understood to refer to the personal rights of the people, with which it has a natural and universal connection. In the latter, it has reference to the proportion of wealth, of which it is in no case a precise measure, and in ordinary cases a very unfit one. But notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the States, it is evidently the least objectionable among the practicable rules, and had too recently obtained the general sanction of America, not to have found a ready preference with the convention. All this is admitted, it will perhaps be said; but does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? Slaves are considered as property, not as persons. They ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. This is the objection, as I understand it, stated in its full force. I shall be equally candid in stating the reasoning which may be offered on the opposite side. "We subscribe to the doctrine," might one of our Southern brethren observe, "that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. But we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another--the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others--the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. "This question may be placed in another light. It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants, when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted? Could it be reasonably expected, that the Southern States would concur in a system, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light, when advantages were to be conferred? Might not some surprise also be expressed, that those who reproach the Southern States with the barbarous policy of considering as property a part of their human brethren, should themselves contend, that the government to which all the States are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain? "It may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the States possessing them. They neither vote themselves nor increase the votes of their masters. Upon what principle, then, ought they to be taken into the federal estimate of representation? In rejecting them altogether, the Constitution would, in this respect, have followed the very laws which have been appealed to as the proper guide. "This objection is repelled by a single observation. It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate. The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives. In this point of view the Southern States might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular States towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens. A rigorous adherence, however, to this principle, is waived by those who would be gainers by it. All that they ask is that equal moderation be shown on the other side. Let the case of the slaves be considered, as it is in truth, a peculiar one. Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the SLAVE as divested of two fifths of the MAN. "After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defense? We have hitherto proceeded on the idea that representation related to persons only, and not at all to property. But is it a just idea? Government is instituted no less for protection of the property, than of the persons, of individuals. The one as well as the other, therefore, may be considered as represented by those who are charged with the government. Upon this principle it is, that in several of the States, and particularly in the State of New York, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government. In the federal Constitution, this policy does not prevail. The rights of property are committed into the same hands with the personal rights. Some attention ought, therefore, to be paid to property in the choice of those hands. "For another reason, the votes allowed in the federal legislature to the people of each State, ought to bear some proportion to the comparative wealth of the States. States have not, like individuals, an influence over each other, arising from superior advantages of fortune. If the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. A State possesses no such influence over other States. It is not probable that the richest State in the Confederacy will ever influence the choice of a single representative in any other State. Nor will the representatives of the larger and richer States possess any other advantage in the federal legislature, over the representatives of other States, than what may result from their superior number alone. As far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation. The new Constitution is, in this respect, materially different from the existing Confederation, as well as from that of the United Netherlands, and other similar confederacies. In each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. Hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. Under the proposed Constitution, the federal acts will take effect without the necessary intervention of the individual States. They will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller State, or a State more or less wealthy or powerful, will have an equal weight and efficacy: in the same manner as the votes individually given in a State legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes." Such is the reasoning which an advocate for the Southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet, on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established. In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the States, it is of great importance that the States should feel as little bias as possible, to swell or to reduce the amount of their numbers. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality. PUBLIUS FEDERALIST No. 55 The Total Number of the House of Representatives For the Independent Journal. Wednesday, February 13, 1788. MADISON To the People of the State of New York: THE number of which the House of Representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated. Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed. The charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives. In general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several States is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. Passing over the difference between the smallest and largest States, as Delaware, whose most numerous branch consists of twenty-one representatives, and Massachusetts, where it amounts to between three and four hundred, a very considerable difference is observable among States nearly equal in population. The number of representatives in Pennsylvania is not more than one fifth of that in the State last mentioned. New York, whose population is to that of South Carolina as six to five, has little more than one third of the number of representatives. As great a disparity prevails between the States of Georgia and Delaware or Rhode Island. In Pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. In Rhode Island, they bear a proportion of at least one for every thousand. And according to the constitution of Georgia, the proportion may be carried to one to every ten electors; and must unavoidably far exceed the proportion in any of the other States. Another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode Island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied to the State of Delaware, would reduce the representative assembly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob. It is necessary also to recollect here the observations which were applied to the case of biennial elections. For the same reason that the limited powers of the Congress, and the control of the State legislatures, justify less frequent elections than the public safely might otherwise require, the members of the Congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies. With these general ideas in our mind, let us weigh the objections which have been stated against the number of members proposed for the House of Representatives. It is said, in the first place, that so small a number cannot be safely trusted with so much power. The number of which this branch of the legislature is to consist, at the outset of the government, will be sixty-five. Within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. It will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred. Estimating the negroes in the proportion of three fifths, it can scarcely be doubted that the population of the United States will by that time, if it does not already, amount to three millions. At the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hundred, and of fifty years, to four hundred. This is a number which, I presume, will put an end to all fears arising from the smallness of the body. I take for granted here what I shall, in answering the fourth objection, hereafter show, that the number of representatives will be augmented from time to time in the manner provided by the Constitution. On a contrary supposition, I should admit the objection to have very great weight indeed. The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the United States? I must own that I could not give a negative answer to this question, without first obliterating every impression which I have received with regard to the present genius of the people of America, the spirit which actuates the State legislatures, and the principles which are incorporated with the political character of every class of citizens I am unable to conceive that the people of America, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery. I am unable to conceive that the State legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents. I am equally unable to conceive that there are at this time, or can be in any short time, in the United States, any sixty-five or a hundred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the solemn trust committed to them. What change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no part of my pretensions. But judging from the circumstances now before us, and from the probable state of them within a moderate period of time, I must pronounce that the liberties of America cannot be unsafe in the number of hands proposed by the federal Constitution. From what quarter can the danger proceed? Are we afraid of foreign gold? If foreign gold could so easily corrupt our federal rulers and enable them to ensnare and betray their constituents, how has it happened that we are at this time a free and independent nation? The Congress which conducted us through the Revolution was a less numerous body than their successors will be; they were not chosen by, nor responsible to, their fellowcitizens at large; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term. They held their consultations always under the veil of secrecy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to be hoped will ever be the case with our future representatives; and from the greatness of the prize at stake, and the eagerness of the party which lost it, it may well be supposed that the use of other means than force would not have been scrupled. Yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny. Is the danger apprehended from the other branches of the federal government? But where are the means to be found by the President, or the Senate, or both? Their emoluments of office, it is to be presumed, will not, and without a previous corruption of the House of Representatives cannot, more than suffice for very different purposes; their private fortunes, as they must all be American citizens, cannot possibly be sources of danger. The only means, then, which they can possess, will be in the dispensation of appointments. Is it here that suspicion rests her charge? Sometimes we are told that this fund of corruption is to be exhausted by the President in subduing the virtue of the Senate. Now, the fidelity of the other House is to be the victim. The improbability of such a mercenary and perfidious combination of the several members of government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the Constitution has provided a still further safeguard. The members of the Congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. No offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties: and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another. PUBLIUS FEDERALIST No. 56 The Same Subject Continued (The Total Number of the House of Representatives) For the Independent Journal. Saturday, February 16, 1788. MADISON To the People of the State of New York: THE SECOND charge against the House of Representatives is, that it will be too small to possess a due knowledge of the interests of its constituents. As this objection evidently proceeds from a comparison of the proposed number of representatives with the great extent of the United States, the number of their inhabitants, and the diversity of their interests, without taking into view at the same time the circumstances which will distinguish the Congress from other legislative bodies, the best answer that can be given to it will be a brief explanation of these peculiarities. It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority. What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia. A proper regulation of commerce requires much information, as has been elsewhere remarked; but as far as this information relates to the laws and local situation of each individual State, a very few representatives would be very sufficient vehicles of it to the federal councils. Taxation will consist, in a great measure, of duties which will be involved in the regulation of commerce. So far the preceding remark is applicable to this object. As far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the State may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the State? Divide the largest State into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the State, framed by representatives from every part of it, will be almost of themselves a sufficient guide. In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. A skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the States, the more simple objects will be preferred. To be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the State codes, we need only suppose for a moment that this or any other State were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it? The federal councils will derive great advantage from another circumstance. The representatives of each State will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts, but will probably in all cases have been members, and may even at the very time be members, of the State legislature, where all the local information and interests of the State are assembled, and from whence they may easily be conveyed by a very few hands into the legislature of the United States. (The observations made on the subject of taxation apply with greater force to the case of the militia. For however different the rules of discipline may be in different States, they are the same throughout each particular State; and depend on circumstances which can differ but little in different parts of the same State.)(E1) (With regard to the regulation of the militia, there are scarcely any circumstances in reference to which local knowledge can be said to be necessary. The general face of the country, whether mountainous or level, most fit for the operations of infantry or cavalry, is almost the only consideration of this nature that can occur. The art of war teaches general principles of organization, movement, and discipline, which apply universally.)(E1) The attentive reader will discern that the reasoning here used, to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. This information, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single State, but of those among different States. Taking each State by itself, its laws are the same, and its interests but little diversified. A few men, therefore, will possess all the knowledge requisite for a proper representation of them. Were the interests and affairs of each individual State perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole State might be competently represented by a single member taken from any part of it. On a comparison of the different States together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. Whilst a few representatives, therefore, from each State, may bring with them a due knowledge of their own State, every representative will have much information to acquire concerning all the other States. The changes of time, as was formerly remarked, on the comparative situation of the different States, will have an assimilating effect. The effect of time on the internal affairs of the States, taken singly, will be just the contrary. At present some of the States are little more than a society of husbandmen. Few of them have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. These, however, will in all of them be the fruits of a more advanced population, and will require, on the part of each State, a fuller representation. The foresight of the convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government. The experience of Great Britain, which presents to mankind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these inquiries, corroborates the result of the reflections which we have just made. The number of inhabitants in the two kingdoms of England and Scotland cannot be stated at less than eight millions. The representatives of these eight millions in the House of Commons amount to five hundred and fifty-eight. Of this number, one ninth are elected by three hundred and sixty-four persons, and one half, by five thousand seven hundred and twenty-three persons.(1) It cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add any thing either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. On the contrary, it is notorious, that they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. They might therefore, with great propriety, be considered as something more than a mere deduction from the real representatives of the nation. We will, however, consider them in this light alone, and will not extend the deduction to a considerable number of others, who do not reside among their constitutents, are very faintly connected with them, and have very little particular knowledge of their affairs. With all these concessions, two hundred and seventy-nine persons only will be the depository of the safety, interest, and happiness of eight millions that is to say, there will be one representative only to maintain the rights and explain the situation of TWENTY-EIGHT THOUSAND SIX HUNDRED AND SEVENTY constitutents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. Yet it is very certain, not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the British code are chargeable, in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. Allowing to this case the weight which is due to it, and comparing it with that of the House of Representatives as above explained it seems to give the fullest assurance, that a representative for every THIRTY THOUSAND INHABITANTS will render the latter both a safe and competent guardian of the interests which will be confided to it. PUBLIUS 1. Burgh's "Political Disquisitions." E1. Two versions of this paragraph appear in different editions. FEDERALIST No. 57 The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation. From the New York Packet. Tuesday, February 19, 1788. MADISON To the People of the State of New York: THE THIRD charge against the House of Representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few. Of all the objections which have been framed against the federal Constitution, this is perhaps the most extraordinary. Whilst the objection itself is levelled against a pretended oligarchy, the principle of it strikes at the very root of republican government. The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people. Let me now ask what circumstance there is in the constitution of the House of Representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? Let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens? Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people. If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents. In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements. In the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns. Ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life. But the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment. In the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people. All these securities, however, would be found very insufficient without the restraint of frequent elections. Hence, in the fourth place, the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America--a spirit which nourishes freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty. Such will be the relation between the House of Representatives and their constituents. Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise? Are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the people? Are they not the identical means on which every State government in the Union relies for the attainment of these important ends? What then are we to understand by the objection which this paper has combated? What are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them? Were the objection to be read by one who had not seen the mode prescribed by the Constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the State constitutions was in some respect or other, very grossly departed from. We have seen how far such a supposition would err, as to the two first points. Nor would it, in fact, be less erroneous as to the last. The only difference discoverable between the two cases is, that each representative of the United States will be elected by five or six thousand citizens; whilst in the individual States, the election of a representative is left to about as many hundreds. Will it be pretended that this difference is sufficient to justify an attachment to the State governments, and an abhorrence to the federal government? If this be the point on which the objection turns, it deserves to be examined. Is it supported by REASON? This cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. Reason, on the contrary, assures us, that as in so great a number a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the ambitious or the bribes of the rich. Is the CONSEQUENCE from this doctrine admissible? If we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the government does not require as many of them as will amount to one for that number of citizens? Is the doctrine warranted by FACTS? It was shown in the last paper, that the real representation in the British House of Commons very little exceeds the proportion of one for every thirty thousand inhabitants. Besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. To this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money. Notwithstanding these unfavorable circumstances, and notwithstanding some very unequal laws in the British code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many. But we need not resort to foreign experience on this subject. Our own is explicit and decisive. The districts in New Hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for her representatives in the Congress. Those of Massachusetts are larger than will be necessary for that purpose; and those of New York still more so. In the last State the members of Assembly for the cities and counties of New York and Albany are elected by very nearly as many voters as will be entitled to a representative in the Congress, calculating on the number of sixty-five representatives only. It makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. If the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. Pennsylvania is an additional example. Some of her counties, which elect her State representatives, are almost as large as her districts will be by which her federal representatives will be elected. The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms, however, but one county, in which every elector votes for each of its representatives in the State legislature. And what may appear to be still more directly to our purpose, the whole city actually elects a SINGLE MEMBER for the executive council. This is the case in all the other counties of the State. Are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? Has it appeared on trial that the senators of New Hampshire, Massachusetts, and New York, or the executive council of Pennsylvania, or the members of the Assembly in the two last States, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other States by very small divisions of the people? But there are cases of a stronger complexion than any which I have yet quoted. One branch of the legislature of Connecticut is so constituted that each member of it is elected by the whole State. So is the governor of that State, of Massachusetts, and of this State, and the president of New Hampshire. I leave every man to decide whether the result of any one of these experiments can be said to countenance a suspicion, that a diffusive mode of choosing representatives of the people tends to elevate traitors and to undermine the public liberty. PUBLIUS FEDERALIST No. 58 Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands. Considered For the Independent Journal Wednesday, February 20, 1788. MADISON To the People of the State of New York: THE remaining charge against the House of Representatives, which I am to examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand. It has been admitted, that this objection, if well supported, would have great weight. The following observations will show that, like most other objections against the Constitution, it can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld. 1. Those who urge the objection seem not to have recollected that the federal Constitution will not suffer by a comparison with the State constitutions, in the security provided for a gradual augmentation of the number of representatives. The number which is to prevail in the first instance is declared to be temporary. Its duration is limited to the short term of three years. Within every successive term of ten years a census of inhabitants is to be repeated. The unequivocal objects of these regulations are, first, to readjust, from time to time, the apportionment of representatives to the number of inhabitants, under the single exception that each State shall have one representative at least; secondly, to augment the number of representatives at the same periods, under the sole limitation that the whole number shall not exceed one for every thirty thousand inhabitants. If we review the constitutions of the several States, we shall find that some of them contain no determinate regulations on this subject, that others correspond pretty much on this point with the federal Constitution, and that the most effectual security in any of them is resolvable into a mere directory provision. 2. As far as experience has taken place on this subject, a gradual increase of representatives under the State constitutions has at least kept pace with that of the constituents, and it appears that the former have been as ready to concur in such measures as the latter have been to call for them. 3. There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States: in the former, consequently, the larger States will have most weight; in the latter, the advantage will be in favor of the smaller States. From this circumstance it may with certainty be inferred that the larger States will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. And it so happens that four only of the largest will have a majority of the whole votes in the House of Representatives. Should the representatives or people, therefore, of the smaller States oppose at any time a reasonable addition of members, a coalition of a very few States will be sufficient to overrule the opposition; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the Constitution. It may be alleged, perhaps, that the Senate would be prompted by like motives to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. This is the difficulty which has probably created the most serious apprehensions in the jealous friends of a numerous representation. Fortunately it is among the difficulties which, existing only in appearance, vanish on a close and accurate inspection. The following reflections will, if I mistake not, be admitted to be conclusive and satisfactory on this point. Notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the House, composed of the greater number of members, when supported by the more powerful States, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses. This advantage must be increased by the consciousness, felt by the same side of being supported in its demands by right, by reason, and by the Constitution; and the consciousness, on the opposite side, of contending against the force of all these solemn considerations. It is farther to be considered, that in the gradation between the smallest and largest States, there are several, which, though most likely in general to arrange themselves among the former are too little removed in extent and population from the latter, to second an opposition to their just and legitimate pretensions. Hence it is by no means certain that a majority of votes, even in the Senate, would be unfriendly to proper augmentations in the number of representatives. It will not be looking too far to add, that the senators from all the new States may be gained over to the just views of the House of Representatives, by an expedient too obvious to be overlooked. As these States will, for a great length of time, advance in population with peculiar rapidity, they will be interested in frequent reapportionments of the representatives to the number of inhabitants. The large States, therefore, who will prevail in the House of Representatives, will have nothing to do but to make reapportionments and augmentations mutually conditions of each other; and the senators from all the most growing States will be bound to contend for the latter, by the interest which their States will feel in the former. These considerations seem to afford ample security on this subject, and ought alone to satisfy all the doubts and fears which have been indulged with regard to it. Admitting, however, that they should all be insufficient to subdue the unjust policy of the smaller States, or their predominant influence in the councils of the Senate, a constitutional and infallible resource still remains with the larger States, by which they will be able at all times to accomplish their just purposes. The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse--that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. But will not the House of Representatives be as much interested as the Senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the Senate? Or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. Those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. To those causes we are to ascribe the continual triumph of the British House of Commons over the other branches of the government, whenever the engine of a money bill has been employed. An absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. The utmost degree of firmness that can be displayed by the federal Senate or President, will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles. In this review of the Constitution of the House of Representatives, I have passed over the circumstances of economy, which, in the present state of affairs, might have had some effect in lessening the temporary number of representatives, and a disregard of which would probably have been as rich a theme of declamation against the Constitution as has been shown by the smallness of the number proposed. I omit also any remarks on the difficulty which might be found, under present circumstances, in engaging in the federal service a large number of such characters as the people will probably elect. One observation, however, I must be permitted to add on this subject as claiming, in my judgment, a very serious attention. It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. Now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand. On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed. As connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us. PUBLIUS FEDERALIST No. 59 Concerning the Power of Congress to Regulate the Election of Members From the New York Packet. Friday, February 22, 1788. HAMILTON To the People of the State of New York: THE natural order of the subject leads us to consider, in this place, that provision of the Constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. It is in these words: "The TIMES, PLACES, and MANNER of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter SUCH REGULATIONS, except as to the PLACES of choosing senators."(1) This provision has not only been declaimed against by those who condemn the Constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system. I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. Its propriety rests upon the evidence of this plain proposition, that EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every just reasoner will, at first sight, approve an adherence to this rule, in the work of the convention; and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. Even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to regret a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the seed of future weakness, and perhaps anarchy. It will not be alleged, that an election law could have been framed and inserted in the Constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied, that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been preferred by the convention. They have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. Nothing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose to say, that a neglect or omission of this kind would not be likely to take place. The constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. Nor has any satisfactory reason been yet assigned for incurring that risk. The extravagant surmises of a distempered jealousy can never be dignified with that character. If we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the general government. And as it is more consonant to the rules of a just theory, to trust the Union with the care of its own existence, than to transfer that care to any other hands, if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where it would unnaturally be placed. Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? The violation of principle, in this case, would have required no comment; and, to an unbiased observer, it will not be less apparent in the project of subjecting the existence of the national government, in a similar respect, to the pleasure of the State governments. An impartial view of the matter cannot fail to result in a conviction, that each, as far as possible, ought to depend on itself for its own preservation. As an objection to this position, it may be remarked that the constitution of the national Senate would involve, in its full extent, the danger which it is suggested might flow from an exclusive power in the State legislatures to regulate the federal elections. It may be alleged, that by declining the appointment of Senators, they might at any time give a fatal blow to the Union; and from this it may be inferred, that as its existence would be thus rendered dependent upon them in so essential a point, there can be no objection to intrusting them with it in the particular case under consideration. The interest of each State, it may be added, to maintain its representation in the national councils, would be a complete security against an abuse of the trust. This argument, though specious, will not, upon examination, be found solid. It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government. But it will not follow that, because they have a power to do this in one instance, they ought to have it in every other. There are cases in which the pernicious tendency of such a power may be far more decisive, without any motive equally cogent with that which must have regulated the conduct of the convention in respect to the formation of the Senate, to recommend their admission into the system. So far as that construction may expose the Union to the possibility of injury from the State legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the national government. If this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision. But however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites. It may be easily discerned also that the national government would run a much greater risk from a power in the State legislatures over the elections of its House of Representatives, than from their power of appointing the members of its Senate. The senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated and replenished every two years; and no State is to be entitled to more than two senators; a quorum of the body is to consist of sixteen members. The joint result of these circumstances would be, that a temporary combination of a few States to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body; and it is not from a general and permanent combination of the States that we can have any thing to fear. The first might proceed from sinister designs in the leading members of a few of the State legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people, which will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general government to the advancement of their happiness in which event no good citizen could desire its continuance. But with regard to the federal House of Representatives, there is intended to be a general election of members once in two years. If the State legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the Union, if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election. I shall not deny, that there is a degree of weight in the observation, that the interests of each State, to be represented in the federal councils, will be a security against the abuse of a power over its elections in the hands of the State legislatures. But the security will not be considered as complete, by those who attend to the force of an obvious distinction between the interest of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices. The people of America may be warmly attached to the government of the Union, at times when the particular rulers of particular States, stimulated by the natural rivalship of power, and by the hopes of personal aggrandizement, and supported by a strong faction in each of those States, may be in a very opposite temper. This diversity of sentiment between a majority of the people, and the individuals who have the greatest credit in their councils, is exemplified in some of the States at the present moment, on the present question. The scheme of separate confederacies, which will always multiply the chances of ambition, will be a never failing bait to all such influential characters in the State administrations as are capable of preferring their own emolument and advancement to the public weal. With so effectual a weapon in their hands as the exclusive power of regulating elections for the national government, a combination of a few such men, in a few of the most considerable States, where the temptation will always be the strongest, might accomplish the destruction of the Union, by seizing the opportunity of some casual dissatisfaction among the people (and which perhaps they may themselves have excited), to discontinue the choice of members for the federal House of Representatives. It ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them. Its preservation, therefore ought in no case that can be avoided, to be committed to the guardianship of any but those whose situation will uniformly beget an immediate interest in the faithful and vigilant performance of the trust. PUBLIUS 1. 1st clause, 4th section, of the 1st article. FEDERALIST No. 60 The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members) From The Independent Journal. Saturday, February 23, 1788. HAMILTON To the People of the State of New York: WE HAVE seen, that an uncontrollable power over the elections to the federal government could not, without hazard, be committed to the State legislatures. Let us now see, what would be the danger on the other side; that is, from confiding the ultimate right of regulating its own elections to the Union itself. It is not pretended, that this right would ever be used for the exclusion of any State from its share in the representation. The interest of all would, in this respect at least, be the security of all. But it is alleged, that it might be employed in such a manner as to promote the election of some favorite class of men in exclusion of others, by confining the places of election to particular districts, and rendering it impracticable to the citizens at large to partake in the choice. Of all chimerical suppositions, this seems to be the most chimerical. On the one hand, no rational calculation of probabilities would lead us to imagine that the disposition which a conduct so violent and extraordinary would imply, could ever find its way into the national councils; and on the other, it may be concluded with certainty, that if so improper a spirit should ever gain admittance into them, it would display itself in a form altogether different and far more decisive. The improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the State governments. It is not difficult to conceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated, in respect to a particular class of citizens, by a victorious and overbearing majority; but that so fundamental a privilege, in a country so situated and enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible. In addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. The dissimilarity in the ingredients which will compose the national government, and still more in the manner in which they will be brought into action in its various branches, must form a powerful obstacle to a concert of views in any partial scheme of elections. There is sufficient diversity in the state of property, in the genius, manners, and habits of the people of the different parts of the Union, to occasion a material diversity of disposition in their representatives towards the different ranks and conditions in society. And though an intimate intercourse under the same government will promote a gradual assimilation in some of these respects, yet there are causes, as well physical as moral, which may, in a greater or less degree, permanently nourish different propensities and inclinations in this respect. But the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors. As to the Senate, it is impossible that any regulation of "time and manner," which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. The collective sense of the State legislatures can never be influenced by extraneous circumstances of that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. For what inducement could the Senate have to concur in a preference in which itself would not be included? Or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other? The composition of the one would in this case counteract that of the other. And we can never suppose that it would embrace the appointments to the Senate, unless we can at the same time suppose the voluntary co-operation of the State legislatures. If we make the latter supposition, it then becomes immaterial where the power in question is placed--whether in their hands or in those of the Union. But what is to be the object of this capricious partiality in the national councils? Is it to be exercised in a discrimination between the different departments of industry, or between the different kinds of property, or between the different degrees of property? Will it lean in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest? Or, to speak in the fashionable language of the adversaries to the Constitution, will it court the elevation of "the wealthy and the well-born," to the exclusion and debasement of all the rest of the society? If this partiality is to be exerted in favor of those who are concerned in any particular description of industry or property, I presume it will readily be admitted, that the competition for it will lie between landed men and merchants. And I scruple not to affirm, that it is infinitely less likely that either of them should gain an ascendant in the national councils, than that the one or the other of them should predominate in all the local councils. The inference will be, that a conduct tending to give an undue preference to either is much less to be dreaded from the former than from the latter. The several States are in various degrees addicted to agriculture and commerce. In most, if not all of them, agriculture is predominant. In a few of them, however, commerce nearly divides its empire, and in most of them has a considerable share of influence. In proportion as either prevails, it will be conveyed into the national representation; and for the very reason, that this will be an emanation from a greater variety of interests, and in much more various proportions, than are to be found in any single State, it will be much less apt to espouse either of them with a decided partiality, than the representation of any single State. In a country consisting chiefly of the cultivators of land, where the rules of an equal representation obtain, the landed interest must, upon the whole, preponderate in the government. As long as this interest prevails in most of the State legislatures, so long it must maintain a correspondent superiority in the national Senate, which will generally be a faithful copy of the majorities of those assemblies. It cannot therefore be presumed, that a sacrifice of the landed to the mercantile class will ever be a favorite object of this branch of the federal legislature. In applying thus particularly to the Senate a general observation suggested by the situation of the country, I am governed by the consideration, that the credulous votaries of State power cannot, upon their own principles, suspect, that the State legislatures would be warped from their duty by any external influence. But in reality the same situation must have the same effect, in the primitive composition at least of the federal House of Representatives: an improper bias towards the mercantile class is as little to be expected from this quarter as from the other. In order, perhaps, to give countenance to the objection at any rate, it may be asked, is there not danger of an opposite bias in the national government, which may dispose it to endeavor to secure a monopoly of the federal administration to the landed class? As there is little likelihood that the supposition of such a bias will have any terrors for those who would be immediately injured by it, a labored answer to this question will be dispensed with. It will be sufficient to remark, first, that for the reasons elsewhere assigned, it is less likely that any decided partiality should prevail in the councils of the Union than in those of any of its members. Secondly, that there would be no temptation to violate the Constitution in favor of the landed class, because that class would, in the natural course of things, enjoy as great a preponderancy as itself could desire. And thirdly, that men accustomed to investigate the sources of public prosperity upon a large scale, must be too well convinced of the utility of commerce, to be inclined to inflict upon it so deep a wound as would result from the entire exclusion of those who would best understand its interest from a share in the management of them. The importance of commerce, in the view of revenue alone, must effectually guard it against the enmity of a body which would be continually importuned in its favor, by the urgent calls of public necessity. I the rather consult brevity in discussing the probability of a preference founded upon a discrimination between the different kinds of industry and property, because, as far as I understand the meaning of the objectors, they contemplate a discrimination of another kind. They appear to have in view, as the objects of the preference with which they endeavor to alarm us, those whom they designate by the description of "the wealthy and the well-born." These, it seems, are to be exalted to an odious pre-eminence over the rest of their fellow-citizens. At one time, however, their elevation is to be a necessary consequence of the smallness of the representative body; at another time it is to be effected by depriving the people at large of the opportunity of exercising their right of suffrage in the choice of that body. But upon what principle is the discrimination of the places of election to be made, in order to answer the purpose of the meditated preference? Are "the wealthy and the well-born," as they are called, confined to particular spots in the several States? Have they, by some miraculous instinct or foresight, set apart in each of them a common place of residence? Are they only to be met with in the towns or cities? Or are they, on the contrary, scattered over the face of the country as avarice or chance may have happened to cast their own lot or that of their predecessors? If the latter is the case, (as every intelligent man knows it to be,(1)) is it not evident that the policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptionable on every other account? The truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature. Let it, however, be admitted, for argument sake, that the expedient suggested might be successful; and let it at the same time be equally taken for granted that all the scruples which a sense of duty or an apprehension of the danger of the experiment might inspire, were overcome in the breasts of the national rulers, still I imagine it will hardly be pretended that they could ever hope to carry such an enterprise into execution without the aid of a military force sufficient to subdue the resistance of the great body of the people. The improbability of the existence of a force equal to that object has been discussed and demonstrated in different parts of these papers; but that the futility of the objection under consideration may appear in the strongest light, it shall be conceded for a moment that such a force might exist, and the national government shall be supposed to be in the actual possession of it. What will be the conclusion? With a disposition to invade the essential rights of the community, and with the means of gratifying that disposition, is it presumable that the persons who were actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favorite class of men? Would they not be likely to prefer a conduct better adapted to their own immediate aggrandizement? Would they not rather boldly resolve to perpetuate themselves in office by one decisive act of usurpation, than to trust to precarious expedients which, in spite of all the precautions that might accompany them, might terminate in the dismission, disgrace, and ruin of their authors? Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective States to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people? PUBLIUS 1. Particularly in the Southern States and in this State. FEDERALIST No. 61 The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members) From the New York Packet. Tuesday, February 26, 1788. HAMILTON To the People of the State of New York: THE more candid opposers of the provision respecting elections, contained in the plan of the convention, when pressed in argument, will sometimes concede the propriety of that provision; with this qualification, however, that it ought to have been accompanied with a declaration, that all elections should be had in the counties where the electors resided. This, say they, was a necessary precaution against an abuse of the power. A declaration of this nature would certainly have been harmless; so far as it would have had the effect of quieting apprehensions, it might not have been undesirable. But it would, in fact, have afforded little or no additional security against the danger apprehended; and the want of it will never be considered, by an impartial and judicious examiner, as a serious, still less as an insuperable, objection to the plan. The different views taken of the subject in the two preceding papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination, at least, will be guiltless of the sacrifice. If those who are inclined to consult their jealousy only, would exercise it in a careful inspection of the several State constitutions, they would find little less room for disquietude and alarm, from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. A review of their situation, in this particular, would tend greatly to remove any ill impressions which may remain in regard to this matter. But as that view would lead into long and tedious details, I shall content myself with the single example of the State in which I write. The constitution of New York makes no other provision for LOCALITY of elections, than that the members of the Assembly shall be elected in the COUNTIES; those of the Senate, in the great districts into which the State is or may be divided: these at present are four in number, and comprehend each from two to six counties. It may readily be perceived that it would not be more difficult to the legislature of New York to defeat the suffrages of the citizens of New York, by confining elections to particular places, than for the legislature of the United States to defeat the suffrages of the citizens of the Union, by the like expedient. Suppose, for instance, the city of Albany was to be appointed the sole place of election for the county and district of which it is a part, would not the inhabitants of that city speedily become the only electors of the members both of the Senate and Assembly for that county and district? Can we imagine that the electors who reside in the remote subdivisions of the counties of Albany, Saratoga, Cambridge, etc., or in any part of the county of Montgomery, would take the trouble to come to the city of Albany, to give their votes for members of the Assembly or Senate, sooner than they would repair to the city of New York, to participate in the choice of the members of the federal House of Representatives? The alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws, which afford every facility to it, furnishes a ready answer to this question. And, abstracted from any experience on the subject, we can be at no loss to determine, that when the place of election is at an INCONVENIENT DISTANCE from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles. Hence it must appear, that objections to the particular modification of the federal power of regulating elections will, in substance, apply with equal force to the modification of the like power in the constitution of this State; and for this reason it will be impossible to acquit the one, and to condemn the other. A similar comparison would lead to the same conclusion in respect to the constitutions of most of the other States. If it should be said that defects in the State constitutions furnish no apology for those which are to be found in the plan proposed, I answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. To those who are disposed to consider, as innocent omissions in the State constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single State should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the United States? If they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. And in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single State should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen States, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests. Hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. But there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: I allude to the circumstance of uniformity in the time of elections for the federal House of Representatives. It is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. If each State may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. The times of election in the several States, as they are now established for local purposes, vary between extremes as wide as March and November. The consequence of this diversity would be that there could never happen a total dissolution or renovation of the body at one time. If an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. The mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. There is a contagion in example which few men have sufficient force of mind to resist. I am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations. Uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the Senate, and for conveniently assembling the legislature at a stated period in each year. It may be asked, Why, then, could not a time have been fixed in the Constitution? As the most zealous adversaries of the plan of the convention in this State are, in general, not less zealous admirers of the constitution of the State, the question may be retorted, and it may be asked, Why was not a time for the like purpose fixed in the constitution of this State? No better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. The same answer may be given to the question put on the other side. And it may be added that the supposed danger of a gradual change being merely speculative, it would have been hardly advisable upon that speculation to establish, as a fundamental point, what would deprive several States of the convenience of having the elections for their own governments and for the national government at the same epochs. PUBLIUS FEDERALIST No. 62 The Senate For the Independent Journal. Wednesday, February 27, 1788 MADISON To the People of the State of New York: HAVING examined the constitution of the House of Representatives, and answered such of the objections against it as seemed to merit notice, I enter next on the examination of the Senate. The heads into which this member of the government may be considered are: I. The qualification of senators; II. The appointment of them by the State legislatures; III. The equality of representation in the Senate; IV. The number of senators, and the term for which they are to be elected; V. The powers vested in the Senate. I. The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils. II. It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems. III. The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but "of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable." A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice. In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic. Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation. IV. The number of senators, and the duration of their appointment, come next to be considered. In order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution. First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government. Second. The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration. Third. Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate? A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first. Fourth. The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions. To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others. In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs. The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed? Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY. In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy. But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability. PUBLIUS FEDERALIST No. 63 The Senate Continued For the Independent Journal. Saturday, March 1, 1788 MADISON To the People of the State of New York: A FIFTH desideratum, illustrating the utility of a senate, is the want of a due sense of national character. Without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence. An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind? Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. It can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community. The half-yearly representatives of Rhode Island would probably have been little affected in their deliberations on the iniquitous measures of that State, by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister States; whilst it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now laboring. I add, as a SIXTH defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important. Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the SHARE of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a NUMEROUS body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents. The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects. Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only as they relate to the representatives of the people. To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next. It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them. It adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a senate. Sparta, Rome, and Carthage are, in fact, the only states to whom that character can be applied. In each of the two first there was a senate for life. The constitution of the senate in the last is less known. Circumstantial evidence makes it probable that it was not different in this particular from the two others. It is at least certain, that it had some quality or other which rendered it an anchor against popular fluctuations; and that a smaller council, drawn out of the senate, was appointed not only for life, but filled up vacancies itself. These examples, though as unfit for the imitation, as they are repugnant to the genius, of America, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty. I am not unaware of the circumstances which distinguish the American from other popular governments, as well ancient as modern; and which render extreme circumspection necessary, in reasoning from the one case to the other. But after allowing due weight to this consideration, it may still be maintained, that there are many points of similitude which render these examples not unworthy of our attention. Many of the defects, as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people, and to the people themselves. There are others peculiar to the former, which require the control of such an institution. The people can never wilfully betray their own interests; but they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act. The difference most relied on, between the American and other republics, consists in the principle of representation; which is the pivot on which the former move, and which is supposed to have been unknown to the latter, or at least to the ancient part of them. The use which has been made of this difference, in reasonings contained in former papers, will have shown that I am disposed neither to deny its existence nor to undervalue its importance. I feel the less restraint, therefore, in observing, that the position concerning the ignorance of the ancient governments on the subject of representation, is by no means precisely true in the latitude commonly given to it. Without entering into a disquisition which here would be misplaced, I will refer to a few known facts, in support of what I advance. In the most pure democracies of Greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and REPRESENTING the people in their EXECUTIVE capacity. Prior to the reform of Solon, Athens was governed by nine Archons, annually ELECTED BY THE PEOPLE AT LARGE. The degree of power delegated to them seems to be left in great obscurity. Subsequent to that period, we find an assembly, first of four, and afterwards of six hundred members, annually ELECTED BY THE PEOPLE; and PARTIALLY representing them in their LEGISLATIVE capacity, since they were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people. The senate of Carthage, also, whatever might be its power, or the duration of its appointment, appears to have been ELECTIVE by the suffrages of the people. Similar instances might be traced in most, if not all the popular governments of antiquity. Lastly, in Sparta we meet with the Ephori, and in Rome with the Tribunes; two bodies, small indeed in numbers, but annually ELECTED BY THE WHOLE BODY OF THE PEOPLE, and considered as the REPRESENTATIVES of the people, almost in their PLENIPOTENTIARY capacity. The Cosmi of Crete were also annually ELECTED BY THE PEOPLE, and have been considered by some authors as an institution analogous to those of Sparta and Rome, with this difference only, that in the election of that representative body the right of suffrage was communicated to a part only of the people. From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The true distinction between these and the American governments, lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share in the LATTER, and not in the TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the administration of the FORMER. The distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the United States. But to insure to this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory. For it cannot be believed, that any form of representative government could have succeeded within the narrow limits occupied by the democracies of Greece. In answer to all these arguments, suggested by reason, illustrated by examples, and enforced by our own experience, the jealous adversary of the Constitution will probably content himself with repeating, that a senate appointed not immediately by the people, and for the term of six years, must gradually acquire a dangerous pre-eminence in the government, and finally transform it into a tyrannical aristocracy. To this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the United States. But a more particular reply may be given. Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions? If reason condemns the suspicion, the same sentence is pronounced by experience. The constitution of Maryland furnishes the most apposite example. The Senate of that State is elected, as the federal Senate will be, indirectly by the people, and for a term less by one year only than the federal Senate. It is distinguished, also, by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and, at the same time, is not under the control of any such rotation as is provided for the federal Senate. There are some other lesser distinctions, which would expose the former to colorable objections, that do not lie against the latter. If the federal Senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the Senate of Maryland, but no such symptoms have appeared. On the contrary, the jealousies at first entertained by men of the same description with those who view with terror the correspondent part of the federal Constitution, have been gradually extinguished by the progress of the experiment; and the Maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any State in the Union. But if anything could silence the jealousies on this subject, it ought to be the British example. The Senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The House of Representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. Here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the United States. Unfortunately, however, for the anti-federal argument, the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch. As far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed. In Sparta, the Ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it. The fact is the more remarkable, as unanimity was required in every act of the Tribunes, even after their number was augmented to ten. It proves the irresistible force possessed by that branch of a free government, which has the people on its side. To these examples might be added that of Carthage, whose senate, according to the testimony of Polybius, instead of drawing all power into its vortex, had, at the commencement of the second Punic War, lost almost the whole of its original portion. Besides the conclusive evidence resulting from this assemblage of facts, that the federal Senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body, we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the House of Representatives, with the people on their side, will at all times be able to bring back the Constitution to its primitive form and principles. Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves. PUBLIUS FEDERALIST No. 64 The Powers of the Senate From The Independent Journal. Wednesday, March 5, 1788. JAY To the People of the State of New York: IT IS a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. Unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed Constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it. The second section gives power to the President, "BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR." The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors. As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. The Constitution manifests very particular attention to this object. By excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle. If the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. The inference which naturally results from these considerations is this, that the President and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several States or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. With such men the power of making treaties may be safely lodged. Although the absolute necessity of system, in the conduct of any business, is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind. They who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information, and often much time, are necessary to concert and to execute. It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them. The duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country. Nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information will be preserved. There are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued; and that both our treaties and our laws should correspond with and be made to promote it. It is of much consequence that this correspondence and conformity be carefully maintained; and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the Senate necessary both to treaties and to laws. It seldom happens in the negotiation of treaties, of whatever nature, but that perfect SECRECY and immediate DESPATCH are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest. They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other. But to this plan, as to most others that have ever appeared, objections are contrived and urged. Some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected. Others, though content that treaties should be made in the mode proposed, are averse to their being the SUPREME laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government. However useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. From this cause, probably, proceed the fears and apprehensions of some, that the President and Senate may make treaties without an equal eye to the interests of all the States. Others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties? As all the States are equally represented in the Senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance. In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be in the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter. As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations. With respect to their responsibility, it is difficult to conceive how it could be increased. Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments. PUBLIUS FEDERALIST No. 65 The Powers of the Senate Continued From the New York Packet. Friday, March 7, 1788. HAMILTON To the People of the State of New York: THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate. A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny. The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it. What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded? Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS? Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons. These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt? Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded. Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men. But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious. PUBLIUS FEDERALIST No. 66 Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered. From The Independent Journal. Saturday, March 8, 1788. HAMILTON To the People of the State of New York: A REVIEW of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter. The FIRST of these objections is, that the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and well-established maxim which requires a separation between the different departments of power. The true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. This partial intermixture is even, in some cases, not only proper but necessary to the mutual defense of the several members of the government against each other. An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire. It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this State; while that constitution makes the Senate, together with the chancellor and judges of the Supreme Court, not only a court of impeachments, but the highest judicatory in the State, in all causes, civil and criminal. The proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New York, in the last resort, may, with truth, be said to reside in its Senate. If the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of New York?(1) A SECOND objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. To an objection so little precise in itself, it is not easy to find a very precise answer. Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence? Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience? If we take this course, it will lead to a more intelligible, if not to a more certain result. The disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if I mistake not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our inquiries. The expediency of the junction of the Senate with the Executive, in the power of appointing to offices, will, I trust, be placed in a light not less satisfactory, in the disquisitions under the same head. And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings. But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most POPULAR branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the Government. But independent of this most active and operative principle, to secure the equilibrium of the national House of Representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the Senate. The exclusive privilege of originating money bills will belong to the House of Representatives. The same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? The same house will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. The constant possibility of the thing must be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the Union, for the first office in it. It would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate. A THIRD objection to the Senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. The principle of this objection would condemn a practice, which is to be seen in all the State governments, if not in all the governments with which we are acquainted: I mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. With equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. But that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. Though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the Senate, who will merely sanction the choice of the Executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers. If any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the Senate in the business of appointments. It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE--they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy. A FOURTH objection to the Senate in the capacity of a court of impeachments, is derived from its union with the Executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. After having combined with the Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty? This objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation. The security essentially intended by the Constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several States, is designed to be the pledge for the fidelity of the national councils in this particular. The convention might with propriety have meditated the punishment of the Executive, for a deviation from the instructions of the Senate, or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption: but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the Senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law--a principle which, I believe, has never been admitted into any government. How, in fact, could a majority in the House of Representatives impeach themselves? Not better, it is evident, than two thirds of the Senate might try themselves. And yet what reason is there, that a majority of the House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the Senate, sacrificing the same interests in an injurious treaty with a foreign power? The truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good. So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace. PUBLIUS 1. In that of New Jersey, also, the final judiciary authority is in a branch of the legislature. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the legislature is the court for the trial of impeachments. FEDERALIST No. 67 The Executive Department From the New York Packet. Tuesday, March 11, 1788. HAMILTON To the People of the State of New York: THE constitution of the executive department of the proposed government, claims next our attention. There is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this; and there is, perhaps, none which has been inveighed against with less candor or criticised with less judgment. Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation. Calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as the embryo, but as the full-grown progeny, of that detested parent. To establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York, have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio. Attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated. In the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation, or to treat with seriousness, the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject. They so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. It is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a king of Great Britain and a magistrate of the character marked out for that of the President of the United States. It is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition. In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is EXPRESSLY allotted to the Executives of the individual States. I mean the power of filling casual vacancies in the Senate. This bold experiment upon the discernment of his countrymen has been hazarded by a writer who (whatever may be his real merit) has had no inconsiderable share in the applauses of his party(1); and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded. Let him now be confronted with the evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing. The second clause of the second section of the second article empowers the President of the United States "to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW." Immediately after this clause follows another in these words: "The President shall have power to fill up all VACANCIES that may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE AT THE END OF THEIR NEXT SESSION." It is from this last provision that the pretended power of the President to fill vacancies in the Senate has been deduced. A slight attention to the connection of the clauses, and to the obvious meaning of the terms, will satisfy us that the deduction is not even colorable. The first of these two clauses, it is clear, only provides a mode for appointing such officers, "whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW"; of course it cannot extend to the appointments of senators, whose appointments are OTHERWISE PROVIDED FOR in the Constitution(2), and who are ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment by law. This position will hardly be contested. The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons: First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session." Second. If this clause is to be considered as supplementary to the one which precedes, the VACANCIES of which it speaks must be construed to relate to the "officers" described in the preceding one; and this, we have seen, excludes from its description the members of the Senate. Third. The time within which the power is to operate, "during the recess of the Senate," and the duration of the appointments, "to the end of the next session" of that body, conspire to elucidate the sense of the provision, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the State legislatures, who are to make the permanent appointments, and not to the recess of the national Senate, who are to have no concern in those appointments; and would have extended the duration in office of the temporary senators to the next session of the legislature of the State, in whose representation the vacancies had happened, instead of making it to expire at the end of the ensuing session of the national Senate. The circumstances of the body authorized to make the permanent appointments would, of course, have governed the modification of a power which related to the temporary appointments; and as the national Senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the President. But last, the first and second clauses of the third section of the first article, not only obviate all possibility of doubt, but destroy the pretext of misconception. The former provides, that "the Senate of the United States shall be composed of two Senators from each State, chosen BY THE LEGISLATURE THEREOF for six years"; and the latter directs, that, "if vacancies in that body should happen by resignation or otherwise, DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the Executive THEREOF may make temporary appointments until the NEXT MEETING OF THE LEGISLATURE, which shall then fill such vacancies." Here is an express power given, in clear and unambiguous terms, to the State Executives, to fill casual vacancies in the Senate, by temporary appointments; which not only invalidates the supposition, that the clause before considered could have been intended to confer that power upon the President of the United States, but proves that this supposition, destitute as it is even of the merit of plausibility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atrocious to be palliated by hypocrisy. I have taken the pains to select this instance of misrepresentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the Constitution submitted to the consideration of the people. Nor have I scrupled, in so flagrant a case, to allow myself a severity of animadversion little congenial with the general spirit of these papers. I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of America. PUBLIUS 1. See CATO, No. V. 2. Article I, section 3, clause 1. FEDERALIST No. 68 The Mode of Electing the President From The Independent Journal. Wednesday, March 12, 1788. HAMILTON To the People of the State of New York: THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded.(1) I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.(E1) It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture. It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty. Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice. All these advantages will happily combine in the plan devised by the convention; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President. But as a majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office. The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the Constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says: "For forms of government let fools contest--That which is best administered is best,"--yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration. The Vice-President is to be chosen in the same manner with the President; with this difference, that the Senate is to do, in respect to the former, what is to be done by the House of Representatives, in respect to the latter. The appointment of an extraordinary person, as Vice-President, has been objected to as superfluous, if not mischievous. It has been alleged, that it would have been preferable to have authorized the Senate to elect out of their own body an officer answering that description. But two considerations seem to justify the ideas of the convention in this respect. One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the President should have only a casting vote. And to take the senator of any State from his seat as senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant for a contingent vote. The other consideration is, that as the Vice-President may occasionally become a substitute for the President, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other. It is remarkable that in this, as in most other instances, the objection which is made would lie against the constitution of this State. We have a Lieutenant-Governor, chosen by the people at large, who presides in the Senate, and is the constitutional substitute for the Governor, in casualties similar to those which would authorize the Vice-President to exercise the authorities and discharge the duties of the President. PUBLIUS 1. Vide federal farmer. E1. Some editions substitute "desired" for "wished for". FEDERALIST No. 69 The Real Character of the Executive From the New York Packet. Friday, March 14, 1788. HAMILTON To the People of the State of New York: I PROCEED now to trace the real characters of the proposed Executive, as they are marked out in the plan of the convention. This will serve to place in a strong light the unfairness of the representations which have been made in regard to it. The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York. That magistrate is to be elected for four years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between him and a king of Great Britain, who is an hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between him and a governor of New York, who is elected for three years, and is re-eligible without limitation or intermission. If we consider how much less time would be requisite for establishing a dangerous influence in a single State, than for establishing a like influence throughout the United States, we must conclude that a duration of four years for the Chief Magistrate of the Union is a degree of permanency far less to be dreaded in that office, than a duration of three years for a corresponding office in a single State. The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware. The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. The king of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown's having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign; and tallies exactly with the revisionary authority of the council of revision of this State, of which the governor is a constituent part. In this respect the power of the President would exceed that of the governor of New York, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied. The President is to be the "commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States." In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these:--First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Second. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies--all which, by the Constitution under consideration, would appertain to the legislature.(1) The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States. Third. The power of the President, in respect to pardons, would extend to all cases, except those of impeachment. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited "to levying war upon the United States, and adhering to their enemies, giving them aid and comfort"; and that by the laws of New York it is confined within similar bounds. Fourth. The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment. The British monarch may prorogue or even dissolve the Parliament. The governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes. The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion. Every jurist(2) of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plentitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty; and this may have possibly given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from the sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative. The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor. The President is to nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment is with us lodged in a council, composed of the governor and four members of the Senate, chosen by the Assembly. The governor claims, and has frequently exercised, the right of nomination, and is entitled to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nomination.(3) If we compare the publicity which must necessarily attend the mode of appointment by the President and an entire branch of the national legislature, with the privacy in the mode of appointment by the governor of New York, closeted in a secret apartment with at most four, and frequently with only two persons; and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consists, than the considerable number of which the national Senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union. Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group. The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism. PUBLIUS 1. A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted that the king of Great Britain owes his prerogative as commander-in-chief to an annual mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, "contrary to all reason and precedent," as Blackstone vol. i., page 262, expresses it, by the Long Parliament of Charles I. but by the statute the 13th of Charles II., chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his Majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, EVER WAS AND IS the undoubted right of his Majesty and his royal predecessors, kings and queens of England, and that both or either house of Parliament cannot nor ought to pretend to the same. 2. Vide Blackstone's Commentaries, Vol I., p. 257. 3. Candor, however, demands an acknowledgment that I do not think the claim of the governor to a right of nomination well founded. Yet it is always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. And independent of this claim, when we take into view the other considerations, and pursue them through all their consequences, we shall be inclined to draw much the same conclusion. FEDERALIST No. 70 The Executive Department Further Considered From The Independent Journal. Saturday, March 15, 1788. HAMILTON To the People of the State of New York: THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman history, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome. There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention? The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. The ingredients which constitute safety in the republican sense are, first, a due dependence on the people, secondly, a due responsibility. Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men.(1) Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction. The experience of other nations will afford little instruction on this head. As far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the Executive. We have seen that the Achaeans, on an experiment of two Praetors, were induced to abolish one. The Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls, and between the military Tribunes, who were at times substituted for the Consuls. But it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. That the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the Consuls, of making a division of the government between them. The patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the Consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. In addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot--one of them remaining at Rome to govern the city and its environs, the other taking the command in the more distant provinces. This expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic. But quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good sense, we shall discover much greater cause to reject than to approve the idea of plurality in the Executive, under any modification whatever. Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. Upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious. In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. When a resolution too is once taken, the opposition must be at an end. That resolution is a law, and resistance to it punishable. But no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. Here, they are pure and unmixed. There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the Executive which are the most necessary ingredients in its composition--vigor and expedition, and this without any counterbalancing good. In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. It must be confessed that these observations apply with principal weight to the first case supposed--that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive. An artful cabal in that council would be able to distract and to enervate the whole system of administration. If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. (But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds--to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.)(E1) (But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds--to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.)(E1) "I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point." These and similar pretexts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium, of a strict scrutiny into the secret springs of the transaction? Should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties? In the single instance in which the governor of this State is coupled with a council--that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. Scandalous appointments to important offices have been made. Some cases, indeed, have been so flagrant that ALL PARTIES have agreed in the impropriety of the thing. When inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. In tenderness to individuals, I forbear to descend to particulars. It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, second, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it. In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred. Nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. Without this, there would be no responsibility whatever in the executive department an idea inadmissible in a free government. But even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. He is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion. But in a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the British Constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. In the monarchy of Great Britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. In the American republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself. The idea of a council to the Executive, which has so generally obtained in the State constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man. If the maxim should be admitted to be applicable to the case, I should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. But I do not think the rule at all applicable to the executive power. I clearly concur in opinion, in this particular, with a writer whom the celebrated Junius pronounces to be "deep, solid, and ingenious," that "the executive power is more easily confined when it is ONE";(2) that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the Executive is rather dangerous than friendly to liberty. A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is unattainable. Numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. The united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. When power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. The Decemvirs of Rome, whose name denotes their number,(3) were more to be dreaded in their usurpation than any ONE of them would have been. No person would think of proposing an Executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. The extreme of these numbers, is not too great for an easy combination; and from such a combination America would have more to fear, than from the ambition of any single individual. A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults. I forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution. PUBLIUS 1. New York has no council except for the single purpose of appointing to offices; New Jersey has a council whom the governor may consult. But I think, from the terms of the constitution, their resolutions do not bind him. 2. De Lolme. 3. Ten. E1. Two versions of these paragraphs appear in different editions. FEDERALIST No. 71 The Duration in Office of the Executive From the New York Packet. Tuesday, March 18, 1788. HAMILTON To the People of the State of New York: DURATION in office has been mentioned as the second requisite to the energy of the Executive authority. This has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be evident, that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. It is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. The inference from it is, that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he MUST lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. If the case should only be, that he MIGHT lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the characteristics of the station. There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly INTEND the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always REASON RIGHT about the MEANS of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision. The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution. It may perhaps be asked, how the shortness of the duration in office can affect the independence of the Executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. One answer to this inquiry may be drawn from the principle already remarked that is, from the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. Another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment. It may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate. It cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. He might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. As, on the one hand, a duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. If a British House of Commons, from the most feeble beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation(1) attempted by them, what would be to be feared from an elective magistrate of four years' duration, with the confined authorities of a President of the United States? What, but that he might be unequal to the task which the Constitution assigns him? I shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments. PUBLIUS 1. This was the case with respect to Mr. Fox's India bill, which was carried in the House of Commons, and rejected in the House of Lords, to the entire satisfaction, as it is said, of the people. FEDERALIST No. 72 The Same Subject Continued, and Re-Eligibility of the Executive Considered. From The Independent Journal. Wednesday, March 19, 1788. HAMILTON To the People of the State of New York: THE administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual, and perhaps its most precise signification. it is limited to executive details, and falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war--these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. The persons, therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. This view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. These considerations, and the influence of personal confidences and attachments, would be likely to induce every new President to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government. With a positive duration of considerable extent, I connect the circumstance of re-eligibility. The first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. The last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration. Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates--I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after. This exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary. One ill effect of the exclusion would be a diminution of the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of obtaining, by meriting, a continuance of them. This position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interests coincide with their duty. Even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. The most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good. Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same man, probably, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. His avarice might be a guard upon his avarice. Add to this that the same man might be vain or ambitious, as well as avaricious. And if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. But with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition. An ambitious man, too, when he found himself seated on the summit of his country's honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on his part could save him from the unwelcome reverse; such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty. Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess? A third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. That experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. What more desirable or more essential than this quality in the governors of nations? Where more desirable or more essential than in the first magistrate of a nation? Can it be wise to put this desirable and essential quality under the ban of the Constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? This, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellowcitizens, after they have by a course of service fitted themselves for doing it with a greater degree of utility. A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. How unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances! Without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration. A fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. By necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures. It is not generally to be expected, that men will vary and measures remain uniform. The contrary is the usual course of things. And we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy. These are some of the disadvantages which would flow from the principle of exclusion. They apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other. What are the advantages promised to counterbalance these disadvantages? They are represented to be: 1st, greater independence in the magistrate; 2d, greater security to the people. Unless the exclusion be perpetual, there will be no pretense to infer the first advantage. But even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? May he have no connections, no friends, for whom he may sacrifice it? May he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement. As to the second supposed advantage, there is still greater reason to entertain doubts concerning it. If the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and pre-eminence had acquired the force of habit. And if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege. There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive. PUBLIUS FEDERALIST No. 73 The Provision For The Support of the Executive, and the Veto Power From the New York Packet. Friday, March 21, 1788. HAMILTON To the People of the State of New York: THE third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its support. It is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. These expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man's support is a power over his will. If it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the Executive by the terrors or allurements of the pecuniary arrangements of the legislative body. It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed Constitution. It is there provided that "The President of the United States shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them." It is impossible to imagine any provision which would have been more eligible than this. The legislature, on the appointment of a President, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act. He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution. The last of the requisites to energy, which have been enumerated, are competent powers. Let us proceed to consider those which are proposed to be vested in the President of the United States. The first thing that offers itself to our observation, is the qualified negative of the President upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body. The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self-defense. But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body. The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body. But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflexion, would condemn. The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them. It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones. Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament. He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. Nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very considerable period has elapsed since the negative of the crown has been exercised. If a magistrate so powerful and so well fortified as a British monarch, would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a government wholly and purely republican? It is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. An argument, indeed, against its expediency, has been drawn from this very source. It has been represented, on this account, as a power odious in appearance, useless in practice. But it will not follow, that because it might be rarely exercised, it would never be exercised. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility. In the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men who, under any circumstances, will have the courage to do their duty at every hazard. But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual. It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. A power of this nature in the Executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared. This qualified negative, as has been elsewhere remarked, is in this State vested in a council, consisting of the governor, with the chancellor and judges of the Supreme Court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility has become so apparent, that persons who, in compiling the Constitution, were violent opposers of it, have from experience become its declared admirers.(1) I have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this State, in favor of that of Massachusetts. Two strong reasons may be imagined for this preference. One is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the Executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive. PUBLIUS 1. Mr. Abraham Yates, a warm opponent of the plan of the convention is of this number. FEDERALIST No. 74 The Command of the Military and Naval Forces, and the Pardoning Power of the Executive. From the New York Packet. Tuesday, March 25, 1788. HAMILTON To the People of the State of New York: THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States." The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority. "The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers." This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office. He is also to be authorized to grant "reprieves and pardons for offenses against the United States, except in cases of impeachment." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men. The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt. PUBLIUS FEDERALIST No. 75 The Treaty-Making Power of the Executive For the Independent Journal. Wednesday, March 26, 1788 HAMILTON To the People of the State of New York: THE President is to have power, "by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur." Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic of the intermixture of powers; some contending that the President ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the Senate. Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of all the members of the Senate, to two thirds of the members present. As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated. With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States. To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations. It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. While the Union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the Executive. Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances which must concur in the appointment of a President, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity. The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project. The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members present. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary. To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a proportion which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that, under the existing Confederation, two members may, and usually do, represent a State; whence it happens that Congress, who now are solely invested with all the powers of the Union, rarely consist of a greater number of persons than would compose the intended Senate. If we add to this, that as the members vote by States, and that where there is only a single member present from a State, his vote is lost, it will justify a supposition that the active voices in the Senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When, in addition to these considerations, we take into view the co-operation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new Constitution, than they now enjoy under the Confederation. And when we proceed still one step further, and look forward to the probable augmentation of the Senate, by the erection of new States, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust. PUBLIUS FEDERALIST No. 76 The Appointing Power of the Executive From the New York Packet. Tuesday, April 1, 1788. HAMILTON To the People of the State of New York: THE President is "to nominate, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies which may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." It has been observed in a former paper, that "the true test of a good government is its aptitude and tendency to produce a good administration." If the justness of this observation be admitted, the mode of appointing the officers of the United States contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union; and it will not need proof, that on this point must essentially depend the character of its administration. It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a select assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. When, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men. Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice. But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration. It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments. The venalty of the British House of Commons has been long a topic of accusation against that body, in the country to which they belong as well as in this; and it cannot be doubted that the charge is, to a considerable extent, well founded. But it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance. The Constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that "No senator or representative shall during the time for which he was elected, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office." PUBLIUS FEDERALIST No. 77 The Appointing Power Continued and Other Powers of the Executive Considered. From The Independent Journal. Wednesday, April 2, 1788. HAMILTON To the People of the State of New York: IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government. To this union of the Senate with the President, in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence over the Senate, and in others that it would have an opposite tendency--a strong proof that neither suggestion is true. To state the first in its proper form, is to refute it. It amounts to this: the President would have an improper influence over the Senate, because the Senate would have the power of restraining him. This is an absurdity in terms. It cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control. Let us take a view of the converse of the proposition: "the Senate would influence the Executive." As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, I answer, that the instances in which the President could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the Senate. The POWER which can originate the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant restraining him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the (good, without the ill.)(E1) (good of that of appointment, and would in a great measure avoid its evils.)(E1) Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace. The reverse of all this characterizes the manner of appointment in this State. The council of appointment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know, is that the governor claims the right of nomination; that two out of the inconsiderable number of four men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. Whether a governor of this State avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture. Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. If, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the Executive. And yet such a council has been warmly contended for as an essential amendment in the proposed Constitution. I could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; I mean that of uniting the House of Representatives in the power of making them. I shall, however, do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. The example of most of the States in their local constitutions encourages us to reprobate the idea. The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States. Except some cavils about the power of convening either house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. It required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the Senate at least, we can readily discover a good reason for it. AS this body has a concurrent power with the Executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the House of Representatives. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer. We have now completed a survey of the structure and powers of the executive department, which, I have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. The remaining inquiry is: Does it also combine the requisites to safety, in a republican sense--a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people? PUBLIUS E1. These two alternate endings of this sentence appear in different editions. FEDERALIST No. 78 The Judiciary Department From McLEAN'S Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: WE PROCEED now to an examination of the judiciary department of the proposed government. In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined. The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other. First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition. Second. As to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility. According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power(1); that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."(2) And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference. But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,(3) in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws. There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject. Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution. PUBLIUS 1. The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing."--Spirit of Laws. Vol. I, page 186. 2. Idem, page 181. 3. Vide Protest of the Minority of the Convention of Pennsylvania, Martin's Speech, etc. FEDERALIST No. 79 The Judiciary Continued From MCLEAN's Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, a power over a man's subsistence amounts to a power over his will. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that permanent(1) salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges, That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service. This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges. The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges. The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification. The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench. PUBLIUS 1. Vide Constitution of Massachusetts, Chapter 2, Section 1, Article 13. FEDERALIST No. 80 The Powers of the Judiciary From McLEAN's Edition, New York. Wednesday, May 28, 1788. HAMILTON To the People of the State of New York: TO JUDGE with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects. It seems scarcely to admit of controversy, that the judiciary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased. The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States. As to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed. Still less need be said in regard to the third point. Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum. The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals. The power of determining causes between two States, between one State and the citizens of another, and between the citizens of different States, is perhaps not less essential to the peace of the Union than that which has been just examined. History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body. A method of terminating territorial disputes between the States, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. But there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control. It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded. The fifth point will demand little animadversion. The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction. The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same State. Claims to land under grants of different States, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting States could be expected to be unbiased. The laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the State to which they belonged. And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government. Having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. It is to comprehend "all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects." This constitutes the entire mass of the judicial authority of the Union. Let us now review it in detail. It is, then, to extend: First. To all cases in law and equity, arising under the Constitution and the laws of the United States. This corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the United States. It has been asked, what is meant by "cases arising under the Constitution," in contradiction from those "arising under the laws of the United States"? The difference has been already explained. All the restrictions upon the authority of the State legislatures furnish examples of it. They are not, for instance, to emit paper money; but the interdiction results from the Constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary signification of the terms. This may serve as a sample of the whole. It has also been asked, what need of the word "equity". What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those States where the formal and technical distinction between LAW and EQUITY is not maintained, as in this State, where it is exemplified by every day's practice. The judiciary authority of the Union is to extend: Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace. Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts. Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes. Fifth. To controversies between two or more States; between a State and citizens of another State; between citizens of different States. These belong to the fourth of those classes, and partake, in some measure, of the nature of the last. Sixth. To cases between the citizens of the same State, claiming lands under grants of different States. These fall within the last class, and are the only instances in which the proposed Constitution directly contemplates the cognizance of disputes between the citizens of the same State. Seventh. To cases between a State and the citizens thereof, and foreign States, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature. From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. PUBLIUS FEDERALIST No. 81 The Judiciary Continued, and the Distribution of the Judicial Authority. From McLEAN's Edition, New York. Wednesday, May 28, 1788. HAMILTON To the People of the State of New York: LET US now return to the partition of the judiciary authority between different courts, and their relations to each other. "The judicial power of the United States is" (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish."(1) That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body. The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a PART of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity. These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended. It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject. It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. Having now examined, and, I trust, removed the objections to the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts,(2) and the relations which will subsist between these and the former. The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to institute or authorize, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits. But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much "to constitute tribunals," as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. I should consider every thing calculated to give, in practice, an unrestrained course to appeals, as a source of public and private inconvenience. I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed Constitution. These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only "in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party." Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable. Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, "with such exceptions and under such regulations as the Congress shall make." The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word "appellate," therefore, will not be understood in the same sense in New England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. If, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court. But it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that the latter has jurisdiction of the fact as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.(3) This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, "appellate jurisdiction, both as to law and fact," do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts. The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States all causes are tried in this mode(4); and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security. This view of the matter, at any rate, puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source. PUBLIUS 1. Article 3, Sec. 1. 2. This power has been absurdly represented as intended to abolish all the county courts in the several States, which are commonly called inferior courts. But the expressions of the Constitution are, to constitute "tribunals INFERIOR TO THE SUPREME COURT"; and the evident design of the provision is to enable the institution of local courts, subordinate to the Supreme, either in States or larger districts. It is ridiculous to imagine that county courts were in contemplation. 3. This word is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law. 4. I hold that the States will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper. FEDERALIST No. 82 The Judiciary Continued. From McLEAN's Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: THE erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 'Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE. Such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. The principal of these respect the situation of the State courts in regard to those causes which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention. The principles established in a former paper(1) teach us that the States will retain all pre-existing authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And under this impression, I shall lay it down as a rule, that the State courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. The only thing in the proposed Constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage: "THE JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish." This might either be construed to signify, that the supreme and subordinate courts of the Union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one Supreme Court, and as many subordinate courts as Congress should think proper to appoint; or in other words, that the United States should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the State tribunals; and as the first would amount to an alienation of State power by implication, the last appears to me the most natural and the most defensible construction. But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to, the Constitution to be established; for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. I mean not therefore to contend that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited. Here another question occurs: What relation would subsist between the national and State courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. The evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions giving appellate jurisdiction to the Supreme Court, to appeals from the subordinate federal courts, instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation. But could an appeal be made to lie from the State courts to the subordinate federal judicatories? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance the affirmative. The plan of the convention, in the first place, authorizes the national legislature "to constitute tribunals inferior to the Supreme Court."(2) It declares, in the next place, that "the JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish"; and it then proceeds to enumerate the cases to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. The only outlines described for them, are that they shall be "inferior to the Supreme Court," and that they shall not exceed the specified limits of the federal judiciary. Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined. It would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the Supreme Court. The State tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the State courts to district courts of the Union. PUBLIUS 1. No. 31. 2. Sec. 8, Art. 1. FEDERALIST No. 83 The Judiciary Continued in Relation to Trial by Jury From MCLEAN's Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: THE objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is that relative to the want of a constitutional provision for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to civil causes, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to criminal causes. To argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the existence of matter, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning. With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only not provided for, is entirely abolished. Every man of discernment must at once perceive the wide difference between silence and abolition. But as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken. The maxims on which they rely are of this nature: "A specification of particulars is an exclusion of generals"; or, "The expression of one thing is the exclusion of another." Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter. The rules of legal interpretation are rules of common sense, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others. A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge the power of the legislature to exercise that mode if it should be thought proper. The pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation. From these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. Even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction. Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. This will be best done by examples. The plan of the convention declares that the power of Congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. In like manner the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. These examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. But that there may be no misapprehensions upon this subject, I shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them. Let us suppose that by the laws of this State a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. In such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. But let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? The position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature. From these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed Constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the State constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. The foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the State courts only, and in the manner which the State constitutions and laws prescribe. All land causes, except where claims under the grants of different States come into question, and all other controversies between the citizens of the same State, unless where they depend upon positive violations of the articles of union, by acts of the State legislatures, will belong exclusively to the jurisdiction of the State tribunals. Add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government. The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention. It has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. This observation deserves to be canvassed. It is evident that it can have no influence upon the legislature, in regard to the amount of taxes to be laid, to the objects upon which they are to be imposed, or to the rule by which they are to be apportioned. If it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws. As to the mode of collection in this State, under our own Constitution, the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. The dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public nor promote the convenience of the citizens. It would often occasion an accumulation of costs, more burdensome than the original sum of the tax to be levied. And as to the conduct of the officers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. Wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case. The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. It is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes. Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil cases to liberty, I admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. There is, however, in all cases, great difficulty in this; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention. The great difference between the limits of the jury trial in different States is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. In this State, our judicial establishments resemble, more nearly than in any other, those of Great Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England), a court of admiralty and a court of chancery. In the courts of common law only, the trial by jury prevails, and this with some exceptions. In all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury.(1) In New Jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. In that State the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New Jersey than in New York. In Pennsylvania, this is perhaps still more the case, for there is no court of chancery in that State, and its common-law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. Delaware has in these respects imitated Pennsylvania. Maryland approaches more nearly to New York, as does also Virginia, except that the latter has a plurality of chancellors. North Carolina bears most affinity to Pennsylvania; South Carolina to Virginia. I believe, however, that in some of those States which have distinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common-law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. In Connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. Their common-law courts have admiralty and, to a certain extent, equity jurisdiction. In cases of importance, their General Assembly is the only court of chancery. In Connecticut, therefore, the trial by jury extends in practice further than in any other State yet mentioned. Rhode Island is, I believe, in this particular, pretty much in the situation of Connecticut. Massachusetts and New Hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. In the four Eastern States, the trial by jury not only stands upon a broader foundation than in the other States, but it is attended with a peculiarity unknown, in its full extent, to any of them. There is an appeal of course from one jury to another, till there have been two verdicts out of three on one side. From this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several States; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the States; and secondly, that more or at least as much might have been hazarded by taking the system of any one State for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation. The propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose--"Trial by jury shall be as heretofore"--and this I maintain would be senseless and nugatory. The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial by jury, with various limitations, is known in each State individually, yet in the United States, as such, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term heretofore could relate. It would therefore be destitute of a precise meaning, and inoperative from its uncertainty. As, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if I apprehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in the federal courts should be tried by jury, if, in the State where the courts sat, that mode of trial would obtain in a similar case in the State courts; that is to say, admiralty causes should be tried in Connecticut by a jury, in New York without one. The capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every wellregulated judgment towards it. Whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties. But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations--that is, in most cases where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable. It will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of Europe, and that, pursuant to such treaties, they are determinable in Great Britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, undergoes a re-examination. This alone demonstrates the impolicy of inserting a fundamental provision in the Constitution which would make the State systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable. My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions(2) to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars. It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence: which is the model that has been followed in several of the States. But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode. These appeared to be conclusive reasons against incorporating the systems of all the States, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the Pennsylvania minority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect. It is in this form: "In civil actions between citizens of different States, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it." This, at best, is a proposition confined to one description of causes; and the inference is fair, either that the Massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. If the last, it affords a strong corroboration of the extreme difficulty of the thing. But this is not all: if we advert to the observations already made respecting the courts that subsist in the several States of the Union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. In this State, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other States the boundaries are less precise. In some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one State a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another State, a cause exactly similar to the other, must be decided without the intervention of a jury, because the State judicatories varied as to common-law jurisdiction. It is obvious, therefore, that the Massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different States. To devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. It would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the States in the Union, or that would perfectly quadrate with the several State institutions. It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. If the plan of taking one State as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the States would have been taken as the model. It has been shown that many of them would be improper ones. And I leave it to conjecture, whether, under all circumstances, it is most likely that New York, or some other State, would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other States, at the partiality which had been shown to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment. To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this I believe, no precedent is to be found in any member of the Union; and the considerations which have been stated in discussing the proposition of the minority of Pennsylvania, must satisfy every sober mind that the establishment of the trial by jury in all cases would have been an unpardonable error in the plan. In short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government. I cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. They have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished(3) by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a Constitution for the United States. The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. For my part, I acknowledge myself to be convinced that even in this State it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these States as in Great Britain, afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature. This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this State since the Revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut or Great Britain. It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career. The truth is that the general GENIUS of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be, with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government. It certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a Constitution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular State in the Union, can boast of no constitutional provision for either. PUBLIUS 1. It has been erroneously insinuated with regard to the court of chancery, that this court generally tries disputed facts by a jury. The truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question. 2. It is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to SPECIAL circumstances, which form exceptions to general rules. 3. Vide No. 81, in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the Supreme Court, is examined and refuted. FEDERALIST No. 84 Certain General and Miscellaneous Objections to the Constitution Considered and Answered. From McLEAN's Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper. The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured. To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions. Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7--"Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Section 9, of the same article, clause 2--"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Clause 3--"No bill of attainder or ex-post-facto law shall be passed." Clause 7--"No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." Article 3, section 2, clause 3--"The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." Section 3, of the same article--"Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And clause 3, of the same section--"The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone,(1) in reference to the latter, are well worthy of recital: "To bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the BULWARK of the British Constitution."(2) Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people. To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself. It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired. I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved"? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.(3) And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights. There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "It is improper (say the objectors) to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body." This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government. It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives. It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union. Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due to the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "States neither lose any of their rights, nor are discharged from any of their obligations, by a change in the form of their civil government."(4) The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan. The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government--a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people. Whence is the dreaded augmentation of expense to spring? One source indicated, is the multiplication of offices under the new government. Let us examine this a little. It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former. Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence. Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress. But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system. The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union. PUBLIUS 1. Vide Blackstone's Commentaries, Vol. 1, p. 136. 2. Idem, Vol. 4, p. 438. 3. To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained. 4. Vide Rutherford's Institutes, Vol. 2, Book II, Chapter X, Sections XIV and XV. Vide also Grotius, Book II, Chapter IX, Sections VIII and IX. FEDERALIST No. 85 Concluding Remarks From MCLEAN's Edition, New York. Wednesday, May 28, 1788 HAMILTON To the People of the State of New York: ACCORDING to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two points: "the analogy of the proposed government to your own State constitution," and "the additional security which its adoption will afford to republican government, to liberty, and to property." But these heads have been so fully anticipated and exhausted in the progress of the work, that it would now scarcely be possible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid. It is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this State holds, not less with regard to many of the supposed defects, than to the real excellences of the former. Among the pretended defects are the re-eligibility of the Executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. These and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this State, as on the one proposed for the Union; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. Nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable. The additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the Union will impose on local factions and insurrections, and on the ambition of powerful individuals in single States, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the Confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the States in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the State governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals. Thus have I, fellow-citizens, executed the task I had assigned to myself; with what success, your conduct must determine. I trust at least you will admit that I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted. I have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the Constitution. The charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. It is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which I did not intend; it is certain that I have frequently felt a struggle between sensibility and moderation; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much. Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty from which nothing can give him a dispensation. 'T is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. Let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of America has already given its sanction to the plan which he is to approve or reject. I shall not dissemble that I feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that I am unable to discern any real force in those by which it has been opposed. I am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced. Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. "Why," say they, "should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?" This may be plausible enough, but it is only plausible. In the first place I remark, that the extent of these concessions has been greatly exaggerated. They have been stated as amounting to an admission that the plan is radically defective, and that without material alterations the rights and the interests of the community cannot be safely confided to it. This, as far as I have understood the meaning of those who make the concessions, is an entire perversion of their sense. No advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one; is the best that the present views and circumstances of the country will permit; and is such an one as promises every species of security which a reasonable people can desire. I answer in the next place, that I should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials? The reasons assigned in an excellent little pamphlet lately published in this city,(1) are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. I will not repeat the arguments there used, as I presume the production itself has had an extensive circulation. It is certainly well worthy the perusal of every friend to his country. There is, however, one point of light in which the subject of amendments still remains to be considered, and in which it has not yet been exhibited to public view. I cannot resolve to conclude without first taking a survey of it in this aspect. It appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the Constitution. The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State. To its complete establishment throughout the Union, it will therefore require the concurrence of thirteen States. If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine States. Here, then, the chances are as thirteen to nine(2) in favor of subsequent amendment, rather than of the original adoption of an entire system. This is not all. Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. The degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties. But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point--no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution. In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing THIRTEEN STATES at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. It is this that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged "on the application of the legislatures of two thirds of the States (which at present amount to nine), to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof." The words of this article are peremptory. The Congress "shall call a convention." Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority. If the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object. The zeal for attempts to amend, prior to the establishment of the Constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: "To balance a large state or society (says he), whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; EXPERIENCE must guide their labor; TIME must bring it to perfection, and the FEELING of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments."(3) These judicious reflections contain a lesson of moderation to all the sincere lovers of the Union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the States from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from TIME and EXPERIENCE. It may be in me a defect of political fortitude, but I acknowledge that I cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. A NATION, without a NATIONAL GOVERNMENT, is, in my view, an awful spectacle. The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a PRODIGY, to the completion of which I look forward with trembling anxiety. I can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen States, and after having passed over so considerable a part of the ground, to recommence the course. I dread the more the consequences of new attempts, because I know that POWERFUL INDIVIDUALS, in this and in other States, are enemies to a general national government in every possible shape. PUBLIUS 1. Entitled "An Address to the People of the State of New York." 2. It may rather be said TEN, for though two thirds may set on foot the measure, three fourths must ratify. 3. Hume's Essays, Vol. I, p. 128: "The Rise of Arts and Sciences." 
18	----	This is the Project Gutenberg 1.5 release of The Federalist Papers FEDERALIST. No. 1 General Introduction For the Independent Journal. HAMILTON To the People of the State of New York: AFTER an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind. This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth. Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government. It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable--the honest errors of minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution. And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. You will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new Constitution. Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth. I propose, in a series of papers, to discuss the following interesting particulars: THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT ITS ANALOGY TO YOUR OWN STATE CONSTITUTION and lastly, THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY. In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention. It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.1 This doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address. PUBLIUS. 1 The same idea, tracing the arguments to their consequences, is held out in several of the late publications against the new Constitution. FEDERALIST No. 2 Concerning Dangers from Foreign Force and Influence For the Independent Journal. JAY To the People of the State of New York: WHEN the people of America reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it, will be evident. Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government. It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. But politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the States into distinct confederacies or sovereignties. However extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it formerly, are at present of the number. Whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy. It has often given me pleasure to observe that independent America was not composed of detached and distant territories, but that one connected, fertile, widespreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities. With equal pleasure I have as often taken notice that Providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence. This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties. Similar sentiments have hitherto prevailed among all orders and denominations of men among us. To all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states. A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and wellbalanced government for a free people. It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer. This intelligent people perceived and regretted these defects. Still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being pursuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice, convened the late convention at Philadelphia, to take that important subject under consideration. This convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils. Admit, for so is the fact, that this plan is only RECOMMENDED, not imposed, yet let it be remembered that it is neither recommended to BLIND approbation, nor to BLIND reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive. But this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. Experience on a former occasion teaches us not to be too sanguine in such hopes. It is not yet forgotten that well-grounded apprehensions of imminent danger induced the people of America to form the memorable Congress of 1774. That body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures. Not only many of the officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to pursuade the people to reject the advice of that patriotic Congress. Many, indeed, were deceived and deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so. They considered that the Congress was composed of many wise and experienced men. That, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information. That, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. That they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable. These and similar considerations then induced the people to rely greatly on the judgment and integrity of the Congress; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. But if the people at large had reason to confide in the men of that Congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that Congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience. It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of America depended on its Union. To preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union? Or why is it suggested that three or four confederacies would be better than one? I am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union rests on great and weighty reasons, which I shall endeavor to develop and explain in some ensuing papers. They who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the Union in the utmost jeopardy. That certainly would be the case, and I sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet: "FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS." PUBLIUS. FEDERALIST No. 3 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. JAY To the People of the State of New York: IT IS not a new observation that the people of any country (if, like the Americans, intelligent and wellinformed) seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests. That consideration naturally tends to create great respect for the high opinion which the people of America have so long and uniformly entertained of the importance of their continuing firmly united under one federal government, vested with sufficient powers for all general and national purposes. The more attentively I consider and investigate the reasons which appear to have given birth to this opinion, the more I become convinced that they are cogent and conclusive. Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their SAFETY seems to be the first. The SAFETY of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively. At present I mean only to consider it as it respects security for the preservation of peace and tranquillity, as well as against dangers from FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE KIND arising from domestic causes. As the former of these comes first in order, it is proper it should be the first discussed. Let us therefore proceed to examine whether the people are not right in their opinion that a cordial Union, under an efficient national government, affords them the best security that can be devised against HOSTILITIES from abroad. The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether REAL or PRETENDED, which PROVOKE or INVITE them. If this remark be just, it becomes useful to inquire whether so many JUST causes of war are likely to be given by UNITED AMERICA as by DISUNITED America; for if it should turn out that United America will probably give the fewest, then it will follow that in this respect the Union tends most to preserve the people in a state of peace with other nations. The JUST causes of war, for the most part, arise either from violation of treaties or from direct violence. America has already formed treaties with no less than six foreign nations, and all of them, except Prussia, are maritime, and therefore able to annoy and injure us. She has also extensive commerce with Portugal, Spain, and Britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to. It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies. Because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,--especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States. Hence, it will result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual States, and consequently more satisfactory with respect to other nations, as well as more SAFE with respect to us. Because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,--whereas, adjudications on the same points and questions, in thirteen States, or in three or four confederacies, will not always accord or be consistent; and that, as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. The wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended. Because the prospect of present loss or advantage may often tempt the governing party in one or two States to swerve from good faith and justice; but those temptations, not reaching the other States, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. The case of the treaty of peace with Britain adds great weight to this reasoning. Because, even if the governing party in a State should be disposed to resist such temptations, yet as such temptations may, and commonly do, result from circumstances peculiar to the State, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. But the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others. So far, therefore, as either designed or accidental violations of treaties and the laws of nations afford JUST causes of war, they are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the SAFETY of the people. As to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter. Because such violences are more frequently caused by the passions and interests of a part than of the whole; of one or two States than of the Union. Not a single Indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants. The neighborhood of Spanish and British territories, bordering on some States and not on others, naturally confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested. But not only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably. They will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending State. The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them. Besides, it is well known that acknowledgments, explanations, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a State or confederacy of little consideration or power. In the year 1685, the state of Genoa having offended Louis XIV., endeavored to appease him. He demanded that they should send their Doge, or chief magistrate, accompanied by four of their senators, to FRANCE, to ask his pardon and receive his terms. They were obliged to submit to it for the sake of peace. Would he on any occasion either have demanded or have received the like humiliation from Spain, or Britain, or any other POWERFUL nation? PUBLIUS. FEDERALIST No. 4 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. JAY To the People of the State of New York: MY LAST paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by JUST causes of war given to other nations; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the State governments or the proposed little confederacies. But the safety of the people of America against dangers from FOREIGN force depends not only on their forbearing to give JUST causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to INVITE hostility or insult; for it need not be observed that there are PRETENDED as well as just causes of war. It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. But, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances. With France and with Britain we are rivals in the fisheries, and can supply their markets cheaper than they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish. With them and with most other European nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it. In the trade to China and India, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them. The extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns. Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from the Saint Lawrence on the other; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic. From these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure. The people of America are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. Wisely, therefore, do they consider union and a good national government as necessary to put and keep them in SUCH A SITUATION as, instead of INVITING war, will tend to repress and discourage it. That situation consists in the best possible state of defense, and necessarily depends on the government, the arms, and the resources of the country. As the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever. One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies. What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales? Suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of Great Britain would? We have heard much of the fleets of Britain, and the time may come, if we are wise, when the fleets of America may engage attention. But if one national government, had not so regulated the navigation of Britain as to make it a nursery for seamen--if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. Let England have its navigation and fleet--let Scotland have its navigation and fleet--let Wales have its navigation and fleet--let Ireland have its navigation and fleet--let those four of the constituent parts of the British empire be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance. Apply these facts to our own case. Leave America divided into thirteen or, if you please, into three or four independent governments--what armies could they raise and pay--what fleets could they ever hope to have? If one was attacked, would the others fly to its succor, and spend their blood and money in its defense? Would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished? Although such conduct would not be wise, it would, nevertheless, be natural. The history of the states of Greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again. But admit that they might be willing to help the invaded State or confederacy. How, and when, and in what proportion shall aids of men and money be afforded? Who shall command the allied armies, and from which of them shall he receive his orders? Who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? Various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people. But whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act toward us accordingly. If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government (each State doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to Britain, another to France, and a third to Spain, and perhaps played off against each other by the three, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves. PUBLIUS. FEDERALIST No. 5 The Same Subject Continued (Concerning Dangers From Foreign Force and Influence) For the Independent Journal. JAY To the People of the State of New York: QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the importance of the UNION then forming between England and Scotland, which merit our attention. I shall present the public with one or two extracts from it: "An entire and perfect union will be the solid foundation of lasting peace: It will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. It must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be ENABLED TO RESIST ALL ITS ENEMIES." "We most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only EFFECTUAL way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, USE THEIR UTMOST ENDEAVORS TO PREVENT OR DELAY THIS UNION." It was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves. This subject is copious and cannot easily be exhausted. The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them. Although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. Notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other. Should the people of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being "joined in affection" and free from all apprehension of different "interests," envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuits. Hence, like most other BORDERING nations, they would always be either involved in disputes and war, or live in the constant apprehension of them. The most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? Independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. For it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years. Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. Distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied. The North is generally the region of strength, and many local circumstances render it probable that the most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the NORTHERN HIVE would excite the same ideas and sensations in the more southern parts of America which it formerly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors. They who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., FORMIDABLE ONLY TO EACH OTHER. From these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies. When did the independent states, into which Britain and Spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? The proposed confederacies will be DISTINCT NATIONS. Each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. Different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. Hence it might and probably would happen that the foreign nation with whom the SOUTHERN confederacy might be at war would be the one with whom the NORTHERN confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith. Nay, it is far more probable that in America, as in Europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. Considering our distance from Europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. And here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. How many conquests did the Romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect. Let candid men judge, then, whether the division of America into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations. PUBLIUS. FEDERALIST No. 6 Concerning Dangers from Dissensions Between the States For the Independent Journal. HAMILTON To the People of the State of New York: THE three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind--those which will in all probability flow from dissensions between the States themselves, and from domestic factions and convulsions. These have been already in some instances slightly anticipated; but they deserve a more particular and more full investigation. A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. To look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages. The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the love of power or the desire of pre-eminence and dominion--the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification. The celebrated Pericles, in compliance with the resentment of a prostitute,1 at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the SAMNIANS. The same man, stimulated by private pique against the MEGARENSIANS,2 another nation of Greece, or to avoid a prosecution with which he was threatened as an accomplice of a supposed theft of the statuary Phidias,3 or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity,4 or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the PELOPONNESIAN war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the Athenian commonwealth. The ambitious cardinal, who was prime minister to Henry VIII., permitting his vanity to aspire to the triple crown,5 entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the Emperor Charles V. To secure the favor and interest of this enterprising and powerful monarch, he precipitated England into a war with France, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of Europe in general. For if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the Emperor Charles V., of whose intrigues Wolsey was at once the instrument and the dupe. The influence which the bigotry of one female,6 the petulance of another,7 and the cabals of a third,8 had in the contemporary policy, ferments, and pacifications, of a considerable part of Europe, are topics that have been too often descanted upon not to be generally known. To multiply examples of the agency of personal considerations in the production of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. Those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand in need of such lights to form their opinion either of the reality or extent of that agency. Perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. If Shays had not been a DESPERATE DEBTOR, it is much to be doubted whether Massachusetts would have been plunged into a civil war. But notwithstanding the concurring testimony of experience, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered and alienated from each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord. Is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit? If this be their true interest, have they in fact pursued it? Has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice? Have republics in practice been less addicted to war than monarchies? Are not the former administered by MEN as well as the latter? Are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? Is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? Has commerce hitherto done anything more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory? Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries. Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the commercial kind. Yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times. Sparta was little better than a wellregulated camp; and Rome was never sated of carnage and conquest. Carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. Hannibal had carried her arms into the heart of Italy and to the gates of Rome, before Scipio, in turn, gave him an overthrow in the territories of Carthage, and made a conquest of the commonwealth. Venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other Italian states, Pope Julius II. found means to accomplish that formidable league,9 which gave a deadly blow to the power and pride of this haughty republic. The provinces of Holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of Europe. They had furious contests with England for the dominion of the sea, and were among the most persevering and most implacable of the opponents of Louis XIV. In the government of Britain the representatives of the people compose one branch of the national legislature. Commerce has been for ages the predominant pursuit of that country. Few nations, nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been engaged have, in numerous instances, proceeded from the people. There have been, if I may so express it, almost as many popular as royal wars. The cries of the nation and the importunities of their representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the State. In that memorable struggle for superiority between the rival houses of AUSTRIA and BOURBON, which so long kept Europe in a flame, it is well known that the antipathies of the English against the French, seconding the ambition, or rather the avarice, of a favorite leader,10 protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court. The wars of these two last-mentioned nations have in a great measure grown out of commercial considerations,--the desire of supplanting and the fear of being supplanted, either in particular branches of traffic or in the general advantages of trade and navigation. From this summary of what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present confederacy, in a state of separation? Have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape? Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue? Let the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the State of North Carolina, the late menacing disturbances in Pennsylvania, and the actual insurrections and rebellions in Massachusetts, declare--! So far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the States, in the event of disunion, that it has from long observation of the progress of society become a sort of axiom in politics, that vicinity or nearness of situation, constitutes nations natural enemies. An intelligent writer expresses himself on this subject to this effect: "NEIGHBORING NATIONS (says he) are naturally enemies of each other unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors."11 This passage, at the same time, points out the EVIL and suggests the REMEDY. PUBLIUS. 1 Aspasia, vide "Plutarch's Life of Pericles." 2 Ibid. 3 Ibid. 4 ] Ibid. Phidias was supposed to have stolen some public gold, with the connivance of Pericles, for the embellishment of the statue of Minerva. 5 P Worn by the popes. 6 Madame de Maintenon. 7 Duchess of Marlborough. 8 Madame de Pompadour. 9 The League of Cambray, comprehending the Emperor, the King of France, the King of Aragon, and most of the Italian princes and states. 10 The Duke of Marlborough. 11 Vide "Principes des Negociations" par l'Abbe de Mably. FEDERALIST. No. 7 The Same Subject Continued (Concerning Dangers from Dissensions Between the States) For the Independent Journal. HAMILTON To the People of the State of New York: IT IS sometimes asked, with an air of seeming triumph, what inducements could the States have, if disunited, to make war upon each other? It would be a full answer to this question to say--precisely the same inducements which have, at different times, deluged in blood all the nations in the world. But, unfortunately for us, the question admits of a more particular answer. There are causes of differences within our immediate contemplation, of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed. Territorial disputes have at all times been found one of the most fertile sources of hostility among nations. Perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin. This cause would exist among us in full force. We have a vast tract of unsettled territory within the boundaries of the United States. There still are discordant and undecided claims between several of them, and the dissolution of the Union would lay a foundation for similar claims between them all. It is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were ungranted at the time of the Revolution, and which usually went under the name of crown lands. The States within the limits of whose colonial governments they were comprised have claimed them as their property, the others have contended that the rights of the crown in this article devolved upon the Union; especially as to all that part of the Western territory which, either by actual possession, or through the submission of the Indian proprietors, was subjected to the jurisdiction of the king of Great Britain, till it was relinquished in the treaty of peace. This, it has been said, was at all events an acquisition to the Confederacy by compact with a foreign power. It has been the prudent policy of Congress to appease this controversy, by prevailing upon the States to make cessions to the United States for the benefit of the whole. This has been so far accomplished as, under a continuation of the Union, to afford a decided prospect of an amicable termination of the dispute. A dismemberment of the Confederacy, however, would revive this dispute, and would create others on the same subject. At present, a large part of the vacant Western territory is, by cession at least, if not by any anterior right, the common property of the Union. If that were at an end, the States which made the cession, on a principle of federal compromise, would be apt when the motive of the grant had ceased, to reclaim the lands as a reversion. The other States would no doubt insist on a proportion, by right of representation. Their argument would be, that a grant, once made, could not be revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the Confederacy, remained undiminished. If, contrary to probability, it should be admitted by all the States, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. Different principles would be set up by different States for this purpose; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment. In the wide field of Western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. To reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. The circumstances of the dispute between Connecticut and Pennsylvania, respecting the land at Wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. The articles of confederation obliged the parties to submit the matter to the decision of a federal court. The submission was made, and the court decided in favor of Pennsylvania. But Connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. Nothing here said is intended to convey the slightest censure on the conduct of that State. She no doubt sincerely believed herself to have been injured by the decision; and States, like individuals, acquiesce with great reluctance in determinations to their disadvantage. Those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this State and the district of Vermont, can vouch the opposition we experienced, as well from States not interested as from those which were interested in the claim; and can attest the danger to which the peace of the Confederacy might have been exposed, had this State attempted to assert its rights by force. Two motives preponderated in that opposition: one, a jealousy entertained of our future power; and the other, the interest of certain individuals of influence in the neighboring States, who had obtained grants of lands under the actual government of that district. Even the States which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this State, than to establish their own pretensions. These were New Hampshire, Massachusetts, and Connecticut. New Jersey and Rhode Island, upon all occasions, discovered a warm zeal for the independence of Vermont; and Maryland, till alarmed by the appearance of a connection between Canada and that State, entered deeply into the same views. These being small States, saw with an unfriendly eye the perspective of our growing greatness. In a review of these transactions we may trace some of the causes which would be likely to embroil the States with each other, if it should be their unpropitious destiny to become disunited. The competitions of commerce would be another fruitful source of contention. The States less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself. This would occasion distinctions, preferences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of enterprise, which characterizes the commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular States might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars. The opportunities which some States would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary States. The relative situation of New York, Connecticut, and New Jersey would afford an example of this kind. New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other States in the capacity of consumers of what we import. New York would neither be willing nor able to forego this advantage. Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit? Should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? Should we be able to preserve it against the incumbent weight of Connecticut on the one side, and the co-operating pressure of New Jersey on the other? These are questions that temerity alone will answer in the affirmative. The public debt of the Union would be a further cause of collision between the separate States or confederacies. The apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity. How would it be possible to agree upon a rule of apportionment satisfactory to all? There is scarcely any that can be proposed which is entirely free from real objections. These, as usual, would be exaggerated by the adverse interest of the parties. There are even dissimilar views among the States as to the general principle of discharging the public debt. Some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. These would be inclined to magnify the difficulties of a distribution. Others of them, a numerous body of whose citizens are creditors to the public beyond proportion of the State in the total amount of the national debt, would be strenuous for some equitable and effective provision. The procrastinations of the former would excite the resentments of the latter. The settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. The citizens of the States interested would clamour; foreign powers would urge for the satisfaction of their just demands, and the peace of the States would be hazarded to the double contingency of external invasion and internal contention. Suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. Still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some States than upon others. Those which were sufferers by it would naturally seek for a mitigation of the burden. The others would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. Their refusal would be too plausible a pretext to the complaining States to withhold their contributions, not to be embraced with avidity; and the non-compliance of these States with their engagements would be a ground of bitter discussion and altercation. If even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the States would result from a diversity of other causes--the real deficiency of resources; the mismanagement of their finances; accidental disorders in the management of the government; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants. Delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money. Laws in violation of private contracts, as they amount to aggressions on the rights of those States whose citizens are injured by them, may be considered as another probable source of hostility. We are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual States hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. We have observed the disposition to retaliation excited in Connecticut in consequence of the enormities perpetrated by the Legislature of Rhode Island; and we reasonably infer that, in similar cases, under other circumstances, a war, not of PARCHMENT, but of the sword, would chastise such atrocious breaches of moral obligation and social justice. The probability of incompatible alliances between the different States or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. Divide et impera1 must be the motto of every nation that either hates or fears us.2 PUBLIUS. 1 Divide and command. 2 In order that the whole subject of these papers may as soon as possible be laid before the public, it is proposed to publish them four times a week--on Tuesday in the New York Packet and on Thursday in the Daily Advertiser. FEDERALIST No. 8 The Consequences of Hostilities Between the States From the New York Packet. Tuesday, November 20, 1787. HAMILTON To the People of the State of New York: ASSUMING it therefore as an established truth that the several States, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general Confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation. War between the States, in the first period of their separate existence, would be accompanied with much greater distresses than it commonly is in those countries where regular military establishments have long obtained. The disciplined armies always kept on foot on the continent of Europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. The art of fortification has contributed to the same ends. The nations of Europe are encircled with chains of fortified places, which mutually obstruct invasion. Campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy's country. Similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. Formerly, an invading army would penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received; but now a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more considerable. The history of war, in that quarter of the globe, is no longer a history of nations subdued and empires overturned, but of towns taken and retaken; of battles that decide nothing; of retreats more beneficial than victories; of much effort and little acquisition. In this country the scene would be altogether reversed. The jealousy of military establishments would postpone them as long as possible. The want of fortifications, leaving the frontiers of one state open to another, would facilitate inroads. The populous States would, with little difficulty, overrun their less populous neighbors. Conquests would be as easy to be made as difficult to be retained. War, therefore, would be desultory and predatory. PLUNDER and devastation ever march in the train of irregulars. The calamities of individuals would make the principal figure in the events which would characterize our military exploits. This picture is not too highly wrought; though, I confess, it would not long remain a just one. Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it.1 Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority. The expedients which have been mentioned would soon give the States or confederacies that made use of them a superiority over their neighbors. Small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. Neither the pride nor the safety of the more important States or confederacies would permit them long to submit to this mortifying and adventitious superiority. They would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. Thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the Old World. This, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard. These are not vague inferences drawn from supposed or speculative defects in a Constitution, the whole power of which is lodged in the hands of a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs. It may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of Greece? Different answers, equally satisfactory, may be given to this question. The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics. The means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility. There is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. The rulers of the former can have a good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. These armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. The laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. The smallness of the army renders the natural strength of the community an over-match for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people. In a country in the predicament last described, the contrary of all this happens. The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. No motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. There has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. This peculiar felicity of situation has, in a great degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, Britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of Europe, she, like them, would in all probability be, at this day, a victim to the absolute power of a single man. 'T is possible, though not easy, that the people of that island may be enslaved from other causes; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom. If we are wise enough to preserve the Union we may for ages enjoy an advantage similar to that of an insulated situation. Europe is at a great distance from us. Her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. Extensive military establishments cannot, in this position, be necessary to our security. But if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe --our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other. This is an idea not superficial or futile, but solid and weighty. It deserves the most serious and mature consideration of every prudent and honest man of whatever party. If such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a Constitution, the rejection of which would in all probability put a final period to the Union. The airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formidable. PUBLIUS. 1 This objection will be fully examined in its proper place, and it will be shown that the only natural precaution which could have been taken on this subject has been taken; and a much better one than is to be found in any constitution that has been heretofore framed in America, most of which contain no guard at all on this subject. FEDERALIST No. 9 The Union as a Safeguard Against Domestic Faction and Insurrection For the Independent Journal. HAMILTON To the People of the State of New York: A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated. From the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. They have decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. Happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. And, I trust, America will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors. But it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. If it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. To this catalogue of circumstances that tend to the amelioration of popular systems of civil government, I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution; I mean the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy. The latter is that which immediately concerns the object under consideration. It will, however, be of use to examine the principle in its application to a single State, which shall be attended to in another place. The utility of a Confederacy, as well to suppress faction and to guard the internal tranquillity of States, as to increase their external force and security, is in reality not a new idea. It has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. The opponents of the plan proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the necessity of a contracted territory for a republican government. But they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. If we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. Some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger States as a desirable thing. Such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of America. Referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the SIZE of the more considerable MEMBERS of the Union, but would not militate against their being all comprehended in one confederate government. And this is the true question, in the discussion of which we are at present interested. So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a CONFEDERATE REPUBLIC as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism. "It is very probable," (says he1) "that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a CONFEDERATE REPUBLIC. "This form of government is a convention by which several smaller STATES agree to become members of a larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body. "A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences. "If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation. "Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty. "As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies." I have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the Union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. They have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the Union to repress domestic faction and insurrection. A distinction, more subtle than accurate, has been raised between a CONFEDERACY and a CONSOLIDATION of the States. The essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. These positions are, in the main, arbitrary; they are supported neither by principle nor precedent. It has indeed happened, that governments of this kind have generally operated in the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. And it will be clearly shown in the course of this investigation that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government. The definition of a CONFEDERATE REPUBLIC seems simply to be "an assemblage of societies," or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government. In the Lycian confederacy, which consisted of twenty-three CITIES or republics, the largest were entitled to THREE votes in the COMMON COUNCIL, those of the middle class to TWO, and the smallest to ONE. The COMMON COUNCIL had the appointment of all the judges and magistrates of the respective CITIES. This was certainly the most, delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. Yet Montesquieu, speaking of this association, says: "Were I to give a model of an excellent Confederate Republic, it would be that of Lycia." Thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory. PUBLIUS. 1 "Spirit of Lawa," vol. i., book ix., chap. i. FEDERALIST No. 10 The Same Subject Continued (The Union as a Safeguard Against Domestic Faction and Insurrection) From the New York Packet. Friday, November 23, 1787. MADISON To the People of the State of New York: AMONG the numerous advantages promised by a wellconstructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties. The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets. It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful. From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union. The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations: In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice. In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters. It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures. The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage. The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State. In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists. PUBLIUS. FEDERALIST No. 11 The Utility of the Union in Respect to Commercial Relations and a Navy For the Independent Journal. HAMILTON To the People of the State of New York: THE importance of the Union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. This applies as well to our intercourse with foreign countries as with each other. There are appearances to authorize a supposition that the adventurous spirit, which distinguishes the commercial character of America, has already excited uneasy sensations in several of the maritime powers of Europe. They seem to be apprehensive of our too great interference in that carrying trade, which is the support of their navigation and the foundation of their naval strength. Those of them which have colonies in America look forward to what this country is capable of becoming, with painful solicitude. They foresee the dangers that may threaten their American dominions from the neighborhood of States, which have all the dispositions, and would possess all the means, requisite to the creation of a powerful marine. Impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving us, as far as possible, of an ACTIVE COMMERCE in our own bottoms. This would answer the threefold purpose of preventing our interference in their navigation, of monopolizing the profits of our trade, and of clipping the wings by which we might soar to a dangerous greatness. Did not prudence forbid the detail, it would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers. If we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. By prohibitory regulations, extending, at the same time, throughout the States, we may oblige foreign countries to bid against each other, for the privileges of our markets. This assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people--increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so--to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from America, in the ships of another country. Suppose, for instance, we had a government in America, capable of excluding Great Britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? Would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? When these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. It has been said that prohibitions on our part would produce no change in the system of Britain, because she could prosecute her trade with us through the medium of the Dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. But would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? Would not the principal part of its profits be intercepted by the Dutch, as a compensation for their agency and risk? Would not the mere circumstance of freight occasion a considerable deduction? Would not so circuitous an intercourse facilitate the competitions of other nations, by enhancing the price of British commodities in our markets, and by transferring to other hands the management of this interesting branch of the British commerce? A mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to Britain from such a state of things, conspiring with the pre-possessions of a great part of the nation in favor of the American trade, and with the importunities of the West India islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands elsewhere, from which our trade would derive the most substantial benefits. Such a point gained from the British government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade. A further resource for influencing the conduct of European nations toward us, in this respect, would arise from the establishment of a federal navy. There can be no doubt that the continuance of the Union under an efficient government would put it in our power, at a period not very distant, to create a navy which, if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties. This would be more peculiarly the case in relation to operations in the West Indies. A few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign, on the event of which interests of the greatest magnitude were suspended. Our position is, in this respect, a most commanding one. And if to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the West Indies, it will readily be perceived that a situation so favorable would enable us to bargain with great advantage for commercial privileges. A price would be set not only upon our friendship, but upon our neutrality. By a steady adherence to the Union we may hope, erelong, to become the arbiter of Europe in America, and to be able to incline the balance of European competitions in this part of the world as our interest may dictate. But in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. In a state so insignificant our commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. The rights of neutrality will only be respected when they are defended by an adequate power. A nation, despicable by its weakness, forfeits even the privilege of being neutral. Under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. This situation would even take away the motive to such combinations, by inducing an impracticability of success. An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. We might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature. But in a state of disunion, these combinations might exist and might operate with success. It would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a PASSIVE COMMERCE. We should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. That unequaled spirit of enterprise, which signalizes the genius of the American merchants and navigators, and which is in itself an inexhaustible mine of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world. There are rights of great moment to the trade of America which are rights of the Union--I allude to the fisheries, to the navigation of the Western lakes, and to that of the Mississippi. The dissolution of the Confederacy would give room for delicate questions concerning the future existence of these rights; which the interest of more powerful partners would hardly fail to solve to our disadvantage. The disposition of Spain with regard to the Mississippi needs no comment. France and Britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. They, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. What more natural than that they should be disposed to exclude from the lists such dangerous competitors? This branch of trade ought not to be considered as a partial benefit. All the navigating States may, in different degrees, advantageously participate in it, and under circumstances of a greater extension of mercantile capital, would not be unlikely to do it. As a nursery of seamen, it now is, or when time shall have more nearly assimilated the principles of navigation in the several States, will become, a universal resource. To the establishment of a navy, it must be indispensable. To this great national object, a NAVY, union will contribute in various ways. Every institution will grow and flourish in proportion to the quantity and extent of the means concentred towards its formation and support. A navy of the United States, as it would embrace the resources of all, is an object far less remote than a navy of any single State or partial confederacy, which would only embrace the resources of a single part. It happens, indeed, that different portions of confederated America possess each some peculiar advantage for this essential establishment. The more southern States furnish in greater abundance certain kinds of naval stores--tar, pitch, and turpentine. Their wood for the construction of ships is also of a more solid and lasting texture. The difference in the duration of the ships of which the navy might be composed, if chiefly constructed of Southern wood, would be of signal importance, either in the view of naval strength or of national economy. Some of the Southern and of the Middle States yield a greater plenty of iron, and of better quality. Seamen must chiefly be drawn from the Northern hive. The necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of commerce to the prosperity of a navy. An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. It can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctations of markets. Particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. The speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the United States would bid fair to be much more favorable than that of the thirteen States without union or with partial unions. It may perhaps be replied to this, that whether the States are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. A unity of commercial, as well as political, interests, can only result from a unity of government. There are other points of view in which this subject might be placed, of a striking and animating kind. But they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. I shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of American affairs. The world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. Africa, Asia, and America, have successively felt her domination. The superiority she has long maintained has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as created for her benefit. Men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in America--that even dogs cease to bark after having breathed awhile in our atmosphere.1 Facts have too long supported these arrogant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will enable us to do it. Disunion will will add another victim to his triumphs. Let Americans disdain to be the instruments of European greatness! Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world! PUBLIUS. "Recherches philosophiques sur les Americains." FEDERALIST No. 12 The Utility of the Union In Respect to Revenue From the New York Packet. Tuesday, November 27, 1787. HAMILTON To the People of the State of New York: THE effects of Union upon the commercial prosperity of the States have been sufficiently delineated. Its tendency to promote the interests of revenue will be the subject of our present inquiry. The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. By multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,--all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils. The often-agitated question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rivalship that once subsisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. It has been found in various countries that, in proportion as commerce has flourished, land has risen in value. And how could it have happened otherwise? Could that which procures a freer vent for the products of the earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state--could that, in fine, which is the faithful handmaid of labor and industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of the objects upon which they are exerted? It is astonishing that so simple a truth should ever have had an adversary; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction. The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. The hereditary dominions of the Emperor of Germany contain a great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues. He has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war. But it is not in this aspect of the subject alone that Union will be seen to conduce to the purpose of revenue. There are other points of view, in which its influence will appear more immediate and decisive. It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the States have remained empty. The popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them. No person acquainted with what happens in other countries will be surprised at this circumstance. In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. Duties on imported articles form a large branch of this latter description. In America, it is evident that we must a long time depend for the means of revenue chiefly on such duties. In most parts of it, excises must be confined within a narrow compass. The genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. The pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the inperceptible agency of taxes on consumption. If these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. And it cannot admit of a serious doubt, that this state of things must rest on the basis of a general Union. As far as this would be conducive to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that source. As far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade. The relative situation of these States; the number of rivers with which they are intersected, and of bays that wash there shores; the facility of communication in every direction; the affinity of language and manners; the familiar habits of intercourse; --all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. The separate States or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. The temper of our governments, for a long time to come, would not permit those rigorous precautions by which the European nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice. In France, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. Mr. Neckar computes the number of these patrols at upwards of twenty thousand. This shows the immense difficulty in preventing that species of traffic, where there is an inland communication, and places in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the States should be placed in a situation, with respect to each other, resembling that of France with respect to her neighbors. The arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country. If, on the contrary, there be but one government pervading all the States, there will be, as to the principal part of our commerce, but ONE SIDE to guard--the ATLANTIC COAST. Vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unlade prior to their coming into port. They would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. An ordinary degree of vigilance would be competent to the prevention of any material infractions upon the rights of the revenue. A few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. And the government having the same interest to provide against violations everywhere, the co-operation of its measures in each State would have a powerful tendency to render them effectual. Here also we should preserve by Union, an advantage which nature holds out to us, and which would be relinquished by separation. The United States lie at a great distance from Europe, and at a considerable distance from all other places with which they would have extensive connections of foreign trade. The passage from them to us, in a few hours, or in a single night, as between the coasts of France and Britain, and of other neighboring nations, would be impracticable. This is a prodigious security against a direct contraband with foreign countries; but a circuitous contraband to one State, through the medium of another, would be both easy and safe. The difference between a direct importation from abroad, and an indirect importation through the channel of a neighboring State, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment. It is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the States separately, or to any partial confederacies. Hitherto, I believe, it may safely be asserted, that these duties have not upon an average exceeded in any State three per cent. In France they are estimated to be about fifteen per cent., and in Britain they exceed this proportion.1 There seems to be nothing to hinder their being increased in this country to at least treble their present amount. The single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. Upon a ratio to the importation into this State, the whole quantity imported into the United States may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. That article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. There is, perhaps, nothing so much a subject of national extravagance as these spirits. What will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent? A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede. Revenue, therefore, must be had at all events. In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. It has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the States where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. Personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption. In populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals, without much aggregate benefit to the State; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer. As the necessities of the State, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. And as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or its security. Thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. But public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion. PUBLIUS. 1 If my memory be right they amount to twenty per cent. FEDERALIST No. 13 Advantage of the Union in Respect to Economy in Government For the Independent Journal. HAMILTON To the People of the State of New York: As CONNECTED with the subject of revenue, we may with propriety consider that of economy. The money saved from one object may be usefully applied to another, and there will be so much the less to be drawn from the pockets of the people. If the States are united under one government, there will be but one national civil list to support; if they are divided into several confederacies, there will be as many different national civil lists to be provided for--and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole. The entire separation of the States into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. The ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies--one consisting of the four Northern, another of the four Middle, and a third of the five Southern States. There is little probability that there would be a greater number. According to this distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of Great Britain. No well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institutions than that which has been proposed by the convention. When the dimensions of a State attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent. This idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals; but when we consider that the island of Britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. Civil power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions. The supposition that each confederacy into which the States would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general Union. If we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different States, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. The four Eastern States, from all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. New York, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. There are other obvious reasons that would facilitate her accession to it. New Jersey is too small a State to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. Even Pennsylvania would have strong inducements to join the Northern league. An active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. The more Southern States, from various circumstances, may not think themselves much interested in the encouragement of navigation. They may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. Pennsylvania may not choose to confound her interests in a connection so adverse to her policy. As she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the Southern, rather than towards the stronger power of the Northern, Confederacy. This would give her the fairest chance to avoid being the Flanders of America. Whatever may be the determination of Pennsylvania, if the Northern Confederacy includes New Jersey, there is no likelihood of more than one confederacy to the south of that State. Nothing can be more evident than that the thirteen States will be able to support a national government better than one half, or one third, or any number less than the whole. This reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground. If, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the States would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part. PUBLIUS. FEDERALIST No. 14 Objections to the Proposed Constitution From Extent of Territory Answered From the New York Packet. Friday, November 30, 1787. MADISON To the People of the State of New York: WE HAVE seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. All that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the Union embraces. A few observations on this subject will be the more proper, as it is perceived that the adversaries of the new Constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find. The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region. To this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient Greece and modern Italy. Under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory. Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. If Europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration. As the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. Can it be said that the limits of the United States exceed this distance? It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled, and that the members from the most distant States are not chargeable with greater intermissions of attendance than those from the States in the neighborhood of Congress. That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union. The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the south the latitude of thirty-one degrees, on the west the Mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. The southern shore of Lake Erie lies below that latitude. Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. Taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. The mean distance from the Atlantic to the Mississippi does not probably exceed seven hundred and fifty miles. On a comparison of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable. It is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the Union. Favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory. In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction. A second observation to be made is that the immediate object of the federal Constitution is to secure the union of the thirteen primitive States, which we know to be practicable; and to add to them such other States as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. The arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task. Let it be remarked, in the third place, that the intercourse throughout the Union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen States. The communication between the Western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete. A fourth and still more important consideration is, that as almost every State will, on one side or other, be a frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the States which lie at the greatest distance from the heart of the Union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. It may be inconvenient for Georgia, or the States forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. If they should derive less benefit, therefore, from the Union in some respects than the less distant States, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout. I submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellowcitizens of one great, respectable, and flourishing empire. Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. No, my countrymen, shut your ears against this unhallowed language. Shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies. And if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in order to preserve our liberties and promote our happiness. But why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness. Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide. PUBLIUS. FEDERALIST No. 15 The Insufficiency of the Present Confederation to Preserve the Union For the Independent Journal. HAMILTON To the People of the State of New York. IN THE course of the preceding papers, I have endeavored, my fellow-citizens, to place before you, in a clear and convincing light, the importance of Union to your political safety and happiness. I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. In the sequel of the inquiry through which I propose to accompany you, the truths intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. If the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. It will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch. In pursuance of the plan which I have laid down for the discussion of the subject, the point next in order to be examined is the "insufficiency of the present Confederation to the preservation of the Union." It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution. It must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. The facts that support this opinion are no longer objects of speculation. They have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the Union. We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation. Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? These remain without any proper or satisfactory provision for their discharge. Have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? These are still retained, to the prejudice of our interests, not less than of our rights. Are we in a condition to resent or to repel the aggression? We have neither troops, nor treasury, nor government.1 Are we even in a condition to remonstrate with dignity? The just imputations on our own faith, in respect to the same treaty, ought first to be removed. Are we entitled by nature and compact to a free participation in the navigation of the Mississippi? Spain excludes us from it. Is public credit an indispensable resource in time of public danger? We seem to have abandoned its cause as desperate and irretrievable. Is commerce of importance to national wealth? Ours is at the lowest point of declension. Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us. Our ambassadors abroad are the mere pageants of mimic sovereignty. Is a violent and unnatural decrease in the value of land a symptom of national distress? The price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. Is private credit the friend and patron of industry? That most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. To shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes? This is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed Constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. Here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity. It is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. This renders a full display of the principal defects of the Confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric. The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist. Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option. It is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new Constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of GOVERNMENT; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy. There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the contracting powers dictate. In the early part of the present century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. With a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion. If the particular States in this country are disposed to stand in a similar relation to each other, and to drop the project of a general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable Abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us. But if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens, --the only proper objects of government. Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it. There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity. In addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. This tendency is not difficult to be accounted for. It has its origin in the love of power. Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. This simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. The reverse of this results from the constitution of human nature. If, therefore, the measures of the Confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. All this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. The same process must be repeated in every member of which the body is constituted; and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. Those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to co-operate in the same views and pursuits. In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete execution of every important measure that proceeds from the Union. It has happened as was to have been foreseen. The measures of the Union have not been executed; the delinquencies of the States have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration, till the States can have time to agree upon a more substantial substitute for the present shadow of a federal government. Things did not come to this desperate extremity at once. The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union. The greater deficiencies of some States furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent States. Why should we do more in proportion than those who are embarked with us in the same political voyage? Why should we consent to bear more than our proper share of the common burden? These were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins. PUBLIUS. 1 "I mean for the Union." FEDERALIST No. 16 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) From the New York Packet. Tuesday, December 4, 1787. HAMILTON To the People of the State of New York: THE tendency of the principle of legislation for States, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and particular examination. I shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers. This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war. It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. Specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those States which were not chargeable with any violation or omission of duty. This would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent States. If associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a Confederacy, from the firm union of which they had so much to fear. When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union. This may be considered as the violent death of the Confederacy. Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. It is not probable, considering the genius of this country, that the complying States would often be inclined to support the authority of the Union by engaging in a war against the non-complying States. They would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. And the guilt of all would thus become the security of all. Our past experience has exhibited the operation of this spirit in its full light. There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. In the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. The pretense of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. It is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council. It seems to require no pains to prove that the States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. The resources of the Union would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. Whoever considers the populousness and strength of several of these States singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. A project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity. Even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign States, supported by military coercion, has never been found effectual. It has rarely been attempted to be employed, but against the weaker members; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half. The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States. To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached. The plausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage. But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority. If opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the State governments. The magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. As to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. And as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities. PUBLIUS. FEDERALIST No. 17 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the Independent Journal. HAMILTON To the People of the State of New York: AN OBJECTION, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It may be said that it would tend to render the government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government. But let it be admitted, for argument's sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of the national representatives, or, in other words, the people of the several States, would control the indulgence of so extravagant an appetite. It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence which the State governments if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all federal constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty. The superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed. It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter. This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation. The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light,--I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union. The operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. Relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment. The reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them. Though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. There was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of INFERIOR vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons of whom they held it. Each principal vassal was a kind of sovereign, within his particular demesnes. The consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. The power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. This period of European affairs is emphatically styled by historians, the times of feudal anarchy. When the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority. But in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or States. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. The barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority. This is not an assertion founded merely in speculation or conjecture. Among other illustrations of its truth which might be cited, Scotland will furnish a cogent example. The spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with England subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom. The separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government. It will be well if they are not able to counteract its legitimate and necessary authority. The points of similitude consist in the rivalship of power, applicable to both, and in the CONCENTRATION of large portions of the strength of the community into particular DEPOSITS, in one case at the disposal of individuals, in the other case at the disposal of political bodies. A concise review of the events that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. This review shall form the subject of some ensuing papers. PUBLIUS. FEDERALIST No. 18 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the Independent Journal. HAMILTON AND MADISON To the People of the State of New York: AMONG the confederacies of antiquity, the most considerable was that of the Grecian republics, associated under the Amphictyonic council. From the best accounts transmitted of this celebrated institution, it bore a very instructive analogy to the present Confederation of the American States. The members retained the character of independent and sovereign states, and had equal votes in the federal council. This council had a general authority to propose and resolve whatever it judged necessary for the common welfare of Greece; to declare and carry on war; to decide, in the last resort, all controversies between the members; to fine the aggressing party; to employ the whole force of the confederacy against the disobedient; to admit new members. The Amphictyons were the guardians of religion, and of the immense riches belonging to the temple of Delphos, where they had the right of jurisdiction in controversies between the inhabitants and those who came to consult the oracle. As a further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple. In theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. In several material instances, they exceed the powers enumerated in the articles of confederation. The Amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions. Very different, nevertheless, was the experiment from the theory. The powers, like those of the present Congress, were administered by deputies appointed wholly by the cities in their political capacities; and exercised over them in the same capacities. Hence the weakness, the disorders, and finally the destruction of the confederacy. The more powerful members, instead of being kept in awe and subordination, tyrannized successively over all the rest. Athens, as we learn from Demosthenes, was the arbiter of Greece seventy-three years. The Lacedaemonians next governed it twenty-nine years; at a subsequent period, after the battle of Leuctra, the Thebans had their turn of domination. It happened but too often, according to Plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party. Even in the midst of defensive and dangerous wars with Persia and Macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. The intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage. After the conclusion of the war with Xerxes, it appears that the Lacedaemonians required that a number of the cities should be turned out of the confederacy for the unfaithful part they had acted. The Athenians, finding that the Lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. This piece of history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. The smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common center, had become, in fact, satellites of the orbs of primary magnitude. Had the Greeks, says the Abbe Milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the Persian arms, to establish such a reformation. Instead of this obvious policy, Athens and Sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies; and did each other infinitely more mischief than they had suffered from Xerxes. Their mutual jealousies, fears, hatreds, and injuries ended in the celebrated Peloponnesian war; which itself ended in the ruin and slavery of the Athenians who had begun it. As a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad. The Phocians having ploughed up some consecrated ground belonging to the temple of Apollo, the Amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. The Phocians, being abetted by Athens and Sparta, refused to submit to the decree. The Thebans, with others of the cities, undertook to maintain the authority of the Amphictyons, and to avenge the violated god. The latter, being the weaker party, invited the assistance of Philip of Macedon, who had secretly fostered the contest. Philip gladly seized the opportunity of executing the designs he had long planned against the liberties of Greece. By his intrigues and bribes he won over to his interests the popular leaders of several cities; by their influence and votes, gained admission into the Amphictyonic council; and by his arts and his arms, made himself master of the confederacy. Such were the consequences of the fallacious principle on which this interesting establishment was founded. Had Greece, says a judicious observer on her fate, been united by a stricter confederation, and persevered in her union, she would never have worn the chains of Macedon; and might have proved a barrier to the vast projects of Rome. The Achaean league, as it is called, was another society of Grecian republics, which supplies us with valuable instruction. The Union here was far more intimate, and its organization much wiser, than in the preceding instance. It will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it. The cities composing this league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. The senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. According to the primitive constitution, there were two praetors associated in the administration; but on trial a single one was preferred. It appears that the cities had all the same laws and customs, the same weights and measures, and the same money. But how far this effect proceeded from the authority of the federal council is left in uncertainty. It is said only that the cities were in a manner compelled to receive the same laws and usages. When Lacedaemon was brought into the league by Philopoemen, it was attended with an abolition of the institutions and laws of Lycurgus, and an adoption of those of the Achaeans. The Amphictyonic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. This circumstance alone proves a very material difference in the genius of the two systems. It is much to be regretted that such imperfect monuments remain of this curious political fabric. Could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted. One important fact seems to be witnessed by all the historians who take notice of Achaean affairs. It is, that as well after the renovation of the league by Aratus, as before its dissolution by the arts of Macedon, there was infinitely more of moderation and justice in the administration of its government, and less of violence and sedition in the people, than were to be found in any of the cities exercising SINGLY all the prerogatives of sovereignty. The Abbe Mably, in his observations on Greece, says that the popular government, which was so tempestuous elsewhere, caused no disorders in the members of the Achaean republic, BECAUSE IT WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY. We are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities; much less that a due subordination and harmony reigned in the general system. The contrary is sufficiently displayed in the vicissitudes and fate of the republic. Whilst the Amphictyonic confederacy remained, that of the Achaeans, which comprehended the less important cities only, made little figure on the theatre of Greece. When the former became a victim to Macedon, the latter was spared by the policy of Philip and Alexander. Under the successors of these princes, however, a different policy prevailed. The arts of division were practiced among the Achaeans. Each city was seduced into a separate interest; the union was dissolved. Some of the cities fell under the tyranny of Macedonian garrisons; others under that of usurpers springing out of their own confusions. Shame and oppression erelong awaken their love of liberty. A few cities reunited. Their example was followed by others, as opportunities were found of cutting off their tyrants. The league soon embraced almost the whole Peloponnesus. Macedon saw its progress; but was hindered by internal dissensions from stopping it. All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in Sparta and Athens, of the rising glory of the Achaeans, threw a fatal damp on the enterprise. The dread of the Macedonian power induced the league to court the alliance of the Kings of Egypt and Syria, who, as successors of Alexander, were rivals of the king of Macedon. This policy was defeated by Cleomenes, king of Sparta, who was led by his ambition to make an unprovoked attack on his neighbors, the Achaeans, and who, as an enemy to Macedon, had interest enough with the Egyptian and Syrian princes to effect a breach of their engagements with the league. The Achaeans were now reduced to the dilemma of submitting to Cleomenes, or of supplicating the aid of Macedon, its former oppressor. The latter expedient was adopted. The contests of the Greeks always afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. A Macedonian army quickly appeared. Cleomenes was vanquished. The Achaeans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. All that their most abject compliances could obtain from him was a toleration of the exercise of their laws. Philip, who was now on the throne of Macedon, soon provoked by his tyrannies, fresh combinations among the Greeks. The Achaeans, though weakened by internal dissensions and by the revolt of Messene, one of its members, being joined by the AEtolians and Athenians, erected the standard of opposition. Finding themselves, though thus supported, unequal to the undertaking, they once more had recourse to the dangerous expedient of introducing the succor of foreign arms. The Romans, to whom the invitation was made, eagerly embraced it. Philip was conquered; Macedon subdued. A new crisis ensued to the league. Dissensions broke out among it members. These the Romans fostered. Callicrates and other popular leaders became mercenary instruments for inveigling their countrymen. The more effectually to nourish discord and disorder the Romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty1 throughout Greece. With the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. By these arts this union, the last hope of Greece, the last hope of ancient liberty, was torn into pieces; and such imbecility and distraction introduced, that the arms of Rome found little difficulty in completing the ruin which their arts had commenced. The Achaeans were cut to pieces, and Achaia loaded with chains, under which it is groaning at this hour. I have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the Achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head. PUBLIUS. 1 This was but another name more specious for the independence of the members on the federal head. FEDERALIST No. 19 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) For the Independent Journal. HAMILTON AND MADISON To the People of the State of New York: THE examples of ancient confederacies, cited in my last paper, have not exhausted the source of experimental instruction on this subject. There are existing institutions, founded on a similar principle, which merit particular consideration. The first which presents itself is the Germanic body. In the early ages of Christianity, Germany was occupied by seven distinct nations, who had no common chief. The Franks, one of the number, having conquered the Gauls, established the kingdom which has taken its name from them. In the ninth century Charlemagne, its warlike monarch, carried his victorious arms in every direction; and Germany became a part of his vast dominions. On the dismemberment, which took place under his sons, this part was erected into a separate and independent empire. Charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. But the principal vassals, whose fiefs had become hereditary, and who composed the national diets which Charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and independence. The force of imperial sovereignty was insufficient to restrain such powerful dependants; or to preserve the unity and tranquillity of the empire. The most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. The imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the Suabian, and the accession of the first emperor of the Austrian lines. In the eleventh century the emperors enjoyed full sovereignty: In the fifteenth they had little more than the symbols and decorations of power. Out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the Germanic empire. Its powers are vested in a diet representing the component members of the confederacy; in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and in the imperial chamber and the aulic council, two judiciary tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members. The diet possesses the general power of legislating for the empire; of making war and peace; contracting alliances; assessing quotas of troops and money; constructing fortresses; regulating coin; admitting new members; and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited. The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. And the ban is denounced against such as shall violate any of these restrictions. The members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber. The prerogatives of the emperor are numerous. The most important of them are: his exclusive right to make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the empire; to receive and apply the public revenues; and generally to watch over the public safety. In certain cases, the electors form a council to him. In quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. But his revenue and dominions, in other qualities, constitute him one of the most powerful princes in Europe. From such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. Nothing would be further from the reality. The fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels. The history of Germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak; of foreign intrusions, and foreign intrigues; of requisitions of men and money disregarded, or partially complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty; of general inbecility, confusion, and misery. In the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. In one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of Saxony. The late king of Prussia was more than once pitted against his imperial sovereign; and commonly proved an overmatch for him. Controversies and wars among the members themselves have been so common, that the German annals are crowded with the bloody pages which describe them. Previous to the peace of Westphalia, Germany was desolated by a war of thirty years, in which the emperor, with one half of the empire, was on one side, and Sweden, with the other half, on the opposite side. Peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the Germanic constitution. If the nation happens, on any emergency, to be more united by the necessity of self-defense, its situation is still deplorable. Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies, that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters. The small body of national troops, which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury. The impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the experiment of dividing the empire into nine or ten circles or districts; of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members. This experiment has only served to demonstrate more fully the radical vice of the constitution. Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy. We may form some judgment of this scheme of military coercion from a sample given by Thuanus. In Donawerth, a free and imperial city of the circle of Suabia, the Abb 300 de St. Croix enjoyed certain immunities which had been reserved to him. In the exercise of these, on some public occasions, outrages were committed on him by the people of the city. The consequence was that the city was put under the ban of the empire, and the Duke of Bavaria, though director of another circle, obtained an appointment to enforce it. He soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory,1 he took possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains. It may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? The answer is obvious: The weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the emperor derives from his separate and heriditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in Europe; --these causes support a feeble and precarious Union; whilst the repellant quality, incident to the nature of sovereignty, and which time continually strengthens, prevents any reform whatever, founded on a proper consolidation. Nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place which would give to the empire the force and preeminence to which it is entitled. Foreign nations have long considered themselves as interested in the changes made by events in this constitution; and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness. If more direct examples were wanting, Poland, as a government over local sovereigns, might not improperly be taken notice of. Nor could any proof more striking be given of the calamities flowing from such institutions. Equally unfit for self-government and self-defense, it has long been at the mercy of its powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories. The connection among the Swiss cantons scarcely amounts to a confederacy; though it is sometimes cited as an instance of the stability of such institutions. They have no common treasury; no common troops even in war; no common coin; no common judicatory; nor any other common mark of sovereignty. They are kept together by the peculiarity of their topographical position; by their individual weakness and insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few sources of contention among a people of such simple and homogeneous manners; by their joint interest in their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and rebellions, an aid expressly stipulated and often required and afforded; and by the necessity of some regular and permanent provision for accomodating disputes among the cantons. The provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. This tribunal, under an oath of impartiality, pronounces definitive sentence, which all the cantons are bound to enforce. The competency of this regulation may be estimated by a clause in their treaty of 1683, with Victor Amadeus of Savoy; in which he obliges himself to interpose as mediator in disputes between the cantons, and to employ force, if necessary, against the contumacious party. So far as the peculiarity of their case will admit of comparison with that of the United States, it serves to confirm the principle intended to be established. Whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. The controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. The Protestant and Catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages. That separation had another consequence, which merits attention. It produced opposite alliances with foreign powers: of Berne, at the head of the Protestant association, with the United Provinces; and of Luzerne, at the head of the Catholic association, with France. PUBLIUS. 1 Pfeffel, "Nouvel Abreg. Chronol. de l'Hist., etc., d'Allemagne," says the pretext was to indemnify himself for the expense of the expedition. FEDERALIST No. 20 The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union) From the New York Packet. Tuesday, December 11, 1787. HAMILTON AND MADISON To the People of the State of New York: THE United Netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed. The union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. In all important cases, not only the provinces but the cities must be unanimous. The sovereignty of the Union is represented by the States-General, consisting usually of about fifty deputies appointed by the provinces. They hold their seats, some for life, some for six, three, and one years; from two provinces they continue in appointment during pleasure. The States-General have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas and demand contributions. In all these cases, however, unanimity and the sanction of their constituents are requisite. They have authority to appoint and receive ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the dependent territories. The provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. A council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration. The executive magistrate of the union is the stadtholder, who is now an hereditary prince. His principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of Europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon. As stadtholder of the union, he has, however, considerable prerogatives. In his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the States-General, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts. In his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns. In his marine capacity he is admiral-general, and superintends and directs every thing relative to naval forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenant-admirals and other officers; and establishes councils of war, whose sentences are not executed till he approves them. His revenue, exclusive of his private income, amounts to three hundred thousand florins. The standing army which he commands consists of about forty thousand men. Such is the nature of the celebrated Belgic confederacy, as delineated on parchment. What are the characters which practice has stamped upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war. It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution. The union of Utrecht, says another respectable writer, reposes an authority in the States-General, seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory. The same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota. In matters of contribution, it is the practice to waive the articles of the constitution. The danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. The great wealth and influence of the province of Holland enable her to effect both these purposes. It has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confedracy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense. Foreign ministers, says Sir William Temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. In 1726, the treaty of Hanover was delayed by these means a whole year. Instances of a like nature are numerous and notorious. In critical emergencies, the States-General are often compelled to overleap their constitutional bounds. In 1688, they concluded a treaty of themselves at the risk of their heads. The treaty of Westphalia, in 1648, by which their independence was formerly and finally recognized, was concluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the constitutional principle of unanimity was departed from. A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities. Notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. "Under such a government," says the Abbe Mably, "the Union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. This spring is the stadtholder." It is remarked by Sir William Temple, "that in the intermissions of the stadtholdership, Holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place." These are not the only circumstances which have controlled the tendency to anarchy and dissolution. The surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy. The true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by EXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply a remedy. As many times has their laudable zeal found it impossible to UNITE THE PUBLIC COUNCILS in reforming the known, the acknowledged, the fatal evils of the existing constitution. Let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness. A design was also conceived of establishing a general tax to be administered by the federal authority. This also had its adversaries and failed. This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their destiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own. I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY. PUBLIUS. FEDERALIST No. 21 Other Defects of the Present Confederation For the Independent Journal. HAMILTON To the People of the State of New York: HAVING in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, I shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. To form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease. The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by inference and construction, in the face of that part of the second article, by which it is declared, "that each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States in Congress assembled." There is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new Constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. It will appear, from the specimens which have been cited, that the American Confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world. The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws. Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government. The tempestuous situation from which Massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a Caesar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York? The inordinate pride of State importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. It could be no impediment to reforms of the State constitution by a majority of the people in a legal and peaceable mode. This right would remain undiminished. The guaranty could only operate against changes to be effected by violence. Towards the preventions of calamities of this kind, too many checks cannot be provided. The peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men. A guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community. The principle of regulating the contributions of the States to the common treasury by QUOTAS is another fundamental error in the Confederation. Its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. I speak of it now solely with a view to equality among the States. Those who have been accustomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of State contributions, has any pretension to being a just representative. If we compare the wealth of the United Netherlands with that of Russia or Germany, or even of France, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. If the like parallel were to be run between several of the American States, it would furnish a like result. Let Virginia be contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and we shall be convinced that the respective abilities of those States, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative population. The position may be equally illustrated by a similar process between the counties of the same State. No man who is acquainted with the State of New York will doubt that the active wealth of King's County bears a much greater proportion to that of Montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people as a criterion! The wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. The consequence clearly is that there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression. This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some States, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. This, however, is an evil inseparable from the principle of quotas and requisitions. There is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. If inequalities should arise in some States from duties on particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other States, from the duties on other objects. In the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. Or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised. It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, "in political arithmetic, two and two do not always make four." If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them. Impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Either the value of land, or the number of the people, may serve as a standard. The state of agriculture and the populousness of a country have been considered as nearly connected with each other. And, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. In every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. The expense of an accurate valuation is, in all situations, a formidable objection. In a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large. PUBLIUS. FEDERALIST No. 22 The Same Subject Continued (Other Defects of the Present Confederation) From the New York Packet. Friday, December 14, 1787. HAMILTON To the People of the State of New York: IN ADDITION to the defects already enumerated in the existing federal system, there are others of not less importance, which concur in rendering it altogether unfit for the administration of the affairs of the Union. The want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. It is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States. No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the American government was likely or not to acquire greater consistency. [1] Several States have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the State, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist. The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. "The commerce of the German empire [2] is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless." Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens. The power of raising armies, by the most obvious construction of the articles of the Confederation, is merely a power of making requisitions upon the States for quotas of men. This practice in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defense. It gave birth to a competition between the States which created a kind of auction for men. In order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. The hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. Hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. Hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure. This method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. The States near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. The immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. The States which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. We shall not, however, see much reason to reget the want of this hope, when we consider how little prospect there is, that the most delinquent States will ever be able to make compensation for their pecuniary failures. The system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the Union, and of inequality and injustice among the members. The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America [3]; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration. It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine States would always comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine States which contain less than a majority of the people [4]; and it is constitutionally possible that these nine may give the vote. Besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven States, would extend its operation to interests of the first magnitude. In addition to this, it is to be observed that there is a probability of an increase in the number of States, and no provision for a proportional augmentation of the ratio of votes. But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy. It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. Suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. In the first case, he would have to corrupt a smaller number; in the last, a greater number. Upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions. And, in a commercial view, we may be subjected to similar inconveniences. A nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves. Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind. In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those deputies. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled. A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the came court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation? In this review of the Confederation, I have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters. The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States. If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon Congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus, we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert. It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. PUBLIUS. FNA1-@1 This, as nearly as I can recollect, was the sense of his speech on introducing the last bill. FNA1-@2 Encyclopedia, article "Empire." FNA1-@3 New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the whole number of the States, but they do not contain one third of the people. FNA1-@4 Add New York and Connecticut to the foregoing seven, and they will be less than a majority. FEDERALIST No. 23 The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union From the New York Packet. Tuesday, December 18, 1787. HAMILTON To the People of the State of New York: THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived. This inquiry will naturally divide itself into three branches the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head. The principal purposes to be answered by union are these the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries. The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the MEANS ought to be proportioned to the END; the persons, from whose agency the attainment of any END is expected, ought to possess the MEANS by which it is to be attained. Whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES. Defective as the present Confederation has been proved to be, this principle appears to have been fully recognized by the framers of it; though they have not made proper or adequate provision for its exercise. Congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. As their requisitions are made constitutionally binding upon the States, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the United States should command whatever resources were by them judged requisite to the "common defense and general welfare." It was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head. The experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, I imagine, have sufficed to convince the impartial and discerning, that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the Union energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities; we must extend the laws of the federal government to the individual citizens of America; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. The result from all this is that the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments. If the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the OBJECTS, as far as it can be done, which shall appertain to the different provinces or departments of power; allowing to each the most ample authority for fulfilling the objects committed to its charge. Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. The same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend. Is the administration of justice between the citizens of the same State the proper department of the local governments? These must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. Not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success. Who is likely to make suitable provisions for the public defense, as that body to which the guardianship of the public safety is confided; which, as the centre of information, will best understand the extent and urgency of the dangers that threaten; as the representative of the WHOLE, will feel itself most deeply interested in the preservation of every part; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its authority throughout the States, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured? Is there not a manifest inconsistency in devolving upon the federal government the care of the general defense, and leaving in the State governments the EFFECTIVE powers by which it is to be provided for? Is not a want of co-operation the infallible consequence of such a system? And will not weakness, disorder, an undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? Have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished? Every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. It will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite powers. If any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. A government, the constitution of which renders it unfit to be trusted with all the powers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT, would be an unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can with propriety be confided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject. And the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. They ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. The POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for the management of our NATIONAL INTERESTS; nor can any satisfactory argument be framed to show that they are chargeable with such an excess. If it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensible to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative. I trust, however, that the impracticability of one general system cannot be shown. I am greatly mistaken, if any thing of weight has yet been advanced of this tendency; and I flatter myself, that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. This, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the Union of so large an empire. If we embrace the tenets of those who oppose the adoption of the proposed Constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present Confederacy. PUBLIUS. FEDERALIST No. 24 The Powers Necessary to the Common Defense Further Considered For the Independent Journal. HAMILTON To the People of the State of New York: To THE powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, I shall now endeavor to show, rests on weak and unsubstantial foundations. It has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of America, as expressed in most of the existing constitutions. The proprietory of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the LEGISLATIVE authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our State constitutions, and rejected in all the rest. A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature. If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity. Disappointed in his first surmise, the person I have supposed would be apt to pursue his conjectures a little further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. It must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor. If, under this impression, he proceeded to pass in review the several State constitutions, how great would be his disappointment to find that TWO ONLY of them [1] contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the Legislature to authorize their existence. Still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. He would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe to himself, the existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions. If he should now apply himself to a careful and critical survey of the articles of Confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! How else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of America as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? If, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. Even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings. But however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed. Though a wide ocean separates the United States from Europe, yet there are various considerations that warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belonging to these two powers create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of the family compact between France and Spain. And politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. These circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger. Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature. In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain would augment their military establishments in our neighborhood. If we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our Western settlements might be annoyed. There are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. It may be added that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy. If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. When a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself. PUBLIUS. FNA1-@1 This statement of the matter is taken from the printed collection of State constitutions. Pennsylvania and North Carolina are the two which contain the interdiction in these words: "As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up." This is, in truth, rather a CAUTION than a PROHIBITION. New Hampshire, Massachusetts, Delaware, and Maryland have, in each of their bils of rights, a clause to this effect: "Standing armies are dangerous to liberty, and ought not to be raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE"; which is a formal admission of the authority of the Legislature. New York has no bills of rights, and her constitution says not a word about the matter. No bills of rights appear annexed to the constitutions of the other States, except the foregoing, and their constitutions are equally silent. I am told, however that one or two States have bills of rights which do not appear in this collection; but that those also recognize the right of the legislative authority in this respect. FEDERALIST No. 25 The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered) From the New York Packet. Friday, December 21, 1787. HAMILTON To the People of the State of New York: IT MAY perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the State governments, under the direction of the Union. But this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some States, dangerous to all, and baneful to the Confederacy. The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common. And the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. It happens that some States, from local situation, are more directly exposed. New York is of this class. Upon the plan of separate provisions, New York would have to sustain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. This would neither be equitable as it respected New York nor safe as it respected the other States. Various inconveniences would attend such a system. The States, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. The security of all would thus be subjected to the parsimony, improvidence, or inability of a part. If the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other States would quickly take the alarm at seeing the whole military force of the Union in the hands of two or three of its members, and those probably amongst the most powerful. They would each choose to have some counterpoise, and pretenses could easily be contrived. In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority. Reasons have been already given to induce a supposition that the State governments will too naturally be prone to a rivalship with that of the Union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. If, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the Union. On the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion. The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions. There are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. The design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend; whether to raising armies as well as to KEEPING THEM UP in a season of tranquillity or not. If it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. When armies are once raised what shall be denominated "keeping them up," contrary to the sense of the Constitution? What time shall be requisite to ascertain the violation? Shall it be a week, a month, a year? Or shall we say they may be continued as long as the danger which occasioned their being raised continues? This would be to admit that they might be kept up IN TIME OF PEACE, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. Who shall judge of the continuance of the danger? This must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. It is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision. The supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. Should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! Indian hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. If we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project. If, to obviate this consequence, it should be resolved to extend the prohibition to the RAISING of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its Constitution to prepare for defense, before it was actually invaded. As the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the State. We must receive the blow, before we could even prepare to return it. All that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. We must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation. Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice. All violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. Pennsylvania, at this instant, affords an example of the truth of this remark. The Bill of Rights of that State declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. Pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. The particular constitution of Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. It also teaches us, in its application to the United States, how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity. It was a fundamental maxim of the Lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. The Peloponnesian confederates, having suffered a severe defeat at sea from the Athenians, demanded Lysander, who had before served with success in that capacity, to command the combined fleets. The Lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing Lysander with the real power of admiral, under the nominal title of vice-admiral. This instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable. PUBLIUS. FEDERALIST No. 26 The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered For the Independent Journal. HAMILTON To the People of the State of New York: IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better. The idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. We have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, Pennsylvania and North Carolina are the only two States by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. The opponents of the proposed Constitution combat, in this respect, the general decision of America; and instead of being taught by experience the propriety of correcting any extremes into which we may have heretofore run, they appear disposed to conduct us into others still more dangerous, and more extravagant. As if the tone of government had been found too high, or too rigid, the doctrines they teach are calculated to induce us to depress or to relax it, by expedients which, upon other occasions, have been condemned or forborne. It may be affirmed without the imputation of invective, that if the principles they inculcate, on various points, could so far obtain as to become the popular creed, they would utterly unfit the people of this country for any species of government whatever. But a danger of this kind is not to be apprehended. The citizens of America have too much discernment to be argued into anarchy. And I am much mistaken, if experience has not wrought a deep and solemn conviction in the public mind, that greater energy of government is essential to the welfare and prosperity of the community. It may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. Though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these States have in general sprung. In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II. increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that "the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law." In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community. From the same source, the people of America may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. The circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raise the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. The attempts of two of the States to restrict the authority of the legislature in the article of military establishments, are of the number of these instances. The principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. Even in some of the States, where this error was not adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I call them unnecessary, because the reason which had introduced a similar provision into the English Bill of Rights is not applicable to any of the State constitutions. The power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. Accordingly, in some of these constitutions, and among others, in that of this State of New York, which has been justly celebrated, both in Europe and America, as one of the best of the forms of government established in this country, there is a total silence upon the subject. It is remarkable, that even in the two States which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory. It is not said, that standing armies SHALL NOT BE kept up, but that they OUGHT NOT to be kept up, in time of peace. This ambiguity of terms appears to have been the result of a conflict between jealousy and conviction; between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe. Can it be doubted that such a provision, whenever the situation of public affairs was understood to require a departure from it, would be interpreted by the legislature into a mere admonition, and would be made to yield to the necessities or supposed necessities of the State? Let the fact already mentioned, with respect to Pennsylvania, decide. What then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it? Let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new Constitution, for restraining the appropriations of money for military purposes to the period of two years. The former, by aiming at too much, is calculated to effect nothing; the latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision for the exigencies of the nation, will have a salutary and powerful operation. The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent. Schemes to subvert the liberties of a great community REQUIRE TIME to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable, that every man, the instant he took his seat in the national Senate or House of Representatives, would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person. If such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. It would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. What colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? It is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery. It has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the Executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. But the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? If we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. Few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamaties for which there is neither preventative nor cure. It cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense. But it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. It is not easy to conceive a possibility that dangers so formidable can assail the whole Union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. But in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable. PUBLIUS. FEDERALIST No. 27 The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered) From the New York Packet. Tuesday, December 25, 1787. HAMILTON To the People of the State of New York: IT HAS been urged, in different shapes, that a Constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. This, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. As far as I have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature. Waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground there is to presuppose that disinclination in the people. Unless we presume at the same time that the powers of the general government will be worse administered than those of the State government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. I believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration. It must be admitted that there are exceptions to this rule; but these exceptions depend so entirely on accidental causes, that they cannot be considered as having any relation to the intrinsic merits or demerits of a constitution. These can only be judged of by general principles and maxims. Various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments; the principal of which reasons are that the extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the medium of the State legislatures which are select bodies of men, and which are to appoint the members of the national Senate there is reason to expect that this branch will generally be composed with peculiar care and judgment; that these circumstances promise greater knowledge and more extensive information in the national councils, and that they will be less apt to be tainted by the spirit of faction, and more out of the reach of those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which, though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction, and disgust. Several additional reasons of considerable force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members. The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole Confederacy, be more likely to repress the FORMER sentiment and to inspire the LATTER, than that of a single State, which can only command the resources within itself? A turbulent faction in a State may easily suppose itself able to contend with the friends to the government in that State; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the Union. If this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the Confederacy than to that of a single member. I will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit. A thing that rarely strikes his senses will generally have but little influence upon his mind. A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channels and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion. One thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force, than that species of league contend for by most of its opponents; the authority of which should only operate upon the States in their political or collective capacities. It has been shown that in such a Confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence. The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole Union. It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws. [1%] Any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the Union, if its powers are administered with a common share of prudence. If we will arbitrarily suppose the contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and precipitate the people into the wildest excesses. But though the adversaries of the proposed Constitution should presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, I would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a conduct? PUBLIUS. FNA1-@1 The sophistry which has been employed to show that this will tend to the destruction of the State governments, will, in its will, in its proper place, be fully detected. FEDERALIST No. 28 The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered) For the Independent Journal. HAMILTON To the People of the State of New York: THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government. Regard to the public peace, if not to the rights of the Union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support. If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops for repressing the disorders within that State; that Pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. Suppose the State of New York had been inclined to re-establish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the State governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? Is it not surprising that men who declare an attachment to the Union in the abstract, should urge as an objection to the proposed Constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics? Let us pursue this examination in another light. Suppose, in lieu of one general system, two, or three, or even four Confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these Confederacies? Would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the States? Would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? All candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the States, or different governments for different parcels of them, or even if there should be an entire separation of the States, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions. Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society. [1] If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance. The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized! It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty. The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign power. And it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. If the federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive. We should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. For a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning. PUBLIUS. FNA1-@1 Its full efficacy will be examined hereafter. FEDERALIST No. 29 Concerning the Militia From the Daily Advertiser. Thursday, January 10, 1788 HAMILTON To the People of the State of New York: THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy. It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS." Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and judgment? By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse: "The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. "But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can foresee. There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia. In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes "Gorgons, hydras, and chimeras dire"; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster. A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d'ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths? If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs. In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of selfpreservation to the too feeble impulses of duty and sympathy. PUBLIUS. FEDERALIST No. 30 Concerning the General Power of Taxation From the New York Packet. Friday, December 28, 1787. HAMILTON To the People of the State of New York: IT HAS been already observed that the federal government ought to possess the power of providing for the support of the national forces; in which proposition was intended to be included the expense of raising troops, of building and equipping fleets, and all other expenses in any wise connected with military arrangements and operations. But these are not the only objects to which the jurisdiction of the Union, in respect to revenue, must necessarily be empowered to extend. It must embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury. The conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another. Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish. In the Ottoman or Turkish empire, the sovereign, though in other respects absolute master of the lives and fortunes of his subjects, has no right to impose a new tax. The consequence is that he permits the bashaws or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums of which he stands in need, to satisfy his own exigencies and those of the state. In America, from a like cause, the government of the Union has gradually dwindled into a state of decay, approaching nearly to annihilation. Who can doubt, that the happiness of the people in both countries would be promoted by competent authorities in the proper hands, to provide the revenues which the necessities of the public might require? The present Confederation, feeble as it is intended to repose in the United States, an unlimited power of providing for the pecuniary wants of the Union. But proceeding upon an erroneous principle, it has been done in such a manner as entirely to have frustrated the intention. Congress, by the articles which compose that compact (as has already been stated), are authorized to ascertain and call for any sums of money necessary, in their judgment, to the service of the United States; and their requisitions, if conformable to the rule of apportionment, are in every constitutional sense obligatory upon the States. These have no right to question the propriety of the demand; no discretion beyond that of devising the ways and means of furnishing the sums demanded. But though this be strictly and truly the case; though the assumption of such a right would be an infringement of the articles of Union; though it may seldom or never have been avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as the revenues of the Confederacy should remain dependent on the intermediate agency of its members. What the consequences of this system have been, is within the knowledge of every man the least conversant in our public affairs, and has been amply unfolded in different parts of these inquiries. It is this which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification to ourselves, and of triumph to our enemies. What remedy can there be for this situation, but in a change of the system which has produced it in a change of the fallacious and delusive system of quotas and requisitions? What substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? Ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury. The more intelligent adversaries of the new Constitution admit the force of this reasoning; but they qualify their admission by a distinction between what they call INTERNAL and EXTERNAL taxation. The former they would reserve to the State governments; the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head. This distinction, however, would violate the maxim of good sense and sound policy, which dictates that every POWER ought to be in proportion to its OBJECT; and would still leave the general government in a kind of tutelage to the State governments, inconsistent with every idea of vigor or efficiency. Who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the Union? Taking into the account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately impressed with the importance of public justice and public credit could approve, in addition to the establishments which all parties will acknowledge to be necessary, we could not reasonably flatter ourselves, that this resource alone, upon the most improved scale, would even suffice for its present necessities. Its future necessities admit not of calculation or limitation; and upon the principle, more than once adverted to, the power of making provision for them as they arise ought to be equally unconfined. I believe it may be regarded as a position warranted by the history of mankind, that, IN THE USUAL PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES. To say that deficiencies may be provided for by requisitions upon the States, is on the one hand to acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for every thing beyond a certain limit. Those who have carefully attended to its vices and deformities as they have been exhibited by experience or delineated in the course of these papers, must feel invincible repugnancy to trusting the national interests in any degree to its operation. Its inevitable tendency, whenever it is brought into activity, must be to enfeeble the Union, and sow the seeds of discord and contention between the federal head and its members, and between the members themselves. Can it be expected that the deficiencies would be better supplied in this mode than the total wants of the Union have heretofore been supplied in the same mode? It ought to be recollected that if less will be required from the States, they will have proportionably less means to answer the demand. If the opinions of those who contend for the distinction which has been mentioned were to be received as evidence of truth, one would be led to conclude that there was some known point in the economy of national affairs at which it would be safe to stop and to say: Thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good? Let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged. We will presume, for argument's sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the Union. Thus circumstanced, a war breaks out. What would be the probable conduct of the government in such an emergency? Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the State? It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. To imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. In the modern system of war, nations the most wealthy are obliged to have recourse to large loans. A country so little opulent as ours must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? The loans it might be able to procure would be as limited in their extent as burdensome in their conditions. They would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors, with a sparing hand and at enormous premiums. It may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of diverting the established funds in the case supposed would exist, though the national government should possess an unrestrained power of taxation. But two considerations will serve to quiet all apprehension on this head: one is, that we are sure the resources of the community, in their full extent, will be brought into activity for the benefit of the Union; the other is, that whatever deficiences there may be, can without difficulty be supplied by loans. The power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. Foreigners, as well as the citizens of America, could then reasonably repose confidence in its engagements; but to depend upon a government that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when once its situation is clearly understood, would require a degree of credulity not often to be met with in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice. Reflections of this kind may have trifling weight with men who hope to see realized in America the halcyon scenes of the poetic or fabulous age; but to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, they must appear entitled to serious attention. Such men must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it. PUBLIUS. FEDERALIST No. 31 The Same Subject Continued (Concerning the General Power of Taxation) From the New York Packet. Tuesday, January 1, 1788. HAMILTON To the People of the State of New York: IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. Where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice. Of this nature are the maxims in geometry, that "the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other." Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. And there are other truths in the two latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of common-sense, that they challenge the assent of a sound and unbiased mind, with a degree of force and conviction almost equally irresistible. The objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more simple theorems of the science, but even those abstruse paradoxes which, however they may appear susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid of philosophy, would be led to entertain upon the subject. The INFINITE DIVISIBILITY of matter, or, in other words, the INFINITE divisibility of a FINITE thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously leveled. But in the sciences of morals and politics, men are found far less tractable. To a certain degree, it is right and useful that this should be the case. Caution and investigation are a necessary armor against error and imposition. But this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. Though it cannot be pretended that the principles of moral and political knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have much better claims in this respect than, to judge from the conduct of men in particular situations, we should be disposed to allow them. The obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. Men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties. How else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear as those which manifest the necessity of a general power of taxation in the government of the Union, should have to encounter any adversaries among men of discernment? Though these positions have been elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an examination of what may have been offered by way of objection to them. They are in substance as follows: A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people. As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community. As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies. As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes. Did not experience evince the contrary, it would be natural to conclude that the propriety of a general power of taxation in the national government might safely be permitted to rest on the evidence of these propositions, unassisted by any additional arguments or illustrations. But we find, in fact, that the antagonists of the proposed Constitution, so far from acquiescing in their justness or truth, seem to make their principal and most zealous effort against this part of the plan. It may therefore be satisfactory to analyze the arguments with which they combat it. Those of them which have been most labored with that view, seem in substance to amount to this: "It is not true, because the exigencies of the Union may not be susceptible of limitation, that its power of laying taxes ought to be unconfined. Revenue is as requisite to the purposes of the local administrations as to those of the Union; and the former are at least of equal importance with the latter to the happiness of the people. It is, therefore, as necessary that the State governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the Union. But an indefinite power of taxation in the LATTER might, and probably would in time, deprive the FORMER of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land, as it is to have power to pass all laws that may be NECESSARY for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for State objects upon the pretense of an interference with its own. It might allege a necessity of doing this in order to give efficacy to the national revenues. And thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the State governments." This mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers. It is only in the latter light that it can be admitted to have any pretensions to fairness. The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution. I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. The State governments, by their original constitutions, are invested with complete sovereignty. In what does our security consist against usurpation from that quarter? Doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. If the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species of security, all apprehensions on the score of usurpation ought to be discarded. It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments. What side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. As in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the Union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members. But it is evident that all conjectures of this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments. Upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the United States. PUBLIUS. FEDERALIST No. 32 The Same Subject Continued (Concerning the General Power of Taxation) From the Daily Advertiser. Thursday, January 3, 1788. HAMILTON To the People of the State of New York: ALTHOUGH I am of opinion that there would be no real danger of the consequences which seem to be apprehended to the State governments from a power in the Union to control them in the levies of money, because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the State governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution. An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT. I use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the POLICY of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. These three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: The last clause but one in the eighth section of the first article provides expressly that Congress shall exercise "EXCLUSIVE LEGISLATION" over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers Congress "TO LAY AND COLLECT TAXES, DUTIES, IMPOSTS AND EXCISES"; and the second clause of the tenth section of the same article declares that, "NO STATE SHALL, without the consent of Congress, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS, except for the purpose of executing its inspection laws." Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification, it now only extends to the DUTIES ON IMPORTS. This answers to the second case. The third will be found in that clause which declares that Congress shall have power "to establish an UNIFORM RULE of naturalization throughout the United States." This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE. A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and coequal authority in the United States and in the individual States. There is plainly no expression in the granting clause which makes that power EXCLUSIVE in the Union. There is no independent clause or sentence which prohibits the States from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the States in relation to duties on imports and exports. This restriction implies an admission that, if it were not inserted, the States would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the States remains undiminished. In any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the Union of the power of laying such duties implied the exclusion of the States, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an AFFIRMANCE of another; a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue that it was meant to exclude them ABSOLUTELY from the imposition of taxes of the former kind, and to leave them at liberty to lay others SUBJECT TO THE CONTROL of the national legislature. The restraining or prohibitory clause only says, that they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the States, WITH THE CONSENT of the national legislature, might tax imports and exports; and that they might tax every other article, UNLESS CONTROLLED by the same body. If this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union? It is evident that this could not have been the intention, and that it will not bear a construction of the kind. As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it INEXPEDIENT that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty. The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary. PUBLIUS. FEDERALIST No. 33 The Same Subject Continued (Concerning the General Power of Taxation) From the Daily Advertiser. January 3, 1788. HAMILTON To the People of the State of New York: THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature "to make all laws which shall be NECESSARY and PROPER for carrying into execution THE POWERS by that Constitution vested in the government of the United States, or in any department or officer thereof"; and the second clause of the sixth article declares, "that the Constitution and the laws of the United States made IN PURSUANCE THEREOF, and the treaties made by their authority shall be the SUPREME LAW of the land, any thing in the constitution or laws of any State to the contrary notwithstanding." These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws? This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the unfortunate and culumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless. But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare. But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths. But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed. Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union. PUBLIUS. FEDERALIST No. 34 The Same Subject Continued (Concerning the General Power of Taxation) From the New York Packet. Friday, January 4, 1788. HAMILTON To the People of the State of New York: I FLATTER myself it has been clearly shown in my last number that the particular States, under the proposed Constitution, would have COEQUAL authority with the Union in the article of revenue, except as to duties on imports. As this leaves open to the States far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control. That the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the State governments to provide. To argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and theory against fact and reality. However proper such reasonings might be to show that a thing OUGHT NOT TO EXIST, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to ANNUL or REPEAL the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their existence. It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. And yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness. In the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. And in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the States will naturally reduce themselves within A VERY NARROW COMPASS; and in the interim, the United States will, in all probability, find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort. To form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a State provision. We shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. In pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. It is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the Union, and to maintain those establishments which, for some time to come, would suffice in time of peace. But would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? If, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? Though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. Observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. The support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic. Admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. A cloud has been for some time hanging over the European world. If it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? No reasonable man would hastily pronounce that we are entirely out of its reach. Or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? Let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. Who could have imagined at the conclusion of the last war that France and Britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? To judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character. What are the chief sources of expense in every government? What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed? The answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense. In the kingdom of Great Britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. If, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. If we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good. But let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. It is true that several of the States, separately, are encumbered with considerable debts, which are an excrescence of the late war. But this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the State governments will continue to experience, will be for the mere support of their respective civil list; to which, if we add all contingencies, the total amount in every State ought to fall considerably short of two hundred thousand pounds. In framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. If this principle be a just one our attention would be directed to a provision in favor of the State governments for an annual sum of about two hundred thousand pounds; while the exigencies of the Union could be susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent of two hundred thousand pounds? To extend its power further, in EXCLUSION of the authority of the Union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them. Suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the Union and its members, in PROPORTION to their comparative necessities; what particular fund could have been selected for the use of the States, that would not either have been too much or too little too little for their present, too much for their future wants? As to the line of separation between external and internal taxes, this would leave to the States, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. If we desert this boundary and content ourselves with leaving to the States an exclusive power of taxing houses and lands, there would still be a great disproportion between the MEANS and the END; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. If any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular States, and would have left them dependent on the Union for a provision for this purpose. The preceding train of observation will justify the position which has been elsewhere laid down, that "A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union." Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities. There remain a few other lights, in which this important subject of taxation will claim a further consideration. PUBLIUS. FEDERALIST No. 35 The Same Subject Continued (Concerning the General Power of Taxation) For the Independent Journal. HAMILTON To the People of the State of New York: BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State. Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale. The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts. So far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections. One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. This argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries. The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community. With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community. Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all. It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society? If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent. There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found. PUBLIUS. FEDERALIST No. 36 The Same Subject Continued (Concerning the General Power of Taxation) From the New York Packet. Tuesday January 8, 1788. HAMILTON To the People of the State of New York: WE HAVE seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views. If it should be objected that we have seen other descriptions of men in the local legislatures, I answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. There are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all; and I trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of State legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive. The subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, What greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? It is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. But I forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency. There is another objection of a somewhat more precise nature that claims our attention. It has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the Union and of the particular States. The supposition of a want of proper knowledge seems to be entirely destitute of foundation. If any question is depending in a State legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? No doubt from the information of the members of the county. Cannot the like knowledge be obtained in the national legislature from the representatives of each State? And is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? Is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry? Nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature. Inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation. The taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the DIRECT and those of the INDIRECT kind. Though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. And indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. The knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. The circumstances that may distinguish its situation in one State from its situation in another must be few, simple, and easy to be comprehended. The principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular State; and there could be no difficulty in ascertaining the revenue system of each. This could always be known from the respective codes of laws, as well as from the information of the members from the several States. The objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. Land taxes are co monly laid in one of two modes, either by ACTUAL valuations, permanent or periodical, or by OCCASIONAL assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. In either case, the EXECUTION of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. All that the law can do must be to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. And what is there in all this that cannot as well be performed by the national legislature as by a State legislature? The attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan. But there is a simple point of view in which this matter may be placed that must be altogether satisfactory. The national legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT STATE. The method of laying and collecting this species of taxes in each State can, in all its parts, be adopted and employed by the federal government. Let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each State, as described in the second section of the first article. An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. The abuse of this power of taxation seems to have been provided against with guarded circumspection. In addition to the precaution just mentioned, there is a provision that "all duties, imposts, and excises shall be UNIFORM throughout the United States." It has been very properly observed by different speakers and writers on the side of the Constitution, that if the exercise of the power of internal taxation by the Union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. By way of answer to this, it has been triumphantly asked, Why not in the first instance omit that ambiguous power, and rely upon the latter resource? Two solid answers may be given. The first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised. The contrary, indeed, appears most probable. The second answer is, that the existence of such a power in the Constitution will have a strong influence in giving efficacy to requisitions. When the States know that the Union can apply itself without their agency, it will be a powerful motive for exertion on their part. As to the interference of the revenue laws of the Union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. The laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. An effectual expedient for this purpose will be, mutually, to abstain from those objects which either side may have first had recourse to. As neither can CONTROL the other, each will have an obvious and sensible interest in this reciprocal forbearance. And where there is an IMMEDIATE common interest, we may safely count upon its operation. When the particular debts of the States are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. A small land tax will answer the purpose of the States, and will be their most simple and most fit resource. Many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain. As to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the Union, which applies to the duties on imports; the other, where the object has not fallen under any State regulation or provision, which may be applicable to a variety of objects. In other cases, the probability is that the United States will either wholly abstain from the objects preoccupied for local purposes, or will make use of the State officers and State regulations for collecting the additional imposition. This will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the State governments and to the people. At all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted to not necessarily result from the plan. As to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. If such a spirit should infest the councils of the Union, the most certain road to the accomplishment of its aim would be to employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments. This would serve to turn the tide of State influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. But all suppositions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. They can answer no other end than to cast a mist over the truth. As to the suggestion of double taxation, the answer is plain. The wants of the Union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the State government. The quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the Union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under State regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. Happy it is when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression! As to poll taxes, I, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those States [1] which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the national government. But does it follow because there is a power to lay them that they will actually be laid? Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. There may exist certain critical and tempestuous conjunctures of the State, in which a poll tax may become an inestimable resource. And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security. I have now gone through the examination of such of the powers proposed to be vested in the United States, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. I have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the Constitution, or of too manifest propriety to admit of controversy. The mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. This has determined me to refer it to the branch of our inquiries upon which we shall next enter. PUBLIUS. FNA1-@1 The New England States. FEDERALIST No. 37 Concerning the Difficulties of the Convention in Devising a Proper Form of Government From the Daily Advertiser. Friday, January 11, 1788. MADISON To the People of the State of New York: IN REVIEWING the defects of the existing Confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. But as the ultimate object of these papers is to determine clearly and fully the merits of this Constitution, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects. That this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests. It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. In placing, however, these different characters on a level, with respect to the weight of their opinions, I wish not to insinuate that there may not be a material difference in the purity of their intentions. It is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. The predetermined adversary, on the other hand, can have been governed by no venial motive whatever. The intentions of the first may be upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be culpable. But the truth is, that these papers are not addressed to persons falling under either of these characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others. With equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention. The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. It has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them. Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. Without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the State administrations. On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand. How far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. From the cursory view here taken, it must clearly appear to have been an arduous part. Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments. Every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. The faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. The most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of the former and the commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted. When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated. Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all. To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller States. We cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. We may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. It is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. There are features in the Constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations. Nor could it have been the large and small States only, which would marshal themselves in opposition to each other on various points. Other combinations, resulting from a difference of local position and policy, must have created additional difficulties. As every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. And although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it. Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution. We had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution. The history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. If, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. In revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. The first is, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. The second conclusion is that all the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments. FEDERALIST No. 38 The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed From the New York Packet. Tuesday, January 15, 1788. MADISON To the People of the State of New York: IT IS not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity. Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by Tullius Hostilius, and to which his address obtained the assent and ratification of the senate and people. This remark is applicable to confederate governments also. Amphictyon, we are told, was the author of that which bore his name. The Achaean league received its first birth from Achaeus, and its second from Aratus. What degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. In some, however, the proceeding was strictly regular. Draco appears to have been intrusted by the people of Athens with indefinite powers to reform its government and laws. And Solon, according to Plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. The proceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens. Whence could it have proceeded, that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? Whence could it have proceeded, that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? These questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. Solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them. Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? This conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the Articles of Confederation. It is observable that among the numerous objections and amendments suggested by the several States, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. And if we except the observations which New Jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of selfpreservation. One State, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. Every candid reader will make the proper reflections on these important facts. A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. They are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. The prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. Might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? And if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one? Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No. Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large State exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in the House of Representatives. From this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the Constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. Whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this executive power in the Executive alone, is the vicious part of the organization. To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the President into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. "We concur fully," reply others, "in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organization arises from the extensive powers already lodged in that department." Even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. The demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the President himself. As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. Were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the Constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers. It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation? Is an indefinite power to raise money dangerous in the hands of the federal government? The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The Confederation gives to Congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men? Congress, a single body of men, are the sole depositary of all the federal powers. Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? The Confederation places them both in the hands of Congress. Is a bill of rights essential to liberty? The Confederation has no bill of rights. Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the laws of the land? The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever. I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of Congress on the State for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union. It is now no longer a point of speculation and hope, that the Western territory is a mine of vast wealth to the United States; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. A very large proportion of this fund has been already surrendered by individual States; and it may with reason be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more: they have proceeded to form new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy. All this has been done; and done without the least color of constitutional authority. Yet no blame has been whispered; no alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for an INDEFINITE PERIOD OF TIME. And yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. Would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the Union against the future powers and resources of a body constructed like the existing Congress, than to save it from the dangers threatened by the present impotency of that Assembly? I mean not, by any thing here said, to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed. PUBLIUS. FEDERALIST No. 39 The Conformity of the Plan to Republican Principles For the Independent Journal. MADISON To the People of the State of New York: THE last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking. The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible. What, then, are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different States, no satisfactory one would ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions. If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. According to the constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them, the chief magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. According to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior. On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of State constitutions The House of Representatives is periodically elective, as in all the States; and for the period of two years, as in the State of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The President is to continue in office for the period of four years; as in New York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. In the other States the election is annual. In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions. Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter. "But it was not sufficient," say the adversaries of the proposed Constitution, "for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States." And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision. Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority. First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced. On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act. That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features. The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government. But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated. If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character. The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national. PUBLIUS. FEDERALIST No. 40 The Powers of the Convention to Form a Mixed Government Examined and Sustained From the New York Packet. Friday, January 18, 1788. MADISON To the People of the State of New York: THE SECOND point to be examined is, whether the convention were authorized to frame and propose this mixed Constitution. The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis, in September, 1786, or to that from Congress, in February, 1787, it will be sufficient to recur to these particular acts. The act from Annapolis recommends the "appointment of commissioners to take into consideration the situation of the United States; to devise SUCH FURTHER PROVISIONS as shall appear to them necessary to render the Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE UNION; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same. "The recommendatory act of Congress is in the words following:"WHEREAS, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation; as a mean to remedy which, several of the States, and PARTICULARLY THE STATE OF NEW YORK, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States A FIRM NATIONAL GOVERNMENT:"Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION. "From these two acts, it appears, 1st, that the object of the convention was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this government was to be such as would be ADEQUATE TO THE EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF CONFEDERATION, as it is expressed in the act of Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the recommendatory act from Annapolis; 4th, that the alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the former and confirmed by the latter. From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation into such form as to accomplish these purposes. There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means. Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part of the definition ought to have been embraced, and which rejected? Which was the more important, which the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved; or that an adequate government should be omitted, and the articles of Confederation preserved. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. But is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no ALTERATIONS or PROVISIONS in THE ARTICLES OF THE CONFEDERATION could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? No stress, it is presumed, will, in this case, be laid on the TITLE; a change of that could never be deemed an exercise of ungranted power. ALTERATIONS in the body of the instrument are expressly authorized. NEW PROVISIONS therein are also expressly authorized. Here then is a power to change the title; to insert new articles; to alter old ones. Must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? Those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a TRANSMUTATION of the government. Will it be said that the alterations ought not to have touched the substance of the Confederation? The States would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some SUBSTANTIAL reform had not been in contemplation. Will it be said that the FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview of the convention, and ought not to have been varied? I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. Do they require that the members of the government should derive their appointment from the legislatures, not from the people of the States? One branch of the new government is to be appointed by these legislatures; and under the Confederation, the delegates to Congress MAY ALL be appointed immediately by the people, and in two States1 are actually so appointed. Do they require that the powers of the government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new government will act on the States in their collective characters. In some instances, also, those of the existing government act immediately on individuals. In cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens. Do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the States? The Confederation itself authorizes a direct tax, to a certain extent, on the post office. The power of coinage has been so construed by Congress as to levy a tribute immediately from that source also. But pretermitting these instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue? Had not Congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the Confederation? Had not every State but one; had not New York herself, so far complied with the plan of Congress as to recognize the PRINCIPLE of the innovation? Do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a MAJORITY of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation. The THIRD point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. In the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a Constitution for the United States. We have seen in what manner they have borne the trial even on that supposition. It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention; and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. This reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. Let us view the ground on which the convention stood. It may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. It could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. They had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity with which the PROPOSITION, made by a single State (Virginia), towards a partial amendment of the Confederation, had been attended to and promoted. They had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW States, convened at Annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen States. They had seen, in a variety of instances, assumptions by Congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,"2 since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. They must have borne in mind, that as the plan to be framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. It might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? Or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve States who USURPED THE POWER of sending deputies to the convention, a body utterly unknown to their constitutions; for Congress, who recommended the appointment of this body, equally unknown to the Confederation; and for the State of New York, in particular, which first urged and then complied with this unauthorized interposition? But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be rejected? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent inquiry, in all cases, ought surely to be, not so much FROM WHOM the advice comes, as whether the advice be GOOD. The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America. How far this character is due to the Constitution, is the subject under investigation. PUBLIUS. Connecticut and Rhode Island. Declaration of Independence. FEDERALIST No. 41 General View of the Powers Conferred by The Constitution For the Independent Journal. MADISON To the People of the State of New York: THE Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches. Under the FIRST view of the subject, two important questions arise: 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States? Is the aggregate power of the general government greater than ought to have been vested in it? This is the FIRST question. It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers. The powers falling within the FIRST class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils. Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form. Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defense. But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in war? The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety. How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. If one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions. The fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII. of France. All Europe has followed, or been forced into, the example. Had the example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except France now to disband its peace establishments, the same event might follow. The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world. Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties. The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat. It was remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of Great Britain have never been able, by real or artificial dangers, to cheat the public into an extensive peace establishment. The distance of the United States from the powerful nations of the world gives them the same happy security. A dangerous establishment can never be necessary or plausible, so long as they continue a united people. But let it never, for a moment, be forgotten that they are indebted for this advantage to the Union alone. The moment of its dissolution will be the date of a new order of things. The fears of the weaker, or the ambition of the stronger States, or Confederacies, will set the same example in the New, as Charles VII. did in the Old World. The example will be followed here from the same motives which produced universal imitation there. Instead of deriving from our situation the precious advantage which Great Britain has derived from hers, the face of America will be but a copy of that of the continent of Europe. It will present liberty everywhere crushed between standing armies and perpetual taxes. The fortunes of disunited America will be even more disastrous than those of Europe. The sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge. In America the miseries springing from her internal jealousies, contentions, and wars, would form a part only of her lot. A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe. This picture of the consequences of disunion cannot be too highly colored, or too often exhibited. Every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the Union of America, and be able to set a due value on the means of preserving it. Next to the effectual establishment of the Union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently added. I will not repeat here the observations which I flatter myself have placed this subject in a just and satisfactory light. But it may not be improper to take notice of an argument against this part of the Constitution, which has been drawn from the policy and practice of Great Britain. It is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the American Constitution has lengthened this critical period to two years. This is the form in which the comparison is usually stated to the public: but is it a just form? Is it a fair comparison? Does the British Constitution restrain the parliamentary discretion to one year? Does the American impose on the Congress appropriations for two years? On the contrary, it cannot be unknown to the authors of the fallacy themselves, that the British Constitution fixes no limit whatever to the discretion of the legislature, and that the American ties down the legislature to two years, as the longest admissible term. Had the argument from the British example been truly stated, it would have stood thus: The term for which supplies may be appropriated to the army establishment, though unlimited by the British Constitution, has nevertheless, in practice, been limited by parliamentary discretion to a single year. Now, if in Great Britain, where the House of Commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the Crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the United States, elected FREELY by the WHOLE BODY of the people, every SECOND YEAR, cannot be safely intrusted with the discretion over such appropriations, expressly limited to the short period of TWO YEARS? A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a Constitution fully adequate to the national defense and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter. The palpable necessity of the power to provide and maintain a navy has protected that part of the Constitution against a spirit of censure, which has spared few other parts. It must, indeed, be numbered among the greatest blessings of America, that as her Union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great Britain. The batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties. The inhabitants of the Atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. If we except perhaps Virginia and Maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the Union ought to feel more anxiety on this subject than New York. Her seacoast is extensive. A very important district of the State is an island. The State itself is penetrated by a large navigable river for more than fifty leagues. The great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. Should a war be the result of the precarious situation of European affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. In the present condition of America, the States more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them. The power of regulating and calling forth the militia has been already sufficiently vindicated and explained. The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. This power, also, has been examined already with much attention, and has, I trust, been clearly shown to be necessary, both in the extent and form given to it by the Constitution. I will address one additional reflection only to those who contend that the power ought to have been restrained to external taxation by which they mean, taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. In a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare. "But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare. " The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation! PUBLIUS. FEDERALIST No. 42 The Powers Conferred by the Constitution Further Considered From the New York Packet. Tuesday, January 22, 1788. MADISON To the People of the State of New York: THE SECOND class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations. This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations. The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the States; and that a power of appointing and receiving "other public ministers and consuls," is expressly and very properly added to the former provision concerning ambassadors. The term ambassador, if taken strictly, as seems to be required by the second of the articles of Confederation, comprehends the highest grade only of public ministers, and excludes the grades which the United States will be most likely to prefer, where foreign embassies may be necessary. And under no latitude of construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice of Congress, to employ the inferior grades of public ministers, and to send and receive consuls. It is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of American consuls into foreign countries may PERHAPS be covered under the authority, given by the ninth article of the Confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the United States. But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been nowhere provided for. A supply of the omission is one of the lesser instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which Congress have been betrayed, or forced by the defects of the Confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new Constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. The power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper. The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren! Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. The powers included in the THIRD class are those which provide for the harmony and proper intercourse among the States. Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and secureties of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads. The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the Constitution has supplied a material omission in the articles of Confederation. The authority of the existing Congress is restrained to the regulation of coin STRUCK by their own authority, or that of the respective States. It must be seen at once that the proposed uniformity in the VALUE of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States. The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. The regulation of weights and measures is transferred from the articles of Confederation, and is founded on like considerations with the preceding power of regulating coin. The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared "that the FREE INHABITANTS of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of FREE CITIZENS in the several States; and THE PEOPLE of each State shall, in every other, enjoy all the privileges of trade and commerce," etc. There is a confusion of language here, which is remarkable. Why the terms FREE INHABITANTS are used in one part of the article, FREE CITIZENS in another, and PEOPLE in another; or what was meant by superadding to "all privileges and immunities of free citizens," "all the privileges of trade and commerce," cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of FREE INHABITANTS of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of FREE CITIZENS of the latter; that is, to greater privileges than they may be entitled to in their own State: so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term "inhabitants" to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States. The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question. The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care. PUBLIUS. FEDERALIST No. 43 The Same Subject Continued (The Powers Conferred by the Constitution Further Considered) For the Independent Journal. MADISON To the People of the State of New York: THE FOURTH class comprises the following miscellaneous powers:1. A power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries. "The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress. 2. "To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislatures of the States in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. "The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated. The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated, by requiring the concurrence of the States concerned, in every such establishment. 3. "To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained. "As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author. 4. "To admit new States into the Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress. "In the articles of Confederation, no provision is found on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States; and the other COLONIES, by which were evidently meant the other British colonies, at the discretion of nine States. The eventual establishment of NEW STATES seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which Congress have been led by it. With great propriety, therefore, has the new system supplied the defect. The general precaution, that no new States shall be formed, without the concurrence of the federal authority, and that of the States concerned, is consonant to the principles which ought to govern such transactions. The particular precaution against the erection of new States, by the partition of a State without its consent, quiets the jealousy of the larger States; as that of the smaller is quieted by a like precaution, against a junction of States without their consent. 5. "To dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with a proviso, that nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. "This is a power of very great importance, and required by considerations similar to those which show the propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public. 6. "To guarantee to every State in the Union a republican form of government; to protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence. "In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be SUBSTANTIALLY maintained. But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution? Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. "As the confederate republic of Germany," says Montesquieu, "consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland. " "Greece was undone," he adds, "as soon as the king of Macedon obtained a seat among the Amphictyons. " In the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. But the authority extends no further than to a GUARANTY of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance. A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature. At first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it. Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure. Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, "that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. "7. "To consider all debts contracted, and engagements entered into, before the adoption of this Constitution, as being no less valid against the United States, under this Constitution, than under the Confederation. "This can only be considered as a declaratory proposition; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations. Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States, as well as against them; and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights. The authors of this discovery may be told, what few others need to be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side, necessarily involves a validity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told, that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would DARE, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned. 8. "To provide for amendments to be ratified by three fourths of the States under two exceptions only. "That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it. 9. "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same. "This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable. Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it? The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other. PUBLIUS. FEDERALIST No. 44 Restrictions on the Authority of the Several States From the New York Packet. Friday, January 25, 1788. MADISON To the People of the State of New York: A FIFTH class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several States:1. "No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver a legal tender in payment of debts; pass any bill of attainder, ex-post-facto law, or law impairing the obligation of contracts; or grant any title of nobility. "The prohibition against treaties, alliances, and confederations makes a part of the existing articles of Union; and for reasons which need no explanation, is copied into the new Constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible. The right of coining money, which is here taken from the States, was left in their hands by the Confederation, as a concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular States could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the general authority. The extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it. In addition to these persuasive considerations, it may be observed, that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. Had every State a right to regulate the value of its coin, there might be as many different currencies as States, and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other States be injured, and animosities be kindled among the States themselves. The subjects of foreign powers might suffer from the same cause, and hence the Union be discredited and embroiled by the indiscretion of a single member. No one of these mischiefs is less incident to a power in the States to emit paper money, than to coin gold or silver. The power to make any thing but gold and silver a tender in payment of debts, is withdrawn from the States, on the same principle with that of issuing a paper currency. Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment. 2. "No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay. "The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion. The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. Of these the first is, the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. "Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper. But have they considered whether a better form could have been substituted? There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper"; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "EXPRESSLY" with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted. Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the PARTICULAR POWERS, which are the means of attaining the OBJECT of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same. Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, NOT NECESSARY OR PROPER, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union. If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed. 2. "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding. "The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors. In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the proposed Constitution. In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members. 3. "The Senators and Representatives, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution. "It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States, in favor of the State constitutions. Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive. The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States. 4. Among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, I pass them over in this. We have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union. The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved. PUBLIUS. FEDERALIST No. 45 The Alleged Danger From the Powers of the Union to the State Governments Considered For the Independent Fournal. MADISON To the People of the State of New York: HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States. The adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular States. But if the Union, as has been shown, be essential to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us. Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale. We have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Achaean league it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. The Lycian Confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities. These cases are the more worthy of our attention, as the external causes by which the component parts were pressed together were much more numerous and powerful than in our case; and consequently less powerful ligaments within would be sufficient to bind the members to the head, and to each other. In the feudal system, we have seen a similar propensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroachments. Had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would at this time consist of as many independent princes as there were formerly feudatory barons. The State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members. The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add, of possibility, and in this view alone, we may pronounce the advantage of the States to be decisive. If the federal government is to have collectors of revenue, the State governments will have theirs also. And as those of the former will be principally on the seacoast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States. Indeed it is extremely probable, that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed with the correspondent authority of the Union. Should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of State officers in the opposite scale. Within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight, whose influence would lie on the side of the State. The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future Congress will have to require them of individual citizens; and the latter will be no more bound than the States themselves have been, to pay the quotas respectively taxed on them. Had the States complied punctually with the articles of Confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion, that the State governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued, would be to say at once, that the existence of the State governments is incompatible with any system whatever that accomplishes the essential purposes of the Union. PUBLIUS. FEDERALIST No. 46 The Influence of the State and Federal Governments Compared From the New York Packet. Tuesday, January 29, 1788. MADISON To the People of the State of New York: RESUMING the subject of the last paper, I proceed to inquire whether the federal government or the State governments will have the advantage with regard to the predilection and support of the people. Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States. I assume this position here as it respects the first, reserving the proofs for another place. The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States. Into the administration of these a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant. And with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline. Experience speaks the same language in this case. The federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly whilst the independent fund of paper emissions was in credit, an activity and importance as great as it can well have in any future circumstances whatever. It was engaged, too, in a course of measures which had for their object the protection of everything that was dear, and the acquisition of everything that could be desirable to the people at large. It was, nevertheless, invariably found, after the transient enthusiasm for the early Congresses was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens. If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered. The remaining points on which I propose to compare the federal and State governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other. It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage. But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States. What is the spirit that has in general characterized the proceedings of Congress? A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular States. I mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued; much less, that its views will be as confined as those of the State legislatures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual States, or the preorgatives of their governments. The motives on the part of the State governments, to augment their prerogatives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members. Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. PUBLIUS. FEDERALIST No. 47 The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts From the New York Packet. Friday, February 1, 1788. MADISON To the People of the State of New York: HAVING reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point. The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR. " Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author. If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring "that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND AMITY. " Her constitution accordingly mixes these departments in several respects. The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The President, who is the head of the executive department, is the presiding member also of the Senate; and, besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department. Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department. The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares "that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. " This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves. I pass over the constitutions of Rhode Island and Connecticut, because they were formed prior to the Revolution, and even before the principle under examination had become an object of political attention. The constitution of New York contains no declaration on this subject; but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. It gives, nevertheless, to the executive magistrate, a partial control over the legislative department; and, what is more, gives a like control to the judiciary department; and even blends the executive and judiciary departments in the exercise of this control. In its council of appointment members of the legislative are associated with the executive authority, in the appointment of officers, both executive and judiciary. And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department. The constitution of New Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary, or surrogate of the State; is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches. The same legislative branch acts again as executive council of the governor, and with him constitutes the Court of Appeals. The members of the judiciary department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other. According to the constitution of Pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates. In conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judiciary as well as executive. The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature; and the executive power of pardoning in certain cases, to be referred to the same department. The members of the executive council are made EX-OFFICIO justices of peace throughout the State. In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others, appointed, three by each of the legislative branches constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges. Throughout the States, it appears that the members of the legislature may at the same time be justices of the peace; in this State, the members of one branch of it are EX-OFFICIO justices of the peace; as are also the members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. All officers may be removed on address of the legislature. Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department. The language of Virginia is still more pointed on this subject. Her constitution declares, "that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly. " Yet we find not only this express exception, with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. The executive prerogative of pardon, also, is in one case vested in the legislative department. The constitution of North Carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department. In South Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the State. In the constitution of Georgia, where it is declared "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other," we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. Even justices of the peace are to be appointed by the legislature. In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper. PUBLIUS. FEDERALIST No. 48 These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other From the New York Packet. Friday, February 1, 1788. MADISON To the People of the State of New York: IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities. The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting "Notes on the State of Virginia," p. 195. "All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, IN MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR. "The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the constitution, was "to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution. " In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances. A great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature. The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution. Executive powers had been usurped. The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. Those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. There are three observations, however, which ought to be made on this head: FIRST, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief; SECONDLY, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; THIRDLY, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands. The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. PUBLIUS. FEDERALIST No. 49 Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention From the New York Packet. Tuesday, February 5, 1788. HAMILTON OR MADISON To the People of the State of New York: THE author of the "Notes on the State of Virginia," quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked. His proposition is, "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or CORRECTING BREACHES OF IT, a convention shall be called for the purpose. "As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance? There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself. In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. But the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numberous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them. It might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government. We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision. PUBLIUS. FEDERALIST No. 50 Periodical Appeals to the People Considered From the New York Packet. Tuesday, February 5, 1788. HAMILTON OR MADISON To the People of the State of New York: IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for ENFORCING the Constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for ALTERING the Constitution itself. In the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge. If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. The scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, "whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other. " This important and novel experiment in politics merits, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as applied to the case under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed. First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the State. Secondly. It appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several other members of the executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period. Thirdly. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same. Fourthly. It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places. Fifthly. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices. PUBLIUS. FEDERALIST No. 51 The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments From the New York Packet. Friday, February 8, 1788. HAMILTON OR MADISON To the People of the State of New York: TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE. PUBLIUS. FEDERALIST No. 52 The House of Representatives From the New York Packet. Friday, February 8, 1788. HAMILTON OR MADISON To the People of the State of New York: FROM the more general inquiries pursued in the four last papers, I pass on to a more particular examination of the several parts of the government. I shall begin with the House of Representatives. The first view to be taken of this part of the government relates to the qualifications of the electors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures. The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution. The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith. The term for which the representatives are to be elected falls under a second view which may be taken of this branch. In order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful. First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. But what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. Let us consult experience, the guide that ought always to be followed whenever it can be found. The scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. And even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. The first to which this character ought to be applied, is the House of Commons in Great Britain. The history of this branch of the English Constitution, anterior to the date of Magna Charta, is too obscure to yield instruction. The very existence of it has been made a question among political antiquaries. The earliest records of subsequent date prove that parliaments were to SIT only every year; not that they were to be ELECTED every year. And even these annual sessions were left so much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions were often contrived by royal ambition. To remedy this grievance, it was provided by a statute in the reign of Charles II. , that the intermissions should not be protracted beyond a period of three years. On the accession of William III., when a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people that parliaments ought to be held FREQUENTLY. By another statute, which passed a few years later in the same reign, the term "frequently," which had alluded to the triennial period settled in the time of Charles II., is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the termination of the former. The last change, from three to seven years, is well known to have been introduced pretty early in the present century, under on alarm for the Hanoverian succession. From these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. And if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents. Elections in Ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince, or some other contingent event. The parliament which commenced with George II. was continued throughout his whole reign, a period of about thirty-five years. The only dependence of the representatives on the people consisted in the right of the latter to supply occasional vacancies by the election of new members, and in the chance of some event which might produce a general new election. The ability also of the Irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. Of late these shackles, if I mistake not, have been broken; and octennial parliaments have besides been established. What effect may be produced by this partial reform, must be left to further experience. The example of Ireland, from this view of it, can throw but little light on the subject. As far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves. Let us bring our inquiries nearer home. The example of these States, when British colonies, claims particular attention, at the same time that it is so well known as to require little to be said on it. The principle of representation, in one branch of the legislature at least, was established in all of them. But the periods of election were different. They varied from one to seven years. Have we any reason to infer, from the spirit and conduct of the representatives of the people, prior to the Revolution, that biennial elections would have been dangerous to the public liberties? The spirit which everywhere displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement This remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent Virginia was the colony which stood first in resisting the parliamentary usurpations of Great Britain; it was the first also in espousing, by public act, the resolution of independence. In Virginia, nevertheless, if I have not been misinformed, elections under the former government were septennial. This particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in SEPTENNIAL elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and I conceive it to be a very substantial proof, that the liberties of the people can be in no danger from BIENNIAL elections. The conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. The first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the British Parliament; and which, with a few exceptions, was exercised by the colonial assemblies and the Irish legislature. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other. PUBLIUS. FEDERALIST No. 53 The Same Subject Continued (The House of Representatives) From the New York Packet. Tuesday, February 12, 1788. HAMILTON OR MADISON To the People of the State of New York: I SHALL here, perhaps, be reminded of a current observation, "that where annual elections end, tyranny begins. " If it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. I need not look for a proof beyond the case before us. What is the reason on which this proverbial observation is founded? No man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power. Happily for mankind, liberty is not, in this respect, confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society. The election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual; and if circumstances may require a deviation from the rule on one side, why not also on the other side? Turning our attention to the periods established among ourselves, for the election of the most numerous branches of the State legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. In Connecticut and Rhode Island, the periods are half-yearly. In the other States, South Carolina excepted, they are annual. In South Carolina they are biennial as is proposed in the federal government. Here is a difference, as four to one, between the longest and shortest periods; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, than South Carolina; or that either the one or the other of these States is distinguished in these respects, and by these causes, from the States whose elections are different from both. In searching for the grounds of this doctrine, I can discover but one, and that is wholly inapplicable to our case. The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legislative provision. They have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. They have in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by the people. An attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone; and has led them to seek for some security to liberty, against the danger to which it is exposed. Where no Constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the United States, was to be attempted. Some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions? The most simple and familiar portion of time, applicable to the subject was that of a year; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. But what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount Constitution? Or who will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government? The second question stated is, whether biennial elections be necessary or useful. The propriety of answering this question in the affirmative will appear from several very obvious considerations. No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. A part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations. Another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. The period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service. The period of legislative service established in most of the States for the more numerous branch is, as we have seen, one year. The question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for State legislation? The very statement of the question, in this form, suggests the answer that ought to be given to it. In a single State, the requisite knowledge relates to the existing laws which are uniform throughout the State, and with which all the citizens are more or less conversant; and to the general affairs of the State, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people. The great theatre of the United States presents a very different scene. The laws are so far from being uniform, that they vary in every State; whilst the public affairs of the Union are spread throughout a very extensive region, and are extremely diversified by t e local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire. Yet some knowledge of the affairs, and even of the laws, of all the States, ought to be possessed by the members from each of the States. How can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulatious of the different States? How can the trade between the different States be duly regulated, without some knowledge of their relative situations in these and other respects? How can taxes be judiciously imposed and effectually collected, if they be not accommodated to the different laws and local circumstances relating to these objects in the different States? How can uniform regulations for the militia be duly provided, without a similar knowledge of many internal circumstances by which the States are distinguished from each other? These are the principal objects of federal legislation, and suggest most forcibly the extensive information which the representatives ought to acquire. The other interior objects will require a proportional degree of information with regard to them. It is true that all these difficulties will, by degrees, be very much diminished. The most laborious task will be the proper inauguration of the government and the primeval formation of a federal code. Improvements on the first draughts will every year become both easier and fewer. Past transactions of the government will be a ready and accurate source of information to new members. The affairs of the Union will become more and more objects of curiosity and conversation among the citizens at large. And the increased intercourse among those of different States will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws. But with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single State, as to justify the longer period of service assigned to those who are to transact it. A branch of knowledge which belongs to the acquirements of a federal representative, and which has not been mentioned is that of foreign affairs. In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government. And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation. Some portion of this knowledge may, no doubt, be acquired in a man's closet; but some of it also can only be derived from the public sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature. There are other considerations, of less importance, perhaps, but which are not unworthy of notice. The distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circumstance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years. No argument can be drawn on this subject, from the case of the delegates to the existing Congress. They are elected annually, it is true; but their re-election is considered by the legislative assemblies almost as a matter of course. The election of the representatives by the people would not be governed by the same principle. A few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. The greater the proportion of new members, and the less the information of the bulk of the members the more apt will they be to fall into the snares that may be laid for them. This remark is no less applicable to the relation which will subsist between the House of Representatives and the Senate. It is an inconvenience mingled with the advantages of our frequent elections even in single States, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. If a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. Hence, a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns. Were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant States. Each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members; and whatever improvements may be suggested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat. All these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people. PUBLIUS. FEDERALIST No. 54 The Apportionment of Members Among the States From the New York Packet. Tuesday, February 12, 1788. HAMILTON OR MADISON To the People of the State of New York: THE next view which I shall take of the House of Representatives relates to the appointment of its members to the several States which is to be determined by the same rule with that of direct taxes. It is not contended that the number of people in each State ought not to be the standard for regulating the proportion of those who are to represent the people of each State. The establishment of the same rule for the appointment of taxes, will probably be as little contested; though the rule itself in this case, is by no means founded on the same principle. In the former case, the rule is understood to refer to the personal rights of the people, with which it has a natural and universal connection. In the latter, it has reference to the proportion of wealth, of which it is in no case a precise measure, and in ordinary cases a very unfit one. But notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the States, it is evidently the least objectionable among the practicable rules, and had too recently obtained the general sanction of America, not to have found a ready preference with the convention. All this is admitted, it will perhaps be said; but does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? Slaves are considered as property, not as persons. They ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. This is the objection, as I understand it, stated in its full force. I shall be equally candid in stating the reasoning which may be offered on the opposite side. "We subscribe to the doctrine," might one of our Southern brethren observe, "that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. But we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. "This question may be placed in another light. It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants, when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted? Could it be reasonably expected, that the Southern States would concur in a system, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light, when advantages were to be conferred? Might not some surprise also be expressed, that those who reproach the Southern States with the barbarous policy of considering as property a part of their human brethren, should themselves contend, that the government to which all the States are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain? "It may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the States possessing them. They neither vote themselves nor increase the votes of their masters. Upon what principle, then, ought they to be taken into the federal estimate of representation? In rejecting them altogether, the Constitution would, in this respect, have followed the very laws which have been appealed to as the proper guide. "This objection is repelled by a single observation. It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate. The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives. In this point of view the Southern States might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular States towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens. A rigorous adherence, however, to this principle, is waived by those who would be gainers by it. All that they ask is that equal moderation be shown on the other side. Let the case of the slaves be considered, as it is in truth, a peculiar one. Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the SLAVE as divested of two fifths of the MAN. "After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defense? We have hitherto proceeded on the idea that representation related to persons only, and not at all to property. But is it a just idea? Government is instituted no less for protection of the property, than of the persons, of individuals. The one as well as the other, therefore, may be considered as represented by those who are charged with the government. Upon this principle it is, that in several of the States, and particularly in the State of New York, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government. In the federal Constitution, this policy does not prevail. The rights of property are committed into the same hands with the personal rights. Some attention ought, therefore, to be paid to property in the choice of those hands. "For another reason, the votes allowed in the federal legislature to the people of each State, ought to bear some proportion to the comparative wealth of the States. States have not, like individuals, an influence over each other, arising from superior advantages of fortune. If the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. A State possesses no such influence over other States. It is not probable that the richest State in the Confederacy will ever influence the choice of a single representative in any other State. Nor will the representatives of the larger and richer States possess any other advantage in the federal legislature, over the representatives of other States, than what may result from their superior number alone. As far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation. The new Constitution is, in this respect, materially different from the existing Confederation, as well as from that of the United Netherlands, and other similar confederacies. In each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. Hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. Under the proposed Constitution, the federal acts will take effect without the necessary intervention of the individual States. They will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller State, or a State more or less wealthy or powerful, will have an equal weight and efficacy: in the same manner as the votes individually given in a State legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes. "Such is the reasoning which an advocate for the Southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet, on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established. In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the States, it is of great importance that the States should feel as little bias as possible, to swell or to reduce the amount of their numbers. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality. PUBLIUS. FEDERALIST No. 55 The Total Number of the House of Representatives From the New York Packet. Friday, February 15, 1788. HAMILTON OR MADISON To the People of the State of New York: THE number of which the House of Representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated. Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed. The charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives. In general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several States is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. Passing over the difference between the smallest and largest States, as Delaware, whose most numerous branch consists of twenty-one representatives, and Massachusetts, where it amounts to between three and four hundred, a very considerable difference is observable among States nearly equal in population. The number of representatives in Pennsylvania is not more than one fifth of that in the State last mentioned. New York, whose population is to that of South Carolina as six to five, has little more than one third of the number of representatives. As great a disparity prevails between the States of Georgia and Delaware or Rhode Island. In Pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. In Rhode Island, they bear a proportion of at least one for every thousand. And according to the constitution of Georgia, the proportion may be carried to one to every ten electors; and must unavoidably far exceed the proportion in any of the other States. Another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode Island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied to the State of Delaware, would reduce the representative assembly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob. It is necessary also to recollect here the observations which were applied to the case of biennial elections. For the same reason that the limited powers of the Congress, and the control of the State legislatures, justify less frequent elections than the public safely might otherwise require, the members of the Congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies. With these general ideas in our mind, let us weigh the objections which have been stated against the number of members proposed for the House of Representatives. It is said, in the first place, that so small a number cannot be safely trusted with so much power. The number of which this branch of the legislature is to consist, at the outset of the government, will be sixtyfive. Within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. It will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred. Estimating the negroes in the proportion of three fifths, it can scarcely be doubted that the population of the United States will by that time, if it does not already, amount to three millions. At the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hundred, and of fifty years, to four hundred. This is a number which, I presume, will put an end to all fears arising from the smallness of the body. I take for granted here what I shall, in answering the fourth objection, hereafter show, that the number of representatives will be augmented from time to time in the manner provided by the Constitution. On a contrary supposition, I should admit the objection to have very great weight indeed. The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the United States? I must own that I could not give a negative answer to this question, without first obliterating every impression which I have received with regard to the present genius of the people of America, the spirit which actuates the State legislatures, and the principles which are incorporated with the political character of every class of citizens I am unable to conceive that the people of America, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery. I am unable to conceive that the State legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents. I am equally unable to conceive that there are at this time, or can be in any short time, in the United States, any sixty-five or a hundred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the solemn trust committed to them. What change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no part of my pretensions. But judging from the circumstances now before us, and from the probable state of them within a moderate period of time, I must pronounce that the liberties of America cannot be unsafe in the number of hands proposed by the federal Constitution. From what quarter can the danger proceed? Are we afraid of foreign gold? If foreign gold could so easily corrupt our federal rulers and enable them to ensnare and betray their constituents, how has it happened that we are at this time a free and independent nation? The Congress which conducted us through the Revolution was a less numerous body than their successors will be; they were not chosen by, nor responsible to, their fellowcitizens at large; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term. They held their consultations always under the veil of secrecy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to be hoped will ever be the case with our future representatives; and from the greatness of the prize at stake, and the eagerness of the party which lost it, it may well be supposed that the use of other means than force would not have been scrupled. Yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny. Is the danger apprehended from the other branches of the federal government? But where are the means to be found by the President, or the Senate, or both? Their emoluments of office, it is to be presumed, will not, and without a previous corruption of the House of Representatives cannot, more than suffice for very different purposes; their private fortunes, as they must allbe American citizens, cannot possibly be sources of danger. The only means, then, which they can possess, will be in the dispensation of appointments. Is it here that suspicion rests her charge? Sometimes we are told that this fund of corruption is to be exhausted by the President in subduing the virtue of the Senate. Now, the fidelity of the other House is to be the victim. The improbability of such a mercenary and perfidious combination of the several members of government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the Constitution has provided a still further safeguard. The members of the Congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. No offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties: and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another. PUBLIUS. FEDERALIST No. 56 The Same Subject Continued (The Total Number of the House of Representatives) From the New York Packet. Tuesday, February 19, 1788. HAMILTON OR MADISON To the People of the State of New York: THE SECOND charge against the House of Representatives is, that it will be too small to possess a due knowledge of the interests of its constituents. As this objection evidently proceeds from a comparison of the proposed number of representatives with the great extent of the United States, the number of their inhabitants, and the diversity of their interests, without taking into view at the same time the circumstances which will distinguish the Congress from other legislative bodies, the best answer that can be given to it will be a brief explanation of these peculiarities. It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority. What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia. A proper regulation of commerce requires much information, as has been elsewhere remarked; but as far as this information relates to the laws and local situation of each individual State, a very few representatives would be very sufficient vehicles of it to the federal councils. Taxation will consist, in a great measure, of duties which will be involved in the regulation of commerce. So far the preceding remark is applicable to this object. As far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the State may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the State? Divide the largest State into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the State, framed by representatives from every part of it, will be almost of themselves a sufficient guide. In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. A skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the States, the more simple objects will be preferred. To be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the State codes, we need only suppose for a moment that this or any other State were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it? The federal councils will derive great advantage from another circumstance. The representatives of each State will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts, but will probably in all cases have been members, and may even at the very time be members, of the State legislature, where all the local information and interests of the State are assembled, and from whence they may easily be conveyed by a very few hands into the legislature of the United States. The observations made on the subject of taxation apply with greater force to the case of the militia. For however different the rules of discipline may be in different States, they are the same throughout each particular State; and depend on circumstances which can differ but little in different parts of the same State. The attentive reader will discern that the reasoning here used, to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. This information, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single State, but of those among different States. Taking each State by itself, its laws are the same, and its interests but little diversified. A few men, therefore, will possess all the knowledge requisite for a proper representation of them. Were the interests and affairs of each individual State perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole State might be competently represented by a single member taken from any part of it. On a comparison of the different States together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. Whilst a few representatives, therefore, from each State, may bring with them a due knowledge of their own State, every representative will have much information to acquire concerning all the other States. The changes of time, as was formerly remarked, on the comparative situation of the different States, will have an assimilating effect. The effect of time on the internal affairs of the States, taken singly, will be just the contrary. At present some of the States are little more than a society of husbandmen. Few of them have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. These, however, will in all of them be the fruits of a more advanced population, and will require, on the part of each State, a fuller representation. The foresight of the convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government. The experience of Great Britain, which presents to mankind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these inquiries, corroborates the result of the reflections which we have just made. The number of inhabitants in the two kingdoms of England and Scotland cannot be stated at less than eight millions. The representatives of these eight millions in the House of Commons amount to five hundred and fifty-eight. Of this number, one ninth are elected by three hundred and sixty-four persons, and one half, by five thousand seven hundred and twenty-three persons. 1 It cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add any thing either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. On the contrary, it is notorious, that they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. They might therefore, with great propriety, be considered as something more than a mere deduction from the real representatives of the nation. We will, however, consider them in this light alone, and will not extend the deduction to a considerable number of others, who do not reside among their constitutents, are very faintly connected with them, and have very little particular knowledge of their affairs. With all these concessions, two hundred and seventy-nine persons only will be the depository of the safety, interest, and happiness of eight millions that is to say, there will be one representative only to maintain the rights and explain the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED AND SEVENTY constitutents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. Yet it is very certain, not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the British code are chargeable, in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. Allowing to this case the weight which is due to it, and comparing it with that of the House of Representatives as above explained it seems to give the fullest assurance, that a representative for every THIRTY THOUSAND INHABITANTS will render the latter both a safe and competent guardian of the interests which will be confided to it. PUBLIUS. Burgh's "Political Disquisitions. " FEDERALIST No. 57 The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation From the New York Packet. Tuesday, February 19, 1788. HAMILTON OR MADISON To the People of the State of New York: THE THIRD charge against the House of Representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few. Of all the objections which have been framed against the federal Constitution, this is perhaps the most extraordinary. Whilst the objection itself is levelled against a pretended oligarchy, the principle of it strikes at the very root of republican government. The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people. Let me now ask what circumstance there is in the constitution of the House of Representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? Let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens? Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people. If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents. In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements. In the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns. Ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life. But the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment. In the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people. All these securities, however, would be found very insufficient without the restraint of frequent elections. Hence, in the fourth place, the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty. Such will be the relation between the House of Representatives and their constituents. Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise? Are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the people? Are they not the identical means on which every State government in the Union relies for the attainment of these important ends? What then are we to understand by the objection which this paper has combated? What are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them? Were the objection to be read by one who had not seen the mode prescribed by the Constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the State constitutions was in some respect or other, very grossly departed from. We have seen how far such a supposition would err, as to the two first points. Nor would it, in fact, be less erroneous as to the last. The only difference discoverable between the two cases is, that each representative of the United States will be elected by five or six thousand citizens; whilst in the individual States, the election of a representative is left to about as many hundreds. Will it be pretended that this difference is sufficient to justify an attachment to the State governments, and an abhorrence to the federal government? If this be the point on which the objection turns, it deserves to be examined. Is it supported by REASON? This cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. Reason, on the contrary, assures us, that as in so great a number a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the ambitious or the bribes of the rich. Is the CONSEQUENCE from this doctrine admissible? If we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the government does not require as many of them as will amount to one for that number of citizens? Is the doctrine warranted by FACTS? It was shown in the last paper, that the real representation in the British House of Commons very little exceeds the proportion of one for every thirty thousand inhabitants. Besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. To this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money. Notwithstanding these unfavorable circumstances, and notwithstanding some very unequal laws in the British code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many. But we need not resort to foreign experience on this subject. Our own is explicit and decisive. The districts in New Hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for her representatives in the Congress. Those of Massachusetts are larger than will be necessary for that purpose; and those of New York still more so. In the last State the members of Assembly for the cities and counties of New York and Albany are elected by very nearly as many voters as will be entitled to a representative in the Congress, calculating on the number of sixty-five representatives only. It makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. If the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. Pennsylvania is an additional example. Some of her counties, which elect her State representatives, are almost as large as her districts will be by which her federal representatives will be elected. The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms, however, but one county, in which every elector votes for each of its representatives in the State legislature. And what may appear to be still more directly to our purpose, the whole city actually elects a SINGLE MEMBER for the executive council. This is the case in all the other counties of the State. Are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? Has it appeared on trial that the senators of New Hampshire, Massachusetts, and New York, or the executive council of Pennsylvania, or the members of the Assembly in the two last States, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other States by very small divisions of the people? But there are cases of a stronger complexion than any which I have yet quoted. One branch of the legislature of Connecticut is so constituted that each member of it is elected by the whole State. So is the governor of that State, of Massachusetts, and of this State, and the president of New Hampshire. I leave every man to decide whether the result of any one of these experiments can be said to countenance a suspicion, that a diffusive mode of choosing representatives of the people tends to elevate traitors and to undermine the public liberty. PUBLIUS. FEDERALIST No. 58 Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered MADISON To the People of the State of New York: THE remaining charge against the House of Representatives, which I am to examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand. It has been admitted, that this objection, if well supported, would have great weight. The following observations will show that, like most other objections against the Constitution, it can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld. 1. Those who urge the objection seem not to have recollected that the federal Constitution will not suffer by a comparison with the State constitutions, in the security provided for a gradual augmentation of the number of representatives. The number which is to prevail in the first instance is declared to be temporary. Its duration is limited to the short term of three years. Within every successive term of ten years a census of inhabitants is to be repeated. The unequivocal objects of these regulations are, first, to readjust, from time to time, the apportionment of representatives to the number of inhabitants, under the single exception that each State shall have one representative at least; secondly, to augment the number of representatives at the same periods, under the sole limitation that the whole number shall not exceed one for every thirty thousand inhabitants. If we review the constitutions of the several States, we shall find that some of them contain no determinate regulations on this subject, that others correspond pretty much on this point with the federal Constitution, and that the most effectual security in any of them is resolvable into a mere directory provision. 2. As far as experience has taken place on this subject, a gradual increase of representatives under the State constitutions has at least kept pace with that of the constituents, and it appears that the former have been as ready to concur in such measures as the latter have been to call for them. 3. There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States: in the former, consequently, the larger States will have most weight; in the latter, the advantage will be in favor of the smaller States. From this circumstance it may with certainty be inferred that the larger States will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. And it so happens that four only of the largest will have a majority of the whole votes in the House of Representatives. Should the representatives or people, therefore, of the smaller States oppose at any time a reasonable addition of members, a coalition of a very few States will be sufficient to overrule the opposition; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the Constitution. It may be alleged, perhaps, that the Senate would be prompted by like motives to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. This is the difficulty which has probably created the most serious apprehensions in the jealous friends of a numerous representation. Fortunately it is among the difficulties which, existing only in appearance, vanish on a close and accurate inspection. The following reflections will, if I mistake not, be admitted to be conclusive and satisfactory on this point. Notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the House, composed of the greater number of members, when supported by the more powerful States, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses. This advantage must be increased by the consciousness, felt by the same side of being supported in its demands by right, by reason, and by the Constitution; and the consciousness, on the opposite side, of contending against the force of all these solemn considerations. It is farther to be considered, that in the gradation between the smallest and largest States, there are several, which, though most likely in general to arrange themselves among the former are too little removed in extent and population from the latter, to second an opposition to their just and legitimate pretensions. Hence it is by no means certain that a majority of votes, even in the Senate, would be unfriendly to proper augmentations in the number of representatives. It will not be looking too far to add, that the senators from all the new States may be gained over to the just views of the House of Representatives, by an expedient too obvious to be overlooked. As these States will, for a great length of time, advance in population with peculiar rapidity, they will be interested in frequent reapportionments of the representatives to the number of inhabitants. The large States, therefore, who will prevail in the House of Representatives, will have nothing to do but to make reapportionments and augmentations mutually conditions of each other; and the senators from all the most growing States will be bound to contend for the latter, by the interest which their States will feel in the former. These considerations seem to afford ample security on this subject, and ought alone to satisfy all the doubts and fears which have been indulged with regard to it. Admitting, however, that they should all be insufficient to subdue the unjust policy of the smaller States, or their predominant influence in the councils of the Senate, a constitutional and infallible resource still remains with the larger States, by which they will be able at all times to accomplish their just purposes. The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. But will not the House of Representatives be as much interested as the Senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the Senate? Or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. Those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. To those causes we are to ascribe the continual triumph of the British House of Commons over the other branches of the government, whenever the engine of a money bill has been employed. An absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. The utmost degree of firmness that can be displayed by the federal Senate or President, will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles. In this review of the Constitution of the House of Representatives, I have passed over the circumstances of economy, which, in the present state of affairs, might have had some effect in lessening the temporary number of representatives, and a disregard of which would probably have been as rich a theme of declamation against the Constitution as has been shown by the smallness of the number proposed. I omit also any remarks on the difficulty which might be found, under present circumstances, in engaging in the federal service a large number of such characters as the people will probably elect. One observation, however, I must be permitted to add on this subject as claiming, in my judgment, a very serious attention. It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. Now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand. On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed. As connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us. PUBLIUS. FEDERALIST No. 59 Concerning the Power of Congress to Regulate the Election of Members From the New York Packet. Friday, February 22, 1788. HAMILTON To the People of the State of New York: THE natural order of the subject leads us to consider, in this place, that provision of the Constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. It is in these words: "The TIMES, PLACES, and MANNER of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter SUCH REGULATIONS, except as to the PLACES of choosing senators. "1 This provision has not only been declaimed against by those who condemn the Constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system. I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. Its propriety rests upon the evidence of this plain proposition, that EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every just reasoner will, at first sight, approve an adherence to this rule, in the work of the convention; and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. Even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to regret a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the seed of future weakness, and perhaps anarchy. It will not be alleged, that an election law could have been framed and inserted in the Constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied, that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been preferred by the convention. They have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. Nothing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose to say, that a neglect or omission of this kind would not be likely to take place. The constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. Nor has any satisfactory reason been yet assigned for incurring that risk. The extravagant surmises of a distempered jealousy can never be dignified with that character. If we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the general government. And as it is more consonant to the rules of a just theory, to trust the Union with the care of its own existence, than to transfer that care to any other hands, if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where it would unnaturally be placed. Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? The violation of principle, in this case, would have required no comment; and, to an unbiased observer, it will not be less apparent in the project of subjecting the existence of the national government, in a similar respect, to the pleasure of the State governments. An impartial view of the matter cannot fail to result in a conviction, that each, as far as possible, ought to depend on itself for its own preservation. As an objection to this position, it may be remarked that the constitution of the national Senate would involve, in its full extent, the danger which it is suggested might flow from an exclusive power in the State legislatures to regulate the federal elections. It may be alleged, that by declining the appointment of Senators, they might at any time give a fatal blow to the Union; and from this it may be inferred, that as its existence would be thus rendered dependent upon them in so essential a point, there can be no objection to intrusting them with it in the particular case under consideration. The interest of each State, it may be added, to maintain its representation in the national councils, would be a complete security against an abuse of the trust. This argument, though specious, will not, upon examination, be found solid. It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government. But it will not follow that, because they have a power to do this in one instance, they ought to have it in every other. There are cases in which the pernicious tendency of such a power may be far more decisive, without any motive equally cogent with that which must have regulated the conduct of the convention in respect to the formation of the Senate, to recommend their admission into the system. So far as that construction may expose the Union to the possibility of injury from the State legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the national government. If this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision. But however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites. It may be easily discerned also that the national government would run a much greater risk from a power in the State legislatures over the elections of its House of Representatives, than from their power of appointing the members of its Senate. The senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated and replenished every two years; and no State is to be entitled to more than two senators; a quorum of the body is to consist of sixteen members. The joint result of these circumstances would be, that a temporary combination of a few States to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body; and it is not from a general and permanent combination of the States that we can have any thing to fear. The first might proceed from sinister designs in the leading members of a few of the State legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people, which will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general government to the advancement of their happiness in which event no good citizen could desire its continuance. But with regard to the federal House of Representatives, there is intended to be a general election of members once in two years. If the State legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the Union, if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election. I shall not deny, that there is a degree of weight in the observation, that the interests of each State, to be represented in the federal councils, will be a security against the abuse of a power over its elections in the hands of the State legislatures. But the security will not be considered as complete, by those who attend to the force of an obvious distinction between the interest of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices. The people of America may be warmly attached to the government of the Union, at times when the particular rulers of particular States, stimulated by the natural rivalship of power, and by the hopes of personal aggrandizement, and supported by a strong faction in each of those States, may be in a very opposite temper. This diversity of sentiment between a majority of the people, and the individuals who have the greatest credit in their councils, is exemplified in some of the States at the present moment, on the present question. The scheme of separate confederacies, which will always multiply the chances of ambition, will be a never failing bait to all such influential characters in the State administrations as are capable of preferring their own emolument and advancement to the public weal. With so effectual a weapon in their hands as the exclusive power of regulating elections for the national government, a combination of a few such men, in a few of the most considerable States, where the temptation will always be the strongest, might accomplish the destruction of the Union, by seizing the opportunity of some casual dissatisfaction among the people (and which perhaps they may themselves have excited), to discontinue the choice of members for the federal House of Representatives. It ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them. Its preservation, therefore ought in no case that can be avoided, to be committed to the guardianship of any but those whose situation will uniformly beget an immediate interest in the faithful and vigilant performance of the trust. PUBLIUS. Ist clause, 4th section, of the Ist article. FEDERALIST No. 60 The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members) From the New York Packet. Tuesday, February 26, 1788. HAMILTON To the People of the State of New York: WE HAVE seen, that an uncontrollable power over the elections to the federal government could not, without hazard, be committed to the State legislatures. Let us now see, what would be the danger on the other side; that is, from confiding the ultimate right of regulating its own elections to the Union itself. It is not pretended, that this right would ever be used for the exclusion of any State from its share in the representation. The interest of all would, in this respect at least, be the security of all. But it is alleged, that it might be employed in such a manner as to promote the election of some favorite class of men in exclusion of others, by confining the places of election to particular districts, and rendering it impracticable to the citizens at large to partake in the choice. Of all chimerical suppositions, this seems to be the most chimerical. On the one hand, no rational calculation of probabilities would lead us to imagine that the disposition which a conduct so violent and extraordinary would imply, could ever find its way into the national councils; and on the other, it may be concluded with certainty, that if so improper a spirit should ever gain admittance into them, it would display itself in a form altogether different and far more decisive. The improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the State governments. It is not difficult to conceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated, in respect to a particular class of citizens, by a victorious and overbearing majority; but that so fundamental a privilege, in a country so situated and enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible. In addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. The dissimilarity in the ingredients which will compose the national government, and still more in the manner in which they will be brought into action in its various branches, must form a powerful obstacle to a concert of views in any partial scheme of elections. There is sufficient diversity in the state of property, in the genius, manners, and habits of the people of the different parts of the Union, to occasion a material diversity of disposition in their representatives towards the different ranks and conditions in society. And though an intimate intercourse under the same government will promote a gradual assimilation in some of these respects, yet there are causes, as well physical as moral, which may, in a greater or less degree, permanently nourish different propensities and inclinations in this respect. But the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors. As to the Senate, it is impossible that any regulation of "time and manner," which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. The collective sense of the State legislatures can never be influenced by extraneous circumstances of that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. For what inducement could the Senate have to concur in a preference in which itself would not be included? Or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other? The composition of the one would in this case counteract that of the other. And we can never suppose that it would embrace the appointments to the Senate, unless we can at the same time suppose the voluntary co-operation of the State legislatures. If we make the latter supposition, it then becomes immaterial where the power in question is placed whether in their hands or in those of the Union. But what is to be the object of this capricious partiality in the national councils? Is it to be exercised in a discrimination between the different departments of industry, or between the different kinds of property, or between the different degrees of property? Will it lean in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest? Or, to speak in the fashionable language of the adversaries to the Constitution, will it court the elevation of "the wealthy and the well-born," to the exclusion and debasement of all the rest of the society? If this partiality is to be exerted in favor of those who are concerned in any particular description of industry or property, I presume it will readily be admitted, that the competition for it will lie between landed men and merchants. And I scruple not to affirm, that it is infinitely less likely that either of them should gain an ascendant in the national councils, than that the one or the other of them should predominate in all the local councils. The inference will be, that a conduct tending to give an undue preference to either is much less to be dreaded from the former than from the latter. The several States are in various degrees addicted to agriculture and commerce. In most, if not all of them, agriculture is predominant. In a few of them, however, commerce nearly divides its empire, and in most of them has a considerable share of influence. In proportion as either prevails, it will be conveyed into the national representation; and for the very reason, that this will be an emanation from a greater variety of interests, and in much more various proportions, than are to be found in any single State, it will be much less apt to espouse either of them with a decided partiality, than the representation of any single State. In a country consisting chiefly of the cultivators of land, where the rules of an equal representation obtain, the landed interest must, upon the whole, preponderate in the government. As long as this interest prevails in most of the State legislatures, so long it must maintain a correspondent superiority in the national Senate, which will generally be a faithful copy of the majorities of those assemblies. It cannot therefore be presumed, that a sacrifice of the landed to the mercantile class will ever be a favorite object of this branch of the federal legislature. In applying thus particularly to the Senate a general observation suggested by the situation of the country, I am governed by the consideration, that the credulous votaries of State power cannot, upon their own principles, suspect, that the State legislatures would be warped from their duty by any external influence. But in reality the same situation must have the same effect, in the primative composition at least of the federal House of Representatives: an improper bias towards the mercantile class is as little to be expected from this quarter as from the other. In order, perhaps, to give countenance to the objection at any rate, it may be asked, is there not danger of an opposite bias in the national government, which may dispose it to endeavor to secure a monopoly of the federal administration to the landed class? As there is little likelihood that the supposition of such a bias will have any terrors for those who would be immediately injured by it, a labored answer to this question will be dispensed with. It will be sufficient to remark, first, that for the reasons elsewhere assigned, it is less likely that any decided partiality should prevail in the councils of the Union than in those of any of its members. Secondly, that there would be no temptation to violate the Constitution in favor of the landed class, because that class would, in the natural course of things, enjoy as great a preponderancy as itself could desire. And thirdly, that men accustomed to investigate the sources of public prosperity upon a large scale, must be too well convinced of the utility of commerce, to be inclined to inflict upon it so deep a wound as would result from the entire exclusion of those who would best understand its interest from a share in the management of them. The importance of commerce, in the view of revenue alone, must effectually guard it against the enmity of a body which would be continually importuned in its favor, by the urgent calls of public necessity. I the rather consult brevity in discussing the probability of a preference founded upon a discrimination between the different kinds of industry and property, because, as far as I understand the meaning of the objectors, they contemplate a discrimination of another kind. They appear to have in view, as the objects of the preference with which they endeavor to alarm us, those whom they designate by the description of "the wealthy and the well-born." These, it seems, are to be exalted to an odious pre-eminence over the rest of their fellow-citizens. At one time, however, their elevation is to be a necessary consequence of the smallness of the representative body; at another time it is to be effected by depriving the people at large of the opportunity of exercising their right of suffrage in the choice of that body. But upon what principle is the discrimination of the places of election to be made, in order to answer the purpose of the meditated preference? Are "the wealthy and the well-born," as they are called, confined to particular spots in the several States? Have they, by some miraculous instinct or foresight, set apart in each of them a common place of residence? Are they only to be met with in the towns or cities? Or are they, on the contrary, scattered over the face of the country as avarice or chance may have happened to cast their own lot or that of their predecessors? If the latter is the case, (as every intelligent man knows it to be,1) is it not evident that the policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptionable on every other account? The truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature. Let it, however, be admitted, for argument sake, that the expedient suggested might be successful; and let it at the same time be equally taken for granted that all the scruples which a sense of duty or an apprehension of the danger of the experiment might inspire, were overcome in the breasts of the national rulers, still I imagine it will hardly be pretended that they could ever hope to carry such an enterprise into execution without the aid of a military force sufficient to subdue the resistance of the great body of the people. The improbability of the existence of a force equal to that object has been discussed and demonstrated in different parts of these papers; but that the futility of the objection under consideration may appear in the strongest light, it shall be conceded for a moment that such a force might exist, and the national government shall be supposed to be in the actual possession of it. What will be the conclusion? With a disposition to invade the essential rights of the community, and with the means of gratifying that disposition, is it presumable that the persons who were actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favorite class of men? Would they not be likely to prefer a conduct better adapted to their own immediate aggrandizement? Would they not rather boldly resolve to perpetuate themselves in office by one decisive act of usurpation, than to trust to precarious expedients which, in spite of all the precautions that might accompany them, might terminate in the dismission, disgrace, and ruin of their authors? Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective States to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people? PUBLIUS. 1 Particularly in the Southern States and in this State. FEDERALIST No. 61 The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members) From the New York Packet. Tuesday, February 26, 1788. HAMILTON To the People of the State of New York: THE more candid opposers of the provision respecting elections, contained in the plan of the convention, when pressed in argument, will sometimes concede the propriety of that provision; with this qualification, however, that it ought to have been accompanied with a declaration, that all elections should be had in the counties where the electors resided. This, say they, was a necessary precaution against an abuse of the power. A declaration of this nature would certainly have been harmless; so far as it would have had the effect of quieting apprehensions, it might not have been undesirable. But it would, in fact, have afforded little or no additional security against the danger apprehended; and the want of it will never be considered, by an impartial and judicious examiner, as a serious, still less as an insuperable, objection to the plan. The different views taken of the subject in the two preceding papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination, at least, will be guiltless of the sacrifice. If those who are inclined to consult their jealousy only, would exercise it in a careful inspection of the several State constitutions, they would find little less room for disquietude and alarm, from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. A review of their situation, in this particular, would tend greatly to remove any ill impressions which may remain in regard to this matter. But as that view would lead into long and tedious details, I shall content myself with the single example of the State in which I write. The constitution of New York makes no other provision for LOCALITY of elections, than that the members of the Assembly shall be elected in the COUNTIES; those of the Senate, in the great districts into which the State is or may be divided: these at present are four in number, and comprehend each from two to six counties. It may readily be perceived that it would not be more difficult to the legislature of New York to defeat the suffrages of the citizens of New York, by confining elections to particular places, than for the legislature of the United States to defeat the suffrages of the citizens of the Union, by the like expedient. Suppose, for instance, the city of Albany was to be appointed the sole place of election for the county and district of which it is a part, would not the inhabitants of that city speedily become the only electors of the members both of the Senate and Assembly for that county and district? Can we imagine that the electors who reside in the remote subdivisions of the counties of Albany, Saratoga, Cambridge, etc., or in any part of the county of Montgomery, would take the trouble to come to the city of Albany, to give their votes for members of the Assembly or Senate, sooner than they would repair to the city of New York, to participate in the choice of the members of the federal House of Representatives? The alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws, which afford every facility to it, furnishes a ready answer to this question. And, abstracted from any experience on the subject, we can be at no loss to determine, that when the place of election is at an INCONVENIENT DISTANCE from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles. Hence it must appear, that objections to the particular modification of the federal power of regulating elections will, in substance, apply with equal force to the modification of the like power in the constitution of this State; and for this reason it will be impossible to acquit the one, and to condemn the other. A similar comparison would lead to the same conclusion in respect to the constitutions of most of the other States. If it should be said that defects in the State constitutions furnish no apology for those which are to be found in the plan proposed, I answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. To those who are disposed to consider, as innocent omissions in the State constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single State should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the United States? If they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. And in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single State should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen States, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests. Hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. But there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: I allude to the circumstance of uniformity in the time of elections for the federal House of Representatives. It is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. If each State may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. The times of election in the several States, as they are now established for local purposes, vary between extremes as wide as March and November. The consequence of this diversity would be that there could never happen a total dissolution or renovation of the body at one time. If an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. The mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. There is a contagion in example which few men have sufficient force of mind to resist. I am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations. Uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the Senate, and for conveniently assembling the legislature at a stated period in each year. It may be asked, Why, then, could not a time have been fixed in the Constitution? As the most zealous adversaries of the plan of the convention in this State are, in general, not less zealous admirers of the constitution of the State, the question may be retorted, and it may be asked, Why was not a time for the like purpose fixed in the constitution of this State? No better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. The same answer may be given to the question put on the other side. And it may be added that the supposed danger of a gradual change being merely speculative, it would have been hardly advisable upon that speculation to establish, as a fundamental point, what would deprive several States of the convenience of having the elections for their own governments and for the national government at the same epochs. PUBLIUS. FEDERALIST No. 62 The Senate For the Independent Journal. HAMILTON OR MADISON To the People of the State of New York: HAVING examined the constitution of the House of Representatives, and answered such of the objections against it as seemed to merit notice, I enter next on the examination of the Senate. The heads into which this member of the government may be considered are: I. The qualification of senators; II. The appointment of them by the State legislatures; III. The equality of representation in the Senate; IV. The number of senators, and the term for which they are to be elected; V. The powers vested in the Senate. I. The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils. II. It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems. III. The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but "of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable." A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice. In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic. Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation. IV. The number of senators, and the duration of their appointment, come next to be considered. In order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution. First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government. Secondly. The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration. Thirdly. Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate? A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first. Fourthly. The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions. To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others. In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs. The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed? Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY. In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy. But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability. PUBLIUS. FEDERALIST. No. 63 The Senate Continued For the Independent Journal. HAMILTON OR MADISON To the People of the State of New York: A FIFTH desideratum, illustrating the utility of a senate, is the want of a due sense of national character. Without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence. An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind? Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. It can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community. The half-yearly representatives of Rhode Island would probably have been little affected in their deliberations on the iniquitous measures of that State, by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister States; whilst it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now laboring. I add, as a SIXTH defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important. Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the SHARE of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a NUMEROUS body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents. The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects. Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only as they relate to the representatives of the people. To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next. It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them. It adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a senate. Sparta, Rome, and Carthage are, in fact, the only states to whom that character can be applied. In each of the two first there was a senate for life. The constitution of the senate in the last is less known. Circumstantial evidence makes it probable that it was not different in this particular from the two others. It is at least certain, that it had some quality or other which rendered it an anchor against popular fluctuations; and that a smaller council, drawn out of the senate, was appointed not only for life, but filled up vacancies itself. These examples, though as unfit for the imitation, as they are repugnant to the genius, of America, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty. I am not unaware of the circumstances which distinguish the American from other popular governments, as well ancient as modern; and which render extreme circumspection necessary, in reasoning from the one case to the other. But after allowing due weight to this consideration, it may still be maintained, that there are many points of similitude which render these examples not unworthy of our attention. Many of the defects, as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people, and to the people themselves. There are others peculiar to the former, which require the control of such an institution. The people can never wilfully betray their own interests; but they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act. The difference most relied on, between the American and other republics, consists in the principle of representation; which is the pivot on which the former move, and which is supposed to have been unknown to the latter, or at least to the ancient part of them. The use which has been made of this difference, in reasonings contained in former papers, will have shown that I am disposed neither to deny its existence nor to undervalue its importance. I feel the less restraint, therefore, in observing, that the position concerning the ignorance of the ancient governments on the subject of representation, is by no means precisely true in the latitude commonly given to it. Without entering into a disquisition which here would be misplaced, I will refer to a few known facts, in support of what I advance. In the most pure democracies of Greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and REPRESENTING the people in their EXECUTIVE capacity. Prior to the reform of Solon, Athens was governed by nine Archons, annually ELECTED BY THE PEOPLE AT LARGE. The degree of power delegated to them seems to be left in great obscurity. Subsequent to that period, we find an assembly, first of four, and afterwards of six hundred members, annually ELECTED BY THE PEOPLE; and PARTIALLY representing them in their LEGISLATIVE capacity, since they were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people. The senate of Carthage, also, whatever might be its power, or the duration of its appointment, appears to have been ELECTIVE by the suffrages of the people. Similar instances might be traced in most, if not all the popular governments of antiquity. Lastly, in Sparta we meet with the Ephori, and in Rome with the Tribunes; two bodies, small indeed in numbers, but annually ELECTED BY THE WHOLE BODY OF THE PEOPLE, and considered as the REPRESENTATIVES of the people, almost in their PLENIPOTENTIARY capacity. The Cosmi of Crete were also annually ELECTED BY THE PEOPLE, and have been considered by some authors as an institution analogous to those of Sparta and Rome, with this difference only, that in the election of that representative body the right of suffrage was communicated to a part only of the people. From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The true distinction between these and the American governments, lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share in the LATTER, and not in the TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the administration of the FORMER. The distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the United States. But to insure to this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory. For it cannot be believed, that any form of representative government could have succeeded within the narrow limits occupied by the democracies of Greece. In answer to all these arguments, suggested by reason, illustrated by examples, and enforced by our own experience, the jealous adversary of the Constitution will probably content himself with repeating, that a senate appointed not immediately by the people, and for the term of six years, must gradually acquire a dangerous pre-eminence in the government, and finally transform it into a tyrannical aristocracy. To this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the United States. But a more particular reply may be given. Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions? If reason condemns the suspicion, the same sentence is pronounced by experience. The constitution of Maryland furnishes the most apposite example. The Senate of that State is elected, as the federal Senate will be, indirectly by the people, and for a term less by one year only than the federal Senate. It is distinguished, also, by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and, at the same time, is not under the control of any such rotation as is provided for the federal Senate. There are some other lesser distinctions, which would expose the former to colorable objections, that do not lie against the latter. If the federal Senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the Senate of Maryland, but no such symptoms have appeared. On the contrary, the jealousies at first entertained by men of the same description with those who view with terror the correspondent part of the federal Constitution, have been gradually extinguished by the progress of the experiment; and the Maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any State in the Union. But if any thing could silence the jealousies on this subject, it ought to be the British example. The Senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The House of Representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. Here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the United States. Unfortunately, however, for the anti-federal argument, the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch. As far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed. In Sparta, the Ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it. The fact is the more remarkable, as unanimity was required in every act of the Tribunes, even after their number was augmented to ten. It proves the irresistible force possessed by that branch of a free government, which has the people on its side. To these examples might be added that of Carthage, whose senate, according to the testimony of Polybius, instead of drawing all power into its vortex, had, at the commencement of the second Punic War, lost almost the whole of its original portion. Besides the conclusive evidence resulting from this assemblage of facts, that the federal Senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body, we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the House of Representatives, with the people on their side, will at all times be able to bring back the Constitution to its primitive form and principles. Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves. PUBLIUS. FEDERALIST No. 64 The Powers of the Senate From the New York Packet. Friday, March 7, 1788. JAY To the People of the State of New York: IT IS a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. Unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed Constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it. The second section gives power to the President, "BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR." The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors. As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. The Constitution manifests very particular attention to this object. By excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle. If the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. The inference which naturally results from these considerations is this, that the President and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several States or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. With such men the power of making treaties may be safely lodged. Although the absolute necessity of system, in the conduct of any business, is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind. They who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information, and often much time, are necessary to concert and to execute. It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a a system for the management of them. The duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country. Nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information will be preserved. There are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued; and that both our treaties and our laws should correspond with and be made to promote it. It is of much consequence that this correspondence and conformity be carefully maintained; and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the Senate necessary both to treaties and to laws. It seldom happens in the negotiation of treaties, of whatever nature, but that perfect SECRECY and immediate DESPATCH are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest. They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other. But to this plan, as to most others that have ever appeared, objections are contrived and urged. Some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected. Others, though content that treaties should be made in the mode proposed, are averse to their being the SUPREME laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government. However useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. From this cause, probably, proceed the fears and apprehensions of some, that the President and Senate may make treaties without an equal eye to the interests of all the States. Others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties? As all the States are equally represented in the Senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance. In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be in the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter. As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations. With respect to their responsibility, it is difficult to conceive how it could be increased. Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments. PUBLIUS. FEDERALIST No. 65 The Powers of the Senate Continued From the New York Packet. Friday, March 7, 1788. HAMILTON To the People of the State of New York: THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate. A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny. The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it. What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded? Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS? Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons. These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt? Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded. Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men. But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious. PUBLIUS. FEDERALIST No. 66 Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered From the New York Packet. Tuesday, March 11, 1788. HAMILTON To the People of the State of New York: A REVIEW of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter. The FIRST of these objections is, that the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and wellestablished maxim which requires a separation between the different departments of power. The true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. This partial intermixture is even, in some cases, not only proper but necessary to the mutual defense of the several members of the government against each other. An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire. It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this State; while that constitution makes the Senate, together with the chancellor and judges of the Supreme Court, not only a court of impeachments, but the highest judicatory in the State, in all causes, civil and criminal. The proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New York, in the last resort, may, with truth, be said to reside in its Senate. If the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of New York?1 A SECOND objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. To an objection so little precise in itself, it is not easy to find a very precise answer. Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence? Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience? If we take this course, it will lead to a more intelligible, if not to a more certain result. The disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if I mistake not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our inquiries. The expediency of the junction of the Senate with the Executive, in the power of appointing to offices, will, I trust, be placed in a light not less satisfactory, in the disquisitions under the same head. And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings. But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most POPULAR branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the Government. But independent of this most active and operative principle, to secure the equilibrium of the national House of Representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the Senate. The exclusive privilege of originating money bills will belong to the House of Representatives. The same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? The same house will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. The constant possibility of the thing must be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the Union, for the first office in it. It would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate. A THIRD objection to the Senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. The principle of this objection would condemn a practice, which is to be seen in all the State governments, if not in all the governments with which we are acquainted: I mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. With equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. But that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. Though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the Senate, who will merely sanction the choice of the Executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers. If any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the Senate in the business of appointments. It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy. A FOURTH objection to the Senate in the capacity of a court of impeachments, is derived from its union with the Executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. After having combined with the Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty? This objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation. The security essentially intended by the Constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several States, is designed to be the pledge for the fidelity of the national councils in this particular. The convention might with propriety have meditated the punishment of the Executive, for a deviation from the instructions of the Senate, or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption: but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the Senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law, a principle which, I believe, has never been admitted into any government. How, in fact, could a majority in the House of Representatives impeach themselves? Not better, it is evident, than two thirds of the Senate might try themselves. And yet what reason is there, that a majority of the House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the Senate, sacrificing the same interests in an injurious treaty with a foreign power? The truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good. So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace. PUBLIUS. In that of New Jersey, also, the final judiciary authority is in a branch of the legislature. In New Hampshire, Massachusetts, Pennsylvanis, and South Carolina, one branch of the legislature is the court for the trial of impeachments. FEDERALIST No. 67 The Executive Department From the New York Packet. Tuesday, March 11, 1788. HAMILTON To the People of the State of New York: THE constitution of the executive department of the proposed government, claims next our attention. There is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this; and there is, perhaps, none which has been inveighed against with less candor or criticised with less judgment. Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation. Calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as the embryo, but as the full-grown progeny, of that detested parent. To establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York, have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio. Attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated. In the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation, or to treat with seriousness, the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject. They so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. It is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a king of Great Britain and a magistrate of the character marked out for that of the President of the United States. It is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition. In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is EXPRESSLY allotted to the Executives of the individual States. I mean the power of filling casual vacancies in the Senate. This bold experiment upon the discernment of his countrymen has been hazarded by a writer who (whatever may be his real merit) has had no inconsiderable share in the applauses of his party1; and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded. Let him now be confronted with the evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing. The second clause of the second section of the second article empowers the President of the United States "to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW." Immediately after this clause follows another in these words: "The President shall have power to fill up ?? VACANCIES that may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE AT THE END OF THEIR NEXT SESSION." It is from this last provision that the pretended power of the President to fill vacancies in the Senate has been deduced. A slight attention to the connection of the clauses, and to the obvious meaning of the terms, will satisfy us that the deduction is not even colorable. The first of these two clauses, it is clear, only provides a mode for appointing such officers, "whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW"; of course it cannot extend to the appointments of senators, whose appointments are OTHERWISE PROVIDED FOR in the Constitution2, and who are ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment by law. This position will hardly be contested. The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons: First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session." Secondly. If this clause is to be considered as supplementary to the one which precedes, the VACANCIES of which it speaks must be construed to relate to the "officers" described in the preceding one; and this, we have seen, excludes from its description the members of the Senate. Thirdly. The time within which the power is to operate, "during the recess of the Senate," and the duration of the appointments, "to the end of the next session" of that body, conspire to elucidate the sense of the provision, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the State legislatures, who are to make the permanent appointments, and not to the recess of the national Senate, who are to have no concern in those appointments; and would have extended the duration in office of the temporary senators to the next session of the legislature of the State, in whose representation the vacancies had happened, instead of making it to expire at the end of the ensuing session of the national Senate. The circumstances of the body authorized to make the permanent appointments would, of course, have governed the modification of a power which related to the temporary appointments; and as the national Senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the President. But lastly, the first and second clauses of the third section of the first article, not only obviate all possibility of doubt, but destroy the pretext of misconception. The former provides, that "the Senate of the United States shall be composed of two Senators from each State, chosen BY THE LEGISLATURE THEREOF for six years"; and the latter directs, that, "if vacancies in that body should happen by resignation or otherwise, DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the Executive THEREOF may make temporary appointments until the NEXT MEETING OF THE LEGISLATURE, which shall then fill such vacancies." Here is an express power given, in clear and unambiguous terms, to the State Executives, to fill casual vacancies in the Senate, by temporary appointments; which not only invalidates the supposition, that the clause before considered could have been intended to confer that power upon the President of the United States, but proves that this supposition, destitute as it is even of the merit of plausibility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atrocious to be palliated by hypocrisy. I have taken the pains to select this instance of misrepresentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the Constitution submitted to the consideration of the people. Nor have I scrupled, in so flagrant a case, to allow myself a severity of animadversion little congenial with the general spirit of these papers. I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of America. PUBLIUS. 1 See CATO, No. V. 2 Article I, section 3, clause I. FEDERALIST No. 68 The Mode of Electing the President From the New York Packet. Friday, March 14, 1788. HAMILTON To the People of the State of New York: THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded.1 I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for. It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture. It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty. Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice. All these advantages will happily combine in the plan devised by the convention; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President. But as a majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office. The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the Constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says: "For forms of government let fools contest That which is best administered is best," yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration. The Vice-President is to be chosen in the same manner with the President; with this difference, that the Senate is to do, in respect to the former, what is to be done by the House of Representatives, in respect to the latter. The appointment of an extraordinary person, as Vice-President, has been objected to as superfluous, if not mischievous. It has been alleged, that it would have been preferable to have authorized the Senate to elect out of their own body an officer answering that description. But two considerations seem to justify the ideas of the convention in this respect. One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the President should have only a casting vote. And to take the senator of any State from his seat as senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant for a contingent vote. The other consideration is, that as the Vice-President may occasionally become a substitute for the President, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other. It is remarkable that in this, as in most other instances, the objection which is made would lie against the constitution of this State. We have a Lieutenant-Governor, chosen by the people at large, who presides in the Senate, and is the constitutional substitute for the Governor, in casualties similar to those which would authorize the Vice-President to exercise the authorities and discharge the duties of the President. PUBLIUS. 1 Vide FEDERAL FARMER. FEDERALIST No. 69 The Real Character of the Executive From the New York Packet. Friday, March 14, 1788. HAMILTON To the People of the State of New York: I PROCEED now to trace the real characters of the proposed Executive, as they are marked out in the plan of the convention. This will serve to place in a strong light the unfairness of the representations which have been made in regard to it. The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York. That magistrate is to be elected for FOUR years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between HIM and a king of Great Britain, who is an HEREDITARY monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between HIM and a governor of New York, who is elected for THREE years, and is re-eligible without limitation or intermission. If we consider how much less time would be requisite for establishing a dangerous influence in a single State, than for establishing a like influence throughout the United States, we must conclude that a duration of FOUR years for the Chief Magistrate of the Union is a degree of permanency far less to be dreaded in that office, than a duration of THREE years for a corresponding office in a single State. The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware. The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. The king of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown's having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign; and tallies exactly with the revisionary authority of the council of revision of this State, of which the governor is a constituent part. In this respect the power of the President would exceed that of the governor of New York, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied. The President is to be the "commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States." In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.1 The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States. Thirdly. The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited "to levying war upon the United States, and adhering to their enemies, giving them aid and comfort"; and that by the laws of New York it is confined within similar bounds. Fourthly. The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment. The British monarch may prorogue or even dissolve the Parliament. The governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes. The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion. Every jurist2 of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plentitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty; and this may have possibly given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from the sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative. The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor. The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment is with us lodged in a council, composed of the governor and four members of the Senate, chosen by the Assembly. The governor CLAIMS, and has frequently EXERCISED, the right of nomination, and is ENTITLED to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nomination.3 If we compare the publicity which must necessarily attend the mode of appointment by the President and an entire branch of the national legislature, with the privacy in the mode of appointment by the governor of New York, closeted in a secret apartment with at most four, and frequently with only two persons; and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consists, than the considerable number of which the national Senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union. Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group. The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism. PUBLIUS. 1 A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted that the king of Great Britain owes his prerogative as commander-in-chief to an annual mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, "contrary to all reason and precedent," as Blackstone vol. i., page 262, expresses it, by the Long Parliament of Charles I. but by the statute the 13th of Charles II., chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his Majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, EVER WAS AND IS the undoubted right of his Majesty and his royal predecessors, kings and queens of England, and that both or either house of Parliament cannot nor ought to pretend to the same. 2 Vide Blackstone's "Commentaries," vol i., p. 257. 3 Candor, however, demands an acknowledgment that I do not think the claim of the governor to a right of nomination well founded. Yet it is always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. And independent of this claim, when we take into view the other considerations, and pursue them through all their consequences, we shall be inclined to draw much the same conclusion. *There are two slightly different versions of No. 70 included here. FEDERALIST No. 70 The Executive Department Further Considered From the New York Packet. Tuesday, March 18, 1788. HAMILTON To the People of the State of New York: THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome. There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention? The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. The ingredients which constitute safety in the repub lican sense are, first, a due dependence on the people, secondly, a due responsibility. Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men.1 Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction. The experience of other nations will afford little instruction on this head. As far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the Executive. We have seen that the Achaeans, on an experiment of two Praetors, were induced to abolish one. The Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls, and between the military Tribunes, who were at times substituted for the Consuls. But it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. That the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the Consuls, of making a division of the government between them. The patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the Consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. In addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot one of them remaining at Rome to govern the city and its environs, the other taking the command in the more distant provinces. This expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic. But quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good sense, we shall discover much greater cause to reject than to approve the idea of plurality in the Executive, under any modification whatever. Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. Upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious. In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. When a resolution too is once taken, the opposition must be at an end. That resolution is a law, and resistance to it punishable. But no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. Here, they are pure and unmixed. There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the Executive which are the most necessary ingredients in its composition, vigor and expedition, and this without anycounterbalancing good. In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. It must be confessed that these observations apply with principal weight to the first case supposed that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive. An artful cabal in that council would be able to distract and to enervate the whole system of administration. If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable. "I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point." These and similar pretexts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium, of a strict scrunity into the secret springs of the transaction? Should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties? In the single instance in which the governor of this State is coupled with a council that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. Scandalous appointments to important offices have been made. Some cases, indeed, have been so flagrant that ALL PARTIES have agreed in the impropriety of the thing. When inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. In tenderness to individuals, I forbear to descend to particulars. It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it. In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the pub lic peace, that he is unaccountable for his administration, and his person sacred. Nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. Without this, there would be no responsibility whatever in the executive department an idea inadmissible in a free government. But even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. He is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion. But in a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the British Constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. In the monarchy of Great Britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. In the American republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself. The idea of a council to the Executive, which has so generally obtained in the State constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man. If the maxim should be admitted to be applicable to the case, I should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. But I do not think the rule at all applicable to the executive power. I clearly concur in opinion, in this particular, with a writer whom the celebrated Junius pronounces to be "deep, solid, and ingenious," that "the executive power is more easily confined when it is ONE";2 that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the Executive is rather dangerous than friendly to liberty. A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is nattainable. Numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. The united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. When power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. The Decemvirs of Rome, whose name denotes their number,3 were more to be dreaded in their usurpation than any ONE of them would have been. No person would think of proposing an Executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. The extreme of these numbers, is not too great for an easy combination; and from such a combination America would have more to fear, than from the ambition of any single individual. A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults. I forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution. PUBLIUS. 1 New York has no council except for the single purpose of appointing to offices; New Jersey has a council whom the governor may consult. But I think, from the terms of the constitution, their resolutions do not bind him. 2 De Lolme. 3 Ten. *There are two slightly different versions of No. 70 included here. FEDERALIST No. 70 The Executive Department Further Considered From the New York Packet. Tuesday, March 18, 1788. HAMILTON To the People of the State of New York: THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome. There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention? The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. The ingredients which constitute safety in the repub lican sense are, first, a due dependence on the people, secondly, a due responsibility. Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men.1 Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction. The experience of other nations will afford little instruction on this head. As far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the Executive. We have seen that the Achaeans, on an experiment of two Praetors, were induced to abolish one. The Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls, and between the military Tribunes, who were at times substituted for the Consuls. But it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. That the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the Consuls, of making a division of the government between them. The patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the Consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. In addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot one of them remaining at Rome to govern the city and its environs, the other taking the command in the more distant provinces. This expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic. But quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good se se, we shall discover much greater cause to reject than to approve the idea of plurality in the Executive, under any modification whatever. Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. Upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious. In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. When a resolution too is once taken, the opposition must be at an end. That resolution is a law, and resistance to it punishable. But no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. Here, they are pure and unmixed. There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the Executive which are the most necessary ingredients in its composition, vigor and expedition, and this without anycounterbalancing good. In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. It must be confessed that these observations apply with principal weight to the first case supposed that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive. An artful cabal in that council would be able to distract and to enervate the whole system of administration. If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable. "I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point." These and similar pretexts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium, of a strict scrunity into the secret springs of the transaction? Should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties? In the single instance in which the governor of this State is coupled with a council that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. Scandalous appointments to important offices have been made. Some cases, indeed, have been so flagrant that ALL PARTIES have agreed in the impropriety of the thing. When inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. In tenderness to individuals, I forbear to descend to particulars. It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it. In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the pub lic peace, that he is unaccountable for his administration, and his person sacred. Nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. Without this, there would be no responsibility whatever in the executive department an idea inadmissible in a free government. But even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. He is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion. But in a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the British Constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. In the monarchy of Great Britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. In the American republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself. The idea of a council to the Executive, which has so generally obtained in the State constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man. If the maxim should be admitted to be applicable to the case, I should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. But I do not think the rule at all applicable to the executive power. I clearly concur in opinion, in this particular, with a writer whom the celebrated Junius pronounces to be "deep, solid, and ingenious," that "the executive power is more easily confined when it is ONE";2 that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the Executive is rather dangerous than friendly to liberty. A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is nattainable. Numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. The united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. When power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. The Decemvirs of Rome, whose name denotes their number,3 were more to be dreaded in their usurpation than any ONE of them would have been. No person would think of proposing an Executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. The extreme of these numbers, is not too great for an easy combination; and from such a combination America would have more to fear, than from the ambition of any single individual. A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults. I forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution. PUBLIUS. 1 New York has no council except for the single purpose of appointing to offices; New Jersey has a council whom the governor may consult. But I think, from the terms of the constitution, their resolutions do not bind him. 2 De Lolme. 3 Ten. FEDERALIST No. 71 The Duration in Office of the Executive From the New York Packet. Tuesday, March 18, 1788. HAMILTON To the People of the State of New York: DURATION in office has been mentioned as the second requisite to the energy of the Executive authority. This has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be evident, that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. It is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. The inference from it is, that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he MUST lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. If the case should only be, that he MIGHT lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the characteristics of the station. There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly INTEND the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always REASON RIGHT about the MEANS of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision. The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution. It may perhaps be asked, how the shortness of the duration in office can affect the independence of the Executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. One answer to this inquiry may be drawn from the principle already remarked that is, from the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. Another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment. It may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate. It cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. He might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. As, on the one hand, a duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. If a British House of Commons, from the most feeble beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation1 attempted by them, what would be to be feared from an elective magistrate of four years' duration, with the confined authorities of a President of the United States? What, but that he might be unequal to the task which the Constitution assigns him? I shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments. PUBLIUS. 1 This was the case with respect to Mr. Fox's India bill, which was carried in the House of Commons, and rejected in the House of Lords, to the entire satisfaction, as it is said, of the people. FEDERALIST No. 72 The Same Subject Continued, and Re-Eligibility of the Executive Considered From the New York Packet. Friday, March 21, 1788. HAMILTON To the People of the State of New York: THE administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual, and perhaps its most precise signification. It is limited to executive details, and falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war, these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. The persons, therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. This view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. These considerations, and the influence of personal confidences and attachments, would be likely to induce every new President to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government. With a positive duration of considerable extent, I connect the circumstance of re-eligibility. The first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. The last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration. Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates, I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after. This exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary. One ill effect of the exclusion would be a diminution of the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of OBTAINING, by MERITING, a continuance of them. This position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interests coincide with their duty. Even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. The most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good. Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same man, probably, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. His avarice might be a guard upon his avarice. Add to this that the same man might be vain or ambitious, as well as avaricious. And if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. But with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition. An ambitious man, too, when he found himself seated on the summit of his country's honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on his part could save him from the unwelcome reverse; such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty. Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess? A third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. That experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. What more desirable or more essential than this quality in the governors of nations? Where more desirable or more essential than in the first magistrate of a nation? Can it be wise to put this desirable and essential quality under the ban of the Constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? This, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellowcitizens, after they have by a course of service fitted themselves for doing it with a greater degree of utility. A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. How unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances! Without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration. A fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. By NECESSITATING a change of men, in the first office of the nation, it would necessitate a mutability of measures. It is not generally to be expected, that men will vary and measures remain uniform. The contrary is the usual course of things. And we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy. These are some of the disadvantages which would flow from the principle of exclusion. They apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other. What are the advantages promised to counterbalance these disadvantages? They are represented to be: 1st, greater independence in the magistrate; 2d, greater security to the people. Unless the exclusion be perpetual, there will be no pretense to infer the first advantage. But even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? May he have no connections, no friends, for whom he may sacrifice it? May he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement. As to the second supposed advantage, there is still greater reason to entertain doubts concerning it. If the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and pre-eminence had acquired the force of habit. And if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege. There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive. PUBLIUS. FEDERALIST No. 73 The Provision For The Support of the Executive, and the Veto Power From the New York Packet. Friday, March 21, 1788. HAMILTON To the People of the State of New York: THE third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its support. It is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. These expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man's support is a power over his will. If it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the Executive by the terrors or allurements of the pecuniary arrangements of the legislative body. It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed Constitution. It is there provided that "The President of the United States shall, at stated times, receive for his services a compensation WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING THE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT RECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT from the United States, or any of them." It is impossible to imagine any provision which would have been more eligible than this. The legislature, on the appointment of a President, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act. He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution. The last of the requisites to energy, which have been enumerated, are competent powers. Let us proceed to consider those which are proposed to be vested in the President of the United States. The first thing that offers itself to our observation, is the qualified negative of the President upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body. The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of selfdefense. But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body. The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body. But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflexion, would condemn. The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them. It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones. Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament. He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. Nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very considerable period has elapsed since the negative of the crown has been exercised. If a magistrate so powerful and so well fortified as a British monarch, would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a government wholly and purely republican? It is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. An argument, indeed, against its expediency, has been drawn from this very source. It has been represented, on this account, as a power odious in appearance, useless in practice. But it will not follow, that because it might be rarely exercised, it would never be exercised. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility. In the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men who, under any circumstances, will have the courage to do their duty at every hazard. But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual. It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. A power of this nature in the Executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared. This qualified negative, as has been elsewhere remarked, is in this State vested in a council, consisting of the governor, with the chancellor and judges of the Supreme Court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility has become so apparent, that persons who, in compiling the Constitution, were violent opposers of it, have from experience become its declared admirers.1 I have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this State, in favor of that of Massachusetts. Two strong reasons may be imagined for this preference. One is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the Executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive. PUBLIUS. 1 Mr. Abraham Yates, a warm opponent of the plan of the convention is of this number. FEDERALIST No. 74 The Command of the Military and Naval Forces, and the Pardoning Power of the Executive From the New York Packet. Tuesday, March 25, 1788. HAMILTON To the People of the State of New York: THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States." The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority. "The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers." This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office. He is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men. The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt. PUBLIUS. FEDERALIST No. 75 The Treaty-Making Power of the Executive For the Independent Journal. HAMILTON To the People of the State of New York: THE President is to have power, "by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur." Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic of the intermixture of powers; some contending that the President ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the Senate. Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of ALL the members of the Senate, to two thirds of the members PRESENT. As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated. With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States. To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations. It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. While the Union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the Executive. Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances which must concur in the appointment of a President, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity. The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, SECRECY, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project. The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members PRESENT. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary. To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a PROPORTION which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that, under the existing Confederation, two members MAY, and usually DO, represent a State; whence it happens that Congress, who now are solely invested with ALL THE POWERS of the Union, rarely consist of a greater number of persons than would compose the intended Senate. If we add to this, that as the members vote by States, and that where there is only a single member present from a State, his vote is lost, it will justify a supposition that the active voices in the Senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When, in addition to these considerations, we take into view the co-operation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new Constitution, than they now enjoy under the Confederation. And when we proceed still one step further, and look forward to the probable augmentation of the Senate, by the erection of new States, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust. PUBLIUS. FEDERALIST No. 76 The Appointing Power of the Executive From the New York Packet. Tuesday, April 1, 1788. HAMILTON To the People of the State of New York: THE President is "to NOMINATE, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up ALL VACANCIES which may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE at the end of their next session." It has been observed in a former paper, that "the true test of a good government is its aptitude and tendency to produce a good administration." If the justness of this observation be admitted, the mode of appointing the officers of the United States contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union; and it will not need proof, that on this point must essentially depend the character of its administration. It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. When, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men. Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice. But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration. It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments. The venalty of the British House of Commons has been long a topic of accusation against that body, in the country to which they belong as well as in this; and it cannot be doubted that the charge is, to a considerable extent, well founded. But it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance. The Constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that "No senator or representative shall during the time FOR WHICH HE WAS ELECTED, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office." PUBLIUS. FEDERALIST No. 77 The Appointing Power Continued and Other Powers of the Executive Considered From the New York Packet. Friday, April 4, 1788. HAMILTON To the People of the State of New York: IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government. To this union of the Senate with the President, in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence over the Senate, and in others that it would have an opposite tendency, a strong proof that neither suggestion is true. To state the first in its proper form, is to refute it. It amounts to this: the President would have an improper INFLUENCE OVER the Senate, because the Senate would have the power of RESTRAINING him. This is an absurdity in terms. It cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control. Let us take a view of the converse of the proposition: "the Senate would influence the Executive." As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, I answer, that the instances in which the President could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the Senate. The POWER which can ORIGINATE the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant RESTRAINING him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace. The reverse of all this characterizes the manner of appointment in this State. The council of appointment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know, is that the governor claims the right of nomination; that TWO out of the inconsiderable number of FOUR men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. Whether a governor of this State avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture. Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. If, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the Executive. And yet such a council has been warmly contended for as an essential amendment in the proposed Constitution. I could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; I mean that of uniting the House of Representatives in the power of making them. I shall, however, do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. The example of most of the States in their local constitutions encourages us to reprobate the idea. The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States. Except some cavils about the power of convening EITHER house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. It required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the Senate at least, we can readily discover a good reason for it. AS this body has a concurrent power with the Executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the House of Representatives. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer. We have now completed a survey of the structure and powers of the executive department, which, I have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. The remaining inquiry is: Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people? PUBLIUS. FEDERALIST No. 78 The Judiciary Department From McLEAN'S Edition, New York. HAMILTON To the People of the State of New York: WE PROCEED now to an examination of the judiciary department of the proposed government. In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined. The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other. First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition. Second. As to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility. According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference. But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws. There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject. Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution. PUBLIUS. 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing." "Spirit of Laws." vol. i., page 186. 2 Idem, page 181. 3 Vide "Protest of the Minority of the Convention of Pennsylvania," Martin's Speech, etc. FEDERALIST No. 79 The Judiciary Continued From MCLEAN's Edition, New York. HAMILTON To the People of the State of New York: NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, A POWER OVER A MAN's SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that PERMANENT1 salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States "shall at STATED TIMES receive for their services a compensation which shall not be DIMINISHED during their continuance in office." This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges, That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service. This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges. The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges. The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification. The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench. PUBLIUS. 1 Vide "Constitution of Massachusetts," chapter 2, section I, article 13. FEDERALIST No. 80 The Powers of the Judiciary From McLEAN's Edition, New York. HAMILTON To the People of the State of New York: To JUDGE with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects. It seems scarcely to admit of controversy, that the judicary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased. The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States. As to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed. Still less need be said in regard to the third point. Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum. The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals. The power of determining causes between two States, between one State and the citizens of another, and between the citizens of different States, is perhaps not less essential to the peace of the Union than that which has been just examined. History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body. A method of terminating territorial disputes between the States, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. But there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control. It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it be a just principle that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded. The fifth point will demand little animadversion. The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction. The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same State. Claims to land under grants of different States, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting States could be expected to be unbiased. The laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the State to which they belonged. And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government. Having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. It is to comprehend "all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects." This constitutes the entire mass of the judicial authority of the Union. Let us now review it in detail. It is, then, to extend: First. To all cases in law and equity, ARISING UNDER THE CONSTITUTION and THE LAWS OF THE UNITED STATES. This corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the United States. It has been asked, what is meant by "cases arising under the Constitution," in contradiction from those "arising under the laws of the United States"? The difference has been already explained. All the restrictions upon the authority of the State legislatures furnish examples of it. They are not, for instance, to emit paper money; but the interdiction results from the Constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary signification of the terms. This may serve as a sample of the whole. It has also been asked, what need of the word "equity What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of FRAUD, ACCIDENT, TRUST, or HARDSHIP, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those States where the formal and technical distinction between LAW and EQUITY is not maintained, as in this State, where it is exemplified by every day's practice. The judiciary authority of the Union is to extend: Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace. Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts. Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes. Fifth. To controversies between two or more States; between a State and citizens of another State; between citizens of different States. These belong to the fourth of those classes, and partake, in some measure, of the nature of the last. Sixth. To cases between the citizens of the same State, CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES. These fall within the last class, and ARE THE ONLY INSTANCES IN WHICH THE PROPOSED CONSTITUTION DIRECTLY CONTEMPLATES THE COGNIZANCE OF DISPUTES BETWEEN THE CITIZENS OF THE SAME STATE. Seventh. To cases between a State and the citizens thereof, and foreign States, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature. From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconviences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. PUBLIUS. FEDERALIST. No. 81 The Judiciary Continued, and the Distribution of the Judicial Authority From McLEAN's Edition, New York. HAMILTON To the People of the State of New York: LET US now return to the partition of the judiciary authority between different courts, and their relations to each other, "The judicial power of the United States is" (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish."1 That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body. The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a PART of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity. These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended. It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject. It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. Having now examined, and, I trust, removed the objections to the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts,2 and the relations which will subsist between these and the former. The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to institute or AUTHORUZE, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits. But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much "to constitute tribunals," as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. I should consider every thing calculated to give, in practice, an UNRESTRAINED COURSE to appeals, as a source of public and private inconvenience. I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed Constitution. These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only "in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party." Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable. Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, "with such EXCEPTIONS and under such REGULATIONS as the Congress shall make." The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word "appellate," therefore, will not be understood in the same sense in New England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. If, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court. But it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that the latter has jurisdiction of the fact as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.3 This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, "appellate jurisdiction, both as to law and fact," do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts. The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States ALL CAUSES are tried in this mode4; and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security. This view of the matter, at any rate, puts it out of all doubt that the supposed ABOLITION of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any EXCEPTIONS and REGULATIONS which may be thought advisable; that this appellate jurisdiction does, in no case, ABOLISH the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source. PUBLIUS. 1 Article 3, sec. I. 2 This power has been absurdly represented as intended to abolish all the county courts in the several States, which are commonly called inferior courts. But the expressions of the Constitution are, to constitute "tribunals INFERIOR TO THE SUPREME COURT"; and the evident design of the provision is to enable the institution of local courts, subordinate to the Supreme, either in States or larger districts. It is ridiculous to imagine that county courts were in contemplation. 3 This word is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law. 4 I hold that the States will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper. FEDERALIST No. 82 The Judiciary Continued From McLEAN's Edition, New York. HAMILTON To the People of the State of New York: THE erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 'T is time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE. Such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. The principal of these respect the situation of the State courts in regard to those causes which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention. The principles established in a former paper1 teach us that the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And under this impression, I shall lay it down as a rule, that the State courts will RETAIN the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. The only thing in the proposed Constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage: "The JUDICIAL POWER of the United States SHALL BE VESTED in one Supreme Court, and in SUCH inferior courts as the Congress shall from time to time ordain and establish." This might either be construed to signify, that the supreme and subordinate courts of the Union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one Supreme Court, and as many subordinate courts as Congress should think proper to appoint; or in other words, that the United States should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the State tribunals; and as the first would amount to an alienation of State power by implication, the last appears to me the most natural and the most defensible construction. But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be PECULIAR to, the Constitution to be established; for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. I mean not therefore to contend that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited. Here another question occurs: What relation would subsist between the national and State courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. The evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions giving appellate jurisdiction to the Supreme Court, to appeals from the subordinate federal courts, instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation. But could an appeal be made to lie from the State courts to the subordinate federal judicatories? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance the affirmative. The plan of the convention, in the first place, authorizes the national legislature "to constitute tribunals inferior to the Supreme Court."2 It declares, in the next place, that "the JUDICIAL POWER of the United States SHALL BE VESTED in one Supreme Court, and in such inferior courts as Congress shall ordain and establish"; and it then proceeds to enumerate the cases to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. The only outlines described for them, are that they shall be "inferior to the Supreme Court," and that they shall not exceed the specified limits of the federal judiciary. Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined. It would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the Supreme Court. The State tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the State courts to district courts of the Union. PUBLIUS. 1 No. 31. 2 Sec. 8th art. 1st. FEDERALIST No. 83 The Judiciary Continued in Relation to Trial by Jury From MCLEAN's Edition, New York. HAMILTON To the People of the State of New York: THE objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to CIVIL CAUSES, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to CRIMINAL CAUSES. To argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the EXISTENCE of MATTER, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning. With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every man of discernment must at once perceive the wide difference between SILENCE and ABOLITION. But as the inventors of this fallacy have attempted to support it by certain LEGAL MAXIMS of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken. The maxims on which they rely are of this nature: "A specification of particulars is an exclusion of generals"; or, "The expression of one thing is the exclusion of another." Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter. The rules of legal interpretation are rules of COMMONSENSE, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others. A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge THE POWER of the legislature to exercise that mode if it should be thought proper. The pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation. From these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. Even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction. Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. This will be best done by examples. The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. In like manner the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. These examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. But that there may be no misapprehensions upon this subject, I shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them. Let us suppose that by the laws of this State a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. In such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. But let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? The position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature. From these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed Constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the State constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. The foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the State courts only, and in the manner which the State constitutions and laws prescribe. All land causes, except where claims under the grants of different States come into question, and all other controversies between the citizens of the same State, unless where they depend upon positive violations of the articles of union, by acts of the State legislatures, will belong exclusively to the jurisdiction of the State tribunals. Add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government. The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas-corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention. It has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. This observation deserves to be canvassed. It is evident that it can have no influence upon the legislature, in regard to the AMOUNT of taxes to be laid, to the OBJECTS upon which they are to be imposed, or to the RULE by which they are to be apportioned. If it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws. As to the mode of collection in this State, under our own Constitution, the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. The dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public nor promote the convenience of the citizens. It would often occasion an accumulation of costs, more burdensome than the original sum of the tax to be levied. And as to the conduct of the officers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. Wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case. The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. It is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes. Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil cases to liberty, I admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. There is, however, in all cases, great difficulty in this; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention. The great difference between the limits of the jury trial in different States is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. In this State, our judicial establishments resemble, more nearly than in any other, those of Great Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England), a court of admiralty and a court of chancery. In the courts of common law only, the trial by jury prevails, and this with some exceptions. In all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury.1 In New Jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. In that State the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New Jersey than in New York. In Pennsylvania, this is perhaps still more the case, for there is no court of chancery in that State, and its common-law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. Delaware has in these respects imitated Pennsylvania. Maryland approaches more nearly to New York, as does also Virginia, except that the latter has a plurality of chancellors. North Carolina bears most affinity to Pennsylvania; South Carolina to Virginia. I believe, however, that in some of those States which have distinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common-law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. In Connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. Their common-law courts have admiralty and, to a certain extent, equity jurisdiction. In cases of importance, their General Assembly is the only court of chancery. In Connecticut, therefore, the trial by jury extends in PRACTICE further than in any other State yet mentioned. Rhode Island is, I believe, in this particular, pretty much in the situation of Connecticut. Massachusetts and New Hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. In the four Eastern States, the trial by jury not only stands upon a broader foundation than in the other States, but it is attended with a peculiarity unknown, in its full extent, to any of them. There is an appeal OF COURSE from one jury to another, till there have been two verdicts out of three on one side. From this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several States; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the States; and secondly, that more or at least as much might have been hazarded by taking the system of any one State for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation. The propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose "Trial by jury shall be as heretofore" and this I maintain would be senseless and nugatory. The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial by jury, with various limitations, is known in each State individually, yet in the United States, AS SUCH, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term HERETOFORE could relate. It would therefore be destitute of a precise meaning, and inoperative from its uncertainty. As, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if I apprehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in the federal courts should be tried by jury, if, in the State where the courts sat, that mode of trial would obtain in a similar case in the State courts; that is to say, admiralty causes should be tried in Connecticut by a jury, in New York without one. The capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every wellregulated judgment towards it. Whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties. But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations that is, in most cases where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable. It will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of Europe, and that, pursuant to such treaties, they are determinable in Great Britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, undergoes a re-examination. This alone demonstrates the impolicy of inserting a fundamental provision in the Constitution which would make the State systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable. My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief IN EXTRAORDINARY CASES, which are EXCEPTIONS2 to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a SPECIAL determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars. It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence: which is the model that has been followed in several of the States. But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode. These appeared to be conclusive reasons against incorporating the systems of all the States, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the Pennsylvania minority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect. It is in this form: "In civil actions between citizens of different States, every issue of fact, arising in ACTIONS AT COMMON LAW, may be tried by a jury if the parties, or either of them request it." This, at best, is a proposition confined to one description of causes; and the inference is fair, either that the Massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. If the last, it affords a strong corroboration of the extreme difficulty of the thing. But this is not all: if we advert to the observations already made respecting the courts that subsist in the several States of the Union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize THAT species of causes which it is intended shall be entitled to a trial by jury. In this State, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other States the boundaries are less precise. In some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one State a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another State, a cause exactly similar to the other, must be decided without the intervention of a jury, because the State judicatories varied as to common-law jurisdiction. It is obvious, therefore, that the Massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different States. To devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. It would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the States in the Union, or that would perfectly quadrate with the several State institutions. It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. If the plan of taking one State as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the States would have been taken as the model. It has been shown that many of them would be improper ones. And I leave it to conjecture, whether, under all circumstances, it is most likely that New York, or some other State, would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other States, at the partiality which had been shown to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment. To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this I believe, no precedent is to be found in any member of the Union; and the considerations which have been stated in discussing the proposition of the minority of Pennsylvania, must satisfy every sober mind that the establishment of the trial by jury in ALL cases would have been an unpardonable error in the plan. In short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government. I cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. They have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished3 by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a Constitution for the United States. The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. For my part, I acknowledge myself to be convinced that even in this State it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these States as in Great Britain, afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature. This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this State since the Revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut or Great Britain. It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career. The truth is that the general GENIUS of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be, with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government. It certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a Constitution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular State in the Union, can boast of no constitutional provision for either. PUBLIUS. 1 It has been erroneously insinuated, with regard to the court of chancery, that this court generally tries disputed facts by a jury. The truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question. 2 It is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to SPECIAL circumstances, which form exceptions to general rules. 3 Vide No. 81, in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the Supreme Court, is examined and refuted. FEDERALIST No. 84 Certain General and Miscellaneous Objections to the Constitution Considered and Answered From McLEAN's Edition, New York. HAMILTON To the People of the State of New York: IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper. The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured. To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions. Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7 "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Section 9, of the same article, clause 2 "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Clause 3 "No bill of attainder or ex-post-facto law shall be passed." Clause 7 "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." Article 3, section 2, clause 3 "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." Section 3, of the same article "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And clause 3, of the same section "The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone,1 in reference to the latter, are well worthy of recital: "To bereave a man of life, Usays he,e or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls "the BULWARK of the British Constitution."2 Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people. To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself. It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired. I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved"? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.3 And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights. There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "It is improper," say the objectors, "to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body." This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government. It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives. It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union. Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due TO the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT."4 The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan. The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people. Whence is the dreaded augmentation of expense to spring? One source indicated, is the multiplication of offices under the new government. Let us examine this a little. It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former. Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence. Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress. But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system. The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union. PUBLIUS. 1. Vide Blackstone's "Commentaries," vol. 1., p. 136. 2. Vide Blackstone's "Commentaries," vol. iv., p. 438. 3. To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained. FEDERALIST No. 85 Concluding Remarks From MCLEAN's Edition, New York. HAMILTON To the People of the State of New York: ACCORDING to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two points: "the analogy of the proposed government to your own State constitution," and "the additional security which its adoption will afford to republican government, to liberty, and to property." But these heads have been so fully anticipated and exhausted in the progress of the work, that it would now scarcely be possible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid. It is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this State holds, not less with regard to many of the supposed defects, than to the real excellences of the former. Among the pretended defects are the re-eligibility of the Executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. These and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this State, as on the one proposed for the Union; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. Nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable. The additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the Union will impose on local factions and insurrections, and on the ambition of powerful individuals in single States, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the Confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the States in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the State governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals. Thus have I, fellow-citizens, executed the task I had assigned to myself; with what success, your conduct must determine. I trust at least you will admit that I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted. I have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the Constitution. The charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. It is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which I did not intend; it is certain that I have frequently felt a struggle between sensibility and moderation; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much. Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty from which nothing can give him a dispensation. 'T is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. Let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of America has already given its sanction to the plan which he is to approve or reject. I shall not dissemble that I feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that I am unable to discern any real force in those by which it has been opposed. I am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced. Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. "Why," say they, "should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?" This may be plausible enough, but it is only plausible. In the first place I remark, that the extent of these concessions has been greatly exaggerated. They have been stated as amounting to an admission that the plan is radically defective, and that without material alterations the rights and the interests of the community cannot be safely confided to it. This, as far as I have understood the meaning of those who make the concessions, is an entire perversion of their sense. No advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one; is the best that the present views and circumstances of the country will permit; and is such an one as promises every species of security which a reasonable people can desire. I answer in the next place, that I should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials? The reasons assigned in an excellent little pamphlet lately published in this city,1 are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. I will not repeat the arguments there used, as I presume the production itself has had an extensive circulation. It is certainly well worthy the perusal of every friend to his country. There is, however, one point of light in which the subject of amendments still remains to be considered, and in which it has not yet been exhibited to public view. I cannot resolve to conclude without first taking a survey of it in this aspect. It appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the Constitution. The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State. To its complete establishment throughout the Union, it will therefore require the concurrence of thirteen States. If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine States. Here, then, the chances are as thirteen to nine2 in favor of subsequent amendment, rather than of the original adoption of an entire system. This is not all. Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. The degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties. But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution. In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing thirteen States at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. It is this that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged "on the application of the legislatures of two thirds of the States, which at present amount to nine, to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof." The words of this article are peremptory. The Congress "shall call a convention." Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority. If the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object. The zeal for attempts to amend, prior to the establishment of the Constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: "To balance a large state or society Usays hee, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they INEVITABLY fall into in their first trials and experiments."3 These judicious reflections contain a lesson of moderation to all the sincere lovers of the Union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the States from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from time and experience. It may be in me a defect of political fortitude, but I acknowledge that I cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. A nation, without a national government, is, in my view, an awful spectacle. The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which I look forward with trembling anxiety. I can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen States, and after having passed over so considerable a part of the ground, to recommence the course. I dread the more the consequences of new attempts, because I know that powerful individuals, in this and in other States, are enemies to a general national government in every possible shape. PUBLIUS. 1 Entitled "An Address to the People of the State of New York." 2 It may rather be said TEN, for though two thirds may set on foot the measure, three fourths must ratify. 3 Hume's "Essays," vol. i., page 128: "The Rise of Arts and Sciences." 
40400	----	file was produced from images generously made available by the Posner Memorial Collection (http://posner.library.cmu.edu/Posner/)) HISTORY OF THE ORIGIN, FORMATION, AND ADOPTION OF THE CONSTITUTION OF THE UNITED STATES; WITH NOTICES OF ITS PRINCIPAL FRAMERS. BY GEORGE TICKNOR CURTIS. IN TWO VOLUMES. VOLUME I. NEW YORK: HARPER AND BROTHERS, FRANKLIN SQUARE. 1854. Entered according to Act of Congress, in the year 1854, by GEORGE T. CURTIS, in the Clerk's Office of the District Court of the District of Massachusetts TO GEORGE TICKNOR, ESQ., THE HISTORIAN OF SPANISH LITERATURE, BY WHOSE ACCURATE SCHOLARSHIP AND CAREFUL CRITICISM THESE PAGES HAVE LARGELY PROFITED, I DEDICATE THIS WORK, IN AFFECTIONATE ACKNOWLEDGMENT OF TIES, WHICH HAVE BEEN TO ME CONSTANT SOURCES OF HAPPINESS THROUGH MY WHOLE LIFE. PREFACE. A special history of the origin and establishment of the Constitution of the United States has not yet found a place in our national literature. Many years ago, I formed the design of writing such a work, for the purpose of exhibiting the deep causes which at once rendered the Convention of 1787 inevitable, and controlled or directed its course and decisions; the mode in which its great work was accomplished; and the foundations on which our national liberty and prosperity were then deliberately settled by the statesmen to whom the American Revolution gave birth, and on which they have rested ever since. In the prosecution of this purpose I had, until death terminated his earthly interests, the encouragement and countenance of that illustrious person, whose relation to the Constitution of the United States, during the last forty years, has been not inferior in importance to that of any of its founders during the preceding period. Mr. Webster had for a long time the intention of writing a work which should display the remarkable state of affairs under whose influence the Constitution was first brought into practical application; and this design he relinquished only when all the remaining plans of his life were surrendered with the solemn and religious resignation that marked its close. It was known to him that I had begun to labor upon another branch of the same subject. In the spring of 1852 I wrote to him to explain the plan of my work, and to ask him for a copy of some remarks made by his father in the Convention of New Hampshire when the Constitution was ratified by that State. I received from him the following answer. "WASHINGTON, March 7th, [1852]. "MY DEAR SIR,-- "I will try to find for you my father's speech, as it was collected from tradition and published some years ago. If I live to see warm weather in Marshfield, I shall be glad to see you beneath its shades, and to talk of your book. "You are probably aware that I have meditated the writing of something upon the History of the Constitution and the Administration of Washington. I have the plan of such a work pretty definitely arranged, but whether I shall ever be able to execute it I cannot say:--'the wills above be done.' "Yours most truly, "DANL. WEBSTER." Regarding this kind and gracious intimation as a wish not to be anticipated in any part of the field which he had marked out for himself, I replied, that if, when I should have the pleasure of seeing him, my work should seem to involve any material part of the subject which he had comprehended within his own plan, I should of course relinquish it at once. When, however, the period of that summer's leisure arrived, and brought with it, to his watchful observation, so many tokens that "the night cometh," he seemed anxious to impress upon me the importance of the task I had undertaken, and to remove any obstacle to its fulfilment that he might have suggested. Being with him alone, on an occasion when his physician, after a long consultation, had just left him, he said to me, with an earnestness and solemnity that can never be described or forgotten: "_You_ have a future; _I_ have none. You are writing a History of the Constitution. _You_ will write that work; _I_ shall not. Go on, by all means, and you shall have every aid that I can give you." The event of which these words were ominous was then only four weeks distant. Many times, during those short remaining weeks, I sought "the shades of Marshfield"; but now it was for the offices and duties, not for the advantages, of friendship;--and no part of my work was ever submitted to him to whose approbation, sympathy, and aid I had so long looked forward, as to its most important stimulus and its most appropriate reward. But the solemn injunction which I had received became to me an ever-present admonition, and gave me--if I may make such a profession--the needful fidelity to my great subject. Whatever may be thought of the manner in which it has been treated, a consciousness that the impartial spirit of History has guided me will remain, after every ordeal of criticism shall have been passed. And here, while memories of the earlier as well as of the later lost crowd upon me with my theme, I cannot but think of him, jurist and magistrate, friend of my younger as well as riper years, who was called from all human sympathies before I had conceived the undertaking which I have now completed. Fortunate shall I be, if to those in whom his blood flows united with mine I can transmit a work that may be permitted to stand near that noble Commentary, which is known and honored wherever the Constitution of the United States bears sway. The plan of this work is easily explained. The first volume embraces the Constitutional History of the United States from the commencement of the Revolution to the assembling of the Convention of 1787, together with some notices of the principal members of that body. The second volume is devoted to the description of the process of forming the Constitution, in which I have mainly followed, of course, the ample Record of the Debates preserved by Mr. Madison, and the official Journal of the proceedings.[1] The period of our history from the commencement of the Revolution to the beginning of Washington's administration is the period when our State and national institutions were formed. With the events of the Revolution, its causes, its progress, its military history, and its results, the people of this country have long been familiar. But the constitutional history of the United States has not been written, and few persons have made themselves accurately acquainted with its details. How the Constitution of the United States came to be formed; from what circumstances it arose; what its relations were to institutions previously existing in the country; what necessities it satisfied; and what was its adaptation to the situation of these States,--are all points of the gravest importance to the American people, and all of them require to be distinctly stated for their permanent welfare. For the history of this Constitution is not like the history of a monarchy, in which some things are obsolete, while some are of present importance. The Constitution of the United States is a living code, for the perpetuation of a system of free government, which the people of each succeeding generation must administer for themselves. Every line of it is as operative and as binding to-day as it was when the government was first set in motion by its provisions, and no part of it can fall into neglect or decay while that government continues to exist. The Constitution of the United States was the means by which republican liberty was saved from the consequences of impending anarchy; it secured that liberty to posterity, and it left it to depend on their fidelity to the Union. It is morally certain that the formation of some general government, stronger and more efficient than any which had existed since the independence of the States had been declared, had become necessary to the continued existence of the Confederacy. It is equally certain, that, without the preservation of the Union, a condition of things must at once have ensued, out of which wars between the various provinces of America must have grown. The alternatives, therefore, that presented themselves to the generation by whom the Constitution was established, were either to devise a system of republican government that would answer the great purposes of a lasting union, or to resort to something in the nature of monarchy. With the latter, the institutions of the States must have been sooner or later crushed;--for they must either have crumbled away in the new combinations and fearful convulsions that would have preceded the establishment of such a power, or else they must have fallen speedily after its triumph had been settled. With the former alternative, the preservation of the States, and of all the needful institutions which marked their separate existence, though a difficult, was yet a possible result. To this preservation of the separate States we owe that power of minute local administration, which is so prominent and important a feature of our American liberty. To this we are indebted for those principles of self-government which place their own interests in the hands of the people of every distinct community, and which enable them, by means of their own laws, to defend their own particular institutions against encroachments from without. Finally, the Constitution of the United States made the people of these several provinces one nation, and gave them a standing among the nations of the world. Let any man compare the condition of this country at the peace of 1783, and during the four years which followed that event, with its present position, and he will see that he must look to some other cause than its merely natural and material resources to account for the proud elevation which it has now reached. He will see a people ascending, in the comparatively short period of seventy years, from an attitude in which scarcely any nation thought it worth while to treat with them, to a place among the four principal powers of the globe. He will see a nation, once of so little account and so little strength that the corsairs of the Mediterranean could prey unchecked upon its defenceless merchantmen, now opening to their commerce, by its overawing diplomacy and influence, an ancient empire, on the opposite side of the earth we inhabit, which has for countless ages been firmly closed against the whole world. He will first see a collection of thirteen feeble republics on the eastern coast of North America, inflicting upon each other the manifold injuries of rival and hostile legislation; and then again he will behold them grown to be a powerful confederacy of more than thirty States, stretching from the Atlantic to the Pacific, with all their commercial interests blended and harmonized by one superintending legislature, and protected by one central and preponderating power. He will see a people who had at first achieved nothing but independence, and had contributed nothing to the cause of free government but the example of their determination to enjoy it, founding institutions to which mankind may look for hope, for encouragement and light. He will see the arts of peace--commerce, agriculture, manufactures, jurisprudence, letters--now languishing beneath a civil polity inadequate and incompetent, and now expanding through a continent with an energy and force unexampled in the history of our race,--subduing the farthest recesses of nature, and filling the wilderness with the beneficent fruits of civilization and Christianity. Surveying all this,--looking back to the period which is removed from him only by the span of one mortal life, and looking around and before him, he will see, that among the causes of this unequalled growth stands prominent and decisive, far over all other human agencies, the great code of civil government which the fathers of our republic wrought out from the very perils by which they were surrounded. It is for the purpose of tracing the history of the period in which those perils were encountered and overcome, that I have written this work. But in doing it, I have sought to write as an American. For it is, I trust, impossible to study the history of the Constitution which has made us what we are, by making us one nation, without feeling how unworthy of the subject--how unworthy of the dignity of History--would be any attempt to claim more than their just share of merit and renown for names or places endeared to us by local feeling or traditionary attachment. Historical writing that is not just, that is not impartial, that is not fearless,--looking beyond the interests of neighborhood, the claims of party, or the solicitations of pride,--is worse than useless to mankind. BOSTON, July, 1854. FOOTNOTE: [1] In citing the "Madison Papers," I have constantly referred to the edition contained in the fifth (supplementary) volume of Mr. Jonathan Elliot's "Debates," &c., because it is more accessible to general readers. The accuracy of that publication, and its full and admirable Index, make it a very important volume to be consulted in connection with the subject of this work. In this relation, I may suggest the desirableness of a new and carefully revised edition of the Journals of the old Congress;--an enterprise that should be the care of the national government. A great magazine of materials for our national history, from the first Continental Congress to the adoption of the Constitution, exists in those Journals. CONTENTS OF VOLUME FIRST. BOOK I. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE COMMENCEMENT OF THE REVOLUTION TO THE ADOPTION OF THE ARTICLES OF CONFEDERATION. CHAPTER I. 1774-1775. ORGANIZATION OF THE FIRST CONTINENTAL CONGRESS.--ORIGIN OF THE UNION.--SITUATION OF THE COLONIES BEFORE THE REVOLUTION. Page Political Organizations of the Colonies 3 Provincial Governments 4 Proprietary Governments 5 Charter Governments 5 Causes of the Revolution 6 Local Legislatures 7 Power of the Colonies to unite, asserted by the Revolution 8 Reasons why they were enabled to effect the Union 8 A General Congress 10 First Step towards it 11 Assembling of the Congress 13 Delegates 14 Method of Voting 15 Rights of the Colonies 16 Separation from Great Britain not contemplated 18 Relations of the Congress to the Country 19 Authority of Parliament 20 Declaration of Rights 22 Cessation of Exports and Imports 23 Another Congress proposed 25 Royal Government terminated in Massachusetts 25 Provincial Congress of Massachusetts 26 Battle of Lexington 27 CHAPTER II. 1775-1776. THE SECOND CONTINENTAL CONGRESS.--FORMATION AND CHARACTER OF THE REVOLUTIONARY GOVERNMENT.--APPOINTMENT OF A COMMANDER-IN-CHIEF.--FIRST ARMY OF THE REVOLUTION. New Continental Congress 28 Delegates 29 Colonies represented 29 Duration of this Congress 30 War commenced 31 Massachusetts and New York apply to the Congress for Direction and Assistance 31 The Congress proceeds to put the Country into a State of Defence 32 American Continental Army created 32 Washington chosen Commander-in-Chief 33 Measures to defray the Expenses of War 34 Treasury Department established 35 General Post-office organized 35 Militia 35 Relations with Indian Tribes 35 Royalists 36 The Congress advise Provisional Governments 37 Separation from England determined upon 38 Suppression of the Royal Authority 39 National Union formed before the State Governments 39 The Revolutionary Government 40 Note on Washington's Appointment as Commander-in-Chief 41 CHAPTER III. 1776-1777. CONTINUANCE OF THE REVOLUTIONARY GOVERNMENT.--DECLARATION OF INDEPENDENCE.--PREPARATIONS FOR A NEW GOVERNMENT.--FORMATION OF THE CONTINENTAL ARMY. Independence proposed 49 Committee to prepare the Declaration 50 Instructions to the Delegates 51 Declaration adopted 51 Consequences of its Adoption 51 The Title "United States of America" first used 52 Articles of Confederation proposed 53 The Revolutionary Congress, the Real Government 54 Power of the Congress 55 General Washington's Position 55 Difficulties which he had to encounter 56 Machinery of Government defective 57 Formation of the Army 58 Remodelling of the Army 59 Difficulties attending it 59 Committee appointed to confer with General Washington 60 Error of Short Enlistments 60 Washington does not concur in their Expediency 60 Powers of the National Government 62 Difficulties attending their Exercise 63 Popular Feeling about the Grievances 64 Tories 65 Officers of the Royal Government in New Hampshire seized 66 General Lee's Offer to seize the Tories of New York 66 He prepares to defend New York 67 Orders to disarm the Tories in Queen's County 68 Orders countermanded 68 Washington's Regret 69 His Directions to Lee 70 Tories of Queen's County arrested 71 Inhabitants of New York alarmed 71 Congress compelled to submit the Subject to the Colonial Authorities 72 Questions of Prize 73 Origin of the American Navy 73 Vessels fitted out to intercept the Enemy's Supplies 73 Falmouth burned 74 Letters of Marque and Reprisal 75 Prizes captured 75 Adjudication of Prizes 76 Delay in obtaining Decisions 77 Means of defraying the Public Expenses 77 Paper Money issued 78 Delay in Signing the Bills 79 Pressing Wants of the Army 79 Washington borrows Money of the Province of Massachusetts Bay 80 Defects of the Revolutionary Government 80 Jealousy of Standing Armies 80 Note on the Authorship of the Declaration of Independence 81 CHAPTER IV. JULY, 1776-NOVEMBER, 1777. CONSEQUENCES OF THE DECLARATION OF INDEPENDENCE.--REORGANIZATION OF THE CONTINENTAL ARMY.--FLIGHT OF THE CONGRESS FROM PHILADELPHIA.--PLAN OF THE CONFEDERATION PROPOSED. Effect of the Declaration of Independence 89 More vigorous and decisive Measures adopted by the Congress 90 Mischievous Adhesion to State Interests 90 History of the Army 91 General Washington abandons the City of New York 91 Writes to the President of Congress 91 He retreats to the Heights of Haerlem, and again appeals to Congress 92 The Congress organizes a new Army 92 Number of Battalions raised by each State 93 Inducements to enlist 93 Serious Defects in the Plan 93 Washington suggests a Remedy 94 Promotion of the Officers provided for 95 Another Defect in the Plan 95 Massachusetts and Connecticut offer further Pay to their Men 95 Washington remonstrates 96 Congress augments the Pay of the Army 96 Ill Effects of the System 96 Number of the American Forces near New York 96 Washington's Discouragement 97 His Situation and Trials 97 His Retreat through New Jersey 98 Loss of Philadelphia threatened 99 Washington asks for Extraordinary Powers from the Congress 100 Powers intrusted to him 100 Unsettled Condition of the Political System 101 The Congress apologizes to the Governors of the States 102 Inaccuracy of their Position 103 The States acquiesce in the Powers granted to Washington 104 Articles of Confederation pending in Congress 104 Eminent Men retire from Congress 104 Delegations of the States renewed 105 Striking Instance of State Jealousy 106 Washington requires an Oath of Allegiance to the United States 107 The Requisition denounced as improper 107 Its Propriety 108 Formation of a new Army 110 Embarrassments in the Formation of the Army 110 Persistence of the States in giving Extra Bounties 110 Bounty offered by Massachusetts 111 Army greatly reduced 111 Washington hindered in his Efforts to plan and carry out a Campaign 112 Applications for Troops to defend particular Neighborhoods 112 Battle of the Brandywine 113 The Congress leaves Philadelphia 113 Sir William Howe takes Possession of it 113 The Congress removes to Yorktown 113 They resolve to consider the Articles of Confederation 114 The Plan of a Confederacy submitted to the several Legislatures 114 Necessity for a National Government 114 End of the Revolutionary Government approaching 115 Want of a Civil Executive 115 States engaged in forming Governments 116 Colonies accustomed to the Business of Government 116 Practice of Representation familiar 117 Previous Political Training of the People 118 Distinctions between the Departments of Government 119 Ideas not yet applied to a General Government 120 Union of the People of the United States, as distinguished from a Union of the States, learned by a bitter Experience 122 First Stage in the Constitutional History of the Country 123 CHAPTER V. NOVEMBER, 1777-MARCH, 1781. ADOPTION OF THE ARTICLES OF CONFEDERATION.--CESSIONS OF WESTERN TERRITORY.--FIRST POLITICAL UNION OF THE STATES. Adoption of the Articles of Confederation 124 Causes which delayed the Adoption of the Confederation 125 Changes of the Members of Congress 126 The present Congress compared with that of 1776 127 Objections made to the Articles of Confederation 128 Propositions for Amendments rejected 129 Objection made by the State of New Jersey 129 Their Suggestion rejected 130 Claims of the Larger States to Vacant Lands 131 Objection of the Smaller States 131 Assent of Maryland to the Confederation withheld 133 New York authorizes its Delegates in Congress to limit the Western Boundaries of the State 134 Congress urges other States to surrender a Portion of their Claims 134 Generous Example of New Jersey 135 Delaware follows it 135 Maryland adopts the Articles of Confederation 136 Virginia yields her Claim to some of her Territory 137 Progress of the People of the United States towards a National Character 139 Security against a Dissolution of the Confederacy 140 CHAPTER VI. NATURE AND POWERS OF THE CONFEDERATION. Nature of the Government established by the Confederation 142 Provisions in the Confederation for the States as separate Communities 143 Form of Government established by it 143 The Confederation a League for Mutual Defence and Protection 144 Powers of Congress with regard to the External Relations of the Country 144 Powers of Congress with regard to Internal Affairs 145 Committee of the States to sit in the Recess of Congress 146 Restrictions imposed upon Congress 146 Revenues of the Country 147 No Provision for enforcing Measures adopted by Congress 148 The United States enter upon a New Era of Civil Polity 149 The Confederation demonstrates the Necessity for a more perfect Union 149 BOOK II. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE ADOPTION OF THE ARTICLES OF CONFEDERATION, IN 1781, TO THE PEACE OF 1783. CHAPTER I. 1781-1783. REQUISITIONS.--CLAIMS OF THE ARMY.--NEWBURGH ADDRESSES.--PEACE PROCLAIMED.--THE ARMY DISBANDED. Congress assembles under the Confederation 155 Treaty of Peace signed 155 Treaty of Alliance with France 156 Delay of the States in complying with the Requisitions of Congress 156 Washington addresses Letters to the States on the Subject of Finance, and completing their Quotas of Troops 157 Force of the Army 158 Discontents in the Army 158 The Newburgh Addresses 159 Congress votes an Establishment of Half-Pay for the Officers 160 Impracticable Adherence to the Principles of Civil Liberty 161 Provision for the Officers found to be inadequate 162 Congress recommends to the States to make Provision for the Officers and Soldiers 162 Pennsylvania places her Officers upon Half-Pay for Life 163 Congress pass a Resolve giving Half-Pay for Life to the Officers 163 Disappointment of the Officers 164 The Congress of the Confederation refuse to redeem the Pledge of the Revolutionary Congress 164 Officers offer to commute the Half-Pay for Life 165 Breach of Public Faith 166 Situation of Washington 167 Anonymous Address circulated among the Officers at Newburgh 168 Washington forbids an Assemblage at the Call of an Anonymous Paper 168 He appoints a Day to hear the Report of their Committee 168 The Officers again refer their Claims to the Consideration of Congress 169 Half-Pay commuted to Five Years' Full Pay 170 The Army disbanded 170 Value of the Votes which fixed the Compensation of the Officers 171 CHAPTER II. 1781-1783. FINANCIAL DIFFICULTIES OF THE CONFEDERATION.--REVOLUTIONARY DEBT.--REVENUE SYSTEM OF 1783. Public Debt of the United States 172 Congress recommend a Duty upon Importations 173 Office of Superintendent of Finance established 174 Rhode Island refuses to grant to Congress the Power of Levying Duties 174 Virginia repeals the Act by which she had granted this Power to Congress 175 No Means of paying the Public Debts 175 Another Plan for collecting Revenues recommended to the States 176 Strong Appeal to the People in Favor of it 177 Claims of the various Classes of the Public Creditors 178 Character of the United States involved 179 The Confederation a Government for Purposes of War 181 Its Great Defects 181 The Moral Feelings an Unsafe Reliance for the Operations of Government 183 Proofs of this in the History of the Confederation 184 Design of the Framers of the Revenue System 185 Claims of the Army 186 Wisdom of proposing a Scheme of Finance during the Continuance of the War 186 Influence of the Revenue System of 1783 188 The System of 1783 different from the Present Constitution 188 Note on the Half-Pay for the Officers of the Revolution 190 Note on the Newburgh Addresses 194 CHAPTER III. 1781-1783. OPINIONS AND EFFORTS OF WASHINGTON, AND OF HAMILTON.--DECLINE OF THE CONFEDERATION. Washington's Relations to the People of this Country 200 His Address to them on resigning his Office 201 His Views at the Close of the War 202 Hamilton's Opinions 203 His Advice and Suggestions 204 The Necessity for a Complete Sovereignty in Congress 204 Hamilton's Entry into Congress 206 Nature of a Federal Constitution not understood 206 Hamilton urges the Necessity of vesting the Appointment of Collectors of Revenue in the General Government 208 Ratio of Contribution by the States to the Treasury uncertain 210 Hamilton desires to change the Principle of the Confederation 211 Advises General Taxes to be collected under Continental Authority 212 An Attempt to substitute Specific Taxes on Land and Houses 212 It is determined to adopt Population as the Basis of Contribution 213 Hamilton's Views on a Peace Establishment 214 Committee to arrange the Details of such a System 215 An Army and Navy necessary 216 No Provision in the Articles of Confederation for their Maintenance during Peace 216 Hamilton advises Federal Provision for Defence 219 Congress driven from Philadelphia 220 Hamilton examines the Confederation 221 Its Defects 222, 223 He proposes to revise it 224 His Plan unsuccessful 224 Improvement in the Revenue System 225 Causes of the Decline of a National Spirit 226 Falling off in the Attendance of Members of Congress 226 Results of the Confederation 228 Its Defects displayed 229 Another Government necessary for the great Duties of Peace 230 BOOK III. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE PEACE OF 1783 TO THE FEDERAL CONVENTION OF 1787. CHAPTER I. JANUARY, 1784-MAY, 1787. DUTIES AND NECESSITIES OF CONGRESS.--REQUISITIONS ON THE STATES.--REVENUE SYSTEM OF 1783. State of the Union from 1783 to 1787 233 Dangers and Evils which existed during the Four Years after the War 234 A New Congress 235 Washington's Resignation 235 Congress urge the Attendance of absent Members 236 Ratification of the Treaty of Peace 237 Congress perpetually in Session during the War 238 Number of Delegates from each State 238 Low State of the Representation 239 Duties of the Government 240 Supplies for the Year 1784 240 How to be obtained 241 Old Requisitions unpaid 241 Supplies necessary for the Year 1785 242 Supplies necessary for the Year 1786 242 Rhode Island and New Jersey propose to pay their Quotas in their own Paper Currency 242 Inadequacy of Requisitions 243 States which had assented to the Revenue System in February, 1786 244 Congress make known the Public Embarrassments 245 Impost granted by all the States except New York 246 Argument used in Support of her Refusal 247 Hamilton's Answer to it 247 Congress recommend to New York to reconsider the Revenue System 247 The Governor refuses to summon the Legislature 247 Failure of the Revenue System 248 CHAPTER II. 1784-1787. INFRACTIONS OF THE TREATY OF PEACE. Provisions of the Treaty of Peace 249 Departure of the British Troops from the Atlantic Coast 249 Western Posts retained 249 Interests of British Subjects 250 Confiscated Property 250 Power of Confiscation belonging to the United States 252 Refugees 252 State Laws prohibiting the Recovery of British Debts 253 Articles of the Treaty infringed by New York 254, 255 Powers of the Government inadequate 255 Treaty of Peace 256 Violations of its Articles 257 Congress recommend to the States to repeal all Acts repugnant to the Treaty 258 The two Countries remain in the same Position 259 CHAPTER III. 1786-1787. NO SECURITY AFFORDED BY THE CONFEDERATION TO THE STATE GOVERNMENTS.--SHAYS'S REBELLION IN MASSACHUSETTS, AND ITS KINDRED DISTURBANCES. Defence against External Assaults, the Object of the Confederation 260 Construction of the State Constitutions 261 Fundamental Doctrine of the American Constitutions 262 Commencement of Discontents in Massachusetts 263 The Confederation without Power to act upon the Internal Condition of a State 264, 265 State Governments exposed to the Dangers of Anarchy 265 Insurrection in Massachusetts 266 Debt of that State at the Close of the War 266 Decrease of Exports and Fisheries 267 General Condition of the State 267, 268 Private Debts 268 The Tender Act 268 Effects of this Law 269 Shays's Rebellion 269 Firmness of Governor Bowdoin 270 Insurrection suppressed 270 Congress unable to interpose 271 Hostile Disposition of the Western Indians 271 Troops to be raised by the New England States 272 Extent of the Disaffection in New England 273 Beneficial Effect of these Disturbances 273 The Union necessary to the Preservation of Order 274 Washington's Anxieties 274 CHAPTER IV. ORIGIN AND NECESSITY OF THE POWER TO REGULATE COMMERCE. Inability of the Confederation to manage Foreign Commerce 276 Essential that it should be managed by the United States 277 Views of the Revolutionary Statesmen 277, 278 Commercial Relations of the United States with Foreign Countries 279 Negotiation of the Treaty with the Netherlands 280 Duties and Imposts 281 Congress without Power to enforce Treaty Stipulations upon the States 282 Relations of the United States with Great Britain 282 Measure of Mr. Pitt 282 Change of the English Administration 283 Mr. Pitt's Bill 283 Views of the New English Administration 283, 284 American Trade excluded from the British West Indies 284 The three great Branches of American Commerce 285 Congress apply to the States for further Powers 286 Action of the States thereupon 286 Success of Treaties dependent on the Grant of further Powers 287 Incongruities in the Grants of the several States 288 Failure of the Attempt to negotiate Commercial Treaties 289 Discordant Legislation of the States 290 CHAPTER V. 1783-1787. THE PUBLIC LANDS.--GOVERNMENT OF THE NORTHWESTERN TERRITORY.--THREATENED LOSS OF THE WESTERN SETTLEMENTS. Relations of Congress to the Public Lands 291 Efforts to procure Cessions from the States 292 Cession by New York 293 Disposal of the Territories 293 Power of Congress to acquire and hold Lands 293 Its Constitutional Authority to deal with acquired Territory 294 Cession of Northwestern Territory by Virginia 295 States to be formed from this Territory 296 Congress pass a Resolve for the Regulation of ceded Territory 296 Principles on which the Government of New States should be established 297 Provision for admitting New States into the Union 298 Compact between the Old and New States 299 The Public Lands the true Resources for the Payment of the Public Debt 299 Slavery to be excluded from the New States 299 Cession by Massachusetts and Connecticut of a Portion of their Territorial Claims 299, 300 Modification by Virginia of her Act of Cession 300 Cession of Lands by South Carolina 301 No other Lands ceded to the United States before 1787 301 Ordinance for the Government of the Northwestern Territory enacted 302 Its Provisions concerning Property 302 Civil Government of the Territory 303 Laws to be adopted 303 Appointment of Civil Officers 304 Counties and Townships to be formed 304 Representation in the Legislature provided for 304 Articles of Compact between the Original States and the People and States in the Territory 305, 306 Wisdom of this Scheme of Government 306, 307 Political Difficulties in the Management of this Territory 308 Threatened Loss of the Western Settlements 309, 310 Washington's Plan of uniting the Eastern and Western States 310 He considers the Opening of the Mississippi not important 311 The Southern Boundary of the United States, by the Treaty of Peace 312 Secret Article in that Treaty 312 Spain refuses to concede the Navigation of the Mississippi 313 Arrival of Guardoqui as Minister from Spain 313 The United States insist on the Right to navigate the Mississippi 314 The Right refused, but a Commercial Treaty tendered 314 Importance of this Treaty 314 The States divided with Regard to the Mississippi 314, 315 Mr. Jay proposes a Middle Course 315 Treaty to be limited to Twenty-five Years 316 Use of the River to be suspended for the same Period 316 Change in Mr. Jay's Instructions 317 Seizure of American Property at Natchez 318 Inhabitants of the Western Settlements alarmed 318 Richness of their Territory 319 Their Complaints of Congress 320 Their Resolves 321 Retaliatory Seizure of Spanish Property 322 The Executive of Virginia disavows the Act 322 Guardoqui adheres to his Position 323 Committees of Correspondence formed in the West 323 The Inhabitants of Kentucky in Motion 323 Remonstrances of Virginia on the Subject of shutting up the Mississippi 323 Their Delegates intercede with the Spanish Minister 324 Their Efforts ineffectual 324 The Vote of Seven States attacked in Congress 325 Unconstitutionality of that Vote 325, 326 It is not rescinded 326 Critical Position of the Country 326 The Subject of the Mississippi postponed to await the Action of the Federal Convention 326, 327 CHAPTER VI. 1783-1787. DECAY AND FAILURE OF THE CONFEDERATION.--PROGRESS OF OPINION.--STEPS WHICH LED TO THE CONVENTION OF 1787.--INFLUENCE AND EXERTIONS OF HAMILTON.--MEETING OF THE CONVENTION. The Federal Power under the Confederation unequal to the Discharge of its Duties 328 The Confederation destitute of Political Sovereignty 329 Capacities of the Country 330 Difficulties in the Formation of a Federal Constitution 331 Progress of Opinion upon the Subject of a General Government 332, 333 Important Centres of Opinion 334 Action of Massachusetts 334 Distress pervading the Commercial Classes 334, 335 Governor Bowdoin's Message 336 The Legislature recommend a General Convention 336, 337 Their Delegates in Congress refuse to present the Resolves 337 Congress desire only a Temporary Power over Commerce 337 Jealousy in Congress of the Changes likely to be made in the Government 338 The Legislature of Massachusetts rescind their Resolutions 339 Condition of Congress in 1785 339 Action of Virginia 340 Proposed Enlargement of the Powers of Congress over Trade 340 Difficulties between the Citizens of Virginia and Maryland 341 Meeting at Alexandria 341 Report of the Commissioners of Virginia and Maryland to their Governments 342 Virginia invites a Meeting of Commissioners from all the States at Annapolis 343 Action of New York 343 Final Appeal by Congress for the Establishment of the Revenue System of 1783 344 Exertions of Hamilton 345 The Revenue System again rejected by the New York Legislature 346 Commissioners appointed by New York to attend the Commercial Convention 346 Course of New York upon the Revenue System 346 Five States only represented at Annapolis 347 Hamilton's Original Plan, and its Modification 347, 348 His Report 348 He desires an entirely New System of Government 349 Caution in his Proposal 350 His extensive Views 350 Reception of the Recommendation of the Annapolis Commissioners in Virginia 351 Objections to it in Congress 352-355 Report of the Commissioners taken into Consideration 355 Opinions of different Members upon the Subject 355 Legal Difficulties in the Way of a Convention 356 Views entertained in Congress 357 Critical State of the Country 357, 358 It impels Congress to Action 358 Influence of the Course of New York upon Congress 358, 359 Their Delegation instructed to move a Convention 360 Failure of this Proposition 360 Adoption of a Resolve proposed by the Massachusetts Members for the same Purpose 361 Mode of Amendment recommended by Congress 362 Importance of this Action of Congress 362 Dangers of Inaction 363 Importance of the Sanction of the Old Government, in the Formation of a new one 364 Hamilton's Wisdom 365 Reason for not intrusting the Revision of the System of Government to Congress 365, 366 Powers of the Convention not defined by Congress 367 Nature of the Crisis 368 Danger of an Attempt to establish Monarchical Government 369 Washington's Opinions 370, 371 Other Difficulties attending the Revision of the Federal System 371 Sectional Jealousy and its Causes 371, 372 New Idea of a Union 372, 373 Prevailing Feeling among Statesmen concerning the Convention 373 Hamilton fully equal to the Demands of the Crisis 373, 374 Assembling of the Convention 374 Novelty of their Undertaking 374, 375 State of Political Science in Modern Europe 375 The Results of English Liberty 376, 377 French Discussions 377, 378 The English Constitution an imperfect Guide 378 Nature of the Problem 379 CHAPTER VII. THE FRAMERS OF THE CONSTITUTION.--WASHINGTON, PRESIDENT OF THE CONVENTION. Embarrassments attending the Assembling of the Convention 380 Discipline to which the American People had been subjected 381, 382 The Constitution the Result of Circumstances 382 Consequences of a Want of Power in the First Government 383 Its Incapacity 384 Sufferings of the People 384 Civil Liberty the Result of Trial and Suffering 385, 386 Qualities of the Framers of the Constitution 386, 387 Hamilton 387 Washington 388 Madison 388 Franklin 388 Gouverneur Morris 388 Their Characters formed during the Revolution 388, 389 Diversities of Opinion in such an Assembly 389 Patriotism of its Members 390 A Republican System their great Object 390 Slight Value of the Examples of other Countries 391 Necessity for a National Head 392 The New Government established without Violence 393 Washington at Mount Vernon 393, 394 His Opinions upon the Powers of the Federal Government 394-396 His Fears as to the Result of a Convention 396, 397 The Legislature of Virginia desire to place him at the Head of their Delegation 397 Refuses informally 398 Declines a Re-election as President of the Society of the Cincinnati 398 Receives Official Notice of his Appointment to the Convention 399 Declines the Appointment 399 The Insurrection in Massachusetts changes his Determination 399, 400 He leaves Mount Vernon for Philadelphia 401 Is elected President of the Convention 401 His great Object, to secure a Republican Government 402 The Idea of a Monarchical Government entertained to some Extent 402 Coercive Power necessary in the General Government 403 Washington's Character as a Statesman 404 His Fitness for the Chair of the Convention 405 CHAPTER VIII. HAMILTON. Causes why Hamilton is less known at the present Day, than other Statesmen of the Revolution 406 Immediate Effect of his Death upon the Country 407 His Birth and Education 408 Very early Entrance upon Political Life 408 His Essays on the Rights of the Colonies 408 Appointed Aide-de-Camp to Washington 409 Elected to Congress from New York 409 A Member of the Legislature 409 Delegate to the Federal Convention 409 One of the Authors of the Federalist 409 Elected to the State Convention 409 Secretary of the Treasury 409 Retirement 409 Command of the Provisional Army 409 Practice of the Law 409 Death 409, 410 Character 410-419 CHAPTER IX. MADISON. His Birth and Education 420 Entrance into Congress 421 His Influence in inducing Virginia to yield the Northwest Territory 422 Other important Services in the Congress of the Confederation 422, 423 Retires to Virginia 423 Efforts for the Enlargement of Commercial Powers 423, 424 His Connection with the Events which led to the Convention 424-427 Appointed one of the Commissioners to Annapolis 427 Drafts the Act of Virginia appointing Delegates to the Federal Convention 427 His Labors in the Convention 427, 428 Records the Debates 428 His Character 428-431 CHAPTER X. FRANKLIN. His long Career of Public Service 433, 434 His distinguished Residences abroad 434, 435 Importance and Influence of his Presence in the Convention 435-437 His Objections to the Constitution 437 Sacrifices them to the Public Good 437 His Efforts to produce Unanimity 437, 438 CHAPTER XI. GOUVERNEUR MORRIS. Birth and Education 440 Views on the Independence of America 441 Services in Congress 442 Appointed Assistant Financier 443 Elected to the Federal Convention 444 His Character 444-447 CHAPTER XII. KING. Birth and Education 448 Elected to Congress 448 His Opinions on the Subject of a Federal Convention 449 His Views of the Insurrection in Massachusetts 450 Disappointment concerning the Powers of the Confederation 450 Change of Opinion 450, 451 View of the true Principle for the new Government 451 Introduces the Prohibition against Laws affecting the Obligation of Contracts 452 His Character 453 CHAPTER XIII. CHARLES COTESWORTH PINCKNEY. Descent and Education 454 Military Career 454 Appointed to the Federal Convention 455 His Course on the Slave-Trade, and the Regulation of Commerce 456 Vindication of the Framers of the Constitution 456-460 Note on the Abolition of the Slave-Trade 460 CHAPTER XIV. WILSON. Birth and Education 462 Emigration to America 462 Services in Congress 462, 463 His Opinions in the Convention 463, 464 Exertions for a Representative Government 464 Appointed Judge of the Supreme Court of the United States 465 His Speech on the Constitution in the Pennsylvania Convention 465-479 CHAPTER XV. RANDOLPH. An Aide-de-camp to Washington 480 Services in Congress 480 Elected Governor of Virginia 481 Procures the Attendance of Washington 481 His Opinions on the Constitution, and the existing Crisis 481-485 Genealogy 485 CHAPTER XVI. CONCLUSION OF THE PRESENT VOLUME. The Other Members of the Convention 486, 487 Responsible Position of the American People 487, 488 APPENDIX. Circular Letter of Congress recommending the Articles of Confederation 491 Representation of New Jersey on the Articles of Confederation 493 Act of New Jersey accepting the Confederation 497 Resolutions passed by the Council of Delaware respecting the Articles of Confederation 498 Act to authorize the Delegates of the Delaware State to ratify the Articles of Confederation 500 Instructions of the General Assembly of Maryland to their Delegates, respecting the Articles of Confederation 501 Act of the Legislature of New York, to facilitate the Completion of the Articles of Confederation and Perpetual Union among the United States of America 505 Report of the Committee of Congress as to the Proceedings of the Legislatures of Maryland, New York, and Virginia in Relation to the Articles of Confederation 506 Act to empower the Delegates of Maryland to ratify the Articles of Confederation 508 Articles of Confederation and Perpetual Union between the States 509 Members of the Convention which formed the Constitution 516 BOOK I. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE COMMENCEMENT OF THE REVOLUTION TO THE ADOPTION OF THE ARTICLES OF CONFEDERATION. CHAPTER I. 1774-1775. ORGANIZATION OF THE FIRST CONTINENTAL CONGRESS.--ORIGIN OF THE UNION. The thirteen British colonies in North America, by whose inhabitants the American Revolution was achieved, were, at the commencement of that struggle, so many separate communities, having, to a considerable extent, different political organizations and different municipal laws: but their various populations spoke almost universally the English language. These colonies were Virginia, Massachusetts, New Hampshire, Connecticut, Rhode Island, Maryland, New York, New Jersey, Pennsylvania, Delaware, North Carolina, South Carolina, and Georgia. From the times when they were respectively settled, until the union formed under the necessities of a common cause at the breaking out of the Revolution, they had no political connection; but each possessed a domestic government peculiar to itself, derived directly from the crown of England, and more or less under the direct control of the mother country. The political organizations of the colonies have been classed by jurists and historians under the three heads of Provincial, Proprietary, and Charter governments. To the class of Provincial governments belonged the Provinces of New Hampshire, New Jersey, Virginia, the two Carolinas, and Georgia. These had no other written constitutions, or fundamental laws, than the commissions issued to the Governors appointed by the crown, explained by the instructions which accompanied them. The Governor, by his commission, was made the representative or deputy of the King, and was obliged to act in conformity with the royal instructions. He was assisted by a Council, the members of which, besides participating with him, to a certain extent, in the executive functions of the government, constituted the upper house of the provincial legislature; and he was also authorized to summon a general assembly of representatives of the freeholders of the Province. The three branches thus convened, consisting of the Governor, the Council, and the Representatives, constituted the provincial Assemblies, having the power of local legislation, subject to the ratification and disapproval of the crown. The direct control of the crown over these provincial governments may also be traced in the features, common to them all, by which the Governor had power to suspend the members of the Council from office, and, whenever vacancies occurred, to appoint to those vacancies, until the pleasure of the crown should be known; to negative all the proceedings of the assembly; and to prorogue or dissolve it at his pleasure. The Proprietary governments, consisting of Maryland, Pennsylvania, and Delaware, were those in which the subordinate powers of legislation and government had been granted to certain individuals called the proprietaries, who appointed the Governor and authorized him to summon legislative assemblies. The authority of the proprietaries, or of the legislative bodies assembled by the Governor, was restrained by the condition, that the ends for which the grant was made to them by the crown should be substantially pursued in their legislation, and that nothing should be done, or attempted, which might derogate from the sovereignty of the mother country. In Maryland, the laws enacted by the proprietary government were not subject to the direct control of the crown; but in Pennsylvania and Delaware they were.[2] The Charter governments, consisting, at the period of the Revolution, of Massachusetts, Rhode Island, and Connecticut, may be said, in a stricter sense, to have possessed written constitutions for their general political government. The charters, granted by the crown, established an organization of the different departments of government similar to that in the provincial governments. In Massachusetts, after the charter of William and Mary granted in 1691, the Governor was appointed by the crown; the Council were chosen annually by the General Assembly, and the House of Representatives by the people. In Connecticut and Rhode Island, the Governor, Council, and Representatives were chosen annually by the freemen of the colony. In the charter, as well as the provincial governments, the general power of legislation was restrained by the condition, that the laws enacted should be, as nearly as possible, agreeable to the laws and statutes of England. One of the principal causes which precipitated the war of the Revolution was the blow struck by Parliament at these charter governments, commencing with that of Massachusetts, by an act intended to alter the constitution of that Province as it stood upon the charter of William and Mary; a precedent which justly alarmed the entire continent, and in its principle affected all the colonies, since it assumed that none of them possessed constitutional rights which could not be altered or taken away by an act of Parliament. The "Act for the better regulating the government of the Province of Massachusetts Bay," passed in 1774, was designed to create an executive power of a totally different character from that created by the charter, and also to remodel the judiciary, in order that the laws of the imperial government might be more certainly enforced. The charter had reserved to the King the appointment of the Governor, Lieutenant-Governor, and Secretary of the Province. It vested in the General Assembly the choice of twenty-eight councillors, subject to rejection by the Governor; it gave to the Governor, with the advice and consent of the Council, the appointment of all military and judicial officers, and to the two houses of the legislature the appointment of all other civil officers, with a right of negative by the Governor. The new law vested the appointment of councillors, judges, and magistrates of all kinds, in the crown, and in some cases in the Governor, and made them all removable at the pleasure of the crown. A change so radical as this, in the constitution of a people long accustomed to regard their charter as a compact between themselves and the crown, could not but lead to the most serious consequences. * * * * * The statements which have now been made are sufficient to remind the reader of the important fact, that, at the commencement of the Revolution, there existed, and had long existed, in all the colonies, local legislatures, one branch of which was composed of representatives chosen directly by the people, accustomed to the transaction of public business, and being in fact the real organs of the popular will. These bodies, by virtue of their relation to the people, were, in many instances, the bodies which took the initiatory steps for the organization of the first national or Continental Congress, when it became necessary for the colonies to unite in the common purpose of resistance to the mother country. But it should be again stated, before we attend to the steps thus taken, that the colonies had no direct political connection with each other before the Revolution commenced, but that each was a distinct community, with its own separate political organization, and without any power of legislation for any but its own inhabitants; that, as political communities, and upon the principles of their organizations, they possessed no power of forming any union among themselves, for any purpose whatever, without the sanction of the Crown or Parliament of England.[3] But the free and independent power of forming a union among themselves, for objects and purposes common to them all, which was denied to their colonial condition by the principles of the English Constitution, was one of the chief powers asserted and developed by the Revolution; and they were enabled to effect this union, as a revolutionary right and measure, by the fortunate circumstances of their origin, which made the people of the different colonies, in several important senses, one people. They were, in the first place, chiefly the descendants of Englishmen, governed by the laws, inheriting the blood, and speaking the language of the people of England. As British subjects, they had enjoyed the right of dwelling in any of the colonies, without restraint, and of carrying on trade from one colony to another, under the regulation of the general laws of the empire, without restriction by colonial legislation. They had, moreover, common grievances to be redressed, and a common independence to establish, if redress could not be obtained: for although the precise grounds of dispute with the Crown or the Parliament of England had not always been the same in all the colonies, yet when the Revolution actually broke out, they all stood in the same attitude of resistance to the same oppressor, making common cause with each other, and resting upon certain great principles of liberty, which had been violated with regard to many of them, and with the further violation of which all were threatened. * * * * * It was while the controversies between the mother country and the colonies were drawing towards a crisis, that Dr. Franklin, then in England as the political agent of Pennsylvania, of Massachusetts, and of Georgia, in an official letter to the Massachusetts Assembly, dated July 7th, 1773, recommended the assembling of a general congress of all the colonies. "As the strength of an empire," said he, "depends not only on the _union_ of its parts, but on their readiness for united exertion of their common force; and as the discussion of rights may seem unseasonable in the commencement of actual war, and the delay it might occasion be prejudicial to the common welfare; as likewise the refusal of one or a few colonies would not be so much regarded, if the others granted liberally, which perhaps by various artifices and motives they might be prevailed on to do; and as this want of concert would defeat the expectation of general redress, that might otherwise be justly formed; perhaps it would be best and fairest for the colonies, in a general congress now in peace to be assembled, or by means of the correspondence lately proposed, after a full and solemn assertion and declaration of their rights, to engage firmly with each other, that they will never grant aids to the crown in any general war, till those rights are recognized by the King and both houses of Parliament; communicating at the same time to the crown this their resolution. Such a step I imagine will bring the dispute to a crisis."[4] The first actual step towards this measure was taken in Virginia. A new House of Burgesses had been summoned by the royal Governor to meet in May, 1774. Soon after the members had assembled at Williamsburg, they received the news that, by an act of Parliament, the port of Boston was to be closed on the first day of the succeeding June, and that other disabilities were to be inflicted on the town. They immediately passed an order, setting apart the first day of June as a day of fasting, humiliation, and prayer, "to implore the Divine interposition for averting the heavy calamity which threatened destruction to their civil rights, and the evils of civil war, and to give them one heart and one mind firmly to oppose, by all just and proper means, every injury to American rights." Thereupon, the Governor dissolved the House. But the members immediately assembled at another place of meeting, and, having organized themselves as a committee, drew up and subscribed an Association, in which they declared that the interests of all the colonies were equally concerned in the late doings of Parliament, and advised the local Committee of Correspondence to consult with the committees of the other colonies on the expediency of holding a general Continental Congress. Pursuant to these recommendations, a popular convention was holden at Williamsburg, on the 1st of August, which appointed seven persons as delegates to represent the people of Virginia in a general Congress to be held at Philadelphia in the September following.[5] The Massachusetts Assembly met on the last of May, and, after negativing thirteen of the Councillors, Governor Gage adjourned the Assembly to meet at Salem on the 7th of June. When they came together at that place, the House of Representatives passed a resolve, declaring a meeting of committees from the several colonies on the continent to be highly expedient and necessary, to deliberate and determine upon proper measures to be recommended to all the colonies for the recovery and establishment of their just rights and liberties, civil and religious, and for the restoration of union and harmony with Great Britain. They then appointed five delegates[6] to meet the representatives of the other colonies in congress at Philadelphia, in the succeeding September. These examples were at once followed by the other colonies. In some of them, the delegates to the Continental Congress were appointed by the popular branch of the legislature, acting for and in behalf of the people; in others, they were appointed by conventions of the people called for the express purpose, or by committees duly authorized to make the appointment.[7] The Congress, styling themselves "the delegates appointed by the good people of these colonies," assembled at Philadelphia on the 5th of September, 1774, and organized themselves as a deliberative body by the choice of officers and the adoption of rules of proceeding. Peyton Randolph of Virginia was elected President, and Charles Thompson of Pennsylvania Secretary of the Congress. No precedent existed for the mode of action to be adopted by this assembly. There was, therefore, at the outset, no established principle which might determine the nature of the union; but that union was to be shaped by the new circumstances and relations in which the Congress found itself placed. There had been no general concert among the different colonies as to the numbers of delegates, or, as they were called in many of the proceedings, "committees" of the colonies, to be sent to the meeting at Philadelphia. On the first day of their assembling, Pennsylvania and Virginia had each six delegates in attendance; New York had five; Massachusetts, New Jersey, and South Carolina had four each; Connecticut had three; New Hampshire, Rhode Island, Delaware, and Maryland had two each. The delegates from North Carolina did not arrive until the 14th.[8] As soon as the choice of officers had taken place,[9] the method of voting presented itself as the first thing to be determined; and the difficulties arising from the inequalities between the colonies in respect to actual representation, population, and wealth, had to be encountered upon the threshold. Insuperable obstacles stood in the way of the adoption of interests as the basis of votes. The weight of a colony could not be ascertained by the numbers of its inhabitants, the amount of their wealth, the extent of their trade, or by any ratio to be compounded of all these elements, for no authentic evidence existed from which data could be taken.[10] As it was apparent, however, that some colonies had a larger proportion of members present than others, relatively to their size and importance, it was thought to be equally objectionable to adopt the method of voting by polls. In these circumstances, the opinion was advanced, that the colonial governments were at an end; that all America was thrown into one mass, and was in a state of nature; and consequently, that the people ought to be considered as represented in the Congress according to their numbers, by the delegations actually present.[11] Upon this principle, the voting should have been by polls. But neither the circumstances under which they were assembled, nor the dispositions of the members, permitted an adoption of the theory that all government was at an end, or that the boundaries of the colonies were effaced. The Congress had not assembled as the representatives of a people in a state of nature, but as the committees of different colonies, which had not yet severed themselves from the parent state. They had been clothed with no legislative or coercive authority, even of a revolutionary nature; compliance with their resolves would follow only on conviction of the utility of their measures; and all their resolves and all their measures were, by the express terms of many of their credentials, limited to the restoration of union and harmony with Great Britain, which would of course leave the colonies in their colonial state. The people of the continent, therefore, as a people in the state of nature, or even in a national existence as one people standing in a revolutionary attitude, had not then come into being. The nature of the questions, too, which they were to discuss, and of the measures which they were to adopt, were to be considered in determining by what method of voting those questions and measures should be decided. The Congress had been called to secure the _rights_ of the colonies. What were those rights? By what standard were they to be ascertained? By the law of nature, or by the principles of the English Constitution, or by the charters and fundamental laws of the colonies, regarded as compacts between the crown and the people, or by all of these combined? If the law of nature alone was to determine their rights, then all allegiance to the British crown was to be regarded as at an end. If the principles of the English Constitution, or the charters, were to be the standard, the law of nature must be excluded from consideration. This exclusion would of necessity narrow the ground, and deprive them of a resource to which Parliament might at last compel them to look.[12] In order, therefore, to leave the whole field open for consideration, and at the same time to avoid committing themselves to principles irreconcilable with the preservation of allegiance and their colonial relation to Great Britain, it was necessary to consider themselves as an assembly of committees from the different colonies, in which each colony should have one voice, through the delegates whom it had sent to represent and act for it. But, as if foreseeing the time when population would become of necessity the basis of congressional power, when the authority of Parliament should have given place to a system of American continental legislation, they inserted, in the resolve determining that each colony should have one vote, a caution that would prevent its being drawn into precedent. They declared, as the reason for the course which they adopted, that the Congress were not possessed of, or able to procure, the proper materials for ascertaining the importance of each colony.[13] It appears, therefore, very clear, that an examination of the relations of the first Congress to the colonies which instituted it will not enable us to assign to it the character of a government. Its members were not elected for the express purpose of making a revolution. It was an assembly convened from separate colonies, each of which had causes of complaint against the imperial government to which it acknowledged its allegiance to be due, and each of which regarded it as essential to its own interests to make common cause with the others, for the purpose of obtaining redress of its own grievances. The idea of separating themselves from the mother country had not been generally entertained by the people of any of the colonies. All their public proceedings, from the commencement of the disputes down to the election of delegates to the first Congress, including the instructions given to those delegates, prove, as we have seen, that they looked for redress and relief to means which they regarded as entirely consistent with the principles of the British Constitution.[14] Still, although this Congress did not take upon themselves the functions of a government, or propose revolution as a remedy for the wrongs of their constituents, they regarded and styled themselves as "the guardians of the rights and liberties of the colonies";[15] and in that capacity they proceeded to declare the causes of complaint, and to take the necessary steps to obtain redress, in what they believed to be a constitutional mode. These steps, however, although not directly revolutionary, had a revolutionary tendency. On the 6th of September, 1774, a resolve was passed, that a committee be appointed to state the rights of the colonies in general, the several instances in which those rights had been violated or infringed, and the means most proper to be pursued for obtaining a restoration of them. Another committee was ordered on the same day, to examine and report the several statutes affecting the trade and manufactures of the colonies. On the following day, it was ordered that the first committee should consist of two members, and the second of one member, from each of the colonies.[16] Two questions presented themselves to the first of these committees, and created a good deal of embarrassment. The first was, whether, in stating the rights of the colonies, they should recur to the law of nature, as well as to the British Constitution and the American charters and grants. The second question related to the authority which they should allow to be in Parliament;--whether they should deny it wholly, or deny it only as to internal affairs, admitting it as to external trade; and if the latter, to what extent and with what restrictions. It was soon felt that this question of the authority of Parliament was the essence of the whole controversy. Some denied it altogether. Others denied it as to every species of taxation; while others admitted it to extend to the regulation of external trade, but denied it as to all internal affairs. The discussions had not proceeded far, before it was perceived that this subject of the regulation of trade might lead directly to the question of the continuance of the colonial relations with the mother country. For this they were not prepared. It was apparent that the right of regulating the trade of the whole country, from the local circumstances of the colonies and their disconnection with each other, could not be exercised by the colonies themselves: it was thought that the aid, assistance, and protection of the mother country were necessary to them; and therefore, as a proper equivalent, that the colonies must admit the right of regulating the trade, to some extent and in some mode, to be in Parliament. The alternatives were, either to set up an American legislature, that could control and regulate the trade of the whole country, or else to give the power to Parliament. The Congress determined to do the latter; supposing that they could limit the admission, by denying that the power extended to taxation, but ceding at the same time the right to regulate the external trade of the colonies for the common benefit of the whole empire.[17] They grounded this concession upon "the necessities of the case," and "the mutual interests of both countries";[18] meaning by these expressions to assert that all legislative control over the external and internal trade of the colonies belonged of right to the colonies themselves, but, as they were part of an empire for which Parliament legislated, it was necessary that the common legislature of the whole empire should retain the regulation of the external trade, excluding all power of taxation for purposes of revenue, in order to secure the benefits of the trade of the whole empire to the mother country. The Congress, therefore, after having determined to confine their statement to such rights as had been infringed by acts of Parliament since the year 1763, unanimously adopted a Declaration of Rights, in which they summed up the grievances and asserted the rights of the colonies. This document placed the rights of the colonies upon the laws of nature, the principles of the English Constitution, and the several charters or compacts. It declared, that, as the colonies were not, and from their local situation could not be, represented in the English Parliament, they were entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation could alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as had been before accustomed. At the same time, from the necessity of the case and from a regard to the mutual interests of both countries, they cheerfully consented to the operation of such acts of Parliament as were in good faith limited to the regulation of their external commerce, for the purpose of securing the commercial advantages of the whole to the mother country, and the commercial benefit of its respective members; excluding every idea of taxation, internal and external, for raising a revenue on the subjects in America, without their consent.[19] In addition to this, they asserted, as great constitutional rights inherent in the people of all these colonies, that they were entitled to all the rights, liberties, and immunities of free and natural-born subjects within the realm of England; to the common law of England, and especially to trial by a jury of the vicinage; to the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws; and to the right of peaceably assembling to consider grievances and to petition the King.[20] In order to enforce their complaints upon the attention of the government and people of Great Britain, and as the sole means which were open to them, short of actual revolution, of coercing the ministry into a change of measures, they resolved that after the 10th of September, 1775, the exportation of all merchandise, and every commodity whatsoever, to Great Britain, Ireland, and the West Indies, ought to cease, unless the grievances of America should be redressed before that time; and that after the first day of December, 1774, there should be no importation into British America, from Great Britain or Ireland, of any goods, wares, or merchandise whatever, or from any other place, of any such goods, wares, or merchandise as had been exported from Great Britain or Ireland, and that no such goods, wares, or merchandise be used or purchased.[21] They then prepared an association, or agreement, of non-importation, non-exportation, and non-consumption, in order, as far as lay in their power, to cause a general compliance with their resolves. This association was subscribed by every member of the Congress, and was by them recommended for adoption to the people of the colonies, and was very generally adopted and acted upon.[22] They resorted to this as the most speedy, effectual, and peaceable measure to obtain a redress of the grievances of which the colonies complained; and they entered into the agreement on behalf of the inhabitants of the several colonies for which they acted. * * * * * This Congress, which sat from the 5th of September to the 26th of October, 1774, had thus made the restoration of commercial intercourse between the colonies and the other parts of the British empire to depend upon the repeal by Parliament of the obnoxious measures of which they complained, and upon the recognition of the rights which they asserted; for although their acts had not the foundation of laws, the general adoption of their recommendations throughout the colonies gave them a power that laws rarely possess. Before they adjourned, they recommended that another Congress of all the colonies should be held at Philadelphia on the 10th of the following May, unless their grievances were redressed before that time, and that the deputies to such new Congress should be chosen immediately.[23] But while the Continental Congress were engaged in the adoption of these measures of constitutional resistance, and still acknowledged their colonial relations to the imperial government, the course of events in Massachusetts had put an end to the forms of law and government in that colony, as established or upheld by imperial authority. The last Assembly held in the Province upon the principles of its charter had been dissolved by the Governor's proclamation, at Salem, on the 17th of June, 1774. The new law for the alteration of the government had taken effect; and in August the Governor received from England a list of thirty-six councillors, who were to be called into office by the King's writ of _mandamus_, instead of being elected, as under the charter, by the House of Representatives. Two thirds of the number accepted their appointment; but popular indignation, treating them as enemies of their country, compelled the greater part of them to renounce their offices. The new judges were prevented everywhere from proceeding with the business of the courts, which were obstructed by assemblies of the people, who would permit no judge to exercise his functions, save in accordance with the ancient laws and usages of the Colony. Writs had been issued for a new General Assembly, which was to meet at Salem in October; but it was found, that, while the old constitution had been taken away by act of Parliament, the new one had been rejected by the people. The compulsory resignation of so many of the councillors left that body without power, and the Governor deemed it expedient to countermand the writs by proclamation, and to defer the holding of the Assembly until the popular temper should have had time to cool. But the legality of the proclamation was denied; the elections were everywhere held, and the members elect assembled at Salem, pursuant to the precepts. There they waited a day for the Governor to attend, administer the oaths, and open the session; but as he did not appear, they resolved themselves into a Provincial Congress, to be joined by others who had been or might be elected for that purpose, and adjourned to the town of Cambridge, to take into consideration the affairs of the Colony, in which the regular and established government was now at an end. Their acts were at first couched in the form of recommendations to the people, whose ready compliance gave to them the weight and efficacy of laws, and there was thus formed something like a new and independent government. Under the form of recommendation and advice, they settled the militia, regulated the public revenue, provided arms, and prepared to resist the British troops. In December, 1774, they elected five persons to represent the Colony in the Continental Congress that was to assemble at Philadelphia in the ensuing May. They were met by a proclamation, issued by the Governor, in which their assembly was declared unlawful, and the people were prohibited, in the King's name, from complying with their recommendations, requisitions, or resolves. Through the winter, the Governor held the town of Boston, with a considerable body of royal troops, but the rest of the Province generally yielded obedience to the Provincial Congress. In this posture of affairs, the encounter between a detachment of the King's forces and a body of militia, commonly called the battle of Lexington, occurred, on the 19th of April, 1775. FOOTNOTES: [2] Story's Commentaries on the Constitution, § 160. [3] That a union of the colonies into one general government, for any purpose, could not take place without the sanction of Parliament, was always assumed in both countries. The sole instance in which a plan of union was publicly proposed and acted upon, before the Revolution, was in 1753-4, when the Board of Trade sent instructions to the Governor of New York to make a treaty with the Six Nations of Indians; and the other colonies were also instructed to send commissioners to be present at the meeting, so that all the provinces might be comprised in one general treaty, to be made in the King's name. It was also recommended by the home government, that the commissioners at this meeting should form a plan of union among the colonies for their mutual protection and defence against the French. Twenty-five commissioners assembled at Albany in May, 1754, from New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, and Maryland. In this body, a plan of union was digested and adopted, which was chiefly the work of Dr. Franklin. It was agreed that an act of Parliament was necessary to authorize it to be carried into effect. It was rejected by all the colonial Assemblies before which it was brought, and in England it was not thought proper by the Board of Trade to recommend it to the King. In America it was considered to have too much of _prerogative_ in it, and in England to be too _democratic_. It was a comprehensive scheme of government, to consist of a Governor-General, or President-General, who was to be appointed and supported by the crown, and a Grand Council, which was to consist of one member chosen by each of the smaller colonies, and two or more by each of the larger. Its duties and powers related chiefly to defence against external attacks. It was to have a general treasury, to be supplied by an excise on certain articles of consumption. See the history and details of the scheme, in Sparks's Life and Works of Franklin, I. 176, III. 22-55; Hutchinson's History of Massachusetts, III. 23; Trumbull's History of Connecticut, II. 355; Pitkin's History of the United States, I. 140-146. In 1788, Franklin said of it: "The different and contradictory reasons of dislike to my plan make me suspect that it was really the true medium; and I am still of opinion it would have been happy for both sides, if it had been adopted. The colonies so united would have been sufficiently strong to have defended themselves: there would have been no need of troops from England: of course the subsequent pretext for taxing America, and the bloody contest it occasioned, would have been avoided. But such mistakes are not new: history is full of the errors of states and princes." (Life, by Sparks, I. 178.) We may not join in his regrets now. [4] It is not certain by whom the first suggestion of a Continental Congress was made. Thomas Cushing, Speaker of the Massachusetts Assembly, and a correspondent of Dr. Franklin, appears to have expressed to him the opinion, previously to the date of Franklin's official letter quoted in the text, that a congress would grow out of the committees of correspondence which had been recommended by the Virginia House of Burgesses. But Mr. Sparks thinks that no other direct and public recommendation of the measure can be found before the date of Franklin's letter to the Massachusetts Assembly. Sparks's Life of Franklin, I. 350, note. In the early part of the year 1774, the necessity of such a congress began to be popularly felt throughout all the colonies. Sparks's Washington, II. 326. [5] These delegates were Peyton Randolph, Richard Henry Lee, George Washington, Patrick Henry, Richard Bland, Benjamin Harrison, and Edmund Pendleton. [6] Thomas Cushing, Samuel Adams, Robert Treat Paine, James Bowdoin, and John Adams. [7] The delegates in the Congress of 1774 from New Hampshire were appointed by a Convention of Deputies chosen by the towns, and received their credentials from that Convention. In Rhode Island, they were appointed by the General Assembly, and commissioned by the Governor. In Connecticut, they were appointed and instructed by the Committee of Correspondence for the Colony, acting under authority conferred by the House of Representatives. In New York, the mode of appointment was various. In the city and county of New York, the delegates were elected by popular vote taken in seven wards. The same persons were also appointed to act for the counties of West Chester, Albany, and Duchess, by the respective committees of those counties; and another person was appointed in the same manner for the county of Suffolk. The New York delegates received no other instructions than those implied in the certificates, "to attend the Congress and to represent" the county designated. In New Jersey, the delegates were appointed by the committees of counties, and were simply instructed "to represent" the Colony. In Pennsylvania, they were appointed and instructed by the House of Assembly. In the counties of New Castle, Kent, and Sussex on Delaware, delegates were elected by a convention of the freemen assembled in pursuance of circular letters from the Speaker of the House of Assembly. In Maryland, the appointment was by committees of the counties. In Virginia, it was by a popular convention of the whole Colony. In South Carolina, it was by the House of Commons. Georgia was not represented in this Congress. [8] Journals, I. 1, 12. [9] The President and Secretary appear to have been chosen _viva voce_ or by a hand vote. John Adam's Works, II. 365. [10] Adams, II. 366. [11] This opinion, we are told by Mr. Adams, was advanced by Patrick Henry. See notes of the debate, in Adams, II. 366, 368. [12] See the very interesting notes of their debates in Adams's Works, II. 366, 370-377. [13] Journals, I. 10. [14] The instructions embraced in the credentials of the delegates to the first Congress were as follows:--NEW HAMPSHIRE,--"to devise, consult, and adopt such measures as may have the most likely tendency to extricate the colonies from their present difficulties; to secure and perpetuate their rights, liberties, and privileges; and to restore that peace, harmony, and mutual confidence which once happily subsisted between the parent country and her colonies." MASSACHUSETTS,--"to deliberate and determine upon wise and proper measures, to be by them recommended to all the colonies, for the recovery and establishment of their just rights and liberties, civil and religious, and the restoration of union and harmony between Great Britain and the colonies, most ardently desired by all good men." RHODE ISLAND,--"to meet and join with the other commissioners or delegates from the other colonies in consulting upon proper measures to obtain a repeal of the several acts of the British Parliament for levying taxes upon his Majesty's subjects in America without their consent, and particularly the commercial connection of the colonies with the mother country, for the relief of Boston and the preservation of American liberty." VIRGINIA,--"to consider of the most proper and effectual manner of so operating on the commercial connection of the colonies with the mother country, as to procure redress for the much injured Province of Massachusetts Bay, to secure British America from the ravage and ruin of arbitrary taxes, and speedily to procure the return of that harmony and union so beneficial to the whole empire, and so ardently desired by all British America." SOUTH CAROLINA,--"to consider the acts lately passed and bills depending in Parliament with regard to the port of Boston and Colony of Massachusetts Bay, which acts and bills, in the precedent and consequences, affect the whole continent of America;--also the grievances under which America labors by reason of the several acts of Parliament that impose taxes or duties for raising a revenue, and lay unnecessary restraints and burdens on trade;--and of the statutes, parliamentary acts, and royal instructions, which make an invidious distinction between his Majesty's subjects in Great Britain and America; with full power and authority to concert, agree to, and effectually prosecute such legal measures as, in the opinion of the said deputies and of the deputies so to be assembled, shall be most likely to obtain a repeal of the said acts and a redress of these grievances." The delegates from New York and New Jersey were simply instructed "to represent" those colonies in the Congress. Journals, I. 2-9. [15] Letter of the Congress to Governor Gage, October 10, 1774. Journals, I. 25, 26. [16] Additions were made to it. [17] Works of John Adams. [18] See the origin of these expressions explained, in Adams's Works, II. 373-375. [19] Journals, I. 29. [20] Ibid. They adopted also an Address to the People of Great Britain, and a Petition to the King, embodying similar principles with those asserted in the Declaration of Rights. Ibid. 38, 67. [21] Journals, I. 21. [22] This association, signed by the delegates, of Maryland, Virginia, North Carolina, and South Carolina, as well as of the other colonies, contained, among other things, the following agreement:--"We will neither import nor purchase any slaves imported after the first day of December next; after which time we will wholly discontinue the slave-trade, and will neither be concerned in it ourselves, nor will we hire our vessels, nor sell our commodities or manufactures, to those who are concerned in it." Journals, I. 33. [23] Journals, I. 56. Oct. 22, 1774. CHAPTER II 1775-1776. THE SECOND CONTINENTAL CONGRESS.--FORMATION AND CHARACTER OF THE REVOLUTIONARY GOVERNMENT.--APPOINTMENT OF A COMMANDER-IN-CHIEF.--FIRST ARMY OF THE REVOLUTION. A new Continental Congress assembled at Philadelphia on the 10th of May, 1775; and in order to observe the growth of the Union, it is necessary to trace the organization of this body, and to describe briefly the kind of sovereignty which it exercised, from the time of its assembling until the adoption and promulgation of the Declaration of Independence.[24] The delegates to this Congress were chosen partly by the popular branch of such of the colonial legislatures as were in session at the time, the choice being afterwards ratified by conventions of the people; but they were principally appointed by conventions of the people held in the various colonies. All these appointments, except those made in New York, took place before the battle of Lexington, and most of them had been made in the course of the previous winter.[25] The credentials of the delegates, therefore, while they conferred authority to adopt measures to recover and establish American rights, still expressed, in many instances, a desire for the restoration of harmony between Great Britain and her colonies. In some cases, however, this desire was not expressed, but a naked authority was granted, to consent and agree to all such measures as the Congress should deem necessary and effectual to obtain a redress of American grievances. When this Congress assembled, it seems to have been tacitly assumed that each colony should continue to have one vote through its delegation actually present. All the thirteen colonies were represented at the opening of the session, except Georgia and Rhode Island. Three days after the session commenced, a delegate appeared from the Parish of St. Johns in Georgia, who was admitted to a seat, but did not claim the right of voting for the colony. On the 15th of May, a delegation from Rhode Island appeared and took their seats. The credentials of the delegates contained no limitation of their powers with respect to time, with the exception of those from Massachusetts and South Carolina, whose authority was not to extend beyond the end of the year. The Congress continued in session until the 1st of August, and then adjourned for a recess to the 5th of September. When they were again assembled, the delegations of several of the colonies were renewed, with different limitations as to their time of service. Georgia sent a full delegation, who took their seats on the 13th of September. Still later, the delegations of several other colonies were renewed from time to time, and this practice was pursued both before and after the Declaration of Independence, thus rendering the Congress a permanent body.[26] Notwithstanding the absence of any express authority in their instructions to enter upon revolutionary measures, the circumstances under which the Congress assembled placed it in the position and cast upon it the powers of a revolutionary government. Civil war had actually commenced, and blood had been shed. Whether this war was to be carried on for independence, or was only to be waged until the British ministry could be compelled to acknowledge the rights which the colonies had asserted, the Congress necessarily became, at once, the organ of the common resistance of the colonies against the parent state. The first thing which evinces its new relation to the country was the application made to it by the Provincial Congress of Massachusetts, immediately after the battle of Lexington, for direction and assistance. While they informed the Continental Congress that they had proceeded, at once, to raise a force of thirteen thousand six hundred men, and had made proposals to the other New England colonies to furnish men in the same proportions, stating that the sudden exigency of their affairs precluded the possibility of waiting for direction, they suggested that an American army ought forthwith to be raised for the common cause.[27] In the same manner, the city and county of New York applied for the advice of Congress, how to conduct themselves with regard to the British troops expected in that quarter. These applications caused the Congress at once to resolve itself into a committee of the whole, to take into consideration the state of America.[28] These proceedings were soon followed by another application on the part of the Provincial Convention of Massachusetts, setting forth the difficulties under which they were laboring for want of a regular form of government; requesting explicit advice respecting the formation of a new government; and offering to submit to such a general plan as the Congress might direct for the colonies, or to endeavor to form such a government for themselves as should not only promote their own advantage, but the union and interest of the whole country.[29] Placed in this manner at the head of American affairs, the Continental Congress proceeded, at once, to put the country into a state of defence, and virtually assumed a control over the military operations of all the colonies. They appointed committees to prepare reports on military measures: first, to recommend what posts should be occupied in the city of New York; secondly, to devise ways and means for procuring ammunition and military stores; thirdly, to make an estimate of the moneys necessary to be raised; and fourthly, to prepare rules and regulations for the government of the army. They then proceeded to create a continental, or national army. To the battle of Lexington had succeeded the investment of Boston, by an army composed of regiments raised by the New England provinces, under the command of General Ward of Massachusetts. This army was adopted by the Congress; and, with other forces raised for the common defence, became known and designated as the American Continental Army.[30] Six companies of riflemen were ordered to be immediately raised in Pennsylvania, two in Maryland, and two in Virginia, and directed to join the army near Boston, and to be paid by the continent.[31] On the 15th of June, 1775, Colonel George Washington, one of the delegates in Congress from Virginia, was unanimously chosen to be commander-in-chief of the continental forces.[32] Having accepted the appointment, he received from the Congress a commission, together with a resolution by which they pledged their lives and fortunes to maintain, assist, and adhere to him in his great office, and a letter of instructions, in which they charged him to make it his special care, "that the liberties of America receive no detriment."[33] In the commission given to the general, the style of "the United Colonies" was for the first time adopted, and the defence of American Liberty was assumed as the great object of their union.[34] On the 21st of June, Washington left Philadelphia to take command of the army, and arrived at Cambridge in Massachusetts on the 2d of July. Four major-generals and eight brigadier-generals were also appointed by the Congress for the continental army; rules and regulations for its government were adopted and proclaimed, and the pay of the officers and privates was fixed.[35] The Congress also proceeded, as the legislative authority of the United Colonies, to create a continental currency, in order to defray the expenses of the war. This was done by issuing two millions of dollars, in bills of credit, for the redemption of which the faith of the confederated colonies was pledged. A quota of this sum was apportioned to each colony, and each colony was made liable to discharge its proportion of the whole, but the United Colonies were obligated to pay any part which either of the colonies should fail to discharge.[36] The first of these quotas was made payable in four, the second in five, the third in six, and the fourth in seven years from the last day of November, 1775, and the provincial assemblies or conventions were required, by the resolves of the Congress, to provide taxes in their respective provinces or colonies, to discharge their several quotas.[37] The Congress also directed reprisals to be made, both by public and private armed vessels, against the ships and goods of the inhabitants of Great Britain found on the high seas, or between high and low water-mark; this being a measure of retaliation against an act of Parliament, which had authorized the capture and condemnation of American vessels, and which was considered equivalent to a declaration of war. They also threw open the ports of the United Colonies to all the world, except the dominions and dependencies of Great Britain. Further, they established a general Treasury Department, by the appointment of two joint Treasurers of the United Colonies, who were required to give bonds for the faithful performance of the duties of their office,[38] and they organized a general Post-Office, by the appointment of a Postmaster-General for the United Colonies, to hold his office at Philadelphia, to appoint deputies, and to establish a line of posts from Falmouth in Massachusetts to Savannah in Georgia, with such cross posts as he should judge proper.[39] The proceedings of the Congress on the subject of the Militia were, of course, in the nature of recommendations only. They advised the arming and training of the militia of New York, in May, 1775,[40] and in July they recommended to all the colonies to enroll all the able-bodied, effective men among their inhabitants, between sixteen and fifty years of age, and to form them into proper regiments.[41] The powers of the Congress to call into the field the militia thus embodied were considered to be subject to the consent of those exercising the executive powers of government in the colony, for the time being.[42] The relations of the country with the Indian tribes and nations were deemed to be properly within the exclusive jurisdiction of the Congress. Three departments of Indian Affairs, Northern, Southern, and Middle, with separate commissioners for each, were therefore established in July, having power to treat with the Indians in the name and on behalf of the United Colonies.[43] Negotiations and treaties were entered into by these departments, and all affairs with the Indians were conducted by them, under the direction and authority of the Congress.[44] With regard to those inhabitants of the country who adhered to the royalist side of the controversy, the Congress of 1775-6 did not assume and exercise directly the powers of arrest or restraint, but left the exercise of such powers to the provincial assemblies, or conventions, and committees of safety, in the respective colonies, with recommendations from time to time as to the mode in which such powers ought to be exercised.[45] Besides all this, the different applications made to the Congress by the people of Massachusetts,[46] of New Hampshire,[47] of Virginia,[48] and of South Carolina, concerning the proper exercise of the powers of government in those colonies, and the answers to those applications, furnish very important illustrations of the position in which the Congress were placed. To the people of Massachusetts, they declared that no obedience was due to the act of Parliament for altering their charter, and that, as the Governor and Lieutenant-Governor would not observe the directions of that instrument, but had endeavored to subvert it, their offices ought to be considered vacant; and, as the Council was actually vacant, in order to conform as near as might be to the spirit and substance of the charter, they recommended to the Provincial Convention to write letters to the inhabitants of the several towns entitled to representation in the Assembly, requesting them to choose representatives, and requesting the Assembly when chosen to elect councillors; adding their wish, that these bodies should exercise the powers of government until a Governor of the King's appointment would consent to govern the colony according to its charter.[49] The Provincial Conventions of New Hampshire, Virginia, and South Carolina were advised to call a full and free representation of the people, in order to establish such a form of government as, in their judgment, would best promote the happiness of the people and most effectually secure peace and good order in their Provinces, during the continuance of the dispute with Great Britain.[50] This advice manifestly contemplated the establishment of provisional governments only. But between the date of these last proceedings and the following spring a marked change took place, both in the expectations and wishes of the people of most of the colonies, with regard to an accommodation of the great controversy. The last petition of the Congress to the King was refused a hearing in Parliament, as emanating from an unlawful assembly, in arms against their sovereign. In November, the town of Falmouth in Massachusetts was bombarded and destroyed by the King's cruisers. In the latter part of December, an act was passed in Parliament, prohibiting all trade and commerce with the colonies; warranting the capture and condemnation of all American vessels, with their cargoes, and authorizing the commanders of the King's ships to compel the masters, crews, and other persons found in such vessels, to enter the King's service. The act also empowered the King to appoint commissioners, with authority to grant pardon, on submission, to individuals and to colonies, and after such submission to exempt them from its operation.[51] Great preparations were made to reduce the colonies to the submission required by this act, and a part of the troops that were to be employed were foreign mercenaries. The necessity of a complete separation from the mother country, and the establishment of independent governments, had, therefore, in the winter of 1775-6, become apparent to the people of America. Accordingly, the Congress, asserting it to be irreconcilable to reason and good conscience for the people of the colonies any longer to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain, and declaring that the exercise of every kind of authority under that crown ought to be suppressed, and a government of the people of the colonies substituted in its place, recommended to the respective assemblies and conventions of the colonies, where no government sufficient for the exigencies of their affairs had been already established, to adopt such a government as in the opinion of the representatives of the people would best conduce to the happiness and safety of their constituents and of America in general.[52] * * * * * It is apparent, therefore, that, previously to the Declaration of Independence, the people of the several colonies had established a national government of a revolutionary character, which undertook to act, and did act, in the name and with the general consent of the inhabitants of the country. This government was established by the union, in one body, of delegates representing the people of each colony; who, after they had thus united for national purposes, proceeded, in their respective jurisdictions, by means of conventions and other temporary arrangements, to provide for their domestic concerns by the establishment of local governments, which should be the successors of that authority of the British crown which they had "everywhere suppressed." The fact that these local or state governments were not formed until a union of the people of the different colonies for national purposes had already taken place, and until the national power had authorized and recommended their establishment, is of great importance in the constitutional history of this country; for it shows that no colony, acting separately for itself, dissolved its own allegiance to the British crown, but that this allegiance was dissolved by the supreme authority of the people of all the colonies, acting through their general agent, the Congress, and not only declaring that the authority of Great Britain ought to be suppressed, but recommending that each colony should supplant that authority by a local government, to be framed by and for the people of the colony itself. The powers exercised by the Congress, before the Declaration of Independence, show, therefore, that its functions were those of a revolutionary government. It is a maxim of political science, that, when such a government has been instituted for the accomplishment of great purposes of public safety, its powers are limited only by the necessities of the case out of which they have arisen, and of the objects for which they were to be exercised. When the acts of such a government are acquiesced in by the people, they are presumed to have been ratified by the people. To the case of our Revolution, these principles are strictly applicable, throughout. The Congress assumed, at once, the exercise of all the powers demanded by the public exigency, and their exercise of those powers was fully acquiesced in and confirmed by the people. It does not at all detract from the authoritative character of their acts, nor diminish the real powers of the Revolutionary Congress, that it was obliged to rely on local bodies for the execution of most of its orders, or that it couched many of those orders in the form of recommendations. They were complied with and executed, in point of fact, by the provincial congresses, conventions, and local committees, to such an extent as fully to confirm the revolutionary powers of the Congress, as the guardians of the rights and liberties of the country. But we shall see, in the further progress of the history of the Congress, that while its powers remained entirely revolutionary, and were consequently coextensive with the great national objects to be accomplished, the want of the proper machinery of civil government and of independent agents of its own rendered it wholly incapable of wielding those powers successfully. * * * * * NOTE TO PAGE 33. ON WASHINGTON'S APPOINTMENT AS COMMANDER-IN-CHIEF. The circumstances which attended the appointment of Washington to this great command are now quite well known. He had been a member of the Congress of 1774, and his military experience and accomplishments, and the great resources of his character, had caused his appointment on all the committees charged with making preparations for the defence of the colonies. Returned as a delegate from Virginia to the Congress of 1775, his personal qualifications pointed him out as the fittest person in the whole country to be invested with the command of any army which the United Colonies might see fit to raise; and it is quite certain that there would have been no hesitation about the appointment, if some political considerations had not been suggested as obstacles. At the moment when the choice was to be made, the scene of actual operations was in Massachusetts, where an army composed of troops wholly raised by the New England colonies, and under the command of General Ward, of that Province, was besieging the enemy in Boston. This army was to be adopted by the Congress into the service of the continent, and serious doubts were entertained by some of the members of the Congress as to the policy of appointing a Southern general to the command of it, and a good deal of delicacy was felt on account of General Ward, who, it was thought, might consider himself injured by such an appointment. On the other hand, there were strong reasons for selecting a general-in-chief from Virginia. That colony had taken the lead, among the Southern provinces, in the cause of the continent, and the appointment seemed to be due to her, if it was to be made upon political considerations. The motives for this policy were deemed sufficient to outweigh the objections arising from the character and situation of the army which the general would, in the first instance, have to command. But after all, it cannot be doubted, that the preëminent qualifications of Washington had far more weight with the majority of the Congress, than any dictates of mere policy, between one part of the Union and another, or any local jealousies or sectional ambition. Mr. John Adams, whose recently published autobiography contains some statements on this subject, speaks of the existence of a Southern party against a Northern, and a jealousy against a New England army under the command of a New England general, which, he says, he discovered after the Congress had been some time in session, and after the necessity of having an army and a general had become a topic of conversation. (Works, II. 415.) In a letter, also, written by Mr. Adams in 1822 to Timothy Pickering, he states that, on the journey to Philadelphia, he and a party of his colleagues, the delegates from Massachusetts to this Congress, were met at Frankfort by Dr. Rush, Mr. Mifflin, Mr. Bayard, and others of the Philadelphia patriots, who desired a conference with them; that, in this conference, the Philadelphia gentlemen strongly advised the Massachusetts delegates not to come forward with bold measures, or to endeavor to take the lead; and represented that Virginia was the most populous State in the Union, proud of its ancient dominions, and that "they [the Virginians] think they have a right to take the lead, and the Southern States, and the Middle States, too, are too much disposed to yield it to them." "I must confess," says Mr. Adams, "that there appeared so much wisdom and good sense in this, that it made a deep impression on my mind, and it had an equal effect on all my colleagues." "This conversation," he continues, "and the principles, facts, and motives suggested in it, have given a color, complexion, and character to the whole policy of the United States from that day to this. _Without it, Mr. Washington would never have commanded our armies_; nor Mr. Jefferson have been the author of the Declaration of Independence; nor Mr. Richard Henry Lee the mover of it; nor Mr. Chase the mover of foreign connections. _If I have ever had cause to repent of any part of this policy, that repentance ever has been and ever will be unavailing._ I had forgot to say, nor had Mr. Johnson ever have been the nominator of Washington for general." (Works, II. 512, 513.) Without impeaching the accuracy of Mr. Adams's recollection, on the score of his age when this letter was written, and without considering here how or why Mr. Jefferson came to be the author of the Declaration of Independence, it is believed that Mr. Adams states other facts, in his autobiography, sufficient to show that motives of policy towards Virginia were _not_ the sole or the principal reasons why Washington was elected general. Mr. Adams states in his autobiography, that at the time when he observed the professed jealousy of the South against a New England army under the command of a Northern general, it was very visible to him "that Colonel Washington was their object"; "and," he adds, "so many of our stanchest men were in the plan, that we could carry nothing without conceding it." (Works, II. 415.) When Mr. Adams came, as he afterwards did, to put himself at the head of this movement, and to propose in Congress that the army at Cambridge should be adopted, and that a general should be appointed, he referred directly to Washington as the person whom he had in his mind, and spoke of him as "a gentleman from Virginia who was among us and very well known to all of us, a gentleman whose skill and experience as an officer, whose independent fortune, great talents, and excellent universal character, would command the approbation of all America, and unite the cordial exertions of all the colonies better than any other person in the Union. Mr. Washington, who happened to sit near the door, as soon as he heard me allude to him, from his usual modesty, darted into the library-room." (Works, II. 417.) It is quite clear, therefore, that Mr. Adams put the appointment of Washington, in public, upon his qualifications and character, known all over the Union. He further states, that the subject came under debate, and that nobody opposed the appointment of Washington on account of any personal objection to him; and the only objection which he mentions as having been raised, was on the ground that the army near Boston was all from New England, and that they had a general of their own, with whom they were entirely satisfied. He mentions one of the Virginia delegates, Mr. Pendleton, as concurring in this objection; that Mr. Sherman of Connecticut and Mr. Cushing of Massachusetts also concurred in it, and that Mr. Paine of Massachusetts expressed strong personal friendship for General Ward, but gave no opinion upon the question. Afterwards, he says, the subject being postponed to a future day, "pains were taken out of doors to obtain a unanimity, and the voices were generally so clearly in favor of Washington, that the dissentient members were persuaded to withdraw their opposition, and Mr. Washington was nominated, I believe, by Mr. Thomas Johnson of Maryland, unanimously elected, and the army adopted." (Ibid.) It is worth while to inquire, therefore, what were the controlling reasons, which so easily and so soon produced this striking unanimity. If it was brought about mainly by the exertions of a Southern against a Northern party, and by the yielding of Northern men to the Virginians from motives of policy, it would not have been accomplished with so much facility, although even a Washington were the candidate of Virginia. Sectional jealousies and sectional parties inflame each other; the struggles which they cause are protracted; and the real merits of men and things are lost sight of in the passions which they arouse. If policy, as a leading or a principal motive, gave to General Washington the great body of the Northern votes, there would have been more dissentients from that policy than any of the accounts authorize us to suppose there were, at any moment, while the subject was under consideration. Nor does the previous conduct of Virginia warrant the belief, that her subsequent exertions in the cause of American liberty were mainly purchased by the honors bestowed upon her great men, or by so much of precedence as was yielded in the public councils to the unquestionable abilities of her statesmen. Some of them had undoubtedly been in favor of measures of conciliation to a late period; and some of them, as Washington, Patrick Henry, and Richard Henry Lee, had been, from an early period, convinced that the sword must decide the controversy. They were perhaps as much divided upon this point, until the army at Boston was adopted, as the leading men of other colonies. But when the necessity of that measure became apparent, it was the peculiar happiness of Virginia to be able to present to the country, as a general, a man whose character and qualifications threw all local and political objects at once into the shade. In order to form a correct judgment, at the present day, of the motives which must have produced a unanimity so remarkable and so prompt, we have only to recollect the previous history of Washington, as it was known to the Congress, at the moment when he shrank from the mention of his name in that assembly. He was forty-three years of age. From early youth, he had had a training that eminently fitted him for the great part which he was afterwards to play, and which unfolded the singular capacities of his character to meet the extraordinary emergencies of the post to which he was subsequently called. That training had been both in military and in civil life. His military career had been one of much activity and responsibility, and had embraced several brilliant achievements. In 1751, it became necessary to put the militia of Virginia in a condition to defend the frontiers against the French and the Indians. The province was divided into military districts, in each of which an adjutant-general, with the rank of major, was commissioned to drill and inspect the militia. Washington, at the age of nineteen, received the appointment to one of these districts; and in the following year, the province was again divided into four grand military divisions, of which the northern was assigned to him as adjutant-general. In 1753, the French crossed the lakes, to establish posts on the Ohio, and were joined by the Indians. Major Washington was sent by the Governor of Virginia to warn them to retire. This expedition was one of difficulty and of delicacy. He crossed the Alleghany Mountains, reached the Ohio, had interviews with the French commander and the Indians, and returned to Williamsburg to make report to the Governor. Of this journey, full of perilous adventures and narrow escapes, he kept a journal, which was published by the Governor; was copied into most of the newspapers of the other colonies; and was reprinted in London, as a document of much importance, exhibiting the views and designs of the French. In 1754, he was appointed, with the rank of lieutenant-colonel, second in command of the provincial troops raised by the Legislature to repel the French invasion. On the first encounter with a party of the enemy under Jumonville, on the 28th of May, 1754, the chief command devolved on Washington, in the absence of his superior. The French leader was killed, and most of his party were taken prisoners. Washington commanded also at the battle of the Great Meadows, and received a vote of thanks for his services from the House of Burgesses. This was in 1754, when he was at the age of twenty-two. During the next year, in consequence of the effect of some new arrangement of the provincial troops, he was reduced from the rank of colonel to that of captain, and thereupon retired from the army, with the consolation that he had received the thanks of his country for the services he had rendered. In 1755, he consented to serve as aide-de-camp to General Braddock, who had arrived from England with two regiments of regular troops. In this capacity he served in the battle of the Monongahela with much distinction. The two other aids were wounded and disabled early in the action, and the duty of distributing the General's orders devolved wholly upon Washington. It was in this battle that he acquired with the Indians the reputation of being under the special protection of the Great Spirit, because he escaped the aim of many of their rifles, although two horses were shot under him, and his dress was perforated by four bullets. His conduct on this occasion became known and celebrated throughout the country; and when he retired to Mount Vernon, as he did soon after, at the age of three-and-twenty, he not only carried with him a decisive reputation for personal bravery, but he was known to have given advice to Braddock, before the action, which all men saw, after it, would, if it had been duly heeded, have prevented his defeat. But he was not allowed to remain long in retirement. In August, 1755, he was appointed commander-in-chief of all the provincial forces of Virginia, and immediately entered upon the duties of reorganizing the old and raising new troops, in the course of which he visited all the outposts along the frontier. Soon afterwards, a dispute about rank having arisen with a person who claimed to take precedence of provincial officers because he had formerly held the King's commission, it became necessary for Colonel Washington to make a visit to Boston, in order to have the point decided by General Shirley, the commander-in-chief of his Majesty's armies in America. He commenced his journey on the 4th of February, 1756, and passed through Philadelphia, New York, New London, Newport, and Providence, and visited the Governors of Pennsylvania and New York. In all the principal cities his character, and his remarkable escape at Braddock's defeat, made him the object of a strong public interest. At Boston, he was received with marked distinction by General Shirley and by the whole society of the town, and the question of rank was decided according to his wishes. General Shirley explained to him the intended operations of the next campaign; and, after an absence from Virginia of seven weeks, he returned to resume his command. The next three years were spent in the duties of this laborious and responsible position, the difficulties and embarrassments of which bore a strong resemblance to those which he afterwards had to encounter in the war of the Revolution. In 1758, he commanded the Virginia troops in the expedition against Fort Duquesne, under General Forbes. Great deference was paid by that officer to his opinions and judgment, in arranging the line of march and order of battle, on this important expedition; for the fate of Braddock was before him. The command of the advanced division, consisting of one thousand men, was assigned to him, with the temporary rank of brigadier. When the army had approached within fifty miles of Fort Duquesne, the French deserted it; its surrender to the English closed the campaign; and in December Washington resigned his commission, and retired to Mount Vernon. What he had been, and what he then was, to the Colony of Virginia, is shown by the Address presented to him by the officers of the provincial troops, on his retirement. "In our earliest infancy," said they, "you took us under your tuition, trained us up in the practice of that discipline which alone can constitute good troops, from the punctual observance of which you never suffered the least deviation. Your steady adherence to impartial justice, your quick discernment, and invariable regard to merit, wisely intended to inculcate those genuine sentiments of true honor and passion for glory, from which the greatest military achievements have been derived, first heightened our natural emulation and our desire to excel. How much we improved by those regulations and your own example, with what alacrity we have hitherto discharged our duty, with what cheerfulness we have encountered the severest toils, especially while under your particular directions, we submit to yourself, and flatter ourselves that we have in a great measure answered your expectations.... It gives us additional sorrow, when we reflect, to find our unhappy country will receive a loss no less irreparable than our own. Where will it meet a man so experienced in military affairs, one so renowned for patriotism, conduct, and courage? Who has so great a knowledge of the enemy we have to deal with? Who so well acquainted with their situation and strength? Who so much respected by the soldiery? Who, in short, so able to support the military character of Virginia? Your approved love to your King and country, and your uncommon perseverance in promoting the honor and true interest of the service, convince us that the most cogent reasons only could induce you to quit it; yet we, with the greatest deference, presume to entreat you to suspend those thoughts for another year, and to lead us on to assist in the glorious work of extirpating our enemies, towards which so considerable advances have already been made. In you we place the most implicit confidence. Your presence only will cause a steady firmness and vigor to actuate every breast, despising the greatest dangers, and thinking light of toils and hardships, while led on by the man we know and love. But if we must be so unhappy as to part, if the exigencies of your affairs force you to abandon us, we beg it as our last request, that you will recommend some person most capable to command, whose military knowledge, whose honor, whose conduct, and whose disinterested principles we may depend on. Frankness, sincerity, and a certain openness of soul, are the true characteristics of an officer, and we flatter ourselves that you do not think us capable of saying any thing contrary to the purest dictates of our minds. Fully persuaded of this, we beg leave to assure you, that, as you have hitherto been the actuating soul of our whole corps, we shall at all times pay the most invariable regard to your will and pleasure, and shall be always happy to demonstrate by our actions with how much respect and esteem we are," &c. Washington's marriage took place soon after his resignation (January 6th, 1759), and his civil life now commenced. He had been elected a member of the House of Burgesses, before the close of the campaign, and in the course of the winter he took his seat. Upon this occasion, his inability, from confusion and modesty, to reply to a highly eulogistic address made to him by the Speaker, Mr. Robinson, drew from that gentleman the celebrated compliment, "Sit down, Mr. Washington, your modesty equals your valor, and that surpasses the power of any language that I possess." He continued a member of the House of Burgesses until the commencement of the Revolution, a period of fifteen years. He was not a frequent speaker; but his sound judgment, quick perception, and firmness and sincerity of character, gave him an influence which the habit of much speaking does not give, and which is often denied to eloquence. As the time drew near, when the controversies between the colonies and England began to assume a threatening aspect, he was naturally found with Henry, Randolph, Lee, Wythe, and Mason, and the other patriotic leaders of the colonies. His views concerning the policy of the non-importation agreements were early formed and made known. In 1769, he took charge of the Articles of Association, drawn by Mr. Mason, which were intended to bring about a concert of action between all the colonies, for the purpose of presenting them to the Assembly, of which Mr. Mason was not a member. In 1774, he was chosen a member of the first Virginia Convention, and was by that body elected a delegate to the first Continental Congress, where he was undoubtedly the most conspicuous person present. The second Virginia Convention met in March, 1775, and reflected the former delegates to the second Continental Congress, from which Washington was removed by his appointment as Commander-in-chief. There can be no doubt, therefore, that Washington was chosen Commander-in-chief for his unquestionable merits, and not as a compromise between sectional interests and local jealousies. (The authorities for the statements in this note concerning Washington's history are the biographies by Marshall and Sparks, and the Writings of Washington, edited by the latter.) FOOTNOTES: [24] Peyton Randolph, President of the first and reëlected President of the second Congress, died very suddenly at Philadelphia on the 22d of October, 1775, and was succeeded in that office by John Hancock. Mr. Randolph was one of the most eminent of the Virginia patriots, and an intimate friend of Washington. Richard Henry Lee wrote to Washington, on the day after his death, that "in him American liberty lost a powerful advocate, and human nature a sincere friend." He was formerly Attorney-General of Virginia, and in 1753 went to England as agent of the House of Burgesses, to procure the abolition of a fee, known as the pistole fee, which it had been the custom of the Governors of Virginia to charge for signing land patents, as a perquisite of their office. He succeeded in getting the fee abolished in cases where the quantity of land exceeded one hundred acres. He was commander of a company of mounted volunteers called the Gentlemen Associators, who served in the French war. He was President of the Virginia Convention, as well as a Delegate in Congress, at the time of his death. Sparks's Washington, II. 58, 161; III. 139, 140; XII. 420. [25] In Massachusetts, Pennsylvania, and Maryland, they were made in December; in Connecticut, in November; in New Jersey, in January; in South Carolina, in February; in the Lower Counties on Delaware and in Virginia, in March; in North Carolina, on the 5th of April; and in New York, on the 22d of April. [26] Virginia renewed her delegation for one year from the 11th of August, 1775, and Maryland hers with powers to act until the 25th of March, 1776. These new delegations, as well as that of Georgia, appeared on the 13th of September, 1775. On the 16th of September, a renewed delegation appeared from New Hampshire, without limitation of time; Connecticut sent a new delegation on the 16th of January, 1776, and Massachusetts did the same on the 31st of January, for the year 1776. The persons of the delegates were not often changed. [27] Journals, I. 81, 82. [28] May 15, 1775. Journals, I. 162. [29] Journals, I. 112. [30] Form of enlistment, Journals, I. 118. [31] Ibid. [32] See note at end of the chapter. [33] Secret Journals of Congress, I. 18; Pitkin's History of the United States, I. 334, 335. [34] Journals, I. 122. [35] June 16-July 4, 1775. Journals, I. 112-133. [36] Journals, I. 125, June 23, 1775. Ibid., I. 185, July 29, 1775. [37] Ibid. [38] Journals, I. 186, July 29, 1775. Michael Hillegas and George Clymer, Esquires, were elected Treasurers. [39] Journals, I. 177, 178, July 26, 1775. Dr. Franklin was elected Postmaster-General for one year, and until another should be appointed by a future Congress. [40] Journals, I. 106. [41] Journals, I. 170. [42] Journals, I. 285. [43] Journals, I. 161, 162. [44] Journals, II. 112, 141, 163, 201, 255, 302, 304. [45] Journals, I. 213; II. 5. [46] June 9, 1775. [47] November 3, 1775. [48] December 4, 1775. [49] Journals, I. 115. [50] Journals, I. 231, 235, 279. [51] Annual Register. [52] May 10, 1776. Journals, II. 166, 174. CHAPTER III. 1776-1777. CONTINUANCE OF THE REVOLUTIONARY GOVERNMENT.--DECLARATION OF INDEPENDENCE.--PREPARATIONS FOR A NEW GOVERNMENT.--FORMATION OF THE CONTINENTAL ARMY. On the 7th of June, 1776, after the Congress had in fact assumed and exercised sovereign powers with the assent of the people of America, a resolution was moved by Richard Henry Lee of Virginia, and seconded by John Adams of Massachusetts, "That these United Colonies are, and of right ought to be, free and independent states; and that all political connection between them and the state of Great Britain is and ought to be totally suppressed."[53] This resolution was referred to a committee of the whole, and was debated until the 10th, when it was adopted in committee. On the same day, a committee, consisting of five members,[54] was instructed to prepare a declaration "that these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown; and that all political connection between them and the state of Great Britain is, and ought to be, dissolved." The resolution introduced by Mr. Lee on the 7th was postponed until the 1st of July, to give time for greater unanimity among the members, and to enable the people of the colonies to instruct and influence their delegates. The postponement was immediately followed by proceedings in the colonies, in most of which the delegates in Congress were either instructed or authorized to vote for the resolution of Independence; and on the 2d of July that resolution received the assent in Congress of all the colonies, excepting Pennsylvania and Delaware. The Declaration of Independence was reported by the committee, who had been instructed to prepare it, on the 28th of June, and on the 4th of July it received the vote of every colony, and was published to the world.[55] This celebrated instrument, regarded as a legislative proceeding, was the solemn enactment, by the representatives of all the colonies, of a complete dissolution of their allegiance to the British crown. It severed the political connection between the people of this country and the people of England, and at once erected the different colonies into free and independent states. The body by which this step was taken constituted the actual government of the nation, at the time, and its members had been directly invested with competent legislative power to take it, and had also been specially instructed to do so. The consequences flowing from its adoption were, that the local allegiance of the inhabitants of each colony became transferred and due to the colony itself, or, as it was expressed by the Congress, became due to the laws of the colony, from which they derived protection;[56] that the people of the country became thenceforth the rightful sovereign of the country; that they became united in a national corporate capacity, as one people; that they could thereafter enter into treaties and contract alliances with foreign nations, could levy war and conclude peace, and do all other acts pertaining to the exercise of a national sovereignty; and finally, that, in their national corporate capacity, they became known and designated as the United States of America. This Declaration was the first national state paper in which these words were used as the style and title of the nation. In the enacting part of the instrument, the Congress styled themselves "the representatives of the United States of America in general Congress assembled"; and from that period, the previously "United Colonies" have been known as a political community, both within their own borders and by the other nations of the world, by the title which they then assumed.[57] On the same day on which the committee for preparing the Declaration of Independence was appointed, another committee, consisting of one member from each colony, was directed "to prepare and digest the form of a confederation to be entered into between these colonies." This committee reported a draft of Articles of Confederation, on the 12th of July, which were debated in Congress on several occasions between that day and the 20th of August of the same year, at which time a new draft was reported, and ordered to be printed. The subject was not again resumed, until the 8th of April, 1777; but, between that date and the 15th of the following November, sundry amendments were discussed and adopted, and the whole of the articles, as amended, were printed for the use of the Congress and the State Legislatures. On the 17th of November, a circular letter was reported and adopted, to be addressed to the Legislatures of the thirteen States, recommending to them "to invest the delegates of the State with competent powers, ultimately, in the name and behalf of the State, to subscribe Articles of Confederation and Perpetual Union of the United States, and to attend Congress for that purpose on or before the 10th day of March next."[58] A year and five months had thus elapsed, between the agitation of the subject of a new form of national government, and the adoption and recommendation of a form, by the Congress, for the consideration of the States.[59] During this interval, the affairs of the country were administered by the Revolutionary Congress, which had been instituted, originally, for the purpose of obtaining redress peaceably from the British ministry, but which afterwards became _de facto_ the government of the country, for all the purposes of revolution and independence. In order to appreciate the objects of the Confederation, the obstacles which it had to encounter, and the mode in which those obstacles were finally overcome, it is necessary here to take a brief survey of the national affairs during the period beginning with the commencement of the war and the Declaration of Independence, and extending to the date of the submission of the Articles of Confederation to the State Legislatures. From no point of view can so much instruction be derived, as from the position in which Washington stood, during this period. By following the fortunes and appreciating the exertions of him who had been charged with the great military duty of achieving the liberties of the country, and especially by observing his relations with the government that had undertaken the war, we can best understand the fitness of that government for the great task to which it had been called. The continental government, which commissioned and sent General Washington to take the command of the army which it had adopted, consisted solely of a body of delegates, chosen to represent the people of the several colonies or states, for certain purposes of national defence, safety, redress, and revolution. When the war had actually commenced, and the United Colonies were engaged in waging it, the Congress possessed, theoretically and rightfully, large political powers, of a vague revolutionary nature; but practically, they had little direct civil power, either legislative or executive. They were obliged to rely almost wholly on the legislatures, provincial congresses and committees, or other local bodies of the several colonies or states, to carry out their plans. When Washington arrived at Cambridge and found the army then encamped around Boston in a state requiring it to be entirely remodelled, he came as the general of a government which could do little more for him than recommend him to the Provincial Congress, to the Committee of Safety, and to the prominent citizens of Massachusetts Bay. The people of the United States, at the present day, surrounded by the apparatus of national power, can form some idea of Washington's position, and of that of the government which he served, from the fact that, when he left Philadelphia to take the command of the army, he requested the Massachusetts delegates to recommend to him bodies of men and respectable individuals, to whom he might apply, to get done, through voluntary coöperation, what was absolutely essential to the existence of that army.[60] In truth, the whole of his residence in Massachusetts during the summer of 1775, and the winter of 1775-6, until he saw the British fleet go down the harbor of Boston, was filled with complicated difficulties, which sprang from the nature of the revolutionary government and the defects in its civil machinery, far more than from any and all other causes. These difficulties required the exertion of great intellectual and physical energy, the application of consummate prudence and forecast, and the patience and fortitude which in him were so happily combined with power. They would have broken down many of the greatest generals whom the world has seen; but it is our good fortune to be able to look back upon his efforts to encounter them as among the more prominent and striking manifestations of the strength of Washington's mind and character, and as among the most valuable proofs of what we owe to him. On the one side of him was the body of delegates, sitting at Philadelphia, by whom he had been commissioned, who constituted the government of America, and from whom every direction, order, or requisition, concerning national affairs, necessarily proceeded. On the other side were the Provincial Congresses, and other public bodies of the New England colonies, on whom he and the Congress were obliged to rely for the execution of their plans. He was compelled to become the director of this complicated machinery. There were committees of the Congress, charged with the different branches of the public service; but General Washington was obliged to attend personally to every detail, and to suggest, to urge, and to entreat action upon all the subjects that concerned the army and the campaign. His letters, addressed to the President of Congress, were read in that body, and votes or resolutions were passed to give effect to his requests or recommendations. But this was not enough. Having obtained the proper order or requisition, he was next obliged to see that it was executed by the local bodies or magistrates, with whom he not infrequently was forced to discuss the whole subject anew. He met with great readiness of attention, and every disposition to make things personally convenient and agreeable to him; but he found, as he has recorded, a vital and inherent principle of delay, incompatible with military service, in the necessity he was under to transact business through such numerous and different channels.[61] His applications to the Governor of Connecticut for hunting-shirts for the army;[62] to the Governor of Rhode Island for powder;[63] to the Massachusetts Provincial Congress to apprehend deserters and to furnish supplies;[64] and to the New York Provincial Congress to prevent their citizens from trading with the enemy in Boston,[65]--together with the earnest appeals which he was obliged to make on these and many other subjects, which should never have been permitted to embarrass him,--show how feeble were the powers and how defective was the machinery of the government which he served. But there are two or three topics which it will be necessary to examine more particularly, in order fully to understand the character and working of the revolutionary government. The first of these is the formation of the army. In order to carry on a war of any duration, it is the settled result of all experience, that the soldier should be bound to serve for a period long enough to insure discipline and skill, and should be under the influence of motives which look to substantial pecuniary rewards, as well as those founded on patriotism. According to Washington's experience, this is as true of officers as it is of common soldiers; and undoubtedly no army can be formed, and kept long enough in the field to be relied upon for the accomplishment of great purposes, if these maxims are neglected in its organization. Unfortunately, the Revolutionary Congress, at the very commencement of the war, committed the serious error of enlisting soldiers for short periods. When Washington arrived at Cambridge, the army which the Congress had just adopted as the continental establishment consisted of certain regiments, raised on the spur of the moment by the provinces of Massachusetts, New Hampshire, Rhode Island, and Connecticut; acting under their respective officers; regulated by their own militia laws; and, with the exception of those from Massachusetts, under no legal obligation to obey the general then in command. The terms of service of most of these men would expire in the autumn; and as they had enlisted under their local governments for a special object, and had not been in service long enough to have merged their habits of thinking and feeling, as New England citizens, in the character of soldiers, they denied the power of their own governments or of the Congress to transfer them into another service, or to retain them after their enlistments had expired.[66] The army was therefore to be entirely remodelled; or, to speak more correctly, an army was to be formed, by making enlistments under the Articles of War which had been adopted by the Congress, and by organizing new regiments and brigades under officers holding continental commissions. But the greatest difficulties had to be encountered in this undertaking. The continental Articles of War required a longer term of service than any of these troops had originally engaged for, and the rules and regulations were far more stringent than the discipline to which they had hitherto been subjected. There was, moreover, great reluctance, on the part of both officers and men, to serve in regiments consisting of the inhabitants of different colonies. A Connecticut captain would not serve under a Massachusetts colonel; a Massachusetts colonel was unwilling to command Rhode Island men; and the men were equally indisposed to serve under officers from another colony, or under any officers, in fact, but those of their own choosing.[67] In this state of things, a committee, consisting of Dr. Franklin, Mr. Lynch, and Colonel Harrison, was sent by the Congress to confer with General Washington and with the local governments of the New England colonies, on the most effectual method of continuing, supporting, and regulating a continental army.[68] This committee arrived at Cambridge on the 18th of October, and sat until the 24th.[69] They rendered very important services to the commander-in-chief, in the organization of the army; but in forming this first military establishment of the Union, the strange error was committed by the Congress, of enlisting the men for the term of one year only, if not sooner discharged;--a capital mistake, the consequences of which were severely felt throughout the whole war. There is no reason to suppose that General Washington concurred in the expediency of such short enlistments, then or at any other time; but he was obliged to yield to the pressure of the causes to which the mistake is fairly to be attributed. In fact, we find him, in a short time after the new system had been put into operation, pointing it out as a fatal error, in a letter to the President of Congress.[70] The error may have been owing to the character of the government, to the opinions and prejudices prevailing in Congress, and to the delusive idea, which still lingered in the minds of many of the members, that, although the sword had been drawn, the scabbard was not wholly thrown aside, and that they should be able to coerce the British ministry into a redress of grievances, which might be followed by a restoration of the relations between the colonies and the mother country, upon a constitutional basis. No such idea was entertained by Washington, from the beginning. He entertained no thought of accommodation, after the measures adopted in consequence of the battle of Bunker's Hill. But at the time of which we are treating, the issue had not been made, as Washington would have made it; and, when we consider the state of things before the Declaration of Independence was adopted, and look attentively at the objects for which the Congress had been assembled, and at the nature of their powers, we may perceive how they came to make the mistake of not organizing a military establishment on a more permanent footing. The delegates to the first Congress were, as we have seen, sent with instructions, which were substantially the same in all the colonies. These instructions, in some instances, looked to "a redress of grievances," and in others, to "the recovery and establishment of the just rights and liberties of the colonies"; and the delegates were directed "to deliberate upon wise and proper measures, to be by them recommended to all the colonies," for the attainment of these objects. But with this was coupled the declared object of a "restoration of union and harmony" upon "constitutional principles." We have seen how far this body proceeded towards a revolution. The second, or Revolutionary Congress, was composed of delegates who were originally assembled under similar instructions; but the conflict of arms that had already taken place, between the times of their respective appointments and the date of their meeting, had materially changed the posture of affairs. Powers of a revolutionary nature had been cast upon them, by the force of circumstances; and when they finally resolved to take the field, the character of those powers, as understood and acted upon by themselves, is illustrated by the commission which they issued to their General-in-chief, which embraced in its scope the whole vast object of "the defence of American liberty, and the repelling every hostile invasion thereof," by force of arms, and "by the rules and discipline of war, as herewith given." It is obvious, therefore, that, at the time when the first continental army was to be formed, the powers of the national government were very broad, although vague and uncertain. There seems to have been no reason, upon principle, why they should not have adopted decrees, to be executed by their own immediate agents, and by their own direct force. But a practical difficulty embarrassed and almost annulled this theoretical and rightful power. The government of the Congress rested on no definite, legislative faculty. When they came to a resolution, or vote, it constituted only a voluntary compact, to which the people of each colony pledged themselves, by their delegates, as to a treaty, but which depended for its observance entirely on the patriotism and good faith of the colony itself. No means existed of compelling obedience from a delinquent colony, and the government was not one which could operate directly upon individuals, unless it assumed the full exercise of powers derived from the revolutionary objects at which it aimed. These powers were not assumed and exercised to their full extent, for reasons peculiar to the situation of the country, and to the character, habits, and feelings of the people. The people of the colonies had indeed sent their delegates to a Congress, to consult and determine upon the measures necessary to be adopted, in order to assert and maintain their rights. But they had never been accustomed to any machinery of government, or legislation, other than that existing in their own separate jurisdictions. They had imparted to the Congress no proper legislative authority, and no civil powers, except those of a revolutionary character. This revolutionary government was therefore entirely without civil executive officers, fundamental laws, or control over individuals; and the union of the colonies, so far as a union had taken place, was one from which any colony could withdraw at any time, without violating any legal obligation. In addition to this, the popular feeling on the subject of the grievances existing, and of the measures that ought to be taken for redress, was quite different in the different colonies, before the Declaration of Independence was adopted. The leading patriotic or Whig colonies made common cause with each other, with great spirit and energy, and the more lukewarm followed, but with unequal steps.[71] Virginia had, upon the whole, less to complain of than Massachusetts; but she adopted the whole quarrel of her Northern sister, with the firmness of her Washington and the ardor of her Henry. New York, on the other hand, for a considerable period, and down to the month of January, 1775, stood nearly divided between the Whigs and the Tories, and did not choose its delegates to the second Congress until the 20th of April,--twenty days only before that body assembled.[72] One of the most striking illustrations, both of the character of the revolutionary government and of the state of the country, is presented by the proceedings respecting the Loyalists, or, as they were called, the Tories. This is not the place to consider whether the American Loyalists were right or wrong in adhering to the crown. Ample justice is likely to be done, in American history, to the characters and motives of those among them whose characters and motives were pure. From a sense of duty, or from cupidity, or from some motive, good or bad, they made their election to adhere to the public enemy; and they were, therefore, rightfully classed, according to their personal activity and importance, among the enemies of the country, by those whose business it was to conduct its affairs and to fight its battles. General Washington was, at a very early period, of opinion, that the most decisive steps ought to be taken with these persons; and he seems at first to have acted as if it belonged, as in fact it did properly belong, to the commander of the continental forces to determine when and how they should be arrested. He first had occasion to act upon the subject in November, 1775, when he sent Colonel Palfrey, one of his aids, into New Hampshire, with orders to seize every officer of the royal government, who had given proofs of an unfriendly disposition to the American cause, and when he had secured them, to take the opinion of the Provincial Congress, or Committee of Safety, in what manner to dispose of them in that Province.[73] Early in the month of January, 1776, General Washington was led to suppose that the enemy were about to send from Boston a secret expedition by water, for the purpose of taking possession of the city of New York; and it was believed that a body of Tories on Long Island, where they were numerous, were about rising, to join the enemy's forces on their arrival. While Washington was deliberating whether he should be warranted in sending an expedition to check this movement and to prevent the city from falling into the hands of the enemy, without first applying to Congress for a special authority, he received a letter from Major-General Charles Lee, offering to go into Connecticut, to raise volunteers, and to march to the neighborhood of New York, for the purpose of securing the city and suppressing the anticipated insurrection of the Tories.[74] He was inclined to adopt Lee's suggestion, but doubted whether he had power to disarm the people of an entire district, as a military measure, without the action of the civil authority of the Province. Upon this point, he consulted Mr. John Adams, who was then attending the Provincial Congress of Massachusetts. Mr. Adams gave it, unhesitatingly, as his clear opinion, that the commission of the Commander-in-chief extended to the objects proposed in General Lee's letter; and he reminded General Washington, that it vested in him full power and authority to act as he should think for the good and welfare of the service.[75] Lee was thereupon authorized to raise volunteers and to proceed to the city of New York, which he was instructed to prevent from falling into the hands of the enemy, by putting it into the best posture of defence and by disarming all persons upon Long Island and elsewhere, (and, if necessary, by otherwise securing them,) whose conduct and declarations had rendered them justly suspected of designs unfriendly to the views of the Congress.[76] At the same time, General Washington wrote to the Committee of Safety of New York, informing them of the instructions which he had given to General Lee, and requesting their assistance; but without placing Lee under their authority.[77] * * * * * It happened, that at this time, while Washington was considering the expediency of sending this expedition, the Congress had under consideration the subject of disarming the Tories in Queen's County, Long Island, where the people had refused to elect members to the Provincial Convention.[78] Two battalions of minute-men had been ordered to enter that county, at its opposite sides, on the same day, and to disarm every inhabitant who had voted against choosing members to the Convention.[79] A part of these orders were suddenly countermanded, and in place of the minute-men from Connecticut, three companies were ordered to be detailed for this service from the command of Lord Stirling. This change in the original plan was made on the 10th of January; and when Washington received notice of it from Lee, he seems to have understood it as an abandonment of the whole scheme of the expedition,--a course which he deeply regretted.[80] He thought, that the period had arrived when nothing less than the most decisive measures ought to be pursued; that the enemies of the country were sufficiently numerous on the other side of the Atlantic, and that it was highly important to have as few internal ones as possible. But supposing that Congress had changed their determination, he directed Lee to disband his troops so soon as circumstances would in his judgment admit of it.[81] Lee was at this time at Stamford in Connecticut, with a body of about twelve hundred men, whom he had raised in that colony, preparing to march to New York to execute the different purposes for which he had been detached. On the 22d of January,--the day before the date of General Washington's letter to him directing him to disband his forces,--he had written to the President of Congress, urging in the strongest terms the expediency of seizing and disarming the Tories;[82] and he immediately communicated to Washington the fact of his having done so. Washington wrote again on the 30th, informing Lee that General Clinton had gone from Boston on some expedition with four or five hundred men; that there was reason to believe that this expedition had been sent on the application of Tryon, the royal Governor of New York, who, with a large body of the inhabitants, would probably join it; and that the Tories ought, therefore, to be disarmed at once, and the principal persons among them seized. He also expressed the hope that Congress would empower General Lee to act conformably to both their wishes; but that, if they should order differently, their directions must be obeyed.[83] General Washington was mistaken in supposing that Congress had resolved to abandon the expedition against the Tories of Queen's County. That expedition had actually penetrated the county, under Colonel Heard, who had arrested nineteen of the principal inhabitants and conducted them to Philadelphia. Congress directed them to be sent to New York, and delivered to the order of the Convention of that Colony, until an inquiry could be instituted by the Convention into their conduct, and a report thereon made to Congress.[84] This destination of the prisoners had become necessary, in consequence of the local fears and jealousies excited by the approach of General Lee to the city of New York, at the head of a force designed to prevent it from falling into the possession of the enemy. The inhabitants of the city were not a little alarmed at the idea of its becoming a post to be contended for; and the Committee of Safety wrote to General Lee earnestly deprecating his approach.[85] Lee replied to them, and continued his march, inclosing their letter to Congress. It was received in that body on the 26th, and a committee of three members was immediately appointed to repair to New York, to consult and advise with the Council of Safety of the Colony, and with General Lee, respecting the defence of the city.[86] The Provincial Congress of New York were in session at the time of the arrival of this committee,[87] and, in consequence of the temper existing in that body and in the local committees, the Continental Congress found themselves obliged to recede from the course which they had taken of disarming the Tories of Queen's County by their own action, and to submit the whole subject again to the colonial authorities everywhere, by a mere recommendation to them to disarm all persons, within their respective limits, notoriously disaffected to the American cause.[88] Thus, after having resolved on the performance of a high act of sovereignty, which was entirely within the true scope of their own powers, and eminently necessary, the Congress was obliged to content itself with a recommendation on the subject to the colonial authorities; not only because it felt itself, as a government, far from secure of the popular coöperation in many parts of the country, but because it had not finally severed the political tie which had bound the country to the crown of Great Britain, and because it had no civil machinery of its own, through which its operations could be conducted. Another topic, which illustrates the character of the early revolutionary government, is the entire absence, at the period now under consideration, of a proper national tribunal for the determination of questions of Prize;--a want which gave General Washington great trouble and embarrassment, during his residence at Cambridge and for some time afterwards. As this subject is connected with the origin of the American Navy, a brief account may here be given of the commencement of naval operations by the United Colonies. * * * * * When General Washington arrived at Cambridge, no steps had been taken by the Continental Congress towards the employment of any naval force whatever. In June, 1775, two small schooners had been fitted out by Rhode Island, to protect the waters of that Colony from the depredations of the enemy; and in the same month, the Provincial Congress of Massachusetts resolved to provide six armed vessels; but none of them were ready in the month of October.[89] In the early part of that month, the first movement was made by the Continental Congress towards the employment of any naval force. General Washington was then directed to fit out two armed vessels, with all possible despatch, to sail for the mouth of the St. Lawrence, in order to intercept certain ships from England bound to Quebec with powder and stores. He was to procure these vessels from the government of Massachusetts.[90] The authorities of Massachusetts had then made no such provision; but in the latter part of August, General Washington had, on the broad authority of his commission, proceeded to fit out six armed schooners, to cruise in the waters of Massachusetts Bay, so as to intercept the enemy's supplies coming into the port of Boston. One of them sailed in September, and in the course of a few weeks they were all cruising between Cape Ann and Cape Cod.[91] On the 17th of September, 1775, the town of Falmouth in Massachusetts (now Portland in Maine) was burnt by the enemy. This act stimulated the Continental Congress to order the fitting out of two armed vessels on the 26th of October, and of two others, on the 30th. It also stimulated the Massachusetts Assembly to issue letters of marque and reprisal, and to pass an act establishing a court to try and condemn all captures made from the enemy, by the privateers and armed vessels of that Colony. In the autumn of this year, therefore, there were two classes of armed vessels cruising in the waters of Massachusetts: one consisting of those sailing under the continental authority, and the other consisting of those sailing under the authority of the Massachusetts Assembly. Captures were made by each, and some of those sailing under the continental authority were quite successful. Captain Manly, commanding the Lee, took, in the latter part of November, a valuable prize, with a large cargo of arms, ammunition, and military tools; and several other captures followed before any provision had been made for their condemnation,--a business which was thus thrown entirely upon the hands of General Washington. The court established by the Legislature of Massachusetts, at its session in the autumn of 1775, for the trial and condemnation of all captures from the enemy, was enabled to take cognizance only of captures made by vessels fitted out by the Province, or by citizens of the Province. As the cruisers fitted out at the continental expense did not come under this law, General Washington early in November called the attention of Congress to the necessity of establishing a court for the trial of prizes made by continental authority.[92] On the 25th of November, the Congress passed resolves ordering all trials of prizes to be held in the court of the colony into which they should be brought, with a right of appeal to Congress.[93] But these resolves do not seem to have been, for a considerable period of time, communicated to General Washington; for, during the months of November, December, and January, he supposed it to be necessary for him to attend personally to the adjudication of prizes made by continental vessels,[94] and it was not until the early part of February that the receipt of the resolves of Congress led to a resort to the jurisdiction of the admiralty court of Massachusetts. When, however, this was done, an irreconcilable difference was found to exist between the resolves of Congress and the law of the Colony respecting the proceedings; the trials were stopped for a long time, to enable the General Court of Massachusetts to alter their law, so as to make it conform to the resolves; and in the mean while, many of the captors, weary of the law's delay, applied, without waiting for the decisions, for leave to go away, which General Washington granted.[95] As late as the 25th of April, 1776, there had been no trials of any of the prizes brought into Massachusetts Bay. At that date, General Washington wrote to the President of Congress, from New York, that some of the vessels which he had fitted out were laid up, the crews being dissatisfied because they could not obtain their prize-money; that he had appealed to the Congress on the subject; and that, if a summary way of proceeding were not resolved on, it would be impossible to have the continental vessels manned. At this time Captain Manly and his crew had not received their share of the valuable prize taken by them in the autumn previous.[96] * * * * * Another remarkable defect in the revolutionary government was found in the mode in which it undertook to supply the means of defraying the public expenses. It was a government entirely without revenues of any kind; for, in constituting the Congress, the colonies had not clothed their delegates with power to lay taxes, or to establish imposts. At the time when hostilities were actually commenced, the commerce of the country was almost totally annihilated; so that if the Congress had possessed power to derive a revenue from commerce, little could have been obtained for a long period after the commencement of the war. But the power did not exist; money in any considerable quantity could not be borrowed at home; the expedient of foreign loans had not been suggested; and consequently the only remaining expedient to which the Congress could resort was, like other governments similarly situated, to issue paper money. The mode in which this was undertaken to be done was, in the first instance, to issue two millions of Spanish milled dollars, in the form of bills, of various denominations, from one dollar to eight dollars each, and a few of twenty dollars, designed for circulation as currency. The whole number of bills which made up the sum of $2,000,000 was 403,800.[97] The next emission amounted to $1,000,000, in bills of thirty dollars each, and was ordered on the 25th of July.[98] When the bills of the first emission were prepared, it would seem to have been the practice to have them signed by a committee of the members; but this was found so inconvenient, from the length of time during which it withdrew the members from the other business of Congress, that, when the second emission was ordered, a committee of twenty-eight citizens of Philadelphia was appointed for the purpose, and the bills were ordered to be signed by any two of them.[99] At this time, no continental Treasurers had been appointed.[100] Such a clumsy machinery was poorly adapted to the supply of a currency demanded by the pressing wants of the army and of the other branches of the public service. The signers of the bills were extremely dilatory in their work. In September, 1775, the paymaster and commissary, at Cambridge, had not a single dollar in hand, and they had strained their credit, for the subsistence of the army, to the utmost; the greater part of the troops were in a state not far from mutiny, in consequence of the deduction which had been made from their stated allowance; and there was imminent danger, if the evil were not soon remedied, and greater punctuality observed, that the army would absolutely break up. In November, General Washington deemed it highly desirable to adopt a system of advanced pay, but the unfortunate state of the military chest rendered it impossible. There was not cash sufficient to pay the troops for the months of October and November. Through the months of December and January, the signing of the bills did not keep pace with the demands of the army, notwithstanding General Washington's urgent remonstrances; and in February his wants became so pressing, that he was obliged to borrow twenty-five thousand pounds of the Province of Massachusetts Bay, in order that the recruiting service might not totally cease.[101] These facts show significantly, that, before the Declaration of Independence, scarcely any progress had been made towards the formation of a national government with definite powers and appropriate departments. In matters of judicature, and in measures requiring executive functions and authority, the Congress were obliged to rely almost entirely upon the local institutions and the local civil machinery of the different colonies; while, in all military affairs, the very form of the revolutionary government was unfavorable to vigor, despatch, and consistent method. There were also causes existing in the temper and feelings of many of the members of that government, both before and after the Declaration of Independence, which, at times, prevented the majority from acting with the decision and energy demanded by the state of their affairs. Many excellent and patriotic men in the Congress of 1775-6, while they concurred fully in the necessity for resistance to the measures of the British ministry, and had decided, or were fast deciding, that a separation must take place, still entertained a great jealousy of standing armies. This jealousy began to exhibit itself very soon after the appointment of the Commander-in-chief, and was never wholly without influence in the proceedings of Congress during the entire period of the war. It led to a degree of reliance upon militia, which, in the situation of the colonies, was too often demonstrated to be a weak and fatal policy.[102] * * * * * NOTE TO PAGE 51. ON THE DECLARATION OF INDEPENDENCE. The Declaration of Independence was drawn by Thomas Jefferson; and the circumstances under which he was selected for this honorable and important task have been for more than a quarter of a century somewhat in doubt, and that doubt has been increased by the recent publication of a part of the Works of Mr. John Adams. The evidence on the subject is to be derived chiefly from statements made by both of these eminent persons in their memoirs, and in a letter written by each of them. We have seen, in a former note, that in 1822 Mr. Adams declared, that had it not been for a conversation which occurred in 1775, before the meeting of the Congress of that year, between himself and his Massachusetts colleagues and certain of the Philadelphia "sons of liberty," in which the Massachusetts members were advised to concede precedence to Virginia, from motives of policy, and but for the principles, facts, and motives suggested in that conversation, many things would not have happened which did occur, and among them, that Mr. Jefferson never would have been the author of the Declaration of Independence. In regard to the same speculation, concerning the election of Washington as Commander-in-chief, I have ventured, on Mr. Adams's own authority, to suggest doubts whether that election ought now to be considered to have turned upon motives which Mr. Adams made so prominent in 1822. In regard to the authorship of the Declaration of Independence, I shall only endeavor to state fairly and fully the conflicting evidence, in order that the reader may judge what degree of weight ought to be assigned to the cause, _without_ which Mr. Adams supposed Mr. Jefferson would not have been selected to draft it. Mr. Jefferson, as it appeared when his writings came to be published in 1829, wrote in 1821, when at the age of seventy-seven, a memoir of some of the public transactions in which he had been engaged. At this time, he had in his possession a few notes of the debates which took place in Congress on the subject of Independence, and which he made at the time. These notes he inserted bodily, as they stood, in his memoir, and they are so printed. (Jefferson's Works, I. 10-14.) They are easily distinguishable from the text of the memoir, but they do not appear to throw any especial light upon the fact now in controversy; although, as Mr. Jefferson, in 1823, when writing on this subject, supported his recollection by "written notes, taken at the moment and on the spot," it is proper to allow that those notes may in some way have aided his memory, although we cannot now see in what way they did so. He made this latter reference in a letter which he wrote to Mr. Madison, in reply to the statements in Mr. Adams's letter to Timothy Pickering, under date of August 6, 1822. (Jefferson's Works, IV. 375, 376.) At or near the beginning of the present century, Mr. Adams, then about sixty-six, wrote an autobiography, which has recently been published [1850], and in which he gave an account of the authorship of the Declaration. In 1822, when about eighty-six, Mr. Adams wrote the letter to Mr. Pickering, which called forth Mr. Jefferson's contradiction in his letter to Mr. Madison, under date of August 30, 1823. (Adams's Works, II. 510-515.) Mr. Jefferson, in his memoir written in 1821, states simply that the committee for drawing the Declaration desired him to do it; that he accordingly wrote it, and that, being approved by the committee, he reported it to the Congress on Friday, the 28th of June, when it was read and ordered to lie on the table; and that on Monday, the 1st of July, the Congress, in committee of the whole, proceeded to consider it. "The pusillanimous idea," he continues, "that we had friends in England worth keeping terms with, still haunted the minds of many. For this reason, those passages which conveyed censures on the people of England were struck out, lest they should give them offence. The clause, too, reprobating the enslaving the inhabitants of Africa, was struck out in complaisance to South Carolina and Georgia, who had never attempted to restrain the importation of slaves, and who, on the contrary, wished to continue it. Our Northern brethren, also, I believe, felt a little tender under those censures; for though their people had very few slaves themselves, yet they had been pretty considerable carriers of them to others. The debates having taken up the greater parts of the 2d, 3d, and 4th days of July, were, on the evening of the last, closed." (Jefferson's Works, I. 14, 15.) In Mr. Adams's autobiography, the following account is given:--"The Committee of Independence were Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert R. Livingston. Mr. Jefferson had been now about a year a member of Congress, but had attended his duty in the house a very small part of the time, and, when there, had never spoken in public. During the whole time I sat with him in Congress, I never heard him utter three sentences together. It will naturally be inquired how it happened that he was appointed on a committee of such importance. There were more reasons than one. Mr. Jefferson had the reputation of a masterly pen; he had been chosen a delegate in Virginia, in consequence of a very handsome public paper which he had written for the House of Burgesses, which had given him the character of a fine writer. Another reason was, that Mr. Richard Henry Lee was not beloved by the most of his colleagues from Virginia, and Mr. Jefferson was set up to rival and supplant him. This could be done only by the pen, for Mr. Jefferson could stand no competition with him or any one else in elocution and public debate.... The committee had several meetings, in which were proposed the articles of which the Declaration was to consist, and minutes made of them. The committee then appointed Mr. Jefferson and me to draw them up in form, and clothe them in a proper dress. The sub-committee met, and considered the minutes, making such observations on them as then occurred, when Mr. Jefferson desired me to take them to my lodgings, and make the draft. This I declined, and gave several reasons for declining: 1. That he was a Virginian, and I a Massachusettensian. 2. That he was a Southern man, and I a Northern one. 3. That I had been so obnoxious for my early and constant zeal in promoting the measure, that any draft of mine would undergo a more severe scrutiny and criticism in Congress than one of his composition. 4. And lastly, and that would be reason enough if there were no other, I had a great opinion of the elegance of his pen, and none at all of my own. I therefore insisted that no hesitation should be made on his part. He accordingly took the minutes, and in a day or two produced to me his draft. Whether I made or suggested any corrections I remember not. The report was made to the committee of five, by them examined, but whether altered or corrected in any thing, I cannot recollect. But, in substance, at least, it was reported to Congress, where, after a severe criticism, and striking out several of the most oratorical paragraphs, it was adopted on the 4th of July, 1776, and published to the world." (Adams's Works, II. 511-515.) The account in Mr. Adams's letter to Mr. Pickering is as follows:--"You inquire why so young a man as Mr. Jefferson was placed at the head of the committee for preparing a Declaration of Independence? I answer, it was the Frankfort advice to place Virginia at the head of every thing. Mr. Richard Henry Lee might be gone to Virginia, to his sick family, for aught I know; but that was not the reason of Mr. Jefferson's appointment. There were three committees appointed at the same time. One for the Declaration of Independence, another for preparing Articles of Confederation, and another for preparing a treaty to be proposed to France. Mr. Lee was chosen for the Committee of Confederation, and it was not thought convenient that the same person should be upon both. Mr. Jefferson came into Congress in June, 1775, and brought with him a reputation for literature, science, and a happy talent of composition. Writings of his were handed about, remarkable for their peculiar felicity of expression. Though a silent member in Congress, he was so prompt, frank, explicit, and decisive upon committees and in conversation,--not even Samuel Adams was more so,--that he soon seized upon my heart; and upon this occasion I gave him my vote, and did all in my power to procure the votes of others. I think he had one more vote than any other, and that placed him at the head of the committee. I had the next highest number, and that placed me second. The committee met, discussed the subject, and then appointed Mr. Jefferson and me to make the draft, I suppose because we were the two first on the list. The sub-committee met. Jefferson proposed to me to make the draft. I said, 'I will not.' 'You should do it.' 'O, no.' 'Why will you not? You ought to do it.' 'I will not.' 'Why?' 'Reasons enough.' 'What can be your reasons?' 'Reason first,--You are a Virginian, and a Virginian ought to appear at the head of this business. Reason second,--I am obnoxious, suspected, and unpopular. You are very much otherwise. Reason third,--You can write ten times better than I can.' 'Well,' said Jefferson, 'if you are decided, I will do as well as I can.' 'Very well. When you have drawn it up, we will have a meeting.' "A meeting we accordingly had, and conned the paper over. I was delighted with its high tone and the flights of oratory with which it abounded, especially that concerning negro slavery, which, though I knew his Southern brethren would never suffer to pass in Congress, I certainly never would oppose. There were other expressions which I would not have inserted, if I had drawn it up, particularly that which called the King tyrant. I thought this too personal; for I never believed George to be a tyrant in disposition and in nature; I always believed him to be deceived by his courtiers on both sides of the Atlantic, and in his official capacity only, cruel. I thought the expression too passionate, and too much like scolding, for so grave and solemn a document; but as Franklin and Sherman were to inspect it afterwards, I thought it would not become me to strike it out. I consented to report it, and do not now remember that I made or suggested a single alteration. "We reported it to the committee of five. It was read, and I do not remember that Franklin or Sherman criticized any thing. We were all in haste. Congress was impatient, and the instrument was reported, as I believe, in Jefferson's handwriting, as he first drew it. Congress cut off about a quarter of it, as I expected they would; but they obliterated some of the best of it, and left all that was exceptionable, if any thing in it was. I have long wondered that the original draft has not been published. I suppose the reason is, the vehement philippic against negro slavery. "As you justly observe, there is not an idea in it but what had been hackneyed in Congress for two years before. The substance of it is contained in the declaration of rights and the violation of those rights, in the Journals of Congress, in 1774. Indeed, the essence of it is contained in a pamphlet, voted and printed by the town of Boston, before the first Congress met, composed by James Otis, as I suppose, in one of his lucid intervals, and pruned and polished by Samuel Adams." Mr. Jefferson, on the contrary, in his letter to Mr. Madison, says:--"These details are quite incorrect. The committee of five met; no such thing as a sub-committee was proposed, but they unanimously pressed on myself alone to undertake the draft. I consented; I drew it; but, before I reported it to the committee, I communicated it _separately_ to Doctor Franklin and Mr. Adams, requesting their correction, because they were the two members of whose judgments and amendments I wished most to have the benefit, before presenting it to the committee; and you have seen the original paper now in my hands, with the corrections of Doctor Franklin and Mr. Adams interlined in their own handwritings. Their alterations were two or three only, and merely verbal. I then wrote a fair copy, reported it to the committee, and from them, unaltered, to Congress. This personal communication and consultation with Mr. Adams he has misremembered into the actings of a sub-committee. Pickering's observations, and Mr. Adams's in addition, 'that it contained no new idea, that it is a commonplace compilation, its sentiments hackneyed in Congress for two years before, and its essence contained in Otis's pamphlet,' may all be true. Of that I am not to be the judge. Richard Henry Lee charged it as copied from Locke's Treatise on Government. Otis's pamphlet I never saw, and whether I had gathered my ideas from reading or reflection I do not know. I know only that I turned to neither book nor pamphlet while writing it. I did not consider it as any part of my charge to invent new ideas altogether, and to offer no sentiment which had ever been expressed before. Had Mr. Adams been so restrained, Congress would have lost the benefit of his bold and impressive advocations of the rights of revolution. For no man's confident and fervid addresses, more than Mr. Adams's, encouraged and supported us through the difficulties surrounding us, which, like the ceaseless action of gravity, weighed on us by night and by day. Yet, on the same ground, we may ask what of these elevated thoughts was new, or can be affirmed never before to have entered the conceptions of man? "Whether, also, the sentiment of Independence, and the reasons for declaring it, which make so great a portion of the instrument, had been hackneyed in Congress for two years before the 4th of July, 1776, or this dictum of Mr. Adams be another slip of memory, let history say. This, however, I will say for Mr. Adams, that he supported the Declaration with zeal and ability, fighting fearlessly for every word of it. As to myself, I thought it a duty to be, on that occasion, a passive auditor of the opinions of others, more impartial judges than I could be of its merits or demerits. During the debate I was sitting by Doctor Franklin, and he observed that I was writhing a little under the acrimonious criticisms on some of its parts; and it was on that occasion, that, by way of comfort, he told me the story of John Thomson, the hatter, and his new sign." (Jefferson's Works, IV. 376.) The substantial point of difference in these two accounts of the same transaction, relates to the action of the committee in designating the person or persons who were to prepare the draft of a Declaration. Mr. Adams states that Mr. Jefferson and himself were appointed a sub-committee to prepare it; Mr. Jefferson states that he alone was directed by the committee to write the Declaration. This question is not important, since Mr. Adams's version does not in the least impair Mr. Jefferson's claim to the authorship of the instrument. The latter, it must be allowed, gracefully parries the criticisms of Mr. Adams, by a noble allusion to the eloquence which sustained his compatriots in the difficulties and embarrassments that surrounded them, and which they did not think of analyzing, for the purpose of tracing the exact originality of its sentiments. It is proper to add, that Mr. Jefferson's account is confirmed by the original manuscript draft of the Declaration, a fac-simile of which was published in 1829, in the fourth volume of his Works, exhibiting the corrections and interlineations made by Dr. Franklin and Mr. Adams in their respective handwritings. These emendations were not important. The reasons assigned by Mr. Adams for the selection of Mr. Jefferson as the writer of the Declaration are so numerous, that it is difficult to determine which of them he intended should be regarded as the principal or decisive one. In the autobiography, he states that there were more reasons than one why Mr. Jefferson was appointed on a committee of such importance. He assigns two reasons: one, Mr. Jefferson's reputation as a writer, and the other, the desire of his Virginia colleagues to have Mr. Jefferson supplant Mr. Richard Henry Lee. In his letter to Mr. Pickering, Mr. Adams gives as the reason why Mr. Jefferson was placed at the head of the committee, that it was "the Frankfort advice to place Virginia at the head of every thing"; but he also adds, that Mr. Jefferson brought with him to Congress "a reputation for literature, science, and a happy talent of composition," and that this reputation had then been sustained by writings "remarkable for their peculiar felicity of expression." As in the case of Washington, therefore, it would seem that there were reasons of eminent fitness and qualification for the duty assigned; and certainly the Declaration of Independence itself fully justifies the selection. Few state papers have ever been written with more skill, or greater adaptation to the purposes in view. Whether its sentiments were purely original with its author, or were gathered from the political philosophy which had become familiar to the American mind, through the great discussions of the time, it must for ever remain an imperishable monument of his power of expression, and his ability to touch the passions, as well as to address the reason, of mankind. It would be inappropriate to apply to its style the canons of modern criticism. Its statements of political truth, taken in the sense in which they were manifestly intended, can never be successfully assailed. With regard to the passage concerning slavery, we may well conceive that both Northern and Southern men might have felt the injustice of the terrible denunciation with which he charged upon _the King_ all the horrors, crimes, and consequences of the African slave-trade, and in which he accused him of exciting the slaves to insurrection, and "to purchase the liberty of which _he_ had deprived them by murdering the people upon whom _he_ had obtruded them." Mr. Jefferson, in drawing up the list of our national accusations against the King, obviously intended to refer to him as the representative of the public policy and acts of the mother country; and it is true that the imperial government was, and must always remain, responsible for the existence of slavery in the colonies. But this was not one of the grievances to be redressed by the Revolution; it did not constitute one of the reasons for aiming at independence; and there was no sufficient ground for the accusation that the government of Great Britain had knowingly sought to excite general insurrections among the slaves. The rejection of this passage from the Declaration shows that the Congress did not consider this charge to be as tenable as all their other complaints certainly were. FOOTNOTES: [53] Richard Henry Lee, the mover of this resolution, was born on the 20th of June, 1732, at Stratford, Westmoreland County, Virginia. His earlier education was completed in England, whence he returned in his nineteenth year. Possessed of a good fortune, he devoted himself to public affairs. At the age of twenty-five, he entered the House of Burgesses, where he became a distinguished advocate of republican doctrines, and a strenuous opponent of the right claimed by Parliament to tax the colonies, of the Stamp Act, and of the other arbitrary measures of the home government, coöperating with Patrick Henry in all his great patriotic efforts. He was the author of the plan adopted by the House of Burgesses in 1773, for the formation of committees of correspondence, to be organized by the colonial legislatures, and out of which grew the plan of the Continental Congress. In 1774, he was elected one of the delegates from Virginia to the Congress, in which body, from his known ability as a political writer and his services in the popular cause, he was placed on the committees to prepare the addresses to the King, to the People of Great Britain, and to the People of the Colonies, the last of which he wrote. In the second Congress, he was selected to move the resolution of Independence; and besides serving on other very important committees, he furnished, as chairman of the committee instructed to prepare them, the commission and instructions to General Washington. As mover of the resolution of Independence, he would, according to the usual practice, have been made chairman of the committee to prepare the Declaration; but on the 10th of June, the day when the subject was postponed, he was obliged to leave Congress, and return home for a short time, on account of the illness of some member of his family. He came back to Congress and remained a member until June, 1777, when he went home on account of ill health. In August, 1778, he was again elected a member, and continued to serve until 1780; but from feeble health was compelled to take a less active part than he had taken in former years. He was out of Congress from 1780 until 1784, when he was elected its President, but retired at the end of the year. He was opposed to the Constitution of the United States, but voted in Congress to submit it to the people. After its adoption, he was elected one of the first Senators under it from Virginia, and in that capacity moved and carried several amendments. In 1792, his continued ill health obliged him to retire from public life. He died June 19, 1794. [54] Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and R. R. Livingston. [55] See note at the end of the chapter. [56] On the 24th of June, 1776, the Congress declared, by resolution, that "all persons abiding within any of the United Colonies, and deriving protection from the laws of the same, owed allegiance to the said laws, and were members of such colony; and that all persons passing through or making a temporary stay in any of the colonies, being entitled to the protection of the laws, during the time of such passage, visitation, or temporary stay, owed, during the same, allegiance thereto." Journals, II. 216. [57] The title of "The United States of America" was formally assumed in the Articles of Confederation, when they came to be adopted. But it was in use, without formal enactment, from the date of the adoption of the Declaration of Independence. On the 9th of September, 1776, it was ordered that in all continental commissions and other instruments, where the words "United Colonies" had been used, the style should be altered to the "United States." Journals, II. 349. [58] Journals, II. 263, 320; III. 123, 502, 513. [59] From June 11, 1776, to November 17, 1777. [60] Sparks's Washington, III. 20, note. [61] Works, III. 20. [62] Ibid. 46. [63] Ibid. 47. [64] Ibid. 55. [65] Ibid. 56. [66] Letters of General Washington to the President of Congress, September 21, 1775 (Works, III. 98); October 30, 1775 (Ibid. 137); November 8, 1775 (Ibid. 146). [67] Letters of General Washington to Joseph Reed, November 8, 1775 (Works, III. 150); November 28, 1775 (Ibid. 177); and to the President of Congress, December 4, 1775 (Ibid. 184); to Governor Cooke of Connecticut, December 5, 1775 (Ibid. 188). [68] Journals of Congress, II. 208, September 29, 1775. [69] Writings of Washington, III. 123, note. [70] February 9, 1776 (Works, III. 278). [71] Mr. Jefferson once said to my kinsman, Mr. George Ticknor, that when they had any doubtful and difficult measure to carry in this Congress, they counted the four New England colonies, and Virginia, as _sure_; and then they looked round to see where they could get two more, to make the needful majority. [72] The General Assembly of New York met on the 10th of January, 1775, and by a small majority refused to approve of the non-importation association formed by the first Congress, and also declined to appoint delegates to the second Congress, which was to assemble in May. They adopted, however, a list of grievances, which was substantially the same with that which had been put forth by the first Congress. Towards the close of the session, in the absence of some of the patriotic members, petitions to the King and to Parliament were adopted, which differed somewhat from the principles contained in their list of grievances, and in which they disapproved "of the violent measures that had been pursued in some of the colonies." But the people of New York generally conformed to the non-importation agreement; and on the 20th of April they met in convention and appointed delegates to the second Congress, "to concert and determine upon such matters as shall be judged most advisable for the preservation and reëstablishment of American rights and privileges." Pitkin's History of the United States, I. 324. [73] "I do not mean," the orders continued, "that they should be kept in close confinement. If either of these bodies should incline to send them to any interior towns, upon their parole not to leave them until they are released, it will meet with my concurrence. For the present, I shall avoid giving you the like order in respect to the Tories in Portsmouth; but the day is not far off, when they will meet with this, or a worse fate, if there is not a considerable reformation in their conduct." Writings of Washington, III. 158, 159. [74] Writings of Washington, III. 230, note. [75] Writings of Washington, III. 230, note. See also Marshall's Life of Washington, II. 285-287. [76] Writings of Washington, III. 230. [77] Ibid., note. [78] Journals of Congress, II. 7-9. January 3, 1776. Congress had, on the 2d of January, passed resolves, recommending to the different assemblies, conventions, and committees or councils of safety, to restrain the Tories, and had declared that they ought to be disarmed, and the more dangerous of them kept in custody. For this purpose, the aid of the continental troops stationed in or near the respective colonies was tendered to the local authorities. Journals, II. 4, 5. [79] The resolves of the Congress on this subject amounted to an outlawry of the persons against whom they were directed. They were introduced by a preamble, reciting the disaffection of a majority of the inhabitants of Queen's County, evinced by their refusal to elect deputies to the convention of the colony, by their public declaration of a design to remain inactive spectators of the contest, and their general want of public spirit; and declaring, that "those who refuse to defend their country should be excluded from its protection, and prevented from doing it injury." The first resolve then proceeded to declare that all the inhabitants of Queen's County named in a list of delinquents published by the Convention of New York be put out of the protection of the United Colonies, that all trade and intercourse with them cease, and that no inhabitant of that county be permitted to travel or abide in any part of the United Colonies, out of that county, without a certificate from the Convention or Committee of Safety of New York, setting forth that such inhabitant is a friend to the American cause, and not of the number of those who voted against sending deputies to the Convention; and that any inhabitant found out of the county, without such certificate, be apprehended and imprisoned three months. The second resolve declared that any attorney or lawyer who should commence, prosecute, or defend any action at law, for any inhabitant of Queen's County who voted against sending deputies to the Convention, ought to be treated as an enemy to the American cause. The fourth resolve directed that Colonel Nathaniel Heard, of Woodbridge, N. J., should march, with five or six hundred minute-men, to the western part of Queen's County, and that Colonel Waterbury, of Stamford, Connecticut, with the same number of minute-men, march to the eastern side; that they confer together and endeavor to enter the county on the same day, and that they proceed to disarm every person in the county who voted against sending deputies to the Convention, and cause them to deliver up their arms and ammunition on oath, and confine in safe custody, until further orders, all those who should refuse compliance. These resolves were passed on the 3d of January, 1776, and were reported by a committee on the state of New York. On the 10th of January, on account of "the great distance from Colonel Heard to Colonel Waterbury, and the difficulty of coöperating with each other in their expedition into Queen's County," Congress directed Lord Stirling to furnish Colonel Heard with three companies from his command, who were to join Colonel Heard with his minute-men, and proceed immediately on the expedition; and also directed Heard to inform Waterbury that his services would not be required. Journals, II. 21. [80] He received this impression from General Lee, who wrote on the 16th of January and informed him that Colonel Waterbury had "received orders to disband his regiment, and the Tories are to remain unmolested till they are joined by the King's assassins." Sparks's Life of Gouverneur Morris, I. 75. [81] Letter to General Lee, January 23, 1776. Writings of Washington, III. 255. [82] Marshall's Life of Washington, II., Appendix, xvii. [83] Letter to General Lee, January 31, 1776. Writings of Washington, III. 275. [84] February 6, 1776. Journals, II. 51. [85] Sparks's Life of Gouverneur Morris, I. 75, 76. They wished to "save appearances with the [enemy's] ships of war, till at least the month of March." [86] January 26, 1776. Journals, II. 39. [87] January 30. [88] March 14, 1776. Journals, II. 91. [89] Letter of General Washington to the President of Congress. [90] Resolve passed October 5, 1775. Journals of Congress, II. 197. [91] These vessels were fitted out from the ports of Salem, Beverly, Marblehead, and Plymouth. They were officered and manned chiefly by sea-captains and sailors who happened to be at that time in the army. They sailed under instructions from General Washington, to take and seize all vessels in the ministerial service, bound into or out of Boston, having soldiers, arms and ammunition, or provisions on board, and to send them into the nearest port, under a careful prize-master, to wait his further directions. The first person commissioned in this way by the Commander-in-chief was Captain Nicholas Broughton of Marblehead, who sailed in the schooner Hannah, fitted out at Beverly; and in his instructions he was described as "a captain in the army of the United Colonies of North America," and was directed to take the command of "a detachment of said army, and proceed on board the schooner Hannah, lately fitted out, &c. at the continental expense." Another of these vessels, called the Lee, was commanded by Captain John Manly. The names of three others of them were the Harrison, the Washington, and the Lynch. The name of the sixth vessel is not known, but the names of the four other captains were Selman, Martindale, Coit, and Adams. (Writings of Washington, III. 516.) When Washington received directions from the President of Congress to send two vessels to the mouth of the St. Lawrence, he wrote, on the 12th of October, that one of these vessels was then out, and that two of them would be despatched as directed, immediately. (Ibid., III. 124.) In the course of a few weeks, they were all out. [92] Letter to the President of Congress, November 11, 1775. Writings of Washington, III. 154. [93] Journals, I. 260. [94] On the 4th of December, he repeated his former recommendation to the President of Congress. (Writings of Washington, III. 184.) On the 26th of December, he wrote to Richard Henry Lee, in Congress, begging him to use his influence in having a court of admiralty or some power appointed to hear and determine all matters relative to captures; saying, "You cannot conceive how I am plagued on this head, and how impossible it is for me to hear and determine upon matters of this sort, when the facts, perhaps, are only to be ascertained at ports forty, fifty, or more miles distant, without bringing the parties here [Cambridge] at great trouble and expense. At any rate, my time will not allow me to be a competent judge of this business." Ibid., III. 217. [95] Letter to the President of Congress, February 9, 1776. Ibid., III. 282. Letter to Joseph Reed, February 10, 1776. Ibid., III. 284. [96] Ibid., III. 370. [97] This was the emission ordered on the 23d of June, 1775. There were _forty-nine thousand_ bills of each denomination from one dollar to eight dollars, inclusive, and _eleven thousand eight hundred_ bills of the denomination of twenty dollars. The form of the bills was as follows (Journals, I. 126):-- CONTINENTAL CURRENCY. No. ________________ Dollars. This Bill entitles the Bearer to receive ________________ Spanish milled Dollars, or the value thereof in Gold or Silver, according to the Resolutions of the Congress, held at Philadelphia on the 10th day of May, A. D. 1775. [98] Journals, I. 177. [99] Journals, I. 126, 177. The signers of the bills were allowed a commission of one dollar and one third of a dollar on each thousand of the bills signed by them. Ibid. [100] Ante, p. 35. [101] Writings of Washington, III. 104, 167, 173, 178, 283. [102] Writings of Washington, III. 278; IV. 115; V. 328. Mr. Sparks has preserved an anecdote, which shows the perpetuation of this feeling about standing armies, and evinces also that Washington possessed more humor than has been generally attributed to him. In the Convention for forming the Constitution of the United States, some member proposed to insert a clause in the Constitution, limiting the army of the United States to _five thousand men_. General Washington, who was in the chair, observed that he should not object to such a clause, if it were so amended as to provide that no enemy should ever presume to invade the United States with more than _three thousand_. CHAPTER IV. JULY, 1776--NOVEMBER, 1777. CONSEQUENCES OF THE DECLARATION OF INDEPENDENCE.--REORGANIZATION OF THE CONTINENTAL ARMY.--FLIGHT OF THE CONGRESS FROM PHILADELPHIA.--PLAN OF THE CONFEDERATION PROPOSED. When the Declaration of Independence at length came, it did not in any way change the form of the revolutionary government. It created no institution, and erected no civil machinery. Its political effect has already been described. Its moral effect, both upon the members of the Congress and upon the country, was very great, inasmuch as it put an end alike to the hope and the possibility of a settlement of the controversy upon the principles of the English Constitution, for it made the colonies free, sovereign, and independent states. Men who had voted for such a measure, and who had put their signatures to an instrument which the British Parliament or the Court of King's Bench could have had no difficulty in punishing as treasonable, could no longer continue to feed themselves on "the dainty food of reconciliation."[103] Thenceforward, there was no retreat. The colonies might be conquered, overrun, and enslaved; but this, or the full and final establishment of their own sovereignty, were the sole alternatives. The consequence was, that the Declaration was followed by a greater alacrity on the part of the whole body of the Congress to adopt vigorous and decisive measures, than had before prevailed among them. But there was one feeling which the Declaration did not dispel, and another to which it immediately gave rise, both of which were unfavorable to concentrated, vigorous, and effective action on the part of the revolutionary government. The Declaration of Independence did not dissipate the unreasonable and ill-timed jealousy of standing armies, which gave way, at last, only when the country was in such imminent peril that Washington felt it to be his duty to ask for extraordinary powers, to be conferred upon himself. It was followed, too, as an immediate consequence, by that jealousy with regard to State rights, and that adhesion to State interests, which have existed in our system from that day to the present, and are not entirely separable from it. As the Declaration made the colonies sovereign and independent, and was followed by the formation of State governments, before the creation of any well-defined national system, State sovereignty became at once an ever-present cause of embarrassment to the Congress, in whose proceedings entire delegations sometimes made the interests of the country bend to the interests of their own State, to a mischievous extent. To explain these observations, we must recur again to the history of the army, and to the efforts of Washington to have the military establishment put into a safe and efficient condition. * * * * * After the evacuation of Boston by the British forces, General Washington proceeded, at once, with the continental army to the city of New York, where he arrived on the 13th of April, 1776. The loss of the battle of Long Island on the 27th of August, and the extreme improbability of his being able to hold the city against the superior forces by which it had been invested through the entire summer, made it necessary for him to appeal once more to the Congress for the organization of a permanent army, capable of offering effectual resistance to the enemy. The establishment formed at Cambridge in the autumn previous was to continue for one year only; it was about to be dissolved; and in the month of September General Washington was compelled to abandon the city of New York to the enemy. Before he withdrew from it, he addressed a letter to the President of Congress, on the 2d of September, in which he told that body explicitly that the liberties of the country must of necessity be greatly hazarded, if not entirely lost, should their defence be left to any but a permanent standing army; and that, with the army then under his command, it was impossible to defend and retain the city.[104] On the 20th of the same month, he again wrote, expressing the opinion that it would be entirely impracticable to raise a proper army, without the allowance of a large and extraordinary bounty.[105] At length, when he had retreated to the Heights of Haerlem, and found himself surrounded by a body of troops impatient of restraint, because soon to be entitled to their discharge, and turbulent and licentious, because they had never felt the proper inducements which create good conduct in the soldier, he made one more appeal to the patriotism and good sense of the Congress. Few documents ever proceeded from his pen more wise, or evincing greater knowledge of mankind, or a more profound apprehension of the great subject before him, than the letter which he then wrote concerning the reorganization of the army.[106] Before this letter was written, however, urged by his repeated requests and admonished by defeat, the Congress had adopted a plan, reported by the Board of War, for the organization of a new army, to serve during the war. A long debate preceded its adoption, but the resolves were at length passed on the 16th of September, 1776.[107] They authorized the enlistment of a body of troops, to be divided into eighty-eight battalions, and to be enlisted as soon as possible. These battalions were to be raised by the States; a certain number being assigned to each State as its quota. The highest quota, which was 15, was assigned to the States of Virginia and Massachusetts, respectively. Pennsylvania had 12; North Carolina, 9; Maryland and Connecticut, 8 each; South Carolina, 6; New York and New Jersey, 4 each; New Hampshire, 3; Rhode Island, 2; and Delaware and Georgia, 1 each. The inducements to enlist were a bounty of twenty dollars and one hundred acres of land to each non-commissioned officer or soldier; and to the commissioned officers, the same bounty in money, with larger portions of land.[108] The States were to provide arms and clothing for their respective quotas, and the expense of clothing was to be deducted from the pay.[109] Although the officers were to be commissioned by the Continental Congress, each State was to appoint the officers of its own battalions, from the colonel to those of the lowest grade, inclusive. A circular letter was addressed by Congress to each State, urging its immediate attention to the raising of these troops; and a committee of three members of the Congress was sent to the head-quarters of General Washington, to confer with him on the subject.[110] Two serious defects in this plan struck the Commander-in-chief, as soon as it was laid before him; but the resolves had been passed, and passed with difficulty, before he had an opportunity specifically to point out the mistakes. In the first place, by giving the appointment of the officers to the States, any central system of promoting or placing the officers then serving on the continental establishment according to their characters and deserts was rendered impossible. The resolutions of Congress did not even recommend these officers to the consideration of their respective States. They were left to solicit their appointments at a distance, or to go home and make personal application. Those who chose to do the latter were more likely to get good places than those who remained at their posts; but they were also less likely to be deserving of important commissions than those who stayed with the army. To expect that a proper attention would be paid to the claims of men of real merit, under such a system,--whether they had or had not been in service before,--or that the army when brought together would be found to be officered on a uniform principle, exhibiting an adaptation of character to station, was, in Washington's view, to expect that local authorities would not be influenced by local attachments, and that merit would make its way, in silence and absence, against personal importunity and bold presumption. But Washington saw no remedy for these evils, except by opening a direct communication with the States, through which he might exert some influence over their appointments. He immediately suggested to the Congress, that each State should send a commission to the army, with authority to appoint all the officers of the new regiments. Congress passed a resolve recommending this step to the States, and advising that the Commander-in-chief should be consulted in making the appointments; that those officers should be promoted who had distinguished themselves for bravery and attention to their duties; that no officer should be appointed who had left his station without leave; and that all the officers to be appointed should be men of honor and known abilities, without particular regard to their having been in service before.[111] This was but a partial remedy for the defects of the system. Several of the States sent such a commission to act with the Commander-in-chief; but many of them were tardy in making their appointments, and finally the Congress authorized General Washington to fill the vacancies. Another and a dangerous defect in this plan was, that the continental pay and bounty on enlistment were fixed so low, that some of the States, in order to fill up their quotas, deemed it expedient to offer a further pay and bounty to their own men. This was done immediately by the States of Connecticut and Massachusetts. The consequence was likely to be, that, if the quotas of some States were raised before the fact became known that other States had increased the pay and the bounty, some regiments would, when the army came together, be on higher pay than others, and jealousy, impatience, and mutiny must inevitably follow. Knowing that a different pay could not exist in the same army without these consequences, General Washington remonstrated with the Governor of Connecticut, arrested the proceedings of the commissioners of that State and of Massachusetts, and prevented them from publishing their terms, until the sense of the Congress could be obtained.[112] That body, on receiving from him another strong representation on the subject, passed a resolve augmenting the pay. * * * * * Still, the system, notwithstanding these efforts to amend it, worked ill. The appointment of the officers by the States was incapable of being well managed; the pay and bounty, even after they were increased, were insufficient; and the whole scheme of raising a permanent army was entered upon at too late a period to be effectually accomplished. As late as the middle of November, so little had been done, that the whole force on one side of the Hudson, opposed to Howe's whole army, did not exceed two thousand men of the established regiments; while, on the other side, there was a force not much larger to secure the passes into the Highlands.[113] "I am wearied almost to death," said the Commander-in-chief, in a private letter, "with the retrograde motion of things, and I solemnly protest that a pecuniary reward of twenty thousand pounds a year would not induce me to undergo what I do; and after all, perhaps, to lose my character, as it is impossible, under such a variety of distressing circumstances, to conduct matters agreeably to public expectation, or even to the expectations of those who employ me, as they will not make proper allowances for the difficulties their own errors have occasioned."[114] There are few pages in our history so painful as those on which are recorded the complaints extorted from Washington, at this period, by the trials of his situation. That he, an accomplished soldier, who had retired with honor from the late war with France to his serene Mount Vernon; who had left it again, to stake life, and all that makes life valuable, on the new issue of his country's independence; who asked no recompense and sought no object but her welfare, should have been compelled to pass into the dark valley of the retreat through New Jersey, with all its perplexities, dangers, and discouragements,--its cruel exertions and its humiliating reverses,--without a powerful and energetic government to lean upon, and with scarcely more than Divine assistance to which to turn, presents, indeed, to our separate contemplation, a disheartening and discreditable fact. But no trials are appointed to nations, or to men, without their fruits. The perplexities and difficulties which surrounded Washington in the early part of the Revolution contributed, undoubtedly, to give him that profound civil wisdom, that knowledge of our civil wants, and that influence over the moral sense of the country, which were afterwards so beneficently felt in the establishment of the Constitution. The very weakness of the government which he served became in this manner his and our strength. Without the trials to which it subjected him, it may well be doubted whether we should now possess that tower of strength,--that security against distracted counsels and clashing interests,--which exist for us in the character and services of that extraordinary man. It is not necessary to sketch the scene or to follow the route of General Washington's retreat through New Jersey, except as they illustrate the subject of this work,--the constitutional history of the country. Its remarkable military story is well known. On the 23d of November, four days after the date of the letter to his brother above quoted, he was at Newark, with a body of troops whose departure was near at hand, and for supplying whose places no provision had been made. The enemy were pressing on his rear, and in order to impress upon Congress the danger of his situation, he sent General Mifflin to lay an exact account of it before them.[115] On the 28th, he marched out of Newark in the morning, and Lord Cornwallis entered it on the afternoon of the same day. On the 30th, he was at Brunswick, endeavoring, but with little success, to raise the militia;--the terms of service of the Jersey and Maryland brigades expiring on that day. On the 1st of December, his army numbered only four thousand men, and the enemy were pushing forward with the greatest energy.[116] On the 5th, he resolved to march back to Princeton; but neither militia nor regulars had come in, and it was too late to prevent an evil, which he had both foreseen and foretold.[117] On the 8th, he crossed the Delaware.[118] On the 12th, he saw his little handful of men still further decrease, and now, without succors from the government, or spirited exertions on the part of the people, the loss of Philadelphia--"an event," said he, "which will wound the heart of every virtuous American"--rose as a spectre in his path.[119] On the 16th, as he moved on, gathering all the great energies of his character to parry this deep disgrace, concentrating every force that remained to him towards the defence of the city, and animating and directing public bodies, in a tone of authority and command, he once more urged the Congress to discard all reliance upon the militia, to augment the number of the regular troops, and to strain every nerve to recruit them.[120] Finally,--being still in doubt whether Howe did not intend an attack on Philadelphia, before going into winter quarters,--with less than three thousand men fit for duty, to oppose a well-appointed army of ten or twelve thousand, and surrounded by a population rapidly submitting to the enemy,--he felt that the time had come, when to his single hands must be given all the military authority and power which the Continental Union of America held in trust for the liberties of the country. On the 20th of December, therefore, he wrote to the President of Congress a memorable letter, asking for extraordinary powers, but displaying at the same time all the modesty and high principle of his character.[121] To this appeal Congress at once responded, in a manner suited to the exigency. On the 27th of December, 1776, they passed a resolution, vesting in General Washington ample and complete power to raise and collect together, in the most speedy and effectual manner from all or any of the United States, sixteen battalions of infantry, in addition to those already voted; to appoint the officers of these battalions; to raise, officer, and equip three regiments of artillery and a corps of engineers, and to establish their pay; to apply to any of the States for such aid of their militia as he might judge necessary; to form such magazines of provisions, and in such places, as he should think proper; to displace and appoint all officers under the rank of brigadier-general; to fill up all vacancies in every other department of the American army; to take, wherever he might be, whatever he might want for the use of the army, if the inhabitants would not sell it, allowing a reasonable price for the same; to arrest and confine persons who should refuse to receive the continental currency, or were otherwise disaffected to the American cause; and to return to the States of which such persons were citizens their names and the nature of their offences, together with the witnesses to prove them. These powers were vested in the Commander-in-chief for the space of six months from the date of the resolve, unless sooner revoked by the Congress.[122] * * * * * The powers thus conferred upon General Washington were in reality those of a military dictatorship; and in conferring them, the Congress acted upon the maxim that the public safety is the supreme law. They acted, too, as if they were the proper judges of the exigency, and as if the powers they granted were then rightfully in their hands. But it is a singular proof of the unsettled and anomalous condition of the political system of the country, and of the want of practical authority in the continental government, that, in three days after the adoption of the resolves conferring these powers, the Congress felt it necessary to address a letter to the Governors of the States, apologizing for this step. Nor was their letter a mere apology. It implied a doubt whether the continental government possessed a proper authority to take the steps which the crisis demanded, and whether the execution of all measures did not really belong to the States, the Congress having only a recommendatory power. "Ever attentive," their letter declared, "to the security of civil liberty, Congress would not have consented to the vesting of such powers in the military department as those which the inclosed resolves convey to the continental Commander-in-chief, if the situation of public affairs did not require, at this crisis, a decision and vigor which distance and numbers deny to assemblies far removed from each other and from the seat of war." The letter closed, by requesting the States to use their utmost exertions to further such levies as the general might direct, in consequence of the new powers given him, and to make up and complete their quotas as formerly settled.[123] Strictly examined, therefore, the position taken by the Congress was, that a crisis existed demanding the utmost decision and vigor; that the measures necessary to meet it, such as the raising of troops and the compulsory levying of supplies, belonged to the States; but that, the State governments being removed from each other and from the seat of war, the Congress confers upon the continental general power to do things which in reality it belongs to the States to do. In this there was a great inaccuracy, according to all our present ideas of constitutional power. But still the action of the Congress expresses and exhibits their real situation. It contains a contradiction between the true theory of their revolutionary powers and the powers which they could in fact practically exercise. Upon principle, it was just as competent to the Congress to take the steps required by the exigency, as it was to adjudge them to the States; and it was just as competent to the Congress to do any thing directly, as to confer a power to do it on their general. But the jealousies of the States, the habits of the country, and the practical working of the existing institutions, had never permitted the full exercise of the revolutionary powers which properly resided in the hands of the Congress. The true theory of their situation was limited by practical impossibilities; and an escape from contradictions became impossible. It was perceived that the States would neither pass laws or resolves for the summary raising of forces and levying of supplies, nor allow this to be done by committees or commissioners of Congress; but it was believed that they would acquiesce in its being done by General Washington, out of respect for his character, for his abilities and his motives, and from conviction that he alone could save the country. The expectations of the Congress were not disappointed. It was felt throughout the country, that such powers could be lodged in the hands of Washington without danger. The States in general acquiesced in the necessity and propriety of this measure, and there was little disposition to encroach upon or to complain of the authority conferred. To this acquiescence, however, there were exceptions.[124] * * * * * The period which now followed was a part of the interval during which the Articles of Confederation were pending in Congress. We have seen that the plan of a confederation was reported to that body in July, 1776, and finally adopted for recommendation to the States in November, 1777. But soon after the extraordinary powers had been conferred upon General Washington, the attendance of the members began to diminish, and several of the most eminent and able men, who had hitherto served, retired from Congress. In January, 1777, there were no delegations present from the States of Delaware and New York;[125] and in February, the absence of many distinguished men, whose counsels had been of vast importance, made a striking deficiency. The formation of the State governments, and the local affairs of the States, absorbed for a time, with a few important exceptions, the best civil talent in the country.[126] While the personal efficiency and wisdom of the Congress thus sensibly declined, no change took place in the nature of their powers, or in their relations to the States, that would impart greater vigor to their proceedings. The delegations of many of the States were renewed in the winter of 1776-7; but there was a great diversity, and in some cases a great vagueness, in their instructions.[127] In such a state of things,--with no uniform rule prescribing the powers of the Congress, and with some uncertainty in that body itself with regard to its authority to confer upon the Commander-in-chief the powers with which he was now invested,--however general might be the readiness of the country to acquiesce in their necessity, it is not surprising that State jealousy was sometimes aroused, or that it should have been unreasonable in some of its manifestations. A striking instance of this jealousy occurred upon the occasion of a proclamation issued by General Washington at Morristown, on the 25th of January, 1777. Sir William Howe had published a proclamation in New Jersey, offering protection to such of the inhabitants as would take an oath of allegiance to the King. Many of the substantial farmers of the country had availed themselves of this offer, and had received protections from the British general. The English and Hessian troops, however, made no distinction between friends and foes, but frequently committed great outrages both upon person and property. The resentment of the population would have restored them to the patriot side; but many who had taken the oath of allegiance felt, or affected, in consequence, scruples of conscience. General Washington therefore issued a counter-proclamation, commanding all persons who had received the enemy's protection to repair to head-quarters, or to some general officer of the army, and to surrender their protections and take an oath of allegiance to the United States;--allowing thirty days for those who preferred to remain under the protection of Great Britain to withdraw within the enemy's lines. This was considered in some quarters as an undue exercise of power. The idea of an oath of allegiance to the United States, before the Confederation was formed, was regarded by many as an absurdity. Allegiance, it was said, was due exclusively to the State of which a man was an inhabitant; the States alone were sovereign; and it was for each State, not for the United States, which possessed no sovereignty, to exact this obligation. The Legislature of New Jersey were disposed to treat General Washington's proclamation as an encroachment on their prerogatives: and one of the delegates of that State in Congress denounced it as improper.[128] This feeling was shared by other members; but it is not to be doubted, that the proceeding was a legitimate exercise of the authority vested in the Commander-in-chief. He had been expressly empowered to arrest and confine persons disaffected to the American cause; and the requiring them to attend at his head-quarters was clearly within the scope of this authority. Moreover, although no confederation or political union of the States had been formed under a written compact, yet the United States were waging war, as a government regularly constituted by its representatives in a congress, for the very purpose of carrying on such war. They had an army in the field, whose officers held continental commissions, and were paid by a continental currency. They were exercising certain of the attributes of sovereignty as a belligerent power; and in that capacity they had a complete right to exact such an obligation not to aid the enemy, as would separate their friends from their foes. It was a military measure; and the tenor of the proclamation shows that General Washington exacted the oath in that relation. To pause at such a moment, and to consider nicely how much sovereignty resided in each of the States, and how much or how little belonged to the United States, was certainly a great refinement. But it marks the temper of the times, and the extreme jealousy with which all continental power and authority were watched at that period.[129] We have seen that the powers conferred upon General Washington authorized him to raise, in the most speedy and effectual manner, sixteen battalions of infantry, in addition to those before voted by Congress, three regiments of artillery, and a corps of engineers; and also to apply to any of the States for the aid of their militia when wanted.[130] At the period when he addressed himself to this great undertaking of forming a new army, for the third time, the existing force which he had with him in and around New Jersey was about to be dissolved. The additional regiments of the regular line were to be raised by the States, and upon them alone could he depend for the supply of a new army, with which to commence the campaign in the spring of 1777. He had labored, he said, ever since he had been in the service, to discourage all kinds of local attachments and distinctions of country, denominating the whole by the greater name of AMERICAN; but he had found it impossible to overcome prejudices. Two causes especially embarrassed his efforts in the formation of the new army; and both of them show how powerful were the centrifugal forces of our system at that period, and how little hold that great central name had taken upon the people of the different States. One of these causes was the persistence of some of the States in giving extra bounties to encourage enlistments into their quotas of the original eighty-eight battalions not yet raised. The bounty allowed by Congress was twenty dollars to every soldier enlisting into the new establishment for three years or during the war. The additional bounty offered by Massachusetts was sixty-six dollars and two thirds. There was thus an inducement of eighty-six dollars and two thirds offered to the men then in the service of the United States, not to reënlist in their old regiments, as fast as their time of service expired, but to go to Massachusetts and enlist in the fresh quotas which were forming in that State, and which were to be afterwards mustered into the continental service. The same inconsiderate and unpatriotic policy was pursued in all the Eastern States, and before the spring opened, the consequences began to be felt in the state of the new continental battalions which General Washington was endeavoring to procure from some of the Middle States, and in which he would not sanction the allowance of an extra bounty, regarding it as an indirect breach of the union, and of the agreement entered into by the delegates of the States in Congress to give a bounty of twenty dollars only for service in the continental army.[131] The month of April arrived, and he had not received a man of the new levies, except a few hundreds from Jersey, Pennsylvania, and Virginia, while the few old regiments which remained, after the dissolution of the army in January, were reduced to a handful of men, the enemy being in great force, and making every preparation to seize upon Philadelphia. Nor did the allowance of these irregular bounties help the States, in raising the old levies, as had been anticipated. They rather caused the soldiers to set a high price upon themselves, and to hold back from enlisting; while the second cause, to which I have alluded, as embarrassing the Commander-in-chief, was a great hinderance to his efforts to plan and carry out a campaign, having for its object the general benefit of the whole Union. This cause was the inability of many local authorities to comprehend the necessity of such a campaign. General Washington was, at this period, harassed by numerous applications to allow the troops, which had been raised in the States for the service of the continent, to remain for the defence of particular neighborhoods against incursions of the enemy. Nothing, he said on one of these occasions, could exceed the pleasure which he should feel, if he were able to protect every town and every individual on the continent. But as this was a pleasure which he never should realize, and as the continental forces were wanted to meet and counteract the main designs of the enemy on the principal theatre of the war, he could not consent to divide them and detach them to every point where the enemy might possibly attempt an impression; "for that," he added, "would be in the end to destroy ourselves and subjugate our country."[132] From the operation of these and other causes connected with the political system of the country, the army with which Washington was obliged to take the field, in the spring of 1777, did not exceed five thousand seven hundred and thirty-eight effective men, exclusive of a small body of cavalry and artillery.[133] The consequence was, a necessary reliance upon militia, to a great extent, throughout that summer. The battle of the Brandywine, fought with an effective force of only eleven thousand men, including militia, against a thoroughly disciplined army of fifteen thousand British and Hessian troops, and fought for the city of Philadelphia as a stake, was lost on the 11th of September.[134] The Congress broke up on the 18th. Sir William Howe took possession of the city on the 26th; and on the 27th, the Congress reassembled at Lancaster. In a few days, they removed to Yorktown, where their sessions continued to be held for several months. The position in which they found themselves, amid the dark clouds which lowered around their cause, seems to have recalled to their recollection the Articles of Confederation, which had lain slumbering upon their table since the 8th of April. On that day, they had resolved that the report should be taken into consideration on the following Monday, and that two days in each week should be employed on the subject, until it had been wholly discussed. When the Monday came, it was postponed; and it was only after they had been driven from Philadelphia by the approach of the enemy, that they seem to have fully realized the fact, that, without a more perfect union and a more efficient government, the country could not be saved. As soon as they had reassembled at Yorktown, after the urgent business of the moment had been attended to, they passed a resolve, on the 2d of October, that the Articles of Confederation be taken into consideration the next day, at eleven o'clock. The discussion did not actually commence, however, until the 7th of October; but from that day it was continued until the 17th of November, when the Articles, as they afterwards went into operation, were adopted for recommendation to the States, and a circular letter was addressed to the several legislatures, submitting the plan of a confederacy, and urging its adoption. * * * * * We are now approaching the period when the American people began to perceive that something more was necessary to their safety and happiness than the formation of State governments;--when they found, or were about to find, that some digested system of national government was essential to the great objects for which they were contending; and that, for the formation of such a government, other arrangements than the varying instructions of different colonies or states to a body of delegates were indispensable. The previous illustrations, drawn from the civil and military history of the country, have been employed to show the character and operation of the revolutionary government, the end of which is drawing near. For we have seen that the great purpose of that government was to secure the independence of each of these separate communities or states from the crown of Great Britain; that it was instituted by political societies having no direct connection with each other except the bond of a common danger and a common object; and that it was formed by no other instrumentality, and possessed no other agency, than a single body of delegates assembled in a congress. For certain great purposes, and in order to accomplish certain objects of common interest, a union of the people of the different States had indeed taken place, bringing them together to act through their representatives; but this union was now failing, from the want of definite powers; from the unwillingness of the people of the country to acquiesce in the exercise of the general revolutionary powers with which it was impliedly clothed; and from the want of suitable civil machinery. In truth, the revolutionary government was breaking down, through its inherent defects, and the peculiar infelicity of its situation. Above all, it was breaking down from the want of a civil executive to take the lead in assuming and exercising the powers implied from the great objects for which it was contending. Its legislative authority, although defined in no written instruments or public charters, was sufficient, under its implied general powers, to have enabled it to issue decrees, directing the execution, by its own agents, of all measures essential to the national safety. But this authority was never exercised, partly because the States were unwilling to execute it, but chiefly because no executive agency existed to represent the continental power, and to enforce its decrees. * * * * * It is a singular circumstance, that, while the revolutionary government was left to conduct the great affairs of the continent through the mere instrumentality of a congress of delegates, and was thus failing for the want of departments and powers, the States were engaged in applying those great principles in the organization and construction of popular governments, under which they may be formed with rapidity and ease, and which are capable of the most varied adaptation to the circumstances and wants of a free people. The suppression of the royal authority throughout the colonies, by virtue of the resolve of the Continental Congress passed on the 10th of May, 1776, rendered necessary the formation of local governments, capable at once of answering the ends of political society, and of continuing without interruption the protection of law over property, life, and public order. Fortunately, as we have seen, the previous constitutions of all the colonies had accustomed the people, to a great extent, to the business of government; and, when the recommendation of the Continental Congress to the several colonies to adopt such governments as would best conduce to their happiness and safety was made immediately after the first effusion of blood, it was addressed to civil societies, in which the people had, in different modes, been long accustomed to witness and to exercise the functions of legislation, and in all of which there were established forms of law, of judicature, and of executive power. The new political situation in which they now found themselves required, in many of the colonies, but little departure from these ancient institutions. The chief innovation necessary was, to bring into practical working the authority of the people, in place of that of the crown of England, as the source of all political power. The changes requisite to effect this were of course to be made at once; the materials for these changes existed everywhere, in the representative institutions which had been long a part of the system of every colony since the first settlement of the country. Thus, as we have seen, in all the provincial, the proprietary, and the charter governments, the freemen of the colony had been accustomed to be represented in the government, in some form; and although those governments, with a few exceptions, were under the direct or indirect restraint of the crown, and could all be reached and controlled by the exercise of arbitrary power, the practice of representation, through popular elections, was everywhere known and familiar. The old constitutions of some of the colonies had also been highly democratic, admitting an election of the executive, as well as of the legislature, directly by the people;[135] while, in others, where the executive was appointed by the crown, the second or less numerous branch of the legislature had been elected by the people, either directly, or indirectly through the popular assembly. The foundations, therefore, for popular governments existed in all the colonies, and furnished the means for substituting the new source of political power, the will of the people, in the place of that of an external sovereign. But there were other materials, also, for the formation of regular and balanced governments, with nearer approaches to perfection and with far greater completeness than a mere democracy can afford to any people, however familiar they may be with the exercise and the practice of government. The people of these colonies had been so trained as to be able to apply those principles in the construction and operation of government which enable it to work freely, successfully, and wisely, while resting on a popular basis. They were able to see, that the whole of what is meant and understood by government is comprehended in the existence and due operation of legislative, executive, and judicial powers.[136] They had lived under political arrangements, in which these powers had been distributed so as to keep them for the most part distinct from each other, and so as to mark the proper limitations of each. If, in some instances, the same individuals had exercised more than one of these powers, the distinctions between the departments, and the principles which ought to regulate such distinctions, had become known. The people of the colonies, in general, therefore, saw that nothing was so important, in constructing a government with popular institutions, as to balance each of these departments against the others, so as to leave to neither of them uncontrolled and irresponsible power. In general, too, they understood, and had always been accustomed to the application of that other fundamental principle, essential to a well-regulated liberty, the division of the legislative power between two separate chambers, having distinct origins and of distinct constructions.[137] But none of these ideas were applied, or were yet thought of being applied, to the construction of a government for the United States; and it is therefore at this period that we are to observe the slow progress making, through disaster and trial, to those great discoveries which led the way to the Constitution, and that we are to mark the first of those failures by which the people of America learnt the bitter wisdom of experience. For the fate of the revolutionary government presents the first illustration in our history of the complete futility of a federative union, whose operation as a government should consist merely in agreeing upon measures in a general council, leaving the execution of those measures to the separate members of the confederacy. But this first illustration, we shall soon see, was not sufficient to establish this truth in the convictions of the American people. Another and a severer trial awaited them. They were not only to be taught once more that a mere federative union was a rope of sand, but they were also to be taught, that a government instituted upon this principle for the purposes of a war, in which the separate members of the confederacy had a common interest, would not answer the exigencies of a country like this, in time of peace. They were to learn, by a trying experience, that the vast concerns of peace are far more complex than the concerns of war; that there were important functions of government to be discharged upon this continent, which only national power and national authority can accomplish, and that those functions are essential, not only to the prosperity and happiness of this nation, but to the continued existence of republican liberty within the States themselves. They were to learn this through a state of things verging upon anarchy; amidst the decay of public virtue; the conflict of sectional interests; and the almost total dissolution of the bands by which society is held together. In this state of things was to be at last developed the fundamental idea on which the Constitution of the United States now rests,--the political union of the _people_ of the United States, as distinguished from a union of the _States_ of which they are citizens. We have, therefore, now reached the first stage in the constitutional history of the country. What has thus far been stated comes to a single point, the earliest great illustration of the radical defects in a purely federative union. The next stage which succeeds presents the second illustration of this important truth. FOOTNOTES: [103] Washington's Writings, III. 403. [104] Writings of Washington, IV. 72. [105] Writings of Washington, IV. 100. [106] Letter to the President of Congress, Washington's Writings, IV. 110. September 24, 1776. [107] Journals, II. 357. [108] 500 acres to a colonel; 450 to a lieutenant-colonel; 400 to a major; 300 to a captain; 200 to a lieutenant; and 150 to an ensign. [109] Journals, II. 357. Subsequently, by a resolve passed November 12 (1776), the option was given to enlist for the war or for three years, taking away the land bounty from those who enlisted for the latter period only. Ibid. 454. [110] Ibid. [111] Journals, II. 403. October 8, 1776. [112] Writings of Washington, IV. 173. [113] Ibid. 183, 184. [114] Writings of Washington, IV. 184. [115] Writings, IV. 190. [116] Ibid. 197. [117] Ibid. 202. [118] Ibid. 206. [119] Ibid. 211. [120] Ibid. 225. [121] Writings, IV. 232. [122] Journals, II. 475. A committee, at the head of which was Robert Morris, was appointed to transmit this resolve to General Washington, and in their letter they said: "We find by these resolves that your Excellency's hands will be strengthened by very ample powers; and a new reformation of the army seems to have its origin therein. Happy it is for this country, that the general of their forces can safely be intrusted with the most unlimited power, and neither personal security, liberty, nor property be in the least degree endangered thereby." In his reply, the General said to the committee: "Yours of the 31st of last month inclosed to me sundry resolves of Congress, by which I find they have done me the honor to intrust me with powers, in my military capacity, of the highest nature, and almost unlimited in extent. Instead of thinking myself freed from all _civil_ obligations, by this mark of their confidence, I shall constantly bear in mind, that, as the sword was the last resort for the preservation of our liberties, so it ought to be the first thing laid aside when those liberties are firmly established. I shall instantly set about the most necessary reforms in the army; but it will not be in my power to make so great a progress as if I had a little leisure time upon my hands." Writings of Washington, IV. 257, 552. [123] Writings of Washington, IV. 551. [124] Writings of Washington, IV. 551. [125] Journals, III. 35. [126] "We have now to lament," said Robert Morris, in a private Letter to General Washington, under date of February 27th, 1777 "the absence from the public councils of America of Johnson, Jay, R. R. Livingston, Duane, Deane, W. Livingston, Franklin, Dickinson, Harrison, Nelson, Hooper, Rutledge, and others not less conspicuous, without any proper appointments to fill their places, and this at the very time they are most wanted, or would be so, if they had not very wisely supplied the deficiency by delegating to your Excellency certain powers, that they durst not have intrusted to any other man. But what is to become of America, and its cause, if a constant fluctuation is to take place among its counsellors, and at every change we find reason to view it with regret?" Writings of Washington, IV. 340, note. [127] Massachusetts, in December, 1776, renewed the credentials of John Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry, Francis Dana, and James Lovell, giving power to any three or more of them, with the delegates from the other American States, to concert, direct, and order such further measures as shall to them appear best calculated for the establishment of right and liberty to the American States, upon a basis permanent and secure against the power and art of the British administration; for prosecuting the present war, concluding peace, contracting alliances, establishing commerce, and guarding against any future encroachments and machinations of their enemies; with power to adjourn, &c. (Journals, IV. 14.) New Hampshire in the same month sent William Whipple, Josiah Bartlett, and Mathew Thornton, making any one of them a full delegation, without any other instructions than "to represent" the State in the Continental Congress for one year, and allowing only two of them to attend at a time. (Ibid. 41.) Virginia in the same month appointed Mann Page, in the room of George Wythe, with the same general instructions "to represent" the State. (Ibid. 42.) North Carolina in the same month appointed William Hooper, Joseph Hewes, and Thomas Burke, and invested them "with such powers as may make any act done by them, or any of them, or consent given in the said Congress in behalf of this State, obligatory upon every inhabitant thereof." (Ibid. 37.) South Carolina chose Arthur Middleton, Thomas Hayward, Jr., and Henry Laurens, with power "to concert, agree to, and _execute_ every measure which one or all of them should judge necessary for the defence, security, or interest of this State in particular, and of America in general." (Ibid. 53.) Connecticut sent Roger Sherman, Samuel Huntington, Eliphalet Dyer, Oliver Wolcott, Richard Law, and William Williams, "to consult, advise, and resolve upon measures necessary to be taken and pursued for the defence, security, and preservation of the rights and liberties of the said United States, and for their common safety"; but requiring them "of such their proceedings and resolves to transmit authentic copies from time to time to the General Assembly of this state." (Ibid. 5.) Of the other states, Pennsylvania, Rhode Island, New York, New Jersey, Maryland, and Georgia, which renewed their delegations somewhat later in the year, instructed them simply "to represent" the state in the Continental Congress; and Delaware empowered its delegates, on behalf of the state, "to concert, agree to, and execute any measure which they, together with a majority of the Continental Congress, should judge necessary for the defense, security, interest, and welfare of that State in particular, and America in general." (Ibid. 64, 315, 171, 169, 395, 54, 403, 86.) [128] This was Mr. Abraham Clark, one of the signers of the Declaration of Independence. Mr. Sparks has preserved a curious letter written by this gentleman on the subject. Writings of Washington, IV. 298. [129] The whole of this alarm evidently arose from the use of the words "oath of allegiance" in General Washington's proclamation. Probably this phrase was used by him as a convenient description of the obligation which he intended to exact. He did not use it as a jurist, but as a general and a statesman. In a letter written by him on the 5th of February (1777) to the President of Congress, desiring that body to urge the States to adopt an oath of fidelity, he said: "From the first institution of civil government, it has been the national policy of every precedent state to endeavor to engage its members to the discharge of their public duty by the obligation of some oath"; and he then observes, with his characteristic wisdom, that "an oath is the only substitute that can be adopted to supply the _defect of principle_." He advised that every State should fix upon some oath or affirmation of allegiance, to be tendered to all the inhabitants without exception, and to outlaw those that refused it. (Writings, IV. 311, 312.) Afterwards, when the Legislative Council of New Jersey--where some of the people had refused to take the oath required by his proclamation--applied to him to explain the nature of the oath, and to be furnished with a copy of it, that they might know whether it was the oath prescribed by the General Assembly of that State, he informed them that he had prescribed no form, and had reverted to none prescribed by them; that his instructions to the brigadiers who attended to that duty were, to insist on nothing more than an obligation in _no manner to injure the States_; and that he had left the form to his subordinates; but that if he had known of any form adapted to the circumstances of the inhabitants, he would certainly have ordered it. (Ibid. 319, note.) This explanation makes it quite certain, that what General Washington called in his proclamation an oath of allegiance was merely a military exaction of an obligation in favor of a belligerent power against the enemy; and his advice on the subject of a general civil oath of allegiance, to be exacted by the States, shows that he understood the niceties of the subject as well as any casuist in or out of Congress. This topic may be dismissed by reverting here to the fact, that in February, 1778, Congress prescribed an oath or affirmation, to be taken by the officers of the army, and all others holding office under Congress, which was simply a renunciation of allegiance to the King of Great Britain, an acknowledgment of the independence of the United States, and a promise to support, maintain, and defend them against King George III. and his successors, and to serve the United States in the office mentioned with fidelity, and the best skill and understanding of the party taking the oath. Journals, IV. 49. [130] Ante, p. 100. [131] Letter to General Knox, February 11, 1777. Writings, IV. 316. [132] Letter to Governor Trumbull, May 11, 1777. Writings, IV. 413. See also Letter to Major-General Stephen, May 24, 1777. Ibid. 431. [133] Marshall's Life of Washington, III. 102. [134] The exact numbers of the troops on both sides, in this battle, are not known. Sir William Howe estimated the American force at 15,000, including militia; and this number is given in the Annual Register. But the effective force of the American army was always, at this period of the war, considerably less than the total number; and Chief Justice Marshall states it to have been, on this occasion, 11,000, including militia. The Annual Register gives the number of the royal army brought into action as 15,000. Marshall supposes it to have been 18,000, when they landed on the shores of the Chesapeake. Marshall's Life of Washington, III. 140, 141. Annual Register for 1777, XX. 127. [135] Connecticut and Rhode Island. [136] See John Adams's letter to R. H. Lee. [137] Three of the colonies, namely, New Hampshire, South Carolina, and Virginia, proceeded to form constitutions of government before the Declaration of Independence was adopted, under a special recommendation given to each of them by Congress, in the latter part of the year 1775, addressed to the provincial convention, advising them "to call a full and free representation of the people, to establish such a form of government as in their judgment will best promote the happiness of the people, and most effectually secure good order in the province during the continuance of the present dispute between Great Britain and the colonies." (Journals, I. 231, 235, 279.) In New Hampshire, this suggestion was carried out in January, 1776, by the representatives of the people, who had first met as a Provincial Congress of deputies from the towns, and then assumed the name and authority of a "house of representatives," or "assembly" of the Colony; in which capacity they proceeded to elect twelve persons from the several counties, to form a distinct branch of the legislature, as a council. The council were to elect their own presiding officer. All acts and resolves, to be valid, were required to pass both branches; all public officers, except clerks of courts, were to be appointed by the two houses, and all money bills were to originate in the popular branch. In case the dispute with Great Britain should continue longer than the year 1776, and the general Congress should not give other instructions, it was provided that the council should be chosen by the people of each county, in a mode to be prescribed by the council and house. This form of government continued through the Revolution, and until the year 1790, when a new constitution was formed. (Pitkin's History of the United States, II. 294.) In South Carolina, the Provincial Congress likewise resolved itself a "general assembly," and elected a legislative council, from their own body. By these two bodies, acting jointly, an executive, styled a president, a commander-in-chief, and a vice-president, was chosen. The legislative authority was vested in the president and the two houses. The judiciary were elected by the two houses and commissioned by the president, and were to hold their offices during good behavior, subject to removal on the address of both houses. This form of government remained until June, 1790, when a new constitution was formed by a convention. On the 15th of May, 1776, the Provincial Convention of Virginia proceeded to prepare a declaration of rights and a constitution. The latter declared that the legislative, executive, and judiciary departments ought to be distinct and separate, and divided the legislative department into two branches, the house of delegates and the senate, to be called "the General Assembly of Virginia." The members of the house of delegates were chosen from each county, and one from the city of Williamsburg and one from the borough of Norfolk. The senate consisted of twenty-four members, chosen from as many districts. A governor and council of state were chosen annually by joint ballot of both houses. The legislature appointed the judges, who were commissioned by the governor, and held their offices during good behavior. Massachusetts was one of the colonies whose situation rendered it necessary to defer the formation of a constitution for several years. The transition in that colony from the government of the King to a government of the people took place in the latter part of the year 1774 and the beginning of 1775. The occurrences which led the House of Representatives to resolve themselves into a Provincial Congress have been stated in the text of a previous chapter (ante, p. 26). This body, which assumed the control of the affairs of the colony in October, 1774, first assembled at Cambridge, where they continued in session until the 10th of December, and then dissolved themselves, having first appointed a _Committee of Safety_ to manage the public concerns, until a new Congress should be assembled. On the 1st of February, 1775, a new Provincial Congress met at Cambridge, adjourned to Concord, and thence to Watertown, and were dissolved on the 23d of May. On the 16th of May, they wrote to the Continental Congress, requesting their advice on "taking up and exercising the powers of civil government." In their letter they said, "As the sword should in all free states be subservient to the civil powers, and as it is the duty of the magistrate to support it for the people's necessary defence, we tremble at having an army, although consisting of our own countrymen, established here, without a civil power to provide for and control them." On the 9th of June, the Continental Congress passed a resolve, recommending the election of a new General Assembly, under the directions of the Provincial Congress, and that the Assembly, when chosen, should exercise the powers of government, until a governor of the King's appointment would consent to govern the Colony according to its charter. (Journals, I. 115.) Meanwhile, a third Provincial Congress met at Watertown, on the 31st of May, and sat until the 19th. The new General Assembly of the Province, called "the General Court," after its ancient usage, met in the mode provided by the charter, and elected a council. These two branches continued to administer the government, as nearly in the spirit of the charter as might be, without a governor, until 1780, when a convention was called and a constitution framed, similar in all its main features to the present constitution of the State. The constitutions of the other States were formed under the general recommendation of the resolve of Congress of May 10th, 1776, addressed to all the colonies, which contemplated the formation of permanent governments, and dissolved the allegiance of the people to the crown of Great Britain. The constitutions of New Jersey, Maryland, Delaware, and North Carolina were formed in 1776, and that of New York in April, 1777; all having three branches, the legislative, the executive, and the judiciary, and all having a legislature consisting of two houses. The constitution of Georgia was formed in 1789, after the same general model. That of Pennsylvania was formed in 1776, with a legislature consisting of a single branch, but with the like division of the legislative, executive, and judicial departments. CHAPTER V. NOVEMBER, 1777--MARCH, 1781. ADOPTION OF THE ARTICLES OF CONFEDERATION.--CESSIONS OF WESTERN TERRITORY.--FIRST POLITICAL UNION OF THE STATES. We have now to examine the period which intervened between the recommendation of the Confederation by Congress, in November, 1777, and its final adoption by all the States, in March, 1781;--a period of three years and a half. The causes which protracted the final assent of the States to the new government, and the mode in which the various objections were at length obviated, are among the most important topics in our constitutional history. But, before they are examined, the order of events by which the Confederation finally became obligatory upon all the States should here be stated. The last clause of the Articles of Confederation directed that they should be submitted to the legislatures of all the States to be considered; and if approved of by them, they were advised to authorize their delegates to ratify the instrument in Congress; upon which ratification, it was to become binding and conclusive. On the 20th of June, 1778, a call was made in Congress for the report of the delegations on the action of their several States, and on the 26th of the same month a form of ratification was adopted for signature. On the 9th of July, the ratification was signed by the delegates of eight States; New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Virginia, and South Carolina. North Carolina ratified the Articles on the 21st of July; Georgia on the 24th; New Jersey on the 26th of November; Delaware on the 5th of May, 1779; Maryland on the 1st of March, 1781. On the 2d of March, 1781, Congress met under the Confederation. * * * * * Undoubtedly one of the causes which deferred the full adoption of the Confederation to so late a period after it was proposed, was the absence from Congress of many of the most important and able men, whose attention had hitherto been devoted to the affairs of the continent, but who began to be occupied with local affairs, soon after the extraordinary powers were conferred upon General Washington. In October, 1777, Hancock left the chair of Congress, for an absence of two months; and the votes on a resolution of thanks to him, for his services as presiding officer, show a great paucity of talent in Congress at that moment.[138] Twenty-two members only were present, and of these the only names much known to fame, at that time or since, were those of Samuel Adams, John Adams, and Elbridge Gerry of Massachusetts, the two Lees of Virginia, Hayward and Laurens of South Carolina, and Samuel Chase of Maryland. Franklin, Arthur Lee, and Silas Deane were then in France. Patrick Henry was Governor of Virginia. Mr. Jefferson was in the legislature of Virginia, having left Congress in September, in order, as he has himself recorded, to reform the legislation of the State, which, under the royal government, was, he says, full of vicious defects.[139] Mr. Madison was also in the legislature of his native State, a young man of great promise, but unknown at that time as a continental statesman. He entered Congress in March, 1780. In the year 1778, when the delegations were called upon for reports on the action of their several States upon the Confederation, and when the first objections to the Articles were to be encountered, Hancock had returned to Congress. Samuel Adams and Elbridge Gerry were among his colleagues from Massachusetts. Mr. John Adams was in Europe, as Commissioner of the United States to the Court of France. Dr. Franklin was still abroad. Richard Henry Lee of Virginia, Mr. Laurens and Mr. Hayward of South Carolina, Roger Sherman, Samuel Huntington, and Oliver Wolcott of Connecticut, and Robert Morris of Pennsylvania, were present. The rest of the members, with one brilliant exception, were not men of great distinction, influence, or capacity. That exception was Gouverneur Morris, who came into Congress in January of this year, with a somewhat remarkable youthful reputation, acquired in the public councils of New York. When this Congress is compared with that of the year 1776, and it is remembered that the Declaration of Independence bears the names of John Adams and Robert Treat Paine of Massachusetts, Francis Hopkinson of New Jersey, Benjamin Rush and Dr. Franklin of Pennsylvania, Cæsar Rodney of Delaware, Samuel Chase of Maryland, George Wythe, Thomas Jefferson, and Benjamin Harrison of Virginia, William Hooper of North Carolina, and Edward Rutledge and Arthur Middleton of South Carolina,--none of whom were now present,--we perceive at once a striking difference in the two bodies. This difference was not unobserved by those who were then deeply interested in watching the course of public affairs. More than once it filled Washington with dark forebodings;[140] and in the early part of the year 1778, it had attracted the notice of Hamilton, whose vigilant comprehension surveyed the whole field of public affairs, and detected the causes of every danger that threatened the health of the body politic.[141] The objections made by the legislatures of several of the States to the Articles of Confederation were found, when examined, to consist almost entirely of propositions for mere verbal amendments, chiefly for the purpose of rendering the instrument more clear. All of these amendments were rejected. Some of the States objected to the rule for apportioning the taxes and forces to be raised by the States for the service of the Union; but Congress rejected every proposition to alter it, as it was believed to be impossible that any other rule should be agreed upon. But there was an objection made by the State of New Jersey, which should be particularly noticed here, because it foreshadowed the great idea which the Constitution of the United States afterwards embodied. This objection was, that the Articles of Confederation contained no provision by which the foreign trade of the country would be placed under the regulation of Congress. The sixth of the Articles of Confederation declared, that no State should levy any imposts or duties, which might interfere with any stipulations entered into by the United States with any foreign power pursuant to the treaties already proposed to the courts of France and Spain; while the ninth article declared that no treaty of commerce should be made by the United States, whereby the legislative power of the respective States should be restrained from imposing such imposts and duties on foreigners as their own people were subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever. The effect of these provisions was simply to restrain the States from laying imposts which would interfere with the then proposed treaties; in all other respects, the foreign trade of each State was left to be regulated by State legislation. The legislature of New Jersey, in a very able memorial, laid before Congress on the 25th of June, 1778, declared that the sole and exclusive power of regulating the trade of the United States with foreign nations ought to be clearly vested in the Congress, and that the revenue arising from duties and customs ought to be appropriated to the building and support of a navy for the protection of trade and the defence of the coasts, and to other public and general purposes, for the common benefit of the States. They suggested that a great security would be derived to the Union, from such an establishment of a common and mutual interest.[142] But this suggestion was both premature and tardy. It was premature, because the States had not yet learned that their control over foreign commerce must be surrendered, if they would avoid the evils of perpetual conflict with each other; and it came too late, because the Articles of Confederation were practically incapable of amendment, at the period when the suggestion was made.[143] * * * * * The great obstacle, however, to the adoption of the Confederation, which delayed the assent of several of the smaller States for so long a period, was the claim of some of the larger States to the vacant lands lying within what they considered their rightful boundaries. The boundaries of the great States, as fixed by their charters derived from the crown of England, extended, in terms, "to the South Sea," and each of these States, as successor, by the Revolution, to the crown, with regard to territorial sovereignty, claimed to own both the jurisdiction and the property of all the crown lands within its limits. This claim was strenuously resisted by Rhode Island, Delaware, New Jersey, and Maryland. They insisted that Congress ought to have the right to fix the boundaries of the States whose charters stretched to such an indefinite extent into the Western wilderness, and that the unoccupied lands ought to be the property of the whole Union; since, if the independence of the country should be finally established, those lands would have been conquered from the crown of England by the common blood and treasure of all the States. The effect of a tacit recognition of the claims of the great States upon the welfare of such a State as Maryland, through the absence from the Articles of Confederation of any provision on the subject, was strikingly exhibited, by its legislature, in certain instructions to their delegates in Congress, which were laid before that body on the 21st of May, 1779. They pointed out two consequences likely to result from a confirmation of the claim which Virginia had set up to an extensive and fertile country; the one would be, they said, directly injurious to Maryland, while the other would be inconsistent with the letter and spirit of the proposed Confederation. They supposed, on the one hand, that a sale by Virginia of only a small proportion of these lands would draw into her treasury vast sums of money, enabling her to lessen her taxes, and thereby to drain the less wealthy neighboring State of its most useful inhabitants, which would cause it to sink, in wealth and consequence, in the scale of the confederated States. On the other hand, they suggested that Virginia might, and probably would, be obliged to divide its territory, and to erect a new State, under the auspices and direction of the elder, from whom it would receive its form of government, to whom it would be bound by some alliance, and by whose counsels it would be influenced. They declared that, if this were to take place, it would be inconsistent with the letter and spirit of the Confederation already proposed; that, if it were to result in the establishment of a sub-confederacy, an _imperium in imperio_, the State possessed of this extensive dominion must then either submit to all the inconveniences of an overgrown and unwieldy government, or suffer the authority of Congress to interpose at a future time, and lop off a part of its territory to be erected into a new and free state, and admitted into a confederation on such conditions as should be settled by nine States. If, they asked, it should be necessary for the happiness and tranquillity of a State thus overgrown, that Congress should, at some future time, interfere and divide its territory, why should the claim to that territory be now made and insisted upon? Policy and justice, they urged, alike required, that a country,--unsettled at the commencement of the war, claimed by the British crown and ceded to it by the treaty of Paris,--if wrested from the common enemy by the blood and treasure of the thirteen States, should be considered as a common property, subject to be parcelled out by Congress into free, convenient, and independent governments, in such manner and at such times as their wisdom might thereafter direct. Coolly and dispassionately considering the subject, weighing probable inconveniences and hardships against the sacrifice of just and essential rights, they then instructed their delegates to withhold the assent of Maryland to the Confederation, until an article or articles could be obtained in conformity with these views.[144] Against this proposition, the State of Virginia, which had already ratified the Articles of Confederation, so remonstrated, that there appeared to be no prospect of reconciling the difficulty. At this juncture the State of New York came forward, and by an act of its legislature, passed on the 19th of February, 1780, authorized its delegates in Congress to limit the western boundaries of the State, and ceded a portion of its public lands for the use and benefit of such of the United States as should become members of the federal alliance. The motives upon which this concession was expressly made had reference to the formation of the Union, by removing, as far as depended upon the State of New York, the impediment which had so long prevented it.[145] After they had received official notice of this act, by a report made on the 6th of September, 1780, Congress pressed upon the other States, similarly situated, the policy of a liberal surrender of a portion of their territorial claims, as they could not be preserved entire without endangering the stability of the general confederacy;--reminding them how indispensably necessary it was to establish the Federal Union on a fixed and permanent basis, and on principles acceptable to all its respective members,--how essential it was to public credit and confidence, to the support of the army, to the vigor of the national councils, to tranquillity at home, to reputation abroad, and to the very existence of the people of America as a free, sovereign, and independent people. At the same time, they earnestly requested the legislature of the State of Maryland to accede to the Confederation.[146] That State was not without examples of patriotic confidence among her smaller sister States. As early as the 20th of November, 1778, New Jersey had led the way to a generous trust on the part of the States which still remained out of the Union. She declared that the Articles of Confederation were in divers respects unequal and disadvantageous to her, and that her objections were of essential moment to the welfare and happiness of her people; yet, convinced of the present necessity of acceding to the confederacy proposed, feeling that every separate and detached interest ought to be postponed to the general good of the Union, and firmly believing that the candor and justice of the several States would, in due time, remove the inequality of which she complained, she authorized her delegates to accede to the Confederation.[147] Delaware followed with not unequal steps. On the 1st of February, 1779, she declared that, although she was justly entitled to a right, in common with the other members of the Union, to that extensive tract of country lying to the westward of the frontiers of the United States, gained by the blood and treasure of all, and therefore proper to become a common estate, to be granted out on terms beneficial to all; yet, for the same reasons, and from the same motives with those announced by New Jersey, and with a like faith in the sense of justice of her great confederates, she ratified the Articles of Confederation.[148] These examples were not without influence upon the councils of patriotic Maryland. On the 30th of January, 1781, her legislature passed an act, the preamble of which commences with these memorable words: "Whereas it hath been said, that the common enemy is encouraged, by this State not acceding to the Confederation, to hope that the union of the sister States may be dissolved; and they therefore prosecute the war in expectation of an event so disgraceful to America; and our friends and illustrious ally are impressed with an idea, that the common cause would be promoted by our formally acceding to the Confederation: This General Assembly, conscious that this State hath, from the commencement of the war, strenuously exerted herself in the common cause, and fully satisfied that, if no formal confederation were to take place, it is the fixed determination of this State to continue her exertions to the utmost, agreeable to the faith pledged in the Union;--from an earnest desire to conciliate the affection of the sister States, to convince all the world of our unalterable resolution to support the independence of the United States, and the alliance with his most Christian Majesty, and to destroy for ever any apprehension of our friends, or hope in our enemies, of this State being again united to Great Britain;--Be it enacted," &c. The act then proceeded to adopt and ratify the Articles of Confederation, relying on the justice of the other States to secure the interests of the whole in the unoccupied Western territory.[149] As soon as this act of Maryland was laid before Congress, the joyful news was announced to the country, that the Union of the States was consummated under the written instrument, which had been so long projected. The same month which saw the completion of this Union witnessed a cession by Virginia to the United States of all her claims to lands northwest of the river Ohio; but the cession was not finally completed and accepted until the month of March, 1784. This vast territory, now the seat of prosperous and powerful States, came into the possession of the United States, under a provision made by Congress, that such lands should be disposed of for the common benefit of the United States, and should be settled and formed into distinct republican States, to become members of the Federal Union, with the same rights of sovereignty, freedom, and independence as the other States. The historian who may, in any generation, record these noble acts of patriotism and concession, should pause and contemplate the magnitude of the event with which they were connected. He should pause, to render honor to the illustrious deeds of that great community, which first generously withdrew the impediment of its territorial claims; and to the no less gallant confidence of those smaller States, which trusted to the future for the final and complete removal of the inequality of which they complained. He should render honor to the State of New York, for the surrender of a territory to which she believed her legal title to be complete; a title which nothing but the paramount equity of the claims of the whole Confederacy ought to have overcome. That equity she acknowledged. She threw aside her charters and her title-deeds; she ceased to use the language of royal grants, and discarded the principle of succession. She came forth from among her parchments into the forum of conscience, in presence of the whole American people; and--recognizing the justice of their claim to territories gained by their common efforts--to secure the inestimable blessings of union, for their good and for her own, she submitted to the national will the determination of her western boundaries, and devoted to the national benefit her vast claims to unoccupied territories. Equal honor should be rendered to New Jersey, to Delaware, and to Maryland. The two former, without waiting for the action of a single State within whose reputed limits these public domains were situate, trusted wholly to a future sense of justice, and ratified the Union in the confidence that justice would be done. The latter waited; but only until she saw that the common enemy was encouraged, and that friends were disheartened, by her reserve. Seeing this, she hesitated no longer, but completed the union of the States before Virginia had made the cession, which afterwards so nobly justified the confidence that had been placed in her.[150] The student of American constitutional history, therefore, cannot fail to see, that the adoption of the first written constitution was accomplished through great and magnanimous sacrifices. The very foundations of the structure of government since raised rest upon splendid concessions for the common weal, made, it is true, under the stern pressure of war, but made from the noblest motives of patriotism. These concessions evince the progress which the people of the United States were then making towards both a national character and a national feeling. They show that, while there were causes which tended to keep the States apart,--the formation of State constitutions, the conflicting interests growing out of the inequalities of these different communities, and the previous want of a national legislative power,--there were still other causes at work, which tended to draw together the apparently discordant elements, and to create a union in which should be bound together, as one nation, the populations which had hitherto known only institutions of a local character. The time was indeed not come, when these latter tendencies could entirely overcome the former. It was not until the trials of peace had tested the strength and efficiency of a system formed under the trials of war,--when another and a severer conflict between national and local interests was to shake the republic to its centre,--that a national government could be formed, adequate to all the exigencies of both. Still, the year 1781 saw the establishment of the Confederation, caused by the necessities of military defence against an invading enemy. But it was accomplished only through the sacrifice of great claims; and the fact that it was accomplished, and that it led the way to our present Constitution, proves at once the wisdom and the patriotism of those who labored for it. The great office of the Confederation, in our political history, will be a proper topic for consideration, after the analysis of its provisions. But we should not omit to observe here, that, when the union of the States was thus secured, the motives on which it was formed, and the concessions by which it was accompanied and followed, created a vast obstacle to any future dissolution. The immediate object of each State was to obtain its own independence of the crown of Great Britain, through the united, and therefore more powerful, action of all the States. But, in order to effect such a union, that immense territory, over which, in the language of Maryland, "free, convenient, and independent governments" were afterwards to be formed, was to be ceded in advance, or to be impliedly promised to be ceded, to the use and benefit of the whole confederacy. A confederacy of states, which had become possessed of such a common property, was thus bound together by an interest, the magnitude and force of which cannot now be easily estimated. The Union might incur fresh dangers of dissolution, after the war had ceased; its frame of government and its legislative power might prove wholly inadequate to the national wants in time of peace; the public faith might be prostrated, and the national arm enfeebled;--still, while the Confederacy stood as the great trustee of property large enough for the accommodation of an empire, a security existed against its total destruction. No State could withdraw from the Confederation, without forfeiting its interest in this grand public domain; and no human wisdom could devise a satisfactory distribution of property ceded as a common fund for the common benefit of sovereign States, without any fixed ratio of interest in the respective beneficiaries, and without any clear power in the government of the Confederation to deal with the trust itself.[151] FOOTNOTES: [138] Hancock retired on the 31st of October, for a short absence, after an unremitted service of two years and five months in the chair. A vote of thanks was moved, as soon as he had concluded his address; but before the question was put, it was moved "to resolve as the opinion of Congress, that it is improper to thank any president for the discharge of the duties of that office"; and it is a curious fact, that on this motion the States were equally divided. The previous motion was then put, and five States voted in the affirmative, three in the negative, and the delegation of one State was divided. Journals, III. 465-467. [139] Writings of Jefferson, I. 29. [140] Writings of Washington, V. 326, 327, 350. [141] "America once had a representation that would do honor to any age or nation. The present falling off is very alarming and dangerous. What is the cause? and How is it to be remedied? are questions that the welfare of these States requires should be well attended to. The great men who composed our first council,--are they dead, have they deserted the cause, or what has become of them? Very few are dead, and still fewer have deserted the cause: they are all, except the few who still remain in Congress, either in the field, or in the civil offices of their respective States; far the greater part are engaged in the latter. The only remedy, then, is to take them out of these employments, and return them to the place where their presence is infinitely more important. Each State, in order to promote its own internal government and prosperity, has selected its best members to fill the offices within itself, and conduct its own affairs. Men have been fonder of the emoluments and conveniences of being employed at home; and local attachment, falsely operating, has made them more provident for the particular interests of the States to which they belonged, than for the common interests of the Confederacy. This is a most pernicious mistake, and must be corrected. However important it is to give form and efficiency to your interior constitutions and police, it is infinitely more important to have a wise general council; otherwise, a failure of the measures of the Union will overturn all your labors for the advancement of your particular good, and ruin the common cause. You should not beggar the councils of the United States to enrich the administration of the several members. Realize to yourself the consequences of having a Congress despised at home and abroad. How can the common force be exerted, if the power of collecting it be put in weak, foolish, and unsteady hands? How can we hope for success in our European negotiations, if the nations of Europe have no confidence in the wisdom and vigor of the great continental government? This is the object on which their eyes are fixed; hence it is, America will derive its importance or insignificance in their estimation." Letter by Hamilton to George Clinton, written from the head-quarters of the army, February 13, 1778. Writings of Washington, V. 508. [142] Journals, IV. 269, 270. This wise and well-considered document contained many other very important suggestions; among which was that of an oath, test, or declaration to be taken by the delegates in Congress, previous to their admission to their seats. "It is indeed to be presumed," said the memorial, "that the respective States will be careful that the delegates they send to assist in managing the general interests of the Union, take the oaths to the government from which they derive their authority: but as the United States, collectively considered, have interests as well as each particular State, we are of opinion, that some test or obligation, binding upon each delegate while he continues in the trust, to consult and pursue the former as well as the latter, and particularly to assent to no vote or proceeding which may violate the general confederation is necessary. The laws and usages of all civilized nations evince the propriety of an oath on such occasions, and the more solemn and important the deposit, the more strong and explicit ought the obligation to be." [143] Three States only voted in favor of adopting any of the suggestions made by New Jersey: six voted against them, and one was divided. Journals, IV. 272. [144] Secret Journals, I. 433. [145] Secret Journals, I. 440. [146] Ibid. 442. [147] Secret Journals, I. 421. [148] Ibid. 424. [149] Secret Journals, I. 445. [150] After the Confederation had thus been formed, by subsequent cessions of their claims by the other States, to use the language of Mr. Justice Story, "this great source of national dissension was at last dried up." [151] One of the great inducements to the adoption of the Constitution of the United States was to give the general government adequate constitutional power to dispose of the Western territory and to form new States out of it. Congress, under the Confederation, had no express authority to do this, although they proceeded both to dispose of the lands and to erect new States, by the Ordinance of 1787. See The Federalist, No. 38, 42, 43. Story's Commentaries on the Constitution, III. 184-190, 1st edition. CHAPTER VI. NATURE AND POWERS OF THE CONFEDERATION. The nature of the government established by the Articles of Confederation can be understood only by an analysis of their provisions. For this purpose, the instrument must here be examined with reference to three principal topics: first, the union which it established between the different members of the Confederacy; second, the form of the government which it created; and third, the powers which it conferred, or omitted to confer, upon that government. I. The parties to this instrument were free, sovereign, and independent political communities,--each possessing within itself all the powers of legislation and government, over its own citizens, which any political society can possess. But, by this instrument, these several States became united together for certain purposes. The instrument was styled, "Articles of Confederation and Perpetual Union between the States," and the political body thus formed was entitled "The United States of America." The Articles declared--as would, indeed, be implied, in such circumstances, without any express declaration--that each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated by the instrument itself to the United States in Congress assembled. The nature and objects of this union were described as a firm league of friendship between the States, for their common defence, the security of their liberties, and their mutual and general welfare; and the parties bound themselves to assist each other against all force offered to or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or under any pretence whatever. It was also provided, that the free inhabitants of each State should be entitled to all the privileges of free citizens in the several States;[152] that there should be an open intercourse and commerce between the different States; that fugitives from justice from one State to another should be delivered up; and that full faith and credit should be given in each State to the records, acts, and judicial proceedings of every other State.[153] II. The government established by the Articles of Confederation consisted of a single representative body, called a General Congress. In this body were vested all the powers, executive, legislative, and judicial, granted to the United States. The members of it were to be chosen by the States, in such manner as the legislature of each State might determine; no State to be represented by more than seven delegates, or by less than two. No delegate was eligible for more than three years in a period of six; and no delegate could hold any office of emolument under the United States. Each State was to maintain its own delegates, and in the determination of questions, the voting was to be by States, each State having one vote. III. It should be remembered, that the objects and purposes of the Confederation related chiefly to the defence of the States against external attacks; and it was, therefore, as it purported to be, a league for mutual defence and protection, through the combined powers of the whole, operating in certain forms and under certain restrictions. For the manner in which this new authority was to be exercised, we are to look at the powers conferred upon "the United States in Congress assembled." These powers related to external and to internal affairs. With regard to the external relations of the country, Congress was invested with the sole and exclusive right of determining on peace and war, unless in case of an invasion of a State by enemies, or an imminent danger of invasion by Indians; of sending and receiving ambassadors; of entering into treaties and alliances, under the limitation that no treaty of commerce could be made, which would have the effect to restrain the legislature of any State from imposing such imposts and duties on foreigners as their own people were subjected to, or which would operate to prohibit the exportation or importation of any commodity whatever. Congress was also invested with power to deal with all captures and prizes made by the land or naval forces of the United States; to grant letters of marque and reprisal in times of peace; and to establish courts for the trial of piracies and felonies committed on the high seas, and for determining appeals in cases of capture. With regard to internal affairs, Congress was invested with power to decide, in the last resort, on appeal, all disputes between two or more States, concerning boundary, jurisdiction, or any other cause; and also all controversies concerning land-titles, where the parties claimed under different grants of two or more States before the settlement of their jurisdiction; but no State was to be deprived of territory for the benefit of the United States. Congress was also invested with the sole and exclusive right and power of regulating the alloy and value of coin struck by their authority, or by that of any of the United States; of fixing the standard of weights and measures throughout the United States; of regulating the trade and managing all affairs with the Indians, who were not members of any State, provided that the legislative authority of any State, within its own limits, should not be infringed or violated; of establishing and regulating post-offices from one State to another, and exacting postage to defray the expenses; of appointing all officers of the land forces in the service of the United States, and of making rules for the government and regulation of the land and naval forces, and directing their operations. Congress was also invested with power to appoint a "committee of the States," to sit in the recess of Congress, to consist of one delegate from each State, and other committees and civil officers, to manage the general affairs under their direction; to appoint one of their number to preside, but authorizing no person to serve in the office of president more than one year in a term of three years; to ascertain and appropriate the necessary sums for the public service; to borrow money and emit bills on the credit of the United States; to build and equip a navy; and to agree upon the number of land forces and make requisitions upon each State for its quota, in proportion to the numbers of white inhabitants in such State. The legislature of each State was to appoint the regimental officers, enlist the men, and clothe, arm, and equip them, at the expense of the United States. Such were the powers conferred upon Congress by the Articles of Confederation. But the restrictions imposed, in the same instrument, greatly qualified and weakened, and in fact almost rendered nugatory, the greater part of them. It was expressly provided, that Congress should never engage in a war; nor grant letters of marque or reprisal in time of peace; nor enter into any treaties or alliances; nor coin money or regulate its value; nor ascertain the sums of money necessary for the public purposes; nor emit bills; nor borrow money on the credit of the United States; nor appropriate money; nor agree upon the number of vessels for the navy, or the number of land or sea forces to be raised; nor appoint a commander-in-chief of the army or navy;--unless nine States should assent to the same. The Committee of the States authorized to sit during the recess of Congress could not do any of these things, for the assent of nine States could not be delegated. The revenues of the country were left by the Articles of Confederation wholly in the control of the separate States. It was provided, that all charges of war, and all other expenses for the common defence or general welfare, should be defrayed out of a common treasury; but this treasury was to be supplied, not by taxes, duties, or imposts, levied by or under the authority of Congress, but by taxes to be laid and levied by the legislatures of the several States, within such time as might be fixed by Congress. The amount to be furnished by each State was in proportion to the value of the land within its limits granted or surveyed, and the buildings and improvements thereon, to be estimated according to the mode prescribed by Congress. The sole means, therefore, which the Confederation gave to Congress of supplying the treasury of the United States, was to vote what sum was wanted, and to call upon the legislature of each State to pay in its proportion within a given time. The commerce of the country was left entirely within the control of the State legislatures; rendering it the commerce of thirteen different States, each of which could levy what duties it saw fit upon all exports and imports, provided they did not interfere with any treaties then proposed, or touch the property of the United States, or that of any other State. The United States had no power of taxation, direct or indirect. The Articles of Confederation were also entirely without any provision for enforcing the measures which they authorized Congress to adopt for the general welfare of the Union. It was declared in the instrument, that every State should abide by the determinations of Congress on all the questions over which the instrument gave that body control; that the Articles should be inviolably observed by every State; that the Union should be perpetual; and that no alterations should be made in any of the Articles, unless agreed to by Congress, and confirmed by the legislature of every State. But these declarations, however strong and emphatic in their terms, only made the Confederation in fact, as in name, a league or compact between sovereign States; for it gave the government of the Union no power to enforce its own measures or laws by process upon the persons of individuals, and consequently any party to the instrument could infringe any or all of its provisions, without any other consequence than a resort to arms by the general Confederacy, which would have been civil war. These, with some restrictions upon the power of the States in regard to the making of treaties, engaging in war, sending ambassadors, and some other topics, were the main provisions of the Articles of Confederation; and under the government thus constituted, the United States, on the second day of March, 1781, entered upon a new era of civil polity, and commenced a new existence, under somewhat happier auspices than they had known before. It will be seen, in the further development of the period which followed the establishment of this Confederation, down to the calling of the Convention which framed the Constitution, that what I have called the great office of the Confederation, in our political system, was indeed a function of vast importance to the happiness of the American people, but, at the same time, was one that was necessarily soon fulfilled, to be followed by a more perfect organization for the accomplishment of the objects and the satisfaction of the wants which it brought in its train. This office of the Confederation was, to demonstrate to the people of the American States the practicability and necessity of a more perfect union. The Confederation showed to the people of these separate communities, that there were certain great purposes of civil government, which they could not discharge by their separate means; that independence of the crown of Great Britain could not be achieved by any one of them, unassisted by all the rest; that no one of them, however respectable in population or resources, could be received and dealt with, by the governments of the world, as a nation among nations;--but that, by union among themselves, by some political tie, which should combine all their resources in the hands of one directing power, and make them, in some practical sense, one people, it was possible for them to achieve their independence, and take a place among the nations. The Confederation made it manifest, that these consequences could be secured. It did not, indeed, answer all the purposes, or accomplish all the objects, which had been designed or hoped from it: it was defective as a means; but it taught the existence of an end, and demonstrated the possibility of reaching that end, by showing that in some form, and for some purposes, a union of the States was both possible and necessary. It thus made the permanent idea of union familiar to the people of the different States. It did more than this. It created a larger field for statesmanship, by creating larger interests, to be managed by that higher order of men, who could rise above local concerns and sectional objects, and embrace within the scope of their vision the happiness and welfare of a continent. It introduced to men's minds the great ideas of national power and national sovereignty, as the agencies that were to work out the difficult results, which no local power could accomplish; and, although these ideas were at first vague and indefinite, and made but a slow and difficult progress against influences and prejudices of a narrower kind, they were planted in the thoughts of men, to ripen into maturity and strength in the progress of future years. When the eagle grasped in his talons the united shafts of power, and unfurled the scroll which taught that one people could be formed out of many communities, the destiny of America was ascertained.[154] FOOTNOTES: [152] That is to say, that a citizen of any State might go and reside in any other State, and be there entitled to all the privileges of a citizen of that State. [153] The meaning of this is, that, on the production in any State of a law passed or of a judgment rendered in any other State, properly authenticated, it should be admitted that such a law had been passed or such a judgment rendered in the State whose act it purported to be, and that all the legal consequences should follow. [154] The armorial bearings of the United States were adopted on the 20th of June, 1782. Journals, VII. 395. BOOK II. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE ADOPTION OF THE ARTICLES OF CONFEDERATION, IN 1781, TO THE PEACE OF 1783. CHAPTER I. 1781-1783. REQUISITIONS.--CLAIMS OF THE ARMY.--NEWBURGH ADDRESSES.--PEACE PROCLAIMED.--THE ARMY DISBANDED. The interval of time which extends from the adoption of the Articles of Confederation to the initiatory steps for the formation of the Constitution, must, for our purpose, be divided into two periods; that which preceded and that which followed the peace of 1783; in both of which the defects of the Confederation were rapidly developed, and in both of which efforts were made to supply those defects, by an enlargement of the powers of Congress. Our attention, however, will be confined, in the present Book, to the first of these periods. * * * * * Congress assembled, under the Confederation, on the 2d of March, 1781, and the Treaty of Peace, which put an end to the war and admitted the independence of the United States, was definitively signed on the 3d of September, 1783, and was ratified and proclaimed by Congress on the 14th of January, 1784. Notwithstanding the solemn engagements into which the States had entered with each other, under the Articles of Confederation, the prospect of bringing the war to a close, through a compliance with those obligations, was exceedingly faint, at the commencement of the campaign of 1782. The United States had made a treaty of alliance with the king of France, in 1778;[155] and in pursuance of that treaty, six thousand French troops arrived at Newport in July, 1780, and in the spring of 1781 joined the American army near New York. The presence in the country of a foreign force, sent hither by the ancient rival of England, to assist the people of the United States in their contest for independence, encouraged an undue reliance upon external aid. Many of the States became culpably remiss in complying with the requisitions of Congress; and, although they had so recently authorized Congress to make requisitions, both for men and money, and had provided the form in which they were to be made, the adoption of the Articles of Confederation had very little tendency to render the States prompt to discharge the obligations which they imposed. In October and November, 1781, Congress called upon the States to raise their several quotas of eight millions of dollars, for the use of the United States, and recommended to them to lay taxes for raising these quotas separate from those laid for their own particular use, and to pass acts directing the collectors of the taxes, intended for the use of the United States, to pay the same directly into the treasury of the Union.[156] In December of the same year, Congress also called upon the States, with great urgency, to complete their quotas of troops for the next campaign.[157] The aid of Washington was invoked, to influence the action of the States upon these requisitions. On the 22d of January, 1782, he addressed a circular letter to the governors of the States, to be laid before their respective legislatures, on the subject of finance; reminding them how the whole army had been thrown into a ferment twelve months before, for the want of pay and a regular supply of clothing and provisions; warning them that the recent successes in Virginia, by the capture of Lord Cornwallis's army, might have a fatal tendency to cool the ardor of the country in the prosecution of the war; assuring them that a vigorous prosecution of that war could alone secure the independence of the United States; and urging them to adopt such measures as would insure the prompt payment of the sums which Congress had called for.[158] A few days afterwards, he addressed a similar letter to the States, on the subject of completing their quotas of troops, in which he told them that the continuance or termination of the war now rested on their vigor and decision; and that, even if the enemy were, in consequence of their late reverses, disposed to treat, nothing but a decidedly superior force could enable us boldly to claim our rights and dictate the terms of pacification. "And soon," he said, "might that day arrive, and we might hope to enjoy all the blessings of peace, if we could see again the same animation in the cause of our country inspiring every breast, the same passion for freedom and military glory impelling our youths to the field, and the same disinterested patriotism pervading every rank of men, that was conspicuous at the commencement of this glorious revolution; and I am persuaded that only some great occasion was wanting, such as the present moment exhibits, to rekindle the latent sparks of that patriotic fire into a generous flame, to rouse again the unconquerable spirit of liberty, which has sometimes seemed to slumber for a while, into the full vigor of action."[159] Notwithstanding these urgent appeals, the spring of 1782 arrived, and the summer passed away, without any substantial compliance by the States with the requisitions of Congress for either men or money. When Washington arrived in camp, in May, to commence the campaign that was to extort from the British government--now in the hands of a new ministry, supposed to be more favorable to peace--the terms which he hoped might be procured, there were less than ten thousand men in the Northern army; and their numbers were not much increased during the summer.[160] Great and dangerous discontents now existed in the army, both among officers and soldiers, concerning the arrearages of pay; for, as the prospects of peace became brighter, it seemed to become more and more probable, that the army would ultimately be disbanded without adequate provision for its claims, and that officers and men would be thrown penniless upon the world, unpaid by the country whose independence they had achieved. At this period there occurred the famous proceedings of the officers, called the Newburgh Addresses, on the subject of half-pay; and since the claims of the officers and soldiers, as public creditors of the United States, are intimately connected with the constitutional history of the country, it is needful to give here a brief account of them. The pay of the officers in the Revolutionary army was originally established upon so low a scale, that men with families dependent upon them could feel little inducement to remain long in a service, the close of which was to be rewarded only with a patent for a few hundred acres of land in some part of the Western wilderness. In the year 1778, it had become apparent to Washington, that something must be done to avert the consequences of the mistaken policy on which Congress had acted with reference to the army; and while at Valley Forge,--that scene of dreadful suffering by the army,--he wrote on this subject to the President of Congress the first of a series of most able and instructive letters, which extend through the five following years.[161] On the 17th of April, after this first letter had been laid before Congress, a resolution was moved, that an establishment of half-pay be made for officers, who should serve during the war; to begin after its conclusion.[162] Four days afterwards, the sense of the house was taken on the question, whether there should be any provision made for the officers after the conclusion of the war, and the affirmative was carried, by the votes of eight States against four.[163] On the 26th of April, a proposition, that half-pay be granted for life, to commence at the close of the war, passed by a majority of one State; six States voting in the affirmative, five in the negative, and one being divided.[164] The next day, the value of this vote was destroyed by a resolution, which provided that the United States should have the right to redeem the half-pay for life, by giving to the officer entitled six years' half-pay;[165] and on the 15th of May, Congress substituted for the whole scheme a provision of half-pay for seven years, taking away the option of half-pay for life.[166] This miserable and vacillating legislation shows the unpopularity of the scheme of such an establishment, although demanded alike by considerations of justice and policy.[167] The spirit which, for a time, actuated a large part of the people of this country towards the men who were suffering so much in the cause of national independence, evinces an extreme jealousy for the abstract principles of civil liberty, unmitigated by the generous virtues of justice and gratitude. This spirit was duly represented in Congress. The main arguments employed out of doors were, that pensions were contrary to the maxims and spirit of our institutions; that to grant half-pay for life to the officers was establishing a privileged class of men, who were to live upon the public for the rest of their days; and that the officers entered the service on the pay and inducements originally offered, without any promise or prospect of such a reward. This kind of impracticable adherence to a principle, working in this instance the greatest injustice and leading ultimately to a breach of public faith, was the principal cause that prolonged the war, and made it cost so much suffering, so much blood, and so much treasure. The people of the United States adhered so tenaciously to the principles and axioms of freedom, that, even when they had undertaken a war for their own security and independence against a foreign foe, they would not establish a government with the power of direct taxation, or organize an army with suitable rewards for service. The want of such a power in their government led to the enormous emissions of paper money, which brought with them a long train of sufferings and disasters, ending at last in national bankruptcy. The want of justice to the army placed the civil liberty of the country in imminent danger, and finally led to the cruel oppression of men, whose valor had first won, and whose patriotism then saved it from destruction. In the six months which followed the vote of the 15th of May, 1778, the provision which it had made was found to be wholly inadequate, and General Washington, then at Philadelphia, again earnestly pressed the subject upon the attention of Congress. On the 11th of August, 1779, a report from a committee on this subject being under consideration, a motion was made to amend it, by inserting a provision that the half-pay granted by the resolve of the 15th of May, 1778, be extended so as to continue for life; and this motion was carried by a vote of eight States against four.[168] On the 17th, Congress resolved that the consideration of that part of the report for extending the half-pay be postponed, and that it be recommended to the several States that had not already adopted measures for that purpose, to make such further provision for the officers and soldiers enlisted for the war, who should continue in service till the establishment of peace, as would be an adequate compensation for their dangers, losses, and hardships, either by granting to the officers half-pay for life and proper rewards to the soldiers, or in such other manner as might appear most expedient to the legislatures of the several States.[169] Before the passage of this resolve, the State of Pennsylvania had placed her officers upon an establishment of half-pay for life, and with the happiest consequences. But no other State followed her example; and in the autumn of 1780, it became necessary for Washington to apply to Congress again.[170] At length, in consequence of his earnest and repeated appeals, a resolve was passed, on the 21st of October, that the officers who should continue in service to the end of the war should be entitled to half-pay during life, to commence from the time of their reduction.[171] From this time, therefore, the officers of the army continued in the service, relying upon the faith of the country, as expressed in the vote of the 21st of October, 1780, and believing, until they saw proof to the contrary, that the public faith thus pledged to them would be observed.[172] But they were destined to a severe disappointment; and one of the causes of that disappointment was the adoption of the Articles of Confederation. The very change in the constitutional position of the country, from which the most happy results were anticipated, and which undoubtedly cemented the Union, became the means by which they were cheated of their hopes. The Congress of 1780, which had pledged to them a half-pay for life, was the Revolutionary Congress; but the Congress which was to redeem this pledge was the Congress of the Confederation, which required a vote of nine States for an appropriation of money, or a call upon the States for their proportions. When the vote granting the half-pay for life was passed, there were less than nine States in favor of the measure; and after the Confederation was established, the delegates of the States which originally opposed the provision could not be brought to consider it in its true light,--that of a compact with the officers. It was even contended that the vote, having passed before the Confederation was signed and acted upon, was not obligatory upon the Congress under the Confederation, as that instrument required the votes of nine States for an appropriation of money. In this manner, men deluded themselves with the notion, that a change in the form of a government, or in the constitutional method of raising money to discharge the obligations of a contract, can dissolve those obligations, or alter the principles of justice on which they depend. The States in the opposition to the measure refused to be coerced, as they were pleased to consider it, and in the autumn of 1782, the officers became convinced that they had nothing to hope for from Congress, but a reference of their claims to their several States.[173] In November, 1782, preliminary and eventual articles of peace were agreed upon between the United States and Great Britain, by their plenipotentiaries. Nothing had been done by Congress for the claims of the army, and it seemed highly probable that it would be disbanded without even a settlement of the accounts of the officers, and if so, that they would never receive their dues. Alarmed and irritated by the neglect of Congress; destitute of money and credit and of the means of living from day to day; oppressed with debts; saddened by the distresses of their families at home, and by the prospect of misery before them,--they presented a memorial to Congress in December, in which they urged the immediate adjustment of their dues, and offered to commute the half-pay for life, granted by the resolve of October, 1780, for full pay for a certain number of years, or for such a sum in gross, as should be agreed on by their committee sent to Philadelphia to attend the progress of the memorial through the house. It is manifest from statements in this document, as well as from other evidence, that the officers were nearly driven to desperation, and that their offer of commutation was wrung from them by a state of public opinion little creditable to the country. They recited their hardships, their poverty, and their exertions in the cause; and all that they said was fully borne out by their great commander, in his personal remonstrances with many of the members of Congress. The officers asserted, that many of their brethren, who had retired on the half-pay promised by the resolve of 1780, were not only destitute of any effectual provision, but had become objects of obloquy; and they referred with chagrin to the odious view in which the citizens of too many of the States endeavored to place those who were entitled to that provision. But, from the prevailing feeling in Congress and in the country, nothing better was to be expected than a compromise in place of the discharge of a solemn obligation; and this feeling no American historian should fail to record and to condemn. If these men had borne only the character of public creditors, a state of public feeling which drove them into a compromise of their claims ought always to be severely reprehended. But, beyond the capacity of public creditors, they were the men who had fought the battles which liberated the country from a foreign yoke; who had endured every extremity of hardship, every form of suffering, which the life of a soldier knows; who had stood between the common soldiery and the civil power; and often, at the hazard of their lives, preserved that discipline and subordination which the civil power had done too much to hazard. They were, in a word, the men of whom their commander said, that they had exhibited more virtue, fortitude, self-denial, and perseverance, than had perhaps been then paralleled in the history of human enthusiasm. Painful, therefore, as it is, this lesson, of the wrong that may be done by a breach of public faith, must be read. It lies open on the page of history, and is the case of those to whose right arms the people of this country owe the splendid inheritance of liberty. All real palliations should be sought for and admitted. The country was poor: no proper system of finance had been, or could be, developed by a government which had no power of taxation; and the ideas and feelings of the people of many of the States were provincial, and without the liberality and enlargement of thought which comes of intercourse with the world. But, after every apology has exhausted its force, the conscientious student of history must mark the dereliction from public duty; must admit what the public faith required; and must observe the dangerous consequences which attend, and must ever attend, the breach of a public obligation. The immediate consequences which followed, in this instance, were predicted by General Washington, who gave the clearest warning, in advance of the officers' memorial, of the hazards that would attend the further neglect of their claims. But his warning seems to have been unheeded, or to have made but little impression against the prevailing aversion to touch the unpopular subject of half-pay. The committee of the officers were in attendance upon Congress during the whole winter, and early in March, 1783, they wrote to their constituents that nothing had been done. At this moment, the predicament in which Washington stood, in the double relation of citizen and soldier, was critical and delicate in the extreme. In the course of a few days, all his firmness and patriotism, all his sympathies as an officer, on the one side, and his fidelity to the government on the other, were severely tried. On the 10th of March, an anonymous address was circulated among the officers at Newburgh, calling a meeting of the general and field officers, and of one officer from each company, and one from the medical staff, to consider the late letter from their representatives at Philadelphia, and to determine what measures should be adopted to obtain that redress of grievances which they seemed to have solicited in vain. It was written with great ability and skill.[174] It spoke the language of injured feeling; it pointed directly to the sword, as the remedy for injustice; and it spoke to men who were suffering keenly under public ingratitude and neglect. Its eloquence and its passion fell, therefore, upon hearts not insensible, and a dangerous explosion seemed to be at hand. Washington met the crisis with firmness, but also with conciliation. He issued orders forbidding an assemblage at the call of an anonymous paper, and directing the officers to assemble on Saturday, the 15th, to hear the report of their committee, and to deliberate what further measures ought to be adopted as most rational and best calculated to obtain the just and important object in view. The senior officer in rank present was directed to preside, and to report the result to the Commander-in-chief. On the next day after these orders were issued, a second anonymous address appeared from the same writer. In this paper, he affected to consider the orders of General Washington, assuming the direction of the meeting, as a sanction of the whole proceeding which he had proposed. Washington saw, at once, that he must be present at the meeting himself, or that his name would be used to justify measures which he intended to discountenance and prevent. He therefore attended the meeting, and under his influence, seconded by that of Putnam, Knox, Brooks, and Howard, the result was the adoption of certain resolutions, in which the officers, after reasserting their grievances, and rebuking all attempts to seduce them from their civil allegiance, referred the whole subject of their claims again to the consideration of Congress. Even at this distant day, the peril of that crisis can scarcely be contemplated without a shudder. Had the Commander-in-chief been other than Washington, had the leading officers by whom he was surrounded been less than the noblest of patriots, the land would have been deluged with the blood of a civil war. But men who had suffered what the great officers of the Revolution had suffered, had learned the lessons of self-control which suffering teaches. The hard school of adversity in which they had passed so many years made them sensible to an appeal which only such a chief as Washington could make; and, when he transmitted their resolves to Congress, he truly described them as "the last glorious proof of patriotism which could have been given by men who aspired to the distinction of a patriot army; not only confirming their claim to the justice, but increasing their title to the gratitude, of their country."[175] The effect of these proceedings was the passage by Congress of certain resolves, on the 22d of March, 1783, commuting the half-pay for life to five years' full pay after the close of the war, to be received, at the option of Congress, in money, or in such securities as were given to other creditors of the United States.[176] On the 4th of July, the accounts of the army were ordered to be made up and adjusted, and certificates of the sums due were required to be given in the form directed by the Superintendent of the Finances. On the 18th of October, a proclamation was issued, disbanding the army. * * * * * From this time, the officers passed into the whole mass of the creditors of the United States; and although they continued to constitute a distinct class among those creditors, the history of their claims is to be pursued in connection with that of the other public debts of the country. The value of the votes which fixed their compensation, and paid them in public securities, depended, of course, upon the ability of the government to redeem the obligations which it issued. The general financial powers of the Union, therefore, under the Confederation, must now be considered. FOOTNOTES: [155] The treaty was concluded at Paris, February 6, 1778, and was ratified by Congress on the 5th of May. Journals, IV. 256, 257. [156] Resolves of October 30 and November 2, 1781. Journals, VII. 167, 169. [157] Resolves of December 10, 1781. Journals, VII. 190. [158] Writings, VIII. 226. [159] Writings, VIII. 232, 235. [160] Sparks's Life of Washington, p. 380. [161] Letter of April 10, 1778. Writings of Washington, V. 312. [162] Journals, IV. 221. [163] Ibid. 228, 229. The States which voted in the negative were Rhode Island, Connecticut, New Jersey, and South Carolina. [164] Ibid. 243. The States voting in the negative were Massachusetts, Rhode Island, Connecticut, New Jersey, and South Carolina. The State whose vote was divided was Pennsylvania. [165] Ibid. 244. Under this resolve, each officer was entitled to receive half-pay annually, for the term of seven years after the conclusion of war, if living. [166] Ibid. 288. [167] On the 21st of April, in the resolution reported by a committee, the words "an establishment of half-pay for life" were, on motion, changed to a "provision of half-pay";--an amendment which reveals very plainly the character of the popular objections. Journals, IV. 228. [168] Journals, V. 312. [169] Ibid. 316, 317. [170] Writings of Washington, VII. 165, 246. [171] Journals, VI. 336. [172] See General Washington's letter to General Sullivan (in Congress), November 20, 1780. Writings, VII. 297. [173] See the letter of General Lincoln, Secretary at War, to Washington, cited by Mr. Sparks, VIII. 356. [174] The "Newburgh Addresses" were written by John Armstrong, (afterwards General Armstrong,) then a young man, and aide-de-camp to General Gates, with the rank of Major. (Sparks's Life of Gouverneur Morris, I. 253. United States Magazine for January 1, 1823, New York.) The style of these papers, considering the period when they appeared, is remarkably good. They are written with great point and vigor of expression and great purity of English. For the purpose for which they were designed,--a direct appeal to feeling,--they show the hand of a master. [175] March 18, 1783. Writings, VIII. 396. [176] The resolves gave the option to lines of the respective States, and not to the officers individually in those lines, to accept or refuse the commutation. Journals, VIII. 162. CHAPTER II. 1781-1783. FINANCIAL DIFFICULTIES OF THE CONFEDERATION.--REVOLUTIONARY DEBT.--REVENUE SYSTEM OF 1783. It is not easy to ascertain the amount of the public debt of the United States, at the time when the Confederation went into operation. But on the 1st of January, 1783, it amounted to about forty-two millions of dollars. About eight millions were due on loans obtained in France and Holland, and the residue was due to citizens of the United States. The annual interest of the debt was a little more than two million four hundred thousand dollars.[177] The Confederation had no sooner gone into operation, than it was perceived by many of the principal statesmen of the country, that its financial powers were so entirely defective, that Congress would never be able, under them, to pay even the interest on the public debt. Indeed, before the Confederation was finally ratified, so as to become obligatory upon all the States, on the 3d of February, 1781, Congress passed a resolve, recommending to the several States, as indispensably necessary, to vest a power in Congress to levy for the use of the United States a duty of five per cent. _ad valorem_, at the time and place of importation, upon all foreign goods and merchandise imported into any of the States; and that the money arising from such duties should be appropriated to the discharge of the principal and interest of the debts already then contracted, or which might be contracted, on the faith of the United States, for the support of the war; the duties to be continued until the debts should be fully and finally discharged. It was at this time that the office of Superintendent of the Finances was established, and Robert Morris was unanimously elected by Congress to fill it. He was an eminent merchant of Philadelphia, of known financial skill, devoted to the cause of the country, and possessed of very considerable private resources, which he more than once sacrificed to the public service. Under his administration, it is more than probable that, if the States had complied with the requisitions of Congress, the war would have been brought to a close at an earlier period. But there was scarcely any compliance with those requisitions, and, contemporaneously with this neglect, the proposal to vest in Congress the power to levy duties met with serious opposition. On the 30th of October, 1781, Congress made a requisition upon the States for eight millions of dollars, to meet the service of the ensuing year. In January, 1783, one year and three months from the date of this requisition, less than half a million of this sum had been received into the treasury of the United States. After a delay of nearly two years, one State entirely refused its concurrence with the plan of vesting in Congress a power to levy duties, another withdrew the assent it had once given, and a third had returned no answer. The State which refused to grant this power to Congress was Rhode Island. On the 6th of December, 1782, Congress determined to send a deputation to that State, to endeavor to procure its assent to this constitutional change. The increasing discontents of the army, the loud clamors of the public creditors, the extreme disproportion between the current means and the demands of the public service, and the impossibility of obtaining further loans in Europe unless some security could be held out to lenders, made it necessary for Congress to be especially urgent with the legislature of Rhode Island. But, at the moment when the deputation was about to depart on this mission, the intelligence was received that Virginia had repealed the act by which she had previously granted to Congress the power of laying duties, and the proposal was therefore abandoned for a time.[178] But the leading persons then in Congress--who saw the ruin impending over the country; who were aware that the whole amount of money which Congress had received, to carry on the public business for the year then just expiring, was less than two millions of dollars,[179] while the three branches of feeding, clothing, and paying the army exceeded five millions of dollars per annum, exclusive of all other departments of the public service; and who were equally aware that no means whatever existed of paying the interest on the public debts--resolved still to persevere in their endeavors to procure the establishment of revenues equal to the purpose of funding all the debts of the United States. Among these persons, Hamilton and Madison were the most active; and the part which they took, at this period, in the measures for sustaining the sinking credit of the country, and the efforts which they made, are among the less conspicuous, but not less important services, which those great men performed for their country. Another plan was devised, after the failure of that of 1781, for investing Congress with a power to derive a revenue from duties, and, in April, 1783, its promoters procured for it the almost unanimous consent of Congress. This plan recommended the States to vest in Congress the power of levying certain duties upon goods imported into the country, partly specific and partly _ad valorem_; the proceeds of such duties to be applied to the discharge of the interest or principal of the debts incurred by the United States for supporting the war. The duties were to be collected by collectors appointed by the States, but accountable to Congress. It also recommended to the States to establish, for a term of twenty-five years, substantial and effectual revenues, exclusive of the duties to be levied by Congress for supplying their proportions of fifteen millions of dollars annually, for the same purpose; and that, when this plan had been acceded to by all the States, it should be considered as forming a mutual compact, irrevocable by one or more of them without the consent of the whole. It was also proposed that the rule of proportion fixed by the Confederation should be changed from the basis of real estate to the basis of population. This plan was sent out to the States, accompanied by an address, prepared by Mr. Madison, in which the necessity of the measure was urged with much ability and force. Annexed to this paper were various documents, exhibiting the nature and origin of the public debts, and the meritorious characters of the various public creditors; the whole of the Newburgh Addresses, and the proceedings of the officers; the contracts made with the king of France; and a very able answer by Hamilton to the objections of Rhode Island. No stronger and more direct appeal was ever made to the sense of right of any people. Never was the cause of national honor, public faith, and public safety more powerfully and eloquently set forth.[180] And when we consider the various classes of the public creditors, at the close of the war, and remember that the debts of the country had been contracted for the great purpose of establishing its independence, and that there was scarcely a creditor who had not some claim to the gratitude of the country, we cannot but be astonished that such an appeal as was then made should have fallen, as it did, unheeded upon the legislatures and people of many of the States. In the first place, the debts were due to an ally, the generous king of France, who had loaned to the American people his armies and his treasures; who had added to his loans liberal donations; and whose very contracts for repayment contained proof of his magnanimity. In the next place, they were due to that noble band of officers and soldiers, who had fought the battles of their country, and who now asked only such a portion of their dues as would enable them to retire, with the means of daily bread, from the field of victory and glory into the bosom of peace and privacy, and such effectual security for the residue of their claims, as their country was unquestionably able to provide. In the last place, they were due partly to those citizens of the country who had lent their funds to the public, or manifested their confidence in the government by receiving transfers of public securities from those who had so lent, and partly to those whose property had been taken for the public service.[181] The United States had achieved their independence. They were about to take rank among the nations of the world. As they should meet this crisis, their character would be determined. The rights for which they had contended were the rights of human nature. These rights had triumphed, and now formed the basis of the civil polity of thirteen independent States. The forms of republican government were therefore called upon to justify themselves by their fruits. The higher qualities of national character--justice, good faith, honor, gratitude--were called upon to display an example, that would save the cause of republican liberty from reproach and disgrace.[182] But, unhappily, the establishment of peace tended to weaken the slender bond which held the Union together, by turning the attention of men to the internal affairs of their own States. The advantage and the necessity of giving the regulation of foreign commerce to the general government, if perceived at all, was perceived only by a few leading statesmen. The commercial States fancied that they profited by a condition of things which enabled them as importers to levy contribution on their neighbors. The people did not as yet perceive, that, without some central authority to regulate the whole trade alike, the clashing regulations of rival States would sooner or later destroy the Confederacy. Nor were they willing to be taxed for the payment of the public debts. The people of the United States had not yet begun to feel, that such a burden is to be borne as one of the first of public and social duties. That part of the financial plan of 1783, which required from the States a pledge of internal revenues for twenty-five years, met with so much opposition, that Congress was obliged to abandon it, and to confine its efforts to that part of the scheme which related to the duties on imports. In 1786, all the States, except New York, had complied with the latter part of the plan; but the refusal of that State rendered the whole of it inoperative, and no resource remained to Congress, after the close of the war, but the old method of making requisitions on the States, under the rule of the Confederation.[183] At the return of peace, therefore, the Confederation had had a trial of two years and six months, as a government for purposes of war. It was for these purposes, mainly, that it was established; being in fact, as it was in name, a league of friendship between sovereign States, for their common defence, the security of their liberties, and their mutual and general welfare; the parties to which had bound themselves by it to assist each other against all external attacks. Doubtless the framers of the Confederation contemplated its duration beyond the period of the war; for, besides the perpetual character of the Union, which it sought and professed to establish, it had certain functions which were manifestly to be exercised in peace as well as in war. These functions, however, were few. The government was framed during a revolutionary war, for the purposes of that war, and it went into operation while the war was still waged; taking the place and superseding the powers of the Revolutionary Congress, under which the war had been commenced and prosecuted. A written constitution, with a precise and well-defined mode of operation, had thus succeeded to the vague and indefinite, but ample, powers of the earlier government. But in the very modes of its operation, there was a monstrous defect, which distorted the whole system from the true proportions and character of a government. It gave to the Confederation the power of contracting debts, and at the same time withheld from it the power of paying them. It created a corporate body, formed by the Union and known as the United States, and gave to it the faculty of borrowing money and incurring other obligations. It provided the mode in which its treasury should be supplied for the reimbursement of the public creditor. But over the sources of that supply, it gave the government contracting the debts no power whatever. Thirteen independent legislatures granted or withheld the means which were to enable the general government to pay the debts which the general constitution had enabled it to contract, according to their own convenience or their own views and feelings as to the purposes for which those debts had been incurred. Yet the debts were wholly national in their character, and by the nation they were to be discharged. But, by the operation of the system under which the nation had undertaken to discharge its obligations, the duty of performance was parcelled out among the various subordinate corporations of States, and the country was thus placed in the position of an empire whose power was at the mercy of its provinces, and was sure to be controlled by provincial objects and ideas. A government thus situated, engaged in the prosecution of a war, perpetually borrowing, but never paying, and scarce likely ever to pay, was in a position to prosecute that war with far less than the real energies and resources of the nation: and it stands the recorded opinion of him who conducted his country through the whole struggle, and without whom it could not, under this defective system, have achieved its independence, that the war would have terminated sooner, and would have cost vastly less both of blood and treasure, if the government of the Union had possessed the power of direct or indirect taxation.[184] But the government of the Confederation was one that trusted too much to the patriotism and sense of honor of the different populations of the different States. The moral feelings of a people will prompt to high and heroic deeds; will impel them with irresistible force and energy to the accomplishment of the great objects of liberty and happiness; and will develop in individuals the highest capacity for endurance that human nature can display. They did so in the American Revolution. The annals of no people, struggling for liberty, exhibit more of the virtues of fortitude, self-denial, and an ardent love of freedom, than ours exhibit, especially in the earlier stages of the contest. But any _feelings_ are an unsafe and uncertain reliance for the regular and punctual operations of civil government. The fiscal concerns of a nation, left to depend principally upon the prevailing sentiments of justice, honor, and gratitude,--upon the connection between these sentiments and that passion for liberty which animated the earlier struggles for national independence,--are exposed to great hazards. If an appeal to the feelings of a people constitutes the principal ground of security for the public creditor, other feelings may intervene, which will lead to a denial of the justice of the claim; for it is the very nature of such an appeal to submit the whole question of obligation and duty to popular determination. That government alone is likely to discharge the just obligations of any people, which possesses both the power to declare what those obligations are, and the power to levy the means of payment, without a reference of either point to popular sentiment. The history of the Confederation contains abundant proofs of the soundness of this position. At the close of the war, a debt of more than forty millions of dollars was due from the United States to various classes of creditors, and the whole of it had been contracted either by the government of the Confederation, or by its predecessors, for whose contracts the Confederation was expressly bound, by the Articles, to provide. This debt could not be discharged without a grant of internal revenues from the States, and without a grant of the power to collect other revenues from the external trade of the country. The appeal that was made by the government in order to obtain these grants was addressed almost wholly to the moral sentiments of the people of the different States; the time had scarcely arrived, although rapidly approaching, for an appeal to those interests which were involved in the surrender to the general government of the power of regulating foreign commerce;[185] and consequently the arguments addressed to the sense of justice and the feeling of gratitude were answered by discussions of the propriety, justice, and reasonableness of some of the claims, for which the States were thus called upon to provide, as existing debts of the country, not without the hope, entertained in some quarters, of involving the whole in confusion and final rejection.[186] The design of the framers of the revenue system of 1783 was twofold; first, to do justice to the creditors of the country, by procuring adequate power to fund the public debts; and second, to strengthen and consolidate the national government, by means of those debts and of the various interests which would be combined in the great object of their liquidation. They foresaw, on the approach of peace, that to leave these debts to be provided for by the States individually would lead to a separation of interests fatal to the continuance of the Union; but that to make the United States responsible for the whole of them would be to create a bond of union, that would be effectual and operative, after the external pressure of war, which had hitherto held the States together, should have been removed. For this purpose, they undoubtedly availed themselves of the discontents of the army, a class of the public creditors the justice of whose claims there was immediate danger in denying. There is no reason to suppose that these discontents were promoted by any one concerned in giving direction to the action of Congress. But before the crisis had been reached in the "Newburgh Addresses," it was perceived to be extremely important to prevent the army from turning away from the general government, as their debtor, to look to their respective States; and, after the imminent hazard of that moment had passed, the claims of the army were used, and used most rightfully, to impress upon the States the necessity of yielding to Congress the powers necessary to do justice.[187] In the proposal of this scheme of finance, involving, as it did, a material change in the operation of the existing constitution of the country, there was great wisdom; and it was eminently fortunate that it went forth before the advent of peace, to be considered and acted upon by the States. The system of the Confederation had utterly failed to supply the means of sustaining the public credit of the Union, and the consciousness of that failure tended to produce a resolution of the Union into its component elements, the States. Men had begun to abandon the hope of paying the debts of the country; or, if they were to be paid at all, they had begun to look to the States, in their individual capacities, as the ultimate debtors, to whom at least a part of the claims was to be referred. Had the country been permitted to pass from a state of war to a state of peace, without the suggestion and proposal of a definite system for funding these debts on continental securities, the Union would at once have been exhausted of all vitality. The Confederation, left to discharge the functions which belonged to it in peace, without the power of relieving the burdens which it had entailed upon the country during the war, would have been everywhere regarded as a useless machine, the purposes of which--poorly answered in the period of its greatest activity--had entirely ceased to exist. Congress would have been attended by delegates from few of the States, if attended at all;[188] and the rapid decay of the Union would have been marked by the feeble, spasmodic, and unsuccessful efforts of some of them to discharge so much of the general burdens as could have been assigned to them in severalty; the open repudiation of others; and the final confusion and loss of the whole mass of the debts, in universal bankruptcy, poverty, and disgrace. But the comprehensive scheme of 1783, although never adopted, saved the imperfect Union that then existed from the destruction to which it was hastening. It saved it for a prolonged, though feeble existence, through a period of desperate exhaustion. It saved it, by ascertaining the debts of the country, fixing their national character, and proposing a national system for their discharge. It directed the attention of the States to the advantage and the necessity of giving up to the Union some part of the imposts that might be levied on foreign commodities, and thus led the way to that grand idea of uniformity of regulation, which was afterwards developed as the true interest of communities, which, from their geographical and moral relations, constitute in fact but one country. It is not intended, however, in assigning this influence to the revenue system proposed in 1783, to suggest that it contained the germ of the present Constitution. It was an essentially different system. It proposed the enlargement of the powers of Congress, as they existed under the Confederation, only by the grant to the United States of the right to collect certain duties on foreign importations, for the limited period of twenty-five years, to be applied to the discharge of the debts contracted for the purposes of the war, but to be collected by officers appointed by the States, although amenable to Congress; and the levy and collection by the States of certain internal taxes, during the same limited term, for the purpose of raising certain proportionate sums, to be paid over to the United States, for the same object. So far, therefore, as this system suggested any new powers, there is a wide difference between its features and principles and those of an entire and irrevocable surrender to the Union of the whole subject of taxing and regulating foreign commerce. But the influence of this proposal upon the country, during the four years which followed, is to be measured by the evident necessities which it revealed, and by the means to which it pointed for their relief;--means which, though never applied, and, if applied, would have proved inadequate, still showed, through the period of increasing weakness in the Union, the high obligations which rested upon the country, and which could be discharged only by the preservation of the Union. * * * * * NOTE TO PAGE 185. ON THE HALF-PAY FOR THE OFFICERS OF THE REVOLUTION. In Connecticut, the opposition to the plan of enabling Congress to fund the public debts arose from the jealousy with which the provision of half-pay for the officers of the army had always been regarded in that State. In October, 1783, Governor Trumbull, in an address to the Assembly declining a reëlection, had spoken of the necessity of enlarging the powers of Congress, and of strengthening the arm of the government. A committee reported an answer to this address, which contained a paragraph approving of the principles which the Governor had inculcated, but it was stricken out in the lower house. Jonathan Trumbull, Jr., who had been one of Washington's aids, thus wrote to him concerning the rejection of this paragraph: "It was rejected, lest, by adopting it, they should seem to convey to the people an idea of their concurring with the political sentiments contained in the address; so exceedingly jealous is the spirit of this State at present respecting the powers and the engagements of Congress, arising principally from their aversion to the half-pay and commutation granted to the army; principally, I say, arising from this cause. It is but too true, that some few are wicked enough to hope, that, by means of this clamor, they may be able to rid themselves of the whole public debt, by introducing so much confusion into public measures as shall eventually produce a general abolition of the whole." (Writings of Washington, IX. 5, note.) It appears from the Journals of Congress, that in November, 1783, the House of Representatives of Connecticut sent some remonstrance to Congress respecting the resolution which had granted half-pay for life to the officers, which was referred to a committee, to be answered. In the report of this committee it was said, that "the resolution of Congress referred to appears by the yeas and nays to have been passed according to the then established rules of that body in transacting the business of the United States; the resolution itself had public notoriety, and does not appear to have been formally objected against by the legislature of any State till after the Confederation was completely adopted, _nor till after the close of the war_." These words were stricken out from the report by a vote of six States against one, two States declining to vote. The journal gives no further account of the matter. (Journals, IX. 79. March 12, 1784.) In Massachusetts, the half-pay had always been equally unpopular. The legislature of that State, on the 11th of July, 1783, addressed a letter to Congress, to assign, as a reason for not agreeing to the impost duty, the grant of half-pay to the officers. The tone of this letter does little credit to the State. "_Commonwealth of Massachusetts._ "Boston, July 11. 1783. "Sir:-- "The Address of the United States in Congress assembled has been received by the legislature of the Commonwealth of Massachusetts; and, while they consider themselves as bound in duty to give Congress the highest assurance that no measures consistent with their circumstances, and the constitution of this government and the Federal Union, shall remain unattempted by them to furnish those supplies which justice demands, and which are necessary to support the credit and honor of the United States, they find themselves under a necessity of addressing Congress in regard to the subject of the half-pay of the officers of the army, and the proposed commutation thereof; with some other matters of a similar nature, which produce among the people of this Commonwealth the greatest concern and uneasiness, and involve the legislature thereof in no small embarrassments. The legislature have not been unacquainted with the sufferings, nor are they forgetful of the virtue and bravery, of their fellow-citizens in the army; and while they are sensible that justice requires they should be fully compensated for their services and sufferings, at the same time it is most sincerely wished that they may return to the bosom of their country, under such circumstances as may place them in the most agreeable light with their fellow-citizens. Congress, in the year 1780, resolved, that the officers of the army, who should continue therein during the war, should be entitled to half-pay for life; and at the same time resolved, that all such as should retire therefrom, in consequence of the new arrangement which was then ordered to take place, should be entitled to the same benefit; a commutation of which half-pay has since been proposed. The General Court are sensible that the United States in Congress assembled are, by the Confederation, vested with a discretionary power to make provision for the support and payment of the army, and such civil officers as may be necessary for managing the general affairs of the United States; but in making such provision, due regard ever ought to be had to the welfare and happiness of the people, the rules of equity, and the spirit and general design of the Confederation. We cannot, on this occasion, avoid saying, that, with due respect, we are of opinion those principles were not duly attended to, in the grant of half-pay to the officers of the army; that being, in our opinion, a grant of more than an adequate reward for their services, and inconsistent with that equality which ought to subsist among citizens of free and republican States. Such a measure appears to be calculated to raise and exalt some citizens in wealth and grandeur, to the injury and oppression of others, even if the inequality which will happen among the officers of the army, who have performed from one to eight years' service, should not be taken into consideration. The observations which have been made with regard to the officers of the army will in general apply to the civil officers appointed by Congress, who, in our opinion, have been allowed much larger salaries than are consistent with the state of our finances, the rules of equity, and a proper regard to the public good. And, indeed, if the United States were in the most wealthy and prosperous circumstances, it is conceived that economy and moderation, with respect to grants and allowances, in opposition to the measures which have been adopted by monarchical and luxurious courts, would most highly conduce to our reputation, even in the eyes of foreigners, and would cause a people, who have been contending with so much ardor and expense for republican constitutions and freedom, which cannot be supported without frugality and virtue, to appear with dignity and consistency; and at the same time would, in the best manner, conduce to the public happiness. It is thought to be essentially necessary, especially at the present time, that Congress should be expressly informed, that such measures as are complained of are extremely opposite and irritating to the principles and feelings which the people of some Eastern States, and of this in particular, inherit from their ancestry. The legislature cannot without horror entertain the most distant idea of the dissolution of the Union which subsists between the United States, and the ruin which would inevitably ensue thereon; but with great pain they must observe, that the extraordinary grants and allowances which Congress have thought proper to make to their civil and military officers have produced such effects in this Commonwealth as are of a threatening aspect. From these sources, and particularly from the grant of half-pay to the officers of the army, and the proposed commutation thereof, it has arisen, that the General Court has not been able hitherto to agree in granting to the United States an impost duty, agreeable to the recommendation of Congress; while the General Assembly at the same time have been deeply impressed with a sense of the necessity of speedily adopting some effectual measures for supplying the continental treasury, for the restoration of the public credit, and the salvation of the country;--and propose, as the present session is near terminating, again to take the subject of the impost duty into consideration early in the next. From these observations, you may easily learn the difficult and critical situation the legislature is in, and they rely on the wisdom of Congress to adopt and propose some measure for relief in this extremity. "In the name and by order of the General Court, "We are your Excellency's most obedient humble servants, "SAMUEL ADAMS, _President of the Senate_. "TRISTRAM DALTON, _Speaker of the House of Representatives_. "HIS EXCELLENCY THE PRESIDENT OF CONGRESS." This letter was thought worthy an answer, and accordingly a report upon it was brought in by Mr. Madison, and adopted in Congress, containing among other things the following:-- "Your committee consider the measure of Congress as the result of a deliberate judgment, framed on a general view of the interests of the Union at large. They consider it to be a truth, that no State in this Confederacy can claim (more equitably than an individual in a society) to derive advantages from a Union, without conforming to the judgment of a constitutional majority of those who compose it; still, however, they conceive it will be found no less true, that, if a State every way so important as Massachusetts should withhold her solid support to constitutional measures of the Confederacy, the result must be a dissolution of the Union;--and then she must hold herself as alone responsible for the anarchy and domestic confusion that may succeed, and for exposing all these confederated States (who at the commencement of the late war leagued to defend her violated rights) an easy prey to the machinations of their enemies, and the sport of European politics; and therefore they are of opinion, that Congress should still confide that a free, enlightened, and generous people will never hazard consequences so perilous and alarming, and in all circumstances rely on the wisdom, temper, and virtue of their constituents, which (guided by an all-wise Providence) have ever interposed to avert impending evils and misfortunes. Your committee beg leave further to observe, that, from an earnest desire to give satisfaction to such of the States as expressed a dislike to the half-pay establishment, a sum in gross was proposed by Congress, and accepted by the officers, as an equivalent for their half-pay. That your committee are informed, that such equivalent was ascertained on established principles which are acknowledged to be just, and adopted in similar cases; but that if the objections against the commutation were ever so valid, yet, as it is not now under the arbitration of Congress, but an act finally adopted, and the national faith pledged to carry it into effect, they could not be taken into consideration. With regard to the salaries of civil officers, it may be observed, that the necessaries of life have been very high during the war: hence it has happened that even the salaries complained of have not been found sufficient to induce persons properly qualified to accept of many important offices, and the public business is left undone." (Journals of Congress, VIII. 379--385. September 25, 1783.) * * * * * NOTE TO PAGE 186. ON THE NEWBURGH ADDRESSES. There was a period in this business, when the officers would have accepted from Congress a recommendation to their several States for the payment of their dues. Their committee, consisting of General McDougall, Colonel Brooks of Massachusetts, and Colonel Ogden of New Jersey, arrived in Philadelphia about the 1st of January. In their memorial to Congress, they abstained from designating the funds from which they desired satisfaction of their demands, because their great object was to get a settlement of their accounts and an equivalent for the half-pay established. But they were, in fact, at one time, impressed with the belief that their best, and indeed their only security, was to be sought for in funds to be provided by the States, under the recommendation of Congress. This plan would have involved a division of the army into thirteen different parts, leaving the claims of each part to be satisfied by its own State: a course that would unquestionably have led to the rejection of their demands in some States, and probably in many. To prevent this, there is little doubt that the influence of those members of Congress who wished to promote their interests, and to identify them with the interests of the other public creditors, was used; and by the middle of February the committee of the officers became satisfied, that the army must unitedly pursue a common object, insisting on the grant of revenues to the general government, adequate to the liquidation of all the public debts. (Letter of Gouverneur Morris to General Greene, February 15, 1783. Life, by Sparks, I. 250.) The point, however, which they continued to urge, was the commutation; and upon this they encountered great obstacles. The committee of Congress to whom their memorial was referred went into a critical examination of the principles of annuities, in order to determine on an equivalent for the half-pay for life, promised by the resolve of 1780. The result was a report, declaring that six years' full pay was the proper equivalent. This report was followed by a declaratory resolve, which was passed, "that the troops of the United States, in common with all the creditors of the same, have an undoubted right to expect security; and that Congress will make every effort to obtain, from the respective States, substantial funds, adequate to the object of funding the whole debt of the United States, and will enter upon an immediate and full consideration of the nature of such funds, and the most likely mode of obtaining them." The remainder of the report, however, was referred to a new committee of five, the number of years being considered too many. The second committee reported five years' whole pay as an equivalent, after another calculation of annuities; but the approval of nine States could not be obtained. A desire was then expressed by some of the members, who were opposed both to the commutation and the half-pay, to have more time for consideration, and this was granted. This was the position of the matter on the 8th of February, when the committee of the officers wrote to General Knox on the part of the army. They stated that "Massachusetts, New York, Pennsylvania, Virginia, North and South Carolina were for the equivalent; New Hampshire, Rhode Island, Connecticut, and Jersey against it. There is some prospect of getting one more of these States to vote for the commutation. If this is accomplished, with Maryland and Delaware, the question will be carried; whenever it is, as the report now stands, it will be at the election of the line, as such, to accept of the commutation or retain their claim to the half-pay, Congress being determined, that no alteration shall take place in the emolument held out to the army but by their consent. This rendered it unnecessary for us to consult the army on the equivalent for half-pay. The zeal of a great number of members of Congress to get continental funds, while a few wished to have us referred to the States, induced us to conceal what funds we wished or expected, lest our declaration for one or the other might retard a settlement of our accounts, or a determination on the equivalent for half-pay. Indeed, some of our best friends in Congress declared, however desirous they were to have our accounts settled, and the commutation fixed, as well as to get funds, yet they would oppose referring us to the States for a settlement and security, till all prospect of obtaining continental funds was at an end. Whether this is near or not, as commutation for the half-pay was one of the principal objects of the address, the obtaining of that is necessary, previous to our particularizing what fund will be most agreeable to us: this must be determined by circumstances. If Congress get funds, we shall be secured. If not, the equivalent settled, a principle will be established, which will be more acceptable to the Eastern States than half-pay, if application must be made to them. As it is not likely that Congress will be able to determine soon on the commutation, (for the reasons above mentioned,) it is judged necessary that Colonel Brooks return to the army, to give them a more particular detail of our prospects than can be done in the compass of a letter." (Writings of Washington, VIII. 553, 554.) Two classes of persons existed at this time in Congress, of very different views; the one attached to State, the other to continental politics; the one strenuous advocates for funding the public debts upon solid securities, the other opposed to this plan, and finally yielding to it only in consequence of the clamors of the army and the other public creditors. The advocates for continental funds, convinced that nothing could be done for the public credit by any other measures, determined to blend the interests of the army and those of the other creditors in their scheme, in order to combine all the motives that could operate upon different descriptions of men in the different States. Washington, who naturally regarded the interests of the army as the first object in point of importance, and who had not given his attention so much to the general financial affairs of the country, seems to have thought it unadvisable to bring the claims of the army before the States, in connection with the other public debts. On the 4th of March, he wrote to Hamilton (then in Congress), that "the just claims of the army ought, and it is to be hoped will, have their weight with every sensible legislature in the United States, if Congress point to their demands, and show, if the case is so, the reasonableness of them, and the impracticability of complying with them without their aid. In any other point of view, it would in my opinion be impolitic to introduce the army on the tapis, lest it should excite jealousy and bring on its concomitants. The States surely cannot be so devoid of common sense, common honesty, and common policy, as to refuse their aid on a full, clear, and candid representation of facts from Congress; more especially if these should be enforced by members of their own body, who might demonstrate what the inevitable consequences of failure will lead to." (Writings, VIII. 390.) But while the advocates of the continental system were maturing their plans, new difficulties arose, in consequence of the proceedings of the officers at Newburgh, and of the jealousies which the army began to entertain. Among the resolutions adopted by the officers was one, which expressed their unshaken confidence in the justice of Congress and the country, and their conviction that Congress would not disband them, until their accounts had been liquidated, and adequate funds established for their payment. But Congress had no constitutional power, under the Confederation, to demand funds of the States; and to determine that the army should be continued in service until the States granted the funds, which it was intended to recommend, would be to determine that it should remain a standing army in time of peace, until the States should comply with the recommendation. On the other hand, Congress had no present means of paying the army, if they were to disband them. This dilemma rendered it necessary to evade for a short time any explicit declaration of the purposes of Congress as to disbanding the army; and hence arose a jealousy, on the part of the army, that they were to be used as mere puppets to operate upon the country, in favor of a general revenue system. Washington himself communicated the existence of these suspicions to Hamilton, on the 4th of April, advising that the army should be disbanded as soon as possible, consulting its wishes as to the mode. He also intimated that the Superintendent of the Finances, Robert Morris, was suspected to be at the bottom of the scheme of keeping the army together, for the purpose of aiding the adoption of the revenue system. Hamilton's reply explains the position of the whole matter, and the motives and purposes of those with whom he acted. "But the question was not merely how to do justice to the creditors, but how to restore public credit. Taxation in this country, it was found, could not supply a sixth part of the public necessities. The loans in Europe were far short of the balance, and the prospect every day diminishing; the court of France telling us, in plain terms, she could not even do as much as she had done; individuals in Holland, and everywhere else, refusing to part with their money on the precarious tenure of the mere faith of this country, without any pledge for the payment either of principal or interest. In this situation, what was to be done? It was essential to our cause that vigorous efforts should be made to restore public credit; it was necessary to combine all the motives to this end, that could operate upon different descriptions of persons in the different States. The necessity and discontents of the army presented themselves as a powerful engine. But, sir, these gentlemen would be puzzled to support their insinuations by a single fact. It was indeed proposed to appropriate the intended impost on trade to the army debt, and, what was extraordinary, by gentlemen who had expressed their dislike to the principle of the fund. I acknowledge I was one that opposed this, for the reasons already assigned, and for these additional ones: _that_ was the fund on which we most counted to obtain further loans in Europe; it was necessary we should have a fund sufficient to pay the interest of what had been borrowed and what was to be borrowed. The truth was, these people in this instance wanted to play off the army against the funding system. As to Mr. Morris, I will give your Excellency a true explanation of his conduct. He had been for some time pressing Congress to endeavor to obtain funds, and had found a great backwardness in the business. He found the taxes unproductive in the different States; he found the loans in Europe making a very slow progress; he found himself pressed on all hands for supplies; he found himself, in short, reduced to this alternative,--either of making engagements which he could not fulfil, or declaring his resignation in case funds were not established by a given time. Had he followed the first course, the bubble must soon have burst; he must have sacrificed his credit and his character, and _public_ credit, already in a ruined condition, would have lost its last support. He wisely judged it better to resign; this might increase the embarrassments of the moment, but the necessity of the case, it was to be hoped, would produce the proper measures, and he might then resume the direction of the machine with advantage and success. He also had some hope that his resignation would prove a stimulus to Congress. He was, however, ill-advised in the publication of his letters of resignation. This was an imprudent step, and has given a handle to his personal enemies, who, by playing upon the passions of others, have drawn some well-meaning men into the cry against him. But Mr. Morris certainly deserves a great deal from his country. I believe no man in this country but himself could have kept the money machine going during the period he has been in office. From every thing that appears, his administration has been upright as well as able. The truth is, the old leaven of Deane and Lee is at this day working against Mr. Morris. He happened in that dispute to have been on the side of Deane, and certain men can never forgive him.... The matter, with respect to the army, which has occasioned most altercation in Congress, and most dissatisfaction in the army, has been the half-pay. The opinions on this head have been two: one party was for referring the several lines to their States, to make such commutation as they should think proper; the other, for making the commutation by Congress, and funding it on continental security. I was of this last opinion, and so were all those who will be represented as having made use of the army as our puppets. Our principal reasons were:--First, by referring the lines to their respective States, those which were opposed to the half-pay would have taken advantage of the officers' necessities to make the commutation short of an equivalent. Secondly, the inequality which would have arisen in the different States when the officers came to compare, (as has happened in other cases,) would have been a new source of discontent. Thirdly, such a reference was a continuance of the old, wretched State system, by which the ties between Congress and the army have been nearly dissolved,--by which the resources of the States have been diverted from the common treasury and wasted: a system which your Excellency has often justly reprobated. I have gone into these details to give you a just idea of the parties in Congress. I assure you, upon my honor, sir, I have given you a candid statement of facts, to the best of my judgment. The men against whom the suspicions you mention must be directed, are in general the most sensible, the most liberal, the most independent, and the most respectable characters in our body, as well as the most unequivocal friends to the army; in a word, they are the men who think continentally." (Life of Hamilton, II. 162-164.) FOOTNOTES: [177] The debt due to the crown of France was ascertained in 1782 to be eighteen millions of livres; and by the contract entered into by the Unites States with the king of France, on the 16th of July, 1782, the principal of this debt was to be paid in twelve annual instalments of one million five hundred thousand livres each, in twelve years, to commence from the third year after a peace, at the royal treasury in Paris. The interest was payable annually, at the time and place stipulated for the payment of the instalments of the principal, at five per cent. The king generously remitted the arrears of interest due at the date of the contract. There was also due to the King of France ten millions of livres, borrowed by him of the States-General of the Netherlands for the use of the United States, and the payment of which he had guaranteed. This sum was to be paid in Paris in ten annual instalments of one million of livres each, commencing on the 5th of November, 1787. The interest on this loan was payable in Paris immediately, and the first payment of interest became due on the 5th of November, 1782. There was also due to the Farmers-General of France one million of livres, and to the king six millions of livres, on a loan for the year 1783; making in the whole thirty-eight millions of livres, or $7,037,037, due in France. There was also due to money-lenders in Holland $671,000; for money borrowed by Mr. Jay in Spain, $150,000; and a year's interest on the Dutch loan of ten millions of livres, amounting to $26,848;--making the whole foreign debt $7,885,085. The domestic debt amounted to $34,115,290. Five millions of this were due to the army, _under the commutation_ resolves of March, 1783. The residue was held by other citizens, or consisted of arrears of interest. The whole debt of the United States was estimated at $42,000,375, and the annual interest of this sum was $2,415,956. [178] Mr. Madison (under the date of December 24, 1782) says, that, on the receipt of this intelligence, "the most intelligent members were deeply affected, and prognosticated a failure of the impost scheme, and the most pernicious effects to the character, the duration, and the interests of the Confederacy. It was at length, notwithstanding, determined to persist in the attempt for permanent revenue, and a committee was appointed to report the steps proper to be taken." Debates in the Congress of the Confederation, Elliot, I. 17. [179] $1,545,818 and 30/90 was the whole amount. [180] On the final question, as to the revenue system, Hamilton voted against it. His reasons were given in a letter to the Governor of New York, under date of April 14, 1783. They were, "First, that it does not designate the funds (except the impost) on which the whole interest is to arise; and by which (selecting the capital articles of visible property) the collection would have been easy, the funds productive, and necessarily increasing with the increase of the country. Secondly, that the duration of the funds is not coextensive with the debt, but limited to twenty-five years, though there is a moral certainty that in that period the principal will not, by the present provision, be fairly extinguished. Thirdly, that the nomination and appointment of the collectors of the revenue are to reside in each State, instead of, at least, the nomination being in the United States; the consequence of which will be, that those States which have little interest in the funds, by having a small share of the public debt due to their own citizens, will take care to appoint such persons as are the least likely to collect the revenue." Still, he urged the adoption of the plan by his own State, "because it is her interest, at all events, to promote the payment of the public debt in continental funds, independent of the general considerations of union and propriety. I am much mistaken, if the debts due from the United States to the citizens of the State of New York do not considerably exceed its proportion of the necessary funds; of course, it has an immediate interest that there should be a continental provision for them. But there are superior motives that ought to operate in every State,--the obligations of national faith, honor, and reputation. Individuals have been too long already sacrificed to the public convenience. It will be shocking, and, indeed, an eternal reproach to this country, if we begin the peaceable enjoyment of our independence by a violation of all the principles of honesty and true policy. It is worthy of remark, that at least four fifths of the domestic debt are due to the citizens of the States from Pennsylvania, inclusively, northward." Life of Hamilton, II. 185, 186. [181] Address. [182] Ibid. [183] With what success this was attended may be seen from the fact, that, from the year 1782 to the year 1786, Congress made requisitions on the States for the purpose of paying the interest on the public debts, of more than six millions of dollars, and on the 31st of March, 1787, about one million only of this sum had been received. The interest of the debt due to domestic creditors remained wholly unpaid; money was borrowed in Europe to pay the interest on the foreign loans; and the domestic debt sunk to so low a value, that it was often sold for one tenth of its nominal amount. [184] General Washington's letter to Hamilton, March 31, 1783. Writings, VIII. 409, 410. Circular Letter to the Governors of the States, on disbanding the army. Ibid. 439, 451. [185] None of the documents, connected with the Address to the People of the United States, issued by Congress in 1783, discussed the question as one of direct interest and advantage, except Hamilton's answer to the objections of Rhode Island. The Address itself appealed entirely to considerations of honor, justice, and good faith. Hamilton's paper, however, showed with great perspicacity, that the proposed impost would not be unfavorable to commerce, but the contrary; that it would not diminish the profits of the merchant, being too moderate in amount to discourage the consumption of imported goods, and therefore that it would not diminish the extent of importations; but that, even if it had this tendency, it was a tendency in the right direction, because it would lessen the proportion of imports to exports, and incline the balance in favor of the country. But the great question of yielding the control of foreign commerce to the Union, _for the sake of uniformity of regulation_, was not touched in any of these papers. The time for it had not arrived. [186] See note at the end of this chapter. [187] See note on page 194. [188] As it was, the approach of peace had reduced the attendance upon Congress below the constitutional number of States necessary to ratify the treaty, when it was received. On the 23d of December, 1783, a resolve was passed, "That letters be immediately despatched to the executives of New Hampshire, Connecticut, New York, New Jersey, South Carolina, and Georgia, informing them that the safety, honor, and good faith of the United States require the immediate attendance of their delegates in Congress; that there have not been during the sitting of Congress at this place [Annapolis] more than seven States represented, namely, Massachusetts, Rhode Island, Pennsylvania, Delaware, Maryland, Virginia, and North Carolina, and most of those by only two delegates; and that the ratification of the definitive treaty, and several other matters, of great national concern, are now pending before Congress, which require the utmost despatch, and to which the assent of at least nine States is necessary." (Journals, IX. 12.) CHAPTER III. 1781-1783. OPINIONS AND EFFORTS OF WASHINGTON AND OF HAMILTON.--DECLINE OF THE CONFEDERATION. The proposal of the revenue system went forth to the country, although not in immediate connection, yet nearly at the same time, with those comprehensive and weighty counsels which Washington addressed to the States, when the great object for which he had entered the service of his country had been accomplished, and he was about to return to a private station. His relations to the people of this country had been peculiar. He had been, not only the leader of their armies, but, in a great degree, their civil counsellor; for although he had rarely, if ever, gone out of the province of his command to give shape or direction to constitutional changes, yet the whole circumstances of that command had constantly placed him in contact with the governments of the States, as well as with the Congress; and he had often been obliged to interpose the influence of his own character and opinions with all of them, in order that the civil machine might not wholly cease to move. At the moment when he was about to lay aside the sword, he saw very clearly that there were certain principles of conduct which must be called into action in the States, and among the people of the States, for the preservation of the Union. He, and he alone, could address to them with effect the requisite words of admonition, and point out the course of safety and success. This great service, the last act of his revolutionary official life, was performed with all the truth and wisdom of his character, before he proceeded to resign into the hands of Congress the power which he had held so long, and which he now surrendered with a virtue, a dignity, and a sincerity, with which no such power has ever been laid down by any of the leaders of revolutions whom the world has seen. His object in this Address was not so much to urge the adoption of particular measures, as to inculcate principles which he believed to be essential to the welfare of the country. So clearly, however, did it appear to him, that the honor and independence of the country were involved in the adoption of the revenue system which Congress had recommended, that he did not refrain from urging it as the sole means by which a national bankruptcy could be averted, before any different plan could be proposed and adopted. But how far, at this time, any other or further plans, for the formation of a better constitution, had been formed, or how far any one perceived both the vicious principle of the Confederation and the means of substituting for it another and more efficient power, we can judge only by the published writings of the Revolutionary statesmen. It is quite certain that at this period Washington saw the defects of the Confederation, as he had seen them clearly, and suffered under them, from the beginning. He saw that in the powers of the States, which far exceeded those of the Continental Congress, lay the source of all the perplexities which he had experienced in the course of the war, and of almost the whole of the difficulties and distresses of the army; and that to form a new constitution, which would give consistency, stability, and dignity to the Union, was the great problem of the time. He saw, also, that the honor and true interest of this country were involved in the development of continental power; that local and State politics were destined to interfere with the establishment of any more liberal and extensive plan of government, which the circumstances of the country required, as they had perpetually weakened the bond by which the Union had thus far been held together; and that such local influences would make these States the sport of European policy. He predicted, moreover, that the country would reach, if it reached at all, some system of sufficient capabilities, only through mistakes and disasters, and through an experience purchased at the price of further difficulties and distress. Such were his general views, at the close of the war.[189] But there was one man in the country who had looked more deeply still into its wants, and who had formed in his enlarged and comprehensive mind the clearest views of the means necessary to meet them, even before the Confederation had been practically tried. A reorganization of the government had engaged the attention of Hamilton, as early as 1780; and, with his characteristic penetration and power, he saw and suggested what should be the remedy. He entertained the opinion, at this time, as he had always entertained it, that the discretionary powers originally vested in Congress for the safety of the States, and implied in the circumstances and objects of their assembling, were fully competent to the public exigencies. But their practice, from the time of the Declaration of Independence through all the period that preceded the establishment of the Confederation, had accustomed the country to doubts of their original authority, and had at last amounted to a surrender of the ground from which they might have exercised it. No remedy, therefore, remained, applicable to the circumstances, and capable of rescuing the affairs of the country from their deplorable situation, but to vest in Congress, expressly and by a direct grant, the powers necessary to constitute an efficient government and a solid, coercive union. The project then before the country, in the Articles of Confederation, had been designed to accomplish what the revolutionary government had failed to do. But it was manifestly destined to fail in its turn; for it left an uncontrollable sovereignty in the States, capable of defeating the beneficial exercise of the very powers which it undertook to confer upon Congress. It made the army, not a unit, formed and organized by a central and supreme authority, and looking up to that authority alone, but a collection of several armies, raised by the several States. It gave to the State legislatures the effective power of the purse, by withholding all certain revenues from Congress. It proposed to introduce no method and energy of administration; and without an executive, it left every detail of government to be managed by a deliberative body, whose constitution rendered it fit for none but legislative functions. Under these circumstances, it was Hamilton's advice, before the Confederation took effect, that Congress should plainly, frankly, and unanimously confess to the States their inability to carry on the contest with Great Britain, without more ample powers than those which they had for some time exercised, or those which they could exercise under the Confederation; and that a convention of all the States be immediately assembled, with full authority to agree upon a different system. He suggested that a complete sovereignty should be vested in Congress, except as to that part of internal police which relates to the rights of property and life among individuals, and to raising money by internal taxes, which he admitted should be regulated by the State legislatures. But in all that relates to war, peace, trade, and finance, he maintained that the sovereignty of Congress should be complete; that it should have the entire management of foreign affairs, and of raising and officering armies and navies; that it should have the entire regulation of trade, determining with what countries it should be carried on, laying prohibitions and duties, and granting bounties and premiums; that it should have certain perpetual revenues of an internal character, in specific taxes; that it should be authorized to institute admiralty courts, coin money, establish banks, appropriate funds, and make alliances offensive and defensive, and treaties of commerce. He recommended also that Congress should immediately organize executive departments of foreign affairs, war, marine, finance, and trade, with great officers of state at the head of each of them.[190] Hamilton's entry into Congress in 1782 marks the commencement of his public efforts to develop the idea of a general government, whose organs should act directly, and without the intervention of any State machinery. He first publicly propounded this idea in the paper which he prepared, as chairman of a committee, to be addressed to the legislature of Rhode Island, in answer to the objections of that State to the revenue system proposed in 1781. One of these objections was, that the plan proposed to introduce into the State officers unknown and unaccountable to the State itself, and therefore that it was against its constitution. From the prevalence of this notion, we may see how difficult it was to create the idea of a national sovereignty, that would consist with the sovereignty of the States, and would work in its appropriate sphere harmoniously with the State institutions, because directed to a different class of objects. The nature of a federal constitution was little understood. It was apparent that the exercise of its powers must affect the internal police of its component members, to some extent; but it was not well understood that political sovereignty is capable of partition, according to the character of its subjects, so that powers of one class may be imparted to a federal, and powers of another class remain in a State constitution, without destroying the sovereignty of the latter. Hamilton presented this view, and at the same time pointed out, that, unless the constitution of a State expressly prohibited its legislature from granting to the federal government new power to appoint officers for a special purpose, to act within the State itself, it was competent to the legislative authority of the State to communicate such power, just as it was competent to it originally to enter into the Confederation.[191] In the same paper, also, he urged the necessity of vesting the appointment of the collectors of the proposed revenue in the general government, because it was designed as a security to creditors, and must therefore be general in its principle and dependent on a single will, and not on thirteen different authorities. This was the earliest suggestion of the principle, that, in exercising its powers, the federal government ought to act directly, through agents of its own appointment, and thus be independent of State negligence or control. When the debate came on in January, 1783, upon the new project of a revenue system, he again urged the necessity of strengthening the federal government, through the influence of officers deriving their appointments directly from Congress;--a suggestion that was received at the moment with pleasure by the opponents of the scheme, because it seemed to disclose a motive calculated to touch the jealousy rather than to propitiate the favor of the States. But the temporary expedients of the moment always pass away. The great ideas of a statesman like Hamilton, earnestly bent on the discovery and inculcation of truth, do not pass away. Wiser than those by whom he was surrounded, with a deeper knowledge of the science of government and the wants of the country than all of them, and constantly enunciating principles which extended far beyond the temporizing policy of the hour, the smiles of his opponents only prove to posterity how far he was in advance of them.[192] The efforts of Hamilton to effect a change in the rule of the Confederation, as to the ratio of contribution by the States to the treasury of the Union, also evince both the defects of the existing government and the foresight with which he would have obviated them, if he could have been sustained. The rule of the Confederation required that the general treasury should be supplied by the several States in proportion to the value of all lands within each State, granted or surveyed, with the buildings and improvements thereon, to be estimated according to such mode as Congress should from time to time direct and appoint; the taxes for paying such proportion to be laid and levied by the State legislatures, within the time fixed by Congress. But Congress had never appointed any mode of ascertaining the valuation of lands within the States. The first requisition called for after the Confederation took effect was apportioned among the several States without any valuation,--provision being made by which each State was to receive interest on its payments, as far as they exceeded what might afterwards be ascertained to be its just proportion, when the valuation should have been made.[193] At the outset, therefore, a practical inequality was established, which gave rise to complaints and jealousies between the States, and increased the disposition to withhold compliance with the requisitions. The dangerous crisis in the internal affairs of the country which attended the approach of peace, had arrived in the winter and spring of 1783, and nothing had ever been done to carry out the rule of the Confederation, by fixing upon a mode of valuation. When the discussion of the new measures for sustaining the public credit came on, three courses presented themselves, with regard to this part of the subject;--either, first, to change the principle of the Confederation entirely; or, secondly, to carry it out by fixing a mode of valuation, at once; or, thirdly, to postpone the attempt to carry it out, until a better mode could be devised than the existing state of the country then permitted. Hamilton's preference was for the first of these courses, as the one that admitted of the application of those principles of government which he was endeavoring to introduce into the federal system; for he saw that in the theory of the Confederation there was an inherent inequality, which would constantly increase in practice, and which must either be removed, or destroy the Union. He maintained, that, where there are considerable differences in the relative wealth of different communities, the proportion of those differences can never be ascertained by any common measure; that the actual wealth of a country, or its ability to pay taxes, depends on an endless variety of circumstances, physical and moral, and cannot be measured by any one general representative, as _land_, or _numbers_; and therefore that the assumption of such a general representative, by whatever mode its local value might be ascertained, would work inevitable inequality. In his view, the only possible way of making the States contribute to the general treasury in an equal proportion to their means, was by general taxes imposed under continental authority; and it is a striking proof of the comprehensive sagacity with which he looked forward, that, while he admitted that this mode would, for a time, produce material inequalities, he foresaw that balancing of interests which would arise in a continental legislation, and would relieve the hardships of one tax in a particular State by the lighter pressure of another bearing with proportional weight in some other part of the Confederacy.[194] Accordingly, after an attempt to postpone the consideration of a mode of carrying out the Confederation, he made an effort to have its principle changed, by substituting specific taxes on land and houses, to be collected and appropriated, as well as the duties, under the authority of the United States, by officers to be nominated by Congress, and approved by the State in which they were to exercise their functions, but accountable to and removable by Congress.[195] These ideas, however, as he himself saw, were not agreeable to the spirit of the times, and his plan was rejected. After many fruitless projects had been suggested and discussed, for making the valuation required by the Confederation,--some of them proposing that it should be done by commissioners appointed by the United States, and some by commissioners appointed by the States,--it was determined to propose no other change in the principle of making requisitions on the States, than to substitute population in the place of land, as the rule of proportion.[196] Equally extensive and important were his views on the subject of a peace establishment, for which he saw the necessity of providing, as the time approached when the Confederation would necessarily be tested as a government for the purposes of peace. To adapt a constitution, whose principal powers were originally designed to be exercised in a state of war, to a state of peace, for which it possessed but few powers, and those not clearly defined, was a problem in the science of government of a novel character. It might prove to be an impossible task; for on applying the constitutional provisions to the real wants and necessities of the country, it might turn out that the Confederation was in some respects destitute of the capacity to provide for them; and in undertaking to carry out its actual and sufficient powers, which had never hitherto been exercised, opposition might spring up, from State jealousy and local policy, which, in the real weakness of the federal government, would be as effectual a barrier as the want of constitutional authority. Still the effort was to be made; and Hamilton approached the subject with all the sagacity and statesmanship for which he was so distinguished. He saw that the Confederation contained provisions which looked to the continuance of the Union after the war had terminated, and that these provisions required practical application, through a machinery which had never been even framed. The Articles of Confederation vested in Congress the exclusive management of foreign relations; but the department of foreign affairs had never been properly organized. They also gave to Congress the exclusive regulation of trade and intercourse with the Indian nations; but no department of Indian affairs had been established with properly defined powers and duties. Nothing had been done to carry out the provision for fixing the standard of weights and measures throughout the United States, or to regulate the alloy and value of coin. Above all, the great question of means, military and naval, for the external and internal defence of the country during peace, for the preservation of tranquillity, the protection of commerce, the fulfilment of treaty stipulations, and the maintenance of the authority of the United States, had not been so much as touched. To regulate these important subjects was the design of a committee, at the head of which Hamilton was placed; and his earliest attention was directed to the most serious and difficult of them,--the provision for a peace establishment of military and naval forces.[197] The question whether the United States could constitutionally maintain an army and navy, in time of peace, was, under the Articles of Confederation, not free from difficulty; but it became of imminent practical importance, under the treaty of peace. That treaty provided for an immediate withdrawal of the British forces from all posts and fortifications within the United States; and it became at once an important question, whether these posts and fortifications--especially those within certain districts, the jurisdiction and property of which had not been constitutionally ascertained--should be garrisoned by troops of the United States, or of the States within which they were situated. There was also territory appertaining to the United States, not within the original claim of the United States. The whole of the Western frontier required defence. The navigation of the Mississippi and the lakes, and the rights of the fisheries and of foreign commerce, all belonging to the United States, and depending on the laws of nations and treaty stipulations, demanded the joint protection of the Union, and could not with propriety be left to the separate establishments of the States. But the Articles of Confederation contained no express provision for the establishment and maintenance of any military and naval forces during peace. They empowered the United States, generally, (and without mention of peace or war,) to build and equip a navy, and to agree upon the number of land forces to be raised, and to call upon the States to furnish their quotas. But they also declared that no vessels of war should be kept up by any State in time of peace, except such number only as should be deemed necessary by Congress for the defence of such State or its trade; and that no body of forces should be kept up by any State in time of peace, except such number only as Congress should deem requisite to garrison the posts necessary for the defence of such State. This provision might be construed to imply, that, in time of peace, the general defence was to be provided for by the forces of each State, and, in time of war, by those of the Union. But it was the opinion of Hamilton, that the restrictions on the powers of the States, with regard to maintaining forces during peace, could not with propriety be said to contain any directions to the United States, or to contravene the positive power vested in the latter to raise both sea and land forces, without mention of peace or war. He strengthened this view by the capital inconvenience of the contrary construction, and by the manifest necessities of the country, which could only be provided for by the power of the Union. If the United States could have neither army nor navy, until war had been declared, they would be obliged to begin to create both at the very moment when both were needed in actual hostilities; and, if the States were to be intrusted with the defence of the country in time of peace, that defence would be left to thirteen different armies and navies, under the direction of as many different governments.[198] He contemplated, therefore, the formation of a peace establishment, to consist of certain corps of infantry, artillery, cavalry, engineers, and dragoons;[199] a general survey, preparatory to the adoption of a general system of land fortifications; the establishment of arsenals and magazines, and the erection of founderies and manufactories of arms. He advised the establishment of ports and maritime fortifications, and the formation and construction of a navy; and his report embraced also a plan for classing and disciplining the militia.[200] In all this design, Hamilton pursued the purpose, which he had long entertained, of strengthening and consolidating the Union, and guarding against its dissolution, by providing the means necessary for its defence. Federal, rather than State provision for the defence of every part of the Confederacy, in peace as well as in war, seemed to him essential. He thought, that the general government should have exclusively the power of the sword, and that each State should have no forces but its militia.[201] But his great plans were arrested, partly in consequence of the doubts entertained on the point of constitutional power, and partly by reason of the great falling off of the attendance of members in Congress. At the very time when this important subject was under consideration, Congress were driven from Philadelphia, by the mutiny of a handful of men, whom they could not curb at the moment without the aid of the local authorities, and that aid was not promptly and efficiently given.[202] Convinced, at length, that no temporary expedients would meet the wants of the country, and that a radical reform of its constitution could alone preserve the Union from dissolution, Hamilton surveyed the Confederation in all its parts, and determined to lay before the country its deep defects, with a view to the establishment of a government with proper departments and adequate powers. In this examination, he applied to the Confederation the approved maxims of free government, which had been made familiar in the formation of the State constitutions, and which point to the distinct separation of the legislative, executive, and judicial functions. The Confederation vested all these powers in a single body, and thus violated the principles on which the government of nearly every State in the Union was founded. It had no federal judicature, to take cognizance of matters of general concern, and especially of those in which foreign nations and their subjects were concerned; and thus national treaties, the national faith, and the public tranquillity were exposed to the conflict of local regulations against the powers vested in the Union. It gave to Congress the power of ascertaining and appropriating the sums necessary for the public expenses, but withheld all control over either the imposition or collection of the taxes by which they were to be raised, and thus made the inclinations, not the abilities, of the respective States, the criterion of their contributions to the common expenses of the Union. It authorized Congress to borrow money, or emit bills, on the credit of the United States, without the power of providing funds to secure the repayment of the money, or the redemption of the bills emitted. It made no proper or competent provision for interior or exterior defence; for interior defence, because it allowed the individual States to appoint all regimental officers of the land forces, and to raise the men in their own way, while at the same time an ambiguity rendered it uncertain whether the defence of the country in time of peace was not left to the particular States, both by sea and land;--for exterior defence, because it authorized Congress to build and equip a navy, without providing any compulsory means of manning it. It failed to vest in the United States a general superintendence of trade, equally necessary both with a view to revenue and regulation. It required the assent of nine States in Congress to matters of principal importance, and of seven to all others except adjournments from day to day, and thus subjected the sense of a majority of the people of the United States to that of a minority, by putting it in the power of a small combination to defeat the most necessary measures. Finally, it vested in the federal government the sole direction of the interests of the United States in their intercourse with foreign nations, without empowering it to pass _all general laws_ in aid and support of the laws of nations; thus exposing the faith, reputation, and peace of the country to the irregular action of the particular States.[203] Having thus fully analyzed for himself the nature of the existing constitution, Hamilton proposed to himself the undertaking of inducing Congress freely and frankly to inform the country of its imperfections, which made it impossible to conduct the public affairs with honor to themselves and advantage to the Union; and to recommend to the several States to appoint a convention, with full powers to revise the Confederation, and to adopt and propose such alterations as might appear to be necessary, which should be finally approved or rejected by the States.[204] But he was surrounded by men, who were not equal to the great enterprise of guiding and enlightening public sentiment. He was in advance of the time, and far in advance of the men of the time. He experienced the fate of all statesmen, in the like position, whose ideas have had to wait the slow development of events, to bring them to the popular comprehension and assent. He saw that his plans could not be adopted; and he passed out of Congress to the pursuits of private life, recording upon them his conviction, that their public proposal would have failed for want of support.[205] There was in fact a manifest indisposition in Congress to propose any considerable change in the principle of the government. Hence, nothing but the revenue system, with a change in the rule by which a partition of the common burdens was to be made, was publicly proposed. Although this system was a great improvement upon that of the Confederation, it related simply to revenue, in regard to which it proposed a reform, not of the principle of the government, but of the mode of operation of the old system; for it embraced only a specific pledge by the States of certain duties for a limited term, and not a grant of the unlimited power of levying duties at pleasure. There was confessedly a departure from the strict maxims of national credit, by not making the revenue coextensive with its object, and by not placing its collection in every respect under the authority charged with the management and payment of the debt which it was designed to meet.[206] These relaxations were a sacrifice to the jealousies of the States; and they show that the time had not come for a change from a mere federative union to a constitutional government, founded on the popular will, and therefore acting by an energy and volition of its own. The temper of the time was wholly unfavorable to such a change. The early enthusiasm with which the nation had rushed into the conflict with England, guided by a common impulse and animated by a national spirit, had given place to calculations of local interest and advantage; and the principle of the Confederation was tenaciously adhered to, while the events which accompanied and followed the peace were rapidly displaying its radical incapacity. The formation of the State governments, and the consequent growth and importance of State interests, which came into existence with the Confederation, and the fact that the Confederation was itself an actual diminution of the previous powers of the Union, may be considered the chief causes of the decline of a national spirit. That spirit was destined to a still further decay, until the conflict of State against State, and of section against section, by shaking the government to its foundation, should reveal both the necessity for a national sovereignty and the means by which it could be called into life. As a consequence and proof of the decline of national power, it is worthy of observation, that, at the close of the year 1783, Congress had practically dwindled to a feeble junto of about twenty persons, exercising the various powers of the government, but without the dignity and safety of a local habitation. Migrating from city to city and from State to State, unable to agree upon a seat of government, from jealousy and sectional policy; now assembling in the capitol of a State, and now in the halls of a college; at all times dependent upon the protection and even the countenance of local authorities, and without the presence of any of the great and powerful minds who led the earlier counsels of the country, this body presented a not inadequate type of the decaying powers of the Union.[207] At no time in the history of the Confederation, had all the States been represented at once; and the return of peace seemed likely to reduce the entire machinery of the government to a state of complete inaction.[208] The Confederation, at the close of the war, is found to have accomplished much, and also to have failed to accomplish much more. It had effected the cession of the public lands to the United States; for although that cession was not completed until after the peace, still the arch on which the Union was ultimately to rest for whatever of safety and perpetuity remained for it through the four following years, was deposited in its place, when the Confederation was established. It had also placed the United States, as a nation, in a position to contract some alliances with foreign powers. It had finished the war; it had achieved the independence of the nation; and had given peace to the country. It had thus demonstrated the value of the Union, although its defective construction aided the development of tendencies which weakened and undermined its strength. But its imperfect performance of the great tasks to which it had been called, displayed its inherent defects. It had often been unequal to the purpose of effectually drawing forth the resources of its members for the common welfare and defence. It had often wanted an army adequate to the protection and proportioned to the abilities of the country. It had, therefore, seen important posts reduced, others imminently endangered, and whole States and large parts of others overrun by small bodies of the enemy;--had been destitute of sufficient means of feeding, clothing, paying, and appointing its troops, and had thus exposed them to sufferings for which history scarcely affords a parallel. It had been compelled to make the administration of its affairs a succession of temporary expedients, inconsistent with order, economy, energy, or a scrupulous adherence to public engagements. It found itself, at the close of the war, without any certain means of doing justice to those who had been the principal supporters of the Union;--to an army which had bravely fought, and patiently suffered,--to citizens and to foreigners, who had cheerfully lent their money,--and to others who had contributed property and personal service to the common cause. It was obliged to rely, for the last hope of doing that justice, on the precarious concurrence of thirteen distinct legislatures, the dissent of either of which might defeat the plan, and leave the States, at an early period of their existence, involved in all the disgrace and mischiefs of violated faith and national bankruptcy.[209] While, therefore, the United States emerged from the war, which for seven long years had wasted the energies and drained the resources of the people, with national independence, dark and portentous clouds gathered about the dawn of peace, as the future opened before them. The past had been crowned with victory;--dearly bought, but not at too dear a price, for it brought with it the vast boon of civil liberty. But the dangers and embarrassments through which that victory had been achieved made it apparent that the government of the country was unequal to its protection and prosperity. That government was now called to assume the great duties of peace, without the acknowledged power of maintaining either an army or a navy, and without the means of combining and directing the forces and wills of the several parts to a general end; without the least control over commerce; without the power to fulfil a treaty; without laws acting upon individuals; and with no mode of enforcing its own will, but by coercing a delinquent State to its federal obligations by force of arms. How it met the great demands upon its energy and durability which its new duties involved, we are now to inquire. FOOTNOTES: [189] Letter to Hamilton, March 31, 1783. Writings, VIII. 409. Letter to Lafayette, April 5, 1783. Ibid. 411. Address to the States, June 8, 1783. Ibid. 439. [190] These suggestions were made by Hamilton, in a letter of great ability, written in 1780, while he was still in the army, to James Duane, a member of Congress from New York. It was not published until it appeared in his Life, I. 284. At its close, he says: "I am persuaded a solid confederation, a permanent army, a reasonable prospect of subsisting it, would give us treble consideration in Europe, and produce a peace this winter. _If a convention is called, the minds of all the States and the people ought to be prepared to receive its determinations by sensible and popular writings_, which should conform to the views of Congress. There are epochs in human affairs when _novelty_ is useful. If a general opinion prevails that the old way is bad, whether true or false, and this obstructs or relaxes the operations of the public service, a change is necessary, if it be but for the sake of change. This is exactly the case now. 'T is an universal sentiment, that our present system is a bad one, and that things do not go right on this account. The measure of a convention would revive the hopes of the people, and give a new direction to their passions, which may be improved in carrying points of substantial utility. The Eastern States have already pointed out this mode to Congress: they ought to take the hint, and anticipate the others." What is here said of the action of the Eastern States probably refers, not to any suggestion of a convention to revise the powers of the general government, but to a convention of committees of the Eastern States, which first assembled at Hartford, and afterwards at Boston, in November, 1779, and in August, 1780, _for regulating the prices of commodities_. Journals of Congress, V. 406; VI. 271, 331, 392. But the writer may have had in his mind the convention which had just assembled in Massachusetts to form the constitution of that State. I am aware of no public proposal, as early as 1780, of a general convention to remodel the Confederacy. [191] "It is not to be presumed," he said, "that the constitution of any State means to define and fix the precise numbers and descriptions of all officers to be permitted in the State, excluding the creation of any new ones, whatever might be the necessity derived from that variety of circumstances incident to all political institutions. The legislature must always have a discretionary power of appointing officers, not expressly known to the constitution, and this power will include that of authorizing the federal government to make the appointments in cases where the general welfare may require it. The denial of this would prove too much; to wit, that the power given by the Confederation to Congress, to appoint all officers in the post-office, was illegal and unconstitutional. The doctrine advanced by Rhode Island would perhaps prove also that the federal government ought to have the appointment of no internal officers whatever; a position that would defeat all the provisions of the Confederation, and all the purposes of the union. The truth is, that no federal constitution can exist without powers that in their exercise effect the internal police of the component members. It is equally true, that no government can exist without a right to appoint officers for those purposes which proceed from, and concentre in, itself; and therefore the Confederation has expressly declared, that Congress shall have authority to appoint all such 'civil officers as may be necessary for managing the general affairs of the United States under their direction.' All that can be required is, that the federal government confine its appointments to such as it is empowered to make by the original act of union, or by the subsequent consent of the parties; unless there should be express words of exclusion in the constitution of a State, there can be no reason to doubt that it is within the compass of legislative discretion to communicate that authority. The propriety of doing it upon the present occasion, is founded on substantial reasons. The measure proposed is a measure of necessity. Repeated experiments have shown, that the revenue to be raised within these States is altogether inadequate to the public wants. The deficiency can only be supplied by loans. Our applications to the foreign powers on whose friendship we depend, have had a success far short of our necessities. The next resource is to borrow from individuals. These will neither be actuated by generosity nor reasons of state. 'Tis to their interest alone we must appeal. To conciliate this, we must not only stipulate a proper compensation for what they lend, but we must give security for the performance. We must pledge an ascertained fund, simple and productive in its nature, general in its principle, and at the disposal of a single will. There can be little confidence in a security under the constant revisal of thirteen different deliberatives. It must, once for all, be defined and established on the faith of the States, solemnly pledged to each other, and not revocable by any without a breach of the general compact. 'Tis by such expedients that nations whose resources are understood, whose reputations and governments are erected on the foundation of ages, are enabled to obtain a solid and extensive credit. Would it be reasonable in us to hope for more easy terms, who have so recently assumed our rank among the nations? Is it not to be expected, that individuals will be cautious in lending their money to a people in our circumstances, and that they will at least require the best security we can give? We have an enemy vigilant, intriguing, well acquainted with our defects and embarrassments. We may expect that he will make every effort to instil diffidences into individuals, and in the present posture of our internal affairs he will have too plausible ground on which to tread. Our necessities have obliged us to embrace measures, with respect to our public credit, calculated to inspire distrust. The prepossessions on this article must naturally be against us, and it is therefore indispensable we should endeavor to remove them, by such means as will be the most obvious and striking. It was with these views Congress determined on a general fund; and the one they have recommended must, upon a thorough examination, appear to have fewer inconveniences than any other. It has been remarked as an essential part of the plan, that the fund should depend on a single will. This will not be the case, unless the collection, as well as the appropriation, is under the control of the United States; for it is evident, that, after the duty is agreed upon, it may, in a great measure, be defeated by an ineffectual mode of levying it. The United States have a common interest in a uniform and equally energetic collection; and not only policy, but justice to all the parts of the Union, designates the utility of lodging the power of making it where the interest is common. Without this, it might in reality operate as a very unequal tax." Journals of Congress, VIII. 153. [192] He said, as an additional reason for the revenue being collected by officers under the appointment of Congress, that, "as the energy of the federal government was evidently short of the degree necessary for pervading and uniting the States, it was expedient to introduce the influence of officers deriving their emoluments from, and consequently interested in supporting the power of Congress." Upon this Mr. Madison observes: "This remark was imprudent, and injurious to the cause it was intended to serve. This influence was the very source of jealousy which rendered the States averse to a revenue under collection, as well as appropriation, of Congress. All the members of Congress who concurred in any degree, with the States in this jealousy, smiled at the disclosure. Mr. Bland, and still more Mr. Lee, who were of this number, took notice, in private conversation, that Mr. Hamilton had let out the secret." Elliot's Debates, I. 35. [193] March 18 and 23, 1781. Journals, VII. 56, 67. [194] Life of Hamilton, II. 50-57. [195] March 20, 1783. Journals, VIII. 157-159. [196] The census was to be of "the whole number of white and other free citizens and inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes, in each State; which number shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint." When the Articles of Confederation were framed and adopted in Congress, a valuation of land as the rule of proportion was adopted instead of numbers of inhabitants, in consequence of the impossibility of compromising the different ideas of the Eastern and Southern States as to the rate at which slaves should be counted; the Eastern States of course wishing to have them counted in a near ratio to the whites, and the Southern States wishing to diminish that ratio. Numbers would have been preferred by the Southern States to land, if half their slaves only could have been taken; but the Eastern States were opposed to this estimate. (Elliot's Debates, I. 79.) In 1783, when it was proposed to change the rule of proportion from land to numbers, the first compromise suggested (by Mr. Wolcott of Connecticut) was to include only such slaves as were between the ages of sixteen and sixty; this was found to be impracticable; and it was agreed on all sides, that, instead of fixing the proportion by ages, it would be best to fix it in absolute numbers, and the rate of three fifths was agreed upon. (Ibid. 81, 82.) [197] Life of Hamilton, II. 204-212. [198] Ibid. [199] He proposed that the States should transfer to Congress the right to appoint the regimental officers, and that the men should be enlisted under continental direction. [200] That the subject of a peace establishment originated with Hamilton is certain, from the fact that early in April, soon after the appointment of the committee, he wrote to General Washington, wishing to know his sentiments at large on such institutions of every kind for the interior defence of the States as might be best adapted to their circumstances. (Writings of Washington, VIII. 417.) Washington wrote to all the principal officers of the army then in camp, for their views, and from the memoirs which they presented to him an important document was compiled, which was forwarded by him to the committee of Congress. In one of these memoirs Colonel Pickering suggested the establishment of a military academy at West Point. "If any thing," he said, "like a military academy in America be practicable at this time, it must be grounded on the permanent military establishment of our frontier posts and arsenals, and the wants of the States, separately, of officers to command the defences of their sea-coasts. On this principle, it might be expedient to establish a military school, or academy, at West Point. And that a competent number of young gentlemen might be induced to become students, it might be made a rule, that vacancies in the standing regiments should be supplied from thence; those few instances excepted where it would be just to promote a very meritorious sergeant. For this end, the number which shall be judged requisite to supply vacancies in the standing regiment might be fixed, and that of the students, who are admitted with an exception of filling them, limited accordingly. They might be allowed subsistence at the public expense. If any other youth desired to pursue the same studies at the military academy, they might be admitted, only subsisting themselves. Those students should be instructed in what is usually called military discipline, tactics, and the theory and practice of fortification and gunnery. The commandant and one or two other officers of the standing regiment, and the engineers, making West Point their general residence, would be the masters of the academy; and the inspector-general superintend the whole." (Ibid.) The subject of a peace establishment was made one of the four principal topics on which Washington afterwards enlarged in his circular letter to the States, in June; but his suggestions related chiefly to a uniform organization of the militia throughout the States. He subsequently had several conferences with the committee of Congress, on the whole subject, but nothing was done. (Vide note, infra.) [201] Life of Hamilton, II. 214-219. The State of New York precipitated the constitutional question, by demanding that the Western posts within her limits should be garrisoned by troops of her own, and by instructing her delegates in Congress to obtain a declaration, conformably to the sixth article of the Confederation, of the number of troops necessary for that purpose. Hamilton forbore to press this application while the general subject of a peace establishment was under consideration. But the doubts that arose as to the constitutional power of Congress to raise an army for the purposes of peace, and the urgency of the case, made it necessary to adopt a temporary measure with regard to the frontier posts, and to direct the commander-in-chief to garrison them with a part of the troops of the United States which had enlisted for three years. This was ordered on the 12th of May. Soon after, the mutiny of a portion of the new levies of the Pennsylvania line occurred, which drove Congress from Philadelphia to Princeton, on the 21st of June. At Princeton, they remained during the residue of the year, but with diminished numbers and often without a constitutional quorum of States. In September, General Washington wrote to Governor Clinton: "Congress have come to no determination yet respecting a peace establishment, nor am I able to say when they will. I have lately had a conference with a committee on this subject, and have reiterated my former opinions: but it appears to me, that there is not a sufficient representation to discuss great national points; nor do I believe there will be, while that honorable body continue their sessions at this place. The want of accommodation, added to a disinclination in the Southern delegates to be farther removed than they formerly were from the centre of the empire, and an aversion in the others to give up what they conceive to be a point gained by the late retreat to this place, keep matters in an awkward situation, to the very great interruption of national concerns. Seven States, it seems, by the Articles of Confederation, must agree, before any place can be fixed upon for the seat of the federal government; and seven States, it is said, never will agree; consequently, as Congress came here, here they are to remain, to the dissatisfaction of the majority and a great let to business, having none of the public offices about them, nor any place to accommodate them, if they were brought up; and the members, from this or some other cause, are eternally absent." [202] Mr. Madison has given the following account of this occurrence:--"On the 19th of June, Congress received information from the Executive Council of Pennsylvania, that eighty soldiers, who would probably be followed by others, were on the way from Lancaster to Philadelphia, in spite of the expostulations of their officers, declaring that they would proceed to the seat of Congress and demand justice, and intimating designs against the Bank. A committee, of which Colonel Hamilton was chairman, was appointed to confer with the executive of Pennsylvania, and to take such measures as they should find necessary. After a conference, the committee reported that it was the opinion of the executive that the militia of Philadelphia would probably not be willing to take arms before they should be provoked by some actual outrage; that it would hazard the authority of government to make the attempt; and that it would be necessary to let the soldiers come into the city, if the officers who had gone out to meet them could not stop them. The next day the soldiers arrived in the city, led by their sergeants, and professing to have no other object than to obtain a settlement of accounts, which they supposed they had a better chance for at Philadelphia than at Lancaster. On the 21st, they were drawn up in the street before the State-House, where Congress were assembled. The Executive Council of the State, sitting under the same roof, was called on for the proper interposition. The President of the State (Dickinson) came in and explained the difficulty of bringing out the militia of the place for the suppression of the mutiny. He thought that, without some outrages on persons or property, the militia could not be relied on. General St. Clair, then in Philadelphia, was sent for, and desired to use his interposition, in order to prevail on the troops to return to the barracks. But his report gave no encouragement. In this posture of things, it was proposed by Mr. Izard that Congress should adjourn. Colonel Hamilton proposed that General St. Clair, in concert with the Executive Council of the State, should take order for terminating the mutiny. Mr. Reed moved that the General should endeavor to withdraw the mutineers, by assuring them of the disposition of Congress to do them justice. Nothing, however, was done. The soldiers remained in their position, occasionally uttering offensive words and pointing their muskets at the windows of the hall of Congress. At the usual hour of adjournment the members went out, without obstruction; and the soldiers retired to their barracks. In the evening Congress reassembled, and appointed a committee to confer anew with the executive of the State. This conference produced nothing but a repetition of the doubts concerning the disposition of the militia to act, unless some actual outrage were offered to persons or property, the insult to Congress not being deemed a sufficient provocation. On the 24th, the efforts of the State authority being despaired of, Congress were summoned by the President to meet at Trenton." (Elliot's Debates, I. 92-94.) The mutiny was afterwards suppressed by marching troops into Pennsylvania under Major-General Howe. (Journals, VIII. 281.) [203] Life of Hamilton, II. 230-237. [204] Life of Hamilton, II. 230-237. [205] Ibid. [206] See the Address to the States, accompanying the proposed revenue system, April 26, 1783, from the pen of Mr. Madison. Journals, VIII. 194-201. [207] The first Continental Congress was called to meet at Philadelphia, that being the nearest to the centre of the Union of any of the principal cities in the United States. Succeeding Congresses had been held there, with the exception of the period when the city was in the possession of the enemy, in the year 1777, until, on the 21st of June, 1783, in consequence of the mutiny of the soldiers, the President was authorized to summon the members to meet at Trenton, or Princeton, in New Jersey, "in order that further and more effectual measures may be taken for suppressing the present revolt, and maintaining the dignity and authority of the United States." On the 30th, Congress assembled at Princeton, in the halls of the college, which were tendered by its officers for their use. In August, a proposition was made to return to Philadelphia, and that, on the second Monday in October, Congress should meet at Annapolis, unless in the mean time it had been ordered otherwise. But this was not agreed to. A committee was then appointed (in September), "to consider what jurisdiction may be proper for Congress in the place of their permanent residence." This seems to have been followed by propositions from several of the States, from New York to Virginia inclusive, respecting a place for the permanent residence of Congress, although the Journal does not state what they were. A question was then taken (October 6), in which State buildings should be provided and erected for the residence of Congress, beginning with New Hampshire and proceeding with all the States in their order. Each State was negatived in its turn. The highest number of votes given (by States) were for New Jersey and Maryland, which had four votes each. A resolution was then carried, "that buildings for the use of Congress be erected on or near the banks of the Delaware, provided a suitable district can be procured on or near the banks of said river, for a federal town; and that the right of soil, and an exclusive or such jurisdiction as Congress may direct, shall be vested in the United States"; and a committee was appointed, to repair to the falls of the Delaware, to view the country, and report a proper district for this purpose. A variety of motions then followed, for the selection of a place of temporary residence, but none was adopted. On the 17th of October, a proposition was made by a delegate of Massachusetts (Mr. Gerry), to have buildings provided for the alternate residence of Congress in two places, with the idea of "securing the mutual confidence and affection of the States, and preserving the federal balance of power"; but the question was lost. Afterwards, the following resolution was agreed to: "Whereas, there is reason to expect that the providing buildings for the alternate residence of Congress in two places will be productive of the most salutary effects, by securing the mutual confidence and affections of the States, _Resolved_, That buildings be likewise erected, for the use of Congress, at or near the lower falls of the Potomac, or Georgetown, provided a suitable district on the banks of the river can be procured for a federal town, and the right of soil, and an exclusive jurisdiction, or such as Congress may direct, shall be vested in the United States; and that until the buildings to be erected on the banks of the Delaware and Potomac shall be prepared for the reception of Congress, their residence shall be alternately, at equal periods of not more than one year and not less than six months, in Trenton and Annapolis; and the President is hereby authorized and directed to adjourn Congress on the twelfth day of November next, to meet at Annapolis on the twenty-sixth day of the same month, for the despatch of public business." (Journals of Congress from June to November, 1783.) [208] Report of a committee appointed to devise means for procuring a full representation in Congress, made November 1, 1783. Journals, VIII. 480-482. [209] Hamilton's proposed Resolutions; Life, II. 230-237. BOOK III. THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE PEACE OF 1783 TO THE FEDERAL CONVENTION OF 1787. CHAPTER I. JANUARY, 1784-MAY, 1787. DUTIES AND NECESSITIES OF CONGRESS.--REQUISITIONS ON THE STATES.--REVENUE SYSTEM OF 1783. The period which now claims our attention is that extending from the Peace of 1783 to the calling of the Convention which framed the Constitution, in 1787. It was a period full of dangers and difficulties. The destinies of the Union seemed to be left to all the hazards arising from a defective government and the illiberal and contracted policy of its members. Patriotism was generally thought to consist in adhesion to State interests, and a reluctance to intrust power to the organs of the nation. The national obligations were therefore disregarded; treaty stipulations remained unfulfilled; the great duty of justice failed to be discharged; rebellion raised a dangerous and nearly successful front; and the commerce of the country was exposed to the injurious policy of other nations, with no means of counteracting or escaping from its effects. At length, the people of the United States began to see danger after they had felt it, and the growth of sounder views and higher principles of public conduct gave to the friends of order, public faith, and national security a controlling influence in the country, and enabled the men, who had won for it the blessings of liberty, to establish for it a durable and sufficient government. Four years only elapsed, between the return of peace and the downfall of a government which had been framed with the hope and promise of perpetual duration;--an interval of time no longer than that during which the people of the United States are now accustomed to witness a change of their rulers, without injury to any principle or any form of their institutions. But this brief interval was full of suffering and peril. There are scarcely any evils or dangers, of a political nature, and springing from political and social causes, to which a free people can be exposed, which the people of the United States did not experience during this period. That these evils and dangers did not precipitate the country into civil war, and that the great undertaking of forming a new and constitutional government, by delegates of the people, could be entered upon and prosecuted, with the calmness, conciliation, and concession essential to its success, is owing partly to the fact that the country had scarcely recovered from the exhausting effects of the Revolutionary struggle; but mainly to the existence of a body of statesmen, formed during that struggle, and fitted by hard experience to build up the government. But before their efforts and their influences are explained, the period which developed the necessity for their interposition must be described. He who would know what the Constitution of the United States was designed to accomplish, must understand the circumstances out of which it arose. On the 3d of November, 1783, a new Congress, according to annual custom, was assembled at Annapolis, and attended by only fifteen members, from seven States. Two great acts awaited the attention of this assembly;--both of an interesting and important character, both of national concern. The one was the resignation of Washington; a solemnity which appealed to every feeling of national gratitude and pride, and which would seem to have demanded whatever of pomp and dignity and power the United States could display. The other was a legislative act, which was to give peace to the country, by the ratification of the Treaty. Several weeks passed on, and yet the attendance was not much increased. Washington's resignation was received, at a public audience of seven States, represented by about twenty delegates;[210] and on the same day letters were despatched to the other States, urging them, for the safety, honor, and good faith of the United States, to require the immediate attendance of their members.[211] It was not, however, until the 14th of January that the Treaty could be ratified by the constitutional number of nine States; and, when this took place, there were present but three-and-twenty members.[212] It should undoubtedly be considered, that, from the nature and form of the government, the delegates in Congress had in some sense an ambassadorial character, and were assembled as the representatives of sovereign States. But with whatever dignity, real or fictitious, they may be considered as having been clothed, the government itself was one that created a constant tendency to the neglect of its functions, and therefore produced great practical evils. The Articles of Confederation provided that delegates should be annually appointed by the States, to meet in Congress on the first Monday in November in every year; and although they also gave to Congress the power of adjournment for a recess, during which the government was to be devolved on a Committee of the States, they fixed no period for the termination of a session. While the war lasted, it had been both customary and necessary for the old Congress, and for its successors under the Confederation, to be perpetually in session; and this practice was continued after the peace, with very short intervals of Committees of the States, partly from habit, and partly in consequence of the reduction of the delegations to the lowest constitutional number. This rendered despatch impossible, by putting it in the power of a few members to withhold from important matters the constitutional concurrence of nine States. Without any reference to population by the Articles of Confederation, not less than two nor more than seven delegates were allowed to each State; and by casting the burden of maintaining its own delegates upon each State, they created a strong motive for preferring the smaller number, and often for not being represented at all. This motive became more active after the peace, when the immediate stimulus of hostilities was withdrawn; and it was at the same time accompanied, in most of the States, by a great jealousy of the powers of Congress, a disinclination to enlarge them, and a prevalent feeling that each State was sufficient unto itself for all the purposes of government.[213] The consequence was, that the Congress of the Confederation, from the ratification of the Treaty of Peace to the adoption of the Constitution, although entitled to ninety-one members, was seldom attended by one third of that number; and the state of the representation was sometimes so low, that one eighth of the whole number present could, under the constitutional rule, negative the most important measures.[214] Such was the government which was now called to provide for the payment of at least the interest on the public debts, and to procure the means for its own support; to carry out the Treaty of Peace, and secure to the country its advantages; to complete the cessions of the Western lands, and provide for their settlement and government; to guard the commerce of the country against the hostile policy of other nations; to secure to each State the forms and principles of a republican government; to extend and secure the relations of the country with foreign powers; and to preserve and perpetuate the Union. By tracing the history of its efforts and its failures with regard to these great objects, we may understand the principal causes which brought about the conviction on the part of the people of the United States, that another and a stronger government must take the place of the Confederation. It was ascertained in April, 1784, that a sum exceeding three millions of dollars would be wanted to pay the arrears of interest, and to meet the interest and current expenses of the public service for the year.[215] Two sources only could be looked to for this supply. It must either be obtained by requisitions on the States, according to the old rule of the Confederation, or from the new duties and taxes proposed by the revenue system of 1783. But that proposal was still under the consideration of the State legislatures; some of them having as yet acceded to the impost only, and others having decided neither on the impost nor on the supplementary taxes. Some time must therefore elapse before the final confirmation of this system, even if its final confirmation were probable; and, after it should have been confirmed, further time would be requisite to bring it into operation. It was quite clear, therefore, that other measures must be resorted to. Requisitions presented the sole resource. But in what mode were they to be made? The preceding Congress had offered two recommendations to the States on the subject of the rule of the Confederation, which directed that the quotas of the several States should be apportioned according to the value of their lands. The Congress of 1783, in order to give this rule a fair trial, had recommended to the States to make returns of their lands, buildings, and inhabitants;[216] but, apprehending that the insufficiency of the rule would immediately show itself, they had followed this recommendation with another, to change the basis of contribution from land to numbers of inhabitants.[217] Both of these propositions were still under the consideration of the State legislatures, and four States only had acceded to them.[218] A new requisition, therefore, if made at all, must be made under the old rule of the Confederation, and with entirely imperfect means of making it with justice and equality. It was found, however, that large arrears were still due from the States, of the old requisitions made during the war.[219] A new call upon them to pay one half of these arrears, deducting therefrom the amount of their payments to the close of the year, would, if complied with, produce a sum nearly sufficient for the wants of the government. This resource was accordingly tried.[220] In the year 1785, three millions, it was ascertained, would be required for the service of the year. A renewed call was made for the remaining unpaid moiety of the old requisition of eight millions, and for the whole of the old requisition of two millions; but, considering that the public faith required Congress to continue their annual demand for money, they issued a new requisition for three millions, and adjusted it according to the best information they could obtain.[221] In the year 1786, a sum of more than three millions was wanted for the current demands on the treasury, and a new requisition was made for it, under the old rule of the Confederation.[222] Two of the States, Rhode Island and New Jersey, thereupon passed acts, making their own paper currency receivable on all arrears of taxes due to the United States, and proposing to pay their quotas in such currency.[223] But the entire inadequacy of this source of supply to maintain the federal government, and to discharge the annual public engagements, had now become but too apparent. From the 1st of November, 1781, to the 1st of January, 1786, less than two and a half millions of dollars had been received from requisitions made during that period, amounting to more than ten millions.[224] For the last fourteen months of that interval, the average receipts from requisitions amounted to less than four hundred thousand dollars per annum, while the interest alone due on the foreign debt was more than half a million; and, in the course of each of the nine following years, the average sum of one million, annually, would become due by instalments on the principal of that debt.[225] In addition to this, the interest on the domestic debt; the security of the navigation and commerce of the country against the Barbary powers; the immediate protection of the people dwelling on the frontier from the savages; the establishment of military magazines in different parts of the Union, quite indispensable to the public safety; the maintenance of the federal government at home, and the support of the public servants abroad,--each and all depended upon the contribution of the States under the annual requisitions, and were each and all likely to be involved in a common failure and ruin.[226] There can be no doubt that the continuance of the practice of making requisitions, after the proposal of the revenue system of 1783, had some tendency to prevent the adoption of that system by the States. But there was no other alternative within the constitutional reach of Congress; and in the mean time, the revenue system, submitted as it necessarily was to the legislatures of thirteen different States, was, as far as it was assented to, embarrassed with the most discordant and irreconcilable provisions. It was ascertained in February, 1786, that seven of the States had granted the impost part of the system, in such a manner, that, if the other six States had made similar grants, the plan of the general impost might have been immediately put into operation.[227] Two of the other States had also granted the impost, but had embarrassed their grants with provisos, which suspended their operation until all the other States should have passed laws in full conformity with the whole system.[228] Two other States had fully acceded to the system in all its parts;[229] but four others had not decided in favor of any part of it.[230] No member of the Confederacy had, at this time, suggested to Congress any reasonable objection to the principles of the system; and the contradictory provisions by which their assent to it had been clogged, present a striking proof of the inherent difficulties of obtaining any important constitutional change from the legislatures of the States. The government was founded upon a principle, by which all its powers were derived from the States in their corporate capacities; in other words, it was a government created by, and deriving its authority from, the governments of the States. They alone could change the fundamental law of its organization; and they were actuated by such motives and jealousies, as rendered a unanimous assent to any change a great improbability. Still, the Congress of 1786 hoped that, by a clear and explicit declaration of the true position of the country, the requisite compliance of the States might be obtained. They accordingly made known, in the most solemn manner, the public embarrassments, and declared that the crisis had arrived, when the people of the United States must decide whether they were to continue to rank as a nation, by maintaining the public faith at home and abroad; or whether, for want of timely exertion in establishing a general revenue, they would hazard the existence of the Union, and the great national privileges which they had fought to obtain.[231] Under the influence of this urgent representation, all the States, except New York, passed acts granting the impost, and vesting the power to collect it in Congress, pursuant to the recommendations of 1783, but upon the condition that it should not be in force until all the States had granted it in the same manner. The State of New York passed an act[232], reserving to itself the sole power of levying and collecting the impost; making the collectors amenable to and removable by the State, and not by Congress; and making the duties receivable in specie or bills of credit, at the option of the importer. Such a departure from the plan suggested by Congress, and adopted by the other States, of course made the whole system inoperative in the other States, and there remained no possibility of procuring its adoption, but by inducing the State of New York to reconsider its determination. All hope of meeting the public engagements, and of carrying on the government, now turned upon the action of a single State. The principal argument made use of, by those who supported the conduct of New York, was, that Congress, being a single body, might misapply the money arising from the duties. An answer to this pretence, from the pen of Hamilton, declared that the interests and liberties of the people were not less safe in the hands of those whom they had delegated to represent them for one year in Congress, than they were in the hands of those whom they had delegated to represent them for one or four years in the legislature of the State; that all government implies trust, and that every government must be trusted so far as it is necessary to enable it to attain the ends for which it is instituted, without which insult and oppression from abroad, and confusion and convulsion at home, must ensue[233]. The real motive, however, with those who ruled the counsels of New York at this period, was a hope of the commercial aggrandizement of the State; and the jealousies and fears of national power, which were widely prevalent, were diligently employed to defeat the system proposed by Congress. After the passage of the act of New York, and the adjournment of the legislature, Congress earnestly recommended to the executive of that State to convene the legislature again, to take into its consideration the recommendation of the revenue system, for the purpose of granting the impost to the United States, in conformity with the grants of other States, so as to enable the United States to carry it into immediate effect[234]. The Governor declined to accede to this recommendation.[235] Congress repeated it, declaring that the critical and embarrassed state of the finances required that the impost should be carried into immediate operation, and expressing their opinion, that the occasion was sufficiently important and extraordinary for them to request that the legislature should be specially convened.[236] The executive of New York again refused the request of Congress, and the fate of the impost system remained suspended until the meeting of the legislature, at its regular session in January, 1787. It was never adopted by that State, and consequently never took effect. FOOTNOTES: [210] The Journals give the following account of General Washington's resignation:-- "According to order, his Excellency the Commander-in-chief was admitted to a public audience, and being seated, the President, after a pause, informed him that the United States in Congress assembled were prepared to receive his communications; whereupon he arose and addressed as follows: 'MR. PRESIDENT,--The great events on which my resignation depended having at length taken place, I have now the honor of offering my sincere congratulations to Congress, and of presenting myself before them to surrender into their hands the trust committed to me, and to claim the indulgence of retiring from the service of my country. Happy in the confirmation of our independence and sovereignty, and pleased with the opportunity afforded the United States of becoming a respectable nation, I resign with satisfaction the appointment I accepted with diffidence; a diffidence in my abilities to accomplish so arduous a task; which, however, was superseded by a confidence in the rectitude of our cause, the support of the supreme power of the Union, and the patronage of Heaven. The successful termination of the war has verified the most sanguine expectations; and my gratitude for the interposition of Providence, and the assistance I have received from my countrymen, increases with every review of the momentous contest. While I repeat my obligations to the army in general, I should do injustice to my own feelings not to acknowledge, in this place, the peculiar services and distinguished merits of the gentlemen who have been attached to my person during the war. It was impossible the choice of confidential officers to compose my family should have been more fortunate. Permit me, sir, to recommend in particular those who have continued in the service to the present moment, as worthy of the favorable notice and patronage of Congress. I consider it an indispensable duty to close this last act of my official life by commending the interests of our dearest country to the protection of Almighty God, and those who have the superintendence of them to his holy keeping. Having now finished the work assigned me, I retire from the great theatre of action, and, bidding an affectionate farewell to this august body, under whose orders I have so long acted, I here offer my commission, and take my leave of all the employments of public life.' He then advanced and delivered to the President his commission, with a copy of his address, and having resumed his place, the President (Thomas Mifflin) returned him the following answer: 'SIR,--The United States in Congress assembled receive with emotions too affecting for utterance the solemn resignation of the authorities under which you have led their troops with success through a perilous and doubtful war. Called upon by your country to defend its invaded rights, you accepted the sacred charge, before it had formed alliances, and whilst it was without funds or a government to support you. You have conducted the great military contest with wisdom and fortitude, invariably regarding the rights of the civil power through all disasters and changes. You have, by the love and confidence of your fellow-citizens, enabled them to display their martial genius, and transmit their fame to posterity. You have persevered, till these United States, aided by a magnanimous king and nation, have been enabled, under a just Providence, to close the war in freedom, safety, and independence; on which happy event we sincerely join you in congratulations. Having defended the standard of liberty in this New World, having taught a lesson useful to those who inflict and to those who feel oppression, you retire from the great theatre of action with the blessings of your fellow-citizens; but the glory of your virtues will not terminate with your military command; it will continue to animate remotest ages. We feel with you our obligations to the army in general, and will particularly charge ourselves with the interests of those confidential officers who have attended your person to this affecting moment. We join you in commending the interests of our dearest country to the protection of Almighty God, beseeching him to dispose the hearts and minds of its citizens to improve the opportunity afforded them of becoming a happy and respectable nation. And for you we address to him our earnest prayers that a life so beloved may be fostered with all his care; that your days may be happy as they have been illustrious; and that he will finally give you that reward which this world cannot give." Journals, IX. 12, 13. December 22, 1783. [211] Ibid. [212] Journals, IX. 30. January 14, 1784. [213] See Washington's letter to Governor Harrison, of the date of January 18, 1784. Writings, IX. 11. [214] Twenty-three members voted on the ratification of the Treaty, January 14, 1784. On the 19th of April of the same year, the same number being present, eleven States only being represented, and nine of these having only two members each, the following resolution was passed: "_Resolved_, That the legislatures of the several States be informed, that, whilst they are respectively represented in Congress by two delegates only, such a unanimity for conducting the most important public concerns is necessary as can be rarely expected; that if each of the thirteen States should be represented by two members, five out of twenty-six, being only a fifth of the whole, may negative any measures requiring the voice of nine States; that of eleven States now on the floor of Congress, nine being represented by only two members from each, it is in the power of three out of twenty-five, making only one eighth of the whole, to negative such a measure, notwithstanding that by the Articles of Confederation the dissent of five out of thirteen, being more than one third of the number, is necessary for such a negative; that in a representation of three members from each State, not less than ten of thirty-nine could so negative a matter requiring the voice of nine States; that, from facts under the observation of Congress, they are clearly convinced that a representation of two members from the several States is extremely injurious, by producing delays, and for this reason is likewise much more expensive than a general representation of three members from each State; that therefore Congress conceive it to be indispensably necessary, and earnestly recommend, that each State, at all times when Congress are sitting, be hereafter represented by three members at least; as the most injurious consequences may be expected from the want of such representation." At the time when the report of the Convention, transmitting the Constitution, was received (September 28, 1787), there were thirty-three members in attendance, from twelve States. Rhode Island was not represented. [215] The sum reported by a committee, and finally agreed to be necessary, was $3,812,539.33. Journals, IX. 171. April 27, 1784. [216] Journals, VIII. 129. February 17, 1783. [217] Ibid. 198. April 26, 1783. [218] Connecticut, New Jersey, Pennsylvania, and South Carolina. [219] Of the old requisition of $8,000,000, made October 30, 1781, only $1,486,511.71 had been paid by all the States before December 31, 1783. [220] Journals, IX. 171-179. April 27, 1784. [221] Journals, X. 325-334. September 27, 1785. [222] Journals, XI. 167. August 2, 1786. [223] Ibid. 224. September 18, 1786. Upon this attempt of Rhode Island and New Jersey to pay their proportions in their own paper currency, the report of a committee declared, "That, to admit the receipt of bills of credit, issued under the authority of an individual State, in discharge of their specie proportions of a requisition, would defeat its object, as the said bills do not circulate out of the limits of the State in which they are emitted, and because a paper medium of any State, however well funded, cannot, either in the extensiveness of its circulation, or in the course of its exchange, be equally valuable with gold and silver. That if the bills of credit of the States of Rhode Island and New Jersey were to be received from those States in discharge of federal taxes, upon the principles of equal justice, bills emitted by any other States must be received from them also in payment of their proportions, and thereby, instead of the requisitions yielding a sum in actual money, nothing but paper would be brought into the federal treasury, which would be wholly inapplicable to the payment of any part of the interest or principal of the foreign debt, or the maintenance of the government of the United States." [224] Journals, XI. 34-40. February 15, 1786. [225] Ibid. [226] Journals, XI. 34-40. February 15, 1786. [227] New Hampshire, Massachusetts, Connecticut, New Jersey, Virginia, North Carolina, and South Carolina. [228] Pennsylvania and Delaware. [229] Delaware and North Carolina. [230] Rhode Island, New York, Maryland, and Georgia. [231] The report on this occasion (February 15, 1786), drawn by Rufus King, declared, "that the requisitions of Congress for eight years past have been so irregular in their operation, so uncertain in their collection, and so evidently unproductive, that a reliance on them in future as a source from whence moneys are to be drawn to discharge the engagements of the Confederacy, definite as they are in time and amount, would be not less dishonorable to the understandings of those who entertain such confidence, than it would be dangerous to the welfare and peace of the Union. The committee are therefore seriously impressed with the indispensable obligation that Congress are under, of representing in the immediate and impartial consideration of the several States the utter impossibility of maintaining and preserving the faith of the federal government by temporary requisitions on the States, and the consequent necessity of an early and complete accession of all the States to the revenue system of the 18th of April, 1783." [232] May 4, 1786. [233] Life of Hamilton, II. 385. [234] August 11, 1786. [235] The ground of his refusal was, "that he had not the power to convene the legislature before the time fixed by law for their stated meeting, except upon '_extraordinary occasions_,' and as the present business had already been particularly laid before them, and so recently as at their last session received their determination, it cannot come within that description." Life of Hamilton, II. 389. [236] August 23, 1786. CHAPTER II. 1784-1787. INFRACTIONS OF THE TREATY OF PEACE. The Treaty of Peace, ratified on the 14th of January, 1784, contained provisions of great practical and immediate importance. One of its chief objects, on the part of the United States, was, of course, to effect the immediate withdrawal of the British troops, and of every sign of British authority, from the country whose independence it acknowledged. A stipulation was accordingly introduced, by which the King bound himself, with all convenient speed, and without causing any destruction, or carrying away any negroes or other property of the American inhabitants, to withdraw all his armies, garrisons, and fleets from the United States, and from every post, place, and harbor within the same. Although the ratification of the Treaty was followed by the departure of the British forces from the Atlantic coast, many important posts in the Western country, within the incontestable limits of the United States, with a considerable territory around each of them, were still retained[237]. On the part of England, it was of great consequence to secure to British subjects the property, and rights of property, of the enjoyment of which the state of hostilities had deprived them. A war between colonies and the parent state, which had sundered the closest intimacies of social and commercial intercourse, involved of necessity vast private interests. There were two large classes of English creditors, whose interests required protection; the British merchants to whom debts had been contracted before the Revolution, and the Tories, who had been obliged to depart from the United States, leaving debts due to them, and landed property, which had been seized. Clear and explicit stipulations were inserted in the Treaty, in order to protect these interests. It was provided that creditors on either side should meet with no lawful impediments to the recovery of the full value in sterling money of all _bona fide_ debts contracted before the date of the Treaty.[238] It was also agreed, that Congress should earnestly recommend to the legislatures of the respective States to provide for the restitution of all estates, rights, and properties, which had been confiscated, belonging to real British subjects, and to persons resident in districts in the possession of his Majesty's arms, and who had not borne arms against the United States; that persons of any other description should have free liberty to go into any of the States, and remain for the period of twelve months unmolested in their endeavors to obtain the restitution of their property and rights which had been confiscated; that Congress should recommend to the States a reconsideration and revision of all their confiscation laws, and a restoration of the rights and property of the last-mentioned persons, on their refunding the _bona fide_ price which any purchaser might have given for them since the confiscation. It was also agreed, that all persons having any interest in confiscated lands, either by debts, marriage settlements, or otherwise, should meet with no lawful impediment in the prosecution of their just rights.[239] It was further provided, that there should be no future confiscations made, nor any prosecutions commenced against any person on account of the part he might have taken in the war, and that no person should, on that account, suffer any future loss or damage, either in person, liberty, or property, and that those who might be in confinement on such charges, at the time of the ratification of the Treaty in America, should be immediately set at liberty, and the prosecutions be discontinued.[240] These provisions related to a great subject, with which, in the existing political system of this country, it was difficult to deal. The action of the States, with regard to some of the interests involved in these stipulations, had been irregular from an early period of the war. The Revolutionary Congress, on the commencement of hostilities, had suffered the opportunity of asserting their rightful control over the subject of alien interests, except as to property found on the high seas, to pass away; and the consequence was, that the States had, on some points, usurped an authority which belonged to the Union. A Union, founded in compact, and vesting the rights of war and peace in Congress, was formed in 1775; and from that time the Colonies, or, as they afterwards became, States, were never rightfully capable of passing laws to sequester or confiscate the debts or property of a national enemy[241]. After the great acts of national sovereignty which took place in 1775-6, a British subject could not, with any propriety, be considered as the enemy of Massachusetts, or of Virginia; he was the enemy of the United States, and by that authority alone, as the belligerent, was his property, in strictness, liable to be seized, or the debts due to him sequestered. But neither the Revolutionary Congress, nor that of the Confederation, appear to have ever exercised the power of confiscating the debts or property of British subjects, within the States, or to have recommended such confiscation to the States themselves[242]. On the other hand, they did not interfere when the States saw fit to do it. With regard to those inhabitants of the States who, adhering to the British crown, had abandoned the country, and left property behind them, it cannot so clearly be affirmed that the States should not have dealt with their persons or property. Congress, as we have seen, at an early period of the war, committed the whole subject of restraining the persons of the Tories to the Colonies or States; and as Congress never assumed or exercised any jurisdiction over their property, it was of course left to be dealt with by the legislatures of the States, to whom Congress had declared that their several inhabitants owed allegiance[243]. But as these persons, by adhering to the crown, might claim of the crown the rights and protection of British subjects, the propriety of confiscating or withholding their property would remain for solution, at the negotiation of the Treaty of Peace, as a question of general justice and equity, rather than of public law. The interests of both of these classes of persons were too important to be overlooked. Three millions sterling were due from the inhabitants of the Colonies to merchants in Great Britain, at the commencement of the war. At the return of peace, the laws of five of the States were found either to prohibit the recovery of the principal, or to suspend its collection, or to prohibit the recovery of interest, or to make land a good payment in place of money.[244] The purpose of the Treaty was to declare, that all _bona fide_ debts, contracted before the date of the Treaty, and due to citizens of either country, remained unextinguished by the war; and consequently, that interest, when agreed to be paid, or payable by the custom, or demandable as damages for delay of payment, was justly due. Over this whole subject of foreign debts, the national sovereignty, of right, had exclusive control; for confiscation of the property of a national enemy belongs exclusively to the power exercising the rights of war; and therefore whatever State laws might have been passed during the war, exercising rights which belonged to the national sovereign, they could have no validity when that sovereign came to resume its control over the subject, and to stipulate that the right of confiscation, if it ever existed, should not be exercised. The State laws, however, existed, and remained in conflict with the Treaty, for several years, producing consequences to which we shall presently advert. The fifth article of the Treaty was infringed by an act passed by the State of New York, authorizing actions for rent to be brought by persons who had been compelled to leave their lands and houses by the enemy, against those who had occupied them while the enemy were in possession, and declaring that no military order or command of the enemy should be pleaded in justification of such occupation.[245] The sixth article was also violated by an act of the same State, which made those inhabitants who had adhered to the enemy, if found within the State, guilty of misprision of treason, and rendered them incapable of holding office, or of voting at elections.[246] The powers of the government were entirely inadequate to meet this state of things. The Confederation gave to the United States in Congress assembled the sole and exclusive right of determining on peace and war, and of entering into treaties and alliances. The nature of the sovereignty thus established made a treaty the law of the land, and binding upon every member of the Union; but there existed no means of enforcing the obligation. If the legislatures of the States passed laws restraining or interfering with the provisions of a treaty, Congress could only declare that they ought to be, and recommend that they should be, repealed. The simple and effectual intervention of a national judiciary, clothed with the power of declaring void any State legislation that conflicted with the national sovereignty, and of giving the means of enforcing all rights which that sovereignty had guaranteed by compact with a foreign power, did not exist. Resort, it is true, could be had to the State tribunals; and, on one memorable occasion, such resort was had to them with success. But the legislative power assailed the independence of the judiciary, and indignantly declared a decision, made with fairness by a competent tribunal, subversive of law and good order, because it recognized the paramount authority of a treaty over a statute of the State.[247] The effect of such State legislation upon the relations of the two countries was direct and mischievous. The Treaty of Peace was designed, and was adapted, to produce a fair and speedy adjustment of those relations, upon principles of equity and justice. But its obligations were reciprocal, and it could not execute itself. It was made, on the one side, by a power capable of performing, but also capable of waiting for the performance of the obligations which rested upon the other contracting party. On the other side, it was made by a power possessed of very imperfect means of performance, yet standing in constant need of the benefit which a full compliance with its obligations would insure. After the lapse of three years from the signature of the preliminary articles, and of more than two years from that of the definitive Treaty, the military posts in the Western country were still held by British garrisons, avowedly on account of the infractions of the Treaty on our part. The Minister of the United States at St. James's was told, in answer to his complaints, that one party could not be obliged to a strict observance of the engagements of a treaty, and the other remain free to deviate from its obligations; and that whenever the United States should manifest a real determination to fulfil their part of the Treaty, Great Britain would be ready to carry every article of it into complete effect.[248] An investigation of the whole subject, therefore, became necessary, and Congress directed the Secretary of Foreign Affairs to make inquiry into the precise state of things. His report ascertained that the fourth and fifth articles of the Treaty had been constantly violated on our part by legislative acts still in existence and operation; that on the part of England, the seventh article had been violated, by her continuing to hold the posts from which she had agreed to withdraw her garrisons, and by carrying away a considerable body of negroes, the property of American inhabitants, at the time of the evacuation of New York.[249] The serious question recurred,--what was to be done? The United States had neither committed nor approved of any violation of the Treaty; but an appeal was made to their justice, relative to the conduct of particular States, for which they were obliged eventually to answer. They could only resolve and recommend; and accordingly, after having declared that the legislatures of the States could not, of right, do any thing to explain, interpret, or limit the operation of a treaty, Congress recommended to the States to pass a general law, repealing all their former acts that might be repugnant to the Treaty, and leaving to their courts of justice to decide causes that might arise under it, according to its true intent and meaning, by determining what acts contravened its provisions.[250] This recommendation manifestly left the interests of the Union exposed to two hazards; the one, that the legislatures of the States might not pass the repealing statute, which would submit the proper questions to their courts, and the other, that their courts might not decide with firmness and impartiality between the policy of the State, on the one hand, and the interests of foreigners and obnoxious Tories, on the other. But this was all that could be done, and partial success only followed the effort. Most of the States passed acts, in compliance with the recommendation of Congress, to repeal their laws which prevented the recovery of British debts.[251] But the State of Virginia, although it passed such an act, suspended its operation, until the Governor of the State should issue a proclamation, giving notice that Great Britain had delivered up the Western posts, and was taking measures for the further fulfilment of the Treaty, by delivering up the negroes belonging to the citizens of that State, which had been carried away, or by making compensation for their value.[252] The two countries were thus brought to a stand, in their efforts to adjust the matters in dispute, and the Western posts remained in the occupation of British garrisons, inflaming the hostile temper of the Indian tribes, and enhancing the difficulty of settling the vacant lands in the fertile region of the Great Lakes.[253] FOOTNOTES: [237] Secret Journals of Congress, IV. 186, 187. [238] Article IV. [239] Article V. [240] Article VI. [241] See the Report made to Congress on this subject by Mr. Jay, Secretary of Foreign Affairs, October, 1786. Secret Journals, IV. 209. [242] Ibid. [243] Resolve of June 24, 1776. Journals, II. 216. Ante, p. 52, note. [244] An act passed by the legislature of Massachusetts, November 9, 1784, suspended judgment for interest on British debts, until Congress should have put a construction upon the Treaty declaring that it was due. An act of the State of New York, of July 12, 1782, restrained the collection of debts due to persons within the enemy's lines. Pennsylvania, soon after the peace, passed a law restraining the levy of executions. Virginia, at the time of the peace, had existing laws inhibiting the recovery of British debts. South Carolina had made land a good payment, in place of money. (See Mr. Jay's Report.) [245] Passed March 17, 1783. Secret Journals, IV. 267. [246] Passed May 12, 1784, after the Treaty had been ratified. Secret Journals, IV. 269-274. [247] This happened in New York, in a case under the "Trespass Act," where a suit was brought in the Mayor's Court of the City of New York, "to recover the rents of property held by the defendant under an order of Sir Henry Clinton." Hamilton, in the defence of this case, contended, with great power, that the act was a violation of the Treaty, and the court sustained his position. But the legislature passed resolves, declaring the decision to be subversive of law and good order, and recommending the appointing power "to appoint such persons Mayor and Recorder of New York as will govern themselves by the known law of the land." Life of Hamilton, II. 244, 245. [248] Mr. John Adams was sent as the first Minister of the United States to the Court of St. James's in 1785. He received this reply to a memorial which he addressed to the British government, on the subject of the Western posts, in February, 1786. Secret Journals, IV. 187. [249] Secret Journals, IV. 209. [250] March 21, 1787. [251] New Hampshire, Massachusetts, Rhode Island, Connecticut, Delaware, Maryland, Virginia, and North Carolina passed such acts. [252] Pitkin's History of the United States, II. 198. [253] Marshall's Life of Washington, V. 67, 68. CHAPTER III. 1786-1787. NO SECURITY AFFORDED BY THE CONFEDERATION TO THE STATE GOVERNMENTS.--SHAYS'S REBELLION IN MASSACHUSETTS, AND ITS KINDRED DISTURBANCES. No federative government can be of great permanent value, which is not so constructed that it may stand, in some measure, as the common sovereign of its members, able to protect them against internal disorders, as well as against external assaults. The Confederation undertook but one of these great duties. It was formed at a time when the war with England was the great object of concern to the revolted Colonies, and when they felt only the exigencies which that war created. Hence its most important powers, as well as its leading purpose, concerned the common cause of resistance to a foreign domination. A federal league of States independent of each other, formed principally for mutual defence against a common enemy, was all that succeeded to the general superintending power of the British crown, by which the internal affairs of each of them had always been regulated and controlled, in the last resort. When the tie was broken by which they had been held to the parent state, each of them created for itself a new government, resting for its basis on the popular will, and deriving its authority directly from the people; but none of them provided for the creation of a power, external to itself, which might stand as the guarantor and protector of their new institutions, and secure the principles on which they rested against violence and overthrow. Yet the constitutions thus formed, from their peculiar nature, eminently needed the safeguards which such a power could afford. These constitutions were admirably constructed. They contained principles imperfectly known to the ancient governments; found in modern times only in the government of England; and applied there with far less consistency and completeness. They embraced the regular distribution of political power into distinct departments; legislative checks and balances, by means of two coördinate branches of the legislature; a judiciary in general holding office during good behavior; and the representation of the people in the legislature, by deputies of their own actual election, in which the theory of such representation was more perfectly carried into practice than it had ever been in the country from which it was derived. But the fundamental principle on which they all rested, and without which they could not maintain existence, required means of defence. They were established upon the great doctrine, that it is the right of every political society to govern itself, and for the purposes of such self-government, to create such constitutions and ordain such fundamental laws as its own judgment and its own intelligent choice may find best suited to its own interests. But society can act only by an expression of the aggregate will of its members; and as there may be members who dissent from the views and determinations of the great mass of society, and it is therefore necessary to decide with whom the power of compelling obedience resides,--since there must be obedience in order that there may be peace,--nature and reason have determined that this power is to reside with a majority of the members. The American constitutions, therefore, are founded wholly upon the principle, that a majority expresses the will of the whole society, and may establish, change, and abrogate forms of government at its pleasure.[254] It follows, as a necessary deduction from this fundamental doctrine, that so soon as society has acted in the formation and establishment of a government, upon this principle, no change can take place, but by a new expression of the will of society through the voice of a majority; and whether a majority desires or has actually decreed a change, is a fact that must be made certain, and can only be made certain in one of two modes,--either by the evidence and through the channels which the society has previously ordained for this purpose, or by the submission of all its members to a violent and successful revolution. The first constitution of Massachusetts did not designate any mode in which it was to be amended or changed. But no peaceable change can take place in any government founded on the expressed will of a majority of the people, consistently with the principle on which it had been established, until it has been ascertained, in some mode, that a change is demanded by the same authority. The vital importance of ascertaining this fact with precision was not so clearly perceived, at that early period, as it is now. Seizing upon the newly established doctrine, which made them the sources of all political power, the people did not at once apprehend the rule which preserves and upholds that power, and makes the doctrine itself both practicable and safe. Hence, when troubles arose, individuals were led to suppose that they had only to declare a grievance, to demand a change, and to compel a compliance with their demand by force. So far as they reasoned at all, they persuaded themselves that, as their government was the creation of the people, by their own direct act, bodies of the people could assemble in their primary capacity, and, by obstructing any of its functions which they connected with a particular grievance, produce a reform, which the people have always a right to make. By overlooking, in this manner, the only safe and legitimate mode in which the popular will can be really ascertained, they passed into the mischiefs of anarchy and rebellion, mistaking the voices of a minority for the ascertained will of society. To these tendencies, the recently established governments of New England, where the spirit of liberty was most vigorous, could oppose no efficient check; while, in any open outbreak, they were without any external defender, on whose power they could lean. The Confederation succeeded to the Revolutionary Congress, as we have more than once had occasion to observe, with less power than its predecessor might have exercised. It was formed by a written constitution, yet it was, strictly speaking, scarcely a government. It was a close union of the States; but it was a union from which all powers had been jealously withheld which would have enabled it to interfere with vigor and success between an insurgent minority of the people of a State and its lawful rulers. The Revolutionary Congress was once possessed of such large, indefinite powers, that, upon principles of public necessity, it might have assumed, in a great emergency, to hold a direct relation to the internal concerns of any Colony. It was, in fact, looked to, in some degree, for direction in the formation of the State governments, after it had broken the bonds of colonial allegiance to the English crown; and it might very properly have undertaken to support the governments whose establishment it had recommended. But such a relation between the early States and the continental power, though it certainly existed in 1776, was soon lost in the independent and jealous attitude which they began to occupy, and the Union rapidly assumed a position, where the character of sovereignty which it appeared to wear when it promulgated the Declaration of Independence was scarcely to be discerned. At no period in the history of the Confederation did it act upon the internal concerns or condition of a State. Its written articles of union hardly admitted of a construction which would have enabled it to do so, and certainly contained no express delegation of such a power. At the same time, some of the State governments, during the period of which we are treating, were singularly exposed to the dangers of anarchy. None of them had any standing forces of any consequence, three years after the peace, and the New England States had no military forces whatever but their militia. No State could call upon its neighbors for aid in quelling an insurrection, for their militia would not have obeyed the summons, if it had been issued; and no State could call upon the federal government, in such an emergency, with any certainty of success in the application.[255] In such a state of things, the year 1786 witnessed an insurrection in Massachusetts of a very dangerous character, which, from the fortunate circumstance that her counsels were then guided by a man of singular energy and firmness of character, she was just able to subdue. The remote causes of this insurrection lie too far from the path of our main subject to be more than summarily stated. At the close of the Revolutionary war, the State of Massachusetts was oppressed with an enormous debt. At the breaking out of that war, the debt of the Colony was less than one hundred thousand pounds. The private debt of the State, in the year 1786, was one million three hundred thousand pounds, besides two hundred and fifty thousand pounds due to the officers and soldiers of the State line of the Revolutionary army. The State's proportion of the federal debt was not less than one million and a half of pounds.[256] According to the customary mode of taxation, one third of the whole debt was to be paid by the ratable polls, which scarcely exceeded ninety thousand.[257] The Revolution had made the people of Massachusetts familiar with the great general doctrines of liberty and human rights; but it had given them little insight into the principles of revenue and finance, and little acquaintance with the rules of public economy. No sufficient means, therefore, to relieve the people from direct taxation, by encouraging a revival of trade and at the same time drawing from it a revenue, were devised by the legislature. The exports of the State, moreover, had suffered a fearful diminution. The fisheries, which had been a fruitful source of prosperity to the colony, had been nearly destroyed by the war, and the markets of the West Indies and of Europe were now closed to the products of this lucrative industry, by which wealth had formerly been drawn from the wastes of the ocean. The State had scarcely any other commodity to exchange for the precious metals in foreign commerce. Its agriculture yielded only a scanty support to its population, if it yielded so much; its manufactures were in a languishing condition; and its carrying trade had been driven from the seas during the war, and was afterwards annihilated by the oppressive policy of England, which succeeded the Peace. The people were every year growing poorer than they had been the year before, and taxes, onerous taxes, beyond their resources and always odious, were pressing upon them with a constantly increasing accumulation, from which the political state of the country seemed to promise no relief.[258] But the demand of the tax-gatherer was not the sole burden which individuals had to encounter. Private debts had accumulated during the war, in almost as large a ratio as the public obligations. The collection of such debts had been generally suspended, while the struggle for political freedom was going on; but that struggle being over, creditors necessarily became active, and were often obliged to be severe. Suits were multiplied in the courts of law beyond all former precedent, and the first effect of this sudden influx of litigation was to bring popular odium upon the whole machinery of justice. In a state of society approaching so nearly to a democracy, the class of debtors, if numerous, must be politically formidable. They had begun to be so before the close of the war. Their clamors and the supposed necessity of the case led the legislature, in 1782, to a violation of principle, in a law known as the Tender Act, by which executions for debt might be satisfied by certain articles of property, to be taken at an appraisement. This law was limited in its operation to one year; but in the course of that year it taught the debtors their strength, and gave the first signal for an attack upon property. A levelling, licentious spirit, a restless desire for change, and a disposition to throw down the barriers of private rights, at length broke forth in conventions, which first voted themselves to be the people, and then declared their proceedings to be constitutional. At these assemblies, the doctrine was publicly broached, that property ought to be common, because all had aided in saving it from confiscation by the power of England. Taxes were voted to be unnecessary burdens, the courts of justice to be intolerable grievances, and the legal profession a nuisance. A revision of the constitution was demanded, in order to abolish the Senate, reform the representation in the House, and make all the civil officers of the government eligible by the people. A passive declaration of their grievances did not, however, content the disaffected citizens of Massachusetts. They proceeded to enforce their demands. The courts of justice were the nearest objects for attack, as well as the most immediately connected with the chief objects of their complaints. Armed mobs surrounded the court-houses in several counties, and sometimes effectually obstructed the sessions of the courts. These acts were repeated, until, in the autumn of 1786, the insurrection broke out in a formidable manner in the western part of the State. The insurgents actually embodied, and in arms against the government, in the month of December, in the counties of Worcester and Hampshire, numbered about fifteen hundred men, and were headed by one Daniel Shays, who had been a captain in the continental army.[259] The executive chair of the State was at that time filled by James Bowdoin; a statesman, firm, prudent, of high principle, and devoted to the cause of constitutional order. In the first stages of the disaffection, he had been thwarted by a House of Representatives, in which the majority were strongly inclined to sympathize with the general spirit of the insurgents; but the Senate had supported him. Afterwards, when the movement grew more dangerous, the legislature became more reconciled to the use of vigorous means to vindicate the authority of the government, and a short time before it actually took the form of an armed and organized rebellion against the Commonwealth, they had encouraged the Governor to use the powers vested in him by the constitution to enforce obedience to the laws. The Executive promptly met the emergency. A body of militia was marched against the insurgents, and by the middle of February they were dispersed or captured, with but little loss of life. The actual resources of the State, however, to meet an emergency of this kind, were feeble and few. A voluntary loan, from a few public-spirited individuals, supplied the necessary funds, of which the treasury of the State was wholly destitute.[260] At one time, so general was the prevalence of discontent, even among the militia on whom the government were obliged to rely, that men were known openly to change sides in the field, when the first bodies of troops were called out.[261] Had the government of the State been in the hands of a person less firm and less careless of popularity than Bowdoin, it would have been given up to anarchy and civil confusion. The political situation of the country did not seem to admit of an application to Congress for direct assistance, and there is no reason to suppose that such an application would have been effectively answered, if it had been made.[262] When the news of the disturbances in Massachusetts, in the autumn of 1786, was received in Congress, it happened that intelligence from the Western country indicated a hostile disposition on the part of several Indian tribes against the frontier settlements. A resolve was unanimously adopted, directing one thousand three hundred and forty additional troops to be raised, for the term of three years, for the protection and support of the States bordering on the Western territory and the settlements on and near the Mississippi, and to secure and facilitate the surveying and selling of the public lands.[263] From the fact that the whole of these troops were ordered to be raised by the four New England States, and one half of them by the State of Massachusetts, and from other circumstances, it is quite apparent that the object assigned was an ostensible one, and that Congress intended by this resolve to strengthen the government of that State and to overawe the insurgents.[264] But this motive could not be publicly announced. The enlistment went on very slowly, however, until February, when a motion was made by Mr. Pinckney of South Carolina to stop it altogether, upon the ground that the insurrection in Massachusetts, the real, though not the ostensible, object of the resolve, had been crushed. Mr. King of Massachusetts earnestly entreated that the federal enlistments might be permitted to go on, otherwise the greatest alarm would be felt by the government of the State and its friends, and the insurrection might be rekindled. Mr. Madison advised that the proposal to rescind the order for the enlistments should be suspended, to await the course of events in Massachusetts. At the same time, he admitted that it would be difficult to reconcile an interference of Congress in the internal controversies of a State with the tenor of the Articles of Confederation.[265] The whole subject was postponed, and the direct question of the power of Congress was not acted upon. In the Convention which framed the Constitution, it was very early declared, that the Confederation had neither constitutional power, nor means, to interfere in case of a rebellion in any State.[266] This generation can scarcely depict to itself the alarm which these disturbances spread through the country, and the extreme peril to which the whole fabric of society in New England was exposed. The numbers of the disaffected in Massachusetts amounted to one fifth of the inhabitants in several of the populous counties. Their doctrines and purposes were embraced by many young, active, and desperate men in Rhode Island, Connecticut, and New Hampshire, and the whole of this faction in the four States was capable of furnishing a body of twelve or fifteen thousand men, bent on annihilating property, and cancelling all debts, public and private.[267] But this great peril was not without beneficial consequences. It displayed, at a critical moment, when a project of amending the Federal Constitution for other purposes was encountering much opposition, a more dangerous deficiency than any to which the public mind had hitherto been turned. While thoughtful and considerate men were speculating upon the causes of diminished prosperity and the general feebleness of the system of government, a gulf suddenly yawned beneath their feet, threatening ruin to the whole social fabric. It was but a short time before, that the people of this country had shed their blood to obtain constitutions of their own choice and making. Now, they seemed as ready to overturn them as they had once been to extort from tyranny the power of creating and erecting them in its place. It was manifest, that to achieve the independence of a country is but half of the great undertaking of liberty;--that, after freedom, there must come security, order, the wise disposal of power, and great institutions on which society may repose in safety. It was clear, that the Federal Union alone could certainly uphold the liberty which it had gained for the people of the States, and that, to enable it to do so, it must become a government.[268] From his retreat at Mount Vernon, Washington observed the progress of these disorders with intense anxiety. To him, they carried the strongest evidence of a want of energy in the system of the Federal Union. They did more than all things else to convince him that "a liberal and energetic constitution, well checked and well watched to prevent encroachments, might restore us to that degree of respectability and consequence to which we had the fairest prospect of attaining."[269] He was kept accurately informed of the state of things in New England, and the probability that he would be obliged to come forward, and take an active part in the support of order against civil discord, was directly intimated to him.[270] He had foreseen the possibility of this; but the successful issue of the struggle relieved him from the contemplation of this painful task, and left to him only the duty of giving the whole weight of his influence and presence in the Convention, which was to assemble in the following May, for the revision of the Federal Constitution. FOOTNOTES: [254] Gibbon, with that graceful satire which knew how to hit two objects with the same stroke of his pen, describes hereditary monarchy as "an expedient which deprives the multitude of the dangerous, and indeed the ideal, power of giving themselves a master." The historian of the Decline and Fall began to publish his great work, just as the American Revolution burst upon the world. Since that sentence was penned, the experiment of a system, by which the multitude give to themselves a master, in the constitutional organs of their own will, has had a fair trial. We may not say that its trial is past, or that the system is established beyond the possibility of further dangers. But we may with a just pride point to its escape, in the days of its first establishment and greatest danger, and to the securities which the Constitution of the United States now affords, against similar perils, when they threaten the constitutions of the States. [255] A power to interfere in the internal concerns of a State would only have been exercised by a broad construction of the third of the Articles of Confederation, which was in these words: "The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare; binding themselves to assist each other against all force offered to or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever." When this is compared with the clear and explicit provision in the Constitution, by which it is declared that "the United States shall guarantee to every State in this Union a republican form of government," there can be no wonder that a doubt was felt in the Congress of 1786-87 as to their powers upon this subject. It is true that the Massachusetts delegation, when they laid before Congress the measures which had been taken by the State government to suppress the insurrection, expressed the confidence of the legislature that the firmest support and most effectual aid would have been afforded by the United States, had it been necessary, and asserted that such support and aid were expressly and solemnly stipulated by the Articles of Confederation. (Journals, XII. 20. March 9, 1787.) But this was clearly not the case; and it was not generally supposed in Congress that the power existed by implication. All that was done by Congress towards raising troops, at the time of the insurrection, was done for the _ostensible_ purpose of protecting the frontiers against an Indian invasion, as we shall see hereafter. [256] Minot's History of the Insurrection, p. 6. [257] Ibid. [258] See the next chapter for some particulars respecting the trade of Massachusetts. [259] Minot's History of the Insurrection, p. 82 et seq. [260] Governor Bowdoin's Speech to the Legislature, February 3, 1787. [261] Minot. [262] In the spring of 1786, the State had asked the loan from Congress of sixty pieces of field artillery. The application was refused, by the negative vote of six States out of eight, one being divided, and the delegation from Massachusetts alone supporting it. Journals, XI. 65-67. April 19, 1786. [263] Journals, XI. 258. October 30, 1786. [264] It was well understood, for instance, in the legislature of Virginia, that this was the real purpose; for Mr. Madison says that this consideration inspired the ardor with which they voted, towards their quota of the funds called for to defray the expenses of this levy, a tax on tobacco, which would scarcely have been granted for any other purpose, as its operation was very unequal. Elliot's Debates, V. 95. February 19, 1787. [265] Ibid. [266] Ibid. 127. [267] This was the estimate of their numbers formed by General Knox, on careful inquiry, and by him given to General Washington. See a letter from General Washington to Mr. Madison. Works, IX. 207. [268] Washington, writing to Henry Lee in Congress, October 31, 1786, says: "You talk, my good sir, of employing influence to appease the present tumults in Massachusetts. I know not where that influence is to be found, or, if attainable, that it would be a proper remedy for the disorders. _Influence_ is not _government_. Let us have a government by which our lives, liberties, and properties will be secured, or let us know the worst at once." Works, IX. 204. [269] Ibid. 208. [270] Ibid. 221. CHAPTER IV. ORIGIN AND NECESSITY OF THE POWER TO REGULATE COMMERCE. Among all the causes which led to the establishment of the Constitution of the United States, there is none more important, and none that is less appreciated at the present day, than the inability of the Confederation to manage the foreign commerce of the country. We have seen that, when the Articles of Confederation were proposed for adoption by the States, the State of New Jersey remonstrated against the absence of all provision for placing the foreign trade of the States under the regulation of the federal government. But this remonstrance was without effect, and the instrument went into operation in 1781, with no other restriction upon the powers of the States to regulate trade according to their pleasure, than a prohibition against levying imposts or duties which would interfere with the treaties then proposed. While the war continued, the subject was of comparatively little importance. But the return of peace found this country capable of becoming a great commercial, as well as agricultural nation; and it could not be overlooked, that its government possessed very inadequate means for establishing such relations with foreign powers as would best develop its resources and conduce to its internal harmony and prosperity. How early this great interest had attracted the attention of those who were most capable of enlarged and statesmanlike views of the actual nature of the Union and the wants of the States, there are perhaps as yet before the world no sufficient means of determining. We know, however, that, before the peace, Hamilton saw clearly that it was essential for the United States to be vested with a general superintendence of trade, both for purposes of revenue and regulation; that he foresaw the encouragement of our own products and manufactures, by means of general prohibitions of particular articles and a judicious arrangement of duties, and that this could only be effected by a central authority; and that the due observance of any commercial treaty which the United States might make with a foreign power could not be expected, if the different States retained the regulation of their own trade, and thus held the practical construction of treaties in their own hands.[271] But it does not appear that, among the other principal statesmen of the Revolution, these ideas had made much progress, until the entire incapacity of the Confederation to negotiate advantageous commercial treaties, for want of adequate power to enforce them, had displayed the actual weakness of its position, and the oppressive measures of other countries had taught them that there was but one remedy for such evils. Then, indeed, they saw that the United States could have a standing as a commercial power among the other powers of the world, only when their representatives could be received and dealt with as the representatives of one, and not of thirteen sovereignties; and that, if the measures of other countries, injurious to the trade of America, were to be counteracted at all, it must be by a power that could prohibit access to all the States alike, or grant it as to all, as circumstances might require.[272] The actual commercial relations of the United States with other countries, when the peace took place, were confined to treaties of amity and commerce with France, Sweden, and the Netherlands; the two latter transcending, in some degree, the powers of the Confederation. In 1776, the Revolutionary Congress had adopted a plan of treaties to be proposed to France and Spain, which contemplated that the subjects of each country should pay no duties in the other except such as were paid by natives, and should have the same rights and privileges as natives in respect to navigation and commerce.[273] When a treaty of amity and commerce came to be concluded with France, in 1778, the footing on which the subjects of the two countries were placed, in the dominions of each other, was that of the most favored nations, instead of that of natives.[274] The Articles of Confederation, proposed in 1777, and finally ratified in March, 1781, reserved to the States the right of levying duties and imposts, excepting only such as would interfere with any treaties that might be made "pursuant to the treaties proposed to France and Spain." The United States could therefore constitutionally complete these two treaties, and such as were dependent upon them, but no others which should have the effect of restraining the legislatures of the States from prohibiting the exportation or importation of any species of goods or merchandise, or laying whatever duties or imposts they thought proper.[275] In 1782, negotiations were entered into for a similar treaty with the States General of the Netherlands. When the instructions to Mr. Adams to negotiate this treaty were under consideration in Congress, it was recollected that the French treaty contained a stipulation, the effect of which would enable the heirs of the subjects of either party, dying in the territories of the other, to inherit real property, without obtaining letters of naturalization.[276] The doubt suggested itself,--as it well might,--whether such an indefinite license to aliens to possess real property within the United States, was not an encroachment upon the rights of the States. It seems to have been expected, when the French treaty was entered into, that the States would acquiesce in this provision, on account of the peculiar relations of this country to France, and because of the saving clause in the Articles of Confederation in favor of the treaties to be made with that power and with Spain.[277] But such a stipulation as this was clearly not within the meaning of that clause; and it was received with great repugnance by many of the States.[278] In the treaty with the Netherlands, it was proposed to insert a similar provision; but it was found to be extremely improbable that the States would comply with a similar engagement with another power. The language was therefore varied, so as to give the privilege of inheritance only as to the "effects" of persons dying in the country;--an expression which would probably exclude real property, but which might possibly be construed to include it.[279] With regard to duties and imposts, the Dutch treaty contained the same stipulation as the French, putting the subjects of either power on the footing of the most favored nations, and thereby holding out to the subjects of the United Provinces the promise of an equality, under the laws of the United States, with the subjects of France.[280] The same stipulation was inserted in a treaty subsequently made at Paris with the King of Sweden.[281] If these stipulations were supposed or intended to be binding upon the States, so as to restrain them from adopting, within their respective jurisdictions, any other rule than that fixed by the French treaty, for the subjects of the United Provinces and the King of Sweden, it is quite clear that the Articles of Confederation gave no authority to Congress to make them. They could have no effect, therefore, in producing a uniformity of regulation throughout the United States, with regard to the trade with Sweden and the Netherlands. The relations of the United States with Great Britain were, however, far more important, than their relations with Sweden or Holland. When the war was drawing to a close, and the provisional articles of peace had been agreed upon, a measure was in preparation in England, under the auspices of Mr. Pitt, designed as a temporary arrangement of commercial intercourse between Great Britain and the United States, and which would have enabled the government of this country to have formed a treaty so advantageous, that the States would doubtless have conformed their legislation to its provisions. That great statesman perceived, that it was extremely desirable to establish the intercourse of the two countries on the most enlarged principles of reciprocal benefit, and his purpose was, by a provisional arrangement, to evince the disposition of England to be on terms of amity with the United States, preparatory to the negotiation of a treaty.[282] But the administration, in which he was then Chancellor of the Exchequer, went out of office immediately after he had proposed this measure, and their successors, following a totally different line of policy, procured an act of Parliament authorizing the King in Council to regulate the commercial intercourse between the United States and Great Britain and her dependencies.[283] Mr. Pitt's bill was designed to admit the vessels and subjects of the United States into all the ports of Great Britain, in the same manner as the subjects and vessels of other independent sovereign states, and to admit merchandise and goods, the growth, produce, or manufacture of this country, under the same duties and charges as if they were the property of British subjects, imported in British vessels. It also proposed to establish an entirely free trade between the United States and the British islands, colonies, and plantations in America. The new administration, on the contrary, believing that this would encourage the American marine, to the ruin of that of Great Britain, and would deprive the latter of a monopoly in the consumption of her colonies, and in their carrying trade, resolved to reverse this entire policy. In this course, they were encouraged by the views which they took of the internal situation of this country, and which were, to a great extent, justified by the fact. They believed that we could not act, as a nation, upon questions of commerce; that the climates, the staples, and the manners of the States were different, and their interests therefore opposite; and that no combination was likely to take place, from which England would have reason to fear retaliation. They supposed, that, inasmuch as the Confederation had no power to make any but general treaties, and as the States had reserved to themselves nearly every power concerning the regulation of trade, no treaty could be made that would be binding upon all the States; and that, if treaties should become necessary, they must be made with the States respectively. But they denied that treaties were necessary, and maintained that it would be unwise to enter at present into any arrangements by which they might not wish afterwards to be bound. They determined, therefore, to deal with this country as a collection of rival States, with each of which they could make their own terms, after the pressure of their policy, and the impossibility of escaping from its effects, had begun to be felt. They accordingly began, by excluding from the British West Indies, under Orders in Council, the whole American marine, and by prohibiting fish, and many important articles of our produce, from being carried there, even in British vessels.[284] At the termination of the war, the foreign commerce of the United States was capable of great expansion. It consisted of three important branches,--the trade of the Eastern, that of the Middle, and that of the Southern States; each of which required at once the means of reaching foreign markets. The rice and indigo of the South might be carried to Europe. The Middle States might export to Europe tobacco, tar, wheat, and flour; and to the West Indies, pork, beef, bread, flour, lumber, tar, and iron. The Eastern States might supply the markets of Europe with spars, ship-timber, staves, boards, fish, and oil, and those of the West Indies with lumber, pork, beef, live cattle, horses, cider, and fish. The whole of these great interests of course received a sudden and almost fatal blow from the English Orders in Council, and no means whatever existed of countervailing their effects, but such as each State could provide for its own people, by its own legislation. Congress, however, awoke to the perception of an efficient and appropriate remedy, of a temporary character, and prepared to apply it, through an amendment of their powers. For the purpose of meeting the policy of Great Britain with similar restrictions on her commerce, they recommended to the States to vest in Congress, for the term of fifteen years, authority to prohibit the vessels of any power, not having treaties of commerce with the United States, from importing or exporting any commodities into or from any of the States, and also with the power of prohibiting, for a like term, the subjects of any foreign country, unless authorized by treaty, from importing into the United States any merchandise not the produce or manufacture of such country.[285] There was already before the States, as we have seen, in the revenue system of 1783, a proposal to them to vest in Congress power to levy certain duties on foreign commodities, for the same period; and if these two grants of power had been made, and made promptly, by the States, Congress would have possessed, for a time, an effectual control over commerce, and the practical means of forming suitable commercial treaties. But the proposal of the 30th of April, 1784, met with a tardy and reluctant attention among the States. Only one of them had acted upon it, as late as the following February, when the delegates for Maryland laid before Congress an act of that State upon the subject.[286] New Hampshire was the next State to comply, in the succeeding June.[287] In the mean time, however, Congress prepared to prosecute negotiations in Europe, trusting to the chances of an enlargement of their powers, in pursuance of their recommendation. Accordingly, they proceeded, in the spring of 1784, to appoint a commission to negotiate commercial treaties, and settled the principles on which such treaties were to be formed. The leading principle then determined on was, that each party to the treaty should have a right to carry their own produce, manufactures, and merchandise in their own bottoms to the ports of the other, and to take thence the produce, manufactures, and merchandise of the other, paying, in both cases, such duties only as were paid by the most favored nation. The resolves appointing the commission also contained a very explicit direction, that "the United States, in all such treaties, and in every case arising under them, should be considered as one nation, upon the principles of the Federal Constitution."[288] Yet the Federal Constitution did not, at that very moment, make the United States one nation for this purpose. Its principles gave to Congress no authority which could prevent the States from prohibiting any exportations or importations whatever, as to their respective territories; and the validity of these treaties, thus proposed to be negotiated with fifteen European powers, depended altogether upon the precarious assent of the thirteen States to the alterations in the principles of the Federal Constitution which Congress had proposed. That assent was not likely to be given, so as to become effectual for the purposes for which it had been asked. The action of the States was found, in the spring of 1786, to present a mass of incongruities, which rendered the whole scheme of thus increasing the federal powers almost hopeless. Four of the States had passed laws, conforming substantially to the recommendations of Congress, but restraining their operation until the other States should have complied.[289] Three of the States had passed the requisite acts, and had fixed different periods at which they were to take effect.[290] One State had granted full powers to regulate its trade, by restrictions or duties, for fifteen years, with a proviso that the law should be suspended until all the other States had done the same.[291] Another State had granted power, for twenty-five years, to regulate trade between the respective States, and to prohibit or regulate the importation only of foreign goods in foreign vessels, but restricting the operation of the act until the other States had passed similar laws.[292] Still another State had granted powers like the last, but without limitation of time, and with the proviso that, when all the other States had made the same grants, it should become an Article of the Confederation.[293] The three remaining States had passed no act upon the subject.[294] Upon these conflicting and irreconcilable provisions, Congress could take no other action, than to call the attention of the States again to the original proposal, and request them to revise their laws.[295] While this discordant legislation was manifesting at home the entire impracticability of amending the Federal Constitution by means of the separate action of the State legislatures, the commissioners abroad were engaged in efforts, nearly as fruitless, to negotiate the treaties which they had been instructed to make. The commission was opened at Paris on the 13th of August, 1784, and its objects announced to the different governments. France was not disposed to change the existing relations. England perceived the real want of power in the federal government, and recognized nothing in the commission but the fact that it had been issued by Congress, while the separate States had conferred no powers upon either Congress or the commissioners.[296] Prussia alone entered into a treaty, upon some of the principles laid down in the commission, and soon after it was executed, the commissioners ceased to do any thing whatever.[297] During the period which elapsed from the Treaty of Peace with England to the assembling of the Convention at Annapolis, the legislation of the different States, designed to protect themselves against the policy of England, was of course without system or concert, and without uniformity of regulation. At one time duties were made extravagantly high; at another, competition reduced them below the point at which any considerable revenue could be derived. At one time, the States acted in open hostility to each other; at another, they contemplated commercial leagues, without regard to the prohibition contained in the Articles of Confederation. No steady system was pursued by any of them, and the inefficacy of State legislation became at length so apparent, that a conviction of the necessity of new powers in Congress forced itself upon the public mind. FOOTNOTES: [271] Life of Hamilton, II. 233, 234. See also his resolutions on the defects of the federal government, intended to be offered in Congress in 1783, and especially the eighth resolution. Works of Hamilton, II. 269. [272] Hamilton himself, in some papers which he published in 1781, under the title of The Continentalist, gave the general sum of American statesmanship and its opportunities, down to that period. The events of the next seven years gave it a wonderful development. "It would be the extreme of vanity in us," said he, "not to be sensible that we began this revolution with very vague and confined notions of the practical business of government. To the greater part of us, it was a novelty; of those who under the former constitution had had opportunities of acquiring experience, a large proportion adhered to the opposite side, and the remainder can only be supposed to have possessed ideas adapted to the narrow colonial sphere in which they had been accustomed to move, not of that enlarged kind suited to the government of an independent nation. There were, no doubt, exceptions to these observations;--men in all respects qualified for conducting the public affairs with skill and advantage;--but their number was small; they were not always brought forward in our councils; and when they were, their influence was too commonly borne down by the prevailing torrent of ignorance and prejudice. On a retrospect, however, of our transactions, under the disadvantages with which we commenced, it is perhaps more to be wondered at, that we have done so well, than that we have not done better. There are, indeed, some traits in our conduct, as conspicuous for sound policy as others for magnanimity. But, on the other hand, it must also be confessed, there have been many false steps, many chimerical projects and Utopian speculations, in the management of our civil as well as of our military affairs. A part of these were the natural effects of the spirit of the times, dictated by our situation. An extreme jealousy of power is the attendant on all popular revolutions, and has seldom been without its evils. It is to this source we are to trace many of the fatal mistakes, which have so deeply endangered the common cause; particularly that defect which will be the object of these remarks,--a want of power in Congress." Works, II. 186. [273] Secret Journals, II. 7, 8. [274] Ibid. 59. [275] Articles of Confederation, Art. VI., IX. The expression in the _sixth_ article was: "No State shall lay any imposts, &c. that shall interfere with any stipulations in treaties entered into by the United States with any king, prince, or state, _in pursuance of_ any treaties already proposed by Congress to the court of France and Spain." The _ninth_ article saved to the States the general power of levying duties and laying prohibitions. [276] Secret Journals, II. 65, 66. Art. XIII of the Treaty of Amity and Commerce with France. The expression employed was, "goods movable and immovable," and the right of succession was given, _ab intestato_, without first obtaining letters of naturalization. [277] See a report on this _projet_ of the treaty, made by Mr. Madison, July 17, 1782. Secret Journals, II. 142-144. [278] Ibid. [279] Art. VI. of the Treaty of Amity and Commerce with the Netherlands, executed by Mr. Adams at the Hague, October 8, 1782. Journals, VIII. 96. [280] Ibid., Art. II., III. [281] April 3, 1783. Journals, VIII. 386-398. [282] Mr. Pitt's bill was brought in in March, 1783, and he went out of office immediately afterwards. [283] April, 1783. [284] July, 1783. Their idea was, that, if the American States should choose to send consuls, they should be received, and consuls sent to them in return that each State would soon enter into all necessary regulations with the consul, and that nothing more was necessary. See Lord Sheffield's Observations on American Commerce. [285] April 30, 1784. [286] February 14, 1785. Journals, X. 53. [287] By an act passed June 22-23, 1785; laid before Congress October 10, 1785. Ibid. 353. [288] The commission consisted of Mr. John Adams, then at the Hague, Dr. Franklin, then in France, and Mr. Jefferson, then in Congress. Mr. Jefferson sailed from Boston on the 5th of July, and arrived in Paris on the 6th of August, 1784. (Works, I. 49.) The powers with whom they were to negotiate commercial treaties were Russia, Austria, Prussia, Denmark, Saxony, Hamburg, Great Britain, Spain, Portugal, Genoa, Tuscany, Rome, Naples, Venice, Sardinia, and the Ottoman Porte. Secret Journals, III. 484-489. May 7, 1784. [289] Massachusetts, New York, New Jersey, and Virginia. [290] Connecticut, Pennsylvania, and Maryland. [291] New Hampshire. [292] Rhode Island. [293] North Carolina. [294] Delaware, South Carolina, and Georgia. [295] See a report made in Congress, March 3, 1786. Journals, XI. 41. [296] The Duke of Dorset, the English Ambassador at Paris, wrote to the commissioners (March 26, 1785) as follows: "Having communicated to my court the readiness you expressed in your letter to me of the 9th of December to remove to London, for the purpose of treating upon such points as may materially concern the interests, both political and commercial, of Great Britain and America; and having at the same time represented that you declared yourselves to be fully authorized and empowered to negotiate, I have been, in answer thereto, instructed to learn from you, gentlemen, what is the real nature of the powers with which you are invested,--whether you are merely commissioned by Congress, or whether you have received separate powers from the respective States. A committee of North American merchants have waited upon his Majesty's principal Secretary of State for Foreign Affairs, to express how anxiously they wished to be informed upon this subject; repeated experience having taught them in particular, as well as the public in general, how little the authority of Congress could avail in any respect, where the interest of any one individual State was even concerned, and particularly so where the concerns of that State might be supposed to militate against such resolutions as Congress might think proper to adopt. The apparent determination of the respective States to regulate their own separate interests renders it absolutely necessary, towards forming a permanent system of commerce, that my court should be informed how far the commissioners can be duly authorized to enter into any engagements with Great Britain, which it may not be in the power of any one of the States to render totally fruitless and ineffectual." Diplomatic Correspondence, II. 297. [297] Jefferson's Works, I. 50, 51. The whole proceedings of this commission may be found in the Diplomatic Correspondence, II. 193-346. CHAPTER V. 1783-1787. THE PUBLIC LANDS.--GOVERNMENT OF THE NORTHWESTERN TERRITORY.--THREATENED LOSS OF THE WESTERN SETTLEMENTS. The Confederation, although preceded by a cession of Western territory from the State of New York for the use of the United States, contained no grant of power to Congress to hold, manage, or dispose of such property. There had been, while the Articles of Confederation were under discussion in Congress, a proposal to insert a provision, giving to Congress the sole and exclusive right and power to ascertain and fix the western boundary of such States as claimed to the Mississippi or the South Sea, and to lay out the land beyond the boundary so ascertained into separate and independent States, from time to time, as the numbers and circumstances of the inhabitants might require.[298] This proposal was negatived by the vote of every State except Maryland and New Jersey.[299] Its rejection caused the adoption of the Confederation to be postponed for a period of more than two years after it was submitted to the States.[300] Virginia had set up claims to an indefinite extent of territory, stretching far into the Western wilderness, which were looked upon with especial jealousy by Maryland; and when the Articles of Confederation came before the legislature of that State for consideration, the absence of any provision vesting in the Union any control over these claims, or any power to ascertain and fix the western boundaries of the great States, became at once a cause of irritation and alarm. The steps taken by Maryland to have this power introduced into the Articles have already been detailed.[301] But the Articles could not be amended. Congress could only make efforts to remove this impediment to their adoption, by recommending to the States to cede their territorial claims to the Union. The first step which they took, for this purpose, was to recommend to the State of Virginia, and all the other States similarly situated, not to make sales of unappropriated lands during the continuance of the war.[302] This was followed by a full consideration of the subject presented by the objections of Maryland and the remonstrance of Virginia. Declining to reopen the question of the merits or policy of attempting to engraft the proposed power upon the Confederation, Congress deemed it more advisable to endeavor to procure a surrender of a portion of the territorial claims of the several States.[303] In pressing a recommendation to this effect, they were greatly aided by the course of the State of New York, which had already authorized its delegates in Congress to limit its western boundaries, and to cede a portion of its vacant lands to the United States.[304] They then immediately declared, by resolve, the purposes for which such cessions were to be held. The territories were to be disposed of for the common benefit of the United States; to be settled and formed into distinct republican States, which should become members of the Federal Union, and have the same rights of sovereignty, freedom, and independence as the other States. Each State so formed was to contain a suitable extent of territory, not less than one hundred, nor more than one hundred and fifty miles square; the necessary expenses incurred by any State in acquiring the territory ceded, were to be reimbursed; and the lands were to be granted or settled at such times, and under such regulations, as should thereafter be agreed upon by the United States in Congress assembled, or any nine or more of them.[305] The cessions were made under the guaranties of this resolve. Strictly speaking, there was no express constitutional power under which Congress could thus act, either before or after the adoption of the Articles of Confederation. Before that period, if the United States could acquire and hold lands, for any purpose, it could only be by the common attribute of sovereignty belonging to every government. Perhaps this power existed, by implication, in the revolutionary government; but the compact which was to constitute the new government contained no authority for the establishment of new States within the limits of the Union. But when, aside from the Articles of Confederation, and before they had been adopted, the Revolutionary Congress undertook, in 1780, to hold out these inducements to the States, as motives for their adoption of that instrument, and these motives were acted upon and the cessions made, it must be taken that the territory came rightfully into the possession of the United States. Whether the adoption of the Articles, containing no power for the government of such territories, or for the admission of new States into the Union, did not place the new government in a position where, if it acted at all, it would act beyond the scope of its constitutional authority, certainly admitted of grave question.[306] But the acquisition of the territory itself rested upon acts, which were so directly and expressly connected with the establishment of the new Union under the Confederation, as to make the acquisition itself part of the fundamental conditions of that Union, and the principal guaranty of its continuance. Among the declared purposes for which these acquisitions were made, was that of forming them into new States, to be admitted into the Union; and as all the States acquiesced in and embraced this purpose, they may be said to have conferred upon Congress an implied power to legislate to carry it into effect. Still, the want of an express authority in the Articles thus to deal with acquired territory was afterwards felt and insisted upon, as the Confederation drew towards the close of its career.[307] Virginia, in 1781, offered to make a cession to the United States of her title to lands northwest of the Ohio, upon certain conditions, which were not satisfactory, and the subject had not been acted upon in Congress when the revenue system of 1783 was adopted for recommendation to the States. Looking to the prospect of vacant lands, as a means of hastening the extinguishment of the public debts, as well as of establishing the harmony of the Union, Congress accompanied the recommendation of the revenue system by new solicitations to the States which had made no cessions of their public lands, or had made them in part only, to comply fully with the former recommendations. This drew from the State of New Jersey, apprehensive that the offer of Virginia might be accepted, a remonstrance against the cession proposed by that State, as partial, unjust, and illiberal.[308] Congress again took the subject into consideration, examined the conditions which the legislature of Virginia had annexed to their proposed grant, declared some of them inadmissible, and stated the conditions on which the cession could be received.[309] Virginia complied with the terms proposed by Congress, and upon those terms ceded to the United States all right, title, and claim, both of soil and jurisdiction, which the State then had to the territory within the limits of its charter, lying to the northwest of the river Ohio. That magnificent region, in which now lie the powerful States of Ohio, Indiana, Illinois, Michigan, and Wisconsin, became the property of the United States, by a grant of twenty lines, executed in Congress by Thomas Jefferson and three of his colleagues, on the 1st day of March, 1784.[310] Soon after this cession had been completed, Congress passed a resolve for the regulation of the territory that had been or might be ceded to the United States, for the establishment of temporary and permanent governments by the settlers, and for the admission of the new States thus formed into the Union.[311] This resolve provided, that the territory which had been or might be ceded to the United States, after the extinguishment of the Indian title, and when offered for sale by Congress, should be divided into separate States, in a manner specified; that the settlers on such territory, either on their own petition or on the order of Congress, should receive authority to form a temporary government; and that when there should be twenty thousand free inhabitants within the limits of any of the States thus designated, they should receive authority to call a convention of representatives to establish a permanent constitution and government for themselves, provided that both the temporary and permanent governments should be established on these principles, as their basis:--1. That they should for ever remain a part of the Confederacy of the United States of America. 2. That they should be subject to the Articles of Confederation and the acts and ordinances of Congress, like the original parties to that instrument. 3. That they should in no case interfere with the disposal of the soil by Congress. 4. That they should be subject to pay a part of the federal debts, present and prospective, in the same measure of apportionment with the other States. 5. That they should impose no tax upon lands, the property of the United States. 6. That their respective governments should be republican. 7. That the lands of non-resident proprietors should not be taxed higher than those of residents, in any new State, before its delegates had been admitted to vote in Congress. The resolve also contained a provision, which appears to have been designed to meet the want of constitutional power, under the Articles of Confederation, relative to the admission of new States. It was declared, that whenever any of the States thus formed should have as many free inhabitants as the least numerous of the thirteen original States, it should be admitted by its delegates into Congress on an equal footing with the original States, provided the assent of so many States in Congress should be first obtained, as might at the time be competent to such admission. It was further declared, that, in order to adapt the Articles of Confederation to the condition of Congress when it should be thus increased, it should be proposed to the original States, parties to that instrument, to change the rule, which required a vote of nine States, to a vote of two thirds of all the States in Congress; and that when this change had been agreed upon, it should be binding upon the new States. After the establishment of a temporary government, and before its admission into the Union, each of the new States was to have the right to keep a member in Congress, with the privilege of debating, but not of voting. It was also provided, that measures not inconsistent with the principles of the Confederation, and necessary for the preservation of peace and good order among the settlers in any of the said new States, until they had assumed a temporary government, might, from time to time, be taken by the United States in Congress assembled. These provisions were to stand as a charter of compact and as fundamental constitutions between the thirteen original States and each of the new States thus described, unalterable from and after the sale of any part of the territory of such State, but by the joint consent of the United States in Congress assembled, and of the particular State to be affected.[312] New and urgent recommendations followed the passage of this resolve, pressing the States to consider that the war was now happily brought to a close, by the services of the army, the supplies of property by citizens, and loans of money by citizens and foreigners, constituting a body of creditors who had a right to expect indemnification, and that the vacant territory was an important resource for this great object.[313] The subject does not seem to have again occupied the attention of Congress until the spring of the following year, when a proposition was introduced and committed, to exclude slavery and involuntary servitude, otherwise than in punishment of crimes, from the States described in the resolve of April 23d, 1784, and to make this provision part of the compact established by that resolve.[314] Soon afterwards, a cession was made by Massachusetts of all its right and title, both of soil and jurisdiction, to the Western territory lying within the limits of the charter of that State.[315] In the succeeding month, Congress adopted an ordinance for ascertaining the mode of disposing of the Western lands to settlers.[316] In the course of the next year, the cession by Connecticut was made, after various negotiations, with a reservation to that State of the property in a considerable tract of country, since called the Connecticut Reserve, lying to the south of Lake Erie, and now embraced within the State of Ohio.[317] Before this transaction had been completed, it had become manifest, from the knowledge that had been obtained of the country northwest of the Ohio, that it would be extremely inconvenient to lay it out into States of the extent and dimensions described in the resolve of October 10, 1780, under which the cession of Virginia had been made; and the legislature of that State were accordingly asked to modify their act of cession, so as to enable Congress to lay out the territory into not more than five nor less than three States, as the situation and circumstances of the country might require.[318] This suggestion was complied with.[319] A cession by South Carolina then followed, of all its claim to lands lying towards the river Mississippi;[320] but no other cessions were made to the United States under the Confederation; those of Georgia and North Carolina having been made after the adoption of the Constitution.[321] It appears, therefore, that, with the exception of the claims of South Carolina to territory lying due west from that State towards the river Mississippi, the United States, before the 13th of July, 1787, had become possessed of the title to no other territory than that which had been surrendered to them by the States of New York, Virginia, Massachusetts, and Connecticut. The great mass of this territory was that embraced within the cession of Virginia, and lying to the northwest of the river Ohio; and after the whole title to this region, with the exception of some reserved tracts, had become complete in the United States, it was subject to the resolves of 1780 and of 1784. The provisions of the resolve of 1784, however, were soon seen to be inconvenient and inapplicable to the pressing wants of this region. Immediate legislation was plainly demanded for this territory, which could not wait the slow process of forming first temporary and then permanent governments, as had been contemplated by that resolve. Congress had had cast upon it the administration of an empire, exterior to the Confederation, and rapidly filling with people, in which the rights and tenure of property, the preservation of order and tranquillity, and the shaping of its political and social destinies, required instant legislation. This legislation was therefore provided in the celebrated Ordinance for the Government of the Northwestern Territory, enacted July 13, 1787, which was designed to supersede and in terms directly repealed the resolve of 1784. As this fundamental law for a new and unsettled country--at that time a novel undertaking--must always be regarded with interest in every part of the world, and as it lies at the foundation of the civil polity of a sixth part of these United States, its principles and provisions should be carefully examined. The territory was, for the purposes of temporary government, constituted one district, subject to be divided into two, as future circumstances might require. An equal distribution of property among the children of persons dying intestate, with a life estate to the widow in one third of the real and personal estate, was made the law of the territory, until it should be altered by its legislature. Persons of full age were empowered to dispose of their estates by a written will, executed in the presence of three witnesses. Real estates were authorized to be conveyed by deed, executed by a person of full age, acknowledged and attested by two witnesses. Both wills and deeds were required to be registered. Personal property was transferable by delivery. The civil government of the territory was to consist of executive, legislative, and judicial branches. A Governor was to be appointed from time to time by Congress, and to be commissioned for three years, subject to removal; but he was to reside in the district, and to have a freehold estate there in one thousand acres of land, while in the exercise of his office. A Secretary was also to be appointed from time to time by Congress, and to be commissioned for four years, subject to removal, but to reside in the district, and to have a freehold estate there in five hundred acres of land, while in the exercise of his office. There was also to be appointed a court of common law jurisdiction, to consist of three judges, any two of whom should form a court; they were to reside in the district, and to have each a freehold estate there in five hundred acres of land, while in the exercise of their office; their commissions to continue in force during good behavior. The Governor and Judges, or a majority of them, were to adopt and publish in the district such laws of the original States, criminal and civil, as might be necessary and best suited to the circumstances of the district, to be in force in the district until the organization of the General Assembly, unless disapproved by Congress, to whom, from time to time, they should be reported;--but the legislature, when constituted, were to have authority to alter them as they should think fit. Magistrates and other civil officers were to be appointed by the Governor, previous to the organization of the General Assembly, for the preservation of peace and good order. After the organization of the General Assembly, the powers and duties of magistrates and other civil officers were to be regulated and defined by the legislature, but their appointment was to remain with the Governor. For the prevention of crimes and injuries, the laws to be adopted or made were to have force in all parts of the district, and for the execution of process, criminal and civil, the Governor was to make proper divisions of the territory, and to lay out the portions where the Indian titles had been extinguished, from time to time, into counties and townships, subject to future alteration by the legislature. As soon as there should be five thousand free male inhabitants, of full age, in the district, upon giving proof thereof to the Governor, they were to receive authority to elect representatives from their counties or townships, to represent them in the General Assembly. For every five hundred male inhabitants, there was to be one representative; and so on progressively the right of representation was to increase, until the number of representatives should amount to twenty-five, after which their numbers and proportions were to be regulated by the legislature. The qualifications of a representative were to be previous citizenship in one of the United States for three years, and residence in the district, or a residence of three years in the district, with a fee-simple estate, in either case, of two hundred acres of land within the district. The qualifications of electors were to be a freehold in fifty acres of land in the district, previous citizenship in one of the United States, and residence in the district, or the like freehold and two years' residence in the district. The Ordinance then proceeded to state certain fundamental articles of compact between the original States and the people and States in the territory, which were to remain unalterable, except by common consent. The first provided for freedom of religious opinion and worship. The second provided for the right to the writ of _habeas corpus_; for trial by jury; for a proportionate representation in the legislature; for judicial proceedings according to the course of the common law; for offences not capital being bailable; for fines being moderate, and punishments not cruel nor unusual; for no man's being deprived of his liberty or property, but by the judgment of his peers or the law of the land; for full compensation for property taken or services demanded for the public; and that no law should ever be made, or have force in the territory, that should in any manner whatever interfere with or affect private contracts or engagements, previously formed, _bona fide_ and without fraud. The third provided for the encouragement of religion and education, for schools, and for good faith towards the rights and property of the Indian tribes. The fourth provided that the territory and the States to be formed therein should for ever remain a part of the Confederacy, subject to the constitutional authority of Congress; that the inhabitants should be liable to be taxed proportionately for the public expenses; that the legislature in the territory should never interfere with the primary disposal of the soil by Congress, nor with their regulations for securing the title to purchasers; that no tax should be imposed on lands, the property of the United States; that non-resident proprietors should not be taxed more than residents; and that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying-places between them, should be common highways and for ever free. The fifth provided, that there should be formed in the territory not less than three, nor more than five States, with certain boundaries; and that whenever any of the States should contain sixty thousand free inhabitants, such State should be (and might be before) admitted by its delegates into Congress, on an equal footing with the original States in all respects whatever, and should be at liberty to form a permanent constitution and State government, provided it should be republican, and in conformity with these articles of compact. The sixth provided, that there should be neither slavery nor involuntary servitude in the territory, otherwise than in the punishment of crimes; but that fugitives owing service in other States might be reclaimed. American legislation has never achieved any thing more admirable, as an internal government, than this comprehensive scheme. Its provisions concerning the distribution of property, the principles of civil and religious liberty which it laid at the foundation of the communities since established under its sway, and the efficient and simple organization by which it created the first machinery of civil society, are worthy of all the praise that has ever attended it. It was not a plan devised in the closet, upon theoretical principles of abstract fitness. It was a constitution of government drawn by men who understood, from experience, the practical working of the principles which they undertook to embody. Those principles were, it is true, to be applied to a state of society not then formed; but they were taken from states of society in which they had been tried with success. The equal division of property; general, not universal suffrage, but a suffrage guarded by some degree of interest in society; representative government; the division of the three grand departments of political power; freedom of religious opinion and worship; the _habeas corpus_, trial by jury, and the course of the common law; the right to be bailed for offences not capital, and the prohibition of immoderate fines and cruel or unusual punishments; the great principle of compensation for property or service demanded by the public, and the legislative inviolability of contracts; the encouragement of schools and the means of education,--were all taken from the ancient or recent constitutions of States, from which the greater part of the inhabitants of the new territory would necessarily come. A community founded on these principles was predestined to prosperity and happiness. But it was in the provisions of the Ordinance relative to the admission into the Union of the new States to be formed upon this territory, that the relation between the existing government of the United States and its great dependency was afterwards found to involve serious difficulties. The Union was at that time a confederacy of thirteen States, originally formed mainly with reference to the exigencies of the war; and, although the Articles of Confederation had been ratified under circumstances which gave to the United States the authority to acquire this property, they had vested in Congress no power to enlarge the Confederacy by the admission of new States. Yet the Ordinance undertook to declare that new States should be admitted into the Congress of the United States on an equal footing with the existing States in all respects whatever, without proposing to submit that question to the original parties to the Confederacy. It does not appear from contemporary evidence that this difficulty attracted public attention, at the time of the passage of the Ordinance. In the year 1787, the Confederation was laboring under far more pressing and alarming defects than the want of strict constitutional power to create new States. Public attention was consequently more engaged with the consideration of evils which affected the prosperity of the original States themselves, than with the destiny of the new communities, or the method by which they were to be brought into the Union. It was not immediately perceived, also, that a property, capable at no distant day of becoming a vast mine of wealth to the United States, as a great and independent revenue, had come under the management of a single body of men, constituted originally without reference to such a trust, and with no declared constitutional provisions for its administration. When, however, the Constitution was in the process of formation, the necessity for provisions under which Congress could dispose of the public lands, and by which new States could be admitted into the Union, was at once felt and conceded on all sides.[322] Far more serious difficulties, however, attended the management by the Confederation of the interests of the Western country;--difficulties which commenced immediately after the Peace, and continued to increase, until the course taken by Congress had nearly lost to the Union the whole of that immense region which now pours its commerce down the Mississippi and its great tributary waters. These difficulties sprang from the inherent weakness of the federal government,--from the absolute incapacity of Congress, constituted as it was, to deal wisely, safely, and efficiently with the foreign relations of the country and its internal affairs, under the delicate and critical circumstances in which it was then placed. After the Treaty of Peace, the Western settlements, flanked by the dependencies of Great Britain at the north and of Spain at the south, and rapidly filling with a bold, adventurous, and somewhat lawless population, whose ties of connection with the Eastern States were almost sundered by the remoteness of their position and the difficulties of communication, stood upon a pivot, where accident might have thrown them out of the Union. This population found themselves seated in a luxuriant and fertile country, capable of a threefold greater production than the States eastward of the Alleghany and Appalachian Mountains, and intersected by natural water communications of the most ample character, all tending to the great highway of the Mississippi. A soil richer than any over which the Anglo-Saxon race had hitherto spread itself upon this continent, in any of its temperate climes; large plains and meadows, capable, without labor, of supporting millions of cattle; and fields destined to vie with the most favored lands on the globe in the production of wheat, were already accumulating upon the banks of their great rivers a weight of produce far beyond the necessities of subsistence, and loudly demanding the means of reaching the markets of the world. The people of the Atlantic States knew little of the resources or situation of this country. They valued it chiefly as a means of paying the public debts by the sale of its lands; but until they were in imminent danger of losing it, from the inefficiency of the national government, they had little idea of the supreme necessity of securing for it an outlet to the sea, if they would preserve it to the Union. Washington, in the autumn of 1784, after his retirement to Mount Vernon, made a tour into the Western country, for the express purpose of ascertaining by what means it could be most effectually bound to the Union. The policy of opening communications eastward, by means of the rivers flowing through Virginia to the Atlantic Ocean struck him at once. On his return, he addressed a letter to the Governor of the State, in which he recommended the appointment of a commission, to make a survey of the whole means of natural water communication between Lake Erie and the tide-waters of Virginia. He does not seem at this time to have considered the navigation of the Mississippi as of great importance; but he thought rather that the opening of that river would have a tendency to separate the Western from the Eastern States.[323] A year later, he held a clear opinion, that its navigation ought not at present to be made an object by the United States, but that their true policy was to open all the possible avenues between the Atlantic States and the Western territory, and that, until this had been done, the obstructions to the use of the Mississippi had better not be removed.[324] Those obstructions, however, involved the hazard of a loss of the territory to which the navigation of that river had already become extremely important. Their nature is, therefore, now to be explained. The Treaty of Peace with Great Britain recognized, as the southern boundary of the United States, a line drawn from a point where the thirty-first degree of north latitude intersected the river Mississippi, along that parallel due east to the middle of the river Appalachicola; thence along the middle of that river to its junction with the Flint River; thence in a straight line to the head of St. Mary's River; and thence down the middle of that river to the Atlantic Ocean.[325] At the time of the negotiation of this treaty West Florida was in the possession of Spain; and a secret article was executed by the British and American plenipotentiaries, which stipulated that in case Great Britain, at the conclusion of a peace with Spain, should recover or be put in possession of West Florida, the north boundary between that province and the United States should be a line drawn from the mouth of the river Yassous, where it unites with the river Mississippi, due east to the river Appalachicola.[326] The treaty also stipulated, that the navigation of the Mississippi, from its source to the ocean, should for ever remain free and open to the subjects of Great Britain and the citizens of the United States.[327] When the treaty came to be ratified and published, in 1784, the Spanish government was already acquainted with this secret article. Justly assuming that no treaty between Great Britain and the United States could settle the boundaries between the territories of the latter power and those of Spain, or give of itself a right to navigate a river passing wholly through their dominions, they immediately caused it to be signified to Congress, that, until the limits of Louisiana and the two Floridas should be settled and determined, by an admission on the part of Spain that they had been rightfully described in the Treaty with England, they must assert their territorial claims to the exclusive control of the river; and also, that the navigation would under no circumstances be conceded, while Spain held the right to its control.[328] To accommodate these difficulties, Congress resolved to send Mr. Jay, their Secretary of Foreign Affairs, to Spain; but his departure was prevented by the arrival in the United States of Don Diego Guardoqui, as Minister from Spain, charged with the negotiation of a treaty.[329] Preparatory to this negotiation, the first instruction which Mr. Jay received from Congress was, to insist upon the right of the United States to the territorial boundaries and the free navigation of the Mississippi, as settled by their treaty with Great Britain.[330] Upon this point, however, the Spanish Minister was immovable. A long negotiation ensued, in which he evinced entire readiness to make a liberal commercial treaty with the United States, conceding to their trade very important advantages; but at the same time refusing the right to use the Mississippi. Such a treaty was regarded as extremely important to the United States. There was scarcely a single production of this country that could not be advantageously exchanged in the Spanish European ports for gold and silver. The influence of Spain in the Mediterranean, with Portugal, with France, with the States of Barbary, and the trade with her Canaries and the adjacent islands, rendered a commercial alliance with her of the utmost importance. That importance was especially felt by the Eastern and Middle States, whose influence in Congress thus became opposed to the agitation of the subject of opening the Mississippi.[331] Indeed, the prevailing opinion in Congress, at this time, was for not insisting on the right of navigation as a necessary requisite in the treaty with Spain; and there were some important and influential persons in that body ready to agree to the abandonment of the right, rather than defer longer a free and liberal system of trade with a power able to give conditions so advantageous to the United States.[332] The Eastern States considered a commercial treaty with Spain as the best remedy for their distresses, which flowed, as they believed, from the decay of their commerce. Two of the Middle States joined in this opinion. Virginia, on the other hand, opposed all surrender of the right.[333] In this posture of affairs, Mr. Jay proposed to Congress a middle course. Believing, as Washington continued to believe,[334] that the navigation of the Mississippi was not at that time very important, and that it would not become so for twenty-five or thirty years, he suggested that the treaty should be limited to that period, and that one of its articles should stipulate, that the United States would forbear to use the navigation of the river below their territories to the ocean. It was supposed that such a forbearance, carrying no surrender of the right, would, at the expiration of the treaty, leave the whole subject in as favorable a position as that in which it now stood. Besides, the only alternative to obtaining such an article from Spain was to make war with her, and enforce the opening of the river. The experiment, at least, it was argued, would do no injury, and might produce much good.[335] These arguments prevailed, so far as to cause a change in Mr. Jay's instructions, by a vote, which was deemed by him sufficient to confer authority to obtain such an article as he had suggested, but which was clearly unconstitutional. Seven States against five voted to rescind the instructions of August 25, 1785, by which the Secretary had been directed to insist on the right of navigation, and not to conclude or sign any treaty until he had communicated it to Congress.[336] Mr. Jay accordingly agreed with the Spanish Minister on an article which suspended the use of the Mississippi, without relinquishing the right asserted by the United States.[337] While these proceedings were going on, and before the vote of seven States in Congress had been obtained in favor of the present suspension of this difficult controversy, an occurrence took place at Natchez, which aroused the jealousy of the whole West. A seizure was made there, by the Spanish authorities, of certain American property, which had been carried down the river for shipment or sale at New Orleans.[338] The owner, returning slowly in the autumn to his home, in the western part of North Carolina, by a tedious land journey through Kentucky, detailed everywhere the story of his wrongs and of the loss of his adventure. The news of this seizure, as it circulated up the valley from below, encountered the intelligence coming from the eastward, that Congress proposed to surrender the present use of the Mississippi. Alarm and indignation fired the whole population of the Western settlements. They believed themselves to be on the point of being sacrificed to the commercial policy of the Atlantic States; and, feeling that they stood in the relation of colonists to the rest of the Union, they held language not unlike that which the old colonies had held towards England, in the earlier days of the great controversy. They surveyed the magnificent region which they were subduing from the dominion of Nature;--the inexhaustible resources of its soil already yielding an abundance, which needed only a free avenue to the ocean to make them rich and prosperous;--and they felt that the mighty river which swept by them, with a volume of waters capable of sustaining the navies of the world, had been destined by Providence as a natural channel through which the productions of their imperial valley should be made to swell the commerce of the globe. But the Spaniard was seated at the outlet of this noble stream, sullenly refusing to them all access to the ocean. To him they must pay tribute. To enrich him, they must till those luxuriant lands, which gave, by an almost spontaneous production, the largest return which American labor had yet reaped under the industry of its own free hands. Their proud spirits, unaccustomed to restraint, and expanding in a liberty unknown in the older sections of the country, could not brook this vassalage. Into the comprehensive schemes of statesmen, who sought to unite them with the East by a great chain of internal improvements, and thus to blend the interests of the West with the commercial prosperity of the whole country, they were too impatient, and too intent upon the engrossing object of their own immediate advantage, to be able to enter. What, they exclaimed, could have induced the legislature of the United States, which had been applauded for their assertion and defence of the rights and privileges of the country, so soon to endeavor to subject a large part of their dominion to a slavery worse than that to which Great Britain had presumed to subject any part of hers? To give up to the Spaniards the greatest share of the fruits of their toils,--to surrender to them, on their own terms, the produce of that large, rich, and fertile country, and thus to enable them to command the benefits of every foreign market,--was an intolerable thought. What advantage, too, would it be to the Atlantic States, when Spain, from the amazing resources of the Mississippi, could undersell them in every part of the world? Did they think by this course of policy to prevent emigration from a barren country, loaded with taxes and impoverished by debts, to the most luxurious and fertile soil within the limits of the Union? The idea was vain and presumptuous. As well might the fishes of the sea be prevented from gathering on a bank that afforded them ample nourishment. The best and largest part of the United States was not thus to be left uncultivated; a home for savages and wild beasts. Providence had destined it for nobler purposes. It was to be the abode of a great, prosperous, and cultivated people,--of Americans in feeling, in rights, in spirit, incapable of becoming the bondmen of Spain, while the rest of their country remained free. Their own strength could achieve for them what the national power refused or was unable to obtain. Twenty thousand effective men, west of the Alleghanies, were ready to rush to the mouth of the Mississippi, and drive the Spaniards into the sea. Great Britain stood with open arms to receive them. If not countenanced and succored by the federal government, their allegiance would be thrown off, and the United States would find too late that they were as ignorant of the great valley of the Mississippi, as England was of the Atlantic States when the contest for independence began.[339] Such was the feeling that prevailed in the Western country, as soon as it became known that a treaty was actually pending, by which the right to navigate the Mississippi might be suspended for a quarter of a century. That it should have been accompanied by acts of retaliation and outrage against the property of Spanish subjects, was naturally to have been expected. A certain General Clarke, pretending to authority from the State of Virginia, undertook to enlist men and establish a garrison at Port St. Vincennes, ostensibly for the protection of the district of Kentucky, then under the jurisdiction of Virginia. He made a seizure there of some Spanish property for the purpose of clothing and subsisting his men, and sent an officer to the Illinois, to advise the settlers there of the seizures of American property made at Natchez, and to recommend them to retaliate for any outrages the Spaniards might commit upon their property.[340] The executive of Virginia disavowed these acts, as soon as officially informed of them; ordered the parties to be brought to punishment; and sent a formal disclaimer, through their delegates in Congress, to the Spanish Minister.[341] Guardoqui was not disturbed. He expected these occurrences, and maintained his ground, refusing to yield the right of navigating the river; and having assented to Mr. Jay's proposal of an article which suspended the use for a period of twenty-five years, he was quite ready to go on and conclude the treaty. The people of the Western country, however, began to form committees of correspondence, in order to unite their counsels and interests.[342] The inhabitants of Kentucky sent a memorial to the General Assembly of Virginia, which induced them to instruct their delegates in Congress to oppose any attempt to surrender the right of the United States to the free use of the Mississippi, as a dishonorable departure from the comprehensive and benevolent feeling that constituted the vital principle of the Confederation, and as provoking the just resentment and reproaches of the Western people, whose essential rights and interests would be thereby sacrificed. They also instructed their delegates to urge such negotiations with Spain as would obtain her consent to regulations for the mutual and common use of the river.[343] The members from Virginia, with one exception, concurred in the policy of these instructions,[344] and at first addressed themselves to some conciliatory expedient for obviating the effect of the vote of seven States. They first represented to Guardoqui that it would be extremely impolitic, both for the United States and Spain, to make any treaty which should have the effect of shutting up the Mississippi. They stated to him, that such a treaty could not be enforced; that it would be the means of peopling the Western country with increased rapidity, and would tend to a separation of that country from the rest of the Union; that Great Britain would be able to turn the force that would spring up there against Spanish America; and that the result would be the creation of a power in the valley of the Mississippi hostile both to Spain and the United States. These representations produced no impression. The Spanish Minister remained firm in the position which he had held from the first, that Spain never would concede the claim of the United States to navigate the river. He answered, that the result of what had been urged was, that Congress could make no treaty at all, and consequently that the trade of the United States must remain liable to be excluded from the ports of Spain.[345] Foiled in this quarter, the next expedient, for those who felt the necessity of preventing such a treaty as had been contemplated, was to gain time, by transferring the negotiation to Madrid; and Mr. Madison introduced a resolution into Congress for this purpose, which was referred to the Secretary for Foreign Affairs.[346] In a few days, the Secretary reported against the proposal, and nothing remained for the opponents of the treaty, but to attack directly the vote of seven States, under which the Secretary had acted in proceeding to adjust with the Spanish Minister an article for suspending the right of the United States to the common use of the river below their southern boundary. The Articles of Confederation expressly declared, that the United States should not enter into any treaty or alliance, unless nine States in Congress assented to the same.[347] It was very justly contended, therefore, that, to proceed to negotiate a treaty authorized by a vote of only seven States, would expose the United States to great embarrassment with the other contracting party, since the vote made it certain that the treaty could not be constitutionally ratified; and that the vote itself, having passed in a case requiring the assent of nine States, was not valid for the purpose intended by it. This was not denied; but the advocates of the treaty, by means of a parliamentary rule, resisted the introduction of a resolution to rescind the vote of seven States.[348] But while this dangerous subject was pending, the affairs of the country had taken a new turn. The Convention at Annapolis had been held, in the autumn of 1786, and the Convention called to revise the system of the federal government was to meet in May, 1787. It had become sure and plain, that a large increase of the powers of the national government was absolutely essential to the continuance of the Union and the prosperity of the States. Every day the situation of the country was becoming more and more critical. No money came into the federal treasury; no respect was paid to the federal authority; and all men saw and admitted that the Confederation was tottering to its fall. Some prominent persons in the Eastern States were suspected of leaning towards monarchy; others openly predicted a partition of the States into two or more confederacies; and the distrust which had been created by the project for closing the Mississippi rendered it extremely probable, that the Western country at least would be severed from the Union. The advocates of that project recoiled, therefore, from the dangers which they had unwittingly created. They saw, that the crisis required that harmony and confidence should be studiously cherished, now that the great enterprise of remodelling the government upon a firmer basis was to be attempted. They saw that no new powers could be obtained for the Federal Constitution, if the government then existing were to burden itself with an act so certain to be the source of dissension, and so likely to cause a dismemberment of the Confederacy, as the closing of the Mississippi. Like wise and prudent men, therefore, they availed themselves of the expected and probable formation of a new government, as a fit occasion for disposing of this question; and after an effort to quiet the apprehensions that had been aroused, the whole matter was postponed, by general consent, to await the action of the great Convention of May, 1787.[349] After the Constitution had been formed and adopted, the negotiation was formally referred to the new federal government which was about to be organized, in March, 1789, with a declaration of the opinion of Congress that the free navigation of the river Mississippi was a clear and essential right of the United States, and ought to be so considered and supported.[350] FOOTNOTES: [298] October 15, 1777. Secret Journals, I. 328. [299] Ibid. [300] See the account of the adoption of the Confederation, ante, pp. 131-141. [301] Ante, pp. 131-136. [302] October 30, 1779. Journals, V. 401, 402. [303] September 6, 1780. [304] February 19, 1780. [305] October 10, 1780. [306] The Federalist. [307] Ibid. [308] June 20, 1783. [309] September 13, 1783. [310] The granting part of the deed of cession, exclusive of its recitals, is as follows: "That we, the said Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Munroe, by virtue of the power and authority committed to us by the act of the said General Assembly of Virginia before recited, and in the name and for and on behalf of the said Commonwealth, do by these presents convey, transfer, assign, and make over unto the United States in Congress assembled, for the benefit of the said States, Virginia inclusive, all right, title, and claim, as well of soil as of jurisdiction, which the said Commonwealth hath to the territory or tract of country within the lines of the Virginia charter, situate, lying, and being to the northwest of the river Ohio, to and for the uses and purposes, and on the conditions, of the said recited act." The cession was made with the reservation of such a portion of the territory ceded, between the rivers Scioto and Little Miami, as might be required to make up the deficiencies of land on the south side of the Ohio, called the Green River lands, reserved for the Virginia troops on continental establishment. (Journals, IX. 47-49.) Subsequently, the act of cession was altered, so as to admit of the formation of not more than five, nor less than three States, of a size more convenient than that described in the act of cession and in the resolve of October 10, 1780. (Journals, XI. 139, 140. July 9, 1786.) [311] April 23, 1784. Journals, IX. 153. [312] April 23, 1784. Journals, IX. 153. [313] April 29, 1784. Journals, IX. 184. [314] This proposition was introduced by Rufus King, March 16, 1785, and was committed by the votes of _eight_ States against _four_. [315] April 19, 1785. [316] May 20, 1785. [317] September 14, 1786. Journals, XI. 221-223. The deed of cession, and the act of Connecticut recited in it, do not disclose this reservation. The territory ceded is described by certain lines which include less than the whole claim of Connecticut. It appears from the Journals, under the date of May 22-26, 1786, and from various propositions considered between those dates, that the State of Connecticut claimed to own a larger extent of territory than she proposed to cede; and by way of compromise, her claim was so far acceded to, that Congress agreed to accept of a cession of less than the whole. The reservation embraced about six millions of acres. See Sparks's Washington, IX. 178, note, where it appears that the right of the State to this territory was considered very feeble at the time. [318] July 9, 1786. [319] December 30, 1788. [320] August 9, 1789. [321] That of North Carolina was made February 25, 1790, and that of Georgia, April 24, 1802. [322] See Mr. Madison's notes of the Debates in the Confederation. Elliot, V. 128, 157, 190, 211, 376, 381. [323] His recommendation contemplated a survey of James River and the Potomac, from tide-water to their respective sources; then to ascertain the best portage between those rivers and the streams capable of improvement which run into the Ohio; then to traverse and survey those streams to their junction with the Ohio; then, passing down the Ohio to the mouth of the Muskingum, to ascend that river to the carrying-place to the Cuyahoga; then down the Cuyahoga to Lake Erie, and thence to Detroit. He also advised a survey of Big Beaver Creek, and of the Scioto, and of all the waters east and west of the Ohio, which invited attention by their proximity and the ease of land transportation between them and the James and Potomac Rivers. "These things being done," he said, "I shall be mistaken if prejudice does not yield to facts, jealousy to candor, and finally, if reason and nature, thus aided, do not dictate what is right and proper to be done." (Writings of Washington, IX. 65.) This suggestion was adopted, and a commission appointed. [324] Writings, IX. 63, 117-119. August 22, 1785. [325] Article II. Journals, IX. 26. [326] Executed November 30, 1782. Secret Journals, III. 338. [327] Article VIII. Journals, IX. 29. [328] June 25, 1784. Communicated to Congress November 19, 1784. Secret Journals, III. 517, 518. [329] Guardoqui arrived and was recognized July 2, 1785. Secret Journals, III. 563. [330] August 25, 1785. Secret Journals, III. 585, 586. [331] See the communication made by Mr. Jay to Congress, August 3, 1786. Secret Journals, IV. 43. [332] Henry Lee, then in Congress, wrote to Washington on the 3d of July, 1786, as follows: "Your reasoning is perfectly conformable to the prevalent doctrine on that subject in Congress. We are very solicitous to form a treaty with Spain for commercial purposes. Indeed, no nation in Europe can give us conditions so advantageous to our trade as that kingdom. The carrying business they are like ourselves in, and this common source of difficulty in adjusting commercial treaties between other nations does not apply to America and Spain. But, my dear General, I do not think you go far enough. Rather than defer longer a free and liberal system of trade with Spain, why not agree to the exclusion of the Mississippi? This exclusion will not, cannot, exist longer than the infancy of the Western emigrants. Therefore, to these people what is now done cannot be important. To the Atlantic States it is highly important; for we have no prospect of bringing to a conclusion our negotiations with the court of Madrid, but by yielding the navigation of the Mississippi. Their Minister here is under positive instructions on that point. In all other arrangements, the Spanish monarch will give to the States testimonies of his regard and friendship. And I verily believe, that, if the above difficulty should be removed, we should soon experience the advantages which would flow from a connection with Spain." (Writings of Washington, IX. 173, note.) [333] Washington's Writings, IX. 205, 206, note. [334] Washington had not changed his opinion, at the time of these negotiations. On the 18th of June, 1786, he wrote to Henry Lee, in answer to his letter above quoted: "The advantages with which the inland navigation of the rivers Potomac and James is pregnant, must strike every mind that reasons upon the subject; but there is, I perceive, a diversity of sentiment respecting the benefits and consequences which may flow from the free and immediate use of the Mississippi. My opinion of this matter has been uniformly the same; and no light in which I have been able to consider the subject is likely to change it. It is, neither to relinquish nor to push our claim to this navigation, but in the mean while to open _all_ the communications which Nature has afforded between the Atlantic States and the Western territory, and to encourage the use of them to the utmost. In my judgment, it is matter of very serious concern to the well-being of the former to make it the interest of the latter to trade with them; without which, the ties of consanguinity, which are weakening every day, will soon be no bond, and we shall be no more, a few years hence, to the inhabitants of that country, than the British and Spaniards are at this day; not so much, indeed, because commercial connections, it is well known, lead to others, and united are difficult to be broken. These must take place with the Spaniards, if the navigation of the Mississippi is opened. Clear I am, that it would be for the interest of the Western settlers, as low down the Ohio as the Big Kenhawa, and back to the Lakes, to bring their produce through one of the channels I have named; but the way must be cleared, and made easy and obvious to them, or else the ease with which people glide down streams will give a different bias to their thinking and acting. Whenever the new States become so populous and so extended to the westward as really to need it, there will be no power which can deprive them of the use of the Mississippi. Why, then, should we prematurely urge a matter which is displeasing, and may produce disagreeable consequences, if it is our interest to let it sleep? It may require some management to quiet the restless and impetuous spirits of Kentucky, of whose conduct I am more apprehensive in this business than I am of all the opposition that will be given by the Spaniards." (IX. 172, 173.) On the 26th of July of the same year, he again wrote to the same gentleman, expressing the same opinions; and on the 31st of October, he said that these sentiments "are controverted by only one consideration of weight, and that is, the operation which the occlusion of the river may have on the minds of the Western settlers, who will not consider the subject in a relative point of view, or on a comprehensive scale, and may be influenced by the demagogues of the country to acts of extravagance and desperation, under the popular declamation, that their interests are sacrificed." In July, 1787, he retained the same views as to the true policy of the different sections of the country interested in this question, but admitted that, from the spirit manifested at the West, it had become a moot point to determine, when every circumstance was brought into view, what was best to be done. (IX. 172, 180, 205, 261.) [335] See Mr. Jay's reasoning, Secret Journals, IV. 53, 54. [336] August 29, 1786. Secret Journals, IV. 109, 110. The States which voted to rescind these instructions were New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, and Maryland; Virginia, North and South Carolina, and Georgia, voted not to rescind. Another resolution was carried on the following day (August 30), by the votes of seven States, instructing the Secretary to insist on the territorial limits or boundaries of the United States, as fixed in the Treaty with Great Britain, and not to form any treaty with the Spanish Minister, unless those boundaries were acknowledged and secured. Ibid. 111-116. [337] This agreement was made between the 29th of August, the date of the rescinding resolution, and the 6th of October, 1786. See Mr. Jay's communication to Congress under the latter date, Secret Journals, IV. 297-301. [338] This seizure was made on the 6th of June, 1786. Secret Journals, IV. 325. [339] See the documents laid before Congress, April 13, 1787. Secret Journals, IV. 315-328. On the 30th of January, 1787, Mr. Jefferson thus writes to Mr. Madison, from Paris: "If these transactions give me no uneasiness, I feel very differently at another piece of intelligence, to wit, the possibility that the navigation of the Mississippi may be abandoned to Spain. I never had any interest westward of the Alleghany; and I never will have any. But I have had great opportunities of knowing the character of the people who inhabit that country; and I will venture to say, that the act which abandons the navigation of the Mississippi is an act of separation between the Eastern and Western country. It is a relinquishment of five parts out of eight of the territory of the United States; an abandonment of the fairest subject for the payment of our public debts, and the chaining those debts on our own necks, _in perpetuam_. I have the utmost confidence in the honest intentions of those who concur in this measure; but I lament their want of acquaintance with the character and physical advantages of the people, who, right or wrong, will suppose their interests sacrificed on this occasion to the contrary interests of that part of the Confederacy in possession of present power. If they declare themselves a separate people, we are incapable of a single effort to retain them. Our citizens can never be induced, either as militia or as soldiers, to go there to cut the throats of their own brothers and sons, or rather, to be themselves the subjects instead of the perpetrators of the parricide. Nor would that country quit the cost of being retained against the will of its inhabitants, could it be done. But it cannot be done. They are able already to rescue the navigation of the Mississippi out of the hands of Spain, and to add New Orleans to their own territory. They will be joined by the inhabitants of Louisiana. This will bring on a war between them and Spain; and that will produce the question with us, whether it will not be worth our while to become parties with them in the war, in order to reunite them with us, and thus correct our error. And were I to permit my forebodings to go one step further, I should predict that the inhabitants of the United States would force their rulers to take the affirmative of that question. I wish I may be mistaken in all these opinions." (Jefferson, II. 87.) [340] Secret Journals, IV. 311-313. [341] February 28, 1787. [342] Madison. Elliot's Debates, V. 97. [343] These instructions were adopted in November, 1786. Pitkin, II. 207. They were laid before Congress, April 19, 1787. Madison. Elliot's Debates, V. 103. [344] Henry Lee did not approve of this policy. See Washington's Works, IX. 205, note. [345] See Madison's account of two interviews with Guardoqui, March 13 and 19, 1787. Elliot, V. 98, 100. At the first of these interviews, Guardoqui stated that he had had no conference with Mr. Jay since the previous October, and never expected to confer with him again. [346] April 18, 1787. Madison. Elliot, V. 102. On the next day (April 19) the instructions of Virginia were laid before Congress, but a motion to refer them also to the Secretary was lost, Massachusetts and New York voting against it, and Connecticut being divided. Ibid. When Mr. Jay's report came under consideration, Mr. Gorham of Massachusetts, according to Madison, avowed his opinion, that the shutting of the Mississippi would be advantageous to the Atlantic States, and wished to see it shut. Ibid. 103. [347] Article IX. [348] Madison. Elliot, V. 104, 105. [349] Ibid. [350] September 16, 1788. Secret Journals, IV. 449-454. CHAPTER VI. 1783-1787. DECAY AND FAILURE OF THE CONFEDERATION.--PROGRESS OF OPINION.--STEPS WHICH LED TO THE CONVENTION OF 1787.--INFLUENCE AND EXERTIONS OF HAMILTON.--MEETING OF THE CONVENTION. The prominent defects in the Confederation, which have been described in the previous chapters, and which were so rapidly developed after the treaty of 1783, made it manifest, that a mere league between independent States, with no power of direct legislation, was not a government for a country like this, in a time of peace. They showed, that this compact between the States, without any central arbiter to declare or power to enforce the duties which it involved, could not long continue. It had, indeed, answered the great purpose of forming the Union, by bringing the States into relations with each other, the continuance of which was essential to liberty; since nothing could follow the rupture of those relations but the reëstablishment of European power, or the native despotism which too often succeeds to civil commotion. By creating a corporate body of confederate States, and by enabling them to go into the money-markets of Europe for the means of carrying on and concluding the war, the Confederation had made the idea and the necessity of a Union familiar to the popular mind. But the purposes and objects of the war were far less complex and intricate than the concerns of peace. It was comparatively easy to borrow money. It was another thing to pay it. The federal power, under the Confederation, had little else to do, before the peace, than to administer the concerns of an army in the field, and to attend to the foreign relations of the country, as yet not complicated with questions of commerce. But the vast duties, capable of being discharged by no other power, which came rapidly into existence before the creation of the machinery essential to their performance, exhibited the Confederation in an alarming attitude. It was found to be destitute of the essence of political sovereignty,--the power to compel the individual inhabitants of the country to obey its decrees. It was a system of legislation for States in their corporate and collective capacities, and not for the individuals of whom those States were composed. It could not levy a dollar by way of impost or assessment upon the property of a citizen. It had no means of annulling the action of a State legislature, which conflicted with the lawful and constitutional requirements of Congress. It made treaties, and was forced to stand still and see them violated by its own members, for whose benefit they had been made. It owed an enormous debt, and saw itself, year by year, growing more and more unable to liquidate even the annually increasing interest. It stood in the relation of a protector to the principles of republican liberty on which the institutions of the States were founded, and on the first occurrence of danger, it stretched forward only a palsied arm, to which no man could look for succor. It undertook to rescue commerce from the blighting effects of foreign policy, and failed to achieve a single conspicuous and important advantage. Every day it lost something of respect abroad and of confidence at home, until all men saw, with Washington, that it had become a great shadow without the substance of a government; while few could even conjecture what was to rise up and supplant it. Few men could see, amidst the decay of empire and the absolute negation of all the vital and essential functions of government, what was to infuse new life into a system so nearly effete. Yet the elements of strength existed in the character of the people; in the assimilation, which might be produced, in the lapse of years, by a common language, a common origin, and a common destiny;--in the almost boundless resources of the country;--and, above all, in the principles of its ancient local institutions, that were capable, to an extent not then conceived, of expansion and application to objects of far greater magnitude than any which they had yet embraced. Through what progress of opinion the people of this country were enabled to grasp and combine these elements into a new system, which could satisfy their wants, we must now inquire. In this inquiry, the student of political history should never fail to observe, that the great difficulty of the case, which made it so complex and embarrassing, arose from the separate, sovereign, and independent existence of the States. The formation of new constitutions, in countries not thus divided, involves only the adaptation of new institutions and forms to the genius, the laws, and the habits of the people. The monarchy of France has, in our day, been first remodelled, and afterwards swept from the face of Europe, to be followed by a republican constitution, which has in its turn been crushed and superseded. But France is a country that has long been subjected to as complete and powerful a system of centralization as has existed anywhere since the most energetic period of the Roman empire; and whether its institutions of government have or have not needed to be changed, as they have been from time to time, those changes have been made in a country in which an entire political unity has greatly facilitated the operation. In the United States, on the contrary, a federal government was to be created; and it was to be created for thirteen distinct communities;--a government that should not destroy the political sovereignties of the States, and should yet introduce a new sovereignty, formed by means of powers, whose surrender by the States, instead of weakening their present strength, would rather develop and increase it. This peculiar difficulty may be constantly traced, amidst all the embarrassments of the period in which the fundamental idea of the Constitution was at length evolved. The progress of opinion and feeling in this country, on the subject of its government, from the peace of 1783 to the year 1787, may properly be introduced by a brief statement of the political tendencies of two principal classes of men. All contemporary evidence assures us that this was a period of great pecuniary distress, arising from the depreciation of the vast quantities of paper money issued by the Federal and State governments; from rash speculations; from the uncertain and fluctuating condition of trade; and from the great amount of foreign goods forced into the country as soon as its ports were opened. Naturally, in such a state of things, the debtors were disposed to lean in favor of those systems of government and legislation which would tend to relieve or postpone the payment of their debts; and as such relief could come only from their State governments, they were naturally the friends of State rights and State authority, and were consequently not friendly to any enlargement of the powers of the Federal Constitution. The same causes which led individuals to look to legislation for irregular relief from the burden of their private contracts, led them also to regard public obligations with similar impatience. Opposed to this numerous class of persons were all those who felt the high necessity of preserving inviolate every public and private obligation; who saw that the separate power of the States could not accomplish what was absolutely necessary to sustain both public and private credit; and they were as naturally disposed to look to the resources of the Union for these benefits, as the other class were to look in an opposite direction. These tendencies produced, in nearly every State, a struggle, not as between two organized parties, but one that was all along a contest for supremacy between opposite opinions, in which it was at one time doubtful to which side the scale would turn.[351] The three most important centres of opinion in the Union, before the formation of the Constitution, were Massachusetts, Virginia, and New York.[352] The public proceedings of each of them, in the order of time, on the subject of enlarging the federal powers, are, therefore, important to a just understanding of the course of events which ended in the calling of the Convention. The legislature of Massachusetts was assembled in the summer of 1785. The proposal of Congress, made to the States in 1784, to grant the power of regulating trade, had been responded to by only four of the States, and the negotiations in Europe were failing from the want of it. Great uneasiness and distress pervaded all the commercial classes, and extended to every other class capable of being affected by a state of things in which a large balance, occasioned by the extravagant importation and use of foreign manufactures, was thrown against the country. The money of the State was rapidly drawn off to meet this balance, which its other exhausted means of remittance could not satisfy. It was impossible for the State to recover its former prosperity, while Great Britain and other nations continued the commercial systems which they had adopted. It had become plain to the comprehension of all intelligent persons concerned in trade, that nothing could break up those systems so long as the United States were destitute of the same power to regulate their foreign trade, by admitting or excluding foreign vessels and cargoes according to their interests; and it needed only the popular expression of this palpable truth, enforced by a clear and decided executive message, to induce the legislature to act upon it.[353] Governor Bowdoin gave the necessary impulse, and suggested the appointment of special delegates from the States to settle and define the powers with which Congress ought to be invested.[354] This message caused the adoption of the first resolution, passed by the legislature of any State, declaring the Articles of Confederation to be inadequate to the great purposes which they were originally designed to effect, and recommending a convention of delegates from all the States, for the purpose of revising them, and reporting to Congress how far it might be necessary to alter or enlarge the powers of the Federal Union, in order to secure and perpetuate its primary objects. Congress was requested by these resolves to recommend such a convention. A letter, urging the importance of the subject, was addressed by the Governor of Massachusetts to the President of Congress, and another to the executive of each of the other States. The resolves were also inclosed to the delegates of the State in Congress, with instructions to lay them before that body at the earliest opportunity, and to make every exertion to carry them into effect.[355] They were, however, never presented to Congress. That body was wholly unprepared for such a step, and the delegation of Massachusetts were entirely opposed to it, as premature. It had been all along the policy of Congress to obtain only a grant of temporary power over commerce, and to this policy they were committed by their proposition, now pending with the legislatures of the States, and by the instructions of the commissioners whom they had sent to Europe to negotiate commercial treaties. The prevalent idea in Congress was, that at the expiration of fifteen years,--the period for which they had asked the States to grant them power over commerce,--a new commercial epoch would commence, when the States would have a more clear and comprehensive view of their interests, and of the best means for promoting them, whether by treaties abroad, or by the delegation and exercise of greater power at home. It was argued, also, that the most safe and practicable course was, to grant temporary power in the first instance, and to leave the question of its permanent adoption as a part of the Confederation to depend on its beneficial effects. Another objection, which afterwards caused serious difficulty, was, that the Articles of Confederation contained no provision for their amendment by a convention, but that changes should originate in Congress and be confirmed by the State legislatures, and that, if the report of a convention should not be adopted by Congress, great mischiefs would follow. But a deep-seated jealousy in Congress of the radical changes likely to be made in the system of government lay at the foundation of these objections. There was an apprehension that the Convention might be composed of persons favorable to an aristocratic system; or that, even if the members were altogether republican in their views, there would be great danger of a report which would propose an entire remodelling of the government. The delegation from Massachusetts, influenced by these fears, retained the resolutions of the State for two months, and then replied to the Governor's letter, assigning these as their reasons for not complying with the directions given to them.[356] The legislature of Massachusetts thereupon annulled their resolutions recommending a Convention.[357] It is manifest from this occurrence, that Congress in 1785 were no more in a condition to take the lead and conduct the country to a revision of the Federal Constitution, than they were in 1783, when Hamilton wished to have a declaration made of its defects, and found it impracticable. There were seldom present more than five-and-twenty members; and, at the time when Massachusetts proposed to call upon them to act upon this momentous subject, the whole assembly embraced as little eminent talent as had ever appeared in it. They were not well placed to observe that something more than "the declamation of designing men" was at work, loosening the foundations of the system which they were administering.[358] They saw some of its present inconveniences; but they did not see how rapidly it was losing the confidence of the country, of which the following year was destined to deprive it altogether. Before the year 1785 had closed, however, Virginia was preparing to give the weight of her influence to the advancing cause of reform. A proposition was introduced into the House of Delegates of Virginia, to instruct the delegates of the State in Congress to move a recommendation to all the States to authorize Congress to collect a revenue by means of duties uniform throughout the United States, for a period of thirteen years.[359] The absolute necessity for such a system was generally admitted; but, as in Massachusetts, the opinions of the members were divided between a permanent grant of power and a grant for a limited term. The advocates of the limitation, arguing that the utility of the measure ought to be tested by experiment, contended, that a temporary grant of commercial powers might be and would be renewed from time to time, if experience should prove its efficacy. They forgot that the other powers granted to the Union, on which its whole fabric rested, were perpetual and irrevocable; and that the first sacrifices of sovereignty made by the States had been the result of circumstances which imperatively demanded the surrender, just as the situation of the country now demanded a similar surrender of an irrevocable power over commerce. The proposal to make this grant temporary only, was a proposal to engraft an anomaly upon the other powers of the Confederacy, with very little prospect of its future renewal; for the caprice, the jealousy, and the diversity of interests of the different States, were obstacles which the scheme of a temporary grant could only evade for the present, leaving them still in existence when the period of the grant should expire. But the arguments in favor of this scheme prevailed, and the friends of the more enlarged and liberal system, believing that a temporary measure would stand afterwards in the way of a permanent one, and would confirm the policy of other countries founded on the jealousies of the States, were glad to allow the subject to subside, until a new event opened the prospect for a more efficient plan.[360] The citizens of Virginia and Maryland, directly interested in the navigation of the rivers Potomac and Pocomoke, and of the Bay of Chesapeake, had long been embarrassed by the conflicting rights and regulations of their respective States; and, in the spring of 1785, an effort at accommodation was made, by the appointment of commissioners on the part of each State to form a compact between them for the regulation of the trade upon those waters. These commissioners assembled at Alexandria in March, and while there made a visit at Mount Vernon, where a further scheme was concerted for the establishment of harmonious commercial regulations between the two States.[361] This plan contemplated the appointment of other commissioners, having power to make arrangements, with the assent of Congress, for maintaining a naval force in the Chesapeake, and also for establishing a tariff of duties on imports, to be enacted by the legislatures of both the States. A report, embracing this recommendation, was accordingly made by the Alexandria commissioners to their respective governments. In the legislature of Virginia this report was received while the proposition for granting temporary commercial powers to Congress was under consideration; and it was immediately followed by a resolution directing that part of the plan which respected duties on imports to be communicated to all the States, with an invitation to send deputies to the meeting. In a few days afterwards, the celebrated resolution of Virginia, which led the way to the Convention at Annapolis, was adopted by the legislature, directing the appointment of commissioners to meet with the deputies of all the other States who might be appointed for the same purpose, to consider the whole subject of the commerce of the United States.[362] The circular letter which transmitted this resolution to the several States proposed that Annapolis in the State of Maryland should be the place, and that the following September should be the time of meeting. The fate of this measure now turned principally upon the action of the State of New York. The power of levying a national impost, proposed in the revenue system of 1783, had been steadily withheld from Congress by the legislature of that State. Ever since the peace, the State had been divided between two parties, the friends of adequate powers in Congress, and the adherents of State sovereignty; and the belief that the commercial advantage of the State depended upon retaining the power to collect their own revenues, had all along given to the latter an ascendency in the legislature. In 1784, they established a custom-house and a revenue system of their own. In 1785, a proposition to grant the required powers to Congress was lost in the Senate; and in 1786, it became necessary for Congress to bring this question to a final issue. Three other States, as we have seen, stood in the same category with New York, having decided in favor of no part of the plan which Congress had so long and so repeatedly urged upon their adoption.[363] Declaring, therefore, that the crisis had arrived when the people of the United States, by whose will and for whose benefit the federal government was instituted, must decide whether they would support their work as a nation, by maintaining the public faith at home and abroad, or whether, for want of a timely exertion in establishing a general revenue system, and thereby giving strength to the Confederacy, they would hazard the existence of the Union and the privileges for which they had contended,--Congress left the responsibility of the decision with the legislatures of the States.[364] It was now that the influence of Hamilton upon the destinies of this country began to be favored by the events which had brought its affairs to the present juncture. To his sagacious and watchful forecast, the proposal of a commercial convention, emanating from Virginia, presented the opportunity which he had long desired, to effect an entire change in the system of the federal government; while, at the same time, the final appeal made by Congress for the establishment of the revenue system gave him an occasion to bring the State of New York into the movement which had been originated by Virginia. He determined that this system should be again presented to the legislature, for distinct approval or rejection, and that, if it should be rejected, the State should still send a representation to the Convention at Annapolis. He therefore caused the revenue system, as proposed by Congress, to be again brought before the legislature, where it was again rejected; and he and his friends then threw their whole influence in favor of the appointment of commissioners to attend the commercial convention, and succeeded,--Hamilton himself being appointed one of them.[365] This great step having been taken, the course of the State of New York upon the revenue system of 1783, which brought her at length to an open controversy with Congress, tended strongly to aid the plans of Hamilton, and finally gave him the ascendency in the State itself. The legislature, in May, 1786, passed an act for granting imposts and duties to the United States, and soon afterwards adjourned. It was immediately pronounced by Congress not to be a compliance with their recommendation, and the Governor was earnestly requested to reassemble the legislature. This he declined to do, upon the ground of a want of constitutional power. Congress again urged the summoning of the legislature, for the purpose of granting the system of impost in such a manner as to enable them to carry it into effect, and the Governor again refused.[366] Arrived at Annapolis, Hamilton found there the representatives of five States only.[367] He had come with the determination that the Convention should lay before the country the whole subject of the condition of the States and the want of an efficient federal government. But the avowed purpose of the meeting was solely to consider the means of establishing a uniform system of commercial regulations, and not to reform the existing government of the Union. New Jersey alone, of the five States represented, had empowered her commissioners to consider of "other important matters," in addition to the subject of commercial regulations. Four other States had appointed commissioners, none of whom had attended; and the four remaining States had made no appointments at all.[368] Under these circumstances, it was certainly a matter of great delicacy for the commissioners of five States only to pass upon the general situation of the Union, and to pronounce its existing government defective and insufficient. Hamilton, however, felt that this opportunity, once lost, might never occur again; and although willing to waive his original purpose of a full exposition of the defects of the Confederation, he did not deem it expedient that the Convention should adjourn without proposing to the country some measure that would lead to the necessary reforms. He modified his original plan, therefore, and laid before his colleagues a report, which formally proposed to the several States the assembling of a general convention, to take into consideration the situation of the United States. In this document, it was declared that the regulation of trade, which had been made the object of the meeting at Annapolis, could not be effected alone, for the power of regulating commerce would enter so far into the general system of the federal government, that it would require a corresponding adjustment of the other parts of the system. That the system of the general government was seriously defective; that those defects were likely to be found greater on a close inspection; that they were the cause of the embarrassments which marked the state of public affairs, foreign and domestic; and that some mode by which they could be peaceably supplied was imperatively demanded by the public necessities,--were propositions which the country was then prepared to receive. A convention of deputies from the different States, for the special and sole purpose of investigating the defects of the national government, seemed to be the course entitled to preference over all others.[369] It was indeed the only method by which the object of the great statesman who drafted this report could have been reached. The Articles of Confederation had provided, that they should be inviolably observed by every State; that the Union should be perpetual; and that no alteration should be made in any of the Articles, unless agreed to in a Congress of the United States, and confirmed by the legislature of every State.[370] To have left the whole subject to the action of Congress would have insured, at most, only a change in some of the features of the existing government, instead of the great reform which Hamilton believed to be essential,--the substitution of a totally different system. At the same time, the coöperation and assent of Congress were necessary to the success of the plan of a convention, in order that it might not seem to be a violent departure from the provisions of the Articles of Confederation, and also for the sake of their influence with the States. The proposal of the report was therefore cautious. It did not suggest the summoning of a convention to frame a new constitution of government, but "to devise such further provisions as might appear to be necessary to render the constitution of the federal government adequate to the exigencies of the Union." It proposed also, that whatever reform should be agreed on by the convention should be reported to Congress, and, when agreed to by them, should be confirmed by the _legislatures_ of all the States. In this manner, the proposal avoided any seeming violence to the Articles of Confederation, and suggested the convention as a body to prepare for the use of Congress a plan to be adopted by them for submission to the States.[371] At the same time, Hamilton undoubtedly contemplated more than any amendment of the existing constitution. In 1780, he had analyzed the defects of the general government, sketched the outline of a Federal Constitution, and suggested the calling of a convention to frame such a system.[372] The idea of such a convention was undoubtedly entertained, by many persons, before the meeting at Annapolis. It had been recommended by the legislature of New York in 1782, and by that of Massachusetts in 1785. But Hamilton had foreseen its necessity in 1780, more than seven years before the meeting at Annapolis; and, although he may not have been the author of the first public proposal of such a measure, his private correspondence contains the first suggestion of it, and proves that he had conceived the main features of the Constitution of the United States, even before the Confederation itself was established.[373] The recommendation of the Annapolis commissioners was variously received. In the legislature of Virginia it met with a cordial approval, and an act was passed during the autumn to provide for the appointment of delegates to the proposed convention. In Congress, it was received at first with little favor. Doubts were entertained there whether any changes in the federal government could be constitutionally made, unless they were to originate in Congress and were then to be adopted by the legislatures of the States, pursuant to the mode provided by the Articles of Confederation. The legislatures, it was argued, could not adopt any scheme that might be proposed by a convention; and if it were submitted to the people, it was not only doubtful what degree of assent on their part would make it valid, but it was also doubtful whether they could change the Federal Constitution by their own direct action. To these difficulties was to be added the further hazard, that, if the report of the convention should be made to Congress, as proposed, they might not finally adopt it, and if it should be rejected, that fatal consequences would ensue.[374] The report of the Annapolis commissioners was, however, taken into consideration; and in the course of the following winter a report upon it was made in Congress, which conceded the fact that the Confederation required amendments, and that the proposed convention was the most eligible mode of effecting them.[375] But this report had to encounter the objection, entertained by many members, that the measure proposed would tend to weaken the federal authority, by lending the sanction of Congress to an extra-constitutional proceeding. Others considered that a more summary mode of proceeding was advisable, in the form of a direct appeal to the people of every State to institute State conventions, which should choose delegates to a general convention, to revise and amend, or change, the federal system, and to publish the new constitution for general observance, without any reference to the States, for their acceptance or confirmation.[376] There were still others, who preferred that Congress should take up the defects of the existing system, point them out to the legislatures of the States, and recommend certain distinct alterations to be adopted by them.[377] It was no doubt true, that a convention originating with the State legislatures was not a mode pointed out by the Articles of Confederation for effecting amendments to that instrument. But it was equally true, that the mere amendment of that instrument was not what the critical situation of the country required. On the other hand, a convention originating with the people of the States would undoubtedly rest upon the authority of the people, in its inception; but, if the system which it might frame were to go into operation without first being adopted by the people, it would as certainly want the true basis of their consent. These difficulties were felt in and out of Congress. But it does not seem to have occurred to those who raised them, that the source from which the convention should derive its powers to frame and recommend a new system of government was of far less consequence, than that the mode in which the system recommended should be adopted, should be one that would give it the full sanction and authority of the people themselves. A constitution might be framed and recommended by any body of individuals, whether instituted by the legislatures or by the people of the States; but if adopted and ordained by the States in their corporate capacities, it would rest on one basis, and if adopted and ordained by the people of the States, acting upon it directly and primarily, it would obviously rest upon another, a different, and a higher authority. The latter mode was not contemplated by Congress when they acted upon the recommendation of the Annapolis commissioners. Accustomed to no other idea of a union than that formed by the States in their corporate capacities as distinct and sovereign communities; belonging to a body constituted by the States, and therefore officially related rather to the governments than to the people of the States; and entertaining a becoming and salutary fear of departing from a constitution which they had been appointed to administer,--the members of the Congress of 1786-87 were not likely to go beyond the Annapolis recommendation, which in fact proposed that the new system should be confirmed by the legislatures of the States. But the course of events tended to a different result,--to an actual, although a peaceable revolution, by the quiet substitution of a new government in place of the old one, and resting upon an entirely different basis. While Congress were debating the objections to a convention, the necessity for action became every day more stringent. The insurrection in Massachusetts, which had followed the meeting of the commissioners at Annapolis and had reached a dangerous crisis when their report was before Congress, had alarmed the people of the older States by the dangers of an anarchy with which the existing national government would be obviously unable to cope. The peril of losing the navigation of the Mississippi, and with it the Western settlements, through the inefficiency of Congress, was also at that moment impending; while, at the same time, the commerce of the country was nearly annihilated by a course of policy pursued by England, which Congress was utterly unable to encounter. Under these dangers and embarrassments, a state of public opinion was rapidly developed, in the winter of 1787, which drove Congress to action. The objections to the proposal before them yielded gradually to the stern requirements of necessity, and a convention was at last accepted, not merely as the best, but as the only practicable, mode of reaching the first great object by which an almost despairing country might be reassured of its future welfare. The final change in the views of Congress in regard to a convention was produced by the action of the legislature of New York. In that body, as we have seen, the impost system had been rejected, in the session of 1786, and the Governor of the State had even refused to reassemble the legislature for the reconsideration of this subject. A new session commenced in January, 1787, in the city of New York, where Congress was also sitting. A crisis now occurred, in which the influence of Hamilton was exerted in the same manner that it had been in the former session, and with a similar result. On that occasion he had followed up the rejection of the impost system with a resolve for the appointment of commissioners to attend the meeting at Annapolis. It was now his purpose, in case the impost system should be again rejected, to obtain the sanction of Congress to the recommendation of a convention, made by the Annapolis commissioners. This, he was aware, could be effected only by inducing the legislature of New York to instruct the delegates of their State in Congress to move and vote for that decisive measure. The majority of the members of Congress were indisposed to adopt the plan of a convention; and although they might be brought to recommend it at the instance of a State, they were not inclined to do so spontaneously.[378] The crisis required, therefore, all the address of Hamilton and of the friends of the Union, to bring the influence of one of these bodies to bear upon the other. The reiterated recommendation by Congress of the impost system, now addressed solely to the State of New York, who remained alone in her refusal, necessarily occupied the earliest attention of the new legislature.[379] A warm discussion upon a bill introduced for the purpose of effecting the grant as Congress had asked for it, ended, on the 15th of February, in its defeat. The subject of a general convention of the States, according to the plan of the Annapolis commissioners, was then before Congress, on the report of a grand committee;[380] and Congress were hesitating upon its expediency. At this critical juncture, Hamilton carried a resolution in the legislature of New York, instructing the delegates of that State in Congress to move for an act recommending the States to send delegates to a convention for the purpose of revising the Articles of Confederation, which, four days afterwards, was laid before Congress.[381] Virginia and North Carolina had already chosen delegates to the Convention, in compliance with the recommendation from Annapolis; and Massachusetts was about to make such an appointment, under the influence of her patriotic Bowdoin. In this posture of affairs, although the proposition of the New York delegation failed to be adopted,[382] the fact that she had thus solicited the action of Congress was of decisive influence, when the members from Massachusetts followed it immediately by a resolve more acceptable to a majority of the assembly.[383] The recommendation, as it went forth from Congress, was strictly limited to a revision of the Articles of Confederation, by a convention of delegates, and the alterations and new provisions were to be reported to Congress, and were to be agreed to in Congress and confirmed by the States. Thus the resolution pursued carefully the mode of amendment and alteration provided by the Articles of Confederation, except that it interposed a convention for the purpose of originating the changes to be proposed in the existing form of government; adding, however, the great general purpose of rendering the Federal Constitution adequate to the exigencies of government and the preservation of the Union. The point thus gained was of vast and decisive importance. That Congress should forego the right of originating changes in the system of government;[384] that it should advise the States to confer that power upon another assembly; and that it should sanction a general revision of the Federal Constitution, with the express declaration of its present inadequacy,--were all preliminaries essential to a successful reform. Feeble as it had become from the overgrown vitality of State power, and from the lack of numbers and talent upon its roll, it was still the government of the Union; the Congress of America; the lineal successors of that renowned assembly which had defied the power of England, and brought into existence the thirteen United States. If it stood but the poor shadow of a great name, it was still a name with which to do more than conjure; for it bore a constitutional relation to the States, still reverenced by the wise and thoughtful, and still necessary to be regarded by all who desired the security of constitutional liberty. The risk of immediate attempts to establish a monarchical form of government was not inconsiderable. The risk that civil confusion would follow a longer delay to provide for the pressing wants of the country was greater. Dejection and despondency had taken hold of many minds of the highest order; while the great body of the people were desiring a change which they could not define, and which they feared, while they invited its approach. In such a state of things, considerate men were naturally unwilling to turn entirely away from Congress, or to exclude its agency altogether from the processes of reform, and to embark upon the uncertain sea of political experiment, without chart or rule to guide their course; for no man could tell what projects, what schemes, and what influences might arise to jeopard those great principles of republican liberty on which the political fabric had rested from the Declaration of Independence to the present hour of danger and distress. For the wise precedent, thus established, of placing the formation of a new government under the direct sanction of the old one, the people of this country are indebted chiefly to Hamilton. Nothing can be more unfortunate, in any country, than the necessity or the rashness which sweeps away an established constitution, before a substitute has been devised. Whether the interval be occupied by provisional arrangements or left to a more open anarchy, it is an unfit season for the creation of new institutions. At such a time, the crude projects of theorists are boldly intruded among the deliberations of statesmen; despotism lies in wait for the hazards by which liberty is surrounded; the multitude are unrestrained by the curb of authority; and society is exposed to the necessity of accepting whatever is offered, or of submitting to the first usurper who may seize the reins of government, because it has nothing on which to rest as an alternative. True liberty has gained nothing, in any age or country, from revolutions, which have excluded the possibility of seeking or obtaining the assent of existing power to the reforms which the progress of society demands. In the days when the Confederation was tottering to its fall; when its revenues had been long exhausted; and when its Congress embraced, in actual attendance, less than thirty delegates from only eleven of the States, it would have been the easy part of a demagogue to overthrow it by a sudden appeal to the passions and interests of the hour, as the first step to a radical change.[385] But the great man, whose mature and energetic youth, trained in the school of Washington, had been devoted to the formation and establishment of the Union, knew too well, that, if its golden cord were once broken, no human agency could restore it to life. He knew the value of habit, the respect for an established, however enfeebled authority; and while he felt and insisted on the necessity for a new constitution, and did all in his power to make the country perceive the defects of the old one, he wisely and honestly admitted that the assent of Congress must be gained to any movement which proposed to remedy the evil. But the reason for not moving the revision of the system of government by Congress itself was one that could not be publicly stated. It was, that the highest civil talent of the country was not there. The men to whom the American people had been accustomed to look in great emergencies,--the men who were called into the Convention, and whose power and wisdom were signally displayed in its deliberations,--were then engaged in other spheres of public life, or had retired to the repose which they had earned in the great struggle with England. Had the attempt been made by Congress itself to form a constitution for the acceptance of the States, the controlling influence and wisdom of Washington, Franklin's wide experience and deep sagacity, the unrivalled capacities of Hamilton, the brilliant powers of Gouverneur Morris, Pinckney's fertility, and Randolph's eloquence, with all the power of their eminent colleagues and all the strength of principle and of character which they brought to the Convention, would have been withheld from the effort. One great man, it is true, was still there. Madison was in Congress; and Madison's part in the framing of the Constitution was eminently conspicuous and useful. But without the concentration of talent which the Convention drew together, representing every interest and every part of the Union, nothing could have been presented to the States, by the Congress of 1787, which would have commanded their assent. The Constitution owed as much, for its acceptance, to the weight of character of its framers, as it did to their wisdom and ability, for the intrinsic merits which that weight of character enforced. It was fortunate, also, that Congress did nothing more than to recommend the Convention, without undertaking to define its powers. The doubts concerning its legality, which led many persons of great influence to hesitate in sanctioning it, were thus removed, and the States were left free to join in the movement, as an expedient to discover and remedy the defects of the federal government, without fettering their delegates with explicit instructions.[386] In this way the Convention, although experimental and anomalous, derived its influence from the sources in which it originated, and was enabled, though not without difficulty, to meet the crisis in which the country was placed. That crisis was one of a singular character; for the continued existence of the Union, and the fate of republican governments, were both involved. It was felt and admitted by the wisest men of that day, that if the Convention should fail in devising and agreeing upon some system of government, at once capable of pervading the country with an efficient control, and essentially republican in its form, the Federal Union would be at an end. But its dissolution, in the state in which the country then was, must have been followed by an attempt to establish monarchical government; because the State institutions were destitute of the strength necessary to encounter the agitation which would have followed the downfall of the federal power, and yet some substitute for that power must have been found. But without civil war, and the most frightful social convulsions, nothing in the nature of monarchy could ever have been established in this country after the Revolution. "Those who lean to a monarchical government," said Washington, "have either not consulted the public mind, or they live in a region which (the levelling principles in which they were bred being entirely eradicated) is much more productive of monarchical ideas than is the case in the Southern States, where, from the habitual distinctions which have always existed among the people, one would have expected the first generation and the most rapid growth of them. I am also clear, that, even admitting the utility, nay, necessity, of the form, the period is not arrived for adopting the change without shaking the peace of this country to its foundation. That a thorough reform of the present system is indispensable, no one, who has a capacity to judge, will deny; and with hand and heart I hope the business will be essayed in a full convention. After which, if more powers and more decision are not found in the existing form, if it still wants energy and that secrecy and despatch (either from the non-attendance or the local views of its members) which are characteristic of good government, and if it shall be found (the contrary of which, however, I have always been more afraid of than the abuse of them) that Congress will, upon all proper occasions, exert the powers which are given with a firm and steady hand, instead of frittering them back to the States, where the members, in place of viewing themselves in their national character, are too apt to be looking,--I say, after this essay is made, if the system proves inefficient, conviction of the necessity of a change will be disseminated among all classes of the people. Then, and not till then, in my opinion, can it be attempted without involving all the evils of civil discord."[387] There were other difficulties besides those which may be called legal, or technical, attending this effort to revise the system of the federal government. The failure of that system, as it had been put in operation in 1781, had, to a great extent, chilled the hopes of many of the best statesmen of America. It had been established under auspices which seemed to promise far different fruits from those it had actually produced. Its foundations were laid in the patriotism and national feeling of the States. The concessions which had been made to secure a union of republics, having various, and, in some respects, conflicting interests, seemed at first to guarantee the prompt and faithful performance of its obligations. But this fair promise had melted into most unsubstantial performance. The Confederation was framed upon a principle which never has enabled, and probably never will enable, a government to become effective and permanent,--the principle of a league. Another and a very serious cause for discouragement was the sectional jealousy and State pride which had been constantly growing, from the Declaration of Independence to the time when the States were called upon to meet each other upon broader grounds, and to make even larger sacrifices than at any former period. It is difficult to trace to all its causes the feeling which has at times arrayed the different extremities of this Union against each other. It was very early developed, after the different provinces were obliged to act together for their great mutual objects of political independence; but, even in its highest paroxysms, it has always at last found an antidote in the deeper feelings and more sober calculations of a consistent patriotism. Perhaps its prevalence and activity may with more truth be ascribed, in every generation, to the ambition of men who find in it a convenient instrument of local influence, rather than to any other cause. It is certain, that, when it has raged most violently, this has been its chief aggravating element. The differences of neither manners, institutions, climate, nor pursuits would at any time have been sufficient to create the perils to which the Union of the States has occasionally been exposed, without the mischievous agency of men whose personal objects are, for the time, subserved by the existence of such peculiarities. The proof of this is to be found in the fact, that the seasonable sagacity of the people has always detected the motives of those who have sought to employ their passions, and has compelled them at last to give way to that better order of men who have appealed to their reason. The difficulty of getting the assent of all the States to radical changes in the federal system, and the uncertainty as to the mode in which such changes could be effectively adopted, were also among the reasons which led many persons to regard the Convention as an experiment of doubtful expediency. The States had hitherto acted only in their corporate capacities, in all that concerned the formation and modification of the Union. The idea of a Union founded on the direct action of the people of the States, in a primary sense, and proceeding to establish a federal government, of limited powers, in the same manner in which the people of each State had established their local constitutions, had not been publicly broached, and was not generally entertained. Indeed, there was no expectation on the part of any State, when the delegates to the Convention were appointed, that any other principle would be adopted as the basis of action, than that by which the Articles of Confederation contemplated that all changes should be effected by the action of the States assembled in Congress, confirmed by the unanimous assent of the different State legislatures. The prevailing feeling, among the higher statesmen of the country, was, that the Convention was an experiment of doubtful tendency, but one that must nevertheless be tried. Washington, Madison, Jay, Knox, Edmund Randolph, have all left upon record the evidence of their doubts and their fears, as well as of their convictions of the necessity for this last effort in favor of the preservation of a republican form of government.[388] Hamilton advanced to meet the crisis, with perhaps less hesitation than any of the Revolutionary statesmen. His great genius for political construction; his large knowledge of the means by which a regulated liberty may be secured; and the long study with which he had contemplated the condition of the country, led him to enter the Convention with more of eagerness and hope than most of its members. He saw, with great clearness, that the difficulty which embarrassed nearly all his contemporaries--the question of the mode of enacting a new constitution--was capable of solution. He did not propound that solution in advance of the assembling of the Convention; for it was eminently necessary that the States should not be alarmed by the suggestion of a principle so novel and so unlike the existing theory of the Union. But he was fully prepared to announce it, so soon as it could be received and acted upon. * * * * * It was under such auspices and with such views that the Convention assembled at Philadelphia, on the fourteenth day of May in the year seventeen hundred and eighty-seven. At that time, the world had witnessed no such spectacle as that of the deputies of a nation, chosen by the free action of great communities, and assembled for the purpose of thoroughly reforming its constitution, by the exercise, and with the authority, of the national will. All that had been done, both in ancient and in modern times, in forming, moulding, or modifying constitutions of government, bore little resemblance to the present undertaking of the States of America. Neither among the Greeks nor the Romans was there a precedent, and scarcely an analogy. The ancient leagues of some of the cities or republics of Greece did not amount to constitutions, in the sense of modern political science; and the Roman republic was but the domination of a single race of the inhabitants of a single city. In modern Europe, we find no trace of political science until after the nations were divided, and partial limits set to the different orders and powers of the state. The feudal system, which acknowledged no relations in society but those of lord and serf, necessarily forbade all consideration of any forms of government which were not essentially founded on that relation; and it was not until that relation had been in some degree broken in upon, that there began to be any thing like theoretical inquiries into natural rights. When this took place,--at the end, or towards the end, of the Middle Ages,--the peculiar forms of the European governments gave rise to inquiries into the relation of sovereign and subject. From the beginning of the fifteenth down to the end of the seventeenth century, there were occasional discussions on the Continent, growing out of particular events, of such questions as the right of the people to depose bad princes, and how far it was lawful to resist oppression. But questions of constitutional form, or of the right of the people to arrange and distribute the different powers of government, or the best mode of doing it, did not arise at all. In England, from the time of the Conquest, until Magna Charta had gone far towards destroying the system, a feudal monarchy had precluded all questions touching the form or the spirit of government. The chief traits of the present constitution, which arose in a great measure from the circumstance that the lower orders of the nobility became gradually so much amalgamated with the people as to give rise to the distinct power of the commons, have all along been inconsistent with the enactment of new forms of civil polity; although from the time of the Reformation to the Revolution of 1688, the active principles of English freedom have, at different junctures, made advances of the utmost importance. The foundations on which the Stuarts sought to establish their throne were directly at variance with the spirit and principles of the Reformation, which totally denied the doctrine of passive and unlimited obedience, and which led to the struggles that gave birth to the Puritans. Those severe reformers, whose church constitution was purely republican, naturally sought to carry its principles into the state. The result was the Parliamentary troubles of James the First, the execution of Charles the First under the forms of judicial proceeding, and the despotism of Cromwell under the forms of a commonwealth. Charles the Second returned, untaught by all that had happened, to attempt the reëstablishment of the Stuart principles of unlimited obedience; and James the Second, who naturally united to them the Catholic religion, being driven from his kingdom, the question arose of a vacant throne, and how it should be filled. In all these events, however, from the death of Elizabeth to the great discussions which followed the abdication of James the Second, the idea of calling upon the people of England to frame a government of their own choice, and to define the limits and powers of its various departments, never arose. The Convention Parliament discussed, and were summoned to discuss, but a single fundamental question,--that involving the disposal of the crown. Still, the political troubles of England gave rise to many theoretical discussions of natural right, and of the origin and structure of society. As soon as Charles the First was executed, this discussion arose abroad, from his friends, who wrote, or influenced others to write, in defence of the divine right of kings. Hobbes and Filmer followed, in England, on the same side, and Milton, Locke, and Algernon Sidney vindicated the natural and inalienable rights of the subject and the citizen. In the works of these great writers, the foundations of society are examined with an acuteness which has left little to be done in the merely speculative part of political inquiry. But the practical effect of their theories never went farther than the promotion, to a greater or less extent, of the particular views which they desired to inculcate concerning the existing constitution, or the particular events out of which the discussions arose. Nor should we forget what had been done in France, by the wise and cautious Montesquieu, or by the vehement and passionate Rousseau, and the writers of his school. The former, drawing all his views from history and experience, undertook to show, from the antecedents of each state, the character of its constitution, to explain and develop its peculiar properties, and thence to determine the principles on which its legislation should proceed. The latter, starting from an entirely opposite point, and designing to write a treatise on Politics in the widest sense of the term, became a mere theorist, and produced only certain brilliant speculations upon the social compact, of a purely democratic character, as fragments of a work which he never finished. The crowd of writers, too, who preceded, and in part created the French Revolution, which was just commencing its destructive activity as our Constitution was formed, really contributed nothing of practical value to the solution of such great questions as the mode of forming, vesting, and distributing the various branches of sovereign power. Thus there was little for American statesmen of that day to look to, in the way of theories which had been practically proved to be sound and useful. The constitution of England, it is true, presented to them certain great maxims, the application of which was not unsuited to the circumstances and habits of a people whose laws and institutions had been derived from their English ancestors and their English blood. But the constitution of England, embracing the three estates of King, Lords, and Commons, had become what it was, only by the extortion from the crown of the rights and privileges of the two orders of the people. The American Revolution, on the other hand, had settled, as the fundamental principle of American society, that all sovereignty resides originally in the people; that they derive no rights by way of grant from any other source; and consequently, that no powers or privileges can exist in any portion of the people as distinct from the whole. The English constitution could, therefore, furnish only occasional analogies for particular details in the structure of departments, which might after all really require to be founded on different fundamental principles. But the great problem to be solved--for which English experience was of no value--was, so to parcel out those portions of original sovereignty, which the people of the States might be willing to withdraw from their State institutions, as to constitute an efficient federal republic, which yet would not control and absorb the powers that might be reserved. But to comprehend the results that were accomplished, and to understand the true nature of the system bequeathed to us, it is indispensable to examine in detail the means and processes by which it was formed. Before we turn, however, to this great subject, the characters of the principal framers of the Constitution demand our attention. FOOTNOTES: [351] "The war, as you have very justly observed," General Washington wrote to James Warren of Massachusetts, in October, 1785, "has terminated most advantageously for America, and a fair field is presented to our view; but I confess to you, my dear Sir, that I do not think we possess wisdom or justice enough to cultivate it properly. Illiberality, jealousy, and local policy mix too much in all our public counsels for the good government of the Union. In a word, the Confederation appears to me to be little more than a shadow without the substance, and Congress a nugatory body, their ordinances being little attended to. To me it is a solecism in politics; indeed, it is one of the most extraordinary things in nature, that we should confederate as a nation, and yet be afraid to give the rulers of that nation (who are the creatures of our own making, appointed for a limited and short duration, and who are amenable for every action and may be recalled at any moment, and are subject to all the evils which they may be instrumental in producing) sufficient powers to order and direct the affairs of the same. By such policy as this, the wheels of government are clogged, and our brightest prospects, and that high expectation which was entertained of us by the wondering world, are turned into astonishment; and, from the high ground on which we stood, we are descending into the vale of confusion and darkness. "That we have it in our power to become one of the most respectable nations upon earth, admits, in my humble opinion, of no doubt, if we would but pursue a wise, just, and liberal policy towards one another, and keep good faith with the rest of the world. That our resources are ample and increasing, none can deny; but while they are grudgingly applied, or not applied at all, we give a vital stab to public faith, and shall sink, in the eyes of Europe, into contempt. "It has long been a speculative question among philosophers and wise men, whether foreign commerce is of real advantage to any country; that is, whether the luxury, effeminacy, and corruptions which are introduced along with it are counterbalanced by the convenience and wealth which it brings. But the decision of this question is of very little importance to us. We have abundant reason to be convinced that the spirit of trade which pervades these States is not to be repressed. It behooves us, then, to establish just principles; and this cannot, any more than other matters of national concern, be done by thirteen heads differently constructed and organized. The necessity, therefore, of a controlling power, is obvious; and why it should be withheld is beyond my comprehension." Writings, IX. 139-141. [352] They are named in this order, because it represents the order in which they respectively acted upon the enlargement of the federal powers. [353] One of the necessary and immediate effects of the Revolution of course was, the loss of the exclusive commercial advantages which this country had enjoyed with Great Britain and her dependencies; and the prohibitory acts and impositions, which fell with their full weight on the American trade, after the peace, were particularly disastrous to the trade of Massachusetts. The whale fishery, a business of great importance, had brought into the Province, before the war, 172,000 guineas per annum, giving employment to American seamen, and not requiring the use of any foreign materials, except a small quantity of cordage. A duty was now laid on whale oil in England of £18 per tun. In addition to the loss thus sustained, the exportation of lumber and provisions in American bottoms to the West Indies was entirely prohibited. Another great inconvenience, which came in fact to be intolerable, was the vast influx of British goods, consigned to English factors for sale, depriving the native merchants, manufacturers, and artisans of the market. At the same time, the revenue of the State, derived from impost and excise duties and a tax on auctions of one per cent., fell short of the annual interest on the private debt of the State, 30,000 pounds (currency) per annum, and a tax of 20,000 pounds (currency) was computed to be necessary to cancel the debt, principal and interest, in fifteen years, and pay the ordinary charges of the government. Besides this, the State's proportion of the federal debt was to be provided for. It was in this state of things that two remarkable popular meetings were held in Boston, in the spring of 1785, to act upon the subject of trade and navigation, and to call the attention of Congress to the necessity for a national regulation of commerce. The first was a meeting of the merchants and tradesmen, convened at Faneuil Hall on the 18th of April. They appointed a committee to draft a petition to Congress, representing the embarrassments under which the trade was laboring, and took measures to cause the legislature to call the attention of the delegation in Congress to the importance of immediate action upon the subject. They also established a committee of correspondence with the merchants in the other seaports of the United States, to induce a similar action; and they entered into a pledge not to purchase any goods of the British merchants and factors residing in Boston, who had made very heavy importations, which tended to drain the specie of the State. The other meeting was an assembly of the artisans and mechanics, held at the Green Dragon Tavern, on the 28th of April, at which similar resolutions were adopted. It is quite apparent, from these proceedings, that all branches of industry were threatened with ruin; and in the efforts to counteract the effects of the great influx of foreign commodities, we trace the first movements of a popular nature towards a national control over commerce. [354] Governor Bowdoin's first Message to the Legislature, May 31, 1785. [355] July 1, 1785. [356] The delegation at that time consisted of Elbridge Gerry, Samuel Holten, and Rufus King. Their "Reasons assigned for suspending the delivery to Congress of the Governor's letter for revising and altering the Confederation" may be found in the Life of Hamilton, II. 353. See also Boston Magazine for 1785, p. 475. [357] November 25, 1785. [358] Letter of Messrs. Gerry, Holten, and King, delegates in Congress, to the Governor of Massachusetts, assigning reasons for suspending the delivery of his letter to Congress, dated September 3, 1785. Life of Hamilton, II. 353, 357. "We are apprehensive," said they, "and it is our duty to declare it, that such a measure would produce throughout the Union an exertion of the friends of an aristocracy to send members who would promote a change of government; and we can form some judgment of the plan which such members would report to Congress. But should the members be altogether republican, _such have been the declamations of designing men_ against the Confederation generally, against the rotation of members, which, perhaps, is the best check to corruption, and against the mode of altering the Confederation by the unanimous consent of the legislatures, which effectually prevents innovations in the articles by intrigue or surprise, that we think there is great danger of a report which would invest Congress with powers that the honorable legislature have not the most distant intention to delegate." [359] November 30th, 1785. [360] The resolution introduced on the 30th of November was agreed to in the Delegates, but before it was carried up to the Senate, it was reconsidered and laid upon the table. Elliot's Debates, I. 114, 115. Letter of Mr. Madison to General Washington, of December 9, 1785, Washington's Works, IX. 508. [361] What direct agency General Washington had in suggesting or promoting this scheme, does not appear; although it seems to have originated, or to have been agreed upon, at his house. His published correspondence contains no mention of the visit of the commissioners; but Chief Justice Marshall states that such a visit was made, and in this statement he is followed by Mr. Sparks. (Marshall, V. 90; Sparks, I. 428.) Mr. Madison, writing to General Washington in December, 1785, refers to "the proposed appointment of commissioners for Virginia and Maryland, _concerted at Mount Vernon_, for keeping up harmony in the commercial regulations of the two States," and says that the meeting of commissioners from all the States, which had then been proposed, "seems naturally to grow out of it." (Washington's Writings, IX. 509.) That Washington foresaw that the plan agreed upon at his house in March would lead to a general assembly of representatives of all the States, seems altogether probable, from the opinions which he entertained and expressed to his correspondents, during that summer, upon the subject of conferring adequate commercial powers upon Congress. (See his Letters to Mr. McHenry and Mr. Madison of August 22d and November 30th, Writings, IX. 121, 145.) [362] This resolution, passed January 21, 1786, was in these words: "_Resolved_, That Edmund Randolph, James Madison, Jr., Walter Jones, St. George Tucker, Meriweather Smith, David Ross, William Ronald, and George Mason, Esquires, be appointed commissioners, who, or any five of whom, shall meet such commissioners as may be appointed by the other States in the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situation and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States such an act relative to this great object, as, when unanimously ratified by them, will enable the United States in Congress assembled effectually to provide for the same; that the said commissioners shall immediately transmit to the several States copies of the preceding resolution, with a circular letter respecting their concurrence therein, and proposing a time and place for the meeting aforesaid." [363] Rhode Island, Maryland, and Georgia. [364] "The committee," said the Report, "have thought it their duty candidly to examine the principles of this system, and to discover, if possible, the reasons which have prevented its adoption; they cannot learn that any member of the Confederacy has stated or brought forward any objections against it, and the result of their impartial inquiries into the nature and operation of the plan has been a clear and decided opinion, that the system itself is more free from well-founded exceptions, and is better calculated to receive the approbation of the several States, than any other that the wisdom of Congress can devise. In the course of this inquiry, it most clearly appeared that the requisitions of Congress for eight years past have been so irregular in their operation, so uncertain in their collection, and so evidently unproductive, that a reliance on them in future, as a source from whence moneys are to be drawn to discharge the engagements of the Confederacy, definite as they are in time and amount, would be not less dishonorable to the understandings of those who entertain such confidence, than it would be dangerous to the welfare and peace of the Union. The committee are therefore seriously impressed with the indispensable obligation that Congress are under of representing to the immediate and impartial consideration of the several States, the utter impossibility of maintaining and preserving the faith of the federal government by temporary requisitions on the States, and the consequent necessity of an early and complete accession of all the States to the revenue system of the 18th of April, 1783." (Journals of Congress, XI. 35, 36. February 15, 1786.) [365] Life of Hamilton, II. 374, 375 [366] The legislature of New York were willing to grant the duties to Congress, but insisted upon reserving the power of levying and collecting them; and, instead of making the collectors amenable to and removable by Congress, they made them removable by the State, on conviction for default or neglect of duty in the State courts. This was a material departure from the plan recommended by Congress, and was entirely inconsistent with the grants already made by several of the States. See the Report and proceedings in Congress on the New York Act, July 27-August 23, 1786. Journals, XI. 153, 184, 197, 200. [367] New York was represented by Alexander Hamilton and Egbert Benson; New Jersey by Abraham Clark, William C. Houston, and James Schureman; Pennsylvania by Tench Coxe; Delaware by George Read, John Dickinson, and Richard Bassett; Virginia by Edmund Randolph (Governor), James Madison, Jr., and St. George Tucker. [368] General Knox, writing to General Washington under date of January 14, 1787, says: "You ask what prevented the Eastern States from attending the September meeting at Annapolis. It is difficult to give a precise answer to this question. Perhaps torpidity in New Hampshire; faction and heats about their paper money in Rhode Island; and jealousy in Connecticut. Massachusetts had chosen delegates to attend, who did not decline until very late, and the finding of other persons to supply their places was attended with delay, so that the convention had broken up by the time the new-chosen delegates had reached Philadelphia." Writings of Washington, IX. 513. [369] Report of the Annapolis Convention, Elliot's Debates, I. 116; Hamilton's Works, II. 336. [370] Article XIII. [371] Report, ut supra. [372] See his letter to James Duane, written in 1780, Life, I. 284-305. [373] Ibid. The first public proposal of a continental convention is assigned by Mr. Madison to one Pelatiah Webster, whom he calls "an able, though not conspicuous citizen," and who made this suggestion in a pamphlet published in May, 1781. Recent researches have not added to our knowledge of this writer. In the summer of 1782, the legislature of New York, under the suggestion of Hamilton, passed resolutions recommending such a convention. On the 1st of April, 1783, Hamilton, in a debate in Congress, expressed his desire to see a general convention take place. In 1784, the measure was a good deal talked of among the members of Congress, and in the winter of 1784-85, Noah Webster, an eminent political writer in Connecticut, suggested "a new system of government, which should act, not on the States, but directly on individuals, and vest in Congress full power to carry its laws into effect." In 1786, the subject was again talked of among members of Congress, before the meeting at Annapolis. (Madison. Elliot, V. 117, 118.) But Hamilton's letter to James Duane, in 1780, although not published at the time, was of course earlier than any of these suggestions. In that letter, after showing that the fundamental defect of the then existing system was a want of power in Congress, he thus analyzes in advance the Articles of Confederation, which had not then taken effect:--"But the Confederation itself is defective, and requires to be altered. It is neither fit for war nor peace. The idea of an uncontrollable sovereignty, in each State, over its internal police, will defeat the other powers given to Congress, and make our Union feeble and precarious. There are instances, without number, where acts necessary for the general good, and which rise out of the powers given to Congress, must interfere with the internal police of the States; and there are as many instances in which the particular States, by arrangements of internal police, can effectually, though indirectly, counteract the arrangements of Congress. You have already had examples of this, for which I refer to your own memory. The Confederation gives the States, individually, too much influence in the affairs of the army; they should have nothing to do with it. The entire foundation and disposal of our military forces ought to belong to Congress. It is an essential element of the Union; and it ought to be the policy of Congress to destroy all ideas of State attachment in the army, and make it look up wholly to them. For this purpose, all appointments, promotions, and provisions whatsoever ought to be made by them. It may be apprehended, that this may be dangerous to liberty. But nothing appears more evident to me, than that we run much greater risk of having a weak and disunited federal government, than one which will be able to usurp upon the rights of the people. Already some of the lines of the army would obey their States in opposition to Congress, notwithstanding the pains we have taken to preserve the unity of the army. If any thing would hinder this, it would be the personal influence of the general,--a melancholy and mortifying consideration. The forms of our State constitutions must always give them great weight in our affairs, and will make it too difficult to blind them to the pursuit of a common interest, too easy to oppose what they do not like, and to form partial combinations, subversive of the general one. There is a wide difference between our situation and that of an empire under one simple form of government, distributed into counties, provinces, or districts, which have no legislatures, but merely magistratical bodies to execute the laws of a common sovereign. There the danger is that the sovereign will have too much power, and oppress the parts of which it is composed. In our case, that of an empire composed of confederate states, each with a government completely organized within itself, having all the means to draw its subjects to a close dependence on itself, the danger is directly the reverse. It is, that the common sovereign will not have power sufficient to unite the different members together, and direct the common forces to the interest and happiness of the whole.... The Confederation, too, gives the power of the purse too entirely to the State legislatures. It should provide perpetual funds in the disposal of Congress, by a land-tax, poll-tax, or the like. All imposts upon commerce ought to be laid by Congress, and appropriated to their use; for without certain revenues, a government can have no power; that power which holds the purse-strings absolutely, must rule. This seems to be a medium which, without making Congress altogether independent, will tend to give reality to its authority. Another defect in our system is, want of method and energy in the administration. This has partly resulted from the other defect; but in a great degree from prejudice and the want of a proper executive. Congress have kept the power too much in their own hands, and have meddled too much with details of every sort. Congress is properly a deliberative corps, and it forgets itself when it attempts to play the executive. It is impossible that a body, numerous as it is, constantly fluctuating, can ever act with sufficient decision, or with system. Two thirds of the members, one half the time, cannot know what has gone before them, or what connection the subject in hand has to what has been transacted on former occasions. The members who have been more permanent will only give information that promotes the side they espouse, in the present case, and will as often mislead as enlighten. The variety of business must distract, and the proneness of every assembly to debate must at all times delay. Lastly, Congress, convinced of these inconveniences, have gone into the measure of appointing boards. But this is, in my opinion, a bad plan. A single man, in each department of the administration, would be greatly preferable. It would give us a chance of more knowledge, more activity, more responsibility, and, of course, more zeal and attention. Boards partake of the inconveniences of larger assemblies; their decisions are slower, their energy less, their responsibility more diffused. They will not have the same abilities and knowledge as an administration by single men. Men of the first pretensions will not so readily engage in them, because they will be less conspicuous, of less importance, have less opportunity of distinguishing themselves. The members of boards will take less pains to inform themselves and arrive at eminence, because they have fewer motives to do it. All these reasons conspire to give a preference to the plan of vesting the great executive departments of the state in the hands of individuals. As these men will be, of course, at all times under the direction of Congress, we shall blend the advantages of a monarchy in one constitution.... I shall now propose the remedies which appear to me applicable to our circumstances, and necessary to extricate our affairs from their present deplorable situation. The first step must be to give Congress powers competent to the public exigencies. This may happen in two ways: one, by resuming and exercising the discretionary powers I suppose to have been originally vested in them for the safety of the States, and resting their conduct on the candor of their countrymen and the necessity of the conjuncture; the other, _by calling immediately a convention of all the States_, with full authority to conclude finally upon a general confederation, stating to them beforehand explicitly the evils arising from a want of power in Congress, and the impossibility of supporting the contest on its present footing, that the delegates may come possessed of proper sentiments, as well as proper authority, to give efficacy to the meeting. _Their commission should include a right of vesting Congress with the whole or a proportion of the unoccupied lands, to be employed for the purpose of raising a revenue, reserving the jurisdiction to the States by whom they are granted._ The Confederation, in my opinion, should give Congress a complete sovereignty; except as to that part of internal police which relates to the rights of property and life among individuals, and to raising money by internal taxes. It is necessary that every thing belonging to this should be regulated by the State legislatures. Congress should have complete sovereignty in all that relates to war, peace, trade, finance; and to the management of foreign affairs; the right of declaring war, of raising armies, officering, paying them, directing their motions in every respect; of equipping fleets, and doing the same with them; of building fortifications, arsenals, magazines, &c.; of making peace on such conditions as they think proper; of regulating trade, determining with what countries it shall be carried on; granting indulgences; laying prohibitions on all the articles of export or import; imposing duties, granting bounties and premiums for raising, exporting, or importing; and applying to their own use the product of these duties, only giving credit to the States on whom they are raised in the general account of revenues and expense; instituting admiralty courts, &c.; of coining money, establishing banks on such terms, and with such privileges, as they think proper; appropriating funds, and doing whatever else relates to the operations of finance; transacting every thing with foreign nations; making alliances offensive and defensive, and treaties of commerce, &c.... The second step I would recommend is, that Congress should instantly appoint the following great officers of state: a Secretary for Foreign Affairs; a President of War; a President of Marine; a Financier; a President of Trade.... These officers should have nearly the same powers and functions as those in France analogous to them, and each should be chief in his department, with subordinate boards, composed of assistants, clerks, &c., to execute his orders." (Life of Hamilton, I. 284-305.) [374] Abstract of an Address made to the Legislature of Massachusetts, by the Hon. Rufus King, in October, 1786. Boston Magazine for the year 1786, p. 406. [375] Mr. Madison's Notes of Debates in the Congress of the Confederation. Elliot, V. 96. [376] This was the opinion of Mr. Jay. He thought that no alterations should be attempted, unless deduced from the only source of just authority, the people. He seems to have considered that, if the people of the States, acting through their primary conventions, were to send delegates to a general convention, with authority to alter the Articles of Confederation, the new system would rest upon the authority of the people, without further sanction. See his letter to General Washington, of date January 7, 1787. Writings of Washington, IX. 510. [377] Letter of General Knox to General Washington, January 14, 1787. Writings of Washington, IX. 513. [378] Madison. Elliot, V. 96. [379] It was brought before them by the speech of the Governor (Clinton), informing them of the resolutions of Congress, which had requested an immediate call of the legislature to consider the revenue system, "a subject," he observed, "which had been repeatedly submitted to them, and must be well understood." [380] Journals, XII. 15. February 21, 1787. [381] Ibid. The vote rejecting the impost bill was taken on the 15th of February. The resolution of instructions was passed on the 17th, and was laid before Congress on the 21st. [382] Mr. Madison has recorded the suspicions with which this resolution of the New York legislature was received. Their previous refusal of the impost act, and their known anti-federal tendencies, gave rise, he says, to the belief that their object was to obtain a convention without having it called under the authority of Congress, or else, by dividing the plans of the States in their appointments of delegates, to frustrate them all. (Madison. Elliot, V. 96.) But whatever grounds there might have been for either of these suspicions, the latter certainly was not well founded. The New York resolution was drafted by Hamilton, and although it was passed by a body in which a majority had not exhibited a disposition to enlarge the authority of Congress, it was manifestly not intended to prevent the adoption of the plan of a convention. It contemplated the passage by Congress of an act, recommending the States to institute a convention of representatives of the States to revise the Articles of Confederation; and the resolution introduced by the New York delegation into Congress proposed that the alterations and amendments which the convention might consider necessary to render the Articles of Confederation "adequate to the preservation and support of the Union," should be reported to Congress and to the States respectively, but did not direct how they should be adopted. This would have left open a great question, and seemed to be a departure from the mode in which the Articles of Confederation directed that amendments should be made. Probably it was Hamilton's intention to leave the form in which the new system should be adopted for future action, without fettering the movement by prescribing the mode before the convention had assembled. But this course was practically impossible. Congress could not be prevailed upon to recommend a convention, without making the condition that the new provisions should be reported to Congress and confirmed by the States. This gave rise to great embarrassment in the convention, when it came to be admitted that the Confederation must be totally superseded, and not _amended_; and it was finally disregarded. But it was the only mode in which the convention could have been recommended by Congress, and without that recommendation, probably, it could not have been instituted. [383] The resolution introduced by the Massachusetts delegation, when that of New York had been rejected, after being amended, was finally passed in the following terms: "Whereas, there is provision in the Articles of Confederation and Perpetual Union for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced that there are defects in the present Confederation, as a mean to remedy which several of the States, and particularly the State of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such a convention appearing to be the most probable means of establishing in these States a firm national government, _Resolved_, That, in the opinion of Congress, it is expedient that, on the second Monday day in May next, a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union." Journals, XII. 17. February 21, 1787. [384] The Articles of Confederation did not expressly require that amendments should be prepared and proposed in Congress. The thirteenth Article provided, that no alteration should be made, unless it should "be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State." But it was clearly implied by this, that Congress were to have the power of recommending alterations, and this power was exercised in 1783, with regard to the rule of apportionment. [385] Governor Randolph of Virginia writing to General Washington, on the 11th of March, 1787, and urging him to attend the Convention, said: "I must call upon your friendship to excuse me for again mentioning the Convention at Philadelphia. Your determination having been fixed on a thorough review of your situation, I feel like an intruder when I again hint a wish that you would join the delegation. But every day brings forth some new crisis, and the Confederation is, I fear, the last anchor of our hope. Congress have taken up the subject, and appointed the second Monday in May next as the day of meeting. _Indeed, from my private correspondence, I doubt whether the existence of that body, even through this year, may not be questionable under our present circumstances._" Sparks's Washington, IX. 243, note. [386] The States of Virginia, New Jersey, Pennsylvania, North Carolina, and Delaware had appointed their delegates to the Convention before it was sanctioned by Congress. Virginia led the way; and the following preamble to her act shows with what motives and objects she did so. "Whereas, the commissioners who assembled at Annapolis, on the 14th day of September last, for the purpose of devising and reporting the means of enabling Congress to provide effectually for the commercial interests of the United States, have represented the necessity of extending the revision of the federal system to all its defects, and have recommended that deputies for that purpose be appointed by the several legislatures, to meet in convention in the city of Philadelphia, on the 2d day of May next,--a provision which was preferable to a discussion of the subject in Congress, where it might be too much interrupted by the ordinary business before them, and where it would, besides, be deprived of the valuable counsels of sundry individuals who are disqualified by the constitution or laws of particular States, or restrained by peculiar circumstances from a seat in that assembly: And whereas the General Assembly of this Commonwealth, taking into view the actual situation of the Confederacy, as well as reflecting on the alarming representations made from time to time by the United States in Congress, particularly in their act of the 15th day of February last, can no longer doubt that the crisis is arrived at which the good people of America are to decide the solemn question, whether they will, by wise and magnanimous efforts, reap the just fruits of that independence which they have so gloriously acquired, and of that Union which they have cemented with so much of their common blood,--or whether, by giving way to unmanly jealousies and prejudices, or to partial and transitory interests, they will renounce the auspicious blessings prepared for them by the Revolution, and furnish to its enemies an eventful triumph over those by whose virtue and valor it has been accomplished: And whereas the same noble and extended policy, and the same fraternal and affectionate sentiments, which originally determined the citizens of this Commonwealth to unite with their brethren of the other States in establishing a federal government, cannot but be felt with equal force now as motives to lay aside every inferior consideration, and to concur in such further concessions and provisions as may be necessary to secure the great objects for which that government was instituted, and to render the United States as happy in peace as they have been glorious in war: _Be it therefore enacted_, &c., That seven commissioners be appointed, by joint ballot of both houses of Assembly, who, or any three of them, are hereby authorized as deputies from this Commonwealth to meet such deputies as may be appointed and authorized by other States, to assemble in convention at Philadelphia, as above recommended, and to join with them in devising and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union; and in reporting such an act, for that purpose, to the United States in Congress, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same." (Elliot, I. 132.) The instructions of New Jersey to her delegates were, "to take into consideration the state of the Union as to trade and other important objects, and of devising such other provisions as shall appear to be necessary to render the constitution of the federal government adequate to the exigencies thereof." (Ibid. 128.) The act of Pennsylvania provided for the appointment of deputies to join with the deputies of other States "in devising, deliberating on, and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution fully adequate to the exigencies of the Union, and in reporting such act or acts, for that purpose, to the United States in Congress assembled, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same." (Ibid. 130.) The instructions of Delaware were of the same tenor. (Ibid. 131.) The act of North Carolina directed her deputies "to discuss and decide upon the most effectual means to remove the defects of our Federal Union, and to procure the enlarged purposes which it was intended to effect; and that they report such an act to the General Assembly of this State, as, when agreed to by them, will effectually provide for the same." (Ibid. 135.) The instructions to the delegates of New Hampshire were of the same tenor. (Ibid. 126.) The appointment of the delegates of Massachusetts was made with reference to the terms of the resolve of Congress recommending the Convention, and for the purposes declared therein. (Ibid. 126, 127.) The appointment of Connecticut was made with the same reference, and with the further direction "to discuss upon such alterations and provisions, agreeably to the general principles of republican government, as they shall think proper to render the Federal Constitution adequate to the exigencies of government and the preservation of the Union; and they are further directed, pursuant to the said act of Congress, to report such alterations and provisions as may be agreed to by a majority of the United States represented in convention, to the Congress of the United States, and to the General Assembly of this State." (Ibid. 127.) The resolutions of New York, Maryland, South Carolina, and Georgia pursued nearly the same terms with the resolve of Congress. (Ibid. 127, 131, 136, 137.) [387] Sparks's Washington, IX. 223, 225, 230, 236, 508-520. [388] Sparks's Washington, IX. 223, 225, 230, 236, 508-520. CHAPTER VII. THE FRAMERS OF THE CONSTITUTION.--WASHINGTON, PRESIDENT OF THE CONVENTION. The narrative to which the reader has thus far attended must now be interrupted for a while, that he may pause upon the threshold of an assembly which had been summoned to the grave task of remodelling the constitution of this country, and here consider the names and characters of the men to whom its responsible labors had been intrusted. The civil deeds of statesmen and lawgivers, in establishing and forming institutions, incorporating principles into the forms of public administration, and setting up the defences of public security and prosperity, are far less apt to attract and hold the attention of mankind, than the achievements of military life. The name, indeed, may be for ever associated with the work of the hand; but the mass of mankind do not study, admire, or repeat the deeds of the lawgiver, as they do those of the hero. Yet he who has framed a law, or fashioned an institution in which some great idea is made practical to the conditions of human existence, has exercised the highest attributes of human reason, and is to be counted among the benefactors of his race. The framers of the Constitution of the United States assembled for their work amidst difficulties and embarrassments of an extraordinary nature. No general concert of opinion had taken place as to what was best, or even as to what was possible to be done. Whether it were wise to hold a convention, whether it were even legal to hold it, and whether, if held, it would be likely to result in any thing useful to the country, were points upon which the most opposite opinions prevailed in every State of the Union. But it was among the really fortunate, although apparently unhappy, circumstances under which they were assembled, that the country had experienced much trial, suffering, distress, and failure. It has been a disagreeable duty to describe the disasters and errors of a period during which the national character was subjected to the discipline of adversity. We now come to the period of compensation which such discipline inevitably brings. There is a law of the moral government of the universe, which ordains that all that is great and valuable and permanent in character must be the result, not of theoretical teaching, or natural aspiration,--of spontaneous resolve, or uninterrupted success,--but of trial, of suffering, of the fiery furnace of temptation, of the dark hours of disappointment and defeat. The character of the man is distinguishable from the character of the child that he once was, chiefly by the effects of this universal law. There are the same natural impulses, the same mental, moral, and physical constitution, with which he was born into the world. What is it that has given him the strength, the fortitude, the unchanging principle, and the moral and intellectual power, which he exhibits in after years? It has not been constant pleasure and success, nor unmingled joy. It has been the hard discipline of pain and sorrow, the stern teachings of experience, the struggle against the consequences of his own errors, and the chastisement inflicted by his own faults. This law pertains to all human things. It is as clearly traceable in its application to the character of a people, as to that of an individual; and as the institutions of a people, when voluntarily formed by them out of the circumstances of their condition, are necessarily the result of the previous discipline and the past teachings of their career, we can trace this law also in the creation and growth of what is most valuable in their institutions. When we have so traced it, the unalterable relations of the moral universe entitle us to look for the elements of greatness and strength in whatever has been the product of such teachings, such discipline, and such trials. The Constitution of the United States was eminently the creature of circumstances;--not of circumstances blindly leading the blind to an unconscious submission to an accident, but of circumstances which offered an intelligent choice of the means of happiness, and opened, from the experience of the past, the plain path of duty and success, stretching onward to the future. All that has been said in the previous chapters tends to illustrate this fact. We have seen the American people,--divided into separate and isolated communities, without nationality, except such as resulted from a general community of origin,--undertaking together the work of throwing off the domination of their parent state. We have seen them enter upon this undertaking without forming any political bond of a national character, and without instituting any proper national agency. We have seen, that the first government which they created was, practically, a mere general council for the recommendation of measures to be adopted and executed by the several constituencies represented. We have seen no machinery instituted for the accomplishment, by the combined authority of these separate communities, of the great objects at which they were aiming; and although in theory the Revolutionary Congress would have been entitled to assume and exercise the powers necessary to accomplish the objects for which it was assembled, we have seen that the people of the country, from a jealous and unreasonable fear of all power, would not permit this to be done. The consequences of this want of power were inevitable. An army could not be kept in the field, on a permanent footing, capable of holding the enemy in check. The city of New York fell into the hands of that enemy, the intermediate country between that city and the city of Philadelphia was overrun, and from the latter capital, the seat of the general government, the Congress was obliged to fly before the invading foe. Taught by these events that a more effective union was necessary to the deliverance of the country from a foreign yoke, the States at length united in the establishment of a government, the leading purpose of which was mutual defence against external attacks, and called it a Confederation. But its powers were so restricted, and its operations so clogged and impeded by State jealousies and State reservations of power, that it lacked entirely the means of providing the sinews of war out of the resources of the country, and was driven to foreign loans and foreign arms for the means of bringing that war to a close. A vast load of debt was thus accumulated upon the country; and, as soon as peace was established, it became apparent, that, while the Confederation was a government with the power of contracting debts, it was without the power of paying them. This incapacity revealed the existence of great objects of government, without which the people of the several States could never prosper, and which, in their separate capacities, the States themselves could never accomplish. Now it is as certain as history can make any thing, that the whole period, from the commencement of the war to the end of the Confederation, was a period of great suffering to the people of the United States. The trials and hardships of war were succeeded by the greater trials and hardships of a time of peace, in which the whole nation experienced that greatest of all social evils, the want of an efficient and competent government. There was a gloom upon the minds of men,--a sense of insecurity,--a consciousness that American society was not fulfilling the ends of its being by the development of its resources and the discharge of its obligations,--which constituted altogether a discipline and a chastisement of the whole nation, and which we are not at liberty to regard as the mere accidents of a world ungoverned by an overruling Power. It was from the midst of that discipline that the American people came to the high undertaking of forming for themselves a constitution, by which to work out the destiny of social life in this Western World. Had they essayed their task after years of prosperity, and after old institutions and old forms of government had, upon the whole, yielded a fair amount of success and happiness, they would have wanted that power which comes only from failure and disappointment,--the power to adapt the best remedy to the deepest social defects, and to lay hold on the future with the strength given by the hard teachings of the past. Civil liberty,--American liberty,--that liberty which resides in law, which is protected by great institutions and upheld by the machinery of a popular government,--is not simply the product of a desire, or a determination, to be free. Such liberty comes, if it comes at all, only after serious mistakes,--after frightful deficiencies have taught men that power must be lodged somewhere. It comes when a people have learned, by adversity and disappointment, that a total negation of all authority, and a jealousy of all restraint, can end only in leaving society without the defences and securities which nothing but law can raise for it. It comes when the passions are exhausted, and the rivalries of opposing interests have worn themselves out, in the vain endeavor to reach what reason and justice and self-sacrifice alone can procure. Then, and then only, is the intellect of a nation sure to operate with the fidelity and energy of its native power. Then only does it grasp the principles of freedom with the ability to incorporate them into the practical forms of a public administration whose strength and energy shall give them vitality, and prevent their diffusion into the vagueness of mere abstractions, which return to society the cold and mocking gift of a stone for its craving demand of bread. * * * * * The Convention was a body of great and disinterested men, competent, both morally and intellectually to the work assigned them. High qualities of character are requisite to the formation of a system of government for a wide country with different interests. Mere talent will not do it. Intellectual power and ingenuity alone cannot compass it. There must be a moral completeness in the characters of those who are to achieve such a work; for it does not consist solely in devising schemes, or creating offices, or parcelling out jurisdictions and powers. There must be adaptation, adjustment of conflicting interests, reconciliation of conflicting claims. There must be the recognition and admission of great expedients, and the sacrifice, often, of darling objects of ambition, or of local policy, to the vast central purpose of the greatest happiness of the greatest number. Hence it is, that, wherever this mighty work is to be successfully accomplished, there must be a high sense of justice; a power of concession; the qualities of magnanimity and patriotism; and that broad moral sanity of the intellect, which is farthest removed from fanaticism, intolerance, or selfish adhesion either to interest or to opinion. These qualities were preëminently displayed by many of the framers of the Constitution. There was certainly a remarkable amount of talent and intellectual power in that body. There were men in that assembly, whom, for genius in statesmanship, and for profound speculation in all that relates to the science of government, the world has never seen overmatched. But the same men, who were most conspicuous for these brilliant gifts and acquirements, for their profound theories and their acute perception of principles, were happily the most marked, in that assembly, for their comprehensive patriotism, their justice, their unselfishness and magnanimity. Take, for instance, Hamilton. Where, among all the speculative philosophers in political science whom the world has seen, shall we find a man of greater acuteness of intellect, or more capable of devising a scheme of government which should appear theoretically perfect? Yet Hamilton's unquestionable genius for political disquisition and construction was directed and restrained by a noble generosity, and an unerring perception of the practicable and the expedient, which enabled him to serve mankind without attempting to force them to his own plans, and without compelling them into his own views. Take Washington, whose peculiar greatness was a moral elevation, which secured the wisest and best use of all his powers in either civil or military life. Take Madison, who certainly lacked neither ability nor inclination for speculative inquiries, and who had a mind capable of enforcing the application of whatever principles he espoused. Yet his calm good sense, and the tact with which he could adapt theory to practice, were no less among his prominent characteristics. Take Franklin, who sometimes held extreme opinions, and occasionally pushed his peculiar fancies, springing from an excess of worldly wisdom, to the utmost verge of truth, but whose intellect was tempered, and whose whole character was softened, by the wide and varied experience of a life that had been commenced in obscurity, and was now closing with the honors of a reputation that filled the Eastern as well as the Western hemisphere. Take Gouverneur Morris, who was ardent, impulsive, and not disinclined to tenacity of opinion; but he rose above all local and narrow objects, and embraced, in the scope of his clear and penetrating vision, the happiness and welfare of this whole continent. It was a most fortunate thing for America, that the Revolutionary age, with its hardships, its trials, and its mistakes, had formed a body of statesmen capable of framing for it a durable constitution. The leading persons in the Convention which formed the Constitution had been actors, either in civil or military life, in the scenes of the Revolution. In those scenes their characters as American statesmen had been formed. When the condition of the country had fully revealed the incapacity of its government to provide for its wants, these men were naturally looked to, to construct a system which should save it from anarchy. And their great capacities, their high, disinterested purposes, their freedom from all fanaticism and illiberality, and their earnest, unconquerable faith in the destiny of their country, enabled them to found that government, which now upholds and protects the whole fabric of liberty in the States of this Union. Of course no such assembly, in that or in any other age, in this or in any other country, could be called together for such a purpose, without exhibiting a great diversity of opinions, wishes, and views. The very object for which they were assembled was of a nature to develop, to the fullest extent, the most conflicting opinions and the most opposite theories. That object was to devise a system which should best secure the permanent liberty and happiness of a vast country. What subject, in the whole range of human thought and human endeavor, could be more complex than this? What occasion, among all the diversities of human affairs, could present a wider field for honest differences of opinion, and for severe conflicts of mind with mind? Yet it should never be forgotten, as the merit of this assembly, that, collectively and individually, they were animated by the most pure and exclusive devotion to the object for which they were called together. It was this high patriotism, this deep and never-ceasing consciousness that the great experiment of republican liberty turned on the result of their labors, as on the hazard of a die, that brought at last all conflicts of interest, all diversities of opinion and feeling, into a focus of conciliation and unanimity. More than once the reader will find them on the point of separating without having accomplished any thing; and more than once he will see them recalled to their mighty task by the eloquence of some master-spirit, who knew how to touch the key-note of that patriotic feeling, which was never wholly lost in the jarring discords of debate and intellectual strife. For four months the laborious effort went on. The serene and unchanging presence of Washington presided over all. The chivalrous sincerity and disinterestedness of Hamilton pervaded the assembly with all the power of his fascinating manners. The flashing eloquence of Gouverneur Morris recalled the dangers of anarchy, which must be accepted as the alternative of an abortive experiment. The calm, clear, statesmanlike views of Madison, the searching and profound expositions of King, the prudent influence of Franklin, at length ruled the hour. In examining their work, and in reading all that is left to us of their discussions, we are to consider the materials out of which they had to frame a system of republican liberty, and the point of view, in reference to the whole subject, at which they stood. We are to remember how little the world had then seen of real liberty united with personal safety and public security; and how entirely novel the undertaking was, to form a complete system of government, wholly independent on tradition, exactly defined in a written constitution, to be created at once, and at once set in motion, for the accomplishment of the great objects of human liberty and social progress. The examples of Greece and Rome, the modern republics of Italy, the federal relations of the Swiss Cantons, and the distant approach to republicanism that had been seen in Holland, might be resorted to for occasional and meagre illustrations of a few general principles. But, unquestionably, the country which, up to that moment, had exhibited, by the working of its government, the greatest amount of liberty combined with the greatest public security, was England. England, however, was a monarchy; and monarchy was the system which they both desired, and were obliged, to avoid. If it was within the range of human possibility to establish a system of republican government, which would fulfil its appropriate duties, over this vast and rapidly extending country, _that_ they felt, one and all, to be their great task. On the other hand, they knew that, if to that form they could not succeed in giving due stability and wisdom, it would be, in the words of Hamilton, "disgraced and lost among ourselves, disgraced and lost to mankind for ever."[389] Here was their trial,--the difficulty of all their difficulties; and it was here that they exhibited a wisdom, a courage, and a capacity, which have been surpassed by no other body of lawgivers ever assembled in the world. Their country had, a few years before, passed through a long and distressing war with its parent state. The yoke of her domination had been thrown off, and its removal was naturally followed by a loosening of the bands of all authority, and an indisposition to all new restraints. The American Colonies had become independent States; and as the spirit of liberty which pervaded them made individuals impatient of control in their political relations, so the States reflected the same spirit in their corporate conduct, and looked with jealousy and distrust upon all powers which were not to be exercised by themselves. Yet it was clear that there were powers and functions of government, which, for the absolute safety of the country, must be withdrawn from the States, and vested in some national head, which should hold and exercise them in the name of the whole, for the good of the whole. The great question was, what that national head was to be; and the great service performed by the framers of the Constitution consisted in devising a system by which a national sovereignty might be endowed with energy, dignity, and power, and the forms and substance of popular liberty still be preserved; a system by which a supreme authority in all the matters which it touched might be created, resting directly on the popular will, and to be exercised, in all coming time, through forms and institutions under which that will should have a direct and perpetual and perpetually renewed expression. This they accomplished. They accomplished it, too, without abolishing the State governments, and without impairing a single personal right which existed before they began their work. They accomplished it without violence; without the disruption of a single fibre in that whole delicate tissue of which society is made up. No drop of blood was shed to establish this government, the work of their hands; and no moment of interruption occurred to the calm, even tenor of the pursuits of men,--the daily on-goings of society, in which the stream of human life and happiness and progress flows on in beneficence and peace. * * * * * First upon the list of those who had been called together for this great purpose, we are to mention him, without whose presence and countenance all men felt that no attempt to meliorate the political condition of the country could succeed. I have already given an account of the proceedings which led directly to the calling of the Convention; and have mentioned the interesting fact, that the impulse to those proceedings was given at Mount Vernon. Thither General Washington had retired, at the close of the war, with no thought of ever engaging again in public affairs. He supposed that for him the scene was closed. "The noontide of life," said he, in a letter to the Marchioness de Lafayette, "is now past, with Mrs. Washington and myself; and all we have to do is to glide gently down a stream which no human effort can ascend."[390] But wise and far-seeing as he was, he did not foresee how soon he was to be called from that grave and sweet tranquillity. He was busy with the concerns of his farm; he was tasting the happiness of home, from which he had been absent nine long years; he was "cultivating the affections of good men, and practising the domestic virtues." But it was not in his nature to be inattentive to the concerns of that country for whose welfare he had labored and suffered so much. He maintained an active correspondence with several of the most eminent and virtuous of his compatriots in different parts of the Union; and in that correspondence, running through the years 1784, 1785, and 1786, there exists the most ample evidence of the downward tendency of things, and of the fears it excited. It had become evident to him that we never should establish a national character, nor be justly considered and respected by the nations of Europe, without enlarging the powers of the federal government for the regulation of commerce. The objection which had been hitherto urged, that some States might be more benefited than others by a commercial regulation, seemed to him to apply to every matter of general utility. "We are," said he, writing in the summer of 1785, "either a united people under one head, and for federal purposes, or we are thirteen independent sovereignties eternally counteracting each other. If the former, whatever such a majority of the States as the constitution points out conceives to be for the benefit of the whole, should, in my humble opinion, be submitted to by the minority. Let the Southern States always be represented; let them act more in union; let them declare freely and boldly what is for the interest of, and what is prejudicial to, their constituents; and there will, there must be, an accommodating spirit. In the establishment of a navigation act, this, in a particular manner, ought and will doubtless be attended to. If the assent of nine States, or, as some propose, of eleven, is necessary to give validity to a commercial system, it insures this measure, or it cannot be obtained. "Wherein, then, lies the danger? But if your fears are in danger of being realized, cannot certain provisos in the ordinance guard against the evil? I see no difficulty in this, if the Southern delegates would give their attendance in Congress, and follow the example, if it should be set them, of adhering together to counteract combination. I confess to you candidly, that I can foresee no evil greater than disunion; than those unreasonable jealousies (I say _unreasonable_, because I would have a _proper_ jealousy always awake, and the United States on the watch to prevent individual States from infracting the constitution with impunity) which are continually poisoning our minds and filling them with imaginary evils for the prevention of real ones."[391] But, while he desired to see the ninth article of the Confederation so amended and extended as to give adequate commercial powers, he feared that it would be of little avail to give them to the existing Congress. The members of that body seemed to him to be so much afraid of exerting the powers which they already possessed, that they lost no opportunity of surrendering them, or of referring their exercise to the individual States. The speculative question, whether foreign commerce is of any real advantage to a country, he regarded as of no importance, convinced that the spirit of trade which pervaded these States was not to be restrained. It behooved us, therefore, to establish just principles of commercial regulation, and this could not, any more than other matters of national concern, be done by thirteen heads differently constructed and organized. The necessity, in fact, of a controlling power was obvious, and why it should be withheld was, he declared, beyond his comprehension. With these views, he looked to the Convention at Annapolis as likely to result in a plan which would give to the federal government efficient powers for all commercial purposes, although he regretted that more objects had not been embraced in the project for the meeting. The failure of this attempt to enlarge the commercial powers of Congress, and the recommendation of a general convention made by the Annapolis commissioners, placed the country in an extremely delicate situation. Washington thought, when this recommendation was announced, that the people were not then sufficiently misled to retract their error, and entertained some doubt as to the consequences of an attempt to revise and amend the Articles of Confederation. Something, however, must be done, he said, or the fabric which was certainly tottering, would inevitably fall. "I think," said he, "often of our situation, and view it with concern. From the high ground we stood upon, from the plain path which invited our footsteps, to be so fallen, so lost, is really mortifying; but virtue, I fear, has in a great degree taken its departure from our land, and the want of a disposition to do justice is the source of the national embarrassments; for, whatever guise or color is given to them, this I apprehend is the origin of the evils we now feel, and probably shall labor under for some time yet."[392] At this time the legislature of Virginia were acting upon the subject of a delegation to the Federal Convention, and a general wish was felt to place Washington at the head of it. No opposition had been made in that body to the bill introduced for the purpose of organizing and instructing such a delegation, and it was thought advisable to give the proceeding all the weight which could be derived from a single State. To a private intimation of this desire of the legislature he returned a decided refusal. Several obstacles appeared to him to put his attendance out of the question. The principal reason that he assigned was, that he had already declined a re-election as President of the Society of the Cincinnati, and had signified that he should not attend their triennial general meeting, to be held in Philadelphia in the same month with the Convention.[393] He felt a great reluctance to do any thing which might give offence to those patriotic men, the officers of the army who had shared with him the labors and dangers of the war. He had declined to act longer with that Society, because the motives and objects of its founders had been misconceived and misrepresented. Originally a charitable institution, it had come to be regarded as anti-republican in its spirit and tendencies. Desiring, on the one hand, to avoid the charge of deserting the officers who had nobly supported him, and had always treated him with the greatest attention and attachment; and wishing, on the other hand, not to be thought willing to give his support to an institution generally believed incompatible with republican principles,--he had excused his attendance upon the ground of the necessity of attending to his private concerns. He had, in truth, a great reluctance to appear again upon any public theatre. His health was far from being firm; he felt the need and coveted the blessing of retirement for the remainder of his days; and although some modifications of the Society whose first President he had been, were then allaying the jealousies it had excited, he withdrew from this, the last relation which had kept him in a conspicuous public position. But Washington at Mount Vernon, cultivating his estate, and rarely leaving his own farms, was as conspicuous to the country as if he were still placed in the most active and important public stations. All eyes were turned to him in this emergency; all thoughts were employed in considering whether his countenance and his influence would be given to this attempt to create a national government for the States whose liberties he had won. And his friends represented to him, that the posture of public affairs would prevent any criticism on the situation in which the contemporary meeting of the Cincinnati would place him, if he were to accept a seat in the Convention. Still, when the official notice of his appointment came, in December, he formally declined, but was requested by the Governor of the State to reserve his decision.[394] At this moment, the insurrection in Massachusetts broke upon him like a thunderbolt. "What, gracious God!" he exclaimed, "is man, that there should be such inconsistency and perfidiousness in his conduct! It was but the other day that we were shedding our blood to obtain the constitutions under which we now live,--constitutions of our own choice and making,--and now we are unsheathing the sword to overturn them! The thing is so unaccountable, that I hardly know how to realize it, or to persuade myself that I am not under the illusion of a dream."[395] It was clear that, in case of civil discord and open confusion extending through any considerable part of the country, he would be obliged to take part on one side or the other, or to withdraw from the continent; and he, as well as other reflecting men, were not without fears that the disturbances in the Eastern States might extend throughout the Union. He consulted with his friends in distant parts of the country, and requested their advice, but still, as late as February, hesitated whether he should attend the Convention. In that month, he heard of the suppression of the rebellion in Massachusetts; but the developments which it had made of the state of society, the necessity which it had revealed for more coercive power in the institutions of the country, and the fear which it had excited that this want might lead men's minds to entertain the idea of monarchical government, finally decided him to accept the appointment. The possibility that his absence at such a juncture might be construed into what he called "a dereliction of republicanism," seems to have influenced his decision more than all other reasons. Congress, it is true, had now sanctioned the Convention, and this had removed one obstacle which had weighed with him and with others. He entertained great doubts as to the result of the experiment, but was entirely satisfied that it ought to be tried.[396] He left Mount Vernon in the latter part of April. Public honors attended him everywhere on his route. At Chester, fifteen miles from the city of Philadelphia, he was met by the Speaker of the Assembly of Pennsylvania and several officers and gentlemen of distinction, who accompanied him to Gray's Ferry, where a military escort was in waiting to receive him and conduct him into the city. On his arrival, he immediately paid a visit to Dr. Franklin, at that time President of the State of Pennsylvania.[397] On the assembling of the Convention, Robert Morris, by the instruction and in behalf of the deputation of Pennsylvania, proposed that General Washington should be elected President. John Rutledge of South Carolina seconded this suggestion, observing that the presence of General Washington forbade any observations on the occasion which might otherwise be proper.[398] His opinions, at the time when he took the chair of the Convention, as to what was proper to be done, and what was practicable, can only be gathered from his correspondence. He had formed some general views of the principles on which a national government should be framed, but he had not proceeded at all to the consideration of details. The first and most important object he held to be, to establish such a constitution as would secure and perpetuate the republican form of government, by satisfying the wants of the country and the time, and thus checking all tendency to monarchical ideas. He had come to the Convention, as we have seen, in order that the great experiment of self-government, on which this country had entered at the Revolution, might have a further trial beyond the hazards of the hour. He knew--he had had occasion to know--that the thought of a monarchy, as being necessary to the safety of the country, had been to some extent entertained. There had been those in a former day, in the darkest period of the war, who had proposed to him to assume a crown,--men who could possibly have bestowed it upon him, or have assisted him to acquire it,--but who met a rebuke which the nature of their proposition and his character should have taught them to expect. There were those in that day who sincerely despaired of republican liberty, and who had allowed themselves to think that some of the royal families of Europe might possibly furnish a sovereign fitted to govern and control the turbulent elements of our political condition. Washington understood the genius and character of the people of this country so well, that he held it to be impossible ever to establish that form of government over them without the deepest social convulsions. It was the form of the government against which they had waged a seven years' war; and it was certain that, apart from all questions of theoretical fitness or value, nothing but the most frightful civil disorders, menacing the very existence of society itself, could ever bring them again under its sway. He was also satisfied, that, whatever particular system was to be adopted, it must be one that would create a national sovereignty and give it the means of coercion. What the nature of that coercion ought to be, he had not considered; but that obedience to the ordinances of a general government could not be expected, unless it was clothed with the power of enforcing them, all his experience during the war, and all his observation since, had fully satisfied him. He was convinced, also, that powers of a more extensive nature, and which would comprehend other objects, ought to be given to the general government; that Congress should be so placed as to enable and compel them to exert their constitutional authority with a firm and steady hand, instead of referring it back to the States. He proposed to adopt no temporizing expedients, but to have the defects of the Confederation thoroughly examined and displayed, and a radical cure provided, whether it were accepted or not. A course of this kind, he said, would stamp wisdom and dignity on their proceedings, and hold up a light which sooner or later would have its influence.[399] Persuaded that the primary cause of all the public disorders lay in the different State governments, and in the tenacity with which they adhered to their State powers, he saw that incompatibility in the laws of different States and disrespect to the authority of the Union must continue to render the situation of the country weak, inefficient, and disgraceful. The principle with which he entered the Convention, and on which he acted throughout to the end, was, "with a due consideration of circumstances and habits, to form such a government as will bear the scrutinizing eye of criticism, and trust it to the good sense and patriotism of the people to carry it into effect."[400] The character of Washington as a statesman has, perhaps, been somewhat undervalued, from two causes; one of them being his military greatness, and the other, the extraordinary balance of his mind, which presented no brilliant and few salient qualities. Undoubtedly, as a statesman he was not constructive, like Hamilton, nor did he possess the same abundant and ever-ready resources. He was eminently cautious, but he was also eminently sagacious. He had had a wide field of observation during the war, the theatre of which, commencing in New England, had extended through the Middle and into the Southern States. He had, of course, been brought in contact with the men and the institutions of all the States, and had been concerned in their conflicts with the federal authority, to a greater extent than any other public man of the time. This experience had not prepared him--as the character of his mind had not prepared him--to suggest plans or frame institutions fitted to remedy the evils he had observed, and to apply the principles which he had discovered. But it had revealed to him the dangers and difficulties of our situation, and had made him a national statesman, as incapable of confining his politics to the narrow scale of local interests and attachments, as he had been of confining his exertions to the object of achieving the liberties of a single state. He would have been fitly placed in the chair of any deliberative assembly into which he might have been called at any period of his life; but it was preëminently suitable that he should occupy that of the Convention for forming the Constitution. He had no talent for debate, and upon the floor of this body he would have exerted less influence, and have been far less the central object towards which the opinions and views of the members were directed, than he was in the high and becoming position to which he was now called. FOOTNOTES: [389] Madison's Debates in the Federal Convention. Elliot, V. 244. [390] Washington's Writings, IX. 166. [391] Washington's Writings, IX. 121. [392] Washington's Writings, IX. 167. [393] Washington's Writings, IX. 212. [394] Washington's Writings, IX. 219. [395] Washington's Writings, IX. 221. [396] Washington's Writings, IX. 236. [397] Sparks's Life of Washington, p. 435. [398] Madison's Debates, Elliot, V. 123. [399] Washington's Writings, IX. 250. [400] Washington's Writings, IX. 258. CHAPTER VIII. HAMILTON. Next to the august name of the President should be mentioned that great man who, as a statesman, towered above all his compeers, even in that assembly of great men,--Alexander Hamilton. This eminent person is probably less well known to the nation at the present day, than most of the leading statesmen of the Revolution. There are causes for this in his history. He never attained to that high office which has conferred celebrity on inferior men. The political party of which he was one of the founders and one of the chief leaders became unpopular with the great body of his countrymen before it was extinct. His death, too, at the early age of forty-seven, while it did not leave an unfinished character, left an unfinished career, for the contemplation of posterity. In this respect, his fate was unlike that of nearly all his most distinguished contemporaries. Washington, Adams, Jefferson, Madison, Jay, and in fact almost all the prominent statesmen of the Revolution, died in old age or in advanced life, and after the circle of their public honors and usefulness had been completed. Hamilton was cut off at a period of life when he may be said to have had above a third of its best activity yet before him: and this is doubtless one cause why so little is popularly known, by the present generation, of him who was by far the greatest statesman of the Revolutionary age. It is known, indeed, traditionally, what a thrill of horror--what a sharp, terrible pang--ran through the nation, proving the comprehension by the entire people of what was lost, when Aaron Burr took from his country and the world that important life. In the most distant extremities of the Union, men felt that one of the first intellects of the age had been extinguished. From the utmost activity and public consideration, in the fulness of his strength and usefulness, the bullet of a duellist had taken the first statesman in America;--a man who, while he had not been without errors, and while his life had not been without mistakes, had served his country, from his boyhood to that hour of her bitter bereavement, with an elevation of purpose and a force of intellect never exceeded in her history, and which had caused Washington to lean upon him and to trust him, as he trusted and leaned upon no other man, from first to last. The death of such a man, under such circumstances, cast a deep gloom over the face of society; and Hamilton was mourned by his contemporaries with a sorrow founded on a just appreciation of his greatness, and of what they owed to his intellect and character. But by the generations that have succeeded he has been less intimately known than many of his compatriots, who lived longer, and reached stations which he never occupied. He was born in the island of St. Christopher's, in the year 1757; his mother being a native of that island, and his father being a Scotchman. At the age of fifteen, after having been for three years in the counting-house of a merchant at Santa Cruz, he was sent to New York to complete his education, and was entered as a private student in King's (now Columbia) College. At the age of seventeen, his political life was already begun; for at that age, and while still at college, he wrote and published a series of essays on the Rights of the Colonies, which attracted the attention of the whole country. These essays appeared in 1774, in answer to certain pamphlets on the Tory side of the controversy; and in them Hamilton reviewed and vindicated the whole of the proceedings of the first Continental Congress. There are displayed in these papers a power of reasoning and sarcasm, a knowledge of the principles of government and of the English Constitution, and a grasp of the merits of the whole controversy, that would have done honor to any man at any age, and in a youth of seventeen are wonderful. To say that they evince precocity of intellect, gives no idea of their main characteristics. They show great maturity;--a more remarkable maturity than has ever been exhibited by any other person, at so early an age, in the same department of thought. They produced, too, a great effect. Their influence in bringing the public mind to the point of resistance to the mother country, was important and extensive. Before he was nineteen years old, Hamilton entered the army as a captain of artillery; and when only twenty, in 1777, he was selected by Washington to be one of his aides-de-camp, with the rank of lieutenant-colonel. In this capacity he served until 1782, when he was elected a member of Congress from the State of New York, and took his seat. In 1786, he was chosen a member of the legislature of New York. In 1787, he was appointed as a delegate to the Convention which framed the Constitution. In the following year, when only thirty years old, he published, with Madison and Jay, the celebrated essays called "The Federalist," in favor of the form of government proposed by the Convention. In 1788, he became a member of the State Convention of New York, called to ratify the Constitution, and it was chiefly through his influence that it was adopted in that State. In 1789, he took office in Washington's administration, as Secretary of the Treasury. In 1795, he retired to the practice of the law in the city of New York. In 1798, at Washington's absolute demand, he was appointed second in command of the provisional army, raised under the elder Adams's administration, to repel an apprehended invasion of the French. On the death of Washington, in 1799, he succeeded to the chief command. When the army was disbanded, he again returned to the bar, and practised with great reputation until the year 1804, when his life was terminated in a duel with Colonel Burr, concerning which the sole blame that has ever been imputed to Hamilton is, that he felt constrained to accept the challenge. His great characteristic was his profound insight into the principles of government. The sagacity with which he comprehended all systems, and the thorough knowledge he possessed of the working of all the freer institutions of ancient and modern times, united with a singular capacity to make the experience of the past bear on the actual state of society, rendered him one of the most useful statesmen that America has known. Whatever in the science of government had already been ascertained; whatever the civil condition of mankind in any age had made practicable or proved abortive; whatever experience had demonstrated; whatever the passions, the interests, or the wants of men had made inevitable,--he seemed to know intuitively. But he was no theorist. His powers were all eminently practical. He detected the vice of a theory instantly, and shattered it with a single blow. His knowledge, too, of the existing state of his own and of other countries was not less remarkable than his knowledge of the past. He understood America as thoroughly as the wisest of his contemporaries, and he comprehended Europe more completely than any other man of that age upon this continent.[401] To these characteristics he added a clear logical power in statement, a vigorous reasoning, a perfect frankness and moral courage, and a lofty disdain of all the arts of a demagogue. His eloquence was distinguished for correctness of language and distinctness of utterance, as well as for grace and dignity. In theory, he leaned decidedly to the constitution of England, as the best form of civil polity for the attainment of the great objects of government. But he was not, on that account, less a lover of liberty than those who favored more popular and democratic institutions. His writings will be searched in vain for any disregard of the natural rights of mankind, or any insensibility to the blessings of freedom. It was because he believed that those blessings can be best secured by governments in which a change of rulers is not of frequent occurrence, that he had so high an estimate of the English Constitution. At the period of the Convention, he held that the chief want of this country was a government into which the element of a permanent tenure of office could be largely infused; and he read in the Convention--as an illustration of his views, but without pressing it--a plan by which the Executive and the Senate could hold their offices during good behavior. But the idea, which has sometimes been promulgated, that he desired the establishment of a monarchical government in this country, is without foundation. At no period of his life did he regard that experiment as either practicable or desirable. Hamilton's relation to the Constitution is peculiar. He had less direct agency in framing its chief provisions than many of the other principal persons who sat in the Convention; and some of its provisions were not wholly acceptable to him when framed. But the history, which has been detailed in the previous chapters of this work, of the progress of federal ideas, and of the efforts to introduce and establish principles tending to consolidate the Union, has been largely occupied with the recital of his opinions, exertions, and prevalent influence. Beginning with the year 1780, when he was only three-and-twenty years of age, and when he sketched the outline of a national government strongly resembling the one which the Constitution long afterwards established; passing through the term of his service in Congress, when his admirable expositions of the revenue system, the commercial power, and the ratio of contribution, may justly be said to have saved the Union from dissolution; and coming down to the time when he did so much to bring about, first, the meeting at Annapolis, and then the general and final Convention of all the States;--the whole period is marked by his wisdom and filled with his power. He did more than any other public man of the time to lessen the force of State attachments, to create a national feeling, and to lead the public mind to a comprehension of the necessity for an efficient national sovereignty. Indeed, he was the first to perceive and to develop the idea of a real union of the people of the United States. To him, more than to any one else, is to be attributed the conviction that the people of the different States were competent to establish a general government by their own direct action; and that this mode of proceeding ought to be considered within the contemplation of the State legislatures, when they appointed delegates to a convention for the revision and amendment of the existing system.[402] The age in which he lived, and the very extraordinary early maturity of his character, naturally remind us of that remarkable person who was two years his junior, and who became prime-minister of England at the age of twenty-four. The younger Pitt entered public life with almost every possible advantage. Inheriting "a great and celebrated name,"[403] educated expressly for the career of a statesman, and introduced into the House of Commons at a moment when power was just ready to drop into the hands of any man capable of wielding it, he had only to prove himself a brilliant and powerful debater, in order to become the ruler of an empire, whose constitution had been settled for ages, and was necessarily administered by the successful leaders of regular parties in its legislative body. That he was a most eminent parliamentary orator, a consummate tactician and leader of party, a minister of singular energy, and a statesman of a very high order of mind and character, at an age when most men are scarcely beginning to give proofs of what they may become,--all this History has deliberately and finally recorded. What place it may assign to him among the statesmen by whose lives and actions England and the world have been materially and permanently benefited is not yet settled, and it is not to the present purpose to consider. The theatre in which Hamilton appeared, lived, and acted, was one of a character so totally different, that the comparison necessarily ends with the contrast which it immediately suggests. Like Pitt, indeed, he seems to have been born a statesman, and to have had no such youth as ordinarily precedes the manhood of the mind. But, in the American colonies, no political system of things existed that was fitted to train him for a career of usefulness and honor; and yet, when the years of his boyhood were hardly ended, he sprang forth into the troubled affairs of the time, with the full stature of a matured and well-furnished statesman. He, in truth, showed himself to be already the man that was wanted. Every thing was in an unsettled and anxious state;--a state of change and transition. There was no regular, efficient government. It was all but a state of civil war, and the more clear-sighted saw that this great disaster was coming. He was compelled, therefore, to mark out for himself, step by step, beginning in 1774, a system of political principles which should serve, not to administer existing institutions with wisdom and beneficence, but to create institutions able to unite a people divided into thirteen independent sovereignties; to give them the attitude and capacity of an independent nation; and then to carry them on, with constantly increasing prosperity and power, to their just place in the affairs of the world. It was a great work, but Mr. Hamilton was equal to it. He was by nature, by careful study, and by still more careful, anxious, and earnest thought, eminently fitted to detect and develop those resources of power and progress, which, in the dark condition of society that attends and follows an exhausting period of revolution, lie hidden, like generous seeds, until some strong hand disencumbers them of the soil with which they had been oppressed, and gives them opportunity to germinate and bear golden fruit. At the age of three-and-twenty he had already formed well-defined, profound, and comprehensive opinions on the situation and wants of these States. He had clearly discerned the practicability of forming a confederated government, and adapting it to their peculiar condition, resources, and exigencies. He had wrought out for himself a political system, far in advance of the conceptions of his contemporaries, and one which, in the hands of those who most opposed him in life, became, when he was laid in a premature grave, the basis on which this government was consolidated; on which, to the present day, it has been administered; and on which alone it can safely rest in that future, which seems so to stretch out its unending glories before us. Mr. Hamilton, therefore, I conceive, proved himself early to be a statesman of greater talent and power than the celebrated English minister whose youthful success was in the eyes of the world so much more brilliant, and whose early death was no less disheartening; for none can doubt, that to build up a free and firm state out of a condition of political chaos, and to give it a government capable of developing the resources of its soil and people, and of insuring to it prosperity, power, and permanence, is a greater work than to administer with energy and success--even in periods of severe trial--the constitution of an empire whose principles and modes of action have been settled for centuries. Hamilton was one of those statesmen who trust to the efficacy of the press for the advancement and inculcation of correct principles of public policy, and who desire to accomplish important results mainly through the action of an enlightened public opinion. That he had faith in the intelligence and honesty of his countrymen, is proved by the numerous writings which he constantly addressed to their reason and good sense, in the shape of essays or letters, from the beginning to the end of his career, upon subjects on which it was important that they should act with wisdom and principle. His own opinions, although held with great firmness, were also held in subordination to what was practicable. It was the rare felicity of his temperament, to be able to accept a less good than his principles might have led him to insist upon, and to labor for it, when nothing better could be obtained, with as much patriotic energy and zeal as if it had been the best result of his own views. The Constitution itself remains, in this particular, a monument of the disinterestedness of his character. He thought it had great defects. But he accepted it, as the best government that the wisdom of the Convention could frame, and the best that the nation would adopt. In this spirit, as soon as it was promulgated for the acceptance of the country, he came forward and placed himself in the foremost rank of its advocates, making himself, for all future time, one of the chief of its authoritative expounders. He was very ably assisted in the Federalist by Madison and Jay; but it was from him that the Federalist derived the weight and the power which commanded the careful attention of the country, and carried conviction to the great body of intelligent men in all parts of the Union. The extraordinary forecast with which its luminous discussions anticipated the operation of the new institutions, and its profound elucidation of their principles, gave birth to American constitutional law, which was thus placed at once above the field of arbitrary constructions and in the domain of legal truth. They made it a science; and so long as the Constitution shall exist, they will continue to be resorted to as the most important source of contemporaneous interpretation which the annals of the country afford.[404] In the two paramount characters of statesman and jurist, in the comprehensive nature of his patriotism, in his freedom from sectional prejudices, in his services to the Union, and in the kind and magnitude of his intellect, posterity will recognize a resemblance to him whom America still mourns with the freshness of a recent grief, and who has been to the Constitution, in the age that has succeeded, what Hamilton was in the age that witnessed its formation and establishment. Without the one of these illustrious men, the Constitution probably would never have existed; without the other, it might have become a mere record of past institutions, whose history had been glorious until faction and civil discord had turned it into a record of mournful recollections. The following sentences, written by Hamilton soon after the adjournment of the Convention, contain a clew to all his conduct in support of the plan of government which that body recommended:--"It may be in me a defect of political fortitude, but I acknowledge that I cannot feel an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. A nation without a national government is an awful spectacle. The establishment of a constitution, in a time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which I look forward with trembling anxiety." FOOTNOTES: [401] While these sheets are passing through the press, Mr. Ticknor writes to me as follows: "One day in January, 1819, talking with Prince Talleyrand, in Paris, about his visit to America, he expressed the highest admiration of Mr. Hamilton, saying, among other things, that he had known nearly all the marked men of his time, but that he had never known one, on the whole, equal to him. I was much surprised and gratified with the remark; but still, feeling that, as an American, I was in some sort a party concerned by patriotism in the compliment, I answered with a little reserve, that the great military commanders and the great statesmen of Europe had dealt with larger masses and wider interests than he had. 'Mais, Monsieur,' the Prince instantly replied, 'Hamilton avoit _deviné_ l'Europe.'" [402] See his first speech in the Convention, as reported by Mr. Madison. [403] Burke, speaking of Lord Chatham. [404] The current editions of the Federalist are taken from an edition published at Washington in 1818, by Jacob Gideon, in which the numbers written by Mr. Madison purport to have been corrected by himself. There had been three editions previous to this. The first edition was published in 1788, in two small volumes, by J. & A. McLean, 41 Hanover Square, New York, under the following title: "The Federalist: a Collection of Essays written in Favor of the New Constitution, as agreed upon by the Federal Convention, September 17, 1787." The first volume was issued before the last of the essays were written, and the second followed it, as soon as the series was completed. The authentic text of the work is to be found in this edition; two of the authors were in the city of New York at the time it was printed, and probably superintended it. It was reissued from the same type, in 1789, by John Tiebout, 358 Pearl Street, New York. A second edition was published in 1802, at New York, in two volumes, containing also "Pacificus on the Proclamation of Neutrality, and the Constitution, with its Amendments." A third edition was published in 1810, by Williams & Whiting, New York. I have seen copies of the first and second editions only, in the library of Peter Force, Esq., of Washington, editor of the "American Archives." There are some discrepancies between the text of the first edition and that of 1818, from which the current editions are taken. By whom or on what authority the alterations were made, I have not been able to ascertain, nor have I learned when, or why, or how far Mr. Madison may have corrected or altered the papers which he wrote. Such of the changes as I have examined do not materially affect the sense; but it is very desirable that the true text of the Federalist should be reproduced. That text exists in the first edition, which was issued while the Constitution was before the people of the United States for their ratification; and as the Federalist was an argument addressed to the people in favor of the adoption of the Constitution, the exact text of that argument, as it was read and acted upon, ought to be restored, without regard to the reasons which may have led any of the writers, or any one else, to alter it. I know of no evidence that Colonel Hamilton ever made or sanctioned the alteration of a word. After the text of the Constitution itself, there is scarcely any thing the preservation of which is more important than the text of the Federalist as it was first published. CHAPTER IX. MADISON. From Hamilton we naturally turn to his associate in the Federalist,--James Madison, afterwards fourth President of the United States,--whose faithful and laborious record has preserved to us the debates of the Convention. * * * * * Mr. Madison was thirty-six years old when he entered that assembly. His previous life had fitted him to play a conspicuous and important part in its proceedings. He was born in 1751, of a good family, in Orange County, Virginia, and was educated at Princeton College in New Jersey, where he took the degree of Bachelor of Arts in 1772. He returned to Virginia in the spring of 1773, and commenced the usual studies preparatory to an admission to the bar; but the disputes between the Colonies and the mother country soon drew him into public life. In 1776, he became a member of the State Convention which formed the first Constitution of Virginia. He was afterwards a member of the legislature and of the Council of the State, until he was appointed one of its delegates in Congress, where he took his seat in March, 1780.[405] From this time to the assembling of the Federal Convention in 1787, his services to the Union were of the most important character. He entered Congress without a national reputation, but with national views. Indeed, it may be said of him, that he came from his native Commonwealth,--"mother of great men,"--grown to the full proportions of a continental statesman. At the moment when he appeared upon the larger theatre of the national interests, the Articles of Confederation had not been finally ratified by all the States. Maryland had insisted, as a necessary condition of her accession to the new Confederacy, that the great States should surrender to the Union their immense claims to the unoccupied territories of the West; Virginia had remonstrated against this demand; and the whole scheme of the Confederation had thus been long encountered by an apparently insurmountable obstacle.[406] The generous example of New York, whose Western claims were ceded to the United States in the month preceding Mr. Madison's entry into Congress, had furnished to the advocates of the Union the means for a powerful appeal to both sides of this critical and delicate controversy; but it required great tact, discretion, and address to make that appeal effectual, by inducing Maryland to trust to the influence of this example upon Virginia, and by inducing Virginia to make a cession that would be satisfactory to Maryland. In this high effort of statesmanship--a domestic diplomacy full of difficulties--Mr. Madison took part. He did not prepare the very skilful report which, while it aimed to produce cessions of their territorial claims by the larger States, appealed to Maryland to anticipate the result;[407] but the vast concession by which Virginia yielded the Northwestern Territory to the Union was afterwards brought about mainly by his exertions. In 1782, he united with Hamilton in the celebrated report prepared by the latter upon the refusal of the State of Rhode Island to comply with the recommendations of Congress for a duty on imports.[408] In 1783, he was named first upon a committee with Ellsworth and Hamilton, to prepare an Address to the States, urging the adoption of the revenue system which has been described in a previous chapter, and the Address was written by him.[409] The great ability and high tone of this paper gave it a striking effect. The object of this plan of revenue was, as we have seen, to fund the national debts, and to make a sufficient provision for their discharge. I have already assigned to it the merit of having preserved the Union from the premature decay that had begun to destroy its vitality;[410] and it may here be added, that the statesman whose pen could produce the comprehensive and powerful appeal by which it was pressed upon the States, was certain to become one of the chief founders of the Constitution of which the plan itself was the forerunner. It settled the fact, that a national unity in dealing with the debts of the Revolution was "necessary to render its fruits a full reward for the blood, the toils, the cares, and the calamities which had purchased them." Such were Mr. Madison's most important services in the Congress of the Confederation; but they are of course not the whole. A member so able and of such broad and national views must have had a large agency in every important transaction; and accordingly the Journals, during the whole period of his service, bear ample testimony to his activity, his influence, and his zeal. At the close of the war, he retired to Virginia, and during the three following years was a member of the legislature, still occupied, however, with the interests of the Union. His attention was specially directed to the subject of enlarging the powers of Congress over the foreign trade of the country. It is a striking fact, and a proof of the comprehensive character of Mr. Madison's statesmanship, that Virginia, a State not largely commercial, should have taken so prominent a part in the efforts to give the control of commerce to the general government;--an object which has justly been regarded as the corner-stone of the Constitution. It arose partly from the accident of her geographical position, which made it necessary for her to aim at something like uniformity of regulation with the other States which bordered upon her contiguous waters; but it is also to be attributed to the enlightened liberality and forecast of her great men, who saw in the immediate necessities of their own State the occasion for a measure of general advantage to the country. Mr. Madison's first effort was, to procure a declaration by the legislature of Virginia of the necessity for a uniform regulation of the commerce of the States by the federal authority. For this purpose, he introduced into the legislature a series of propositions, intended to instruct the delegates of the State in Congress to propose a recommendation to the States to confer upon Congress power to regulate their trade and to collect a revenue from such regulation. This measure, as we have seen, encountered the opposition of those who preferred a temporary to a perpetual and irrevocable grant of such power; and the propositions were so much changed in the Committee of the Whole, that they were no longer acceptable to their original friends. The steps which finally led the legislature of Virginia to recommend a general convention of all the States have been detailed in a previous chapter of this work; but it is due to Mr. Madison's connection with this movement, that they should here be recapitulated with reference to his personal agency in the various transactions. A conflict of jurisdiction between the two States of Virginia and Maryland over the waters which separated them had, in the spring of 1785, led to the appointment of commissioners on the part of each State, who met at Alexandria in March. These commissioners, of whom Mr. Madison was one, made a visit to General Washington at Mount Vernon, and it was there proposed that the two States, whose conflicting regulations, ever since the peace, had produced great inconvenience to their merchants, and had been a constant source of irritation, should be recommended by the commissioners to make a compact for the regulation of their impost and foreign trade. Mr. Madison has left no written claim, that I am aware of, to the authorship of this suggestion, but there exists evidence of his having claimed it in conversation.[411] The recommendation was made by the commissioners, and their report was adopted by both States;--by Virginia unconditionally, and by Maryland with the qualification that the States of Delaware and Pennsylvania should be invited to unite in the plan. After the commercial propositions introduced by Mr. Madison had lain on the table for some time as a report from the Committee of the Whole, the report of the Alexandria commissioners was received and ratified by the legislature of Virginia. Although the friends of those propositions were gradually increasing, Mr. Madison had no expectation that a majority could be obtained in favor of a grant of commercial powers to Congress for a longer term than twenty-five years. The idea of a general convention of delegates from all the States, which had been for some time familiar to Mr. Madison's mind, then suggested itself to him, and he prepared and caused to be introduced the resolution which led to the meeting that afterwards took place at Annapolis, for the purpose of digesting and reporting the requisite augmentation of the powers of Congress over trade.[412] His resolution, he says, being, on the last day of the session, "the alternative of adjourning without any effort for the crisis in the affairs of the Union, obtained a general vote; less, however, with some of its friends, from a confidence in the success of the experiment, than from a hope that it might prove a step to a more comprehensive and adequate provision for the wants of the Confederacy."[413] Mr. Madison was appointed one of the commissioners of Virginia to the meeting at Annapolis. There he met Hamilton, who came meditating nothing less than the general revision of the whole system of the Federal Union, and the formation of a new government. Mr. Madison, although less confident than the great statesman of New York as to the measures that ought to be taken, had yet for several years been equally convinced that the perpetuity and efficacy of the existing system could not be confided in. He therefore concurred readily in the report recommending a general convention of all the States; and when that report was received in the legislature of Virginia, he became the author of the celebrated act which passed that body on the 4th of December, 1786, and under which the first appointment of delegates to the Convention was made. It was also chiefly through his exertions, combined with the influence of Governor Randolph, that General Washington's name was placed at the head of the delegation, and that he was induced to accept the appointment. Mr. Madison himself was the fourth member of the delegation. In the Convention, his labors must have been far more arduous than those of any other member of the body. He took a leading part in the debates, speaking upon every important question; and in addition to all the usual duties devolving upon a person of so much ability and influence, he preserved a full and careful record of the discussions with his own hand. Impressed, as he says, with the magnitude of the trust confided to the Convention, and foreseeing the interest that must attach to an authentic exhibition of the objects, the opinions, and the reasonings from which the new system of government was to receive its peculiar structure and organization, he devoted the hours of the night succeeding the session of each day to the preparation of the record with which his name is imperishably associated. "Nor was I," he adds, "unaware of the value of such a contribution to the fund of materials for the history of a Constitution on which would be staked the happiness of a people, great even in its infancy, and possibly the cause of liberty throughout the world."[414] As a statesman, he is to be ranked, by a long interval, after Hamilton; but he was a man of eminent talent, always free from local prejudices, and sincerely studious of the welfare of the whole country. His perception of the principles essential to the continuance of the Union and to the safety and prosperity of the States, was accurate and clear. His studies had made him familiar with the examples of ancient and modern liberty, and he had carefully reflected upon the nature of the government necessary to be established. He was one of the few persons who carried into the Convention a conviction that an amendment of the Articles of Confederation would not answer the exigencies of the time. He regarded an individual independence of the States as irreconcilable with an aggregate sovereignty of the whole, but admitted that a consolidation of the States into a simple republic was both impracticable and inexpedient. He sought, therefore, for some middle ground, which would at once support a due supremacy of the national authority, and leave the local authorities in force for their subordinate objects. For this purpose, he conceived that a system of representation which would operate without the intervention of the States was indispensable; that the national government should be armed with a positive and complete authority in all cases where a uniformity of measures was necessary, as in matters of trade, and that it should have a negative upon the legislative acts of the States, as the crown of England had before the Revolution. He thought, also, that the national supremacy should be extended to the judiciary, and foresaw the necessity for national tribunals, in cases in which foreigners and citizens of different States might be concerned, and also for the exercise of the admiralty jurisdiction. He considered two branches of the legislature, with distinct origins, as indispensable; recognized the necessity for a national executive, and favored a council of revision of the laws, in which should be included the great ministerial officers of the government. He saw also, that, to give the new system its proper energy, it would be necessary to have it ratified by the authority of the people, and not merely by that of the legislatures.[415] Such was the outline of the project which he had formed before the assembling of the Convention. How far his views were modified by the discussions in which he took part will be seen hereafter. As a speaker in a deliberative assembly, the successive schools in which he had been trained had given him a habit of self-possession which placed all his resources at his command. "Never wandering from his subject," says Mr. Jefferson, "into vain declamation, but pursuing it closely, in language pure, classical, and copious, soothing always the feelings of his adversaries by civilities and softness of expression, he rose to the eminent station which he held in the great national Convention of 1787; and in that of Virginia which followed, he sustained the new Constitution in all its parts, bearing off the palm against the logic of George Mason and the fervid declamation of Mr. Henry. With these consummate powers were united a pure and spotless virtue, which no calumny has ever attempted to sully."[416] Mr. Madison's greatest service in the national Convention consisted in the answers which he made to the objections of a want of power in that assembly to frame and propose a new constitution, and his paper on this subject in the Federalist is one of the ablest in the series. As this work is confined to the period which terminated with the adoption of the Constitution, it is not necessary to examine those points on which the two principal writers of the Federalist became separated from each other, when the administration of the government led to the formation of the first parties known in our political history. These topics it may become my duty to discuss hereafter, should I pursue the constitutional history of the country through the administration of Washington. At present, it may be recorded of both, that, upon almost all the great questions that arose before the Constitution was finally adopted, the single purpose of establishing a system as efficient as the theory of a purely republican government would admit, was the object of their efforts; and that, although they may have differed with regard to the details and methods through which this object was to be reached, the purpose at which they both aimed places them in the same rank at the head of those founders of our government, towards whom the gratitude of the succeeding generations of America must be for ever directed.[417] FOOTNOTES: [405] Article "Madison" in the Penny Encyclopædia, written for that work by Professor George Tucker of the University of Virginia. [406] Ante, pp. 131-141. [407] It was drawn by James Duane of New York. [408] Ante, pp. 174, 206-208. [409] Ante, pp. 177-179. [410] Ante, pp. 176, 186, 188. [411] In preparing the note to page 342 (ante), I refrained from attributing to General Washington the suggestion of the enlarged plan recommended by the Alexandria commissioners, although it was concerted at his house, because there is no evidence, beyond that fact, of his having proposed this enlargement of the plan. Since that note was printed, I have learned in a direct manner, that Mr. Madison had stated to the Hon. Edward Coles, formerly his private secretary and afterwards Governor of Illinois, that he (Mr. Madison) first suggested it. In assigning, therefore, to the different individuals who took a prominent part in the measures which led to the formation of the Constitution, the various suggestions which had an important influence upon the course of events,--a curious and interesting inquiry,--I consider that to Mr. Madison belongs the credit of having originated that series of Virginia measures which brought about the meeting of commissioners of all the States at Annapolis, for the purpose of enlarging the powers of Congress over commerce; while Hamilton is to be considered the author of the plan in which the Convention at Annapolis was merged, for an entire revision of the federal system and the formation of a new constitution. [412] The resolve was introduced by Mr. Tyler, father of the Ex-President, a person of much influence in the legislature, and who had never been in Congress. Although prepared by Mr. Madison, it was not offered by him, for the reason that a great jealousy was felt against those who had been in the federal councils, and because he was known to wish for an enlargement of the powers of Congress. See Madison's Introduction to the Debates in the Convention, Elliot, V. 113. [413] Ibid., p. 114. [414] Introduction to the Debates, Elliot, V. 121. [415] Letter to Edmund Randolph, dated New York, April 8, 1787. [416] Jefferson's Autobiography. Works, I. 41, edition of 1853. [417] The following extract from an autograph letter of Mr. Madison, hitherto unpublished, which lies before me, written after the adoption of the Constitution, shows very clearly that he concurred with Hamilton in the opinion that the strongest government consistent with the republican form was necessary in the situation of this country. The letter is dated at Philadelphia, December 10, 1788, and is addressed to Philip Mazzei, at Paris. "Your book, as I prophesied, sells nowhere but in Virginia; a very few copies only have been called for, either in New York or in this city. The language in which it is written will account for it. In order to attract notice, I translated the panegyric in the French Mercure, and had it made part of the advertisement. I did not translate the comment on the Federal Constitution, as you wished, because I could not spare the time, as well as because I did not approve the tendency of it. Some of your remarks prove that Horace's '_Coelum non animum mutant qui trans mare currunt_' does not hold without exception. In Europe, the abuses of power continually before your eyes have given a bias to your political reflections, which you did not feel in equal degree when you left America, and which you would feel less of, if you had remained in America. Philosophers on the old continent, in their zeal against tyranny would rush into anarchy; as the horrors of superstition drive them into atheism. Here, perhaps, the inconveniences of relaxed government have reconciled too many to the opposite extreme. If your plan of a single legislature, as in Pennsylvania, &c., were adopted, I sincerely believe that it would prove the most deadly blow ever given to republicanism. Were I an enemy to that form, I would preach the very doctrines which are preached by the enemies to the government proposed for the United States. Many of our best citizens are disgusted with the injustice, instability, and folly which characterize the American administrations. The number has for some time been rapidly increasing. Were the evils to be much longer protracted, the disgust would seize citizens of every description. "It is of infinite importance to the cause of liberty to ascertain the degree of it which will consist with the purposes of society. An error on one side may be as fatal as on the other. Hitherto, the error in the United States has lain in the excess. "All the States, except North Carolina and Rhode Island, have ratified the proposed Constitution. Seven of them have appointed their Senators, of whom those of Virginia, R. H. Lee and Colonel Grayson, alone are among the opponents of the system. The appointments of Maryland, South Carolina, and Georgia will pretty certainly be of the same stamp with the majority. The House of Representatives is yet to be chosen, everywhere except in Pennsylvania. From the partial returns received, the election will wear a federal aspect unless the event in one or two particular counties should contradict every calculation. If the eight members from this State be on the side of the Constitution, it will in a manner secure the majority in that branch of the Congress also. The object of the anti-Federalists is, to bring about another general convention, which would either agree on nothing, as would be agreeable to some, and throw every thing into confusion, or expunge from the Constitution parts which are held by its friends to be essential to it. The latter party are willing to gratify their opponents with every supplemental provision for general rights, but insist that this can be better done in the mode provided for amendments. "I remain, with great sincerity, your friend and servant, "JAS. MADISON, JR." CHAPTER X. FRANKLIN. The Convention was graced and honored by the venerable presence of Dr. Franklin, then President of the State of Pennsylvania, and in his eighty-second year. He had returned from Europe only two years before, followed by the admiration and homage of the social, literary, and scientific circles of France; laden with honors, which he wore with a plain and shrewd simplicity; and in the full possession of that predominating common-sense, which had given him, through a long life, a widely extended reputation of a peculiar character. The oldest of the public men of America, his political life had embraced a period of more than half a century, extending back to a time when independence had not entered into the dreams of the boldest among the inhabitants of the English Colonies. For more than twenty years before the Revolution commenced, he had held a high and responsible office under the crown, the administration of which affected the intercourse and connection of all the Colonies;[418] and more than twenty years before the first Continental Congress was assembled, he had projected a plan of union for the thirteen Provinces which then embraced the whole of the British dominions in North America.[419] Nearly as long, also, before the Declaration of Independence, he had become the resident agent in England of several of the Colonies, in which post he continued, with a short interval, through all the controversies that preceded the Revolution, and until reconciliation with the mother country had become impossible.[420] Returning in 1775, he was immediately appointed by the people of Pennsylvania one of their delegates in the second Continental Congress. In the following year, he was sent as commissioner to France, where he remained until he was recalled, and was succeeded by Mr. Jefferson, in 1785. With the fame of his two residences abroad--the one before and the other after the country had severed its connection with England--the whole land was filled. The first of them, commencing with an employment for settling the miserable disputes between the people and the Proprietaries of Pennsylvania, was extended to an agency for the three other Colonies of Georgia, New Jersey, and Massachusetts, which finally led him to take part in the affairs of all British America, and made him virtually the representative of American interests. His brief service in Congress, during which he signed the Declaration of Independence, was followed by his appointment as Commissioner at the Court of Versailles, which he made the most important sphere that has ever been filled by any American in Europe, and in which that treaty of alliance with France was negotiated which enabled the United States to become in fact an independent nation. His long career of public service; his eminence as a philosopher, a philanthropist, and a thinker; the general reverence of the people for his character; his peculiar power of illustrating and enforcing his opinions by a method at once original, simple, and attractive,--made his presence of the first importance in an assembly which was to embrace the highest wisdom and virtue of America. It is chiefly, however, by the countenance he gave to the effort to frame a Constitution, that his services as a member of this body are to be estimated. His mind was at all times ingenious, rather than large and constructive; and his great age, while it had scarcely at all impaired his natural powers, had confirmed him in some opinions which must certainly be regarded as mistaken. His desire, for example, to have the legislature of the United States consist of a single body, for the sake of simplicity, and his idea that the chief executive magistrate ought to receive no salary for his official services, for the sake of purity, were both singular and unsound. But there were points upon which he displayed extraordinary wisdom, penetration, and forecast. When an objection to a proportionate representation in Congress was started, upon the ground that it would enable the larger States to swallow up the smaller, he declared that, as the great States could propose to themselves no advantage by absorbing their inferior neighbors, he did not believe they would attempt it. His recollection carried him back to the early part of the century, when the union between England and Scotland was proposed, and when the Scotch patriots were alarmed by the idea that they should be ruined by the superiority of England, unless they had an equal number of members in Parliament; and yet, notwithstanding the great inferiority in their representation as established by the act of union, he declared, that, down to that day, he did not recollect that any thing had been done in the Parliament of Great Britain to the prejudice of Scotland.[421] Although he spoke but seldom in the Convention, his influence was very great, and it was always exerted to cool the ardor of debate, and to check the tendency of such discussions to result in irreconcilable differences. His great age, his venerable and benignant aspect, his wide reputation, his acute and sagacious philosophy,--which was always the embodiment of good sense,--would have given him a controlling weight in a much more turbulent and a far less intelligent assembly. When--after debates in which the powerful intellects around him had exhausted the subject, and both sides remained firm in opinions diametrically opposed--he rose and reminded them that they were sent to consult and not to contend, and that declarations of a fixed opinion and a determination never to change it neither enlightened nor convinced those who listened to them, his authority was felt by men who could have annihilated any mere logical argument that might have proceeded from him in his best days. Dr. Franklin was one of those who entertained serious objections to the Constitution, but he sacrificed them before the Convention was dissolved. Believing a general government to be necessary for the American States; holding that every form of government might be made a blessing to the people by a good administration; and foreseeing that the Constitution would be well administered for a long course of years, and could only end in despotism when the people should have become so corrupted as to be incapable of any other than a despotic government, he gladly embraced a system which he was astonished to find approaching so near to perfection. "The opinions I have had of its errors," said he, "I sacrifice to the public good. Within these walls they were born, and here they shall die. If every one of us, in returning to our constituents, were to report the objections he has had to it, and endeavor to gain partisans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects and great advantages, resulting naturally in our favor, among foreign nations as well as among ourselves, from our real or apparent unanimity. Much of the strength and efficiency of any government in procuring and securing happiness to the people depends on opinion,--on the general opinion of the goodness of the government, as well as of the wisdom and integrity of its governors. I hope, therefore, that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (approved by Congress and confirmed by the conventions) wherever our influence may extend, and turn our future thoughts and endeavors to the means of having it well administered."[422] And thus, with a cheerful confidence in the future, sustaining the hopes of all about him, and hailing every omen that foretold the rising glories of his country,[423] this wise old man passed out from the assembly, when its anxious labors had been brought to a close with a nearer approach to unanimity than had ever been expected. He lived, borne down by infirmities, "To draw his breath in pain" for nearly three years after the Convention was dissolved; but it was to see the Constitution established, to witness the growing strength of the new government, and to contemplate the opening successes and the beneficent promise of Washington's administration. Writing to the first President in 1789, he said: "For my own personal ease, I should have died two years ago; but though those years have been spent in excruciating pain, I am pleased that I have lived them, since they have brought me to see our present situation."[424] FOOTNOTES: [418] In 1753, he was appointed Deputy Postmaster-General for the British Colonies, from which place he was dismissed in 1774, while in England, on account of the part he had taken in American affairs. [419] In 1754. See an account of this plan, ante, p. 8. [420] He first went to England in 1757, as agent of the Pennsylvania Assembly to settle their difficulties with the Proprietaries, where he remained until 1762. In 1764, he was reappointed provincial agent in England for Pennsylvania; in 1768, he received a similar appointment from Georgia; in 1769, he was chosen agent for New Jersey; and in 1770, he became agent for Massachusetts. His whole residence in England, from 1757 to 1775, embraced a period of sixteen years, two years having been passed at home. He resided in France about nine years, from 1776 to 1785. [421] He added, with his usual quiet humor, that "whoever looks over the lists of public officers, civil and military, of that nation, will find, I believe, that the North Britons enjoy their full proportion of emolument." Madison, Elliot, V. 179. [422] Madison, Elliot, V. 554. [423] Mr. Madison has recorded the following anecdote at the end of the Debates, as an incident worthy of being known to posterity. "Whilst the last members were signing, Dr. Franklin, looking towards the President's chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had often found it difficult, in their art, to distinguish a rising from a setting sun. 'I have,' said he, 'often and often, in the course of the session, and the vicissitude of my hopes and fears as to its issue, looked at that behind the President, without being able to tell whether it was rising or setting; but now, at length, I have the happiness to know that it is a rising, and not a setting sun.'" [424] Sparks's Life of Franklin, 528. CHAPTER XI. GOUVERNEUR MORRIS. This brilliant, energetic, and patriotic statesman was born in the Province of New York, at Morrisania,--the seat of his family for several generations,--in the year 1752. He was educated for the bar; but in 1775, at the age of three-and-twenty, he was elected a member of the Provincial Congress of New York, in which he became at once distinguished. When the recommendation of the Continental Congress to the Colonies, to organize new forms of government, was received, he took a leading place in the debates on the formation of a new constitution for the State; and when the subject of independence was brought forward, in order that the delegates of New York in the Continental Congress might be clothed with sufficient authority, he delivered a speech of great power, of which fragments only are preserved, but which evidently embraced the most comprehensive and statesmanlike views of the situation and future prospects of this country. Speaking of the capacity of America to sustain herself without a connection with Great Britain, he said:-- "Thus, Sir, by means of that great gulf which rolls its waves between Europe and America; by the situation of these Colonies, always adapted to hinder or interrupt all communication between the two; by the productions of our soil, which the Almighty has filled with every necessary to make us a great maritime people; by the extent of our coasts and those immense rivers, which serve at once to open a communication with our interior country, and to teach us the arts of navigation; by those vast fisheries, which, affording an inexhaustible mine of wealth and a cradle of industry, breed hardy mariners, inured to danger and fatigue; finally, by the unconquerable spirit of freemen, deeply interested in the preservation of a government which secures to them the blessings of liberty and exalts the dignity of mankind;--by all these, I expect a full and lasting defence against any and every part of the earth; while the great advantages to be derived from a friendly intercourse with this country almost render the means of defence unnecessary, from the great improbability of being attacked. So far, peace seems to smile upon our future independence. But that this fair goddess will equally crown our union with Great Britain, my fondest hopes cannot lead me to suppose. Every war in which she is engaged must necessarily involve us in its detestable consequences; whilst, weak and unarmed, we have no shield of defence, unless such as she may please (for her own sake) to afford, or else the pity of her enemies and the insignificance of slaves beneath the attention of a generous foe."[425] In 1778, Mr. Morris was chosen a delegate to the Continental Congress from the State of New York. His reputation for talent, zeal, activity, and singular capacity for business, had preceded him. On the very day when he presented his credentials, he was placed upon a committee to proceed to Valley Forge, to confer with General Washington on the measures necessary for a reorganization of the army. He remained in Congress for two years, discharging, with great ability and high patriotism, the most important functions, and subjected all the while to the most unjust popular suspicions of his fidelity to the cause of the country. Few of all the prominent men of the Revolution sacrificed or suffered more than Gouverneur Morris. The fact that all the other members of his family adhered to the royalist side, and an ineffectual effort which he once made to visit his mother, at his ancestral home, then within the British lines, gave his enemies the means of inflicting upon him a deep injury in the popular estimation. He was not re-elected to Congress; but short as his career in that body was, it was filled with services inferior to those of none of his associates. Before he left Congress, in February, 1779, he made--as chairman of a committee to whom certain communications from the French minister in the United States were referred--a report which became the basis of the peace that afterwards followed; and when the principles on which the peace was to be negotiated had been settled, he drew the instructions to the commissioners, and they were unanimously adopted without change.[426] On leaving Congress, Mr. Morris took up his residence in Philadelphia, and resumed the practice of the law. His remarkable talent for business, however, and his intimate knowledge of financial subjects, led to his appointment as Assistant Financier with Robert Morris. In this capacity, he suggested the idea of the decimal notation, which was afterwards made the basis of the coinage of the United States.[427] Having been appointed one of the delegates from the State of Pennsylvania to the Convention for forming the Constitution of the United States, Mr. Morris attended the whole session, with the exception of a few days in June, and entered into its business with his accustomed ardor. To remove impediments, obviate objections, and conciliate jarring opinions, he exerted all his fine faculties, and employed his remarkable eloquence. But he is chiefly to be remembered, in connection with the Constitution, as the author of its text. To his pen belongs the merit of that clear and finished style,--that _lucidus ordo_,--that admirable perspicuity, which have so much diminished the labors and hazards of interpretation for all future ages.[428] The character of Gouverneur Morris was balanced by many admirable qualities. His self-possession was so complete in all circumstances, that he is said to have declared, that he never knew the sensation of fear, inferiority, or embarrassment, in his intercourse with men. Undoubtedly, his self-confidence amounted sometimes to boldness and presumption; but we have it on no less an authority than Mr. Madison's, that he added to it a candid surrender of his opinions, when the lights of discussion satisfied him that they had been too hastily formed.[429] He was a man of genius, fond of society and pleasure, but capable of prodigious exertion and industry, and possessed of great powers of eloquence. He loved to indulge in speculations on the future condition of the country, and often foresaw results which gave him patience under the existing state of things. In 1784, writing to Mr. Jay, at a time when the clashing commercial regulations of the States seemed about to put an end to the Union, he said: "True it is, that the general government wants energy, and equally true it is, that this want will eventually be supplied. A national spirit is the natural result of national existence, and although some of the present generation may feel colonial oppositions of opinion, yet this generation will die away and give place to a race of Americans."[430] He was himself, at all times, an American, and never more so than during the discussions of the Convention. Appealing to his colleagues to extend their views beyond the narrow limits of place whence they derived their political origin, he declared, with his characteristic energy and point, that State attachments and State importance had been the bane of this country. "We cannot annihilate," said he, "but we may perhaps take out the teeth of the serpents."[431] In truth, the circumstances of his life had prevented him from feeling those strong local attachments which he considered the great impediments to the national prosperity. Born in one State, he had then resided for seven years in another, from whose inhabitants he had received at least equal marks of confidence with those that had been bestowed upon him by the people among whom he first entered public life. In his political opinions, he probably went farther in opposition to democratic tendencies than any other person in the Convention. He was in favor of an executive during good behavior, of a Senate for life, and of a freehold qualification for electors of representatives. In several other respects, the Constitution, as actually framed, was distasteful to him; but, like many of the other eminent men who doubted its theoretical or practical wisdom, he determined at once to abide by the voice of the majority. He saw that, as soon as the plan should go forth, all other considerations ought to be laid aside, and the great question ought to be, Shall there be a national government or not? He acknowledged that the alternatives were, the adoption of the system proposed, or a general anarchy;--and before this single and fearful issue all questions of individual opinion or preference sank into insignificance.[432] It is a proof both of his sincerity and of the estimate in which his abilities were held, that, when this great issue was presented to the people, he was invited by Hamilton to become one of the writers of the Federalist.[433] It is not known why he did not embrace the opportunity of connecting himself with that celebrated publication; but his correspondence shows that it was from no want of interest in the result. He took pains to give to Washington his decided testimony, from personal observation, that the idea of his refusing the Presidency would, if it prevailed, be fatal to the Constitution in many parts of the country.[434] Mr. Morris filled two important public stations, after the adoption of the Constitution. He was the first Minister to France appointed by General Washington, and filled that office from May, 1792, until August, 1794. In February, 1800, he was chosen by the legislature of New York to supply a vacancy in the Senate of the United States, which he filled until the 4th of March, 1803. He died at Morrisania on the 6th of November, 1818. "Let us forget party," said he, "and think of our country, which embraces all parties."[435] FOOTNOTES: [425] Sparks's Life of G. Morris, I. 103. The florid and declamatory style of this speech belongs to the period and to the youth of the speaker. The breadth of its views and its vigor of thought display the characteristics which belonged to him through life. He had a prophetic insight of the future resources of this country, and made many remarkable predictions of its greatness. His biographer has claimed for him the suggestion of the plan for uniting the waters of Lake Erie with those of the Hudson, and upon very strong evidence. [426] See the Report and the debates thereon, Secret Journals, II. 132 et seq. [427] In January, 1782, the Financier made a report, which was officially signed by him, but which Mr. Jefferson says was prepared by his Assistant, Gouverneur Morris. It embraced an elaborate statement of the denominations and comparative value of the foreign coins in circulation in the different States, and proposed the adoption of a money unit and a system of decimal notation for a new coinage. The unit suggested was such a portion of pure silver as would be a common measure of the penny of every State, without leaving a fraction. This common divisor Mr. Morris found to be one 1440th of a dollar, or one 1600th of the crown sterling. The value of a dollar was therefore to be expressed by 1,440 units, and that of a crown by 1,600, each unit containing a quarter of a grain of fine silver. Nothing, however, was done, until 1784, when Mr. Jefferson, being in Congress, took up the subject. He approved of Mr. Morris's general views, and his method of decimal notation, but objected to his unit as too minute for ordinary use. Mr. Jefferson proposed the dollar as the unit of account and payment, and that its divisions and subdivisions should be in the decimal ratio. This plan was adopted in August, 1785, and in 1786 the names and characters of the coins were determined. The ordinance establishing the coinage was passed August 8, 1786, and that establishing the mint, on the 16th of October, in the same year. (Jefferson's Autobiography, Works, I. 52-54. Life of Gouverneur Morris, I. 273. Journals of Congress, XI. 179, 254.) [428] The materials for the final preparation of the instrument, consisting of a reported draft in detail and the various resolutions which had been adopted, were placed in the hands of a committee of revision, of which William Samuel Johnson, of Connecticut, was the chairman; the other members being Messrs. Hamilton, Gouverneur Morris, Madison, and King. The chairman committed the work to Mr. Morris, and the Constitution, as adopted, was prepared by him. (See Mr. Madison's letter to Mr. Sparks, Life of Gouverneur Morris, I. 284. Madison's Debates, Elliot, V. 530.) [429] Life of Morris, I. 284-286. [430] Ibid. 266. [431] Madison, Elliot, V. 276, 277. [432] Madison, Elliot, V. 556. [433] Life, I. 287. [434] Ibid. 288-290. [435] Ibid. 517. CHAPTER XII. KING. Rufus King, celebrated as a jurist, a statesman, an orator, and a diplomatist, was sent to the Convention by the Commonwealth of Massachusetts. Born in her District of Maine, in 1755, and graduated at Harvard College in 1777, he came very early into public life, and was rarely out of it until his death, which occurred in 1827, in the seventy-third year of his age. His first public service was in the year 1778, as a volunteer in the expedition against the British in Rhode Island, in which he acted as aide-de-camp to General Sullivan. In 1780, he commenced the practice of the law in the town of Newburyport, and was soon after elected from that town to the legislature of the State. There he distinguished himself by a very powerful speech in favor of granting to the general government the five per cent. impost recommended by Congress as part of the revenue system of 1783. He was soon after elected a member of Congress from Massachusetts, in which body he took his seat on the 6th of December, 1784, and served until the close of the year 1787. He was thus a member both of the Convention for forming the Constitution and of the Congress which sanctioned and referred it to the people. He was also a member of the Convention of Massachusetts, in which the Constitution was ratified by that State. Mr. King did not favor the plan of a convention for the revision of the federal system, until after the meeting at Annapolis had been held; and, indeed, he did not concur in its expediency, until after the troubles in Massachusetts had made its necessity apparent. In 1785, as we have seen, he joined with the other members of the Massachusetts delegation in opposing it.[436] In the autumn of 1786, when the report of the Annapolis Convention was before Congress, he expressed the opinion, in person, to the legislature of Massachusetts, that the Articles of Confederation could not be altered, except by the consent of Congress and the confirmation of the several legislatures; that Congress ought, in the first instance, to make the examination of the federal system, since, if it was done by a convention, no legislature would have a right to confirm it; and further, that, if Congress should reject the report of a convention, the most fatal consequences might follow. For these reasons, he at that time held Congress to be the proper body to propose alterations.[437] At the moment when he was making this address to the legislature, the disturbances in Massachusetts were fast gathering into that formidable insurrection, which two months afterwards burst forth in the interior of the State.[438] Mr. King spoke of these commotions in grave and pointed terms. He told the legislature that Congress viewed them with deep anxiety; that every member of the national councils felt his life, liberty, and property to be involved in the issue of their decisions; that the United States would not be inactive on such an occasion, for, if the lawful authority of the State were to be prostrated, every other government would eventually be swept away. He entreated them to remember, that, if the government were in a minority in the State, they had a majority of every State in the Union to join them.[439] He returned to Congress immediately. But there he found that the reliance which he had placed upon the ability of the Confederation to interfere and suppress such a rebellion was not well founded. The power was even doubted, or denied, by some of the best statesmen in that body; and although the insurrection was happily put down by the government of the State itself, the fearful exposure of a want of external power adequate to such emergencies produced in Mr. King, as in many others, a great change of views, both as to the necessity for a radical change of the national government and as to the mode of effecting it. His vote, in February, was given to the proposition introduced by the delegation of New York for a national convention; and when that failed, he united with his colleague, Mr. Dane, in bringing forward the resolution by which the Convention was finally sanctioned in Congress.[440] The Convention having been sanctioned by Congress, no man was more ready than Mr. King to maintain its power to deliberate on and propose any alterations that Congress could have suggested in the Federal Articles. He held that the proposing of an entire change in the mode of suffrage in the national legislature, from a representation of the States alone to a representation of the people, was within the scope of their powers, and consistent with the Union; for if that Union, on the one hand, involved the idea of a confederation, on the other hand it contained also the idea of consolidation, from which a national character resulted to the individuals of whom the States were composed. He doubted the practicability of annihilating the State governments, but thought that much of their power ought to be taken from them.[441] He declared, that, when every _man_ in America might be secured in his rights, by a government founded on equality of representation, he could not sacrifice such a substantial good to the phantom of _State_ sovereignty. If this illusion were to continue to prevail, he should be prepared for any event, rather than sit down under a government founded on a vicious principle of representation, and one that must be as short-lived as it would be unjust.[442] There is one feature of the Constitution with which the name of Mr. King should always be connected, and of which he may be said, indeed, to have been the author. Towards the close of the session, he introduced the prohibition on the States to pass laws affecting the obligation of contracts. It appears that the Ordinance for the government of the Northwestern Territory, which had been passed by Congress about a month previous, contained a similar prohibition on the States to be formed out of that territory. That any of the jurists who were concerned in the framing of either instrument foresaw at the moment all the great future importance and extensive operation of this wise and effective provision, we are not authorized to affirm. But a clause which has enabled the supreme national judicature to exercise a vast, direct, and uniform influence on the security of property throughout all the States of this Confederacy, should be permanently connected with the names of its authors.[443] Mr. King was but little past the age of thirty when the Constitution was adopted. After that event, he went to reside in the city of New York, and entered upon the career of distinction which filled up the residue of his life, as a Senator in Congress, and as Minister to England. No formal biography of him has yet appeared; but when that duty shall have been discharged by those to whom it appropriately belongs, there will be added to our literature an account of a man of the most eminent abilities and the purest patriotism, whose influence and agency in the great transactions which attended the origin and first operations of the government were of the utmost importance. FOOTNOTES: [436] Ante, p. 339, note. [437] Mr. King being in Boston in October, 1786, was desired by the legislature to attend and give an account of the state of national affairs. For an abstract of his address, see Boston Magazine for the year 1786, p. 406. [438] Ante, p. 266 et seq. [439] Ibid. [440] Journals, XII. 15-17. [441] Madison, Elliot, V. 212, 213. [442] Madison, Elliot, V. 266. [443] The Ordinance for the government of the Northwestern Territory was drawn by Nathan Dane of Massachusetts. It was reported in Congress July 11th, 1787, and was passed July 13th. The committee by whom it was reported were Messrs. Carrington and R. H. Lee of Virginia, Kearney of Delaware, Smith of New York, and Mr. Dane. The clause relating to contracts was in these words: "And in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made or have force in the said territory, that shall in any manner whatever interfere with or affect private contracts or engagements, _bona fide_ and without fraud previously formed." On the 28th of August, Mr. King moved in the Convention to insert the same clause in the Constitution; but it was opposed, and was not finally adopted until September 14, when it was incorporated in the phraseology in which it now stands in the Constitution. (Madison, Elliot, V. 485; Journal of the Convention, Elliot, I. 311.) CHAPTER XIII. CHARLES COTESWORTH PINCKNEY. Charles Cotesworth Pinckney of South Carolina, the eldest son of a chief justice of that Colony, distinguished both as a soldier and a civilian, was educated in England, and read law at the Temple. He returned to his native province in 1769, and commenced the practice of his profession; which, like many of the young American barristers of that day, he was obliged to abandon for the duties of the camp, when the troubles of the Revolution began. He became colonel of the first regiment of the Carolina infantry, and served under General Moultrie in the defence of the fort on Sullivan's Island. This gallant resistance having freed the South, for a time, from invasion, Pinckney repaired to the Northern army, and was made aide-de-camp to General Washington; in which capacity he served at the battles of the Brandywine and Germantown. He afterwards acquired great distinction in the defence of South Carolina against the British under Sir Henry Clinton. On the return of peace, he devoted himself to the law, in which he became eminent. He belonged to that school of public men, who had been trained in the service of the country under the eye of Washington, and who had experienced with him the fatal defects of the successive governments which followed the Declaration of Independence. Of his abilities, patriotism, and purity of character we have the strongest evidence, in the repeated efforts made by Washington, after the establishment of the Constitution, to induce him to accept some of the most important posts in the government. He was, indeed, one of that order of men to whom Washington gave his entire confidence from the first. A ripe scholar, a profound lawyer, with Revolutionary laurels of the most honorable kind,--wise, energetic, and disinterested,--it is not singular that the people of South Carolina should have selected him as one of their delegates to an assembly, which was to frame a new constitution of government for the country to whose service his earlier years had been devoted. General Pinckney entered the Convention with a desire to adhere, if possible, to the characteristic principles of the Confederation; but also with the wish to make that government more effective, by giving to it distinct departments and enlarged powers.[444] But in the progress of the discussions, he surrendered these views, and became a party to those arrangements by which mutual concessions between the opposing sections of the Union made a different form of government a practicable result. He was a strenuous supporter of the interests of the slaveholding States, in all that related to their right to hold and increase their slave population. He contended earnestly against a grant of authority to the general government to prohibit the importation of slaves; for he supposed that his constituents would not surrender that right. But he finally entered into the arrangement, by which the postponement of the power to prohibit the slave-trade to the year 1808 was made a ground of consent on the part of the Southern States to give the regulation of commerce to the Union. He considered it, he said, the true interest of the Southern States to have no regulation of commerce; but he yielded it, in consideration of the losses brought upon the commerce of the Eastern States by the Revolution, and of their liberality towards the interests of the Southern portion of the Confederacy. The framers of the Constitution of the United States have often been bitterly reproached for permitting the slave-trade to be carried on for twenty years after the period of its formation; and the Eastern States have been especially accused of a sordid spirit of trade in purchasing for themselves the advantage of a national regulation of commerce by this concession. It is the duty of History, however, to record the facts in their true relations. At the time when the Convention for framing our Constitution was assembled, no nation had prohibited the African slave-trade. The English Quakers, following the example of their American brethren, had begun to move upon the subject, but it was not brought formally before Parliament until 1788; the trade was not abolished by act of Parliament until 1807, nor made a felony until 1810. Napoleon's decree of 1815 was the first French enactment against the traffic. But in 1787, many of the members of the American Convention insisted that the power to put an end to this trade ought to be vested in the new government which they were endeavoring to form. But they found certain of the Southern States unwilling to deprive themselves of the supply of this species of labor for their new and yet unoccupied lands. Those States would not consent to a power of immediate prohibition, and they were extremely reluctant to yield even a power that might be used at a future period. They preferred to keep the whole subject in their own hands, and to determine for themselves when the importation should cease. The members of the Convention, therefore, who desired the abolition of this trade, found that, if they attempted to force these States to a concession that it ought to be immediately prohibited, either the regulation of commerce--the chief object for which the Convention had been called--could not be obtained for the new Constitution, or, if it were obtained, several of the Southern States would be excluded from the Union. The question, then, that presented itself to them was a great question of humanity and public policy, to be judged and decided upon all the circumstances that surrounded it. Were they to form a Union that should include only those States willing to consent to an immediate prohibition of the slave-trade, and thus leave the rest of the States out of that Union, and independent of its power to restrain the importation of slaves? Were they to abandon the hope of forming a new Constitution for the thirteen States that had gone together through all the conflicts and trials and sacrifices of the Revolution, or were they to form such a government, and secure to it the power at some early period of putting an end to this traffic? If they were to do the latter,--if the cause of humanity demanded action upon this and all the other great objects dependent upon their decisions,--how could the commercial interests of the country be better used, than in the acquisition of a power to free its commerce from the stain and reproach of this inhuman traffic? By the arrangement which was to form one of the principal "compromises" of the Constitution, American commerce might achieve for itself the opportunity to do what no nation had yet done. By this arrangement, it might be implied in the fundamental law of the new government about to be created for the American people, that the abolition of the slave-trade was an object that ought to engage the attention of Christian states. Without it, the abolition of this trade could not be secured within any time or by any means capable of being foreseen or even conjectured. That the framers of the Constitution judged wisely: that they acted upon motives which will enable History to shield them from all reasonable reproach; and that they brought about a result alike honorable to themselves and to their country,--will not be denied by those who remember and duly appreciate the fact, that the Congress of the United States, under the Constitution, was the first legislative body in the world to prohibit the carrying of slaves to the territories of foreign countries.[445] It is no inconsiderable honor to the statesmen situated as General Pinckney and other representatives of the Southern States were, that they should have frankly yielded the prejudices, and what they supposed to be the interests, of their constituents, to the great object of forming a more perfect union. Certainly they could urge, with equal if not greater force and truth, the same arguments for the continuance of the slave-trade, which for nearly twenty years afterwards were continually heard in the British Parliament, and which postponed its abolition until long after the people of England had become satisfied both of its inhumanity and its impolicy. Whether General Pinckney was right or wrong in the opinion that his constituents needed no national regulation of commerce, there can be no doubt of his sincerity when he expressed it. Nor can there be any doubt that he was fully convinced of the fact, when he asserted that they would not adopt a constitution that should vest in the national government an immediate power to prohibit the importation of slaves. He made, therefore, a real concession, when he consented to the prohibition at the end of twenty years, and he made it in order that the union of the thirteen States might be preserved under a Constitution adequate to its wants. For this, as well as for other services, he is entitled to a place of honor among the great men who framed the charter of our national liberties; and when we recollect that by his action he armed the national government with a power to free the American name from the disgrace of tolerating the slave-trade, before it was effectually put down by any other people in Christendom, we need not hesitate to rank him high among those who made great sacrifices for the general welfare of the country and the general good of mankind.[446] FOOTNOTES: [444] Madison, Elliot, V. 133. [445] Denmark, it is said, abolished the foreign slave-trade and the importation into her colonies in 1792, but the prohibitions were not to take effect until 1804. 1 Kent's Commentaries, 198, note (citing Mr. Wheaton). [446] In the first draft of the Constitution reported by the Committee of Detail, it was provided that the importation of such persons as the States might think proper to admit should not be prohibited. When the committee to arrange, if possible, certain compromises between the Northern and Southern States was raised, this provision, with other matters, was referred, and it was finally agreed that the importation should not be prohibited before the year 1808. After the adoption of the Constitution, Congress, by the acts of March 22d, 1794, and May 10, 1800, prohibited the citizens and residents of the United States from carrying slaves to any foreign territory for the purpose of traffic. By the act of March 2, 1807, the importation of slaves into the United States after January 1, 1808, was prohibited under severe penalties. In 1818 and 1819 these penalties were further increased, and in 1820, the offence was made piracy. Although the discussion of the subject commenced in England at about the same time (1788), it was nearly twenty years before a bill could be carried through Parliament for the abolition of the traffic. Through the whole of that period, and down to the very last, counsel were repeatedly heard at the bar, in behalf of interested parties, to oppose the reform. The trade was finally abolished by act of Parliament in March, 1807; it was made a felony in 1810, and declared to be piracy in 1824. While, therefore, the representatives of a few of the Southern States of this Union refused to consent to an immediate prohibition, they did consent to engraft upon the Constitution what was in effect a declaration that the trade should be prohibited at a fixed period of time; and the trade was thus abolished by the United States, under a government of limited powers, with respect to their own territories, as soon as it was abolished by the "omnipotent" Parliament of Great Britain. Moreover, by consenting to give to the Union the power to regulate commerce, the Southern States enabled Congress to abolish the slave-trade with foreign countries thirteen years before the same trade was made unlawful to British vessels. CHAPTER XIV. WILSON. James Wilson, a signer of the Declaration of Independence, and one of the early Judges of the Supreme Court of the United States, was one of the first jurists in America during the latter part of the last century. He was born in Scotland about the year 1742. After studying at Glasgow, St. Andrews, and Edinburgh, he emigrated to Pennsylvania in 1766. He became, soon after his arrival, a tutor in the Philadelphia College, in which place he acquired great distinction as a classical scholar. He subsequently studied the law, and was admitted to the bar; and, after practising at different places, took up his residence at Philadelphia, where he continued to reside during the rest of his life.[447] For six years out of the twelve that elapsed from 1775 to the summoning of the Convention of 1787, he was a member of Congress. Concerned in all the great measures of independence, the establishment of the Confederation, the peace, and the revenue system of 1783, he had acquired a fund of political experience, which became of great value to the country and to himself. Although a foreigner by birth, he was thoroughly American in all his sentiments and feelings, and, at the time he entered the Convention, there were few public men in the country who perceived more clearly the causes of the inherent weakness of the existing government. During the war, he had always considered the States, with respect to that war, as forming one community;[448] and he did not admit the idea, that, when the Colonies became independent of Great Britain, they became independent of each other.[449] From the Declaration of Independence he deduced the doctrine that the States by which that measure was adopted were independent in their confederated character, and not as individual communities. This rather subtile distinction may seem now to have been of no great practical moment, since the Confederation had actually united the States as such, rather than the inhabitants of the States. But it was one of the positions assumed by those who desired to combat the idea that the States, when assembled in Convention, were restrained, by their position as equal and independent sovereignties, from adopting a plan of government founded on a representation of the people. To this objection Mr. Wilson repeatedly addressed himself, and his efforts had great influence in causing the adoption of the principle by which the people of the States became directly represented in the government in the ratio of their numbers. He showed that this principle had been improperly violated in the Confederation, in consequence of the urgent necessity of forming a union, and the impossibility at that time of forming any other than a union of the States. As a new partition of the States was now impracticable, it became necessary for them to surrender a portion of their sovereignties, and to permit their inhabitants to enter into direct relations with a new federal union. He pointed out the twofold relation in which the people must henceforth stand;--in the one, they would be citizens of the general government; in the other, they would be citizens of their particular State. As both governments were derived from the people, and both were designed for them, both ought to be regulated on the same principles. In no other way could the larger States consent to a new union; and if the smaller States could not admit the justice of a proportionate representation, it was in vain to expect to form a constitution that would embrace and satisfy the whole country. This great idea of a representative government was in fact the aim of all Mr. Wilson's exertions; and when the Constitution was formed, he enforced this idea in the Convention of Pennsylvania with singular power. His speech in that body is one of the most comprehensive and luminous commentaries on the Constitution that have come down to us from that period. It drew from Washington a high encomium, and it gained the vote of Pennsylvania for the new government, against the ingenious and captivating objections of its opponents. The life of this wise, able, and excellent man was comparatively short. In 1789, he was appointed by Washington a Judge of the Supreme Court of the United States. While on a circuit in North Carolina, in the year 1798, he died at Edenton, at about the age of fifty-six. The character of his mind and the sources of his influence will be best appreciated, by examining some of the more striking passages of his great speech on the Constitution.[450] FOOTNOTES: [447] Encyclopædia Americana, Art. "Wilson, James." [448] Madison, Elliot, V. 78. [449] Ibid. 213. [450] The following extracts from the speech referred to will well repay a careful perusal. "_Tacitus_,--the profound politician Tacitus,--who lived towards the latter end of those ages which are now denominated _ancient_, who undoubtedly had studied the constitutions of all the states and kingdoms known before and in his time, and who certainly was qualified, in an uncommon degree, for understanding the full force and operation of each of them, considers, after all he had known and read, a mixed government, composed of the three simple forms, as a thing rather to be wished than expected. And he thinks that, if such a government could even be instituted, its duration could not be long. One thing is very certain,--that the doctrine of representation in government was altogether unknown to the ancients. Now, the knowledge and practice of this doctrine is, in my opinion, essential to every system that can possess the qualities of freedom, wisdom, and energy. "It is worthy of remark, and the remark may, perhaps, excite some surprise, that representation of the people is not, even at this day, the sole principle of any government in Europe. Great Britain boasts--and she may well boast--of the improvement she has made in politics by the admission of representation; for the improvement is important as far as it goes; but it by no means goes far enough. Is the executive power of Great Britain founded on representation? This is not pretended. Before the Revolution, many of the kings claimed to reign by divine right, and others by hereditary right; and even at the Revolution, nothing further was effected or attempted than the recognition of certain parts of an original contract (_Blackstone_, 233), supposed, at some former remote period, to have been made between the king and the people. A contract seems to exclude, rather than to imply, delegated power. The judges of Great Britain are appointed by the crown. The judicial authority, therefore, does not depend upon representation, even in its most remote degree. Does representation prevail in the legislative department of the British government? Even here it does not predominate, though it may serve as a check. The legislature consists of three branches,--the king, the lords, and the commons. Of these, only the latter are supposed by the constitution to represent the authority of the people. This short analysis clearly shows to what a narrow corner of the British constitution the principle of representation is confined. I believe it does not extend farther, if so far, in any other government in Europe. For the American States were reserved the glory and the happiness of diffusing this vital principle throughout the constituent parts of government. Representation is the chain of communication between the people and those to whom they have committed the exercise of the powers of government. This chain may consist of one or more links, but in all cases it should be sufficiently strong and discernible. "To be left without guide or precedent was not the only difficulty in which the Convention were involved, by proposing to their constituents a plan of a confederate republic. They found themselves embarrassed with another, of peculiar delicacy and importance. I mean that of drawing a proper line between the national government and the governments of the several States. It was easy to discover a proper and satisfactory principle on the subject. Whatever object of government is confined, in its operation and effects, within the bounds of a particular State, should be considered as belonging to the government of that State; whatever object of government extends, in its operation or effects, beyond the bounds of a particular State, should be considered as belonging to the government of the United States. But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty, because, in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care. It is only in mathematical science that a line can be described with mathematical precision. But I flatter myself that, upon the strictest investigation, the enumeration will be found to be safe and unexceptionable, and accurate, too, in as great a degree as accuracy can be expected in a subject of this nature. Particulars under this head will be more properly explained, when we descend to the minute view of the enumeration which is made in the proposed Constitution. "After all, it will be necessary that, on a subject so peculiarly delicate as this, much prudence, much candor, much moderation, and much liberality should be exercised and displayed both by the federal government and by the governments of the several States. It is to be hoped that those virtues in government will be exercised and displayed, when we consider that the powers of the federal government and those of the State governments are drawn from sources equally pure. If a difference can be discovered between them, it is in favor of the federal government, because that government is founded on a representation of the _whole_ Union; whereas the government of any particular State is founded only on the representation of a part, inconsiderable when compared with the whole. Is it not more reasonable to suppose that the counsels of the whole will embrace the interest of every part, than that the counsels of any part will embrace the interests of the whole? "I intend not, Sir, by this description of the difficulties with which the Convention were surrounded, to magnify their skill or their merit in surmounting them, or to insinuate that any predicament in which the Convention stood should prevent the closest and most cautious scrutiny into the performance which they have exhibited to their constituents and to the world. My intention is of far other and higher aim,--to evince, by the conflicts and difficulties which must arise from the many and powerful causes which I have enumerated, that it is hopeless and impracticable to form a constitution which, in every part, will be acceptable to every citizen, or even to every government, in the United States; and that all which can be expected is, to form such a constitution as, upon the whole, is the best that can possibly be obtained. Man and perfection!--a state and perfection!--an assemblage of states and perfection! Can we reasonably expect, however ardently we may wish, to behold the glorious union? "I can well recollect, though I believe I cannot convey to others, the impression which, on many occasions, was made by the difficulties which surrounded and pressed the Convention. The great undertaking sometimes seemed to be at a stand; at other times, its motion seemed to be retrograde. At the conclusion, however, of our work, many of the members expressed their astonishment at the success with which it terminated. "Having enumerated some of the difficulties which the Convention were obliged to encounter in the course of their proceedings, I shall next point out the end which they proposed to accomplish. Our wants, our talents, our affections, our passions, all tell us that we were made for a state of society. But a state of society could not be supported long or happily without some civil restraint. It is true, that, in a state of nature, any one individual may act uncontrolled by others; but it is equally true, that, in such a state, every other individual may act uncontrolled by him. Amidst this universal independence, the dissensions and animosities between interfering members of the society would be numerous and ungovernable. The consequence would be, that each member, in such a natural state, would enjoy less liberty, and suffer more interruption, than he would in a regulated society. Hence the universal introduction of governments of some kind or other into the social state. The liberty of every member is increased by this introduction; for each gains more by the limitation of the freedom of every other member, than he loses by the limitation of his own. The result is, that civil government is necessary to the perfection and happiness of man. In forming this government, and carrying it into execution, it is _essential_ that the _interest_ and _authority_ of the whole community should be binding in every part of it. "The foregoing principles and conclusions are generally admitted to be just and sound with regard to the nature and formation of single governments, and the duty of submission to them. In some cases, they will apply, with much propriety and force, to states already formed. The advantages and necessity of civil government among individuals in society are not greater or stronger than, in some situations and circumstances, are the advantages and necessity of a federal government among states. A natural and very important question now presents itself,--Is such the situation, are such the circumstances, of the United States? A proper answer to this question will unfold some very interesting truths. "The United States may adopt any one of four different systems. They may become consolidated into one government, in which the separate existence of the States shall be entirely absolved. They may reject any plan of union or association, and act as separate and unconnected States. They may form two or more confederacies. They may unite in one federal republic. Which of these systems ought to have been formed by the Convention? To support, with vigor, a single government over the whole extent of the United States, would demand a system of the most unqualified and the most unremitted despotism. Such a number of separate States, contiguous in situation, unconnected and disunited in government, would be, at one time, the prey of foreign force, foreign influence, and foreign intrigue; at another, the victims of mutual rage, rancor, and revenge. Neither of these systems found advocates in the late Convention. I presume they will not find advocates in this. Would it be proper to divide the United States into two or more confederacies? It will not be unadvisable to take a more minute survey of this subject. Some aspects under which it may be viewed are far from being, at first sight, uninviting. Two or more confederacies would be each more compact and more manageable than a single one extending over the same territory. By dividing the United States into two or more confederacies, the great collision of interests apparently or really different and contrary, in the _whole extent_ of their dominion, would be broken, and, in a great measure, disappear, in the several parts. But these advantages, which are discovered from certain points of view, are greatly overbalanced by inconveniences that will appear on a more accurate examination. Animosities, and perhaps wars, would arise from assigning the extent, the limits, and the rights of the different confederacies. The expenses of governing would be multiplied by the number of federal governments. The danger resulting from foreign influence and mutual dissensions would not, perhaps, be less great and alarming in the instance of different confederacies, than in the instance of different, though more numerous, unassociated States. "These observations, and many others that might be made on the subject, will be sufficient to evince that a division of the United States into a number of separate confederacies would probably be an unsatisfactory and an unsuccessful experiment. The remaining system which the American States may adopt, is a union of them under one confederate republic. It will not be necessary to employ much time, or many arguments, to show that this is the most eligible system that can be proposed. By adopting this system, the vigor and decision of a wide-spreading monarchy may be joined to the freedom and beneficence of a contracted republic. The extent of territory, the diversity of climate and soil, the number and greatness and connection of lakes and rivers with which the United States are intersected and almost surrounded,--all indicate an enlarged government to be fit and advantageous for them. The principles and dispositions of their citizens indicate that, in this government, liberty shall reign triumphant. Such, indeed, have been the general opinions and wishes entertained since the era of independence. If those opinions and wishes are as well founded as they have been general, the late Convention were justified in proposing to their constituents one confederate republic, as the best system of a national government for the United States. "In forming this system, it was proper to give minute attention to the interest of all the parts; but there was a duty of still higher import,--to feel and to show a predominating regard to the superior interests of the whole. If this great principle had not prevailed, the plan before us would never have made its appearance. The same principle that was so necessary in forming it is equally necessary in our deliberations, whether we should reject or ratify it. "I make these observations with a design to prove and illustrate this great and important truth,--that, in our decisions on the work of the late Convention, we should not limit our views and regards to the State of Pennsylvania. The aim of the Convention was to form a system of good and efficient government, on the more extensive scale of the United States. In this, and in every other instance, the work should be judged with the same spirit with which it was performed. A principle of duty, as well as candor, demands this. "We have remarked, that civil government is necessary to the perfection of society; we now remark, that civil liberty is necessary to the perfection of civil government. Civil liberty is natural liberty itself, divested of only that part which, placed in the government, produces more good and happiness to the community than if it had remained in the individual. Hence it follows that civil liberty, while it resigns a part of natural liberty, retains the free and generous exercise of all the human faculties, so far as it is compatible with the public welfare. "In considering and developing the nature and end of the system before us, it is necessary to mention another kind of liberty, which has not yet, as far as I know, received a name. I shall distinguish it by the appellation of _federal liberty_. When a single government is instituted, the individuals of which it is composed surrender to it a part of their natural independence, which they before enjoyed as men. When a confederate republic is instituted, the communities of which it is composed surrender to it a part of their political independence, which they before enjoyed as States. The principles which directed, in the former case, what part of the natural liberty of the man ought to be given up, and what part ought to be retained, will give similar directions in the latter case. The States should resign to the national government that part, and that part only, of their political liberty, which, placed in that government, will produce more good to the whole than if it had remained in the several States. While they resign this part of their political liberty, they retain the free and generous exercise of all their other faculties, as States, so far as it is compatible with the welfare of the general and superintending confederacy. "Since _States_, as well as citizens, are represented in the Constitution before us, and form the objects on which that Constitution is proposed to operate, it was necessary to notice and define _federal_ as well as _civil_ liberty. "These general reflections have been made in order to introduce, with more propriety and advantage, a practical illustration of the end proposed to be accomplished by the late Convention. "It has been too well known, it has been too severely felt, that the present Confederation is inadequate to the government, and to the exigencies, of the United States. The great struggle for Liberty in this country, should it be unsuccessful, will probably be the last one which she will have for her existence and prosperity in any part of the globe. And it must be confessed that this struggle has, in some of the stages of its progress, been attended with symptoms that foreboded no fortunate issue. To the iron hand of Tyranny, which was lifted up against her, she manifested, indeed, an intrepid superiority. She broke in pieces the fetters which were forged for her, and showed that she was unassailable by force. But she was environed with dangers of another kind, and springing from a very different source. While she kept her eye steadily fixed on the efforts of oppression, licentiousness was secretly undermining the rock on which she stood. "Need I call to your remembrance the _contrasted_ scenes of which we have been witnesses? On the glorious conclusion of our conflict with Britain, what high expectations were formed concerning us by others! What high expectations did we form concerning ourselves! Have those expectations been realized? No. What has been the cause? Did our citizens lose their perseverance and magnanimity? No. Did they become insensible of resentment and indignation at any high-handed attempt that might have been made to injure or enslave them? No. What, then, has been the cause? The truth is, we dreaded danger only on one side: this we manfully repelled. But, on another side, danger, not less formidable, but more insidious, stole in upon us; and our unsuspicious tempers were not sufficiently attentive either to its approach or to its operations. Those whom foreign strength could not overpower have wellnigh become the victims of internal anarchy. "If we become a little more particular, we shall find that the foregoing representation is by no means exaggerated. When we had baffled all the menaces of foreign power, we neglected to establish among ourselves a government that would insure domestic vigor and stability. What was the consequence? The commencement of peace was the commencement of every disgrace and distress that could befall a people in a peaceful state. Devoid of _national power_, we could not prohibit the extravagance of our importations, nor could we derive a revenue from their excess. Devoid of national _importance_, we could not procure for our exports a tolerable sale at foreign markets. Devoid of national _credit_, we saw our public securities melt in the hands of the holders, like snow before the sun. Devoid of national _dignity_, we could not, in some instances, perform our treaties on our part; and, in other instances, we could neither obtain nor compel the performance of them on the part of others. Devoid of national _energy_, we could not carry into execution our own resolutions, decisions, or laws. "Shall I become more particular still? The tedious detail would disgust me. The years of languor are now over. We have felt the dishonor with which we have been covered; we have seen the destruction with which we have been threatened. We have penetrated to the causes of both, and when we have once discovered them, we have begun to search for the means of removing them. For the confirmation of these remarks, I need not appeal to an enumeration of facts. The proceedings of Congress, and of the several States, are replete with them. They all point out the weakness and insufficiency as the cause, and an _efficient_ general government as the only cure, of our political distempers. "Under these impressions, and with these views, was the late Convention appointed; and under these impressions, and with these views, the late Convention met. "We now see the great end which they proposed to accomplish. It was to frame, for the consideration of their constituents, one federal and national constitution,--a constitution that would produce the advantages of good, and prevent the inconveniences of bad government;--a constitution whose beneficence and energy would pervade the whole Union, and bind and embrace the interests of every part;--a constitution that would insure peace, freedom, and happiness to the States and people of America. "We are now naturally led to examine the means by which they proposed to accomplish this end. This opens more particularly to our view the discussion before us. But, previously to our entering upon it, it will not be improper to state some general and leading principles of government, which will receive particular application in the course of our investigations. "There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable. Where does this power reside? To this question writers on different governments will give different answers. Sir William Blackstone will tell you, that in Britain the power is lodged in the British Parliament; that the Parliament may alter the form of the government; and that its power is absolute, without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. There are, at least, no traces of practice conformable to such a principle. The British Constitution is just what the British Parliament pleases. When the Parliament transferred legislative authority to Henry VIII., the act transferring could not, in the strict acceptation of the term, be called unconstitutional. "To control the power and conduct of the legislature by an overruling constitution, was an improvement in the science and practice of government reserved to the American States. "Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions. This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that, in our governments, the supreme, absolute, and uncontrollable power _remains_ in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed, the superiority, in this last instance, is much greater; for the people possess over our constitutions control in _act_, as well as right. "The consequence is, that the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them. "These important truths, Sir, are far from being merely speculative. We, at this moment, speak and deliberate under their immediate and benign influence. To the operation of these truths we are to ascribe the scene, hitherto unparalleled, which America now exhibits to the world,--a gentle, a peaceful, a voluntary, and a deliberate transition from one constitution of government to another. In other parts of the world, the idea of revolutions in government is, by a mournful and an indissoluble association, connected with the idea of wars, and all the calamities attendant on wars. But happy experience teaches us to view such revolutions in a very different light,--to consider them only as progressive steps in improving the knowledge of government, and increasing the happiness of society and mankind. "Oft have I marked, with silent pleasure and admiration, the force and prevalence, through the United States, of the principle that the supreme power resides in the people, and that they never part with it. It may be called the _panacea_ in politics. There can be no disorder in the community but may here receive a radical cure. If the error be in the legislature, it may be corrected by the constitution; if in the constitution, it may be corrected by the people. There is a remedy, therefore, for every distemper in government, if the people are not wanting to themselves; if they are wanting to themselves, there is no remedy. From their power, as we have seen, there is no appeal; of their error, there is no superior principle of correction. "There are three simple species of government;--monarchy, where the supreme power is in a single person; aristocracy, where the supreme power is in a select assembly, the members of which either fill up, by election, the vacancies in their own body, or succeed to their places in it by inheritance, property, or in respect of some _personal_ right or qualification; a republic or democracy, where the people at large _retain_ the supreme power, and act either collectively or by representation. "Each of these species of government has its advantages and disadvantages. "The advantages of a _monarchy_ are strength, despatch, secrecy, unity of counsel. Its disadvantages are tyranny, expense, ignorance of the situation and wants of the people, insecurity, unnecessary wars, evils attending elections or successions. "The advantages of _aristocracy_ are wisdom, arising from experience and education. Its disadvantages are dissensions among themselves, oppression to the lower orders. "The advantages of _democracy_ are liberty, equality, cautious and salutary laws, public spirit, frugality, peace, opportunities of exciting and producing abilities of the best citizens. Its disadvantages are dissensions, the delay and disclosure of public counsels, the imbecility of public measures, retarded by the necessity of a numerous consent. "A government may be composed of two or more of the simple forms above mentioned. Such is the British government. It would be an improper government for the United States, because it is inadequate to such an extent of territory, and because it is suited to an establishment of different orders of men. A more minute comparison between some parts of the British Constitution, and some parts of the plan before us, may perhaps find a proper place in a subsequent period of our business. "What is the nature and kind of that government which has been proposed for the United States by the late Convention? In its principle, it is purely democratical. But that principle is applied in different forms, in order to obtain the advantages, and exclude the inconveniences, of the simple modes of government. "If we take an extended and accurate view of it, we shall find the streams of power running in different directions, in different dimensions, and at different heights,--watering, adorning, and fertilizing the fields and meadows through which their courses are led; but if we trace them, we shall discover that they all originally flow from one abundant fountain. "In this Constitution, _all authority is derived from the people_. "Fit occasions will hereafter offer for particular remarks on the different parts of the plan." After an elaborate examination of the Constitution, he thus concludes:-- "A free government has often been compared to a pyramid. This allusion is made with peculiar propriety in the system before you; it is laid on the broad basis of the people; its powers gradually rise, while they are confined in proportion as they ascend, until they end in that most permanent of all forms. When you examine all its parts, they will invariably be found to preserve that essential mark of free governments,--a chain of connection with the people. "Such, Sir, is the nature of this system of government; and the important question at length presents itself to our view,--Shall it be ratified, or shall it be rejected, by this Convention? In order to enable us still further to form a judgment on this truly momentous and interesting point, on which all we have, or can have, dear to us on earth is materially depending, let us for a moment consider the consequences that will result from one or the other measure. Suppose we reject this system of government; what will be the consequence? Let the farmer say,--he whose produce remains unasked for; nor can he find a single market for its consumption, though his fields are blessed with luxuriant abundance. Let the manufacturer, and let the mechanic, say; they can feel, and tell their feelings. Go along the wharves of Philadelphia, and observe the melancholy silence that reigns. I appeal not to those who enjoy places and abundance under the present government; they may well dilate upon the easy and happy situation of our country. Let the merchants tell you what is our commerce; let them say what has been their situation since the return of peace,--an era which they might have expected would furnish additional sources to our trade, and a continuance, and even an increase, to their fortunes. Have these ideas been realized? or do they not lose some of their capital in every adventure, and continue the unprofitable trade from year to year, subsisting under the hopes of happier times under an efficient general government? The ungainful trade carried on by our merchants has a baneful influence on the interests of the manufacturer, the mechanic, and the farmer; and these, I believe, are the chief interests of the people of the United States. "I will go further. Is there now a government among us that can do a single act that a national government ought to do? Is there any power of the United States that can _command_ a single shilling? This is a plain and a home question. "Congress may recommend; they can do no more: they may require; but they must not proceed one step further. If things are bad now,--and that they are not worse is only owing to hopes of improvement or change in the system,--will they become better when those hopes are disappointed? We have been told, by honorable gentlemen on this floor, that it is improper to urge this kind of argument in favor of a new system of government, or against the old one: unfortunately, Sir, these things are too severely felt to be omitted; the people feel them; they pervade all classes of citizens, and every situation from New Hampshire to Georgia: the argument of necessity is the patriot's defence, as well as the tyrant's plea. "Is it likely, Sir, that, if this system of government is rejected, a better will be framed and adopted? I will not expatiate on this subject; but I believe many reasons will suggest themselves to prove that such expectation would be illusory. If a better could be obtained at a future time, is there any thing wrong in this? I go further. Is there any thing wrong that cannot be amended more easily by the mode pointed out in the system itself, than could be done by calling convention after convention, before the organization of the government? Let us now turn to the consequences that will result if we assent to and ratify the instrument before you. I shall trace them as concisely as I can, because I have trespassed already too long on the patience and indulgence of the house. "I stated, on a former occasion, one important advantage; by adopting this system, we become a _nation_; at present, we are not one. Can we perform a single national act? Can we do any thing to procure us dignity, or to preserve peace and tranquillity? Can we relieve the distress of our citizens? Can we provide for their welfare or happiness? The powers of our government are mere sound. If we offer to treat with a nation, we receive this humiliating answer: 'You cannot, in propriety of language, make a treaty, because you have no power to execute it.' Can we borrow money? There are too many examples of unfortunate creditors existing, both on this and the other side of the Atlantic, to expect success from this expedient. But could we borrow money, we cannot command a fund, to enable us to pay either the principal or interest; for, in instances where our friends have advanced the principal, they have been obliged to advance the interest also, in order to prevent the principal from being annihilated in their hands by depreciation. Can we raise an army? The prospect of a war is highly probable. The accounts we receive, by every vessel from Europe, mention that the highest exertions are making in the ports and arsenals of the greatest maritime powers. But whatever the consequence may be, are we to lie supine? We know we are unable, under the Articles of Confederation, to exert ourselves; and shall we continue so, until a stroke be made on our commerce, or we see the debarkation of a hostile army on our unprotected shores? Who will guarantee that our property will not be laid waste, that our towns will not be put under contribution, by a small naval force, and subjected to all the horror and devastation of war? May not this be done without opposition, at least effectual opposition, in the present situation of our country? There may be safety over the Appalachian Mountains, but there can be none on our sea-coast. With what propriety can we hope our flag will be respected, while we have not a single gun to fire in its defence? "Can we expect to make internal improvement, or accomplish any of those great national objects which I formerly alluded to, when we cannot find money to remove a single rock out of a river? "This system, Sir, will at least make us a nation, and put it in the power of the Union to act as such. We shall be considered as such by every nation in the world. We shall regain the confidence of our citizens, and command the respect of others. "As we shall become a nation, I trust that we shall also form a national character, and that this character will be adapted to the principles and genius of our system of government: as yet we possess none; our language, manners, customs, habits, and dress depend too much upon those of other countries. Every nation, in these respects, should possess originality; there are not, on any part of the globe, finer qualities for forming a national character, than those possessed by the children of America. Activity, perseverance, industry, laudable emulation, docility in acquiring information, firmness in adversity, and patience and magnanimity under the greatest hardships;--from these materials, what a respectable national character may be raised! In addition to this character, I think there is strong reason to believe that America may take the lead in literary improvements and national importance. This is a subject which, I confess, I have spent much pleasing time in considering. That language, Sir, which shall become most generally known in the civilized world will impart great importance over the nation that shall use it. The language of the United States will, in future times, be diffused over a greater extent of country than any other that we know. The French, indeed, have made laudable attempts towards establishing a universal language; but, beyond the boundaries of France, even the French language is not spoken by one in a thousand. Besides the freedom of our country, the great improvements she has made, and will make, in the science of government, will induce the patriots and _literati_ of every nation to read and understand our writings on that subject; and hence it is not improbable that she will take the lead in political knowledge. "If we adopt this system of government, I think we may promise security, stability, and tranquillity to the governments of the different States. They would not be exposed to the danger of competition on questions of territory, or any other that have heretofore disturbed them. A tribunal is here found to decide, justly and quietly, any interfering claim; and now is accomplished what the great mind of Henry IV. of France had in contemplation,--a system of government for large and respectable dominions, united and bound together, in peace, under a superintending head, by which all their differences may be accommodated, without the destruction of the human race. We are told by Sully that this was the favorite pursuit of that good king during the last years of his life; and he would probably have carried it into execution, had not the dagger of an assassin deprived the world of his valuable life. I have, with pleasing emotion, seen the wisdom and beneficence of a less efficient power under the Articles of Confederation, in the determination of the controversy between the States of Pennsylvania and Connecticut; but I have lamented that the authority of Congress did not extend to extinguish, entirely, the spark which has kindled a dangerous flame in the district of Wyoming. "Let gentlemen turn their attention to the amazing consequences which this principle will have in this extended country. The several States cannot war with each other; the general government is the great arbiter in contentions between them; the whole force of the Union can be called forth to reduce an aggressor to reason. What a happy exchange for the disjointed, contentious State sovereignties! "The adoption of this system will also secure us from danger, and procure us advantages from foreign nations. This, in our situation, is of great consequence. We are still an inviting object to one European power at least; and, if we cannot defend ourselves, the temptation may become too alluring to be resisted. I do not mean that, with an efficient government, we should mix with the commotions of Europe. No, Sir; we are happily removed from them, and are not obliged to throw ourselves into the scale with any. This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into a war. I cannot forbear, on this occasion, the pleasure of mentioning to you the sentiments of the great and benevolent man, whose works I have already quoted on another subject. M. Necker has addressed this country in language important and applicable in the strictest degree to its situation and to the present subject. Speaking of war, and the greatest caution that all nations ought to use in order to avoid its calamities,--'And you, rising nation,' says he, 'whom generous efforts have freed from the yoke of Europe! let the universe be struck with still greater reverence at the sight of the privileges you have acquired, by seeing you continually employed for the public felicity: do not offer it as a sacrifice at the unsettled shrine of political ideas, and of the deceitful combinations of warlike ambition; avoid, or at least delay, participating in the passions of our hemisphere; make your own advantage of the knowledge which experience alone has given to our old age, and preserve, for a long time, the simplicity of childhood; in short, honor human nature, by showing that, when left to its own feelings, it is still capable of those virtues that maintain public order, and of that prudence which insures public tranquillity.' "Permit me to offer one consideration more, that ought to induce our acceptance of this system. I feel myself lost in the contemplation of its magnitude. By adopting this system, we shall probably lay a foundation for erecting temples of liberty in every part of the earth. It has been thought by many, that on the success of the struggle America has made for freedom will depend the exertions of the brave and enlightened of other nations. The advantages resulting from this system will not be confined to the United States, but will draw from Europe many worthy characters, who pant for the enjoyment of freedom. It will induce princes, in order to preserve their subjects, to restore to them a portion of that liberty of which they have for many ages been deprived. It will be subservient to the great designs of Providence with regard to this globe,--the multiplication of mankind, their improvement in knowledge, and their advancement in happiness." (Elliot's Debates, II. 423-434, 524-529.) CHAPTER XV. RANDOLPH. Edmund Randolph, a "child of the Revolution,"[451] was Governor of Virginia at the time of the Federal Convention. Probably it was on account of his position as the chief magistrate of the State that he was, by the general consent of his colleagues, selected to bring forward the Virginia plan of government, which was submitted at an early period of the deliberations, and which became, after great modifications, the nucleus of the Constitution. At an early age, in August, 1775, this gentleman joined the army at Cambridge, and was immediately taken into Washington's military family as an aide-de-camp.[452] He served in this capacity, however, no longer than until the following November, when he was suddenly recalled to Virginia by the death of his relative, Peyton Randolph, the President of the First Continental Congress. In 1779, he became a member of Congress from Virginia, and served until March, 1782. In 1786, he was elected Governor of Virginia, succeeding in that office Patrick Henry. In this capacity, it became his duty to secure the attendance of Washington upon the Federal Convention. This matter he managed with great tact and delicacy; and, by the aid of other friends, he succeeded in overcoming the scruples of the illustrious patriot then reposing in the retirement of Mount Vernon. Governor Randolph's conduct with regard to the Constitution might seem to be marked by inconsistency, if we were not able to explain it by the motive of disinterested patriotism from which he evidently acted. He brought to the Convention the most serious apprehensions for the fate of the Union. But he thought that the dangers with which it was surrounded might be averted, by correcting and enlarging the Articles of Confederation. When, at length, the government which was actually framed was found to be a system containing far greater restraints upon the powers of the States than he believed to be either expedient or safe, he endeavored to procure a vote authorizing amendments to be submitted by the State conventions and to be finally decided on by another general convention. This proposition having been rejected, he declined to sign the Constitution, desiring to be free to oppose or advocate its adoption, when it should come before his own State, as his judgment might dictate. When the time for such action came, he saw that the rejection of the Constitution must be followed by disunion. He had wearied himself in endeavoring to find a possibility of preserving the Union without an unconditional ratification by Virginia. To the people of Virginia, therefore, he painted with great force and eloquence the consequences of their becoming severed from the rest of the country. Virginia was not, he said, invulnerable. She was accessible to a foreign enemy by sea, and through the waters of the Chesapeake. Her situation by land was not less exposed. Her frontiers adjoined the States of Pennsylvania, Maryland, and North Carolina. With the first she had long had a disputed boundary, concerning which there had been imminent danger of a war, that had been averted with the greatest difficulty. With Maryland, there was an ancient controversy upon the navigation of the Potomac, and that controversy, if decided on grounds of strict right, would be determined by the charter of Maryland in favor of that State. With North Carolina, too, the boundary was still unsettled. Let them call to mind, then, the history of every part of the world, where independent nations bordered in the same way on one another. Such countries had ever been a perpetual scene of bloodshed; the inhabitants of one escaping from punishment into the other,--protection given to them,--consequent pursuit, violence, robbery, and murder. A numerous standing army, that dangerous expedient, could alone defend such borders. On her Western frontier, Virginia was peculiarly exposed to the savages, the natural enemies of the white race, whom foreign gold could always incite to commit the most horrible ravages upon her people. Her slave population, bearing a very large proportion to the whites,[453] necessarily weakened her capacity to defend herself against such an enemy. Virginia, then, must be defended. Could they rely on the militia? Their militia did not, at the utmost, exceed sixty thousand men. They had performed exploits of great gallantry during the late war, but no militia could be relied on as the sole protectors of any country. Besides, a part of them would be wanted for the purposes of agriculture, for manufactures, and for the mechanic arts necessary for the aid of the farmer and the planter. They must have an army; and they must also have a navy. But how were these to be maintained without money? The enormous debt of Virginia, including her proportion of the Continental debts, was already beyond her ability to pay from any revenue that could be derived from her present commerce. In this state of things, looking forward to the consequences of a dissolution of the Union, he could not but remind the people of Virginia of what took place in 1781, when the power of a dictator was given to the commander-in-chief, to save the country from destruction. At some period, not very remote, might not their future distress impel them to do what the Dutch had done,--throw all power into the hands of a Stadtholder? How infinitely more wise and eligible than this desperate alternative would be a union with their American brethren. "I have labored," said he, "for the continuance of the Union,--the rock of our salvation. I believe, as surely as that there is a God, that our safety, our political happiness and existence, depend on the union of the States; and that, without this union, the people of this and the other States will undergo the unspeakable calamities which discord, faction, turbulence, war, and bloodshed have produced in other countries. The American spirit ought to be mixed with American pride, to see the Union magnificently triumphant. Let that glorious pride, which once defied the British thunder, reanimate you again. Let it not be recorded of Americans, that, after having performed the most gallant exploits, after having overcome the most astonishing difficulties, and after having gained the admiration of the world by their incomparable valor and policy, they lost their acquired reputation, their national consequence and happiness, by their own indiscretion. Let no future historian inform posterity that they wanted wisdom and virtue to concur in any regular, efficient government. Should any writer, doomed to so disagreeable a task, feel the indignation of an honest historian, he would reprehend our folly with equal severity and justice. Catch the present moment,--seize it with avidity,--for it may be lost, never to be regained! If the Union be now lost, I fear it will remain so for ever. I believe gentlemen are sincere in their opposition, and actuated by pure motives; but when I maturely weigh the advantages of the Union, and the dreadful consequences of its dissolution; when I see safety on my right, and destruction on my left; when I behold respectability and happiness acquired by one course, but annihilated by the other,--I cannot hesitate in my decision."[454] NOTE.--The following account of the genealogy of Governor Randolph, for which I am indebted to one of his female descendants, was not received in season to be incorporated in the text. Edmund Randolph was the son of John Randolph and grandson of Sir John Randolph, each of whom was Attorney-General of the Colony under the royal government. He was educated at William and Mary's College. Peyton Randolph, President of the First Continental Congress, was also a son of Sir John Randolph, and of course was uncle of Edmund Randolph, to whom he devised his estate. Sir John Randolph was one of five or six sons of William Randolph of Turkey Island in Virginia, from whom all the Randolphs in Virginia are descended. Of this William Randolph little is known, beyond the fact that he was a large landholder, and a nephew of Thomas Randolph, the poet, who flourished in the reigns of James I. and Charles I., 1605-1634. FOOTNOTES: [451] His own description of himself in a speech made in the Virginia Convention which ratified the Constitution. Elliot, III. 65. [452] Washington's Writings, IX. 66. [453] He stated the number of blacks to be 236,000, and that of the whites only 352,000. [454] Debates in the Virginia Convention, Elliot, III. 65-84, 85, 86. CHAPTER XVI. CONCLUSION OF THE PRESENT VOLUME. The limits of this volume do not admit of a farther description of the Framers of the Constitution. The nine persons of whom some account has been given were the most important members of the Convention, and those who exercised the largest influence upon its decisions. But the entire list embraced other men of great distinction and ability, celebrated, before and since the Convention, in that period of the political history of America which commenced with the Revolution and closed with the eighteenth century. Such were Roger Sherman of Connecticut, Robert Morris of Pennsylvania, John Dickinson of Delaware, John Rutledge and Charles Pinckney of South Carolina, and George Mason of Virginia. Of the rest, all were men of note and influence in their respective States, possessing the full confidence of the people whom they represented. The whole assembly consisted of only fifty-five members, representing twelve sovereign and distinct communities.[455] That so small a body should have contained so large a number of statesmen of preëminent ability is a striking proof of the nature of the crisis which called it into existence. The age which had witnessed the Revolution, and the wants and failures that succeeded it, produced and trained these great men, made them capable of the highest magnanimity, and gave them the intellectual power necessary to surmount the difficulties that obstructed the progress of their country to prosperity and renown. These, with a few of their contemporaries at that moment engaged in other spheres of public duty, are the men who illustrate and adorn it, and the knowledge of their lives and actions is of unspeakable importance to the people of the United States. To that people is committed a trust, which imposes upon them a greater responsibility than now rests upon any other people on the globe. They possess a written and exact constitution of government, framed with great wisdom by their own deputed agents, and deliberately adopted and enacted by themselves. That Constitution rules over a country of vast extent, inhabited by more than twenty millions of prosperous and intelligent freemen, who constitute one of the first nations of the world. Nowhere on the face of the globe has the experiment of self-government--that experiment so rarely tried, so rarely successful, and so important to the welfare of mankind--been conducted on a scale so grand and imposing. To prevent a failure so disastrous to the best interests of the human race as the failure of that experiment here must inevitably become; to guard this Constitution, the work of their own hands, from every kind of attack; to administer it in the wise spirit in which it was framed; to draw from it the blessings which it was designed to confer; to unfold, to cherish, and to defend its great principles for the benefit of a countless posterity;--this is the high duty imposed by a noble ancestry and an overruling Providence upon the people of this Union of each succeeding generation. It calls upon them, with a remonstrance in whose tones there is both a warning and a cheering voice, to remember that they have a country; to appreciate and fearlessly to survey the truth, that national honor and success, internal tranquillity and peace, reputation abroad and safety at home, can exist, for them, only under the Union which the Divine government, for its own all-wise purposes, has made a necessity of their condition; and to see that the ruin of self-government in America must involve its ruin for the whole world.[456] FOOTNOTES: [455] For a full list of the Delegates, see the Appendix to this volume. [456] In this connection, I cannot avoid a reference to Dr. Francis Lieber's profound and admirable work "On Civil Liberty and Self-government." Whoever will follow that very able writer in his masterly exposition of the principles of Anglican liberty, will become satisfied that the American branch of it is more strictly a system of "self-government" than any other, speaking with reference to the application of the principle to every department. The destruction of such a system, therefore, would be the destruction of self-government in its most complete form. No one can suppose that the popular principles in the English Constitution would continue to expand, as they have done for the last fifty years, if the corresponding principles in America were to be overthrown, or even if they were to receive a sensible check. APPENDIX. IN CONGRESS. CIRCULAR LETTER OF CONGRESS RECOMMENDING THE ADOPTION OF THE ARTICLES OF CONFEDERATION. IN CONGRESS, YORKTOWN, November 17th, 1777. Congress having agreed upon a plan of confederacy for securing the freedom, sovereignty, and independence of the United States, authentic copies are now transmitted for the consideration of the respective legislatures. This business, equally intricate and important, has in its progress been attended with uncommon embarrassments and delay, which the most anxious solicitude and persevering diligence could not prevent. To form a permanent union, accommodated to the opinion and wishes of the delegates of so many States differing in habits, produce, commerce, and internal police, was found to be a work which nothing but time and reflection, conspiring with a disposition to conciliate, could mature and accomplish. Hardly is it to be expected that any plan, in the variety of provisions essential to our union, should exactly correspond with the maxims and political views of every particular State. Let it be remarked, that, after the most careful inquiry and the fullest information, this is proposed as the best which could be adapted to the circumstances of all, and as that alone which affords any tolerable prospect of general satisfaction. Permit us, then, earnestly to recommend these articles to the immediate and dispassionate attention of the legislatures of the respective States. Let them be candidly reviewed, under a sense of the difficulty of combining in one general system the various sentiments and interests of a continent divided into so many sovereign and independent communities, under a conviction of the absolute necessity of uniting all our counsels and all our strength to maintain and defend our common liberties; let them be examined with a liberality becoming brethren and fellow-citizens surrounded by the same imminent dangers, contending for the same illustrious prize, and deeply interested in being for ever bound and connected together by ties the most intimate and indissoluble; and, finally, let them be adjusted with the temper and magnanimity of wise and patriotic legislators, who, while they are concerned for the prosperity of their own more immediate circle, are capable of rising superior to local attachments, when they may be incompatible with the safety, happiness, and glory of the general confederacy. We have reason to regret the time which has elapsed in preparing this plan for consideration; with additional solicitude we look forward to that which must be necessarily spent before it can be ratified. Every motive loudly calls upon us to hasten its conclusion. More than any other consideration, it will confound our foreign enemies, defeat the flagitious practices of the disaffected, strengthen and confirm our friends, support our public credit, restore the value of our money, enable us to maintain our fleets and armies, and add weight and respect to our counsels at home and to our treaties abroad. In short, this salutary measure can no longer be deferred. It seems essential to our very existence as a free people, and without it we may feel constrained to bid adieu to independence, to liberty and safety,--blessings which, from the justice of our cause and the favor of our Almighty Creator visibly manifested in our protection, we have reason to expect, if, in an humble dependence on his divine providence, we strenuously exert the means which are placed in our power. To conclude, if the legislature of any State shall not be assembled, Congress recommend to the executive authority to convene it without delay; and to each respective legislature it is recommended to invest its delegates with competent powers ultimately, in the name and behalf of the State, to subscribe Articles of Confederation and Perpetual Union of the United States; and to attend Congress for that purpose on or before the tenth day of March next. * * * * * NEW JERSEY. REPRESENTATION OF THE STATE OF NEW JERSEY ON THE ARTICLES OF CONFEDERATION, READ IN CONGRESS, JUNE 25, 1778. _To the United States in Congress assembled: The Representation of the Legislative Council and General Assembly of the State of New Jersey showeth_:-- That the Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, proposed by the honorable the Congress of the said States, severally for their consideration, have been by us fully and attentively considered; on which we beg leave to remark as follows:-- 1. In the fifth article, where, among other things, the qualifications of the delegates from the several States are described, there is no mention of any oath, test, or declaration, to be taken or made by them previous to their admission to seats in Congress. It is, indeed, to be presumed the respective States will be careful that the delegates they send to assist in managing the general interest of the Union take the oaths to the government from which they derive their authority; but as the United States, collectively considered, have interests, as well as each particular State, we are of opinion that some test or obligation binding upon each delegate while he continues in the trust, to consult and pursue the former as well as the latter, and particularly to assent to no vote or proceeding which may violate the general confederation, is necessary. The laws and usages of all civilized nations evince the propriety of an oath on such occasions; and the more solemn and important the deposit, the more strong and explicit ought the obligation to be. 2. By the sixth and ninth articles, the regulation of trade seems to be committed to the several States within their separate jurisdictions, in such a degree as may involve many difficulties and embarrassments, and be attended with injustice to some States in the Union. We are of opinion, that the sole and exclusive power of regulating the trade of the United States with foreign nations ought to be clearly vested in the Congress; and that the revenue arising from all duties and customs imposed thereon ought to be appropriated to the building, equipping, and manning a navy for the protection of the trade and defence of the coasts, and to such other public and general purposes as to the Congress shall seem proper, and for the common benefit of the States. This principle appears to us to be just, and it may be added, that a great security will by this means be derived to the Union from the establishment of a common and mutual interest. 3. It is wisely provided, in the sixth article, that no body of forces shall be kept up by any State in time of peace, except such number only as, in the judgment of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such States. We think it ought also to be provided and clearly expressed, that no body of troops be kept up by the United States in time of peace, except such number only as shall be allowed by the assent of the nine States. A standing army, a military establishment, and every appendage thereof, in time of peace, is totally abhorrent from the ideas and principles of this State. In the memorable act of Congress declaring the United Colonies free and independent States, it is emphatically mentioned, as one of the causes of separation from Great Britain, that the sovereign thereof had kept up among us, in time of peace, standing armies without the consent of the legislatures. It is to be wished the liberties and happiness of the people may by the Confederation be carefully and explicitly guarded in this respect. 4. On the eighth article we observe, that, as frequent settlements of the quotas for supplies and aids to be furnished by the several States in support of the general treasury will be requisite, so they ought to be secured. It cannot be thought improper, or unnecessary, to have them struck once at least in every five years, and oftener if circumstances will allow. The quantity or value of real property in some States may increase much more rapidly than in others; and therefore the quota which is at one time just will at another be disproportionate. 5. The boundaries and limits of each State ought to be fully and finally fixed and made known. This we apprehend would be attended with very salutary effects, by preventing jealousies, as well as controversies, and promoting harmony and confidence among the States. If the circumstances of the times would not admit of this, previous to the proposal of the Confederation to the several States, the establishment of the principles upon which and the rule and mode by which the determination might be conducted at a time more convenient and favorable for despatching the same at an early period, not exceeding five years from the final ratification of the Confederation, would be satisfactory. 6. The ninth article provides, that no State shall be deprived of territory for the benefit of the United States. Whether we are to understand, that by territory is intended any land, the property of which was heretofore vested in the crown of Great Britain, or that no mention of such land is made in the Confederation, we are constrained to observe, that the present war, as we always apprehended, was undertaken for the general defence and interest of the confederating Colonies, now the United States. It was ever the confident expectation of this State, that the benefits derived from a successful contest were to be general and proportionate; and that the property of the common enemy, falling in consequence of a prosperous issue of the war, would belong to the United States, and be appropriated to their use. We are therefore greatly disappointed in finding no provision made in the Confederation for empowering the Congress to dispose of such property, but especially the vacant and impatented lands, commonly called the crown lands, for defraying the expenses of the war, and for such other public and general purposes. The jurisdiction ought in every instance to belong to the respective States within the charter or determined limits of which such lands may be seated; but reason and justice must decide that the property which existed in the crown of Great Britain, previous to the present Revolution, ought now to belong to the Congress, in trust for the use and benefit of the United States. They have fought and bled for it in proportion to their respective abilities; and therefore the reward ought not to be predilectionally distributed. Shall such States as are shut out by situation from availing themselves of the least advantage from this quarter be left to sink under an enormous debt, whilst others are enabled, in a short period, to replace all their expenditures from the hard earnings of the whole confederacy? 7. The ninth article also provides, that requisitions for the land forces to be furnished by the several States shall be proportioned to the number of _white_ inhabitants in each. In the act of Independence we find the following declaration: "We hold these truths to be self-evident, that all men are created equal; that they are endued by their Creator with certain unalienable rights, among which are life, liberty, and the pursuit of happiness." Of this doctrine it is not a very remote consequence, that all the inhabitants of every society, be the color of their complexion what it may, are bound to promote the interest thereof, according to their respective abilities. They ought, therefore, to be brought into the account on this occasion. But admitting necessity or expediency to justify the refusal of liberty in certain circumstances to persons of a peculiar color, we think it unequal to reckon upon such in this case. Should it be improper, for special local reasons, to admit them in arms for the defence of the nation, yet we conceive the proportion of forces to be embodied ought to be fixed according to the whole number of inhabitants in the State, from whatever class they may be raised. If the whole number of inhabitants in a State, whose inhabitants are all whites, both those who are called into the field, and those who remain to till the ground and labor in the mechanical arts and otherwise, are reckoned in the estimate for striking the proportion of forces to be furnished by that State, ought even a part of the latter description to be left out in another? As it is of indispensable necessity in every war, that a part of the inhabitants be employed for the uses of husbandry and otherwise at home, while others are called into the field, there must be the same propriety that the owners of a different color who are employed for this purpose in one State, while whites are employed for the same purpose in another, be reckoned in the account of the inhabitants in the present instance. 8. In order that the quota of troops to be furnished in each State on occasion of a war may be equitably ascertained, we are of opinion that the inhabitants of the several States ought to be numbered as frequently as the nature of the case will admit, once at least every five years. The disproportioned increase in the population of different States may render such provisions absolutely necessary. 9. It is provided in the ninth article, that the assent of nine States out of the thirteen shall be necessary to determine in sundry cases of the highest concern. If this proportion be proper and just, it ought to be kept up, should the States increase in number, and a declaration thereof be made for the satisfaction of the Union. That we think it our indispensable duty to solicit the attention of Congress to these considerations and remarks, and to request that the purport and meaning of them be adopted as part of the general confederation; by which means we apprehend the mutual interest of all the States will be better secured and promoted, and that the legislature of this State will then be justified in ratifying the same. ACT OF NEW JERSEY ACCEPTING THE CONFEDERATION, PASSED NOVEMBER 19, 1778. _An Act to authorize and empower the Delegates of the State of New Jersey in Congress to subscribe and ratify the Articles of Confederation and Perpetual Union between the several States._ Whereas, Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, signed in the Congress of the said States by the Honorable Henry Laurens, Esquire, their President, have been laid before the legislature of this State, to be ratified by the same, if approved: And whereas, notwithstanding the terms of the said Articles of Confederation and Perpetual Union are considered as in divers respects unequal and disadvantageous to this State, and the objections to several of the said articles, lately stated and sent to the general Congress aforesaid on the part of this State, are still viewed as just and reasonable, and sundry of them as of the most essential moment to the welfare and happiness of the good people thereof: Yet, under the full conviction of the present necessity of acceding to the confederacy proposed, and that every separate and detached State interest ought to be postponed to the general good of the Union: And moreover, in firm reliance that the candor and justice of the several States will, in due time, remove as far as possible the inequality which now subsists:-- SECT. 1. Be it enacted by the Council and General Assembly of this State, and it is hereby enacted by the authority of the same, That the Honorable John Witherspoon, Abraham Clark, Nathaniel Scudder, and Elias Boudinot, Esquires, delegates representing this State in the Congress of the United States, or any one or more of them, be and they are hereby authorized, empowered, and directed, on behalf of this State, to subscribe and ratify the said Articles of Confederation and Perpetual Union between the States aforesaid. SECT. 2. And be it further enacted by the authority aforesaid, That the said Articles of Confederation and Perpetual Union, so as aforesaid subscribed and ratified, shall thenceforth become conclusive as to this State, and obligatory thereon. * * * * * DELAWARE. RESOLUTIONS PASSED BY THE COUNCIL OF THE STATE OF DELAWARE, JANUARY 23, 1779, RESPECTING THE ARTICLES OF CONFEDERATION AND PERPETUAL UNION, AND CONCURRED IN BY THE HOUSE OF ASSEMBLY, JANUARY 28, 1779, PREVIOUS TO THEIR PASSING A LAW TO EMPOWER THEIR DELEGATES TO SIGN AND RATIFY THE SAID ARTICLES OF CONFEDERATION AND PERPETUAL UNION. _Resolved_, That the paper laid before Congress by the delegate from Delaware, and read, be filed; provided, that it shall never be considered as admitting any claim by the same set up or intended to be set up. The paper is as follows, viz.:-- IN THE COUNCIL, Saturday, January 23, 1779, P. M. The Council, having resumed the consideration of the committee's report on the Articles of Confederation and Perpetual Union, &c., came to the following resolutions therein:-- _Resolved_, That this State think it necessary for the peace and safety of the States to be included in the Union, that a moderate extent of limits should be assigned for such of those States as claim to the Mississippi or South Sea; and that the United States in Congress assembled should and ought to have the power of fixing their western limits. _Resolved also_, That this State consider themselves justly entitled to a right, in common with the members of the Union, to that extensive tract of country which lies to the westward of the frontiers of the United States, the property of which was not vested in, or granted to, individuals at the commencement of the present war: That the same hath been, or may be, gained from the king of Great Britain, or the native Indians, by the blood and treasure of all, and ought therefore to be a common estate, to be granted out on terms beneficial to the United States. _Resolved also_, That the courts of law established within this State are competent for the purpose of determining all controversies concerning the private right of soil claimed within the same; and they now, and at all times hereafter, ought to have cognizance of all such controversies: That the indeterminate provision, in the ninth article of the Confederation, for deciding upon controversies that may arise about some of those private rights of soil, tends to take away such cognizance, and is contrary to the declaration of rights of this State; and therefore ought to receive an alteration. The Council, then, taking into consideration the strong and earnest recommendations of Congress forthwith to accede to the present plan of confederacy, and the probable disadvantages that may attend the further delaying a ratification thereof,-- _Resolved_, That, notwithstanding the terms of the Articles of Confederation aforesaid are considered as in divers respects unequal and disadvantageous to this State, and the objections in the report of the committee of this house, and the resolves made thereon, are viewed as just and reasonable, and of great moment to the welfare and happiness of the good people thereof; yet, under the full conviction of the present necessity of acceding to the confederacy proposed, and in firm reliance that the candor and justice of the several States will in due time remove as far as possible the objectionable parts thereof, the delegates appointed to represent this State in Congress, or any one or more of them, be authorized, empowered, and directed, on behalf of this State, to subscribe and ratify the said Articles of Confederation and Perpetual Union between the several States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and that the said articles, when so subscribed and ratified, shall be obligatory on this State. Extract from the Minutes. BENJAMIN VINING, _Clerk of the Council_. Sent for concurrence. IN HOUSE OF ASSEMBLY, Thursday, January 28, 1779. The foregoing resolutions being read three times, and considered, are concurred in. NICHOLAS VAN DYKE, _Speaker_. THURSDAY, FEBRUARY 16, 1779. Mr. M'Kean, a delegate for Delaware, laid before Congress the following instrument, empowering the delegates of that State, or any of them, to ratify and sign the Articles of Confederation. His Excellency Cesar Rodney, Esquire, President, Captain-General, and Commander-in-Chief of the Delaware State, to all to whom these Presents shall come,--Greeting. Know ye, That, among the records remaining in the rolls office in the Delaware State, there is a certain instrument of writing, purporting to be an act of the General Assembly of the said State, which said act is contained in the words and tenor here following, to wit: IN THE YEAR 1779. _An Act to authorize and empower the Delegates of the Delaware State to subscribe and ratify the Articles of Confederation and Perpetual Union between the several States._ Whereas Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, signed in the general Congress of the said States by the Honorable Henry Laurens, Esquire, their then President, have been laid before the legislature of this State, to be ratified by the same, if approved: And whereas, notwithstanding the terms of the Articles of Confederation and Perpetual Union are considered as in divers respects unequal and disadvantageous to this State; and the objections stated on the part of this State are viewed as just and reasonable, and of great moment to the welfare and happiness of the good people thereof; yet, under the full conviction of the present necessity of acceding to the present confederacy proposed, and that the interest of particular States ought to be postponed to the general good of the Union; and moreover, in firm reliance that the candor and justice of the several States will in due time remove as far as possible the objectionable parts thereof: Be it enacted by the General Assembly of Delaware, and it is hereby enacted by the authority of the same, That the Honorable John Dickinson, Nicholas Van Dyke, and Thomas M'Kean, Esquires, delegates appointed to represent this State in Congress, or any one or more of them, be, and they hereby are, authorized, empowered, and directed, on behalf of this State, to subscribe and ratify the said Articles of Confederation and Perpetual Union between the several States aforesaid. And be it further enacted by the authority aforesaid, That the said Articles of Confederation and Perpetual Union, so as aforesaid subscribed and ratified, shall thenceforth become obligatory on this State. Signed by order of the House of Assembly. NICHOLAS VAN DYKE, _Speaker_. Signed by order of the Council. THOMAS COLLINS, _Speaker_. Passed at Dover, February 1, 1779. All which, by the tenor of these presents, I have caused to be exemplified. In testimony whereof, the great seal of the Delaware State is hereunto affixed, at Dover, the sixth day of February, in the year of our Lord one thousand seven hundred and seventy-nine, and in the third year of the Independence of the United States of America. CESAR RODNEY. By his Excellency's command. JAMES BOOTH, _Secretary_. * * * * * MARYLAND. FRIDAY, MAY 21, 1779. The delegates of Maryland informed Congress that they have received instructions respecting the Articles of Confederation, which they are directed to lay before Congress, and have entered on their Journals. The instructions, being read, are as follows:-- _Instructions of the General Assembly of Maryland, to George Plater, William Paca, William Carmichael, John Henry, James Forbes, and Daniel of St. Thomas Jenifer, Esquires._ GENTLEMEN,-- Having conferred upon you a trust of the highest nature, it is evident we place great confidence in your integrity, abilities, and zeal to promote the general welfare of the United States, and the particular interest of this State, where the latter is not incompatible with the former; but to add greater weight to your proceedings in Congress, and take away all suspicion that the opinions you there deliver and the votes you give may be the mere opinions of individuals, and not resulting from your knowledge of the sense and deliberate judgment of the State you represent, we think it our duty to instruct as followeth on the subject of the Confederation,--a subject in which, unfortunately, a supposed difference of interest has produced an almost equal division of sentiments among the several States composing the Union. We say a supposed difference of interests; for if local attachments and prejudices, and the avarice and ambition of individuals, would give way to the dictates of a sound policy, founded on the principles of justice, (and no other policy but what is founded on those immutable principles deserves to be called sound,) we flatter ourselves this apparent diversity of interests would soon vanish, and all the States would confederate on terms mutually advantageous to all; for they would then perceive that no other confederation than one so formed can be lasting. Although the pressure of immediate calamities, the dread of their continuance from the appearance of disunion, and some other peculiar circumstances, may have induced some States to accede to the present Confederation, contrary to their own interests and judgments, it requires no great share of foresight to predict, that, when those causes cease to operate, the States which have thus acceded to the Confederation will consider it as no longer binding, and will eagerly embrace the first occasion of asserting their just rights, and securing their independence. Is it possible that those States who are ambitiously grasping at territories to which, in our judgment, they have not the least shadow of exclusive right, will use with greater moderation the increase of wealth and power derived from those territories, when acquired, than what they have displayed in their endeavors to acquire them? We think not. We are convinced the same spirit which hath prompted them to insist on a claim so extravagant, so repugnant to every principle of justice, so incompatible with the general welfare of all the States, will urge them on to add oppression to injustice. If they should not be incited by a superiority of wealth and strength to oppress by open force their less wealthy and less powerful neighbors, yet depopulation, and consequently the impoverishment, of those States will necessarily follow, which, by an unfair construction of the Confederation, may be stripped of a common interest, and the common benefits derivable from the Western country. Suppose, for instance, Virginia indisputably possessed of the extensive and fertile country to which she has set up a claim, what would be the probable consequences to Maryland of such an undisturbed and undisputed possession? They cannot escape the least discerning. Virginia, by selling on the most moderate terms a small proportion of the lands in question, would draw into her treasury vast sums of money; and in proportion to the sums arising from such sales would be enabled to lessen her taxes. Lands comparatively cheap, and taxes comparatively low, with the lands and taxes of an adjacent State, would quickly drain the State thus disadvantageously circumstanced of its most useful inhabitants; its wealth and its consequence in the scale of the confederated States would sink of course. A claim so injurious to more than one half, if not to the whole, of the United States, ought to be supported by the clearest evidence of the right. Yet what evidences of that right have been produced? What arguments alleged in support either of the evidences or the right? None that we have heard of deserving a serious refutation. It has been said, that some of the delegates of a neighboring State have declared their opinion of the practicability of governing the extensive dominion claimed by that State. Hence also the necessity was admitted of dividing its territory, and erecting a new State under the auspices and direction of the elder, from whom no doubt it would receive its form of government, to whom it would be bound by some alliance or confederacy, and by whose councils it would be influenced. Such a measure, if ever attempted, would certainly be opposed by the other States as inconsistent with the letter and spirit of the proposed Confederation. Should it take place by establishing a sub-confederacy, _imperium in imperio_, the State possessed of this extensive dominion must then either submit to all the inconveniences of an overgrown and unwieldy government, or suffer the authority of Congress to interpose at a future time, and to lop off a part of its territory, to be erected into a new and free State, and admitted into a confederation on such conditions as shall be settled by nine States. If it is necessary for the happiness and tranquillity of a State thus overgrown, that Congress should hereafter interfere and divide its territory, why is the claim to that territory now made, and so pertinaciously insisted on? We can suggest to ourselves but two motives; either the declaration of relinquishing at some future period a proportion of the country now contended for was made to lull suspicion asleep, and to cover the designs of a secret ambition, or, if the thought was seriously entertained, the lands are now claimed to reap an immediate profit from the sale. We are convinced, policy and justice require, that a country unsettled at the commencement of this war, claimed by the British crown, and ceded to it by the treaty of Paris, if wrested from the common enemy by the blood and treasure of the thirteen States, should be considered as a common property, subject to be parcelled out by Congress into free, convenient, and independent governments, in such manner and at such times as the wisdom of that assembly shall hereafter direct. Thus convinced, we should betray the trust reposed in us by our constituents, were we to authorize you to ratify, on their behalf, the Confederation, unless it be further explained. We have coolly and dispassionately considered the subject; we have weighed probable inconveniences and hardships against the sacrifice of just and essential rights; and do instruct you not to agree to the Confederation, unless an article or articles be added thereto in conformity with our declaration. Should we succeed in obtaining such article or articles, then you are hereby fully empowered to accede to the Confederation. That these our sentiments respecting our Confederation may be more publicly known, and more explicitly and concisely declared, we have drawn up the annexed declaration, which we instruct you to lay before Congress, to have it printed, and to deliver to each of the delegates of the other States in Congress assembled copies thereof, signed by yourselves, or by such of you as may be present at the time of delivery; to the intent and purpose that the copies aforesaid may be communicated to our brethren of the United States, and the contents of the said declaration taken into their serious and candid consideration. Also we desire and instruct you to move, at a proper time, that these instructions be read to Congress by their Secretary, and entered on the Journals of Congress. We have spoken with freedom, as became freemen; and we sincerely wish that these our representations may make such an impression on that assembly as to induce them to make such addition to the Articles of Confederation as may bring about a permanent union. A true copy from the proceeding of December 15, 1778. Test, T. DUCKETT, _C. H. D._ * * * * * IN CONGRESS. SATURDAY, APRIL 1, 1780. The committee to whom was referred the act of the legislature of the State of New York, entitled, "An Act to facilitate the completion of the Articles of Confederation and Perpetual Union among the United States of America," report,-- That, having met on the business, but not being able to agree to any resolution thereon, desire to be discharged; which act is in the words following, viz.:-- _An Act to facilitate the Completion of the Articles of Confederation and Perpetual Union among the United States of America._ Whereas nothing under Divine Providence can more effectually contribute to the tranquillity and safety of the United States of America than a federal alliance, on such liberal principles as will give satisfaction to its respective members: And whereas the Articles of Confederation and Perpetual Union recommended by the honorable the Congress of the United States of America have not proved acceptable to all the States, it having been conceived that a portion of the waste and uncultivated territory, within the limits or claim of certain States, ought to be appropriated as a common fund for the expenses of the war: And the people of the State of New York being on all occasions disposed to manifest their regard for their sister States, and their earnest desire to promote the general interest and security; and more especially to accelerate the federal alliance, by removing, as far as it depends upon them, the before-mentioned impediment to its final accomplishment: Be it therefore enacted, by the people of the State of New York, represented in Senate and Assembly, and it is hereby enacted by the authority of the same, That it shall and may be lawful to and for the delegates of this State, in the honorable Congress of the United States of America, or the major part of such of them as shall be assembled in Congress, and they the said delegates, or a major part of them, so assembled, are hereby fully authorized and empowered, for and on behalf of this State, and by proper and authentic acts or instruments, to limit and restrict the boundaries of this State, in the western parts thereof, by such line or lines, and in such manner and form, as they shall judge to be expedient, either with respect to the jurisdiction as well as the right or preëmption of soil, or reserving the jurisdiction in part, or in the whole, over the lands which may be ceded, or relinquished, with respect only to the right or preëmption of the soil. And be it further enacted by the authority aforesaid, That the territory which may be ceded or relinquished by virtue of this act, either with respect to the jurisdiction as well as the right or preëmption of soil, or the right or preëmption of soil only, shall be and enure for the use and benefit of such of the United States as shall become members of the federal alliance of the said States, and for no other use or purpose whatever. And be it further enacted by the authority aforesaid, That all the lands to be ceded and relinquished by virtue of this act, for the benefit of the United States, with respect to property, but which shall nevertheless remain under the jurisdiction of this State, shall be disposed of and appropriated in such manner only as the Congress of the said States shall direct; and that a warrant under the authority of Congress for surveying and laying out any part thereof shall entitle the party in whose favor it shall issue to cause the same to be surveyed and laid out and returned according to the directions of such warrant; and thereupon letters patent under the great seal of this State shall pass to the grantee for the estate specified in the said warrant; for which no other fee or reward shall be demanded or received than such as shall be allowed by Congress. Provided always, and be it further enacted by the authority aforesaid, That the trust reposed by virtue of this act shall not be executed by the delegates of this State, unless at least three of the said delegates shall be present in Congress. _State of New York, ss._ I do hereby certify that the aforegoing is a true copy of the original act, passed the 19th of February, 1780, and lodged in the Secretary's office. ROBERT HARPUR, _D'y Sec'y State_. WEDNESDAY, SEPTEMBER 6, 1780. Congress took into consideration the report of the committee to whom were referred the instructions of the General Assembly of Maryland to their delegates in Congress respecting the Articles of Confederation, and the declaration therein referred to; the act of the legislature of New York on the same subject; and the remonstrance of the General Assembly of Virginia, which report was agreed to, and is in the words following:-- That, having duly considered the several matters to them submitted, they conceive it unnecessary to examine into the merits or policy of the instructions or declaration of the General Assembly of Maryland, or of the remonstrances of the General Assembly of Virginia, as they involve questions a discussion of which was declined, on mature consideration, when the Articles of Confederation were debated; nor, in the opinion of the committee, can such questions be now revived with any prospect of conciliation: That it appears more advisable to press upon these States which can remove the embarrassments respecting the Western country a liberal surrender of a portion of their territorial claims, since they cannot be preserved entire without endangering the stability of the general confederacy; to remind them how indispensably necessary it is to establish the Federal Union on a fixed and permanent basis, and on principles acceptable to all its respective members; how essential to public credit and confidence, to the support of our army, to the vigor of our councils, and success of our measures, to our tranquillity at home, our reputation abroad, to our very existence as a free, sovereign, and independent people; that we are fully persuaded the wisdom of the respective legislatures will lead them to a full and impartial consideration of a subject so interesting to the United States, and so necessary to the happy establishment of the Federal Union; that they are confirmed in these expectations by a view of the before-mentioned act of the legislature of New York, submitted to their consideration; that this act is expressly calculated to accelerate the federal alliance, by removing, as far as depends on that State, the impediment arising from the Western country, and for that purpose to yield up a portion of territorial claim for the general benefit. Whereupon, _Resolved_, That copies of the several papers referred to the committee be transmitted, with a copy of the report, to the legislatures of the several States; and that it be earnestly recommended to these States who have claims to the Western country to pass such laws, and give their delegates in Congress such powers, as may effectually remove the only obstacle to a final ratification of the Articles of Confederation: and that the legislature of Maryland be earnestly requested to authorize their delegates in Congress to subscribe the said articles. * * * * * MARYLAND. MONDAY, FEBRUARY 12, 1781. The delegates of Maryland laid before Congress a certified copy of an act of the legislature of that State, which was read as follows:-- _An Act to empower the Delegates of this State in Congress to subscribe and ratify the Articles of Confederation._ Whereas it hath been said that the common enemy is encouraged, by this State not acceding to the Confederation, to hope that the union of the sister States may be dissolved; and therefore prosecute the war in expectation of an event so disgraceful to America; and our friends and illustrious ally are impressed with an idea, that the common cause would be promoted by our formally acceding to the Confederation: This General Assembly, conscious that this State hath from the commencement of the war strenuously exerted herself in the common cause, and fully satisfied that, if no formal confederation was to take place, it is the fixed determination of this State to continue her exertions to the utmost, agreeable to the faith pledged in the union,--from an earnest desire to conciliate the affections of the sister States, to convince all the world of our unalterable resolution to support the independence of the United States, and the alliance with his most Christian Majesty; and to destroy for ever any apprehension of our friends, or hope in our enemies, of this State being again united to Great Britain: Be it enacted by the General Assembly of Maryland, That the delegates of this State in Congress, or any two or three of them, shall be, and are hereby, empowered and required, on behalf of this State, to subscribe the Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, signed in the general Congress of the said States by the Honorable Henry Laurens, Esquire, their then President, and laid before the legislature of this State to be ratified, if approved; and that the said Articles of Confederation and Perpetual Union, so as aforesaid subscribed, shall thenceforth be ratified and become conclusive as to this State, and obligatory thereon. And it is hereby declared, that, by acceding to the said Confederation, this State doth not relinquish, or intend to relinquish, any right or interest she hath with the other united or confederated States to the back country; but claims the same as fully as was done by the legislature of this State in their declaration which stands entered on the journals of Congress: this State relying on the justice of the several States hereafter, as to the said claim made by this State. And it is further declared, That no article in the said Confederation can or ought to bind this or any other State to guarantee any exclusive claim of any particular State to the soil of the said back lands, or any such claim of jurisdiction over the said lands, or the inhabitants thereof. By the House of Delegates, January 30, 1781. Read and assented to. By order, F. GREEN, _Clerk_. By the Senate, February 2, 1781. Read and assented to. By order, JAS. MACCUBBIN, _Clerk_. THOMAS LEE. [L. S.] * * * * * ARTICLES OF CONFEDERATION AND PERPETUAL UNION BETWEEN THE STATES OF NEW HAMPSHIRE, MASSACHUSETTS BAY, RHODE ISLAND AND PROVIDENCE PLANTATIONS, CONNECTICUT, NEW YORK, NEW JERSEY, PENNSYLVANIA, DELAWARE, MARYLAND, VIRGINIA, NORTH CAROLINA, SOUTH CAROLINA, AND GEORGIA. ART. 1. The style of this Confederacy shall be "The United States of America." ART. 2. Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled. ART. 3. The said States hereby severally enter into a firm league of friendship with each other for their common defence, the security of their liberties, and their mutual and general welfare; binding themselves to assist each other against all force offered to or attacks made upon them on account of religion, sovereignty, trade, or any other pretence whatever. ART. 4. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union, the free inhabitants of each of these States (paupers, vagabonds, and fugitives from justice excepted) shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restriction shall not extend so far as to prevent the removal of property imported into any State to any other State, of which the owner is an inhabitant; provided also, that no imposition, duties, or restriction shall be laid by any State on the property of the United States, or either of them. If any person guilty of or charged with treason, felony, or other high misdemeanor in any State, shall flee from justice and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offence. Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State. ART. 5. For the more convenient management of the general interests of the United States, delegates shall be annually appointed, in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the year. No State shall be represented in Congress by less than two nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or any other for his benefit, receives any salary, fees, or emolument of any kind. Each State shall maintain its own delegates in any meeting of the States, and while they act as members of the committee of the States. In determining questions in the United States in Congress assembled, each State shall have one vote. Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress; and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from and attendance on Congress, except for treason, felony, or breach of the peace. ART. 6. No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with any king, prince, or state; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility. No two or more States shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue. No State shall lay any imposts or duties, which may interfere with any stipulations in treaties entered into by the United States in Congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the courts of France and Spain. No vessels of war shall be kept up in time of peace by any State, except such number only as shall be deemed necessary by the United States in Congress assembled for the defence of such State or its trade; nor shall any body of forces be kept up by any State, in time of peace, except such number only as, in the judgment of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and have constantly ready for use, in public stores, a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage. No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies or shall have certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any State grant commission to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the kingdom or state and the subjects thereof against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise. ART. 7. When land forces are raised by any State for the common defence, all officers of or under the rank of colonel shall be appointed by the legislatures of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct; and all vacancies shall be filled up by the State which first made the appointment. ART. 8. All charges of war and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in Congress assembled shall from time to time direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States, within the time agreed upon by the United States in Congress assembled. ART. 9. The United States in Congress assembled shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article; of sending and receiving ambassadors; entering into treaties and alliances, provided that no treaty of commerce shall be made, whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever; of establishing rules for deciding in all cases what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated; of granting letters of marque and reprisal in time of peace; appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed judge of any of the said courts. The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever, which authority shall always be exercised in the manner following: whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress, stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent commissioners or judges to constitute a court for hearing and determining the matter in question; but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons which Congress shall judge sufficient, or, being present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the Secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive, the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress, for the security of the parties concerned: provided, that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the Supreme or Superior Court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question, according to the best of his judgment, without favor, affection, or hope of reward"; provided, also, that no State shall be deprived of territory for the benefit of the United States. All controversies concerning the private right of soil, claimed under different grants of two or more States, whose jurisdictions as they may respect such lands and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States. The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States; fixing the standard of weights and measures throughout the United States; regulating the trade and managing all affairs with the Indians not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated; establishing and regulating post-offices from one State to another throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office; appointing all officers of the naval forces, and commissioning all officers whatever in the service of the United States; making rules for the government and regulation of the said land and naval forces, and directing their operations. The United States in Congress assembled shall have authority to appoint a committee to sit in the recess of Congress, to be denominated "a Committee of the States," and to consist of one delegate from each State, and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States, under their direction; to appoint one of their number to preside, provided that no person be allowed to serve in the office of President more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses; to borrow money or emit bills on the credit of the United States, transmitting every half-year to the respective States an account of the sums of money so borrowed or emitted; to build and equip a navy; to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldierlike manner, at the expense of the United States; and the officers and men to be clothed, armed, and equipped shall march to the place appointed, and within the time agreed on, by the United States in Congress assembled: but if the United States in Congress assembled shall, on consideration of circumstances, judge proper that any State should not raise men or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such State, unless the legislature of such State shall judge that such extra number cannot be safely spared out of the same, in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared. And the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on, by the United States in Congress assembled. The United States in Congress assembled shall never engage in a war nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them; nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same; nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States in Congress assembled. The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each State on any question shall be entered on the journal, when it is desired by any delegate; and the delegates of a State, or any of them, at his or their request, shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the legislatures of the several States. ART. 10. The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of nine States, shall, from time to time, think expedient to vest them with; provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled is requisite. ART. 11. Canada, acceding to this Confederation, and joining in the measures of the United States, shall be admitted into and entitled to all the advantages of this Union; but no other Colony shall be admitted into the same unless such admission be agreed to by nine States. ART. 12. All bills of credit emitted, moneys borrowed, and debts contracted by or under the authority of Congress, before the assembling of the United States, in pursuance of the present Confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged. ART. 13. Every State shall abide by the determinations of the United States in Congress assembled on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State. These Articles shall be proposed to the legislatures of all the United States, to be considered, and if approved of by them, they are advised to authorize their delegates to ratify the same in the Congress of the United States; which being done, the same shall become conclusive. * * * * * MEMBERS OF THE CONVENTION WHICH FORMED THE CONSTITUTION.[457] Those with numbers before their names signed the Constitution. Those without numbers attended, but did not sign. The dates denote the first day of their attendance. Those in italics never attended. NEW HAMPSHIRE. 1. John Langdon, 23 July. _John Pickering._ 2. Nicholas Gilman, 23 July. _Benjamin West._ MASSACHUSETTS. _Francis Dana._ Elbridge Gerry, 29 May. 3. Nathaniel Gorham, 28 May. 4. Rufus King, 25 May. Caleb Strong, 28 May. RHODE ISLAND. [No appointment.] CONNECTICUT. 5. William S. Johnson, 2 June. 6. Roger Sherman, 30 May. Oliver Ellsworth, 29 May. NEW YORK. Robert Yates, 25 May. 7. Alexander Hamilton, 25 May. John Lansing, 2 June. NEW JERSEY. 8. William Livingston, 5 June. 9. David Brearley, 25 May. William C. Houston, 25 May. 10. William Patterson, 25 May. _John Neilson._ _Abraham Clark._ 11. Jonathan Dayton, 21 June. PENNSYLVANIA. 12. Benjamin Franklin, 28 May. 13. Thomas Mifflin, 28 May. 14. Robert Morris, 25 May. 15. George Clymer, 28 May. 16. Thomas Fitzsimons, 25 May. 17. Jared Ingersoll, 28 May. 18. James Wilson, 25 May. 19. Gouverneur Morris, 25 May. DELAWARE. 20. George Read, 25 May. 21. Gunning Bedford, Jr. 28 May. 22. John Dickinson, 28 May. 23. Richard Bassett, 25 May. 24. Jacob Broom, 25 May. MARYLAND. 25. James McHenry, 29 May. 26. Daniel of St. Thomas Jenifer, 2 June. 27. Daniel Carroll, 9 July. John Francis Mercer, 6 Aug. Luther Martin, 9 June. VIRGINIA. 28. George Washington, 25 May. _Patrick Henry_ (declined). Edmund Randolph, 25 May. 29. John Blair, 25 May. 30. James Madison, Jr. 25 May. George Mason, 25 May. George Wythe, 25 May. James McClurg (in the room of P. Henry) 25 May. NORTH CAROLINA. _Richard Caswell_ (resigned). Alexander Martin, 25 May. William R. Davie, 25 May. 31. William Blount (in the room of R. Caswell) 20 June. _Willie Jones_ (declined). 32. Richard D. Spaight, 25 May. 33. Hugh Williamson (in the room of W. Jones), 25 May. SOUTH CAROLINA. 34. John Rutledge, 25 May. 35. Charles C. Pinckney, 25 May. 36. Charles Pinckney, 25 May. 37. Pierce Butler, 25 May. GEORGIA. 38. William Few, 25 May. 39. Abraham Baldwin, 11 June. William Pierce, 31 May. _George Walton._ William Houstoun, 1 June. _Nathaniel Pendleton._ FOOTNOTE: [457] This Table is taken from the 12th volume of Mr. Sparks's edition of Washington's Writings, p. 426. END OF VOL. I. * * * * * Transcriber's Notes: Obvious typos and punctuation errors repaired. Period spellings and grammatical uses retained. On rejoining "co-" and "pre-" with "o" and "e" roots at the ends of lines, a diaresis was added to the second "o" or "e" per author practice (for example: coöperation, preëminent). Semicolons were consistently placed outside closing quotes in the original; retained. P. 78, Footnote #97: The form included blank spaces, represented here as underlines. P. 175, Footnote #179: Amount in the original was shown as $1,545,818 followed by 30/90 in fraction form; represented here as "$1,545,818 and 30/90." P. 218, Marker for footnote #200 beginning on this page was missing. I have placed it at the end of the paragraph: "disciplining the militia." P. 431, Marker for footnote #417 beginning on this page was missing. I have placed it at the end of the paragraph: "be for ever directed." P. 489, Dupicate "APPENDIX" heading removed. 
39711	----	Transcriber's Note: Inconsistent hyphenation and spelling in the original document have been preserved. Obvious typographical errors have been corrected. Italic text is denoted by _underscores_ and bold text by =equal signs=. EVERYMAN'S LIBRARY EDITED BY ERNEST RHYS HISTORY HALLAM'S CONSTITUTIONAL HISTORY WITH AN INTRODUCTION BY PROFESSOR J. H. MORGAN VOLUME ONE THE PUBLISHERS OF _EVERYMAN'S LIBRARY_ WILL BE PLEASED TO SEND FREELY TO ALL APPLICANTS A LIST OF THE PUBLISHED AND PROJECTED VOLUMES TO BE COMPRISED UNDER THE FOLLOWING THIRTEEN HEADINGS: TRAVEL SCIENCE FICTION THEOLOGY & PHILOSOPHY HISTORY CLASSICAL FOR YOUNG PEOPLE ESSAYS ORATORY POETRY & DRAMA BIOGRAPHY REFERENCE ROMANCE IN FOUR STYLES OF BINDING: CLOTH, FLAT BACK, COLOURED TOP; LEATHER, ROUND CORNERS, GILT TOP; LIBRARY BINDING IN CLOTH, & QUARTER PIGSKIN LONDON: J. M. DENT & SONS, LTD. NEW YORK: E. P. DUTTON & CO. CONSIDER HISTORY WITH THE BEGINNINGS OF IT STRETCHING DIMLY INTO THE REMOTE TIME; EMERGING DARKLY OVT OF THE MYSTERIOVS ETERNITY: THE TRVE EPIC POEM AND VNIVERSAL DIVINE SCRIPTVRE. CARLYLE CONSTITUTIONAL HISTORY of ENGLAND HENRY VII TO GEORGE II BY HENRY HALLAM VOL I LONDON: PUBLISHED by J·M·DENT·&·SONS·LTD AND IN NEW YORK BY E·P·DUTTON & CO INTRODUCTION Few historical works have stood the test of time better than Hallam's _Constitutional History_. It was written nearly a century ago--the first edition was published in 1827--and at a time when historians were nothing if not stout party men. The science of history, as we now know it, was in its infancy; apologetics were preferred to exegesis; the study of "sources," the editing of texts, the classification of authorities were almost unknown. History was regarded as the handmaid of politics, and the duty of the historian was conceived as being, in the language of Macaulay, the impression of "general truths" upon his generation as to the art of government and the progress of society. Whig and Tory, Erastian and High Churchman, debated on the field of history. The characters of Laud and Cromwell excited as much passion and recrimination as if they were contemporary politicians. That a history written in such times, and by a writer who was proud to call himself a Whig, should still hold its place is not a little remarkable. The reason for its vitality is to be found in the temperament and training of the author. Hallam was a lawyer in the sense in which that term is used at the Bar; that is to say, not so much a seductive advocate as a man deeply versed in the law, accurate, judicious, and impartial. Macaulay, who was as much the advocate as Hallam is the judge, described the _Constitutional History_ as "the most impartial book we ever read," and the tribute was not undeserved. Hallam is often didactic, but he is never partisan. Although a Whig he was by no means concerned, like Macaulay, to prove that the Whigs were never in the wrong, and, as he shrewdly remarks, in his examination of the tenets of the two great parties in the eighteenth century: "It is one thing to prefer the Whig principles, another to justify, as an advocate, the party which bore that name." No better illustration of his attitude of mind can be found than the passage in which, treating of the outbreak of hostilities between Charles I. and the Long Parliament, he sets himself to consider "whether _a thoroughly upright and enlightened man_ would rather have listed under the royal or the parliamentary standard." In these days when, as the distinguished occupant of the chair of Modern History at Cambridge tells us, "history has nothing to do with morality," Hallam's grave anxiety to solve this problem may sound quaint and, indeed, irrelevant; but there is no denying the high purpose, the sincerity, and the passion for truth which characterise the passage in question. To-day the historian's conception of truth is purely objective: his aim is to discover what former generations thought rather than to concern himself with what we should think of them. The late Lord Acton[1] stood almost alone among the modern school of historians in insisting that it is the duty of the historian to uphold "the authority of conscience" and "that moral standard which the powers of earth and religion itself tend constantly to depress." It is more fashionable to contend that the moral standard is relative; that we cannot judge the men of the past by the ethical rules of the present; that conscience itself is the product of historical development. It may be questioned whether this scepticism has not been carried too far. Hallam had no such doubts. For him "the thoroughly upright and enlightened man" of the seventeenth century was not intrinsically different from the thoroughly upright and enlightened man of the nineteenth; the one concession he makes to time is that the historian is probably in a better, not a worse, position to judge than the men of whom he writes--if only because he is more detached. He condemns the obsequiousness of Cranmer, the bigotry of Laud, the tortuousness of Charles I., the ambition of Strafford, with the same reprobation as he would have extended to similar obliquities in a contemporary. Unless we are to exclude conduct altogether from our consideration and to deny the personal factor in history, we shall find it hard to say he is wrong. Gardiner, the latest historian of the Stuarts, does not hesitate to pronounce similar judgments, though he expresses himself more mildly. Sorel, perhaps the most illustrious of the modern school of French historians and a scholar who spent his life among the archives, has not hesitated--in writing on the Partition of Poland--to speak of the Nemesis which always waits upon such "public crimes." Hallam's predilection for moral judgments is the more intelligible if we remember that his conception of "constitutional" history is somewhat wider than ours is to-day. He included in it much that would now be called "political" history. One has only to compare his work with the latest of our authorities--the posthumous book of F. W. Maitland--to realise how the term has become specialised. Maitland confines his treatment to the results of political action as they are represented in the growth of institutions; with political action itself he is, unlike Hallam, not concerned. The rise and fall of parties, the issues of Parliamentary debate, the progress of political speculation interest him but little and disturb him not at all. But to Hallam these things were hardly less important than the statute book and the law reports. This liberal view of his subject is not a thing to be regretted. It enables the reader to appreciate the large part played in the development of the English constitution by those "conventions" which are a gloss upon the law and without which the constitution itself is unintelligible. As Bagehot has pointed out, the legal powers of the king are as large as his actual authority is small. In strict legal theory the cabinet is merely an informal group of ministers of the crown who hold office during the king's pleasure. In fact and in practice it is a committee of the House of Commons dependent upon the support of the majority of the members. The fact is the outcome of a conventional modification of the theory, and this convention is due to the political changes of the eighteenth century and the growth of the party system. In the pages of Hallam these changes receive their due recognition, and without it the development of the English constitution is unintelligible. It was a favourite doctrine of Hallam that so far as the law was concerned the constitution was developed very early and that all that later generations contributed to it was better administration of the law and a more vigilant public opinion. He even goes so far as to say in his chapter in the _Middle Ages_ that he doubts "whether there are any essential privileges of our countrymen, any fundamental securities against arbitrary power, so far as they depend upon positive institutions, which may not be traced to the time of the Plantagenets." This is something of an anachronism, but it represents a not unjustifiable reaction against the high prerogative doctrines of writers of his own day. What Hallam, however, was really concerned to prove was that constitutional law in this country rests upon the common law--upon the rules laid down by mediæval judges as to the right of the subject to trial by jury, his immunity from arbitrary arrest, his claim not to be arbitrarily dispossessed of his property, and his right of action against the servants of the crown when he has suffered wrong. In this conception Hallam was undoubtedly right, and he urged it at a time when no one had made it as familiar as it has now become in the classic pages of Professor Dicey. But Hallam was perfectly well aware that these securities for the liberty of the subject were often abused, that the sheriffs who empanelled the jury were often corrupt and the judges who directed it were not infrequently servile; also that so long as the Star Chamber existed no jury could venture to give a verdict of "not guilty" in a prosecution by the crown without running the risk of being heavily punished. He is not insensible to these abuses and to the length of time it took to correct them, as the reader of the following pages will discover for himself, and he attaches due weight to the constitutional importance of the Act for the Abolition of the Star Chamber. But the truth of his main contention (as expressed in his chapter on "The English Constitution" in an earlier work[2]), that what chiefly distinguished our constitution from that of other countries was the "security for personal freedom and property" enjoyed by the subject, is undeniable. It was not so much the possession of representative institutions as the enjoyment of equal rights at common law that constituted the Englishman's advantage. Maitland[3] has recently pointed this out in language almost identical with that of Hallam when he insists that "Parliaments" or "Estates" were in no way peculiar to England; every country in Western Europe possessed them in the Middle Ages, but what those countries did not possess was a great school of law like the Inns of Court determined to uphold at all costs the claims of the customary law of the nation against the despotic doctrines of the civil law of Rome. Hallam's attitude towards the constitution was that of Burke--he regarded it with a veneration little short of superstition. He has expressed himself in his earlier works in words which can hardly fail to provoke a smile to-day:-- "No unbiassed observer, who derives pleasure from the welfare of his species, can fail to consider the long and uninterruptedly increasing prosperity of England as the most beautiful phenomenon in the history of mankind. Climates more propitious may impart more largely the mere enjoyments of existence; but in no other region have the benefits that political institutions can confer been diffused over so extended a population; nor have any people so well reconciled the discordant elements of wealth, order, and liberty. These advantages are surely not owing to the soil of this island, nor to the latitude in which it is placed; but to the spirit of its laws, from which, through various means, the characteristic independence and industriousness of our nation have been derived. The constitution, therefore, of England must be to inquisitive men of all countries, far more to ourselves, an object of superior interest; distinguished especially as it is from all free governments of powerful nations which history has recorded by its manifesting, after the lapse of several centuries, not merely no symptom of irretrievable decay, but a more expansive energy."[4] If his language seems extravagant, I may remind the reader that there would have been few in Hallam's day who were prepared to dispute it. England, almost alone among the states of Europe, had escaped the infection of the French Revolution. Its constitution had survived the shock of a movement which, as De Tocqueville has remarked, was as widely destructive of the old order in Europe as the Reformation itself. The result was to give the English constitution such a prestige as it had not enjoyed since the days of Montesquieu. A school of thinkers, beginning with Guizot and hardly terminating with Gneist, grew up on the continent who made it their duty to follow Burke's advice and "study the British constitution" as the last word in political wisdom. Hallam's complacency may be naive in its expression, but its sentiment is sound, and Englishmen should be the last to disclaim it. Upon this rock many a political church has been built; the "law and custom of our Parliament" have, since he wrote, been studied in every university in Europe and adopted in almost all the legislatures of the civilised world. Hallam, like Thucydides, with whom in dignity and sententiousness he may not unjustly be compared, had a noble pride in the constitution of his country. J. H. MORGAN. FOOTNOTES: [1] Cf. _Historical Essays and Studies_, vol. ii. p. 505. [2] _Europe during the Middle Ages_, Chapter VIII. Part 3. I may remind the reader that Hallam regarded his _Constitutional History_ as a continuation of this chapter, which sketches the development of the constitution from the earliest times down to the accession of Henry VII., the point at which the present work begins. [3] _English Law at the Renaissance_, p. 27. [4] _Middle Ages_ (12th ed.), ii. p. 267. BIBLIOGRAPHY A View of the State of Europe during the Middle Ages, 1818; 2nd edition, 1819; passed through twelve editions before 1855; revised and corrected, 1868; adapted to the use of students by W. Smith, 1871; edited by A. Murray, 1872; translated into Italian by G. Carraro and published at Firenze, 1874; Supplemental Notes to View of the State of Europe, 1848. The Constitutional History of England from the Accession of Henry VIII. to Death of George II., 1827; translated into German by F. A. Rüder and published at Leipzig, 1828; translated into French by M. Guizot and published in Paris, 1832; passed through eight editions before 1855; adapted to the use of students by W. Smith, 1872. Edited (with preface and memoir of his son) Remains in Verse and Prose of A. H. Hallam, 1834, 1863. The Introduction to the Literature of Europe during the 15th, 16th, and 17th Centuries, 1837-1839; 2nd edition, 1843; other editions, 1854, 1855, 1881. Contributed to J. C. Hare's Vindication of Luther against his recent English assailants (2nd edition, enlarged), 1855. A Short Life and Criticism of Henry Hallam appears in F. A. M. Mignet's _Eloges Historiques_, published in Paris in 1864. TO HENRY MARQUIS OF LANSDOWNE IN TOKEN OF HIGH ESTEEM AND SINCERE REGARD THIS WORK IS RESPECTFULLY INSCRIBED BY THE AUTHOR CONTENTS CHAPTER I ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY Ancient Government of England--Limitations of Royal Authority--Difference in the Effective Operation of these--Sketch of the State of Society and Law--Henry VII.--Statute for the Security of the Subject under a King _de facto_--Statute of Fines--Discussion of its Effect and Motive--Exactions of Money under Henry VII.--Taxes demanded by Henry VIII.--Illegal Exactions of Wolsey in 1523 and 1525--Acts of Parliament releasing the King from his Debts--A Benevolence again exacted--Oppressive Treatment of Reed--Severe and unjust Executions for Treason--Earl of Warwick--Earl of Suffolk--Duke of Buckingham--New Treasons created by Statute--Executions of Fisher and More--Cromwell --Duke of Norfolk--Anne Boleyn--Fresh Statutes enacting the Penalties of Treason--Act giving Proclamations the Force of Law--Government of Edward VI.'s Counsellors--Attainder of Lord Seymour and Duke of Somerset--Violence of Mary's Reign--The House of Commons recovers part of its independent Power in these two Reigns--Attempt of the Court to strengthen itself by creating new Boroughs--Causes of the High Prerogative of the Tudors--Jurisdiction of the Council of Star-Chamber--This not the same with the Court erected by Henry VII.--Influence of the Authority of the Star-Chamber in enhancing the Royal Power--Tendency of religious Disputes to the same End Page 7 CHAPTER II ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI., AND MARY State of public Opinion as to Religion--Henry VIII.'s Controversy with Luther--His Divorce from Catherine --Separation from the Church of Rome--Dissolution of Monasteries--Progress of the Reformed Doctrine in England--Its Establishment under Edward--Sketch of the chief Points of Difference between the two Religions--Opposition made by Part of the Nation--Cranmer--His Moderation in introducing Changes not acceptable to the Zealots--Mary --Persecution under her--Its Effect rather favourable to Protestantism Page 58 CHAPTER III ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE ROMAN CATHOLICS Change of Religion on the Queen's Accession--Acts of Supremacy and Uniformity--Restraint of Roman Catholic Worship in the first Years of Elizabeth--Statute of 1562--Speech of Lord Montague against it--This Act not fully enforced--Application of the Emperor in behalf of the English Catholics--Persecution of this Body in the ensuing Period--Uncertain Succession of the Crown between the Families of Scotland and Suffolk--The Queen's Unwillingness to decide this, or to marry--Imprisonment of Lady Catherine Grey--Mary Queen of Scotland--Combination in her Favour--Bull of Pius V.--Statutes for the Queen's Security--Catholics more rigorously treated--Refugees in the Netherlands--Their Hostility to the Government--Fresh Laws against the Catholic Worship--Execution of Campion and others--Defence of the Queen by Burleigh--Increased Severity of the Government--Mary--Plot in her Favour--Her Execution--Remarks upon it--Continued Persecution of Roman Catholics--General Observations Page 105 CHAPTER IV ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT NONCONFORMISTS Origin of the Differences among the English Protestants --Religious Inclinations of the Queen--Unwillingness of many to comply with the established Ceremonies--Conformity enforced by the Archbishop--Against the Disposition of others--A more determined Opposition, about 1570, led by Cartwright--Dangerous Nature of his Tenets--Puritans supported in the Commons--and in some Measure by the Council--Prophesyings--Archbishops Grindal and Whitgift --Conduct of the latter in enforcing Conformity--High Commission Court--Lord Burleigh averse to Severity--Puritan Libels--Attempt to set up a Presbyterian System--House of Commons averse to episcopal Authority--Independents liable to severe Laws--Hooker's _Ecclesiastical Polity_--Its Character--Spoliation of Church Revenues--General Remarks--Letter of Walsingham in Defence of the Queen's Government Page 162 CHAPTER V ON THE CIVIL GOVERNMENT OF ELIZABETH General Remarks--Defective Security of the Subject's Liberty--Trials for Treason and other Political Offences unjustly conducted--Illegal Commitments--Remonstrance of Judges against them--Proclamations unwarranted by Law--Restrictions on Printing--Martial Law--Loans of Money not quite voluntary--Character of Lord Burleigh's Administration--Disposition of the House of Commons --Addresses concerning the Succession--Difference on this between the Queen and Commons in 1566--Session of 1571--Influence of the Puritans in Parliament--Speech of Mr. Wentworth in 1576--The Commons continue to seek Redress of ecclesiastical Grievances--Also of Monopolies, especially in the Session of 1601--Influence of the Crown in Parliament --Debate on Election of non-resident Burgesses--Assertion of Privileges by Commons--Case of Ferrers, under Henry VIII.--Other Cases of Privilege--Privilege of determining Contested Elections claimed by the House--The English Constitution not admitted to be an absolute Monarchy--Pretensions of the Crown Page 215 CHAPTER VI ON THE ENGLISH CONSTITUTION UNDER JAMES I. Quiet Accession of James--Question of his Title to the Crown--Legitimacy of the Earl of Hertford's Issue--Early Unpopularity of the King--Conduct towards the Puritans --Parliament convoked by an irregular Proclamation--Question of Fortescue and Goodwin's Election--Shirley's Case of Privilege--Complaints of Grievances--Commons' Vindication of themselves--Session of 1605--Union with Scotland debated--Continual Bickerings between the Crown and Commons--Impositions on Merchandise without Consent of Parliament--Remonstrances against these in Session of 1610--Doctrine of King's absolute Power inculcated by Clergy--Articuli Cleri--Cowell's Interpreter--Renewed Complaints of the Commons--Negotiation for giving up the Feudal Revenue--Dissolution of Parliament--Character of James--Death of Lord Salisbury--Foreign Politics of the Government--Lord Coke's Alienation from the Court--Illegal Proclamations--Means resorted to in order to avoid the Meeting of Parliament--Parliament of 1614--Undertakers--It is dissolved without passing a single Act--Benevolences --Prosecution of Peacham--Dispute about the Jurisdiction of the Court of Chancery--Case of Commendams--Arbitrary Proceedings in Star-Chamber--Arabella Stuart--Somerset and Overbury--Sir Walter Raleigh--Parliament of 1621 --Proceedings against Mompesson and Lord Bacon--Violence in the Case of Floyd--Disagreement between the King and Commons--Their Dissolution, after a strong Remonstrance --Marriage-Treaty with Spain--Parliament of 1624 --Impeachment of Middlesex Page 266 CHAPTER VII ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF CHARLES I. TO THE DISSOLUTION OF HIS THIRD PARLIAMENT Parliament of 1625--Its Dissolution--Another Parliament called--Prosecution of Buckingham--Arbitrary Proceedings towards the Earls of Arundel and Bristol--Loan demanded by the King--Several committed for Refusal to contribute--They sue for a Habeas Corpus--Arguments on this Question, which is decided against them--A Parliament called in 1628--Petition of Right--King's Reluctance to grant it--Tonnage and Poundage disputed--King dissolves Parliament--Religious Differences--Prosecution of Puritans by Bancroft--Growth of High-Church Tenets--Differences as to the Observance of Sunday--Arminian Controversy--State Catholics under James--Jealousy of the Court's Favour towards them--Unconstitutional Tenets promulgated by the High-Church Party--General Remarks Page 347 PREFACE The origin and progress of the English Constitution, down to the extinction of the house of Plantagenet, formed a considerable portion of a work published by me some years since, on the history, and especially the laws and institutions, of Europe during the period of the middle ages. It had been my first intention to have prosecuted that undertaking in a general continuation; and when experience taught me to abandon a scheme projected early in life with very inadequate views of its magnitude, I still determined to carry forward the constitutional history of my own country, as both the most important to ourselves, and, in many respects, the most congenial to my own studies and habits of mind. The title which I have adopted, appears to exclude all matter not referable to the state of government, or what is loosely denominated the constitution. I have, therefore, generally abstained from mentioning, except cursorily, either military or political transactions, which do not seem to bear on this primary subject. It must, however, be evident, that the constitutional and general history of England, at some periods, nearly coincide; and I presume that a few occasional deviations of this nature will not be deemed unpardonable, especially where they tend, at least indirectly, to illustrate the main topic of enquiry. Nor will the reader, perhaps, be of opinion that I have forgotten my theme in those parts of the following work which relate to the establishment of the English church, and to the proceedings of the state with respect to those who have dissented from it; facts certainly belonging to the history of our constitution, in the large sense of the word, and most important in their application to modern times, for which all knowledge of the past is principally valuable. Still less apology can be required for a slight verbal inconsistency with the title of these volumes in the addition of two supplemental chapters on Scotland and Ireland. This indeed I mention less to obviate a criticism, which possibly might not be suggested, than to express my regret that, on account of their brevity, if for no other reasons, they are both so disproportionate to the interest and importance of their subjects. During the years that, amidst avocations of different kinds, have been occupied in the composition of this work, several others have been given to the world, and have attracted considerable attention, relating particularly to the periods of the Reformation and of the civil wars. It seems necessary to mention that I have read none of these, till after I had written such of the following pages as treat of the same subjects. The three first chapters indeed were finished in 1820, before the appearance of those publications which have led to so much controversy, as to the ecclesiastical history of the sixteenth century; and I was equally unacquainted with Mr. Brodie's _History of the British Empire from the Accession of Charles I. to the Restoration_, while engaged myself on that period. I have, however, on a revision of the present work, availed myself of the valuable labours of recent authors, especially Dr. Lingard and Mr. Brodie; and in several of my notes I have sometimes supported myself by their authority, sometimes taken the liberty to express my dissent; but I have seldom thought it necessary to make more than a few verbal modifications in my text. It would, perhaps, not become me to offer any observations on these contemporaries; but I cannot refrain from bearing testimony to the work of a distinguished foreigner, M. Guizot, _Histoire de la Revolution d'Angleterre, depuis l'Avenement de Charles I. jusqu'à la Chute de Jacques II._, the first volume of which was published in 1826. The extensive knowledge of M. Guizot, and his remarkable impartiality, have already been displayed in his collection of memoirs illustrating that part of English history; and I am much disposed to believe that if the rest of his present undertaking shall be completed in as satisfactory a manner as the first volume, he will be entitled to the preference above any one, perhaps, of our native writers, as a guide through the great period of the seventeenth century. In terminating the _Constitutional History of England_ at the accession of George III., I have been influenced by unwillingness to excite the prejudices of modern politics, especially those connected with personal character, which extend back through at least a large portion of that reign. It is indeed vain to expect that any comprehensive account of the two preceding centuries can be given without risking the disapprobation of those parties, religious or political, which originated during that period; but as I shall hardly incur the imputation of being the blind zealot of any of these, I have little to fear, in this respect, from the dispassionate public, whose favour, both in this country and on the Continent, has been bestowed on my former work, with a liberality less due to any literary merit it may possess, than to a regard for truth, which will, I trust, be found equally characteristic of the present. _June 1827._ ADVERTISEMENT TO THE THIRD EDITION The present edition has been revised, and some use made of recent publications. The note on the authenticity of the Icon Basilice, at the end of the second volume of the two former editions, has been withdrawn; not from the slightest doubt in the author's mind as to the correctness of its argument; but because a discussion of a point of literary criticism, as this ought to be considered, seemed rather out of its place in the _Constitutional History of England_. _April 1832._ LIST OF AUTHORITIES _The following Editions have been used for the References in these Volumes_ _Statutes at Large_, by Ruffhead, except where the late edition of _Statutes of the Realm_ is expressly quoted. _State Trials_, by Howell. Rymer's _Foedera_, London, 20 vols. The paging of this edition is preserved in the margin of the Hague edition in 10 vols. _Parliamentary History_, new edition. Burnet's _History of the Reformation_, 3 vols. folio, 1681. Strype's _Ecclesiastical Memorials_, _Annals of Reformation_, and Lives of Archbishops Cranmer, Parker, Grindal, and Whitgift, folio. The paging of these editions is preserved in those lately published in 8vo. Hall's _Chronicles of England_. Holingshed's _Chronicles of England, Scotland, and Ireland_. The edition in 4to published in 1808. _Somers Tracts_, by Walter Scott, 13 vols. 4to. _Harleian Miscellany_, 8 vols. 4to. Neal's _History of the Puritans_, 2 vols. 4to. Bacon's Works, by Mallet, 3 vols. folio, 1753. Kennet's _Complete History of England_, 3 vols. folio, 1719. Wood's _History of University of Oxford_, by Gutch, 4 vols. 4to. Lingard's _History of England_, 10 vols. 8vo. Butler's _Memoirs of English Catholics_, 4 vols. 1819. Harris's _Lives of James I., Charles I., Cromwell, and Charles II._, 5 vols. 1814. Clarendon's _History of the Rebellion_, 8 vols. 8vo. Oxford, 1826. It is to be regretted that the editor has not preserved the paging of the folio in his margin, which is of great convenience in a book so frequently referred to; and still more so, that he has not thought the true text worthy of a better place than the bottom of the page, leaving to the spurious readings the post of honour. Clarendon's _Life_, folio. _Rushworth Abridged_, 6 vols. 8vo. 1703. This edition contains many additions from works published since the folio edition in 1680. Whitelock's _Memorials_, 1732. _Memoirs of Col. Hutchinson_, 4to. 1806. May's _History of the Parliament_, 4to. 1812. Baxter's _Life_, folio. Rapin's _History of England_, 3 vols. folio, 1732. Burnet's _History of his own Times_, 2 vols. folio. The paging of this edition is preserved in the margin of that printed at Oxford, 1823, which is sometimes quoted, and the text of which has always been followed. _Life of William Lord Russell_, by Lord John Russell, 4to. Temple's _Works_, 2 vols. folio, 1720. Coxe's _Life of Marlborough_, 3 vols. 4to. Coxe's _Memoirs of Sir Robert Walpole_, 3 vols. 4to. Robertson's _History of Scotland_, 2 vols. 8vo. 1794. Laing's _History of Scotland_, 4 vols. 8vo. Dalrymple's _Annals of Scotland_, 2 vols. 4to. Leland's _History of Ireland_, 3 vols. 4to. Spenser's _Account of State of Ireland_, in 8th volume of Todd's edition of Spenser's works. These are, I believe, almost all the works quoted in the following volumes, concerning which any uncertainty could arise from the mode of reference. CONSTITUTIONAL HISTORY OF ENGLAND FROM HENRY VII. TO GEORGE II. CHAPTER I ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY _Ancient government of England._--The government of England, in all times recorded by history, has been one of those mixed or limited monarchies which the Celtic and Gothic tribes appear universally to have established, in preference to the coarse despotism of eastern nations, to the more artificial tyranny of Rome and Constantinople, or to the various models of republican polity which were tried upon the coasts of the Mediterranean Sea. It bore the same general features, it belonged, as it were, to the same family, as the governments of almost every European state, though less resembling, perhaps, that of France than any other. But, in the course of many centuries, the boundaries which determined the sovereign's prerogative and the people's liberty or power having seldom been very accurately defined by law, or at least by such law as was deemed fundamental and unchangeable, the forms and principles of political regimen in these different nations became more divergent from each other, according to their peculiar dispositions, the revolutions they underwent, or the influence of personal character. England, more fortunate than the rest, had acquired in the fifteenth century a just reputation for the goodness of her laws and the security of her citizens from oppression. This liberty had been the slow fruit of ages, still waiting a happier season for its perfect ripeness, but already giving proof of the vigour and industry which had been employed in its culture. I have endeavoured, in a work of which this may in a certain degree be reckoned a continuation, to trace the leading events and causes of its progress. It will be sufficient in this place briefly to point out the principal circumstances in the polity of England at the accession of Henry VII. _Limitations of royal authority._--The essential checks upon the royal authority were five in number.--1. The king could levy no sort of new tax upon his people, except by the grant of his parliament, consisting as well of bishops and mitred abbots, or lords spiritual, and of hereditary peers or temporal lords, who sat and voted promiscuously in the same chamber, as of representatives from the freeholders of each county, and from the burgesses of many towns and less considerable places, forming the lower or commons' house. 2. The previous assent and authority of the same assembly was necessary for every new law, whether of a general or temporary nature. 3. No man could be committed to prison but by a legal warrant specifying his offence; and by an usage nearly tantamount to constitutional right, he must be speedily brought to trial by means of regular sessions of gaol-delivery. 4. The fact of guilt or innocence on a criminal charge was determined in a public court, and in the county where the offence was alleged to have occurred, by a jury of twelve men, from whose unanimous verdict no appeal could be made. Civil rights, so far as they depended on questions of fact, were subject to the same decision. 5. The officers and servants of the Crown, violating the personal liberty or other right of the subject, might be sued in an action for damages, to be assessed by a jury, or, in some cases, were liable to criminal process; nor could they plead any warrant or command in their justification, not even the direct order of the king. These securities, though it would be easy to prove that they were all recognised in law, differed much in the degree of their effective operation. It may be said of the first, that it was now completely established. After a long contention, the kings of England had desisted for near a hundred years from every attempt to impose taxes without consent of parliament; and their recent device of demanding benevolences, or half-compulsory gifts, though very oppressive, and on that account just abolished by an act of the late usurper, Richard, was in effect a recognition of the general principle, which it sought to elude rather than transgress. The necessary concurrence of the two houses of parliament in legislation, though it could not be more unequivocally established than the former, had in earlier times been more free from all attempt or pretext of encroachment. We know not of any laws that were ever enacted by our kings without the assent and advice of their great council; though it is justly doubted, whether the representatives of the ordinary freeholders, or of the boroughs, had seats and suffrages in that assembly during seven or eight reigns after the conquest. They were then, however, ingrafted upon it with plenary legislative authority; and if the sanction of a statute were required for this fundamental axiom, we might refer to one in the 15th of Edward II. (1322), which declares that "the matters to be established for the estate of the king and of his heirs, and for the estate of the realm and of the people, should be treated, accorded, and established in parliament, by the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm, according as had been before accustomed."[5] It may not be impertinent to remark in this place, that the opinion of such as have fancied the royal prerogative under the houses of Plantagenet and Tudor to have had no effectual or unquestioned limitations is decisively refuted by the notorious fact, that no alteration in the general laws of the realm was ever made, or attempted to be made, without the consent of parliament. It is not surprising that the council, in great exigency of money, should sometimes employ force to extort it from the merchants, or that servile lawyers should be found to vindicate these encroachments of power. Impositions, like other arbitrary measures, were particular and temporary, prompted by rapacity, and endured through compulsion. But if the kings of England had been supposed to enjoy an absolute authority, we should find some proofs of it in their exercise of the supreme function of sovereignty, the enactment of new laws. Yet there is not a single instance from the first dawn of our constitutional history, where a proclamation, or order of council, has dictated any change, however trifling, in the code of private rights, or in the penalties of criminal offences. Was it ever pretended that the king could empower his subjects to devise their freeholds, or to levy fines of their entailed lands? Has even the slightest regulation as to judicial procedure, or any permanent prohibition, even in fiscal law, been ever enforced without statute? There was, indeed, a period, later than that of Henry VII., when a control over the subject's free right of doing all things not unlawful was usurped by means of proclamations. These, however, were always temporary, and did not affect to alter the established law. But though it would be difficult to assert that none of this kind had ever been issued in rude and irregular times, I have not observed any under the kings of the Plantagenet name which evidently transgress the boundaries of their legal prerogative. The general privileges of the nation were far more secure than those of private men. Great violence was often used by the various officers of the Crown, for which no adequate redress could be procured; the courts of justice were not strong enough, whatever might be their temper, to chastise such aggressions; juries, through intimidation or ignorance, returned such verdicts as were desired by the Crown; and, in general, there was perhaps little effective restraint upon the government, except in the two articles of levying money and enacting laws. _State of society and law._--The peers alone, a small body varying from about fifty to eighty persons, enjoyed the privileges of aristocracy; which, except that of sitting in parliament, were not very considerable, far less oppressive. All below them, even their children, were commoners, and in the eye of the law equal to each other. In the gradation of ranks, which, if not regally recognised, must still subsist through the necessary inequalities of birth and wealth, we find the gentry or principal landholders, many of them distinguished by knighthood, and all by bearing coat armour, but without any exclusive privilege; the yeomanry, or small freeholders and farmers, a very numerous and respectable body, some occupying their own estates, some those of landlords; the burgesses and inferior inhabitants of trading towns; and, lastly, the peasantry and labourers. Of these, in earlier times, a considerable part, though not perhaps so very large a proportion as is usually taken for granted, had been in the ignominious state of villenage, incapable of possessing property but at the will of their lords. They had, however, gradually been raised above this servitude; many had acquired a stable possession of lands under the name of copyholders; and the condition of mere villenage was become rare. The three courts at Westminster--the King's Bench, Common Pleas, and Exchequer--consisting each of four or five judges, administered justice to the whole kingdom; the first having an appellant jurisdiction over the second, and the third being in a great measure confined to causes affecting the Crown's property. But as all suits relating to land, as well as some others, and all criminal indictments, could only be determined, so far as they depended upon oral evidence, by a jury of the county, it was necessary that justices of assize and gaol-delivery, being in general the judges of the courts at Westminster, should travel into each county, commonly twice a year, in order to try issues of fact, so called in distinction from issues of law, where the suitors, admitting all essential facts, disputed the rule applicable to them.[6] By this device, which is as ancient as the reign of Henry II., the fundamental privilege of trial by jury, and the convenience of private suitors, as well as accused persons, was made consistent with an uniform jurisprudence; and though the reference of every legal question, however insignificant, to the courts above must have been inconvenient and expensive in a still greater degree than at present, it had doubtless a powerful tendency to knit together the different parts of England, to check the influence of feudality and clanship, to make the inhabitants of distant counties better acquainted with the capital city and more accustomed to the course of government, and to impair the spirit of provincial patriotism and animosity. The minor tribunals of each county, hundred, and manor, respectable for their antiquity and for their effect in preserving a sense of freedom and justice, had in a great measure, though not probably so much as in modern times, gone into disuse. In a few counties there still remained a palatine jurisdiction, exclusive of the king's courts; but in these the common rules of law and the mode of trial by jury were preserved. Justices of the peace, appointed out of the gentlemen of each county, enquired into criminal charges, committed offenders to prison, and tried them at their quarterly sessions, according to the same forms as the judges of gaol-delivery. The chartered towns had their separate jurisdiction under the municipal magistracy. The laws against theft were severe, and capital punishments unsparingly inflicted. Yet they had little effect in repressing acts of violence, to which a rude and licentious state of manners, and very imperfect dispositions for preserving the public peace, naturally gave rise. These were frequently perpetrated or instigated by men of superior wealth and power, above the control of the mere officers of justice. Meanwhile the kingdom was increasing in opulence, the English merchants possessed a large share of the trade of the north; and a woollen manufacture, established in different parts of the kingdom, had not only enabled the legislature to restrain the import of cloths, but begun to supply foreign nations. The population may probably be reckoned, without any material error, at about three millions, but by no means distributed in the same proportions as at present; the northern counties, especially Lancashire and Cumberland, being very ill peopled, and the inhabitants of London and Westminster not exceeding sixty or seventy thousand.[7] Such was the political condition of England, when Henry Tudor, the only living representative of the house of Lancaster, though incapable, by reason of the illegitimacy of the ancestor who connected him with it, of asserting a just right of inheritance, became master of the throne by the defeat and death of his competitor at Bosworth, and by the general submission of the kingdom. He assumed the royal title immediately after his victory, and summoned a parliament to recognise or sanction his possession. The circumstances were by no means such as to offer an auspicious presage for the future. A subdued party had risen from the ground, incensed by proscription and elated by success; the late battle had in effect been a contest between one usurper and another; and England had little better prospect than a renewal of that desperate and interminable contention, which the pretences of hereditary right have so often entailed upon nations. A parliament called by a conqueror might be presumed to be itself conquered. Yet this assembly did not display so servile a temper, or so much of the Lancastrian spirit, as might be expected. It was "ordained and enacted by the assent of the Lords, and at the request of the Commons, that the inheritance of the crowns of England and France, and all dominions appertaining to them, should remain in Henry VII. and the heirs of his body for ever, and in none other."[8] Words studiously ambiguous, which, while they avoid the assertion of an hereditary right that the public voice repelled, were meant to create a parliamentary title, before which the pretensions of lineal descent were to give way. They seem to make Henry the stock of a new dynasty. But, lest the spectre of indefeasible right should stand once more in arms on the tomb of the house of York, the two houses of parliament showed an earnest desire for the king's marriage with the daughter of Edward IV., who, if she should bear only the name of royalty, might transmit an undisputed inheritance of its prerogatives to her posterity. _Statute for the security of the subject under a king_ de facto.--This marriage, and the king's great vigilance in guarding his crown, caused his reign to pass with considerable reputation, though not without disturbance. He had to learn by the extraordinary, though transient, success of two impostors (if the second may with certainty be reckoned such), that his subjects were still strongly infected with the prejudice which had once overthrown the family he claimed to represent. Nor could those who served him be exempt from apprehensions of a change of dynasty, which might convert them into attainted rebels. The state of the nobles and gentry had been intolerable during the alternate proscriptions of Henry VI. and Edward IV. Such apprehensions led to a very important statute in the eleventh year of this king's reign, intended, as far as law could furnish a prospective security against the violence and vengeance of factions, to place the civil duty of allegiance on a just and reasonable foundation, and indirectly to cut away the distinction between governments _de jure_ and _de facto_. It enacts, after reciting that subjects by reason of their allegiance are bound to serve their prince for the time being against every rebellion and power raised against him, that "no person attending upon the king and sovereign lord of this land for the time being, and doing him true and faithful service, shall be convicted of high treason, by act of parliament or other process of law, nor suffer any forfeiture or punishment; but that every act made contrary to this statute should be void and of no effect."[9] The endeavour to bind future parliaments was of course nugatory; but the statute remains an unquestionable authority for the constitutional maxim, that possession of the throne gives a sufficient title to the subject's allegiance, and justifies his resistance of those who may pretend to a better right. It was much resorted to in argument at the time of the revolution, and in the subsequent period.[10] It has been usual to speak of this reign as if it formed a great epoch in our constitution; the king having by his politic measures broken the power of the barons who had hitherto withstood the prerogative, while the commons had not yet risen from the humble station which they were supposed to have occupied. I doubt, however, whether the change was quite so precisely referable to the time of Henry VII., and whether his policy has not been somewhat over-rated. In certain respects, his reign is undoubtedly an æra in our history. It began in revolution and a change in the line of descent. It nearly coincides, which is more material, with the commencement of what is termed modern history, as distinguished from the middle ages, and with the memorable events that have led us to make that leading distinction, especially the consolidation of the great European monarchies, among which England took a conspicuous station. But, relatively to the main subject of our enquiry, it is not evident that Henry VII. carried the authority of the Crown much beyond the point at which Edward IV. had left it. The strength of the nobility had been grievously impaired by the bloodshed of the civil wars, and the attainders that followed them. From this cause, or from the general intimidation, we find, as I have observed in another place, that no laws favourable to public liberty, or remedial with respect to the aggressions of power, were enacted, or (so far as appears) even proposed in parliament, during the reign of Edward IV.; the first, since that of John, to which such a remark can be applied. The Commons, who had not always been so humble and abject as smatterers in history are apt to fancy, were by this time much degenerated from the spirit they had displayed under Edward III. and Richard II. Thus the founder of the line of Tudor came, not certainly to an absolute, but a vigorous prerogative, which his cautious dissembling temper and close attention to business were well calculated to extend. _Statute of Fines._--The laws of Henry VII. have been highly praised by Lord Bacon as "deep and not vulgar, not made upon the spur of a particular occasion for the present, but out of providence for the future, to make the estate of his people still more and more happy, after the manner of the legislators in ancient and heroical times." But when we consider how very few kings or statesmen have displayed this prospective wisdom and benevolence in legislation, we may hesitate a little to bestow so rare a praise upon Henry. Like the laws of all other times, his statutes seem to have had no further aim than to remove some immediate mischief, or to promote some particular end. One, however, has been much celebrated as an instance of his sagacious policy, and as the principal cause of exalting the royal authority upon the ruins of the aristocracy; I mean, the Statute of Fines (as one passed in the fourth year of his reign is commonly called), which is supposed to have given the power of alienating entailed lands. But both the intention and effect of this seem not to have been justly apprehended. In the first place it is remarkable that the statute of Henry VII. is merely a transcript, with very little variation, from one of Richard III., which is actually printed in most editions. It was re-enacted, as we must presume, in order to obviate any doubt, however ill-grounded, which might hang upon the validity of Richard's laws. Thus vanish at once into air the deep policy of Henry VII. and his insidious schemes of leading on a prodigal aristocracy to its ruin. It is surely strange that those who have extolled this sagacious monarch for breaking the fetters of landed property (though many of them were lawyers) should never have observed, that whatever credit might be due for the innovation should redound to the honour of the unfortunate usurper. But Richard, in truth, had no leisure for such long-sighted projects of strengthening a throne for his posterity which he could not preserve for himself. His law, and that of his successor, had a different object in view. It would be useless to some readers, and perhaps disgusting to others, especially in the very outset of this work, to enter upon the history of the English law as to the power of alienation. But I cannot explain the present subject without mentioning that, by a statute in the reign of Edward I, commonly called _de donis conditionalibus_, lands given to a man and the heirs of his body, with remainder to other persons, or reversion to the donor, could not be alienated by the possessor for the time being, either from his own issue, or from those who were to succeed them. Such lands were also incapable of forfeiture for treason or felony; and more, perhaps, upon this account than from any more enlarged principle, these entails were not viewed with favour by the courts of justice. Several attempts were successfully made to relax their strictness; and finally, in the reign of Edward IV., it was held by the judges in the famous case of Taltarum, that a tenant in tail might, by what is called suffering a common recovery, that is, by means of an imaginary process of law, divest all those who were to come after him of their succession, and become owner of the fee simple. Such a decision was certainly far beyond the sphere of judicial authority. The legislature, it was probably suspected, would not have consented to infringe a statute which they reckoned the safeguard of their families. The law, however, was laid down by the judges; and in those days the appellant jurisdiction of the House of Lords, by means of which the aristocracy might have indignantly reversed the insidious decision, had gone wholly into disuse. It became by degrees a fundamental principle, that an estate in tail can be barred by a common recovery; nor is it possible by any legal subtlety to deprive the tenant of this control over his estate. Schemes were indeed gradually devised, which to a limited extent have restrained the power of alienation; but these do not belong to our subject. The real intention of these statutes of Richard and Henry was not to give the tenant in tail a greater power over his estate (for it is by no means clear that the words enable him to bar his issue by levying a fine; and when a decision to that effect took place long afterwards (19 H. 8), it was with such difference of opinion that it was thought necessary to confirm the interpretation by a new act of parliament); but rather, by establishing a short term of prescription, to put a check on the suits for recovery of lands, which, after times of so much violence and disturbance, were naturally springing up in the courts. It is the usual policy of commonwealths to favour possession; and on this principle the statute enacts, that a fine levied with proclamations in a public court of justice shall after five years, except in particular circumstances, be a bar to all claims upon lands. This was its main scope; the liberty of alienation was neither necessary, nor probably intended to be given.[11] _Exactions of Henry VII._--The two first of the Tudors rarely experienced opposition but when they endeavoured to levy money. Taxation, in the eyes of their subjects, was so far from being no tyranny, that it seemed the only species worth a complaint. Henry VII. obtained from his first parliament a grant of tonnage and poundage during life, according to several precedents of former reigns. But when general subsidies were granted, the same people, who would have seen an innocent man led to prison or the scaffold with little attention, twice broke out into dangerous rebellions; and as these, however arising from such immediate discontent, were yet a good deal connected with the opinion of Henry's usurpation and the claims of a pretender, it was a necessary policy to avoid too frequent imposition of burdens upon the poorer classes of the community.[12] He had recourse accordingly to the system of benevolences, or contributions apparently voluntary, though in fact extorted from his richer subjects. These having become an intolerable grievance under Edward IV., were abolished in the only parliament of Richard III. with strong expressions of indignation. But in the seventh year of Henry's reign, when, after having with timid and parsimonious hesitation suffered the marriage of Anne of Brittany with Charles VIII., he was compelled by the national spirit to make a demonstration of war, he ventured to try this unfair and unconstitutional method of obtaining aid, which received afterwards too much of a parliamentary sanction, by an act enforcing the payment of arrears of money, which private men had thus been prevailed upon to promise.[13] The statute indeed of Richard is so expressed as not clearly to forbid the solicitation of voluntary gifts, which of course rendered it almost nugatory. Archbishop Morton is famous for the dilemma which he proposed to merchants and others, whom he solicited to contribute. He told those who lived handsomely, that their opulence was manifest by their rate of expenditure. Those, again, whose course of living was less sumptuous, must have grown rich by their economy. Either class could well afford assistance to their sovereign. This piece of logic, unanswerable in the mouth of a privy councillor, acquired the name of Morton's fork. Henry doubtless reaped great profit from these indefinite exactions, miscalled benevolences. But, insatiate of accumulating treasure, he discovered other methods of extortion, still more odious, and possibly more lucrative. Many statutes had been enacted in preceding reigns, sometimes rashly or from temporary motives, sometimes in opposition to prevailing usages which they could not restrain, of which the pecuniary penalties, though exceedingly severe, were so little enforced as to have lost their terror. These his ministers raked out from oblivion; and, prosecuting such as could afford to endure the law's severity, filled his treasury with the dishonourable produce of amercements and forfeitures. The feudal rights became, as indeed they always had been, instrumental to oppression. The lands of those who died without heirs fell back to the Crown by escheat. It was the duty of certain officers in every county to look after its rights. The king's title was to be found by the inquest of a jury, summoned at the instance of the escheator, and returned into the exchequer. It then became a matter of record, and could not be impeached. Hence the escheators taking hasty inquests, or sometimes falsely pretending them, defeated the right heir of his succession. Excessive fines were imposed on granting livery to the king's wards on their majority. Informations for intrusion, criminal indictments, outlawries on civil process, in short, the whole course of justice, furnished pretences for exacting money; while a host of dependents on the court, suborned to play their part as witnesses, or even as jurors, rendered it hardly possible for the most innocent to escape these penalties. Empson and Dudley are notorious as the prostitute instruments of Henry's avarice in the later and more unpopular years of his reign; but they dearly purchased a brief hour of favour by an ignominious death and perpetual infamy.[14] The avarice of Henry VII., as it rendered his government unpopular, which had always been penurious, must be deemed a drawback from the wisdom ascribed to him; though by his good fortune it answered the end of invigorating his power. By these fines and forfeitures he impoverished and intimidated the nobility. The Earl of Oxford compounded, by the payment of £15,000, for the penalties he had incurred by keeping retainers in livery; a practice mischievous and illegal, but too customary to have been punished before this reign. Even the king's clemency seems to have been influenced by the sordid motive of selling pardons; and it has been shown, that he made a profit of every office in his court, and received money for conferring bishoprics.[15] It is asserted by early writers, though perhaps only on conjecture, that he left a sum thus amassed, of no less than £1,800,000 at his decease. This treasure was soon dissipated by his successor, who had recourse to the assistance of parliament in the very first year of his reign. The foreign policy of Henry VIII., far unlike that of his father, was ambitious and enterprising. No former king had involved himself so frequently in the labyrinth of continental alliances. And, if it were necessary to abandon that neutrality which is generally the most advantageous and laudable course, it is certain that his early undertakings against France were more consonant to English interests, as well as more honourable, than the opposite policy, which he pursued after the battle of Pavia. The campaigns of Henry in France and Scotland displayed the valour of our English infantry, seldom called into action for fifty years before, and contributed with other circumstances to throw a lustre over his reign, which prevented most of his contemporaries from duly appreciating its character. But they naturally drew the king into heavy expenses, and, together with his profusion and love of magnificence, rendered his government very burthensome. At his accession, however, the rapacity of his father's administration had excited such universal discontent, that it was found expedient to conciliate the nation. An act was passed in his first parliament to correct the abuses that had prevailed in finding the king's title to lands by escheat.[16] The same parliament repealed a law of the late reign, enabling justices of assize and of the peace to determine all offences, except treason and felony, against any statute in force, without a jury, upon information in the king's name.[17] This serious innovation had evidently been prompted by the spirit of rapacity, which probably some honest juries had shown courage enough to withstand. It was a much less laudable concession to the vindictive temper of an injured people, seldom unwilling to see bad methods employed in punishing bad men, that Empson and Dudley, who might perhaps by stretching the prerogative have incurred the penalties of a misdemeanor, were put to death on a frivolous charge of high treason.[18] _Taxes demanded by Henry VIII._--The demands made by Henry VIII. on parliament were considerable both in frequency and amount. Notwithstanding the servility of those times, they sometimes attempted to make a stand against these inroads upon the public purse. Wolsey came into the House of Commons in 1523, and asked for £800,000, to be raised by a tax of one-fifth upon lands and goods, in order to prosecute the war just commenced against France. Sir Thomas More, then speaker, is said to have urged the House to acquiesce.[19] But the sum demanded was so much beyond any precedent, that all the independent members opposed a vigorous resistance. A committee was appointed to remonstrate with the cardinal, and to set forth the impossibility of raising such a subsidy. It was alleged that it exceeded all the current coin of the kingdom. Wolsey, after giving an uncivil answer to the committee, came down again to the House, on pretence of reasoning with them, but probably with a hope of carrying his end by intimidation. They received him, at More's suggestion, with all the train of attendants that usually encircled the haughtiest subject who had ever been known in England. But they made no other answer to his harangue than that it was their usage to debate only among themselves. These debates lasted fifteen or sixteen days. A considerable part of the Commons appears to have consisted of the king's household officers, whose influence, with the utmost difficulty, obtained a grant much inferior to the cardinal's requisition, and payable by instalments in four years. But Wolsey, greatly dissatisfied with this imperfect obedience, compelled the people to pay up the whole subsidy at once.[20] _Illegal exactions of Wolsey in 1522 and 1525._--No parliament was assembled for nearly seven years after this time. Wolsey had already resorted to more arbitrary methods of raising money by loans and benevolences.[21] The year before this debate in the Commons, he borrowed twenty thousand pounds of the city of London; yet so insufficient did that appear for the king's exigencies, that within two months commissioners were appointed throughout the kingdom to swear every man to the value of his possessions, requiring a rateable part according to such declaration. The clergy, it is said, were expected to contribute a fourth; but I believe that benefices above ten pounds in yearly value were taxed at one-third. Such unparalleled violations of the clearest and most important privilege that belonged to Englishmen excited a general apprehension.[22] Fresh commissioners however were appointed in 1525, with instructions to demand the sixth part of every man's substance, payable in money, plate, or jewels, according to the last valuation.[23] This demand Wolsey made in person to the mayor and chief citizens of London. They attempted to remonstrate, but were warned to beware, lest "it might fortune to cost some their heads." Some were sent to prison for hasty words, to which the smart of injury incited them. The clergy, from whom, according to usage, a larger measure of contribution was demanded, stood upon their privilege to grant their money only in convocation, and denied the right of a king of England to ask any man's money without authority of parliament. The rich and poor agreed in cursing the cardinal as the subverter of their laws and liberties; and said "if men should give their goods by a commission, then it would be worse than the taxes of France, and England should be bond, and not free."[24] Nor did their discontent terminate in complaints. The commissioners met with forcible opposition in several counties, and a serious insurrection broke out in Suffolk. So menacing a spirit overawed the proud tempers of Henry and his minister, who found it necessary not only to pardon all those concerned in these tumults, but to recede altogether upon some frivolous pretexts from the illegal exaction, revoking the commissions and remitting all sums demanded under them. They now resorted to the more specious request of a voluntary benevolence. This also the citizens of London endeavoured to repel, by alleging the statute of Richard III. But it was answered that he was an usurper, whose acts did not oblige a lawful sovereign. It does not appear whether or not Wolsey was more successful in this new scheme; but, generally, rich individuals had no remedy but to compound with the government. No very material attempt had been made since the reign of Edward III. to levy a general imposition without consent of parliament, and in the most remote and irregular times it would be difficult to find a precedent for so universal and enormous an exaction; since tallages, however arbitrary, were never paid by the barons or freeholders, nor by their tenants; and the aids to which they were liable were restricted to particular cases. If Wolsey therefore could have procured the acquiescence of the nation under this yoke, there would probably have been an end of parliaments for all ordinary purposes; though, like the States General of France, they might still be convoked to give weight and security to great innovations. We cannot indeed doubt that the unshackled condition of his friend, though rival, Francis I., afforded a mortifying contrast to Henry. Even under his tyrannical administration there was enough to distinguish the king of a people who submitted in murmuring to violations of their known rights, from one whose subjects had almost forgotten that they ever possessed any. But the courage and love of freedom natural to the English commons, speaking in the hoarse voice of tumult, though very ill supported by their superiors, preserved us in so great a peril.[25] _Acts of parliament releasing the king from his debts._--If we justly regard with detestation the memory of those ministers who have aimed at subverting the liberties of their country, we shall scarcely approve the partiality of some modern historians towards Cardinal Wolsey; a partiality, too, that contradicts the general opinion of his contemporaries. Haughty beyond comparison, negligent of the duties and decorums of his station, profuse as well as rapacious, obnoxious alike to his own order and to the laity, his fall had long been secretly desired by the nation and contrived by his adversaries. His generosity and magnificence seem rather to have dazzled succeeding ages than his own. But, in fact, his best apology is the disposition of his master. The latter years of Henry's reign were far more tyrannical than those during which he listened to the counsels of Wolsey; and though this was principally owing to the peculiar circumstances of the latter period, it is but equitable to allow some praise to a minister for the mischief which he may be presumed to have averted. Had a nobler spirit animated the parliament which met at the era of Wolsey's fall, it might have prompted his impeachment for gross violations of liberty. But these were not the offences that had forfeited his prince's favour, or that they dared bring to justice. They were not absent perhaps from the recollection of some of those who took a part in prosecuting the fallen minister. I can discover no better apology for Sir Thomas More's participation in impeaching Wolsey on articles so frivolous that they have served to redeem his fame with later times, than his knowledge of weightier offences against the common weal which could not be alleged, and especially the commissions of 1525.[26] But in truth this parliament showed little outward disposition to object any injustice of such a kind to the cardinal. They professed to take upon themselves to give a sanction to his proceedings, as if in mockery of their own and their country's liberties. They passed a statute, the most extraordinary perhaps of those strange times, wherein "they do, for themselves and all the whole body of the realm which they represent, freely, liberally, and absolutely, give and grant unto the king's highness, by authority of this present parliament, all and every sum and sums of money which to them and every of them, is, ought, or might be due, by reason of any money, or any other thing, to his grace at any time heretofore advanced or paid by way of trust or loan, either upon any letter or letters under the king's privy seal, general or particular, letter missive, promise bond, or obligation of repayment, or by any taxation or other assessing, by virtue of any commission or commissions, or by any other mean or means, whatever it be, heretofore, passed for that purpose."[27] This extreme servility and breach of trust naturally excited loud murmurs; for the debts thus released had been assigned over by many to their own creditors, and having all the security both of the king's honour and legal obligation, were reckoned as valid as any other property. It is said by Hall, that most of this House of Commons held offices under the Crown. This illaudable precedent was remembered in 1544, when a similar act passed, releasing to the king all monies borrowed by him since 1542, with the additional provision, that if he should have already discharged any of these debts, the party or his heirs should repay his majesty.[28] _A benevolence again exacted._--Henry had once more recourse, about 1545, to a general exaction, miscalled benevolence. The council's instructions to the commissioners employed in levying it leave no doubt as to its compulsory character. They were directed to incite all men to a loving contribution according to the rates of their substance, as they were assessed at the last subsidy, calling on no one whose lands were of less value than 40_s._ or whose chattels were less than £15. It is intimated that the least which his majesty could reasonably accept would be twenty pence in the pound, on the yearly value of land, and half that sum on movable goods. They are to summon but a few to attend at one time, and to commune with every one apart, "lest some one unreasonable man, amongst so many, forgetting his duty towards God, his sovereign lord, and his country, may go about by his malicious frowardness to silence all the rest, be they never so well disposed." They were to use "good words and amiable behaviour," to induce men to contribute, and to dismiss the obedient with thanks. But if any person should withstand their gentle solicitations, alleging either poverty or some other pretence which the commissioners should deem unfit to be allowed, then after failure of persuasions and reproaches for ingratitude, they were to command his attendance before the privy council, at such time as they should appoint, to whom they were to certify his behaviour, enjoining him silence in the meantime, that his evil example might not corrupt the better disposed.[29] It is only through the accidental publication of some family papers, that we have become acquainted with this document, so curiously illustrative of the government of Henry VIII. From the same authority may be exhibited a particular specimen of the consequences that awaited the refusal of this benevolence. One Richard Reed, an alderman of London, had stood alone, as is said, among his fellow-citizens, in refusing to contribute. It was deemed expedient not to overlook this disobedience; and the course adopted in pursuing it is somewhat remarkable. The English army was then in the field on the Scots border. Reed was sent down to serve as a soldier at his own charge; and the general, Sir Ralph Ewer, received intimations to employ him on the hardest and most perilous duty, and subject him, when in garrison, to the greatest privations, that he might feel the smart of his folly and sturdy disobedience. "Finally," the letter concludes, "you must use him in all things according to the sharpe disciplyne militar of the northern wars."[30] It is natural to presume that few would expose themselves to the treatment of this unfortunate citizen; and that the commissioners, whom we find appointed two years afterwards in every county, to obtain from the king's subjects as much as they would willingly give, if they did not always find perfect readiness, had not to complain of many peremptory denials.[31] _Severe and unjust executions for treason._--Such was the security that remained against arbitrary taxation under the two Henries. Were men's lives better protected from unjust measures, and less at the mercy of a jealous court? It cannot be necessary to expatiate very much on this subject in a work that supposes the reader's acquaintance with the common facts of our history; yet it would leave the picture too imperfect, were I not to recapitulate the more striking instances of sanguinary injustice that have cast so deep a shade over the memory of these princes. _Earl of Warwick._--The Duke of Clarence, attainted in the reign of his brother Edward IV., left one son, whom his uncle restored to the title of Earl of Warwick. This boy, at the accession of Henry VII., being then about twelve years old, was shut up in the Tower. Fifteen years of captivity had elapsed, when, if we trust to the common story, having unfortunately become acquainted with his fellow-prisoner Perkin Warbeck, he listened to a scheme for their escape, and would probably not have been averse to second the ambitious views of that young man. But it was surmised, with as much likelihood as the character of both parties could give it, that the king had promised Ferdinand of Aragon to remove the Earl of Warwick out of the way, as the condition of his daughter's marriage with the Prince of Wales, and the best means of securing their inheritance. Warwick accordingly was brought to trial for a conspiracy to overturn the government; which he was induced to confess, in the hope, as we must conceive, and perhaps with an assurance, of pardon, and was immediately executed. _Earl of Suffolk._--The nearest heir to the house of York, after the queen and her children, and the descendants of the Duke of Clarence, was a son of Edward IV.'s sister, the Earl of Suffolk, whose elder brother, the Earl of Lincoln, had joined in the rebellion of Lambert Simnel, and perished at the battle of Stoke. Suffolk, having killed a man in an affray, obtained a pardon which the king compelled him to plead in open court at his arraignment. This laudable impartiality is said to have given him offence, and provoked his flight into the Netherlands; whence, being a man of a turbulent disposition, and partaking in the hatred of his family towards the house of Lancaster, he engaged in a conspiracy with some persons at home, which caused him to be attainted of treason. Some time afterwards, the Archduke Philip, having been shipwrecked on the coast of England, found himself in a sort of honourable detention at Henry's court. On consenting to his departure, the king requested him to send over the Earl of Suffolk; and Philip, though not insensible to the breach of hospitality exacted from him, was content to satisfy his honour by obtaining a promise that the prisoner's life should be spared. Henry is said to have reckoned this engagement merely personal, and to have left as a last injunction to his successor, that he should carry into effect the sentence against Suffolk. Though this was an evident violation of the promise in its spirit, yet Henry VIII., after the lapse of a few years, with no new pretext, caused him to be executed. _Duke of Buckingham._--The Duke of Buckingham, representing the ancient family of Stafford, and hereditary high constable of England, stood the first in rank and consequence, perhaps in riches, among the nobility. But being too ambitious and arrogant for the age in which he was born, he drew on himself the jealousy of the king, and the resentment of Wolsey. The evidence, on his trial for high treason, was almost entirely confined to idle and vaunting language, held with servants who betrayed his confidence, and soothsayers whom he had believed. As we find no other persons charged as parties with him, it seems manifest that Buckingham was innocent of any real conspiracy. His condemnation not only gratified the cardinal's revenge, but answered a very constant purpose of the Tudor government, that of intimidating the great families, from whom the preceding dynasty had experienced so much disquietude.[32] _New treasons created by statutes._--The execution, however, of Suffolk was at least not contrary to law; and even Buckingham was attainted on evidence which, according to the tremendous latitude with which the law of treason had been construed, a court of justice could not be expected to disregard. But after the fall of Wolsey, and Henry's breach with the Roman see, his fierce temper, strengthened by habit and exasperated by resistance, demanded more constant supplies of blood; and many perished by sentences which we can hardly prevent ourselves from considering as illegal, because the statutes to which they might be conformable seem, from their temporary duration, their violence, and the passiveness of the parliaments that enacted them, rather like arbitrary invasions of the law than alterations of it. By an act of 1534, not only an oath was imposed to maintain the succession in the heirs of the king's second marriage, in exclusion of the Princess Mary; but it was made high treason to deny that ecclesiastical supremacy of the Crown, which, till about two years before, no one had ever ventured to assert. Bishop Fisher, the most inflexibly honest churchman who filled a high station in that age, was beheaded for this denial. Sir Thomas More, whose name can ask no epithet, underwent a similar fate. He had offered to take the oath to maintain the succession, which, as he justly said, the legislature was competent to alter; but prudently avoided to give an opinion as to the supremacy, till Rich, solicitor-general, and afterwards chancellor, elicited, in a private conversation, some expressions, which were thought sufficient to bring him within the fangs of the recent statute. A considerable number of less distinguished persons, chiefly ecclesiastical, were afterwards executed by virtue of this law. The sudden and harsh innovations made by Henry in religion, as to which every artifice of concealment and delay is required, his destruction of venerable establishments, his tyranny over the recesses of the conscience, excited so dangerous a rebellion in the north of England, that his own general, the Duke of Norfolk, thought it absolutely necessary to employ measures of conciliation.[33] The insurgents laid down their arms, on an unconditional promise of amnesty. But another rising having occurred in a different quarter, the king made use of this pretext to put to death some persons of superior rank, who, though they had, voluntarily or by compulsion, partaken in the first rebellion, had no concern in the second, and to let loose military law upon their followers. Nor was his vengeance confined to those who had evidently been guilty of these tumults. It is, indeed, unreasonable to deny that there might be, nay, there probably were, some real conspirators among those who suffered on the scaffolds of Henry. Yet in the processes against the Countess of Salisbury, an aged woman, but obnoxious as the daughter of the Duke of Clarence and mother of Reginald Pole, an active instrument of the pope in fomenting rebellion,[34] against the abbots of Reading and Glastonbury, and others who were implicated in charges of treason at this period, we find so much haste, such neglect of judicial forms, and so blood-thirsty a determination to obtain convictions, that we are naturally tempted to reckon them among the victims of revenge or rapacity. _Cromwell._--It was, probably, during these prosecutions that Cromwell, a man not destitute of liberal qualities, but who is liable to the one great reproach of having obeyed too implicitly a master whose commands were crimes, inquired of the judges whether, if parliament should condemn a man to die for treason without hearing him, the attainder could ever be disputed. They answered that it was a dangerous question, and that parliament should rather set an example to inferior courts for proceeding according to justice. But being pressed to reply by the king's express commandment, they said that an attainder in parliament, whether the party had been heard or not in his defence, could never be reversed in a court of law. No proceedings, it is said, took place against the person intended, nor is it known who he was.[35] But men prone to remark all that seems an appropriate retribution of Providence, took notice that he, who had thus solicited the interpreters of the law to sanction such a violation of natural justice, was himself its earliest example. In the apparent zenith of favour, this able and faithful minister, the king's viceregent in his ecclesiastical supremacy, and recently created Earl of Essex, fell so suddenly, and so totally without offence, that it has perplexed some writers to assign the cause. But there seems little doubt that Henry's dissatisfaction with his fourth wife, Anne of Cleves, whom Cromwell had recommended, alienated his selfish temper, and inclined his ear to the whisperings of those courtiers who abhorred the favourite and his measures. An act attainting him of treason and heresy was hurried through parliament, without hearing him in his defence.[36] The charges, indeed, at least of the first kind, were so ungrounded, that had he been permitted to refute them, his condemnation, though not less certain, might, perhaps, have caused more shame. This precedent of sentencing men unheard, by means of an act of attainder, was followed in the case of Dr. Barnes, burned not long afterwards for heresy. _Duke of Norfolk._--The Duke of Norfolk had been, throughout Henry's reign, one of his most confidential ministers. But as the king approached his end, an inordinate jealousy of great men, rather than mere caprice, appears to have prompted the resolution of destroying the most conspicuous family in England. Norfolk's son, too, the Earl of Surrey, though long a favourite with the king, possessed more talents and renown, as well as a more haughty spirit, than was compatible with his safety. A strong party at court had always been hostile to the Duke of Norfolk; and his ruin was attributed especially to the influence of the two Seymours. No accusations could be more futile than those who sufficed to take away the life of the noblest and most accomplished man in England. Surrey's treason seems to have consisted chiefly in quartering the royal arms in his escutcheon; and this false heraldry, if such it were, must have been considered as evidence of meditating the king's death. His father ignominiously confessed the charges against himself, in a vain hope of mercy from one who knew not what it meant. An act of attainder (for both houses of parliament were commonly made accessary to the legal murders of this reign) was passed with much haste, and perhaps irregularly; but Henry's demise ensuing at the instant, prevented the execution of Norfolk. Continuing in prison during Edward's reign, he just survived to be released and restored in blood under Mary. _Anne Boleyn._--Among the victims of this monarch's ferocity, as we bestow most of our admiration on Sir Thomas More, so we reserve our greatest pity for Anne Boleyn. Few, very few, have in any age hesitated to admit her innocence.[37] But her discretion was by no means sufficient to preserve her steps on that dizzy height, which she had ascended with more eager ambition than feminine delicacy could approve. Henry was probably quick-sighted enough to perceive that he did not possess her affections; and his own were soon transferred to another object. Nothing in this detestable reign is worse than her trial. She was indicted, partly upon the statute of Edward III., which, by a just though rather technical construction, has been held to extend the guilt of treason to an adulterous queen as well as to her paramour, and partly on the recent law for preservation of the succession, which attached the same penalties to anything done or said in slander of the king's issue. Her levities in discourse were brought within this strange act by a still more strange interpretation. Nor was the wounded pride of the king content with her death. Under the fear, as is most likely, of a more cruel punishment, which the law affixed to her offence, Anne was induced to confess a pre-contract with Lord Percy, on which her marriage with the king was annulled by an ecclesiastical sentence, without awaiting its certain dissolution by the axe.[38] Henry seems to have thought his honour too much sullied by the infidelity of a lawful wife. But for this destiny he was yet reserved. I shall not impute to him as an act of tyranny the execution of Catherine Howard, since it appears probable that the licentious habits of that young woman had continued after her marriage; and though we might not in general applaud the vengeance of a husband who should put a guilty wife to death, it could not be expected that Henry VIII. should lose so reasonable an opportunity of shedding blood.[39] It was after the execution of this fifth wife that the celebrated law was enacted, whereby any woman whom the king should marry as a virgin incurred the penalties of treason, if she did not previously reveal any failings that had disqualified her for the service of Diana.[40] _Fresh statutes enacting the penalties of treason._--These parliamentary attainders, being intended rather as judicial than legislative proceedings, were violations of reason and justice in the application of law. But many general enactments of this reign bear the same character of servility. New political offences were created in every parliament, against which the severest penalties were denounced. The nation had scarcely time to rejoice in the termination of those long debates between the houses of York and Lancaster, when the king's divorce, and the consequent illegitimacy of his eldest daughter, laid open the succession to fresh questions. It was needlessly unnatural and unjust to bastardise the Princess Mary, whose title ought rather to have had the confirmation of parliament. But Henry, who would have deemed so moderate a proceeding injurious to his cause in the eyes of Europe, and a sort of concession to the adversaries of the divorce, procured an act settling the crown on his children by Anne or any subsequent wife. Any person disputing the lawfulness of the king's second marriage might, by the sort of construction that would be put on this act, become liable to the penalties of treason. In two years more this very marriage was annulled by sentence; and it would perhaps have been treasonable to assert the Princess Elizabeth's legitimacy. The same punishment was enacted against such as should marry without licence under the great seal, or have a criminal intercourse with any of the king's children "lawfully born, or otherwise commonly reputed to be his children, or his sister, aunt, or niece."[41] _Act giving proclamations the force of law._--Henry's two divorces had created an uncertainty as to the line of succession, which parliament endeavoured to remove, not by such constitutional provisions in concurrence with the Crown as might define the course of inheritance, but by enabling the king, on failure of issue by Jane Seymour or any other lawful wife, to make over and bequeath the kingdom to any persons at his pleasure, not even reserving a preference to the descendants of former sovereigns.[42] By a subsequent statute, the Princesses Mary and Elizabeth were nominated in the entail, after the king's male issue, subject, however, to such conditions as he should declare, by non-compliance with which their right was to cease.[43] This act still left it in his power to limit the remainder at his discretion. In execution of this authority, he devised the crown, upon failure of issue from his three children, to the heirs of the body of Mary Duchess of Suffolk, the younger of his two sisters; postponing at least, if not excluding, the royal family of Scotland, descended from his elder sister Margaret. In surrendering the regular laws of the monarchy to one man's caprice, this parliament became accessary, so far as in it lay, to dispositions which might eventually have kindled the flames of civil war. But it seemed to aim at inflicting a still deeper injury on future generations, in enacting that a king, after he should have attained the age of twenty-four years, might repeal any statutes made since his accession.[44] Such a provision not only tended to annihilate the authority of a regency, and to expose the kingdom to a sort of anarchical confusion during its continuance, but seemed to prepare the way for a more absolute power of abrogating all acts of the legislature. Three years afterwards it was enacted that proclamations made by the king and council, under penalty of fine and imprisonment, should have the force of statutes, so that they should not be prejudicial to any person's inheritance, offices, liberties, goods, and chattels, or infringe the established laws. This has been often noticed as an instance of servile compliance. It is, however, a striking testimony to the free constitution it infringed, and demonstrates that the prerogative could not soar to the heights it aimed at, till thus imped by the perfidious hand of parliament. It is also to be observed, that the power given to the king's proclamations is considerably limited.[45] A government administered with so frequent violations not only of the chartered privileges of Englishmen, but of those still more sacred rights which natural law has established, must have been regarded, one would imagine, with just abhorrence, and earnest longings for a change. Yet contemporary authorities by no means answer to this expectation. Some mention Henry after his death in language of eulogy; and, if we except those whom attachment to the ancient religion had inspired with hatred towards his memory, very few appear to have been aware that his name would descend to posterity among those of the many tyrants and oppressors of innocence, whom the wrath of Heaven has raised up, and the servility of men has endured. I do not indeed believe that he had really conciliated his people's affection. That perfect fear which attended him must have cast out love. But he had a few qualities that deserve esteem, and several which a nation is pleased to behold in its sovereign. He wanted, or at least did not manifest in any eminent degree, one usual vice of tyrants, dissimulation; his manners were affable, and his temper generous. Though his schemes of foreign policy were not very sagacious, and his wars, either with France or Scotland, productive of no material advantage, they were uniformly successful, and retrieved the honour of the English name. But the main cause of the reverence with which our forefathers cherished this king's memory, was the share he had taken in the Reformation. They saw in him not indeed the proselyte of their faith, but the subverter of their enemies' power, the avenging minister of Heaven, by whose giant arm the chain of superstition had been broken, and the prison gates burst asunder.[46] _Government of Edward VI.'s counsellors._--The ill-assorted body of counsellors who exercised the functions of regency by Henry's testament, were sensible that they had not sinews to wield his iron sceptre, and that some sacrifice must be made to a nation exasperated as well as overawed by the violent measures of his reign. In the first session accordingly of Edward's parliament, the new treasons and felonies which had been created to please his father's sanguinary disposition, were at once abrogated.[47] The statute of Edward III. became again the standard of high treason, except that the denial of the king's supremacy was still liable to its penalties. The same act, which relieves the subject from these terrors, contains also a repeal of that which had given legislative validity to the king's proclamations. These provisions appear like an elastic recoil of the constitution after the extraordinary pressure of that despotic reign. But, however they may indicate the temper of parliament, we must consider them but as an unwilling and insincere compliance on the part of the government. Henry, too arrogant to dissemble with his subjects, had stamped the law itself with the print of his despotism. The more wily courtiers of Edward's council deemed it less obnoxious to violate than to new-mould the constitution. For, although proclamations had no longer the legal character of statutes, we find several during Edward's reign enforced by penalty of fine and imprisonment. Many of the ecclesiastical changes were first established by no other authority, though afterwards sanctioned by parliament. Rates were thus fixed for the price of provisions; bad money was cried down, with penalties on those who should buy it under a certain value, and the melting of the current coin prohibited on pain of forfeiture.[48] Some of these might possibly have a sanction from precedent, and from the acknowledged prerogative of the crown in regulating the coin. But no legal apology can be made for a proclamation in April 1549, addressed to all justices of the peace, enjoining them to arrest sowers and tellers abroad of vain and forged tales and lies, and to commit them to the galleys, there to row in chains as slaves during the king's pleasure.[49] One would imagine that the late statute had been repealed, as too far restraining the royal power, rather than as giving it an unconstitutional extension. _Attainder of Lord Seymour._--It soon became evident that, if the new administration had not fully imbibed the sanguinary spirit of their late master, they were as little scrupulous in bending the rules of law and justice to their purpose in cases of treason. The Duke of Somerset, nominated by Henry only as one of his sixteen executors, obtained almost immediately afterwards a patent from the young king, who during his minority was certainly not capable of any valid act, constituting him sole regent under the name of protector, with the assistance indeed of the rest as his counsellors, but with the power of adding any others to their number. Conscious of his own usurpation, it was natural for Somerset to dread the aspiring views of others; nor was it long before he discovered a rival in his brother, Lord Seymour of Sudeley, whom, according to the policy of that age, he thought it necessary to destroy by a bill of attainder. Seymour was apparently a dangerous and unprincipled man; he had courted the favour of the young king by small presents of money, and appears beyond question to have entertained a hope of marrying the Princess Elizabeth, who had lived much in his house during his short union with the queen dowager. It was surmised that this lady had been poisoned to make room for a still nobler consort.[50] But in this there could be no treason; and it is not likely that any evidence was given which could have brought him within the statute of Edward III. In this prosecution against Lord Seymour, it was thought expedient to follow the very worst of Henry's precedents, by not hearing the accused in his defence. The bill passed through the upper house, the natural guardian of a peer's life and honour, without one dissenting voice. The Commons addressed the king that they might hear the witnesses, and also the accused. It was answered that the king did not think it necessary for them to hear the latter, but that those who had given their depositions before the Lords might repeat their evidence before the lower house. It rather appears that the Commons did not insist on this any farther; but the bill of attainder was carried with a few negative voices.[51] How striking a picture it affords of the sixteenth century, to behold the popular and well-natured Duke of Somerset, more estimable at least than any statesman employed under Edward, not only promoting this unjust condemnation of his brother, but signing the warrant under which he was beheaded! _Attainder of Duke of Somerset._--But it was more easy to crush a single competitor, than to keep in subjection the subtle and daring spirits trained in Henry's councils, and jealous of the usurpation of an equal. The protector, attributing his success, as is usual with men in power, rather to skill than fortune, and confident in the two frailest supports that a minister can have, the favour of a child and of the lower people, was stripped of his authority within a few months after the execution of Lord Seymour, by a confederacy which he had neither the discretion to prevent, nor the firmness to resist. Though from this time but a secondary character upon the public stage, he was so near the throne as to keep alive the suspicions of the Duke of Northumberland, who, with no ostensible title, had become not less absolute than himself. It is not improbable that Somerset was innocent of the charge imputed to him, namely, a conspiracy to murder some of the privy councillors, which had been erected into felony by a recent statute; but the evidence, though it may have been false, does not seem legally insufficient. He demanded on his trial to be confronted with the witnesses; a favour rarely granted in that age to state criminals, and which he could not very decently solicit after causing his brother to be condemned unheard. Three lords, against whom he was charged to have conspired, sat upon his trial; and it was thought a sufficient reply to his complaints of this breach of a known principle, that no challenge could be allowed in the case of a peer. From this designing and unscrupulous oligarchy no measure conducive to liberty and justice could be expected to spring. But among the Commons there must have been men, although their names have not descended to us, who, animated by a purer zeal for these objects, perceived on how precarious a thread the life of every man was suspended, when the private deposition of one suborned witness, unconfronted with the prisoner, could suffice to obtain a conviction in cases of treason. In the worst period of Edward's reign, we find inserted in a bill creating some new treasons, one of the most important constitutional provisions which the annals of the Tudor family afford. It is enacted, that "no person shall be indicted for any manner of treason, except on the testimony of two lawful witnesses, who shall be brought in person before the accused at the time of his trial, to avow and maintain what they have to say against him, unless he shall willingly confess the charges."[52] This salutary provision was strengthened, not taken away, as some later judges ventured to assert, by an act in the reign of Mary. In a subsequent part of this work, I shall find an opportunity for discussing this important branch of constitutional law. _Violence of Mary's reign._--It seems hardly necessary to mention the momentary usurpation of Lady Jane Grey, founded on no pretext of title which could be sustained by any argument. She certainly did not obtain that degree of actual possession which might have sheltered her adherents under the statute of Henry VII.; nor did the Duke of Northumberland allege this excuse on his trial, though he set up one of a more technical nature, that the great seal was a sufficient protection for acts done by its authority.[53] The reign that immediately followed is chiefly remembered as a period of sanguinary persecution; but though I reserve for the next chapter all mention of ecclesiastical disputes, some of Mary's proceedings in re-establishing popery belong to the civil history of our constitution. Impatient, under the existence, for a moment, of rites and usages which she abhorred, this bigoted woman anticipated the legal authority which her parliament was ready to interpose for their abrogation; the Latin liturgy was restored, the married clergy expelled from their livings, and even many protestant ministers thrown into prison for no other crime than their religion, before any change had been made in the established laws.[54] The queen, in fact, and those around her, acted and felt as a legitimate government restored after an usurpation, and treated the recent statutes as null and invalid. But even in matters of temporal government, the stretches of prerogative were more violent and alarming than during her brother's reign. It is due indeed to the memory of one who has left so odious a name, to remark that Mary was conscientiously averse to encroach upon what she understood to be the privileges of her people. A wretched book having been written to exalt her prerogative, on the ridiculous pretence that, as a queen, she was not bound by the laws of former kings, she showed it to Gardiner, and on his expressing indignation at the sophism, threw it herself into the fire. An act passed, however, to settle such questions, which declares the queen to have all the lawful prerogatives of the Crown.[55] But she was surrounded by wicked counsellors, renegades of every faith and ministers of every tyranny. We must, in candour, attribute to their advice her arbitrary measures, though not her persecution of heresy, which she counted for virtue. She is said to have extorted loans from the citizens of London, and others of her subjects.[56] This, indeed, was not more than had been usual with her predecessors. But we find one clear instance during her reign of a duty upon foreign cloth, imposed without assent of parliament; an encroachment unprecedented since the reign of Richard II. Several proofs might be adduced from records of arbitrary inquests for offences, and illegal modes of punishment. The torture is, perhaps, more frequently mentioned in her short reign than in all former ages of our history put together; and probably from that imitation of foreign governments, which contributed not a little to deface our constitution in the sixteenth century, seems deliberately to have been introduced as part of the process in those dark and uncontrolled tribunals which investigated offences against the state.[57] A commission issued in 1557, authorising the persons named in it to enquire, by any means they could devise, into charges of heresy or other religious offences, and in some instances to punish the guilty, in others of a graver nature to remit them to their ordinaries, seems (as Burnet has well observed) to have been meant as a preliminary step to bringing in the inquisition. It was at least the germ of the high-commission court in the next reign.[58] One proclamation, in the last year of her inauspicious administration, may be deemed a flight of tyranny beyond her father's example; which, after denouncing the importation of books filled with heresy and treason from beyond sea, proceeds to declare that whoever should be found to have such books in his possession should be reputed and taken for a rebel, and executed according to martial law.[59] This had been provoked as well by a violent libel written at Geneva by Goodman, a refugee, exciting the people to dethrone the queen; as by the recent attempt of one Stafford, a descendant of the house of Buckingham, who, having landed with a small force at Scarborough, had vainly hoped that the general disaffection would enable him to overthrow her government.[60] _The House of Commons recovers part of its independent power in these two reigns._--Notwithstanding, however, this apparently uncontrolled career of power, it is certain that the children of Henry VIII. did not preserve his almost absolute dominion over parliament. I have only met with one instance in his reign where the Commons refused to pass a bill recommended by the Crown. This was in 1532; but so unquestionable were the legislative rights of parliament, that, although much displeased, even Henry was forced to yield.[61] We find several instances during the reign of Edward, and still more in that of Mary, where the Commons rejected bills sent down from the upper house; and though there was always a majority of peers for the government, yet the dissent of no small number is frequently recorded in the former reign. Thus the Commons not only threw out a bill creating several new treasons, and substituted one of a more moderate nature, with that memorable clause for two witnesses to be produced in open court, which I have already mentioned;[62] but rejected one attainting Tunstal Bishop of Durham for misprision of treason, and were hardly brought to grant a subsidy.[63] Their conduct in the two former instances, and probably in the third, must be attributed to the indignation that was generally felt at the usurped power of Northumberland, and the untimely fate of Somerset. Several cases of similar unwillingness to go along with court measures occurred under Mary. She dissolved, in fact, her two first parliaments on this account. But the third was far from obsequious, and rejected several of her favourite bills.[64] Two reasons principally contributed to this opposition; the one, a fear of entailing upon the country those numerous exactions of which so many generations had complained, by reviving the papal supremacy, and more especially of a restoration of abbey lands; the other, an extreme repugnance to the queen's Spanish connection.[65] If Mary could have obtained the consent of parliament, she would have settled the crown on her husband, and sent her sister, perhaps, to the scaffold.[66] _Attempt of the court to strengthen itself by creating new boroughs._--There cannot be a stronger proof of the increased weight of the Commons during these reigns, than the anxiety of the court to obtain favourable elections. Many ancient boroughs undoubtedly have at no period possessed sufficient importance to deserve the elective franchise on the score of their riches or population; and it is most likely that some temporary interest or partiality, which cannot now be traced, first caused a writ to be addressed to them. But there is much reason to conclude that the counsellors of Edward VI., in erecting new boroughs, acted upon a deliberate plan of strengthening their influence among the Commons. Twenty-two boroughs were created or restored in this short reign; some of them, indeed, places of much consideration, but not less than seven in Cornwall, and several others that appear to have been insignificant. Mary added fourteen to the number; and as the same course was pursued under Elizabeth, we in fact owe a great part of that irregularity in our popular representation, the advantages or evils of which we need not here discuss, less to changes wrought by time, than to deliberate and not very constitutional policy. Nor did the government scruple a direct and avowed interference with elections. A circular letter of Edward to all the sheriffs commands them to give notice to the freeholders, citizens, and burgesses within their respective counties, "that our pleasure and commandment is, that they shall choose and appoint, as nigh as they possibly may, men of knowledge and experience within the counties, cities, and boroughs;" but nevertheless, that where the privy council should "recommend men of learning and wisdom, in such case their directions be regarded and followed." Several persons accordingly were recommended by letters to the sheriffs, and elected as knights for different shires; all of whom belonged to the court, or were in places of trust about the king.[67] It appears probable that persons in office formed at all times a very considerable portion of the House of Commons. Another circular of Mary before the parliament of 1554, directing the sheriffs to admonish the electors to choose good catholics and "inhabitants, as the old laws require," is much less unconstitutional; but the Earl of Sussex, one of her most active counsellors, wrote to the gentlemen of Norfolk, and to the burgesses of Yarmouth, requesting them to reserve their voices for the person he should name.[68] There is reason to believe that the court, or rather the imperial ambassador, did homage to the power of the Commons, by presents of money, in order to procure their support of the unpopular marriage with Philip;[69] and if Noailles, the ambassador of Henry II., did not make use of the same means to thwart the grants of subsidy and other measures of the administration, he was at least very active in promising the succour of France, and animating the patriotism of those unknown leaders of that assembly, who withstood the design of a besotted woman and her unprincipled counsellors to transfer this kingdom under the yoke of Spain.[70] _Causes of the high prerogative of the Tudors._--It appears to be a very natural enquiry, after beholding the course of administration under the Tudor line, by what means a government so violent in itself, and so plainly inconsistent with the acknowledged laws, could be maintained; and what had become of that English spirit which had not only controlled such injudicious princes as John and Richard II., but withstood the first and third Edward in the fulness of their pride and glory. Not, indeed, that the excesses of prerogative had ever been thoroughly restrained, or that, if the memorials of earlier ages had been as carefully preserved as those of the sixteenth century, we might not possibly find in them equally flagrant instances of oppression; but still the petitions of parliament and frequent statutes remain on record, bearing witness to our constitutional law and to the energy that gave it birth. There had evidently been a retrograde tendency towards absolute monarchy between the reigns of Henry VI. and Henry VIII. Nor could this be attributed to the common engine of despotism, a military force. For, except the yeomen of the guard, fifty in number, and the common servants of the king's household, there was not, in time of peace, an armed man receiving pay throughout England.[71] A government that ruled by intimidation was absolutely destitute of force to intimidate. Hence risings of the mere commonalty were sometimes highly dangerous, and lasted much longer than ordinary. A rabble of Cornishmen, in the reign of Henry VII., headed by a blacksmith, marched up from their own county to the suburbs of London without resistance. The insurrections of 1525 in consequence of Wolsey's illegal taxation, those of the north ten years afterwards, wherein, indeed, some men of higher quality were engaged, and those which broke out simultaneously in several counties under Edward VI., excited a well-grounded alarm in the country; and in the two latter instances were not quelled without much time and exertion. The reproach of servility and patient acquiescence under usurped power falls not on the English people, but on its natural leaders. We have seen, indeed, that the House of Commons now and then gave signs of an independent spirit, and occasioned more trouble, even to Henry VIII., than his compliant nobility. They yielded to every mandate of his imperious will; they bent with every breath of his capricious humour; they are responsible for the illegal trial, for the iniquitous attainder, for the sanguinary statute, for the tyranny which they sanctioned by law, and for that which they permitted to subsist without law. Nor was this selfish and pusillanimous subserviency more characteristic of the minions of Henry's favour, the Cromwells, the Riches, the Pagets, the Russells, and the Powletts, than of the representatives of ancient and honourable houses, the Norfolks, the Arundels, and the Shrewsburies. We trace the noble statesmen of those reigns concurring in all the inconsistencies of their revolutions, supporting all the religions of Henry, Edward, Mary, and Elizabeth; adjudging the death of Somerset to gratify Northumberland, and of Northumberland to redeem their participation in his fault, setting up the usurpation of Lady Jane, and abandoning her on the first doubt of success, constant only in the rapacious acquisition of estates and honours from whatever source, and in adherence to the present power. _Jurisdiction of the council of star-chamber._--I have noticed in a former work that illegal and arbitrary jurisdiction exercised by the council, which, in despite of several positive statutes, continued in a greater or less degree through all the period of the Plantagenet family, to deprive the subject, in many criminal charges, of that sacred privilege, trial by his peers.[72] This usurped jurisdiction, carried much farther and exercised more vigorously, was the principal grievance under the Tudors; and the forced submission of our forefathers was chiefly owing to the terrors of a tribunal, which left them secure from no infliction but public execution, or actual dispossession of their freeholds. And, though it was beyond its direct province to pass sentence on capital charges; yet, by intimidating jurors, it procured convictions which it was not authorised to pronounce. We are naturally astonished at the easiness with which verdicts were sometimes given against persons accused of treason on evidence insufficient to support the charge in point of law, or in its nature not competent to be received, or unworthy of belief. But this is explained by the peril that hung over the jury in case of acquittal. "If," says Sir Thomas Smith, in his _Treatise on the Commonwealth of England_, "they do pronounce not guilty upon the prisoner, against whom manifest witness is brought in, the prisoner escapeth, but the twelve are not only rebuked by the judges, but also threatened of punishment, and many times commanded to appear in the star-chamber, or before the privy council, for the matter. But this threatening chanceth oftener than the execution thereof; and the twelve answer with most gentle words, they did it according to their consciences, and pray the judges to be good unto them; they did as they thought right, and as they accorded all; and so it passeth away for the most part. Yet I have seen in my time, but not in the reign of the king now [Elizabeth], that an inquest for pronouncing one not guilty of treason contrary to such evidence as was brought in, were not only imprisoned for a space, but a large fine set upon their heads, which they were fain to pay; another inquest for acquitting another, beside paying a fine, were put to open ignominy and shame. But these doings were even then accounted of many for violent, tyrannical, and contrary to the liberty and custom of the realm of England."[73] One of the instances to which he alludes was probably that of the jury who acquitted Sir Nicholas Throckmorton in the second year of Mary. He had conducted his own defence with singular boldness and dexterity. On delivering their verdict, the court committed them to prison. Four, having acknowledged their offence, were soon released; but the rest, attempting to justify themselves before the council, were sentenced to pay, some a fine of two thousand pounds, some of one thousand marks; a part of which seems ultimately to have been remitted.[74] It is here to be observed that the council of which we have just heard, or, as Lord Hale denominates it (though rather, I believe, for the sake of distinction than upon any ancient authority), the king's ordinary council, was something different from the privy council, with which several modern writers are apt to confound it; that is, the court of jurisdiction is to be distinguished from the deliberative body, the advisers of the Crown. Every privy councillor belonged to the concilium ordinarium; but the chief justices, and perhaps several others who sat in the latter (not to mention all temporal and spiritual peers, who, in the opinion at least of some, had a right of suffrage therein), were not necessarily of the former body.[75] This cannot be called in question, without either charging Lord Coke, Lord Hale, and other writers on the subject, with ignorance of what existed in their own age, or gratuitously supposing that an entirely novel tribunal sprung up in the sixteenth century under the name of the star-chamber. It has indeed been often assumed that a statute enacted early in the reign of Henry VII. gave the first legal authority to the criminal jurisdiction exercised by that famous court, which in reality was nothing else but another name for the ancient concilium regis, of which our records are full, and whose encroachments so many statutes had endeavoured to repress; a name derived from the chamber wherein it sat, and which is found in many precedents before the time of Henry VII., though not so specially applied to the council of judicature as afterwards.[76] The statute of this reign has a much more limited operation. I have observed in another place, that the coercive jurisdiction of the council had great convenience, in cases where the ordinary course of justice was so much obstructed by one party, through writs, combinations of maintenance, or overawing influence, that no inferior court would find its process obeyed; and that such seem to have been reckoned necessary exceptions from the statutes which restrain its interference. The act of 3 H. 7, c. 1 appears intended to place on a lawful and permanent basis the jurisdiction of the council, or rather a part of the council, over this peculiar class of offences; and after reciting the combinations supported by giving liveries, and by indentures or promises, the partiality of sheriffs in making pannels, and in untrue returns, the taking of money by juries, the great riots and unlawful assemblies, which almost annihilated the fair administration of justice, empowers the chancellor, treasurer, and keeper of the privy seal, or any two of them, with a bishop and temporal lord of the council, and the chief justices of king's bench and common pleas, or two other justices in their absence, to call before them such as offended in the before-mentioned respects, and to punish them after examination in such manner as if they had been convicted by course of law. But this statute, if it renders legal a jurisdiction which had long been exercised with much advantage, must be allowed to limit the persons in whom it should reside, and certainly does not convey by any implication more extensive functions over a different description of misdemeanours. By a later act, 21 H. 8, c. 20, the president of the council is added to the judges of this court; a decisive proof that it still existed as a tribunal perfectly distinct from the council itself. But it is not styled by the name of star-chamber in this, any more than in the preceding statute. It is very difficult, I believe, to determine at what time the jurisdiction legally vested in this new court, and still exercised by it forty years afterwards, fell silently into the hands of the body of the council, and was extended by them so far beyond the boundaries assigned by law, under the appellation of the court of star-chamber. Sir Thomas Smith, writing in the early part of Elizabeth's reign, while he does not advert to the former court, speaks of the jurisdiction of the latter as fully established, and ascribes the whole praise (and to a certain degree it was matter of praise) to Cardinal Wolsey. The celebrated statute of 31 H. 8, c. 8, which gives the king's proclamations, to a certain extent, the force of acts of parliament, enacts that offenders convicted of breaking such proclamations before certain persons enumerated therein (being apparently the usual officers of the privy council, together with some bishops and judges), "in the star-chamber or elsewhere," shall suffer such penalties of fine and imprisonment as they shall adjudge. "It is the effect of this court," Smith says, "to bridle such stout noblemen or gentlemen which would offer wrong by force to any manner of men, and cannot be content to demand or defend the right by order of the law. It began long before, but took augmentation and authority at that time that Cardinal Wolsey, Archbishop of York, was chancellor of England, who of some was thought to have first devised that court, because that he, after some intermission, by negligence of time, augmented the authority of it,[77] which was at that time marvellous necessary to do to repress the insolency of the noblemen and gentlemen in the north parts of England, who being far from the king and the seat of justice, made almost, as it were, an ordinary war among themselves, and made their force their law, binding themselves, with their tenants and servants, to do or revenge an injury one against another as they listed. This thing seemed not supportable to the noble prince Henry VIII.; and sending for them one after another to his court, to answer before the persons before named, after they had remonstrance showed them of their evil demeanour, and been well disciplined, as well by words as by _fleeting_ [confinement in the Fleet prison] a while, and thereby their pride and courage somewhat assuaged, they began to range themselves in order, and to understand that they had a prince who would rule his subjects by his law and obedience. Since that time, this court has been in more estimation, and is continued to this day in manner as I have said before."[78] But as the court erected by the statute of Henry VII. appears to have been in activity as late as the fall of Cardinal Wolsey, and exercised its jurisdiction over precisely that class of offences which Smith here describes, it may perhaps be more likely that it did not wholly merge in the general body of the council till the minority of Edward, when that oligarchy became almost independent and supreme. It is obvious that most, if not all, of the judges in the court held under that statute were members of the council; so that it might in a certain sense be considered as a committee from that body, who had long before been wont to interfere with the punishment of similar misdemeanours. And the distinction was so soon forgotten, that the judges of the king's bench in the 13th of Elizabeth cite a case from the year-book of 8 H. 7 as "concerning the star-chamber," which related to the limited court erected by the statute.[79] In this half-barbarous state of manners we certainly discover an apology, as well as motive, for the council's interference; for it is rather a servile worshipping of names than a rational love of liberty, to prefer the forms of trial to the attainment of justice, or to fancy that verdicts obtained by violence or corruption are at all less iniquitous than the violent or corrupt sentences of a court. But there were many cases wherein neither the necessity of circumstances, nor the legal sanction of any statute, could excuse the jurisdiction habitually exercised by the court of star-chamber. Lord Bacon takes occasion from the act of Henry VII. to descant on the sage and noble institution, as he terms it, of that court, whose walls had been so often witnesses to the degradation of his own mind. It took cognisance principally, he tells us, of four kinds of causes, "forces, frauds, crimes various of stellionate, and the inchoations or middle acts towards crimes capital or heinous, not actually committed or perpetrated."[80] Sir Thomas Smith uses expressions less indefinite than these last; and specifies scandalous reports of persons in power, and seditious news, as offences which they were accustomed to punish. We shall find abundant proofs of this department of their functions in the succeeding reigns. But this was in violation of many ancient laws, and not in the least supported by that of Henry VII.[81] _Influence of the authority of the star-chamber in enhancing the royal power._--A tribunal so vigilant and severe as that of the star-chamber, proceeding by modes of interrogatory unknown to the common law, and possessing a discretionary power of fine and imprisonment, was easily able to quell any private opposition or contumacy. We have seen how the council dealt with those who refused to lend money by way of benevolence, and with the juries who found verdicts that they disapproved. Those that did not yield obedience to their proclamations were not likely to fare better. I know not whether menaces were used towards members of the Commons who took part against the Crown; but it would not be unreasonable to believe it, or at least that a man of moderate courage would scarcely care to expose himself to the resentment which the council might indulge after a dissolution. A knight was sent to the Tower by Mary, for his conduct in parliament;[82] and Henry VIII. is reported, not perhaps on very certain authority, to have talked of cutting off the heads of refractory commoners. In the persevering struggles of earlier parliaments against Edward III., Richard II., and Henry IV., it is a very probable conjecture, that many considerable peers acted in union with, and encouraged the efforts of, the Commons. But in the period now before us, the nobility were precisely the class most deficient in that constitutional spirit, which was far from being extinct in those below them. They knew what havoc had been made among their fathers, by multiplied attainders during the rivalry of the two Roses. They had seen terrible examples of the danger of giving umbrage to a jealous court, in the fate of Lord Stanley and the Duke of Buckingham, both condemned on slight evidence of treacherous friends and servants, from whom no man could be secure. Though rigour and cruelty tend frequently to overturn the government of feeble princes, it is unfortunately too true that, steadily employed and combined with vigilance and courage, they are often the safest policy of despotism. A single suspicion in the dark bosom of Henry VII., a single cloud of wayward humour in his son, would have been sufficient to send the proudest peer of England to the dungeon and the scaffold. Thus a life of eminent services in the field, and of unceasing compliance in council, could not rescue the Duke of Norfolk from the effects of a dislike which we cannot even explain. Nor were the nobles of this age more held in subjection by terror than by the still baser influence of gain. Our law of forfeiture was well devised to stimulate, as well as to deter; and Henry VIII., better pleased to slaughter the prey than to gorge himself with the carcass, distributed the spoils it brought him among those who had helped in the chase. The dissolution of monasteries opened a more abundant source of munificence; every courtier, every peer, looked for an increase of wealth from grants of ecclesiastical estates, and naturally thought that the king's favour would most readily be gained by an implicit conformity to his will. Nothing however seems more to have sustained the arbitrary rule of Henry VIII. than the jealousy of the two religious parties formed in his time, and who, for all the latter years of his life, were maintaining a doubtful and emulous contest for his favour. But this religious contest, and the ultimate establishment of the Reformation, are events far too important, even in a constitutional history, to be treated in a cursory manner; and as, in order to avoid transitions, I have purposely kept them out of sight in the present chapter, they will form the proper subject of the next. FOOTNOTES: [5] This statute is not even alluded to in Ruffhead's edition, and has been very little noticed by writers on our law or history. It is printed in the late edition, published by authority, and is brought forward in the First Report of the Lords' Committee, on the dignity of a Peer (1819), p. 282. Nothing can be more evident than that it not only establishes by a legislative declaration the present constitution of parliament, but recognises it as already standing upon a custom of some length of time. [6] The pleadings, as they are called, or written allegations of both parties, which form the basis of a judicial enquiry, commence with the _declaration_, wherein the plaintiff states, either specially, or in some established form, according to the nature of the case, that he has a debt to demand from or an injury to be redressed by, the defendant. The latter, in return, puts in his _plea_; which, if it amount to a denial of the facts alleged in the declaration, must _conclude to the country_, that is, must refer the whole matter to a jury. But if it contain an admission of the fact, along with a legal justification of it, it is said to _conclude to the court_; the effect of which is to make it necessary for the plaintiff to reply; in which _replication_ he may deny the facts pleaded in justification, and conclude to the country; or allege some new matter in explanation, to show that they do not meet all the circumstances, concluding to the court. Either party also may demur, that is, deny that, although true and complete as a statement of facts, the declaration or plea is sufficient according to law to found or repel the plaintiff's suit. In the last case it becomes an issue in law, and is determined by the judges without the intervention of a jury; it being a principle, that by demurring, the party acknowledges the truth of all matters alleged on the pleadings. But in whatever stage of the proceedings either of the litigants concludes to the country (which he is obliged to do, whenever the question can be deduced to a disputed fact), a jury must be impanelled to decide it by their verdict. These pleadings, together with what is called the _postea_, that is, an indorsement by the clerk of the court wherein the trial has been, reciting that _afterwards_ the cause was so tried, and such a verdict returned, with the subsequent entry of the judgment itself, form the record. This is merely intended to explain the phrase in the text, which common readers might not clearly understand. The theory of special pleading, as it is generally called, could not be further elucidated without lengthening this note beyond all bounds. But it all rests upon the ancient maxim: "De facto respondent juratores, de jure judices." Perhaps it may be well to add one observation--that in many forms of action, and those of most frequent occurrence in modern times, it is not required to state the legal justification on the pleadings, but to give it in evidence on the general issue; that is, upon a bare plea of denial. In this case the whole matter is actually in the power of the jury. But they are generally bound in conscience to defer, as to the operation of any rule of law, to what is laid down on that head by the judge; and when they disregard his directions, it is usual to annul the verdict, and grant a new trial. There seem to be some disadvantages in the annihilation, as it may be called, of written pleadings, by their reduction to an unmeaning form, which has prevailed in three such important and extensive forms of action, as _ejectment_, _general_ _assumpsit_, and _trover_; both as it throws too much power into the hands of the jury, and as it almost nullifies the appellant jurisdiction, which can only be exercised where some error is apparent on the face of the record. But great practical convenience, and almost necessity, has generally been alleged as far more than a compensation for these evils. [7] The population for 1485 is estimated by comparing a sort of census in 1378, when the inhabitants of the realm seem to have amounted to about 2,300,000, with one still more loose under Elizabeth in 1588, which would give about 4,400,000; making some allowance for the more rapid increase in the latter period. Three millions at the accession of Henry VII. is probably not too low an estimate. [8] _Rot. Parl._ vi. 270. But the pope's bull of dispensation for the king's marriage speaks of the realm of England as "jure hæreditario ad te legitimum in illo prædecessorum tuorum successorem pertinens." Rymer, xii. 294. And all Henry's own instruments claim an hereditary right, of which many proofs appear in Rymer. [9] Stat. 11 H. 7, c. 1. [10] Blackstone (vol. iv. c. 6) has some rather perplexed reasoning on this statute, leaning a little towards the _de jure_ doctrine, and at best confounding _moral_ with _legal_ obligations. In the latter sense, whoever attends to the preamble of the act will see that Hawkins, whose opinion Blackstone calls in question, is right; and that he is himself wrong in pretending that "the statute of Henry VII. does by no means command any opposition to a king _de jure_, but excuses the obedience paid to a king _de facto_." [11] For these observations on the statute of Fines, I am principally indebted to Reeves's _History of the English Law_ (iv. 133), a work, especially in the latter volumes, of great research and judgment; a continuation of which, in the same spirit, and with the same qualities (besides some others that are rather too much wanting in it), would be a valuable accession not only to the lawyer's, but philosopher's library. That entails had been defeated by means of a common recovery before the statute, had been remarked by former writers, and is indeed obvious; but the subject was never put in so clear a light as by Mr. Reeves. The principle of breaking down the statute _de donis_ was so little established, or consistently acted upon, in this reign, that in 11 H. 7 the judges held that the donor of an estate-tail might restrain the tenant from suffering a recovery. _Id._ p. 159, from the year-book. [12] It is said by the biographer of Sir Thomas More, that parliament refused the king a subsidy in 1502, which he demanded on account of the marriage of his daughter Margaret, at the advice of More, then but twenty-two years old. "Forthwith Mr. Tyler, one of the privy chamber, that was then present, resorted to the king, declaring that a beardless boy, called More, had done more harm than all the rest, for by his means all the purpose is dashed." This of course displeased Henry, who would not, however, he says, "infringe the ancient liberties of that house, which would have been odiously taken." Wordsworth's _Eccles. Biography_, ii. 66. This story is also told by Roper. [13] Stat. 11 H. 7, c. 10. Bacon says the benevolence was granted by act of parliament, which Hume shows to be a mistake. The preamble of 11 H. 7 recites it to have been "granted by divers of your subjects severally;" and contains a provision, that no heir shall be charged on account of his ancestor's promise. [14] Hall, 502. [15] Turner's _History of England_, iii. 628, from a MS. document. A vast number of persons paid fines for their share in the western rebellion of 1497, from £200 down to 20_s._ Hall, 486. Ellis's _Letters illustrative of English History_, i. 38. [16] 1 H. 8, c. 8. [17] 2 H. 7, c. 3. Rep. 1 H. 8, c. 6. [18] They were convicted by a jury, and afterwards attainted by parliament, but not executed for more than a year after the king's accession. If we may believe Holingshed, the council at Henry VIII.'s accession made restitution to some who had been wronged by the extortion of the late reign;--a singular contrast to their subsequent proceedings! This, indeed, had been enjoined by Henry VII.'s will. But he had excepted from this restitution "what had been done by the course and order of our laws;" which, as Mr. Astle observes, was the common mode of his oppressions. [19] Lord Hubert inserts an acute speech, which he seems to ascribe to More, arguing more acquaintance with sound principles of political economy than was usual in the supposed speaker's age, or even in that of the writer. But it is more probable that this is of his own invention. He has taken a similar liberty on another occasion, throwing his own broad notions of religion into an imaginary speech of some unnamed member of the Commons, though manifestly unsuited to the character of the times. That More gave satisfaction to Wolsey by his conduct in the chair appears by a letter of the latter to the king, in State Papers, temp. H. 8, 1630, p. 124. [20] Roper's _Life of More_; Hall, 656, 672. This chronicler, who wrote under Edward VI., is our best witness for the events of Henry's reign. Grafton is so literally a copyist from him, that it was a great mistake to republish this part of his chronicle in the late expensive, and therefore incomplete, collection; since he adds no one word, and omits only a few ebullitions of protestant zeal which he seems to have considered too warm. Holingshed, though valuable, is later than Hall. Wolsey, the latter observes, gave offence to the Commons, by descanting on the wealth and luxury of the nation, "as though he had repined or disclaimed that any man should fare well, or be well clothed, but himself." But the most authentic memorial of what passed on this occasion has been preserved in a letter from a member of the Commons to the Earl of Surrey (soon after Duke of Norfolk), at that time the king's lieutenant in the north. "Please it your good Lordships to understand, that sithence the beginning of the Parliament, there hath been the greatest and sorest hold in the Lower House for the payment of two shillings of the pound, that ever was seen, I think, in any parliament. This matter hath been debated, and beaten fifteen or sixteen days together. The highest necessity alledged on the King's behalf to us, that ever was heard of; and, on the contrary, the highest poverty confessed, as well by knights, esquires, and gentlemen of every quarter, as by the commoners, citizens, and burgesses. There hath been such hold that the House was like to have been dissevered; that is to say, the knights being of the King's council, the King's servants and gentlemen of the one party; which in so long time were spoken with, and made to see, yea, it may fortune, contrary to their heart, will, and conscience. Thus hanging this matter, yesterday the more part being the King's servants, gentlemen, were there assembled; and so they, being the more part, willed and gave to the King two shillings of the pound of goods or lands, the best to be taken for the King. All lands to pay two shillings of the pound for the laity, to the highest. The goods to pay two shillings of the pound, for twenty pound upward; and from forty shillings of goods, to twenty pound, to pay sixteen pence of the pound; and under forty shillings, every person to pay eight pence. This to be paid in two years. I have heard no man in my life that can remember that ever there was given to any one of the King's ancestors half so much at one graunt. Nor, I think, there was never such a president seen before this time. I beseeke Almighty God, it may be well and peaceably levied, and surely payd unto the King's grace, without grudge, and especially without loosing the good will and true hearts of his subjects, which I reckon a far greater treasure for the King than gold and silver. And the gentlemen that must take pains to levy this money among the King's subjects, I think, shall have no little business about the same." Strype's _Eccles. Memorials_, vol. i. p. 49. This is also printed in Ellis's _Letters illustrative of English History_, i. 220. [21] I may notice here a mistake of Mr. Hume and Dr. Lingard. They assert Henry to have received tonnage and poundage several years before it was vested in him by the legislature. But it was granted by his first parliament, stat. 1 H. 8, c. 20, as will be found even in Ruffhead's table of contents, though not in the body of his volume; and the act is of course printed at length in the great edition of the statutes. That which probably by its title gave rise to the error, 6 H. 8, c. 13, has a different object. [22] Hall, 645. This chronicler says the laity were assessed at a tenth part. But this was only so of the smaller estates, namely, from £20 to £300; for from £300 to £1000 the contribution demanded was twenty marks for each £100, and for an estate of £1000, two hundred marks, and so in proportion upwards. MS. Instructions to Commissioners, penes auctorem. This was, "upon sufficient promise and assurance, to be repaid unto them upon such grants and contributions as shall be given and granted to his grace at his next parliament."--_Ib._ "And they shall practise by all the means to them possible that such sums as shall be so granted by the way of loan, be forthwith levied and paid, or the most part, or at the least the moiety thereof, the same to be paid in as brief time after as they can possibly persuade and induce them unto; showing unto them that, for the sure payment thereof, they shall have writings delivered unto them under the king's privy seal by such person or persons as shall be deputed by the king to receive the said loan, after the form of a minute to be shown unto them by the said commissioners, the tenor whereof is thus: We, Henry VIII., by the grace of God, King of England and of France, Defender of Faith, and Lord of Ireland, promise by these presents truly to content and repay unto our trusty and well-beloved subject A. B. the sum of ----, which he hath lovingly advanced unto us by way of loan, for defence of our realm, and maintenance of our wars against France and Scotland; In witness whereof we have caused our privy seal hereunto to be set and annexed the ---- day of ----, the fourteenth year of our reign."--_Ib._ The rate fixed on the clergy I collect by analogy, from that imposed in 1525, which I find in another manuscript letter. [23] A letter in my possession from the Duke of Norfolk to Wolsey, without the date of the year, relates, I believe, to this commission of 1525, rather than that of 1522; it being dated on the 10th April, which appears from the contents to have been before Easter; whereas Easter did not fall beyond that day in 1523 or 1524, but did so in 1525; and the first commission, being of the 14th year of the king's reign, must have sat later than Easter 1522. He informs the cardinal, that from twenty pounds upward there were not twenty in the county of Norfolk who had not consented. "So that I see great likelihood that this grant shall be much more than the loan was." It was done, however, very reluctantly, as he confesses; "assuring your grace that they have not granted the same without shedding of many salt tears, only for doubt how to find money to content the king's highness." The resistance went further than the duke thought fit to suppose; for in a very short time the insurrection of the common people took place in Suffolk. In another letter from him and the Duke of Suffolk to the cardinal they treat this rather lightly, and seem to object to the remission of the contribution. This commission issued soon after the news of the battle of Pavia arrived. The pretext was the king's intention to lead an army into France. Warham wrote more freely than the Duke of Norfolk as to the popular discontent, in a letter to Wolsey, dated April 5. "It hath been showed me in a secret manner of my friends, the people sore grudgeth and murmureth, and speaketh cursedly among themselves, as far as they dare, saying that they shall never have rest of payments as long as some liveth, and that they had better die than to be thus continually handled, reckoning themselves, their children, and wives, as despoulit, and not greatly caring what they do, or what becomes of them.... Further I am informed, that there is a grudge newly now resuscitate, and revived in the minds of the people; for the loan is not repaid to them upon the first receipt of the grant of parliament, as it was promised them by the commissioners, showing them the king's grace's instructions, containing the same, signed with his grace's own hand in summer, that they fear not to speak, that they be continually beguiled, and no promise is kept unto them; and thereupon some of them suppose that if this gift and grant be once levied, albeit the king's grace go not beyond the sea, yet nothing shall be restored again, albeit they be showed the contrary. And generally it is reported unto me, that for the most part every man saith he will be contented if the king's grace have as much as he can spare, but verily many say they be not able to do as they be required. And many denieth not but they will give the king's grace according to their power, but they will not anywise give at other men's appointments, which knoweth not their needs.... I have heard say, moreover, that when the people be commanded to make fires and tokens of joy for the taking of the French king, divers of them have spoken that they have more cause to weep than to rejoice thereat. And divers, as it hath been showed me secretly, have wished openly that the French king were at his liberty again, so as there were a good peace, and the king should not attempt to win France; the winning whereof should be more chargeful to England than profitable, and the keeping thereof much more chargeful than the winning. Also it hath been told me secretly that divers have recounted and repeated what infinite sums of money the king's grace hath spent already in invading France, once in his own royal person, and two other sundry times by his several noble captains, and little or nothing in comparison of his costs hath prevailed; insomuch that the king's grace at this hour hath not one foot of land more in France than his most noble father had, which lacked no riches or wisdom to win the kingdom of France, if he had thought it expedient." The archbishop goes on to observe, rather oddly, that "he would that the time had suffered that this practising with the people for so great sums might have been spared till the cuckow time and the hot weather (at which time mad brains be wont to be most busy) had been overpassed." Warham dwells, in another letter, on the great difficulty the clergy had in making so large a payment as was required of them, and their unwillingness to be sworn as to the value of their goods. The archbishop seems to have thought it passing strange that people would be so wrongheaded about their money. "I have been," he says, "in this shire twenty years and above, and as yet I have not seen men but would be conformable to reason, and would be induced to good order, till this time; and what shall cause them now to fall into these wilful and indiscreet ways, I cannot tell, except poverty and decay of substance be the cause of it." [24] Hall, 696. These expressions, and numberless others might be found, show the fallacy of Hume's hasty assertion, that the writers of the sixteenth century do not speak of their own government as more free than that of France. [25] Hall, 699. [26] The word impeachment is not very accurately applicable to these proceedings against Wolsey; since the articles were first presented to the Upper House, and sent down to the Commons, where Cromwell so ably defended his fallen master that nothing was done upon them. "Upon this honest beginning," says Lord Herbert, "Cromwell obtained his first reputation." I am disposed to conjecture from Cromwell's character and that of the House of Commons, as well as from some passages of Henry's subsequent behaviour towards the cardinal, that it was not the king's intention to follow up this prosecution, at least for the present. This also I find to be Dr. Lingard's opinion. [27] _Rot. Parl._ vi. 164; Burnet, Appendix, No. 31. "When this release of the loan," says Hall, "was known to the commons of the realm, Lord! so they grudged and spake ill of the whole parliament; for almost every man counted it his debt, and reckoned surely of the payment of the same, and therefore some made their wills of the same, and some other did set it over to other for debt; and so many men had loss by it, which caused them sore to murmur, but there was no remedy."--P. 767. [28] Stat. 35 H. 8, c. 12. I find in a manuscript, which seems to have been copied from an original in the exchequer, that the monies thus received by way of loan in 1543 amounted to £110,147 15_s._ 8_d._ There was also a sum called _devotion money_, amounting only to £1,093 8_s._ 3_d._, levied in 1544, "of the devotion of his highnesse's subjects for _Defence of Christendom against the Turk_." [29] Lodge's _Illustrations of British History_, i. 711; Strype's _Eccles. Memorials_, Appendix, n. 119. The sums raised from different counties for this benevolence afford a sort of criterion of their relative opulence. Somerset gave £6807; Kent £6471; Suffolk £4512; Norfolk £4046; Devon £4527; Essex £5051; but Lancaster only £660; and Cumberland, £574. The whole produced £119,581 7_s._ 6_d._ besides arrears. In Haynes's _State Papers_, p. 54, we find a curious minute of Secretary Paget, containing reasons why it was better to get the money wanted by means of a benevolence than through parliament. But he does not hint at any difficulty of obtaining a parliamentary grant. [30] Lodge, p. 80. Lord Herbert mentions this story, and observes, that Reed having been taken by the Scots, was compelled to pay much more for his ransom than the benevolence required of him. [31] Rhymer, xv. 84. These commissions bearing date 5th January 1546. [32] Hall, 622. Hume, who is favourable to Wolsey, says, "There is no reason to think the sentence against Buckingham unjust." But no one who reads the trial will find any evidence to satisfy a reasonable mind; and Hume himself soon after adds, that his crime proceeded more from indiscretion than deliberate malice. In fact, the condemnation of this great noble was owing to Wolsey's resentment, acting on the savage temper of Henry. [33] Several letters that passed between the council and Duke of Norfolk (_Hardwicke State Papers_, i. 28, etc.) tend to confirm what some historians have hinted, that he was suspected of leaning too favourably towards the rebels. The king was most unwilling to grant a free pardon. Norfolk is told, "If you could, by any good means or possible dexterity, reserve a very few persons for punishments, you should assuredly administer the greatest pleasure to his highness that could be imagined, and much in the same advance your own honour."--P. 32. He must have thought himself in danger from some of these letters, which indicate the king's distrust of him. He had recommended the employment of men of high rank as lords of the marches, instead of the rather inferior persons whom the king had lately chosen. This called down on him rather a warm reprimand (p. 39); for it was the natural policy of a despotic court to restrain the ascendency of great families; nor were there wanting very good reasons for this, even if the public weal had been the sole object of Henry's council. See also, for the subject of this note, the State Papers and MSS., H. 8, 1830, p. 518 _et alibi_. They contain a good deal of interesting matter as to the northern rebellion, which gave Henry a pretext for great severities towards the monasteries in that part of England. [34] Pole, at his own solicitation, was appointed legate to the Low Countries in 1537, with the sole object of keeping alive the flame of the northern rebellion, and exciting foreign powers as well as the English nation to restore religion by force, if not to dethrone Henry. It is difficult not to suspect that he was influenced by ambitious views in a proceeding so treasonable, and so little in conformity with his polished manners and temperate life. Philips, his able and artful biographer, both proves and glories in the treason. _Life of Pole_, sect. 3. [35] Coke's 4th Institute, 37. It is, however, said by Lord Herbert and others, that the Countess of Salisbury and the Marchioness of Exeter were not heard in their defence. The acts of attainder against them were certainly hurried through parliament; but whether without hearing the parties, does not appear. [36] Burnet observes, that Cranmer was absent the first day the bill was read, 17th June 1540; and by his silence leaves the reader to infer that he was so likewise on 19th June, when it was read a second and third time. But this, I fear, cannot be asserted. He is marked in the journal as present on the latter day; and there is the following entry; "Hodie lecta est pro secundo et tertio, billa attincturæ Thomæ Comitis Essex, et communi omnium procerum tunc præsentium concessu nemine discrepante, expedita est." And at the close of the session, we find a still more remarkable testimony to the unanimity of parliament, in the following words: "Hoc animadvertendum est, quod in hac sessione cum proceres darent suffragia, et dicerent sententias super actibus prædictis, ea erat concordia et sententiarum conformitas, ut singuli iis et eorum singulis assenserint, nemine discrepante. Thomas de Soulemont, Cleric. Parliamentorum." As far therefore as entries on the journals are evidence, Cranmer was placed in the painful and humiliating predicament of voting for the death of his innocent friend. He had gone as far as he dared in writing a letter to Henry, which might be construed into an apology for Cromwell, though it was full as much so for himself. [37] Burnet has taken much pains with the subject, and set her innocence in a very clear light (i. 197 and iii. 114). See also Strype, i. 280, and Ellis's _Letters_, ii. 52. But Anne had all the failings of a vain, weak woman, raised suddenly to greatness. She behaved with unamiable vindictiveness towards Wolsey, and perhaps (but this worst charge is not fully authenticated) exasperated the king against More. A remarkable passage in Cavendish's _Life of Wolsey_, p. 103, edit. 1667, strongly displays her indiscretion. A late writer, whose acuteness and industry would raise him to a very respectable place among our historians, if he could have repressed the inveterate partiality of his profession, has used every oblique artifice to lead his readers into a belief of Anne Boleyn's guilt, while he affects to hold the balance, and state both sides of the question without determining it. Thus he repeats what he must have known to be the strange and extravagant lies of Sanders about her birth; without vouching for them indeed, but without any reprobation of their absurd malignity. Lingard's _Hist. of England_, vi. 153 (8vo. edit). Thus he intimates that "the records of her trial and conviction have perished, perhaps by the hands of those who respected her memory" (p. 316); though, had he read Burnet with any care, he would have found that they were seen by that historian, and surely have not perished since by any unfair means; not to mention that the record of a trial contains nothing from which a party's guilt or innocence can be inferred. Thus he says that those who were executed on the same charge with the queen, neither admitted nor denied the offence, for which they suffered; though the best informed writers assert that Norris constantly declared the queen's innocence and his own. Dr. Lingard can hardly be thought serious, when he takes credit to himself, in the commencement of a note at the end of the same volume, for not "rendering his book more interesting, by representing her as an innocent and injured woman, falling a victim to the intrigues of a religious faction." He well knows that he could not have done so, without contradicting the tenor of his entire work, without ceasing, as it were, to be himself. All the rest of this note is a pretended balancing of evidence, in the style of a judge who can hardly bear to put for a moment the possibility of a prisoner's innocence. I regret very much to be compelled, in this edition, to add the name of Mr. Sharon Turner to those who have countenanced the supposition of Anne Boleyn's guilt. But Mr. Turner, a most worthy and painstaking man, to whose earlier writings our literature is much indebted, has, in his history of Henry VIII., gone upon the strange principle of exalting that tyrant's reputation at the expense of every one of his victims, to whatever party they may have belonged. _Odit damnatos._ Perhaps he is the first, and will be the last, who has defended the attainder of Sir Thomas More. A verdict of a jury, an assertion of a statesman, a recital of an act of parliament, are, with him, satisfactory proofs of the most improbable accusations against the most blameless character. [38] The lords pronounced a singular sentence, that she should be burned or beheaded at the king's pleasure. Burnet says the judges complained of this as unprecedented. Perhaps in strictness the king's right to _alter_ a sentence is questionable, or rather would be so, if a few precedents were out of the way. In high treason committed by a man, the beheading was part of the sentence, and the king only remitted the more cruel preliminaries. Women, till 1791, were condemned to be burned. But the two queens of Henry, the Countess of Salisbury, Lady Rochford, Lady Jane Grey, and, in later times, Mrs. Lisle, were beheaded. Poor Mrs. Gaunt was not thought noble enough to be rescued from the fire. In felony, where beheading is no part of the sentence, it has been substituted by the king's warrant in the cases of the Duke of Somerset and Lord Audley. I know not why the latter obtained this favour; for it had been refused to Lord Stourton, hanged for murder under Mary, as it was afterwards to Earl Ferrers. [39] It is often difficult to understand the grounds of a parliamentary attainder, for which any kind of evidence was thought sufficient; and the strongest proofs against Catherine Howard undoubtedly related to her behaviour before marriage, which could be no legal crime. But some of the depositions extend further. Dr. Lingard has made a curious observation on this case. "A plot was woven by the industry of the reformers, which brought the young queen to the scaffold, and weakened the ascendency of the reigning party."--P. 407. This is a very strange assertion; for he proceeds to admit her ante-nuptial guilt, which indeed she is well known to have confessed, and does not give the slightest proof of any plot. Yet he adds, speaking of the queen and Lady Rochford: "I fear [_i.e._ wish to insinuate] both were sacrificed to the manes of Anne Boleyn." [40] Stat. 26 H. 8, c. 13. It may be here observed, that the act attainting Catherine Howard of treason proceeds to declare that the king's assent to bills by commission under the great seal is as valid as if he were personally present; any custom or use to the contrary notwithstanding. 33 H. 8, c. 21. This may be presumed therefore to be the earliest instance of the king's passing bills in this manner. [41] 22 H. 8, c. 18. [42] 28 H. 8, c. 7. [43] 35 H. 8, c. 1. [44] 28 H. 8, c. 17. [45] 31 H. 8, c. 8; Burnet, i. 263, explains the origin of this act. Great exceptions had been taken to some of the king's ecclesiastical proclamations, which altered laws, and laid taxes on spiritual persons. He justly observes that the restrictions contained in it gave great power to the judges, who had the power of expounding in their hands. The preamble is full as offensive as the body of the act; reciting the contempt and disobedience of the king's proclamations by some "who did not consider _what a king by his royal power might do_, which if it continued would tend to the disobedience of the laws of God, and the dishonour of the king's majesty, who might full ill bear it," etc. See this act at length in the great edition of the statutes. There was one singular provision; the clause protecting all persons, as mentioned, in their inheritance or other property, proceeds, "nor shall by virtue of the said act suffer any pains of death." But an exception is afterwards made for "such persons which shall offend against any proclamation to be made by the king's highness, his heirs or successors, for or concerning any kind of heresies against Christian doctrine." Thus it seems that the king claimed a power to declare heresy by proclamation, under penalty of death. [46] Gray has finely glanced at this bright point of Henry's character, in that beautiful stanza where he has made the founders of Cambridge pass before our eyes, like shadows over a magic glass: "the majestic lord, Who broke the bonds of Rome." In a poet, this was a fair employment of his art; but the partiality of Burnet towards Henry VIII. is less warrantable; and he should have blushed to excuse, by absurd and unworthy sophistry, the punishment of those who refused to swear to the king's supremacy. P. 351. After all, Henry was every whit as good a king and man as Francis I., whom there are still some, on the other side of the Channel, servile enough to extol; not in the least more tyrannical and sanguinary, and of better faith towards his neighbours. [47] 1 Edw. 6, c. 12. By this act it is provided that a lord of parliament shall have the benefit of clergy though he cannot read. Sect. 14. Yet one can hardly believe, that this provision was necessary at so late an æra. [48] 2 Strype, 147, 341, 491. [49] _Id._ 149. Dr. Lingard has remarked an important change in the coronation ceremony of Edward VI. Formerly, the king had taken an oath to preserve the liberties of the realm, and especially those granted by Edward the Confessor, etc., before the people were asked whether they would consent to have him as their king. See the form observed at Richard the Second's coronation in Rymer, vii. 158. But at Edward's coronation, the archbishop presented the king to the people, as rightful and undoubted inheritor by the laws of God and man to the royal dignity and crown imperial of this realm, etc., and asked if they would serve him and assent to his coronation, as by their duty of allegiance they were bound to do. All this was before the oath. 2 Burnet, Appendix, p. 93. Few will pretend that the coronation, or the coronation oath, were essential to the legal succession of the crown, or the exercise of its prerogatives. But this alteration in the form is a curious proof of the solicitude displayed by the Tudors, as it was much more by the next family, to suppress every recollection that could make their sovereignty appear to be of popular origin. [50] Haynes's state papers contain many curious proofs of the incipient amour between Lord Seymour and Elizabeth, and show much indecent familiarity on one side, with a little childish coquetry on the other. These documents also rather tend to confirm the story of our elder historians, which I have found attested by foreign writers of that age (though Burnet has thrown doubts upon it), that some differences between the queen-dowager and the Duchess of Somerset aggravated at least those of their husbands. P. 61, 69. It is alleged with absurd exaggeration, in the articles against Lord Seymour, that, had the former proved immediately with child after her marriage with him, it might have passed for the king's. This marriage, however, did not take place before June, Henry having died in January. Ellis's _Letters_, ii. 150. [51] Journals, Feb. 27, March 4, 1548-9. From these I am led to doubt whether the commons actually heard witnesses against Seymour, which Burnet and Strype have taken for granted. [52] Stat. 5 and 6 Edw. VI., c. 11, s. 12. [53] Burnet, ii. 243. An act was made to confirm deeds of private persons, dated during Jane's ten days, concerning which some doubt had arisen. 1 Mary, sess. 2, c. 4. It is said in this statute, "her highness's most lawful possession was for a time disturbed and disquieted by traiterous rebellion and usurpation." It appears that the young king's original intention was to establish a modified Salic law, excluding females from the crown, but not their male heirs. In a writing drawn by himself, and entitled "My Device for the Succession," it is entailed on the heirs male of the lady queen, if she have any before his death; then to the _Lady Jane and her heirs male_; then to the heirs male of Lady Katharine; and in every instance, except Jane, excluding the female herself. Strype's _Cranmer_, Append. 164. A late author, on consulting the original MS., in the king's handwriting, found that it had been at first written, "the Lady Jane's heirs male," but that the words "and her" had been interlined. Nares's _Memoirs of Lord Burghley_, i. 451. Mr. Nares does not seem to doubt but that this was done by Edward himself: the change, however, is remarkable, and should probably be ascribed to Northumberland's influence. [54] Burnet, Strype, iii. 50, 53; Carte, 290. I doubt whether we have anything in our history more like conquest than the administration of 1553. The queen, in the month only of October, presented to 256 livings, restoring all those turned out under the acts of uniformity. Yet the deprivation of the bishops might be justified probably by the terms of the commission they had taken out in Edward's reign, to hold their sees during the king's pleasure, for which was afterwards substituted "during good behaviour." Burnet, App. 257; Collier, 218. [55] Burnet, ii. 278; Stat. 1 Mary, sess. 3, c. 1. Dr. Lingard rather strangely tells this story on the authority of Father Persons, whom his readers probably do not esteem quite as much as he does. If he had attended to Burnet, he would have found a more sufficient voucher. [56] Carte, 330. [57] Haynes, 195; Burnet, ii. Appendix, 256, iii. 243. [58] Burnet, ii. 347. Collier, ii. 404, and Lingard, vii. 266 (who, by the way, confounds this commission with something different two years earlier) will not hear of this allusion to the inquisition. But Burnet has said nothing that is not perfectly just. [59] Strype, iii. 459. [60] See Stafford's proclamation from Scarborough Castle, Strype, iii. Appendix, No. 71. It contains no allusion to religion, both parties being weary of Mary's Spanish counsels. The important letters of Noailles, the French ambassador, to which Carte had access, and which have since been printed, have afforded information to Dr. Lingard, and with those of the imperial ambassador, Renard, which I have not had an opportunity of seeing, throw much light on this reign. They certainly appear to justify the restraint put on Elizabeth, who, if not herself privy to the conspiracies planned in her behalf (which is, however, very probable), was at least too dangerous to be left at liberty. Noailles intrigued with the malcontents, and instigated the rebellion of Wyatt, of which Dr. Lingard gives a very interesting account. Carte, indeed, differs from him in many of these circumstances, though writing from the same source, and particularly denies that Noailles gave any encouragement to Wyatt. It is, however, evident from the tenor of his despatches that he had gone great lengths in fomenting the discontent, and was evidently desirous of the success of the insurrection (iii. 36, 43, etc.). This critical state of the government may furnish the usual excuse for its rigour. But its unpopularity was brought on by Mary's breach of her word as to religion, and still more by her obstinacy in forming her union with Philip against the general voice of the nation, and the opposition of Gardiner; who, however, after her resolution was taken, became its strenuous supporter in public. For the detestation in which the queen was held, see the letters of Noailles, _passim_; but with some degree of allowance for his own antipathy to her. [61] Burnet, i. 117. The king refused his assent to a bill which had passed both houses, but apparently not of a political nature. _Lords' Journals_, p. 162. [62] Burnet, 190. [63] _Id._ 195, 215. This was the parliament, in order to secure favourable elections for which the council had written letters to the sheriffs. These do not appear to have availed so much as they might hope. [64] Carte, 311, 322; Noailles, v. 252. He says that she committed some knights to the Tower for their language in the house. _Id._ 247. Burnet, p. 324, mentions the same. [65] Burnet, 322; Carte, 296. Noailles says, that a third part of the Commons in Mary's first parliament was hostile to the repeal of Edward's laws about religion, and that the debates lasted a week. ii. 247. The journals do not mention any division; though it is said in Strype, iii. 204, that one member, Sir Ralph Bagnal, refused to concur in the act abolishing the supremacy. The queen, however, in her letter to Cardinal Pole, says of this repeal: "Quod non sine contentione, disputatione acri, et summo labore fidelium factum est." Lingard, Carte, Philips's _Life of Pole_. Noailles speaks repeatedly of the strength of the protestant party, and of the enmity which the English nation, as he expresses it, bore to the pope. But the aversion to the marriage with Philip, and dread of falling under the yoke of Spain, was common to both religions, with the exception of a few mere bigots to the church of Rome. [66] Noailles, vol. 5, _passim_. [67] Strype, ii. 394. [68] Strype, iii. 155; Burnet, ii. 228. [69] Burnet, ii. 262, 277. [70] Noailles, v. 190. Of the truth of this plot there can be no rational ground to doubt; even Dr. Lingard has nothing to advance against it but the assertion of Mary's counsellors, the Pagets and Arundels, the most worthless of mankind. We are, in fact, greatly indebted to Noailles for his spirited activity, which contributed, in a high degree, to secure both the protestant religion and the national independence of our ancestors. [71] Henry VII. first established a band of fifty archers to wait on him. Henry VIII. had fifty horse-guards, each with an archer, demilance and couteiller, like the gendarmerie of France; but on account, probably, of the expense it occasioned, their equipment being too magnificent, this soon was given up. [72] _View of Middle Ages_, ch. 8. I must here acknowledge, that I did not make the requisite distinction between the concilium secretum, or privy council of state, and the concilium ordinarium, as Lord Hale calls it, which alone exercised jurisdiction. [73] _Commonwealth of England_, book 3, c. 1. The statute 26 H. 8, c. 4 enacts, that if a jury in Wales acquit a felon, contrary to good and pregnant evidence, or otherwise misbehave themselves, the judge may bind them to appear before the president and council of the Welsh marches. The partiality of Welsh jurors was notorious in that age; and the reproach has not quite ceased. [74] _State Trials_, i. 901; Strype, ii. 120. In a letter to the Duke of Norfolk (_Hardwicke Papers_, i. 46) at the time of the Yorkshire rebellion in 1536, he is directed to question the jury who had acquitted a particular person, in order to discover their motive. Norfolk seems to have objected to this for a good reason, "least the fear thereof might trouble others in the like case." But it may not be uncandid to ascribe this rather to a leaning towards the insurgents than a constitutional principle. [75] _Hale's Jurisdiction of the Lords' House_, p. 5. Coke, 4th Inst. 65, where we have the following passage: "So this court [the court of star-chamber, as the concilium was then called] being holden coram rege et concilio, it is, or may be, compounded of three several councils; that is to say, of the lords and others of his majesty's privy council, always judges without appointment, as before it appeareth. 2. The judges of either bench and barons of the exchequer are of the king's council, for matters of law, etc., and the two chief justices, or in their absence other two justices, are standing judges of this court. 3. The lords of parliament are properly de magno concilio regis; but neither those, not being of the king's privy council, nor any of the rest of the judges or barons of the exchequer are standing judges of the court." But Hudson, in his _Treatise of the Court of Star-chamber_, written about the end of James's reign, inclines to think that all peers had a right of sitting in the court of star-chamber; there being several instances where some who were not of the council of state were present and gave judgment, as in the case of Mr. Davison, "and how they were complete judges unsworn, if not by their native right, I cannot comprehend; for surely the calling of them in that case was not made legitimate by any act of parliament; neither without their right were they more apt to be judges than any other inferior persons in the kingdom; and yet I doubt not but it resteth in the king's pleasure to restrain any man from that table, as well as he may any of his council from the board." _Collectanea Juridica_, ii. p. 24. He says also, that it was demurrable for a bill to pray process against the defendant, to appear before the king and his privy council. _Ibid._ [76] The privy council sometimes met in the star-chamber, and made orders. See one in 18 H. 6, Harl. MSS. Catalogue, N. 1878, fol. 20. So the statute, 21 H. 8, c. 16, recites a decree _by the king's council in his star-chamber_, that no alien artificer shall keep more than two alien servants, and other matters of the same kind. This could no way belong to the court of star-chamber, which was a judicial tribunal. It should be remarked, though not to our immediate purpose, that this decree was supposed to require an act of parliament for its confirmation; so far was the government of Henry VIII. from arrogating a legislative power in matters of private right. [77] Lord Hale thinks that the jurisdiction of the council was gradually "brought into great disuse, though there remain some straggling footsteps of their proceedings till near 3 H. 7."--P. 38. "The continual complaints of the commons against the proceedings before the council in causes civil or criminal, although they did not always attain their concession, yet brought a disreputation upon the proceedings of the council, as contrary to Magna Charta and the known laws."--P. 39. He seems to admit afterwards, however, that many instances of proceedings before them in criminal causes might be added to those mentioned by Lord Coke. P. 43. The paucity of records about the time of Edward IV. renders the negative argument rather weak; but, from the expression of Sir Thomas Smith in the text, it may perhaps be inferred that the council had intermitted in a considerable degree, though not absolutely disused, their exercise of jurisdiction for some time before the accession of the house of Tudor. Mr. Brodie, in his _History of the British Empire under Charles I._, i. 158, has treated at considerable length, and with much acuteness, this subject of the antiquity of the star-chamber. I do not coincide in all his positions; but the only one very important, is that wherein we fully agree, that its jurisdiction was chiefly usurped, as well as tyrannical. I will here observe that this part of our ancient constitutional history is likely to be elucidated by a friend of my own, who has already given evidence to the world of his singular competence for such an undertaking, and who unites, with all the learning and diligence of Spelman, Prynne, and Madox, an acuteness and vivacity of intellect which none of those writers possessed. [78] _Commonwealth of England_, book 3, c. 4. We find Sir Robert Sheffield in 1517 "put into the Tower again for the complaint he made to the king of my lord cardinal." Lodge's _Illustrations_, i. p. 27. See also Hall, p. 585, for Wolsey's strictness in punishing the "lords, knights, and men of all sorts, for riots, bearing, and maintenance." [79] Plowden's _Commentaries,_ 393. In the year-book itself, 8 H. 7, pl. ult. the word star-chamber is not used. It is held in this case, that the chancellor, treasurer, and privy-seal were the only judges, and the rest but assistants. Coke, 4 Inst. 62, denies this to be law; but on no better grounds than that the practice of the star-chamber, that is, of a different tribunal, was not such. [80] _Hist. of Henry VII._ in Bacon's works, ii. p. 290. [81] The result of what has been said in the last pages may be summed up in a few propositions. 1. The court erected by the statute of 3 Henry VII. was not the court of star-chamber. 2. This court by the statute subsisted in full force till beyond the middle of Henry VIII.'s reign, but not long afterwards went into disuse. 3. The court of star-chamber was the old concilium ordinarium, against whose jurisdiction many statutes had been enacted from the time of Edward III. 4. No part of the jurisdiction exercised by the star-chamber could be maintained on the authority of the statute of Henry VII. [82] Burnet, ii. 324. CHAPTER II ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI., AND MARY REFORMATION. _State of public opinion as to religion._--No revolution has ever been more gradually prepared than that which separated almost one-half of Europe from the communion of the Roman see; nor were Luther and Zuingle any more than occasional instruments of that change which, had they never existed, would at no great distance of time have been effected under the names of some other reformers. At the beginning of the sixteenth century, the learned doubtfully and with caution, the ignorant with zeal and eagerness, were tending to depart from the faith and rites which authority prescribed. But probably not even Germany was so far advanced on this course as England. Almost a hundred and fifty years before Luther, nearly the same doctrines as he taught had been maintained by Wicliffe, whose disciples, usually called Lollards, lasted as a numerous, though obscure and proscribed sect, till, aided by the confluence of foreign streams, they swelled into the protestant church of England. We hear indeed little of them during some part of the fifteenth century; for they generally shunned persecution; and it is chiefly through records of persecution that we learn the existence of heretics. But immediately before the name of Luther was known, they seem to have become more numerous, or to have attracted more attention; since several persons were burned for heresy, and others abjured their errors, in the first years of Henry VIII.'s reign. Some of these (as usual among ignorant men engaging in religious speculations) are charged with very absurd notions; but it is not so material to observe their particular tenets as the general fact, that an inquisitive and sectarian spirit had begun to prevail. Those who took little interest in theological questions, or who retained an attachment to the faith in which they had been educated, were in general not less offended than the Lollards themselves with the inordinate opulence and encroaching temper of the clergy. It had been for two or three centuries the policy of our lawyers to restrain these within some bounds. No ecclesiastical privilege had occasioned such dispute, or proved so mischievous, as the immunity of all tonsured persons from civil punishment for crimes. It was a material improvement in the law under Henry VI. that, instead of being instantly claimed by the bishop on their arrest for any criminal charge, they were compelled to plead their privilege at their arraignment, or after conviction. Henry VII. carried this much farther, by enacting that clerks convicted of felony should be burned in the hand. And in 1513 (4 H. 8), the benefit of clergy was entirely taken away from murderers and highway robbers. An exemption was still made for priests, deacons, and subdeacons. But this was not sufficient to satisfy the church, who had been accustomed to shield under the mantle of her immunity a vast number of persons in the lower degrees of orders, or without any orders at all; and had owed no small part of her influence to those who derived so important a benefit from her protection. Hence, besides violent language in preaching against this statute, the convocation attacked one Doctor Standish, who had denied the divine right of clerks to their exemption from temporal jurisdiction. The temporal courts naturally defended Standish; and the parliament addressed the king to support him against the malice of his persecutors. Henry, after a full debate between the opposite parties in his presence, thought his prerogative concerned in taking the same side; and the clergy sustained a mortifying defeat. About the same time, a citizen of London named Hun, having been confined on a charge of heresy in the bishop's prison, was found hanged in his chamber; and though this was asserted to be his own act, yet the bishop's chancellor was indicted for the murder on such vehement presumptions, that he would infallibly have been convicted, had the attorney-general thought fit to proceed in the trial. This occurring at the same time with the affair of Standish, furnished each party with an argument; for the clergy maintained that they should have no chance of justice in a temporal court; one of the bishops declaring, that the London juries were so prejudiced against the church, that they would find Abel guilty of the murder of Cain. Such an admission is of more consequence than whether Hun died by his own hands, or those of a clergyman; and the story is chiefly worth remembering, as it illustrates the popular disposition towards those who had once been the objects of reverence.[83] _Henry VIII.'s controversy with Luther._--Such was the temper of England when Martin Luther threw down his gauntlet of defiance against the ancient hierarchy of the catholic church. But, ripe as a great portion of the people might be to applaud the efforts of this reformer, they were viewed with no approbation by their sovereign. Henry had acquired a fair portion of theological learning, and on reading one of Luther's treatises, was not only shocked at its tenets, but undertook to confute them in a formal answer.[84] Kings who divest themselves of their robes to mingle among polemical writers, have not perhaps a claim to much deference from strangers; and Luther, intoxicated with arrogance, and deeming himself a more prominent individual among the human species than any monarch, treated Henry, in replying to his book, with the rudeness that characterised his temper. A few years afterwards, indeed, he thought proper to write a letter of apology for the language he had held towards the king; but this letter, a strange medley of abjectness and impertinence, excited only contempt in Henry, and was published by him with a severe commentary.[85] Whatever apprehension therefore for the future might be grounded on the humour of the nation, no king in Europe appeared so steadfast in his allegiance to Rome as Henry VIII. at the moment when a storm sprang up that broke the chain for ever. _His divorce from Catherine._--It is certain that Henry's marriage with his brother's widow was unsupported by any precedent and that, although the pope's dispensation might pass for a cure of all defects, it had been originally considered by many persons in a very different light from those unions which are merely prohibited by the canons. He himself, on coming to the age of fourteen, entered a protest against the marriage which had been celebrated more than two years before, and declared his intention not to confirm it; an act which must naturally be ascribed to his father.[86] It is true that in this very instrument we find no mention of the impediment on the score of affinity; yet it is hard to suggest any other objection, and possibly a common form had been adopted in drawing up the protest. He did not cohabit with Catherine during his father's lifetime. Upon his own accession, he was remarried to her; and it does not appear manifest at what time his scruples began, nor whether they preceded his passion for Anne Boleyn.[87] This, however, seems the more probable supposition; yet there can be little doubt, that weariness of Catherine's person, a woman considerably older than himself and unlikely to bear more children, had a far greater effect on his conscience than the study of Thomas Aquinas or any other theologian. It by no means follows from hence that, according to the casuistry of the catholic church and the principles of the canon law, the merits of that famous process were so much against Henry, as out of dislike to him and pity for his queen we are apt to imagine, and as the writers of that persuasion have subsequently assumed. It would be unnecessary to repeat, what is told by so many historians, the vacillating and evasive behaviour of Clement VII., the assurances he gave the king, and the arts with which he receded from them, the unfinished trial in England before his delegates, Campegio and Wolsey, the opinions obtained from foreign universities in the king's favour, not always without a little bribery,[88] and those of the same import at home, not given without a little intimidation, or the tedious continuance of the process after its adjournment to Rome. More than five years had elapsed from the first application to the pope, before Henry, though by nature the most uncontrollable of mankind, though irritated by perpetual chicanery and breach of promise, though stimulated by impatient love, presumed to set at nought the jurisdiction to which he had submitted, by a marriage with Anne. Even this was a furtive step; and it was not till compelled by the consequences that he avowed her as his wife, and was finally divorced from Catherine by a sentence of nullity, which would more decently, no doubt, have preceded his second marriage.[89] But, determined as his mind had become, it was plainly impossible for Clement to have conciliated him by anything short of a decision, which he could not utter without the loss of the emperor's favour and the ruin of his own family's interests in Italy. And even for less selfish reasons, it was an extremely embarrassing measure for the pope, in the critical circumstances of that age, to set aside a dispensation granted by his predecessor; knowing that, however erroneous allegations of fact contained therein might serve for an outward pretext, yet the principle on which the divorce was commonly supported in Europe, went generally to restrain the dispensing power of the holy see. Hence it may seem very doubtful whether the treaty which was afterwards partially renewed through the mediation of Francis I., during his interview with the pope at Nice about the end of 1533, would have led to a restoration of amity through the only possible means; when we consider the weight of the imperial party in the conclave, the discredit that so notorious a submission would have thrown on the church, and, above all, the precarious condition of the Medici at Florence in case of a rupture with Charles V. It was more probably the aim of Clement to delude Henry once more by his promises; but this was prevented by the more violent measure into which the cardinals forced him, of a definitive sentence in favour of Catherine, whom the king was required under pain of excommunication to take back as his wife. This sentence of the 23rd of March 1534, proved a declaration of interminable war; and the king, who, in consequence of the hopes held out to him by Francis, had already despatched an envoy to Rome with his submission to what the pope should decide, now resolved to break off all intercourse for ever, and trust to his own prerogative and power over his subjects for securing the succession to the crown in the line which he designed. It was doubtless a regard to this consideration that put him upon his last overtures for an amicable settlement with the court of Rome.[90] But long before this final cessation of intercourse with that court, Henry had entered upon a course of measures which would have opposed fresh obstacles to a renewal of the connection. He had found a great part of his subjects in a disposition to go beyond all he could wish in sustaining his quarrel, not, in this instance, from mere terror, but because a jealousy of ecclesiastical power, and of the Roman court, had long been a sort of national sentiment in England. The pope's avocation of the process to Rome, by which his duplicity and alienation from the king's side was made evident, and the disgrace of Wolsey, took place in the summer of 1529. The parliament which met soon afterwards was continued through several sessions (an unusual circumstance), till it completed the separation of this kingdom from the supremacy of Rome. In the progress of ecclesiastical usurpation, the papal and episcopal powers had lent mutual support to each other; both consequently were involved in the same odium, and had become the object of restrictions in a similar spirit. Warm attacks were made on the clergy by speeches in the Commons, which Bishop Fisher severely reprehended in the upper house. This provoked the Commons to send a complaint to the king by their speaker, demanding reparation; and Fisher explained away the words that had given offence. An act passed to limit the fees on probates of wills, a mode of ecclesiastical extortion much complained of, and upon mortuaries.[91] The next proceeding was of a far more serious nature. It was pretended, that Wolsey's exercise of authority as papal legate contravened a statute of Richard II., and that both himself and the whole body of the clergy, by their submission to him, had incurred the penalties of a præmunire, that is, the forfeiture of their movable estate, besides imprisonment at discretion. These old statutes in restraint of the papal jurisdiction had been so little regarded, and so many legates had acted in England without objection, that Henry's prosecution of the church on this occasion was extremely harsh and unfair. The clergy, however, now felt themselves to be the weaker party. In convocation they implored the king's clemency, and obtained it by paying a large sum of money. In their petition he was styled the protector and supreme head of the church and clergy of England. Many of that body were staggered at the unexpected introduction of a title that seemed to strike at the supremacy they had always acknowledged in the Roman see. And in the end it passed only with a very suspicious qualification, "so far as is permitted by the law of Christ." Henry had previously given the pope several intimations that he could proceed in his divorce without him. For, besides a strong remonstrance by letter from the temporal peers as well as bishops against the procrastination of sentence in so just a suit, the opinions of English and foreign universities had been laid before both houses of parliament and of convocation, and the divorce approved without difficulty in the former, and by a great majority in the latter. These proceedings took place in the first months of 1531, while the king's ambassadors at Rome were still pressing for a favourable sentence, though with diminished hopes. Next year the annates, or first fruits of benefices, a constant source of discord between the nations of Europe, and their spiritual chief, were taken away by act of parliament, but with a remarkable condition, that if the pope would either abolish the payment of annates, or reduce them to a moderate burthen, the king might declare before next session, by letters patent, whether this act, or any part of it, should be observed. It was accordingly confirmed by letters patent more than a year after it received the royal assent. It is difficult for us to determine whether the pope, by conceding to Henry the great object of his solicitude, could in this stage have not only arrested the progress of the schism, but recovered his former ascendency over the English church and kingdom. But probably he could not have done so in its full extent. Sir Thomas More, who had rather complied than concurred with the proceedings for a divorce, though his acceptance of the great seal on Wolsey's disgrace would have been inconsistent with his character, had he been altogether opposed in conscience to the king's measures, now thought it necessary to resign, when the papal authority was steadily, though gradually, assailed.[92] In the next session an act was passed to take away all appeals to Rome from ecclesiastical courts; which annihilated at one stroke the jurisdiction built on long usage and on the authority of the false decretals. This law rendered the king's second marriage, which had preceded it, secure from being annulled by the papal court. Henry, however, still advanced, very cautiously, and on the death of Warham, Archbishop of Canterbury, not long before this time, applied to Rome for the usual bulls in behalf of Cranmer, whom he nominated to the vacant see. These were the last bulls obtained, and probably the last instance of any exercise of the papal supremacy in this reign. An act followed in the next session, that bishops elected by their chapter on a royal recommendation, should be consecrated, and archbishops receive the pall, without suing for the pope's bulls. All dispensations and licences hitherto granted by that court were set aside by another statute, and the power of issuing them in lawful cases transferred to the Archbishop of Canterbury. The king is in this act recited to be the supreme head of the church of England, as the clergy had two years before acknowledged in convocation. But this title was not formally declared by parliament to appertain to the Crown till the ensuing session of parliament.[93] _Separation from the Church of Rome._--By these means was the church of England altogether emancipated from the superiority of that of Rome. For as to the pope's merely spiritual primacy and authority in matters of faith, which are, or at least were, defended by catholics of the Gallican or Cisalpine school on quite different grounds from his jurisdiction or his legislatorial power in points of discipline, they seem to have attracted little peculiar attention at the time, and to have dropped off as a dead branch, when the axe had lopped the fibres that gave it nourishment. Like other momentous revolutions, this divided the judgment and feelings of the nation. In the previous affair of Catherine's divorce, generous minds were more influenced by the rigour and indignity of her treatment than by the king's inclinations, or the venal opinions of foreign doctors in law. Bellay, Bishop of Bayonne, the French ambassador at London, wrote home in 1528, that a revolt was apprehended from the general unpopularity of the divorce.[94] Much difficulty was found in procuring the judgments of Oxford and Cambridge against the marriage; which was effected in the former case, as is said, by excluding the masters of arts, the younger and less worldly part of the university, from their right of suffrage. Even so late as 1532, in the pliant House of Commons, a member had the boldness to move an address to the king, that he would take back his wife. And this temper of the people seems to have been the great inducement with Henry to postpone any sentence by a domestic jurisdiction, so long as a chance of the pope's sanction remained. The aversion entertained by a large part of the community, and especially of the clerical order, towards the divorce, was not perhaps so generally founded upon motives of justice and compassion, as on the obvious tendency which its prosecution latterly manifested to bring about a separation from Rome. Though the principal Lutherans of Germany were far less favourably disposed to the king in their opinions on this subject than the catholic theologians, holding that the prohibition of marrying a brother's widow in the Levitical law was not binding on Christians, or at least that the marriage ought not to be annulled after so many years' continuance;[95] yet in England the interests of Anne Boleyn and of the Reformation were considered as the same. She was herself strongly suspected of an inclination to the new tenets; and her friend Cranmer had been the most active person both in promoting the divorce, and the recognition of the king's supremacy. The latter was, as I imagine, by no means unacceptable to the nobility and gentry, who saw in it the only effectual method of cutting off the papal exactions that had so long impoverished the realm; nor yet to the citizens of London, and other large towns, who, with the same dislike of the Roman court, had begun to acquire some taste for the protestant doctrine. But the common people, especially in remote counties, had been used to an implicit reverence for the holy see, and had suffered comparatively little by its impositions. They looked up also to their own teachers as guides in faith; and the main body of the clergy was certainly very reluctant to tear themselves, at the pleasure of a disappointed monarch, in the most dangerous crisis of religion, from the bosom of catholic unity.[96] They complied indeed with all the measures of government far more than men of rigid conscience could have endured to do; but many who wanted the courage of More and Fisher, were not far removed from their way of thinking.[97] This repugnance to so great an alteration showed itself, above all, in the monastic orders, some of whom by wealth, hospitality, and long-established dignity, others by activity in preaching and confessing, enjoyed a very considerable influence over the poorer class. But they had to deal with a sovereign, whose policy as well as temper dictated that he had no safety but in advancing; and their disaffection to his government, while it overwhelmed them in ruin, produced a second grand innovation in the ecclesiastical polity of England. _Dissolution of monasteries._--The enormous, and in a great measure ill-gotten, opulence of the regular clergy had long since excited jealousy in every part of Europe. Though the statutes of mortmain under Edward I. and Edward III. had put some obstacle to its increase, yet as these were eluded by licences of alienation, a larger proportion of landed wealth was constantly accumulating, in hands which lost nothing that they had grasped.[98] A writer much inclined to partiality towards the monasteries says that they held not one-fifth part of the kingdom; no insignificant patrimony! He adds, what may probably be true, that through granting easy leases, they did not enjoy more than one-tenth in value.[99] These vast possessions were very unequally distributed among four or five hundred monasteries. Some abbots, as those of Reading, Glastonbury, and Battle, lived in princely splendour, and were in every sense the spiritual peers and magnates of the realm. In other foundations, the revenues did little more than afford a subsistence for the monks, and defray the needful expenses. As they were in general exempted from episcopal visitation, and intrusted with the care of their own discipline, such abuses had gradually prevailed and gained strength by connivance, as we may naturally expect in corporate bodies of men leading almost of necessity useless and indolent lives, and in whom very indistinct views of moral obligations were combined with a great facility of violating them. The vices that for many ages had been supposed to haunt the monasteries, had certainly not left their precincts in that of Henry VIII. Wolsey, as papal legate, at the instigation of Fox, Bishop of Hereford, a favourer of the Reformation, commenced a visitation of the professed as well as secular clergy in 1523, in consequence of the general complaint against their manners.[100] This great minister, though not perhaps very rigid as to the morality of the church, was the first who set an example of reforming monastic foundations in the most efficacious manner, by converting their revenues to different purposes. Full of anxious zeal for promoting education, the noblest part of his character, he obtained bulls from Rome suppressing many convents (among which was that of St. Frideswide at Oxford), in order to erect and endow a new college in that university, his favourite work, which after his fall was more completely established by the name of Christ Church.[101] A few more were afterwards extinguished through his instigation; and thus the prejudice against interference with this species of property was somewhat worn off, and men's minds gradually prepared for the sweeping confiscations of Cromwell. The king indeed was abundantly willing to replenish his exchequer by violent means, and to avenge himself on those who gainsayed his supremacy; but it was this able statesman who, prompted both by the natural appetite of ministers for the subject's money and by a secret partiality towards the Reformation, devised and carried on with complete success, if not with the utmost prudence, a measure of no inconsiderable hazard and difficulty. For such it surely was, under a system of government which rested so much on antiquity, and in spite of the peculiar sacredness which the English attach to all freehold property, to annihilate so many prescriptive baronial tenures, the possessors whereof composed more than a third part of the House of Lords, and to subject so many estates which the law had rendered inalienable, to maxims of escheat and forfeiture that had never been held applicable to their tenure. But for this purpose it was necessary, by exposing the gross corruptions of monasteries, both to intimidate the regular clergy, and to excite popular indignation against them. It is not to be doubted that in the visitation of these foundations under the direction of Cromwell, as lord vicegerent of the king's ecclesiastical supremacy, many things were done in an arbitrary manner, and much was unfairly represented.[102] Yet the reports of these visitors are so minute and specific that it is rather a preposterous degree of incredulity to reject their testimony, whenever it bears hard on the regulars. It is always to be remembered that the vices to which they bear witness, are not only probable from the nature of such foundations, but are imputed to them by the most respectable writers of preceding ages. Nor do I find that the reports of this visitation were impeached for general falsehood in that age, whatever exaggeration there might be in particular cases. And surely the commendation bestowed on some religious houses as pure and unexceptionable, may afford a presumption that the censure of others was not an indiscriminate prejudging of their merits.[103] The dread of these visitors soon induced a number of abbots to make surrenders to the king; a step of very questionable legality. But in the next session the smaller convents, whose revenues were less than £200 a year, were suppressed by act of parliament, to the number of three hundred and seventy-six, and their estates vested in the crown. This summary spoliation led to the great northern rebellion soon afterwards. It was, in fact, not merely to wound the people's strongest impressions of religion, and especially those connected with their departed friends, for whose souls prayers were offered in the monasteries, but to deprive the indigent, in many places, of succour, and the better rank of hospitable reception. This of course was experienced in a far greater degree at the dissolution of the larger monasteries, which took place in 1540. But, Henry having entirely subdued the rebellion, and being now exceedingly dreaded by both the religious parties, this measure produced no open resistance; though there seems to have been less pretext for it on the score of immorality and neglect of discipline than was found for abolishing the smaller convents.[104] These great foundations were all surrendered; a few excepted, which, against every principle of received law, were held to fall by the attainder of their abbots for high treason. Parliament had only to confirm the king's title arising out of these surrenders and forfeitures. Some historians assert the monks to have been turned adrift with a small sum of money. But it rather appears that they generally received pensions not inadequate, and which are said to have been pretty faithfully paid.[105] These however were voluntary gifts on the part of the Crown. For the parliament which dissolved the monastic foundations, while it took abundant care to preserve any rights of property which private persons might enjoy over the estates thus escheated to the Crown, vouchsafed not a word towards securing the slightest compensation to the dispossessed owners. The fall of the mitred abbots changed the proportions of the two estates which constitute the upper house of parliament. Though the number of abbots and priors to whom writs of summons were directed varied considerably in different parliaments, they always, joined to the twenty-one bishops, preponderated over the temporal peers.[106] It was no longer possible for the prelacy to offer an efficacious opposition to the reformation they abhorred. Their own baronial tenure, their high dignity as legislative counsellors of the land, remained; but, one branch as ancient and venerable as their own thus lopped off, the spiritual aristocracy was reduced to play a very secondary part in the councils of the nation. Nor could the protestant religion have easily been established by legal methods under Edward and Elizabeth without this previous destruction of the monasteries. Those who, professing an attachment to that religion, have swollen the clamour of its adversaries against the dissolution of foundations that existed only for the sake of a different faith and worship, seem to me not very consistent or enlightened reasoners. In some, the love of antiquity produces a sort of fanciful illusion; and the very sight of those buildings, so magnificent in their prosperous hour, so beautiful even in their present ruin, begets a sympathy for those who founded and inhabited them. In many, the violent courses of confiscation and attainder which accompanied this great revolution excite so just an indignation, that they either forget to ask whether the end might not have been reached by more laudable means, or condemn that end itself either as sacrilege, or at least as an atrocious violation of the rights of property. Others again, who acknowledge that the monastic discipline cannot be reconciled with the modern system of religion, or with public utility, lament only that these ample endowments were not bestowed upon ecclesiastical corporations, freed from the monkish cowl, but still belonging to that spiritual profession to whose use they were originally consecrated. And it was a very natural theme of complaint at the time, that such abundant revenues as might have sustained the dignity of the crown and supplied the means of public defence without burthening the subject, had served little other purpose than that of swelling the fortunes of rapacious courtiers, and had left the king as necessitous and craving as before. Notwithstanding these various censures, I must own myself of opinion, both that the abolition of monastic institutions might have been conducted in a manner consonant to justice as well as policy, and that Henry's profuse alienation of the abbey lands, however illaudable in its motive, has proved upon the whole more beneficial to England than any other disposition would have turned out. I cannot, until some broad principle is made more obvious than it ever has yet been, do such violence to all common notions on the subject, as to attach an equal inviolability to private and corporate property. The law of hereditary succession, as ancient and universal as that of property itself, the law of testamentary disposition, the complement of the former, so long established in most countries as to seem a natural right, have invested the individual possessor of the soil with such a fictitious immortality, such anticipated enjoyment, as it were, of futurity, that his perpetual ownership could not be limited to the term of his own existence, without what he would justly feel as a real deprivation of property. Nor are the expectancies of children, or other probable heirs, less real possessions, which it is a hardship, if not an absolute injury, to defeat. Yet even this hereditary claim is set aside by the laws of forfeiture, which have almost everywhere prevailed. But in estates held, as we call it, in mortmain, there is no intercommunity, no natural privity of interest, between the present possessor and those who may succeed him; and as the former cannot have any pretext for complaint, if, his own rights being preserved, the legislature should alter the course of transmission after his decease, so neither is any hardship sustained by others, unless their succession has been already designated or rendered probable. Corporate property therefore appears to stand on a very different footing from that of private individuals; and while all infringements of the established privileges of the latter are to be sedulously avoided, and held justifiable only by the strongest motives of public expediency, we cannot but admit the full right of the legislature to new mould and regulate the former in all that does not involve existing interests upon far slighter reasons of convenience. If Henry had been content with prohibiting the profession of religious persons for the future, and had gradually diverted their revenues instead of violently confiscating them, no protestant could have found it easy to censure his policy. It is indeed impossible to feel too much indignation at the spirit in which these proceedings were conducted. Besides the hardship sustained by so many persons turned loose upon society for whose occupations they were unfit, the indiscriminate destruction of convents produced several public mischiefs. The visitors themselves strongly interceded for the nunnery of Godstow, as irreproachable managed, and an excellent place of education; and no doubt some other foundations should have been preserved for the same reason. Latimer, who could not have a prejudice on that side, begged earnestly that the priory of Malvern might be spared, for the maintenance of preaching and hospitality. It was urged for Hexham abbey that, there not being a house for many miles in that part of England, the country would be in danger of going to waste.[107] And the total want of inns in many parts of the kingdom must have rendered the loss of these hospitable places of reception a serious grievance. These and probably other reasons ought to have checked the destroying spirit of reform in its career, and suggested to Henry's counsellors that a few years would not be ill consumed in contriving new methods of attaining the beneficial effects which monastic institutions had not failed to produce, and in preparing the people's minds for so important an innovation. The suppression of monasteries poured in an instant such a torrent of wealth upon the crown, as has seldom been equalled in any country by the confiscations following a subdued rebellion. The clear yearly value was rated at £131,607; but was in reality, if we believe Burnet, ten times as great; the courtiers undervaluing those estates, in order to obtain grants or sales of them more easily. It is certain, however, that Burnet's supposition errs extravagantly on the other side.[108] The movables of the smaller monasteries alone were reckoned at £100,000; and, as the rents of these were less than a fourth of the whole, we may calculate the aggregate value of movable wealth in the same proportion. All this was enough to dazzle a more prudent mind than that of Henry, and to inspire those sanguine dreams of inexhaustible affluence with which private men are so often filled by sudden prosperity. The monastic rule of life being thus abrogated, as neither conformable to pure religion nor to policy, it is to be considered, to what uses these immense endowments ought to have been applied. There are some, perhaps, who may be of opinion that the original founders of monasteries, or those who had afterwards bestowed lands on them, having annexed to their grants an implied condition of the continuance of certain devotional services, and especially of prayers for the repose of their souls, it were but equitable that, if the legislature rendered the performance of this condition impossible, their heirs should re-enter upon the lands that would not have been alienated from them on any other account. But, without adverting to the difficulty in many cases of ascertaining the lawful heir, it might be answered that the donors had absolutely divested themselves of all interest in their grants, and that it was more consonant to the analogy of law to treat these estates as escheats or vacant possessions, devolving to the sovereign, than to imagine a right of reversion that no party had ever contemplated. There was indeed a class of persons, very different from the founders of monasteries, to whom restitution was due. A large proportion of conventual revenues arose out of parochial tithes, diverted from the legitimate object of maintaining the incumbent to swell the pomp of some remote abbot. These impropriations were in no one instance, I believe, restored to the parochial clergy, and have passed either into the hands of laymen, or of bishops and other ecclesiastical persons, who were frequently compelled by the Tudor princes to take them in exchange for lands.[109] It was not in the spirit of Henry's policy, or in that of the times, to preserve much of these revenues to the church, though he had designed to allot £18,000 a year for eighteen new sees, of which he only erected six with far inferior endowments. Nor was he much better inclined to husband them for public exigencies, although more than sufficient to make the Crown independent of parliamentary aid. It may perhaps be reckoned a providential circumstance that his thoughtless humour should have rejected the obvious means of establishing an uncontrollable despotism, by rendering unnecessary the only exertion of power which his subjects were likely to withstand. Henry VII. would probably have followed a very different course. Large sums, however, are said to have been expended in the repair of highways, and in fortifying ports in the Channel.[110] But the greater part was dissipated in profuse grants to the courtiers, who frequently contrived to veil their acquisitions under cover of a purchase from the crown. It has been surmised that Cromwell, in his desire to promote the Reformation, advised the king to make this partition of abbey lands among the nobles and gentry, either by grant, or by sale on easy terms, that, being thus bound by the sure ties of private interest, they might always oppose any return towards the dominion of Rome.[111] In Mary's reign accordingly her parliament, so obsequious in all matters of religion, adhered with a firm grasp to the possession of church lands; nor could the papal supremacy be re-established until a sanction was given to their enjoyment. And we may ascribe part of the zeal of the same class in bringing back and preserving the reformed church under Elizabeth to a similar motive; not that these gentlemen were hypocritical pretenders to a belief they did not entertain, but that, according to the general laws of human nature, they gave a readier reception to truths which made their estates more secure. But, if the participation of so many persons in the spoils of ecclesiastical property gave stability to the new religion, by pledging them to its support, it was also of no slight advantage to our civil constitution, strengthening, and as it were infusing new blood into the territorial aristocracy, who were to withstand the enormous prerogative of the Crown. For if it be true, as surely it is, that wealth is power, the distribution of so large a portion of the kingdom among the nobles and gentry, the elevation of so many new families, and the increased opulence of the more ancient, must have sensibly affected their weight in the balance. Those families indeed, within or without the bounds of the peerage, which are now deemed the most considerable, will be found, with no great number of exceptions, to have first become conspicuous under the Tudor line of kings; and, if we could trace the titles of their estates, to have acquired no small portion of them, mediately or immediately, from monastic or other ecclesiastical foundations. And better it has been that these revenues should thus from age to age have been expended in liberal hospitality, in discerning charity, in the promotion of industry and cultivation, in the active duties or even generous amusements of life, than in maintaining a host of ignorant and inactive monks, in deceiving the populace by superstitious pageantry, or in the encouragement of idleness and mendicity.[112] A very ungrounded prejudice had long obtained currency, and, notwithstanding the contradiction it has experienced in our more accurate age, seems still not eradicated, that the alms of monasteries maintained the indigent throughout the kingdom, and that the system of parochial relief, now so much the topic of complaint, was rendered necessary by the dissolution of those beneficent foundations. There can be no doubt that many of the impotent poor derived support from their charity. But the blind eleemosynary spirit inculcated by the Romish church is notoriously the cause, not the cure, of beggary and wretchedness. The monastic foundations, scattered in different counties, but by no means at regular distances, could never answer the end of local and limited succour, meted out in just proportion to the demands of poverty. Their gates might indeed be open to those who knocked at them for alms, and came in search of streams that must always be too scanty for a thirsty multitude. Nothing could have a stronger tendency to promote that vagabond mendicity, which unceasing and very severe statutes were enacted to repress. It was and must always continue a hard problem, to discover the means of rescuing those whom labour cannot maintain from the last extremities of helpless suffering. The regular clergy were in all respects ill fitted for this great office of humanity. Even while the monasteries were yet standing, the scheme of a provision for the poor had been adopted by the legislature, by means of regular collections, which in the course of a long series of statutes, ending in the 43rd of Elizabeth, were almost insensibly converted into compulsory assessments.[113] It is by no means probable that, however some in particular districts may have had to lament the cessation of hospitality in the convents, the poor in general were placed in a worse condition by their dissolution; nor are we to forget that the class to whom the abbey lands have fallen have been distinguished at all times, and never more than in the first century after that transference of property, for their charity and munificence. These two great political measures, the separation from the Roman see, and the suppression of monasteries, so broke the vast power of the English clergy, and humbled their spirit, that they became the most abject of Henry's vassals, and dared not offer any steady opposition to his caprice, even when it led him to make innovations in the essential parts of their religion. It is certain that a large majority of that order would gladly have retained their allegiance to Rome, and that they viewed with horror the downfall of the monasteries. In rending away so much that had been incorporated with the public faith, Henry seemed to prepare the road for the still more radical changes of the reformers. These, a numerous and increasing sect, exulted by turns in the innovations he promulgated, lamented their dilatoriness and imperfection, or trembled at the reaction of his bigotry against themselves. Trained in the school of theological controversy, and drawing from those bitter waters fresh aliment for his sanguinary and imperious temper, he displayed the impartiality of his intolerance by alternately persecuting the two conflicting parties. We all have read how three persons convicted of disputing his supremacy, and three deniers of transubstantiation, were drawn on the same hurdle to execution. But the doctrinal system adopted by Henry in the latter years of his reign, varying indeed in some measure from time to time, was about equally removed from popish and protestant orthodoxy. The corporal presence of Christ in the consecrated elements was a tenet which no one might dispute without incurring the penalty of death by fire; and the king had a capricious partiality to the Romish practice in those very points where a great many real catholics on the Continent were earnest for its alteration, the communion of the laity by bread alone, and the celibacy of the clergy. But in several other respects he was wrought upon by Cranmer to draw pretty near to the Lutheran creed, and to permit such explications to be given in the books set forth by his authority, the _Institution_, and the _Erudition of a Christian Man_, as, if they did not absolutely proscribe most of the ancient opinions, threw at best much doubt upon them, and gave intimations which the people, now become attentive to these questions, were acute enough to interpret.[114] _Progress of the reformed doctrine in England._--It was natural to suspect, from the previous temper of the nation, that the revolutionary spirit which blazed out in Germany should spread rapidly over England. The enemies of ancient superstition at home, by frequent communication with the Lutheran and Swiss reformers, acquired not only more enlivening confidence, but a surer and more definite system of belief. Books printed in Germany or in the Flemish provinces, where at first the administration connived at the new religion, were imported and read with that eagerness and delight which always compensate the risk of forbidden studies.[115] Wolsey, who had no turn towards persecution, contented himself with ordering heretical writings to be burned, and strictly prohibiting their importation. But to withstand the course of popular opinion is always like a combat against the elements in commotion; nor is it likely that a government far more steady and unanimous than that of Henry VIII. could have effectually prevented the diffusion of protestantism. And the severe punishment of many zealous reformers, in the subsequent part of his reign, tended, beyond a doubt, to excite a favourable prejudice for men whose manifest sincerity, piety, and constancy in suffering, were as good pledges for the truth of their doctrine, as the people had been always taught to esteem the same qualities in the legends of the early martyrs. Nor were Henry's persecutions conducted upon the only rational principle, that of the inquisition, which judges from the analogy of medicine, that a deadly poison cannot be extirpated but by the speedy and radical excision of the diseased part; but falling only upon a few of a more eager and officious zeal, left a well-grounded opinion among the rest, that by some degree of temporising prudence they might escape molestation till a season of liberty should arrive. One of the books originally included in the list of proscription among the writings of Luther and the foreign Protestants, was a translation of the New Testament into English by Tindal, printed at Antwerp in 1526. A complete version of the Bible, partly by Tindal, and partly by Coverdale, appeared, perhaps at Hamburgh, in 1535; a second edition, under the name of Matthews, following in 1537; and as Cranmer's influence over the king became greater, and his aversion to the Roman church more inveterate, so material a change was made in the ecclesiastical policy of this reign, as to direct the Scriptures in this translation (but with corrections in many places) to be set up in parish churches, and permit them to be publicly sold.[116] This measure had a strong tendency to promote the Reformation, especially among those who were capable of reading; not surely that the controverted doctrines of the Romish church are so indisputably erroneous as to bear no sort of examination, but because such a promulgation of the Scriptures at that particular time seemed both tacitly to admit the chief point of contest, that they were the exclusive standard of Christian faith, and to lead the people to interpret them with that sort of prejudice which a jury would feel in considering evidence that one party in a cause had attempted to suppress; a danger which those who wish to restrain the course of free discussion without very sure means of success will in all ages do well to reflect upon. The great change of religious opinions was not so much effected by reasoning on points of theological controversy, upon which some are apt to fancy it turned, as on a persuasion that fraud and corruption pervaded the established church. The pretended miracles, which had so long held the understanding in captivity, were wisely exposed to ridicule and indignation by the government. Plays and interludes were represented in churches, of which the usual subject was the vices and corruptions of the monks and clergy. These were disapproved of by the graver sort, but no doubt served a useful purpose.[117] The press sent forth its light hosts of libels; and though the catholic party did not fail to try the same means of influence, they had both less liberty to write as they pleased, and fewer readers than their antagonists. _Its establishment under Edward._--In this feverish state of the public mind on the most interesting subject, ensued the death of Henry VIII., who had excited and kept it up. More than once, during the latter part of his capricious reign, the popish party, headed by Norfolk and Gardiner, had gained an ascendant and several persons had been burned for denying transubstantiation. But at the moment of his decease, Norfolk was a prisoner attainted of treason, Gardiner in disgrace, and the favour of Cranmer at its height. It is said that Henry had meditated some further changes in religion. Of his executors, the greater part, as their subsequent conduct evinces, were nearly indifferent to the two systems, except so far as more might be gained by innovation. But Somerset, the new protector, appears to have inclined sincerely towards the Reformation, though not wholly uninfluenced by similar motives. His authority readily overcame all opposition in the council: and it was soon perceived that Edward, whose singular precocity gave his opinions in childhood an importance not wholly ridiculous, had imbibed a steady and ardent attachment to the new religion, which probably, had he lived longer, would have led him both to diverge farther from what he thought an idolatrous superstition, and to have treated its adherents with severity.[118] Under his reign accordingly a series of alterations in the tenets and homilies of the English church were made, the principal of which I shall point out, without following a chronological order, or adverting to such matters of controversy as did not produce a sensible effect on the people. _Sketch of the chief points of difference between the two religions._--1. It was obviously among the first steps required in order to introduce a mode of religion at once more reasonable and more earnest than the former, that the public services of the church should be expressed in the mother tongue of the congregation. The Latin ritual had been unchanged ever since the age when it was familiar; partly through a sluggish dislike of innovation, but partly also because the mysteriousness of an unknown dialect served to impose on the vulgar, and to throw an air of wisdom around the priesthood. Yet what was thus concealed would have borne the light. Our own liturgy, so justly celebrated for its piety, elevation, and simplicity, is in great measure a translation from the catholic services; those portions of course being omitted which had relation to different principles of worship. In the second year of Edward's reign, the reformation of the public service was accomplished, and an English liturgy compiled not essentially different from that in present use.[119] 2. No part of exterior religion was more prominent, or more offensive to those who had imbibed a protestant spirit, than the worship, or at least veneration, of images, which in remote and barbarous ages had given excessive scandal both in the Greek and Latin churches, though long fully established in the practice of each. The populace, in towns where the reformed tenets prevailed, began to pull them down in the very first days of Edward's reign; and after a little pretence at distinguishing those which had not been abused, orders were given that all images should be taken away from churches. It was perhaps necessary thus to hinder the zealous Protestants from abating them as nuisances, which had already caused several disturbances.[120] But this order was executed with a rigour which lovers of art and antiquity have long deplored. Our churches bear witness to the devastation committed in the wantonness of triumphant reform, by defacing statues and crosses on the exterior of buildings intended for worship, or windows and monuments within. Missals and other books dedicated to superstition perished in the same manner. Altars were taken down, and a great variety of ceremonies abrogated; such as the use of incense, tapers, and holy water; and though more of these were retained than eager innovators could approve, the whole surface of religious ordinances, all that is palpable to common minds, underwent a surprising transformation. 3. But this change in ceremonial observances and outward show was trifling, when compared to that in the objects of worship, and in the purposes for which they were addressed. Those who have visited some catholic temples, and attended to the current language of devotion, must have perceived, what the writings of apologists or decrees of councils will never enable them to discover, that the saints, but more especially the Virgin, are almost exclusively the _popular_ deities of that religion. All this polytheism was swept away by the reformers; and in this may be deemed to consist the most specific difference of the two systems. Nor did they spare the belief in purgatory, that unknown land which the hierarchy swayed with so absolute a rule, and to which the earth had been rendered a tributary province. Yet in the first liturgy put forth under Edward, the prayers for departed souls were retained; whether out of respect to the prejudices of the people, or to the immemorial antiquity of the practice. But such prayers, if not necessarily implying the doctrine of purgatory (which yet in the main they appear to do), are at least so closely connected with it, that the belief could never be eradicated while they remained. Hence, in the revision of the liturgy, four years afterwards, they were laid aside;[121] and several other changes made, to eradicate the vestiges of the ancient superstition. 4. Auricular confession, as commonly called, or the private and special confession of sins to a priest for the purpose of obtaining his absolution, an imperative duty in the church of Rome, and preserved as such in the statute of the six articles, and in the religious codes published by Henry VIII., was left to each man's discretion in the new order; a judicious temperament, which the reformers would have done well to adopt in some other points. And thus, while it has never been condemned in our church, it went without dispute into complete neglect. Those who desire to augment the influence of the clergy regret, of course, its discontinuance; and some may conceive that it would serve either for wholesome restraint, or useful admonition. It is very difficult, or perhaps beyond the reach of any human being, to determine absolutely how far these benefits, which cannot be reasonably denied to result in some instances from the rite of confession, outweigh the mischiefs connected with it. There seems to be something in the Roman catholic discipline (and I know nothing else so likely) which keeps the balance, as it were, of moral influence pretty even between the two religions, and compensates for the ignorance and superstition which the elder preserves: for I am not sure that the protestant system in the present age has any very sensible advantage in this respect; or that in countries where the comparison can fairly be made, as in Germany or Switzerland, there is more honesty in one sex, or more chastity in the other, when they belong to the reformed churches. Yet, on the other hand, the practice of confession is at the best of very doubtful utility, when considered in its full extent and general bearings. The ordinary confessor, listening mechanically to hundreds of penitents, can hardly preserve much authority over most of them. But in proportion as his attention is directed to the secrets of conscience, his influence may become dangerous; men grow accustomed to the control of one perhaps more feeble and guilty than themselves, but over whose frailties they exercise no reciprocal command! and, if the confessors of kings have been sometimes terrible to nations, their ascendency is probably not less mischievous, in proportion to its extent, within the sphere of domestic life. In a political light, and with the object of lessening the weight of the ecclesiastical order in temporal affairs, there cannot be the least hesitation as to the expediency of discontinuing the usage.[122] 5. It has very rarely been the custom of theologians to measure the importance of orthodox opinions by their effect on the lives and hearts of those who adopt them; nor was this predilection for speculative above practical doctrines ever more evident than in the leading controversy of the sixteenth century, that respecting the Lord's supper. No errors on this point could have had any influence on men's moral conduct, nor indeed much on the general nature of their faith; yet it was selected as the test of heresy; and most, if not all, of those who suffered death upon that charge, whether in England or on the Continent, were convicted of denying the corporal presence in the sense of the Roman church. It had been well if the reformers had learned, by abhorring her persecution, not to practise it in a somewhat less degree upon each other, or by exposing the absurdities of transubstantiation, not to contend for equal nonsense of their own. Four principal theories, to say nothing of subordinate varieties, divided Europe at the accession of Edward VI. about the sacrament of the eucharist. The church of Rome would not depart a single letter from transubstantiation, or the change, at the moment of consecration, of the substances of bread and wine into those of Christ's body and blood; the accidents, in school language, or sensible qualities of the former remaining, or becoming inherent in the new substance. This doctrine does not, as vulgarly supposed, contradict the evidence of our senses; since our senses can report nothing as to the unknown being, which the schoolmen denominated substance, and which alone was the subject of this conversion. But metaphysicians of later ages might enquire whether material substances, abstractedly considered, exist at all, or, if they exist, whether they can have any specific distinction except their sensible qualities. This, perhaps, did not suggest itself in the sixteenth century; but it was strongly objected that the simultaneous existence of a body in many places, which the Romish doctrine implied, was inconceivable, and even contradictory. Luther, partly, as it seems, out of his determination to multiply differences with the church, invented a theory somewhat different, usually called consubstantiation, which was adopted in the confession of Augsburgh, and to which, at least down to the end of the seventeenth century, the divines of that communion were much attached. They imagined the two substances to be united in the sacramental elements, so that they might be termed bread and wine, or the body and blood, with equal propriety.[123] But it must be obvious that there is merely a scholastic distinction between this doctrine and that of Rome; though, when it suited the Lutherans to magnify, rather than dissemble, their deviations from the mother church, it was raised into an important difference. A simpler and more rational explication occurred to Zuingle and Oecolampadius, from whom the Helvetian Protestants imbibed their faith. Rejecting every notion of a real presence, and divesting the institution of all its mystery, they saw only figurative symbols in the elements which Christ had appointed as a commemoration of his death. But this novel opinion excited as much indignation in Luther as in the Romanists. It was indeed a rock on which the Reformation was nearly shipwrecked; since the violent contests which it occasioned, and the narrow intolerance which one side at least displayed throughout the controversy, not only weakened on several occasions the temporal power of the protestant churches, but disgusted many of those who might have inclined towards espousing their sentiments. Besides these three hypotheses, a fourth was promulgated by Martin Bucer of Strasburgh, a man of much acuteness, but prone to metaphysical subtlety, and not, it is said, of a very ingenuous character. His theory upon the sacrament of the Lord's supper, after having been adopted with little variation by Calvin, was finally received into some of the offices of the English church. If the Roman and Lutheran doctrines teemed with unmasked absurdity, this middle system (if indeed it is to be considered as a genuine opinion, and not rather a politic device),[124] had no advantage but in the disguise of unmeaning terms; while it had the peculiar infelicity of departing as much from the literal sense of the words of institution, wherein the former triumphed, as the Zuinglian interpretation itself. It is not easy to state in language tolerably perspicuous this obsolete metaphysical theology. But Bucer, as I apprehend, though his expressions are unusually confused, did not acknowledge a local presence of Christ's body and blood in the elements after consecration--so far concurring with the Helvetians; while he contended that they were really, and without figure, received by the worthy communicant through faith, so as to preserve the belief of a mysterious union, and of what was sometimes called a real presence. It can hardly fail to strike every unprejudiced reader that a material substance can only in a very figurative sense be said to be received through faith; that there can be no real presence of such a body, consistently with the proper use of language, but by its local occupation of space; and that, as the Romish tenet of transubstantiation is rather the best, so this of the Calvinists is the worst imagined of the three that have been opposed to the simplicity of the Helvetic explanation. Bucer himself came to England early in the reign of Edward, and had a considerable share in advising the measures of reformation. But Peter Martyr, a disciple of the Swiss school, had also no small influence. In the forty-two articles set forth by authority, the real or corporeal presence, using these words as synonymous, is explicitly denied. This clause was omitted on the revision of the articles under Elizabeth.[125] 6. These various innovations were exceedingly inimical to the influence and interests of the priesthood. But that order obtained a sort of compensation in being released from its obligation to celibacy. This obligation, though unwarranted by Scripture, rested on a most ancient and universal rule of discipline; for though the Greek and Eastern churches have always permitted the ordination of married persons, yet they do not allow those already ordained to take wives. No very good reason, however, could be given for this distinction; and the constrained celibacy of the Latin clergy had given rise to mischiefs, of which their general practice of retaining concubines might be reckoned among the smallest.[126] The German Protestants soon rejected this burden, and encouraged regular as well as secular priests to marry. Cranmer had himself taken a wife in Germany, whom Henry's law of the six articles, one of which made the marriage of priests felony, compelled him to send away. In the reign of Edward this was justly reckoned an indispensable part of the new Reformation. But the bill for that purpose passed the Lords with some little difficulty, nine bishops and four peers dissenting; and its preamble cast such an imputation on the practice it allowed, treating the marriage of priests as ignominious and a tolerated evil, that another act was thought necessary a few years afterwards, when the Reformation was better established, to vindicate this right of the protestant church.[127] A great number of the clergy availed themselves of their liberty; which may probably have had as extensive an effect in conciliating the ecclesiastical profession, as the suppression of monasteries had in rendering the gentry favourable to the new order of religion. _Opposition made by part of the nation._--But great as was the number of those whom conviction or self-interest enlisted under the protestant banner, it appears plain that the Reformation moved on with too precipitate a step for the majority. The new doctrines prevailed in London, in many large towns, and in the eastern counties. But in the north and west of England, the body of the people were strictly Catholics. The clergy, though not very scrupulous about conforming to the innovations, were generally averse to most of them.[128] And, in spite of the church lands, I imagine that most of the nobility, if not the gentry, inclined to the same persuasion; not a few peers having sometimes dissented from the bills passed on the subject of religion in this reign, while no sort of disagreement appears in the upper house during that of Mary. In the western insurrection of 1549, which partly originated in the alleged grievance of enclosures, many of the demands made by the rebels go to the entire re-establishment of popery. Those of the Norfolk insurgents in the same year, whose political complaints were the same, do not, as far as I perceive, show any such tendency. But an historian, whose bias was certainly not unfavourable to protestantism, confesses that all endeavours were too weak to overcome the aversion of the people towards reformation, and even intimates that German troops were sent for from Calais on account of the bigotry with which the bulk of the nation adhered to the old superstition.[129] This is somewhat a humiliating admission, that the protestant faith was imposed upon our ancestors by a foreign army. And as the reformers, though still the fewer, were undeniably a great and increasing party, it may be natural to enquire, whether a regard to policy as well as equitable considerations should not have repressed still more, as it did in some measure, the zeal of Cranmer and Somerset? It might be asked, whether, in the acknowledged co-existence of two religions, some preference were not fairly claimed for the creed, which all had once held, and which the greater part yet retained; whether it were becoming that the counsellors of an infant king should use such violence in breaking up the ecclesiastical constitution; whether it were to be expected that a free-spirited people should see their consciences thus transferred by proclamation, and all that they had learned to venerate not only torn away from them, but exposed to what they must reckon blasphemous contumely and profanation? The demolition of shrines and images, far unlike the speculative disputes of theologians, was an overt insult on every catholic heart. Still more were they exasperated at the ribaldry which vulgar Protestants uttered against their most sacred mystery. It was found necessary in the very first act of the first protestant parliament, to denounce penalties against such as spoke irreverently of the sacrament, an indecency not unusual with those who held the Zuinglian opinion in that age of coarse pleasantry and unmixed invective.[130] Nor could the people repose much confidence in the judgment and sincerity of their governors, whom they had seen submitting without outward repugnance to Henry's various schemes of religion, and whom they saw every day enriching themselves with the plunder of the church they affected to reform. There was a sort of endowed colleges or fraternities, called chantries, consisting of secular priests, whose duty was to say daily masses for the founders. These were abolished and given to the king by acts of parliament in the last year of Henry, and the first of Edward. It was intimated in the preamble of the latter statute that their revenues should be converted to the erection of schools, the augmentation of the universities, and the sustenance of the indigent.[131] But this was entirely neglected, and the estates fell into the hands of the courtiers. Nor did they content themselves with this escheated wealth of the church. Almost every bishopric was spoiled by their ravenous power in this reign, either through mere alienations, or long leases, or unequal exchanges. Exeter and Llandaff from being among the richest sees, fell into the class of the poorest. Lichfield lost the chief part of its lands to raise an estate for Lord Paget. London, Winchester, and even Canterbury, suffered considerably. The Duke of Somerset was much beloved; yet he had given no unjust offence by pulling down some churches in order to erect Somerset House with the materials. He had even projected the demolition of Westminster Abbey; but the chapter averted this outrageous piece of rapacity, sufficient of itself to characterise that age, by the usual method, a grant of some of their estates.[132] Tolerance in religion, it is well known, so unanimously admitted (at least verbally) even by theologians in the present century, was seldom considered as practicable, much less as a matter of right, during the period of the Reformation. The difference in this respect between the Catholics and Protestants was only in degree, and in degree there was much less difference than we are apt to believe. Persecution is the deadly original sin of the reformed churches; that which cools every honest man's zeal for their cause, in proportion as his reading becomes more extensive. The Lutheran princes and cities in Germany constantly refused to tolerate the use of the mass as an idolatrous service;[133] and this name of idolatry, though adopted in retaliation for that of heresy, answered the same end as the other, of exciting animosity and uncharitableness. The Roman worship was equally proscribed in England. Many persons were sent to prison for hearing mass and similar offences.[134] The Princess Mary supplicated in vain to have the exercise of her own religion at home; and Charles V. several times interceded in her behalf; but though Cranmer and Ridley, as well as the council, would have consented to this indulgence, the young king, whose education had unhappily infused a good deal of bigotry into his mind, could not be prevailed upon to connive at such idolatry.[135] Yet in one memorable instance he had shown a milder spirit, struggling against Cranmer to save a fanatical woman from the punishment of heresy. This is a stain upon Cranmer's memory which nothing but his own death could have lightened. In men hardly escaped from a similar peril, in men who had nothing to plead but the right of private judgment, in men who had defied the prescriptive authority of past ages and of established power, the crime of persecution assumes a far deeper hue, and is capable of far less extenuation, than in a Roman inquisitor. Thus the death of Servetus has weighed down the name and memory of Calvin. And though Cranmer was incapable of the rancorous malignity of the Genevan lawgiver, yet I regret to say that there is a peculiar circumstance of aggravation in his pursuing to death this woman, Joan Boucher, and a Dutchman that had been convicted of Arianism. It is said that he had been accessary in the preceding reign to the condemnation of Lambert, and perhaps some others, for opinions concerning the Lord's supper which he had himself afterwards embraced.[136] Such an evidence of the fallibility of human judgment, such an example that persecutions for heresy, how conscientiously soever managed, are liable to end in shedding the blood of those who maintain truth, should have taught him, above all men, a scrupulous repugnance to carry into effect those sanguinary laws. Compared with these executions for heresy, the imprisonment and deprivation of Gardiner and Bonner appear but measures of ordinary severity towards political adversaries under the pretext of religion; yet are they wholly unjustifiable, particularly in the former instance; and if the subsequent retaliation of those bad men was beyond all proportion excessive, we should remember that such is the natural consequence of tyrannical aggressions.[137] _Cranmer._--The person most conspicuous, though Ridley was perhaps the most learned divine, in moulding the faith and discipline of the English church, which has not been very materially altered since his time, was Archbishop Cranmer.[138] Few men, about whose conduct there is so little room for controversy upon facts, have been represented in more opposite lights. We know the favouring colours of protestant writers; but turn to the bitter invective of Bossuet; and the patriarch of our reformed church stands forth as the most abandoned of time-serving hypocrites. No political factions affect the impartiality of men's judgment so grossly, or so permanently, as religious heats. Doubtless, if we should reverse the picture, and imagine the end and scope of Cranmer's labour to have been the establishment of the Roman catholic religion in a protestant country, the estimate formed of his behaviour would be somewhat less favourable than it is at present. If, casting away all prejudice on either side, we weigh the character of this prelate in an equal balance, he will appear far indeed removed from the turpitude imputed to him by his enemies, yet not entitled to any extraordinary veneration. Though it is most eminently true of Cranmer that his faults were always the effect of circumstances, and not of intention; yet this palliating consideration is rather weakened when we recollect that he consented to place himself in a station where those circumstances occurred. At the time of Cranmer's elevation to the see of Canterbury, Henry, though on the point of separating for ever from Rome, had not absolutely determined upon so strong a measure; and his policy required that the new archbishop should solicit the usual bulls from the pope, and take the oath of canonical obedience to him. Cranmer, already a rebel from that dominion in his heart, had recourse to the disingenuous shift of a protest, before his consecration, that "he did not intend to restrain himself thereby from anything to which he was bound by his duty to God or the king, or from taking part in any reformation of the English church which he might judge to be required."[139] This first deviation from integrity, as is almost always the case, drew after it many others; and began that discreditable course of temporising, and undue compliance, to which he was reduced for the rest of Henry's reign. Cranmer's abilities were not perhaps of a high order, or at least they were unsuited to public affairs; but his principal defect was in that firmness by which men of more ordinary talents may ensure respect. Nothing could be weaker than his conduct in the usurpation of Lady Jane, which he might better have boldly sustained, like Ridley, as a step necessary for the conservation of protestantism, than given into against his conscience, overpowered by the importunities of a misguided boy. Had the malignity of his enemies been directed rather against his reputation than his life, had he been permitted to survive his shame, as a prisoner in the Tower, it must have seemed a more arduous task to defend the memory of Cranmer; but his fame has brightened in the fire that consumed him.[140] _Cranmer's moderation in introducing changes not acceptable to the zealots._--Those who, with the habits of thinking that prevail in our times, cast back their eyes on the reign of Edward VI. will generally be disposed to censure the precipitancy, and still more the exclusive spirit, of our principal reformers. But relatively to the course that things had taken in Germany, and to the feverish zeal of that age, the moderation of Cranmer and Ridley, the only ecclesiastics who took a prominent share in these measures, was very conspicuous; and tended above everything to place the Anglican church in that middle position which it has always preserved, between the Roman hierarchy and that of other protestant denominations. It is manifest from the history of the Reformation in Germany, that its predisposing cause was the covetous and arrogant character of the superior ecclesiastics, founded upon vast temporal authority; a yoke long borne with impatience, and which the unanimous adherence of the prelates to Rome in the period of separation gave the Lutheran princes a good excuse for entirely throwing off. Some of the more temperate reformers, as Melancthon, would have admitted a limited jurisdiction of the episcopacy: but in general the destruction of that order, such as it then existed, may be deemed as fundamental a principle of the new discipline, as any theological point could be of the new doctrine. But, besides that the subjection of ecclesiastical to civil tribunals, and possibly other causes, had rendered the superior clergy in England less obnoxious than in Germany, there was this important difference between the two countries, that several bishops from zealous conviction, many more from pliability to self-interest, had gone along with the new-modelling of the English church by Henry and Edward; so that it was perfectly easy to keep up that form of government, in the regular succession which had usually been deemed essential; though the foreign reformers had neither the wish, nor possibly the means, to preserve it. Cranmer himself, indeed, during the reign of Henry, had bent, as usual, to the king's despotic humour; and favoured a novel theory of ecclesiastical authority, which resolved all its spiritual as well as temporal powers into the royal supremacy. Accordingly, at the accession of Edward, he himself, and several other bishops, took out commissions to hold their sees during pleasure.[141] But when the necessity of compliance had passed by, they showed a disposition not only to oppose the continual spoliations of church property, but to maintain the jurisdiction which the canon law had conferred upon them.[142] And though, as this papal code did not appear very well adapted to a protestant church, a new scheme of ecclesiastical laws was drawn up, which the king's death rendered abortive, this was rather calculated to strengthen the hands of the spiritual courts than to withdraw any matter from their cognisance.[143] The policy, or it may be the prejudices, of Cranmer induced him also to retain in the church a few ceremonial usages, which the Helvetic, though not the Lutheran, reformers had swept away; such as the copes and rochets of bishops, and the surplice of officiating priests. It should seem inconceivable that any one could object to these vestments, considered in themselves; far more, if they could answer in the slightest degree the end of conciliating a reluctant people. But this motive unfortunately was often disregarded in that age; and indeed in all ages an abhorrence of concession and compromise is a never-failing characteristic of religious factions. The foreign reformers then in England, two of whom, Bucer and Peter Martyr, enjoyed a deserved reputation, expressed their dissatisfaction at seeing these habits retained, and complained, in general, of the backwardness of the English reformation. Calvin and Bullinger wrote from Switzerland in the same strain.[144] Nor was this sentiment by any means confined to strangers. Hooper, an eminent divine, having been elected Bishop of Gloucester, refused to be consecrated in the usual dress. It marks, almost ludicrously, the spirit of those times, that, instead of permitting him to decline the station, the council sent him to prison for some time, until by some mutual concessions the business was adjusted.[145] These events it would hardly be worth while to notice in such a work as the present, if they had not been the prologue to a long and serious drama. _Persecution under Mary._--It is certain that the re-establishment of popery on Mary's accession must have been acceptable to a large part, or perhaps to the majority, of the nation. There is reason however to believe that the reformed doctrine had made a real progress in the few years of her brother's reign. The counties of Norfolk and Suffolk, which placed Mary on the throne as the lawful heir, were chiefly protestant, and experienced from her the usual gratitude and good faith of a bigot.[146] Noailles bears witness, in many of his despatches, to the unwillingness which great numbers of the people displayed to endure the restoration of popery, and to the queen's excessive unpopularity, even before her marriage with Philip had been resolved upon.[147] As for the higher classes, they partook far less than their inferiors in the religious zeal of that age. Henry, Edward, Mary, Elizabeth, found almost an equal compliance with their varying schemes of faith. Yet the larger proportion of the nobility and gentry appear to have preferred the catholic religion. Several peers opposed the bills for reformation under Edward; and others, who had gone along with the current, became active counsellors of Mary. Not a few persons of family emigrated in the latter reign; but, with the exception of the second Earl of Bedford, who suffered a short imprisonment on account of religion, the protestant martyrology contains no confessor of superior rank.[148] The same accommodating spirit characterised, upon the whole, the clergy; and would have been far more general, if a considerable number had not availed themselves of the permission to marry granted by Edward; which led to their expulsion from their cures on his sister's coming to the throne.[149] Yet it was not the temper of Mary's parliaments, whatever pains had been taken about their election, to second her bigotry in surrendering the temporal fruits of their recent schism. The bill for restoring first fruits and impropriations in the queen's hands to the church passed not without difficulty; and it was found impossible to obtain a repeal of the Act of Supremacy without the pope's explicit confirmation of the abbey lands to their new proprietors. Even this confirmation, though made through the legate Cardinal Pole, by virtue of a full commission, left not unreasonably an apprehension that, on some better opportunity, the imprescriptible nature of church property might be urged against the possessors.[150] With these selfish considerations others of a more generous nature conspired to render the old religion more obnoxious than it had been at the queen's accession. Her marriage with Philip, his encroaching disposition, the arbitrary turn of his counsels, the insolence imputed to the Spaniards who accompanied him, the unfortunate loss of Calais through that alliance, while it thoroughly alienated the kingdom from Mary, created a prejudice against the religion which the Spanish court so steadily favoured.[151] So violent indeed was the hatred conceived by the English nation against Spain during the short period of Philip's marriage with their queen, that it diverted the old channel of public feelings, and almost put an end to that dislike and jealousy of France which had so long existed. For at least a century after this time we rarely find in popular writers any expression of hostility towards that country; though their national manners, so remote from our own, are not unfrequently the object of ridicule. The prejudices of the populace, as much as the policy of our counsellors, were far more directed against Spain. _Its effect rather favourable to protestantism._--But what had the greatest efficacy in disgusting the English with Mary's system of faith, was the cruelty by which it was accompanied. Though the privy council were in fact continually urging the bishops forward in this prosecution,[152] the latter bore the chief blame, and the abhorrence entertained for them naturally extended to the doctrine they professed. A sort of instinctive reasoning told the people, what the learned on neither side had been able to discover, that the truth of a religion begins to be very suspicious, when it stands in need of prisons and scaffolds to eke out its evidences. And as the English were constitutionally humane, and not hardened by continually witnessing the infliction of barbarous punishments, there arose a sympathy for men suffering torments with such meekness and patience, which the populace of some other nations were perhaps less apt to display, especially in executions on the score of heresy.[153] The theologian indeed and the philosopher may concur in deriding the notion that either sincerity or moral rectitude can be the test of truth; yet among the various species of authority to which recourse had been had to supersede or to supply the deficiencies of argument, I know not whether any be more reasonable, and none certainly is so congenial to unsophisticated minds. Many are said to have become protestants under Mary, who, at her coming to the throne, had retained the contrary persuasion.[154] And the strongest proof of this may be drawn from the acquiescence of the great body of the kingdom in the re-establishment of protestantism by Elizabeth, when compared with the seditions and discontent on that account under Edward. The course which this famous princess steered in ecclesiastical concerns, during her long reign, will form the subject of the two ensuing chapters. FOOTNOTES: [83] Burnet. Reeves's _History of the Law_, iv. p. 308. The contemporary authority is Keilwey's Reports. Collier disbelieves the murder of Hun on the authority of Sir Thomas More; but he was surely a prejudiced apologist of the clergy, and this historian is hardly less so. An entry on the journals, 7 H. 8, drawn of course by some ecclesiastic, particularly complains of Standish as the author of periculosissimæ seditiones inter clericam et secularem potestatem. [84] Burnet is confident that the answer to Luther was not written by Henry (vol. iii. 171), and others have been of the same opinion. The king, however, in his answer to Luther's apologetical letter, where this was insinuated, declares it to be his own. From Henry's general character and proneness to theological disputation, it may be inferred that he had at least a considerable share in the work, though probably with the assistance of some who had more command of the Latin language. Burnet mentions in another place, that he had seen a copy of the _Necessary Erudition of a Christian Man_, full of interlineations by the king. [85] Epist. Lutheri ad Henricum regem missa, etc. Lond. 1526. The letter bears date at Wittenberg, September 1, 1525. It had no relation, therefore, to Henry's quarrel with the Pope, though probably Luther imagined that the king was becoming more favourably disposed. After saying that he had written against the king "stultus ac præceps," which was true, he adds, "invitantibus iis qui majestati tuæ parum favebant," which was surely a pretence; since who, at Wittenberg, in 1521, could have any motive to wish that Henry should be so scurrilously treated? He then bursts out into the most absurd attack on Wolsey; "illud monstrum et publicum odium Dei et hominum, Cardinalis Eboracensis, pestis illa regni tui." This was a singular style to adopt in writing to a king, whom he affected to propitiate; Wolsey being nearer than any man to Henry's heart. Thence, relapsing into his tone of abasement, he says, "ita ut vehementer nunc pudefactus, metuam oculos coram majestate tuâ levare, qui passus sim levitate istâ me moveri in talem tantumque regem per malignos istos operarios; præsertim cum sim foex et vermis, quem solo contemptu oportuit victum aut neglectum esse," etc. Among the many strange things which Luther said and wrote, I know not one more extravagant than this letter, which almost justifies the supposition that there was a vein of insanity in his very remarkable character. [86] Collier, vol. ii. Appendix, No. 2. In the _Hardwicke Papers_, i. 13, we have an account of the ceremonial of the first marriage of Henry with Catherine in 1503. It is remarkable that a person was appointed to object publicly in Latin to the marriage, as unlawful, for reasons he should there exhibit; "whereunto Mr. Doctor Barnes shall reply, and declare solemnly, also in Latin, the said marriage to be good and effectual in the law of Christ's church, by virtue of a dispensation, which he shall have then to be openly read." There seems to be something in this of the tortuous policy of Henry VII.; but it shows that the marriage had given offence to scrupulous minds. [87] See Burnet, Lingard, Turner, and the letters lately printed in State Papers, temp. Henry VIII. pp. 194, 196. [88] Burnet wishes to disprove the bribery of these foreign doctors. But there are strong presumptions that some opinions were got by money (Collier, ii. 58); and the greatest difficulty was found, where corruption perhaps had least influence, in the Sorbonne. Burnet himself proves that some of the cardinals were bribed by the king's ambassador, both in 1528 and 1532. Vol. i. Append. pp. 30, 110. See, too, Strype, i. Append. No. 40. The same writer will not allow that Henry menaced the university of Oxford in case of non-compliance; yet there are three letters of his to them, a tenth part of which, considering the nature of the writer, was enough to terrify his readers. Vol. iii. Append. p. 25. These probably Burnet did not know when he published his first volume. [89] The king's marriage is related by the earlier historians to have taken place November 14, 1532. Burnet however is convinced by a letter of Cranmer, who, he says, could not be mistaken, though he was not apprised of the fact till some time afterwards, that it was not solemnised till about the 25th of January (vol. iii. p. 70). This letter has since been published in the _Archæologia_, vol. xviii., and in Ellis's _Letters_, ii. 34. Elizabeth was born September 7, 1533; for though Burnet, on the authority, he says, of Cranmer, places her birth on September 14, the former date is decisively confirmed by letters in Harl. MSS. 283, 22, and 787, 1 (both set down incorrectly in the catalogue). If a late historian therefore had contented himself with commenting on these dates and the clandestine nature of the marriage, he would not have gone beyond the limits of that character of an advocate for one party which he has chosen to assume. It may not be unlikely, though by no means evident, that Anne's prudence, though, as Fuller says of her, "she was cunning in her chastity," was surprised at the end of this long courtship. I think a prurient curiosity about such obsolete scandal very unworthy of history. But when this author asserts Henry to have cohabited with her for three years, and repeatedly calls her his mistress, when he attributes Henry's patience with the pope's chicanery to "the infecundity of Anne," and all this on no other authority than a letter of the French ambassador, which amounts hardly to evidence of a transient rumour, we cannot but complain of a great deficiency in historical candour. [90] The principal authority on the story of Henry's divorce from Catherine is Burnet, in the first and third volumes of his _History of the Reformation_; the latter correcting the former from additional documents. Strype, in his _Ecclesiastical Memorials_, adds some particulars not contained in Burnet, especially as to the negotiations with the pope in 1528; and a very little may be gleaned from Collier, Carte, and other writers. There are few parts of history, on the whole, that have been better elucidated. One exception perhaps may yet be made. The beautiful and affecting story of Catherine's behaviour before the legates at Dunstable is told by Cavendish and Hall, from whom later historians have copied it. Burnet, however, in his third volume, p. 46, disputes its truth, and on what should seem conclusive authority, that of the original register, whence it appears that the queen never came into court but once, June 18, 1529, to read a paper protesting against the jurisdiction, and that the king never entered it. Carte accordingly treated the story as a fabrication. Hume of course did not choose to omit so interesting a circumstance; but Dr. Lingard has pointed out a letter of the king, which Burnet himself had printed, vol. i. Append. 78, mentioning the queen's presence as well as his own, on June 21, and greatly corroborating the popular account. To say the truth, there is no small difficulty in choosing between two authorities so considerable, if they cannot be reconciled, which seems impossible: but, upon the whole, the preference is due to Henry's letter, dated June 23, as he could not be mistaken, and had no motive to misstate. This is not altogether immaterial; for Catherine's appeal to Henry, de integritate corporis usque ad secundas nuptias servatâ, without reply on his part, is an important circumstance as to that part of the question. It is however certain, that, whether on this occasion or not, she did constantly declare this; and the evidence adduced to prove the contrary is very defective, especially as opposed to the assertion of so virtuous a woman. Dr. Lingard says that all the favourable answers which the king obtained from foreign universities went upon the supposition that the former marriage had been consummated, and were of no avail unless that could be proved. See a letter of Wolsey to the king, July 1, 1527, printed in State Papers, temp. Henry VIII. p. 194; whence it appears that the queen had been consistent in her denial. [91] Stat. 21, Hen. 8, cc. 5, 6; Strype, i. 73; Burnet, 83. It cost a thousand marks to prove Sir William Compton's will in 1528. These exactions had been much augmented by Wolsey, who interfered, as legate, with the prerogative court. [92] It is hard to say what were More's original sentiments about the divorce. In a letter to Cromwell (Strype, i. 183, and App. No. 48; Burnet, App. p. 280) he speaks of himself as always doubtful. But, if his disposition had not been rather favourable to the king, would he have been offered, or have accepted, the great seal? We do not indeed find his name in the letter of remonstrance to the pope, signed by the nobility and chief commoners in 1530, which Wolsey, though then in disgrace, very willingly subscribed. But in March, 1531, he went down to the House of Commons, attended by several lords, to declare the king's scruples about his marriage, and to lay before them the opinions of universities. In this he perhaps thought himself acting ministerially. But there can be no doubt that he always considered the divorce as a matter wholly of the pope's competence, and which no other party could take out of his hands, though he had gone along cheerfully, as Burnet says, with the prosecution against the clergy, and wished to cut off the illegal jurisdiction of the Roman see. The king did not look upon him as hostile; for even so late as 1532, Dr. Bennet, the envoy at Rome, proposed to the pope that the cause should be tried by four commissioners, of whom the king should name one, either Sir Thomas More or Stokesly, Bishop of London. Burnet, i. 126. [93] Dr. Lingard has pointed out, as Burnet had done less distinctly, that the bill abrogating the papal supremacy was brought into the Commons in the beginning of March, and received the royal assent on the 30th; whereas the determination of the conclave at Rome against the divorce was on the 23rd; so that the latter could not have been the cause of this final rupture. Clement VII. might have been outwitted in his turn by the king, if, after pronouncing a decree in favour of the divorce, he had found it too late to regain his jurisdiction in England. On the other hand, so flexible were the parliaments of this reign, that, if Henry had made terms with the pope, the supremacy might have revived again as easily as it had been extinguished. [94] Burnet, iii. 44; and App. 24. [95] Conf. Burnet, i. 94, and App. No. 35; Strype, i. 230; Sleidan, _Hist. de la Réformation_ (par Courayer), l. 10. The notions of these divines, as here stated, are not very consistent or intelligible. The Swiss reformers were in favour of the divorce, though they advised that the Princess Mary should not be declared illegitimate. Luther seems to have inclined towards compromising the difference by the marriage of a secondary wife. Lingard, p. 172. Melancthon, this writer says, was of the same opinion. Burnet indeed denies this; but it is rendered not improbable by the well-authenticated fact that these divines, together with Bucer, signed a permission to the landgrave of Hesse to take a wife or concubine, on account of the drunkenness and disagreeable person of his landgravine. Bossuet, _Hist. des Var. des Egl. Protest_. vol. i., where the instrument is published. Clement VII., however, recommended the king to marry immediately, and then prosecute his suit for a divorce, which it would be easier for him to obtain in such circumstances. This was as early as January, 1528 (Burnet, i., App. p. 27). But at a much later period, September 1530, he expressly suggested the expedient of allowing the king to retain two wives. Though the letter of Cassali, the king's ambassador at Rome, containing this proposition, was not found by Burnet, it is quoted at length by an author of unquestionable veracity, Lord Herbert. Henry had himself, at one time, favoured this scheme, according to Burnet, who does not, however, produce any authority for the instructions to that effect said to have been given to Brian and Vannes, despatched to Rome at the end of 1528. But at the time when the pope made this proposal, the king had become exasperated against Catherine, and little inclined to treat either her or the holy see with any respect. [96] Strype, i. 151 _et alibi_. [97] Strype, _passim_. Tunstal, Gardiner, and Bonner wrote in favour of the royal supremacy; all of them, no doubt, insincerely. The first of these has escaped severe censure by the mildness of his general character, but was full as much a temporiser as Cranmer. But the history of this period has been written with such undisguised partiality by Burnet and Strype on the one hand, and lately by Dr. Lingard on the other, that it is almost amusing to find the most opposite conclusions and general results from nearly the same premises. Collier, though with many prejudices of his own, is, all things considered, the fairest of our ecclesiastical writers as to this reign. [98] Burnet, 188. For the methods by which the regulars acquired wealth, fair and unfair, I may be allowed to refer to the _View of the Middle Ages_, ch. 7, or rather to the sources from which the sketch there given was derived. [99] Harmer's _Specimens of Errors in Burnet_. [100] Strype, i. Append. 19. [101] Burnet; Strype. Wolsey alleged as the ground for this suppression, the great wickedness that prevailed therein. Strype says the number is twenty; but Collier, ii. 19, reckons them at forty. [102] Collier, though not implicitly to be trusted, tells some hard truths, and charges Cromwell with receiving bribes from several abbeys, in order to spare them. P. 159. This is repeated by Lingard, on the authority of some Cottonian manuscripts. Even Burnet speaks of the violent proceedings of a Doctor Loudon towards the monasteries. This man was of infamous character, and became afterwards a conspirator against Cranmer, and a persecutor of protestants. [103] Burnet, 190; Strype, i. ch. 35, see especially p. 257; Ellis's _Letters_, ii. 71. We should be on our guard against the Romanising high-church men, such as Collier, and the whole class of antiquaries, Wood, Hearne, Drake, Browne, Willis, etc., etc., who are, with hardly an exception, partial to the monastic orders, and sometimes scarce keep on the mask of protestantism. No one fact can be better supported by current opinion, and that general testimony which carries conviction, than the relaxed and vicious state of those foundations for many ages before their fall. Ecclesiastical writers had not then learned, as they have since, the trick of suppressing what might excite odium against their church, but speak out boldly and bitterly. Thus we find in Wilkins, iii. 630, a bull of Innocent VIII. for the reform of monasteries in England, charging many of them with dissoluteness of life. And this is followed by a severe monition from Archbishop Morton to the abbot of St. Alban's, imputing all kinds of scandalous vices to him and his monks. Those who reject at once the reports of Henry's visitors will do well to consider this. See also Fosbrooke's _British Monachism, passim_. [104] The preamble of 27 H. 8, c. 28, which gives the smaller monasteries to the king, after reciting that "manifest sin, vicious, carnal, and abominable living, is daily used and committed commonly in such little and small abbeys, priories, and other religious houses of monks, canons, and nuns, where the congregation of such religious persons is under the number of twelve persons," bestows praise on many of the greater foundations, and certainly does not intimate that their fate was so near at hand. Nor is any misconduct alleged or insinuated against the greater monasteries in the act 31 H. 8, c. 13, that abolishes them; which is rather more remarkable, as in some instances the religious had been induced to confess their evil lives and ill deserts. Burnet, 236. [105] _Id. ibid._ and Append. p. 151; Collier, 167. The pensions to the superiors of the dissolved greater monasteries, says a writer not likely to spare Henry's government, appear to have varied from £266 to £6 per annum. The priors of cells received generally £13. A few, whose services had merited the distinction, obtained £20. To the other monks were allotted pensions of six, four, or two pounds, with a small sum to each at his departure, to provide for his immediate wants. The pensions to nuns averaged about £4. Lingard, vi. 341. He admits that these were ten times their present value in money; and surely they were not unreasonably small. Compare them with those, generally and justly thought munificent, which this country bestows on her veterans of Chelsea and Greenwich. The monks had no right to expect more than the means of that hard fare to which they ought by their rules to have been confined in the convents. The whole revenues were not to be shared among them as private property. It cannot of course be denied that the compulsory change of life was to many a severe and an unmerited hardship; but no great revolution, and the Reformation as little as any, could be achieved without much private suffering. [106] The abbots sat till the end of the first session of Henry's sixth parliament, the act extinguishing them not having passed till the last day. In the next session they do not appear, the writ of summons not being supposed to give them personal seats. There are indeed so many parallel instances among spiritual lords, and the principle is so obvious, that it would not be worth noticing, but for a strange doubt said to be thrown out by some legal authorities, near the beginning of George III.'s reign, in the case of Pearce, Bishop of Rochester, whether, after resigning his see, he would not retain his seat as a lord of parliament; in consequence of which his resignation was not accepted. [107] Burnet, i. Append. 96. [108] P. 268. Dr. Lingard, on the authority of Nasmith's edition of Tanner's _Notitia Monastica_, puts the annual revenue of all the monastic houses at £142,914. This would only be one-twentieth part of the rental of the kingdom, if Hume were right in estimating that at three millions. But this is certainly by much too high. The author of Harmer's _Observations on Burnet_, as I have mentioned above, says the monks will be found not to have possessed above one-fifth of the kingdom, and in value, by reason of their long leases, not one-tenth. But on this supposition, the crown's gain was enormous. According to a valuation in Speed's _Catalogue of Religious Houses, apud_ Collier, Append. p. 34, sixteen mitred abbots had revenues above £1000 per annum. St. Peter's, Westminster, was the richest, and valued at £3977, Glastonbury at £3508, St. Alban's at £2510, etc. [109] An act entitling the queen to take into her hands, on the avoidance of any bishopric, so much of the lands belonging to it as should be equal in value to the impropriate rectories, etc., within the same, belonging to the crown, and to give the latter in exchange, was made (1 Eliz. c. 19). This bill passed on a division in the Commons by 104 to 90, and was ill taken by some of the bishops, who saw themselves reduced to live on the lawful subsistence of the parochial clergy. Strype's _Annals_, i. 68, 97. [110] Burnet, 268, 339. In Strype, i. 211, we have a paper drawn up by Cromwell for the king's inspection, setting forth what might be done with the revenues of the lesser monasteries. Among a few other particulars are the following: "His grace may furnish 200 gentlemen to attend on his person; every one of them to have 100 marks yearly--20,000 marks. His highness may assign to the yearly reparation of highways in sundry parts, or the doing of other good deeds for the commonwealth, 5000 marks." In such scant proportion did the claims of public utility come after those of selfish pomp, or rather perhaps, looking more attentively, of cunning corruption. [111] Burnet, i. 223. [112] It is a favourite theory with many who regret the absolute secularisation of conventual estates, that they might have been rendered useful to learning and religion by being bestowed on chapters and colleges. Thomas Whitaker has sketched a pretty scheme for the abbey of Whalley, wherein, besides certain opulent prebendaries, he would provide for schoolmasters and physicians. I suppose this is considered an adherence to the donor's intention, and no sort of violation of property; somewhat on the principle called _cy près_, adopted by the court of chancery in cases of charitable bequests; according to which, that tribunal, if it holds the testator's intention unfit to be executed, carries the bequest into effect by doing what it presumes to come next in his wishes, though sometimes very far from them. It might be difficult indeed to prove that a Norman baron, who, not quite easy about his future prospects, took comfort in his last hours from the anticipation of daily masses for his soul, would have been better satisfied that his lands should maintain a grammar-school, than that they should escheat to the crown. But to waive this, and to revert to the principle of public utility, it may possibly be true that, in one instance, such as Whalley, a more beneficial disposition could have been made in favour of a college than by granting away the lands. But the question is, whether all, or even a great part, of the monastic estates could have been kept in mortmain with advantage. We may easily argue that the Derwentwater property, applied as it has been, has done the state more service, than if it had gone to maintain a race of Ratcliffes, and been squandered at White's or Newmarket. But does it follow that the kingdom would be the more prosperous, if all the estates of the peerage were diverted to similar endowments? And can we seriously believe that, if such a plan had been adopted at the suppression of monasteries, either religion or learning would have been the better for such an inundation of prebendaries and schoolmasters? [113] The first act for the relief of the impotent poor passed in 1535 (27 H. 8, c. 25). By this statute no alms were allowed to be given to beggars, on pain of forfeiting ten times the value; but a collection was to be made in every parish. The compulsory contributions, properly speaking, began in 1572 (14 Eliz. c. 5). But by an earlier statute (1 Edward 6, c. 3), the bishop was empowered to proceed in his court against such as should refuse to contribute, or dissuade others from doing so. [114] The _Institution_ was printed in 1537; the _Erudition_, according to Burnet, in 1540; but in Collier and Strype's opinion, not till 1543. They are both artfully drawn, probably in the main by Cranmer, but not without the interference of some less favourable to the new doctrine, and under the eye of the king himself. Collier, 137, 189. The doctrinal variations in these two summaries of royal faith are by no means inconsiderable. [115] Strype, i. 165. A statute enacted in 1534 (25 H. 8, c. 15), after reciting that "at this day there be within this realm a great number cunning and expert in printing, and as able to execute the said craft as any stranger," proceeds to forbid the sale of bound books imported from the Continent. A terrible blow was thus levelled both against general literature and the reformed religion; but, like many other bad laws, produced very little effect. [116] The accounts of early editions of the English Bible in Burnet, Collier, Strype, and an essay by Johnson in Watson's _Theological Tracts,_ vol. iii., are erroneous or defective. A letter of Strype in Harleian MSS. 3782, which has been printed, is better; but the most complete enumeration is in Cotton's list of editions, 1821. The dispersion of the Scriptures, with full liberty to read them, was greatly due to Cromwell, as is shown by Burnet. Even after his fall, a proclamation, dated May 6, 1542, referring to the king's former injunctions for the same purpose, directs a large Bible to be set up in every parish church. But, next year, the Duke of Norfolk and Gardiner prevailing over Cranmer, Henry retraced a part of his steps; and the act 34 H. 8, c. 1. forbids the sale of Tindal's "false translation," and the reading of the Bible in churches, or by yeomen, women, and other incapable persons. The popish bishops, well aware how much turned on this general liberty of reading the Scriptures, did all in their power to discredit the new version. Gardiner made a list of about one hundred words which he thought unfit to be translated, and which, in case of an authorised version (whereof the clergy in convocation had reluctantly admitted the expediency), ought, in his opinion, to be left in Latin. Tindal's translation may, I apprehend, be reckoned the basis of that now in use, but has undergone several corrections before the last. It has been a matter of dispute whether it were made from the original languages or from the Vulgate. Hebrew and even Greek were very little known in England at that time. The edition of 1537, called Matthews's Bible, printed by Grafton, contains marginal notes reflecting on the corruptions of popery. These it was thought expedient to suppress in that of 1539, commonly called Cranmer's Bible, as having been revised by him, and in later editions. In all these editions of Henry's reign, though the version is properly Tindal's, there are, as I am informed, considerable variations and amendments. Thus, in Cranmer's Bible, the word _ecclesia_ is always rendered congregation, instead of church; either as the primary meaning, or, more probably, to point out that the laity had a share in the government of a Christian society. [117] Burnet, 318; Strype's _Life of Parker_, 18; Collier (187) is of course much scandalised. In his view of things, it had been better to give up the Reformation entirely, than to suffer one reflection on the clergy. These dramatic satires on that order had also an effect in promoting the Reformation in Holland. Brandt's _History of Reformation in Low Countries_, vol. i. p. 128. [118] I can hardly avoid doubting, whether Edward VI.'s journal, published in the second volume of Burnet, be altogether his own; because it is strange for a boy of ten years old to write with the precise brevity of a man of business. Yet it is hard to say how far an intercourse with able men on serious subjects may force a royal plant of such natural vigour; and his letters to his young friend Barnaby Fitzpatrick, published by H. Walpole in 1774, are quite unlike the style of a boy. One could wish this journal not to be genuine; for the manner in which he speaks of both his uncles' executions does not show a good heart. Unfortunately, however, there is a letter extant, of the king to Fitzpatrick, which must be genuine, and is in the same strain. He treated his sister Mary harshly about her religion, and had, I suspect, too much Tudor blood in his veins. It is certain that he was a very extraordinary boy, or, as Cardan calls him, monstrificus puellus; and the reluctance with which he yielded, on the solicitations of Cranmer, to sign the warrant for burning John Boucher, is as much to his honour, as it is against the archbishop's. [119] The litany had been translated into English in 1542. Burnet, i. 331; Collier, III, where it may be read, not much differing from that now in use. It was always held out by our church, when the object was conciliation, that the liturgy was essentially the same with the mass-book. Strype's _Annals_, ii. 39; Hollingshed, iii, 921 (4to edition). [120] It was observed, says Strype, ii. 79, that where images were left there was most contest, and most peace where they were all sheer pulled down, as they were in some places. [121] Collier, p. 257, enters into a vindication of the practice, which appears to have prevailed in the church from the second century. It was defended in general by the nonjurors, and the whole school of Andrews. But, independently of its wanting the authority of Scripture, which the reformers set up exclusively of all tradition, it contradicted the doctrine of justification by mere faith, in the strict sense which they affixed to that tenet. See preamble of the act for dissolution of chantries, 1 Edw. 6, c. 14. [122] Collier, p. 248, descants, in the true spirit of a high churchman, on the importance of confession. This also, as is well known, is one of the points on which his party disagreed with the generality of protestants. [123] Nostra sententia est, says Luther, _apud_ Burnet, 111, Appendix, 194, corpus ita cum pane, seu in pane esse, ut revera cum pane manducetur, et quemcunque motum vel actionem panis habet, eundem et corpus Christi. [124] "Bucer thought, that for avoiding contention, and for maintaining peace and quietness in the church, somewhat more ambiguous words should be used, that might have a respect to both persuasions concerning the presence. But Martyr was of another judgment, and affected to speak of the sacrament with all plainness and perspicuity." Strype, ii. 121. The truth is, that there were but two opinions at bottom as to this main point of the controversy; nor in the nature of things was it possible that there should be more; for what can be predicated concerning a body, in its relation to a given space, but presence and absence? [125] Burnet, ii. 105, App. 216; Strype, ii. 121, 208; Collier, etc. The Calvinists certainly did not own a local presence in the elements. It is the artifice of modern Romish writers, Dr. Milner, Mr. C. Butler, etc., to disguise the incompatibility of their tenets with those of the church of England on this, as they do on all other topics of controversy, by representing her as maintaining an actual, incomprehensible presence of Christ's body in the consecrated elements; which was never meant to be asserted in any authorised exposition of faith; though in the seventeenth century it was held by many distinguished churchmen. See the 27th, 28th, and 29th articles of religion. An eminent living writer, who would be as useful as he is agreeable, if he could bring himself to write with less heat and haste, says, that at Elizabeth's accession, among other changes, "the language of the article which affirmed a real presence was so framed as to allow latitude of belief for those who were persuaded of an exclusive one." Southey's _Book of the Church_, vol. ii. p. 247. The real presence was not affirmed, but denied, in the original draft; and as to what Mr. S. calls "an exclusive one" (that is, transubstantiation, if the words have any meaning), it is positively rejected in the amended article. [126] It appears to have been common for the clergy, by licence from their bishops, to retain concubines, who were, Collier says, for the most part their wives. P. 262. But I do not clearly understand in what the distinction could have consisted; for it seems unlikely that marriages of priests were ever solemnised at so late a period; or if they were, they were invalid. [127] Stat. 2 and 3 Edw. VI. c. 21; 5 and 6 Edw. VI. c. 12; Burnet, 89. [128] 2 Strype, 53. Latimer pressed the necessity of expelling these temporising conformists.--"Out with them all! I require it in God's behalf: make them _quondams_, all the pack of them." _Id._ 204; 2 Burnet, 143. [129] Burnet, iii. 190, 196. "The use of the old religion," says Paget, in remonstrating with Somerset on his rough treatment of some of the gentry, and partiality to the commons, "is forbidden by a law, and the use of the new is not yet printed in the stomachs of eleven out of twelve parts of the realm, whatever countenance men make outwardly to please them in whom they see the power resteth." Strype, ii. Appendix, H.H. This seems rather to refer to the upper classes, than to the whole people. But at any rate it was an exaggeration of the fact, the protestants being certainly in a much greater proportion. Paget was the adviser of the scheme of sending for German troops in 1549, which, however, was in order to quell a seditious spirit in the nation, not by any means wholly founded upon religious grounds. Strype, xi. 169. [130] 2 Edward 6, c. 1; Strype, xi. 81. [131] 37 H. 8, c. 2; 1 Edw. 6, c. 14; Strype, ii. 63; Burnet, etc. Cranmer, as well as the catholic bishops, protested against this act, well knowing how little regard would be paid to its intention. In the latter part of the young king's reign, as he became more capable of exerting his own power, he endowed, as is well known, several excellent foundations. [132] Strype, Burnet, Collier, _passim_; Harmer's _Specimens_, 100. Sir Philip Hobby, our minister in Germany, writes to the Protector in 1548, that the foreign protestants thought our bishops too rich, and advises him to reduce them to a competent living; he particularly recommends his taking away all the prebends in England. Strype, 88. These counsels, and the acts which they prompted, disgust us, from the spirit of rapacity they breathe. Yet it might be urged with some force that the enormous wealth of the superior ecclesiastics had been the main cause of those corruptions which it was sought to cast away, and that most of the dignitaries were very averse to the new religion. Even Cranmer had written some years before to Cromwell, deprecating the establishment of any prebends out of the conventual estates, and speaking of the collegiate clergy as an idle, ignorant, and gormandising race, who might, without any harm, be extinguished along with the regulars. Burnet, iii. 141. But the gross selfishness of the great men in Edward's reign justly made him anxious to save what he could for a church that seemed on the brink of absolute ruin. Collier mentions a characteristic circumstance. So great a quantity of church plate had been stolen, that a commission was appointed to enquire into the facts, and compel its restitution. Instead of this, the commissioners found more left than they thought sufficient, and seized the greater part to the king's use. [133] They declared, in the famous protestation of Spire, which gave them the name of Protestants, that their preachers having confuted the mass by passages of Scripture, they could not permit their subjects to go thither; since it would afford a bad example, to suffer two sorts of service, directly opposite to each other, in their churches. Schmidt, _Hist. des Allemands_, vi. 394, vii. 24. [134] Stat. 2 and 3 Edw. 6, c. 1; Strype's _Cranmer_, p. 233. [135] Burnet, 192. Somerset had always allowed her to exercise her religion, though censured for this by Warwick, who died himself a papist, but had pretended to fall in with the young king's prejudices. Her ill treatment was subsequent to the protector's overthrow. It is to be observed that, in her father's life, she had acknowledged his supremacy, and the justice of her mother's divorce. 1 Strype, 285; 2 Burnet, 241; Lingard, vi. 326. It was of course by intimidation; but that excuse might be made for others. Cranmer is said to have persuaded Henry not to put her to death, which we must in charity hope she did not know. [136] When Joan Boucher was condemned, she said to her judges, "It was not long ago since you burned Anne Askew for a piece of bread, and yet came yourselves soon after to believe and profess the same doctrine for which you burned her; and now you will needs burn me for a piece of flesh, and in the end you will come to believe this also when you have read the Scriptures and understand them." Strype, ii. 214. [137] Gardiner had some virtues, and entertained sounder notions of the civil constitution of England than his adversaries. In a letter to Sir John Godsalve, giving his reasons for refusing compliance with the injunctions issued by the council to the ecclesiastical visitors (which, Burnet says, does him more honour than anything else in his life), he dwells on the king's wanting power to command anything contrary to common law, or to a statute, and brings authorities for this. Burnet, ii. Append. 112. See also Lingard, vi. 387, for another instance. Nor was this regard to the constitution displayed only when out of the sunshine. For in the next reign he was against despotic counsels, of which an instance has been given in the last chapter. His conduct, indeed, with respect to the Spanish connection, is equivocal. He was much against the marriage at first, and took credit to himself for the securities exacted in the treaty with Philip, and established by statute. Burnet, ii. 267. But afterwards, if we may trust Noailles, he fell in with the Spanish party in the council, and even suggested to parliament that the queen should have the same power as her father to dispose of the succession by will. _Ambassades de Noailles_, iii. 153, etc., etc. Yet according to Dr. Lingard, on the imperial ambassador's authority, he saved Elizabeth's life against all the council. The article GARDINER, in the _Biographia Britannica_, contains an elaborate and partial apology, at great length; and the historian just quoted has of course said all he could in favour of one who laboured so strenuously for the extirpation of the northern heresy. But he was certainly not an honest man, and had been active in Henry's reign against his real opinions. Even if the ill treatment of Gardiner and Bonner by Edward's council could be excused (and the latter by his rudeness might deserve some punishment), what can be said for the imprisonment of the bishops Heath and Day, worthy and moderate men, who had gone a great way with the reformation, but objected to the removal of altars, an innovation by no means necessary, and which should have been deferred till the people had grown ripe for further change? Mr. Southey says, "Gardiner and Bonner were deprived of their sees and imprisoned: but _no rigour was used towards them_." _Book of the Church_, ii. 111. Liberty and property being trifles! [138] The doctrines of the English church were set forth in 42 articles, drawn up, as is generally believed, by Cranmer and Ridley, with the advice of Bucer and Martyr, and perhaps of Cox. The three last of these, condemning some novel opinions, were not renewed under Elizabeth, and a few other variations were made; but upon the whole there is little difference, and none perhaps in those tenets which have been most the object of discussion. See the original Articles in Burnet, ii. App. N. 55. They were never confirmed by a convocation or a parliament, but imposed by the king's supremacy on all the clergy, and on the universities. His death however, ensued before they could be actually subscribed. [139] Strype's _Cranmer_, Appendix, p. 9. I am sorry to find a respectable writer inclining to vindicate Cranmer in this protestation, which Burnet admits to agree better with the maxims of the casuists than with the prelate's sincerity: Todd's Introduction to _Cranmer's Defence of the True Doctrine of the Sacrament_ (1825), p. 40. It is of no importance to enquire, whether the protest were made publicly or privately. Nothing can possibly turn upon this. It was, on either supposition, unknown to the promisee, the pope at Rome. The question is, whether, having obtained the bulls from Rome on an express stipulation that he should take a certain oath, he had a right to offer a limitation, not explanatory, but utterly inconsistent with it? We are sure that Cranmer's views and intentions, which he very soon carried into effect, were irreconcilable with any sort of obedience to the pope; and if, under all the circumstances, his conduct was justifiable, there would be an end of all promissory obligations whatever. [140] The character of Cranmer is summed up in no unfair manner by Mr. C. Butler, _Memoirs of English Catholics_, vol. i. p. 139; except that his obtaining from Anne Boleyn an acknowledgment of her supposed pre-contract of marriage, having proceeded from motives of humanity, ought not to incur much censure, though the sentence of nullity was a mere mockery of law.--Poor Cranmer was compelled to subscribe not less than six recantations. Strype (iii. 232) had the integrity to publish all these, which were not fully known before. [141] Burnet, ii. 6. [142] There are two curious entries in the Lords' Jour., 14th and 18th of November 1549, which point out the origin of the new code of ecclesiastical law mentioned in the next note: "Hodie questi sunt episcopi, contemni se a plebe, audere autem nihil pro potestate suâ administrare, eo quod per publicas quasdam denuntiationes quas proclamationes vocant, sublata esset penitus sua jurisdictio, adeo ut neminem judicio sistere, nullum scelus punire, neminem ad ædem sacram cogere, neque cætera id genus munia ad eos pertinentia exequi auderent. Hæc querela ab omnibus proceribus non sine moerore audita est; et ut quam citissimè huic malo subveniretur, injunctum est episcopis ut formulam aliquam statuti hâc de re scriptam traderent: quæ si consilio postea prælecta omnibus ordinibus probaretur, pro lege omnibus sententiis sanciri posset. "18 November. Hodie lecta est billa pro jurisdictione episcoporum et aliorum ecclesiasticorum, quæ cum proceribus, _eo quod episcopi nimis sibi arrogare viderentur_, non placeret, visum est deligere prudentes aliquot viros utriusque ordinis, qui habitâ maturâ tantæ rei inter se deliberatione, referrent toti consilio quid pro ratione temporis et rei necessitate in hac causa agi expediret." Accordingly, the Lords appoint the Archbishop of Canterbury, the Bishops of Ely, Durham, and Lichfield, Lords Dorset, Wharton, and Stafford, with Chief Justice Montague. [143] It had been enacted, 3 Edw. 6, c. 11, that thirty-two commissioners, half clergy, half lay, should be appointed to draw up a collection of new canons. But these, according to Strype, ii. 303 (though I do not find it in the act), might be reduced to eight, without preserving the equality of orders; and of those nominated in November 1551, five were ecclesiastics, three laymen. The influence of the former shows itself in the collection, published with the title of _Reformatio Legum Ecclesiasticûm_, and intended as a complete code of protestant canon law. This was referred for revisal to a new commission; but the king's death ensued, and the business was never again taken up. Burnet, ii. 197; Collier, 326. The Latin style is highly praised; Cheke and Haddon, the most elegant scholars of that age, having been concerned in it. This however is of small importance. The canons are founded on a principle current among the clergy, that a rigorous discipline, enforced by church censures and the aid of the civil power, is the best safeguard of a christian commonwealth against vice. But it is easy to perceive that its severity would never have been endured in this country, and that this was the true reason why it was laid aside; not, according to the improbable refinement with which Warburton has furnished Hurd, because the old canon law was thought more favourable to the prerogative of the Crown. Compare Warburton's _Letters to Hurd_, p. 192, with the latter's _Moral and Political Dialogues_, p. 308, 4th edit. The canons trench in several places on the known province of the common law, by assigning specific penalties and forfeitures to offences, as in the case of adultery; and though it is true that this was all subject to the confirmation of parliament, yet the lawyers would look with their usual jealousy on such provisions in ecclesiastical canons. But the great sin of this protestant legislation is its extension of the name and penalties of heresy to the wilful denial of any part of the authorised articles of faith. This is clear from the first and second titles. But it has been doubted whether capital punishments for this offence were intended to be preserved. Burnet, always favourable to the reformers, asserts that they were laid aside. Collier and Lingard, whose bias is the other way, maintain the contrary. There is, it appears to me, some difficulty in determining this. That all persons denying any one of the articles might be turned over to the secular power is evident. Yet it rather seems by one passage in the title, de judiciis contra hæreses, c. 10, that infamy and civil disability were the only punishments intended to be kept up, except in case of the denial of the christian religion. For if a heretic were, as a matter of course, to be burned, it seems needless to provide, as in this chapter, that he should be incapable of being a witness, or of making a will. Dr. Lingard, on the other hand, says, "It regulates the delivery of the obstinate heretic to the civil magistrate, that he may _suffer death_ according to law." The words to which he refers are these: Cum sic penitus insederit error, et tam alte radices egerit, ut nec sententiâ quidem excommunicationis ad veritatem reus inflecti possit, tum consumptis omnibus aliis remediis, ad extremum ad civiles magistratus ablegetur _puniendus_. _Id._ tit. c. 4. It is generally best, where the words are at all ambiguous, to give the reader the power of judging for himself. But I by no means pretend that Dr. Lingard is mistaken. On the contrary, the language of this passage leads to a strong suspicion that the rigour of popish persecution was intended to remain, especially as the writ de hæretico comburendo was in force by law, and there is no hint of taking it away. Yet it seems monstrous to conceive that the denial of predestination (which by the way is asserted in this collection, tit. de hæresibus, c. 22, with a shade more of Calvinism than in the articles) was to subject any one to be burned alive. And on the other hand, there is this difficulty, that Arianism, Pelagianism, popery, anabaptism, are all put on the same footing; so that, if we deny that the papist or free-willer was to be burned, we must deny the same of the anti-trinitarian, which contradicts the principle and practice of that age. Upon the whole, I cannot form a decided opinion as to this matter. Dr. Lingard does not hesitate to say, "Cranmer and his associates perished in the flames which they had prepared to kindle for the destruction of their opponents." Upon further consideration, I incline to suspect that the temporal punishment of heresy was intended to be fixed by act of parliament; and probably with various degrees, which will account for the indefinite word "puniendus." Before I quit these canons, one mistake of Dr. Lingard's may be corrected. He says that divorces were allowed by them not only for adultery, but cruelty, desertion, and _incompatibility of temper_. But the contrary may be clearly shown, from tit. de matrimonio, c. 11, and tit. de divortiis, c. 12. Divorce was allowed for something more than incompatibility of temper; namely, _capitales inimicitiæ_, meaning, as I conceive, attempts by one party on the other's life. In this respect, their scheme of a very important branch of social law seems far better than our own. Nothing can be more absurd than our modern _privilegia_, our acts of parliament to break the bond between an adulteress and her husband. Nor do I see how we can justify the denial of redress to women in every case of adultery and desertion. It does not follow that the marriage tie ought to be dissolved as easily as it is, at least by the rich, in the Lutheran states of Germany. [144] Strype, _passim_. Burnet, ii. 154; iii. Append. 200; Collier, 294, 303. [145] Strype, Burnet. The former is more accurate. [146] Burnet, 237, 246; 3 Strype, 10, 341. No part of England suffered so much in the persecution. [147] _Ambassades de Noailles_, v. ii. _passim_. 3 Strype, 100. [148] Strype, iii. 107. He reckons the emigrants at 800. _Life of Cranmer_, 314. Of these the most illustrious was the Duchess of Suffolk, first cousin of the queen. In the parliament of 1555, a bill sequestering the property of "the Duchess of Suffolk and others, contemptuously gone over the seas," was rejected by the Commons on the third reading. Journals, 6th December. It must not be understood that all the aristocracy were supple hypocrites, though they did not expose themselves voluntarily to prosecution. Noailles tells us that the Earls of Oxford and Westmoreland, and Lord Willoughby, were censured by the council _for religion_; and it was thought that the former would lose his title (more probably his hereditary office of chamberlain), which would be conferred on the Earl of Pembroke, v. 319. Michele, the Venetian ambassador, in his Relazione del Stato d'Inghilterra, Lansdowne MSS. 840, does not speak favourably of the general affection towards popery. "The English in general," he says, "would turn Jews or Turks if their sovereign pleased; but the restoration of the abbey lands by the crown keeps alive a constant fear among those who possess them."--Fol. 176. This restitution of church lands in the hands of the Crown cost the queen £60,000 a year of revenue. [149] Parker had extravagantly reckoned the number of these at 12,000, which Burnet reduces to 3000, vol. iii. 226. But upon this computation they formed a very considerable body on the protestant side. Burnet's calculation, however, is made by assuming the ejected ministers of the diocese of Norwich to have been in the ratio of the whole; which, from the eminent protestantism of that district, is not probable; and Dr. Lingard, on Wharton's authority, who has taken his ratio from the diocese of Canterbury, thinks they did not amount to more than about 1500. [150] Burnet, ii. 298; iii. 245. But see Philips's _Life of Pole_, sect. ix. _contra_; and Ridley's answer to this, p. 272. In fact, no scheme of religion would on the whole have been so acceptable to the nation, as that which Henry left established, consisting chiefly of what was called catholic in doctrine, but free from the grosser abuses and from all connection with the see of Rome. Arbitrary and capricious as that king was, he carried the people along with him, as I believe, in all great points, both as to what he renounced, and what he retained. Michele (Relazione, etc.) is of this opinion. [151] No one of our historians has been so severe on Mary's reign, except on a religious account, as Carte, on the authority of the letters of Noailles. Dr. Lingard, though with these before him, has softened and suppressed, till this queen appears honest and even amiable. A man of sense should be ashamed of such partiality to his sect. Admitting that the French ambassador had a temptation to exaggerate the faults of a government wholly devoted to Spain, it is manifest that Mary's reign was inglorious, her capacity narrow, and her temper sanguinary; that, although conscientious in some respects, she was as capable of dissimulation as her sister, and of breach of faith as her husband; that she obstinately and wilfully sacrificed her subjects' affections and interests to a misplaced and discreditable attachment; and that the words with which Carte has concluded the character of this unlamented sovereign, though little pleasing to men of Dr. Lingard's profession, are perfectly just: "Having reduced the nation to the brink of ruin, she left it, by her seasonable decease, to be restored by her admirable successor to its ancient prosperity and glory." I fully admit, at the same time, that Dr. Lingard has proved Elizabeth to have been as dangerous a prisoner, as she afterwards found the Queen of Scots. [152] Strype, ii. 17; Burnet, iii. 263, and Append. 285, where there is a letter from the king and queen to Bonner, as if even he wanted excitement to prosecute heretics. The number who suffered death by fire in this reign is reckoned by Fox at 284, by Speed at 277, and by Lord Burghley at 290. Strype, iii. 473. These numbers come so near to each other, that they may be presumed also to approach the truth. But Carte, on the authority of one of Noailles's letters, thinks many more were put to death than our martyrologists have discovered. And the prefacer to Ridley's _Treatise de Coenâ Domini_, supposed to be Bishop Grindal, says that 800 suffered in this manner for religion. Burnet, ii. 364. I incline, however, to the lower statements. [153] Burnet makes a very just observation on the cruelties of this period, that "they raised that horror in the whole nation, that there seems ever since that time such an abhorrence to that religion to be derived down from father to son, that it is no wonder an aversion so deeply rooted and raised upon such grounds, does upon every new provocation or jealousy or returning to it break out in most violent and convulsive symptoms."--P. 338. "Delicta majorum immeritus luis, _Romane_." But those who would diminish this aversion, and prevent these convulsive symptoms, will do better by avoiding for the future either such panegyrics on Mary and her advisers, or such insidious extenuations of her persecution as we have lately read, and which do not raise a favourable impression of their sincerity in the principles of toleration to which they profess to have been converted. Noailles, who, though an enemy to Mary's government, must, as a catholic, be reckoned an unsuspicious witness, remarkably confirms the account given by Fox, and since by all our writers, of the death of Rogers, the proto-martyr, and its effect on the people. "Ce jour d'huy a esté faite la confirmation de 'alliance entre le pape et ce royaume par un sacrifice publique et solemnel d'un docteur predicant nommé Rogerus, le quel a eté brulé tout vif pour estre Lutherien; mais il est mort persistant en son opinion. A quoy le plus grand partie de ce peuple a pris tel plaisir, qu'ils n'ont eu crainte de luy faire plusieurs acclamations pour comforter son courage; et meme ses enfans y on assisté, le consolant de telle façon qu'il semblait qu'on le menait aux noces."--V. 173. [154] Strype, iii. 285. CHAPTER III ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE ROMAN CATHOLICS _Change of religion on the queen's accession._--The accession of Elizabeth, gratifying to the whole nation on account of the late queen's extreme unpopularity, infused peculiar joy into the hearts of all well-wishers to the Reformation. Child of that famous marriage which had severed the connection of England with the Roman see, and trained betimes in the learned and reasoning discipline of protestant theology, suspected and oppressed for that very reason by a sister's jealousy, and scarcely preserved from the death which at one time threatened her, there was every ground to be confident, that, notwithstanding her forced compliance with the catholic rites during the late reign, her inclinations had continued steadfast to the opposite side.[155] Nor was she long in manifesting this disposition sufficiently to alarm one party, though not entirely to satisfy the other. Her great prudence, and that of her advisers, which taught her to move slowly, while the temper of the nation was still uncertain, and her government still embarrassed with a French war and a Spanish alliance, joined with a certain tendency in her religious sentiments not so thoroughly protestant as had been expected, produced some complaints of delay from the ardent reformers just returned from exile. She directed Sir Edward Karn, her sister's ambassador at Rome, to notify her accession to Paul IV. Several catholic writers have laid stress on this circumstance as indicative of a desire to remain in his communion; and have attributed her separation from it to his arrogant reply, commanding her to lay down the title of royalty, and to submit her pretentions to his decision. But she had begun to make alterations, though not very essential, in the church service, before the pope's behaviour could have become known to her; and the bishops must have been well aware of the course she designed to pursue, when they adopted the violent and impolitic resolution of refusing to officiate at her coronation.[156] Her council was formed of a very few catholics, of several pliant conformists with all changes, and of some known friends to the protestant interest. But two of these, Cecil and Bacon, were so much higher in her confidence, and so incomparably superior in talents to the other counsellors, that it was evident which way she must incline.[157] The parliament met about two months after her accession. The creed of parliament from the time of Henry VIII. had been always that of the court; whether it were that elections had constantly been influenced, as we know was sometimes the case, or that men of adverse principles, yielding to the torrent, had left the way clear to the partisans of power. This first, like all subsequent parliaments, was to the full as favourable to protestantism as the queen could desire: the first fruits of benefices, and, what was far more important, the supremacy in ecclesiastical affairs, were restored to the Crown; the laws made concerning religion in Edward's time were re-enacted. These acts did not pass without considerable opposition among the lords; nine temporal peers, besides all the bishops, having protested against the bill of uniformity establishing the Anglican liturgy, though some pains had been taken to soften the passages most obnoxious to catholics.[158] But the act restoring the royal supremacy met with less resistance; whether it were that the system of Henry retained its hold over some minds, or that it did not encroach, like the former, on the liberty of conscience, or that men not over-scrupulous were satisfied with the interpretation which the queen caused to be put upon the oath. Several of the bishops had submitted to the Reformation under Edward VI. But they had acted, in general, so conspicuous a part in the late restoration of popery, that, even amidst so many examples of false profession, shame restrained them from a second apostasy. Their number happened not to exceed sixteen, one of whom was prevailed on to conform; while the rest, refusing the oath of supremacy, were deprived of their bishoprics by the court of ecclesiastical high commission. In the summer of 1559, the queen appointed a general ecclesiastical visitation, to compel the observance of the protestant formularies. It appears from their reports that only about one hundred dignitaries, and eighty parochial priests, resigned their benefices, or were deprived.[159] Men eminent for their zeal in the protestant cause, and most of them exiles during the persecution, occupied the vacant sees. And thus, before the end of 1559, the English church, so long contended for as a prize by the two religions, was lost for ever to that of Rome. _Acts of supremacy and uniformity._--These two statutes, commonly denominated the acts of supremacy and uniformity, form the basis of that restrictive code of laws, deemed by some one of the fundamental bulwarks, by others the reproach of our constitution, which pressed so heavily for more than two centuries upon the adherents to the Romish church. By the former all beneficed ecclesiastics, and all laymen holding office under the Crown, were obliged to take the oath of supremacy, renouncing the spiritual as well as temporal jurisdiction of every foreign prince or prelate, on pain of forfeiting their office or benefice; and it was rendered highly penal, and for the third offence treasonable, to maintain such supremacy by writing or advised speaking.[160] The latter statute trenched more on the natural rights of conscience; prohibiting, under pain of forfeiting goods and chattels for the first offence, of a year's imprisonment for the second, and of imprisonment during life for the third, the use by a minister, whether beneficed or not, of any but the established liturgy; and imposed a fine of one shilling on all who should absent themselves from church on Sundays and holidays.[161] _Restraint of Roman catholic worship in the first years of Elizabeth._--This act operated as an absolute interdiction of the catholic rites, however privately celebrated. It has frequently been asserted that the government connived at the domestic exercise of that religion during these first years of Elizabeth's reign. This may possibly have been the case with respect to some persons of very high rank whom it was inexpedient to irritate. But we find instances of severity towards catholics, even in that early period; and it is evident that their solemn rites were only performed by stealth, and at much hazard. Thus Sir Edward Waldgrave and his lady were sent to the Tower in 1561, for hearing mass and having a priest in their house. Many others about the same time were punished for the like offence.[162] Two bishops, one of whom, I regret to say, was Grindal, write to the council in 1562, concerning a priest apprehended in a lady's house, that neither he nor the servants would be sworn to answer to articles, saying they would not accuse themselves; and, after a wise remark on this, that "papistry is like to end in anabaptistry," proceed to hint, that "some think that if this priest might be put to some kind of torment, and so driven to confess what he knoweth, he might gain the queen's majesty a good mass of money by the masses that he hath said; but this we refer to your lordship's wisdom."[163] This commencement of persecution induced many catholics to fly beyond sea, and gave rise to those reunions of disaffected exiles, which never ceased to endanger the throne of Elizabeth. It cannot, as far as appears, be truly alleged that any greater provocation had as yet been given by the catholics, than that of pertinaciously continuing to believe and worship as their fathers had done before them. I request those who may hesitate about this, to pay some attention to the order of time, before they form their opinions. The master mover, that became afterwards so busy, had not yet put his wires into action. Every prudent man at Rome (and we shall not at least deny that there were such) condemned the precipitate and insolent behaviour of Paul IV. towards Elizabeth, as they did most other parts of his administration. Pius IV., the successor of that injudicious old man, aware of the inestimable importance of reconciliation, and suspecting probably that the queen's turn of thinking did not exclude all hope of it, despatched a nuncio to England, with an invitation to send ambassadors to the council at Trent, and with powers, as is said, to confirm the English liturgy, and to permit double communion; one of the few concessions which the more indulgent Romanists of that age were not very reluctant to make.[164] But Elizabeth had taken her line as to the court of Rome; the nuncio received a message at Brussels, that he must not enter the kingdom; and she was too wise to countenance the impartial fathers of Trent, whose labours had nearly drawn to a close, and whose decisions on the controverted points it had never been very difficult to foretell. I have not found that Pius IV., more moderate than most other pontiffs of the sixteenth century, took any measures hostile to the temporal government of this realm; but the deprived ecclesiastics were not unfairly anxious to keep alive the faith of their former hearers, and to prevent them from sliding into conformity, through indifference and disuse of their ancient rites.[165] The means taken were chiefly the same as had been adopted against themselves, the dispersion of small papers either in a serious or lively strain; but, the remarkable position in which the queen was placed rendering her death a most important contingency, the popish party made use of pretended conjurations and prophecies of that event, in order to unsettle the people's minds, and dispose them to anticipate another re-action.[166] Partly through these political circumstances, but far more from the hard usage they experienced for professing their religion, there seems to have been an increasing restlessness among the catholics about 1562, which was met with new rigour by the parliament of that year.[167] _Statute of 1562._--The act entitled, "for the assurance of the queen's royal power over all estates and subjects within her dominions," enacts, with an iniquitous and sanguinary retrospect, that all persons, who had ever taken holy orders or any degree in the universities, or had been admitted to the practice of the laws, or held any office in their execution, should be bound to take the oath of supremacy, when tendered to them by a bishop, or by commissioners appointed under the great seal. The penalty for the first refusal of this oath was that of a præmunire; but any person, who after the space of three months from the first tender should again refuse it when in like manner tendered, incurred the pains of high treason. The oath of supremacy was imposed by this statute on every member of the House of Commons, but could not be tendered to a peer; the queen declaring her full confidence in those hereditary counsellors. Several peers of great weight and dignity were still catholics.[168] _Speech of Lord Montague against it._--This harsh statute did not pass without opposition. Two speeches against it have been preserved; one by Lord Montagu in the House of Lords, the other by Mr. Atkinson in the Commons, breathing such generous abhorrence of persecution as some erroneously imagine to have been unknown to that age, because we rarely meet with it in theological writings. "This law," said Lord Montagu, "is not necessary; forasmuch as the catholics of this realm disturb not, nor hinder the public affairs of the realms, neither spiritual nor temporal. They dispute not, they preach not, they disobey not the queen; they cause no trouble nor tumults among the people; so that no man can say that thereby the realm doth receive any hurt or damage by them. They have brought into the realm no novelties in doctrine and religion. This being true and evident, as it is indeed, there is no necessity why any new law should be made against them. And where there is no sore nor grief, medicines are superfluous, and also hurtful and dangerous. I do entreat," he says afterwards, "whether it be just to make this penal statute to force the subjects of this realm to receive and believe the religion of protestants on pain of death. This I say to be a thing most unjust; for that it is repugnant to the natural liberty of men's understanding. For understanding may be persuaded, but not forced." And further on: "It is an easy thing to understand that a thing so unjust, and so contrary to all reason and liberty of man, cannot be put in execution but with great incommodity and difficulty. For what man is there so without courage and stomach, or void of all honour, that can consent or agree to receive an opinion and new religion by force and compulsion; or will swear that he thinketh the contrary to what he thinketh? To be still, or dissemble, may be borne and suffered for a time--to keep his reckoning with God alone; but to be compelled to lie and to swear, or else to die therefore, are things that no man ought to suffer and endure. And it is to be feared rather than to die they will seek how to defend themselves; whereby should ensue the contrary of what every good prince and well advised commonwealth ought to seek and pretend, that is, to keep their kingdom and government in peace."[169] _Statute of 1562 not fully enforced._--I am never very willing to admit as an apology for unjust or cruel enactments, that they are not designed to be generally executed; a pretext often insidious, always insecure, and tending to mask the approaches of arbitrary government. But it is certain that Elizabeth did not wish this act to be enforced in its full severity. And Archbishop Parker, by far the most prudent churchman of the time, judging some of the bishops too little moderate in their dealings with the papists, warned them privately to use great caution in tendering the oath of supremacy according to the act, and never to do so the second time, on which the penalty of treason might attach, without his previous approbation.[170] The temper of some of his colleagues was more narrow and vindictive. Several of the deprived prelates had been detained in a sort of honourable custody in the palaces of their successors.[171] Bonner, the most justly obnoxious of them all, was confined in the Marshalsea. Upon the occasion of this new statute, Horn, Bishop of Winchester, indignant at the impunity of such a man, proceeded to tender him the oath of supremacy, with an evident intention of driving him to high treason. Bonner, however, instead of evading this attack, intrepidly denied the other to be a lawful bishop; and, strange as it may seem, not only escaped all farther molestation, but had the pleasure of seeing his adversaries reduced to pass an act of parliament, declaring the present bishops to have been legally consecrated.[172] This statute, and especially its preamble, might lead a hasty reader to suspect that the celebrated story of an irregular consecration of the first protestant bishops at the Nag's-head tavern was not wholly undeserving of credit. That tale, however, has been satisfactorily refuted: the only irregularity which gave rise to this statute consisted in the use of an ordinal, which had not been legally re-established.[173] _Application of the emperor in behalf of the English catholics._--It was not long after the act imposing such heavy penalties on catholic priests for refusing the oath of supremacy, that the Emperor Ferdinand addressed two letters to Elizabeth, interceding for the adherents to that religion, both with respect to those new severities to which they might become liable by conscientiously declining that oath, and to the prohibition of the free exercise of their rites. He suggested that it might be reasonable to allow them the use of one church in every city. And he concluded with an expression, which might possibly be designed to intimate that his own conduct towards the protestants in his dominions would be influenced by her concurrence in his request.[174] Such considerations were not without great importance. The protestant religion was gaining ground in Austria, where a large proportion of the nobility as well as citizens had for some years earnestly claimed its public toleration. Ferdinand, prudent and averse from bigoted counsels, and for every reason solicitous to heal the wounds which religious differences had made in the empire, while he was endeavouring, not absolutely without hope of success, to obtain some concessions from the pope, had shown a disposition to grant further indulgences to his protestant subjects. His son, Maximilian, not only through his moderate temper, but some real inclination towards the new doctrines, bade fair to carry much farther the liberal policy of the reigning emperor.[175] It was consulting very little the general interests of protestantism, to disgust persons so capable and so well disposed to befriend it. But our queen, although free from the fanatical spirit of persecution which actuated part of her subjects, was too deeply imbued with arbitrary principles to endure any public deviation from the mode of worship she should prescribe. And it must perhaps be admitted that experience alone could fully demonstrate the safety of toleration, and show the fallacy of apprehensions that unprejudiced men might have entertained. In her answer to Ferdinand, the queen declares that she cannot grant churches to those who disagree from her religion, being against the laws of her parliament, and highly dangerous to the state of her kingdom; as it would sow various opinions in the nation to distract the minds of honest men, and would cherish parties and factions that might disturb the present tranquillity of the commonwealth. Yet enough had already occurred in France to lead observing men to suspect that severities and restrictions are by no means an infallible specific to prevent or subdue religious factions. Camden and many others have asserted that by systematic connivance the Roman catholics enjoyed a pretty free use of their religion for the first fourteen years of Elizabeth's reign. But this is not reconcilable to many passages in Strype's collections. We find abundance of persons harassed for recusancy, that is, for not attending the protestant church, and driven to insincere promises of conformity. Others were dragged before ecclesiastical commissions for harbouring priests, or for sending money to those who had fled beyond sea.[176] Students of the inns of court, where popery had a strong hold at this time, were examined in the star-chamber as to their religion, and on not giving satisfactory answers were committed to the Fleet.[177] The catholic party were not always scrupulous about the usual artifices of an oppressed people, meeting force by fraud, and concealing their heartfelt wishes under the mask of ready submission, or even of zealous attachment. A great majority both of clergy and laity yielded to the times; and of these temporising conformists it cannot be doubted that many lost by degrees all thought of returning to their ancient fold. But others, while they complied with exterior ceremonies, retained in their private devotions their accustomed mode of worship. It is an admitted fact, that the catholics generally attended the church, till it came to be reckoned a distinctive sign of their having renounced their own religion. They persuaded themselves (and the English priests, uninstructed and accustomed to a temporising conduct, did not discourage the notion) that the private observance of their own rites would excuse a formal obedience to the civil power.[178] The Romish scheme of worship, though it attaches more importance to ceremonial rites, has one remarkable difference from the protestant, that it is far less social; and consequently the prevention of its open exercise has far less tendency to weaken men's religious associations, so long as their individual intercourse with a priest, its essential requisite, can be preserved. Priests therefore travelled the country in various disguises, to keep alive a flame which the practice of outward conformity was calculated to extinguish. There was not a county throughout England, says a catholic historian, where several of Mary's clergy did not reside, and were commonly called the old priests. They served as chaplains in private families.[179] By stealth, at the dead of night, in private chambers, in the secret lurking-places of an ill-peopled country, with all the mystery that subdues the imagination, with all the mutual trust that invigorates constancy, these proscribed ecclesiastics celebrated their solemn rites, more impressive in such concealment than if surrounded by all their former splendour. The strong predilection indeed of mankind for mystery, which has probably led many to tamper in political conspiracies without much further motive, will suffice to preserve secret associations, even where their purposes are far less interesting than those of religion. Many of these itinerant priests assumed the character of protestant preachers; and it has been said, with some truth, though not probably without exaggeration, that, under the directions of their crafty court, they fomented the division then springing up, and mingled with the anabaptists and other sectaries, in the hope both of exciting dislike to the establishment, and of instilling their own tenets, slightly disguised, into the minds of unwary enthusiasts.[180] _Persecution of the catholics in the ensuing period._--It is my thorough conviction that the persecution, for it can obtain no better name,[181] carried on against the English catholics, however it might serve to delude the government by producing an apparent conformity, could not but excite a spirit of disloyalty in many adherents of that faith. Nor would it be safe to assert that a more conciliating policy would have altogether disarmed their hostility, much less laid at rest those busy hopes of the future, which the peculiar circumstances of Elizabeth's reign had a tendency to produce. This remarkable posture of affairs affected all her civil, and still more her ecclesiastical policy. Her own title to the crown depended absolutely on a parliamentary recognition. The act of 35 H. 8, c. 1 had settled the crown upon her, and thus far restrained the previous statute, 28 H. 8, c. 7, which had empowered her father to regulate the succession at his pleasure. Besides this legislative authority, his testament had bequeathed the kingdom to Elizabeth after her sister Mary; and the common consent of the nation had ratified her possession. But the Queen of Scots, niece of Henry by Margaret, his elder sister, had a prior right to the throne during Elizabeth's reign, in the eyes of such catholics as preferred an hereditary to a parliamentary title, and was reckoned by the far greater part of the nation its presumptive heir after her decease. There could indeed be no question of this, had the succession been left to its natural course. But Henry had exercised the power with which his parliament, in too servile a spirit, yet in the plenitude of its sovereign authority, had invested him, by settling the succession in remainder upon the house of Suffolk, descendants of his second sister Mary, to whom he postponed the elder line of Scotland. Mary left two daughters, Frances and Eleanor. The former became wife of Grey, Marquis of Dorset, created Duke of Suffolk by Edward; and had three daughters--Jane, whose fate is well known, Catherine, and Mary. Eleanor Brandon, by her union with the Earl of Cumberland, had a daughter, who married the Earl of Derby. At the beginning of Elizabeth's reign, or rather after the death of the Duchess of Suffolk, Lady Catherine Grey was by statute law the presumptive heiress of the crown; but according to the rules of hereditary descent, which the bulk of mankind do not readily permit an arbitrary and capricious enactment to disturb, Mary Queen of Scots, granddaughter of Margaret, was the indisputable representative of her royal progenitors, and the next in succession to Elizabeth. _Elizabeth's unwillingness to decide the succession, or to marry._--This reversion, indeed, after a youthful princess, might well appear rather an improbable contingency. It was to be expected that a fertile marriage would defeat all speculations about her inheritance; nor had Elizabeth been many weeks on the throne, before this began to occupy her subjects' minds.[182] Among several who were named, two very soon became the prominent candidates for her favour, the Archduke Charles, son of the Emperor Ferdinand, and Lord Robert Dudley, sometime after created Earl of Leicester; one recommended by his dignity and alliances, the other by her own evident partiality. She gave at the outset so little encouragement to the former proposal, that Leicester's ambition did not appear extravagant.[183] But her ablest counsellors who knew his vices, and her greatest peers who thought his nobility recent and ill acquired, deprecated so unworthy a connection.[184] Few will pretend to explore the labyrinths of Elizabeth's heart; yet we may almost conclude that her passion for this favourite kept up a struggle against her wisdom for the first seven or eight years of her reign. Meantime she still continued unmarried; and those expressions she had so early used, of her resolution to live and die a virgin, began to appear less like coy affectation than at first. Never had a sovereign's marriage been more desirable for a kingdom. Cecil, aware how important it was that the queen should marry, but dreading her union with Leicester, contrived, about the end of 1564, to renew the treaty with the Archduke Charles.[185] During this negotiation, which lasted from two to three years, she showed not a little of that evasive and dissembling coquetry which was to be more fully displayed on subsequent occasions.[186] Leicester deemed himself so much interested as to quarrel with those who manifested any zeal for the Austrian marriage; but his mistress gradually overcame her misplaced inclinations; and from the time when that connection was broken off, his prospects of becoming her husband seem rapidly to have vanished away. The pretext made for relinquishing this treaty with the archduke was Elizabeth's constant refusal to tolerate the exercise of his religion; a difficulty which, whether real or ostensible, recurred in all her subsequent negotiations of a similar nature.[187] In every parliament of Elizabeth the House of Commons was zealously attached to the protestant interest. This, as well as an apprehension of disturbance from a contested succession, led to those importunate solicitations that she would choose a husband, which she so artfully evaded. A determination so contrary to her apparent interest, and to the earnest desire of her people, may give some countenance to the surmises of the time, that she was restrained from marriage by a secret consciousness that it was unlikely to be fruitful.[188] Whether these conjectures were well founded, of which I know no evidence, or whether the risk of experiencing that ingratitude which the husbands of sovereign princesses have often displayed, and of which one glaring example was immediately before her eyes, outweighed in her judgment that of remaining single, or whether she might not even apprehend a more desperate combination of the catholic party at home and abroad, if the birth of any issue from her should shut out their hopes of Mary's succession, it is difficult for us to decide. Though the queen's marriage were the primary object of these addresses, as the most probable means of securing an undisputed heir to the crown, yet she might have satisfied the parliament in some degree by limiting the succession to one certain line. But it seems doubtful whether this would have answered the proposed end. If she had taken a firm resolution against matrimony, which, unless on the supposition already hinted, could hardly be reconciled with a sincere regard for her people's welfare, it might be less dangerous to leave the course of events to regulate her inheritance. Though all parties seem to have conspired in pressing her to some decisive settlement on this subject, it would not have been easy to content the two factions, who looked for a successor to very different quarters.[189] It is evident that any confirmation of the Suffolk title would have been regarded by the Queen of Scots and her numerous partisans as a flagrant injustice, to which they would not submit but by compulsion: and on the other hand, by re-establishing the hereditary line, Elizabeth would have lost her check on one whom she had reason to consider as a rival and competitor, and whose influence was already alarmingly extensive among her subjects. _Imprisonment of Lady Catherine Grey._--She had, however, in one of the first years of her reign, without any better motive than her own jealous and malignant humour, taken a step not only harsh and arbitrary, but very little consonant to policy, which had almost put it out of her power to defeat the Queen of Scots' succession. Lady Catherine Grey, who has been already mentioned as next in remainder of the house of Suffolk, proved with child by a private marriage, as they both alleged, with the Earl of Hertford. The queen, always envious of the happiness of lovers, and jealous of all who could entertain any hopes of the succession, threw them both into the Tower. By connivance of their keepers, the lady bore a second child during this imprisonment. Upon this Elizabeth caused an enquiry to be instituted before a commission of privy counsellors and civilians; wherein, the parties being unable to adduce proof of their marriage, Archbishop Parker pronounced that their cohabitation was illegal, and that they should be censured for fornication. He was to be pitied if the law obliged him to utter so harsh a sentence, or to be blamed if it did not. Even had the marriage never been solemnised, it was impossible to doubt the existence of a contract, which both were still desirous to perform. But there is reason to believe that there had been an actual marriage, though so hasty and clandestine that they had not taken precautions to secure evidence of it. The injured lady sunk under this hardship and indignity;[190] but the legitimacy of her children was acknowledged by general consent, and, in a distant age, by a legislative declaration. These proceedings excited much dissatisfaction; generous minds revolted from their severity, and many lamented to see the reformed branch of the royal stock thus bruised by the queen's unkind and impolitic jealousy.[191] Hales, clerk of the hanaper, a zealous protestant, having written in favour of Lady Catherine's marriage, and of her title to the succession, was sent to the Tower.[192] The lord keeper Bacon himself, a known friend to the house of Suffolk, being suspected of having prompted Hales to write this treatise, lost much of his mistress's favour. Even Cecil, though he had taken a share in prosecuting Lady Catherine, perhaps in some degree from an apprehension that the queen might remember he had once joined in proclaiming her sister Jane, did not always escape the same suspicion;[193] and it is probable that he felt the imprudence of entirely discountenancing a party from which the queen and religion had nothing to dread. There is reason to believe that the house of Suffolk was favoured in parliament; the address of the Commons in 1563, imploring the queen to settle the succession, contains several indications of a spirit unfriendly to the Scottish line;[194] and a speech is extant, said to have been made as late as 1571, expressly vindicating the rival pretension.[195] If indeed we consider with attention the statute of 13 Eliz. c. 1, which renders it treasonable to deny that the sovereigns of this kingdom, with consent of parliament, might alter the line of succession, it will appear little short of a confirmation of that title, which the descendants of Mary Brandon derived from a parliamentary settlement. But the doubtful birth of Lord Beauchamp and his brother, with an ignoble marriage, which Frances, the younger sister of Lady Catherine Grey, had thought it prudent to contract, deprived this party of all political consequence much sooner, as I conceive, than the wisest of Elizabeth's advisers could have desired; and gave rise to various other pretensions, which failed not to occupy speculative or intriguing tempers throughout this reign. _Mary, Queen of Scotland._--We may well avoid the tedious and intricate paths of Scottish history, where each fact must be sustained by a controversial discussion. Every one will recollect, that Mary Stuart's retention of the arms and style of England gave the first, and, as it proved, inexpiable provocation to Elizabeth. It is indeed true, that she was queen consort of France, a state lately at war with England, and that if the sovereigns of the latter country, even in peace, would persist in claiming the French throne, they could hardly complain of this retaliation. But, although it might be difficult to find a diplomatic answer to this, yet every one was sensible of an important difference between a title retained through vanity, and expressive of pretensions long since abandoned, from one that several foreign powers were prepared to recognise, and a great part of the nation might perhaps only want opportunity to support.[196] If, however, after the death of Francis II. had set the Queen of Scots free from all adverse connections, she had with more readiness and apparent sincerity renounced a pretension which could not be made compatible with Elizabeth's friendship, she might perhaps have escaped some of the consequences of that powerful neighbour's jealousy. But, whether it were that female weakness restrained her from unequivocally abandoning claims which she deemed well founded, and which future events might enable her to realise even in Elizabeth's lifetime, or whether she fancied that to drop the arms of England from her scutcheon would look like a dereliction of her right of succession, no satisfaction was fairly given on this point to the English court. Elizabeth took a far more effective revenge, by intriguing with all the malecontents of Scotland. But while she was endeavouring to render Mary's throne uncomfortable and insecure, she did not employ that influence against her in England, which lay more fairly in her power. She certainly was not unfavourable to the Queen of Scots' succession, however she might decline compliance with importunate and injudicious solicitations to declare it. She threw both Hales and one Thornton into prison for writing against that title. And when Mary's secretary, Lethington, urged that Henry's testament, which alone stood in their way, should be examined, alleging that it had not been signed by the king, she paid no attention to this imprudent request.[197] The circumstances wherein Mary found herself placed on her arrival in Scotland were sufficiently embarrassing to divert her attention from any regular scheme against Elizabeth, though she may sometimes have indulged visionary hopes; nor it is probable that with the most circumspect management she could so far have mitigated the rancour of some or checked the ambition of others, as to find leisure for hostile intrigues. But her imprudent marriage with Darnley, and the far greater errors of her subsequent behaviour, by lowering both her resources and reputation as far as possible, seemed to be pledges of perfect security from that quarter. Yet it was precisely when Mary was become most feeble and helpless, that Elizabeth's apprehensions grew most serious and well founded. At the time when Mary, escaped from captivity, threw herself on the protection of a related, though rival queen, three courses lay open to Elizabeth, and were discussed in her councils. To restore her by force of arms, or rather by a mediation which would certainly have been effectual, to the throne which she had compulsorily abdicated, was the most generous, and would probably have turned out the most judicious proceeding. Reigning thus with tarnished honour and diminished power, she must have continually depended on the support of England, and become little better than a vassal of its sovereign. Still it might be objected by many, that the queen's honour was concerned not to maintain too decidedly the cause of one accused by common fame, and even by evidence that had already been made public, of adultery and the assassination of her husband. To have permitted her retreat into France would have shown an impartial neutrality; and probably that court was too much occupied at home to have afforded her any material assistance. Yet this appeared rather dangerous; and policy was supposed, as frequently happens, to indicate a measure absolutely repugnant to justice, that of detaining her in perpetual custody.[198] Whether this policy had no other fault than its want of justice, may reasonably be called in question. _Combination in favour of Mary._--The queen's determination neither to marry nor limit the succession had inevitably turned every one's thoughts towards the contingency of her death. She was young indeed; but had been dangerously ill, once in 1562,[199] and again in 1568. Of all possible competitors for the throne, Mary was incomparably the most powerful, both among the nobility and the people. Besides the undivided attachment of all who retained any longings for the ancient religion, and many such were to be found at Elizabeth's court and chapel, she had the stronghold of hereditary right, and the general sentiment that revolts from acknowledging the omnipotency of a servile parliament. Cecil, whom no one could suspect of partiality towards her, admits in a remarkable minute on the state of the kingdom, in 1569, that "the Queen of Scots' strength standeth by the universal opinion of the world for the justice of her title, as coming of the ancient line."[200] This was no doubt in some degree counteracted by a sense of the danger which her accession would occasion to the protestant church, and which, far more than its parliamentary title, kept up a sort of party for the house of Suffolk. The crimes imputed to her did not immediately gain credit among the people; and some of higher rank were too experienced politicians to turn aside for such considerations. She had always preserved her connections among the English nobility, of whom many were catholics, and others adverse to Cecil, by whose counsels the queen had been principally directed in all her conduct with regard to Scotland and its sovereign.[201] After the unfinished process of enquiry to which Mary submitted at York and Hampton Court, when the charge of participation in Darnley's murder had been substantiated by evidence at least that she did not disprove, and the whole course of which proceedings created a very unfavourable impression both in England and on the continent, no time was to be lost by those who considered her as the object of their dearest hopes. She was in the kingdom; she might, by a bold rescue, be placed at their head; every hour's delay increased the danger of her being delivered up to the rebel Scots; and doubtless some eager protestants had already begun to demand her exclusion by an absolute decision of the legislature. Elizabeth must have laid her account, if not with the disaffection of the catholic party, yet at least with their attachment to the Queen of Scots. But the extensive combination that appeared, in 1569, to bring about by force the Duke of Norfolk's marriage with that princess, might well startle her cabinet. In this combination Westmoreland and Northumberland, avowed catholics, Pembroke and Arundel, suspected ones, were mingled with Sussex and even Leicester, unquestioned protestants. The Duke of Norfolk himself, greater and richer than any English subject, had gone such lengths in this conspiracy that his life became the just forfeit of his guilt and folly. It is almost impossible to pity this unhappy man, who lured by the most criminal ambition, after proclaiming the Queen of Scots a notorious adulteress and murderer, would have compassed a union with her at the hazard of his sovereign's crown, of the tranquillity and even independence of his country, and of the reformed religion.[202] There is abundant proof of his intrigues with the Duke of Alva, who had engaged to invade the kingdom. His trial was not indeed conducted in a manner that we can approve (such was the nature of state proceedings in that age), nor can it, I think, be denied that it formed a precedent of constructive treason not easily reconcilable with the statute; but much evidence is extant that his prosecutors did not adduce; and no one fell by a sentence more amply merited, or the execution of which was more indispensable.[203] _Bull of Pius V._--Norfolk was the dupe throughout all this intrigue of more artful men; first of Murray and Lethington, who had filled his mind with ambitious hopes, and afterwards of Italian agents employed by Pius V. to procure a combination of the catholic party. Collateral to Norfolk's conspiracy, but doubtless connected with it, was that of the northern Earls of Northumberland and Westmoreland, long prepared, and perfectly foreseen by the government, of which the ostensible and manifest aim was the re-establishment of popery.[204] Pius V., who took a far more active part than his predecessor in English affairs, and had secretly instigated this insurrection, now published his celebrated bull, excommunicating and deposing Elizabeth, in order to second the efforts of her rebellious subjects.[205] This is, perhaps, with the exception of that issued by Sixtus V. against Mary IV. of France, the latest blast of that trumpet, which had thrilled the hearts of monarchs. Yet there was nothing in the sound that bespoke declining vigour; even the illegitimacy of Elizabeth's birth is scarcely alluded to; and the pope seems to have chosen rather to tread the path of his predecessors, and absolve her subjects from their allegiance, as the just and necessary punishment of her heresy. Since nothing so much strengthens any government as an unsuccessful endeavour to subvert it, it may be thought that the complete failure of the rebellion under the Earls of Northumberland and Westmoreland, with the detection and punishment of the Duke of Norfolk, rendered Elizabeth's throne more secure. But those events revealed the number of her enemies, or at least of those in whom no confidence could be reposed. The rebellion, though provided against by the ministry, and headed by two peers of great family but no personal weight, had not only assumed for a time a most formidable aspect in the north, but caused many to waver in other parts of the kingdom.[206] Even in Norfolk, an eminently protestant county, there was a slight insurrection in 1570, out of attachment to the duke.[207] If her greatest subject could thus be led astray from his faith and loyalty, if others not less near to her councils could unite with him in measures so contrary to her wishes and interests, on whom was she firmly to rely? Who, especially, could be trusted, were she to be snatched away from the world, for the maintenance of the protestant establishment under a yet unknown successor? This was the manifest and principal danger that her counsellors had to dread. Her own great reputation, and the respectful attachment of her people, might give reason to hope that no machinations would be successful against her crown; but let us reflect in what situation the kingdom would have been left by her death in a sudden illness, such as she had more than once experienced in earlier years, and again in 1571. "You must think," Lord Burleigh writes to Walsingham, on that occasion, "such a matter would drive me to the end of my wits." And Sir Thomas Smith expresses his fears in equally strong language.[208] Such statesmen do not entertain apprehensions lightly. Whom, in truth, could her privy council, on such an event, have resolved to proclaim? The house of Suffolk, had its right been more generally recognised than it was (Lady Catherine being now dead), presented no undoubted heir. The young King of Scotland, an alien and an infant, could only have reigned through a regency; and it might have been difficult to have selected from the English nobility a fit person to undertake that office, or at least one in whose elevation the rest would have acquiesced. It appears most probable that the numerous and powerful faction who had promoted Norfolk's union with Mary would have contrived again to remove her from her prison to the throne. Of such a revolution the disgrace of Cecil and of Elizabeth's wisest ministers must have been the immediate consequence; and it is probable that the restoration of the catholic worship would have ensued. These apprehensions prompted Cecil, Walsingham, and Smith to press the queen's marriage with the Duke of Anjou far more earnestly than would otherwise have appeared consistent with her interests. A union with any member of that perfidious court was repugnant to genuine protestant sentiments. But the queen's absolute want of foreign alliances, and the secret hostility both of France and Spain, impressed Cecil with that deep sense of the perils of the time which his private letters so strongly bespeak. A treaty was believed to have been concluded in 1567, to which the two last-mentioned powers, with the Emperor Maximilian and some other catholic princes, were parties, for the extirpation of the protestant religion.[209] No alliance that the court of Charles IX. could have formed with Elizabeth was likely to have diverted it from pursuing this object; and it may have been fortunate that her own insincerity saved her from being the dupe of those who practised it so well. Walsingham himself, sagacious as he was, fell into the snares of that den of treachery, giving credit to the young king's assurances almost on the very eve of St. Bartholomew.[210] _Statutes for the queen's security._--The bull of Pius V., far more injurious in its consequences to those it was designed to serve than to Elizabeth, forms a leading epoch in the history of our English catholics. It rested upon a principle never universally acknowledged, and regarded with much jealousy by temporal governments, yet maintained in all countries by many whose zeal and ability rendered them formidable--the right vested in the supreme pontiff to depose kings for heinous crimes against the church. One Felton affixed this bull to the gates of the Bishop of London's palace, and suffered death for the offence. So audacious a manifestation of disloyalty was imputed with little justice to the catholics at large, but might more reasonably lie at the door of those active instruments of Rome, the English refugee priests and jesuits dispersed over Flanders and lately established at Douay, who were continually passing into the kingdom, not only to keep alive the precarious faith of the laity, but, as was generally surmised, to excite them against their sovereign.[211] This produced the act of 13 Eliz. c. 2; which, after reciting these mischiefs, enacts that all persons publishing any bull from Rome, or absolving and reconciling any one to the Romish church, or being so reconciled, should incur the penalties of high treason; and such as brought into the realm any crosses, pictures, or superstitious things consecrated by the pope or under his authority, should be liable to a premunire. Those who should conceal or connive at the offenders were to be held guilty of misprision of treason. This statute exposed the catholic priesthood, and in great measure the laity, to the continual risk of martyrdom; for so many had fallen away from their faith through a pliant spirit of conformity with the times, that the regular discipline would exact their absolution and reconciliation before they could be reinstated in the church's communion. Another act of the same session, manifestly levelled against the partisans of Mary, and even against herself, makes it high treason to affirm that the queen ought not to enjoy the crown, but some other person; or to publish that she is a heretic, schismatic, tyrant, infidel, or usurper of the crown; or to claim right to the crown, or to usurp the same during the queen's life; or to affirm that the laws and statutes do not bind the right of the crown, and the descent, limitation, inheritance, or governance thereof. And whosoever should during the queen's life, by any book or work written or printed, expressly affirm, before the same had been established by parliament, that any one particular person was or ought to be heir and successor to the queen, except the same be the natural issue of her body, or should print or utter any such book or writing, was for the first offence to be imprisoned a year, and to forfeit half his goods; and for the second to incur the penalties of a premunire.[212] It is impossible to misunderstand the chief aim of this statute. But the House of Commons, in which the zealous protestants, or, as they were now rather denominated, puritans, had a predominant influence, were not content with these demonstrations against the unfortunate captive. Fear, as often happens, excited a sanguinary spirit amongst them; they addressed the queen upon what they called the great cause, that is, the business of the Queen of Scots, presenting by their committee reasons gathered out of the civil law to prove that "it standeth not only with justice, but also with the queen's majesty's honour and safety, to proceed criminally against the pretended Scottish queen."[213] Elizabeth, who could not really dislike these symptoms of hatred towards her rival, took the opportunity of simulating more humanity than the Commons; and when they sent a bill to the upper house attainting Mary of treason, checked its course by proroguing the parliament. Her backwardness to concur in any measures for securing the kingdom, as far as in her lay, from those calamities which her decease might occasion, could not but displease Lord Burleigh. "All that we laboured for," he writes to Walsingham in 1572, "and had with full consent brought to fashion, I mean a law to make the Scottish queen unable and unworthy of succession to the crown, was by her majesty neither assented to nor rejected, but deferred." Some of those about her, he hints, made herself her own enemy by persuading her not to countenance these proceedings in parliament.[214] I do not think it admits of much question that, at this juncture, the civil and religious institutions of England would have been rendered more secure by Mary's exclusion from a throne, which indeed, after all that had occurred, she could not be endured to fill without national dishonour. But the violent measures suggested against her life were hardly, under all the circumstances of her case, to be reconciled with justice; even admitting her privity to the northern rebellion and to the projected invasion by the Duke of Alva. These however were not approved merely by an eager party in the Commons: Archbishop Parker does not scruple to write about her to Cecil--"If that only [one] desperate person were taken away, as by justice soon it might be, the queen's majesty's good subjects would be in better hope, and the papists' daily expectation vanquished."[215] And Walsingham, during his embassy at Paris, desires that "the queen should see how much they (the papists) built upon the possibility of that dangerous woman's coming to the crown of England, whose life was a step to her majesty's death;" adding that "she was bound for her own safety and that of her subjects, to add to God's providence her own policy, so far as might stand with justice."[216] _Catholics more rigorously treated._--We cannot wonder to read that these new statutes increased the dissatisfaction of the Roman catholics, who perceived a systematic determination to extirpate their religion. Governments ought always to remember that the intimidation of a few disaffected persons is dearly bought by alienating any large portion of the community.[217] Many retired to foreign countries, and receiving for their maintenance pensions from the court of Spain, became unhappy instruments of its ambitious enterprises. Those who remained at home could hardly think their oppression much mitigated by the precarious indulgences which Elizabeth's caprice, or rather the fluctuation of different parties in her councils, sometimes extended to them. The queen indeed, so far as we can penetrate her dissimulation, seems to have been really averse to extreme rigour against her catholic subjects: and her greatest minister, as we shall more fully see afterwards, was at this time in the same sentiments. But such of her advisers as leaned towards the puritan faction, and too many of the Anglican clergy, whether puritan or not, thought no measure of charity or compassion should be extended to them. With the divines they were idolaters; with the council they were a dangerous and disaffected party; with the judges they were refractory transgressors of statutes; on every side they were obnoxious and oppressed. A few aged men having been set at liberty, Sampson, the famous puritan, himself a sufferer for conscience sake, wrote a letter of remonstrance to Lord Burleigh. He urged in this that they should be compelled to hear sermons, though he would not at first oblige them to communicate.[218] A bill having been introduced in the session of 1571 imposing a penalty for not receiving the communion, it was objected that consciences ought not to be forced. But Mr. Strickland entirely denied this principle, and quoted authorities against it.[219] Even Parker, by no means tainted with puritan bigotry, and who had been reckoned moderate in his proceedings towards catholics, complained of what he called "a Machiavel government;" that is, of the queen's lenity in not absolutely rooting them out.[220] This indulgence, however, shown by Elizabeth, the topic of reproach in those times, and sometimes of boast in our own, never extended to any positive toleration, nor even to any general connivance at the Romish worship in its most private exercise. She published a declaration in 1570, that she did not intend to sift men's consciences, provided they observed her laws by coming to church; which, as she well knew, the greater part deemed inconsistent with their integrity.[221] Nor did the government always abstain from an inquisition into men's private thoughts. The inns of court were more than once purified of popery by examining their members on articles of faith. Gentlemen of good families in the country were harassed in the same manner.[222] One Sir Richard Shelley, who had long acted as a sort of spy for Cecil on the continent, and given much useful information, requested only leave to enjoy his religion without hindrance; but the queen did not accede to this without much reluctance and delay.[223] She had indeed assigned no other ostensible pretext for breaking off her own treaty of marriage with the Archduke Charles, and subsequently with the Dukes of Anjou and Alençon, than her determination not to suffer the mass to be celebrated even in her husband's private chapel. It is worthy to be repeatedly inculcated on the reader, since so false a colour has been often employed to disguise the ecclesiastical tyranny of this reign, that the most clandestine exercise of the Romish worship was severely punished. Thus we read in the life of Whitgift, that on information given that some ladies and others heard mass in the house of one Edwards by night, in the county of Denbigh, he being then Bishop of Worcester and Vice-President of Wales, was directed to make inquiry into the facts; and finally was instructed to commit Edwards to close prison, and as for another person implicated, named Morice, "if he remained obstinate, he might cause some kind of torture to be used upon him, and the like order they prayed him to use with the others."[224] But this is one of many instances, the events of every day, forgotten on the morrow, and of which no general historian takes account. Nothing but the minute and patient diligence of such a compiler as Strype, who thinks no fact below his regard, could have preserved them from oblivion.[225] It will not surprise those who have observed the effect of all persecution for matters of opinion upon the human mind, that during this period the Romish party continued such in numbers and in zeal as to give the most lively alarm to Elizabeth's administration. One cause of this was beyond doubt the connivance of justices of the peace, a great many of whom were secretly attached to the same interest, though it was not easy to exclude them from the commission, on account of their wealth and respectability.[226] The facility with which catholic rites can be performed in secret, as before observed, was a still more important circumstance. Nor did the voluntary exiles established in Flanders remit their diligence in filling the kingdom with emissaries. The object of many at least among them, it cannot for a moment be doubted, from the æra of the bull of Pius V., if not earlier, was nothing less than to subvert the queen's throne. They were closely united with the court of Spain, which had passed from the character of an ally and pretended friend, to that of a cold and jealous neighbour, and at length of an implacable adversary. Though no war had been declared between Elizabeth and Philip, neither party had scrupled to enter into leagues with the disaffected subjects of the other. Such sworn vassals of Rome and Spain as an Allen or a Persons, were just objects of the English government's distrust: it is the extension of that jealousy to the peaceful and loyal which we stigmatise as oppressive, and even as impolitic.[227] _Fresh laws against the catholic worship._--In concert with the directing powers of the Vatican and Escurial, the refugees redoubled their exertions about the year 1580. Mary was now wearing out her years in hopeless captivity; her son, though they did not lose hope of him, had received a strictly protestant education; while a new generation had grown up in England, rather inclined to diverge more widely from the ancient religion than to suffer its restoration. Such were they who formed the House of Commons that met in 1581, discontented with the severities used against the puritans, but ready to go beyond any measures that the court might propose to subdue and extirpate popery. Here an act was passed, which, after repeating the former provisions that had made it high treason to reconcile any of her majesty's subjects, or to be reconciled to the church of Rome, imposes a penalty of £20 a month on all persons absenting themselves from church, unless they shall hear the English service at home: such as could not pay the same within three months after judgment were to be imprisoned until they should conform. The queen, by a subsequent act, had the power of seizing two-thirds of the party's land, and all his goods, for default of payment.[228] These grievous penalties on recusancy, as the wilful absence of catholics from church came now to be denominated, were doubtless founded on the extreme difficulty of proving an actual celebration of their own rites. But they established a persecution which fell not at all short in principle of that for which the inquisition had become so odious. Nor were the statutes merely designed for terror's sake, to keep a check over the disaffected, as some would pretend. They were executed in the most sweeping and indiscriminating manner, unless perhaps a few families of high rank might enjoy a connivance.[229] _Execution of Campian and others._--It had certainly been the desire of Elizabeth to abstain from capital punishments on the score of religion. The first instance of a priest suffering death by her statutes was in 1577, when one Mayne was hanged at Launceston, without any charge against him except his religion, and a gentleman who had harboured him was sentenced to imprisonment for life.[230] In the next year, if we may trust the zealous catholic writers, Thomas Sherwood, a boy of fourteen years, was executed for refusing to deny the temporal power of the pope, when urged by his judges.[231] But in 1581 several seminary priests from Flanders having been arrested, whose projects were supposed (perhaps not wholly without foundation) to be very inconsistent with their allegiance, it was unhappily deemed necessary to hold out some more conspicuous examples of rigour. Of those brought to trial the most eminent was Campian, formerly a protestant, but long known as the boast of Douay for his learning and virtues.[232] This man, so justly respected, was put to the rack, and revealed through torture the names of some catholic gentlemen with whom he had conversed.[233] He appears to have been indicted along with several other priests, not on the recent statutes, but on that of 25 Edw. III. for compassing and imagining the queen's death. Nothing that I have read affords the slightest proof of Campian's concern in treasonable practices, though his connections, and profession as a jesuit, render it by no means unlikely. If we may confide in the published trial, the prosecution was as unfairly conducted, and supported by as slender evidence, as any perhaps which can be found in our books.[234] But as this account, wherein Campian's language is full of a dignified eloquence, rather seems to have been compiled by a partial hand, its faithfulness may not be above suspicion. For the same reason I hesitate to admit his alleged declarations at the place of execution, where, as well as at his trial, he is represented to have expressly acknowledged Elizabeth, and to have prayed for her as his queen _de facto_ and _de jure_. For this was one of the questions propounded to him before his trial, which he refused to answer, in such a manner as betrayed his way of thinking. Most of those interrogated at the same time, on being pressed whether the queen was their lawful sovereign whom they were bound to obey, notwithstanding any sentence of deprivation that the pope might pronounce, endeavoured, like Campian, to evade the snare. A few, who unequivocally disclaimed the deposing power of the Roman see, were pardoned.[235] It is more honourable to Campian's memory that we should reject these pretended declarations, than imagine him to have made them at the expense of his consistency and integrity. For the pope's right to deprive kings of their crowns was in that age the common creed of the jesuits, to whose order Campian belonged; and the continent was full of writings published by the English exiles, by Sanders, Bristow, Persons, and Allen, against Elizabeth's unlawful usurpation of the throne. But many availed themselves of what was called an explanation of the bull of Pius V., given by his successor Gregory XIII.; namely, that the bull should be considered as always in force against Elizabeth and the heretics, but should only be binding on catholics when due execution of it could be had.[236] This was designed to satisfy the consciences of some papists in submitting to her government, and taking the oath of allegiance. But in thus granting a permission to dissemble, in hope of better opportunity for revolt, this interpretation was not likely to tranquillise her council, or conciliate them towards the Romish party. The distinction, however, between a king by possession and one by right, was neither heard for the first, nor for the last time, in the reign of Elizabeth. It is the lot of every government that is not founded on the popular opinion of legitimacy, to receive only a precarious allegiance. Subject to this reservation, which was pretty generally known, it does not appear that the priests or other Roman catholics, examined at various times during this reign, are more chargeable with insincerity or dissimulation than accused persons generally are. The public executions, numerous as they were, scarcely form the most odious part of this persecution. The common law of England has always abhorred the accursed mysteries of a prison-house; and neither admits of torture to extort confession, nor of any penal infliction not warranted by a judicial sentence. But this law, though still sacred in the courts of justice, was set aside by the privy council under the Tudor line. The rack seldom stood idle in the Tower for all the latter part of Elizabeth's reign.[237] To those who remember the annals of their country, that dark and gloomy pile affords associations not quite so numerous and recent as the Bastile, yet enough to excite our hatred and horror. But standing as it does in such striking contrast to the fresh and flourishing constructions of modern wealth, the proofs and the rewards of civil and religious liberty, it seems like a captive tyrant, reserved to grace the triumph of a victorious republic, and should teach us to reflect in thankfulness, how highly we have been elevated in virtue and happiness above our forefathers. Such excessive severities under the pretext of treason, but sustained by very little evidence of any other offence than the exercise of the catholic ministry, excited indignation throughout a great part of Europe. The queen was held forth in pamphlets, dispersed everywhere from Rome and Douay, not only as a usurper and heretic, but a tyrant more ferocious than any heathen persecutor, for inadequate parallels to whom they ransacked all former history.[238] These exaggerations, coming from the very precincts of the inquisition, required the unblushing forehead of bigotry; but the charge of cruelty stood on too many facts to be passed over, and it was thought expedient to repel it by two remarkable pamphlets, both ascribed to the pen of Lord Burleigh. _Defence of the queen, by Burleigh._--One of these, entitled "The Execution of Justice in England for Maintenance of public and private Peace," appears to have been published in 1583. It contains an elaborate justification of the late prosecutions for treason, as no way connected with religious tenets, but grounded on the ancient laws for protection of the queen's person and government from conspiracy. It is alleged that a vast number of catholics, whether of the laity or priesthood, among whom the deprived bishops are particularly enumerated, had lived unmolested on the score of their faith, because they paid due temporal allegiance to their sovereign. Nor were any indicted for treason, but such as obstinately maintained the pope's bull depriving the queen of her crown. And even of these offenders, as many as after condemnation would renounce their traitorous principles, had been permitted to live; such was her majesty's unwillingness, it is asserted, to have any blood spilled without this just and urgent cause proceeding from themselves. But that any matter of opinion, not proved to have ripened into an overt act, and extorted only, or rather conjectured, through a compulsive inquiry, could sustain in law or justice a conviction for high treason, is what the author of this pamphlet has not rendered manifest.[239] A second and much shorter paper bears for title, "A Declaration of the favourable dealing of her Majesty's Commissioners, appointed for the examination of certain traitors, and of tortures unjustly reported to be done upon them for matter of religion." Its scope was to palliate the imputation of excessive cruelty with which Europe was then resounding. Those who revere the memory of Lord Burleigh must blush for this pitiful apology. "It is affirmed for truth," he says, "that the forms of torture in their severity or rigour of execution have not been such and in such manner performed, as the slanderers and seditious libellers have published. And that even the principal offender, Campian himself, who was sent and came from Rome, and continued here in sundry corners of the realm, having secretly wandered in the greater part of the shires of England in a disguised suit, to be intent to make special preparation of treasons, was never so racked but that he was perfectly able to walk and to write, and did presently write and subscribe all his confessions. The queen's servants, the warders, whose office and act it is to handle the rack, were ever by those that attended the examinations specially charged to use it in so charitable a manner as such a thing might be. None of those who were at any time put to the rack," he proceeds to assert, "were asked, during their torture, any question as to points of doctrine; but merely concerning their plots and conspiracies, and the persons with whom they had had dealings, and what was their own opinion as to the pope's right to deprive the queen of her crown. Nor was any one so racked until it was rendered evidently probable by former detections or confessions that he was guilty; nor was the torture ever employed to wring out confessions at random; nor unless the party had first refused to declare the truth at the queen's commandment." Such miserable excuses serve only to mingle contempt with our detestation.[240] But it is due to Elizabeth to observe, that she ordered the torture to be disused; and upon a subsequent occasion, the quartering of some concerned in Babington's conspiracy having been executed with unusual cruelty, gave directions that the rest should not be taken down from the gallows until they were dead.[241] I should be reluctant, but for the consent of several authorities, to ascribe this little tract to Lord Burleigh, for his honour's sake. But we may quote with more satisfaction a memorial addressed by him to the queen about the same year, 1583, full not only of sagacious, but just and tolerant advice. "Considering," he says, "that the urging of the oath of supremacy must needs, in some degree, beget despair, since in the taking of it, he [the papist] must either think he doth an unlawful act, as without the special grace of God he cannot think otherwise, or else, by refusing it, must become a traitor, which before some hurt done seemeth hard; I humbly submit this to your excellent consideration, whether, with as much security of your majesty's person and state, and more satisfaction for them, it were not better to leave the oath to this sense, that whosoever would not bear arms against all foreign princes, and namely the pope, that should any way invade your majesty's dominions, he should be a traitor. For hereof this commodity will ensue, that those papists, as I think most papists would, that should take this oath, would be divided from the great mutual confidence which is now between the pope and them, by reason of their afflictions for him; and such priests as would refuse that oath then, no tongue could say for shame that they suffer for religion, if they did suffer. "But here it may be objected, they would dissemble and equivocate with this oath, and that the pope would dispense with them in that case. Even so may they with the present oath both dissemble and equivocate, and also have the pope's dispensation for the present oath, as well as for the other. But this is certain, that whomsoever the conscience, or fear of breaking an oath, both bind, him would that oath bind. And that they make conscience of an oath, the trouble, losses, and disgraces that they suffer for refusing the same do sufficiently testify; and you know that the perjury of either oath is equal." These sentiments are not such as bigoted theologians were then, or have been since, accustomed to entertain. "I account," he says afterwards, "that putting to death does no ways lessen them; since we find by experience, that it worketh no such effect, but, like hydra's heads, upon cutting off one, seven grow up, persecution being accounted as the badge of the church: and therefore they should never have the honour to take any pretence of martyrdom in England, where the fullness of blood and greatness of heart is such that they will even for shameful things go bravely for death; much more, when they think themselves to climb heaven, and this vice of obstinacy seems to the common people a divine constancy; so that for my part I wish no lessening of their number, but by preaching and by education of the younger under schoolmasters." And hence the means he recommends for keeping down popery, after the encouragement of diligent preachers and schoolmasters, are, "the taking order that, from the highest counsellor to the lowest constable, none shall have any charge or office but such as will really pray and communicate in their congregation according to the doctrine received generally into this realm;" and next, the protection of tenants against their popish landlords, "that they be not put out of their living, for embracing the established religion."--"This," he says, "would greatly bind the commons' hearts unto you, in whom indeed consisteth the power and strength of your realm; and it will make them less, or nothing at all, depend on their landlords. And, although there may hereby grow some wrong, which the tenants upon that confidence may offer to their landlords, yet those wrongs are very easily, even with one wink of your majesty's, redressed; and are nothing comparable to the danger of having many thousands depending on the adverse party."[242] _Increased severity of the government._--The strictness used with recusants, which much increased from 1579 or 1580, had the usual consequence of persecution, that of multiplying hypocrites. For, in fact, if men will once bring themselves to comply, to take all oaths, to practise all conformity, to oppose simulation and dissimulation to arbitrary inquiries, it is hardly possible that any government should not be baffled. Fraud becomes an over-match for power. The real danger meanwhile, the internal disaffection, remains as before, or is aggravated. The laws enacted against popery were precisely calculated to produce this result. Many indeed, especially of the female sex, whose religion, lying commonly more in sentiment than reason, is less ductile to the sophisms of worldly wisdom, stood out and endured the penalties. But the oath of supremacy was not refused; the worship of the church was frequented by multitudes who secretly repined for a change; and the council, whose fear of open enmity had prompted their first severities, were led on by the fear of dissembled resentment to devise yet further measures of the same kind. Hence, in 1584, a law was enacted, enjoining all jesuits, seminary priests, and other priests, whether ordained within or without the kingdom, to depart from it within forty days, on pain of being adjudged traitors. The penalty of fine and imprisonment at the queen's pleasure was inflicted on such as, knowing any priest to be within the realm, should not discover it to a magistrate. This seemed to fill up the measure of prosecution, and to render the longer preservation of this obnoxious religion absolutely impracticable. Some of its adherents presented a petition against this bill, praying that they might not be suspected of disloyalty on account of refraining from the public worship, which they did to avoid sin; and that their priests might not be banished from the kingdom.[243] And they all very justly complained of this determined oppression. The queen, without any fault of theirs, they alleged, had been alienated by the artifices of Leicester and Walsingham. Snares were laid to involve them unawares in the guilt of treason; their steps were watched by spies; and it was become intolerable to continue in England. Camden indeed asserts that counterfeit letters were privately sent in the name of the Queen of Scots or of the exiles, and left in papists' houses.[244] A general inquisition seems to have been made about this time; but whether it was founded on sufficient grounds of previous suspicion, we cannot absolutely determine. The Earl of Northumberland, brother of him who had been executed for the rebellion of 1570, and the Earl of Arundel, son of the unfortunate Duke of Norfolk, were committed to the Tower, where the former put an end to his own life (for we cannot charge the government with an unproved murder); and the second, after being condemned for a traitorous correspondence with the queen's enemies, died in that custody. But whether or no some conspiracies (I mean more active than usual, for there was one perpetual conspiracy of Rome and Spain during most of the queen's reign), had preceded these severe and unfair methods by which her ministry counteracted them, it was not long before schemes, more formidable than ever, were put in action against her life. As the whole body of catholics was irritated and alarmed by the laws of proscription against their clergy, and by the heavy penalties on recusancy, which, as they alleged, showed a manifest purpose to reduce them to poverty;[245] so some desperate men saw no surer means to rescue their cause than the queen's assassination. One Somerville, half a lunatic, and Parry, a man who, long employed as a spy upon the papists, had learned to serve with sincerity those he was sent to betray, were the first who suffered death for unconnected plots against Elizabeth's life.[246] _Plot in favour of Mary._--More deep-laid machinations were carried on by several catholic laymen at home and abroad, among whom a brother of Lord Paget was the most prominent.[247] These had in view two objects, the deliverance of Mary, and the death of her enemy. Some perhaps who were engaged in the former project did not give countenance to the latter. But few, if any, ministers have been better served by their spies than Cecil and Walsingham. It is surprising to see how every letter seems to have been intercepted, every thread of these conspiracies unravelled, every secret revealed to these wise counsellors of the queen. They saw that while one lived, whom so many deemed the presumptive heir, and from whose succession they anticipated, at least in possibility, an entire reversal of all that had been wrought for thirty years, the queen was as a mark for the pistol or dagger of every zealot. And fortunate, no question, they thought it, that the detection of Babington's conspiracy enabled them with truth, or a semblance of truth, to impute a participation in that crime to the most dangerous enemy whom, for their mistress, their religion, or themselves, they had to apprehend. Mary had now consumed the best years of her life in custody; and, though still the perpetual object of the queen's vigilance, had perhaps gradually become somewhat less formidable to the protestant interest. Whether she would have ascended the throne, if Elizabeth had died during the latter years of her imprisonment, must appear very doubtful, when we consider the increasing strength of the puritans, the antipathy of the nation to Spain, the prevailing opinion of her consent to Darnley's murder, and the obvious expedient of treating her son, now advancing to manhood, as the representative of her claim. The new projects imputed to her friends even against the queen's life, exasperated the hatred of the protestants against Mary. An association was formed in 1584, the members of which bound themselves by oath "to withstand and pursue, as well by force of arms as by all other means of revenge, all manner of persons, of whatsoever state they shall be and their abettors, that shall attempt any act, or counsel, or consent to anything that shall tend to the harm of her majesty's royal person; and never to desist from all manner of forcible pursuit against such persons, to the utter extermination of them, their counsellors, aiders, and abettors. And if any such wicked attempt against her most royal person shall be taken in hand or procured, whereby any that have, may or shall pretend title to come to this crown by the untimely death of her majesty so wickedly procured (which God of his mercy forbid!), that the same may be avenged, we do not only bind ourselves both jointly and severally never to allow, accept, or favour any such pretended successor, by whom or for whom any such detestable act shall be attempted or committed, as unworthy of all government in any christian realm or civil state, but do also further vow and promise, as we are most bound, and that in the presence of the eternal and everlasting God, to _prosecute such person or persons to death_, with our joint and particular forces, and to act the utmost revenge upon them, that by any means we or any of us can devise and do, or cause to be devised and done for their utter overthrow and extirpation."[248] _Execution of Mary Queen of Scots._--The pledge given by this voluntary association received the sanction of parliament in an act "for the security of the queen's person, and continuance of the realm in peace." This statute enacts that, if any invasion or rebellion should be made by or for any person pretending title to the crown after her majesty's decease, or if anything be confessed or imagined tending to the hurt of her person with the privity of any such person, a number of peers, privy counsellors, and judges, to be commissioned by the queen, should examine and give judgment on such offences, and all circumstances relating thereto; after which judgment all persons against whom it should be published should be disabled for ever to make any such claim.[249] I omit some further provisions to the same effect, for the sake of brevity. But we may remark that this statute differs from the associators' engagement, in omitting the outrageous threat of pursuing to death any person, whether privy or not to the design, on whose behalf an attempt against the queen's life should be made. The main intention of the statute was to procure, in the event of any rebellious movements, what the queen's counsellors had long ardently desired to obtain from her, an absolute exclusion of Mary from the succession. But, if the scheme of assassination, devised by some of her desperate partisans, had taken effect, however questionable might be her concern in it, I have little doubt that the rage of the nation would, with or without some process of law, have instantly avenged it in her blood. This was, in the language of parliament, their great cause; an expression which, though it may have an ultimate reference to the general interest of religion is never applied, so far as I remember, but to the punishment of Mary, which they had demanded in 1572, and now clamoured for in 1586. The addresses of both houses to the queen, to carry the sentence passed by the commissioners into effect, her evasive answers and feigned reluctance, as well as the strange scenes of hypocrisy which she acted afterwards, are well known matters of history, upon which it is unnecessary to dwell. No one will be found to excuse the hollow affectation of Elizabeth; but the famous sentence that brought Mary to the scaffold, though it has certainly left in popular opinion a darker stain on the queen's memory than any other transaction of her life, if not capable of complete vindication, has at least encountered a disproportioned censure. It is of course essential to any kind of apology for Elizabeth in this matter, that Mary should have been assenting to a conspiracy against her life. For it could be no real crime to endeavour at her own deliverance; nor, under the circumstances of so long and so unjust a detention, would even a conspiracy against the aggressor's power afford a moral justification for her death. But though the proceedings against her are by no means exempt from the shameful breach of legal rules, almost universal in trials for high treason during that reign (the witnesses not having been examined in open court); yet the depositions of her two secretaries, joined to the confessions of Babington and other conspirators, form a body of evidence, not indeed irresistibly convincing, but far stronger than we find in many instances where condemnation has ensued. And Hume has alleged sufficient reasons for believing its truth, derived from the great probability of her concurring in any scheme against her oppressor, from the certainty of her long correspondence with the conspirators (who, I may add, had not made any difficulty of hinting to her their designs against the queen's life),[250] and from the deep guilt that the falsehood of the charge must inevitably attach to Sir Francis Walsingham.[251] Those at least who cannot acquit the Queen of Scots of her husband's murder, will hardly imagine that she would scruple to concur in a crime so much more capable of extenuation, and so much more essential to her interests. But as the proofs are not perhaps complete, we must hypothetically assume her guilt, in order to set this famous problem in the casuistry of public law upon its proper footing. It has been said so often, that few perhaps wait to reflect whether it has been said with reason, that Mary, as an independent sovereign, was not amenable to any English jurisdiction. This, however, does not appear unquestionable. By one of those principles of law, which may be called natural, as forming the basis of a just and rational jurisprudence, every independent government is supreme within its own territory. Strangers, voluntarily resident within a state, owe a temporary allegiance to its sovereign, and are amenable to the jurisdiction of his tribunals; and this principle, which is perfectly conformable to natural law, has been extended by positive usage even to those who are detained in it by force. Instances have occurred very recently in England, when prisoners of war have suffered death for criminal offences; and if some have doubted the propriety of carrying such sentences into effect, where a penalty of unusual severity has been inflicted by our municipal law, few, I believe, would dispute the fitness of punishing a prisoner of war for wilful murder, in such a manner as the general practice of civil societies and the prevailing sentiments of mankind agree to point out. It is certainly true that an exception to this rule, incorporated with the positive law of nations, and established, no doubt, before the age of Elizabeth, has rendered the ambassadors of sovereign princes exempt, in all ordinary cases at least, from criminal process. Whether, however, an ambassador may not be brought to punishment for such a flagrant abuse of the confidence which is implied by receiving him, as a conspiracy against the life itself of the prince at whose court he resides, has been doubted by those writers who are most inclined to respect the privileges with which courtesy and convenience have invested him.[252] A sovereign, during a temporary residence in the territories of another, must of course possess as extensive an immunity as his representative. But that he might, in such circumstances, frame plots for the prince's assassination with impunity, seems to take for granted some principle that I do not apprehend. But whatever be the privilege of inviolability attached to sovereigns, it must, on every rational ground, be confined to those who enjoy and exercise dominion in some independent territory. An abdicated or dethroned monarch may preserve his title by the courtesy of other states, but cannot rank with sovereigns in the tribunals where public law is administered. I should be rather surprised to hear any one assert that the parliament of Paris was incompetent to try Christina for the murder of Monaldeschi. And, though we must admit that Mary's resignation of her crown was compulsory, and retracted on the first occasion; yet after a twenty years' loss of possession, when not one of her former subjects avowed allegiance to her, when the King of Scotland had been so long acknowledged by England and by all Europe, is it possible to consider her as more than a titular queen, divested of every substantial right to which a sovereign tribunal could have regard? She was styled accordingly, in the indictment, "Mary, daughter and heir of James the Fifth, late King of Scots, otherwise called Mary Queen of Scots, dowager of France." We read even that some lawyers would have had her tried by a jury of the county of Stafford, rather than the special commission; which Elizabeth noticed as a strange indignity. The commission, however, was perfectly legal under the recent statute.[253] But, while we can hardly pronounce Mary's execution to have been so wholly iniquitous and unwarrantable as it has been represented, it may be admitted that a more generous nature than that of Elizabeth would not have exacted the law's full penalty. The Queen of Scots' detention in England was in violation of all natural, public, and municipal law; and if reasons of state policy or precedents from the custom of princes are allowed to extenuate this injustice, it is to be asked whether such reasons and such precedents might not palliate the crime of assassination imputed to her. Some might perhaps allege, as was so frequently urged at the time, that if her life could be taken with justice, it could not be spared in prudence; and that Elizabeth's higher duty to preserve her people from the risks of civil commotion must silence every feeling that could plead for mercy. Of this necessity different judgments may perhaps be formed; it is evident that Mary's death extinguished the best hope of popery in England: but the relative force of the two religions was greatly changed since Norfolk's conspiracy; and it appears to me that an act of parliament explicitly cutting her off from the crown, and at the same time entailing it on her son, would have afforded a very reasonable prospect of securing the succession against all serious disturbance. But this neither suited the inclination of Elizabeth, nor of some among those who surrounded her. _Continued persecution of Roman catholics_.--As the catholics endured without any open murmuring the execution of her on whom their fond hopes had so long rested, so for the remainder of the queen's reign they by no means appear, when considered as a body, to have furnished any specious pretexts for severity. In that memorable year, when the dark cloud gathered around our coasts, when Europe stood by in fearful suspense to behold what should be the result of that great cast in the game of human politics, what the craft of Rome, the power of Philip, the genius of Farnese, could achieve against the island-queen with her Drakes and Cecils--in that agony of the protestant faith and English name, they stood the trial of their spirits without swerving from their allegiance. It was then that the catholics in every county repaired to the standard of the lord-lieutenant, imploring that they might not be suspected of bartering the national independence for their religion itself. It was then that the venerable Lord Montague brought a troop of horse to the queen at Tilbury, commanded by himself, his son and grandson.[254] It would have been a sign of gratitude if the laws depriving them of the free exercise of their religion had been, if not repealed, yet suffered to sleep, after these proofs of loyalty. But the execution of priests and of other catholics became on the contrary more frequent, and the fines for recusancy exacted as rigorously as before.[255] A statute was enacted, restraining popish recusants, a distinctive name now first imposed by law, to particular places of residence, and subjecting them to other vexatious provisions.[256] All persons were forbidden, by proclamation, to harbour any of whose conformity they were not assured.[257] Some indulgence was doubtless shown during all Elizabeth's reign to particular persons, and it was not unusual to release priests from confinement; but such precarious and irregular connivance gave more scandal to the puritans than comfort to the opposite party. The catholic martyrs under Elizabeth amount to no inconsiderable number. Dodd reckons them at 191; Milner has raised the list to 204. Fifteen of these, according to him, suffered for denying the queen's supremacy, 126 for exercising their ministry, and the rest for being reconciled to the Romish church. Many others died of hardships in prison, and many were deprived of their property.[258] There seems nevertheless to be good reason for doubting whether any one who was executed might not have saved his life by explicitly denying the pope's power to depose the queen. It was constantly maintained by her ministers, that no one had been executed for his religion. This would be an odious and hypocritical subterfuge, if it rested on the letter of these statutes, which adjudge the mere manifestation of a belief in the Roman catholic religion, under certain circumstances, to be an act of treason. But both Lord Burleigh, in his _Execution of Justice_, and Walsingham in a letter published by Burnet,[259] positively assert the contrary; and I am not aware that their assertion has been disproved. This certainly furnishes a distinction between the persecution under Elizabeth (which, unjust as it was in its operation, yet as far as it extended to capital inflictions, had in view the security of the government), and that which the protestants had sustained in her sister's reign, springing from mere bigotry and vindictive rancour, and not even shielding itself at the time with those shallow pretexts of policy which it has of late been attempted to set up in its extenuation. But that which renders these condemnations of popish priests so iniquitous, is, that the belief in, or rather the refusal to disclaim, a speculative tenet, dangerous indeed and incompatible with loyalty, but not coupled with any overt act, was construed into treason; nor can any one affect to justify these sentences, who is not prepared to maintain that a refusal of the oath of abjuration, while the pretensions of the house of Stuart subsisted, might lawfully or justly have incurred the same penalty.[260] An apology was always deduced for these measures, whether of restriction or punishment, adopted against all adherents to the Roman church, from the restless activity of that new militia which the holy see had lately organised. The mendicant orders established in the thirteenth century had lent former popes a powerful aid towards subjecting both the laity and the secular priesthood, by their superior learning and ability, their emulous zeal, their systematic concert, their implicit obedience. But in all these requisites for good and faithful janissaries of the church, they were far excelled by the new order of Ignatius Loyola. Rome, I believe, found in their services what has stayed her fall. They contributed in a very material degree to check the tide of the reformation. Subtle alike and intrepid, pliant in their direction, unshaken in their aim, the sworn, implacable, unscrupulous enemies of protestant governments, the jesuits were a legitimate object of jealousy and restraint. As every member of that society enters into an engagement of absolute, unhesitating obedience to its superior, no one could justly complain that he was presumed capable at least of committing any crimes that the policy of his monarch might enjoin. But if the jesuits by their abilities and busy spirit of intrigue promoted the interests of Rome, they raised up enemies by the same means to themselves within the bosom of the church; and became little less obnoxious to the secular clergy, and to a great proportion of the laity, than to the protestants whom they were commissioned to oppose. Their intermeddling character was shown in the very prisons occupied by catholic recusants, where a schism broke out between the two parties, and the secular priests loudly complained of their usurping associates.[261] This was manifestly connected with the great problem of allegiance to the queen, which the one side being always ready to pay, did not relish the sharp usage it endured on account of the other's disaffection. The council indeed gave some signs of attending to this distinction, by a proclamation issued in 1602, ordering all priests to depart from the kingdom, unless they should come in and acknowledge their allegiance, with whom the queen would take further order.[262] Thirteen priests came forward on this, with a declaration of allegiance as full as could be devised. Some of the more violent papists blamed them for this; and the Louvain divines concurred in the censure.[263] There were now two parties among the English catholics; and those who, goaded by the sense of long persecution, and inflamed by obstinate bigotry, regarded every heretical government as unlawful or unworthy of obedience, used every machination to deter the rest from giving any test of their loyalty. These were the more busy, but by much the less numerous class; and their influence was mainly derived from the law's severity, which they had braved or endured with fortitude. It is equally candid and reasonable to believe that, if a fair and legal toleration, or even a general connivance at the exercise of their worship, had been conceded in the first part of Elizabeth's reign, she would have spared herself those perpetual terrors of rebellion which occupied all her later years. Rome would not indeed have been appeased, and some desperate fanatic might have sought her life; but the English catholics collectively would have repaid her protection by an attachment, which even her rigour seems not wholly to have prevented. It is not to be imagined that an entire unanimity prevailed in the councils of this reign as to the best mode of dealing with the adherents of Rome. Those temporary connivances or remissions of punishment, which, though to our present view they hardly lighten the shadows of this persecution, excited loud complaints from bigoted men, were owing to the queen's personal humour, or the influence of some advisers more liberal than the rest. Elizabeth herself seems always to have inclined rather to indulgence than extreme severity. Sir Christopher Hatton, for some years her chief favourite, incurred odium for his lenity towards papists, and was, in their own opinion, secretly inclined to them.[264] Whitgift found enough to do with an opposite party. And that too noble and high-minded spirit, so ill fitted for a servile and dissembling court, the Earl of Essex, was the consistent friend of religious liberty, whether the catholic or the puritan were to enjoy it. But those counsellors, on the other hand, who favoured the more precise reformers, and looked coldly on the established church, never failed to demonstrate their protestantism by excessive harshness towards the old religion's adherents. That bold bad man, whose favour is the great reproach of Elizabeth's reign, the Earl of Leicester, and the sagacious, disinterested, inexorable Walsingham, were deemed the chief advisers of sanguinary punishments. But, after their deaths, the catholics were mortified to discover that Lord Burleigh, from whom they had hoped for more moderation, persisted in the same severities; contrary, I think, to the principles he had himself laid down in the paper from which I have above made some extracts.[265] The restraints and penalties, by which civil governments have at various times thought it expedient to limit the religious liberties of their subjects, may be arranged in something like the following scale. The first and slightest degree is the requisition of a test of conformity to the established religion, as the condition of exercising offices of civil trust. The next step is to restrain the free promulgation of opinions, especially through the press. All prohibitions of the open exercise of religious worship appear to form a third, and more severe, class of restrictive laws. They become yet more rigorous, when they afford no indulgence to the most private and secret acts of devotion or expressions of opinion. Finally, the last stage of persecution is to enforce by legal penalties a conformity to the established church, or an abjuration of heterodox tenets. The first degree in this classification, or the exclusion of dissidents from trust and power, though it be always incumbent on those who maintain it to prove its necessity, may, under certain rare circumstances, be conducive to the political well-being of a state; and can then only be reckoned an encroachment on the principles of toleration, when it ceases to produce a public benefit sufficient to compensate for the privation it occasions to its objects. Such was the English Test Act during the interval between 1672 and 1688. But, in my judgment, the instances which the history of mankind affords, where even these restrictions have been really consonant to the soundest policy, are by no means numerous. Cases may also be imagined, where the free discussion of controverted doctrines might for a time at least be subjected to some limitation for the sake of public tranquillity. I can scarcely conceive the necessity of restraining an open exercise of religious rites in any case, except that of glaring immorality. In no possible case can it be justifiable for the temporal power to intermeddle with the private devotions or doctrines of any man. But least of all, can it carry its inquisition into the heart's recesses, and bend the reluctant conscience to an insincere profession of truth, or extort from it an acknowledgment of error, for the purpose of inflicting punishment. The statutes of Elizabeth's reign comprehend every one of these progressive degrees of restraint and persecution. And it is much to be regretted that any writers worthy of respect should, either through undue prejudice against an adverse religion, or through timid acquiescence in whatever has been enacted, have offered for this odious code the false pretext of political necessity. That necessity, I am persuaded, can never be made out: the statutes were, in many instances, absolutely unjust; in others, not demanded by circumstances; in almost all, prompted by religious bigotry, by excessive apprehension, or by the arbitrary spirit with which our government was administered under Elizabeth. FOOTNOTES: [155] Elizabeth was much suspected of a concern in the conspiracy of 1554, which was more extensive than appeared from Wyatt's insurrection, and had in view the placing her on the throne, with the Earl of Devonshire for her husband. Wyatt indeed at his execution acquitted her; but as he said as much for Devonshire, who is proved by the letters of Noailles to have been engaged, his testimony is of less value. Nothing, however, appears in these letters, I believe, to criminate Elizabeth. Her life was saved, against the advice of the imperial court, and of their party in the cabinet, especially Lord Paget, by Gardiner, according to Dr. Lingard, writing on the authority of Renard's despatches. Burnet, who had no access to that source of information, imagines Gardiner to have been her most inveterate enemy. She was even released from prison for the time, though soon afterwards detained again, and kept in custody, as is well known, for the rest of this reign. Her inimitable dissimulation was all required to save her from the penalties of heresy and treason. It appears by the memoir of the Venetian ambassador, in 1557 (Lansdowne MSS. 840), as well as from the letters of Noailles, that Mary was desirous to change the succession, and would have done so, had it not been for Philip's reluctance, and the impracticability of obtaining the consent of parliament. Though of a dissembling character, she could not conceal the hatred she bore to one who brought back the memory of her mother's and her own wrongs; especially when she saw all eyes turned towards the successor, and felt that the curse of her own barrenness was to fall on her beloved religion. Elizabeth had been not only forced to have a chapel in her house, and to give all exterior signs of conformity, but to protest on oath her attachment to the catholic faith; though Hume, who always loves a popular story, gives credence to the well known verses ascribed to her, in order to elude a declaration of her opinion on the sacrament. The inquisitors of that age were not so easily turned round by an equivocal answer. Yet Elizabeth's faith was constantly suspected. "Accresce oltro questo l'odio," says the Venetian, "il sapere che sia aliena dalla religione presente, per essere non pur nata, ma dotta ed allevata nell' altra, che se bene con la esteriore ha mostrato, e mostra di essersi ridotta, vivendo cattolicamente, pure è opinione che dissimuli e nell' interiore la ritenga più che mai." [156] Elizabeth ascended the throne November 17, 1558. On the 5th of December Mary was buried; and on this occasion White, bishop of Winchester, in preaching her funeral sermon, spoke with virulence against the protestant exiles, and expressed apprehension of their return. Burnet, iii. 272. Directions to read part of the service in English, and forbidding the elevation of the host, were issued prior to the proclamation of December 27, against innovations without authority. The great seal was taken from Archbishop Heath early in January, and given to Sir Nicholas Bacon. Parker was pitched upon to succeed Pole at Canterbury in the preceding month. From the dates of these and other facts, it may be fairly inferred that Elizabeth's resolution was formed independently of the pope's behaviour towards Sir Edward Karn; though that might probably exasperate her against the adherents of the Roman see, and make their religion appear more inconsistent with their civil allegiance. If, indeed, the refusal of the bishops to officiate at her coronation (January 14, 1558-9) were founded in any degree on Paul IV.'s denial of her title, it must have seemed in that age within a hair's-breadth of high treason. But it more probably arose from her order that the host should not be elevated, which in truth was not legally to be justified. Mass was said, however, at her coronation; so that she seems to have dispensed with this prohibition. [157] See a paper by Cecil on the best means of reforming religion, written at this time with all his cautious wisdom, in Burnet, or in Strype's _Annals of the Reformation_, or in the _Somers Tracts_. [158] _Parl. Hist._ vol. i. p. 394. In the reign of Edward, a prayer had been inserted in the liturgy to deliver us "from the Bishop of Rome and all his detestable enormities." This was now struck out; and, what was more acceptable to the nation, the words used in distributing the elements were so contrived by blending the two forms successively adopted under Edward, as neither to offend the popish or Lutheran, nor the Zuinglian communicant. A rubric directed against the doctrine of the real or corporal presence was omitted. This was replaced after the restoration. Burnet owns that the greater part of the nation still adhered to this tenet though it was not the opinion of the rulers of the church. ii. 390, 406. [159] Burnet; Strype's _Annals_, 169. Pensions were reserved for those who quitted their benefices on account of religion. Burnet, ii. 398. This was a very liberal measure, and at the same time a politic check on their conduct. Lingard thinks the number must have been much greater; but the visitors' reports seem the best authority. It is however highly probable that others resigned their preferments afterwards, when the casuistry of their church grew more scrupulous. It may be added, that the visitors restored the married clergy who had been dispossessed in the preceding reign; which would of course considerably augment the number of sufferers for popery. [160] 1 Eliz. c. i. The oath of supremacy was expressed as follows: "I, A. B., do utterly testify and declare, that the queen's highness is the only supreme governor of this realm, and all other her highness's dominions and countries, as well in all spiritual and ecclesiastical things or causes, as temporal; and that no foreign prince, person, prelate, state, or potentate, hath or ought to have any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities, and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the queen's highness, her heirs and lawful successors, and to my power shall assist and defend all jurisdictions, pre-eminences, privileges, and authorities, granted or belonging to the queen's highness, her heirs and successors, or united and annexed to the imperial crown of this realm." A remarkable passage in the injunctions to the ecclesiastical visitors of 1559, which may be reckoned in the nature of a contemporaneous exposition of the law, restrains the royal supremacy established by this act, and asserted in the above oath, in the following words: "Her majesty forbiddeth all manner her subjects to give ear or credit to such perverse and malicious persons, which most sinisterly and maliciously labour to notify to her loving subjects, how by words of the said oath it may be collected, that the kings or queens of this realm, possessors of the crown, may challenge authority and power of ministry of divine service in the church; wherein her said subjects be much abused by such evil-disposed persons. For certainly her majesty neither doth, nor ever will, challenge any other authority than that was challenged and lately used by the said noble kings of famous memory, King Henry VIII. and King Edward VI., which is, and was of ancient time, due to the imperial crown of this realm; that is, under God to have the sovereignty and rule over all manner of persons born within these her realms, dominions, and countries, of what estate, either ecclesiastical or temporal, soever they be, so as no other foreign power shall or ought to have any superiority over them. And if any person that hath conceived any other sense of the form of the said oath shall accept the same with this interpretation, sense, or meaning, her majesty is well pleased to accept every such in that behalf, as her good and obedient subjects, and shall acquit them of all manner of penalties contained in the said act, against such as shall peremptorily or obstinately take the same oath." 1 _Somers Tracts_, edit. Scott, 73. This interpretation was afterwards given in one of the thirty-nine articles, which having been confirmed by parliament, it is undoubtedly to be reckoned the true sense of the oath. Mr. Butler, in his _Memoirs of English Catholics_, vol. i. p. 157, enters into a discussion of the question, whether Roman catholics might conscientiously take the oath of supremacy in this sense. It appears that in the seventeenth century some contended for the affirmative; and this seems to explain the fact, that several persons of that persuasion, besides peers from whom the oath was not exacted, did actually hold offices under the Stuarts, and even enter into parliament, and that the test act and declaration against transubstantiation were thus rendered necessary to make their exclusion certain. Mr. B. decides against taking the oath, but on grounds by no means sufficient; and oddly overlooks the decisive objection, that it denies _in toto_ the jurisdiction and ecclesiastical authority of the pope. No writer, as far as my slender knowledge extends, of the Gallican or German school of discipline, has gone to this length; certainly not Mr. Butler himself, who in a modern publication (_Book of the Roman Catholic Church_, p. 120), seems to consider even the appellant jurisdiction in ecclesiastical causes as vested in the holy see by divine right. As to the exposition before given of the oath of supremacy, I conceive that it was intended not only to relieve the scruples of catholics, but of those who had imbibed from the school of Calvin an apprehension of what is sometimes, though rather improperly, called Erastianism--the merging of all spiritual powers, even those of ordination and of preaching, in the paramount authority of the state, towards which the despotism of Henry, and obsequiousness of Cranmer, had seemed to bring the church of England. [161] 1 Eliz. c. 2. [162] Strype's _Annals_, i. 233, 241. [163] Haynes, 395. The penalty for causing mass to be said, by the Act of Uniformity, was only 100 marks for the first offence. These imprisonments were probably in many cases illegal, and only sustained by the arbitrary power of the high commission court. [164] Strype, 220. [165] Questions of conscience were circulated, with answers, all tending to show the unlawfulness of conformity. Strype, 228. There was nothing more in this than the catholic clergy were bound in consistency with their principles to do, though it seemed very atrocious to bigots. Mr. Butler says, that some theologians at Trent were consulted as to the lawfulness of occasional conformity to the Anglican rites, who pronounced against it. _Mem. of Catholics_, i. 171. [166] The trick of conjuration about the queen's death began very early in her reign (Strype, i. 7), and led to a penal statute against "fond and fantastical prophecies." 5 Eliz. c. 15. [167] I know not how to charge the catholics with the conspiracy of the two Poles, nephews of the cardinal, and some others, to obtain five thousand troops from the Duke of Guise, and proclaim Mary queen. This seems, however, to have been the immediate provocation for the statute 5 Eliz.; and it may be thought to indicate a good deal of discontent in that party upon which the conspirators relied. But as Elizabeth spared the lives of all who were arraigned, and we know no details of the case, it may be doubted whether their intentions were altogether so criminal as was charged. Strype, i. 333; Camden, 388 (in Kennet). Strype tells us (i. 374) of resolutions adopted against the queen in a consistory held by Pius IV. in 1563; one of these is a pardon to any cook, brewer, vintner, or other, that would poison her. But this is so unlikely, and so little in that pope's character, that it makes us suspect the rest, as false information of a spy. [168] 5 Eliz. c. 1. [169] Strype, Collier, _Parliamentary History_. The original source is the manuscript collections of Fox the martyrologist, a very unsuspicious authority; so that there seems every reason to consider this speech, as well as Mr. Atkinson's, authentic. The following is a specimen of the sort of answer given to these arguments: "They say it touches conscience, and it is a thing wherein a man ought to have a scruple; but if any hath a conscience in it, these four years' space might have settled it. Also, after his first refusal, he hath three months' respite for conference and settling of his conscience." Strype, 270. [170] Strype's _Life of Parker_, 125. [171] Strype's _Annals_, 149. Tunstall was treated in a very handsome manner by Parker, whose guest he was. But Feckenham, abbot of Westminster, met with rather unkind usage, though he had been active in saving the lives of protestants under Mary, from Bishops Horn and Cox (the latter of whom seems to have been an honest, but narrow-spirited and peevish man), and at last was sent to Wisbeach gaol for refusing the oath of supremacy. Strype, i. 457, ii. 526; Fuller's _Church History_, 178. [172] 8 Eliz. c. 1. Eleven peers dissented, all noted catholics, except the Earl of Sussex. Strype, i. 492. [173] Even Dr. Lingard admits that Parker was consecrated at Lambeth, on December 19, 1559; but conjectures that there may have been some previous meeting at the Nag's Head, which gave rise to the story. This means that any absurdity may be presumed, rather than acknowledge good catholics to have propagated a lie. [174] Nobis vero factura est rem adeo gratam, ut omnem simus daturi operam, quo possimus eam rem serenitati vestræ mutuis benevolentiæ et fraterni animi studiis cumulatissimè compensare. See the letter in the additions to the first volume of Strype's _Annals_, prefixed to the second, p. 67. It has been erroneously referred by Camden, whom many have followed, to the year 1559, but bears date 24th September 1563. [175] For the dispositions of Ferdinand and Maximilian towards religious toleration in Austria, which indeed for a time existed, see F. Paul, _Concile de Trente_ (par Courayer), ii. 72, 197, 220, etc.; Schmidt, _Hist. des Allemands_, viii. 120, 179, etc.; Flechier, _Vie de Commendom_, 388; or Coxe's _House of Austria_. [176] Strype, 513, _et alibi_. [177] Strype, 522. He says the lawyers in most eminent places were generally favourers of popery. P. 269. But, if he means the judges, they did not long continue so. [178] Cum regina Maria moreretur, et religio in Angliâ mutaret, post episcopos et prælatos catholicos captos et fugatos, populus velut ovium grex sine pastore in magnis tenebris et caligine animarum suarum oberravit. Unde etiam factum est multi ut catholicorum superstitionibus impiis dissimulationibus et gravibus juramentis contra sanctæ sedis apostolicæ auctoritatem, cum admodum parvo aut plane nullo conscientiarum suarum scrupulo assuescerent. Frequentabant ergo hæreticorum synagogas, intererant eorum concionibus, atque ad easdem etiam audiendas filios et familiam suam compellabant. Videbatur illis ut catholici essent, sufficere una cum hæreticis eorum templa non adire, ferri autem posse si ante vel post illos eadem intrassent. Communicabatur de sacrilegâ Calvini coenâ, vel secreto et clanculum intra privatos parietes. Missam qui audiverant, ac postea Calvinianos se haberi volebant, sic se de præcepto satisfecisse existimabant. Deferebantur filii catholicorum ad baptisteria hæreticorum, ac inter illorum manus matrimonia contrahebant. Atque hæc omnia sine omni scrupulo fiebant, facta propter catholicorum sacerdotum ignorantiam, qui talia vel licere credebant, vel timore quodam præpediti dissimulabant. Nunc autem per Dei misericordiam omnes catholici intelligunt, ut salventur non satis esse corde fidem catholicam credere, sed eandem etiam ore oportere confiteri. _Ribadeneira de Schismate_, p. 53. See also Butler's _English Catholics_, vol. iii. p. 156. [179] Dodd's _Church His._ vol. ii. p. 8. [180] Thomas Heath, brother to the late Archbishop of York, was seized at Rochester about 1570, well provided with anabaptist and Arian tracts for circulation. Strype, i. 521. For other instances, see p. 281, 484; _Life of Parker_, 244; Nalson's _Collections_, vol. i.; Introduction, p. 39, etc., from a pamphlet written also by Nalson, entitled, _Foxes and Firebrands_. It was surmised that one Henry Nicolas, chief of a set of fanatics, called the Family of Love, of whom we read a great deal in this reign, and who sprouted up again about the time of Cromwell, was secretly employed by the popish party. Strype, ii. 37, 589, 595. But these conjectures were very often ill-founded, and possibly so in this instance, though the passages quoted by Strype (589) are suspicious. Brandt however (_Hist. of Reformation in Low Countries_, vol. i. p. 105) does not suspect Nicolas of being other than a fanatic. His sect appeared in the Netherlands about 1555. [181] "That church [of England] and the queen, its re-founder, are clear of persecution, as regards the catholics. No church, no sect, no individual even, had yet professed the principle of toleration." Southey's _Book of the Church_, vol. ii. p. 285. If the second of these sentences is intended as a proof of the first, I must say, it is little to the purpose. But it is not true in this broad way of assertion. Nor to mention Sir Thomas More's _Utopia_, the principle of toleration had been avowed by the Chancellor l'Hospital, and many others in France. I mention him as on the stronger side; for in fact the weaker had always professed the general principle, and could demand toleration from those of different sentiments on no other plea. And as to _capital_ inflictions for heresy, which Mr. S. seems chiefly to have in his mind, there is reason to believe that many protestants never approved them. Sleidan intimates (vol. iii. p. 263) that Calvin incurred odium by the death of Servetus. And Melancthon says expressly the same thing, in the letter which he unfortunately wrote to the reformer of Geneva, declaring his own approbation of the crime; and which I am willing to ascribe rather to his constitutional fear of giving offence than to sincere conviction. [182] The address of the House of Commons, begging the queen to marry, was on February 6, 1559. [183] Haynes, 233. [184] See particularly two letters in the _Hardwicke State Papers_, i. 122 and 163, dated in October and November 1560, which show the alarm excited by the queen's ill-placed partiality. [185] Cecil's earnestness for the Austrian marriage appears plainly (Haynes, 430), and still more in a remarkable minute, where he has drawn up, in parallel columns, according to a rather formal, but perspicuous, method he much used, his reasons in favour of the archduke, and against the Earl of Leicester. The former chiefly relate to foreign politics, and may be conjectured by those acquainted with history. The latter are as follows: 1. Nothing is increased by marriage of him, either in riches, estimation, or power. 2. It will be thought that the slanderous speeches of the queen with the earl have been true. 3. He shall study nothing but to enhance his own particular friends to wealth, to offices, to lands, and to offend others. 4. He is infamed by death of his wife. 5. He is far in debt. 6. He is likely to be unkind, and jealous of the queen's majesty. _Id._ 444. These suggestions, and especially the second, if actually laid before the queen, show the plainness and freedom which this great statesman ventured to use towards her. The allusion to the death of Leicester's wife, which had occurred in a very suspicious manner, at Cumnor, near Oxford, and is well known as the foundation of the novel of _Kenilworth_, though related there with great anachronism and confusion of persons, may be frequently met with in contemporary documents. By the above quoted letters in the _Hardwicke Papers_, it appears that those who disliked Leicester had spoken freely of this report to the queen. [186] Elizabeth carried her dissimulation so far as to propose marriage articles, which were formally laid before the imperial ambassador. These, though copied from what had been agreed on Mary's marriage with Philip, now seemed highly ridiculous, when exacted from a younger brother without territories or revenues. Jura et leges regni conserventur, neque quicquam mutetur in religione aut in statu publico. Officia et magistratus exerceantur per naturales. Neque regina, neque liberi sui educantur ex regno sine consensu regni, etc. Haynes, 438. Cecil was not too wise a man to give some credit to astrology. The stars were consulted about the queen's marriage; and those veracious oracles gave response, that she should be married in the thirty-first year of her age to a _foreigner_, and have one son, who would be a great prince, and a daughter, etc., etc. Strype, ii. 16, and Appendix 4, where the nonsense may be read at full length. Perhaps, however, the wily minister was no dupe, but meant that his mistress should be. [187] The council appear in general to have been as resolute against tolerating the exercise of the catholic religion in any husband the queen might choose, as herself. We find, however, that several divines were consulted on two questions: 1. Whether it were lawful to marry a papist. 2. Whether the queen might permit mass to be said. To which answers were given, not agreeing with each other. Strype, ii. 150, and Appendix 31, 33. When the Earl of Worcester was sent over to Paris in 1571, as proxy for the queen, who had been made sponsor for Charles IX.'s infant daughter, she would not permit him, though himself a catholic, to be present at the mass on that occasion. ii. 171. [188] "The people," Camden says, "cursed Huic, the queen's physician, as having dissuaded the queen from marrying on account of some impediment and defect in her." Many will recollect the allusion to this in Mary's scandalous letter to Elizabeth, wherein, under pretence of repeating what the Countess of Shrewsbury had said, she utters everything that female spite and mistrust could dictate. But in the long and confidential correspondence of Cecil, Walsingham, and Sir Thomas Smith, about the queen's marriage with the Duke of Anjou, in 1571, for which they were evidently most anxious, I do not perceive the slightest intimation that the prospect of her bearing children was at all less favourable than in any other case. The council seem, indeed, in the subsequent treaty with the other Duke of Anjou, in 1579, when she was forty-six, to have reckoned on something rather beyond the usual laws of nature in this respect; for in a minute by Cecil of the reasons for and against this marriage, he sets down the probability of issue on the favourable side. "By marriage with Monsieur she is likely to have children, _because of his youth_;" as if her age were no objection. [189] Camden, after telling us that the queen's disinclination to marry raised great clamours, and that the Earls of Pembroke and Leicester had professed their opinion that she ought to be obliged to take a husband, or that a successor should be declared by act of parliament even against her will, asserts some time after, as inconsistently as improperly, that "very few but malcontents and traitors appeared very solicitous in the business of a successor."--P. 401 (in Kennet's _Complete Hist. of England_, vol. ii.). This, however, from Camden's known proneness to flatter James, seems to indicate that the Suffolk party were more active than the Scots upon this occasion. Their strength lay in the House of Commons, which was wholly protestant, and rather puritan. At the end of Murden's _State Papers_ is a short journal kept by Cecil, containing a succinct and authentic summary of events in Elizabeth's reign. I extract as a specimen such passages as bear on the present subject. October 6, 1566. Certain lewd bills thrown abroad against the queen's majesty for not assenting to have the matter of succession proved in parliament; and bills also to charge Sir W. Cecil, the secretary, with the occasion thereof. 27. Certain lords, viz., the Earls of Pembroke and Leicester, were excluded the presence-chamber for furthering the proposition of the succession to be declared by parliament without the queen's allowance. November 12. Messrs. Bell and Monson moved trouble in the parliament about the succession. 14. The queen had before her thirty lords and thirty commoners, to receive her answer concerning their petition for the succession and for marriage. Dalton was blamed for speaking in the Commons' house. 24. Command given to the parliament not to treat of the succession. Nota: in this parliament time the queen's majesty did remit a part of the offer of a subsidy to the Commons, who offered largely, to the end to have had the succession established. P. 762. [190] Catherine, after her release from the Tower, was placed in the custody of her uncle, Lord John Grey, but still suffering the queen's displeasure, and separated from her husband. Several interesting letters from her and her uncle to Cecil are among the Lansdowne MSS. vol. vi. They cannot be read without indignation at Elizabeth's unfeeling severity. Sorrow killed this poor young woman the next year, who was never permitted to see her husband again. Strype, i. 391. The Earl of Hertford underwent a long imprisonment, and continued in obscurity during Elizabeth's reign; but had some public employments under her successor. He was twice afterwards married, and lived to a very advanced age, not dying till 1621, near sixty years after his ill-starred and ambitious love. It is worth while to read the epitaph on his monument in the S.E. aisle of Salisbury Cathedral, an affecting testimony to the purity and faithfulness of an attachment rendered still more sacred by misfortune and time. Quo desiderio veteres revocavit amores! I shall revert to the question of this marriage in a subsequent chapter. [191] Haynes, 396. [192] _Id._ 413; Strype, 410. Hales's treatise in favour of the authenticity of Henry's will is among the Harleian MSS. n. 537 and 555, and has also been printed in the Appendix to _Hereditary Right Asserted_, fol. 1713. [193] Camden, p. 416, ascribes the powerful coalition formed against him in 1569, wherein Norfolk and Leicester were combined with all the catholic peers, to his predilection for the house of Suffolk. But it was more probably owing to their knowledge of his integrity and attachment to his sovereign, which would steadfastly oppose their wicked design of bringing about Norfolk's marriage with Mary, as well as to their jealousy of his influence. Carte reports, on the authority of the despatches of Fenelon, the French ambassador, that they intended to bring him to account for breaking off the ancient league with the house of Burgundy, or, in other words, for maintaining the protestant interest. Vol. iii. p. 483. A papist writer, under the name of Andreas Philopater, gives an account of this confederacy against Cecil at some length. Norfolk and Leicester belonged to it; and the object was to defeat the Suffolk succession, which Cecil and Bacon favoured. Leicester betrayed his associates to the queen. It had been intended that Norfolk should accuse the two counsellors before the Lords, eâ ratione ut è senatu regiâque abreptos ad curiæ januas in crucem agi præciperet, eoque perfecto rectè deinceps ad forum progressus explicaret populo tum hujus facti rationem, tum successionis etiam regnandi legitimam seriem, si quid forte reginæ humanitus accideret. P. 43. [194] D'Ewes, 81. [195] Strype, 11, Append. This speech seems to have been made while Catherine Grey was living; perhaps therefore it was in a former parliament, for no account that I have seen represents her as having been alive so late as 1571. [196] There was something peculiar in Mary's mode of blazonry. She bore Scotland and England quarterly, the former being first; but over all was a half scutcheon of pretence with the arms of England, the sinister half being, as it were, obscured, in order to intimate that she was kept out of her right. Strype, vol. i. p. 8. The despatches of Throckmorton, the English ambassador in France, bear continual testimony to the insulting and hostile manner in which Francis II. and his queen displayed their pretensions to our crown. Forbes's _State Papers_, vol. i. _passim_. The following is an instance. At the entrance of the king and queen into Chatelherault, 23rd November 1559, these lines formed the inscription over one of the gates: "Gallia perpetuis pugnaxque Britannia bellis Olim odio inter se dimicuere pari. Nunc Gallos totoque remotos orbe Britannos Unum dos Mariæ cogit in imperium. Ergo pace potes, Francisce, quod omnibus armis Mille patres annis non potuere tui." This offensive behaviour of the French court is the apology of Elizabeth's intrigues during the same period with the malcontents, which to a certain extent cannot be denied by any one who has read the collection above quoted; though I do not think Dr. Lingard warranted in asserting her privity to the conspiracy of Amboise as a proved fact. Throckmorton was a man very likely to exceed his instructions; and there is much reason to believe that he did so. It is remarkable that no modern French writer that I have seen, Anquetil, Garnier, Lacretelle, or the editors of the _General Collection of Memoirs_, seem to have been aware of Elizabeth's secret intrigues with the king of Navarre and other protestant chiefs in 1559, which these letters, published by Forbes in 1740, demonstrate. [197] Burnet, i. Append. 266. Many letters, both of Mary herself and of her secretary, the famous Maitland of Lethington, occur in Haynes's _State Papers_, about the end of 1561. In one of his to Cecil, he urges, in answer to what had been alleged by the English court, that a collateral successor had never been declared in any prince's life-time, that whatever reason there might be for that, "if the succession had remained untouched according to the law, yet where by a limitation men had gone about to prevent the providence of God, and shift one into the place due to another, the offended party could not but seek the redress thereof."--P. 373. [198] A very remarkable letter of the Earl of Sussex, October 22, 1568, contains these words: "I think surely no end can be made good for England, except the person of the Scottish queen be detained, by one means or other, in England." The whole letter manifests the spirit of Elizabeth's advisers, and does no great credit to Sussex's sense of justice, but a great deal to his ability. Yet he afterwards became an advocate for the Duke of Norfolk's marriage with Mary. Lodge's _Illustrations_, vol. ii. p. 4. [199] Hume and Carte say, this first illness was the small-pox. But it appears by a letter from the queen to Lord Shrewsbury (Lodge, 279) that her attack in 1571 was suspected to be that disorder. [200] Haynes, 580. [201] In a conversation which Mary had with one Rooksby, a spy of Cecil's, about the spring of 1566, she imprudently named several of her friends, and of others whom she hoped to win, such as the Duke of Norfolk, the Earls of Derby, Northumberland, Westmoreland, Cumberland, Shrewsbury. "She had the better hope of this, for that she thought them to be all of the old religion, which she meant to restore again with all expedition, and thereby win the hearts of the common people." The whole passage is worth notice. Haynes, 447. See also Melvil's _Memoirs_, for the dispositions of an English party towards Mary in 1566. [202] Murden's _State Papers_, 134, 180. Norfolk was a very weak man, the dupe of some very cunning ones. We may observe that his submission, to the queen (_Id._ 153) is expressed in a style which would now be thought most pusillanimous in a man of much lower station, yet he died with great intrepidity. But such was the tone of those times; an exaggerated hypocrisy prevailed in everything. [203] _State Trials_, i. 957. He was interrogated by the queen's counsel with the most insidious questions. All the material evidence was read to the Lords from written depositions of witnesses who might have been called, contrary to the statute of Edward VI. But the _Burghley Papers_, published by Haynes and Murden, contain a mass of documents relative to this conspiracy, which leave no doubt as to the most heinous charge, that of inviting the Duke of Alva to invade the kingdom. There is reason to suspect that he feigned himself a catholic in order to secure Alva's assistance. Murden, p. 10. [204] The northern counties were at this time chiefly catholic. "There are not," says Sadler, writing from thence, "ten gentlemen in this country who do favour and allow of their majesty's proceedings in the cause of religion." Lingard, vii. 54. It was consequently the great resort of the priests from the Netherlands, and in the feeble state of the protestant church there wanted sufficient ministers to stand up in its defence. Strype, i. 509, _et post_; ii. 183. Many of the gentry indeed were still disaffected in other parts towards the new religion. A profession of conformity was required in 1569 from all justices of the peace, which some refused, and others made against their consciences. _Id._ i. 567. [205] Camden has quoted a long passage from Hieronymo Catena's _Life of Pius V._, published at Rome in 1588, which illustrates the evidence to the same effect contained in the _Burghley Papers_, and partly adduced on the Duke of Norfolk's trial. [206] Strype, i. 546, 553, 556. [207] _Id._ 578; Camden, 428; Lodge, ii. 45. [208] Strype, ii. 88; _Life of Smith_, 152. [209] Strype, i. 502. I do not give any credit whatever to this league, as printed in Strype, which seems to have been fabricated by some of the queen's emissaries. There had been, not perhaps a treaty, but a verbal agreement between France and Spain at Bayonne some time before; but its object was apparently confined to the suppression of protestantism in France and the Netherlands. Had they succeeded, however, in this, the next blow would have been struck at England. It seems very unlikely that Maximilian was concerned in such a league. [210] Strype, vol. ii. [211] The college of Douay for English refugee priests was established in 1568 or 1569. Lingard, 374. Strype seems, but I believe through inadvertence, to put this event several years later. _Annals_, ii. 630. It was dissolved by Requesens, while governor of Flanders, but revived at Rheims in 1575, under the protection of the cardinal of Lorrain, and returned to Douay in 1593. Similar colleges were founded at Rome in 1579, at Valladolid in 1589, at St. Omer in 1596, and at Louvain in 1606. [212] 13 Eliz. c. 1. This act was made at first retrospective, so as to affect every one who had at any time denied the queen's title. A member objected to this in debate as "a precedent most perilous." But Sir Francis Knollys, Mr. Norton, and others defended it. D'Ewes, 162. It seems to have been amended by the Lords. So little notion had men of observing the first principles of equity towards their enemies! There is much reason from the debate to suspect that the _ex post facto_ words were levelled at Mary. [213] Strype, ii. 133; D'Ewes, 207. [214] Strype, ii. 135. [215] _Life of Parker_, 354. [216] Strype's _Annals_, ii. 48. [217] Murden's _Papers_, p. 43, contain proofs of the increased discontent among the catholics in consequence of the penal laws. [218] Strype, ii. 330. See too in vol. iii. Appendix 68, a series of petitions intended to be offered to the queen and parliament, about 1583. These came from the puritanical mint, and show the dread that party entertained of Mary's succession, and of a relapse into popery. It is urged in these, that no toleration should be granted to the popish worship in private houses. Nor in fact had they much cause to complain that it was so. Knox's famous intolerance is well known. "One mass," he declared in preaching against Mary's private chapel at Holyrood House, "was more fearful unto him than if ten thousand armed enemies were landed in any part of the realm, on purpose to suppress the whole religion." M'Crie's _Life of Knox_, vol. ii. p. 24. In a conversation with Maitland he asserted most explicitly the duty of putting idolaters to death. _Id._ p. 120. Nothing can be more sanguinary than the reformer's spirit in this remarkable interview. St. Dominic could not have surpassed him. It is strange to see men, professing all the while our modern creed of charity and toleration, extol these sanguinary spirits of the sixteenth century. The English puritans, though I cannot cite any passages so strong as the foregoing, were much the bitterest enemies of the catholics. When we read a letter from any one, such as Mr. Topcliffe, very fierce against the latter, we may expect to find him put in a word in favour of silenced ministers. [219] D'Ewes, 161, 177. [220] Strype's _Life of Parker_, 354. [221] Strype's _Annals_, i. 582. Honest old Strype, who thinks church and state never in the wrong, calls this "a notable piece of favour." [222] _Id._ ii. 110, 408. [223] Strype's _Annals_, iii. 127. [224] _Life of Whitgift_, 83. See too p. 99, and _Annals of Reformation_, ii. 631, etc.; also Holingshed, ann. 1574, _ad init._ [225] An almost incredible specimen of ungracious behaviour towards a Roman catholic gentleman is mentioned in a letter of Topcliffe, a man whose daily occupation was to hunt out and molest men for popery. "The next good news, but in account the highest, her majesty hath served God with great zeal and comfortable examples; for by her council two notorious papists, young Rockwood, the master of Euston Hall, where her majesty did lie upon Sunday now a fortnight, and one Downes, a gentleman, were both committed, the one to the town prison at Norwich, the other to the country prison there, for obstinate papistry; and seven more gentlemen of worship were committed to several houses in Norwich as prisoners; two of the Lovels, another Downes, one Beningfield, one Parry, and two others not worth memory for badness of belief. "This Rockwood is a papist of kind [family] newly crept out of his late wardship. Her majesty, by some means I know not, was lodged at his house, Euston, far unmeet for her highness; nevertheless, the gentleman brought into her presence by like device, her majesty gave him ordinary thanks for his bad house, and her fair hand to kiss: but my lord chamberlain nobly and gravely understanding that Rockwood was excommunicated for papistry, called him before him, demanded of him how he durst presume to attempt her royal presence, he, unfit to accompany any Christian person; forthwith said he was fitter for a pair of stocks, commanded him out of the court, and yet to attend her council's pleasure at Norwich he was committed. And to dissyffer [sic] the gentleman to the full, a piece of plate being missed in the court, and searched for in his hay-house, in the hay-rick, such an image of our lady was there found, as for greatness, for gayness, and workmanship, I did never see a match; and after a sort of country dances ended, in her majesty's sight the idol was set behind the people who avoided; she rather seemed a beast raised upon a sudden from hell by conjuring, than the picture for whom it had been so often and so long abused. Her majesty commanded it to the fire, which in her sight by the country folks was quickly done to her content, and unspeakable joy of everyone but some one or two who had sucked of the idol's poisoned milk. "Shortly after, a great sort of good preachers, who had been long commanded to silence for a little niceness, were licensed, and again commanded to preach; a greater and more universal joy to the countries, and the most of the court, than the disgrace of the papists: and the gentlemen of those parts, being great and hot protestants, almost before by policy discredited and disgraced, were greatly countenanced. "I was so happy lately, amongst other good graces, that her majesty did tell me of sundry lewd papist beasts that have resorted to Buxton," etc. Lodge, ii. 188, 30 August 1578. This Topcliffe was the most implacable persecutor of his age. In a letter to Lord Burleigh (Strype, iv. 39), he urges him to imprison all the principal recusants, and especially women, "the farther off from their own family and friends the better." The whole letter is curious, as a specimen of the prevalent spirit, especially among the puritans, whom Topcliffe favoured. Instances of the ill-treatment experienced by respectable families (the Fitzherberts and Foljambes), and even aged ladies, without any other provocation than their recusancy, may be found in Lodge, ii. 372, 462; iii. 22. But those farthest removed from puritanism partook sometimes of the same tyrannous spirit. Aylmer, bishop of London, renowned for his persecution of nonconformists, is said by Rishton de Schismate, p. 319, to have sent a young catholic lady to be whipped in Bridewell for refusing to conform. If the authority is suspicious (and yet I do not perceive that Rishton is a liar like Sanders), the fact is rendered hardly improbable by Aylmer's harsh character. [226] Strype's _Life of Smith_, 171; _Annals_, ii. 631, 636; iii. 479; and Append. 170. The last reference is to a list of magistrates sent up by the bishops from each diocese, with their characters. Several of these, but the wives of many more, were inclined to popery. [227] Allen's _Admonition to the Nobility and People of England_, written in 1588, to promote the success of the Armada, is full of gross lies against the queen. See an analysis of it in Lingard, note B. B. Mr. Butler fully acknowledges, what indeed the whole tenor of historical documents for this reign confirms, that Allen and Persons were actively engaged in endeavouring to dethrone Elizabeth, by means of a Spanish force. But it must, I think, be candidly confessed by protestants, that they had very little influence over the superior catholic laity. And an argument may be drawn from hence against those who conceive the political conduct of catholics to be entirely swayed by their priests, when even in the sixteenth century the efforts of these able men, united with the head of their church, could produce so little effect. Strype owns that Allen's book gave offence to many catholics, iii. 560; _Life of Whitgift_, 505. One Wright of Douay answered a case of conscience, whether catholics might take up arms to assist the king of Spain against the queen, in the negative. _Id._ 251; _Annals_, 565. This man, though a known loyalist, and actually in the employment of the ministry, was afterwards kept in a disagreeable sort of confinement, in the Dean of Westminster's house, of which he complains with much reason. Birch's _Memoirs_, vol. ii. p. 71 _et alibi_. Though it does not fall within the province of a writer on the constitution to enlarge on Elizabeth's foreign policy, I must observe, in consequence of the laboured attempts of Dr. Lingard to represent it as perfectly Machiavelian, and without any motive but wanton malignity, that, with respect to France and Spain, and even Scotland, it was strictly defensive, and justified by the law of self-preservation; though, in some of the means employed, she did not always adhere more scrupulously to good faith than her enemies. [228] 23 Eliz. c. 1 and 29 Eliz. c. 6. [229] Strype's _Whitgift_, p. 117, and other authorities _passim_. [230] Camden, Lingard. Two others suffered at Tyburn not long afterwards for the same offence. Holingshed, 344. See in Butler's _Mem. of Catholics_, vol. iii. p. 382, an affecting narrative, from Dodd's _Church History_, of the sufferings of Mr. Tregian and his family, the gentleman whose chaplain Mayne had been. I see no cause to doubt its truth. [231] Ribadeneira, _Continuatio Sanderi et Rishtoni de Schismate Anglicano_, p. 111; Philopater, p. 247. This circumstance of Sherwood's age is not mentioned by Stowe; nor does Dr. Lingard advert to it. No woman was put to death under the penal code, so far as I remember; which of itself distinguishes the persecution from that of Mary, and of the house of Austria in Spain and the Netherlands. [232] Strype's _Parker_, 375. [233] Strype's _Annals_, ii. 644. [234] _State Trials_, i. 1050; from the _Phoenix Britannicus_. [235] _Id._ 1078; Butler's _English Catholics_, i. 184, 244; Lingard, vii. 182, whose remarks are just and candid. A tract, of which I have only seen an Italian translation, printed at Macerata in 1585, entitled "Historia del glorioso martirio di diciotto sacerdoti e un secolare, fatti morire in Inghilterra per la confessione e difensione della fede cattolica," by no means asserts that he acknowledged Elizabeth to be queen _de jure_, but rather that he refused to give an opinion as to her right. He prayed, however, for her as a queen. "Io ho pregato, e prego per lei. All' ora il Signor Howardo li domandò per qual regina egli pregasse, se per Elisabetta? Al quale rispose, Si, per Elisabetta." Mr. Butler quotes this tract in English. The trials and deaths of Campian and his associates are told in the continuation of Holingshed, with a savageness and bigotry which, I am very sure, no scribe for the Inquisition could have surpassed. P. 456. But it is plain, even from this account, that Campian owned Elizabeth as queen. See particularly p. 488, for the insulting manner in which this writer describes the pious fortitude of these butchered ecclesiastics. [236] Strype, ii. 637; Butler's _Eng. Catholics_, i. 196. The Earl of Southampton asked Mary's ambassador, Bishop Lesley, whether, after the bull, he could in conscience obey Elizabeth. Lesley answered, that as long as she was the stronger he ought to obey her. Murden, p. 30. The writer quoted before by the name of Andreas Philopater (Persons, translated by Cresswell, according to Mr. Butler, vol. iii. p. 236), after justifying at length the resistance of the League to Henry IV., adds the following remarkable paragraph: "Hinc etiam infert universa theologorum et jurisconsultorum schola, et est certum et de fide, quemcunque principem christianum, si a religione catholicâ manifestè deflexerit, et alios avocare voluerit, excidere statim omni potestate et dignitate, ex ipsâ vi juris tum divini tum humani, hocque ante omnem sententiam supremi pastoris ac judicis contra ipsum prolatam; et subditos quoscunque liberos esse ab omni juramenti obligatione, quod ei de obedientiâ tanquam principi legitimo præstitissent, posseque et debere (si vires habeant) istiusmodi hominem, tanquam apostatam, hæreticum, ac Christi domini desertorem, et inimicum reipublicæ suæ, hostemque ex hominum christianorum dominatu ejicere, ne alios inficiat, vel suo exemplo aut imperio a fide avertat."--P. 149. He quotes four authorities for this in the margin, from the works of divines or canonists. This broad duty, however, of expelling a heretic sovereign, he qualifies by two conditions; first, that the subjects should have the power, "ut vires habeant idoneas ad hoc subditi;" secondly, that the heresy be undeniable. There can, in truth, be no doubt that the allegiance professed to the queen by the seminary priests and jesuits, and, as far as their influence extended, by all catholics, was with this reservation--till they should be strong enough to throw it off. See the same tract, p. 229. But after all, when we come fairly to consider it, is not this the case with every disaffected party in every state? a good reason for watchfulness, but none for extermination. [237] Rishton and Ribadeneira. See in Lingard, note U, a specification of the different kinds of torture used in this reign. The government did not pretend to deny the employment of torture. But the puritans, eager as they were to exert the utmost severity of the law against the professors of the old religion, had more regard to civil liberty than to approve such a violation of it. Beal, clerk of the council, wrote, about 1585, a vehement book against the ecclesiastical system, from which Whitgift picks out various enormous propositions, as he thinks them; one of which is, "that he condemns, without exception of any cause, racking of grievous offenders, as being cruel, barbarous, contrary to law, and unto the liberty of English subjects." Strype's _Whitgift_, p. 212. [238] The persecution of catholics in England was made use of as an argument against permitting Henry IV. to reign in France, as appears by the title of a tract published in 1586: "Advertissement des catholiques, Anglois aux François catholiques, du danger où ils sont de perdre leur religion et d'expérimenter, comme en Angleterre, la cruauté des ministres, s'ils reçoivent à la couronne un roy qui soit hérétique." It is in the British Museum. One of the attacks on Elizabeth deserves some notice, as it has lately been revived. In the statute 13 Eliz. an expression is used, "her majesty, and the natural issue of her body," instead of the more common legal phrase, "lawful issue." This probably was adopted by the queen out of prudery, as if the usual term implied the possibility of her having unlawful issue. But the papistical libellers put the most absurd interpretation on the word "natural," as if it was meant to secure the succession for some imaginary bastards by Leicester. And Dr. Lingard is not ashamed to insinuate the same suspicion. Vol. viii. p. 81, note. Surely what was congenial to the dark malignity of Persons, and the blind frenzy of Whitaker, does not become the good sense, I cannot say the candour, of this writer. It is true that some, not prejudiced against Elizabeth, have doubted whether "Cupid's fiery dart" was as effectually "quenched in the chaste beams of the watery moon," as her poet intimates. This I must leave to the reader's judgment. She certainly went strange lengths of indelicacy. But, if she might sacrifice herself to the queen of Cnidus and Paphos, she was unmercifully severe to those about her, of both sexes, who showed any inclination to that worship, though under the escort of Hymen. Miss Aikin, in her well written and interesting _Memoirs of the Court of Elizabeth_, has collected several instances from Harrington and Birch. It is by no means true, as Dr. Lingard asserts, on the authority of one Faunt, an austere puritan, that her court was dissolute, comparatively at least with the general character of courts; though neither was it so virtuous as the enthusiasts of the Elizabethan period suppose. [239] _Somers Tracts_, i 189; Strype, iii. 205, 265, 480. Strype says that he had seen the manuscript of this tract in Lord Burleigh's handwriting. It was answered by Cardinal Allen, to whom a reply was made by poor Stubbe, after he had lost his right hand. An Italian translation of the _Execution of Justice_ was published at London in 1584. This shows how anxious the queen was to repel the charges of cruelty, which she must have felt to be not wholly unfounded. [240] _Somers Tracts_, p. 209. [241] _State Trials_, i. 1160. [242] _Somers Tracts_, 164. [243] Strype, iii. 298. Shelley, though notoriously loyal and frequently employed by Burleigh, was taken up and examined before the council for preparing this petition. [244] P. 591. Proofs of the text are too numerous for quotation, and occur continually to a reader of Strype's 2nd and 3rd volumes. In vol. iii. Append. 158, we have a letter to the queen from one Antony Tyrrel, a priest, who seems to have acted as an informer, wherein he declares all his accusations of catholics to be false. This man had formerly professed himself a protestant, and returned afterwards to the same religion; so that his veracity may be dubious. So, a little further on, we find in the same collection (p. 250) a letter from one Bennet, a priest, to Lord Arundel, lamenting the false accusations he had given against him, and craving pardon. It is always possible, as I have just hinted, that these retractations may be more false than the charges. But ministers who employ spies, without the utmost distrust of their information, are sure to become their dupes, and end by the most violent injustice and tyranny. [245] The rich catholics compounded for their recusancy by annual payments, which were of some consideration in the queen's rather scanty revenue. A list of such recusants, and of the annual fines paid by them in 1594, is published in Strype, iv. 197, but is plainly very imperfect. The total was £3323 1_s_. 10_d_. A few paid as much as £140 per annum. The average seems, however, to have been about £20. Vol. iii. Append. 153; see also p. 258. Probably these compositions, though oppressive, were not quite so serious as the catholics pretended. [246] Parry seems to have been privately reconciled to the church of Rome about 1580; after which he continued to correspond with Cecil, but generally recommending some catholics to mercy. He says, in one letter, that a book printed at Rome, _De Persecutione Anglicanâ_, had raised a barbarous opinion of our cruelty; and that he could wish that in those cases it might please her majesty to pardon the dismembering and drawing. Strype, iii. 260. He sat afterwards in the parliament of 1584, taking, of course, the oath of supremacy, where he alone opposed the act against catholic priests. _Parl. Hist._ 822. Whether he were actually guilty of plotting against the queen's life (for this part of his treason he denied at the scaffold) I cannot say; but his speech there made contained some very good advice to her. The ministry garbled this before its publication in Holingshed and other books; but Strype has preserved a genuine copy. Vol. iii. Append. 102. It is plain that Parry died a catholic; though some late writers of that communion have tried to disclaim him. Dr. Lingard, it may be added, admits that there were many schemes to assassinate Elizabeth, though he will not confess any particular instance. "There exist," he says, "in the archives at Simancas several notices of such offers."--P. 384. [247] It might be inferred from some authorities that the catholics had become in a great degree disaffected to the queen about 1584, in consequence of the extreme rigour practised against them. In a memoir of one Crichton, a Scots jesuit, intended to show the easiness of invading England, he says, that "all the catholics without exception favour the enterprise, first, for the sake of the restitution of the catholic faith; secondly, for the right and interest which the Queen of Scots has to the kingdom, and to deliver her out of prison; thirdly, for the great trouble and misery they endure more and more, being kept out of all employments, and dishonoured in their own countries, and treated with great injustice and partiality when they have need to recur to law; and also for the execution of the laws touching the confiscation of their goods in such sort as in so short time would reduce the catholics to extreme poverty." Strype, iii. 415. And in the report of the Earl of Northumberland's treasons, laid before the star-chamber, we read that "Throckmorton said, that the bottom of this enterprise, which was not to be known to many, was, that if a toleration of religion might not be obtained without alteration of the government, that then the government should be altered, and the queen removed." _Somers Tracts_, vol. i. p. 206. Further proofs that the rigour used towards the catholics was the great means of promoting Philip's designs occur in Birch's _Memoirs of Elizabeth_, i. 82 _et alibi_. We have also a letter from Persons in England to Allen in 1586, giving a good account of the zeal of the catholics, though a very bad one of their condition through severe imprisonment and other ill-treatment. Strype, iii. 412, and Append. 151. Rishton and Ribadeneira bear testimony that the persecution had rendered the laity more zealous and sincere. De Schismate, l. iii. 320, and l. iv. 53. Yet to all this we may oppose their good conduct in the year of the Spanish Armada, and in general during the queen's reign; which proves that the loyalty of the main body was more firm than their leaders wished, or their enemies believed. However, if any of my readers should incline to suspect that there was more disposition among this part of the community to throw off their allegiance to the queen altogether than I have admitted, he may possibly be in the right; and I shall not impugn his opinion, provided he concurs in attributing the whole, or nearly the whole, of this disaffection to her unjust aggressions on the liberty of conscience. [248] _State Trials_, i. 1162. [249] 27 Eliz. c. i. [250] In Murden's _State Papers_ we have abundant evidence of Mary's acquaintance with the plots going forward in 1585 and 1586 against Elizabeth's government, if not with those for her assassination. But Thomas Morgan, one of the most active conspirators, writes to her, 9th July, 1586: "There be some good members that attend opportunity to do the Queen of England a piece of service, which I trust will quiet many things, if it shall please God to lay his assistance to the cause, for the which I pray daily."--P. 530. In her answer to this letter, she does not advert to this hint, but mentions Babington as in correspondence with her. At her trial she denied all communication with him. [251] It may probably be answered to this, that if the letter signed by Walsingham as well as Davison to Sir Amias Paulet, urging him "to find out some way to shorten the life of the Scots queen," be genuine, which cannot perhaps be justly questioned (though it is so in the _Biog. Brit._ art. WALSINGHAM, note O), it will be difficult to give him credit for any scrupulousness with respect to Mary. But, without entirely justifying this letter, it is proper to remark, what the Marian party choose to overlook, that it was written after the sentence, during the queen's odious scenes of grimace, when some might argue, though erroneously, that, a legal trial having passed, the formal method of putting the prisoner to death might in so peculiar a case, be dispensed with. This was Elizabeth's own wish, in order to save her reputation, and enable her to throw the obloquy on her servants; which by Paulet's prudence and honour in refusing to obey her by privately murdering his prisoner, she was reduced to do in a very bungling and scandalous manner. [252] Questions were put to civilians by the queen's order in 1570, concerning the extent of Lesley, Bishop of Ross's privilege, as Mary's ambassador. _Murden Papers_, p. 18; _Somers Tracts_, i. 186. They answered, first, that an ambassador that raises rebellion against the prince to whom he is sent, by the law of nations, and the civil law of the Romans, has forfeited the privileges of an ambassador, and is liable to punishment: secondly, that if a prince be lawfully deposed from his public authority, and another substituted in his stead, the agent of such a prince cannot challenge the privileges of an ambassador; since none but absolute princes, and such as enjoy a royal prerogative, can constitute ambassadors. These questions are so far curious, that they show the _jus gentium_ to have been already reckoned in matter of science, in which a particular class of lawyers was conversant. [253] Strype, 360, 362. Civilians were consulted about the legality of trying Mary. _Idem_, Append. 138. [254] Butler's _English Catholics_, i. 259; Hume. This is strongly confirmed by a letter printed not long after, and republished in the Harleian _Miscellany_, vol. i. p. 142, with the name of one Leigh, a seminary priest, but probably the work of some protestant. He says, "for contributions of money, and for all other warlike actions, there was no difference between the catholic and the heretic. But in this case [of the Armada] to withstand the threatened conquest, yea, to defend the person of the queen, there appeared such a sympathy, concourse, and consent of all sorts of persons, without respect of religion, as they all appeared to be ready to fight against all strangers as it were with one heart and one body." Notwithstanding this, I am far from thinking that it would have been safe to place the catholics, generally speaking, in command. Sir William Stanley's recent treachery in giving up Deventer to the Spaniards made it unreasonable for them to complain of exclusion from trust. Nor do I know that they did so. But trust and toleration are two different things. And even with respect to the former, I believe it far better to leave the matter in the hands of the executive government, which will not readily suffer itself to be betrayed, than to proscribe, as we have done, whole bodies by a legislative exclusion. Whenever, indeed, the government itself is not to be trusted, there arises a new condition of the problem. [255] Strype, vols. iii. and iv. _passim_; _Life of Whitgift_, 401, 505; Murden, 667; Birch's _Memoirs of Elizabeth_, Lingard, etc. One hundred and ten catholics suffered death between 1588 and 1603. Lingard, 513. [256] 33 Eliz. c. 2. [257] Camden, 566; Strype, iv. 56. This was the declaration of October 1591, which Andreas Philopater answered. Ribadeneira also inveighs against it. According to them, its publication was delayed till after the death of Hatton, when the persecuting part of the queen's council gained the ascendency. [258] Butler, 178. In Coke's famous speech in opening the case of the Powder-plot, he says that not more than thirty priests and five receivers had been executed in the whole of the queen's reign, and for religion not any one. _State Trials_, ii. 179. Dr. Lingard says of those who were executed between 1588, and the queen's death, "The butchery, with a few exceptions, was performed on the victim while he was in full possession of his senses." Vol. viii. p. 356. I should be glad to think that the few exceptions were the other way. Much would depend on the humanity of the sheriff, which one might hope to be stronger in an English gentleman than his zeal against popery. But I cannot help acknowledging that there is reason to believe the disgusting cruelties of the legal sentence to have been frequently inflicted. In an anonymous memorial among Lord Burleigh's papers, written about 1586, it is recommended that priests persisting in their treasonable opinion should be hanged, "and the manner of drawing and quartering forborne." Strype, iii. 620. This seems to imply that it had been usually practised on the living. And Lord Bacon, in his observations on a libel written against Lord Burleigh in 1592, does not deny the "bowellings" of catholics; but makes a sort of apology for it, as "less cruel than the wheel or forcipation, or even simple burning." Bacon's Works, vol. i. p. 534. [259] Burnet, ii. 418. [260] "Though no papists were in this reign put to death purely on account of their religion, as numberless protestants had been in the woeful days of Queen Mary, yet many were executed for treason." Churton's _Life of Nowell_, p. 147. Mr. Southey, whose abandonment of the oppressed side I sincerely regret, holds the same language; and a later writer, Mr. Townsend, in his _Accusations of History against the Church of Rome_, has laboured to defend the capital, as well as other, punishments of catholics under Elizabeth, on the same pretence of their treason. Treason, by the law of England, and according to the common use of language, is the crime of rebellion or conspiracy against the government. If a statute is made, by which the celebration of certain religious rites is subjected to the same penalties as rebellion or conspiracy, would any man, free from prejudice, and not designing to impose upon the uninformed, speak of persons convicted on such a statute as guilty of treason, without expressing in what sense he uses the words, or deny that they were as truly punished for their religion, as if they had been convicted of heresy? A man is punished for religion, when he incurs a penalty for its profession or exercise, to which he was not liable on any other account. This is applicable to the great majority of capital convictions on this score under Elizabeth. The persons convicted could not be traitors in any fair sense of the word, because they were not charged with anything properly denominated treason. It certainly appears that Campian and some other priests about the same time were indicted on the statute of Edward III. for compassing the queen's death, or intending to depose her. But the only evidence, so far as we know or have reason to suspect, that could be brought against them, was their own admission, at least by refusing to abjure it, of the pope's power to depose heretical princes. I suppose it is unnecessary to prove that, without some overt act to show a design of acting upon this principle, it could not fall within the statute. [261] Watson's _Quodlibets_. True relation of the faction begun at Wisbech, 1601. These tracts contain rather an uninteresting account of the squabbles in Wisbech castle among the prisoners, but cast heavy reproaches on the jesuits, as the "firebrands of all sedition, seeking by right or wrong simply or absolutely the monarchy of all England, enemies to all secular priests, and the causes of all the discord in the English nation."--P. 74. I have seen several other pamphlets of the time relating to this difference. Some account of it may be found in Camden, 648, and Strype, iv. 194, as well as in the catholic historians, Dodd and Lingard. [262] Rymer, xv. 473, 488. [263] Butler's _Engl. Catholics_, p. 261. [264] Ribadeneira says, that Hatton, "animo Catholicus, nihil perinde quam innocentem illorum sanguinem adeo crudeliter perfundi dolebat." He prevented Cecil from promulgating a more atrocious edict than any other, which was published after his death in 1591. _De Schismate Anglic._ c. 9. This must have been the proclamation of 29th Nov. 1591, forbidding all persons to harbour any one, of whose conformity they should not be well assured. [265] Birch, i. 84. CHAPTER IV ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT NONCONFORMISTS The two statutes enacted in the first year of Elizabeth, commonly called the Acts of Supremacy and Uniformity, are the main links of the Anglican church with the temporal constitution, and establish the subordination and dependency of the former; the first abrogating all jurisdiction and legislative power of ecclesiastical rulers, except under the authority of the Crown; and the second prohibiting all changes of rites and discipline without the approbation of parliament. It was the constant policy of this queen to maintain her ecclesiastical prerogative and the laws she had enacted. But in following up this principle she found herself involved in many troubles, and had to contend with a religious party, quite opposite to the Romish, less dangerous indeed and inimical to her government, but full as vexatious and determined. _Origin of the differences among the English protestants._--I have in another place slightly mentioned the differences that began to spring up under Edward VI. between the moderate reformers who established the new Anglican church, and those who accused them of proceeding with too much forbearance in casting off superstitions and abuses. These diversities of opinion were not without some relation to those which distinguished the two great families of protestantism in Europe. Luther, intent on his own system of dogmatic theology, had shown much indifference about retrenching exterior ceremonies, and had even favoured, especially in the first years of his preaching, that specious worship which some ardent reformers were eager to reduce to simplicity.[266] Crucifixes and images, tapers and priestly vestments, even for a time the elevation of the host and the Latin mass-book, continued in the Lutheran churches; while the disciples of Zuingle and Calvin were carefully eradicating them as popish idolatry and superstition. Cranmer and Ridley, the founders of the English reformation, justly deeming themselves independent of any foreign master, adopted a middle course between the Lutheran and Calvinistic ritual. The general tendency however of protestants, even in the reign of Edward VI., was towards the simpler forms; whether through the influence of those foreign divines who co-operated in our reformation, or because it was natural in the heat of religious animosity to recede as far as possible, especially in such exterior distinctions, from the opposite denomination. The death of Edward seems to have prevented a further approach to the scheme of Geneva in our ceremonies, and perhaps in our discipline. During the persecution of Mary's reign, the most eminent protestant clergymen took refuge in various cities of Germany and Switzerland. They were received by the Calvinists with hospitality and fraternal kindness; while the Lutheran divines, a narrow-minded intolerant faction, both neglected and insulted them.[267] Divisions soon arose among themselves about the use of the English service, in which a pretty considerable party was disposed to make alterations. The chief scene of these disturbances was Frankfort, where Knox, the famous reformer of Scotland, headed the innovators; while Cox, an eminent divine, much concerned in the establishment of Edward VI., and afterwards Bishop of Ely, stood up for the original liturgy. Cox succeeded (not quite fairly, if we may rely on the only narrative we possess) in driving his opponents from the city; but these disagreements were by no means healed, when the accession of Elizabeth recalled both parties to their own country, neither of them very likely to display more mutual charity in their prosperous hour, than they had been able to exercise in a common persecution.[268] _Religious inclinations of the queen._--The first mortification these exiles endured on their return was to find a more dilatory advance towards public reformation of religion, and more of what they deemed lukewarmness, than their sanguine zeal had anticipated. Most part of this delay was owing to the greater prudence of the queen's counsellors, who felt the pulse of the nation before they ventured on such essential changes. But there was yet another obstacle, on which the reformers had not reckoned. Elizabeth, though resolute against submitting to the papal supremacy, was not so averse to all the tenets abjured by protestants, and loved also a more splendid worship than had prevailed in her brother's reign; while many of those returned from the continent were intent on copying a still simpler model. She reproved a divine who preached against the real presence, and is even said to have used prayers to the Virgin.[269] But her great struggle with the reformers was about images, and particularly the crucifix, which she retained, with lighted tapers before it, in her chapel; though in the injunctions to the ecclesiastical visitors of 1559, they are directed to have them taken away from churches.[270] This concession she must have made very reluctantly, for we find proofs the next year of her inclination to restore them; and the question of their lawfulness was debated, as Jewel writes word to Peter Martyr, by himself and Grindal on one side, against Parker and Cox, who had been persuaded to argue in their favour.[271] But the strenuous opposition of men so distinguished as Jewel, Sandys, and Grindal, of whom the first declared his intention of resigning his bishopric in case this return towards superstition should be made, compelled Elizabeth to relinquish her project.[272] The crucifix was even for a time removed from her own chapel, but replaced about 1570.[273] There was however one other subject of dispute between the old and new religions, upon which her majesty could not be brought to adopt the protestant side of the question. This was the marriage of the clergy, to which she expressed so great an aversion, that she would never consent to repeal the statute of her sister's reign against it.[274] Accordingly, the bishops and clergy, though they married by connivance, or rather by an ungracious permission,[275] saw, with very just dissatisfaction, their children treated by the law as the offspring of concubinage.[276] This continued, in legal strictness, till the first year of James, when the statute of Mary was explicitly repealed; though I cannot help suspecting that clerical marriages had been tacitly recognised, even in courts of justice, long before that time. Yet it appears less probable to derive Elizabeth's prejudice in this respect from any deference to the Roman discipline, than from that strange dislike to the most lawful union between the sexes, which formed one of the singularities of her character. Such a reluctance as the queen displayed to return in every point even to the system established under Edward, was no slight disappointment to those who thought that too little had been effected by it. They had beheld at Zurich and Geneva the simplest, and, as they conceived, the purest form of worship. They were persuaded that the vestments still worn by the clergy, as in the days of popery, though in themselves indifferent, led to erroneous notions among the people, and kept alive a recollection of former superstitions, which would render their return to them more easy in the event of another political revolution.[277] They disliked some other ceremonies for the same reason. These objections were by no means confined, as is perpetually insinuated, to a few discontented persons. Except Archbishop Parker, who had remained in England during the late reign, and Cox, Bishop of Ely, who had taken a strong part at Frankfort against innovation, all the most eminent churchmen, such as Jewel, Grindal, Sandys, Nowell, were in favour of leaving off the surplice and what were called the popish ceremonies.[278] Whether their objections are to be deemed narrow and frivolous or otherwise, it is inconsistent with veracity to dissemble that the queen alone was the cause of retaining those observances, to which the great separation from the Anglican establishment is ascribed. Had her influence been withdrawn, surplices and square caps would have lost their steadiest friend; and several other little accommodations to the prevalent dispositions of protestants would have taken place. Of this it seems impossible to doubt, when we read the proceedings of the convocation in 1562, when a proposition to abolish most of the usages deemed objectionable was lost only by a vote, the numbers being 59 to 58.[279] In thus restraining the ardent zeal of reformation, Elizabeth may not have been guided merely by her own prejudices, without far higher motives of prudence and even of equity. It is difficult to pronounce in what proportion the two conflicting religions were blended on her coming to the throne. The reformed occupied most large towns, and were no doubt a more active and powerful body than their opponents. Nor did the ecclesiastical visitors of 1559 complain of any resistance, or even unwillingness, among the people.[280] Still the Romish party was extremely numerous; it comprehended the far greater portion of the beneficed clergy, and all those who, having no turn for controversy, clung with pious reverence to the rites and worship of their earliest associations. It might be thought perhaps not very repugnant to wisdom or to charity, that such persons should be won over to the reformed faith by retaining a few indifferent usages, which gratified their eyes, and took off the impression, so unpleasing to simple minds, of religious innovation. It might be urged that, should even somewhat more of superstition remain awhile than rational men would approve, the mischief would be far less than to drive the people back into the arms of popery, or to expose them to the natural consequences of destroying at once all old landmarks of reverence,--a dangerous fanaticism, or a careless irreligion. I know not in what degree these considerations had weight with Elizabeth; but they were such as it well became her to entertain. We live however too far from the period of her accession, to pass an unqualified decision on the course of policy which it was best for the queen to pursue. The difficulties of effecting a compromise between two intolerant and exclusive sects were perhaps insuperable. In maintaining or altering a religious establishment, it may be reckoned the general duty of governments to respect the wishes of the majority. But it is also a rule of human policy to favour the more efficient and determined, which may not always be the more numerous party. I am far from being convinced that it would not have been practicable, by receding a little from that uniformity which governors delight to prescribe, to have palliated in a great measure, if not put an end for a time, to the discontent that so soon endangered the new establishment. The frivolous usages, to which so many frivolous objections were raised, such as the tippet and surplice, the sign of the cross in baptism, the ring in matrimony, the posture of kneeling at the communion, might have been left to private discretion, not possibly without some inconvenience, but with less, as I conceive, than resulted from rendering their observance indispensable. Nor should we allow ourselves to be turned aside by the common reply, that no concessions of this kind would have ultimately prevented the disunion of the church upon more essential differences than these litigated ceremonies; since the science of policy, like that of medicine, must content itself with devising remedies for immediate danger, and can at best only retard the progress of that intrinsic decay which seems to be the law of all things human, and through which every institution of man, like his earthly frame, must one day crumble into ruin. _Unwillingness to comply with the established ceremonies._--The repugnance felt by a large part of the protestant clergy to the ceremonies with which Elizabeth would not consent to dispense, showed itself in irregular transgressions of the uniformity prescribed by statute. Some continued to wear the habits, others laid them aside; the communicants received the sacrament sitting, or standing, or kneeling, according to the minister's taste; some baptized in the font, others in a basin; some with the sign of the cross, others without it. The people in London and other towns, siding chiefly with the malcontents, insulted such of the clergy as observed the prescribed order.[281] Many of the bishops readily connived at deviations from ceremonies which they disapproved. Some, who felt little objection to their use, were against imposing them as necessary.[282] And this opinion, which led to very momentous inferences, began so much to prevail, that we soon find the objections to conformity more grounded on the unlawfulness of compulsory regulations in the church prescribed by the civil power, than on any special impropriety in the usages themselves. But this principle, which perhaps the scrupulous party did not yet very fully avow, was altogether incompatible with the supremacy vested in the queen, of which fairest flower of her prerogative she was abundantly tenacious. One thing was evident, that the puritan malcontents were growing every day more numerous, more determined, and more likely to win over the generality of those who sincerely favoured the protestant cause. There were but two lines to be taken; either to relax and modify the regulations which gave offence, or to enforce a more punctual observation of them. It seems to me far more probable that the former course would have prevented a great deal of that mischief which the second manifestly aggravated. For in this early stage the advocates of a simpler ritual had by no means assumed the shape of an embodied faction, whom concessions, it must be owned, are not apt to satisfy, but numbered the most learned and distinguished portion of the hierarchy. Parker stood nearly alone on the other side, but alone more than an equipoise in the balance, through his high station, his judgment in matters of policy, and his knowledge of the queen's disposition. He had possibly reason to apprehend that Elizabeth, irritated by the prevalent humour for alteration, might burst entirely away from the protestant side, or stretch her supremacy to reduce the church into a slavish subjection to her caprice.[283] This might induce a man of his sagacity, who took a far wider view of civil affairs than his brethren, to exert himself according to her peremptory command for universal conformity. But it is not easy to reconcile the whole of his conduct to this supposition; and in the copious memorials of Strype, we find the archbishop rather exciting the queen to rigorous measures against the puritans than standing in need of her admonition.[284] _Conformity enforced by the archbishop against the disposition of others._--The unsettled state of exterior religion which has been mentioned lasted till 1565. In the beginning of that year a determination was taken by the queen, or rather perhaps the archbishop, to put a stop to all irregularities in the public service. He set forth a book called _Advertisements_, containing orders and regulations for the discipline of the clergy. This modest title was taken in consequence of the queen's withholding her sanction of its appearance through Leicester's influence.[285] The primate's next step was to summon before the ecclesiastical commission Sampson, Dean of Christchurch, and Humphrey, President of Magdalen College, Oxford, men of signal non-conformity, but at the same time of such eminent reputation that, when the law took its course against them, no other offender could hope for indulgence. On refusing to wear the customary habits, Sampson was deprived of his deanery; but the other seems to have been tolerated.[286] This instance of severity, as commonly happens, rather irritated than intimidated the puritan clergy, aware of their numbers, their popularity, and their powerful friends, but above all sustained by their own sincerity and earnestness. Parker had taken his resolution to proceed in the vigorous course he had begun. He obtained from the queen a proclamation, peremptorily requiring conformity in the use of the clerical vestments and other matters of discipline. The London ministers, summoned before himself and their bishop, Grindal, who did not very willingly co-operate with his metropolitan, were called upon for a promise to comply with the legal ceremonies, which thirty-seven out of ninety-eight refused to make. They were in consequence suspended from their ministry, and their livings put in sequestration. But these unfortunately, as was the case in all this reign, were the most conspicuous, both for their general character and for their talent in preaching.[287] Whatever deviations from uniformity existed within the pale of the Anglican church, no attempt had hitherto been made to form separate assemblies; nor could it be deemed necessary, while so much indulgence had been conceded to the scrupulous clergy. But they were now reduced to determine whether the imposition of those rites they disliked would justify, or render necessary, an abandonment of their ministry. The bishops of that school had so far overcome their repugnance, as not only to observe the ceremonies of the church, but, in some instances, to employ compulsion towards others.[288] A more unexceptionable, because more disinterested, judgment was pronounced by some of the Swiss reformers to whom our own paid great respect--Beza, Gualter, and Bullinger; who, while they regretted the continuance of a few superfluous rites, and still more the severity used towards good men, dissuaded their friends from deserting their vocation on that account. Several of the most respectable opponents of the ceremonies were equally adverse to any open schism.[289] But the animosities springing from heated zeal, and the smart of what seemed oppression, would not suffer the English puritans generally to acquiesce in such temperate counsels. They began to form separate conventicles in London, not ostentatiously indeed, but of course without the possibility of eluding notice. It was doubtless worthy of much consideration, whether an established church-government could wink at the systematic disregard of its discipline by those who were subject to its jurisdiction and partook of its revenues. And yet there were many important considerations derived from the posture of religion and of the state, which might induce cool-headed men to doubt the expediency of too much straightening the reins. But there are few, I trust, who can hesitate to admit that the puritan clergy, after being excluded from their benefices, might still claim from a just government a peaceful toleration of their particular worship. This it was vain to expect from the queen's arbitrary spirit, the imperious humour of Parker, and that total disregard of the rights of conscience which was common to all parties in the sixteenth century. The first instance of actual punishment inflicted on protestant dissenters was in June 1567, when a company of more than one hundred were seized during their religious exercises at Plummer's Hall, which they had hired on pretence of a wedding, and fourteen or fifteen of them were sent to prison.[290] They behaved on their examination with a rudeness as well as self-sufficiency, that had already begun to characterise the puritan faction. But this cannot excuse the fatal error of molesting men for the exercise of their own religion. These coercive proceedings of the archbishop were feebly seconded, or directly thwarted, by most leading men both in church and state. Grindal and Sandys, successively Bishops of London and Archbishops of York, were naturally reckoned at this time somewhat favourable to the non-conforming ministers, whose scruples they had partaken. Parkhurst and Pilkington, Bishops of Norwich and Durham, were openly on their side.[291] They had still more effectual support in the queen's council. The Earl of Leicester, who possessed more power than any one to sway her wavering and capricious temper, the Earls of Bedford, Huntingdon, and Warwick, regarded as the steadiest protestants among the aristocracy, the wise and grave Lord Keeper Bacon, the sagacious Walsingham, the experienced Sadler, the zealous Knollys, considered these objects of Parker's severity, either as demanding a purer worship than had been established in the church, or at least as worthy by their virtues and services of more indulgent treatment.[292] Cecil himself, though on intimate terms with the archbishop, and concurring generally in his measures, was not far removed from the latter way of thinking, if his natural caution and extreme dread at this juncture of losing the queen's favour had permitted him more unequivocally to express it. Those whose judgment did not incline them towards the puritan notions, respected the scruples of men in whom the reformed religion could so implicitly confide. They had regard also to the condition of the church. The far greater part of its benefices were supplied by conformists of very doubtful sincerity, who would resume their mass-books with more alacrity than they had cast them aside.[293] Such a deficiency of protestant clergy had been experienced at the queen's accession, that for several years it was a common practice to appoint laymen, usually mechanics, to read the service in vacant churches.[294] These were not always wholly illiterate; or if they were, it was no more than might be said of the popish clergy, the vast majority of whom were destitute of all useful knowledge, and could read little Latin.[295] Of the two universities, Oxford had become so strongly attached to the Romish side during the late reign, that, after the desertion or expulsion of the most zealous of that party had almost emptied several colleges, it still for many years abounded with adherents to the old religion.[296] But at Cambridge, which had been equally popish at the queen's accession, the opposite faction soon acquired the ascendant. The younger students, imbibing ardently the new creed of ecclesiastical liberty, and excited by puritan sermons, began to throw off their surplices, and to commit other breaches of discipline, from which it might be inferred that the generation to come would not be less apt for innovation than the present.[297] _A more determined opposition, about 1570, led by Cartwright._--The first period in the history of puritanism includes the time from the queen's accession to 1570, during which the retention of superstitious ceremonies in the church had been the sole avowed ground of complaint. But when these obnoxious rites came to be enforced with unsparing rigour, and even those who voluntarily renounced the temporal advantages of the establishment were hunted from their private conventicles, they began to consider the national system of ecclesiastical regimen as itself in fault, and to transfer to the institution of episcopacy that dislike they felt for some of the prelates. The ostensible founder of this new school (though probably its tenets were by no means new to many of the sect) was Thomas Cartwright, the Lady Margaret's professor of divinity at Cambridge. He began about 1570 to inculcate the unlawfulness of any form of church-government, except what the apostles had instituted, namely, the presbyterian. A deserved reputation for virtue, learning, and acuteness, an ardent zeal, an inflexible self-confidence, a vigorous, rude, and arrogant style, marked him as the formidable leader of a religious faction.[298] In 1572 he published his celebrated _Admonition to the Parliament_, calling on that assembly to reform the various abuses subsisting in the church. In this treatise, such a hardy spirit of innovation was displayed, and schemes of ecclesiastical policy so novel and extraordinary were developed, that it made a most important epoch in the contest, and rendered its termination far more improbable. The hour for liberal concessions had been suffered to pass away; the archbishops' intolerant temper had taught men to question the authority that oppressed them, till the battle was no longer to be fought for a tippet and a surplice, but for the whole ecclesiastical hierarchy, interwoven as it was with the temporal constitution of England. It had been the first measure adopted in throwing off the yoke of Rome to invest the sovereign with an absolute control over the Anglican church; so that no part of its coercive discipline could be exercised but by his authority, nor any laws enacted for its governance without his sanction. This supremacy, indeed both Henry VIII. and Edward VI. had carried so far, that the bishops were reduced almost to the rank of temporal officers, taking out commissions to rule their dioceses during the king's pleasure; and Cranmer had prostrated at the feet of Henry those spiritual functions which have usually been reckoned inherent in the order of clergy. Elizabeth took some pains to soften and almost explain away her supremacy, in order to conciliate the catholics; while, by means of the high commission court, established by statute in the first year of her reign, she was practically asserting it with no little despotism. But the avowed opponents of this prerogative were hitherto chiefly those who looked to Rome for another head of their church. The disciples of Cartwright now learned to claim an ecclesiastical independence, as unconstrained as the Romish priesthood in the darkest ages had usurped. "No civil magistrate in councils or assemblies for church matters," he says in his _Admonition_, "can either be chief moderator, over-ruler, judge, or determiner; nor has he such authority as that, without his consent, it should not be lawful for ecclesiastical persons to make any church orders or ceremonies. Church matters ought ordinarily to be handled by church officers. The principal direction of them is by God's ordinance committed to the ministers of the church and to the ecclesiastical governors. As these meddle not with the making civil laws, so the civil magistrate ought not to ordain ceremonies, or determine controversies in the church, as long as they do not intrench upon his temporal authority. 'Tis the prince's province to protect and defend the councils of his clergy, to keep the peace, to see their decrees executed, and to punish the contemners of them; but to exercise no spiritual jurisdiction."[299] "It must be remembered," he says in another place, "that civil magistrates must govern the church according to the rules of God prescribed in his word, and that as they are nurses, so they be servants unto the church; and as they rule in the church, so they must remember to submit themselves unto the church, to submit their sceptres, to throw down their crowns before the church, yea, as the prophet speaketh, to lick the dust of the feet of the church."[300] It is difficult to believe that I am transcribing the words of a protestant writer; so much does this passage call to mind those tones of infatuated arrogance, which had been heard from the lips of Gregory VII. and of those who trod in his footsteps.[301] The strength of the protestant party had been derived, both in Germany and in England, far less from their superiority in argument, however decisive this might be, than from that desire which all classes, and especially the higher, had long experienced to emancipate themselves from the thraldom of ecclesiastical jurisdiction. For it is ever found, that men do not so much as give a hearing to novel systems in religion, till they have imbibed, from some cause or other, a secret distaste to that in which they have been educated. It was therefore rather alarming to such as had an acquaintance with ecclesiastical history, and knew the encroachments formerly made by the hierarchy throughout Europe, encroachments perfectly distinguishable from those of the Roman see, to perceive the same pretensions urged, and the same ambition and arrogance at work, which had imposed a yoke on the necks of their fathers. With whatever plausibility it might be maintained that a connection with temporal magistrates could only corrupt the purity and shackle the liberties of a Christian church, this argument was not for them to urge, who called on those magistrates to do the church's bidding, to enforce its decrees, to punish its refractory members; and while they disdained to accept the prince's co-operation as their ally, claimed his service as their minister. The protestant dissenters since the revolution, who have almost unanimously, and, I doubt not, sincerely, declared their averseness to any religious establishment, especially as accompanied with coercive power, even in favour of their own sect, are by no means chargeable with these errors of the early puritans. But the scope of Cartwright's declaration was not to obtain a toleration for dissent, not even by abolishing the whole ecclesiastical polity, to place the different professions of religion on an equal footing, but to substitute his own model of government, the one, exclusive, unappealable standard of obedience, with all the endowments, so far as applicable to its frame, of the present church, and with all the support to its discipline that the civil power could afford.[302] We are not however to conclude that every one, or even the majority, of those who might be counted on the puritan side in Elizabeth's reign, would have subscribed to these extravagant sentences of Cartwright, or desired to take away the legal supremacy of the Crown.[303] That party acquired strength by the prevailing hatred and dread of popery, and by the disgust which the bishops had been unfortunate enough to excite. If the language which I have quoted from the puritans breathed a spirit of ecclesiastical usurpation that might one day become dangerous, many were of opinion that a spirit not less mischievous in the present hierarchy, under the mask of the queen's authority, was actually manifesting itself in deeds of oppression. The upper ranks among the laity, setting aside courtiers, and such as took little interest in the dispute, were chiefly divided between those attached to the ancient church and those who wished for further alterations in the new. I conceive the church of England party, that is, the party adverse to any species of ecclesiastical change, to have been the least numerous of the three during this reign; still excepting, as I have said, the neutrals, who commonly make a numerical majority, and are counted along with the dominant religion.[304] But by the act of the fifth of Elizabeth, Roman catholics were excluded from the House of Commons; or, if some that way affected might occasionally creep into it, yet the terror of penal laws impending over their heads would make them extremely cautious of betraying their sentiments. This contributed with the prevalent tone of public opinion, to throw such a weight into the puritanical scale in the Commons, as it required all the queen's energy to counterbalance. _Puritans supported in the Commons._--In the parliament that met in April 1571, a few days only after the commencement of the session, Mr. Strickland, "a grave and ancient man of great zeal," as the reporter styles him, began the attack by a long but apparently temperate speech on the abuses of the church, tending only to the retrenchment of a few superstitions in the liturgy, and to some reforms in the disposition of benefices. He proceeded to bring in a bill for the reformation of the common prayer, which was read a first time. Abuses in respect to benefices appear to have been a copious theme of scandal. The power of dispensation, which had occasioned so much clamour in former ages, instead of being abolished or even reduced into bounds at the reformation, had been transferred entire from the pope to the king and archbishop. And, after the Council of Trent had effected such considerable reforms in the catholic discipline, it seemed a sort of reproach to the protestant church of England, that she retained all the dispensations, the exemptions, the pluralities, which had been deemed the peculiar corruptions of the worst times of popery.[305] In the reign of Edward VI., as I have already mentioned, the canon law being naturally obnoxious from its origin and character, a commission was appointed to draw up a code of ecclesiastical laws. This was accordingly compiled, but never obtained the sanction of parliament; and though some attempts were made, and especially in the Commons at this very time, to bring it again before the legislature, our ecclesiastical tribunals have been always compelled to borrow a great part of their principles from canon law: one important consequence of which may be mentioned by way of illustration; that they are incompetent to grant a divorce from the bond of marriage in cases of adultery, as had been provided in the reformation of ecclesiastical laws compiled under Edward VI. A disorderly state of the church, arising partly from the want of any fixed rules of discipline, partly from the negligence of some bishops, and simony of others, but above all, from the rude state of manners and general ignorance of the clergy, is the common theme of complaint in this period, and aggravated the increasing disaffection towards the prelacy. A bill was brought into the Commons to take away the granting of licences and dispensations by the Archbishop of Canterbury. But the queen's interference put a stop to this measure.[306] The House of Commons gave in this session a more forcible proof of its temper in ecclesiastical concerns. The articles of the English church, originally drawn up under Edward VI., after having undergone some alteration, were finally reduced to their present form by the convocation of 1562. But it seems to have been thought necessary that they should have the sanction of parliament, in order to make them binding on the clergy. Of these articles the far greater portion relate to matters of faith, concerning which no difference of opinion had as yet appeared. Some few however declare the lawfulness of the established form of consecrating bishops and priests, the supremacy of the Crown, and the power of the church to order rites and ceremonies. These involved the main questions at issue; and the puritan opposition was strong enough to withhold the approbation of the legislature from this part of the national symbol. The act of 13 Eliz. c. 12, accordingly enacts, that every priest or minister shall subscribe to all the articles of religion which _only_ concern the confession of the true christian faith, and the doctrine of the sacraments, comprised in a book entitled _Articles whereupon it was agreed_, etc. That the word _only_ was inserted for the sake of excluding the articles which established church authority and the actual discipline, is evident from a remarkable conversation which Mr. Wentworth, the most distinguished asserter of civil liberty in this reign, relates himself in a subsequent session (that of 1575), to have held on the subject with Archbishop Parker. "I was," he says, "among others, the last parliament sent for unto the Archbishop of Canterbury, for the articles of religion that then passed this house. He asked us, 'Why we did put out of the book the articles for the homilies, consecration of bishops, and such like?' 'Surely, sir,' said I, 'because we were so occupied in other matters that we had no time to examine them how they agreed with the word of God.' 'What!' said he, 'surely you mistake the matter; you will refer yourselves wholly to us therein!' 'No; by the faith I bear to God,' said I, 'we will pass nothing before we understand what it is; for that were but to make you popes: make you popes who list,' said I, 'for we will make you none.' And sure, Mr. Speaker, the speech seemed to me to be a pope-like speech, and I fear least our bishops do attribute this of the pope's canons unto themselves; Papa non potest errare."[307] The intrepid assertion of the right of private judgment on one side, and the pretension to something like infallibility on the other, which have been for more than two centuries since so incessantly repeated, are here curiously brought into contrast. As to the reservation itself, obliquely insinuated rather than expressed in this statute, it proved of little practical importance, the bishops having always exacted a subscription to the whole thirty-nine articles.[308] It was not to be expected that the haughty spirit of Parker, which had refused to spare the honest scruples of Sampson and Coverdale, would abate of its rigour towards the daring paradoxes of Cartwright. His disciples, in truth, from dissatisfied subjects of the church, were become her downright rebels, with whom it was hardly practicable to make any compromise that would avoid a schism, except by sacrificing the splendour and jurisdiction of an established hierarchy. The archbishop continued, therefore, to harass the puritan ministers, suppressing their books, silencing them in churches, prosecuting them in private meetings.[309] Sandys and Grindal, the moderate reformers of our spiritual aristocracy, not only withdrew their countenance from a party who aimed at improvement by subversion, but fell, according to the unhappy temper of their age, into courses of undue severity. Not merely the preachers, to whom, as regular ministers, the rules of canonical obedience might apply, but plain citizens, for listening to their sermons, were dragged before the high commission and imprisoned upon any refusal to conform.[310] Strange that these prelates should not have remembered their own magnanimous readiness to encounter suffering for conscience sake in the days of Mary, or should have fondly arrogated to their particular church that elastic force of resolution, which disdains to acknowledge tyrannous power within the sanctuary of the soul, and belongs to the martyrs of every opinion without attesting the truth of any! The puritans meanwhile had not lost all their friends in the council, though it had become more difficult to protect them. One powerful reason undoubtedly operated on Walsingham and other ministers of Elizabeth's court against crushing their party; namely, the precariousness of the queen's life, and the unsettled prospects of succession. They had already seen, in the Duke of Norfolk's conspiracy, that more than half the superior nobility had committed themselves to support the title of the Queen of Scots. That title was sacred to all who professed the catholic religion, and respectable to a large proportion of the rest. But deeming, as they did, that queen a convicted adulteress and murderer, the determined enemy of their faith, and conscious that she could never forgive those who had counselled her detention and sought her death, it would have been unworthy of their prudence and magnanimity to have gone as sheep to the slaughter, and risked the destruction of protestantism under a second Mary, if the intrigues of ambitious men, the pusillanimity of the multitude, and the specious pretext of hereditary right, should favour her claims on a demise of the Crown. They would have failed perhaps in attempting to resist them; but upon resistance I make no question that they had resolved. In so awful a crisis, to what could they better look than to the stern, intrepid, uncompromising spirit of puritanism; congenial to that of the Scottish reformers, by whose aid the lords of the congregation had overthrown the ancient religion in despite of the regent Mary of Guise? Of conforming churchmen, in general, they might well be doubtful, after the oscillations of the three preceding reigns; but every abhorrer of ceremonies, every rejecter of prelatical authority, might be trusted as protestant to the heart's core, whose sword would be as ready as his tongue to withstand idolatry. Nor had the puritans admitted, even in theory, those extravagant notions of passive obedience which the church of England had thought fit to mingle with her homilies. While the victory was yet so uncertain, while contingencies so incalculable might renew the struggle, all politic friends of the reformation would be anxious not to strengthen the enemy by disunion in their own camp. Thus Sir Francis Walsingham, who had been against enforcing the obnoxious habits, used his influence with the scrupulous not to separate from the church on account of them; and again, when the schism had already ensued, thwarted as far as his credit in the council extended, that harsh intolerance of the bishops which aggravated its mischiefs.[311] We should reason in as confined a manner as the puritans themselves, by looking only at the captious frivolousness of their scruples, and treating their sect either as wholly contemptible or as absolutely mischievous. We do injustice to these wise counsellors of the maiden queen, when we condemn, I do not mean on the maxims only of toleration, but of civil prudence, their unwillingness to crush the non-conforming clergy by an undeviating rigour. It may justly be said that, in a religious sense, it was a greater good to possess a well-instructed pious clergy, able to contend against popery, than it was an evil to let some prejudices against mere ceremonies gain a head. The old religion was by no means, for at least the first half of Elizabeth's reign, gone out of the minds of the people. The lurking priests had great advantages from the attractive nature of their faith, and some, no doubt, from its persecution. A middle system, like the Anglican, though it was more likely to produce exterior conformity, and for that reason was, I think, judiciously introduced at the outset, did not afford such a security against relapse, nor draw over the heart so thoroughly, as one which admitted of no compromise. Thus the sign of the cross in baptism, one of the principal topics of objection, may well seem in itself a very innocent and decorous ceremony. But if the perpetual use of that sign is one of the most striking superstitions in the church of Rome, it might be urged in behalf of the puritans, that the people were less likely to treat it with contempt, when they saw its continuance, even in one instance, so strictly insisted upon. I do not pretend to say that this reasoning is right, but that it is at least plausible, and that we must go back and place ourselves, as far as we can, in those times, before we determine upon the whole of this controversy in its manifold bearings. The great object of Elizabeth's ministers, it must be kept in mind, was the preservation of the protestant religion, to which all ceremonies of the church, and even its form of discipline, were subordinate. An indifferent passiveness among the people, a humble trust in authority, however desirable in the eyes of churchmen, was not the temper which would have kept out the right heir from the throne, or quelled the generous ardour of the catholic gentry on the queen's decease. _Prophecyings._--A matter very much connected with the present subject will illustrate the different schemes of ecclesiastical policy pursued by the two parties that divided Elizabeth's council. The clergy in several dioceses set up, with encouragement from their superiors, a certain religious exercise, called prophecyings. They met at appointed times to expound and discuss together particular texts of Scripture, under the presidency of a moderator, appointed by the bishop, who finished by repeating the substance of their debate with his own determination upon it. These discussions were in public; and it was contended that this sifting of the grounds of their faith, and habitual argumentation, would both tend to edify the people, very little acquainted as yet with their religion, and supply in some degree the deficiencies of learning among the pastors themselves. These deficiencies were indeed glaring; and it is not unlikely that the prophecyings might have had a salutary effect, if it had been possible to exclude the prevailing spirit of the age. It must however be evident to any one who had experience of mankind, that the precise clergy, armed not only with popular topics, but with an intrinsic superiority of learning and ability to support them, would wield these assemblies at their pleasure, whatever might be the regulations devised for their control. The queen entirely disliked them, and directed Parker to put them down. He wrote accordingly to Parkhurst, Bishop of Norwich, for that purpose. The bishop was unwilling to comply. And some privy counsellors interfered by a letter, enjoining him not to hinder these exercises, so long as nothing contrary to the church was taught therein. This letter was signed by Sir Thomas Smith, Sir Walter Mildmay, Bishop Sandys, and Sir Francis Knollys. It was, in effect, to reverse what the archbishop had done. Parker, however, who was not easily daunted, wrote again to Parkhurst, that, understanding he had received instructions in opposition to the queen's orders and his own, he desired to be informed what they were. This seems to have checked the counsellors; for we find that the prophecyings were now put down.[312] Though many will be of opinion that Parker took a statesmanlike view of the interests of the church of England in discouraging these exercises, they were generally regarded as so conducive to instruction that he seems to have stood almost alone in his opposition to them. Sandys' name appears to the above-mentioned letter of the council to Parkhurst. Cox, also, was inclined to favour the prophecyings. And Grindal, who in 1575 succeeded Parker in the see of Canterbury, bore the whole brunt of the queen's displeasure rather than obey her commands on this subject. He conceived that, by establishing strict rules with respect to the direction of those assemblies, the abuses which had already appeared of disorderly debate, and attacks on the discipline of the church, might be got rid of without entirely abolishing the exercise. The queen would hear of no middle course, and insisted both that the prophecyings should be discontinued, and that fewer licences for preaching should be granted. For no parish priest could without a licence preach any discourse except the regular homilies; and this was one of the points of contention with the puritans. Grindal steadily refused to comply with this injunction; and was in consequence sequestered from the exercise of his jurisdiction for the space of about five years, till, on his making a kind of submission, the sequestration was taken off not long before his death. The queen, by circular letters to the bishops, commanded them to put an end to the prophecyings, which were never afterwards renewed.[313] _Whitgift._--Whitgift, Bishop of Worcester, a person of a very opposite disposition, was promoted, in 1583, to the primacy, on Grindal's decease. He had distinguished himself some years before by an answer to Cartwright's _Admonition_, written with much ability, but not falling short of the work it undertook to confute in rudeness and asperity.[314] It is seldom good policy to confer such eminent stations in the church on the gladiators of theological controversy; who from vanity and resentment, as well as the course of their studies, will always be prone to exaggerate the importance of the disputes wherein they have been engaged, and to turn whatever authority the laws or the influence of their place may give them against their adversaries. This was fully illustrated by the conduct of Archbishop Whitgift, whose elevation the wisest of Elizabeth's counsellors had ample reason to regret. In a few months after his promotion, he gave an earnest of the rigour he had determined to adopt, by promulgating articles for the observance of discipline. One of these prohibited all preaching, reading, or catechising in private houses, whereto any not of the same family should resort, "seeing the same was never permitted as lawful under any christian magistrate." But that which excited the loudest complaints was the subscription to three points, the queen's supremacy, the lawfulness of the common prayer and ordination service, and the truth of the whole thirty-nine articles, exacted from every minister of the church.[315] These indeed were so far from novelties, that it might seem rather supererogatory to demand them (if in fact the law required subscription to all the articles); yet it is highly probable that many had hitherto eluded the legal subscriptions, and that others had conceived their scruples after having conformed to the prescribed order. The archbishop's peremptory requisition passed, perhaps justly, for an illegal stretch of power.[316] It encountered the resistance of men pertinaciously attached to their own tenets, and ready to suffer the privations of poverty rather than yield a simulated obedience. To suffer however in silence has at no time been a virtue with our protestant dissenters. The kingdom resounded with the clamour of those who were suspended or deprived of their benefices, and of their numerous abettors.[317] They appealed from the archbishop to the privy council. The gentry of Kent and other countries strongly interposed in their behalf. They had powerful friends at court, especially Knollys, who wrote a warm letter to the archbishop.[318] But, secure of the queen's support, who was now chiefly under the influence of Sir Christopher Hatton, a decided enemy to the puritans, Whitgift relented not a jot of his resolution, and went far greater lengths than Parker had ever ventured, or perhaps had desired, to proceed. _High commission court._--The Act of Supremacy, while it restored all ecclesiastical jurisdiction to the Crown, empowered the queen to execute it by commissioners appointed under the great seal, in such manner and for such time as she should direct; whose power should extend to visit, correct, and amend all heresies, schisms, abuses, and offences whatever, which fall under the cognisance and are subject to the correction of spiritual authority. Several temporary commissions had sat under this act with continually augmented powers, before that appointed in 1583, wherein the jurisdiction of this anomalous court almost reached its zenith. It consisted of forty-four commissioners, twelve of whom were bishops, many more privy-counsellors, and the rest either clergymen or civilians. This commission, after reciting the acts of supremacy, uniformity, and two others, directs them to inquire from time to time, as well by the oaths of twelve good and lawful men, as by witnesses and all other means they can devise, of all offences, contempts, or misdemeanours done and committed contrary to the tenor of the said several acts and statutes; and also to inquire of all heretical opinions, seditious books, contempts, conspiracies, false rumours or talk, slanderous words and sayings, etc., contrary to the aforesaid laws. Power is given to any three commissioners, of whom one must be a bishop, to punish all persons absent from church, according to the Act of Uniformity, or to visit and reform heresies and schisms according to law; to deprive all beneficed persons holding any doctrine contrary to the thirty-nine articles; to punish incests, adulteries, and all offences of the kind; to examine all suspected persons on their oaths, and to punish all who should refuse to appear or to obey their orders, by spiritual censure or by discretionary fine or imprisonment; to alter and amend the statutes of colleges, cathedrals, schools, and other foundations, and to tender the oath of supremacy according to the act of parliament.[319] Master of such tremendous machinery, the archbishop proceeded to call into action one of its powers contained for the first time in the present commission, by tendering what was technically styled the oath _ex officio_, to such of the clergy as were surmised to harbour a spirit of puritanical disaffection. This procedure, which was wholly founded on the canon law, consisted in a series of interrogations, so comprehensive as to embrace the whole scope of clerical uniformity, yet so precise and minute as to leave no room for evasion, to which the suspected party was bound to answer upon oath.[320] So repugnant was this to the rules of our English law, and to the principles of natural equity, that no species of ecclesiastical tyranny seems to have excited so much indignation. _Lord Burleigh averse to severity._--Lord Burleigh, who, though at first rather friendly to Whitgift, was soon disgusted by his intolerant and arbitrary behaviour, wrote in strong terms of remonstrance against these articles of examination, as "so curiously penned, so full of branches and circumstances, as he thought the inquisitors of Spain used not so many questions to comprehend and to trap their preys." The primate replied by alleging reasons in behalf of the mode of examination, but very frivolous, and such as a man determined to persevere in an unwarrantable course of action may commonly find.[321] They had little effect on the calm and sagacious mind of the treasurer, who continued to express his dissatisfaction, both individually and as one of the privy council.[322] But the extensive jurisdiction improvidently granted to the ecclesiastical commissioners, and which the queen was not at all likely to recall, placed Whitgift beyond the control of the temporal administration. The Archbishop, however, did not stand alone in this impracticable endeavour to overcome the stubborn sectaries by dint of hard usage. Several other bishops were engaged in the same uncharitable course;[323] but especially Aylmer of London, who has left a worse name in this respect than any prelate of Elizabeth's reign.[324] The violence of Aylmer's temper was not redeemed by many virtues; it is impossible to exonerate his character from the imputations of covetousness and of plundering the revenues of his see; faults very prevalent among the bishops of that period. The privy council wrote sometimes to expostulate with Aylmer, in a tone which could hardly have been employed towards a man in his station who had not forfeited the general esteem. Thus, upon occasion of one Benison, whom he had imprisoned without cause, we find a letter signed by Burleigh, Leicester, Walsingham, and even Hatton, besides several others, urging the bishop to give the man a sum of money, since he would recover damages at law, which might hurt his lordship's credit. Aylmer, however, who was of a stout disposition, especially when his purse was interested, objected strongly to this suggestion, offering rather to confer on Benison a small living, or to let him take his action at law. The result does not appear; but probably the bishop did not yield.[325] He had worse success in an information laid against him for felling his woods, which ended not only in an injunction, but a sharp reprimand from Cecil in the star-chamber.[326] What Lord Burleigh thought of these proceedings may be seen in the memorial to the queen on matters of religion and state, from which I have, in the last chapter, made an extract to show the tolerance of his disposition with respect to catholics. Protesting that he was not in the least addicted to the preciser sort of preachers, he declares himself "bold to think that the bishops, in these dangerous times, take a very ill and unadvised course in driving them from their cures;" first, because it must discredit the reputation of her majesty's power, when foreign princes should perceive that even among her protestant subjects, in whom consisted all her force, strength, and power, there was so great a heart-burning and division; and secondly, "because," he says, "though they were over squeamish and nice in their opinions, and more scrupulous than they need; yet with their careful catechising and diligent preaching, they bring forth that fruit which your most excellent majesty is to desire and wish; namely, the lessening and diminishing the papistical numbers."[327] But this great minister's knowledge of the queen's temper, and excessive anxiety to retain her favour, made him sometimes fearful to act according to his own judgment. "It is well known," Lord Bacon says of him, in a treatise published in 1591, "that as to her majesty, there was never a counsellor of his lordship's long continuance that was so appliable to her majesty's princely resolutions, endeavouring always after faithful propositions and remonstrances, and these in the best words and the most grateful manner, to rest upon such conclusions as her majesty in her own wisdom determineth, and them to execute to the best; so far hath he been from contestation, or drawing her majesty into any of his own courses."[328] Statesmen who betray this unfortunate infirmity of clinging too fondly to power, become the slaves of the princes they serve. Burleigh used to complain of the harshness with which the queen treated him.[329] And though, more lucky than most of his class, he kept the white staff of treasurer down to his death, he was reduced in his latter years to court a rising favourite more submissively than became his own dignity.[330] From such a disposition we could not expect any decided resistance to those measures of severity towards the puritans which fell in so entirely with Elizabeth's temper. There is no middle course, in dealing with religious sectaries, between the persecution that exterminates, and the toleration that satisfies. They were wise in their generation, the Loaisas and Valdes of Spain, who kindled the fires of the inquisition, and quenched the rising spirit of protestantism in the blood of a Seso and a Cazalla. But sustained by the favouring voice of his associates, and still more by that firm persuasion which bigots never know how to appreciate in their adversaries, a puritan minister set at nought the vexatious and arrogant tribunal before which he was summoned. Exasperated, not overawed, the sectaries threw off what little respect they had hitherto paid to the hierarchy. They had learned, in the earlier controversies of the reformation, the use, or, more truly, the abuse, of that powerful lever of human bosoms, the press. He who in Saxony had sounded the first trumpet-peal against the battlements of Rome, had often turned aside from his graver labours to excite the rude passions of the populace by low ribaldry and exaggerated invective; nor had the English reformers ever scrupled to win proselytes by the same arts. What had been accounted holy zeal in the mitred Bale and martyred Latimer, might plead some apology from example in the aggrieved puritan. Pamphlets, chiefly anonymous, were rapidly circulated throughout the kingdom, inveighing against the prelacy. Of these libels the most famous went under the name of Martin Mar-prelate, a vizored knight of those lists, behind whose shield a host of sturdy puritans were supposed to fight. These were printed at a movable press, shifted to different parts of the country as the pursuit grew hot, and contained little serious argument, but the unwarrantable invectives of angry men, who stuck at no calumny to blacken their enemies.[331] If these insults upon authority are apt sometimes to shock us even now, when long usage has rendered such licentiousness of seditious and profligate libellers almost our daily food, what must they have seemed in the reign of Elizabeth, when the press had no acknowledged liberty, and while the accustomed tone in addressing those in power was little better than servile adulation? A law had been enacted some years before, levelled at the books dispersed by the seminary priests, which rendered the publication of seditious libels against the queen's government a capital felony.[332] This act, by one of those strained constructions which the judges were commonly ready to put upon any political crime, was brought to bear on some of these puritanical writings. The authors of Martin Mar-prelate could not be traced with certainty; but strong suspicions having fallen on one Penry, a young Welshman, he was tried some time after for another pamphlet, containing some sharp reflections on the queen herself, and received sentence of death, which it was thought proper to carry into execution.[333] Udal, a puritan minister, fell into the grasp of the same statute for an alleged libel on the bishops, which had surely a very indirect reference to the queen's administration. His trial, like most other political trials of the age, disgraces the name of English justice. It consisted mainly in a pitiful attempt by the court to entrap him into a confession that the imputed libel was of his writing, as to which their proof was deficient. Though he avoided this snare, the jury did not fail to obey the directions they received to convict him. So far from being concerned in Martin's writings, Udal professed his disapprobation of them and his ignorance of the author. This sentence appeared too iniquitous to be executed even in the eyes of Whitgift, who interceded for his life; but he died of the effects of confinement.[334] _Attempt to set up a Presbyterian system._--If the libellous pen of Martin Mar-prelate was a thorn to the rulers of the church, they had still more cause to take alarm at an overt measure of revolution which the discontented party began to effect about the year 1590. They set up, by common agreement, their own platform of government by synods and classes; the former being a sort of general assemblies, the latter held in particular shires or dioceses, agreeably to the presbyterian model established in Scotland. In these meetings debates were had, and determinations usually made, sufficiently unfavourable to the established system. The ministers composing them subscribed to the puritan book of discipline. These associations had been formed in several counties, but chiefly in those of Northampton and Warwick, under the direction of Cartwright, the legislator of their republic, who possessed, by the Earl of Leicester's patronage, the mastership of a hospital in the latter town.[335] It would be unjust to censure the archbishop for interfering to protect the discipline of his church against these innovators, had but the means adopted for that purpose been more consonant to equity. Cartwright with several of his sect were summoned before the ecclesiastical commission; where refusing to inculpate themselves by taking the oath _ex officio_, they were committed to the Fleet. This punishment not satisfying the rigid churchmen, and the authority of the ecclesiastical commission being incompetent to inflict any heavier judgment, it was thought fit the next year to remove the proceedings into the court of star-chamber. The judges, on being consulted, gave it as their opinion, that since far less crimes had been punished by condemnation to the galleys or perpetual banishment, the latter would be fittest for their offence. But several of the council had more tender regards to sincere, though intractable, men; and in the end they were admitted to bail upon a promise to be quiet, after answering some interrogatories respecting the queen's supremacy and other points, with civility and an evident wish to avoid offence.[336] It may be observed that Cartwright explicitly declared his disapprobation of the libels under the name of Martin Mar-prelate.[337] Every political party, however honourable may be its objects and character, is liable to be disgraced by the association of such unscrupulous zealots. But, though it is an uncandid sophism to charge the leaders with the excesses they profess to disapprove in their followers, it must be confessed that few chiefs of faction have had the virtue to condemn with sufficient energy the misrepresentations which are intended for their benefit. It was imputed to the puritan faction with more or less of truth, that, not content with the subversion of episcopacy and of the whole ecclesiastical polity established in the kingdom, they maintained principles that would essentially affect its civil institutions. Their denial indeed of the queen's supremacy, carried to such lengths as I have shown above, might justly be considered as a derogation of her temporal sovereignty. Many of them asserted the obligation of the judicial law of Moses, at least in criminal cases; and deduced from this the duty of putting idolaters (that is, papists), adulterers, witches and demoniacs, sabbath-breakers, and several other classes of offenders, to death.[338] They claimed to their ecclesiastical assemblies the right of determining "all matters wherein breach of charity may be, and all matters of doctrine and manners, so far as appertaineth to conscience." They took away the temporal right of patronage to churches, leaving the choice of ministers to general suffrage.[339] There are even passages in Cartwright's Admonition, which intimate that the commonwealth ought to be fashioned after the model of the church.[340] But these it would not be candid to press against the more explicit declarations of all the puritans in favour of a limited monarchy, though they grounded its legitimacy on the republican principles of popular consent.[341] And with respect to the former opinions, they appear to have been by no means common to the whole puritan body; some of the deprived and imprisoned ministers even acknowledging the queen's supremacy in as full a manner as the law conferred it on her, and as she professed to claim it.[342] The pretensions advanced by the school of Cartwright did not seem the less dangerous to those who cast their eyes upon what was passing in Scotland, where they received a practical illustration. In that kingdom, a form of polity very nearly conforming to the puritanical platform had become established at the reformation of 1560; except that the office of bishop or superintendent still continued, but with no paramount, far less arbitrary dominion, and subject even to the provincial synod, much more to the general assembly of the Scottish church. Even this very limited episcopacy was abolished in 1592. The presbyterian clergy, individually and collectively, displayed the intrepid, haughty, and untractable spirit of the English puritans. Though Elizabeth had from policy abetted the Scottish clergy in their attacks upon the civil administration, this connection itself had probably given her such an insight into their temper as well as their influence, that she must have shuddered at the thought of seeing a republican assembly substituted for those faithful satraps, her bishops, so ready to do her bidding, and so patient under the hard usage she sometimes bestowed on them. _House of Commons averse to episcopal authority._--These prelates did not however obtain so much support from the House of Commons as from their sovereign. In that assembly a determined band of puritans frequently carried the victory against the courtiers. Every session exhibited proofs of their dissatisfaction with the state of the church. The Crown's influence would have been too weak without stretches of its prerogative. The Commons in 1575 received a message forbidding them to meddle with religious concerns. For five years afterwards the queen did not convoke parliament, of which her dislike to their puritanical temper might in all probability be the chief reason. But, when they met again in 1580, the same topic of ecclesiastical grievances, which had by no means abated during the interval, was revived. The Commons appointed a committee, formed only of the principal officers of the Crown who sat in the house, to confer with some of the bishops, according to the irregular and imperfect course of parliamentary proceedings in that age, "touching the griefs of this house for some things very requisite to be reformed in the church, as the great number of unlearned and unable ministers, the great abuse of excommunications for every matter of small moment, the commutation of penances, and the great multitude of dispensations and pluralities, and other things very hurtful to the church."[343] The committee reported that they found some of the bishops desirous of a remedy for the abuses they confessed, and of joining in a petition for that purpose to her majesty; which had accordingly been done, and a gracious answer, promising all convenient reformation, by laying the blame of remissness upon some prelates, had been received. This the house took with great thankfulness. It was exactly the course which pleased Elizabeth, who had no regard for her bishops, and a real anxiety that her ecclesiastical as well as temporal government should be well administered, provided her subjects would intrust the sole care of it to herself, or limit their interference to modest petitioning. A new parliament having been assembled, soon after Whitgift on his elevation to the primacy had begun to enforce an universal conformity, the lower house drew up a petition in sixteen articles, to which they requested the Lords' concurrence, complaining of the oath _ex officio_, the subscription to the three new articles, the abuses of excommunication, licences for non-residence, and other ecclesiastical grievances. The Lords replied coolly, that they conceived many of those articles, which the Commons had proposed, to be unnecessary, and that others of them were already provided for; and that the uniformity of the common prayer, the use of which the Commons had requested to leave in certain respects to the minister's discretion, had been established by parliament. The two archbishops, Whitgift and Sandys, made a more particular answer to each article of the petition, in the name of their brethren.[344] But, in order to show some willingness towards reformation, they proposed themselves in convocation a few regulations for redress of abuses, none of which, however, on this occasion, though they received the royal assent, were submitted to the legislature;[345] the queen in fact maintaining an insuperable jealousy of all intermeddling on the part of parliament with her exclusive supremacy over the church. Excluded by Elizabeth's jealousy from entertaining these religious innovations, which would probably have met no unfavourable reception from a free parliament, the Commons vented their ill-will towards the dominant hierarchy in complaints of ecclesiastical grievances, and measures to redress them; as to which, even with the low notions of parliamentary right prevailing at court, it was impossible to deny their competence. Several bills were introduced this session of 1584-5 into the lower house, which, though they had little chance of receiving the queen's assent, manifest the sense of that assembly, and in all likelihood of their constituents. One of these imported that bishops should be sworn in one of the courts of justice to do nothing in their office contrary to the common law. Another went to restrain pluralities, as to which the prelates would very reluctantly admit of any limitation.[346] A bill of the same nature passed the Commons in 1589, though not without some opposition. The clergy took so great alarm at this measure, that the convocation addressed the queen in vehement language against it; and the archbishop throwing all the weight of his advice and authority into the same scale, the bill expired in the upper house.[347] A similar proposition in the session of 1601 seems to have miscarried in the Commons.[348] In the next chapter will be found other instances of the Commons' reforming temper in ecclesiastical concerns, and the queen's determined assertion of her supremacy. The oath _ex officio_, binding the taker to answer all questions that should be put to him, inasmuch as it contravened the generous maxim of English law that no one is obliged to criminate himself, provoked very just animadversion. Morice, attorney of the court of wards, not only attacked its legality with arguments of no slight force, but introduced a bill to take it away. This was on the whole well received by the house; and Sir Francis Knollys, the stanch enemy of episcopacy, though in high office, spoke in its favour. But the queen put a stop to the proceeding, and Morice lay some time in prison for his boldness. The civilians, of whom several sat in the lower house, defended a mode of procedure that had been borrowed from their own jurisprudence. This revived the ancient animosity between them and the common lawyers. The latter had always manifested a great jealousy of the spiritual jurisdiction, and had early learned to restrain its exorbitances by writs of prohibition from the temporal courts. Whitgift, as tenacious of power as the most ambitious of his predecessors, murmured like them at this subordination, for such it evidently was, to a lay tribunal.[349] But the judges, who found as much gratification in exerting their power as the bishops, paid little regard to the remonstrances of the latter. We find the reports of this and the succeeding reign full of cases of prohibition. Nor did other abuses imputed to these obnoxious judicatures fail to provoke censure, such as the unreasonable fees of their officers, and the usage of granting licences, and commuting penances for money.[350] The ecclesiastical courts indeed have generally been reckoned more dilatory, vexatious, and expensive than those of the common law. But in the present age that part of their jurisdiction, which, though coercive, is professedly spiritual, and wherein the greatest abuses have been alleged to exist, has gone very much into disuse. In matrimonial and testamentary causes, their course of proceeding may not be open to any censure, so far as the essential administration of justice is concerned; though in the latter of these, a most inconvenient division of jurisdictions, following not only the unequal boundaries of episcopal dioceses, but the various peculiars or exempt districts which the church of England has continued to retain, is productive of a good deal of trouble and needless expense. _Independents liable to severe laws._--Notwithstanding the tendency towards puritanism which the House of Commons generally displayed, the court succeeded in procuring an act, which eventually pressed with very great severity upon that class. This passed in 1593, and enacted the penalty of imprisonment against any person above the age of sixteen, who should forbear for the space of a month to repair to some church, until he should make such open submission and declaration of conformity as the act appoints. Those who refused to submit to these conditions were to abjure the realm, and if they should return without the queen's licence, to suffer death as felons.[351] As this, on the one hand, like so many former statutes, helped to crush the unfortunate adherents to the Romish faith, so too did it bear an obvious application to such protestant sectaries as had professedly separated from the Anglican church. But it is here worthy of remark, that the puritan ministers throughout this reign disclaimed the imputation of schism, and acknowledged the lawfulness of continuing in the established church, while they demanded a further reformation of her discipline.[352] The real separatists, who were also a numerous body, were denominated Brownists or Barrowists, from the names of their founders, afterwards lost in the more general appellation of Independents. These went far beyond the puritans in their aversion to the legal ministry, and were deemed in consequence still more proper subjects for persecution. Multitudes of them fled to Holland from the rigour of the bishops in enforcing this statute.[353] But two of this persuasion, Barrow and Greenwood, experienced a still severer fate. They were indicted on that perilous law of the 23rd of the queen, mentioned in the last chapter, for spreading seditious writings, and executed at Bury. They died, Neal tells us, with such expressions of piety and loyalty that Elizabeth regretted the consent she had given to their deaths.[354] _Hooker's "Ecclesiastical Polity." Its character._--But, while these scenes of pride and persecution on one hand, and of sectarian insolence on the other, were deforming the bosom of the English church, she found a defender of her institutions in one who mingled in these vulgar controversies like a knight of romance among caitiff brawlers, with arms of finer temper and worthy to be proved in a nobler field. Richard Hooker, master of the Temple, published the first four books of his _Ecclesiastical Polity_ in 1594; the fifth three years afterwards; and dying in 1600, left behind three which did not see the light till 1647. This eminent work may justly be reckoned to mark an æra in our literature. For if passages of much good sense and even of a vigorous eloquence are scattered in several earlier writers in prose, yet none of these, except perhaps Latimer and Ascham, and Sir Philip Sidney in his _Arcadia_, can be said to have acquired enough reputation to be generally known even by name, much less are read in the present day; and it is indeed not a little remarkable that England, until near the end of the sixteenth century, had given few proofs in literature of that intellectual power which was about to develop itself with such unmatchable energy in Shakspeare and Bacon. We cannot indeed place Hooker (but whom dare we to place?) by the side of these master spirits; yet he has abundant claims to be counted among the luminaries of English literature. He not only opened the mine, but explored the depths, of our native eloquence. So stately and graceful is the march of his periods, so various the fall of his musical cadences upon the ear, so rich in images, so condensed in sentences, so grave and noble his diction, so little is there of vulgarity in his racy idiom, of pedantry in his learned phrase, that I know not whether any later writer has more admirably displayed the capacities of our language, or produced passages more worthy of comparison with the splendid monuments of antiquity. If we compare the first book of the _Ecclesiastical Polity_ with what bears perhaps most resemblance to it of any thing extant, the treatise of Cicero de Legibus, it will appear somewhat perhaps inferior, through the imperfection of our language, which with all its force and dignity does not equal the Latin in either of these qualities, and certainly more tedious and diffuse in some of its reasonings, but by no means less high-toned in sentiment, or less bright in fancy, and far more comprehensive and profound in the foundations of its philosophy. The advocates of a presbyterian church had always thought it sufficient to prove that it was conformable to the apostolical scheme as deduced merely from the scriptures. A pious reverence for the sacred writings, which they made almost their exclusive study, had degenerated into very narrow views on the great themes of natural religion and the moral law, as deducible from reason and sentiment. These, as most of the various families of their descendants continue to do, they greatly slighted, or even treated as the mere chimeras of heathen philosophy. If they looked to the Mosaic law as the standard of criminal jurisprudence, if they sought precedents from scripture for all matters of temporal policy, much more would they deem the practice of the apostles an unerring and immutable rule for the discipline of the Christian church.[355] To encounter these adversaries, Hooker took a far more original course than the ordinary controvertists, who fought their battle with conflicting interpretations of scriptural texts or passages from the fathers. He enquired into the nature and foundation of law itself as the rule of operation to all created beings, yielding thereto obedience by unconscious necessity, or sensitive appetite, or reasonable choice; reviewing especially those laws that regulate human agency, as they arise out of moral relations, common to our species, or the institutions of politic societies, or the inter-community of independent nations; and having thoroughly established the fundamental distinction between laws natural and positive, eternal and temporary, immutable and variable, he came with all this strength of moral philosophy to discriminate by the same criterion the various rules and precepts contained in the scriptures. It was a kind of maxim among the puritans, that scripture was so much the exclusive rule of human actions, that whatever, in matters at least concerning religion, could not be found to have its authority, was unlawful. Hooker devoted the whole second book of his work to the refutation of this principle. He proceeded afterwards to attack its application more particularly to the episcopal scheme of church government, and to the various ceremonies or usages which those sectaries treated as either absolutely superstitious, or at least as impositions without authority. It was maintained by this great writer, not only that ritual observances are variable according to the discretion of ecclesiastical rulers, but that no certain form of polity is set down in scripture as generally indispensable for a Christian church. Far, however, from conceding to his antagonists the fact which they assumed, he contended for episcopacy as an apostolical institution, and always preferable, when circumstances would allow its preservation, to the more democratical model of the Calvinistic congregations. "If we did seek," he says, "to maintain that which most advantageth our own cause, the very best way for us and the strongest against them were to hold, even as they do, that in scripture there must needs be found some particular form of church polity which God hath instituted, and which for that very cause belongeth to all churches at all times. But with any such partial eye to respect ourselves, and by cunning to make those things seem the truest, which are the fittest to serve our purpose, is a thing which we neither like nor mean to follow." The richness of Hooker's eloquence is chiefly displayed in his first book; beyond which perhaps few who want a taste for ecclesiastical reading are likely to proceed. The second and third, however, though less brilliant, are not inferior in the force and comprehensiveness of reasoning. The eighth and last returns to the subject of civil government, and expands, with remarkable liberality, the principles he had laid down as to its nature in the first book. Those that intervene are mostly confined to a more minute discussion of the questions mooted between the church and puritans; and in these, as far as I have looked into them, though Hooker's argument is always vigorous and logical, and he seems to be exempt from that abusive insolence to which polemical writers were then even more prone than at present, yet he has not altogether the terseness or lucidity, which long habits of literary warfare, and perhaps a natural turn of mind, have given to some expert dialecticians. In respect of language, the three posthumous books, partly from having never received the author's last touches, and partly, perhaps, from his weariness of the labour, are beyond comparison less elegantly written than the preceding. The better parts of the _Ecclesiastical Polity_ bear a resemblance to the philosophical writings of antiquity, in their defects as well as their excellencies. Hooker is often too vague in the use of general terms, too inconsiderate in the admission of principles, too apt to acquiesce in the scholastic pseudo-philosophy, and indeed in all received tenets; he is comprehensive rather than sagacious, and more fitted to sift the truth from the stores of accumulated learning than to seize it by an original impulse of his own mind; somewhat also impeded, like many other great men of that and the succeeding century, by too much acquaintance with books, and too much deference for their authors. It may be justly objected to some passages, that they elevate ecclesiastical authority, even in matters of belief, with an exaggeration not easily reconciled to the protestant right of private judgment, and even of dangerous consequence in those times; as when he inclines to give a decisive voice in theological controversies to general councils; not indeed on the principles of the church of Rome, but on such as must end in the same conclusion, the high probability that the aggregate judgment of many grave and learned men should be well founded.[356] Nor would it be difficult to point out several other subjects, such as religious toleration, as to which he did not emancipate himself from the trammels of prejudice. But, whatever may be the imperfections of his _Ecclesiastical Polity_, they are far more than compensated by its eloquence and its reasoning, and above all by that deep pervading sense of the relation between man and his Creator, as the groundwork of all eternal law, which rendered the first book of this work a rampart, on the one hand against the puritan school who shunned the light of nature as a deceitful meteor; and on the other against that immoral philosophy which, displayed in the dark precepts of Machiavel, or lurking in the desultory sallies of Montaigne, and not always rejected by writers of more apparent seriousness, threatened to destroy the sense of intrinsic distinctions in the quality of actions, and to convert the maxims of state-craft and dissembling policy into the rule of life and manners. Nothing perhaps is more striking to a reader of the _Ecclesiastical Polity_ than the constant and almost excessive predilection of Hooker for those liberal principles of civil government, which are sometimes so just and always so attractive. Upon these subjects, his theory absolutely coincides with that of Locke. The origin of government, both in right and in fact, he explicitly derives from a primary contract; "without which consent, there were no reason that one should take upon him to be lord or judge over another; because, although there be, according to the opinion of some very great and judicious men, a kind of natural right in the noble, wise, and virtuous, to govern them which are of servile disposition; nevertheless, for manifestation of this their right, and men's more peaceable contentment on both sides, the assent of them who are to be governed seemeth necessary." "The lawful power," he observes elsewhere, "of making laws to command whole politic societies of men, belongeth so properly unto the same entire societies, that for any prince or potentate of what kind soever upon earth to exercise the same of himself, and not either by express commission immediately and personally received from God, or else by authority received at first from their consent upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not, therefore, which public approbation hath not made so. But approbation not only they give, who personally declare their assent by voice, sign, or act; but also when others do it in their names, by right originally, at the least, derived from them. As in parliaments, councils, and the like assemblies, although we be not personally ourselves present, notwithstanding our assent is by reason of other agents there in our behalf. And what we do by others, no reason but that it should stand as our deed, no less effectually to bind us, than if ourselves had done it in person." And in another place still more peremptorily: "Of this thing no man doubteth, namely, that in all societies, companies, and corporations, what severally each shall be bound unto, it must be with all their assents ratified. Against all equity it were that a man should suffer detriment at the hands of men, for not observing that which he never did either by himself or others mediately or immediately agree unto." These notions respecting the basis of political society, so far unlike what prevailed among the next generation of churchmen, are chiefly developed and dwelt upon in Hooker's concluding book, the eighth; and gave rise to a rumour, very sedulously propagated soon after the time of its publication, and still sometimes repeated, that the posthumous portion of his work had been interpolated or altered by the puritans.[357] For this surmise, however, I am persuaded that there is no foundation. The three latter books are doubtless imperfect, and it is possible that verbal changes may have been made by their transcribers or editors; but the testimony that has been brought forward to throw a doubt over their authenticity consists in those vague and self-contradictory stories, which gossiping compilers of literary anecdote can easily accumulate; while the intrinsic evidence arising from the work itself, on which, in this branch of criticism, I am apt chiefly to rely, seems altogether to repel every suspicion. For not only the principles of civil government, presented in a more expanded form by Hooker in the eighth book, are precisely what he laid down in the first; but there is a peculiar chain of consecutive reasoning running through it, wherein it would be difficult to point out any passages that could be rejected without dismembering the context. It was his business in this part of the _Ecclesiastical Polity_, to vindicate the queen's supremacy over the church: and this he has done by identifying the church with the commonwealth; no one, according to him, being a member of the one who was not also a member of the other. But as the constitution of the Christian church, so far as the laity partook in its government, by choice of pastors or otherwise, was undeniably democratical, he laboured to show, through the medium of the original compact of civil society, that the sovereign had received this, as well as all other powers, at the hands of the people. "Laws being made among us," he affirms, "are not by any of us so taken or interpreted, as if they did receive their force from power which the prince doth communicate unto the parliament, or unto any other court under him, but from power which the whole body of the realm being naturally possessed with, hath by free and deliberate assent derived unto him that ruleth over them so far forth as hath been declared; so that our laws made concerning religion do take originally their essence from the power of the whole realm and church of England." In this system of Hooker and Locke, for it will be obvious to the reader that their principles were the same, there is much, if I am not mistaken, to disapprove. That no man can be justly bound by laws which his own assent has not ratified, appears to me a position incompatible with the existence of society in its literal sense, or illusory in the sophistical interpretations by which it is usual to evade its meaning. It will be more satisfactory and important to remark the views which this great writer entertained of our own constitution, to which he frequently and fearlessly appeals, as the standing illustration of a government restrained by law. "I cannot choose," he says, "but commend highly their wisdom, by whom the foundation of the commonwealth hath been laid; wherein though no manner of person or cause be unsubject unto the king's power, yet so is the power of the king over all, and in all limited, that unto all his proceedings the law itself is a rule. The axioms of our regal government are these: 'Lex facit regem'--the king's grant of any favour made contrary to the law is void;-'Rex nihil potest nisi quod jure potest'--what power the king hath, he hath it by law: the bounds and limits of it are known, the entire community giveth general order by law, how all things publicly are to be done; and the king, as the head thereof, the highest in authority over all, causeth, according to the same law, every particular to be framed and ordered thereby. The whole body politic maketh laws, which laws give power unto the king; and the king having bound himself to use according to law that power, it so falleth out, that the execution of the one is accomplished by the other." These doctrines of limited monarchy recur perpetually in the eighth book; and though Hooker, as may be supposed, does not enter upon the perilous question of resistance, and even intimates that he does not see how the people can limit the extent of power once granted, unless where it escheats to them, yet he positively lays it down, that usurpers of power, that is, lawful rulers arrogating more than the law gives to them, cannot in conscience bind any man to obedience. It would perhaps have been a deviation from my subject to enlarge so much on these political principles in a writer of any later age, when they had been openly sustained in the councils of the nation. But as the reigns of the Tudor family were so inauspicious to liberty that some have been apt to imagine its recollection to have been almost effaced, it becomes of more importance to show that absolute monarchy was, in the eyes of so eminent an author as Hooker, both pernicious in itself, and contrary to the fundamental laws of the English commonwealth. Nor would such sentiments, we may surely presume, have been avowed by a man of singular humility, and whom we might charge with somewhat of an excessive deference to authority, unless they had obtained more currency, both among divines and lawyers, than the complaisance of courtiers in these two professions might lead us to conclude; Hooker being not prone to deal in paradoxes, nor to borrow from his adversaries that sturdy republicanism of the school of Geneva which had been their scandal. I cannot indeed but suspect that his whig principles, in the last book, are announced with a temerity that would have startled his superiors; and that its authenticity, however called in question, has been better preserved by the circumstance of a posthumous publication than if he had lived to give it to the world. Whitgift would probably have induced him to suppress a few passages incompatible with the servile theories already in vogue. It is far more usual that an author's genuine sentiments are perverted by means of his friends and patrons than of his adversaries. _Spoliation of church revenues._--The prelates of the English church, while they inflicted so many severities on others, had not always cause to exult in their own condition. From the time when Henry taught his courtiers to revel in the spoil of monasteries, there had been a perpetual appetite for ecclesiastical possessions. Endowed by a prodigal superstition with pomp and wealth beyond all reasonable measure, and far beyond what the new system of religion appeared to prescribe, the church of England still excited the covetousness of the powerful, and the scandal of the austere.[358] I have mentioned in another place how the bishoprics were impoverished in the first reformation under Edward VI. The catholic bishops who followed made haste to plunder, from a consciousness that the goods of their church were speedily to pass into the hands of heretics.[359] Hence the alienation of their estates had gone so far that in the beginning of Elizabeth's reign statutes were made, disabling ecclesiastical proprietors from granting away their lands, except on leases for three lives, or twenty-one years.[360] But an unfortunate reservation was introduced in favour of the Crown. The queen, therefore, and her courtiers, who obtained grants from her, continued to prey upon their succulent victim. Few of her council imitated the noble disinterestedness of Walsingham, who spent his own estate in her service, and left not sufficient to pay his debts. The documents of that age contain ample proofs of their rapacity. Thus Cecil surrounded his mansion-house at Burleigh with estates, once belonging to the see of Peterborough. Thus Hatton built his house in Holborn on the Bishop of Ely's garden. Cox, on making resistance to this spoliation, received a singular epistle from the queen.[361] This bishop, in consequence of such vexations, was desirous of retiring from the see before his death. After that event, Elizabeth kept it vacant eighteen years. During this period we have a petition to her from Lord Keeper Puckering, that she would confer it on Scambler, Bishop of Norwich, then eighty-eight years old, and notorious for simony, in order that he might give him a lease of part of the lands.[362] These transactions denote the mercenary and rapacious spirit which leavened almost all Elizabeth's courtiers. The bishops of this reign do not appear, with some distinguished exceptions, to have reflected so much honour on the established church as those who attach a superstitious reverence to the age of the reformation are apt to conceive. In the plunder that went forward, they took good care of themselves. Charges against them of simony, corruption, covetousness, and especially destruction of their church estates for the benefit of their families, are very common--sometimes no doubt unjust, but too frequent to be absolutely without foundation.[363] The council often wrote to them, as well as concerning them, with a sort of asperity which would astonish one of their successors. And the queen never restrained herself in treating them on any provocation with a good deal of rudeness, of which I have just mentioned an egregious example.[364] In her speech to parliament on closing the session of 1584, when many complaints against the rulers of the church had rung in her ears, she told the bishops that if they did not amend what was wrong, she meant to depose them.[365] For there seems to have been no question in that age but that this might be done by virtue of the Crown's supremacy. The church of England was not left by Elizabeth in circumstances that demanded applause for the policy of her rulers. After forty years of constantly aggravated molestation of the nonconforming clergy, their numbers were become greater, their popularity more deeply rooted, their enmity to the established order more irreconcilable. It was doubtless a problem of no slight difficulty, by what means so obstinate and opinionated a class of sectaries could have been managed; nor are we perhaps, at this distance of time, altogether competent to decide upon the fittest course of policy in that respect.[366] But it is manifest that the obstinacy of bold and sincere men is not to be quelled by any punishments that do not exterminate them, and that they were not likely to entertain a less conceit of their own reason when they found no arguments so much relied on to refute it as that of force. Statesmen invariably take a better view of such questions than churchmen; and we may well believe that Cecil and Walsingham judged more sagaciously than Whitgift and Aylmer. The best apology that can be made for Elizabeth's tenaciousness of those ceremonies which produced this fatal contention I have already suggested, without much express authority from the records of that age; namely, the justice and expediency of winning over the catholics to conformity, by retaining as much as possible of their accustomed rites. But in the latter period of the queen's reign, this policy had lost a great deal of its application; or rather the same principle of policy would have dictated numerous concessions in order to satisfy the people. It appears by no means unlikely that, by reforming the abuses and corruption of the spiritual courts, by abandoning a part of their jurisdiction, so heterogeneous and so unduly obtained, by abrogating obnoxious and at best frivolous ceremonies, by restraining pluralities of benefices, by ceasing to discountenance the most diligent ministers, and by more temper and disinterestedness in their own behaviour, the bishops would have palliated, to an indefinite degree, that dissatisfaction with the established scheme of polity, which its want of resemblance to that of other protestant churches must more or less have produced. Such a reformation would at least have contented those reasonable and moderate persons who occupy sometimes a more extensive ground between contending factions than the zealots of either are willing to believe or acknowledge. _General remarks._--I am very sensible that such freedom as I have used in this chapter cannot be pleasing to such as have sworn allegiance to either the Anglican or the puritan party; and that even candid and liberal minds may be inclined to suspect that I have not sufficiently admitted the excesses of one side to furnish an excuse for those of the other. Such readers I would gladly refer to Lord Bacon's "Advertisement touching the Controversies of the Church of England;" a treatise written under Elizabeth, in that tone of dispassionate philosophy which the precepts of Burleigh sown in his own deep and fertile mind had taught him to apply. This treatise, to which I did not turn my attention in writing the present chapter, appears to coincide in every respect with the views it displays. If he censures the pride and obstinacy of the puritan teachers, their indecent and libellous style of writing, their affected imitation of foreign churches, their extravagance of receding from everything formerly practised, he animadverts with no less plainness on the faults of the episcopal party, on the bad example of some prelates, on their peevish opposition to every improvement, their unjust accusations, their contempt of foreign churches, their persecuting spirit.[367] _Letter of Walsingham in defence of the queen's government._--Yet that we may not deprive this great queen's administration, in what concerned her dealings with the two religious parties opposed to the established church, of what vindication may best be offered for it, I will refer the reader to a letter of Sir Francis Walsingham, written to a person in France, after the year 1580.[368] It is a very able apology for her government; and if the reader should detect, as he doubtless may, somewhat of sophistry in reasoning, and of mis-statement in matter of fact, he will ascribe both one and the other to the narrow spirit of the age with respect to civil and religious freedom, or to the circumstances of the writer, an advocate whose sovereign was his client. FOOTNOTES: [266] Sleidan, _Hist. de la Réformation_ (par Courayer), ii. 74. [267] Strype's _Cranmer_, 354. [268] These transactions have been perpetuated by a tract, entitled "Discourse of the Troubles at Frankfort," first published in 1575, and reprinted in the well-known collection entitled _The Phoenix_. It is fairly and temperately written, though with an avowed bias towards the puritan party. Whatever we read in any historian on the subject, is derived from this authority; but the refraction is of course very different through the pages of Collier and of Neal. [269] Strype, ii. 1. There was a Lutheran party at the beginning of her reign, to which the queen may be said to have inclined, not altogether from religion, but from policy. _Id._ i. 53. Her situation was very hazardous; and in order to connect herself with sincere allies, she had thoughts of joining the Smalcaldic league of the German princes, whose bigotry would admit none but members of the Augsburg confession. Jewel's letters to Peter Martyr, in the appendix to Burnet's third volume, throw considerable light on the first two years of Elizabeth's reign; and show that famous prelate to have been what afterwards would have been called a precisian or puritan. He even approved a scruple Elizabeth entertained about her title of head of the church, as appertaining only to Christ. But the unreasonableness of the discontented party, and the natural tendency of a man who has joined the side of power to deal severely with those he has left, made him afterwards their enemy. [270] Roods and relics accordingly were broken to pieces and burned throughout the kingdom, of which Collier makes loud complaint. This, Strype says, gave much offence to the catholics; and it was not the most obvious method of inducing them to conform. [271] Burnet, iii. Appendix, 290; Strype's _Parker_, 46. [272] Quantum auguror, non scribam ad te posthac episcopus. Eo enim jam res pervenit, ut aut cruces argenteæ et stanneæ, quas nos ubique confregimus, restituendæ sint, aut episcopatus relinquendi. Burnet, 294. Sandys writes, that he had nearly been deprived for expressing himself warmly against images. _Id._ 296. Other proofs of the text may be found in the same collection, as well as in Strype's _Annals_, and his _Life of Parker_. Even Parker seems, on one occasion, to have expected the queen to make such a retrograde movement in religion as would compel them all to disobey her. _Life of Parker_, Appendix, 29; a very remarkable letter. [273] Strype's _Parker_, 310. The archbishop seems to disapprove this as inexpedient, but rather coldly; he was far from sharing the usual opinions on this subject. A puritan pamphleteer took the liberty to name the queen's chapel as "the pattern and precedent of all superstition." Strype's _Annals_, i. 471. [274] Burnet, ii. 395. [275] One of the injunctions to the visitors of 1559, reciting the offence and slander to the church that had arisen by lack of discreet and sober behaviour in many ministers, both in choosing of their wives, and in living with them, directs that no priest or deacon shall marry without the allowance of the bishops, and two justices of the peace, dwelling near the woman's abode, nor without the consent of her parents or kinsfolk, or, for want of these, of her master or mistress, on pain of not being permitted to exercise the ministry, or hold any benefice; and that the marriages of bishops should be approved by the metropolitan, and also by commissioners appointed by the queen. _Somers Tracts_, i. 65; Burnet, ii. 398. It is reasonable to suppose, that when a host of low-bred and illiterate priests were at once released from the obligation to celibacy, many of them would abuse their liberty improvidently, or even scandalously; and this probably had increased Elizabeth's prejudice against clerical matrimony. But I do not suppose that this injunction was ever much regarded. Some time afterwards (Aug. 1561) she put forth another extraordinary injunction, that no member of a college or cathedral should have his wife living within its precincts, under pain of forfeiting all his preferments. Cecil sent this to Parker, telling him at the same time that it was with great difficulty he had prevented the queen from altogether forbidding the marriage of priests. _Life of P._ 107. And the archbishop himself says, in the letter above mentioned, "I was in a horror to hear such words to come from her mild nature and Christianly learned conscience, as she spake concerning God's holy ordinance and institution of matrimony." [276] Sandys writes to Parker, April 1559, "The queen's majesty will wink at it, but not stablish it by law, which is nothing else but to bastard our children." And decisive proofs are brought by Strype, that the marriages of the clergy were not held legal, in the first part at least of the queen's reign. Elizabeth herself, after having been sumptuously entertained by the archbishop at Lambeth, took leave of Mrs. Parker with the following courtesy: "_Madam_ (the style of a married lady) I may not call you; _mistress_ (the appellation at that time of an unmarried woman) I am loth to call you; but, however, I thank you for your good cheer." The lady is styled, in deeds made while her husband was archbishop, _Parker_, alias _Harleston_; which was her maiden name. And she dying before her husband, her brother is called her heir-at-law, though she left children. But the archbishop procured letters of legitimation, in order to render them capable of inheritance. _Life of Parker_, 511. Others did the same. _Annals_, i. 8. Yet such letters were, I conceive, beyond the queen's power to grant, and could not have obtained any regard in a court of law. In the diocese of Bangor, it was usual for the clergy, some years after Elizabeth's accession, to pay the bishop for a licence to keep a concubine. Strype's _Parker_, 203. [277] Burnet, iii. 305. [278] Jewel's letters to Bullinger, in Burnet, are full of proofs of his dissatisfaction; and those who feel any doubts may easily satisfy themselves from the same collection, and from Strype as to the others. The current opinion, that these scruples were imbibed during the banishment of our reformers, must be received with great allowance. The dislike to some parts of the Anglican ritual had begun at home; it had broken out at Frankfort; it is displayed in all the early documents of Elizabeth's reign by the English divines, far more warmly than by their Swiss correspondents. Grindal, when first named to the see of London, had his scruples about wearing the episcopal habits removed by Peter Martyr. Strype's _Grindal_, 29. [279] It was proposed on this occasion to abolish all saints' days, to omit the cross in baptism, to leave kneeling at the communion to the ordinary's discretion, to take away organs, and one or two more of the ceremonies then chiefly in dispute. Burnet, iii. 303 and Append. 319; Strype, i. 297, 299. Nowell voted in the minority. It can hardly be going too far to suppose that some of the majority were attached to the old religion. [280] Jewel, one of these visitors, writes afterwards to Martyr: "Invenimus ubique animos multitudinis satis propensos ad religionem; ibi etiam, ubi omnia putabantur fore difficillima.... Si quid erat obstinatæ malitiæ, id totum erat in presbyteris, illis præsertim, qui aliquando stetissent à nostrâ sententiâ." Burnet, iii. Append. 289. The common people in London and elsewhere, Strype says, took an active part in demolishing images; the pleasure of destruction, I suppose, mingling with their abhorrence of idolatry. And during the conferences held in Westminster Abbey, Jan. 1559, between the catholic and protestant divines, the populace who had been admitted as spectators, testified such disapprobation of the former, that they made it a pretext for breaking off the argument. There was indeed such a tendency to anticipate the government in reformation, as necessitated a proclamation, Dec. 28, 1558, silencing preachers on both sides. Mr. Butler says, from several circumstances it is evident that a great majority of the nation then inclined to the Roman catholic religion. _Mem. of Eng. Catholics_, i. 146. But his proofs of this are extremely weak. The attachment he supposes to have existed in the laity towards their pastors may well be doubted; it could not be founded on the natural grounds of esteem; and if Rishton, the continuator of Sanders de Schismate, whom he quotes, says that one-third of the nation was protestant, we may surely double the calculation of so determined a papist. As to the influence which Mr. B. alleges the court to have employed in elections for Elizabeth's first parliament, the argument would equally prove that the majority was protestant under Mary, since she had recourse to the same means. The whole tenor of historical documents in Elizabeth's reign proves that the catholics soon became a minority, and still more among the common people than the gentry. The north of England, where their strength lay, was in every respect the least important part of the kingdom. Even according to Dr. Lingard, who thinks fit to claim half the nation as catholic in the middle of this reign, the number of recusants certified to the council under 23 Eliz. c. 1, amounted only to fifty thousand; and, if we can trust the authority of other lists, they were much fewer before the accession of James. This writer, I may observe in passing, has, through haste and thoughtlessness, misstated a passage he cites from Murden's _State Papers_, p. 605, and confounded the persons suspected for religion in the city of London, about the time of the Armada, with the whole number of men fit for arms; thus making the former amount to seventeen thousand and eighty-three. Mr. Butler has taken up so paradoxical a notion on this subject, that he literally maintains the catholics to have been at least one half of the people at the epoch of the gunpowder plot. Vol. i. p. 295. We should be glad to know at what time he supposes the grand apostasy to have been consummated. Cardinal Bentivoglio gives a very different account; reckoning the real catholics, such as did not make profession of heresy, at only a thirtieth part of the whole; though he supposes that four-fifths might become such, from secret inclination or general indifference, if it were once established. _Opere di Bentivoglio_, p. 83, edit. Paris, 1645. But I presume neither Mr. Butler nor Dr. Lingard would own these _adiaphorists_. The latter writer, on the other hand, reckons the Hugonots of France, soon after 1560, at only one-hundredth part of the nation, quoting for this Castelnau, a useful memoir writer, but no authority on a matter of calculation. The stern spirit of Coligni, _atrox animus Catonis_, rising above all misfortune, and unconquerable, except by the darkest treachery, is sufficiently admirable without reducing his party to so miserable a fraction. The Calvinists at this time are reckoned by some at one-fourth, but more frequently at one-tenth, of the French nation. Even in the beginning of the next century, when proscription and massacre, lukewarmness and self-interest, had thinned their ranks, they are estimated by Bentivoglio (_ubi supra_) at one-fifteenth. [281] Strype's _Parker_, 152, 153; Collier, 508. In the Lansdowne Collection, vol. viii. 47, is a letter from Parker, Apr. 1565, complaining of Turner, dean of Wells, for having made a man do penance for adultery in a square cap. [282] Strype's _Parker_, 157, 173. [283] This apprehension of Elizabeth's taking a disgust to protestantism is intimated in a letter of Bishop Cox. Strype's _Parker_, 229. [284] Parker sometimes declares himself willing to see some indulgence as to the habits and other matters; but, the queen's commands being peremptory, he had thought it his duty to obey them, though forewarning her that the puritan ministers would not give way (225, 227). This, however, is not consistent with other passages, where he appears to importune the queen to proceed. Her wavering conduct, partly owing to caprice, partly to insincerity, was naturally vexatious to a man of his firm and ardent temper. Possibly he might dissemble a little in writing to Cecil, who was against driving the puritans to extremities. But, on the review of his whole behaviour, he must be reckoned, and always has been reckoned, the most severe disciplinarian of Elizabeth's first hierarchy; though more violent men came afterwards. [285] Strype's _Annals_, 416; _Parker_, 159. Some years after, these advertisements obtained the queen's sanction, and got the name of Articles and Ordinances. _Id._ 160. [286] Strype's _Annals_, 416, 430; _Life of Parker_, 184. Sampson had refused a bishopric on account of these ceremonies. Burnet, iii. 292. [287] _Life of Parker_, 214. Strype says (p. 223) that the suspended ministers preached again after a little time by connivance. [288] Jewel is said to have become strict in enforcing the use of the surplice. _Annals_, 421. [289] Strype's _Annals_, i. 423, ii. 316; _Life of Parker_, 243, 348; Burnet, iii. 310, 325, 337. Bishops Grindal and Horn wrote to Zurich, saying plainly, it was not their fault that the habits were not laid aside, with the cross in baptism, the use of organs, baptism by women, etc. P. 314. This last usage was much inveighed against by the Calvinists, because it involved a theological tenet differing from their own, as to the necessity of baptism. In Strype's _Annals_, 501, we have the form of an oath taken by all mid-wives, to exercise their calling without sorcery or superstition, and to baptize with the proper words. It was abolished by James I. Beza was more dissatisfied than the Helvetic divines with the state of the English church (_Annals_, i. 452; Collier, 503); but dissuaded the puritans from separation, and advised them rather to comply with the ceremonies. _Id._ 511. [290] Strype's _Life of Parker_, 242; _Life of Grindal_, 114. [291] Burnet, iii. 316; Strype's _Parker_, 155 _et alibi_. [292] _Id._ 226. The church had but two or three friends, Strype says, in the council about 1572, of whom Cecil was the chief. _Id._ 388. [293] Burnet says, on the authority of the visitors' reports, that out of 9400 beneficed clergymen, not more than about 200 refused to conform. This caused for some years just apprehensions of the danger into which religion was brought by their retaining their affections to the old superstition; "so that," he proceeds, "if Queen Elizabeth had not lived so long as she did, till all that generation was dead, and a new set of men better educated and principled were grown up and put in their rooms; and if a prince of another religion had succeeded before that time, they had probably turned about again to the old superstition as nimbly as they had done before in Queen Mary's days." Vol. ii. p. 401. It would be easy to multiply testimonies out of Strype, to the papist inclinations of a great part of the clergy in the first part of this reign. They are said to have been sunk in superstition and looseness of living. _Annals_, i. 166. [294] Strype's _Annals_, 138, 177; Collier, 436, 465. This seems to show that more churches were empty by the desertion of popish incumbents than the foregoing note would lead us to suppose. I believe that many went off to foreign parts from time to time, who had complied in 1559; and others were put out of their livings. The Roman catholic writers make out a longer list than Burnet's calculation allows. It appears from an account sent in to the privy council by Parkhurst, Bishop of Norwich, in 1562, that in his diocese more than one-third of the benefices were vacant. _Annals_, i. 323. But in Ely, out of 152 cures only 52 were served in 1560. _L. of Parker_, 72. [295] Parker wrote in 1561 to the bishops of his province, enjoining them to send him certificates of the names and qualities of all their clergy; one column, in the form of certificate, was for learning: "And this," Strype says, "was commonly set down; Latinè aliqua verba intelligit, Latinè utcunque intelligit; Latinè pauca intelligit," etc. Sometimes, however, we find doctus. _L. of Parker_, 95. But if the clergy could not read the language in which their very prayers were composed, what other learning or knowledge could they have? Certainly none; and even those who had gone far enough to study the school logic and divinity, do not deserve a much higher place than the wholly uninstructed. The Greek tongue was never _generally_ taught in the universities or public schools till the Reformation, and perhaps not so soon. Since this note was written, a letter of Gibson has been published in Pepys's _Memoirs_, vol. ii. p. 154, mentioning a catalogue he had found of the clergy in the archdeaconry of Middlesex, A.D. 1563, with their qualifications annexed. Three only are described as docti Latinè et Græcè; twelve are called docti simply; nine, Latinè docti; thirty-one, Latinè mediocriter intelligentes; forty-two, Latinè perperam, utcunque aliquid, pauca verba, etc., intelligentes; seventeen are non docti or indocti. If this was the case in London, what can we think of more remote parts? [296] In the struggle made for popery at the queen's accession, the lower house of convocation sent up to the bishops five articles of faith, all strongly catholic. These had previously been transmitted to the two universities, and returned with the hands of the greater part of the doctors to the first four. The fifth they scrupled, as trenching too much on the queen's temporal power. Burnet, ii. 388, iii. 269. Strype says, the universities were so addicted to popery that for some years few educated in them were ordained. _Life of Grindal_, p. 50. And Wood's _Antiquities of the University of Oxford_ contain many proofs of its attachment to the old religion. In Exeter College, as late as 1578, there were not above four protestants out of eighty, "all the rest secret or open Roman affectionaries." These chiefly came from the west, "where popery greatly prevailed, and the gentry were bred up in that religion." Strype's _Annals_, ii. 539. But afterwards, Wood complains, "through the influence of Humphrey and Reynolds (the latter of whom became divinity lecturer on Secretary Walsingham's foundation in 1586), the disposition of the times, and the long continuance of the Earl of Leicester, the principal patron of the puritanical faction, in the place of Chancellor of Oxford, the face of the university was so much altered that there was little to be seen in it of the church of England, according to the principles and positions upon which it was first reformed." _Hist. of Oxford_, vol. ii. p. 228. Previously, however, to this change towards puritanism, the university had not been Anglican, but popish; which Wood liked much better than the first, and nearly as well as the second. A letter from the University of Oxford to Elizabeth on her accession (Hearne's edition of Roper's _Life of More_, p. 173) shows the accommodating character of these academies. They extol Mary as an excellent queen, but are consoled by the thought of her excellent successor. One sentence is curious: "Cum _patri_, _fratri_, _sorori_, nihil fuerit republicâ carius, _religione optatius_, verâ gloriâ dulcius; cum in hâc familiâ hæ laudes floruerint, vehementer confidimus, etc., quæ ejusdem stirpis sis, easdem cupidissime prosecuturam." It was a singular strain of complaisance to praise Henry's, Edward's, and Mary's religious sentiments in the same breath; but the queen might at least learn this from it, that whether she fixed on one of their creeds, or devised a new one for herself, she was sure of the acquiescence of this ancient and learned body. A preceding letter to Cardinal Pole, in which the times of Henry and Edward are treated more cavalierly, seems by the style, which is very elegant, to have been the production of the same pen. [297] The fellows and scholars of St. John's College, to the number of three hundred, threw off their hoods and surplices, in 1565, without any opposition from the master, till Cecil, as chancellor of the university, took up the matter, and insisted on their conformity to the established regulations. This gave much dissatisfaction to the university; not only the more intemperate party, but many heads of colleges and grave men, among whom we are rather surprised to find the name of Whitgift, interceding with their chancellor for some mitigation as to these unpalatable observances. Strype's _Annals_, i. 441; _Life of Parker_, 194. Cambridge had, however, her catholics, as Oxford had her puritans, of whom Dr. Caius, founder of the college that bears his name, was among the most remarkable. _Id._ 200. The Chancellors of Oxford and Cambridge, Leicester and Cecil, kept a very strict hand over them, especially the latter, who seems to have acted as paramount visitor over every college, making them reverse any act which he disapproved. Strype, _passim_. [298] Strype's _Annals_, i. 583; _Life of Parker_, 312, 347; _Life of Whitgift_, 27. [299] Cartwright's _Admonition_, quoted in Neal's _Hist. of Puritans_, i. 88. [300] Madox's _Vindication of Church of England against Neal_, p. 122. This writer quotes several very extravagant passages from Cartwright, which go to prove irresistibly that he would have made no compromise short of the overthrow of the established church. P. 111, etc. "As to you, dear brethren," is said in a puritan tract of 1570, "whom God hath called into the brunt of the battle, the Lord keep you constant, that ye yield neither to toleration, neither to any other subtle persuasions of dispensations and licences, which were to fortify their Romish practices; but, as you fight the Lord's fight, be valiant." Madox, p. 287. [301] These principles had already been broached by those who called Calvin master; he had himself become a sort of prophet-king at Geneva. And Collier quotes passages from Knox's _Second Blast_, inconsistent with any government, except one slavishly subservient to the church. P. 444. The nonjuring historian holds out the hand of fellowship to the puritans he abhors, when they preach up ecclesiastical independence. Collier liked the royal supremacy as little as Cartwright; and in giving an account of Bancroft's attack on the nonconformists for denying it, enters upon a long discussion in favour of an absolute emancipation from the control of laymen. P. 610. He does not even approve the determination of the judges in Cawdrey's case (5 Coke's Reports), though against the nonconformists, as proceeding on a wrong principle of setting up the state above the church. P. 634. [302] The school of Cartwright were as little disposed as the episcopalians to see the laity fatten on church property. Bancroft, in his famous sermon preached at Paul's Cross in 1588 (p. 24), divides the puritans into the clergy factious, and the lay factious. The former, he says, contend and lay it down in their supplication to parliament in 1585, that things once dedicated to a sacred use ought so to remain for ever, and not to be converted to any private use. The lay, on the contrary, think it enough for the clergy to fare as the apostles did. Cartwright did not spare those who longed to pull down bishoprics for the sake of plundering them, and charged those who held impropriations with sin. Bancroft takes delight in quoting his bitter phrases from the ecclesiastical discipline. [303] The old friends and protectors of our reformers at Zurich, Bullinger and Gualter, however they had favoured the principles of the first nonconformists, write in strong disapprobation of the innovators of 1574. Strype's _Annals_, ii. 316. And Fox, the martyrologist, a refuser to conform, speaks, in a remarkable letter quoted by Fuller in his _Church History_, p. 107, of factiosa illa Puritanorum capita, saying that he is totus ab iis alienus, and unwilling perbacchari in episcopos. The same is true of Bernard Gilpin, who disliked some of the ceremonies, and had subscribed the articles with a reservation, "so far as agreeable to the word of God;" but was wholly opposed to the new reform of church discipline. _Carleton's Life of Gilpin_, and Wordsworth's _Ecclesiastical Biography_, vol. iv. Neal has not reported the matter faithfully. [304] "The puritan," says Persons the jesuit, in 1594, "is more generally favoured throughout the realm with all those which are not of the Roman religion than is the protestant, upon a certain general persuasion, that his profession is the more perfect, especially in great towns, where preachers have made more impression in the artificers and burghers than in the country people. And among the protestants themselves, all those that were less interested in ecclesiastical livings, or other preferments depending of the state, are more affected commonly to the puritans, or easily are to be induced to pass that way for the same reason." Doleman's _Conference about the next Succession to the Crown of England_, p. 242. And again: "The puritan party at home, in England, is thought to be most rigorous of any other, that is to say, most ardent, quick, bold, resolute, and to have a great part of the best captains and soldiers on their side, which is a point of no small moment."--P. 244. I do not quote these passages out of trust in Father Persons, but because they coincide with much besides that has occurred to me in reading, and especially with the parliamentary proceedings of this reign. The following observation will confirm what may startle some readers; that the puritans, or at least those who rather favoured them, had a majority among the protestant gentry in the queen's days. It is agreed on all hands, and is quite manifest, that they predominated in the House of Commons. But that house was composed, as it has ever been, of the principal landed proprietors, and as much represented the general wish of the community when it demanded a further reform in religious matters, as on any other subject. One would imagine, by the manner in which some express themselves, that the discontented were a small faction, who by some unaccountable means, in despite of the government and the nation, formed a majority of all parliaments under Elizabeth and her two successors. [305] Burnet, iii. 335. Pluralities are still the great abuse of the church of England; and the rules on this head are so complicated and unreasonable that scarce any one can remember them. It would be difficult to prove that, with a view to the interests of religion among the people, or of the clergy themselves, taken as a body, any pluralities of benefices with cure of souls ought to remain, except of small contiguous parishes. But with a view to the interests of some hundred well connected ecclesiastics, the difficulty is none at all. [306] D'Ewes, p. 156; _Parliament. Hist._ i. 733, etc. [307] D'Ewes, p. 239; _Parl. Hist._ 790; Strype's _Life of Parker_, 394. In a debate between Cardinal Carvajal and Rockisane, the famous Calixtin archbishop of Prague, at the council of Basle, the former said he would reduce the whole argument to two syllables; Crede. The latter replied he would do the same, and confine himself to two others; Proba. Lenfant makes a very just observation on this: "Si la gravité de l'histoire le permettoit, on diroit avec le comique: C'est tout comme ici. Il y a long tems que le premier de ces mots est le langage de ce qu'on appelle _l'Eglise_, et que le second est le langage de ce qu'on appelle _l'heresie_." _Concile de Basle_, p. 193. [308] Several ministers were deprived, in 1572, for refusing to subscribe the articles. Strype, ii. 186. Unless these were papists, which indeed is possible, their objection must have been to the articles touching discipline; for the puritans liked the rest very well. [309] Neal, 187; Strype's _Parker_, 325. Parker wrote to Lord Burleigh (June 1573), exciting the council to proceed against some of those men who had been called before the star-chamber. "He knew them," he said, "to be cowards"--a very great mistake--"and if they of the privy council gave over, they would hinder her majesty's government more than they were aware, and much abate the estimation of their own authorities," etc. _Id._ p. 421; Cartwright's _Admonition_ was now prohibited to be sold. _Ibid._ [310] Neal, 210. [311] Strype's _Annals_, i. 433. [312] Strype's _Annals_, ii. 219, 232; _Life of Parker_, 461. [313] Strype's _Life of Grindal_, 219, 230, 272. The archbishop's letter to the queen, declaring his unwillingness to obey her requisition, is in a far bolder strain than the prelates were wont to use in this reign, and perhaps contributed to the severity she showed towards him. Grindal was a very honest, conscientious man, but too little of a courtier or statesman for the place he filled. He was on the point of resigning the archbishopric when he died; there had at one time been some thoughts of depriving him. [314] Strype's _Whitgift_, 27 _et alibi_. He did not disdain to reflect on Cartwright for his poverty, the consequence of a scrupulous adherence to his principles. But the controversial writers of every side in the sixteenth century display a want of decency and humanity which even our anonymous libellers have hardly matched. Whitgift was not of much learning, if it be true, as the editors of the _Biographia Britannica_ intimate, that he had no acquaintance with the Greek language. This must seem strange to those who have an exaggerated notion of the scholarship of that age. [315] Strype's _Whitgift_, 115. [316] Neal, 266; Birch's _Memoirs of Elizabeth_, vol. i. p. 42, 47, etc. [317] According to a paper in the appendix to Strype's _Life of Whitgift_, p. 60, the number of conformable ministers in eleven dioceses, not including those of London and Norwich, the strongholds of puritanism, was 786, that of non-compliers 49. But Neal says that 233 ministers were suspended in only six counties, 64 of whom in Norfolk, 60 in Suffolk, 38 in Essex. P. 268. The puritans formed so much the more learned and diligent part of the clergy, that a great scarcity of preachers was experienced throughout this reign, in consequence of silencing so many of the former. Thus in Cornwall, about the year 1578, out of 140 clergymen, not one was capable of preaching. Neal, p. 245. And, in general, the number of those who could not preach, but only read the service, was to the others nearly as four to one; the preachers being a majority only in London. _Id_. p. 320. This may be deemed by some an instance of Neal's prejudice. But that historian is not so ill-informed as they suppose; and the fact is highly probable. Let it be remembered that there existed few books of divinity in English; that all books were, comparatively to the value of money, far dearer than at present; that the majority of the clergy were nearly illiterate, and many of them addicted to drunkenness and low vices; above all, that they had no means of supplying their deficiences by preaching the discourses of others; and we shall see little cause for doubting Neal's statement, though founded on a puritan document. [318] _Life of Whitgift_, 137 _et alibi pluries_; _Annals_, iii. 183. [319] Neal, 274; Strype's _Annals_, iii. 180. The germ of the high commission court seems to have been a commission granted by Mary (Feb. 1557) to certain bishops and others to inquire after all heresies, punish persons misbehaving at church, and such as refused to come thither, either by means of presentments by witness, or any other politic way they could devise; with full power to proceed as their discretions and consciences should direct them; and to use all such means as they could invent, for the searching of the premises, to call witnesses, and force them to make oath of such things as might discover what they sought after. Burnet, ii. 347. But the primary model was the inquisition itself. It was questioned whether the power of deprivation for not reading the common prayer, granted to the high commissioners, were legal; the Act of Uniformity having annexed a much smaller penalty. But it was held by the judges in the case of Cawdrey (5 Coke Reports), that the act did not take away the ecclesiastical jurisdiction and supremacy which had ever appertained to the crown, and by virtue of which it might erect courts with as full spiritual jurisdiction as the archbishops and bishops exercised. [320] Strype's _Whitgift_, 135; and Appendix, 49. [321] _Id._ 157, 160. [322] _Id._ 163, 166 _et alibi_; Birch's _Memoirs_, i. 62. There was said to be a scheme on foot, about 1590, to make all persons in office subscribe a declaration that episcopacy was lawful by the word of God, which Burleigh prevented. [323] Neal, 325, 385. [324] _Id._ 290; Strype's _Life of Aylmer_, p. 59, etc. His biographer is here, as in all his writings, too partial to condemn, but too honest to conceal. [325] Neal, 294. [326] Strype's _Aylmer_, 71. When he grew old, and reflected that a large sum of money would be due from his family, for dilapidations of the palace at Fulham, etc., he literally proposed to sell his bishopric to Bancroft. _Id._ 169. The other, however, waited for his death, and had above £4000 awarded to him; but the crafty old man having laid out his money in land, this sum was never paid. Bancroft tried to get an act of parliament in order to render the real estate liable, but without success. P. 194. [327] _Somers' Tracts_, i. 166. [328] Bacon's Works, i. 532. [329] Birch's _Memoirs_, ii. 146, [330] _Id. ibid._ Burleigh does not shine much in these memoirs; but most of the letters they contain are from the two Bacons, then engaged in the Essex faction, though nephews of the treasurer. [331] The first of Martin Mar-prelate's libels were published in 1588. In the month of November of that year the archbishop is directed by a letter from the council to search for and commit to prison the authors and printers. Strype's _Whitgift_, 288. These pamphlets are scarce; but a few extracts from them may be found in Strype, and other authors. The abusive language of the puritan pamphleteers had begun several years before. Strype's _Annals_, ii. 193. See the trial of Sir Richard Knightley of Northamptonshire for dispersing puritanical libels. _State Trials_, i. 1263. [332] 23 Eliz. c. 2. [333] Penry's protestation at his death is in a style of the most affecting and simple eloquence. _Life of Whitgift_, 409, and Appendix 176. It is a striking contrast to the coarse abuse for which he suffered. The authors of Martin Mar-prelate were never fully discovered; but Penry seems not to deny his concern in it. [334] _State Trials_, 1271. It may be remarked on this as on other occasions, that Udal's trial is evidently published by himself; and a defendant, especially in a political proceeding, is apt to give a partial colour to his own case. _Life of Whitgift_, 314; _Annals of Reformation_, iv. 21; Fuller's _Church History_, 122; Neal, 340. This writer says: "Among the divines who _suffered death_ for the libels above mentioned, was the Rev. Mr. Udal." This is no doubt a splenetic mode of speaking. But Warburton, in his short notes on Neal's history, treats it as a wilful and audacious attempt to impose on the reader; as if the ensuing pages did not let him into all the circumstances. I will here observe that Warburton, in his self-conceit, has paid a much higher compliment to Neal than he intended, speaking of his own comments as "a full confutation (I quote from memory) of that historian's false facts and misrepresentations." But when we look at these, we find a good deal of wit and some pointed remarks, but hardly anything that can be deemed a material correction of facts. Neal's _History of the Puritans_ is almost wholly compiled, as far as this reign is concerned, from Strype, and from a manuscript written by some puritan about the time. It was answered by Madox, afterwards bishop of Worcester, in a _Vindication of the Church of England_, published anonymously in 1733. Neal replied with tolerable success; but Madox's book is still an useful corrective. Both, however, were, like most controversialists, prejudiced men, loving the interests of their respective factions better than truth, and not very scrupulous about misrepresenting an adversary. But Neal had got rid of the intolerant spirit of the puritans, while Madox labours to justify every act of Whitgift and Parker. [335] _Life of Whitgift_, 328. [336] _Id._ 336, 360, 366, Append. 142, 159. [337] _Id._ Append. 135; _Annals_, iv. 52. [338] This predilection for the Mosaic polity was not uncommon among the reformers; Collier quotes passages from Martin Bucer as strong as could well be found in the puritan writings. P. 303. [339] _Life of Whitgift_, p. 61, 333, and Append. 138; _Annals_, iv. 140. As I have not seen the original works in which these tenets are said to be promulgated, I cannot vouch for the fairness of the representation made by hostile pens, though I conceive it to be not very far from the truth. [340] _Ibid_. Madox's _Vindication of the Ch. of Eng. against Neal_, p. 212; Strype's _Annals_, iv. 142. [341] The large views of civil government entertained by the puritans were sometimes imputed to them as a crime by their more courtly adversaries, who reproached them with the writings of Buchanan and Languet. _Life of Whitgift_, 258; _Annals_, iv. 142. [342] See a declaration to this effect, at which no one could cavil, in Strype's _Annals_, iv. 85. The puritans, or at least some of their friends, retaliated this charge of denying the queen's supremacy on their adversaries. Sir Francis Knollys strongly opposed the claims of episcopacy, as a divine institution, which had been covertly insinuated by Bancroft, on the ground of its incompatibility with the prerogative, and urged Lord Burleigh to make the bishops acknowledge they had no superiority over the clergy, except by statute, as the only means to save her majesty from the extreme danger into which she was brought by the machinations of the pope and King of Spain. _Life of Whitgift_, p. 350, 361, 389. He wrote afterwards to Lord Burleigh in 1591, that if he might not speak his mind freely against the power of the bishops, and prove it unlawful, by the laws of this realm, and not by the canon law, he hoped to be allowed to become a private man. This bold letter he desires to have shown to the queen. _Lansdowne Catalogue_, vol. lxviii. 84. [343] D'Ewes, 302; Strype's _Whitgift_, 92, Append. 32. [344] D'Ewes, 339 _et post_; Strype's _Whitgift_, 176, etc., Append. 70. [345] Strype's _Annals_, iii. 228. [346] Strype's _Annals_, iii. 186, 192. Compare Append. 35. [347] Strype's _Whitgift_, 279; _Annals_, iii. 543. [348] _Parl. Hist._ 921. [349] Strype's _Whitgift_, 521, 537, App. 136. The archbishop could not disguise his dislike to the lawyers. "The temporal lawyer," he says in a letter to Cecil, "_whose learning is no learning anywhere but here at home_, being born to nothing, doth by his labour and travel in that barbarous knowledge purchase to himself and his heirs for ever a thousand pounds per annum, and oftentimes much more, whereof there are at this day many examples."--P. 215. [350] Strype's _Whitgift_, and D'Ewes, _passim_. In a convocation held during Grindal's sequestration (1580), proposals for reforming certain abuses in the spiritual courts were considered; but nothing was done in it. Strype's _Grindal_, p. 259, and Appendix, p. 97. And in 1594, a commission to enquire into abuses in the spiritual courts was issued; but whether this were intended _bonâ fide_ or not, it produced no reformation. Strype's _Whitgift_, 419. [351] 35 Eliz. c. 1; _Parl. Hist._ 863. [352] Neal asserts in his summary of the controversy, as it stood in this reign, that the puritans did not object to the office of bishop, provided he was only the head of the presbyters, and acted in conjunction with them. P. 398. But this was in effect to demand everything. For if the office could be so far lowered in eminence, there were many waiting to clip the temporal revenues and dignity in proportion. In another passage, Neal states clearly, if not quite fairly, the main points of difference between the church and nonconforming parties under Elizabeth. P. 147. He concludes with the following remark, which is very true. "Both parties agreed too well in asserting the necessity of an uniformity of public worship, and of calling in the sword of the magistrates for the support and defence of the several principles, which they made an ill use of in their turns, as they could grasp the power into their hands. The standard of uniformity, according to the bishops, was the queen's supremacy and the laws of the land; according to the puritans, the decrees of provincial and national synods, allowed and enforced by the civil magistrate; but neither party were for admitting that liberty of conscience and freedom of profession which is every man's right, as far as is consistent with the peace of the government he lives under." [353] Neal, 253, 386. [354] Strype's _Whitgift_, 414; Neal, 373. Several years before, in 1583, two men called anabaptists, Thacker and Copping, were hanged at the same place on the same statute for denying the queen's ecclesiastical supremacy; the proof of which was their dispersion of Brown's tracts, wherein that was only owned in civil cases. Strype's _Annals_, iii. 186. This was according to the invariable practice of Tudor times: an oppressive and sanguinary statute was first made; and next, as occasion might serve, a construction was put on it contrary to all common sense, in order to take away men's lives. [355] "The discipline of Christ's church," said Cartwright, "that is necessary for all times, is delivered by Christ, and set down in the Holy Scriptures. Therefore the true and lawful discipline is to be fetched from thence, and from thence alone. And that which resteth upon any other foundation ought to be esteemed unlawful and counterfeit." Whitgift, in his answer to Cartwright's _Admonition_, rested the controversy in the main, as Hooker did, on the indifferency of church discipline and ceremony. It was not till afterwards that the defenders of the established order found out that one claim of divine right was best met by another. [356] "If the natural strength of men's wit may by experience and study attain unto such ripeness in the knowledge of things human, that men in this respect may presume to build somewhat upon their judgment; what reason have we to think but that even in matters divine, the like wits, furnished with necessary helps, exercised in scripture with like diligence, and assisted with the grace of Almighty God, may grow unto so much perfection of knowledge, that men shall have just cause, when anything pertinent unto faith and religion is doubted of, the more willingly to incline their minds towards that which the sentence of so grave, wise, and learned in that faculty shall judge most sound? For the controversy is of the weight of such men's judgment," etc. But Hooker's mistake was to exaggerate the weight of such men's judgment; and not to allow enough for their passions and infirmities, the imperfection of their knowledge, their connivance with power, their attachment to names and persons, and all the other drawbacks to ecclesiastical authority. It is well known that the preface to the _Ecclesiastical Polity_ was one of the two books to which James II. ascribed his return into the fold of Rome; and it is not difficult to perceive by what course of reasoning on the positions it contains this was effected. [357] In the life of Hooker prefixed to the edition I use, fol. 1671, I find an assertion of Dr. Barnard, chaplain to Usher, that he had seen a manuscript of the last books of Hooker, containing many things omitted in the printed volume. One passage is quoted, and seems in Hooker's style. But the question is rather with respect to interpolations than omissions. And of the former I see no evidence or likelihood. If it be true, as is alleged, that different manuscripts of the three last books did not agree, if even these disagreements were the result of fraud, why should we conclude that they were corrupted by the puritans rather than the church? In Zouch's edition of Walton's _Life of Hooker_, the reader will find a long and ill digested note on this subject, the result of which has been to convince me that there is no reason to believe any other than verbal changes to have been made in the loose draught which the author left, but that whatever changes were made, it does not appear that the manuscript was ever in the hands of the puritans. The strongest probability, however, of their authenticity is from internal evidence. A late writer has produced a somewhat ridiculous proof of the carelessness with which all editions of the _Ecclesiastical Polity_ have been printed; a sentence having slipped into the text of the seventh book, which makes nonsense, and which he very probably conjectures to have been a marginal memorandum of the author for his own use on revising the manuscript. M'Crie's _Life of Melvil_, vol. i. p. 471. [358] The puritans objected to the title of lord bishops. Sampson wrote a peevish letter to Grindal on this, and received a very good answer. Strype's _Parker_, Append. 178. Parker, in a letter to Cecil, defends it on the best ground; that the bishops hold their lands by barony, and therefore the giving them the title of lords was no irregularity, and nothing more than a consequence of the tenure. Collier, 544. This will not cover our modern _colonial_ bishops, on whom the same title has, without any good reason, been conferred. [359] Strype's _Annals_, i. 159. [360] 1 Eliz. c. 19; 13 Eliz. c. 10; Blackstone's _Commentaries_, vol. ii. c. 28. The exception in favour of the Crown was repealed in the first year of James. [361] It was couched in the following terms:-- "PROUD PRELATE,--You know what you were before I made you what you are: if you do not immediately comply with my request, by G---- I will unfrock you. ELIZABETH." Poor Cox wrote a very good letter before this, printed in Strype's _Annals_, vol. ii. Append. 84. The names of Hatton Garden and Ely Place (Mantua væ miseræ nimium vicina Cremonæ) still bear witness to the encroaching lord keeper, and the elbowed bishop. [362] Strype, iv. 246. See also p. 15 of the same volume. By an act in the first year of James, c. 3, conveyances of bishops' lands to the crown are made void; a concession much to the king's honour. [363] Harrington's "State of the Church," in _Nugæ Antiquæ_, vol. ii. _passim_; Wilkins's _Concilia_, iv. 256; Strype's _Annals_, iii. 620 _et alibi_; _Life of Parker_, 454; _of Whitgift_, 220; _of Aylmer, passim_. Observe the preamble of 13 Eliz. c. 10. It must be admitted, on the other hand, that the gentry, when popishly or puritanically affected, were apt to behave exceedingly ill towards the bishops. At Lambeth and Fulham they were pretty safe; but at a distance they found it hard to struggle with the rudeness and iniquity of the territorial aristocracy; as Sandys twice experienced. [364] Birch's _Memoirs_, i. 48. Elizabeth seems to have fancied herself entitled by her supremacy to dispose of bishops as she pleased, though they did not hold commissions _durante bene placito_, as in her brother's time. Thus she suspended Fletcher, Bishop of London, of her own authority, only for marrying "a fine lady and a widow." Strype's _Whitgift_, 458. And Aylmer, having preached too vehemently against female vanity in dress, which came home to the queen's conscience, she told her ladies that if the bishop held more discourse on such matters, she would fit him for heaven; but he should walk thither without a staff and leave his mantle behind him. Harrington's "State of the Church," in _Nugæ Antiquæ_, i. 170; see too p. 217. It will of course not appear surprising that Hutton, Archbishop of York, an exceedingly honest prelate, having preached a bold sermon before the queen, urging her to settle the succession, and pointing strongly towards Scotland, received a sharp message. P. 250. [365] D'Ewes, 328. [366] Collier says (p. 586) on Heylin's authority, that Walsingham offered the puritans, about 1583, in the queen's name, to give up the ceremony of kneeling at the communion, the cross in baptism, and the surplice; but that they answered, "ne ungulam quidem esse relinquendam." But I am not aware of any better testimony to the fact; and it is by no means agreeable to the queen's general conduct. [367] Bacon, ii. 375. See also another paper concerning the pacification of the church, written under James, p. 387. "The wrongs," he says, "of those which are possessed of the government of the church towards the other, may hardly be dissembled or excused."--P. 382. Yet Bacon was never charged with affection for the puritans. In truth, Elizabeth and James were personally the great support of the high church interest; it had few real friends among their counsellors. [368] Burnet, ii. 418; Cabala, part ii. 38 (4to edition). Walsingham grounds the queen's proceedings upon two principles: the one, that "consciences are not to be forced, but to be won and reduced by force of truth, with the aid of time, and use of all good means of instruction and persuasion;" the other, that "cases of conscience, when they exceed their bounds, and grow to be matter of faction, lose their nature; and that sovereign princes ought distinctly to punish their practices and contempt, though coloured with the pretence of conscience and religion." Bacon has repeated the same words, as well as some more of Walsingham's letter, in his observations on the libel on Lord Burleigh, i. 522. And Mr. Southey (_Book of the Church_, ii. 291) seems to adopt them as his own. Upon this it may be observed; first, that they take for granted the fundamental sophism of religious intolerance, namely, that the civil magistrate, or the church he supports, is not only in the right, but so clearly in the right, that no honest man, if he takes time and pains to consider the subject, can help acknowledging it: secondly, that, according to the principles of Christianity as admitted on each side, it does not rest in an esoteric persuasion, but requires an exterior profession, evidenced both by social worship, and by certain positive rites; and that the marks of this profession, according to the form best adapted to their respective ways of thinking, were as incumbent upon the catholic and puritan, as they had been upon the primitive church: nor were they more chargeable with faction, or with exceeding the bounds of conscience, when they persisted in the use of them, notwithstanding any prohibitory statute, than the early Christians. The generality of statesmen, and churchmen themselves not unfrequently, have argued upon the principles of what, in the seventeenth century, was called Hobbism, towards which the Erastian system, which is that of the church of England, though excellent in some points of view, had a tendency to gravitate; namely, that civil and religious allegiance are so necessarily connected, that it is the subject's duty to follow the dictates of the magistrate in both alike. And this received some countenance from the false and mischievous position of Hooker, that the church and commonwealth are but different denominations of the same society. Warburton has sufficiently exposed the sophistry of this theory; though I do not think him equally successful in what he substitutes for it. CHAPTER V ON THE CIVIL GOVERNMENT OF ELIZABETH The subject of the two last chapters, I mean the policy adopted by Elizabeth for restricting the two religious parties which from opposite quarters resisted the exercise of her ecclesiastical prerogatives, has already afforded us many illustrations of what may more strictly be reckoned the constitutional history of her reign. The tone and temper of her administration have been displayed in a vigilant execution of severe statutes, especially towards the catholics, and sometimes in stretches of power beyond the law. And as Elizabeth had no domestic enemies or refractory subjects who did not range under one or other of these two sects, and little disagreement with her people on any other grounds, the ecclesiastical history of this period is the best preparation for our enquiry into the civil government. In the present chapter I shall first offer a short view of the practical exercise of government in this reign, and then proceed to show how the queen's high assumptions of prerogative were encountered by a resistance in parliament, not quite uniform, but insensibly becoming more vigorous. Elizabeth ascended the throne with all the advantages of a very extended authority. Though the jurisdiction actually exerted by the court of star-chamber could not be vindicated according to statute-law, it had been so well established as to pass without many audible murmurs. Her progenitors had intimidated the nobility; and if she had something to fear at one season from this order, the fate of the Duke of Norfolk and of the rebellious earls in the north put an end for ever to all apprehension from the feudal influence of the aristocracy. There seems no reason to believe that she attempted a more absolute power than her predecessors; the wisdom of her counsellors, on the contrary, led them generally to shun the more violent measures of the late reigns; but she certainly acted upon many of the precedents they had bequeathed her, with little consideration of their legality. Her own remarkable talents, her masculine intrepidity, her readiness of wit and royal deportment, which the bravest men unaffectedly dreaded, her temper of mind, above all, at once fiery and inscrutably dissembling, would in any circumstances have ensured her more real sovereignty than weak monarchs, however nominally absolute, can ever enjoy or retain. To these personal qualities was added the co-operation of some of the most diligent and circumspect, as well as the most sagacious counsellors that any prince has employed; men as unlikely to loose from their grasp the least portion of that authority which they found themselves to possess, as to excite popular odium by an unusual or misplaced exertion of it. The most eminent instances, as I have remarked, of a high-strained prerogative in her reign, have some relation to ecclesiastical concerns; and herein the temper of the predominant religion was such as to account no measures harsh or arbitrary that were adopted towards its conquered, but still formidable, enemy. Yet when the royal supremacy was to be maintained against a different foe by less violent acts of power, it revived the smouldering embers of English liberty. The stern and exasperated puritans became the depositaries of that sacred fire; and this manifests a second connection between the temporal and ecclesiastical history of the present reign. Civil liberty, in this kingdom, has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of parliament, without let or interruption, to enquire into, and obtain the redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any state be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise. In this, much more than in positive law, our ancient constitution, both under the Plantagenet and Tudor line, had ever been failing; and it is because one set of writers have looked merely to the letter of our statutes or other authorities, while another have been almost exclusively struck by the instances of arbitrary government they found on record, that such incompatible systems have been laid down with equal positiveness on the character of that constitution. _Trials for treason and other political offences unjustly conducted._--I have found it impossible not to anticipate, in more places than one, some of those glaring transgressions of natural as well as positive law, that rendered our courts of justice in cases of treason little better than the caverns of murderers. Whoever was arraigned at their bar was almost certain to meet a virulent prosecutor, a judge hardly distinguishable from the prosecutor except by his ermine, and a passive pusillanimous jury. Those who are acquainted only with our modern decent and dignified procedure, can form little conception of the irregularity of ancient trials; the perpetual interrogation of the prisoner, which gives most of us so much offence at this day in the tribunals of a neighbouring kingdom; and the want of all evidence except written, and perhaps unattested, examinations or confessions. Habington, one of the conspirators against Elizabeth's life in 1586, complained that two witnesses had not been brought against him, conformably to the statute of Edward VI. But Anderson, the chief justice, told him, that as he was indicted on the act of Edward III., that provision was not in force.[369] In the case of Captain Lee, a partisan of Essex and Southampton, the court appear to have denied the right of peremptory challenge.[370] Nor was more equal measure dealt to the noblest prisoners by their equals. The Earl of Arundel was convicted of imagining the queen's death, on evidence which at the utmost would only have supported an indictment for reconciliation to the church of Rome.[371] The integrity of judges is put to the proof as much by prosecutions for seditious writings as by charges of treason. I have before mentioned the conviction of Udal and Penry, for a felony created by the 23rd of Elizabeth; the former of which, especially, must strike every reader of the trial as one of the gross judicial iniquities of this reign. But, before this sanguinary statute was enacted, a punishment of uncommon severity had been inflicted upon one Stubbe, a puritan lawyer, for a pamphlet against the queen's intended marriage with the Duke of Anjou. It will be in the recollection of most of my readers that, in the year 1579, Elizabeth exposed herself to much censure and ridicule, and inspired the justest alarm in her most faithful subjects, by entertaining, at the age of forty-six, the proposals of this young scion of the house of Valois. Her council, though several of them in their deliberations had much inclined against the preposterous alliance, yet in the end, displaying the compliance usual with the servants of self-willed princes, agreed, "conceiving," as they say, "her earnest disposition for this her marriage," to further it with all their power. Sir Philip Sidney, with more real loyalty, wrote her a spirited remonstrance, which she had the magnanimity never to resent.[372] But she poured her indignation on Stubbe, who, not entitled to use a private address, had ventured to arouse a popular cry in his "Gaping Gulph, in which England will be swallowed up by the French Marriage." This pamphlet is very far from being, what some have ignorantly or unjustly called it, a virulent libel; but is written in a sensible manner, and with unfeigned loyalty and affection towards the queen. But, besides the main offence of addressing the people on state affairs, he had, in the simplicity of his heart, thrown out many allusions proper to hurt her pride, such as dwelling too long on the influence her husband would acquire over her, and imploring that she would ask her physicians whether to bear children at her years would not be highly dangerous to her life. Stubbe, for writing this pamphlet, received sentence to have his right hand cut off. When the penalty was inflicted, taking off his hat with his left, he exclaimed, Long live Queen Elizabeth! Burleigh, who knew that his fidelity had borne so rude a test, employed him afterwards in answering some of the popish libellers.[373] There is no room for wonder at any verdict that could be returned by a jury, when we consider what means the government possessed of securing it. The sheriff returned a pannel, either according to express directions, of which we have proofs, or to what he judged himself of the crown's intention and interest.[374] If a verdict had gone against the prosecution in a matter of moment, the jurors must have laid their account with appearing before the star-chamber; lucky, if they should escape, on humble retractation, with sharp words, instead of enormous fines and indefinite imprisonment. The control of this arbitrary tribunal bound down and rendered impotent all the minor jurisdictions. That primæval institution, those inquests by twelve true men, the unadulterated voice of the people responsible alone to God and their conscience, which should have been heard in the sanctuaries of justice, as fountains springing fresh from the lap of earth, became, like waters constrained in their course by art, stagnant and impure. Until this weight that hung upon the constitution should be taken off, there was literally no prospect of enjoying with security those civil privileges which it held forth.[375] _Illegal commitments._--It cannot be too frequently repeated, that no power of arbitrary detention has ever been known to our constitution since the charter obtained at Runnymede. The writ of habeas corpus has always been a matter of right. But as may naturally be imagined, no right of the subject, in his relation to the Crown, was preserved with greater difficulty. Not only the privy council in general arrogated to itself a power of discretionary imprisonment, into which no inferior court was to enquire, but commitments by a single counsellor appear to have been frequent. These abuses gave rise to a remarkable complaint of the judges, which, though an authentic recognition of the privilege of personal freedom against such irregular and oppressive acts of individual ministers, must be admitted to leave by far too great latitude to the executive government, and to surrender, at least by implication from rather obscure language, a great part of the liberties which many statutes had confirmed.[376] This is contained in a passage from Chief Justice Anderson's _Reports_. But as there is an original manuscript in the British Museum, differing in some material points from the print, I shall follow it in preference.[377] _Remonstrance of judges against them._--"To the Rt. Hon. our very good lords Sir Chr. Hatton, of the honourable order of the garter knight, and chancellor of England, and Sir W. Cecill of the hon. order of the garter knight, Lord Burleigh, lord high treasurer of England,--We her majesty's justices, of both benches, and barons of the exchequer, do desire your lordships that by your good means such order may be taken that her highness's subjects may not be committed or detained in prison, by commandment of any nobleman or counsellor, against the laws of the realm, to the grievous charges and oppression of her majesty's said subjects: Or else help us to have access to her majesty, to be suitors unto her highness for the same; for divers have been imprisoned for suing ordinary actions, and suits at the common law, until they will leave the same, or against their wills put their matter to order, although some time it be after judgment and accusation. "Item: Others have been committed and detained in prison upon such commandment against the law; and upon the queen's writ in that behalf, no cause sufficient hath been certified or returned. "Item: Some of the parties so committed and detained in prison after they have, by the queen's writ, been lawfully discharged in court, have been eftsoones recommitted to prison in secret places, and not in common and ordinary known prisons, as the Marshalsea, Fleet, King's Bench, Gatehouse, nor the custodie of any sheriff, so as upon complaint made for their delivery, the queen's court cannot learn to whom to award her majesty's writ, without which justice cannot be done. "Item: Divers serjeants of London and officers have been many times committed to prison for lawful execution of her majesty's writs out of the King's Bench, Common Pleas, and other courts, to their great charges and oppression, whereby they are put in such fear as they dare not execute the queen's process. "Item: Divers have been sent for by pursuivants for private causes, some of them dwelling far distant from London, and compelled to pay to the pursuivants great sums of money against the law, and have been committed to prison till they would release the lawful benefit of their suits, judgments, or executions for remedie, in which behalf we are almost daily called upon to minister justice according to law, whereunto we are bound by our office and oath. "And whereas it pleased your lordships to will divers of us to set down when a prisoner sent to custody by her majesty, her council, or some one or two of them, is to be detained in prison, and not to be delivered by her majesty's courts or judges: "We think that, if any person shall be committed by her majesty's special commandment, or by order from the council-board, or for treason touching her majesty's person (a word of five letters follows, illegible to me), which causes being generally returned into any court, is good cause for the same court to leave the person committed in custody. "But if any person shall be committed for any other cause, then the same ought specially to be returned." This paper bears the original signatures of eleven judges. It has no date, but is indorsed 5 June 1591. In the printed report, it is said to have been delivered in Easter term 34 Eliz., that is, in 1592. The Chancellor Hatton, whose name is mentioned, died in November 1591; so that, if there is no mistake, this must have been delivered a second time, after undergoing the revision of the judges. And in fact the differences are far too material to have proceeded from accidental carelessness in transcription. The latter copy is fuller, and on the whole more perspicuous, than the manuscript I have followed; but in one or two places it will be better understood by comparison with it. _Proclamations unwarranted by law._--It was a natural consequence, not more of the high notions entertained of prerogative than of the very irregular and infrequent meeting of parliament, that an extensive and somewhat indefinite authority should be arrogated to proclamations of the king in council. Temporary ordinances, bordering at least on legislative authority, grow out of the varying exigencies of civil society, and will by very necessity be put up with in silence, wherever the constitution of the commonwealth does not, directly or in effect, provide for frequent assemblies of the body in whom the right of making or consenting to laws has been vested. Since the English constitution has reached its zenith, we have endeavoured to provide a remedy by statute for every possible mischief or inconvenience; and if this has swollen our code to an enormous redundance, till, in the labyrinth of written law, we almost feel again the uncertainties of arbitrary power, it has at least put an end to such exertions of prerogative as fell at once on the persons and properties of whole classes. It seems by the proclamations issued under Elizabeth, that the Crown claimed a sort of supplemental right of legislation, to perfect and carry into effect what the spirit of existing laws might require, as well as a paramount supremacy, called sometimes the king's absolute or sovereign power, which sanctioned commands beyond the legal prerogative, for the sake of public safety, whenever the council might judge that to be in hazard. Thus we find anabaptists, without distinction of natives or aliens, banished the realm; Irishmen commanded to depart into Ireland; the culture of woad,[378] and the exportation of corn, money, and various commodities, prohibited; the excess of apparel restrained. A proclamation in 1580 forbids the erection of houses within three miles of London, on account of the too great increase of the city, under the penalty of imprisonment and forfeiture of the materials.[379] This is repeated at other times, and lastly (I mean during her reign) in 1602, with additional restrictions.[380] Some proclamations in this reign hold out menaces, which the common law could never have executed on the disobedient. To trade with the French king's rebels, or to export victuals into the Spanish dominions (the latter of which might possibly be construed into assisting the queen's enemies) incurred the penalty of treason. And persons having in their possession goods taken on the high seas, which had not paid custom, are enjoined to give them up, on pain of being punished as felons and pirates.[381] Notwithstanding these instances, it cannot perhaps be said on the whole that Elizabeth stretched her authority very outrageously in this respect. Many of her proclamations, which may at first sight appear illegal, are warrantable by statutes then in force, or by ancient precedents. Thus the council is empowered by an act (28 H. 8, c. 14) to fix the prices of wines; and abstinence from flesh in Lent, as well as on Fridays and Saturdays (a common subject of Elizabeth's proclamations), is enjoined by several statutes of Edward VI. and of her own.[382] And it has been argued by some not at all inclined to diminish any popular rights, that the king did possess a prerogative by common law of restraining the export of corn and other commodities.[383] _Restrictions on printing._--It is natural to suppose that a government thus arbitrary and vigilant must have looked with extreme jealousy on the diffusion of free enquiry through the press. The trades of printing and bookselling, in fact, though not absolutely licensed, were always subject to a sort of peculiar superintendence. Besides protecting the copyright of authors,[384] the council frequently issued proclamations to restrain the importation of books, or to regulate their sale.[385] It was penal to utter, or so much as to possess, even the most learned works on the catholic side; or if some connivance was usual in favour of educated men, the utmost strictness was used in suppressing that light infantry of literature, the smart and vigorous pamphlets with which the two parties arrayed against the church assaulted her opposite flanks.[386] Stowe, the well-known chronicler of England, who lay under suspicion of an attachment to popery, had his library searched by warrant, and his unlawful books taken away; several of which were but materials for his history.[387] Whitgift, in this, as in every other respect, aggravated the rigour of preceding times. At his instigation, the star-chamber, in 1585, published ordinances for the regulation of the press. The preface of these recites enormities and abuses of disorderly persons professing the art of printing and selling books to have more and more increased in spite of the ordinances made against them, which it attributes to the inadequacy of the penalties hitherto inflicted. Every printer therefore is enjoined to certify his presses to the Stationers' Company, on pain of having them defaced, and suffering a year's imprisonment. None to print at all, under similar penalties, except in London, and one in each of the two universities. No printer who has only set up his trade within six months to exercise it any longer, nor any to begin it in future, until the excessive multitude of printers be diminished, and brought to such a number as the Archbishop of Canterbury and Bishop of London for the time being shall think convenient; but, whenever any addition to the number of master printers shall be required, the Stationers' Company shall select proper persons to use that calling with the approbation of the ecclesiastical commissioners. None to print any book, matter, or thing whatsoever, until it shall have been first seen, perused, and allowed by the Archbishop of Canterbury, or Bishop of London, except the queen's printer, to be appointed for some special service, or law-printers, who shall require the licence only of the chief justices. Every one selling books printed contrary to the intent of this ordinance, to suffer three months' imprisonment. The Stationers' Company empowered to search houses and shops of printers and booksellers, and to seize all books printed in contravention of this ordinance, to destroy and deface the presses, and to arrest and bring before the council those who shall have offended therein.[388] The forms of English law, however inadequate to defend the subject in state prosecutions, imposed a degree of seeming restraint on the Crown, and wounded that pride which is commonly a yet stronger sentiment than the lust of power, with princes and their counsellors. It was possible that juries might absolve a prisoner; it was always necessary that they should be the arbiters of his fate. Delays too were interposed by the regular process; not such, perhaps, as the life of man should require, yet enough to weaken the terrors of summary punishment. Kings love to display the divinity with which their flatterers invest them, in nothing so much as the instantaneous execution of their will; and to stand revealed, as it were, in the storm and thunderbolt, when their power breaks through the operation of secondary causes, and awes a prostrate nation without the intervention of law. There may indeed be times of pressing danger, when the conservation of all demands the sacrifice of the legal rights of a few; there may be circumstances that not only justify, but compel, the temporary abandonment of constitutional forms. It has been usual for all governments, during an actual rebellion, to proclaim martial law, or the suspension of civil jurisdiction. And this anomaly, I must admit, is very far from being less indispensable at such unhappy seasons, in countries where the ordinary mode of trial is by jury, than where the right of decision resides in the judge. But it is of high importance to watch with extreme jealousy the disposition, towards which most governments are prone, to introduce too soon, to extend too far, to retain too long, so perilous a remedy. In the fourteenth and fifteenth centuries, the court of the constable and marshal, whose jurisdiction was considered as of a military nature, and whose proceedings were not according to the course of the common law, sometimes tried offenders by what was called martial law, but only, I believe, either during, or not long after, a serious rebellion. This tribunal fell into disuse under the Tudors. But Mary had executed some of those taken in Wyatt's insurrection without regular process, though their leader had his trial by a jury. Elizabeth, always hasty in passion and quick to punish, would have resorted to this summary course on a slighter occasion. One Pete Burchell, a fanatical puritan, and perhaps insane, conceiving that Sir Christopher Hatton was an enemy to true religion, determined to assassinate him. But by mistake he wounded instead a famous seaman, Captain Hawkins. For this ordinary crime, the queen could hardly be prevented from directing him to be tried instantly by martial law. Her council, however (and this it is important to observe), resisted this illegal proposition with spirit and success.[389] We have indeed a proclamation some years afterwards, declaring that such as brought into the kingdom or dispersed papal bulls, or traitorous libels against the queen, should with all severity be proceeded against by her majesty's lieutenants or their deputies, by martial law, and suffer such pains and penalties as they should inflict; and that none of her said lieutenants or their deputies be any wise impeached, in body, lands, or goods, at any time hereafter, for anything to be done or executed in the punishment of any such offender, according to the said martial law, and the tenor of this proclamation, any law or statute to the contrary in any wise notwithstanding.[390] This measure, though by no means constitutional, finds an apology in the circumstances of the time. It bears date the 1st of July 1588, when within the lapse of a few days the vast armament of Spain might effect a landing upon our coasts; and prospectively to a crisis, when the nation, struggling for life against an invader's grasp, could not afford the protection of law to domestic traitors. But it is an unhappy consequence of all deviations from the even course of law, that the forced acts of over-ruling necessity come to be distorted into precedents to serve the purposes of arbitrary power. _Martial law._--No other measure of Elizabeth's reign can be compared, in point of violence and illegality, to a commission in July 1595, directed to Sir Thomas Wilford; whereby upon no other allegation than that there had been of late sundry great unlawful assemblies of a number of base people in riotous sort, both in the city of London and the suburbs, for the suppression whereof (for that the insolency of many desperate offenders is such, that they care not for any ordinary punishment by imprisonment), it was found necessary to have some such notable rebellious persons to be speedily suppressed by execution to death, according to the justice of martial law, he is appointed provost-marshal, with authority, on notice by the magistrates, to attach and seize such notable rebellious and incorrigible offenders, and in the presence of the magistrates to execute them openly on the gallows. The commission empowers him also "to repair to all common highways near to the city, which any vagrant persons do haunt, and, with the assistance of justices and constables, to apprehend all such vagrant and suspected persons, and them to deliver to the said justices, by them to be committed and examined of the causes of their wandering, and finding them notoriously culpable in their unlawful manner of life, as incorrigible, and so certified by the said justices, to cause to be executed upon the gallows or gibbet some of them that are so found most notorious and incorrigible offenders; and some such also of them as have manifestly broken the peace, since they have been adjudged and condemned to death for former offences, and had the queen's pardon for the same."[391] This peremptory style of superseding the common law was a stretch of prerogative without an adequate parallel, so far as I know, in any former period. It is to be remarked, that no tumults had taken place of any political character or of serious importance, some riotous apprentices only having committed a few disorders.[392] But rather more than usual suspicion had been excited about the same time by the intrigues of the jesuits in favour of Spain, and the queen's advanced age had begun to renew men's doubts as to the succession. The rapid increase of London gave evident uneasiness, as the proclamations against new buildings show, to a very cautious administration, environed by bold and inveterate enemies, and entirely destitute of regular troops to withstand a sudden insurrection. Circumstances of which we are ignorant, I do not question, gave rise to this extraordinary commission. The executive government in modern times has been invested with a degree of coercive power to maintain obedience, of which our ancestors, in the most arbitrary reigns, had no practical experience. If we reflect upon the multitude of statutes enacted since the days of Elizabeth in order to restrain and suppress disorder, and above all on the prompt and certain aid that a disciplined army affords to our civil authorities, we may be inclined to think that it was rather the weakness than the vigour of her government which led to its inquisitorial watchfulness and harsh measures of prevention. We find in an earlier part of her reign an act of state somewhat of the same character, though not perhaps illegal. Letters were written to the sheriffs and justices of divers counties in 1569, directing them to apprehend, on a certain night, all vagabonds and idle persons having no master, nor means of living, and either to commit them to prison, or pass them to their proper homes. This was repeated several times; and no less than 13,000 persons were thus apprehended, chiefly in the north, which, as Strype says, very much broke the rebellion attempted in that year.[393] Amidst so many infringements of the freedom of commerce, and with so precarious an enjoyment of personal liberty, the English subject continued to pride himself in his immunity from taxation without consent of parliament. This privilege he had asserted, though not with constant success, against the rapacity of Henry VII. and the violence of his son. Nor was it ever disputed in theory by Elizabeth. She retained, indeed, notwithstanding the complaints of the merchants at her accession, a custom upon cloths, arbitrarily imposed by her sister, and laid one herself upon sweet wines. But she made no attempt at levying internal taxes, except that the clergy were called upon, in 1586, for an aid not granted in convocation, but assessed by the archdeacon according to the value of their benefices; to which they naturally showed no little reluctance.[394] By dint of singular frugality she continued to steer the true course, so as to keep her popularity undiminished and her prerogative unimpaired; asking very little of her subjects' money in parliaments, and being hence enabled both to have long breathing times between their sessions, and to meet them without coaxing or wrangling; till, in the latter years of her reign, a foreign war and a rebellion in Ireland, joined to a rapid depreciation in the value of money, rendered her demands somewhat higher. But she did not abstain from the ancient practice of sending privy-seals to borrow money of the wealthy. _Loans of money not quite voluntary._--These were not considered as illegal, though plainly forbidden by the statute of Richard III.; for it was the fashion to set aside the authority of that act, as having been passed by an usurper. It is impossible to doubt that such loans were so far obtained by compulsion, that any gentleman or citizen of sufficient ability refusing compliance would have discovered that it were far better to part with his money than to incur the council's displeasure. We have indeed a letter from a lord mayor to the council informing them that he had committed to prison some citizens for refusing to pay the money demanded of them.[395] But the queen seems to have been punctual in their speedy repayment according to stipulation; a virtue somewhat unusual with royal debtors. Thus we find a proclamation in 1571, that such as had lent the queen money in the last summer should receive repayment in November and December.[396] Such loans were but an anticipation of her regular revenue, and no great hardship on rich merchants; who, if they got no interest for their money, were recompensed with knighthoods and gracious words. And as Elizabeth incurred no debt till near the conclusion of her reign, it is probable that she never had borrowed more than she was sure to repay. A letter quoted by Hume from Lord Burleigh's papers, though not written by him, as the historian asserts, and somewhat obscure in its purport, appears to warrant the conclusion that he had revolved in his mind some project of raising money by a general contribution or benevolence from persons of ability, without purpose of repayment. This was also amidst the difficulties of the year 1569, when Cecil perhaps might be afraid of meeting parliament, on account of the factions leagued against himself. But as nothing further was done in this matter, we must presume that he perceived the impracticability of so unconstitutional a scheme.[397] _Character of Lord Burleigh's administration._--Those whose curiosity has led them to somewhat more acquaintance with the details of English history under Elizabeth than the pages of Camden or Hume will afford, cannot but have been struck with the perpetual interference of men in power with matters of private concern. I am far from pretending to know how far the solicitations for a prime minister's aid and influence may extend at present. Yet one may think that he would hardly be employed, like Cecil, where he had no personal connection, in reconciling family quarrels, interceding with a landlord for his tenant, or persuading a rich citizen to bestow his daughter on a young lord. We are sure, at least, that he would not use the air of authority upon such occasions. The vast collection of Lord Burleigh's letters in the Museum is full of such petty matters, too insignificant, for the most part, to be mentioned even by Strype.[398] They exhibit, however, collectively, a curious view of the manner in which England was managed, as if it had been the household and estate of a nobleman under a strict and prying steward. We are told that the relaxation of this minister's mind was to study the state of England and the pedigrees of its nobility and gentry: of these last he drew whole books with his own hands; so that he was better versed in descents and families than most of the heralds, and would often surprise persons of distinction at his table by appearing better acquainted with their manors, parks, and woods, than themselves.[399] Such knowledge was not sought by the crafty Cecil for mere diversion's sake. It was a main part of his system to keep alive in the English gentry a persuasion that his eye was upon them. No minister was ever more exempt from that false security which is the usual weakness of a court. His failing was rather a bias towards suspicion and timidity; there were times, at least, in which his strength of mind seems to have almost deserted him, through sense of the perils of his sovereign and country. But those perils appear less to us, who know how the vessel outrode them, than they could do to one harassed by continual informations of those numerous spies whom he employed both at home and abroad. The one word of Burleigh's policy was prevention; and this was dictated by a consciousness of wanting an armed force or money to support it, as well as by some uncertainty as to the public spirit, in respect at least of religion. But a government that directs its chief attention to prevent offences against itself, is in its very nature incompatible with that absence of restraint, that immunity from suspicion, in which civil liberty, as a tangible possession, may be said to consist. It appears probable, that Elizabeth's administration carried too far, even as a matter of policy, this precautionary system upon which they founded the penal code against popery; and we may surely point to a contrast very advantageous to our modern constitution, in the lenient treatment which the Jacobite faction experienced from the princes of the house of Hanover. She reigned however in a period of real difficulty and danger. At such seasons, few ministers will abstain from arbitrary actions, except those who are not strong enough to practise them. _Disposition of the House of Commons._--I have traced, in another work, the acquisition by the House of Commons of a practical right to enquire into and advise upon the public administration of affairs, during the reigns of Edward III., Richard II., and the princes of the line of Lancaster. This energy of parliament was quelled by the civil wars of the fifteenth century; and, whatever may have passed in debates within its walls that have not been preserved, did not often display itself in any overt act under the first Tudors. To grant subsidies which could not be raised by any other course, to propose statutes which were not binding without their consent, to consider of public grievances, and procure their redress, either by law or petition to the Crown, were their acknowledged constitutional privileges, which no sovereign or minister ever pretended to deny. For this end liberty of speech and free access to the royal person were claimed by the speaker as customary privileges (though not quite, in his modern language, as undoubted rights), at the commencement of every parliament. But the House of Commons in Elizabeth's reign contained men of a bold and steady patriotism, well read in the laws and records of old time, sensible to the dangers of their country and abuses of government, and conscious that it was their privilege and their duty to watch over the common weal. This led to several conflicts between the crown and parliament; wherein, if the former often asserted the victory, the latter sometimes kept the field, and was left on the whole a gainer at the close of the campaign. It would surely be erroneous to conceive, that many acts of government in the four preceding reigns had not appeared at the time arbitrary and unconstitutional. If indeed we are not mistaken in judging them according to the ancient law, they must have been viewed in the same light by contemporaries, who were full as able to try them by that standard. But, to repeat what I have once before said, the extant documents from which we draw our knowledge of constitutional history under those reigns are so scanty, that instances even of a successful parliamentary resistance to measures of the Crown may have left no memorial. The debates of parliament are not preserved, and very little is to be gained from such histories as the age produced. The complete barrenness indeed of Elizabeth's chroniclers, Holingshed and Thin, as to every parliamentary or constitutional information, speaks of itself the jealous tone of her administration. Camden, writing to the next generation, though far from an ingenuous historian, is somewhat less under restraint. This forced silence of history is much more to be suspected after the use of printing and the reformation, than in the ages when monks compiled annals in their convents, reckless of the censure of courts, because independent of their permission. Grosser ignorance of public transactions is undoubtedly found in the chronicles of the middle ages; but far less of that deliberate mendacity, or of that insidious suppression, by which fear, and flattery, and hatred, and the thirst of gain, have, since the invention of printing, corrupted so much of historical literature throughout Europe. We begin however to find in Elizabeth's reign more copious and unquestionable documents for parliamentary history. The regular journals indeed are partly lost; nor would those which remain give us a sufficient insight into the spirit of parliament, without the aid of other sources. But a volume called Sir Simon D'Ewes's journal, part of which is copied from a manuscript of Heywood Townsend, a member of all parliaments from 1580 to 1601, contains minutes of the most interesting debates as well as transactions, and for the first time renders us acquainted with the names of those who swayed an English House of Commons.[400] _Addresses concerning the succession._--There was no peril more alarming to this kingdom during the queen's reign than the precariousness of her life--a thread whereon its tranquillity, if not its religion and independence, was suspended. Hence the Commons felt it an imperious duty not only to recommend her to marry, but, when this was delayed, to solicit that some limitations of the Crown might be enacted, in failure of her issue. The former request she evaded without ever manifesting much displeasure, though not sparing a hint that it was a little beyond the province of parliament. Upon the last occasion, indeed, that it was preferred, namely, by the speaker in 1575, she gave what from any other woman must have appeared an assent, and almost a promise. But about declaring the succession she was always very sensible. Through a policy not perhaps entirely selfish, and certainly not erroneous on selfish principles, she was determined never to pronounce among the possible competitors for the throne. Least of all could she brook the intermeddling of parliament in such a concern. The Commons first took up this business in 1562, when there had begun to be much debate in the nation about the opposite titles of the Queen of Scots and Lady Catherine Grey; and especially in consequence of a dangerous sickness the queen had just experienced, and which is said to have been the cause of summoning parliament. Their language is wary, praying her only by "proclamation of certainty already provided, if any such be," alluding to the will of Henry VIII., "or else by limitations of certainty, if none be, to provide a most gracious remedy in this great necessity;"[401] offering at the same time to concur in provisions to guarantee her personal safety against any one who might be limited in remainder. Elizabeth gave them a tolerably courteous answer, though not without some intimation of her dislike to this address.[402] But at their next meeting, which was not till 1566, the hope of her own marriage having grown fainter, and the circumstances of the kingdom still more powerfully demanding some security, both houses of parliament united, with a boldness of which there had perhaps been no example for more than a hundred years, to overcome her repugnance. Some of her own council among the peers are said to have asserted in their places that the queen ought to be obliged to take a husband, or that a successor should be declared by parliament against her will. She was charged with a disregard to the state and to posterity. She would prove, in the uncourtly phrase of some sturdy members of the lower house, a step-mother to her country, as being seemingly desirous that England, which lived as it were in her, should rather expire with than survive her; that kings can only gain the affections of their subjects by providing for their welfare both while they live and after their deaths; nor did any but princes hated by their subjects, or faint-hearted women, ever stand in fear of their successors.[403] But this great princess wanted not skill and courage to resist this unusual importunity of parliament. The peers, who had forgotten their customary respectfulness, were excluded the presence-chamber till they made their submission. She prevailed on the Commons, through her ministers who sat there, to join a request for her marriage with the more unpalatable alternative of naming her successor; and when this request was presented, gave them fair words, and a sort of assurance that their desires should by some means be fulfilled.[404] When they continued to dwell on the same topic in their speeches, she sent messages through her ministers, and at length a positive injunction through the speaker, that they should proceed no further in the business. The house however was not in a temper for such ready acquiescence as it sometimes displayed. Paul Wentworth, a bold and plain-spoken man, moved to know whether the queen's command and inhibition that they should no longer dispute of the matter of succession, were not against their liberties and privileges. This caused, as we are told, long debates; which do not appear to have terminated in any resolution.[405] But, more probably having passed than we know at present, the queen, whose haughty temper and tenaciousness of prerogative were always within check of her discretion, several days after announced through the speaker, that she revoked her two former commandments; "which revocation," says the journal, "was taken by the house most joyfully, with hearty prayer and thanks for the same." At the dissolution of this parliament, which was perhaps determined upon in consequence of their steadiness, Elizabeth alluded in addressing them with no small bitterness to what had occurred.[406] This is the most serious disagreement on record between the Crown and the Commons since the days of Richard II. and Henry IV. Doubtless the queen's indignation was excited by the nature of the subject her parliament ventured to discuss, still more than by her general disapprobation of their interference in matters of state. It was an endeavour to penetrate the great secret of her reign, in preserving which she conceived her peace, dignity, and personal safety to be bound up. There were, in her opinion, as she intimates in her speech at closing the session, some underhand movers of this intrigue (whether of the Scots or Suffolk faction does not appear), who were more to blame than even the speakers in parliament. And if, as Cecil seems justly to have thought, no limitations of the Crown could at that time have been effected without much peril and inconvenience, we may find some apology for her warmth about their precipitation in a business, which, even according to our present constitutional usage, it would naturally be for the government to bring forward. It is to be collected from Wentworth's motion, that to deliberate on subjects affecting the commonwealth was reckoned, by at least a large part of the House of Commons, one of their ancient privileges and liberties. This was not one which Elizabeth, however she had yielded for the moment in revoking her prohibition, ever designed to concede to them. Such was her frugality, that, although she had remitted a subsidy granted in this session, alleging the very honourable reason that, knowing it to have been voted in expectation of some settlement of the succession, she would not accept it when that implied condition had not been fulfilled, she was able to pass five years without again convoking her people. _Session of 1571._--A parliament met in April 1571, when the lord keeper Bacon,[407] in answer to the speaker's customary request for freedom of speech in the Commons, said that "her majesty having experience of late of some disorder and certain offences, which, though they were not punished, yet were they offences still, and so must be accounted, they would therefore do well to meddle with no matters of state, but such as should be propounded unto them, and to occupy themselves in other matters concerning the commonwealth." _Influence of the puritans in parliament._--The Commons so far attended to this intimation, that no proceedings about the succession appear to have taken place in this parliament, except such as were calculated to gratify the queen. We may perhaps except a bill attainting the Queen of Scots, which was rejected in the upper house. But they entered for the first time on a new topic, which did not cease for the rest of this reign to furnish matter of contention with their sovereign. The party called puritan, including such as charged abuses on the actual government of the church, as well as those who objected to part of its lawful discipline, had, not a little in consequence of the absolute exclusion of the catholic gentry, obtained a very considerable strength in the Commons. But the queen valued her ecclesiastical supremacy more than any part of her prerogative. Next to the succession of the Crown, it was the point she could least endure to be touched. The house had indeed resolved, upon reading a bill the first time for reformation of the common prayer, that petition be made to the queen's majesty for her licence to proceed in it, before it should be further dealt in. But Strickland, who had proposed it, was sent for to the council, and restrained from appearing again in his place, though put under no confinement. This was noticed as an infringement of their liberties. The ministers endeavoured to excuse his detention, as not intended to lead to any severity, nor occasioned by anything spoken in that house, but on account of his introducing a bill against the prerogative of the queen, which was not to be tolerated. And instances were quoted of animadversion or speeches made in parliament. But Mr. Yelverton maintained that all matters not treasonable, nor too much to the derogation of the imperial Crown, were tolerable there, where all things came to be considered, and where there was such fulness of power as even the right of the Crown was to be determined, which it would be high treason to deny. Princes were to have their prerogatives, but yet to be confined within reasonable limits. The queen could not of herself make laws, neither could she break them. This was the true voice of English liberty, not so new to men's ears as Hume has imagined, though many there were who would not forfeit the court's favour by uttering it. Such speeches as the historian has quoted of Sir Humphry Gilbert, and many such may be found in the proceedings of this reign, are rather directed to intimidate the house by exaggerating their inability to contend with the Crown, than to prove the law of the land to be against them. In the present affair of Strickland, it became so evident that the Commons would at least address the queen to restore him, that she adopted the course her usual prudence indicated, and permitted his return to his house. But she took the reformation of ecclesiastical abuses out of their hands, sending word that she would have some articles for that purpose executed by the bishops under her royal supremacy, and not dealt in by parliament. This did not prevent the Commons from proceeding to send up some bills in the upper house, where, as was natural to expect, they fell to the ground.[408] This session is also remarkable for the first marked complaints against some notorious abuses, which defaced the civil government of Elizabeth.[409] A member having rather prematurely suggested the offer of a subsidy, several complaints were made of irregular and oppressive practices, and Mr. Bell said, that licences granted by the Crown and other abuses galled the people, intimating also, that the subsidy should be accompanied by a redress of grievances.[410] This occasion of introducing the subject, though strictly constitutional, was likely to cause displeasure. The speaker informed them a few days after of a message from the queen to spend little time in motions, and make no long speeches.[411] And Bell, it appears, having been sent for by the council, came into the house "with such an amazed countenance, that it daunted all the rest," who for many days durst not enter on any matter of importance.[412] It became the common whisper, that no one must speak against licences, lest the queen and council should be angry. And at the close of the session, the lord keeper severely reprimanded those audacious, arrogant, and presumptuous members who had called her majesty's grants and prerogatives in question, meddling with matters neither pertaining to them, nor within the capacity of their understanding.[413] The parliament of 1572 seemed to give evidence of their inheriting the spirit of the last by choosing Mr. Bell for their speaker.[414] But very little of it appeared in their proceedings. In their first short session, chiefly occupied by the business of the Queen of Scots, the most remarkable circumstances are the following. The Commons were desirous of absolutely excluding Mary from inheriting the crown, and even of taking away her life, and had prepared bills with this intent. But Elizabeth, constant to her mysterious policy, made one of her ministers inform them that she would neither have the Queen of Scots enabled nor disabled to succeed, and willed that the bill respecting her should be drawn by her council: and that, in the meantime, the house should not enter on any speeches or arguments on that matter.[415] Another circumstance worthy of note in this session is a signification, through the speaker, of her majesty's pleasure that no bills concerning religion should be received, unless they should be first considered and approved by the clergy, and requiring to see certain bills touching rites and ceremonies that had been read in the house. The bills were accordingly ordered to be delivered to her, with a humble prayer that, if she should dislike them, she would not conceive an ill opinion of the house, or of the parties by whom they were preferred.[416] _Speech of Mr. Wentworth in 1576._--The submissiveness of this parliament was doubtless owing to the queen's vigorous dealings with the last. At their next meeting, which was not till February 1575-6, Peter Wentworth, brother, I believe, of the person of that name before mentioned, broke out, in a speech of uncommon boldness, against her arbitrary encroachments on their privileges. The liberty of free speech, he said, had in the two last sessions been so many ways infringed, that they were in danger, while they contented themselves with the name, of losing and foregoing the thing. It was common for a rumour to spread through that house, "the queen likes or dislikes such a matter; beware what you do." Messages were even sometimes brought down, either commanding or inhibiting, very injurious to the liberty of debate. He instanced that in the last session, restraining the house from dealing in matters of religion; against which and against the prelates he inveighed with great acrimony. With still greater indignation he spoke of the queen's refusal to assent to the attainder of Mary, and after surprising the house by the bold words, "none is without fault, no not our noble queen, but has committed great and dangerous faults to herself," went on to tax her with ingratitude and unkindness to her subjects, in a strain perfectly free indeed from disaffection, but of more rude censure than any kings would put up with.[417] This direct attack upon the sovereign, in matters relating to her public administration, seems no doubt unparliamentary; though neither the rules of parliament in this respect, nor even the constitutional principle, were so strictly understood as at present. But it was part of Elizabeth's character to render herself extremely prominent, and, as it were, responsible in public esteem, for every important measure of her government. It was difficult to consider a queen as acting merely by the advice of ministers, who protested in parliament that they had laboured in vain to bend her heart to their councils. The doctrine that some one must be responsible for every act of the Crown was yet perfectly unknown; and Elizabeth would have been the last to adopt a system so inglorious to monarchy. But Wentworth had gone to a length which alarmed the House of Commons. They judged it expedient to prevent an unpleasant interference by sequestering their member, and appointing a committee of all the privy counsellors in the house to examine him. Wentworth declined their authority, till they assured him that they sat as members of the Commons, and not as counsellors. After a long examination, in which he not only behaved with intrepidity, but, according to his own statement, reduced them to confess the truth of all he advanced, they made a report to the house, who committed him to the Tower. He had lain there a month when the queen sent word that she remitted her displeasure towards him, and referred his enlargement to the house, who released him upon a reprimand from the speaker, and an acknowledgment of his fault upon his knees.[418] In this commitment of Wentworth, it can hardly be said that there was anything, as to the main point, by which the house sacrificed its acknowledged privileges. In later instances, and even in the reign of George I., members have been committed for much less indecent reflections on the sovereign. The queen had no reason upon the whole to be ill-pleased with this parliament, nor was she in haste to dissolve it, though there was a long intermission of its sessions. The next was in 1581, when the chancellor, on confirming a new speaker, did not fail to admonish him that the House of Commons should not intermeddle in anything touching her majesty's person or estate, or church government. They were supposed to disobey this injunction and fell under the queen's displeasure, by appointing a public fast on their own authority, though to be enforced on none but themselves. This trifling resolution, which showed indeed a little of the puritan spirit, passed for an encroachment on the supremacy, and was only expiated by a humble apology.[419] It is not till the month of February 1587-8, that the zeal for ecclesiastical reformation overcame in some measure the terrors of power, but with no better success than before. A Mr. Cope offered to the house, we are informed, a bill and a book, the former annulling all laws respecting ecclesiastical government then in force, and establishing a certain new form of common prayer contained in the latter. The speaker interposed to prevent this bill from being read, on the ground that her majesty had commanded them not to meddle in this matter. Several members however spoke in favour of hearing it read, and the day passed in debate on this subject. Before they met again, the queen sent for the speaker, who delivered up to her the bill and book. Next time that the house sat, Mr. Wentworth insisted that some questions of his proposing should be read. These queries were to the following purport: Whether this council was not a place for any member of the same, freely and without control, by bill or speech, to utter any of the griefs of this commonwealth? Whether there be any council that can make, add, or diminish from the laws of the realm, but only this council of parliament? Whether it be not against the orders of this council to make any secret or matter of weight, which is here in hand, known to the prince or any other, without consent of the house? Whether the speaker may overrule the house in any matter or cause in question? Whether the prince and state can continue and stand, and be maintained without this council of parliament, not altering the government of the state? These questions Serjeant Pickering, the speaker, instead of reading them to the house, showed to a courtier, through whose means Wentworth was committed to the Tower. Mr. Cope, and those who had spoken in favour of his motion, underwent the same fate; and notwithstanding some notice taken of it in the house, it does not appear that they were set at liberty before its dissolution, which ensued in three weeks.[420] Yet the Commons were so set on displaying an ineffectual hankering after reform, that they appointed a committee to address the queen for a learned ministry. _The Commons continue to seek redress of ecclesiastical grievances._--At the beginning of the next parliament, which met in 1588-9, the speaker received an admonition that the house were not to extend their privileges to any irreverent or misbecoming speech. In this session Mr. Damport, we are informed by D'Ewes,[421] moved neither for making of any new laws, nor for abrogating of any old ones, but for a due course of proceeding in laws already established, but executed by some ecclesiastical governors contrary both to their purport and the intent of the legislature, which he proposed to bring into discussion. So cautious a motion saved its author from the punishment which had attended Mr. Cope for his more radical reform; but the secretary of state, reminding the house of the queen's express inhibition from dealing with ecclesiastical causes, declared to them by the chancellor at the commencement of the session (in a speech which does not appear), prevented them from taking any further notice of Mr. Damport's motion. They narrowly escaped Elizabeth's displeasure in attacking some civil abuses. Sir Edward Hobby brought in a bill to prevent certain exactions made for their own profit by the officers of the exchequer. Two days after he complained that he had been very sharply rebuked by some great personage, not a member of the house, for his speech on that occasion. But instead of testifying indignation at this breach of their privileges, neither he nor the house thought of any further redress than by exculpating him to this great personage, apparently one of the ministers, and admonishing their members not to repeat elsewhere anything uttered in their debates.[422] For the bill itself, as well as one intended to restrain the flagrant abuses of purveyance, they both were passed to the Lords. But the queen sent a message to the upper house, expressing her dislike of them, as meddling with abuses, which, if they existed, she was both able and willing to repress; and this having been formally communicated to the Commons, they appointed a committee to search for precedents in order to satisfy her majesty about their proceedings. They received afterwards a gracious answer to their address, the queen declaring her willingness to afford a remedy for the alleged grievances.[423] Elizabeth, whose reputation for consistency, which haughty princes overvalue, was engaged in protecting the established hierarchy, must have experienced not a little vexation at the perpetual recurrence of complaints which the unpopularity of that order drew from every parliament. The speaker of that summoned in 1593 received for answer to his request of liberty of speech, that it was granted, "but not to speak every one what he listeth, or what cometh into his brain to utter; their privilege was aye or no. Wherefore, Mr. Speaker," continues the lord keeper Pickering, himself speaker in the parliament of 1588, "her majesty's pleasure is, that if you perceive any idle heads which will not stick to hazard their own estates, which will meddle with reforming the church and transforming the commonwealth, and do exhibit such bills to such purpose, that you receive them not, until they be viewed and considered by those, who it is fitter should consider of such things, and can better judge of them." It seems not improbable that this admonition, which indeed is in no unusual style for this reign, was suggested by the expectation of some unpleasing debate. For we read that the very first day of the session, though the Commons had adjourned on account of the speaker's illness, the unconquerable Peter Wentworth, with another member, presented a petition to the lord keeper, desiring the Lords of the upper house to join with them of the lower in imploring her majesty to entail the succession of the Crown, for which they had already prepared a bill. This step, which may seem to us rather arrogant and unparliamentary, drew down, as they must have expected, the queen's indignation. They were summoned before the council, and committed to different prisons.[424] A few days afterwards a bill for reforming the abuses of ecclesiastical courts was presented by Morice, attorney of the court of wards, and underwent some discussion in the house.[425] But the queen sent for the speaker, and expressly commanded that no bill touching matters of state or reformation of causes ecclesiastical should be exhibited; and if any such should be offered, enjoining him on his allegiance not to read it.[426] It was the custom at that time for the speaker to read and expound to the house all the bills that any member offered. Morice himself was committed to safe custody, from which he wrote a spirited letter to Lord Burleigh, expressing his sorrow for having offended the queen, but at the same time his resolution "to strive," he says, "while his life should last, for freedom of conscience, public justice, and the liberties of his country."[427] Some days after a motion was made that, as some places might complain of paying subsidies, their representatives not having been consulted nor been present when they were granted, the house should address the queen to set their members at liberty. But the ministers opposed this, as likely to hurt those whose good was sought, her majesty being more likely to release them, if left to her own gracious disposition. It does not appear however that she did so during the session, which lasted above a month.[428] We read, on the contrary, in an undoubted authority, namely, a letter of Antony Bacon to his mother, that "divers gentlemen, who were of the parliament, and thought to have returned into the country after the end thereof, were stayed by her majesty's commandment, for being privy, as it is thought, and consenting to Mr. Wentworth's motion."[429] Some difficulty was made by this House of Commons about their grant of subsidies, which was uncommonly large, though rather in appearance than truth, so great had been the depreciation of silver for some years past.[430] _Monopolies, especially in the session of 1601._--The admonitions not to abuse freedom of speech, which had become almost as much matter of course as the request for it, were repeated in the ensuing parliaments of 1597 and 1601. Nothing more remarkable occurs in the former of these sessions than an address to the queen against the enormous abuse of monopolies. The Crown either possessed or assumed the prerogative of regulating almost all matters of commerce at its discretion. Patents to deal exclusively in particular articles, generally of foreign growth, but reaching in some instances to such important necessaries of life as salt, leather, and coal, had been lavishly granted to the courtiers, with little direct advantage to the revenue. They sold them to companies of merchants, who of course enhanced the price to the utmost ability of the purchaser. This business seems to have been purposely protracted by the ministers and the speaker, who, in this reign, was usually in the court's interests, till the last day of the session; when, in answer to his mention of it, the lord keeper said that the queen "hoped her dutiful and loving subjects would not take away her prerogative, which is the choicest flower in her garden, and the principal and head pearl in her crown and diadem; but would rather leave that to her disposition, promising to examine all patents, and to abide the touchstone of the law."[431] This answer, though less stern than had been usual, was merely evasive; and in the session of 1601, a bolder and more successful attack was made on the administration than this reign had witnessed. The grievance of monopolies had gone on continually increasing; scarce any article was exempt from these oppressive patents. When the list of them was read over in the house, a member exclaimed, "Is not bread among the number?" The house seemed amazed: "Nay," said he, "if no remedy is found for these, bread will be there before the next parliament." Every tongue seemed now unloosed; each as if emulously descanting on the injuries of the place he represented. It was vain for the courtiers to withstand this torrent. Raleigh, no small gainer himself by some monopolies, after making what excuse he could, offered to give them up. Robert Cecil the secretary, and Bacon, talked loudly of the prerogative, and endeavoured at least to persuade the house that it would be fitter to proceed by petition to the queen than by a bill. But it was properly answered, that nothing had been gained by petitioning in the last parliament. After four days of eager debate, and more heat than had ever been witnessed, this ferment was suddenly appeased by one of those well-timed concessions by which skilful princes spare themselves the mortification of being overcome. Elizabeth sent down a message that she would revoke all grants that should be found injurious by fair trial at law: and Cecil rendered the somewhat ambiguous generality of this expression more satisfactory by an assurance that the existing patents should all be repealed, and no more be granted. This victory filled the Commons with joy, perhaps the more from being rather unexpected.[432] They addressed the queen with rapturous and hyperbolical acknowledgments, to which she answered in an affectionate strain, glancing only with an oblique irony at some of those movers in the debate, whom in her earlier and more vigorous years she would have keenly reprimanded. She repeated this a little more plainly at the close of the session, but still with commendation of the body of the Commons. So altered a tone must be ascribed partly to the growing spirit she perceived in her subjects, but partly also to those cares which clouded with listless melancholy the last scenes of her illustrious life.[433] The discontent that vented itself against monopolies was not a little excited by the increasing demands which Elizabeth was compelled to make upon the Commons in all her latter parliaments. Though it was declared in the preamble to the subsidy bill of 1593, that "these large and unusual grants, made to a most excellent princess on a most pressing and extraordinary occasion, should not at any time hereafter be drawn into a precedent," yet an equal sum was obtained in 1597, and one still greater in 1601. But money was always reluctantly given, and the queen's early frugality had accustomed her subjects to very low taxes; so that the debates on the supply in 1601, as handed down to us by Townsend, exhibit a lurking ill-humour, which would find a better occasion to break forth. _Influence of the Crown in Parliament._--The House of Commons, upon a review of Elizabeth's reign, was very far, on the one hand, from exercising those constitutional rights which have long since belonged to it, or even those which by ancient precedent they might have claimed as their own; yet, on the other hand, was not quite so servile and submissive an assembly as an artful historian has represented it. If many of its members were but creatures of power, if the majority was often too readily intimidated, if the bold and honest, but not very judicious, Wentworths were but feebly supported, when their impatience hurried them beyond their colleagues, there was still a considerable party sometimes carrying the house along with them, who with patient resolution and inflexible aim recurred in every session to the assertion of that one great privilege which their sovereign contested, the right of parliament to enquire into and suggest a remedy for every public mischief or danger. It may be remarked, that, the ministers, such as Knollys, Hatton, and Robert Cecil, not only sat among the Commons, but took a very leading part in their discussions; a proof that the influence of argument could no more be dispensed with than that of power. This, as I conceive, will never be the case in any kingdom where the assembly of the estates is quite subservient to the Crown. Nor should we put out of consideration the manner in which the Commons were composed. Sixty-two members were added at different times by Elizabeth to the representation; as well from places which had in earlier times discontinued their franchise, as from those to which it was first granted;[434] a very large proportion of them petty boroughs, evidently under the influence of the Crown or peerage. This had been the policy of her brother and sister, in order to counterbalance the country gentlemen, and find room for those dependants who had no natural interest to return them to parliament. The ministry took much pains with elections, of which many proofs remain.[435] The house accordingly was filled with placemen, civilians, and common lawyers grasping at preferment. The slavish tone of these persons, as we collect from the minutes of D'Ewes, is strikingly contrasted by the manliness of independent gentlemen. And as the house was by no means very fully attended, the divisions, a few of which are recorded, running from 200 to 250 in the aggregate, it may be perceived that the court, whose followers were at hand, would maintain a formidable influence. But this influence, however pernicious to the integrity of parliament, is distinguishable from that exertion of almost absolute prerogative, which Hume has assumed as the sole spring of Elizabeth's government, and would never be employed till some deficiency of strength was experienced in the other. _Debate on election of non-resident burgesses._--D'Ewes has preserved a somewhat remarkable debate on a bill presented in the session of 1571, in order to render valid elections of non-resident burgesses. According to the tenor of the king's writ, confirmed by an act passed under Henry V., every city and borough was required to elect none but members of their own community. To this provision, as a seat in the Commons' house grew more an object of general ambition, while many boroughs fell into comparative decay, less and less attention had been paid; till, the greater part of the borough representatives having become strangers, it was deemed by some expedient to repeal the ancient statute, and give a sanction to the innovation that time had wrought; while others contended in favour of the original usage, and seemed anxious to restore its vigour. It was alleged on the one hand by Mr. Norton that the bill would take away all pretence for sending unfit men, as was too often seen, and remove any objection that might be started to the sufficiency of the present parliament, wherein, for the most part against positive law, strangers to their several boroughs had been chosen: that persons able and fit for so great an employment ought to be preferred without regard to their inhabitancy; since a man could not be presumed to be the wiser for being a resident burgess: and that the whole body of the realm, and the service of the same, was rather to be respected than any private regard of place or person. This is a remarkable, and perhaps the earliest assertion, of an important constitutional principle, that each member of the House of Commons is deputed to serve, not only for his constituents, but for the whole kingdom; a principle which marks the distinction between a modern English parliament and such deputations of the estates as were assembled in several continental kingdoms; a principle to which the House of Commons is indebted for its weight and dignity, as well as its beneficial efficiency, and which none but the servile worshippers of the populace are ever found to gainsay. It is obvious that such a principle could never obtain currency, or even be advanced on any plausible ground, until the law for the election of resident burgesses had gone into disuse. Those who defended the existing law, forgetting, as is often the case with the defenders of existing laws, that it had lost its practical efficacy, urged that the inferior ranks using manual and mechanical arts ought like the rest to be regarded and consulted with on matters which concerned them, and of which strangers could less judge. "We," said a member, "who have never seen Berwick or St. Michael's Mount, can but blindly guess of them, albeit we look on the maps that come from thence, or see letters of instruction sent; some one whom observation, experience, and due consideration of that country hath taught, can more perfectly open what shall in question thereof grow, and more effectually reason thereupon, than the skilfullest otherwise whatsoever." But the greatest mischief resulting from an abandonment of their old constitution would be the interference of noblemen with elections; lords' letters, it was said, would from henceforth bear the sway; instances of which, so late as the days of Mary, were alleged, though no one cared to allude particularly to anything of a more recent date. Some proposed to impose a fine of forty pounds on any borough making its election on a peer's nomination. The bill was committed by a majority; but as no further entry appears in the Journals, we may infer it to have dropped.[436] It may be mentioned, as not unconnected with this subject, that in the same session a fine was imposed on the borough of Westbury for receiving a bribe of four pounds from Thomas Long, "being a very simple man and of small capacity to serve in that place;" and the mayor was ordered to repay the money. Long, however, does not seem to have been expelled. This is the earliest precedent on record for the punishment of bribery in elections.[437] _Assertion of privileges by Commons._--We shall find an additional proof that the House of Commons under the Tudor princes, and especially Elizabeth, was not so feeble and insignificant an assembly as has been often insinuated, if we look at their frequent assertion and gradual acquisition of those peculiar authorities and immunities which constitute what is called privilege of parliament. Of these the first, in order of time if not of importance, was their exemption from arrest on civil process during their session. Several instances occur under the Plantagenet dynasty, where this privilege was claimed and admitted; but generally by means of a distinct act of parliament, or at least by a writ of privilege out of chancery. The House of Commons for the first time took upon themselves to avenge their own injury in 1543, when the remarkable case of George Ferrers occurred. This is related in detail by Holingshed, and is perhaps the only piece of constitutional information we owe to him. Without repeating all the circumstances, it will be sufficient here to mention, that the Commons sent their serjeant with his mace to demand the release of Ferrers, a burgess who had been arrested on his way to the house; that the gaolers and sheriffs of London having not only refused compliance, but ill-treated the serjeant, they compelled them, as well as the sheriffs of London, and even the plaintiff who had sued the writ against Ferrers, to appear at the bar of the house, and committed them to prison; and that the king, in the presence of the judges, confirmed in the strongest manner this assertion of privilege by the Commons. It was however, so far at least as our knowledge extends, a very important novelty in constitutional practice; not a trace occurring in any former instance on record, either of a party being delivered from arrest at the mere demand of the serjeant, or of any one being committed to prison by the sole authority of the House of Commons. With respect to the first, "the chancellor," says Holingshed, "offered to grant them a writ of privilege, which they of the Commons' house refused, being of a clear opinion that all commandments and other acts proceeding from the nether house were to be done and executed by their serjeant without writ, only by show of his mace, which was his warrant." It might naturally seem to follow from this position, if it were conceded, that the house had the same power of attachment for contempt, that is, of committing to prison persons refusing obedience to lawful process, which our law attributes to all courts of justice, as essential to the discharge of their duties. The king's behaviour is worthy of notice: while he dexterously endeavours to insinuate that the offence was rather against him than the Commons, Ferrers happening to be in his service, he displays that cunning flattery towards them in their moment of exasperation, which his daughter knew so well how to employ.[438] _Other cases of privilege._--Such important powers were not likely to be thrown away, though their exertion might not always be thought expedient. The Commons had sometimes recourse to a writ of privilege in order to release their members under arrest, and did not repeat the proceeding in Ferrers's case till that of Smalley, a member's servant, in 1575, whom they sent their serjeant to deliver. And this was only "after sundry reasons, arguments, and disputations," as the journal informs us; and, what is more, after rescinding a previous resolution that they could find no precedents for setting at liberty any one in arrest, except by writ of privilege.[439] It is to be observed, that the privilege of immunity extended to the menial servants of members, till taken away by a statute of George III. Several persons however were, at different times, under Mary and Elizabeth, committed by the house to the Tower, or to the custody of their own serjeant, for assaults on their members.[440] Smalley himself above-mentioned, it having been discovered that he had fraudulently procured this arrest, in order to get rid of the debt, was committed for a month, and ordered to pay the plaintiff one hundred pounds, which was possibly the amount of what he owed.[441] One also, who had served a subpoena out of the star-chamber on a member in the session of 1584, was not only put in confinement, but obliged to pay the party's expenses, before they would discharge him, making his humble submission on his knees.[442] This is the more remarkable, inasmuch as the chancellor had but just before made answer to a committee deputed "to signify to him how by the ancient liberties of the house, the members thereof are privileged from being served with subpoenas," that "he thought the house had no such privilege, nor would he allow any precedents for it, unless they had also been ratified in the court of chancery."[443] They continued to enforce this summary mode of redress with no objection, so far as appears, of any other authority, till, by the end of the queen's reign, it had become their established law of privilege that "no subpoena or summons for the attendance of a member in any other court ought to be served, without leave obtained or information given to the house; and that the persons who procured or served such process were guilty of a breach of privilege, and were punishable by commitment or otherwise, by the order of the house."[444] The great importance of such a privilege was the security it furnished, when fully claimed and acted upon, against those irregular detentions and examinations by the council, and which, in despite of the promised liberty of speech, had, as we have seen, oppressed some of their most distinguished members. But it must be owned that by thus suspending all civil and private suits against themselves, the Commons gave too much encouragement to needy and worthless men who sought their walls as a place of sanctuary. This power of punishment, as it were for contempt, assumed in respect of those who molested members of the Commons by legal process, was still more naturally applicable to offences against established order committed by any of themselves. In the earliest record that is extant of their daily proceedings, the Commons' Journal of the first parliament of Edward VI., we find, on 21st January 1547-8, a short entry of an order that John Storie, one of the burgesses, shall be committed to the custody of the serjeant. The order is repeated the next day; on the next, articles of accusation are read against Storie. It is ordered on the following day that he shall be committed prisoner to the Tower. His wife soon after presents a petition, which is ordered to be delivered to the Protector. On the 20th of February, letters from Storie in the Tower are read. These probably were not deemed satisfactory, for it is not till the 2nd of March that we have an entry of a letter from Mr. Storie in the Tower with his submission. And an order immediately follows, that "the king's privy council in the nether house shall humbly declare unto the lord protector's grace, that the resolution of the house is, that Mr. Storie be enlarged and at liberty, out of prison; and to require the king's majesty to forgive him his offences in this case towards his majesty and his council." Storie was a zealous enemy of the reformation, and suffered death for treason under Elizabeth. His temper appears to have been ungovernable; even in Mary's reign he fell a second time under the censure of the house for disrespect to the speaker. It is highly probable that his offence in the present instance was some ebullition of virulence against the changes in religion; for the first entry concerning him immediately follows the third reading of the bill that established the English liturgy. It is also manifest that he had to atone for language disrespectful to the Protector's government, as well as to the house. But it is worthy of notice, that the Commons by their single authority commit their burgess first to their own officer, and next to the Tower; and that upon his submission they inform the Protector of their resolution to discharge him out of custody, recommending him to forgiveness as to his offence against the council, which, as they must have been aware, the privilege of parliament as to words spoken within its walls (if we are right in supposing such to have been the case) would extend to cover. It would be very unreasonable to conclude that this is the first instance of a member's commitment by order of the house, the earlier journals not being in existence. Nothing indicates that the course taken was unprecedented. Yet on the other hand we can as little infer that it rested on any previous usage; and the times were just such, in which a new precedent was likely to be established. The right of the house indeed to punish its own members for indecent abuse of the liberty of speech, may be thought the result naturally from the king's concession of that liberty; and its right to preserve order in debate is plainly incident to that of debating at all. In the subsequent reign of Mary, Mr. Copley incurred the displeasure of the house for speaking irreverend words of her majesty, and was committed to the serjeant at arms; but the despotic character of that government led the Commons to recede in some degree from the regard to their own privileges they had shown in the former case. The speaker was directed to declare this offence to the queen, and to request her mercy for the offender. Mary answered, that she would well consider that request, but desired that Copley should be examined as to the cause of his behaviour. A prorogation followed the same day, and of course no more took place in this affair.[445] A more remarkable assertion of the house's right to inflict punishment on its own members occurred in 1581, and being much better known than those I have mentioned, has been sometimes treated as the earliest precedent. One Arthur Hall, a burgess for Grantham, was charged with having caused to be published a book against the present parliament, on account of certain proceedings in the last session, wherein he was privately interested, "not only reproaching some particular good members of the house, but also very much slanderous and derogatory to its general authority, power, and state, and prejudicial to the validity of its proceedings in making and establishing of laws." Hall was the master of Smalley, whose case has been mentioned above, and had so much incurred the displeasure of the house by his supposed privity to the fraud of his servant, that a bill was brought in and read a first time, the precise nature of which does not appear, but expressed to be against him and two of his servants. It seems probable, from these and some other passages in the entries that occur on this subject in the journal, that Hall in his libel had depreciated the House of Commons as an estate of parliament, and especially in respect of its privileges, pretty much in the strain which the advocates of prerogative came afterwards to employ. Whatever share therefore personal resentment may have had in exasperating the house, they had a public quarrel to avenge against one of their members, who was led by pique to betray their ancient liberties. The vengeance of popular assemblies is not easily satisfied. Though Hall made a pretty humble submission, they went on, by a unanimous vote, to heap every punishment in their power upon his head. They expelled him, they imposed a fine of five hundred marks upon him, they sent him to the Tower until he should make a satisfactory retractation. At the end of the session he had not been released; nor was it the design of the Commons that his imprisonment should then terminate; but their own dissolution, which ensued, put an end to the business.[446] Hall sat in some later parliaments. This is the leading precedent, as far as records show, for the power of expulsion, which the Commons have ever retained without dispute of those who would most curtail their privileges. But in 1558 it had been put to the vote whether one outlawed and guilty of divers frauds should continue to sit, and carried in his favour by a very small majority; which affords a presumption that the right of expulsion was already deemed to appertain to the house.[447] They exercised it with no small violence in the session of 1585 against the famous Dr. Parry, who having spoken warmly against the bill inflicting the penalty of death on jesuits and seminary priests, as being cruel and bloody, the Commons not only ordered him into the custody of the serjeant, for opposing a bill approved of by a committee, and directed the speaker to reprimand him upon his knees, but on his failing to make a sufficient apology, voted him no longer a burgess of that house.[448] The year afterwards Bland, a currier, was brought to their bar for using what were judged contumelious expressions against the house for something they had done in a matter of little moment, and discharged on account of his poverty, on making submission, and paying a fine of twenty shillings.[449] In this case they perhaps stretched their power somewhat farther than in the case of Arthur Hall, who, as one of their body, might seem more amenable to their jurisdiction. _Privilege of determining contested elections claimed by the house._--The Commons asserted in this reign, perhaps for the first time, another most important privilege, the right of determining all matters relative to their own elections. Difficulties of this nature had in former times been decided in chancery, from which the writ issued, and into which the return was made. Whether no cases of interference on the part of the house had occurred, it is impossible to pronounce, on account of the unsatisfactory state of the rolls and journals of parliament under Edward IV., Henry VII. and Henry VIII. One remarkable entry, however, may be found in the reign of Mary, when a committee is appointed "to inquire if Alexander Nowell, prebendary of Westminster, may be of the house;" and it is declared next day by them, that "Alexander Nowell, being prebendary in Westminster, and thereby having voice in the convocation-house, cannot be a member of this house; and so agreed by the house, and the queen's writ to be directed for another burgess in his place."[450] Nothing farther appears on record till in 1586 the house appointed a committee to examine the state and circumstances of the returns for the county of Norfolk. The fact was, that the chancellor had issued a second writ for this county, on the ground of some irregularity in the first return, and a different person had been elected. Some notice having been taken of this matter in the Commons, the speaker received orders to signify to them her majesty's displeasure that "the house had been troubled with a thing impertinent for them to deal with, and only belonging to the charge and office of the lord chancellor, whom she had appointed to confer with the judges about the returns for the county of Norfolk, and to act therein according to justice and right." The house, in spite of this peremptory inhibition, proceeded to nominate a committee to examine into and report the circumstances of these returns; who reported the whole case with their opinion, that those elected on the first writ should take their seats, declaring further that they understood the chancellor and some of the judges to be of the same opinion; but that "they had not thought it proper to inquire of the chancellor what he had done, because they thought it prejudicial to the privilege of the house to have the same determined by others than such as were members thereof. And though they thought very reverently of the said lord chancellor and judges, and knew them to be competent judges in their places; yet in this case they took them not for judges in parliament in this house: and thereupon required that the members, if it were so thought good, might take their oaths and be allowed of by force of the first writ, as allowed by the censure of this house, and not as allowed of by the said lord chancellor and judges. Which was agreed unto by the whole house."[451] This judicial control over their elections was not lost. A committee was appointed, in the session of 1589, to examine into sundry abuses of returns, among which is enumerated that some are returned for new places.[452] And several instances of the house's deciding on elections occur in subsequent parliaments. This tenaciousness of their own dignity and privileges was shown in some disagreements with the upper house. They complained to the Lords in 1597, that they had received a message from the Commons at their bar without uncovering, or rising from their places. But the Lords proved, upon a conference, that this was agreeable to usage in the case of messages; though when bills were brought up from the lower house, the speaker of the Lords always left his place, and received them at the bar.[453] Another remonstrance of the Commons, against having amendments to bills sent down to them on paper instead of parchment, seems a little frivolous, but serves to indicate a rising spirit, jealous of the superiority that the peers had arrogated.[454] In one point more material, and in which they had more precedent on their side, the Commons successfully vindicated their privilege. The Lords sent them a message in the session of 1593, reminding them of the queen's want of a supply, and requesting that a committee of conference might be appointed. This was accordingly done, and Sir Robert Cecil reported from it that the Lords would consent to nothing less than a grant of three entire subsidies, the Commons having shown a reluctance to give more than two. But Mr. Francis Bacon said, "he yielded to the subsidy, but disliked that this house should join with the upper house in granting it. For the custom and privilege of this house hath always been, first to make offer of the subsidies from hence, then to the upper house; except it were that they present a bill unto this house, with desire of our assent thereto, and then to send it up again." But the house were now so much awakened to the privilege of originating money-bills, that, in spite of all the exertions of the court, the proposition for another conference with the Lords was lost on a division by 217 to 128.[455] It was by his opposition to the ministry in this session, that Bacon, who acted perhaps full as much from pique towards the Cecils, and ambitious attachment to Essex, as from any real patriotism, so deeply offended the queen, that, with all his subsequent pliancy, he never fully reinstated himself in her favour.[456] _The English constitution not admitted to be an absolute monarchy._--That the government of England was a monarchy, bounded by law, far unlike the actual state of the principal kingdoms on the Continent, appears to have been so obvious and fundamental a truth, that flattery itself did not venture directly to contravene it. Hume has laid hold of a passage in Raleigh's preface to his _History of the World_ (written indeed a few years later than the age of Elizabeth), as if it fairly represented public opinion as to our form of government. Raleigh says that Philip II. "attempted to make himself not only an absolute monarch over the Netherlands, like unto the kings and sovereigns of England and France; but, Turk-like, to tread under his feet all their national and fundamental laws, privileges, and ancient rights." But who, that was really desirous of establishing the truth, would have brought Raleigh into court as an unexceptionable witness on such a question? Unscrupulous ambition taught men in that age who sought to win or regain the Crown's favour, to falsify all law and fact in behalf of prerogative, as unblushingly as our modern demagogues exaggerate and distort the liberties of the people.[457] The sentence itself, if designed to carry the full meaning that Hume assigns to it, is little better than an absurdity. For why were the rights and privileges of the Netherlands more fundamental than those of England? and by what logic could it be proved more Turk-like to impose the tax of the twentieth penny, or to bring Spanish troops into those provinces, in contravention of their ancient charters, than to transgress the Great Charter of this kingdom, with all those unrescinded statutes and those traditional unwritten liberties which were the ancient inheritance of its subjects? Or could any one, conversant in the slightest degree with the two countries, range in the same class of absolute sovereigns the kings of France in England? The arbitrary acts of our Tudor princes, even of Henry VIII., were trifling in comparison of the despotism of Francis I. and Henry II., who forced their most tyrannical ordinances down the throats of the parliament of Paris with all the violence of military usurpers. No permanent law had ever been attempted in England, nor any internal tax imposed, without consent of the people's representatives. No law in France had ever received such consent; nor had the taxes, enormously burthensome as they were in Raleigh's time, been imposed, for one hundred and fifty years past, by any higher authority than a royal ordinance. If a few nobler spirits had protested against the excessive despotism of the house of Valois; if La Boetie had drunk at the springs of classical republicanism; if Hottoman had appealed to the records of their freeborn ancestry that surrounded the throne of Clovis; if Languet had spoken in yet a bolder tone of a rightful resistance to tyranny;[458] if the jesuits and partisans of the League had cunningly attempted to win men's hearts to their faction by the sweet sounds of civil liberty and the popular origin of politic rule; yet these obnoxious paradoxes availed little with the nation, which, after the wild fascination of a rebellion arising wholly from religious bigotry had passed away, relapsed at once into its patient loyalty, its self-complacent servitude. But did the English ever recognise, even by implication, the strange parallels which Raleigh has made for their government with that of France, and Hume with that of Turkey? The language adopted in addressing Elizabeth was always remarkably submissive. Hypocritical adulation was so much among the vices of that age, that the want of it passed for rudeness. Yet Onslow, speaker of the parliament of 1566, being then solicitor-general, in addressing the queen says: "By our common law, although there be for the prince provided many princely prerogatives and royalties, yet it is not such as the prince can take money or other things, or do as he will at his own pleasure without order, but quietly to suffer his subjects to enjoy their own, without wrongful oppression; wherein other princes by their liberty do take as pleaseth them."[459] In the first months of Elizabeth's reign, Aylmer, afterwards Bishop of London, published an answer to a book by John Knox, against female monarchy, or, as he termed it, _Blast of the Trumpet against the Monstrous Regiment of Women_; which, though written in the time of Mary, and directed against her, was of course not acceptable to her sister. The answer relies, among other arguments, on the nature of the English constitution, which, by diminishing the power of the Crown, renders it less unfit to be worn by a woman. "Well," he says, "a woman may not reign in England! Better in England than anywhere, as it shall well appear to him that without affection will consider the kind of regimen. While I compare ours with other, as it is in itself, and not maimed by usurpation, I can find none either so good or so indifferent. The regiment of England is not a mere monarchy, as some for lack of consideration think, nor a mere oligarchy nor democracy, but a rule mixed of all these, wherein each one of these have or should have like authority. The image whereof, and not the image but the thing indeed, is to be seen in the parliament-house, wherein you shall find these three estates; the king or queen which representeth the monarchy, the noblemen which be the aristocracy, and the burgesses and knights the democracy. If the parliament use their privileges, the king can ordain nothing without them: if he do, it is his fault in usurping it, and their fault in permitting it. Wherefore, in my judgment, those that in King Henry VIII.'s days would not grant him that his proclamations should have the force of a statute, were good fathers of the country, and worthy commendation in defending their liberty. But to what purpose is all this? To declare that it is not in England so dangerous a matter to have a woman ruler, as men take it to be. For first it is not she that ruleth, but the laws, the executors whereof be her judges appointed by her, her justices and such other officers. Secondly, she maketh no statutes or laws, but the honourable court of parliament; she breaketh none, but it must be she and they together, or else not. If on the other part the regiment were such as all hanged on the king's or queen's will, and not upon the laws written; if she might decree and make laws alone without her senate; if she judged offences according to her wisdom, and not by limitation of statutes and laws; if she might dispose alone of war and peace; if, to be short, she were a mere monarch, and not a mixed ruler, you might peradventure make me to fear the matter the more, and the less to defend the cause."[460] This passage, notwithstanding some slight mistakes it contains, affords a proof of the doctrine current among Englishmen in 1559, and may perhaps be the less suspected, as it does not proceed from a skilful pen. And the quotations I have made in the last chapter from Hooker are evidence still more satisfactory, on account of the gravity and judiciousness of the writer, that they continued to be the orthodox faith in the later period of Elizabeth's reign. It may be observed, that those who speak of the limitations of the sovereign's power, and of the acknowledged liberties of the subject, use a distinct and intelligible language; while the opposite tenets are insinuated by means of vague and obscure generalities, as in the sentence above quoted from Raleigh. Sir Thomas Smith, secretary of state to Elizabeth, has bequeathed us a valuable legacy in his treatise on the commonwealth of England. But undoubtedly he evades, as far as possible, all great constitutional principles, and treats them, if at all, with a vagueness and timidity very different from the tone of Fortescue. He thus concludes his chapter on the parliament: "This is the order and form of the highest and most authentical court of England, by virtue whereof all these things be established whereof I spoke before, and no other means accounted available to make any new _forfeiture of life, members, or lands_, of any Englishman, where there was no law ordered for it before."[461] This leaves no small latitude for the authority of royal proclamations, which the phrase, I make no question, was studiously adopted in order to preserve. _Pretensions of the crown._--There was unfortunately a notion very prevalent in the cabinet of Elizabeth, though it was not quite so broadly or at least so frequently promulgated as in the following reigns, that, besides the common prerogatives of the English Crown, which were admitted to have legal bounds, there was a kind of paramount sovereignty, which they denominated her absolute power, incident, as they pretended, to the abstract nature of sovereignty, and arising out of its primary office of preserving the state from destruction. This seemed analogous to the dictatorial power, which might be said to reside in the Roman senate, since it could confer it upon an individual. And we all must, in fact, admit that self-preservation is the first necessity of commonwealths as well as persons, which may justify, in Montesquieu's poetical language, the veiling of the statues of liberty. Thus martial law is proclaimed during an invasion, and houses are destroyed in expectation of a siege. But few governments are to be trusted with this insidious plea of necessity, which more often means their own security than that of the people. Nor do I conceive that the ministers of Elizabeth restrained this pretended absolute power, even in theory, to such cases of overbearing exigency. It was the misfortune of the sixteenth century to see kingly power strained to the highest pitch in the two principal European monarchies. Charles V. and Philip II. had crushed and trampled the ancient liberties of Castile and Arragon. Francis I. and his successors, who found the work nearly done to their hands, had inflicted every practical oppression upon their subjects. These examples could not be without their effect on a government so unceasingly attentive to all that passed on the stage of Europe.[462] Nor was this effect confined to the court of Elizabeth. A king of England, in the presence of absolute sovereigns, or perhaps of their ambassadors, must always feel some degree of that humiliation with which a young man, in check of a prudent father, regards the careless prodigality of the rich heirs with whom he associates. Good sense and elevated views of duty may subdue the emotion; but he must be above human nature who is insensible to the contrast. There must be few of my readers who are unacquainted with the animated sketch that Hume has delineated of the English constitution under Elizabeth. It has been partly the object of the present chapter to correct his exaggerated outline; and nothing would be more easy than to point at other mistakes into which he has fallen through prejudice, through carelessness, or through want of acquaintance with law. His capital and inexcusable fault in everything he has written on our constitution is to have sought for evidence upon one side only of the question. Thus the remonstrance of the judges against arbitrary imprisonment by the council is infinitely more conclusive to prove that the right of personal liberty existed, than the fact of its infringement can be to prove that it did not. There is something fallacious in the negative argument which he perpetually uses, that because we find no mention of any umbrage being taken at certain strains of prerogative, they must have been perfectly consonant to law. For if nothing of this could be traced, which is not so often the case as he represents it, we should remember that even when a constant watchfulness is exercised by means of political parties and a free press, a nation is seldom alive to the transgressions of a prudent and successful government. The character, which on a former occasion I have given of the English constitution under the house of Plantagenet, may still be applied to it under the line of Tudor, that it was a monarchy greatly limited by law, but retaining much power that was ill calculated to promote the public good, and swerving continually into an irregular course, which there was no restraint adequate to correct. It may be added, that the practical exercise of authority seems to have been less frequently violent and oppressive, and its legal limitations better understood in the reign of Elizabeth, than for some preceding ages; and that sufficient indications had become distinguishable before its close, from which it might be gathered that the seventeenth century had arisen upon a race of men in whom the spirit of those who stood against John and Edward was rekindled with a less partial and a steadier warmth.[463] FOOTNOTES: [369] _State Trials_, i. 1148. [370] _Id._ 1256. [371] _Id._ 1403. [372] Murden, 337. Dr. Lingard has fully established, what indeed no one could reasonably have disputed, Elizabeth's passion for Anjou; and says very truly, "the writers who set all this down to policy cannot have consulted the original documents."--P. 149. It was altogether repugnant to sound policy. Persons, the jesuit, indeed says, in his famous libel, _Leicester's Commonwealth_, written not long after this time, that it would have been "honourable, convenient, profitable, and needful:" which every honest Englishman would interpret by the rule of contraries. Sussex wrote indeed to the queen in favour of the marriage (Lodge, ii. 177); and Cecil undoubtedly professed to favour it; but this must have been out of obsequiousness to the queen. It was a habit of this minister to set down briefly the arguments on both sides of a question, sometimes in parallel columns, sometimes successively; a method which would seem too formal in our age, but tending to give himself and others a clearer view of the case. He has done this twice in the present instance (Murden, 322, 331); and it is evident that he does not, and cannot, answer his own objections to the match. When the council waited on her with this resolution in favour of the marriage, she spoke sharply to those whom she believed to be against it. Yet the treaty went on for two years; her coquetry in this strange delay breeding her, as Walsingham wrote from Paris, "greater dishonour than I dare commit to paper." Strype's _Annals_, iii. 2. That she ultimately broke it off, must be ascribed to the suspiciousness and irresolution of her character, which, acting for once conjointly with her good understanding, overcame a disgraceful inclination. [373] Strype, iii. 480. Stubbe always signed himself Scæva, in these left-handed productions. [374] Lodge, ii. 412; iii. 49. [375] Several volumes of the Harleian MSS. illustrate the course of government under Elizabeth. The copious analysis in the catalogue, by Humphrey Wanley and others, which I have in general found accurate, will, for most purposes, be sufficient. See particularly vol. 703. A letter, _inter alia_, in this (folio 1) from Lord Hunsdon and Walsingham to the sheriff of Sussex, directs him not to assist the creditors of John Ashburnham in molesting him, "till such time as our determination touching the premises shall be known," Ashburnham being to attend the council to prefer his complaint. See also vols. 6995, 6996, 6997, and many others. The Lansdowne catalogue will furnish other evidences. [376] Anderson's _Reports_, i. 297. It may be found also in the _Biographia Britannica_, and the _Biographical Dictionary_, art. Anderson. [377] Lansdowne MSS. lviii. 87. The Harleian MS. 6846 is a mere transcript from Anderson's _Reports_, and consequently of no value. There is another in the same collection, at which I have not looked. [378] Hume says, "that the queen had taken a dislike to the smell of this useful plant." But this reason, if it existed, would hardly have induced her to prohibit its cultivation throughout the kingdom. The real motive appears in several letters of the Lansdowne collection. By the domestic culture of woad, the customs on its importation were reduced; and this led to a project of levying a sort of excise upon it at home. _Catalogue of Lansdowne MSS._ xlix. 32-60. The same principle has since caused the prohibition of sowing tobacco. [379] Camden, 476. [380] Rymer, xvi. 448. [381] Many of these proclamations are scattered through Rymer; and the whole have been collected in a volume. [382] By a proclamation in 1560, butchers killing flesh in Lent are made subject to a specific penalty of £20; which was levied upon one man. Strype's _Annals_, i. 235. This seems to have been illegal. [383] Lord Camden in 1766. Hargrave, in preface to "Hale de Jure Coronæ," in _Law Tracts_, vol. i. [384] We find an exclusive privilege granted in 1563 to Thomas Cooper, afterwards Bishop of Winchester, to print his _Thesaurus_, or Latin dictionary for twelve years (Rymer, xv. 620); and to Richard Wright to print his translation of Tacitus during his natural life; any one infringing this privilege to forfeit 40_s._ for every printed copy. _Id._ xvi. 97. [385] Strype's _Parker_, 221. By the 51st of the queen's injunctions, in 1559, no one might print any book or paper whatsoever unless the same be first licensed by the council or ordinary. [386] A proclamation, dated February 1589, against seditious and schismatical books and writings, commands all persons who shall have in their custody any such libels against the order and government of the church of England, or the rites and ceremonies used in it, to bring and deliver up the same with convenient speed to their ordinary. _Life of Whitgift_, Appendix 126. This has probably been one cause of the extreme scarcity of these puritanical pamphlets. [387] Strype's _Grindal_, 124, and Append. 43, where a list of these books is given. [388] Strype's _Whitgift_, 222, and Append. 94. The archbishop exercised his power over the press, as may be supposed, with little moderation. Not confining himself to the suppression of books favouring the two religions adverse to the church, he permitted nothing to appear that interfered in the least with his own notions. Thus we find him seizing an edition of some works of Hugh Broughton, an eminent Hebrew scholar. This learned divine differed from Whitgift about Christ's descent to hell. It is amusing to read that ultimately the primate came over to Broughton's opinion; which, if it prove some degree of candour, is a glaring evidence of the advantages of that free enquiry he had sought to suppress. P. 384, 431. [389] Camden, 449; Strype's _Annals_, ii. 288. The queen had been told, it seems, of what was done in Wyatt's business, a case not all parallel; though there was no sufficient necessity even in that instance to justify the proceeding by martial law. But bad precedents always beget "progeniem vitiosiorem." There was a difficulty how to punish Burchell capitally, which probably suggested to the queen this strange expedient. It is said, which is full as strange, that the bishops were about to pass sentence on him for heresy, in having asserted that a papist might lawfully be killed. He put an end, however, to this dilemma, by cleaving the skull of one of the keepers in the Tower, and was hanged in a common way. [390] Strype's _Annals_, iii. 570; _Life of Whitgift_, Append. 126. [391] Rymer, xvi. 279. [392] Carte, 693, from Stowe. [393] Strype's _Annals_, i. 535. [394] Strype, iii. Append. 147. This was exacted in order to raise men for service in the Low Countries. But the beneficed clergy were always bound to furnish horses and armour, or their value, for the defence of the kingdom in peril of invasion or rebellion. An instance of their being called on for such a contingent occurred in 1569. Strype's _Parker_, 273; and Rymer will supply many others in earlier times. The magistrates of Cheshire and Lancashire had imposed a charge of eightpence a week on each parish of those counties for the maintenance of recusants in custody. This, though very nearly borne out by the letter of a recent statute (14th Eliz. c. 5), was conceived by the inhabitants to be against law. We have, in Strype's _Annals_, vol. iii. Append. 56, a letter from the privy council, directing the charge to be taken off. It is only worth noticing, as it illustrates the jealousy which the people entertained of anything approaching to taxation without consent of parliament, and the caution of the ministry in not pushing any exertion of prerogative farther than would readily be endured. [395] Murden, 632. That some degree of intimidation was occasionally made use of, may be inferred from the following letter of Sir Henry Cholmley to the mayor and aldermen of Chester, in 1597. He informs them of letters received by him from the council, "whereby I am commanded in all haste to require you that you and every of you send in your several sums of money unto Torpley (Tarporly) on Friday next the 23rd December, or else that you and every of you give me meeting there, the said day and place, to enter severally into bond to her highness for your appearance forthwith before their lordships, to show cause wherefore you and every of you should refuse to pay her majesty loan according to her highness several privy-seals by you received, letting you wit that I am now directed by other letters from their lordships to pay over the said money to the use of her majesty, and to send and certify the said bonds so taken: which praying you heartily to consider of as the last direction of the service, I heartily bid you farewell." Harl. MSS. 2173, 10. [396] Strype, ii. 102. In Haynes, p. 518, is the form of a circular letter or privy-seal, as it was called from passing that office, sent in 1569, a year of great difficulty, to those of whose aid the queen stood in need. It contains a promise of repayment at the expiration of twelve months. A similar application was made through the lord-lieutenants in their several counties, to the wealthy and well disposed, in 1588, immediately after the destruction of the Armada. The loans are asked only for the space of a year, as "heretofore has been yielded unto her majesty in times of less need and danger, and yet always fully repaid." Strype, iii. 535. Large sums of money are said to have been demanded of the citizens of London in 1599. Carte, 675. It is perhaps to this year that we may refer a curious fact mentioned in Mr. Justice Hutton's judgment in the case of ship-money. "In the time of Queen Elizabeth (he says), who was a gracious and a glorious queen, yet in the end of her reign, whether through covetousness, or by reason of the wars that came upon her, I know not by what counsel she desired benevolence, the statue of 2nd Richard III. was pressed, yet it went so far, that by commission and direction money was gathered in every inn of court; and I myself for my part paid twenty shillings. But when the queen was informed by her judges that this kind of proceeding was against law, she gave directions to pay all such sums as were collected back; and so I (as all the rest of our house, and as I think of other houses too) had my twenty shillings repaid me again; and privy counsellors were sent down to all parts, to tell them that it was for the defence of the realm, and it should be repaid them again." _State Trials_, iii. 1199. [397] Haynes, 518. Hume has exaggerated this, like other facts, in his very able, but partial, sketch of the constitution in Elizabeth's reign. [398] The following are a few specimens, copied from the Lansdowne catalogue. "Sir Antony Cooke to Sir William Cecil, that he would move Mr. Peters to recommend Mr. Edward Stanhope to a certain young lady of Mr. P.'s acquaintance, whom Mr. Stanhope was desirous to marry."--Jan. 25, 1563, lxxi. 73. "Sir John Mason to Sir William Cecil, that he fears his young landlord, Spelman, has intentions of turning him out of his house, which will be disagreeable; hopes therefore Sir William C. will speak in his behalf."--Feb. 4, 1566, _id._ 74. "Lord Stafford to Lord Burleigh, to further a match between a certain rich citizen's daughter and his son; he requests Lord B. to appoint the father to meet him (Lord Stafford) some day at his house, 'where I will in few words make him so reasonable an offer as I trust he will not disallow.'"--lxviii. 20. "Lady Zouch to Lord Burleigh, for his friendly interposition to reconcile Lord Zouch her husband, who had forsaken her through jealousy."--1593, lxxiv. 72. [399] _Biographia Britannica_, art. Cecil. [400] Townsend's manuscript has been separately published; but I do not find that D'Ewes has omitted anything of consequence. [401] D'Ewes, p. 82; Strype, i. 258, from which latter passage it seems that Cecil was rather adverse to the proposal. [402] D'Ewes, p. 85. The speech which Hume, on D'Ewes's authority, has put into the queen's mouth at the end of this session, is but an imperfect copy or abridgment of one which she made in 1566; as D'Ewes himself afterwards confesses. Her real answer to the speaker in 1563 is in Harrington's _Nugæ Antiquæ_, vol. i. p. 80. [403] Camden, p. 400. [404] The courtiers told the house, that the queen intended to marry in order to divert them from their request that they would name her successor. Strype, vol. i. p. 494. [405] D'Ewes, p. 128. [406] _Id._ p. 116; Journals, 8th Oct., 25th Nov., 2nd Jan. [407] D'Ewes, p. 141. [408] D'Ewes, 156, etc. There is no mention of Strickland's business in the journal. [409] Something of this sort seems to have occurred in the session of 1566, as may be inferred from the lord keeper's reproof to the speaker for calling her majesty's letters patent in question. _Id._ 115. [410] _Id._ 158; Journals, 7 Apr. [411] Journals, 9 and 10 Apr. [412] D'Ewes, 159. [413] D'Ewes, 151. [414] Bell, I suppose, had reconciled himself to the court, which would have approved no speaker chosen without its recommendation. There was always an understanding between this servant of the house and the government. Proofs and presumptions of this are not unfrequent. In Strype's _Annals_, vol. iv. p. 124, we find instructions for the speaker's speech in 1592, drawn up by Lord Burleigh, as might very likely be the case on other occasions. [415] D'Ewes, 219. [416] _Id._, 213, 214. [417] D'Ewes, 236. [418] D'Ewes, 260. [419] _Id._ 282. [420] D'Ewes, 410. [421] P. 438. Townsend calls this gentleman Davenport, which no doubt was his true name. [422] D'Ewes, 433. [423] _Id. 440 et post._ [424] _Id._ 470. [425] D'Ewes, 474; Townsend, 60. [426] _Id._ 62. [427] See the letter in Lodge's _Illustrations_, vol. iii. 34. Townsend says he was committed to Sir John Fortescue's keeping, a gentler sort of imprisonment. P. 61. [428] D'Ewes, 470. [429] Birch's _Memoirs of Elisabeth_, i. 96. [430] Strype has published, from Lord Burleigh's manuscripts, a speech made in the parliament of 1589 against the subsidy then proposed. _Annals_, vol. iii. Append. 238. Not a word about this occurs in D'Ewes's Journal; and I mention it as an additional proof how little we can rely on negative inferences as to proceedings in parliament at this period. [431] D'Ewes, 547. [432] Their joy and gratitude were rather premature, for her majesty did not revoke all of them; as appears by Rymer, xvi. 540, and Carte, iii. 712. A list of them, dated May 1603 (Lodge, iii. 159), seems to imply that they were still existing. [433] D'Ewes, 619, 644, etc. The speeches made in this parliament are reported more fully than usual by Heywood Townsend, from whose journal those of most importance have been transcribed by D'Ewes. Hume has given considerable extracts, for the sole purpose of inferring from this very debate on monopolies, that the royal prerogative was, according to the opinion of the House of Commons itself, hardly subject to any kind of restraint. But the passages he selects are so unfairly taken (some of them being the mere language of courtiers, others separated from the context, in order to distort their meaning), that no one who compares them with the original can acquit him of extreme prejudice. The adulatory strain in which it was usual to speak of the sovereign often covered a strong disposition to keep down his authority. Thus when a Mr. Davies says in this debate: "God hath given that power to absolute princes, which he attributes to himself--Dixi quod dii estis;" it would have been seen, if Hume had quoted the following sentence, that he infers from hence, that justice being a divine attribute, the king can do nothing that is unjust, and consequently cannot grant licences to the injury of his subjects. Strong language was no doubt used in respect of the prerogative. But it is erroneous to assert, with Hume, that it came equally from the courtiers and country gentlemen, and was admitted by both. It will chiefly be found in the speeches of Secretary Cecil, the official defender of prerogative, and of some lawyers. Hume, after quoting an extravagant speech ascribed to Sergeant Heyle, that "all we have is her majesty's, and she may lawfully at any time take it from us; yea, she hath as much right to all our lands and goods as to any revenue of her crown," observes that Heyle was an eminent lawyer, a man of character. That Heyle was high in his profession is beyond doubt; but in that age, as has since, though from the change of times less grossly, continued to be the case, the most distinguished lawyers notoriously considered the court and country as plaintiff and defendant in a great suit, and themselves as their retained advocates. It is not likely, however, that Heyle should have used the exact words imputed to him. He made, no doubt, a strong speech for prerogative, but so grossly to transcend all limits of truth and decency seems even beyond a lawyer seeking office. Townsend and D'Ewes write with a sort of sarcastic humour, which is not always to be taken according to the letter. D'Ewes, 433; Townsend, 205. Hume proceeds to tell us, that it was asserted this session, that the speaker might either admit or reject bills in the house; and remarks, that the very proposal of it is a proof at what a low ebb liberty was at that time in England. There cannot be a more complete mistake. No such assertion was made; but a member suggested that the speaker might, as the consuls in the Roman senate used, appoint the order in which bills should be read; at which speech, it is added, some hissed. D'Ewes, 677. The present regularity of parliamentary forms, so justly valued by the house, was yet unknown; and the members called confusedly for the business they wished to have brought forward. [434] _Parl. Hist._ 958. In the session of 1571, a committee was appointed to confer with the attorney and solicitor-general about the return of burgesses from nine places which had not been presented in the last parliament. But in the end it was "ordered, by Mr. Attorney's assent, that the burgesses shall remain according to their returns; for that the validity of the charters of their towns is elsewhere to be examined, if cause be." D'Ewes p. 156, 159. D'Ewes observes that it was very common in former times, in order to avoid the charge of paying wages to their burgesses, that a borough which had fallen into poverty or decay, either got licence of the sovereign for the time being to be discharged from electing members, or discontinued it of themselves; but that of late the members for the most part bearing their own charges, many of those towns which had thus discontinued their privilege, renewed it both in Elizabeth's reign and that of James. P. 80. This could only have been, it is hardly necessary to say, by obtaining writs out of chancery for that purpose. As to the payment of wages, the words of D'Ewes intimate that it was not entirely disused. In the session of 1586, the borough of Grantham complained that Arthur Hall (whose name now appears for the last time) had sued them for wages due to him as their representative in the preceding parliament; alleging that, as well by reason of his negligent attendance and some other offences by him committed in some of its sessions, as of his promise not to require any such wages, they ought not to be charged; and a committee having been appointed to enquire into this, reported that they had requested Mr. Hall to remit his claim for wages, which he had freely done. D'Ewes, p. 417. [435] Strype mentions letters from the council to Mildmay, Sheriff of Essex, in 1559, about the choice of knights. _Annals_, v. i. p. 32. And other instances of interference may be found in the Lansdowne and Harleian collections. Thus we read that a Mr. Copley used to nominate burgesses for Gatton, "for that there were no burgesses in the borough." The present proprietor being a minor in custody of the court of wards, Lord Burleigh directs the Sheriff of Surrey to make no return without instructions from himself; and afterwards orders him to cancel the name of Francis Bacon in his indenture, he being returned for another place, and to substitute Edward Brown. Harl. MSS. DCCIII. 16. I will introduce in this place, though not belonging to the present reign, a proof that Henry VIII. did not trust altogether to the intimidating effects of his despotism for the obedience of parliament, and that his ministers looked to the management of elections, as their successors have always done. Sir Robert Sadler writes to some one, whose name does not appear, to inform him that the Duke of Norfolk had spoken to the king, who was well content he should be a burgess of Oxford; and that he should "order himself in the said _room_ according to such instructions as the said Duke of Norfolk should give him from the king:" if he is not elected at Oxford, the writer will recommend him to some of "my lord's towns of his bishopric of Winchester." Cotton MSS. Cleopatra E. iv. 178. Thus we see that the practice of our government has always been alike; and we may add the same of the nobility, who interfered with elections full as continually, and far more openly, than in modern times. The difference is, that a secretary of the treasury, or peer's agent, does that with some precaution of secrecy, which the council board, or the peer himself, under the Tudors, did by express letters to the returning officer; and that the operating motive is the prospect of a good place in the excise or customs for compliance, rather than that of lying some months in the Fleet for disobedience. A very late writer has asserted, as an undoubted fact, which "historic truth requires to be mentioned," that for the first parliament of Elizabeth, "five candidates were nominated by the court for each borough, and three for each county; and by the authority of the sheriffs, the members were chosen from among the candidates." Butler's _Book of the Roman Catholic Church_, p. 225. I never met with any tolerable authority for this, and believe it to be a mere fabrication; not certainly of Mr. Butler, who is utterly incapable of a wilful deviation from truth, but of some of those whom he too implicitly follows. [436] D'Ewes, 168. [437] Journals, p. 88. [438] Holingshed, vol. iii. p. 824 (4to edit.); Hatsell's _Precedents_, vol. i. p. 53. Mr. Hatsell inclines too much, in my opinion, to depreciate the authority of this case, imagining that it was rather as the king's servant, than as a member of the house, that Ferrers was delivered. But, though Henry artfully endeavours to rest it chiefly on this ground, it appears to me that the Commons claim the privilege as belonging to themselves, without the least reference to this circumstance. If they did not always assert it afterwards, this negative presumption is very weak, when we consider how common it was to overlook or recede from precedents, before the constitution had been reduced into a system. Carte, vol. iii. p. 164, endeavours to discredit the case of Ferrers as an absolute fable, and certainly points out some inaccuracy as to dates; but it is highly improbable that the whole should be an invention. He returns to the subject afterwards (p. 541), and, with a folly almost inconceivable even in a Jacobite, supposes the puritans to have fabricated the tale, and prevailed on Holingshed to insert it in his history. [439] Journals, Feb. 22nd and 27th. [440] Hatsell, 73, 92, 119. [441] _Id._ 90. [442] _Id._ 97. [443] _Id._ 96. [444] _Id._ 119. [445] Journals, 5th and 7th March 1557-8. [446] D'Ewes, 291; Hatsell, 93. The latter says, "I cannot but suspect, that there was some private history in this affair, some particular offence against the queen, with which we are unacquainted." But I believe the explanation I have given will be thought more to the purpose; and so far from having offended the queen, Hall seems to have had a patron in Lord Burleigh, to whom he wrote many letters, complaining of the Commons, which are extant in the Lansdowne collection. He seems to have been a man of eccentric and unpopular character, and had already incurred the displeasure of the Commons in the session of 1572, when he was ordered to be warned by the serjeant to appear at the bar "to answer for sundry lewd speeches used as well in the house as elsewhere." Another entry records him to have been "charged with seven several articles, but having humbly submitted himself to the house, and confessed his folly, to have been upon the question released with a good exhortation from the speaker." D'Ewes, 207, 212. [447] Hatsell, 80. [448] D'Ewes, 341. [449] D'Ewes, 366. This case, though of considerable importance, is overlooked by Hatsell, who speaks of that of Hall as the only one before the long parliament, wherein the Commons have punished the authors of libels derogatory to their privileges. P. 127. Though he speaks only of libels, certainly the punishment of words spoken is at least as strong an exercise of power. [450] Journals, 1 Mary, p. 27. [451] D'Ewes, 393, etc. [452] _Id._ 430. [453] _Id._ 539. [454] _Id._ 596. [455] D'Ewes, 486. Another trifling circumstance may be mentioned to show the rising spirit of the age. In the session of 1601, Sir Robert Cecil having proposed that the speaker should _attend_ the lord keeper about some matter, Sir Edward Hobby took up the word in strong language, as derogatory to their dignity; and the secretary, who knew, as later ministers have done, that the Commons are never so unmanageable as on such points of honour, made a proper apology. _Id._ 627. [456] Birch's _Memoirs_, i. 97, 120, 152, etc., ii. 129; Bacon's Works, vol. ii. p. 416, 435. [457] Raleigh's _Dedication of his Prerogative of Parliaments to James I._ contains terrible things. "The bonds of subjects to their kings should always be wrought out of iron, the bonds of kings unto subjects but with cobwebs."--"All binding of a king by law upon the advantage of his necessity, makes the breach itself lawful in a king; his charters and all other instruments being no other than the surviving witnesses of his unconstrained will." The object, however, of the book, is to persuade the king to call a parliament (about 1613), and we are not to suppose that Raleigh meant what he said. He was never very scrupulous about truth. In another of his tracts, entitled _The Prince; or, Thesaurus of State_, he holds, though not without flattery towards James, a more reasonable language. "In every just state some part of the government is or ought to be impartial to the people; as in a kingdom, a voice or suffrage in making laws: and sometimes also in levying of arms, if the charge be great and the prince be forced to borrow help of his subjects, the matter rightly may be propounded to a parliament, that the tax may seem to have proceeded from themselves." [458] _Le Contre Un_ of La Boetie, the friend of Montaigne, is, as the title intimates, a vehement philippic against monarchy. It is subjoined to some editions of the latter's essays. The _Franco-Gallia_ of Hottoman contains little more than extracts from Fredegarius, Aimoin, and other ancient writers, to prove the elective character and general freedom of the monarchy under the two first races. This made a considerable impression at the time, though the passages in question have been so often quoted since, that we are almost surprised to find the book so devoid of novelty. Hubert Languet's _Vindicæ contra Tyrannos_, published under the name of Junius Brutus, is a more argumentative discussion of the rights of governors and their subjects. [459] D'Ewes, p. 115. I have already adverted to Gardiner's resolute assertion of the law against the prince's single will, as a proof that, in spite of Hume's preposterous insinuations to the contrary, the English monarchy was known and acknowledged to be limited. Another testimony may be adduced from the words of a great protestant churchman. Archbishop Parker, writing to Cecil to justify himself for not allowing the queen's right to grant some dispensation in a case of marriage, says, "he would not dispute of the queen's absolute power, or prerogative royal, how far her highness might go in following the Roman authority; but he yet doubted, that if any dispensation should pass from her authority, to any subject, not avouchable by laws of her realm, made and established by herself and her three estates, whether that subject be in surety at all times afterwards: specially seeing there be parliament laws, precisely determining cases of dispensations." Strype's _Parker_, 177. Perhaps, however, there is no more decisive testimony to the established principles of limited monarchy in the age of Elizabeth, than a circumstance mentioned in Anderson's _Reports_, 154. The queen had granted to Mr. Richard Cavendish an office for issuing certain writs, and directed the judges to admit him to it, which they neglected (that is, did not think fit) to do. Cavendish hereupon obtained a letter from her majesty, expressing her surprise that he was not admitted according to her grant, and commanding them to sequester the profits of the office for his use, or that of any other to whom these might appear to be due, as soon as the controversy respecting the execution of the said office should be decided. It is plain that some other persons were in possession of these profits, or claimed a right therein. The judges conceived that they could not lawfully act according to the said letter and command, because through such a sequestration of the emoluments, those who claimed a right to issue the writs would be disseised of their freehold. The queen, informed that they did not obey the letter, sent another, under the sign manual, in more positive language, ending in these words: "We look that you and every of you should dutifully fulfil our commandment herein, and these our letters shall be your warrant."--21st April 1587. This letter was delivered to the justices in the presence of the chancellor and Lord Leicester, who were commissioned to hear their answer, telling them also, that the queen had granted the patent on account of her great desire to provide for Cavendish. The judges took a little time to consult what should be said; and, returning to the Lords, answered that they desired in all respects humbly to obey her majesty; but, as this case is, could not do so without perjury, which they well knew the queen would not require, and so went away. Their answer was reported to the queen, who ordered the chancellor, chief justice of the king's bench, and master of the rolls, to hear the judges' reasons; and the queen's council were ordered to attend, when the queen's serjeant began to show the queen's prerogative to grant the issuing of writs, and showed precedents. The judges protested in answer, that they had every wish to assist her majesty to all her rights, but said that this manner of proceeding was out of course of justice; and gave their reasons, that the right of issuing these writs and fees incident to it was in the prothonotaries and others, who claimed it by freehold; who ought to be made to answer, and not the judges, being more interested therein. This was certainly a little feeble, but they soon recovered themselves. They were then charged with having neglected to obey these letters of the queen; which they confessed, but said that this was no offence or contempt towards her majesty, because the command was against the law of the land; in which case, they said, no one is bound to obey such command. When farther pressed, they said the queen herself was sworn to keep the laws as well as they; and that they could not obey this command without going against the laws directly and plainly, against their oaths, and to the offence of God, her majesty, the country and commonwealth in which they were born and live: so that if the fear of God were gone from them, yet the examples of others, and the punishment of those who had formerly transgressed the laws, would remind them and keep them from such an offence. Then they cited the Spensers, and Thorp, a judge under Edward III., and precedents of Richard II.'s time, and of Empson, and the statutes from Magna Charta, which show what a crime it is for judges to infringe the laws of the land; and thus, since the queen and the judges were sworn to observe them, they said that they would not act as was commanded in these letters. All this was repeated to her majesty for her good allowance of the said reasons, and which her majesty, as I have heard, says the reporter, took well; but nothing farther was heard of the business.--Such was the law and the government, which Mr. Hume has compared to that of Turkey! It is almost certain, that neither James nor Charles would have made so discreet a sacrifice of their pride and arbitrary temper; and in this self-command lay the great superiority of Elizabeth's policy. [460] _Harborowe of True and Faithful Subjects_, 1559. Most of this passage is quoted by Dr. M'Crie, in his _Life of Knox_, vol. i. note BB, to whom I am indebted for pointing it out. [461] _Commonwealth of England_, b. ii. c. 3. [462] Bodin says the English ambassador, M. Dail (Mr. Dale), had assured him, not only that the king may assent to or refuse a bill as he pleases, but that il ne laisse pas d'en ordonner à son plaisir, et centre la volonté des estats, comme on a vu Henry VIII. avoir toujours usé de sa puissance souveraine. He admitted, however, that taxes could only be imposed in parliament. _De la République_, l. i. c. 8. [463] The misrepresentations of Hume as to the English constitution under Elizabeth, and the general administration of her reign, have been exposed since the present chapter was written, by Mr. Brodie, in his _History of the British Empire from the Accession of Charles I. to the Restoration_, vol. i. c. 3. In some respects, Mr. B. seems to have gone too far in an opposite system, and to represent the practical course of government as less arbitrary than I can admit it to have been. CHAPTER VI ON THE ENGLISH CONSTITUTION UNDER JAMES I _Quiet accession of James._--It might afford an illustration of the fallaciousness of political speculations, to contrast the hopes and inquietudes that agitated the minds of men concerning the inheritance of the Crown during Elizabeth's lifetime, while not less than fourteen titles were idly or mischievously reckoned up, with the perfect tranquillity that accompanied the accession of her successor.[464] The house of Suffolk, whose claim was legally indisputable, if we admit the testament of Henry VIII. to have been duly executed, appear, though no public enquiry had been made into that fact, to have lost ground in popular opinion, partly through an unequal marriage of Lord Beauchamp with a private gentleman's daughter, but still more from a natural disposition to favour the hereditary line rather than the capricious disposition of a sovereign long since dead, as soon as it became consistent with the preservation of the reformed faith. Leicester once hoped, it is said, to place his brother-in-law, the Earl of Huntingdon, descended from the Duke of Clarence, upon the throne; but this pretension had been entirely forgotten. The more intriguing and violent of the catholic party, after the death of Mary, entertaining little hope that the King of Scots would abandon the principles of his education, sought to gain support to a pretended title in the King of Spain, or his daughter the infanta, who afterwards married the Archduke Albert, governor of the Netherlands. Others, abhorring so odious a claim, looked to Arabella Stuart, daughter of the Earl of Lennox, younger brother of James's father, and equally descended from the stock of Henry VII., sustaining her manifest defect of primogeniture by her birth within the realm, according to the principle of law that excluded aliens from inheritance. But this principle was justly deemed inapplicable to the Crown. Clement VIII., who had no other view than to secure the re-establishment of the catholic faith in England, and had the judgment to perceive that the ascendency of Spain would neither be endured by the nation, nor permitted by the French king, favoured this claim of Arabella, who though apparently of the reformed religion, was rather suspected at home of wavering in her faith; and entertained a hope of marrying her to the Cardinal Farnese, brother of the Duke of Parma.[465] Considerations of public interest, however, unequivocally pleaded for the Scottish line; the extinction of long sanguinary feuds, and the consolidation of the British empire, Elizabeth herself, though by no means on terms of sincere friendship with James, and harassing him by intrigues with his subjects to the close of her life, seems to have always designed that he should inherit her crown. And the general expectation of what was to follow, as well from conviction of his right as from the impracticability of any effectual competition, had so thoroughly paved the way, that the council's proclamation of the King of Scots excited no more commotion than that of an heir apparent.[466] _Question of his title to the crown._--The popular voice in favour of James was undoubtedly raised in consequence of a natural opinion that he was the lawful heir to the throne. But this was only according to vulgar notions of right, which respect hereditary succession as something indefeasible. In point of fact, it is at least very doubtful whether James I. or any of his posterity were legitimate sovereigns, according to the sense which that word ought properly to bear. The house of Stuart no more came in by a clear title than the house of Brunswick; by such a title, I mean, as the constitution and established laws of this kingdom had recognised. No private man could have recovered an acre of land without proving a better right than they could make out to the Crown of England. What then had James to rest upon? What renders it absurd to call him and his children usurpers? He had that which the flatterers of his family most affected to disdain, the will of the people; not certainly expressed in regular suffrage or declared election, but unanimously and voluntarily ratifying that which in itself could surely give no right, the determination of the late queen's council to proclaim his accession to the throne. It is probable that what has been just said may appear rather paradoxical to those who have not considered this part of our history; yet it is capable of satisfactory proof. This proof consists of four propositions: 1. That a lawful king of England, with the advice and consent of parliament, may make statutes to limit the inheritance of the Crown as shall seem fit;--2. That a statute passed in the 35th year of King Henry VIII. enabled that prince to dispose of the succession by his last will signed with his own hand;--3. That Henry executed such a will, by which, in default of issue from his children, the Crown was entailed upon the descendants of his younger sister Mary, Duchess of Suffolk, before those of Margaret, Queen of Scots;--4. That such descendants of Mary were living at the decease of Elizabeth. Of these propositions, the two former can require no support; the first being one that it would be perilous to deny, and the second asserting a notorious fact. A question has, however, been raised with respect to the third proposition; for though the will of Henry, now in the chapter-house at Westminster, is certainly authentic, and is attested by many witnesses, it has been doubted whether the signature was made with his own hand, as required by the act of parliament. In the reign of Elizabeth, it was asserted by the Queen of Scots' ministers, that the king being at the last extremity, some one had put a stamp for him to the instrument. It is true, that he was in the latter part of his life accustomed to employ a stamp instead of making his signature. Many impressions of this are extant; but it is evident on the first inspection, not only that the presumed autographs in the will (for there are two) are not like these impressions, but that they are not the impressions of any stamp, the marks of the pen being very clearly discernible.[467] It is more difficult to pronounce that they may not be feigned; but such is not the opinion of some who are best acquainted with Henry's handwriting;[468] and what is still more to the purpose, there is no pretence for setting up such a possibility, when the story of the stamp, as to which the partisans of Mary pretended to adduce evidence, appears so clearly to be a fabrication. We have therefore every reasonable ground to maintain, that Henry did duly execute a will, postponing the Scots line to that of Suffolk. The fourth proposition is in itself undeniable. There were descendants of Mary, Duchess of Suffolk, by her two daughters, Frances, second Duchess of Suffolk, and Eleanor, Countess of Cumberland. A story had indeed been circulated that Charles Brandon, Duke of Suffolk, was already married to a lady of the name of Mortimer at the time of his union with the king's sister. But this circumstance seems to be sufficiently explained in the treatise of Hales.[469] It is somewhat more questionable, from which of his two daughters we are to derive the hereditary stock. This depends on the legitimacy of Lord Beauchamp, son of the Earl of Hertford by Catherine Grey. I have mentioned in another place the process before a commission appointed by Elizabeth, which ended in declaring that their marriage was not proved, and that their cohabitation had been illicit. The parties alleged themselves to have been married clandestinely in the Earl of Hertford's house, by a minister whom they had never before seen, and of whose name they were ignorant, in the presence only of a sister of the earl, then deceased. This entire absence of testimony, and the somewhat improbable nature of the story, at least in appearance, may still perhaps leave a shade of doubt as to the reality of the marriage. On the other hand, it was unquestionable that their object must have been a legitimate union; and such a hasty and furtive ceremony as they asserted to have taken place, while it would, if sufficiently proved, be completely valid, was necessary to protect them from the queen's indignation. They were examined separately upon oath to answer a series of the closest interrogatories, which they did with little contradiction, and a perfect agreement in the main; nor was any evidence worth mentioning adduced on the other side; so that, unless the rules of the ecclesiastical law are scandalously repugnant to common justice, their oaths entitled them to credit on the merits of the case.[470] The Earl of Hertford, soon after the tranquil accession of James, having long abandoned all ambitious hopes, and seeking only to establish his children's legitimacy and the honour of one who had been the victim of their unhappy loves, petitioned the king for a review of the proceedings, alleging himself to have vainly sought this at the hands of Elizabeth. It seems probable, though I have not met with any more distinct proof of it than a story in Dugdale, that he had been successful in finding the person who solemnised the marriage.[471] A commission of delegates was accordingly appointed to investigate the allegations of the earl's petition. But the jealousy that had so long oppressed this unfortunate family was not yet at rest. Questions seem to have been raised as to the lapse of time and other technical difficulties, which served as a pretext for coming to no determination on the merits.[472] Hertford, or rather his son, not long after, endeavoured indirectly to bring forward the main question by means of a suit for some lands against Lord Monteagle. This is said to have been heard in the court of wards, where a jury was impanelled to try the fact. But the law officers of the Crown interposed to prevent a verdict, which, though it could not have been legally conclusive upon the marriage, would certainly have given a sanction to it in public opinion.[473] The house of Seymour was now compelled to seek a renewal of their honours by another channel. Lord Beauchamp, as he had uniformly been called, took a grant of the barony of Beauchamp, and another of the earldom of Hertford, to take effect upon the death of the earl, who is not denominated his father in the patent.[474] But after the return of Charles II., in the patent restoring this Lord Beauchamp's son to the dukedom of Somerset, he is recited to be heir male of the body of the first duke by his wife Anne, which establishes (if the recital of a private act of parliament can be said to establish anything) the validity of the disputed marriage.[475] The descent from Eleanor, the younger daughter of Mary Brandon, who married the Earl of Cumberland, is subject to no difficulties. She left an only daughter, married to the Earl of Derby, from whom the claim devolved again upon females, and seems to have attracted less notice during the reign of Elizabeth than some others much inferior in plausibility. If any should be of opinion that no marriage was regularly contracted between the Earl of Hertford and Lady Catherine Grey, so as to make their children capable of inheritance, the title to the Crown, resulting from the statute of 35 H. 8 and the testament of that prince, will have descended, at the death of Elizabeth, on the issue of the Countess of Cumberland, the youngest daughter of the Duchess of Suffolk, Lady Frances Keyes, having died without issue.[476] In neither case could the house of Stuart have a lawful claim. But I may, perhaps, have dwelled too long on a subject which, though curious and not very generally understood, can be of no sort of importance, except as it serves to cast ridicule upon those notions of legitimate sovereignty and absolute right, which it was once attempted to set up as paramount even to the great interests of a commonwealth. There is much reason to believe that the consciousness of this defect in his parliamentary title put James on magnifying, still more than from his natural temper he was prone to do, the inherent rights of primogenitary succession, as something indefeasible by the legislature; a doctrine which, however it might suit the schools of divinity, was in diametrical opposition to our statutes.[477] Through the servile spirit of those times, however, it made a rapid progress; and, interwoven by cunning and bigotry with religion, became a distinguishing tenet of the party who encouraged the Stuarts to subvert the liberties of this kingdom. In James's proclamation on ascending the throne, he sets forth his hereditary right in pompous and perhaps unconstitutional phrases. It was the first measure of parliament to pass an act of recognition, acknowledging that, immediately on the decease of Elizabeth, "the imperial crown of the realm of England did by inherent birthright, and lawful and undoubted succession, descend and come to his most excellent majesty, as being lineally, justly, and lawfully, next and sole heir of the blood royal of this realm."[478] The will of Henry VIII. it was tacitly agreed by all parties to consign to oblivion: and this most wisely, not on the principles which seem rather too much insinuated in this act of recognition, but on such substantial motives of public expediency as it would have shown an equal want of patriotism and of good sense for the descendants of the house of Suffolk to have withstood. James left a kingdom where his authority was incessantly thwarted and sometimes openly assailed, for one wherein the royal prerogative had for more than a century been strained to a very high pitch, and where there had not occurred for above thirty years the least appearance of rebellion and hardly of tumult. Such a posture of the English commonwealth, as well as the general satisfaction testified at his accession, seemed favourable circumstances to one who entertained, with less disguise if not with more earnestness than most other sovereigns, the desire of reigning with as little impediment as possible to his own will. Yet some considerations might have induced a prince who really possessed the king-craft wherein James prided himself, to take his measures with caution. The late queen's popularity had remarkably abated during her last years.[479] It is a very common delusion of royal personages to triumph in the people's dislike of those into whose place they expect shortly to come, and to count upon the most transitory of possessions, a favour built on hopes that they cannot realise and discontents that they will not assuage. If Elizabeth lost a great deal of that affection her subjects had entertained for her, this may be ascribed, not so much to Essex's death, though that no doubt had its share, as to weightier taxation, to some oppressions of her government, and above all to her inflexible tenaciousness in every point of ecclesiastical discipline. It was the part of a prudent successor to preserve an undeviating economy, to remove without repugnance or delay the irritations of monopolies and purveyance, and to remedy those alleged abuses in the church, against which the greater and stronger part of the nation had so long and so loudly raised its voice. _Early unpopularity of the king._--The new king's character, notwithstanding the vicinity of Scotland, seems to have been little understood by the English at his accession. But he was not long in undeceiving them, if it be true that his popularity had vanished away before his arrival in London.[480] The kingdom was full of acute wits and skilful politicians, quick enough to have seen through a less unguarded character than that of James. It was soon manifest that he was unable to wield the sceptre of the great princess whom he ridiculously affected to despise,[481] so as to keep under that rising spirit, which might perhaps have grown too strong even for her control. He committed an important error in throwing away the best opportunity that had offered itself for healing the wounds of the church of England. In his way to London, the malcontent clergy presented to him what was commonly called the Millenary Petition, as if signed by 1000 ministers, though the real number was not so great.[482] This petition contained no demand inconsistent with the established hierarchy, nor, as far as I am aware, which might not have been granted without inconvenience. James, however, who had not unnaturally taken an extreme disgust at the presbyterian clergy of his native kingdom, by whom his life had been perpetually harassed, showed no disposition to treat these petitioners with favour.[483] The bishops had promised him an obsequiousness to which he had been little accustomed, and a zeal to enhance his prerogative which they afterwards too well displayed. His measures towards the nonconformist party had evidently been resolved upon before he summoned a few of their divines to the famous conference at Hampton Court. In the accounts that we read of this meeting, we are alternately struck with wonder at the indecent and partial behaviour of the king, and at the abject baseness of the bishops, mixed, according to the custom of servile natures, with insolence towards their opponents.[484] It was easy for a monarch and eighteen churchmen to claim the victory, be the merits of their dispute what they might, over four abashed and intimidated adversaries.[485] A very few alterations were made in the church service after this conference, but not of such moment as to reconcile probably a single minister to the established discipline.[486] The king soon afterwards put forth a proclamation, requiring all ecclesiastical and civil officers to do their duty by enforcing conformity, and admonishing all men not to expect nor attempt any further alteration in the public service; for "he would neither let any presume that his own judgment, having determined in a matter of this weight, should be swayed to alteration by the frivolous suggestions of any light spirit, nor was he ignorant of the inconvenience of admitting innovation in things once settled by mature deliberation."[487] And he had already strictly enjoined the bishops to proceed against all their clergy who did not observe the prescribed order;[488] a command which Bancroft, who about this time followed Whitgift in the primacy, did not wait to have repeated. But the most enormous outrage on the civil rights of these men was the commitment to prison of ten among those who had presented the Millenary Petition; the judges having declared in the star-chamber, that it was an offence finable at discretion, and very near to treason and felony, as it tended to sedition and rebellion.[489] By such beginnings did the house of Stuart indicate the course it would steer. An entire year elapsed, chiefly on account of the unhealthiness of the season in London, before James summoned his first parliament. It might perhaps have been more politic to have chosen some other city; for the length of this interval gave time to form a disadvantageous estimate of his administration and to alienate beyond recovery the puritanical party. Libels were already in circulation, reflecting with a sharpness never before known on the king's personal behaviour, which presented an extraordinary contrast to that of Elizabeth.[490] The nation, it is easy to perceive, cheated itself into a persuasion, that it had borne that princess more affection than it had really felt, especially in her latter years; the sorrow of subjects for deceased monarchs being often rather inspired by a sense of evil than a recollection of good. James however little heeded the popular voice, satisfied with the fulsome and preposterous adulation of his court, and intent on promulgating certain maxims concerning the dignity and power of princes, which he had already announced in his discourse on the "True Law of Free Monarchies," printed some years before in Scotland. In this treatise, after laying it down that monarchy is the true pattern of divinity, and proving the duty of passive obedience, rather singularly, from that passage in the book of Samuel where the prophet so forcibly paints the miseries of absolute power, he denies that the kings of Scotland owe their crown to any primary contract, Fergus, their progenitor, having conquered the country with his Irish; and advances more alarming tenets, as that the king makes daily statutes and ordinances enjoining such pains thereto as he thinks meet, without any advice of parliament or estates; that general laws made publicly in parliament may by the king's authority be mitigated or suspended upon causes only known to him; and that, "although a good king will frame all his actions to be according to the law, yet he is not bound thereto, but of his own will and for example-giving to his subjects."[491] These doctrines, if not absolutely novel, seemed peculiarly indecent as well as dangerous, from the mouth of a sovereign. Yet they proceeded far more from James's self-conceit and pique against the republican spirit of presbyterianism than from his love of power, which (in its exercise I mean, as distinguished from its possession) he did not feel in so eminent a degree as either his predecessor or his son. In the proclamation for calling together his first parliament, the king, after dilating, as was his favourite practice, on a series of rather common truths in very good language, charges all persons interested in the choice of knights for the shire to select them out of the principal knights or gentlemen within the county; and for the burgesses, that choice be made of men of sufficiency and discretion, without desire to please parents and friends, that often speak for their children or kindred; avoiding persons noted in religion for their superstitious blindness one way, or for their turbulent humour other ways. We do command, he says, that no bankrupts or outlaws be chosen, but men of known good behaviour and sufficient livelihood. The sheriffs are charged not to direct a writ to any ancient town being so ruined that there are not residents sufficient to make such choice, and of whom such lawful election may be made. All returns are to be filed in chancery, and if any be found contrary to this proclamation, the same to be rejected as unlawful and insufficient, and the place to be fined for making it; and any one elected contrary to the purport, effect, and true meaning of this proclamation, to be fined and imprisoned.[492] _Question of Fortescue and Goodwin's election._--Such an assumption of control over parliamentary elections was a glaring infringement of those privileges which the House of Commons had been steadily and successfully asserting in the late reign. An opportunity very soon occurred of contesting this important point. At the election for the county of Buckingham, Sir Francis Goodwin had been chosen in preference to Sir John Fortescue, a privy counsellor, and the writ returned into chancery. Goodwin having been some years before outlawed, the return was sent back to the sheriff, as contrary to the late proclamation; and, on a second election, Sir John Fortescue was chosen. This matter being brought under the consideration of the House of Commons, a very few days after the opening of the session, gave rise to their first struggle with the new king. It was resolved, after hearing the whole case, and arguments by members on both sides, that Goodwin was lawfully elected and returned, and ought to be received. The first notice taken of this was by the Lords, who requested that this might be discussed in a conference between the two houses, before any other matter should be proceeded in. The Commons returned for answer, that they conceived it not according to the honour of the house to give account of any of their proceedings. The Lords replied, that having acquainted his majesty with the matter, he desired there might be a conference thereon between the two houses. Upon this message, the Commons came to a resolution that the speaker with a numerous deputation of members should attend his majesty, and report the reasons of their proceedings in Goodwin's case. In this conference with the king, as related by the speaker, it appears that he had shown some degree of chagrin, and insisted that the house ought not to meddle with returns, which could only be corrected by the court of chancery; and that since they derived all matters of privilege from him and his grant, he expected they should not be turned against him. He ended by directing the house to confer with the judges. After a debate which seems, from the minutes in the journals, to have been rather warm, it was unanimously agreed not to have a conference with the judges; but the reasons of the house's proceeding were laid before the king in a written statement or memorial, answering the several objections that his majesty had alleged. This they sent to the Lords, requesting them to deliver it to the king, and to be mediators in behalf of the house for his majesty's satisfaction; a message in rather a lower tone than they had previously taken. The king sending for the speaker privately, told him that he was now distracted in judgment as to the merits of the case; and for his further satisfaction, desired and commanded, as an absolute king, that there should be a conference between the house and the judges. Upon this unexpected message, says the journal, there grew some amazement and silence. But at last one stood up and said: "The prince's command is like a thunderbolt; his command upon our allegiance like the roaring of a lion. To his command there is no contradiction; but how or in what manner we should now proceed to perform obedience, that will be the question."[493] It was resolved to confer with the judges in presence of the king and council. In this second conference, the king, after some favourable expressions towards the house, and conceding that it was a court of record, and judge of returns, though not exclusively of the chancery, suggested that both Goodwin and Fortescue should be set aside, by issuing a new writ. This compromise was joyfully accepted by the greater part of the Commons, after the dispute had lasted nearly three weeks.[494] They have been considered as victorious, upon the whole, in this contest, though they apparently fell short in the result of what they had obtained some years before. But no attempt was ever afterwards made to dispute their exclusive jurisdiction.[495] _Shirley's case of privilege._--The Commons were engaged during this session in the defence of another privilege, to which they annexed perhaps a disproportionate importance. Sir Thomas Shirley, a member, having been taken in execution on a private debt before their meeting, and the warden of the Fleet prison refusing to deliver him up, they were at a loss how to obtain his release. Several methods were projected; among which, that of sending a party of members with the serjeant and his mace, to force open the prison, was carried on a division; but the speaker hinting that such a vigorous measure would expose them individually to prosecution as trespassers, it was prudently abandoned. The warden, though committed by the house to a dungeon in the Tower, continued obstinate, conceiving that by releasing his prisoner he should become answerable for the debt. They were evidently reluctant to solicit the king's interference; but aware at length that their own authority was insufficient, "the vice-chamberlain, according to a memorandum in the journals, was privately instructed to go to the king, and humbly desire that he would be pleased to command the warden, on his allegiance, to deliver up Sir Thomas; not as petitioned for by the house, but as if himself thought it fit, out of his own gracious judgment." By this stratagem, if we may so term it, they saved the point of honour, and recovered their member.[496] The warden's apprehensions, however, of exposing himself to an action for the escape gave rise to a statute, which empowers the creditor to sue out a new execution against any one who shall be delivered by virtue of his privilege of parliament, after that shall have expired, and discharges from liability those out of whose custody such persons shall be delivered. This is the first legislative recognition of privilege.[497] The most important part of the whole is a proviso subjoined to the act, "That nothing therein contained shall extend to the diminishing of any punishment to be hereafter, by censure in parliament, inflicted upon any person who hereafter shall make or procure to be made any such arrest as is aforesaid." The right of commitment, in such cases at least, by a vote of the House of Commons, is here unequivocally maintained. _Complaints of grievances._--It is not necessary to repeat the complaints of ecclesiastical abuses preferred by this House of Commons, as by those that had gone before them. James, by siding openly with the bishops, had given alarm to the reforming party. It was anticipated that he would go farther than his predecessor, whose uncertain humour, as well as the inclinations of some of her advisers, had materially counterbalanced the dislike she entertained of the innovators. A code of new canons had recently been established in convocation with the king's assent, obligatory perhaps upon the clergy, but tending to set up an unwarranted authority over the whole nation; imposing oaths and exacting securities in certain cases from the laity, and aiming at the exclusion of nonconformists from all civil rights.[498] Against these canons, as well as various other grievances, the Commons remonstrated in a conference with the upper house, but with little immediate effect.[499] They made a more remarkable effort in attacking some public mischiefs of a temporal nature, which, though long the theme of general murmurs, were closely interwoven with the ancient and undisputed prerogatives of the Crown. Complaints were uttered, and innovations projected by the Commons of 1604, which Elizabeth would have met with an angry message, and perhaps visited with punishment on the proposers. James however was not entirely averse to some of the projected alterations, from which he hoped to derive a pecuniary advantage. The two principal grievances were, purveyance and the incidents of military tenure. The former had been restrained by not less than thirty-six statutes, as the Commons assert in a petition to the king; in spite of which the impressing of carts and carriages, and the exaction of victuals for the king's use, at prices far below the true value, and in quantity beyond what was necessary, continued to prevail under authority of commissions from the board of green cloth, and was enforced, in case of demur or resistance, by imprisonment under their warrant. The purveyors, indeed, are described as living at free quarters upon the country, felling woods without the owners' consent, and commanding labour with little or no recompense.[500] Purveyance was a very ancient topic of remonstrance; but both the inadequate revenues of the Crown, and a supposed dignity attached to this royal right of spoil, had prevented its abolition from being attempted. But the Commons seemed still more to trench on the pride of our feudal monarchy, when they proposed to take away guardianship in chivalry; that lucrative tyranny, bequeathed by Norman conquerors, the custody of every military tenant's estate until he should arrive at twenty-one, without accounting for the profits. This, among other grievances, was referred to a committee, in which Bacon took an active share. They obtained a conference on this subject with the Lords, who refused to agree to a bill for taking guardianship in chivalry away, but offered to join in a petition for that purpose to the king, since it could not be called a wrong, having been patiently endured by their ancestors as well as themselves, and being warranted by the law of the land. In the end the Lords advised to drop the matter for the present, as somewhat unseasonable in the king's first parliament.[501] In the midst of these testimonies of dissatisfaction with the civil and ecclesiastical administration, the House of Commons had not felt much willingness to greet the new sovereign with a subsidy. No demand had been made upon them, far less any proof given of the king's exigencies; and they doubtless knew by experience, that an obstinate determination not to yield to any of their wishes would hardly be shaken by a liberal grant of money. They had even passed the usual bill granting tonnage and poundage for life, with certain reservations that gave the court offence, and which apparently they afterwards omitted. But there was so little disposition to do anything further, that the king sent a message to express his desire that the Commons would not enter upon the business of a subsidy, and assuring them that he would not take unkindly their omission. By this artifice, which was rather transparent, he avoided the not improbable mortification of seeing the proposal rejected.[502] _Commons' vindication of themselves._--The king's discontent at the proceedings of this session, which he seems to have rather strongly expressed in some speech to the Commons that has not been recorded,[503] gave rise to a very remarkable vindication, prepared by a committee at the house's command, and entitled "A Form of Apology and Satisfaction to be delivered to his Majesty," though such may not be deemed the most appropriate title. It contains a full and pertinent justification of all those proceedings at which James had taken umbrage, and asserts, with respectful boldness and in explicit language, the constitutional rights and liberties of parliament. If the English monarchy had been reckoned as absolute under the Plantagenets and Tudors as Hume has endeavoured to make it appear, the Commons of 1604 must have made a surprising advance in their notions of freedom since the king's accession. Adverting to what they call the misinformation openly delivered to his majesty in three things; namely, that their privileges were not of right, but of grace only, renewed every parliament on petition; that they are no court of record, nor yet a court that can command view of records; that the examination of the returns of writs for knights and burgesses is without their compass, and belonging to the chancery: assertions, they say, "tending directly and apparently to the utter overthrow of the very fundamental privileges of our house, and therein of the rights and liberties of the whole Commons of your realm of England, which they and their ancestors, from time immemorial, have undoubtedly enjoyed under your majesty's most noble progenitors;" and against which they expressly protest, as derogatory in the highest degree to the true dignity and authority of parliament, desiring "that such their protestation might be recorded to all posterity;" they maintain, on the contrary, "1. That their privileges and liberties are their right and inheritance, no less than their very lands and goods; 2. That they cannot be withheld from them, denied or impaired, but with apparent wrong to the whole state of the realm; 3. That their making request, at the beginning of a parliament, to enjoy their privilege, is only an act of manners, and does not weaken their right; 4. That their house is a court of record, and has been ever so esteemed; 5. That there is not the highest standing court in this land that ought to enter into competition, either for dignity or authority, with this high court of parliament, which, with his majesty's royal assent, gives law to other courts, but from other courts receives neither laws nor orders; 6. That the House of Commons is the sole proper judge of return of all such writs, and the election of all such members as belong to it, without which the freedom of election were not entire." They aver that in this session the privileges of the house have been more universally and dangerously impugned than ever, as they suppose, since the beginnings of parliaments. That in regard to the late queen's sex and age, and much more upon care to avoid all trouble, which by wicked practice might have been drawn to impeach the quiet of his majesty's right in the succession, those actions were then passed over which they hoped in succeeding times to redress and rectify; whereas, on the contrary, in this parliament, not privileges, but the whole freedom of the parliament and realm had been hewed from them. "What cause," they proceed, "we, your poor Commons, have to watch over our privileges is manifest in itself to all men. The prerogatives of princes may easily and do daily grow. The privileges of the subject are for the most part at an everlasting stand. They may be by good providence and care preserved; but being once lost, are not recovered but with much disquiet." They then enter in detail on the various matters that had arisen during the session--the business of Goodwin's election, of Shirley's arrest, and some smaller matters of privilege to which my limits have not permitted me to allude. "We thought not," speaking of the first, "that the judge's opinion, which yet in due place we greatly reverence, being delivered what the common law was, which extends only to inferior and standing courts, ought to bring any prejudice to this high court of parliament, whose power being above the law is not founded on the common law, but have their rights and privileges peculiar to themselves." They vindicate their endeavours to obtain redress of religious and public grievances: "Your majesty would be misinformed," they tell him, "if any man should deliver that the kings of England have any absolute power in themselves, either to alter religion, which God defend should be in the power of any mortal man whatsoever, or to make any laws concerning the same, otherwise than as in temporal causes, by consent of parliament. We have and shall at all times by our oaths acknowledge, that your majesty is sovereign lord and supreme governor in both."[504] Such was the voice of the English Commons in 1604, at the commencement of that great conflict for their liberties, which is measured by the line of the house of Stuart. But it is not certain that this apology was ever delivered to the king, though he seems to allude to it in a letter written to one of his ministers about the same time.[505] _Session_, 1605.--The next session, which is remarkable on account of the conspiracy of some desperate men to blow up both Houses of Parliament with gunpowder on the day of their meeting, did not produce much worthy of our notice. A bill to regulate, or probably to suppress, purveyance was thrown out by the Lords. The Commons sent up another bill to the same effect, which the upper house rejected without discussion, by a rule then perhaps first established, that the same bill could not be proposed twice in one session.[506] They voted a liberal subsidy, which the king, who had reigned three years without one, had just cause to require. For though he had concluded a peace with Spain soon after his accession, yet the late queen had left a debt of £400,000, and other charges had fallen on the Crown. But the bill for this subsidy lay a good while in the House of Commons, who came to a vote that it should not pass till their list of grievances was ready to be presented. No notice was taken of these till the next session beginning in November 1606, when the king returned an answer to each of the sixteen articles in which matters of grievance were alleged. Of these the greater part refer to certain grants made to particular persons in the nature of monopolies; the king either defending these in his answer, or remitting the parties to the courts of law to try their legality. _Union with Scotland debated._--The principal business of this third session, as it had been of the last, was James's favourite scheme of a perfect union between England and Scotland. It may be collected, though this was never explicitly brought forward, that his views extended to a legislative incorporation.[507] But in all the speeches on this subject, and especially his own, there is a want of distinctness as to the object proposed. He dwells continually upon the advantage of unity of laws, yet extols those of England as the best, which the Scots, as was evident, had no inclination to adopt. Wherefore then was delay to be imputed to our English parliament, if it waited for that of the sister kingdom? And what steps were recommended towards this measure, that the Commons can be said to have declined, except only the naturalisation of the ante-nati, or Scots born before the king's accession to our throne, which could only have a temporary effect?[508] Yet Hume, ever prone to eulogise this monarch at the expense of his people, while he bestows merited praise on his speech in favour of the union, which is upon the whole a well-written and judicious performance, charges the parliament with prejudice, reluctance, and obstinacy. The code, as it may be called, of international hostility, those numerous statutes treating the northern inhabitants of this island as foreigners and enemies, were entirely abrogated. And if the Commons, while both the theory of our own constitution was so unsettled and its practice so full of abuse, did not precipitately give in to schemes that might create still further difficulty in all questions between the Crown and themselves, schemes, too, which there was no imperious motive for carrying into effect at that juncture, we may justly consider it as an additional proof of their wisdom and public spirit. Their slow progress however in this favourite measure, which, though they could not refuse to entertain it, they endeavoured to defeat by interposing delays and impediments, gave much offence to the king, which he expressed in a speech to the two houses, with the haughtiness, but not the dignity, of Elizabeth. He threatened them to live alternately in the two kingdoms, or to keep his court at York; and alluded, with peculiar acrimony, to certain speeches made in the house, wherein probably his own fame had not been spared.[509] "I looked," he says, "for no such fruits at your hands, such personal discourses and speeches, which of all other, I looked you should avoid, as not beseeming the gravity of your assembly. I am your king; I am placed to govern you, and shall answer for your errors; I am a man of flesh and blood, and have my passions and affections as other men; I pray you, do not too far move me to do that which my power may tempt me unto."[510] _Continual bickerings between the Crown and Commons._--It is most probable, as experience had shown, that such a demonstration of displeasure from Elizabeth would have ensured the repentant submission of the Commons. But within a few years of the most unbroken tranquillity, there had been one of those changes of popular feeling which a government is seldom observant enough to watch. Two springs had kept in play the machine of her administration, affection and fear; attachment arising from the sense of dangers endured, and glory achieved for her people, tempered, though not subdued, by the dread of her stern courage and vindictive rigour. For James not a particle of loyal affection lived in the hearts of the nation, while his easy and pusillanimous, though choleric disposition, had gradually diminished those sentiments of apprehension which royal frowns used to excite. The Commons, after some angry speeches, resolved to make known to the king through the speaker their desire, that he would listen to no private reports, but take his information of the house's meaning from themselves; that he would give leave to such persons as he had blamed for their speeches to clear themselves in his hearing; and that he would by some gracious message make known his intention that they should deliver their opinions with full liberty, and without fear. The speaker next day communicated a slight but civil answer he had received from the king, importing his wish to preserve their privileges, especially that of liberty of speech.[511] This, however, did not prevent his sending a message a few days afterwards, commenting on their debates, and on some clauses they had introduced into the bill for the abolition of all hostile laws.[512] And a petition having been prepared by a committee under the house's direction for better execution of the laws against recusants, the speaker, on its being moved that the petition be read, said that his majesty had taken notice of the petition as a thing belonging to himself, concerning which it was needless to press him. This interference provoked some members to resent it, as an infringement of their liberties. The speaker replied that there were many precedents in the late queen's time, where she had restrained the house from meddling in politics of divers kinds. This, as a matter of fact, was too notorious to be denied. A motion was made for a committee "to search for precedents of ancient as well as later times that do concern any messages from the sovereign magistrate, king or queen of this realm, touching petitions offered to the House of Commons." The king now interposed by a second message, that, though the petition were such as the like had not been read in the house, and contained matter whereof the house could not properly take knowledge, yet if they thought good to have it read, he was not against the reading. And the Commons were so well satisfied with this concession, that no further proceedings were had; and the petition, says the journal, was at length, with general liking, agreed to sleep. It contained some strong remonstrances against ecclesiastical abuses, and in favour of the deprived and silenced puritans, but such as the house had often before in various modes brought forward.[513] The ministry betrayed, in a still more pointed manner, their jealousy of any interference on the part of the Commons with the conduct of public affairs in a business of a different nature. The pacification concluded with Spain in 1604, very much against the general wish,[514] had neither removed all grounds of dispute between the governments, nor allayed the dislike of the nations. Spain advanced in that age the most preposterous claims to an exclusive navigation beyond the tropic, and to the sole possession of the American continent; while the English merchants, mindful of the lucrative adventures of the queen's reign, could not be restrained from trespassing on the rich harvest of the Indies by contraband and sometimes piratical voyages. These conflicting interests led of course to mutual complaints of maritime tyranny and fraud; neither likely to be ill-founded, where the one party was as much distinguished for the despotic exercise of vast power, as the other by boldness and cupidity. It was the prevailing bias of the king's temper to keep on friendly terms with Spain, or rather to court her with undisguised and impolitic partiality.[515] But this so much thwarted the prejudices of his subjects that no part perhaps of his administration had such a disadvantageous effect on his popularity. The merchants presented to the Commons, in this session of 1607, a petition upon the grievances they sustained from Spain, entering into such a detail of alleged cruelties as was likely to exasperate that assembly. Nothing however was done for a considerable time, when after receiving the report of a committee on the subject, the house prayed a conference with the Lords. They, who acted in this and the preceding session as the mere agents of government, intimated in their reply, that they thought it an unusual matter for the Commons to enter upon, and took time to consider about a conference. After some delay this was granted, and Sir Francis Bacon reported its result to the lower house. The Earl of Salisbury managed the conference on the part of the Lords. The tenor of his speech, as reported by Bacon, is very remarkable. After discussing the merits of the petition, and considerably extenuating the wrongs imputed to Spain, he adverted to the circumstance of its being presented to the Commons. The Crown of England was invested, he said, with an absolute power of peace and war; and inferred, from a series of precedents which he vouched, that petitions made in parliament, intermeddling with such matters, had gained little success; that great inconveniences must follow from the public debate of a king's designs, which, if they take wind, must be frustrated; and that if parliaments have ever been made acquainted with matter of peace or war in a general way, it was either when the king and council conceived that it was material to have some declaration of the zeal and affection of the people, or else when they needed money for the charge of a war, in which case they should be sure enough to hear of it; that the Lords would make a good construction of the Commons' desire, that it sprang from a forwardness to assist his majesty's future resolutions, rather than a determination to do that wrong to his supreme power which haply might appear to those who were prone to draw evil inferences from their proceedings. The Earl of Northampton, who also bore a part in this conference, gave as one reason among others, why the Lords could not concur in forwarding the petition to the Crown, that the composition of the House of Commons was in its first foundation intended merely to be of those that have their residence and vocation in the places for which they serve, and therefore to have a private and local wisdom according to that compass, and so not fit to examine or determine secrets of state which depend upon such variety of circumstances; and although he acknowledged that there were divers gentlemen in the house of good capacity and insight into matters of state, yet that was the accident of the person, and not the intention of the place; and things were to be taken in the institution, and not in the practice. The Commons seemed to have acquiesced in this rather contemptuous treatment. Several precedents indeed might have been opposed to those of the Earl of Salisbury, wherein the Commons, especially under Richard II. and Henry VI., had assumed a right of advising on matters of peace and war. But the more recent usage of the constitution did not warrant such an interference. It was however rather a bold assertion, that they were not the proper channel through which public grievances, or those of so large a portion of the community as the merchants, ought to be represented to the throne.[516] _Impositions on merchandise without consent of parliament._--During the interval of two years and a half that elapsed before the commencement of the next session, a decision had occurred in the court of exchequer, which threatened the entire overthrow of our constitution. It had always been deemed the indispensable characteristic of a limited monarchy, however irregular and inconsistent might be the exercise of some prerogatives, that no money could be raised from the subject without the consent of the estates. This essential principle was settled in England, after much contention, by the statute entitled Confirmatio Chartarum, in the 25th year of Edward I. More comprehensive and specific in its expression than the Great Charter of John, it abolishes all "aids, tasks, and prises, unless by the common assent of the realm, and for the common profit thereof, saving the ancient aids and prises due and accustomed;" the king explicitly renouncing the custom he had lately set on wool. Thus the letter of the statute and the history of the times conspire to prove, that impositions on merchandise at the ports, to which alone the word prises was applicable, could no more be levied by the royal prerogative after its enactment, than internal taxes upon landed or movable property, known in that age by the appellations of aids and tallages. But as the former could be assessed with great ease, and with no risk of immediate resistance, and especially as certain ancient customs were preserved by the statute,[517] so that a train of fiscal officers, and a scheme of regulations and restraints upon the export and import of goods became necessary, it was long before the sovereigns of this kingdom could be induced constantly to respect this part of the law. Hence several remonstrances from the Commons under Edward III. against the maletolts or unjust exactions upon wool, by which, if they did not obtain more than a promise of effectual redress, they kept up their claim, and perpetuated the recognition of its justice, for the sake of posterity. They became powerful enough to enforce it under Richard II., in whose time there is little clear evidence of illegal impositions; and from the accession of the house of Lancaster it is undeniable that they ceased altogether. The grant of tonnage and poundage for the king's life, which from the time of Henry V. was made in the first parliament of every reign, might perhaps be considered as a tacit compensation to the Crown for its abandonment of these irregular extortions. Henry VII., the most rapacious, and Henry VIII., the most despotic, of English monarchs, did not presume to violate this acknowledged right. The first who had again recourse to this means of enhancing the revenue was Mary, who, in the year 1557, set a duty upon cloths exported beyond seas, and afterwards another on the importation of French wines. The former of those was probably defended by arguing, that there was already a duty on wool; and if cloth, which was wool manufactured, could pass free, there would be a fraud on the revenue. The merchants however did not acquiesce in this arbitrary imposition, and as soon as Elizabeth's accession gave hopes of a restoration of English government, they petitioned to be released from this burthen. The question appears, by a memorandum in Dyer's Reports, to have been extra-judicially referred to the judges, unless it were rather as assistants to the privy council that their opinion was demanded. This entry concludes abruptly, without any determination of the judges.[518] But we may presume, that if any such had been given in favour of the Crown, it would have been made public. And that the majority of the bench would not have favoured this claim of the Crown, we may strongly presume from their doctrine in a case of the same description, wherein they held the assessment of treble custom on aliens for violation of letters patent to be absolutely against the law.[519] The administration, however, would not release this duty, which continued to be paid under Elizabeth. She also imposed one upon sweet wines. We read of no complaint in parliament against this novel taxation; but it is alluded to by Bacon in one of his tracts during the queen's reign, as a grievance alleged by her enemies. He defends it, as laid only on a foreign merchandise, and a delicacy which might be forborne.[520] But considering Elizabeth's unwillingness to require subsidies from the common, and the rapid increase of foreign traffic during her reign, it might be asked why she did not extend these duties to other commodities, and secure to herself no trifling annual revenue. What answer can be given, except that, aware how little any unparliamentary levying of money could be supported by law or usage, her ministers shunned to excite attention to these innovations which wanted hitherto the stamp of time to give them prescriptive validity?[521] James had imposed a duty of five shillings per hundredweight on currants, over and above that of two shillings and sixpence, which was granted by the statute of tonnage and poundage.[522] Bates, a Turkey merchant, having refused payment, an information was exhibited against him in the exchequer. Judgment was soon given for the Crown. The courts of justice, it is hardly necessary to say, did not consist of men conscientiously impartial between the king and the subject; some corrupt with hope of promotion, many more fearful of removal, or awe-struck by the frowns of power. The speeches of Chief Baron Fleming, and of Baron Clark, the only two that are preserved in Lane's Reports, contain propositions still worse than their decision, and wholly subversive of all liberty. "The king's power," it was said, "is double--ordinary and absolute; and these have several laws and ends. That of the ordinary is for the profit of particular subjects, exercised in ordinary courts, and called common law, which cannot be changed in substance without parliament. The king's absolute power is applied to no particular person's benefit, but to the general safety; and this is not directed by the rules of common law, but more properly termed policy and government, varying according to his wisdom for the common good; and all things done within those rules are lawful. The matter in question is matter of state, to be ruled according to policy by the king's extraordinary power. All customs (duties so called) are the effects of foreign commerce; but all affairs of commerce and all treaties with foreign nations belong to the king's absolute power; he therefore who has power over the cause, must have it also over the effect. The seaports are the king's gates, which he may open and shut to whom he pleases." The ancient customs on wine and wool are asserted to have originated in the king's absolute power, and not in a grant of parliament; a point, whether true or not, of no great importance, if it were acknowledged, that many statutes had subsequently controlled this prerogative. But these judges impugned the authority of statutes derogatory to their idol. That of 45 E. 3, c. 4, that no new imposition should be laid on wool or leather, one of them maintains, did not bind the king's successors; for the right to impose such duties was a principal part of the Crown of England, which the king could not diminish. They extolled the king's grace in permitting the matter to be argued, commenting at the same time on the insolence shown in disputing so undeniable a claim. Nor could any judges be more peremptory in resisting an attempt to overthrow the most established precedents, than were these barons of King James's exchequer, in giving away those fundamental liberties in which every Englishman was inherited.[523] _Remonstrances against impositions in session of 1610._--The immediate consequence of this decision was a book of rates, published in July 1608, under the authority of the great seal, imposing heavy duties upon almost all merchandise.[524] But the judgment of the court of exchequer did not satisfy men jealous of the Crown's encroachments. The imposition on currants had been already noticed as a grievance by the House of Commons in 1606. But the king answered that the question was in a course for legal determination; and the Commons themselves, which is worthy of remark, do not appear to have entertained any clear persuasion that the impost was contrary to law.[525] In the session, however, which began in February 1610, they had acquired new light by sifting the legal authorities, and instead of submitting their opinions to the courts of law, which were in truth little worthy of such deference, were the more provoked to remonstrate against the novel usurpation those servile men had endeavoured to prop up. Lawyers, as learned probably as most of the judges, were not wanting in their ranks. The illegality of impositions was shown in two elaborate speeches by Hakewill and Yelverton.[526] And the country gentlemen, who, though less deeply versed in precedents, had too good sense not to discern that the next step would be to levy taxes on their lands, were delighted to find that there had been an old English constitution not yet abrogated, which would bear them out in their opposition. When the king therefore had intimated by a message, and afterwards in a speech, his command not to enter on the subject, couched in that arrogant tone of despotism which this absurd prince affected,[527] they presented a strong remonstrance against this inhibition; claiming "as an ancient, general, and undoubted right of parliament to debate freely all matters which do probably concern the subject; which freedom of debate being once foreclosed, the essence of the liberty of parliament is withal dissolved. For the judgment given by the exchequer, they take not on them to review it, but desire to know the reasons whereon it was grounded; especially as it was generally apprehended that the reasons of that judgment extended much farther, even to the utter ruin of the ancient liberty of this kingdom, and of the subjects' right of property in their lands and goods."[528] "The policy and constitution of this your kingdom (they say) appropriates unto the kings of this realm, with the assent of the parliament, as well the sovereign power of making laws, as that of taxing, or imposing upon the subjects' goods or merchandises, as may not, without their consents, be altered or changed. This is the cause that the people of this kingdom, as they ever showed themselves faithful and loving to their kings, and ready to aid them, in all their just occasions, with voluntary contributions; so have they been ever careful to preserve their own liberties and rights, when anything hath been done to prejudice or impeach the same. And therefore when their princes, occasioned either by their wars, or their over-great bounty, or by any other necessity, have without consent of parliament set impositions, either within the land, or upon commodities either exported or imported by the merchants, they have, in open parliament, complained of it, in that it was done without their consents: and thereupon never failed to obtain a speedy and full redress, without any claim made by the kings, of any power or prerogative in that point. And though the law of property be original, and carefully preserved by the common laws of this realm, which are as ancient as the kingdom itself; yet these famous kings, for the better contentment and assurance of their loving subjects, agreed, that this old fundamental right should be further declared and established by act of parliament. Wherein it is provided, that no such charges should ever be laid upon the people, without their common consent, as may appear by sundry records of former times. We, therefore, your majesty's most humble Commons assembled in parliament, following the example of this worthy case of our ancestors, and out of a duty of those for whom we serve, finding that your majesty, without advice or consent of parliament, hath lately, in time of peace, set both greater impositions, and far more in number, than any your noble ancestors did ever in time of war, have, with all humility, presumed to present this most just and necessary petition unto your majesty, that all impositions set without the assent of parliament may be quite abolished and taken away; and that your majesty, in imitation likewise of your noble progenitors, will be pleased, that a law be made during this session of parliament, to declare that all impositions set, or to be set upon your people, their goods or merchandises, save only by common assent in parliament, are and shall be void."[529] They proceeded accordingly, after a pretty long time occupied in searching for precedents, to pass a bill taking away impositions; which, as might be anticipated, did not obtain the concurrence of the upper house. _Doctrine of king's absolute power inculcated by clergy._--The Commons had reason for their apprehensions. This doctrine of the king's absolute power beyond the law had become current with all who sought his favour, and especially with the high church party. The convocation had in 1606 drawn up a set of canons, denouncing as erroneous a number of tenets hostile in their opinion to royal government. These canons, though never authentically published till a later age, could not have been secret. They consist of a series of propositions or paragraphs, to each of which an anathema of the opposite error is attached; deducing the origin of government from the patriarchal regimen of families, to the exclusion of any popular choice. In those golden days the functions both of king and priest were, as they term it, "the prerogatives of birthright;" till the wickedness of mankind brought in usurpation, and so confused the pure stream of the fountain with its muddy runnels, that we must now look to prescription for that right which we cannot assign to primogeniture. Passive obedience in all cases without exception to the established monarch is inculcated.[530] It is not impossible that a man might adopt this theory of the original of government, unsatisfactory as it must appear on reflection, without deeming it incompatible with our mixed and limited monarchy. But its tendency was evidently in a contrary direction. The king's power was of God, that of the parliament only of man, obtained perhaps by rebellion; but out of rebellion what right could spring? Or were it even by voluntary concession, could a king alienate a divine gift, and infringe the order of Providence? Could his grants, if not in themselves null, avail against his posterity, heirs like himself under the great feoffment of creation? These consequences were at least plausible; and some would be found to draw them. And indeed if they were never explicitly laid down, the mere difference of respect with which mankind could not but contemplate a divine and human, a primitive or paramount, and a derivative authority, would operate as a prodigious advantage in favour of the Crown. The real aim of the clergy in thus enormously enhancing the pretensions of the Crown was to gain its sanction and support for their own. Schemes of ecclesiastical jurisdiction, hardly less extensive than had warmed the imagination of Becket, now floated before the eyes of his successor Bancroft. He had fallen indeed upon evil days, and perfect independence on the temporal magistrate could no longer be attempted; but he acted upon the refined policy of making the royal supremacy over the church, which he was obliged to acknowledge, and professed to exaggerate, the very instrument of its independence upon the law. The favourite object of the bishops in this age was to render their ecclesiastical jurisdiction, no part of which had been curtailed in our hasty reformation, as unrestrained as possible by the courts of law. These had been wont, down from the reign of Henry II., to grant writs of prohibition, whenever the spiritual courts transgressed their proper limits; to the great benefit of the subject, who would otherwise have lost his birthright of the common law, and been exposed to the defective, not to say iniquitous and corrupt, procedure of the ecclesiastical tribunals. But the civilians, supported by the prelates, loudly complained of these prohibitions, which seem to have been much more frequent in the latter years of Elizabeth and the reign of James, than in any other period. Bancroft accordingly presented to the star-chamber, in 1605, a series of petitions in the name of the clergy, which Lord Coke has denominated Articuli Cleri, by analogy to some similar representations of that order under Edward II.[531] In these it was complained that the courts of law interfered by continual prohibitions with a jurisdiction as established and as much derived from the king as their own, either in cases which were clearly within that jurisdiction's limits, or on the slightest suggestion of some matter belonging to the temporal court. It was hinted that the whole course of granting prohibitions was an encroachment of the king's bench and common pleas, and that they could regularly issue only out of chancery. To each of these articles of complaint, extending to twenty-five, the judges made separate answers, in a rough, and, some might say, a rude style, but pointed and much to the purpose; vindicating in every instance their right to take cognisance of every collateral matter springing out of an ecclesiastical suit, and repelling the attack upon their power to issue prohibitions, as a strange presumption. Nothing was done, nor, thanks to the firmness of the judges, could be done, by the council in this respect. For the clergy had begun by advancing that the king's authority was sufficient to reform what was amiss in any of his own courts, all jurisdiction spiritual and temporal being annexed to his Crown. But it was positively and repeatedly denied in reply, that anything less than an act of parliament could alter the course of justice established by law. This effectually silenced the archbishop, who knew how little he had to hope from the Commons. By the pretensions made for the church in this affair, he exasperated the judges, who had been quite sufficiently disposed to second all rigorous measures against the puritan ministers, and aggravated that jealousy of the ecclesiastical courts which the common lawyers had long entertained. _Cowell's Interpreter._--An opportunity was soon given to those who disliked the civilians, that is, not only to the common lawyers, but to all the patriots and puritans in England, by an imprudent publication of a Doctor Cowell. This man, in a law dictionary dedicated to Bancroft, had thought fit to insert passages of a tenor conformable to the new creed of the king's absolute or arbitrary power. Under the title King, it is said:--"He is above the law by his absolute power, and though for the better and equal course in making laws he do admit the three estates unto council, yet this in divers learned men's opinion is not of constraint, but of his own benignity, or by reason of the promise made upon oath at the time of his coronation. And though at his coronation he take an oath not to alter the laws of the land, yet this oath notwithstanding, he may alter or suspend any particular law that seemeth hurtful to the public estate. Thus much in short, because I have heard some to be of opinion that the laws are above the king." And in treating of the Parliament, Cowell observes: "Of these two one must be true, either that the king is above the parliament, that is, the positive laws of his kingdom, or else that he is not an absolute king. And therefore though it be a merciful policy and also a politic mercy, not alterable without great peril, to make laws by the consent of the whole realm, because so no part shall have cause to complain of a partiality, yet simply to bind the prince to or by these laws were repugnant to the nature and constitution of an absolute monarchy." It is said again, under the title Prerogative, that "the king, by the custom of this kingdom, maketh no laws without the consent of the three estates, though he may quash any law concluded of by them;" and that he "holds it incontrollable, that the king of England is an absolute king."[532] Such monstrous positions from the mouth of a man of learning and conspicuous in his profession, who was surmised to have been instigated as well as patronised by the archbishop, and of whose book the king was reported to have spoken in terms of eulogy, gave very just scandal to the House of Commons. They solicited and obtained a conference with the lords, which the attorney-general, Sir Francis Bacon, managed on the part of the lower house; a remarkable proof of his adroitness and pliancy. James now discovered that it was necessary to sacrifice this too unguarded advocate of prerogative: Cowell's book was suppressed by proclamation, for which the Commons returned thanks, with great joy at their victory.[533] It is the evident policy of every administration, in dealing with the House of Commons, to humour them in everything that touches their pride and tenaciousness of privilege, never attempting to protect any one who incurs their displeasure by want of respect. This seems to have been understood by the Earl of Salisbury, the first English minister who, having long sat in the lower house, had become skilful in those arts of management which his successors have always reckoned so essential a part of their mystery. He wanted a considerable sum of money to defray the king's debts, which, on his coming into the office of lord treasurer after Lord Buckhurst's death, he had found to amount to £1,300,000, about one-third of which was still undischarged. The ordinary expense also surpassed the revenue by £81,000. It was impossible that this could continue, without involving the Crown in such embarrassments as would leave it wholly at the mercy of parliament. Cecil therefore devised the scheme of obtaining a perpetual yearly revenue of £200,000, to be granted once for all by parliament; and the better to incline the house to this high and extraordinary demand, he promised in the king's name to give all the redress and satisfaction in his power for any grievances they might bring forward.[534] _Renewed complaints of the Commons._--This offer on the part of government seemed to make an opening for a prosperous adjustment of the differences which had subsisted ever since the king's accession. The Commons accordingly, postponing the business of a subsidy, to which the courtiers wished to give priority, brought forward a host of their accustomed grievances in ecclesiastical and temporal concerns. The most essential was undoubtedly that of impositions, which they sent up a bill to the Lords, as above mentioned, to take away. They next complained of the ecclesiastical high commission court, which took upon itself to fine and imprison, powers not belonging to their jurisdiction, and passed sentences without appeal, interfering frequently with civil rights, and in all its procedure neglecting the rules and precautions of the common law. They dwelt on the late abuse of proclamations assuming the character of laws. "Amongst many other points of happiness and freedom," it is said, "which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law, which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government, which, as it hath proceeded from the original good constitution and temperature of this estate, so hath it been the principal means of upholding the same, in such sort as that their kings have been just, beloved, happy, and glorious, and the kingdom itself peaceable, flourishing, and durable so many ages. And the effect, as well of the contentment that the subjects of this kingdom have taken in this form of government, as also of the love, respect, and duty, which they have by reason of the same rendered unto their princes, may appear in this, that they have, as occasion hath required, yielded more extraordinary and voluntary contribution to assist their kings, than the subjects of any other known kingdom whatsoever. Out of this root hath grown the indubitable right of the people of this kingdom, not to be made subject to any punishment that shall extend to their lives, lands, bodies, or goods, other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parliament. Nevertheless, it is apparent, both that proclamations have been of late years much more frequent than heretofore, and that they are extended, not only to the liberty, but also to the goods, inheritances, and livelihood of men; some of them tending to alter some points of the law, and make a new; other some made, shortly after a session of parliament, for matter directly rejected in the same session; other appointing punishments to be inflicted before lawful trial and conviction; some containing penalties in form of penal statutes; some referring the punishment of offenders to courts of arbitrary discretion, which have laid heavy and grievous censures upon the delinquents; some, as the proclamation for starch, accompanied with letters commanding enquiry to be made against the transgressors at the quarter-sessions; and some vouching former proclamations to countenance and warrant the later, as by a catalogue here underwritten more particularly appeareth. By reason whereof there is a general fear conceived and spread amongst your majesty's people, that proclamations will, by degrees, grow up, and increase to the strength and nature of laws; whereby not only that ancient happiness, freedom, will be much blemished (if not quite taken away) which their ancestors have so long enjoyed; but the same may also (in process of time) bring a new form of arbitrary government upon the realm: and this their fear is the more increased by occasion of certain books lately published, which ascribe a greater power to proclamations than heretofore had been conceived to belong unto them; as also of the care taken to reduce all the proclamations made since your majesty's reign into one volume, and to print them in such form as acts of parliament formerly have been, and still are used to be, which seemeth to imply a purpose to give them more reputation and more establishment than heretofore they have had."[535] They proceed, after a list of these illegal proclamations, to enumerate other grievances, such as the delay of courts of law in granting writs of prohibition and habeas corpus, the jurisdiction of the council of Wales over the four bordering shires of Gloucester, Worcester, Hereford, and Salop,[536] some patents of monopolies, and a tax under the name of a licence recently set upon victuallers. The king answered these remonstrances with civility, making, as usual, no concession with respect to the ecclesiastical commission, and evading some of their other requests; but promising that his proclamations should go no farther than was warranted by law, and that the royal licences to victuallers should be revoked. _Negotiation for giving up the feudal revenue._--It appears that the Commons, deeming these enumerated abuses contrary to law, were unwilling to chaffer with the Crown for the restitution of their actual rights. There were, however, parts of the prerogative which they could not dispute, though galled by the burthen; the incidents of feudal tenure, and purveyance. A negotiation was accordingly commenced and carried on for some time with the court, for abolishing both these, or at least the former. The king, though he refused to part with tenure by knight's service, which he thought connected with the honour of the monarchy, was induced, with some real or pretended reluctance, to give up its lucrative incidents, relief, primer seisin, and wardship, as well as the right of purveyance. But material difficulties recurred in the prosecution of this treaty. Some were apprehensive that the validity of a statute cutting off such ancient branches of prerogative might hereafter be called in question; especially if the root from which they sprung, tenure in capite, should still remain. The king's demands, too, seemed exorbitant. He asked £200,000 as a yearly revenue over and above £100,000, at which his wardships were valued, and which the Commons were content to give. After some days' pause upon this proposition, they represented to the Lords, with whom, through committees of conference, the whole matter had been discussed, that if such a sum were to be levied on those only who had lands subject to wardship, it would be a burthen they could not endure; and that if it were imposed equally on the kingdom, it would cause more offence and commotion in the people than they could risk. After a good deal of haggling, Salisbury delivered the king's final determination to accept of £200,000 per annum, which the Commons voted to grant as a full composition for abolishing the right of wardship, and dissolving the court that managed it, and for taking away all purveyance; with some further concessions, and particularly, that the king's claim to lands should be bound by sixty years' prescription. Two points yet remained, of no small moment; namely, by what assurance they could secure themselves against the king's prerogative, so often held up by court lawyers as something uncontrollable by statute, and by what means so great an imposition should be levied; but the consideration of these was reserved for the ensuing session, which was to take place in October.[537] They were prorogued in July till that month, having previously granted a subsidy for the king's immediate exigencies. On their meeting again, the Lords began the business by requesting a conference with the other house about the proposed contract. But it appeared that the Commons had lost their disposition to comply. Time had been given them to calculate the disproportion of the terms, and the perpetual burthen that lands held by knight's service must endure. They had reflected too on the king's prodigal humour, the rapacity of the Scots in his service, and the probability that this additional revenue would be wasted without sustaining the national honour, or preventing future applications for money. They saw that after all the specious promises by which they had been led on, no redress was to be expected as to those grievances they had most at heart; that the ecclesiastical courts would not be suffered to lose a jot of their jurisdiction, that illegal customs were still to be levied at the out-ports, that proclamations were still to be enforced like acts of parliament. Great coldness accordingly was displayed in their proceedings; and in a short time, this distinguished parliament, after sitting nearly seven years, was dissolved by proclamation.[538] _Dissolution of parliament--Character of James._--It was now perhaps too late for the king, by any reform or concession, to regain that public esteem which he had forfeited. Deceived by an overweening opinion of his own learning, which was not inconsiderable, of his general abilities which were far from contemptible, and of his capacity for government, which was very small, and confirmed in this delusion by the disgraceful flattery of his courtiers and bishops, he had wholly overlooked the real difficulties of his position; as a foreigner, rather distantly connected with the royal stock, and as a native of a hostile and hateful kingdom, come to succeed the most renowned of sovereigns, and to grasp a sceptre which deep policy and long experience had taught her admirably to wield.[539] The people were proud of martial glory, he spoke only of the blessing of the peacemakers; they abhorred the court of Spain, he sought its friendship; they asked indulgence for scrupulous consciences, he would bear no deviation from conformity; they writhed under the yoke of the bishops, whose power he thought necessary to his own; they were animated by a persecuting temper towards the catholics, he was averse to extreme rigour; they had been used to the utmost frugality in dispensing the public treasure, he squandered it on unworthy favourites; they had seen at least exterior decency of morals prevail in the queen's court, they now heard only of its dissoluteness and extravagance;[540] they had imbibed an exclusive fondness for the common law as the source of their liberties and privileges; his churchmen and courtiers, but none more than himself, talked of absolute power and the imprescriptible rights of monarchy.[541] _Death of Lord Salisbury._--James lost in 1611 his son Prince Henry, and in 1612 the lord treasurer Salisbury. He showed little regret for the former, whose high spirit and great popularity afforded a mortifying contrast; especially as the young prince had not taken sufficient pains to disguise his contempt for his father.[542] Salisbury was a very able man, to whom perhaps his contemporaries did some injustice. The ministers of weak and wilful monarchs are made answerable for the mischiefs they are compelled to suffer, and gain no credit for those which they prevent. Cecil had made personal enemies of those who had loved Essex or admired Raleigh, as well as those who looked invidiously on his elevation. It was believed that the desire shown by the House of Commons to abolish the feudal wardships, proceeded in a great measure from the circumstance that this obnoxious minister was master of the court of wards; an office both lucrative and productive of much influence. But he came into the scheme of abolishing it with a readiness that did him credit. His chief praise, however, was his management of continental relations. The only minister of James's cabinet who had been trained in the councils of Elizabeth, he retained some of her jealousy of Spain, and of her regard for the protestant interests. The court of Madrid, aware both of the king's pusillanimity and of his favourable dispositions, affected a tone in the conferences held in 1604, about a treaty of peace, which Elizabeth would have resented in a very different manner.[543] On this occasion, he not only deserted the United Provinces, but gave hopes to Spain that he might, if they persevered in their obstinacy, take part against them. Nor have I any doubt that his blind attachment to that power would have precipitated him into a ruinous connection, if Cecil's wisdom had not influenced his councils. During this minister's life, our foreign politics seem to have been conducted with as much firmness and prudence as his master's temper would allow; the mediation of England was of considerable service in bringing about the great truce of twelve years between Spain and Holland in 1609; and in the dispute which sprang up soon afterwards concerning the succession to the duchies of Cleves and Juliers, a dispute which threatened to mingle in arms the catholic and protestant parties throughout Europe,[544] our councils were full of a vigour and promptitude unusual in this reign; nor did anything but the assassination of Henry IV. prevent the appearance of an English army in the Netherlands. It must at least be confessed that the king's affairs, both at home and abroad, were far worse conducted after the death of the Earl of Salisbury than before.[545] _Lord Coke's alienation from the court._--The administration found an important disadvantage, about this time, in a sort of defection of Sir Edward Coke (more usually called Lord Coke), chief justice of the king's bench, from the side of prerogative. He was a man of strong, though narrow, intellect; confessedly the greatest master of English law that had ever appeared; but proud and overbearing, a flatterer and tool of the court till he had obtained his ends, and odious to the nation for the brutal manner in which, as attorney-general, he had behaved towards Sir Walter Raleigh on his trial. In raising him to the post of chief justice, the council had of course relied on finding his unfathomable stores of precedent subservient to their purposes. But soon after his promotion, Coke, from various causes, began to steer a more independent course. He was little formed to endure a competitor in his own profession, and lived on ill terms both with the lord chancellor Egerton, and with the attorney-general, Sir Francis Bacon. The latter had long been his rival and enemy. Discountenanced by Elizabeth, who, against the importunity of Essex, had raised Coke over his head, that great and aspiring genius was now high in the king's favour. The chief justice affected to look down on one as inferior to him in knowledge of our municipal law, as he was superior in all other learning and in all the philosophy of jurisprudence. And the mutual enmity of these illustrious men never ceased till each in his turn satiated his revenge by the other's fall. Coke was also much offended by the attempts of the bishops to emancipate their ecclesiastical courts from the civil jurisdiction. I have already mentioned the peremptory tone in which he repelled Bancroft's Articuli Cleri. But as the king and some of the council rather favoured these episcopal pretensions, they were troubled by what they deemed his obstinacy, and discovered more and more that they had to deal with a most impracticable spirit. It would be invidious to exclude from the motives that altered Lord Coke's behaviour in matters of prerogative his real affection for the laws of the land, which novel systems, broached by the churchmen and civilians, threatened to subvert.[546] In Bates's case, which seems to have come in some shape extra-judicially before him, he had delivered an opinion in favour of the king's right to impose at the out-ports; but so cautiously guarded, and bottomed on such different grounds from those taken by the barons of the exchequer, that it could not be cited in favour of any fresh encroachments.[547] He now performed a great service to his country. The practice of issuing proclamations, by way of temporary regulation indeed, but interfering with the subject's liberty, in cases unprovided for by parliament, had grown still more usual than under Elizabeth. Coke was sent for to attend some of the council, who might perhaps have reason to conjecture his sentiments; and it was demanded whether the king, by his proclamation, might prohibit new buildings about London, and whether he might prohibit the making of starch from wheat. This was during the session of parliament in 1610, and with a view to what answer the king should make to the Commons' remonstrance against these proclamations. Coke replied, that it was a matter of great importance, on which he would confer with his brethren. "The chancellor said, that every precedent had first a commencement, and he would advise the judges to maintain the power and prerogative of the king; and in cases wherein there is no authority and precedent, to leave it to the king to order in it according to his wisdom and for the good of his subjects, or otherwise the king would be no more than the Duke of Venice; and that the king was so much restrained in his prerogative, that it was to be feared the bonds would be broken. And the lord privy-seal (Northampton) said, that the physician was not always bound to a precedent, but to apply his medicine according to the quality of the disease; and all concluded that it should be necessary at that time to confirm the king's prerogative, with our opinions, although that there were not any former precedent or authority in law; for every precedent ought to have a commencement. To which I answered, that true it is that every precedent ought to have a commencement; but when authority and precedent is wanting, there is need of great consideration before that anything of novelty shall be established, and to provide that this be not against the law of the land; for I said that the king cannot change any part of the common law, nor create any offence by his proclamation which was not an offence before, without parliament. But at this time I only desired to have a time of consultation and conference with my brothers." This was agreed to by the council, and three judges, besides Coke, appointed to consider it. They resolved that the king, by his proclamation, cannot create any offence which was not one before; for then he might alter the law of the land in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment. It was also resolved that the king hath no prerogative but what the law of the land allows him. But the king, for prevention of offences, may by proclamation admonish all his subjects that they keep the laws and do not offend them, upon punishment to be inflicted by the law; and the neglect of such proclamation, Coke says, aggravates the offence. Lastly, they resolved that if an offence be not punishable in the star-chamber, the prohibition of it by proclamation cannot make it so. After this resolution, the report goes on to remark, no proclamation imposing fine and imprisonment was made.[548] _Means resorted to in order to avoid the meeting of parliament._--By the abrupt dissolution of parliament James was left nearly in the same necessity as before; their subsidy, being by no means sufficient to defray his expenses, far less to discharge his debts. He had frequently betaken himself to the usual resource of applying to private subjects, especially rich merchants, for loans of money. These loans, which bore no interest, and for the repayment of which there was no security, disturbed the prudent citizens; especially as the council used to solicit them with a degree of importunity at least bordering on compulsion. The House of Commons had in the last session requested that no one should be bound to lend money to the king against his will. The king had answered that he allowed not of any precedents from the time of usurping or decaying princes, or people too bold and wanton; that he desired not to govern in that commonwealth where the people be assured of everything and hope for nothing, nor would he leave to posterity such a mark of weakness on his reign; yet, in the matter of loans, he would refuse no reasonable excuse.[549] Forced loans or benevolences were directly prohibited by an act of Richard III., whose laws, however the court might sometimes throw a slur upon his usurpation, had always been in the statute-book. After the dissolution of 1610, James attempted as usual to obtain loans; but the merchants, grown bolder with the spirit of the times, refused him the accommodation.[550] He had recourse to another method of raising money, unprecedented, I believe, before his reign, though long practised in France, the sale of honours. He sold several peerages for considerable sums, and created a new order of hereditary knights, called baronets, who paid £1,000 each for their patents.[551] Such resources, however, being evidently insufficient and temporary, it was almost indispensable to try once more the temper of a parliament. This was strongly urged by Bacon, whose fertility of invention rendered him constitutionally sanguine of success. He submitted to the king that there were expedients for more judiciously managing a House of Commons, than Cecil, upon whom he was too willing to throw blame, had done with the last; that some of those who had been most forward in opposing were now won over; such as Neville, Yelverton, Hyde, Crew, Dudley Digges; that much might be done by forethought towards filling the house with well-affected persons, winning or blinding the lawyers, whom he calls the literæ vocales of the house, and drawing the chief constituent bodies of the assembly, the country gentlemen, the merchants, the courtiers, to act for the king's advantage; that it would be expedient to tender voluntarily certain graces and modifications of the king's prerogative, such as might with smallest injury be conceded, lest they should be first demanded, and in order to save more important points.[552] This advice was seconded by Sir Henry Neville, an ambitious man, who had narrowly escaped in the queen's time for having tampered in Essex's conspiracy, and had much promoted the opposition in the late parliament, but was now seeking the post of secretary of state. He advised the king, in a very sensible memorial, to consider what had been demanded and what had been promised in the last session, granting the more reasonable of the Commons' requests, and performing all his own promises; to avoid any speech likely to excite irritation; and to seem confident of the parliament's good affections, not waiting to be pressed for what he meant to do.[553] Neville and others, who, like him, professed to understand the temper of the Commons, and to facilitate the king's dealings with them, were called _undertakers_.[554] This circumstance, like several others in the present reign, is curious, as it shows the rise of a systematic parliamentary influence, which was one day to become the mainspring of government. Neville, however, and his associates had deceived the courtiers with promises they could not realise. It was resolved to announce certain intended graces in the speech from the throne; that is, to declare the king's readiness to pass bills that might remedy some grievances and retrench a part of his prerogative. These proffered amendments of the law, though eleven in number, failed altogether of giving the content that had been fully expected. Except the repeal of a strange act of Henry VIII., allowing the king to make such laws as he should think fit for the principality of Wales without consent of parliament,[555] none of them could perhaps be reckoned of any constitutional importance. In all domanial and fiscal causes, and wherever the private interests of the Crown stood in competition with those of a subject, the former enjoyed enormous and superior advantages, whereof what is strictly called its prerogative was principally composed. The terms of prescription that bound other men's right, the rules of pleading and procedure established for the sake of truth and justice, did not, in general, oblige the king. It was not by doing away with a very few of these invidious and oppressive distinctions, that the Crown could be allowed to keep on foot still more momentous abuses. _Parliament of 1614._--The Commons of 1614 accordingly went at once to the characteristic grievance of this reign, the customs at the outports. They had grown so confident in their cause by ransacking ancient records, that an unanimous vote passed against the king's right of imposition; not that there were no courtiers in the house, but the cry was too obstreperous to be withstood.[556] They demanded a conference on the subject with the Lords, who preserved a kind of mediating neutrality throughout this reign.[557] In the course of their debate, Neyle, Bishop of Lichfield, threw out some aspersion on the Commons. They were immediately in a flame, and demanded reparation. This Neyle was a man of indifferent character, and very unpopular from the share he had taken in the Earl of Essex's divorce, and from his severity towards the puritans; nor did the house fail to comment upon all his faults in their debate. He had, however, the prudence to excuse himself ("with many tears," as the Lords' Journals inform us), denying the most offensive words imputed to him; and the affair went no farther.[558] This ill-humour of the Commons disconcerted those who had relied on the undertakers. But as the secret of these men had not been kept, their project considerably aggravated the prevailing discontent.[559] The king had positively denied in his first speech that there were any such undertakers; and Bacon, then attorney-general, laughed at the chimerical notion, that private men should undertake for all the Commons of England.[560] That some persons however had obtained that name at court, and held out such promises, is at present out of doubt; and indeed the king, forgetful of his former denial, expressly confessed it on opening the session of 1621. Amidst these heats little progress was made; and no one took up the essential business of supply. The king at length sent a message, requesting that a supply might be granted, with a threat of dissolving parliament unless it were done. But the days of intimidation were gone by. The house voted that they would first proceed with the business of impositions, and postpone supply till their grievances should be redressed.[561] Aware of the impossibility of conquering their resolution, the king carried his measure into effect by a dissolution.[562] They had sat about two months, and, what is perhaps unprecedented in our history, had not passed a single bill. James followed up this strong step by one still more vigorous. Several members, who had distinguished themselves by warm language against the government, were arrested after the dissolution, and kept for a short time in custody; a manifest violation of that freedom of speech, without which no assembly can be independent, and which is the stipulated privilege of the House of Commons.[563] _Benevolences._--It was now evident that James could never expect to be on terms of harmony with a parliament, unless by surrendering pretensions, which not only were in his eyes indispensable to the lustre of his monarchy, but from which he derived an income that he had no means of replacing. He went on accordingly for six years, supplying his exigencies by such precarious sources as circumstances might furnish. He restored the towns mortgaged by the Dutch to Elizabeth on payment of 2,700,000 florins, about one-third of the original debt. The enormous fines imposed by the star-chamber, though seldom, I believe, enforced to their utmost extent, must have considerably enriched the exchequer. It is said by Carte that some Dutch merchants paid fines to the amount of £133,000 for exporting gold coin.[564] But still greater profit was hoped from the requisition of that more than half involuntary contribution, miscalled a benevolence. It began by a subscription of the nobility and principal persons about the court. Letters were sent written to the sheriffs and magistrates, directing them to call on people of ability. It had always been supposed doubtful whether the statute of Richard III. abrogating "exactions, called benevolences," should extend to voluntary gifts at the solicitation of the Crown. The language used in that act certainly implies that the pretended benevolences of Edward's reign had been extorted against the subjects' will; yet if positive violence were not employed, it seems difficult to find a legal criterion by which to distinguish the effects of willing loyalty from those of fear or shame. Lord Coke is said to have at first declared that the king could not solicit a benevolence from his subjects, but to have afterwards retracted his opinion and pronounced in favour of its legality. To this second opinion he adheres in his Reports.[565] While this business was pending, Mr. Oliver St. John wrote a letter to the mayor of Marlborough, explaining his reasons for declining to contribute, founded on the several statutes which he deemed applicable, and on the impropriety of particular men opposing their judgment, to the Commons in parliament, who had refused to grant any subsidy. This argument, in itself exasperating, he followed up by somewhat blunt observations on the king. His letter came under the consideration of the star-chamber, where the offence having been severely descanted upon by the attorney-general, Mr. St. John was sentenced to a fine of £5000, and to imprisonment during pleasure.[566] _Prosecution of Peacham._--Coke, though still much at the council-board, was regarded with increasing dislike on account of his uncompromising humour. This he had occasion to display in perhaps the worst and most tyrannical act of King James's reign, the prosecution of one Peacham, a minister in Somersetshire, for high treason. A sermon had been found in this man's study (it does not appear what led to the search), never preached, nor, if Judge Croke is right, intended to be preached, containing such sharp censures upon the king, and invectives against the government, as, had they been published, would have amounted to a seditious libel. But common sense revolted at construing it into treason, under the statute of Edward III., as a compassing of the king's death. James, however, took it up with indecent eagerness. Peacham was put to the rack, and examined upon various interrogatories, as it is expressed by secretary Winwood, "before torture, in torture, between torture, and after torture." Nothing could be drawn from him as to any accomplices, nor any explanation of his design in writing the sermon; which was probably but an intemperate effusion, so common among the puritan clergy. It was necessary therefore to rely on this, as the overt act of treason. Aware of the difficulties that attended this course, the king directed Bacon previously to confer with the judges of the king's bench, one by one, in order to secure their determination for the Crown. Coke objected that "such particular, and as he called it, auricular taking of opinions was not according to the custom of this realm."[567] The other three judges having been tampered with, agreed to answer such questions concerning the case as the king might direct to be put to them; yielding to the sophism that every judge was bound by his oath to give counsel to his majesty. The chief justice continued to maintain his objection to this separate closeting of judges; yet, finding himself abandoned by his colleagues, consented to give answers in writing, which seem to have been merely evasive. Peacham was brought to trial, and found guilty, but not executed, dying in prison a few months after.[568] _Dispute about the jurisdiction of the court of chancery._--It was not long before the intrepid chief justice incurred again the council's displeasure. This will require, for the sake of part of my readers, some little previous explanation. The equitable jurisdiction, as it is called, of the court of chancery appears to have been derived from that extensive judicial power which, in early times, the king's ordinary council had exercised. The chancellor, as one of the highest officers of state, took a great share in the council's business; and when it was not sitting, he had a court of his own, with jurisdiction in many important matters, out of which process to compel appearance of parties might at any time emanate. It is not unlikely therefore that redress, in matters beyond the legal province of the chancellor, was occasionally given through the paramount authority of this court. We find the council and the chancery named together in many remonstrances of the Commons against this interference with private rights, from the time of Richard II. to that of Henry VI. It was probably in the former reign that the chancellor began to establish systematically his peculiar restraining jurisdiction. This originated in the practice of feoffments to uses, by which the feoffee, who had legal seisin of the land, stood bound by private engagement to suffer another, called the cestui que use, to enjoy its use and possession. Such fiduciary estates were well known to the Roman jurists, but inconsistent with the feudal genius of our law. The courts of justice gave no redress, if the feoffee to uses violated his trust by detaining the land. To remedy this, an ecclesiastical chancellor devised the writ of subpoena, compelling him to answer upon oath as to his trust. It was evidently necessary also to restrain him from proceeding, as he might do, to obtain possession; and this gave rise to injunctions, that is, prohibitions to sue at law, the violation of which was punishable by imprisonment as a contempt of court. Other instances of breach of trust occurred in personal contracts, and others wherein, without any trust, there was a wrong committed beyond the competence of the courts of law to redress; to all which the process of subpoena was made applicable. This extension of a novel jurisdiction was partly owing to a fundamental principle of our common law, that a defendant cannot be examined, so that, if no witness or written instrument could be produced to prove a demand, the plaintiff was wholly debarred of justice; but in a still greater degree, to a strange narrowness and scrupulosity of the judges, who, fearful of quitting the letter of their precedents, even with the clearest analogies to guide them, repelled so many just suits, and set up rules of so much hardship, that men were thankful to embrace the relief held out by a tribunal acting in a more rational spirit. This error the common lawyers began to discover, in time to resume a great part of their jurisdiction in matters of contract, which would otherwise have escaped from them. They made too an apparently successful effort to recover their exclusive authority over real property, by obtaining a statute for turning uses into possession; that is, for annihilating the fictitious estate of the feoffee to uses, and vesting the legal as well as equitable possession in the cestui que use. But this victory, if I may use such an expression (since it would have freed them, in a most important point, from the chancellor's control), they threw away by one of those timid and narrow constructions which had already turned so much to their prejudice; and they permitted trust-estates, by the introduction of a few more words into a conveyance, to maintain their ground, contra-distinguished from the legal seisin, under the protection and guarantee, as before, of the courts of equity. The particular limits of this equitable jurisdiction were as yet exceedingly indefinite. The chancellors were generally prone to extend them; and being at the same time ministers of state in a government of very arbitrary temper, regarded too little that course of precedent by which the other judges held themselves too strictly bound. The cases reckoned cognisable in chancery grew silently more and more numerous; but with little overt opposition from the courts of law till the time of Sir Edward Coke. That great master of the common law was inspired not only with the jealousy of this irregular and encroaching jurisdiction which all lawyers seem to have felt, but with a tenaciousness of his own dignity, and a personal enmity towards Egerton who held the great seal. It happened that an action was tried before him, the precise circumstances of which do not appear, wherein the plaintiff lost the verdict, in consequence of one of his witnesses being artfully kept away. He had recourse to the court of chancery, filing a bill against the defendant to make him answer upon oath, which he refused to do, and was committed for contempt. Indictments were upon this preferred, at Coke's instigation, against the parties who had filed the bill in chancery, their counsel and solicitors, for suing in another court after judgment obtained at law; which was alleged to be contrary to the statute of præmunire. But the grand jury, though pressed, as is said, by one of the judges, threw out these indictments. The king, already incensed with Coke, and stimulated by Bacon, thought this too great an insult upon his chancellor to be passed over. He first directed Bacon and others to search for precedents of cases where relief had been given in chancery after judgment at law. They reported that there was a series of such precedents from the time of Henry VIII.; and some where the chancellor had entertained suits even after execution. The attorney-general was directed to prosecute in the star-chamber those who had preferred the indictments; and as Coke had not been ostensibly implicated in the business, the king contented himself with making an order in the council-book, declaring the chancellor not to have exceeded his jurisdiction.[569] _Case of commendams._--The chief justice almost at the same time gave another provocation, which exposed him more directly to the court's resentment. A cause happened to be argued in the court of the king's bench, wherein the validity of a particular grant of a benefice to a bishop to be held in commendam, that is, along with his bishopric, came into question; and the counsel at the bar, besides the special points of the case, had disputed the king's general prerogative of making such a grant. The king, on receiving information of this, signified to the chief justice through the attorney-general, that he would not have the court proceed to judgment till he had spoken with them. Coke requested that similar letters might be written to the judges of all the courts. This having been done, they assembled, and by a letter subscribed with all their hands, certified his majesty, that they were bound by their oaths not to regard any letters that might come to them contrary to law, but to do the law notwithstanding; that they held with one consent the attorney-general's letter to be contrary to law, and such as they could not yield to, and that they had proceeded according to their oath to argue the cause. The king, who was then at Newmarket, returned answer that he would not suffer his prerogative to be wounded, under pretext of the interest of private persons; that it had already been more boldly dealt with in Westminster Hall than in the reigns of preceding princes, which popular and unlawful liberty he would no longer endure; that their oath not to delay justice was not meant to prejudice the king's prerogative; concluding that out of his absolute power and authority royal he commanded them to forbear meddling any further in the cause till they should hear his pleasure from his own mouth. Upon his return to London, the twelve judges appeared as culprits in the council-chamber. The king set forth their misdemeanours, both in substance and in the tone of their letter. He observed that the judges ought to check those advocates who presume to argue against his prerogative; that the popular lawyers had been the men, ever since his accession, who had trodden in all parliaments upon it, though the law could never be respected if the king were not reverenced; that he had a double prerogative--whereof the one was ordinary, and had relation to his private interest, which might be and was every day disputed in Westminster Hall; the other was of a higher nature, referring to his supreme and imperial power and sovereignty, which ought not to be disputed or handled in vulgar argument; but that of late the courts of common law are grown so vast and transcendant, as they did both meddle with the king's prerogative, and had encroached upon all other courts of justice. He commented on the form of the letter, as highly indecent; certifying him merely what they had done, instead of submitting to his princely judgment what they should do. After this harangue the judges fell upon their knees, and acknowledged their error as to the form of the letter. But Coke entered on a defence of the substance, maintaining the delay required to be against the law and their oaths. The king required the chancellor and attorney-general to deliver their opinions; which, as may be supposed, were diametrically opposite to those of the chief justice. These being heard, the following question was put to the judges: Whether, if at any time, in a case depending before the judges, his majesty conceived it to concern him either in power or profit, and thereupon required to consult with them, and that they should stay proceedings in the meantime, they ought not to stay accordingly? They all, except the chief justice, declared that they would do so, and acknowledged it to be their duty; Hobart, chief justice of the common pleas, adding that he would ever trust the justice of his majesty's commandment. But Coke only answered, that when the case should arise, he would do what should be fit for a judge to do. The king dismissed them all with a command to keep the limits of their several courts, and not to suffer his prerogative to be wounded; for he well knew the true and ancient common law to be the most favourable to kings of any law in the world, to which law he advised them to apply their studies.[570] The behaviour of the judges in this inglorious contention was such as to deprive them of every shadow of that confidence which ought to be reposed in their integrity. Hobart, Doddridge, and several more, were men of much consideration for learning; and their authority in ordinary matters of law is still held high. But, having been induced by a sense of duty, or through the ascendancy that Coke had acquired over them, to make a show of withstanding the court, they behaved like cowardly rebels who surrender at the first discharge of cannon; and prostituted their integrity and their fame, through dread of losing their offices, or rather perhaps of incurring the unmerciful and ruinous penalties of the star-chamber. The government had nothing to fear from such recreants; but Coke was suspended from his office, and not long afterwards dismissed.[571] Having however, fortunately in this respect, married his daughter to a brother of the Duke of Buckingham, he was restored in about three years to the privy council, where his great experience in business rendered him useful; and had the satisfaction of voting for an enormous fine on his enemy the Earl of Suffolk, late high-treasurer, convicted in the star-chamber of embezzlement.[572] In the parliament of 1621, and still more conspicuously in that of 1628, he became, not without some honourable inconsistency of doctrine as well as practice, the strenuous asserter of liberty on the principles of those ancient laws which no one was admitted to know so well as himself; redeeming, in an intrepid and patriotic old age, the faults which we cannot avoid perceiving in his earlier life. _Arbitrary proceedings of the star-chamber._--The unconstitutional and usurped authority of the star-chamber over-rode every personal right, though an assembled parliament might assert its general privileges. Several remarkable instances in history illustrate its tyranny and contempt of all known laws and liberties. Two puritans having been committed by the high-commission court, for refusing the oath _ex officio_, employed Mr. Fuller, a bencher of Gray's Inn, to move for their habeas corpus; which he did on the ground that the high commissioners were not empowered to commit any of his majesty's subjects to prison. This being reckoned a heinous offence, he was himself committed, at Bancroft's instigation (whether by the king's personal warrant, or that of the council-board, does not appear), and lay in gaol to the day of his death; the archbishop constantly opposing his discharge for which he petitioned.[573] Whitelock, a barrister and afterwards a judge, was brought before the star-chamber on the charge of having given a private opinion to his client, that a certain commission issued by the Crown was illegal. This was said to be a high contempt and slander of the king's prerogative. But, after a speech from Bacon in aggravation of this offence, the delinquent was discharged on a humble submission.[574] Such too was the fate of a more distinguished person on a still more preposterous accusation. Selden, in his _History of Tithes_, had indirectly weakened the claim of divine right, which the high church faction pretended, and had attacked the argument from prescription, deriving their legal institution from the age of Charlemagne, or even a later æra. Not content with letting loose on him some stanch polemical writers, the bishops prevailed on James to summon the author before the council. This proceeding is as much the disgrace of England, as that against Galileo nearly at the same time is of Italy. Selden, like the great Florentine astronomer, bent to the rod of power, and made rather too submissive an apology for entering on this purely historical discussion.[575] _Arabella Stuart._--Every generous mind must reckon the treatment of Arabella Stuart among the hard measures of despotism, even if it were not also grossly in violation of English law. Exposed by her high descent and ambiguous pretensions to become the victim of ambitious designs wherein she did not participate, that lady may be added to the sad list of royal sufferers who have envied the lot of humble birth. There is not, as I believe, the least particle of evidence that she was engaged in the intrigues of the catholic party to place her on the throne. It was, however, thought a necessary precaution to put her in confinement a short time before the queen's death.[576] At the trial of Raleigh she was present; and Cecil openly acquitted her of any share in the conspiracy.[577] She enjoyed afterwards a pension from the king, and might have died in peace and obscurity, had she not conceived an unhappy attachment for Mr. Seymour, grandson of that Earl of Hertford, himself so memorable an example of the perils of ambitious love. They were privately married; but on the fact transpiring, the council, who saw with jealous eyes the possible union of two dormant pretensions to the Crown, committed them to the Tower.[578] They both made their escape; but Arabella was arrested and brought back. Long and hopeless calamity broke down her mind; imploring in vain the just privileges of an Englishwoman, and nearly in want of necessaries, she died in prison, and in a state of lunacy, some years afterwards.[579] And this through the oppression of a kinsman, whose advocates are always vaunting his good nature! Her husband became the famous Marquis of Hertford, the faithful counsellor of Charles the First and partaker of his adversity. Lady Shrewsbury, aunt to Arabella, was examined on suspicion of being privy to her escape; and for refusing to answer the questions put to her, or, in other words, to accuse herself, was sentenced to a fine of £20,000, and discretionary imprisonment.[580] _Somerset and Overbury._--Several events, so well known that it is hardly necessary to dwell on them, aggravated the king's unpopularity during this parliamentary interval. The murder of Overbury burst into light, and revealed to an indignant nation the king's unworthy favourite, the Earl of Somerset, and the hoary pander of that favourite's vices, the Earl of Northampton, accomplices in that deep-laid and deliberate atrocity. Nor was it only that men so flagitious should have swayed the councils of this country, and rioted in the king's favour. Strange things were whispered, as if the death of Overbury was connected with something that did not yet transpire, and which every effort was employed to conceal. The people, who had already attributed Prince Henry's death to poison, now laid it at the door of Somerset; but for that conjecture, however highly countenanced at the time, there could be no foundation. The symptoms of the prince's illness, and the appearances on dissection, are not such as could result from any poison, and manifestly indicate a malignant fever, aggravated perhaps by injudicious treatment.[581] Yet it is certain that a mystery hangs over this scandalous tale of Overbury's murder. The insolence and menaces of Somerset in the Tower, the shrinking apprehensions of him which the king could not conceal, the pains taken by Bacon to prevent his becoming desperate, and, as I suspect, to mislead the hearers by throwing them on a wrong scent, are very remarkable circumstances to which, after a good deal of attention, I can discover no probable clue. But it is evident that he was master of some secret, which it would have highly prejudiced the king's honour to divulge.[582] _Sir Walter Raleigh._--Sir Walter Raleigh's execution was another stain upon the reputation of James I. It is needless to mention that he fell under a sentence passed fifteen years before, on a charge of high treason, in plotting to raise Arabella Stuart to the throne. It is very probable that this charge was, partly at least, founded in truth;[583] but his conviction was obtained on the single deposition of Lord Cobham, an accomplice, a prisoner, not examined in court, and known to have already retracted his accusation. Such a verdict was thought contrary to law, even in that age of ready convictions. It was a severe measure to detain for twelve years in prison so splendid an ornament of his country, and to confiscate his whole estate.[584] For Raleigh's conduct in the expedition to Guiana, there is not much excuse to make. Rashness and want of foresight were always among his failings; else he would not have undertaken a service of so much hazard without obtaining a regular pardon for his former offence. But it might surely be urged that either his commission was absolutely null, or that it operated as a pardon; since a man attainted of treason is incapable of exercising that authority which it conferred upon him.[585] Be this as it may, no technical reasoning could overcome the moral sense that revolted at carrying the original sentence into execution. Raleigh might be amenable to punishment for the deception, by which he had obtained a commission that ought never to have issued; but the nation could not help seeing in his death the sacrifice of the bravest and most renowned of Englishmen to the vengeance of Spain.[586] This unfortunate predilection for the court of Madrid had always exposed James to his subjects' jealousy. They connected it with an inclination at least to tolerate popery, and with a dereliction of their commercial interests. But from the time that he fixed his hopes on the union of his son with the infanta,[587] the popular dislike to Spain increased in proportion to his blind preference. If the king had not systematically disregarded the public wishes, he could never have set his heart on this impolitic match; contrary to the wiser maxim he had laid down in his own _Basilicon Doron_, never to seek a wife for his son except in a protestant family. But his absurd pride made him despise the uncrowned princes of Germany. This Spanish policy grew much more odious after the memorable events of 1619, the election of the king's son-in-law to the throne of Bohemia, his rapid downfall, and the conquest of the Upper Palatinate by Austria. If James had listened to some sanguine advisers, he would in the first instance have supported the pretensions of Frederic. But neither his own views of public law nor true policy dictated such an interference. The case was changed after the loss of his hereditary dominions, and the king was sincerely desirous to restore him to the Palatinate; but he unreasonably expected that he could effect this through the friendly mediation of Spain, while the nation, not perhaps less unreasonably, were clamorous for his attempting it by force of arms. In this agitation of the public mind, he summoned the parliament that met in February 1621.[588] _Parliament of 1621._--The king's speech on opening the session was, like all he had made on former occasions, full of hopes and promises, taking cheerfully his share of the blame as to past disagreements, and treating them as little likely to recur, though all their causes were still in operation.[589] He displayed, however, more judgment than usual in the commencement of this parliament. Among the methods devised to compensate the want of subsidies, none had been more injurious to the subject than patents of monopoly, including licences for exclusively carrying on certain trades. Though the government was principally responsible for the exactions they connived at, and from which they reaped a large benefit, the popular odium fell of course on the monopolists. Of these the most obnoxious was Sir Giles Mompesson, who, having obtained a patent for gold and silver thread, sold it of baser metal. This fraud seems neither very extraordinary nor very important; but he had another patent for licensing inns and alehouses, wherein he is said to have used extreme violence and oppression. The House of Commons proceeded to investigate Mompesson's delinquency. Conscious that the Crown had withdrawn its protection, he fled beyond sea. One Michell, a justice of peace, who had been the instrument of his tyranny, fell into the hands of the Commons, who voted him incapable of being in the commission of the peace, and sent him to the Tower.[590] Entertaining, however, upon second thoughts, as we must presume, some doubts about their competence to inflict this punishment, especially the former part of it, they took the more prudent course with respect to Mompesson, of appointing Noy and Hakewill to search for precedents in order to show how far and for what offences their power extended to punish delinquents against the state as well as those who offended against that house. The result appears some days after, in a vote that "they must join with the Lords for punishing Sir Giles Mompesson; it being no offence against our particular house, nor any member of it, but a general grievance."[591] The earliest instance of parliamentary impeachment, or of a solemn accusation of any individual by the Commons at the bar of the Lords, was that of Lord Latimer in the year 1376. The latest hitherto was that of the Duke of Suffolk in 1449; for a proceeding against the Bishop of London in 1534, which has sometimes been reckoned an instance of parliamentary impeachment, does not by any means support that privilege of the Commons.[592] It had fallen into disuse, partly from the loss of that control which the Commons had obtained under Richard II. and the Lancastrian kings; and partly from the preference the Tudor princes had given to bills of attainder or of pains and penalties, when they wished to turn the arm of parliament against an obnoxious subject. The revival of this ancient mode of proceeding in the case of Mompesson, though a remarkable event in our constitutional annals, does not appear to have been noticed as an anomaly. It was not indeed conducted according to all the forms of an impeachment. The Commons, requesting a conference with the other house, informed them generally of that person's offence, but did not exhibit any distinct articles at their bar. The Lords took up themselves the inquiry; and having become satisfied of his guilt, sent a message to the Commons, that they were ready to pronounce sentence. The speaker accordingly, attended by all the house, demanded judgment at the bar: when the Lords passed as heavy a sentence as could be awarded for any misdemeanour; to which the king, by a stretch of prerogative, which no one was then inclined to call in question, was pleased to add perpetual banishment.[593] The impeachment of Mompesson was followed up by others against Michell, the associate in his iniquities; against Sir John Bennet, judge of the prerogative court, for corruption in his office; and against Field, Bishop of Landaff, for being concerned in a matter of bribery.[594] The first of these was punished; but the prosecution of Bennet seems to have dropped in consequence of the adjournment, and that of the bishop ended in a slight censure. But the wrath of the Commons was justly roused against that shameless corruption, which characterises the reign of James beyond every other in our history. _Proceedings against Lord Bacon._--It is too well known, how deeply the greatest man of that age was tarnished by the prevailing iniquity. Complaints poured in against the chancellor Bacon for receiving bribes from suitors in his court. Some have vainly endeavoured to discover an excuse which he did not pretend to set up, and even ascribed the prosecution to the malevolence of Sir Edward Coke.[595] But Coke took no prominent share in this business; and though some of the charges against Bacon may not appear very heinous, especially for those times, I know not whether the unanimous conviction of such a man, and the conscious pusillanimity of his defence do not afford a more irresistible presumption of his misconduct than anything specially alleged. He was abandoned by the court, and had previously lost, as I rather suspect, Buckingham's favour; but the king, who had a sense of his transcendent genius, remitted the fine of £40,000 imposed by the Lords, which he was wholly unable to pay.[596] There was much to commend in the severity practised by the house towards public delinquents; such examples being far more likely to prevent the malversation of men in power than any law they could enact. But in the midst of these laudable proceedings, they were hurried by the passions of the moment into an act of most unwarrantable violence. It came to the knowledge of the house that one Floyd, a gentleman confined in the Fleet prison, had used some slighting words about the elector palatine and his wife. It appeared in aggravation, that he was a Roman catholic. Nothing could exceed the fury into which the Commons were thrown by this very insignificant story. A flippant expression, below the cognisance of an ordinary court, grew at once into a portentous offence, which they ransacked their invention to chastise. After sundry novel and monstrous propositions, they fixed upon the most degrading punishment they could devise. Next day, however, the chancellor of the exchequer delivered a message, that the king, thanking them for their zeal, but desiring that it should not transport them to inconveniences, would have them consider whether they could sentence one who did not belong to them, nor had offended against the house or any member of it; and whether they could sentence a denying party, without the oath of witnesses; referring them to an entry on the rolls of parliament in the first year of Henry IV., that the judicial power of parliament does not belong to the Commons. He would have them consider whether it would not be better to leave Floyd to him, who would punish him according to his fault. This message put them into some embarrassment. They had come to a vote in Mompesson's case, in the very words employed in the king's message, confessing themselves to have no jurisdiction, except over offences against themselves. The warm speakers now controverted this proposition with such arguments as they could muster; Coke, though from the reported debates he seems not to have gone the whole length, contending that the house was a court of record, and that it consequently had power to administer an oath.[597] They returned a message by the speaker, excepting to the record in 1 H. 4, because it was not an act of parliament to bind them, and persisting, though with humility, in their first votes.[598] The king replied mildly; urging them to show precedents, which they were manifestly incapable of doing. The Lords requested a conference, which they managed with more temper, and notwithstanding the solicitude displayed by the Commons to maintain their pretended right, succeeded in withdrawing the matter to their own jurisdiction.[599] This conflict of privileges was by no means of service to the unfortunate culprit; the Lords perceived that they could not mitigate the sentence of the lower house without reviving their dispute, and vindicated themselves from all suspicion of indifference towards the cause of the Palatinate by augmenting its severity. Floyd was adjudged to be degraded from his gentility, and to be held an infamous person; his testimony not to be received; to ride from the Fleet to Cheapside on horseback without a saddle, with his face to the horse's tail, and the tail in his hand, and there to stand two hours in the pillory, and to be branded in the forehead with the letter K; to ride four days afterwards in the same manner to Westminster, and there to stand two hours more in the pillory, with words in a paper in his hat showing his offence; to be whipped at the cart's tail from the Fleet to Westminster Hall; to pay a fine of £5000, and to be a prisoner in Newgate during his life. The whipping was a few days after remitted on Prince Charles's motion; but he seems to have undergone the rest of the sentence. There is surely no instance in the annals of our own, and hardly of any civilised country, where a trifling offence, if it were one, has been visited with such outrageous cruelty. The cold-blooded deliberate policy of the Lords is still more disgusting than the wild fury of the lower house.[600] This case of Floyd is an unhappy proof of the disregard that popular assemblies, when inflamed by passion, are ever apt to show for those principles of equity and moderation, by which, however the sophistry of contemporary factions may set them aside, a calm judging posterity will never fail to measure their proceedings. It has contributed at least, along with several others of the same kind, to inspire me with a jealous distrust of that indefinable, uncontrollable privilege of parliament, which has sometimes been asserted, and perhaps with rather too much encouragement from those whose function it is to restrain all exorbitant power. I speak only of the extent to which theoretical principles have been carried, without insinuating that the privileges of the House of Commons have been practically stretched in late times beyond their constitutional bounds. Time and the course of opinion have softened down those high pretensions, which the dangers of liberty under James the First, as well as the natural character of a popular assembly, then taught the Commons to assume; and the greater humanity of modern ages has made us revolt from such disproportionate punishments as were inflicted on Floyd.[601] Everything had hitherto proceeded with harmony between the king and parliament. His ready concurrence in their animadversion on Mompesson and Michell, delinquents who had acted at least with the connivance of government, and in the abolition of monopolies, seemed to remove all discontent. The Commons granted two subsidies early in the session without alloying their bounty with a single complaint of grievances. One might suppose that the subject of impositions had been entirely forgotten, not an allusion to them occurring in any debate.[602] It was voted indeed, in the first days of the session, to petition the king about the breach of their privilege of free speech, by the imprisonment of Sir Edwin Sandys, in 1614, for words spoken in the last parliament; but the house did not prosecute this matter, contenting itself with some explanation by the secretary of state.[603] They were going on with some bills for reformation of abuses, to which the king was willing to accede, when they received an intimation that he expected them to adjourn over the summer. It produced a good deal of dissatisfaction to see their labour so hastily interrupted; especially as they ascribed it to a want of sufficient sympathy on the court's part with their enthusiastic zeal for the elector palatine.[604] They were adjourned by the king's commission, after an unanimous declaration ("sounded forth," says one present, "with the voices of them all, withal lifting up their hats in their hands so high as they could hold them, as a visible testimony of their unanimous consent, in such sort, that the like had scarce ever been seen in parliament") of their resolution to spend their lives and fortunes for the defence of their own religion and of the Palatinate. This solemn protestation and pledge was entered on record in the journals.[605] They met again after five months, without any change in their views of policy. At a conference of the two houses, Lord Digby, by the king's command, explained all that had occurred in his embassy to Germany for the restitution of the Palatinate; which, though absolutely ineffective, was as much as James could reasonably expect without a war.[606] He had in fact, though, according to the laxity of those times, without declaring war on any one, sent a body of troops under Sir Horace Vere, who still defended the Lower Palatinate. It was necessary to vote more money, lest these should mutiny for want of pay. And it was stated to the Commons in this conference, that to maintain a sufficient army in that country for one year would require £900,000; which was left to their consideration.[607] But now it was seen that men's promises to spend their fortunes in a cause not essentially their own are written in the sand. The Commons had no reason perhaps to suspect that the charge of keeping 30,000 men in the heart of Germany would fall much short of the estimate. Yet after long haggling they voted only one subsidy, amounting to £70,000; a sum manifestly insufficient for the first equipment of such a force.[608] This parsimony could hardly be excused by their suspicion of the king's unwillingness to undertake the war, for which it afforded the best justification. _Disagreement between the king and Commons._--James was probably not much displeased at finding so good a pretext for evading a compliance with their martial humour; nor had there been much appearance of dissatisfaction on either side (if we except some murmurs at the commitment of one of their most active members, Sir Edwin Sandys, to the Tower, which were tolerably appeased by the secretary Calvert's declaration that he had not been committed for any parliamentary matter),[609] till the Commons drew up a petition and remonstrance against the growth of popery; suggesting, among other remedies for this grievance, that the prince should marry one of our own religion, and that the king would direct his efforts against the power (meaning Spain) which first maintained the war in the Palatinate. This petition was proposed by Sir Edward Coke. The courtiers opposed it as without precedent; the chancellor of the duchy observing that it was of so high and transcendent a nature, he had never known the like within those walls. Even the mover defended it rather weakly, according to our notions, as intended only to remind the king, but requiring no answer. The scruples affected by the courtiers, and the real novelty of the proposition, had so great an effect, that some words were inserted, declaring that the house "did not mean to press on the king's most undoubted and royal prerogative."[610] The petition, however, had not been presented, when the king, having obtained a copy of it, sent a peremptory letter to the speaker, that he had heard how some fiery and popular spirits had been imboldened to debate and argue on matters far beyond their reach or capacity, and directing him to acquaint the house with his pleasure that none therein should presume to meddle with anything concerning his government or mysteries of state; namely, not to speak of his son's match with the princess of Spain, nor to touch the honour of that king, or any other of his friends and confederates. Sandys's commitment, he bade them be informed, was not for any misdemeanour in parliament. But to put them out of doubt of any question of that nature that may arise among them hereafter, he let them know that he thought himself very free and able to punish any man's misdemeanours in parliament, as well during their sitting as after, which he meant not to spare upon occasion of any man's insolent behaviour in that place. He assured them that he would not deign to hear their petition, if it touched on any of those points which he had forbidden.[611] The house received this message with unanimous firmness, but without any undue warmth. A committee was appointed to draw up a petition, which, in the most decorous language, and with strong professions of regret at his majesty's displeasure, contained a defence of their former proceedings, and hinted very gently, that they could not conceive his honour and safety, or the state of the kingdom, to be matters at any time unfit for their deepest consideration in time of parliament. They adverted more pointedly to that part of the king's message which threatened them for liberty of speech, calling it their ancient and undoubted right, and an inheritance received from their ancestors, which they again prayed him to confirm.[612] His answer, though considerably milder than what he had designed, gave indications of a resentment not yet subdued. He dwelt at length on their unfitness for entering on matters of government, and commented with some asperity even on their present apologetical petition. In the conclusion he observed that "although he could not allow of the style, calling their privileges an undoubted right and inheritance, but could rather have wished that they had said that their privileges were derived from the grace and permission of his ancestors and himself (for most of them had grown from precedent which rather shows a toleration than inheritance); yet he gave them his royal assurance, that as long as they contained themselves within the limits of their duty, he would be as careful to maintain their lawful liberties and privileges as he would his own prerogative; so that their house did not touch on that prerogative which would enforce him or any just king to retrench their privileges."[613] This explicit assertion that the privileges of the Commons existed only by sufferance, and conditionally upon good behaviour, exasperated the house far more than the denial of their right to enter on matters of state. In the one, they were conscious of having somewhat transgressed the boundaries of ordinary precedents; in the other, their individual security, and their very existence as a deliberative assembly, were at stake. Calvert, the secretary, and the other ministers, admitted the king's expressions to be incapable of defence, and called them a slip of the pen at the close of a long answer.[614] The Commons were not to be diverted by any such excuses from their necessary duty of placing on record a solemn claim of right. Nor had a letter from the king, addressed to Calvert, much influence; wherein, while he reiterated his assurances of respecting their privileges, and tacitly withdrew the menace that rendered them precarious, he said that he could not with patience endure his subjects to use such anti-monarchical words to him concerning their liberties, as "ancient and undoubted right and inheritance," without subjoining that they were granted by the grace and favour of his predecessors.[615] After a long and warm debate, they entered on record in the Journals their famous protestation of December 18th, 1621, in the following words:-- "The Commons now assembled in parliament, being justly occasioned thereunto, concerning sundry liberties, franchises, privileges, and jurisdictions of parliament, amongst others not herein mentioned, do make this protestation following:--That the liberties, franchises, privileges, and jurisdictions of parliament are the ancient and undoubted birthright and inheritance of the subjects of England; and that the arduous and urgent affairs concerning the king, state, and the defence of the realm, and of the church of England, and the making and maintenance of laws, and redress of mischiefs and grievances which daily happen within this realm, are proper subjects and matter of counsel and debate in parliament; and that in the handling and proceeding of those businesses, every member of the house hath, and of right ought to have, freedom of speech to propound, treat, reason, and bring to conclusion, the same: that the Commons in parliament have like liberty and freedom to treat of those matters in such order as in their judgments shall seem fittest: and that every such member of the said house hath like freedom from all impeachment, imprisonment, and molestation (other than by the censure of the house itself) for or concerning any bill, speaking, reasoning, or declaring of any matter or matters touching the parliament or parliament business; and that, if any of the said members be complained of, and questioned for anything said or done in parliament, the same is to be showed to the king by the advice and assent of all the Commons assembled in parliament, before the king give credence to any private information."[616] _Dissolution of the Commons, after a strong remonstrance._--This protestation was not likely to pacify the king's anger. He had already pressed the Commons to make an end of the business before them, under pretence of wishing to adjourn them before Christmas, but probably looking to a dissolution. They were not in a temper to regard any business, least of all to grant a subsidy, till this attack on their privileges should be fully retracted. The king therefore adjourned, and in about a fortnight after dissolved them. But in the interval, having sent for the journal book, he erased their last protestation with his own hand; and published a declaration of the causes which had provoked him to this unusual measure, alleging the unfitness of such a protest, after his ample assurance of maintaining their privileges, the irregular manner in which, according to him, it was voted, and its ambiguous and general wording, which might serve in future times to invade most of the prerogatives annexed to the imperial Crown. In his proclamation for dissolving the parliament, James recapitulated all his grounds of offences; but finally required his subjects to take notice that it was his intention to govern them as his progenitors and predecessors had done, and to call a parliament again on the first convenient occasion.[617] He immediately followed up this dissolution of parliament by dealing his vengeance on its most conspicuous leaders: Sir Edward Coke and Sir Robert Philips were committed to the Tower; Mr. Pym, and one or two more, to other prisons; Sir Dudley Digges, and several who were somewhat less obnoxious than the former, were sent on a commission to Ireland, as a sort of honourable banishment.[618] The Earls of Oxford and Southampton underwent an examination before the council; and the former was committed to the Tower on pretence of having spoken words against the king. It is worthy of observation that, in this session, a portion of the upper house had united in opposing the court. Nothing of this kind is noticed in former parliaments, except perhaps a little on the establishment of the reformation. In this minority were considerable names; Essex, Southampton, Warwick, Oxford, Say, Spencer. Whether a sense of public wrongs, or their particular resentments, influenced these noblemen, their opposition must be reckoned an evident sign of the change that was at work in the spirit of the nation, and by which no rank could be wholly unaffected.[619] _Marriage treaty with Spain._--James, with all his reputed pusillanimity, never showed any signs of fearing popular opinion. His obstinate adherence to the marriage treaty with Spain was the height of political rashness in so critical a state of the public mind. But what with elevated notions of his prerogative and of his skill in government on the one hand, what with a confidence in the submissive loyalty of the English on the other, he seems constantly to have fancied that all opposition proceeded from a small troublesome faction, whom if he could any way silence, the rest of his people would at once repose in a dutiful reliance on his wisdom. Hence he met every succeeding parliament with as sanguine hopes as if he had suffered no disappointment in the last. The nation was however wrought up at this time to an alarming pitch of discontent. Libels were in circulation about 1621, so bitterly malignant in their censures of his person and administration, than two hundred years might seem, as we read them, to have been mistaken in their date.[620] Heedless, however, of this growing odium, James continued to solicit the affected coyness of the court of Madrid. The circumstances of that negotiation belong to general history.[621] It is only necessary to remind the reader that the king was induced, during the residence of Prince Charles and the Duke of Buckingham in Spain, to swear to certain private articles, some of which he had already promised before their departure, by which he bound himself to suspend all penal laws affecting the catholics, to permit the exercise of their religion in private houses, and to procure from parliament, if possible, a legal toleration. This toleration, as preliminary to the entire re-establishment of popery, had been the first great object of Spain in the treaty. But that court, having protracted the treaty for years, in order to extort more favourable terms, and interposed a thousand pretences, became the dupe of its own artifices; the resentment of a haughty minion overthrowing with ease the painful fabric of this tedious negotiation. _Parliament of 1624._--Buckingham obtained a transient and unmerited popularity by thus averting a great public mischief, which rendered the next parliament unexpectedly peaceable. The Commons voted three subsidies and three-fifteenths, in value about £300,000;[622] but with a condition, proposed by the king himself, that, in order to ensure its application to naval and military armaments, it should be paid into the hands of treasurers appointed by themselves, who should issue money only on the warrant of the council of war. He seemed anxious to tread back the steps made in the former session, not only referring the highest matters of state to their consideration, but promising not to treat for peace without their advice. They, on the other hand, acknowledged themselves most bound to his majesty for having been pleased to require their humble advice in a case so important, not meaning, we may be sure, by these courteous and loyal expressions, to recede from what they had claimed in the last parliament as their undoubted right.[623] _Impeachment of Middlesex._--The most remarkable affair in this session was the impeachment of the Earl of Middlesex, actually lord treasurer of England, for bribery and other misdemeanours. It is well known that the Prince of Wales and Duke of Buckingham instituted this prosecution to gratify the latter's private pique against the wishes of the king, who warned them they would live to have their fill of parliamentary impeachment. It was conducted by managers on the part of the Commons in a very regular form, except that the depositions of witnesses were merely read by the clerk; that fundamental rule of English law which insists on the _vivâ voce_ examination, being as yet unknown, or dispensed with in political trials. Nothing is more worthy of notice in the proceedings upon this impeachment than what dropped from Sir Edwin Sandys, in speaking upon one of the charges. Middlesex had laid an imposition of £3 per ton on French wines, for taking off which he received a gratuity. Sandys, commenting on this offence, protested in the name of the Commons, that they intended not to question the power of imposing claimed by the king's prerogative: this they touched not upon now; they continued only their claim, and when they should have occasion to dispute it, would do so with all due regard to his majesty's state and revenue.[624] Such cautious and temperate language, far from indicating any disposition to recede from their pretensions, is rather a proof of such united steadiness and discretion as must ensure their success. Middlesex was unanimously convicted by the peers.[625] His impeachment was of the highest moment to the Commons; as it restored for ever that salutary constitutional right which the single precedent of Lord Bacon might have been insufficient to establish against the ministers of the Crown. The two last parliaments had been dissolved without passing a single act, except the subsidy bill of 1621. An interval of legislation for thirteen years was too long for any civilised country. Several statutes were enacted in the present session, but none so material as that for abolishing monopolies for the sale of merchandise, or for using any trade.[626] This is of a declaratory nature, and recites that they are already contrary to the ancient and fundamental laws of the realm. Scarce any difference arose between the Crown and the Commons. This singular calm might probably have been interrupted, had not the king put an end to the session. They expressed some little dissatisfaction at this step,[627] and presented a list of grievances, one only of which is sufficiently considerable to deserve notice; namely, the proclamations already mentioned in restraint of building about London, whereof they complain in very gentle terms, considering their obvious illegality and violation of private right.[628] The Commons had now been engaged, for more than twenty years, in a struggle to restore and to fortify their own and their fellow subjects' liberties. They had obtained in this period but one legislative measure of importance, the late declaratory act against monopolies. But they had rescued from disuse their ancient right of impeachment. They had placed on record a protestation of their claim to debate all matters of public concern. They had remonstrated against the usurped prerogatives of binding the subject by proclamation, and of levying customs at the out-ports. They had secured beyond controversy their exclusive privilege of determining contested elections of their members. They had maintained, and carried indeed to an unwarrantable extent, their power of judging and inflicting punishment, even for offences not committed against their house. Of these advantages some were evidently incomplete; and it would require the most vigorous exertions of future parliaments to realise them. But such exertions the increased energy of the nation gave abundant cause to anticipate. A deep and lasting love of freedom had taken hold of every class except perhaps the clergy; from which, when viewed together with the rash pride of the court, and the uncertainty of constitutional principles and precedents, collected through our long and various history, a calm by-stander might presage that the ensuing reign would not pass without disturbance, nor perhaps end without confusion. FOOTNOTES: [464] Father Persons, a subtle and lying Jesuit, published in 1594, under the name of Doleman, a treatise entitled _Conference about the next Succession to the Crown of England_. This book is dedicated to Lord Essex, whether from any hopes entertained of him, or as was then supposed, in order to injure his fame and his credit with the queen. _Sidney Papers_, i. 357; Birch's _Memoirs_, i. 313. It is written with much art, to show the extreme uncertainty of the succession, and to perplex men's minds by multiplying the number of competitors. This, however, is but the second part of his _Conference_, the aim of the first being to prove the right of commonwealths to depose sovereigns, much more to exclude the right heir, especially for want of true religion. "I affirm and hold," he says, "that for any man to give his help, consent, or assistance towards the making of a king whom he judgeth or believeth to be faulty in religion, and consequently would advance either no religion, or the wrong, if he were in authority, is a most grievous and damnable sin to him that doth it, of what side soever the truth be, or how good or bad soever the party be that is preferred."--P. 216. He pretends to have found very few who favour the King of Scots' title; an assertion by which we may appreciate his veracity. The protestant party, he tells us, was wont to favour the house of Hertford, but of late have gone more towards Arabella, whose claim the Lord Burleigh is supposed to countenance. P. 241. The drift of the whole is to recommend the infanta, by means of perverted history and bad law, yet ingeniously contrived to ensnare ignorant persons. In his former and more celebrated treatise, _Leicester's Commonwealth_, though he harps much on the embarrassments attending the succession, Persons argues with all his power in favour of the Scottish title, Mary being still alive, and James's return to the faith not desperate. Both these works are full of the mendacity generally and justly ascribed to his order; yet they are worthy to be read by any one who is curious about the secret politics of the queen's reign. Philip II. held out assurances, that if the English would aid him in dethroning Elizabeth, a free parliament should elect any catholic sovereign at their pleasure, not doubting that their choice would fall on the infanta. He promised also to enlarge the privileges of the people, to give the merchants a free trade to the Indies, with many other flattering inducements. Birch's _Memoirs_, ii. 308. But most of the catholic gentry, it is just to observe, would never concur in the invasion of the kingdom by foreigners, preferring the elevation of Arabella, according to the pope's project. This difference of opinion gave rise, among other causes, to the violent dissensions of that party in the latter years of Elizabeth's reign; dissensions that began soon after the death of Mary, in favour of whom they were all united, though they could never afterwards agree on any project for the succession. Winwood's _Memorials_, i. 57; _Lettres du Cardinal d'Ossat_, ii. 501. For the life and character of the famous Father Persons, or Parsons, above mentioned, see Dodd's _Church History_, the _Biographia Britannica_, or Miss Aikin's _James I._, i. 360. Mr. Butler is too favourably inclined towards a man without patriotism or veracity. Dodd plainly thinks worse of him than he dares speak. [465] D'Ossat, _ubi suprà_. Clement had, some years before, indulged the idle hope that France and Spain might unite to conquer England, and either bestow the kingdom on some catholic prince or divide it between themselves, as Louis XII. and Ferdinand had done with Naples in 1501; an example not very inviting to the French. D'Ossat, Henry's minister at Rome, pointed out the difficulties of such an enterprise, England being the greatest naval power in the world, and the people warlike. The pope only replied, that the kingdom had been once conquered, and might be so again; and especially being governed by an old woman, whom he was ignorant enough to compare with Joanna II. of Naples. Vol. i. 399. Henry IV. would not even encourage the project of setting up Arabella, which he declared to be both unjust and chimerical. _Mem. de Sully_, l. 15. A knot of protestants were also busy about the interests of Arabella, or suspected of being so; Raleigh, Cobham, Northumberland, though perhaps the last was catholic. Their intrigues occupy a great part of the letters of other intriguers, Cecil and Lord Henry Howard, in the _Secret Correspondence with King James_, published by Sir David Dalrymple, vol. i. _passim_. [466] The explicit declaration on her death-bed ascribed to her by Hume and most other writers, that her kingsman the King of Scots should succeed her, is not confirmed by Carey, who was there at the time. "She was speechless when the council proposed the King of Scots to succeed her, but put her hand to her head as if in token of approbation." E. of Monmouth's _Memoirs_, p. 176. But her uniform conduct shows her intentions. See, however, D'Israeli's _Curiosities of Literature_, iii. 107. It is impossible to justify Elizabeth's conduct towards James in his own kingdom. What is best to be said for it is, that his indiscretion, his suspicious intrigues at Rome and Madrid, the dangerous influence of his favourites, and the evident purpose of the court of Spain to make him its tool, rendered it necessary to keep a very strict watch over his proceedings. If she excited the peers and presbyters of Scotland against their king, he was not behind her in some of the last years of her reign. It appears by a letter from the Earl of Mar, in Dalrymple's _Secret Correspondence_, p. 2, that James had hopes of a rebellion in England in 1601, which he would have had no scruple in abetting. And a letter from him to Tyrone, in the Lansdowne MSS. lxxxiv. 36, dated 22nd Dec. 1597, when the latter was at least preparing for rebellion, though rather cautious, is full of expressions of favour, and of promises to receive his assistance thankfully at the queen's death. This letter being found in the collection once belonging to Sir Michael Hicks, must have been in Lord Burleigh's, and probably in Elizabeth's hands; it would not make her less inclined to instigate conspiracies across the Tweed. The letter is not an original, and may have been communicated by some one about the King of Scots in the pay of England. [467] See Burnet, vol. i, Appendix 267, for Secretary Lethington's letter to Cecil, where he tells a circumstantial story so positively, and so open, if false, to a contradiction it never received, that those who lay too much stress on this very equivocal species of presumption would, if the will had perished, have reckoned its forgery beyond question. The king's death approaching, he asserts, "some as well known to you as to me caused William Clarke, sometimes servant to Thomas Heneage, to sign the supposed will with a stamp, for otherwise signed it was never;" for which he appeals to an attestation of the late Lord Paget in parliament, and requests the depositions of several persons now living to be taken. He proceeds to refer him "to the original will surmised to be signed with the king's own hand, that thereby it may most clearly and evidently appear by some differences, how the same was not signed with the king's hand, but stamped as aforesaid. And albeit it is used both as an argument and calumniation against my sovereign by some, that the said original hath been embezzled in Queen Mary's time, I trust God will and hath reserved the same to be an instrument to relieve [prove] the truth, and to confound false surmises, that thereby the right may take place, notwithstanding the many exemplifications and transcripts, which being sealed with the great seal, do run abroad in England." Lesley, Bishop of Ross, repeats the same story with some additions. Bedford's _Hereditary Right_, p. 197. A treatise of Hales, for which he suffered imprisonment, in defence of the Suffolk title under the will, of which there is a manuscript in the British Museum, Harl. MSS. 537, and which is also printed in the appendix to the book last quoted, leads me to conjecture that the original will had been mislaid or rather concealed at that time. For he certainly argues on the supposition that it was not forthcoming, and had not himself seen it; but "he has been informed that the king's name is evidently written with a pen, though some of the strokes are unseen, as if drawn by a weak and trembling hand." Everyone who has seen the will must bear witness to the correctness of this information. The reappearance of this very remarkable instrument was, as I conceive, after the Revolution; for Collier mentions that he had heard it was in existence; and it is also described in a note to the _Acta Regia_. [468] It is right to mention, that some difference of opinion exists as to the genuineness of Henry's signature. But as it is attested by many witnesses, and cannot be proved a forgery, the legal presumption turns much in its favour. [469] Bedford's (Harbin's) _Hereditary Right Asserted_, p. 204. [470] A manuscript in the Cottonian library, Faustina A. xi., written about 1562 in a very hostile spirit, endeavours to prove from the want of testimony, and from some variances in their depositions (not very material ones), that their allegations of matrimony could not be admitted, and that they had incurred an ecclesiastical censure for fornication. But another, which I have also found in the Museum, Harl. MSS. 6286, contains the whole proceedings and evidence, from which I have drawn the conclusion in the text. Their ignorance of the clergyman who performed the ceremony is not perhaps very extraordinary; he seems to have been one of those vagabond ecclesiastics, who, till the marriage act of 1752, were always ready to do that service for a fee. [471] "Hereupon I shall add, what I have heard related from persons of great credit, which is, that the validity of this marriage was afterwards brought to a trial at the common law; when the minister who married them being present, and other circumstances agreeing, the jury (whereof John Digby of Coleshill, in com. War. esquire, was the foreman) found it a good marriage." _Baronage of England_, part ii. 369. Mr. Luders doubts the accuracy of Dugdale's story; and I think it not unlikely that it is a confused account of what happened in the court of wards. [472] I derive this fact from a Cotton MS. Vitellius C. xvi. 412, etc.; but the volume is much burned, and the papers confused with others relative to Lord Essex's divorce. See as to the same suit, or rather perhaps that mentioned in the next note, Birch's _Negotiations_, p. 219, or Aikin's _James I._ i. 225. [473] "The same day a great cause between the Lord Beauchamp and Monteagle was heard in the court of wards, the main point whereof was to prove the lawfulness of E. of Hertford's marriage. The court sat until five of the clock in the afternoon, and the jury had a week's respite for the delivery of their verdict." Letter of Sir E. Hoby to Sir T. Edmonds, Feb. 10, 1606. "For my lord of Hertford's cause, when the verdict was ready to be given up, Mr. Attorney interposed himself for the king, and said that the land that they both strove for was the king's, and until his title were decided, the jury ought not to proceed; not doubting but the king will be gracious to both lords. But thereby both land and legitimation remain undecided." The same to the same March 7. Sloane MSS. 4176. [474] Dugdale's _Baronage_; Luders' _Essay on the Right of Succession to the Crown in the Reign of Elizabeth_. This ingenious author is, I believe, the first who has taken the strong position as to the want of legal title to the house of Stuart which I have endeavoured to support. In the entertaining letters of Joseph Mede on the news of the day (Harl. MSS. 389), it is said that the king had thoughts of declaring Hertford's issue by Lady Catherine Grey illegitimate in the parliament of 1621, and that Lord Southampton's commitment was for having searched for proofs of their marriage. June 30, 1622. [475] Luders, _ubi suprà_. [476] The representative of the title of Mary Brandon, Duchess of Suffolk, that is, the person on whom the claim has descended, according to the rules which determine the succession of the crown, on the supposition that Hertford was duly married to Catherine Grey, is the present Duchess of Buckingham; upon the contrary supposition, the Marquis of Stafford. This is, of course, if we may take for granted the accuracy of common books of genealogy. I have not adverted to one objection which some urged at the time, as we find by Persons's treatises, _Leicester's Commonwealth_, and the _Conference_, to the legitimacy of the Seymours. Catherine Grey had been betrothed, or perhaps married, to Lord Herbert, son of the Earl of Pembroke, during the brilliant days of her family, at the close of Edward's reign. But on her father's fall Pembroke caused a sentence of divorce to be pronounced, the grounds of which do not appear, but which was probably sufficient in law to warrant her subsequent union with Hertford. No advantage is taken of this in the proceedings, which seems to show that there was no legal bond remaining between the parties. Camden says she was divorced from Lord Herbert, "being so far gone with child, as to be very near her time." But from her youth at the time, and the silence of all other writers, I conclude this to be unworthy of credit. [477] Bolingbroke is of this opinion; considering the act of recognition as "the æra of hereditary right, and of all those exalted notions concerning the power of prerogative of kings and the sacredness of their persons." _Dissertation on Parties_, Letter II. [478] Stat. 1 Jac. c. 1. [479] This is confirmed by a curious little tract in the British Museum, Sloane MSS. 827, containing a short history of the queen's death, and new king's accession. It affords a good contemporary illustration of the various feelings which influenced men at this crisis, and is written in a dispassionate manner. The author ascribes the loss of Elizabeth's popularity to the impoverishment of the realm, and to the abuses which prevailed. Carte says, "foreigners were shocked on James's arrival at the applause of the populace who had professed to adore the late queen, but in fact she had no huzzas after Essex's execution. She was in four days' time as much forgot as if she had never existed, by all the world, and even by her own servants." Vol. iii. p. 707. This is exaggerated, and what Carte could not know; but there is no doubt that the generality were glad of a change. [480] Carte, no foe surely to the house of Stuart, says: "By the time he reached London, the admiration of the intelligent world was turned into contempt." On this journey he gave a remarkable proof of his hasty temper and disregard of law, in ordering a pickpocket taken in the fact to be hanged without trial. The historian last quoted thinks fit to say in vindication, that "all felonies committed within the verge of the court are cognizable in the court of the king's household," referring to 33 H. 8, c. i. This act, however, contains no such thing; nor does any court appear to have been held. Though the man's notorious guilt might prevent any open complaint of so illegal a proceeding, it did not fail to excite observation. "I hear our new king," says Sir John Harrington, "has hanged one man before he was tried; it is strangely done: now if the wind bloweth thus, why may not a man be tried before he has offended?" _Nugæ Antiquæ_, vol. i. p. 180. Birch and Carte tell us, on the authority of the French ambassador's despatches, that on this journey he expressed a great contempt for women, suffering them to be presented on their knees, and indiscreetly censuring his own wife; that he offended the military men by telling them they might sheathe their swords, since peace was his object; that he showed impatience of the common people who flocked to see him while hunting, driving them away with curses, very unlike the affable manners of the late queen. This is confirmed by Wilson, in Kennet's _Complete History_, vol. ii. p. 667. [481] Sully, being sent over to compliment James on his accession, persisted in wearing mourning for Elizabeth, though no one had done so in the king's presence, and he was warned that it would be taken ill; "dans une cour où il sembloit qu'on eût si fort affecté de mettre en oubli cette grande reine qu'on n'y faisoit jamais mention d'elle, et qu'on évitoit même de prononcer son nom." _Mém. de Sully_, l. 14. James afterwards spoke slightingly to Sully of his predecessor, and said that he had long ruled England through her ministers. [482] It was subscribed by 825 ministers from twenty-five counties. It states, that neither as factious men desiring a popular party in the church, nor as schismatics aiming at the dissolution of the state ecclesiastical, they humbly desired the redress of some abuses. Their objections were chiefly to the cap and surplice, the cross in baptism, baptism by women, confirmation, the ring in marriage, the reading of the Apocrypha, bowing at the name of Jesus, etc.; to non-residence and incapable ministers, the commendams held by bishops, unnecessary excommunications, and other usual topics. Neal, p. 408; Fuller, part ii. p. 22. [483] The puritans seem to have flattered themselves that James would favour their sect, on the credit of some strong assertions he had occasionally made of his adherence to the Scots kirk. Some of these were a good while before; but on quitting the kingdom he had declared that he left it in a state which he did not intend to alter. Neal, 406. James, however, was all his life rather a bold liar than a good dissembler. It seems strange that they should not have attended to his _Basilicon Doron_, printed three years before, though not for general circulation, wherein there is a passage quite decisive of his disposition towards the presbyterians and their scheme of polity. The Millenary Petition indeed did not go so far as to request anything of that kind. [484] Strype's _Whitgift_, p. 571; Collier, p. 675; Neal, p. 411; Fuller, part ii. p. 7.; _State Trials_, vol. ii. p. 69; _Phoenix Britannicus_, i. 141; Winwood, ii. 13. All these, except the last, are taken from an account of the conference published by Barlow, and probably more favourable to the king and bishops than they deserved. See what Harrington, an eye-witness, says in _Nugæ Antiquæ_, i. 181, which I would quote as the best evidence of James's behaviour, were the passage quite decent. [485] Reynolds, the principal disputant on the puritan side, was nearly, if not altogether, the most learned man in England. He was censured by his faction for making a weak defence; but the king's partiality and intemperance plead his apology. He is said to have complained of unfair representation in Barlow's account. _Hist. and Ant. of Oxford_, ii. 293. James wrote a conceited letter to one Blake, boasting of his own superior logic and learning. Strype's _Whitgift_, Append. 239. [486] Rymer, xvi. 565. [487] Strype's _Whitgift_, 587. How desirous men not at all connected in faction with the puritans were of amendments in the church, appears by a tract of Bacon, written, as it seems, about the end of 1603, vol. i. p. 387.--He excepts to several matters of ceremony; the cap and surplice, the ring in marriage, the use of organs, the form of absolution, lay-baptism, etc.; and inveighs against the abuse of excommunication, against non-residence and pluralities, the oath _ex officio_, the sole exercise of ordination and jurisdiction by the bishop, conceiving that the dean and chapter should always assent, etc. And, in his predominant spirit of improvement, asks, "Why the civil state should be purged and restored by good and wholesome laws made every three or four years in parliament assembled, devising remedies as fast as time breedeth mischief; and contrariwise the ecclesiastical state should still continue upon the dregs of time, and receive no alteration now for these forty-five years or more?" [488] _Id. ibid._ [489] Neal, 432; Winwood, ii. 36. [490] See one of the _Somers Tracts_, vol. ii. p. 144, entitled "Advertisements of a Loyal Subject, drawn from the Observation of the People's Speeches." This appears to have been written before the meeting of parliament. The French ambassadors, Sully and La Boderie, thought most contemptibly of the king. Lingard, vol. ix. p. 107. His own courtiers, as their private letters show, disliked and derided him. [491] King James's Works, p. 207. [492] _Parl. Hist._ i. 967. [493] Commons' Journals, i. 166. [494] It appears that some of the more eager patriots were dissatisfied at the concession made by vacating Goodwin's seat, and said they had drawn on themselves the reproach of inconstancy and levity. "But the acclamation of the house was, that it was a testimony of our duty, and no levity." It was thought expedient, however, to save their honour, that Goodwin should send a letter to the speaker expressing his acquiescence. P. 168. [495] Commons' Journals, 147, etc.; _Parl. Hist._ 997; Carte, iii. 730, who gives, on this occasion, a review of the earlier cases where the house had entered on matters of election. See also a rather curious letter of Cecil in Winwood's _Memorials_, ii. 18, where he artfully endeavours to treat the matter as of little importance. [496] Commons' Journals, page 155, etc.; _Parl. Hist._ 1028; Carte, 734. [497] 1 Jac. i. c. 13. [498] By one of these canons, all persons affirming any of the thirty-nine articles to be erroneous are excommunicated _ipso facto_; consequently become incapable of being witnesses, of suing for their debts, etc. Neal, 428. But the courts of law disregarded these _ipso facto_ excommunications. [499] _Somers Tracts_, ii. 14; Journals, 199, 235, 238; _Parl. Hist._ 1067. It is here said, that a bill restraining excommunications passed into a law, which does not appear to be true, though James himself had objected to their frequency. I cannot trace such a bill in the journals beyond the committee, nor is it in the statute-book. The fact is, that the king desired the house to confer on the subject with the convocation, which they justly deemed unprecedented, and derogatory to their privileges; but offered to confer with the bishops, as lords of parliament. Journals, 173. [500] Bacon's Works, i. 624; Journals, 190, 215. [501] Commons' Journals, 150, etc. [502] Journals, 246. [503] Journals, 230. [504] _Parl. Hist._ 1030, from Petyt's _Jus Parliamentarium_, the earliest book, as far as I know, where this important document is preserved. The entry on the Journals, p. 243, contains only the first paragraph. Hume and Carte have been ignorant of it. It is just alluded to by Rapin. It is remarked that the attendance of members in this session was more frequent than had ever been known, so that fresh seats were required. Journals, 141. [505] "My faithful 3, such is now my misfortune, as I must be for this time secretary to the devil in answering your letters directed unto him. That the entering now into the matter of the subsidy should be deferred until the council's next meeting with me, I think no ways convenient, especially for three reasons. First, ye see it has bin already longest delayd of anything, and yet yee see the lower house are ever the longer the further from it; and (as in everything that concerns mee) delay of time does never turn them towards mee, but, by the contrary, every hour breedeth a new trick of contradiction amongst them, and every day produces new matter of sedition, so fertile are their brains in ever buttering forth venome. Next, the Parlt. is now so very near an end, as this matter can suffer no longer delay. And thirdly, if this be not granted unto before they receive my answer unto their petition, it needs never to be moved, for the will of man or angel cannot devise a pleasing answer to their proposition, except I should pull the crown not only from my own head, but also from the head of all those that shall succeed unto mee, and lay it down at their feet. And that freedom of uttering my thoughts, which no extremity, strait nor peril of my life could ever bereave mee of in time past, shall now remain with me, as long as the soul shall with the body. And as for the Reservations of the Bill of Tonnage and Poundage, yee of the Upper House must out of your Love and Discretion help it again or otherwise they will in this, as in all things else that concern mee, wrack both me and all my Posterity. Yee may impart this to little 10 and bigg Suffolk. And so Farewell from my Wildernesse, wch I had rather live in (as God shall judge mee) like an Hermite in this Forrest, then be a King over such a People as the pack of Puritans are that over-rules the lower house. J. R." MS. penes autorem. I cannot tell who is addressed in this letter by the numeral 3; perhaps the Earl of Dunbar. By 10 we must doubtless understand Salisbury. [506] _Parl. Hist. Journals_, 274, 278, etc. In a conference with the Lords on this bill, Mr. Hare, a member, spoke so warmly, as to give their lordships offence, and to incur some reprehension. "You would have thought," says Sir Thomas Hoby, in a manuscript letter in the Museum, Sloane MSS. 4161, "that Hare and Hyde represented two tribunes of the people." But the Commons resented this infringement on their privileges, and after voting that Mr. Hare did not err in his employment in the committee with the Lords, sent a message to inform the other house of their vote, and to request that they "would forbear hereafter any taxations and reprehensions in their conferences." Journals, 20th and 22nd Feb. [507] Journals, 316. An acute historical critic doubts whether James aimed at an union of legislatures, though suggested by Bacon. Laing's _Hist. of Scotland_, iii. 17. It is certain that his own speeches on the subject do not mention this; nor do I know that it was ever distinctly brought forward by the government; yet it is hard to see how the incorporation could have been complete without it. Bacon not only contemplates the formation of a single parliament, but the alterations necessary to give it effect (vol. i. p. 638), suggesting that the previous commission of lords of articles might be adopted for some, though not for all purposes. This of itself was a sufficient justification for the dilatoriness of the English parliament. Nor were the common lawyers who sat in the house much better pleased with Bacon's schemes for remodelling all our laws. See his speech (vol. i. p. 654) for naturalising the ante-nati. In this he asserts the kingdom not to be fully peopled; "the territories of France, Italy, Flanders, and some parts of Germany, do in equal space of ground bear and contain a far greater quantity of people, if they were mustered by the poll;" and even goes on to assert the population to have been more considerable under the heptarchy. [508] It was held by twelve judges out of fourteen, in Calvin's case, that the post-nati, or Scots born after the king's accession, were natural subjects of the King of England. This is laid down, and irresistibly demonstrated, by Coke, then chief justice, with his abundant legal learning. _State Trials_, vol. ii. 559. It may be observed, that the high-flying creed of prerogative mingled itself intimately with this question of naturalisation; which was much argued on the monarchical principle of personal allegiance to the sovereign, as opposed to the half-republican theory that lurked in the contrary proposition. "Allegiance," says Lord Bacon, "is of a greater extent and dimension than laws or kingdoms, and cannot consist by the laws merely, because it began before laws; it continueth after laws, and it is in vigour when laws are suspended and have not had their force." _Id._ 596. So Lord Coke: "Whatsoever is due by the law or constitution of man may be altered; but natural legiance or obedience of the subject to the sovereign cannot be altered; ergo, natural legiance or obedience to the sovereign is not due by the law or constitution of man."--652. There are many doubtful positions scattered through the judgment in this famous case. Its surest basis is the long series of precedents, evincing that the natives of Jersey, Guernsey, Calais, and even Normandy and Guienne, while these countries appertained to the kings of England, though not in right of its crown, were never reputed aliens. [509] The house had lately expelled Sir Christopher Pigott for reflecting on the Scots nation in a speech. Journals, 13th Feb. 1607. [510] Commons' Journals, 366. The journals are full of notes of these long discussions about the union in 1604, 1606, 1607, and even 1610. It is easy to perceive a jealousy that the prerogative by some means or other would be the gainer. The very change of name to Great Britain was objected to. One said, we cannot legislate for Great Britain. P. 186. Another, with more astonishing sagacity, feared that the king might succeed, by what the lawyers call _remitter_, to the prerogatives of the British kings before Julius Cæsar, which would supersede Magna Charta. P. 185. James took the title of King of Great Britain in the second year of his reign. Lord Bacon drew a well-written proclamation on that occasion. Bacon, i. 621; Rymer, xvi. 603. But it was, not long afterwards, abandoned. [511] Commons' Journals, p. 370. [512] P. 377. [513] Commons' Journals, p. 384. [514] James entertained the strange notion that the war with Spain ceased by his accession to the throne. By a proclamation dated 23rd June 1603, he permits his subjects to keep such ships as had been captured by them before the 24th April, but orders all taken since to be restored to the owners. Rymer, xvi. 516. He had been used to call the Dutch rebels, and was probably kept with difficulty by Cecil from displaying his partiality still more outrageously. Carte, iii. 714. All the council, except this minister, are said to have been favourable to peace. _Id._ 938. [515] Winwood, vol. ii. 100, 152, etc.; Birch's _Negotiations of Edmondes_. If we may believe Sir Charles Cornwallis, our ambassador at Madrid, "England never lost such an opportunity of winning honour and wealth, as by relinquishing the war." The Spaniards were astonished how peace could have been obtained on such advantageous conditions. Winwood, p. 75. [516] Bacon, i. 663; Journals, p. 341. Carte says, on the authority of the French ambassador's despatches, that the ministry secretly put forward this petition of the Commons in order to frighten the Spanish court into making compensation to the merchants, wherein they succeeded. iii. 766. This is rendered very improbable by Salisbury's behaviour. It was Carte's mistake to rely too much on the despatches he was permitted to read in the Dépôt des Affaires Etrangères; as if an ambassador were not liable to be deceived by rumours in a country of which he has in general too little knowledge to correct them. [517] There was a duty on wool, woolfells, and leather, called magna, or sometimes antiqua custuma, which is said in Dyer to have been by prescription, and by the barons in Bates's case to have been imposed by the king's prerogative. As this existed before the 25th Edward I., it is not very material whether it were so imposed, or granted by parliament. During the discussion, however, which took place in 1610, a record was discovered of 3 Edw. I. proving it to have been granted par tous les grauntz del realme, par la prière des comunes des marchants de tout Engleterre. Hale, 146. The prisage of wines, or duty of two tons from every vessel, is considerably more ancient; but how the Crown came by this right does not appear. [518] Dyer, fol. 165. An argument of the great lawyer Plowden in this case of the queen's increasing the duty on cloths is in the British Museum, Hargrave MSS. 32, and seems, as far as the difficult handwriting permitted me to judge, adverse to the prerogative. [519] This case I have had the good fortune to discover in one of Mr. Hargrave's MSS. in the Museum, 132, fol. 66. It is in the handwriting of Chief Justice Hyde (temp. Car. I.), who has written in the margin: "This is the report of a case in my lord Dyer's written original, but is not in the printed books." The reader will judge for himself why it was omitted, and why the entry of the former case breaks off so abruptly. "Philip and Mary granted to the town of Southampton that all malmsy wines should be landed at that port under penalty of paying treble custom. Some merchants of Venice having landed wines elsewhere, an information was brought against them in the exchequer (1 Eliz.), and argued several times in the presence of all the judges. Eight were of opinion against the letters patent, among whom Dyer and Catlin, chief justices, as well for the principal matter of restraint in the landing of malmsies at the will and pleasure of the merchants, for that it was against the laws, statutes, and customs of the realm (Magna Charta, c. 30; 9 E. 3; 14 E. 3; 25 E. 3, c. 2; 27 E. 3; 28 E. 3; 2 R. 2, c. 1, and others), as also in the assessment of treble custom, _which is merely against the law_; also the prohibition above said was held to be private, and not public. But Baron Lake _e contra_, and Browne J. _censuit deliberandum_. And after, at an after meeting the same Easter term at Serjeants' Inn, it was resolved as above. And after by parliament (5 Eliz.) the patent was confirmed and affirmed against aliens." [520] Bacon, i. 521. [521] Hale's _Treatise on the Customs_, part 3; in Hargrave's _Collection of Law Tracts_. See also the preface by Hargrave to Bates's case, in the _State Trials_, where this most important question is learnedly argued. [522] He had previously published letters patent, setting a duty of six shillings and eight-pence a pound, in addition to two-pence already payable, on tobacco; intended no doubt to operate as a prohibition of a drug he so much hated. Rymer, xvi. 602. [523] _State Trials_, ii. 371. [524] Hale's _Treatise on the Customs_. These were perpetual, "to be for ever hereafter paid to the king and his successors, on pain of his displeasure." _State Trials_, 481. [525] Journals, 295, 297. [526] Mr. Hakewill's speech, though long, will repay the diligent reader's trouble, as being a very luminous and masterly statement of this great argument. _State Trials_, ii. 407. The extreme inferiority of Bacon, who sustained the cause of prerogative, must be apparent to every one. _Id._ 345. Sir John Davis makes somewhat a better defence; his argument is, that the king may lay an embargo on trade, so as to prevent it entirely, and consequently may annex conditions to it. _Id._ 399. But to this it was answered, that the king can only lay a temporary embargo, for the sake of some public good, not prohibit foreign trade altogether. As to the king's prerogative of restraining foreign trade, see extracts from Hale's MS. Treatise de Jure Coronæ, in Hargrave's Preface to _Collection of Law Tracts_, p. xxx. etc. It seems to have been chiefly as to exportation of corn. [527] Aikin's _Memoirs of James I._ i. 350. This speech justly gave offence. "The 21st of this present (May 1610)," says a correspondent of Sir Ralph Winwood, "he made another speech to both the houses, but so little to their satisfaction that I hear it bred generally much discomfort to see our monarchical power and royal prerogative strained so high, and made so transcendent every way, that if the practice should follow the positions, we are not likely to leave to our successors that freedom we received from our forefathers; nor make account of anything we have, longer than they list that govern." Winwood, iii. 175. The traces of this discontent appear in short notes of the debate. Journals, p. 430. [528] Journals, 431. [529] _Somers Tracts_, vol. ii. 159; in the Journals much shorter. [530] These canons were published in 1690 from a copy belonging to Bishop Overall, with Sancroft's imprimatur. The title-page runs in an odd expression: "Bishop Overall's Convocation-Book concerning the Government of God's Catholic Church and the Kingdoms of the whole World." The second canon is as follows: "If any man shall affirm that men at the first ran up and down in woods and fields, etc., until they were taught by experience the necessity of government; and that therefore they chose some among themselves to order and rule the rest, giving them power and authority so to do; and that consequently all civil power, jurisdiction, and authority, was first derived from the people and disordered multitude, or either is originally still in them, or else is deduced by their consent naturally from them, and is not God's ordinance, originally descending from him and depending upon him, he doth greatly err."--P. 3. [531] Coke's 2nd Institute, 601; Collier, 688; _State Trials_, ii. 131. See too an angry letter of Bancroft, written about 1611 (Strype's _Life of Whitgift_, Append. 227), wherein he inveighs against the common lawyers and the parliament. [532] Cowell's _Interpreter, or Law Dictionary_; edit. 1607. These passages are expunged in the later editions of this useful book. What the author says of the writ of prohibition, and the statutes of præmunire, under these words, was very invidious towards the common lawyers, treating such restraints upon the ecclesiastical jurisdiction as necessary in former ages, but now become useless since the annexation of the supremacy of the Crown. [533] Commons' Journals, 339, and afterwards to 415. The authors of the _Parliamentary History_ say there is no further mention of the business after the conference, overlooking the most important circumstance, the king's proclamation suppressing the book, which yet is mentioned by Rapin and Carte, though the latter makes a false and disingenuous excuse for Cowell. Vol. iii. p. 798. Several passages concerning this affair occur in Winwood's _Memorials_, to which I refer the curious reader. Vol. iii. p. 125, 129, 131, 136, 137, 145. [534] Winwood, iii. 123. [535] _Somers Tracts_, ii. 162; _State Trials_, ii. 519. [536] The court of the council of Wales was erected by statute 34 H. 8, c. 26, for that principality and its marches, with authority to determine such causes and matters as should be assigned to them by the king, "as heretofore hath been accustomed and used;" which implies a previous existence of some such jurisdiction. It was pretended, that the four counties of Hereford, Worcester, Gloucester, and Salop were included within their authority, as marches of Wales. This was controverted in the reign of James by the inhabitants of these counties, and on reference to the twelve judges, according to Lord Coke, it was resolved that they were ancient English shires, and not within the jurisdiction of the council of Wales; "and yet," he subjoins, "the commission was not after reformed in all points as it ought to have been." Fourth Inst. 242. An elaborate argument in defence of the jurisdiction may be found in Bacon, ii. 122. And there are many papers on this subject in Cotton MSS. Vitellius, C. i. The complaints of this enactment had begun in the time of Elizabeth. It was alleged that the four counties had been reduced from a very disorderly state to tranquillity by means of the council's jurisdiction. But, if this were true, it did not furnish a reason for continuing to exclude them from the general privileges of the common law, after the necessity had ceased. The king, however, was determined not to concede this point. Carte, iii. 794. [537] Commons' Journals for 1610, _passim_; Lords' Journals, 7th May, _et post_; _Parl. Hist._ 1124, _et post_; Bacon, i. 676; Winwood, iii. 119, _et post_. [538] It appears by a letter of the king, in Murden's _State Papers_, p. 813, that some indecent allusions to himself in the House of Commons had irritated him. "Wherein we have misbehaved ourselves, we know not, nor we can never yet learn; but sure we are, we may say with Bellarmin in his book, that in all the lower houses these seven years past, especially these two last sessions, Ego pungor, ego carpor. Our fame and actions have been tossed like tennis-balls among them, and all that spite and malice durst do to disgrace and inflame us hath been used. To be short, this lower house by their behaviour have perilled and annoyed our health, wounded our reputation, emboldened all ill-natured people, encroached upon many of our privileges, and plagued our people with their delays. It only resteth now, that you labour all you can to do that you think best to the repairing of our estate." [539] "Your queen," says Lord Thos. Howard, in a letter, "did talk of her subjects' love and good affection, and in good truth she aimed well; our king talketh of his subjects' fear and subjection, and herein I think he doth well too, as long as it holdeth good." _Nugæ Antiquæ_, i. 395. [540] The court of James I. was incomparably the most disgraceful scene of profligacy which this country has ever witnessed; equal to that of Charles II. in the laxity of female virtue, and without any sort of parallel in some other respects. Gross drunkenness is imputed even to some of the ladies who acted in the court pageants (_Nugæ Antiquæ_, i. 348), which Mr. Gifford, who seems absolutely enraptured with this age and its manners, might as well have remembered. _Life of Ben Jonson_, p. 231, etc. The king's prodigality is notorious. [541] "It is atheism and blasphemy," he says in a speech made in the star-chamber, 1616, "to dispute what God can do; good Christians content themselves with his will revealed in his word; so it is presumption and high contempt in a subject to dispute what a king can do, or say that a king cannot do this or that." King James's works, p. 557. It is probable that his familiar conversation was full of this rodomontade, disgusting and contemptible from so wretched a pedant, as well as offensive to the indignant ears of those who knew and valued their liberties. The story of Bishops Neile and Andrews is far too trite for repetition. [542] Carte, iii. 747; Birch's _Life of P. Henry_, 405. Rochester, three days after, directed Sir Thomas Edmondes at Paris to commence a negotiation for a marriage between Prince Charles and the second daughter of the late King of France. But the ambassador had more sense of decency, and declined to enter on such an affair at that moment. [543] Winwood, vol. ii.; Carte, iii. 749; Watson's _Hist. of Philip III._ Appendix. In some passages of this negotiation Cecil may appear not wholly to have deserved the character I have given him for adhering to Elizabeth's principles of policy. But he was placed in a difficult position, not feeling himself secure of the king's favour, which, notwithstanding his great previous services, that capricious prince, for the first year after his accession, rather sparingly afforded; as appears from the _Memoirs of Sully_, l. 14, and _Nugæ. Antiquæ_, i. 345. It may be said that Cecil was as little Spanish, just as Walpole was as little Hanoverian, as the partialities of their respective sovereigns would permit for their own reputation. It is hardly necessary to observe, that James and the kingdom were chiefly indebted to Cecil for the tranquillity that attended the accession of the former to the throne. I will take this opportunity of noticing that the learned and worthy compiler of the catalogue of the Lansdowne manuscripts in the Museum has thought fit not only to charge Sir Michael Hicks with venality, but to add: "It is certain that articles among these papers contribute to justify very strong suspicions, that neither of the secretary's masters [Lord Burleigh and Lord Salisbury] was altogether innocent on the score of corruption." _Lands. Cat._ vol. xci. p. 45. This is much too strong an accusation to be brought forward without more proof than appears. It is absurd to mention presents of fat bucks to men in power, as bribes; and rather more so to charge a man with being corrupted because an attempt is made to corrupt him, as the catalogue-maker has done in this place. I would not offend this respectable gentleman; but by referring to many of the Lansdowne manuscripts I am enabled to say that he has travelled frequently out of his province, and substituted his conjectures for an analysis or abstract of the document before him. [544] A great part of Winwood's third volume relates to this business, which, as is well known, attracted a prodigious degree of attention throughout Europe. The question, as Winwood wrote to Salisbury, was "not of the succession of Cleves and Juliers, but whether the house of Austria and the church of Rome, both now on the wane, shall recover their lustre and greatness in these parts of Europe."--P. 378. James wished to have the right referred to his arbitration, and would have decided in favour of the Elector of Brandenburg, the chief protestant competitor. [545] Winwood, vols. ii. and iii. _passim_. Birch, that accurate master of this part of English history, has done justice to Salisbury's character. _Negotiations of Edmondes_, p. 347. Miss Aikin, looking to his want of constitutional principle, is more unfavourable, and perhaps on the whole justly; but what statesman of that age was ready to admit the new creed of parliamentary control over the executive government? _Memoirs of James_, i. 395. [546] "On Sunday, before the king's going to Newmarket (which was Sunday last was a se'nnight), my Lord Coke and all the judges of the common law were before his majesty to answer some complaints made by the civil lawyers for the general granting of prohibitions. I heard that the Lord Coke, amongst other offensive speech, should say to his majesty that his highness was defended by his laws. At which saying, with other speech then used by the Lord Coke, his majesty was very much offended, and told him he spoke foolishly, and said that he was not defended by his laws, but by God, and so gave the Lord Coke, in other words, a very sharp reprehension, both for that and other things; and withal told him that Sir Thomas Crompton (judge of the admiralty) was as good a man as Coke; my Lord Coke having then, by way of exception, used some speech against Sir Thomas Crompton. Had not my lord treasurer, most humbly on his knee, used many good words to pacify his majesty and to excuse that which had been spoken, it was thought his highness would have been much more offended. In the conclusion, his majesty, by the means of my lord treasurer, was well pacified, and gave a gracious countenance to all the other judges, and said he would maintain the common law." Lodge, iii. 364. The letter is dated 25th November 1608, which shows how early Coke had begun to give offence by his zeal for the law. [547] 12 Reports. In his second Institute, p. 57, written a good deal later, he speaks in a very different manner of Bates's case, and declares the judgment of the court of exchequer to be contrary to law. [548] 12 Reports. There were, however, several proclamations afterwards to forbid building within two miles of London, except on old foundations, and in that case only with brick or stone, under penalty of being proceeded against by the attorney-general in the star-chamber. Rymer, xvii. 107 (1618), 144 (1619), 607 (1624). London nevertheless increased rapidly, which was by means of licences to build; the prohibition being in this, as in many other cases enacted chiefly for the sake of the dispensations. James made use of proclamations to infringe personal liberty in another respect. He disliked to see any country-gentleman come up to London, where, it must be confessed, if we trust to what those proclamations assert and the memoirs of the age confirm, neither their own behaviour, nor that of their wives and daughters, who took the worst means of repairing the ruin their extravagance had caused, redounded to their honour. The king's comparison of them to ships in a river and in the sea is well known. Still, in a constitutional point of view, we may be startled at proclamations commanding them to return to their country-houses and maintain hospitality, on pain of condign punishment. Rymer, xvi. 517 (1604); xvii. 417 (1622), 632 (1624). I neglected, in the first chapter, the reference I had made to an important dictum of the judges in the reign of Mary, which is decisive as to the legal character of proclamations even in the midst of the Tudor period. "The king, it is said, may make a proclamation quoad terrorem populi, to put them in fear of his displeasure, but not to impose any fine, forefeiture, or imprisonment; for no proclamation can make a new law, but only confirm and ratify an ancient one." Dalison's Reports, 20. [549] Winwood, iii. 193. [550] Carte, iii. 805. [551] The number of these was intended to be two hundred, but only ninety-three patents were sold in the first six years. Lingard, ix. 203, from _Somers Tracts_. In the first part of his reign he had availed himself of an old feudal resource, calling on all who held £40 a year in chivalry (whether of the crown or not, as it seems) to receive knighthood, or to pay a composition. Rymer, xvi. 530. The object of this was of course to raise money from those who thought the honour troublesome and expensive, but such as chose to appear could not be refused; and this accounts for his having made many hundred knights in the first year of his reign. Harris's _Life of James_, 69. [552] MS. penes autorem. [553] Carte, iv. 17. [554] Wilson, in Kennet, ii. 696. [555] This act (34 H. 8, c. 26) was repealed a few years afterwards. 21 J. 1, c. 10. [556] Commons' Journals, 466, 472, 481, 486. Sir Henry Wotton at length muttered something in favour of the prerogative of laying impositions, as belonging to hereditary though not to elective princes. _Id._ 493. This silly argument is only worth notice, as a proof what erroneous notions of government were sometimes imbibed from an intercourse with foreign nations. Dudley Digges and Sandys answered him very properly. [557] The judges having been called upon by the House of Lords to deliver their opinions on the subject of impositions, previous to the intended conference, requested, by the mouth of Chief Justice Coke, to be excused. This was probably a disappointment to Lord Chancellor Egerton, who had moved to consult them, and proceeded from Coke's dislike to him and to the court. It induced the house to decline the conference. Lords' Journals, 23rd May. [558] Lords' Journals, May 31; Commons' Journals, 496, 498. [559] Carte, iv. 23. Neville's memorial above mentioned was read in the house, May 14. [560] Carte, iv. 19, 20; Bacon, i. 695; C. J. 462. [561] C. J. 506; Carte, 23. This writer absurdly defends the prerogative of laying impositions on merchandise as part of the _law of nations_. [562] It is said that, previously to taking this step, the king sent for the Commons, and tore all their bills before their faces in the banqueting-house at Whitehall. D'Israeli's _Character of James_, p. 158, on the authority of an unpublished letter. [563] Carte; Wilson; Camden's _Annals of James I._ (in Kennet, ii. 643). [564] Carte, iv. p. 56. [565] 12 Reports, 119. [566] _State Trials_, ii. 889. [567] There had, however, been instances of it, as in Sir Walter Raleigh's case (Lodge, iii. 172, 173); and I have found proofs of it in the queen's reign; though I cannot at present quote my authority. In a former age, the judges had refused to give an extra-judicial answer to the king. Lingard, v. 382, from the year-book, Pasch. 1 H. 7, 15, Trin. 1. [568] _State Trials_, ii. 869; Bacon, ii. 483, etc.; Dalrymple's _Memorials of James I._, vol. i. p. 56. Some other very unjustifiable constructions of the law of treason took place in this reign. Thomas Owen was indicted and found guilty, under the statute of Edward III., for saying, that "the king, being excommunicated (_i.e._ if he should be excommunicated) by the pope, might be lawfully deposed and killed by any one, which killing would not be murder, being the execution of the supreme sentence of the pope;" a position very atrocious, but not amounting to treason. _State Trials_, ii. 879. And Williams, another papist, was convicted of treason by a still more violent stretch of law, for writing a book predicting the king's death in the year 1621. _Id._ 1085. [569] Bacon, ii. 500, 518, 522; Cro. Jac. 335, 343. [570] Bacon, ii. 517, etc.; Carte, iv. 35; _Biograph. Brit._, art. Coke. The king told the judges, he thought his prerogative as much wounded if it be publicly disputed upon, as if any sentence were given against it. [571] See D'Israeli, _Character of James I._, p. 125. He was too much affected by his dismissal from office. [572] Camden's _Annals of James I._ in Kennet, vol. ii.; Wilson, _ibid._, 704, 705; Bacon's Works, ii. 574. The fine imposed was £30,000; Coke voted for £100,000. [573] Fuller's _Church Hist._ 56; Neal, i. 435; Lodge, iii. 344. [574] _State Trials_, ii. 765. [575] Collier, 712, 717; Selden's Life in _Biographia Brit._ [576] Carte, iii. 698. [577] _State Trials_, ii. 23; Lodge's _Illustrations_, iii. 217. [578] Winwood, iii. 201, 279. [579] _Id._ 178. In this collection are one or two letters from Arabella, which show her to have been a lively and accomplished woman. It is said in a manuscript account of circumstances about the king's accession, which seems entitled to some credit, that on its being proposed that she should walk at the queen's funeral, she answered with spirit that, as she had been debarred her majesty's presence while living, she would not be brought on the stage as a public spectacle after her death. Sloane MSS. 827. Much occurs on the subject of this lady's imprisonment in one of the valuable volumes in Dr. Birch's handwriting, among the same MSS. 4161. Those have already assisted Mr. D'Israeli in his interesting memoir on Arabella Stuart, in the _Curiosities of Literature_, New Series, vol. i. They cannot be read (as I should conceive) without indignation at James and his ministers. One of her letters is addressed to the two chief-justices, begging to be brought before them by habeas corpus, being informed that it is designed to remove her far from those courts of justice where she ought to be tried and condemned, or cleared, to remote parts, whose courts she holds unfitted for her offence. "And if your lordships may not or will not grant unto me the ordinary relief of a distressed subject, then I beseech you become humble intercessors to his majesty that I may receive such benefit of justice, as both his majesty by his oath hath promised, and the laws of this realm afford to all others, those of his blood not excepted. And though, unfortunate woman! I can obtain neither, yet I beseech your lordships retain me in your good opinion, and judge charitably till I be proved to have committed any offence either against God or his majesty deserving so long restraint or separation from my lawful husband." Arabella did not profess the Roman catholic religion, but that party seem to have relied upon her; and so late as 1610, she incurred some "suspicion of being collapsed." Winwood, ii. 117. This had been also conjectured in the queen's life-time. _Secret Correspondence of Cecil with James I._, p. 118. [580] _State Trials_, ii. 769. [581] Sir Charles Cornwallis's _Memoir of Prince Henry_, reprinted in the Somers Tracts, vol. ii., and of which sufficient extracts may be found in Birch's life, contains a remarkably minute detail of all the symptoms attending the prince's illness, which was an epidemic typhus fever. The report of his physicians after dissection may also be read in many books. Nature might possibly have overcome the disorder, if an empirical doctor had not insisted on continually bleeding him. He had no other murderer. We need not even have recourse to Hume's acute and decisive remark that, if Somerset had been so experienced in this trade, he would not have spent five months in bungling about Overbury's death. Carte says (vol. iv. 33) that the queen charged Somerset with designing to poison her, Prince Charles, and the elector palatine, in order to marry the electress to Lord Suffolk's son. But this is too extravagant, whatever Anne might have thrown out in passion against a favourite she hated. On Henry's death the first suspicion fell of course on the papists. Winwood, iii. 410. Burnet doubts whether his aversion to popery did not hasten his death. And there is a remarkable letter from Sir Robert Naunton to Winwood, in the note of the last reference, which shows that suspicions of some such agency were entertained very early. But the positive evidence we have of his disease outweighs all conjecture. [582] The circumstances to which I allude are well known to the curious in English history, and might furnish materials for a separate dissertation, had I leisure to stray in these by-paths. Hume has treated them as quite unimportant; and Carte, with his usual honesty, has never alluded to them. Those who read carefully the new edition of the _State Trials_, and various passages in Lord Bacon's _Letters_, may form for themselves the best judgment they can. A few conclusions may, perhaps, be laid down as established, 1. That Overbury's death was occasioned, not merely by Lady Somerset's revenge, but by his possession of important secrets, which in his passion he had threatened Somerset to divulge. 2. That Somerset conceived himself to have a hold over the king by the possession of the same or some other secrets, and used indirect threats of revealing them. 3. That the king was in the utmost terror at hearing of these measures; as is proved by a passage in Weldon's _Memoirs_, p. 115, which, after being long ascribed to his libellous spirit, has lately received the most entire confirmation by some letters from More, lieutenant of the Tower, published in the _Archæologia_, vol. xviii. 4. That Bacon was in the king's confidence, and employed by him so to manage Somerset's trial, as to prevent him from making any imprudent disclosure, or the judges from getting any insight into that which it was not meant to reveal. See particularly a passage in his letter to Coke, vol. ii. 514, beginning, "This crime was second to none but the powder-plot." Upon the whole, I cannot satisfy myself in any manner as to this mystery. Prince Henry's death, as I have observed, is out of the question; nor does a different solution, hinted by Harris and others, and which may have suggested itself to the reader, appear probable to my judgment on weighing the whole case. Overbury was an ambitious, unprincipled man; and it seems more likely than anything else, that James had listened too much to some criminal suggestion from him and Somerset; but of what nature I cannot pretend even to conjecture; and that through apprehension of this being disclosed, he had pusillanimously acquiesced in the scheme of Overbury's murder. It is a remarkable fact, mentioned by Burnet, and perhaps little believed, but which, like the former, has lately been confirmed by documents printed in the _Archæologia_, that James in the last year of his reign, while dissatisfied with Buckingham, privately renewed his correspondence with Somerset, on whom he bestowed at the same time a full pardon, and seems to have given him hopes of being restored to his former favour. A memorial drawn up by Somerset, evidently at the king's command, and most probably after the clandestine interview reported by Burnet, contains strong charges against Buckingham. _Archæologia_, vol. xvii. 280. But no consequences resulted from this; James was either reconciled to his favourite before his death, or felt himself too old for a struggle. Somerset seems to have tampered a little with the popular party in the beginning of the next reign. A speech of Sir Robert Cotton's in 1625 (_Parl. Hist._ ii. 145) praises him, comparatively at least with his successor in royal favour; and he was one of those against whom informations were brought in the star-chamber for dispersing Sir Robert Dudley's famous proposal for bridling the impertinences of parliament. Kennet, iii. 62. The patriots, however, of that age had too much sense to encumber themselves with an ally equally unserviceable and infamous. There cannot be the slightest doubt of Somerset's guilt as to the murder, though some have thought the evidence insufficient (Carte, iv. 34); he does not deny it in his remarkable letter to James, requesting, or rather demanding, mercy, printed in the Cabala and in Bacon's Works. [583] Raleigh made an attempt to destroy himself on being committed to the Tower; which of course affords a presumption of his consciousness that something could be proved against him. Cayley's _Life of Raleigh_, vol. ii. p. 10. Hume says, it appears from Sully's _Memoirs_ that he had offered his services to the French ambassador. I cannot find this in Sully; whom Raleigh, however, and his party seem to have aimed at deceiving by false information. Nor could there be any treason in making an interest with the minister of a friendly power. Carte quotes the despatches of Beaumont, the French ambassador, to prove the connection of the conspirators with the Spanish plenipotentiary. But it may be questioned whether he knew any more than the government gave out. If Raleigh had ever shown a discretion bearing the least proportion to his genius, we might reject the whole story as improbable. But it is to be remembered that there had long been a catholic faction, who fixed their hopes on Arabella; so that the conspiracy, though extremely injudicious, was not so perfectly unintelligible as it appears to a reader of Hume, who has overlooked the previous circumstances. It is also to be considered, that the king had shown so marked a prejudice against Raleigh on his coming to England, and the hostility of Cecil was so insidious and implacable, as might drive a man of his rash and impetuous courage to desperate courses. See Cayley's _Life of Raleigh_, vol. ii.; a work containing much interesting matter, but unfortunately written too much in the spirit of an advocate, which, with so faulty a client, must tend to an erroneous representation of facts. [584] This estate was Sherborn Castle, which Raleigh had not very fairly obtained from the see of Salisbury. He settled this before his conviction upon his son; but an accidental flaw in the deed enabled the king to wrest it from him, and bestow it on the Earl of Somerset. Lady Raleigh, it is said, solicited his majesty on her knees to spare it; but he only answered, "I mun have the land, I mun have it for Carr." He gave him, however, £12,000 instead. But the estate was worth £5000 per annum. This ruin of the prospects of a man far too intent on aggrandisement impelled him once more into the labyrinth of fatal and dishonest speculations. Cayley, 89, etc.; _Somers Tracts_, ii. p. 22, etc.; _Curiosities of Literature_, New Series, vol. ii. It has been said that Raleigh's unjust conviction made him in one day the most popular, from having been the most odious, man in England. He was certainly such under Elizabeth. This is a striking, but by no means solitary, instance of the impolicy of political persecution. [585] Rymer, xvi. 789. He was empowered to name officers, to use martial law, etc. [586] James made it a merit with the court of Madrid, that he had put to death a man so capable of serving him merely to give them satisfaction. _Somers Tracts_, ii. 437. There is even reason to suspect that he betrayed the secret of Raleigh's voyage to Gondomar, before he sailed. Hardwicke, _State Papers_, i. 398. It is said in Mr. Cayley's _Life of Raleigh_ that his fatal mistake in not securing a pardon under the great seal was on account of the expense. But the king would have made some difficulty at least about granting it. [587] This project began as early as 1605. Winwood, vol. ii. The king had hopes that the United Provinces would acknowledge the sovereignty of Prince Henry and the infanta on their marriage; and Cornwallis was directed to propose this formally to the court of Madrid. _Id._ p. 201. But Spain would not cede the point of sovereignty; nor was this scheme likely to please either the states-general or the court of France. In the later negotiation about the marriage of Prince Charles, those of the council who were known or suspected catholics, Arundel, Worcester, Digby, Weston, Calvert, as well as Buckingham, whose connections were such, were in the Spanish party. Those reputed to be jealous protestants were all against it. Wilson, in Kennet, ii. 725. Many of the former were bribed by Gondomar. _Id._ and Rushworth, i. 19. [588] The proclamation for this parliament contains many of the unconstitutional directions to the electors, contained, as has been seen, in that of 1604, though shorter. Rymer, xvii. 270. [589] "Deal with me, as I shall desire at your hands," etc. "He knew not," he told them, "the laws and customs of the land when he first came, and was misled by the old counsellors whom the old queen had left;"--he owns that at the last parliament there was "a strange kind of beast called undertaker," etc. _Parl. Hist._ i. 1180. Yet this coaxing language was oddly mingled with sallies of his pride and prerogative notions. It is evidently his own composition, not Bacon's. The latter, in granting the speaker's petitions, took the high tone so usual in this reign, and directed the House of Commons like a schoolmaster. Bacon's Works, i. 701. [590] Debates of Commons in 1621, vol. i. p. 84. I quote the two volumes published at Oxford in 1766; they are abridged in the new _Parliamentary History_. [591] _Id._ 103, 109. [592] The Commons in this session complained to the Lords, that the Bishop of London (Stokesley) had imprisoned one Philips on suspicion of heresy. Some time afterwards, they called upon him to answer their complaint. The bishop laid the matter before the Lords, who all declared that it was unbecoming for any lord of parliament to make answer to any one in that place; "quod non consentaneum fuit aliquem procerum prædictorum alicui in eo loco responsorum." Lords' Journals, i. 71. The lords, however, in 1701 (_State Trials_, xiv. 275), seem to have recognised this as a case of impeachment. [593] Debates in 1621, p. 114, 228, 229. [594] _Id. passim._ [595] Carte. [596] Clarendon speaks of this impeachment as an unhappy precedent, made to gratify a private displeasure. This expression seems rather to point to Buckingham than to Coke; and some letters of Bacon to the favourite at the time of his fall display a consciousness of having offended him. Yet Buckingham had much more reason to thank Bacon as his wisest counsellor, than to assist in crushing him. In his works (vol. i. p. 712) is a tract, entitled "Advice to the Duke of Buckingham," containing instructions for his governance as minister. These are marked by the deep sagacity and extensive observation of the writer. One passage should be quoted in justice to Bacon. "As far as it may lie in you, let no arbitrary power be intruded; the people of this kingdom love the laws thereof, and nothing will oblige them more than a confidence of the free enjoying of them: what the nobles upon an occasion once said in parliament, 'Nolumus leges Angliæ mutari,' is imprinted in the hearts of all the people." I may add that with all Bacon's pliancy, there are fewer over-strained expressions about the prerogative in his political writings than we should expect. His practice was servile, but his principles were not unconstitutional. We have seen how strongly he urged the calling of parliament in 1614: and he did the same, unhappily for himself, in 1621. Vol. ii. p. 580. He refused also to set the great seal to an office intended to be erected for enrolling prentices, a speculation apparently of some monopolists; writing a very proper letter to Buckingham, that there was no ground of law for it. P. 555. I am very loth to call Bacon, for the sake of Pope's antithesis, "the meanest of mankind." Who would not wish to believe the feeling language of his letter to the king, after the attack on him had already begun? "I hope I shall not be found to have the troubled fountain of a corrupt heart, in a depraved habit of taking rewards to pervert justice; howsoever I may be frail, and partake of the abuses of the times."--P. 589. Yet the general disesteem of his contemporaries speaks forcibly against him. Sir Simon d'Ewes and Weldon, both indeed bitter men, give him the worst of characters. "Surely," says the latter, "never so many parts and so base and abject a spirit tenanted together in any one earthen cottage as in this man." It is a striking proof of the splendour of Bacon's genius, that it was unanimously acknowledged in his own age amidst so much that should excite contempt. He had indeed ingratiated himself with every preceding parliament through his incomparable ductility; having take an active part in their complaints of grievances in 1604, before he became attorney-general, and even on many occasions afterwards while he held that office, having been intrusted with the management of conferences on the most delicate subjects. In 1614, the Commons, after voting that the attorney-general ought not to be elected to parliament, made an exception in favour of Bacon. Journals, p. 460. "I have been always gracious in the lower house," he writes to James in 1616, begging for the post of chancellor; "I have interest in the gentlemen of England, and shall be able to do some good effect in rectifying that body of parliament-men, which is cardo rerum." Vol. ii. p. 496. I shall conclude this note by observing, that, if all Lord Bacon's philosophy had never existed, there would be enough in his political writings to place him among the greatest men this country has produced. [597] Debates in 1621, vol. ii. p. 7. [598] Debates, p. 14. [599] In a former parliament of this reign, the Commons having sent up a message, wherein they entitled themselves the knights, citizens, burgesses, and barons of the commons' court of parliament, the Lords sent them word that they would never acknowledge any man that sitteth in the lower house to have the right or title of a baron of parliament; nor could admit the term of the commons' court of parliament; "because all your house together, without theirs, doth make no court of parliament." 4th March, 1606. Lords' Journals. Nevertheless the Lords did not scruple almost immediately afterwards, to denominate their own house a court, as appears by memoranda of 27th and 28th May; they even issued a habeas corpus as from a court, to bring a servant of the Earl of Bedford before them. So also in 1609, 16th and 17th of February. And on April 14th and 18th, 1614; and probably later, if search were made. I need hardly mention, that the barons mentioned above, as part of the Commons, were the members for the cinque ports, whose denomination is recognised in several statutes. [600] Debates in 1621, vol. i. p. 355, etc.; vol. ii. p. 5, etc. Mede writes to his correspondent on May 11, that the execution had not taken place; "but I hope it will." The king was plainly averse to it. [601] The following observation on Floyd's case, written by Mr. Harley, in a manuscript account of the proceedings (Harl. MSS. 6274), is well worthy to be inserted. I copy from the appendix to the above-mentioned debates of 1621. "The following collection," he has written at the top, "is an instance how far a zeal against popery and for one branch of the royal family, which was supposed to be neglected by King James, and consequently in opposition to him, will carry people against common justice and humanity." And again at the bottom: "For the honour of Englishmen, and indeed of human nature, it were to be hoped these debates were not truly taken, there being so many motions contrary to the laws of the land, the laws of parliament, and common justice. Robert Harley, July 14, 1702." It is remarkable that this date is very near the time when the writer of these just observations, and the party which he led, had been straining in more than one instance the privileges of the House of Commons, not certainly with such violence as in the case of Floyd, but much beyond what can be deemed their legitimate extent. [602] In a much later period of the session, when the Commons had lost their good humour, some heat was very justly excited by a petition from some brewers, complaining of an imposition of four-pence on the quarter of malt. The courtiers defended this as a composition in lieu of purveyance. But it was answered that it was compulsory, for several of the principal brewers had been committed and lay long in prison for not yielding to it. One said that impositions of this nature overthrew the liberty of all the subjects of this kingdom; and if the king may impose such taxes, then are we but villains, and lose all our liberties. It produced an order that the matter be examined before the house, the petitioners to be heard by council, and all the lawyers of the house to be present. Debates of 1621, vol. ii. 252; Journals, p. 652. But nothing further seems to have taken place, whether on account of the magnitude of the business which occupied them during the short remainder of the session, or because a bill which passed their house to prevent illegal imprisonment, or restraint on the lawful occupation of the subject, was supposed to meet this case. It is a remarkable instance of arbitrary taxation, and preparatory to an excise. [603] Debates of 1621, p. 14; Hatsell's _Precedents_, i. 133. [604] Debates, p. 114, _et alibi, passim_. [605] Vol. ii. 170, 172. [606] _Id._ p. 186. [607] P. 189. Lord Cranfield told the Commons there were three reasons why they should give liberally. 1. That lands were now a third better than when the king came to the crown. 2. That wools, which were then 20_s._ were now 30_s._ 3. That corn had risen from 26_s._ to 36_s._ the quarter. _Ibid._ There had certainly been a very great increase of wealth under James, especially to the country gentlemen; of which their style of building is an evident proof. Yet in this very session complaints had been made of the want of money, and fall in the price of lands (vol. i. p. 16); and an act was proposed against the importation of corn (vol. ii. p. 87). In fact, rents had been enormously enhanced in this reign, which the country gentlemen of course endeavoured to keep up. But corn, probably through good seasons, was rather lower in 1621 than it had been--about 30_s._ a quarter. [608] P. 242, etc. [609] _Id._ 174, 200. Compare also p. 151. Sir Thomas Wentworth appears to have discountenanced the resenting this as a breach of privilege. Doubtless the house showed great and even excessive moderation in it; for we can hardly doubt that Sandys was really committed for no other cause than his behaviour in parliament. It was taken up again afterwards. P. 259. [610] P. 261, etc. [611] P. 284. [612] P. 289. [613] P. 317. [614] P. 330. [615] P. 339. [616] P. 359. [617] Rymer, xvii. 344; _Parl. Hist._ Carte, 93; Wilson. [618] Besides the historians, see Cabala, part ii. p. 155 (4to edit.); D'Israeli's _Character of James I._, p. 125; and Mede's Letters, Harl. MSS. 389. [619] Wilson's _Hist. of James I._ in Kennet, ii. 247, 749. Thirty-three peers, Mr. Joseph Mede tells us in a letter of Feb. 24, 1621 (Harl. MSS. 389), "signed a petition to the king which they refused to deliver to the council, as he desired, nor even to the prince, unless he would say he did not receive it as a counsellor; whereupon the king sent for Lord Oxford, and asked him for it; he, according to previous agreement, said he had it not; then he sent for another, who made the same answer: at last they told him they had resolved not to deliver it, unless they were admitted all together. Whereupon his majesty, wonderfully incensed, sent them all away, _re infectâ_, and said that he would come into parliament himself, and bring them all to the bar." This petition, I believe, did not relate to any general grievances, but to a question of their own privileges, as to their precedence of Scots peers. Wilson, _ubi supra_. But several of this large number were inspired by more generous sentiments; and the commencement of an aristocratic opposition deserves to be noticed. In another letter, written in March, Mede speaks of the good understanding between the king and parliament; he promised they should sit as long as they like, and hereafter he would have a parliament every three years. "Is not this good if it be true?... But certain it is that the Lords stick wonderful fast to the Commons and all take great pains." The entertaining and sensible biographer of James has sketched the characters of these Whig peers. Aikin's _James I._, ii. 238. [620] One of these may be found in the _Somers Tracts_, ii. 470, entitled Tom Tell-truth, a most malignant ebullition of disloyalty, which the author must have risked his neck as well as ears in publishing. Some outrageous reflections on the personal character of the king could hardly be excelled by modern licentiousness. Proclamations about this time against excess of lavish speech in matters of state (Rymer, xvii. 275, 514), and against printing or uttering seditious and scandalous pamphlets (_Id._ 522, 616) show the tone and temper of the nation. [621] The letters on this subject, published by Lord Hardwicke (_State Papers_, vol. i.) are highly important; and being unknown to Carte and Hume, render their narratives less satisfactory. Some pamphlets of the time, in the second volume of the _Somers Tracts_, may be read with interest; and Howell's _Letters_, being written from Madrid during the Prince of Wales's residence, deserve notice. See also Wilson in Kennet, p. 750, _et post_. Dr. Lingard has illustrated the subject lately (ix. 271). [622] Hume, and many other writers on the side of the Crown, assert the value of a subsidy to have fallen from £70,000, at which it had been under the Tudors, to £55,000, or a less sum. But though I will not assert a negative too boldly, I have no recollection of having found any good authority for this; and it is surely too improbable to be lightly credited. For admit that no change was made in each man's rate according to the increase of wealth and diminution of the value of money, the amount must at least have been equal to what it had been; and to suppose the contributors to have prevailed on the assessors to underrate them, is rather contrary to common fiscal usage. In one of Mede's letters, which of course I do not quote as decisive, it is said that the value of a subsidy was _not above_ £80,000; and that the assessors were directed (this was in 1621) not to follow former books, but value every man's estate according to their knowledge, and not his own confession. [623] _Parl. Hist._ 1383, 1388, 1390; Carte, 119. The king seems to have acted pretty fairly in this parliament, bating a gross falsehood in denying the intended toleration of papists. He wished to get further pledges of support from parliament before he plunged into a war, and was very right in doing so. On the other hand, the prince and Duke of Buckingham behaved in public towards him with great rudeness. _Parl. Hist._ 1396. [624] _Parl. Hist._ 1421. [625] Clarendon blames the impeachment of Middlesex for the very reason which makes me deem it a fortunate event for the constitution, and seems to consider him as a sacrifice to Buckingham's resentment. Hacket also, the biographer of Williams, takes his part. Carte, however, thought him guilty (p. 116); and the unanimous vote of the peers is much against him, since that house was not wholly governed by Buckingham. See too the "Life of Nicholas Farrar" in Wordsworth's _Ecclesiastical Biography_, vol. iv.; where it appears that that pious and conscientious man was one of the treasurer's most forward accusers, having been deeply injured by him. It is difficult to determine the question from the printed trial. [626] 21 Jac. 1, c. 3. See what Lord Coke says on this act, and on the general subject of monopolies. 3 Inst. 181. [627] _P. H._ 1483. [628] _Id._ 1488. CHAPTER VII ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF CHARLES I. TO THE DISSOLUTION OF HIS THIRD PARLIAMENT 1625-1629 Charles the First had much in his character very suitable to the times in which he lived, and to the spirit of the people he was to rule; a stern and serious deportment, a disinclination to all licentiousness, and a sense of religion that seemed more real than in his father.[629] These qualities we might suppose to have raised some expectation of him, and to have procured at his accession some of that popularity, which is rarely withheld from untried princes. Yet it does not appear that he enjoyed even this first transient sunshine of his subjects' affection. Solely intent on retrenching the excesses of prerogative, and well aware that no sovereign would voluntarily recede from the possession of power, they seem to have dreaded to admit into their bosoms any sentiments of personal loyalty, which might enervate their resolution. And Charles took speedy means to convince them that they had not erred in withholding their confidence. Elizabeth in her systematic parsimony, James in his averseness to war, had been alike influenced by a consciousness that want of money alone could render a parliament formidable to their power. None of the irregular modes of supply were ever productive enough to compensate for the clamour they occasioned; after impositions and benevolences were exhausted, it had always been found necessary, in the most arbitrary times of the Tudors, to fall back on the representatives of the people. But Charles succeeded to a war, at least to the preparation of a war, rashly undertaken through his own weak compliance, the arrogance of his favourite, and the generous or fanatical zeal of the last parliament. He would have perceived it to be manifestly impossible, if he had been capable of understanding his own position, to continue this war without the constant assistance of the House of Commons, or to obtain that assistance without very costly sacrifices of his royal power. It was not the least of this monarch's imprudences, or rather of his blind compliances with Buckingham, to have not only commenced hostilities against Spain which he might easily have avoided,[630] and persisted in them for four years, but entered on a fresh war with France, though he had abundant experience to demonstrate the impossibility of defraying its charges. _Parliament of 1625._--The first parliament of this reign has been severely censured on account of the penurious supply it doled out for the exigencies of a war, in which its predecessors had involved the king. I will not say that this reproach is wholly unfounded. A more liberal proceeding, if it did not obtain a reciprocal concession from the king, would have put him more in the wrong. But, according to the common practice and character of all such assemblies, it was preposterous to expect subsidies equal to the occasion, until a foundation of confidence should be laid between the Crown and parliament. The Commons had begun probably to repent of their hastiness in the preceding year, and to discover that Buckingham and his pupil, or master (which shall we say?), had conspired to deceive them.[631] They were not to forget that none of the chief grievances of the last reign were yet redressed, and that supplies must be voted slowly and conditionally if they would hope for reformation. Hence they made their grant of tonnage and poundage to last but for a year instead of the king's life, as had for two centuries been the practice; on which account the upper house rejected the bill.[632] Nor would they have refused a further supply, beyond the two subsidies (about £140,000) which they had granted, had some tender of redress been made by the Crown; and were actually in debate upon the matter, when interrupted by a sudden dissolution.[633] Nothing could be more evident, by the experience of the late reign as well as by observing the state of public spirit, than that hasty and premature dissolutions or prorogations of parliament served but to aggravate the Crown's embarrassments. Every successive House of Commons inherited the feelings of its predecessor, without which it would have ill represented the prevalent humour of the nation. The same men, for the most part, came again to parliament more irritated and desperate of reconciliation with the sovereign than before. Even the politic measure, as it was fancied to be, of excluding some of the most active members from seats in the new assembly, by nominating them sheriffs for the year, failed altogether of the expected success; as it naturally must in an age when all ranks partook in a common enthusiasm.[634] Hence the prosecution against Buckingham, to avert which Charles had dissolved his first parliament, was commenced with redoubled vigour in the second. It was too late, after the precedents of Bacon and Middlesex, to dispute the right of the Commons to impeach a minister of state. The king, however, anticipating their resolutions, after some sharp speeches only had been uttered against his favourite, sent a message that he would not allow any of his servants to be questioned among them, much less such as were of eminent place and near unto him. He saw, he said, that some of them aimed at the Duke of Buckingham, whom, in the last parliament of his father, all had combined to honour and respect, nor did he know what had happened since to alter their affections; but he assured them that the duke had done nothing without his own special direction and appointment. This haughty message so provoked the Commons that, having no express testimony against Buckingham, they came to a vote that common fame is a good ground of proceeding either by inquiry, or presenting the complaint to the king or Lords; nor did a speech from the lord keeper, severely rating their presumption, and requiring on the king's behalf that they should punish two of their members who had given him offence by insolent discourses in the house, lest he should be compelled to use his royal authority against them; nor one from the king himself, bidding them remember that parliaments were altogether in his power for their calling, sitting, and dissolution; therefore, as he found the fruits of them good or evil, they were to continue to be or not to be, tend to pacify or to intimidate the assembly. They addressed the king in very decorous language, but asserting "the ancient, constant, and undoubted right and usage of parliaments to question and complain of all persons, of what degree soever, found grievous to the commonwealth, in abusing the power and trust committed to them by their sovereign."[635] The duke was accordingly impeached at the bar of the house of peers on eight articles, many of them probably well-founded; yet as the Commons heard no evidence in support of them, it was rather unreasonable in them to request that he might be committed to the Tower. In the conduct of this impeachment, two of the managers, Sir John Eliot and Sir Dudley Digges, one the most illustrious confessor in the cause of liberty, whom that time produced, the other, a man of much ability and a useful supporter of the popular party, though not exempt from some oblique views towards promotion, gave such offence by words spoken, or alleged to be spoken, in derogation of his majesty's honour, that they were committed to the Tower. The Commons, of course, resented this new outrage. They resolved to do no more business till they were righted in their privileges. They denied the words imputed to Digges; and, thirty-six peers asserting that he had not spoken them, the king admitted that he was mistaken, and released both their members.[636] He had already broken in upon the privileges of the House of Lords, by committing the Earl of Arundel to the Tower during the session; not upon any political charge, but, as was commonly surmised, on account of a marriage which his son had made with a lady of royal blood. Such private offences were sufficient in those arbitrary reigns to expose the subject to indefinite imprisonment, if not to an actual sentence in the star-chamber. The Lords took up this detention of one of their body, and after formal examination of precedents by a committee, came to a resolution, "that no lord of parliament, the parliament sitting, or within the usual times of privilege of parliament, is to be imprisoned or restrained without sentence or order of the house, unless it be for treason or felony, or for refusing to give surety for the peace." This assertion of privilege was manifestly warranted by the co-extensive liberties of the Commons. After various messages between the king and Lords, Arundel was ultimately set at liberty.[637] This infringement of the rights of the peerage was accompanied by another not less injurious, the refusal of a writ of summons to the Earl of Bristol. The Lords were justly tenacious of this unquestionable privilege of their order, without which its constitutional dignity and independence could never be maintained. Whatever irregularities or uncertainty of legal principle might be found in earlier times as to persons summoned only by writ without patents of creation, concerning whose hereditary peerage there is much reason to doubt; it was beyond all controversy that an Earl of Bristol holding his dignity by patent was entitled of right to attend parliament. The house necessarily insisted upon Bristol's receiving his summons, which was sent him with an injunction not to comply with it by taking his place. But the spirited earl knew that the king's constitutional will expressed in the writ ought to outweigh his private command, and laid the secretary's letter before the House of Lords. The king prevented any further interference in his behalf by causing articles of charge to be exhibited against him by the attorney-general, whereon he was committed to the Tower. These assaults on the pride and consequence of an aristocratic assembly, from whom alone the king could expect effectual support, display his unfitness not only for the government of England, but of any other nation. Nor was his conduct towards Bristol less oppressive than impolitic. If we look at the harsh and indecent employment of his own authority and even testimony, to influence a criminal process against a man of approved and untainted worth,[638] and his sanction of charges which, if Bristol's defence be as true as it is now generally admitted to be, he must have known to be unfounded; we shall hardly concur with those candid persons who believe that Charles would have been an excellent prince in a more absolute monarchy. Nothing in truth can be more preposterous than to maintain, like Clarendon and Hume, the integrity and innocence of Lord Bristol, together with the sincerity and humanity of Charles I. Such inconsistencies betray a determination in the historian to speak of men according to his preconceived affection or prejudice, without so much as attempting to reconcile these sentiments to the facts which he can neither deny nor excuse.[639] Though the Lords petitioned against a dissolution, the king was determined to protect his favourite, and rescue himself from the importunities of so refractory a House of Commons.[640] Perhaps he had already taken the resolution of governing without the concurrence of parliaments, though he was induced to break it the ensuing year. For the Commons having delayed to pass a bill for the five subsidies they had voted in this session till they should obtain some satisfaction for their complaints, he was left without any regular supply. This was not wholly unacceptable to some of his counsellors, and probably to himself; as affording a pretext for those unauthorised demands which the advocates of arbitrary prerogative deemed more consonant to the monarch's honour. He had issued letters of privy seal, after the former parliament, to those in every county, whose names had been returned by the lord lieutenant as most capable, mentioning the sum they were required to lend, with a promise of repayment in eighteen months.[641] This specification of a particular sum was reckoned an unusual encroachment, and a manifest breach of the statute against arbitrary benevolences; especially as the name of those who refused compliance were to be returned to the council. But the government now ventured on a still more outrageous stretch of power. They first attempted to persuade the people that, as subsidies had been voted in the House of Commons, they should not refuse to pay them, though no bill had been passed for that purpose. But a tumultuous cry was raised in Westminster Hall from those who had been convened, that they would pay no subsidy but by authority of parliament.[642] This course, therefore, was abandoned for one hardly less unconstitutional. A general loan was demanded from every subject, according to the rate at which he was assessed in the last subsidy. The commissioners appointed for the collection of this loan received private instructions to require not less than a certain proportion of each man's property in lands or goods, to treat separately with every one, to examine on oath such as should refuse, to certify the names of refractory persons to the privy council, and to admit of no excuse for abatement of the sum required.[643] _Arbitrary taxation._--This arbitrary taxation (for the name of loan could not disguise the extreme improbability that the money would be repaid), so general and systematic as well as so weighty, could not be endured without establishing a precedent that must have shortly put an end to the existence of parliaments. For, if those assemblies were to meet only for the sake of pouring out stupid flatteries at the foot of the throne, of humbly tendering such supplies as the ministry should suggest, or even of hinting at a few subordinate grievances which touched not the king's prerogative and absolute control in matters of state--functions which the Tudors and Stuarts were well pleased that they should exercise--if every remonstrance was to be checked by a dissolution, and chastised by imprisonment of its promoters, every denial of subsidy to furnish a justification for extorted loans, our free-born high-minded gentry would not long have brooked to give their attendance in such an ignominious assembly, and an English parliament would have become as idle a mockery of national representation as the cortes of Castile. But this kingdom was not in a temper to put up with tyranny. The king's advisers were as little disposed to recede from their attempt. They prepared to enforce it by the arm of power.[644] The common people who refused to contribute were impressed to serve in the navy. The gentry were bound by recognisance to appear at the council-table, where many of them were committed to prison.[645] Among these were five knights, Darnel, Carbet, Earl, Heveningham, and Hampden, who sued the court of king's bench for their writ of habeas corpus. The writ was granted; but the warden of the Fleet made return that they were detained by a warrant from the privy council, informing him of no particular cause of imprisonment, but that they were committed by the special command of his majesty. This gave rise to a most important question, whether such a return was sufficient in law to justify the court in remitting the parties to custody. The fundamental immunity of English subjects from arbitrary detention had never before been so fully canvassed; and it is to the discussion which arose out of the case of these five gentlemen that we owe its continual assertion by parliament, and its ultimate establishment in full practical efficacy by the statute of Charles II. It was argued with great ability by Noy, Selden, and other eminent lawyers, on behalf of the claimants, and by the attorney-general Heath for the Crown. The counsel for the prisoners grounded their demand of liberty on the original basis of Magna Charta; the twenty-ninth section of which, as is well known, provides that "no free man shall be taken or imprisoned unless by lawful judgment of his peers, or the law of the land." This principle having been frequently transgressed by the king's privy council in earlier times, statutes had been repeatedly enacted, independently of the general confirmations of the charter, to redress this material grievance. Thus in the 25th of Edward III. it is provided that "no one shall be taken by petition or suggestion to the king or his counsel, unless it be (_i.e._ but only) by indictment or presentment, or by writ original at the common law." And this is again enacted three years afterwards, with little variation, and once again in the course of the same reign. It was never understood, whatever the loose language of these old statutes might suggest, that no man could be kept in custody upon a criminal charge before indictment, which would have afforded too great security to offenders. But it was the regular practice that every warrant of commitment, and every return by a gaoler to the writ of habeas corpus, must express the nature of the charge, so that it might appear whether it were no legal offence; in which case the party must be instantly set at liberty; or one for which bail ought to be taken, or one for which he must be remanded to prison. It appears also to have been admitted without controversy, though not perhaps according to the strict letter of law, that the privy council might commit to prison on a criminal charge, since it seemed preposterous to deny that power to those intrusted with the care of the commonwealth, which every petty magistrate enjoyed. But it was contended that they were as much bound as every petty magistrate to assign such a cause for their commitments as might enable the court of king's bench to determine whether it should release or remand the prisoners brought before them by habeas corpus. The advocates for this principal alleged several precedents, from the reign of Henry VII. to that of James, where persons committed by the council generally, or even by the special command of the king, had been admitted to bail on their habeas corpus. "But I conceive," said one of these, "that our case will not stand upon precedent, but upon the fundamental laws and statutes of this realm; and though the precedents look one way or the other, they are to be brought back unto the laws by which the kingdom is governed." He was aware that a pretext might be found to elude most of his precedents. The warrant had commonly declared the party to be charged on _suspicion_ of treason or of felony; in which case he would of course be bailed by the court. Yet in some of these instances the words "by the king's special command," were inserted in the commitment; so that they served to repel the pretension of an arbitrary right to supersede the law by his personal authority. Ample proof was brought from the old law books that the king's command could not excuse an illegal act. "If the king command me," said one of the judges under Henry VI., "to arrest a man, and I arrest him, he shall have an action of false imprisonment against me, though it were done in the king's presence." "The king," said Chief Justice Markham to Edward IV., "cannot arrest a man upon suspicion of felony or treason, as any of his subjects may; because if he should wrong a man by such arrest, he can have no remedy against him." No verbal order of the king, nor any under his sign manual or privy signet, was a command, it was contended by Selden, which the law would recognise as sufficient to arrest or detain any of his subjects; a writ duly issued under the seal of a court being the only language in which he could signify his will. They urged further that, even if the first commitment by the king's command were lawful, yet when a party had continued in prison for a reasonable time, he should be brought to answer, and not be indefinitely detained; liberty being a thing so favoured by the law that it will not suffer any man to remain in confinement for any longer time than of necessity it must. To these pleadings for liberty, Heath, the attorney-general, replied in a speech of considerable ability, full of those high principles of prerogative which, trampling as it were on all statute and precedent, seemed to tell the judges that they were placed there to obey rather than to determine. "This commitment," he says, "is not in a legal and ordinary way, but by the special command of our lord the king, which implies not only the fact done, but so extraordinarily done, that it is notoriously his majesty's immediate act and will that it should be so." He alludes afterwards, though somewhat obscurely, to the king's absolute power, as contra-distinguished from that according to law; a favourite distinction, as I have already observed, with the supporters of despotism. "Shall we make inquiries," he says, "whether his commands are lawful?--who shall call in question the justice of the king's actions, who is not to give account for them?" He argues from the legal maxim that the king can do no wrong, that a cause must be presumed to exist for the commitment, though it be not set forth. He adverts with more success to the number of papists and other state prisoners, detained for years in custody for mere political jealousy. "Some there were," he says, "in the Tower who were put in it when very young; should they bring a habeas corpus, would the court deliver them?" Passing next to the precedents of the other side, and condescending to admit their validity, however contrary to the tenor of his former argument, he evades their application by such distinctions as I have already mentioned. The judges behaved during this great cause with apparent moderation and sense of its importance to the subject's freedom. Their decision, however, was in favour of the Crown; and the prisoners were remanded to custody. In pronouncing this judgment, the chief justice, Sir Nicholas Hyde, avoiding the more extravagant tenets of absolute monarchy, took the narrower line of denying the application of those precedents, which had been alleged to show the practice of the court in bailing persons committed by the king's special command. He endeavoured also to prove that, where no cause had been expressed in the warrant, except such command as in the present instance, the judges had always remanded the parties; but with so little success that I cannot perceive more than one case mentioned by him, and that above a hundred years old, which supports this doctrine. The best authority on which he had to rely, was the resolution of the judges in the 34th of Elizabeth, published in Anderson's _Reports_.[646] For, though this is not grammatically worded, it seems impossible to doubt that it acknowledges the special command of the king or the authority of the privy council as a body, to be such sufficient warrant for a commitment as to require no further cause to be expressed, and to prevent the judges from discharging the party from custody, either absolutely or upon bail. Yet it was evidently the consequence of this decision, that every statute from the time of Magna Charta, designed to protect the personal liberties of Englishmen, became a dead letter; since the insertion of four words in a warrant (per speciale mandatum regis), which might become matter of form, would control their remedial efficacy. And this wound was the more deadly, in that the notorious cause of these gentlemen's imprisonment was their withstanding an illegal exaction of money. Everything that distinguished our constitutional laws, all that rendered the name of England valuable, was at stake on this issue. If the judgment in the case of ship-money was more flagrantly iniquitous, it was not so extensively destructive as the present.[647] _A parliament called in 1628._--Neither of these measures, however, of illegal severity towards the uncompliant, backed as they were by a timid court of justice, nor the exhortations of a more prostitute and shameless band of churchmen, could divert the nation from its cardinal point of faith in its own prescriptive franchises. To call another parliament appeared the only practicable means of raising money for a war, in which the king persisted with great impolicy or rather blind trust in his favourite. He consented to this with extreme unwillingness.[648] Previously to its assembling, he released a considerable number of gentlemen and others who had been committed for their refusal of the loan. These were, in many cases, elected to the new parliament; coming thither with just indignation at their country's wrongs, and pardonable resentment at their own. No year, indeed, within the memory of any one living, had witnessed such violations of public liberty as 1627. Charles seemed born to carry into daily practice those theories of absolute power, which had been promulgated from his father's lips. Even now, while the writs were out for a new parliament, commissioners were appointed to raise money "by impositions or otherwise, as they should find most convenient in a case of such inevitable necessity, wherein form and circumstance must be dispensed with rather than the substance be lost and hazarded;"[649] and the levying of ship-money was already debated in the council. Anticipating, as indeed was natural, that this House of Commons would correspond as ill to the king's wishes as their predecessors, his advisers were preparing schemes more congenial, if they could be rendered effective, to the spirit in which he was to govern. A contract was entered into for transporting some troops and a considerable quantity of arms from Flanders into England, under circumstances at least highly suspicious, and which, combined with all the rest that appears of the court policy at that time, leaves no great doubt on the mind that they were designed to keep under the people, while the business of contribution was going forward.[650] Shall it be imputed as a reproach to the Cokes, the Seldens, the Glanvils, the Pyms, the Eliots, the Philipses, of this famous parliament, that they endeavoured to devise more effectual restraints than the law had hitherto imposed on a prince who had snapped like bands of tow the ancient statutes of the land, to remove from his presence counsellors, to have been misled by whom was his best apology, and to subject him to an entire dependence on his people for the expenditure of government, as the surest pledge of his obedience to the laws? _Petition of Right._--The principal matters of complaint taken up by the Commons in this session were, the exaction of money under the name of loans; the commitment of those who refused compliance, and the late decision of the king's bench, remanding them upon a habeas corpus; the billeting of soldiers on private persons, which had occurred in the last year, whether for convenience or for purposes of intimidation and annoyance; and the commissions to try military offenders by martial law--a procedure necessary within certain limits to the discipline of an army, but unwarranted by the constitution of this country which was little used to any regular forces, and stretched by the arbitrary spirit of the king's administration beyond all bounds.[651] These four grievances or abuses form the foundation of the Petition of Right, presented by the Commons in the shape of a declaratory statute. Charles had recourse to many subterfuges in hopes to elude the passing of this law; rather perhaps through wounded pride, as we may judge from his subsequent conduct, than such apprehension that it would create a serious impediment to his despotic schemes. He tried to persuade them to acquiesce in his royal promise not to arrest any one without just cause, or in a simple confirmation of the Great Charter, and other statutes in favour of liberty. The peers, too pliant in this instance to his wishes, and half receding from the patriot banner they had lately joined, lent him their aid by proposing amendments (insidious in those who suggested them, though not in the body of the house), which the Commons firmly rejected.[652] Even when the bill was tendered to him for that assent, which it had been necessary for the last two centuries that the king should grant or refuse in a word, he returned a long and equivocal answer, from which it could only be collected that he did not intend to remit any portion of what he had claimed as his prerogative. But on an address from both houses for a more explicit answer, he thought fit to consent to the bill in the usual form. The Commons, of whose harshness towards Charles his advocates have said so much, immediately passed a bill for granting five subsidies, about £350,000; a sum not too great for the wealth of the kingdom or for his exigencies, but considerable according to the precedents of former times, to which men naturally look.[653] The sincerity of Charles in thus according his assent to the Petition of Right may be estimated by the following very remarkable conference which he held on the subject with his judges. Before the bill was passed, he sent for the two chief justices, Hyde and Richardson, to Whitehall; and propounded certain questions, directing that the other judges should be assembled in order to answer them. The first question was, "Whether in no case whatsoever the king may not commit a subject without showing cause?" To which the judges gave an answer the same day under their hands, which was the next day presented to his majesty by the two chief justices in these words: "We are of opinion that, by the general rule of law, the cause of commitment by his majesty ought to be shown; yet some cases may require such secrecy, that the king may commit a subject without showing the cause for a convenient time." The king then delivered them a second question, and required them to keep it very secret, as the former: "Whether, in case a habeas corpus be brought, and a warrant from the king without any general or special cause returned, the judges ought to deliver him before they understand the cause from the king?" Their answer was as follows: "Upon a habeas corpus brought for one committed by the king, if the cause be not specially or generally returned, so as the court may take knowledge thereof, the party ought by the general rule of law to be delivered. But, if the case be such that the same requireth secrecy, and may not presently be disclosed, the court of discretion may forbear to deliver the prisoner for a convenient time, to the end the court may be advertised of the truth thereof." On receiving this answer, the king proposed a third question: "Whether, if the king grant the Commons' petition, he doth not thereby exclude himself from committing or restraining a subject for any time or cause whatsoever, without showing a cause?" The judges returned for answer to this important query: "Every law, after it is made, hath its exposition, and so this petition and answer must have an exposition as the case in the nature thereof shall require to stand with justice; which is to be left to the courts of justice to determine, which cannot particularly be discovered until such case shall happen. And although the petition be granted, there is no fear of conclusion as is intimated in the question."[654] The king, a very few days afterwards gave his _first_ answer to the Petition of Right. For even this indirect promise of compliance, which the judges gave him, did not relieve him from apprehensions that he might lose the prerogative of arbitrary commitment. And though, after being beaten from this evasion, he was compelled to accede in general terms to the petition, he had the insincerity to circulate one thousand five hundred copies of it through the country, after the prorogation, with his first answer annexed; an attempt to deceive without the possibility of success.[655] But instances of such ill faith, accumulated as they are through the life of Charles, render the assertion of his sincerity a proof either of historical ignorance, or of a want of moral delicacy. The Petition of Right, as this statute is still called, from its not being drawn in the common form of an act of parliament, after reciting the various laws which have established certain essential privileges of the subject, and enumerating the violations of them which had recently occurred, in the four points of illegal exactions, arbitrary commitments, quartering of soldiers or sailors, and infliction of punishment by martial law, prays the king, "That no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge without common consent by act of parliament; and that none be called to answer or take such oath, or to give attendance, or be confined or otherwise molested or disquieted concerning the same, or for refusal thereof; and that no freeman in any such manner as is before mentioned be imprisoned or detained; and that your majesty would be pleased to remove the said soldiers and marines, and that your people may not be so burthened in time to come; and that the aforesaid commissions for proceeding by martial law may be revoked and annulled; and that hereafter no commissions of the like nature may issue forth to any person or persons whatever, to be executed as aforesaid, lest by colour of them any of your majesty's subjects be destroyed or put to death contrary to the laws and franchises of the land."[656] _Tonnage and poundage disputed._--It might not unreasonably be questioned whether the language of this statute were sufficiently general to comprehend duties charged on merchandise at the outports, as well as internal taxes and exactions, especially as the former had received a sort of sanction, though justly deemed contrary to law, by the judgment of the court of exchequer in Bates's case. The Commons, however, were steadily determined not to desist till they should have rescued their fellow-subjects from a burthen as unwarrantably imposed as those specifically enumerated in their Petition of Right. Tonnage and poundage, the customary grant of every reign, had been taken by the present king without consent of parliament; the Lords having rejected, as before-mentioned, a bill that limited it to a single year. The house now prepared a bill to grant it, but purposely delayed its passing; in order to remonstrate with the king against his unconstitutional anticipation of their consent. They declared "that there ought not any imposition to be laid upon the goods of merchants, exported or imported, without common consent by act of parliament; that tonnage and poundage, like other subsidies, sprung from the free grant of the people; that when impositions had been laid on the subjects' goods and merchandises without authority of law, which had very seldom occurred, they had, on complaint in parliament, been forthwith relieved; except in the late king's reign, who, through evil counsel, had raised the rates and charges to the height at which they then were." They conclude, after repeating their declaration that the receiving of tonnage and poundage and other impositions not granted by parliament is a breach of the fundamental liberties of this kingdom, and contrary to the late petition of right, with most humbly beseeching his majesty to forbear any further receiving of the same, and not to take it in ill part from those of his loving subjects who should refuse to make payment of any such charges without warrant of law.[657] The king anticipated the delivery of this remonstrance by proroguing the parliament. Tonnage and poundage, he told them, was what he had never meant to give away, nor could possibly do without. By this abrupt prorogation, while so great a matter was unsettled, he trod back his late footsteps, and dissipated what little hopes might have arisen from his tardy assent to the Petition of Right. During the interval before the ensuing session, those merchants, among whom Chambers, Rolls, and Vassal are particularly to be remembered with honour, who gallantly refused to comply with the demands of the custom house, had their goods distrained, and on suing writs of replevin, were told by the judges that the king's right, having been established in the case of Bates, could no longer be disputed.[658] Thus the Commons re-assembled, by no means less inflamed against the king's administration than at the commencement of the preceding session. Their proceedings were conducted with more than usual warmth.[659] Buckingham's death, which had occurred since the prorogation, did not allay their resentment against the advisers of the Crown. But the king, who had very much lowered his tone in speaking of tonnage and poundage, and would have been content to receive it as their grant, perceiving that they were bent on a full statutory recognition of the illegality of impositions without their consent, and that they had opened a fresh battery on another side, by mingling in certain religious disputes in order to attack some of his favourite prelates, took the step, to which he was always inclined, of dissolving this third parliament. _Religious differences._--The religious disputes to which I have just alluded are chiefly to be considered, for the present purpose, in their relation to those jealousies and resentments springing out of the ecclesiastical administration, which during the reigns of the two first Stuarts furnished unceasing food to political discontent. James having early shown his inflexible determination to restrain the puritans, the bishops proceeded with still more rigour than under Elizabeth. No longer thwarted, as in her time, by an unwilling council, they succeeded in exacting a general conformity to the ordinances of the church. It had been solemnly decided by the judges in the queen's reign, and in 1604, that, although the statute establishing the high commission court did not authorise it to deprive ministers of their benefices, yet this law being only in affirmation of the queen's inherent supremacy, she might, by virtue of that, regulate all ecclesiastical matters at her pleasure, and erect courts with such powers as she should think fit. Upon this somewhat dangerous principle, Archbishop Bancroft deprived a considerable number of puritan clergymen;[660] while many more, finding that the interference of the Commons in their behalf was not regarded, and that all schemes of evasion were come to an end, were content to submit to the obnoxious discipline. But their affections being very little conciliated by this coercion, there remained a large party within the bosom of the established church, prone to watch for and magnify the errors of their spiritual rulers. These men preserved the name of puritans. Austere in their lives, while many of the others were careless or irregular, learned as a body comparatively with the opposite party, implacably averse to everything that could be construed into an approximation to popery, they acquired a degree of respect from grave men, which would have been much more general, had they not sometimes given offence by a moroseness and even malignity of disposition, as well as by a certain tendency to equivocation and deceitfulness; faults, however, which so frequently belong to the weaker party under a rigorous government that they scarcely afford a marked reproach against the puritans. They naturally fell in with the patriotic party in the House of Commons, and kept up throughout the kingdom a distrust of the Crown, which has never been so general in England as when connected with some religious apprehensions. _Growth of high church tenets._--The system pursued by Bancroft and his imitators, Bishops Neile and Laud, with the approbation of the king, far opposed to the healing counsels of Burleigh and Bacon, was just such as low-born and little-minded men, raised to power by fortune's caprice, are ever found to pursue. They studiously aggravated every difference, and irritated every wound. As the characteristic prejudice of the puritans was so bigoted an abhorrence of the Romish faith, that they hardly deemed its followers to deserve the name of Christians, the prevailing high church party took care to shock that prejudice by somewhat of a retrograde movement, and various seeming, or indeed real, accommodations of their tenets to those of the abjured religion. They began by preaching the divine right, as it is called, or absolute indispensability, of episcopacy;[661] a doctrine of which the first traces, as I apprehend, are found about the end of Elizabeth's reign. They insisted on the necessity of episcopal succession regularly derived from the apostles. They drew an inference from this tenet, that ordinations by presbyters were in all cases null. And as this affected all the reformed churches in Europe except their own, the Lutherans not having preserved the succession of their bishops, while the Calvinists had altogether abolished that order, they began to speak of them not as brethren of the same faith, united in the same cause, and distinguished only by differences little more material than those of political commonwealths (which had been the language of the church of England ever since the Reformation), but as aliens to whom they were not at all related, and schismatics with whom they held no communion; nay, as wanting the very essence of a Christian society. This again brought them nearer, by irresistible consequence, to the disciples of Rome, with becoming charity, but against the received creed of the puritans and perhaps against their own articles, they all acknowledged to be a part of the catholic church, while they were withholding that appellation, expressly or by inference, from Heidelberg and Geneva. _Differences as to the observance of Sunday._--The founders of the English reformation, after abolishing most of the festivals kept before that time, had made little or no change as to the mode of observance of those they retained. Sundays and holidays stood much on the same footing as days on which no work except for good cause was to be performed, the service of the church was to be attended, and any lawful amusement might be indulged in.[662] A just distinction, however, soon grew up; an industrious people could spare time for very few holidays; and the more scrupulous party, while they slighted the church festivals as of human appointment, prescribed a stricter observance of the Lord's day. But it was not till about 1595 that they began to place it very nearly on the footing of the Jewish sabbath, interdicting not only the slightest action of worldly business, but even every sort of pastime and recreation; a system which, once promulgated, soon gained ground as suiting their atrabilious humour, and affording a new theme of censure on the vices of the great.[663] Those who opposed them on the high church side, not only derided the extravagance of the Sabbatarians, as the others were called, but pretended that the commandment having been confined to the Hebrews, the modern observance of the first day of the week as a season of rest and devotion was an ecclesiastical institution, and in no degree more venerable than that of the other festivals or the season of Lent, which the puritans stubbornly despised.[664] Such a controversy might well have been left to the usual weapons. But James I., or some of the bishops to whom he listened, bethought themselves that this might serve as a test of puritan ministers. He published accordingly a declaration to be read in churches, permitting all lawful recreations on Sunday after divine service, such as dancing, archery, May-games, and morrice-dances, and other usual sports; but with a prohibition of bear-hunting and other unlawful games. No recusant, or any one who had not attended the church service, was entitled to this privilege; which might consequently be regarded as a bounty on devotion. The severe puritan saw it in no such point of view. To his cynical temper, May-games and morrice-dances were hardly tolerable on six days of the week; they were now recommended for the seventh. And this impious licence was to be promulgated in the church itself. It is indeed difficult to explain so unnecessary an insult on the precise clergy, but by supposing an intention to harass those who should refuse compliance.[665] But this intention, from whatever cause, perhaps through the influence of Archbishop Abbot, was not carried into effect; nor was the declaration itself enforced till the following reign. The House of Commons displayed their attachment to the puritan maxims, or their dislike of the prelatical clergy, by bringing in bills to enforce a greater strictness in this respect. A circumstance that occurred in the session of 1621 will serve to prove their fanatical violence. A bill having been brought in "for the better observance of the Sabbath, usually called Sunday," one Mr. Shepherd, sneering at the puritans, remarked that, as Saturday was dies Sabbati, this might be entitled a bill for the observance of Saturday, commonly called Sunday. This witticism brought on his head the wrath of that dangerous assembly. He was reprimanded on his knees, expelled the house, and when he saw what befell poor Floyd, might deem himself cheaply saved from their fangs with no worse chastisement.[666] Yet when the upper house sent down their bill with "the Lord's day" substituted for "the Sabbath," observing, "that people do now much incline to words of Judaism," the Commons took no exception.[667] The use of the word Sabbath instead of Sunday became in that age a distinctive mark of the puritan party. _Arminian controversy._--A far more permanent controversy sprang up about the end of the same reign, which afforded a new pretext for intolerance and a fresh source of mutual hatred. Every one of my readers is acquainted more or less with the theological tenets of original sin, free will, and predestination, variously taught in the schools, and debated by polemical writers for so many centuries; and few can be ignorant that the articles of our own church, as they relate to these doctrines, have been very differently interpreted, and that a controversy about their meaning has long been carried on with a pertinacity which could not have continued on so limited a topic, had the combatants been merely influenced by the love of truth. Those who have no bias to warp their judgment will not perhaps have much hesitation in drawing their line between, though not at an equal distance between, the conflicting parties. It appears, on the other hand, that the articles are worded on some of these doctrines with considerable ambiguity; whether we attribute this to the intrinsic obscurity of the subject, to the additional difficulties with which it had been entangled by theological systems, to discrepancy of opinion in the compilers, or to their solicitude to prevent disunion by adopting formularies which men of different sentiments might subscribe. It is also manifest that their framers came, as it were, with averted eyes to the Augustinian doctrine of predestination, and wisely reprehended those who turned their attention to a system so pregnant with objections, and so dangerous, when needlessly dwelt upon, to all practical piety and virtue. But, on the other hand, this very reluctance to inculcate the tenet is so expressed as to manifest their undoubting belief in it; nor is it possible either to assign a motive for inserting the seventeenth article, or to give any reasonable interpretation to it, upon the theory which at present passes for orthodox in the English church. And upon other subjects intimately related to the former, such as the penalty of original sin and the depravation of human nature, the articles, after making every allowance for want of precision, seem totally irreconcilable with the scheme usually denominated Arminian. The force of those conclusions, which we must, in my judgment, deduce from the language of these articles, will be materially increased by that appeal of contemporary and other early authorities, to which recourse has been had in order to invalidate them. Whatever doubts may be raised as to the Calvinism of Cranmer and Ridley, there can surely be no room for any as to the chiefs of the Anglican church under Elizabeth. We find explicit proofs that Jewel, Nowell, Sandys, Cox, professed to concur with the reformers of Zurich and Geneva in every point of doctrine.[668] The works of Calvin and Bullinger became textbooks in the English universities.[669] Those who did not hold the predestinarian theory were branded with reproach by the names of free-willers and Pelagians.[670] And when the opposite tenets came to be advanced, as they were at Cambridge about 1590, a clamour was raised as if some unusual heresy had been broached. Whitgift, with the concurrence of some other prelates, in order to withstand its progress, published what were called the Lambeth articles, containing the broadest and most repulsive declaration of all the Calvinistic tenets. But, Lord Burleigh having shown some disapprobation, these articles never obtained any legal sanction.[671] These more rigorous tenets, in fact, especially when so crudely enounced, were beginning to give way. They had been already abandoned by the Lutheran church. They had long been opposed in that of Rome by the Franciscan order, and latterly by the jesuits. Above all, the study of the Greek fathers, with whom the first reformers had been little conversant, taught the divines of a more learned age, that men of as high a name as Augustin, and whom they were prone to over-value, had entertained very different sentiments.[672] Still the novel opinions passed for heterodox, and were promulgated with much vacillation and indistinctness. When they were published in unequivocal propositions by Arminius and his school, James declared himself with vehemence against this heresy.[673] He not only sent English divines to sit in the synod of Dort, where the Calvinistic system was fully established, but instigated the proceedings against the remonstrants with more of theological pedantry than charity or decorum.[674] Yet this inconsistent monarch within a very few years was so wrought on by one or two favourite ecclesiastics, who inclined towards the doctrines condemned in that assembly, that openly to maintain the Augustinian system became almost a sure means of exclusion from preferment in our church. This was carried to its height under Charles. Laud, his sole counsellor in ecclesiastical matters, advised a declaration enjoining silence on the controverted points; a measure by no means unwise, if it had been fairly acted upon. It is alleged, however, that the preachers on one side only were silenced, the printers of books on one side censured in the star-chamber, while full scope was indulged to the opposite sect.[675] The House of Commons, especially in their last session, took up the increase of Arminianism as a public grievance. It was coupled in their remonstrances with popery, as a new danger to religion, hardly less terrible than the former. This bigoted clamour arose in part from the nature of their own Calvinistic tenets, which, being still prevalent in the kingdom, would, independently of all political motives, predominate in any popular assembly. But they had a sort of excuse for it in the close, though accidental and temporary, connection that subsisted between the partisans of these new speculative tenets and those of arbitrary power; the churchmen who receded most from Calvinism being generally the zealots of prerogative. They conceived also that these theories, conformable in the main to those most countenanced in the church of Rome, might pave the way for that restoration of her faith which from so many other quarters appeared to threaten them. Nor was this last apprehension so destitute of all plausibility as the advocates of the two first Stuarts have always pretended it to be. _State of catholics under James._--James, well instructed in the theology of the reformers, and inured himself to controversial dialectics, was far removed in point of opinion from any bias towards the Romish creed. But he had, while in Scotland, given rise to some suspicions at the court of Elizabeth, by a little clandestine coquetry with the pope, which he fancied to be a politic means of disarming enmity.[676] Some knowledge of this, probably, as well as his avowed dislike of sanguinary persecution, and a foolish reliance on the trifling circumstance that one if not both of his parents had professed their religion, led the English catholics to expect a great deal of indulgence, if not support, at his hands. This hope might receive some encouragement from his speech on opening the parliament of 1604, wherein he intimated his design to revise and explain the penal laws, "which the judges might perhaps," he said, "in times past have too rigorously interpreted." But the temper of those he addressed was very different. The catholics were disappointed by an act inflicting new penalties on recusants, and especially debarring them from educating their children according to their consciences.[677] The administration took a sudden turn towards severity; the prisons were filled, the penalties exacted, several suffered death,[678] and the general helplessness of their condition impelled a few persons (most of whom had belonged to what was called the Spanish party in the last reign) to the gunpowder conspiracy, unjustly imputed to the majority of catholics, though perhaps extending beyond those who appeared in it.[679] We cannot wonder that a parliament so narrowly rescued from personal destruction endeavoured to draw the cord still tighter round these dangerous enemies. The statute passed on this occasion is by no means more harsh than might be expected. It required not only attendance on worship, but participation in the communion, as a test of conformity, and gave an option to the king of taking a penalty of £20 a month from recusants, or two-thirds of their lands. It prescribed also an oath of allegiance, the refusal of which incurred the penalties of a præmunire. This imported that, notwithstanding any sentence of deprivation or excommunication by the pope, the taker would bear true allegiance to the king, and defend him against any conspiracies which should be made by reason of such sentence or otherwise, and do his best endeavour to disclose them; that he from his heart abhorred, detested, and abjured as impious and heretical, the damnable doctrine and position that princes, excommunicated or deprived by the pope, may be deposed or murdered by their subjects, or any other whatsoever; and that he did not believe that the pope or any other could absolve him from this oath.[680] Except by cavilling at one or two words, it seemed impossible for the Roman catholics to decline so reasonable a test of loyalty, without justifying the worst suspicions of protestant jealousy. Most of the secular priests in England, asking only a connivance in the exercise of their ministry, and aware how much the good work of reclaiming their apostate countrymen was retarded by the political obloquy they incurred, would have willingly acquiesced in the oath. But the court of Rome, not yet receding an inch from her proudest claims, absolutely forbade all catholics to abjure her deposing power by this test, and employed Bellarmine to prove its unlawfulness. The king stooped to a literary controversy with this redoubted champion, and was prouder of no exploit of his life than his answer to the cardinal's book; by which he incurred the contempt of foreign courts and of all judicious men.[681] Though neither the murderous conspiracy of 1605, nor this refusal to abjure the principles on which it was founded, could dispose James to persecution, or even render the papist so obnoxious in his eyes as the puritan; yet he was long averse to anything like a general remission of the penal laws. In sixteen instances after this time, the sanguinary enactments of his predecessor were enforced, but only perhaps against priests who refused the oath;[682] the catholics enjoyed on the whole somewhat more indulgence than before, in respect to the private exercise of their religion; at least enough to offend narrow-spirited zealots, and furnish pretext for the murmurs of a discontented parliament, but under condition of paying compositions for recusancy; a regular annual source of revenue which, though apparently trifling in amount, the king was not likely to abandon, even if his notions of prerogative, and the generally received prejudices of that age, had not determined him against an express toleration.[683] In the course, however, of that impolitic negotiation, which exposed him to all eyes as the dupe and tool of the court of Madrid, James was led on to promise concessions for which his protestant subjects were ill prepared. That court had wrought on his feeble mind by affected coyness about the infanta's marriage, with two private aims; to secure his neutrality in the war of the Palatinate, and to obtain better terms for the English catholics. Fully successful in both ends, it would probably have at length permitted the union to take place, had not Buckingham's rash insolence broken off the treaty; but I am at a loss to perceive the sincere and even generous conduct which some have found in the Spanish council during this negotiation.[684] The king acted with such culpable weakness, as even in him excites our astonishment. Buckingham, in his first eagerness for the marriage on arriving in Spain, wrote to ask if the king would acknowledge the pope's spiritual supremacy, as the surest means of success. James professed to be much shocked at this, but offered to recognise his jurisdiction as patriarch of the west, to whom ecclesiastical appeals might ultimately be made; a concession as incompatible with the code of our protestant laws as the former. Yet with this knowledge of his favourite's disposition, he gave the prince and him a written promise to perform whatever they should agree upon with the court of Madrid.[685] On the treaty being almost concluded, the king, prince, and privy council swore to observe certain stipulated articles, by which the infanta was not only to have the exercise of her religion, but the education of her children till ten years of age. But the king was also sworn to private articles; that no penal laws should be put in force against the catholics, that there should be a perpetual toleration of their religion in private houses, that he and his son would use their authority to make parliament confirm and ratify these articles, and revoke all laws (as it is with strange latitude expressed) containing anything repugnant to the Roman catholic religion, and that they would not consent to any new laws against them. The Prince of Wales separately engaged to procure the suspension or abrogation of the penal laws within three years, and to lengthen the term for the mother's education of their children from ten years to twelve, if it should be in his own power. He promised also to listen to catholic divines, whenever the infanta should desire it.[686] These secret assurances, when they were whispered in England, might not unreasonably excite suspicion of the prince's wavering in his religion, which he contrived to aggravate by an act as imprudent as it was reprehensible. During his stay at Madrid, while his inclinations were still bent on concluding the marriage, the sole apparent obstacle being the pope's delay in forwarding the dispensation, he wrote a letter to Gregory XV., in reply to one received from him, in language evidently intended to give an impression of his favourable dispositions towards the Romish faith. The whole tenor of his subsequent life must have satisfied every reasonable inquirer into our history, of Charles's real attachment to the Anglican church; nor could he have had any other aim than to facilitate his arrangements with the court of Rome by this deception. It would perhaps be uncandid to judge severely a want of ingenuousness, which youth, love, and bad counsels may extenuate; yet I cannot help remarking that the letter is written with the precautions of a veteran in dissimulation; and, while it is full of what might raise expectation, contains no special pledge that he could be called on to redeem. But it was rather presumptuous to hope that he could foil the subtlest masters of artifice with their own weapons.[687] James, impatient for this ill-omened alliance, lost no time in fulfilling his private stipulations with Spain. He published a general pardon of all penalties already incurred for recusancy. It was designed to follow this up by a proclamation prohibiting the bishops, judges, and other magistrates to execute any penal statute against the catholics. But the lord keeper, Bishop Williams, hesitated at so unpopular a stretch of power.[688] And, the rupture with Spain ensuing almost immediately, the king, with a singular defiance of all honest men's opinion, though the secret articles of the late treaty had become generally known, declared in his first speech to parliament in 1624, that "he had only thought good sometimes to wink and connive at the execution of some penal laws, and not to go on so rigorously as at other times, but not to dispense with any or to forbid or alter any that concern religion; he never permitted or yielded, he never did think it with his heart, nor spoke it with his mouth."[689] When James soon after this, not yet taught by experience to avoid a catholic alliance, demanded the hand of Henrietta Maria for his son, Richlieu thought himself bound by policy and honour as well as religion to obtain the same or greater advantages for the English catholics than had been promised in the former negotiation. Henrietta was to have the education of her children till they reached the age of twelve; thus were added two years, at a time of life when the mind becomes susceptible of lasting impressions, to the term at which, by the treaty of Spain, the mother's superintendence was to cease.[690] Yet there is the strongest reason to believe that this condition was merely inserted for the honour of the French Crown, with a secret understanding that it should never be executed.[691] In fact, the royal children were placed at a very early age under protestant governors of the king's appointment; nor does Henrietta appear to have ever insisted on her right. That James and Charles should have incurred the scandal of this engagement, since the articles, though called private, must be expected to transpire, without any real intentions of performing it, is an additional instance of that arrogant contempt of public opinion which distinguished the Stuart family. It was stipulated in the same private articles, that prisoners on the score of religion should be set at liberty, and that none should be molested in future.[692] These promises were irregularly fulfilled, according to the terms on which Charles stood with his brother-in-law. Sometimes general orders were issued to suspend all penal laws against papists; again, by a capricious change of policy, all officers and judges are directed to proceed in their execution; and this severity gave place in its turn to a renewed season of indulgence. If these alterations were not very satisfactory to the catholics, the whole scheme of lenity displeased and alarmed the protestants. Tolerance, in any extensive sense, of that proscribed worship was equally abhorrent to the prelatist and the puritan; though one would have winked at its peaceable and domestic exercise, which the other was zealous to eradicate. But, had they been capable of more liberal reasoning upon this subject, there was enough to justify their indignation at this attempt to sweep away the restrictive code established by so many statutes, and so long deemed essential to the security of their church, by an unconstitutional exertion of the prerogative, prompted by no more worthy motive than compliance with a foreign power, and tending to confirm suspicions of the king's wavering between the two religions, or his indifference to either. In the very first months of his reign, and while that parliament was sitting, which has been reproached for its parsimony, he sent a fleet to assist the French king in blocking up the port of Rochelle; and with utter disregard of the national honour, ordered the admiral, who reported that the sailors would not fight against protestants, to sail to Dieppe, and give up his ships into the possession of France.[693] His subsequent alliance with the Hugonot party in consequence merely of Buckingham's unwarrantable hostility to France, founded on the most extraordinary motives, could not redeem, in the eyes of the nation, this instance of lukewarmness, to say the least, in the general cause of the Reformation. Later ages have had means of estimating the attachment of Charles the First to protestantism, which his contemporaries in that early period of his reign did not enjoy; and this has led some to treat the apprehensions of parliament as either insincere or preposterously unjust. But can this be fairly pretended by any one who has acquainted himself with the course of proceedings on the Spanish marriage, the whole of which was revealed by the Earl of Bristol to the House of Lords? Was there nothing, again, to excite alarm in the frequent conversions of persons of high rank to popery, in the more dangerous partialities of many more, in the evident bias of certain distinguished churchmen to tenets rejected at the Reformation? The course pursued with respect to religious matters after the dissolution of parliament in 1629, to which I shall presently advert, did by no means show the misgivings of that assembly to have been ill-founded. It was neither, however, the Arminian opinions of the higher clergy, nor even their supposed leaning towards those of Rome, that chiefly rendered them obnoxious to the Commons. They had studiously inculcated that resistance to the commands of rulers was in every conceivable instance a heinous sin; a tenet so evidently subversive of all civil liberty that it can be little worth while to argue about right and privilege, wherever it has obtained a real hold on the understanding and conscience of a nation. This had very early been adopted by the Anglican reformers, as a barrier against the disaffection of those who adhered to the ancient religion, and in order to exhibit their own loyalty in a more favourable light. The homily against wilful disobedience and rebellion was written on occasion of the rising of the northern earls in 1569, and is full of temporary and even personal allusions.[694] But the same doctrine is enforced in others of those compositions, which enjoy a kind of half authority in the English church. It is laid down in the canons of convocation in 1606. It is very frequent in the writings of English divines, those especially who were much about the court. And an unlucky preacher at Oxford, named Knight, about 1622, having thrown out some intimation that subjects oppressed by their prince on account of religion might defend themselves by arms; that university, on the king's highly resenting such heresy, not only censured the preacher (who had the audacity to observe that the king by then sending aid to the French Hugonots of Rochelle, as was rumoured to be designed, had sanctioned his position), but pronounced a solemn decree that it is in no case lawful for subjects to make use of force against their princes, nor to appear offensively or defensively in the field against them. All persons promoted to degrees were to subscribe this article, and to take an oath that they not only at present detested the opposite opinion, but would at no future time entertain it. A ludicrous display of the folly and despotic spirit of learned academies![695] Those, however, who most strenuously denied the abstract right of resistance to unlawful commands, were by no means obliged to maintain the duty of yielding them an active obedience. In the case of religion, it was necessary to admit that God was rather to be obeyed than man. Nor had it been pretended, except by the most servile churchmen, that subjects had no positive rights, in behalf of which they might decline compliance with illegal requisitions. This, however, was openly asserted in the reign of Charles. Those who refused the general loan of 1626, had to encounter assaults from very different quarters, and were not only imprisoned, but preached at. Two sermons by Sibthorp and Mainwaring excited particular attention. These men, eager for preferment which they knew the readiest method to attain, taught that the king might take the subject's money at his pleasure, and that no one might refuse his demand, on penalty of damnation. "Parliaments," said Mainwaring, "were not ordained to contribute any right to the king, but for the more equal imposing and more easy exacting of that which unto kings doth appertain by natural and original law and justice, as their proper inheritance annexed to their imperial Crowns from their birth."[696] These extravagances of rather obscure men would have passed with less notice, if the government had not given them the most indecent encouragement. Abbot, Archbishop of Canterbury, a man of integrity, but upon that account as well as for his Calvinistic partialities, long since obnoxious to the courtiers, refused to license Sibthorp's sermon, alleging some unwarrantable passages which it contained. For no other cause than this, he was sequestered from the exercise of his archiepiscopal jurisdiction, and confined to a country-house in Kent.[697] The House of Commons, after many complaints of those ecclesiastics, finally proceeded against Mainwaring by impeachment at the bar of the Lords. He was condemned to pay a fine of £1000, to be suspended for three years from his ministry, and to be incapable of holding any ecclesiastical dignity. Yet the king almost immediately pardoned Mainwaring, who became in a few years a bishop, as Sibthorp was promoted to an inferior dignity.[698] _General remarks._--There seems on the whole to be very little ground for censure in the proceedings of this illustrious parliament. I admit that, if we believe Charles the First to have been a gentle and beneficient monarch, incapable of harbouring any design against the liberties of his people, or those who stood forward in defence of their privileges, wise in the choice of his counsellors, and patient in listening to them, the Commons may seem to have carried their opposition to an unreasonable length. But, if he had shown himself possessed with such notions of his own prerogative, no matter how derived, as could bear no effective control from fixed law or from the nation's representatives; if he was hasty and violent in temper, yet stooping to low arts of equivocation and insincerity, whatever might be his estimable qualities in other respects, they could act, in the main, no otherwise than by endeavouring to keep him in the power of parliament, lest his power should make parliament but a name. Every popular assembly, truly zealous in a great cause, will display more heat and passion than cool-blooded men after the lapse of centuries may wholly approve.[699] But so far were they from encroaching, as our Tory writers pretend, on the just powers of a limited monarch, that they do not appear to have conceived, they at least never hinted at, the securities without which all they had obtained or attempted would become ineffectual. No one member of that house, in the utmost warmth of debate, is recorded to have suggested the abolition of the court of star-chamber, or any provision for the periodical meeting of parliament. Though such remedies for the greatest abuses were in reality consonant to the actual unrepealed law of the land; yet, as they implied, in the apprehension of the generality, a retrenchment of the king's prerogative, they had not yet become familiar to their hopes. In asserting the illegality of arbitrary detention, of compulsory loans, of tonnage and poundage levied without consent of parliament, they stood in defence of positive rights won by their fathers, the prescriptive inheritance of Englishmen. Twelve years more of repeated aggressions taught the long parliament what a few sagacious men might perhaps have already suspected, that they must recover more of their ancient constitution from oblivion, that they must sustain its partial weakness by new securities, that, in order to render the existence of monarchy compatible with that of freedom, they must not only strip it of all it had usurped, but of something that was its own. FOOTNOTES: [629] The general temperance and chastity of Charles, and the effect those virtues had in reforming the outward face of the court, are attested by many writers, and especially by Mrs. Hutchinson, whose good word he would not have undeservedly obtained. _Mem. of Col. Hutchinson_, p. 65. I am aware that he was not the perfect saint as well as martyr which his panegyrists represent him to have been; but it is an unworthy office, even for the purpose of throwing ridicule on exaggerated praise, to turn the microscope of history on private life. [630] War had not been declared at Charles's accession, nor at the dissolution of the first parliament. In fact, he was much more set upon it than his subjects. Hume and all his school keep this out of sight. [631] Hume has disputed this, but with little success, even on his own showing. He observes, on an assertion of Wilson, that Buckingham lost his popularity after Bristol arrived, because he proved that the former, while in Spain, had professed himself a papist--that it is false, and _was never said by Bristol_. It is singular that Hume should know so positively what Bristol did not say in 1624, when it is notorious that he said in parliament what nearly comes to the same thing in 1626. See a curious letter in Cabala, p. 224, showing what a combination had been formed against Buckingham, of all descriptions of malcontents. [632] _Parl. Hist._ vol. ii. p. 6. [633] _Id._ 33. [634] The language of Lord-Keeper Coventry in opening the session was very ill calculated for the spirit of the Commons: "If we consider aright, and think of that incomparable distance between the supreme height and majesty of a mighty monarch and the submissive awe and lowliness of loyal subjects, we cannot but receive exceeding comfort and contentment in the frame and constitution of this highest court, wherein not only the prelates, nobles, and grandees, but the commons of all degrees, have their part; and wherein that high majesty doth descend to admit, or rather to invite, the humblest of his subjects to conference and counsel with him," etc. He gave them a distinct hint afterwards that they must not expect to sit long. _Parl. Hist._ 39. [635] _Parl. Hist._ 60. I know of nothing under the Tudors of greater arrogance than this language. Sir Dudley Carleton, accustomed more to foreign negotiations than to an English House of Commons, gave very just offence by descanting on the misery of the people in other countries. "He cautioned them not to make the king out of love with parliaments by incroaching on his prerogative; for in his messages he had told them that he must then use new councils. In all Christian kingdoms there were parliaments anciently, till the monarchs seeing their turbulent spirits, stood upon their prerogatives, and overthrew them all, except with us. In foreign countries the people look not like ours, with store of flesh on their backs; but like ghosts, being nothing but skin and bones, with some thin cover to their nakedness, and wearing wooden shoes on their feet; a misery beyond expression, and that we are yet free from; and let us not lose the repute of a free-born nation by our turbulency in parliament." Rushworth. This was a hint, in the usual arrogant style of courts, that the liberties of the people depended on favour, and not on their own determination to maintain them. [636] _Parl. Hist._ 119; Hatsell, i. 147; Lords' Journals. A few peers refused to join in this. Dr. Lingard has observed that the opposition in the House of Lords was headed by the Earl of Pembroke, who had been rather conspicuous in the late reign, and whose character is drawn by Clarendon in the first book of history. He held ten proxies in the king's first parliament, as Buckingham did thirteen. Lingard, ix. 328. In the second Pembroke had had only five, but the duke still came with thirteen. Lords' Journals, p. 491. This enormous accumulation of suffrages in one person led to an order of the house, which is now its established regulation, that no peer can hold more than two proxies. Lords' Journals, p. 507. [637] _Parl. Hist._ 125; Hatsell, 141. [638] Mr. Brodie has commented rather too severely on Bristol's conduct. Vol. ii. p. 109. That he was "actuated merely by motives of self-aggrandisement," is surely not apparent; though he might be more partial to Spain than we may think right, or even though he might have some bias towards the religion of Rome. The last, however, is by no means proved; for the king's word is no proof in my eyes. [639] See the proceedings on the mutual charges of Buckingham and Bristol in Rushworth, or the _Parliamentary History_. Charles's behaviour is worth noticing. He sent a message to the house, desiring that they would not comply with the earl's request of being allowed counsel; and yielded ungraciously, when the Lords remonstrated against the prohibition. _Parl. Hist._ 97, 132. The attorney-general exhibited articles against Bristol as to facts depending in great measure on the king's sole testimony. Bristol petitioned the house "to take in consideration of what consequence such a precedent might be; and thereon most humbly to move his majesty for the declining, at least, of his majesty's accusation and testimony." _Id._ 98. The house ordered two questions on this to be put to the judges: 1. Whether, in case of treason or felony, the king's testimony was to be admitted or not? 2. Whether words spoken to the prince, who is after king, make any alteration in the case? They were ordered to deliver their opinions three days afterwards. But when the time came, the chief justice informed the house that the attorney-general had communicated to the judges his majesty's pleasure that they should forbear to give an answer. _Id._ 103, 106. Hume says, "Charles himself was certainly deceived by Buckingham, when he corroborated his favourite's narrative by his testimony." But no assertion can be more gratuitous; the supposition indeed is impossible. [640] _Parl. Hist._ 193. If the following letter is accurate, the privy-council themselves were against this dissolution: "Yesterday the Lords sitting in council at Whitehall to argue whether the parliament should be dissolved or not, were all with one voice against the dissolution of it; and to-day, when the lord keeper drew out the commission to have read it, they sent four of their own body to his majesty to let him know how dangerous this abruption would be to the state, and beseech him the parliament might sit but two days--he answered not a minute."--15 June, 1626. Mede's Letters, _ubi supra_. The author expresses great alarm at what might be the consequence of this step. Mede ascribes this to the council; but others, perhaps more probably, to the house of peers. The king's expression "not a minute" is mentioned by several writers. [641] Rushworth, Kennet. [642] Mede's Letters--"On Monday the judges sat in Westminster-hall to persuade the people to pay subsidies; but there arose a great tumultuous shout amongst them: 'A parliament! a parliament! else no subsidies!' The levying of the subsidies, verbally granted in parliament, being propounded to the subsidy men in Westminster, all of them, saving some thirty among five thousand (and they all the king's servants), cried 'A parliament! a parliament!' etc. The same was done in Middlesex on Monday also, in five or six places, but far more are said to have refused the grant. At Hicks's hall the men of Middlesex assembled there, when they had heard a speech for the purpose, made their obeisance; and so went out without any answer affirmative or negative. In Kent the whole county denied, saying that subsidies were matters of too high a nature for them to meddle withal, and that they durst not deal therewith, lest, hereafter they might be called in question." July 22, _et post_. In Harleian MSS. xxxvii. fol. 192, we find a letter from the king to the deputy lieutenant and justices of every county, informing them that he had dissolved the last parliament because the disordered passion of some members of that house, contrary to the good inclination of the greater and wiser sort of them, had frustrated the grant of four subsidies, and three-fifteenths, where they had promised; he therefore enjoins the deputy lieutenants to cause all the troops and bands of the county to be mustered, trained, and ready to march, as he is threatened with invasion; that the justices do divide the county into districts, and appoint in each able persons to collect and receive moneys, promising the parties to employ them in the common defence; to send a list of those who contribute and those who refuse, "that we may hereby be informed who are well affected to our service, and who are otherwise." July 7, 1626. It is evident that the pretext of invasion, which was utterly improbable, was made use of in order to shelter the king's illegal proceedings. [643] Rushworth's Abr. i. 270. [644] The 321st volume of Hargrave MSS. p. 300, contains minutes of a debate at the council-table during the interval between the second and third parliaments of Charles, taken by a counsellor. It was proposed to lay an excise on beer; others suggested that it should be on malt, on account of what was brewed in private houses. It was then debated "how to overcome difficulties, whether by persuasion or force. Persuasion, it was thought, would not gain it; and for judicial courses, it would not hold against the subject that would stand upon the right of his own property, and against the fundamental constitutions of the kingdom. The last resort was to a proclamation; for in star-chamber it might be punishable, and thereupon it rested." There follows much more; it seemed to be agreed that there was such a necessity as might justify the imposition; yet a sort of reluctance is visible even among these timid counsellors. The king pressed it forward much. In the same volume (p. 393) we find other proceedings at the council-table, whereof the subject was, the censuring or punishing of some one who had refused to contribute to the loan of 1626 on the ground of its illegality. The highest language is held by some of the conclave in this debate. Mr. D'Israeli has collected from the same copious reservoir, the manuscripts of the British Museum, several more illustrations, both of the arbitrary proceedings of the council, and of the bold spirit with which they were resisted. _Curiosities of Literature_, New Series, iii. 381. But this ingenious author is too much imbued with "the monstrous faith of many made for one," and sets the private feelings of Charles for an unworthy and dangerous minion, above the liberties and interests of the nation. [645] Rushworth, Kennet. [646] See above, in chap. v. Coke himself, while chief justice, had held that one committed by the privy-council was not bailable by any court in England. _Parl. Hist._ 310. He had nothing to say when pressed with this in the next parliament, but that he had misgrounded his opinion upon a certain precedent, which being nothing to the purpose, he was now assured his opinion was as little to the purpose. _Id._ 325; _State Trials_, iii. 81. [647] _State Trials_, iii. 1-234; _Parl. Hist._ 246, 259, etc.; Rushworth. [648] At the council-table, some proposing a parliament, the king said, he did abominate the name. Mede's Letters, 30th Sept. 1626. [649] Rushworth; Mede's Letters in Harl. MSS. _passim_. [650] Rushworth's Abr. i. 304; Cabala, part ii. 217. See what is said of this by Mr. Brodie, ii. 158. [651] A commission addressed to Lord Wimbledon, 28th Dec. 1625, empowers him to proceed against soldiers or dissolute persons joining with them, who should commit any robberies, etc., which by martial law ought to be punished with death, by such summary course as is agreeable to martial law, etc. Rymer, xviii. 254. Another, in 1626, may be found. P. 763. It is unnecessary to point out how unlike these commissions are to our present mutiny-bills. [652] Bishop Williams, as we are informed by his biographer, though he promoted the petition of right, stickled for the additional clause adopted by the Lords, reserving the king's sovereign power; which very justly exposed him to suspicion of being corrupted. For that he was so is most evident by what follows; where we are told that he had an interview with the Duke of Buckingham, when they were reconciled; and "his grace had the bishop's consent with a little asking, that he would be his grace's faithful servant in the next session of parliament, and was allowed to hold up a seeming enmity, and his own popular estimation, that he might the sooner do the work." Hacket's _Life of Williams_, pp. 77, 80. With such instances of baseness and treachery in the public men of this age, surely the distrust of the Commons was not so extravagant as the school of Hume pretend. [653] The debates and conferences on this momentous subject, especially on the article of the habeas corpus, occupy near two hundred columns in the _New Parliamentary History_, to which I refer the reader. In one of these conferences, the Lords, observing what a prodigious weight of legal ability was arrayed on the side of the petition, very fairly determined to hear counsel for the Crown. One of these, Serjeant Ashley, having argued in behalf of the prerogative in a high tone, such as had been usual in the late reign, was ordered into custody; and the Lords assured the other house, that he had no authority from them for what he had said. _Id._ 327. A remarkable proof of the rapid growth of popular principles! [654] Hargrave MSS. xxxii. 97. [655] _Parl. Hist._ 436. [656] Stat. 3 Car. I. c. 1. Hume has printed in a note the whole statute with the preamble, which I omit for the sake of brevity, and because it may be found in so common a book. [657] _Parl. Hist._ 431. [658] Rushworth Abr. i. 409. [659] _Parl. Hist._ 441, etc. [660] Cawdrey's Case, 5 Reports; Cro. Jac. 37; Neal, p. 432. The latter says, above three hundred were deprived; but Collier reduces them to forty-nine. P. 687. The former writer states the nonconformist ministers at this time in twenty-four counties to have been 754; of course the whole number was much greater. P. 434. This minority was considerable; but it is chiefly to be noticed, that it contained the more exemplary portion of the clergy; no scandalous or absolutely illiterate incumbent, of whom there was a very large number, being a nonconformist. This general enforcement of conformity, however it might compel the majority's obedience, rendered the separation of the incompliant more decided. Neal, 446. Many retired to Holland, especially of the Brownist, or Independent denomination. _Id._ 436. And Bancroft, like his successor Laud, interfered to stop some who were setting out for Virginia. _Id._ 454. [661] Lord Bacon, in his advertisement respecting the _Controversies of the Church of England_, written under Elizabeth, speaks of this notion as newly broached. "Yea and some indiscreet persons have been bold in open preaching to use dishonourable and derogatory speech and censure of the churches abroad; and that so far, as some of our men ordained in foreign parts have been pronounced to be no lawful ministers."--Vol. i. p. 382. It is evident, by some passages in Strype, attentively considered, that natives regularly ordained abroad in the presbyterian churches were admitted to hold preferment in England; the first bishop who objected to them seems to have been Aylmer. Instances, however, of foreigners holding preferment without any re-ordination, may be found down to the civil wars. _Annals of Reformation_, ii. 522, and Appendix, 116; _Life of Grindal_, 271; Collier, ii. 594; Neal, i. 258. The divine right of episcopacy is said to have been laid down by Bancroft, in his famous sermon at Paul's cross, in 1588. But I do not find anything in it to that effect. It is, however, pretty distinctly asserted, if I mistake not the sense, in the canons of 1606. Overall's _Convocation Book_, 179, etc. Yet Laud had been reproved by the university of Oxford in 1604, for maintaining, in his exercise for bachelor of divinity, that there could be no true church without bishops, which was thought to cast a bone of contention between the church of England and the reformed upon the Continent. Heylin's _Life of Laud_, 54. Cranmer and some of the original founders of the Anglican church, so far from maintaining the divine and indispensable right of episcopal government, held bishops and priests to be the same order. [662] See the queen's injunctions of 1559 (_Somers Tracts_, i. 65), and compare preamble of 5 and 6 of Edw. VI. c. 3. [663] The first of these Sabbatarians was a Dr. Bound, whose sermon was suppressed by Whitgift's order. But some years before, one of Martin Mar-prelate's charges against Aylmer was for playing at bowls on Sundays: and the word sabbath as applied to that day may be found occasionally under Elizabeth, though by no means so usual as afterwards. One of Bound's recommendations was that no feasts should be given on that day, "except by lords, knights, and persons of quality;" for which unlucky reservation his adversaries did not forget to deride him. Fuller's _Church History_, p. 227. This writer describes in his quaint style the abstinence from sports produced by this new doctrine; and remarks, what a slight acquaintance with human nature would have taught Archbishop Laud, that "the more liberty people were offered, the less they used it; it was sport for them to refrain from sport." See also Collier, 643; Neal, 386; Strype's _Whitgift_, 530; May's _Hist. of Parliament_, 16. [664] Heylin's _Life of Laud_, 15; Fuller, part ii. p. 76. The regulations enacted at various times since the Reformation for the observance of abstinence in as strict a manner, though not ostensibly on the same grounds, as it is enjoined in the church of Rome, may deserve some notice. A statute of 1548 (2 and 3 Edward VI. c. 19), after reciting that one day or one kind of meat is not more holy, pure, or clean than another, and much else to the same effect, yet "forasmuch as divers of the king's subjects, turning their knowledge therein to gratify their sensuality, have of late more than in times past broken and contemned such abstinence, which hath been used in this realm upon the Fridays and Saturdays, the embering days and other days commonly called vigils, and in the time commonly called Lent, and other accustomed times; the king's majesty considering that due and godly abstinence is a mean to virtue and to subdue men's bodies to their soul and spirit, and considering also especially that fishers and men using the trade of fishing in the sea may thereby the rather be set on work, and that by eating of fish much flesh shall be saved and increased," enacts, after repealing all existing laws on the subject, that such as eat flesh at the forbidden seasons shall incur a penalty of ten shillings, or ten days' imprisonment _without flesh_, and a double penalty for the second offence. The next statute relating to abstinence is one (5th Eliz. c. 5) entirely for the increase of the fishery. It enacts (§ 15, etc.) that no one, unless having a licence, shall eat flesh on fish-days, or on Wednesdays, now made an additional fish-day, under a penalty of £3, or three months' imprisonment. Except that every one having three dishes of sea-fish at his table, might have one of flesh also. But "because no manner of person shall misjudge of the intent of this statute," it is enacted that whosoever shall notify that any eating of fish or forbearing of flesh mentioned therein is of any necessity for the saving of the soul of man, or that it is the service of God, otherwise than as other politic laws are and be; that then such persons shall be punished as spreaders of false news (§ 39 and 40). The act 27th Eliz. c. 11, repeals the prohibition as to Wednesday; and provides that no victuallers shall vend flesh in Lent, nor upon Fridays or Saturdays, under a penalty. The 35th Eliz. c. 7, § 22, reduces the penalty of three pounds or three months' imprisonment, enacted by 5th of Eliz. to one-third. This is the latest statute that appears on the subject. Many proclamations appear to have been issued in order to enforce an observance so little congenial to the propensities of Englishmen. One of those in the first year of Edward was before any statute; and its very words respecting the indifference of meats in a religious sense were adopted by the legislature the next year. Strype's _Eccles. Memor._ ii. 81. In one of Elizabeth's, A.D. 1572, as in the statute of Edward, the political motives of the prohibition seem in some measure associated with the superstition it disclaims; for eating in the season of Lent is called "licentious and carnal disorder, in contempt of God and man, and only to the satisfaction of devilish and carnal appetite;" and butchers, etc., "ministering to such foul lust of the flesh," were severely mulcted. Strype's _Annals_, ii. 208. But in 1576 another proclamation to the same effect uses no such hard words, and protests strongly against any superstitious interpretation of its motive. _Life of Grindal_, p. 226. So also in 1579 (Strype's _Annals_, ii. 608), and, as far as I have observed, in all of a later date, the encouragement of the navy and fishery is set forth as their sole ground. In 1596, Whitgift, by the queen's command, issued letters to the bishops of his province, to take order that the fasting-days, Wednesday and Friday, should be kept, and no suppers eaten, especially on Friday evens. This was on account of the great dearth of that and the preceding year. Strype's _Whitgift_, p. 490. These proclamations for the observance of Lent continued under James and Charles, as late, I presume, as the commencement of the civil war. They were diametrically opposed to the puritan tenets; for, notwithstanding the pretext about the fishery, there is no doubt that the dominant ecclesiastics maintained the observance of Lent as an ordinance of the church. But I suspect that little regard was paid to Friday and Saturday as days of weekly fast. Rymer, xvii. 131, 134, 349; xviii. 268, 282, 961. This abstemious system, however, was only compulsory on the poor. Licences were easily obtained by others from the privy-council in Edward's days, and afterwards from the bishop. They were empowered, with their guests, to eat flesh on all fasting-days for life. Sometimes the number of guests was limited. Thus the Marquis of Winchester had permission for twelve friends; and John Sanford, draper of Gloucester, for two. Strype's _Memorials_, ii. 82. The act above mentioned for encouragement of the fishery, 5th Eliz. c. 5, provides that £1 6_s._ 8_d._ shall be paid for granting every licence, and 6_s._ 8_d._ annually afterwards, to the poor of the parish. But no licence was to be granted for eating beef at any time of the year, or veal from Michaelmas to the first of May. A melancholy privation to our countrymen! but, I have no doubt, little regarded. Strype makes known to us the interesting fact, that Ambrose Potter, of Gravesend, and his wife, had permission from Archbishop Whitgift "to eat flesh and white meats in Lent, during their lives; so that it was done soberly and frugally, cautiously, and avoiding public scandal as much as might be, and giving 6_s._ 8_d._ annually to the poor of the parish." _Life of Whitgift_, 246. The civil wars did not so put an end to the compulsory observance of Lent and fish days but that similar proclamations are found after the Restoration, I know not how long. Kennet's Register, p. 367 and 558. And some orthodox Anglicans continued to make a show of fasting. The following extracts from Pepys' diary are, perhaps, characteristic of the class. "I called for a dish of fish which we had for dinner, this being the first day of Lent; and I do intend to try whether I can keep it or no." Feb. 27, 1661. "Notwithstanding my resolution, yet for want of other victuals, I did eat flesh this Lent, but am resolved to eat as little as I can." [665] Wilson, 709. [666] Debates in parliament, 1621, vol. i. pp. 45, 52. The king requested them not to pass this bill, being so directly against his proclamation. _Id._ 60. Shepherd's expulsion is mentioned in Mede's Letters, Harl. MSS. 389. [667] Vol. ii. 97. Two acts were passed (1 Car. I. c. 1 and 3 Car I. c. 2) for the better observance of Sunday; the former of which gave great annoyance, it seems, to the orthodox party. "Had any such bill," says Heylin, "been offered in King James's time, it would have found a sorry welcome; but this king being under a necessity of compliance with them, resolved to grant them their desires in that particular, to the end that they might grant his also in the aid required, when that obstruction was removed. The Sabbatarians took the benefit of this opportunity for the obtaining of this grant, the first that ever they obtained by all their strugglings, which of what consequence it was we shall see hereafter." _Life of Laud_, p. 129. Yet this statute permits the people lawful sports and pastimes on Sundays within their own parishes. [668] Without loading the page with too many references on a subject so little connected with this work, I mention Strype's _Annals_, vol. i. p. 118, and a letter from Jewel to P. Martyr in Burnet, vol. iii. Appendix 275. [669] Collier, 568. [670] Strype's _Annals_, i. 207, 294. [671] Strype's _Whitgift_, 434-472. [672] It is admitted on all hands that the Greek fathers did not inculcate the predestinarian system. Elizabeth having begun to read some of the fathers, Bishop Cox writes of it with some disapprobation, adverting especially to the Pelagianism of Chrysostom and the other Greeks. Strype's _Annals_, i. 324. [673] Winwood, iii. 293. The intemperate and even impertinent behaviour of James in pressing the states of Holland to inflict some censure or punishment on Vorstius, is well known. But though Vorstius was an Arminian, it was not precisely on account of those opinions that he incurred the king's peculiar displeasure, but for certain propositions as to the nature of the Deity, which James called atheistical, but which were in fact Arian. The letters on this subject in Winwood are curious. Even at this time, the king is said to have spoken moderately of predestination as a dubious point (p. 452), though he had treated Arminius as a mischievous innovator for raising a question about it; and this is confirmed by his letter to the States in 1613. Brandt, iii. 129; and see p. 138; See Collier, p. 711, for the king's sentiments in 1616; also Brandt, iii. 313. [674] Sir Dudley Carleton's _Letters and Negotiations, passim_; Brandt's _History of Reformation in Low Countries_, vol. iii. The English divines sent to this synod were decidedly inclined to Calvinism, but they spoke of themselves as deputed by the king, not by the church of England which they did not represent. [675] There is some obscurity about the rapid transition of the court from Calvinism to the opposite side. It has been supposed that the part taken by James at the synod of Dort was chiefly political, with a view to support the house of Orange against the party headed by Barnevelt. But he was so much more of a theologian than a statesman, that I much doubt whether this will account satisfactorily for his zeal in behalf of the Gomarists. He wrote on the subject with much polemical bitterness, but without reference, so far as I have observed, to any political faction; though Sir Dudley Carleton's letters show that _he_ contemplated the matter as a minister ought to do. Heylin intimates that the king grew "more moderate afterwards, and into a better liking of those opinions which he had laboured to condemn at the synod of Dort." _Life of Laud_, 120. The court language, indeed, shifted so very soon after this, that Antonio de Dominis, the famous half-converted Archbishop of Spalato, is said to have invented the name of doctrinal puritans for those who distinguished themselves by holding the Calvinistic tenets. Yet the synod of Dort was in 1618; while De Dominis left England not later than 1622. Buckingham seems to have gone very warmly into Laud's scheme of excluding the Calvinists. The latter gave him a list of divines on Charles's accession, distinguishing their names by O. and P. for orthodox and puritan; including several tenets in the latter denomination, besides those of the quinquarticular controversy; such as the indispensable observance of the Lord's day, the indiscrimination of bishops and presbyters, etc. _Life of Laud_, 119. The influence of Laud became so great that to preach in favour of Calvinism, though commonly reputed to be the doctrine of the church, incurred punishment in any rank. Davenant, Bishop of Salisbury, one of the divines sent to Dort, and reckoned among the principal theologians of that age, was reprimanded on his knees before the privy-council for this offence. Collier, p. 750. But in James's reign the University of Oxford was decidedly Calvinistic. A preacher, about 1623, having used some suspicious expressions, was compelled to recant them, and to maintain the following theses in the divinity school: Decretum prædestinationis non est conditionale--Gratia sufficiens ad salutem non conceditur omnibus. Wood, ii. 348. And I suppose it continued so in the next reign, so far as the university's opinions could be manifested. But Laud took care that no one should be promoted, as far as he could help it, who held these tenets. [676] Winwood, vol. i. pp. 1, 52, 388; _Lettres d'Ossat_, i. 221; Birch's _Negotiations of Edmondes_, p. 36. These references do not relate to the letter said to have been forged in the king's name, and addressed to Clement VIII. by Lord Balmerino. But Laing, _Hist. of Scotland_, iii. 59, and Birch's _Negotiations_, etc. 177, render it almost certain that this letter was genuine, which indeed has been generally believed by men of sense. James was a man of so little consistency or sincerity that it is difficult to solve the problem of this clandestine intercourse. But it might very likely proceed from his dread of being excommunicated, and, in consequence, assassinated. In a proclamation, commanding all jesuits and priests to quit the realm, dated in 1603, he declares himself personally "so much beholden to the new bishop of Rome for his kind office and private temporal carriage towards us in many things, as we shall ever be ready to requite the same towards him as Bishop of Rome in state and condition of a secular prince." Rymer, xvi. 573. This is explained by a passage in the memoirs of Sully (l. 15). Clement VIII., though before Elizabeth's death he had abetted the project of placing Arabella on the throne, thought it expedient, after this design had failed, to pay some court to James, and had refused to accept the dedication of a work written against him, besides, probably, some other courtesies. There is a letter from the king addressed to the pope, and probably written in 1603, among the Cottonian MSS. Nero B. vi. 9, which shows his disposition to coax and coquet with the Babylonian, against whom he so much inveighs in his printed works. It seems that Clement had so far presumed as to suggest that the Prince of Wales should be educated a catholic; which the king refuses, but not in so strong a manner as he should have done. I cannot recollect whether this letter has been printed, though I can scarcely suppose the contrary. Persons himself began to praise the works of James, and show much hope of what he would do. Cotton, Jul. B. vi. 77. The severities against catholics seem at first to have been practically mitigated. Winwood, ii. 78. Archbishop Hutton wrote to Cecil, complaining of the toleration granted to papists, while the puritans were severely treated. _Id._ p. 40; Lodge, iii. 251. "The former," he says, "partly by this round dealing with the puritans, and partly by some extraordinary favour, have grown mightily in number, courage, and influence."--"If the gospel shall quail, and popery prevail, it will be imputed principally unto your great counsellors, who either procure or yield to grant toleration to some." James told some gentlemen who petitioned for toleration, that the utmost they could expect was connivance. Carte, iii. 711. This seems to have been what he intended through his reign, till importuned by Spain and France to promise more. [677] 1 Jac. I. c. 4. The penalties of recusancy were particularly hard upon women, who, as I have observed in another place, adhered longer to the old religion than the other sex; and still more so upon those who had to pay for their scruples. It was proposed in parliament, but with the usual fate of humane suggestions, that husbands going to church, should not be liable for their wives' recusancy. Carte, 754. But they had the alternative afterwards, by 7 Jac. I. c. 6, of letting their wives lie in prison or paying £10 a month. [678] Lingard, ix. 41, 55. [679] From comparing some passages in Sir Charles Cornwallis's despatches, (Winwood, vol. ii. pp. 143, 144, 153, with others in Birch's account of Sir Thomas Edmondes's negotiations, p. 233, _et seq._) it appears that the English catholics were looking forward at this time to some crisis in their favour, and that even the court of Spain was influenced by their hopes. A letter from Sir Thomas Parry to Edmondes, dated at Paris, 10 Oct. 1605, is remarkable: "Our priests are very busy about petitions to be exhibited to the king's majesty at this parliament, and some further designs upon refusal. These matters are secretly managed by intelligence with their colleagues in those parts where you reside, and with the two nuncios. I think it were necessary for his majesty's service that you found means to have privy spies amongst them, to discover their negotiations. Something is at present in hand amongst these desperate hypocrites, which I trust God shall divert by the vigilant care of his majesty's faithful servants and friends abroad, and prudence of his council at home." Birch, p. 233. There seems indeed some ground for suspicion that the nuncio at Brussels was privy to the conspiracy; though this ought not to be asserted as an historical fact. Whether the offence of Garnet went beyond misprision of treason has been much controverted. The catholic writers maintain that he had no knowledge of the conspiracy, except by having heard it in confession. But this rests altogether on his word; and the prevarication of which he has been proved to be guilty (not to mention the damning circumstance that he was taken at Hendlip in concealment along with the other conspirators), makes it difficult for a candid man to acquit him of a thorough participation in their guilt. Compare Townsend's _Accusations of History against the Church of Rome_ (1825), p. 247, containing extracts from some important documents in the State Paper-Office, not as yet published, with _State Trials_, vol. ii.; and see Lingard, ix. 160, etc. Yet it should be kept in mind that it was easy for a few artful persons to keep on the alert by indistinct communications a credulous multitude whose daily food was rumour; and the general hopes of the English Romanists at the moment are not evidence of their privity to the gunpowder-treason, which was probably contrived late, and imparted to very few. But to deny that there was such a plot, or, which is the same thing, to throw the whole on the contrivance and management of Cecil, as has sometimes been done, argues great effrontery in those who lead, and great stupidity in those who follow. The letter to Lord Monteagle, the discovery of the powder, the simultaneous rising in arms in Warwickshire, are as indisputable as any facts in history. What then had Cecil to do with the plot, except that he hit upon the clue to the dark allusions in the letter to Monteagle, of which he was courtier enough to let the king take the credit? James's admirers have always reckoned this, as he did himself, a vast proof of sagacity; yet there seems no great acuteness in the discovery, even if it had been his own. He might have recollected the circumstances of his father's catastrophe, which would naturally put him on the scent of gunpowder. In point of fact, however, the happy conjecture appears to be Cecil's. Winwood, ii. 170. But had he no previous hint? See Lodge, iii. 301. The Earl of Northumberland was not only committed to the Tower on suspicion of privity in the plot, but lay fourteen years there, and paid a fine of £11,000 (by composition for £30,000), before he was released. Lingard, ix. 89. It appears almost incredible that a man of his ability, though certainly of a dangerous and discontented spirit, and rather destitute of religion than a zealot for popery, which he did not, I believe, openly profess, should have mingled in so flagitious a design. There is indeed a remarkable letter in Winwood, vol. iii. p. 287, which tends to corroborate the suspicions entertained of him. But this letter is from Salisbury, his inveterate enemy. Every one must agree, that the fine imposed on this nobleman was preposterous. Were we even to admit that suspicion might justify his long imprisonment, a participation in one of the most atrocious conspiracies recorded in history was, if proved, to be more severely punished; if unproved, not at all. [680] 3 Jac. I. c. 4, 5. [681] Carte, iii. 782; Collier, 690; Butler's _Memoirs of Catholics_; Lingard, vol. ix. 97; Aikin, i. 319. It is observed by Collier, ii. 695, and indeed by the king himself, in his _Apology for the Oath of Allegiance_ (edit. 1619), p. 46, that Bellarmine plainly confounds the oath of allegiance with that of supremacy. But this cannot be the whole of the case; it is notorious that Bellarmine protested against any denial of the pope's deposing power. [682] Lingard, ix. 215. Drury, executed in 1607, was one of the twelve priests who, in 1602, had signed a declaration of the queen's right to the crown, notwithstanding her excommunication. But, though he evidently wavered, he could not be induced to say as much now in order to save his life. _State Trials_, ii. 358. [683] Lord Bacon, wise in all things, always recommended mildness towards recusants. In a letter to Villiers, in 1616, he advises that the oath of supremacy should by no means be tendered to recusant magistrates in Ireland; "the new plantation of protestants," he says, "must mate the other party in time." Vol. ii. p. 530. This has not indeed proved true; yet as much, perhaps, for want of following Bacon's advice, as for any other cause. He wished for a like toleration in England. But the king, as Buckingham lets him know, was of a quite contrary opinion; for, "though he would not by any means have a more severe course held than his laws appoint in that case, yet there are many reasons why there should be no mitigation above that which his laws have exerted, and his own conscience telleth him to be fit." He afterwards professes "to account it a baseness in a prince to show such a desire of the match [this was in 1617] as to slack anything in his course of government, much more in propagation of the religion he professeth, for fear of giving hinderance to the match thereby."--Page 562. What a contrast to the behaviour of this same king six years afterwards! The Commons were always dissatisfied with lenity, and complained that the lands of recusants were undervalued; as they must have been, if the king got only £6000 per annum by the compositions. Debates in 1621, vol. i. pp. 24, 91. But he valued those in England and Ireland at £36,000. Lingard, 215, from _Hardwicke Papers_. [684] The absurd and highly blamable conduct of Buckingham has created a prejudice in favour of the court of Madrid. That they desired the marriage is easy to be believed; but that they would have ever sincerely co-operated for the restoration of the Palatinate, or even withdrawn the Spanish troops from it, is neither rendered probable by the general policy of that government, nor by the conduct it pursued in the negotiation. Compare _Hardwicke State Papers_, vol. i.; Cabala, 1, _et post_; Howell's _Letters_; _Clarendon State Papers_, vol. i. _ad initium_, especially p. 13. A very curious paper in the latter collection (p. 14) may be thought, perhaps, to throw light on Buckingham's projects, and account in some measure for his sudden enmity to Spain. During his residence at Madrid in 1623, a secretary who had been dissatisfied with the court revealed to him a pretended secret discovery of gold mines in a part of America, and suggested that they might be easily possessed by any association that could command seven or eight hundred men; and that after having made such a settlement, it would be easy to take the Spanish flotilla, and attempt the conquest of Jamaica and St. Domingo. This made so great an impression on the mind of Buckingham, that, long afterwards in 1628, he entered into a contract with Gustavus Adolphus, who bound himself to defend him against all opposers in the possession of these mines, as an absolute prince and sovereign, on condition of receiving one-tenth of the profits; promising especially his aid against any puritans who might attack him from Barbadoes or elsewhere, and to furnish him with four thousand men and six ships of war, to be paid out of the revenue of the mines. This is a very strange document, if genuine. It seems to show that Buckingham, aware of his unpopularity in England, and that sooner or later he must fall, and led away, as so many were, by the expectation of immense wealth in America, had contrived this arrangement, which was probably intended to take place only in the event of his banishment from England. The share that Gustavus appears to have taken in so wild a plan is rather extraordinary, and may expose the whole to some suspicion. It is not clear how this came among the Clarendon papers; but the indorsement runs: "Presented, and the design attempted and in some measure attained by Cromwell, anno 1652." I should conjecture therefore that some spy of the king's procured the copy from Cromwell's papers. I have since found that Harte had seen a sketch of this treaty, but he does not tell us by what means. _Hist. Gust. Adolph._ i. 130. But that prince, in 1627, laid before the diet of Sweden a plan for establishing a commerce with the West Indies; for which sums of money were subscribed. _Id._ 143. [685] _Hardwicke Papers_, pp. 402, 411, 417. The very curious letters in this collection relative to the Spanish match are the vouchers for my text. It appears by one of Secretary Conway's, since published (Ellis, iii. 154), that the king was in great distress at the engagement for a complete immunity from penal laws for the catholics, entered into by the prince and Buckingham; but, on full deliberation in the council, it was agreed that he must adhere to his promise. This rash promise was the cause of his subsequent prevarications. [686] _Hardwicke Papers_; Rushworth. [687] _Hardwicke Papers_, p. 452, where the letter is printed in Latin. The translation in Wilson, Rushworth, and Cabala, p. 214, is not by any means exact, going in several places much beyond the original. If Hume knew nothing but the translation, as is most probable, we may well be astonished at his way of dismissing this business; that "the prince having received a very civil letter from the pope, he was induced to return a very civil answer." Clarendon saw it in a different light. _Clar. State Papers_, ii. 337. Urban VIII. had succeeded Gregory XV. before the arrival of Charles's letter. He answered it, of course, in a style of approbation, and so as to give the utmost meaning to the prince's compliments, expressing his satisfaction, "cum pontificem Romanum ex officii genere colere princeps Britannus inciperet," etc. Rushworth, vol. i. p. 98. It is said by Howell, who was then on the spot, that the prince never used the service of the church of England while he was at Madrid, though two chaplains, church-plate, etc., had been sent over. Howell's _Letters_, p. 140. Bristol and Buckingham charged each other with advising Charles to embrace the Romish religion; and he himself, in a letter to Bristol, Jan. 21, 1625-6, imputes this to him in the most positive terms. Cabal p. 17, 4to edit. As to Buckingham's willingness to see this step taken, there can, I presume, be little doubt. [688] Rushworth; Cabala, p. 19. [689] _Parl. Hist._ 1375. Both houses, however, joined in an address that the laws against recusants might be put in execution (_Id._ 1408); and the Commons returned again to the charge afterwards. _Idem_, 1484. [690] Rushworth. [691] See a series of letters from Lord Kensington (better known afterwards as Earl of Holland), the king's ambassador at Paris for this marriage-treaty; in the appendix to _Clarendon State Papers_, vol. ii. pp. v. viii. ix. [692] _Hardwicke Papers_, i. 536. Birch, in one of those volumes given by him to the British Museum (and which ought to be published according to his own intention), has made several extracts from the MS. despatches of Tillieres, the French ambassador, which illustrate this negotiation. The pope, it seems, stood off from granting the dispensation, requiring that the English catholic clergy should represent to him their approbation of the marriage. He was informed that the cardinal had obtained terms much more favourable for the catholics than in the Spanish treaty. In short, they evidently fancied themselves to have gained a full assurance of toleration; nor could the match have been effected on any other terms. The French minister writes to Louis XIII. from London, October 6, 1624, that he had obtained a supersedeas of all prosecutions, more than themselves expected, or could have believed possible; "en somme, un acte très publique, et qui fut résolu en plein conseil, le dit roi l'ayant assemblé exprès pour cela le jour d'hier." The pope agreed to appoint a bishop for England, nominated by the King of France. Oct. 22. The oath of allegiance, however, was a stumbling-block; the king could not change it by his own authority, and establish another in parliament, "où la faction des puritains prédomine, de sorte qu'ils peuvent ce qu'ils veulent." Buckingham, however, promised "de nous faire obtenir l'assurance que votre majesté désire tant, que les catholiques de ce pais ne seront jamais inquiétés pour le raison du serment de fidélité, du quel votre majesté a si souvent ouï parler." Dec. 22. He speaks the same day of an audience he had of King James, who promised never to persecute his catholic subjects, nor desire of them any oath which spoke of the pope's spiritual authority, "mais seulement un acte de la reconnoissance de la domination temporelle qui Dieu lui a donnée, et qu'ils auroient en considération de votre majesté, et de la confiance que vous prenez en sa parole, beaucoup plus de liberté qu'ils n'auroient eu en vertu des articles du traité d'Espagne." The French advised that no parliament should be called till Henrietta should come over, "de qui la présence serviroit de bride aux puritains." It is not wonderful, with all this good-will on the part of their court, that the English catholics should now send a letter to request the granting of the dispensation. A few days after, Dec. 26, the ambassador announces the king's letter to the archbishops, directing them to stop the prosecution of catholics, the enlargement of prisoners on the score of religion, and the written promises of the king and prince to let the catholics enjoy more liberty than they would have had by virtue of the treaty with Spain. On the credit of this, Louis wrote on the 23rd of January to request six or eight ships of war to employ against Soubise, the chief of the Hugonots; with which, as is well known, Charles complied in the ensuing summer. The king's letter above mentioned does not, I believe, appear. But his ambassadors, Carlisle and Holland, had promised in his name that he would give a written promise, on the word and honour of a king, which the prince and a secretary of state should also sign, that all his Roman catholic subjects should enjoy more freedom as to their religion than they could have had by any articles agreed on with Spain; not being molested in their persons or property for their profession and exercise of their religion, provided they used their liberty with moderation, and rendered due submission to the king, who would not force them to any oath contrary to their religion. This was signed 18th Nov. _Hardw. Pap._ 546. Yet after this concession on the king's part, the French cabinet was encouraged by it to ask for "a direct and public toleration, not by connivance, promise, or _écrit_ secret, but by a public notification to all the Roman catholics, and that of all his majesty's kingdoms whatsoever, confirmed by his majesty's and the prince's oath, and attested by a public act, whereof a copy to be delivered to the pope or his minister, and the same to bind his majesty and the prince's successors for ever." _Id._ p. 552. The ambassadors expressed the strongest indignation at this proposal, on which the French did not think fit to insist. In all this wretched negotiation, James was as much the dupe as he had been in the former, expecting that France would assist in the recovery of the Palatinate, towards which, in spite of promises, she took no steps. Richlieu had said, "donnez-nous des prêtres, et nous vous donnerons des colonels." _Id._ p. 538. Charles could hardly be expected to keep his engagement as to the catholics, when he found himself so grossly outwitted. It was during this marriage-treaty of 1624, that the archbishop of Embrun, as he relates himself, in the course of several conferences with the king on that subject, was assured by him that he was desirous of re-entering the fold of the church. Wilson in Rennet, p. 786, note by Wellwood. I have not seen the original passage; but Dr. Lingard puts by no means so strong an interpretation on the king's words, as related by the archbishop. Vol. ix. 323. [693] Rennet, p. vi.; Rushworth; Lingard, ix. 353; Cabala, p. 144. [694] "God alloweth (it is said in this homily, among other passages to the same effect) neither the dignity of any person, nor the multitude of any people, nor the weight of any cause, as sufficient for the which the subjects may move rebellion against their princes." The next sentence contains a bold position. "Turn over and read the histories of all nations, look over the chronicles of our own country, call to mind so many rebellions of old time, and some yet fresh in memory; ye shall not find that God ever prospered any rebellion against their natural and lawful prince, but contrariwise, that the rebels were overthrown and slain, and such as were taken prisoners dreadfully executed." They illustrate their doctrine by the most preposterous example I have ever seen alleged in any book, that of the Virgin Mary; who "being of the royal blood of the ancient natural kings of Jewry obeyed the proclamation of Augustus to go to Bethlehem. This obedience of this most noble and most virtuous lady to a foreign and pagan prince doth well teach us, who in comparison of her are both base and vile, what ready obedience we do owe to our natural and gracious sovereign." In another homily entitled "On Obedience," the duty of non-resistance, even in defence of religion, is most decidedly maintained; and in such a manner as might have been inconvenient in case of a popish successor. Nor was this theory very consistent with the aid and countenance given to the United Provinces. Our learned churchmen, however, cared very little for the Dutch. They were more puzzled about the Maccabees. But that knot is cut in Bishop Overall's _Convocation Book_, by denying that Antiochus Epiphanes had lawful possession of Palestine; a proposition not easy to be made out. [695] Collier, 724; Neal, 495; Wood's _History of the University of Oxford_, ii. 341. Knight was sent to the Gate-house prison, where he remained two years. Laud was the chief cause of this severity, if we may believe Wood; and his own diary seems to confirm this. [696] _Parl. Hist._ 877, 395, 410, etc.; Kennet, p. 30; Collier, 740, 743. This historian, though a non-juror, is Englishman enough to blame the doctrines of Sibthorp and Mainwaring, and, consistently with his high-church principles, is displeased at the suspension of Abbot by the king's authority. [697] _State Trials_, ii. 1449. A few years before this, Abbot had the misfortune, while hunting deer in a nobleman's park, to shoot one of the keepers with his cross-bow. Williams and Laud, who then acted together, with some other of the servile crew, had the baseness to affect scruples at the archbishop's continuance in his function, on pretence that, by some contemptible old canon, he had become irregular in consequence of this accidental homicide; and Spelman disgraced himself by writing a treatise in support of this doctrine. James, however, had more sense than the antiquary, and less ill-nature than the churchmen; and the civilians gave no countenance to Williams's hypocritical scruples. Hacket's _Life of Williams_, p. 651; _Biograph. Britann._ art. Abbot; Spelman's Works, part 2, p. 3; Aikin's _James I._, ii. 259. Williams's real object was to succeed the archbishop on his degradation. It may be remarked that Abbot, though a very worthy man, had not always been untainted by the air of a court. He had not scrupled grossly to flatter the king: (see his article in _Biograph. Brit._ and Aikin, i. 368) and tells us himself, that he introduced Villiers, in order to supplant Somerset; which, though well-meant, did not become his function. Even in the delicate business of promising toleration to the catholics by the secret articles of the treaty with Spain, he gave satisfaction to the king (_Hardwicke Papers_, i. 428), which could only be by compliance. This shows that the letter in Rushworth, ascribed to the archbishop, deprecating all such concessions, is not genuine. In Cabala, p. 13, it is printed with the name of the Archbishop of York, Matthews. [698] The bishops were many of them gross sycophants of Buckingham. Besides Laud, Williams, and Neile, one Field, Bishop of Landaff, was an abject courtier. See a letter of his in Cabala, p. 118, 4to edit. Mede says (27th May 1626), "I am sorry to hear they (the bishops) are so habituated to flattery that they seem not to know of any other duty that belongs to them." See Ellis's _Letters_, iii. 228, for the account Mede gives of the manner in which the heads of houses forced the election of Buckingham as Chancellor of Cambridge, while the impeachment was pending against him. The junior masters of arts, however, made a good stand; so that it was carried against the Earl of Berkshire only by three voices. [699] Those who may be inclined to dissent from my text, will perhaps bow to their favourite Clarendon. He says that in the three first parliaments, though there were "several distempered speeches of particular persons, not fit for the reverence due to his majesty," yet he "does not know any formed act of either house (for neither the remonstrance nor votes of the last day were such), that was not agreeable to the wisdom and justice of great courts upon those extraordinary occasions; and whoever considers the acts of power and injustice in the intervals of parliament, will not be much scandalised at the warmth and vivacity of those meetings." Vol. i. p. 8, edit. 1826. THE TEMPLE PRESS, PRINTERS, LETCHWORTH 
40679	----	file was produced from images generously made available by the Posner Memorial Collection (http://posner.library.cmu.edu/Posner/)) Transcriber's Note: In text file only, superscripts (located in the Appendix) have been enclosed in curly brackets {}. Remaining transcriber's notes are at the end of the text. * * * * * HISTORY OF THE ORIGIN, FORMATION, AND ADOPTION OF THE CONSTITUTION OF THE UNITED STATES; WITH NOTICES OF ITS PRINCIPAL FRAMERS. BY GEORGE TICKNOR CURTIS. IN TWO VOLUMES. VOLUME II. NEW YORK: HARPER AND BROTHERS, FRANKLIN SQUARE. 1858. Entered according to Act of Congress, in the year 1858, by GEORGE T. CURTIS, in the Clerk's Office of the District Court of the District of Massachusetts. CONTENTS OF VOLUME SECOND. BOOK IV. FORMATION OF THE CONSTITUTION. CHAPTER I. PRELIMINARY CONSIDERATIONS.--ORGANIZATION OF THE CONVENTION.--POSITION OF THE STATES.--RULE OF INVESTIGATION. Page Explanation of the Author's Plan 3, 4 Preservation of Republican Government 5-7 Nature of American Freedom 7-9 Its Dependence upon the Union 9, 10 Intention of the Framers of the Constitution 11 Hamilton's Purposes 11 The Confederation officially condemned 11, 12 Purposes of the States 12 The declared Objects of the Convention 13 Nature of the previous Union 14, 15 General Purpose of the People 16 Powers of the Convention 17 Opposite Views of the Members 18 Presence of Slavery in the States 19, 20 The Slaves in some Form to be considered 20-22 How they were regarded under the Confederation 21 Complex Relations of the Subject 22 All the States but one represented in Convention 23 Absence of Rhode Island 24, 25 Application of the Minority of Rhode Island 25, 26 Position of the States in Convention 27, 28 Reserved Authority of the People 28, 29 Present Importance of the Process of forming the Constitution 29 Cautions to be used in Interpretation 30 CHAPTER II. CONSTRUCTION OF A LEGISLATIVE POWER.--BASIS OF REPRESENTATION AND RULE OF SUFFRAGE.--POWERS OF LEGISLATION. Randolph's Outline of a Constitution 32 Referred to Committee of the Whole 32 Idea of a National Government 32-35 Rule of Suffrage in the Legislature 35 First Parties in the Convention 36 Representatives in one Branch to be chosen by the People 37 Representation of the People 39-40 States in some way to be represented 40, 41 State Legislatures to choose the Members of the other Branch 41 Ratio of Representation as between the States 42-44 Basis of the Representative System 44-49 Rule of Suffrage in the Senate 48 Consequences of Numerical Representation 49, 50 Powers to be conferred on the Legislature 50 Control of State Legislation 51-55 Population of the States 55 CHAPTER III. CONSTRUCTION OF THE EXECUTIVE AND THE JUDICIARY. Of how many Persons the Executive to consist 56 Negative to be given to the Executive 57 Mode of choosing the Executive 59 Purpose and Necessity of a Judiciary 60 To be made supreme 65 Its Jurisdiction 65 Tenure of the Judicial Office 67 Note on the Judicial Tenure 69 CHAPTER IV. ADMISSION OF NEW STATES.--GUARANTY OF REPUBLICAN GOVERNMENT.--POWER OF AMENDMENT.--OATH TO SUPPORT THE NEW SYSTEM.--RATIFICATION. The Union destined to be enlarged 75 Jefferson's Measure for the Admission of New States in 1784 76 Want of Power in the Confederation 77 Power to be supplied in the Constitution 78 Guaranty of State Governments to be provided 79 Necessity and Utility of the Guaranty 80-83 A Mode of Amendment to be provided 84 Oath to support the Constitution 84 Mode of Ratification 84-86 Report of the Committee of the Whole 86 CHAPTER V. ISSUE BETWEEN THE VIRGINIA AND THE NEW JERSEY PLANS.--HAMILTON'S PROPOSITIONS.--MADISON'S VIEW OF THE NEW JERSEY PLAN. General Character of the Virginia Plan 89 Difficulties and Obstacles in its Way 91 The chief Cause of Opposition 92 The counter Plan by the New Jersey Members 92 Referred to a Second Committee of the Whole 92 Argument of Patterson in its Support 93 Hamilton interposes 94 The Nature of the Issue pending 95 Hamilton's Leading Principles 95 He states the Courses open to the Convention 96 Explains the Principles on which Government must be founded 96-98 Objects to the New Jersey Plan 98, 99 Not satisfied with the Virginia Plan 99 His Views of what must be done 99, 100 Introduces his own Plan 101 It must be judged by the Issue pending 101-106 Madison examines the New Jersey Plan 106 Explains its Effect on the smaller States 107 Declares the Representation to be the great Difficulty 108 The States must be represented proportionally 109 The Virginia Plan again adhered to 109 Note on the Opinions of Hamilton 110 CHAPTER VI. CONFLICT BETWEEN THE NATIONAL AND FEDERAL SYSTEMS.--DIVISION OF THE LEGISLATURE INTO TWO CHAMBERS.--DISAGREEMENT OF THE STATES ON THE NATURE OF REPRESENTATION IN THE TWO BRANCHES.--THREATENED DISSOLUTION OF THE UNION. Different Magnitudes of the States 116 Inequalities in other Respects 117 The Majority and Minority of States 117, 118 Views of New York 118-121 Luther Martin's Opinions 121 Position of Connecticut 122 Nature of the Question between the Larger and the Smaller States 122-125 Advantages of a National System 127 Difficulties attending it 128 Dangers of adhering inflexibly to Theory 129 Division of the Legislature into Two Chambers 130 Origin of the Division in England 130, 131 Practical Advantages of the Separation 131, 132 Why resisted by the Minority 133 Defect in the Virginia Plan 133 Mode of electing the Members 134 Rule of Suffrage for the House 135 Madison's View of the Interest of the Small States 136 Hamilton on the Consequences of Dissolution 136, 137 Evil Results of a perfect Theory 137 Purpose of a Senate 138 Necessity for a distinct Basis 138-140 Irreconcilable Differences 140 Proposition of Compromise rejected 141 Disagreement on the Senate 141 Consequences of a Failure to form a Constitution 142-144 CHAPTER VII. FIRST GRAND COMPROMISES OF THE CONSTITUTION.--POPULATION OF THE STATES ADOPTED AS THE BASIS OF REPRESENTATION IN THE HOUSE.--RULE FOR COMPUTING THE SLAVES.--EQUALITY OF REPRESENTATION OF THE STATES ADOPTED FOR THE SENATE. Appointment of a Committee of Compromise 145 Representation adjusted by the Committee 146 Character of the Compromise 147 How treated in the Convention 147, 148 Apportionment of Representatives re-arranged 148, 149 Objections to the Plan 149, 150 Representation of the Slaves 150 Combined Rule of Numbers and Wealth 151 Test Question respecting the Slaves 153 Necessity for their Admission into the Basis of Representation 154-162 The Difficulties only to be adjusted by Compromise 162 Form of the Compromise 163, 164 Equality of Vote adopted for the Senate 165, 166 Value of this Feature of the Constitution 166, 167 Population of the Slaveholding and Non-slaveholding States compared 168 CHAPTER VIII. POWERS OF LEGISLATION.--CONSTITUTION AND CHOICE OF THE EXECUTIVE.--CONSTITUTION OF THE JUDICIARY.--ADMISSION OF NEW STATES.--COMPLETION OF THE ENGAGEMENTS OF CONGRESS.--GUARANTY OF REPUBLICAN CONSTITUTIONS.--OATH TO SUPPORT THE CONSTITUTION.--RATIFICATION.--NUMBER OF SENATORS.--QUALIFICATIONS FOR OFFICE.--SEAT OF GOVERNMENT. The General Interests of the Union to be provided for 170 Constitution, Laws, and Treaties to be Supreme 170 Appointment and Powers of the Executive 171 Re-eligibility of the Executive 172, 173 Tenure of the Office 173 Right of Suffrage in Choice of the Executive 174 Appointment by Electors 175 Construction of the Judiciary 176 Admission of New States 176 Completion of the Engagements of Congress 176 Guaranty of Republican Governments 177 Future Amendments 177 Oath to Support the Constitution 177 Ratification 177 Objects of a Popular Ratification 177-184 Constitution to be submitted to the Congress 185 Number of Senators 186 Qualifications for Office 186 Property Qualification 187 Seat of the National Government 189 General Pinckney's Notice respecting Slaves and Exports 189 Resolutions sent to Committee of Detail 190 CHAPTER IX. REPORT OF THE COMMITTEE OF DETAIL.--CONSTRUCTION OF THE LEGISLATURE.--TIME AND PLACE OF ITS MEETING. Power confided to the Committee of Detail 193 Their Draft of a Constitution 194 Right of Suffrage 194 Foreign-born Inhabitants 195-196 Immigration to be encouraged 197 Qualifications for Voting 198-202 Power of Naturalization 199 Qualifications for Office 203-210 Spirit of the Constitution 211 Ratio of Representation 212-214 Money Bills 215-222 Qualifications of Senators 223, 224 Number of Senators 224-226 Method of Voting in the Senate 226-228 Vacancies in the Senate and House 229 Powers of the Senate 229-240 Senatorial Term 240-242 Disqualifications of Members of both Branches 242 _et seq._ Parliamentary Corruption 242-244 Executive Influence 244-256 Time and Place for Elections 257 Pay of Members 258, 259 Impeachments 260-262 Quorum of each House 262 Separate Powers of each House 262-263 President of the Senate 263 Enactment of Laws 264 President's Negative 265-268 Seat of Government 268-277 Session of Congress 277, 278 CHAPTER X. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE POWERS OF CONGRESS.--THE GRAND COMPROMISES OF THE CONSTITUTION RESPECTING COMMERCE, EXPORTS, AND THE SLAVE-TRADE. General Principles of the Powers of Legislation 279, 280 Limitations 280 Exports and the Slave-Trade 281 Fitness and Unfitness of a Tax on Exports 282 Variety in the Exports of the United States 283 Impracticability of such a Tax 284 The Slave-Trade Controversy 285 _et seq._ How adjusted 289 _et seq._ Restrictions on the Revenue and Commercial Powers 289 Regulation of Commerce 291 _et seq._ Settlement of the Revenue and Commercial Powers 295 _et seq._ Proposition of Compromise 301 Arrangement of the Compromise 303 Value of the Compromise 307 Benefits of the Revenue and Commercial Powers 309 CHAPTER XI. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE REMAINING POWERS OF CONGRESS.--RESTRAINTS UPON CONGRESS AND UPON THE STATES. Purpose of the Revenue Power 318-322 Preference of Ports prohibited 323, 324 Duties, &c. to be equal 325 Commerce with the Indian Tribes 325-328 Uniform Rule of Naturalization 328 Coining and Regulating Value of Money 328 Standard of Weights and Measures 328 Post-Offices and Post-Roads 328 Power to borrow Money 328-330 Tribunals inferior to the Supreme Court 330 Rules as to Captures 330 Offences against the Law of Nations 331 Counterfeiting 332 War Power 332 Raising and supporting Armies 333 Navy 334 Power over the Militia 334-338 Necessary and proper Laws to execute the Specific Powers 338 Patents and Copyrights 339 Power over Territories 341-358 Admission of New States 358 Restraints upon Congress 359 Suspension of the _habeas corpus_ 359 Bills of Attainder 360 _Ex post facto_ Laws 360 _et seq._ Titles of Nobility 362 Gifts and Emoluments from foreign Princes 362 Restraints upon the States 362 _et seq._ Obligation of Contracts 365 State Imposts 369 Tonnage Duties 370 Other Restraints 371 CHAPTER XII. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--SUPREMACY OF THE NATIONAL GOVERNMENT.--DEFINITION AND PUNISHMENT OF TREASON. Principles of the National Supremacy 372 Preamble of the Constitution 373 Supremacy effected through the Judicial Power 374 Ratification 375 Meaning and Operation of the Supremacy 376-381 Its Effect on the Growth of the Country 381-384 Definition and Punishment of Treason 384-387 CHAPTER XIII. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--ELECTION AND POWERS OF THE PRESIDENT. Election of the President, why not made directly by the People 388 Origin of the Plan of Electors 389 Choice of President and Vice-President 390-395 Succession of the Vice-President to the Presidency 395-398 Mode of filling the Vacancy when there is no Vice-President 398 Mode of choosing the Electors 398, 399 Opening of the Votes of the Electors 399, 400 Modifications of the Mode of Election made by the Amendment 400, 401 Contingency, for which no Provision is made 401-403 Qualifications for the Presidency 404 Salary of the President 404-407 Question of a Cabinet, or a Council 407-409 Powers of the President 409 _et seq._ Executive Power 412, 413 Pardoning Power 413, 414 Treaty-making Power 414-417 Appointing Power 417, 418 To give Information on the State of the Union 419 Power to convene Congress 419 CHAPTER XIV. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--FORMATION OF THE JUDICIAL POWER. Scope of the Judicial Power 421-431 Its Purposes 431-445 CHAPTER XV. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--EFFECT OF RECORDS.--INTER-STATE PRIVILEGES.--FUGITIVES FROM JUSTICE AND FROM SERVICE. Intimacy of the Relations between the People of the States 447 Difference between the Confederation and the Constitution 447, 448 Privileges of Citizenship in all the States 448 Effect of Records 449 Fugitives from Justice 449, 450 Fugitives from Service 450-467 CHAPTER XVI. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--GUARANTY OF REPUBLICAN GOVERNMENT AND INTERNAL TRANQUILLITY.--OATH TO SUPPORT THE CONSTITUTION.--MODE OF AMENDMENT.--RATIFICATION AND ESTABLISHMENT OF THE CONSTITUTION.--SIGNING BY THE MEMBERS OF THE CONVENTION. Purpose of the Guaranty of Republican Government 468 Meaning of the Guaranty 469 American Sense of a "Republican" Government 471 Amendment a Conservative Element 473 Distinction between Amendment and Revolution 473-474 Settlement of the Mode of Amending the Constitution 474-477 Restrictions on the Power of Amendment 477, 478 Oath to support the Constitution 478 Establishment of the Constitution provided for 479-485 Signatures of the Delegates 485-487 The Issue presented 487 BOOK V. ADOPTION OF THE CONSTITUTION. CHAPTER I. GENERAL RECEPTION OF THE CONSTITUTION.--HOPES OF A REUNION WITH GREAT BRITAIN.--ACTION OF THE CONGRESS.--STATE OF FEELING IN MASSACHUSETTS, NEW YORK, VIRGINIA, SOUTH CAROLINA, MARYLAND, AND NEW HAMPSHIRE.--APPOINTMENT OF THEIR CONVENTIONS. Public Anxiety 491 Rumors about the Bishop of Osnaburg 492 Scheme of the Tories 493, 494 Publication of the Constitution 495 Its Friends and Opponents 495, 496 Position of the People 497, 498 Reception of the Instrument in Congress 499 Action upon it 500 Reception in Massachusetts 501 Reception in New York 502-504 Reception in Virginia 505, 506 Jefferson's Opinion 506, 507 Course recommended by Jefferson 508 Washington's Exertions 509 Patrick Henry's Course in the Legislature 510 Debate in the Legislature of South Carolina 511 Action of the Legislature of Maryland 512 Luther Martin's Address 512-514 State of Opinion in New Hampshire 514 The real Crisis anticipated 515 Chances for the Constitution 516 Uncertainty of the Result 517 CHAPTER II. RATIFICATIONS OF DELAWARE, PENNSYLVANIA, NEW JERSEY, GEORGIA, AND CONNECTICUT, WITHOUT OBJECTION.--CLOSE OF THE YEAR 1787.--BEGINNING OF THE YEAR 1788.--RATIFICATION OF MASSACHUSETTS, THE SIXTH STATE, WITH PROPOSITIONS OF AMENDMENT.--RATIFICATION OF MARYLAND WITHOUT OBJECTION.--SOUTH CAROLINA, THE EIGHTH STATE, ADOPTS, AND ADOPTS, AND PROPOSES AMENDMENTS. Delaware ratifies unanimously 518 _Prestige_ of Philadelphia 519 James Wilson in the Convention of Pennsylvania 520 His Defence of the Constitution 521-524 Ratification of Pennsylvania 524 Position of New Jersey 524, 525 Ratifies the Constitution 526 Position of Georgia 526 Ratifies the Constitution 527 Convention of Connecticut 527, 528 Her Adoption 529 New Aspect of the Subject 529, 530 Convention of Massachusetts assembles 530 Nature of her Opposition 531 Value of her State Constitution 532 Parties in her Convention 532, 533 Samuel Adams and the Opposition 533, 534 The Federal Leaders 534 They recognize the Necessity for Amendments 535 Dangers of this Admission 535, 536 Hancock proposes the Amendments 537 Ratification procured by them 538 Conduct of the Minority 539 Nature of the Amendments 539, 540 The People of Boston rejoice 540 Influence of Massachusetts on New Hampshire 541 Critical Position of Maryland 542 Her Ratification 543 Rejoicings in Baltimore 543 Good News from South Carolina 544 Liberal Conduct of her People 544, 545 Defence of the Constitution by her Delegates 546 The Convention admits the Justice of the Commercial Power 547 Efforts of the Opposition 548 Charleston celebrates the Constitution 548 CHAPTER III. RATIFICATIONS OF NEW HAMPSHIRE, VIRGINIA, AND NEW YORK, WITH PROPOSED AMENDMENTS. New Hampshire, Virginia, and New York are to act in the same Month 549 Hamilton's Expresses arranged 550 Virginia Convention meets 551 Patrick Henry leads the Opposition 552 His peculiar Tendencies 553 Character of his Politics 554 Edmund Randolph's Position 555 Unexpectedly supports the Constitution 556 George Mason on the Power of Direct Taxation 557 Henry denounces the Constitution 558 Madison defends it 559 He denies the Dangers imputed to it 560 Henry vouches the Advice of Jefferson 561 Jefferson's Advice misconstrued 562 Henry persists in pressing his View of it 563 It strengthens the Opposition 564 They employ the Mississippi Question 565 True Aspect of that Question 566 Madison's Answer to the Opposition 567 Negotiations opened with the Anti-Federalists of New York and Pennsylvania 568 The Convention of New York assembles 568 Hamilton at the Intersection of his Expresses 569 His Critical and Responsible Position 569, 570 Nature of his Ambition 570, 571 His Opinion of the Purposes of the Opposition 571 His Answer to their Plans 572 He receives News of the Ratification by New Hampshire 573 Chancellor Livingston announces the Ratification of the Ninth State 574 The Opposition not subdued 574 Hamilton's Conduct at this Crisis 575-578 He despatches a Courier to Richmond 578 But the Constitution is ratified before the Courier arrives 578 How its Ratification was obtained 579-581 Henry's magnanimous Submission 581 The News from Virginia received at Philadelphia 582 Elaborate Procession in Honor of the Constitution 583 Hamilton receives the News from Virginia 584 He consults his Friends 585 They force the Opposition to an Issue 586 Hamilton advises with Madison 587 An Unconditional Ratification carried 588 The Federalists unite in a Call for a Second General Convention 588 Their Justification for so doing 589-592 The City of New York celebrates the Adoption of the Constitution 592 Honors paid to Hamilton by the People 592-595 CHAPTER IV. ACTION OF NORTH CAROLINA AND RHODE ISLAND.--CONCLUSION. Convention of North Carolina assembles 596 Refuses to ratify the Constitution 597 Elements of the Opposition in Rhode Island 598 Local Parties in the State 599 Town and Country divided 600 Spirit of a Majority of the People 600, 601 They reject the Constitution 602 Embarrassing Position of the Union 603 Conclusion 604 APPENDIX. Constitution of the United States of America 607 Articles in Addition to, and Amendment of, the Constitution of the United States of America 619 INDEX 633 BOOK IV. FORMATION OF THE CONSTITUTION. CHAPTER I. PRELIMINARY CONSIDERATIONS.--ORGANIZATION OF THE CONVENTION.--POSITION OF THE STATES.--RULE OF INVESTIGATION. After long wanderings through the struggles, the errors, and the disappointments of the earlier years of our constitutional history, I now come to consider that memorable assembly to which they ultimately led, in order to describe the character of an era that offered the promise of a more vigorous nationality, and presented the alternative of final dissolution. How the people of the United States were enabled to seize the happy choice of one of these results, and to escape the disasters of the other, is to be learned by examining the mode in which the Constitution of the United States was framed. In approaching this interesting topic, I am naturally anxious to place myself at once on a right understanding with the reader,--to apprise him of the purpose of the discussions to which he is invited, and to guard against expectations which might be entertained, but which will not be fulfilled. In a work designed for general and--as I venture to hope it may prove--for popular use, it would be out of place, as it certainly would be impracticable within the limits of a single volume, to undertake the explanation and discussion of all those particular questions of construction that must constantly arise under almost every clause and feature of such an instrument as the Constitution of the United States, and which, as our whole experience has taught us, are fruitful both of extensive debate and of wide as well as honest diversities of opinion. I shall consider questions of construction only so far as may be necessary to elucidate my subject; for I propose, in writing the history of the formation of the Constitution, to describe rather those great modifications in the principles and structure of the Union that took place in the period at which we have now arrived in the course of this work; to state the essential features of the new government; and to trace the process by which they were evolved from the elements to which the framers of that government resorted. Happily for us, the materials for such a description are ample. The whole civil change which transformed the character of our Union, and established for it a national government, took place peacefully and quietly, within a single twelvemonth. It was attended with circumstances which enable us to ascertain its character with a high degree of certainty. The leading purposes that were entertained and carried out were not left to the conjecture of posterity, but were recorded by deliberative assemblies, whose acts of themselves expressed and ascertained the objects and intentions of the national will. First framed by an assembly in which the States participating in the change were fully represented, and subsequently debated and ratified in conventions of the people in the separate States, the general nature and design of the Constitution may be traced and understood without serious difficulty. But to the right understanding of its nature and objects, a careful examination of the proceedings of the national Convention is, in the first place, essential. Before we enter, however, upon this examination, there are certain preliminary facts that explain the circumstances in which the Convention was assembled, and which will enable us to appreciate the results at which it arrived. To these, therefore, the reader is now desired to turn. First of all, then, it is to be remembered that the national Convention of 1787 was assembled with the great object of framing a system of government for the united interests of the thirteen States, by which the forms and spirit of republican liberty could be preserved. The warnings and teachings of the ten preceding years, which I have attempted to describe in a previous volume, had presented to the people of these States the serious question, whether their system of conducting their common affairs then rested upon principles that could secure their permanent prosperity and happiness. That the States had national interests; that each of them stood in relations to the others, and to the rest of the world, which its separate and unaided power was unable to manage with success; and that even its own internal peace and prosperity required some external protection,--had been brought home to the convictions of the people by an experience that commenced with the day on which they declared themselves independent, and had now forced upon them its last stern and sorrowful lesson in the general despondency of the national heart. As they turned anxiously and fearfully to the near and dear interests involved in their separate and internal concerns, they saw that self-government was a necessity of their existence. They saw that equality before the law for the whole people; the right and the power to appoint their own rulers; the right and the power to mould and form and modify every law and institution at their own sovereign will,--to lay restraints upon their own power, or not to lay them,--to limit themselves by public compact to a particular mode of action, or to remain free to choose other modes,--were the essential conditions of American society. In a word, they beheld that republican and constitutional liberty, which, with all that it comprehends and all that it bestows, was not only altogether lovely in their eyes, but without which there could be no peace, no social order, no tranquillity, and no safety for them and their posterity. This liberty they knew must be preserved. They loved it with passionate devotion. They had been trained for it by the whole course of their political and social history. They had fought for it through a long and exhausting war. Their habits of thought and action, their cherished principles, their hopes, their life as a people, were all bound up in it; and they knew that, if they suffered it to be lost, there would remain for them nothing but a heritage of shame, and ages of confusion, strife, and sorrow. Great as was their devotion to this republican liberty, and ardent as was their love of it, they did not value it too highly. The doctrine that all power resides originally in the people; that they are the source of all law; that their will is to be pronounced by a majority of their numbers, and can know no interruption,--was not first discovered in America. But to this principle of a democracy the people of the American States had added two real and important discoveries of their own. They had ascertained that their own power might be limited by compacts which would regulate and define the modes in which it shall be exercised. Their written constitutions had taken the place of the royal charters which formerly embraced the fundamental conditions of their political existence, but with this essential difference,--that whereas the charter emanated from a foreign sovereign to those who claimed no original authority for themselves, the constitution proceeded from the people, who claimed all authority to be resident in themselves alone. While the charter embraced a compact between the foreign sovereign and his subjects who lived under it, the constitution, framed by the people for their own guidance in exercising their sovereign power, became a compact between themselves and every one of their number. In this substitution of one supreme authority for another, some limitation of the mode in which the sovereign power was to act became the necessary consequence of the change; for as soon as the people had declared and established their own sovereignty, some declaration of the nature of that sovereignty, and some prescribed rules for its exercise, became immediately necessary, and that declaration and those rules became at once a limitation of power, extending to every citizen the protection of every principle involved in them, until the same authority which had established should change them. Against the evils, too, that might arise from the unrestricted control of a majority of the people over the fundamental law,--against the abuse of their power by frequent and passionate changes of the rules which limit its exercise for the time being,--they had discovered the possibility of limiting the mode in which the organic law itself was to be changed. By prescribing certain forms in which the change was to be made, and especially by requiring the fact, that a change had been decreed by those having a right to make it, to be clearly and carefully ascertained by a particular evidence, they guarded the fundamental law itself against usurpation and fraud, and greatly diminished the influences of haste, prejudice, and passion. Such was the nature of American republican liberty; not then fully understood, not then fully developed in all the States, but yet discovered,--a liberty more difficult of attainment, more elaborate in its structure, and therefore more needful of defence, than any of the other forms of constitutional freedom under which civilized man had hitherto been found. Now, the fate of republican liberty in America, at that day, depended directly upon the preservation of some union of the States, and not simply upon the existing State institutions, or upon the desires of the people of each separate State. It is true, that their previous training and history, and their own intelligent choice, had made the States, in all their forms and principles, republican governments; and almost all of them had, at this period, written constitutions, in which the American ideal of such governments was aimed at, and more or less nearly reached. But how long were these constitutions, these republican forms, to exist? What was to secure them? Who was to stand as their guarantor and protector, and to vindicate the right of the majority to govern and alter and modify? Who was to enforce the rules which the people of a State had prescribed for their own action, when threatened by an insurgent and powerful minority? Who was to protect them against foreign invasion or domestic violence? There was no common sovereign, or supreme arbiter, to whom they could all alike appeal. There was no power upon this broad continent to whom the States could intrust the duty of preserving their institutions inviolate, except the people of the United States in some united and sovereign capacity. No single State, however great its territory or its population, could have discharged these duties for itself by its unaided power; for no one of them could have repelled a foreign invasion alone, and the government of one of the most respectable and oldest of them, whose people had exhibited as much energy as any other community in America, had almost succumbed to the first internal disorder which it had been forced to encounter. The preservation of the Union of the States was, therefore, essential to the continuance of their independence, and to the continuance of republican constitutional liberty,--of that liberty which resides in law duly ascertained to be the authentic will of a majority. With this vastly important object before them, the people of the States of course could give to the Union no form that would not reflect the same spirit, and harmonize with the nature of their existing institutions. To have left their State governments resting upon the broad basis of popular freedom acting through republican forms, and to have framed, or to have attempted to frame, national institutions on any other model, would have been an act of political suicide. To enable the Union to preserve and uphold the authority of the people within the respective States, it must itself be founded on the same authority, must embody the same principles, spring from the same source, and act through similar institutions. Accordingly, the student of this portion of our history will find everywhere the clearest evidence that, so far as the purpose of forming a national government of a new character was entertained at the period when the Convention was assembled, a republican form for that government was a foregone conclusion. Not only did no State entertain any purpose but this, but no member of the Convention entered that body with any expectation of a different result. There is but one of the statesmen composing that assembly to whom a purpose of creating what has been called a monarchical government has ever been distinctly imputed; and with regard to him, as much as to every other person in the Convention, I shall show that the imputation is unjust. Hamilton,--for it is to him of course that I now allude,--together with many others, believed that a failure, at that crisis, to establish a government of sufficient energy to pervade the whole Union with the necessary control, would bring on at once a state of things that must end in military despotism. Hence his efforts to give to the republican form, which he acknowledged to be the only one suited to the circumstances and condition of the country, the highest degree of vigor, stability, and power that could be attained. Another very important fact, which the reader is to carry along with him into the examination of the proceedings of the Convention, is, that by the judgment of the old Congress, and of every State in the Union save one,[1] the Confederation had been declared defective and inadequate to the exigencies of government, and the preservation of the Union. That this declaration was expressly intended to embrace the principle of the Union, or looked to the substitution of a system of representative government, to which the people of the States should be the immediate parties, in the place of their State governments, does not appear from the proceedings which authorized and constituted the Convention. In substance, those proceedings ascertained that there were great defects in the existing Confederation; that there were important purposes of the federal Union which it had failed to secure; and that a Convention of all the States, for the purpose of revising and amending the Articles of Confederation, was the most probable means of establishing a firm general government, and was therefore to be held. But what were the original purposes of the Union, or what purposes had come to be regarded as essential to the public welfare, was not indicated in most of the acts constituting the Convention. Virginia, whose declaration preceded that of Congress and of the other States, and on whose recommendation they all acted, had made the commercial interests of the United States the leading object of the proposed assembly; but she had also declared the necessity of extending the revision of the federal system to all its defects, and had advised further concessions and provisions, in order to secure the great objects for which that system was originally instituted. These general and somewhat indefinite purposes were declared by the other States, without any material variation from the terms employed by Virginia.[2] Hence it is that the previous history of the Union becomes important to be examined before we can appreciate the great general purposes of its original formation, as they were understood at the time of these proceedings, or can appreciate the further purposes that were intended to be engrafted upon it. The declarations made by the Congress and the States seem obviously to embrace two classes of objects; the one is what, in the language of Virginia, they conceived to have been "the great objects for which the federal government was instituted"; the other is the "exigencies of the Union," for peace as well as for war, as they had been displayed and developed by the defects of the Confederation, and by its failures to secure the general welfare. The first of these classes of objects could be ascertained by reference to the terms and provisions of the Articles of Confederation; the second could only be ascertained by resorting to the history of the confederacy, and by regarding its recorded failures to promote the general prosperity as proofs of what the exigencies of the Union demanded in a general government.[3] In the first volume of this work we have examined the nature and operation of the previous Union, in both of its aspects, and we must carry the results of that examination along with us in studying the formation of the new system. We have seen the character of the Union which was formed by the assembling of the Revolutionary Congress, to enable the States to secure their independence of the crown of Great Britain. We have seen that, from the jealousies of the States, even this Congress never assumed the whole revolutionary authority which its situation and office would have entitled it to exercise. We have seen also, that, from the want of a properly defined system, and from the absence of all proper machinery of government, it was unable to keep an adequate army in the field, until, in a moment of extreme emergency, it conferred upon the Commander-in-chief the powers of a dictator. We have witnessed the establishment of the Confederation,--a government which bore within itself the seeds of its own destruction; for it relied entirely, for all the sinews of war, upon requisitions on the States, with which the States perpetually refused or neglected to comply. We have thus seen the war lingering and languishing until foreign aid could be procured, and until loans of foreign money supplied the means of keeping it alive long enough for the admirable courage, perseverance, and energy of Washington to bring it to a close, against all obstacles and all defects of the civil power. When the war was at length ended, and the duty of paying the debts thus incurred to the meritorious and generous foreign creditor, and the more than meritorious and generous domestic creditor, pressed upon the conscience of the country, we have seen that there was no power in the Union to command the means of paying even the interest on its obligations. We have seen that the treaty of peace could not be executed; that the Confederation could do nothing to secure the republican governments of the States; that the commerce of the country could not be protected against the policy of foreign governments, constantly watching for advantages which the clashing interests of the different States at all times held out to them; and that, with the rule which required the assent of nine States to every important measure, it was possible for the Congress to refuse or neglect to do what it was of the last importance to the people of the United States they should do. Finally, we have seen that what now kept the existing Union from dissolution, as it had been one immediate inducement to its formation, was the cession of the vast Northwestern territory to the United States; and that over this territory new States were forming, to take their places in the band of American republics, while the Confederation possessed no sufficient power to legislate for their condition, or to secure their progress toward the great ends of civil liberty and prosperity. A retrospection, therefore, of the previous history of the Confederacy, while it reveals to us the public appreciation of the national wants and the national failures, displays the general purposes contemplated by the States when they undertook effectually to provide for "the exigencies of the Union." But what the nature of the proposed changes was to be, and in what mode they were to be reached, was, as we have seen, left undetermined by the constituent States when they assembled the Convention; and we are now, therefore, brought to the third preliminary fact, necessary to be regarded in our future inquiries, namely, the condition of the actual powers of that assembly. The Confederation has already been described as a league, or federal alliance between independent and sovereign States, for certain purposes of mutual aid. So far as it could properly be called a government, it was a government for the States in their corporate capacities, with no power to reach individuals; so that, if its requirements were disregarded, compulsion could only be directed--if against anybody--against the delinquent member of the association, the State itself. At the time when the Convention was assembled, the general purpose entertained throughout the Union appears to have been, by a revision and amendment of the Articles of Confederation, to give to the Congress power over certain subjects, of which that instrument did not admit of its taking cognizance, and to add such provisions as would render its power efficient. But it was not at all understood by the country at large, that, while the nominal powers of the Confederation might be increased at the pleasure of the States, those powers could not be made effectual without a change in the principle of the government. Hence, the idea of abolishing the Confederation, and of erecting in its place a government of a totally different character, was not entertained by the States, or, if entertained at all, was not expressed in the public acts of the States by which the Convention was called. This idea, however, was perhaps not necessarily excluded by the terms employed by the States in the instruction of their delegates: and we may therefore expect to find the members of that assembly, in construing or defining the powers conferred upon it, taking a broader or narrower view of those powers, according to the character of their own minds, the nature of their previous public experience, and the real or supposed interests of their particular States. Many of the persons who had been clothed with this somewhat vague and indeterminate authority to "revise" the existing federal system, and to agree upon and propose such amendments and further provisions as might effectually provide for the "exigencies of the Union," were statesmen who had passed the active period of their previous lives in vain endeavors to secure efficient action for the powers possessed by the Congress, both under the revolutionary government and under the Confederation. They were selected by their States on account of this very experience, and in order that their counsels might be made available to the country.[4] They saw that the mere grant of further powers, or the mere consent that the Congress should have jurisdiction over certain new subjects, would be of no avail while the government continued to rest upon the vicious principle of a naked federal league, leaving the question constantly to recur, whether the compact was not virtually dissolved by the refusal of individual States to discharge their federal obligations. These persons, consequently, came to the Convention feeling strongly the necessity for a radical change in the principles and structure of the national Union; but feeling also great embarrassment as to the mode in which that change was to be effected. On the other hand, there were other members of the Convention who came with a disposition to adhere to the more literal meaning of their instructions, and who did not concur in the alleged necessity for a radical change of the principle of the government. Fearing that the power and consequence of their own States would be diminished by the introduction of numbers as a basis of representation, they adhered to the system of representation by States, and insisted that nothing was needed to cure the evils that pressed upon the country, but to enlarge the jurisdiction of the Congress under that system. They were naturally, therefore, the first to suggest and the last to surrender the objection, that the Convention had received no authority, either from the States or from the Congress, to do anything more than revise the Articles of Confederation, and recommend such further powers as might be engrafted upon the present system of the Union. That the construction of their powers by the latter class of the members of the Convention comported with the mere terms of the acts of the States, and with the general expectation, I have more than once intimated; but we shall see, as the experiment of framing the new system proceeded, that the views of the other class were equally correct; that the addition of further powers to the existing system of the Union would have left it as weak and inefficient as it had been before; and that what were universally regarded as the "exigencies of the Union"--which was but another name for the wants of the States--could only be provided for by the creation of a different basis for the government. Another fact which we are to remember is the presence, in five of the States represented in the Convention, of large numbers of a distinct race, held in the condition of slaves. Whatever mode of constituting a national system might be adopted, if it was to be a representative government, the existence of these persons must be recognized and provided for in some way. Whatever ratio of representation might be established,--whether the States were to be represented according to the numbers of their inhabitants, or according to their wealth,--this part of the population of the slave-holding States presented one of the great difficulties to be encountered. A change of their condition was not now, and never had been, one of the powers which those States proposed to confide to the Union. In no previous form of the confederacy had any State proposed to surrender its own control over the condition of persons within its limits, or its power to determine what persons should share in the political rights of that community; and no State that now took part in the new effort to amend the present system of the Union proposed to surrender this control over its own inhabitants, or sought to acquire any control over the condition of persons within any of the other States. The deliberations of the Convention were therefore begun with the necessary concession of the fact, that slavery existed in some of the States, and that the existence and continuance of that condition of large masses of its population was a matter exclusively belonging to the authority of each State in which they were found. Not only was this concession implied in the terms upon which the States had met for the revision of the national system, but the further concession of the right to have the slave populations included in the ratio of representation became equally unavoidable. They must be regarded either as persons or as chattels. If they were persons, and the basis of the new government was to be a representation of the inhabitants of the States according to their numbers,--the only mode of representation consistent with republican government,--their precise condition, their possession or want of political rights, could not affect the propriety of including them in some form in the census, unless the basis of the government should be composed exclusively of those inhabitants of the States who were acknowledged by the laws of the States as free. The large numbers of the slaves in some of the States would have made a government so constructed entirely unequal in its operation, and would have placed those States, if they had been willing to enter it,--as they never could have been,--in a position of inferiority which their wealth and importance would have rendered unjustifiable. On the other hand, if the wealth of the States was to be the measure of their representation in the new government, the slaves must be included in that wealth, or they must be treated simply as persons. The slaves might or might not be persons, in the view of the law, where they were found; but they were certainly in one sense property under that law, and as such they were a very important part of the wealth of the State. The Confederation had already been obliged to regard them, in considering a rule by which the States should contribute to the national expenses. They had found it to be just, that a State should be required to include its slaves among its population, in a certain ratio, when it was called upon to sustain the national burdens in proportion to its numbers; and they had recommended the adoption of this fundamental rule as an amendment of the federal Articles.[5] Either in one capacity, therefore, or in the other, or in both,--either as persons or as property, or as both,--the Union had already found it to be necessary to consider the slaves. In framing the new Union, it was equally necessary, as soon as the equality of representation by States should give place to a proportional and unequal representation, to regard these inhabitants in one or the other capacity, or in both capacities, or to leave the States in which they were found, and to which their position was a matter of grave importance, out of the Union. This difficulty should be rightly appreciated and fairly stated by the historian who attempts to describe its adjustment, and it should be carefully regarded by the reader. What reflections may arise upon the facts that we have to consider,--what should be the judgment of an enlightened benevolence upon the whole matter of slavery, as it was dealt with or affected by the Constitution of the United States,--may perhaps find an appropriate place in some future discussion. Here, however, the reader must approach the threshold of the subject with the expectation of finding it surrounded by many and complex relations. History should undoubtedly concern itself with the interests of man. But it is bound, as it makes up the record of events which involve the destinies and welfare of different races, to look at the aggregate of human happiness. It is not to rest, for its final conclusions, in seeming or in real inconsistencies; in real or apparent conflicts between opposite principles; or in the mere letter of those adjustments by which such conflicts have been avoided, or reconciled, or acknowledged. It is to arrive at results. It is to draw the wide deduction which will show whether human nature has lost or gained by the conditions and forms of national existence which it undertakes to describe. As the question should always be, in such inquiries, whether any different and better result was attainable under all the circumstances of the case,--a question to which a calm and dispassionate examination will generally find an answer,--the amount of positive good that has been gained for all, or of positive evil that has been averted from all, is the true justification of existing institutions. The Convention, when fully organized, embraced a representation from all the States, with the single exception of Rhode Island. Connecticut, which had steadily opposed the measure of a Convention,[6] came into it at a late period, and did not send a delegation until a fortnight after the time appointed for its session.[7] It had always been the inclination of that State to retain in her own hands the regulation of commerce; she had taxed imports from some of her neighbors, and this advantage, as it was considered, had made her reluctant to enlarge the powers of the Union. Her delegation appeared on the 28th of May. That of New Hampshire was not appointed until the latter part of June,[8] and did not appear until the 23d of July.[9] Rhode Island, small in territory and in numbers, but favorably situated for the pursuits of commerce, had strenuously resisted every effort to enlarge the powers of the Union. Ever since the Declaration of Independence, the people of that State had clung to the opportunity, afforded by their situation, of taxing the contiguous States, through their consumption of commodities brought into its numerous and convenient ports. For this object they had refused their assent to the revenue system of 1783; and as the failure of that system had prevented an exhibition of some of the benefits to be derived from uniform fiscal regulations, the local government of Rhode Island adhered, in 1786-7, to what they had always regarded as the true interest of their State. They did, it is true, appoint delegates to the commercial convention at Annapolis, but the persons appointed did not attend; and when the resolve which sanctioned the Convention of 1787 was adopted in Congress, Rhode Island was not represented in that body. When the recommendation of the Congress came before the legislature of the State, there appears to have been a strong party in favor of making an appointment of delegates to the Convention. The mercantile part of the population had come to entertain more liberal and far-seeing notions of their true interests; and the views of some of the more intelligent of the farmers and mechanics had been much modified. But by far the larger portion of the people--wedded to a system of paper money, which furnished almost their sole currency, and vaguely apprehending that a new government for the Union would destroy it, seeking the abolition of debts, public and private, and jealous of all influence from without--were in a condition to be ruled by their demagogues, rather than to be enlightened and aided by their statesmen. In May, the legislature rejected a proposition to appoint delegates to the Federal Convention; and in June, although the upper house, or Governor and Council, embraced the measure, it was again negatived in the House of Assembly by a large majority. The minority then formed an organization, which never lost sight of the national relations of the State, and which finally succeeded in bringing her into the Union under the new Constitution, in 1790. Immediately after the first rejection of the proposal to unite with the other States in reforming the Confederation, a body of commercial persons in Providence addressed a letter to the Convention, expressing the opinion that full power for the regulation of the commerce of the United States, both foreign and domestic, ought to be vested in the national council, and that effectual arrangements should also be made for giving operation to the existing powers of Congress in their requisitions for national purposes. Their object in this communication was to prevent an impression among the other States, unfavorable to the commercial interests of Rhode Island, from growing out of the circumstance of their being unrepresented in the Convention. Expressing the hope that the result of its deliberations would be to "strengthen the Union, promote the commerce, increase the power, and establish the credit of the United States," they pledged their influence and best exertions to secure the adoption of that result by the State of Rhode Island. The signers of this letter formed the nucleus of that party which afterwards fulfilled the pledge thus given to the Convention. The absence of Rhode Island did not occasion a serious embarrassment. The resolve of Congress recommending the Convention did not expressly require the presence of all the States; and the commissions given by each of the States which adopted the recommendation clearly implied that their delegates were to meet and act with the delegations of such other States as might see fit to be represented. The communication of the minority party in Rhode Island was received and read, and the interests of that State were attended to throughout the proceedings. We are now carefully to observe the position of the States when thus assembled in Convention. Their meeting was purely voluntary; they met as equals; and they were sovereign political communities, whom no power could rightfully coerce into a change of their condition, and with whom such a change must be the result of their own free and intelligent choice, governed by no other than the force of circumstances. That they were independent of foreign control was ascertained by the Declaration of Independence, by the war, and by the Treaty of Peace. That they were independent of each other, except so far as they had made certain mutual stipulations in the Articles of Confederation, was the necessary result of the events which had made the people of each State its rightful and exclusive sovereigns. We must recur, therefore, to the Articles of Confederation for the purpose of determining the nature of the position in which the States now stood. When the States, in 1781, entered into the confederacy then established, they reserved their freedom, sovereignty, and independence, and every jurisdiction, power, and right not expressly delegated to the United States. By the provisions of the federal compact, these separate and sovereign communities committed to a general council the management of certain interests common to them all; in that council they were represented equally, each State having one vote; but as neither the powers conferred upon that body, nor the restraints imposed by the States upon themselves, were to be enforced by any agreed sanctions, the parties to the compact were left to a voluntary performance of their stipulations. Still, there were certain powers which the States agreed should be exercised by the United States in Congress assembled, and certain duties towards the confederacy which they agreed to discharge; and therefore, so far as authority and jurisdiction had been conferred upon the United States, so far they had been surrendered by the States. The peculiarity of the case was, that the powers surrendered were ineffectual for the want of appropriate means of coercion. These powers the States did not propose to recall. The Union was unbroken, though feeble, and trembling on the verge of dissolution. The purpose of all was to strengthen and secure its powers, to add somewhat to their number, and to render the whole efficient and operative by providing some form of direct and compulsory authority. For this end, as members of an existing confederacy, in possession of all the powers not previously delegated to the Union, the States had assembled upon the same equality, and under the same form of representation, with which they had always acted in the Congress. As the States had conferred certain powers upon the Confederation, so it was equally competent to them to enlarge and add to those powers. They had formed State governments, and established written constitutions. But the people of the States, and not their governments, held the supreme, absolute, and uncontrollable power. They had created, and they could modify or destroy; they could withdraw the powers conferred upon one class of agents, and bestow them upon another class. What was wanted was the discovery of some mode of proceeding, which, by involving the consent of the State governments, would avoid the appearance and the reality of revolution, and make the contemplated changes consist with the American idea of constitutional action. Here also it seems proper to state the reasons why the process of framing the Constitution is so important as to demand a careful exhibition of the proceedings of those to whom this great undertaking was intrusted. The Convention had confessedly no power to enact or establish anything. It was a representative body, clothed with authority to agree upon a system of government to be recommended to the adoption of their constituents. The constituents were twelve of the thirteen States of the confederacy, each having an equal voice and vote in the proceedings; but neither the assent nor the dissent of a State, in the Convention, to the whole system, or to any part of it, bound the people of that State to receive or to reject it when it should come before them. Still, the results of the various determinations of a majority of the States in this body; the purposes of particular provisions which those results clearly disclose; the relations which they evince between the different parts of the system,--are all of the utmost importance in determining the sense in which the whole ultimately came before the enacting authority for approval or rejection. If, for example, a majority of the States came to a very early determination that the principle of the government should no longer be that of an exclusive representation of States, but should include a representation of the people of the different States in some fair and equitable ratio; if they adhered to this throughout their deliberations, and adjusted everything with reference to it; and if, when they finally provided for a mode of establishing the new system, they submitted it directly to the people of each State to declare whether they would be so represented,--it is manifest that these results of their action have much to do with the inquiry, What is the true nature of the present government of the United States? Every student of the proceedings and discussions in the national Convention should, however, be careful not to extend this principle of general interpretation to the views, opinions, or arguments expressed or employed by individuals in that assembly. The line of argument or illustration adopted by different members may be more or less important, as tending to explain the scope or purpose of a particular decision arrived at by a vote of the Convention; and occasionally, as will be seen in reference to the arrangements which were finally entered into as mutual concessions or compromises between different interests, the discussions will be found to be of great significance and importance. But it is, after all, to the results themselves, and to the principles involved in the various decisions of the Convention, as indicated by the votes taken, that we are to look for the landmarks that are to guide our inquiries into the fundamental changes, improvements, and additions proposed by the Convention to the country, and afterwards adopted by the people of the States. FOOTNOTES: [1] Rhode Island. [2] New Jersey specifically contemplated a regulation of commerce. See the proceedings of Congress, and those of the States, _ante_, Vol. I. pp. 361, 367, notes. [3] Thus, for example, the regulation of commerce was not one of the original purposes for which the Union was formed in 1775 or in 1781. But it became one of the exigencies of the Union, by becoming a national want, and by the revealed incompetency of most of the States to deal with the subject so as to promote their own welfare, or to avoid injury to their confederates. So of a great many other things, for which we must resort, as the framers of the Constitution resorted, to the history of the times. [4] See the preamble to the act of Virginia, _ante_, Vol. I. p. 367, note. [5] See the Resolve of Congress, passed April 18, 1783, proposing to amend the Articles of Confederation. This Resolve was the origin of the proportion of three fifths, in counting the slaves. See _post_, Chapter II. p. 48; _ante_, Vol. I. p. 213, note 2. [6] Madison, Elliot, V. 96. [7] Ibid. 124. [8] Elliot, I. 126. [9] Ibid. 351. CHAPTER II. CONSTRUCTION OF A LEGISLATIVE POWER.--BASIS OF REPRESENTATION, AND RULE OF SUFFRAGE.--POWERS OF LEGISLATION. The Convention having been organized, Governor Randolph of Virginia[10] submitted a series of resolutions, embracing the principal changes that ought to be proposed in the structure of the federal system. Mr. Charles Pinckney of South Carolina also submitted a plan of government, which, with Governor Randolph's resolutions, was referred to a committee of the whole. It is not necessary here to state the details of these several systems; for although that introduced by Randolph gave a direction to the deliberations of the committee, the results arrived at were in some respects materially different. The first distinct departure that was made from the principles of the Confederation was involved in one of the propositions brought forward by Governor Randolph, "that a NATIONAL government ought to be established, consisting of a supreme legislative, executive, and judiciary"; and as this proposition was affirmed in the committee by a vote of six States, it is important to understand the sense in which it was understood by them.[11] Most of the framers of the Constitution seem to have considered that a compact between sovereign States, which rested for its efficacy on the good faith of the parties, and had no other compulsory operation than a resort to arms against a delinquent member, was a "federal" government. This was the principle of the Confederation. At this early stage of their deliberations, the idea which was intended by those who favored a change of that principle, when they spoke of a "national" government, was one that would be a supreme power with respect to certain national objects committed to it, and that would have some kind of direct compulsory action upon individuals. This distinction was understood by all to be real and important. It led directly to the question of the powers of the Convention, and formed the early line of division between those who desired to adhere to the existing system, and those who aimed at a radical change. The former admitted the necessity for a more effective government, and supposed that the Confederation could be made so by distributing its powers into the three great departments of a legislative, executive, and judiciary; but they did not suggest any mode by which those powers could be made supreme over the authority of the separate States. The latter contended, that there could be no such thing as government unless it were a supreme power, and that there could be but one supreme power over the same subjects in the same community; that supreme power could not from the nature of things act on the States collectively, in the usual and peaceful mode in which the operations of government ought to be conducted, but that it must be able to reach individuals; and that, as the Confederation could not operate in this way, the distribution of its powers into distinct departments would be no improvement upon the present condition of things. But when the distinction between a national and a federal government had been so far developed, the subject was still left in a great degree vague and indeterminate. What was to mark this distinction as real, and give it practical effect? By what means was the government, which was now, as all admitted, a mere federal league between sovereign States, to become, in any just sense, national? The idea of a nation implies the existence of a people united in their political rights, and possessed of the same political interests. A national government must be one that exercises the political rights, and protects the political interests, of such a people. But, hitherto, the people of the United States had been divided into distinct sovereignties; and although by the Articles of Confederation some portion of the sovereign power of each of the separate States had been vested in a general government, that government had been found inefficient, and incapable of resisting the great power that had been reserved to the respective States, and was constantly exerted by them. The difficulty was, that the constituent parties to the federal union were themselves political governments and sovereigns; the people of the States had no direct representation, and no direct suffrage, in the general legislature; and as in a republican government the representation and the suffrage must determine its character, it became obvious that, in order to establish a national government that would embrace the political rights and interests of the people inhabiting the States, the basis of representation and the rule of suffrage must be changed. It being assumed that the new government was to be divided into the three departments of the legislative, executive, and judiciary, several questions at once presented themselves with regard to the constitution of the national legislature. Was it to consist of one or of two houses? and if the latter, what was to be the representation and the rule of suffrage in each? The resolutions of Governor Randolph raised the question as to the rule of suffrage, before the committee had determined on the division of the legislative power into two branches. One of his propositions was, "That the rights of suffrage in the national legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases." This was no sooner propounded, than a difficulty was suggested by the deputies of the State of Delaware, which threatened to impede the whole action of the Convention. They declared that they felt restrained by their commissions from assenting to any change of the rule of suffrage, and announced their determination to retire from the Convention if such a change were adopted. The firmness and address of Madison and Gouverneur Morris surmounted this obstacle. They declared that the proposed change was absolutely essential to the formation of a national government; but they consented to postpone the question, having ascertained that it would finally be carried.[12] The committee thereupon immediately determined that the national legislature should consist of two branches,[13] and proceeded to consider the mode of representation and suffrage in both. As the discussions proceeded, the members became divided into two parties upon the general subject; the one was for a popular basis and a proportionate representation in both branches; the other was in favor of an equal representation by States in both. The first issue between them was made upon the House, or what was termed the first branch of the legislature. On the one side it was urged, that to give the election of this branch to the people of the States would make the new government too democratic; that the people were unsafe depositaries of such a power, not because they wanted virtue, but because they were liable to be misled; and that the State legislatures would be more likely to appoint suitable persons. On the other hand, it was admitted that an election of the more numerous branch of the national legislature by the people would introduce a true democratic principle into the government, and this, it was said, was necessary. It was urged that this branch of the legislature ought to know and sympathize with every part of the community, and ought therefore to be taken, not only from different parts of the republic, but also from different districts of the larger members of it. The broadest possible basis, it was said, ought to be given to the new system; and as that system was to be republican, a direct representation of the people was indispensable. To increase the weight of the State legislatures, by making them electors of the national legislature, would only perpetuate some of the worst evils of the Confederation. A decided majority of the States sustained the election of the first branch of the national legislature by the people.[14] Great efforts were, however, subsequently made to change this decision; and the discussion which ensued on a motion that this branch should be elected by the State legislatures, throws much light upon the nature of the government which the friends of an election by the people were aiming to establish. From that discussion it appears that the idea was already entertained of forming a government that should have a vigorous authority derived directly from the people of the States,--one that should possess both the force and the sense of the people at large. For the formation of such a government one of two courses was necessary: either to abolish the State governments altogether; or to leave them in existence, and to regard the people of each State as competent to withdraw from their local governments such portions of their political power as they might see fit to bestow upon a national government. The latter plan was undoubtedly a novelty in political science; for no system of government had yet been constructed in which the individual stood in the relation of subject to two distinct sovereignties, each possessed of a distinct sphere, and each supreme in its own sphere. But if the American doctrine were true, that all supreme power resides originally in the people, and that all governments are constituted by them as the agents and depositaries of that power, there could be no incompatibility in such a system. The people who had deposited with a State government the sovereign power of their community, could withdraw it at their pleasure; and as they could withdraw the whole, they could withdraw a part of it. If a part only were withdrawn, or rather, if the supreme power in relation to particular objects were to be taken from the State governments, and vested in another class of agents, leaving the authority of the former undiminished except as to those particular objects, the individual might owe a double allegiance, but there could be no confusion of his duties, provided the powers withdrawn and revested were clearly defined. The advocates of a national government, besides and beyond the intrusting of a particular jurisdiction to that government, wished to make it certain that its legislative power, in each act of legislation, should rest on the direct authority of the people. For this purpose they desired to avoid all agency of the State governments in the appointment of the members of the national legislature. They held this to be necessary for two reasons. In the first place, they said that in a national government the people must be represented; and that in a republican system the real constituent should act directly, and without any intermediate agency, in the appointment of the representative. In the second place, they deduced from the objects of a national government the necessity for excluding the agency of the State governments in the appointment of those who were to exercise its legislative power. Those objects, they contended, were not fully stated by their opponents. The latter generally regarded the objects of the Union as confined to defence against foreign danger and internal disorder; the power to make binding treaties with foreign countries; the regulation of commerce, and the power to derive revenues therefrom.[15] The former insisted that another great object must be, to provide more effectually for the security of private rights, and the steady dispensation of justice. Mr. Madison declared that republican liberty could not long exist under the abuses of it which had been practised in some of the States, where the uncontrollable power of a majority had enabled debtors to elude their creditors, the holders of one species of property to oppress the holders of another species, and where paper money had become a stupendous fraud. These evils had made it manifest that the power of the State governments, even in relation to some matters of internal legislation, must be to some extent restrained; and in order effectually to restrain it, the national government must, in the construction of its departments, as well as in its powers, be derived directly from the people.[16] These views again prevailed as to the first branch, and Mr. Pinckney's proposition for electing that branch by the State legislatures was negatived by a vote of three States in the affirmative, and eight in the negative.[17] But as soon as the impracticability of abolishing the State governments was seen and admitted,--and it was at once both seen and admitted by some of the strongest advocates for a national government,--it became apparent to a large part of the assembly, that to exclude those governments from all agency in the election of both branches of the national legislature would be inexpedient. It would obviously have been theoretically correct to have given the election of both the Senate and the House to the people of the States, especially when it was intended to adhere to the principle of a proportionate representation of the people of the States in both branches.[18] But the necessity for providing some means by which the States, as States, might defend themselves against encroachments of the national government, made it apparent that they must become, in the election, a constituent part of the system. No mode of doing this presented itself, except to give the State legislatures the appointment of the less numerous branch of the national legislature,--a provision which was finally adopted in the committee by the unanimous vote of the States.[19] The results thus reached had settled for the present the very important fact, that the people of the States were to be represented in both branches of the legislature; that for the one they were to elect their representatives directly, and for the other they were to be elected by the legislature of the State. But when it had been ascertained by whom the members of the two branches were to be elected, there remained to be determined the decisive question, which was to mark still more effectively the distinction between a purely national and a purely federal government, namely, the rule of suffrage, or the ratio of representation in the national legislature. The rule of suffrage adopted in the first Continental Congress was, as we have seen, the result of necessity; for it was impossible to ascertain the relative importance of each Colony; and, moreover, that Congress was in fact an assembly of committees of the different Colonies, called together to deliberate in what mode they could aid each other in obtaining a redress of their several grievances from Parliament and the Crown. But while, from the necessity of the case, they assigned to each Colony one vote in the Congress, they looked forward to the time when the relative wealth or population of the Colonies must regulate their suffrage in any future system of continental legislation.[20] The character of the government formed by the Articles of Confederation had operated to postpone the arrival of this period; because it was in the very nature of that system that each State should have an equal voice with every other. This system was the result of the formation of the State governments, each of which had become the present depositary of the political powers of an independent people. But if this system were to be changed,--if the people of the States were to be represented in each branch of the national legislature,--some ratio of representation must be adopted, or the idea of connecting them as a nation with the government that was to be instituted must be abandoned. It was obviously for the interest of the larger States, such as Virginia, Pennsylvania, and Massachusetts,--then the three leading States in point of population,--to have a proportionate representation of their whole inhabitants, without reference to age, sex, or condition. On the other hand, it was for the interest of the smaller States to insist on an equality of votes in the national legislature, or at least on the adoption of a ratio that would exclude some portions of the population of the great States. Some of the lesser States were exceedingly strenuous in their efforts to accomplish these objects, and more than once, in the course of the proceedings, declared their purpose to form a union on no other basis. In this posture of things the alternatives were, either to form no union at all, or only to form one between the large States willing to unite on the basis of proportionate representation; or to abolish the State governments, and throw the whole into one mass; or to leave the distinctions and boundaries between the different States, and adopt some equitable ratio of suffrage, as between the people of the several States, in the national legislature. The latter course was adopted in the committee, as to the first branch, by a vote of seven States in the affirmative, against three in the negative, one being divided.[21] The question was then to be determined, by what ratio the representation of the different States should be regulated; and here again any one of several expedients might be adopted. The basis of representation might be made to consist of the whole number of voters, or those on whom the States had conferred the elective franchise; or it might be confined to the white inhabitants, excluding all other races; or it might include all the free inhabitants of every race, excluding only the slaves; or it might embrace the whole population of each State. Some examination of each of these plans will illustrate the difficulties which had to be encountered. To have adopted the number of legal voters of the States as the ratio of representation in the national legislature would have been to adopt a system in which there were great existing inequalities. The elective franchise had been conferred in the different States upon very different principles; it was very broad in some of the States, and much narrower in others, according to their peculiar policy and manners. These inequalities could scarcely have been removed; for the right of suffrage in some of the States was more or less connected with their systems of descent and distribution of property, and those systems could not readily be changed, so as to adapt the condition of society to the new interest of representation and influence in the general government. This plan was, therefore, out of the question. It was nearly as impracticable, also, to confine the basis of representation to the white inhabitants of the States. Some of the States--such as Massachusetts, Connecticut, Rhode Island, New York, and Pennsylvania, in which slavery was already, or was ultimately to become, extinct, and Maryland, North Carolina, and Virginia, where slavery was likely to remain--had large numbers of free blacks. These inhabitants, who were regarded as citizens in some of the States, but not in others, were in all a part of their populations, contributing to swell the aggregate of the numbers and wealth of the State, and thus to raise it in the scale of relative rank. Their personal consequence, or social rank, was a thing too remote for special inquiry. A State that contained five or ten thousand of these inhabitants might well say, that, although of a distinct race, they formed an aggregate portion of its free population, too large to be omitted without opening the door to inquiries into the condition and importance of other classes of its free inhabitants. This was the situation of all the Northern States except New Hampshire, as well as of all the Middle and Southern States; and it was especially true of Virginia, which had nearly twice as many free colored persons as any other State in the Union. It was equally impracticable to form a national government in which the basis of representation should be confined to the free inhabitants of the States. The five States of Maryland, Virginia, North Carolina, South Carolina, and Georgia, including their slaves, were found by the first census, taken three years after the formation of the Constitution, to contain a fraction less than one half of the whole population of the Union.[22] In three of those States the slaves were a little less than half, and in two of them they were more than half, as numerous as the whites.[23] There was no good reason, therefore,--except the theoretical one that a slave can have no actual voice in government, and consequently does not need to be represented,--why a class of States containing nearly half of the whole population of the confederacy should consent to exclude such large masses of their populations from the basis of representation, and thereby give to the free inhabitants of each of the other eight States a relatively larger share of legislative power than would fall to the free inhabitants of the States thus situated. The objection arising from the political and social condition of the slaves would have had great weight, and indeed ought to have been decisive of the question, if the object had been to efface the boundaries of the States, and to form a purely consolidated republic. But this purpose, if ever entertained at all, could not be followed by the framers of the Constitution. They found it indispensable to leave the States still in possession of their distinct political organizations, and of all the sovereignty not necessary to be conferred on the central power, which they were endeavoring to create by bringing the free people of these several communities into some national relations with each other. It became necessary, therefore, to regard the peculiar social condition of each of the States, and to construct a system of representation that would place the free inhabitants of each distinct State upon as near a footing of political equality with the free inhabitants of the other States as might, under such circumstances, be practicable. This could only be done by treating the slaves as an integral part of the population of the States in which they were found, and by assuming the population of the States as the true basis of their relative representation. It was upon this idea of treating the slaves as inhabitants, and not as chattels, or property, that the original decision was made in the committee of the whole, by which it was at first determined to include them.[24] Having decided that there ought to be an equitable ratio of representation, the committee went on to declare that the basis of representation ought to include the whole number of white and other free citizens and inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years; and they then added to the population thus described three fifths of all other persons not comprehended in that description, except Indians not paying taxes. The proportion of three fifths was borrowed from a rule which had obtained the sanction of nine States in Congress, in the year 1783, when it was proposed to change the basis of contribution by the States to the expenses of the Union from property to population.[25] At that time, the slaveholding States had consented that three fifths of their slaves should be counted in the census which was to fix the amount of their contributions; and they now asked that, in the apportionment of representatives, these persons might still be regarded as inhabitants of the State, in the same ratio. The rule was adopted in the committee, with the dissent of only two States, New Jersey and Delaware; but on the original question of substituting an equitable ratio of representation for the equality of suffrage that prevailed under the Confederation, New York united with New Jersey and Delaware in the opposition, and the vote of Maryland was divided. The next step was to settle the rule of suffrage in the Senate; and although it was earnestly contended that the smaller States would never agree to any other principle than an equality of votes in that body,[26] it was determined in the committee, by a vote of six States against five, that the ratio of representation should be the same as in the first branch.[27] Thus it appears that originally a majority of the States were in favor of a numerical representation in both branches. The three States of Virginia, Pennsylvania, and Massachusetts, the leading States in population, and with them North Carolina, South Carolina, and Georgia, found it at present for their interest to adopt this basis for both houses of the national legislature. It was a consequence of the principle of numerical representation, that the slaves should be included; and it does not appear that at this time any delegate from a Northern State interposed any objection, except Mr. Gerry of Massachusetts, who regarded the slaves as "property," and said that the cattle and horses of the North might as well be included. But the State which he represented was at this time pressing for the rights of population, and for a system in which population should have its due influence; and her vote, as well as that of Pennsylvania, was accordingly given for the principle which involved an admission of the slaves into the basis of representation, and for the proportion which the slave States were willing to take. These transactions in the committee of the whole are quite important, because they show that the original line of division between the States, on the subject of representation, was drawn between the States having the preponderance of population and the States that were the smallest in point of numbers. When, and under what circumstances, this line of division changed, what combinations a nearer view of all the consequences of numerical representation may have brought about, and how the conflicting interests were finally reconciled, will be seen hereafter. What we are here to record is the declaration of the important principle, that the legislative branch of the government was to be one in which the free people of the States were to be represented, and to be represented according to the numbers of the inhabitants which their respective States contained, counting those held in servitude in a certain ratio only. The general principles on which the powers of the national legislature were to be regulated, were declared with a great degree of unanimity. That it ought to be invested with all the legislative powers belonging to the Congress of the Confederation was conceded by all. This was followed by the nearly unanimous declaration of a principle, which was intended as a general description of a class of powers that would require subsequent enumeration, namely, that the legislative power ought to embrace all cases to which the State legislatures were incompetent, or in which the harmony of the United States would be interrupted by the exercise of State legislation. But the committee also went much farther, and without discussion or dissent declared that there ought also to be a power to negative all laws passed by the several States contravening, in the opinion of the national legislature, the Articles of Union, or any treaties made under the authority of the Union.[28] The somewhat crude idea of making a negative on State legislation a legislative power of the national government, shows that the admirable discovery had not yet been made of exercising such a control through the judicial department. Without such a control lodged somewhere, the national prerogatives could not be defended, however extensive they might be in theory. There had been, as Mr. Madison well remarked, a constant tendency in the States to encroach on the federal authority, to violate national treaties, to infringe the rights and interests of each other, and to oppress the weaker party within their respective jurisdictions. The expedient that seemed at first to be the proper remedy, and, as was then supposed, the only one that could be employed as a substitute for force, was to give the general government a power similar to that which had been exercised over the legislation of the Colonies by the crown of England, before the Revolution; and there were some important members of the Convention who at this time thought that this power ought to be universal.[29] They considered it impracticable to draw a line between the cases proper and improper for the exercise of such a negative, and they argued from the correctness of the principle of such a power, that it ought to embrace all cases. But here the complex nature of the government which they were obliged to establish made it necessary to depart from the theoretical correctness of a general principle. The sovereignty of the States would be entirely inconsistent with a power in the general government to control their whole legislation. As the direct authority of the national legislature was to extend only to certain objects of national concern, or to such as the States were incompetent to provide for, all the political powers of the States, the surrender of which was not involved in the grant of powers to the national head, must remain; and if a general superintendence of State legislation were added to the specific powers to be conferred on the central authority, there would be in reality but one supreme power in all cases in which the general government might see fit to exercise its prerogative. The just and proper sphere of the national government must be the limit of its power over the legislation of the States. In that sphere it must be supreme, as the power of each State within its own sphere must also be supreme. Neither of them should encroach upon the prerogatives of the other; and while it was undoubtedly necessary to arm the national government with some power to defend itself against such encroachments on the part of the States, there could be no real necessity for making this power extend beyond the exigencies of the case. Those exigencies would be determined by the objects that might be committed to the legislation of the central authority; and if a mode could be devised, by which the States could be restrained from interfering with or interrupting the just exercise of that authority, all that was required would be accomplished.[30] But to do this by means of a negative that was to be classed among the legislative powers of the new government, was to commit the subject of a supposed conflict between the rights and powers of the State and the national governments to an unfit arbitration. Such a question is of a judicial nature, and belongs properly to a department that has no direct interest in maintaining or enlarging the prerogatives of the government whose powers are involved in it. But the framers of the Constitution had come fresh from the inconveniences and injustice that had resulted from the unrestrained legislative powers of the States. Some of them believed it, therefore, to be necessary to make the authority of the United States paramount over the authority of each separate State; and a negative upon State legislation, to be exercised by the legislative branch of the national government, seemed to be the readiest way of accomplishing the object. Some of the suggestions of the mode in which this power was to operate strike us, at the present day, as singularly strange. No less a person than Mr. Madison, in answer to the objections arising from the practical difficulties in subjecting all the legislation of all the States to the revision of a central power, thought at this time that something in the nature of a commission might be issued into each State, in order to give a temporary assent to laws of urgent necessity. He suggested also that the negative might be lodged in the Senate, in order to dispense with constant sessions of the more numerous branch. But the radical objection to any plan of a negative on State legislation, as a legislative power of the general government, was, that it would not in fact dispense with the use of force against a State in the last resort. If, after the exercise of the power, the State whose obnoxious law had been prohibited should see fit to persist in its course, force must be resorted to as the only ultimate remedy. How different, how wise, was the expedient subsequently devised, when the appropriate office of the judicial power was discerned,--a power that waits calmly until the clashing authorities of the State and the nation have led to a conflict of right or duty in some individual case, and then peacefully adjudicates, in a case of private interest, the great question, with which of the two governments resides the power of prescribing the paramount rule of conduct for the citizen! Disobedience on the part of the State may, it is true, still follow after such an adjudication, and against an open array of force on the one side nothing but force remains to be employed on the other. But the great preventive of this dread necessity is found in the fact, that there has been an adjudication by a tribunal that commands the confidence of all, and in the moral influence of judicial determinations over a people accustomed to submit not only their interests, but their feelings even, to the arbitrament of juridical discussion and decision. * * * * * TABLE EXHIBITING THE POPULATIONS OF THE THIRTEEN STATES, ACCORDING TO THE CENSUS OF 1790. N. B.--In this abstract Maine is not included in Massachusetts, nor Kentucky and Tennessee in the States from which they were severed. +----------------+-----------+---------------+---------+-----------+ | | Whites. | Free Colored. | Slaves. | Total. | | +-----------+---------------+---------+-----------+ |New Hampshire, | 141,111 | 630 | 158 | 141,899 | |Massachusetts, | 373,254 | 5,463 | ..... | 378,717 | |Rhode Island, | 64,689 | 3,469 | 952 | 69,110 | |Connecticut, | 232,581 | 2,801 | 2,759 | 238,141 | |New York, | 314,142 | 4,654 | 21,324 | 340,120 | |New Jersey, | 169,954 | 2,762 | 11,423 | 184,139 | |Pennsylvania, | 424,099 | 6,537 | 3,737 | 434,373 | |Delaware, | 46,310 | 3,899 | 8,887 | 59,096 | |Maryland, | 208,649 | 8,043 | 103,036 | 319,728 | |Virginia, | 442,115 | 12,765 | 293,427 | 748,307 | |North Carolina, | 288,204 | 4,975 | 100,572 | 393,751 | |South Carolina, | 140,178 | 1,801 | 107,094 | 249,073 | |Georgia, | 52,886 | 398 | 29,264 | 82,548 | | +-----------+---------------+---------+-----------+ | Aggregate, | 2,898,172 | 58,197 | 682,633 | 3,639,002 | +----------------+-----------+---------------+---------+-----------+ Total population of the eight States in 1790, in which slavery had been or has since been abolished, 1,845,595. Total population of the five States in 1790, in which slavery existed, and still exists, 1,793,407. FOOTNOTES: [10] Edmund Randolph. See _ante_, Vol. I. p. 480. [11] Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, _ay_, 6; Connecticut, _no_, 1; New York divided (Colonel Hamilton _ay_, Mr. Yates _no_). Madison, Elliot, V. 132, 134. [12] Madison, Elliot, V. 134, 135. [13] Ibid. 135. The vote of Pennsylvania, in compliance with the wishes of Dr. Franklin, was given for a single house. [14] Massachusetts, New York, Pennsylvania, Virginia, North Carolina, Georgia, _ay_, 6; New Jersey, South Carolina, _no_, 2; Connecticut and Delaware divided. [15] See Mr. Sherman's remarks, made in committee, June 6; Madison, Elliot, V. 161. [16] See Mr. Madison's views, as stated in his debates, Elliot, V. 161. [17] Connecticut, New Jersey, South Carolina, _ay_, 3; Massachusetts, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, _no_, 8. [18] Mr. Wilson was in favor of this plan, and Mr. Madison seems to have favored it. [19] Madison, Elliot, V. 170. [20] _Ante_, Vol. I. Book I. ch. I. pp. 15-17. [21] Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, _ay,_ 7; New York, New Jersey, Delaware, _no_, 3; Maryland, divided. [22] They contained 1,793,407 inhabitants; the other eight States had 1,845,595 when the federal census of 1790 was taken. [23] See the census of 1790, _post_, p. 55. [24] The population of the States was adopted in the committee of the whole, instead of their quotas of contribution, which, in one or another form, was the alternative proposition. The slaves were included, in a proportion accounted for in the text, as a part of the aggregate _population_; and it was not until a subsequent stage of the proceedings that this result was defended on the ground of their forming part of the aggregate _wealth_ of the State. [25] _Ante_, Vol. I. Book II. ch. III. p. 213, note 2, where the origin of the proportion of three fifths is explained. [26] By Mr. Sherman and Mr. Ellsworth. [27] Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, _ay_, 6; Connecticut, New York, New Jersey, Delaware, Maryland, _no_, 5. Elliot, V. 182. [28] Madison, Elliot, V. 139. [29] Mr. Madison, Mr. Wilson, Mr. C. Pinckney, Mr. Dickinson. On the other hand, Mr. Williamson, Mr. Sherman, Mr. Bedford, and Mr. Butler strenuously opposed this plan. [30] Accordingly, a proposition to extend the negative on State legislation to all cases received the votes of three States only, viz. Massachusetts, Pennsylvania, and Virginia. CHAPTER III. CONSTRUCTION OF THE EXECUTIVE AND THE JUDICIARY. The construction of a national executive, although not surrounded by so many inherent practical difficulties as the formation of the legislative department, was likely to give rise to a great many opposite theories. The questions, of how many persons the executive ought to consist, in what mode the appointment should be made, and what were to be its relations to the legislative power, were attended with great diversities of opinion. The question whether the executive should consist of one, or of more than one person, was likely to be influenced by the nature of the powers to be conferred upon the office. Foreseeing that it must necessarily be an office of great power, some of the members of the Convention thought that a single executive would approach too nearly to the model of the British government. These persons considered that the great requisites for an executive department--vigor, despatch, and responsibility--could be found in three persons as well as in one. Those, on the other hand, who favored the plan of a single magistrate, maintained that the prerogatives of the British monarchy would not necessarily furnish the model for the executive powers; and that unity in the executive would be the best safeguard against tyranny. But this point connected itself with the question, whether the executive should be surrounded by a council, and the latter proposition again involved the consideration of the precise relation of the executive to the legislative power. That a negative of some kind upon the acts of the legislature was essential to the independence of the executive, was a truth in political science not likely to escape the attention of many of the members of the Convention. Whether it should be a qualified or an absolute negative was the real, and almost the sole question; for although there were some who held the opinion that no such power ought to be given, it was evident from the first that its necessity was well understood by the larger part of the assembly. In the first discussion of this subject, the negative was generally regarded as a means of defence against encroachments of the legislature on the rights and powers of the other departments. It was supposed that, although the boundaries of the legislative authority might be marked out in the Constitution, the executive would need some check against unconstitutional interference with its own prerogatives; and that, as the judicial department might be exposed to the same dangers, the power of resisting these also could be best exercised by the executive. But an absolute negative for any purpose was favored by only a very few of the members, and the proposition first adopted was to give the executive alone a revisionary check upon legislation, which should not be absolute if it were afterwards overruled by two thirds of each branch of the legislature.[31] But inasmuch as this provision would leave the precise purposes of the check undetermined, and in order, as it would seem, to subject the whole of the legislative acts to revision and control by the executive, some of the members desired that the judiciary, or a convenient number of the judges, might be added to the executive as a council of revision. Among these persons were Mr. Madison and Mr. Wilson. The former expressed a very decided opinion, that, whether the object of a revisionary power was to restrain the encroachments of the legislature on the other departments, or on the rights of the people at large, or to prevent the passage of laws unwise in principle or incorrect in form, there would be great utility in annexing the wisdom and weight of the judiciary to the executive. But this proposition was rejected by a large majority of the States, and the power was left by the committee as it had been settled by their former decision. These proceedings, however, do not furnish any decisive evidence of the nature and purpose of the revisionary check. But before this feature of the Constitution had been settled by the committee, they had determined on a mode in which the executive should be appointed. It is singular that the idea of an election of the executive by the people, either mediately or immediately, found so little favor at first, that on its first introduction it received the votes of but two States. Since the executive was to be the agent of the legislative will, it was argued by some members that it ought to be wholly dependent, and ought therefore to be chosen by the legislature. The experience of New York and of Massachusetts, on the other hand,--where the election of the first magistrate by the people had been successfully practised,--and the danger that the legislature and the candidates might play into each other's hands, and thus give rise to constant intrigues for the office, were the arguments employed by others. Upon the introduction of a proposition that the States be divided into districts, for the election by the people of electors of the executive, two States only recorded their votes in its favor, and eight States voted against it.[32] By the vote of eight States it was then determined that the executive should be elected by the national legislature for the term of seven years;[33] and subsequently it was determined that the executive should be ineligible to a second term of office, and should be removable on impeachment and conviction of malpractice or neglect of duty. A single executive was agreed to by a vote of seven States against three.[34] After the mode in which the negative was to be exercised had been settled, an attempt was made to change the appointment, and vest it in the executives of the States. But this proposal was decisively rejected.[35] The judiciary was the next department of the proposed plan of government that remained to be provided. Like the executive, it was a branch of sovereign power unknown to the Confederation. The most palpable defect of that government, as I have more than once had occasion to observe, was the entire want of sanction to its laws. It had no judicial system of its own for decree and execution against individuals. All its legislation, both in nature and form, prescribed duties to States. The observance of these duties could only be enforced against the parties on whom they rested, and this could be done only by military power. But it was the peculiar and anomalous situation of the American Confederacy, that the power to employ force against its delinquent members had not been expressly delegated to it by the Articles of Union; and that it could not be implied from the general purposes and provisions of that instrument, without a seeming infraction of the article by which the States had reserved to themselves every power, jurisdiction, and right not "expressly" delegated to the United States. If this objection was well founded,--and it was universally held to be so,--we may well concur in the remark of The Federalist, that "the United States presented the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws."[36] The Confederation, too, had found it to be entirely impracticable to rely on the tribunals of the States for the execution of its laws. Such a reliance in a confederated government presupposes that the party guilty of an infraction of the laws or ordinances of the confederacy will try, condemn, and punish itself. The whole history of our Confederation evinces the futility of laws requiring the obedience of States, and proceeding upon the expectation that they will enforce that obedience upon themselves. The necessity for a judicial department in the general government was, therefore, one of the most prominent of those "exigencies of the Union," for which it was the object of the present undertaking to provide. The place which that department was to occupy in a national system could be clearly deduced from the office of the judiciary in all systems of constitutional government. That office is to apply to the subjects of the government the penalties inflicted by the legislative power for disobedience of the laws. Disobedience of the lawful commands of a government may be punished or prevented in two modes. It may be done by the application of military power, without adjudication; or it may be done through the agency of a tribunal, which adjudicates, ascertains the guilty parties, and applies to them the coercion of the civil power. This last is the peculiar function of a judiciary; and in order that it may be discharged effectually, the judiciary that is to perform this office must be a part of the government whose laws it is to enforce. It is essential to the supremacy of a government, that it should adjudicate on its own powers, and enforce its own laws; for if it devolves this prerogative on another and subordinate authority, the final sanction of its laws can only be by a resort to military power directed against those who have refused to obey its lawful commands. One of the leading objects in forming the Constitution was to obtain for the United States the means of coercion, without a resort to force against the people of the States collectively. Mr. Madison, at a very early period in the deliberations of the Convention, declared that the use of force against a State would be more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.[37] At his suggestion, a clause in Governor Randolph's plan authorizing the use of force against a delinquent member of the confederacy was laid aside, in order that a system might be framed which would render it unnecessary. This could be done only by making the authority of the government supreme in relation to the rights and powers that might be committed to it; and it could be made so only by applying its legislation to individuals through the intervention of a judiciary. A confederacy whose legislative power operates only upon States, or upon masses of people in a collective capacity, can be supreme only so far as it can employ superior force; and when the issue that is to determine the question of supremacy is once made up in that form, there is an actual civil war. The introduction, therefore, of a judicial department into the new plan of government, of itself evinces an intention to clothe that government with powers that could be executed peacefully, and without the necessity of putting down the organized opposition of subordinate communities. By their resort to this great instrumentality, we may perceive how much, in this particular, the framers of the Constitution were aided by the spirit and forms of the institutions which the people of these States had already framed for their separate governments. The common law, which the founders of all these States had brought with them to this country, had accustomed them to regard the judiciary as clothed with functions in which two important objects were embraced. By the known course of that jurisprudence the judiciary is, in the first place, the department which declares the construction of the laws; and, in the second place, when that department has announced the construction of a law, it is not only the particular case that is settled, but the rule is promulgated that is to determine all future cases of the same kind arising under the same law. Thus the judiciary, in governments whose adjudications proceed upon the course of the common law, becomes not merely the arbitrator in a particular controversy, but the department through which the government interprets the rule of action prescribed by the legislature, and by which all its citizens are to be guided. This office of the judicial department had long been known in all the States of the Union at the time of the formation of the national Constitution. By the introduction of this department into their plan of government, the framers of the Constitution obviously intended that it should perform the same office in their national system which the corresponding department had always fulfilled in the States. No other function of a judiciary was known to the people of the United States, and this function was both known and deemed essential to a well-regulated liberty. It was known that the judicial department of a government is that branch by which the meaning of its laws is ascertained, and applied to the conduct of individuals. To effect this, it was introduced into the system whose gradual formation and development we are now examining. The committee not only declared that this department, like the legislative and the executive, was to be "supreme," but they proceeded to make it so. One of the first questions that arose concerning the construction of the judiciary was, whether it should consist solely of one central tribunal, to which appeals might be carried from the State courts, or should also embrace inferior tribunals to be established within the several States. The latter plan was resisted as an innovation, which, it was said, the States would not tolerate. But the necessity for an effective judiciary establishment, commensurate with the legislative authority, was generally admitted, and a large majority of the States were found to be in favor of conferring on the national legislature power to establish inferior tribunals;[38] while the provision for a supreme central tribunal was to be made imperative by the Constitution. The intention of the committee also to make the judicial coextensive with the legislative authority, appears from the definition which they gave to both. Upon the national legislature they proposed to confer, in addition to the rights vested in Congress by the Confederation, power to legislate in all cases to which the separate States were incompetent, or in which the harmony of the United States might be interrupted by the exercise of individual legislation; and the further power to negative all laws passed by the several States contravening, in the opinion of the national legislature, the Articles of Union, or any treaties subsisting under the authority of the Union. The jurisdiction of the national judiciary it was declared should extend to all cases which respect the collection of the national revenue, and to impeachments of national officers; and then the comprehensive addition was made of "questions which involve the national peace and harmony." This latter provision placed the general objects, which it was declared ought to be embraced by the legislative power, within the cognizance of the judiciary. Those objects were not yet described in detail, the purpose being merely to settle and declare the principles on which the powers of both departments ought to be founded. But, as we have already had occasion to see, the idea of vesting in the judicial department such control over the legislation of the separate States as might be surrendered by them to the national government, was not yet propounded. The principle which was to ascertain the extent of that control was already introduced and acted upon, namely, that it should embrace all laws of the States which might conflict with the Constitution, or the treaties made under the national authority. The plan at present was, as we have seen, to treat this as a legislative power, to be executed by the direct control of a negative. But a nearer view of the great inconveniences of such an arrangement, and the general basis of the jurisdiction already marked out for the national judiciary, led to the development of the particular feature which was required as a substitute for direct interference with the legislative powers of the States. In truth, the important principle which proposed to extend the judicial authority to questions involving the national peace and harmony, embraced all the power that was required; and it only remained to be seen that the exercise of that power by the indirect effect of judicial action on the laws of the States after they had been passed, was far preferable to a direct interference with those laws while in the process of enactment. The committee, with complete unanimity, determined that the judges of the supreme tribunal should hold their offices during good behavior.[39] This tenure of office was taken from the English statutes, and from the constitutions of some of the States which had already adopted it. The commissions of the judges in England, until the year 1700, were prescribed by the crown; and although they were sometimes issued to be held during good behavior, they were generally issued during the pleasure of the crown, and it was always optional with the crown to adopt the one or the other tenure, as it saw fit. But in the statute passed in the thirteenth year of the reign of William III., which finally secured the ascendency of the Protestant religion in that country, and made other provisions for the rights and liberties of the subject, it was enacted that judges' commissions should be made during good behavior, and that their salaries should be ascertained and established; but it was made lawful for the crown to remove them upon the address of both houses of Parliament.[40] Still, however, it was always considered that the commissions of the judges expired on the death of the king; and for the purpose of preventing this, and in order to make the judges more effectually independent, a new statute, passed in the first year of the reign of George III., declared that the commissions of the judges should continue in force during their good behavior, notwithstanding the demise of the crown; and that such salaries as had been once granted to them should be paid in all future time, so long as their commissions should remain in force. The provision which made them removable by the crown on the address of both houses of Parliament was retained and re-enacted.[41] In framing the Constitution of the United States, the objectionable feature of the English system was rejected, and its valuable provisions were retained. No one, at the stage of the proceedings which we are now examining, proposed to make the judges removable on the address of the legislature; and although at a much later period this provision was brought forward, it received the vote of a single State only. The first determination of the Convention, in committee of the whole, was, that the judges should hold their offices during good behavior; that they should receive punctually, at stated times, a fixed compensation for their services, in which no _increase_[42] or diminution should be made so as to affect the persons actually in office at the time. The appointment of the judges was by general consent, at this stage of the proceedings, vested in the Senate. * * * * * NOTE ON THE JUDICIAL TENURE. The English historians and juridical writers have not given a very satisfactory account of the purpose for which the power of removal on the address of the two Houses of Parliament was incorporated with the provision which gave the judges their commissions during good behavior. It is obvious that, if the power of removal is to be regarded as an unqualified power, to be exercised for any cause, or without the existence of any cause, the office is held during the pleasure of the legislative and executive branches of the government, and not during the official good conduct of the incumbent. In this view of it, therefore, the provision is inconsistent with the declared tenure of the commission. On the other hand, if the _power_ of removal is not to be regarded as a limitation upon the tenure of the office, but the _process_ of removal is to be considered as a mode in which the unfitness or incapacity of the incumbent is to be ascertained,--treating it as a substitute for impeachment, to be used in cases of palpable official incapacity or unfitness,--then it is not repugnant to the tenure of good behavior. In support of this view of the subject it is to be observed that, in the statute of 1 Geo. III. c. 23, the tenure of good behavior is made the leading and primary object of the enactment. The motives for it are set forth with great point and emphasis. The King is made to declare from the throne to the two houses of Parliament that he looks upon the independency and uprightness of judges as essential to the impartial administration of justice, as one of the best securities to the rights and liberties of the subject, and as most conducive to the honor of the crown. The enacting part of the statute, which follows this recital, provides anew that the judges' commissions shall be and remain in force during their good behavior, notwithstanding a demise of the crown; and the power of removal by the King, on the address of both houses, follows this enactment as a _proviso_. If, therefore, a not unusual rule of construction is applied, the power embraced in the _proviso_ should be so construed as to make its operation consistent with, and not repugnant to, the great purpose of the statute, which was to establish the tenure of good behavior. In this view the rightful exercise of the power may be confined to cases where the individual is no longer within that tenure, or, in other words, where the good behavior has ceased, or become impossible. Upon this construction the power of removal can only be rightfully exercised when a cause exists which touches the official conduct or capacity of the incumbent. In the Constitution of the State of Massachusetts, formed in 1780, the power of removal by the executive, on the address of both houses of the legislature, was adopted from the English statutes, and it was introduced as a _proviso_ after the tenure of good behavior had been emphatically declared for all judicial officers, just as it stands in the act of 1 Geo. III. An objection which has sometimes been urged against the construction above suggested is, that it is narrower than the terms of the provision, and that it would not include a case where a judge may have discharged all his official duties with propriety and ability, and may yet be personally obnoxious, as, for example, on account of gross immorality. But the answer to this objection is, that the question, whether a case of official good conduct accompanied by personal immorality, or the like defect of character, was intended to be within the power of removal, must be determined on a careful view of the whole provision. The meaning and scope of the qualification of "good behavior" must be first ascertained. If it means simply that the individual is to hold his commission so long as each official duty is discharged in the manner contemplated by law, then a mere personal immorality, which has not affected or influenced the discharge of official duty, is not inconsistent with the good behavior established as the tenure of the office. But if the good behavior means, not merely that the individual shall discharge his official duties in a competent manner, with an average amount of ability, and without corruption, but that he shall so order his life and conversation as not to expose himself to a cessation of the power to act intelligently and uprightly, then there may undoubtedly be a case of personal immorality that would touch the tenure of the office. Still it must be the tenure of the office that is touched, and it must be touched by misconduct or incapacity. The phrase "good behavior" is technical, and has always had a meaning attached to it which confines it to the discharge of official duty. It is, therefore, not what men think of the individual, or how they feel towards him, or how they regard him, but what he does or omits officially, that is to determine whether he continues to behave well in his office; and unless some conduct, or some bodily or mental condition, is adduced, that shows him to be incapable of fulfilling the duties of his station in the manner in which the law intends they shall be discharged, his tenure of good behavior is not lost. But the naked power of removal by the other two branches of the government exists in the English constitution, and in that of the State of Massachusetts, without any declaration of the purposes or occasions to which it is to be applied; and it is not easy to reconcile it with the avowed object of judicial independence obviously embraced by the terms of the commission prescribed in both of them. The two most important native writers on the English constitution, Sir William Blackstone and Mr. Hallam, regard the provision as a restraint on the former practice of the crown, of dismissing judges when they were not sufficiently subservient to the views of the government in political prosecutions. Mr. Hallam, after referring to the provisions of the two statutes, lays down the proposition, that "no judge can be dismissed from office, except in consequence of a conviction for some offence, or the address of both houses of Parliament, which is tantamount to an act of the legislature." (Constitutional History, III. 262.) He suggests further, that although the commissions of the judges cannot be vacated by the authority of the crown, yet that they are not wholly out of the reach of its influence. They are accessible to the hope of further promotion, to the zeal of political attachment, to the flattery of princes and ministers, and to the bias of their professional training. He therefore commends the wisdom of subjecting them in some degree to legislative control. (Ibid.) But it is not to be inferred from his remarks that that control can be rightfully exercised without the existence of a cause which affects their good behavior. On the contrary, he appears to consider that the purpose was to prevent a subserviency to the crown in their official conduct, by subjecting _that conduct_ to legislative scrutiny. To the honor of England, it is to be remembered that, since this power was recognized, there has never been an instance in which a judge has been removed for political or party purposes. Mr. Justice Story has taken substantially the same view of the subject. He says: "The object of the act of Parliament was to secure the judges from removal at the mere pleasure of the crown; but not to render them independent of the action of Parliament. By the theory of the British constitution, every act of Parliament is supreme and omnipotent. It may change the succession to the crown, and even the very fundamentals of the constitution. It would have been absurd, therefore, to have exempted the judges alone from the general jurisdiction of this supreme authority in the realm. The clause was not introduced into the act for the purpose of conferring the power on Parliament, for it could not be taken away or restricted, but simply to recognize it as a qualification of the tenure of office; so that the judges should have no right to complain of any breach of an implied contract with them, and the crown should not be deprived of the means to remove an unfit judge whenever Parliament should, in their discretion, signify their assent." (Commentaries on the Constitution, Vol. II. § 1623.) By describing it as a "qualification of the tenure of office," the learned commentator probably did not mean that the power was intended to be recognized as a power to remove judges against whom no official misconduct or incapacity could be charged; for the context shows that he was speaking of the removal of "unfit" judges as a power that it was proper to recognize and regulate. If he intended to lay it down as a complete and actual qualification of the tenure of good behavior, it must have been upon the theory to which he refers, upon which an act of Parliament can do anything, either with or without reason. Upon this theory all the commissions of all the judges in the realm may be vacated without inquiry into their fitness or unfitness. But if the true view of the subject is, that the _King's commission_, which runs _quamdiu se bene gesserit_, cannot be determined when the crown alone decides that the good behavior has ceased, or become impracticable, but may be determined when the whole legislative power has so decided, then in one sense it _is_ a qualification of the commission; because the latter emanates from the crown, but after it has issued, it is to be superintended by Parliament _and_ the crown. When we turn to our American constitutions, all embarrassment arising from the English theory of the omnipotence of the legislative department vanishes. In our systems of government the people alone possess supreme power. The legislature is but the organ of their will for certain specific and limited purposes, which are carefully defined in a written constitution; and no power that is not plainly confided by the constitution to the legislative and executive departments of the government can be exercised by them. Under every American constitution, therefore, which has conferred upon the executive power to remove a judge upon the address of the two houses of the legislature, the question whether that power extends to any cases but those of official misconduct or incapacity must be determined by a careful consideration of the position which that constitution assigns to the judiciary. If, as is the case, for example, under the Constitution of the State of Massachusetts, there is a clear intention manifest to make the judiciary independent of the other departments, and this intention appears by other provisions, and the enunciation of other principles besides that which in terms establishes the tenure of good behavior, then the power of removal upon address ought to be construed and exercised consistently with the tenure of good behavior, and not in direct repugnance to it. It is plain that, if the power is construed as a naked and unrestrained power, established as a direct qualification of the tenure of office, it may be used for party purposes, and may be exercised for any cause for which a dominant party may see fit to employ it. The danger of the abuse of this power, arising from the absence of any express restriction upon it, and of any statement of its purpose, in the Constitution of Massachusetts, has led to an unsuccessful effort in that State to make its exercise more difficult than it is under the actual provision. In the Convention held in the year 1820, in which the Constitution was subjected to revision, Mr. Webster, Mr. Justice Story, and others of the eminent jurists of Massachusetts, endeavored to procure an amendment requiring the address to be adopted by a vote of two thirds in both branches, instead of allowing it to be carried, as the Constitution has always stood, and as the rule is in England, by a bare majority. The effort failed; but the result of the whole discussion to which it gave rise shows the general understanding of the people of the State with regard to the rightful extent of this power. The Convention was a very remarkable assembly of the intellect and worth of the State, and both the political parties of the time were fully represented in it, by their most distinguished members. All were agreed that the power was capable of abuse, and that to apply it to any other than cases of official incapacity or unfitness would be an abuse. But those who opposed the adoption of a two-thirds rule were unwilling to anticipate such an abuse of the power, and their arguments prevailed. The framers of the Constitution of the United States intrusted no such power over the judiciary to the other branches of the government. They regarded the possibility of its being used for improper purposes as a sufficient reason why it should not exist. They thought it, moreover, a contradiction in terms to say that the judges should hold their offices during good behavior, and yet be removable without a trial. But the radical objection was one that does not seem to have been sufficiently attended to in the early formation of some of the State constitutions, but which the peculiar system established by the Constitution of the United States made especially prominent. That Constitution was designed to be in some respects an abridgment of the previous powers of the States. Like the State constitutions, also, it embraced a careful distribution of the powers of government between the different departments, and a careful separation of the functions of one department from those of another. Questions must, therefore, necessarily arise in the administration of the government, whether one of these departments had overstepped the limits assigned to it as against the others, and whether the action of the general or the State governments in particular instances is within their appropriate spheres. These, now familiar to us as constitutional questions, were to be subjected to the arbitrament of the national judiciary; and it was almost universally felt that this delicate and important power must be confided to judges whose tenure of office could be touched only by the solemn process of accusation and impeachment. The same necessity exists under a State constitution, but perhaps not in the same degree; for while the judiciary of a State is often called upon to decide finally upon the conformity of acts of legislation with the State constitution,--and ought therefore clearly to be beyond the reach of legislative influence,--yet no State judiciary is the final arbiter between the rights and powers of the national government and the rights and powers of the States. This function belongs to the supreme judiciary of the United States. It was foreseen that it would not infrequently involve the decision of questions in which whole classes of States might have the deepest interest, which would connect themselves with party discussions, and on which the representatives of the States in the national legislature would be likely to share in the feelings, and even in the passions, of their constituents. There could be no security for a judiciary called upon to decide such questions, if they were to be subject to a power of removal by the other two branches of the government. Their commissions might make them theoretically independent, but practically they could be removed at the pleasure of those whom they might have offended. In truth, there is no State in this Union where such a power of removal is vested without qualification in the legislative and executive departments, in which the judges can be said to hold their commissions during good behavior, unless that power is construed to embrace only those cases of palpable incapacity in which an impeachment would be unnecessary or impracticable. As a naked and unqualified power, it is repugnant to the tenure of good behavior. It was so regarded in the Convention which framed the Constitution of the United States, where a proposition to introduce it received the vote of the single State of Connecticut only. (Madison, Elliot, V. 481, 482.) FOOTNOTES: [31] Adopted by the votes of eight States against two,--Connecticut and Maryland voting in the negative. [32] Pennsylvania, Maryland, _ay_, 2; Massachusetts, Connecticut, New York, Delaware, Virginia, North Carolina, South Carolina, Georgia, _no_, 8. [33] Pennsylvania and Maryland, _no_. [34] New York, Delaware, and Maryland, _no_. [35] Nine States voted against it, and one (Delaware) was divided. [36] The Federalist, No. 21. [37] Madison, Elliot, V. p. 140. [38] Eight States in the affirmative, two in the negative, and one divided. [39] This was afterwards applied to the judges of the inferior courts also. [40] Act 12 & 13 William III. ch. 2. [41] Act 1 Geo. III. ch. 23. [42] This was afterwards stricken out. CHAPTER IV. ADMISSION OF NEW STATES.--GUARANTY OF REPUBLICAN GOVERNMENT.--POWER OF AMENDMENT.--OATH TO SUPPORT THE NEW SYSTEM.--RATIFICATION. Having settled a general plan for the organization of the three great departments of government, the committee next proceeded to provide for certain other objects of primary importance, the necessity for which had been demonstrated by the past history of the Confederacy. The first of these was the admission of new States into the Union. It had long been apparent, that the time would sooner or later arrive when the limits of the United States must be extended, and the number of the States increased. Circumstances had made it impossible that the benefits and privileges of the Union should be confined to the original thirteen communities by whom it had been established. Population had begun to press westward from the Atlantic States with the energy and enterprise that have marked the Anglo-American character since the first occupation of the country. Wherever the hardy pioneers of civilization penetrated into the wilderness of the Northwest, they settled upon lands embraced by those shadowy boundaries which carried the territorial claims of some of the older States into the region beyond the Ohio. Circumstances, already detailed in a former part of this work, had compelled a surrender of these territorial claims to the United States; and in the efforts made by Congress, both before and after the cessions had been completed, to provide for the establishment of new States, and for their admission into the Union, we have already traced one of the great defects of the Confederation, which rendered it incapable of meeting the exigencies created by this inevitable expansion of the country.[43] In the year 1784, when Mr. Jefferson brought into Congress a measure for the organization and admission of new States, to be formed upon the territories that had been or might thereafter be ceded to the United States, he seems to have considered that the Articles of Confederation authorized the admission of new States formed out of territory that had belonged to a State already in the Union, by a vote of nine States in Congress. But a majority of the States in Congress evidently regarded the power of admission as doubtful; and although they passed the resolves for the admission of new States,--principally because it was extremely important to invite cessions of Western territory,--they left the provision as to the mode of admission so indefinite, that the whole question of power would have to be opened and decided on the first application that might be made by a State to be admitted into the Union.[44] When the Ordinance of 1787 was formed, it made provision for the establishment of new States in the territory, and declared that, when any of them should have sixty thousand free inhabitants, it should be admitted into Congress on an equal footing with the original States. But the mode of admission was not prescribed. The power to admit was assumed, and no rule of voting on the question of admission was referred to. The probability is, that Congress anticipated at this time that a definite constitutional power would be provided by the Convention that had been summoned to revise the federal system. This power was embraced in the plan adopted in the committee of the whole of that body, by a resolve which declared "that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole." In what mode this provision was made will be seen hereafter, when we come to examine the framework of the Constitution. Another of the new powers now proposed to be given to the Union was that of protecting and upholding the governments of the States. I have already had occasion to explain the relations of the Confederation to its members in a time of internal disturbance and peril; and have given to the incapacity of that government to afford any aid in such emergencies great prominence among the causes which led to the revision of the federal system.[45] Under that system the States had been so completely sovereign, and so independent of each other in all that related to their internal concerns, that the government of any one of them might have been subverted without the possibility of an authorized and regulated interference by the rest. The constitutional and republican liberty that had been established in these States after the Revolution had freed them from the dominion of England, was at that period a new and untried experiment; and in order that we of this generation may be able to appreciate the importance of the guaranty proposed to be introduced into the Constitution of the United States, it is necessary for us to look somewhat farther than the particular circumstances of the commotions in New England that marked the year 1787 as an era of especial danger to these republican governments. It is, in fact, necessary for us to remember the contemporaneous history of Europe, and to observe how the events that were taking place in the Old World necessarily acted upon our condition, prospects, and welfare. The French Revolution, consummated in 1791 by the execution of the King, was already begun when the Constitution of the United States went into operation. No one who has examined the history of the first years of our present national government, can fail to have been impressed with the dangers which the administration of our domestic affairs incurred of becoming complicated with the politics of Europe. As in all other countries, so in America, the events and progress of the Revolution in France found sympathy or reprobation, according to the natural tendencies, the previous associations, and the political sentiments of individuals. But in the United States there was a peculiar and predisposing cause for the liveliest interest in the success of the principles that were believed, by large masses of the people, to be involved in the French Revolution. Our own struggles for liberty, our bold and successful assertion of the rights of man, and our achievement of the means and opportunity of self-government, had evidently and strikingly acted upon France. The people of the United States were fully sensible of this; and transferring to the French nation the debt of gratitude for the aid which had flowed to us in the first instance from their government without any special influence of their own, large numbers of our people became warmly enlisted in the cause of that Revolution, of which the early promise seemed so encouraging to the best hopes of mankind, and the full development of which first ruined the interests of liberty, in the wanton excesses of anarchy and national ambition, and finally crushed them beneath the usurpations and necessities of military despotism. On the other hand, the more cautious--who, if they had not from the first looked with distrust upon the whole movement of the Revolutionary party in France, very soon believed that it could result in no real benefit to France or to the world--tended strongly and naturally to the side of those governments with which the leaders of the Revolution had to contend. In consequence of this state of feeling among different portions of the people of the United States, with reference to French affairs, and of the conduct of France and England towards ourselves, the administration of Washington had great difficulty both in preserving the neutrality of the country, and in excluding foreign influence and interference in our domestic affairs. Had this state of things, which followed immediately after the inauguration of our new government, found us still under the Confederation, there can be no doubt that our condition would have afforded to the Revolutionary party in France the means not only of disseminating their principles among us, but also of overturning any of the institutions of the weaker States which might have stood in the way of their acquiring an influence in America. Yet what form or principle of government is there in the world, that more imperatively requires all foreign or external influence to be repelled, than our own republican system, of which it is a cardinal doctrine that every institution and every law must express the uncontrolled and spontaneous will of a majority of the people who constitute the political society? Other governments may be upheld by the interference of their neighbors; other systems may require, and perhaps rightfully admit, foreign influence. Ours demand an absolute immunity from foreign control, and can exist only when the authority of the people is made absolutely free. That their authority should be made and kept free to act upon the principles that enable it to operate with certainty and safety, it requires the guaranty of a system that rests upon the same principles, is committed to the same destiny, is itself constituted by American power, and is created for the express purpose of preserving the republican form, the theory and the right of self-government. Such was the purpose of the framers of the Constitution, when, in this early stage of their deliberations, they determined that a republican constitution should be guaranteed by the United States to each of the States.[46] The object of this provision was, to secure to the people of each State the power of governing their own community, through the action of a majority, according to the fundamental rules which they might prescribe for ascertaining the public will. The insurrection in Massachusetts, then just suppressed, had made the dangers that surround this theory of government painfully apparent. It had demonstrated the possibility that a minority might become in reality the ruling power. Fortunately, no foreign interference had then intervened; but a very few years only elapsed, before a crisis occurred, in which the institutions of the States would have been quite unable to withstand the shocks proceeding from the French Revolution, if the government of the Union had not been armed with the power of protecting and upholding them. The committee also added another new feature to their plan of government, which was a capacity of being amended. The Articles of Confederation admitted of changes only when they had been agreed upon in Congress, and had afterwards been confirmed by the legislatures of all the States. Indeed, it resulted necessarily from the nature of that government, that it could only be altered by the consent of all the parties to it. It was now proposed and declared, that provision ought to be made for the amendment of the Articles of Union, whenever it should seem necessary. This declaration looked to the establishment of some new method of originating improvements in the system of government, and a new rule for their adoption. It was also determined that the members of the State governments should be bound by oath to support the Articles of Union. The purpose of this provision was to secure the supremacy of the national government, in cases of collision between its authority and the authority of the States. It was a new feature in the national system, and received at first the support of only a bare majority of the States.[47] Finally, it was provided that the new system, after its approbation by Congress, should be submitted to representative assemblies recommended by the State legislatures, to be expressly chosen by the people to consider and decide thereon. The question has often been discussed, whether this mode of ratification marks in any way the character of the government established by the Constitution. At present it is only necessary to observe, that the design of the committee was to substitute the authority of the people of the States in the place of that of the State legislatures, for a threefold purpose. First, it was deemed desirable to resort to the supreme authority of the people, in order to give the new system a higher sanction than could be given to it by the State governments. Secondly, it was thought expedient to get rid of the doctrine often asserted under the Confederation, that the Union was a mere compact or treaty between independent States, and that therefore a breach of its articles by any one State absolved the rest from its obligations. In the third place, it was intended, by this mode of ratification, to enable the people of a less number of the States than the whole to form a new Union, if all should not be willing to adopt the new system.[48] The votes of the States in committee, upon this new mode of ratification, show that on one side were ranged the States that were aiming to change the principle of the government, and on the other the States that sought to preserve the principle of the Confederation.[49] These, together with a provision that the authority of the old Congress should be continued to a given day after the changes should have been adopted, and that their engagements should be completed by the new government, were the great features of the system prepared by the committee of the whole, and reported to the Convention, on the thirteenth of June.[50] FOOTNOTES: [43] _Ante_, Vol. I. Book III. Chap. V. [44] Mr. Jefferson has very lucidly stated the position of the question in some observations furnished by him, when in Paris, to one of the editors of the _Encyclopédie Méthodique_, in 1786 or 1787, which I here insert entire. "The eleventh Article of Confederation admits Canada to accede to the Confederation at its own will, but adds, 'no other Colony shall be admitted to the same unless such admission be agreed to by nine States.' When the plan of April, 1784, for establishing new States, was on the carpet, the committee who framed the report of that plan had inserted this clause: 'Provided nine States agree to such admission, according to the reservation of the eleventh of the Articles of Confederation.' It was objected,--1. That the words of the Confederation, 'no other Colony,' could refer only to the residuary possessions of Great Britain, as the two Floridas, Nova Scotia, &c., not being already parts of the Union; that the law for 'admitting' a new member into the Union could not be applied to a territory which was already in the Union, as making part of a State which was a member of it. 2. That it would be improper to allow 'nine' States to receive a new member, because the same reasons which rendered that number proper now would render a greater one proper when the number composing the Union should be increased. They therefore struck out this paragraph, and inserted a proviso, that 'the consent of so many States in Congress shall be first obtained as may at the time be competent'; thus leaving the question whether the eleventh Article applies to the admission of new States to be decided when that admission shall be asked. See the Journal of Congress of April 20, 1784. Another doubt was started in this debate, viz. whether the agreement of the nine States required by the Confederation was to be made by their legislatures, or by their delegates in Congress? The expression adopted, viz. 'so many States in Congress is first obtained,' shows what was their sense of this matter. If it be agreed that the eleventh Article of the Confederation is not to be applied to the admission of these new States, then it is contended that their admission comes within the thirteenth Article, which forbids 'any alteration unless agreed to in a Congress of the United States, and afterwards confirmed by the legislatures of every State.' The independence of the new States of Kentucky and Franklin will soon bring on the ultimate decision of all these questions." (Jefferson's Works, IX. 251.) That the admission of a new State into the Union could have been regarded as an alteration of the Articles of Confederation, within the meaning and intention of the thirteenth Article, seems scarcely probable. Such an admission would only have increased the number of the parties to the Union, but it would of itself have made no change in the Articles; and it was against alterations _in the Articles_ that the provision of the thirteenth was directed. The objections which Mr. Jefferson informs us were raised in Congress to a deduction of the power from the eleventh Article, appear to be decisive. In truth, when the Articles of Confederation were framed, the subject of the admission of new States, so far as it had been considered at all, was connected with the difficult and delicate controversy respecting the western boundaries of some of the old States, and the equitable claim of the Union to become the proprietor of the unoccupied lands beyond those boundaries. An attempt was made to obtain for Congress, in the Articles of Confederation, power to ascertain and fix the western boundaries of those States, and to lay out the lands beyond them into new States. But it failed (_ante_, Vol. I. 291), and Congress could thereafter be said to possess no power to admit new States, except what depended on a doubtful construction of the Articles of Confederation. Still, both when they invited the cessions of their territorial claims by the States of Virginia, New York, &c., and after those cessions had been made, Congress acted as if they had constitutional authority to form new States, and to admit them into the Union. (_Ante_, Vol. I. 292-308.) When the Ordinance of 1787, for the regulation and government of the Northwestern Territory, was adopted, the power to admit new States was again assumed. The Convention for forming the Constitution was, however, then sitting, and it may be that the framers of the Ordinance introduced into that instrument the stipulation that the new States should be admitted on an equal footing with the old ones, in the confidence that the constitutional power would be supplied by the Convention. At any rate, the provisions of the Ordinance, as well as those of the previous resolves of Congress on the same subject of the Northwestern Territory, and the position of Kentucky, Vermont, Maine, and Tennessee (then called Franklin), imposed upon the Convention an imperative necessity for some action that would open the door of the Union to new members. [45] _Ante_, Vol. I. Book III. Chap. III. pp. 260-275. [46] As the resolution was originally passed, it declared that "a republican constitution, and its existing laws, ought to be guaranteed to each State by the United States." On account of the ambiguity of the expression "existing laws," and the controversies to which it might give rise, the provision was subsequently changed to a guaranty of "a republican form of government," and of protection against "invasion" and "domestic violence," as it now stands in Art. IV. Sect. 4 of the Constitution. [47] Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia voted for it (6); Connecticut, New Jersey, New York, Delaware, and Maryland voted against it (5). [48] See Madison, Elliot, V. 157, 158, 183. [49] Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, _ay_, 6; Connecticut, New York, New Jersey, _no_, 3; Delaware, Maryland, divided. See further on the subject of "Ratification," _post_, Index. [50] The report was in the following words:-- "1. _Resolved_, That it is the opinion of this committee that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary. "2. _Resolved_, That the national legislature ought to consist of two branches. "3. _Resolved_, That the members of the first branch of the national legislature ought to be elected by the people of the several States for the term of three years; to receive fixed stipends by which they may be compensated for the devotion of their time to the public service, to be paid out of the national treasury; to be ineligible to any office established by a particular State, or under the authority of the United States, (except those peculiarly belonging to the functions of the first branch,) during the term of service, and under the national government, for the space of one year after its expiration. "4. _Resolved_, That the members of the second branch of the national legislature ought to be chosen by the individual legislatures; to be of the age of thirty years, at least; to hold their offices for a term sufficient to insure their independence, namely, seven years; to receive fixed stipends, by which they may be compensated for the devotion of their time to the public service, to be paid out of the national treasury; to be ineligible to any office established by a particular State, or under the authority of the United States, (except those peculiarly belonging to the functions of the second branch,) during the term of service, and under the national government, for the space of one year after its expiration. "5. _Resolved_, That each branch ought to possess the right of originating acts. "6. _Resolved_, That the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening, in the opinion of the national legislature, the Articles of Union, or any treaties subsisting under the authority of the Union. "7. _Resolved_, That the right of suffrage in the first branch of the national legislature ought not to be according to the rule established in the Articles of Confederation, but according to some equitable ratio of representation; namely, in proportion to the whole number of white and other free citizens and inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes in each State. "8. _Resolved_, That the right of suffrage in the second branch of the national legislature ought to be according to the rule established for the first. "9. _Resolved_, That a national executive be instituted, to consist of a single person, to be chosen by the national legislature, for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for, to be ineligible a second time, and to be removable on impeachment and conviction of malpractice or neglect of duty; to receive a fixed stipend, by which he may be compensated for the devotion of his time to the public service, to be paid out of the national treasury. "10. _Resolved_, That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed unless by two thirds of each branch of the national legislature. "11. _Resolved_, That a national judiciary be established, to consist of one supreme tribunal, the judges of which shall be appointed by the second branch of the national legislature, to hold their offices during good behavior, and to receive punctually, at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. "12. _Resolved_, That the national legislature be empowered to appoint inferior tribunals. "13. _Resolved_, That the jurisdiction of the national judiciary shall extend to all cases which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony. "14. _Resolved_, That provision ought to be made for the admission of States lawfully arising without the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole. "15. _Resolved_, That provision ought to be made for the continuance of Congress, and their authorities and privileges, until a given day after the reform of the Articles of Union shall be adopted, and for the completion of all their engagements. "16. _Resolved_, That a republican constitution, and its existing laws, ought to be guaranteed to each State by the United States. "17. _Resolved_, That provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary. "18. _Resolved_, That the legislative, executive, and judiciary powers within the several States ought to be bound by oath to support the Articles of Union. "19. _Resolved_, That the amendments which shall be offered to the Confederation by the Convention ought, at a proper time or times after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon." CHAPTER V. ISSUE BETWEEN THE VIRGINIA AND THE NEW JERSEY PLANS.--HAMILTON'S PROPOSITIONS.--MADISON'S VIEW OF THE NEW JERSEY PLAN. The nature of the plan of government thus proposed--called generally in the proceedings of the Convention the Virginia plan--may be perceived from the descriptions that have now been given of the design and scope of its principal features, and of the circumstances out of which they arose. It purported to be a supreme and a national government; and we are now to inquire in what sense and to what extent it was so. Its powers, as we have seen, were to be distributed among the three departments of a legislative, an executive, and a judiciary. Its legislative body was to consist of two branches, one of which was to be chosen directly by the people of the States, the other by the State legislatures; but in both, the people of the States were to be represented in proportion to their numbers. Its legislative powers were to embrace certain objects, to which the legislative powers of the separate States might be incompetent, or where their exercise might be injurious to the national interests;[51] and it was moreover to have a certain restraining authority over the legislation of the States. This plan necessarily supposed that the residue of the sovereignty and legislative power of the States would remain in them after these objects had been provided for; and it therefore contemplated a system of government, in which the individual citizen might be acted upon by two separate and distinct legislative authorities. But by providing that the legislative power of the national government should be derived from the people inhabiting the several States, and by creating an executive and a judiciary with an authority commensurate with that of the legislature, it sought to make, and did theoretically make, the national government, in its proper sphere, supreme over the governments of the States. With respect to the element of stability, as depending on the length of the tenure of office, this system was far in advance of any of the republican governments then existing in America; for it contemplated that the members of one branch of the legislature should be elected for three, and those of the other branch, and the executive, for seven years. If we compare it with the Confederation, which it was designed to supersede, we find greatly enlarged powers, somewhat vaguely defined; the addition of distinct and regular departments, accurately traced; and a totally different basis for the authority and origin of the government itself. Such was the nature of the plan of government proposed by a majority of the States in Convention, for the consideration of all. It had to encounter, in the first place, the want of an express authority in the Convention to propose any change in the fundamental principle of the government. The long existence of the distinctions between the different States, the settled habit of the people of the States to act only in their separate capacities, their adherence to State interests, and their strong prejudices against all external power, had prevented them from contemplating a government founded on the principle of a national unity among the populations of their different communities. Hence, it is not surprising that men, who came to the Convention without express powers which they could consider as authority for the introduction of so novel a principle, should have been unwilling to agree to the formation of a government, that was to involve the surrender of a large portion of the sovereignty of each State. They felt a real apprehension lest their separate States should be lost in the comprehensive national power which seemed to be foreshadowed by the plans at which others were aiming. It seemed to them that the consequence, the power, and even the existence, of their separate political corporations, were about to be absorbed into the nation. In the second place, the mode of reconciling the co-ordinate existence of a national and a State sovereignty had undergone no public discussion. At the same time, almost all the evils, the inconveniences, and the dangers which the country had encountered since the peace of 1783, had sprung from the impossibility of uniting the action of the States upon measures of general concern. For this reason, there were men in the Convention who at one time doubted the utility of preserving the States, and who naturally considered that the only mode in which a durable and sufficient government could be established, was to fuse all the elements of political power into a single mass. To those who had this feeling, the Virginia plan was as little acceptable as it was, for the opposite reason, to others. It was, however, from the party opposed to any departure from the principle of the Confederation, that the first and the chief opposition came. The delegations of Connecticut, New York (with the exception of Hamilton), New Jersey, and Delaware, and one prominent member from Maryland,--Luther Martin,--preferred to add a few new powers to the existing system, rather than to substitute a national government. They were determined not to surrender the present equality of suffrage in Congress; and accordingly the members from the State of New Jersey brought forward a plan of a purely "federal" character.[52] This plan proposed that the Articles of Confederation should be so revised and enlarged as to give to Congress certain additional powers, including a power to levy duties for purposes of revenue and the regulation of commerce. But it left the constitution of Congress as it was under the Confederation, and left also the old mode of discharging the national expenses, by means of requisitions on the States, changing only the rule of proportion from the basis of real property to that of free population. It contemplated an executive, to be elected by Congress, and a supreme judiciary to be appointed by the executive; leaving to the judiciaries of the States original cognizance of all cases arising under the laws of the Union, and confining the national judiciary to an appellate jurisdiction, except in the cases of impeachments of national officers. It proposed to secure obedience to the acts and regulations of Congress, by making them the supreme law of the States, and by authorizing the executive to employ the power of the confederated States against any State or body of men who might oppose or prevent their being carried into execution. The mover of this system[53] founded his opposition to the plan framed by the committee of the whole chiefly upon the want of power in the Convention to propose a change in the principle of the existing government. He argued, with much acuteness, that there was either a present confederacy of the States, or there was not; that if there was, it was one founded on the equal sovereignties of the States, and that it could be changed only by the consent of all; that as some of the States would not consent to the change proposed, it was necessary to adhere to the system of representation by States; and that a system of representation of the people of the States was inconsistent with the preservation of the State sovereignties. The answer made to this objection was, that although the States, in appointing their delegates to the Convention, had given them no express authority to change the principle of the existing constitution, yet that the Convention had been assembled at a great crisis in the affairs of the Union, as an experiment, to remedy the evils under which the country had long suffered from the defects of its general government; that whatever was necessary to the safety of the republic must, under such circumstances, be considered as within the implied powers of the Convention, especially as it was proposed to do nothing more than to recommend the changes which might be found necessary; and that although all might not assent to the changes that would be proposed, the dissentient States could not require the others to remain under a system that had completely failed, when they could form a new confederacy upon wiser and better principles.[54] It was at this point that Hamilton interposed, with the suggestion of views and opinions that have sometimes subjected him, unjustly, to the charge of anti-republican and monarchical tendencies and designs. These views and opinions should be carefully considered by the reader, not only in justice to this great statesman, but because they had much influence, in an indirect manner, in producing the form and tone which the Constitution finally received. It should be recollected, in making this examination, that, so far as there was at this time a distinct issue before the Convention, it was presented by the New Jersey plan of a system that would leave the sovereignties of the States almost wholly undiminished, on the one hand, and on the other by the Virginia plan of a partial but as yet undefined surrender of powers to a general government. The construction of this proposed government, and the powers that it ought to possess, were the points which Hamilton now dealt with, in the first address which he made to the committee. He has left it on record, that the views which he announced on this occasion were rested upon the three following positions:--1. That the political principles of the people of this country would endure nothing but a republican government. 2. That, in the actual situation of the country, it was of itself right and proper that the republican theory should have a full and fair trial. 3. That to such a trial it was essential that the government should be so constructed as to give it all the energy and stability reconcilable with the principles of that republican theory.[55] The opinions advanced by Hamilton at the stage of the proceedings which we are now examining must always be considered with reference to the principles which guided him, in order that a right estimate may be formed of their influence on the final result of the issue then pending. After disposing of the objection that the Convention had no power to propose a plan of government differing from the principle of the Confederation, he proceeded to say, that there were three lines of conduct before them: first, to make a league offensive and defensive between the States, treaties of commerce, and an apportionment of the public debt; secondly, to amend the present Confederation by adding such powers as the public mind seemed ready to grant; thirdly, to form a new government, which should pervade the whole, with decisive powers and a complete sovereignty. The practicability of the last course, and the mode in which the object should be accomplished, were the important and the only real questions before them. But the solution of those questions involved an inquiry into the principles of civil obedience, which are the great and essential supports of all government. The first of these principles, he said, is an active and constant interest in the support of a government. This principle did not then exist in the States, in favor of the general government. They constantly pursued their own particular interests, which were adverse to those of the whole. The second principle is a conviction of the utility and necessity of a government. As the general government might be dissolved and yet the order of society would continue,--so that many of the purposes of government would still be attainable, to a considerable degree, within the States themselves,--a conviction of the utility or the necessity of a general government could not at that time be considered as an active principle among the people of the States. The third principle is an habitual sense of obligation; and here the whole force of the tie was on the side of State government. Its sovereignty was immediately before the eyes of the people; its protection they immediately enjoyed; by its hand, private justice was administered. In the existing state of things, the central government was known only by its unwelcome demands of money or service. The fourth principle on which government must rely is force; by which he meant both the coercion of laws and the coercion of arms. But as to the general government, the coercion of laws did not exist; and to employ the force of arms on the States would amount to a war between the parties to the confederacy. The fifth principle was influence; by which he did not mean corruption, but a dispensation of those regular honors and just emoluments which produce an attachment to government. Almost the whole weight of these was then on the side of the States, and must remain so in any mere confederacy, rendering it in its very nature feeble and precarious. The lessons afforded by experience led to the evident conclusion that all federal governments were weak and distracted. They were so, because the strong principles which he had enumerated operated on the side of the constituent members of the confederacy, and against the central authority. In order, therefore, to establish a general and national government, with any hope of its duration, they must avail themselves of these principles. They must interest the wants of men in its support; they must make it useful and necessary; and they must give it the means of coercion. For these purposes, it would be necessary to make it completely sovereign. The New Jersey plan certainly would not produce this effect. It merely granted the regulation of trade and a more effectual collection of the revenue, and some partial duties, which, at five or ten per cent, would perhaps only amount to a fund to discharge the debt of the corporation. But there were a variety of objects which must necessarily engage the attention of a national government. It would have to protect our rights against Canada on the north, against Spain on the south, and the western frontier against the savages. It would have to adopt necessary plans for the settlement of the frontiers, and to institute the mode in which settlements and good governments were to be made. According to the New Jersey plan, the expense of supporting and regulating these important matters could only be defrayed by requisitions. This mode had already proved, and would always be found, ineffectual. The national revenue must be drawn from commerce,--from imposts, taxes on specific articles, and even from exports, which, notwithstanding the common opinion, he held to be fit objects of moderate taxation. The radical objections to the New Jersey plan he held to be its equality of suffrage as between the States; its incapacity to raise forces or to levy taxes; and the organization of Congress, which it proposed to leave unchanged. On the other hand, the great extent of the country to be governed, and the difficulty of drawing a suitable representation from such distances, led him to regard the Virginia plan with doubt and hesitation. At the same time, he declared that the system must be a representative and republican government. But representation alone, without the element of a permanent tenure of office in some part of the system, would not, as he believed, answer the purpose. For, as society naturally falls into the political divisions of the few and the many, or the majority and the minority, some part of every good representative government must be so constituted as to furnish a check to the mere democratic element. The Virginia plan, which proposed that both branches of the national legislature should be chosen by the people of the States, and that the executive should be appointed by the legislature, presented a democratic Assembly to be checked by a democratic Senate, and both of them by a democratic chief magistrate. To give a Senate or an executive thus chosen an official term a few years longer than that of the members of the Assembly, would not be sufficient to remove them from the violence and turbulence of the popular passions. For these reasons, they must go as far, in order to attain stability and permanency, as republican principles would admit. He would therefore have the Senate and the executive hold their offices during good behavior. Such a system would be strictly republican, so long as these offices remained elective and the incumbents were subject to impeachment. The term _monarchy_ could not apply to such a system, for it marks neither the degree nor the duration of power. And in order to obviate the danger of tumults attending the election of an executive who should hold his office during good behavior, he proposed that the election should be made by a body of electors, to be chosen by the people, or by the legislatures of the States. The Assembly he proposed to have chosen by the people of the States for three years. The legislative _powers_ of the general government he desired to have extended to all subjects; at the same time, he did not contemplate the total abolition of the State governments, but considered them essential, both as subordinate agents of the general government, and as the administrators of private justice among their own citizens.[56] His conclusions were, first, that it was impossible to secure the Union by any modification of a federal government; secondly, that a league, offensive and defensive, was full of certain evils and greater dangers; thirdly, that to establish a general government would be very difficult, if not impracticable, and liable to various objections. What then was to be done? He answered, that they must balance the inconveniences and the dangers, and choose that system which seemed to have the fewest objections. The plan which Hamilton then read to the Convention, the principal features of which have thus been stated, was designed to explain his views, but was not intended to be offered as a substitute for either of the two others then under consideration. The issue accordingly remained unchanged; and that issue lay between the Virginia and the New Jersey plans, or between a system of equal representation by States, and a system of proportionate representation of the people of the States. Besides this radical difference, the Virginia plan contemplated two houses, while the New Jersey plan proposed to retain the existing system of a single body. But in order that a sound judgment may be formed of the correctness of Hamilton's opinions, and of the useful influence which they exerted, it must be remembered that there was an inconsistency in the Virginia plan, which he was then aiming to exhibit. That plan was a purely national system; it drew both branches of the national legislature from the people of the States, in proportion to their numbers, and merely interposed the legislatures of the States as the electors of so many senators as the State might be entitled to have according to the ratio of representation. Its inconsistency lay in the fact, that, while it would have created a government in which the proportionate principle of representation would have obtained in both houses, making a purely national government, in which the States, as equal political corporations, could have exercised no direct control over its legislation, it left the separate political sovereignties of the States almost wholly unimpaired, taking from them jurisdiction over such subjects only as seemed to require national legislation. The operation of such a system must necessarily have involved perpetual conflicts between national and State power; for the States, possessed of a large part of their original sovereignties, and yet unable to exert an equal control in either branch of Congress, would have been constantly tempted and obliged to exert the indirect power of their separate legislation against the direct and democratic force of a majority of the people of the United States. To such a system, the objection urged by Hamilton, that it presented a democratic House checked by a democratic Senate, was strikingly applicable. This objection, it is true, was not presented by him as a reason for admitting the States to a direct and equal representation in the government; he employed it to enforce the expediency of giving to the Senate a different basis from that of the House, and one farther removed from popular influences. But when, at a subsequent period, the first great compromise of the Constitution--that between a purely national and a purely federal system--took place by the admission of the States to an equal representation in the Senate, the force of Hamilton's reasoning was felt, and the necessity for a check as between the two houses, founded on a difference of origin, which he had so strenuously maintained, both facilitated and hastened the concession to the demands of the smaller States. At present, Hamilton's object, in the discussions which we are now considering, was to show that, if the government was to be purely national,--as was the theory of the Virginia plan, and as he undoubtedly preferred,--it must be consistent with that theory and with the situation in which its adoption would leave the country. It must introduce through the Senate a real check upon the democratic power that would act through the House, by a different mode of election and a permanent tenure of office; and in order that the States might not be in a situation to resist the measures of a government designed to be national and supreme, that government must possess complete and universal legislative power. Surely it can be no impeachment of the wisdom or the statesmanship of this great man, that, at a time when a large majority of the Convention were seeking to establish a purely national system, founded on a proportionate representation of the people of the States, he should have pointed out the inconsistencies of such a plan, and should have endeavored to bring it into a nearer conformity with the theory which so many of the members and so many of the States had determined to adopt. It seems rather to be a proof of the deep sagacity which had always marked his opinions and his conduct, that he should have foreseen the inevitable collisions between the powers of a national government thus constituted and the powers of the States. The whole experience of the past had taught him to anticipate such conflicts, and the theory of a purely national government, when applied by the arrangement now proposed, rendered it certain that these conflicts must continue and increase. That theory could only be put in practice by transferring the whole legislative powers of the people of the States to the national government. This he would have preferred; and in this, looking from the point of view at which he then stood, and considering the actual position of the subject, he was undoubtedly right.[57] For it is not to be forgotten, that after the votes which had been taken, and after the position assumed by the States opposed to anything but a federal plan, the choice seemed to lie between a purely national and a purely federal system; that the indications then were, that the Virginia plan would be adopted; and that we owe the present compound character of the Constitution, as a government partly national and partly federal, not to the mere theories proposed on either side, but to the fortunate results of a wise compromise, made necessary by the collision between the opposite purposes and desires of different classes of the States. At the time when Hamilton laid his views before the Convention, there were two parties in that body, which were coming gradually to a struggle, not yet openly avowed, between the larger and the smaller States, on the fundamental principle of the government. The principal question at stake was whether there should be any national popular representation at all. While the Virginia plan carried a popular representation into both branches of the legislature, the New Jersey plan excluded it, and confined the system to a representation of States, in a single body. The larger and more populous States adhered to the former of these two systems, because it involved the only principle upon which they believed they could form a new Union, or enter into new relations with the smaller members of the confederacy; while, on the other hand, the smaller members felt that self-preservation was for them involved in adhering to the old principle of the Confederation. Notwithstanding the defects and imperfections of the Virginia plan, it was deemed necessary by the majority of the Convention to insist upon it, until the principle of popular representation should be conceded by all, as proper to exist in some part of the government; for an admission that it was theoretically incorrect in its application to either branch of the proposed legislature would have applied equally to the other branch; and the admission that would have been involved in the acceptance of Hamilton's propositions, namely, that in a purely national system there must be a Senate permanently in office, and that the legislative powers of the States must be mainly surrendered, would have tended only to confirm the opposition and to swell the numbers of the minority. The contest went on, therefore, as it had begun, between the opposite principles of popular and State representation, until it resulted in an absolute difference, requiring mutual concessions, or an abandonment of the effort to form a Constitution. On the day following that on which Hamilton had addressed the committee, Mr. Madison entered into an elaborate examination of the plan proposed by the minority. The previous Congressional experience of this distinguished and sagacious man had well qualified him to detect the imperfections of a system calculated to perpetuate the evils under which the country had long suffered. His object now was to show that a Union founded on the principle of the Confederation, and containing no diminution of the existing powers of the States, could not accomplish even the principal objects of a general government. It would not, he observed, in the first place, prevent the States from violating, as they had all along violated, the obligations of treaties with foreign powers; for it left them as uncontrolled as they had always been. It would not restrain the States from encroaching on the federal authority, or prevent breaches of the federal articles. It would not secure that equality of privileges between the citizens of different States, and that impartial administration of justice, the want of which had threatened both the harmony and the peace of the Union. It would not secure the republican theory, which vested the right and the power of government in the majority; as the case of Massachusetts then demonstrated. It would not secure the Union against the influence of foreign powers over its members. Whatever might have been the case with ours, all former confederacies had exhibited the effects of intrigues practised upon them by other nations; and as the New Jersey plan gave to the general councils no negative on the will of the particular States, it left us exposed to the same pernicious machinations. He begged the smaller States, which had brought forward this plan, to consider in what position its adoption would leave them. They would be subject to the whole burden of maintaining their delegates in Congress. They and they alone would feel the power of coercion on which the efficacy of this plan depended, for the larger States would be too powerful for its exercise. On the other hand, if the obstinate adherence of the smaller States to an inadmissible system should prevent the adoption of any, the Union must be dissolved, and the States must remain individually independent and sovereign, or two or more new confederacies must be formed. In the first event, would the small States be more secure against the ambition and power of their larger neighbors, than they would be under a general government pervading with equal energy every part of the empire, and having an equal interest in protecting every part against every other part? In the second event, could the smaller States expect that their larger neighbors would unite with them on the principle of the present confederacy, or that they would exact less severe concessions than were proposed in the Virginia scheme? The great difficulty, he continued, lay in the affair of representation; and if that could be adjusted, all others would be surmountable. It was admitted by both of the gentlemen from New Jersey,[58] that it would not be just to allow Virginia, which was sixteen times as large as Delaware, an equal vote only. Their language was, that it would not be safe for Delaware to allow Virginia sixteen times as many votes. Their expedient was, that all the States should be thrown into one mass, and a new partition be made into thirteen equal parts. Would such a scheme be practicable? The dissimilarities in the rules of property, as well as in the manners, habits, and prejudices of the different States, amounted to a prohibition of the attempt. It had been impossible for the power of one of the most absolute princes in Europe,[59] directed by the wisdom of one of the most enlightened and patriotic ministers that any age had produced,[60] to equalize in some points only the different usages and regulations of the different provinces. But, admitting a general amalgamation and repartition of the States to be practicable, and the danger apprehended by the smaller States from a proportional representation to be real, would not their special and voluntary coalition with their neighbors be less inconvenient to the whole community and equally effectual for their own safety?[61] If New Jersey or Delaware conceived that an advantage would accrue to them from an equalization of the States, in which case they would necessarily form a junction with their neighbors, why might not this end be attained by leaving them at liberty to form such a junction whenever they pleased? And why should they wish to obtrude a like arrangement on all the States, when it was, to say the least, extremely difficult, and would be obnoxious to many of the States,--and when neither the inconvenience nor the benefit of the expedient to themselves would be lessened by confining it to themselves? The prospect of many new States to the westward was another consideration of importance. If they should come into the Union at all, they would come when they contained but few inhabitants. If they should be entitled to vote according to their proportion of inhabitants, all would be right and safe. Let them have an equal vote, and a more objectionable minority than ever might give law to the whole.[62] At the close of Mr. Madison's remarks, the committee decided, by a vote of seven States against three, one State being divided, to report the Virginia plan to the Convention. The delegation of New York (with the exception of Hamilton), and those of New Jersey and Delaware, constituted the negative votes. The vote of Maryland was divided by Luther Martin, who had constantly acted with the minority. The vote of Connecticut was given for the report, but she was not long to remain on that side of the question.[63] NOTE ON THE OPINIONS OF HAMILTON. The idea has been more or less entertained, from the time of the Convention to the present day, that Hamilton desired the establishment of a _monarchical_ government. This impression has arisen partly from the theoretical opinions on government which he undoubtedly held, and which he expressed with entire freedom in the course of the debate, of which an account has been given in the previous chapter; and partly from the nature of some of his propositions, especially that for an executive during good behavior, which has been sometimes assumed to have been the same thing as an executive for life. I believe that the imputation of a purpose on his part to bring about the establishment of any system not essentially republican in its spirit and forms, is unfounded and unjust, and that it can be shown to be so. Mr. Luther Martin, in his celebrated letter or report to the legislature of Maryland on the doings of the Federal Convention, referred to a distinct monarchical party in that body, "whose object and wish," he said, "it was to abolish and annihilate all State governments, and to bring forward one general government over this whole continent, of a monarchical nature, under certain restrictions and limitations. Those who openly avowed this sentiment," he said, "were, it is true, but few; yet it is equally true, that there was a considerable number who did not openly avow it, who were, by myself and many others of the Convention, considered as being in reality favorers of that sentiment and acting upon those principles, covertly endeavoring to carry into effect what they well knew openly and avowedly could not be accomplished." He then goes on to say, that there was a second party, who were "not for the abolition of the State governments, nor for the introduction of a monarchical government under any form; but they wished to establish such a system as could give their own States undue power and influence, in the government, over the other States." "A third party," he adds, "was what I considered _truly federal and republican_"; that is to say, it consisted of the delegations from Connecticut, New York, New Jersey, Delaware, and in part from Maryland, and of some members from other States, who were in favor of a federal equality and the old principle of the Confederation. Upon this rule of classification, the test of republicanism was to be found in the views entertained by members upon the question whether the State governments ought to be abolished. Mr. Martin, indeed, went further, and considered those only as _truly_ republican, who were in favor of a purely federal system, and opposed to any plan of popular representation. Now it is quite clear, that the abolition of the State governments, so far as that subject was considered at all, and in the sense in which it was at any time mentioned, did not necessarily lead to _monarchy_ as a conclusion. The reduction of the State governments to local corporations and to the position of subordinate agents of the central government, was considered by some as a necessary consequence of a national representative government. This arose from the circumstance that a union of federal and national representation had nowhere been witnessed, and had not therefore been considered. I have already suggested, in the text, that, if the framers of the Constitution had gone on to the adoption of a pure system of popular and proportional representation in all the branches of the government, they must inevitably have bestowed upon that government full legislative power over all subjects; otherwise, they would have left the States, possessed of the sovereign powers of a distinct political organization, to contend with the national government by adverse legislation. The subsequent expedient of a direct and equal representation of the States in one branch of the government has in reality, to a great degree, disarmed State jealousy and opposition, by giving to the States as political bodies an equal voice in the check established by the branch in which they are represented. So that to argue, that, because there were men who saw the necessity for making a purely national or proportionate system of popular representation consistent with the situation in which it would place the country, they were therefore in favor of a monarchical system, was to argue from premises to a conclusion in no way connected. Had such a plan been carried out, it could have been, and must have been, purely republican in all its details; and it would have been liable to the reproach of being _monarchical_ in no other sense than any system which did not yield the point of a full federal equality, for which Mr. Martin and his party contended. Undoubtedly, Hamilton, as I have said, was in favor of bestowing upon the national government full _power_ to legislate upon all subjects; and to this extent, and in this sense, he proposed the abolition of the State governments. But any one who will attend carefully to the course of his argument,--imperfectly as it has been preserved,--will find that it embraces the following course of reasoning. All federal governments are weak and distracted. In order to avoid the evils incident to that form, the government of the American Union must be a national representative system. But no such system can be successful, in the actual situation of this country, unless it is endowed with all the principles and means of influence and power which are the proper supports of government. It must therefore be made completely sovereign, and State power, as a separate legislative authority, must be annihilated; otherwise, the States will be not only able, but will be constantly tempted, to exert their own authority against the authority of the nation. I have already expressed the opinion, that in this view of the subject, assuming that the States were not to be admitted to an equal representation as political corporations in any branch of the government,--as the framers and friends of the Virginia plan had thus far contended,--Hamilton was right. I believe that a constitution, in which the States had not been placed upon an equal footing in one branch of the legislative power, and under which the State sovereignties had been left as they were left by the system actually adopted, if it could have been ratified by all the States, could not have endured to our times. Yet the fortunate result of the mixed system that is embraced in the Constitution of the United States, is the product, not simply of either of the theories of a national or a federal government, but of a compromise between the two. But the charge of anti-republican tendencies or designs has been most often urged against Hamilton, on account of his theoretical opinions concerning the comparative merits of different governments, and of certain features of the plan of a constitution which he read to the Convention. With respect to these points, I shall state the results of a very careful examination which I have made of all the sources of information as to the views and opinions which he expressed or entertained. Mr. Madison has given us what he probably intended as a full report of at least the substance of Hamilton's great speech addressed to the committee of the whole, and has informed us that his report was submitted to Colonel Hamilton, who approved it, with a few verbal changes. But how meagre a report, which fills but six pages in the octavo edition of Mr. Madison's "Debates," must have been in comparison with the speech actually made by Hamilton, will occur to every reader who notices the fact that the speech occupied the entire session of one day (June 18), and who examines the brief from which he spoke, and which is still extant. (Hamilton's Works, II. 409.) He was an earnest, and I am inclined to think a fervid and rapid speaker. Certainly he spoke from a mind full of knowledge of the principles and the working of other systems of polity, and possessed of resources which have never been excelled in any statesman who has been called to aid in the work of creating a government. The topics set down in his brief exhibit a very wide range of thought, enriched by copious illustrations from the history and experience of other countries, and from the views of the most important writers on government; while the whole argument bears logically and closely upon the actual situation of our confederacy and upon the questions at issue. It is not probable, therefore, that Mr. Madison's report gives us an adequate idea of the speech, or fully exhibits its reasoning. I have collated it, sentence by sentence, with the report in Judge Yates's Minutes, and with Hamilton's own brief, and have prepared for my own use a draft containing the substance of what these three sources can give us. The results may be thus given:-- 1. That Hamilton, in stating his views of the theoretical value of different systems of government, frankly expressed the opinion that the British constitution was the best form which the world had then produced;--citing the praise bestowed upon it by Necker, that it is the only government "which unites public strength with individual security." 2. That, with equal clearness, he stated it as his opinion that none but a republican form could be attempted in this country, or would be adapted to our situation. 3. That he proposed to look to the British Constitution for nothing but those elements of stability and permanency which a republican system requires, and which may be incorporated into it without changing its characteristic principles. The only question that remains, in order to form a judgment of his purposes, is, whether there was anything in the plan of a constitution drawn up by him that is inconsistent with the spirit of republican liberty. The answer is, that there was not. There is throughout this plan a constant recognition of the authority of the people, as the source of all political power. It proposed that the members of the Assembly should be elected by the people directly, and the members of the Senate by electors chosen for the purpose by the people. The executive was in like manner to be chosen by electors, appointed by the people or by the State legislatures. So far, therefore, his plan was as strictly republican, as is that of the Constitution under which we are actually living. But he proposed that the executive and the senators should hold their offices _during good behavior_; and this has been his offence against republicanism, with those who measure the character of a system by the frequency with which it admits of rotation in office. His accusers have failed to notice that he made his executive personally responsible for official misconduct, and provided that both he and the senators should be subject to impeachment and to removal from office. This was a wide departure from the principles of the English constitution, and it constitutes a most important distinction between a republican and a monarchical system, when it is accompanied by the fact that the office of a ruler or legislator is attained, not by hereditary right, or the favor of the crown, but by the favor and choice of the people. I have thus stated the principal points to which the inquiries of the reader should be directed in investigating the opinions of this great man, because I believe it to be unjust to impute to him any other than a sincere desire for the establishment and success of republican government. That he desired a strong government, that he was little disposed to dogmatize upon abstract theories of liberty, and that he trusted more to experience than to hypothesis, may be safely assumed. But that he ardently desired the success of that republican freedom which is founded on a perfect equality of rights among citizens, exclusive of hereditary distinctions, is as certain as that he labored earnestly throughout his life for the maxims, the doctrines, and the systems which he believed most likely to secure for it a fair trial and ultimate success. (See his description of his own opinions, when writing of himself as a third person in 1792; Works, VII. 52.) That the system of government sketched by Hamilton was not received by many of those who listened to him with disapprobation on account of what has since been supposed its _monarchical_ character, we may safely assume, on the testimony of Dr. Johnson of Connecticut, one of the most moderate men in the Convention. Contrasting the New Jersey and Virginia plans, he is reported (by Yates) to have said: "It appears to me that the Jersey plan has for its principal object the preservation of the State governments. So far it is a departure from the plan of Virginia, which, although it concentrates in a distinct national government, is not totally independent of that of the States. A gentleman from New York, with boldness and decision, proposed a system totally different from both; _and although he has been praised by everybody_, he has been supported by none." (Yates's Minutes, Elliot, I. 431.) Even Luther Martin did not seem to regard the objects of what he calls the monarchical party as being any worse, or more dangerous to liberty, than the projects of those whom he represents as aiming to obtain undue power and influence for their own States, and whom at the same time he acquits of monarchical designs or a desire to abolish the State governments. The truth is, that nobody had any improper purposes, or anything at heart but the liberties and happiness of the people of America. We are not to try the speculative views of men engaged in such discussions as these by the charges or complaints elicited in the heats of conflicting opinions and interests, inflamed by a zeal too warm to admit the possibility of its own error, or to perceive the wisdom and purity of an opponent. FOOTNOTES: [51] The regulation of commerce was not, any more than other specific powers, otherwise provided for than by these general descriptions. [52] This, together with the Virginia plan, which was recommitted along with it, was referred to a second committee of the whole, June 15th. [53] William Patterson of New Jersey. [54] See the remarks of Wilson, Pinckney, and Randolph, as given in Madison, Elliot, V. 195-198. [55] See his letter of September 16, 1803, addressed to Timothy Pickering; first published in Niles's Register, November 7, 1812. [56] See the note at the end of this chapter. [57] See the note at the end of this chapter. [58] Mr. Brearly and Mr. Patterson. [59] Louis XVI. [60] Necker. [61] Mr. Patterson had said, that, if they were to depart from the principle of equal sovereignty, the only expedient that would cure the difficulty would be to throw the States into hotchpot. To say that this was impracticable, would not make it so. Let it be tried, and they would see whether Massachusetts, Pennsylvania, and Virginia would accede to it. (Madison, Elliot, V. 194.) [62] Elliot, V. 206-211. [63] Madison, Elliot, V. 212. Journal, Elliot, I. 180. This vote was taken, and the committee of the whole were discharged, on the 19th of June. CHAPTER VI. CONFLICT BETWEEN THE NATIONAL AND FEDERAL SYSTEMS.--DIVISION OF THE LEGISLATURE INTO TWO CHAMBERS.--DISAGREEMENT OF THE STATES ON THE NATURE OF REPRESENTATION IN THE TWO BRANCHES.--THREATENED DISSOLUTION OF THE UNION. We are now approaching a crisis in the action of the Convention, the history of which is full of instruction for all succeeding generations of the American people. We have witnessed the formation of a minority of the States, whose bond of connection was a common opposition to the establishment of what was regarded as a "national" government. The structure of this minority, as well as that of the majority to which they were opposed, the motives and purposes by which both were animated, and the results to which their conflicts finally led, are extremely important to be understood by the reader. The relative rank of the different States in point of population, at the time of the formation of the Constitution, was materially different from what it is at the present day. Virginia, then the first State in the Union, is now the fourth. New York, now at the head of the scale, then ranked after North Carolina and Massachusetts, which occupied the third and fourth positions in the first census, and which now occupy respectively the sixth and tenth. South Carolina, which then had a smaller population than Maryland, now has a much greater. Georgia at that time had not half so many inhabitants as New Jersey, but now has twice as many. Great inequalities existed, as they still exist, between the different members of the confederacy, not only in the actual numbers of their inhabitants, and their present wealth, but in their capacity and opportunity of growth. Virginia, with a population fourteen times as large, had a territorial extent of thirty times the size of Delaware. Pennsylvania had nearly seven times as many people as Rhode Island, and nearly forty times as much territory. The State of Georgia numbered a little more than a third as many people, but her territory was nearly twelve times as large as the territory of Connecticut. The four leading States, Virginia, Pennsylvania, North Carolina, and Massachusetts, had an obvious motive for seeking the establishment of a government founded on a proportionate representation of their respective populations. The States of South Carolina and Georgia had generally acted with them in the formation of the Virginia plan; and these six States thus constituted the majority by which the principle of what was called a "national," in distinction from a "federal" government, had been steadily pressed to the conclusions arrived at in the committee of the whole, and now embraced in its report.[64] All but two of them were certain to remain slaveholding States; but in the adoption of numbers as the basis of representative influence in the government, they all had a common interest, which led them for the present to act together.[65] At the head of the minority, or the States which desired a government of federal equality, stood the State of New York, then the fifth State in the Union. She was represented by Alexander Hamilton, Robert Yates, and John Lansing, Junior. The two latter uniformly acted together, and of course controlled the vote of the State. Hamilton's vote being thus neutralized, his influence on the action of the Convention extended no farther than the weight and importance attached to his arguments by those who listened to them. Occupying at that period nearly a middle rank between the largest and the smallest of the States with respect to population, New York had not yet grasped, or even perceived, the wonderful elements of her future imperial greatness. Her commerce was not inconsiderable; but it had hitherto been the disposition of those who ruled her counsels to retain its regulation in their own hands, and to subject it to no imposts in favor of the general interests of the Union. Most of her public men, also,[66] held it to be impracticable to establish a general government of sufficient energy to pervade every part of the United States, and to carry its appropriate benefits equally to all, without sacrificing the constitutional rights of the States to an extent that would ultimately prove to be dangerous to the liberties of their people. Their view of the subject was, that the uncontrolled powers and sovereignties of the States must be reserved; and that, consistently with the reservation of these, a mode might be devised of granting to the confederacy the moneys arising from a general system of revenue, some power of regulating commerce and enforcing the observance of treaties, and other necessary matters of less moment. This was the opinion of Yates, the Chief Justice of the State, who may be taken as a fair representative of the sentiments of a large part, if not of a majority, of its people at this time.[67] But neither he, nor any of those who concurred with him, succeeded in pointing out the mode in which the power to collect revenues, to regulate commerce, and to enforce the observance of treaties, could be conferred on the confederacy, without impairing the sovereignties of the States. It does not appear whether this class of statesmen contemplated a grant of full and unrestrained power over these subjects to a federal government, or whether they designed only a qualified grant, capable of being recalled or controlled by the parties to the confederacy, for reasons and upon occasions of which those parties were to judge. From the general course of their reasoning on the nature of a federal government, it might seem that the latter was their intention.[68] It is not difficult to understand how these gentlemen may have supposed that an irrevocable grant of powers to a general government might be dangerous to the liberties of the people of the States, because such a grant would involve a surrender of more or less of the original State sovereignties to a legislative body external to the State itself. But if they supposed that a grant of such powers could be made to a "federal" government, or a political league of the States, acting through a single body in the nature of a diet, and to be exercised when necessary by the combined military power of the whole, and yet be any less dangerous to liberty, it is difficult to appreciate their fears or to perceive the consistency of their plan. If the liberties of the people were any the less exposed under their system, than under that of a "national" government, it must have been because their system was understood by them to involve only a qualified and revocable surrender of State sovereignty. But however this may have been, there was undoubtedly a settled conviction on the part of the two delegates of New York who controlled the vote of the State in the Convention, that they had not received the necessary authority from their own State to go beyond the principle of the Confederation; that it would be impracticable to establish a general government, without impairing the State constitutions and endangering the liberties of the people; and that what they regarded as a "consolidated" government was not in the remotest degree within the contemplation of the legislature of New York when they were sent to take their seats in the Convention. The same sentiments, with far greater zeal, with intense feeling and some acrimony, were held and acted upon by Luther Martin of Maryland, a very eminent lawyer, and at that time Attorney-General of the State, who sometimes had it in his power, from the absence of his colleagues, to cast the vote of his State with the minority, and who generally divided it on all critical questions that touched the nature of the government. The State itself, with a population but a little less than that of New York, had no great reason to regard itself as peculiarly exposed to the dangers to be apprehended from combinations among the larger States to oppress the smaller; and it does not appear that these apprehensions were strongly felt by any of her representatives excepting Mr. Martin.[69] The great energy and earnestness, however, of that distinguished person, prevented a concurrence of the State with the purposes and objects of the majority. Connecticut might reasonably consider herself as one of the smaller States, and her vote was steadily given for an equality of suffrage in both branches of the national legislature, down to the time of the final division upon the Senate. The States of New Jersey and Delaware formed the other members of the minority, upon this general question. On the one side, therefore, of what would have been, but for the great inequalities among the States, almost a purely speculative question, we find a strong determination, the result of an apparent necessity, to establish a government in which the democratic majority of the whole people of the United States should be the ruling power; and in which, so far as State influence was to be felt at all, it should be felt only in proportion to the relative numbers of the people composing each separate community. It was considered by those who embraced this side of the question, that, when the great States were asked to perpetuate the system of federal equality on which the Confederation had been founded, they were asked to submit to mere injustice, on account of an imaginary danger to their smaller confederates. They held it to be manifestly wrong, that a State fourteen times as large as Delaware should have only the same number of votes in the national legislature. Whether the States were now met as parties to a subsisting confederacy, under which they might be regarded in the same light as the individuals composing the social compact; or whether they were to be looked upon as so many aggregates of individuals for whose personal rights and interests provision was to be made, as if they composed a nation already united, it was believed by the majority that no safe and durable government could be formed, if the democratic element were to be excluded. Pure democracies had undoubtedly been attended with inconveniences. But how could peace and real freedom be preserved, under the republican form, if half a million of people dwelling in one political division of the country possessed only the same suffrage in the enactment of laws as sixty thousand people dwelling in another division? Leave out of view the theory which taught that the States alone, regarded as members of an existing compact, must be considered as the parties to the new system, as they had been to the old, and it would be found that the political equality of the free citizens of the United States could be made a source of that energy and strength so much needed and as yet so little known. With it was connected the idea and the practicability of legislation that would reach and control individuals. Without it, there could be only a system of coercion of the States, whose opposition would be invited, rather than repressed, upon all occasions of importance. Abandon the necessary principle of governing by a democratic majority, said George Mason, and if the government proceeds to taxation, the States will oppose its powers.[70] On the other hand, the minority, insisting on a rigid construction of their powers, and planting themselves upon the nature of the compact already formed between the States, contended that these separate and sovereign communities had distinct governments already vested with the whole political power of their respective populations, and therefore that they could not, consistently with the truth of their situation, act as if the whole or any considerable part of that power could be transferred by the people themselves to another government. They said, that whatever power was to be conferred on a central or general government must be granted by the States, as political corporations, and that therefore the principle of the Union could not be changed, whatever addition it might be expedient to make to its authority. They said, that, even if this theory were not strictly true, the smaller States could not safely unite with the larger upon any other; and especially that they could not surrender their liberties to the keeping of a majority of the people inhabiting all the States, for such a power would inevitably destroy the State constitutions. They were willing, they said, to enlarge the powers of the federal government; willing to provide for it the means of compelling obedience to its laws; willing to hazard much for the general welfare. But they could not consent to place the very existence of their local governments, with all their capacity to protect the distinct interests of the people, and all their peculiar fitness for the administration of local concerns, at the mercy of great communities, whose policy might overshadow and whose power might destroy them. To the claim of political equality as between a citizen of the largest and a citizen of the smallest State in the Union, they opposed the doctrine, that in his own State every citizen is equal with every other, and holds such rights and liberties, and so much political power, as the State may see fit to bestow upon him; but that, when separate States enter into political relations with each other for their common benefit, it is among the States themselves that the equality must prevail, because States can only be parties to a compact upon a footing of natural equality, just as individuals are supposed to enter society with equal natural rights. This doctrine, they said, was especially necessary to be applied between States of very unequal magnitudes. If applied, it would render unnecessary the division of the legislative body into two chambers; would dispense with any but a supreme judicial tribunal; and would admit of a ratification by the States in Congress, without raising the hazardous and doubtful question of a direct resort to the people, whose power to act independently of their State governments was by some strenuously denied. These, in substance, were the principles now brought into direct collision, urged under a great variety of forms, and recurring upon the successive details of the Constitution, as its formation proceeded, and pressed with equal earnestness and equally firm convictions of duty on both sides. I confess that it does not seem to me important, if it be practicable, to decide which party was theoretically correct. A great deal of the reasoning on both sides was speculative, and it is not easy to deny some of the chief propositions which were maintained on the one side and the other. We are too apt, perhaps, to judge of the real soundness of the opinions held by opposite parties to the first compromise of the Constitution, by the subsequent history and success of the government, and by the views and feelings which we entertain of that history and that success. Whereas, in truth, if we place ourselves at the point where the framers of the Constitution stood at the time we are examining, we shall find that, with the exception of the influence due to one or two governing facts of previous history, it was theoretically as correct to contend for a purely federal as for a purely national government. Almost everything depends upon the object towards which they were to reason; and therefore the premises were in a considerable degree open to an arbitrary choice. If the object was to establish a government, against the exercise of whose legitimate powers State legislation could not possibly be exerted, some higher authority than that of the State governments must be resorted to; and the reasoning which tended to prove the existence of that authority and the practicability of invoking it, and the danger of any other kind of government, comes logically and consistently in support of the great purpose to be attained. If, however, from an honest fear for the safety of local interests, the purpose was to have a government that would not seriously diminish the powers of the States, but would leave them with always unimpaired sovereignties, capable of resisting the measures of the central power, then the States were certainly competent and sufficient to the formation of such a system, and the reasoning which placed them in the light of parties to a social compact was theoretically true. On the one side, it was believed that a government formed by the States upon the principle of federal equality would be destructive of the powers of the general government, whatever those powers might be. On the other side, it was considered that the principle of governing by a democratic majority of the people of all the States would make those powers too formidable for the safety of the State constitutions. According to the force we may assign to the one or the other tendency, the reasoning on either side will appear to us to be almost equally correct. But there were, as I have said, one or two facts of previous history, which gave the advocates of a national government a great advantage over their opponents, and went far towards settling the real merits of the two opposite systems. A federal system had been tried, and had broken down in complete prostration of all the appropriate energies and functions of government. The advocates of the opposite system, therefore, could point to all the failures and all the defects of the Confederation, in proof of the reasoning which they employed. In addition to this, they could adduce the same general tendency in all former confederacies of the same nature. But no experiment had been made by the people of the American States, of a government founded expressly on the national character and relations of their inhabitants; and if the merits of such a government were now only to be maintained by theoretical reasoning, on the other hand it had not suffered the injury of acknowledged defeat. The difficulty in the way of its adoption was its supposed tendency to absorb, and perhaps to annihilate, the sovereignties of the States. The advocates of the Virginia plan were called upon to show how the general sovereignty and jurisdiction which they proposed to give to their system could consist with a considerable, though subordinate, jurisdiction in the States. One of its moderate and candid opponents[71] declared that, if this could be shown, the objections to it ought to be surrendered; but if not, he thought that those objections must have their full force. But, from the very nature of the case, that which had not been demonstrated by experience could rest only upon opinion; and while the Virginia system made no other provision for State defence against encroachments of the general government than such as might be found in the election by the State legislatures of the national Senate, the apprehensions of the smaller States could not be satisfied, however admirable the theory, and however able might be the reasoning by which it was supported. Let the reader, then, as he pursues the history of this conflict between the opposing interests of the two classes of States, and observes how strenuously the different theories were maintained, until victory became impossible on either side, note the danger of adhering too firmly to mere theoretical principles, in matters of government. He will see the impressive spectacle of States assembled for the formation of some system capable of answering the exigencies of their situation; he will see how rapidly a difference of local interests developed the most opposite theories, and how profoundly those theories were discussed; and he will see this conflict carried on for days, and even for weeks, with all the sincerity that interest lends to conviction, and all the tenacity that conviction can produce, until at last the whole discussion leads to the probable failure of the purpose for which the assembly had been instituted. He will then see an amalgamation of the two systems, which in their integrity were irreconcilable, and will witness the first introduction of that mode of adjusting opposite interests and conflicting theories of government which lies at the basis of the Constitution of the United States, and which alone can furnish a safe foundation on which to unite the destinies and wants of separate communities possessed of distinct political organizations and rights. The Convention had received the report of the committee of the whole on the 19th of June. From that day until the 5th of July the struggle was continued, commencing with the proposition which affirmed the division of the legislative department of the government into two branches. Although such an arrangement did not necessarily involve the principle of national and popular representation, it was opposed as unnecessary by those who desired to retain the system of representation by States, and who therefore intended to preserve the existing organization of the Congress. Still, the needful harmony and completeness of the scheme, according to the genius of the Anglo-American liberty, required this division of the legislature. Doubtless a single council or chamber can promulgate decrees and enact laws; but it had never been the habit of the people of America, as it never had been the habit of their ancestors for at least a period of somewhat more than five centuries, to regard a single chamber as favorable to liberty, or to wise legislation.[72] The separation into two chambers of the lords spiritual and temporal, and the commons, in the English constitution, does not seem to have originated in a difference of personal rank, so much as in their position as separate estates of the realm. All the orders might have voted promiscuously in one house, and just as effectually signified the assent or dissent of Parliament to any measure proposed.[73] But the practice of making the assent of Parliament to consist in the concurrent and separate action of the two estates, though difficult to be traced to its origin in any distinct purpose or cause, became confirmed by the growing importance of the commons, by their jealousy and vigilance, and by the controlling position which they finally assumed. As Parliament gradually proceeded to its present constitution, and the separate rights and privileges of the two houses became established, it was found that the practice of discussing a measure in two assemblies, composed of different persons, holding their seats by a different tenure and representing different orders of the state, was in the highest degree conducive to the security of the subject, and to sound legislation.[74] So fully was the conviction of the practical convenience and utility of two chambers established in the Anglican mind, that, when representative government came to be established in the British North American Colonies, although the original reason for the division ceased to be applicable, it was retained for its incidental advantages. In none of these Colonies was there any difference of social condition, or of political privilege or power, recognized in the system of representation; and as there were, therefore, no separate estates or orders among the people, requiring to be protected against each other's encroachments, or holding different relations to the crown, we cannot attribute the adherence to the system of two chambers, on the part of those who solicited and received the privilege of establishing these colonial governments, to anything but their belief in its practical advantages for the purposes of legislation. Still less can we suppose, that after the Revolution, and when there no longer existed any such motive as might have influenced the crown in modelling the colonial after the imperial institutions, to a certain extent, the people of these States should have perpetuated in their constitutions the principle of a division of the legislature into two chambers, for any other purpose than to secure the practical benefits which they and their ancestors had always found to flow from it. Only three exceptions to this practice existed in America, at the time of the formation of the Constitution. They were the legislatures of the States of Pennsylvania and Georgia, and the Congress of the Confederation. But the Congress being in fact only an assembly of deputies from confederated States, the means scarcely existed for the application of the principle so familiar in the legislatures of most of the States themselves. As a new government was now to be formed, whose theoretical and actual powers were to be essentially different, an opportunity was afforded for the ancient and favorite construction of the legislative department. The proposal was resisted, not because it was doubted that, in a government of direct legislative authority, in which the people are themselves to be represented, the system of two chambers is practically the best, but because those who opposed its introduction denied the propriety of attempting to establish a government of that kind. The States of New York, New Jersey, and Delaware, therefore, recorded their votes against such a division of the legislature, and the vote of Maryland was divided upon the question.[75] The reader will observe, however, that, in its present aspect, there was a chasm in the Virginia plan, which to some extent justifies the opposition of the minority to the system of two legislative chambers. According to that plan, the people of the States were to be represented in both chambers in proportion to their numbers. But as there were no distinct orders among the people to furnish a different basis for the two houses, the system must either be a mere duplicate representation of the whole people, as it is in the State constitutions generally, or some artificial basis must be provided for one house, to distinguish it from the other, and to furnish a check as between the two. In a republican government, and in a state of society where property is not entailed and distinctions of personal rank cannot exist, such a basis is not easily found; and if found, is not likely to be stable and effectual. The happy expedient of selecting the States as the basis of representation in the Senate, which had not yet been agreed upon, and which was resorted to as an adjustment of a serious conflict between two opposite principles of government, has furnished a really different foundation for the two branches, as distinct as the separate representation of the different orders in the British constitution. It has thus secured the incidental advantages of two chambers, without resorting to those fluctuating or arbitrary distinctions among the people, which can alone afford, in such a country as ours, even an ostensible difference of origin for legislative bodies. The same struggle which had been maintained upon this question was continued through all the votes taken upon the mode of electing the members of the two branches, and upon their tenure of office. It is not necessary here to rehearse the details of these proceedings; the result was, that the members of the first branch of the legislature were to be chosen by the people of the States for a period of two years, and to be twenty-five years of age, while the members of the second or senatorial branch were to be chosen by the State legislatures for a period of six years, and to be thirty years of age. The States of Pennsylvania and Virginia voted against the election of senators by the legislatures of the States, because it was still uncertain whether an equality or a ratio of representation would finally prevail in that branch, and the election by the legislatures was considered to have a tendency to the adoption of an equality.[76] At length, the sixth resolution, which defined the powers of Congress, and the seventh and eighth, which involved the fundamental point of the suffrage in the two branches, were reached.[77] The subject of the powers of Congress was postponed, and the question was stated on the rule of suffrage for the first branch, which the resolution declared ought to be according to an equitable ratio. In the great debate which ensued, Madison, Hamilton, Gorham, Reed, and Williamson combated the objections of the smaller States, while Luther Martin, with his accustomed warmth, resisted the introduction of the new principle. The discussion involved on both sides a repetition of the arguments previously employed; but some of the views presented are of great importance, especially those taken by Madison and Hamilton, of the situation in which the smaller States must be placed, if a constitution should not be formed and adopted containing a just distribution of political power among the whole people of the country, creating thereby a government of sufficient energy to protect each and all of the States against foreign powers, against the influence of the larger members of the confederacy, and against the dangers to be apprehended from their own governments. Let each State, said Mr. Madison, depend on itself for its security, in a position of independence of the Union, and let apprehensions arise of dangers from distant powers, or from neighboring States, and from their present languishing condition, all the States, large as well as small, would be transformed into vigorous and high-toned governments, with an energy fatal to liberty and peace. The weakness and jealousy of the smaller States would quickly introduce some regular military force, against sudden danger from their powerful neighbors; the example would be followed, would soon become universal, and the means of defence against external danger would become the instruments of tyranny at home. These consequences were to be apprehended, whether the States should run into a total separation from each other, or into partial confederacies. Either event would be truly deplorable, and those who might be accessory to either could never be forgiven by their country, or by themselves.[78] To these consequences of a dissolution of the Union, Hamilton added another, equally serious. Alliances, he declared, must be formed with different rival and hostile nations of Europe, who would seek to make us parties to their own quarrels. The representatives of foreign nations having American dominions betrayed the utmost anxiety about the result of that meeting of the States. It had been said that respectability in the eyes of Europe was not the object at which we were to aim; that the proper design of republican government was domestic tranquillity and happiness. This was an ideal distinction. No government could give us tranquillity and happiness at home, which did not possess sufficient stability and strength to make us respectable abroad. This was the critical moment for forming such a government. We should run every risk in trusting to future amendments. As yet, we retain the habits of union. We are weak, and sensible of our weakness. Henceforward the motives would become feeble and the difficulties greater. It was a miracle that they were here, exercising their tranquil and free deliberations on the subject. It would be madness to trust to future miracles.[79] But these warnings were of no avail against the settled determination of those who saw greater dangers in the establishment of a government which was in their view to approximate the condition of the States to that of counties in a single State. The principle of a proportionate representation of the populations of the State, was just and necessary; but it was now leading to the extreme of an entire separation, because it was carried to the extreme of a full application to every part of the government. In like manner, there was an equally urgent necessity for some provision which should receive the States in their political capacity, and on a footing of equality, as constituent parts of the system. But this principle was now forcing the majority into the alternative of a partial confederacy, or of none at all, because it was insisted that the government must be exclusively founded on it. Neither party was ready to adopt the suggestion that the two ideas, instead of being opposed, ought to be combined, so that in one branch the people should be represented, and in the other the States.[80] The consequence was that the proportionate rule of suffrage for the first branch was established by a majority of one State only;[81] and the Convention passed on, with a fixed and formidable minority wholly dissatisfied, to consider what rule should be applied to the Senate. The objects of a Senate were readily apprehended. They were, in the first place, that there might be a second chamber, with a concurrent authority in the enactment of laws; secondly, that a greater degree of stability and wisdom might reside in its deliberations, than would be likely to be found in the other branch of the legislative department; and, thirdly, that there might be some diversity of interest between the two bodies. These objects were to be attained by providing for the Senate a distinct and separate basis of its own. If such a basis is found among the individuals composing a political society, it must consist of the distinctions among them either in respect to social rank or in respect to property. With regard to the first, the absence of all distinctions of rank rendered it impossible to assimilate the Senate of the United States to the aristocratic bodies which were found in other governments possessed of two legislative chambers. Property, as held by individuals, might have been assumed as the basis of a distinct representation, if the laws and customs of the different States had generally admitted of its possession in large masses through successive generations. But they did not admit of it. The general distribution and diffusion of property was the rule; its lineal transmission from the father to the eldest son was the exception. Had the Senate been founded upon property, it must have been upon the ratio of wealth as between the different States, in the same manner in which the senatorial representation of counties was arranged under the first constitution of Massachusetts.[82] It was very soon settled and conceded, that the States, as political societies, must be preserved; and if they were to be represented as corporations, or as so many separate aggregates of individuals, they must be received into the representation on an equal footing, or according to their relative weight. An inquiry into their relative wealth must have involved the question, as to five of them at least, whether their slaves were to be counted as part of that wealth. No satisfactory decision of this naked question could have been had; and it is to be considered among the most fortunate of the circumstances attending the formation of the Constitution, that this question was not solved, with a view of founding the Senate upon the relative wealth of the States. Two courses only remained. The basis of representation in the Senate must either be found in the numbers of people inhabiting the States, creating an unequal representation, or the people of each State, regarded as one, and as equal with the people of every other State, must be represented by the same number of voices and votes. The former was the plan insisted on by the friends and advocates of the "national" system; the latter was the great object on which the minority now rallied all their strength. The debate was not long protracted; but it was marked with an energy, a firmness, and a warmth, on both sides, which reveal the nature of the peril then hanging over the unformed institutions, whose existence now blesses the people of America. As the delegations of the States approached the decision of this critical question, the result of a separation became apparent, and with it phantoms of coming dissension and strife, of foreign alliances and adverse combinations, loomed in the future. Reason and argument became powerless to persuade. Patriotism, for a moment, lost its sway over men who would at any time have died for their common country. Not mutterings only, but threats even were heard of an appeal to some foreign ally, by the smaller States, if the larger ones should dare to dissolve the confederacy by insisting on an unjust scheme of government. Ellsworth, of Connecticut, in behalf of the minority, offered to accept the proportional representation for the first branch, if the equality of the States were admitted in the second, thus making the government partly national and partly federal. It would be vain, he said, to attempt any other than this middle ground. Massachusetts was the only Eastern State that would listen to a proposition for excluding the States, as equal political societies, from an equal voice in both branches. The others would risk every consequence, rather than part with so dear a right. An attempt to deprive them of it was at once cutting the body of America in two. At this moment, foreseeing the probability of an equal division of the States represented in the Convention, one of the New Jersey members[83] proposed that the President should write to the executive of New Hampshire, to request the attendance of the deputies who had been chosen to represent that State, and who had not yet taken seats. Two States only voted for this motion,[84] and the discussion proceeded. Madison, Wilson, and King, with great earnestness, resisted the compromise proposed by Ellsworth, and when the vote was finally taken, five States were found to be in favor of an equal representation in the Senate, five were opposed to it, and the vote of Georgia was divided.[85] Thus was this assembly of great and patriotic men brought finally to a stand, by the singular urgency with which opposite theories, springing from local interests and objects, were sought to be pressed into a constitution of government, that was to be accepted by communities widely differing in extent, in numbers, and in wealth, and in all that constitutes political power, and which were at the same time to remain distinct and separate States. As we look back to the possibility of a failure to create a constitution, and try to divest ourselves of the identity which the success of that experiment has given to our national life, the imagination wanders over a dreary waste of seventy years, which it can only fill with strange images of desolation. That the administration of Washington should never have existed; that Marshall should never have adjudicated, or Jackson conquered; that the arts, the commerce, the letters of America should not have taken the place which they hold in the affairs of the world; that instead of this great Union of prosperous and powerful republics, made one prosperous and powerful nation, history should have had nothing to show and nothing to record but border warfare and the conflicts of worn-out communities, the sport of the old clashing policies of Europe; that self-government should have become one of the exploded delusions with which mankind have successively deceived themselves, and republican institutions have been made only another name for anarchy and social disorder;--all these things seem at once inconceivable and yet probable,--at once the fearful conjurings of fancy, and the inevitable deductions of reason. We know not what combinations, what efforts, might have followed the separation of that convention of American statesmen, without having accomplished the work for which they had been assembled. We do know, that, if _they_ could not have succeeded in framing and agreeing upon a system of government capable of commending itself to the free choice of the people of their respective States, no other body of men in this country could have done it. We know that the Confederation was virtually at an end; that its power was exhausted, although it still held the nominal seat of authority. The Union must therefore have been dissolved into its component parts, but for the wisdom and conciliation of those who, in their original earnestness to secure a perfect theory, had thus encountered an insuperable obstacle and brought about a great hazard. I have elsewhere said that these men were capable of the highest of the moral virtues,--that their magnanimity was as great as their intellectual acuteness and strength. Let us turn to the proof on which rests their title to this distinction. FOOTNOTES: [64] Rhode Island was never represented in the Convention, and the delegation of New Hampshire had not yet attended. [65] In all these statements of the relative rank of the States, I compare the census of 1790 and that of 1850. [66] The two great exceptions of course were Hamilton and Jay. [67] See the candid and moderate letter of Messrs. Yates and Lansing to the legislature of the State, giving their reasons for not signing the Constitution. (Elliot, I. 480.) [68] In the New Jersey plan, which the New York gentlemen (Hamilton excepted) supported, although the power to levy duties and the regulation of commerce were to be added to the existing powers of the old Congress, yet as these powers were to be exerted against the States, in the last resort, by force, it would only have been necessary for a State to place itself in an attitude of resistance, by a public act, and then the grant of power might have been considered to be revoked by the very act of resisting its execution. [69] Three of the delegates of the State, James McHenry, Daniel of St. Thomas Jenifer, and Daniel Carroll, signed the Constitution. [70] Yates's Minutes, Elliot, I. 433. [71] Dr. Johnson of Connecticut. [72] Mr. Hallam has traced the present constitution of Parliament to the sanction of a statute in the 15th of Edward II. (1322), which he says recognizes it as already standing upon a custom of some length of time. Const. History, I. 5. [73] Mr. Hallam does not concur in what he says has been a prevailing opinion, that Parliament was not divided into two houses at the first admission of the commons. That they did not sit in separate chambers proves nothing; for one body may have sat at the end of Westminster Hall, and the other at the opposite end. But he thinks that they were never intermingled in voting; and, in proof of this, he adduces the fact that their early grants to the King were separate, and imply distinct grantors, who did not intermeddle with each others' proceedings. He further shows, that in the 11th Edward I. the commons sat in one place and the lords in another; and that in the 8th Edward II. the commons presented a separate petition or complaint to the King, and the same thing occurred in 1 Edward III. He infers from the rolls of Parliament, that the houses were divided as they are at present in the 8th, 9th and 19th Edward II. (See the very valuable Chapter VIII., on the English Constitution, in Hallam's Middle Ages, III. 342.) [74] See on this subject Lieber on Civil Liberty, I. 209, edit. 1853. [75] Connecticut upon this question voted with the majority. [76] Madison, Elliot, V. 240. [77] June 28. [78] Madison, Elliot, V. 256. [79] Madison, Elliot, V. 258. [80] It was made at this stage by Dr. Johnson. [81] The States opposed to an equality of suffrage in the first branch were Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia, 6; those in favor of it were Connecticut, New York, New Jersey, and Delaware. The vote of Maryland was divided. [82] Mr. Baldwin of Georgia suggested this model. [83] David Brearly. [84] New York and New Jersey. [85] The question was put upon Ellsworth's motion to allow the States an equal representation in the Senate. The vote stood, Connecticut, New York, New Jersey, Delaware, Maryland, _ay_. 5; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, _no_, 5; Georgia divided. The person who divided the vote of Georgia, and thus prevented a decision which must have resulted in a disruption of the Convention, was Abraham Baldwin. We have no account of the motives with which he cast this vote, except an obscure suggestion by Luther Martin, which is not intelligible. (Elliot, I. 356.) Baldwin was a very wise and a very able man. He was not in favor of Ellsworth's proposition, but he probably saw the consequences of forcing the minority States to the alternatives of receiving what they regarded as an unjust and unsafe system, or of quitting the Union. By dividing the vote of his State he prevented this issue, although he also made it probable that the Convention must be dissolved without the adoption of any plan whatever. CHAPTER VII. FIRST GRAND COMPROMISES OF THE CONSTITUTION.--POPULATION OF THE STATES ADOPTED AS THE BASIS OF REPRESENTATION IN THE HOUSE.--RULE FOR COMPUTING THE SLAVES.--EQUALITY OF REPRESENTATION OF THE STATES ADOPTED FOR THE SENATE. As the States were now exactly divided on the question whether there should be an equality of votes in the second branch of the legislature, some compromise seemed to be necessary, or the effort to make a constitution must be abandoned. A conversation as to what was expedient to be done, resulted in the appointment of a committee of one member from each State, to devise and report some mode of adjusting the whole system of representation.[86] According to the Virginia plan, as it then stood before the Convention, the right of suffrage in both branches was to be upon some equitable ratio, in proportion to the whole number of free inhabitants in each State, to which three fifths of all other persons, except Indians not paying taxes, were to be added. Nothing had been done, to fix the ratio of representation; and although the principle of popular representation had been affirmed by a majority of the Convention as to the first branch, it had been rejected as to the second by an equally divided vote of the States. The whole subject, therefore, was now sent to a committee of compromise, who held it under consideration for three days.[87] The same struggle which had been carried on in the Convention was renewed in the committee; the one side contending for an inequality of suffrage in both branches, the other for an equality in both. Dr. Franklin at length gave way, and proposed that the representation in the first branch should be according to a fixed ratio of the inhabitants of each State, computed according to the rule already agreed upon, and that in the second branch each State should have an equal vote. The members of the larger States reluctantly acquiesced in this arrangement; the members of the smaller States, with one or two exceptions, considered their point gained. When the report came to be made, it was found that the committee had not only agreed upon this as a compromise, but that they had made a distinction of some importance between the powers of the two branches, by confining to the first branch the power of originating all bills for raising or appropriating money and for fixing the salaries of officers of the government, and by providing that such bills should not be altered or amended in the second branch. This was intended for a concession by the smaller States to the larger.[88] The ratio of representation in the House was fixed by the committee at one member for every forty thousand inhabitants, in which three fifths of the slaves were to be computed; each State not possessing that number of inhabitants to be allowed one member. The number of senators was not designated. This arrangement was, upon the whole, reasonable and equitable. It balanced the equal representation of the States in the Senate against the popular representation in the House, and it gave to the larger States an important influence over the appropriations of money and the levying of taxes. Nor can the admission of the slaves, in some proportion, into the rule of representation, be justly considered as an improper concession, in a system in which the separate organizations of the States were to be retained, and in which the States were to be represented in proportion to their respective populations. The report of the committee had recommended that this plan should be taken as a whole; but as its several features were distasteful to different sections of the Convention, and almost all parties were disappointed in the result arrived at by the committee, the several parts of the plan became at once separate subjects of discussion. In the first place, the friends of a pure system of popular representation in both branches objected to the provision concerning money and appropriation bills, as being no concession on the part of the smaller States, and as a useless restriction.[89] It therefore, in their view, left in force all their objections against allowing each State an equal voice in the Senate. But it was voted to retain it in the report,[90] and the equal vote of the States in the second branch was also retained.[91] The scale of apportionment of representatives, recommended in the report of the committee, was also objected to on various grounds. It was said that a mere representation of persons was not what the circumstances of the case required;--that property as well as persons ought to be taken into the account in order to obtain a just index of the relative rank of the States. It was also urged, that, if the system of representation were to be settled on a ratio confined to the population alone, the new States in the West would soon equal, and probably outnumber, the Atlantic States, and thus the latter would be in a minority for ever. For these reasons, the subject of apportioning the representatives was recommitted to five members,[92] who subsequently proposed a scheme, by which the first House of Representatives should consist of fifty-six members, distributed among the States upon an estimate of their present condition,[93] and authorizing the legislature, as future circumstances might require, to increase the number of representatives, and to distribute them among the States upon a compound ratio of their wealth and the numbers of their inhabitants.[94] The latter part of this proposition was adopted, but a new and different apportionment, of sixty-five members for the first meeting of the legislature, was sanctioned by a large vote of the States, after a second reference to a committee of one member from each State.[95] These votes had been taken for the purpose of agreeing upon amendments to the original report of the compromise committee, which they would have so modified as to introduce into it, in place of a ratio of forty thousand inhabitants, including three fifths of the slaves, a fixed number of representatives for the first meeting of the legislature, distributed by estimate among the States, and for all subsequent meetings an apportionment by the legislature itself upon the combined principles of the wealth and numbers of inhabitants of the several States. But in order to understand the objections to the latter part of this proposition, and the modifications that were still to be made in it, it is necessary for us here to recur to that special interest which caused a new and most serious difficulty in the subject of representation, and which now began to be distinctly asserted by those whose duty it was to provide for it. There is no part of the history of the Constitution that more requires to be examined with a careful attention to facts, with an unprejudiced consideration of the purposes and motives of those who became the agents of its great compromises and compacts between sovereign States, and with an impartial survey of the difficulties with which they had to contend. Twice had the Convention affirmed the propriety of counting the slaves, if the States were to be represented according to the numbers of their inhabitants; and on the part of the slaveholding States there had hitherto been no dissatisfaction manifested with the old proportion of three fifths, originally proposed under the Confederation as a rule for including them in the basis of taxable property. But the idea was now advanced, that numbers of inhabitants were not a sufficient measure of the wealth of a State, and that, in adjusting a system of representation between such States as those of the American Union, regard should be had to their relative wealth, since those which were to be the most heavily taxed ought to have a proportionate influence in the government. Hence the plan of combining numbers and wealth in the rule. This was mainly an expedient to prevent the balance of power from passing to the Western from the Atlantic States.[96] It was supposed that the former might in progress of time have the larger amount of population; but that, as the latter would at the commencement of the government have the power in their own hands, they might deal out the right of representation to new States in such proportions as would be most for their own interests. Still there were grave objections to this combined rule of numbers and wealth as applied to the slaveholding States. In the first place, it was extremely vague; it left the question wholly undetermined whether the slaves were to be regarded as persons or as property, and therefore left that question to be settled by the legislature at every revision of the system. Moreover, although this rule might enable the Atlantic States to retain the predominating influence in the government as against the Western interests, it might also enable the Northern to retain the control as against the Southern States, after the former had lost and the latter had gained a majority of population. The proposed conjectural apportionment of members for the first Congress would give thirty-six members to the States that held few or no slaves, and twenty-nine to the States that held many. Mason and Randolph, who represented in a candid manner the objections which Virginia must entertain to such a scheme, did not deny, that, according to the present population of the States, the Northern part had a right to preponderate; but they said that this might not always be the case; and yet that the power might be retained unjustly, if the proportion on which future apportionments were to be made by the legislature were not ascertained by a definite rule, and peremptorily fixed by the Constitution. Gouverneur Morris, who strenuously maintained the necessity for guarding the interests of the Atlantic against those of the Western States, insisted that the combined principles of numbers and wealth gave a sufficient rule for the legislature; that it was a rule which they could execute; and that it would avoid the necessity of a distinct and special admission of the slaves into the census,--an idea which he was sure the people of Pennsylvania would reject. Mr. Madison argued, forcibly, that unfavorable distinctions against the new States that might be formed in the West would be both unjust and impolitic. He thought that their future contributions to the treasury had been much underrated; that the extent and fertility of the Western soil would create a vast agricultural interest; and that, whether the imposts on the foreign supplies which they would require were levied at the mouth of the Mississippi or in the Atlantic ports, their trade would certainly advance with their population, and would entitle them to a rule which should assume numbers to be a fair index of wealth. The arguments against the combined principles of numbers and wealth, as a mere general direction to the legislature, and against their joint operation upon the contrasted interests of the Western and the Atlantic States, appear to have prevailed with some of the more prominent of the Northern members.[97] Accordingly, when a counter proposition was brought forward by Williamson,[98]--which contemplated a return to the principle of numbers alone, and was intended to provide for a periodical census of the free white inhabitants and of three fifths of all other persons, and that the representation should be regulated accordingly,--six States on a division of the question voted for a census of the free inhabitants, and four States recorded their votes against it.[99] This result brought the Convention to a direct vote upon the naked question whether the slaves should be included as persons, and in the proportion of three fifths, in the census for the future apportionment of representatives among the States. Massachusetts and Pennsylvania now, for the first time, separated themselves from Virginia. It was perceived that a system of representation by numbers would draw after it the necessity for an admission of the slaves into the enumeration, unless it were confined to the free inhabitants. On the one hand, the delegates of these two States had to look to the probable encouragement of the slave-trade, that would follow an admission of the blacks into the representation, and to the probable refusal of their constituents to sanction such an admission. On the other hand, they had to encounter the difficulty of arranging a just rule of popular representation between States which would have no slaves, or very few, and States which would have great numbers of persons in that condition, without giving to the latter class of States some weight in the government proportioned to the magnitude of their populations. But they would not directly admit the naked principle that a slave is to be placed in the same category with a freeman for the purpose of representation, when he has no voice in the appointment of the representative; and the proposition was rejected by their votes and those of four other States.[100] Thereupon the whole substitute of Mr. Williamson, which contemplated numerical representation in the place of the combined rule of numbers and wealth, was unanimously rejected. The report of the committee of compromise still stood, therefore, but modified into the proposition of a fixed number for the first House of Representatives, and a rule to be compounded of the numbers and wealth of the States, to be applied by the legislature in adjusting the representation in future houses. A difficulty, apparently insuperable, had defeated the application of the simple and--as it might otherwise appropriately be called--the natural rule of numerical representation. The social and political condition of the slave, so totally unlike that of the freeman, presented a problem hitherto unknown in the voluntary construction of representative government. It was certainly true, that, by the law of the community in which he was found, and by his normal condition, he could have no voice in legislation. It was equally true, that he was no party to the establishment of any State constitution; that nobody proposed to make him a party to the Constitution of the United States, to confer upon him any rights or privileges under it, or to give to the Union any power to affect or influence his _status_ in a single particular. It was true also, that the condition in which he was held was looked upon with strong disapprobation and dislike by the people of several of the States, and it was not denied by some of the wisest and best of the Southern statesmen that it was a political and social evil. Still, there were more than half a million of these people of the African race, distributed among five of the States, performing their labor, constituting their peasantry, and--if the numbers of laborers in a community form any just index of its wealth and importance--forming in each of those States a most important element in its relative magnitude and weight. It should be recollected, that the problem before the framers of the Constitution was, not how to create a system of representation for a single community possessing in all its parts the same social institutions, but how to create a system in which different communities of mere freemen and other different communities of freemen and slaves could be represented, in a limited government instituted for certain special objects, with a proper regard to the respective rights and interests of those communities, and to the magnitude of the stake which they would respectively have in the legislation by which all were to be affected.[101] It does not appear, from any records of the discussions that have come down to us, in what way it was supposed the combined rule of numbers and wealth could be applied. If its application were left to Congress, in adjusting the system with reference to slaveholding States, the slaves must be counted as persons or as property; and as the proposed rule did not determine which, they might be treated as persons in one census, and as property in the next, and so on interchangeably. The suggestion of the principle, however, which seemed to be a just one, and which grew out of the conflicting opinions entertained upon the question whether numbers of inhabitants are alone a just index of the wealth of a community, brought into view a very important doctrine, that had long been familiar to the American people; namely, that the right of representation ought to be conceded to every community on which a tax is to be imposed; or, as one of the maxims of the Revolutionary period expressed it, that "taxation and representation ought to go together." This doctrine was really applicable to the case, and capable of furnishing a principle that would alleviate the difficulty; for if it could be agreed that, in levying taxes upon a slaveholding State, the wealth that consisted in slaves should be included, the maxim itself demonstrated the propriety of giving as large a proportion of representation as the proportion of tax imposed; and if, in order to ascertain the representative right of the State, the slaves were to be counted as persons, and, in ascertaining the tax to be paid, they were to be counted as property, they would not require to be considered in both capacities under either branch of the rule. But in order to give the maxim this application, it would be necessary to concede that the numbers of the slaves and the free persons furnished a fair index of the wealth of one State, as it was necessary to admit that the numbers of its free inhabitants furnished a fair index of the wealth of another State. If the latter were to be assumed, and the taxation imposed upon a State were regulated by its numbers of people, upon the idea that such numbers fairly represented the wealth of the community, it was proper to apply the same principle to the slaves. If this principle were applied to the slaves when ascertaining the amount of taxes to be paid, it ought equally to be applied to them in ascertaining the numbers of representatives to be allowed to the State; otherwise, the value of the slaves must be ascertained in some other way, for the purposes of taxation; the value or wealth residing in other kinds of property must be ascertained in the same mode, or under the different rule of assuming numbers of inhabitants as its index; and the slaves must be excluded as persons from the representation, which they could only enhance by being treated as taxable property. These further difficulties will appear, as we follow out the various steps taken for the purpose of applying the maxim which connects taxation with representation. The rule now under consideration, as the means of guiding the legislature in future distributions of the right of representation, was that they were to regulate it upon a ratio compounded of the wealth and numbers of inhabitants of the States. Gouverneur Morris now proposed to add to this, as a proviso, the correlative proposition, "that direct taxation shall be in proportion to representation." This was adopted; and it made the proposed rule of numbers and wealth combined applicable both to taxation and representation. But in truth it was as difficult to apply the combined rule of wealth and numbers to the subject of taxation, as between the States, as it was to apply it to the right of representation. This was not the first time in the history of the Union that these two subjects had been considered, and had been found to be surrounded with embarrassments. In 1776, when the Articles of Confederation were framed, it became necessary to determine the proportion in which the quotas of contribution to the general treasury should be assessed upon the States. Two obvious rules presented themselves as alternatives; either to apportion the quotas upon an estimate of the wealth of the States, or to assume that numbers of inhabitants of every condition presented a fair index of the pecuniary ability of a State to sustain public burdens. Here again, however, under either of these plans, the question would arise as to the kind of property to be regarded in the basis of the assessment. Should the slaves be treated as part of the property of a slaveholding State, either by a direct computation, or by counting them as part of the population, which was to be considered as the measure of its wealth? Mr. John Adams forcibly maintained that they ought not to be regarded as subjects of federal taxation, any more than the free laborers of the Northern States; but that numbers of inhabitants ought to be taken, indiscriminately, as the true index of the wealth of each State; and that thus the slave would stand upon the same footing with the free laborer, both being regarded as the producers of wealth, and therefore that both should add to the quota of tax or contribution to be levied upon the State.[102] Mr. Chase,[103] on the other hand, contended that practically this rule would tax the Northern States on numbers only, while it would tax the Southern States on numbers and wealth conjointly, since the slaves were property as well as persons. It is probable, however, that the slaveholding States would at that time have agreed to the adoption of numbers as the basis of assessment, if the Northern and Eastern States could have consented to receive the slaves into the enumeration in a smaller ratio than their whole number. But it was insisted that they should be counted equally with the free laborers of the other States; and the result of this attempt to solve a complicated and abstruse question of political economy by a theoretical rule, determining that a slave, as a producer of wealth, stands upon a precise equality with a freeman performing the same species of labor, was, that the Congress of 1776 were driven to the adoption of land as a measure of wealth, instead of the more convenient and practicable rule of numbers.[104] But the Articles of Confederation had not been in operation for two years, when it was found that the system of obtaining supplies for the general treasury by assessing quotas upon the States according to an estimate of their relative wealth, represented by the value of their lands, was entirely impracticable; that the value of land must constantly be a source of contention and dissatisfaction between the States; and that, if the mode of defraying the expenses of the Union by requisitions were adhered to, some simpler rule must be adopted. Accordingly, in 1783 the Congress were compelled to return to the rule of numbers; and it was in the effort to agree upon the ratio in which the slaves should enter into that rule, that the proportion of three fifths was fixed upon, as a compromise of different views, in the amendment then proposed to the Articles of Confederation.[105] Such had been the previous experience of the Union on the subject of taxation; and now, in 1787, when an effort was to be made to establish a government upon a popular representation of the States which had found it so difficult to agree upon a just and practicable rule for determining their proportions of the public burdens, the whole subject became still further complicated with the difficulties attending the adjustment of this new right of proportional representation. The maxim which would regulate it by the same ratio that is applied to the distribution of taxes, contained within itself a just principle; but it went no farther than to assert a principle of justice, and it left the subject of the rule itself surrounded by the same difficulties as before. The Southern States complained that their slaves, if counted as property for the purposes of taxation, were to be so counted upon a ratio left wholly to the discretion of Congress; and if counted as numbers, for the same purpose, that they ought not to be reckoned in their entire number. They professed their readiness to have representation and taxation regulated by the same rule, but they insisted on the security of a definite rule, to be established in the Constitution itself; and this security, they said, must embrace an admission of the slaves into the basis of representation, if they were to be included in the basis of direct taxation.[106] Accordingly, before the rule as to taxation had been determined, Randolph submitted a distinct proposition, which contemplated a census of the white inhabitants and of three fifths of all other persons, with a peremptory direction to Congress to arrange the representation accordingly. The Northern States, on the other hand, resisted the direct introduction of the slaves into the representation, as persons; and it was plain that, if they were to be treated as property, and the representation was to be regulated by a rule of wealth, their value as property must be compared with that of other species of personalty held in the same and in other States, and some principles for computing it must be ascertained. Upon such economical questions as these, the agreement of different minds, under the influence of different interests, was absolutely impossible. Thus the knot of these complicated difficulties could only be cut by the sword of compromise. In whatever direction a theoretical rule was applied,--whatever view was taken of the slave, as a person or as an article of property; as a productive laborer equally or less valuable to the State when compared with the freeman,--whatever principles were maintained upon the question whether numbers constitute a proper measure of the wealth of a community, and one that will work out the same result in communities where slavery exists, as well as where it is absent,--absolute truth, or what the whole country would receive as such, was unattainable. But an adjustment of the problem, founded on mutual conciliation and a desire to be just, was not impossible. The two objects to be accomplished were to avoid the offence that might be given to the Northern States by making the slaves in direct terms an ingredient in the rule of representation, and, on the other hand, to concede to the Southern States the right to have their representation enhanced by the same enumeration of their slaves that might be adopted for the purpose of apportioning direct taxation. These objects were effected by an arrangement proposed by Wilson. It consisted, first, in affirming the maxim that representation ought to be proportioned to direct taxation; and then, by directing a periodical census of the free inhabitants, and three fifths of all other persons, to be taken by the authority of the United States, and that the direct taxation should be apportioned among the States according to this census of persons. The principle was thus established, that, for the purpose of direct taxation, the number of inhabitants in each State should be assumed as the measure of its relative wealth; and that its right of representation should be regulated by the same measure; and as the slaves were to be admitted into the rule for taxation in the proportion of three fifths of their number only,--apparently upon the supposition that the labor of a slave is less valuable to the State than the labor of a freeman,--so they were in the same proportion only to enhance the representation. This expedient was adopted by the votes of a large majority of the States;[107] but since it had been moved as an amendment to the proposition previously accepted, which affirmed that the representation ought to be regulated by the combined rule of numbers and wealth, it appeared, when brought into that connection, to rest the representation of the slaveholding States in respect to the slaves, in part at least, upon the idea of property. To avoid all discrepancy in the application of the rule to the two subjects of representation and taxation, Governor Randolph proposed to strike the word "wealth" from the resolution; and this, having been done by a vote nearly unanimous,[108] left the enumeration of the slaves for both purposes an enumeration of persons, in less than their whole numbers; placing them in the rule for taxation, not as property and subjects of taxation, but as constituting part of an assumed measure of the wealth of a State, just as the free inhabitants constituted another part of the same measure, and placing them in the same ratio and in the same capacity in the rule for representation.[109] The basis of the House of Representatives having been thus agreed to, the remaining part of the report, which involved the basis of the Senate, was then taken up for consideration. Wilson, King, Madison, and Randolph still opposed the equality of votes in the Senate, upon the ground that the government was to act upon the people and not upon the States, and therefore the people, not the States, should be represented in every branch of it. But the whole plan of representation embraced in the amended report, including the equality of votes in the Senate, was adopted, by a bare majority, however, of the States present.[110] When this result was announced, Governor Randolph complained of its embarrassing effect on that part of the plan of a constitution which concerned the powers to be vested in the general government; all of which, he said, were predicated upon the idea of a proportionate representation of the States in both branches of the legislature. He desired an opportunity to modify the plan, by providing for certain cases to which the equality of votes should be confined; and in order to enable both parties to consult informally upon some expedient that would bring about a unanimity, he proposed an adjournment. On the following morning, we are told by Mr. Madison, the members opposed to an equality of votes in the Senate became convinced of the impolicy of risking an agreement of the States upon any plan of government by an inflexible opposition to this feature of the scheme proposed, and it was tacitly allowed to stand.[111] Great praise is due to the moderation of those who made this concession to the fears and jealousies of the smaller States. That it was felt by them to be a great concession, no one can doubt, who considers that the chief cause which had brought about this convention of the States was the inefficiency of the "federal" principle on which the former Union had been established. Looking back to all that had happened since the Confederation was formed,--to the repeated failures of the States to comply with the constitutional demands of the Congress, and to the entire impracticability of a system that had no true legislative basis, and could therefore exert no true legislative power,--we ought not to be surprised that the retention of the principle of an equal State representation in any part of the new government should have been resisted so strenuously and so long. That the final concession of this point was also a wise and fortunate determination, there can be no doubt. Those who made it probably did not foresee all its advantages, or comprehend all its manifold relations. They looked to it, in the first instance, as the means of securing the acceptance of the Constitution by all the States, and thus of preventing the evils of a partial confederacy. They probably did not at once anticipate the benefits to be derived from giving to a majority of the States a check upon the legislative power of a majority of the whole people of the United States. Complicated as this check is, it both recognizes and preserves the residuary sovereignty of the States; it enables them to hold the general government within its constitutional sphere of action; and it is in fact the only expedient that could have been successfully adopted, to preserve the State governments, and to avoid the otherwise inevitable alternative of conferring on the general government plenary legislative power upon all subjects. It is a part of the Constitution which it is vain to try by any standard of theory; for it was the result of a mere compromise of opposite theories and conflicting interests. Its best eulogium is to be found in its practical working, and in what it did to produce the acceptance of a constitution believed, at the time of its adoption, to have given an undue share of influence and power to the larger members of the confederacy.[112] NOTE ON THE POPULATION OF THE SLAVEHOLDING AND NON-SLAVEHOLDING STATES. Although, at the time of the formation of the Constitution, slavery had been expressly abolished in two of the States only (Massachusetts and New Hampshire), the framers of that instrument practically treated all but the five Southern States as if the institution had been already abolished within their limits, and counted all the colored persons therein, whether bond or free, as part of the free population; assuming that the eight Northern and Middle States would be free States, and that the five Southern States would continue to be slave States. This appears from the whole tenor of the debates, in which the line is constantly drawn, as between slaveholding and non-slaveholding States, so as to throw eight States upon the Northern and five upon the Southern side. I have found also, in a newspaper of that period (New York Daily Advertiser, February 5, 1788), the following "ESTIMATE OF THE POPULATION OF THE STATES MADE AND USED IN THE FEDERAL CONVENTION, ACCORDING TO THE MOST ACCURATE ACCOUNTS THEY COULD OBTAIN." New Hampshire, 102,000 Massachusetts, 360,000 Rhode Island, 58,000 Connecticut, 202,000 New York, 238,000 New Jersey, 138,000 Pennsylvania, 360,000 Delaware, 37,000 ---------1,495,000 Maryland, including three fifths of 80,000 negroes, 218,000 Virginia, " " 280,000 " 420,000 North Carolina, " " 60,000 " 200,000 South Carolina, " " 80,000 " 150,000 Georgia, " " 20,000 " 90,000 ---------1,078,000 The authenticity of this table is established by referring to a speech made by General Pinckney in the legislature of South Carolina, in which he introduced and quoted it at length. (Elliot's Debates, IV. 283.) From this it appears that the estimated population of the eight Northern and Middle States, adopted in the Convention, was 1,495,000; that of the five Southern States (including three fifths of an estimated number of negroes) was 1,078,000. Comparing this estimate with the results of the first census, it will be seen that the _total_ population of the eight Northern and Middle States exceeds the _federal_ population of the five Southern States, in the census of 1790, in about the same ratio as the former exceeds the latter in the estimate employed by the Convention. Thus in 1790 the _total_ population of the eight Northern and Middle States, including all slaves, was 1,845,595; the _federal_ population of the five Southern States, including three fifths of the slaves, was 1,540,048;--excess 305,547. In the estimate of 1787, the population allotted to the eight Northern and Middle States was 1,495,000; that allotted to the five Southern States, counting only three fifths of the estimated number of slaves, was 1,078,000;--excess in favor of the eight States, 417,000. This calculation shows, therefore, that, in estimating the population of the different States for the purpose of adjusting the first representation in Congress, the Convention applied the rule of three fifths of the slaves to the five Southern States only, and that as to the other eight States no discrimination was made between the different classes of their inhabitants. Other methods of comparing the estimate of 1787 with the census of 1790 will lead to the same conclusion. FOOTNOTES: [86] The committee consisted of Gerry, Ellsworth, Yates, Patterson, Franklin, Bedford, Martin, Mason, Davie, Rutledge, and Baldwin. [87] The committee was appointed on the 2d of July, and made their report on the 5th. The Convention in the interval transacted no business. [88] See further as to this exclusive power of the House, _post._ [89] Madison, Butler, Gouverneur Morris, and Wilson. [90] Five States voted to retain it, three voted against it, and three were divided. This was treated as an affirmative vote. Elliot, V. 255. [91] Connecticut, New York, New Jersey, Delaware, Maryland, North Carolina, _ay_ 6; Pennsylvania, Virginia, South Carolina, _no_,3; Massachusetts, Georgia, divided. Ibid. 285, 286. [92] Gouverneur Morris, Gorham, Randolph, Rutledge, and King. [93] They gave to New Hampshire, 2; Massachusetts, 7; Rhode Island, 1; Connecticut, 4; New York, 5; New Jersey, 3; Pennsylvania, 8; Delaware, 1; Maryland, 4; Virginia, 9; North Carolina, 5; South Carolina, 5; Georgia, 2. [94] Elliot, V. 287, 288. [95] This apportionment gave to New Hampshire, 3; Massachusetts, 8; Rhode Island, 1; Connecticut, 5; New York, 6; New Jersey, 4; Pennsylvania, 8; Delaware, 1; Maryland, 6; Virginia, 10; North Carolina, 5; South Carolina, 5; Georgia, 3. [96] See Mr. Gorham's explanation; Madison, Elliot, V. 288. [97] Sherman and Gorham. [98] Of North Carolina. [99] Massachusetts, Connecticut, New Jersey, Pennsylvania, Virginia, North Carolina, _ay_, 6; Delaware, Maryland, South Carolina, Georgia, _no_, 4. The votes of South Carolina and Georgia were given in the negative, because they desired that the blacks should be included in the census equally with the whites. For the same reason, as we shall see presently, those States voted against the other branch of the proposition, which would give but three fifths of the slaves. But upon what principle, unless it was from general opposition to all numerical representation, the State of Delaware should have voted with them on both of these features of the proposed census, is, I confess, to me inexplicable. [100] Connecticut, Virginia, North Carolina, Georgia, _ay_, 4; Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, _no_, 6. South Carolina voted in the negative, for a reason suggested in the previous note, _ante_, p. 153. [101] See the note on the population of the slaveholding and non-slaveholding States, at the end of this chapter. [102] See Mr. Jefferson's notes of this debate in the Congress of 1776, Works, Vol. I. pp. 26-30. John Adams's Works, Vol. II. pp. 496-498. [103] Samuel Chase of Maryland. [104] See _ante_, Vol. I. pp. 210-213. [105] See Mr. Madison's notes of the debate in the Congress of 1783, Elliot, V. 78-80. Journals of Congress, VIII. 188 (April 18, 1783). _Ante_, Vol. I. p. 213. [106] See the remarks of General Pinckney, Mr. Mason, Mr. Butler, and Governor Randolph. Elliot, V. 294-305. [107] Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, Georgia, _ay_, 6; New Jersey, Delaware, _no_, 2; Massachusetts, South Carolina, divided. [108] The only opposition was from Delaware, the vote of which was divided. [109] See the note at the end of this chapter. [110] Connecticut, New Jersey, Delaware, Maryland, North Carolina (Mr. Spaight, _no_), _ay_, 5; Pennsylvania, Virginia, South Carolina, Georgia, _no_, 4; Massachusetts divided (Mr. Gerry, Mr. Strong, _ay_, Mr. King, Mr. Gorham, _no_). The delegates of New York were all absent; Messrs. Yates and Lansing left the Convention on the 5th of July, after the principle of popular representation had been adopted. Colonel Hamilton was absent on private business. If the two former had been present, the vote of the State would doubtless have been given in favor of the report, on account of the basis which it gave to the Senate. [111] Elliot, V. 319. [112] Mr. Madison, who was to the last a strenuous opponent of the equality of votes in the Senate, candidly and truly stated its merits in the 62d number of the Federalist, as they had been disclosed to him by subsequent reflection. CHAPTER VIII. POWERS OF LEGISLATION.--CONSTITUTION AND CHOICE OF THE EXECUTIVE.--CONSTITUTION OF THE JUDICIARY.--ADMISSION OF NEW STATES.--COMPLETION OF THE ENGAGEMENTS OF CONGRESS.--GUARANTY OF REPUBLICAN CONSTITUTIONS.--OATH TO SUPPORT THE CONSTITUTION.--RATIFICATION.--NUMBER OF SENATORS.--QUALIFICATIONS FOR OFFICE.--SEAT OF GOVERNMENT. Of the remaining subjects comprehended in the report of the committee of the whole, it will only be necessary here to make a brief statement of the action of the Convention, before we arrive at the stage at which the principles agreed upon were sent to a committee of detail to be cast into the forms of a Constitution. Recurring to the sixth resolution in the report of the committee of the whole, an addition was made to its provisions, by inserting a power to legislate in all cases for the general interests of the Union; and for the clause giving the legislature power to negative certain laws of the States, the principle was substituted of making the legislative acts and treaties of the United States the supreme law of the land, and binding upon the judiciaries of the several States. The constitution of the executive department had been provided for, by declaring that it should consist of a single person, to be chosen by the national legislature for a period of seven years, and to be ineligible a second time; to have power to carry into execution the national laws, to appoint to offices not otherwise provided for, to be removable on impeachment, and to be paid for his services by a fixed stipend out of the national treasury. The mode of constituting this department did not, as in the case of the legislative, present the question touching the nature of the government described by the terms "federal" and "national." It was entirely consistent with either plan,--with that of a union formed by the States in their political capacities, or with one formed by the people of the States, or with one partaking of both characters,--that the executive should be chosen mediately or immediately by the people, or by the legislatures or executives of the States, or by the national legislature. The same contest, therefore, between the friends and opponents of a national system was not obliged to be renewed upon this department. So long as the form to be given to the institution was consistent with a system of republican government,--so long as it provided an elective magistrate, not appointed by an oligarchy, and holding by a responsible and defeasible tenure of office,--whether he should be chosen by the people of the States, or by some of their other public servants, would not affect the principles on which the legislative power of the government was to be founded. But this very latitude of choice, as to the mode of appointment, and the duration of office, opened the greatest diversity of opinion. In the earlier stages of the formation of a plan of government of three distinct departments, the idea of an election of the executive by the people at large was scarcely entertained at all. It was not supposed to be practicable for the people of the different States to make an intelligent and wise choice of the kind of magistrate then contemplated,--a magistrate whose chief function was to be that of an executive agent of the legislative will. Regarding the office mainly in this light, without having yet had occasion to look at it closely as the source of appointments to other offices and as the depositary of a check on the legislative power itself, the framers of the plan now under consideration had proposed to vest the appointment in the legislature, as the readiest mode of obtaining a suitable incumbent, without the tumults and risks of a popular election. But the power of appointment to other offices and the revisionary check on legislation were no sooner annexed to the executive office, than it was perceived that some provision must be made for obviating the effects of its dependence on the legislative branch. An executive chosen by the legislature must be to a great extent the creature of those from whom his appointment was derived. To counteract this manifestly great inconvenience and impropriety, the incumbent of the executive office was to be ineligible a second time. This, however, was to encounter one inconvenience by another, since the more faithfully and successfully the duties of the station might be discharged, the stronger would be the reasons for continuing the individual in office. The ineligibility was accordingly stricken out. Hence it was, that a variety of propositions concerning the length of the term of office were attempted, as expedients to counteract the evils of an election by the legislature of a magistrate who was to be re-eligible; and among them was one which contemplated "good behavior" as the sole tenure of the office.[113] This proposition was much considered; it received the votes of four States out of ten;[114] and it is not at all improbable that it would have received a much larger support, if the supposed disadvantages of an election by the people had led a majority of the States finally to retain the mode of an election by the national legislature.[115] But in consequence of the impossibility of agreeing upon a proper length of term for an executive that was to be chosen by the legislature, the majority of the Convention went back to the plan of making the incumbent ineligible a second time, which implied that some definite term was to be adopted. This again compelled them to consider in what other mode the executive could be appointed, so as to avoid the evil of subjecting the office to the unrestrained influence of the legislature, and to remove the restriction upon the eligibility of the officer for a second term. In an election of the chief executive magistrate by the people, voting directly, the right of suffrage would have to be confined to the free inhabitants of the several States. But even with respect to the free inhabitants, the right of suffrage was differently regulated in the different States; and there must either be a uniform and special rule established as to the qualification of voters for the executive of the United States, or the rule of suffrage of each State must be adopted for this as well as other national elections. In the Northern States, too, the right of suffrage was much more diffused than in the Southern, and the question must arise, as it had arisen in the construction of the representative system, whether the States were to possess an influence in the choice of a chief magistrate for the Union in proportion to the number of their inhabitants, or only in proportion to their qualified voters, or their free inhabitants. The substitution of electors would obviate these difficulties, by affording the means of determining the precise weight in the election that should be allotted to each State, without attempting to prescribe a uniform rule of suffrage in the primary elections, and without being obliged to settle the discrepancies between the election laws of the States. They furnished, also, the means of removing the election from the direct action of the people, by confiding the ultimate selection to a body of men, to be chosen for the express purpose of exercising a real choice among the eminent individuals who might be thought fit for the station. But the mode of choice was complicated with the other questions of re-eligibility, and especially with that of impeachment. If appointed by electors, there would be danger of their being corrupted by the person in office, if he were eligible a second time, or by a candidate who had not filled the station. Hence there would be a propriety in making the executive subject to impeachment while in office. If chosen by the legislature, it seemed to be generally agreed, that the executive ought not to be eligible a second time; but whether he ought to be subject to impeachment, and by what tribunal, was a subject on which there were great differences of opinion. The consequence of this great diversity of views was, that the plan embraced in the ninth resolution of the committee of the whole was retained and sent to the committee of detail. With respect to the judiciary, several important changes were made in the plan of the committee of the whole. The prohibition against any increase of salary of the individuals holding the office was stricken out, and the restriction was made applicable only to a diminution of the salary. The cognizance of impeachments of national officers was taken from their jurisdiction, and the principle was adopted which extended that jurisdiction to "all cases arising under the national laws, and to such other questions as may involve the national peace and harmony." The power to appoint inferior tribunals was confirmed to the national legislature. The fourteenth resolution, providing for the admission of new States, was unanimously agreed to. The fifteenth resolution, providing for the continuance of Congress and for the completion of their engagements, was rejected. The principle of the sixteenth resolution, which provided a guaranty by the United States of the institutions of the States, was essentially modified. In the place of a guaranty applicable both to a republican constitution and the "existing laws" of a State, the declaration was adopted, "that a republican form of government shall be guaranteed to each State, and that each State shall be protected against foreign and domestic violence."[116] The seventeenth resolution, that provision ought to be made for future amendments, was adopted without debate.[117] The eighteenth resolution, requiring the legislative, executive, and judicial officers of the States to be bound by oath to support the Articles of Union, was then extended to include the officers of the national government. The next subject that occurred in the order of the resolutions was that of the proposed ratification of the new system by the people of the States, acting through representative bodies to be expressly chosen for this purpose, instead of referring it for adoption to the legislatures of the States. As this is a subject on which very different theories are maintained, arising partly from different views of the historical facts, and as there are very different degrees of importance attached to the mode in which the framers of the Constitution provided for its establishment, it will be convenient here to state the position in which they found themselves at this period in their deliberations, the purposes which they had in view, and the steps which they took to accomplish their objects. They were engaged in preparing a new system of government, and in providing for its introduction. When they were first called together, the general purpose of the States may seem to have been confined to a mode of introducing changes in the fundamental compact of the Union, such as was provided for by the Articles of Confederation. But the Convention had found itself obliged, from the sheer necessities of the country, to go far beyond the Confederation, and to make a total change in the principle of the government. It became, therefore, necessary for them to provide a mode of enacting or establishing this change, which would commend itself to the confidence of the people, by its conformity with their previous ideas of constitutional action, and be at the same time consonant with reason and truth. Again, there was a peculiarity in their situation, which rendered it quite different from that of the delegates of a people who had abolished a pre-existing government, and had assembled a representative body to form a new one. The Confederation still existed. As a compact between sovereign States, providing for a special mode in which alterations of its articles were to be made, and limiting their adoption to the case of unanimous consent, it was still in force. The States, in their political capacities as sovereign communities, were still the parties to the compact, and their legislatures alone were clothed with the authority to change its provisions. It was necessary, therefore, to encounter and to solve the question, whether a new government, framed upon a principle unlike that of the Confederation, and embracing an entirely different legislative authority, could be established in the mode prescribed by the existing compact of the States; and if it could not, whether there existed any power, apart from the State governments, by which it could be established and be clothed with a paramount authority, resting on a basis of principle, and not upon force, fiction, or fraud. In the early formation of the Union that took place before the Declaration of Independence, questions of the constitutional power of the Colonies which became members of it could scarcely arise at all, since those who undertook to act for and to represent the people of each Colony were proceeding upon revolutionary principles and rights. But before the Articles of Confederation, which constituted the first union of the States upon ascertained and settled principles of government, had been agreed upon, many of the State constitutions were formed; and when those Articles were entered into, the State governments represented the sovereignty of distinct political communities, and were entirely competent to form such a confederacy as was then established by their joint and unanimous consent. All the obligations which the Confederation imposed upon its members rested upon the States in their corporate capacities; and the government of each of them was competent to assume, for the State, such obligations, and to enter into such stipulations. In the same way, it was competent to the State governments to make alterations in the Articles of Confederation, by unanimous consent, so long as those alterations did not change the fundamental principle of the Union, which was that of a system of legislation for the States in their corporate capacities. But when it was proposed to reverse this principle, and to create a government, external to the governments of the States, clothed with authority to exact obedience from the individual inhabitants of the States, and to act upon them directly, the question might well arise, whether the State governments were competent to cede such an authority over their constituents, and whether it could be granted by anybody but the people themselves. It might, it is true, be said, that their constitutions made the governments of the States the depositaries of the sovereignty and political powers of the people inhabiting those States. But if this was true, in a general sense, for the purpose of exercising the political powers of the people, it was not true, in any sense, for the purpose of granting away those powers to other agents. The latter could only be done by those who had constituted the first class of agents, and who were able to say that certain portions of the authority with which they had been clothed should be withdrawn, and be revested in another class. Undoubtedly it would have been possible to have given the Constitution of the United States a theoretical adoption by the people of the States, by committing its acceptance to the State legislatures, relying on the acquiescence of the people in their acts. But there were two objections to this course. The one was, that the legislatures were believed less likely than the people to favor the establishment of such a government as that now proposed. The other was, that the kind of legal fiction by which the presumed assent of the people must be reached, in this mode, would leave room for doubts and disputes as to the real basis and authority of the government, which ought, if possible, to be avoided. Another difficulty of a kindred nature rendered it equally inexpedient to rely on the sanction of the State legislatures. The States, in their corporate capacities, and through the agency of their respective governments, were parties to a federal system, which they had stipulated with each other should be changed only by unanimous consent. The Constitution, which was now in the process of formation, was a system designed for the acceptance of the people of all the States, if the assent of all could be obtained; but it was also designed for the acceptance of a less number than the whole of the States, in case of a refusal of some of them; and it was at this time highly probable that at least two of them would not adopt it. Rhode Island had never been represented in the Convention; and the whole course of her past history, with reference to enlargements of the powers of the Union, made it quite improbable that she would ratify such a plan of government as was now to be presented to her. The State of New York had, through her delegates, taken part in the proceedings, until the final decision, which introduced into the government a system of popular representation; but two of those delegates, entirely dissatisfied with that decision, had withdrawn from the Convention, and had gone home to prepare the State for the rejection of the scheme.[118] The previous conduct of the State had made it not at all unlikely that their efforts would be successful. Nor were there wanting other indications of the most serious dissatisfaction, on the part of men of great influence in some of the other States. Unanimity had already become hopeless, if not impracticable; and it was necessary, therefore, to look forward to the event of an adoption of the system by a less number than the whole of the States, and to make it practicable for a less number to form the new Union for which it provided. This could only be done by presenting it for ratification to the people of each State, who possessed authority to withdraw the State government from the Confederation, and to enter into new relations with the people of such other States as might also withdraw from the old and accept the new system. There was another and more special reason for resorting to the direct sanction of the people of the States, which has already been referred to in general terms, but for which we must look still more closely into the nature of the system proposed. In that system, the legislative authority was to reside in the concurrent action of a majority of the people and a majority of the States. How could the State government of Delaware, for example, confer upon a majority of the representatives of the people of all the States, and a majority of the representatives of all the States, that might adopt the new Constitution, power to bind the people of Delaware by a legislative act, to which their own representatives might have refused their assent? The State government was appointed and established for the purpose of binding the people of the State by legislative acts of their own servants and immediate representatives; but not for the purpose of consenting that legislative power over the people of that State should be exercised by agents not delegated by themselves. Yet such a consent was involved in the new system now to be proposed, and was, in some way--by some safe and competent method--to be obtained. A legislative power was to be created by the assembling in one branch of the representatives of the people of all the States, in proportion to their numbers, and in the other branch by assembling an equal number of representatives of each State, without regard to its numbers of people. The authority of law, upon all subjects that might be committed to this legislative power, was to attend the acts of concurring majorities in both branches, even against the separate and adverse will of the minority. It was impossible to rest this authority upon any other basis than that of the ratification of the system by the people of each State, to be given by themselves in primary assemblies, or by delegates expressly chosen in such assemblies, and appointed to give it, if they should see fit. A system founded on the consent of the legislatures would be a treaty between sovereign States; a system founded on the consent of the people would be a constitution of government, ordained by those who hold and exercise all political power.[119] There were not wanting, however, strong advocates of a reference to the State legislatures; and the votes of three of the States were at first given for that mode of ratifying the Constitution; but the other plan was finally adopted with nearly unanimous consent.[120] Still, the resolution under consideration contained a feature which wisely provided for the assent of the existing Congress to the changes that were to be made by the establishment of the new system. It proposed that the plan of the new Constitution should be first submitted to Congress for its approbation, and that the legislatures of the States should then recommend to the people to institute assemblies to consider and decide on its adoption. These steps were to be taken, in pursuance of the course marked out when the Convention was called. The resolution of Congress, which recommended the Convention, required that the alterations which it might propose should be "agreed to in Congress and confirmed by the States"; and such was the tenor of the instructions given to the delegates of most of the States. This direction would be substantially complied with, if the legislatures, on receiving and considering the system, should recommend to the people to appoint representative bodies to consider and decide on its adoption, and the people should so adopt and ratify it.[121] The topics covered by the report of the committee of the whole had thus been passed upon in the Convention, and the outline of the Constitution had been framed. There remained only three subjects on which it would be necessary to act in order to provide for a complete scheme of government. It was necessary to determine the number of senators to which each State should be entitled; to ascertain the qualifications of members of the government; and to determine at what place the government should be seated. The number of senators was not agreed upon at the time when the principle of an equal representation of the States in the Senate was adopted; and it had not been determined in what method they were to vote. It was now settled that the Senate should consist of two members from each branch, and that they should vote _per capita_. To this arrangement one State only dissented. The vote of Maryland was given against it, through the influence of Luther Martin, who considered this method of voting a departure from the idea of the States being represented in the Senate. But this objection was obviously unsound; for although, by this method of voting, the influence of a State _may_ be divided, its members have the _power_ to concur, and to make the vote of the State more effectual than it would be if it had only a single suffrage. The subject of the qualifications to be required of the executive, the judiciary, and the members of both branches of the legislature, went to the committee of detail in a form which was subsequently modified in a very important particular. It was at first proposed,[122] that landed property, as well as citizenship in the United States, should be embraced in the qualifications. But there were solid objections to this requirement, founded on the circumstances of the country and the nature of a republican constitution. So far as the people of the United States could be said to be divided into classes, the principal divisions related to the three occupations of agriculture, commerce, and manufactures of all kinds, including in the latter all who exercised the mechanic arts. As a general rule, it was supposed at that time to be true, that the commercial and manufacturing classes held very little landed property; and that although they were much less numerous than the agricultural class, yet that they were likely to increase in a far greater ratio than they had hitherto. Practically, therefore, to require a qualification of landed property, would be to give the offices of the general government to the agricultural interest. These considerations led the Convention, by a nearly unanimous vote, to reject the proposition for a landed qualification.[123] Very serious doubts were also entertained, whether, in constructing a republican constitution, it was proper to pay so much deference to distinctions of wealth as would be implied by the adoption of any property qualification for office. There are two methods in which the interests of property may be secured, in the organization of a representative government. It may be required as a qualification, either of the elector or the elected, that the individual shall possess a certain amount of property. But it seems scarcely consistent with the spirit of a republican constitution, that this should be made a qualification for holding office, although it may be quite proper to require some degree of property, or its equivalent evidence of moral fitness, as a qualification for the right of choosing to office. The solid reason for a distinction is, that, in order to have a property qualification for office at all efficient, or even of any perceptible operation, it must be made so large that it will tend to exclude persons of real talent, or even the highest capacity for the public service. Whereas, a property qualification may be applied to the exercise of the elective franchise, by requiring so small an amount that it will practically exclude but few who possess the moral requisites for its intelligent and honest use; and even to this extent the operation of such a rule may be, as it is in some well-governed communities, greatly relieved, by substituting for the positive possession of any amount of property, that species of evidence of moral fitness for the right of voting that is implied by the capacity to pay a very small portion of the public burdens.[124] At the present stage, however, of the formation of the Constitution of the United States, the opinions of a majority of the States were in favor of a property qualification for office, as well as a requirement of citizenship; and the committee of detail were instructed accordingly, with, the dissent of only three of the States.[125] But, as we shall afterwards find, another view of the subject finally prevailed.[126] No definite action was had, at this stage, upon the subject of a seat of the national government; but it was almost unanimously agreed to be the general sense of the country, that it ought not to be placed at the seat of any State government, or in any large commercial city; and that provision ought to be made by Congress, as speedily as possible, for the establishment of a national seat and the erection of suitable public buildings. Such was the character of the system sent to a committee of detail, to be put into the form of a constitution.[127] Before it was sent to them, however, a notice was given by an eminent Southern member, which looked to the introduction of provisions not yet contemplated or discussed. According to Mr. Madison's minutes, General Pinckney rose and reminded the Convention, that, if the committee should fail to insert some security to the Southern States against an emancipation of slaves, and taxes on exports, he should be bound by duty to his State to vote against their report.[128] The resolutions as adopted by the Convention, together with the propositions offered by Mr. Charles Pinckney on the 29th of May, and those offered by Mr. Patterson on the 15th of June, were then referred to a committee of detail.[129] FOOTNOTES: [113] Moved by Dr. M'Clurg, one of the Virginia delegates, and the person appointed in the place of Patrick Henry, who declined to attend the Convention. [114] New Jersey, Pennsylvania, Delaware, Virginia, _ay_, 4; Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, _no_, 6. [115] I understand Mr. Madison to have voted for this proposition, and that his view of it was, that it might be a necessary expedient to prevent a dangerous union of the legislative and executive departments. He said that the propriety of the plan of an executive during good behavior would depend on the practicability of instituting a tribunal for impeachments, as certain and as adequate in the case of the executive as in the case of the judges. His remarks, of course, were predicated upon the idea of a final necessity for retaining the choice of the executive by the legislature. In a note to his "Debates," appended to the vote on this question, it is said: "This vote is not to be considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to alarm those attached to a dependence of the executive on the legislature, and thereby to facilitate some final arrangement of a contrary tendency. The avowed friends of an executive 'during good behavior' were not more than three or four, nor is it certain they would have adhered to such a tenure." (Madison, Elliot, V. 327.) By "the avowed friends of an executive during good behavior," I understand Mr. Madison to mean those who would have preferred that tenure, under all forms and modes of election. I can trace in the debates no evidence that any other person except Gouverneur Morris was indifferent to the mode in which the executive should be chosen, provided he held his place by this tenure. Whether Hamilton held this opinion, and adhered to it throughout, is a disputed point. In a letter to Timothy Pickering, written in 1803, he says that his final opinion was against an executive during good behavior, "on account of the increased danger to the public tranquillity incident to the election of a magistrate of this degree of permanency." In proof of this view of the subject, he remarks: "In the plan of a constitution which I drew up while the Convention was sitting, and which I communicated to Mr. Madison about the close of it, perhaps a day or two after, the office of President has no longer duration than for three years." (Niles's Register, November 7, 1812.) In this he was probably mistaken. (See Hamilton's Works, II. 401. Madison, Elliot, V. 584.) [116] _Ante_, Chap. V. [117] At this point (July 23) John Langdon and Nicholas Gilman took their seats as delegates from New Hampshire. [118] See the letter of Messrs. Yates and Lansing to Governor Clinton, Elliot, I. 480. [119] There seems to be a sound distinction between the two, which was pointed out by Mr. Madison. He said that "he considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a _league_, or treaty, and a _constitution_. The former, in point of _moral obligation_, might be as inviolable as the latter. In point of _political operation_, there were two important distinctions in favor of the latter. First, a [State] law violating a treaty ratified by a pre-existing [State] law might be respected by the judges as a law, though an unwise or perfidious one. A [State] law violating a constitution established by the people themselves would be considered by the judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties was, that a breach of any one article by any of the parties freed the other parties from their engagements. In the case of a union of people under one constitution, the nature of the pact had always been understood to exclude such an interpretation." Elliot, V. 355, 356. [120] Connecticut, Delaware, and Maryland voted for an amendment to the original resolution, which, if adopted, would have submitted the Constitution to the State legislatures. The resolution to refer it to assemblies chosen for the purpose by the people, was subsequently adopted, with the dissent of one State only, Delaware. [121] For the history of the proceedings relating to the institution of the national Convention, see _Ante_, Vol. I. Book III. Chap. VI. [122] By Mason. [123] Maryland alone voted to retain it. [124] As in the State of Massachusetts; where the sole money qualification required of a voter is the payment of an annual poll-tax of $1.25, or about five shillings _sterling_. [125] Connecticut, Pennsylvania, and Delaware. [126] See the title "Qualifications" in the Index. [127] The committee of detail, appointed July 24, consisted of Messrs. Rutledge, Randolph, Gorham, Ellsworth, and Wilson. Elliot, V. 357. [128] By a security against an emancipation of slaves, General Pinckney meant some provision for their extradition in cases of escape into the free States. This is apparent from the history of the extradition clause; and it is upon the notice thus given by him, and the action had upon this clause, that the statement often made, which assumes that the Constitution could not have been established without some provision on this subject--as well as upon general reasoning from the circumstances of the case--rests for its proof. See as to the origin and history of the extradition clause, _post_, p. 450. [129] The resolutions, as referred, were as follows:-- "1. _Resolved_, That the government of the United States ought to consist of a supreme legislative, judiciary, and executive. "2. _Resolved_, That the legislature consist of two branches. "3. _Resolved_, That the members of the first branch of the legislature ought to be elected by the people of the several States for the term of two years; to be paid out of the public treasury; to receive an adequate compensation for their services; to be of the age of twenty-five years at least; to be ineligible to, and incapable of holding, any office under the authority of the United States, (except those peculiarly belonging to the functions of the first branch,) during the term of service of the first branch. "4. _Resolved_, That the members of the second branch of the legislature of the United States ought to be chosen by the individual legislatures; to be of the age of thirty years at least; to hold their offices for six years, one third to go out biennially; to receive a compensation for the devotion of their time to the public service; to be ineligible to, and incapable of holding, any office under the authority of the United States, (except those peculiarly belonging to the functions of the second branch,) during the term for which they are elected, and for one year thereafter. "5. _Resolved_, that each branch ought to possess the right of originating acts. "6. _Resolved_, That the national legislature ought to possess the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation. "7. _Resolved_, That the legislative acts of the United States, made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their citizens and inhabitants; and that the judiciaries of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding. "8. _Resolved_, That, in the original formation of the legislature of the United States, the first branch thereof shall consist of sixty-five members; of which number, New Hampshire shall send three; Massachusetts, eight; Rhode Island, one; Connecticut, five; New York, six; New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland, six; Virginia, ten; North Carolina, five; South Carolina, five; Georgia, three. But as the present situation of the States may probably alter in the number of their inhabitants, the legislature of the United States shall be authorized, from time to time, to apportion the number of representatives; and in case any of the States shall hereafter be divided, or enlarged by addition of territory, or any two or more States united, or any new States created within the limits of the United States, the legislature of the United States shall possess authority to regulate the number of representatives, in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned, namely: Provided always, that representation ought to be proportioned to direct taxation. And in order to ascertain the alteration in the direct taxation which may be required from time to time by the changes in the relative circumstances of the States,-- "9. _Resolved_, That a census be taken within six years from the first meeting of the legislature of the United States, and once within the term of every ten years afterwards, of all the inhabitants of the United States, in the manner and according to the ratio recommended by Congress in their resolution of the 18th of April, 1783; and that the legislature of the United States shall proportion the direct taxation accordingly. "10. _Resolved_, That all bills for raising or appropriating money, and for fixing the salaries of the officers of the government of the United States, shall originate in the first branch of the legislature of the United States, and shall not be altered or amended by the second branch; and that no money shall be drawn from the public treasury, but in pursuance of appropriations to be originated by the first branch. "11. _Resolved_, That, in the second branch of the legislature of the United States, each State shall have an equal vote. "12. _Resolved_, That a national executive be instituted, to consist of a single person; to be chosen by the national legislature, for the term of seven years; to be ineligible a second time; with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be removable on impeachment, and conviction of malepractice or neglect of duty; to receive a fixed compensation for the devotion of his time to the public service, to be paid out of the public treasury. "13. _Resolved_, That the national executive shall have a right to negative any legislative act; which shall not be afterwards passed, unless by two third parts of each branch of the national legislature. "14. _Resolved_, That a national judiciary be established, to consist of one supreme tribunal, the judges of which shall be appointed by the second branch of the national legislature; to hold their offices during good behavior; to receive punctually, at stated times, a fixed compensation for their services, in which no diminution shall be made so as to affect the persons actually in office at the time of such diminution. "15. _Resolved_, That the national legislature be empowered to appoint inferior tribunals. "16. _Resolved_, That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature; and to such other questions as involve the national peace and harmony. "17. _Resolved_, That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole. "18. _Resolved_, That a republican form of government shall be guaranteed to each State; and that each State shall be protected against foreign and domestic violence. "19. _Resolved_, That provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary. "20. _Resolved_, That the legislative, executive, and judiciary powers, within the several States, and of the national government, ought to be bound, by oath, to support the Articles of Union. "21. _Resolved_, That the amendments which shall be offered to the Confederation by the Convention ought, at a proper time or times, after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon. "22. _Resolved_, That the representation in the second branch of the legislature of the United States shall consist of two members from each State, who shall vote _per capita_. "23. _Resolved_, That it be an instruction to the committee to whom were referred the proceedings of the Convention for the establishment of a national government, to receive a clause, or clauses, requiring certain qualifications of property and citizenship in the United States, for the executive, the judiciary, and the members of both branches of the legislature of the United States." CHAPTER IX. REPORT OF THE COMMITTEE OF DETAIL.--CONSTRUCTION OF THE LEGISLATURE.--TIME AND PLACE OF ITS MEETING. Having now reached that stage in the process of framing the Constitution at which certain principles were confided to a committee of detail, the reader will now have an opportunity to observe the farther development and application of those principles, the mode in which certain chasms in the system were supplied, and the final arrangements which produced the complete instrument that was submitted to the people of the United States for their adoption. Great power was necessarily confided to a committee, to whom was intrusted the first choice of means and of terms that were to give practical effect to the principles embraced in the resolutions of the Convention. There might be a substantial compliance with the intentions previously indicated by the debates and votes of the Convention, and at the same time the mode in which those intentions should be carried out by the committee might require a new consideration of the subjects involved. Hence it is important to pursue the growth of the Constitution through the entire proceedings. The committee of detail presented their report on the 6th of August, in the shape of a Constitution divided into three-and-twenty Articles. It is not my purpose to examine this instrument in the precise order of its various provisions, or to describe all the discussions which took place upon its minute details. It is more consonant with the general purpose of this history, to group together the different features of the Constitution which relate to the structure and powers of the different departments and to the fundamental purposes of the new government.[130] In accordance with the previous decisions of the Convention, the committee of detail had provided that the legislative power of the United States should be vested in a Congress, to consist of two branches, a House of Representatives and a Senate, each of which should have a negative on the other. But as to the persons by whom the members of the national legislature were to be appointed, no decision had been made in the Convention, excepting that the members of the House were to be chosen by the people of the States, and the members of the Senate by their legislatures. Nothing had been settled respecting the qualifications of the electors of representatives; nor had the qualifications of the members of either branch been determined.[131] Two great questions, therefore, remained open; first, with what class of persons was the election of members of the popular branch of the legislature to be lodged; secondly, what persons were to be eligible to that and to the other branch. In substance, these questions resolved themselves into the inquiry, in whom was the power of governing America to be vested; for it is to be remembered that, according to a decision of the Convention not yet reversed, the national executive was to be chosen by the national legislature. So far as the people of the United States had evinced any distinct purpose, at the time when this Convention was assembled, it appeared to be well settled that the new system of government, whatever else it might be, should be republican in its form and spirit. When the States had assembled in Convention, it became the result of a necessary compromise between them, that the appointment of one branch of the legislature should be vested in the people of the several States. But who were to be regarded as the people of a State, for this purpose, was a question of great magnitude, now to be considered. The situation of the country, in reference to this as well as to many other important questions, was peculiar. The streams of emigration, which began to flow into it from Europe at the first settlement of the different Colonies, had been interrupted only by the war of the Revolution. On the return of peace, the tide of emigration again began to set towards the new States, which had risen into independent existence on the western shores of the Atlantic by a struggle for freedom that had attracted the attention of the whole civilized world; and when the Constitution of the United States was about to be framed, large and various classes of individuals in the different countries of Europe were eagerly watching the result of the experiment. It appeared quite certain that great accessions of population would follow the establishment of free institutions in America, if they should be framed in a liberal and comprehensive spirit. It became necessary, therefore, to meet and provide for the presence in the country of great masses of persons not born upon the soil, who had not participated in the efforts by which its freedom had been acquired, and who would bring with them widely differing degrees of intelligence and of fitness to take part in the administration of a free government. The place that was to be assigned to these persons in the political system of the country was a subject of much solicitude to its best and most thoughtful statesmen. On the one hand, all were aware that there existed among the native populations of the States a very strong American feeling, engendered by the war, and by the circumstances attending its commencement, its progress, and its results. It was a war begun and prosecuted for the express purpose of obtaining and securing, for the people who undertook it, the right of self-government. It necessarily created a great jealousy of foreign influence, whether exerted by governments or individuals, and a strong fear that individuals would be made the agents of governments in the exercise of such influence. The political situation of the country under the Confederation had increased rather than diminished these apprehensions. The relations of the States with each other and with foreign nations, under a system which admitted of no efficient national legislation binding upon all alike, afforded, or were believed to afford, means by which the policy of other countries could operate on our interests with irresistible force. There was, therefore, among the people of the United States, and among their statesmen who were intrusted with the formation of the Constitution, a firmly settled determination, that the institutions and legislation of the country should be effectually guarded against foreign control or interference. On the other hand, it was extremely important that nothing should be done to prevent the immigration from Europe of any classes of men who were likely to become useful citizens. The States which had most encouraged such immigration had advanced most rapidly in population, in agriculture, and the arts. There were, too, already in the country many persons of foreign birth, who had thoroughly identified themselves with its interests and its fate, who had fought in its battles, or contributed of their means to the cause of its freedom; and some of these men were at this very period high in the councils of the nation, and even occupied places of great importance in the Convention itself.[132] They had been made citizens of the States in which they resided, by the State power of naturalization; and they were in every important sense Americans. It was impossible, therefore, to adopt a rule that would confine the elective franchise, or the right to be elected to office, to the native citizens of the States. The States themselves had not done this; and the institutions of the United States could not rest on a narrower basis than the institutions of the States. Another difficulty which attended the adjustment of the right of suffrage grew out of the widely differing qualifications annexed to that right under the State constitutions, and the consequent dissatisfaction that must follow any effort to establish distinct or special qualifications under the national Constitution. In some of the States, the right of voting was confined to "freeholders"; in others,--and by far the greater number,--it was extended beyond the holders of landed property, and included many other classes of the adult male population; while in a few, it embraced every male citizen of full age who was raised at all above the level of the pauper by the smallest evidence of contribution to the public burdens. The consequence, therefore, of adopting any separate system of qualifications for the right of voting under the Constitution of the United States would have been, that, in some of the States, there would be persons capable of voting for the highest State officers, and yet not permitted to vote for any officer of the United States; and that in the other States persons not admitted to the exercise of the right under the State constitution might have enjoyed it in national elections. This embarrassment, however, did not extend to the qualifications which it might be thought necessary to establish for the right of being elected to office under the general government. As the State and the national governments were to be distinct systems, and the officers of each were to exercise very different functions, it was both practicable and expedient for the Constitution of the United States to define the persons who should be eligible to the offices which it created. At the same time, in relation to both of these rights--that of electing and that of being elected to national offices--it was highly necessary that the national authority, either by direct provision of the Constitution, or by a legislative power to be exercised under it, should determine the period when the rights of citizenship could be acquired by persons of foreign birth. From the first establishment of the State governments down to the present period, those governments had possessed the power of naturalization. Their rules for the admission of foreigners to the privileges of citizenship were extremely unlike; and if the power of prescribing the rule were to be left to them, and the Constitution of the United States were to adopt the qualifications of voters fixed by the laws of the States, or were to be silent with respect to the qualifications of its own officers, the rights both of electing and of being elected to national office would, in respect to citizenship, be regulated by no uniform principle. If, therefore, the right of voting for any class of federal officers were to be in each State the same as that given by the State laws for the election of any class of State officers, it was quite essential that the States should surrender to the general government the power to determine, as to persons of foreign birth, what period of residence in the country should be required for the rights of citizenship. It was equally necessary that the national government should possess this power, if it was intended that citizenship should be regarded at all in the selection of those who were to fill the national offices. The committee of detail, after a review of all these considerations, presented a scheme that was well adapted to meet the difficulties of the case. They proposed that the same persons who, by the laws of the several States, were admitted to vote for members of the most numerous branch of their own legislatures, should have the right to vote for the representatives in Congress. The adoption of this principle avoided the necessity of disfranchising any portion of the people of a State by a system of qualifications unknown to their laws. As the States were the best judges of the circumstances and temper of their own people, it was certainly best to conciliate them to the support of the new Constitution by this concession. It was possible, indeed, but not very probable, that they might admit foreigners to the right of voting without the previous qualification of citizenship. It was possible, too, that they might establish universal suffrage in its most unrestricted sense. But against all these evils there existed one great security; namely, that the mischiefs of an absolutely free suffrage would be felt most severely by themselves in their domestic concerns; and against the special danger to be apprehended from the indiscriminate admission of foreigners to the right of voting, another feature of the proposed plan gave the national legislature power to withhold from persons of foreign birth the privileges of general citizenship, although a State might confer upon them the power of voting without previous naturalization. This part of the scheme consisted in the transfer of the power of naturalization to the general government; a power that was necessarily made exclusive, by being made a power to establish a _uniform_ rule on the subject. These provisions were not only necessary in the actual situation of the States, but they were also in harmony with the great purpose of the representative system that had been agreed upon as the basis of one branch of the legislative power. In that branch the people of each State were to be represented; but they were to remain the people of a distinct community, whose modes of exercising the right of self-government would be peculiar to themselves; and that would obviously be the most successful representation of such a people in a national assembly, which most conformed itself to their habits and customs in the organization of their own legislative bodies. Accordingly, although very strenuous efforts were made to introduce into the Constitution of the United States particular theories with regard to popular suffrage,--some of the members being in favor of one restriction and some of another,--the rule which referred the right in each State to its domestic law was sustained by a large majority of the Convention. But the power that was given, by unanimous consent, over the subject of naturalization, shows the strong purpose that was entertained of vesting in the national authority an efficient practical control over the States in respect to the political rights to be conceded to persons not natives of the country.[133] As we have already seen, the committee of detail had been instructed to report qualifications of property and citizenship for the members of every department of the government. But they found the subject so embarrassing, that they contented themselves with providing that the legislature of the United States should have authority to establish such uniform qualifications for the members of each house, with regard to property, as they might deem expedient.[134] They introduced, however, into their draft of a Constitution, an express provision that every member of the House of Representatives should be of the age of twenty-five years at least, should have been a citizen of the United States for at least three years before his election, and should be, at the time of his election, a resident in the State in which he might be chosen.[135] A property qualification for the members of the House of Representatives was a thing of far less consequence than the fact of citizenship. Indeed, there might well be a doubt, whether a requisition of this kind would not be in some degree inconsistent with the character that had already been impressed upon the government, by the compromise which had settled the nature of the representation in the popular branch. It was to be a representation of the people of the States; and as soon as it was determined that the right of suffrage in each State should be just as broad as the legislative authority of the State might see fit to make it, the basis of the representation became a democracy, without any restrictions save those which the people of each State might impose upon it for themselves. If then the Constitution were to refrain from imposing on the electors a property qualification, for the very purpose of including all to whom the States might concede the right of voting within their respective limits, thus excluding the idea of a special representation of property, it was certainly not necessary to require the possession of property by the representatives, or to clothe the national legislature with power to establish such a qualification. The clause reported by the committee of detail for this purpose was accordingly left out of the Constitution.[136] But with respect to citizenship, as a requisite for the office of a representative or a senator, very different considerations applied. With whatever degree of safety the States might be permitted to determine who should vote for a representative in the national legislature, it was necessary that the Constitution itself should meet and decide the grave questions, whether persons of foreign birth should be eligible at all, and if so, at what period after they had acquired the general rights of citizens. It seems highly probable, from the known jealousies and fears that were entertained of foreign influence, that the eligibility to office would have been strictly confined to natives, but for a circumstance to which allusion has already been made. The presence of large numbers of persons of foreign birth, who had adopted, and been adopted by, some one of the States, who stood on a footing of equality with the native inhabitants, and some of whom had served the country of their adoption with great distinction and unsuspected fidelity, was the insuperable obstacle to such a provision. The objection arising from the impolicy of discouraging future immigration had its weight; but it had not the decisive influence which was conceded to the position of those foreigners already in the country and already enjoying the rights of citizenship under the laws and constitutions of the several States. That men should be perpetually ineligible to office under a constitution which they had assisted in making, could not be said to be demanded by the people of America. The subject, therefore, was found of necessity to resolve itself into the question, what period of previous citizenship should be required. The committee of detail proposed three years. Other members desired a much longer period. Hamilton, on the other hand, supported by Madison, proposed that no definite time should be established by the Constitution, and that nothing more should be required than citizenship and inhabitancy. He thought that the discretionary power of determining the rule of naturalization would afford the necessary means of control over the whole subject. But this plan did not meet the assent of a majority of the States, and, after various periods had been successively rejected, the term of seven years' citizenship as a qualification of members of the House of Representatives was finally established. But was this qualification to apply to those foreigners who were then citizens of the States, and who, as such, would have the right to vote on the acceptance of the Constitution? Were they to be told that, although they could ratify the Constitution, they could not be eligible to office under it, until they had enjoyed the privileges of citizenship for seven years? They had been invited hither by the liberal provisions of the State institutions; they had been made citizens by the laws of the State where they resided; the Articles of Confederation gave them the privileges of citizens in every other State; and thus the very communities by which this Convention had been instituted were said to have pledged their public faith to these persons, that they should stand upon an equality with all other citizens. It is a proof that their case was thought to be a strong one, and it is a striking evidence of the importance attached to the principles involved, that an effort was made to exempt them from the operation of the rule requiring a citizenship of seven years, and that it was unsuccessful.[137] It is impossible now to determine how numerous this body of persons were, in whose favor the attempt was made to establish an exception to the rule; and their numbers constitute a fact that is now historically important only in its bearing upon a principle of the Constitution. From the arguments of those who sought to introduce the exception, it appears that fears were entertained that the retrospective operation of the rule would expose the acceptance of the Constitution to great hazards; for the States, it was said, would be reduced to the dilemma of rejecting it, or of violating the faith pledged to a part of their citizens. Accordingly, the implied obligation of the States to secure to their citizens of foreign birth the same privileges with natives was urged with great force, and it was inferred from the notorious inducements that had been held out to foreigners to emigrate to America, and to avail themselves of the easy privileges of citizenship. Whether the United States were in any way bound to redeem these alleged pledges of the States, was a nice question of casuistry, that was a good deal debated in the discussion. But in truth there was no obligation of public faith in the case, the disregard of which could be justly made a matter of complaint by anybody. When the States had made these persons citizens, and through the Articles of Confederation had conferred upon them the privileges of citizens in every State in the Union, they did not thereby declare that such adopted citizens should be immediately eligible to any or all of the offices under any new government which the American people might see fit to establish at any future time. To have said that they never should be eligible, would have been to establish a rule that would have excluded some of the most eminent statesmen in the country. But the period in their citizenship when they should be made eligible, was just as much an open question of public policy, as the period of life at which all native and all adopted citizens should be deemed fit to exercise the functions of legislators. If the citizen of foreign birth was disfranchised by the one requirement, the native citizen was equally disfranchised by the other, until the disability had ceased. The question was decided, therefore, and rightly so, upon large considerations of public policy; and the principal reasons that exercised a controlling influence upon the decision, and caused the refusal to establish any exception to the rule, afford an interesting proof of the national tone and spirit that were intended to be impressed upon the government at the beginning of its history. It was quite possible, as all were ready to concede, that the time might arrive, when the qualification of so extended a period of citizenship as seven years might not be practically very important; since the people, after having been long accustomed to the duty of selecting their representatives, would not often be induced to confer their suffrages upon a foreigner recently admitted to the position of a citizen. The mischiefs, too, that might be apprehended from such appointments would be far less, after the policy of the government had been settled and the fundamental legislation necessary to put the Constitution into activity had been accomplished. But the first Congress that might be assembled under the Constitution would have a work of great magnitude and importance to perform. Indeed, the character which the government was to assume would depend upon the legislation of the few first years of its existence. Its commercial regulations would then be mainly determined. The relations of the country with foreign nations, its position towards Europe, its rights and duties of neutrality, its power to maintain a policy of its own, would all then be ascertained and settled. Nothing, therefore, could be more important, than to prevent persons having foreign attachments from insinuating themselves into the public councils; and with this great leading object in view, the Convention refused, though by a mere majority only of the States, to exempt from the rule those foreigners who had been made citizens under the naturalization laws of the States.[138] Thus it appears that the Constitution of the United States discloses certain distinct purposes with reference to the participation of foreigners in the political concerns of the country. In the first place, it was clearly intended that there should be no real discouragement to immigration. The position and history of the country from its first settlement, its present and prospective need of labor and capital, its territorial extent, and the nature of its free institutions, were all inconsistent with any policy that would prevent the redundant population of Europe from finding in it an asylum. Accordingly, the emigrant from foreign lands was placed under no perpetual disqualifications. The power of naturalization that was conferred upon the general government, and the accompanying circumstances attending its transfer by the States, show an intention that some provision should be made for the admission of emigrants to the privileges of citizenship, and that in this respect the inducements to a particular residence should be precisely equal throughout the whole of the States. The power was not to remain dormant, under ordinary circumstances, although there might undoubtedly be occasions when its exercise should be suspended. The intention was, that the legislature of the United States should always exercise its discretion on the subject; but the existence of the power, and the reasons for which it was conferred, made it the duty of the legislature to exercise that discretion according to the wants of the country and the requirements of public policy. In the second place, it is equally clear that the founders of the government intended that there should be a real, as well as formal, renunciation of allegiance to the former sovereign of the emigrant,--a real adoption, in principle and feeling, of the new country to which he had transferred himself,--an actual amalgamation of his interests and affections with the interests and affections of the native population,--before he should have the power of acting on public affairs. This is manifest, from the discretionary authority given to Congress to vary the rule of naturalization from time to time as circumstances might require,--an authority that places the States under the necessity of restricting their right of suffrage to citizens, if they would avoid the evils to themselves of an indiscriminate exercise of that right by all who might choose to claim it. The period of citizenship, too, that was required as a qualification for a seat in the popular branch of the government, and which was extended to nine years for the office of senator, was placed out of the discretionary power of change by the legislature, in order that an additional term, beyond that required for the general rights of citizenship, might for ever operate to exclude the dangers of foreign predilections and an insufficient knowledge of the duties of the station. No one who candidly studies the institutions of America, and considers what it was necessary for the founders of our government to foresee and provide for, can hesitate to recognize the wisdom and the necessity of these provisions. A country of vast extent opened to a boundless immigration, which nature invited and which man could scarcely repel,--a country, too, which must be governed by popular suffrage,--could not permit its legislative halls to be invaded by foreign influence. The independence of the country would have been a vain and useless achievement, if it had not been followed by the practical establishment of the right of self-government by the native population; and that right could be secured for their posterity only by requiring that foreigners, who claimed to be regarded as a part of the people of the country, should be first amalgamated in spirit and interest with the mass of the nation. No other changes were made in the proposed qualifications for the representatives, excepting to require that the person elected should be an _inhabitant_ of the State for which he might be chosen, at the time of election, instead of being a _resident_. This change of phraseology was adopted to avoid ambiguity; the object of the provision being simply to make the representation of the State a real one. The Convention, as we have seen, had settled the rule for computing the number of inhabitants of a State, for the purposes of representation, and had made it the same with that for apportioning direct taxes among the States.[139] The committee of detail provided that there should be one representative for every forty thousand inhabitants, when Congress should find it necessary to make a new apportionment of representatives; a ratio that had not been previously sanctioned by a direct vote of the Convention, but which had been recommended by the committee of compromise, at the time when the nature of the representation in both houses was adjusted.[140] This ratio was now adopted in the article relating to the House of Representatives; but not before an effort was made to exclude the slaves from the enumeration.[141] The renewed discussion of this exciting topic probably withdrew the attention of members from the consideration of the numbers of the representatives, and nothing more was done, at the time we are now examining, than to make a provision that the number should not exceed one for every forty thousand inhabitants. But at a subsequent stage of the proceedings,[142] before the Constitution was sent to the committee of revision, Wilson, Madison, and Hamilton endeavored to procure a reconsideration of this clause, for the purpose of establishing a more numerous representation of the people. Hamilton, who had always and earnestly advocated the introduction of a strong democratic element into the Constitution, although he desired an equally strong check to that element in the construction of the Senate, is represented to have expressed himself with great emphasis and anxiety respecting the representation in the popular branch. He avowed himself, says Mr. Madison, a friend to vigorous government, but at the same time he held it to be essential that the popular branch of it should rest on a broad foundation. He was seriously of opinion, that the House of Representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties.[143] But the motion to reconsider was lost,[144] and it was not until the Constitution had been engrossed, and was about to be signed, that an alteration was agreed to, at the suggestion of Washington. This was the only occasion on which he appears to have expressed an opinion upon any question depending in the Convention. With the habitual delicacy and reserve of his character, he had confined himself strictly to the duties of a presiding officer, throughout the proceedings. But now, as the Constitution was likely to go forth with a feature that would expose it to a serious objection, he felt it to be his duty to interpose. But it was done with great gentleness. As he was about to put the question, he said that he could not forbear expressing his wish that the proposed alteration might take place. The smallness of the proportion of representatives had been considered by many members, and was regarded by him, as an insufficient security for the rights and interests of the people. Late as the moment was, it would give him much satisfaction to see an amendment of this part of the plan adopted. The intimation was enough; no further opposition was offered, and the ratio was changed to one representative for thirty thousand inhabitants.[145] It is now necessary to trace the origin of a peculiar power of the House of Representatives, that is intimately connected with the practical compromises on which the government was founded, although the circumstances and reasons of its introduction into the Constitution are not generally understood. I refer to the exclusive power of originating what are sometimes called "money bills." In making this provision, the framers of our government are commonly supposed to have been guided wholly by the example of the British constitution, upon an assumed analogy between the relations of the respective houses in the two countries to the people and to each other. This view of the subject is not wholly correct. At an early period in the deliberations, when the outline of the Constitution was prepared in a committee of the whole, a proposition was brought forward to restrain the Senate from originating money bills, upon the ground that the House would be the body in which the people would be the most directly represented, and in order to give effect to the maxim which declares that the people should hold the purse-strings. The suggestion was immediately encountered by a general denial of all analogy between the English House of Lords and the body proposed to be established as the American Senate. In truth, as the construction of the Senate then stood in the resolutions agreed to in the committee of the whole, the supposed reason for the restriction in England would have been inapplicable; for it had been voted that the representation in the Senate should be upon the same proportionate rule as that of the House, although the members of the former were to be chosen by the legislatures, and the members of the latter by the people, of the States. It was rightly said, therefore, at this time, that the Senate would represent the people as well as the House; and that if the reason in England for confining the power to originate money bills to the House of Commons was that they were the immediate representatives of the people, the reason had no application to the two branches proposed for the Congress of the United States.[146] It was however admitted, that, if the representation in the Senate should not finally be made a proportionate representation of the people of the several States, there might be a cause for introducing this restriction.[147] This intimation referred to a reason that subsequently became very prominent. But when first proposed, the restriction was rejected in the committee by a vote of seven States against three; there being nothing involved in the question at that time excepting the theoretical merits of such a distinction between the powers of the two houses.[148] But other considerations afterwards arose. When the final struggle came on between the larger and the smaller States, upon the character of the representation in the two branches, the plan of restricting the origin of money bills to the House of Representatives presented itself in a new aspect. The larger States were required to concede an equality of representation in the Senate; and it was supposed, therefore, that they would desire to increase the relative power of the branch in which they would have the greatest numerical strength. The five States of Massachusetts, Pennsylvania, Virginia, North Carolina, and South Carolina had steadily resisted the equality of votes in the Senate. When it was at length found that the States were equally divided on this question, and it became necessary to appoint the first committee of compromise, the smaller States tendered to the five larger ones the exclusive money power of the House, as a compensation for the sacrifice required of them. It was so reported by the committee of compromise; and although it met with resistance in the Convention, and was denied to be a concession of any importance to the larger States, it was retained in the report,[149] and thus formed a special feature of the resolutions sent to the committee of detail. But those resolutions had also established the equality of representation in the Senate, and the whole compromise, with its several features, had therefore been once fully ascertained and settled. A strong opposition, nevertheless, continued to be made to the exclusive money power of the House, by those who disapproved of it on its merits; and when the article by which it was given in the reported draft prepared by the committee of detail was reached, it was stricken out by a very large vote of the States.[150] In this vote there was a concurrence of very opposite purposes on the part of the different States composing the majority. New Jersey, Delaware, and Maryland, for example, feeling secure of their equality in the Senate, were not unwilling to allow theoretical objections to prevail, against the restriction of money bills to the branch in which they would necessarily be outnumbered. On the other hand, some of the delegates of Pennsylvania, Virginia, and South Carolina, still unwilling to acquiesce in the equality of representation in the Senate, may have hoped to unhinge the whole compromise. There was still a third party among the members, who insisted on maintaining the compromise in all its integrity, and who considered that the nature of the representation in the Senate, conceded to the wishes of the smaller States, rendered it eminently fit that the House alone should have the exclusive power to originate money bills.[151] This party finally prevailed. They rested their first efforts chiefly upon the fact that the Senate was to represent the States in their political character. Although it might be proper to give such a body a negative upon the appropriations to be made by the representatives of the people, it was not proper that it should tax the people. They first procured a reconsideration of the vote which had stricken out this part of the compromise. They then proposed, in order to avoid an alleged ambiguity, that bills for raising money for the purpose of _revenue_, or appropriating money, should originate in the House, and should not be so amended or altered in the Senate as to increase or diminish the sum to be raised, or change the mode of levying it, or the object of its appropriation.[152] An earnest and somewhat excited debate followed this proposition, but it was lost.[153] In a day or two, however, another effort was made, conceding to the Senate the power to amend, as in other cases, but confining the right to the House of originating bills for raising money for the purpose of revenue, or for appropriating the same, and for fixing the salaries of officers of the government.[154] This new proposition was postponed for a long time, until it became necessary to refer several topics not finally acted upon to a committee of one member from each State.[155] Among these subjects there was one that gave rise to protracted conflicts of opinion, which will be examined hereafter. It related to the mode of choosing the executive. In the plan reported by the committee of detail, pursuant to the instructions of the Convention, the executive was to be chosen by the national legislature, for a period of seven years, and was to be ineligible a second time. Great efforts were subsequently made to change both the mode of appointment and the tenure of the office, and the whole subject was finally referred with others to a committee. In this committee, a new compromise, which has attracted but little attention, embraced the long-contested point concerning the origin of money bills. In this compromise, as in so many of the others on which the Constitution was founded, two influences are to be traced. There were in the first place what may be called the merits of a proposition, without regard to its bearing on the interests of particular States; and in the second place there were the local or State interests, which entered into the treatment of every question by which they could be affected. In studying the compromises of the Constitution, it is constantly necessary to observe how the arrangement finally made was arrived at by the concurrence of votes given from these various motives. It was now proposed in the new committee, that the executive should be chosen by electors, appointed by each State in such manner as its legislature might direct, each State to have a number of electors equal to the whole number of its senators and representatives in Congress; that the person having the greatest number of votes, provided it were a majority of the electors, should be declared elected; that if there should be more than one having such a majority, the Senate should immediately choose one of them by ballot; and that if no person had a majority, the Senate should immediately choose by ballot from the five highest candidates on the list returned by the electors. This plan of vesting the election in the Senate, in case there should be no choice by the electors, was eagerly embraced by the smaller States, because it was calculated to restore to them the equilibrium which they would lose in the primary election, by the preponderance of votes held by the larger States. At the same time, it gave to the larger States great influence in bringing forward the candidates, from whom the ultimate choice must be made, when no choice had been effected by the electors; and it put it in their power, by a combination of their interests against those of the smaller States, to choose their candidate at the first election. To this great influence, many members from the larger States desired, naturally, to add the privilege of confining the origin of revenue bills to the House of Representatives. They found in the committee some members from the smaller States willing to concede this privilege, as the price of an ultimate election of the executive by the Senate, and of other arrangements which tended to elevate the tone of the government, by increasing the power and influence of the Senate. They found others also who approved of it upon principle. The compromise was accordingly effected in the committee, and in this attitude the question concerning revenue bills again came before the Convention.[156] But there, a scheme that seemed likely to elevate the Senate into a powerful oligarchy, and that would certainly put it in the power of seven States, not containing a third of the people, to elect the executive, when there failed to be a choice by the electors, met with strenuous resistance. For these and other reasons, not necessary to be recounted here, the ultimate choice of the executive was transferred from the Senate to the House of Representatives.[157] This change, if coupled with the concession of revenue bills to the House, without the right to amend in the Senate, would have thrown a large balance of power into the former assembly; and in order to prevent this inequality, a provision was made, in the words used in the Constitution of Massachusetts, that the Senate might propose or concur with amendments, as on other bills. With this addition, the restriction of the origin of bills for raising revenue to the House of Representatives finally passed, with but two dissentient votes.[158] The qualifications of the Senators had been made superior in some respects to those of the members of the House of Representatives, on account of the peculiar duties which it was intended they should discharge, and the length of their term of office. They were to be of the age of thirty years; to be inhabitants of the States for which they might be chosen; and in the report of the committee of detail the period of four years' citizenship was made one of the requirements. But so great was the jealousy of foreign influence, and so important was the position of a senator likely to become, that, when this particular qualification came to be considered, it was found to be altogether impossible to make so short a period of citizenship acceptable to a majority. According to the plan then contemplated, the Senate was to be a body of great power. Its legislative duties were to form but a part of its functions. It was to have the making of treaties, and the appointment of ambassadors and judges of the Supreme Court, without the concurrent action of any other department of the government. In addition to these special powers, it was to have a concurrent vote with the House of Representatives in the election of the executive. It was also to exercise the judicial function of hearing and determining questions of boundary between the States. This formidable array of powers, which were subsequently much modified or entirely taken away, but which no one could then be sure would not be retained as they had been proposed, rendered it necessary to guard the Senate with peculiar care. A very animated discussion, in which the same reasons were urged on both sides which had entered into the debate on the qualifications of the representatives, enforced by the peculiar dangers to which the Senate might be exposed, at length resulted in a vote establishing the period of nine years' citizenship as a qualification for the office of a senator.[159] The origin of the number of senators and of the method of voting forms an interesting and important topic, to which our inquiries should now be directed. We have already seen that, in the formation of the Virginia plan of government, as it was digested in the committee of the whole, the purpose was entertained, and was once sanctioned by a bare majority of the States, of giving to both branches of the legislature a proportional representation of the respective populations of the States; and that the sole difference between the two chambers then contemplated was to be in the mode of election. But in the actual situation of the different members of the confederacy, it was a necessary consequence of such a representation, that the Senate would be made by it inconveniently large, whether the members were to be elected by the legislatures, the executives, or the people of the States. It would, in fact, have made the first Senate to consist of eighty or a hundred persons, in order to have entitled the State of Delaware to a single member. This inconvenience was pointed out at an early period, by Rufus King;[160] but it did not prevent the adoption of this mode of representation. On the one side of that long contested question were those who desired to found the whole system of representation, as between the States, upon their relative numbers of inhabitants. On the other side were those who insisted upon an absolute equality between the States. But among the former there was a great difference of opinion as to the best mode of choosing the senators,--whether they should be elected by the people in districts, by the legislatures or the executives of the States, or by the other branch of the national legislature. So strongly, however, were some of the members even from the most populous States impressed with the necessity of preserving the State governments in some connection with the national system, that, while they insisted on a proportional representation in the Senate, they were ready to concede to the State legislatures the choice of its members, leaving the difficulty arising from the magnitude of the body to be encountered as it might be.[161] The delegates of the smaller States accepted this concession, in the belief that the impracticability of constructing a convenient Senate in this mode would compel an abandonment of the principle of unequal representation, and would require the substitution of the equality for which they contended. In this expectation they were not disappointed; for when the system framed in the committee came under revision in the Convention, and the severe and protracted contest ended at last in the compromise described in a previous chapter, the States were not only permitted to choose the members of the Senate, but they were admitted to an equality of representation in that branch, and the subject was freed from the embarrassment arising from the numbers that must have been introduced into it by the opposite plan. From this point, the sole questions that required to be determined related to the number of members to be assigned to each State, and the method of voting. The first was a question of expediency only; the last was a question both of expediency and of principle. The constant aim of the States, which had from the first opposed a radical change in the structure of the government, was to frame the legislature as nearly as possible upon the model of the Congress of the Confederation. In that assembly, each State was allowed not more than seven, and not less than two members; but in practice, the delegations of the States perpetually varied between these two numbers, or fell below the lowest, and in the latter case the State was not considered as represented. The method of voting, however, rendered it unimportant how many members were present from a State, provided they were enough to cast the vote of the State at all; for all questions were decided by the votes of a majority of the States, and not of a majority of the members voting. I have already had occasion more than once to notice the fact,--and it is one of no inconsiderable importance,--that the first Continental Congress, assembled in 1774, adopted the plan of giving to each Colony one vote, because it was impossible to ascertain the relative importance of the different Colonies. The record that was then made of this reason for a method of voting that would have been otherwise essentially unjust, shows quite clearly that a purpose was then entertained of adopting some other method at a future time. But when the Articles of Confederation were framed, in 1781, it appears as clearly from the discussions in Congress, not only that the same difficulty of obtaining the information necessary for a different system continued, but that some of the States were absolutely unwilling to enter the Confederation upon any other terms than a full federal equality. In this way the practice of voting by States in Congress was perpetuated down to the year 1787. It had come to be regarded by some of the smaller States, notwithstanding the injustice and inconvenience which it constantly produced, as a kind of birthright; and when the Senate of the United States came to be framed, and an equality of representation in it was conceded, some of the members of those States still considered it necessary to preserve this method of voting, in order to complete the idea of State representation, and to enable the States to protect their individual rights.[162] But it is obvious that, for this purpose, the question had lost its real importance, when an equal number of Senators was assigned to each State; since, upon every measure that can touch the separate rights and interests of a State, the unanimity which is certain to prevail among its representatives makes the vote of the State as efficient as it could be if it were required to be cast as a unit, while the chances for its protection are increased by the opportunity of gaining single votes from the delegations of other States. These and similar considerations ultimately led a large majority of the States to prefer a union of the plan of an equal number of senators from each State with that which would allow them to vote _per capita_.[163] The number of two was adopted as the most convenient, under all the circumstances, because most likely to unite the despatch of business with the constant presence of an equal number from every State. With this peculiar character, the outline of the institution went to the committee of detail. On the consideration of their report, these provisions, as we have seen, became complicated with the restriction of "money bills" to the House of Representatives, and the choice of the executive. The mode in which those controversies were finally settled being elsewhere stated, it only remains here to record the fact that the particular nature and form of the representation in the Senate was generally acquiesced in, when its relations to the other branches of the government had been determined. The difference of origin of the two branches of the legislature made it necessary to provide for different modes of supplying the vacancies that might occur in them. The obvious way of effecting this in the case of a vacancy in the office of a representative was to order a new election by the people, who can readily assemble for such a purpose; and the duty of ordering such elections was imposed on the executives of the States, because those functionaries would be best informed as to the convenience of their meeting. But the State legislatures, to whom the choice of senators was to be confided, would be in session for only a part of the year; and to summon them for the special purpose of filling a vacancy in the Senate might occasion great inconvenience. The committee of detail, therefore, provided that vacancies in the Senate might be supplied by the executive of the State until the next meeting of its legislature. It is now time to turn to the examination of that great scheme of separate and concurrent powers, which it had been proposed to confer upon the Senate, and the suggestion of which influenced to a great degree the qualifications of the members, their term of office, and indeed the entire construction of this branch of the legislature. The primary purpose of a Senate was that of a second legislative chamber, having equal authority in all acts of legislation with the first, the action of both being necessary to the passage of a law. As the formation of the Constitution proceeded, from the single idea of such a second chamber, without any special character of representation to distinguish it from the first, up to the plan of an equal representation of the States, there was a strong disposition manifested to accumulate power in the body for which this peculiar character had been gained. It had been made the depositary of a direct and equal State influence; and this feature of the system had become fixed and irrevocable before the powers of the other departments, or their origin or relations, had been finally settled. The consequence was, that for a time, wherever jealousy was felt with regard to the executive or the judiciary,--wherever there was a doubt about confiding in the direct action of the people,--wherever a chasm presented itself, and the right mode of filling it did not occur,--there was a tendency to resort to the Senate. Thus, when the committee of detail were charged with the duty of preparing the Constitution according to the resolutions agreed upon in the Convention, the Senate had not only been made a legislative body, with authority co-ordinate to that of the House, but it had received the separate power of appointing the judges, and the power to give a separate vote in the election of the executive. The power to make war and treaties, the appointment of ambassadors, and the trial of impeachments, had not been distinctly given to any department; but the general intention to be inferred from the resolutions was, that these matters should be vested in one or both of the two branches of the legislature. To the executive, the duty had been assigned, which the name of the office implies, of executing the laws; to which had been added a revisionary check upon legislation, and the appointment to offices in cases not otherwise provided for. The judicial power had been described in general and comprehensive terms, which required a particular enumeration of the cases embraced by the principles laid down; but it had not been distinctly foreseen, that one of the cases to which those principles must lead would be an alleged conflict between an act of legislation and the fundamental law of the Constitution. The system thus marked out was carried into detail by the committee, by vesting in the Senate the power to make treaties, to appoint ambassadors and judges of the Supreme Court, and to adjudicate questions of boundary between the States; by giving to the two branches of the legislature the power to declare war; by assigning the trial of impeachments to the Supreme Court, and enumerating the other cases of which it was to have cognizance; and by providing for the election of the executive by the legislature, and confining its powers and duties to those prescribed for it by the resolutions. It is scarcely necessary to pause for the purpose of commenting on the practical inconveniences of some of these arrangements. However proper it may be, in a limited and republican government, to vest the power of declaring war in the legislative department, the negotiation of treaties by a numerous body had been found, in our own experience, and in that of other republics, extremely embarrassing. However wise may be a jealousy of the executive department, it is difficult to say that the same authority that is intrusted with the appointment to all other offices should not be permitted to make an ambassador or a judge. However august may be a proceeding that is to determine a boundary between sovereign States, it is nothing more and nothing less than a strictly judicial controversy, capable of trial in the ordinary forms and tribunals of judicature, besides being one that ought to be safely removed from all political influences. However necessary it may be that an impeachment should be conducted with the solemnities and safeguards of allegation and proof, it is not always to be decided by the rules with which judges are most familiar, or to be determined by that body of law which it is their special duty to administer. However desirable it may be, that an elective chief magistracy should be filled with the highest capacity and fitness, and that popular tumults should be avoided, no government has yet existed, in which the election of such a magistrate by the legislative department has afforded any decided advantage over an election directly or indirectly by the people; and to give a body constituted as the American Senate is a negative in the choice of the executive, would be certainly inconvenient, probably dangerous. But the position of the Senate as an assembly of the States, and certain opinions of its superior fitness for the discharge of some of these duties, had united to make it far too powerful for a safe and satisfactory operation of the government. It was found to be impossible to adjust the whole machine to the quantity of power that had been given to one of its parts. It was eminently just and necessary that the States should have an equal and direct representation in some branch of the government; but that a majority of the States, containing a minority of the people, should possess a negative in the appointment of the executive, and in the question of peace or war, and the sole voice in the appointment of judges and ambassadors, was neither necessary nor proper. Theoretically, it might seem appropriate that a question of boundary between any two of the States represented in it should be committed to the Senate, as a court of the peers of the sovereign parties to the dispute; but practically, this would be a tribunal not well fitted to try a purely judicial question. It became necessary, therefore, to discover the true limit of that control which the nature of the representation in the Senate was to be allowed to give to a majority of the States. There had been some effort, in the progress of the controversy respecting the representative system, to confine the equal power of the States, in matters of legislation, to particular questions or occasions; but it had turned out to be impracticable thus to divide or limit the ordinary legislative authority of the same body. If the Senate, as an equal assembly of the States, was to legislate at all, it must legislate upon all subjects by the same rule and method of suffrage. But when the question presented itself as to the separate action of this assembly,--how far it should be invested with the appointment of other functionaries, how far it should control the relations of the country with foreign nations, how far it should partake both of executive and judicial powers,--it was much less difficult to draw the line, and to establish proper limits to the direct agency of the States. Those limits could not indeed be ascertained by the mere application of theoretical principles. They were to be found in the primary necessity for reposing greater powers in other departments, for adjusting the relations of the system by a wider distribution of authority, and for confiding more and more in the intelligence and virtue of the people; and therefore it is, that, in these as in other details of the Constitution, we are to look for the clew that is to give us the purpose and design, quite as much to the practical compromises which constantly took place between opposite interests, as to any triumph of any one of opposite theories. The first experiment that was made towards a restriction of the power of the Senate, and an adjustment of its relations to the other departments, was the preparation of a plan, by which the President was to have the making of treaties, and the appointment of ambassadors, judges of the Supreme Court, and all other officers not otherwise provided for, by and with, the advice and consent of the Senate. The trial of impeachments, of the President included, was transferred to the Senate, and the trial of questions of boundary was placed, like other controversies between States, within the scope of the judicial power. The choice of the President was to be made in the first instance by electors appointed by each State, in such manner as its legislature might direct, each State to have a number of electors equal to the whole number of its senators and representatives in Congress; but if no one of the persons voted for should have a majority of all the electors, or if more than one person should have both a majority and an equal number of votes, the Senate were to choose the President from the five highest candidates voted for by the electors. In this plan, there was certainly a considerable increase of the power of the President; but there was not a sufficient diminution of the power of the Senate. The President could nominate officers and negotiate treaties; but he must obtain the consent of the body by whom he might have been elected, and by whom his re-election might be determined, if he were again to become a candidate. It appeared, therefore, to be quite necessary, either to take away the revisionary control of the Senate over treaties and appointments, or to devise some mode by which the President could be made personally independent of that assembly. He could be made independent only by taking away all agency of the Senate in his election, or by making him ineligible to the office a second time. There were two serious objections to the last of these remedies,--the country might lose the services of a faithful and experienced magistrate, whose continuance in office would be highly important; and even in a case where no pre-eminent merit had challenged a re-election, the effect of an election by the Senate would always be pernicious, and must be visible throughout the whole term of the incumbent who had been successful over four other competitors. And after all, what necessity was there for confiding this vast power to the Senate, opening the door of a small body to the corruption and intrigue for which the magnitude of the prize to be gained and to be given, and the facility for their exercise, would furnish an enormous temptation? Was it so necessary that the States should force their equality of privilege and of power into every department of the Constitution, making it felt not only in all acts of legislation, but in the whole administration of the executive and judicial duties? Was nothing due to the virtue and sense and patriotism of a majority of the people of the United States? Might they not reasonably be expected to constitute a body of electors, who, chosen for the express purpose, and dissolved as soon as their function had been discharged, would be able to make an upright and intelligent choice of a chief magistrate from among the eminent citizens of the Union? Questions like these, posterity would easily believe, without the clear record that has descended to them, must have anxiously and deeply employed the framers of the Constitution. They were to consider, not only what was theoretically fit and what would practically work with safety and success, but what would be accepted by the people for whom they were forming these great institutions. That people undoubtedly detested everything in the nature of a monarchy. But there was another thing which they hated with equal intensity, and that was an oligarchy. Their experience had given them quite as much reason for abhorring the one as the other. Such, at least, was their view of that experience. A king, it is true, was the chief magistrate of the mother country against which they had rebelled, against which they had fought successfully for their independence. The measures that drove them into that resistance were executed by the monarch; but those measures were planned, as they believed, by a ministry determined to enslave them, and were sanctioned by a Parliament in which even the so-called popular branch was then but another phase of the aristocracy which ruled the empire. The worst enemy our grandfathers supposed they had in England, throughout their Revolution, was the ministerial majority of that House of Commons, made up of placemen sitting for rotten boroughs, the sons of peers, and the country gentlemen, who belonged to a caste as much as their first-cousins who sat by titles in the House of Lords. Our ancestors did not know--they went to their graves without knowing--that in the hard, implacable temper of the king, made harder and more implacable by a narrow and bigoted conscientiousness, was the real cause for the persistency in that fatal policy which severed these Colonies from his crown. That long struggle had been over for several years, and its result was certainly not to be regretted by the people of America. But it had left them, as it naturally must have left them, with as strong prejudices and jealousies against every aristocratic, as against every monarchical institution. Public liberty in England they knew might consist with an hereditary throne, and with a privileged and powerful aristocracy. But public liberty in America could consist with neither. The people of the United States could submit to restraints; they could recognize the necessity for checks and balances in the distribution of authority; and they understood as much of the science of government as any people then alive. But an institution,--however originating and however apparently necessary its peculiar construction might be,--embracing but a small number of persons, with power to elect the chief magistrate, with power to revise every appointment from a chief justice down to a tidewaiter, with power to control the President through his subordinate agents, with power to reject every treaty that he might negotiate, and with power to sit in judgment on his impeachment, they would not endure. "We have, in some revolutions of this plan of government," said Randolph, "made a bold stroke for monarchy. We are now doing the same for an aristocracy." How to attain the true intermediate ground, to avoid the substance of a monarchy and the substance of an aristocracy, and yet not to found the system on a mere democracy, was a problem not easy of solution. All could see, that a government extended over a country so large, which was to have the regulation of its commerce, the collection of great revenues, the care of a vast public domain, the superintendence of intercourse with hordes of savage tribes, the control of relations with all the nations of the world, the administration of a peculiar jurisprudence, and the protection of the local constitutions from violence, must have an army and a navy, and great fiscal, administrative, and judicial establishments, embracing a very numerous body of public officers. To give the appointment of such a multitude of public servants, invested with such functions, to the unchecked authority of the President, would be to create an executive with power not less formidable and real than that of some monarchs, and far greater than that of others. No one desired that a sole power of appointment should be vested in the President alone; it was universally conceded that there must be a revisionary control lodged somewhere, and the only question was where it should be placed. That it ought to be in a body independent of the executive, and not in any council of ministers that might be assigned to him, was apparent; and there was no such body, excepting the Senate, which united the necessary independence with the other qualities needful for a right exercise of this power. The negotiation of treaties was obviously a function that should be committed to the executive alone. But a treaty might undertake to dismember a State of part of its territory, or might otherwise affect its individual interests; and even where it concerned only the general interests of all the States, there was a great unwillingness to intrust the treaty-making power exclusively to the President. Here, the States, as equal political sovereignties, were unwilling to relax their hold upon the general government; and the result was that provision of the Constitution which makes the consent of two thirds of the Senators present necessary to the ratification of a treaty. But if it was to have these great overruling powers, the Senate must have no voice in the appointment of the executive. There were two modes in which the election might be arranged, so as to prevent a mutual connection and influence between the Senate and the President. The one was, to allow the highest number of electoral votes to appoint the President;[164] the other was, to place the eventual election--no person having received a majority of all the electoral votes--in the House of Representatives. The latter plan was finally adopted, and the Senate was thus effectually severed from a dangerous connection with the executive. This separation having been effected, the objections which had been urged against the length of the senatorial term became of little consequence. In the preparation of the plan marked out in the resolutions sent to the committee of detail, the Senate had been considered chiefly with reference to its legislative function; and the purpose of those who advocated a long term of office was to establish a body in the government of sufficient wisdom and firmness to interpose against the impetuous counsels and levelling tendencies of the democratic branch.[165] Six years was adopted as an intermediate period between the longest and the shortest of the terms proposed; and in order that there might be an infusion of different views and tendencies from time to time, it was provided that one third of the members should go out of office biennially.[166] Still, in the case of each individual senator, the period of six years was the longest of the limited terms of office created by the Constitution. Under the Confederation, the members of the Congress had been chosen annually, and were always liable to recall. The people of the United States were in general strongly disposed to a frequency of elections. A term of office for six years would be that feature of the proposed Senate most likely, in the popular mind, to be regarded as of an aristocratic tendency. If united with the powers that have just passed under our review, and if to those powers it could be said that an improper influence over the executive had been added, the system would in all probability be rejected by the people. But if the Senate were deprived of all agency in the appointment of the President, it would be mere declamation to complain of their term of office; for undoubtedly the peculiar duties assigned to the Senate could be best discharged by those who had had the longest experience in them. The solid objection to such a term being removed, the complaint of aristocratic tendencies would be confined to those who might wish to find plausible reasons for opposition, and might not wish to be satisfied with the true reasons for the provision. Having now described the formation and the special powers of the two branches of the legislature, I proceed to inquire into the origin and history of the disqualifications to which the members were subjected. The Constitution of the United States was framed and established by a generation of men, who had observed the operation upon the English legislature of that species of influence, by the crown or its servants, which, from the mode of its exercise, not seldom amounting to actual bribery, has received the appropriate name of parliamentary corruption. That generation of the American people knew but little--they cared less--about the origin of a method of governing the legislative body, which implies an open or a secret venality on the part of its members, and a willingness on the part of the administration to purchase their consent to its measures. What they did know and what they did regard was, that for a long succession of years the votes of members of Parliament had been bought, with money or office, by nearly every minister who had been at the head of affairs; that, if this practice had not been introduced under the prince who was placed upon the throne by the revolution of 1688, it had certainly grown to a kind of system in the hands of the statesmen by whom that revolution was effected, and had attained its greatest height under the first two princes of the house of Hanover; that it was freely and sometimes shamefully applied throughout the American war; and that, down to that day, no British statesman had had the sagacity to discover, and the virtue to adopt, a purer system of administration.[167] Whether this was a necessary vice of the English constitution; whether it was inherent or temporary; or whether it was only a stage in the development of parliamentary government, destined to pass away when the relations of the representative body to the people had become better settled,--could not then be seen even in England. But to our ancestors, when framing their Constitution, it presented itself as a momentous fact; whose warning was not the less powerful, because it came from the centre of institutions with which they had been most familiar, and from the country to which they traced their origin,--a country in which parliamentary government had had the fairest chances for success that the world had witnessed. Yet it would not have been easy at that time, as it is not at the present, and as it may never be, to define with absolute precision the true limits which executive influence with the legislative body should not be suffered to pass. Still less is it easy to say that such influence ought not to exist at all;[168] although it is not difficult to say that there are methods in which it should not be suffered to be exercised. The more elevated and more clear-sighted public morality of the present age, in England and in America, condemns with equal severity and equal justice both the giver and the receiver in every transaction that can be regarded as a purchase of votes upon particular measures or occasions, whatever may have been the consideration or motive of the bargain. But whether that morality goes, or ought to go, farther,--whether it includes, or ought to include, in the same condemnation, every form of influence by which an administration can add extrinsic weight to the merits of its measures,--is a question that admits of discussion. It may be said, assuming the good intentions of an administration, and the correctness of its policy and measures, that its policy and its measures should address themselves solely to the patriotism and sense of right of the members of the legislative department. But an ever active patriotism and a never failing sense of right are not always, if often, to be found; the members of a legislative body are men, with the imperfections, the failings, and the passions of men; and if pure patriotism and right perceptions of duty are alone relied upon, they may, and sometimes inevitably will be, found wanting. On the other hand, it is just as true, that the persons composing every administration are mere men, and that it will not do to assume their wisdom and good intentions as the sole foundations on which to rest the public security, leaving them at liberty to use all the appliances that may be found effectual for gaining right ends, and overlooking the character of the means. One of the principal reasons for the establishment of different departments, in the class of governments to which ours belongs, is, that perfect virtue and unerring wisdom are not to be predicated of any man in any station. If they were, a simple despotism would be the best and the only necessary form of government. All correct reasoning on this subject, and all true construction of governments like ours, must commence with two propositions, one of which embraces a truth of political science, and the other a truth of general morals. The first is, that, while the different functions of government are to be distributed among different persons, and to be kept distinctly separated, in order that there may be both division of labor and checks against the abuse of power, it is occasionally necessary that some room should be allowed for supplying the want of wisdom or virtue in one department by the wisdom or virtue of another. In matters of government depending on mere discretion, unlimited confidence cannot with safety be placed anywhere.[169] The other proposition is the very plain axiom in morals, that, while in all human transactions there may be bad means employed to effect a worthy object, the character of those means can never be altered, nor their use justified, by the character of the end. With these two propositions admitted, what is to be done is to discover that arrangement of the powers and relations of the different departments whose acts involve, more or less, the exercise of pure discretion, which will give the best effect to both of these truths; and as all government and all details of government, to be useful, must be practically adapted to the nature of man, it will be found that an approximation in practice to a perfect theory is all that can be attained. Thus the general duties and powers of the legislative and the executive departments are capable of distinct separation. The one is to make, the other is to execute the laws. But execution of the laws of necessity involves administration, and administration makes it necessary that there should be an executive policy. To carry out that policy requires new laws; authority must be obtained to do acts not before authorized; and supplies must be perpetually renewed. The executive stands therefore in a close relation to the legislative department;--a relation which makes it necessary for the one to appeal frequently, and indeed constantly, to the discretion of the other. If the executive is left at liberty to purchase what it believes or alleges to be the right exercise of that discretion, by the inducements of money or office applied to a particular case, the rule of common morals is violated; conscience becomes false to duty, and corruption, having once entered the body politic, may be employed to effect bad ends as well as good. Nay, as bad ends will stand most in need of its influence, it will be applied the most grossly where the object to be attained is the most culpable. On the other hand, if the members of the legislative body, by being made incapable of accepting the higher or more lucrative offices of state, are cut off from those inducements to right conduct and a true ambition which the imperfections of our nature have made not only powerful, but sometimes necessary, aids to virtue, the public service may have no other security than their uncertain impulses or imperfect judgments. In the midst of such tendencies to opposite mischiefs, all that human wisdom and foresight can do is, to anticipate and prevent the evils of both extremes, by provisions which will guard both the interests of morality and the interests of political expediency as completely as circumstances will allow. I am persuaded it was upon such principles as I have thus endeavored to state, that the framers of our national Constitution intended to regulate this very difficult part of the relations between the executive and the legislature. During a considerable period, however, of their deliberations on the disabilities to which it would be proper to subject the members of the latter department, they had another example before them besides that afforded by the history of parliamentary corruption in England. The Congress of the Confederation had of course the sole power of appointment to offices under the authority of the United States; and although there is no reason to suppose that body at any time to have been justly chargeable with corrupt motives, there were complaints of the frequency with which it had filled the offices which it had created with its own members. In these complaints, the people overlooked the justification. They forgot that the nature of the government, and the circumstances of the country, rendered it difficult for an assembly which both made and filled the offices, and which exercised its functions at a time when the State governments absorbed by far the greater part of the interests and attention of their citizens, to find suitable men out of its own ranks. In that condition of things, it might have been expected,--and it implies no improper purpose,--that offices would be sometimes framed or regulated with a view to their being filled by particular persons. But the complaints existed;[170] the evil was one that tended constantly to become worse; and, in framing the new government, this was the first aspect in which the influence of office and its emoluments presented itself to the Convention. For when the Virginia members, through Edmund Randolph, brought forward their scheme of government, they not only gave the executive no power of appointment to any office, but they proposed to vest the appointment of both the executive and the judiciary in the legislature. Hence they felt the necessity of guarding against the abuse that might follow, if the members of the legislature were to be left at liberty to appoint each other to office,--an abuse which they knew had been imputed to the Congress, and which they declared had been grossly practised by their own legislature.[171] They proposed, therefore, to go beyond the Confederation, and to make the members of both branches ineligible to any office established under the authority of the United States, (excepting those peculiarly belonging to their own functions,) during their term of service and for one year after its expiration. This provision passed the committee of the whole; but in the Convention, on a motion made by Mr. Gorham to strike it out, the votes of the States were divided. An effort was then made by Mr. Madison to find a middle ground, between an eligibility in all cases and an absolute disqualification. If the unnecessary creation of offices and the increase of salaries was the principal evil to be anticipated, he believed that the door might be shut against that abuse, and might properly be left open for the appointment of members to places not affected by their own votes, as an encouragement to the legislative service. But there were several of the stern patriots of the Convention who insisted on a total exclusion, and who denied that there was any such necessity for holding out inducements to enter the legislature.[172] This was a question on which different minds, of equal sagacity and equal purity, would naturally arrive at different conclusions. Still, it is apparent that the mischiefs most apprehended at the time of Mr. Madison's proposition would be in a great degree prevented, by taking from the legislature the power of appointing to office; and that this modification of the system was what was needed, to make his plan a true remedy for the abuses that had been displayed in our own experience. The stigma of venality cannot properly be applied to the laudable ambition of rising into the honorable offices of a free government; and if the opportunity to create places, or to increase their emoluments, and then to secure those places, is taken away, by vesting the appointment in the executive, the question turns mainly on the relations that ought to exist between that department and the legislature. But Mr. Madison's suggestion was made before it was ascertained that the executive would have any power of appointment, and it was accordingly rejected;--a majority of the delegations considering it best to retain the ineligibility in all cases, as proposed by the Virginia plan.[173] In this way, the disqualification became incorporated into the first draft of the Constitution, prepared by the committee of detail.[174] But by this time it was known that a large part of the patronage of the government must be placed in the hands of the President; for it had been settled that he was to appoint to all offices not otherwise provided for, and the cases thus excepted were those of judges and ambassadors, which stood, in this draft of the Constitution, vested in the Senate. A strong opposition to this arrangement, however, had already manifested itself, and the result was very likely to be,--as it in fact turned out,--that nearly the whole of the appointments would be made on the nomination of the President, even if the Senate were to be empowered to confirm or reject them. Accordingly, when this clause came under consideration, the principle of an absolute disqualification for office was vigorously attacked, and as vigorously defended. The inconvenience and impolicy of excluding officers of the army and navy from the legislature; of rendering it impossible for the executive to select a commander-in-chief from among the members, in cases of pre-eminent fitness; of refusing seats to the heads of executive departments; and of closing the legislature as an avenue to other branches of the public service,--were all strenuously urged and denied.[175] At length, a middle course became necessary, to reconcile all opinions. By a very close vote, the ineligibility was restrained to cases in which the office had been created, or the emolument of it increased, during the term of membership;[176] and a seat in the legislature was made incompatible with any other office under the United States.[177] Some at least of the probable sources of corruption were cut off by these provisions. The executive can make no bargain for a vote, by the promise of an office which has been acted upon by the member whose vote is sought for; and there can be no body of placemen, ready at all times to sell their votes as the price for which they are permitted to retain their places. At the same time, the executive is not deprived of the influence which attends the power of appointing to offices not created, or the emoluments of which have not been increased, by any Congress of which the person appointed has been a member. This influence is capable of abuse; it is also capable of being honorably and beneficially exerted. Whether it shall be employed corruptly or honestly, for good or for bad purposes, is left by the Constitution to the restraints of personal virtue and the chastisements of public opinion. A serious question, however, has been made, whether the interests of the public service, involved in the relations of the two departments, would not have been placed upon a better footing, if some of the higher officers of state had been admitted to hold seats in the legislature. Under the English constitution, there is no practical difficulty, at least in modern times, in determining the general principle that is to distinguish between the class of officers who can, and those who cannot, be usefully allowed to have seats in the House of Commons. The principle which, after much inconsistent legislation and many abortive attempts to legislate, has generally been acted on since the reign of George II., is, that it is both necessary and useful to have in that House some of the higher functionaries of the administration; but that it is not at all necessary, and not useful, to allow the privilege of sitting in Parliament to subordinate officers.[178] The necessity of the case arises altogether from the peculiar relations of the ministry to the crown, and of the latter to the Commons. If the executive government were not admitted, through any of its members, to explain and vindicate its measures, to advocate new grants of authority, or to defend the prerogatives of the crown, the popular branch of the legislature would either become the predominant power in the state, or sink into insignificance. This is conceded by the severest writers on the English government. But when we pass from a civil polity which it has taken centuries to produce, and which has had its departments adjusted much less by reference to exact principles than by the results of their successive struggles for supremacy over each other, and when we come to an original distribution of powers, in the arrangements of a constitution made entire and at once by a single act of the national will, we must not give too much effect to analogies which after all are far from being complete. In preparing the Constitution of the United States, its framers had no prerogative, in any way resembling that of the crown of England, to consider and provide for. The separate powers to be conferred on the chief magistracy--aside from its concurrence in legislation--were simply executive and administrative; the office was to be elective, and not hereditary; and its functions, like those of the legislature, were to be prescribed with all the exactness of which a written instrument is capable. There was, therefore, little of such danger that the one department would silently or openly encroach on the rights or usurp the powers of the other, as there is where there exists hereditary right on the one side and customary right on the other, and where the boundaries between the two departments are to be traced by the aid of ancient traditions, or collected from numerous and perhaps conflicting precedents. There was no such necessity, therefore, as there is in England, for placing members of the administration in the legislature, in order to preserve the balance of the Constitution. The sole question with us was, whether the public convenience required that the administration should be able to act directly upon the course of legislation. The prevailing opinion was that this was not required. This opinion was undoubtedly formed under the fear of corruption and the jealousy of executive power, chiefly produced--and justly produced--by the example of what had long existed in England. That the error, if any was committed, lay on the safer side, none can doubt. It is possible that the chances of a corrupt influence would not have been increased, and that the opportunities for a salutary influence might have been enlarged,--as it is highly probable that the convenience of communication would have been promoted,--if some of the higher officers of state could have been allowed to hold seats in either house of Congress. But it is difficult to see how this could have been successfully practised, under the system of representation and election which the framers of the Constitution were obliged to establish: and perhaps this is a decisive answer to the objection.[179] Among the powers conceded by the Constitution to the legislature of each State is that of prescribing the time, place, and manner of holding the elections of its senators and representatives in Congress. This provision[180] originated with the committee of detail; but, as it was reported by them, there was no other authority reserved to Congress itself than that of altering the regulations of the States; and this authority extended as well to the place of choosing the senators, as to all the other circumstances of the election.[181] In the Convention, however, the authority of Congress was extended beyond the alteration of State regulations, so as to embrace a power to make rules, as well as to alter those made by the States. But the place of choosing the senators was excepted altogether from this restraining authority, and left to the States.[182] Mr. Madison, in his minutes, adds the explanation, that the power of Congress to _make_ regulations was supplied, in order to enable them to regulate the elections, if the States should fail or refuse to do so.[183] But the text of the Constitution, as finally settled, gives authority to Congress at "any time" to "make or alter such regulations"; and this would seem to confer a power, which, when exercised, must be paramount, whether a State regulation exists at the time or not. There is one other peculiarity of the American legislature, of which it is proper in this connection to give a brief account; namely, the compensation of its members for their public services. In the plan presented by the Virginia delegation, it was proposed that the members of both branches should receive "liberal stipends"; but it was not suggested whether they were to be paid by the States, or from the national treasury. The committee of the whole determined to adopt the latter mode of payment; and as the representation in both branches, according to the first decision, was to be of the same character, no reason was then suggested for making a difference in the source of their compensation. But when the construction of the Senate was considered in the Convention, the idea was suggested that this body ought in some way to represent wealth; and it was apparently under the influence of this suggestion, that, after a refusal to provide for a payment of the senators by their States, payment out of the national treasury was stricken from the resolution under debate.[184] There was thus introduced into the resolutions sent to the committee of detail, a discrepancy between the modes of compensating the members of the two branches; for while the members of the House were to be paid "an adequate compensation" out of "the public treasury," the Senate were to receive "a compensation for the devotion of their time to the public service," but the source of payment was not designated. But when the whole body of those resolutions had been acted on, the character of the representation in the Senate had been settled, and the idea of its being made a representation of wealth, in any sense, had been rejected. The committee of detail had, therefore, in giving effect to the decisions of the Convention, to consider merely whether the members of the two branches should be paid by their States, or from the national treasury; and for the purpose of making the same provision as to both, and in order to avoid the question whether the Constitution should establish the amount, or should leave it to be regulated by the Congress itself, they provided that the members of each house should receive a compensation for their services, to be ascertained and paid by the State in which they should be chosen.[185] This, however, was to encounter far greater evils than it avoided. If paid by their States, the members of the national legislature would not only receive different compensations, but they would be directly subjected to the prejudices, caprices, and political purposes of the State legislatures. Whatever theory might be maintained with respect to the relations between the representatives, in either branch, and the State in which they were chosen, or the people of the States, to subject one class of public servants to the power of another class could not fail to produce the most mischievous consequences. A large majority of the States, therefore, decided upon payment out of the national treasury,[186] and it was finally determined that the rate of compensation should not be fixed by the Constitution, but should be left to be ascertained by law.[187] Among the separate functions assigned by the Constitution to the houses of Congress are those of presenting and trying impeachments. An impeachment, in the report of the committee of detail, was treated as an ordinary judicial proceeding, and was placed within the jurisdiction of the Supreme Court. That this was not in all respects a suitable provision, will appear from the following considerations. Although an impeachment may involve an inquiry whether a crime against any positive law has been committed, yet it is not necessarily a trial for crime; nor is there any necessity, in the case of crimes committed by public officers, for the institution of any special proceeding for the infliction of the punishment prescribed by the laws, since they, like all other persons, are amenable to the ordinary jurisdiction of the courts of justice, in respect of offences against positive law. The purposes of an impeachment lie wholly beyond the penalties of the statute or the customary law. The object of the proceeding is to ascertain whether cause exists for removing a public officer from office. Such a cause may be found in the fact, that, either in the discharge of his office, or aside from its functions, he has violated a law, or committed what is technically denominated a crime. But a cause for removal from office may exist, where no offence against positive law has been committed, as where the individual has, from immorality or imbecility or maleadministration, become unfit to exercise the office. The rules by which an impeachment is to be determined are therefore peculiar, and are not fully embraced by those principles or provisions of law which courts of ordinary jurisdiction are required to administer. From considerations of this kind, especially when applied to the impeachment of a President of the United States, the Convention found it expedient to place the trial in the Senate. In fact, the whole subject of impeachments, as finally settled in the Constitution, received its impress in a great degree from the attention that was paid to the bearing of this power upon the executive. Few members of the Convention were willing to constitute a single executive, with such powers as were proposed to be given to the President, without subjecting him to removal from office on impeachment; and when it was perceived to be necessary to confer upon him the appointment of the judges, it became equally necessary to provide some other tribunal than the Supreme Court for the trial of his impeachment. There was no other body already provided for in the government, with whom this jurisdiction could be lodged, excepting the Senate; and the only alternative to this plan was to create a special tribunal for the sole purpose of trying impeachments of the President and other officers. This was justly deemed a manifest inconvenience; and although there were various theoretical objections suggested against placing the trial in the Senate, on the question being stated there were found to be but two dissentient States.[188] This point having been settled, in relation to impeachments of the President, the trial of impeachments of all other civil officers of the United States was, for the sake of uniformity, also confided to the Senate.[189] The power of impeachment was confined, as originally proposed, to the House of Representatives.[190] The number of members of each house that should be made a _quorum_ for the transaction of business gave rise to a good deal of difference of opinion. The controlling reason why a smaller number than a majority of the members of each house should not be permitted to make laws, was to be found in the extent of the country and the diversity of its interests. The central States, it was said, could always have their members present with more convenience than the distant States; and after some discussion, it was determined to establish a majority of each house as its quorum for the transaction of business, giving to a smaller number power to adjourn from day to day, and to compel the attendance of absent members.[191] Provisions making each house the judge of the elections, returns, and qualifications of its own members; that for any speech, or debate in either house no member shall be questioned in any other place; and that in all cases, except treason, felony, or breach of the peace, the members shall be privileged from arrest during their attendance at, and in going to and returning from, the sessions of their respective houses,--were agreed to without any dissent.[192] The power of each house to determine the rules of its proceedings, to punish its members for disorderly behavior, and to expel with the concurrence of two thirds, was agreed to with general assent.[193] Each house was also directed to keep a journal of its proceedings, and from time to time to publish the same, excepting such parts as may in their judgment require secrecy; and one fifth of the members present in either house were empowered to require the yeas and nays to be entered on its journal.[194] The report of the committee of detail had made no provision for such an officer as the Vice-President of the United States, and had therefore declared that the Senate, as well as the House, should choose its own presiding officer. This feature of their report received the sanction of the Convention; but subsequently, when it became necessary to create an officer to succeed the President of the United States, in case of death, resignation, or removal from office, the plan was adopted of making the former _ex officio_ the presiding officer of the Senate, giving him a vote only in cases where the votes of the members are equally divided.[195] To this was added the further provision, that the Senate shall choose, besides all its other officers, a President _pro tempore_, in the absence of the Vice-President, or when he shall exercise the office of President of the United States.[196] The House of Representatives were empowered to choose their own Speaker, and other officers, as originally proposed.[197] The mode in which laws were to be enacted was the last topic concerning the action of the legislature which required to be dealt with in the Constitution. The principle had been already settled, that the negative of the President should arrest the passage of a law, unless, after he had refused his concurrence, it should be passed by two thirds of the members of each house. In order to give effect to this principle, the committee of detail made the following regulations, which were adopted into the Constitution;--that every bill, which shall have passed the two houses, shall, before it become a law, be presented to the President of the United States; that, if he approve, he shall sign it, but if not, he shall return it, with his objections, to the house in which it originated, who shall enter the objections at large on their journal, and proceed to reconsider it; that if, after such reconsideration, two thirds of that house agree to pass the bill, it is to be sent with the objections to the other house, by which it is likewise to be reconsidered, and, if approved by two thirds of that house, it is to become a law; but in all such cases, the votes of both houses are to be determined by yeas and nays entered upon the journal. If any bill be not returned by the President within ten days (Sundays excepted) after it has been presented to him, it is to become a law, in like manner as if he had signed it, unless the Congress by adjourning prevent its return, in which case it is not to become a law. All orders, resolutions, and votes to which the concurrence of both houses is necessary, (except on a question of adjournment,) are subject to these provisions.[198] The two important differences between the negative thus vested in the President of the United States and that which belongs to the King of England are, that the former is a qualified, while the latter is an absolute, power to arrest the passage of a law; and that the one is required to render to the legislature the reasons for his refusal to approve a bill, while the latter renders no reasons, but simply answers that he will advise of the matter, which is the parliamentary form of signifying a refusal to approve. The provision in our Constitution which requires the President to communicate to the legislature his objections to a bill, was rendered necessary by the power conferred upon two thirds of both houses to make it a law, notwithstanding his refusal to sign it. By this power, which makes the negative of the President a qualified one only, the framers of the Constitution intended that the two houses should take into consideration the objections which may have led the President to withhold his assent, and that his assent should be dispensed with, if, notwithstanding those objections, two thirds of both houses should still approve of the measure. These provisions, therefore, on the one hand, give to the President a real participation in acts of legislation, and impose upon him a real responsibility for the measures to which he gives his official approval, while they give him an important influence over the final action of the legislature upon those which he refuses to sanction; and, on the other hand, they establish a wide distinction between his negative and that of the King in England. The latter has none but an absolute "veto"; if he refuse to sign a bill, it cannot become a law; and it is well understood, that it is on account of this absolute effect of the refusal, that this prerogative has been wholly disused since the reign of William III., and that the practice has grown up of signifying, through the ministry, the previous opposition of the executive, if any exists, while the measure is under discussion in Parliament. It is not needful to consider here which mode of legislation is theoretically or practically the best. It is sufficient to notice the fact, that the absence from our system of official and responsible advisers of the President, having seats in the legislature, renders it impracticable to signify his views of a measure, while it is under the consideration of either house. For this reason, and because the President himself is responsible to the people for his official acts, and in order to accompany that responsibility with the requisite power both to act upon reasons and to render them, our Constitution has vested in him this peculiar and qualified negative.[199] The remaining topic that demands our inquiries, respecting the legislature, relates to the place of its meeting. The Confederation was a government without a capitol, or a seat; a want which seriously impaired its dignity and its efficiency, and subjected it to great inconveniences; at the same time, it was unable to supply the defect. Its Congress, following the example of their predecessors, had continued to assemble at Philadelphia, until June, 1783; when, as we have already seen, in consequence of a mutiny by some of the federal troops stationed in that neighborhood, against which the local authorities failed to protect them, they left that city, and reassembled at Princeton, in the State of New Jersey, in the halls of a college.[200] There, in the following October, a resolution was passed, directing that buildings for the use of Congress should be erected at some suitable place near the falls of the Delaware; for which the right of soil and an exclusive jurisdiction should be obtained.[201] But this was entirely unsatisfactory to the Southern States. They complained that the place selected was not central, was unfavorable to the Union, and unjust to them. They endeavored to procure a reconsideration of the vote, but without success.[202] Several days were then consumed in fruitless efforts to agree on a temporary residence; and at length it became apparent that there was no prospect of a general assent to any one place, either for a temporary or for a permanent seat. The plan of a single residence was then changed, and a resolution was passed, providing for an alternate residence at two places, by directing that buildings for the use of Congress, and a federal town, should also be erected at or near the lower falls of the Potomac, or Georgetown; and that until both places, that on the Delaware and that on the Potomac, were ready for their reception, Congress should sit alternately, for equal periods of not more than one year and not less than six months, at Trenton, the capital of the State of New Jersey, and at Annapolis, the capital of the State of Maryland. The President was thereupon directed to adjourn the Congress, on the 12th of the following November, to meet at Annapolis on the 26th, for the despatch of business. Thither they accordingly repaired, and there they continued to sit until June 3, 1784. A recess followed, during which a committee of the States sat, until Congress reassembled at Trenton, on the 30th of the following October. At Trenton, the accommodations appear to have been altogether insufficient, and the States of South Carolina and Pennsylvania proposed to adjourn from that place.[203] The plan of two capitols in different places was then rescinded,[204] and an ordinance was passed, for the appointment of commissioners to establish a seat of government on the banks of the Delaware, at some point within eight miles above or below the lower falls of that river. Until the necessary buildings should be ready for their reception, the ordinance provided that Congress should sit at the city of New York.[205] When assembled there in January, 1785, they received and accepted from the corporation an offer of the use of the City Hall; and in that building they continued to hold their sessions until after the adoption of the Constitution.[206] It does not appear that any steps were taken under the ordinance of 1784, or under any of the previous resolutions, for the establishment of a federal town and a seat of government at any of the places designated. Whether the Congress felt the want of constitutional power to carry out their project, or whether the want of means, or a difficulty in obtaining a suitable grant of the soil and jurisdiction, was the real impediment, there are now no means of determining. It seems quite probable, however, that, after their removal to the city of New York, they found themselves much better placed than they or their predecessors had ever been elsewhere; and as the discussions respecting a total revision of the federal system soon afterwards began to agitate the public mind, the plan of establishing a seat for the accommodation of the old government was naturally postponed. The plan itself, on paper, was a bold and magnificent one. It contemplated a district not less than two and not more than three miles square, with a "federal house" for the use of Congress; suitable buildings for the executive departments; official residences for the president and secretary of Congress, and the secretaries of foreign affairs, of war, of the marine, and the officers of the treasury; besides hotels to be erected and owned by the States as residences for their delegates. But, for this fine scheme of a federal metropolis, an appropriation was made, which, even in those days, one might suppose, would scarcely have paid for the land required. The commissioners who were to purchase the site, lay out the town, and contract for the erection and completion of all the public edifices,--excepting those which were to belong to the States,--"in an elegant manner," were authorized to draw on the federal treasury for a sum not exceeding one hundred thousand dollars, for the whole of these purposes. If we are to understand it to have been really expected and intended that this sum should defray the cost of this undertaking, we must either be amused by the modest requirements of the Union at that day, or stand amazed at the strides it has since taken in its onward career of prosperity and power. From the porticos of that magnificent Capitol whose domes overhang the Potomac, the eye now looks down upon a city, in which, at a cost of many millions, provision has been made for the central functions of a government, whose daily expenditure exceeds the entire sum appropriated for the establishment of the necessary public buildings and official residences seventy years ago. In truth, however, there is not much reason to suppose that the Congress of the Confederation seriously contemplated the establishment of a federal city. They were too feeble for such an undertaking. They could pass resolutions and ordinances for the purpose, and send them to the authorities of the States;--and if a more decent attention to the wants and dignity of the federal body was excited, it was well, and was probably the effect principally intended. If they had actually proceeded to do what their resolution of 1783 proposed,--to acquire the jurisdiction, as well as the right of soil, over a tract of land,--they must have encountered a serious obstacle in the want of constitutional power. This difficulty seems to have been felt at a later period; for the ordinance of 1784 only directs a purchase of the land, and is silent upon the subject of municipal jurisdiction. It is fortunate, too, on all accounts, that the design was never executed, if it was seriously entertained. The presence of Congress in the city of New York, where the legislature of the State was also sitting, in the winter of 1787, enabled Hamilton to carry those measures in both bodies, which led immediately to the summoning of the national Convention.[207] And it was especially fortunate that this whole subject came before the Convention unembarrassed with a previous choice of place by the old Congress, or with any steps concerning municipal jurisdiction which they might have taken, or omitted. For it was no easy matter, in the temper of the public mind existing from 1783 to 1788, to determine where the seat of the federal, or that of the national government, ought to be placed. The Convention found this an unsettled question, and they wisely determined to leave it so. The cities of New York and Philadelphia had wishes and expectations, and it was quite expedient that the Constitution should neither decide between them, nor decide against both of them. It was equally important that it should not direct whether the seat of the national government should be placed at any of the other commercial cities, or at the capital or within the jurisdiction of any State, or in a district to be exclusively under the jurisdiction of the United States. These were grave questions, which involved the general interests of the Union; but however settled, they would cost the Constitution, in some quarter or other, a great deal of the support that it required, if determined before it went into operation.[208] Temporarily, however, the new government must be placed somewhere within the limits of a State, and at one of the principal cities; and as the Congress then sitting at New York would probably invite their successors to assemble there, it became necessary to provide for a future removal, when the time should arrive for a general agreement on the various and delicate questions involved. The difference of structure, however, between the two branches of the proposed Congress, and the difference of interests that might predominate in each, made a disagreement on these questions probable, if not inevitable; and a disagreement on the place of their future sessions, if accompanied by power to sit in separate places, would be fatal to the peace of the Union and the operation of the government. The committee of detail, therefore, inserted in their draft a clause prohibiting either house, without the consent of the other, from adjourning for more than three days, or to any other place than that at which the Congress might be sitting. Mr. King expressed an apprehension that this implied an authority in both houses to adjourn to any place; and as a frequent change of place had dishonored the federal government, he thought that a law, at least, should be made necessary for a removal. Mr. Madison considered a central position would be so necessary, and that it would be so strongly demanded by the House of Representatives, that a removal from the place of their first session would be extorted, even if a law were required for it. But there was a fear that, if the government were once established at the city of New York, it would never be removed if a law were made necessary. The provision reported by the committee was therefore retained, and it was left in the power of the two houses alone, during a session of Congress, to adjourn to any place, or to any time, on which they might agree.[209] Still it was needful that the Constitution should empower the legislature to establish a seat of government out of the jurisdiction of any of the States, and away from any of their cities. The time might come when this question could be satisfactorily met. The time would certainly come, when the people of the whole Union could see that the dignity, the independence, and the purity of the government would require that it should be under no local influences; when every citizen of the United States, called to take part in the functions of that government, ought to be able to feel that he and his would owe their protection to no power, save that of the Union itself. Some disadvantage, doubtless, might be experienced, in placing the government away from the great centres of commerce. But neither of the principal seats of wealth and refinement was very near to the centre of the Union; and if either of them had been, the necessity for an exclusive local jurisdiction would probably be found, after the adoption of the Constitution, to outweigh all other considerations. Accordingly, when the Constitution was revised for the purpose of supplying the needful provisions omitted in its preparation, it was determined that no peremptory direction on the subject of a seat of government should be given to the legislature; but that power should be conferred on Congress to exercise an exclusive legislation, in all cases, over such district, not exceeding ten miles square, as might, by cession of particular States and the acceptance of Congress, become the seat of government of the United States. This provision has made the Congress of the United States the exclusive sovereign of the District of Columbia, which it governs in its capacity of the legislature of the Union. It enabled Washington to found the city which bears his name; towards which, whatever may be the claims of local attachment, every American who can discern the connection between the honor, the renown, and the welfare of his country, and the dignity, convenience, and safety of its government, must turn with affection and pride. With respect to a regular time of meeting, no instructions had been given to the committee of detail; but they inserted in their draft of the Constitution a clause which required the legislature to assemble on the first Monday of December in every year. There was, however, a great difference of opinion as to the expediency of designating any time in the Constitution, and as to the particular period adopted in the report. But as it was generally agreed that Congress ought to assemble annually, the provision which now stands in the Constitution, which requires annual sessions, and establishes the first Monday in December as the time of their commencement, unless a different day shall be appointed by law, was adopted as a compromise of different views.[210] FOOTNOTES: [130] The first draft of the Constitution, reported by the committee of detail, will be found in the Appendix. [131] A general instruction had been given to report "certain qualifications of property and citizenship," for the executive, the judiciary, and the members of both houses of Congress. [132] It is only necessary to mention the names of Hamilton, Wilson, Robert Morris, and Fitzsimmons, to show the entire impracticability of a rule that would have excluded all persons of _foreign birth_ from being electors, or from being elected to office. [133] I have called the naturalization power a _practical_ control upon the States in the matter of suffrage. It is indirect, but it is effectual; for I believe that no State has ever gone so far as, by express statutory or constitutional provision, to admit to the right of voting persons of foreign birth who are not naturalized citizens of the United States. [134] Art. VI. Sect. 2 of the reported draft. [135] Art. IV. Sect. 2 of the reported draft. [136] New Hampshire, Massachusetts, and Georgia alone voted to retain it. Elliot, V. 404. [137] The Constitution of Pennsylvania had given to foreigners, after two years' residence, all the rights of citizens. There were similar provisions in nearly all of the States. [138] The members who advocated the exemption were G. Morris, Mercer, Gorham, Madison, and Wilson; those who opposed it were Rutledge, Sherman, General Pinckney, Mason, and Baldwin. The States voting for it were Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, 5; the States voting against it were New Hampshire, Massachusetts, Delaware, North Carolina, South Carolina, Georgia, 6. The question elicited a good deal of feeling, and was debated with some warmth. [139] _Ante_, Chap. VII. [140] See _ante_, Chap. VIII. [141] See _post_, as to the compromise on this subject. [142] September 8. [143] Elliot, V. 530. [144] By a majority of one State. Ibid. [145] That is to say, Congress were authorized to apportion one representative to thirty thousand inhabitants, but not to exceed that number. Constitution, Art. I. § 2. [146] Let the reader consult Mr. Hallam's acute and learned discussion of this exclusive privilege of the House of Commons, (Const. Hist., III. 37-46,) and he will probably be satisfied, that, whatever theoretical reasons different writers may have assigned for it, its origin is so obscure, and its precise limits and purposes, deduced from the precedents, are so uncertain, that it can now be said to rest on no positive principles. Its basis is custom; which, having no definite beginning, is now necessarily immemorial. It would not be quite safe, therefore, to reason upon the well-defined provision of our Constitution, as if there were a close analogy between the situation of the two houses of Congress and the two branches of the British legislature. The English example certainly had an influence, in suggesting the plan of such a restriction; but care must be taken not to overlook the peculiar arrangements which made it so highly expedient, that it may be said to have been a necessity, even if there had been no British example. [147] C. Pinckney. Elliot, V. 189. June 13. [148] On the question for restraining the Senate from originating money bills, New York, Delaware, Virginia, _ay_, 3; Massachusetts, Connecticut, New Jersey, Maryland, North Carolina, South Carolina, Georgia, _no_, 7. Ibid. [149] Elliot, V. 285. _Ante_, Chap. VIII. [150] August 8. For striking out, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, Georgia, _ay_, 7; New Hampshire, Massachusetts, Connecticut, North Carolina, _no_, 4. [151] Dr. Franklin, Mason, Williamson, and Randolph (Elliot, V. 395-397.) It would be endless to cite the observations of different members, to show the purposes which they entertained. The reader, who desires to test the accuracy of my inferences in any of these descriptions, must study the debates, and compare, as I have done, the different _phases_ which the subject assumed from time to time. [152] Moved by Randolph, August 13. Elliot, V. 414. [153] Ibid. 420. [154] Moved by Mr. Strong, August 15. Ibid. 427. This was brought forward as an amendment to the article (Art. VI. § 12) which was to define the powers of the two houses. [155] August 31. Elliot, V. 503. [156] Elliot, V. 506, 510, 511, 514. The privilege, as it came from this committee, was confined to "bills for raising revenue"; and these were made subject to "alterations and amendments by the Senate." [157] Ibid. 519. [158] The history of this provision shows clearly that a bill for appropriating money may originate in the Senate. [159] August 9. Elliot, V. 398-401. Massachusetts, Connecticut, Pennsylvania, and Maryland voted in the negative, and the vote of North Carolina was divided. [160] May 31. Elliot, V. 133. [161] Dickinson, Gerry, Mason. [162] Sherman, Luther Martin, Ellsworth. On the naked proposition, moved by Ellsworth, July 2, to allow each State one vote in the Senate, Connecticut, New York, New Jersey, Delaware, Maryland, _ay_, 5; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, _no_, 5; Georgia divided. [163] Maryland alone voted against it. [164] This suggestion was made by Hamilton. Elliot, V. 517. [165] Madison, Hamilton, Wilson, and Read. Elliot, V. 241-245. June 26. [166] Ibid. [167] In Horace Walpole's Memoirs of the Reign of George II., there is an amusing parallel--gravely drawn, however--between the mode in which his father, Sir Robert, "traded for members," and the manner in which Mr. Pelham carried on _his_ corruption. Lord Mahon has called Sir Robert Walpole "the patron and parent of parliamentary corruption." (Hist. of England, I. 268.) But both Mr. Hallam and Mr. Macaulay say that it originated under Charles II., and both admit that it was practised down to the close of the American war. (Hallam's Const. Hist., III. 255, 256, 351-356. Macaulay's Hist. of England, III. 541-549.) The latter, in a very masterly analysis of its origin and history, treats it as a local disease, incident to the growth of the English constitution. It must be confessed, that it had become _chronic_. [168] I am quite aware of the danger of reasoning from the circumstances of one country to those of another, even in the case of England and the United States. But I avail myself, in support of the text, of the authority of a writer, whose high moral tone, and whose profound knowledge of the constitution on which he has written, unite to make it unnecessary that its history should be written again;--I mean, of course, Mr. Hallam. He pronounces it an extreme supposition, and not to be pretended, that Parliament was ever "absolutely, and in all conceivable circumstances, under the control of the sovereign, whether through intimidation or corrupt subservience." "But," he adds, "as it would equally contradict notorious truth to assert that every vote has been disinterested and independent, _the degree of influence which ought to be permitted_, or which has at any time existed, _becomes one of the most important subjects in our constitutional policy_." (Const. Hist., III. 351.) [169] The position and functions of the judiciary, after proper measures have been taken to secure individual capacity and integrity, do admit and require what may be called absolute confidence. That is to say, their action is not only final and conclusive, but it is never legitimately open to the influence of any other department. The reason is, that their action does not proceed from individual discretion, but is regulated by the principles of a moral science, whose existence is wholly independent of the will of the particular judge. Whereas the action of both the executive and the legislative departments, within the limits prescribed to it by the fundamental law, involves the exercise, to a wide extent, of mere individual discretion. The remedy for a failure in the judge to justify the confidence reposed in him is, therefore, only by impeachment. [170] The legislature of Massachusetts had, before Congress recommended the national Convention, instructed its delegates in Congress not to agree to any modification of the fifth Article of the Confederation, which prohibited the members of Congress from _holding_ any office under the United States, for which they or any other person for their benefit could receive any salary, fee, or emolument. This instruction was repealed, by the unqualified manner in which the State accepted the recommendation for a national Convention. But it shows the sentiment of the State on this point, and it also shows the jealousy that was felt. [171] See the assertion by Mr. Mason, and the admission by Mr. Madison, Elliot, V. 230, 232. [172] Butler, Mason, and Rutledge. [173] Two States only, Connecticut and New Jersey, voted for Madison's amendment. June 23. Elliot, V. 230-233. [174] The disqualification, as applied to members of both houses, was incorporated into one clause. Art. VI. § 9 of the draft of the committee of detail. Elliot, V. 377. [175] See the debate, August 14. Elliot, V. 420-425. [176] There was a majority of only one State in favor of this principle. Elliot, V. 506. [177] This provision received a unanimous vote. Ibid. [178] For the history of what have been called place-bills, see Hallam's Const. Hist., III. 255, 256, 351. Macaulay, IV. 336-338, 339, 341, 342, 479, 480, 528. [179] Mr. Justice Story has suggested, that, "if it would not have been safe to trust the heads of departments, as representatives, to the choice of the people, as their constituents, it would have been at least some gain to have allowed them a seat, like territorial delegates, in the House of Representatives, where they might freely debate without a title to vote." (Commentaries on the Constitution, I. § 869.) An officer of an executive department, thus admitted to a seat in Congress, must have been placed there merely in virtue of his office, by a special provision. He could have represented no real constituency, and must therefore have had an anomalous position. A territorial delegate is admitted as the representative of a dependency, somewhat colonial in its nature, whose inhabitants are not on an equal footing with the constituencies of the States. He has therefore no vote. When speaking for the interests of those whom he represents, he is in somewhat the same attitude as counsel admitted to be heard at the bar of the House. Whether the head of an executive department could with dignity and convenience be placed in a similar position, admits at least of grave doubt. [180] Art. I. § 4 of the Constitution. [181] Art. VI. § 1 of the first draft. [182] Madison, Elliot, V. 401, 402. Journal, Elliot, I. 309. [183] Elliot, V. 402. [184] Elliot, V. 247. [185] Art. VI. § 10 of the first draft. Elliot, V. 378. [186] Massachusetts and South Carolina in the negative. [187] See the discussion on Art. VI. § 10 of the first draft. Elliot, V. 425-427. [188] Pennsylvania and Virginia. [189] See Elliot, V. 507, 528, 529. [190] As to the other provisions of the Constitution on this subject, see the Index, _verb._ Impeachment. [191] Elliot, V. 405, 406. Art. I. § 5 of the Constitution. [192] Elliot, V. 406. Constitution, Art. I. §§ 5, 6. [193] Elliot, V. 407. Constitution, Art. I. § 5. [194] Elliot, V. 407. Constitution, Art. I. § 5. [195] Elliot, V. 507, 520. Constitution, Art. I. § 3. [196] Ibid. [197] Art. I. § 2. [198] Constitution, Art. I. § 7. [199] A question has been made, whether it is competent to two thirds of the members _present_ in each house to pass a bill notwithstanding the President's objections, or whether the Constitution means that it shall be passed by two thirds of all the members of each branch of the legislature. The history of the "veto" in the Convention seems to me to settle this question. There was a change of phraseology, in the course of the proceedings on this subject, which indicates very clearly a change of intention. The language employed in the resolutions, in all the stages through which they passed, was, that "The national executive shall have a right to negative any legislative act, which shall not be afterwards passed by _two third parts of each branch of the national legislature_." This was the form of expression contained in the resolutions sent to the committee of detail; and if it had been incorporated into the Constitution, there could have been no question but that its meaning would have been, that the bill must be afterwards passed by two thirds of all the members to which each branch is constitutionally entitled. But the committee of detail changed this expression, and employed one which has a technical meaning, that meaning being made technical by the Constitution itself. Before the committee came to carry out the resolution relating to the President's negative, they had occasion to define what should constitute a "_house_" in each branch of the legislature; and they did so by the provision that a majority of each _house_ shall constitute a quorum to do business. This expression, a "house," or "each house," is several times employed in the Constitution, with reference to the faculties and powers of the two chambers respectively, and it always means, when so used, the constitutional quorum, assembled for the transaction of business, and capable of transacting business. This same expression was employed by the committee when they provided for the mode in which a bill, once rejected by the President, should be again brought before the legislative bodies. They directed it to be returned "_to that_ HOUSE _in which it shall have originated_,"--that is to say, to a constitutional quorum, a majority of which passed it in the first instance; and they then provided, that, if "_two thirds_ of that HOUSE shall agree to pass the bill, it shall be sent, together with the objections, to the other HOUSE,... and if approved by _two thirds_ of that HOUSE, it shall become a law." This change of phraseology, taken in connection with the obvious meaning of the term "house," as used in the Constitution when it speaks of a chamber competent to do business, shows the intention very clearly. It is a very different provision from what would have existed, if the phrase "two third parts of each branch of the national legislature" had been retained. (See Elliot, V. 349, 376, 378, 431 536.) This view will be sustained by an examination of all the instances in which the votes of "two thirds" in either body are required. Thus, "each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, _with the concurrence of two thirds_, expel a member." (Art. I. § 5.) The context of the same article defines what is to constitute a "house," and makes it clear that two thirds of a "house" may expel. That this was the intention is also clear from what took place in the Convention. Mr. Madison objected to the provision as it stood on the report of the committee, by which a mere _majority_ of a quorum was empowered to expel, and, on his motion, the words "with the concurrence of two thirds" were inserted. (Elliot, V. 406, 407.) In like manner, the fifth Article of the Constitution empowers Congress, "_whenever two thirds of both_ HOUSES _shall deem it necessary_," to propose amendments to the Constitution. The term "house" is here used as synonymous with a quorum. It has been suggested, however, that the use of a positive expression, in relation to the action of the Senate upon treaties, throws some doubt upon the meaning of the term "two thirds," as used in other parts of the Constitution. A treaty requires the concurrence of "two thirds of the senators _present_"; and it has been argued that the omission of this term in the other cases shows that two thirds of all the members are required in those cases. But it is to be remembered, that the Constitution makes a general provision as to what shall constitute a house for the transaction of business; that when it means that a particular function shall not be performed by such a house, or quorum, it establishes the exception by a particular provision, as when it requires two thirds of all the States to be present in the House of Representatives on the choice of a President, and makes a majority of all the States necessary to a choice; and that whether the function of the Senate in approving treaties is or is not a part of the business which under the general provision is required to be done in a "house" or quorum consisting of a majority of all the members, the Constitution does not speak of this function as being done by a "house," but it speaks of the "advice and consent of the _Senate_," to be given "by two thirds of the senators _present_." The use of the term "present" was necessary, therefore, in this connection, because no term had preceded it which would guide the construction to the conclusion intended; but in the other cases, the previous use of the term "house," defined to be a majority of all the members, determines the sense in which the term "two thirds" is to be understood, and makes it, as I humbly conceive, two thirds of a constitutional quorum. [200] _Ante_, Vol. I. 220, note, 226, note. [201] October 6, 1783, Journals, VIII. 423. [202] October 8. Ibid. 424, 425. [203] December 10, 11, 1784. Journals, X. 16-18. [204] December 20, 21. Ibid. 23, 24. [205] Passed December 23. Ibid. 29. [206] They removed from it October 2, 1788, on a notice from the Mayor of the city that repairs were to be made. [207] See _ante_, Vol. I. pp. 358-361. [208] See the conversation reported by Madison, Elliot, V. 374. [209] Elliot, V. 409, 410. See _post_, as to the power of the President to assemble and adjourn Congress. [210] Mr. Justice Story has stated in his Commentaries (§ 829), that this clause came into the Constitution in the _revised_ draft, near the close of the Convention, and was silently adopted, without opposition. This is a mistake. The clause was contained in the draft of the committee of detail, and was modified as stated in the text, on the 7th of August, after a full debate. Elliot, V. 377, 383-385. CHAPTER X REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE POWERS OF CONGRESS.--THE GRAND COMPROMISES OF THE CONSTITUTION RESPECTING COMMERCE, EXPORTS, AND THE SLAVE-TRADE. In the examination which has thus far been made of the process of forming the Constitution, the reader will have noticed the absence of any express provisions concerning the regulation of commerce, and the obtaining of revenues. A system of government had been framed, embracing a national legislature, in which the mode of representation alone had been determined with precision. The powers of this legislature had been described only in very general terms. It was to have "the legislative rights vested in Congress by the Confederation," and the power "to legislate in all cases for the general interests of the Union, and also in those to which the States were separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation." It might undoubtedly have been considered that, as the want of a power in the Confederation to make uniform commercial regulations affecting the foreign and domestic relations of the States was one of the principal causes of the assembling of this Convention, such a power was implied in the terms of the resolution, which had declared the general principles on which the authority of the national legislature ought to be regulated. Still, it remained to be determined what kind of regulation of commerce was required by "the general interests of the Union," or how far the States were incompetent, by their separate legislation, to deal with the interests of commerce so as to promote "the harmony of the United States." In the same way, a power to obtain revenues might be implied on the same general principles. But whether the commercial power foreshadowed in these broad declarations was to be limited or unlimited; whether there were any special objects or interests to which it was not to extend; and whether the revenues of the government were to be derived from imposts laid at pleasure upon imports or exports, or both; whether they might be derived from excises on the manufactures or produce of the country; whether its power of direct taxation was to be exercised under further limitations than those already agreed upon for the apportionment of direct taxes among the States;--all these details were as yet entirely unsettled. Two subjects, one of which might fall within a general commercial power, and the other within a general power to raise revenues, had already been incidentally alluded to, and both were likely to create great embarrassment. General Pinckney had twice given notice that South Carolina could not accede to the new Union proposed, if it possessed a power to tax exports.[211] It had also become apparent, in the discussions and arrangements respecting the apportionment of representatives, that the possible encouragement of the slave-trade, which might follow an admission of the blacks into the rule of representation, was one great obstacle, in the view of the Northern States, to such an admission; and at the same time, that it was very doubtful whether all the Southern States would surrender to the general government the power to prohibit that trade.[212] The compromise which had already taken place on the subject of representation had settled the principles on which that difficult matter was to be arranged. But the power to increase the slave populations by continued importation had not been agreed to be surrendered; and unless some satisfactory and reasonable adjustment could be made on this subject, there could be no probability that the Constitution would be finally ratified by the people of the Northern States.[213] It is necessary, therefore, to look carefully at these two subjects, namely, the taxation of exports and the prohibition of the slave-trade. That a power to lay taxes or duties on exported products belongs to every government possessing a general authority to select the objects from which its revenues are to be derived, is a proposition which admits of little doubt. It is not to be doubted, either, that it is a power which may be attended with great benefit, not only for purposes of revenue, but for the encouragement of manufactures; and it is clear that it may often be used as a means of controlling the commercial policy of other countries, when applied to articles which they cannot produce, but which they must consume. A government that is destitute of this power is not armed with the most complete and effectual means for counteracting the regulations of foreign countries that bear heavily upon the industrial pursuits of its people, although it may have other and sufficient sources of revenue; and therefore, until an unrestricted commercial intercourse and a free exchange of commodities become the general policy of the world, to deny to any government a power over the exported products of its own country, is to place it at some disadvantage with all commercial nations that possess the power to enhance the price of commodities which they themselves produce. But, on the other hand, the practice of taxing the products of a country, as they pass out of its limits to enter into the consumption of other nations, can be beneficially exercised only by a government that can select and arrange the objects of such taxation so as to do nearly equal justice to all its producing interests. If, for example, the article of wine were produced only by a single province of France, and all the other provinces produced no commodities sought for by other nations, an export duty upon wine would fall wholly upon the single province where it was produced, and would place its production at an unequal competition with the wines of other countries. But France produces a variety of wines, the growth of many different provinces; and therefore, in the adjustment of an export duty upon wines, the government of that country, after a due regard to the demand for each kind or class of this commodity, has chiefly to consider the effect of such a tax in the competition with the same commodity produced by other nations. At the time of the formation of the Constitution of the United States, there was not a single production, common to all the States, of sufficient importance to become an article of general exportation. Indeed, there were no commodities produced for exportation by so many of the States, that a tax or duty imposed upon them on leaving the country would operate with anything like equality even in different sections of the Union. In fact, from the extreme northern to the extreme southern boundary of the Union, the exports were so various, both in kind and amount, that a tax imposed on an article the produce of the South could not be balanced by a tax imposed upon an article produced or manufactured at the North. How, for example, could the burden of an export duty on the tobacco of Virginia, or the rice or indigo of South Carolina, be equalized by a similar duty on the lumber or fish or flour of other States? Possibly, after long experience and the accumulation of the necessary statistics, an approach towards an equality of such burdens might have been made; but it could never have become more than an unsatisfactory approximation; and while the effect of such a tax at one end of the Union on the demand for the commodity subjected to it might be estimated,--because the opportunity for other nations to supply themselves elsewhere might be so precise as to be easily measured,--its effect at the other end of the Union, on another commodity, might be wholly uncertain, because the demand from abroad might be influenced by new sources of supply, or might from accidental causes continue to be nearly the same as before. However theoretically correct it might have been, therefore, to confer on the general government the same authority to tax exports as to impose duties on imported commodities,--and the argument for it drawn from the necessities for revenue and protection of manufactures was exceedingly strong,--the actual situation of the country made it quite impracticable to obtain the consent of some of the States to a full and complete revenue power. Several of the most important persons in the Convention were strongly in favor of it. Washington, Madison, Wilson, Gouverneur Morris, and Dickinson are known to have held the opinion, that the government would be incomplete, without a power to tax exports as well as imports. But the decided stand taken by South Carolina, whose exports for a single year were said by General Pinckney to have amounted to £600,000, the fruit of the labor of her slaves, probably led the committee of detail to insert in their report of a draft of the Constitution a distinct prohibition against laying any tax or duty on articles exported from any State. A similar question, in relation to the extent of the commercial power, was destined to arise out of the relations of the different States to the slave-trade. If the power to regulate commerce, that might be conferred upon the general government, was to be universal and unlimited, it must include the right to prohibit the importation of slaves. If the right to sanction or tolerate the importation of slaves, which, like all other political rights, belonged to the people of the several States as sovereign communities, was to be retained by them as an exception from the commercial power which they might confer upon the national legislature, that exception must be clearly and definitely established. For several reasons, the question was necessarily to be met, as soon as the character and extent of the commercial power should come into discussion. While the trade had been prohibited by all the other States, including Virginia and Maryland, it had only been subjected to a duty by North Carolina, and was subjected to a similar discouragement by South Carolina and Georgia. The basis of representation in the national legislature, in which it had been agreed that the slaves should be included in a certain ratio, created a strong political motive with the Northern States to obtain for the general government a power to prevent further importations. It was fortunate that this motive existed; for the honor and reputation of the country were concerned to put an end to this traffic. No other nation, it was true, had at that time abolished it; but here were the assembled States of America, engaged in framing a Constitution of government, that ought, if the American character was to be consistent with the principles of the American Revolution, to go as far in the recognition of human rights as the circumstances of their actual situation would admit. What was practicable to be done, from considerations of humanity, and all that could be successfully done, was the measure of their duty as statesmen, admitted and acted upon by the framers of the Constitution, including many of those who represented slaveholding constituencies, as well as the representatives of States that had either abolished both the traffic in slaves and the institution itself, or were obviously destined to do it. This just and necessary rule of action, however, which limited their efforts to what the actual circumstances of the country would permit, made a clear distinction between a prohibition of the future importation of slaves, and the manumission of those already in the country. The former could be accomplished, if the consent of the people of the States could be obtained, without trenching on their sovereign control over the condition of all persons within their respective limits. It involved only the surrender of a right to add to the numbers of their slaves by continued importations. But the power to determine whether the slaves then within their limits should remain in that condition, could not be surrendered by the people of the States, without overturning every principle on which the system of the new government had been rested, and which had thus far been justly regarded as essential to its establishment and to its future successful operation. It is not, therefore, to be inferred, because a large majority of the Convention sought for a power to prohibit the increase of slaves by further importation, that they intended by means of it to extinguish the institution of slavery within the States. So far as they acted from a political motive, they designed to take away the power of a State to increase its congressional representation by bringing slaves from Africa; and so far as they acted from motives of general justice and humanity, they designed to terminate a traffic which never has been and never can be carried on without infinite cruelty and national dishonor. That the individuals of an inferior race already placed in the condition of servitude to a superior one may, by the force of necessity, be rightfully left in the care and dominion of those on whom they have been cast, is a proposition of morals entirely fit to be admitted by a Christian statesman. That new individuals may rightfully be placed in the same condition, not by the act of Providence through the natural increase of the species, but by the act of man in transferring them from distant lands, is quite another proposition. The distinction between the two, so far as a moral judgment is concerned with the acts of the framers of the Constitution upon the circumstances before them, defines the limits of duty which they intended to recognize. No satisfactory means exist for determining to what extent a continuance of the importation of slaves was necessary, in an economical point of view, to the States of North Carolina, South Carolina, and Georgia. There is some reason to suppose that the natural increase of the slave population in Virginia at that period more than supplied her wants; and perhaps the less healthy regions of the more southern States may have still required foreign supplies in order to keep the lands already occupied under cultivation, or to make new lands productive.[214] All that is historically certain on this subject is, that the representatives of the three most southerly States acted upon the belief, that their constituents would not surrender the right to continue the importation of slaves, although they might, if left to themselves, discontinue the practice at some future time. These declarations, however, had not been made at the time when the principles on which the Constitution was to be framed were sent to the committee of detail. Nothing had yet occurred in the Convention, to make it certain that the power to import would be retained by any of the States. The committee of detail had, therefore, so far as the action of the Convention had gone, an unrestricted choice between a full and a limited commercial power. They consisted of three members from non-slaveholding and two from slaveholding States;[215] but as one of them, Mr. Rutledge of South Carolina, was one of the persons who subsequently announced to the Convention the position that would be taken by his own State and by North Carolina and Georgia, there can be no doubt that he announced the same determination in the committee. In their report, they shaped the commercial power accordingly. They provided that the legislature of the United States should have power to lay and collect taxes, duties, imposts, and excises; and to regulate commerce with foreign nations, and among the several States. But they also reported several restrictions upon both the revenue and commercial powers. Besides providing, in accordance with the ninth resolution adopted by the Convention, that direct taxation should be proportioned among the States according to the census, to be taken by a particular rule, they added the further restrictions, that no tax or duty should be laid by the national legislature on articles exported from any State, nor on the migration or importation of such persons as the several States might think proper to admit; that such migration or importation should not be prohibited; that no capitation tax should be laid, unless in proportion to the census; and that no navigation act should be passed without the assent of two thirds of the members present in each house. That the new government must have a direct revenue power, was generally conceded, and it was also generally admitted that it must have a power to regulate commerce with foreign countries. But the idea was more or less prevalent among the Southern statesmen, that the interest of their own States, considered as a distinct and separate interest from that of the commercial States, did not require a regulation of commerce by the general government. It is not easy to determine to what extent these views were correct. Taking into consideration nothing more than the fact, that the staple production of Virginia was tobacco, as it was also partly that of North Carolina; that rice and indigo were the great products of South Carolina and Georgia; and that neither of these four States possessed a large amount of shipping;--it might certainly be considered that an unrestricted foreign intercourse was important to them. But, on the other hand, if those States, by clothing the Union with a power to regulate commerce, were likely to subject themselves to a temporary rise of freights, the measures which might have that effect would also tend directly to increase Southern as well as Northern shipping, to augment the commercial marine of the whole country, and thus to increase its general maritime strength. The general security thus promoted was as important to one class of States as to another. The increase of the coasting trade would also increase the consumption of the produce of all the States. The great benefit, however, to be derived from a national regulation of commerce,--a benefit in which all the States would equally share, whatever might be their productions,--was undoubtedly the removal of the existing and injurious retaliations which the States had hitherto practised against each other.[216] Still, these advantages were indirect or incidental. The immediate and palpable commercial interests of different portions of the Union, regarded in the mass, were not identical; and it was in one sense true, that the power of regulating commerce was a concession on the part of the Southern States to the Northern, for which they might reasonably expect equivalent advantages, or which they might reasonably desire to qualify by some restriction. On the reception of the report of the committee of detail, and when the article relating to representation was reached, the consequences of agreeing that the slaves should be computed in the rule, taken in connection with an unrestrained power in the States to increase the slave populations by further importation, and with the exemption of exports from taxation, became more prominent, and more likely to produce serious dissatisfaction. The concession of the slave representation had been made by some of the Northern members, in the hope that it might be the means of strengthening the plan of government, and of procuring for it full powers both of revenue and of commercial regulation. But now, it appeared that, as to two very important points, the hands of the national legislature were to be absolutely tied. The importation of slaves could not be prohibited; exports could not be taxed. These restrictions seemed to many to have an inevitable tendency to defeat the great primary purposes of a national government. All must agree, that defence against foreign invasion and against internal sedition was one of the principal objects for which such a government was to be established. Were all the States then to be bound to defend each, and was each to be at liberty to introduce a weakness which would increase both its own and the general danger, and at the same time to withhold the compensation for the burden? If slaves were to be imported, why should not the exports produced by their labor supply a revenue, that would enable the general government to defend their masters? To refuse it, was so inequitable and unreasonable, said Rufus King, that he could not assent to the representation of the slaves, unless exports should be taxable;--perhaps he could not finally consent to it, under any circumstances.[217] Gouverneur Morris, with his accustomed ardor, went further still, and insisted on re-opening the subject of representation, now that the other features of the system were to be made to favor the increase of slaves, and to throw the burdens of maintaining the government chiefly upon the Northern States. It was idle, he declared, to say that direct taxation might be levied upon the slaveholding States in proportion to their representative population: for the general government could never stretch out its hand, and put it directly into the pockets of the people, over so vast a country. Its revenues must be derived from exports, imports, and excises. He therefore would not consent to the sacrifices demanded, and moved the insertion of the word "free" before the word "inhabitants," in the article regulating the basis of representation.[218] But there were few men in the Convention bold enough to hazard the consequences of unsettling an arrangement, which had cost so much labor and anxiety; which had been made as nearly correct in theory as the circumstances of the case would allow; and which was, in truth, the best practical solution of a great difficulty. Mr. Morris's motion received the vote of a single State only.[219] The great majority of the delegations considered it wiser to go on to the discussion of the proposed restrictions upon the revenue and commercial powers, in the hope that each of them might be considered and acted upon with reference to the true principles applicable to the subject, or that the whole might be adjusted by some agreement that would not disturb what had been settled with so much difficulty. The great embarrassment attending the proposed restriction upon the taxation of exports was, that, however the question might be decided, it would probably lose for the new government the support of some important members of the Convention. Those who regarded it as right that the government should have a complete revenue power, contended for the convenience with which a large staple production, in which America was not rivalled in foreign markets, could be made the subject of an export tax, that would in reality be paid by the foreign consumer. On the other side, the very facility with which such objects could be selected for taxation alarmed the States whose products presented the best opportunity for exercising this power. They did not deny the obvious truth, that the tax must ultimately fall on the consumer; but they considered it enough to surrender the power of levying duties upon imports, without giving up the control which each State now had over its own productions.[220] But there was also another question involved in the form in which the proposed restriction had been presented. It prohibited the national government from taxing exports, but imposed no restraint in this respect upon the power of the States. If they were to retain the power over their own exports, they would have the same right to tax the products of other States exported through their maritime towns. This power had been used to a great extent, and always oppressively. Virginia had taxed the tobacco of North Carolina; Pennsylvania had taxed the products of Maryland, of New Jersey, and of Delaware; and it was apparent, that every State, not possessed of convenient and accessible seaports, must hereafter submit to the same exactions, if this power were left unrestrained. Give it to the general government, said the advocates for a full revenue power, and the inconveniences attending its exercise by the separate States will be avoided. But those who were opposed to the possession of such a power by the general government, apprehended greater oppression by a majority of the States acting through the national legislature, than they could suffer at the hands of individual States. The eight Northern States, they said, had an interest different from the five Southern States, and in one branch of the legislature the former were to have thirty-six votes, and the latter twenty-nine. From considerations like these, united with others which would render it nearly impracticable to select the objects of such taxation so as to make it operate equally, the restriction prevailed.[221] The revenue power was thus shorn of one great branch of taxation, which, however difficult it might be to practise it throughout such a country as this, is part of the prerogatives of every complete government, which was believed by many to be essential to the success of the proposed Constitution, but which was resisted successfully by others, as oppressive to their local and peculiar interests. Was the commercial power to experience a like diminution from the full proportions of a just authority over the external trade of the States? Were the States, whose great homogeneous products, derived from the labor of slaves, would supply no revenue to the national treasury, to be left at liberty to import all the slaves that Africa could furnish? Were the commercial States to see the carrying trade of the country--embracing the very exports thus exempted from burdens of every kind, and thus stimulated by new accessions of slaves--pass into foreign bottoms, and be unable to protect their interests by a majority of votes in the national legislature? Was there to be no advantageous commercial treaty obtained from any foreign power, unless the measures needful to compel it could gain the assent of two thirds of Congress? Was the North to be shut out for ever from the West India trade, and was it at the same time to see the traffic in slaves prosecuted without restraint, and without the prospect or the hope of a final termination? These were grave and searching questions. The vote exempting exports from the revenue power could not be recalled. It had passed by a decided majority of the States; and many suffrages had been given for the exemption, not from motives of a sectional nature, but on account of the difficulty that must attend the exercise of the power, and from the conviction that such taxation is incorrect in principle. So far, therefore, the Southern States had gained all that they desired in respect to the revenue power, and now three of them, with great firmness, declared that the question in relation to the commercial power was, whether they should or should not be parties to the Union. If required to surrender their right to import slaves, North Carolina, South Carolina, and Georgia would not accept the Constitution, although they were willing to make slaves liable to an equal tax with other imports.[222] It was also manifest, that the clause which required a navigation act to be passed by two thirds of each house, was to be insisted on by some, although not by all, of the Southern members. Thus was a dark and gloomy prospect a second time presented to the framers of the Constitution. If, on the one side, there were States feeling themselves bound as a class to insist on certain concessions, on the other side were those by whom such concessions could not be made. The chief motive with the Eastern, and with most of the Northern States, in seeking a new union under a new frame of government, was a commercial one. They had suffered so severely from the effects of the commercial policy of England and other European nations, and from the incapacity of Congress to control that policy, that it had become indispensable to them to secure a national power which could dictate the terms and vehicles of commercial intercourse with the whole country. Cut off from the British West India trade by the English Orders in Council, the Eastern and Middle States required other means of counteracting those oppressive regulations than could be found in their separate State legislation, which furnished no power whatever for obtaining a single commercial treaty.[223] Besides these considerations, which related to the special interests of the commercial States, the want of a navy, which could only be built up by measures that would encourage the growth of the mercantile marine, and which, although needed for the protection of commerce, was also required for the defence of the whole country, made it necessary that the power to pass a navigation act should be burdened with no serious restrictions. The idea of requiring a vote of two thirds in Congress for the passage of a navigation act, founded on the assumed diversity of Northern and Southern, or the commercial and the planting interests, proceeded upon the necessity for a distinct protection of the latter against the former, by means of a special legislative check. To a certain extent, as I have already said, these interests, when regarded in their aggregates, offered a real diversity. But it did not follow that this peculiar check upon the power of a majority was either a necessary or an expedient mode of providing against oppressive legislation. In every system of popular government, there are great disadvantages in departing from the simple rule of a majority; and perhaps the principle which requires the assent of more than a majority ought never to be extended to mere matters of legislation, but should be confined to treaty stipulations, and to those fundamental changes which affect the nature of the government and involve the terms on which the different portions of society are associated together. It was undoubtedly the purpose of those who sought for this particular restriction, to qualify the nature of the government, in its relation to the interests of commerce. But the real question was, whether there existed any necessary reason for placing those interests upon a different footing from that of all other subjects of national legislation. The operation of the old rule of the Confederation, which required the assent of nine States in Congress to almost all the important measures of government, many of which involved no fundamental right of separate States, had revealed the inconveniences of lodging in the hands of a minority the power to obstruct just and necessary legislation. If, indeed, it was highly probable that the power, by being left with a majority, would be abused,--if the interests of the Eastern and Middle States were purely and wholly commercial, and would be likely so to shape the legislation of the country as to encourage the growth of its mercantile marine, at the expense of other forms of industry and enterprise, and no other suitable and efficient checks could be found,--then the restriction proposed might be proper and necessary. But in truth the separate interests of the Eastern and Middle States, when closely viewed, were not in all respects the same. Connecticut and New Jersey were agricultural States. New York and Pennsylvania, although interested in maritime commerce, were destined to be great producers of the most important grains. Maryland, although a commercial, was also an agricultural State. The new States likely to be formed in the West would be almost wholly agricultural, and would have no more shipping than might be required to move the surplus products of their soil upon their great inland lakes towards the shores of the Atlantic. All these States, existing and expectant, were interested to obtain commercial treaties with foreign countries; all needed the benefits of uniform commercial regulations; but they were not all equally interested in a high degree of encouragement to the growth of American shipping, by means of a stringent navigation act, that would bear heavily upon the Southern planter. Not only was there a very considerable protection against the abuse of its power by a sectional majority, in these more minute diversities of interest, but there were also two very efficient legislative checks upon that power already introduced into the government. If an unjust and oppressive measure had commanded a majority in the House, it might be defeated in the Senate, or, if that check should fail, it might be arrested by the executive. It had, nevertheless, been made part of the limitations upon the commercial power, embraced in the report of the committee of detail, that a navigation act should require a vote of two thirds of both branches of the legislature. The vote which adopted the prohibition against taxes on exports, taken on the 21st of August, was followed, on that day and the next, by an excited debate on the taxation of the slave-trade, in which the three States of Georgia, North Carolina, and South Carolina made the limitation upon the power of the Union over this traffic the condition of their accepting the Constitution. This debate was closed by the proposition of Gouverneur Morris, to refer the whole subject to a committee of one from each State, in order that the three matters of exports, the slave-trade, and a navigation act might form a bargain or compromise between the Northern and the Southern States.[224] But the prohibition against taxing exports had already been agreed to, and there remained to be committed only the proposed restriction against taxing or prohibiting the migration or importation of such persons as the States might see fit to admit, the restriction which required a capitation tax to conform to the census, and the proposed limitation upon the power to pass a navigation act. Thus, in effect, the questions to come before this committee were, whether the slave-trade should be excepted from both the commercial and revenue powers of the general government, and whether the commercial power should be subjected to a restriction which required a vote of two thirds in dealing with the commercial interests of the Union. We know very little of the deliberations of this committee; but as each State was equally represented in it, and as the position of the different sectional objects is quite clear, we can have no difficulty in forming an opinion as to the motives and purposes of the settlement which resulted from their action, or in obtaining a right estimate of the result itself. In the first place, then, we are to remember the previous concessions already made by the Northern States, and the advantages resulting from them. These concessions were the representation of the slaves and the exemption of exports from taxation. If the slaves had not been included in the system of representation, the Northern States could have had no political motive for acquiring the power to put an end to the slave-trade. If the exports of their staple productions had not been withdrawn from the revenue power, the Southern States could have had no very strong or special motive to draw them into the new Union; but with such an exemption, they could derive benefits from the Constitution as great as those likely to be enjoyed by their Northern confederates. Both parties, therefore, entered the final committee of compromise with a strong desire to complete the Union and to establish the new government. The Northern States wished for a full commercial power, including the slave-trade and navigation laws, to be dependent on the voices of a majority in Congress. The Southern States struggled to retain the right to import slaves, and to limit the enactment of navigation laws to a vote of two thirds. Both parties could be gratified only by conceding some portion of their respective demands. If the Northern States could accept a future, instead of an immediate, prohibition of the slave-trade, they could gain ultimately a full commercial power over all subjects, to be exercised by a national majority. If the Southern States could confide in a national majority, so far as to clothe them with full ultimate power to regulate commerce, they could obtain the continuance of the slave-trade for a limited period. Such was in reality the adjustment made and recommended by the committee. They proposed that the migration or importation of such persons as the several States then existing might think proper to admit, should not be prohibited by the national legislature before the year 1800, but that a tax or duty might be imposed on such persons, at a rate not exceeding the average of the duties laid on imports; that the clause relating to a capitation tax should remain; and that the provision requiring a navigation act to be passed by a vote of two thirds, should be stricken out.[225] No change was made in this arrangement, when it came before the Convention, except to substitute the year 1808 as the period at which the restriction on the commercial power was to terminate, and to provide for a specific tax on the importation of slaves, not exceeding ten dollars on each person.[226] The remaining features of this settlement, relating to a capitation tax and a navigation act, were sanctioned by a large majority of the States.[227] Thus, by timely and well-considered concessions on each side, was the slave-trade brought immediately within the revenue power of the general government, and also, at the expiration of twenty years, within its power to regulate commerce. By the same means, the commercial power, without any other restriction than that relating to the temporary toleration of the importation of slaves, was vested in a national majority. This result at once placed the foreign slave-trade by American vessels or citizens within the control of the national legislature, and enabled Congress to forbid the carrying of slaves to foreign countries; and at the end of the year 1808, it brought the whole traffic within the reach of a national prohibition.[228] Too high an estimate cannot well be formed, of the importance and value of this final settlement of conflicting sectional interests and demands. History has to thank the patriotism and liberality of the Northern States, for having acquired, for the government of the Union, by reasonable concessions, the power to terminate the African slave-trade. We know, from almost every day's experience since the founding of the government, that individual cupidity, which knows no geographical limits, which defies public opinion whether in the North or in the South, required and still requires the restraint and chastisement of national power. The separate authority of the States would have been wholly unequal to the suppression of the slave-trade: for even if they had all finally adopted the policy of a stringent prohibition, without a navy, and without treaties, they could never have contended against the bold artifice and desperate cunning of avarice, stimulated by the enormous gains which have always been reaped in this inhuman trade. The just and candid voice of History has also to thank the Southern statesmen who consented to this arrangement, for having clothed a majority of the two houses of Congress with a full commercial power. They felt, and truly felt, that this was a great concession. But they looked at what they had gained. They had gained the exemption of their staple productions from taxation as objects of foreign commerce; the enumeration of their slaves in the basis of Congressional representation; and the settlement of the slave-trade upon terms not offensive to State pride. They had also gained the Union, with its power to maintain an army and a navy,--with its power and duty to protect them against foreign invasion and domestic insurrection, and to secure their republican constitutions. They looked, therefore, upon the grant of the power to regulate commerce by the ordinary modes of legislation, in its relations to the interests of a great empire, whose foundations ought to be laid broadly and deeply on the national welfare.[229] They saw that the Revolution had cost the Eastern States enormous sacrifices of commercial wealth, and that the weakness of the Confederation had destroyed the little remnant of their trade.[230] They saw and admitted the necessity for an unrestrained control over the foreign commerce of the country, if it was ever to rise from the prostrate condition in which it had been placed by foreign powers. They acted accordingly; and by their action, they enabled the States of North Carolina, South Carolina, and Georgia to enter the new Union without humiliation and without loss.[231] Thus was accomplished, so far as depended on the action of this Convention, that memorable compromise, which gave to the Union its control over the commercial relations of the States with foreign nations and with each other. An event so fraught with consequences of the utmost importance cannot be dismissed without some of the reflections appropriate to its consideration. Nature had marked America for a great commercial nation. The sweep of the Atlantic coast, from the Bay of Fundy to the Gulf of Florida, comprehending twenty degrees of latitude, broken into capacious bays and convenient harbors, and receiving the inward flow of the sea into great navigable rivers that stretched far into the interior, presented an access to the ocean not surpassed by that of any large portion of the globe. This long range of sea-coast embraced all the varieties of climate that are found between a hard and sterile region, where summer is but the breath of a few fervid weeks, and the ever blooming tropics, where winter is unknown. The products of the different regions, already entering, or fit to enter, into foreign commerce, attested as great a variety of soils. The proximity of the country to the West Indies, where the Eastern and the Middle States could find the best markets for some of their most important exports, afforded the promise of a highly lucrative trade; while the voyage to the East Indies from any American port could be performed in as short a time as from England or Holland or France. In the South, there were great staples already largely demanded by the consumption of Europe. In the North, there were fisheries of singular importance, capable of furnishing enormous additions to the wealth of the country. Beyond the Alleghanies, the West, with its vast internal waters and its almost unequalled fertility, had been opened to a rapid emigration, which was soon to lay the foundation of new States, destined to be the abodes of millions of men. The very variety and extent of these interests had for many years occasioned a struggle for some mode of reconciling and harmonizing them all. But divided into separate governments, the commercial legislation of the States could produce nothing but the confusion and uncertainty which retaliation necessarily engenders. Different systems and rates of revenue were in force in seaports not a hundred miles apart, through which the inhabitants of other jurisdictions were obliged to draw their supplies of foreign commodities, and to export their own productions. The paper-money systems of the several States made the commercial value of coin quite different in different places, and gave an entirely insecure basis to trade. The reader, who has followed me through the preceding volume, has seen how the people of the United States, from the earliest stages of the Revolution, struggled to free themselves from these embarrassments;--how they commenced with a jealous reservation of State authority over all matters of commerce and revenue; how they undertook to supply the necessities of a central government by contributions which they had not the power to make good, because their commercial condition did not admit of heavy taxation; how they endeavored to pass from this system to a grant of temporary revenues and temporary commercial regulation, to be vested in the federal Union; how they found it impracticable to agree upon the principles and details of a temporary power; how they turned to separate commercial leagues, each with its immediate neighbors, and were disappointed in the result or frustrated in the effort; and how at last they came to the conception of a full and irrevocable surrender of commercial and fiscal regulations to a central legislature, that could grasp the interests of the whole country and combine them in one harmonious system. The influence of the commercial and revenue powers, thus obtained by the general government, on the condition of this country, has far exceeded the most sanguine hopes which the framers of the Constitution could have indulged. No one can doubt that the people of America owe to it both the nature and the degree of their actual prosperity;--and as the national prosperity has given them importance in the world, it is just and accurate to say, that commerce and its effects have elevated republican institutions to a dignity and influence which they have attained through no other of the forms or the spirit of society. Let the reader consider the interests of commerce, in their widest relations with all that they comprehend,--the interests of the merchant, the artisan, and the tiller of the soil being alike involved,--as the chief purpose of the new government given to this Union; let him contemplate this as the central object around which are arranged almost all the great provisions of the Constitution of the United States;--and he will see in it a wonderfully harmonious and powerful system, created for the security of property, and the promotion of the material welfare and prosperity of individuals, whatever their occupation, employment, or condition. That such a code of civil government should have sprung from the necessities of commerce, is surely one of the triumphs of modern civilization. It is not to be denied, that the sedulous care with which this great provision was made for the general prosperity has had the effect of impressing on the national character a strong spirit of acquisition. The character of a people, however, is to be judged not merely by the pursuit or the possession of wealth, but chiefly by the use which they make of it. If the inhabitants of the United States can justly claim distinction for the benevolent virtues; if the wealth that is eagerly sought and rapidly acquired is freely used for the relief of human suffering; if learning, science, and the arts are duly cultivated; if popular education is an object of lavish expenditure; if the institutions of religion, though depending on a purely voluntary support, are provided for liberally, and from conscientious motives;--then is the national spirit of acquisition not without fruits, of which it has no need to be ashamed. The objection, that the Constitution of the United States, and the immense prosperity which has flowed from it, were obtained by certain concessions in favor of the institution of slavery, results from a merely superficial view of the subject. If we would form a right estimate of the gain or loss to human nature effected by any given political arrangement, we must take into consideration the antecedent facts, and endeavor to judge whether a better result could have been obtained by a different mode of dealing with them. We shall then be able to appreciate the positive good that has been gained, or the positive loss that has been suffered. The prominent facts to be considered in this connection are, in the first place, that slavery existed, and would long exist, in certain of the States; and that the condition of the African race in those States was universally regarded as a matter of purely local concern. It could not in fact have been otherwise; for there were slaves in every State excepting Massachusetts and New Hampshire; and among the other States in which measures had been, or were likely to be, taken for the removal of slavery, there was a great variety of circumstances affecting the time and mode in which it should be finally extinguished. As soon as the point was settled, in the formation of the Constitution of the United States, that the State governments were to be preserved, with all their powers unimpaired which were not required by the objects of the national government to be surrendered to the Union, the domestic relations of their inhabitants with each other necessarily remained under their exclusive control. Those relations were not involved in the purposes of the Federal Union. So soon, also, as this was perceived and admitted, it became a necessary consequence of the admission, that the national authority should guarantee to the people of each State the right to shape and modify their own social institutions; for without this principle laid at the foundation of the Union, there could be no peace or security for such a mixed system of government. In the second place, we have to consider the fact, that, among the political rights of the States anterior to the national Constitution, was the right to admit or to prohibit the further importation of slaves;--a traffic not then forbidden by any European nation to its Colonies, but which had been interdicted by ten of the American States. The transfer of this right to the Federal Union was a purely voluntary act; it was not strictly necessary for the purposes for which it was proposed to establish the Constitution of the United States; although there were political reasons for which a part of the States might wish to acquire control over this subject, as well as moral reasons why all the States should have desired to vest that control in the general government. Three of the States, however, as we have seen, took a different view of their interest and duty, and declined to enter the new Union unless this traffic should be excepted from the power over commerce for a period of twenty years. It is quite plain, that, if these facts had been met and dealt with in a manner different from the settlement that was actually made, one of two consequences must have ensued;--either no Constitution at all could have been adopted, or there would have been a Union of some kind, from which three at least of the States must have been excluded. If the first, by far the most probable contingency, had happened, a great feebleness and poverty of society must have continued to be the lot of all these States; there must have been perpetual collisions and rival confederacies; there certainly would have been an indefinite continuance of the slave-trade, accompanied and followed by a great external pressure upon the States which permitted it, which would have led to a war of races, or to a frightful oppression of the slaves. Most of these evils would have followed the establishment of a partial confederacy. On the other hand, we are to consider what has been gained to humanity by the establishment of the Constitution. The extinction of the slave-trade, followed by a public opinion with reference to it that is as strong and reliable in the Southern as in the Northern States, was purchased at a price by no means unreasonable, when compared with the magnitude of the acquisition. The great prosperity and high civilization which are due to the commercial power of the Constitution have been a vast benefit to both races;--to the whites by the superior refinement they have created, and to the blacks by the gradual but certain amelioration of their condition. The social strength and security occasioned by constantly increasing wealth, combined with the acknowledgment and establishment of the doctrine which makes every State the uncontrolled arbiter of the domestic condition of its inhabitants, has put it in the power of those who have charge of the negro to deal prudently and wisely with their great problem, without the interference of those who could benefit neither race by their intervention. This, in every rational view of the subject, cannot but be regarded as one of the chief blessings conferred by the Constitution of the United States. It has made emancipation possible, where otherwise it would have been impossible, or where it could have been obtained only through the horrors of both servile and civil war. It has enabled local authorities to adapt changes to local circumstances. Its beneficent influences may be traced in the laws of the States, in the records of their jurisprudence, and in the advanced and advancing condition of their public sentiment; and he who should follow those influences in all their details, and count the sum of what it has effected for the moral and physical well-being of the subjected race, would find cause for devout gratitude to the Ruler of the Universe. Great as has been the increase of slaves in the United States during the last seventy years, there can be no question that the general improvement of their condition has been equally great, and that it has kept pace with the increasing prosperity of the country. That prosperity has enabled individual enterprise and benevolence to plant a colony upon the coast of Africa, which, after centuries of discipline and education, may yet be the means of restoring to its native soil, as civilized and Christian men, a race that came to us as heathens and barbarians. Surely, then, with such results to look back upon, with such hopes in the future, the patriot and the Christian can have no real cause for regret or complaint, that in a system of representative government, made necessary by controlling circumstances, the unimportant anomaly should be found, of a representation of men without political rights or social privileges; or that the question of emancipation, either for the mass or the individual, should be carefully secured to local authority; or even that the slave-trade should have been prosecuted for a few years, to be extinguished by America first of all the nations of the world. FOOTNOTES: [211] See Madison, Elliot, V. 302, 357. [212] See the remarks of Gouverneur Morris in the debate on the apportionment of representatives, in which he stated the dilemma precisely in this way. Elliot, V. 301. [213] No candid man, said Rufus King, could undertake to justify to them a system under which slaves were to continue to be imported, and to be represented, while the exports produced by their labor were not to pay any part of the expenses of the government which would be obliged to defend their masters against domestic insurrections or foreign attacks. Elliot, V. 391. [214] See the remarks of Mr. Ellsworth and General Pinckney, as reported by Mr. Madison, Elliot, V. 458, 459. [215] They were Messrs. Rutledge, Randolph, Gorham, Ellsworth, and Wilson. I have classed Mr. Ellsworth among the representatives of non-slaveholding States; for although there were between two and three thousand slaves in Connecticut at this time, provision had already been made for its prospective and gradual abolition. It was not finally extinct in that State until after the year 1840. The United States census for 1790 returned 2,759 slaves for Connecticut; the census for 1840 returned 17; in the census for 1850 none were returned. A like gradual abolition took place in New Hampshire, Rhode Island, Vermont, New York, and Pennsylvania. In Massachusetts, slavery was abolished by the State Constitution of 1780. [216] See the remarks of Mr. Madison, Elliot, V. 490. [217] Madison, Elliot, V. 391, 392. [218] Ibid. 392, 393. [219] New Jersey. [220] The opposition to a power to tax exports was not confined to the members from North and South Carolina and Georgia. Ellsworth and Sherman of Connecticut, Mason of Virginia, and Gerry of Massachusetts considered such a power wrong in principle, and incapable of being exercised with equality and justice. [221] The vote was taken (August 21) upon so much of the fourth section of the seventh article of the reported draft, as affirmed that "no tax or duty shall be laid by the legislature on articles exported from any State." Massachusetts, Connecticut, Maryland, Virginia (General Washington and Mr. Madison _no_), North Carolina, South Carolina, Georgia, _ay_, 7; New Hampshire, New Jersey, Pennsylvania, Delaware, _no_, 4.--If the subject had been left in this position, exports would have been taxable by the States. The plan of restraining the power of the States over exports was subsequently adopted, after the compromise involving the revenue and commercial powers of the general government had been settled. [222] Elliot, V. 457-461. [223] See _ante_, Vol. I. Book III. Chap. IV., on the origin and necessity of the commercial power. [224] Elliot, V. 460. [225] Elliot, V. 470, 471. [226] Two grave objections were made to this settlement respecting the importation of slaves. Mr. Madison records himself as saying, in answer to the motion of General Pinckney to adopt the year 1808, that twenty years would produce all the mischief that could be apprehended from the slave-trade, and that so long a term would be more dishonorable to the American character, than to say nothing about it in the Constitution. But the real question was, whether the power to prohibit the importation at any time could be acquired for the Constitution; and the facts show that it could have been obtained only by the arrangement proposed and carried. The votes of seven States against four, given for General Pinckney's motion, show the convictions then entertained. The other objection (urged by Roger Sherman and Mr. Madison) was, that to lay a tax upon imported slaves implied an acknowledgment that men could be articles of property. But it appears from the statements of other members, also recorded by Madison, that it was part of the compromise agreed upon in committee, that the slave-trade should be placed under the revenue power, in consideration of its not being placed at once within the commercial power. It also appears that the tax was made to apply to the "_importation_ of such persons as the States might see fit to admit," until the year 1808, in order to include and to discourage the introduction of convicts. But the principal object was undoubtedly the slave-trade; and this particular phraseology was employed, instead of speaking directly of the importation of _slaves_ into the States of North Carolina, South Carolina, and Georgia, in order, on the one hand, not to give offence to those States, and on the other, to avoid offending those who objected to the use of the word "slaves" in the Constitution. Elliot, V. 477, 478. [227] That part of the compromise relating to the slave-trade, &c. was adopted in Convention by the votes of New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, _ay_, 7; New Jersey, Pennsylvania, Delaware, Virginia, _no_, 4. Maryland, Virginia, North Carolina, and Georgia voted for a proposition made by C. Pinckney, to postpone the report, in order to take up a clause requiring all commercial regulations to be passed by two thirds of each house. But on the rejection of this motion, the report of the compromise committee, recommending that a two-thirds vote for a navigation act be stricken out, was agreed to, _nem. con._; as was also the clause relating to a capitation tax. [228] See the note on the American abolition of the slave-trade, _ante_, Vol. I. p. 460. [229] See the remarks of John Rutledge. Madison, Elliot, V. 491. [230] General Pinckney. Ibid. 489. [231] The point respecting the slave-trade was insisted upon by the delegates of those three States, both as a matter of State pride and a matter of practical interest. They regarded the increase of their slave population by new importations as a thing of peculiarly domestic concern, the control of which they were unwilling to transfer to the general government. But they also contended for a political right which their States intended to exercise. The following table, taken from the United States Census, shows that in the twenty years which elapsed from 1790 to 1810 during eighteen of which the importation of slaves could not be prohibited by Congress, the slaves of those three States increased in a ratio so much larger than the rate of increase after the year 1808, as to make it apparent that it was not a mere abstraction on which they insisted. The right to admit the importation of slaves was exercised, and was intended to be exercised;--as some of the delegates of the three States declared in the Convention. PROGRESS OF THE SLAVE POPULATION FROM 1790 TO 1850, SHOWING THE INCREASE PER CENT IN EACH PERIOD OF TEN YEARS. North Carolina. South Carolina. Georgia. 1790 to 1800 32.53 36.46 102.99 1800 to 1810[A] 26.65 34.35 77.12 1810 to 1820 21.43 31.62 42.23 1820 to 1830 19.79 22.62 45.35 1830 to 1840[B] 0.08 3.68 29.15 1840 to 1850 17.38 17.71 35.85 [A] The constitutional power of Congress to prohibit the importation took effect and was exercised in 1808. [B] The great diminution in the rates of increase during this period is probably due to the removal of slaves into Alabama, Arkansas, Louisiana, and Texas. But while the census shows that the power to admit slaves was exercised freely during the twenty years that followed the adoption of the Constitution of the United States, it also shows that the States which insisted on retaining it for that period could well afford to surrender it at the stipulated time. In 1810, the proportion of the blacks of North Carolina to the whole population was 32.24 per cent, and in 1850 it was 36.36; in South Carolina the proportion in 1810 was 48.4, and in 1850, 58.93; in Georgia, in 1810 it was 42.4, and in 1850, 42.44. It is not probable, therefore, that the prosperity of those States has been diminished by the discontinuance of the slave-trade; for it is not likely that they could well sustain a much larger ratio of the blacks to the whites than that which now exists, and which will probably continue to be maintained at about the same point for a long period of time. CHAPTER XI. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE REMAINING POWERS OF CONGRESS.--RESTRAINTS UPON CONGRESS AND UPON THE STATES. In the last preceding chapter, the reader has traced the origin of the revenue and commercial powers, and of certain restrictions applied to them in the progress of those great compacts, by means of which they became incorporated into the Constitution. We have now to examine some other qualifications which were annexed to those powers after the first draft of the instrument had been prepared and reported by the committee of detail. That committee had presented a naked power to lay and collect taxes, duties, imposts, and excises,[232] with a certain restriction as to the taxation of exports, the final disposition of which has been already described; but they had designated no particular objects to which the revenues thus derived were to be applied. The general clause embracing the revenue power was affirmed unanimously by the Convention, on the 16th of August, leaving the exception of exports for future action. At a subsequent period we find the words, "to pay the debts and provide for the common defence and general welfare of the United States," added to the clause which empowers Congress to levy taxes and duties; and it is a somewhat important inquiry, how and with what purpose they were placed there. While the powers proposed by the committee of detail were under consideration, Mr. Charles Pinckney introduced several topics designed to supply omissions in their report, which were thereupon referred to that committee. The purpose of one of his suggestions was to provide, on the one hand, that funds appropriated for the payment of public creditors should not, during the time of such appropriation, be diverted to any other purpose; and, on the other hand, that Congress should be restrained from establishing perpetual revenues. Another of his suggestions contemplated a power to secure the payment of the public debt, and still another to prevent a violation of the public faith when once pledged to any public creditor.[233] Immediately after this reference, Mr. Rutledge moved for what was called a grand committee,[234] to consider the expediency of an assumption by the United States of the State debts; and after some discussion of the subject, such a committee was raised, and Mr. Rutledge's motion was referred to them, together with a proposition introduced by Mr. Mason for restraining grants of perpetual revenue.[235] Thus it appears that the principal subject involved in the latter reference was the propriety of inserting in the Constitution a specific power to make special appropriations for the payment of debts of the United States and of the several States, incurred during the late war for the common defence and general welfare; and not to make a declaration of the general purposes for which revenues were to be raised. Both committees, however, seemed to have been charged with the consideration of some restraint on the revenue power, with a view to prevent perpetual taxes of any kind. The grand committee reported first, presenting the following special provision:--"The legislature of the United States shall have power to fulfil the engagements which have been entered into by Congress, and to discharge, as well the debts of the United States, as the debts incurred by the several States during the late war for the common defence and general welfare."[236] On the following day, the committee of detail presented a report, recommending that at the end of the clause already adopted, which contained the grant of the revenue power, the following words should be added: "for payment of the debts and necessary expenses of the United States; provided that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall continue in force for more than ----years."[237] Two distinct propositions were thus before the Convention. One of them contemplated a qualification of the revenue power, the other did not. One was to give authority to Congress to pay the revolutionary debt, both of the United States and of the States, and to fulfil all the engagements of the Confederation; the other was to declare that revenues were to be raised and taxes levied for the purpose of paying the debts and necessary expenses of the United States, limiting all revenue laws, excepting those which were to appropriate specific funds to the payment of interest on debts or loans, to a term of years. When these propositions came to be acted upon, that reported by the grand committee was modified into the declaration that "all debts contracted and engagements entered into, by or under the authority of Congress, shall be as valid against the United States, under this Constitution, as under the Confederation." The State debts were thus left out; the declaration was prefixed, as an amendment, to the clause which granted the revenue power, and was thus obviously no qualification of that power.[238] But it was thought by Mr. Sherman, that the clause for laying taxes and duties ought to have connected with it an express provision for the payment of the old debts; and he accordingly moved to add to that clause the words, "for the payment of said debts, and for the defraying the expenses that shall be incurred for the common defence and general welfare." This was regarded by the Convention as unnecessary, and was therefore not adopted.[239] But the provision reported by the committee of detail, which was intended as a qualification of the revenue power, by declaring the objects for which taxes and duties were to be levied, had not yet been acted upon, and on the 31st of August, this, with all other matters not disposed of, was referred to a new grand committee, who, on the 4th of September, introduced an amendment to the revenue clause, which made it read as follows:--"The legislature shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States." This amendment was unanimously adopted;[240] and when the Constitution was revised, at the close of the proceedings, the declaration which made the debts and engagements of the Confederation obligatory upon the new Congress, was separated from the context of the revenue clause, and placed by itself in the _sixth_ article. There is one other restraint upon the revenue, as well as upon the commercial power, the history of which now demands our inquiries. But in order to understand it correctly, it will be necessary for the reader to recur to the position in which the revenue and commercial powers were left by the sectional compromises described in the last chapter. The struggle between the Northern and the Southern States concerning the limitations of those powers turned, as we have seen, on certain restrictions desired by the latter. They wished to have exports excepted out of the revenue power; they wished to have a vote of two thirds made necessary to the passage of any commercial regulation; and three of them wished to have the slave-trade excepted from both the revenue and the commercial powers. We have seen that the result of the sectional compromises was to leave the commercial and revenue powers unlimited, excepting by the saving in relation to the slave-trade; that they left the revenue power unlimited, excepting by the restriction concerning exports and a capitation tax; and that the commercial power was to be exercised, like other legislative powers, by a majority in Congress. General commercial and revenue powers, then, without other restrictions than these, would enable Congress to collect their revenues where they should see fit, without obliging them to adopt the old ports of entry of the States, or to consider the place where a cargo was to be unladen. They might have custom-houses in only one place in each State, or in only such States as they might choose to select, and might thus compel vessels bound from or to all the other States to clear or enter at those places. But, on the other hand, a constitutional provision which would require them to establish custom-houses at the old ports of entry of the States, without leaving them at liberty to establish other ports of entry, or to compel vessels to receive on board revenue officers before they had reached their ports of destination, would create opportunities and facilities for smuggling. It appears that the people of Maryland felt some apprehension that an unrestricted power to make commercial and fiscal regulations might result in compelling vessels bound to or from Baltimore to enter or clear at Norfolk, or some other port in Virginia. The delegates of Maryland accordingly introduced a proposition, which embraced two ideas; first, that Congress shall not oblige vessels, domestic or foreign, to enter or pay duties or imposts in any other State than in that to which they may be bound, or to clear from any other State than that in which their cargoes may be laden; secondly, that Congress shall not induce vessels to enter or clear in one State in preference to another, by any privileges or immunities.[241] This proposition became the basis of that clause of the Constitution, which declares that "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another."[242] It was while this subject of the equal operation of the commercial and revenue powers upon the different States was under consideration, that the further provision was devised and incorporated into the Constitution, which requires all duties, imposts, and excises to be uniform throughout the United States. This clause, in the final revision of the instrument, was annexed to the power of taxation.[243] The commercial power, besides being subjected to the restrictions which have been thus described, was extended to a subject not embraced in it by the report of the committee of detail. They had included in it "commerce with foreign nations, and among the several States";--meaning, by the former term, not to include the Indian tribes upon this continent, but all other communities, civilized and barbarian, foreign to the people of the United States. By the system which had always prevailed in the relations of Europeans and their descendants with the Indians of America, those tribes had constantly been regarded as distinct and independent political communities, retaining their original rights, and among them the undisputed possession of the soil; subject to the exclusive right of the European nation making the first discovery of their territory to purchase it. This principle, incorporated into the public law of Europe at the time of the discovery and settlement of the New World, and practised by general consent of the nations of Europe, was the basis of all the relations maintained with the Indian tribes by the imperial government, in the time of our colonial state, by our Revolutionary Congress, and by the United States under the Confederation. It recognized the Indian tribes as nations, but as nations peculiarly situated, inasmuch as their intercourse and their power to dispose of their landed possessions were restricted to the first discoverers of their territory. This peculiar condition drew after it two consequences;--first, that, as they were distinct nations, they could not be treated as part of the subjects of any one of the States, or of the United States; and secondly, that, as their intercourse and trade were subjected to restraint, that restraint would be most appropriately exercised by the federal power. So general was the acquiescence in these necessities imposed by the principle of public law which defined the condition of the Indian tribes, that during the whole of the thirteen years which elapsed from the commencement of the Revolution to the adoption of the Constitution, the regulation of intercourse with those tribes was left to the federal authority. It was tacitly assumed by the Revolutionary Congress, and it was expressly conferred by the Articles of Confederation. The provision of the Confederation on this subject gave to the United States the exclusive right and power "of regulating the trade and managing all affairs with the Indians not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated." The exception of such Indians as were members of any State, referred to those broken members of tribes who had lost their nationality, and had become absorbed as individuals into the political community of the whites. With all other Indians, remaining as distinct and self-governing communities, trade and intercourse were subject to the regulation of Congress; while at the same time each State retained to itself the regulation of its commerce with all other nations. The broad distinction thus early established, and thus perpetuated in the Confederation, between commerce with the Indian tribes, and commerce with "foreign nations," explains the origin and introduction of a special provision for the former, as distinguished from the latter, in the Constitution of the United States. For although there might have been some reason to contend that commerce with "foreign nations"--if the grant of the commercial power had not expressly embraced the Indian tribes--would have extended to those tribes, as nations foreign to the United States, yet the entire history of the country, and the peculiarity of the intercourse needful for their security, made it eminently expedient that there should be a distinct recognition of the Indian communities, in order that the power of Congress to regulate all commerce with them might not only be as ample as that relating to foreign nations, but might stand upon a distinct assertion of their condition as _tribes_. Accordingly, Mr. Madison introduced the separate proposition "to regulate affairs with the Indians, as well within as without the limits of the United States";[244] and the committee to whom it was referred gave effect to it, by adding the words, "and with the Indian tribes," to the end of the clause containing the grant of the commercial power.[245] The remaining powers of Congress may be considered in the order in which they were acted upon by the Convention. The powers to establish a uniform rule of naturalization, to coin money and regulate the value thereof and of foreign coin, and fix the standard of weights and measures, were adopted without discussion and with entire unanimity, as they had been proposed in the draft prepared by the committee of detail. The power to establish post-offices was extended to embrace post-roads.[246] These were succeeded by the subject of borrowing money and emitting bills on the credit of the United States; a power that was proposed to be given by the committee of detail, while they at the same time proposed to restrain the States from emitting bills of credit. I have not been able to discover upon what ground it was supposed to be proper or expedient to confer a power of emitting bills of credit on the United States, and to prohibit the States from doing the same thing. That the same thing was in contemplation in the two provisions reported by the committee, sufficiently appears from the debates and from the history of the times. The object of the prohibition on the States was to prevent the issue and circulation of paper money; the object of the proposed grant of power to the United States was to enable the government to employ a paper currency, when it should have occasion to do so. But the records of the discussions that have come down to us do not disclose the reasons which may have led to the supposition that a paper currency could be used by the United States with any more propriety or safety than by a State. One of the principal causes which had led to the experiment of making a national government with power to prevent such abuses, had been the frauds and injustice perpetrated by the States in their issues of paper money; and there was at this very time a loud and general outcry against the conduct of the people of Rhode Island, who had kept themselves aloof from the national Convention, for the express purpose, among others, of retaining to themselves the power to issue such a currency. It is possible that the phrase "emit bills on the credit of the United States" might have been left in the Constitution, without any other danger than the hazards of a doubtful construction, which would have confined its meaning to the issuing of certificates of debt under the power to "borrow money." But this was not the sense in which the term "bills of credit" was generally received throughout the country, nor the sense intended to be given to it in the clause which contained the prohibition on the States. The well-understood meaning of the term had reference to paper issues, intended to circulate as currency, and bearing the public promise to pay a sum of money at a future time, whether made or not made a legal tender in payment of debts. It would have been of no avail, therefore, to have added a prohibition against making such bills a legal tender. If a power to issue them should once be seen in the Constitution, or should be suspected by the people to be there, wrapt in the power of borrowing money, the instrument would array against itself a formidable and probably a fatal opposition. It was deemed wiser, therefore, even if unforeseen emergencies might in some cases make the exercise of such a power useful, to withhold it altogether. It was accordingly stricken out, by a vote of nine States against two, and the authority of Congress was thus confined to borrowing money on the credit of the United States, which appears to have been intended to include the issuing of government notes not transferable as currency.[247] The clauses which authorize Congress to constitute tribunals inferior to the Supreme Court,[248] and to make rules as to captures on land and water,[249]--the latter comprehending the grant of the entire prize jurisdiction,--were assented to without discussion.[250] Then came the consideration of the criminal jurisdiction in admiralty, and that over offences against the law of nations. The committee of detail had authorized Congress "to declare the law and punishment of piracies and felonies committed on the high seas, ... and of offences against the law of nations." The expression to "declare the law," &c. was changed to the words "define and punish," for the following reason. Piracy is an offence defined by the law of nations, and also by the common law of England. But in those codes a single crime only is designated by that term.[251] It was necessary that Congress should have the power to declare whether this definition was to be adopted, and also to determine whether any other crimes should constitute piracy. In the same way, the term "felony" has a particular meaning in the common law, and it had in the laws of the different States of the Union a somewhat various meaning. It was necessary that Congress should have the power to adopt any definition of this term, and also to determine what other crimes should be deemed felonies. So also there were various offences known to the law of nations, and generally regarded as such by civilized States. But before Congress could have power to punish for any of those offences, it would be necessary that they, as the legislative organ of the nation, should determine and make known what acts were to be regarded as offences against the law of nations; and that the power to do this should include both the power to adopt from the code of public law offences already defined by that code, and to extend the definition to other acts. The term "declare" was therefore adopted expressly with a view to the ascertaining and creating of offences, which were to be treated as piracies and felonies committed on the high seas, and as offences against the law of nations.[252] The same necessity for an authority to prescribe a previous definition of the crime of counterfeiting the securities and current coin of the United States would seem to have been felt; and it was probably intended to be given by the terms "to provide for the punishment of" such counterfeiting.[253] The power to "declare" war had been reported by the committee as a power to "make" war. There was a very general acquiescence in the propriety of vesting the war power in the legislature rather than the executive; but the former expression was substituted in place of the latter, in order, as it would seem, to signify that the legislature alone were to determine formally the state of war, but that the executive might be able to repel sudden attacks.[254] The clause which enables Congress to grant "letters of marque and reprisal" was added to the war power, at a subsequent period, on the recommendation of a committee to whom were referred sundry propositions introduced by Charles Pinckney, of which this was one.[255] In addition to the war power, which would seem to involve of itself the authority to raise all the necessary forces required by the exigencies of a war, the committee of detail had given the separate power "to raise armies," which the Convention enlarged by adding the term to "support."[256] This embraced standing armies in time of peace, and, as the clause thus amended would obviously allow, such armies might be enlarged to any extent and continued for any time. The nature of the government, and the liberties and the very prejudices of the people, required that some check should be introduced, to prevent an abuse of this power. A limitation of the number of troops that Congress might keep up in time of peace was proposed, but it was rejected by all the States as inexpedient and impracticable.[257] Another check, capable of being adapted to the proper exercise of the power itself, was to be found in an idea suggested by Mr. Mason, of preventing a perpetual revenue.[258] The application of this principle to the power of raising and supporting armies would furnish a salutary limitation, by requiring the appropriations for this purpose to pass frequently under the review of the representatives of the people, without embarrassing the exercise of the power itself. Accordingly, the clause now in the Constitution, which restricts the appropriation of money to the support of the army to a term not longer than two years, was added to the power of raising and supporting armies.[259] Authority "to provide and maintain a navy" was unanimously agreed as the most convenient definition of the power, and to this was added, from the Articles of Confederation, the power "to make rules for the government and regulation of the land and naval forces."[260] The next subject which required consideration was the power of the general government over the militia of the States. There were few subjects dealt with by the framers of the Constitution exceeding this in magnitude, in importance, and delicacy. It involved not only the relations of the general government to the States and the people of the States, but the question whether and how far the whole effective force of the nation could be employed for national purposes and directed to the accomplishment of objects of national concern. The mode in which this question should be settled would determine, in a great degree, and for all time, whether the national power was to depend, for the discharge of its various duties in peace and in war, upon standing armies, or whether it could also employ and rely upon that great reservation of force that exists in all countries accustomed to enroll and train their private citizens to the use of arms. The American Revolution had displayed nothing more conspicuously than the fact, that, while the militia of the States were in general neither deficient in personal courage, nor incapable of being made soldiers, they were inefficient and unreliable as troops. One of the principal reasons for this was, that, when called into the field in the service of the federal power, the different corps of the several States looked up to their own local government as their sovereign; and being amenable to no law but that of their own State, they were frequently indisposed to recognize any other authority. But a far more powerful cause of their inefficiency lay in the fact that they were not disciplined or organized or armed upon any uniform system. A regiment of militia drawn from New Hampshire was a very different body from one drawn from New York, or Pennsylvania, or New Jersey, or South Carolina. The consequence was, that when these different forces were brought to act together, there were often found in the same campaign, and sometimes in the same engagement, portions of them in a very respectable state of discipline and equipment, and others in no state of discipline or equipment at all. The necessity, therefore, for a uniform system of disciplining and arming the militia was a thing well ascertained and understood, at the time of the formation of the Constitution. But the control of this whole subject was a part of the sovereignty of each State, not likely to be surrendered without great jealousy and distrust; and one of the most delicate of the tasks imposed upon the Convention was that of determining how far and for what purposes the people of the several States should be asked to confer upon the general government this very important part of their political sovereignty. One thing, however, was clear;--that, if the general government was to be charged with the duty of undertaking the common defence against an external enemy, or of suppressing insurrection, or of protecting the republican character of the State constitutions, it must either maintain at all times a regular army suitable for any such emergency, or it must have some power to employ the militia. The latter, when compared with the resource of standing armies, is, as was said of the institution of chivalry, "the cheap defence of nations"; and although no nation has found, or will be likely to find, it sufficient, without the maintenance of some regular troops, the nature of the liberties inherent in the construction of the American governments, and the whole current of the feelings of the American people, would lead them to the adoption of a policy that might restrain, rather than encourage, the growth of a permanent army. So far, therefore, it seemed manifest, from the duties which were to be imposed on the government of the Union, that it must have a power to employ the militia of the States; and this would of necessity draw after it, if it was to be capable of a beneficial exercise, the power to regulate, to some extent, their organization, armament, and discipline. But the first draft of the Constitution, prepared by the committee of detail, contained no express power on this subject, excepting "to call forth the aid of the militia in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions."[261] Possibly it might have been contended, after the Constitution had gone into operation, that the general power to make all laws necessary and proper for the execution of the powers specially enumerated, would enable Congress to prescribe regulations of the force which they were authorized to employ, since the authority to employ would seem to involve the right to have the force kept in a fit state to be employed. But this would have been a remote implication of power, too hazardous to be trusted; and it at once occurred to one of the wisest and most sagacious of the statesmen composing the Convention, who, though he never signed the Constitution, exercised a great and salutary influence in its preparation,--Mr. Mason of Virginia,--that an express and unequivocal power of regulating the militia must be conferred. He stated the obvious truth, that, if the disciplining of the militia were left in the hands of the States, they never would concur in any one system; and as it might be difficult to persuade them to give up their power over the whole, he was at first disposed to adopt the plan of placing a part of the militia under the control of the general government, as a select force.[262] But he, as well as others, became satisfied that this plan would not produce a uniformity of discipline throughout the entire mass of the militia. The question, therefore, resolved itself practically into this,--what should be the nature and extent of the control to be given to the general government, assuming that its control was to be applicable to the entire militia of the several States. This important question, involved in several distinct propositions, was referred to a grand committee of the States.[263] It was by them that the plan was digested and arranged by which Congress now has the power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;[264]--a provision that was adopted by a large majority of the States. The clause reported by the committee of detail was also adopted, by which Congress is enabled to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.[265] The next subject in the order of the report made by the committee of detail was that general clause now found at the close of the enumeration of the express powers of Congress, which authorizes them "to make all laws which may be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."[266] Nothing occurred in the proceedings on this provision which throws any particular light upon its meaning, excepting a proposition to include in it, expressly, the power to "establish all offices" necessary to execute the powers of the Constitution; an addition which was not made, because it was considered to be already implied in the terms of the clause.[267] The subjects of patents for useful inventions and of copyrights of authors appear to have been brought forward by Mr. Charles Pinckney. They gave rise to no discussion in the Convention, but were considered in a grand committee, with other matters, and there is no account of the views which they took of this interesting branch of the powers of Congress. We know, however, historically, that these were powers not only possessed by all the States, but exercised by some of them, before the Constitution of the United States was formed. Some of the States had general copyright laws, not unlike those which have since been enacted by Congress;[268] but patents for useful inventions were granted by special acts of legislation in each case. When the power to legislate on these subjects was surrendered by the States to the general government, it was surrendered as a power to legislate for the purpose of securing a natural right to the fruits of mental labor. This was the view of it taken in the previous legislation of the States, by which the power conferred upon Congress must of course, to a large extent, be construed. Such are the legislative powers of Congress, which are to be exercised within the States themselves;--and it is at once obvious, that they constitute a government of limited authority. The question arises, then, whether that authority is anywhere full and complete, embracing all the powers of government and extending to all the objects of which it can take cognizance. It has already been seen, that, when provision was made for the future acquisition of a seat of government, exclusive legislation over the district that might be acquired for that purpose was conferred upon Congress.[269] In the same clause, the like authority was given over all places that might be purchased, with the consent of any State legislature, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.[270] All the other places to which the authority of the United States can extend are included under the term "territories," which are out of the limits and jurisdiction of any State. As this is a subject which is intimately connected with the power to admit new States into the Union, we are now to consider the origin and history of the authority given to Congress for that purpose. In examining the powers of Congress contained in the first article of the Constitution, the reader will not find any power to admit new States into the Union; and while he will find there the full legislative authority to govern the District of Columbia and certain other places ceded to the United States for particular purposes, of which I have already spoken, he will find no such authority there conferred in relation to the territory which had become the property of the United States by the cession of certain of the States before and after the adoption of the Articles of Confederation. If this power of legislation exists as to the territories, it is to be looked for in another connection; and although it is not the special province of this work to discuss questions of construction, it is proper here to state the history of those portions of the Constitution which relate to this branch of the authority of Congress. In the first volume of this work, I have given an account of the origin of the Northwestern Territory, of its relations to the Union, and of the mode in which the federal Congress had dealt with it down to the time when the national Convention was assembled.[271] From the sources there referred to, and from others to which reference will now be made, it may be convenient to recapitulate what had been done or attempted by the Congress of the Confederation. It appears that during the preparation of the Articles of Confederation an effort was made to include in them a grant of express power to the United States in Congress to ascertain and fix the western boundaries of the existing States, and to lay out the territory beyond the boundaries that were to be thus ascertained into new States. This effort totally failed. It was founded upon the idea that the land beyond the rightful boundaries of the old States was already, or would by the proposed grant of power to ascertain those boundaries become, the common property of the Union. But the States, which then claimed an uncertain extension westward from their actual settlements, were not prepared for such an admission, or such a grant; and accordingly the Articles of Confederation, which were issued in 1777 and took effect in 1781, contained no express power to deal with landed property of the United States, and no provision which could safely be construed into a power to form and admit new States out of then unoccupied lands anywhere upon the continent. Still, the Articles were successively ratified by some of the States, and finally became established, in the express contemplation that the United States should be made the proprietor of such lands, by the cession of the States which claimed to hold them. In order to procure such cessions, as the means of inducing a unanimous accession to the confederacy, the Congress in 1780 passed a resolve, in which they promised to dispose of the lands for the common benefit of the United States, to settle and form them into distinct republican States, and to admit such States into the Union on an equal footing with its present members.[272] The great cession by Virginia, made in 1784, was immediately followed by another resolve, for the regulation of the territory thus acquired.[273] This resolve, as originally reported by Mr. Jefferson, embraced a plan for the organization of temporary governments in certain States which it undertook to describe and lay out in the Western territory, and for the admission of those States into the Union. In one particular, also, it undertook, as it was first reported, to regulate the personal rights or relations of the settlers, by providing that, after the year 1800, slavery, or involuntary servitude except for crime, should not exist in any of the States to be formed in the territory. But this clause was stricken out before the resolve was passed, and its removal left the measure a mere provision for the political organization of temporary and permanent governments of States, and for the admission of such States into the Union. So far as personal rights or relations were involved in it, the settlers were authorized to adopt, for a temporary government, the constitution and laws of any one of the original States, but the laws were to be subject to alteration by their ordinary legislature. The conditions of their admission into the Union referred solely to their political relations to the United States, or to the rights of the latter as the proprietor of the ungranted lands. In about a year from the passage of this measure introduced by Mr. Jefferson, and after he had gone on his mission to France, an effort was made by Mr. King to legislate on the subject of the immediate and perpetual exclusion of slavery from the States described in Mr. Jefferson's resolve. Mr. King's proposition was referred to a committee, but it does not appear that it was ever acted upon.[274] The cessions of Massachusetts and Connecticut followed, in 1785 and 1786. Within two years from this period, such had been the rapidity of emigration and settlement, and so inconvenient had become the plan of 1784, that Congress felt obliged to legislate anew on the whole subject of the Northwestern Territory, and proceeded to frame and adopt the Ordinance of July 13, 1787. This instrument not only undertook to make political organizations, and to provide for the admission of new States into the Union, but it also dealt directly with the rights of individuals. Its exclusion of slavery from the territory is well known as one of its fundamental articles, not subject to alteration by the people of the territory, or their legislature.[275] The power of Congress to deal with the admission of new States was not only denied at the time, but its alleged want of such power was one of the principal reasons which were said to require a revision of the federal system. It does not appear that the subject of legislation on the rights or condition of persons attracted particular attention; nor do we know, from anything that has come down to us, that the clause relating to slavery was stricken from Mr. Jefferson's resolve in 1784, upon the special ground of a want of constitutional power to legislate on such a question. But Mr. Jefferson has himself informed us, that a majority of the States in Congress would not consent to construe the Articles of Confederation as if they had reserved to nine States in Congress power to admit new States into the Union from the territorial possessions of the United States; and that they so shaped his measure, as to leave the question of power and the rule for voting to be determined when a new State formed in the territory should apply for admission.[276] It seems, also, that although the power to frame territorial governments, to organize States and admit them into the Union, was assumed in the Ordinance of 1787, the Congress of the Confederation never acted upon the power so far as to admit a State.[277] Finally, we are told by Mr. Madison, in the Federalist, that all that had been done in the Ordinance by the Congress of the Confederation, including the sale of lands, the organization of governments, and the prescribing of conditions of admission into the Union, had been done "without the least color of constitutional authority";[278]--an assertion which, whether justifiable or not, shows that the power of legislation was by some persons strenuously denied.[279] With regard to the powers of Congress, under the Confederation, to erect new States in the Northwestern Territory, and to admit them into the Union, the truth seems to be this. There is no part of the Articles of Confederation which can be said to confer such a power; and, in fact, when the Articles were framed, the Union, although it then existed by an imperfect bond, not only possessed no such territory, but it did not then appear likely to become the proprietor of lands, claimed by certain of the States as the successors of the crown of Great Britain, and lying within what they regarded as their original chartered limits. The refusal of those States to allow the United States to determine their boundaries, made it unnecessary to provide for the exercise of authority over a public domain. But in the interval between the preparation of the Articles and their final ratification, a great change took place in the position of the Union. It was found that certain of the smaller States would not become parties to the Confederation, if the great States were to persist in their refusal to cede to the Union their claims to the unoccupied Western lands; and although the States which thus held themselves back, for a long time, from the ratification of the Articles, finally adopted them, before the cessions of Western territory were made, they did so upon the most solemn assertion that they expected and confided in a future relinquishment of their claims by the other States. Those just expectations were fulfilled. By the acts of cession, and by the proceedings of Congress which invited them, the United States not only became the proprietors of a great public domain, but they received that domain upon the express trust that its lands should be disposed of for the common benefit, and that the country should be settled and formed into republican States, and that those States should be admitted into the Union. In these conveyances, made and accepted upon these trusts, there was a unanimous acquiescence by the States. While, therefore, in the formal instrument under which the Congress was organized, and by which the United States became a corporate body, there was no article which looked to the admission of new States into that body, formed out of territory thus acquired, and no power was conferred to dispose of such lands or govern such territory, there were, outside of that instrument, and closely collateral to it, certain great compacts between the States, arising out of deeds of cession and the formal guaranties by which those cessions had been invited, and with which they had been received, which proceeded as if there were a competent authority in the United States in Congress to provide for the formation of the States contemplated, and for their admission into the Union. Strictly speaking, however, there was no such authority. It was to be gathered, if at all, from public acts and general acquiescence, and could not be found in the instrument that formed the charter and established the powers of the Congress. It was an authority, therefore, liable to be doubted and denied; it was one for the exercise of which the Congress was neither well fitted nor well situated; and it was moreover so delicate, so extensive, and so different from all the other powers and duties of the government, as to make it eminently necessary to have it expressly stated and conferred in the instrument under which all the other functions of the government were to be exercised.[280] Such was the state of things at the period of the formation of the Constitution; and as we are to look for the germ of every power embraced in that instrument in some stage of the proceedings which took place in the course of its preparation, it is important at once to resort to the first suggestion of any authority over these subjects. In doing so, we are to remember that the United States had accepted cessions of the Northwestern Territory, impressed with two distinct trusts: first, that the country should be settled and formed into distinct republican States, which should be admitted into the Union; secondly, that the lands should be disposed of for the common benefit of all the States.[281] Accordingly, we find in the plan of government presented by Governor Randolph at the opening of the Convention, a resolution declaring "that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory or otherwise, with the consent of a number of voices in the national legislature less than the whole."[282] This resolution remained the same in phraseology and in purpose through all the stages to which the several propositions that formed the outline of the new government were subjected, down to the time when they were sent to the committee of detail for the purpose of having the Constitution drawn out. Looking to the manifest want of power in the Confederation to admit new States into the Union; to the probability that Vermont, Kentucky, Tennessee (then called Franklin), and Maine,--none of which were embraced in any cessions that had then been made to the United States,--might become separate States; and to the prospective legislation of the Ordinance of 1787 concerning the admission of States that were to be formed in the territory northwest of the Ohio, which had been ceded to the Union;--it seems quite certain that the purpose of the resolution was to supply a power to admit new States, whether formed from the territory of one of the existing States, or from territory that had become the exclusive property of the United States. The resolution contained, however, no positive restriction, which would require the assent of any existing State to the separation of a part of its territory; but as the States to be admitted were to be those "lawfully arising," it is apparent that the original intention was that no present State should be dismembered without its consent. But in order to make this the more certain, the committee of detail, in the article in which they carried out the resolution, gave effect to its provisions in these words:--"New States lawfully constituted or established within the limits of the United States may be admitted, by the legislature, into this government; but to such admission the consent of two thirds of the members present in each house shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the legislature may make conditions with the new States concerning the public debt which shall be then subsisting."[283] In the first draft of the Constitution, therefore, there was contained a qualified power to admit new States, whether arising within the limits of any of the old States, or within the territory of the United States. But in this proposition there was a great omission; for although the States to be admitted were to be those lawfully arising, and such a State might be formed out of the territory of an existing State by the legislative power of the latter, yet it was not ascertained how a State was "lawfully to arise" in the territory of the United States. Nor was there, at present, any provision introduced into the Constitution by which Congress could dispose of the soil of the national domain. These as well as other omissions at once attracted the attention of Mr. Madison, who, as we have seen, held the opinion that the entire legislation of the old Congress in reference to the Northwestern Territory was without constitutional authority. Before the article which embraced the admission of new States was reached, he moved the following among other powers:[284] "to dispose of the unappropriated lands of the United States"; and "to institute temporary governments for new States arising therein." These propositions were referred to the committee of detail, but before any action upon them, the article previously reported by that committee was reached and taken up, and there ensued upon it a course of proceeding which resulted in the provisions that now stand in the third section of the fourth article of the Constitution.[285] The first alteration made in the article reported by the committee was to strike out the clause which declared that the new States should be admitted on an equal footing with the old ones. The reason assigned for this change was, that the legislature ought not to be tied down to such an admission, as it might throw the balance of power into the Western States.[286] The next modification was to strike out the clause which required a vote of two thirds of the members present for the admission of a State.[287] This left the proposed article a mere grant of power to admit new States, requiring the consent of the legislature of any State that might be dismembered, as well as the consent of Congress. An earnest effort was then made, by some of the members from the smaller States, to remove this restriction, upon the ground that the United States, by the treaty of peace with England, had become the proprietor of the crown lands which were situated within the limits claimed by some of the States that would be likely to be divided; and it was urged, that to require the consent of Virginia, North Carolina, and Georgia to the separation of their Western settlements, might give those States an improper control over the title of the United States to the vacant lands lying within the jurisdiction claimed by those States, and would enable them to retain the jurisdiction unjustly, against the wish of the settlers. But a large majority of the States refused to concede a power to dismember a State, without its consent, by taking away even its claims to jurisdiction. It was considered by them, that as to municipal jurisdiction over settlements already made within limits claimed by Virginia, North Carolina, and Georgia, the Constitution ought not to interfere, without the joint consent of the settlers and the State exercising such jurisdiction; that if the title to lands unoccupied at the treaty of peace, lying within the originally chartered limits of any of the States, was in dispute between them and the United States, that controversy would be within the reach of the judicial power, as one between a State and the United States, or it might be terminated by a voluntary cession of the State claim to the Union.[288] The next step taken in the settlement of this subject was to provide for the case of Vermont, which was then in the exercise of an independent sovereignty, although it was within the asserted limits of New York. It was thought proper, in this particular case, not to make the State of Vermont, already formed, dependent for her admission into the Union on the consent of New York. For this reason, the words "hereafter formed" were inserted in the article under consideration, and the word "jurisdiction" was substituted for "limits."[289] Thus modified, the article stood as follows:-- "New States may be admitted by the legislature into the Union; but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States, without the consent of the legislature of such State, as well as of the general legislature." This provision was quite unsatisfactory to the minority. They wished to have the Constitution assert a distinct power in Congress to erect new States within, as well as without, the territory claimed by any of the States, and to admit such new States into the Union; and they also wished for a saving clause to protect the title of the United States to vacant lands ceded by the treaty of peace. Luther Martin accordingly moved a substitute article, embracing these two objects, but it was rejected.[290] A clause was then added to the article pending, which declared that no State should be formed by the junction of two or more States, or parts of States, without the consent of the States concerned, as well as the consent of Congress. This completed the substance of what is now the first clause of the third section of the fourth article of the Constitution.[291] Mr. Carroll thereupon renewed the effort to introduce a clause saving the rights of the United States to vacant lands; and after some modification, he finally submitted it in these words: "Nothing in this Constitution shall be construed to alter the claims of the United States, or of the individual States, to the Western territory; but all such claims shall be examined into, and decided upon, by the Supreme Court of the United States." Before any vote was taken upon this proposition, however, Gouverneur Morris moved to postpone it, and brought forward as a substitute the very provision which now forms the second clause of the third section of article fourth, which he presented as follows: "The legislature shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States; and nothing in this Constitution contained shall be so construed as to prejudice any claims, either of the United States or of any particular State." This provision was adopted, without any other dissenting vote than that of the State of Maryland.[292] The purpose of this provision, as it existed at the time in the minds of the framers of the Constitution, must be gathered from the whole course of their proceedings with respect to it, and from the surrounding facts, which exhibit what was then, and what was afterwards likely to become, the situation of the United States in reference to the acquisition of territory and the admission of new States. There were, then, at the time when this provision was made, four classes of cases in the contemplation of the Convention. The first consisted of the Northwestern Territory, in which the title to the soil and the political jurisdiction were already vested in the United States. The second embraced the case of Vermont, which was then exercising an independent jurisdiction adversely to the State of New York, and the case of Kentucky, then a district under the jurisdiction of Virginia; in both of which the United States neither claimed nor sought to acquire either the title to the vacant lands or the rights of political sovereignty, but which would both require to be received as new and separate States, the former without the consent of New York, the latter with the consent of Virginia. The third class comprehended the cessions which the United States in Congress were then endeavoring to obtain from the States of North Carolina, South Carolina, and Georgia, and in which were afterwards established the States of Tennessee, Mississippi, and Alabama.[293] These cessions, as it then appeared, might or might not all be made. If made, the title of the United States to the unoccupied lands would be complete, resting both upon the cessions and upon the treaty of peace with England; and the political jurisdiction over the existing settlements, as well as over the whole territory, would be transferred with the cessions, subject to any conditions which the ceding States might annex to their grants. If the cessions should not be made, the claims of the United States to the unoccupied lands would stand upon the treaty of peace, and would require to be saved by some clause in the Constitution which should signify that they were not surrendered; while the claims of the respective States would require to be protected in like manner. The reader will now be prepared to understand the following explanation of the third section of the fourth article of the Constitution. First, with reference to the Northwestern Territory, the soil and jurisdiction of which was already completely vested in the United States, it was necessary that the Constitution should confer upon Congress power to exercise the political jurisdiction of the United States, power to dispose of the soil, and power to admit new States that might be formed there into the Union. Secondly, with reference to such cases as that of Vermont, it was necessary that there should be a power to admit new States into the Union without requiring the assent of any other State, when such new States were not formed within the actual jurisdiction of any other State. Thirdly, with reference to such cases as that of Kentucky, which would be formed within the actual jurisdiction of another State, it was necessary that the power to admit should be qualified by the condition of the consent of that State. Fourthly, with reference to such cessions as were expected to be made by North Carolina, South Carolina, and Georgia, it was necessary to provide the power of political government, the power to admit into the Union, and the power to dispose of the soil, if the cessions should be made; and at the same time to save the claims of the United States and of the respective States as they then stood, if the cessions anticipated should not be made. None of these cases, however, were specifically mentioned in the Constitution, but general provisions were made, which were adapted to meet the several aspects of these cases. From the generality of these provisions, it is held by some that the clause which relates to "the territory or other property of the United States," was intended to be applied to all cessions of territory that might ever be made to the United States, as well as to those which had been made, or which were then specially anticipated; while others give to the clause a much narrower application.[294] There now remain to be considered the restraints imposed upon the exercise of the powers of Congress, both within the States and in all other places; both where the authority of the United States is limited to certain special objects, and where it is unlimited and universal, excepting so far as it is narrowed by these constitutional restraints. Some of them I have already described, in tracing the manner in which they were introduced into the Constitution. We have seen how far the commercial and revenue powers became limited in respect to the slave-trade, to taxes on exports, to preferences between the ports of different States, and to the levying of capitation or other direct taxes. These restrictions were applicable to these special powers. But others were introduced, which apply to the exercise of all the powers of Congress, and are in the nature of limitations upon its general authority as a government. One of these is embraced in the provision, "that the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."[295] The common law of England, which recognizes the right to the writ of habeas corpus for the purpose of delivery from illegal imprisonment or restraint, was the law of each of the American States; and it appears from the proceedings of the Convention to have been the purpose of this provision to recognize this right, in the relations of the people of the States to the general government, and to secure and regulate it. The choice lay between a declaration of the existence of the right, making it inviolable and absolute, under all circumstances, and a recognition of its existence by a provision which would admit of its being suspended in certain emergencies. The latter course was adopted, although three of the States recorded their votes against the exception of cases of rebellion or invasion.[296] The prohibition upon Congress to pass bills of attainder, or _ex post facto_ laws, came into the Constitution at a late period, and while the first draft of it was under consideration. Bills of attainder, in the jurisprudence of the common law, are acts of legislation inflicting punishment without a judicial trial. The proposal to prohibit them was received in the Convention with unanimous assent. With regard to the other class of legislative acts, described as "_ex post facto_ laws," there was some difference of opinion, in consequence probably of different views of the extent of the term. In the common law, this expression included only, then and since, laws which punish as crimes acts which were not punishable as crimes when they were committed. Laws of a civil nature, retrospective in their operation upon the civil rights and relations of parties, were not embraced by this term, according to the definition of English jurists. But it is manifest from what was said by different members, that, at the time when the vote was taken which introduced this clause into the Constitution, the expression "_ex post facto_ laws" was taken in its widest sense, embracing all laws retrospective in their operation. It was objected, therefore, that the prohibition was unnecessary, since, upon the first principles of legislation, such laws are void of themselves, without any constitutional declaration that they are so. But experience had proved that, whatever might be the principles of civilians respecting such laws, the State legislatures had passed them, and they had been acted on. A large majority of the Convention determined, therefore, to place this restraint upon the national legislature, and at the time of the vote I think it evident that all retrospective laws, civil as well as criminal, were understood to be included.[297] But when the same restraint came afterwards to be imposed upon the State legislatures, the attention of the assembly was drawn to the distinction between criminal laws and laws relating to civil interests. In order to reach and control retrospective laws operating upon the civil rights of parties, when passed by a State, a special description was employed to designate them, as "laws impairing the obligation of contracts," and the term "_ex post facto_ laws" was thus confined to laws creating and punishing criminal offences after the acts had been committed.[298] What is now the settled construction of this term, therefore, is in accordance with the sense in which it was finally intended to be used by the framers of the Constitution before the instrument passed from their hands. The committee of detail had reported in their draft of the Constitution a clause which restrained the United States from granting any title of nobility. The Convention, for the purpose of preserving all officers of the United States independent of external influence, added to this a provision that no person holding an office of profit or trust under the United States shall, without the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.[299] In addition to the special powers conferred by the Constitution upon the national government, it has imposed certain restraints on the political power of the States, which qualify and diminish what would otherwise be the unlimited sovereignty of each of them. These restraints are of two classes;--a part of them being designed to remove all obstructions that might be placed by State legislation or action in the way of the appropriate exercise of the powers vested in the United States, and a part of them being intended to assimilate the nature of the State governments to that of the Union, by the application of certain maxims or rules of public policy. These restraints may now be briefly examined, with reference to this classification. The idea of imposing special restrictions upon the power of the separate States was not expressly embraced in the plan of government described by the resolutions on which the committee of detail were instructed to prepare the instrument of government. Such restrictions, however, were not unknown to the previous theory of the Union. They existed in the Articles of Confederation, where they had been introduced with the same general purpose of withdrawing from the action of the States those objects, which, by the stipulations of that instrument, had been committed to the authority of the United States in Congress. But the inefficacy of those provisions lay in the fact, that they were the mere provisions of a theory. The step now proposed to be taken was to superadd to the prohibitions themselves the principle of their supremacy as matters of fundamental law, and to enable the national judiciary to make that supremacy effectual. Almost all the restraints imposed by the Articles of Confederation upon the States could be removed or relaxed by the consent of the Congress to the doing of what was otherwise prohibited. In the first draught of the Constitution, the committee of detail inserted four absolute prohibitions, which could not be removed by Congress itself. These related to the coining of money, the granting of letters of marque and reprisal, the making of treaties, alliances, and confederations, and the granting of titles of nobility. All the other restraints on the States were to be operative or inoperative, according to the pleasure of Congress.[300] Among these were included bills of credit; laws making other things than specie a tender in payment of debts; the laying of imposts or duties on imports; the keeping of troops or ships of war in time of peace; the entering into agreements or compacts with other States, or with foreign powers; and the engaging in war, when not invaded, or in danger of invasion before Congress could be consulted. The enactment of attainder and _ex post facto_ laws, and of laws impairing the obligation of contracts, was not prohibited at all. But when these various subjects came to be regarded more closely, it was perceived that the list of absolute prohibitions must be considerably enlarged. Thus the power of emitting bills of credit, which had been the fruitful source of great evils, must either be taken away entirely, or the contest between the friends and the opponents of paper money would be transferred from the State legislatures to Congress, if Congress should be authorized to sanction the exercise of the power. Fears were entertained that an absolute prohibition of paper money would excite the strenuous opposition of its partisans against the Constitution; but it was thought best to take this opportunity to crush it entirely; and accordingly the votes of all the States but two were given to a proposition to prohibit absolutely the issuing of bills of credit.[301] To the same class of legislation belonged the whole of that system of laws by which the States had made a tender of certain other things than coin legal satisfaction of a debt. By placing this class of laws under the ban of a strict prohibition, not to be removed by the consent of Congress in any case, the mischiefs of which they had been a fruitful source would be at once extinguished. This was accordingly done, by unanimous consent.[302] At this point, the kindred topic of the obligation of contracts presented itself to the mind of Rufus King, suggested doubtless by a provision in the Ordinance then recently passed by Congress for the government of the Northwestern Territory.[303] The idea of a special restraint on legislative power, for the purpose of rendering inviolate the obligation of contracts, appears to have originated with Nathan Dane, the author of that Ordinance. It was not embraced in the resolve of 1784, reported by Mr. Jefferson, which contained the first scheme adopted by Congress for the establishment of new States in the Northwestern Territory; and it first appears in our national legislation in the Ordinance of 1787. Its transfer thence into the Constitution of the United States was a measure of obvious expediency, and indeed of clear necessity. In the Ordinance, Congress had provided a system of fundamental law, intended to be of perpetual obligation, for new communities, whose legislative power was to be moulded by certain original maxims of assumed justice and right. The opportunity thus afforded for shaping the limits of political sovereignty according to the requirements of a preconceived policy, enabled the framers of the Ordinance to introduce a limitation, which is not only peculiar to American constitutional law, but which, like many features of our institutions, grew out of previous abuses. In the old States of the Confederacy, from the time when they became self-governing communities, the power of a mere majority had been repeatedly exercised in legislation, without any regard to its effect on the civil rights and remedies of parties to existing contracts. The law of debtor and creditor was not only subjected to constant changes, but the nature of the change depended in many of the States upon the will of the debtor class, who formed the governing majority. So pressing were the evils thus engendered, that, when the framers of the Ordinance came to provide for the political existence of communities whose institutions they were to dictate, they determined to impose an effectual restraint on legislative power; and they accordingly provided, in terms much more stringent than were afterwards employed in the Constitution, that no law should have effect in the Territory which should in any manner whatever interfere with or affect private contracts or engagements previously made.[304] The framers of the Constitution were not engaged in the same work of creating new political societies, but they were to provide for such surrenders by existing States of their present unquestioned legislative authority, as the dictates of sound policy and the evils of past experience seemed to require. When this subject was first brought forward in the Convention, the restriction was made to embrace all retrospective laws bearing upon contracts, which were supposed to be included in the term "_ex post facto_ laws." It being ascertained, however, that the latter phrase would not, in its usual acceptation, extend to civil cases, it became necessary to consider how such cases were to be provided for, and how far the prohibition should extend. The provision of the Ordinance was regarded as too sweeping; no legislature, it was said, ever did or can altogether avoid some retrospective action upon the civil relations of parties to existing contracts, and to require it would be extremely inconvenient. At length, a description was found, which embodied the extent to which the prohibition could with propriety be carried. The legislatures of the States were restrained from passing any "law impairing the obligation of contracts";--a provision that has been found amply sufficient, and attended with the most salutary consequences, under the interpretation that has been given to it.[305] Bills of attainder and _ex post facto_ laws, which had not been included in the prohibitions on the States by the committee of detail, were added by the Convention to the list of positive restrictions, which was thus completed. In the class of conditional prohibitions, or those acts which might be done by the States with the consent of Congress, the committee of detail had placed the laying of "imposts or duties on imports." To this the Convention added "exports," in order to make the restriction applicable both to commodities carried out of and those brought into a State. But this provision, as thus arranged, would obviously make the commercial system extremely complex and inconvenient. On the one hand, the power to lay duties on imports had been conferred upon the general government, for the purposes of revenue, and to leave the States at liberty, with the consent of Congress, to lay additional duties, would subject the same merchandise to separate taxation by two distinct governments. On the other hand, if the States should be deprived of all power to lay duties on exports, they would have no means of defraying the charges of inspecting their own productions. At the same time, it was apparent that, under the guise of inspection laws, if such laws were not to be subject to the revision of Congress, a State situated on the Atlantic, with convenient seaports, could lay heavy burdens upon the productions of other States that might be obliged to pass through those ports to foreign markets. Again, if the States should be deprived of all power to lay duties on imports, they could not encourage their own manufactures; and if allowed to encourage their own manufactures by such State legislation, it must operate not only upon imports from foreign countries, but upon imports from other States of the Union, which would revive all the evils that had flowed from the want of general commercial regulations. To prevent these various mischiefs, the Convention adopted three distinct safeguards. They provided, first, by an exception, that the States might, without the consent of Congress, lay such duties and imposts as "may be absolutely necessary for executing their inspection laws"; second, that the net produce of all duties and imposts laid by any State, whether with or without the consent of Congress, shall be for the use of the Treasury of the United States; third, that all such State laws, whether passed with or without the previous consent of Congress, shall be subject to the revision and control of Congress.[306] There is, therefore, a twofold remedy against any oppressive exercise of the State power to lay duties for purposes of inspection. The question whether the particular duties exceed what is absolutely necessary for the execution of an inspection law, may be made a judicial question; and in addition to this, the law imposing the inspection duty is at all times subject to the revision and control of Congress. Any tendency to lay duties or imposts for purposes of revenue or protection, is checked by the requirement that the net produce of all duties or imposts laid by any State on imports or exports shall be paid over to the United States, and such tendency may moreover be suppressed by Congress at any time, by the exercise of its power of revision and control. In order to vest the supervision and control of the whole subject of navigation in Congress, it was further provided that no State, without the consent of Congress, shall lay any duty of tonnage. An exception, proposed by some of the Maryland and Virginia members, with a view to the situation of the Chesapeake Bay, illustrates the object of this provision. They desired that the States might not be restrained from laying duties of tonnage "for the purpose of clearing harbors and erecting light-houses." It was perhaps capable of being contended, that, as the regulation of commerce was already agreed to be vested in the general government, the States were restrained by that general provision from laying tonnage duties. The object of the special restriction was, to make this point entirely certain; and the object of the proposed exception was to divide the commercial power, and to give the States a concurrent authority to regulate tonnage for a particular purpose. But a majority of the States considered the regulation of tonnage an essential part of the regulation of trade. They adopted the suggestion of Mr. Madison, that the regulation of commerce was, in its nature, indivisible, and ought to be wholly under one authority. The exception was accordingly rejected.[307] The same restriction, with the like qualification of the consent of Congress, was applied to the keeping of troops or ships of war in time of peace, entering into agreements or compacts with another State or a foreign power, or engaging in war, unless actually invaded or in such imminent danger as will not admit of delay.[308] FOOTNOTES: [232] Art. VII. § 1 of the first draft of the Constitution. Elliot, V. 378. [233] August 18. Elliot, V. 440. [234] A committee of one member from each State. [235] Elliot, V. 441. To the same grand committee was afterwards referred the subject of the militia. See _infra_. [236] August 21. Elliot, V. 451. [237] August 22. Ibid. 462. [238] See the proceedings which took place, August 22, 24, and 25. Elliot, V. 462, 463, 464, 471, 475-477. [239] Elliot, V. 476, 477. Mr. Madison says, "This proposition, as being unnecessary, was disagreed to"; that is, unnecessary as a security of the _old debts_ of the United States. [240] Ibid. 506, 507. [241] Elliot, V. 478, 479. [242] Constitution, Art. I. §9. See the proceedings which took place on the proposition of the Maryland delegates. Elliot, V. 478, 479, 483, 502, 545. [243] Elliot, V. 543. Constitution, Art. I. § 8, clause 1. [244] Elliot, V. 439. [245] Ibid. 506, 507. [246] Ibid. 434. Journal, Elliot, I. 245. [247] See the debate, and Mr. Madison's explanation of his vote, Elliot, V. 434, 435, and the note on the latter page. [248] Constitution, Art. I. § 8, clause 9. [249] Ibid., clause 11. [250] Elliot, V. 436. [251] That is to say, it is the same crime, committed on the high seas, that is denominated robbery when committed on the land. [252] Madison, Elliot, V. 436, 437. [253] In the clause as it passed the Convention, the offence of _counterfeiting_ was placed with the other crimes which Congress was to "define" and "punish"; but, on the revision of the Constitution, counterfeiting was placed in a separate clause, under the term "to provide for the punishment of," &c. See Art. I. § 8, clauses 6, 10. [254] Elliot, V. 438, 439. [255] Elliot, V. 440, 510, 511. [256] Ibid. 442. [257] Ibid. 443. [258] Ibid. 440. [259] Elliot, V. 510, 511. Constitution, Art. 1. § 8, clause 12. [260] Elliot, V. 443. [261] Art. VII. § 1 of the first draft. Elliot, V. 379. [262] Ibid. 440. [263] Aug 18. Elliot, V. 445. [264] Constitution, Art. I § 8, cl. 16. [265] Art. I. § 8, cl. 15. Ibid. p. 467. [266] Constitution, Art. I. § 8, cl. 18. [267] Elliot, V. 447. [268] See the statutes of Massachusetts and Connecticut, &c. cited in Curtis on Copyright, pp. 77, 78, 79. [269] _Ante_, Chap. IX. [270] Elliot, V. 510, 511, 512. [271] _Ante_, Vol. I. Book III. ch. 5, p. 291 _et seq._ [272] Resolve of October 10, 1780. Journals, VI. 325. [273] Resolve of April 23, 1784. Journals, IX. 153. [274] March 16, 1785. Journals, X. 79. See _ante_, Vol. I. p. 299. [275] See the note on the authorship of the Ordinance of 1787, in the Appendix to this volume. [276] _Ante_, Chap. IV. p. 77, note. [277] See the proceedings concerning Kentucky, in 1788. Journals, XIII. 16, 32, 51, 52, 55. [278] The Federalist, No. 38. [279] The passage quoted from Mr. Jefferson, _ante_, p. 77, also shows that strong doubts were felt in Congress, in 1784, respecting their power to admit new States formed out of unoccupied territory. Indeed, the whole of the proceedings upon Mr. Jefferson's measure of April 23, 1784, show that the powers of Congress over the territory that had been acquired under the cession of Virginia were very variously regarded by the different delegates. See Journals, IX. 138-156. The State of South Carolina voted against the resolve on its final passage, and after it had been modified to meet some of the objections raised. [280] I think we are to understand Mr. Madison's assertion in the Federalist,--that what had been done by Congress in relation to the Northwestern Territory was without constitutional authority,--to mean, that it had been done without the authority of any proper constitutional provision. Mr. Madison himself, being a member of Congress in 1783, voted for the acceptance of a report, by the adoption of which Congress settled the conditions on which the cession of Virginia was to be received by the United States. These conditions embraced the whole of the three fundamental points, that the territory should be held and disposed of for the common benefit of the United States, that it should be divided into States, and that those States should be admitted into the Union. So that Mr. Madison was a party to the arrangement by which Congress undertook to hold out these promises to the States. (Journals of Congress for September 13, 1783, VIII. 355-359.) But he was not a member of Congress in 1784, when Mr. Jefferson's measure was adopted; and although he was a member in 1787, when the Ordinance was adopted, he was at that time in attendance upon the national Convention, and consequently never voted upon the Ordinance. His participation in the proceedings of the Convention, by which the necessary power was created, shows his sense of its necessity. [281] See especially the cession by Virginia, of March 1, 1784. Journals of Congress, IX. 67. Cession by Massachusetts, April 19, 1785. Journals, X. 128. Cession by Connecticut, September 13, 1786. Journals, XI. 221. Also the resolve of Congress passed, in anticipation of these cessions, October 10, 1780. Journals, VI. 325. [282] Resolution 10. Madison, Elliot, V. 128. [283] Art. XVII. of the draft prepared by the committee of detail. Elliot, V. 381. [284] August 18. Elliot, Vol. V. p. 439. [285] August 29. Elliot, V. 492-497. [286] Ibid. 492, 493. [287] Ibid. 493. [288] See the vote on a proposition moved by Mr. Carroll for a recommitment for the purpose of asserting in the Constitution the right of the United States to the lands ceded by Great Britain in the treaty of peace. New Jersey, Delaware, and Maryland alone voted for the recommitment. Elliot, V. 493, 494. [289] Elliot, V. 495. [290] Ibid. 496. New Jersey, Delaware, and Maryland, _ay_. [291] When the Constitution was finally revised, the word "hereafter" was left out of the first clause of the third section of article fourth, apparently because the phraseology of the clause was sufficient, without it, to save the case of Vermont, which was regarded as not being within the "_jurisdiction_," although it was within the asserted _limits_, of the State of New York. [292] Elliot, V. 496, 497. [293] The cession by South Carolina of all its "right, title, interest, jurisdiction, and claim" to the "territory or tract of country" lying, within certain northern and southern limits, between the western boundary of that State and the river Mississippi, was in fact made and accepted in Congress, August 9-10, 1787, twenty days before the territorial clause was finally settled in the Convention, which took place August 30. (Journals of the Old Congress, XII. 129-139. Madison, Elliot, V. 494-497.) On the 20th of October of the same year, the Congress passed a resolution urging the States of North Carolina and Georgia to cede their Western claims. This request was not complied with until after the Constitution had gone into operation. The cession of North Carolina was made February 25, 1790; that of Georgia, April 24, 1802. [294] It is not my purpose to enter into the argument on this question. I have recently had occasion professionally to maintain that the territorial clause is applicable to all territorial cessions made to the United States, whether by States of the Union or by foreign States, and that it clothes the government with a full legislative power over such territories and their inhabitants, which is subject only to the particular restrictions enumerated in the Constitution. Perhaps it is needless for me to add that I entertain this opinion. But it is rejected by others, and, in the present state of judicial interpretation of this part of the Constitution, by the supreme tribunal, it is not easy to determine what will finally become the settled construction. [295] Constitution, Art. I. § 9, cl. 2. [296] See Elliot, V. 484. The three States were North Carolina, South Carolina, and Georgia. [297] Elliot, V. 462, 463. [298] Elliot, V. 488. [299] Ibid. 467. Constitution, Art. I. § 9, cl. 8. [300] Articles XII., XIII. of the first draft, Elliot, V. 381. [301] Elliot, V. 484, 485. [302] Elliot, V. 484, 485. [303] The Ordinance, which was passed July 13, was published at length in "The Pennsylvania Herald," a newspaper printed at Philadelphia, on the 25th of July (1787). Mr. King's motion was made August 28, and is described by Mr. Madison as a motion "to add, in the words used in the Ordinance of Congress establishing new States, a prohibition on the States to interfere in private contracts." Elliot, V. 485. [304] See the clause of the Ordinance, cited _ante_, Vol. I. p. 452, note 2. [305] Elliot, V. 485, 488, 545, 546. [306] Elliot, V. 479, 484, 486, 502, 538, 539, 540, 545, 548. [307] By a vote of six States against four. Elliot, V. 548. [308] Elliot, V. 548. CHAPTER XII. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--SUPREMACY OF THE NATIONAL GOVERNMENT.--DEFINITION AND PUNISHMENT OF TREASON. Among the resolutions sent to the committee, there were four which had reference to the supremacy of the government of the United States. They declared that it ought to consist of a supreme legislative, executive, and judiciary;--that its laws and treaties should be the supreme law of the several States, so far as they related to the States or their citizens and inhabitants, and that the judiciaries of the States should be bound by them, even against their own laws;--that the officers of the States, as well as of the United States, should be bound by oath to support the Articles of Union;--and that the question of their adoption should be submitted to assemblies of representatives to be expressly chosen by the people of each State under the recommendation of its legislature.[309] In order to give effect to these precise and stringent directions, the committee of detail introduced into their draft of a constitution a preamble; two articles asserting and providing for the supremacy of the national government; a provision for the oath of officers; and a declaration of the mode in which the instrument was intended to be ratified. The preamble of the Constitution, as originally reported by this committee, differed materially from that subsequently framed and adopted. It spoke in the name of the people of the States of New Hampshire, Massachusetts, &c., who were said "to ordain, declare, and establish this Constitution for the government of ourselves and our posterity"; and it stated no special motives for its establishment. In this form it was unanimously adopted on the 7th of August. But when, at a subsequent period, the instrument was sent to another committee, whose duty it was to revise its style and arrangement, this phraseology was changed, and the preamble was made to speak in the name of the people of the United States, and to declare the purposes for which _they_ ordained and established the Constitution.[310] The language thus employed in the preamble has justly been considered as having an important connection with the provisions made for the ratification of the instrument to which it was prefixed. The articles specially designed to assert and carry out the supremacy of the national government, as they came from the committee, embodied the resolutions on the same subject which had passed the Convention. The only material addition consisted in the qualification, that the legislative acts of the United States, which were to be the supreme law, were such as should be made in pursuance of the Constitution. Subsequently, the article was so amended as to make the Constitution, the laws passed in pursuance of it, and the treaties of the United States, the supreme law of the land, binding upon all judicial officers.[311] It is a remarkable circumstance, that this provision was originally proposed by a very earnest advocate of the rights of the States,--Luther Martin. His design, however, was to supply a substitute for a power over State legislation, which had been embraced in the Virginia plan, and which was to be exercised through a negative by the national legislature upon all laws of the States contravening in their opinion the Articles of Union, or the treaties subsisting under the authority of the Union.[312] The purpose of the substitute was to change a legislative into a judicial power, by transferring from the national legislature to the judiciary the right of determining whether a State law, supposed to be in conflict with the Constitution, laws, or treaties of the Union, should be inoperative or valid. By extending the obligation to regard the requirements of the national Constitution and laws to the judges of the State tribunals, their supremacy in all the judicatures of the country was secured. This obligation was enforced by the oath or affirmation to support the Constitution of the United States;[313] and, as we shall see hereafter, lest this security should fail, the final determination of questions of this kind was drawn to the national judiciary, even when they might have originated in a State tribunal.[314] Closely connected in purpose with these careful provisions was the mode in which the Constitution was to be ratified. The committee of detail had made this the subject of certain articles in the Constitution itself.[315] But the committee of revision afterwards presented certain resolutions in the place of two of those articles, which were adopted by the Convention after the Constitution had been signed; leaving in the instrument itself nothing but the article which determined the number of States whose adoption should be sufficient for establishing it.[316] These resolutions pursued substantially the mode previously agreed upon, of a transmission of the instrument to Congress, a recommendation by the State legislatures to the people to institute representative assemblies to consider and decide on its adoption, and a notice of their action to Congress by each State assembly so adopting it. The purpose of this form of proceeding, so far as it was connected with the primary authority by which the Constitution was to be enacted, has been already explained.[317] What then were the meaning and scope of that supremacy which the framers of the Constitution designed to give to the acts of the government which they constructed? In seeking an answer to this question, it is necessary to recur, as we have constantly been obliged to do, to the nature of the government which the Constitution was made to supersede. In that system, the experiment had been tried of a union of States,--each possessed of a complete government of its own,--which was intended to combine their several energies for the common defence and the promotion of the general welfare. But this combined will of distinct communities, expressed through the action of a common agent, was wholly unable to overcome the adverse will of any of them expressed by another and separate agent, although the objects of the powers bestowed on the confederacy were carefully stated and sufficiently defined in a public compact. Thus, for example, the treaty-making power was expressly vested in the United States in Congress assembled; but when a treaty had been made, it depended entirely upon the separate pleasure of each State whether it should be executed. If the State governments did not see fit to enforce its provisions upon their own citizens, or thought proper to act against them, there was no remedy, both because the Congress could not legislate to control individuals, and because there was no department clothed with authority to compel individuals to conform their conduct to the requirements of the treaty, and to disregard the opposing will of the State. This defect was now to be supplied, by giving to the national authority, not only theoretically but practically, a supremacy over the authority of each State. But this was not to be done by annihilating the State governments. The government of every State was to be preserved; and so far as its original powers were not to be transferred to the general government, its authority over its own citizens and within its own territory must, from the nature of political sovereignty, be supreme. There were, therefore, to be two supreme powers in the same country, operating upon the same individuals, and both possessed of the general attributes of sovereignty. In what way, and in what sense, could one of them be made paramount over the other? It is manifest that there cannot be two supreme powers in the same community, if both are to operate upon the same objects. But there is nothing in the nature of political sovereignty to prevent its powers from being distributed among different agents for different purposes. This is constantly seen under the same government, when its legislative, executive, and judicial powers are exercised through different officers; and in truth, when we come to the law-giving power alone, as soon as we separate its objects into different classes, it is obvious that there may be several enacting authorities, and yet each may be supreme over the particular subject committed to it by the fundamental arrangements of society. Supreme laws, emanating from separate authorities, may and do act on different objects without clashing, or they may act on different parts of the same object with perfect harmony. They are inconsistent when they are aimed at each other, or at the same indivisible object.[318] When this takes place, one or the other must yield; or, in other terms, one of them ceases to be supreme on the particular occasion. It was the purpose of the framers of the Constitution of the United States to provide a paramount rule, that would determine the occasions on which the authority of a State should cease to be supreme, leaving that of the United States unobstructed. Certain conditions were made necessary to the operation of this rule. The State law must conflict with some provision of the Constitution of the United States, or with a law of the United States enacted in pursuance of the constitutional authority of Congress, or with a treaty duly made by the authority of the Union. The operation of this rule constitutes the supremacy of the national government. It was supposed that, by a careful enumeration of the objects to which the national authority was to extend, there would be no uncertainty as to the occasions on which the rule was to apply; and as all other objects were to remain exclusively subject to the authority of the States within their respective territorial limits, the operation of the rule was carefully limited to those occasions. The highly complex character of a system in which the duties and rights of the citizen are thus governed by distinct sovereignties, would seem to render the administration of the central power--surrounded as it is by jealous and vigilant local governments--an exceedingly difficult and delicate task. Its situation is without an exact parallel in any other country in the world. But it possesses the means which no government of a purely federal character has ever enjoyed, of an exact determination by itself of its own powers; because every conflict between its authority and the authority of a State may be made a judicial question, and as such is to be solved by the judicial department of the nation. This peculiar device has enabled the government of the United States to act successfully and safely. Without it, each State must have been left to determine for itself the boundaries between its own powers and those of the Union; and thus there might have been as many different determinations on the same question as the number of the States. At the same time, this very diversity of interpretation would have deprived the general government of all power to enforce, or even to have, an interpretation of its own. Such a confused and chaotic condition had marked the entire history of the Confederation. It was terminated with the existence of that political system, by the establishment of the rule which provides for the supremacy of the Constitution of the United States, and by making one final arbiter of all questions arising under it. By means of this skilful arrangement, a government, in which the singular condition is found of separate duties prescribed to the citizen by two distinct sovereignties, has operated with success. That success is to be measured not wholly, or chiefly, by the diversities of opinion on constitutional questions that may from time to time prevail; nor by the means, aside from the Constitution, that may sometimes have been thought of for counteracting its declared interpretation; but by the practical efficiency with which the powers of the Union have operated, and the general readiness to acquiesce in the limitations given to those powers by the department in which their construction is vested. This general acquiescence has steadily increased, from the period when the government was founded until the present day; and it has now come to be well understood, that there is no alternative to take the place of a ready submission to the national will, as expressed by or under the Constitution interpreted by the proper national organ, excepting a resort to methods that lie wholly without the Constitution, and that would completely subvert the principles on which it was founded. For while it is true that the people of each State constitute the sovereign power by which the rights and duties of its inhabitants not involved in the Constitution of the United States are to be exclusively governed, it is equally true that they do not constitute the whole of the sovereign power which governs those relations of its inhabitants that are committed to the national legislature. The framers of the Constitution resorted to an enactment of that instrument by the people of the United States, and employed language which speaks in their name, for the express purpose, among other things, of bringing into action a national authority, on certain subjects. The organs of the general government, therefore, are not the agents of the separate will of the people of each State, for certain specified purposes, as its State government is the agent of their separate will for all other purposes; but they are the agents of the will of a collective people, of which the inhabitants of a State are only a part. That the will of the whole should not be defeated by the will of a part, was the purpose of the supremacy assigned to the Constitution of the United States; and that the rights and liberties of each part, not subject to the will of the whole, should not be invaded, was the purpose of the careful enumeration of the objects to which that supremacy was to extend. In this supremacy of the national government within its proper sphere, and in the means which were devised for giving it practical efficiency, we are to look for the chief cause that has given to our system a capacity of great territorial extension. It is a system in which a few relations of the inhabitants of distinct States are confided to the care of a central authority; while, for the purpose of securing the uniform operation of certain principles of justice and equality throughout the land, particular restraints are imposed on the power of the States. With these exceptions, the several States remain free to pursue such systems of legislation as in their own judgment will best promote the interest and welfare of their inhabitants. Such a division of the political powers of society admits of the union of far greater numbers of people and communities, than could be provided for by a single representative government, or by any other system than a vigorous despotism. Many of the wisest of the statesmen of that period, as we now know, entertained serious doubts whether the country embraced by the thirteen original States would not be too large for the successful operation of a republican government, having even so few objects committed to it as were proposed to be given to the Constitution of the United States. If those objects had been made to embrace all the relations of social life, it is extremely probable that the original limits of the Union would have far exceeded the capacities of a republican and representative government, even if the first difficulties arising from the differences of manners, institutions, and local laws could have been overcome. But these very differences may be, and in fact have been, made a means of vast territorial expansion, by the aid of a principle which has been placed at the foundation of the American Union. Let a number of communities be united under a system which embraces the national relations of their inhabitants, and commits a limited number of the objects of legislation to the central organs of a national will, leaving their local and domestic concerns to separate and local authority, and the growth of such a nation may be limited only by its position on the surface of the earth. The ordinary obstacles arising from distance, and the physical features of the country, may be at once overcome for a large part of the purposes of government, by this division of its authority. The wants and interests of civilized life, modified into almost endless varieties, by climate, by geographical position, by national descent, by occupation, by hereditary customs, and by the accidental relations of different races, may in such a state of things be governed by legislation capable of exact adaptation to the facts with which it has to deal. In this way, separate States under the republican form may be multiplied indefinitely. Now what is required in order to make such a multiplication of distinct States at the same time a national growth, is the operation of some principle that will preserve their national relations to the control of a central authority. This is effected by the supremacy of the Constitution of the United States, against which no separate State power can be exerted. This supremacy secures the republican form of government, the same general principles and maxims of justice, and the same limitations between State and national authority, throughout all the particular communities; while, at the same time, it regulates by the same system of legislation, applied throughout the whole, the rights and duties of individuals that are committed to the national authority. It was for the want of this supremacy and of the means of enforcing it, that the Confederation, and all the other federal systems of free government known in history, had failed to create a powerful and effective nationality; and it is precisely this, which has enabled the Constitution of the United States to do for the nation what all other systems of free government had failed to accomplish. In this connection, it seems proper to state the origin and purpose of that definition of treason which is found in the Constitution, and which was placed there in order, on the one hand, to defend the supremacy of the national government, and on the other, to guard the liberty of the citizen against the mischiefs of constructive definitions of that crime. No instructions had been given to the committee of detail on this subject. They, however, deemed it necessary to make some provision that would ascertain what should constitute treason against the United States. They resorted to the great English statute of the 25th Edward III.; and from it they selected two of the offences there defined as treason, which were alone applicable to the nature of the sovereignty of the United States. The statute, among a variety of other offences, denominates as treason the levying of war against the king in his realm, and the adhering to the king's enemies in his realm, giving them aid and comfort in the realm, or elsewhere.[319] The levying of war against the government, and the adhering to the public enemy, giving him aid and comfort, were crimes to which the government of the United States would be as likely to be exposed as any other sovereignty; and these offences would tend directly to subvert the government itself. But to compass the death of the chief magistrate, to counterfeit the great seal or the coin, or to kill a judge when in the exercise of his office, however necessary to be regarded as treason in England, were crimes which would have no necessary tendency to subvert the government of the United States, and which could therefore be left out of the definition of treason, to be punished according to the separate nature and effects of each of them. The committee accordingly provided that "treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them."[320] But here, it will be perceived, two errors were committed. The first was, that the levying of war against a State was declared to be treason against the United States. This opened a very intricate question, and loaded the definition with embarrassment; for, however true it might be, in some cases, that an attack on the sovereignty of a State might tend to subvert or endanger the government of the United States, yet a concerted resistance to the laws of a State, which is one of the forms of "levying war" within the meaning of that phrase, might have in it no element of an offence against the United States, and might have no tendency to injure their sovereignty. Besides, if resistance to the government of a State were to be made treason against the United States, the offender, as was well said by Mr. Madison, might be subject to trial and punishment under both jurisdictions.[321] In order, therefore, to free the definition of treason of all complexity, and to leave the power of the States to defend their respective sovereignties without embarrassment, the Convention wisely determined to make the crime of treason against the United States to consist solely in acts directed against the United States themselves. The other error of the committee consisted in omitting from the definition the qualifying words of the statute of Edward III., "giving them aid and comfort," which determine the meaning of "adhering" to the public enemy.[322] These words were added by the Convention, and the crime of treason against the United States was thus made to consist in levying war against the United States, or in adhering to _their_ enemies by the giving of aid and comfort.[323] With respect to the nature of the evidence of this crime, the committee provided that no person should be convicted of treason unless on the testimony of two witnesses. But to make this more definite, it was provided by an amendment, that the testimony of the two witnesses should be to the same overt act; and also that a conviction might take place on a confession made in open court. The punishment of treason was not prescribed by the Constitution, but was left to be declared by the Congress; with the limitation, however, that no attainder of treason should work corruption of blood, or forfeiture, except during the life of the person attainted.[324] FOOTNOTES: [309] These were the 1st, 7th, 20th, and 21st of the resolutions. _Ante_, p. 190 _et seq._, note. [310] "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." [311] The Constitution, Art. VI. (See Appendix.) [312] July 17. Elliot, V. 322. [313] The Constitution. Art. VI. [314] Ibid. Art. III. § 2. [315] Articles XXI., XXII., XXIII. of their draft. Elliot, V. 381. [316] The Constitution, Art. VII. [317] _Ante_, p. 177, _et seq._ The resolutions may be found in Elliot, V. 541 (Sept. 13). But the proceedings on them are not found in Mr. Madison's Minutes, or in the Journal of the Convention. The official record of their unanimous adoption was laid before Congress on the 28th of September, 1787, and it bears date September 17th. It recites the presence in Convention of all the states that attended excepting New York, and in the place of that _State_ stands "Mr. Hamilton _from_ New York." This record precedes the official letter addressed by the Convention to Congress. See Journals of Congress for September 28, 1787, Vol. XII. pp. 149-165. [318] See a speech made by Hamilton in the Convention of New York. Works, II. 462. [319] 4 Blackstone's Com., Book IV. ch. 6. [320] Art. VI. § 2 of the first draft of the Constitution. Elliot, V. 379. [321] Elliot, V. 450. [322] The effect of these words is as if the statute read "adhering to the enemy _by_ giving him aid and comfort," and not as if they were two separate offences. [323] See the debate, Elliot, V. 447-451. [324] Ibid. Art. III. § 3 of the Constitution. CHAPTER XIII. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--ELECTION AND POWERS OF THE PRESIDENT. In describing the manner in which the Constitution and powers of the Senate were finally arranged, I have already had occasion to state, that, after the report of the committee of detail came in,--vesting the appointment of the President in the national legislature, creating a term of seven years, and making the incumbent ineligible a second time,--a direct election by the people was negatived by a large majority. This mode of election, as a means of removing the appointment from the legislature, would have been successful, but it was inadmissible on other accounts. In the first place, it would have given to the government a character of complete consolidation, so far as the executive department was concerned, to have vested the election in the people of the United States as one community. In the second place, not only would the States, as sovereignties, have been excluded from representation in this department, but the slaveholding States would have had a relative weight in the election only in the proportion of their free inhabitants. On the other hand, to provide that the executive should be appointed by electors, to be chosen by the people of the States, involved the necessity of prescribing some rule of suffrage for the people of all the States, or of adopting the existing rules of the States themselves. Probably it was on account of this embarrassment, that a proposition for electors to be chosen in this mode was negatived, by a bare majority, soon after the vote rejecting a direct election of the President by the people.[325] There remained the alternatives of an election by one or both of the houses of Congress, or by electors appointed by the States in a certain ratio, or by electors appointed by Congress. The difficulty of selecting from these various modes led the Convention to adhere to an election by the two houses; and when the disadvantages of this plan, already described, had developed the necessity for some other mode of appointment, the relations between the Senate and the executive were, as we have seen, sent to a grand committee, who devised a scheme for their adjustment. In this plan it was proposed that each State should appoint, in such manner as its legislature might direct, a number of electors equal to the whole number of senators and representatives in Congress to which the State might be entitled under the provisions of the Constitution already agreed upon. The advantages of this plan were, that it referred the mode of appointing the electors to the States themselves, so that they could adopt a popular election, or an election by their legislatures, as they might prefer; and that it would give to each State the same weight in the choice of the President that it was to have in the two houses of Congress, provided a majority or a plurality of the electoral votes were to determine the appointment. The committee recommended that the electors should meet in their respective States, on the same day, and vote by ballot for two persons, one of whom, at least, should not be an inhabitant of the same State with themselves; and that the person having the greatest number of votes, if such number were a majority of all the electoral votes, should be the President. To this part of the plan, there was likely to be little objection. But the mode of electing the President in case of a failure to concentrate a majority of the electoral votes upon one person, or in case more than one person should have such a majority, was the most difficult part of the whole scheme. The object of the committee was to devise a process which should result in the election both of a President and a Vice-President; and they proposed to make the person having the next largest number of electoral votes the Vice-President. If two of the persons voted for should have a majority of all the votes, and the same number of votes, then the Senate were immediately to choose one of them, by ballot, as the President; if no person should have such a majority, then the Senate were to choose the President by ballot from the five highest on the list of candidates returned by the electors. If a choice of the President had been effected by the electoral votes, the person having the next highest number of electoral votes was to be the Vice-President; and if there were two or more having an equal number of electoral votes, the Senate were to choose one of them as Vice-President. From the proceedings which took place upon this plan, it appears that what many of the framers of the Constitution most apprehended was, that the votes in the electoral bodies would not be sufficiently concentrated to effect a choice, from want of the requisite general knowledge of the persons who might be considered in different parts of the Union as fit candidates for these high offices; and consequently that the election would be thrown into such other body as might be directed to make it after a failure in the action of the electors. It is a remarkable proof of their wisdom, that, although intimations began to appear in the public prints, as soon as the Constitution was published, that Washington would be the first President of the United States,--an expectation that must, therefore, have been entertained by the members of the Convention before they had finished their labors,--they were at no time under the influence of this pleasing anticipation.[326] They kept steadily in view a state of things in which, from the absence of statesmen of national reputation and influence, and from the effect of local preferences, no choice would be made by the electors. Hence their solicitude to provide for the secondary election, in such a way as to admit of a re-election of the incumbent. It was soon found that between the President and the Senate there would be a mutual connection and influence, which would be productive of serious evils, whether he were to be made eligible or ineligible a second time, if the Senate were to have the appointment after the electors had failed to make a choice. To remedy this, many of the members, among whom was Hamilton, preferred to let the highest number of electoral votes, whether a majority or not, appoint the President. As the grand committee had proposed to reduce the term of office from seven to four years, and to strike out the clause making the incumbent ineligible,--a change which met the approbation of a large majority of the States,--it became still more necessary to prevent any resort to the Senate for a secondary election. But an appointment by less than a majority of the electoral votes presented, on the other hand, the serious objection that the President might owe his appointment to a minority of the States. To preserve, as far as possible, a federal character for the government, in some of its departments, was justly regarded as a point of great importance. One branch of the legislature had become a depositary of the democratic power of a majority of the people of the United States;--the other branch was the representative of the States in their corporate capacities;--the President was to be in some sense a third branch of the legislative power, by means of his limited control over the enactment of laws;--and it was, therefore, something more than a mere question of convenience, whether he should, at the final stage of the process, be elected by a less number than a majority of all the States. That part of the plan which proposed to elect him by a majority of all the electoral votes, giving to each State as many votes as it was to have in both houses of Congress, might make the individual, when so elected, theoretically the choice of a majority of the people of the United States, although not necessarily the choice of a majority of the States. But there was a peculiar feature of this plan,--afterwards, in the year 1804, changed to a more direct method,--by which the electors were required to return their votes for two persons, without designating which of them was their choice for President, and which for Vice-President, the designation being determined by the numbers of votes found to be given for each person. This method of voting increased the chances of a failure to choose the President by the electoral votes. It is not easy to understand why the framers of the Constitution adhered to it; although it is probable that its original design was to prevent corruption and intrigue. Whatever its purpose may have been, it served to make still more prominent the expediency, not only of removing the ultimate election from the Senate, but of providing some mode of conducting that election by which an appointment by a minority of the States would be prevented, when a majority of the electoral votes had not united upon any one individual, or had united upon two. The plan which had been prepared by the grand committee, and which adjusted the relations between the executive and the Senate respecting appointments and treaties, had left no body in the government so likely to be free from intimate relations with the President, and at the same time so capable of being made the instrument of an election, as the House of Representatives. By the fundamental principle on which that body had been agreed to be organized,--in direct contrast to the basis of the Senate,--its members were the representatives of the people inhabiting the several States, and in the business of legislation a majority of their votes was to express the will of a majority of the people of the United States. But the representatives were to be chosen in the separate States; and nothing was more easy, therefore, than to provide that, in any other function, they should act as the agents of their States, making the States themselves the real parties to the act, without doing any violence to the principle on which they were assembled for the purposes of legislation. Accordingly, as soon as a transfer of the ultimate election from the Senate to the House of Representatives was proposed, the method of voting by States was adopted, with only a single dissent.[327] The establishment of two thirds as a quorum of the States for this purpose, and the provision that a majority of all the States should be necessary to a choice, followed naturally as the proper safeguards against corruption, and were adopted unanimously. The principal office of the executive department was thus provided for; but the ultimate choice of the Vice-President remained to be regulated. This office was unknown to the draft of the Constitution prepared by the committee of detail, and was suggested only when the mode of organizing the executive, and of providing for some of the separate functions of the Senate, came to be closely considered together. We are to look for its purposes, therefore, in the provisions specially devised for the settlement of these relations. In the first place, it was apparent that the executive would be a branch of the government that ought never to be vacant. The principle which, in hereditary monarchies, on the death of the sovereign, instantly devolves the executive power upon him who stands next in a fixed order of succession, must in some degree be imitated in purely elective governments, if great mischiefs are to be avoided. The difficulty which attends its application to such governments consists not in the nature of the principle itself, but in finding a number of public functionaries who can be placed in a certain order of succession, without creating mere heirs to the succession, for that purpose alone. In hereditary governments, the members of a family, in a designated order, stand as the successive recipients of the executive office; and each of them, until he reaches the throne, may have no other function in the state than that of an heir, near or remote, to the crown, and may, without inconvenience to the public welfare, occupy that position alone. But in elective, and especially in republican governments, the succession must be devolved on some person already filling some other office; for to designate as a successor to the chief magistrate a person who has no public employment, and no other public position than that of an heir apparent, would be attended with many obvious disadvantages, in such a government. Fortunately, the peculiar construction of the Senate was found to require a presiding officer who should not be a member of the body itself. As each State was to be represented by two delegates, and as it would be important not to withdraw either of them from active participation in the business of the chamber, a presiding officer was needed who would represent neither of the States. By placing the Vice-President of the United States in this position, he would have a place of dignity and importance, would be at all times conversant with the public interests, and might pass to the chief magistracy, on the occurrence of a vacancy, attended with the public confidence and respect. This arrangement was devised by the grand committee, and was adopted with general consent. It contemplated, also, that the Vice-President, as President of the Senate, should have no vote, unless upon questions on which the Senate should be equally divided; and on account of his relation to this branch of the legislature, the ultimate election of the Vice-President, when the electors had failed to appoint him under the rule prescribed, was retained in the hands of the Senate. The rule that was to determine when the Vice-President was to succeed to the functions of the chief magistrate, was also embraced in the plan of the grand committee. It was apparent that a vacancy in the principal office might occur by death, by resignation, by the effect of inability to discharge its powers and duties, and by the consequences of an impeachment. When either of these events should occur, it was provided that the office should devolve on the Vice-President. In the case of death or resignation of the President, no uncertainty can arise. In a case of impeachment, a judgment of conviction operates as a removal from office. But the grand committee did not provide, and the Constitution does not contain any provision or direction, for ascertaining the case of an inability to discharge the powers and duties of the office. When such an inability is supposed to have occurred, and is not made known by the President himself, how is it to be ascertained? Is there any department of the government that can, with or without a provision of law, proceed to inquire into the capacity of the President, and to pronounce him unable to discharge his powers and duties? What is meant by the Constitution as _inability_ is a case which does not fall within the power of impeachment, for that is confined to treason, bribery, and other high crimes and misdemeanors. It is the case of a simple incapacity, arising from insanity, or ill health, or, as might possibly occur, from restraint of the person of the President by a public enemy. But in the former case, how shadowy are the lines which often separate the sound mind or body from the unsound! Society has had one memorable example, in modern times and in constitutional monarchy, of the delicacy and difficulty of such an inquiry;--an instance in which all the appliances of science and all the fixed rules of succession were found scarcely sufficient to prevent the rage of party, and the struggles of personal ambition, from putting the state in jeopardy.[328] With us, should such a calamity ever happen, there must be a similar effort to meet it as nearly as possible upon the principles of the Constitution, and consequently there must be a similar strain on the Constitution itself. In order to make still further provision for the succession, Congress were authorized to declare by law what officer should act as President, in case of the removal, death, resignation, or inability of both the President and the Vice-President, until the disability should be removed, or a new President should be elected. The mode of choosing the electors was, as we have seen, left to the legislatures of the States. Uniformity, in this respect, was not essential to the success of this plan for the appointment of the executive, and it was important to leave to the people of the States all the freedom of action that would be consistent with the free working of the Constitution. But it was necessary that the time of choosing the electors, and the day on which they were to give their votes, should be prescribed for all the States alike. These particulars were, therefore, placed under the direction of Congress, with the single restriction, that the day of voting in the electoral colleges should be the same throughout the United States. In order to make the electors a distinct and independent body of persons, appointed for the sole function of choosing the President and Vice-President, it was provided further, that no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.[329] The electors were required to meet in their respective States, and to vote by ballot for two persons, one of whom at least should not be an inhabitant of the same State with themselves. Having made a list of all the persons voted for, and of the number of votes given for each, they were to sign and certify it, and to transmit it sealed to the seat of government of the United States, directed to the President of the Senate, who, in the presence of the Senate and the House of Representatives, was to open all the certificates, and the votes were then to be counted. Such was the method devised by the framers of the Constitution for filling the executive office. Experience has required some changes to be made in it. It has been found that to require the electors to designate the persons for whom they vote as the President and Vice-President, respectively, has a tendency to secure a choice by the electoral votes, and therefore to prevent the election from being thrown into the House of Representatives; and it has also been deemed expedient, when the election has devolved on the House of Representatives, to confine the choice of the States to the three highest candidates on the list returned by the electors. These changes were made by the twelfth of the amendments to the Constitution, adopted in the year 1804, which also provides that the person having the greatest number of the electoral votes for President shall be deemed to be chosen by the electors, if such number be a majority of the whole number of electors appointed. If a choice is not made by the electors, or by the House of Representatives, before the fourth day of March next following the election, the amendment declares that the Vice-President shall act as President, "as in the case" (provided by the Constitution) "of the death or other constitutional disability of the President." In the appointment of the Vice-President, the amendment has also introduced some changes. The person having the greatest number of the electoral votes as Vice-President, if the number is a majority of all the electors appointed, is to be the Vice-President; but if no choice is thus effected, the Senate are to choose the Vice-President from the two highest candidates on the list returned by the electors; but a quorum for this purpose is to consist of two thirds of the whole number of senators, and a majority of the whole number is made necessary to a choice. The amendment further adopts the same qualifications for the office of Vice-President as had been established by the Constitution for the office of President.[330] Thus it appears, from an examination of the original Constitution and the amendment, that the most ample provision is made for filling the executive office, in all contingencies but one. If the electors fail to choose according to the rule prescribed for them, the election devolves on the House of Representatives. If that body does not choose a President before the fourth day of March next ensuing, the office devolves on the Vice-President elect, whether he has been chosen by the electors or by the Senate. But if the House of Representatives fail to choose a President, and the Senate make no choice of a Vice-President, or the Vice-President elect dies before the next fourth day of March, the Constitution makes no express provision for filling the office, nor is it easy to discover in it how such a vacancy is to be met. The Constitution, it is true, confers upon Congress authority to provide by law for the case of removal, death, resignation, or inability of _both_ the President and Vice-President, and to declare what officer shall then act as President; and it provides that the officer so designated by a law of Congress shall act accordingly, until the disability be removed, or a President shall be elected. But there is every reason to believe that this provision embraces the case of a vacancy in both offices occasioned by removal, death, resignation, or inability, not of the President and Vice-President elect, but of the President and Vice-President in office. It may be doubted whether the framers of the original Constitution intended to provide for a vacancy in both offices occasioned by the failure of the House of Representatives to elect a President and the death of the Vice-President elect, or a non-election of a Vice-President by the Senate, before the fourth day of March. Their plan was in the first instance studiously framed for the purpose of impressing on the electors the duty of concentrating their votes; and although they saw and provided for the evident necessity of an election of a President by the House of Representatives, when the electoral votes had not produced a choice, they omitted all express provision for a failure of the House to choose a President, apparently for the purpose of making the States in that body feel the importance of the secondary election, and the duty of uniting their votes. This omission was supplied by the amendment, which authorizes the Vice-President elect to act as President, when the House of Representatives have failed to choose a President, "as in the case of the death or other constitutional disability of the President." This adoption, for the case of a non-election by the House, of the mode of succession previously established by the Constitution, shows that the authority which the Constitution gave to Congress to declare by law what officer shall act as President, in case of a vacancy in both offices, was confined to the removal, death, resignation, or inability of the President and Vice-President in office, and does not refer to the President and Vice-President elect, whose term of office has not commenced.[331] The committee of detail made no provision respecting the qualifications of the President. But the grand committee, to whom the construction of the office was referred, recommended the qualifications which are to be found in the Constitution; namely, that no person shall be eligible to the office who was not born a citizen of the United States, or was not a citizen at the time of the adoption of the Constitution, and who had not attained the age of thirty-five years, and been fourteen years a resident within the United States. These requirements were adopted with unanimous assent.[332] That the executive should receive a stipend, or pecuniary compensation, was a point which had been settled in the earliest stage of the proceedings, notwithstanding the grave authority of Franklin, who was opposed to it. The speech which he delivered on this subject was based upon the maxim, that, in all cases of public service, the less profit, the greater honor. He seems to have been actuated chiefly by the fear that the government would in time be resolved into a monarchy; and he thought this catastrophe would be longer delayed, if the seeds of contention, faction, and tumult were not sown in the system, by making the places of honor places of profit. He maintained this opinion for the case even of a plural executive, which he decidedly advocated; and he instanced the example of Washington, who had led the armies of the Revolution for eight years without receiving the smallest compensation for his services, to prove the practicability of "finding three or four men, in all the United States, with public spirit enough to bear sitting in peaceful council for perhaps an equal term, merely to preside over our civil concerns, and see that our laws are duly executed." His plan was treated with the respect due to his illustrious character, but no one failed to see that it was a "Utopian idea."[333] The example of Washington was, in truth, inapplicable to the question. A patriotic Virginia gentleman, of ample fortune, was called upon, in the day of his country's greatest trial, to take the lead in a desperate struggle for independence. The nature of the war, his own eminence, his character and feelings, the poverty of a country which he foresaw would often be unable to pay even the common soldier, and his motives for embarking in the contest, all united to make the idea of compensation inadmissible to a man whose fortune made it unnecessary. Such a combination of circumstances could scarcely ever occur in the case of a chief magistrate of a regular and established government. If an individual should happen to be placed in the office, who possessed private means enough to render a salary unnecessary to his own wants, or to the dignity of the position, the duty of his example might point in precisely the opposite direction, and make it expedient that he should receive what his successors would be unable to decline. But the real question which the framers of the Constitution had to decide was, in what way could the office be constituted so as to give the people of the United States the widest range of choice among the public men fit to be placed in it. To attach no salary to the chief executive office, in a republican government, would practically confine the office to men who had inherited or accumulated wealth. The Convention determined that this mischief should be excluded. They adopted the principle of compensation for the office of chief magistrate, and when the committee of detail came to give effect to this decision, they added the provision, that the compensation shall neither be increased nor diminished during the period for which a President has been elected.[334] The limitation which confines the President to his stated compensation, and forbids him to receive any other emolument from the United States, or from any State, was subsequently introduced, but not by unanimous consent.[335] The question whether the single person in whom the executive power was to be vested should exercise it with or without the aid or control of any council of state, was one that in various ways ran through the several stages of the proceedings. As soon as it was settled that the executive should consist of a single person, the nature and degree of his responsibility, and the extent to which it might be shared by or imposed upon any other officers, became matters of great practical moment. What was called at one time a council of revision was a body distinct from a cabinet council, and was proposed for a different purpose. The function intended for it by its advocates related exclusively to the exercise of the revisionary check upon legislation. But we have seen that the nature of this check, the purposes for which it was to be established, and the practical success with which it could be introduced into the legislative system, required that the power and the responsibility should rest with the President alone. There remained, however, the further question concerning a cabinet, or council of state; an advisory body, with which some of the most important persons in the Convention desired to surround the President, to assist him in the discharge of his duties, without the power of controlling his actions, and without diminishing his legal responsibility. Such a plan not having received the sanction of the Convention, the draft of the Constitution reported by the committee of detail of course contained no provision for it. It was subsequently brought forward, and received the recommendation of a committee;[336] but the grand committee, who were charged with the adjustment of the executive office, substituted for it a different provision, which gave the President power to "require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." The friends of a council[337] regarded this arrangement of the executive office, especially with regard to the power of appointment, as entirely defective.[338] But the reason on which it was rested by the grand committee, and on which the plan of a council of state was rejected, was, that the President of the United States, unlike the executive in mixed governments of the monarchical form, was to be personally responsible for his official conduct, and that the Constitution should do nothing to diminish that responsibility, even in appearance. If it had not been intended to make the President liable to impeachment, a cabinet might have been useful, and would certainly have been necessary, if there was to be any responsibility anywhere for executive acts. But a large majority of the States preferred to interpose no shield between the President and a public accusation. He might derive any assistance from the great officers of the executive departments which Congress might see fit to establish, that he could obtain from their opinions or advice; but the powers which the Constitution was to confer on him must be exercised by himself, and every official act must be performed as his own.[339] What those powers were to be, had not been fully settled when the first draft of the Constitution came from the committee of detail. The executive function, or the power and duty of causing the laws to be duly and faithfully executed; authority to give information to Congress on the state of the Union, and to recommend measures for their consideration; power in certain cases to convene and to adjourn the two houses; the commissioning of all officers, and the appointing to office in cases not otherwise provided for by the Constitution; the receiving of ambassadors; the granting of reprieves and pardons; the chief command of the army and navy of the United States and of the militia of the several States,--were all provided for. But the foreign relations of the country were committed wholly to the Senate, as was also the appointment of ambassadors and of judges of the Supreme Court. It is not necessary to explain again the grounds on which the Convention were finally obliged to alter this arrangement. It will be convenient, however, to take up the several powers and functions of the executive, and to describe briefly the scope and purpose ultimately given to each of them. In the plan of government originally proposed by Governor Randolph, the division into the three departments of an executive, a legislative, and a judiciary, implied, for the first of these departments, according to the theory of all governments which are thus separated, power to carry into execution the existing laws. This government, however, was to succeed one that had regulated the affairs of the Union for several years, in which all the powers vested in the confederacy of the States were held and exercised by the Congress of their deputies; and among those powers was that of declaring war and making peace. This function is, moreover, embraced in the general powers of the executive department, in most governments in which there is a regular separation of that department from the legislative and the judiciary. But it became apparent at the very commencement of the process of forming the Constitution of the United States, that the question whether the executive should be intrusted with the power of war and peace would not only be made, but that the system would have to be so arranged as to make the government, in this particular, an exception to the general rule. This was partly owing to an unwillingness to intrust such a power to one person;--or even to a plurality of persons, if the executive should be so constituted. If to the general powers of executing the laws, and of appointing to office, there were to be added the power to make war and peace, and the whole were to be vested in a single magistrate, it was rightly said that the government would be in substance an elective monarchy. The power of the executive, over the external relations of the country at least, would be the same, in kind and in extent, as it is in constitutional monarchies, and the sole difference would be that the supreme magistrate would be elective. This was not intended, and was not admissible. Still another reason for making the government of the United States, in this feature, an exception to the general rule, was the necessity for giving to the States, in their corporate capacities, some control over the foreign relations of the country. Our further inquiries concerning this part of the powers and functions of the chief magistrate will only need to extend so far as to ascertain what is the "executive power," which the Constitution declares shall be "vested" in the President. In the resolutions, which at different stages had previously passed in the Convention, this had been described as a "power to carry into execution the national laws"; and this description was regarded as including such other powers, not legislative or judicial in their nature, as might from time to time be delegated to the President by Congress.[340] The committee of detail, in drafting the Constitution, employed the phrase "executive power" to describe what had thus been designated by the resolutions sent to them; and as the plan of government which they presented proposed to make the declaration of a state of war a legislative act, the prosecution of a war, when declared, was left to fall within the executive duties as part of the "executive power." In order, moreover, that the executive duties might be still more clearly defined, the committee provided that the President "shall take care that the laws be faithfully executed," and imposed upon him the same obligation by the force of his oath of office. The committee having been directed to provide for the end in view, it was considered that they were also to provide the means by which the end was to be obtained.[341] Accordingly, they made the President commander-in-chief of the army and navy, and of the militia of the States when called into the service of the United States. The President appears, therefore, to have been placed in the same position with reference to the means to be employed in the discharge of all his executive duties, when force may in his judgment be necessary. The declaration of a state of war is an enactment by the legislative branch of the government; the creation of laws is a function that belongs exclusively to the same department;--but when a law exists, or the state of war exists, it is for the President, by virtue of his executive office, and of his position as commander-in-chief, to employ the army and navy, and the militia actually called into the service of the United States, in the execution of the law, or the prosecution of hostilities, in such a manner as he may think proper.[342] Closely allied to the power of executing the laws is that of pardoning offences, and relieving against judicial sentences. This power was originally extended by the committee of detail to all offences against the United States, excepting cases of impeachment, in which they provided that the pardon of the President should not be pleaded in bar. This would have made the power precisely like that of the king of England; since, by the English law, although the king's pardon cannot be pleaded in bar of an impeachment, he may, after conviction, pardon the offender. But as it was intended in the Constitution of the United States to limit the judgment in an impeachment to a removal from office, and to subsequent disqualification for office, there would not be the same reason for extending to it the executive power of pardon that there is in England, where the judgment is not so limited. The Convention, therefore, took from the President all power of pardon in cases of impeachment, making them the sole exception to the power.[343] A strong effort was indeed made to establish another exception in cases of treason, upon the ground, chiefly, that the criminal might be the President's own instrument in an attempt to subvert the Constitution. But since all agreed that a power of pardon was as necessary in cases of treason as in all other offences, and as it must be given to the legislature, or to one branch of it, if not lodged with the executive, a very large majority of the States preferred to place it in the hands of the President, especially as he would be subject to impeachment for any participation in the guilt of the party accused.[344] The power to make treaties, which had been given to the Senate by the committee of detail, and which was afterwards transferred to the President, to be exercised with the advice and consent of two thirds of the senators present, was thus modified on account of the changes which the plan of government had undergone, and which have been previously explained. The power to declare war having been vested in the whole legislature, it was necessary to provide the mode in which a war was to be terminated. As the President was to be the organ of communication with other governments,[345] and as he would be the general guardian of the national interests, the negotiation of a treaty of peace, and of all other treaties, was necessarily confided to him. But as treaties would not only involve the general interests of the nation, but might touch the particular interests of individual States, and, whatever their effect, were to be part of the supreme law of the land, it was necessary to give to the senators, as the direct representatives of the States, a concurrent authority with the President over the relations to be affected by them. The rule of ratification suggested by the committee to whom this subject was last confided was, that a treaty might be sanctioned by two thirds of the senators present, but not by a smaller number. A question was made, however, and much considered, whether treaties of peace ought not to be subjected to a different rule. One suggestion was, that the Senate ought to have power to make treaties of peace without the concurrence of the President, on account of his possible interest in the continuance of a war from which he might derive power and importance.[346] But an objection, strenuously urged, was, that, if the power to make a treaty of peace were confided to the Senate alone, and a majority or two thirds of the whole Senate were to be required to make such a treaty, the difficulty of obtaining peace would be so great, that the legislature would be unwilling to make war on account of the fisheries, the navigation of the Mississippi, and other important objects of the Union.[347] On the other hand, it was said that a majority of the States might be a minority of the people of the United States, and that the representatives of a minority of the nation ought not to have power to decide the conditions of peace. The result of these various objections was a determination on the part of a large majority of the States not to make treaties of peace an exception to the rule, but to provide a uniform rule for the ratification of all treaties. The rule of the Confederation, which had required the assent of nine States in Congress to every treaty or alliance, had been found to work great inconvenience; as any rule must do, which should give to a minority of States power to control the foreign relations of the country. The rule established by the Constitution, while it gives to every State an opportunity to be present and to vote, requires no positive quorum of the Senate for the ratification of a treaty; it simply demands that the treaty shall receive the assent of two thirds of all the members who may be present. The theory of the Constitution undoubtedly is, that the President represents the people of the United States generally, and the senators represent their respective States; so that, by the concurrence which the rule thus requires, the necessity for a fixed quorum of the States is avoided, and the operations of this function of the government are greatly facilitated and simplified.[348] The adoption, also, of that part of the rule which provides that the Senate may either "advise or consent," enables that body so far to initiate a treaty, as to propose one for the consideration of the President;--although such is not the general practice. Having already described the changes which took from the Senate alone the appointment of the judges of the Supreme Court and ambassadors, it is only necessary in this connection to notice the manner in which the power of appointment to all offices received its final scope and limitations. The plan reported by the committee of detail had, as we have repeatedly seen, vested the appointment of ambassadors and judges of the Supreme Court in the Senate, and had given to the President the sole voice in the appointment of all other officers of the United States. The adjustment afterwards made gave the nomination of all officers to the President, but required the advice and consent of the Senate to complete an appointment. Two inconveniences were likely to be experienced under this arrangement. Many inferior offices might be created, which it would be unnecessary and inexpedient to fill by this process of nomination by the President and confirmation by the Senate; and vacancies might occur in all offices, which would require to be filled while the Senate was not in session. To obviate these inconveniences, the Congress were authorized to vest the appointment of such inferior officers as they might think proper in the President alone, in the courts of law, or in the heads of departments; and power was given to the President to fill up all vacancies that might happen during the recess of the Senate, by granting commissions which should expire at the end of their next session.[349] In order to restrain the President from practically creating offices by the power of appointment, his power was limited to "offices created by law," and to those specially enumerated in the Constitution.[350] In addition to these powers, the committee of detail had provided for certain direct relations, of a special nature, between the President and the Congress. One of these was to consist in giving to the Congress from time to time information of the state of the Union, and in recommending to their consideration such measures as he shall judge necessary and expedient. The other was embraced in the power to convene the two houses on extraordinary occasions; and, whenever there should be a disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper. The latter power is to be taken in connection with the clause which requires Congress to meet at least once in every year, and on the first Monday in December, unless a different day shall be appointed by law. Neither the two houses by agreement, nor the President in case of a disagreement, can fix on a time of adjournment beyond the day of the commencement of the next regular session. But subject to this restriction, the power of the President to determine the time at which the two houses shall reassemble, when they do not agree upon a time, extends to every session of Congress, whether it be regular or "extraordinary."[351] FOOTNOTES: [325] August 24. Elliot, V. 472, 473. [326] The Constitution was published in the Pennsylvania Journal, Sept. 19th. On the 27th, another Philadelphia paper suggested, or, as we should now say, "nominated" General Washington for the Presidency. [327] Delaware. Elliot, V. 519. [328] I allude, of course, to the case of King George III., which had not happened when our Constitution was framed. To ascertain the sanity of a private person is certainly often no less delicate and difficult, than to inquire into the sanity of a person in a high public position. But there is a legal process for determining the capacity of every person to discharge private duties or to exercise private rights. In the case of the President of the United States, there is no mode provided by the Constitution for ascertaining his inability to discharge his public functions, and no authority seems to have been given to Congress to provide for such an inquiry. Perhaps the authority could not have been given, with safety and propriety. [329] This clause was inserted, by unanimous consent, on the motion of Mr. King and Mr. Gerry, September 6. Elliot, V. 515. [330] See _post_, p. 621. [331] Congress, however, have not only provided that the President _pro tempore_ of the Senate and the Speaker of the House of Representatives shall successively act as President, in case of the removal, death, resignation, or inability both of the President and Vice-President, until the disability be removed or a President shall be elected, but also that, whenever the offices of President and Vice-President _shall both become vacant_, a new appointment of electors shall be ordered, and a new election made. The constitutional authority for this latter provision is at least doubtful. (Act of March 1, 1792.) I have discovered no evidence that the framers of the Constitution contemplated an intermediate election of President and Vice-President, excepting an amendment moved by Mr. Madison. The clause which enables Congress to declare what officer shall act as President, on the death, &c. of both the President and Vice-President, was introduced by Governor Randolph, and terminated thus: "And such officer shall act accordingly, until the time of electing a President shall arrive." Mr. Madison moved to substitute for this the words, "until such disability be removed, or a President shall be elected"; and he has recorded in his Minutes, that he remarked, on moving this amendment, that the phraseology of Governor Randolph "would prevent a supply of the vacancy by an intermediate election." This amendment was adopted. (Elliot, V. 520, 521.) But the difficulty in the way of construing the clause so as to give effect to this suggestion is, that the terms employed by Mr. Madison do not of themselves necessarily import an authority to Congress to order an intermediate election, any more than those used by Governor Randolph. Either of these expressions, when incorporated into the Constitution, would have to be construed with reference to the whole system prescribed by the Constitution for filling the executive branch of the government. Taking all the provisions together, it appears that the executive power is to be vested in a President, who is to hold his office for a term of four years; that Congress shall fix the day on which he is to be chosen by the electors; that, when so chosen, he is to hold the executive power for four years; that if he dies, or is disabled, within that term, and there is no Vice-President to succeed him, Congress shall declare by law what officer shall then _act as President_, that is, shall hold and exercise the executive power, and such officer is to _act accordingly_, until the disability be removed, or a President shall be elected. It would seem, therefore, that when the officer designated by Congress is required to _act as President_, the powers and duties of the office are devolved upon him for the residue of the term of four years, in a case of vacancy by death, removal, or resignation; for the terms "until a President shall be elected" certainly do not import any express authority to order a new election; and although there is a general authority in Congress to fix the day for the election of a President, it must be a President chosen for the term of four years. [332] Elliot, V. 462, 507, 521, 522. [333] He anticipated that it would be so regarded. Hamilton, who was in all his views, as unlike Franklin as any man could be, seconded the motion, out of respect for the mover. [334] Elliot, V. 380. [335] Connecticut, New Jersey, Delaware, and North Carolina voted against it. [336] Elliot, V. 446, 462. [337] Mason, Franklin, Wilson, Dickinson, and Madison. [338] Elliot, V. 525. [339] Those who are not familiar with the precise structure of the American government will probably be surprised to learn that what is in practice sometimes called the "Cabinet" has no constitutional existence as a directory body, or one that can decide anything. The theory of our government is, that what belongs to the executive power is to be exercised by the uncontrolled will of the President. Acting upon the clause of the Constitution which empowers the President to call for the opinions in writing of the heads of departments, Washington, the first President, commenced the practice of taking their opinions in separate consultation; and he also, upon important occasions, assembled them for oral discussion, in the form of a council. After having heard the reasons and opinions of each, he decided the course to be pursued. The second President, Mr. John Adams, followed substantially the same practice. The third President, Mr. Jefferson, adopted a somewhat different practice. When a question occurred of sufficient magnitude to require the opinions of all the heads of departments, he called them together, had the subject discussed, and a vote taken, in which he counted himself but as one. But he always seems to have considered that he had the _power_ to decide against the opinion of his cabinet. That he never, or rarely, exercised it, was owing partly to the unanimity in sentiment that prevailed in his cabinet, and to his desire to preserve that unanimity, and partly to his disinclination to the exercise of personal power. When there were differences of opinion, he aimed to produce a unanimous result by discussion, and almost always succeeded. But he admits that this practice made the executive, in fact, a directory. Jefferson's Works, V. 94, 568, 569. [340] Elliot, V. 141, 142. [341] Elliot, V. 343, 344. [342] The Constitution having vested in Congress power to provide for calling the militia into the service of the United States, to execute the laws, suppress insurrections, and repel invasions, the President cannot call out the militia unless authorized to do so by Congress. But with respect to the employment of the army and navy for any executive purpose, it may be doubted whether any authority from Congress is necessary; as it may also be doubted whether Congress can exercise any control over the President in the use of the land or naval forces, either in the execution of the laws, or in the discharge of any other executive duty. [343] Elliot, V. 480. [344] Ibid. 549. [345] It was to be one of the distinct functions of the President "to receive ambassadors and other public ministers." [346] Mr. Madison so thought. Elliot, V. 524. [347] Ibid. [348] The several votes taken upon different aspects of the rule for the ratification of treaties make the theory quite clearly what is stated in the text. See the proceedings, September 7, 8. Elliot, V. 524, 526. [349] This power embraces of course only those offices the appointment to which is vested in the President and Senate. [350] The Constitution (Art. II. § 2) seems to contemplate ambassadors, other public ministers and consuls, and judges of the Supreme Court, as officers to exist under the Constitution, whether provision is or is not made by law for their appointment and functions. It is made the imperative duty of the President to nominate, and with the consent of the Senate to appoint them. Hence it has been supposed that the President can appoint a foreign minister without waiting to have his particular office regulated or established by law; and as the President conducts the foreign intercourse of the country, he could prescribe the duties of such a minister. In like manner, with the consent of the Senate, the President could appoint a judge of the Supreme Court, and would be bound to do so, although no act of Congress existed providing for the organization and duties of the Court. But as the President cannot distribute the judicial power, the Court, when so appointed, would have only the functions conferred by the Constitution, namely, original jurisdiction in certain enumerated cases. [351] In the text of the Constitution, the President's power to adjourn the two houses of Congress in case of a disagreement follows immediately after his power to convene them on "extraordinary occasions"; and it has, therefore, been suggested that his power to adjourn them is confined to cases where they have been "extraordinarily" convened under the first power. But it is to be observed that the whole of the third section of Article II. contains an enumeration of separate powers of the President, recited _seriatim_. The power to _convene_ Congress is one power; and it extends only to "extraordinary" occasions, because the Constitution itself, or a law, convenes them at a fixed period, and thus makes the _ordinary_ occasions. But the power to adjourn the two houses to a particular time, in cases of disagreement as to the time, is a separate and general power, because the reason for which it was given at all applies equally to all sessions. That reason is, that there may be a peaceful termination of what would otherwise be an endless and dangerous controversy. Both Hamilton in the Federalist and Judge Story in his Commentaries have treated this as a separate and general power. (The Federalist, No. 77. Story on the Constitution, § 1563.) CHAPTER XIV. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--FORMATION OF THE JUDICIAL POWER. There now remains to be described the full conception and creation of the third department of the government, its judicial power. The distribution of the powers of government, when its subjects are to sustain no relation to any other sovereignty than that whose fundamental laws it is proposed to ordain, is a comparatively easy task. In such a government, when the theoretical division into the legislative, executive, and judicial functions is once adopted, the objects to which each is to be directed fall readily into their appropriate places. All that is necessary is, to see that these departments do not encroach upon the rights and duties of each other. There is, at least, no other power, claiming the obedience of the same people, whose just authority it is necessary to regard, and on whose proper domain no intrusion is to be permitted. How different is the task, when a government, either federal or national, is to be created, for a people inhabiting distinct political States, whose sovereign power is to remain for many purposes supreme over their respective subjects; when the individual is to be under rules of civil duty declared by different public organs; and when the object is to provide a judicial system through which this very difference of authority may be made to work out the ends of social order, harmony, and peace! This difficult undertaking was imposed upon the framers of the Constitution of the United States, and it was by far the most delicate and difficult of all their duties. It was comparatively easy to agree on the powers which the people of the States ought to confer on the general government, to define the separate functions of the legislature and the executive, and to lay down certain rules of public policy which should restrain the States in the exercise of their separate powers over their own citizens. But to construct a judicial power within the general government, and to clothe it with attributes which would enable it to secure the supremacy of the general Constitution and of all its provisions; to give it the exact authority that would maintain the dividing line between the powers of the nation and those of the State, and to give to it no more; and to add to these a faculty of dispensing justice to foreigners, to citizens of different States, and among the sovereign States themselves, with a more even hand and with a more assured certainty of the great ends of justice than any State power could furnish,--these were objects not readily or easily to be attained. Yet they were attained with wonderful success. The judicial power of the United States, considered with reference to its adaptation to the purposes of its creation, is one of the most admirable and felicitous structures that human governments have exhibited. The groundwork of its formation has been partly described in a previous chapter, where some of the principles are stated, which had been arrived at as being necessary to its great purposes. These principles related to the persons who were to exercise its functions, and to the jurisdiction or authority which they were to possess. With respect to the persons who were to exercise the judicial power, the result that had been reached when the first draft of the Constitution was to be prepared had fixed the tenure of good behavior for their office, and had placed their salaries, when once established, beyond the reach of any power of diminution by the legislature. It had also been determined that there should be one supreme tribunal, under the Constitution, and that the legislature should have power to establish inferior tribunals. But nothing more precise had been arrived at respecting jurisdiction, than the broad principles which declared that it should extend to cases arising under laws passed by the general legislature, and to such other questions as might touch the national peace and harmony. The committee of detail were to give effect to this declaration. Their scheme provided, under the first of these heads, that the jurisdiction should embrace cases arising under the laws of the United States; and as questions touching the national peace and harmony, they enumerated all cases affecting ambassadors, other public ministers, and consuls; impeachments of officers of the United States; all cases of admiralty and maritime jurisdiction; controversies between two or more States, excepting such as might regard territory or jurisdiction; controversies between a State and citizens of another State, between citizens of different States, and between a State or the citizens thereof and foreign states, citizens, or subjects. In cases of impeachment, cases affecting ambassadors, other public ministers, and consuls, and those in which a State should be party, they assigned the original jurisdiction to the Supreme Court. In all the other cases enumerated, the jurisdiction of the supreme tribunal was to be appellate only, with such exceptions and regulations as the legislature might make; and the original jurisdiction was left to be assigned by the legislature to such inferior tribunals as they might from time to time create. The trial of all criminal offences, except in cases of impeachment, was to be in the State where they had been committed, and was to be by jury. Controversies between States respecting jurisdiction or territory, and controversies concerning lands claimed under grants of different States, were to be tried by the Senate, and were consequently excluded from the judicial power. This plan, when compared with the full outline of the jurisdiction, as it was finally established, presented several remarkable defects. In the first place, it was silent with respect to the important distinction, familiar to the people of the United States, between proceedings in equity and proceedings at common law. This distinction, which extends not only to the forms of pleading, but to the principles of decision, the mode of trial, and the nature of the remedy, had been brought by the settlers of most of the Colonies from England, and had been perpetuated in their judicial institutions. It existed in most of the States, at the time of the formation of the national Constitution, and it was, in fact, a characteristic feature of the only system of judicature which the American people had known, excepting in their courts of admiralty. Although the institutions of the States differed in the degree in which they had adopted and followed it, the basis of their jurisprudence and forms of proceeding was the common law, as derived from its English sources and modified by their own customs or legislation, with more or less of that peculiar and more ample relief which is afforded by the jurisprudence and remedy known in the English system under the name of equity. Since the judicial power of the United States was to be exercised over a people whose judicial habits were thus fixed; since it must, to some extent, take cognizance of rights that would have to be adjudicated in accordance with the jurisprudence under which they had arisen; and since the individuals who would have a title to enter its tribunals might reasonably demand remedies as ample as a judicature of English origin could furnish, it was highly expedient that the Constitution should fully adopt the main features of that judicature. It is quite true, that a provision in the Constitution extending the judicial power to "all cases" affecting certain persons or certain rights, might be regarded by the legislature as a sufficient authority for the establishment of inferior courts with both a legal and an equitable jurisdiction, and might be considered to confer such a double jurisdiction on the supreme tribunal contemplated by the Constitution. But the text of the Constitution itself would be the source to which the people of the United States would look, when called upon to adopt it, for the benefits which they were to derive from it, and there would be no part of it which they would scrutinize more closely than that which was to establish the judicial power of the new government. If they found in it no imperative declaration making it the duty of Congress to provide for a jurisdiction in equity as well as at law, and no express adoption of such a jurisdiction for the supreme tribunal, they might well say that the character of the judicial power was left to the accidental choice of Congress, or to doubtful interpretation, instead of being expressly ordained in its full and essential proportions by the people. If a citizen of one State were to pursue a remedy in the courts of the Union against a citizen of another State, or if one State should have a judicial controversy with another, that would be a very imperfect system of judicature which should leave the form and extent of the remedy to be determined by the local law where the process was to be instituted, or which should confine the relief to the forms and proceedings of the common law. If the appellate jurisdiction of the supreme national tribunal were to be exercised over any class of controversies originating in the State courts, it was extremely important that the Constitution should expressly ascertain whether suits at law, or suits in equity, or both, were to be embraced within that appellate power. For these reasons, it became necessary for the Convention to supply this defect, by extending the judicial power, both in equity and at law, to the several cases embraced in it. Another defect in the report of the committee,--or what was regarded as a defect when the Constitution was ratified,--and one which the Convention did not supply, was in the omission of any express provision for trial by jury in civil cases. Such a provision was supplied by an amendment proposed by the first Congress that assembled under the Constitution, and adopted in 1791; but it was regarded by the framers of the Constitution as inexpedient, on account of the different construction of juries in the different States, and the diversity of their usages with respect to the cases in which trial by jury was used.[352] It is quite possible that, after the Constitution had declared that the jurisdiction of the national tribunals should extend to all cases "in law" affecting certain parties or rights, Congress would not have been at liberty to establish inferior tribunals for the trial of cases "in law" by any other method than according to the course of the common law, which requires that the fact in such cases shall be tried by a jury. But the objection which afterwards prevailed was connected, as we shall presently see, with what was regarded as a dangerous ambiguity in the clause of the Constitution which gave to the Supreme Court its appellate jurisdiction both as to law and fact. The plan of the committee of detail contemplated a supreme tribunal with original jurisdiction over a few of the cases within the judicial power, and appellate jurisdiction over all the other cases enumerated. Inquiry was made in the Convention, whether this appellate jurisdiction was intended to embrace fact as well as law, and to extend to cases of common law as well as to those of equity and admiralty jurisdiction. The answer was given, that such was the intention of the committee, and the jurisdiction of the federal court of appeals, under the Confederation, was referred to as having been so construed. The words "both as to law and fact" were thereupon introduced into the description of the appellate power, by unanimous consent.[353] Various explanations were subsequently given, when the Constitution came before the people, of the force and meaning of these words. The most probable and the most acute of these explanations was that made by Hamilton in the Federalist,[354] which limited the effect of the words, in reference to common law cases, to so much cognizance of the facts involved in a record as is implied in the application of the law to them by the appellate tribunal. But the truth was, the words were of very comprehensive import. While they were used in order to save to the Supreme Court power to revise the facts in equity and admiralty proceedings, they made no distinction, and imposed upon Congress no duty to make a distinction, between cases in equity and admiralty, and cases at common law; and although it might be true, that in some States the facts in all cases were tried by a jury, and that in some cases so tried there ought to be a power to revise the facts, yet it was not conceded that such a power ought to exist over the verdicts of juries in cases of common law jurisdiction. This explanation will serve to show the double purpose of the amendment made in 1791. The people of many of the States required an express guaranty that trial by jury should be preserved in suits at common law, and that the facts once tried by a jury should not be re-examined otherwise than according to the rules of the common law, which have established certain well-defined limits to the power of an appellate tribunal concerning the facts appearing to have been found by a jury.[355] There was still another omission in the report of the committee, of great magnitude. They had included in the judicial power cases arising under the laws of the United States, but they had not embraced cases arising under the Constitution and under treaties. At the same time, the Constitution was to embrace not only the powers of the general government, but also special restrictions upon the powers of the States; and not only the Constitution itself, but the laws made in pursuance of its provisions, and all treaties made under the authority of the United States, were to be the supreme law of the land. This supremacy could only be enforced by some prescribed action of some department of the general government. The idea of a legislative arrest, or _veto_, of State laws supposed to be in conflict with some provision of the national Constitution, or with a treaty or a law of the United States, had been abandoned. The conformity, moreover, of the laws of Congress to the provisions of the Constitution, could only be determined by the judicial power, when drawn into question in a judicial proceeding. The just and successful operation of the Constitution, therefore, required that, by some comprehensive provision, all judicial cases[356] arising under the Constitution, laws, or treaties of the United States--whether the question should grow out of the action of a State legislature, or the action of any department of the general government--should be brought within the cognizance of the national judiciary. This provision was added by the Convention. It completed the due proportions and efficacy of this branch of the judicial power. Trial by jury of all criminal offences (except in cases of impeachment) had been provided for by the committee of detail, and such trial was to be had in the State where the offence had been committed. The Convention, in order to secure the same right of a jury trial in cases where the offence had been committed out of any State, provided that the trial should be at such place or places as the Congress might by law have directed.[357] These additions, with one other which included within the judicial power all cases to which the United States might be party; the transfer of the trial of impeachments to the Senate; and the transfer to the judiciary of controversies between the States respecting jurisdiction or territory, and controversies respecting land titles claimed under the grants of different States,--were the principal changes and improvements made in the plan of the committee. The details of the arrangement will perhaps fail to interest the general reader. Yet I cannot but think that to understand the purpose and operation of this department of the national government would be a very desirable acquisition for any of my readers not already possessed of it; and having completed the description of the mode in which the judicial power was constructed, I shall conclude this part of the subject with a brief statement of its constitutional functions. One of the leading purposes for which this branch of the government was established, was to enable the Constitution to operate upon individuals, by securing their obedience to its commands, and by protecting them in the enjoyment of the rights and privileges which it confers. The government of the United States was eminently intended, among other purposes, to secure certain personal rights, and to exact certain personal duties. The Constitution confers on the general government a few special powers, but it confers them in order that the general government may accomplish for the people of each State the advantages and blessings for which the State governments are presumed to be, and have in fact proved to be, inadequate. It lays upon the governments and people of the States certain restrictions, and it lays them for the protection of the people against an exercise of State power deemed injurious to the general welfare. The government of the United States, therefore, is not only a government which seeks to protect the welfare and happiness of the people who live under it, but it is so constructed as to make its citizens directly and individually its subjects, exacting of them certain duties, and securing to them certain rights. It comes into this relation by reason of its supreme legislative power over certain interests, and the supreme authority of its restrictions upon the powers of the States; and it is enabled to make this relation effectual through its judicial department, which can take cognizance of every duty that the Constitution exacts and of every right that it confers, whenever they have assumed a shape in which judicial power can act upon them. Let us take, as illustrations of this function of the national judiciary, a single instance of the obedience required by the Constitution, and also one of a right which it protects. The Constitution empowers Congress to lay and collect duties; which, when they are laid and incurred, become a debt due from the individual owner of the property on which they are assessed to the general government. Payment, in disputed cases, might have been left to be enforced by executive power; but the Constitution has interposed the judicial department, as the more peaceful agent, which can at once adjudicate between the government and the citizen, and compel the payment of what is found due. Again, the Constitution provides that no State shall pass any law impairing the obligation of contracts. An individual supposing himself to be aggrieved by such a law might have been left to obtain such redress as the judicial or legislative authorities of the State might be disposed to give him; but the Constitution enables him finally to resort to the national judiciary, which has power to relieve him against the operation of the law upon his personal rights, while the law itself may be left upon the statute-book of the State. But while the judicial department of the general government was thus designed to enforce the duties and protect the rights of individuals, it is obvious that, in a system of government where such rights and duties are to be ascertained by the provisions of a fundamental law framed for the express purpose of defining the powers of the general government and of each of its departments, and establishing certain limits to the powers of the States, the mere act of determining the existence of such rights or duties may involve an adjudication upon the question, whether acts of legislative or executive power are in conformity with the requirements of the fundamental law. On the one hand, the judicial department is to see that the legislative authority of the Union does not exact of individuals duties which are not within its prescribed powers, and that no department of the general government encroaches upon the rights of any other, or upon the rights of the States; and, on the other hand, it has to see that the legislative authority of the States does not encroach upon the powers conferred upon the general government, or violate the rights which the Constitution secures to the citizen. All this may be, and constantly is, involved in judicial inquiries into the rights, powers, functions, and duties of private citizens or public officers; and therefore, in order that the judicial power should be able effectually to discharge its functions, it must possess authority, for the purposes of the adjudication, to declare even an act of legislation to be void, which conflicts with any provision of the Constitution. There were great differences of opinion in the Convention upon the expediency of giving to the judges, as expositors of the Constitution, power to declare a law to be void;[358] and undoubtedly such a power, if introduced into some governments, would be legislative in its nature, whether the persons who were to exercise it should be called judges, or be clothed with the functions of a council of revision. But under a limited and written constitution, such a power, when given in the form and exercised in the mode provided for in the Constitution of the United States, is strictly judicial. This is apparent from the question that is to be determined. It arises in a judicial controversy respecting some right asserted by or against an individual; and the matter to be determined is whether an act of legislation, supposed to govern the case as law, is itself in conformity to the supreme law of the Constitution. In a government constituted like ours, this question must be determined by some one of its departments. If it be left with the executive to decide finally what laws shall be executed, because they are consistent with the Constitution, and what laws shall be suspended, because they violate the Constitution, this practical inconvenience may arise, namely, that the decision is made upon the abstract question, before a case to be governed by the law has arisen. If the legislature were empowered to determine, finally, that the laws which they enact are constitutional, the same practical difficulty would exist; and the individual, whose rights or interests may be affected by a law, when put into operation, would have no opportunity to be heard upon what in our form of government is a purely juridical question, on which every citizen should be heard, if he desires it, before the law is enforced in his case. On the other hand, if the final and authoritative determination is postponed until the question arises in the course of a judicial controversy respecting some right or duty or power of an individual who is to be affected by the law, or who acts under it, the question itself is propounded not in the abstract, but in the concrete; not in reference to the bearing of the law upon all possible cases, but to its bearing upon the facts of a single case. In this aspect, the question is of necessity strictly judicial. To withhold from the citizen a right to be heard upon the question which in our jurisprudence is called the constitutionality of a law, when that law is supposed to govern his rights or prescribe his duties, would be as unjust as it would be to deprive him of the right to be heard upon the construction of the law, or upon any other legal question that arises in the cause. The citizen lives under the protection, and is subject to the requirements, of a written fundamental law. No department of the national, or of any State government, can lawfully act otherwise than according to the powers conferred or the restrictions imposed by that instrument. If the citizen believe himself to be aggrieved by some action of either government which he supposes to be in violation of the Constitution, and his complaint admit of judicial investigation, he must be heard upon that question, and it must be adjudicated, or there can be no administration of the laws worthy of the name of justice. It is interesting, therefore, to observe how this function of the judicial power gives to the operation of the government a comparatively high degree of simplicity, exactness, and directness, notwithstanding the refined and complex character of the system which its framers were obliged to establish. To judge of the merits of that system, in this particular, it is necessary to recur again to those alternative measures, to which I have frequently referred, and which lay directly in their path. One of these measures was that of a council of revision, to be charged with the duty of arresting improper laws. Besides the objection which has been already alluded to,--that the question of the conformity of a law to the Constitution would have thus been finally passed upon in the abstract,--such an institution, although theoretically confined to this inquiry, would have become practically a third legislative chamber; for it would inevitably have happened that considerations of expediency would also have found their way into the deliberations of a numerous body appointed to exercise a revisory power over all acts of legislation. There is no mode in which the question of constitutional power to enact a law can be determined, without the influence of considerations of policy or expediency, so effectually, as by confining the final determination to the special operation of the law upon the facts of an individual case. When the tribunal that is to decide this question is, by the very form in which it is required to act, limited to the bearing of the law upon some right or duty of an individual placed in judgment by a record, it is at once relieved of the responsibility, and in a great degree freed from the temptation, of considering the policy of the legislation. If, therefore, it be conceded--as every one will concede--that, whatever public body is specially instituted for the purpose of submitting the acts of the legislature to the test of the Constitution, it should neither possess the power, nor be exposed to the danger, of invading the legislative province, by acting upon motives of expediency, it must be allowed that the framers of the Constitution did wisely in rejecting the artificial, cumbrous, and hazardous project of a council of revision. The plan of such a council was, it is true, much favored, and indeed insisted upon, by some of the wisest men in the Convention. But it was urged at a time when the negative that was to be given to the President had not been settled, and when he had not been made sufficiently independent of the legislature to insure his unfettered employment of the negative that might be given to him. The purpose of the proposed council of revision was to strengthen his hands, by uniting the judges with him in the exercise of the "veto." This would have given to the judges a control both over the question of constitutional power and the question of legislative policy. As to the latter, it became unnecessary, as well as inexpedient, to unite the judges with the President, after he had been clothed with a suitable negative, and after his election had been taken from the legislature; and as to the former question, the final arrangement of the judicial power made it equally unnecessary to form the judges into a council of revision, since, if the President should fail to arrest an unconstitutional law, when presented for his approval, it could be tested in the ordinary course of judicial proceedings after it had gone into operation. But the conformity of laws of Congress to the Constitution was not all that was to be secured. Some prudent and effectual means were to be devised, by which the acts of the State governments could be subjected to the same test. The project of submitting the laws of the States to some department of the general government, while they were in the process of being enacted, or before they could have the form of law, was full of inconvenience and hazard. It could not have been attempted without an injury to State pride, that would have aroused an inextinguishable opposition to the national authority, even if the plan could once have been assented to. Yet there was no other alternative, unless the judicial power of the general government should be so constructed as to enable it to take the same cognizance of a constitutional question, when arising upon the law of a State, that it was to take of such a question when arising upon an act of Congress. The same necessity would exist in the one case, as in the other, for a power within the general government to give practical effect to that supremacy which the Constitution was to claim for itself, for treaties, and for the laws passed in pursuance of its provisions. All the restrictions which the Constitution was to lay upon the powers of the States would be nugatory, if the States themselves were to be the final judges of their meaning and operation. This transcendent power of interpretation and application, so logically necessary, and yet so certain to wound and irritate, if exercised by direct interference, could be wielded, without injurious results, through the agency of judicial forms, by a judicial investigation into personal rights, when affected by the action of a State government, just as it could be in reference to the acts of any department of the national government that could be made the subject of proceedings in a court of justice. The relation of the judicial power to the execution of treaties rests upon the same grounds of paramount necessity. It is not merely for the sake of uniformity of interpretation, that the national judiciary is authorized to decide finally all cases arising under treaties, although uniformity of interpretation is essential to the preservation of the public faith; but it is in order that the treaty shall be executed, by being placed beyond the hazards both of wrong construction and of interested opposition. The memorable instance of the Treaty of Peace, the absolute failure of which in point of execution, before the adoption of the Constitution, has been described in the first volume of this work, presents the great illustration, in our constitutional history, of the only mode in which the supremacy of treaty stipulations as law can be maintained in our system of government. "The United States in Congress assembled," under the Confederation, had the same exclusive authority to make treaties that is now possessed by the President and the Senate under the Constitution, and a treaty was in theory as obligatory then, upon the separate States and their inhabitants, as it is now. But it has been found to be an axiom of universal application in the art of government, that a supremacy which is merely theoretical is no real supremacy. If a stipulation made by the proper authority with a foreign government is to have the force of law, requiring the obedience of individuals and of all public authorities, its execution must be committed to a judiciary acting upon private rights without the hinderance or influence of adverse legislation. There is another branch of the judicial power which illustrates in a striking manner the object embraced in the preamble of the Constitution, where the people of the United States declare it to be their purpose "to establish justice." This is found in the provision for a special jurisdiction over the rights of persons bearing a certain character. Like almost everything else in the Constitution, this feature of the judicial power sprang from a necessity taught by previous and severe experience. Reasoning from the mere nature of such a government as that of the United States, it might seem that the judicatures of the separate States would be sufficient for the administration of justice in all cases in which private rights alone are concerned, and by which no power or interest of the general government, and no provision of the general Constitution, is likely to be affected. But we find in the judicial power of the United States a particular jurisdiction given on account of the mere civil characters of the parties to a controversy; and its existence there is to be accounted for upon other than speculative reasons. From the Declaration of Independence to the day of the ratification of the Constitution, the judicial tribunals of the States had been unable to administer justice to foreigners, to citizens of other States, to foreign governments and their representatives, and to the governments of their sister States, so as to command the confidence and satisfy the reasonable expectations of an enlightened judgment. Hence the necessity for opening the national courts to these various classes of parties, whose different positions may now be briefly considered. In a country of confederated States, each possessing a full power of legislation, it could not but happen--as it did constantly happen in this Union before the adoption of the Constitution--that the determination of controversies between citizens of the State where the adjudication was to be had, and citizens of another State, would be exposed to influences unfavorable to the ends of justice. In truth, one of the parties in such a controversy was virtually an alien, in the tribunal which he was obliged to enter; for although the Articles of Confederation undertook to secure to the free inhabitants of each State all the privileges and immunities of free citizens in the several States, yet it is obvious that the efficacy of such a provision must depend almost wholly upon the spirit of the tribunals, and upon their capacity to give effect to such a declaration of rights, against a course of State policy or the positive enactments of a State code. The chief difficulty of the condition of affairs existing before the Constitution lay not so much in the hazards of a violation of principle through local prejudice, or the superior force of local policy or legislation,--although these influences were always powerful,--as in the fact that, when these influences were likely to be most active, or were most feared, there was no tribunal to which resort could be had, and which was known to be beyond their operation and their reach. The articles of compact between the States had intended to remove from the citizens of the different States the disabilities of practical alienage under which they would have stood in the tribunals of each other. But with that mere declaration those articles stopped. If the litigant saw that the local law was likely to be administered to him as if he were a foreigner, or feared that the scales of justice would not be held with an impartial hand, he could go nowhere else for a decision. This was a great evil; for much of the value of every judicature depends upon the confidence it inspires. There were still other and perhaps stronger reasons for creating an independent jurisdiction, to be resorted to by foreigners, in controversies with citizens of the States. No clause in the Constitution was to make them equal in rights with citizens, and for the very reason of their alienage, therefore, it was necessary to give them access to tribunals organized under the authority of the general government, which would be responsible to foreign powers for the treatment that their subjects might receive in the United States. Ambassadors, too, and other foreign ministers, would not only be aliens, but would possess the character of representatives of their sovereigns; and consuls would be the public agents of their governments, although not bearing the diplomatic character. These functionaries were therefore permitted to resort to the judicial power of the United States; and for the purpose of more effectually protecting the national interests that might be involved in their personal or official relations, original jurisdiction was given to the Supreme Court in all cases affecting them. In addition to these, there were other controversies, which, as we have seen, were included within the judicial power of the United States, on account of the character of the parties; namely, those to which the United States might be a party; those to which a State of the Union might be a party, where the opposite party was another State of the Union, or a citizen of another State of the Union, or a foreign state or its citizens or subjects; and those between citizens of a State of the Union, and foreign states, citizens, or subjects. Finally, controversies between citizens of the same State claiming lands under grants of different States were placed under the same jurisdiction for similar reasons;--because the State tribunals could not be expected to afford that degree of impartiality which the circumstances of these several cases required. There remains only one other branch of the jurisdiction conferred by the Constitution on the tribunals of the United States which it is necessary to notice; namely, the admiralty and maritime jurisdiction. With respect to the criminal jurisdiction in admiralty, in cases of piracies and felonies committed on the high seas, and the prize jurisdiction, the Articles of Confederation had given to the Congress the exclusive power of appointing courts for the trial of the former, and for hearing and finally determining appeals in all cases of capture. Such appeals were taken from the State courts of admiralty,--tribunals which also possessed and exercised a civil jurisdiction corresponding to that of the admiralty in England, but in practice somewhat more extensive. When the Constitution was framed, it was perceived to be expedient, on account of the relation of maritime commerce to the intercourse of the people of the United States with foreign nations, or to the intercourse of the people of different States with each other, to give the whole civil as well as criminal jurisdiction in admiralty, and the entire prize jurisdiction, original as well as appellate, to the government of the Union. This was effected by the comprehensive provision, which gives the judicial power cognizance of "all cases of admiralty and maritime jurisdiction"; expressions which have often been, and are still likely to be, the subject of much forensic controversy with respect to the particular transactions, of a civil nature, intended to be embraced in the jurisdiction, but in reference to which there is nothing in the known proceedings of the Convention, other than what is to be inferred from the language selected, that affords any special evidence of the intention of the framers of the Constitution. FOOTNOTES: [352] Elliot, V. 550. [353] Elliot, V. 483. [354] No. 81. [355] See the seventh Amendment. [356] By "cases arising under the Constitution," &c. the framers of that instrument did not mean all cases in which any department of the government might have occasion to act under provisions of the Constitution, but all cases _of a judicial nature_; that is, cases which, having assumed the form of judicial proceedings between party and party, involve the construction or operation of the Constitution of the United States. Elliot, V. 483. [357] Elliot, V. 484. Constitution, Art. III. § 2, clause 3. [358] Elliot, V. 429. CHAPTER XV. REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--EFFECT OF RECORDS.--INTER-STATE PRIVILEGES.--FUGITIVES FROM JUSTICE AND FROM SERVICE. We now come to a class of provisions designed to place the people of the separate States in more intimate relations with each other, by removing, in some degree, the consequences that would otherwise flow from their distinct and independent jurisdictions. This was to be done by causing the rights and benefits resulting from the laws of each State to be, for some purposes, respected in every other State. In other words, by the establishment and effect of certain exceptions, the general rule which absolves an independent government from any obligation to regard the law, the authority, or the policy of another government was, for some purposes, to be obviated between the States of the American Union. To some extent, this had been attempted by the Articles of Confederation, by providing,--first, that the free inhabitants of each of the States (paupers, vagabonds, and fugitives from justice excepted) should be entitled to all privileges and immunities of free citizens in the several States; and that the people of each State should have free ingress and regress to and from any other State, and the same privileges of trade and commerce as its inhabitants;--secondly, that fugitives from justice charged with certain enumerated crimes, and escaping from one State into another, should be given up, on demand of the executive of the State from which they had escaped;--and thirdly, that full faith and credit should be given in each State to the records, acts, and judicial proceedings of the courts and magistrates of every other State. The Confederation, however, was a "firm league of friendship with each other," entered into by separate States, and the object of the provisions above cited was "the better to secure and perpetuate mutual friendship and intercourse among the people" of those States. One of the purposes of the Constitution, on the other hand, was "to form a more perfect Union"; and we are therefore to expect to find its framers enlarging and increasing the scope of these provisions, and giving to them greater precision and vigor. We shall see, also, that they made a very important addition to their number. The first thing that was done was to make the language of the Confederation respecting the privileges of general citizenship somewhat more precise. The Articles of Confederation had made "the free _inhabitants_ of each State," with certain exceptions, entitled to the privileges and immunities of "free _citizens_ in the several States."[359] It is probable that these two expressions were intended to be used in the same sense, and that by "free inhabitants" of a State was meant its "free citizens." The framers of the Constitution substituted the latter expression for the former, and thus designated more accurately the persons who are to enjoy the privileges and immunities of free citizens in other States besides their own. In the next place, while the Articles of Confederation declared that full faith should be given in each State to the acts, records, and judicial proceedings of every other State, they neither prescribed the mode in which the proof was to be made, nor the effect when it had been made. The committee of detail, in preparing the first draft of the Constitution, merely adopted the naked declaration of the articles. The Convention added to it the further provision, which enabled Congress to prescribe by general laws the manner in which such acts, records, and proceedings shall be proved, and the effect to be given to them when proved.[360] With respect to fugitives from justice, the Articles of Confederation had specified persons "charged with treason, felony, or other high misdemeanor in any State," as those who were to be given up by the States to each other. For the purpose of avoiding the ambiguity of this language, the provision was made to embrace all other crimes, as well as treason and felony.[361] Besides correcting and enlarging these provisions, the framers of the Constitution introduced into the system of the Union a special feature, which, in the relations _of the States to each other_, was then entirely novel, although not without precedent. I refer, of course, to the clause requiring the extradition of "fugitives from service," who have escaped from one State into another. In describing the compromises of the Constitution relating to slavery, I have not placed this provision among them, because it was not a part of the arrangement by which certain powers were conceded to the Union by one class of States, in consideration of certain concessions made by another class. It is a provision standing by itself, in respect to its origin, about which there is some popular misapprehension. Its history is as follows. In many of the discussions that had taken place, in preparing the outline of the government that was sent to the committee of detail, a good deal of jealousy had been felt and expressed by some of the Southern members, not only with regard to the relative weight of their States in the representative system, but also with respect to the security of their slave property. Slavery, although it had existed in all of the States, and although there still remained in all of them excepting Massachusetts some persons of the African race still held in that condition, was likely soon to disappear from the States of New Hampshire, Rhode Island, Connecticut, New York, and Pennsylvania, under changes that would be introduced by their constitutions or by statutory provision. In the whole of New England, therefore, and in nearly all of the Middle States excepting Maryland, if the principles of the common law and of the law of nations were to be applied to such cases, the relation of master and slave, existing under the law of another State, could not be recognized, and there could be no means of enforcing a return to the jurisdiction which gave to the master a right to the custody and services of the slave. At the same time, it was apparent that, in the five States of Maryland, Virginia, North Carolina, South Carolina, and Georgia, slavery would not only be likely to continue for a very long period of time, but that this form of labor constituted, and would be likely long to constitute, a necessary part of their social system. The theory on which the previous Union had been framed, and on which the new Union now intended to be consummated was expressly to be founded, was, that the domestic institutions of the States were exclusively matters of State jurisdiction. But if a relation between persons, existing by the law of a particular State, was to be broken up by an escape into another State, by reason of the fact that such a relation was unknown to or prohibited by the law of the place to which the party had fled, it was obvious that this theory of the Union would be of very little practical value to the States in which such a relation was to exist, and to be one of great importance. If the territory of every State in which this relation was not to be recognized, were to be made an asylum for fugitives, the right of the master to the services of the slave would be wholly insecure. It was in reference to this anticipated condition of things, that General Pinckney of South Carolina, at the time when the principles that were to be the basis of the Constitution were sent to the committee of detail,[362] gave notice, that, unless some provision should be inserted in their report to prevent this consequential emancipation, he should vote against the Constitution. Considering the position and influence of this gentleman, his declaration was equivalent to a notice that, without such a provision, the Constitution would not be accepted by the State which he represented. Still, the committee of detail omitted to make any such special provision in their report of a Constitution, and inserted only a general article that the _citizens_ of each State should be entitled to all the privileges and immunities of citizens in the several States.[363] General Pinckney was not satisfied with this, and renewed his demand for a provision "in favor of property in slaves."[364] But the article was adopted, South Carolina voting against it, and the vote of Georgia being divided. As soon, however, as the next article was taken up, which required the surrender of fugitives from justice escaping from one State into another, the South Carolina members moved to require "fugitive slaves and servants to be delivered up, like criminals."[365] Objection was made, that this would require the executive of the State to do it at the public expense,[366] and that there was no more propriety in the public seizing and surrendering a slave or a servant, than a horse.[367] The proposition was then withdrawn, in order that a particular provision might be framed, apart from the article requiring the surrender of fugitives from justice. That article was then adopted without opposition.[368] For a provision respecting fugitives from service, the movers had two remarkable precedents to which they could resort, and which had settled the correctness of the principle involved. Negro slavery, as well as other forms of service, had existed in the New England Colonies at a very early period. In 1643, the four Colonies of Massachusetts Bay, Plymouth, Connecticut, and New Haven had formed a confederation, in which, among other things, they had mutually stipulated with each other for the restoration of runaway "servants"; and there is indubitable evidence, that African slaves, as well as other persons in servitude, were included in this provision.[369] The other precedent was found in the Ordinance which had just been adopted by Congress for the settlement and government of the Territory northwest of the river Ohio; in which, when legislating for the perpetual exclusion of "slavery or involuntary servitude," a similar provision was made for the surrender of persons escaping into the Territory, "from whom labor or service is lawfully claimed in any one of the original States." In making this provision, the early colonists of New England, and the Congress of the Confederation, had acted upon a principle directly opposite to the objection that was raised in the formation of the Constitution of the United States. When it was said in the Convention, that the public authority ought no more to interfere and surrender a fugitive slave or servant than a horse, it was forgotten that, by the principles of the common law and the comity of nations, not only is property in movable things recognized by civilized states, but a remedy is afforded for restitution. But in the case of a fugitive person, from whom, by the law of the community from which he escapes, service is due to another, the right to the service is not recognized by the common law or the law of nations, and no means exist of enforcing the duties of the relation. If the case is to be met at all, therefore, it can only be by a special provision, in the nature of a treaty, which will so far admit the relation and the claim of service, as to make them the foundation of a right to restore the individual to the jurisdiction of that law which recognizes and enforces its duties. This was precisely what was done by the New England Confederation of 1643, and the Ordinance of 1787; and it was what was now proposed to be done by the Constitution of the United States. It was regarded at the time by the Southern States as absolutely necessary to secure to them their right of exclusive control over the question of emancipation,[370] and it was adopted in the Convention by unanimous consent,[371] for the express purpose of protecting a right that would otherwise have been without a satisfactory security. A proper understanding of the grounds of this somewhat peculiar provision is quite important. The publicists of Christendom are universally agreed, that independent nations are under no positive obligation to support the institutions, or to enforce the municipal laws, of each other. So far does this negative principle extend, that the general law of nations does not even require the extradition of fugitive criminals, who have escaped from one country into another. If compacts are made for this purpose, they rest entirely upon comity, and upon those considerations of public policy which make it expedient to expel from our own borders those who have violated the great laws on which the welfare of society depends; and such compacts are usually limited to those offences which imply great moral as well as civil guilt. The general rule is, that a nation is not obliged to surrender those who have taken sanctuary in its dominions. At the same time, every political state has an undoubted right to forbid the entry into its territories of any person whose presence may injure its welfare or thwart its policy. No foreigner, whether he comes as a fugitive escaping from the violated laws of another country, or comes for the innocent purposes of travel or residence, can demand a sanctuary as a matter of right. Whether he is to remain, or not to remain, depends entirely upon the discretion of the state to which he has resorted;--a discretion that is regulated by a general principle, among Christian nations, while at the same time the general principle is subject to such exceptions as the national interest may require to be established. Slavery, or involuntary servitude, being considered by public law as contrary to natural right, and being a relation that depends wholly on municipal law, falls entirely within the principle which relieves independent nations of the obligation to support or to enforce each other's laws. It has not, therefore, been customary for states which have no peculiar connection, to surrender fugitives from that relation, or to do anything to enforce its duties. But such fugitives stand upon a precise equality with all other strangers who seek to enter a society of which they are not members. If the welfare of the society demands their exclusion, or if it may be promoted by a stipulation that they shall be taken back to the place where their service is lawfully due, the right to exclude or to surrender them is perfect; for every political society has the moral power, and is under a moral obligation, to provide for its own welfare. If such stipulations have not usually been made among independent nations, their absence may prove that the public interest has not required them, but it does not prove the want of a right to make them. Each of the American States, when its people adopted the national Constitution, possessed the right that belongs to every political society, of determining what persons should be permitted to enter its territories. Each of them had a complete right to judge for itself how far it would go, in recognizing or aiding the laws or institutions of the other States. It is obvious, moreover, that States which are in general independent of each other, but which propose to enter into national relations with each other under a common government, for certain great political and social ends, may have reasons for giving a particular effect to each other's laws, or for sustaining each other's institutions, which do not operate with societies not standing in such a relation; and that these reasons may be of a character so grave and important, as to amount to a moral obligation. Thus independent and disconnected nations are ordinarily under no obligation to support or guarantee each other's forms of government. But the American States, in entering into the new Union under their national Constitution, found that a republican form of government in every State was a thing so essential to the welfare and safety of all of them, as to make it both a necessity and a duty for all to guarantee that form of government to each other. In the same way, although nations in general do not recognize the relation of master and servant prevailing by the law of another country, so far as to stipulate for the surrender of persons escaping from that relation, the American States found themselves surrounded by circumstances so imperative, as to make it both a necessity and a duty to make with each other that stipulation. These circumstances I shall now briefly state. I have already referred to all the known proceedings in the Convention on this subject, and have stated to what extent those proceedings justify the opinion that the Constitution could not have been formed without this provision.[372] But there is higher evidence both of its necessity and its propriety than anything that may have been said by individuals or delegations. The States were about to establish a more perfect Union, under a peculiar form of national government, the effect of which would necessarily bring them into closer relations with each other, multiplying greatly the means and opportunities of intercourse, and enabling them to act on each other's internal condition with an influence that would be nearly irresistible, unless it should be arrested by constitutional barriers. Among the features of their internal condition, the relation of master and servant, or the local institution of servitude, was one that must either be placed under national cognizance, or be left exclusively to the local authority of each State. There was no middle or debatable ground, which it could with safety be suffered to occupy. The African race, although scattered throughout all of the States, was placed in very different circumstances in different parts of the country. There could have been no national legislation with respect to that race, concerning the time or mode of emancipation, the tenure of the master's right, or the treatment of the slave, that would not have been forced to adapt itself to an almost endless variety of circumstances in different localities. At the same time, it was one of the fundamental principles on which the whole Constitution was proposed to be founded, that, where the national authority could not furnish a uniform rule, its legislative power was not to extend. Whatever required one rule in Massachusetts and another rule in Virginia, for the exigencies of society, was necessarily left to the separate authority of the respective States. It was upon matters on which the States could not legislate alike, but on which the national power could furnish a safe and advantageous uniform rule, that the want of a national Constitution was felt, and for these alone was its legislative power to be created. We may suppose, then, that the framers of the Constitution had sought to bring the relation of master and servant, or the condition of the African race, within the States, under the cognizance of national legislation; and we may imagine, for the purposes of the argument, that consent had been given by every one of the States. The power must have remained dormant, or its exercise would have been positively mischievous. It never could have been exercised beneficially for either of the two races; not only because it could not have followed any uniform system, but because the confusions and jealousies which must have attended any attempt to legislate specially, must either have totally obstructed the power, or must have made its exercise absolutely pernicious. These consequences, which the least reflection will reveal, may serve to show us, far better than any declarations or debates, why the framers of the Constitution studiously avoided acquiring any power over the institution of slavery in the States;--why the representatives of one class of States could not have consented to give, and the representatives of another class could never have desired to obtain, such a power for the national Constitution. But it may be asked,--and the question is often prompted by a feeling of pity towards individual cases of hardship,--Why did not the framers of the Constitution content themselves with the negative position, which leaves the institution of slavery to the uncontrolled direction of every State in which it is found? Why did they establish a rule that obtains nowhere else among distinct communities, and require that the fugitive from this relation of a purely local character, who has committed no crime, and has fled only to acquire a natural liberty, shall be restored to the dominion of the local law which declares him to be a slave? Why should the States which had abolished, or were about to abolish, this relation, consent to the use of force within their own territories, for the purpose of upholding the relation in other States? These questions are pertinent to the estimate which mankind may be called upon to form concerning the provisions of our national Constitution, and they admit of an answer. The most material answer to them is, that, without some stipulation on the part of the States where slavery was not to exist that their free territory should not be made the means of a practical interference with the relation in other States, the mere concession of the abstract principle that slavery was to be exclusively under the control of State authority would have been of no real value to any one of the States, or to any of their inhabitants, of either race. But some active security for this principle was of the utmost importance, not merely as a concession which would secure the formation of the new Union, but as a means to secure the beneficent working of the Constitution after its acceptance had been obtained. It was as important to the black race as it was to the whites; for it is not to be doubted, that the continuance of a division into separate States, and the firm maintenance of an exclusive local authority over the domestic relations of their inhabitants, have been the cause, under the Divine Providence, of a far higher civilization, and consequently of a far better condition of the subjected race, than could have been attained in the same localities if the States had been in all respects resolved into one consolidated republic. Let the reader spread before him the map of the thirteen republics of 1787, and mark upon each of them the relative numbers of their white and colored inhabitants, and then efface the boundaries of the States. Let him imagine all legislative power, all the superintending care of government, withdrawn into a central authority, whose seat must have been somewhere near the centre of the free white population. Let him observe how that population must have tended away from the regions where the labor of slaves would be most productive, and how dense the slave populations must there have become. All that now constitutes the pride of men in their separate State, that induces to residence and makes it the home of their affections, would have passed away; and at the same time, vast tracts of wonderful fertility must have retained the African, and with him scarcely any white man but the speculator, the overseer, and a solitary tradesman. Into such regions as those, the national authority could not have penetrated with success. Legislation would have wanted the necessary machinery, by which to reach and elevate the condition of society at such remote extremities from the centre. A more than Russian despotism would not have sufficed to carry the authority of government and the restraints of law into communities so depopulated of freemen, so filled with slaves, and so far removed from the seat of power. But now let the same map be again unfolded, with all the lines that mark the distinct sovereignties of the States. In each of them there is a complete and efficient government. Each has its history, unbroken since the first settlers laid the foundations of a State. In each there is a centre of civilization, a source of law, and the public conscience of an organized self-governing community. Each of them can act, and does act, upon the condition of the African race within its own limits, according to its own judgment of the exigencies of the case; and it is a fact capable of easy verification, that, in the progress of three quarters of a century, this local power has effected for that race what no national legislature could have accomplished. For, if we look back to the period when the Constitution of the United States was adopted, and suppose it to have acquired the means of acting on the institution of slavery within the States, we shall see that, if the national authority had approached the subject of emancipation at all, it must have applied the same rule in South Carolina as in Pennsylvania, and at the same time. But the emancipation of the half a million of slaves held in widely different proportions in the various subdivisions of the country, or of their still more numerous descendants, by a single and uniform measure comprehending them all, would at no time since the Constitution was adopted have been a merciful or defensible act. Nothing could have remained, therefore, for the national power to do, but to attempt such legislation as might tend to regulate and ameliorate the condition of servitude; and such legislation must have been wholly ineffectual, and would soon have been abandoned, or been superseded by schemes that must have increased the evils which they aimed to remove. In thus placing a high value upon the exclusive power of the separate States over this the most delicate and embarrassing of all the social problems involved in their destiny, I have not forgotten that, since the adoption of the national Constitution, nine slave States have been added to the Union, and that the slaves have increased to more than three millions. This increase, however, has not been in a greater _ratio_ than that of the white population, nor greater than it must have been under any form of polity which the thirteen original States might have seen fit to adopt in the year 1787, unless that polity had had a direct tendency to restrain the growth of the country, and to prevent the settlement of new regions.[373] As it is, it is to be remembered that, wherever the institution of slavery has gone, there has gone with it the system of State government, the power and organization of a distinct community, and consequently a better civilization than could have been the lot of distant provinces of a great empire, or distant territories of a consolidated republic. These considerations will account for that apparent inconsistency which has sometimes attracted the attention of those who view the institutions of the United States from a distance, and without a sufficient knowledge of the circumstances in which they originated. It has been occasionally made a matter of reproach, that a people who fought for political and personal freedom, who proclaimed in their most solemn papers the natural rights of man, and who proceeded to form a constitution of government that would best secure the blessings of liberty to themselves and their posterity, should have left in their borders certain men from whom those rights and blessings are withheld. But in truth the condition of the African slaves was neither forgotten nor disregarded by the generation who established the Constitution of the United States; and it was dealt with in the best and the only mode consistent with the facts and with their welfare. The Constitution of the United States does not purport to secure the blessings of liberty to all men within the limits of the Union, but to the people who established it, and their posterity. It could not have done more; for the slaveholding States could not, and ought not, to have entered a Union which would have conferred freedom upon men incapable of receiving it, or which would have required those States to surrender to a central and insufficient power that trust of custody and care which, in the providence of God, had been cast upon their more effectual local authority. The reproach to which they would have been justly liable would have been that which would have followed a desertion of the duty they owed to those who could not have cared for themselves, and whose fate would have been made infinitely worse by a consolidation of all government into a single community, or by an attempt to extend the principles of liberty to all men. The case is reduced, therefore, to the single question, whether the people of the United States should have foregone the blessings of a free republican government, because they were obliged by circumstances to limit the application of the maxims of liberty on which it rests. On this question, they may challenge the judgment of the world. FOOTNOTES: [359] See and compare Art. IV. of the Confederation and Art. IV. § 2 of the Constitution. [360] So far as the proceedings in the Convention are to be regarded as a guide to construction, it appears clearly that the clause which empowers Congress to "prescribe the manner in which such acts, records, and proceedings shall be proved, _and the effect thereof_," was intended to give a power to declare the effect of the acts, records, and judicial proceedings of any State, when offered in evidence in another State, as well as to prescribe the mode of proving them. See Elliot, V. 487, 488, 503, 504. See also a learned discussion on this clause in Story's Commentaries, §§ 1302-1313. [361] Elliot, V. 487. [362] July 23d. Elliot, V. 357. [363] Art. XIV. of the report of the committee of detail. [364] These are the words of Mr. Madison's Minutes. Elliot, V. 487. This was on the 26th of August. [365] Madison, _ut supra_. The motion was made by Butler and Pinckney, according to Mr. Madison. [366] By Wilson. [367] By Sherman. [368] Madison, _ut supra_. August 28. [369] The reader who will consult a paper in the fourth volume of the Collections of the Massachusetts Historical Society (p. 194), written by Dr. Belknap, in 1795, will find that slavery, in the sense in which the term is now commonly understood, existed in Massachusetts Bay as early as 1630. The proof of it consists,--1. In the provisions of the colonial laws and ordinances, which recognize and regulate a relation very different from that of service for hire. On this subject, the early colonists of Massachusetts held and practised the law of Moses. They regarded it as lawful to _buy_ and _sell_ "slaves taken in lawful war," or reduced to servitude by judicial sentence, and placed them under the same privileges as those given by the Mosaic law. But they punished man-_stealing_ capitally, re-enacting expressly the 16th verse of the 21st chapter of Exodus; and when there were any negroes in their jurisdiction who had been stolen, or "fraudulently" acquired in Africa, they endeavored to send them back again. 2. In the actual presence of negro slaves, brought from Africa, who had been "lawfully" acquired, that is, by fair purchase from those who held them as prisoners of war. These existed to some extent in the Colony in 1638, and were numerous in 1673; and of course were included in all the legislation of that period respecting service, being sometimes described as "slaves," and sometimes by the more general and comprehensive term of "servants."--Slavery by judicial sentence was inflicted for no higher crimes than theft and burglary. Thus at a Quarter Court holden at Boston the 4th day of the 10th month, 1638, "John Hazlewood being found guilty of severall thefts and breaking into severall houses, was censured to be severely whipped and delivered up a _slave_ to whom the Court shall appoint." (Shurtleff's Edition of Records of Massachusetts, I. 246.) Many of the Indians taken prisoners in King Philip's war, who had formerly submitted to the Colonial government and had been called "Praying Indians" from their supposed conversion to Christianity, were adjudged guilty of "rebellion," and were sold into slavery in foreign countries. Dr. Belknap says that some of them found their way back again, and took a severe revenge on the English in a subsequent war. (Hist. Soc. Coll. _ut supra_.) [370] Mr. Madison stated in the Convention of Virginia in which the Constitution was ratified, that "this clause was expressly inserted, to enable owners of slaves to reclaim them." (Elliot's Debates, III. 453.) [371] August 29. Elliot, V. 492. [372] I am not aware of any more positive evidence than that above given in the text, that this clause of the Constitution was expressly made in the Convention a condition of assent by any of the States. [373] In 1790, the slaves numbered 697,897, and the whites 3,172,464. In 1850, the slaves had increased to 3,204,313, and the whites to 19,533,068. CHAPTER XVI. REPORT OF THE COMMITTEE OF DETAIL, CONCLUDED.--GUARANTY OF REPUBLICAN GOVERNMENT AND INTERNAL TRANQUILLITY.--OATH TO SUPPORT THE CONSTITUTION.--MODE OF AMENDMENT.--RATIFICATION AND ESTABLISHMENT OF THE CONSTITUTION.--SIGNING BY THE MEMBERS OF THE CONVENTION. The power and duty of the United States to guarantee a republican form of government to each State, and to protect each State against invasion and domestic violence, had been declared by a resolution, the general purpose of which has been already described. It should be said here, however, that the objects of such a provision were two; first, to prevent the establishment in any State of any form of government not essentially republican in its character, whether by the action of a minority or of a majority of the inhabitants; second, to protect the State against invasion from without, and against every form of domestic violence.[374] When the committee of detail came to give effect to the resolution, they prepared an article, which made it the duty of the United States to guarantee to each State a republican form of government, and to protect each State against invasion, without any application from its authorities; and to protect the State against domestic violence, on the application of its legislature.[375] No change was made by the Convention in the substance of this article, excepting to provide that the application, in a case of domestic violence, may be made by the executive of the State, when the legislature cannot be convened.[376] It now remains for me to state what appears to have been the meaning of the framers of the Constitution, embraced in these provisions. It is apparent, then, from all the proceedings and discussions on this subject, that, by guaranteeing a republican form of government, it was not intended to maintain the existing constitutions of the States against all changes. This would have been to exercise a control over the sovereignty of the people of a State, inconsistent with the nature and purposes of the Union. The people must be left entirely free to change their fundamental law, at their own pleasure, subject only to the condition, that they continue the republican form of government. The question arises then, What is that form? Does it imply the existence of some organic law, establishing the departments of a government, and prescribing their powers, or does it admit of a form of the body politic under which the public will may be declared from time to time, either with or without the agency of any established organs or representatives? Is it competent to a State to abolish altogether that body of its fundamental law which we call its Constitution, and to proceed as a mere democracy, enacting, expounding, and executing laws by the direct action of the people, and without the intervention of any representative system constituting what is known as a government? The Constitution of the United States assumes, in so many of its provisions, that the States will possess organized governments, in which legislative, executive, and judicial departments will be known and established, that it must be taken for granted that the existence of such agents of the public will is a necessary feature of a State government, within the meaning of this clause. No State could participate in the government of the Union, without at least two of these agents, namely, a legislature and an executive; for the people of a State, acting in their primary capacity, could not appoint a Senator of the United States; nor fill a vacancy in the office of Senator; nor appoint Electors of the President of the United States, without the previous designation by a legislature of the mode in which such Electors were to be chosen; nor apply to the government of the United States to protect them against "domestic violence," through any other agent than the legislature or the executive of the State. It is manifest, therefore, that each State must have a government, containing at least these distinct departments; and whether this government is organized periodically, under mere laws perpetually re-enacted, and subject to perpetual changes without reference to forms, or under standing and fundamental laws, changeable only in a prescribed form, and being so far what is called a constitution, it is apparent that there must be a "form of government" possessed of these distinct agencies. There must be, moreover, not only this "form of government," but it must be a "republican" form; and in order to determine the sense in which this term qualifies the nature of the government in other respects besides those already referred to, it is necessary to take into view the previous history of American political institutions, because that history shows what is meant, in the American sense, by a "republican" government. History, then, establishes the fact, that, in the American system of government, the people are regarded as the sole original source of all political authority; that all legitimate government must rest upon their will. But it also teaches that the will of the people is to be exercised through representative forms. For even in the exercise of original suffrage, which has never been universal in any of the States of the Union, and in the bestowal of power upon particular organs, those who are regarded as competent to express the will of society are, in that expression, deemed to represent all its members; and those who, in the distribution of political functions, exercise the sovereignty of the people, so far as it has been thus imparted to them, exercise a representative function, to which they are appointed, directly or indirectly, by popular suffrage, that may be more or less restricted, according to the public will. It may be said, therefore, with strictness, that in the American system a republican government is one based on the right of the people to govern themselves, but requiring that right to be exercised through public organs of a representative character; and these organs constitute the government. How much or how little power shall be imparted to this government, what restrictions shall be imposed upon it, and what the precise functions of its several departments shall be, with respect to the internal concerns of the State, the Constitution of the United States leaves untouched, except in a few particulars. It merely declares that a government having the essential characteristics of an American republican system shall be guaranteed by the United States; that is to say, that no other shall be permitted to be established. The provision by which the State is protected against domestic violence was necessary to complete the republican character of the system intended to be upheld. The Constitution of the United States assumes that the governments of the States, existing when it goes into operation, are rightfully in the exercise of the authority of the State, and will so continue until they are changed. But it means that no change shall be made by force, by public commotion, or by setting aside the authority of the existing government. It recognizes the right of that government to be protected against domestic violence; in which expression is to be included every species of force directed against that government, excepting the will of the people operating to change it through the forms of constitutional action. The next topic on which the Convention was required to act was the question whether the Constitution should be made capable of amendment, and in what mode amendments were to be proposed and adopted. The Confederation, from its nature as a league between States otherwise independent of each other, was made incapable of alteration excepting by the unanimous consent of the States. It affords a striking illustration of the different character of the government established by the Constitution, that a mode was devised by which changes in the organic law could become obligatory upon all the States, by the action of a less number than the whole. The frame of government which the members of the Convention were endeavoring to establish, if once adopted, was to endure, as a continuing power, indefinitely; and that it might, as far as possible, be placed beyond the danger of destruction, it was necessary to make it subject to such peaceful changes as experience might render proper, and which, by being made capable of introduction by the organic law itself, would preserve the identity of the government. The existence and operation of a prescribed method of changing particular features of a government mark the line between amendment and revolution, and render a resort to the latter, for the purpose of melioration or reform, save in extreme cases of oppression, unnecessary. According to our American theory of government, revolution and amendment both rest upon the doctrine, that the people are the source of all political power, and each of them is the exercise of an ultimate right. But this right is exercised, in the process of amendment, in a prescribed form, which preserves the continuity of the existing government, and changes only such of its fundamental rules as require revision, without the destruction of any public or private rights that may have become vested under the former rule. Revolution, on the contrary, proceeds without form, is the violent disruption of the obligations resting on the authority of the former government, and terminates its existence often, without saving any of the rights which may have grown up under it. The question, therefore, whether the Constitution should be made capable of amendment, was identical with the question whether some mode of amending it should be prescribed in the instrument itself, since, without an ascertained and limited method of proceeding, all change becomes, in effect, revolution; and this was accordingly, in substance, the same as the question whether revolution should be the only method by which the American people could ever modify their system of government, when in the progress of time changes might become indispensable. It was originally proposed in the Convention, that provision should be made for amending the Constitution, without requiring the assent of the national legislature.[377] But this was justly regarded as a very important question, and the Convention came to no other decision, when the committee of detail were instructed, than to declare that provision ought to be made for amending the Constitution whenever it should seem necessary.[378] The mode selected by the committee, and embraced in the first draft of the instrument, was to have a convention called by the Congress, when applied for by the legislatures of two thirds of the States; but they did not declare whether the legislatures were to propose amendments and the convention was to adopt them, or whether the convention was both to propose and adopt them, or only to propose them for adoption by some other body or bodies not specified. There lay, therefore, at the basis of this whole subject, the very grave question whether there should ever be another national convention, to act in any manner upon or in reference to the national Constitution, after its adoption, and if so, what its functions and authority were to be. There would follow, also, the further question, whether this should be the sole method in which the Constitution should be made capable of amendment. Several reasons concurred to render it highly inexpedient to make a resort to a convention the sole method of reaching amendments, and we can now see that the decision that was made on this subject was a wise one. It was a rare combination of circumstances that gave to the first national Convention its success. The war of the Revolution, and the exigencies which it caused, had produced a class of men, possessing an influence, as well as qualifications for the duty assigned to them, that would not be likely to be again witnessed. Of these men, Washington was the head; and no second Washington could be looked for. The peculiar crisis, too, occasioned by the total failure of the Confederation, notwithstanding the apparent fitness and actual necessity of that government at the time of its formation, could never occur again. There were, moreover, but thirteen States in the confederacy, nearly all of which dated their settlement and their existence as political communities from about the same period, and all had passed through the same revolutionary history. But the number of the States was evidently destined to be greatly increased, and the new members of the Union would also be likely to be very different in character from the old States. It was not probable, therefore, that the time would ever arrive when the people of the United States would feel that another national convention, for the purpose of acting on the national Constitution, would be safe or practicable. Still, it would not have been proper to have excluded the possibility of a resort to this method of amendment; since the national legislature might itself be interested to perpetuate abuses springing from defects in the Constitution, and to incur the hazards attending a convention might become a far less evil than the continuance of such abuses, or the failure to make the necessary reforms. But it was indispensable that the precise functions and authority of such a convention should be defined, lest its action might result in revolution. The method of amendment proposed by the committee of detail did not enable the Congress to call a convention on their own motion, and did not prescribe the action of such a body, or provide any mode in which the amendments proposed by it should be adopted. Hamilton and Madison both opposed this plan;--the former, because it was inadequate, and because he considered it desirable that a much easier method should be devised for remedying the defects that would become apparent in the new system; the latter, on account of the vagueness of the plan itself. Accordingly, Mr. Madison brought forward, as a substitute, a method of proceeding, which, with some modifications, became what is now the fifth article of the Constitution; namely, that the Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments; or, on the application of the legislatures of two thirds of the States, shall call a convention for proposing amendments. In either case, the amendments proposed are to become valid as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths of the States, as the one or the other mode of ratification may be proposed by the Congress.[379] But when this provision had been agreed upon, the grave question arose, whether the power of amendment was to be subjected to any limitations. There were two objects, in respect to which, as we have more than once had occasion to see, different classes of the States felt great jealousy. One of them had been covered by the stipulations that the States should not be prohibited before the year 1808 from admitting further importations of slaves, and that no capitation or other direct tax should be laid unless in proportion to the census or enumeration of the inhabitants of the States, in which three fifths only of the slaves were included.[380] The other was the equality of representation in the Senate, so long and at length so successfully contended for by the smaller States.[381] At the instance of Mr. Rutledge of South Carolina, a proviso was added, which forbade any amendment before the year 1808 affecting in any manner the clauses relating to the slave-trade and the capitation or other direct taxes.[382] This proviso having now become inoperative, those clauses are, like others, subject to amendment. At the instance of Mr. Sherman of Connecticut, a restriction that is of perpetual force was placed upon the power of amendment, which prevents each State from being deprived of its equality of representation in the Senate, without its consent.[383] The oath or affirmation to support the Constitution was provided for by the committee of detail, in accordance with the resolution directing that it should be taken by the members of both houses of Congress and of the State legislatures, and by all executive and judicial officers of the United States and of the several States; and for the purpose of for ever preventing any connection between church and state, and any scrutiny into men's religious opinions, the Convention unanimously added the clause, that "no religious test shall ever be required as a qualification to any office or public trust under the United States."[384] We are next to ascertain in what mode the Constitution, which had thus been framed, was to provide for its own establishment and authority. There is a great difference between the importance of this question, as it presented itself to the framers of the Constitution, and its importance to this or any succeeding generation. To us it is chiefly interesting because it displays the basis of a government which has been established for seventy years over the thirteen original States of the confederacy, and is now acknowledged by more than twice the number of those original States. To those who made the Constitution, and to the people who were to vote upon it and to put it into operation, the mode in which it was to become the organic law of the Union was a topic of serious import and delicacy. It involved the questions, of what course would be politic with reference to the people; of what would be practicable; of the initiation of the new government without force; of its establishment on a firm, just, and legitimate authority; and of its right to supersede the Confederation, without a breach of faith toward the members of that body by whose inhabitants the new system might be rejected. The Convention had already decided that the Constitution must be ratified by the people of the States; but a difficulty had all along existed, in the opinions held by some of the members respecting the compact then subsisting between the States, which they regarded as indissoluble but by the consent of all the parties to it. The resolution, which the committee of detail were instructed to carry out, had declared that the new plan of government should first be submitted to the approbation of the existing Congress, and then to assemblies of representatives to be recommended by the State legislatures and to be expressly chosen by the people to consider and decide upon it. But this direction embraced no decision of the question, whether the ratification by the people of a less number than all the States should be sufficient for putting the government into operation. If the people of a smaller number than the whole of the States could establish this form of government, what was to be its future relation to the States which might reject or refuse to consider it? Could any number of the States thus withdraw themselves from the Confederation, and establish for themselves a new general government, and could that government have any authority over the rest? Various and widely opposite theories were maintained. One opinion was, that all the States must accept the Constitution, or it would be a nullity;--another, that a majority of the States might establish it, and so bind the minority, upon the principle that the Union was a society subject to the control of the greater part of its members;--still another, that the States which might ratify it would bind themselves, but no one else. The truth with regard to these questions, which perplexed the minds of men in that assembly somewhat in proportion to their acuteness and their proneness to metaphysical speculations, was in reality not very far off. The Articles of Confederation had certainly declared that no alteration should be made in any of them, unless first proposed by the Congress, and afterwards unanimously agreed to by the State legislatures. But in two very important particulars the Convention had already passed beyond what could be deemed an alteration of those Articles. They had prepared and were about to propose a system of government that would not merely alter, but would abolish and supersede, the Confederation; and they had determined to obtain, what they regarded as a legitimate authority for this purpose, the consent of the people of the States, by whose will the State governments existed, from whom those governments derived their authority to enter into the compact of the Confederation, and whose sovereign right to ameliorate their own political condition could not be disputed. This system they intended should be offered to all. The refusal of some States to accept it could not, upon principles of natural justice and right, oblige the others to remain fettered to a government which had been pronounced by twelve of the thirteen legislatures to be defective and inadequate to the exigencies of the Union. At the same time, the independent political existence of the people of each State made it impossible to treat them as a minority subject to the power of such majority as would be formed by the States that might adopt the Constitution. If the people of a State should ratify it, they would be bound by it. If they should refuse to ratify it, they would simply remain out of the new Union that would be formed by the rest. It was therefore determined that the Constitution should undertake to be in force only in those States by whose inhabitants it might be adopted.[385] Then came the question, in what mode the assent of the people of the States was to be given. The constitution of one of the States[386] provided that it should be altered only in a prescribed mode; and it was said that the adoption of the Constitution now proposed would involve extensive changes in the constitution of every State. This was equally true of the constitutions of those States which had provided no mode for making such changes, and in which the State officers were all bound by oath to support the existing constitution. These difficulties, however, were by no means insurmountable. It was universally acknowledged that the people of a State were the fountain of all political power, and if, in the method of appealing to them, the consent of the State government that such appeal should be made were involved, there could be no question that the proceeding would be in accordance with what had always been regarded as a cardinal principle of American liberty. For, since the birth of that liberty, it had been always assumed that, when it has become necessary to ascertain the will of the people on a new exigency, it is for the existing legislative power to provide for it by an ordinary act of legislation.[387] Whatever changes, therefore, in the State constitutions might become necessary in consequence of the adoption of the national Constitution, it would be a just presumption that the will of the people, duly ascertained by their legislature, had decided, by that adoption, that such changes should be made; and the formal act of making them could follow at any time when arrangements might be made for it. But if no mode of ratification of the national Constitution were to be prescribed, and it were left to each State to act upon it in any manner that it might prefer, there would be no uniformity in the mode of creating the new government in the different States; and if the Convention and the Congress were to refer its adoption to the State legislatures, it would not rest on the direct authority of the people. For these reasons, the Convention adhered to the plan of having the Constitution submitted directly to assemblies of representatives of the people in each State, chosen for the express purpose of deciding on its adoption.[388] There was still another question, of great practical importance, to be determined. Was the Constitution to go into operation at all, unless adopted by all the States, and if so, what number should be sufficient for its establishment? It appeared clearly enough, that to require a unanimous adoption would defeat all the labors of the Convention. Rhode Island had taken no part in the formation of the Constitution, and could not be expected to ratify it. New York had not been represented for some weeks in the Convention, and it was at least doubtful how the people of that State would receive the proposed system, to which a majority of their delegates had declared themselves to be strenuously opposed.[389] Maryland continued to be present in the Convention, and a majority of her delegates still supported the Constitution; but Luther Martin confidently predicted its rejection by the State, and it was evident that his utmost energies would be put forth against it. Under these circumstances, to have required a unanimous adoption by the States would have been fatal to the experiment of creating a new government. Some of the members were in favor of such a number as would form both a majority of the States and a majority of the people of the United States. But there was an idea familiar to the people, in the number that had been required under the Confederation upon certain questions of grave importance; and in order that the Constitution might avail itself of this established usage, it was determined that the ratifications of the conventions of _nine_ States should be sufficient to establish the Constitution between the States that might so ratify it.[390] The Constitution, as thus finally prepared, received the formal assent of the States in the Convention, on the last day of the session.[391] The great majority of the members desired that the instrument should go forth to the public, not only with an official attestation that it had been agreed upon by the States represented, but also with the individual sanction and signatures of their delegates. Three of the members present, however, Randolph and Mason of Virginia, and Gerry of Massachusetts, notwithstanding the proposed form of attestation contained no personal approbation of the system, and signified only that it had been agreed to by the unanimous consent of the States then present, refused to sign the instrument.[392] The objections which these gentlemen had to different features of the Constitution would have been waived, if the Convention had been willing to take a course quite opposite to that which had been thought expedient. They desired that the State conventions should be at liberty to propose amendments, and that those amendments should be finally acted upon by another general convention.[393] The nature of the plan, however, and the form in which it was to be submitted to the people of the States, made it necessary that it should be adopted or rejected as a whole, by the convention of each State. As a process of amendment by the action of the Congress and the State legislatures had been provided in the instrument, there was the less necessity for holding a second convention. The State conventions would obviously be at liberty to propose amendments, but not to make them a condition of their acceptance of the government as proposed. A letter having been prepared to accompany the Constitution, and to present it to the consideration and action of the existing Congress, the instrument was formally signed by all the other members then present. The official record sent to the Congress of the resolutions, which directed that the Constitution be laid before that body, recited the presence of the States of New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. New York was not regarded as officially present; but in order that the proceedings might have all the weight that a name of so much importance could give to them, in the place that should have been filled by his State, was recited the name of "Mr. Hamilton from New York." The prominence thus given to the name of Hamilton, by the absence of his colleagues, was significant of the part he was to act in the great events and discussions that were to attend the ratification of the instrument by the States. His objections to the plan were certainly not less grave and important than those which were entertained by the members who refused to give to it their signatures; but like Madison, like Pinckney and Franklin and Washington, he considered the choice to be between anarchy and convulsion, on the one side, and the chances of good to be expected of this plan, on the other. Upon this issue, in truth, the Constitution went to the people of the United States. There is a tradition, that, when Washington was about to sign the instrument, he rose from his seat, and, holding the pen in his hand, after a short pause, pronounced these words:--"Should the States reject this excellent Constitution, the probability is that an opportunity will never again offer to cancel another in peace,--the next will be drawn in blood."[394] FOOTNOTES: [374] Elliot, V. 332, 333. [375] First draft of the Constitution, Art. XVIII. Elliot, V. 381. [376] Constitution, Art. IV. § 4. [377] Elliot, V. 157. [378] Elliot, V. 376. [379] Elliot, V. 530-532. [380] Constitution, Art. I § 9. [381] Ibid. Art. I. § 3. [382] Elliot, V. 532. [383] Ibid. 551, 552. Constitution, Art. I § 3. [384] Constitution, Art. VI. [385] Elliot, V. 499. [386] Maryland. [387] Works of Daniel Webster, VI. 227. [388] The vote, however, was only six States to four. Elliot, V. 500. [389] Two of the New York delegates, Messrs. Yates and Lansing, left the Convention on the 5th of July. Hamilton had previously returned to the city of New York, on private business. He left June 29 and returned August 13. It appears from his correspondence that he was again in the city of New York on the 20th of August, and that he remained there until the 28th. On the 6th of September he was in the Convention. The vote of the State was not taken in the Convention after the retirement of Yates and Lansing. [390] 1 Elliot, V. 499-501. The article embodying this decision was the 21st in the report of the committee of detail. It became, on the revision, Article VIII. of the Constitution. [391] September 17. [392] This form of attestation had been adopted in the hope of gaining the signatures of all the members, but without success. [393] Mr. Madison has given the principal grounds of objection which these gentlemen felt to the Constitution. It is not necessary to repeat them here, as they were nearly all met by the subsequent amendments, so far as they were special, and did not relate to the general tendency of the system. (See Madison, Elliot, V. 552-558.) [394] My authority for this anecdote is the Pennsylvania Journal of November 14, 1787, where it was stated by a writer who dates his communication from Elizabethtown, November 7. BOOK V. ADOPTION OF THE CONSTITUTION. CHAPTER I. GENERAL RECEPTION OF THE CONSTITUTION.--HOPES OF A REUNION WITH GREAT BRITAIN.--ACTION OF THE CONGRESS.--STATE OF FEELING IN MASSACHUSETTS, NEW YORK, VIRGINIA, SOUTH CAROLINA, MARYLAND, AND NEW HAMPSHIRE.--APPOINTMENT OF THEIR CONVENTIONS. The national Convention was dissolved on the 14th of September. The state of expectation and anxiety throughout the country during its deliberations, and at the moment of its adjournment, will appear from a few leading facts and ideas, which illustrate the condition of the popular mind when the Constitution made its appearance. The secrecy with which the proceedings of the Convention had been conducted, the nature of its business, and the great eminence and personal influence of its principal members, had combined to create the deepest solicitude in the public mind in all the chief centres of population and intelligence throughout the Union. An assembly of many of the wisest and most distinguished men in America had been engaged for four months in preparing for the United States a new form of government, and the public had acquired no definite knowledge of their transactions, and no information respecting the nature of the system they were likely to propose. Under these circumstances, we may expect to find the most singular rumors prevailing during the session of the Convention, and a great excitement in the public mind in many localities, when the result was announced. Among the reports that were more or less believed through the latter part of the summer, was the idle one that the Convention were framing a system of monarchical government, and that the Bishop of Osnaburg was to be sent for, to be the sovereign of the new kingdom. Foolish as it may appear to us, this story occasioned some real alarm in its day. It is to be traced to a favorite idea of that class of Americans who had either been avowed "Tories" during the Revolution, or had secretly felt a greater sympathy with the mother country than with the land of their birth, and who were at this period generally called "Loyalists." Some of these persons had taken no part, on either side, during the Revolutionary war, and had abstained from active participation in public affairs since the peace. They were all of that class of minds whose tendencies led them to the belief that the materials for a safe and efficient republican government were not to be found in these States, and that the public disorders could be corrected only by a government of a very different character. Their feelings and opinions carried them towards a reconciliation with England, and their grand scheme for this purpose was to invite hither the titular Bishop of Osnaburg.[395] Their numbers were not large in any of the States; but the feeling of insecurity and the dread of impending anarchy were shared by others who had no particular inclination towards England; and it is not to be doubted that the Constitution, among the other mischiefs which it averted, saved the country from a desperate attempt to introduce a form of government which must have been crushed beneath commotions that would have made all government, for a long time at least, impracticable. The public anxiety, created by the reports in circulation, had reached such a point in the month of August,--when it was rumored that the Convention had recently given a higher tone to the system they were preparing,--that members found it necessary to answer numerous letters of inquiry from persons who had become honestly alarmed. "Though we cannot affirmatively tell you," was their answer, "what we are doing, we can negatively tell you what we are _not_ doing:--we never once thought of a king."[396] All doubt and uncertainty were dispelled, however, by the publication of the Constitution in the newspapers of Philadelphia, on the 19th of September. It was at once copied into the principal journals of all the States, and was perhaps as much read by the people at large as any document could have been in the condition of the means of public intelligence which a very imperfect post-office department then afforded. It met everywhere with warm friends and warm opponents; its friends and its opponents being composed of various classes of men, found, in different proportions, in almost all of the States. Those who became its advocates were, first, a large body of men, who recognized, or thought they recognized, in it the admirable system which it in fact proved to be when put into operation; secondly, those who, like most of the statesmen who made it, believed it to be the best attainable government that could be adopted by the people of the United States, overlooking defects which they acknowledged, or trusting to the power of amendment which it contained; and, thirdly, the mercantile and manufacturing classes, who regarded its commercial and revenue powers with great favor. Its adversaries were those who had always opposed any enlargement of the federal system; those whose consequence as politicians would be diminished by the establishment of a government able to attract into its service the highest classes of talent and character, and presenting a service distinct from that of the States; those who conscientiously believed its provisions and powers dangerous to the rights of the States and to public liberty; and, finally, those who were opposed to any government, whether State or national or federal, that would have vigor and energy enough to protect the rights of property, to prevent schemes of plunder in the form of paper money, and to bring about the discharge of public and private debts. The different opponents of the Constitution being animated by these various motives, great care should be taken by posterity, in estimating the conduct of individuals, not to confound these classes with each other, although they were often united in action. As the Constitution presented itself to the people in the light of a proposal to enlarge and reconstruct the system of the Federal Union, its advocates became known as the "Federalists," and its adversaries as the "Anti-Federalists." This celebrated designation of Federalist, which afterwards became so renowned in our political history as the name of a party, signified at first nothing more than was implied in the title of the essays which passed under that name, namely, an advocacy of the Constitution of the United States.[397] Midway between the active friends and opponents of the Constitution lay that great and somewhat inert mass of the people, which, in all free countries, finally decides by its preponderance every seemingly doubtful question of political changes. It was composed of those who had no settled convictions or favorite theories respecting the best form of a general government, and who were under the influence of no other motive than a desire for some system that would relieve their industry from the oppressions under which it had long labored, and would give security, peace, and dignity to their country. Ardently attached to the principles of republican government and to their traditionary maxims of public liberty, and generally feeling that their respective States were the safest depositaries of those principles and maxims, this portion of the people of the United States were likely to be much influenced by the arguments against the Constitution founded on its want of what was called a Bill of Rights, on its omission to secure a trial by jury in civil cases, and on the other alleged defects which were afterwards corrected by the first ten Amendments. But they had great confidence in the principal framers of the instrument, an unbounded reverence for Washington and Franklin, and a willingness to try any experiment sanctioned by men so illustrious and so entirely incapable of any selfish or unworthy purpose.[398] There were, however, considerable numbers of the people, in the more remote districts of several of the States, who had a very imperfect acquaintance, if they had any, with the details of the proposed system, at the time when their legislatures were called upon to provide for the assembling of conventions; for we are not to suppose that what would now be the general and almost instantaneous knowledge of any great political event or topic, could have taken place at that day concerning the proposed Constitution of the United States. Still it was quite generally understood before its final ratification in the States where its adoption was postponed to the following year, where information was most wanted, and where the chief struggles occurred; and it is doubtless correct to assert that its adoption was the intelligent choice of a majority of the people of each State, as well as the choice of their delegates, when their conventions successively acted upon it. On the adjournment of the Convention, Madison, King, and Gorham, who held seats in the Congress of the Confederation, hastened to the city of New York, where that body was then sitting. They found eleven States represented.[399] But they found also that an effort was likely to be made, either to arrest the Constitution on its way to the people of the States, or to subject it to alteration before it should be sent to the legislatures. It was received by official communication from the Convention in about ten days after that assembly was dissolved. All that was asked of the Congress was, that they should transmit it to their constituent legislatures for their action. The old objection, that the Congress could with propriety participate in no measure designed to change the form of a government which they were appointed to administer, having been answered, Richard Henry Lee of Virginia proposed to amend the instrument by inserting a Bill of Rights, trial by jury in civil cases, and other provisions in conformity with the objections which had been made in the Convention by Mr. Mason. To the address and skill of Mr. Madison, I think, the defeat of this attempt must be attributed. If it had succeeded, the Constitution could never have been adopted by the necessary number of States; for the recommendation of the Convention did not make the action of the State legislatures conditional upon their receiving the instrument from the Congress; the legislatures would have been at liberty to send the document published by the Convention to the assemblies of delegates of the people, without adding provisions that might have been added by the Congress; some of them would have done so, while others would have followed the action of the Congress, and thus there would have been in fact two Constitutions before the people of the States, and their acts of ratification would have related to dissimilar instruments. This consideration induced the Congress, by a unanimous vote of the States present, to adopt a resolution which, while it contained no approval of the Constitution, abstained from interfering with it as it came from the Convention, and transmitted it to the State legislatures, "in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the Convention made and provided in that case."[400] In Massachusetts, the Constitution was well received, on its first publication, so far as its friends in the central portion of the Union could ascertain. Mr. Gerry was a good deal censured for refusing to sign it, and the public voice, in Boston and its neighborhood, appeared to be strongly in its favor. But in a very short time three parties were formed among the people of the State, in such proportions as to make the result quite uncertain. The commercial classes, the men of property, the clergy, the members of the legal profession, including the judges, the officers of the late army, and most of the people of the large towns, were decidedly in favor of the Constitution. This party amounted to three sevenths of the people of the State. The inhabitants of the district of Maine, who were then looking forward to the formation of a new State, would be likely to vote for the new Constitution, or to oppose it, as they believed it would facilitate or retard their wishes; and this party numbered two sevenths. The third party consisted of those who had been concerned in the late insurrection under Shays, and their abettors; the majority of them desiring the annihilation of debts, public and private, and believing that the proposed Constitution would strengthen all the rights of property. Their numbers were estimated at two sevenths of the people.[401] It was evident that a union of the first two parties would secure the ratification of the instrument, and a union of the last two would defeat it. Great caution, conciliation, and good temper were, therefore, required, on the part of its friends. The influence of Massachusetts on Virginia, on New York, and indeed on all the States that were likely to act after her, would be of the utmost importance. The State convention was ordered to assemble in January. In New York, as elsewhere, the first impressions were in favor of the Constitution. In the city, and in the southern counties generally, it was from the first highly popular. But it was soon apparent that the whole official influence of the executive government of the State would be thrown against it. There had been a strong party in the State, ever since its refusal to bestow on the Congress the powers asked for in the revenue system of 1783, who had regarded the Union with jealousy, and steadily opposed the surrender to it of any further powers. Of this party, the Governor, George Clinton, was now the head; and the government of the State, which embraced a considerable amount of what is termed "patronage," was in their hands. Two of the delegates of the State to the national Convention, Yates and Lansing, had retired from that body before the Constitution was completed, and had announced their opposition to it in a letter to the Governor, which, from its tone and the character of its objections, was likely to produce a strong impression on the public mind. It became evident that the Constitution could be carried in the State of New York in no other way than by a thorough discussion of its merits,--such a discussion as would cause it to be understood by the people, and would convince them that its adoption was demanded by their interests. For this purpose, Hamilton, Madison, and Jay, under the common signature of Publius, commenced the publication of the series of essays which became known as The Federalist. The first number was issued in the latter part of October. In January, the Governor presented the official communication of the instrument from the Congress to the legislature, with the cold remark, that, from the nature of his official position, it would be improper for him to have any other agency in the business than that of laying the papers before them for their information. Neither he nor his party, however, contented themselves with this abstinence. After a severe struggle, resolutions ordering a State convention to be elected were passed by the bare majorities of three in the Senate and two in the House, on the first day of February, 1788. The elections were held in April; and when the result became known, in the latter part of May, it appeared that the Anti-Federalists had elected two thirds of the members of the Convention, and that probably four sevenths of the people of the State were unfriendly to the Constitution. Backed by this large majority, the leaders of the Anti-Federal party intended to meet in convention at the appointed time, in June, and then to adjourn until the spring or summer of 1789. Their argument for this course was, that, if the Constitution had been adopted in the course of a twelvemonth by nine other States, New York would have an opportunity to witness its operation and to act according to circumstances. They would thus avoid an immediate rejection,--a step which might lead the Federalists to seek a separation of the southern from the northern part of the State, for the purpose of forming a new State. On the other hand, the Federalists rested their hopes upon what they could do to enlighten the public at large, and upon the effect on their opponents of the action of other States, especially of Virginia, whose convention was to meet at nearly the same time. The Convention of New York assembled at Poughkeepsie,[402] on the 17th of June, 1788. However strong the opposition in other States, it was to be in Virginia far more formidable, from the abilities and influence of its leaders, from the nature of their objections, and from the peculiar character of the State. Possessed of a large number of men justly entitled to be regarded then and always as statesmen, although many of them were prone to great refinements in matters of government; filled with the spirit of republican freedom, although its polity and manners were marked by several aristocratic features; having, on the one hand, but few among its citizens interested in commerce, and still fewer, on the other hand, of those levelling and licentious classes which elsewhere sought to overturn or control the interests of property; ever ready to lead in what it regarded as patriotic and demanded by the interests of the Union, but jealous of its own dignity and of the rights of its sovereignty;--the State of Virginia would certainly subject the Constitution to as severe an ordeal as it could undergo anywhere, and would elicit in the discussion all the good or the evil that could be discovered in the examination of a system before it had been practically tried. The State was to feel, it is true, the almost overshadowing influence of Washington, in favor of the new system, exerted, not by personal participation in its proceedings, but in a manner which could leave no doubt respecting his opinion. But it was also to feel the strenuous opposition of Patrick Henry, that great natural orator of the Revolution, whose influence over popular assemblies was enormous, and who added acuteness, subtilty, and logic to the fierce sincerity of his unstudied harangues, although his knowledge was meagre and his range of thought circumscribed; and the not less strenuous or effective opposition of George Mason, who had little of the eloquence and passion of his renowned compatriot, but who was one of the most profound and able of all the American statesmen opposed to the Constitution, while he was inferior in general powers and resources to not more than two or three of those who framed or advocated it. Richard Henry Lee, William Grayson, Benjamin Harrison, John Tyler, and others of less note, were united with Henry and Mason in opposing the Constitution. Its leading advocates were to be Madison, Marshall, the future Chief Justice of the United States, George Nicholas, and the Chancellor Pendleton. The Governor, Edmund Randolph, occupied for a time a middle position between its friends and its opponents, but finally gave to it his support, from motives which I have elsewhere described as eminently honorable and patriotic. One of the most distinguished of the public men of Virginia had been absent in the diplomatic service of the country for three years. His eminent abilities and public services, his national reputation, and the influence of his name, naturally made both parties anxious to claim the authority of Jefferson, and he was at once furnished with a copy of the Constitution as soon as it appeared. In the heats of subsequent political conflicts he has been often charged by his opponents with a general hostility to the Constitution. The truth is, that Mr. Jefferson's opinions on the subject of government, and of what was desirable and expedient to be done in this country, united with the effect of his long absence from home,[403] did lead him, at first, to think and to say that the Constitution had defects which, if not corrected, would destroy the liberties of America. He was by far the most democratic, in the tendency of his opinions, of all the principal American statesmen of that age. He was, according to his own avowal, no friend to an energetic government anywhere. He carried abroad the opinion that the Confederation could be adapted, with a few changes, to all the wants of the Union; and this opinion he continued to retain, because the events which had taken place here during his absence did not produce upon his mind the effect which they produced upon the great majority of public men who remained in the midst of them. He freely declared to more than one of his correspondents in Virginia, at this time, that such disorders as had been witnessed in Massachusetts were necessary to public liberty, and that the national Convention had been too much influenced by them, in preparing the Constitution. He held that the natural progress of things is for liberty to lose and for government to gain ground; and that no government should be organized without those express and positive restraints which will jealously guard the liberties of the people, even if those liberties should periodically break into licentiousness. One of his favorite maxims of government was "rotation in office"; and he thought the government of the Union should have cognizance only of matters involved in the relations of the people of each State to foreign countries, or to the people of the other States, and that each State should retain the exclusive control of all its internal and domestic concerns, and especially the power of direct taxation. Hence it is not surprising that, when Mr. Jefferson received at Paris, early in November, a copy of the Constitution, and when he found in it no express declarations insuring the freedom of religion, freedom of the press, and freedom of the person under the uninterrupted protection of the _habeas corpus_, and no trial by jury in civil cases, and found also that the President would be re-eligible, and that the government would have the power of direct taxation, his anxiety should have been excited. It is a mistake, however, to suppose that he counselled a direct rejection of the instrument by the people of Virginia. His first suggestion was, that the nine States which should first act upon it should adopt it, unconditionally, and that the four remaining States should accept it only on the previous condition that certain amendments should be made. This plan of his became known in Virginia in the course of the winter of 1787-88, and it gave the Anti-Federalists what they considered a warrant for using his authority on their side. But before the following spring, when he had had an opportunity to see the course pursued by Massachusetts, he changed his opinion, and authorized his friends to say that he regarded an unconditional acceptance by each State, and subsequent amendments, in the mode provided by the Constitution, as the only rational plan.[404] He also abandoned the opinion that the general government ought not to have the power of direct taxation; but he never receded from his objections founded on the want of a bill of rights, and of trial by jury, and on the re-eligibility of the President. Immediately after his return to Mount Vernon from the national Convention, Washington sent copies of the Constitution to Patrick Henry, Mason, Harrison, and other leading persons whose opposition he anticipated, with a temperate but firm expression of his own opinion. The replies of these gentlemen furnished him with the grounds of their objections, and at the same time relieved him, as to all of them but Henry, from the apprehension that they might resist the calling of a State convention. Mason and Henry were both members of the legislature. The former was expressly instructed by his constituents of Alexandria county[405] to vote for a submission of the Constitution to the people of the State in convention;--a vote which he would probably have given without instruction, as he declared to General Washington that he should use all his influence for this purpose. Mr. Henry was not instructed, and the friends of the Constitution expected his resistance. The legislature assembled in October, and on the first day of the session, in a very full House, Henry declared, to the surprise of everybody, that the proposed Constitution must go to a popular convention. The elections for such a body were ordered to be held in March and April of the following spring. When they came on, the news that the convention of New Hampshire had postponed their action was employed by the Anti-Federalists, who insisted that this step had been taken in deference to Virginia; although it was in fact taken merely in order that the delegates of New Hampshire might get their previous instructions against the Constitution removed by their constituents. The pride of Virginia was touched by this electioneering expedient, and the result was that the parties in the State convention were nearly balanced, the Federalists however having, as they supposed, a majority.[406] The convention was to assemble on the 2d of June, 1788. In the legislature of South Carolina the Constitution was debated, with great earnestness, for three days, before it was decided to send it to a popular convention. This was owing to the great persistency of Rawlins Lowndes, who carried on the discussion in opposition to the Constitution, almost single-handed and with great ability, against the two Pinckneys, Pierce Butler, John and Edward Rutledge, John Julius Pringle, Robert Barnwell, Dr. David Ramsay, and many other gentlemen. At length, on the 19th of January, a resolution was passed, directing a convention of the people to assemble on the 12th of May. The debate in the legislature had tended to diffuse information respecting the system, but it had also produced a formidable minority throughout the State. Mr. Lowndes had employed, with a good deal of skill, the local arguments which would be most likely to form the objections of a citizen of South Carolina. He inveighed against the regulation of commerce, the power over the slave-trade that was to belong to Congress at the end of twenty years, and the preponderance which he contended would be given to the Eastern States by the system of representation in Congress; and although he was ably answered on all points, the effect of the discussion was such, that a large minority was returned to the Convention having a strong hostility to the proposed system.[407] The legislature of Maryland assembled in December, and directed the delegates who had represented the State in the national Convention to attend and give an account of the proceedings of that assembly. It was in compliance with this direction that Luther Martin laid before the legislature that celebrated communication which embodied not only a very clear statement of the mode in which the principal compromises of the Constitution were framed, as seen from the point of view occupied by one who resisted them at every step, but also an exceedingly able argument against the fundamental principle of the proposed government. It was a paper, too, marked throughout with an earnestness almost amounting to fanaticism. Repelling, with natural indignation and dignity, the imputation that he was influenced by a State office which he then held, he referred to the numerous honors and emoluments which the Constitution of the United States would create, and suggested--what his abilities and reputation well justified--that his chance of obtaining a share of them was as good as most men's. "But this," was his solemn conclusion, "I can say with truth,--that so far was I from being influenced in my conduct by interest, or the consideration of office, that I would cheerfully resign the appointment I now hold; I would bind myself never to accept another, either under the general government or that of my own State; I would do more, sir;--so destructive do I consider the present system to the happiness of my country, I would cheerfully sacrifice that share of property with which Heaven has blessed a life of industry; I would reduce myself to indigence and poverty; and those who are dearer to me than my own existence, I would intrust to the care and protection of that Providence who hath so kindly protected myself,--if on _those terms only_ I could procure my country to reject those chains which are forged for it." Such a strength of conviction as this, on the part of a man of high talent, was well calculated to produce an effect. No document that appeared anywhere, against the Constitution, was better adapted to rouse the jealousy, to confirm the doubts, or to decide the opinions, of a certain class of minds. But it was an argument which reduced the whole question substantially to the issue, whether the principle of the Union could safely be changed from that of a federal league, with an equality of representation and power as between the States, to a system of national representation in a legislative body having cognizance of certain national interests, in one branch of which the people inhabiting the respective States should have power in proportion to their numbers.[408] This was a question on which men would naturally and honestly differ; but it was a question which a majority of reflecting men, in almost every State, were likely, after due inquiry, to decide against the views of Mr. Martin, because it was clear that the Confederation had failed, and had failed chiefly by reason of the peculiar and characteristic nature of its representative system, and because the representative system proposed in the Constitution was the only one that could be agreed upon as the alternative. Mr. Martin's objections, however, like those of other distinguished men who took the same side in other States, were of a nature to form the creed of an earnest, conscientious, and active minority. They had this effect in the State of Maryland. The legislature ordered a State convention, to consider the proposed Constitution, and directed it to meet on the 21st of April, 1788. The convention of New Hampshire was to assemble in February. A large portion of the State lay remote from the channels of intelligence, and a considerable part of the people in the interior had not seen the Constitution, when they were called upon to elect their delegates. The population, outside of two or three principal places, was a rural one, thinly scattered over townships of large territorial extent, lying among the hills of a broken and rugged country, extending northerly from the narrow strip of sea-coast towards the frontier of Canada. It was easy for the opposition to persuade such a people that a scheme of government had been prepared which they ought to reject; and the consequence of their efforts was that the State convention assembled, probably with a majority, certainly with a strong minority, of its members bound by positive instructions to vote against the Constitution which they were to consider. I have thus, in anticipation of the strict order of events, given a general account of the position of this great question in six of the States, down to the time of the meeting of their respective conventions, because when the session of the convention of Massachusetts commenced, in January, 1788, the people of the five States of Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut had successively ratified the Constitution without proposing any amendments, and because the action of the others, extending through the six following months, embraced the real crisis to which the Constitution was subjected, and developed what were thereafter to be considered as its important defects, according to the view of a majority of the States, and probably also of a majority of the people of all the States. For although the people of Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut ratified the Constitution without insisting on previous or subsequent amendments, it is certain that some of the same topics were the causes of anxiety and objection in those States, which occasioned so much difficulty, and became the grounds of special action, in the remaining States. In coming, however, to the more particular description of the resistance which the Constitution encountered, it will be necessary to discriminate between the opposition that was made to the general plan of the government, or to the particular features of it which it was proposed to create, and that which was founded on its omission to provide for certain things that were deemed essential. Of what may be called the positive objections to the Constitution, it may be said, in general, that, however fruitful of debate, or declamation, or serious and important doubt, might be the question whether such a government as had been framed by the national Convention should be substituted for the Confederation, the opposition were not confined to this question, as the means of persuading the people that the proposed system ought to be rejected. One of the most deeply interested of the men who were watching the currents of public opinion with extreme solicitude, observed "a strong belief in the people at large of the insufficiency of the Confederation to preserve the existence of the Union, and of the necessity of the Union to their safety and prosperity; of course, a strong desire of a change, and a predisposition to receive well the propositions of the Convention."[409] But while the Constitution came before the people with this conviction and this predisposition in its favor, yet when its opponents, in addition to their positive objections to what it did contain, could point to what it did _not_ embrace, and could say that it proposed to establish a government of great power, without providing for rights of primary importance, and without any declaration of the cardinal maxims of liberty which the people had from the first been accustomed to incorporate with their State constitutions; and while the local interests, the sectional feelings, and the separate policy, real or supposed, of different States, furnished such a variety of means for defeating its adoption by the necessary number of nine States;--we may not wonder that its friends should have been doubtful of the issue. "It is almost arrogance," said the same anxious observer, "in so complicated a subject, depending so entirely upon the incalculable fluctuations of the human passions, to attempt even a conjecture about the result."[410] FOOTNOTES: [395] It may be amusing to Americans of this and future generations to know who this personage was for whom it was rumored that the Loyalists desired to "send," and whose advent as a possible ruler of this country was a vague apprehension in the popular mind for a good while, and finally came to be imputed as a project to the framers of the Constitution. The Bishop of Osnaburg was no other than the late Duke of York, Frederick, the second son of King George III.; a prince whose conduct as commander-in-chief of the army, in consequence of the sale of commissions by his mistress, one Mrs. Clarke, became in 1809 a subject of inquiry, leading to the most scandalous revelations, before the House of Commons. The Duke was born in 1763, and was consequently, at the period spoken of in the text, at the ripe age of twenty-four. When about a year old (1764), he was chosen Bishop of Osnaburg. This was a German province (Osnabrück), formerly a bishopric of great antiquity, founded by Charlemagne. At the Reformation most of the inhabitants became Lutherans, and by the Treaty of Westphalia it was agreed that it should be governed alternately by a Roman Catholic and a Protestant Bishop. In 1802 it was secularized, and assigned as an hereditary principality to George III., in his capacity of King of Hanover. Prince Frederick continued to be called by the title of Bishop of Osnaburg, until he was created Duke of York. I am not aware that the whispers of his name in the secret counsels of our Loyalists, as a proposed king for America, became known in England. Whether such knowledge would have excited a smile, or have awakened serious hopes, is a question on which the reader can speculate. But it is certain that there were persons in this country, and in the neighboring British Provinces, who had long hoped for a reunion of the American States with the parent country, through this or some other "mad project." Colonel Humphreys, (who had been one of Washington's _aides_,) writing to Hamilton, from New Haven, under date of September 16, 1787, says: "The quondam Tories have undoubtedly conceived hopes of a future union with Great Britain, from the inefficacy of our government, and the tumults which prevailed during the last winter. I saw a letter, written at that period, by a clergyman of considerable reputation in Nova Scotia, to a person of eminence in this State, stating the impossibility of our being happy under our present constitution, and proposing (now we could think and argue calmly on all the consequences), that the efforts of the moderate, the virtuous, and the brave should be exerted to effect a reunion with the parent state.... It seems, by a conversation I have had here, that the ultimate practicability of introducing the Bishop of Osnaburg is not a novel idea among those who were formerly termed Loyalists. Ever since the peace it has been occasionally talked of and wished for. Yesterday, where I dined, half jest, half earnest, he was given as the first toast. I leave you now, my dear friend, to reflect how ripe we are for the most mad and ruinous project that can be suggested, especially when, in addition to this view, we take into consideration how thoroughly the patriotic part of the community, the friends of an efficient government, are discouraged with the present system, and irritated at the popular demagogues who are determined to keep themselves in office, at the risk of everything. Thence apprehensions are formed, that, though the measures proposed by the Convention may not be equal to the wishes of the most enlightened and virtuous, yet that they will be too high-toned to be adopted by our popular assemblies. Should that happen, our political ship will be left afloat on a sea of chance, without a rudder as well as without a pilot." (Works of Hamilton, I. 443.) In a grave and comprehensive private memorandum, drawn up by Hamilton soon after the Constitution appeared, in which he summed up the probabilities for and against its adoption, and the consequences of its rejection, the following occurs, as among the events likely to follow such rejection: "A reunion with Great Britain, from universal disgust at a state of commotion, is not impossible, though not much to be feared. The most plausible shape of such a business would be, the establishment of a son of the present monarch in the supreme government of this country, with a family compact." (Works, II. 419, 421.) [396] Pennsylvania Journal, August 22, 1787. [397] The history of the term "Federal," or "Federalist," offers a curious illustration of the capricious changes of sense which political designations often undergo, within a short period of time, according to the accidental circumstances which give them their application. During the discussions of the Convention which framed the Constitution of the United States, the term _federal_ was employed in its truly philosophic sense, to designate the nature of the government established by the Articles of Confederation, in distinction from a national system, that would be formed by the introduction of the plan of having the States represented in the Congress in proportion to the numbers of their inhabitants. But when the Constitution was before the people of the States for their adoption, its friends and advocates were popularly called Federalists, because they favored an enlargement of the Federal government at the expense of some part of the State sovereignties, and its opponents were called the Anti-Federalists. In this use, the former term in no way characterized the nature of the system advocated, but merely designated a supporter of the Constitution. A few years later, when the first parties were formed, in the first term of Washington's Administration, it so happened that the leading men who gave a distinct character to the development which the Constitution then received had been prominent advocates of its adoption, and had been known therefore as Federalists, as had also been the case with some of those who separated themselves from this body of persons and formed what was termed the Republican, afterwards the Democratic party. But the prominent supporters of the policy which originated in Washington's administration continued to be called Federalists, and the term thus came to denote a particular school of politics under the Constitution, although it previously signified merely an advocacy of its adoption. Thus, for example, Hamilton, in 1787, was no Federalist, because he was opposed to the continuance of a federal, and desired the establishment of a national government. In 1788, he was a Federalist, because he wished the Constitution to be adopted; and he afterwards continued to be a Federalist, because he favored a particular policy in the administration of the government, under the Constitution. It was in this latter sense that the term became so celebrated in our political history. The reader will observe that I use it, of course, in this work, only in the sense attached to it while the Constitution was before the people of the States for adoption. [398] A striking proof of the importance attached by the people to the opinions of Washington and Franklin may be found in a controversy carried on for a short time in the newspapers of Philadelphia and New York, after the Constitution appeared, whether those distinguished persons _really approved_ what they had signed. [399] All but Maryland and Rhode Island. [400] Passed September 28, 1787. Journals, XII. 149-166. [401] This is the substance of a careful account given by General Knox to General Washington. (Works of Washington, IX. 310, 311.) [402] A town on the Hudson River, seventy-five miles north of the city of New York. [403] He went abroad in the summer of 1784. [404] Compare Mr. Jefferson's autobiography, and his correspondence, in the first, second, and third volumes of his collected works (edition of 1853), and the letters of Mr. Madison. [405] In the newspapers of the time there is to be found a story that Mr. Mason was very roughly received on his arrival at the city of Alexandria, after the adjournment of the national Convention, on account of his refusal to sign the Constitution. The occurrence is not alluded to in Washington's correspondence, although he closely observed Mr. Mason's movements, and regarded them with evident anxiety. The story is told in the Pennsylvania Journal of October 17, 1787,--a strong Federal paper. I know of no other confirmation of it than the fact that the people of Alexandria embraced the Constitution from the first with "enthusiastic warmth," according to the account given by General Washington to one of his correspondents. (Works, IX. 272.) [406] Washington's Works, IX. 266, 267, 273, 340-342, 345, 346. [407] This debate of three days in the South Carolina legislature was one of the most able of all the discussions attending the ratification of the Constitution. Mr. Lowndes was overmatched by his antagonists, but he resisted with great spirit, finally closed with the declaration that he saw dangers in the proposed government so great, that he could wish, when dead, for no other epitaph than this: "Here lies the man that opposed the Constitution, because it was ruinous to the liberty of America." He lived to find his desired epitaph a false prophecy. He was the father, of the late William Lowndes, who represented the State of South Carolina in Congress, with so much honor and distinction, during the administration of Mr. Madison. [408] Mr. Martin's objections extended to many of the details of the Constitution, but his great argument was that directed against its system of representation, which he predicted would destroy the State governments. [409] Hamilton, Works, II. 419, 420. [410] Hamilton, Works, II. 421. CHAPTER II. RATIFICATIONS OF DELAWARE, PENNSYLVANIA, NEW JERSEY, GEORGIA, AND CONNECTICUT, WITHOUT OBJECTION.--CLOSE OF THE YEAR 1787.--BEGINNING OF THE YEAR 1788.--RATIFICATION OF MASSACHUSETTS, THE SIXTH STATE, WITH PROPOSITIONS OF AMENDMENT.--RATIFICATION OF MARYLAND, WITHOUT OBJECTION.--SOUTH CAROLINA, THE EIGHTH STATE, ADOPTS, AND PROPOSES AMENDMENTS. The first State that ratified the Constitution, although its convention was not the first to assemble, was Delaware. It was a small, compact community, with the northerly portion of its territory lying near the city of Philadelphia, with which its people had constant and extensive intercourse. Its public men were intelligent and patriotic. In the national Convention it had contended with great spirit for the interests of the smaller States, and its people now had the sagacity and good sense to perceive that they had gained every reasonable security for their peculiar rights. The public press of Philadelphia friendly to the Constitution furnished the means of understanding its merits, and the discussions in the convention of Pennsylvania, which assembled before that of Delaware, threw a flood of light over the whole subject, which the people of Delaware did not fail to regard. Their delegates unanimously ratified and adopted the Constitution on the 7th of December. The convention of Pennsylvania met, before that of any of the other States, at Philadelphia, on the 20th of November. It was the second State in the Union in population. Its chief city was perhaps the first in the Union in refinement and wealth, and had often been the scene of great political events of the utmost interest and importance to the whole country. There had sat, eleven years before, that illustrious Congress of deputies from the thirteen Colonies, who had declared the independence of America, had made Washington commander-in-chief of her armies, and had given her struggle for freedom a name throughout the world. There, the Revolutionary Congress had continued, with a short interruption, to direct the operations of the war. There, the alliance with France was ratified, in 1778. There, the Articles of Confederation were finally carried into full effect, in 1781. There, within six months afterwards, the Congress received intelligence of the surrender of Cornwallis, and walked in procession to one of the churches of the city, to return thanks to God for a victory which in effect terminated the war. There, the instructions for the treaty of peace were given, in 1782, and there the Constitution of the United States had been recently framed. For more than thirteen years, since the commencement of the Revolution, and with only occasional intervals, the people of Philadelphia had been accustomed to the presence of the most eminent statesmen of the country, and had learned, through the influences which had gone forth from their city, to embrace in their contemplation the interests of the Union. They placed in the State convention, that was to consider the proposed Constitution of the United States, one of the wisest and ablest of its framers,--James Wilson. The modesty of his subsequent career,[411] and the comparatively little attention that has been bestowed by succeeding generations upon the personal exertions that were made in framing and establishing the Constitution, must be regarded as the causes that have made his reputation, at this day, less extensive and general than his abilities and usefulness might have led his contemporaries to expect that it would be. Yet the services which he rendered to the country, first in assisting in the preparation of the Constitution, and afterwards in securing its adoption by the State of Pennsylvania, should place his name high upon the list of its benefactors. He had not the political genius which gave Hamilton such a complete mastery over the most complex subjects of government, and which enabled him, when the Constitution had been adopted, to give it a development in practice that made it even more successful than its theory alone could have allowed any one to regard as probable; nor had he the talent of Madison for debate and for constitutional analysis; but in the comprehensiveness of his views, and in his perception of the necessities of the country, he was not their inferior, and he was throughout one of their most efficient and best informed coadjutors. He had to encounter, in the convention of the State, a body of men, a majority of whom were not unfriendly to the Constitution, but among whom there was a minority very hard to be conciliated. In the counties which lay west of the Susquehanna,--the same region which afterwards, in Washington's administration, became the scene of an insurrection against the authority of the general government,--there was a rancorous, active, and determined opposition. Mr. Wilson, being the only member of the State convention who had taken part in the framing of the Constitution, was obliged to take the lead in explaining and defending it. His qualifications for this task were ample. He had been a very important and useful member of the national Convention; he had read every publication of importance, on both sides of the question, that had appeared since the Constitution was published, and his legal and historical knowledge was extensive and accurate. No man succeeded better than he did, in his arguments on that occasion, in combating the theory that a State government possessed the whole political sovereignty of the people of the State. However true it might be, he said, in England, that the Parliament possesses supreme and absolute power, and can make the constitution what it pleases, in America it has been incontrovertible since the Revolution, that the supreme, absolute, and uncontrollable power is in the people, before they make a constitution, and remains in them after it is made. To control the power and conduct of the legislature by an overruling constitution, was an improvement in the science and practice of government reserved to the American States; and at the foundation of this practice lies the right to change the constitution at pleasure,--a right which no positive institution can ever take from the people. When they have made a State constitution, they have bestowed on the government created by it a certain portion of their power; but the fee simple of their power remains in themselves. Mr. Wilson was equally clear in accounting for the omission to insert a bill of rights in the Constitution of the United States. In a government, he observed, consisting of enumerated powers, such as was then proposed for the United States, a bill of rights, which is an enumeration of the powers reserved by the people, must either be a perfect or an imperfect statement of the powers and privileges reserved. To undertake a perfect enumeration of the civil rights of mankind, is to undertake a very difficult and hazardous, and perhaps an impossible task; yet if the enumeration is imperfect, all implied power seems to be thrown into the hands of the government, on subjects in reference to which the authority of government is not expressly restrained, and the rights of the people are rendered less secure than they are under the silent operation of the maxim that every power not expressly granted remains in the people. This, he stated, was the view taken by a large majority of the national Convention, in which no direct proposition was ever made, according to his recollection, for the insertion of a bill of rights.[412] There is, undoubtedly, a general truth in this argument, but, like many general truths in the construction of governments, it may be open to exceptions when applied to particular subjects or interests. It appears to have been, for the time, successful; probably because the opponents of the Constitution, with whom Mr. Wilson was contending, did not bring forward specific propositions for the declaration of those particular rights which were made the subjects of special action in other State conventions. Besides a very thorough discussion of these great subjects, Mr. Wilson entered into an elaborate examination and defence of the whole system proposed in the Constitution. He was most ably seconded in his efforts by Thomas McKean, then Chief Justice of Pennsylvania and afterwards its Governor, the greater part of whose public life had been passed in the service of Delaware, his native State, and who had always been a strenuous advocate of the interests of the smaller States, but who found himself satisfied with the provision for them made by the Constitution for the construction of the Senate of the United States.[413] "I have gone," said he, "through the circle of office, in the legislative, executive, and judicial departments of government; and from all my study, observation, and experience, I must declare, that, from a full examination and due consideration of this system, it appears to me the best the world has yet seen. I congratulate you on the fair prospect of its being adopted, and am happy in the expectation of seeing accomplished what has long been my ardent wish, that you will hereafter have a salutary permanency in magistracy and stability in the laws." The result of the discussion in the convention of Pennsylvania was the ratification of the Constitution. The official ratification sent to Congress was signed by a very large majority of the delegates, and contains no notice of any dissent.[414] But the representatives of that portion of the State which lay west of the Susquehanna generally refused their assent, and their district afterwards became the place in which the proposition was considered whether the government should be allowed to be organized.[415] The convention of New Jersey was in session at the time of the ratification by Pennsylvania. Mr. Madison had passed through the State, in the autumn, on his way to the Congress, then sitting in the city of New York, and could discover no evidence of serious opposition to the Constitution. Lying between the States of New York and Pennsylvania, New Jersey was closely watched by the friends and the opponents of the Constitution in both of those States, and was likely to be much influenced by the predominating sentiment in the one that should first act.[416] But the people of New Jersey had, in truth, fairly considered the whole matter, and had found what their own interests required. They alone, of all the States, when the national Convention was instituted, had expressly declared that the regulation of commerce ought to be vested in the general government. They had learned that to submit longer to the diverse commercial and revenue systems in force in New York on the one side of them, and in Pennsylvania on the other side, would be like remaining between the upper and the nether millstone. Their delegates in the national Convention had, it is true, acted with those of New York, in the long contest concerning the representative system, resisting at every step each departure from the principle of the Confederation, until the compromise was made which admitted the States to an equal representation in the Senate. Content with the security which this arrangement afforded, the people of New Jersey had the sagacity to perceive that their interests were no longer likely to be promoted by following in the lead of the Anti-Federalists of New York. Their delegates unanimously ratified the Constitution on the 12th of December, five days after the ratification of Pennsylvania. A few days later, there came from the far South news that the convention of Georgia had, with like unanimity, adopted the Constitution. Neither the people of the State, nor their delegates, could well have acted under the influence of what was taking place in the centre of the Union. Their situation was too remote for the reception, at that day, within the same fortnight, of the news of events that had occurred in Pennsylvania and New Jersey, and they could scarcely have read the great discussions that were going on in various forms of controversy in the cities of New York and Philadelphia, and throughout the Middle and the Eastern States. Wasted excessively during the Revolution, by the nature of the warfare carried on within her limits; left at the peace to contend with a large, powerful, and cruel tribe of Indians, that pressed upon her western settlements; and having her southern frontier bordering upon the unfriendly territory of a Spanish colony,--the State of Georgia had strong motives to lead her to embrace the Constitution of the United States, and found little in that instrument calculated to draw her in the opposite direction. Her delegates had resisted the surrender of control over the slave-trade, but they had acquiesced in the compromise on that subject, and there was in truth nothing in the position in which it was left that was likely to give the State serious dissatisfaction or uneasiness. The people of Georgia had something more important to do than to quarrel with their representatives about the principles or details of the system to which they had consented in the national Convention. They felt the want of a general government able to resist, with a stronger hand than that of the Confederation, the evils which pressed upon them.[417] Their assent was unanimously given to the Constitution on the 2d of January, 1788. The legislature of Connecticut had ordered a convention to be held on the 4th of January. When the elections were over, it was ascertained that there was a large majority in favor of the Constitution; but there was to be some opposition, proceeding principally from that portion of the people who resisted whatever tended to the vigor and stability of government,--a spirit that existed to some extent in all the New England States. When the convention of the State assembled, the principal duty of advocating the adoption of the Constitution devolved on Oliver Ellsworth, who had borne an active and distinguished part in its preparation. He found that the topic which formed the chief subject of all the arguments against the Constitution, was the general power of taxation which it would confer on the national government, and the particular power of laying imposts. Mr. Ellsworth was eminently qualified to explain and defend the proposed revenue system. While he contended for the necessity of giving to Congress a general power to levy direct taxes, in order that the government might be able to meet extraordinary emergencies, and thus be placed upon an equality with other governments, he demonstrated by public and well-known facts that an indirect revenue, to be derived from imposts, would be at once the easiest and most reliable mode of defraying the ordinary expenses of the government, because it would interfere less than any other form of taxation with the internal police of the States; and he argued, from sufficient data, that a very small rate of duty would be enough for this purpose.[418] Under his influence and that of Oliver Wolcott, Richard Law, and Governor Huntington, the Constitution was ratified by a large majority, on the 9th of January.[419] The action of Connecticut completed the list of the States that ratified the Constitution without any formal record of objections, and without proposing or insisting upon amendments. The opposition in these five States had been overcome by reason and argument, and they were a majority of the whole number of States whose accession was necessary to the establishment of the government. But a new act in the drama was to open with the new year. The conventions of Massachusetts, New York, and Virginia were still to meet, and each of them was full of elements of opposition of the most formidable character, and of different kinds, which made the result in all of them extremely doubtful. If all the three were to adopt the Constitution, still one more must be gained from the States of New Hampshire, Maryland, and North and South Carolina. The influence of each accession to the Constitution on the remaining States might be expected to be considerable; but, unfortunately, the convention of New Hampshire was to meet five months before those of Virginia and New York, and a large number of its members had been instructed to reject the Constitution. If New Hampshire and Massachusetts were to refuse their assent in the course of the winter, the States that were to act in the spring could scarcely be expected to withstand the untoward influence of such an example, which would probably operate with a constantly accelerating force throughout the whole number of the remaining States. The convention of Massachusetts commenced its session on the 9th of January, the same day on which that of Connecticut closed its proceedings. The State certainly held a very high rank in the Union. Her Revolutionary history was filled with glory; with sufferings cheerfully borne; with examples of patriotism that were to give her enduring fame. The blood of martyrs in that cause, which she had made from the first the cause of the whole country, had been poured profusely upon her soil, and in the earlier councils of the Union she had maintained a position of commanding influence. But there had been in her political conduct, since the freedom of the country was achieved, an unsteadiness and vacillation of which her former reputation gave no presage. In 1783, the legislature had refused to give the revenue powers asked for by the Congress, for the miserable reason that the Congress had granted half-pay for life to the officers of the Revolutionary army. In May, 1785, the legislature adopted a resolution for a convention of the States to consider the subject of enlarging the powers of the Federal Union, and in the following November they rescinded it. These, and other occurrences, when remembered, gave the friends of the Constitution elsewhere great anxiety, as they turned their eyes towards Massachusetts. They were fully aware, too, that the recent insurrection in that State, and the severe measures which had followed it, had created divisions in society which it would be difficult, if not impossible, to heal. But it was not easy for the most intelligent men out of the State to appreciate fully all the causes that exposed the Constitution of the United States to a peculiar hazard in Massachusetts, and made it necessary to procure its ratification by a kind of compromise with the opposition for a scheme of amendments. In no State was the spirit of liberty more jealous and exacting. In the midst of the Revolution, and led by the men who had carried on the profound discussions which preceded it,--discussions in which the natural rights of mankind and the civil rights of British subjects were examined and displayed as they had never been before,--the people of Massachusetts had framed a State constitution, filled with the most impressive maxims and the most solemn securities with which public liberty has ever been invested. Not content to trust obvious truths to implication, they expressly declared that government is instituted for the happiness and welfare of the governed, and they fenced it round not only with the chief restrictions gained by their English ancestors, from Magna Charta down to the Revolution of 1688, but with many safeguards which had not descended to them from Runnymede or Westminster. It may be that an anxious student of politics, examining the early constitution of Massachusetts,--happily in its most important features yet unchanged,--would pronounce it unnecessarily careful of personal rights and too jealous for the interests of liberty. But no intelligent mind, thoughtful of the welfare of society, can now think that to have been an excess of wisdom which formed a constitution of republican government that has so well withstood the assaults of faction and the levelling tendencies of a levelling age, and has withstood them because, while it carefully guarded the liberties of the people, it secured those liberties by institutions which stand as bulwarks between the power of the many and the rights of the few. It may hereafter become necessary for me to consider what degree of importance justly belongs to the amendments which the State of Massachusetts, and to those which other States, so impressively insisted ought to be made to the Constitution of the United States. Without at present turning farther aside from the narrative of events, I content myself here with observing, that, whether the alleged defects in the Constitution were important or unimportant, a people educated as the people of Massachusetts had been would naturally regard some provisions as essential which they did not find in the plan presented to them. The general aspect of parties in Massachusetts, down to the time when the convention met, has been already considered. In the convention itself there was a majority originally opposed to the Constitution; and if a vote had been taken at any time before the proposition for amendments was brought forward, the Constitution would have been rejected. The opposition consisted of a full representation of the various parties and interests already described as existing among the people of the State who were unfriendly to it. One contemporary account gives as many as eighteen or twenty members, who had actually been out in what was called Shays's "army." Whether this enumeration was strictly correct or not, it is well known that the western counties of the State sent a large number of men whose sympathies were with that insurrection, who were friends of paper money and tender laws, and enemies of any system that would promote the security of debts. The members from the province of Maine had their own special objects to pursue. In addition to these were the honest and well-meaning doubters, who had examined the Constitution with care and objected to it from principle. The anticipated leader of this miscellaneous host was that celebrated and ardent patriot of the Revolution, Samuel Adams. With all his energy and his iron determination of character, however, he could be cautious when caution was expedient. He had read the Constitution, and all the principal publications respecting it which had then appeared, and down to the time of the meeting of the convention he had maintained a good deal of reserve. But it was known that he disapproved of it. This remarkable man--often called the American Cato--was far better fitted to rouse and direct the storms of revolution, than to reconstruct the political fabric after revolution had done its work. He had the passionate love of liberty, fertility of resource, and indomitable will, which are most needed in a truly great leader of a popular struggle with arbitrary power. But that struggle over, his usefulness in an emergency like the one in which Massachusetts was now placed was limited to the actual necessity for the intervention of an extreme devotion to the maxims and principles of popular freedom. He believed that there was such a necessity, and he acted always as he believed. But his influence, at this time, was by no means commensurate with his power and reputation at a former day, and he appears to have wisely avoided a direct contest with the large body of very able men who supported the Constitution. That body of men would certainly have been, in any assembly convened for such a purpose, an overmatch in debate for Samuel Adams; for they were the civilians Fisher Ames, Parsons, King, Sedgwick, Gorham, Dana, Gore, Bowdoin, and Sumner, the Revolutionary officers Heath, Lincoln, and Brooks, and several of the most distinguished clergymen in the State. The names of the members who acted on the same side with Mr. Adams, and were then regarded as leaders of the opposition, have reached posterity in no other connection.[420] But some of the elements of which that opposition was composed could not be controlled by any superiority in debate, and were, therefore, little in need of great powers of discussion or great wisdom in council. So far as their objections related to the powers to be conferred on the general government, or to the structure of the proposed system, they could be answered, and many of them could be, and were, convinced. But with respect to what they considered the defects of the Constitution, theoretical reasoning, however able, could have no influence over men whose minds were made up; and it became, as the reader will see, necessary to make an effort to gain a majority by some course of action which would involve the concession that the proposed system required amendment. There were great hazards attending this course, in reference to its effect on other States, although it was not impossible to procure by it the ratification of this convention. Notwithstanding all that had detracted from the former high standing of the State,--notwithstanding the easy explanation that might be given of the influence of her late internal disturbances upon her subsequent political affairs,--she was still Massachusetts; still she was the eldest of all the States but one,--still she held in the sacred places of her soil the bones of the first martyrs to liberty,--still she was renowned, as she has ever been, for her intelligence,--still she wore a name of more than ordinary consideration among her sisters of the Confederacy. If it should go forth to New York, to Virginia, to the Carolinas, that Massachusetts had pronounced the Constitution unfit for the acceptance of a free people, or had declared that public liberty could not be preserved under it without the addition of provisions which its framers had not made, the effect might be disastrous beyond all previous calculation. The legislature of New York, in session at the same time with the convention of Massachusetts, was much divided on the question of submitting the Constitution to a convention, and it was the opinion of careful observers that the result in either way in the latter State would involve that in the former. In Virginia the elections for their convention were soon to take place. In Pennsylvania the minority were becoming restless under their defeat, and were agitating plans which looked to the obstruction of the government when an attempt should be made to organize it. The convention of South Carolina was not to meet until May, and North Carolina stood in an extremely doubtful position. A great weight of responsibility rested therefore upon the convention of Massachusetts. Its proceedings commenced with a desultory debate upon the several parts of the instrument, which lasted until the 30th of January; the friends of the Constitution having carefully provided, by a vote at the outset, that no separate question should be taken. The discussion of the various objections having been exhausted, Parsons[421] moved that the instrument be assented to and ratified. One or two general speeches followed this motion, and then Hancock, the President of the convention, descended from the chair, and, with some conciliatory observations, laid before it a proposition for certain amendments. This step was not taken by him upon his own suggestion merely, although he was doubtless very willing to be the medium of a reconciliation between the contending parties. He was at that time Governor of the State, and had been placed in the chair of the convention, partly in deference to his official station and his personal eminence, and partly because he held a rather neutral position with respect to the Constitution. These circumstances, as well as his Revolutionary distinction, led the friends of the Constitution to seek his intervention; and his love of popularity and deference made the office of arbitrator exceedingly agreeable to him. The selection was a wise one, for Hancock had great influence with the classes of men composing the opposition, and he could not be suspected of any undue admiration of the system the adoption of which he was to recommend. He proceeded with characteristic caution. It does not appear, from what is preserved of the remarks with which he presented his amendments, whether he intended they should become a condition precedent to the ratification, or should be adopted as a recommendation subsequent to the assent of the convention to the Constitution then before it. He brought them forward, he said, to quiet the apprehensions and remove the doubts of gentlemen, relying on their candor to bear him witness that his wishes for a good constitution were sincere. But the form of ratification which he proposed contained a distinct and separate acceptance of the Constitution, and the amendments followed it, with a recommendation that they "be introduced into the said Constitution." Samuel Adams, with much commendation of the Governor's proposition, immediately affected to understand it as recommending conditional amendments, and advocated it in that sense. Other members of the opposition understood it in the opposite sense, and, fearing its effect, insisted that the convention had no power to propose amendments, and that there could be no probability that, if recommended to the attention of the first Congress that might sit under the Constitution, they would ever be adopted. Upon both of these points, the arguments of the other side were sufficient to convince a few of the more candid members of the opposition, and the Constitution was ratified on the 7th of February, by a majority of nineteen votes,[422] the ratification being followed by a recommendation of certain amendments, and an injunction addressed to the representatives of the State in Congress to insist at all times on their being considered and acted upon in the mode provided by the fifth article of the Constitution. The smallness of the majority in favor of the Constitution was in a great degree compensated by the immediate conduct of those who had opposed it. Many of them, before the final adjournment, expressed their determination, now that it had received the assent of a majority, to exert all their influence to induce the people to anticipate the blessings which its advocates expected from it. They acted in accordance with their professions; and those portions of the people whose sentiments they had represented exhibited generally the same candor and patriotism, and acquiesced at once in the result. This course of the opposition in Massachusetts was observed elsewhere, and largely contributed to give to the action of the State, in proposing amendments, a salutary influence in some quarters, which would otherwise have probably failed to attend it. The amendments proposed by the convention of Massachusetts were, as was claimed by those who advocated them, of a general, and not a local character; but they were at the same time highly characteristic of the State. They may be divided into three classes. One of them embraced that general declaration which was afterwards incorporated with the amendments to the Constitution, and which expressly reserved to the States or the people the powers not delegated to the United States. Another class of them comprehended certain restraints upon the powers granted to Congress by the Constitution, with respect to elections, direct taxes, the commercial power, the jurisdiction of the courts, and the power to consent to the holding of titles or offices conferred by foreign sovereigns. The third class contemplated the two great provisions of a presentment by a grand jury, for crimes by which an infamous or a capital punishment might be incurred, and trial by jury in civil actions at the common law between citizens of different States. The people of Boston, although in general strongly in favor of the Constitution, had carefully abstained from every attempt to influence the convention. But now that the ratification was carried, they determined to give to the event all the importance that belonged to it, by public ceremonies and festivities. On the 17th of February, there issued from the gates of Faneuil Hall an imposing procession of five thousand citizens, embracing all the trades of the town and its neighborhood, each with its appropriate decorations, emblems, and mottoes. In the centre of this long pageant, to mark the relation of everything around it to maritime commerce, and the relation of all to the new government, was borne the ship Federal Constitution, with full colors flying, and attended by the merchants, captains, and seamen of the port.[423] On the following day, the rejoicings were terminated by a public banquet, at which each of the States that had then adopted the Constitution was separately toasted, the minorities of Connecticut and Massachusetts were warmly praised for their frank and patriotic submission, and strong hopes were expressed of the State of New York. In this manner the Federalists of Massachusetts wisely sought to kindle the enthusiasm of the country, and to conciliate the opinion of the States which were still to act, in favor of the new Constitution. The influence of their course did not fail in some quarters. In the convention of New Hampshire, which assembled immediately after that of Massachusetts was adjourned, although there was a majority who, either bound by instructions or led by their own opinions, would have rejected the Constitution if required to vote upon it immediately, yet that same majority was composed chiefly of men willing to hear discussion, willing to be convinced, and likely to feel the influence of what had occurred in the leading State of New England. There was a body of Federalists in New Hampshire acting in concert with the leading men of that party in Massachusetts. They caused the same form of ratification and the same amendments which had been adopted in the latter State, with some additional ones, to be presented to their own convention.[424] The discussions changed the opinions of many of the members, but it was not deemed expedient to incur the hazard of a vote. The friends of the Constitution found it necessary to consent to an adjournment, in order that the instructed delegates might have an opportunity to lay before their constituents the information which they had themselves received, and of which the people in the more remote parts of the State were greatly in need. Unfortunately, however, for the course of things in other States, the occurrence of a general election in New Hampshire made it necessary to adjourn the convention until the middle of June. We have seen what was the effect of this proceeding in Virginia, where it was both misunderstood and misrepresented. But it saved the Constitution in New Hampshire. Six States only, therefore, had adopted the Constitution at the opening of the spring of 1788. The convention of Maryland assembled at Annapolis on the 21st of April. The convention of South Carolina was to follow in May, and the conventions of Virginia and New York were to meet in June. So critical was the period in which the people of Maryland were to act, that Washington considered that a postponement of their decision would cause the final defeat of the Constitution; for if, under the influence of such a postponement, following that of New Hampshire, South Carolina should reject it, its fate would turn on the determination of Virginia. The people of Maryland appear to have been fully aware of the importance of their course. They not only elected a large majority of delegates known to be in favor of the Constitution, but a majority of the counties instructed their members to ratify it as speedily as possible, and to do no other act. This settled determination not to consider amendments, and not to have the action of the State misinterpreted, or its influence lost, gave great dissatisfaction to the minority. Their efforts to introduce amendments were disposed of quite summarily. The majority would entertain no proposition but the single question of ratification, which was carried by sixty-three votes against eleven, on the 28th of April. On the first of May, there were public rejoicings and a procession of the trades, in Baltimore, followed by a banquet, a ball, and an illumination. In this procession, the miniature ship "Federalist," which was afterwards presented to General Washington, and long rode at anchor in the Potomac opposite Mount Vernon, was carried, as the type of commerce and the consummate production of American naval architecture.[425] The next day a packet sailed from the port of Baltimore for Charleston, carrying the news of the ratification by Maryland.[426] In how many days this "coaster" performed her voyage is not known; but it is a recorded, though now forgotten, fact among the events of this period, that on her return to Baltimore, where she arrived on Saturday the 31st of May, the same vessel brought back the welcome intelligence, that on the 23d of that month, "at five o'clock in the afternoon," the convention of South Carolina had ratified the Constitution of the United States. A salute of cannon on Federal Hill, in the neighborhood of Baltimore, spread the joyful news far down the waters of the Chesapeake to the shores of Virginia, and bold express riders placed it in Philadelphia before the following Monday evening. Such was the anxiety with which the friends of the Constitution in the centre of the Union watched the course of events in the remaining States. The accession of South Carolina was naturally regarded as very important. Her delegates in the national Convention had assumed what might be thought, at home and elsewhere, to be a great responsibility. They had taken a prominent part in the settlement of the compromises which became necessary between the Northern and the Southern States. They had consented to a full commercial power, to be exercised by a majority in both houses of Congress; to a power to extinguish the slave-trade in twenty years; and to a power of direct and indirect taxation, exports alone excepted. Would the people of South Carolina consider the provisions made for their peculiar demands as equivalents for what had been surrendered? Would they acquiesce in a system founded in the necessities for local sacrifices, standing as they did at the extremity of the interests involved in the Southern side of the adjustment? It is not probable that the people of South Carolina, at the time of their adoption of the Constitution, supposed that they had any solid reasons for dissatisfaction with such of its arrangements as in any way concerned the subject of slavery. A good deal was said, _ad captandum_, by the opponents of the Constitution, on these points, but it does not appear to have been said with much effect. No man who has ever been placed by the State of South Carolina in a public position, has been more true to her interests and rights than General Pinckney; and General Pinckney furnished to the people of the State--speaking from his place in the legislature on his return from the national Convention--what he considered, and they received, as a complete answer to all that was addressed to their local fears and prejudices, on these particular topics. When he had shown that, by the universal admission of the country, the Constitution had given to the general government no power to emancipate the slaves within the several States, and that it had secured a right which did not previously exist, of recovering those who might escape into other States; that the slave-trade would remain open for twenty years, a period that would suffice for the supply of all the labor of that kind which the State would require; and that the admission of the blacks into the basis of representation was a concession in favor of the State, of singular importance as well as novelty;--he had disposed of every ground of opposition relating to these points. And so the people of the State manifestly considered. But there was one part of the arrangements included in the Constitution, on which they appear to have thought that they had more reason to pause; and it is quite important that we should understand both the grounds of their doubt, and the grounds on which they yielded their assent to this part of the system. South Carolina was then, and was ever likely to be, a great exporting State. Some of her people feared that, if a full power to regulate commerce by the votes of a majority in the two houses of Congress were to be exercised in the passage of a navigation act, the Eastern States, in whose behalf they were asked to grant such a power, would not be able to furnish shipping enough to export the products of the planting States. This apprehension arose entirely from a want of information; which some of the friends of the Constitution supplied, while it was under discussion. They showed that, if all the exported products of Virginia, the Carolinas, and Georgia were obliged to be carried in American bottoms, the Eastern States were then able to furnish more than shipping enough for the purpose; and that this shipping must also compete with that of the Middle States. Still it remained true, that the grant of the commercial power would enable a majority in Congress to exclude foreign vessels from the carrying trade of the United States, and so far to enhance the freights on the products of South Carolina. What then were the motives which appear to have led the convention of that State to agree to this concession of the commercial power? It is evident from the discussions which took place in the legislature, and which had great influence in the subsequent convention, that the attention of the people of South Carolina was not confined to the particular terms and arrangements of the compromises which took place in the formation of the Constitution. They looked to the propriety, expediency, and justice of a general power to regulate commerce, apart from the compromise in which it was involved. They admitted the commercial distresses of the Northern States; they saw the policy of increasing the maritime strength of those States, in order to encourage the growth of a navy; and they considered it neither prudent, nor fit, to give the vessels of all foreign nations a right to enter American ports at pleasure, in peace and in war, and whatever might be the commercial legislation of those nations towards the United States. For these reasons, a large majority of the people of South Carolina were willing to make so much sacrifice, be it more or less, as was involved in the surrender to a majority in Congress of the power to regulate commerce.[427] Still, the Constitution was not ratified without a good deal of opposition on the part of a considerable minority. As the convention drew towards the close of its proceedings, an effort was made to carry an adjournment to the following autumn, in order to gain time for the anticipated rejection of the Constitution by Virginia. This motion probably stimulated the convention to act more decisively than they might otherwise have done, for it touched the pride of the State in the wrong direction. After a spirited discussion it was rejected by a majority of forty-six votes, and the Constitution was thereupon ratified by a majority of seventy-six. Several amendments were then adopted, to be presented to Congress for consideration, three of which were substantially the same with three of those proposed by Massachusetts.[428] On the 27th of May, there was a great procession of the trades, in Charleston, in honor of the accession of the State, in which the ship Federalist, drawn by eight white horses, was a conspicuous object, as it had been in the processions of other cities. FOOTNOTES: [411] See an account of him, _ante_, Vol. I. Book III. Chap. XIV. [412] This was a mistake. On the 12th of September, Messrs. Gerry and Mason moved for a committee to prepare a bill of rights, but the motion was lost by an equal division of the States. Elliot, V. 538. [413] Mr. McKean, although his residence was at Philadelphia, represented the lower counties of Delaware in Congress from 1774 to 1783. In 1777 he was made Chief Justice of Pennsylvania, being at the same time a member of Congress and President of the State of Delaware. [414] The Constitution was ratified by a vote of 46 to 23. [415] This was at a meeting held at Harrisburg, September 3d, 1788. [416] The opposite parties were so much excited against each other, and the course of New Jersey was viewed with so much interest at Philadelphia among the "Federalists," that a story found currency and belief there, to the effect that Clinton, the Governor of New York, had offered the State of New Jersey, through one of its influential citizens, one half of the impost revenue of New York, if she would reject the Constitution. The preposterous character of such a proposition stamps the rumor with gross improbability. But its circulation evinces the anxiety with which the course of New Jersey was regarded in the neighboring States, and it is certain that the opposition in New York made great efforts to influence it. [417] The situation of Georgia was brought to the notice of Washington immediately after his first inauguration as President of the United States, in an Address presented to him by the legislature of the State, in which they set forth two prominent subjects on which they looked for protection to "the influence and power of the Union." One of these was the exposure of their frontier to the ravages of the Creek Indians. The other was the escape of their slaves into Florida, whence they had never been able to reclaim them. Both of these matters received the early attention of Washington's administration. [418] He stated the annual expenditure of the government, including the interest on the foreign debt, at £260,000 (currency), and then showed that, in the three States of Massachusetts, New York, and Pennsylvania, £160,000 or £180,000 per annum had been raised by impost. [419] Fragments only of the debates in the convention of Connecticut are known to be preserved. They may be found in the second volume of Elliot's collection. [420] Three of them, Widgery, Thompson, and Nason, were from Maine; there was a Dr. Taylor from the county of Worcester, and a Mr. Bishop from the county of Bristol. These gentlemen carried on the greater part of the discussion against the Constitution. [421] Theophilus Parsons, afterwards the celebrated Chief Justice of Massachusetts. [422] Yeas, 187; nays, 168. [423] This was the first of a series of similar pageants, which took place in the other principal cities of the Union, in honor of the ratification of the Constitution. [424] The form of ratification and the amendments introduced by Hancock into the convention of Massachusetts were drawn by Theophilus Parsons. They were probably communicated to General Sullivan, the President of the New Hampshire convention, by his brother, James Sullivan, an eminent lawyer of Boston, afterwards Governor of Massachusetts. The reader should compare the Massachusetts amendments with those of the other States whose action followed that of Massachusetts, for the purpose of seeing the influence which they exerted. (All the amendments may be found in the Journals of the Old Congress, Vol. XIII., Appendix.) See also _post_, Chap. III., as to the effect of the course of Massachusetts on the mind of Jefferson. [425] This little vessel sailed from Baltimore on the 1st of June, and arrived at Mount Vernon, "completely rigged and highly ornamented," on the 8th. It was a fine specimen of the then state of the mechanic arts. See an account of it in Washington's Works, IX. 375, 376. [426] There was then no land communication between the two places, that could have carried intelligence in less than a month. A letter written by General Pinckney to General Washington on the 24th of May, announcing the result in South Carolina, was more than four weeks on its way to Mount Vernon. (Washington's Works, IX. 389.) General Washington had received the same news by way of Baltimore soon after its arrival there. [427] See the course of argument of Edward Rutledge, General Pinckney, Robert Barnwell, Commodore Gillon, and others, as given in Elliot, IV. 253-316. [428] See the Amendments, Journals of the Old Congress, Vol. XIII., Appendix. CHAPTER III RATIFICATIONS OF NEW HAMPSHIRE, VIRGINIA, AND NEW YORK, WITH PROPOSED AMENDMENTS. South Carolina was the eighth State that had ratified the Constitution, and one other only was required for its inauguration. In this posture of affairs the month of May in the year 1788 was closed. An intense interest was to be concentrated into the next two months, which were to decide the question whether the Constitution was ever to be put into operation. The convention of Virginia was to meet on the 2d, and that of New York on the 17th, of June; the convention of New Hampshire stood adjourned to the 18th of the same month. The latter assembly was to meet at Concord, from which place intelligence would reach the Middle and Southern States through Boston and the city of New York. The town of Poughkeepsie, where the convention of New York was to sit, lay about midway between the cities of Albany and New York, on the east bank of the Hudson. The land route from the city of New York to Richmond, where the convention of Virginia was to meet, was of course through the city of Philadelphia. The distance from Concord to Poughkeepsie, through Boston, Springfield, and Hudson, was about two hundred and fifty miles. The distance from Poughkeepsie to Richmond, through the cities of New York, Philadelphia, and Baltimore, was about four hundred and fifty miles. The public mails, over any part of these distances, were not carried at a rate of more than fifty miles for each day, and over a large part of them they could not have been carried so fast. The information needed at such a crisis could not wait the slow progress of the public conveyances. No one could tell how long the conventions of New York and Virginia might be occupied with the momentous question that was to come before them. It was evident, however, that there was to be a great struggle in both of them, and it was extremely important that intelligence of the final action of New Hampshire should be received in both at the earliest practicable moment. For, whatever might be the weight due to the example of New Hampshire under other circumstances, if, before the conventions of New York and Virginia had decided, it should appear that nine States had ratified the Constitution, the course of those bodies might be materially influenced by a fact of so much consequence to the future position of the Union, and to the relations in which those two States were to stand to the new government. It was equally important, too, that whatever might occur in the conventions of New York and Virginia should be known respectively in each of them, as speedily as possible. About the middle of May, therefore, Hamilton arranged with Madison for the transmission of letters between Richmond and Poughkeepsie, by horse expresses; and by the 12th of June he had made a similar arrangement with Rufus King, General Knox, and other Federalists at the East, for the conveyance from Concord to Poughkeepsie of intelligence concerning the result in New Hampshire. A very full convention of delegates of the people of Virginia assembled at Richmond on the 2d of June, embracing nearly all the most eminent public men of the State, except Washington and Jefferson. All parties felt the weight of responsibility resting upon the State. Every State that had hitherto acted finally on the subject had ratified the Constitution; in three of them it had been adopted unanimously; in several of the others it had been sanctioned by large majorities; and in those in which amendments had been proposed, they had not been made conditions precedent to the adoption. So far, therefore, as the voice of any State had pronounced the Constitution defective, or dangerous to any general or particular interest, the mode of amendment provided by it, to be employed after it had gone into operation, had been relied upon as sufficient and safe. The opposition in Virginia were consequently reduced to this dilemma;--they must either take the responsibility of rejecting the Constitution entirely, or they must assume the equally hazardous responsibility of insisting that the ratification of the State should be given only upon the condition of previous amendments. They were prepared to do both, or either, according to the prospects of success; for their convictions were fixed against the system proposed; their abilities, patriotism, courage, and personal influence were of a high order; and their devotion to what they deemed the interests of Virginia was unquestionable. They were led, as I have already said they were to be, by Patrick Henry, whose reputation had suffered no abatement since the period when he blazed into the darkened skies of the Revolution,--when his untutored eloquence electrified the heart of Virginia, and became, as has been well said, even "a cause of the national independence."[429] He had held the highest honors of the State, but had retired, poor, and worn down by twenty years of public service, to rescue his private affairs by the practice of a profession which, in some of its duties, he did not love, and for which he had, perhaps, a single qualification in his amazing oratorical powers. His popularity in Virginia was unbounded. It was the popularity that attends genius, when thrown with heart and soul, and with every impulse of its being, into the cause of popular freedom; and it was a popularity in which reverence for the stern independence and the self-sacrificing spirit of the patriot was mingled with admiration for the splendid gifts of oratory which Nature, and Nature alone, had bestowed upon him. But Mr. Henry was rightly appreciated by his contemporaries. They knew that, though a wise man, his wisdom lacked comprehensiveness, and that the mere intensity with which he regarded the ends of public liberty was likely to mislead his judgment as to the means by which it was to be secured and upheld. The chief apprehension of his opponents, on this important occasion, was lest the power of his eloquence over the feelings or prejudices of his auditory might lead the sober reflections of men astray. He was at this time fifty-two years of age. Although feeling or affecting to feel himself an old and broken man, he was yet undoubtedly master of all his natural powers. Those powers he exerted to the utmost, to defeat the Constitution in the convention of Virginia. He employed every art of his peculiar rhetoric, every resource of invective, of sarcasm, of appeal to the fears of his audience for liberty; every dictate of local prejudice and State pride. But he employed them all with the most sincere conviction that the adoption of the proposed Constitution would be a wrong and dangerous step. Nor is it surprising that he should have so regarded it. He had formed to himself an ideal image which he was fond of describing as the American spirit. This national spirit of liberty, erring perhaps at times, but in the main true to right and justice as well as to freedom, was with him a kind of guardian angel of the republic. He seems to have considered it able to correct its own errors without the aid of any powerful system of general government,--capable of accomplishing in peace all that it had unquestionably effected for the country in war. As he passed out of the troubles and triumphs of the Revolution into the calmer atmosphere of the Confederation, his reliance on this American spirit, and his jealousy for the maxims of public liberty, led him to regard that system as perfect, because it had no direct legislative authority. He could not endure the thought of a government, external to that of Virginia, and yet possessed of the power of direct taxation over the people of the State. He regarded with utter abhorrence the idea of laws binding the people of Virginia by the authority of the people of the United States; and thinking that he saw in the Constitution a purely national and consolidated government, and refusing to see the federal principle which its advocates declared was incorporated in its system of representation, he shut his eyes resolutely upon all the evils and defects of the Confederation, and denounced the new plan as a monstrous departure from the only safe construction of a Union. He belonged, too, to that school of public men--some of whose principles in this respect it is vain to question--who considered a Bill of Rights essential in every republican government that is clothed with powers of direct legislation. On the first day of the session, at the instance of Mr. Mason, the convention determined not to take a vote upon any question until the whole Constitution had been debated by paragraphs; but the discussions in fact ranged over the whole instrument without any restriction. The opposition was opened by Henry, in a powerful speech of a general nature, in which he demanded the reasons for such a radical change in the character of the general government. That the new plan was a consolidated government, and not a confederacy, he held to be indisputable. The language of the preamble, which said _We, the People_, and not _We, the States_, made this perfectly clear. But States were the characteristics and the soul of a confederation. If States were not to be the agents of this new compact, it must be one great, consolidated, national government of the people of all the States. This perilous innovation, altogether beyond the powers of the Convention which had proposed it, had given rise to differences of opinion which had gone to inflammatory resentments in different parts of the country. He denied altogether the existence of any necessity for exposing the public peace to such a hazard. As soon as Henry had sat down, the Governor, Edmund Randolph, rose, to place himself in a position of some apparent inconsistency. He had, as we have seen, refused to sign the Constitution. On his return to Virginia, he had addressed a long, exculpatory letter to the Speaker of the House of Delegates, giving his reasons for this refusal; which were, in substance, that he considered the Constitution required important amendments, and that, as it would go to the conventions of the States to be accepted or rejected as a whole, without power to amend, he thought that his signature would preclude him from proposing the changes and additions which he deemed essential. This letter had attracted much attention both in and out of Virginia, and Randolph was consequently, up to this moment, regarded as a firm opponent of the Constitution. He chose, however, to incur the charge of that kind of inconsistency which a statesman should never hesitate to commit, when he finds that the public good is no longer consistent with his adherence to a former opinion. He declared that the day of previous amendments had passed. The ratification of the Constitution by eight States had placed Virginia and the country in a critical position. If the Constitution should not be adopted by the number of States required to put it into operation, there could be no Union; and if it were to be ratified by that number, and Virginia were to reject it, she would have at least two States at the south of her which would belong to a confederacy of which she would not be a member. He should, therefore, vote for the unconditional adoption of the Constitution, looking to future amendments, although he had little expectation that they would be made. This announcement took the opposition by surprise. But they relaxed none of their efforts. They subjected every part of the Constitution to a rigid scrutiny, and to the most subtle course of reasoning, as well as to one which addressed the prejudices of the common mind. Some of the most important only of the topics on which they enlarged can be noticed here. Their first and chief object was to show that the Constitution presented a national and consolidated government, in the place of the Confederation, and that under such a government the liberties of the people of the States could not be secure. This character of the proposed government Mr. Mason deduced from the power of direct taxation, which, he contended, entirely changed the confederacy into one consolidated government. This power, being at discretion and unrestrained, must carry everything before it. The general government being paramount to, and in every respect more powerful than, the State governments, the latter must give way; for two concurrent powers of direct taxation cannot long exist together. Assuming that taxes were to be levied for the use of the general government, the mode in which they were to be assessed and collected was of the utmost consequence, and it ought not to be surrendered by the people of Virginia to those who had neither a knowledge of their situation nor a common interest with them. He would cheerfully acquiesce in giving an effectual alternative for the power of direct taxation. He would give the general government power to demand their quotas of the States, with an alternative of laying direct taxes in case of non-compliance. The certainty of this conditional power would, in all probability, prevent the application of it, and the sums necessary for the Union would then be raised by the States, and by those who would best know how they could be raised. Mr. Henry took a broader ground. He argued that the Constitution presented a consolidated government, because it spoke in the name of the People, and not in the name of the States. It was neither a monarchy like England,--a compact between prince and people, with checks on the former to secure the liberty of the latter; nor a confederacy like Holland,--an association of independent States, each retaining its individual sovereignty; nor yet a democracy, in which the people retain securely all their rights. It was an alarming transition from a confederacy to a consolidated government. It was a step as radical as that which separated us from Great Britain. The rights of conscience, trial by jury, liberty of the press, all immunities and franchises, all pretensions to human rights and privileges, were rendered insecure, if not lost, by such a transition. It was said that eight States had adopted it. He declared that, if twelve States and a half had adopted it, he would, with manly firmness, and in spite of an erring world, reject it. "You are not to inquire," said he, "how your trade may be increased, or how you are to become a great and prosperous people, but how your liberties may be secured";--and then, kindling with the old fire of his earlier days, and with the recollection of what he had done and suffered for the liberties of his country, he broke forth in one of his most indignant and impassioned moods.[430] Madison, always cool, clear, and sensible, answered these objections. He described the new government as having a mixed character. It would be in some respects federal, in others consolidated. The manner in which it was to be ratified established this double character. The parties to it were to be the people, but not the people as composing one great society, but the people as composing thirteen sovereignties. If it were a purely consolidated government, the assent of a majority of the people would be sufficient to establish it. But it was to be binding on the people of a State only by their own separate consent; and if adopted by the people of all the States, it would be a government established, not through the intervention of their legislatures, but by the people at large. In this respect, the distinction between the existing and the proposed governments was very material. The mode in which the Constitution was to be amended also displayed its mixed character. A majority of the States could not introduce amendments, nor yet were all the States required; three fourths of them must concur in alterations; and this constituted a departure from the federal idea. Again, the members of one branch of the legislature were to be chosen by the people of the States in proportion to their numbers; the members of the other were to be elected by the States in their equal and political capacities. Had the government been completely consolidated, the Senate would have been chosen in the same way as the House; had it been completely federal, the House would have been chosen in the same way as the Senate. Thus it was of a complex nature; and this complexity would be found to exclude the evils of absolute consolidation and the evils of a mere confederacy. Finally, if Virginia were separated from all the States, her power and authority would extend to all cases; in like manner, were all powers vested in the general government, it would be a consolidated government; but the powers of the general government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction. With respect to the powers proposed to be conferred on the new government, he conceived that the question was whether they were necessary. If they were, Virginia was reduced to the dilemma of either submitting to the inconvenience which the surrender of those powers might occasion, or of losing the Union. He then proceeded to show the necessity for the power of direct taxation; and in answer to the apprehended danger arising from this power united with the consolidated nature of the government,--thus giving it a tendency to destroy all subordinate or separate authority of the States,--he admitted that, if the general government were wholly independent of the governments of the States, usurpation might be expected to the fullest extent; but as it was not so independent, but derived its authority partly from those governments, and partly from the people,--the same source of power,--there was no danger that it would destroy the State governments. In this manner, extending to all the details of the Constitution, the discussion proceeded for nearly a week, the opposition aiming to show that at every point it exposed the liberties of the people to great hazards; Henry sustaining nearly the whole burden of the argument on that side, and fighting with great vigor against great odds.[431] At length, finding himself sorely pressed, he took advantage of an allusion made by his opponents to the debts due from the United States to France, to introduce the name of Jefferson. "I might," said he, "not from public authority, but from good information, tell you that his opinion is that you reject this government. His character and abilities are in the highest estimation; he is well acquainted in every respect with this country; equally so with the policy of the European nations. This illustrious citizen advises you to reject this government till it be amended. His sentiments coincide entirely with ours. His attachment to, and services done for, this country are well known. At a great distance from us, he remembers and studies our happiness. Living in splendor and dissipation, he thinks yet of Bills of Rights,--thinks of those little, despised things called _maxims_. Let us follow the sage advice of this common friend of our happiness."[432] At the time when Mr. Henry made this statement, he had seen a letter written by Mr. Jefferson from Paris, in the preceding February, which was much circulated among the opposition in Virginia, and in which Mr. Jefferson had expressed the hope that the first nine conventions might accept the Constitution, and the remaining four might refuse it, until a Declaration of Rights had been annexed to it.[433] Mr. Henry chose to construe this into an advice to _Virginia_ to reject the Constitution. But this use of Mr. Jefferson's opinion was not strictly justifiable, since Virginia, in the actual order of events, might be the ninth State to act; for the convention of New Hampshire was not to reassemble until nearly three weeks after the first meeting of that of Virginia, in which Mr. Henry was then speaking. The friends of the Constitution, therefore, became somewhat restive under this attempt to employ the influence of Jefferson against them. Without saying anything disrespectful of him, but, on the contrary, speaking of him in the highest terms of praise and honor, they complained of the impropriety of introducing his opinion,--saying that, if the opinions of important men not within that convention were to govern its deliberations, they could adduce a name at least equally great on their side;[434] and they then contended that Mr. Jefferson's letter did not admit of the application that had been given to it.[435] But the truth was, that the assertions of his opponents respecting New Hampshire, and the ambiguous form of Mr. Jefferson's opinion, gave Henry all the opportunity he wanted to employ that opinion for the purpose for which he introduced it. "You say," said he, "that you are absolutely certain New Hampshire will adopt this government. Then she will be the ninth State; and if Mr. Jefferson's advice is of any value, and this system requires amendments, we, who are to be one of the four remaining States, ought to reject it until amendments are obtained."[436] Notwithstanding the efforts of Madison to counteract this artifice, it gave the opposition great strength, because it enabled them to throw the whole weight of their arguments against the alleged defects and dangers of the Constitution into the scale of an absolute rejection. Mr. Jefferson's subsequent opinion, formed after he had received intelligence of the course of Massachusetts, had not then been received, and indeed did not reach this country until after the convention of Virginia had acted.[437] The opposition went on, therefore, with renewed vigor, to attack the Constitution in every part which they considered vulnerable. Among the topics on which they expended a great deal of force was that of the navigation of the Mississippi. They employed this subject for the purpose of influencing the votes of members who represented the interests of that part of Virginia which is now Kentucky. They first extorted from Madison, and other gentlemen, who had been in the Congress of the Confederation, a statement of the negotiations which had nearly resulted in a temporary surrender of the right in the Mississippi to Spain.[438] They then made use of the following argument. It had appeared, they said, from those transactions, that the Northern and Middle States, seven in number,[439] were in favor of bartering away this great interest for commercial privileges and advantages; that those States, particularly the Eastern ones, would be influenced further by a desire to suppress the growth of new States in the Western country, and to prevent the emigration of their own people thither, as a means of retaining the power of governing the Union; and that the surrender of the Mississippi could be made by treaty, under the Constitution, by the will of the President and the votes of ten Senators,[440] whereas, under the Confederation, it never could be done without the votes of nine States in Congress. It must be allowed that there had been much in the history of this matter on which harsh reflections could be made by both sections of the Union. But it was not correct to represent the Eastern and Middle States as animated by a desire to prevent the settlement of the Western country, or to say that they would be ready at any time to barter away the right in the Mississippi. Seven of the States had consented, in a time of war and of great peril, to the proposal of a temporary surrender of the right to Spain, just when it was supposed that negotiations between Spain and Great Britain might result in a coalition which would deprive us of the river for ever, and when it was thought that a temporary cession would fix the permanent right in our favor.[441] This was undoubtedly an error; but it was one from which the country had been saved, by the disputes which arose respecting the constitutional power of seven States to give instructions for a treaty, and by the prospect of a reconstruction of the general government.[442] Now, therefore, that an entirely new constitutional system had been prepared, the real question, in relation to this very important subject, was one of a twofold character. It involved, first, the moral probabilities respecting the wishes and policy of a majority of the States; and, secondly, a comparison of the means afforded by the Constitution for protecting the national right to the Mississippi, with those afforded by the Confederation,--assuming that any State or States might wish to surrender it. Upon this question Mr. Madison made an answer to the opposition, which shows how accurately he foresaw the relations between the western and the eastern portions of the Union, and how justly he estimated the future working of the Constitution with respect to the preservation of the Mississippi, or any other national right. If interest alone, he said, were to govern the Eastern States, they must derive greater advantage from holding the Mississippi than even the Southern States; for if the carrying trade were their natural province, it must depend mainly on agriculture for its support, and agriculture was to be the great employment of the Western country. But in addition to this security of local interest, the Constitution would make it necessary for two thirds of all the Senators present--and those present would represent all the States, if all attended to their duty--to concur in every treaty. The President, who would represent the people at large, must also concur. In the House of Representatives, the landed, rather than the commercial interest, would predominate; and the House of Representatives, although not to be directly concerned in the making of treaties, would have an important influence in the government. A weak system had produced the project of surrendering the Mississippi; a strong one would remove the inducement.[443] In the midst of these discussions, and while the opposition were making every effort to protract them until the 23d of June,--when the assembling of the legislature would afford a colorable pretext for an adjournment,--Colonel Oswald of Philadelphia arrived at Richmond, with letters from the Anti-Federalists of New York and Pennsylvania to the leaders of that party at Richmond, for the purpose of concerting a plan for the postponement of the decision of Virginia until after the meeting of the convention of New York. It was supposed that, if this could be effected, the opponents of the Constitution in New York would be able to make some overture to the opposition in Virginia, for the same course of action in both States. If this could not be brought about, it was considered by the opposition at Richmond that the chances of obtaining a vote for previous amendments would be materially increased by delay. The parties in their convention were nearly balanced, at this time. Mr. Madison estimated the Federal majority at not more than three or four votes, if indeed the Federalists had a majority, on the 17th of June, the day on which the convention of New York was to meet.[444] But we must now leave the convention of Virginia, and turn our eyes to the pleasant village on the banks of the Hudson, where the convention of New York was already assembling. Hamilton was there, and was its leading spirit. How vigilant and thoughtful he was, we know;--sometimes watching for the messenger who might descend the eastern hills with reports from New Hampshire,--sometimes turning to the South and listening for the footfall of his couriers from Virginia;--but always preparing to meet difficulties, always ready to contest every inch of ground, and never losing sight of the great end to be accomplished. The hours were slow and heavy to him. The lines of horse-expresses which he had so carefully adjusted, and at whose intersection he stood to collect the momentous intelligence they would bring him, were indeed a marvel of enterprise at that day; but how unlike were they to the metallic lines that now daily gather for us, from all the ends of the land and with the speed of lightning, minute notices of the most trivial or the most important events! Still, such as his apparatus was, it was all that could be had; and he awaited, alike with a firm patience and a faithful hope, for the decisive results. Even at this distance of time, we share the fluctuations of his anxious spirit, and our patriotism is quickened by our sympathy. Rarely, indeed, if ever, was there a statesman having more at stake in what he could not personally control, or greater cause for solicitude concerning the public weal of his own times or that of future ages, than Hamilton now had. His own prospects of usefulness, according to the principles which had long guided him, and the happiness or the misery of his country, were all, as he was deeply convinced, involved in what might happen within any hour of those few eventful days. The rejection of the Constitution by Virginia would, in all probability, cause its rejection by New York. Its rejection by those States would, as he sincerely believed, be followed by eventual disunion and civil war. But if the Constitution could be established, he could see the way open to the happiness and welfare of the whole Union; for although it was not in all respects the system that he would have preferred, he had shown, in the Federalist, how profoundly he understood its bearing upon the interests of the country, into what harmony he could bring its various provisions, and what powerful aid he could give in adjusting it into its delicate relations to the States. He had, too, already conceived the hope that its early administration might be undertaken by Washington; and with the government in the hands of Washington, Hamilton could foresee the success which to us is now historical. To say that Hamilton was ambitious, is to say that he was human; and he was by no means free from human imperfections. But his was the ambition of a great mind, regulated by principle, and made incapable, by the force and nature of his convictions, of seeking personal aggrandizement through any course of public policy of which those convictions were not the mainspring and the life. In no degree is the character of any other American statesman undervalued or disparaged, when I insist on the importance to all America, through all time, of Hamilton's public character and conduct in this respect. It was because his future opportunities for personal distinction and usefulness were now evidently at stake in the success of a system that would admit of the exercise of his great powers in the service of the country,--a system that would afford at once a field for their exercise and for the application of his political principles,--and because he could neither seek nor find distinction in a line of politics which tended to disunion,--that his position at this time is so interesting and important. As a citizen of New York, too, his position was personally critical. He had carried on a vigorous contest with the opponents of the Constitution in that State; he had encountered obloquy and misrepresentation and rancor,--perhaps he had provoked them. He had told the people of the State, for years, that they had listened to wrong counsels, when they had lent themselves to measures that retarded the growth of a national spirit and an efficient general government. The correctness of his judgment was now, therefore, openly and palpably in the issue. His public policy, with reference to the relations of the State to the Union, was now to stand, or to fall, with the Constitution proposed. When he entered the convention of the State, he was convinced that the Anti-Federalists were determined that New York should not become a member of the new Union, whatever might be done by the other States.[445] He had also received information, which led him to believe that the Governor, Clinton, had in conversation declared the Union unnecessary; but of this, if true, he could make no public use. His suspicions were certainly justified by the tendency of the arguments made use of by the opposition, during the few first days of the session; for it was the tendency of those arguments to maintain the idea that New York could very well stand alone, even if the Constitution should be established by nine States, she refusing to be one of them. With this view, they pressed the consideration under which they had all along acted, that the Confederation, if amended, would be sufficient for all the proper purposes of a general government; and their plan for such an amendment of the Confederation was, to provide that its requisitions for money should continue to be made as they had been, and that Congress should have the new power of compelling payment by force, when a State had refused to comply with a requisition. Hamilton answered this suggestion with great energy. It is inseparable, he said, from the disposition of bodies which have a constitutional power of resistance, to inquire into the merits of a law. This had ever been the case with the federal requisitions. In this examination, the States, unfurnished with the lights which directed the deliberations of the general government, and incapable of embracing the general interests of the Union, had almost uniformly weighed the requisitions by their own local interests, and had only executed them so far as answered their particular convenience or advantage. But if we have national objects to pursue, we must have national revenues. If requisitions are made and are not complied with, what is to be done? To coerce the States would be one of the maddest projects ever devised. No State would ever suffer itself to be used as the instrument of coercing another. A federal standing army, then, must enforce the requisitions, or the federal treasury would be left without supplies and the government without support. There could be no cure for this great evil, but to enable the national laws to operate on individuals, like the laws of the States. To take the old Confederation as the basis of a new system, and to trust the sword and the purse to a single assembly organized upon principles so defective,--giving it the full powers of taxation and the national forces,--would be to establish a despotism. These considerations showed clearly that a totally different government, with proper powers and proper checks and balances, must be established. The convention soon afterwards passed to an animated discussion on the system of representation proposed in the Constitution, and while an amendment relating to the Senate was pending, on the 24th of June, Hamilton received intelligence from the East, that on the 21st the convention of New Hampshire had ratified the Constitution. Up to this moment, the opposition, while disclaiming earnestly all wish to bring about a dissolution of the Union, or to prevent the establishment of some firm and efficient government, had still continued, in every form, to press a line of argument which tended to produce the rejection of the Constitution proposed; and it was evident that their opponents could throw upon them the responsibility of a dissolution of the Union only by a deduction from the tendency of their reasoning. But now that the Constitution had been adopted by the number of States which its provisions required for its establishment, the Federalists determined that the opposition should publicly meet the issue raised by the new aspect of affairs, which was to determine whether the State of New York should or should not place itself out of the pale of the new confederacy,--whether it should or should not stand in a hostile attitude towards the nine States which had thus signified their determination to institute a new government. Accordingly, on the next day, Chancellor Livingston formally announced in the convention the intelligence that had been received from New Hampshire, which, he said, had evidently changed the circumstances of the country and the ground of the present debate. He declared that the Confederation was now dissolved. Would they consider the situation of their country? However some might contemplate disunion without pain, or flatter themselves that some of the Southern States would form a league with them, he could not look without horror at the dangers to which any such confederacy would expose the State of New York. This dilemma embarrassed, but did not subdue, the opposition. They reiterated their denial of a purpose to produce a dissolution of the Union, doubtless with entire sincerity; but they continued the argument which was designed to show that the State ought not to adopt a system dangerous to liberty, under a fear of the situation in which it might be placed. Here, then, the reader should pause for a moment, in order to form a just appreciation of the course pursued by Hamilton, in this altered aspect of affairs, when nothing remained to be done but to get the State of New York, if possible, into the new Union. We have now the means of knowing precisely how he estimated the chances of succeeding in this effort. On the 27th, while the discussion was still going on, he wrote to Madison as follows: "There are some slight symptoms of relaxation in some of the leaders, which authorizes a gleam of hope, if you do well; but certainly I think not otherwise."[446] At the same time, we know that his latest news from Virginia was not encouraging.[447] How easy, then, perhaps natural, it would have been for him to have abandoned this "gleam of hope,"--to have turned his back upon the State and all its cabals,--to have left the Anti-Federalists to determine the fate of New York, and to have transferred himself to what was then the larger community, the great State of Pennsylvania, or to any of the other States which had adopted the Constitution! He must have been received anywhere with the consideration due to his high reputation, his abilities, his public services, and his acknowledged patriotism. He must have been regarded, in any State that had accepted the new government, as a person whose assistance was indispensable to its success; and so he would have been looked upon by the main body of the people throughout the new confederacy. He had no ties of office to bind him to the State of New York. He held one of her seats in the Congress of the Confederation, but that was a body which must soon cease to exist. His political opponents had an undoubted majority in the State. The social ties which had bound him to her soil could have been severed. He could have left her, therefore, to the counsels of his adversaries, and could have sought and found for himself a career of ambition in the new sphere that was open to receive him. That career would have tempted men of an inferior mould, and would have seen them yield to the temptation perhaps the more readily, because the conflicts that would have been inevitable between rival confederacies would have presented fresh fields for exertion and personal energy, new excitements and new adventures. It is, too, a mournfully interesting reflection, that if Hamilton had then cut himself free from the entanglements of the local politics of New York by a change of residence, he probably could never have been drawn into that miserable quarrel with the wretch who in after years planned his destruction, and who gained by it the execrable distinction of having taken the most important life that has ever fallen by the assassination of the duel, since its opportunities for murder have been known among men. But with whatever melancholy interest we may pursue such a suggestion of what Hamilton might have done, it needs but to be made, in order to show how far he stood above the reach of such a temptation. From his first entrance, in boyhood, into public life, his patriotism had comprehended nothing less than the whole of the United States. Whatever may be thought of his policy, either before or after the Constitution was established, no just man will deny its comprehensive nationality. He now saw that no partial confederacy of the States could be of any permanent value. He had no favorite theories involved in the Constitution, no peculiar experiments that he wished to try. He embraced it, because he believed in its capacity to unite the whole of the States, to concentrate and harmonize their interests, and to accomplish national objects of the utmost importance to their welfare. It could, without doubt, be inaugurated and put into operation without the concurrence of New York. But to leave that, or any other State near the geographical centre of the Union, out of the confederacy, would be to leave its sovereignty and rights exposed to perpetual collision with the new government. No public or private purpose could have induced Hamilton to abandon any effort that might prevent such a result. He still labored, therefore, with those who were associated with him, to procure an adoption of the Constitution by the State of New York; and we must bear in mind the vast importance of her action, and the difficulties with which he had to contend, that we may take a just view of the concessions to the opposition which he seems at one stage of the crisis to have been obliged to consider. But we must now leave him in the midst of the embarrassments by which he was surrounded, to follow his messenger, whom he instantly despatched, on the 24th, with letters to Madison at Richmond, announcing the news of the ratification by New Hampshire. The courier passed through the city of New York on the 25th, and reached Philadelphia on the 26th. The newspapers of the latter city immediately cried out, "The reign of anarchy is over," and the popular enthusiasm rose to the highest point. The courier passed on to the South; but the convention of Virginia had, in fact, ratified the Constitution before he arrived in Philadelphia. Thus, while New Hampshire, in the actual order of events, was the ninth State to adopt the Constitution, yet Virginia herself, so far as the members of her convention were informed, appeared at the time of their voting to be the ninth adopting State. It is certain that they acted without any real knowledge of what had taken place in New Hampshire, although there may have been random assertions of what nobody at Richmond could then have known.[448] The result was brought about in Virginia by the force of argument, and because the friends of the Constitution were at last able to reduce the issue to the single question of previous or subsequent, that is, of conditional or recommendatory, amendments. As the State appeared likely to be the ninth State to act, and they could insist that, if she rejected the Constitution, she must bear the responsibility of defeating the establishment of the new government,--a consequence which they could reasonably predict,--they had a high vantage-ground from which to address the reason and patriotism of the assembly. Henry and the other leaders of the opposition fought valiantly to the last. When the whole subject had been exhausted, the friends of the Constitution presented the propositions on which they were willing to rest the action of the State, and which declared, in substance, that the powers granted under the proposed Constitution are the gift of the people, and that every power not granted thereby remains with them, and at their will,--consequently that no right can be abridged, restrained, or modified by the general government or any of its departments, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States; that the Constitution ought, therefore, to be ratified, but that whatsoever amendments might be deemed necessary ought to be recommended to the consideration of the first Congress that should assemble under the Constitution, to be acted upon according to the mode prescribed therein. Mr. Henry, on the other hand, brought forward a counter project, by which he proposed to declare that, previous to the ratification of the Constitution, a Declaration of Rights, asserting and securing from encroachment the great principles of civil and religious liberty, and the inalienable rights of the people, together with amendments to the most exceptionable parts of the Constitution, ought to be referred by the convention of Virginia to the other States in the American confederacy for their consideration. The issue was thus distinctly made between previous or conditional and subsequent or unconditional amendments, and made in a form most favorable to the friends of the Constitution; for it enabled them to present so vigorously and vividly the consequences of suspending the inauguration of the new government until the other States could consider the amendments desired by Virginia, that they procured a rejection of Mr. Henry's resolution by a majority of eight, and a ratification of the Constitution by a majority of ten votes. A long list of amendments, together with a Bill of Rights, was then adopted, to be presented to Congress for its consideration.[449] The conduct of Mr. Henry, when he saw that the adoption of the Constitution was inevitable, was all that might have been expected from his patriotic and unselfish character. "If I shall be in the minority," he said, "I shall have those painful sensations which arise from a conviction of being overpowered in a good cause. Yet I will be a peaceable citizen. My head, my hand, and my heart shall be free to retrieve the loss of liberty, and remove the defects of this system in a constitutional way. I wish not to go to violence, but will wait with hopes that the spirit which predominated in the Revolution is not yet gone, nor the cause of those who are attached to the Revolution yet lost. I shall, therefore, patiently wait in expectation of seeing this government so changed as to be compatible with the safety, liberty, and happiness of the people."[450] This noble and disinterested patriot lived to find the Constitution all that he wished it to be, and to enroll himself, in the day of its first serious trial, among its most vigorous and earnest defenders. But some of the members of the opposition were not so discreet. Immediately after the adjournment of the convention, they prepared an address to the people, intended to produce an effort to prevent the inauguration of the new government by a combined arrangement among the legislatures of the several States. But this paper, which never saw the light, was rejected by their own party, and the opposition in Virginia subsided into a general acquiescence in the action of the convention.[451] The ratification of Virginia took place on the 25th of June; the news of this event was received and published in Philadelphia on the 2d of July. The press of the city was at once filled with rejoicings over the action of Virginia. She was the tenth pillar of the temple of liberty. She was Virginia,--eldest and foremost of the States,--land of statesmen whose Revolutionary services were as household words in all America,--birthplace and home of Washington! We need not wonder, when she had come so tardily, so cautiously, into the support of the Constitution, that men should have hailed her accession with enthusiasm. The people of Philadelphia had been for some time preparing a public demonstration, in honor of the adoption of the Constitution by nine States. Now that Virginia was added to the number, they determined that all possible magnificence and splendor should be given to this celebration, and they chose for it the anniversary day of the National Independence. A taste for allegory appears to have been quite prevalent among the people of the United States at this period. Accordingly, the Philadelphia procession of July 4, 1788, was filled with elaborate and emblematic representations. It was a long pageant of banners, of trades, and devices. A decorated car bore the Constitution framed as a banner and hung upon a staff. Then another decorated car carried the American flag and the flags of all friendly nations. Then followed the judges in their robes, and all the public bodies, preceding a grand federal edifice, which was carried on a carriage drawn by ten horses. On the floor of this edifice were seated, in chairs, ten gentlemen, representing the citizens of the United States at large, to whom the Federal Constitution had been committed before its ratification. When it arrived at "Union Green," they gave up their seats to ten others representing the ten States which had ratified the instrument. The federal ship, "The Union," came next, followed by all the trades, plying their various crafts upon elevated platforms, with their several emblems and mottoes, strongly expressing confidence in the protection that would be afforded under the Constitution to all the forms of American manufactures and mechanic arts. Ten vessels paraded on the Delaware, each with a broad white flag at its masthead, bearing the name of one of the ten States in gold letters; and, as if to combine the ideas both of the absence and the presence of the ten States, ten carrier-pigeons were let off from the printers' platform, each with a small package bearing "the ode of the day" to one of the ten rejoicing and sympathizing States. Thus did ingenuity and mechanical skill exert themselves in quaint devices and exhibitions, to portray, to personify, and to celebrate the vast social consequences of an event which had then no parallel in the history of any other country,--the free and voluntary adoption by the people of a written constitution of government framed by the agents and representatives of the people themselves. The carrier birds are not known to have literally performed their tasks, but as rapidly as horse and man could carry it, the news from Virginia pressed on to the North, and reached Hamilton at Poughkeepsie on the 8th of July. It found him still surrounded by the same difficulties that existed when he received the result of the convention of New Hampshire. The opposition had relaxed none of their efforts to prevent the adoption of the Constitution; they had only become somewhat divided respecting the method to be pursued for its defeat. Some of them were in favor of conditions precedent, or previous amendments; some, of conditions subsequent, or the proposal of amendments upon the condition that, if they should not be adopted within a certain time, the State should be at liberty to withdraw from the Union; and all of them were determined, in case the Constitution should be ratified, to carry constructive declarations of its meaning and powers as far as possible. Hamilton was conscious that the chief danger to which the Constitution itself was now exposed, was that a general concurrence in injudicious recommendations might seriously wound its power of taxation, by causing a recurrence, in some shape, to the system of requisitions. The danger to which the State of New York was exposed, was that it might not become a member of the new Union, in any form. The leading Federalists who were united with Hamilton in the effort to prevent such a disastrous issue of this convention were John Jay, the Chancellor Robert R. Livingston, and James Duane. A few days after the intelligence from New Hampshire was received, these gentlemen held a consultation as to the most effectual method of encountering the objections made to the general power of taxation that would be conferred by the Constitution upon the general government. The legislative history of the State, from 1780 to 1782, embraced a series of official acts and documents, showing that the State had been compelled to sustain a very large share of the burden of the Revolutionary war; that requisitions had been unable to call forth the resources of the country; and that, in the judgment of the State, officially and solemnly declared in 1782, and concurred in by those who now resisted the establishment of the Constitution, it was necessary that the Union should possess other sources of revenue. The Federalists now resolved that these documents be formally laid before the convention, and Hamilton undertook to bring them forward. On the 27th of June, he commenced the most elaborate and important of the speeches which he made in this assembly, for the purpose of showing that in the construction of a government the great objects to be attained are a free and pure representation, and a proper balance between the different branches of administration; and that when these are obtained, all the powers necessary to answer, in the most ample manner, the purposes of government, may be bestowed with entire safety. He proceeded to argue, not only that a general power of taxation was essential, but that, under a system so complex as that of the Constitution,--so skilfully endowed with the requisite forms of representation and division of executive and legislative power,--it was next to impossible that this authority should be abused. In the course of this speech, and for the purpose of showing that the State had suffered great distresses during the war from the mode of raising revenues by requisitions, he called for the reading at the clerk's table of a series of documents exhibiting this fact. Governor Clinton resisted their introduction, but they were read; and Hamilton and his friends then contended, that they proved beyond dispute that the State had once been in great peril for want of an energetic general government. This movement produced a warm altercation between the leading gentlemen on the opposite sides of the house. But while it threw a grave responsibility upon the opposition, it did not conquer them; and by the day on which the intelligence from Virginia arrived, they had heaped amendments upon the table on almost every clause and feature of the Constitution, some one or more of which it was highly probable they would succeed in making a condition of its acceptance. This critical situation of affairs led Hamilton to consider, for a short time, whether it might not be necessary to accede to a plan, by which the State should reserve the right to recede from the Union, in case its amendments should not have been decided upon, in one of the modes pointed out by the Constitution, within five or six years. He saw the objections to this course; and he was determined to leave no effort untried to bring the opposition to an unqualified ratification. But the danger of a rejection of the Constitution was extreme; and as a choice of evils, he thought that, if the State could in the first instance be received into the Union under such a reserved right to withdraw, succeeding events, by the adoption of all proper and necessary amendments, would make the reservation unimportant, because such amendments would satisfy the more reasonable part of the opposition, and would thus break up their party. But he determined not to incur the hazard of this step upon his own judgment alone, or that of any one else having a personal interest in the question; and accordingly, on the 12th of July, he despatched a letter to Madison, who was then attending in Congress at the city of New York, asking his opinion upon the possibility of receiving the State into the Union in this form.[452] Madison instantly replied, that, in his opinion, this would be a conditional ratification, and would not make the State of New York a member of the new Union; that the Constitution required an adoption _in toto_ and for ever; and that any condition must vitiate the ratification of any State.[453] Before this reply could have been received at Poughkeepsie, the Federalists had introduced their proposition for an unconditional ratification, and this was followed by that of the Anti-Federalists for a conditional one. The former was rejected by the convention on the 16th of July. The opposition then brought forward a new form of conditional ratification, with a Bill of Rights prefixed, and with amendments subjoined. After a long debate, the Federalists succeeded, on the 23d of July, in procuring a vote to change this proposition, so that, in place of the words "on condition," the people of the State would be made to declare that they assented to and ratified the Constitution "in full confidence" that, until a general convention should be called for proposing amendments, Congress would not exercise certain powers which the Constitution conferred upon them. This alteration was carried by thirty-one votes against twenty-seven. A list of amendments was then agreed upon, and a circular letter was adopted, to be sent to all the States, recommending a general convention; and on Saturday, the 26th of July, the ratification, as thus framed, with the Bill of Rights and the amendments, was carried by thirty affirmative against twenty-seven negative votes.[454] By this slender majority of her delegates, and under circumstances of extreme peril of an opposite decision, did the State of New York accept the Constitution of the United States, and become a member of the new government. The facts of the case, and the importance of her being brought into the new Union, afford a sufficient vindication of the course pursued by the Federalists in her convention. But it is necessary, before closing the history of these events, to consider a complaint that was made at the time, by some of the most zealous of their political associates in other quarters, and which touched the correctness of their motives in assenting to the circular letter demanding a general convention for the amendment of the Constitution. That there was danger lest another general convention might result in serious injury to the Constitution, perhaps in its overthrow, was a point on which there was probably no difference of opinion among the Federalists of that day. Washington regarded it in this light; and there is no reason to doubt that Hamilton and Jay, and many others of the friends of the Constitution, would have felt great anxiety about its result. But there were some members of the Federal party, in several of the States, who do not seem to have fully appreciated the importance of conceding to the opposition, at the time of the adoption of the Constitution, the use of any and every form of obtaining amendments which the Constitution itself recognized. This was true everywhere, where serious dissatisfaction existed, and it was especially true in the State of New York. It was impossible to procure a ratification in that State, without an equivalent concession; and if the Federal leaders in that convention assented to the proposal of a course of amending the Constitution for which the instrument itself provided, however ineligible it might be, their justification is to be found in the circumstances of their situation. Washington himself, when all was over, wrote to Mr. Jay as follows:--"Although I could scarcely conceive it possible, after ten States had adopted the Constitution, that New York, separated as it is from the others, and peculiarly divided in sentiments as it is, would withdraw from the Union, yet, considering the great majority which appeared to cling together in the convention, and the decided temper of the leaders, I did not, I confess, see how it was to be avoided. The exertion of those who were able to effect this great work must have been equally arduous and meritorious."[455] But others were not so just. The Federalists of the New York convention were complained of by some of their friends for having assented to the circular letter, for the purpose of procuring a ratification at any price, in order to secure the establishment of the new government at the city of New York. It was said that the State had better have remained out of the Union, than to have taken a course which would prove more injurious than her rejection would have done.[456] With respect to these complaints and the accompanying charge, it is only necessary to say, in the first place, that Hamilton and Jay and their associates believed that there was far less danger to be apprehended from a mere call for a second general convention, than from a rejection of the Constitution by the State of New York; and they had to choose between these alternatives. The result shows that they chose rightly; for the assembling of a general convention was superseded by the action of Congress upon the amendments proposed by the States. In the second place, the alleged motive did not exist. We now know that Hamilton certainly, and we may presume his friends also, did not expect or desire the new government to be more than temporarily placed at the city of New York. He himself saw the impolicy of establishing it permanently either at that place or at Philadelphia. He regarded its temporary establishment at the city of New York as the certain means of carrying it farther south, and of securing its final and permanent place somewhere upon the banks of the Delaware within the limits of New Jersey, or upon the banks of the Potomac within the limits of Virginia.[457] The people of the city of New York had waited long for the decision of their State convention. They had postponed several times their intended celebration in honor of the Constitution, which, as it was to be the last, they determined should be the most imposing of these ceremonies. When the day at length came, on the 5th of August, 1788, it saw a population whose mutual confidence and joy had absorbed every narrow and bigoted distinction in that noblest of all the passions that a people can exhibit,--love of country. It were a vain and invidious task to attempt to determine, from the contemporary descriptions, whether this display exceeded that of all the other cities in variety and extent. But there was one feature of it so striking, so creditable to the people of the city of New York, that it should not be passed over. It consisted in the honors they paid to Hamilton. He must have experienced on that day the best reward that a statesman can ever find; for there is no purer, no higher pleasure for a conscientious statesman, than to know, by demonstrations of public gratitude, that the humblest of the people for whose welfare he has labored appreciate and are thankful for his services. Public life is often represented, and often found, to be a thankless sphere, for men of the greatest capacity and the highest patriotism; and the accidents, the defeats, the changes, the party passions and obstructions of the political world, in a free government, frequently make it so. But mankind are neither deliberately heartless nor systematically unthankful; and it has sometimes happened, in popular governments, that statesmen of the first order of mind and character have, while living, received the most unequivocal proofs of feeling directly from the popular heart, while the sum total of their lives appears in history to be wanting in evidences of that personal success which is attained in a constant triumph over opponents. Such an expression of popular gratitude and sympathy it was now the fortune of Hamilton to receive. The people of the city did not stop to consider, on this occasion, whether he was entitled, in comparison with all the other public men in the United States, to be regarded as the chief author of the blessings which they now anticipated from the Constitution. And why should they? He was their fellow-citizen,--their own. They remembered the day when they saw him, a mere boy, training his artillerymen in their public park, for the coming battles of the Revolution. They remembered the youthful eloquence and the more than youthful power with which he encountered the pestilent and slavish doctrines of their Tories. They thought of his career in the army, when the extraordinary maturity, depth, and vigor of his genius, and his great accomplishments, supplied to Washington, in some of the most trying periods of his vast and prolonged responsibility, the assistance that Washington most needed. They recollected his career in Congress, when his comprehensive intellect was always alert, to bear the country forward to measures and ideas that would concentrate its powers and resources in some national system. They called to mind how he had kept their own State from wandering quite away into the paths of disunion,--how he had enlightened, invigorated, and purified public opinion by his wise and energetic counsels,--how he had led them to understand the true happiness and glory of their country,--how he had labored to bring about those events which had now produced the Constitution,--how he had shown to them the harmony and success that might be predicted of its operation, and had taught them to accept what was good, without petulantly demanding what individual opinion might claim as perfect. What was it to them, therefore, on this day of public rejoicing, that there might be in his policy more of consolidation than in the policy of others,--that he was said to have in his politics too much that was national and too little that was local,--that some had done as much as he in the actual construction of the system which they were now to celebrate? Such controversies might be for history, or for the contests of administration that were soon to arise. On this day, they were driven out of men's thoughts by the glow of that public enthusiasm which banishes the spirit of party, and touches and opens the inmost fountains of patriotism. Hamilton had rendered a series of great services to his country, which had culminated in the adoption of the Constitution by the State of New York; and they were now acknowledged from the very hearts of those who best knew his motives and best understood his character. The people themselves, divided into their respective trades, evidently undertook the demonstrations in his honor, and gave them an emphasis which they could have derived from no other source. They bore his image aloft upon banners. They placed the Constitution in his right hand, and the Confederation in his left. They depicted Fame, with her trumpet, crowning him with laurels. They emblazoned his name upon the miniature frigate, the federal ship of state. They anticipated the administration of the first President, by uniting on the national flag the figure of Washington and the figure of Hamilton.[458] All that ingenuity, all that affection, that popular pride and gratitude could do, to honor a public benefactor, was repeated again and again through the long line of five thousand citizens, of all orders and conditions, which stretched away from the shores of that beautiful bay, where ocean ascends into river and river is lost in ocean,--where Commerce then wore her holiday attire, to prefigure the magnificence and power which she was to derive from the Constitution of the United States. FOOTNOTES: [429] Notice of Henry, in the National Portrait Gallery of Distinguished Americans, Vol. II. Mr. Jefferson has said that Henry's power as a popular orator was greater than that of any man he had ever heard, and that Henry "appeared to speak as Homer wrote." (Jefferson's Works, I. 4.) [430] It is said in the newspapers of that period that Henry was on his legs in one speech for seven hours. I think it must have been the one from which I have made the abstract in the text. But he made a great many speeches, quite as earnest. [431] There has been, I am aware, a modern scepticism concerning Patrick Henry's abilities; but I cannot share it. He was not a man of much information, and he had no great breadth of mind. But he must have been, not only a very able debater, but a good parliamentary tactician. The manner in which he carried on the opposition to the Constitution in the convention of Virginia, for nearly a whole month, shows that he possessed other powers besides those of great natural eloquence. [432] Elliot, III. 152, Debates in the Virginia Convention. [433] Under date of February 7, 1788, Mr. Jefferson wrote from Paris, in a private letter to a gentleman in Virginia, as follows:--"I wish, with all my soul, that the nine first conventions may accept the new Constitution, because this will secure to us the good it contains, which I think great and important. But I equally wish that the four latest conventions, whichever they be, may refuse to accede to it till a Declaration of Rights be annexed. This would probably command the offer of such a Declaration, and thus give to the whole fabric, perhaps, as much perfection as any one of that kind ever had. By a Declaration of Rights, I mean one which shall stipulate freedom of religion, freedom of the press, freedom of commerce against monopolies, trial by juries in all cases, no suspensions of the _habeas corpus_, no standing armies. These are fetters against doing evil, which no honest government should decline. There is another strong feature in the new Constitution which I as strongly dislike. That is, the perpetual re-eligibility of the President. Of this, I expect no amendment at present, because I do not see that anybody has objected to it on your side the water. But it will be productive of cruel distress to our country, even in your day and mine. The importance to France and England to have our government in the hands of a friend or foe, will occasion their interference by money, and even by arms. Our President will be of much more consequence to them than a king of Poland. We must take care, however, that neither this nor any other objection to the new form produces a schism in our Union. That would be an incurable evil, because near friends falling out never reunite cordially; whereas, all of us going together, we shall be sure to cure the evils of our new Constitution before they do great harm." (Jefferson's Works, II. 355.) That Mr. Jefferson intended this letter should be used as it was in the convention of Virginia, is not probable; but it would seem from the care he took to state a plan of proceeding in the adoption of the Constitution, that he intended his suggestions should be known. His subsequent opinion will be found in a note below. [434] Alluding, evidently, to Washington. [435] See the speeches of Pendleton and Madison, in reply to Henry. Elliot, III. 304, 329. [436] Elliot, III. 314. [437] On the 27th of May, 1788, Mr. Jefferson wrote from Paris to Colonel Carrington, as follows:--"I learn with great pleasure the progress of the new Constitution. Indeed, I have presumed it would gain on the public mind, as I confess it has on my own. At first, though I saw that the great mass and groundwork was good, I disliked many appendages. Reflection and discussion have cleared off most of those. You have satisfied me as to the query I had put to you about the right of direct taxation. My first wish was that nine States would adopt it, and that the others might, by holding off, produce the necessary amendments. But the plan of Massachusetts is far preferable, and will, I hope, be followed by those who are yet to decide," &c. (Jefferson's Works, II. 404.) Colonel Carrington, the person to whom this letter was addressed, was a member of Congress, and received it at New York, about the 2d of July, when it was seen by Madison. (See a letter from Madison to E. Randolph of that date, among the Madison papers. Elliot, V. 573.) [438] See an account of this matter, _ante_, Vol. I. Book III. Chap. V. pp. 309-327. [439] They meant the four New England States and New York, Pennsylvania, and Maryland. New Jersey and Delaware were supposed to be with the four Southern States on this question. [440] Ten would be two thirds of the constitutional quorum of fourteen; so that the argument supposed only a quorum to be present. [441] See Mr. Madison's explanation in the convention of Virginia. Elliot, III. 346. [442] _Ante_, Book III. Chap. V., Vol. I. pp. 324-327. [443] Debates in the Virginia Convention, Elliot, III. 344-347. [444] He thought at this moment that if the Constitution should be lost, the Mississippi question would be the cause. The members from Kentucky were then generally hostile. (See a letter from Madison to Hamilton, of June 16th, Hamilton's Works, I. 457.) [445] See his correspondence with Madison, Works, I. pp. 450-469. [446] Works, I. 462. [447] See the latest letter which he had then received from Madison. Ibid. 461. [448] It has been supposed that this was not so, but that Hamilton's messenger arrived at Richmond before the final action of the Virginia convention, and so that the decision of New Hampshire had an important influence. I think this is clearly a mistake. I have traced the progress of the messenger in the newspapers of that time, and find his arrival at New York and Philadelphia chronicled as it is given in the text. The dates are therefore decisive. It appears also from Mr. Madison's correspondence with Hamilton, that he did not receive the despatch about New Hampshire until the 31st. (Hamilton's Works, I. 463.) The ratification passed the Virginia convention on the 25th, and that body was dissolved on the 27th. There is no trace in the Virginia debates of any authentic news from New Hampshire. On the contrary, it was assumed by one of the speakers, Mr. Innes, on the day of their ratification, that the Constitution then stood adopted by _eight_ States. (Elliot, III. 636.) [449] The form of ratification embraced the recitals given in the text respecting the powers of Congress. It was adopted by a vote of 89 to 79, on the 25th of June, 1788. I do not go into the particular consideration of the amendments proposed by several of the State conventions, because the present work is confined to the origin, the formation, and the adoption of the Constitution, and no State that ratified the instrument proposed by the national Convention made amendments a condition. The examination of the amendments proposed, therefore, belongs to the history of the Constitution subsequent to its inauguration. They may all be found in the Appendix to the thirteenth volume of the Journals of the Old Congress. [450] Debates in Virginia Convention, Elliot, III. 652. [451] Madison's letters to Hamilton, Works of Hamilton, I. 462, 463. [452] Letter to Madison, Works of Hamilton, I. 464. [453] Ibid. 465. [454] It was reported in the newspapers of that period that the Constitution was adopted in this convention by 30 yeas against 25 nays. But the official record gives the several votes as they are stated in the text; from which it appears that, on the critical question of a conditional or unconditional ratification, the majority was only 2. In truth, the ratification of New York barely escapes the objection of being a qualified one, if it does in fact escape it. [455] Works of Washington, IX. 408. [456] Madison's letter to Washington, August 24, 1788, Works of Washington, IX. 549. [457] See his letter to Governor Livingston of New Jersey, August 29, 1788, Works, I. 471. [458] Some of the most elaborate of these devices were borne by the "Block and Pump Makers" and the "Tallow-Chandlers." CHAPTER IV. ACTION OF NORTH CAROLINA AND RHODE ISLAND.--CONCLUSION. Thus had eleven States, at the end of July, 1788, unconditionally adopted the Constitution; five of them proposing amendments for the consideration of the first Congress that would assemble under it, and one of the five calling for a second general convention to act upon the amendments desired. Two other States, however, North Carolina and Rhode Island, still remained aloof. The legislature of North Carolina, in December, 1787, had ordered a State convention, which assembled July 21, 1788, five days before the convention of New York ratified the Constitution. In this body the Anti-Federalists obtained a large majority. They permitted the whole subject to be debated until the 2d of August; still it had been manifest from the first that they would not allow of an unconditional ratification. They knew what had been the result in New Hampshire and Virginia; but the decision of New York had, of course, not reached them. Their determination was not, however, to be affected by the certainty that the new government would be organized. Their purpose was not to enter the new Union, until the amendments which they desired had been obtained. They assumed that the Congress of the Confederation would not provide for the organization of the new government until another general convention had been held; or, if they did, that such a convention would be called by the new Congress;--and it appeared to them to be the most effectual mode of bringing about one or the other of these courses, to remain for the present in an independent position. The inconvenience and hazard attending such a position do not seem to have had much weight with them, when compared with what they regarded as the danger of an unconditional assent to the Constitution as it then stood. The Federalists contended strenuously for the course pursued by the other States which had proposed amendments, but they were overpowered by great numbers, and the convention was dissolved, after adopting a resolution declaring that a Bill of Rights, and certain amendments, ought to be laid before Congress and the convention that might be called for amending the Constitution, previous to its ratification by the State of North Carolina.[459] But in order, if possible, to place the State in a position to accede to the Constitution at some future time, and to participate fully in its benefits, they also declared, that, having thought proper neither to ratify nor to reject it, and as the new Congress would probably lay an impost on goods imported into the States which had adopted it, they recommended the legislature of North Carolina to lay a similar impost on goods imported into the State, and to appropriate the money arising from it to the use of Congress.[460] The elements which formed the opposition to the Constitution in other States received in Rhode Island an intense development and aggravation, from the peculiar spirit of the people, and from certain local causes, the history of which has never been fully written, and is now only to be gathered from scattered sources. Constitutional government was exposed to great perils, in that day, throughout the country, in consequence of the false notions of State sovereignty and of public liberty which prevailed everywhere. But it seemed as if all these causes of opposition and distrust had centred in Rhode Island, and had there found a theatre on which to exhibit themselves in their worst form. Fortunately, this theatre was so small and peculiar, as to make the display of these ideas extremely conspicuous. The Colony of Rhode Island was established upon the broadest principles of religious and civil freedom. Its early founders and rulers, flying from religious persecution in the other New England Colonies, had transmitted to their descendants a natural jealousy of other communities, and a high spirit of individual and public independence. In the progress of time, as not infrequently happens in such communities, the principles on which the State was founded were falsely interpreted and applied, until, in the minds of a large part of the people, they had come to mean a simple aversion to all but the most democratic form of government. No successful appeal to this hereditary feeling could be made during the early part of the Revolution, against the interests and influence of the confederacy, because the early and local effect of the Revolution in fact coincided with it. But when the Revolution was fairly accomplished, and the State had assumed its position of absolute sovereignty, what may be called the extreme _individualism_ of the people, and their old unfortunate relations with the rest of New England, made them singularly reluctant to part with any power to the confederated States. The manifestations of this feeling we have seen all along, from the first establishment of the Confederation down to the period at which we are now arrived. The local causes which gave to this tendency its utmost activity, at the time of the formation of the Constitution of the United States, were the following. First, there had existed in the State, for a considerable period, a despotic and well-organized party, known as the paper-money party. This faction had long controlled the legislation of the State, by furnishing the agricultural classes, in the shape of paper money, with the only circulating medium they had ever had in any large quantity; and they were determined to extinguish the debt of the State by this species of currency, which the legislature could, and did, depreciate at pleasure. Secondly, there existed, to a great and ludicrous extent, a constant antagonism between town and country,--between the agricultural and the mercantile or trading classes; and this hostility was especially violent and active between the people of the towns of Providence and Newport and the people of the surrounding and the more remote rural districts.[461] The paper-money question divided the inhabitants of the State in the same way. The loss of this circulation would deprive the agricultural classes of their sole currency. They kept their paper-money party, therefore, in a state of constant activity; and when the Constitution of the United States appeared, this was an organized and triumphant party, ready for any new contest. Finally, there prevailed among the country party a notion that the maritime advantages of the State ought in some way to be made use of, for obtaining better terms with the general government than could be had under the Constitution, and that by some such means funds could be obtained for paying their most urgent debts. If we may judge of the spirit and the acts of the majority of the people of Rhode Island, at this time, by the manner in which they were looked upon throughout the rest of the Union, no language of censure can be too strong to be applied to them. They were regarded and spoken of everywhere, among the Federalists, with contempt and abhorrence. Even the opposition in other States, in all their arguments against the Constitution, never ventured to defend the people of Rhode Island. Ridicule and scorn were heaped upon them from all quarters of the country, and ardent zealots of the Federal press urged the adoption of the advice which they said the Grand Seignior had given to the king of Spain, with respect to the refractory States of Holland, namely, to send his men with shovels and pickaxes, and throw them all into the sea. Such an undertaking, we may suppose, might have proved as difficult on this, as it would have been on the other side of the Atlantic. But however this might have been, it is probable that the natural effect of their conduct on the minds of men in other States, and the treatment they received, reacted upon the people of Rhode Island, and made them still more tenacious and persistent in their wrongful course. But we need not go out of the State itself, to find proof that a majority of its people were at this time violent, arbitrary, and unenlightened, both as to their true interests and as to the principles of public honesty. Determined to adhere to their paper-money system, they did not pause to consider and to discuss the great questions respecting the Constitution,--its bearing upon the welfare of the States,--its effect upon public liberty and social order,--the necessity for its amendment in certain particulars,--which led, in the conventions of the other States, to some of the most important debates that the subjects of government and free institutions have ever produced. Indeed, they resolved to stifle all such discussions at once; or, at any rate, to prevent them from being had in an assembly whose proceedings would be known to the world. When the General Assembly received the Constitution, at their session in October, 1787, they directed it to be published and circulated among the inhabitants of the State. In February, 1788, instead of calling a convention, they referred the adoption of the Constitution to the freemen in their several town meetings, for the purpose of having it rejected. There were at this time a little more than four thousand legal voters in the State. The Federalists, a small minority, indignant at the course of the legislature, generally withdrew from the meetings and refused to vote. The result was, that the people of the State appeared to be nearly unanimous in rejecting the Constitution.[462] The freemen of the towns of Providence and Newport, thereupon presented petitions to the General Assembly, complaining of the inconvenience of acting upon the proposed Constitution in meetings in which the people of the seaport towns and the people of the country could not hear and answer each other's arguments, or agree upon the amendments that it might be desirable to propose, and praying for a State convention. Their application was refused, and Rhode Island remained in this position, at the time when the question of organizing the new government came before the Congress of the Confederation, in July, 1788. Better counsels prevailed with her people, at a later period, and the same redeeming virtue and good sense were at length triumphant, which, in still more recent trials, have enabled her to overcome error, and party passion, and the false notions of liberty that have sometimes prevailed within her borders. As the stranger now traverses her little territory, in the journey of a day, and beholds her ample enjoyment of all civil and religious blessings,--her busy towns, her fruitful fields, her fair seat of learning, crowning her thriving capital, her free, happy, and prosperous people, her noble waters where she sits enthroned upon her lovely isles,--and remembers her ancient and her recent history, he cannot fail, in his prayer for her welfare, to breathe the hope that an escape from great social perils may be found for her and for all of us, in the future, as it has been in the past. But the attitudes taken by North Carolina and Rhode Island--although in truth quite different and taken from very different motives--placed the Union in a new crisis, involving the Constitution in great danger of being defeated, notwithstanding its adoption by more than nine States. Both of them were members of the existing confederacy; both had a right to vote on all questions coming before the Congress of that confederacy; and it was to this body that the national Convention itself had looked for the initiatory measures necessary to organize the new government under the Constitution. The question whether that government should be organized at all, was necessarily involved with the question as to the place where it should be directed to assemble and to exercise its functions. This latter topic had often been a source of dissension between the States; and there was much danger lest the votes of North Carolina and Rhode Island, in the Congress of the Confederation, by being united with the votes of States opposed to the selection of the place that might be named as the seat of the new government, might prevent the Constitution from being established at all. * * * * * But now, the pen that has thus traced these great events, and has sought to describe them in their true relations to the social welfare of the American people, must seek repose. How the Constitution was inaugurated,--by whom and upon what principles it was put into operation,--how and why it was amended or altered,--when and under what circumstances the two remaining States accepted its benefits,--what development and what direction it received from the generation of statesmen who made and established it,--belongs to the next epoch in our political history, the Administration of Washington. FOOTNOTES: [459] This resolution was adopted August 2, 1788, by 184 yeas to 84 nays. North Carolina Debates, Elliot, IV. 250, 251. [460] North Carolina Debates, Elliot, IV. 250, 251. [461] The march of the country people upon Providence, on the 4th of July, 1788, and the manner in which they compelled the inhabitants of the town to abandon their purpose of celebrating the adoption of the Constitution by nine States,--dictating even their toasts and salutes,--reads more like a page in Diedrich Knickerbocker's History of New York than like anything else. But it is a veracious as well as a most amusing story. (See Staples's Annals of Providence, pp. 329-335.) [462] There were 2,708 votes thrown against it, and 232 in its favor. This occurred in March, 1788. APPENDIX. NOTE ON THE AUTHORSHIP OF THE ORDINANCE OF 1787. (See page 344, _ante_.) When writing this volume, I prepared an elaborate note, for the purpose of proving that the Ordinance of 1787 was drawn up by Nathan Dane. The subsequent publication by Mr. Charles King, of New York, of an autograph letter of Mr. Dane's to his father, the Hon. Rufus King, written a few days after the passage of the Ordinance, put an end to all possibility of controversy on this subject, and made it unnecessary for me to burden my readers with a discussion of Mr. Dane's claim to be regarded as the author of that instrument. The following sentence in Mr. Dane's letter to Mr. King is decisive of the point which has sometimes been controverted:-- "When I drew the Ordinance, (which passed, a few words excepted, as I originally formed it,) I had no idea the States would agree to the sixth article, prohibiting slavery, as only Massachusetts, of the Eastern States, was present, and therefore omitted it in the draft; but finding the House favorably disposed on the subject, after we had completed the other parts, I moved the article, which was agreed to without opposition." FIRST DRAFT OF THE CONSTITUTION, AS REPORTED BY THE COMMITTEE OF DETAIL. MONDAY, _August 6_. _In Convention._--Mr. RUTLEDGE delivered in the report of the committee of detail, as follows,--a printed copy being at the same time furnished to each member:-- We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the government of ourselves and our posterity:-- ARTICLE I.--The style of the government shall be, "The United States of America." ART. II.--The government shall consist of supreme legislative, executive, and judicial powers. ART. III.--The legislative power shall be vested in a Congress, to consist of two separate and distinct bodies of men, a House of Representatives and a Senate; each of which shall in all cases have a negative on the other. The legislature shall meet on the first Monday in December in every year. ART. IV.--Sect. 1. The members of the House of Representatives shall be chosen, every second year, by the people of the several States comprehended within this Union. The qualifications of the electors shall be the same, from time to time, as those of the electors, in the several States, of the most numerous branch of their own legislatures. Sect. 2. Every member of the House of Representatives shall be of the age of twenty-five years at least; shall have been a citizen in the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen. Sect. 3. The House of Representatives shall, at its first formation, and until the number of citizens and inhabitants shall be taken in the manner hereinafter described, consist of sixty-five members, of whom three shall be chosen in New Hampshire, eight in Massachusetts, one in Rhode Island and Providence Plantations, five in Connecticut, six in New York, four in New Jersey, eight in Pennsylvania, one in Delaware, six in Maryland, ten in Virginia, five in North Carolina, five in South Carolina, and three in Georgia. Sect. 4. As the proportions of numbers in different States will alter from time to time; as some of the States may hereafter be divided; as others may be enlarged by addition of territory; as two or more States may be united; as new States will be erected within the limits of the United States,--the legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions hereinafter made, at the rate of one for every forty thousand. Sect. 5. All bills for raising or appropriating money, and for fixing the salaries of the officers of government, shall originate in the House of Representatives, and shall not be altered or amended by the Senate. No money shall be drawn from the public treasury, but in pursuance of appropriations that shall originate in the House of Representatives. Sect. 6. The House of Representatives shall have the sole power of impeachment. It shall choose its speaker and other officers. Sect. 7. Vacancies in the House of Representatives shall be supplied by writs of election from the executive authority of the State in the representation from which they shall happen. ART. V.--Sect. 1. The Senate of the United States shall be chosen by the legislatures of the several States. Each legislature shall choose two members. Vacancies may be supplied by the executive until the next meeting of the legislature. Each member shall have one vote. Sect. 2. The senators shall be chosen for six years; but immediately after the first election, they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two, and three. The seats of the members of the first class shall be vacated at the expiration of the second year; of the second class at the expiration of the fourth year; of the third class at the expiration of the sixth year; so that a third part of the members may be chosen every second year. Sect. 3. Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen. Sect. 4. The Senate shall choose its own President and other officers. ART. VI.--Sect. 1. The times, and places, and manner, of holding the elections of the members of each House, shall be prescribed by the legislature of each State; but their provisions concerning them may, at any time, be altered by the legislature of the United States. Sect. 2. The legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said legislature shall seem expedient. Sect. 3. In each House a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day. Sect. 4. Each House shall be the judge of the elections, returns, and qualifications of its own members. Sect. 5. Freedom of speech and debate in the legislature shall not be impeached or questioned in any court or place out of the legislature; and the members of each House shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it. Sect. 6. Each House may determine the rules of its proceedings; may punish its members for disorderly behavior; and may expel a member. Sect. 7. The House of Representatives, and the Senate when it shall be acting in a legislative capacity, shall keep a journal of their proceedings; and shall, from time to time, publish them; and the yeas and nays of the members of each House, on any question, shall, at the desire of one fifth part of the members present, be entered on the Journal. Sect. 8. Neither House, without the consent of the other, shall adjourn for more than three days, nor to any other place than that at which the two Houses are sitting. But this regulation shall not extend to the Senate when it shall exercise the powers mentioned in the ---- Article. Sect. 9. The members of each House shall be ineligible to, and incapable of holding, any office under the authority of the United States, during the time for which they shall respectively be elected; and the members of the Senate shall be ineligible to, and incapable of holding, any such office for one year afterwards. Sect. 10. The members of each House shall receive a compensation for their services, to be ascertained and paid by the State in which they shall be chosen. Sect. 11. The enacting style of the laws of the United States shall be, "Be it enacted, and it is hereby enacted, by the House of Representatives, and by the Senate of the United States, in Congress assembled." Sect. 12. Each House shall possess the right of originating bills, except in the cases before mentioned. Sect. 13. Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States for his revision. If, upon such revision, he approve of it, he shall signify his approbation by signing it. But if, upon such revision, it shall appear to him improper for being passed into a law, he shall return it, together with his objections against it, to that House in which it shall have originated; who shall enter the objections at large on their Journal, and proceed to reconsider the bill. But if, after such reconsideration, two thirds of that House shall, notwithstanding the objections of the President, agree to pass it, it shall, together with his objections, be sent to the other House, by which it shall likewise be reconsidered, and, if approved by two thirds of the other House also, it shall become a law. But, in all such cases, the votes of both Houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the Journal of each House respectively. If any bill shall not be returned by the President within seven days after it shall have been presented to him, it shall be a law, unless the legislature, by their adjournment, prevent its return, in which case it shall not be a law. ART. VII.--Sect. 1. The legislature of the United States shall have the power to lay and collect taxes, duties, imposts, and excises; To regulate commerce with foreign nations, and among the several states; To establish an uniform rule of naturalization throughout the United States; To coin money; To regulate the value of foreign coin; To fix the standard of weights and measures; To establish post-offices; To borrow money, and emit bills, on the credit of the United States; To appoint a treasurer by ballot; To constitute tribunals inferior to the supreme court; To make rules concerning captures on land and water; To declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations; To subdue a rebellion in any State on the application of its legislature; To make war; To raise armies; To build and equip fleets; To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions; And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof. Sect. 2. Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them. The legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted. Sect. 3. The proportions of direct taxation shall be regulated by the whole number of white and other free citizens and inhabitants of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description (except Indians not paying taxes); which number shall, within six years after the first meeting of the legislature, and within the term of every ten years afterwards, be taken in such a manner as the said legislature shall direct. Sect. 4. No tax or duty shall be laid by the legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited. Sect. 5. No capitation tax shall be laid, unless in proportion to the census hereinbefore directed to be taken. Sect. 6. No navigation act shall be passed without the assent of two thirds of the members present in each House. Sect. 7. The United States shall not grant any title of nobility. ART. VIII.--The acts of the legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the several States, and of their citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions, anything in the constitutions or laws of the several States to the contrary notwithstanding. ART. IX.--Sect. 1. The Senate of the United States shall have power to make treaties, and to appoint ambassadors, and judges of the supreme court. Sect. 2. In all disputes and controversies now subsisting, or that may hereafter subsist, between two or more States, respecting jurisdiction or territory, the Senate shall possess the following powers:--Whenever the legislature, or the executive authority, or lawful agent of any State, in controversy with another, shall, by memorial to the Senate, state the matter in question, and apply for a hearing, notice of such memorial and application shall be given, by order of the Senate, to the legislature, or the executive authority, of the other State in controversy. The Senate shall also assign a day for the appearance of the parties, by their agents, before that House. The agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question. But if the agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons, each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine, names, as the Senate shall direct, shall, in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges to hear and finally determine the controversy; provided a majority of the judges who shall hear the cause agree in the determination. If either party shall neglect to attend at the day assigned, without showing sufficient reasons for not attending, or being present shall refuse to strike, the Senate shall proceed to nominate three persons out of each State, and the Clerk of the Senate shall strike in behalf of the party absent or refusing. If any of the parties shall refuse to submit to the authority of such court, or shall not appear to prosecute or defend their claim or cause, the court shall nevertheless proceed to pronounce judgment. The judgment shall be final and conclusive. The proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public records, for the security of the parties concerned. Every commissioner shall, before he sit in judgment, take an oath, to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question, according to the best of his judgment, without favor, affection, or hope of reward." Sect. 3. All controversies concerning lands claimed under different grants of two or more States, whose jurisdictions, as they respect such lands, shall have been decided or adjusted subsequently to such grants, or any of them, shall, on application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different States. ART. X.--Sect. 1. The executive power of the United States shall be vested in a single person. His style shall be, "The President of the United States of America," and his title shall be, "His Excellency." He shall be elected by ballot by the legislature. He shall hold his office during the term of seven years; but shall not be elected a second time. Sect. 2. He shall, from time to time, give information to the legislature of the state of the Union. He may recommend to their consideration such measures as he shall judge necessary and expedient. He may convene them on extraordinary occasions. In case of disagreement between the two Houses, with regard to the time of adjournment, he may adjourn them to such time as he thinks proper. He shall take care that the laws of the United States be duly and faithfully executed. He shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution. He shall receive ambassadors, and may correspond with the supreme executives of the several States. He shall have power to grant reprieves and pardons, but his pardon shall not be pleadable in bar of an impeachment. He shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States. He shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during his continuance in office. Before he shall enter on the duties of his department, he shall take the following oath or affirmation, "I ---- solemnly swear (or affirm) that I will faithfully execute the office of President of the United States of America." He shall be removed from his office on impeachment by the House of Representatives, and conviction, in the supreme court, of treason, bribery, or corruption. In case of his removal, as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties until another President of the United States be chosen, or until the disability of the President be removed. ART. XI.--Sect. 1. The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as shall, when necessary, from time to time, be constituted by the legislature of the United States. Sect. 2. The judges of the supreme court, and of the inferior courts, shall hold their offices during good behavior. They shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. Sect. 3. The jurisdiction of the supreme court shall extend to all cases arising under laws passed by the legislature of the United States; to all cases affecting ambassadors, other public ministers and consuls; to the trial of impeachments of officers of the United States; to all cases of admiralty and maritime jurisdiction; to controversies between two or more States (except such as shall regard territory or jurisdiction); between a State and citizens of another State; between citizens of different States; and between a State, or the citizens thereof, and foreign states, citizens, or subjects. In cases of impeachment, cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, this jurisdiction shall be original. In all the other cases before mentioned, it shall be appellate, with such exceptions, and under such regulations, as the legislature shall make. The legislature may assign any part of the jurisdiction above mentioned, (except the trial of the President of the United States,) in the manner and under the limitations which it shall think proper, to such inferior courts as it shall constitute from time to time. Sect. 4. The trial of all criminal offences (except in cases of impeachment) shall be in the State where they shall be committed; and shall be by jury. Sect. 5. Judgment, in cases of impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit, under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law. ART. XII.--No State shall coin money; nor grant letters of marque and reprisal; nor enter into any treaty, alliance, or confederation; nor grant any title of nobility. ART. XIII.--No State, without the consent of the legislature of the United States, shall emit bills of credit, or make anything but specie a tender in payment of debts; nor lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another State, or with any foreign power; nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent as not to admit of a delay until the legislature of the United States can be consulted. ART. XIV.--The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. ART. XV.--Any person charged with treason, felony, or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence. ART. XVI.--Full faith shall be given in each State to the acts of the legislatures, and to the records and judicial proceedings of the courts and magistrates, of every other State. ART. XVII.--New States lawfully constituted or established within the limits of the United States may be admitted, by the legislature, into this government; but to such admission the consent of two thirds of the members present in each House shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the legislature may make conditions with the new States concerning the public debt which shall be then subsisting. ART. XVIII.--The United States shall guarantee to each State a republican form of government; and shall protect each State against foreign invasions, and, on the application of its legislature, against domestic violence. ART. XIX.--On the application of the legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the legislature of the United States shall call a convention for that purpose. ART. XX.--The members of the legislatures, and the executive and judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution. ART. XXI.--The ratification of the conventions of ---- States shall be sufficient for organizing this Constitution. ART. XXII.--This Constitution shall be laid before the United States in Congress assembled, for their approbation; and it is the opinion of this Convention, that it should be afterwards submitted to a convention chosen in each State, under the recommendation of its legislature, in order to receive the ratification of such convention. ART. XXIII.--To introduce this government, it is the opinion of this Convention, that each assenting convention should notify its assent and ratification to the United States in Congress assembled; that Congress, after receiving the assent and ratification of the conventions of ---- States, should appoint and publish a day, as early as may be, and appoint a place, for commencing proceedings under this Constitution; that, after such publication, the legislatures of the several States should elect members of the Senate, and direct the election of members of the House of Representatives; and that the members of the legislature should meet at the time and place assigned by Congress, and should, as soon as may be after their meeting, choose the President of the United States, and proceed to execute this Constitution. * * * * * CONSTITUTION OF THE UNITED STATES OF AMERICA.[463] We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America. ARTICLE. I. SECTION. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. SECTION. 2. {1} The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. {2} No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. {3} Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. {4} When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. {5} The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. SECTION. 3. {1} The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. {2} Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one-third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. {3} No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. {4} The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. {5} The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the office of President of the United States. {6} The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. {7} Judgment in Cases of Impeachment shall not extend further than to removal from Office, and Disqualification to hold and enjoy any Office of honour, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. SECTION. 4. {1} The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. {2} The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. SECTION. 5. {1} Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. {2} Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. {3} Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. {4} Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. SECTION. 6. {1} The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. {2} No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. SECTION. 7. {1} All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. {2} Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. {3} Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. SECTION. 8. The Congress shall have Power {1} To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; {2} To borrow Money on the credit of the United States; {3} To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; {4} To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; {5} To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; {6} To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; {7} To establish Post Offices and post Roads; {8} To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; {9} To constitute Tribunals inferior to the supreme Court; {10} To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; {11} To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; {12} To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; {13} To provide and maintain a Navy; {14} To make Rules for the Government and Regulation of the land and naval Forces; {15} To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; {16} To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; {17} To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings;--And {18} To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. SECTION. 9. {1} The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or Duty may be imposed on such Importation, not exceeding ten dollars for each Person. {2} The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. {3} No Bill of Attainder or ex post facto Law shall be passed. {4} No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. {5} No Tax or Duty shall be laid on Articles exported from any State. {6} No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. {7} No Money shall be drawn from the Treasury, but in consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. {8} No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. SECTION. 10. {1} No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. {2} No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. {3} No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of Delay. ARTICLE. II. SECTION. 1. {1} The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows {2} Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.[464] {3} The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. {4} No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. {5} In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. {6} The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. {7} Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-- "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." SECTION. 2. {1} The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. {2} He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. {3} The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. SECTION. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the officers of the United States. SECTION. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE III. SECTION. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. SECTION. 2. {1} The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers, and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. {2} In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. {3} The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. SECTION. 3. {1} Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. {2} The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE. IV. SECTION. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. SECTION. 2 {1} The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. {2} A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. {3} No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. SECTION. 3. {1} New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. {2} The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. SECTION. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLE. V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year one thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE. VI. {1} All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. {2} This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. {3} The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. ARTICLE. VII. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. DONE in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independance of the United States of America the Twelfth =In Witness= whereof We have hereunto subscribed our Names, G{o}: WASHINGTON-- _Presidt and Deputy from Virginia_ NEW HAMPSHIRE. JOHN LANGDON, NICHOLAS GILMAN. MASSACHUSETTS. NATHANIEL GORHAM, RUFUS KING. CONNECTICUT. WM. SAML. JOHNSON, ROGER SHERMAN. NEW YORK. ALEXANDER HAMILTON. NEW JERSEY. WIL: LIVINGSTON, DAVID BREARLEY, WM. PATERSON, JONA. DAYTON. PENNSYLVANIA. B. FRANKLIN, THOMAS MIFFLIN, ROBT. MORRIS, GEO: CLYMER, THO{S}. FITZ SIMONS, JARED INGERSOLL, JAMES WILSON, GOUV: MORRIS. DELAWARE. GEO: READ, GUNNING BEDFORD, jun. JOHN DICKINSON, RICHARD BASSETT. JACO: BROOM. MARYLAND. JAMES M'HENRY, DAN: OF ST. THOS. JENIFER, DANL. CARROLL. VIRGINIA. JOHN BLAIR, JAMES MADISON, JR. NORTH CAROLINA. WM. BLOUNT, RICH'D DOBBS SPAIGHT. HU. WILLIAMSON. SOUTH CAROLINA. J. RUTLEDGE, CHARLES COTESWORTH PINCKNEY, CHARLES PINCKNEY, PIERCE BUTLER. GEORGIA. WILLIAM FEW, ABR. BALDWIN. Attest: WILLIAM JACKSON, _Secretary_. FOOTNOTES: [463] This copy of the Constitution has been compared with the Rolls in the Department of State, and is punctuated and otherwise printed in exact conformity therewith. [464] Altered by the 12th Amendment. ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION.[465] (ARTICLE 1.) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (ARTICLE 2.) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (ARTICLE III.) No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. (ARTICLE IV.) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (ARTICLE V.) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (ARTICLE VI.) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have Compulsory process for obtaining Witnesses in his favour, and to have the Assistance of Counsel for his defence. (ARTICLE VII.) In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. (ARTICLE VIII.) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (ARTICLE IX.) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (ARTICLE X.) The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ARTICLE XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. ARTICLE XII. The Electors shall meet in their respective states, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. FOOTNOTE: [465] Although this work does not embrace the history of the Amendments, they are printed here in connection with the Constitution, for the convenience of the reader. INDEX. A. _Acquisition_, national spirit of, reflections on, II. 312. ADAMS, JOHN, delegate to first Continental Congress, I. 13. On Washington's appointment as commander-in-chief, 42. One of the committee to prepare Declaration of Independence, 50. His account of the Declaration, 82. First minister to Great Britain, 257. Answer to his complaints about the treaty, 257. Instructed to negotiate treaty with the Netherlands, 280. One of the commissioners to procure commercial treaties, 287. Views of, respecting taxation of slaves, II. 159. Practice of, respecting cabinet, 409. ADAMS, SAMUEL, delegate to first Continental Congress, I. 13. Reserve of, respecting Constitution, II. 533. Disapproves of Constitution, 533. Character of, 534. Position of, in convention of Massachusetts, 534. In favor of Hancock's amendments to Constitution, 538. ADAMS, captain in the Revolutionary naval force, I. 74. _Address_ of the Colonies to the people of Great Britain, I. 23. _Admiralty Jurisdiction_, criminal, II. 330. Of courts of United States, 445. Under Confederation, 445. _Adoption_ of Constitution, mode of, recommended, II. 372. _Albany_, convention of Colonies at, in 1753-54, I. 8. _Alexandria_, meeting of commissioners at, from Virginia and Maryland, I. 341. _Alexandria Commissioners_, visit General Washington, I. 425. Report of, received in Virginia legislature, 426. _Aliens_, rights to be conceded to, in certain treaties, I. 280. See _Foreigners_. _Allegiance_ of people of the Colonies, transferred, I. 52. _Alliance._ See _Treaty of Alliance_. _Ambassadors_, proposed appointment of, by Senate, II. 223, 410; by President, 234. Received by President, 415. To be nominated by President, 418. Jurisdiction of cases affecting, 444. _Amendment_ of Constitution, II. 84. Provision for, adopted without debate, 177. And revolution, distinction between, 473. _Amendments_ of Constitution, when to be proposed by Congress, II. 268. How to be proposed and adopted, 473. How ratified, 477. Power to make, limited, 477. States at liberty to propose, 486. Proposed by Hancock, 537; by Massachusetts, classified, 539; by South Carolina, 548; by Patrick Henry, 580; by Virginia, 581; by New York, 587, 588; by North Carolina, 597. Refused in Maryland convention, 543. Proposed, not made conditions of adoption, 551. _Amendments_ of Articles of Confederation, how made, II. 84, 473, 481. _America_, natural advantages of, for commercial pursuits, II. 309. Variety of climate and products of, 309. _American Constitutions_, character of, I. 261. _American Feeling_, Washington's efforts to create, I. 110. _American People_ perceive the insufficiency of State governments, I. 114. Early familiarity of, with the principles of government, 117. Perceive the necessity of a union, 121. See _People of America_. _American Revolution_, commencement of, I. 3. Attempt to alter charter governments, a principal cause of, 6. Found local legislatures in all the Colonies, 7. Fundamental principle established by, 379. Object and effects of, II. 196. Policy which led to, real cause of, 238. Effect of, on views of people of United States, relating to government, 238. _Annapolis_, general commercial convention at, I. 326, 340, 350. Recommends general convention to revise the federal system, 349. Recommendation, how received, 351. See HAMILTON and MADISON. _Annapolis Commissioners_, report of, acted upon in Congress, I. 355. _Anti-Federalists_, plan of, to postpone action of Virginia on Constitution, II. 568. See _Federalists_. _Appropriation Bills_, provision concerning, objected to, II. 147. See _Money Bills_ and _Revenue Bills_. _Arms of the United States_, when adopted, I. 151. ARMSTRONG, JOHN, wrote the Newburgh Addresses, I. 168. _Army_, power of Congress to raise and support, II. 333. Appropriation of money for support of, 333. Power of Congress to make rules for, 334. Standing, repugnant to American feelings, 336. Not to be kept by States in time of peace, 371. President commander-in-chief of, 413. Power of President to employ, 413. _Army of the Revolution_, first suggested, I. 31. How first raised, 32. State of, when Washington arrived at Cambridge, 55. How constituted, 58. Short enlistments in, how accounted for, 60. Committee of Congress sent to examine, 60. Discontents in, 79, 158, 186. History of, after the evacuation of Boston, 91. Reorganized, 91, 92. Defects in organization of, 93. Officers of, how appointed, 93; how treated in 1776, 94. Bad construction of, 94, 96. Third effort of Washington to reorganize, 109. Embarrassments and difficulties attending, 110. State of, in April, 1777, 111; in May, 1782, 158. _Arrest_, privilege from, II. 263. _Arsenals_, authority of Congress over, II. 340. _Articles of Confederation_, I. 509. Reported in Congress, and recommended to the States, 53, 104, 113. Adoption of, by the States, 124. Amendments to, proposed by the States, 128; by New Jersey, for regulation of commerce, 129. Chief obstacle to the completion of, 131. States urged to accede to, 134. Ratified by New Jersey, 135; by Delaware, 135; by Maryland, 136. Completion of, announced, 137. Established by patriotic sacrifices, 139. Outline of, 142. Construction of third article of, 265. Circular letter of Congress, recommending adoption of, 491. Representation of New Jersey respecting, 493. Act of New Jersey accepting, 497. Resolves of Delaware respecting, 498. Action of Maryland on, 501; of New York on, 505. Amendment of, at first contemplated, II. 16. How altered, 84, 180, 481. Citizenship under, 206. Effort to include in, power over Western Territory, 341. Admission of new States under, 345. On what terms ratified by smaller States, 346. Restraints imposed on States by, 363. Inter-state privileges under, 447. _Assemblies_ in Provincial governments, how constituted, I. 4. _Assembling_, one of the common law rights, I. 23. _Association_, drawn up by House of Burgesses in Virginia, I. 12. For non-importation, &c., how carried out by colonists, 24. _Attainder, Bills of_, defined, II. 360. Congress prohibited to pass, 360. States prohibited to pass, 368. _Attestation_ to Constitution, form of, II. 485. B. BALDWIN, ABRAHAM, model of Senate suggested by, II. 139. Vote and views of, respecting representation in Senate, 142. _Baltimore_, public rejoicings in, in honor of Constitution, II. 543. BARNWELL, ROBERT, in favor of Constitution, II. 510. Arguments of, in convention of South Carolina, 548. BELKNAP, Dr., on slavery in Massachusetts, II. 454. _Bill of Rights_, want of, a strong argument with some against Constitution, II. 498. James Wilson's views respecting, 522. States equally divided on question of, in Convention, 523. Considered essential by Patrick Henry, 554. Proposed by Virginia, 581. _Bills of Credit_, power to emit, prohibited to States, II. 328, 364. Meaning of, 329. _Boston_, occupied by royal troops in 1774-75, I. 27. Invested by army under General Ward, in 1775, 32. Reception of Constitution by people of, II. 501. Rejoicings in, in honor of Constitution, 540. _Boundary_, Southern, fixed by the Treaty of Peace, I. 312. Questions of, proposed to be determined by Senate, II. 223, 231; plan respecting, 235. Determination of, a judicial question, 232. See _Western Territory_, _Lands_, and _Northwestern Territory_. _Bounties_ offered for enlistment in 1776, I. 93. Additional, offered by States, 95; effect of, 110. BOWDOIN, JAMES, delegate to first Continental Congress, I. 13. Governor of Massachusetts, 270. Suppresses Shays's rebellion, 270. Message of, suggesting a general convention, 336. _Brandywine_, battle of the, force engaged in, I. 113. _Bribery_, by executive, dangers of, II. 242. _British Colonies_, legislatures of, divided into two branches, II. 132. BROUGHTON, NICHOLAS, commander of the Hannah, I. 74. BUTLER, PIERCE, in favor of the Constitution, II. 510. C. _Cabinet_, functions of, II. 407. Views respecting, in Convention, 408. President may require opinions of, 408. Constitutional character of, 409. Practice of first three Presidents respecting, 409. _Captures_, power of Congress to regulate, II. 330. _Capitation Tax_, report of committee of detail respecting, II. 290. Provision respecting, adopted, 304. CARROLL, CHARLES, proposition of, for asserting right of United States to vacant lands, II. 353, 355. _Cases_ arising under Constitution, &c., meaning of, II. 430. _Census_, periodical, proposed by Williamson of North Carolina, II. 153. Vote respecting, 153. See _Federal Census_. _Cessions_ of Northwestern Territory, II. 342. Of land by States to United States, 356. See _Western_ and _Northwestern Territory_. _Charleston_, rejoicings in, on adoption of Constitution, II. 548. _Charter_, of William and Mary to Massachusetts, I. 5; attempt to alter, 6. Inviolability of, 23. How distinguished from constitution, II. 7. _Charter Governments_, form and character of, I. 5. CHASE, SAMUEL, views of, respecting taxation of slaves, II. 159. _Checks_ of one department on another, II. 301. _Citizenship_, as qualification of national officers, II. 186, 188, 204; of senators, 223. State rules respecting, unlike, 199. General privileges of, under Confederation, 206, 448; under Constitution, 448. See _Naturalization_. CLARKE, GEORGE ROGERS, General, proceedings of, in Kentucky, I. 322. CLINTON, GEORGE, message of, as Governor of New York, on revenue system of 1783, I. 359. Head of party in New York opposed to Constitution, II. 502. _Coinage_ of the United States, origin of, I. 443. COIT, captain in the Revolutionary naval force, I. 74. _Colonies_, thirteen English, I. 3. Ante-Revolutionary governments of, 3. Form a union, 3. No union of, before the Revolution, 7. Common grievances of, 9. People of, how descended, 9. Rights of, how to be determined, 16; when and how stated, 20; declaration of, 22; what included in, 22; how to be enforced, 23. Trade of, how far right to regulate in Parliament, 20. Reduction of, to submission, great preparations for, 38. Trade with, prohibited by Parliament, December, 1775, 38. Change of, into States, 116. Constitutional power of, II. 179. _Commerce_, of the United States, I. 276; capacity of, at the close of the war, 284. Regulation of, a leading object of Constitutional Convention, II. 12; became an exigency of the Union, 13; how provided for, by Virginia plan, 90; if universal, must include slave-trade, 285; report of committee of detail respecting, 289; generally conceded to general government as necessary, 290; views of Southern statesmen respecting, 290; by Congress, beneficial to North and South, 291; a power conceded by South to North, 291; indivisible, 370; reluctance of South Carolina to concede, 546. Want of power over, in Confederation, 279. Interest of, in different States, not identical, 291, 299. Powers of government over, influence of, 311. Necessities of, basis of Constitution, 312. See _Regulation of Commerce_. _Commercial Convention._ See _Annapolis_ and _Virginia_. _Commercial Power_ asked for by Congress, I. 285. Action of the States respecting, 286. _Commercial Treaties_, want of, displayed, I. 277. Existing at the peace, 279. How far the Confederation competent to make, 279. Why not made with England, 282. Congress endeavors to get power to make, 285. Attempt to negotiate without power, 286. States refuse the power to make, 287. Fruitless efforts of the commissioners to negotiate, 289. _Commission._ See _Commercial Treaties_ and JOHN ADAMS. _Committee of Congress_ sent to confer with Washington, I. 60, 93. _Committee of the States_ under the Confederation, I. 146. _Committees of Correspondence_ recommended by Virginia, I. 11. Agency of, 12. _Common Law_, one of the rights of the Colonies, I. 23. And equity, distinction between, preserved by Constitution, II. 425. Basis of State jurisprudence, 425. _Commutation._ See _Half-Pay_. _Compromises_ between national and federal systems, II. 102, 104. Lie at the basis of the Constitution, 129. Respecting formation of Congress, 141, 167, 195; representation in Congress, 146. Respecting slavery, 161; how to be effected, 163; reflections on, 309. Committee of, proposed by Gouverneur Morris, 201. Respecting Senate, as affected by money bills, 217; choice of executive, 220. How to be studied, 220. Respecting slave-trade and navigation act, 302. If not made, necessary consequences, 315. _Confederation_, office of, in American history, I. 140, 149. Revenues of, 147. Defects of, 148, 155; II. 11, 14, 15, 35, 60, 79, 376. Restraints imposed by, upon the States, I. 149. Legal commencement of, 149. Operation of, to the close of the war, 181. Power of, to maintain an army and navy in peace, 215. Analyzed by Hamilton, 221. Principle of, adhered to, 225. Summary of its operations, 228. Incapacity of, to protect the State governments, 260. Had no strict power to hold or manage public lands, 291. Decay and failure of, 328; II. 13. Fatal defect in the principle of the, I. 371. Nature of, II. 16. Had no power of compulsion, 16, 376. Powers of, 27. Principle of, 33. Rule of suffrage under, 42. Had no executive or judiciary, 60. Laws of, to be executed by State tribunals, 61. Compared with Constitution, 90. Articles of, framed in 1776, 158. Assessments on States under, 160. Still in force while Convention in session, 178. Relation of, to States, 179. States opposed to entering, except on full federal equality, 227. Had no seat of government, 268. Want of power in, over commerce, 279; over revenues, 279. Engagements of, proposal to assume, 321. Want of power in, to admit new States, 349. Rule of, respecting making of treaties, 376, 416, 441. Nature and objects of, 448. How amended, 473. Chief cause of failure of, 573. See _Articles of Confederation_ and _Congress_. _Confiscations_, provided against, by the Treaty of Peace, I. 250. Strict right of, belonged to the Union, 251. _Congress_ of the Revolution, leaves Philadelphia after the battle of the Brandywine, I. 113; assembles at Lancaster and Yorktown, 113. Of the Confederation, first meeting of, 125; structure and form of, 143; II. 133, 226; powers of, I. 144; restrictions on powers of, 146; attendance diminished after the peace, 189; driven from Philadelphia by a mutiny, 220; decline of, 226; meeting of, in 1783, 235; thinly attended, 235; appointment and attendance of delegates, 237, 239; perpetually in session, 238; public objects to be accomplished by, 239; condition of, in 1785, 339; unfitted to revise the federal system, 364; had but one chamber, II. 132; resolution for continuance of, 176; method of voting in, 226; members of, chosen annually, and liable to recall, 241; appointment of officers by, complaints respecting, 248; met where, 268; presence of, in New York, benefits resulting from, 273; attempts of, to procure cessions from States, 342; resolve of, for regulation of Northwest Territory, 342; power of, to admit new States, 344; transmission of Constitution to, 486; action of, on Constitution, 499. Old, authority of, continued till new adopted, 86. Under Virginia plan, to have two houses, 101. Under New Jersey plan, to be one body, 101. Present constitution of, by whom first suggested, 138; compromise respecting, 141, 167. Power of, to legislate for general interests of Union, 170; to negative State laws, 170; respecting elections to, 257; in general, 279; over taxes, duties, &c., 322; to pay debts of United States, 322; to provide for common defence, &c., 322; over places purchased for forts, &c., 340; over Territories, different views concerning, 340, 358; limited, 340; over soil of national domain, 351; proposed, over property of United States, 355; restraints on, 359; to establish inferior tribunals, 423, 427. Acts of, supreme law, 170; how passed, 264. Proposal that executive be chosen by, 171. Members of, qualifications of, 194; ineligibility of, to office, 250; time, &c. of electing, left to States, 258; pay of, proceedings in Convention respecting, 258; objections to States paying, 259; privileged from arrest, 263; punishment and expulsion of, 263; not to be questioned elsewhere for speech or debate, 263. Importance of early legislation of, 208. Proposed to be modelled after Congress of Confederation, 226. Admission of members of Cabinet, &c. to, question respecting, 253. Each house of, to be judge of elections, &c. of its own members, 262; to determine its own rules of proceeding, 263; to keep journal, 263. Adjournment of, 275, 419. Exclusive sovereign of District of Columbia, 277. Time of meeting of, 277. To make all necessary and proper laws for execution of powers, 338. To declare war, 413. To authorize calling out of militia, 413. Special relations of President to, 419. To prescribe mode of proof and effect of State records, &c., 449. To propose amendments to Constitution, 477. To call Convention to amend Constitution, when, 477. _Connecticut_, a charter government, I. 5. Governor, council, and representatives always chosen by the people, 6. Had five representatives in first House, 149. Cedes claims to Western territory, 300, 344. Appoints and instructs delegates to the Convention, 369. Opposed to Convention, II. 23; to executive holding office during "good behavior," 173; to property qualification for office, 189; to nine years' citizenship as qualification of Senator, 224; to taxing exports, 296; to restricting President to stated salary, 407. In favor of equality of suffrage in both branches of Congress, 122, 138; of equal representation of States in Senate, 141, 148, 165; of census of free inhabitants, 153; of referring Constitution to State legislatures, 184; of each State having one vote in Senate, 227. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 216, 218; respecting eligibility of members of Congress to office, 251; respecting slave-trade, 305. Ratification of Constitution by, 515. Convention of, 527; debates in, mostly lost, 529. _Connecticut Reservation_, note on, I. 300. _Constitution_, how framed, II. 3. Means of peaceful coercion a leading object of, 62. An abridgment of State powers in some respects, 73. Republican government guaranteed to States by, 80, 458, 468. Capacity of, of amendment, 84. Why submitted to people for ratification, 84. As reported to Convention, 86. Different plans of, proposed in Convention, 89. Compared with Confederation, 90. Compromise of, between national and federal system, 102. Based on compromises, 129. Possibility of failure to create, reflections on, 142. Framers of, problem before, 155; position and purposes of, 178; had been observers of Parliamentary corruption, 242. State and national officers sworn to support, 177, 372. Ratification of, 177. Dissatisfaction with, in different States, 182. How differs from league, 184. Proposal to submit, to Congress of Confederation, 185. Growth of, important to be pursued through entire proceedings, 193. Divided into twenty-three articles by committee's report, 194. Interest in Europe respecting, 196. Should define eligibility to national offices, 199. Purposes of, respecting immigrants, 209. Analogy of, to British Constitution, 214. Provisions of, as originally proposed, 230. Benefits of, to North and South, 303. Conception of, gradually attained, 311. Hopes of framers of, exceeded, 311. Sprung from necessities of commerce, 312. Objections to, of favoring slavery, superficial, 313. Proper mode of judging, 313. Rights guaranteed to States by, 314. Beneficent operation of, on condition of slaves, 315. Provision of, respecting power of Congress over Territories, 355; purpose of, 355; explanation of, 357. Adoption of, 372. Preamble to, 372. Supreme law, 374. Binding on all judicial officers, 374. Complex character of, 379. Workings of, not impaired by territorial growth, 381. Success of, when other systems had failed, cause of, 384. Proposed by Governor Randolph, 410. Cases arising under, meaning of, 430. Confers few special powers on general government, 432. Restrictions laid on States by, 432. Powers of national and State governments determined by, 436. Designed to form a more perfect union, 448. Inter-state privileges under, 448. Amendments of, how proposed and adopted, 473. Oath to support, by whom to be taken, 478. Religious test never to be required under, 478. Serious questions respecting mode of establishing, 479. Effect of ratification of, by only part of States, 484. Formal assent of States to, in Convention, 485. Form of attestation to, 485. Refusal of three delegates to sign, 485. Presentation of, to Congress, 486. Probable consequences of rejection of, 487. Issue presented by, to people of United States, 487. Attempt to introduce monarchy averted by, 494. Published September 19th, 1787, 495. Reception of, among the people, 495. Friends and opponents of, classified, 495. Advocates of, why styled Federalists, 496. Adopted by intelligent majority in each State, 499. Reception of, by Congress, 499. Attempt in Congress to arrest or alter, 499. Real crisis of, 515. General and special opposition to, 515. People predisposed to adopt, 516. First ratified by Delaware, 518. Right of people to change at pleasure, 522. Bestows only a part of power of people, 522. Ratification of, rejoicings in honor of, 540. Anxiety respecting State action on, 544. Amendments of, proposed by South Carolina, 548. Opposition to, in New York, 572. Adoption of, an event unparalleled in history, 584. Opponents of, concessions to, justified, 590. _Constitutions_, written, how far existed before the Revolution, I. 4. Of the States, origin and character of, 261. _Constitutional Convention_, first suggestion of, I. 206. First suggested by Massachusetts, 336. Suggestion of Massachusetts respecting, not adopted, 337; withdrawn, 338; objections of her delegates in Congress to, 339. Urged by various public bodies, 349. Considered and adopted by Congress, 350. Early recommendations of, 350. Recommended by the Annapolis Commissioners, 350; by Congress, 361. Difficulties of its position, 367. Powers of, not strictly defined, 367. Opinions of leading statesmen respecting, 373. Assembles at Philadelphia, 374. Novelty and peculiarity of its task, 374. List of members of, 516. Great object of, II. 5. Members of, character of, 17; different views of, 17; greatness of, 144. Authority and powers of, uncertain, 18. All States but Rhode Island represented in, 23. Presence of all States in, not required, 26. Had no power to enact or establish, 29. Character of, 29. Proceedings of, how to be studied, 29; secrecy of, 491; singular rumors respecting, 492. Supposed want of authority in, to propose fundamental changes, 91. Report of committee of the whole made to, June 19th, 129. Struggle in, respecting form of Constitution, 129. Disruption of, imminent at one time, 142. Possible consequences of failure of, 143. Resolution recommending, 185. Instructions to delegates to, 185. Causes of success of, 475. A second, inexpedient, 475, 589. Dissolved September 14th, 1787, 491. _Constitutional Law, American_, originates in The Federalist, I. 417. Questions of, how determined, II. 375. _Constitutionality_ of laws, questions of, how settled, II. 433. _Construction_, questions of, how far considered, II. 4. _Consuls_, to be nominated by President, I. 418. Cases affecting, jurisdiction of, 444. _Continental Congress_, formation of first, I. 3. Advised by Franklin in 1773, 10. First suggestion of, 11. Recommended by Virginia, 11. Appointed for September, 1774, 12. Declared expedient by Massachusetts, 12. First, assembled and organized, 13; delegates to, how appointed, 13; how composed, 14; method of voting in, 15; relation of, to the people of the several Colonies, 15; purpose of, not revolutionary, 16; instructions to delegates in, 18; how it sought redress, 18, 19; revolutionary tendency of, 19; assumed guardianship of rights and liberties, 19; proceedings of, in stating rights, 20; duration of, 24; adjournment of, 25; recommends another Congress, 25; where held from 1774 to 1783, 226; each Colony had one vote in, II. 227. Second, election of delegates to, by Massachusetts Provincial Congress, I. 27; assembles at Philadelphia, 28; delegates to, how appointed, 29; instructions to delegates to, 29; rule of voting in, 29; powers assumed by, 31. Becomes a permanent body, 30. Petition of, to the King, 38. Dissolves the allegiance of the Colonies to the King, 38. Becomes a revolutionary government, 39. Nature of the government by, 54. Situation of, at the end of 1776, 100. Change in the members of, in 1777, 104. Credentials of members of, in 1776, 105. Constitution of, II. 42. _Continental Currency_ first issued, I. 34. _Contracts_, restraint on legislative violation of, origin of, II. 361, 365; obligation of, impaired by State law, redress in case of, 433. See _Obligation of Contracts_. _Contribution_, rule of, attempted to be changed, I. 210. _Convention_, at Williamsburg, I. 12. At Hartford, in 1779, 205. _Convention of all the States._ See _Constitutional Convention_. _Copyrights_, State legislation concerning, II. 339. Power over, surrendered to Congress, 339. CORNWALLIS, enters Newark, I. 98. Effect of capture of, 157. _Council_, vacancies in, how filled in provincial governments, I. 4. Suspension of, from office in provincial governments, 4. Part of the provincial governments, 4; charter governments, 5. How chosen, 5. _Council of Revision_, proposed, dangers of, II. 435; much favored in Convention, 438; purpose of, 438. _Counterfeiting_, power of Congress to define and punish, II. 332. _Courts_, inferior, Congress may establish, II. 330, 423. _Courts of United States_, jurisdiction of, over persons of certain character, II. 441. Admiralty and maritime jurisdiction of, 445. _Creditors_, rights of, secured by the Treaty of Peace, I. 250. _Crimes_, trial for, to be in State where committed, II. 424; to be by jury, 424. _Crown_, the source of political power in the Colonies, I. 3. Powers of, in provincial governments, 4. _Currency_ under Revolutionary government, I. 78. CUSHING, THOMAS, suggests Continental Congress, I. 11. Delegate to first Continental Congress, 13. D. DANE, NATHAN, author of Ordinance of 1787, II. 344, 365. _Debts_ due to English merchants at the peace, I. 250. Action of Congress respecting, 258. Of States, proposition to assume, II. 319. Of United States, provision for payment of, 320; power of Congress to pay, 322. _Debt of the United States_, in 1783, I. 172. Foreign and domestic, where held, 178. National character of, 182. Necessity of revenue power to discharge, 183. Amount of, at the close of the war, 184. _Declaration of Independence_, authorship of, I. 81. Effect of, upon the country, 89; upon Congress, 90. See _Independence_. _Declaration of Rights_, by first Continental Congress, I. 22. _Delaware_, a proprietary government, I. 5. Constitution of, formed, 122. Resists the claim of great States to Western lands, 131. Ratifies the Confederation, 135. Action of, commended, 138. Resolves of, respecting the Articles of Confederation, 498. Opposed to change in rule of suffrage, II. 35; to division of legislature, 133; to census of free inhabitants, 153; to striking out wealth from rule of representation, 164; to referring Constitution to people, 185; to property qualification for office, 189; to restricting President to stated salary, 407. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 216, 218; respecting slave-trade, 305; respecting admission of States, 354. In favor of equality of suffrage in House of Representatives, 138; of equality of States in Senate, 165; of executive holding office during "good behavior," 173; of referring Constitution to State legislatures, 184; of each State having one vote in Senate, 227; of taxing exports, 296. Had one representative in first House, 149. Ratification of Constitution by, 515, 518. Patriotism of, 518. Enlightened by discussions on Constitution in Pennsylvania convention, 518. _Delaware River_, Washington crosses the, I. 99. _Delegate_, Territorial, position of, in Congress, II. 256. _Democracy_, did not originate in America, II. 7. Principle of, how modified in America, 7. _Departments of Government_, division of, I. 118. DICKINSON, JOHN, in favor of tax on exports, II. 284. _Dictatorship._ See _Washington_. _District of Columbia_, under exclusive government of Congress, II. 277. _Dock-Yards_, authority of Congress over, II. 340. DORSET, Duke of, reply of, to the American Commissioners, I. 289. DUANE, JAMES, efforts of, to procure adoption of Constitution by New York, II. 585. _Duties_, power to levy, asked for by Congress in 1781, I. 173; not given, 174. Power of Congress to impose, II. 322. To be uniform throughout United States, 325. What may be laid by States, 368. Laid by States, net produce of, how applied, 368; subject to revision of Congress, 368. Payment of, how compelled, 433. E. _Eastern States_, course of, respecting the navigation of the Mississippi, I. 315. _Elections_, frequency of, favored, II. 241. _Elective Franchise_, could not be confined to native citizens, II. 198. _Electors_, of President, advantages of, II. 175; proposed in committee, 220; number of, 235, 389; embarrassments respecting choice of, 388; mode of election by, 390; case of no choice by, 390; required to return votes for two persons, 393; how chosen, 398; method of proceeding, 399; new appointment of, when, 403. Property as a qualification of, 187. Of representatives in Congress, qualification of, 194, 200. ELLSWORTH, OLIVER, compromise respecting Congress proposed by, II. 141. Opposed to tax on exports, 294. Influence and arguments of, in Connecticut convention, 528. _Emigration_, from Europe, a subject of solicitude, II. 195. _England_, government of, not a model for the Constitution, I. 391. _English Language_ spoken by the colonists, I. 3, 9. _English Laws_ inherited by the colonists, I. 9. _Enlistments._ See _Army_ and _Bounties_. _Equity_ and common law, distinction between, preserved by Constitution, II. 425. Jurisdiction under Constitution important, 425. _Europe_, politics of, as affecting America, II. 80. _Excises_, power of Congress to collect, II. 322. To be uniform throughout United States, 325. _Executive_, methods proposed for choice of, II. 59, 171. Duration of office of, under Hamilton's plan, 100. Duration of office of, 171; proposed to be during "good behavior," 173. Re-eligibility of, different views respecting, 172, 175. Choice of, directly by people, difficulties attending, 174. Whether should be subject to impeachment, 175. Choice of, conflict of opinions respecting, 220; proposed to be by Congress for seven years, 220; by electors, 220; by Senate, in certain events, 221; by House of Representatives, 222; by concurrent vote of Senate and House of Representatives, 223, 230; proposed negative of Senate in, 232. Jealousy of, 232. See _President_ and _Vice-President_. _Executive Department_, proposed constitution and powers of, II. 56, 170. Relation of, to legislature, 57, 247. Unknown to Confederation, 60. Powers of, defined by constitutions in America, 72. Influence to be allowed to, over legislative, 244. Action of, requires discretion, 246. "_Executive Power_" vested in President, meaning of, 412. _Exports_, taxation of, Pinckney's proposition concerning, II. 189; refusal of South Carolina to submit to, 281, 285; an undoubted function of government, 282; consequences of denial of, 282; when only beneficial, 282; question of, as affected by variety, 283; members of Convention in favor of, 284; report of committee of detail respecting, 290; great embarrassments respecting, 294; arguments for and against, 294, 297; opposition to, not confined to South, 294; by States, an oppressive power, 295; finally prohibited, 295; for what reasons opposed in Convention, 297; by States, arguments for and against, 368. _Ex Post Facto Laws_, definition of, II. 360, 367. Passage of, prohibited to Congress, 360; to States, 368. F. _Faith and Credit_, to be given to certain acts, &c., I. 143. _Falmouth_ (now Portland), burnt, I. 38, 74. _Faneuil Hall_, meeting at, respecting a national regulation of commerce, I. 336. _Federal Census_, origin of its rule of three fifths, I. 213. _Federal Government_, how distinguished from "national," II. 33. By what States preferred, 117. Arguments in favor of, 124; theoretically sound, 126. Had proved a failure, 127. _Federal Town._ See _Congress_ and _Seat of Government_. _Federalist_, original meaning of, II. 496. Changes in meaning of term, 497. Miniature ship so called, 543. _Federalists_ of Massachusetts, enthusiasm kindled by, II. 541. Of New Hampshire, action of, 541. Of New York, justified by Washington, 590; complaints against, 591. _Federalist, The_, published, I. 409. Character and influence of, 417. History of the editions of, 418. Remark of, respecting Confederation, II. 61. Purpose of publication of, 503. When first issued, 503. Authors of, 503. _Felony_, various meanings of, II. 331. Power of Congress to define and punish, 331. _Finances_, must rest on some source of compulsory revenue, I. 183. See _Debts_, _Revenue_, and _Duties_. _Fisheries_, great value of, II. 310. _Foreigners_, cases affecting, jurisdiction in, II. 443. Cannot demand sanctuary as matter of right, 457. _Foreign Influence_, jealousy of, II. 196, 204, 223. Necessity of counteracting, 211. _Forts_, authority of Congress over, II. 340. _Framers of the Constitution_, difficulties and perplexities of their task, I. 380. Their qualifications, &c., 386. Their success, 393. _France_, debts of the United States to, I. 172. Contracts with the king of, 177. Relations of the United States to, 178. FRANKLIN, BENJAMIN, his plan of union in 1754, I. 8. Advises a Congress in 1773, 10. Appointed Postmaster-General by Continental Congress, 35. One of the committee to prepare Declaration of Independence, 50. One of the commissioners to procure commercial treaties, 287. Returns from Europe, 433. Public services of, 433. Character of, 435. Influence in the Convention, 436. Speech of, at the close of the Convention, 437. Witnesses the success of Washington's administration, 439. Proposition of, respecting representation in Congress, II. 146. Views of, respecting money bills, 218. Opposed to paying President, 405. In favor of plural executive, 405. Views of, respecting executive, quite unlike Hamilton's, 405; respecting consequences of rejection of Constitution, 487. Unbounded confidence of people in, 498. _Free Inhabitants_, privileges of, I. 143. _French Loans._ See _France_. _French Revolution_, early writers of the, I. 378. Begun when Constitution went into operation, II. 80. Interest felt in, in America, 80. _French Troops_, arrive at Newport, I. 156. Join the army at New York, 156. _Fugitives_, from justice, provision for surrender of, under the Confederation, I. 143, II. 449. From service, clause in Constitution respecting, history of, 450. See _Slaves_. G. _General Convention._ See _Constitutional Convention_. _Georgia_, a provincial government, I. 4. Constitution of, formed, 122. Appoints and instructs delegates to the Convention, 369. Had but one chamber in legislature, II. 132. Opposed to equality of suffrage in House of Representatives, 138. Divided on question of equal vote of States in Senate, 141, 148. Had three representatives in first House, 149. Opposed to census of free inhabitants, 153; to equality of States in Senate, 165; to executive holding office during "good behavior," 173. In favor of property qualification for national officers, 204. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 216, 218. Divided on question of each State having one vote in Senate, 227. Opposed to taxing exports, 296. Position of, in Convention, respecting slave-trade, 297, 301. Vote of, respecting slave-trade, 305. Cession by, in 1802, 357. Vote of, on suspension of habeas corpus, 360; respecting citizenship clause in Constitution, 453. Ratification of Constitution by, 515, 526. Remoteness of, 526. Situation of, at close of Revolution, 526. Motives of, to embrace Constitution, 526. Address by legislature of, to President Washington, 527. Exposure of, to ravages of Indians, 527. Escape of slaves from, to Florida, 527. GERRY, ELBRIDGE, opposed to numerical representation in Congress, II. 49; to tax on exports, 294. Refused to sign Constitution, why, 485. Censured for refusing to sign Constitution, 501. GILLON, Commodore, arguments of, in convention of South Carolina, II. 548. GORHAM, NATHANIEL, views of, respecting rule of suffrage for House of Representatives, II. 135. A member of committee to apportion representatives, 148. _Government_, disobedience to, how punished, II. 61. Essentials to supremacy of, 62. Different departments in, advantages of, 245. Approximation to perfect theory of, only attainable, 247. Distribution of powers of, when easy, 421; when difficult, 421. _Governor_, part of the provincial governments, I. 4. GRAYSON, WILLIAM, opposed to Constitution, II. 506. _Great Britain_, re-union with, desired by some, II. 493; letter of Colonel Humphreys respecting, 493; Hamilton's views respecting, 494. _Green Dragon Tavern_, meeting at, respecting a national regulation of commerce, I. 336. _Grievances._ See _Colonies_ and _Revolution_. _Guardoqui_, Spanish minister, arrival of, I. 313. Negotiations with, respecting the Mississippi, 313. H. _Habeas Corpus_, privilege of, when suspended, II. 359; under common law of England, 359. _Half-pay_, resisted by Connecticut and Massachusetts, I. 190. History of, 194. Commutation of, 194. See _Officers of the Revolution_. HALLAM, HENRY, Constitutional History of England by, great value of, II. 244. HAMILTON, ALEXANDER, laments the changes in Congress in 1778, I. 127. Exertions of, respecting revenue system, 176. Reasons of, for voting against revenue system, 177. Answers the objections of Rhode Island, 177, 206, 207. On the commercial advantages of a revenue power, 184. On the discontents of the army, and the public credit, 197. Opinions of, concerning the reorganization, &c., in 1780, 202. Maintains that Congress should have greatly enlarged powers, 204. Suggests a convention of all the States in 1780, 205. Enters Congress, 206. On a revenue, and the mode of collecting it, 207. On the compatibility of federal and State powers, 207. On the appointment of revenue officers, 208. Extent of views of, 209. On the rule of contribution, 210. On the necessity for power of taxation, 211. Seeks to introduce new principles, 211. On a peace establishment, 214. Opinions on the powers that should be given to Congress, 219. Exertions of, to suppress the mutiny at Philadelphia, 220. Views of, respecting defects of the Confederation, 221. Opinions of, too far in advance of the time, 224. Answers New York objections to revenue system, 247. Opinions of, concerning the Confederation, 263. Views of, respecting the regulation of commerce, 277; the statesmanship of America, 278. Induces New York to send delegates to Annapolis, 345. Reports at Annapolis in favor of a general Convention to revise the federal system, 347. Relation of, to the plan of a general Convention, and a national Constitution, 350. Contemplates a new government, 350. Induces the legislature of New York to urge a general Convention, 359. Views of, on the mode of proceeding, 364. Confidence of, in the experiment of a Convention, 373. History and character of, 406. Birth of, 408. Various public services of, 409, II. 593. Talleyrand's opinion of, I. 410. Death of, 410. Views of, respecting the English Constitution, 411. Relation of, to the Constitution, 412. Compared with the younger Pitt, 413, 416. Eminent fitness of, for the times, 414. Advocates the Constitution in the Federalist, 417. Compared with Webster, 418. Anxiety of, about the Constitution, 419. Unjustly charged with monarchical tendencies, II. 11, 94, 110. Views of, respecting Constitution, 94. Principles of civil obedience, as propounded by, 96. Views of, respecting rule of suffrage for House of Representatives, 135; dissolution of Union, 136; choice of President, 174, 240, 392; naturalization, 205; larger House of Representatives, 213. Measures of, respecting summoning of Constitutional Convention, 273. Views of, respecting executive, quite unlike Franklin's, 405; President's power to adjourn Congress, 420. Explanation of, respecting appellate power of Supreme Court, 428. Views of, respecting amendment of Constitution, 477. Objections of, to Constitution, 487. Views of, respecting consequences of rejection of Constitution, 487, 570; possible reunion with Great Britain, 494. Essays of, in Federalist, 503. Believed people predisposed in favor of Constitution, 516. Arrangements of, for transmission of news of action of States on Constitution, 551. Leading spirit in convention of New York, 568. Anxiety of, respecting action of States on Constitution, 569. Had great cause for solicitude, 569. Prospects of usefulness of, 569. Foresight of, respecting operation of Constitution, 570. Had profound understanding of Constitution, 570. Ambition of, 570. Importance of public character and conduct of, 570. Contest of, with opponents of Constitution in New York, 571. Critical position of, as citizen of New York, 571. Reply of, to opponents of Constitution in New York, 572. News received by, of ratification of Constitution by New Hampshire, 573. Letter of, to Madison, respecting chances of ratification by New York, 575. Would have been led by personal ambition to remove from New York, 575. Policy of, national, 577. Reason of, for embracing Constitution, 577. Efforts of, to procure adoption of Constitution by New York, 577, 584. Sends news of ratification by New Hampshire to Madison, 578. Great speech of, in New York convention, in favor of Constitution, 586. Writes to Madison, asking advice respecting New York, 587. Honors paid to, by city of New York, 592. HANCOCK, JOHN, retires from Congress, I. 125. Returns to Congress, 126. President of Massachusetts convention, II. 537. Proposes amendments to Constitution, 537. Great influence of, 537. HARRISON, BENJAMIN, opposed to Constitution, II. 506. _Hartford Convention_, met in 1779, I. 205. _Heights of Haerlem_, occupied by Washington, I. 92. HENRY, PATRICK, Governor of Virginia, I. 126. Declined to attend Convention, II. 173. Opposed to Constitution, 505. Characteristics of, 505, 561. In favor of submitting Constitution to people of Virginia, 510. Leader of opponents of Constitution in Virginia, 552. Jefferson's estimate of, 552. Great popularity of, 552. Wisdom of, lacked comprehensiveness, 553. Great powers of, employed against Constitution, 553. Views of, respecting American spirit of liberty, 553. Considered Bill of Rights essential, 554. Arguments of, against Constitution, 555, 557. Modern scepticism concerning abilities of, 561. Quotes Jefferson's views of Constitution, 561. Opposed to Constitution to the last, in Virginia Convention, 579. Project of, for amending Constitution, 580. Patriotic conduct of, on adoption of Constitution by Virginia, 581. Became earnest defender of Constitution, 582. _House of Burgesses_, of Virginia, dissolved, I. 11. _House of Commons_, ministerial majority of, during Revolution, II. 237. _House of Representatives_, Constitution of, discussion respecting, II. 36. Members of, chosen for two years, 134; qualifications of, 134. Rule of suffrage for, great debate on, 135. Exclusive power of, over money bills, 146, 214. Power of, to fix salaries of government officers, 146. Ratio of representation in, 147, 212. First, apportionment of members for, 148, 151. Basis of, agreed to, 165. Members of, must be twenty-five years old, 203; have been citizens three years, 203; be inhabitants of States from which chosen, 212. Larger, favored by Wilson, Madison, and Hamilton, 213. Ultimate choice of executive by, 222. To present impeachments, 262. Quorum of, 262. To choose its own presiding officer, 263. To vote for President by States, 394. Choice of President by, quorum for, 394; majority of States requisite to, 394. HOWE, SIR WILLIAM, proclamation by, respecting oath of allegiance, I. 106. Takes possession of Philadelphia, 113. Estimate of, concerning the American force at the Brandywine, 113. HUMPHREYS, Colonel, one of Washington's aids, II. 493. Letter of, respecting hopes of loyalists, 493. HUNTINGTON, Governor, influence of, in convention of Connecticut, II. 529. I. _Impeachment_, executive proposed to be removable on, II. 171. Whether executive should be subject to, 176. How to be decided, 232. To be presented by House of Representatives, 262. Of President, causes of, 397. King's pardon cannot be pleaded in bar of, 414. President cannot pardon, 414. King may pardon, 414. _Impeachments_, proposed plan respecting, II. 235. Nature of, and constitutional provisions respecting, 260. To be tried by Senate, 261. _Imposts_, power of Congress to collect, II. 322. To be uniform throughout United States, 325. What may be laid by States, 368. Laid by States, net produce of, how applied, 368; subject to the revision of Congress, 368. Revenue from, easiest mode of paying expenses of government, 528. _Indian Affairs_, superintendence of, assumed by Continental Congress, I. 35. _Indians_, position of, II. 325. Commerce with, 325; regulated by federal authority, 326; provision of Confederation respecting, 326. Not regarded as foreign nations, 326. _Independence_, resolution of, adopted in Congress, I. 49. Declaration of, ordered to be prepared, 50; brought in, 51; adopted, 51; effect of, 51. _Inspection Laws_, subject to what abuse, II. 368. _Insurrection._ See _Massachusetts_ and _Shays's Rebellion_. J. JAY, JOHN, report of, on the infractions of the Treaty of Peace, I. 254, 257. Projected mission of, to Spain, 313. Proceedings of, as Secretary for Foreign Affairs, respecting the Mississippi, 313. Essays of, in Federalist, II. 503. Efforts of, to procure adoption of Constitution by New York, 585. JEFFERSON, THOMAS, one of the committee to prepare Declaration of Independence, I. 50. Account by, concerning the Congress of 1776, 64. Account by, of Declaration of Independence, 82. In the legislature of Virginia, 126. One of the commissioners to procure commercial treaties, 287. On the surrender of the Mississippi, 321. Suggests the decimal coinage, 443. Views of, respecting admission of States, II. 76. Resolve of, for organization of States from Northwestern Territory, 343. Practice of, respecting cabinet, 409. Views of, respecting government, 506; modifications of Constitution, 506. At Paris when Constitution was adopted, 506. Did not counsel rejection of Constitution, 508. Persevered in certain objections to Constitution, 509. Letters of, respecting Constitution, 562, 564. JOHNSON, Dr., of Connecticut, views of, respecting Constitution, II. 128. First suggested present constitution of Congress, 138. _Journal_, to be kept by each house of Congress, II. 263. _Judges_, tenure of office of, II. 67; in England, 67. Removal of, 68. Power of removal of, in England, 69; in Massachusetts, 70. "Good behavior" of, 70. _Judicial Power of United States_, to settle disputes between State and nation, II. 54. Unknown to Confederation, 60. Necessity and office of, 61. Intent evinced by introduction of, 63. Made supreme, 64. Coextensive with legislative, 65. Control of, over State legislation, 66. Formation of, 421. Great embarrassments respecting, 422. Admirable structure of, 422. Jurisdiction of, cases embraced by, 423. Great importance of clearly defining, 425. Embraces cases under Constitution, laws, and treaties, 429. Changes and improvements in original plan of, 431. Constitutional functions of, 431. Leading purposes of, 431. May declare laws unconstitutional, 434. Simplicity, &c. given by, to operation of government, 437. _Judiciary_, functions of, II. 63, 432. Question concerning number of tribunals in, 65. Proposed powers of, 66. Restriction respecting salary of, 176. Jurisdiction of, respecting impeachment of national officers, 176; over cases arising under national laws, 176; over questions involving national peace, 176. Action of, not to be influenced by other departments, 246. _Judiciary of Massachusetts_, attempt to alter the charter in respect to, I. 6. K. _Kentucky_, inhabitants of, resist the surrender of the Mississippi, I. 322. KING, RUFUS, birth and education of, I. 448. Public services of, 448. Proposes the clause respecting the obligation of contracts, 452; II. 365. Senator in Congress, I. 453. Minister to England, 453. A member of committee to apportion representatives, II. 148. Views of, respecting Senate, 225; seat of government, 275. Remarks of, respecting slave-trade, 281. Views of, respecting representation of slaves, 292. Effort of, to exclude slavery from Northwestern Territory, 343. L. _Land_ as the basis of a rule for contribution, I. 210. Adopted as measure of wealth by Congress of 1776, II. 160. Of United States unappropriated, Madison's motion respecting, 351. _Lands_, right of aliens to hold, proposed in certain treaties, I. 280. See _Western Lands_ and _Territory_. _Law of Nations_, offences against, II. 330; power of Congress to define and punish, 331. Respecting extradition of fugitives, 456. _Laws_ of United States, how enacted, II. 264; supreme, 372, 374; to be in pursuance of Constitution, 374; cases arising under, jurisdiction over, 430. Of States, constitutionality of, 374. Constitutionality of, how determined, 434. LAW, RICHARD, influence of, in convention of Connecticut, II. 529. LEE, CHARLES, General, expedition of, against the Tories of New York, I. 66. LEE, RICHARD HENRY, moves the resolution of independency, I. 49. Account of, 49. On the navigation of the Mississippi, 315. Proposition of, in Congress, to amend Constitution, II. 500. Opposed to Constitution, 506. _Legislative Department_, division of, into two chambers, I. 119. Omnipotent in England, 72. Powers of, limited in America by constitutions, 72. Hamilton's views respecting, II. 100, 103, 105. Great struggle respecting, in Constitutional Convention, 130. Objections to one chamber in, 130. How far may safely be influenced by executive, 244. Action of, requires discretion, 246. Close relation of, to executive, 247. _Letters of Marque and Reprisal_ issued by Massachusetts in 1775, I. 75. Power of Congress to grant, II. 332. _Lexington_, battle of, I. 27. LIVINGSTON, ROBERT R., one of the committee to prepare Declaration of Independence, I. 50. Remarks of, in convention of New York, II. 574. Efforts of, to procure adoption of Constitution by New York, 585. _Long Island_, battle of, I. 91. LOWNDES, RAWLINS, opposed to Constitution, II. 510. Arguments of, against Constitution, 511. _Loyalists_, scheme of, respecting Bishop of Osnaburg, II. 492. Numbers of, small, 493. Alarm occasioned by supposed scheme of, 493. See _Tories_. M. MADISON, JAMES, enters the Revolutionary Congress, I. 126. Exertions of, respecting revenue system, 176. Writes the address in favor of revenue system, 177. Answers Massachusetts on the half-pay, 193. Birth of, 420. Public services of, to the close of the war, 420. Initiates the Virginia measures leading to a general Convention, 423. Attends the convention at Annapolis, 427. Attends the general Convention, 427. Labors of, in the Convention, 427. Opinions and character of, 428. Described by Jefferson, 430. Letter of, to Philip Mazzei, 431. Action of, respecting change in rule of suffrage, II. 36. Views of, respecting national government, 40; Senate, 41; revision by Congress of State legislation, 54; revisionary check on legislation by executive, 58; use of force against States, 62; Constitution, 106; rule of suffrage for House of Representatives, 135; dissolution of Union, 136; Western States, 152. How far in favor of executive during "good behavior," 173. Views of, respecting difference between Constitution and league, 184; naturalization, 205. In favor of larger House of Representatives, 213. Views of, respecting eligibility of members of Congress to office, 250; seat of government, 275. In favor of tax on exports, 284. Views of, respecting slave-trade, 304. Proposition of, respecting Indian affairs, 327. Views of, respecting legislation of Congress of Confederation over Northwestern Territory, 345, 348, 351. Views and votes of, concerning Northwestern Territory, 348. Holds regulation of commerce to be indivisible, 371. Views of, respecting treason, 386. Motion of, respecting election of President, 403. Views of, respecting amendment of Constitution, 477; consequences of rejection of Constitution, 487. Proposed amendment of Constitution by Congress, defeated by, 500. Essays of, in Federalist, 503. A leading advocate of Constitution in Virginia, 506. Reply of, to opponents of Constitution in Virginia convention, 558. Description of new government by, 559. Efforts of, in Virginia convention, 564. Opinion of, respecting conditional ratification of Constitution, 588. _Magazines_, authority of Congress over, II. 340. _Majority_, principle of, seldom to be departed from, II. 299. _Mandamus Councillors_, appointment of, in Massachusetts, I. 25. Treatment of, by the people, 25. MANLY, JOHN, commander of the Lee, I. 74. Captures a prize, 75. _Maritime Jurisdiction_, of courts of United States, II. 445. Under Confederation, 445. MARSHALL, JOHN, a leading advocate of Constitution in Virginia, II. 506. MARTIN, LUTHER, views of, respecting Constitution, II. 92, 121; rule of suffrage for House of Representatives, 135; manner of voting in Senate, 186. Motion of, respecting admission of States, 354. Supremacy of Constitution, &c. proposed by, 374. Great opposition of, to Constitution, 484, 512. Communication of, to legislature of Maryland, 512; chief ground of, 513. MARTINDALE, captain in the Revolutionary naval force, I. 74. _Maryland_, a proprietary government, I. 5. Constitution of, formed, 122. Remonstrates against the claims to Western lands, 131, 421. Ratifies the Constitution, 136. Action of, commended, 138. Appoints and instructs delegates to the Convention, 369. Action of, upon the Articles of Confederation, 501. Delegates from, divided in opinion, II. 121. Divided on question of national legislature, 133; equality of suffrage in House of Representatives, 138. In favor of equal representation of States in Senate, 141, 165. Had six representatives in first House, 149. Opposed to census of free inhabitants, 153; executive holding office during "good behavior," 173. In favor of referring Constitution to State legislatures, 184; each State having one vote in Senate, 186, 227. Vote of, respecting citizenship, as qualification for office, 209; money bills, 216, 218. Opposed to nine years' citizenship as qualification of senator, 224; taxing exports, 296. Vote of, respecting slave-trade, 305; admission of States, 354. Action of legislature of, respecting Constitution, 511. Convention of, to vote on Constitution, 514; importance of action of, 542; efforts made in, to amend Constitution, defeated, 543. MASON, GEORGE, views of, respecting Constitution, II. 123. Objections of, to compound ratio of representation, 151. Views of, respecting money bills, 218. Opposed to tax on exports, 294. Proposition of, to restrain grants of perpetual revenue, 319. Views of, respecting militia, 337. Refused to sign Constitution, why, 485, 509. Great ability of, 505. Opposed to Constitution, 505. In favor of submitting Constitution to people of Virginia, 509. Arguments of, against Constitution, in Virginia convention, 557. _Massachusetts_, a charter government, I. 5. Provincial governor of, appointed by the crown, 5. Council of, chosen by Assembly, 5. Representatives of, chosen by the people, 5. Appoints delegates to first Continental Congress, 12. Colonial government of, how ended, 25. Provincial Congress of, how formed, 26. Authority assumed by Provincial Congress, 26. Applies to the Continental Congress, for direction and assistance, 31; about government, 32. Army raised by, in 1775, 31. Issues letters of marque and reprisal, 75. Establishes prize court, 75. Money borrowed of, by General Washington, 80. Constitution of, formed, 121. Objections of, to the half-pay, 191; answered by Madison, 193. Act of, concerning British debts, 253. Constitution of, dangers to which it was exposed, 263. Insurrection in, 266, II. 83. Disaffection in, extensive, I. 273. Cedes claims to Western Territory, 300. Proceedings of, respecting a general Convention, 334. Condition of the trade of, in 1785-86, 335. Legislature of, proposes a general Convention, 336; resolutions of, not presented to Congress, 337. Resolution of, for a general Convention, 361. Appoints and instructs delegates to the Convention, 369. Opposed to equality of suffrage in House of Representatives, II. 138; equal representation of States in Senate, 141, 217. Divided on question of equal vote of States in Senate, 148, 165. Had eight representatives in first House, 149. In favor of census of free inhabitants, 153. Opposed to executive holding office during "good behavior," 173. Qualifications of voter in, 188. In favor of property qualification for national officers, 204. Vote of, respecting citizenship as qualification for office, 209; money bills, 216, 218. Opposed to nine years' citizenship as qualification of Senator, 224; each State having one vote in Senate, 227. Sentiments of, respecting holding of office by members of Congress, 249. In favor of States paying members of Congress, 259. Opposed to taxing exports, 296. Vote of, respecting slave-trade, 305. Slavery in, as early as 1630, 454. Parties in, for and against Constitution, 501. Reception of Constitution in, 501. Convention in, to vote on Constitution, 502, 530. Formidable opposition to Constitution in convention of, 529. High rank of, 530. Vacillation of, 530. Revolutionary history of, 530. Anxiety respecting action of, on Constitution, 531. Insurrection in, effect of, 531. Constitution exposed to peculiar hazard in, 531; ratified in, by compromise, 531. Constitution of, excellence of, 531. Parties in convention of, 532. Convention in, amendments to Constitution recommended by, 532, 538, 539; opponents of Constitution in, 533, 534; eminent men in, 534. Probable disastrous effects of rejection of Constitution by, 535. Convention of, proceedings in, 536; discussion in, respecting Hancock's amendments to Constitution, 538; patriotic conduct of, 539. Enthusiasm kindled by action of, 541. MAZZEI, PHILIP, letter to, by Madison, I. 431. MCKEAN, THOMAS, views of, respecting Constitution, II. 523. Public services of, 524. MIFFLIN, General, sent by Washington to the Congress, I. 98. _Military Posts_, retained by the British after the treaty, I. 256, 259. _Militia_, relation of, to the Continental Congress, I. 35. Committee on, II. 319. Of States, power of general government over, 334; inefficient as troops in Revolution, 334; lack of uniformity among, 335; power of general government over, necessary, 336; how to be disciplined, 337; when Congress may call forth, 338; President commander-in-chief of, 413; cannot call out without authority of Congress, 413. _Ministers._ See _Ambassadors_. _Mint_, establishment of, I. 444. _Mississippi River_, controversy and negotiations respecting navigation of, I. 310; referred to the new government, 327. Navigation of, a topic of opponents of Constitution in Virginia convention, II. 565; Madison's views respecting, 567. _Mississippi Valley_, people of, spirit of the, I. 319; retaliate upon the Spanish authorities, 322; form committees, &c., 323. _Monarchical Government_, dangers of attempting to establish, I. 370. _Monarchy_, detested by people of United States, II. 237, 492. Proposed, rumors of, 492. Attempt to introduce, averted by Constitution, 494. _Money_, power to coin, given to Congress, II. 328; borrow, and emit bills, 328. _Money Bills_, Originated by House of Representatives, II. 146. Provision concerning, objected to, 147; origin of, 214. Originated by House of Commons, 216. Hallam's discussion respecting, 216. Vote of States respecting, 216. Different propositions in Convention respecting, 219. May be amended in Senate, 222. MONTESQUIEU, political discussions of, alluded to, I. 377. MORRIS, GOUVERNEUR, Enters the Revolutionary Congress, I. 127. Birth of, 440. Public services of, 440. Chosen Assistant Financier, 443. Author of the decimal notation, 443. Prepares the text of the Constitution, 444. Character of, 444. First Minister to France, 447. Senator from New York, 447. Invited to write in The Federalist, 447. Death of, 447. Action of, respecting change in rule of suffrage, II. 36. A member of committee to apportion representatives, 148. Views of, respecting Atlantic and Western States, 152; respecting compound ratio of representation, 152. Proviso of, respecting taxation and representation, 158. Views of, respecting choice of executive, 174. Remarks of, respecting slave-trade, 281. In favor of tax on exports, 284. Views of, on concession to Southern States, 293. Committee of compromise proposed by, 301. Proposition of, respecting vacant lands, 355. MORRIS, ROBERT, on a committee to inform Washington of extraordinary powers, I. 101. Laments the absence of some great revolutionary characters, 104. Appointed Superintendent of Finances, 174. Resignation of, 198. _Mutiny_, at Philadelphia, of federal troops, I. 220. N. _Natchez_, seizure of property at, by Spanish authorities, I. 318. _National Government_, how distinguished from "federal," II. 33. Necessities of, 34. To be kept distinct from State governments, 37. By what States preferred, 117. Arguments in favor of, 122; theoretically sound, 126; strengthened by facts of previous history, 127. Supposed tendency of, to absorb State sovereignties, 128. Self-defence a principal object of, 292. _National Legislature_, how to be constituted, II. 35. Divided into two branches, 36. Representation in, diverse views respecting, 36; as affected by State interests, 43; difficulty in fixing ratio of, 43. Unanimity respecting powers of, in Convention, 50. Negative by, on State legislatures, proposed, 51. Must operate directly on people, 63. Proposed powers of, 65. _Naturalization_, a subject of solicitude, II. 196. Formerly a State power, 198, 199. A proper subject of constitutional provision, 200. Power of, transferred from State to national government, 201. Views of Hamilton and Madison respecting, 205. Embarrassments of subject, 205. Uniform rule of, power to establish, given to Congress, 328. _Naval Force_, employment of, in Massachusetts Bay, I. 73. _Navigation Act_, report of committee of detail respecting, II. 290, 301. Position of Southern States respecting, 297. Two-thirds vote proposed by them to be required for, 299. Interest of different States respecting, 301. Passage of, by majority, agreed to, 304. _Navy_, origin of the Revolutionary, I. 73. Want of, II. 298. Power of Congress to provide and maintain, 334; to make rules for, 334. Power of President to employ, 413. President commander-in-chief of, 413. _Newark_, Washington's evacuation of, I. 98. _Newburgh Addresses_, authorship and style of, I. 168. Copy of, sent to the States, 177. Note on, 194. _New England_, confederation of, in 1643, II. 453. _New Hampshire_, a provincial government, I. 4. Ante-Revolutionary government of, 4. Constitution of, formed, 119. Appoints and instructs delegates to the Convention, 369. Late attendance of, in Convention, II. 24. Had three representatives in first House, 149. In favor of property qualification for national officers, 204. Vote of, respecting citizenship, as qualification for office, 209; respecting money bills, 218; respecting slave-trade, 305. In favor of taxing exports, 296. Vote on Constitution in, postponed, why, 510; effect of, on parties in Virginia, 510. Population of, easily led to oppose Constitution, 514. Convention of, to vote on Constitution, 514; members of, instructed to reject Constitution, 529; amendments presented to, 541; majority of, at first opposed to Constitution, 541; adjournment of, effect of, 541. Action of Federalists of, 541. Convention of, meets, on adjournment, 549; anxiety respecting action of, 549. Ratification of Constitution by, 573. Ninth State to ratify Constitution, 578. _New Jersey_, a provincial government, I. 4. Washington's retreat through, 97. Constitution of, formed, 122. Proposal of, in 1778, for the regulation of commerce, 129. Resists the claim of great States to Western lands, 131. Ratifies the Confederation, 135. Action of, commended, 138. Attempts to pay its quotas in paper money, 242. Recommends the regulation of commerce, 277. Appoints and instructs delegates to the Convention, 368. Representation of, concerning the Articles of Confederation, 493. Act of, accepting them, 497. Purely "federal" government proposed by, II. 92. Hamilton's plan of, radical objections to, 99; condemned by Madison, 106. Opposed to division of legislature, 133. In favor of equality of suffrage in House of Representatives, 138; of equal representation of States in Senate, 141, 148, 165. Had four representatives in first House, 149. In favor of census of free inhabitants, 153; of executive holding office during "good behavior," 173. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 216, 218. In favor of each State having one vote in Senate, 227. Vote of, respecting eligibility of members of Congress to office, 251; respecting representation of slaves, 293; respecting slave-trade, 305; respecting admission of States, 354. In favor of taxing exports, 296. Opposed to restricting President to stated salary, 407. Ratification of Constitution by, 515. Convention of, 524. Position of, respecting Constitution, 524. Always in favor of vesting regulation of commerce in general government, 525. Action of, in Constitutional Convention, respecting representation, 525. _New States_, admission of, under the Confederation, I. 292; under the Ordinance of 1787, 308. See _Western Territory_ and _Northwestern Territory_. _New York_, Constitution of, formed, I. 122. Magnanimity of, commended, 137. Action of, upon the revenue system of 1783, 246. Act of, respecting British debts, 253. Trespass act of, 256. Proceedings of, respecting a general commercial convention, 343, 358. Resolution of, for a general Convention, 360; how received in Congress, 360. Appoints and instructs delegates to the Convention, 369. Act of, respecting boundaries, &c., 505. Rank of, at formation of Constitution, II. 118. Commerce of, at formation of Constitution, 118. Views of public men of, 118. Opposed to division of legislature, 133. In favor of equality of suffrage in House of Representatives, 138; in Senate, 141, 148. Had six representatives in first House, 149. Withdrawal of delegates of, from Convention, 165, 182, 484, 502. Rejection of Constitution by, probable, 182. Vote of, respecting money bills, 216. In favor of each State having one vote in Senate, 227. Reception of Constitution in, 502. Executive government of, opposed to Constitution, 502. Jealousy of Union existing in, 502. Letter of delegates of, against Constitution, 502. Proceedings of legislature of, respecting Constitution, 503; of parties in, respecting Constitution, 503. Convention of, to vote on Constitution, 504. Formidable opposition to Constitution in convention of, 529. Legislature of, divided on question of submitting Constitution to people, 536. Convention of, importance of action of, 542; time of meeting of, 549; anxiety respecting action of, 549; met at Poughkeepsie, 549; Hamilton leading spirit in, 568; discussion in, respecting system of representation proposed by Constitution, 573. Opponents of Constitution in, arguments and plan of, 572; Hamilton's reply to, 572. Effect on, of ratification by New Hampshire, 574. Opponents of Constitution in, schemes of, 584. Numerous amendments to Constitution proposed by, 587. Plan of, to adopt Constitution conditionally, 587. Great struggle in, over ratification of Constitution, 588. Circular letter from, to all other States, 588. Federalists of, justified by Washington, 590; complaints against, 591. _New York City_, applies to the Continental Congress respecting British troops, I. 31. Occupied by the British, 91. Temporary establishment of seat of government at, effect of, 591. Celebration in, of adoption of Constitution, 592. Honors paid by, to Hamilton, 592. NICHOLAS, GEORGE, a leading advocate of Constitution in Virginia, II. 506. _Nobility_, title of, cannot be granted by Congress, II. 362. _Non-Intercourse_, when and why adopted by Colonies, I. 23. Association for, recommended and adopted, 24. _North Carolina_, a provincial government, I. 4. Constitution of, formed, 122. Appoints and instructs delegates to the Convention, 369. Opposed to equality of suffrage in House of Representatives, II. 138; to equality of votes in Senate, 141, 217. Vote of, respecting equal vote of States in Senate, 141, 148, 165; respecting census of free inhabitants, 153. Had five representatives in first House, 149. Opposed to executive holding office during "good behavior," 173. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 216, 218. Divided on question of nine years' citizenship as qualification of Senator, 224. Opposed to each State having one vote in Senate, 227; to taxing exports, 296. Position of, in Convention, respecting slave-trade, 297, 301. Vote of, respecting slave-trade, 305; on suspension of habeas corpus, 360. Cession by, in 1790, 357. Opposed to restricting President to stated salary, 407. Convention of, Anti-Federal majority in, 596; debate in, 596; amendments to Constitution proposed by, 597; peculiar action of, 597. Attitude of, placed Union in new crisis, 603. _Northern States_, in favor of granting to government full revenue and commercial powers, II. 292. Chief motive of, for forming Constitution a commercial one, 298. Cut off from British West India trade, 298. Separate interests of, different, 300. _Northwestern Territory_ ceded by Virginia, I. 137, 295. Cession modified, 300. Ordinance respecting, why framed, 301; provisions of, 302; character of, 306. Ordinance for, reported, 452. Cession of, II. 15. Origin and relations of, &c., 341. Jefferson's resolve for organization of States in, 343. Slavery in, proposals for prohibiting, 343. Ceded on what trusts, 347, 349. Admission of new States under, see _New States_. O. _Oath_, of office, proposed by New Jersey in 1778, I. 130. _Oath of Allegiance_, to the King, received by Sir William Howe in New Jersey, I. 106. To the United States required by Washington in New Jersey, 107; dissatisfaction occasioned by, 107. Propriety of, defended by Washington, 108. Prescribed in Congress in 1778, 109. _Obligation of Contracts_, clause respecting, taken from the Ordinance of 1787, I. 452. _Officers_ of United States, appointment of, II. 417. _Officers of the Revolution_, treatment of, by Congress, and the country, I. 159. Pay of, 159. Proceedings in Congress respecting half-pay for, 160. Pennsylvania line, 163. Proceedings of, respecting their pay, 165. See _Army of the Revolution_, _Half-pay_, and _Newburgh Addresses_. _Oligarchy_, detested by people of United States, II. 237. _Orders in Council_, respecting trade with the United States, I. 283. Efforts of Congress to counteract, 285. Effect of, on Northern States, II. 298. _Ordinance of 1787_, framing of, I. 452. Admission of new States provided for by, II. 77. Fixed no mode of admitting new States, 79. Provisions of, 344. Slavery excluded by, 344. Author of, 344, 365. Passed, 365. Character of, 366. Provision in, respecting contracts, occasion of, 366. Extradition of slaves under, 454. _Osnaburg, Bishop of_, rumored purpose of loyalists respecting, II. 492. Afterwards Duke of York, 493. P. PAINE, ROBERT TREAT, delegate to first Continental Congress, I. 13. PALFREY, Colonel, sent to New Hampshire to arrest Tories, I. 65. _Paper Money_, first issued by the Continental Congress, I. 78. Signing of, 78. State systems of, under Confederation, II. 310. See _Rhode Island_. _Pardon_, President's power of, II. 413. See _Treason_. _Parliament, British_, authority of, over trade, how recognized by first Continental Congress, I. 20. Two houses in, origin of, II. 130; mutual relations of, 130. Corruption in, origin and extent of, 242; effect of knowledge of, on framers of Constitution, 243. Necessity of officers of state, &c. sitting in, 254. Analogy of Congress to, 254. PARSONS, THEOPHILUS, motion of, in Massachusetts Convention, to ratify Constitution, II. 537. Form of ratification and proposed amendments drawn by, 541. _Patents_ for useful inventions, subject of, brought forward by Pinckney, II. 339. State legislation concerning, 339. Power over, surrendered to Congress, 339. PATTERSON, WILLIAM, mover of New Jersey plan of government, II. 93. Arguments of, in Convention, 93. _Peace_, effect of, upon the country, I. 179. See _Treaty of Peace_. _Peace Establishment._ See _Washington_ and _Hamilton_. PENDLETON, Chancellor, a leading advocate of Constitution in Virginia, II. 506. _Pennsylvania_, a proprietary government, I. 5. Constitution of, formed, 122. Stop-law of, 253. Appoints and instructs delegates to the Convention, 368. Had but one chamber in legislature, II. 132. Opposed to election of Senators by State legislatures, 135; to equality of suffrage in House of Representatives, 138; to equal representation of States in Senate, 141, 148, 165, 217. Had eight representatives in first House, 149. In favor of census of free inhabitants, 153; of executive holding office during good behavior, 173. Opposed to property qualification for office, 189. Constitution of, citizenship under, 206. Vote of, respecting citizenship as qualification for office, 209; respecting money bills, 218. Opposed to nine years' citizenship as qualification of Senator, 224; to each State having one vote in Senate, 227; to impeachments being tried by Senate, 262. In favor of taxing exports, 296. Vote of, respecting slave-trade, 305. Ratification of Constitution by, 515. Convention of, first to meet, 519. Second State in population, in 1787, 519. Western counties of, insurrection in, 521; opposition of, to Constitution, 524. _People of America_, when not associated as such, I. 16. Sole original source of political power, II. 38, 471, 482. Will of, how to be exercised, 471; on a new exigency, how to be ascertained, 483. _Petition_, right of assembling for, asserted, I. 23. Of Continental Congress to the King, 23, 38. _Philadelphia_, threatened loss of, to the enemy, I. 99. Falls into the hands of the enemy, 113. Fought for, at the battle of the Brandywine, 113. The scene of many great events, II. 519. Demonstration at, in honor of adoption of Constitution, 582. PICKERING, TIMOTHY, suggests academy at West Point, I. 218. PINCKNEY, CHARLES COTESWORTH, Revolutionary services of, I. 454. Views of, respecting the requisite reform, 455; on the slave-trade, 456, 459, 460; respecting consequences of rejection of Constitution, 487. Proposition of, respecting taxes on exports, II. 189; respecting extradition of slaves, 189, 452. Notifies Convention of position of South Carolina concerning tax on exports, 280. In favor of Constitution, 510. Writes to Washington of adoption of Constitution by South Carolina, 544. Fidelity of, to South Carolina, 545. Arguments of, in South Carolina convention, 548. PINCKNEY, CHARLES, plan of government submitted by, II. 32. Proposition of, respecting House of Representatives, negatived, 40. Suggestions of, respecting public debt, revenue, &c., 319. In favor of Constitution, 510. _Piracy_, nature of, II. 331. Power of Congress to define and punish, 331. PITT, WILLIAM, designs commercial relations with the United States, I. 282. His bill to effect them, 283. His extraordinary opportunities, 413. Estimate of, 414. _Political Science_, among the ancients, I. 374. In the Middle Ages of Europe, 375; in England, 376; in France, 377. _Popular Governments_, American theory of, I. 261. _Population_ of States in 1790, table of, II. 55. _Ports_, no preference to be given to, II. 324. _Post-Office_ department, Continental, first established, I. 35; colonial, 433. Power to establish, extended to post-roads, II. 328. _Preamble_ of Constitution, as reported and adopted, II. 372; language of, important, 373. _President_, making of treaties by, with consent of Senate, II. 234. Officers proposed to be appointed by, with consent of Senate, 234. Re-eligibility of, arguments in favor of, 235. Choice of, proposed method of, 235; by Senate, objections to, 236, 392; ultimate, by House of Representatives, 240, 394. Revisionary control over, where to be lodged, 239. Extensive patronage of, 252. Subject to impeachment, 261; for what causes, 397. Veto power of, 264. Objections of, to law, to be entered on journal of Congress, 264. Choice of, direct, by people, negatived, 388; by electors, objections to, 388; advantages of, 389; method of, 390. Term of office of, proposed to be seven years, 392. Choice of, by majority of electors, objections to, 393. Vacancy in office of, 397; when Congress to provide for, 401. "Inability" of, to discharge duties, meaning of, 397; how ascertained, 397. Insanity of, 397. Death of, and of Vice-President, 398. Choice of, changes in mode of, 400; if not made before 4th of March, 400; by House of Representatives, to be from three highest candidates, 400. Qualifications of, 404. Pay of, arguments in favor of, 404; not to be increased nor diminished during term of office, 406. Forbidden to receive more than stated salary, 407. Council for, question concerning, 407. May require opinions of cabinet officers, 408. Alone responsible for conduct of executive department, 409. Powers of, 409; to make war and peace, 411; over State militia, 413; to pardon offences, 413; to appoint officers, 417. "Executive power" vested in, meaning of, 412. Oath of, to execute laws, 412. Commander-in-chief, 413. To prosecute war, 413. Treaty-making power of, 414. To receive ambassadors, &c., 415. Cannot create offices, 418. To inform Congress of state of Union, 419. To recommend measures to Congress, 419. May call extra sessions of Congress, 419. When may adjourn Congress, 419. PRINGLE, JOHN JULIUS, in favor of Constitution, II. 510. _Prize-Courts_, want of, under the Revolutionary government, I. 73. Establishment of, urged by Washington, 75. Of Massachusetts, trials in, 75. Colonial, appeals from, to Congress, 76. Under Constitution, II. 330. _Property_, urged as basis of representation, II. 148. As a qualification of elector, 148; for office, 187, 202. _Proprietary Governments_, form and character of, I. 5. _Protections_, issued by Sir William Howe in New Jersey, I. 106. Surrender of, required by Washington, 106. _Provincial Governments_, form and character of, I. 4. _Public Lands._ See _Western Territory, Northwestern Territory_, and _Ordinance of_ 1787. Q. _Qualifications_, of national officers, proposals respecting, II. 186; landed, rejected, 187; property, an embarrassing subject, 202. Of electors, 187, 194, 200. Of voter in Massachusetts, 188. Of members of Congress, 194. Of citizenship, embarrassments respecting, 205; attempt to exempt certain persons from rule respecting, 205. Of Senators, 223. Of Vice-President, 401. Of President, 404. Of religious test, never to be required, 479. _Queen's County, Long Island_, inhabitants of, to be disarmed, I. 68. _Quorum_, discussions in Convention respecting, II. 262. _Quotas_, first apportionment of, among the Colonies, I. 34. Of troops in 1776, 92. See _Requisitions_. R. RAMSAY, DAVID, Dr., in favor of Constitution, II. 510. RANDOLPH, EDMUND, urges Washington to attend the Convention, I. 365. Revolutionary services of, 480. Governor of Virginia, 481. Course of, in the Convention, 481. Reasons of, for supporting the Constitution, 481. Genealogy of, 485. Plan of government proposed by, II. 32, 410. A member of committee to apportion representatives, 148. Objections of, to compound ratio of representation, 151. Proposition of, respecting census, 162; to strike out "wealth" from rule of representation, 164. In favor of confining equality of States in Senate to certain cases, 165. Views of, respecting money bills, 218. Resolution of, respecting admission of new States, 349. Clause introduced by, respecting death of President, &c., 403. Refused to sign Constitution, why, 485, 555. Position of, respecting Constitution, 506. Advocated adoption of Constitution in Virginia convention, 556. RANDOLPH, PEYTON, President of first Continental Congress, I. 13; of second Continental Congress, 28. Death and character of, 28. _Ratification_ of Constitution, as marking character of government, II. 85. Different theories respecting, 177. Mode of, 375; resolutions respecting, 375; purpose of, 375; an embarrassing question, 479. Vote of States respecting, 483, 515. By only part of States, effect of, 484. Unanimous, could not be required, 484. By nine States sufficient, 485. Pageants in honor of, 540. Public rejoicings in Baltimore at, 543. By New Hampshire, 573, 578. By Virginia, 578; how finally effected, 579; form of, 581. Vitiated by condition, in Madison's opinion, 588. Great struggle over, in New York, 588. See the different States. _Records and Judicial Proceedings_ of States, full faith to be given to, in other States, II. 449. Proof and effect of, 449. READ, GEORGE, views of, respecting rule of suffrage for House of Representatives, II. 135. _Regulation of Commerce_ proposed by New Jersey in 1778, I. 129. Not provided for by the Confederation, 148. Advantages of, not perceived, 179. Origin of, as a national power, 276. Washington's views respecting, 334. Popular meetings in Boston in favor of, 336. Policy of Congress respecting, in 1785-86, 337. _Representation_, views of members of Convention respecting, II. 18. In Congress, different views respecting, 36; difficulty in fixing ratio of, 44. As affected by State interests, 43. Original division between States respecting, 50. Under Virginia and New Jersey plans, 105. Great difficulty in adjusting, 108. Difficulty of fixing different basis of, for two houses of Congress, 133. Committee to adjust whole system of, 145. Dr. Franklin's proposal in Congress concerning, 146. Ratio of, in House of Representatives, 147. Of slaves, 149. Compound ratio of, depending on numbers and wealth, proposed, 149; objections to, 151; how to be applied, 156. By numbers, as affected by slaves, 153, 291. And taxation to go together, 156. System of, proposed by Constitution, discussion on in New York, 573. _Representatives_, part of the Provincial government, I. 4. In the charter governments, how chosen, 5. Apportionment of, objections to, II. 148; in first House, how made, 148. _Representative Government_ familiar to the American people, I. 117. _Reprisals_ authorized by the Continental Congress, I. 34. _Republican Government_ involved in the effort to make the Constitution, I. 391. Guaranteed to States, II. 177; by Constitution, 458. Guaranty of, to States, object of, 468; meaning of, in America, 469. _Republican Liberty_, nature of, II. 8. How to be preserved, 9. _Resolutions_ as referred to committee of detail, II. 190. _Requisitions_, provision for, under the Confederation, I. 147. Of 1781, 156. Made and not complied with, 174. From 1782 to 1786, how treated, 180. In 1784, 240. In 1785, 242. In 1786, 242. Supply received from, in 1781-1786, 243; inadequacy of, declared by Congress, 245. Effect of, on the proposed revenue system, 244. _Revenue_, report of committee of detail respecting, II. 289. Power over, generally conceded to new government, 290. Different systems of, under Confederation, 310. Powers of government, influence of, 311. Power, qualifications of, proposed, 320. From imports, easiest mode of paying expenses of government, 528. _Revenues_, of the Confederation, I. 147. Want of power in Confederation to obtain, II. 280. Numerous questions respecting, 280. Collection of, by Congress, 323. _Revenue Bills_, privilege of originating, views of members of Convention respecting, II. 221; restricted to House of Representatives, 221. _Revenue System of_ 1783, origin and purpose of, I. 175. Modified by Congress, 180. Defeated by New York, 180. Design of, 185. Effect of its proposal, 186. Character of, 224. Under consideration in 1784, 240. How acted on in 1786, 244. New appeal of Congress on the subject of, 245. Every State assents to, but New York, 246. Act of New York concerning, 246. Hamilton's answer to the New York objections to, 247. New York again appealed to respecting, 247; refuses to accede, 248. Action of New York respecting, 343. Final appeal of Congress for, 344. Rejected by New York, 345, 359. Address on, written by Madison, 422. _Revolution_, right of, II. 473. _Revolutionary Congress_, take up the Articles of Confederation, I. 113. Government of, breaking down, 115. Change in the members of, after 1777, 125. Leading members of, in 1777 and 1778, 126; in 1776, 127. Weakness of, II. 14. See _Congress_. _Revolutionary Government_, defects of, I. 55. _Rhode Island_, a charter government, I. 5. Resists the claim of the great States to Western lands, 131. Refuses to grant imposts to Congress, 174. Hamilton's answer to, 177. Attempts to pay its quotas in paper money, 242. Refusal of, to grant duties on imposts, 422. Not represented in Constitutional Convention, II. 23, 181. Did not assent to revenue system of 1783, 24. Admitted to Union in 1790, 25. Interests of, attended to by Convention, 26. Had one representative in first House, 149. Ratification of Constitution by, improbable, 181. Reason of, for not attending Convention, 329. Took no part in formation of Constitution, 484. Opposition to Constitution in, peculiarly intense, 598; causes of, 598. Jealous of other States, 598. Principles of founders of, falsely applied, 598. Paper money party in, great power of, 599. Great antagonism in, between town and country, 600. Opponents of Constitution in, ridiculed and scorned, 600. Great want of enlightenment in, 601. Action of General Assembly of, on Constitution, 602. People of, apparently nearly unanimous against Constitution, 602. Final prevalence of better counsels in, 603. Present prosperity of, 603. Attitude of, placed Union in new crisis, 603. _Rights._ See _Colonies_. ROBINSON, Mr., Speaker of Virginia House of Burgesses, I. 48. Celebrated compliment of, to Washington, 48. ROUSSEAU, J. J., political discussions of, alluded to, I. 377. _Rule of Apportionment_, proposal to change from land to numbers, I. 241. RUTLEDGE, EDWARD, in favor of Constitution, II. 510. Arguments of, in convention of South Carolina, 548. RUTLEDGE, JOHN, a member of committee to apportion representatives, II. 148. Motion of, for assumption of State debts, 319. In favor of Constitution, 510. S. _Seat of Government_, action respecting, II. 189. None under Confederation, 268. History of establishment of, 268. Grave questions concerning location of, 274. Impolicy of establishing at New York, or Philadelphia, 591. Embarrassments attending selection of, 604. _Sectional Jealousy_, causes and operation of, I. 371. SELMAN, captain in the Revolutionary naval force, I. 74. _Senate_, reasons for present constitution of, II. 41. Rule of suffrage in, 48. Numerical representation in, favored at first, 49. To hold office during "good behavior" under Hamilton's plan, 100, 105. Members of, chosen for six years, 134; qualifications of, 134, 223. Objects of, 138; how to be attained, 138. Difficulty in fixing basis of, 139. Mr. Baldwin's model of, 139. Fortunately not founded on relative wealth of States, 140. Votes of States respecting, 141; representation in, 165. Advantages of present constitution of, 166. Members of, to be two from each State, 186; to vote per capita, 186; must have been citizens nine years, 211. Slight analogy of, to House of Lords, 215. Equality of votes in, by what States resisted, 217. Choice of President by, in certain events, proposed, 221, 390. Scheme of, tending to oligarchy, 222. May amend revenue bills, 222. Powers of, as at first proposed, 223. Number of members of, origin of, 224. Method of voting in, origin of, 224. Present mode of voting in, advantages of, 228. Vacancies in, how filled, 229. Primary purpose of, 229. Disposition to accumulate power in, 230. Constitution of, great embarrassments respecting, 233. Separate action of, difficult to determine, 234. Consent of, to certain acts of President, necessary, 235. Proposed choice of President by, objections to, 236. Only body fit to have revisionary control over appointments, 239. Ratification of treaties by, 240. Ultimate choice of President taken from, 240. Length of term in, 240. Biennial change in, 241. To try impeachments, 261. Quorum of, 262. President of, 263. May choose president pro tempore, 264. Choice of President by, quorum for, 401; majority necessary to, 401. President pro tempore of, when to act as President of the United States, 403. Proposed appointment of ambassadors and judges by, 410. Foreign relations committed to, 410. Treaty-making power of, 415. May propose treaty to President, 417. Certain controversies between States, proposed to be tried by, 424. Equality of States in, guaranteed by Constitution, 478. _Shays's Rebellion_, causes of, I. 266. Progress of, 266, 269. How arrested 270. How acted upon in Congress, 271. Effect of, upon the political state of the country, 273. Abettors of, opposed to Constitution, II. 501. SHERMAN, ROGER, one of the committee to prepare Declaration of Independence, I. 50. Opposed to tax on exports, II. 294. Views of, respecting tax on slaves, 304. Motion of, respecting payment of old debts, 321. _Slavery_, British government responsible for the existence of, I. 87. Complex relations of, II. 22. Regarded by Southern statesmen as an evil, 155. When and how abolished in States now free, 289. Existed in what States at formation of Constitution, 313. Facts respecting, as influencing judgment on Constitution, 313. A matter of local concern, 313. State laws respecting abolition of, 313. In Northwestern Territory, proposals for excluding, 343. State of, in 1787, 451. Probable duration of, 451. Principle of common law and law of nations respecting, 451, 455. Exclusively a matter of State jurisdiction, 451. Existed in Colonies at very early period, 453. In Massachusetts, Dr. Belknap's article on, 454. Depends wholly on municipal law, 457. Fortunately left to State control, 459. Existence of, unjustly made a reproach on United States, 465. _Slaves_, as affecting ratio of representation, II. 19. Control of States over, never meant to be surrendered, 20. Necessarily regarded in forming Constitution, 20. As affecting basis of representation, 46. In fixing ratio of representation, included as inhabitants, 47. Three-fifths rule respecting, whence derived, 48. In fixing ratio of representation, how computed, 147; admission of, proper, 147. Propriety of counting, as inhabitants, in adjusting representation, 150. Rule respecting, under Confederation, 150. As affecting representation, votes respecting, 153. Social and political condition of, anomalous, 155. Number and distribution of, 155. An important element in determining rank of States, 155. As affecting representation and taxation, 157. As subjects of taxation, views of statesmen respecting, 159. Compromise respecting, how to be effected, 163. Extradition of, Pinckney's proposition concerning, 189. Manumission of, a matter of State control, 286. Representation of, a concession by North, why made, 292; Morris's motion respecting, 293; vote of New Jersey respecting, 293. Specific tax on importation of, 304. Word not used in Constitution by design, 305. Ratio of increase of, from 1790 to 1850, 308. Condition of, ameliorated by Constitution, 316. Advancing public sentiment concerning, 316. Colonization of, in Africa, 317. Representation of, an unimportant anomaly, 317. Emancipation of, a local question, 317. Extradition of, under Constitution, history of clause respecting, 450; a necessary provision of Constitution, 451; under New England Confederation of 1643, 453; under Ordinance of 1787, 454; importance of proper understanding of clause respecting, 456; necessity and propriety of clause, 459. Condition of, much better under State control, 462. Increase of, since adoption of Constitution, 465. See _Federal Census_. _Slave-Trade_, discountenanced by first Continental Congress, I. 24. How dealt with by the Constitution, 456. Abolished in England, 457, 461. French abolition of, 457. Danish abolition of, 459. Compromise respecting, 460. Legislation against, 460. Discussions respecting, in England, 460. Probable encouragement of, II. 153; embarrassments respecting, 281. State action respecting, 285. Necessity of definite provision respecting, 285. Duty of framers of Constitution respecting, 286. Had been abolished by no nation in 1787, 286. A proper subject for national action, 286. Aspect of, political, 287; moral, 287. Economical importance of, to Southern States, 288. Report of committee of detail respecting, 290. Grave questions concerning, 296. Right to continue, insisted on by what States, 297, 301. Prospective prohibition of, provided for, 304. Concessions respecting, timely, 305. Vote of States respecting, 305. Patriotic course of both sections respecting, 306. Effect of discontinuance of, on Southern States, 308. State rights respecting, before Constitution, 314. Tolerated by European nations at formation of Constitution, 314. Interdicted by ten States before Constitution, 314. Refusal of certain States to grant power to suppress, immediately, 315. Indefinite continuance of, had Constitution not been formed, 315. First extinguished by America, 317. _South Carolina_, a provincial government, I. 4. Constitution of, formed, 120. Tender-law of, 253. Appoints and instructs delegates to the Convention, 369. Opposed to equality of suffrage in House of Representatives, II. 138; equal vote of States in Senate, 141, 148, 165, 217. Had five representatives in first House, 149. Opposed to census of free inhabitants, 153; executive holding office during "good behavior," 173. Vote of, respecting citizenship as qualification for office, 209; money bills, 216, 218. Opposed to each State having one vote in Senate, 227. In favor of States paying members of Congress, 259. Refusal of, to submit to tax on exports, 280, 285. Exports of, in one year, 285. Position of, in Convention, respecting slave-trade, 297, 301. Vote of, respecting slave-trade, 305. Vote on Jefferson's resolve concerning Northwestern Territory, 346. Cession by, in 1787, 356. Vote of, on suspension of habeas corpus, 360. Condition of acceptance of Constitution by, 452. Motion for surrender of fugitive slaves made by, in Constitutional Convention, 453. Vote of, respecting citizenship clause in Constitution, 453. Debate in legislature of, on Constitution, 510. Convention in, to vote on Constitution, 511; importance of action of, 542. Ratification of Constitution by, 544; rejoicings at, 544; importance of, 544. Delegates of, responsibility assumed by, 544. A great exporting State, 546. Hesitation of, to concede power to regulate commerce, 546. Amendments to Constitution proposed by, 548. Eighth State to ratify Constitution, 549. _Southern States_, views of, respecting regulation of commerce, II. 290. _Sovereignty_, of the people, established by the Revolution, I. 379; necessary consequences of declaration of, II. 8. Resides in the people, 38. Powers of, may be exercised by different agents, 377. _Spain_, claims the exclusive navigation of the Mississippi, I. 312. See _Mississippi_. _Speaker_, of House of Representatives, II. 264; when to act as President, 403. _Standing Armies_, jealousy of, I. 81, 90. _States_, interests and relations of, before Constitution, II. 5. Devotion of, to republican liberty, 6. Union of, essential to republican liberty, 9. Weakness of, without union, 9. General purposes of, in calling Constitutional Convention, 16. Position of, in Convention, 27. Powers surrendered by, to Confederation, 27. Why represented in Congress, 40. Diverse interests of, as affecting representation, 43. Tendency of, to encroach on federal authority, 51. Proposed control over legislation of, by Congress, 52. Population of, in 1790, table of, 55. Legislation of, control of judicial department over, 66. Admission of, 75, 79, 109, 176, 340, 344, 350, 354. Cessions by, to Union, 76. Republican government guaranteed to, 79, 83, 177, 458. Jealous of general government, 91. Sovereignty of, how reconciled with national sovereignty, 91. Plan to abolish, 92. To make partial surrender of power under Virginia plan, 95. Sovereignty of, preserved under New Jersey plan, 95. Conflicts of, with nation, probable, under Virginia plan, 102, 103. Struggle between large and smaller, respecting representation, 104. Proposed equalization of, 108. Populations of, at formation of Constitution, 116. Relative rank of, at formation of Constitution, 117. Conflict among, as to national and federal systems, 117. Danger of annihilation of sovereignty of, by national government, 128, 377. Danger of alliances of, with foreign powers, 136. Preservation of, in Congress, conceded to be necessary, 139. Divided respecting constitution of Senate, 145. Jealousy among, 150. Western, views of members respecting, 150. Slave and free, index of wealth of, 157. Wealth of, not measured by land, 160. Position of, in Convention, respecting slaves, 161, 162. Wealth of, for purpose of taxation, determined by inhabitants, 163. Smaller, concession to, in constitution of Senate, 166. Free and slave, populations of, compared, 168. Relation of, to Confederation, 179. Whether Constitution could be ratified by government of, 180. Voting by, history of practice of, 227. Equal representation of, in Senate, just, 233. Union desired by, from different motives, 303. Commercial legislation of, under Confederation, various, 310. Revenue and paper-money systems of, under Confederation, various, 310. Rights guaranteed to, by Constitution, 314. Power of, over slave-trade, anterior to Constitution, 314. Ports of one, not to be preferred to those of another, 324. Compacts between, outside of Articles of Confederation, 347. New, temporary governments for, Madison's motion respecting, 351. Admission of, number of votes requisite for, 352; by dismemberment of State, 352; by junction, 354; difference in cases of, 357; provisions for, general, 358. Restraints on political power of, 362. Issuing of bills of credit prohibited to, 364. Laying of duties and imposts by, 368. Cannot lay duty on tonnage, 370. Keeping of troops or ships of war by, 371. Agreements by, with another State or foreign power, 371. When may engage in war, 371. Governments of, how far supreme, 377. May be multiplied indefinitely under Constitution, 383. Levying war against, not treason against United States, 385. Certain controversies between, proposed to be tried by Senate, 424. Constitutional restrictions on, 432. Laws of, constitutionality of, how determined, 439. Courts of, not likely to administer justice to foreigners, &c., 442. Different, controversies between citizens of, 442; grants of lands by, jurisdiction of cases respecting, 444. A party to a suit, jurisdiction in cases of, 444. Foreign, jurisdiction in cases of, 444. Full faith given to acts, &c. of, 449. Have exclusive regulation of domestic institutions, 451. May exclude foreigners, 457. Republican government guaranteed to, object of, 468. Domestic violence in, application to general government in case of, 469. Competency of, to abolish constitutions, 469. Must have executive and legislature, 470. Protection of, against domestic violence, 472. Equality of, in Senate, for ever guaranteed by Constitution, 478. Refusal of, to comply with requisitions of Congress, 572. See _New States_. _State Constitutions_, formation of, I. 116. _State Governments_, how formed, I. 36. _State Sovereignty_, early assertion of, I. 90. _Stop Laws._ See _Debts_. STORY, JOSEPH, views of, respecting President's power to adjourn Congress, II. 420. _Suffrage, Rule of_, Governor Randolph's resolution respecting, II. 35. Change in, opposed by Delaware, 36. In Continental Congress, 42. In Confederation, 42. In Senate, 48. For House of Representatives, great debate on, 135. According to Virginia plan, 145. Different in different States, 174, 198. Not universal in any State, 471. SULLIVAN, General, president of New Hampshire Convention, II. 541. SULLIVAN, JAMES, Governor of Massachusetts, II. 541. _Superintendent of the Finances_, appointed, I. 174. See ROBERT MORRIS. _Supremacy_ of United States, meaning and scope of, II. 376. Of States, extent of, 377. Of Constitution, as affecting national growth, 383. _Supreme Court_, tenure of office of, II. 67. Judges of, not removable by address, 68, 73; compensation of, 68; by whom appointed, 68. To determine constitutional questions, 74. Functions of, compared with those of State courts, 74. Judges of, proposed appointment of, by Senate, 223, 230, 410. Appointment of, proposals concerning, 234. Sole interpreters of Constitution, 380. Judges of, to be nominated by President, 418; tenure of office and salaries of, 423. One, under Constitution, 423. Original and appellate jurisdiction of, 424. Appellate jurisdiction of, ambiguity concerning, 428. Doubts about conferring power upon, to declare law unconstitutional, 434. T. TALLEYRAND, Prince, opinion of, respecting Hamilton, I. 410. _Taxation_, right of, denied to Parliament, I. 20. How distinguished from regulation of trade, 20. Inseparable from representation, 20, II. 157. Difficulty of applying combined rule of wealth and numbers to, 158. Report of committee of detail respecting, 290. By general government, Mason's objections to, 557. See _Colonies_. _Taxes_, odious to the people of United States, I. 180. Power of Congress to collect, II. 322. _Tender_, State laws respecting, restraint on, II. 365. _Tender Law_ of Massachusetts, I. 268. See _Debts_. _Territory_, power of Congress over, under the Confederation, I. 141. Authority of Congress over, under Constitution, II. 340; purpose of provision respecting, 355; diverse views concerning, 358. See _Western Territory_ and _Northwestern Territory_. _Territorial Governments_, power to frame, in Ordinance of 1787, II. 345. _Theory_, danger of adhering too firmly to, II. 129. THOMPSON, CHARLES, Secretary of first Continental Congress, I. 14. TICKNOR, GEORGE, cited for a saying of Jefferson concerning the Revolutionary Congress, I. 64; for a saying of Talleyrand about Hamilton, 410. _Tonnage_, duty on, States prohibited to lay, II. 370; proposed exception respecting, 370. _Tories_, how dealt with by Continental Congress, I. 36; in New Hampshire, 65. Washington's opinion respecting, 65. Movements of, in the neighborhood of New York, 66; how met by Washington, 66. Steps taken by Congress to disarm, 68. Misunderstanding respecting, between Washington and Congress, 69. Subject referred to local authorities, 72. Relations of persons and property of, to the Union, 251. _Trade_, inter-colonial, before the Revolution, I. 9. Regulation of, by Parliament, distinguished from taxation, 20. With Colonies prohibited by Parliament, December, 1775, 38. See _Colonies_, _Commerce_, _Continental Congress_, and _Parliament_. _Treason_, definition of, in Constitution, origin and purpose of, II. 384. Nature of evidence of, 386. Punishment of, to be declared by Congress, 386; how limited by Constitution, 386. President's power to pardon, different views respecting, 414. _Treasury Department_, first established, I. 35. _Treaty_ of amity and commerce with France, Sweden, and the Netherlands, I. 279. Negotiation for, with the Netherlands, 280; with Sweden, 281. _Treaty of Alliance_ with France, I. 156. _Treaty of Peace_ signed and ratified, I. 155, 187, 235, 237. Objects secured by, 249. How violated by certain States, 254, 257. Southern boundary of the United States fixed by, 312. Accompanied by a secret article, 312, 313. Question respecting, II. 415. _Treaty Power_ under the Confederation, I. 325. _Treaties_, supreme law of land, II. 170, 372, 374. Proposition that Senate should make, 223. Negotiation of, by numerous body, embarrassing, 232. Making of, proposals concerning, 234. Provision respecting, origin of, 240; how modified, 414. Rule of Confederation respecting, 416. May be proposed by Senate, 417. Jurisdiction over cases arising under, 430. Cases arising under, how settled, 440. Power to make, under Confederation, 440. _Trial by Jury_, of the vicinage, one of the rights of the Colonies, I. 23. Under Constitution, II. 424. Provision for, in civil cases, not in Constitution originally, 427; supplied by amendment, 427. Guaranty of, required by many States, 429. For crimes, provisions respecting, 431. Omission to secure, a strong argument with some against Constitution, 498. TUCKER, GEORGE, cited about Madison, I. 421. TYLER, JOHN, opposed to Constitution, II. 506. U. _Union_, origin of, I. 3. Unknown to the colonial condition, 7. Power to form, a result of the Revolution, 8. Proposal of, in 1754, 8. Proposed in 1773, 10. Virginia recommends, 11, II. 12. As established by the Confederation, I. 142. Saved by the proposal of the revenue scheme, 188. Necessary to preserve the good faith of the country, 189. Of the people, idea of, 373. Change in character of, II. 4. Necessarily republican, 10. Preservation of, essential to independence of States, 10. Purposes of, at first indefinite, 12. Previous history of, important, 13. "Exigencies of," 13; how only to be provided for, 19. Objects of, embraced in two classes, 13; how ascertained, 13; different views respecting, 39. Proposed power in, to protect and uphold governments of States, 79. Dissolution of, Madison's views respecting, 136; Hamilton's views respecting, 136; at one time probable, 140. General interests of, power to legislate for, 170. Success of, to what attributable, 380. Sovereignty of, and of States, no conflict between, 380. Capacity of, for territorial expansion, cause of, 381. Theory of, respecting domestic institutions of States, 451. "_United Colonies_," term of, first adopted, I. 33. _United States of America_, title of, adopted, I. 52, 142. _United States_, character of, at stake, I. 179. Laws and treaties of, supreme law of States, II. 170, 372. Guaranty by, of State institutions, 177. Became proprietor of crown lands, 352. Title of, to vacant lands, 357. Officer of, not to accept present, &c. from foreign king, &c., 362. Resolutions respecting supremacy of government of, 372, 373. Supremacy of, meaning and scope of, 376. Government of, unlike any other, 379; determines its own powers, 379; safeguard of, 379; success of, to what attributable, 379. Constitution, no impediment to growth of, 383. Treason against, definition of, 385. Importance of preserving federal character of government of, 392. Relation of government to citizens of, 432. A party to a suit, jurisdiction of cases of, 444. V. _Valuation._ See _Land_ and _Contribution_. _Vermont_, provision for admission of, II. 353. Within asserted limits of New York, 353. _Vessels_, entry and clearance of, II. 324. Payment of duties by, 324. _Veto_, an essential power, II. 57. Bill may be passed notwithstanding, 264. Of President qualified, 265. Of king of England absolute, 265; how signified, 265; in disuse since William the Third, 266. History of, in Constitutional Convention, 267. Meaning of "two thirds" in provisions respecting, 267. Power of, proposed to be given to Council of Revision, 438. _Vice-President, ex officio_ President of Senate, II. 264. Has only casting vote in Senate, 264, 396. Choice of, embarrassments respecting, 390. Reasons for having, 395. Ultimate election of, by Senate, 396, 401. When to act as President, 400. Changes in appointment of, 400. Qualifications for, 401. _Virginia_, a provincial government, I. 4. Advises a Continental Congress, 11. Elects delegates, 12. Constitution of, formed, 120. Effect of claim of, to Western Lands, 132. Cedes the Northwestern Territory, 137, 295. Repeals her act granting imposts, 175. Stop-law of, 253. Action of, concerning Western posts, 258. Opposes the surrender of the Mississippi, 315. Action of, leading to a general commercial convention, 340, 343. Appoints and instructs delegates to the Convention, 367. Measures of, respecting commerce, 423. First to declare for Union, II. 12. Plan of government proposed by, 89; Hamilton's doubts respecting, 99; inconsistency in, 101, 103; reported to Convention, 109; vote on, 109; chasm in, 133. Opposed to election of Senators by State legislatures, 135; to equality of suffrage in House of Representatives, 138; to equality of States in Senate, 141, 148, 165, 217. Had ten Representatives in first House, 149. In favor of census of free inhabitants, 153; of executive holding office during "good behavior," 173. Vote of, respecting citizenship as qualification for office, 209; money bills, 216, 218. Opposed to each State having one vote in Senate, 227; to impeachments being tried by Senate, 262; to taxing exports, 296. Vote of, respecting slave-trade, 305. Cession by, in 1784, 342. Strong opposition to Constitution in, 504. Statesmen of, 504. Character of people of, 504. Great influence of Washington in, 505. Effect of action of New Hampshire on, 510. Convention of, meets at Richmond, 510, 549; parties in, nearly balanced, 529, 568; anxiety respecting action of, 542, 549; eminence of members of, 551; responsibility resting on, 551; discussion on Constitution in, 554. Had ratified Constitution before news from New Hampshire, 578. Convention of, final propositions of friends of Constitution in, 579. Ratification of Constitution by, how finally effected, 579. Form of amendments and Bill of Rights proposed by, 581. Address prepared by opponents of Constitution in, 582. Adoption of Constitution by, rejoicings at, 582. _Virginia and Maryland_, efforts of, to regulate the trade of the Potomac and the Chesapeake, I. 341. _Virginia Reservation_, note on, I. 296. _Voters_, qualifications of, in different States, II. 198. W. _War_, power to declare, proposed to be given to two branches of Congress, II. 231. To be declared by Congress, 332, 413. When States may engage in, 371. Ships of, not to be kept by States in time of peace, 371. And peace, power of President to make, 411. To be prosecuted by President, 413. WASHINGTON, appointed and commissioned commander-in-chief, I. 33. Arrives at Cambridge, 33. Mode of his appointment as commander-in-chief, 41. Previous history and character of, 41. Embarrassments of, in the early part of the war, 55. Opinions and actions of, respecting Tories, 65. Urges Congress to establish prize court, 75. On the necessity for a standing army, 91. Leaves Boston for New York, 91. Compelled to abandon New York, 91. Retreats through New Jersey, 96. Complains of his situation, 96. Asks for extraordinary powers, 100. Dictatorial powers conferred on, 100; apology for, 101. Requires oath of allegiance to United States, 106. Proclamation by, at Morristown, in 1777, 106. Powers conferred on, in 1776, jealousy respecting, 106. Opinion of, respecting an oath of allegiance, 108. Third effort of, to raise a new army, 109. Embarrassments of, 110. Thwarted by the local authorities, 112. Adheres to a plan for the campaign, 112. Anxious about the falling off of Congress, 127. Letters of, to the States, in 1782, 157; to the President of Congress, 158, 162. Situation of, 158. Warns Congress respecting the officers, 167. Painful position of, 167. Proceedings of, upon the Newburgh Addresses, 168. On the want of a revenue power, 182. Relations of, to the country during the war, 200. Opinions of, at the close of the war, 200. Address of, to the States, on resigning, 201. On a peace establishment, 218, 219. Resigns as commander-in-chief, 235. Address to, 235. On the insurrection in Massachusetts, 274. Plans communications with Western settlements, 310. Opinions of, respecting the navigation of the Mississippi, 311, 315. Opinions of, in 1785, on the state of the country, 333. Connection of, with the plan of a general Convention, 341. Pressed to attend the general Convention, 365, 397. On the idea of a monarchical government for the United States, 370. At Mount Vernon, 393. Views of, on public affairs, 394. Declines to attend the general Convention, 399; reconsiders and attends, 399. Reception of, at Philadelphia, 401. Placed in the chair of the Convention, 401. Opinions of, 401. Character of, as a statesman, 404. Meets the Alexandria commissioners at Mount Vernon, 425. Failure of civil power to sustain, II. 14. Difficulty experienced by, as President, in preserving neutrality and excluding foreign influence, 82. In Convention, confined himself to duties of presiding officer, 213. Suggestion of, respecting ratio of representation in Congress, adopted, 213. In favor of tax on exports, 284. Early nominated for President, 391. Received no pay as commander-in-chief, 405. Practice of, respecting cabinet, 409. Leading man in Constitutional Convention, 476. Tradition respecting words of, before signing Constitution, 487. Views of, respecting consequences of rejection of Constitution, 487. Unbounded confidence of people in, 498. Great influence of, in Virginia, 505. Copies of Constitution sent by, with expression of opinion, 509. Opinion of, respecting action of Maryland on Constitution, 542. Not a member of Virginia convention, 551. Justifies course of Federalists in New York convention, 590. Administration of, topics appropriate to history of, 604. _Washington, City of_, an object of affection and pride, II. 277. See _Seat of Government_. WEBSTER, DANIEL, compared with Hamilton, I. 419. WEBSTER, NOAH, recommends a new government, I. 350. WEBSTER, PELATIAH, recommends a general Convention, I. 350. _Weights and Measures_, standard of, fixed by Congress, II. 328. _West Florida_, secret article respecting, in the Treaty of Peace, I. 312. _West Point_, academy at, suggested, I. 218. _Western Lands_, claims of the States to, I. 131. Conflicting interests of the States concerning, 132. Surrender of claim to, by New York, 133. Cessions of, urged by Congress in 1780, 134. Motives of the cession of, 137. Surrender of claim to, by Virginia, 137. Become the bond of the Union, 140. Power of Congress over, under the Confederation, 141. _Western Posts._ See _Military Posts_. _Western Settlements_, position of, after the peace, I. 309. Connection of, with the Atlantic coast, 310. Alarm of, about the Mississippi, 318. _Western States_, prospective character of, II. 300. Vast resources of, 310. _Western Territory_, controversy respecting, before the adoption of Articles of Confederation, I. 291. Cessions of, invited, 292; Congress declares certain trusts respecting, 293. States to be formed in, 293. Power of Congress to deal with, 293. Cession of, by New York, 293; by Virginia, 295. Further legislation respecting, and further trusts declared, 296. Admission of States from, 298. Further cessions of, urged, 299. Proposition by Rufus King to exclude slavery from, 299. Cession of, by Massachusetts, 299; by Connecticut, 300. Ordinance for disposing of lands in, 300. Cessions of, by Virginia, modified, 300; by South Carolina, 301; by North Carolina, 301; by Georgia, 301. See _Northwestern Territory_. _West Indies_, trade with, II. 309. _Whale Fishery_ in Massachusetts before the Revolution, I. 135. _Williamsburg_, convention at, I. 12. WILLIAMSON, HUGH, views of, respecting rule of suffrage for House of Representatives, II. 135; money bills, 218. WILSON, JAMES, birth and career of, I. 462. Sent to the Constitutional Convention, 462. Services of, 462. Made a justice of the Supreme Court of the United States, 465. Death of, 465. His defence of the Constitution, 465. In favor of larger House of Representatives, II. 213; tax on exports, 284. One of the ablest framers of the Constitution, 520. Position and arguments of, in Pennsylvania convention, 521. Views of, respecting Bill of Rights, 522. WOLCOTT, OLIVER, influence of, in Connecticut convention, II. 529. Y. _Yeas and Nays_, one fifth of members present in either House of Congress may require, II. 263. To be taken on passing bill over veto, 265. _Yorktown_, Revolutionary Congress assembles at, I. 113. THE END. * * * * * Transcriber's Notes: Obvious spelling and punctuation errors have been repaired, but period spellings and valid alternative spellings present in the original were retained; for example: maleadministration, malepractice and malpractice, Brearly and Brearley, etc. Hyphenation variations in the original were retained. Change in format for Article headings beginning P. 629 retained as in the original. Changes not covered above are: Contents erroneously states Index begins on P. 623. Corrected to P. 633. P. 298 "Southern members." original reads "Southern membe" P. 605 Duplicate heading "Appendix" removed. P. 622 "Revision and Control"; original reads "Controul." P. 623 "Members from two-thirds"; original reads "twothirds." 
42179	----	Transcriber's note: Text enclosed by underscores is in italics (_italics_). Text enclosed by equal signs is in bold face (=bold=). The book uses both Richelieu and Richlieu. On Page 47, the phrase "any their progenitors" possibly should be "any of their progenitors". Inconsistent hyphenation and spelling in the original document have been preserved. Obvious typographical errors have been corrected. Everyman's Library Edited by Ernest Rhys History HALLAM'S CONSTITUTIONAL HISTORY WITH AN INTRODUCTION BY PROFESSOR J. H. MORGAN * * * * * * THE PUBLISHERS OF _EVERYMAN'S LIBRARY_ WILL BE PLEASED TO SEND FREELY TO ALL APPLICANTS A LIST OF THE PUBLISHED AND PROJECTED VOLUMES TO BE COMPRISED UNDER THE FOLLOWING THIRTEEN HEADINGS: TRAVEL · SCIENCE · FICTION THEOLOGY & PHILOSOPHY HISTORY · CLASSICAL FOR YOUNG PEOPLE ESSAYS · ORATORY POETRY & DRAMA BIOGRAPHY REFERENCE ROMANCE IN FOUR STYLES OF BINDING: CLOTH, FLAT BACK, COLOURED TOP; LEATHER, ROUND CORNERS, GILT TOP; LIBRARY BINDING IN CLOTH, & QUARTER PIGSKIN LONDON: J. M. DENT & SONS, LTD. NEW YORK: E. P. DUTTON & CO. * * * * * * "CONSIDER HISTORY WITH THE BEGINNINGS OF IT STRETCHING DIMLY INTO THE REMOTE TIME; EMERGING DARKLY OUT OF THE MYSTERIOUS ETERNITY: THE TRUE EPIC POEM AND UNIVERSAL DIVINE SCRIPTURE.···" CARLYLE * * * * * * CONSTITUTIONAL HISTORY of ENGLAND HENRY VII TO GEORGE II. by HENRY HALLAM VOL 2 London: Published by J. M. Dent & Sons Ltd and in New York by E. P. Dutton & Co CONTENTS CHAPTER VIII FROM THE DISSOLUTION OF CHARLES'S THIRD PARLIAMENT TO THE MEETING OF THE LONG PARLIAMENT Declaration of the King after the Dissolution -- Prosecutions of Eliot and others for Conduct in Parliament -- Of Chambers for refusing to pay Customs -- Commendable Behaviour of Judges in some Instances -- Means adopted to raise the Revenue -- Compositions for Knighthood -- Forest Laws -- Monopolies -- Ship-Money -- Extension of it to inland Places -- Hampden's Refusal to pay -- Arguments on the Case -- Proclamations -- Various arbitrary Proceedings -- Star-Chamber Jurisdiction -- Punishments inflicted by it -- Cases of Bishop Williams, Prynne, etc. -- Laud, his Character -- Lord Strafford -- Correspondence between these two -- Conduct of Laud in the Church -- Prosecution of Puritans -- Favour shown to Catholics -- Tendency to their Religion -- Expectations entertained by them -- Mission of Panzani -- Intrigue of Bishop Montagu with him -- Chillingworth -- Hales -- Character of Clarendon's Writings -- Animadversions on his Account of this Period -- Scots Troubles, and Distress of the Government -- Parliament of April 1640 -- Council of York -- Convocation of Long Parliament Page 1 CHAPTER IX FROM THE MEETING OF THE LONG PARLIAMENT TO THE BEGINNING OF THE CIVIL WAR Character of Long Parliament -- Its salutary Measures -- Triennial Bill -- Other beneficial Laws -- Observations -- Impeachment of Strafford -- Discussion of its Justice -- Act against Dissolution of Parliament without its Consent -- Innovations meditated in the Church -- Schism in the Constitutional Party -- Remonstrance of November 1641 -- Suspicions of the King's Sincerity -- Question of the Militia -- Historical Sketch of Military Force in England -- Incroachments of the Parliament -- Nineteen Propositions -- Discussion of the respective Claims of the two Parties to Support -- Faults of both Page 85 CHAPTER X FROM THE BREAKING OF THE CIVIL WAR TO THE RESTORATION PART I Success of the King in the first Part of the War -- Efforts by the moderate Party for Peace -- Affair at Brentford -- Treaty of Oxford -- Impeachment of the Queen -- Waller's Plot -- Secession of some Peers to the King's Quarters -- Their Treatment there impolitic -- The anti-pacific Party gain the Ascendant at Westminster -- The Parliament makes a new Great Seal -- And takes the Covenant -- Persecution of the Clergy who refuse it -- Impeachment and Execution of Laud -- Decline of the King's Affairs in 1644 -- Factions at Oxford -- Royalist Lords and Commoners summoned to that City -- Treaty of Uxbridge -- Impossibility of Agreement -- The Parliament insist on unreasonable Terms -- Miseries of the War -- Essex and Manchester suspected of Lukewarmness -- Self-denying Ordinance -- Battle of Naseby -- Desperate Condition of the King's Affairs -- He throws himself into the Hands of the Scots -- His Struggles to preserve Episcopacy, against the Advice of the Queen and others -- Bad Conduct of the Queen -- Publication of Letters taken at Naseby -- Discovery of Glamorgan's Treaty -- King delivered up by the Scots -- Growth of the Independents and Republicans -- Opposition to the Presbyterian Government -- Toleration -- Intrigues of the Army with the King -- His Person seized -- The Parliament yield to the Army -- Mysterious Conduct of Cromwell -- Imprudent Hopes of the King -- He rejects the Proposals of the Army -- His Flight from Hampton Court -- Alarming Votes against him -- Scots' Invasion -- The Presbyterians regain the Ascendant -- Treaty of Newport -- Gradual Progress of a Republican Party -- Scheme among the Officers of bringing Charles to Trial -- This is finally determined -- Seclusion of Presbyterian Members -- Motives of some of the King's Judges -- Question of his Execution discussed -- His Character -- Icon Basilike Page 138 PART II Abolition of the Monarchy -- and of the House of Lords -- Commonwealth -- Schemes of Cromwell -- His Conversations with Whitelock -- Unpopularity of the Parliament -- Their Fall -- Little Parliament -- Instrument of Government -- Parliament called by Cromwell -- Dissolved by him -- Intrigues of the King and his Party -- Insurrectionary Movements in 1655 -- Rigorous Measures of Cromwell -- His arbitrary Government -- He summons another Parliament -- Designs to take the Crown -- the Project fails -- But his Authority as Protector is augmented -- He aims at forming a new House of Lords -- His Death -- and Character -- Richard his Son succeeds him -- Is supported by some prudent Men -- But opposed by a Coalition -- Calls a Parliament -- The Army overthrow both -- Long Parliament restored -- Expelled again -- and again restored -- Impossibility of establishing a Republic -- Intrigues of the Royalists -- They unite with the Presbyterians -- Conspiracy of 1659 -- Interference of Monk -- His Dissimulation -- Secluded Members return to their Seats -- Difficulties about the Restoration -- New Parliament -- King restored -- Whether previous Conditions required -- Plan of reviving the Treaty of Newport inexpedient -- Difficulty of framing Conditions -- Conduct of the Convention about this not blameable -- Except in respect of the Militia -- Conduct of Monk Page 212 CHAPTER XI FROM THE RESTORATION OF CHARLES II. TO THE FALL OF THE CABAL ADMINISTRATION Popular Joy at the Restoration -- Proceedings of the Convention Parliament -- Act of Indemnity -- Exclusion of the Regicides and others -- Discussions between the Houses on it -- Execution of Regicides -- Restitution of Crown and Church Lands -- Discontent of the Royalists -- Settlement of the Revenue -- Abolition of Military Tenures -- Excise granted instead -- Army disbanded -- Clergy restored to their Benefices -- Hopes of the Presbyterians from the King -- Projects for a Compromise -- King's Declaration in Favour of it -- Convention Parliament dissolved -- Different Complexion of the next -- Condemnation of Vane -- Its Injustice -- Acts replacing the Crown in its Prerogatives -- Corporation Act -- Repeal of Triennial Act -- Star-chamber not restored -- Presbyterians deceived by the King -- Savoy Conference -- Act of Uniformity -- Ejection of Nonconformist Clergy -- Hopes of the Catholics -- Bias of the King towards them -- Resisted by Clarendon and the Parliament -- Declaration for Indulgence -- Objected to by the Commons -- Act against Conventicles -- Another of the same Kind -- Remarks on them -- Dissatisfaction increases -- Private Life of the King -- Opposition in Parliament -- Appropriation of Supplies -- Commission of public Accounts -- Decline of Clarendon's Power -- Loss of the King's Favour -- Coalition against him -- His Impeachment -- Some Articles of it not unfounded -- Illegal Imprisonments -- Sale of Dunkirk -- Solicitation of French Money -- His Faults as a Minister -- His pusillanimous Flight -- and consequent Banishment -- Cabal Ministry -- Scheme of Comprehension and Indulgence -- Triple Alliance -- Intrigue with France -- King's Desire to be absolute -- Secret Treaty of 1670 -- Its Objects -- Differences between Charles and Louis as to the Mode of its Execution -- Fresh Severities against Dissenters -- Dutch War -- Declaration of Indulgence -- Opposed by Parliament -- and withdrawn -- Test Act -- Fall of Shaftesbury and his Colleagues Page 278 CHAPTER XII EARL OF DANBY'S ADMINISTRATION -- DEATH OF CHARLES II. Earl of Danby's Administration -- Opposition in the Commons -- Frequently corrupt -- Character of Lord Danby -- Connection of the popular Party with France -- Its Motives on both Sides -- Doubt as to their Acceptance of Money -- Secret Treaties of the King with France -- Fall of Danby -- His Impeachment -- Questions arising on it -- His Commitment to the Tower -- Pardon pleaded in Bar -- Votes of Bishops -- Abatement of Impeachments by Dissolution -- Popish Plot -- Coleman's Letters -- Godfrey's Death -- Injustice of Judges on the Trials -- Parliament dissolved -- Exclusion of Duke of York proposed -- Schemes of Shaftesbury and Monmouth -- Unsteadiness of the King -- Expedients to avoid the Exclusion -- Names of Whig and Tory -- New Council formed by Sir William Temple -- Long Prorogation of Parliament -- Petitions and Addresses -- Violence of the Commons -- Oxford Parliament -- Impeachment of Commoners for Treason constitutional -- Fitzharris impeached -- Proceedings against Shaftesbury and his Colleagues -- Triumph of the Court -- Forfeiture of Charter of London -- And of other Places -- Projects of Lord Russell and Sidney -- Their Trials -- High Tory Principles of the Clergy -- Passive Obedience -- Some contend for absolute Power -- Filmer -- Sir George Mackenzie -- Decree of University of Oxford -- Connection with Louis broken off -- King's Death Page 361 CONSTITUTIONAL HISTORY OF ENGLAND FROM HENRY VII. TO GEORGE II. CHAPTER VIII FROM THE DISSOLUTION OF CHARLES'S THIRD PARLIAMENT TO THE MEETING OF THE LONG PARLIAMENT The dissolution of a parliament was always to the prerogative what the dispersion of clouds is to the sun. As if in mockery of the transient obstruction, it shone forth as splendid and scorching as before. Even after the exertions of the most popular and intrepid House of Commons that had ever met, and after the most important statute that had been passed for some hundred years, Charles found himself in an instant unshackled by his law or his word; once more that absolute king, for whom his sycophants had preached and pleaded, as if awakened from a fearful dream of sounds and sights that such monarchs hate to endure, to the full enjoyment of an unrestrained prerogative. He announced his intentions of government for the future in a long declaration of the causes of the late dissolution of parliament, which, though not without the usual promises to maintain the laws and liberties of the people, gave evident hints that his own interpretation of them must be humbly acquiesced in.[1] This was followed up by a proclamation that he "should account it presumption for any to prescribe a time to him for parliament, the calling, continuing, or dissolving of which was always in his own power; and he should be more inclinable to meet parliament again, when his people should see more clearly into his intents and actions, when such as have bred this interruption shall have received their condign punishment." He afterwards declares that he should "not overcharge his subjects by any more burthens, but satisfy himself with those duties that were received by his father, which he neither could nor would dispense with; but should esteem them unworthy of his protection who should deny them."[2] _Prosecutions of Eliot and others for conduct in parliament._--The king next turned his mind, according to his own and his father's practice, to take vengeance on those who had been most active in their opposition to him. A few days after the dissolution, Sir John Eliot, Holles, Selden, Long, Strode, and other eminent members of the Commons, were committed, some to the Tower, some to the King's Bench, and their papers seized. Upon suing for their habeas corpus, a return was made that they were detained for notable contempts, and for stirring up sedition, alleged in a warrant under the king's sign manual. Their counsel argued against the sufficiency of this return, as well on the principles and precedents employed in the former case of Sir Thomas Darnel and his colleagues, as on the late explicit confirmation of them in the Petition of Right. The king's counsel endeavoured, by evading the authority of that enactment, to set up anew that alarming pretence to a power of arbitrary imprisonment, which the late parliament had meant to silence for ever. "A petition in parliament," said the attorney-general Heath, "is no law, yet it is for the honour and dignity of the king to observe it faithfully; but it is the duty of the people not to stretch it beyond the words and intention of the king. And no other construction can be made of the petition, than that it is a confirmation of the ancient liberties and rights of the subjects. So that now the case remains in the same quality and degree as it was before the petition." Thus, by dint of a sophism which turned into ridicule the whole proceedings of the late parliament, he pretended to recite afresh the authorities on which he had formerly relied, in order to prove that one committed by the command of the king or privy council is not bailable. The judges, timid and servile, yet desirous to keep some measures with their own consciences, or looking forward to the wrath of future parliaments, wrote what Whitelock calls "a humble and stout letter" to the king, that they were bound to bail the prisoners; but requested that he would send his direction to do so.[3] The gentlemen in custody were, on this intimation, removed to the Tower; and the king, in a letter to the court, refused permission for them to appear on the day when judgment was to be given. Their restraint was thus protracted through the long vacation; towards the close of which, Charles, sending for two of the judges told them he was content the prisoners should be bailed, notwithstanding their obstinacy in refusing to present a petition, declaring their sorrow for having offended him. In the ensuing Michaelmas term accordingly they were brought before the court, and ordered not only to find bail for the present charge, but sureties for their good behaviour. On refusing to comply with this requisition, they were remanded to custody. The attorney-general, dropping the charge against the rest, exhibited an information against Sir John Eliot for words uttered in the house; namely, That the council and judges had conspired to trample under foot the liberties of the subject; and against Mr. Denzil Holles and Mr. Valentine for a tumult on the last day of the session; when the speaker having attempted to adjourn the house by the king's command, had been forcibly held down in the chair by some of the members, while a remonstrance was voted. They pleaded to the court's jurisdiction, because their offences were supposed to be committed in parliament, and consequently not punishable in any other place. This brought forward the great question of privilege, on the determination of which the power of the House of Commons, and consequently the character of the English constitution, seemed evidently to depend. Freedom of speech, being implied in the nature of a representative assembly called to present grievances and suggest remedies, could not stand in need of any special law or privilege to support it. But it was also sanctioned by positive authority. The speaker demands it at the beginning of every parliament among the standing privileges of the house; and it had received a sort of confirmation from the legislature by an act passed in the fourth year of Henry VIII., on occasion of one Strode, who had been prosecuted and imprisoned in the Stannary court, for proposing in parliament some regulations for the tinners in Cornwall; which annuls all that had been done, or might hereafter be done, towards Strode, for any matter relating to the parliament, in words so strong as to form, in the opinion of many lawyers, a general enactment. The judges however held, on the question being privately sent to them by the king, that the statute concerning Strode was a particular act of parliament extending only to him and those who had joined with him to prefer a bill to the Commons concerning tinners; but that, although the act were private and extended to them alone, yet it was no more than all other parliament men, by privilege of the house, ought to have; namely, freedom of speech concerning matters there debated.[4] It appeared by a constant series of precedents, the counsel for Eliot and his friends argued, that the liberties and privileges of parliament could only be determined therein, and not by any inferior court; that the judges had often declined to give their opinions on such subjects, alleging that they were beyond their jurisdiction; that the words imputed to Eliot were in the nature of an accusation of persons in power which the Commons had an undoubted right to prefer; that no one would venture to complain of grievances in parliament, if he should be subjected to punishment at the discretion of an inferior tribunal; that whatever instances had occurred of punishing the alleged offences of members after a dissolution, were but acts of power, which no attempt had hitherto been made to sanction; finally, that the offences imputed might be punished in a future parliament. The attorney-general replied to the last point, that the king was not bound to wait for another parliament; and moreover, that the House of Commons was not a court of justice, nor had any power to proceed criminally, except by imprisoning its own members. He admitted that the judges had sometimes declined to give their judgment upon matters of privilege; but contended that such cases had happened during the session of parliament, and that it did not follow, but that an offence committed in the house might be questioned after a dissolution. He set aside the application of Strode's case, as a special act of parliament; and dwelt on the precedent of an information preferred in the reign of Mary against certain members for absenting themselves from their duty in parliament, which, though it never came to a conclusion, was not disputed on the ground of right. The court were unanimous in holding that they had jurisdiction, though the alleged offences were committed in parliament, and that the defendants were bound to answer. The privileges of parliament did not extend, one of them said, to breaches of the peace, which was the present case; and all offences against the crown, said another, were punishable in the court of King's Bench. On the parties refusing to put in any other plea, judgment was given that they should be imprisoned during the king's pleasure, and not released without giving surety for good behaviour, and making submission; that Eliot, as the greatest offender and ringleader, should be fined in £2000, Holles and Valentine to a smaller amount.[5] Eliot, the most distinguished leader of the popular party, died in the tower without yielding to the submission required. In the long parliament, the commons came to several votes on the illegality of all these proceedings, both as to the delay in granting their habeas corpus, and the overruling their plea to the jurisdiction of the King's Bench. But the subject was revived again in a more distant and more tranquil period. In the year 1667, the Commons resolved that the act of 4 H. VIII. concerning Strode was a general law, "extending to indemnify all and every the members of both houses of parliament, in all parliaments, for and touching any bills, speaking, reasoning or declaring of any matter or matters, in and concerning the parliament to be communed and treated of, and is a declaratory law of the ancient and necessary rights and privileges of parliament." They resolved also that the judgment given 5 Car. I. against Sir John Eliot, Denzil Holles, and Benjamin Valentine, is an illegal judgment, and against the freedom and privilege of parliament. To these resolutions the Lords gave their concurrence. And Holles, then become a peer, having brought the record of the King's Bench by writ of error before them, they solemnly reversed the judgment.[6] An important decision with respect to our constitutional law, which has established beyond controversy the great privilege of unlimited freedom of speech in parliament; unlimited, I mean, by any authority except that by which the house itself ought always to restrain indecent and disorderly language in its members. It does not, however, appear to be a necessary consequence from the reversal of this judgment, that no actions committed in the house by any of its members are punishable in a court of law. The argument in behalf of Holles and Valentine goes indeed to this length; but it was admitted in the debate on the subject in 1667, that their plea to the jurisdiction of the King's Bench could not have been supported as to the imputed riot in detaining the speaker in the chair, though the judgment was erroneous in extending to words spoken in parliament. And it is obvious that the house could inflict no adequate punishment in the possible case of treason or felony committed within its walls; nor, if its power of imprisonment be limited to the session, in that of many smaller offences. _Prosecution of Chambers for refusing to pay customs._--The customs on imported merchandises were now rigorously enforced.[7] But the late discussions in parliament, and the growing disposition to probe the legality of all acts of the Crown, rendered the merchants more discontented than ever. Richard Chambers, having refused to pay any further duty for a bale of silks than might be required by law, was summoned before the privy-council. In the presence of that board he was provoked to exclaim that in no part of the world, not even in Turkey, were the merchants so screwed and wrung as in England. For these hasty words an information was preferred against him in the star-chamber; and the court, being of opinion that the words were intended to make the people believe that his majesty's happy government might be termed Turkish tyranny, manifested their laudable abhorrence of such tyranny by sentencing him to pay a fine of £2000, and to make a humble submission. Chambers, a sturdy puritan, absolutely refused to subscribe the form of submission tendered to him, and was of course committed to prison. But the court of King's Bench admitted him to bail on a habeas corpus; for which, as Whitelock tells us, they were reprimanded by the council.[8] _Commendable behaviour of judges in some instances._--There were several instances, besides this just mentioned, wherein the judges manifested a more courageous spirit than they were able constantly to preserve; and the odium under which their memory labours for a servile compliance with the court, especially in the case of ship-money, renders it but an act of justice to record those testimonies they occasionally gave of a nobler sense of duty. They unanimously declared, when Charles expressed a desire that Felton, the assassin of the Duke of Buckingham, might be put to the rack in order to make him discover his accomplices, that the law of England did not allow the use of torture. This is a remarkable proof that, amidst all the arbitrary principles and arbitrary measures of the time, a truer sense of the inviolability of law had begun to prevail, and that the free constitution of England was working off the impurities with which violence had stained it. For, though it be most certain that the law never recognised the use of torture, there had been many instances of its employment, and even within a few years.[9] In this public assertion of its illegality, the judges conferred an eminent service on their country, and doubtless saved the king and his council much additional guilt and infamy which they would have incurred in the course of their career. They declared, about the same time, on a reference to them concerning certain disrespectful words alleged to have been spoken by one Pine against the king, that no words can of themselves amount to treason within the statute of Edward III.[10] They resolved, some years after, that Prynne's, Burton's, and Bastwick's libels against the bishops were no treason.[11] In their old controversy with the ecclesiastical jurisdiction, they were inflexibly tenacious. An action having been brought against some members of the high-commission court for false imprisonment, the king, on Laud's remonstrance, sent a message to desire that the suit might not proceed till he should have conversed with the judges. The chief-justice made answer that they were bound by their oaths not to delay the course of justice; and after a contention before the privy-council, the commissioners were compelled to plead.[12] Such instances of firmness serve to extenuate those unhappy deficiencies which are more notorious in history. Had the judges been as numerous and independent as those of the parliament of Paris, they would not probably have been wanting in equal vigour. But holding their offices at the king's will, and exposed to the displeasure of his council whenever they opposed any check to the prerogative, they held a vacillating course, which made them obnoxious to those who sought for despotic power, while it forfeited the esteem of the nation. _Means adopted to raise the revenue. Compositions for knighthood._--In pursuance of the system adopted by Charles's ministers, they had recourse to exactions, some odious and obsolete, some of very questionable legality, and others clearly against law. Of the former class may be reckoned the compositions for not taking the order of knighthood. The early kings of England, Henry III. and Edward I., very little in the spirit of chivalry, had introduced the practice of summoning their military tenants, holding £20 per annum, to receive knighthood at their hands. Those who declined this honour were permitted to redeem their absence by a moderate fine.[13] Elizabeth, once in her reign, and James, had availed themselves of this ancient right. But the change in the value of money rendered it far more oppressive than formerly, though limited to the holders of £40 per annum in military tenure. Commissioners were now appointed to compound with those who had neglected some years before to obey the proclamation, summoning them to receive knighthood at the king's coronation.[14] In particular instances, very severe fines are recorded to have been imposed upon defaulters, probably from some political resentment.[15] _Forest laws._--Still greater dissatisfaction attended the king's attempt to revive the ancient laws of the forests,--those laws, of which, in elder times, so many complaints had been heard, exacting money by means of pretensions which long disuse had rendered dubious, and showing himself to those who lived on the borders of those domains in the hateful light of a litigious and encroaching neighbour. The Earl of Holland held a court almost every year, as chief-justice in eyre, for the recovery of the king's forestal rights, which made great havoc with private property. No prescription could be pleaded against the king's title, which was to be found, indeed, by the inquest of a jury, but under the direction of a very partial tribunal. The royal forests in Essex were so enlarged, that they were hyperbolically said to include the whole county.[16] The Earl of Southampton was nearly ruined by a decision that stripped him of his estate near the New Forest.[17] The boundaries of Rockingham forest were increased from six miles to sixty, and enormous fines imposed on the trespassers; Lord Salisbury being amerced in £20,000, Lord Westmoreland in £19,000, Sir Christopher Hatton in £12,000.[18] It is probable that much of these was remitted. _Monopolies._--A greater profit was derived from a still more pernicious and indefensible measure, the establishment of a chartered company, with exclusive privileges of making soap. The recent statute against monopolies seemed to secure the public against this species of grievance. Noy, however, the attorney-general, a lawyer of uncommon eminence, and lately a strenuous asserter of popular rights in the House of Commons, devised this project, by which he probably meant to evade the letter of the law, since every manufacturer was permitted to become a member of the company. They agreed to pay eight pounds for every ton of soap made, as well as £10,000 for their charter. For this they were empowered to appoint searchers, and exercise a sort of inquisition over the trade. Those dealers who resisted their interference were severely fined, on informations in the star-chamber. Some years afterwards, however, the king received money from a new corporation of soap-makers, and revoked the patent of the former.[19] This precedent was followed in the erection of a similar company of starch-makers, and in a great variety of other grants, which may be found in Rymer's _Foedera_, and in the proceedings of the long parliament; till monopolies, in transgression or evasion of the late statute, became as common as they had been under James or Elizabeth. The king, by a proclamation at York in 1639, beginning to feel the necessity of diminishing the public odium, revoked all those grants.[20] He annulled at the same time a number of commissions that had been issued in order to obtain money by compounding with offenders against penal statutes. The catalogue of these, as well as of the monopolies, is very curious. The former were, in truth, rather vexatious than illegal, and sustained by precedents in what were called the golden ages of Elizabeth and James, though at all times the source of great and just discontent. The name of Noy has acquired an unhappy celebrity by a far more famous invention, which promised to realise the most sanguine hopes that could have been formed of carrying on the government for an indefinite length of time without the assistance of parliament. Shaking off the dust of ages from parchments in the Tower, this man of venal diligence and prostituted learning discovered that the sea-ports and even maritime counties had in early times been sometimes called upon to furnish ships for the public service; nay, there were instances of a similar demand upon some inland places. Noy himself died almost immediately afterwards. Notwithstanding his apostasy from the public cause, it is just to remark that we have no right to impute to him the more extensive and more unprecedented scheme of ship-money as a general tax, which was afterwards carried into execution. But it sprang by natural consequence from the former measure, according to the invariable course of encroachment, which those who have once bent the laws to their will ever continue to pursue. The first writ issued from the council in October 1634. It was directed to the magistrates of London and other sea-port towns. Reciting the depredations lately committed by pirates, and slightly adverting to the dangers imminent in a season of general war on the continent, it enjoins them to provide a certain number of ships of war of a prescribed tonnage and equipage; empowering them also to assess all the inhabitants for a contribution towards this armament according to their substance. The citizens of London humbly remonstrated that they conceived themselves exempt, by sundry charters and acts of parliament, from bearing such a charge. But the council peremptorily compelled their submission; and the murmurs of inferior towns were still more easily suppressed. This is said to have cost the city of London £35,000.[21] There wanted not reasons in the cabinet of Charles for placing the navy at this time on a respectable footing. Algerine pirates had become bold enough to infest the Channel; and what was of more serious importance, the Dutch were rapidly acquiring a maritime preponderance, which excited a natural jealousy, both for our commerce, and the honour of our flag. This commercial rivalry conspired with a far more powerful motive at court, an abhorrence of everything republican or Calvinistic, to make our course of policy towards Holland not only unfriendly, but insidious and inimical in the highest degree. A secret treaty is extant, signed in 1631, by which Charles engaged to assist the King of Spain in the conquest of that great protestant commonwealth, retaining the isles of Zealand as the price of his co-operation.[22] Yet, with preposterous inconsistency as well as ill-faith, the two characteristics of all this unhappy prince's foreign policy, we find him in the next year carrying on a negotiation with a disaffected party in the Netherlands, in some strange expectation of obtaining the sovereignty on their separation from Spain. Lord Cottington betrayed this intrigue (of which one whom we should little expect to find in these paths of conspiracy, Peter Paul Rubens, was the negotiator) to the court of Madrid.[23] It was in fact an unpardonable and unprovoked breach of faith, and accounts for the indifference, to say no more, which that government always showed to his misfortunes. Charles, whose domestic position rendered a pacific system absolutely necessary, busied himself, far more than common history has recorded, with the affairs of Europe. He was engaged in a tedious and unavailing negotiation with both branches of the house of Austria, especially with the court of Madrid, for the restitution of the Palatinate. He took a much greater interest than his father had done in the fortunes of his sister and her family; but, like his father, he fell into the delusion that the cabinet of Madrid, for whom he could effect but little, or that of Vienna, to whom he could offer nothing, would so far realise the cheap professions of friendship they were always making, as to sacrifice a conquest wherein the preponderance of the house of Austria and the catholic religion in Germany was so deeply concerned. They drew him on accordingly through the labyrinths of diplomacy; assisted, no doubt, by that party in his councils, composed at this time of Lord Cottington, Secretary Windebank, and some others, who had always favoured Spanish connections.[24] It appears that the fleet raised in 1634 was intended, according to an agreement entered into with Spain, to restrain the Dutch from fishing in the English seas, nay even, as opportunities should arise, to co-operate hostilely with that of Spain.[25] After above two years spent in these negotiations, Charles discovered that the house of Austria were deceiving him; and, still keeping in view the restoration of his nephew to the electoral dignity and territories, entered into stricter relations with France; a policy which might be deemed congenial to the queen's inclinations, and recommended by her party in his council, the Earl of Holland, Sir Henry Vane, and perhaps by the Earls of Northumberland and Arundel. In the first impulse of indignation at the duplicity of Spain, the king yielded so far to their counsels as to meditate a declaration of war against that power.[26] But his own cooler judgment, or the strong dissuasions of Strafford, who saw that external peace was an indispensable condition for the security of despotism,[27] put an end to so imprudent a project; though he preserved, to the very meeting of the long parliament, an intimate connection with France, and even continued to carry on negotiations, tedious and insincere, for an offensive alliance.[28] Yet he still made, from time to time, similar overtures to Spain;[29] and this unsteadiness, or rather duplicity, which could not easily be concealed from two cabinets eminent for their secret intelligence, rendered both of them his enemies, and the instruments, as there is much reason to believe, of some of his greatest calamities. It is well known that the Scots covenanters were in close connection with Richlieu; and many circumstances render it probable, that the Irish rebellion was countenanced and instigated both by him and by Spain. _Extension of writs for ship-money to inland places._--This desire of being at least prepared for war, as well as the general system of stretching the prerogative beyond all limits, suggested an extension of the former writs from the sea-ports to the whole kingdom. Finch, chief justice of the common pleas, has the honour of this improvement on Noy's scheme. He was a man of little learning or respectability, a servile tool of the despotic cabal; who, as speaker of the last parliament, had, in obedience to a command from the king to adjourn, refused to put the question upon a remonstrance moved in the house. By the new writs for ship-money, properly so denominated, since the former had only demanded the actual equipment of vessels, for which inland counties were of course obliged to compound, the sheriffs were directed to assess every landholder and other inhabitant according to their judgment of his means, and to enforce the payment by distress.[30] This extraordinary demand startled even those who had hitherto sided with the court. Some symptoms of opposition were shown in different places, and actions brought against those who had collected the money. But the greater part yielding to an overbearing power, exercised with such rigour that no one in this king's reign who had ventured on the humblest remonstrance against any illegal act had escaped without punishment. Indolent and improvident men satisfied themselves that the imposition was not very heavy, and might not be repeated. Some were content to hope that their contribution, however unduly exacted, would be faithfully applied to public ends. Others were overborne by the authority of pretended precedents, and could not yet believe that the sworn judges of the law would pervert it to its own destruction. The ministers prudently resolved to secure, not the law, but its interpreters, on their side. The judges of assize were directed to inculcate on their circuits the necessary obligation of forwarding the king's service by complying with his writ. But, as the measure grew more obnoxious, and strong doubts of its legality came more to prevail, it was thought expedient to publish an extra-judicial opinion of the twelve judges, taken at the king's special command, according to the pernicious custom of that age. They gave it as their unanimous opinion that, when the good and safety of the kingdom in general is concerned and the whole kingdom in danger, his majesty might, by writ under the great seal, command all his subjects, at their charge, to provide and furnish such number of ships, with men, munition, and victuals, and for such time as he should think fit, for the defence and safeguard of the kingdom; and that by law he might compel the doing thereof, in case of refusal or refractoriness; and that he was the sole judge both of the danger, and when and how the same was to be prevented and avoided. This premature declaration of the judges, which was publicly read by the lord-keeper Coventry in the star-chamber, did not prevent a few intrepid persons from bringing the question solemnly before them, that the liberties of their country might at least not perish silently, nor those who had betrayed them avoid the responsibility of a public avowal of their shame. The first that resisted was the gallant Richard Chambers, who brought an action against the lord-mayor for imprisoning him on account of his refusal to pay his assessment on the former writ. The magistrate pleaded the writ as a special justification; when Berkley, one of the judges of the king's bench, declared that there was a rule of law and a rule of government, that many things which could not be done by the first rule might be done by the other, and would not suffer counsel to argue against the lawfulness of ship-money.[31] The next were Lord Say and Mr. Hampden, both of whom appealed to the justice of their country; but the famous decision which has made the latter so illustrious, put an end to all attempts at obtaining redress by course of law. _Hampden's refusal to pay._--Hampden, it seems hardly necessary to mention, was a gentleman of good estate in Buckinghamshire, whose assessment to the contribution for ship-money demanded from his county amounted only to twenty shillings.[32] The cause, though properly belonging to the court of exchequer, was heard, on account of its magnitude, before all the judges in the exchequer-chamber.[33] The precise question, so far as related to Mr. Hampden, was, Whether the king had a right, on his own allegation of public danger, to require an inland county to furnish ships, or a prescribed sum of money by way of commutation, for the defence of the kingdom? It was argued by St. John and Holborne in behalf of Hampden; by the solicitor-general Littleton and the attorney-general Banks, for the crown.[34] _Arguments on the case._--The law and constitution of England, the former maintained, had provided in various ways for the public safety and protection against enemies. First, there were the military tenures, which bound great part of the kingdom to a stipulated service at the charge of the possessors. The cinque ports also, and several other towns, some of them not maritime, held by a tenure analogous to this; and were bound to furnish a quota of ships or men, as the condition of their possessions and privileges. These for the most part are recorded in Domesday-book, though now in general grown obsolete. Next to this specific service, our constitution had bestowed on the sovereign his certain revenues, the fruits of tenure, the profits of his various minor prerogatives; whatever, in short, he held in right of his crown, was applicable, so far as it could be extended, to the public use. It bestowed on him, moreover, and perhaps with more special application to maritime purposes, the customs on importation of merchandise. These indeed had been recently augmented far beyond ancient usage. "For these modern impositions," says St. John, "of the legality thereof I intend not to speak: for in case his majesty may impose upon merchandise what himself pleaseth, there will be less cause to tax the inland counties; and in case he cannot do it, it will be strongly presumed that he can much less tax them." But as the ordinary revenues might prove quite unequal to great exigencies, the constitution has provided another means, as ample and sufficient as it is lawful and regular, parliamentary supply. To this the kings of England have in all times had recourse; yet princes are not apt to ask as a concession what they might demand of right. The frequent loans and benevolences which they have required, though not always defensible by law, are additional proofs that they possessed no general right of taxation. To borrow on promise of repayment, to solicit, as it were, alms from their subjects, is not the practice of sovereigns whose prerogatives entitle them to exact money. Those loans had sometimes been repaid, expressly to discharge the king's conscience. And a very arbitrary prince, Henry VIII., had obtained acts of parliament to release him from the obligation of repayment. These merely probable reasonings prepare the way for that conclusive and irresistible argument that was founded on statute law. Passing slightly over the charter of the Conqueror, that his subjects shall hold their lands free from all unjust tallage, and the clause in John's Magna Charta, that no aid or scutage should be assessed but by consent of the great council (a provision not repeated in that of Henry III.), the advocates of Hampden relied on the 25 E. I., commonly called the Confirmatio Chartarum, which for ever abrogated all taxation without consent of parliament; and this statute itself, they endeavoured to prove, was grounded on requisitions very like the present, for the custody of the sea, which Edward had issued the year before. Hence it was evident that the saving contained in that act for the accustomed aids and prises could not possibly be intended, as the opposite counsel would suggest, to preserve such exactions as ship-money; but related to the established feudal aids, and to the ancient customs on merchandise. They dwelt less however (probably through fear of having this exception turned against them) on this important statute than on one of more celebrity, but of very equivocal genuineness, denominated, De Tallagio non Concedendo; which is nearly in the same words as the Confirmatio Chartarum, with the omission of the above-mentioned saving. More than one law, enacted under Edward III., re-asserts the necessity of parliamentary consent to taxation. It was indeed the subject of frequent remonstrance in that reign, and the king often infringed this right. But the perseverance of the Commons was successful, and ultimately rendered the practice conformable to the law. In the second year of Richard II., the realm being in imminent danger of invasion, the privy council convoked an assembly of peers and other great men, probably with a view to avoid the summoning of a parliament. This assembly lent their own money, but declared that they could not provide a remedy without charging the Commons, which could not be done out of parliament, advising that one should be speedily summoned. This precedent was the more important, as it tended to obviate that argument from peril and necessity, on which the defenders of ship-money were wont to rely. But they met that specious plea more directly. They admitted that a paramount overruling necessity silences the voice of law; that in actual invasion, or its immediate prospect, the rights of private men must yield to the safety of the whole; that not only the sovereign, but each man in respect of his neighbour might do many things, absolutely illegal at other seasons; and this served to distinguish the present case from some strong acts of prerogative exerted by Elizabeth in 1588, when the liberties and religion of the people were in the most apparent jeopardy. But here there was no overwhelming danger; the nation was at peace with all the world: could the piracies of Turkish corsairs, or even the insolence of rival neighbours, be reckoned among those instant perils, for which a parliament would provide too late? To the precedents alleged on the other side, it was replied, that no one of them met the case of an inland county; that such as were before the 25 E. I. were sufficiently repelled by that statute, such as occurred under Edward III. by the later statutes, and by the remonstrances of parliament during his reign; and there were but very few afterwards. But that, in a matter of statute law, they ought not to be governed by precedents, even if such could be adduced. Before the latter end of Edward I.'s reign, St. John observes, "all things concerning the king's prerogative and the subject's liberties were upon uncertainties." "The government," says Holborne truly, "was more of force than law." And this is unquestionably applicable, in a lesser degree, to many later ages. Lastly, the petition of right, that noble legacy of a slandered parliament, reciting and confirming the ancient statutes, had established that no man thereafter be compelled to make or yield any gift, loan, benevolence, tax, or such-like charge, without common consent by act of parliament. This latest and most complete recognition must sweep away all contrary precedent, and could not, without a glaring violation of its obvious meaning, be stretched into an admission of ship-money. The king's counsel, in answer to these arguments, appealed to that series of records which the diligence of Noy had collected. By far the greater part of these were commissions of array. But several, even of those addressed to inland towns (and, if there were no service by tenure in the case, it does not seem easy to distinguish these in principle from counties), bore a very strong analogy to the present. They were, however, in early times. No sufficient answer could be offered to the statutes that had prohibited unparliamentary taxation. The attempts made to elude their force were utterly ineffectual, as those who are acquainted with their emphatic language may well conceive. But the council of Charles the First, and the hirelings who ate their bread, disdained to rest their claim of ship-money (big as it was with other and still more novel schemes) on obscure records, or on cavils about the meaning of statutes. They resorted rather to the favourite topic of the times, the intrinsic, absolute authority of the king. This the attorney-general Banks placed in the very front of his argument. "This power," says he, "is innate in the person of an absolute king, and in the persons of the kings of England. All magistracy it is of nature, and obedience and subjection it is of nature. This power is not any ways derived from the people, but reserved unto the king when positive laws first began. For the king of England, he is an absolute monarch; nothing can be given to an absolute prince but what is inherent in his person. He can do no wrong. He is the sole judge, and we ought not to question him. Where the law trusts, we ought not to distrust. The acts of parliament," he observed, "contained no express words to take away so high a prerogative; and the king's prerogative, even in lesser matters, is always saved, wherever express words do not restrain it." But this last argument appearing too modest for some of the judges who pronounced sentence in this cause, they denied the power of parliament to limit the high prerogatives of the Crown. "This imposition without parliament," says Justice Crawley, "appertains to the king originally, and to the successor _ipso facto_, if he be a sovereign in right of his sovereignty from the Crown. You cannot have a king without these royal rights, no, not by act of parliament." "Where Mr. Holborne," says Justice Berkley, "supposed a fundamental policy in the creation of the frame of this kingdom, that in case the monarch of England should be inclined to exact from his subjects at his pleasure, he should be restrained, for that he could have nothing from them, but upon a common consent in parliament; he is utterly mistaken herein. The law knows no such king-yoking policy. The law is itself an old and trusty servant of the king's; it is his instrument or means which he useth to govern his people by: I never read nor heard that _lex_ was _rex_; but it is common and most true, that _rex_ is _lex_." Vernon, another judge, gave his opinion in few words: "That the king, _pro bono publico_, may charge his subjects for the safety and defence of the kingdom, notwithstanding any act of parliament, and that a statute derogatory from the prerogative doth not bind the king; and the king may dispense with any law in cases of necessity." Finch, the adviser of the ship-money, was not backward to employ the same argument in its behalf. "No act of parliament," he told them, "could bar a king of his regality, as that no land should hold of him, or bar him of the allegiance of his subjects or the relative on his part, as trust and power to defend his people; therefore acts of parliament to take away his royal power in the defence of his kingdom are void; they are void acts of parliament to bind the king not to command the subjects, their persons, and goods, and I say, their money too; for no acts of parliament make any difference." Seven of the twelve judges, namely, Finch, chief justice of the common pleas, Jones, Berkley, Vernon, Crawley, Trevor, and Weston, gave judgment for the Crown. Brampston, chief justice of the king's bench, and Davenport, chief baron of the exchequer, pronounced for Hampden, but on technical reasons, and adhering to the majority on the principal question. Denham, another judge of the same court, being extremely ill, gave a short written judgment in favour of Hampden. But Justices Croke and Hutton, men of considerable reputation and experience, displayed a most praiseworthy intrepidity in denying, without the smallest qualification, the alleged prerogative of the Crown and the lawfulness of the writ for ship-money. They had unfortunately signed, along with the other judges, the above-mentioned opinion in favour of the right. For this they made the best apology they could, that their voice was concluded by the majority. But in truth it was the ultimate success that sometimes attends a struggle between conscience and self-interest or timidity.[35] The length to which this important cause was protracted, six months having elapsed from the opening speech of Mr. Hampden's counsel to the final judgment, was of infinite disservice to the Crown. During this long period, every man's attention was directed to the exchequer-chamber. The convincing arguments of St. John and Holborne, but still more the division on the bench, increased their natural repugnance to so unusual and dangerous a prerogative.[36] Those who had trusted to the faith of the judges were undeceived by the honest repentance of some, and looked with indignation on so prostituted a crew. That respect for courts of justice, which the happy structure of our judicial administration has in general kept inviolate, was exchanged for distrust, contempt, and desire of vengeance. They heard the speeches of some of the judges with more displeasure than even their final decision. Ship-money was held lawful by Finch and several other judges, not on the authority of precedents, which must in their nature have some bounds, but on principles subversive of any property or privilege in the subject. Those paramount rights of monarchy, to which they appealed to-day in justification of ship-money, might to-morrow serve to supersede other laws, and maintain new exertions of despotic power. It was manifest, by the whole strain of the court lawyers, that no limitations on the king's authority could exist but by the king's sufferance. This alarming tenet, long bruited among the churchmen and courtiers, now resounded in the halls of justice. But ship-money, in consequence, was paid with far less regularity and more reluctance than before.[37] The discontent that had been tolerably smothered was now displayed in every county; and though the council did not flinch in the least from exacting payment, nor willingly remit any part of its rigour towards the uncomplying, it was impossible either to punish the great body of the country gentlemen and citizens, or to restrain their murmurs by a few examples. Whether in consequence of this unwillingness or for other reasons, the revenue levied in different years under the head of ship-money is more fluctuating than we should expect from a fixed assessment; but may be reckoned at an average sum of £200,000.[38] _Proclamations._--It would doubtless be unfair to pass a severe censure on the government of Charles the First for transgressions of law, which a long course of precedents might render dubious, or at least extenuate. But this common apology for his administration, on which the artful defence of Hume is almost entirely grounded, must be admitted cautiously, and not until we have well considered how far such precedents could be brought to support it. This is particularly applicable to his proclamations. I have already pointed out the comparative novelty of these unconstitutional ordinances, and their great increase under James. They had not been fully acquiesced in; the Commons had remonstrated against their abuse; and Coke, with other judges, had endeavoured to fix limits to their authority, very far within that which they arrogated. It can hardly, therefore, be said that Charles's council were ignorant of their illegality; nor is the case at all parallel to that of general warrants, or any similar irregularity into which an honest government may inadvertently be led. They serve at least to display the practical state of the constitution, and the necessity of an entire reform in its spirit. _Various arbitrary proceedings._--The proclamations of Charles's reign are far more numerous than those of his father. They imply a prerogative of intermeddling with all matters of trade, prohibiting or putting under restraint the importation of various articles, and the home growth of others, or establishing regulations for manufactures.[39] Prices of several minor articles were fixed by proclamation, and in one instance this was extended to poultry, butter, and coals.[40] The king declares by a proclamation that he had incorporated all tradesmen and artificers within London and three miles round; so that no person might set up any trade without having served a seven years' apprenticeship, and without admission into such corporation.[41] He prohibits in like manner any one from using the trade of a maltster or that of a brewer, without admission into the corporations of maltsters or brewers erected for every county.[42] I know not whether these projects were in any degree founded on the alleged pretext of correcting abuses, or were solely designed to raise money by means of these corporations. We find, however, a revocation of the restraint on malting and brewing soon after. The illegality of these proclamations is most unquestionable. The rapid increase of London continued to disquiet the court. It was the stronghold of political and religious disaffection. Hence the prohibitions of erecting new houses, which had begun under Elizabeth, were continually repeated.[43] They had indeed some laudable objects in view; to render the city more healthy, cleanly, and magnificent, and by prescribing the general use of brick instead of wood, as well as by improving the width and regularity of the streets, to afford the best security against fires, and against those epidemical diseases which visited the metropolis with unusual severity in the early years of this reign. The most jealous censor of royal encroachments will hardly object to the proclamations enforcing certain regulations of police in some of those alarming seasons. It is probable, from the increase which we know to have taken place in London during this reign, that licences for building were easily obtained. The same supposition is applicable to another class of proclamation, enjoining all persons who had residences in the country to quit the capital and repair to them.[44] Yet, that these were not always a dead letter, appears from an information exhibited in the star-chamber against seven lords, sixty knights, and one hundred esquires, besides many ladies, for disobeying the king's proclamation, either by continuing in London, or returning to it after a short absence.[45] The result of this prosecution, which was probably only intended to keep them in check, does not appear. No proclamation could stand in need of support from law, while this arbitrary tribunal assumed a right of punishing misdemeanours. It would have been a dangerous aggravation of any delinquent's offence to have questioned the authority of a proclamation, or the jurisdiction of the council. The security of freehold rights had been the peculiar boast of the English law. The very statute of Henry VIII., which has been held up to so much infamy, while it gave the force of law to his proclamations, interposed its barrier in defence of the subject's property. The name of freeholder, handed down with religious honour from an age when it conveyed distinct privileges, and as it were a sort of popular nobility, protected the poorest man against the Crown's and the lord's rapacity. He at least was recognised as the _liber homo_ of Magna Charta, who could not be disseised of his tenements and franchises. His house was his castle, which the law respected, and which the king dared not enter. Even the public good must give way to his obstinacy; nor had the legislature itself as yet compelled any man to part with his lands for a compensation which he was loath to accept. The council and star-chamber had very rarely presumed to meddle with his right; never perhaps where it was acknowledged and ancient. But now this reverence of the common law for the sacredness of real property was derided by those who revered nothing as sacred but the interests of the Church and Crown. The privy council, on a suggestion that the demolition of some houses and shops in the vicinity of St. Paul's would show the cathedral to more advantage, directed that the owners should receive such satisfaction as should seem reasonable; or on their refusal the sheriff was required to see the buildings pulled down, "it not being thought fit the obstinacy of those persons should hinder so considerable a work."[46] By another order of council, scarcely less oppressive and illegal, all shops in Cheapside and Lombard Street, except those of goldsmiths, were directed to be shut up, that the avenue to St. Paul's might appear more splendid; and the mayor and aldermen were repeatedly threatened for remissness in executing this mandate of tyranny.[47] In the great plantation of Ulster by James, the city of London had received a grant of extensive lands in the county of Derry, on certain conditions prescribed in their charter. The settlement became flourishing, and enriched the city. But the wealth of London was always invidious to the Crown, as well as to the needy courtiers. On an information filed in the star-chamber for certain alleged breaches of their charter, it was not only adjudged to be forfeited to the king, but a fine of £70,000 was imposed on the city. They paid this enormous mulct; but were kept out of their lands till restored by the long parliament.[48] In this proceeding Charles forgot his duty enough to take a very active share, personally exciting the court to give sentence for himself.[49] Is it then to be a matter of surprise or reproach, that the citizens of London refused him assistance in the Scottish war, and through the ensuing times of confusion, harboured an implacable resentment against a sovereign who had so deeply injured them? We may advert in this place to some other stretches of power, which no one can pretend to justify, though in general they seem to have escaped notice amidst the enormous mass of national grievances. A commission was issued in 1635, to the recorder of London and others, to examine all persons going beyond seas, and tender to them an oath of the most inquisitorial nature.[50] Certain privy-councillors were empowered to enter the house of Sir Robert Cotton, and search his books, records, and papers, setting down such as ought to belong to the Crown.[51] This renders probable what we find in a writer who had the best means of information, that Secretary Windebank, by virtue of an order of council, entered Sir Edward Coke's house while he lay on his death-bed, took away his manuscripts, together with his last will, which was never returned to his family.[52] The high commission court were enabled, by the king's "supreme power ecclesiastical," to examine such as were charged with offences cognisable by them on oath, which many had declined to take, according to the known maxims of English law.[53] It would be improper to notice as illegal or irregular the practice of granting dispensations in particular instances, either from general acts of parliament or the local statutes of colleges. Such a prerogative, at least in the former case, was founded on long usage and judicial recognition. Charles, however, transgressed its admitted boundaries, when he empowered others to dispense with them as there might be occasion. Thus, in a commission to the president and council of the North, directing them to compound with recusants, he in effect suspends the statute which provides that no recusant shall have a lease of that portion of his lands which the law sequestered to the king's use during his recusancy; a clause in this patent enabling the commissioners to grant such leases notwithstanding any law or statute to the contrary. This seems to go beyond the admitted limits of the dispensing prerogative.[54] The levies of tonnage and poundage without authority of parliament, the exaction of monopolies, the extension of the forests, the arbitrary restraints of proclamations, above all, the general exaction of ship-money, form the principal articles of charge against the government of Charles, so far as relates to its inroads on the subject's property. These were maintained by a vigilant and unsparing exercise of jurisdiction in the court of star-chamber. I have, in another chapter, traced the revival of this great tribunal, probably under Henry VIII., in at least as formidable a shape as before the now-neglected statutes of Edward III. and Richard II., which had placed barriers in its way. It was the great weapon of executive power under Elizabeth and James; nor can we reproach the present reign with innovation in this respect, though in no former period had the proceedings of this court been accompanied with so much violence and tyranny. But this will require some fuller explication. _Star-chamber jurisdiction._--I hardly need remind the reader that the jurisdiction of the ancient Concilium regis ordinarium, or court of star-chamber, continued to be exercised, more or less frequently, notwithstanding the various statutes enacted to repress it; and that it neither was supported by the act erecting a new court in the third of Henry VII., nor originated at that time. The records show the star-chamber to have taken cognisance both of civil suits and of offences throughout the time of the Tudors. But precedents of usurped power cannot establish a legal authority in defiance of the acknowledged law. It appears that the lawyers did not admit any jurisdiction in the council, except so far as the statute of Henry VII. was supposed to have given it. "The famous Plowden put his hand to a demurrer to a bill," says Hudson, "because the matter was not within the statute; and, although it was then over-ruled, yet Mr. Serjeant Richardson, thirty years after, fell again upon the same rock, and was sharply rebuked for it."[55] The chancellor, who was the standing president of the court of star-chamber, would always find pretences to elude the existing statutes, and justify the usurpation of this tribunal. The civil jurisdiction claimed and exerted by the star-chamber was only in particular cases, as disputes between alien merchants and Englishmen, questions of prize or unlawful detention of ships, and in general such as now belong to the court of admiralty; some testamentary matters, in order to prevent appeals to Rome, which might have been brought from the ecclesiastical courts; suits between corporations, "of which," says Hudson, "I dare undertake to show above a hundred in the reigns of Henry VII. and Henry VIII., or sometimes between men of great power and interest, which could not be tried with fairness by the common law."[56] For the corruption of sheriffs and juries furnished an apology for the irregular, but necessary, interference of a controlling authority. The ancient remedy, by means of attaint, which renders a jury responsible for an unjust verdict, was almost gone into disuse, and, depending on the integrity of a second jury, not always easy to be obtained; so that in many parts of the kingdom, and especially in Wales, it was impossible to find a jury who would return a verdict against a man of good family, either in a civil or criminal proceeding. The statutes, however, restraining the council's jurisdiction, and the strong prepossession of the people as to the sacredness of freehold rights, made the star-chamber cautious of determining questions of inheritance, which they commonly remitted to the judges; and from the early part of Elizabeth's reign, they took a direct cognisance of any civil suits less frequently than before; partly, I suppose, from the increased business of the court of chancery, and the admiralty court, which took away much wherein they had been wont to meddle; partly from their own occupation as a court of criminal judicature, which became more conspicuous as the other went into disuse.[57] This criminal jurisdiction is that which rendered the star-chamber so potent and so odious an auxiliary of a despotic administration. The offences principally cognisable in this court were forgery, perjury, riot, maintenance, fraud, libel, and conspiracy.[58] But besides these, every misdemeanour came within the proper scope of its enquiry; those especially of public importance, and for which the law, as then understood, had provided no sufficient punishment. For the judges interpreted the law in early times with too great narrowness and timidity; defects which, on the one hand, raised up the over-ruling authority of the court of chancery, as the necessary means of redress to the civil suitor who found the gates of justice barred against him by technical pedantry; and on the other, brought this usurpation and tyranny of the star-chamber upon the kingdom by an absurd scrupulosity about punishing manifest offences against the public good. Thus corruption, breach of trust, and malfeasance in public affairs, or attempts to commit felony, seem to have been reckoned not indictable at common law, and came in consequence under the cognisance of the star-chamber.[59] In other cases its jurisdiction was merely concurrent; but the greater certainty of conviction, and the greater severity of punishment, rendered it incomparably more formidable than the ordinary benches of justice. The law of libel grew up in this unwholesome atmosphere, and was moulded by the plastic hands of successive judges and attorneys-general. Prosecutions of this kind, according to Hudson, began to be more frequent from the last years of Elizabeth, when Coke was attorney-general; and it is easy to conjecture what kind of interpretation they received. To hear a libel sung or read, says that writer, and to laugh at it, and make merriment with it, has ever been held a publication in law. The gross error that it is not a libel if it be true, has long since, he adds, been exploded out of this court.[60] Among the exertions of authority practised in the star-chamber which no positive law could be brought to warrant, he enumerates "punishments of breach of proclamations before they have the strength of an act of parliament; which this court hath stretched as far as ever any act of parliament did. As in the 41st of Elizabeth, builders of houses in London were sentenced, and their houses ordered to be pulled down, and the materials to be distributed to the benefit of the parish where the building was; which disposition of the goods soundeth as a great extremity, and beyond the warrant of our laws; and yet, surely, very necessary, if anything would deter men from that horrible mischief of increasing that head which is swoln to a great hugeness already."[61] The mode of process was sometimes of a summary nature; the accused person being privately examined, and his examination read in the court, if he was thought to have confessed sufficient to deserve sentence, it was immediately awarded without any formal trial or written process. But the more regular course was by information filed at the suit of the attorney-general, or in certain cases, of a private relator. The party was brought before the court by writ of subpoena; and having given bond with sureties not to depart without leave, was to put in his answer upon oath, as well to the matters contained in the information, as to special interrogatories. Witnesses were examined upon interrogatories, and their dispositions read in court. The course of proceeding on the whole seems to have nearly resembled that of the chancery.[62] _Punishments inflicted by the star-chamber._--It was held competent for the court to adjudge any punishment short of death. Fine and imprisonment were of course the most usual. The pillory, whipping, branding, and cutting off the ears, grew into use by degrees. In the reign of Henry VII. and Henry VIII., we are told by Hudson, the fines were not so ruinous as they have been since, which he ascribes to the number of bishops who sat in the court, and inclined to mercy; "and I can well remember," he says, "that the most reverend Archbishop Whitgift did ever constantly maintain the liberty of the free charter, that men ought to be fined, _salvo contenemento_. But they have been of late imposed according to the nature of the offence, and not the estate of the person. The slavish punishment of whipping," he proceeds to observe, "was not introduced till a great man of the common law, and otherwise a worthy justice, forgot his place of session, and brought it in this place too much in use."[63] It would be difficult to find precedents for the aggravated cruelties inflicted on Leighton, Lilburne, and others; but instances of cutting off the ears may be found under Elizabeth.[64] The reproach, therefore, of arbitrary and illegal jurisdiction does not wholly fall on the government of Charles. They found themselves in possession of this almost unlimited authority. But doubtless, as far as the history of proceedings in the star-chamber are recorded, they seem much more numerous and violent in the present reign than in the two preceding. Rushworth has preserved a copious selection of cases determined before this tribunal. They consist principally of misdemeanours, rather of an aggravated nature; such as disturbances of the public peace, assaults accompanied with a good deal of violence, conspiracies, and libels. The necessity, however, for such a paramount court to restrain the excesses of powerful men no longer existed, since it can hardly be doubted that the common administration of the law was sufficient to give redress in the time of Charles the First; though we certainly do find several instances of violence and outrage by men of a superior station in life, which speak unfavourably for the state of manners in the kingdom. But the object of drawing so large a number of criminal cases into the star-chamber seems to have been twofold: first, to inure men's minds to an authority more immediately connected with the Crown than the ordinary courts of law, and less tied down to any rules of pleading or evidence; secondly, to eke out a scanty revenue by penalties and forfeitures. Absolutely regardless of the provision of the Great Charter, that no man shall be amerced even to the full extent of his means, the councillors of the star-chamber inflicted such fines as no court of justice, in the present reduced value of money, would think of imposing. Little objection indeed seems to lie, in a free country, and with a well-regulated administration of justice, against the imposition of weighty pecuniary penalties, due consideration being had of the offence and the criminal. But, adjudged by such a tribunal as the star-chamber, where those who inflicted the punishment reaped the gain, and sat, like famished birds of prey, with keen eyes and bended talons, eager to supply for a moment, by some wretch's ruin, the craving emptiness of the exchequer, this scheme of enormous penalties became more dangerous and subversive of justice, though not more odious, than corporal punishment. A gentleman of the name of Allington was fined £12,000 for marrying his niece. One who had sent a challenge to the Earl of Northumberland was fined £5000; another for saying the Earl of Suffolk was a base lord, £4000 to him, and a like sum to the king. Sir David Forbes, for opprobrious words against Lord Wentworth, incurred £5000 to the king, and £3000 to the party. On some soap-boilers, who had not complied with the requisitions of the newly incorporated company, mulcts were imposed of £1500 and £1000. One man was fined and set in the pillory for engrossing corn, though he only kept what grew on his own land, asking more in a season of dearth than the overseers of the poor thought proper to give.[65] Some arbitrary regulations with respect to prices may be excused by a well-intentioned, though mistaken, policy. The charges of inns and taverns were fixed by the judges. But, even in those, a corrupt motive was sometimes blended. The company of vintners, or victuallers, having refused to pay a demand of the lord treasurer, one penny a quart for all wine drank in their houses, the star-chamber, without information filed or defence made, interdicted them from selling or dressing victuals till they submitted to pay forty shillings for each tun of wine to the king.[66] It is evident that the strong interest of the court in these fines must not only have had a tendency to aggravate the punishment, but to induce sentences of condemnation on inadequate proof. From all that remains of proceedings in the star-chamber, they seem to have been very frequently as iniquitous as they were severe. In many celebrated instances, the accused party suffered less on the score of any imputed offence than for having provoked the malice of a powerful adversary, or for notorious dissatisfaction with the existing government. Thus Williams, Bishop of Lincoln, once lord-keeper, the favourite of King James, the possessor for a season of the power that was turned against him, experienced the rancorous and ungrateful malignity of Laud; who, having been brought forward by Williams into the favour of the court, not only supplanted by his intrigues, and incensed the king's mind against his benefactor, but harassed his retirement by repeated persecutions.[67] It will sufficiently illustrate the spirit of these times to mention that the sole offence imputed to the Bishop of Lincoln in the last information against him in the star-chamber was, that he had received certain letters from one Osbaldiston, master of Westminster School, wherein some contemptuous nickname was used to denote Laud.[68] It did not appear that Williams had ever divulged these letters. But it was held that the concealment of a libellous letter was a high misdemeanour. Williams was therefore adjudged to pay £5000 to the king, and £3000 to the archbishop, to be imprisoned during pleasure, and to make a submission; Osbaldiston to pay a still heavier fine, to be deprived of all his benefices, to be imprisoned and make submission; and moreover to stand in the pillory before his school in Dean's-yard, with his ears nailed to it. This man had the good fortune to conceal himself, but the Bishop of Lincoln, refusing to make the required apology, lay above three years in the Tower, till released at the beginning of the long parliament. It might detain me too long to dwell particularly on the punishments inflicted by the court of star-chamber in this reign. Such historians as have not written in order to palliate the tyranny of Charles, and especially Rushworth, will furnish abundant details, with all those circumstances that portray the barbarous and tyrannical spirit of those who composed that tribunal. Two or three instances are so celebrated that I cannot pass them over. Leighton, a Scots divine, having published an angry libel against the hierarchy, was sentenced to be publicly whipped at Westminster and set in the pillory, to have one side of his nose slit, one ear cut off, and one side of his cheek branded with a hot iron, to have the whole of this repeated the next week at Cheapside, and to suffer perpetual imprisonment in the Fleet.[69] Lilburne, for dispersing pamphlets against the bishops, was whipped from the Fleet prison to Westminster, there set in the pillory, and treated afterwards with great cruelty.[70] Prynne, a lawyer of uncommon erudition and a zealous puritan, had printed a bulky volume, called _Histriomastix_, full of invectives against the theatre, which he sustained by a profusion of learning. In the course of this, he adverted to the appearance of courtesans on the Roman stage, and by a satirical reference in his index seemed to range all female actors in the class.[71] The queen, unfortunately, six weeks after the publication of Prynne's book, had performed a part in a mask at court. This passage was accordingly dragged to light by the malice of Peter Heylin, a chaplain of Laud, on whom the archbishop devolved the burthen of reading this heavy volume in order to detect its offences. Heylin, a bigoted enemy of everything puritanical, and not scrupulous as to veracity, may be suspected of having aggravated, if not misrepresented, the tendency of a book much more tiresome than seditious. Prynne, however, was already obnoxious, and the star-chamber adjudged him to stand twice in the pillory, to be branded in the forehead, to lose both his ears, to pay a fine of £5000, and to suffer perpetual imprisonment. The dogged puritan employed the leisure of a gaol in writing a fresh libel against the hierarchy. For this, with two other delinquents of the same class, Burton a divine, and Bastwick a physician, he stood again at the bar of that terrible tribunal. Their demeanour was what the court deemed intolerably contumacious, arising in fact from the despair of men who knew that no humiliation would procure them mercy.[72] Prynne lost the remainder of his ears in the pillory; and the punishment was inflicted on them all with extreme and designed cruelty, which they endured, as martyrs always endure suffering, so heroically as to excite a deep impression of sympathy and resentment in the assembled multitude.[73] They were sentenced to perpetual confinement in distant prisons. But their departure from London, and their reception on the road, were marked by signal expressions of popular regard; and their friends resorting to them even in Launceston, Chester, and Carnarvon castles, whither they were sent, an order of council was made to transport them to the isles of the Channel. It was the very first act of the long parliament to restore these victims of tyranny to their families. Punishments by mutilation, though not quite unknown to the English law, had been of rare occurrence; and thus inflicted on men whose station appeared to render the ignominy of whipping and branding more intolerable, they produced much the same effect as the still greater cruelties of Mary's reign, in exciting a detestation for that ecclesiastical dominion which protected itself by means so atrocious. _Character of Laud._--The person on whom public hatred chiefly fell, and who proved in a far more eminent degree than any other individual the evil genius of this unhappy sovereign, was Laud. His talents, though enabling him to acquire a large portion of theological learning, seem to have been by no means considerable. There cannot be a more contemptible work than his Diary; and his letters to Strafford display some smartness, but no great capacity. He managed indeed his own defence, when impeached, with some ability; but on such occasions, ordinary men are apt to put forth a remarkable readiness and energy. Laud's inherent ambition had impelled him to court the favour of Buckingham, of Williams, and of both the kings under whom he lived, till he rose to the see of Canterbury on Abbot's death, in 1633. No one can deny that he was a generous patron of letters, and as warm in friendship as in enmity. But he had placed before his eyes the aggrandisement, first of the church, and next of the royal prerogative, as his end and aim in every action. Though not literally destitute of religion, it was so subordinate to worldly interest, and so blended in his mind with the impure alloy of temporal pride, that he became an intolerant persecutor of the puritan clergy, not from bigotry, which in its usual sense he never displayed, but systematic policy. And being subject, as his friends call it, to some infirmities of temper, that is, choleric, vindictive, harsh, and even cruel to a great degree, he not only took a prominent share in the severities of the star-chamber, but, as his correspondence shows, perpetually lamented that he was restrained from going further lengths.[74] Laud's extraordinary favour with the king, through which he became a prime adviser in matters of state, rendered him secretly obnoxious to most of the council, jealous, as ministers must always be, of a churchman's overweening ascendancy. His faults, and even his virtues, contributed to this odium. For being exempt from the thirst of lucre, and, though in the less mature state of his fortunes a subtle intriguer, having become frank through heat of temper and self-confidence, he discountenanced all schemes to serve the private interest of courtiers at the expense of his master's exhausted treasury, and went right onward to his object, the exaltation of the Church and Crown. He aggravated the invidiousness of his own situation, and gave an astonishing proof of his influence, by placing Juxon, Bishop of London, a creature of his own, in the greatest of all posts, that of lord high-treasurer. Though Williams had lately been lord-keeper of the seal, it seemed more preposterous to place the treasurer's staff in the hands of a churchman, and of one so little distinguished even in his own profession, that the archbishop displayed his contempt of the rest of the council, especially Cottington, who aspired to it, by such a recommendation.[75] He had previously procured the office of secretary of state for Windebank. But, though overawed by the king's infatuated partiality, the faction adverse to Laud were sometimes able to gratify their dislike, or to manifest their greater discretion, by opposing obstacles to his impetuous spirit. _Lord Strafford._--Of these impediments, which a rash and ardent man calls lukewarmness, indolence, and timidity, he frequently complains in his correspondence with the lord-deputy of Ireland--that Lord Wentworth, so much better known by the title of Earl of Strafford, which he only obtained the year before his death, that we may give it him by anticipation, whose doubtful fame and memorable end have made him nearly the most conspicuous character of a reign so fertile in recollections. Strafford had in his early years sought those local dignities to which his ambition probably was at that time limited, the representation of the county of York and the post of _custos rotulorum_, through the usual channel of court favour. Slighted by the Duke of Buckingham, and mortified at the preference shown to the head of a rival family, Sir John Saville, he began to quit the cautious and middle course he had pursued in parliament, and was reckoned among the opposers of the administration after the accession of Charles.[76] He was one of those who were made sheriffs of their counties, in order to exclude them from the parliament of 1626. This inspired so much resentment, that he signalised himself as a refuser of the arbitrary loan exacted the next year, and was committed in consequence to prison. He came to the third parliament with a determination to make the court sensible of his power, and possibly with some real zeal for the liberties of his country. But patriotism unhappily, in his self-interested and ambitious mind, was the seed sown among thorns. He had never lost sight of his hopes from the court; even a temporary reconciliation with Buckingham had been effected in 1627, which the favourite's levity soon broke; and he kept up a close connection with the treasurer Weston. Always jealous of a rival, he contracted a dislike for Sir John Eliot, and might suspect that he was likely to be anticipated by that more distinguished patriot in royal favours.[77] The hour of Wentworth's glory was when Charles assented to the petition of right, in obtaining which, and in overcoming the king's chicane and the hesitation of the Lords, he had been pre-eminently conspicuous. From this moment he started aside from the path of true honour; and being suddenly elevated to the peerage and a great post, the presidency of the council of the North, commenced a splendid but baleful career, that terminated at the scaffold.[78] After this fatal apostasy he not only lost all solicitude about those liberties which the petition of right had been designed to secure, but became their deadliest and most shameless enemy. The council of the North was erected by Henry VIII. after the suppression of the great insurrection of 1536. It had a criminal jurisdiction in Yorkshire and the four more northern counties, as to riots, conspiracies, and acts of violence. It had also, by its original commission, a jurisdiction in civil suits, where either of the parties were too poor to bear the expenses of a process at common law; in which case the council might determine, as it seems, in a summary manner, and according to equity. But this latter authority had been held illegal by the judges under Elizabeth.[79] In fact, the lawfulness of this tribunal in any respect was, to say the least, highly problematical. It was regulated by instructions issued from time to time under the great seal. Wentworth spared no pains to enlarge the jurisdiction of his court. A commission issued in 1632, empowering the council of the North to hear and determine all offences, misdemeanours, suits, debates, controversies, demands, causes, things, and matters whatsoever therein contained, within certain precincts, namely, from the Humber to the Scots frontier. They were specially appointed to hear and determine divers offences, according to the course of the star-chamber, whether provided for by act of parliament or not; to hear complaints according to the rules of the court of chancery, and stay proceedings at common law by injunction; to attach persons by their serjeant in any part of the realm.[80] These inordinate powers, the soliciting and procuring of which, especially by a person so well versed in the laws and constitution, appears to be of itself a sufficient ground for impeachment, were abused by Strafford to gratify his own pride, as well as to intimidate the opposers of arbitrary measures. Proofs of this occur in the prosecution of Sir David Foulis, in that of Mr. Bellasis, in that of Mr. Maleverer, for the circumstances of which I refer the reader to more detailed history.[81] Without resigning his presidency of the northern council, Wentworth was transplanted in 1633 to a still more extensive sphere, as lord-deputy of Ireland. This was the great scene on which he played his part; it was here that he found abundant scope for his commanding energy and imperious passions. The Richelieu of that island, he made it wealthier in the midst of exactions, and, one might almost say, happier in the midst of oppressions. He curbed subordinate tyranny; but his own left a sting behind it that soon spread a deadly poison over Ireland. But of his merits and his injustice towards that nation I shall find a better occasion to speak. Two well-known instances of his despotic conduct in respect to single persons may just be mentioned; the deprivation and imprisonment of the lord chancellor Loftus for not obeying an order of the privy council to make such a settlement as they prescribed on his son's marriage--a stretch of interference with private concerns which was aggravated by the suspected familiarity of the lord-deputy with the lady who was to reap advantage from it;[82] and, secondly, the sentence of death passed by a council of war on Lord Mountnorris, in Strafford's presence, and evidently at his instigation, on account of some very slight expressions which he had used in private society. Though it was never the deputy's intention to execute this judgment of his slaves, but to humiliate and trample upon Mountnorris, the violence and indecency of his conduct in it, his long persecution of the unfortunate prisoner after the sentence, and his glorying in the act at all times, and even on his own trial, are irrefragable proofs of such vindictive bitterness as ought, if there were nothing else, to prevent any good man from honouring his memory.[83] _Correspondence between Laud and Strafford._--The haughty and impetuous primate found a congenial spirit in the lord-deputy. They unbosom to each other, in their private letters, their ardent thirst to promote the king's service by measures of more energy than they were permitted to exercise. Do we think the administration of Charles during the interval of parliaments rash and violent? They tell us it was over-cautious and slow. Do we revolt from the severities of the star-chamber? To Laud and Strafford they seemed the feebleness of excessive lenity. Do we cast on the Crown lawyers the reproach of having betrayed their country's liberties? We may find that, with their utmost servility, they fell far behind the expectations of the court, and their scruples were reckoned the chief shackles on the half-emancipated prerogative. The system which Laud was longing to pursue in England, and which Strafford approved, is frequently hinted at by the word Thorough. "For the state," says he, "indeed, my lord, I am for Thorough; but I see that both thick and thin stays somebody, where I conceive it should not, and it is impossible to go thorough alone."[84] "I am very glad" (in another letter) "to read your lordship so resolute, and more to hear you affirm that the footing of them that go thorough for our master's service is not upon fee, as it hath been. But you are withal upon so many Ifs, that by their help you may preserve any man upon ice, be it never so slippery. As first, if the common lawyers may be contained within their ancient and sober bounds; if the word Thorough be not left out, as I am certain it is; if we grow not faint; if we ourselves be not in fault; if we come not to a _peccatum ex te_ Israel; if others will do their parts as thoroughly as you promise for yourself, and justly conceive of me. Now I pray, with so many and such Ifs as these, what may not be done, and in a brave and noble way? But can you tell when these Ifs will meet, or be brought together? Howsoever, I am resolved to go on steadily in the way which you have formerly seen me go; so that (to put in one _if_ too) if anything fail of my hearty desires for the king and the church's service, the fault shall not be mine."[85] "As for my marginal note" (he writes in another place), "I see you deciphered it well" (they frequently corresponded in cipher), "and I see you make use of it too; do so still, thorough and thorough. Oh that I were where I might go so too! but I am shackled between delays and uncertainties! you have a great deal of honour for your proceedings; go on a God's name." "I have done," he says some years afterwards, "with expecting of Thorough on this side."[86] It is evident that the remissness of those with whom he was joined in the administration, in not adopting or enforcing sufficiently energetic measures, is the subject of the archbishop's complaint. Neither he nor Strafford loved the treasurer Weston, nor Lord Cottington, both of whom had a considerable weight in the council. But it is more difficult to perceive in what respects the Thorough system was disregarded. He cannot allude to the church, which he absolutely governed through the high-commission court. The inadequate punishments, as he thought them, imposed on the refractory, formed a part, but not the whole, of his grievance. It appears to me that the great aim of these two persons was to effect the subjugation of the common lawyers. Some sort of tenderness for those constitutional privileges, so indissolubly interwoven with the laws they administered, adhered to the judges, even while they made great sacrifices of their integrity at the instigation of the Crown. In the case of habeas corpus, in that of ship-money, we find many of them display a kind of half-compliance, a reservation, a distinction, an anxiety to rest on precedents, which, though it did not save their credit with the public, impaired it at court. On some more fortunate occasions, as we have seen, they even manifested a good deal of firmness in resisting what was urged on them. Chiefly, however, in matter of prohibitions issuing from the ecclesiastical courts, they were uniformly tenacious of their jurisdiction. Nothing could expose them more to Laud's ill-will. I should not deem it improbable that he had formed, or rather adopted from the canonists, a plan, not only of rendering the spiritual jurisdiction independent, but of extending it to all civil causes, unless perhaps in questions of freehold.[87] The presumption of common lawyers, and the difficulties they threw in the way of the church and Crown, are frequent themes with the two correspondents. "The church," says Laud, "is so bound up in the forms of the common law, that it is not possible for me or for any man to do that good which he would, or is bound to do. For your lordship sees, no man clearer, that they which have gotten so much power in and over the church will not let go their hold; they have indeed fangs with a witness, whatsoever I was once said in passion to have."[88] Strafford replies: "I know no reason but you may as well rule the common lawyers in England as I, poor beagle, do here; and yet that I do, and will do, in all that concerns my master, at the peril of my head. I am confident that the king, being pleased to set himself in the business, is able, by his wisdom and ministers, to carry any just and honourable action through all imaginary opposition, for real there can be none; that to start aside for such panic fears, fantastic apparitions as a Prynne or an Eliot shall set up, were the meanest folly in the whole world; that the debts of the Crown being taken off, you may govern as you please; and most resolute I am that work may be done without borrowing any help forth of the king's lodgings, and that it is as downright a _peccatum ex te_ Israel as ever was, if all this be not affected with speed and ease."[89]--Strafford's indignation at the lawyers breaks out on other occasions. In writing to Lord Cottington, he complains of a judge of assize who had refused to receive the king's instructions to the council of the North in evidence, and beseeches that he may be charged with this great misdemeanour before the council-board. "I confess," he says, "I disdain to see the gownmen in this sort hang their noses over the flowers of the crown."[90] It was his endeavour in Ireland, as well as in Yorkshire, to obtain the right of determining civil suits. "I find," he says, "that my Lord Falkland was restrained by proclamation not to meddle in any cause between party and party, which did certainly lessen his power extremely: I know very well the common lawyers will be passionately against it, who are wont to put such a prejudice upon all other professions, as if none were to be trusted or capable to administer justice but themselves; yet how well this suits with monarchy, when they monopolise all to be governed by their year-books, you in England have a costly experience; and I am sure his majesty's absolute power is not weaker in this kingdom, where hitherto the deputy and council-board have had a stroke with them."[91] The king indulged him in this, with a restriction as to matters of inheritance. The cruelties exercised on Prynne and his associates have generally been reckoned among the great reproaches of the primate. It has sometimes been insinuated that they were rather the act of other counsellors than his own. But his letters, as too often occurs, belie this charitable excuse. He expresses in them no sort of humane sentiment towards these unfortunate men, but the utmost indignation at the oscitancy of those in power, which connived at the public demonstrations of sympathy. "A little more quickness," he says, "in the government would cure this itch of libelling. But what can you think of Thorough when there shall be such slips in business of consequence? What say you to it, that Prynne and his fellows should be suffered to talk what they pleased while they stood in the pillory, and win acclamations from the people? etc. By that which I have above written, your lordship will see that the Triumviri will be far enough from being kept dark. It is true that, when this business is spoken of, some men speak as your lordship writes, that it concerns the king and government more than me. But when anything comes to be acted against them, be it but the execution of a sentence, in which lies the honour and safety of all justice, yet there is little or nothing done, nor shall I ever live to see it otherwise."[92] The lord deputy fully concurred in this theory of vigorous government. They reasoned on such subjects as Cardinal Granville and the Duke of Alva had reasoned before them. "A prince," he says in answer, "that loseth the force and example of his punishments, loseth withal the greatest part of his dominion. If the eyes of the Triumviri be not sealed so close as they ought, they may perchance spy us out a shrewd turn, when we least expect it. I fear we are hugely mistaken, and misapply our charity thus pitying of them, where we should indeed much rather pity ourselves. It is strange indeed," he observes in another place, "to see the frenzy which possesseth the vulgar now-a-days, and that the just displeasure and chastisement of a state should produce greater estimation, nay reverence, to persons of no consideration either for life or learning, than the greatest and highest trust and employments shall be able to procure for others of unspotted conversation, of most eminent virtues and deepest knowledge: a grievous and overspreading leprosy! but where you mention a remedy, sure it is not fitted for the hand of every physician; the cure under God must be wrought by one Æsculapius alone, and that in my weak judgment to be effected rather by corrosives than lenitives: less than Thorough will not overcome it; there is a cancerous malignity in it, which must be cut forth, which long since rejected all other means, and therefore to God and him I leave it."[93] The honourable reputation that Strafford had earned before his apostasy stood principally on two grounds; his refusal to comply with a requisition of money without consent of parliament, and his exertions in the petition of right which declared every such exaction to be contrary to law. If any therefore be inclined to palliate his arbitrary proceedings and principles in the executive administration, his virtue will be brought to a test in the business of ship-money. If he shall be found to have given countenance and support to that measure, there must be an end of all pretence to integrity or patriotism. But of this there are decisive proofs. He not only made every exertion to enforce its payment in Yorkshire during the years 1639 and 1640, for which the peculiar dangers of that time might furnish some apology, but long before, in his correspondence with Laud, speaks thus of Mr. Hampden, deploring, it seems, the supineness that had permitted him to dispute the Crown's claim with impunity. "Mr. Hampden is a great brother [i.e. a puritan], and the very genius of that people leads them always to oppose, as well civilly as ecclesiastically, all that ever authority ordains for them; but in good faith, were they right served, they should be whipt home into their right wits, and much beholden they should be to any one that would thoroughly take pains with them in that kind."[94] "In truth I still wish, and take it also to be a very charitable one, Mr. H. and others to his likeness were well whipt into their right senses; if that the rod be so used as that it smarts not, I am the more sorry."[95] Hutton, one of the judges who had been against the Crown in this case, having some small favour to ask of Strafford, takes occasion in his letter to enter on the subject of ship-money, mentioning his own opinion in such a manner as to give the least possible offence, and with all qualifications in favour of the Crown; commending even Lord Finch's argument on the other side.[96] The lord deputy, answering his letter after much delay, says, "I must confess, in a business of so mighty importance, I shall the less regard the forms of pleading, and do conceive, as it seems my Lord Finch pressed that the power of levies of forces at sea and land for the very, not feigned, relief and safety of the public, is a property of sovereignty, as, were the Crown willing, it could not divest it thereof: Salus populi suprema lex; nay, in cases of extremity even above acts of parliament," etc. It cannot be forgotten that the loan of 1626, for refusing which Wentworth had suffered imprisonment, had been demanded in a season of incomparably greater difficulty than that when ship-money was levied: at the one time war had been declared against both France and Spain, at the other the public tranquillity was hardly interrupted by some bickerings with Holland. In avowing therefore the king's right to levy money in cases of exigency, and to be the sole judge of that exigency, he uttered a shameless condemnation of his former virtues. But lest any doubt should remain of his perfect alienation from all principles of limited monarchy, I shall produce still more conclusive proofs. He was strongly and wisely against the war with Spain, into which Charles's resentment at finding himself the dupe of that power in the business of the Palatinate nearly hurried him in 1637. At this time Strafford laid before the king a paper of considerations dissuading him from this course, and pointing out particularly his want of regular troops.[97] "It is plain indeed," he says, "that the opinion delivered by the judges, declaring the lawfulness of the assessment for the shipping, is the greatest service that profession hath done the Crown in my time. But unless his majesty hath the like power declared to raise a land army upon the same exigent of state, the Crown seems to me to stand but upon one leg at home, to be considerable but by halves to foreign powers. Yet this sure methinks convinces a power for the sovereign to raise payments for land forces, and consequently submits to his wisdom and ordinance the transporting of the money or men into foreign states. Seeing then that this piece well fortified for ever vindicates the royalty at home from under the conditions and restraints of subjects, renders us also abroad even to the greatest kings the most considerable monarchy in Christendom; seeing again, this is a business to be attempted and won from the subject in time of peace only, and the people first accustomed to these levies, when they may be called upon, as by way of prevention for our future safety, and keep his majesty thereby also moderator of the peace of Christendom, rather than upon the bleeding evil of an instant and active war; I beseech you, what piety to alliances is there, that should divert a great and wise king forth of a path, which leads so manifestly, so directly, to the establishing his own throne, and the secure and independent seating of himself and posterity in wealth, strength, and glory, far above any their progenitors, verily in such a condition as there were no more hereafter to be wished them in this world but that they would be very exact in their care for the just and moderate government of their people, which might minister back to them again the plenties and comforts of life, that they would be most searching and severe in punishing the oppressions and wrongs of their subjects, as well in the case of the public magistrate as of private persons, and lastly to be utterly resolved to exercise this power only for public and necessary uses; to spare them as much and often as were possible; and that they never be wantonly vitiated or misapplied to any private pleasure or person whatsoever? This being indeed the very only means to preserve, as may be said, the chastity of these levies, and to recommend their beauty so far forth to the subject, as being thus disposed, it is to be justly hoped, they will never grudge the parting with their monies.... "Perhaps it may be asked, where shall so great a sum be had? My answer is, procure it from the subjects of England, and profitably for them too. By this means preventing the raising upon them a land army for defence of the kingdom, which would be by many degrees more chargeable; and hereby also insensibly gain a precedent, and settle an authority and right in the Crown to levies of that nature, which thread draws after it many huge and great advantages, more proper to be thought on at some other seasons than now." It is however remarkable that, with all Strafford's endeavours to render the king absolute, he did not intend to abolish the use of parliaments. This was apparently the aim of Charles; but, whether from remains of attachment to the ancient forms of liberty surviving amidst his hatred of the real essence, or from the knowledge that a well-governed parliament is the best engine for extracting money from the people, this able minister entertained very different views. He urged accordingly the convocation of one in Ireland, pledging himself for the experiment's success. And in a letter to a friend, after praising all that had been done in it, "Happy it were," he proceeds, "if we might live to see the like in England, everything in its season; but in some cases it is as necessary there be a time to forget, as in others to learn; and howbeit the peccant (if I may without offence so term it) humour be not yet wholly purged forth, yet do I conceive it in the way, and that once rightly corrected and prepared, we may hope for a parliament of a sound constitution indeed; but this must be the work of time, and of his majesty's excellent wisdom; and this time it becomes us all to pray for and wait for, and when God sends it, to make the right use of it."[98] These sentiments appear honourable and constitutional. But let it not be hastily conceived that Strafford was a friend to the necessary and ancient privileges of those assemblies to which he owed his rise. A parliament was looked upon by him as a mere instrument of the prerogative. Hence he was strongly against permitting any mutual understanding among its members, by which they might form themselves into parties, and acquire strength and confidence by previous concert. "As for restraining any private meetings either before or during parliament, saving only publicly in the house, I fully rest in the same opinion, and shall be very watchful and attentive therein, as a means which may rid us of a great trouble, and prevent many stones of offence, which otherwise might by malignant spirits be cast in among us."[99] And acting on this principle, he kept a watch on the Irish parliament, to prevent those intrigues which his experience in England had taught him to be the indispensable means of obtaining a control over the Crown. Thus fettered and kept in awe, no one presuming to take a lead in debate from uncertainty of support, parliaments would have become such mockeries of their venerable name as the joint contempt of the court and nation must soon have annihilated. Yet so difficult is it to preserve this dominion over any representative body, that the king judged far more discreetly than Strafford in desiring to dispense entirely with their attendance. The passages which I have thus largely quoted will, I trust, leave no doubt in any reader's mind that the Earl of Strafford was party in a conspiracy to subvert the fundamental laws and liberties of his country. For here are not, as on his trial, accusations of words spoken in heat, uncertain as to proof, and of ambiguous interpretation; nor of actions variously reported, and capable of some explanation; but the sincere unbosoming of the heart in letters never designed to come to light. And if we reflect upon this man's cool-blooded apostasy on the first lure to his ambition, and on his splendid abilities, which enhanced the guilt of that desertion, we must feel some indignation at those who have palliated all his iniquities, and even ennobled his memory with the attributes of patriot heroism. Great he surely was, since that epithet can never be denied without paradox to so much comprehension of mind, such ardour and energy, such courage and eloquence; those commanding qualities of soul, which, impressed upon his dark and stern countenance, struck his contemporaries with mingled awe and hate, and still live in the unfading colours of Vandyke.[100] But it may be reckoned as a sufficient ground for distrusting any one's attachment to the English constitution, that he reveres the name of the Earl of Strafford. _Conduct of Laud in the church prosecution of puritans._--It was perfectly consonant to Laud's temper and principles of government to extirpate, as far as in him lay, the lurking seeds of disaffection to the Anglican church. But the course he followed could in nature have no other tendency than to give them nourishment. His predecessor Abbot had perhaps connived to a limited extent at some irregularities of discipline in the puritanical clergy, judging not absurdly that their scruples at a few ceremonies, which had been aggravated by a vexatious rigour, would die away by degrees, and yield to that centripetal force, that moral attraction towards uniformity and obedience to custom, which Providence has rendered one of the great preservatives of political society. His hatred to popery and zeal for Calvinism, which undoubtedly were narrow and intolerant, as well as his avowed disapprobation of those churchmen who preached up arbitrary power, gained for this prelate the favour of the party denominated puritan. In all these respects, no man could be more opposed to Abbot than his successor. Besides reviving the prosecutions for nonconformity in their utmost strictness, wherein many of the other bishops vied with their primate, he most injudiciously, not to say wickedly endeavoured, by innovations of his own, and by exciting alarms in the susceptible consciences of pious men, to raise up new victims whom he might oppress. Those who made any difficulty about his novel ceremonies, or even who preached on the Calvinistic side, were harassed by the high commission court as if they had been actual schismatics.[101] The most obnoxious, if not the most indefensible, of these prosecutions were for refusing to read what was called the Book of Sports; namely, a proclamation, or rather a renewal of that issued in the late reign, that certain feasts or wakes might be kept, and a great variety of pastimes used on Sundays after evening service.[102] This was reckoned, as I have already observed, one of the tests of puritanism. But whatever superstition there might be in that party's judaical observance of the day they called the sabbath, it was in itself preposterous, and tyrannical in its intention, to enforce the reading in churches of this licence or rather recommendation of festivity. The precise clergy refused in general to comply with the requisition, and were suspended or deprived in consequence. Thirty of them were excommunicated in the single diocese of Norwich; but as that part of England was rather conspicuously puritanical, and the bishop, one Wren, was the worst on the bench, it is highly probable that the general average fell short of this.[103] Besides the advantage of detecting a latent bias in the clergy, it is probable that the high church prelates had a politic end in the Book of Sports. The morose gloomy spirit of puritanism was naturally odious to the young and to men of joyous tempers. The comedies of that age are full of sneers at their formality. It was natural to think that, by enlisting the common propensities of mankind to amusement on the side of the established church, they might raise a diversion against that fanatical spirit which can hardly long continue to be the prevailing temperament of a nation. The church of Rome, from which no ecclesiastical statesman would disdain to take a lesson, had for many ages perceived, and acted upon the principle, that it is the policy of governments to encourage a love of pastime and recreation in the people; both because it keeps them from speculating on religious and political matters, and because it renders them more cheerful, and less sensible to the evils of their condition; and it may be remarked by the way, that the opposite system, so long pursued in this country, whether from a puritanical spirit, or from the wantonness of petty authority, has no such grounds of policy to recommend it. Thus much at least is certain, that when the puritan party employed their authority in proscribing all diversions, in enforcing all the Jewish rigour about the sabbath, and gave that repulsive air of austerity to the face of England of which so many singular illustrations are recorded, they rendered their own yoke intolerable to the youthful and gay; nor did any other cause perhaps so materially contribute to bring about the Restoration. But mankind love sport as little as prayer by compulsion; and the immediate effect of the king's declaration was to produce a far more scrupulous abstinence from diversions on Sundays than had been practised before. The resolution so evidently taken by the court, to admit of no half conformity in religion, especially after Laud had obtained an unlimited sway over the king's mind, convinced the puritans that England could no longer afford them an asylum. The state of Europe was not such as to encourage their emigration, though many were well received in Holland. But, turning their eyes to the newly-discovered regions beyond the Atlantic Ocean, they saw a secure place of refuge from present tyranny, and a boundless prospect for future hope. They obtained from the Crown the charter of Massachusetts Bay in 1629. About three hundred and fifty persons, chiefly or wholly of the independent sect, sailed with the first fleet. So many followed in the subsequent years, that these New England settlements have been supposed to have drawn near half a million of money from the mother country before the civil wars.[104] Men of a higher rank than the first colonists, and now become hopeless alike of the civil and religious liberties of England, men of capacious and commanding minds, formed to be the legislators and generals of an infant republic, the wise and cautious Lord Say, the acknowledged chief of the independent sect, the brave, open, and enthusiastic Lord Brook, Sir Arthur Haslerig, Hampden, ashamed of a country for whose rights he had fought alone, Cromwell, panting with energies that he could neither control nor explain, and whose unconquerable fire was still wrapt in smoke to every eye but that of his kinsman Hampden, were preparing to embark for America, when Laud, for his own and his master's curse, produced an order of council to stop their departure.[105] Besides the reflections which such an instance of destructive infatuation must suggest, there are two things not unworthy to be remarked: first, that these chiefs of the puritan sect, far from entertaining those schemes of overturning the government at home that have been imputed to them, looked only in 1638 to escape from imminent tyranny; and, secondly, that the views of the archbishop were not so much to render the Church and Crown secure from the attempts of disaffected men, as to gratify a malignant humour by persecuting them. _Favour shown to catholics--Tendency to their religion._--These severe proceedings of the court and hierarchy became more odious on account of their suspected leaning, or at least notorious indulgence, towards popery. With some fluctuations, according to circumstances or changes of influence in the council, the policy of Charles was to wink at the domestic exercise of the catholic religion, and to admit its professors to pay compositions for recusancy which were not regularly enforced.[106] The catholics willingly submitted to this mitigated rigour, in the sanguine expectation of far more prosperous days. I shall, of course, not censure this part of his administration. Nor can we say that the connivance at the resort of catholics to the queen's chapel in Somerset House, though they used it with much ostentation, and so as to give excessive scandal, was any more than a just sense of toleration would have dictated.[107] Unfortunately, the prosecution of other sectaries renders it difficult to ascribe such a liberal principle to the council of Charles the First. It was evidently true, what the nation saw with alarm, that a proneness to favour the professors of this religion, and to a considerable degree the religion itself, was at the bottom of a conduct so inconsistent with their system of government. The king had been persuaded, in 1635, through the influence of the queen, and probably of Laud,[108] to receive privately, as an accredited agent from the court of Rome, a secular priest, named Panzani, whose ostensible instructions were to effect a reconciliation of some violent differences that had long subsisted between the secular and regular clergy of his communion. The chief motive however of Charles was, as I believe, so far to conciliate the pope as to induce him to withdraw his opposition to the oath of allegiance, which had long placed the catholic laity in a very invidious condition, and widened a breach which his majesty had some hopes of closing. For this purpose he offered any reasonable explanation which might leave the oath free from the slightest appearance of infringing the papal supremacy. But it was not the policy of Rome to make any concession, or even enter into any treaty, that might tend to impair her temporal authority. It was better for her pride and ambition that the English catholics should continue to hew wood and draw water, their bodies the law's slaves, and their souls her own, than, by becoming the willing subjects of a protestant sovereign, that they should lose that sense of dependency and habitual deference to her commands in all worldly matters, which states wherein their faith stood established had ceased to display. She gave therefore no encouragement to the proposed explanations of the oath of allegiance, and even instructed her nuncio Con, who succeeded Panzani, to check the precipitance of the English catholics in contributing men and money towards the army raised against Scotland, in 1639.[109] There might indeed be some reasonable suspicion that the court did not play quite fairly with this body, and was more eager to extort what it could from their hopes than to make any substantial return. The favour of the administration, as well as the antipathy that every parliament had displayed towards them, not unnaturally rendered the catholics, for the most part, asserters of the king's arbitrary power.[110] This again increased the popular prejudice. But nothing excited so much alarm as the perpetual conversions to their faith. These had not been quite unusual in any age since the Reformation, though the balance had been very much inclined to the opposite side. They became however under Charles the news of every day; protestant clergymen in several instances, but especially women of rank, becoming proselytes to a religion so seductive to the timid reason and sensible imagination of that sex. They whose minds have never strayed into the wilderness of doubt, vainly deride such as sought out the beaten path their fathers had trodden in old times; they whose temperament gives little play to the fancy and sentiment, want power to comprehend the charm of superstitious illusions, the satisfaction of the conscience in the performance of positive rites, especially with privation or suffering, the victorious self-gratulation of faith in its triumph over reason, the romantic tenderness that loves to rely on female protection, the graceful associations of devotion with all that the sense or the imagination can require--the splendid vestment, the fragrant censer, the sweet sounds of choral harmony, and the sculptured form that an intense piety half endows with life. These springs were touched, as the variety of human character might require, by the skilful hands of Romish priests, chiefly jesuits, whose numbers in England were about 250,[111] concealed under a lay garb, and combining the courteous manners of gentlemen with a refined experience of mankind, and a logic in whose labyrinths the most practical reasoner was perplexed. Against these fascinating wiles the puritans opposed other weapons from the same armoury of human nature; they awakened the pride of reason, the stern obstinacy of dispute, the names, so soothing to the ear, of free enquiry and private judgment. They inspired an abhorrence of the adverse party that served as a barrier against insidious approaches. But far different principles actuated the prevailing party in the church of England. A change had for some years been wrought in its tenets, and still more in its sentiments, which, while it brought the whole body into a sort of approximation to Rome, made many individuals shoot as it were from their own sphere, on coming within the stronger attraction of another. The charge of inclining towards popery, brought by one of our religious parties against Laud and his colleagues with invidious exaggeration, has been too indignantly denied by another. Much indeed will depend on the definition of that obnoxious word; which one may restrain to an acknowledgment of the supremacy in faith and discipline of the Roman see; while another comprehends in it all those tenets which were rejected as corruptions of Christianity at the Reformation; and a third may extend it to the ceremonies and ecclesiastical observances which were set aside at the same time. In this last and most enlarged sense, which the vulgar naturally adopted, it is notorious that all the innovations of the school of Laud were so many approaches, in the exterior worship of the church, to the Roman model. Pictures were set up or repaired; the communion-table took the name of an altar; it was sometimes made of stone; obeisances were made to it; the crucifix was sometimes placed upon it; the dress of the officiating priests became more gaudy; churches were consecrated with strange and mystical pageantry.[112] These petty superstitions, which would of themselves have disgusted a nation accustomed to despise as well as abhor the pompous rites of the catholics, became more alarming from the evident bias of some leading churchmen to parts of the Romish theology. The doctrine of a real presence, distinguishable only by vagueness of definition from that of the church of Rome, was generally held.[113] Montagu, Bishop of Chichester, already so conspicuous, and justly reckoned the chief of the Romanising faction, went a considerable length towards admitting the invocation of saints; prayers for the dead, which lead at once to the tenet of purgatory, were vindicated by many; in fact, there was hardly any distinctive opinion of the church of Rome, which had not its abettors among the bishops, or those who wrote under their patronage. The practice of auricular confession, which an aspiring clergy must so deeply regret, was frequently inculcated as a duty. And Laud gave just offence by a public declaration, that in the disposal of benefices he should, in equal degrees of merit, prefer single before married priests.[114] They incurred scarcely less odium by their dislike of the Calvinistic system, and by what ardent men construed into a dereliction of the protestant cause, a more reasonable and less dangerous theory on the nature and reward of human virtue, than that which the fanatical and presumptuous spirit of Luther had held forth as the most fundamental principle of his Reformation. It must be confessed that these English theologians were less favourable to the papal supremacy than to most other distinguishing tenets of the catholic church. Yet even this they were inclined to admit in a considerable degree, as a matter of positive, though not divine institution; content to make the doctrine and discipline of the fifth century the rule of their bastard reform. An extreme reverence for what they called the primitive church had been the source of their errors. The first reformers had paid little regard to that authority. But as learning, by which was then meant an acquaintance with ecclesiastical antiquity, grew more general in the church, it gradually inspired more respect for itself; and men's judgment in matters of religion came to be measured by the quantity of their erudition.[115] The sentence of the early writers, including the fifth and perhaps sixth centuries, if it did not pass for infallible, was of prodigious weight in controversy. No one in the English church seems to have contributed so much towards this relapse into superstition as Andrews, Bishop of Winchester, a man of eminent learning in this kind, who may be reckoned the founder of the school wherein Laud was the most prominent disciple.[116] A characteristic tenet of this party was, as I have already observed, that episcopal government was indispensably requisite to a Christian church.[117] Hence they treated the presbyterians with insolence abroad, and severity at home. A brief to be read in churches for the sufferers in the Palatinate having been prepared, wherein they were said to profess the same religion as ourselves, Laud insisted on this being struck out.[118] The Dutch and Walloon churches in England, which had subsisted since the Reformation, and which various motives of policy had led Elizabeth to protect, were harassed by the primate and other bishops for their want of conformity to the Anglican ritual.[119] The English ambassador, instead of frequenting the Hugonot church at Charenton, as had been the former practice, was instructed to disclaim all fraternity with their sect, and set up in his own chapel the obnoxious altar and the other innovations of the hierarchy.[120] These impolitic and insolent proceedings gave the foreign protestants a hatred of Charles, which they retained through all his misfortunes. This alienation from the foreign churches of the reformed persuasion had scarcely so important an effect in begetting a predilection for that of Rome, as the language frequently held about the Anglican separation. It became usual for our churchmen to lament the precipitancy with which the Reformation had been conducted, and to inveigh against its principal instruments. The catholic writers had long descanted on the lust and violence of Henry, the pretended licentiousness of Anne Boleyn, the rapacity of Cromwell, the pliancy of Cranmer; sometimes with great truth, but with much of invidious misrepresentation. These topics, which have no kind of operation on men accustomed to sound reasoning, produce an unfailing effect on ordinary minds. Nothing incurred more censure than the dissolution of the monastic orders, or at least the alienation of their endowments; acts accompanied, as we must all admit, with great rapacity and injustice, but which the new school branded with the name of sacrilege. Spelman, an antiquary of eminent learning, was led by bigotry or subserviency to compose a wretched tract called the "History of Sacrilege," with a view to confirm the vulgar superstition that the possession of estates alienated from the church entailed a sure curse on the usurper's posterity. There is some reason to suspect that the king entertained a project of restoring all impropriated hereditaments to the church. It is alleged by one who had much access to Laud, that his object in these accommodations was to draw over the more moderate catholics to the English church, by extenuating the differences of her faith, and rendering her worship more palatable to their prejudices.[121] There was, however, good reason to suspect, from the same writer's account, that some leading ecclesiastics entertained schemes of a complete re-union;[122] and later discoveries have abundantly confirmed this suspicion. Such schemes have doubtless been in the minds of men not inclined to offer every sacrifice; and during this very period Grotius was exerting his talents (whether judiciously or otherwise we need not enquire) to make some sort of reconciliation and compromise appear practicable. But we now know that the views of a party in the English church were much more extensive, and went almost to an entire dereliction of the protestant doctrine. The catholics did not fail to anticipate the most favourable consequences from this turn in the church. The _Clarendon State Papers_, and many other documents, contain remarkable proofs of their sanguine and not unreasonable hopes. Weston, the lord treasurer, and Cottington, were already in secret of their persuasion; though the former did not take much pains to promote their interests. No one, however, showed them such decided favour as Secretary Windebank, through whose hands a correspondence was carried on with the court of Rome by some of its agents.[123] They exult in the peaceful and flourishing state of their religion in England as compared with former times. The recusants, they write, were not molested; and if their compositions were enforced, it was rather from the king's want of money than any desire to injure their religion. Their rites were freely exercised in the queen's chapel and those of ambassadors, and, more privately, in the houses of the rich. The church of England was no longer exasperated against them; if there was ever any prosecution, it was to screen the king from the reproach of the puritans. They drew a flattering picture of the resipiscence of the Anglican party; who are come to acknowledge the truth in some articles, and differ in others rather verbally than in substance, or in points not fundamental; who hold all other protestants to be schismatical, and confess the primacy of the holy see, regretting the separation already made, and wishing for re-union; who profess to pay implicit respect to the fathers, and can best be assailed on that side.[124] These letters contain, no doubt, a partial representation; that is, they impute to the Anglican clergy in general, what was only true of a certain number. Their aim was to inspire the court of Rome with more favourable views of that of England, and thus to pave the way for a permission of the oath of allegiance, at least with some modification of its terms. Such flattering tales naturally excited the hopes of the Vatican, and contributed to the mission of Panzani, who was instructed to feel the pulse of the nation, and communicate more unbiassed information to his court than could be expected from the English priests. He confirmed, by his letters, the general truth of the former statements, as to the tendency of the Anglican church, and the favourable dispositions of the court. The king received him secretly, but with much courtesy; the queen and the catholic ministers, Cottington and Windebank, with unreserved confidence. It required all the adroitness of an Italian emissary from the subtlest of courts to meet their demonstrations of friendship without too much committing his employers. Nor did Panzani altogether satisfy the pope, or at least his minister, Cardinal Barberini, in this respect.[125] During the residence of Panzani in England, an extraordinary negotiation was commenced for the reconciliation of the church of England with that of Rome; and, as this fact, though unquestionable, is very little known, I may not be thought to digress in taking particular notice of it. Windebank and Lord Cottington were the first movers in that business; both calling themselves to Panzani catholics, as in fact they were, but claiming all those concessions from the see of Rome which had been sometimes held out in the preceding century. Bishop Montagu soon made himself a party, and had several interviews with Panzani. He professed the strongest desire for a union, and added that he was satisfied both the archbishops, the Bishop of London, and several others of that order, besides many of the inferior clergy, were prepared to acknowledge the spiritual supremacy of the holy see; there being no method of ending controversies but by recurring to some centre of ecclesiastical unity. For himself, he knew no tenet of the Roman church to which he would not subscribe, unless it were that of transubstantiation, though he had some scruples as to communion in one kind. But a congress of moderate and learned men, chosen on each side, might reduce the disputed points into small compass, and confer upon them. This overture being communicated to Rome by its agent, was of course, too tempting to be disregarded, though too ambiguous to be snatched at. The re-union of England to the catholic church, in itself a most important advantage, might, at that particular juncture, during the dubious struggle of the protestant religion in Germany, and its still more precarious condition in France, very probably reduce its adherents throughout Europe to a proscribed and persecuted sect. Panzani was therefore instructed to flatter Montagu's vanity, to manifest a great desire for reconciliation, but not to favour any discussion of controverted points, which had always proved fruitless, and which could not be admitted till the supreme authority of the holy see was recognised. As to all usages founded on positive law, which might be disagreeable to the English nation, they should receive as much mitigation as the case would bear. This, of course, alluded to the three great points of discipline, or ecclesiastical institution--the celibacy of the clergy, the exclusion of the laity from the eucharistical cup, and the Latin liturgy. In the course of the bishop's subsequent interviews, he again mentioned his willingness to acknowledge the pope's supremacy; and assured Panzani that the archbishop was entirely of his mind, but with a great mixture of fear and caution.[126] Three bishops only, Morton, Hall, and Davenant, were obstinately bent against the church of Rome; the rest might be counted moderate.[127] The agent, however, took care to obtain from another quarter a more particular account of each bishop's disposition, and transmitted to Rome a report, which does not appear. Montagu displayed a most unguarded warmth in all this treaty; notwithstanding which, Panzani suspected him of still entertaining some notions incompatible with the catholic doctrine. He behaved with much greater discretion than the bishop; justly, I suppose, distrusting the influence of a man who showed so little capacity for a business of the utmost delicacy. It appears almost certain that Montagu made too free with the name of the archbishop, and probably of many others; and it is well worthy of remark, that the popish party did not entertain any sanguine hopes of the king's conversion. They expected doubtless that, by gaining over the hierarchy, they should induce him to follow; but he had evidently given no reason to imagine that he would precede. A few casual words, not perhaps exactly reported, might sometimes elate their hopes, but cannot excite in us, who are better able to judge than his contemporaries, any reasonable suspicion of his constancy. Yet it is not impossible that he might at one time conceive a union to be more practicable than it really was.[128] The court of Rome omitted no token of civility or good will to conciliate our king's favour. Besides expressions of paternal kindness which Urban lavished on him, Cardinal Barberini gratified his well-known taste by a present of pictures. Charles showed a due sense of these courtesies. The prosecutions of recusants were absolutely stopped, by cashiering the pursuivants who had been employed in the odious office of detecting them. It was arranged that reciprocal diplomatic relations should be established, and consequently that an English agent should constantly reside at the court of Rome, by the nominal appointment of the queen, but empowered to conduct the various negotiations in hand. Through the first person who held this station, a gentleman of the name of Hamilton, the king made an overture on a matter very near to his heart, the restitution of the Palatinate. I have no doubt that the whole of his imprudent tampering with Rome had been considerably influenced by this chimerical hope. But it was apparent to every man of less unsound judgment than Charles, that except the young elector would renounce the protestant faith, he could expect nothing from the intercession of the pope. After the first preliminaries, which she could not refuse to enter upon, the court of Rome displayed no eagerness for a treaty which it found, on more exact information, to be embarrassed with greater difficulties than its new allies had confessed.[129] Whether this subject continued to be discussed during the mission of Con, who succeeded Panzani, is hard to determine; because the latter's memoirs, our unquestionable authority for what has been above related, cease to afford us light. But as Con was a very active intriguer for his court, it is by no means unlikely that he proceeded in the same kind of parley with Montagu and Windebank. Yet whatever might pass between them was intended rather with a view to the general interests of the Roman church, than to promote a reconciliation with that of England, as a separate contracting party. The former has displayed so systematic a policy to make no concession to the reformers, either in matters of belief, wherein, since the council of Trent, she could in fact do nothing, or even, as far as possible, in points of discipline, as to which she judged, perhaps rightly, that her authority would be impaired by the precedent of concession without any proportionate advantage: so unvarying in all cases has been her determination to yield nothing except through absolute force, and to elude force itself by every subtlety that it is astonishing how honest men on the opposite side (men, that is, who seriously intended to preserve any portion of their avowed tenets, not such as Montagu or Heylin,) could ever contemplate the possibility of reconciliation. Upon the present occasion, she manifested some alarm at the boasted approximation of the Anglicans. The attraction of bodies is reciprocal; and the English catholics might, with so much temporal interest in the scale, be impelled more rapidly towards the established church than that church towards them. "Advise the clergy," say the instructions to the nuncio in 1639, "to desist from that foolish, nay rather illiterate and childish, custom of distinction in the protestant and puritan doctrine; and especially this error is so much the greater, when they undertake to prove that protestantism is a degree nearer to the catholic faith than the other. For since both of them be without the verge of the church, it is needless hypocrisy to speak of it, yea, it begets more malice than it is worth."[130] This exceeding boldness of the catholic party, and their success in conversions, which were, in fact, less remarkable for their number than for the condition of the persons, roused the primate himself to some apprehension. He preferred a formal complaint to the king in council against the resort of papists to the queen's chapel, and the insolence of some active zealots about the court.[131] Henrietta, who had courted his friendship, and probably relied on his connivance, if not support, seems never to have forgiven this unexpected attack. Laud gave another testimony of his unabated hostility to popery by republishing with additions his celebrated conference with the jesuit Fisher, a work reckoned the great monument of his learning and controversial acumen. This conference had taken place many years before, at the desire and in the presence of the Countess of Buckingham, the duke's mother. Those who are conversant with literary and ecclesiastical anecdote must be aware that nothing was more usual in the seventeenth century than such single combats under the eye of some fair lady whose religious faith was to depend upon the victory. The wily and polished jesuits had great advantages in these duels, which almost always, I believe, ended in their favour. After fatiguing their gentle arbitress for a time with the tedious fencing of text and citation, till she felt her own inability to award the palm, they came with their prejudices already engaged, to the necessity of an infallible judge; and as their adversaries of the English church had generally left themselves vulnerable on this side, there was little difficulty in obtaining success. Like Hector in the spoils of Patroclus, our clergy had assumed to themselves the celestial armour of authority; but found that, however it might intimidate the multitude, it fitted them too ill to repel the spear that had been wrought in the same furnace. A writer of this school in the age of Charles the First, and incomparably superior to any of the churchmen belonging to it, in the brightness and originality of his genius, Sir Thomas Brown, whose varied talents wanted nothing but the controlling supremacy of good sense to place him in the highest rank of our literature, will furnish a better instance of the prevailing bias than merely theological writings. He united a most acute and sceptical understanding with strong devotional sensibility, the temperament so conspicuous in Pascal and Johnson, and which has a peculiar tendency to seek the repose of implicit faith. "Where the Scripture is silent," says Brown in his _Religio Medici_, "the church is my text; where it speaks, 'tis but my comment." That jesuit must have been a disgrace to his order, who would have asked more than such a concession to secure a proselyte--the right of interpreting whatever was written, and of supplying whatever was not. _Chillingworth._--At this time, however, appeared one man in the field of religious debate, who struck out from that insidious tract, of which his own experience had shown him the perils. Chillingworth, on whom nature had bestowed something like the same constitutional temperament as that to which I have just adverted, except that the reasoning power having a greater mastery, his religious sensibility rather gave earnestness to his love of truth than tenacity to his prejudices, had been induced, like so many others, to pass over to the Roman church. The act of transition, it may be observed, from a system of tenets wherein men had been educated, was in itself a vigorous exercise of free speculation, and might be termed the suicide of private judgment. But in Chillingworth's restless mind there was an inextinguishable scepticism that no opiates could subdue; yet a scepticism of that species which belongs to a vigorous, not that which denotes a feeble understanding. Dissatisfied with his new opinions, of which he had never been really convinced, he panted to breathe the freer air of protestantism, and after a long and anxious investigation returned to the English church. He well redeemed any censure that might have been thrown on him, by his great work in answer to the jesuit Knott, entitled _The Religion of Protestants a Safe Way to Salvation_. In the course of his reflections he had perceived the insecurity of resting the reformation on any but its original basis, the independency of private opinion. This, too, he asserted with a fearlessness and consistency hitherto little known, even within the protestant pale; combining it with another principle, which the zeal of the early reformers had rendered them unable to perceive, and for want of which the adversary had perpetually discomfited them, namely, that the errors of conscientious men do not forfeit the favour of God. This endeavour to mitigate the dread of forming mistaken judgments in religion runs through the whole work of Chillingworth, and marks him as the founder, in this country, of what has been called the latitudinarian school of theology. In this view, which has practically been the most important one of the controversy, it may pass for an anticipated reply to the most brilliant performance on the opposite side, _The History of the Variations of Protestant Churches_; and those who, from a delight in the display of human intellect, or from more serious motives of inquiry, are led to these two master-pieces, will have seen, perhaps, the utmost strength that either party, in the great schism of Christendom, has been able to put forth. This celebrated work, which gained its author the epithet of immortal, is now, I suspect little studied even by the clergy. It is, no doubt, somewhat tedious, when read continuously, from the frequent recurrence of the same strain of reasoning, and from his method of following, sentence by sentence, the steps of his opponent; a method which, while it presents an immediate advantage to controversial writers, as it heightens their reputation at the expense of their adversary, is apt to render them very tiresome to posterity. But the closeness and precision of his logic, which this mode of incessant grappling with his antagonist served to display, are so admirable, perhaps, indeed, hardly rivalled in any book beyond the limits of strict science, that the study of Chillingworth might tend to chastise the verbose and indefinite declamation so characteristic of the present day. His style, though by no means elegant or imaginative, has much of a nervous energy that rises into eloquence. He is chiefly, however, valuable for a true liberality and tolerance; far removed from indifference, as may well be thought of one whose life was consumed in searching for truth, but diametrically adverse to those pretensions which seem of late years to have been regaining ground among the Anglican divines. _Hales._--The latitudinarian principles of Chillingworth appear to have been confirmed by his intercourse with a man, of whose capacity his contemporaries entertained so high an admiration, that he acquired the distinctive appellation of the ever-memorable John Hales. This testimony of so many enlightened men is not to be disregarded, even if we should be of opinion that the writings of Hales, though abounding with marks of an unshackled mind, do not quite come up to the promise of his name. He had, as well as Chillingworth, borrowed from Leyden, perhaps a little from Racow, a tone of thinking upon some doctrinal points as yet nearly unknown, and therefore highly obnoxious in England. More hardy than his friend, he wrote a short treatise on schism, which tended, in pretty blunt and unlimited language, to overthrow the scheme of authoritative decisions in any church, pointing at the imposition of unnecessary ceremonies and articles of faith, as at once the cause and the apology of separation. This having been circulated in manuscript, came to the knowledge of Laud, who sent for Hales to Lambeth, and questioned him as to his opinions on that matter. Hales, though willing to promise that he would not publish the tract, receded not a jot from his free notions of ecclesiastical power; which he again advisedly maintained in a letter to the archbishop, now printed among his works. The result was equally honourable to both parties; Laud bestowing a canonry of Windsor on Hales, which, after so bold an avowal of his opinion, he might accept without the slightest reproach. A behaviour so liberal forms a singular contrast to the rest of this prelate's history. It is a proof, no doubt, that he knew how to set such a value on great abilities and learning, as to forgive much that wounded his pride. But besides that Hales had not made public this treatise on schism, for which I think he could not have escaped the high commission court, he was known by Laud to stand far aloof from the Calvinistic sectaries, having long since embraced in their full extent the principles of Episcopius, and to mix no alloy of political faction with the philosophical hardiness of his speculations.[132] These two remarkable ornaments of the English church, who dwelt apart like stars, to use the fine expression of a living poet, from the vulgar bigots of both her factions, were accustomed to meet, in the society of some other eminent persons, at the house of Lord Falkland near Burford. One of those, who, then in a ripe and learned youth, became afterwards so conspicuous a name in our annals and our literature, Mr. Hyde, the chosen bosom-friend of his host, has dwelt with affectionate remembrance on the conversations of that mansion. His marvellous talent of delineating character, a talent, I think, unrivalled by any writer (since, combining the bold outline of the ancient historians with the analytical minuteness of De Retz and St. Simon, it produces a higher effect than either), is never more beautifully displayed than in that part of the memoirs of his life, where Falkland, Hales, Chillingworth, and the rest of his early friends, pass over the scene. For almost thirty ensuing years, Hyde himself becomes the companion of our historical reading. Seven folio volumes contain his _History of the Rebellion_, his _Life_, and the _Letters_, of which a large portion are his own. We contract an intimacy with an author who has poured out to us so much of his heart. Though Lord Clarendon's chief work seems to me not quite accurately styled a history, belonging rather to the class of memoirs,[133] yet the very reasons of this distinction, the long circumstantial narrative of events wherein he was engaged, and the slight notice of those which he only learned from others, render it more interesting, if not more authentic. Conformably to human feelings, though against the rules of historical composition, it bears the continual impress of an intense concern about what he relates. This depth of personal interest, united frequently with an eloquence of the heart and imagination that struggles through an involved, incorrect, and artificial diction, makes it, one would imagine, hardly possible for those most alien from his sentiments to read his writings without some portion of sympathy. But they are on this account not a little dangerous to the soundness of our historical conclusions; the prejudices of Clarendon, and his negligence as to truth, being full as striking as his excellencies, and leading him not only into many erroneous judgments, but into frequent inconsistencies. _Animadversions on Clarendon's account of this period._--These inconsistencies are nowhere so apparent as in the first or introductory book of his history, which professes to give a general view of the state of affairs before the meeting of the long parliament. It is certainly the most defective part of his work. A strange mixture of honesty and disingenuousness pervades all he has written of the early years of the king's reign; retracting, at least in spirit, in almost every page what has been said in the last, from a constant fear that he may have admitted so much against the government as to make his readers impute too little blame to those who opposed it. Thus, after freely censuring the exactions of the Crown, whether on the score of obsolete prerogative or without any just pretext at all, especially that of ship-money, and confessing that "those foundations of right, by which men valued their security, were never, to the apprehension and understanding of wise men, in more danger of being destroyed," he turns to dwell on the prosperous state of the kingdom during this period, "enjoying the greatest calm and the fullest measure of felicity that any people in any age for so long time together have been blessed with," till he works himself up to a strange paradox, that "many wise men thought it a time wherein those two adjuncts, which Nerva was edified for uniting, Imperium et Libertas, were as well reconciled as is possible." Such wisdom was not, it seems, the attribute of the nation. "These blessings," he says, "could but enable, not compel, us to be happy; we wanted that sense, acknowledgement, and value of our own happiness which all but we had, and took pains to make, when we could not find, ourselves miserable. There was, in truth, a strange absence of understanding in most, and a strange perverseness of understanding in the rest; the court full of excess, idleness, and luxury; the country full of pride, mutiny, and discontent; every man more troubled and perplexed at that they called the violation of the law, than delighted or pleased with the observation of all the rest of the charter; never imputing the increase of their receipts, revenue, and plenty, to the wisdom, virtue, and merit of the Crown, but objecting every small imposition to the exorbitancy and tyranny of the government."[134] This strange passage is as inconsistent with other parts of the same chapter, and with Hyde's own conduct at the beginning of the parliament, as it is with all reasonable notions of government.[135] For if kings and ministers may plead in excuse for violating one law, that they have not transgressed the rest (though it would be difficult to name any violation of law that Charles had not committed); if this were enough to reconcile their subjects, and to make dissatisfaction pass for a want or perversion of understanding, they must be in a very different predicament from all others who live within the pale of civil society, whose obligation to obey its discipline is held to be entire and universal. By this great writer's own admissions, the decision in the case of ship-money had shaken every man's security for the enjoyment of his private inheritance. Though as yet not weighty enough to be actually very oppressive, it might, and, according to the experience of Europe, undoubtedly would, become such by length of time and peaceable submission. We may acknowledge without hesitation, that the kingdom had grown during this period into remarkable prosperity and affluence. The rents of land were very considerably increased, and large tracts reduced into cultivation. The manufacturing towns, the sea-ports, became more populous and flourishing. The metropolis increased in size with a rapidity that repeated proclamations against new buildings could not restrain. The country houses of the superior gentry throughout England were built on a scale which their descendants, even in days of more redundant affluence, have seldom ventured to emulate. The kingdom was indebted for this prosperity to the spirit and industry of the people, to the laws which secure the Commons from oppression, and which, as between man and man, were still fairly administered, to the opening of fresh channels of trade in the eastern and western worlds (rivulets, indeed, as they seem to us, who float in the full tide of modern commerce, yet at that time no slight contributions to the stream of public wealth); but above all, to the long tranquillity of the kingdom, ignorant of the sufferings of domestic, and seldom much affected by the privations of foreign, war. It was the natural course of things, that wealth should be progressive in such a land. Extreme tyranny, such as that of Spain in the Netherlands, might, no doubt, have turned back the current. A less violent, but long-continued despotism, such as has existed in several European monarchies, would, by the corruption and incapacity which absolute governments engender, have retarded its advance. The administration of Charles was certainly not of the former description. Yet it would have been an excess of loyal stupidity in the nation to have attributed their riches to the wisdom or virtue of the court, which had injured the freedom of trade by monopolies and arbitrary proclamations, and driven away industrious manufacturers by persecution. If we were to draw our knowledge from no other book than Lord Clarendon's _History_, it would still be impossible to avoid the inference, that misconduct on the part of the Crown, and more especially of the church, was the chief, if not the sole, cause of these prevailing discontents. At the time when Laud unhappily became Archbishop of Canterbury, "the general temper and humour of the kingdom," he tells us, "was little inclined to the papist, and less to the puritan. There were some late taxes and impositions introduced, which rather angered than grieved the people, who were more than repaired by the quiet peace and prosperity they enjoyed; and the murmurs and discontent that was, appeared to be against the excess of power exercised by the Crown, and supported by the judges in Westminster Hall. The church was not repined at, nor the least inclination to alter the government and discipline thereof, or to change the doctrine. Nor was there at that time any considerable number of persons of any valuable condition throughout the kingdom, who did wish either; and the cause of so prodigious a change in so few years after was too visible from the effects." This cause, he is compelled to admit, in a passage too diffuse to be extracted, was the passionate and imprudent behaviour of the primate. Can there be a stronger proof of the personal prepossessions, which for ever distort the judgment of this author, than that he should blame the remissness of Abbot, who left things in so happy a condition; and assert that Laud executed the trust of solely managing ecclesiastical affairs, "infinitely to the service and benefit" of that church which he brought to destruction? Were it altogether true, what is doubtless much exaggerated, that in 1633 very little discontent at the measures of the court had begun to prevail, it would be utterly inconsistent with experience and observation of mankind to ascribe the almost universal murmurs of 1639 to any other cause than bad government. But Hyde, attached to Laud and devoted to the king, shrunk from the conclusion that his own language would afford; and his piety made him seek in some mysterious influences of Heaven, and in a judicial infatuation of the people, for the causes of those troubles which the fixed and uniform dispensations of Providence were sufficient to explain.[136] _Scots troubles, and distress of the government._--It is difficult to pronounce how much longer the nation's signal forbearance would have held out, if the Scots had not precipitated themselves into rebellion. There was still a confident hope that parliament must soon or late be assembled; and it seemed equally impolitic and unconstitutional to seek redress by any violent means. The patriots, too, had just cause to lament the ambition of some whom the court's favour subdued, and the levity of many more whom its vanities allured. But the unexpected success of the tumultuous rising at Edinburgh against the service-book revealed the impotence of the English government. Destitute of money, and neither daring to ask it from a parliament nor to extort it by any fresh demand from the people, they hesitated whether to employ force or to submit to the insurgents. In the exchequer, as Lord Northumberland wrote to Strafford, there was but the sum of £200; with all the means that could be devised, not above £110,000 could be raised; the magazines were all unfurnished, and the people were so discontented by reason of the multitude of projects daily imposed upon them, that he saw reason to fear a great part of them would be readier to join with the Scots than to draw their swords in the king's service.[137] "The discontents at home," he observes some months afterwards, "do rather increase than lessen, there being no course taken to give any kind of satisfaction. The king's coffers were never emptier than at this time; and to us that have the honour to be near about him, no way is yet known how he will find means either to maintain or begin a war without the help of his people."[138] Strafford himself dissuaded a war in such circumstances, though hardly knowing what other course to advise.[139] He had now awaked from the dreams of infatuated arrogance, to stand appalled at the perils of his sovereign, and his own. In the letters that passed between him and Laud after the Scots troubles had broken out, we read their hardly concealed dismay, and glimpses of "the two-handed engine at the door." Yet pride forbade them to perceive or confess the real causes of this portentous state of affairs. They fondly laid the miscarriage of the business of Scotland on failure in the execution, and an "over-great desire to do all quietly."[140] In this imminent necessity, the king had recourse to those who had least cause to repine at his administration. The catholic gentry, at the powerful interference of their queen, made large contributions towards the campaign of 1639. Many of them volunteered their personal service. There was, indeed, a further project, so secret that it is not mentioned, I believe, till very lately, by any historical writer. This was to procure 10,000 regular troops from Flanders, in exchange for so many recruits to be levied for Spain in England and Ireland. These troops were to be for six months in the king's pay. Colonel Gage, a catholic, and the negotiator of this treaty, hints that the pope would probably contribute money, if he had hopes of seeing the penal laws repealed; and observes, that with such an army the king might both subdue the Scots, and at the same time keep his parliament in check, so as to make them come to his conditions.[141] The treaty, however, was never concluded. Spain was far more inclined to revenge herself for the bad faith she imputed to Charles, than to lend him any assistance. Hence, when, in the next year, he offered to declare war against Holland, as soon as he should have subdued the Scots, for a loan of 1,200,000 crowns, the Spanish ambassador haughtily rejected the proposition.[142] The pacification, as it was termed, of Berwick in the summer of 1639 has been represented by several historians as a measure equally ruinous and unaccountable. That it was so far ruinous, as it formed one link in the chain that dragged the king to destruction, is most evident; but it was both inevitable and easy of explanation. The treasury, whatever Clarendon and Hume may have said, was perfectly bankrupt.[143] The citizens of London, on being urged by the council for a loan, had used as much evasion as they dared.[144] The writs for ship-money were executed with greater difficulty, several sheriffs willingly acquiescing in the excuses made by their counties.[145] Sir Francis Seymour, brother to the Earl of Hertford, and a man, like his brother, of very moderate principles, absolutely refused to pay it, though warned by the council to beware how he disputed its legality.[146] Many of the Yorkshire gentry, headed by Sir Marmaduke Langdale, combined to refuse its payment.[147] It was impossible to rely again on catholic subscriptions, which the court of Rome, as I have mentioned above, instigated perhaps by that of Madrid, had already tried to restrain. The Scots were enthusiastic, nearly unanimous, and entire masters of their country. The English nobility, in general, detested the archbishop, to whose passion they ascribed the whole mischief, and feared to see the king become despotic in Scotland. If the terms of Charles's treaty with his revolted subjects were unsatisfactory and indefinite, enormous in concession, and yet affording a pretext for new encroachments, this is no more than the common lot of the weaker side. There was one possible, though not under all the circumstances very likely, method of obtaining the sinews of war; the convocation of parliament. This many, at least, of the king's advisers appear to have long desired, could they but have vanquished his obstinate reluctance. This is an important observation: Charles, and he perhaps alone, unless we reckon the queen, seems to have taken a resolution of superseding absolutely and for ever the legal constitution of England. The judges, the peers, Lord Strafford, nay, if we believe his dying speech, the primate himself, retained enough of respect for the ancient laws, to desire that parliaments should be summoned, whenever they might be expected to second the views of the monarch. They felt that the new scheme of governing by proclamations and writs of ship-money could not, and ought not to be permanent in England. The king reasoned more royally, and indeed much better. He well perceived that it was vain to hope for another parliament so constituted as those under the Tudors. He was ashamed (and that pernicious woman at his side would not fail to encourage the sentiment) that his brothers of France and Spain should have achieved a work, which the sovereign of England, though called an absolute king by his courtiers, had scarcely begun. All mention therefore of calling parliament grated on his ear. The declaration published at the dissolution of the last, that he should account it presumption for any to prescribe a time to him for calling parliaments, was meant to extend even to his own counsellors. He rated severely Lord-Keeper Coventry for a suggestion of this kind.[148] He came with much reluctance into Wentworth's proposal of summoning one in Ireland, though the superior control of the Crown over parliaments in that kingdom was pointed out to him. "The king," says Cottington, "at the end of 1638, will not hear of a parliament; and he is told by a committee of learned men, that there is no other way."[149] This repugnance to meet his people, and his inability to carry on the war by any other methods, produced the ignominious pacification at Berwick. But, as the Scots, grown bolder by success, had after this treaty almost thrown off all subjection, and the renewal of the war, or loss of the sovereignty over that kingdom, appeared necessary alternatives, overpowered by the concurrent advice of his council, and especially of Strafford, he issued writs for that which met in April 1640.[150] They told him that, making trial once more of the ancient and ordinary way, he would leave his people without excuse, if that should fail; and have wherewithal to justify himself to God and the world, if he should be forced contrary to his inclinations to use extraordinary means, rather than through the peevishness of some factious spirits to suffer his state and government to be lost.[151] _Parliament of April 1640._--It has been universally admitted that the parliament which met on the 13th of April 1640 was as favourably disposed towards the king's service, and as little influenced by their many wrongs, as any man of ordinary judgment could expect.[152] But though cautiously abstaining from any intemperance, so much as to reprove a member for calling ship-money an abomination (no very outrageous expression), they sufficiently manifested a determination not to leave their grievances unredressed. Petitions against the manifold abuses in church and state covered their table; Pym, Rudyard, Waller, Lord Digby, and others more conspicuous afterwards, excited them by vigorous speeches; they appointed a committee to confer with the Lords, according to some precedents of the last reign, on a long list of grievances, divided into ecclesiastical innovations, infringements of the propriety of goods, and breaches of the privilege of parliament. They voted a request of the peers, who, Clarendon says, were more entirely at the king's disposal, that they would begin with the business of supply, and not proceed to debate on grievances till afterwards, to be a high breach of privilege.[153] There is not the smallest reason to doubt that they would have insisted on redress in all those particulars, with at least as much zeal as any former parliament, and that the king, after obtaining his subsidies, would have put an end to their remonstrances, as he had done before.[154] In order to obtain the supply he demanded, namely, twelve subsidies to be paid in three years, which, though unusual, was certainly not beyond his exigencies, he offered to release his claim to ship-money, in any manner they should point out. But this the Commons indignantly repelled. They deemed ship-money the great crime of his administration, and the judgment against Mr. Hampden, the infamy of those who pronounced it. Till that judgment should be annulled, and those judges punished, the national liberties must be as precarious as ever. Even if they could hear of a compromise with so flagrant a breach of the constitution, and of purchasing their undoubted rights, the doctrine asserted in Mr. Hampden's case by the Crown lawyers, and adopted by some of the judges, rendered all stipulations nugatory. The right of taxation had been claimed as an absolute prerogative so inherent in the Crown, that no act of parliament could take it away. All former statutes, down to the petition of right, had been prostrated at the foot of the throne; by what new compact were the present parliament to give a sanctity more inviolable to their own?[155] It will be in the recollection of my readers, that while the Commons were deliberating whether to promise any supply before the redress of grievances, and in what measure, Sir Henry Vane, the secretary, told them that the king would accept nothing less than the twelve subsidies he had required; in consequence of which the parliament was dissolved next day. Clarendon, followed by several others, has imputed treachery in this to Vane, and told us that the king regretted so much what he had done, that he wished, had it been practicable, to recall the parliament after its dissolution. This is confirmed, as to Vane, by the queen herself, in that interesting narrative which she communicated to Madame de Motteville.[156] Were it not for such authorities, seemingly independent of each other, yet entirely tallying, I should have deemed it more probable that Vane, with whom the solicitor-general Herbert had concurred, acted solely by the king's command. Charles, who feared and hated all parliaments, had not acquiesced in the scheme of calling the present, till there was no other alternative; an insufficient supply would have left him in a more difficult situation than before, as to the use of those extraordinary means, as they were called, which his disposition led him to prefer: the intention to assail parts of his administration more dear to him than ship-money, and especially the ecclesiastical novelties, was apparent. Nor can we easily give him credit for this alleged regret at the step he had taken, when we read the declaration he put forth, charging the Commons with entering on examination of his government in an insolent and audacious manner, traducing his administration of justice, rendering odious his officers and ministers of state, and introducing a way of bargaining and contracting with the king, as if nothing ought to be given him by them, but what he should purchase either by quitting somewhat of his royal prerogative, or by diminishing and lessening his revenue.[157] The unconstitutional practice of committing to prison some of the most prominent members, and searching their houses for papers, was renewed. And having broken loose again from the restraints of law, the king's sanguine temper looked to such a triumph over the Scots in the coming campaign, as no prudent man could think probable. This dissolution of parliament in May 1640 appears to have been a very fatal crisis for the king's popularity. Those who, with the loyalty natural to Englishmen, had willingly ascribed his previous misgovernment to evil counsels, could not any longer avoid perceiving his mortal antipathy to any parliament that should not be as subservient as the cortes of Castile. The necessity of some great change became the common theme. "It is impossible," says Lord Northumberland, at that time a courtier, "that things can long continue in the condition they are now in; so general a defection in this kingdom hath not been known in the memory of any!"[158] Several of those who thought most deeply on public affairs now entered into a private communication with the Scots insurgents. It seems probable from the well-known story of Lord Saville's forged letter, that there had been very little connection of this kind until the present summer.[159] And we may conjecture that during this ominous interval, those great projects, which were displayed in the next session, acquired consistence and ripeness by secret discussions in the houses of the Earl of Bedford and Lord Say. The king meanwhile experienced aggravated misfortune and ignominy in his military operations. Ship-money indeed was enforced with greater rigour than before, several sheriffs and the lord mayor of London being prosecuted in the star-chamber for neglecting to levy it. Some citizens were imprisoned for refusing a loan. A new imposition was laid on the counties, under the name of coat-and-conduct-money, for clothing and defraying the travelling charges of the new levies.[160] A state of actual invasion, the Scots having passed the Tweed, might excuse some of these irregularities, if it could have been forgotten that the war itself was produced by the king's impolicy, and if the nation had not been prone to see friends and deliverers rather than enemies in the Scottish army. They were, at the best indeed, troublesome and expensive guests to the northern counties which they occupied; but the cost of their visit was justly laid at the king's door. Various arbitrary resources having been suggested in the council, and abandoned as inefficient and impracticable, such as the seizing the merchants' bullion in the mint, or issuing a debased coin; the unhappy king adopted the hopeless scheme of convening a great council of all the peers at York, as the only alternative of a parliament.[161] It was foreseen that this assembly would only advise the king to meet his people in a legal way. The public voice could no longer be suppressed. The citizens of London presented a petition to the king, complaining of grievances, and asking for a parliament. This was speedily followed by one signed by twelve peers of popular character.[162] The lords assembled at York almost unanimously concurred in the same advice, to which the king, after some hesitation, gave his assent. They had more difficulty in bringing about a settlement with the Scots; the English army, disaffected and undisciplined, had already made an inglorious retreat; and even Strafford, though passionately against a treaty, did not venture to advise an engagement.[163] The majority of the peers however over-ruled all opposition; and in the alarming posture of his affairs, Charles had no resource but the dishonourable pacification of Rippon. Anticipating the desertion of some who had partaken in his counsels, and conscious that others would more stand in need of his support than be capable of affording any, he awaited in fearful suspense the meeting of parliament. FOOTNOTES: [1] "It hath so happened," he says, "by the disobedient and seditious carriage of those said ill-affected persons of the House of Commons, that we and our regal authority and commandment have been so highly contemned as our kingly office cannot bear, nor any former age can parallel." Rymer, xix. 30. [2] Rymer, xix. 62. [3] Whitelock's _Memorials_, p. 14. Whitelock's father was one of the judges of the king's bench; his son takes pains to exculpate him from the charge of too much compliance, and succeeded so well with the long parliament that when they voted Chief-Justice Hyde and Justice Jones guilty of delay in not bailing these gentlemen, they voted also that Croke and Whitelock were not guilty of it. The proceedings, as we now read them, hardly warrant this favourable distinction. _Parl. Hist._ ii. 869, 876. [4] Strode's act is printed in Hatsell's _Precedents_, vol. i. p. 80, and in several other books, as well as in the great edition of _Statutes of the Realm_. It is worded, like many of our ancient laws, so confusedly, as to make its application uncertain; but it rather appears to me not to have been intended as a public act. [5] _State Trials_, vol. iii. from Rushworth. [6] Hatsell, pp. 212, 242. [7] Rushworth. [8] Rushworth; _State Trials_, iii. 373; Whitelock, p. 12. Chambers applied several times for redress to the long parliament on account of this and subsequent injuries, but seems to have been cruelly neglected, while they were voting large sums to those who had suffered much less, and died in poverty. [9] I have remarked in former passages that the rack was much employed, especially against Roman catholics, under Elizabeth. Those accused of the gunpowder conspiracy were also severely tortured; and others in the reign of James. Coke, in the Countess of Shrewsbury's case, 1612 (_State Trials_, ii. 773), mentions it as a privilege of the nobility, that "their bodies are not subject to torture in causâ criminis læsæ majestatis." Yet, in his third Institute, p. 35, he says, the rack in the Tower was brought in by the Duke of Exeter, under Henry VI., and is, therefore, familiarly called the Duke of Exeter's daughter; and after quoting Fortescue to prove the practice illegal, concludes--"There is no law to warrant tortures in this land, nor can they be justified by any prescription, being so lately brought in." Bacon observes, in a tract written in 1603: "In the highest cases of treason, torture is used for discovery, and not for evidence."--i. 393. See also Miss Aikin's _Memoirs of James I._ ii. 158. [10] _State Trials_, iii. 359. This was a very important determination, and put an end to such tyrannical persecution of Roman catholics for bare expressions of opinion as had been used under Elizabeth and James. [11] Rushworth (Abridged), ii. 253; Strafford's _Letters_, ii. 74. [12] Whitelock, 16; Kennet, 63. We find in Rymer, xix. 279, a commission, dated May 6, 1631, enabling the privy-council at all times to come, "to hear and examine all differences which shall arise betwixt any of our courts of justice, especially between the civil and ecclesiastical jurisdictions," etc. This was in all probability contrived by Laud, or some of those who did not favour the common law. But I do not find that anything was done under this commission, which, I need hardly say, was as illegal as most of the king's other proceedings. [13] 2 Inst. 593. The regulations contained in the statute de militibus, 1 Ed. II., though apparently a temporary law, seem to have been considered by Coke as permanently binding. Yet in this statute the estate requiring knighthood, or a composition for it, is fixed at £20 per annum. [14] According to a speech of Mr. Hyde in the long parliament, not only military tenants, but all others, and even lessees and merchants, were summoned before the council on this account. _Parl. Hist._ ii. 948. This was evidently illegal; especially if the Statutum de militibus was in force, which by express words exempts them. See Mr. Brodie's _Hist. of British Empire_, ii. 282. There is still some difficulty about this, which I cannot clear up, nor comprehend why the title, if it could be had for asking, was so continually declined; unless it were, as Mr. B. hints, that the fees of knighthood greatly exceeded the composition. Perhaps none who could not prove their gentility were admitted to the honour, though the fine was extorted from them. It is said that the king got £100,000 by this resource. Macauley, ii. 107. [15] Rushworth Abr. ii. 102. [16] Strafford's _Letters_, i. 335. [17] _Id._ pp. 463, 467. [18] _Id._ ii. 117. It is well known that Charles made Richmond Park by means of depriving many proprietors not only of common rights, but of their freehold lands. Clarendon, i. 176. It is not clear that they were ever compensated; but I think this probable, as the matter excited no great clamour in the long parliament. And there is in Rymer, xx. 585, a commission to Cottington and others, directing them to compound with the owners of lands within the intended enclosures. Dec. 12, 1634. [19] Kennet, 64; Rushworth's Abridg. ii. 132; Strafford's _Letters_, i. 446; Rymer, xix. 323; Laud's _Diary_, 51. [20] Rymer, xx. 340. [21] Kennet, 74, 75. _Strafford Letters_, i. 358. Some petty sea-ports in Sussex refused to pay ship-money; but finding that the sheriff had authority to distrain on them, submitted. The deputy-lieutenants of Devonshire wrote to the council in behalf of some towns a few miles distant from the sea, that they might be spared from this tax, saying it was a novelty. But they were summoned to London for this, and received a reprimand for their interference. _Id._ 372. [22] _Clarendon State Papers_, i. 49, and ii. Append. p. xxvi. [23] This curious intrigue, before unknown, I believe, to history, was brought to light by Lord Hardwicke. _State Papers_, ii. 54. [24] See _Clarendon State Papers_, i. 490, for a proof of the manner in which, through the Hispano-popish party in the cabinet, the house of Austria hoped to dupe and dishonour Charles. [25] _Clarendon State Papers_, i. 109, _et post_. Five English ships out of twenty were to be at the charge of the King of Spain. Besides this agreement, according to which the English were only bound to protect the ships of Spain within their own seas, or the limits claimed as such, there were certain secret articles, signed Dec. 16, 1634; by one of which Charles bound himself, in case the Dutch should not make restitution of some Spanish vessels taken by them within the English seas, to satisfy the court of Spain himself out of ships and goods belonging to the Dutch; and by the second, to give secret instructions to the commanders of his ships, that when those of Spain and Flanders should encounter their enemies at open sea, far from his coasts and limits, they should assist them if over-matched, and should give the like help to the prizes which they should meet, taken by the Dutch, that they might be freed and set at liberty; taking some convenient pretext to justify it, that the Hollanders might not hold it an act of hostility. But no part of this treaty was to take effect till the Imperial ban upon the Elector Palatine should be removed. _Id._ 215. [26] _Clarendon State Papers_, i. 721, 761. [27] _Strafford Papers_, ii. 52, 53, 60, 66. Richlieu sent d'Estrades to London, in 1637, according to Père Orleans, to secure the neutrality of England in case of his attacking the maritime towns of Flanders conjointly with the Dutch. But the ambassador was received haughtily, and the neutrality refused; which put an end to the scheme, and so irritated Richlieu, that he sent a priest named Chamberlain to Edinburgh the same year, in order to foment troubles in Scotland. _Revol. d'Anglet._ iii. 42. This is confirmed by d'Estrades himself. See note in _Sidney Papers_, ii. 447, and Harris's _Life of Charles_, 189; also Lingard, x. 69. The connection of the Scotch leaders with Richlieu in 1639 is matter of notorious history. It has lately been confirmed and illustrated by an important note in Mazure, _Hist. de la Revolution en 1688_, ii. 402. It appears by the above-mentioned note of M. Mazure, that the celebrated letter of the Scots lords, addressed "Au Roy," was really sent, and is extant. There seems reason to think that Henrietta joined the Austrian faction about 1639; her mother being then in England, and very hostile to Richlieu. This is in some degree corroborated by a passage in a letter of Lady Carlisle. _Sidney Papers_, ii. 614. [28] _Sidney Papers_, ii. 613. [29] _Clarendon State Papers_, ii. 16. [30] See the instructions in Rushworth, ii. 214. [31] Rushworth, 253. The same judge declared afterwards, in a charge to the grand jury of York, that ship-money was an inseparable flower of the Crown, glancing at Hutton and Croke for their opposition to it. _Id._ 267. [32] As it is impossible to reconcile the trifling amount of this demand with Hampden's known estate, the tax being probably not much less than sixpence in the pound, it has been conjectured that his property was purposely rated low. But it is hard to perceive any motive for this indulgence; and it seems more likely that a nominal sum was fixed upon in order to try the question; or that it was only assessed on a part of his estate. [33] There seems to have been something unusual, if not irregular, in this part of the proceeding. The barons of the exchequer called in the other judges, not only by way of advice but direction, as the chief baron declares. _State Trials_, 1203. And a proof of this is, that the court of exchequer being equally divided, no judgment could have been given by the barons alone. [34] _State Trials_, iii. 826-1252. [35] Croke, whose conduct on the bench in other political questions was not without blemish, had resolved to give judgment for the king, but was withheld by his wife, who implored him not to sacrifice his conscience for fear of any danger or prejudice to his family, being content to suffer any misery with him, rather than to be an occasion for him to violate his integrity. Whitelock, p. 25. Of such high-minded and inflexible women our British history produces many examples. [36] Laud writes to Lord Wentworth, that Croke and Hutton had both gone against the king very sourly. "The accidents which have followed upon it already are these: First, the faction are grown very bold. Secondly, the king's monies come in a great deal more slowly than they did in former years, and that to a very considerable sum. Thirdly, it puts thoughts into wise and moderate men's heads, which were better out; for they think if the judges, which are behind, do not their parts both exceeding well and thoroughly, it may much distemper this extraordinary and great service." _Strafford Letters_, ii. 170. [37] It is notoriously known that pressure was borne with much more cheerfulness before the judgment for the king, than ever it was before. Clarendon, p. 122. [38] Rushworth Abr. ii. 341; _Clarendon State Papers_, i. 600. It is said by Heylin that the clergy were much spared in the assessment of ship-money. _Life of Laud_, 302. [39] Rymer, _passim_. [40] _Id._ xix. 512. It may be curious to mention some of these. The best turkey was to be sold at 4_s._ 6_d._; the best goose at 2_s._ 4_d._; the best pullet, 1_s._ 8_d._; three eggs for a penny; fresh butter at 5_d._ in summer, at 6_d._ in winter. This was in 1634. [41] _Id._ xx. 113. [42] _Id._ 157. [43] Rymer, xviii. 33, _et alibi_. A commission was granted to the Earl of Arundel and others, May 30, 1625, to enquire what houses, shops, etc., had been built for ten years past, especially since the last proclamation, and to commit the offenders. It recites the care of Elizabeth and James to have the city built in an uniform manner with brick, and also to clear it from under-tenants and base people who live by begging and stealing. _Id._ xviii. 97. [44] Rymer, xix. 375. [45] Rushworth Abr. ii. 232. [46] Rushworth, ii. 79. [47] _Id._ p. 313. [48] Rushworth Abr. iii. 123; Whitelock, p. 35; _Strafford Letters_, i. 374, _et alibi_. See what Clarendon says, p. 293 (ii. 151, edit. 1826). The second of these tells us, that the city offered to build for the king a palace in St. James's park by way of composition, which was refused. If this be true, it must allude to the palace already projected by him, the magnificent designs for which by Inigo Jones are well known. Had they been executed, the metropolis would have possessed a splendid monument of Palladian architecture; and the reproach sometimes thrown on England, of wanting a fit mansion for its monarchs, would have been prevented. But the exchequer of Charles the First had never been in such a state as to render it at all probable that he could undertake so costly a work. [49] _Strafford Letters_, i. 340. [50] Rymer, xix. 699. [51] _Id._ 198. [52] Roger Coke's _Detection of the Court of England_, i. 309. He was Sir Edward's grandson. [53] Rymer, xx. 190. [54] _Id._ xix. 740. See also 82. [55] Hudson's "Treatise of the Court of Star-chamber," p. 51. This valuable work, written about the end of James's reign, is published in _Collectanea Juridica_, vol. ii. There is more than one manuscript of it in the British Museum. In another treatise, written by a clerk of the council about 1590 (Hargrave MSS. ccxvi. 195), the author says: "There was a time when there grew a controversy between the star-chamber and the King's Bench for their jurisdiction in a cause of perjury concerning tithes, Sir Nicholas Bacon, that most grave and worthy counsellor, then being lord-keeper of the great seal, and Sir Robert Catlyn, knight, then lord chief justice of the bench. To the deciding thereof were called by the plaintiff and defendant a great number of the learned counsellors of the law: they were called into the inner star-chamber after dinner, where before the lords of the council they argued the cause on both sides, but could not find the court of greater antiquity by all their books than Henry VII. and Richard III. On this I fell in cogitation how to find some further knowledge thereof." He proceeds to inform us, that by search into records he traced its jurisdiction much higher. This shows, however, the doubts entertained of its jurisdiction in the queen's time. This writer, extolling the court highly, admits that "some of late have deemed it to be new, and put the same in print, to the blemish of its beautiful antiquity." He then discusses the question (for such it seems it was), whether any peer, though not of the council, might sit in the star-chamber; and decides in the negative. "Ao. 5to. of her majesty," he says, in the case of the Earl of Hertford, "there were assembled a great number of the noble barons of this realm, not being of the council, who offered there to sit; but at that time it was declared unto them by the lord-keeper that they were to give place; and so they did, and divers of them tarried the hearing of the cause at the bar." This note ought to have been inserted in Chapter I., where the antiquity of the star-chamber is mentioned, but was accidentally overlooked. [56] P. 56. [57] P. 62. Lord Bacon observes, that the council in his time did not meddle with _meum_ and _tuum_ as formerly; and that such causes ought not to be entertained. Vol. i. 720; vol. ii. 208. "The king," he says, "should be sometimes present, yet not too often." James was too often present, and took one well-known criminal proceeding, that against Sir Thomas Lake and his family, entirely into his own hands. [58] P. 82. [59] P. 108. [60] Pp. 100, 102. [61] P. 107. The following case in the queen's reign goes a great way: An information was preferred in the star-chamber against Griffin and another for erecting a tenement in Hog-lane, which he divided into several rooms, wherein were inhabiting two poor tenants, that only lived and were maintained by the relief of their neighbours, etc. The attorney-general, and also the lord mayor and aldermen, prayed some condign punishment on Griffin and the other, and that the court would be pleased to set down and decree some general order in this and other like cases of new building and division of tenements. Whereupon the court, generally considering the great growing evils and inconveniences that continually breed and happen by this new erected building and divisions made and divided contrary to her majesty's said proclamation, commit the offenders to the Fleet, and fine them £20 each; but considering that if the houses be pulled down, other habitations must be found, did not, as requested, order this to be done for the present, but that the tenants should continue for their lives without payment of rent, and the landlord is directed not to molest them, and after the death or departure of the tenants the houses to be pulled down. Harl. MSS. N. 299, fol. 7. [62] Harl. MSS. p. 142, etc. It appears that the court of star-chamber could not sentence to punishment on the deposition of an eye-witness (Rushw. Abr. ii. 114): a rule which did not prevent their receiving the most imperfect and inconclusive testimony. [63] P. 36, 224. Instead of "the slavish punishment of whipping," the printed book has "the slavish speech of whispering," which of course entirely alters the sense, or rather makes nonsense. I have followed a MS. in the Museum (Hargrave, N. 250), which agrees with the abstract of this treatise by Rushworth, ii. 348. [64] Vallenger, author of seditious libels, was sentenced in the queen's reign to stand twice in the pillory, and lose both his ears. Harl. MSS. 6265, fol. 373. So also the conspirators who accused Archbishop Sandys of adultery. _Id._ 376. And Mr. Pound, a Roman catholic gentleman, who had suffered much before for his religion, was sentenced by that court, in 1603, to lose both his ears, to be fined £1000, and imprisoned for life, unless he declared who instigated him to charge Serjeant Philips with injustice in condemning a neighbour of his to death. Winwood, ii. 36. [65] The scarcity must have been very great this season (1631), for he refused £2 18_s._ for the quarter of rye. Rushworth, ii. 110. [66] Rushworth, 340. Garrard, the correspondent of Wentworth, who sent him all London news, writes about this: "The attorney-general hath sent to all taverns to prohibit them to dress meat; somewhat was required of them, a halfpenny a quart for French wine, and a penny for sack and other richer wines, for the king: the gentlemen vintners grew sullen, and would not give it, so they are all well enough served." _Strafford Letters_, i. 507. [67] Hacket's _Life of Williams_; Rushworth Abr. ii. 315, _et post_; Brodie ii. 363. [68] Osbaldiston swore that he did not mean Laud; an undoubted perjury. [69] Mr. Brodie (_Hist. of Brit. Emp._ vol. ii. p. 309) observes, that he cannot find in Leighton's book (which I have never seen) the passage constantly brought forward by Laud's apologists, wherein he is supposed to have recommended the assassination of the bishops. He admits, indeed, as does Harris, that the book was violent; but what can be said of the punishment? [70] Rushworth; _State Trials_. [71] _Id._ Whitelock, p. 18; Harris's _Life of Charles_, p. 262. The unfortunate words in the index, "Women actors notorious whores," cost Prynne half his ears; the remainder he saved by the hangman's mercy for a second harvest. When he was brought again before the star-chamber, some of the lords turned up his hair, and expressed great indignation that his ears had not been better cropped. _State Trials_, 717. The most brutal and servile of these courtiers seems to have been the Earl of Dorset, though Clarendon speaks well of him. He was also impudently corrupt, declaring that he thought it no crime for a courtier that lives at great expense in his attendance, to receive a reward to get a business done by a great man in favour. Rush. Abr. ii. 246. It is to be observed that the star-chamber tribunal was almost as infamous for its partiality and corruption as its cruelty. See proofs of this in the same work. P. 241. [72] The intimidation was so great, that no counsel dared to sign Prynne's plea; yet the court refused to receive it without such signature. Rushworth, ii. 277; _Strafford Letters_, ii. 74. [73] _Id._ 85; Rushw. 295; _State Trials_. Clarendon, who speaks in a very unbecoming manner of this sentence, admits that it excited general disapprobation. P. 73. [74] Laud's character is justly and fairly drawn by May, neither in the coarse caricature style of Prynne, nor with the absurdly flattering pencil of Clarendon. "The Archbishop of Canterbury was a main agent in this fatal work; a man vigilant enough, of an active or rather of a restless mind; more ambitious to undertake than politic to carry on; of a disposition too fierce and cruel for his coat; which notwithstanding he was so far from concealing in a subtle way, that he increased the envy of it by insolence. He had few vulgar and private vices, as being neither taxed of covetousness, intemperance, or incontinence; and in a word a man not altogether so bad in his personal character, as unfit for the state of England." _Hist. of Parliament_, 19. [75] The following entry appears in Laud's Diary (March 6, 1636): "Sunday, William Juxon, lord bishop of London, made lord high-treasurer of England: no churchman had it since Hen. VII.'s time. I pray God bless him to carry it so that the church may have honour, and the king and the state service and contentment by it. And now, if the church will not hold themselves up under God, I can do no more." Those who were far from puritanism could not digest this strange elevation. James Howell writes to Wentworth: "The news that keeps greatest noise here at this present, is that there is a new lord-treasurer; and it is news indeed, it being now twice time out of mind since the white robe and the white staff marched together; we begin to live here in the church triumphant; and there wants but one more to keep the king's conscience, which is more proper for a churchman than his coin, to make it triumvirate." _Straff. Letters_, i. 522. Garrard, another correspondent expresses his surprise, and thinks Strafford himself, or Cottington, would have done better. P. 523. And afterwards (vol. ii. p. 2), "The clergy are so high here since the joining of the white sleeves with the white staff, that there is much talk of having as secretary a bishop, Dr. Wren, Bishop of Norwich, and as chancellor of the exchequer, Dr. Bancroft, Bishop of Oxford; but this comes only from the young fry of the clergy; little credit is given to it, but it is observed, they swarm mightily about the court." The tone of these letters shows that the writer suspected that Wentworth would not be well pleased at seeing a churchman set over his head. But in several of his own letters he positively declares his aversion to the office, and perhaps with sincerity. Ambition was less predominant in his mind than pride, and impatience of opposition. He knew, that as lord-treasurer he would be perpetually thwarted and undermined by Cottington and others of the council. They, on the other hand, must have dreaded that such a colleague might become their master. Laud himself, in his correspondence with Strafford, never throws out the least hint of a wish that he should succeed Weston, which would have interfered with his own views. It must be added that Juxon redeemed the scandal of his appointment by an unblemished probity, and gave so little offence in this invidious greatness, that the long parliament never attacked him, and he remained in his palace at Fulham without molestation till 1647. [76] _Strafford's Letters_, i. 33, etc. The letters of Wentworth in this period of his life show a good deal of ambition and resentment, but no great portion of public spirit. This collection of the Strafford letters forms a very important portion of our historical documents. Hume had looked at them very superficially, and quotes them but twice. They furnished materials to Harris and Macaulay; but the first is little read at present, and the second not at all. In a recent and deservedly popular publication, Macdiarmid's _Lives of British Statesmen_, the work of a young man of letters, who did not live to struggle through the distresses of that profession, the character of Strafford is drawn from the best authorities, and with abundant, perhaps excessive candour. Mr. Brodie has well pointed out that he has obtained more credit for the early period of his parliamentary life than he deserves, by being confounded with Mr. Wentworth, member for Oxford. Vol. ii. p. 249. Rushworth has even ascribed to Sir Thomas Wentworth the speeches of this Mr. Wentworth in the second parliament of Charles, from which it is notorious that the former had been excluded. [77] Hacket tells us, in his elegant style, that "Sir John Eliot of the west, and Sir Thomas Wentworth of the north, both in the prime of their age and wits, both conspicuous for able speakers, clashed so often in the house, and cudgelled one another with such strong contradictions, that it grew from an emulation between them to an enmity. The lord-treasurer Weston picked out the northern cock, Sir Thomas, to make him the king's creature, and set him upon the first step of his rising; which was wormwood in the taste of Eliot, who revenged himself upon the king in the Bill of Tonnage, and then fell upon the treasurer, and declaimed against him, that he was the author of all the evils under which the kingdom was oppressed." He proceeds to inform us, that Bishop Williams offered to bring Eliot over, for which Wentworth never forgave him. _Life of Williams_, p. 82. The magnanimous fortitude of Eliot forbids us to give credit to any surmise unfavourable to his glory, upon such indifferent authority; but several passages in Wentworth's letters to Laud show his malice towards one who had perished in the great cause which he had so basely forsaken. [78] Wentworth was brought over before the assassination of Buckingham. His patent in Rymer bears date 22nd July 1628, a month previous to that event. [79] Fourth Inst. c. 49. See also 13 Reports, 31. [80] Rymer, xix. 9; Rushworth, ii. 127. [81] Rushworth; Strafford's Trial, etc.; Brodie, ii. 319; _Straff. Letters_, i. 145. In a letter to Lord Doncaster, pressing for a severe sentence on Foulis, who had been guilty of some disrespect to himself as president of the North, Wentworth shows his abhorrence of liberty with all the bitterness of a renegado; and urges the "seasonable correcting an humour and liberty I find reign in these parts, of observing a superior command no farther than they like themselves, and of questioning any profit of the Crown, called upon by his majesty's ministers, which might enable it to subsist of itself, without being necessitated to accept of such conditions, as others might easily think to impose upon it." Sept. 1632. _Somers Tracts_, iv. 198. [82] Rushworth Abr. iii. 85; Clarendon, i. 390 (1826). The original editors left out some words which brought this home to Strafford. And if the case was as there seems every reason to believe, I would ask those who talk of this man's innocence, whether in any civilised country, a more outrageous piece of tyranny has been committed by a governor than to compel a nobleman of the highest station to change the disposition of his private estate, because that governor carried on an adulterous intercourse with the daughter-in-law of the person whom he treated thus imperiously? [83] _Clarendon Papers_, i. 449, 543, 594; Rushworth Abridg. iii. 43; _Clar. Hist._ i. 386 (1826); _Strafford Letters_, i. 497, _et post_. This proceeding against Lord Mountnorris excited much dissatisfaction in England; those of the council who disliked Strafford making it a pretext to inveigh against his arrogance. But the king, invariably on the severe and arbitrary side, justified the measure, which silenced the courtiers. P. 512. Be it added, that the virtuous Charles took a bribe of £6000 for bestowing Mountnorris's office on Sir Adam Loftus, not out of distress through the parsimony of parliament, but to purchase an estate in Scotland. _Id._ 511. Hume, in extenuating the conduct of Strafford as to Mountnorris's trial, says, that, "_sensible of the iniquity of the sentence_, he procured his majesty's free pardon to Mountnorris." There is not the slightest evidence to warrant the words in italics; on the contrary, he always justified the sentence, and had most manifestly procured it. The king, in return to a moving petition of Lady Mountnorris, permitted his release from confinement, "on making such a submission as my lord-deputy shall approve." [84] _Strafford Letters_, i. 111. [85] P. 155. [86] _Strafford Letters_, p. 329. In other letters they complain of what they call the Lady Mora, which seems to be a cant word for the inefficient system of the rest of the council, unless it is a personal nickname for Weston. [87] The bishops, before the Reformation, issued process from their courts in their own names. By the statute of 1 Edw. VI. c. 2, all ecclesiastical jurisdiction is declared to be immediately from the Crown; and it is directed that persons exercising it shall use the king's arms in their seal, and no other. This was repealed under Mary; but her act is itself repealed by 1 Jac. I. c. 25, § 48. This seems to revive the act of Edward. The spiritual courts, however, continued to issue process in the bishop's name, and with his seal. On some difficulty being made concerning this, it was referred by the star-chamber to the twelve judges, who gave it under their hands that the statute of Edward was repealed, and that the practice of the ecclesiastical courts in this respect was agreeable to law. Neal, 589; Kennet, 92; Rushw. Abr. iii. 340. Whitelock says (p. 22), that the bishops all denied that they held their jurisdiction from the king, for which they were liable to heavy penalties. This question is of little consequence; for it is still true that ecclesiastical jurisdiction, according to the law, emanates from the Crown; nor does anything turn on the issuing of process in the bishop's name, any more than on the holding courts-baron in the name of the lord. In Ireland, unless I am mistaken, the king's name is used in ecclesiastical proceedings. Laud, in his famous speech in the star-chamber, 1637, and again on his trial, asserts episcopal jurisdiction (except what is called in foro contentioso) to be of divine right; a doctrine not easily reconcilable with the Crown's supremacy over _all_ causes under the statute of Elizabeth; since any spiritual censure may be annulled by a lay tribunal, the commission of delegates; and how this can be compatible with a divine authority in the bishop to pronounce it, seems not easy to prove. Laud, I have no doubt, would have put an end to this badge of subordination to the Crown. The judges in Cawdrey's Case (5 Reports) held a very different language; nor would Elizabeth have borne this assumption of the prelates as tamely as Charles, in his poor-spirited bigotry, seems to have done. Stillingfleet, though he disputes at great length the doctrine of Lord Coke, in his fifth Report, as to the extent of the royal supremacy before the first of Elizabeth, fully admits that since the statute of that year, the authority for keeping courts, in whose name soever they may be held, is derived from the king. Vol. iii. 768, 778. This arrogant contempt of the lawyers manifested by Laud and his faction of priests led to the ruin of the great churchmen and of the church itself--by the hands, chiefly, of that powerful body they had insulted, as Clarendon has justly remarked. [88] P. 111. [89] P. 173. [90] P. 129. [91] P. 201. See also p. 223. [92] Vol. ii. p. 100. [93] _Id._ ii. 136. [94] P. 138. [95] P. 158. [96] P. 178. [97] P. 60. [98] Vol. i. p. 420. [99] P. 246; see also p. 370. [100] The unfavourable physiognomy of Strafford is noticed by writers of that time. _Somers Tracts_, iv. 231. It did not prevent him from being admired by the fair sex, especially at his trial, where, May says, they were all on his side. The portraits by Vandyke at Wentworth and Petworth are well known; the latter appears eminently characteristic. [101] See the cases of Workman, Peter Smart, etc., in the common histories: Rushworth, Rapin, Neal, Macauley, Brodie, and even Hume, on one side; and for what can be said on the other, Collier, and Laud's own defence on his trial. A number of persons, doubtless inclining to the puritan side, had raised a sum of money to buy up impropriations, which they vested in trustees for the purpose of supporting lecturers; a class of ministers to whom Laud was very averse. He caused the parties to be summoned before the star-chamber, where their association was dissolved, and the impropriations already purchased were confiscated to the Crown. Rushworth Abr. ii. 17; Neal, i. 556. [102] This originated in an order made at the Somerset assizes by Chief Justice Richardson, at the request of the justices of peace, for suppressing these feasts, which had led to much disorder and profaneness. Laud made the privy council reprove the judge, and direct him to revoke the order. Kennet, p. 71; Rushw. Abr. ii. 166. Heylin says, the gentlemen of the county were against Richardson's order, which is one of his habitual falsehoods. See Rushw. Abr. ii. 167. I must add, however, that the proclamation was perfectly legal, and according to the spirit of the late act (1 Car. I. c. 1) for the observance of the Lord's day. It has been rather misrepresented by those who have not attended to its limitations, as Neal and Mr. Brodie. Dr. Lingard, ix. 422, has stated the matter rightly. [103] Neal, 569; Rushworth Abr. ii. 166; Collier, 758; Heylin's _Life of Laud_, 241, 290. The last writer extenuates the persecution by Wren; but it is evident by his own account that no suspension or censure was taken off till the party conformed and read the declaration. [104] Neal, p. 546. I do not know how he makes his computation. [105] A proclamation, dated May 1, 1638, reciting that the king was informed that many persons went yearly to New England in order to be out of the reach of ecclesiastical authority, commands that no one shall pass without a licence, and a testimonial of conformity from the minister of his parish. Rymer, xx. 223. Laud, in a letter to Strafford (ii. 169), complains of men running to New England, when there was a want of them in Ireland. And why did they so, but that any trackless wilderness seemed better than his own or his friend's tyranny? In this letter he laments that he is left alone in the envious and thorny part of the work, and has no encouragement. [106] In thirteen years, ending with 1640, but £4080 was levied on recusants by process from the exchequer, according to Commons' Journals, 1 Dec. 1640. But it cannot be denied that they paid considerable sums by way of composition, though less probably than in former times. Lingard, ix. 424, etc., note G. Weston is said by Clarendon to have offended the catholics by enforcing penalties to raise the revenue. One priest only was executed for religion, before the meeting of the long parliament. Butler, iv. 97. And though, for the sake of appearance, proclamations for arresting priests and recusants sometimes came forth, they were always discharged in a short time. The number pardoned in the first sixteen years of the king is said to have amounted, in twenty-nine counties only, to 11,970. Neal, 604. Clarendon, i. 261, confirms the systematic indulgence shown to catholics, which Dr. Lingard seems, reluctantly and by silence, to admit. [107] Strafford Letters, i. 505, 524; ii. 2, 57. [108] Heylin, 286. The very day of Abbot's death, an offer of a cardinal's hat was made to Laud, as he tell us in his Diary, "by one that avowed ability to perform it." This was repeated some days afterwards (Aug. 4th and 17th, 1633). It seems very questionable whether this came from authority. The new primate made a strange answer to the first application, which might well encourage a second; certainly not what might have been expected from a steady protestant. If we did not read this in his own Diary, we should not believe it. The offer at least proves that he was supposed capable of acceding to it. [109] _Clarendon State Papers_, ii. 44. It is always important to distinguish dates. By the year 1639, the court of Rome had seen the fallacy of those hopes she had previously been led to entertain, that the king and church of England would return to her fold. This might exasperate her against him, as it certainly did against Laud; besides which, I should suspect the influence of Spain in the conclave. [110] Proofs of this abound in the first volume of the collection just quoted, as well as in other books. The catholics were not indeed unanimous in the view they took of the king's prerogative, which became of importance in the controversy as to the oath of allegiance; one party maintaining that the king had a right to put his own explanation on that oath, which was more to be regarded than the sense of parliament; while another denied that they could conscientiously admit the king's interpretation against what they knew to have been the intention of the legislature who imposed it. A Mr. Courtney, who had written on the latter side, was imprisoned in the Tower, on pretext of recusancy, but really for having promulgated so obnoxious an opinion. P. 258, _et alibi_; _Memoirs of Panzani_, p. 140. The jesuits were much against the oath, and, from whatever cause, threw all the obstacles they could in the way of a good understanding between the king and the pope. One reason was their apprehension that an article of the treaty would be the appointment of a catholic bishop in England; a matter about which the members of that church have been quarrelling ever since the reign of Elizabeth, but too trifling for our notice in this place. More than half Panzani's _Memoirs_ relate to it. [111] _Id._ p. 207. This is a statement by Father Leander; in another place (p. 140), they are reckoned at 360. There were about 180 other regulars, and five or six hundred secular priests. [112] Kennet, 73; Harris's _Life of Charles_, 220; Collier, 772; Brodie, ii. 224 note; Neal, p. 572, etc. Laud, in his defence at his trial, denies or extenuates some of the charges. There is, however, full proof of all that I have said in my text. The famous consecration of St. Catharine's Creed church in 1631 is mentioned by Rushworth, Welwood, and others. Laud said in his defence, that he borrowed the ceremonies from Andrews, who had found them in some old liturgy. [113] In Bishop Andrews's answer to Bellarmine, he says: Præsentiam credimus non minus quam vos veram; de modo præsentiæ nil temere definimus. And soon afterwards: Nobis vobiscum de objecto convenit, de modo lis omnis est. De hoc est, fide firmâ tenemus quod sit, de hoc modo est, ut sit Per, sive In, sive Cum, sive Sub, sive Trans, nullum inibi verbum est. I quote from Casaubon's _Epistles_, p. 393. This is, reduced to plain terms: We fully agree with you that Christ's body is actually present in the sacramental elements, in the same sense as you use the word; but we see no cause for determining the precise mode, whether by transubstantiation or otherwise. The doctrine of the church of England, as evidenced by its leading ecclesiastics, underwent a change in the reign of James through Andrews, Casaubon, and others, who deferred wholly to antiquity. In fact, as I have elsewhere observed, there can be but two opinions, neglecting subordinate differences, on this famous controversy. It is clear to those who have attended to the subject, that the Anglican reformers did not hold a local presence of Christ's human body in the consecrated bread itself, independent of the communicant, or, as the technical phrase was, extra usum: and it is also clear, that the divines of the latter school did so. This question is rendered intricate at first sight, partly by the strong figurative language which the early reformers employed in order to avoid shocking the prejudices of the people; and partly by the incautious and even absurd use of the word _real presence_ to mean _real absence_; which is common with modern theologians. [114] Heylin's _Life of Laud_, p. 212. He probably imbibed this, like many other of his prejudices, from Bishop Andrews, whose epitaph in the church of St. Saviour's in Southwark speaks of him as having received a superior reward in heaven on account of his celibacy; coelebs migravit ad aureolam coelestem. _Biog. Britannica._ Aureola, a word of no classical authority, means, in the style of popish divinity, which the author of this epitaph thought fit to employ, the crown of virginity. See Du Cange _in voc._ [115] See "Life of Hammond," in Wordsworth's _Eccles. Biography_, vol. v. 343. It had been usual to study divinity in compendiums, chiefly drawn up in the sixteenth century. King James was a great favourer of antiquity, and prescribed the study of the fathers in his Instructions to the Universities in 1616. [116] Andrews gave scandal in the queen's reign by preaching at court, "that contrition, without confession and absolution and deeds worthy of repentance, was not sufficient; that the ministers had the two keys of power and knowledge delivered unto them; that whose sins soever they remitted upon earth, should be remitted in heaven.--The court is full of it, for such doctrine was not usually taught there." _Sidney Letters_, ii. 185. Harrington also censures him for an attempt to bring in auricular confession. _Nugæ Antiquæ_, ii. 192. In his own writings against Perron, he throws away a great part of what have always been considered the protestant doctrines. [117] Hall, Bishop of Exeter, a very considerable person, wrote a treatise on the _Divine Institution of Episcopacy_, which, according to an analysis given by Heylin and others of its leading positions, is so much in the teeth of Hooker's _Ecclesiastical Polity_, that it might pass for an answer to it. Yet it did not quite come up to the primate's standard, who made him alter some passages which looked too like concessions. Heylin's _Life of Laud_, 374; Collier, 789. One of his offences was the asserting the pope to be Antichrist, which displeased the king as well as primate, though it had been orthodox under James. [118] Collier, 764; Neal, 582; Heylin, 288. [119] Collier, 753; Heylin, 260. [120] Clarendon, iii. 366; _State Papers_, i. 338. "Lord Scudamore, the English ambassador, set up an altar, etc., in the Laudean style. His successor, Lord Leicester, spoke to the archbishop about going to Charenton; and telling him Lord Scudamore did never go thither, Laud answered, 'He is the wiser.' Leicester requested his advice what he should do, in order to sift his disposition, being himself resolved how to behave in that matter. But the other would only say that he left it to his discretion. Leicester says, he had many reasons to think that for his going to Charenton the archbishop did him all the ill offices he could to the king, representing him as a puritan, and consequently in his method an enemy to monarchical government, though he had not been very kind before. The said archbishop, he adds, would not countenance Blondel's book against the usurped power of the pope." Blencowe's _Sydney Papers_, 261. "To think well of the reformed religion," says Northumberland, in 1640, "is enough to make the archbishop an enemy; and though he cannot for shame do it in public, yet in private he will do Leicester all the mischief he can." Collins's _Sydney Papers_, ii. 623. Such was the opinion entertained of Laud, by those who could not reasonably be called puritans, except by such as made that word a synonym for protestant. It would be easy to add other proofs. The prosecution in the star-chamber against Sherfield, recorder of Salisbury, for destroying some superstitious pictures in a church, led to a display of the aversion many of the council entertained for popery, and their jealousy of the archbishop's bias. They were with difficulty brought to condemn Sherfield, and passed a sentence at last very unlike those to which they were accustomed. Rushworth; _State Trials_. Hume misrepresents the case. [121] Heylin's _Life of Laud_, 390. [122] Heylin's _Life of Laud_, 388. The passage is very remarkable, but too long to be extracted in a work not directly ecclesiastical. It is rather ambiguous; but the _Memoirs_ of Panzani afford the key. [123] The Spanish ambassador applies to Windebank, 1633, to have a case of books restored, that had been carried from the custom-house to Archbishop Abbot.--"Now he is dead, I make this demand upon his effects and library, that they may be restored to me; as his majesty's order at that time was ineffectual, as well as its appearing that there was nothing contraband or prohibited." A list of these books follows, and is curious. They consisted of English popish tracts by wholesale, intended, of course, for circulation. _Clar. State Papers_, 66. [124] _Id._ 197, etc. [125] _Clarendon State Papers_, 249. The _Memoirs of Panzani_, after furnishing some materials to Dodd's _Church History_, were published by Mr. Berington, in 1794. They are, however, become scarce, and have not been much quoted. It is plain that they were not his own work, but written by some dependant, or person in his confidence. Their truth, as well as authenticity, appears to me quite beyond controversy; they coincide, in a remarkable manner, with all our other information; the names and local details are particularly accurate for the work of a foreigner; in short, they contain no one fact of any consequence which there is reason to distrust. Some account of them may be found in Butler's _Engl. Cath._ vol. iv. A small tract, entitled "The Pope's Nuncio," printed in 1643, and said to be founded on the information of the Venetian ambassador, is, as I conceive, derived in some direct or indirect manner from these _Memoirs_. It is republished in the _Somers Tracts_, vol. iv. Mr. Butler has published, for the first time, a long and important extract from Panzani's own reports to the pope concerning the state of the catholic religion in England. _Mem. of Catholics_, iv. 55. He reckons them at 150,000; many of them, however, continuing so outwardly to live as not to be known for such, among whom are many of the first nobility. From them the neighbouring catholics have no means of hearing mass or going to the sacraments. Others, more bold, give opportunity, more or less, to their poorer neighbours to practise their duty. Besides these, there are others, who, apprehensive of losing their property or places, live in appearance as protestants, take the oaths of supremacy and allegiance, frequent the churches, and speak occasionally against catholics; yet in their hearts are such, and sometimes keep priests in their houses, that they may not be without help, if necessary. Among them he includes some of the first nobility, secular and ecclesiastical, and many of every rank. While he was in London, almost all the nobility who died, though reputed protestants, died catholics. The bishops are protestants, except four, Durham, Salisbury, Rochester, and Oxford, who are puritans. The latter are most numerous among the people, and are more hated by moderate protestants than are the catholics. A great change is apparent in books and sermons, compared with former times; auricular confession praised, images well spoken of, and altars. The pope is owned as patriarch of the West; and wishes are expressed for re-union. The queen has a public chapel besides her private one, where service is celebrated with much pomp; also the ambassadors; and there are others in London. The laws against recusants are much relaxed; though sometimes the king, being in want of money, takes one-third of their incomes by way of composition. The catholics are yet molested by the pursuivants, who enter their houses in search of priests, or sacred vessels; and though this evil was not much felt while he was in London, they might be set at work at any time. He determined, therefore, to obtain, if possible, a general order from the king to restrain the pursuivants; and the business was put into the hands of some counsellors, but not settled at his departure. The oath of allegiance divided the ecclesiastics, the major part refusing to take it. After a good deal about the appointment of a catholic bishop in England, he mentions Father Davenport or Sancta Clara's book, entitled _Deus, Natura, Gratia_, with which the king, he says, had been pleased, and was therefore disappointed at finding it put in the Index Expurgatorius at Rome.--This book, which made much noise at the time, was an attempt to show the compatibility of the Anglican doctrines with those of the catholic church; the usual trick of popish intriguers. See an abstract of it in Stillingfleet's Works, vol. v. p. 176. [126] If we may believe Heylin, the queen prevailed on Laud to use his influence with the king that Panzani might come to London, promising to be his friend. _Life of Laud_, 286. [127] P. 246. It may seem extraordinary that he did not mention Williams; but I presume he took that political bishop's zeal to be insincere. Williams had been, while in power, a great favourer of the toleration of papists. If, indeed, a story told of him, on Endymion Porter's authority, in a late work, be true, he was at that time sufficiently inclined to have accepted a cardinal's hat, and made interest for it. Blencowe's _Sydney Papers_, p. 262. One bishop, Goodman of Gloucester, was undoubtedly a Roman catholic, and died in that communion. He refused, for a long time, to subscribe the canons of 1640, on account of one that contained a renunciation of popery; but yielded at length for fear of suspension, and charged Montagu with having instigated his refusal, though he subscribed himself. Nalson, i. 371; Rushw. Abr. iii. 168; Collier, 793; Laud's defence on his trial. [128] Henrietta Maria, in her communication to Madame de Motteville, has the following passage, which is not undeserving of notice, though she may have been deceived: "Le Roi Jacques ... composa deux livres pour la défense de la fausse religion d'Angleterre, et fit réponse à ceux que le Cardinal du Perron écrivit contre lui. En défendant le mensonge, il conçut de l'amour pour la vérité, et souhaita de se retirer de l'erreur. Ce fut en voulant accorder les deux religions, la nôtre et la sienne; mais il mourut avant que d'exécuter ce louable dessein. Le Roi Charles Stuard, son fils, quand il vint à la couronne, se trouva presque dans les mêmes sentimens. Il avoit auprès de lui l'archevêque de Cantorberi, qui, dans son coeur étant très-bon catholique, inspira au roi son maître un grand désir de rétablir la liturgie, croyant que s'il pouvoit arriver à ce point, il y auroit si peu de différence de la foi orthodoxe à la leur, qu'il seroit aisé peu à peu d'y conduire le roi. Pour travailler à ce grand ouvrage, que ne paroissoit au roi d'Angleterre que le rétablissement parfait de la liturgie, et qui est le seul dessein qui ait été dans le coeur de ce prince, l'archevêque de Cantorberi lui conseilla de commencer par l'Ecosse, comme plus éloignée du coeur du royaume; lui disant, que leur remuement seroit moins à craindre. Le roi, avant que de partir, voulant envoyer cette liturgie en Ecosse, l'apporta un soir dans la chambre de la reine, et la pria de lire ce livre, lui disant, qu'il seroit bien aise qu'elle le vît, afin qu'elle sût combien ils approchoient de créance." _Mém. de Motteville_, i. 242. A well-informed writer, however, says Charles was a protestant, and never liked the catholic religion. P. Orleans, _Révolut. d'Anglet._ iii. 35. He says the same of Laud, but refers to Vittorio Siri for an opposite story. [129] Cardinal Barberini wrote word to Panzani, that the proposal of Windebank, that the church of Rome should sacrifice communion in one kind, the celibacy of the clergy, etc., would never please; that the English ought to look back on the breach they had made, and their motives for it, and that the whole world was against them on the first-mentioned points. P. 173. This is exactly what any one might predict, who knew the long discussions on the subject with Austria and France at the time of the council of Trent. [130] "Begets more malice" is obscure--perhaps it means "irritates the puritans more." _Clar. Papers_, ii. 44. [131] Heylin, p. 338; Laud's Diary, Oct. 1637; _Strafford Letters_, i. 426. Garrard, a dependent friend whom Strafford retained, as was usual with great men, to communicate the news of the court, frequently descants on the excessive boldness of the papists. "Laud," he says (vol. ii. p. 74), "does all he can to beat down the general fear conceived of bringing on popery." So in p. 165 and many other places. It is manifest, by a letter of Laud to Strafford in 1638, that he was not satisfied with the systematic connivance at recusancy. _Id._ 171. The explanation of the archbishop's conduct with respect to the Roman catholics seems to be, that, with a view of gaining them over to his own half-way protestantism, and also ingratiating himself with the queen, he had for a time gone along with the tide, till he found there was a real danger of being carried farther than he intended. This accounts for the well-known story told by Evelyn, that the jesuits at Rome spoke of him as their bitterest enemy. He is reported to have said, that they and the puritans were the chief obstacles to a re-union of the churches. There is an obscure story of a plot carried on by the pope's legate Con and the English jesuits against Laud, and detected in 1640 by one Andrew Habernfield, which some have treated as a mere fiction. Rushworth, iii. 232. [132] Heylin, in his _Life of Laud_, p. 340, tells this story, as if Hales had recanted his opinions, and owned Laud's superiority over him in argument. This is ludicrous, considering the relative abilities of the two men. And Hales's letter to the archbishop, which is full as bold as his treatise on schism, proves that Heylin's narrative is one of his many wilful falsehoods; for, by making himself a witness to the pretended circumstances, he has precluded the excuse of error. [133] It appears by the late edition at Oxford (1826) that Lord Clarendon twice altered his intention as to the nature of his work, having originally designed to write the history of his time, which he changed to memorials of his own life, and again returned to his first plan. The consequence has been, that there are two manuscripts of the _History_ and of the _Life_, which in a great degree are transcripts one from the other, or contain the same general fact with variations. That part of the _Life_, previous to 1660, which is not inserted in the _History of the Rebellion_, is by no means extensive. The genuine text of the _History_ has only been published in 1826. A story, as is well known, obtained circulation within thirty years after its first appearance, that the manuscript had been materially altered or interpolated. This was positively denied, and supposed to be wholly disproved. It turns out, however, that, like many other anecdotes, it had a considerable basis of truth, though with various erroneous additions, and probably wilful misrepresentations. It is nevertheless surprising that the worthy editor of the original manuscript should say, "that the genuineness of the work has rashly, and for party purposes, been called in question;" when no one, I believe, has ever disputed its genuineness; and the anecdote to which I have alluded, and to which, no doubt, he alludes, has been by his own industry (and many thanks we owe him for it) perfectly confirmed in substance. For though he endeavours, not quite necessarily, to excuse or justify the original editors (who seem to have been Sprat and Aldrich, with the sanction probably of Lords Clarendon and Rochester, the historian's sons), for what they did, and even singularly asserts, that "the present collation satisfactorily proves that they have in no one instance added, suppressed, or altered any historical fact" (Advert. to edit. 1826, p.v.); yet it is certain that, besides the perpetual impertinence of mending the style, there are several hundred variations which affect the sense, introduced from one motive or another, and directly contrary to the laws of literary integrity. The long passages inserted in the appendixes to several volumes of this edition contain surely historical facts that had been suppressed. And, even with respect to subordinate alterations, made for the purpose of softening traits of the author's angry temper, or correcting his mistakes, the general effect of taking such liberties with a work is to give it an undue credit in the eyes of the public, and to induce men to believe matters upon the writer's testimony, which they would not have done so readily, if his errors had been fairly laid before them. Clarendon indeed is so strangely loose in expression as well as incorrect in statement, that it would have been impossible to remove his faults of this kind without writing again half the history; but it is certain that great trouble was very unduly taken to lighten their impression upon the world. [134] _Id. ibid._ [135] May thus answers, by a sort of prophetic anticipation, this passage of Clarendon: "Another sort of men," he says, "and especially lords and gentlemen, by whom the pressures of the government were not much felt, who enjoyed their own plentiful fortunes, with little or insensible detriment, looking no farther than their present safety and prosperity, and the yet undisturbed peace of the nation, whilst other kingdoms were embroiled in calamities, and Germany sadly wasted by a sharp war, did nothing but applaud the happiness of England, and called those ungrateful factious spirits, who complained of the breach of laws and liberties; that the kingdom abounded with wealth, plenty, and all kinds of elegancies more than ever; that it was for the honour of a people, that the monarch should live splendidly, and not be curbed at all in his prerogative, which would bring him into greater esteems with other princes, and more enable him to prevail in treaties; that what they suffered by monopolies was insensible and not grievous, if compared with other states; that the Duke of Tuscany sat heavier upon his people in that very kind; that the French king had made himself an absolute lord, and quite depressed the power of parliaments, which had been there as great as in any kingdom, and yet that France flourished, and the gentry lived well; that the Austrian princes, especially in Spain, laid heavy burdens upon their subjects. Thus did many of the English gentry, by way of comparison, in ordinary discourse, plead for their own servitude. "The courtiers would begin to dispute against parliaments, in their ordinary discourse, that they were cruel to those whom the king favoured, and too injurious to his prerogative; that the late parliament stood upon too high terms with the king, and that they hoped the king should never need any more parliaments. Some of the greatest statesmen and privy-counsellors would ordinarily laugh at the ancient language of England, when the word liberty of the subject was named. But these gentlemen, who seemed so forward in taking up their own yoke, were but a small part of the nation (though a number considerable enough to make a reformation hard) compared with those gentlemen who were sensible of their birth-rights and the true interest of the kingdom; on which side the common people in the generality, and the country freeholders stood, who would rationally argue of their own rights, and those oppressions that were laid upon them." _Hist. of Parliament_, p. 12 (edit. 1812). [136] It is curious to contrast the inconsistent and feeble apologies for the prerogative we read in Clarendon's _History_, with his speech before the Lords, on impeaching the judges for their decision in the case of ship-money. In this he speaks very strongly as to the illegality of the proceedings of the judges in Rolls and Vassal's cases, though in his _History_ he endeavours to insinuate that the king had a right to tonnage and poundage; he inveighs also against the decision in Bates's case, which he vindicates in his _History_. _Somers Tracts_, iv. 302. Indeed the whole speech is irreconcilable with the picture he afterwards drew of the prosperity of England, and of the unreasonableness of discontent. The fact is, that when he sat down in Jersey to begin his _History_, irritated, disappointed, afflicted at all that had passed in the last five years, he could not bring his mind back to the state in which it had been at the meeting of the long parliament; and believed himself to have partaken far less in the sense of abuses and desire to redress than he had really done. There may, however, be reason to suspect that he had, in some respects, gone farther in the first draught of his _History_ than appears at present; that is, I conceive, that he erased himself some passages or phrases unfavourable to the court. Let the reader judge from the following sentence in a letter to Nicholas relating to his work, dated Feb. 12, 1647: "I will offer no excuse for the entertaining of Con, who came after Panzani, and was succeeded by Rosetti; which was a business of so much folly, or worse, that I have mentioned it in my prolegomena (of those distempers and exorbitances in government which prepared the people to submit to the fury of this parliament), as an offence and scandal to religion, in the same degree that ship-money was to liberty and property." _State Papers_, ii. 336. But when we turn to the passage in the _History of the Rebellion_, p. 268, where this is mentioned, we do not find a single expression reflecting on the court, though the catholics themselves are censured for imprudence. This may serve to account for several of Clarendon's inconsistencies; for nothing renders an author so inconsistent with himself, as corrections made in a different temper of mind from that which actuated him in the first composition. [137] _Strafford Letters_, ii. 186. [138] _Id._ 267. [139] _Id._ 191. [140] _Id._ ii. 250. "It was ever clear in my judgment," says Strafford, "that the business of Scotland, so well laid, so pleasing to God and man, had it been effected, was miserably lost in the execution; yet it could never have so fatally miscarried, if there had not been a failure likewise in this direction, occasioned either by over-great desires to do all quietly without noise, by the state of the business misrepresented, by opportunities and seasons slipped, or by some such like." Laud answers in the same strain: "Indeed, my lord, the business of Scotland, I can be bold to say without vanity, was well laid, and was a great service to the crown as well as to God himself. And that it should so fatally fail in the execution is a great blow as well to the power as honour of the king," etc. He lays the blame in a great degree on Lord Traquair. P. 264. [141] _Clarendon State Papers_, ii. 19. [142] _Id._ ii. 84, and Appendix xxvi. [143] Hume says that Charles had an accumulated treasure of £200,000 at this time. I know not his authority for the particular sum: but Clarendon pretends that "the revenue had been so well improved, and so wisely managed, that there was money in the exchequer proportionable for the undertaking any noble enterprise." This is, at the best, strangely hyperbolical; but, in fact, there was an absolute want of everything. Ship-money would have been a still more crying sin than it was, if the produce had gone beyond the demands of the state; nor was this ever imputed to the court. This is one of Lord Clarendon's capital mistakes; for it leads him to speak of the treaty of Berwick as a measure that might have been avoided, and even, in one place, to ascribe it to the king's excessive lenity and aversion to shedding blood; wherein a herd of superficial writers have followed him. [144] _Clarendon State Papers_, ii. 46, 54. Lest it should seem extraordinary that I sometimes contradict Lord Clarendon on the authority of his own collection of papers, it may be necessary to apprise the reader, that none of these, anterior to the civil war, had come in his possession till he had written this part of his _History_. [145] The grand jury of Northampton presented ship-money as a grievance. But the privy-council wrote to the sheriff, that they would not admit his affected excuses; and if he neglected to execute the writ, a quick and exemplary reparation would be required of him. Rushw. Abr. iii. 93. [146] _Id._ 47. The king writes in the margin of Windebank's letter, informing him of Seymour's refusal: "You must needs make him an example, not only by distress, but, if it be possible, an information in some court, as Mr. Attorney shall advise." [147] _Strafford Letters_, ii. 308. [148] "The king hath so rattled my lord-keeper, that he is now the most pliable man in England, and all thoughts of parliaments are quite out of his pate." Cottington to Strafford, 29th Oct. 1633, vol. i. p. 141. [149] Vol. ii. p. 246. "So by this time," says a powerful writer, "all thoughts of ever having a parliament again was quite banished; so many oppressions had been set on foot, so many illegal actions done, that the only way to justify the mischiefs already done was to do that one greater; to take away the means which were ordained to redress them, the lawful government of England by parliaments." May, _History of Parliaments_, p. 11. [150] _Sidney Papers_, ii. 623; _Clarendon Papers_, ii. 81. [151] _Id. Ibid._ The attentive reader will not fail to observe, that this is the identical language of the famous advice imputed to Strafford, though used on another occasion. [152] May; Clarendon. The latter says, upon the dissolution of this parliament: "It could never be hoped that so many sober and dispassionate men would ever meet again in that place, or fewer who brought ill purposes with them." This, like so many other passages in the noble historian, is calculated rather to mislead the reader. All the principal men who headed the popular party in the long parliament were members of this; and the whole body, so far as their subsequent conduct shows, was not at all constituted of different elements from the rest: for I find, by comparison of the list of this parliament, in Nalson's Collections, with that of the long parliament, in the _Parliamentary History_, that eighty, at most, who had not sat in the former, took the covenant; and that seventy-three, in the same circumstances, sat in the king's convention at Oxford. The difference, therefore, was not so much in the men, as in the times; the bad administration and bad success of 1640, as well as the dissolution of the short parliament, having greatly aggravated the public discontents. The court had never augured well of this parliament. "The elections," as Lord Northumberland writes to Lord Leicester at Paris (_Sidney Papers_, ii. 641), "that are generally made of knights and burgesses in this kingdom, give us cause to fear that the parliament will not sit long; for such as have dependence upon the court are in divers places refused, and the most refractory persons chosen." There are some strange things said by Clarendon of the ignorance of the Commons as to the value of twelve subsidies, which Hume, who loves to depreciate the knowledge of former times, implicitly copies. But they cannot be true of that enlightened body, whatever blunders one or two individuals might commit. The rate at which every man's estate was assessed to a subsidy was perfectly notorious; and the burden of twelve subsidies to be paid in three years, was more than the charge of ship-money they had been enduring. [153] Journals; _Parl. Hist._; Nalson; Clarendon. [154] The king had long before said that "parliaments are like cats; they grow curst with age." [155] See Mr. Waller's speech on Crawley's impeachment. Nalson, ii. 358. [156] _Mem. de Motteville_, i. 238-278; P. Orleans, _Rev. de l'Angleterre_, tome iii., says the same of Vane; but his testimony may resolve itself into the former. It is to be observed, that ship-money which the king offered to relinquish, brought in £200,000 a year, and that the proposed twelve subsidies would have amounted, at most, to £840,000, to be paid in three years. Is it surprising that, when the house displayed an intention not to grant the whole of this, as appears by Clarendon's own story, the king and his advisers should have thought it better to break off altogether? I see no reason for imputing treachery to Vane, even if he did not act merely by the king's direction. Clarendon says he and Herbert persuaded the king that the house "would pass such a vote against ship-money as would blast that revenue and other branches of the receipt; which others believed they would not have the confidence to have attempted, and very few that they would have had the credit to have compassed." P. 245. The word _they_ is as inaccurate, as is commonly the case with this writer's language. But does he mean that the house would not have passed a vote against ship-money? They had already entered on the subject, and sent for records; and he admits himself, that they were resolute against granting subsidies as a consideration for the abandonment of that grievance. Besides, Hyde himself not only inveighs most severely in his _History_ against ship-money, but was himself one of the managers of the impeachment against six judges for their conduct in regard to it; and his speech before the House of Lords on that occasion is extant. Rushw. Abr. ii. 477. But this is merely one instance of his eternal inconsistency. [157] _Parl. Hist._; Rushworth; Nalson. [158] June 4, 1640. _Sidney Papers_, ii. 654. [159] A late writer has spoken of this celebrated letter, as resting on very questionable authority. Lingard, x. 43. It is, however, mentioned as a known fact by several contemporary writers, and particularly by the Earl of Manchester, in his unpublished Memorials, from which Nalson has made extracts; and who could neither be mistaken, nor have any apparent motive, in this private narrative, to deceive. Nalson, ii. 427. [160] Rymer, xx. 432; Rushworth Abr. iii. 163, etc.; Nalson, i. 389, etc. [161] Lord Clarendon seems not to have well understood the secret of this Great Council, and supposes it to have been suggested by those who wished for a parliament; whereas the _Hardwicke Papers_ show the contrary. P. 116 and 118. His notions about the facility of composing the public discontent are strangely mistaken: "Without doubt," he says, "that fire at that time, which did shortly after burn the whole kingdom, might have been covered under a bushel." But the whole of this introductory book of his _History_ abounds with proofs that he had partly forgotten, partly never known, the state of England before the opening of the long parliament. In fact, the disaffection, or at least discontent, had proceeded so far in 1640, that no human skill could have averted a great part of the consequences. But Clarendon's partiality to the king, and to some of his advisers, leads him to see in every event particular causes, or an overruling destiny, rather than the sure operation of impolicy and misgovernment. [162] These were Hertford, Bedford, Essex, Warwick, Paget, Wharton, Say, Brook, Kimbolton, Saville, Mulgrave, Bolingbroke. Nalson, 436, 437. [163] This appears from the minutes of the council (_Hardwicke Papers_), and contradicts the common opinion. Lord Conway's disaster at Newburn was by no means surprising; the English troops, who had been lately pressed into service, were perfectly mutinous; some regiments had risen and even murdered their officers on the road. Rymer, 414, 425. CHAPTER IX FROM THE MEETING OF THE LONG PARLIAMENT TO THE BEGINNING OF THE CIVIL WAR _Character of the long parliament._--We are now arrived at that momentous period in our history, which no Englishman ever regards without interest, and few without prejudice; the period from which the factions of modern times trace their divergence; which, after the lapse of almost two centuries, still calls forth the warm emotions of party-spirit, and affords a test of political principles; at that famous parliament, the theme of so much eulogy and of so much reproach; that synod of inflexible patriots with some, that conclave of traitorous rebels with others; that assembly, we may more truly say, of unequal virtue and chequered fame, which, after having acquired a higher claim to our gratitude, and effected more for our liberties, than any that had gone before or that has followed, ended by subverting the constitution it had strengthened, and by sinking in its decrepitude, and amidst public contempt, beneath a usurper it had blindly elevated to power. It seems agreeable to our plan, first to bring together those admirable provisions by which this parliament restored and consolidated the shattered fabric of our constitution, before we advert to its measures of more equivocal benefit, or its fatal errors; an arrangement not very remote from that of mere chronology, since the former were chiefly completed within the first nine months of its session, before the king's journey to Scotland in the summer of 1641. It must, I think, be admitted by every one who concurs in the representation given in this work, and especially in the last chapter, of the practical state of our government, that some new securities of a more powerful efficacy than any which the existing laws held forth were absolutely indispensable for the preservation of English liberties and privileges. These, however sacred in name, however venerable by prescription, had been so repeatedly transgressed, that to obtain their confirmation, as had been done in the petition of right, and that as the price of large subsidies, would but expose the Commons to the secret derision of the court. The king, by levying ship-money in contravention of his assent to that petition, and by other marks of insincerity, had given too just cause for suspicion that, though very conscientious in his way, he had a fund of casuistry at command that would always release him from any obligation to respect the laws. Again, to punish delinquent ministers was a necessary piece of justice; but who could expect that any such retribution would deter ambitious and intrepid men from the splendid lures of power? Whoever, therefore, came to the parliament of November 1640 with serious and steady purposes for the public weal, and most, I believe, except mere courtiers, entertained such purposes according to the measure of their capacities and energies, must have looked to some essential change in the balance of government, some important limitations of royal authority, as the primary object of his attendance. Nothing could be more obvious than that the excesses of the late unhappy times had chiefly originated in the long intermission of parliaments. No lawyer would have dared to suggest ship-money with the terrors of a House of Commons before his eyes. But the king's known resolution to govern without parliaments gave bad men more confidence of impunity. This resolution was not likely to be shaken by the unpalatable chastisement of his servants and redress of abuses, on which the present parliament was about to enter. A statute as old as the reign of Edward III. had already provided that parliaments should be held "every year, or oftener, if need be."[164] But this enactment had in no age been respected. It was certain that in the present temper of the administration, a law simply enacting that the interval between parliaments should never exceed three years, would prove wholly ineffectual. In the famous act therefore for triennial parliaments, the first fruits of the Commons' laudable zeal for reformation, such provisions were introduced as grated harshly on the ears of those who valued the royal prerogative above the liberties of the subject, but without which the act itself might have been dispensed with. Every parliament was to be _ipso facto_ dissolved at the expiration of three years from the first day of its session, unless actually sitting at the time, and, in that case, at its first adjournment or prorogation. The chancellor or keeper of the great seal to be sworn to issue writs for a new parliament within three years from the dissolution of the last, under pain of disability to hold his office, and further punishment; in case of his failure to comply with this provision, the peers were enabled and enjoined to meet at Westminster, and to issue writs to the sheriffs; the sheriffs themselves, should the peers not fulfil this duty, were to cause elections to be duly made; and, in their default, at a prescribed time the electors themselves were to proceed to choose their representatives. No future parliament was to be dissolved or adjourned without its own consent, in less than fifty days from the opening of its session. It is more reasonable to doubt whether even these provisions would have afforded an adequate security for the periodical assembling of parliament, whether the supine and courtier-like character of the peers, the want of concert and energy in the electors themselves, would not have enabled the government to set the statute at nought, than to censure them as derogatory to the reasonable prerogative and dignity of the Crown. To this important bill the king, with some apparent unwillingness, gave his assent.[165] It effected, indeed, a strange revolution in the system of his government. The nation set a due value on this admirable statute, the passing of which they welcomed with bonfires and every mark of joy. After laying this solid foundation for the maintenance of such laws as they might deem necessary, the house of commons proceeded to cut away the more flagrant and recent usurpations of the Crown. They passed a bill declaring ship-money illegal, and annulling the judgment of the exchequer chamber against Mr. Hampden.[166] They put an end to another contested prerogative, which, though incapable of vindication on any legal authority, had more support from a usage of fourscore years, the levying of customs on merchandise. In an act granting the king tonnage and poundage, it is declared and enacted that it is, and hath been, the ancient right of the subjects of this realm, that no subsidy, custom, impost, or other charge whatsoever, ought or may be laid or imposed upon any merchandise exported or imported by subjects, denizens or aliens, without common consent in parliament.[167] This is the last statute that has been found necessary to restrain the Crown from arbitrary taxation, and may be deemed the complement of those numerous provisions which the virtue of ancient times had extorted from the first and third Edwards. Yet these acts were hardly so indispensable, nor wrought so essential a change in the character of our monarchy, as that which abolished the star-chamber. Though it was evident how little the statute of Henry VII. could bear out that overweening power it had since arrogated, though the statute-book and parliamentary records of the best ages were irrefragable testimonies against its usurpations; yet the course of precedents under the Tudor and Stuart families were so invariable that nothing more was at first intended than a bill to regulate that tribunal. A suggestion, thrown out, as Clarendon informs us, by one not at all connected with the more ardent reformers, led to the substitution of a bill for taking it altogether away.[168] This abrogates all exercise of jurisdiction, properly so called, whether of a civil or criminal nature, by the privy-council, as well as the star-chamber. The power of examining and committing persons charged with offences is by no means taken away; but, with a retrospect to the language held by the judges and Crown lawyers in some cases that have been mentioned, it is enacted that every person committed by the council or any of them, or by the king's special command, may have his writ of habeas corpus; in the return to which, the officer in whose custody he is shall certify the true cause of his commitment, which the court, from whence the writ has issued, shall within three days examine, in order to see whether the cause thus certified appear to be just and legal or not, and do justice accordingly by delivering, bailing, or remanding the party. Thus fell the great court of star-chamber; and with it the whole irregular and arbitrary practice of government, that had for several centuries so thwarted the operation and obscured the light of our free constitution, that many have been prone to deny the existence of those liberties which they found so often infringed, and to mistake the violations of law for its standard. With the court of star-chamber perished that of the high-commission, a younger birth of tyranny, but perhaps even more hateful, from the peculiar irritation of the times. It had stretched its authority beyond the tenor of the act of Elizabeth, whereby it had been created, and which limits its competence to the correction of ecclesiastical offences according to the known boundaries of ecclesiastical jurisdiction, assuming a right, not only to imprison, but to fine the laity, which was generally reckoned illegal.[169] The statute repealing that of Elizabeth, under which the high-commission existed, proceeds to take away from the ecclesiastical courts all power of inflicting temporal penalties, in terms so large, and doubtless not inadvertently employed, as to render their jurisdiction nugatory. This part of the act was repealed after the restoration; and like the other measures of that time, with little care to prevent the recurrence of those abuses which had provoked its enactments.[170] A single clause in the act that abolished the star-chamber was sufficient to annihilate the arbitrary jurisdiction of several other irregular tribunals, grown out of the despotic temper of the Tudor dynasty:--the court of the president and council of the North, long obnoxious to the common lawyers, and lately the sphere of Strafford's tyrannical arrogance;[171] the court of the president and council of Wales and the Welsh marches, which had pretended, as before mentioned, to a jurisdiction over the adjacent counties of Salop, Worcester, Hereford, and Gloucester; with those of the duchy of Lancaster and county palatine of Chester. These, under various pretexts, had usurped so extensive a cognisance as to deprive one-third of England of the privileges of the common law. The jurisdiction, however, of the two latter courts in matters touching the king's private estate has not been taken away by the statute. Another act afforded remedy for some abuses in the stannary-courts of Cornwall and Devon.[172] Others retrenched the vexatious prerogative of purveyance, and took away that of compulsory knighthood.[173] And one of greater importance put an end to a fruitful source of oppression and complaint, by determining for ever the extent of royal forests, according to their boundaries in the twentieth year of James, annulling all the preambulations and inquests by which they had subsequently been enlarged.[174] I must here reckon, among the beneficial acts of this parliament, one that passed some months afterwards, after the king's return from Scotland, and perhaps the only measure of that second period on which we can bestow unmixed commendation. The delays and uncertainties of raising troops by voluntary enlistment, to which the temper of the English nation, pacific though intrepid, and impatient of the strict control of martial law, gave small encouragement, had led to the usage of pressing soldiers for service, whether in Ireland, or on foreign expeditions. This prerogative seeming dangerous and oppressive, as well as of dubious legality, it is recited in the preamble of an act empowering the king to levy troops by this compulsory method for the special exigency of the Irish rebellion, that "by the laws of this realm, none of his majesty's subjects ought to be impressed or compelled to go out of his country to serve as a soldier in the wars, except in case of necessity of the sudden coming in of strange enemies into the kingdom, or except they be otherwise bound by the tenure of their lands or possessions."[175] The king, in a speech from the throne, adverted to this bill while passing through the houses, as an invasion of his prerogative. This notice of a parliamentary proceeding the Commons resented as a breach of their privilege; and having obtained the consent of the Lords to a joint remonstrance, the king, who was in no state to maintain his objection, gave his assent to the bill. In the reigns of Elizabeth and James, we have seen frequent instances of the Crown's interference as to matters debated in parliament. But from the time of the long parliament, the law of privilege, in this respect, has stood on an unshaken basis.[176] These are the principal statutes which we owe to this parliament. They give occasion to two remarks of no slight importance. In the first place, it will appear, on comparing them with our ancient laws and history, that they made scarce any material change in our constitution such as it had been established and recognised under the house of Plantagenet: the law for triennial parliaments even receded from those unrepealed provisions of the reign of Edward III., that they should be assembled annually. The court of star-chamber, if it could be said to have a legal jurisdiction, traced it only to the Tudor period; its recent excesses were diametrically opposed to the existing laws, and the protestations of ancient parliaments. The court of ecclesiastical commission was an offset of the royal supremacy, established at the Reformation. The impositions on merchandise were both plainly illegal, and of no long usage. That of ship-money was flagrantly, and by universal confession, a strain of arbitrary power without pretext of right. Thus, in by far the greater part of the enactments of 1641, the monarchy lost nothing that it had anciently possessed; and the balance of our constitution might seem rather to have been restored to its former equipoise, than to have undergone any fresh change. But those common liberties of England which our forefathers had, with such commendable perseverance, extorted from the grasp of power, though by no means so merely theoretical and nugatory in effect as some would insinuate, were yet very precarious in the best periods, neither well defined, nor exempt from anomalous exceptions, or from occasional infringement. Some of them, such as the statute for annual sessions of parliament, had gone into disuse. Those that were most evident, could not be enforced; and the new tribunals that, whether by law or usurpation, had reared their heads over the people, had made almost all public and personal rights dependent on their arbitrary will. It was necessary, therefore, to infuse new blood into the languid frame, and so to renovate our ancient constitution that the present æra should seem almost a new birth of liberty. Such was the aim, especially, of those provisions which placed the return of parliaments at fixed intervals beyond the power of the Crown to elude. It was hoped that by their means, so long as a sense of public spirit should exist in the nation (and beyond that time it is vain to think of liberty), no prince, however able and ambitious, could be free from restraint for more than three years; an interval too short for the completion of arbitrary projects, and which few ministers would venture to employ in such a manner as might expose them to the wrath of parliament. It is to be observed, in the second place, that by these salutary restrictions, and some new retrenchments of pernicious or abused prerogative, the long parliament formed our constitution such nearly as it now exists. Laws of great importance were doubtless enacted in subsequent times, particularly at the Revolution; but none of them, perhaps, were strictly necessary for the preservation of our civil and political privileges; and it is rather from 1641 than any other epoch, that we may date their full legal establishment. That single statute which abolished the star-chamber, gave every man a security which no other enactments could have afforded, and which no government could essentially impair. Though the reigns of the two latter Stuarts, accordingly, are justly obnoxious, and were marked by several illegal measures, yet, whether we consider the number and magnitude of their transgressions of law, or the practical oppression of their government, these princes fell very short of the despotism that had been exercised, either under the Tudors, or the two first of their own family. From this survey of the good works of the long parliament, we must turn our eyes with equal indifference to the opposite picture of its errors and offences; faults which, though the mischiefs they produced were chiefly temporary, have yet served to obliterate from the recollection of too many the permanent blessings we have inherited through its exertions. In reflecting on the events which so soon clouded a scene of glory, we ought to learn the dangers that attend all revolutionary crises, however justifiable or necessary; and that, even when posterity may have cause to rejoice in the ultimate result, the existing generation are seldom compensated for their present loss of tranquillity. The very enemies of this parliament confess that they met in November 1640 with almost unmingled zeal for the public good, and with loyal attachment to the Crown. They were the chosen representatives of the commons of England, in an age more eminent for steady and scrupulous conscientiousness in private life, than any, perhaps, that had gone before or has followed; not the demagogues or adventurers of transient popularity, but men well-born and wealthy, than whom there could perhaps never be assembled five hundred more adequate to redress the grievances, or to fix the laws of a great nation. But they were misled by the excess of two passions, both just and natural in the circumstances wherein they found themselves, resentment and distrust; passions eminently contagious, and irresistible when they seize on the zeal and credulity of a popular assembly. The one betrayed them into a measure certainly severe and sanguinary, and in the eyes of posterity exposed to greater reproach than it deserved, the attainder of Lord Strafford, and some other proceedings of too much violence; the other gave a colour to all their resolutions, and aggravated their differences with the king till there remained no other arbitrator but the sword. _Impeachment of Strafford._--Those who know the conduct and character of the Earl of Strafford, his abuse of power in the north, his far more outrageous transgressions in Ireland, his dangerous influence over the king's counsels, cannot hesitate to admit, if indeed they profess any regard to the constitution of this kingdom, that to bring so great a delinquent to justice according to the known process of law was among the primary duties of the new parliament. It was that which all, with scarce an exception but among his own creatures (for most of the court were openly or in secret his enemies),[177] ardently desired; yet which the king's favour and his own commanding genius must have rendered a doubtful enterprise. He came to London, not unconscious of the danger, by his master's direct injunctions. The first days of the session were critical; and any vacillation or delay in the Commons might probably have given time for some strong exertion of power to frustrate their designs. We must therefore consider the bold suggestion of Pym, to carry up to the Lords an impeachment for high treason against Strafford, not only as a master-stroke of that policy which is fittest for revolutions, but as justifiable by the circumstances wherein they stood. Nothing short of a commitment to the Tower would have broken the spell that so many years of arbitrary dominion had been working. It was dissipated in the instant that the people saw him in the hands of the usher of the black rod; and with his power fell also that of his master; so that Charles, from the very hour of Strafford's impeachment, never once ventured to resume the high tone of command congenial to his disposition, or to speak to the Commons but as one complaining of a superior force.[178] _Discussion of its justice._--The articles of Strafford's impeachment relate principally to his conduct in Ireland. For though he had begun to act with violence in the court of York, as lord-president of the North, and was charged with having procured a commission investing him with exorbitant power, yet he had too soon left that sphere of dominion for the lieutenancy of Ireland, to give any wide scope for prosecution, but in Ireland it was sufficiently proved that he had arrogated an authority beyond what the Crown had ever lawfully enjoyed, and even beyond the example of former viceroys of that island, where the disordered state of society, the frequency of rebellions, and the distance from all control, had given rise to such a series of arbitrary precedents, as would have almost excused any ordinary stretch of power.[179] Notwithstanding this, however, when the managers came to state and substantiate their articles of accusation, though some were satisfied that there was enough to warrant the severest judgment, yet it appeared to many dispassionate men that, even supposing the evidence as to all of them to be legally convincing, they could not, except through a dangerous latitude of construction, be aggravated into treason. The law of England is silent as to conspiracies against itself. St. John and Maynard struggled in vain to prove that a scheme to overturn the fundamental laws and to govern by a standing army, though as infamous as any treason, could be brought within the words of the statute of Edward III., as a compassing of the king's death. Nor, in fact, was there any conclusive evidence against Strafford of such a design. The famous words imputed to him by Sir Henry Vane, though there can be little reason to question that some such were spoken, seem too imperfectly reported,[180] as well as uttered too much in the heat of passion, to furnish a substantive accusation; and I should rather found my conviction of Strafford's systematic hostility to our fundamental laws on his correspondence since brought to light, as well as on his general conduct in administration, than on any overt acts proved on his impeachment. The presumption of history, to whose mirror the scattered rays of moral evidence converge, may be irresistible, when the legal inference from insulated actions is not only technically, but substantially, inconclusive. Yet we are not to suppose that the charges against this minister appeared so evidently to fall short of high treason, according to the apprehension of that age, as in later times has usually been taken for granted. Accustomed to the unjust verdicts obtained in cases of treason by the court, the statute of Edward having been perpetually stretched by constructive interpretations, neither the people nor the lawyers annexed a definite sense to that crime. The judges themselves, on a solemn reference by the House of Lords for their opinion, whether some of the articles charged against Strafford amounted to treason, answered unanimously, that upon all which their lordships had voted to be proved, it was their opinion the Earl of Strafford did deserve to undergo the pains and penalties of high treason by law.[181] And, as an apology, at least, for this judicial opinion, it may be remarked that the fifteenth article of the impeachment, charging him with raising money by his own authority, and quartering troops on the people of Ireland, in order to compel their obedience to his unlawful requisitions (upon which, and one other article, not on the whole matter, the peers voted him guilty), does in fact approach very nearly, if we may not say more, to a substantive treason within the statute of Edward III., as a levying war against the king, even without reference to some Irish acts of parliament upon which the managers of the impeachment relied. It cannot be extravagant to assert that if the colonel of a regiment were to issue an order commanding the inhabitants of the district where it is quartered to contribute certain sums of money, and were to compel the payment by quartering troops on the houses of those who refused, in a general and systematic manner, he would, according to a warrantable construction of the statutes, be guilty of the treason called levying war on the king; and that, if we could imagine him to do this by an order from the privy council or the war office, the case would not be at all altered. On the other hand, a single act of which violence might be (in technical language) trespass, misdemeanour, or felony, according to circumstances; but would want the generality, which, as the statute has been construed, determines its character to be treason. It is however manifest that Strafford's actual enforcement of his order, by quartering soldiers, was not by any means proved to be so frequently done as to bring it within the line of treason; and the evidence is also open to every sort of legal objection. But in that age, the rules of evidence, so scrupulously defined since, were either very imperfectly recognised, or continually transgressed. If then Strafford could be brought within the letter of the law, and was also deserving of death for his misdeeds towards the commonwealth, it might be thought enough to justify his condemnation, although he had not offended against what seemed to be the spirit and intention of the statute. This should, at least, restrain us from passing an unqualified censure on those who voted against him, comprehending undoubtedly the far more respectable portion of the Commons, though only twenty-six peers against nineteen formed the feeble majority on the bill of attainder.[182] It may be observed that the House of Commons acted in one respect with a generosity which the Crown had never shown in any case of treason, by immediately passing a bill to relieve his children from the penalties of forfeiture and corruption of blood. It is undoubtedly a very important problem in political ethics, whether great offences against the commonwealth may not justly incur the penalty of death by a retrospective act of the legislature, which a tribunal restrained by known laws is not competent to inflict. Bills of attainder had been by no means uncommon in England, especially under Henry VIII.; but generally when the crime charged might have been equally punished by law. They are less dangerous than to stretch the boundaries of a statute by arbitrary construction. Nor do they seem to differ at all in principle from those bills of pains and penalties, which, in times of comparative moderation and tranquillity, have sometimes been thought necessary to visit some unforeseen and anomalous transgression beyond the reach of our penal code. There are many, indeed, whose system absolutely rejects all such retrospective punishment, either from the danger of giving too much scope to vindictive passion, or on some more abstract principle of justice. Those who may incline to admit that the moral competence of the sovereign power to secure itself by the punishment of a heinous offender, even without the previous warning of law, is not to be denied, except by reasoning, which would shake the foundation of his right to inflict punishment in ordinary cases, will still be sensible of the mischief which any departure from stable rules, under the influence of the most public-spirited zeal, is likely to produce. The attainder of Strafford could not be justifiable, unless it were necessary; nor necessary, if a lighter penalty would have been sufficient for the public security. This therefore becomes a preliminary question, upon which the whole mainly turns. It is one which does not seem to admit of a demonstrative answer; but with which we can perhaps deal better than those who lived at that time. Their distrust of the king, their apprehension that nothing less than the delinquent minister's death could ensure them from his return to power, rendered the leaders of parliament obstinate against any proposition of a mitigated penalty. Nor can it be denied that there are several instances in history, where the favourites of monarchs, after a transient exile or imprisonment, have returned, on some fresh wave of fortune, to mock or avenge themselves upon their adversaries. Yet the prosperous condition of the popular party, which nothing but intemperate passion was likely to impair, rendered this contingency by no means probable; and it is against probable dangers that nations should take precautions, without aiming at more complete security than the baffling uncertainties of events will permit. Such was Strafford's unpopularity, that he could never have gained any sympathy, but by the harshness of his condemnation and the magnanimity it enabled him to display. These have half redeemed his forfeit fame, and misled a generous posterity. It was agreed on all hands that any punishment which the law could award to the highest misdemeanours, duly proved on impeachment, must be justly inflicted. "I am still the same," said Lord Digby, in his famous speech against the bill of attainder, "in my opinions and affections, as unto the Earl of Strafford; I confidently believe him to be the most dangerous minister, the most insupportable of free subjects, that can be charactered. I believe him to be still that grand apostate to the commonwealth, who must not expect to be pardoned in this world till he be despatched to the other. And yet, let me tell you, Mr. Speaker, my hand must not be to that despatch."[183] These sentiments, whatever we may think of the sincerity of him who uttered them, were common to many of those who desired most ardently to see that uniform course of known law, which neither the court's lust of power nor the clamorous indignation of a popular assembly might turn aside. The king, whose conscience was so deeply wounded by his acquiescence in this minister's death, would gladly have assented to a bill inflicting the penalty of perpetual banishment; and this, accompanied, as it ought to have been, by degradation from the rank for which he had sold his integrity, would surely have exhibited to Europe an example sufficiently conspicuous of just retribution. Though nothing perhaps could have restored a tolerable degree of confidence between Charles and the parliament, it is certain that his resentment and aversion were much aggravated by the painful compulsion they had put on him, and that the schism among the constitutional party began from this, among other causes, to grow more sensible, till it terminated in civil war.[184] But, if we pay such regard to the principles of clemency and moderation, and of adherence to the fixed rules of law, as to pass some censure on this deviation from them in the attainder of Lord Strafford, we must not yield to the clamorous invectives of his admirers, or treat the prosecution as a scandalous and flagitious excess of party vengeance. Look round the nations of the globe, and say in what age or country would such a man have fallen into the hands of his enemies, without paying the forfeit of his offences against the commonwealth with his life. They who grasp at arbitrary power, they who make their fellow-citizens tremble before them, they who gratify a selfish pride by the humiliation and servitude of mankind, have always played a deep stake; and the more invidious and intolerable has been their pre-eminence, their fall has been more destructive, and their punishment more exemplary. Something beyond the retirement or the dismissal of such ministers has seemed necessary to "absolve the gods," and furnish history with an awful lesson of retribution. The spontaneous instinct of nature has called for the axe and the gibbet against such capital delinquents. If then we blame, in some measure, the sentence against Strafford, it is not for his sake, but for that of the laws on which he trampled, and of the liberty which he betrayed. He died justly before God and man, though we may deem the precedent dangerous, and the better course of a magnanimous lenity unwisely rejected; and in condemning the bill of attainder, we cannot look upon it as a crime. _Act against dissolution of parliament without its consent._--The same distrustful temper, blamable in nothing but its excess, drew the House of Commons into a measure more unconstitutional than the attainder of Strafford, the bill enacting that they should not be dissolved without their own consent. Whether or not this had been previously meditated by the leaders is uncertain; but the circumstances under which it was adopted display all the blind precipitancy of fear. A scheme for bringing up the army from the north of England to overawe parliament had been discoursed of, or rather in a great measure concerted, by some young courtiers and military men. The imperfection and indefiniteness of the evidence obtained respecting this plot increased, as often happens, the apprehensions of the Commons. Yet, difficult as it might be to fix its proper character between a loose project and a deliberate conspiracy, this at least was hardly to be denied, that the king had listened to and approved a proposal of appealing from the representatives of his people to a military force.[185] Their greatest danger was a sudden dissolution. The triennial bill afforded indeed a valuable security for the future. Yet if the present parliament had been broken with any circumstances of violence, it might justly seem very hazardous to confide in the right of spontaneous election reserved to the people by that statute, which the Crown would have three years to defeat. A rapid impulse, rather than any concerted resolution, appears to have dictated this hardy encroachment on the prerogative. The bill against the dissolution of the present parliament without its own consent was resolved in a committee on the fifth of May, brought in the next day, and sent to the Lords on the seventh. The upper house, in a conference the same day, urged a very wise and constitutional amendment, limiting its duration to the term of two years. But the Commons adhering to their original provisions, the bill was passed by both houses on the eighth.[186] Thus, in the space of three days from the first suggestion, an alteration was made in the frame of our polity, which rendered the House of Commons equally independent of their sovereign and their constituents; and, if it could be supposed capable of being maintained in more tranquil times, would, in the theory at least of speculative politics, have gradually converted the government into something like a Dutch aristocracy. The ostensible pretext was, that money could not be borrowed on the authority of resolutions of parliament, until some security was furnished to the creditors, that those whom they were to trust should have a permanent existence. This argument would have gone a great way, and was capable of an answer; since the money might have been borrowed on the authority of the whole legislature. But the chief motive, unquestionably, was a just apprehension of the king's intention to overthrow the parliament, and of personal danger to those who had stood most forward from his resentment after a dissolution. His ready acquiescence in this bill, far more dangerous than any of those at which he demurred, can only be ascribed to his own shame and the queen's consternation at the discovery of the late plot; and thus we trace again the calamities of Charles to their two great sources; his want of judgment in affairs, and of good faith towards his people. _Innovations meditated in the church._--The parliament had met with as ardent and just an indignation against ecclesiastical as temporal grievances. The tyranny, the folly, and rashness of Charles's bishops were still greater than his own. It was evidently an indispensable duty to reduce the overbearing ascendancy of that order, which had rendered the nation, in regard to spiritual dominion, a great loser by the Reformation. They had been so blindly infatuated, as even in the year 1640, amidst all the perils of the times, to fill up the measure of public wrath by enacting a series of canons in convocation. These enjoined, or at least recommended, some of the modern innovations, which, though many excellent men had been persecuted for want of compliance with them, had not got the sanction of authority. They imposed an oath on the clergy, commonly called the _et cætera_ oath, binding them to attempt no alteration in the government of the church by bishops, deans, archdeacons, etc. This oath was by the same authority enjoined to such of the laity as held ecclesiastical offices.[187] The king, however, on the petition of the council of peers at York, directed it not to be taken. The House of Commons rescinded these canons with some degree of excess on the other side; not only denying the right of convocation to bind the clergy, which had certainly been exercised in all periods, but actually impeaching the bishops for a high misdemeanour on that account.[188] The Lords, in the month of March, appointed a committee of ten earls, ten bishops, and ten barons, to report upon the innovations lately brought into the church. Of this committee Williams was chairman. But the spirit which now possessed the Commons was not to be exorcised by the sacrifice of Laud and Wren, or even by such inconsiderable alterations as the moderate bishops were ready to suggest.[189] There had always existed a party, though by no means co-extensive with that bearing the general name of puritan, who retained an insuperable aversion to the whole scheme of episcopal discipline, as inconsistent with the ecclesiastical parity they believed to be enjoined by the apostles. It is not easy to determine what proportion these bore to the community. They were certainly at the opening of the parliament by far the less numerous, though an active and increasing party. Few of the House of Commons, according to Clarendon and the best contemporary writers, looked to a destruction of the existing hierarchy.[190] The more plausible scheme was one which had the sanction of Usher's learned judgment, and which Williams was said to favour, for what was called a moderate episcopacy; wherein the bishop, reduced to a sort of president of his college of presbyters, and differing from them only in rank, not in species (_gradu, non ordine_), should act, whether in ordination or jurisdiction, by their concurrence.[191] This intermediate form of church-government would probably have contented the popular leaders of the Commons, except two or three, and have proved acceptable to the nation. But it was hardly less offensive to the Scottish presbyterians, intolerant of the smallest deviation from their own model, than to the high-church episcopalians; and the necessity of humouring that proud and prejudiced race of people, who began already to show that an alteration in the church of England would be their stipulated condition for any assistance they might afford to the popular party, led the majority of the House of Commons to give more countenance than they sincerely intended to a bill, preferred by what was then called the root and branch party, for the entire abolition of episcopacy. This party, composed chiefly of presbyterians, but with no small admixture of other sectaries, predominated in the city of London. At the instigation of the Scots commissioners, a petition against episcopal government with 15,000 signatures was presented early in the session (Dec. 11, 1640), and received so favourably as to startle those who bore a good affection to the church.[192] This gave rise to the first difference that was expressed in parliament: Digby speaking warmly against the reference of this petition to a committee, and Falkland, though strenuous for reducing the prelates' authority, showing much reluctance to abolish their order.[193] A bill was however brought in by Sir Edward Dering, an honest but not very enlightened or consistent man, for the utter extirpation of episcopacy, and its second reading carried on a division by 139 to 108.[194] This, no doubt, seems to show the anti-episcopal party to have been stronger than Clarendon admits. Yet I suspect that the greater part of those who voted for it did not intend more than to intimidate the bishops. Petitions very numerously signed, for the maintenance of episcopal government, were presented from several counties;[195] nor is it, I think, possible to doubt that the nation sought only the abridgment of that coercive jurisdiction and temporal power, by which the bishops had forfeited the reverence due to their function, as well as that absolute authority over presbyters, which could not be reconciled to the customs of the primitive church.[196] This was the object both of the act abolishing the high commission, which, by the largeness of its expressions, seemed to take away all coercive jurisdiction from the ecclesiastical courts, and of that for depriving the bishops of their suffrages among the peers; which, after being once rejected by a large majority of the Lords in June 1641, passed into a law in the month of February following, and was the latest concession that the king made before his final appeal to arms.[197] This was hardly perhaps a greater alteration of the established constitution than had resulted from the suppression of the monasteries under Henry; when, by the fall of the mitred abbots, the secular peers acquired a preponderance in number over the spiritual which they had not previously enjoyed. It was supported by several persons, especially Lord Falkland, by no means inclined to subvert the episcopal discipline; whether from a hope to compromise better with the opposite party by this concession, or from a sincere belief that the bishops might be kept better to the duties of their function by excluding them from civil power. Considered generally, it may be reckoned a doubtful question in the theory of our government, whether the mixture of this ecclesiastical aristocracy with the House of Lords is advantageous or otherwise to the public interests, or to those of religion. Their great revenues, and the precedence allotted them, seem naturally to place them on this level; and the general property of the clergy, less protected than that of other classes against the cupidity of an administration or a faction, may perhaps require this peculiar security. In fact, the disposition of the English to honour the ministers of the church, as well as to respect the ancient institutions of their country, has usually been so powerful, that the question would hardly have been esteemed dubious, if the bishops themselves (I speak of course with such limitations as the nature of the case requires) had been at all times sufficiently studious to maintain a character of political independence, or even to conceal a spirit of servility, which the pernicious usage of continual translations from one see to another, borrowed, like many other parts of our ecclesiastical law, from the most corrupt period of the church of Rome, has had so manifest a tendency to engender. The spirit of ecclesiastical, rather than civil, democracy, was the first sign of the approaching storm that alarmed the Hertfords and Southamptons, the Hydes and Falklands. Attached to the venerable church of the English reformation, they were loth to see the rashness of some prelates avenged by her subversion, or a few recent innovations repressed by incomparably more essential changes. Full of regard for established law, and disliking the puritan bitterness, aggravated as it was by long persecution, they revolted from the indecent devastation committed in churches by the populace, and from the insults which now fell on the conforming ministers. The Lords early distinguished their temper as to those points by an order on the 16th of January for the performance of divine service according to law, in consequence of the tumults that had been caused by the heated puritans under pretence of abolishing innovations. Little regard was shown to this order;[198] but it does not appear that the Commons went farther on the opposite side than to direct some ceremonial novelties to be discontinued, and to empower one of their members, Sir Robert Harley, to take away all pictures, crosses, and superstitious figures within churches or without.[199] But this order, like many of their other acts, was a manifest encroachment on the executive power of the Crown.[200] _Schism in the constitutional party._--It seems to have been about the time of the summer recess, during the king's absence in Scotland, that the apprehension of changes in church and state far beyond what had been dreamed of at the opening of parliament, led to a final schism in the constitutional party.[201] Charles, by abandoning his former advisers, and yielding, with just as much reluctance as displayed the value of the concession, to a series of laws that abridged his prerogative, had recovered a good deal of the affection and confidence of some, and gained from others that sympathy which is seldom withheld from undeserving princes in their humiliation. Though the ill-timed death of the Earl of Bedford in May had partly disappointed an intended arrangement for bringing the popular leaders into office, yet the appointments of Essex, Holland, Say, and St. John from that party were apparently pledges of the king's willingness to select his advisers from their ranks; whatever cause there might be to suspect that their real influence over him would be too inconsiderable.[202] Those who were still excluded, and who distrusted the king's intentions as well towards themselves as the public cause, of whom Pym and Hampden, with the assistance of St. John, though actually solicitor-general, were the chief, found no better means of keeping alive the animosity that was beginning to subside, than by framing the Remonstrance on the state of the kingdom, presented to the king in November 1641. This being a recapitulation of all the grievances and misgovernment that had existed since his accession, which his acquiescence in so many measures of redress ought, according to the common courtesy due to sovereigns, to have cancelled, was hardly capable of answering any other purpose than that of re-animating discontents almost appeased, and guarding the people against the confidence they were beginning to place in the king's sincerity. The promoters of it might also hope from Charles's proud and hasty temper that he would reply in such a tone as would more exasperate the Commons. But he had begun to use the advice of judicious men, Falkland, Hyde, and Colepepper, and reined in his natural violence so as to give his enemies no advantage over him. The jealousy, which nations ought never to lay aside, was especially required towards Charles, whose love of arbitrary dominion was much better proved than his sincerity in relinquishing it. But if he were intended to reign at all, and to reign with any portion either of the prerogatives of an English king, or the respect claimed by every sovereign, the Remonstrance of the Commons could but prolong an irritation incompatible with public tranquillity. It admits indeed of no question, that the schemes of Pym, Hampden, and St. John, already tended to restrain the king's personal exercise of any effective power, from a sincere persuasion that no confidence could ever be placed in him, though not to abolish the monarchy, or probably to abridge in the same degree the rights of his successor. Their Remonstrance was put forward to stem the returning tide of loyalty, which not only threatened to obstruct the further progress of their endeavours, but, as they would allege, might, by gaining strength, wash away some at least of the bulwarks that had been so recently constructed for the preservation of liberty. It was carried in a full house by the small majority of 159 to 148.[203] So much was it deemed a trial of strength, that Cromwell declared after the division that, had the question been lost, he would have sold his estate, and retired to America. _Suspicions of the king's sincerity._--It may be thought rather surprising that, with a House of Commons so nearly balanced as they appeared on this vote, the king should have new demands that annihilated his authority made upon him, and have found a greater majority than had voted the Remonstrance ready to oppose him by arms; especially as that paper contained little but what was true, and might rather be censured as an ill-timed provocation than an encroachment on the constitutional prerogative. But there were circumstances, both of infelicity and misconduct, which aggravated that distrust whereon every measure hostile to him was grounded. His imprudent connivance at popery, and the far more reprehensible encouragement given to it by his court, had sunk deep in the hearts of his people. His ill-wishers knew how to irritate the characteristic sensibility of the English on this topic. The queen, unpopular on the score of her imputed arbitrary counsels, was odious as a maintainer of idolatry.[204] The lenity shown to convicted popish priests, who, though liable to capital punishment, had been suffered to escape with sometimes a very short imprisonment, was naturally (according to the maxims of those times) treated as a grievance by the Commons, who petitioned for the execution of one Goodman and others in similar circumstances, perhaps in the hope that the king would attempt to shelter them. But he dexterously left it to the house whether they should die or not; and none of them actually suffered.[205] Rumours of pretended conspiracies by the catholics were perpetually in circulation, and rather unworthily encouraged by the chiefs of the Commons. More substantial motives for alarm appeared to arise from the obscure transaction in Scotland, commonly called the Incident, which looked so like a concerted design against the two great leaders of the constitutional party, Hamilton and Argyle, that it was not unnatural to anticipate something similar in England.[206] In the midst of these apprehensions, as if to justify every suspicion and every severity, burst out the Irish rebellion with its attendant massacre. Though nothing could be more unlikely in itself, or less supported by proof, than the king's connivance at this calamity, from which every man of common understanding could only expect, what actually resulted from it, a terrible aggravation of his difficulties, yet, with that distrustful temper of the English, and their jealous dread of popery, he was never able to conquer their suspicions that he had either instigated the rebellion, or was very little solicitous to suppress it; suspicions indeed, to which, however ungrounded at this particular period, some circumstances that took place afterwards gave an apparent confirmation.[207] It was, perhaps, hardly practicable for the king, had he given less real excuse for it than he did, to lull that disquietude which so many causes operated to excite. The most circumspect discretion of a prince in such a difficult posture cannot restrain the rashness of eager adherents, or silence the murmurs of a discontented court. Those nearest Charles's person, and who always possessed too much of his confidence, were notoriously and naturally averse to the recent changes. Their threatening but idle speeches, and impotent denunciations of resentment, conveyed with malignant exaggeration among the populace, provoked those tumultuous assemblages, which afforded the king no bad pretext for withdrawing himself from a capital where his personal dignity was so little respected.[208] It is impossible, however, to deny that he gave by his own conduct no trifling reasons for suspicion, and last of all by the appointment of Lunsford to the government of the Tower; a choice for which, as it would never have been made from good motives, it was natural to seek the worst.[209] But the single false step which rendered his affairs irretrievable by anything short of civil war, and placed all reconciliation at an insuperable distance, was his attempt to seize the five members within the walls of the house; an evident violation, not of common privilege, but of all security for the independent existence of parliament in the mode of its execution, and leading to a very natural though perhaps mistaken surmise, that the charge itself of high treason made against these distinguished leaders, without communicating any of its grounds, had no other foundation than their parliamentary conduct. And we are in fact warranted by the authority of the queen herself to assert that their aim in this most secret enterprise was to strike terror into the parliament, and regain the power that had been wrested from their grasp.[210] It is unnecessary to dwell on a measure so well known, and which scarce any of the king's advocates have defended. The only material subject it affords for reflection is, how far the manifest hostility of Charles to the popular chiefs might justify them in rendering it harmless by wresting the sword out of his hands. No man doubtless has a right, for the sake only of his own security, to subvert his country's laws, or to plunge her into civil war. But Hampden, Hollis, and Pym might not absurdly consider the defence of English freedom bound up in their own, assailed as they were for its sake and by its enemies. It is observed by Clarendon that "Mr. Hampden was much altered after this accusation; his nature and courage seeming much fiercer than before." And it is certain that both he and Mr. Pym were not only most forward in all the proceedings which brought on the war, but among the most implacable opponents of all overtures towards reconciliation; so that although both dying in 1643, we cannot pronounce with absolute certainty as to their views, there can be little room to doubt that they would have adhered to the side of Cromwell and St. John, in the great separation of the parliamentary party. The noble historian confesses that not Hampden alone, but the generality of those who were beginning to judge more favourably of the king, had their inclinations alienated by this fatal act of violence.[211] It is worthy of remark that each of the two most striking encroachments on the king's prerogative sprung directly from the suspicions roused of an intention to destroy their privileges: the bill perpetuating the parliament having been hastily passed on the discovery of Percy's and Jermyn's conspiracy, and the present attempt on the five members inducing the Commons to insist peremptorily on vesting the command of the militia in persons of their own nomination; a security, indeed, at which they had been less openly aiming from the time of that conspiracy, and particularly of late.[212] Every one knows that this was the grand question upon which the quarrel finally rested; but it may be satisfactory to show more precisely than our historians have generally done, what was meant by the power of the militia, and what was the exact ground of dispute in this respect between Charles I. and his parliament. _Historical sketch of the military force in England._--The military force which our ancient constitution had placed in the hands of its chief magistrate and those deriving authority from him, may be classed under two descriptions; one principally designed to maintain the king's and the nation's rights abroad, the other to protect them at home from attack or disturbance. The first comprehends the tenures by knight's service, which, according to the constant principles of a feudal monarchy, bound the owners of lands thus held from the Crown, to attend the king in war, within or without the realm, mounted and armed, during the regular term of service. Their own vassals were obliged by the same law to accompany them. But the feudal service was limited to forty days, beyond which time they could be retained only by their own consent, and at the king's expense. The military tenants were frequently called upon in expeditions against Scotland, and last of all in that of 1640; but the short duration of their legal service rendered it of course nearly useless in continental warfare. Even when they formed the battle, or line of heavy armed cavalry, it was necessary to complete the army by recruits of foot-soldiers, whom feudal tenure did not regularly supply, and whose importance was soon made sensible by their skill in our national weapon, the bow. What was the extent of the king's lawful prerogative for two centuries or more after the conquest as to compelling any of his subjects to serve him in foreign war, independently of the obligations of tenure, is a question scarcely to be answered; since, knowing so imperfectly the boundaries of constitutional law in that period, we have little to guide us but precedents; and precedents, in such times, are apt to be much more records of power than of right. We find certainly several instances under Edward I. and Edward II., sometimes of proclamations to the sheriffs, directing them to notify to all persons of sufficient estate that they must hold themselves ready to attend the king whenever he should call on them, sometimes of commissions to particular persons in different counties, who are enjoined to choose and array a competent number of horse and foot for the king's service.[213] But these levies being of course vexatious to the people, and contrary at least to the spirit of those immunities which, under the shadow of the great charter, they were entitled to enjoy, Edward III., on the petition of his first parliament, who judged that such compulsory service either was, or ought to be rendered illegal, passed a remarkable act, with the simple brevity of those times: "That no man from henceforth shall be charged to arm himself, otherwise than he was wont in the time of his progenitors the kings of England; and that no man be compelled to go out of his shire, but where necessity requireth, and sudden coming of strange enemies into the realm; and then it shall be done as hath been used in times past for the defence of the realm."[214] This statute, by no means of inconsiderable importance in our constitutional history, put a stop for some ages to these arbitrary conscriptions. But Edward had recourse to another means of levying men without his own cost, by calling on the counties and principal towns to furnish a certain number of troops. Against this the parliament provided a remedy by an act in the 25th year of his reign: "That no man shall be constrained to find men at arms, hoblers, nor archers, other than those who hold by such service, if it be not by common consent and grant in parliament." Both these statutes were recited and confirmed in the fourth year of Henry IV.[215] The successful resistance thus made by parliament appears to have produced the discontinuance of compulsory levies for foreign warfare. Edward III. and his successors, in their long contention with France, resorted to the mode of recruiting by contracts with men of high rank or military estimation, whose influence was greater probably than that of the Crown towards procuring voluntary enlistments. Their pay, as stipulated in such of those contracts as are extant, was extremely high; but it secured the service of a brave and vigorous yeomanry. Under the house of Tudor, in conformity to their more despotic scheme of government, the salutary enactments of former times came to be disregarded; Henry VIII. and Elizabeth sometimes compelling the counties to furnish soldiers: and the prerogative of pressing men for military service, even out of the kingdom, having not only become as much established as undisputed usage could make it, but acquiring no slight degree of sanction by an act passed under Philip and Mary, which, without repealing or adverting to the statutes of Edward III. and Henry IV., recognises, as it seems, the right of the Crown to levy men for service in war, and imposes penalties on persons absenting themselves from musters commanded by the king's authority to be held for that purpose.[216] Clarendon, whose political heresies sprang in a great measure from his possessing but a very imperfect knowledge of our ancient constitution, speaks of the act that declared the pressing of soldiers illegal, though exactly following, even in its language, that of Edward III., as contrary to the usage and custom of all times. It is scarcely perhaps necessary to observe that there had never been any regular army kept up in England. Henry VII. established the yeomen of the guard in 1485, solely for the defence of his person, and rather perhaps, even at that time, to be considered as the king's domestic servants, than as soldiers. Their number was at first fifty, and seems never to have exceeded two hundred. A kind of regular troops, however, chiefly accustomed to the use of artillery, was maintained in the very few fortified places where it was thought necessary or practicable to keep up the show of defence; the Tower of London, Portsmouth, the castle of Dover, the fort of Tilbury, and, before the union of the crowns, Berwick and some other places on the Scottish border. I have met with very little as to the nature of these garrisons. But their whole number must have been insignificant, and probably at no time equal to resist any serious attack. We must take care not to confound this strictly military force, serving, whether by virtue of tenure or engagement, wheresoever it should be called, with that of a more domestic and defensive character to which alone the name of militia was usually applied. By the Anglo-Saxon laws, or rather by one of the primary and indispensable conditions of political society, every freeholder, if not every freeman, was bound to defend his country against hostile invasion. It appears that the alderman or earl, while those titles continued to imply the government of a county, was the proper commander of this militia. Henry II., in order to render it more effective in cases of emergency, and perhaps with a view to extend its service, enacted, by consent of parliament, that every freeman, according to the value of his estate or movables, should hold himself constantly furnished with suitable arms and equipments.[217] By the statute of Winchester, in the 13th year of Edward I., these provisions were enforced and extended. Every man, between the ages of fifteen and sixty, was to be assessed, and sworn to keep armour according to the value of his lands and goods; for fifteen pounds and upwards in rent, or forty marks in goods, a hauberk, an iron breastplate, a sword, a knife, and a horse; for smaller property, less expensive arms. A view of this armour was to be taken twice in the year, by constables chosen in every hundred.[218] These regulations appear by the context of the whole statute to have more immediate regard to the preservation of internal peace, by suppressing tumults and arresting robbers, than to the actual defence of the realm against hostile invasion; a danger not at that time very imminent. The sheriff, as chief conservator of public peace and minister of the law, had always possessed the right of summoning the _posse comitatûs_; that is, of calling on all the king's liege subjects within his jurisdiction for assistance, in case of any rebellion or tumultuous rising, or when bands of robbers infested the public ways, or when, as occurred very frequently, the execution of legal process was forcibly obstructed. It seems to have been in the policy of that wise prince, to whom we are indebted for so many signal improvements in our law, to give a more effective and permanent energy to this power of the sheriff. The provisions, however, of the statute of Winton, so far as they obliged every proprietor to possess suitable arms, were of course applicable to national defence. In seasons of public danger, threatening invasion from the side of Scotland or France, it became customary to issue commissions of array, empowering those to whom they were addressed to muster and train all men capable of bearing arms in the counties to which their commission extended, and hold them in readiness to defend the kingdom. The earliest of these commissions that I find in Rymer is of 1324, and the latest of 1557. The obligation of keeping sufficient arms according to each man's estate was preserved by a statute of Philip and Mary, which made some changes in the rate and proportion as well as the kind of arms.[219] But these ancient provisions were abrogated by James in his first parliament.[220] The nation, become for ever secure from invasion on the quarter where the militia service had been most required, and freed from the other dangers which had menaced the throne of Elizabeth, gladly saw itself released from an expensive obligation. The government again may be presumed to have thought that weapons of offence were safer in its hands than in those of its subjects. Magazines of arms were formed in different places, and generally in each county:[221] but, if we may reason from the absence of documents, there was little regard to military array and preparation; save that the citizens of London mustered their trained bands on holidays, an institution that is said to have sprung out of a voluntary association, called the artillery company, formed in the reign of Henry VIII. for the encouragement of archery, and acquiring a more respectable and martial character at the time of the Spanish armada.[222] The power of calling into arms, and mustering the population of each county, given in earlier times to the sheriff or justices of the peace or to special commissioners of array, began to be entrusted, in the reign of Mary, to a new officer, entitled the lord lieutenant. This was usually a peer, or at least a gentleman of large estate within the county, whose office gave him the command of the militia, and rendered him the chief vicegerent of his sovereign, responsible for the maintenance of public order. This institution may be considered as a revival of the ancient local earldom; and it certainly took away from the sheriff a great part of the dignity and importance which he had acquired since the discontinuance of that office. Yet the lord lieutenant has so peculiarly military an authority, that it does not in any degree control the civil power of the sheriff as the executive minister of the law. In certain cases, such as a tumultuous obstruction of legal authority, each might be said to possess an equal power; the sheriff being still undoubtedly competent to call out the _posse comitatûs_ in order to enforce obedience. Practically, however, in all serious circumstances, the lord lieutenant has always been reckoned the efficient and responsible guardian of public tranquillity. From an attentive consideration of this sketch of our military law, it will strike the reader that the principal question to be determined was, whether, in time of peace, without pretext of danger of invasion, there were any legal authority that could direct the mustering and training to arms of the able-bodied men in each county, usually denominated the militia. If the power existed at all, it manifestly resided in the king. The notion that either or both houses of parliament, who possess no portion of executive authority, could take on themselves one of its most peculiar and important functions, was so preposterous that we can scarcely give credit to the sincerity of any reasonable person who advanced it. In the imminent peril of hostile invasion, in the case of intestine rebellion, there seems to be no room for doubt that the king who could call on his subjects to bear arms for their country and laws, could oblige them to that necessary discipline and previous training, without which their service would be unavailing. It might also be urged that he was the proper judge of the danger. But that, in a season of undeniable tranquillity, he could withdraw his subjects from their necessary labours against their consent, even for the important end of keeping up the use of military discipline, is what, with our present sense of the limitations of royal power it might be difficult to affirm. The precedents under Henry VIII. and Elizabeth were numerous; but not to mention that many, perhaps most of these, might come under the class of preparations against invasion, where the royal authority was not to be doubted, they could be no stronger than those other precedents for pressing and mustering soldiers, which had been declared illegal. There were at least so many points uncertain, and some wherein the prerogative was plainly deficient, such as the right of marching the militia out of their own counties, taken away, if it had before existed, by the act just passed against pressing soldiers, that the concurrence of the whole legislature seemed requisite to place so essential a matter as the public defence on a secure and permanent footing.[223] _Encroachments of the parliament._--The aim of the houses, however, in the bill for regulating the militia, presented to Charles in February 1642, and his refusal to pass which led by rapid steps to the civil war, was not so much to remove those uncertainties by a general provision (for in effect they left them much as before), as to place the command of the sword in the hands of those they could control;--nominating in the bill the lords lieutenant of every county, who were to obey the orders of the two houses, and to be irremovable by the king for two years. No one can pretend that this was not an encroachment on his prerogative.[224] It can only find a justification in the precarious condition, as the Commons asserted it to be, of those liberties they had so recently obtained, in their just persuasion of the king's insincerity, and in the demonstrations he had already made of an intention to win back his authority at the sword's point.[225] But it is equitable, on the other hand, to observe that the Commons had by no means greater reason to distrust the faith of Charles, than he had to anticipate fresh assaults from them on the power he had inherited, on the form of religion which alone he thought lawful, on the counsellors who had served him most faithfully, and on the nearest of his domestic ties. If the right of self-defence could be urged by parliament for this demand of the militia, must we not admit that a similar plea was equally valid for the king's refusal? However arbitrary and violent the previous government of Charles may have been, however disputable his sincerity at present, it is vain to deny, that he had made the most valuable concessions, and such as had cost him very dear. He had torn away from his diadem what all monarchs would deem its choicest jewel, that high attribute of uncontrollable power, by which their flatterers have in all ages told them they resemble and represent the Divinity. He had seen those whose counsels he had best approved, rewarded with exile or imprisonment, and had incurred the deep reproach of his own heart by the sacrifice of Strafford. He had just now given a reluctant assent to the extinction of one estate of parliament, by the bill excluding bishops from the house of peers. Even in this business of the militia, he would have consented to nominate the persons recommended to him as lieutenants, by commissions revocable at his pleasure; or would have passed the bill rendering them irremovable for one year, provided they might receive their orders from himself and the two houses jointly.[226] It was not unreasonable for the king to pause at the critical moment which was to make all future denial nugatory, and enquire whether the prevailing majority designed to leave him what they had not taken away. But he was not long kept in uncertainty upon this score. The nineteen propositions tendered to him at York in the beginning of June, and founded upon addresses and declarations of a considerably earlier date,[227] went to abrogate in spirit the whole existing constitution, and were in truth so far beyond what the king could be expected to grant, that terms, more intolerable were scarcely proposed to him in his greatest difficulties, not at Uxbridge, nor at Newcastle, nor even at Newport. These famous propositions import that the privy council and officers of state should be approved by parliament, and take such an oath as the two houses should prescribe; that during the intervals of parliament, no vacancy in the council should be supplied without the assent of the major part, subject to the future sanction of the two houses; that the education and marriages of the king's children should be under parliamentary control; the votes of popish peers to be taken away; the church government and liturgy be reformed as both houses should advise; the militia and all fortified places put in such hands as parliament should approve; finally, that the king should pass a bill for restraining all peers to be made in future from sitting in parliament, unless they be admitted with the consent of both houses. A few more laudable provisions, such as that the judges should hold their offices during good behaviour, which the king had long since promised,[228] were mixed up with these strange demands. Even had the king complied with such unconstitutional requisitions, there was one behind, which, though they had not advanced it on this occasion, was not likely to be forgotten. It had been asserted by the House of Commons in their last remonstrance, that, on a right construction of the old coronation oath, the king was bound to assent to all bills which the two houses of parliament should offer.[229] It has been said by some that this was actually the constitution of Scotland, where the Crown possessed a counterbalancing influence; but such a doctrine was in this country as repugnant to the whole history of our laws, as it was incompatible with the subsistence of the monarchy in anything more than a nominal pre-eminence. _Discussion of the respective claims of the two parties to support._--In weighing the merits of this great contest, in judging whether a thoroughly upright and enlightened man would rather have listed under the royal or parliamentary standard, there are two political postulates, the concession of which we may require: one, that civil war is such a calamity as nothing but the most indispensable necessity can authorise any party to bring on; the other, that the mixed government of England by King, Lords, and Commons, was to be maintained in preference to any other form of polity. The first of these can hardly be disputed; and though the denial of the second would certainly involve no absurdity, yet it may justly be assumed where both parties avowed their adherence to it as a common principle. Such as prefer a despotic or a republican form of government will generally, without much further enquiry, have made their election between Charles the First and the parliament. We do not argue from the creed of the English constitution to those who have abandoned its communion. _Faults of both._--There was so much in the conduct and circumstances of both parties in the year 1642, to excite disapprobation and distrust, that a wise and good man could hardly unite cordially with either of them. On the one hand, he would entertain little doubt of the king's desire to overthrow by force or stratagem whatever had been effected in parliament, and to establish a plenary despotism; his arbitrary temper, his known principles of government, the natural sense of wounded pride and honour, the instigations of a haughty woman, the solicitations of favourites, the promises of ambitious men, were all at work to render his new position as a constitutional sovereign, even if unaccompanied by fresh indignities and encroachments, too grievous and mortifying to be endured. He had already tampered in a conspiracy to overawe, if not to disperse, the parliament; he had probably obtained large promises, though very little to be trusted, from several of the presbyterian leaders in Scotland during his residence there in the summer of 1641; he had attempted to recover his ascendancy by a sudden blow in the affair of the five members; he had sent the queen out of England, furnished with the Crown-jewels, for no other probable end than to raise men and procure arms in foreign countries;[230] he was now about to take the field with an army, composed in part of young gentlemen disdainful of a puritan faction that censured their licence, and of those soldiers of fortune, reckless of public principle, and averse to civil control, whom the war in Germany had trained, and partly of the catholics, a wealthy and active body devoted to the Crown, from which alone they had experienced justice or humanity, and from whose favour and gratitude they now expected the most splendid returns. Upon neither of these parties could a lover of his country and her liberties look without alarm; and though he might derive more hope from those better spirits who had withstood the prerogative in its exorbitance, as they now sustained it in its decline, yet it could not be easy to foretell that they would preserve sufficient influence to keep steady the balance of power, in the contingency of any decisive success of the royal arms. But, on the other hand, the House of Commons presented still less favourable prospects. We should not indeed judge over severely some acts of a virtuous indignation in the first moments of victory,[231] or those heats of debate, without some excesses of which a popular assembly is in danger of falling into the opposite extreme of phlegmatic security. But, after every allowance has been made, he must bring very heated passions to the records of those times, who does not perceive in the conduct of that body a series of glaring violations, not only of positive and constitutional, but of those higher principles which are paramount to all immediate policy. Witness the ordinance for disarming recusants passed by both houses in August 1641, and that in November, authorising the Earl of Leicester to raise men for the defence of Ireland without warrant under the great seal; both manifest encroachments on the executive power;[232] and the enormous extension of privilege, under which every person accused on the slightest testimony of disparaging their proceedings, or even of introducing new-fangled ceremonies in the church, a matter wholly out of their cognisance, was dragged before them as a delinquent, and lodged in their prison.[233] Witness the outrageous attempts to intimidate the minority of their own body in the commitment of Mr. Palmer, and afterwards of Sir Ralph Hopton, to the Tower, for such language used in debate as would not have excited any observation in ordinary times;--their continual encroachments on the rights and privileges of the Lords, as in their intimation that, if bills thought by them necessary for the public good should fall in the upper house, they must join with the minority of the Lords in representing the same to the king;[234] or in the impeachment of the Duke of Richmond for words, and those of the most trifling nature, spoken in the upper house;[235]--their despotic violation of the rights of the people, in imprisoning those who presented or prepared respectful petitions in behalf of the established constitution,[236] while they encouraged those of a tumultuous multitude at their bar in favour of innovation;[237]--their usurpation at once of the judicial and legislative powers in all that related to the church, particularly by their committee for scandalous ministers, under which denomination, adding reproach to injury, they subjected all who did not reach the standard of puritan perfection to contumely and vexation, and ultimately to expulsion from their lawful property.[238] Witness the impeachment of the twelve bishops for treason, on account of their protestation against all that should be done in the House of Lords during their compelled absence through fear of the populace; a protest not perhaps entirely well expressed, but abundantly justifiable in its argument by the plainest principles of law.[239] These great abuses of power, becoming daily more frequent, as they became less excusable, would make a sober man hesitate to support them in a civil war, wherein their success must not only consummate the destruction of the Crown, the church, and the peerage, but expose all who had dissented from their proceedings, as it ultimately happened, to an oppression less severe perhaps, but far more sweeping, than that which had rendered the star-chamber odious. But it may reasonably also be doubted whether, in staking their own cause on the perilous contingencies of war, the House of Commons did not expose the liberties for which they professedly were contending, to a far greater risk than they could have incurred even from peace with an insidious court. For let any one ask himself what would have been the condition of the parliament, if by the extension of that panic which in fact seized upon several regiments, or by any of those countless accidents which determine the fate of battles, the king had wholly defeated their army at Edgehill? Is it not probable, nay, in such a supposition, almost demonstrable, that in those first days of the civil war, before the parliament had time to discover the extent of its own resources, he would have found no obstacle to his triumphal entry into London? And, in such circumstances, amidst the defection of the timid and lukewarm, the consternation of the brawling multitude, and the exultation of his victorious troops, would the triennial act itself, or those other statutes which he had very reluctantly conceded, have stood secure? Or, if we believe that the constitutional supporters of his throne, the Hertfords, the Falklands, the Southamptons, the Spencers, would still have had sufficient influence to shield from violent hands that palladium which they had assisted to place in the building, can there be a stronger argument against the necessity of taking up arms for the defence of liberties, which, even in the contingency of defeat, could not have been subverted? There were many indeed at that time, as there have been ever since, who, admitting all the calamities incident to civil war, of which this country reaped the bitter fruits for twenty years, denied entirely that the parliament went beyond the necessary precautions for self-defence, and laid the whole guilt of the aggression at the king's door. He had given, it was said, so many proofs of a determination to have recourse to arms, he had displayed so insidious an hostility to the privileges of parliament, that, if he should be quietly allowed to choose and train soldiers, under the name of a militia, through hired servants of his own nomination, the people might find themselves either robbed of their liberties by surprise, or compelled to struggle for them in very unfavourable circumstances. The Commons, with more loyal respect perhaps than policy, had opposed no obstacle to his deliberate journey towards the north, which they could have easily prevented,[240] though well aware that he had no other aim but to collect an army; was it more than ordinary prudence to secure the fortified town of Hull with its magazine of arms from his grasp, and to muster the militia in each county under the command of lieutenants in whom they could confide, and to whom, from their rank and personal character, he could frame no just objection? These considerations are doubtless not without weight, and should restrain such as may not think them sufficient from too strongly censuring those, who, deeming that either civil liberty or the ancient constitution must be sacrificed, persisted in depriving Charles the First of every power, which, though pertaining to a king of England, he could not be trusted to exercise. We are, in truth, after a lapse of ages, often able to form a better judgment of the course that ought to have been pursued in political emergencies than those who stood nearest to the scene. Not only we have our knowledge of the event to guide and correct our imaginary determinations; but we are free from those fallacious rumours, those pretended secrets, those imperfect and illusive views, those personal prepossessions, which in every age warp the political conduct of the most well-meaning. The characters of individuals, so frequently misrepresented by flattery or party rage, stand out to us revealed by the tenor of their entire lives, or by the comparison of historical anecdotes, and that more authentic information which is reserved for posterity. Looking as it were from an eminence, we can take a more comprehensive range, and class better the objects before us in their due proportions and in their bearings on one another. It is not easy for us even now to decide, keeping in view the maintenance of the entire constitution, from which party in the civil war greater mischief was to be apprehended; but the election was, I am persuaded, still more difficult to be made by contemporaries. No one, at least, who has given any time to the study of that history, will deny that among those who fought in opposite battalions at Edgehill and Newbury, or voted in the opposite parliaments of Westminster and Oxford, there were many who thought much alike on general theories of prerogative and privilege, divided only perhaps by some casual prejudices, which had led these to look with greater distrust on courtly insidiousness, and those with greater indignation at popular violence. We cannot believe that Falkland and Colepepper differed greatly in their constitutional principles from Whitelock and Pierpoint, or that Hertford and Southamption were less friends to a limited monarchy than Essex and Northumberland. There is, however, another argument sometimes alleged of late, in justification of the continued attacks on the king's authority; which is the most specious, as it seems to appeal to what are now denominated the Whig principles of the constitution. It has been said that, sensible of the maladministration the nation had endured for so many years (which, if the king himself were to be deemed by constitutional fiction ignorant of it, must at least be imputed to evil advisers), the House of Commons sought only that security which, as long as a sound spirit continues to actuate its members, it must ever require--the appointment of ministers in whose fidelity to the public liberties it could better confide; that by carrying frankly into effect those counsels which he had unwisely abandoned upon the Earl of Bedford's death, and bestowing the responsible offices of the state on men approved for patriotism, he would both have disarmed the jealousy of his subjects and ensured his own prerogative, which no ministers are prone to impair. Those who are struck by these considerations may not, perhaps, have sufficiently reflected on the changes which the king had actually made in his administration since the beginning of the parliament. Besides those already mentioned, Essex, Holland, Say, and St. John, he had, in the autumn of 1641, conferred the post of secretary of state on Lord Falkland, and that of master of the rolls on Sir John Colepepper; both very prominent in the redress of grievances and punishment of delinquent ministers during the first part of the session, and whose attachment to the cause of constitutional liberty there was no sort of reason to distrust. They were indeed in some points of a different way of thinking from Pym and Hampden, and had doubtless been chosen by the king on that account. But it seems rather beyond the legitimate bounds of parliamentary opposition to involve the kingdom in civil war, simply because the choice of the Crown has not fallen on its leaders. The real misfortune was, that Charles did not rest in the advice of his own responsible ministers, against none of whom the House of Commons had any just cause of exception. The theory of our constitution in this respect was very ill-established; and, had it been more so, there are perhaps few sovereigns, especially in circumstances of so much novelty, who would altogether conform to it. But no appointment that he could have made from the patriotic bands of parliament would have furnished a security against the intrigues of his bed-chamber or the influence of the queen. The real problem that we have to resolve, as to the political justice of the civil war, is not the character, the past actions, or even the existing designs, of Charles; not even whether he had as justly forfeited his crown as his son was deemed to have done for less violence and less insincerity; not even, I will add, whether the liberties of his subjects could have been absolutely secure under his government; but whether the risk attending his continuance upon the throne with the limited prerogatives of an English sovereign were great enough to counterbalance the miseries of protracted civil war, the perils of defeat, and the no less perils, as experience showed, of victory. Those who adopt the words spoken by one of our greatest orators, and quoted by another, "There was ambition, there was sedition, there was violence; but no man shall persuade me that it was not the cause of liberty on one side, and of tyranny on the other," have for themselves decided this question.[241] But, as I know (and the history of eighteen years is my witness) how little there was on one side of such liberty as a wise man would hold dear, so I am not yet convinced that the great body of the royalists, the peers and gentry of England, were combating for the sake of tyranny. I cannot believe them to have so soon forgotten their almost unanimous discontent at the king's arbitrary government in 1640, or their general concurrence in the first salutary measures of the parliament. I cannot think that the temperate and constitutional language of the royal declarations and answers to the House of Commons in 1642, known to have proceeded from the pen of Hyde, and as superior to those on the opposite side in argument as they were in eloquence, was intended for the willing slaves of tyranny. I cannot discover in the extreme reluctance of the royalists to take up arms, and their constant eagerness for an accommodation (I speak not of mere soldiers, but of the greater and more important portion of that party), that zeal for the king's re-establishment in all his abused prerogatives which some connect with the very names of a royalist or a cavalier.[242] It is well observed by Burnet, in answer to the vulgar notion that Charles I. was undone by his concessions, that, but for his concessions, he would have had no party at all. This is, in fact, the secret of what seems to astonish the parliamentary historian, May, of the powerful force that the king was enabled to raise, and the protracted resistance he opposed. He had succeeded, according to the judgment of many real friends of the constitution, in putting the House of Commons in the wrong. Law, justice, moderation, once ranged against him, had gone over to his banner. His arms might reasonably be called defensive, if he had no other means of preserving himself from the condition, far worse than captivity, of a sovereign compelled to a sort of suicide upon his own honour and authority. For, however it may be alleged that a king is bound in conscience to sacrifice his power to the public will, yet it could hardly be inexcusable not to have practised this disinterested morality; especially while the voice of his people was by no means unequivocal, and while the major part of one house of parliament adhered openly to his cause.[243] It is indeed a question perfectly distinguishable from that of the abstract justice of the king's cause, whether he did not too readily abandon his post as a constitutional head of the parliament; whether, with the greater part of the peers, and a very considerable minority in the Commons, resisting in their places at Westminster all violent encroachments on his rights, he ought not rather to have sometimes persisted in a temperate though firm assertion of them, sometimes had recourse to compromise and gracious concession, instead of calling away so many of his adherents to join his arms as left neither numbers nor credit with those who remained. There is a remarkable passage in Lord Clarendon's life, not to quote Whitelock and other writers less favourable to Charles, where he intimates his own opinion that the king would have had a fair hope of withstanding the more violent faction, if, after the queen's embarkation for Holland in February 1642, he had returned to Whitehall; admitting, at the same time, the hazards and inconveniences to which this course was liable.[244] That he resolved on trying the fortune of arms, his noble historian insinuates to have been the effect of the queen's influence, with whom, before her departure, he had concerted his future proceedings. Yet, notwithstanding the deference owing to contemporary opinions, I cannot but suspect that Clarendon has, in this instance as in some other passages, attached too great an importance to particular individuals, measuring them rather by their rank in the state, than by that capacity and energy of mind, which, in the levelling hour of revolution, are the only real pledges of political influence. He thought it of the utmost consequence to the king that he should gain over the Earls of Essex and Northumberland, both, or at least the former, wavering between the two parties, though voting entirely with the Commons. Certainly the king's situation required every aid, and his repulsive hardness towards all who had ever given him offence displayed an obstinate unconciliating character, which deprived him of some support he might have received. But the subsequent history of these two celebrated earls, and indeed of all the moderate adherents to the parliament, will hardly lead us to believe that they could have afforded the king any protection. Let us suppose that he had returned to Whitehall, instead of proceeding towards the north. It is evident that he must either have passed the bill for the militia, or seen the ordinances of both houses carried into effect without his consent. He must have consented to the abolition of episcopacy, or at least have come into some compromise which would have left the bishops hardly a shadow of their jurisdiction and pre-eminence. He must have driven from his person those whom he best loved and trusted. He would have found it impossible to see again the queen, without awakening distrust and bringing insult on them both. The royalist minority of parliament, however considerable in numbers, was lukewarm and faint-hearted. That they should have gained strength so as to keep a permanent superiority over their adversaries, led as they were by statesmen so bold and profound as Hampden, Pym, St. John, Cromwell, and Vane, is what, from the experience of the last twelve months, it was unreasonable to anticipate. But, even if the Commons had been more favourably inclined, it would not have been in their power to calm the mighty waters that had been moved from their depths. They had permitted the populace to mingle in their discussions, testifying pleasure at its paltry applause, and encouraging its tumultuous aggressions on the minority of the legislature. What else could they expect than that, so soon as they ceased to satisfy the city apprentices, or the trained bands raised under their militia bill, they must submit to that physical strength which is the ultimate arbiter of political contentions? Thus, with evil auspices, with much peril of despotism on the one hand, with more of anarchy on the other, amidst the apprehensions and sorrows of good men, the civil war commenced in the summer of 1642. I might now perhaps pass over the period that intervened, until the restoration of Charles II., as not strictly belonging to a work which undertakes to relate the progress of the English constitution. But this would have left a sort of chasm that might disappoint the reader; and as I have already not wholly excluded our more general political history, without a knowledge of which the laws and government of any people must be unintelligible, it will probably not be deemed an unnecessary digression, if I devote one chapter to the most interesting and remarkable portion of British history. FOOTNOTES: [164] 4 E. 3, c. 14. It appears by the Journals, 30th Dec. 1640, that the Triennial Bill was originally for the yearly holding of parliaments. It seems to have been altered in the committee; at least we find the title changed, Jan. 19. [165] _Parl. Hist._ 702, 717; Stat. 16 Car. I, c. 1. [166] C. 14. [167] C. 8. The king had professed, in Lord-Keeper Finch's speech on opening the parliament of April 1640, that he had only taken tonnage and poundage _de facto_, without claiming it as a right, and had caused a bill to be prepared, granting it to him from the commencement of his reign. _Parl. Hist._ 533. See preface to Hargrave's _Collection of Law Tracts_, p. 195, and Rymer, xx. 118, for what Charles did with respect to impositions on merchandise. The long parliament called the farmers to account. [168] 16 Car. I, c. 10. The abolition of the star-chamber was first moved (March 5th, 1641) by Lord Andover, in the House of Lords, to which he had been called by writ. Both he and his father, the Earl of Berkshire, were zealous royalists during the subsequent war. _Parl. Hist._ 722. But he is not, I presume, the person to whom Clarendon alludes. This author insinuates that the act for taking away the star-chamber passed both houses without sufficient deliberation, and that the peers did not venture to make any opposition; whereas there were two conferences between the houses on the subject, and several amendments and provisos made by the Lords, and agreed by the Commons. Scarce any bill, during this session, received so much attention. The king made some difficulty about assenting to the bills taking away the star-chamber and high-commission courts, but soon gave way. _Parl. Hist._ 853. [169] Coke has strongly argued the illegality of fining and imprisoning by the high commission. 4th Inst. 324. And he omitted this power in a commission he drew, "leaving us," says Bishop Williams, "nothing but the old rusty sword of the church, excommunication." Cabala, p. 103. Care was taken to restore this authority in the reign of Charles. [170] 16 Car. I, c. 11. [171] Hyde distinguished himself as chairman of the committee which brought in the bill for abolishing the court of York. In his speech on presenting this to the Lords, he alludes to the tyranny of Strafford, not rudely, but in a style hardly consistent with that of his _History_. _Parl. Hist._ 766. The editors of this, however, softened a little what he did say in one or two places; as where he uses the word _tyranny_, in speaking of Lord Mountnorris's case. [172] C. 15. [173] C. 19, 20. [174] C. 16. [175] C. 28. [176] Journals, 16th Dec.; _Parl. Hist._ 968; Nalson, 750. It is remarkable that Clarendon, who is sufficiently jealous of all that he thought encroachment in the Commons, does not censure their explicit assertion of this privilege. He lays the blame of the king's interference on St. John's advice; which is very improbable. [177] "A greater and more universal hatred," says Northumberland in a letter to Leicester, Nov. 13, 1640 (_Sidney Papers_, ii. 663), "was never contracted by any person than he has drawn upon himself. He is not at all dejected, but believes confidently to clear himself in the opinion of all equal and indifferent-minded hearers, when he shall come to make his defence. The king is in such a straight that I do not know how he will possibly avoid, without endangering the loss of the whole kingdom, the giving way to the remove of divers persons, as well as other things that will be demanded by the parliament. After they have done questioning some of the great ones, they intend to endeavour the displacing of Jermyn, Newcastle, and Walter Montague." [178] Clarendon, i. 305. No one opposed the resolution to impeach the lord lieutenant, save that Falkland suggested the appointment of a committee, as more suitable to the gravity of their proceedings. But Pym frankly answered that this would ruin all; since Strafford would doubtless obtain a dissolution of the parliament, unless they could shut him out from access to the king. _The Letters of Robert Baillie_, Principal of the University of Glasgow (two vols. Edinburgh, 1775), abound with curious information as to this period, and for several subsequent years. Baillie was one of the Scots commissioners deputed to London at the end of 1640, and took an active share in promoting the destruction of episcopacy. His correspondence breathes all the narrow and exclusive bigotry of the presbyterian school. The following passage is so interesting that, notwithstanding its length, it may find a place here:-- "The lieutenant of Ireland came but on Monday to town late, on Tuesday rested, on Wednesday came to parliament, but ere night he was caged. Intolerable pride and oppression cries to Heaven for a vengeance. The lower house closed their doors; the speaker kept the keys till his accusation was concluded. Thereafter Mr. Pym went up, with a number at his back, to the higher house; and, in a pretty short speech, did, in the name of the lower house, and in the name of the commons of all England, accuse Thomas Earl of Strafford, lord lieutenant of Ireland, of high treason; and required his person to be arrested till probation might be heard; so Mr. Pym and his back were removed. The Lords began to consult on that strange and unexpected motion. The word goes in haste to the lord lieutenant, where he was with the king; with speed he comes to the house; he calls rudely at the door; James Maxwell, keeper of the black rod, opens: his lordship, with a proud glooming countenance, makes towards his place at the board head: but at once many bid him void the house; so he is forced, in confusion, to go to the door till he was called. After consultation, being called in, he stands, but is commanded to kneel, and on his knees to hear the sentence. Being on his knees, he is delivered to the keeper of the black rod, to be prisoner till he was cleared of these crimes the House of Commons had charged him with. He offered to speak, but was commanded to be gone without a word. In the outer room, James Maxwell required him, as prisoner, to deliver his sword. When he had got it, he cries with a loud voice, for his man to carry my lord lieutenant's sword. This done, he makes through a number of people towards his coach; all gazing, no man capping to him, before whom, that morning, the greatest of England would have stood discovered, all crying, 'What is the matter?' He said, 'A small matter, I warrant you.' They replied, 'Yes, indeed, high treason is a small matter.' Coming to the place where he expected his coach, it was not there; so he behoved to return that same way, through a world of gazing people. When at last he had found his coach, and was entering, James Maxwell told him, 'Your lordship is my prisoner, and must go in my coach;' so he behoved to do."--P. 217. [179] The trial of Strafford is best to be read in Rushworth or Nalson. The account in the new edition of the _State Trials_, I know not whence taken, is curious, as coming from an eye-witness, though very partial to the prisoner; but it can hardly be so accurate as the others. His famous peroration was printed at the time in a loose sheet. It is in the _Somers Tracts_. Many of the charges seem to have been sufficiently proved, and would undoubtedly justify a severe sentence on an impeachment for misdemeanours. It was not pretended by the managers, that more than two or three of them amounted to treason; but it is the unquestionable right of the Commons to blend offences of a different degree in an impeachment. It has been usually said that the Commons had recourse to the bill of attainder, because they found it impossible to support the impeachment for treason. But St. John positively denies that it was intended to avoid the judicial mode of proceeding. Nalson, ii. 162. And, what is stronger, the Lords themselves voted upon the articles judicially, and not as if they were enacting a legislative measure. As to the famous proviso in the bill of attainder, that the judges should determine nothing to be treason, by virtue of this bill, which they would not have determined to be treason otherwise (on which Hume and many others have relied, to show the consciousness of parliament that the measure was not warranted by the existing law), it seems to have been introduced in order to quiet the apprehensions of some among the peers, who had gone great lengths with the late government, and were astonished to find that their obedience to the king could be turned into treason against him. [180] They were confirmed, in a considerable degree, by the evidence of Northumberland and Bristol, and even of Usher and Juxon. Rushw. Abr. iv. 455, 559, 586; Baillie, 284. But are they not also exactly according to the principles always avowed and acted upon by that minister, and by the whole phalanx of courtiers, that a king of England does very well to ask his people's consent in the first instance, but, if that is frowardly refused, he has a paramount right to maintain his government by any means? It may be remarked, that Clarendon says: "the law was clear that less than two witnesses ought not to be received in a case of treason." Yet I doubt whether any one had been allowed the benefit of that law; and the contrary had been asserted repeatedly by the judges. [181] Lords' Journals, May 6; _Parl. Hist._ 757. This opinion of the judges which is not mentioned by Clarendon, Hume, and other common historians, seems to have cost Strafford his life. It was relied on by some bishops, especially Usher, whom Charles consulted whether he should pass the bill of attainder, though Clarendon puts much worse casuistry into the mouth of Williams. Parr's _Life of Usher_, p. 45; Hacket's _Life of Williams_, p. 160. Juxon is said to have stood alone among five bishops, in advising the king to follow his conscience. Clarendon, indeed, does not mention this; though he glances at Usher with some reproach (p. 451); but the story is as old as the _Icon Basilike_, in which it is alluded to. [182] The names of the fifty-nine members of the Commons, who voted against the bill of attainder, and which were placarded as Straffordians, may be found in the _Parliamentary History_, and several other books. It is remarkable that few of them are distinguished persons; none so much so as Selden, whose whole parliamentary career, notwithstanding the timidity not very fairly imputed to him, was eminently honourable and independent. But we look in vain for Hyde, Falkland, Colepepper, or Palmer. The first, probably, did not vote; the others may have been in the majority of 204, by whom the bill was passed. Indeed, I have seen a MS. account of the debate, where Falkland and Colepepper appear to have both spoken for it. As to the Lords, we have, so far as I know, no list of the nineteen who acquitted Strafford. It did not comprehend Hertford, Bristol, or Holland, who were absent (Nalson, 316), nor any of the popish lords, whether through fear or any private influence. Lord Clare, his brother-in-law, and Lord Saville, a man of the most changeable character, were his prominent advocates during the trial; though Bristol, Hertford, and even Say, desired to have had his life spared (Baillie, 243, 247, 271, 292); and the Earl of Bedford, according to Clarendon, would have come into this. But the sudden and ill-timed death of that eminent peer put an end to the negotiation for bringing the parliamentary leaders into office, wherein it was a main object with the king to save the life of Strafford; entirely, as I am inclined to believe, from motives of conscience and honour, without any views of ever again restoring him to power. Charles had no personal attachment to Strafford; and the queen's dislike of him (according to Clarendon and Burnet, though it must be owned, that Madame de Motteville does not confirm this), or at least his general unpopularity at court, would have determined the king to lay him aside. It is said by Burnet that the queen prevailed on Charles to put that strange postscript to his letter to the Lords, in behalf of Strafford, "If he must die, it were charity to reprieve him till Saturday;" by which he manifestly surrendered him up, and gave cause to suspect his own sincerity. Doubts have been thrown out by Carte as to the genuineness of Strafford's celebrated letter, requesting the king to pass the bill of attainder. They do not appear to be founded on much evidence; but it is certain, by the manner in which he received the news, that he did not expect to be sacrificed by his master. [183] _Parliamentary History_, ii. 750. [184] See some judicious remarks on this by May (p. 64), who generally shows a good deal of impartiality at this period of history. The violence of individuals, especially when of considerable note, deserves to be remarked, as characteristic of the temper that influenced the house, and as accounting for the disgust of moderate men. "Why should he have law himself?" said St. John, in arguing the bill of attainder before the peers, "who would not that others should have any? We indeed give laws to hares and deer, because they are beasts of chase; but we give none to wolves and foxes, but knock them on the head wherever they are found, because they are beasts of prey." Nor was this a mere burst of passionate declamation, but urged as a serious argument for taking away Strafford's life without sufficient grounds of law or testimony. Rushworth Abr. iv. 61; Clarendon, i. 407. Strode told the house that, as they had charged Strafford with high treason, it concerned them to charge as conspirators in the same treason all who had before, or should hereafter, plead in that cause. Baillie, 252. This monstrous proposal seems to please the presbyterian bigot. "If this hold," he observes, "Strafford's council will be rare." [185] Clarendon and Hume, of course, treat this as a very trifling affair, exaggerated for factious purposes. But those who judge from the evidence of persons unwilling to accuse themselves or the king, and from the natural probabilities of the case, will suspect, or, rather, be wholly convinced, that it had gone much farther than these writers admit. See the accounts of this plot in Rushworth and Nalson, or in the _Parliamentary History_. The strongest evidence, however, is furnished by Henrietta, whose relation of the circumstances to Madame de Motteville proves that the king and herself had the strongest hopes from the influence of Goring and Wilmot over the army, by means of which they aimed at saving Strafford's life; though the jealousy of those ambitious intriguers, who could not both enjoy the place to which each aspired, broke the whole plot. _Mem. de Motteville_, i. 253. Compare with this passage, Percy's letter, and Goring's deposition (Nalson, ii. 286, 294), for what is said of the king's privity by men who did not lose his favour by their evidence. Mr. Brodie has commented in a long note (iii. 189) on Clarendon's apparent misrepresentations of this business. But what has escaped the acuteness of this writer is, that the petition to the king and parliament drawn up for the army's subscription, and asserted by Clarendon to have been the only step taken by those engaged in the supposed conspiracy (though not, as Mr. Brodie too rashly conjectures, a fabrication of his own), is most carelessly referred by him to that period or to the agency of Wilmot and his coadjutors; having been, in fact, prepared about the July following, at the instigation of Daniel O'Neale, and some others of the royalist party. This is manifest, not only from the allusions it contains to events that had not occurred in the months of March and April, when the plot of Wilmot and Goring was on foot, especially the bill for triennial parliaments, but from evidence given before the House of Commons in October 1641, and which Mr. Brodie has published in the appendix to his third volume, though, with an inadvertence of which he is seldom guilty, overlooking its date and purport. This, however, is of itself sufficient to display the inaccurate character of Clarendon's history; for I can scarcely ascribe the present incorrectness to design. There are, indeed, so many mistakes as to dates and other matters in Clarendon's account of this plot, that, setting aside his manifest disposition to suppress the truth, we can place not the least reliance on his memory as to those points which we may not be well able to bring to a test. [186] Journals; _Parliamentary Hist._ 784; May, 67; Clarendon. According to Mrs. Hutchinson (p. 97) this bill originated with Mr. Pierpoint. If we should draw any inference from the Journals, Sir John Colepepper seems to have been the most prominent of its supporters. Mr. Hyde and Lord Falkland were also managers of the conference with the Lords. But in Sir Ralph Verney's manuscript notes, I find Mr. Whitelock mentioned as being ordered by the house to prepare the bill; which seems to imply that he had moved it, or at least been very forward in it. Yet all these were moderate men. [187] Neal (p. 632) has printed these canons imperfectly. They may be found at length in Nalson, i. 542. It is remarkable that the seventh canon expressly denies a corporal presence in the eucharist, which is quite contrary to what Laud had asserted in his speech in the star-chamber. His influence does not seem to have wholly predominated in this particular canon, which is expressed with a moderation of which he was incapable. [188] Clarendon; _Parl. Hist._ 678, 896; Neal, 647, 720. These votes as to the canons, however, were carried _nem. con._ Journals, 16th Dec. 1640. [189] Neal, 709. Laud and Wren were both impeached Dec. 18: the latter entirely for introducing superstitions. _Parl. Hist._ 861. He lay in the Tower till 1659. [190] Neal says that the major part of the parliamentarians at the beginning of the war were for moderated episcopacy (ii. 4), and asserts the same in another place (i. 715) of the puritans, in contradiction of Rapin. "How this will go," says Baillie, in April 1641, "the Lord knows; all are for the creating of a kind of presbytery, and for bringing down the bishops in all things spiritual and temporal, so low as can be with any subsistence; but their utter abolition, which is the only aim of the most godly, is the knot of the question."--i. 245. [191] Neal, 666, 672, 713; Collier, 805; Baxter's _Life_, p. 62. The ministers' petition, as it was called, presented Jan. 23, 1641, with the signatures of 700 beneficed clergymen, went to this extent of reformation. Neal, 679. [192] _Parl. Hist._ 673; Clarendon, i. 356; Baillie's _Letters_, 218, etc. Though sanguine as to the progress of his sect, he admits that it was very difficult to pluck up episcopacy by the roots; for this reason they did not wish the house to give a speedy answer to the city petition. P. 241. It was carried by 36 or 37 voices, he says, to refer it to the committee of religion. P. 245. No division appears on the Journals. The whole influence of the Scots commissioners was directed to this object; as not only Baillie's _Letters_, but those of Johnstone of Wariston (Dalrymple's _Memorials of James and Charles I._, ii. 114, etc.) show. Besides their extreme bigotry, which was the predominant motive, they had a better apology for interfering with church-government in England, with which the archbishop had furnished them: it was the only sure means of preserving their own. [193] Rushworth; Nalson. [194] _Parl. Hist._ 814, 822, 828. Clarendon tells us, that being chairman of the committee to whom this bill was referred, he gave it so much interruption, that no progress could be made before the adjournment. The house came, however, to a resolution, that the taking away the offices of archbishops, bishops, chancellors, and commissaries out of this church and kingdom, should be one clause of the bill. June 12. Commons' Journals. [195] Lord Hertford presented one to the Lords, from Somersetshire, signed by 14,350 freeholders and inhabitants. Nalson, ii. 727. The Cheshire petition, for preserving the Common Prayer, was signed by near 10,000 hands. _Id._ 758. I have a collection of those petitions now before me, printed in 1642, from thirteen English and five Welsh counties, and all very numerously signed. In almost every instance, I observe, they thank the parliament for putting a check to innovations and abuses, while they deprecate the abolition of episcopacy and the liturgy. Thus it seems that the presbyterians were very far from having the nation on their side. The following extract from the Somersetshire petition is a good sample of the general tone: "For the present government of the church we are most thankful to God, believing it in our hearts to be the most pious and the wisest that any people or kingdom upon earth hath been withal since the apostles' days; though we may not deny but, through the frailty of men, and corruption of times, some things of ill consequence, and other needless, are stolen or thrust into it; which we heartily wish may be reformed, and the church restored to its former purity. And, to the end it may be the better preserved from present and future innovation, we wish the wittingly and maliciously guilty, of what condition soever they be, whether bishops or inferior clergy, may receive condign punishment. But, for the miscarriage of governors, to destroy the government, we trust it shall never enter into the hearts of this wise and honourable assembly." [196] The house came to a vote on July 17, according to Whitelock (p. 46) in favour of Usher's scheme, that each county should be a diocese, and that there should be a governing college or presbytery, consisting of twelve, under the presidency of a bishop: Sir E. Dering spoke in favour of this, though his own bill went much farther. Nalson, ii. 294; Neal, 703. I cannot find the vote in the journals; it passed, therefore, I suppose, in the committee, and was not reported to the house. [197] _Parl. Hist._ 774, 794, 817, 910, 1087. The Lords had previously come to resolutions, that bishops should sit in the House of Lords, but not in the privy council, nor be in any commission of the peace. _Id._ 814. The king was very unwilling to give his consent to the bill excluding the bishops from parliament, and was, of course, dissuaded by Hyde from doing so. He was then at Newmarket on his way to the north, and had nothing but war in his head. The queen, however, and Sir John Colepepper, prevailed on him to consent. Clarendon, _History_, ii. 247 (1826); _Life_, 51. The queen could not be expected to have much tenderness for a protestant episcopacy; and it is to be said in favour of Colepepper's advice, who was pretty indifferent in ecclesiastical matters, that the bishops had rendered themselves odious to many of those who wished well to the royal cause. See the very remarkable conversation of Hyde with Sir Edward Verney, who was killed at the battle of Edgehill, where the latter declares his reluctance to fight for the bishops, whose quarrel he took it to be, though bound by gratitude not to desert the king. Clarendon's _Life_, p. 68. This author represents Lord Falkland as having been misled by Hampden to take an unexpected part in favour of the first bill for excluding the bishops from parliament. "The house was so marvellously delighted to see the two inseparable friends divided in so important a point, that they could not contain from a kind of rejoicing; and the more because they saw Mr. Hyde was much surprised with the contradiction, as in truth he was, having never discovered the least inclination in the other towards such a compliance."--i. 413. There is, however, an earlier speech of Falkland in print, against the London petition; wherein, while objecting to the abolition of the order, he intimates his willingness to take away their votes in parliament, with all other temporal authority. _Speeches of the Happy Parliament_, p. 188 (published in 1641). Johnstone of Wariston says there were but four or five votes against taking away civil places and seats in parliament from the bishops. Dalrymple's _Memorials_, ii. 116. But in the journals of the Commons (10th March 1640-1) it is said to be resolved, after a long and mature debate, that the legislative power of bishops is a hindrance to their function. [198] "The higher house," says Baillie, "have made an order, which was read in the churches, that none presume of their own head to alter any customs established by law: this procured ordinance does not discourage any one."--P. 237. Some rioters, however, who had pulled down rails about the altar, etc., were committed by order of the Lords in June. Nalson, ii. 275. [199] _Parl. Hist._ 868. By the hands of this zealous knight fell the beautiful crosses at Charing and Cheap, to the lasting regret of all faithful lovers of antiquities and architecture. [200] _Parl. Hist._ 907; Commons' Journals, Sept. 1, 1641. It was carried at the time on a division by 55 to 37, that the committee "should propound an addition to this order for preventing all contempt and abuse of the book of Common Prayer, and all tumultuous disorders that might arise in the church thereupon." This is a proof that the church party were sometimes victorious in the house. But they did not long retain this casual advantage. For, the Lords having sent down a copy of their order of 16th January above mentioned, requesting the Commons' concurrence, they resolved (Sept. 9) "that the house do not consent to this order; it being thought unreasonable at this time to urge the severe execution of the said laws." They contented themselves with "expecting that the Commons of this realm do, in the meantime, quietly attend the reformation intended, without any tumultuous disturbance of the worship of God and peace of the realm." _See_ Nalson, ii. 484. [201] May, p. 75. See this passage, which is very judicious. The disunion, however, had in some measure began not long after the meeting of parliament; the court wanted, in December 1640, to have given the treasurer's staff to Hertford, whose brother was created a peer by the title of Lord Seymour. Bedford was the favourite with the Commons for the same office, and would doubtless have been a fitter man at the time, notwithstanding the other's eminent virtues. _Sidney Letters_, ii. 665, 666. See also what Baillie says of the introduction of seven lords, "all commonwealth's men," into the council, though, as generally happens, he is soon discontented with some of them. P. 246, 247. There was even some jealousy of Say, as favouring Strafford. [202] Whitelock, p. 46. Bedford was to have been lord treasurer, with Pym, whom he had brought into parliament for Tavistock, as his chancellor of the exchequer; Hollis secretary of state. Hampden is said, but not perhaps on good authority, to have sought the office of governor to the Prince of Wales; which Hume, not very candidly, brings as a proof of his ambition. It seems probable that, if Charles had at that time (May 1641) carried these plans into execution, and ceased to listen to the queen, or to those persons about his bed-chamber, who were perpetually leading him astray, he would have escaped the exorbitant demands which were afterwards made upon him, and even saved his favourite episcopacy. But, after the death of the Earl of Bedford, who had not been hostile to the church, there was no man of rank in that party whom he liked to trust; Northumberland having acted, as he thought, very ungratefully, Say being a known enemy to episcopacy, and Essex, though of the highest honour, not being of a capacity to retain much influence over the leaders of the other house. Clarendon insinuates that, even as late as March 1642, the principal patriots, with a few exceptions, would have been content with coming themselves into power under the king, and on this condition would have left his remaining prerogative untouched (ii. 326). But it seems more probable that, after the accusation of the five members, no measure of this kind would have been of any service to Charles. [203] Commons' Journals, 22nd November. On a second division the same night, whether the remonstrance should be printed, the popular side lost it by 124 to 101. But on 15th December the printing was carried by 135 to 83. Several divisions on important subjects about this time show that the royalist minority was very formidable. But the attendance, especially on that side, seems to have been irregular; and in general, when we consider the immense importance of these debates, we are surprised to find the house so deficient in numbers as many divisions show it to have been. Clarendon frequently complains of the supineness of his party; a fault invariably imputed to their friends by the zealous supporters of established authority, who forget that sluggish, lukewarm, and thoughtless tempers must always exist, and that such will naturally belong to their side. I find in the short pencil notes taken by Sir Ralph Verney, with a copy of which I have been favoured by Mr. Serjeant D'Oyly, the following entry on the 7th of August, before the king's journey to Scotland: "A remonstrance to be made how we found the kingdom and the church, and how the state of it now stands." This is not adverted to in Nalson, nor in the Journals at this time. But Clarendon says, in a suppressed passage (vol. ii. Append. 591) that "at the beginning of the parliament, or shortly after, when all men were inflamed with the pressures and illegalities which had been exercised upon them, a committee was appointed to prepare a remonstrance of the state of the kingdom, to be presented to his majesty, in which the several grievances might be recited; which committee had never brought any report to the house; most men conceiving, and very reasonably, that the quick and effectual progress his majesty made for the reparation of those grievances, and prevention of the like for the future, had rendered that work needless. But as soon as the intelligence came of his majesty being on his way from Scotland towards London, that committee was, with great earnestness and importunity, called upon to bring in the draft of such remonstrance," etc. I find a slight notice of this origin of the remonstrance in the Journals, Nov. 17, 1640. In another place, also suppressed in the common editions, Clarendon says: "This debate held many hours, in which the framers and contrivers of the declaration said very little, or answered any reasons that were alleged to the contrary; the only end of passing it, which was to incline the people to sedition, being a reason not to be given; but called still for the question, presuming their number, if not their reason, would serve to carry it; and after two in the morning (for so long the debate continued, if that can be called a debate, when those only of one opinion argued), etc., it was put to the question." What a strange memory this author had! I have now before me Sir Ralph Verney's MS. note of the debate, whence it appears that Pym, Hampden, Hollis, Glyn, and Maynard, spoke in favour of the remonstrance; nay, as far as these brief memoranda go, Hyde himself seems not to have warmly opposed it. [204] The letters of Sir Edward Nicholas, published as a supplement to Evelyn's _Diary_, show how generally the apprehensions of popish influence were entertained. It is well for superficial pretenders to lay these on calumny and misrepresentation; but such as have read our historical documents, know that the royalists were almost as jealous of the king in this respect as the puritans. See what Nicholas says to the king himself, pp. 22, 25, 29. Indeed he gives several hints to a discerning reader, that he was not satisfied with the soundness of the king's intentions, especially as to O'Neale's tampering with the army, p. 77. Nicholas, however, became afterwards a very decided supporter of the royal cause; and in the council at Oxford, just before the treaty of Uxbridge, was the only one who voted according to the king's wish, not to give the members at Westminster the appellation of a parliament. P. 90. [205] The king's speech about Goodman, Baillie tells us, gave great satisfaction to all; "with _much humming_ was it received."--P. 240. Goodman petitioned the house that he might be executed, rather than become the occasion of differences between the king and parliament. This was earlier in time, and at least equal in generosity, to Lord Strafford's famous letter; or perhaps rather more so, since, though it turned out otherwise, he had greater reason to expect that he should be taken at his word. It is remarkable, that the king says in his answer to the Commons, that no priest had been executed merely for religion, either by his father or Elizabeth, which, though well meant, was quite untrue. _Parl. Hist._ 712; Butler, ii. 5. [206] See what Clarendon says of the effect produced at Westminster by the Incident, in one of the suppressed passages. Vol. ii. Append, p. 575, edit. 1826. [207] Nalson, ii. 788, 792, 804; Clarendon, ii. 84. The queen's behaviour had been extraordinarily imprudent from the very beginning. So early as Feb. 17, 1641, the French ambassador writes word: "La reine d'Angleterre dit publiquement qu'il y a une trève arrestée pour trois ans entre la France et l'Espagne, et que ces deux couronnes vont unir leurs forces pour la défendre et pour venger les catholiques." Mazure, _Hist. de la Révol. en 1688_, ii. 419. She was very desirous to go to France, doubtless to interest her brother and the queen in the cause of royalty. Lord Holland, who seems to have been the medium between the parliamentary chiefs and the French court, signified how much this would be dreaded by the former; and Richelieu took care to keep her away; of which she bitterly complained. This was in February. Her majesty's letter, which M. Mazure has been malicious enough to print verbatim, is a curious specimen of orthography. _Id._ p. 416. Her own party were equally averse to this step, which was chiefly the effect of cowardice; for Henrietta was by no means the high-spirited woman that some have fancied. It is well known that a few months afterwards she pretended to require the waters of Spa for her health; but was induced to give up her journey. [208] Clarendon, ii. 81. This writer intimates that the Tower was looked upon by the court as a bridle upon the city. [209] Nalson, ii. 810, and other writers, ascribe this accusation of Lord Kimbolton in the peers, and of the five members, as they are commonly called, Pym, Hollis, Hampden, Haslerig, and Strode, to secret information obtained by the king in Scotland of their former intrigues with that nation. This is rendered in some measure probable by a part of the written charge preferred by the attorney-general before the House of Lords, and by expressions that fell from the king; such as, "it was a treason which they should all thank him for discovering." Clarendon, however, hardly hints at this; and gives, at least, a hasty reader to understand that the accusation was solely grounded on their parliamentary conduct. Probably he was aware that the act of oblivion passed last year afforded a sufficient legal defence to the charge of corresponding with the Scots in 1640. In my judgment, they had an abundant justification in the eyes of their country for intrigues which, though legally treasonable, had been the means of overthrowing despotic power. The king and courtiers had been elated by the applause he received when he went into the city to dine with the lord mayor on his return from Scotland; and Madame de Motteville says plainly, that he determined to avail himself of it in order to seize the leaders in parliament (i. 264). Nothing could be more irregular than the mode of Charles's proceedings in this case. He sends a message by the serjeant-at-arms to require of the speaker that five members should be given up to him on a charge of high treason; no magistrate's or counsellor's warrant appeared; it was the king acting singly, without the intervention of the law. It is idle to allege, like Clarendon, that privilege of parliament does not extend to treason; the breach of privilege, and of all constitutional law, was in the mode of proceeding. In fact, the king was guided by bad private advice, and cared not to let any of his privy council know his intention, lest he should encounter opposition. The following account of the king's coming to the house on this occasion is copied from the pencil notes of Sir R. Verney. It has been already printed by Mr. Hatsell (_Precedents_, iv. 106), but with no great correctness. What Sir R. V. says of the transactions of Jan. 3 is much the same as we read in the Journals. He thus proceeds: "Tuesday, January 4, 1641. The five gentlemen which were to be accused came into the house, and there was information that they should be taken away by force. Upon this, the house sent to the lord mayor, aldermen, and common council to let them know how their privileges were like to be broken, and the city put into danger, and advised them to look to their security. "Likewise some members were sent to the inns of court to let them know how they heard they were tampered withal to assist the king against them, and therefore they desired them not to come to Westminster. "Then the house adjourned till one of the clock. "As soon as the house met again, it was moved, considering there was an intention to take these five members away by force, to avoid all tumult, let them be commanded to absent themselves; upon this the house gave them leave to absent themselves, but entered no order for it. And then the five gentlemen went out of the house. "A little after the king came with all his guard, and all his pensioners, and two or three hundred soldiers and gentlemen. The king commanded the soldiers to stay in the hall, and sent us word he was at the door. The speaker was commanded to sit still with the mace lying before him, and then the king came to the door, and took the palsgrave in with him, and commanded all that came with him upon their lives not to come in. So the doors were kept open, and the Earl of Roxburgh stood within the door, leaning upon it. Then the king came upwards towards the chair with his hat off, and the speaker stepped out to meet him; then the king stepped up to his place, and stood upon the step, but sat not down in the chair. "And after he had looked a great while, he told us he would not break our privileges, but treason had no privilege; he came for those five gentlemen, for he expected obedience yesterday, and not an answer. Then he called Mr. Pym and Mr. Hollis by name, but no answer was made. Then he asked the speaker if they were here, or where they were? Upon this the speaker fell on his knees, and desired his excuse, for he was a servant to the house, and had neither eyes nor tongue to see or say anything, but what they commanded him: then the king told him he thought his own eyes were as good as his, and then said his birds were flown, but he did expect the house should send them to him; and if they did not, he would seek them himself, for their treason was foul, and such a one as they would all thank him to discover: then he assured us they should have a fair trial; and so went out, pulling off his hat till he came to the door. "Upon this the house did instantly resolve to adjourn till to-morrow at one of the clock, and in the interim they might consider what to do. "Wednesday, 5th Jan. 1641.--The house ordered a committee to sit at Guildhall in London, and all that would come had voices. This was to consider and advise how to right the house in point of privilege broken by the king's coming yesterday with a force to take members out of our house. They allowed the Irish committee to sit, but would meddle with no other business till this were ended; they acquainted the Lords in a message with what they had done, and then they adjourned the house till Tuesday next." The author of these memoranda in pencil, which extend, at intervals of time, from the meeting of the parliament to April 1642, though mistaken by Mr. Hatsell for Sir Edmund Verney, member for the county of Bucks, and killed at the battle of Edgehill, has been ascertained by my learned friend, Mr. Serjeant D'Oyly, to be his brother Sir Ralph, member for Aylesbury. He continued at Westminster, and took the covenant; but afterwards retired to France, and was disabled to sit by a vote of the house, Sept. 22, 1645. [210] _Mém. de Motteville_, i. 264. Clarendon has hardly been ingenuous in throwing so much of the blame of this affair on Lord Digby. Indeed, he insinuates in one place, that the queen's apprehension of being impeached, with which some one in the confidence of the parliamentary leaders (either Lord Holland or Lady Carlisle) had inspired her, led to the scheme of anticipating them (ii. 232). It has been generally supposed that Lady Carlisle gave the five members a hint to absent themselves. The French ambassador, however, Montereuil, takes the credit to himself. "J'avois prévenu mes amis, et ils s'étoient mis en sûreté." Mazure, p. 429. It is probable that he was in communication with that intriguing lady. [211] Pp. 159, 180. [212] The earliest proof that the Commons gave of their intention to take the militia into their hands was immediately upon the discovery of Percy's plot, 5th May 1641, when an order was made that the members of each county, etc., should meet to consider in what state the places for which they serve are in respect of arms and ammunition, and whether the deputy lieutenants and lord lieutenants are persons well affected to the religion and the public peace, and to present their names to the house, and who are the governors of forts and castles in their counties. Commons' Journals. Not long afterwards, or at least before the king's journey to Scotland, Sir Arthur Haslerig, as Clarendon informs us, proposed a bill for settling the militia in such hands as they should nominate, which was seconded by St. John, and read once, "but with so universal a dislike, that it was never called upon a second time." Clarendon, i. 488. I can find nothing of this in the Journals, and believe it to be one of the anachronisms into which this author has fallen, in consequence of writing at a distance from authentic materials. The bill to which he alludes must, I conceive, be that brought in by Haslerig long after (7th Dec. 1641), not, as he terms it, for settling the militia, but for making certain persons, leaving their names in blank, "lords general of all the forces within England and Wales, and lord admiral of England." The persons intended seem to have been Essex, Holland, and Northumberland. The Commons had for some time planned to give the two former earls a supreme command over the trained bands north and south of Trent (Journals, Nov. 15 and 16); which was afterwards changed into the scheme of lord lieutenants of their own nomination for each county. The bill above mentioned having been once read, it was moved that it be rejected, which was negatived by 158 to 125. Commons' Journals, 7th Dec. Nalson, ii. 719, has made a mistake about these numbers. The bill, however, was laid aside, a new plan having been devised. It was ordered (31st Dec. 1641) "that the house be resolved into a committee on Monday next (Jan. 3), to take into consideration the militia of the kingdom." That Monday (Jan. 3) was the famous day of the king's message about the five members; and on Jan. 13 a declaration for putting the kingdom in a state of defence passed the Commons, by which "all officers, magistrates, etc., were enjoined to take care that no soldiers be raised, nor any castles or arms given up, _without his majesty's pleasure, signified by both houses of parliament_." Commons' Journals; _Parl. Hist._ 1035. The Lords at the time refused to concur in this declaration, which was afterwards changed into the ordinance for the militia; but 32 peers signed a protest (_Id._ 1049), and the house not many days afterwards came to an opposite vote, joining with the Commons in their demand of the militia. _Id._ 1072, 1091. [213] Rymer, sub Edw. I. et II. _passim_. Thus, in 1297, a writ to the sheriff of Yorkshire directs him to make known to all, qui habent 20 libratas terræ et reditus per annum, tam illis qui non tenent de nobis in capite quam illis qui tenent, ut de equis et armis sibi provideant et se probarent indilatè; ita quod sint prompti et parati ad veniendum ad nos et eundum cum propriâ personâ nostrâ, pro defensione ipsorum et totius regni nostri prædicti quandocunque pro ipsis duxerimus demandandum. ii. 864. [214] Stat. 1 Edw. III. c. 5. [215] 25 Edw. III. c. 8. 4 H. IV. c. 13. [216] 4 and 5 Philip and Mary, c. 3. The Harleian manuscripts are the best authority for the practice of pressing soldiers to serve in Ireland or elsewhere, and are full of instances. The Mouldys and Bullcalfs were in frequent requisition. See vols. 309, 1926, 2219, and others. Thanks to Humphrey Wanley's diligence, the analysis of these papers in the catalogue will save the enquirer the trouble of reading, or the mortification of finding he cannot read, the terrible scrawl in which they are generally written. [217] Wilkins's _Leges Anglo-Saxonicæ_, p. 333; Lyttleton's _Henry II._, iii. 354. [218] Stat. 13 E. I. [219] 5 Philip and Mary, c. 2. [220] 1 Jac. c. 25, § 46. An order of council, in Dec. 1638, that every man having lands of inheritance to the clear yearly value of £200 should be chargeable to furnish a light-horse man, every one of £300 estate to furnish a lance, at the discretion of the lord lieutenant, was unwarranted by any existing law, and must be reckoned among the violent stretches of the prerogative at that time. Rushw. Abr. ii. 500. [221] Rymer, xix. 310. [222] Grose's _Military Antiquities_, i. 150. The word artillery was used in that age for the long-bow. [223] Whitelock maintained, both on this occasion, and at the treaty of Uxbridge, that the power of the militia resided in the king and two houses jointly. Pp. 55, 129. This, though not very well expressed, can only mean that it required an act of parliament to determine and regulate it. [224] See the list of those recommended, _Parl. Hist._ 1083. Some of these were royalists; but on the whole, three-fourths of the military force of England would have been in the hands of persons, who, though men of rank, and attached to the monarchy, had given Charles no reason to hope that they would decline to obey any order which the parliament might issue, however derogatory or displeasing to himself. [225] "When this bill had been with much ado accepted, and first read, there were few men who imagined it would ever receive further countenance; but now there were very few who did not believe it to be a very necessary provision for the peace and safety of the kingdom. So great an impression had the late proceedings made upon them, that with little opposition it passed the Commons, and was sent up to the Lords." Clarend. ii. 180. [226] Clarendon, ii. 375; _Parl. Hist._ 1077, 1106, etc. It may be added, that the militia bill, as originally tendered to the king by the two houses, was ushered in by a preamble asserting that there had been a most dangerous and desperate design on the House of Commons, the effect of the bloody counsels of the papists, and other ill-affected persons, who had already raised a rebellion in Ireland. Clar. p. 336. Surely he could not have passed this, especially the last allusion, without recording his own absolute dishonour: but it must be admitted, that on the king's objection they omitted this preamble, and also materially limited the powers of the lords lieutenant to be appointed under the bill. [227] A declaration of the grievances of the kingdom, and the remedies proposed, dated April 1, may be found in the _Parliamentary History_, p. 1155. But that work does not notice that it had passed the Commons on Feb. 19, before the king had begun to move towards the north. Commons' Journals. It seems not to have pleased the House of Lords, who postponed its consideration, and was much more grievous to the king than the nineteen propositions themselves. One proposal was to remove all papists from about the queen; that is, to deprive her of the exercise of her religion, guaranteed by her marriage contract. To this objection Pym replied that the House of Commons had only to consider the law of God and the law of the land; that they must resist idolatry, lest they incur the divine wrath, and must see the laws of this kingdom executed; that the public faith is less than that they owe to God, against which no contract can oblige, neither can any bind us against the law of the kingdom. _Id._ 1162. [228] _Parl. Hist._ 702. [229] Clarendon, p. 452. Upon this passage in the remonstrance a division took place, when it was carried by 103 to 61. _Parl. Hist._ 1302. The words in the old form of coronation oath, as preserved in a bill of parliament under Henry IV., concerning which this grammatico-political contention arose, are the following: "Concedis justas leges et consuetudines esse tenendas, et promittis per te eas esse protegendas, et ad honorem Dei corroborandas, _quas vulgus elegerit_, secundum vires tuas?" It was maintained by one side that _elegerit_ should be construed in the future tense, while the other contended for the præterperfect. But even if the former were right, as to the point of Latin construction, though consuetudines seems naturally to imply a past tense, I should by no means admit the strange inference that the king was bound to sanction all laws proposed to him. His own assent is involved in the expression, "quas vulgus elegerit," which was introduced, on the hypothesis of the word being in the future tense, as a security against his legislation without consent of the people in parliament. The English coronation oath, which Charles had taken, excludes the future: Sir, will you grant to hold and keep the laws and rightful customs, _which the commonalty of this your kingdom have_? [230] See what is said as to this by P. Orleans, iii. 87, and by Madame de Motteville, i. 268. Her intended journey to Spa, in July 1641, which was given up on the remonstrance of parliament, is highly suspicious. The house, it appears, had received even then information that the Crown jewels were to be carried away. Nalson, ii. 391. [231] The impeachments of Lord Finch and of Judge Berkeley for high treason are at least as little justifiable in point of law as that of Strafford. Yet, because the former of these was moved by Lord Falkland, Clarendon is so far from objecting to it, that he imputes as a fault to the parliamentary leaders their lukewarmness in the prosecution, and insinuates that they were desirous to save Finch. See especially the new edition of Clarendon, vol. i. Appendix. But they might reasonably think that Finch was not of sufficient importance to divert their attention from the grand apostate, whom they were determined to punish. Finch fled to Holland; so that then it would have been absurd to take much trouble about his impeachment: Falkland, however, opened it to the Lords, 14 Jan. 1641, in a speech containing full as many extravagant propositions as any of St. John's. Berkeley, besides his forwardness about ship-money, had been notorious for subserviency to the prerogative. The house sent the usher of the black rod to the court of King's Bench, while the judges were sitting, who took him away to prison; "which struck a great terror," says Whitelock, "in the rest of his brethren then sitting in Westminster Hall, and in all his profession." The impeachment against Berkeley for high treason ended in his paying a fine of £10,000. But what appears strange and unjustifiable is, that the houses suffered him to sit for some terms as a judge, with this impeachment over his head. The only excuse for this is, that there were a great many vacancies on that bench. [232] Journals, Aug. 30 and Nov. 9. It may be urged in behalf of these ordinances, that the king had gone into Scotland against the wish of the two houses, and after refusing to appoint a _custos regni_ at their request. But if the exigency of the case might justify, under those circumstances, the assumption of an irregular power, it ought to have been limited to the period of the sovereign's absence. [233] _Parl. Hist._ 678, _et alibi_; Journals, _passim_. Clarendon, i. 475, says this began to pass all bounds after the act rendering them indissoluble. "It had never," he says, "been attempted before this parliament to commit any one to prison, except for some apparent breach of privilege, such as the arrest of one of their members, or the like." Instances of this, however, had occurred before, of which I have mentioned in another place the grossest, that of Floyd, in 1621. The Lords, in March 1642, condemned one Sandford, a tailor, for cursing the parliament, to be kept at work in Bridewell during his life, besides some minor inflictions. Rushworth. A strange order was made by the Commons, Dec. 10, 1641, that, Sir William Earl having given information of some dangerous words spoken by certain persons, the speaker shall issue a warrant to apprehend _such persons as Sir William Earl should point out_. [234] The entry of this in the journals is too characteristic of the tone assumed in the Commons to be omitted. "This committee (after naming some of the warmest men) is appointed to prepare heads for a conference with the Lords, and to acquaint them what bills this house hath passed and sent up to their lordships, which much concern the safety of the kingdom, but have had no consent of their lordships unto them; and that, this house being the representative body of the whole kingdom, and their lordships being but as particular persons, and coming to parliament in a particular capacity, that if they shall not be pleased to consent to the passing of those acts and others necessary to the preservation and safety of the kingdom, that then this house, together with such of the lords that are more sensible of the safety of the kingdom, may join together and represent the same unto his majesty." This was on December 3, 1641, before the argument from necessity could be pretended, and evidently contains the germ of the resolution of February 1649, that the House of Lords was useless. The resolution was moved by Mr. Pym; and on Mr. Godolphin's objecting, very sensibly, that if they went to the king with the lesser part of the Lords, the greater part of the Lords might go to the king with the lesser part of them, he was commanded to withdraw (Verney MS.); and an order appears on the journals, that on Tuesday next the house would take into consideration the offence now given by words spoken by Mr. Godolphin. Nothing further, however, seems to have taken place. [235] This was carried Jan. 27, 1642, by a majority of 223 to 123, the largest number, I think, that voted for any question during the parliament. Richmond was an eager courtier, and perhaps an enemy to the constitution, which may account for the unusual majority in favour of his impeachment, but cannot justify it. He had merely said, on a proposition to adjourn, "Why should we not adjourn for six months?" [236] _Parl. Hist._ 1147, 1150, 1188; Clarendon, ii. 284, 346. [237] Clarendon, 322. Among other petitions presented at this time, the noble author inserts one from the porters of London. Mr. Brodie asserts of this, that "it is nowhere to be found or alluded to, so far as I recollect, except in Clarendon's _History_; and I have no hesitation in pronouncing it a forgery by that author, to disgrace the petitions which so galled him and his party. The journals of the Commons give an account of every petition; and I have gone over them _with the utmost care_, in order to ascertain whether such a petition ever was presented, and yet cannot discover a trace of it."--iii. 306. This writer is much too precipitate and passionate. No sensible man will believe Clarendon to have committed so foolish and useless a forgery; and as to Mr. B.'s diligent perusal of the journals, this petition is fully noticed, though not inserted at length, on the 3rd of February. [238] Nalson, ii. 234, 245. [239] The bishops had so few friends in the House of Commons, that in the debate arising out of this protest, all agreed that they should be charged with treason, except one gentleman, who said he thought them only mad, and proposed that they should be sent to Bedlam instead of the Tower. Even Clarendon bears rather hard on the protest; chiefly, as is evident, because it originated with Williams. In fact, several of these prelates had not courage to stand by what they had done, and made trivial apologies. _Parl. Hist._ 996. Whether the violence was such as to form a complete justification for their absenting themselves, is a question of fact which we cannot well determine. Three bishops continued at their posts, and voted against the bill for removing them from the House of Lords. See a passage from Hall's "Hard Measure," in Wordsworth's _Eccles. Biogr._ v. 317. The king always entertained a notion that this act was null in itself; and in one of his proclamations from York, not very judiciously declares his intention to preserve the privileges of the _three_ estates of parliament. The Lords admitted the twelve bishops to bail; but, with their usual pusillanimity, recommitted them on the Commons' expostulation. _Parl. Hist._ 1092. [240] May, p. 187, insinuates that the civil war should have been prevented by more vigorous measures on the part of the parliament. And it might probably have been in their power to have secured the king's person before he reached York. But the majority were not ripe for such violent proceedings. [241] These words are ascribed to Lord Chatham, in a speech of Mr. Grattan, according to Lord John Russell, in his _Essay on the History of the English Government_, p. 55. [242] Clarendon has several remarkable passages, chiefly towards the end of the fifth book of his _History_, on the slowness and timidity of the royalist party before the commencement of the civil war. The peers at York, forming, in fact, a majority of the upper house, for there were nearly forty of them, displayed much of this. Want of political courage was a characteristic of our aristocracy at this period, bravely as many behaved in the field. But I have no doubt that a real jealousy of the king's intentions had a considerable effect. They put forth a declaration, signed by all their hands, on the 15th of June 1642, professing before God their full persuasion that the king had no design to make war on the parliament, and that they saw no colour of preparations or counsels that might reasonably beget a belief of any such designs; but that all his endeavours tended to the settlement of the protestant religion, the just privileges of parliament, the liberty of the subject, etc. This was an ill-judged, and even absurd piece of hypocrisy, calculated to degrade the subscribers; since the design of raising troops was hardly concealed, and every part of the king's conduct since his arrival at York manifested it. The commission of array, authorising certain persons in each county to raise troops, was in fact issued immediately after this declaration. It is rather mortifying to find Lord Falkland's name, not to mention others, in this list; but he probably felt it impossible to refuse his signature, without throwing discredit on the king; and no man engaged in a party ever did, or ever can, act with absolute sincerity; or at least he can be of no use to his friends, if he does adhere to this uncompromising principle. The commission of array was ill-received by many of the king's friends, as not being conformable to law. Clarendon, iii. 91. Certainly it was not so; but it was justifiable as the means of opposing the parliament's ordinance for the militia, at least equally illegal. This, however, shows very strongly the cautious and constitutional temper of many of the royalists, who could demur about the legality of a measure of necessity, since no other method of raising an army would have been free from similar exception. The same reluctance to enter on the war was displayed in the propositions for peace, which the king, in consequence of his council's importunity, sent to the two houses through the Earl of Southampton, just before he raised his standard at Nottingham. [243] According to a list made by the House of Lords, May 25, 1642, the peers with the king at York were thirty-two; those who remained at Westminster, forty-two. But of the latter, more than ten joined the others before the commencement of the war, and five or six afterwards; two or three of those at York returned. During the war there were at the outside thirty peers who sat in the parliament. [244] _Life of Clarendon_, p. 56. CHAPTER X FROM THE BREAKING OUT OF THE CIVIL WAR TO THE RESTORATION PART I Factions that, while still under some restraint from the forms at least of constitutional law, excite our disgust by their selfishness or intemperance, are little likely to redeem their honour when their animosities have kindled civil warfare. If it were difficult for an upright man to enlist with an entire willingness under either the royalist or the parliamentarian banner, at the commencement of hostilities in 1642, it became far less easy for him to desire the complete success of one or the other cause, as advancing time displayed the faults of both in darker colours than they had previously worn. Of the parliament--to begin with the more powerful and victorious party--it may be said, I think, with not greater severity than truth, that scarce two or three public acts of justice, humanity, or generosity, and very few of political wisdom or courage, are recorded of them from their quarrel with the king to their expulsion by Cromwell. Notwithstanding the secession from parliament before the commencement of the war, of nearly all the peers who could be reckoned on the king's side, and of a pretty considerable part of the Commons, there still continued to sit at Westminster many sensible and moderate persons, who thought that they could not serve their country better than by remaining at their posts, and laboured continually to bring about a pacification by mutual concessions. Such were the Earls of Northumberland, Holland, Lincoln, and Bedford, among the peers; Selden, Whitelock, Hollis, Waller, Pierrepont, and Rudyard, in the Commons. These however would have formed but a very ineffectual minority, if the war itself, for at least twelve months, had not taken a turn little expected by the parliament. The hard usage Charles seemed to endure in so many encroachments on his ancient prerogative awakened the sympathies of a generous aristocracy, accustomed to respect the established laws, and to love monarchy, as they did their own liberties, on the score of its prescriptive title; averse also to the rude and morose genius of puritanism, and not a little jealous of those upstart demagogues who already threatened to subvert the graduated pyramid of English society. Their zeal placed the king at the head of a far more considerable army than either party had anticipated.[245] In the first battle, that of Edgehill, though he did not remain master of the field, yet all the military consequences were evidently in his favour.[246] In the ensuing campaign of 1643, the advantage was for several months entirely his own; nor could he be said to be a loser on the whole result, notwithstanding some reverses that accompanied the autumn. A line drawn from Hull to Southampton would suggest no very incorrect idea of the two parties, considered as to their military occupation of the kingdom, at the beginning of September 1643; for if the parliament, by the possession of Glocester and Plymouth, and by some force they had on foot in Cheshire, and other midland parts, kept their ground on the west of this line, this was nearly compensated by the Earl of Newcastle's possession at that time of most of Lincolnshire, which lay within it. Such was the temporary effect, partly indeed of what may be called the fortune of war, but rather of the zeal and spirit of the royalists, and of their advantage in a more numerous and intrepid cavalry.[247] It has been frequently supposed, and doubtless seems to have been a prevailing opinion at the time, that if the king, instead of sitting down before Glocester at the end of August, had marched upon London, combining his operations with Newcastle's powerful army, he would have brought the war to a triumphant conclusion.[248] In these matters men judge principally by the event. Whether it would have been prudent in Newcastle to have left behind him the strong garrison of Hull under Fairfax, and an unbroken though inferior force, commanded by Lord Willoughby and Cromwell in Lincolnshire, I must leave to military critics; suspecting however that he would have found it difficult to draw away the Yorkshire gentry and yeomanry, forming the strength of his army, from their unprotected homes. Yet the parliamentary forces were certainly, at no period of the war, so deficient in numbers, discipline, and confidence; and it may well be thought that the king's want of permanent resources, with his knowledge of the timidity and disunion which prevailed in the capital, rendered the boldest and most forward game his true policy. _Efforts by the moderate party for peace._--It was natural that the moderate party in parliament should acquire strength by the untoward fortune of its arms. Their aim, as well as that of the constitutional royalists, was a speedy pacification; neither party so much considering what terms might be most advantageous to their own side, as which way the nation might be freed from an incalculably protracted calamity. On the king's advance to Colnbrook in November 1642, the two houses made an overture for negotiation, on which he expressed his readiness to enter. But, during the parley, some of his troops advanced to Brentford, and a sharp action took place in that town. The parliament affected to consider this such a mark of perfidy and blood-thirstiness as justified them in breaking off the treaty; a step to which they were doubtless more inclined by the king's retreat, and their discovery that his army was less formidable than they had apprehended. It is very probable, or rather certain, even from Clarendon's account, that many about the king, if not himself, were sufficiently indisposed to negotiate; yet, as no cessation of arms had been agreed upon, or even proposed, he cannot be said to have waived the unquestionable right of every belligerent, to obtain all possible advantage by arms, in order to treat for peace in a more favourable position. But, as mankind are seldom reasonable in admitting such maxims against themselves, he seems to have injured his reputation by this affair of Brentford. _Treaty at Oxford._--A treaty, from which many ventured to hope much, was begun early in the next spring at Oxford, after a struggle which had lasted through the winter within the walls of parliament.[249] But though the party of Pym and Hampden at Westminster were not able to prevent negotiation against the strong bent of the House of Lords, and even of the city, which had been taught to lower its tone by the interruption of trade, and especially of the supply of coals from Newcastle; yet they were powerful enough to make the houses insist on terms not less unreasonable than those contained in their nineteen propositions the year before.[250] The king could not be justly expected to comply with these; but, had they been more moderate, or if the parliament would have in some measure receded from them, we have every reason to conclude, both by the nature of the terms he proposed in return, and by the positive testimony of Clarendon, that he would not have come sincerely into any scheme of immediate accommodation. The reason assigned by that author for the unwillingness of Charles to agree on a cessation of arms during the negotiation, though it had been originally suggested by himself (and which reason would have been still more applicable to a treaty of peace), is one so strange that it requires all the authority of one very unwilling to confess any weakness or duplicity of the king to be believed. He had made a solemn promise to the queen on her departure for Holland the year before, "that he would receive no person who had disserved him into any favour or trust, without her privity and consent; and that, as she had undergone many reproaches and calumnies at the entrance into the war, so he would never make any peace but by her interposition and mediation, that the kingdom might receive that blessing only from her."[251] Let this be called, as the reader may please, the extravagance of romantic affection, or rather the height of pusillanimous and criminal subserviency, we cannot surely help acknowledging that this one marked weakness in Charles's character, had there been nothing else to object, rendered the return of cordial harmony between himself and his people scarce within the bounds of natural possibility. In the equally balanced condition of both forces at this particular juncture, it may seem that some compromise on the great question of the militia was not impracticable, had the king been truly desirous of accommodation; for it is only just to remember that the parliament had good reason to demand some security for themselves, when he had so peremptorily excluded several persons from amnesty. Both parties, in truth, were standing out for more than, either according to their situation as belligerents, or even perhaps according to the principles of our constitution, they could reasonably claim; the two houses having evidently no direct right to order the military force, nor the king, on the other hand, having a clear prerogative to keep on foot an army which is not easily distinguishable from a militia without consent of parliament. The most reasonable course apparently would have been for the one to have waived a dangerous and disputed authority, and the other to have desisted from a still more unconstitutional pretension; which was done by the bill of rights in 1689. The kingdom might have well dispensed, in that age, with any military organisation; and this seems to have been the desire of Whitelock, and probably of other reasonable men. But unhappily when swords are once drawn in civil war, they are seldom sheathed till experience has shown which blade is the sharper. _Impeachment of the queen._--Though this particular instance of the queen's prodigious ascendancy over her husband remained secret till the publication of Lord Clarendon's life, it was in general well known, and put the leaders of the Commons on a remarkable stroke of policy, in order to prevent the renewal of negotiations. On her landing in the north, with a supply of money and arms, as well as with a few troops she had collected in Holland, they carried up to the Lords an impeachment for high treason against her. This measure (so obnoxious was Henrietta) met with a less vigorous opposition than might be expected, though the moderate party was still in considerable force.[252] It was not only an insolence, which a king, less uxorious than Charles, could never pardon; but a violation of the primary laws and moral sentiments that preserve human society, to which the queen was acting in obedience. Scarce any proceeding of the long parliament seems more odious than this; whether designed by way of intimidation, or to exasperate the king, and render the composure of existing differences more impracticable. _Waller's plot._--The enemies of peace were strengthened by the discovery of what is usually called Waller's plot, a scheme for making a strong demonstration of the royalist party in London, wherein several members of both houses appear to have been more or less concerned. Upon the detection of this conspiracy, the two houses of parliament took an oath not to lay down arms, so long as the papists now in arms should be protected from the justice of parliament; and never to adhere to, or willingly assist, the forces raised by the king, without the consent of both houses. Every individual member of the Peers and Commons took this oath; some of them being then in secret concert with the king, and others entertaining intentions, as their conduct very soon evinced, of deserting to his side.[253] Such was the commencement of a system of perjury, which lasted for many years, and belies the pretended religion of that hypocritical age. But we may always look for this effect from oppressive power, and the imposition of political tests. The king was now in a course of success, which made him rather hearken to the sanguine courtiers of Oxford, where, according to the invariable character of an exiled faction, every advantage or reverse brought on a disproportionate exultation or despondency, than to those better counsellors who knew the precariousness of his good fortune. He published a declaration, wherein he denied the two houses at Westminster the name of a parliament; which he could no more take from them, after the bill he had passed, than they could deprive him of his royal title, and by refusing which he shut up all avenues to an equal peace.[254] This was soon followed by so extraordinary a political error as manifests the king's want of judgment, and the utter improbability that any event of the war could have restored to England the blessings of liberty and repose. _Secession of some peers to the king's quarters._--Three peers of the moderate party, the Earls of Holland, Bedford, and Clare, dissatisfied with the preponderance of a violent faction in the Commons, left their places at Westminster, and came into the king's quarters. It might be presumed from general policy as well as from his constant declarations of a desire to restore peace, that they would have been received with such studied courtesy as might serve to reconcile to their own mind a step which, when taken with the best intentions, is always equivocal and humiliating. There was great reason to believe that the Earl of Northumberland, not only the first peer then in England as to family and fortune, but a man highly esteemed for prudence, was only waiting to observe the reception of those who went first to Oxford, before he followed their steps. There were even well-founded hopes of the Earl of Essex, who, though incapable of betraying his trust as commander of the parliament's army, was both from personal and public motives disinclined to the war-party in the Commons. There was much to expect from all those who had secretly wished well to the king's cause, and from those whom it is madness to reject or insult, the followers of fortune, the worshippers of power, without whom neither fortune nor power can long subsist. Yet such was the state of Charles's council-board at Oxford that some were for arresting these proselyte earls; and it was carried with difficulty, after they had been detained some time at Wallingford, that they might come to the court. But they met there with so many and such general slights that, though they fought in the king's army at Newbury, they found their position intolerably ignominious; and after about three months, returned to the parliament with many expressions of repentance, and strong testimonies to the evil counsels of Oxford.[255] The king seems to have been rather passive in this strange piece of impolicy, but by no means to have taken the line that became him, of repressing the selfish jealousy or petty revengefulness of his court. If the Earl of Holland was a man, whom both he and the queen, on the score of his great obligations to them, might justly reproach with some ingratitude, there was nothing to be objected against the other two, save their continuance at Westminster, and compliance in votes that he disliked. And if this were to be visited by neglect and discountenance, there could, it was plain, be no reconciliation between him and the parliament. For who could imagine that men of courage and honour, while possessed of any sort of strength and any hopes of preserving it, would put up with a mere indemnity for their lives and fortunes, subject to be reckoned as pardoned traitors who might thank the king for his clemency, without presuming to his favour? Charles must have seen his superiority consolidated by repeated victories, before he could prudently assume this tone of conquest. Inferior in substantial force, notwithstanding his transient advantages, to the parliament, he had no probability of regaining his station, but by defections from their banner; and these, with incredible folly, he seemed to decline; far unlike his illustrious father-in-law, who had cordially embraced the leaders of a rebellion much more implacable than the present. For the Oxford counsellors and courtiers who set themselves against the reception of the three earls, besides their particular animosity towards the Earl of Holland,[256] and that general feeling of disdain and distrust which, as Clarendon finely observes, seems by nature attached to all desertion and inconstancy, whether in politics or religion (even among those who reap the advantage of it, and when founded upon what they ought to reckon the soundest reasons), there seems grounds to suspect that they had deeper and more selfish designs than they cared to manifest. They had long beset the king with solicitations for titles, offices, pensions; but these were necessarily too limited for their cravings. They had sustained, many of them, great losses; they had performed real or pretended services for the king; and it is probable that they looked to a confiscation of enemies' property for their indemnification or reward. This would account for an averseness to all overtures for peace, as decided, at this period, among a great body of the cavaliers as it was with the factions of Pym or Vane. _The anti-pacific party gain the ascendant at Westminster._--These factions were now become finally predominant at Westminster. On the news that Prince Rupert had taken Bristol, the last and most serious loss that the parliament sustained, the Lords agreed on propositions for peace to be sent to the king, of an unusually moderate tone.[257] The Commons, on a division of 94 to 65, determined to take them into consideration; but the lord mayor Pennington having procured an address of the city against peace, backed by a tumultuous mob, a small majority was obtained against concurring with the other house.[258] It was after this that the Lords above-mentioned, as well as many of the Commons, quitted Westminster. The prevailing party had no thoughts of peace, till they could dictate its conditions. Through Essex's great success in raising the siege of Glocester, the most distinguished exploit in his military life, and the battle of Newbury wherein the advantage was certainly theirs, they became secure against any important attack on the king's side, the war turning again to endless sieges and skirmishes of partisans. And they now adopted two important measures, one of which gave a new complexion to the quarrel. Littleton, the lord keeper of the great seal, had carried it away with him to the king. This of itself put a stop to the regular course of the executive government, and to the administration of justice within the parliament's quarters. No employments could be filled up, no writs for election of members issued, no commissions for holding the assizes completed without the indispensable formality of affixing the great seal. It must surely excite a smile, that men who had raised armies, and fought battles against the king, should be perplexed how to get over so technical a difficulty. But the great seal in the eyes of English lawyers, has a sort of mysterious efficacy, and passes for the depository of royal authority in a higher degree than the person of the king. _The parliament makes a new great seal._--The Commons prepared an ordinance in July for making a new great seal, in which the Lords could not be induced to concur till October. The royalists, and the king himself, exclaimed against this as the most audacious treason, though it may be reckoned a very natural consequence of the state in which the parliament was placed; and in the subsequent negotiations, it was one of the minor points in dispute whether he should authorise the proceedings under the great seal of the two houses, or they consent to sanction what had been done by virtue of his own. The second measure of parliament was of greater moment and more fatal consequences. I have already mentioned the stress laid by the bigoted Scots presbyterians on the establishment of their own church government in England. Chiefly perhaps to conciliate this people, the House of Commons had entertained the bill for abolishing episcopacy; and this had formed a part of the nineteen propositions that both houses tendered to the king.[259] After the action at Brentford they concurred in a declaration to be delivered to the Scots commissioners, resident in London, wherein, after setting forth the malice of the prelatical clergy in hindering the reformation of ecclesiastical government, and professing their own desire willingly and affectionately to pursue a closer union in such matters between the two nations, they request their brethren of Scotland to raise such forces as they should judge sufficient for the securing the peace of their own borders against ill-affected persons there; as likewise, to assist them in suppressing the army of papists and foreigners, which, it was expected, would shortly be on foot in England.[260] This overture produced for many months no sensible effect. The Scots, with all their national wariness, suspected that, in spite of these general declarations in favour of their church polity, it was not much at heart with most of the parliament, and might be given up in a treaty, if the king would concede some other matters in dispute. Accordingly, when the progress of his arms, especially in the north, during the ensuing summer, compelled the parliament to call in a more pressing manner, and by a special embassy, for their aid, they resolved to bind them down by such a compact as no wavering policy should ever rescind. They insisted therefore on the adoption of the solemn league and covenant, founded on a similar association of their own, five years before, through which they had successfully resisted the king, and overthrown the prelatic government. The covenant consisted in an oath to be subscribed by all sorts of persons in both kingdoms, whereby they bound themselves to preserve the reformed religion in the church of Scotland, in doctrine, worship, discipline, and government, according to the word of God and practice of the best reformed churches; and to endeavour to bring the churches of God in the three kingdoms to the nearest conjunction and uniformity in religion, confession of faith, form of church-government, directory for worship, and catechising: to endeavour, without respect of persons, the extirpation of popery, prelacy (that is, church government by archbishops, bishops, their chancellors and commissaries, deans and chapters, archdeacons, and all other ecclesiastical officers depending on that hierarchy), and whatsoever should be found contrary to sound doctrine and the power of godliness to preserve the rights and privileges of the parliaments, and the liberties of the kingdoms, and the king's person and authority, in the preservation and defence of the true religion and liberties of the kingdoms: to endeavour the discovery of incendiaries and malignants, who hinder the reformation of religion, and divide the king from his people, that they may be brought to punishment: finally, to assist and defend all such as should enter into this covenant, and not suffer themselves to be withdrawn from it, whether to revolt to the opposite party, or to give in to a detestable indifference or neutrality. In conformity to the strict alliance thus established between the two kingdoms, the Scots commissioners at Westminster were intrusted, jointly with a committee of both houses, with very extensive powers to administer the public affairs.[261] _The parliament subscribes to the covenant._--Every member of the Commons who remained at Westminster, to the number of 228, or perhaps more, and from 20 to 30 Peers that formed their upper house,[262] subscribed this deliberate pledge to overturn the established church; many of them with extreme reluctance, both from a dislike of the innovation, and from a consciousness that it raised a most formidable obstacle to the restoration of peace; but with a secret reserve, for which some want of precision in the language of this covenant (purposely introduced by Vane, as is said, to shelter his own schemes) afforded them a sort of apology.[263] It was next imposed on all civil and military officers, and upon all the beneficed clergy.[264] A severe persecution fell on the faithful children of the Anglican church. Many had already been sequestered from their livings, or even subjected to imprisonment, by the parliamentary committee for scandalous ministers, or by subordinate committees of the same kind set up in each county within their quarters; sometimes on the score of immoralities or false doctrine, more frequently for what they termed malignity, or attachment to the king and his party.[265] Yet wary men who meddled not with politics, might hope to elude this inquisition. But the covenant, imposed as a general test, drove out all who were too conscientious to pledge themselves by a solemn appeal to the Deity to resist the polity which they generally believed to be of his institution. What number of the clergy were ejected (most of them but for refusing the covenant, and for no moral offence or imputed superstition) it is impossible to ascertain. Walker, in his _Sufferings of the Clergy_, a folio volume published in the latter end of Anne's reign, with all the virulence and partiality of the high-church faction in that age, endeavoured to support those who had reckoned it at 8000; a palpable over-statement upon his own showing, for he cannot produce near 2000 names, after a most diligent investigation. Neal, however, admits 1600, probably more than one-fifth of the beneficed ministers in the kingdom.[266] The biographical collections furnish a pretty copious martyrology of men the most distinguished by their learning and virtues in that age. The remorseless and indiscriminate bigotry of presbyterianism might boast that it had heaped disgrace on Walton, and driven Lydiat to beggary; that it trampled on the old age of Hales, and embittered with insult the dying moments of Chillingworth. _Impeachment and execution of Laud._--But the most unjustifiable act of these zealots, and one of the greatest reproaches of the long parliament, was the death of Archbishop Laud. In the first days of the session, while the fall of Strafford struck every one with astonishment, the Commons had carried up an impeachment against him for high treason, in fourteen articles of charge; and he had lain ever since in the Tower, his revenues, and even private estate sequestered, and in great indigence. After nearly three years' neglect, specific articles were exhibited against him in October 1643, but not proceeded on with vigour till December 1644; when, for whatever reason, a determination was taken to pursue this unfortunate prelate to death. The charges against him, which Wild, Maynard, and other managers of the impeachment, were to aggravate into treason, related partly to those papistical innovations which had nothing of a political character about them, partly of the violent proceedings in the star-chamber and high-commission courts, wherein Laud was very prominent as a counsellor, but certainly without any greater legal responsibility than fell on many others. He defended himself, not always prudently or satisfactorily, but with courage and ability; never receding from his magnificent notions of spiritual power, but endeavouring to shift the blame of the sentences pronounced by the council on those who concurred with him. The imputation of popery he repelled by a list of the converts he had made; but the word was equivocal, and he could not deny the difference between his protestantism and that of our reformation. Nothing could be more monstrous than the allegation of treason in this case. The judges, on a reference by the Lords, gave it to be understood, in their timid way, that the charges contained no legal treason.[267] But, the Commons having changed their impeachment into an ordinance for his execution, the Peers were pusillanimous enough to comply. It is said by Clarendon that only seven Lords were in the house on this occasion: but the Journals unfortunately bear witness to the presence of twenty.[268] Laud had amply merited punishment for his tyrannical abuse of power; but his execution at the age of seventy, without the slightest pretence of political necessity, was a far more unjustifiable instance of it than any that was alleged against him. _Decline of the king's affairs in 1644._--Pursuant to the before-mentioned treaty, the Scots army of 21,000 men marched into England in January 1644. This was a very serious accession to Charles's difficulties, already sufficient to dissipate all hopes of final triumph, except in the most sanguine minds. His successes, in fact, had been rather such as to surprise well-judging men than to make them expect any more favourable termination of the war than by a fair treaty. From the beginning it may be said that the yeomanry and trading classes of towns were generally hostile to the king's side, even in those counties which were in his military occupation; except in a few, such as Cornwall, Worcester, Salop, and most of Wales, where the prevailing sentiment was chiefly royalist;[269] and this disaffection was prodigiously increased through the licence of his ill-paid and ill-disciplined army. On the other hand, the gentry were, in a great majority, attached to his cause, even in the parts of England which lay subject to the parliament. But he was never able to make any durable impression on what were called the associated counties, extending from Norfolk to Sussex inclusively, within which no rising could be attempted with any effect:[270] while, on the other hand, the parliament possessed several garrisons, and kept up considerable forces in that larger portion of the kingdom where he might be reckoned superior. Their resources were far greater; and the taxes imposed by them, though exceedingly heavy, more regularly paid, and less ruinous to the people, than the sudden exactions, half plunder, half contribution, of the ravenous cavaliers. The king lost ground during the winter. He had built hopes on bringing over troops from Ireland; for the sake of which he made a truce, then called the cessation, with the rebel catholics. But this reinforcement having been beaten and dispersed by Fairfax at Namptwich, he had the mortification of finding that this scheme had much increased his own unpopularity, and the distrust entertained of him even by his adherents, without the smallest advantage. The next campaign was marked by the great defeat of Rupert and Newcastle at Marston Moor, and the loss of the north of England; a blow so terrible as must have brought on his speedy ruin, if it had not been in some degree mitigated by his strange and unexpected success over Essex in the west, and by the tardiness of the Scots in making use of their victory. Upon the result of the campaign of 1644, the king's affairs were in such bad condition that nothing less than a series of victories could have reinstated them; yet not so totally ruined as to hold out much prospect of an approaching termination to the people's calamities. _Factions at Oxford._--There had been, from the very commencement of the war, all that distraction in the king's councils at Oxford, and all those bickerings and heart-burnings among his adherents, which naturally belong to men embarked in a dangerous cause with different motives and different views. The military men, some of whom had served with the Swedes in Germany, acknowledged no laws but those of war; and could not understand that, either in annoying the enemy or providing for themselves, they were to acknowledge any restraints of the civil power. The lawyers, on the other hand, and the whole constitutional party laboured to keep up, in the midst of arms, the appearances at least of legal justice, and that favourite maxim of Englishmen, the supremacy of civil over military authority, rather more strictly perhaps than the nature of their actual circumstances would admit. At the head of the former party stood the king's two nephews, Rupert and Maurice, the younger sons of the late unfortunate elector palatine, soldiers of fortune (as we may truly call them), of rude and imperious characters, avowedly despising the council and the common law, and supported by Charles, with all his injudiciousness and incapacity for affairs, against the greatest men of the kingdom. Another very powerful and obnoxious faction was that of the catholics, proud of their services and sacrifices, confident in the queen's protection, and looking at least to a full toleration as their just reward. They were the natural enemies of peace, and little less hated at Oxford than at Westminster.[271] _Royalist lords and commoners summoned to Oxford._--At the beginning of the winter of 1643 the king took the remarkable step of summoning the peers and commoners of his party to meet in parliament at Oxford. This was evidently suggested by the constitutionalists with the intention of obtaining a supply by more regular methods than forced contribution, and of opposing a barrier to the military and popish interests.[272] Whether it were equally calculated to further the king's cause may admit of some doubt. The royalist convention indeed, which name it ought rather to have taken than that of parliament, met in considerable strength at Oxford. Forty-three peers, and one hundred and eighteen commoners, subscribed a letter to the Earl of Essex, expressing their anxiety for a treaty of peace; twenty-nine of the former, and fifty-seven of the latter, it is said, being then absent on the king's service, or other occasions.[273] Such a display of numbers, nearly double in one house, and nearly half in the other, of those who remained at Westminster, might have an effect on the nation's prejudices, and at least redeem the king from the charge of standing singly against his parliament. But they came in no spirit of fervid loyalty, rather distrustful of the king, especially on the score of religion, averse to some whom he had injudiciously raised to power, such as Digby and Cottington, and so eager for pacification as not perhaps to have been unwilling to purchase it by greater concessions than he could prudently make.[274] Peace however was by no means brought nearer by their meeting; the parliament, jealous and alarmed at it, would never recognise their existence; and were so provoked at their voting the Lords and Commons at Westminster guilty of treason, that, if we believe a writer of high authority, the two houses unanimously passed a vote on Essex's motion, summoning the king to appear by a certain day.[275] But the Scots commissioners had force enough to turn aside such violent suggestions, and ultimately obtained the concurrence of both houses in propositions for a treaty.[276] They had begun to find themselves less likely to sway the councils of Westminster than they had expected, and dreaded the rising ascendancy of Cromwell. The treaty was opened at Uxbridge in January 1645. But neither the king nor his adversaries entered on it with minds sincerely bent on peace: they, on the one hand, resolute not to swerve from the utmost rigour of a conqueror's terms, without having conquered; and he, though more secretly, cherishing illusive hopes of a more triumphant restoration to power than any treaty could be expected to effect.[277] The three leading topics of discussion among the negotiators at Uxbridge were, the church, the militia, and the state of Ireland. Bound by their unhappy covenant, and watched by their Scots colleagues, the English commissioners on the parliament side demanded the complete establishment of a presbyterian polity, and the substitution of what was called the directory for the Anglican liturgy. Upon this head there was little prospect of a union. The king had deeply imbibed the tenets of Andrews and Laud, believing an episcopal government indispensably necessary to the valid administration of the sacraments, and the very existence of a christian church. The Scots, and a portion of the English clergy, were equally confident that their presbyterian form was established by the apostles as a divine model, from which it was unlawful to depart.[278] Though most of the laity in this kingdom entertained less narrow opinions, the parliamentary commissioners thought the king ought rather to concede such a point than themselves, especially as his former consent to the abolition of episcopacy in Scotland weakened a good deal the force of his plea of conscience; while the royalists, even could they have persuaded their master, thought episcopacy, though not absolutely of divine right (a notion which they left to the churchmen), yet so highly beneficial to religion, and so important to the monarchy, that nothing less than extreme necessity, or at least the prospect of a signal advantage, could justify its abandonment. They offered however what in an earlier stage of their dissensions would have satisfied almost every man, that limited scheme of episcopal hierarchy, above-mentioned as approved by Usher, rendering the bishop among his presbyters much like the king in parliament, not free to exercise his jurisdiction, nor to confer orders without their consent, and offered to leave all ceremonies to the minister's discretion. Such a compromise would probably have pleased the English nation, averse to nothing in their established church except its abuses; but the parliamentary negotiators would not so much as enter into discussion upon it.[279] They were hardly less unyielding on the subject of the militia. They began with a demand of naming all the commanders by sea and land, including the lord lieutenant of Ireland and all governors of garrisons, for an unlimited time. The king, though not very willingly, proposed that the command should be vested in twenty persons, half to be named by himself, half by the parliament, for the term of three years, which he afterwards extended to seven; at the expiration of which time it should revert to the Crown. But the utmost concession that could be obtained from the other side was to limit their exclusive possession of this power to seven years, leaving the matter open for an ulterior arrangement by act of parliament at their termination.[280] Even if this treaty had been conducted between two belligerent states, whom rivalry or ambition often excite to press every demand which superior power can extort from weakness, there yet was nothing in the condition of the king's affairs which should compel him thus to pass under the yoke, and enter his capital as a prisoner. But we may also remark that, according to the great principle, that the English constitution, in all its component parts, was to be maintained by both sides in this contest, the question for parliament was not what their military advantages or resources for war entitled them to ask, but what was required for the due balance of power under a limited monarchy. They could rightly demand no further concession from the king than was indispensable for their own and the people's security; and I leave any one who is tolerably acquainted with the state of England at the beginning of 1645, to decide whether their privileges and the public liberties incurred a greater risk, by such an equal partition of power over the sword, as the king proposed, than his prerogative and personal freedom would have encountered by abandoning it altogether to their discretion. I am far from thinking that the acceptance of the king's propositions at Uxbridge would have restored tranquillity to England. He would still have repined at the limitations of monarchy, and others would have conspired against its existence. But of the various consequences which we may picture to ourselves as capable of resulting from a pacification, that which appears to me the least likely is, that Charles should have re-established that arbitrary power which he had exercised in the earlier period of his reign. Whence, in fact, was he to look for assistance? Was it with such creatures of a court as Jermyn or Ashburnham, or with a worn-out veteran of office, like Cottington, or a rash adventurer, like Digby, that he could outwit Vane, or overawe Cromwell, or silence the press and the pulpit, or strike with panic the stern puritan and the confident fanatic? Some there were, beyond question, both soldiers and courtiers, who hated the very name of a limited monarchy, and murmured at the constitutional language which the king, from the time he made use of the pens of Hyde and Falkland, had systematically employed in his public declarations.[281] But it is as certain that the great majority of his Oxford parliament, and of those upon whom he must have depended, either in the field or in council, were apprehensive of any victory that might render him absolute, as that Essex and Manchester were unwilling to conquer at the expense of the constitution.[282] The catholics indeed, generally speaking, would have gone great lengths in asserting his authority. Nor is this any reproach to that body, by no means naturally less attached to their country and its liberties than other Englishmen, but driven by an unjust persecution to see their only hope of emancipation in the nation's servitude. They could not be expected to sympathise in that patriotism of the seventeenth century, which, if it poured warmth and radiance on the protestant, was to them as a devouring fire. But the king could have made no use of the catholics as a distinct body for any political purpose, without uniting all other parties against him. He had already given so much offence, at the commencement of the war, by accepting the services which the catholic gentry were forward to offer, that instead of a more manly justification, which the temper of the times, he thought, did not permit, he had recourse to the useless subterfuges of denying or extenuating the facts, and even to a strangely improbable recrimination; asserting, on several occasions, that the number of papists in the parliament's army was much greater than in his own.[283] It may still indeed be questioned whether, admitting the propositions tendered to the king to have been unreasonable and insecure, it might not yet have been expedient, in the perilous condition of his affairs, rather to have tried the chances of peace than those of war. If he could have determined frankly and without reserve to have relinquished the church, and called the leaders of the presbyterian party in both houses to his councils, it is impossible to prove that he might not both have regained his power over the militia in no long course of time, and prevailed on the parliament to consent to its own dissolution. The dread that party felt of the republican spirit rising amongst the independents, would have induced them to place in the hands of any sovereign they could trust, full as much authority as our constitution permits. But no one who has paid attention to the history of that period, will conclude that they could have secured the king against their common enemy, had he even gone wholly into their own measures.[284] And this were to suppose such an entire change in his character, and ways of thinking, as no external circumstances could produce. Yet his prospects from a continuance of hostilities were so unpromising that most of the royalists would probably have hailed his almost unconditional submission at Uxbridge. Even the steady Richmond and Southampton, it is said, implored him to yield, and deprecated his misjudging confidence in promises of foreign aid, or in the successes of Montrose.[285] The more lukewarm or discontented of his adherents took this opportunity of abandoning an almost hopeless cause; between the breach of the treaty of Uxbridge and the battle of Naseby, several of the Oxford peers came over to the parliament, and took an engagement never to bear arms against it. A few instances of such defection had occurred before.[286] _Miseries of the war._--It remained only, after the rupture of the treaty at Uxbridge, to try once more the fortune of war. The people, both in the king's and parliament's quarters, but especially the former, heard with dismay that peace could not be attained. Many of the perpetual skirmishes and captures of towns which made every man's life and fortune precarious, have found no place in general history; but may be traced in the journal of Whitelock, or in the Mercuries and other fugitive sheets, great numbers of which are still extant. And it will appear, I believe, from these that scarcely one county in England was exempt, at one time or other of the war, from becoming the scene of this unnatural contest. Compared indeed with the civil wars in France in the preceding century, there had been fewer acts of enormous cruelty, and less atrocious breaches of public faith. But much blood had been wantonly shed, and articles of capitulation had been very indifferently kept. "Either side," says Clarendon, "having somewhat to object to the other, the requisite honesty and justice of observing conditions was mutually, as it were by agreement, for a long time violated."[287] The royalist army, especially the cavalry, commanded by men either wholly unprincipled, or at least regardless of the people, and deeming them ill affected, the princes Rupert and Maurice, Goring and Wilmot, lived without restraint of law or military discipline, and committed every excess even in friendly quarters.[288] An ostentatious dissoluteness became characteristic of the cavalier, as a formal austerity was of the puritan; one spoiling his neighbour in the name of God, the other of the king. The parliament's troops were not quite free from these military vices, but displayed them in a much less scandalous degree, owing to their more religious habits and the influence of their presbyterian chaplains, to the better example of their commanders, and to the comparative, though not absolute, punctuality of their pay.[289] But this pay was raised through unheard-of assessments, especially an excise on liquors, a new name in England, and through the sequestration of the estates of all the king's adherents; resources of which he also had availed himself, partly by the rights of war, partly by the grant of his Oxford parliament.[290] A war so calamitous seemed likely to endure till it had exhausted the nation. With all the parliament's superiority, they had yet to subdue nearly half the kingdom. The Scots had not advanced southward, content with reducing Newcastle and the rest of the northern counties. These they treated almost as hostile, without distinction of parties, not only exacting contributions, but committing, unless they are much belied, great excesses of indiscipline; their presbyterian gravity not having yet overcome the ancient national propensities.[291] In the midland and western parts the king had just the worse, without having sustained material loss; and another summer might pass away in marches and counter-marches, in skirmishes of cavalry, in tedious sieges of paltry fortifications, some of them mere country houses, which nothing but an amazing deficiency in that branch of military science could have rendered tenable. _Essex and Manchester suspected of lukewarmness._--This protraction of the war had long given rise to no unnatural discontent with its management, and to suspicions, first of Essex, then of Manchester and others in command, as if they were secretly reluctant to complete the triumph of their employers. It is indeed not impossible that both these peers, especially the former, out of their desire to see peace restored on terms compatible with some degree of authority in the Crown, and with the dignity of their own order, did not always press their advantages against the king, as if he had been a public enemy.[292] They might have thought that, having drawn the sword avowedly for the preservation of his person and dignity as much as for the rights and liberties of the people, they were no farther bound by their trust than to render him and his adherents sensible of the impracticability of refusing their terms of accommodation. _Self-denying ordinance._--There could however be no doubt that Fairfax and Cromwell were far superior, both by their own talents for war and the discipline they had introduced into their army, to the earlier parliamentary commanders, and that, as a military arrangement, the self-denying ordinance was judiciously conceived. This, which took from all members of both houses their commands in the army, or civil employments, was, as is well known, the first great victory of the independent party which had grown up lately in parliament under Vane and Cromwell.[293] They carried another measure of no less importance, collateral to the former; the new-modelling, as it was called, of the army; reducing it to twenty-one or twenty-two thousand men; discharging such officers and soldiers as were reckoned unfit, and completing their regiments by more select levies. The ordinance, after being once rejected by the Lords, passed their house with some modifications in April.[294] But many joined them on this occasion for those military reasons which I have mentioned, deeming almost any termination of the war better than its continuance. The king's rejection of their terms at Uxbridge had disgusted some of the more moderate men, such as the Earl of Northumberland and Pierrepont; who, deeming reconciliation impracticable, took from this time a different line of politics from that they had previously followed, and were either not alive to the danger of new-modelling the army, or willing to hope that it might be disbanded before that danger could become imminent. From Fairfax too, the new general, they saw little to fear and much to expect; while Cromwell, as a member of the House of Commons, was positively excluded by the ordinance itself. But, through a successful intrigue of his friends, this great man, already not less formidable to the presbyterian faction than to the royalists, was permitted to continue lieutenant-general.[295] The most popular justification for the self-denying ordinance, and yet perhaps its real condemnation, was soon found at Naseby; for there Fairfax and Cromwell triumphed not only over the king and the monarchy, but over the parliament and the nation. It does not appear to me that a brave and prudent man, in the condition of Charles the First, had, up to that unfortunate day, any other alternative than a vigorous prosecution of the war, in hope of such decisive success as, though hardly within probable calculation, is not unprecedented in the changeful tide of fortune. I cannot therefore blame him either for refusing unreasonable terms of accommodation, or for not relinquishing altogether the contest. But, after his defeat at Naseby, his affairs were, in a military sense, so irretrievable that in prolonging the war with as much obstinacy as the broken state of his party would allow, he displayed a good deal of that indifference to the sufferings of the kingdom and of his own adherents, which has been sometimes imputed to him. There was, from the hour of that battle, one only safe and honourable course remaining. He justly abhorred to reign, if so it could be named, the slave of parliament, with the sacrifice of his conscience and his friends. But it was by no means necessary to reign at all. The sea was for many months open to him; in France, or still better in Holland, he would have found his misfortunes respected, and an asylum in that decent privacy which becomes an exiled sovereign. Those very hopes which he too fondly cherished, and which lured him to destruction, hopes of regaining power through the disunion of his enemies, might have been entertained with better reason, as with greater safety, in a foreign land. It is not perhaps very probable that he would have been restored; but his restoration in such circumstances seems less desperate than through any treaty that he could conclude in captivity at home. Whether any such thoughts of abandoning a hopeless contest were ever entertained by the king during this particular period, it is impossible to pronounce; we should infer the contrary from all his actions. It must be said that many of his counsellors seem to have been as pertinacious as himself, having strongly imbibed the same sanguine spirit, and looking for deliverance, according to their several fancies, from the ambition of Cromwell or the discontent of the Scots. But, whatever might have been the king's disposition, he would not have dared to retire from England. That sinister domestic rule, to which he had so long been subject, controlled every action. Careless of her husband's happiness, and already attached probably to one whom she afterwards married, Henrietta longed only for his recovery of a power which would become her own.[296] Hence, while she constantly laid her injunctions on Charles never to concede anything as to the militia or the Irish catholics, she became desirous, when no other means presented itself, that he should sacrifice what was still nearer to his heart, the episcopal church-government. The queen-regent of France, whose sincerity in desiring the king's restoration there can be no ground to deny,[297] was equally persuaded that he could hope for it on no less painful conditions. They reasoned of course very plausibly from the great precedent of flexible consciences, the reconciliation of Henrietta's illustrious father to the catholic church. As he could neither have regained his royal power, nor restored peace to France without this compliance with his subjects' prejudices, so Charles could still less expect, in circumstances by no means so favourable, that he should avoid a concession, in the eyes of almost all men but himself, of incomparably less importance. _The king throws himself into the hands of the Scots._--It was in expectation of this sacrifice, that the French envoy, Montreuil, entered on his ill-starred negotiation for the king's taking shelter with the Scots army. And it must be confessed that several of his best friends were hardly less anxious that he should desert a church he could not protect.[298] They doubted not, reasoning from their own characters, that he would ultimately give way. But that Charles, unchangeably resolved on this head,[299] should have put himself in the power of men fully as bigoted as himself (if he really conceived that the Scots presbyterians would shed their blood to re-establish the prelacy they abhorred), was an additional proof of that delusion which made him fancy that no government could be established without his concurrence; unless indeed we should rather consider it as one of those desperate courses, into which he who can foresee nothing but evil from every calculable line of action will sometimes plunge at a venture, borrowing some ray of hope from the uncertainty of its consequences.[300] It was an inevitable effect of this step, that the king surrendered his personal liberty, which he never afterwards recovered. Considering his situation, we may at first think the parliament tolerably moderate, in offering nearly the same terms of peace at Newcastle which he had rejected at Uxbridge; the chief difference being, that the power of the militia which had been demanded for commissioners nominated and removable by the two houses during an indefinite period, was now proposed to reside in the two houses for the space of twenty years; which rather more unequivocally indicated their design of making the parliament perpetual.[301] But in fact they had so abridged the royal prerogative by their former propositions, that, preserving the decent semblance of monarchy, scarce anything further could be exacted. The king's circumstances were however so altered that, by persisting in his refusal of those propositions, he excited a natural indignation at his obstinacy in men who felt their own right (the conqueror's right), to dictate terms at pleasure. Yet this might have had a nobler character of firmness, if during all the tedious parleys of the last three years of his life, he had not, by tardy and partial concessions, given up so much of that for which he contended, as rather to appear like a pedlar haggling for the best bargain, than a sovereign unalterably determined by conscience and public spirit. We must, however, forgive much to one placed in such unparalleled difficulties. Charles had to contend, during his unhappy residence at Newcastle, not merely with revolted subjects in the pride of conquest, and with bigoted priests, as blindly confident in one set of doubtful propositions as he was in the opposite, but with those he had trusted the most, and loved the dearest. We have in the _Clarendon State Papers_ a series of letters from Paris, written, some by the queen, others jointly by Colepepper, Jermyn, and Ashburnham, or the two former, urging him to sacrifice episcopacy, as the necessary means of his restoration. We have the king's answers, that display, in an interesting manner, the struggles of his mind under this severe trial.[302] No candid reader, I think, can doubt that a serious sense of obligation was predominant in Charles's persevering fidelity to the English church. For, though he often alleges the incompatibility of presbyterianism with monarchy, and says very justly, "I am most confident that religion will much sooner regain the militia than the militia will religion,"[303] yet these arguments seem rather intended to weigh with those who slighted his scruples, than the paramount motives of his heart. He could hardly avoid perceiving that, as Colepepper told him in his rough style, the question was, whether he would choose to be a king of presbytery or no king. But the utmost length which he could prevail on himself to go was to offer the continuance of the presbyterian discipline, as established by the parliament, for three years, during which a conference of divines might be had, in order to bring about a settlement. Even this he would not propose without consulting two bishops, Juxon and Duppa, whether he could lawfully do so. They returned a very cautious answer, assenting to the proposition as a temporary measure, but plainly endeavouring to keep the king fixed in his adherence to the episcopal church.[304] Pressed thus on a topic, so important above all others in his eyes, the king gave a proof of his sincerity by greater concessions of power than he had ever intended. He had some time before openly offered to let the parliament name all the commissioners of the militia for seven years, and all the officers of state and judges to hold their places for life.[305] He now empowered a secret agent in London, Mr. William Murray, privately to sound the parliamentary leaders, if they would consent to the establishment of a moderated episcopacy after three or five years, on condition of his departing from the right of the militia during his whole life.[306] This dereliction of the main ground of contest brought down the queen's indignation on his head. She wrote several letters, in an imperious and unfeeling tone, declaring that she would never set her foot in England as long as the parliament should exist.[307] Jermyn and Colepepper assumed a style hardly less dictatorial in their letters,[308] till Charles withdrew the proposal, which Murray seems never to have communicated.[309] It was indeed the evident effect of despair and a natural weariness of his thorny crown. He now began to express serious thoughts of making his escape,[310] and seems even to hint more than once at a resignation of his government to the Prince of Wales. But Henrietta forbade him to think of an escape, and alludes to the other with contempt and indignation.[311] With this selfish and tyrannical woman, that life of exile and privacy which religion and letters would have rendered tolerable to the king, must have been spent in hardly less bitterness than on a dishonoured throne. She had displayed in France as little virtue as at home; the small resources which should have been frugally dispensed to those who had lost all for the royal cause were squandered upon her favourite and her French servants.[312] So totally had she abandoned all regard to English interest, that Hyde and Capel, when retired to Jersey, the governor of which, Sir Edward Carteret, still held out for the king, discovered a plan formed by the queen and Jermyn to put that island into the hands of France.[313] They were exceedingly perplexed at this discovery, conscious of the impossibility of defending Jersey, and yet determined not to let it be torn away from the sovereignty of the British Crown. No better expedient occurred than, as soon as the project should be ripe for execution, to despatch a message "to the Earl of Northumberland or some other person of honour," asking for aid to preserve the island. This was of course, in other words, to surrender it into the power of the parliament, which they would not name even to themselves. But it was evidently more consistent with their loyalty to the king and his family, than to trust the good faith of Mazarin. The scheme, however, was abandoned; for we hear no more of it. It must, however, be admitted at the present day, that there was no better expedient for saving the king's life, and some portion of royal authority for his descendants (a fresh renunciation of episcopacy perhaps only excepted), than such an abdication; the time for which had come before he put himself into the hands of the Scots. His own party had been weakened, and the number of his well-wishers diminished, by something more than the events of war. The last unfortunate year had, in two memorable instances, revealed fresh proofs of that culpable imprudence, speaking mildly, which made wise and honest men hopeless of any permanent accommodation. At the battle of Naseby, copies of some letters to the queen, chiefly written about the time of the treaty of Uxbridge, and strangely preserved, fell into the hands of the enemy, and were instantly published.[314] No other losses of that fatal day were more injurious to his cause. Besides many proofs of a contemptible subserviency to one justly deemed irreconcilable to the civil and religious interests of the kingdom, and many expressions indicating schemes and hopes inconsistent with any practicable peace, and especially a design to put an end to the parliament,[315] he gave her power to treat with the English catholics, promising to take away all penal laws against them as soon as God should enable him to do so, in consideration of such powerful assistance, as might deserve so great a favour, and enable him to effect it.[316] Yet it was certain that no parliament, except in absolute duress, would consent to repeal these laws. To what sort of victory therefore did he look? It was remembered that, on taking the sacrament at Oxford some time before, he had solemnly protested that he would maintain the protestant religion of the church of England, without any connivance at popery. What trust could be reposed in a prince capable of forfeiting so solemn a pledge? Were it even supposed that he intended to break his word with the catholics, after obtaining such aid as they could render him, would his insincerity be less flagrant?[317] _Discovery of Glamorgan's treaty._--These suspicions were much aggravated by a second discovery that took place soon afterwards, of a secret treaty between the Earl of Glamorgan and the confederate Irish catholics, not merely promising the repeal of the penal laws, but the establishment of their religion in far the greater part of Ireland.[318] The Marquis of Ormond, as well as Lord Digby who happened to be at Dublin, loudly exclaimed against Glamorgan's presumption in concluding such a treaty, and committed him to prison on a charge of treason. He produced two commissions from the king, secretly granted without any seal or the knowledge of any minister, containing the fullest powers to treat with the Irish, and promising to fulfil any conditions into which he should enter. The king, informed of this, disavowed Glamorgan; and asserted in a letter to the parliament that he had merely a commission to raise men for his service, but no power to treat of anything else, without the privity of the lord lieutenant, much less to capitulate anything concerning religion or any property belonging either to church or laity.[319] Glamorgan however was soon released, and lost no portion of the king's or his family's favour. This transaction has been the subject of much historical controversy. The enemies of Charles, both in his own and later ages, have considered it as a proof of his indifference at least to the protestant religion, and of his readiness to accept the assistance of Irish rebels on any conditions. His advocates for a long time denied the authenticity of Glamorgan's commissions. But Dr. Birch demonstrated that they were genuine; and, if his dissertation could have left any doubt, later evidence might be adduced in confirmation.[320] Hume, in a very artful and very unfair statement, admitting the authenticity of these instruments, endeavours to show that they were never intended to give Glamorgan any power to treat without Ormond's approbation. But they are worded in the most unconditional manner, without any reference to Ormond. No common reader can think them consistent with the king's story. I do not, however, impute to him any intention of ratifying the terms of Glamorgan's treaty. His want of faith was not to the protestant, but to the catholic. Upon weighing the whole of the evidence, it appears to me that he purposely gave Glamorgan, a sanguine and injudicious man, whom he could easily disown, so ample a commission as might remove the distrust that the Irish were likely to entertain of a negotiation wherein Ormond should be concerned; while by a certain latitude in the style of the instrument, and by his own letters to the lord lieutenant about Glamorgan's errand, he left it open to assert, in case of necessity, that it was never intended to exclude the former's privity and sanction. Charles had unhappily long been in the habit of perverting his natural acuteness to the mean subterfuges of equivocal language. By these discoveries of the king's insincerity, and by what seemed his infatuated obstinacy in refusing terms of accommodation, both nations became more and more alienated from him; the one hardly restrained from casting him off, the other ready to leave him to his fate.[321] _The king delivered up by the Scots._--This ill opinion of the king forms one apology for that action which has exposed the Scots nation to so much reproach--their delivery of his person to the English parliament. Perhaps if we place ourselves in their situation, it will not appear deserving of quite such indignant censure. It would have shown more generosity to have offered the king an alternative of retiring to Holland; and from what we now know, he probably would not have neglected the opportunity. But the consequence might have been his solemn deposition from the English throne; and, however we may think such banishment more honourable than the acceptance of degrading conditions, the Scots, we should remember, saw nothing in the king's taking the covenant, and sweeping away prelatic superstitions, but the bounden duty of a christian sovereign, which only the most perverse self-will induced him to set at nought.[322] They had a right also to consider the interests of his family, which the threatened establishment of a republic in England would defeat. To carry him back with their army into Scotland, besides being equally ruinous to the English monarchy, would have exposed their nation to the most serious dangers. To undertake his defence by arms against England, as the ardent royalists desired, and doubtless the determined republicans no less, would have been, as was proved afterwards, a mad and culpable renewal of the miseries of both kingdoms.[323] He had voluntarily come to their camp; no faith was pledged to him; their very right to retain his person, though they had argued for it with the English parliament, seemed open to much doubt. The circumstance, unquestionably, which has always given a character of apparent baseness to this transaction, is the payment of £400,000 made to them so nearly at the same time that it has passed for the price of the king's person. This sum was part of a larger demand on the score of arrears of pay, and had been agreed upon long before we have any proof or reasonable suspicion of a stipulation to deliver up the king.[324] That the parliament would never have actually paid it on any other consideration, there can be, I presume, no kind of doubt; and of this the Scots must have been fully aware. But whether there were any such secret bargain as has been supposed, or whether they would have delivered him up, if there had been no pecuniary expectation in the case, is what I cannot perceive sufficient grounds to pronounce with confidence; though I am much inclined to believe the affirmative of the latter question. And it is deserving of particular observation, that the party in the House of Commons which sought most earnestly to obtain possession of the king's person, and carried all the votes for payment of money to the Scots, was that which had no further aim than an accommodation with him, and a settlement of the government on the basis of its fundamental laws, though doubtless on terms very derogatory to his prerogative; while those who opposed each part of the negotiation were the zealous enemies of the king, and, in some instances, at least, of the monarchy. The Journals bear witness to this.[325] _Growth of the independents and republicans._--Whatever might have been the consequence of the king's accepting the propositions of Newcastle, his chance of restoration upon any terms was now in all appearance very slender. He had to encounter enemies more dangerous and implacable than the presbyterians. That faction, which from small and insensible beginnings had acquired continued strength, through ambition in a few, through fanaticism in many, through a despair in some of reconciling the pretensions of royalty with those of the people, was now rapidly ascending to superiority. Though still weak in the House of Commons, it had spread prodigiously in the army, especially since its new-modelling at the time of the self-denying ordinance.[326] The presbyterians saw with dismay the growth of their own and the constitution's enemies. But the royalists, who had less to fear from confusion than from any settlement that the Commons would be brought to make, rejoiced in the increasing disunion; and fondly believed, like their master, that one or other party must seek assistance at their hands.[327] _Opposition to the presbyterian government._--The independent party comprehended, besides the members of that religious denomination,[328] a countless brood of fanatical sectaries, nursed in the lap of presbyterianism, and fed with the stimulating aliment she furnished, till their intoxicated fancies could neither be restrained within the limits of her creed nor those of her discipline.[329] The presbyterian zealots were systematically intolerant. A common cause made toleration the doctrine of the sectaries. About the beginning of the war, it had been deemed expedient to call together an assembly of divines, nominated by the parliament, and consisting not only of clergymen, but, according to the presbyterian usage, of lay members, peers as well as commoners, by whose advice a general reformation of the church was to be planned.[330] These were chiefly presbyterian; though a small minority of independents, and a few moderate episcopalians, headed by Selden,[331] gave them much trouble. The general imposition of the covenant, and the substitution of the directory for the common prayer (which was forbidden to be used even in any private family, by an ordinance of August 1645), seemed to assure the triumph of presbyterianism; which became complete, in point of law, by an ordinance of February 1646, establishing for three years the Scots model of classes, synods, and general assemblies throughout England.[332] But in this very ordinance there was a reservation which wounded the spiritual arrogance of that party. Their favourite tenet had always been the independency of the church. They had rejected, with as much abhorrence as the catholics themselves, the royal supremacy, so far as it controlled the exercise of spiritual discipline. But the House of Commons were inclined to part with no portion of that prerogative which they had wrested from the Crown. Besides the independents, who were still weak, a party called Erastians,[333] and chiefly composed of the common lawyers, under the guidance of Selden, the sworn foe of every ecclesiastical usurpation, withstood the assembly's pretensions with success. They negatived a declaration of the divine right of presbyterian government. They voted a petition from the assembly, complaining of a recent ordinance as an encroachment on spiritual jurisdiction, to be a breach of privilege. The presbyterian tribunals were made subject to the appellant control of parliament; as those of the Anglican church had been to that of the Crown. The cases wherein spiritual censures could be pronounced, or the sacrament denied, instead of being left to the clergy, were defined by law.[334] Whether from dissatisfaction on this account, or some other reason, the presbyterian discipline was never carried into effect, except to a certain extent in London and in Lancashire. But the beneficed clergy throughout England, till the return of Charles II., were chiefly, though not entirely, of that denomination.[335] This party was still so far predominant, having the strong support of the city of London and its corporation,[336] with almost all the peers who remained in their house, that the independents and other sectaries neither opposed this ordinance for its temporary establishment, nor sought anything farther than a toleration for their own worship. The question, as Neal well observes, was not between presbytery and independency, but between presbytery with a toleration, and without one.[337] Not merely from their own exclusive bigotry, but from a political alarm by no means ungrounded, the presbyterians stood firmly against all liberty of conscience. But in this again they could not influence the House of Commons to suppress the sectaries, though no open declaration in favour of indulgence was as yet made. It is still the boast of the independents that they first brought forward the great principles of religious toleration (I mean as distinguished from maxims of political expediency) which had been confined to a few philosophical minds; to Sir Thomas More, in those days of his better judgment when he planned his republic of Utopia, to Thuanus, or L'Hospital. Such principles are indeed naturally congenial to the persecuted; and it is by the alternate oppression of so many different sects, that they have now obtained their universal reception. But the independents also assert that they first maintained them while in power; a far higher praise, which however can only be allowed them by comparison. Without invidiously glancing at their early conduct in New England,[338] it must be admitted that the continuance of the penal laws against catholics, the prohibition of the episcopalian worship, and the punishment of one or two anti-trinitarians under Cromwell, are proofs that the tolerant principle had not yet acquired perfect vigour. If the independent sectaries were its earliest advocates, it was the Anglican writers, the latitudinarian school of Chillingworth, Hales, Taylor, Locke, and Hoadley, that rendered it victorious.[339] The king, as I have said, and his party cherished too sanguine hopes from the disunion of their opponents.[340] Though warned of it by the parliamentary commissioners at Uxbridge, though in fact it was quite notorious and undisguised, they seem never to have comprehended that many active spirits looked to the entire subversion of the monarchy. The king in particular was haunted by a prejudice, natural to his obstinate and undiscerning mind, that he was necessary to the settlement of the nation; so that, if he remained firm, the whole parliament and army must be at his feet. Yet during the negotiations at Newcastle there was daily an imminent danger that the majority of parliament, irritated by his delays, would come to some vote excluding him from the throne. The Scots presbyterians, whatever we may think of their behaviour, were sincerely attached, if not by loyal affection, yet by national pride, to the blood of their ancient kings. They thought and spoke of Charles as of a headstrong child, to be restrained and chastised, but never cast off.[341] But in England he had absolutely no friends among the prevailing party; many there were who thought monarchy best for the nation, but none who cared for the king. This schism nevertheless between the parliament and the army was at least in appearance very desirable for Charles, and seemed to afford him an opportunity which a discreet prince might improve to great advantage, though it unfortunately deluded him with chimerical expectations.[342] At the conclusion of the war, which the useless obstinacy of the royalists had protracted till the beginning of 1647,[343] the Commons began to take measures for breaking the force of their remaining enemy. They resolved to disband a part of the army, and to send the rest into Ireland.[344] They formed schemes for getting rid of Cromwell, and even made some demur about continuing Fairfax in command.[345] But in all measures that exact promptitude and energy, treachery and timidity are apt to enfeeble the resolutions of a popular assembly. Their demonstrations of enmity were however so alarming to the army, who knew themselves disliked by the people, and dependent for their pay on the parliament, that as early as April, 1647, an overture was secretly made to the king, that they would replace him in his power and dignity. He cautiously answered, that he would not involve the kingdom in a fresh war, but should ever feel the strongest sense of this offer from the army.[346] Whether they were discontented at the coldness of this reply, or, as is more probable, the offer had only proceeded from a minority of the officers, no further overture was made, till not long afterwards the bold manoeuvre of Joyce had placed the king's person in their power. _The parliament yield to the army._--The first effect of this military violence was to display the parliament's deficiency in political courage. It contained, we well know, a store of energetic spirits, not apt to swerve from their attachments. But, where two parties are almost equally balanced, the defection, which external circumstances must produce among those timid and feeble men from whom no assembly can be free, even though they should form but a small minority, will of course give a character of cowardice and vacillation to counsels, which is imputed to the whole. They immediately expunged, by a majority of 96 to 79, a vote of reprehension passed some weeks before, upon a remonstrance from the army which the presbyterians had highly resented, and gave other proofs of retracing their steps. But the army was not inclined to accept their submission in full discharge of the provocation. It had schemes of its own for the reformation and settlement of the kingdom, more extensive than those of the presbyterian faction. It had its own wrongs also to revenge. Advancing towards London, the general and council of war sent up charges of treason against eleven principal members of that party, who obtained leave to retire beyond sea. Here may be said to have fallen the legislative power and civil government of England; which from this hour till that of the restoration had never more than a momentary and precarious gleam of existence, perpetually interrupted by the sword. Those who have once bowed their knee to force, must expect that force will be for ever their master. In a few weeks after this submission of the Commons to the army, they were insulted by an unruly, tumultuous mob of apprentices, engaged in the presbyterian politics of the city, who compelled them by actual violence to rescind several of their late votes.[347] Trampled upon by either side, the two speakers, several peers, and a great number of the lower house, deemed it somewhat less ignominious, and certainly more politic, to throw themselves on the protection of the army. They were accordingly soon restored to their places, at the price of a more complete and irretrievable subjection to the military power than they had already undergone. Though the presbyterians maintained a pertinacious resistance within the walls of the house, it was evident that the real power of command was gone from them, and that Cromwell with the army must either become arbiters between the king and parliament, or crush the remaining authority of both.[348] _Mysterious conduct of Cromwell._--There are few circumstances in our history which have caused more perplexity to inquirers than the conduct of Cromwell and his friends towards the king in the year 1647. Those who look only at the ambitious and dissembling character of that leader, or at the fierce republicanism imputed to Ireton, will hardly believe that either of them could harbour anything like sincere designs of restoring him even to that remnant of sovereignty which the parliament would have spared. Yet, when we consider attentively the public documents and private memoirs of that period, it does appear probable that their first intentions towards the king were not unfavourable, and so far sincere that it was their project to make use of his name rather than totally to set him aside. But whether by gratifying Cromwell and his associates with honours, and throwing the whole administration into their hands, Charles would have long contrived to keep a tarnished crown on his head, must be very problematical. _Imprudent hopes of the king._--The new gaolers of this unfortunate prince began by treating him with unusual indulgence, especially in permitting his episcopal chaplains to attend him. This was deemed a pledge of what he thought an invaluable advantage in dealing with the army, that they would not insist upon the covenant, which in fact was nearly as odious to them as to the royalists, though for very different reasons. Charles, naturally sanguine, and utterly incapable in every part of his life of taking a just view of affairs, was extravagantly elated by these equivocal testimonies of good-will. He blindly listened to private insinuations from rash or treacherous friends, that the soldiers were with him, just after his seizure by Joyce. "I would have you to know, sir," he said to Fairfax, "that I have as good an interest in the army as yourself;" an opinion as injudiciously uttered as it was absurdly conceived.[349] These strange expectations account for the ill reception which in the hasty irritation of disappointment he gave to the proposals of the army, when they were actually tendered to him at Hampton Court, and which seems to have eventually cost him his life. These proposals appear to have been drawn up by Ireton, a lawyer by education, and a man of much courage and capacity. He had been supposed, like a large proportion of the officers, to aim at a settlement of the nation under a democratical polity. But the army, even if their wishes in general went so far, which is hardly evident, were not yet so decidedly masters as to dictate a form of government uncongenial to the ancient laws and fixed prejudices of the people. Something of this tendency is discoverable in the propositions made to the king, which had never appeared in those of the parliament. It was proposed that parliaments should be biennial; that they should never sit less than a hundred and twenty days, nor more than two hundred and forty; that the representation of the Commons should be reformed, by abolishing small boroughs and increasing the number of members for counties, so as to render the House of Commons, as near as might be, an equal representation of the whole. In respect of the militia and some other points, they either followed the parliamentary propositions of Newcastle, or modified them favourably for the king. They excepted a very small number of the king's adherents from the privilege of paying a composition for their estates, and set that of the rest considerably lower than had been fixed by the parliament. They stipulated that the royalists should not sit in the next parliament. As to religion, they provided for liberty of conscience, declared against the imposition of the covenant, and by insisting on the retrenchment of the coercive jurisdiction of bishops and the abrogation of penalties for not reading the common prayer, left it to be implied that both might continue established.[350] The whole tenor of these propositions was in a style far more respectful to the king, and lenient towards his adherents, than had ever been adopted since the beginning of the war. The sincerity indeed of these overtures might be very questionable, if Cromwell had been concerned in them; but they proceeded from those elective tribunes called Agitators, who had been established in every regiment to superintend the interests of the army.[351] And the terms were surely as good as Charles had any reason to hope. The severities against his party were mitigated. The grand obstacles to all accommodation, the covenant and presbyterian establishment, were at once removed; or, if some difficulty might occur as to the latter, in consequence of the actual possession of benefices by the presbyterian clergy, it seemed not absolutely insuperable. For the changes projected in the constitution of parliament, they were not necessarily injurious to the monarchy. That parliament should not be dissolved until it had sat a certain time, was so salutary a provision, that the triennial act was hardly complete without it. It is, however, probable, from the king's extreme tenaciousness of his prerogative, that these were the conditions that he found it most difficult to endure. Having obtained, through Sir John Berkley, a sight of the propositions before they were openly made, he expressed much displeasure; and said that, if the army were inclined to close with him, they would never have demanded such hard terms. He seems to have principally objected, at least in words, to the exception of seven unnamed persons from pardon, to the exclusion of his party from the next parliament, and to the want of any articles in favour of the church. Berkley endeavoured to show him that it was not likely that the army, if meaning sincerely, should ask less than this. But the king, still tampering with the Scots, and keeping his eyes fixed on the city and parliament, at that moment came to an open breach with the army, disdainfully refused the propositions when publicly tendered to him, with such expressions of misplaced resentment and preposterous confidence as convinced the officers that they could neither conciliate nor trust him.[352] This unexpected haughtiness lost him all chance with those proud and republican spirits; and, as they succeeded about the same time in bridling the presbyterian party in parliament, there seemed no necessity for an agreement with the king, and their former determinations of altering the frame of government returned with more revengeful fury against his person.[353] _Charles's flight from Hampton Court._--Charles's continuance at Hampton Court, there can be little doubt, would have exposed him to such imminent risk that, in escaping from thence, he acted on a reasonable principle of self-preservation. He might probably, with due precautions, have reached France or Jersey. But the hastiness of his retreat from Hampton Court giving no time, he fell again into the toils, through the helplessness of his situation, and the unfortunate counsels of one whom he trusted.[354] The fortitude of his own mind sustained him in this state of captivity and entire seclusion from his friends. No one, however sensible to the infirmities of Charles's disposition, and the defects of his understanding, can refuse admiration to that patient firmness and unaided acuteness which he displayed throughout the last and most melancholy year of his life. He had now abandoned all expectation of obtaining any present terms for the church or Crown. He proposed, therefore, what he had privately empowered Murray to offer the year before, to confirm the presbyterian government for three years, and to give up the militia during his whole life, with other concessions of importance.[355] To preserve the church lands from sale, to shield his friends from proscription, to obtain a legal security for the restoration of the monarchy in his son, were from henceforth the main objects of all his efforts. It was, however, far too late, even for these moderate conditions of peace. Upon his declining to pass four bills, tendered to him as preliminaries of a treaty, which on that very account, besides his objections to part of their contents, he justly considered as unfair, the parliament voted that no more addresses should be made to him, and that they would receive no more messages.[356] He was placed in close and solitary confinement; and at a meeting of the principal officers at Windsor it was concluded to bring him to trial, and avenge the blood shed in the war by an awful example of punishment; Cromwell and Ireton, if either of them had been ever favourable to the king, acceding at this time to the severity of the rest. Yet in the midst of this peril and seeming abandonment, his affairs were really less desperate than they had been; and a few rays of light broke for a time through the clouds that enveloped him. From the hour that the Scots delivered him up at Newcastle, they seem to have felt the discredit of such an action, and longed for the opportunity of redeeming their public name. They perceived more and more that a well-disciplined army, under a subtle chief inveterately hostile to them, were rapidly becoming masters of England. Instead of that covenanted alliance, that unity in church and state they had expected, they were to look for all the jealousy and dissension that a complete discordance in civil and spiritual polity could inspire. Their commissioners, therefore, in England, Lanerk, always a moderate royalist, and Lauderdale, a warm presbyterian, had kept up a secret intercourse with the king at Hampton Court. After his detention at Carisbrook, they openly declared themselves against the four bills proposed by the English parliament; and at length concluded a private treaty with him, by which, on certain terms quite as favourable as he could justly expect, they bound themselves to enter England with an army, in order to restore him to his freedom and dignity.[357] This invasion was to be combined with risings in various parts of the country; the presbyterian and royalist, though still retaining much of animosity towards each other, concurring at least in abhorrence of military usurpation; and the common people having very generally returned to that affectionate respect for the king's person, which sympathy for his sufferings, and a sense how little they had been gainers by the change of government, must naturally have excited.[358] _The presbyterians regain the ascendant._--The unfortunate issue of the Scots expedition under the Duke of Hamilton, and of the various insurrections throughout England, quelled by the vigilance and good conduct of Fairfax and Cromwell, is well known. But these formidable manifestations of the public sentiment in favour of peace with the king on honourable conditions, wherein the city of London, ruled by the presbyterian ministers, took a share, compelled the House of Commons to retract its measures. They came to a vote, by 165 to 99, that they would not alter the fundamental government by King, Lords, and Commons;[359] they abandoned their impeachment against seven peers, the most moderate of the upper house, and the most obnoxious to the army,[360] they restored the eleven members to their seats:[361] they revoked their resolution against a personal treaty with the king, and even that which required his assent by certain preliminary articles.[362] In a word, the party for distinction's sake called Presbyterian, but now rather to be denominated constitutional, regained its ascendancy. This change in the counsels of parliament brought on the treaty of Newport. _Treaty of Newport._--The treaty of Newport was set on foot and managed by those politicians of the House of Lords, who, having long suspected no danger to themselves but from the power of the king, had discovered, somewhat of the latest, that the Crown itself was at stake, and that their own privileges were set on the same cast. Nothing was more remote from the intentions of the Earl of Northumberland or Lord Say, than to see themselves pushed from their seats by such upstarts as Ireton and Harrison; and their present mortification afforded a proof how men reckoned wise in their generation become the dupes of their own selfish, crafty, and pusillanimous policy. They now grew anxious to see a treaty concluded with the king. Sensible that it was necessary to anticipate, if possible, the return of Cromwell from the north, they implored him to comply at once with all the propositions of parliament, or at least to yield in the first instance as far as he meant to go.[363] They had not, however, mitigated in any degree the rigorous conditions so often proposed; nor did the king during this treaty obtain any reciprocal concession worth mentioning in return for his surrender of almost all that could be demanded. Did the positive adherence of the parliament to all these propositions, in circumstances so perilous to themselves, display less unreasonable pertinacity than that so often imputed to Charles? Or if, as was the fact, the majority which the presbyterians had obtained was so precarious that they dared not hazard it by suggesting any more moderate counsels, what rational security would the treaty have afforded him, had he even come at once into all their requisitions? His real error was to have entered upon any treaty, and still more to have drawn it out by tardy and ineffectual capitulations. There had long been only one course either for safety or for honour, the abdication of his royal office; now probably too late to preserve his life, but still more honourable than the treaty of Newport. Yet though he was desirous to make his escape to France, I have not observed any hint that he had thoughts of resigning the crown; whether from any mistaken sense of obligation, or from an apprehension that it might affect the succession of his son. There can be no more erroneous opinion than that of such as believe that the desire of overturning the monarchy produced the civil war, rather than that the civil war brought on the former. In a peaceful and ancient kingdom like England, the thought of change could not spontaneously arise. A very few speculative men, by the study of antiquity, or by observation of the prosperity of Venice and Holland, might be led to an abstract preference of republican politics; some fanatics might aspire to a Jewish theocracy; but at the meeting of the Long Parliament, we have not the slightest cause to suppose that any party, or any number of persons among its members, had formed what must then have appeared so extravagant a conception.[364] The insuperable distrust of the king's designs, the irritation excited by the sufferings of the war, the impracticability, which every attempt at negotiation displayed, of obtaining his acquiescence to terms deemed indispensable, gradually created a powerful faction, whose chief bond of union was a determination to set him aside.[365] What further scheme they had planned is uncertain; none probably in which any number were agreed: some looked to the Prince of Wales, others perhaps, at one time, to the elector palatine;[366] but necessity itself must have suggested to many the idea of a republican settlement. In the new-modelled army of 1645, composed of independents and enthusiasts of every denomination, a fervid eagerness for changes in the civil polity, as well as in religion, was soon found to predominate. Not checked, like the two houses, by attachment to forms, and by the influence of lawyers, they launched forth into varied projects of reform, sometimes judicious, or at least plausible, sometimes wildly fanatical. They reckoned the king a tyrant whom, as they might fight against, they might also put to death, and whom it were folly to provoke, if he were again to become their master. Elated with their victories, they began already in imagination to carve out the kingdom for themselves; and remembered that saying so congenial to a revolutionary army, that the first of monarchs was a successful leader, the first of nobles were his followers.[367] _Gradual progress of a republican party._--The knowledge of this innovating spirit in the army gave confidence to the violent party in parliament, and increased its numbers by the accession of some of those to whom nature has given a fine sense for discerning their own advantage. It was doubtless swollen through the king's letters, and his pertinacity in clinging to his prerogative. And the complexion of the House of Commons was materially altered by the introduction at once of a large body of fresh members. They had at the beginning abstained from issuing writs to replace those whose death or expulsion had left their seats vacant. These vacancies, by the disabling votes against all the king's party,[368] became so numerous that it seemed a glaring violation of the popular principles to which they appealed, to carry on the public business with so maimed a representation of the people. It was however plainly impossible to have elections in many parts of the kingdom, while the royal army was in strength; and the change, by filling up nearly two hundred vacancies at once, was likely to become so important that some feared that the cavaliers, others that the independents and republicans, might find their advantage in it.[369] The latter party were generally earnest for new elections; and carried their point against the presbyterians in September 1645, when new writs were ordered for all the places which were left deficient of one or both representatives.[370] The result of these elections, though a few persons rather friendly to the king came into the house, was on the whole very favourable to the army. The self-denying ordinance no longer being in operation, the principal officers were elected on every side; and, with not many exceptions, recruited the ranks of that small body, which had already been marked by implacable dislike of the king, and by zeal for a total new-modelling of the government.[371] In the summer of 1646, this party had so far obtained the upper hand that, according to one of our best authorities, the Scots commissioners had all imaginable difficulty to prevent his deposition. In the course of the year 1647, more overt proofs of a design to change the established constitution were given by a party out of doors. A petition was addressed "to the supreme authority of this nation, the Commons assembled in parliament." It was voted upon a division, that the house dislikes this petition, and cannot approve of its being delivered; and afterwards, by a majority of only 94 to 86, that it was seditious and insolent, and should be burned by the hangman.[372] Yet the first decisive proof, perhaps, which the journals of parliament afford of the existence of a republican party, was the vote of 22nd Sept. 1647, that they would once again make application to the king for those things which they judged necessary for the welfare and safety of the kingdom. This was carried by 70 to 23.[373] Their subsequent resolution of Jan. 4, 1648, against any further addresses to the king, which passed by a majority of 141 to 91, was a virtual renunciation of allegiance. The Lords, after a warm debate, concurred in this vote. And the army had in November 1647, before the king's escape from Hampton Court published a declaration of their design for the settlement of the nation under a sovereign representative assembly, which should possess authority to make or repeal laws, and to call magistrates to account. We are not certainly to conclude that all who, in 1648, had made up their minds against the king's restoration, were equally averse to all regal government. The Prince of Wales had taken so active, and, for a moment, so successful a share in the war of that year, that his father's enemies were become his own. Meetings however were held, where the military and parliamentary chiefs discussed the schemes of raising the Duke of York, or his younger brother the Duke of Glocester, to the throne. Cromwell especially wavered, or pretended to waver, as to the settlement of the nation; nor is there any evidence, so far as I know, that he had ever professed himself adverse to monarchy, till, dexterously mounting on the wave which he could not stem, he led on those zealots who had resolved to celebrate the inauguration of their new commonwealth with the blood of a victim king.[374] _Scheme among the officers of bringing Charles to trial._--It was about the end of 1647, as I have said, that the principal officers took the determination, which had been already menaced by some of the agitators, of bringing the king, as the first and greatest delinquent, to public justice.[375] Too stern and haughty, too confident of the rightfulness of their actions, to think of private assassination, they sought to gratify their pride by the solemnity and notoriousness, by the very infamy and eventual danger, of an act unprecedented in the history of nations. Throughout the year 1648, this design, though suspended, became familiar to the people's expectation.[376] The commonwealth's men and the levellers, the various sectaries (admitting a few exceptions) grew clamorous for the king's death. Petitions were presented to the Commons, praying for justice on all delinquents, from the highest to the lowest.[377] And not long afterwards, the general officers of the army came forward with a long remonstrance against any treaty, and insisting that the capital and grand author of their troubles be speedily brought to justice, for the treason, blood, and mischief, whereof he had been guilty.[378] This was soon followed by the vote of the presbyterian party, that the answers of the king to the propositions of both houses are a ground for the house to proceed upon for the settlement of the peace of the kingdom,[379] by the violent expulsion, or as it was called, seclusion of all the presbyterian members from the house, and the ordinance of a wretched minority, commonly called the Rump, constituting the high court of justice for the trial of the king.[380] A very small number among those who sat in this strange tribunal upon Charles the First were undoubtedly capable of taking statesman-like views of the interests of their party, and might consider his death a politic expedient for consolidating the new settlement. It seemed to involve the army, which had openly abetted the act, and even the nation by its passive consent, in such inexpiable guilt towards the royal family, that neither common prudence nor a sense of shame would permit them to suffer its restoration. But by far the greater part of the regicides such considerations were either overlooked or kept in the background. Their more powerful motive was that fierce fanatical hatred of the king, the natural fruit of long civil dissension, inflamed by preachers more dark and sanguinary than those they addressed, and by a perverted study of the Jewish scriptures. They had been wrought to believe, not that his execution would be justified by state-necessity or any such feeble grounds of human reasoning, but that it was a bounden duty, which with a safe conscience they could not neglect. Such was the persuasion of Ludlow and Hutchinson, the most respectable names among the regicides; both of them free from all suspicion of interestedness or hypocrisy, and less intoxicated than the rest by fanaticism. "I was fully persuaded," says the former, "that an accommodation with the king was unsafe to the people of England, and unjust and wicked in the nature of it. The former, besides that it was obvious to all men, the king himself had proved, by the duplicity of his dealing with the parliament, which manifestly appeared in his own papers, taken at the battle of Naseby and elsewhere. Of the latter I was convinced by the express words of God's law; 'that blood defileth the land, and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.' (Numbers, c. xxxv. v. 33.) And therefore I could not consent to leave the guilt of so much blood on the nation, and thereby to draw down the just vengeance of God upon us all, when it was most evident that the war had been occasioned by the invasion of our rights and open breach of our laws and constitution on the king's part."[381] "As for Mr. Hutchinson," says his high-souled consort, "although he was very much confirmed in his judgment concerning the cause, yet being here called to an extraordinary action, whereof many were of several minds, he addressed himself to God by prayer, desiring the Lord, that, if through any human frailty, he were led into any error or false opinion in those great transactions, he would open his eyes, and not suffer him to proceed, but that he would confirm his spirit in the truth, and lead him by a right-enlightened conscience; and finding no check, but a confirmation in his conscience, that it was his duty to act as he did, he, upon serious debate, both privately and in his addresses to God, and in conferences with conscientious, upright, unbiassed persons, proceeded to sign the sentence against the king. Although he did not then believe but it might one day come to be again disputed among men, yet both he and others thought they could not refuse it without giving up the people of God, whom they had led forth and engaged themselves unto by the oath of God, into the hands of God's and their enemies; and therefore he cast himself upon God's protection, acting according to the dictates of a conscience which he had sought the Lord to guide; and accordingly the Lord did signalise his favour afterward to him."[382] _Question of Charles's execution discussed._--The execution of Charles the First has been mentioned in later ages by a few with unlimited praise, by some with faint and ambiguous censure, by most with vehement reprobation. My own judgment will possibly be anticipated by the reader of the preceding pages. I shall certainly not rest it on the imaginary sacredness and divine origin of royalty, nor even on the irresponsibility with which the law of almost every country invests the person of its sovereign. Far be it from me to contend that no cases may be conceived, that no instances may be found in history, wherein the sympathy of mankind and the sound principles of political justice would approve a public judicial sentence as the due reward of tyranny and perfidiousness. But we may confidently deny that Charles the First was thus to be singled out as a warning to tyrants. His offences were not, in the worst interpretation, of that atrocious character which calls down the vengeance of insulted humanity, regardless of positive law. His government had been very arbitrary; but it may well be doubted whether any, even of his ministers, could have suffered death for their share in it, without introducing a principle of barbarous vindictiveness. Far from the sanguinary misanthropy of some monarchs, or the revengeful fury of others, he had in no instance displayed, nor does the minute scrutiny since made into his character entitle us to suppose, any malevolent dispositions beyond some proneness to anger, and a considerable degree of harshness in his demeanour.[383] As for the charge of having caused the bloodshed of the war, upon which, and not on any former misgovernment, his condemnation was grounded, it was as ill established as it would have been insufficient. Well might the Earl of Northumberland say, when the ordinance for the king's trial was before the Lords, that the greatest part of the people of England were not yet satisfied whether the king levied war first against the houses, or the houses against him.[384] The fact, in my opinion, was entirely otherwise. It is quite another question whether the parliament were justified in their resistance to the king's legal authority. But we may contend that, when Hotham, by their command, shut the gates of Hull against his sovereign, when the militia was called out in different counties by an ordinance of the two houses, both of which preceded by several weeks any levying of forces for the king, the bonds of our constitutional law were by them and their servants snapped asunder; and it would be the mere pedantry and chicane of political casuistry to enquire, even if the fact could be better ascertained, whether at Edgehill, or in the minor skirmishes that preceded, the first carbine was discharged by a cavalier or a roundhead. The aggressor in a war is not the first who uses force, but the first who renders force necessary. But, whether we may think this war to have originated in the king's or the parliament's aggression, it is still evident that the former had a fair case with the nation, a cause which it was no plain violation of justice to defend. He was supported by the greater part of the Peers, by full one-third of the Commons, by the principal body of the gentry, and a large proportion of other classes. If his adherents did not form, as I think they did not, the majority of the people, they were at least more numerous, beyond comparison, than those who demanded or approved of his death. The steady deliberate perseverance of so considerable a body in any cause takes away the right of punishment from the conquerors, beyond what their own safety or reasonable indemnification may require. The vanquished are to be judged by the rules of national, not of municipal, law. Hence, if Charles, after having by a course of victories or the defection of the people prostrated all opposition, had abused his triumph by the execution of Essex or Hampden, Fairfax or Cromwell, I think that later ages would have disapproved of their deaths as positively, though not quite as vehemently, as they have of his own. The line is not easily drawn, in abstract reasoning, between the treason which is justly punished, and the social schism which is beyond the proper boundaries of law; but the civil war of England seems plainly to fall within the latter description. These objections strike me as unanswerable, even if the trial of Charles had been sanctioned by the voice of the nation through its legitimate representatives, or at least such a fair and full convention as might, in great necessity, supply the place of lawful authority. But it was, as we all know, the act of a bold but very small minority, who having forcibly expelled their colleagues from parliament, had usurped, under the protection of a military force, that power which all England reckoned illegal. I cannot perceive what there was in the imagined solemnity of this proceeding, in that insolent mockery of the forms of justice, accompanied by all unfairness and inhumanity in its circumstances, which can alleviate the guilt of the transaction; and if it be alleged that many of the regicides were firmly persuaded in their consciences of the right and duty of condemning the king, we may surely remember that private murderers have often had the same apology. _The character of Charles._--In discussing each particular transaction in the life of Charles, as of any other sovereign, it is required by the truth of history to spare no just animadversion upon his faults; especially where much art has been employed by the writers most in repute to carry the stream of public prejudice in an opposite direction. But when we come to a general estimate of his character, we should act unfairly not to give their full weight to those peculiar circumstances of his condition in this worldly scene, which tend to account for and extenuate his failings. The station of kings is, in a moral sense, so unfavourable, that those who are least prone to servile admiration should be on their guard against the opposite error of an uncandid severity. There seems no fairer method of estimating the intrinsic worth of a sovereign, than to treat him as a subject, and to judge, so far as the history of his life enables us, what he would have been in that more private and happier condition, from which the chance of birth has excluded him. Tried by this test, we cannot doubt that Charles the First would have been not altogether an amiable man, but one deserving of general esteem; his firm and conscientious virtues the same, his deviations from right far less frequent, than upon the throne. It is to be pleaded for this prince that his youth had breathed but the contaminated air of a profligate and servile court, that he had imbibed the lessons of arbitrary power from all who surrounded him, that he had been betrayed by a father's culpable blindness into the dangerous society of an ambitious, unprincipled favourite. To have maintained so much correctness of morality as his enemies confess, was a proof of Charles's virtuous dispositions; but his advocates are compelled also to own that he did not escape as little injured by the poisonous adulation to which he had listened. Of a temper by nature, and by want of restraint, too passionate, though not vindictive; and, though not cruel, certainly deficient in gentleness and humanity, he was entirely unfit for the very difficult station of royalty, and especially for that of a constitutional king. It is impossible to excuse his violations of liberty on the score of ignorance, especially after the petition of right; because his impatience of opposition from his council made it unsafe to give him any advice that thwarted his determination. His other great fault was want of sincerity--a fault that appeared in all parts of his life, and from which no one who has paid the subject any attention will pretend to exculpate him. Those indeed who know nothing but what they find in Hume may believe, on Hume's authority, that the king's contemporaries never dreamed of imputing to him any deviation from good faith; as if the whole conduct of the parliament had not been evidently founded upon a distrust, which on many occasions they very explicitly declared. But, so far as this insincerity was shown in the course of his troubles, it was a failing which untoward circumstances are apt to produce, and which the extreme hypocrisy of many among his adversaries might sometimes palliate. Few personages in history, we should recollect, have had so much of their actions revealed, and commented upon, as Charles; it is perhaps a mortifying truth that those who have stood highest with posterity, have seldom been those who have been most accurately known. The turn of his mind was rather peculiar, and laid him open with some justice to very opposite censures--for an extreme obstinacy in retaining his opinion, and for an excessive facility in adopting that of others. But the apparent incongruity ceases, when we observe that he was tenacious of ends, and irresolute as to means; better fitted to reason than to act; never swerving from a few main principles, but diffident of his own judgment in its application to the course of affairs. His chief talent was an acuteness in dispute; a talent not usually much exercised by kings, but which the strange events of his life called into action. He had, unfortunately for himself, gone into the study most fashionable in that age, of polemical theology; and, though not at all learned, had read enough of the English divines to maintain their side of the current controversies with much dexterity. But this unkingly talent was a poor compensation for the continual mistakes of his judgment in the art of government and the conduct of his affairs.[385] _Icon Basiliké._--It seems natural not to leave untouched in this place, the famous problem of the _Icon Basiliké_, which has been deemed an irrefragable evidence both of the virtues and the talents of Charles. But the authenticity of this work can hardly be any longer a question among judicious men. We have letters from Gauden and his family, asserting it as his own in the most express terms, and making it the ground of a claim for reward. We know that the king's sons were both convinced that it was not their father's composition, and that Clarendon was satisfied of the same. If Gauden not only set up a false claim to so famous a work, but persuaded those nearest to the king to surrender that precious record, as it had been reckoned, of his dying sentiments, it was an instance of successful impudence which has hardly a parallel. But I should be content to rest the case on that internal evidence, which has been so often alleged for its authenticity. The _Icon_ has to my judgment all the air of a fictitious composition. Cold, stiff, elaborate, without a single allusion that bespeaks the superior knowledge of facts which the king must have possessed, it contains little but those rhetorical common-places which would suggest themselves to any forger. The prejudices of party, which exercise a strange influence in matters of taste, have caused this book to be extravagantly praised. It has doubtless a certain air of grave dignity, and the periods are more artificially constructed than was usual in that age (a circumstance not in favour of its authenticity); but the style is encumbered with frigid metaphors, as is said to be the case in Gauden's acknowledged writings; and the thoughts are neither beautiful, nor always exempt from affectation. The king's letters during his imprisonment, preserved in the _Clarendon State Papers_, and especially one to his son, from which an extract is given in the _History of the Rebellion_, are more satisfactory proofs of his integrity than the laboured self-panegyrics of the _Icon Basiliké_.[386] PART II _Commonwealth_--_Abolition of the monarchy, and of the house of lords._--The death of Charles the First was pressed forward rather through personal hatred and superstition, than out of any notion of its necessity to secure a republican administration. That party was still so weak, that the Commons came more slowly, and with more difference of judgment than might be expected, to an absolute renunciation of monarchy. They voted indeed that the people are, under God, the original of all just power; and that whatever is enacted by the Commons in parliament hath the force of law, although the consent and concurrence of the king or House of Peers be not had thereto; terms manifestly not exclusive of the nominal continuance of the two latter. They altered the public style from the king's name to that of the parliament, and gave other indications of their intentions; but the vote for the abolition of monarchy did not pass till the seventh of February, after a debate, according to Whitelock, but without a division. None of that clamorous fanaticism showed itself, which, within recent memory, produced, from a far more numerous assembly, an instantaneous decision against monarchy. Wise men might easily perceive that the regal power was only suspended through the force of circumstances, not abrogated by any real change in public opinion. The House of Lords, still less able than the Crown to withstand the inroads of democracy, fell by a vote of the Commons at the same time. It had continued during the whole progress of the war to keep up as much dignity as the state of affairs would permit; tenacious of small privileges, and offering much temporary opposition in higher matters, though always receding in the end from a contention wherein it could not be successful. The Commons, in return, gave them respectful language, and discountenanced the rude innovators who talked against the rights of the peerage. They voted, on occasion of some rumours, that they held themselves obliged, by the fundamental laws of the kingdom and their covenant, to preserve the peerage with the rights and privileges belonging to the House of Peers, equally with their own.[387] Yet this was with a secret reserve that the Lords should be of the same mind as themselves. For, the upper house having resented some words dropped from Sir John Evelyn at a conference concerning the removal of the king to Warwick Castle, importing that the Commons might be compelled to act without them, the Commons vindicating their member as if his words did not bear that interpretation, yet added, in the same breath, a plain hint that it was not beyond their own views of what might be done; "hoping that their lordships did not intend by their inference upon the words, even in the sense they took the same, so to bind up this house to one way of proceeding as that in no case whatsoever, though never so extraordinary, though never so much importing the honour and interest of the kingdom, the Commons of England might not do their duty, for the good and safety of the kingdom, in such a way as they may, if they cannot do it in such a way as they would and most desire."[388] After the violent seclusion of the constitutional party from the House of Commons, on the 6th of December 1648, very few, not generally more than five, peers continued to meet. Their number was suddenly increased to twelve on the 2nd of January; when the vote of the Commons that it is high treason in the King of England for the time being to levy war against parliament, and the ordinance constituting the high court of justice, were sent up for their concurrence. These were unanimously rejected with more spirit than some, at least, of their number might be expected to display. Yet, as if apprehensive of giving too much umbrage, they voted at their next meeting to prepare an ordinance, making it treasonable for any future king of England to levy war against the parliament--a measure quite as unconstitutional as that they had rejected. They continued to linger on the verge of annihilation during the month, making petty orders about writs of error, from four to six being present: they even met on the 30th of January. On the 1st of February, six peers forming the house, it was moved, "that they would take into consideration the settlement of the government of England and Ireland, in this present conjuncture of things upon the death of the king;" and ordered that these Lords following (naming those present and three more) be appointed to join with a proportionable number of the House of Commons for that purpose. Soon after, the speaker acquainted the house that he had that morning received a letter from the Earl of Northumberland, with a paper enclosed, of very great concernment; and for the present the house ordered that it should be sealed up with the speaker's seal. This probably related to the impending dissolution of their house; for they found next day that their messengers sent to the Commons had not been admitted. They persisted, however, in meeting till the 6th, when they made a trifling order, and adjourned "till ten o'clock to-morrow."[389] That morrow was the 25th of April 1660. For the Commons, having the same day rejected, by a majority of forty-four to twenty-nine, a motion that they would take the advice of the House of Lords in the exercise of the legislative power, resolved that the House of Peers was useless and dangerous, and ought to be abolished.[390] It should be noticed that there was no intention of taking away the dignity of peerage; the Lords, throughout the whole duration of the commonwealth, retained their titles, not only in common usage, but in all legal and parliamentary documents. The Earl of Pembroke, basest among the base, condescended to sit in the House of Commons as knight for the county of Berks; and was received, notwithstanding his proverbial meanness and stupidity, with such excessive honour as displayed the character of those low-minded upstarts, who formed a sufficiently numerous portion of the house to give their tone to its proceedings.[391] Thus by military force, with the approbation of an inconceivably small proportion of the people, the king was put to death; the ancient fundamental laws were overthrown; and a mutilated House of Commons, wherein very seldom more than seventy or eighty sat, was invested with the supreme authority. So little countenance had these late proceedings even from those who seemed of the ruling faction, that, when the executive council of state, consisting of forty-one, had been nominated, and a test was proposed to them, declaring their approbation of all that had been done about the king and the kingly office, and about the House of Lords, only nineteen would subscribe it, though there were fourteen regicides on the list.[392] It was agreed at length, that they should subscribe it only as to the future proceedings of the Commons. With such dissatisfaction at head-quarters, there was little to hope from the body of the nation.[393] Hence, when an engagement was tendered to all civil officers and beneficed clergy, containing only a promise to live faithful to the commonwealth, as it was established without a king or House of Lords (though the slightest test of allegiance that any government could require), it was taken with infinite reluctance, and, in fact, refused by very many; the presbyterian ministers especially showing a determined averseness to the new republican organisation.[394] This, however, was established (such is the dominion of the sword) far beyond the control of any national sentiment. Thirty thousand veteran soldiers guaranteed the mock parliament they had permitted to reign. The sectaries, a numerous body, and still more active than numerous, possessed, under the name of committees for various purposes appointed by the House of Commons, the principal local authorities, and restrained by a vigilant scrutiny the murmurs of a disaffected majority. Love, an eminent presbyterian minister, lost his head for a conspiracy, by the sentence of a high court of justice, a tribunal that superseded trial by jury.[395] His death struck horror and consternation into that arrogant priesthood, who had begun to fancy themselves almost beyond the scope of criminal law. The cavaliers were prostrate in the dust; and, anxious to retrieve something from the wreck of their long sequestered estates, had generally little appetite to embark afresh in a hopeless cause; besides that the mutual animosities between their party and the presbyterians were still too irreconcilable to admit of any sincere co-operation. Hence, neither made any considerable effort in behalf of Charles on his march, or rather flight, into England; a measure, indeed, too palpably desperate for prudent men who had learned the strength of their adversaries; and the great victory of Worcester consummated the triumph of the infant commonwealth, or rather of its future master. _Schemes of Cromwell._--A train of favouring events, more than any deep-laid policy, had now brought sovereignty within the reach of Cromwell. His first schemes of ambition may probably have extended no farther than a title and estate, with a great civil and military command in the king's name. Power had fallen into his hands because they alone were fit to wield it; he was taught by every succeeding event his own undeniable superiority over his contemporaries in martial renown, in civil prudence, in decision of character, and in the public esteem, which naturally attached to these qualities. Perhaps it was not till after the battle of Worcester that he began to fix his thoughts, if not on the dignity of royalty, yet on an equivalent right of command. Two remarkable conversations, in which Whitelock bore a part, seem to place beyond controversy the nature of his designs. About the end of 1651, Whitelock himself, St. John, Widdrington, Lenthall, Harrison, Desborough, Fleetwood, and Whalley, met Cromwell, at his own request, to consider the settlement of the nation. The four former were in favour of monarchy, Whitelock inclining to Charles, Widdrington and others to the Duke of Glocester; Desborough and Whalley were against a single person's government, and Fleetwood uncertain. Cromwell, who had evidently procured this conference in order to sift the inclinations of so many leading men, and to give some intimation of his own, broke it up with remarking, that, if it might be done with safety and preservation of their rights as Englishmen and Christians, a settlement of somewhat with monarchical power in it would be very effectual.[396] The observation he here made of a disposition among the lawyers to elect the Duke of Glocester, as being exempt by his youth from the prepossessions of the two elder brothers, may, perhaps, have put Cromwell on releasing him from confinement, and sending him to join his family beyond sea.[397] Twelve months after this time, in a more confidential discourse with Whitelock alone, the general took occasion to complain both of the chief officers of the army and of the parliament; the first, as inclined to factious murmurings, and the second, as ingrossing all offices to themselves, divided into parties, delaying business, guilty of gross injustice and partiality, and designing to perpetuate their own authority. Whitelock, confessing part of this, urged that having taken commissions from them as the supreme power, it would be difficult to find means to restrain them. "What," said Cromwell, "if a man should take upon him to be king?" "I think," answered Whitelock, "that remedy would be worse than the disease." "Why," rejoined the other, "do you think so?" He then pointed out that the statute of Henry VII. gave a security to those who acted under a king, which no other government could furnish; and that the reverence paid by the people to that title would serve to curb the extravagances of those now in power. Whitelock replied that their friends having engaged in a persuasion, though erroneous, that their rights and liberties would be better preserved under a commonwealth than a monarchy, this state of the question would be wholly changed by Cromwell's assumption of the title, and it would become a private controversy between his family and that of the Stuarts. Finally, on the other's encouragement to speak fully his thoughts, he told him "that no expedient seemed so desirable as a private treaty with the king, in which he might not only provide for the security of his friends, and the greatness of his family, but set limits to monarchical power, keeping the command of the militia in his own hands." Cromwell merely said, "that such a step would require great consideration;" but broke off with marks of displeasure, and consulted Whitelock much less for some years afterwards.[398] These projects of usurpation could not deceive the watchfulness of those whom Cromwell pretended to serve. He had on several occasions thrown off enough of his habitual dissimulation to show the commonwealth's men that he was theirs only by accident, with none of their fondness for republican polity. _Unpopularity of the parliament._--The parliament in its present wreck contained few leaders of superior ability; but a natural instinct would dictate to such an assembly the distrust of a popular general, even if there had been less to alarm them in his behaviour.[399] They had no means, however, to withstand him. The creatures themselves of military force, their pretensions to direct or control the army could only move scorn or resentment. Their claim to a legal authority, and to the name of representatives of a people who rejected and abhorred them, was perfectly impudent. When the house was fullest, their numbers did not much exceed one hundred; but the ordinary divisions, even on subjects of the highest moment, show an attendance of but fifty or sixty members. They had retained in their hands, notwithstanding the appointment of a council of state, most of whom were from their own body, a great part of the executive government, especially the disposal of offices.[400] These they largely shared among themselves or their dependents; and in many of their votes gave occasion to such charges of injustice and partiality as, whether true or false, will attach to a body of men so obviously self-interested.[401] It seems to be a pretty general opinion that a popular assembly is still more frequently influenced by corrupt and dishonest motives in the distribution of favours, or the decision of private affairs, than a ministry of state; whether it be that it is more probable that a man of disinterestedness and integrity may in the course of events rise to the conduct of government than that such virtues should belong to a majority; or that the clandestine management of court corruption renders it less scandalous and more easily varnished, than the shamelessness of parliamentary iniquity. The republican interest in the nation was almost wholly composed of two parties, both off-shoots deriving strength from the great stock of the army; the levellers, of whom Lilburne and Wildman are the most known, and the anabaptists, fifth monarchy-men, and other fanatical sectaries, headed by Harrison, Hewson, Overton, and a great number of officers. Though the sectaries seemed to build their revolutionary schemes more on their own religious views than the levellers, they coincided in most of their objects and demands.[402] An equal representation of the people in short parliaments, an extensive alteration of the common law, the abolition of tithes, and indeed of all regular stipends to the ministry, a full toleration of religious worship, were reformations which they concurred in requiring, as the only substantial fruits of their arduous struggle.[403] Some among the wilder sects dreamed of overthrowing all civil institutions. These factions were not without friends in the Commons. But the greater part were neither inclined to gratify them, by taking away the provision of the church, nor much less to divest themselves of their own authority. They voted indeed that tithes should cease as soon as a competent maintenance should be otherwise provided for the clergy.[404] They appointed a commission to consider the reformation of the law, in consequence of repeated petitions against many of its inconveniences and abuses; who, though taxed of course with dilatoriness by the ardent innovators, suggested many useful improvements, several of which have been adopted in more regular times, though with too cautious delay.[405] They proceeded rather slowly and reluctantly to frame a scheme for future parliaments; and resolved that they should consist of 400, to be chosen in due proportion by the several counties, nearly upon the model suggested by Lilburne, and afterwards carried into effect by Cromwell.[406] It was with much delay and difficulty, amidst the loud murmurs of their adherents, that they could be brought to any vote in regard to their own dissolution. It passed on November 17, 1651, after some very close divisions, that they should cease to exist as a parliament on November 3, 1654.[407] The republicans out of doors, who deemed annual, or at least biennial, parliaments essential to their definition of liberty, were indignant at so unreasonable a prolongation. Thus they forfeited the good-will of the only party on whom they could have relied. Cromwell dexterously aggravated their faults; he complained of their delaying the settlement of the nation; he persuaded the fanatics of his concurrence in their own schemes; the parliament, in turn, conspired against his power, and, as the conspiracies of so many can never be secret, let it be seen that one or other must be destroyed; thus giving his forcible expulsion of them the pretext of self-defence. They fell with no regret, or rather with much joy of the nation, except a few who dreaded more from the alternative of military usurpation or anarchy than from an assembly which still retained the names and forms so precious in the eyes of those who adhere to the ancient institutions of their country.[408] _Little parliament._--It was now the deep policy of Cromwell to render himself the sole refuge of those who valued the laws, or the regular ecclesiastical ministry, or their own estates, all in peril from the mad enthusiasts who were in hopes to prevail.[409] These he had admitted into that motley convention of one hundred and twenty persons, sometimes called Barebone's parliament, but more commonly the little parliament, on whom his council of officers pretended to devolve the government, mingling them with a sufficient proportion of a superior class whom he could direct.[410] This assembly took care to avoid the censure which their predecessors had incurred, by passing a good many bills, and applying themselves with a vigorous hand to the reformation of what their party deemed the most essential grievances, those of the law and of the church. They voted the abolition of the Court of Chancery, a measure provoked by its insufferable delay, its engrossing of almost all suits, and the uncertainty of its decisions. They appointed a committee to consider of a new body of the law, without naming any lawyer upon it.[411] They nominated a set of commissioners to preside in courts of justice, among whom they with difficulty admitted two of that profession;[412] they irritated the clergy by enacting that marriages should be solemnised before justices of the peace;[413] they alarmed them still more, by manifesting a determination to take away their tithes, without security for an equivalent maintenance.[414] Thus having united against itself these two powerful bodies, whom neither kings nor parliaments in England have in general offended with impunity, this little synod of legislators was ripe for destruction. Their last vote was to negative a report of their own committee, recommending that such as should be approved as preachers of the gospel, should enjoy the maintenance already settled by law; and that the payment of tithes, as a just property, should be enforced by the magistrates. The house having, by the majority of two, disagreed with this report,[415] the speaker, two days after, having secured a majority of those present, proposed the surrender of their power into the hands of Cromwell, who put an end to the opposition of the rest, by turning them out of doors. It can admit of no doubt that the despotism of a wise man is more tolerable than that of political or religious fanatics; and it rarely happens that there is any better remedy in revolutions which have given the latter an ascendant. Cromwell's assumption, therefore, of the title of Protector was a necessary and wholesome usurpation, however he may have caused the necessity; it secured the nation from the mischievous lunacy of the anabaptists, and from the more cool-blooded tyranny of that little oligarchy which arrogated to itself the name of commonwealth's men. Though a gross and glaring evidence of the omnipotence of the army, the instrument under which he took his title, accorded to him no unnecessary executive authority. The sovereignty still resided in the parliament; he had no negative voice on their laws. Until the meeting of the next parliament, a power was given him of making temporary ordinances; but this was not, as Hume, on the authority of Clarendon and Warwick, has supposed, and as his conduct, if that were any proof of the law, might lead us to infer, designed to exist in future intervals of the legislature.[416] It would be scarcely worth while, however, to pay much attention to a form of government which was so little regarded, except as it marks the jealousy of royal power, which those most attached to Cromwell, and least capable of any proper notions of liberty, continued to entertain. In the ascent of this bold usurper to greatness, he had successively employed and thrown away several of the powerful factions who distracted the nation. He had encouraged the levellers and persecuted them; he had flattered the long parliament and betrayed it; he had made use of the sectaries to crush the commonwealth; he had spurned the sectaries in his last advance to power. These, with the royalists and the presbyterians, forming, in effect, the whole people, though too disunited for such a coalition as must have overthrown him, were the perpetual, irreconcilable enemies of his administration. Master of his army, which he well knew how to manage, surrounded by a few deep and experienced counsellors, furnished by his spies with the completest intelligence of all designs against him, he had no great cause of alarm from open resistance. _Parliament called by Cromwell._--But he was bound by the instrument of government to call a parliament; and in any parliament his adversaries must be formidable. He adopted in both those which he summoned, the reformed model already determined; limiting the number of representatives to 400, to be chosen partly in the counties, according to their wealth or supposed population, by electors possessing either freeholds, or any real or movable property to the value of £200; partly by the more considerable boroughs, in whose various rights of election no change appears to have been made.[417] This alteration, conformable to the equalising principles of the age, did not produce so considerable a difference in the persons returned as it perhaps might at present.[418] The court-party, as those subservient to him were called, were powerful through the subjection of the electors to the army. But they were not able to exclude the presbyterian and republican interests; the latter headed by Bradshaw, Haslerig, and Scott, eager to thwart the power which they were compelled to obey.[419] Hence they began by taking into consideration the whole instrument of government; and even resolved themselves into a committee to debate its leading article, the protector's authority. Cromwell, his supporters having lost this question on a division of 141 to 136, thought it time to interfere. He gave them to understand that the government by a single person and a parliament, was a fundamental principle, not subject to their discussion; and obliged every member to a recognition of it, solemnly promising neither to attempt nor to concur in any alteration of that article.[420] The Commons voted, however, that this recognition should not extend to the entire instrument, consisting of forty-two articles; and went on to discuss them with such heat and prolixity, that after five months, the limited term of their session, the protector, having obtained the ratification of his new scheme neither so fully nor so willingly as he desired, particularly having been disappointed by the great majority of 200 to 60, which voted the protectorate to be elective, not hereditary, dissolved the parliament with no small marks of dissatisfaction.[421] _Intrigues of the king and his party._--The banished king, meanwhile, began to recover a little of that political importance which the battle of Worcester had seemed almost to extinguish. So ill supported by his English adherents on that occasion, so incapable with a better army than he had any prospect of ever raising again, to make a stand against the genius and fortune of the usurper, it was vain to expect that he could be restored by any domestic insurrection, until the disunion of the prevailing factions should offer some more favourable opportunity. But this was too distant a prospect for his court of starving followers. He had from the beginning looked around for foreign assistance. But France was distracted by her own troubles; Spain deemed it better policy to cultivate the new commonwealth; and even Holland, though engaged in a dangerous war with England, did not think it worth while to accept his offer of joining her fleet, in order to try his influence with the English seamen.[422] Totally unscrupulous as to the means by which he might reign, even at the moment that he was treating to become the covenanted king of Scotland, with every solemn renunciation of popery, Charles had recourse to a very delicate negotiation, which deserves remark, as having led, after a long course of time, but by gradual steps, to the final downfall of his family. With the advice of Ormond, and with the concurrence of Hyde, he attempted to interest the pope (Innocent X.) on his side, as the most powerful intercessor with the catholic princes of Europe.[423] For this purpose it was necessary to promise toleration at least to the catholics. The king's ambassadors to Spain in 1650, Cottington and Hyde, and other agents despatched to Rome at the same time, were empowered to offer an entire repeal of the penal laws.[424] The king himself, some time afterwards, wrote a letter to the pope, wherein he repeated this assurance. That court, however, well aware of the hereditary duplicity of the Stuarts, received his overtures with haughty contempt. The pope returned no answer to the king's letter; but one was received after many months from the general of the jesuits, requiring that Charles should declare himself a catholic, since the goods of the church could not be lavished for the support of an heretical prince.[425] Even after this insolent refusal, the wretched exiles still clung, at times, to the vain hope of succour, which as protestants and Englishmen they could not honourably demand.[426] But many of them remarked too clearly the conditions on which assistance might be obtained; the court of Charles, openly or in secret, began to pass over to the catholic church; and the contagion soon spread to the highest places. In the year 1654, the royalist intrigues in England began to grow more active and formidable through the accession of many discontented republicans.[427] Though there could be no coalition, properly speaking, between such irreconcilable factions, they came into a sort of tacit agreement, as is not unusual, to act in concert for the only purpose they entertained alike, the destruction of their common enemy. Major Wildman, a name not very familiar to the general reader, but which occurs perpetually, for almost half a century, when we look into more secret history, one of those dark and restless spirits who delight in the deep game of conspiracy against every government, seems to have been the first mover of this unnatural combination. He had been early engaged in the schemes of the levellers, and was exposed to the jealous observation of the ruling powers. It appears most probable that his views were to establish a commonwealth, and to make the royalists his dupes. In his correspondence however with Brussels, he engaged to restore the king. Both parties were to rise in arms against the new tyranny; and the nation's temper was tried by clandestine intrigues in almost every county.[428] Greater reliance however was placed on the project of assassinating Cromwell. Neither party were by any means scrupulous on this score: if we have not positive evidence of Charles's concurrence in this scheme, it would be preposterous to suppose that he would have been withheld by any moral hesitation. It is frequently mentioned without any disapprobation by Clarendon in his private letters;[429] and, as the royalists certainly justified the murders of Ascham and Dorislaus, they could not in common sense or consistency have scrupled one so incomparably more capable of defence.[430] A Mr. Gerard suffered death for one of these plots to kill Cromwell; justly sentenced, though by an illegal tribunal.[431] _Insurrectionary movements in 1655._--In the year 1655, Penruddock, a Wiltshire gentleman, with a very trifling force, entered Salisbury at the time of the assizes; and, declaring for the king, seized the judge and the sheriff.[432] This little rebellion, meeting with no resistance from the people, but a supineness equally fatal, was soon quelled. It roused Cromwell to secure himself by an unprecedented exercise of power. In possession of all the secrets of his enemies, he knew that want of concert or courage had alone prevented a general rising, towards which indeed there had been some movements in the midland counties.[433] He was aware of his own unpopularity, and the national bias towards the exiled king. Juries did not willingly convict the sharers in Penruddock's rebellion.[434] To govern according to law may sometimes be an usurper's wish, but can seldom be in his power. The protector abandoned all thought of it. Dividing the kingdom into districts, he placed at the head of each a major-general as a sort of military magistrate, responsible for the subjection of his prefecture. These were eleven in number, men bitterly hostile to the royalist party, and insolent towards all civil authority.[435] They were employed to secure the payment of a tax of 10 per cent., imposed by Cromwell's arbitrary will on those who had ever sided with the king during the late war, where their estates exceeded £100 per annum. The major-generals, in their correspondence printed among Thurloe's papers, display a rapacity and oppression beyond their master's. They complain that the number of those exempted is too great; they press for harsher measures; they incline to the unfavourable construction in every doubtful case; they dwell on the growth of malignancy and the general disaffection.[436] It was not indeed likely to be mitigated by this unparalleled tyranny. All illusion was now gone as to the pretended benefits of the civil war. It had ended in a despotism, compared to which all the illegal practices of former kings, all that had cost Charles his life and crown, appeared as dust in the balance. For what was ship-money, a general burthen, by the side of the present decimation of a single class, whose offence had long been expiated by a composition and defaced by an act of indemnity? or were the excessive punishments of the star-chamber so odious as the capital executions inflicted without trial by peers, whenever it suited the usurper to erect his high court of justice? A sense of present evils not only excited a burning desire to live again under the ancient monarchy, but obliterated, especially in the new generation, that had no distinct remembrance of them, the apprehension of its former abuses.[437] _Cromwell's arbitrary government._--If this decimation of the royalists could pass for an act of severity towards a proscribed faction, in which the rest of the nation might fancy themselves not interested, Cromwell did not fail to show that he designed to exert an equally despotic command over every man's property. With the advice of his council, he had imposed, or, as I conceive (for it is not clearly explained), continued, a duty on merchandise beyond the time limited by law. A Mr. George Cony having refused to pay this tax, it was enforced from him, on which he sued the collector. Cromwell sent his counsel, Maynard, Twisden, and Wyndham, to the Tower, who soon petitioned for liberty, and abandoned their client. Rolle, the chief justice, when the cause came on, dared not give judgment against the protector; yet, not caring to decide in his favour, postponed the case till the next term, and meanwhile retired from the bench. Glyn, who succeeded him upon it, took care to have this business accommodated with Cony, who, at some loss of public reputation, withdrew his suit. Sir Peter Wentworth, having brought a similar action, was summoned before the council, and asked if he would give it up. "If you command me," he replied to Cromwell, "I must submit;" which the protector did, and the action was withdrawn.[438] Though it cannot be said that such an interference with the privileges of advocates or the integrity of judges was without precedents in the times of the Stuarts, yet it had never been done in so public or shameless a manner. Several other instances wherein the usurper diverted justice from its course, or violated the known securities of Englishmen, will be found in most general histories; not to dwell on that most flagrant of all, the erection of his high court of justice, by which Gerard and Vowel in 1654, Slingsby and Hewit in 1658, were brought to the scaffold.[439] I cannot therefore agree in the praises which have been showered upon Cromwell for the just administration of the laws under his dominion. That, between party and party, the ordinary civil rights of men were fairly dealt with, is no extraordinary praise; and it may be admitted that he filled the benches of justice with able lawyers, though not so considerable as those of the reign of Charles the Second; but it is manifest that, so far as his own authority was concerned, no hereditary despot, proud in the crimes of a hundred ancestors, could more have spurned at every limitation than this soldier of a commonwealth.[440] _Cromwell summons another parliament._--Amidst so general a hatred, trusting to the effect of an equally general terror, the protector ventured to summon a parliament in 1656. Besides the common necessities for money, he had doubtless in his head that remarkable scheme which was developed during its session.[441] Even the despotic influence of his major-generals, and the political annihilation of the most considerable body of the gentry, then labouring under the imputation of delinquency for their attachment to the late king, did not enable him to obtain a secure majority in the assembly; and he was driven to the audacious measure of excluding above ninety members, duly returned by their constituents, from taking their seats. Their colleagues wanted courage to resist this violation of all privilege; and, after referring them to the council for approbation, resolved to proceed with public business. The excluded members, consisting partly of the republican, partly of the presbyterian factions, published a remonstrance in a very high strain, but obtained no redress.[442] _Cromwell designs to take the crown._--Cromwell, like so many other usurpers, felt his position too precarious, or his vanity ungratified, without the name which mankind have agreed to worship. He had, as evidently appears from the conversations recorded by Whitelock, long since aspired to this titular, as well as to the real, pre-eminence; and the banished king's friends had contemplated the probability of his obtaining it with dismay.[443] Affectionate towards his family, he wished to assure the stability of his son's succession, and perhaps to please the vanity of his daughters. It was indeed a very reasonable object with one who had already advanced so far. His assumption of the crown was desirable to many different classes; to the lawyers, who, besides their regard for the established constitution, knew that an ancient statute would protect those who served a _de facto_ king in case of a restoration of the exiled family; to the nobility, who perceived that their legislative right must immediately revive; to the clergy, who judged the regular ministry more likely to be secure under a monarchy; to the people, who hoped for any settlement that would put an end to perpetual changes; to all of every rank and profession who dreaded the continuance of military despotism, and demanded only the just rights and privileges of their country. A king of England could succeed only to a bounded prerogative, and must govern by the known laws; a protector, as the nation had well felt, with less nominal authority, had all the sword could confer. And, though there might be little chance that Oliver would abate one jot of a despotism for which not the times of the Tudors could furnish a precedent, yet his life was far worn, and under a successor it was to be expected that future parliaments might assert again all those liberties for which they had contended against Charles.[444] A few of the royalists might perhaps fancy that the restoration of the royal title would lead to that of the lawful heir; but a greater number were content to abandon a nearly desperate cause, if they could but see the more valuable object of their concern, the form itself of polity, re-established.[445] There can be, as it appears to me, little room for doubt that if Cromwell had overcome the resistance of his generals, he would have transmitted the sceptre to his descendants with the acquiescence and tacit approbation of the kingdom. Had we been living ever since under the rule of his dynasty, what tone would our historians have taken as to his character and that of the house of Stuart? The scheme however of founding a new royal line failed of accomplishment, as is well known, through his own caution, which deterred him from encountering the decided opposition of his army. Some of his contemporaries seem to have deemed this abandonment, or more properly suspension, of so splendid a design rather derogatory to his firmness.[446] But few men were better judges than Cromwell of what might be achieved by daring. It is certainly not impossible that, by arresting Lambert, Whalley, and some other generals, he might have crushed for the moment any tendency to open resistance. But the experiment would have been infinitely hazardous. He had gone too far in the path of violence to recover the high road of law by any short cut. King or protector, he must have intimidated every parliament, or sunk under its encroachments. A new-modelled army might have served his turn; but there would have been great difficulties in its formation. It had from the beginning been the misfortune of his government that it rested on a basis too narrow for its safety. For two years he had reigned with no support but the independent sectaries and the army. The army or its commanders becoming odious to the people, he had sacrificed them to the hope of popularity, by abolishing the civil prefectures of the major-generals,[447] and permitting a bill for again decimating the royalists to be thrown out of the house.[448] Their disgust and resentment, excited by an artful intriguer, who aspired at least to the succession of the protectorship, found scope in the new project of monarchy, naturally obnoxious to the prejudices of true fanatics, and who still fancied themselves to have contended for a republican liberty. We find that even Fleetwood, allied by marriage to Cromwell, and not involved in the discontent of the major-generals, in all the sincerity of his clouded understanding, revolted from the invidious title, and would have retired from service had it been assumed. There seems therefore reason to think that Cromwell's refusal of the crown was an inevitable mortification. But he undoubtedly did not lose sight of the object for the short remainder of his life.[449] The fundamental charter of the English commonwealth under the protectorship of Cromwell, had been the instrument of government, drawn up by the council of officers in December 1653, and approved with modifications by the parliament of the next year. It was now changed to the petition and advice, tendered to him by the present parliament in May 1657, which made very essential innovations in the frame of polity. Though he bore, as formerly, the name of lord protector, we may say, speaking according to theoretical classification, and without reference to his actual exercise of power, which was nearly the same, that the English government in the first period should be ranged in the order of republics, though with a chief magistrate at its head; but that from 1657 it became substantially a monarchy, and ought to be placed in that class, notwithstanding the unimportant difference in the style of its sovereign. The petition and advice had been compiled with a constant respect to that article, which conferred the royal dignity on the protector;[450] and when this was withdrawn at his request, the rest of the instrument was preserved with all its implied attributions of sovereignty. The style is that of subjects addressing a monarch; the powers it bestows, the privileges it claims, are supposed, according to the expressions employed, the one to be already his own, the other to emanate from his will. The necessity of his consent to laws, though nowhere mentioned, seems to have been taken for granted. An unlimited power of appointing a successor, unknown even to constitutional kingdoms, was vested in the protector. He was inaugurated with solemnities applicable to monarchs; and what of itself is a sufficient test of the monarchical and republican species of government, an oath of allegiance was taken by every member of parliament to the protector singly, without any mention of the commonwealth.[451] It is surely, therefore, no paradox to assert that Oliver Cromwell was _de facto_ sovereign of England, during the interval from June 1657, to his death in September 1658. The zealous opponents of royalty could not be insensible that they had seen it revive in everything except a title, which was not likely to remain long behind.[452] It was too late however to oppose the first magistrate's personal authority. But there remained one important point of contention, which the new constitution had not fully settled. It was therein provided that the parliament should consist of two houses; namely, the Commons, and what they always termed, with an awkward generality, the other house. This was to consist of not more than seventy, nor less than forty persons, to be nominated by the protector, and, as it stood at first, to be approved by the Commons. But before the close of the session, the court party prevailed so far as to procure the repeal of this last condition;[453] and Cromwell accordingly issued writs of summons to persons of various parties, a few of the ancient peers, a few of his adversaries, whom he hoped to gain over, or at least to exclude from the Commons, and of course a majority of his steady adherents. To all these he gave the title of Lords; and in the next session their assembly denominated itself the Lords' house.[454] This measure encountered considerable difficulty. The republican party, almost as much attached to that vote which had declared the House of Lords useless, as to that which had abolished the monarchy, and well aware of the intimate connection between the two, resisted the assumption of this aristocratic title, instead of that of the other house, which the petition and advice had sanctioned. The real peers feared to compromise their hereditary right by sitting in an assembly where the tenure was only during life; and disdained some of their colleagues, such as Pride and Hewson, low-born and insolent men, whom Cromwell had rather injudiciously bribed with this new nobility; though, with these few exceptions, his House of Lords was respectably composed. Hence, in the short session of January 1658, wherein the late excluded members were permitted to take their seats, so many difficulties were made about acknowledging the Lords' house by that denomination, that the protector hastily and angrily dissolved the parliament.[455] It is a singular part of Cromwell's system of policy, that he would neither reign with parliaments nor without them; impatient of an opposition which he was sure to experience, he still never seems to have meditated the attainment of a naked and avowed despotism. This was probably due to his observation of the ruinous consequences that Charles had brought on himself by that course, and his knowledge of the temper of the English, never content without the exterior forms of liberty, as well as to the suggestions of counsellors who were not destitute of concern for the laws. He had also his great design yet to accomplish, which could only be safely done under the sanction of a parliament. A very short time, accordingly, before his death, we find that he had not only resolved to meet once more the representatives of the nation, but was tampering with several of the leading officers to obtain their consent to an hereditary succession. The majority however of a council of nine, to whom he referred this suggestion, would only consent that the protector for the time being should have the power of nominating his successor; a vain attempt to escape from that regal form of government which they had been taught to abhor.[456] But a sudden illness, of a nature seldom fatal except to a constitution already shattered by fatigue and anxiety, rendered abortive all these projects of Cromwell's ambition. _Cromwell's death, and character._--He left a fame behind him proportioned to his extraordinary fortunes and to the great qualities which sustained them; still more perhaps the admiration of strangers than of his country, because that sentiment was less alloyed by hatred, which seeks to extenuate the glory that irritates it. The nation itself forgave much to one who had brought back the renown of her ancient story, the traditions of Elizabeth's age, after the ignominious reigns of her successors. This contrast with James and Charles in their foreign policy gave additional lustre to the era of the protectorate. There could not but be a sense of national pride to see an Englishman, but yesterday raised above the many, without one drop of blood in his veins which the princes of the earth could challenge as their own, receive the homage of those who acknowledged no right to power, and hardly any title to respect, except that of prescription. The sluggish pride of the court of Spain, the mean-spirited cunning of Mazarin, the irregular imagination of Christina, sought with emulous ardour the friendship of our usurper.[457] He had the advantage of reaping the harvest which he had not sown, by an honourable treaty with Holland, the fruit of victories achieved under the parliament. But he still employed the great energies of Blake in the service for which he was so eminently fitted; and it is just to say that the maritime glory of England may first be traced from the era of the commonwealth in a track of continuous light. The oppressed protestants in catholic kingdoms, disgusted at the lukewarmness and half-apostasy of the Stuarts, looked up to him as their patron and mediator.[458] Courted by the two rival monarchies of Europe, he seemed to threaten both with his hostility; and when he declared against Spain, and attacked her West India possessions with little pretence certainly of justice, but not by any means, as I conceive, with the impolicy sometimes charged against him, so auspicious was his star that the very failure and disappointment of that expedition obtained a more advantageous possession for England than all the triumphs of her former kings. Notwithstanding this external splendour, which has deceived some of our own, and most foreign writers, it is evident that the submission of the people to Cromwell was far from peaceable or voluntary. His strong and skilful grasp kept down a nation of enemies that must naturally, to judge from their numbers and inveteracy, have overwhelmed him. It required a dexterous management to play with the army, and without the army he could not have existed as sovereign for a day. Yet it seems improbable that, had Cromwell lived, any insurrection or conspiracy, setting aside assassination, could have overthrown a possession so fenced by systematic vigilance, by experienced caution, by the respect and terror that belonged to his name. The royalist and republican intrigues had gone on for several years without intermission; but every part of their designs was open to him; and it appears that there was not courage or rather temerity sufficient to make any open demonstration of so prevalent a disaffection.[459] The most superficial observers cannot have overlooked the general resemblances in the fortunes and character of Cromwell, and of him who, more recently and upon an ampler theatre, has struck nations with wonder and awe. But the parallel may be traced more closely than perhaps has hitherto been remarked. Both raised to power by the only merit which a revolution leaves uncontroverted and untarnished, that of military achievements, in that reflux of public sentiment, when the fervid enthusiasm of democracy gives place to disgust at its excesses and a desire of firm government. The means of greatness the same to both, the extinction of a representative assembly, once national, but already mutilated by violence, and sunk by its submission to that illegal force into general contempt. In military science or the renown of their exploits, we cannot certainly rank Cromwell by the side of him, for whose genius and ambition all Europe seemed the appointed quarry; but it may be said that the former's exploits were as much above the level of his contemporaries, and more the fruits of an original uneducated capacity. In civil government, there can be no adequate parallel between one who had sucked only the dregs of a besotted fanaticism, and one to whom the stores of reason and philosophy were open. But it must here be added that Cromwell, far unlike his antitype, never showed any signs of a legislative mind, or any desire to fix his renown on that noblest basis, the amelioration of social institutions. Both were eminent masters of human nature, and played with inferior capacities in all the security of powerful minds. Though both, coming at the conclusion of a struggle for liberty, trampled upon her claims, and sometimes spoke disdainfully of her name, each knew how to associate the interests of those who had contended for her with his own ascendancy, and made himself the representative of a victorious revolution. Those who had too much philosophy or zeal for freedom to give way to popular admiration for these illustrious usurpers, were yet amused with the adulation that lawful princes showered on them, more gratuitously in one instance, with servile terror in the other. Both too repaid in some measure this homage of the pretended great by turning their ambition towards those honours and titles which they knew to be so little connected with high desert. A fallen race of monarchs, which had made way for the greatness of each, cherished hopes of restoration by their power till each, by an inexpiable act of blood, manifested his determination to make no compromise with that line. Both possessed a certain coarse good nature and affability that covered the want of conscience, honour, and humanity; quick in passion, but not vindictive, and averse to unnecessary crimes. Their fortunes in the conclusion of life were indeed very different; one forfeited the affections of his people, which the other, in the character at least of their master, had never possessed; one furnished a moral to Europe by the continuance of his success, the other by the prodigiousness of his fall. A fresh resemblance arose afterwards, when the restoration of those royal families, whom their ascendant had kept under, revived ancient animosities, and excited new ones; those who from love of democratical liberty had borne the most deadly hatred to the apostates who had betrayed it, recovering some affection to their memory, out of aversion to a common enemy. Our English republicans have, with some exceptions, displayed a sympathy for the name of Cromwell; and I need not observe how remarkably this holds good in the case of his mighty parallel.[460] _Cromwell's son succeeds him_--The death of a great man, even in the most regular course of affairs, seems always to create a sort of pause in the movement of society; it is always a problem to be solved only by experiment, whether the mechanism of government may not be disordered by the shock, or have been deprived of some of its moving powers. But what change could be so great as that from Oliver Cromwell to his son! from one beneath the terror of whose name a nation had cowered and foreign princes grown pale, one trained in twenty eventful years of revolution, the first of his age in the field or in council, to a young man fresh from a country life, uneducated, unused to business, as little a statesman as a soldier, and endowed by nature with capacities by no means above the common. It seems to have been a mistake in Oliver that with the projects he had long formed in his eldest son's favour, he should have taken so little pains to fashion his mind and manners for the exercise of sovereign power, while he had placed the second in a very eminent and arduous station; or that, if he despaired of Richard's capacity, he should have trusted him to encounter those perils of disaffection and conspiracy which it had required all his own vigilance to avert. But, whatever might be his plans, the sudden illness which carried him from the world left no time for completing them. The Petition and Advice had simply empowered him to appoint a successor, without prescribing the mode. It appeared consonant to law and reason that so important a trust should be executed in a notorious manner, and by a written instrument; or, if a verbal nomination might seem sufficient, it was at least to be expected that this should be authenticated by solemn and indisputable testimony. No proof however was ever given of Richard's appointment by his father, except a recital in the proclamation of the privy council, which, whether well founded or otherwise, did not carry conviction to the minds of the people; and this, even if we call it but an informality, aggravated the numerous legal and natural deficiencies of his title to the government.[461] This very difference however in the personal qualifications of the father and the son, procured the latter some friends whom the former had never been able to gain. Many of the presbyterian party began to see the finger of God, as they called it, in his peaceable accession, and to think they owed subjection to one who came in neither by regicide, nor hypocrisy, nor violence.[462] Some cool-headed and sincere friends of liberty entertained similar opinions. Pierrepont, one of the wisest men in England, who had stood aloof from the protector's government till the scheme of restoring monarchy came into discussion, had great hopes, as a writer of high authority informs us, of settling the nation in the enjoyment of its liberties under the young man; who was "so flexible," says that writer, "to good counsels, that there was nothing desirable in a prince which might not have been hoped in him, but a great spirit and a just title; the first of which sometimes doth more hurt than good in a sovereign; the latter would have been supplied by the people's deserved approbation." Pierrepont believed that the restoration of the ancient family could not be effected without the ruin of the people's liberty, and of all who had been its champions; so that no royalist, he thought, who had any regard to his country, would attempt it: while this establishment of monarchy in Richard's person might reconcile that party, and compose all differences among men of weight and of zeal for the public good.[463] He acted accordingly on those principles; and became, as well as his friend St. John, who had been discountenanced by Oliver, a steady supporter of the young protector's administration. These two, with Thurloe, Whitelock, Lord Broghill, and a very few more, formed a small phalanx of experienced counsellors around his unstable throne. And I must confess that their course of policy in sustaining Richard's government appears to me the most judicious that, in the actual circumstances, could have been adopted. Pregnant as the restoration of the exiled family was with incalculable dangers, the English monarchy would have revived with less lustre in the eyes of the vulgar, but with more security for peace and freedom, in the line of Cromwell. Time would have worn away the stains of ignoble birth and criminal usurpation; and the young man, whose misfortune has subjected him to rather an exaggerated charge of gross incapacity, would probably have reigned as well as most of those who are born in the purple.[464] But this termination was defeated by the combination of some who knew not what they wished, and of some who wished what they could never attain. The general officers who had been well content to make Cromwell the first of themselves, or greater than themselves by their own creation, had never forgiven his manifest design to reign over them as one of a superior order, and owing nothing to their pleasure. They had begun to cabal during his last illness. Though they did not oppose Richard's succession, they continued to hold meetings, not quite public, but exciting intense alarm in his council. As if disdaining the command of a clownish boy, they proposed that the station of lord general should be separated from that of protector, with the power over all commissions in the army, and conferred on Fleetwood; who, though his brother-in-law, was a certain instrument in their hands. The vain ambitious Lambert, aspiring, on the credit of some military reputation, to wield the sceptre of Cromwell, influenced this junto; while the commonwealth's party, some of whom were, or had been, in the army, drew over several of these ignorant and fanatical soldiers. Thurloe describes the posture of affairs in September and October, while all Europe was admiring the peaceable transmission of Oliver's power, as most alarming; and it may almost be said that Richard had already fallen when he was proclaimed the lord protector of England.[465] _A parliament called._--It was necessary to summon a parliament on the usual score of obtaining money. Lord Broghill had advised this measure immediately on Oliver's death,[466] and perhaps the delay might be rather prejudicial to the new establishment. But some of the council feared a parliament almost as much as they did the army. They called one, however, to meet Jan. 27, 1659, issuing writs in the ordinary manner to all boroughs which had been accustomed to send members, and consequently abandoning the reformed model of Cromwell. This Ludlow attributes to their expectation of greater influence among the small boroughs; but it may possibly be ascribed still more to a desire of returning by little and little to the ancient constitution, by eradicating the revolutionary innovations. The new parliament consisted of courtiers, as the Cromwell party were always denominated, of presbyterians, among whom some of cavalier principles crept in, and of republicans; the two latter nearly balancing, with their united weight, the ministerial majority.[467] They began with an oath of allegiance to the protector, as presented by the late parliament, which, as usual in such cases, his enemies generally took without scruple.[468] But upon a bill being offered for the recognition of Richard as the undoubted lord protector and chief magistrate of the commonwealth, they made a stand against the word recognise, which was carried with difficulty, and caused him the mortification of throwing out the epithet undoubted.[469] They subsequently discussed his negative voice in passing bills, which had been purposely slurred over in the Petition and Advice; but now everything was disputed. The thorny question as to the powers and privileges of the other house came next into debate. It was carried by 177 to 113, to transact business with them. To this resolution an explanation was added, that it was not thereby intended to exclude such peers as had been faithful to the parliament, from their privilege of being duly summoned to be members of that house. The court supporting this absurd proviso, which confounded the ancient and modern systems of government, carried it by the small majority of 195 to 188.[470] They were stronger in rejecting an important motion, to make the approbation of the Commons a preliminary to their transacting business with the persons now sitting in the other house as a house of parliament, by 183 voices to 146. But the opposition succeeded in inserting the words "during the present parliament," which left the matter still unsettled.[471] The sitting of the Scots and Irish members was also unsuccessfully opposed. Upon the whole, the court party, notwithstanding this coalition of very heterogeneous interests against them, were sufficiently powerful to disappoint the hopes which the royalist intriguers had entertained. A strong body of lawyers, led by Maynard, adhered to the government, which was supported also on some occasions by a part of the presbyterian interest, or, as then called, the moderate party; and Richard would probably have concluded the session with no loss of power, if either he or his parliament could have withstood the more formidable cabal of Wallingford House. This knot of officers, Fleetwood, Desborough, Berry, Sydenham, being the names most known among them, formed a coalition with the republican faction, who despaired of any success in parliament. The dissolution of that assembly was the main article of this league. Alarmed at the notorious caballing of the officers, the Commons voted that, during the sitting of the parliament, there should be no general council, or meeting of the officers of the army without leave of the protector and of both houses.[472] Such a vote could only accelerate their own downfall. Three days afterwards, the junto of Wallingford House insisted with Richard that he should dissolve parliament; to which, according to the advice of most of his council, and perhaps by an overruling necessity, he gave his consent.[473] This was immediately followed by a declaration of the council of officers, calling back the Long Parliament, such as it had been expelled in 1653, to those seats which had been filled meanwhile by so many transient successors.[474] It is not in general difficult for an armed force to destroy a government; but something else than the sword is required to create one. The military conspirators were destitute of any leader whom they would acknowledge, or who had capacity to go through the civil labours of sovereignty; Lambert alone excepted, who was lying in wait for another occasion. They might have gone on with Richard, as a pageant of nominal authority. But their new allies, the commonwealth's men, insisted upon restoring the Long Parliament.[475] It seemed now the policy, as much as duty, of the officers to obey that civil power they had set up. For to rule ostensibly was, as I have just observed, an impracticable scheme. But the contempt they felt for their pretended masters, and even a sort of necessity arising out of the blindness and passion of that little oligarchy, drove them to a step still more ruinous to their cause than that of deposing Richard, the expulsion once more of that assembly, now worn out and ridiculous in all men's eyes, yet seeming a sort of frail protection against mere anarchy, and the terror of the sword. Lambert, the chief actor in this last act of violence, and indeed many of the rest, might plead the right of self-defence. The prevailing faction in the parliament, led by Haslerig, a bold and headstrong man, perceived that, with very inferior pretensions, Lambert was aiming to tread in the steps of Cromwell; and, remembering their negligence of opportunities, as they thought, in permitting the one to overthrow them, fancied that they would anticipate the other. Their intemperate votes cashiering Lambert, Desborough, and other officers, brought on, as every man of more prudence than Haslerig must have foreseen, an immediate revolution that crushed once more their boasted commonwealth.[476] They revived again a few months after, not by any exertion of the people, who hated alike both parties, in their behalf, but through the disunion of their real masters, the army, and vented the impotent and injudicious rage of a desperate faction on all who had not gone every length on their side, till scarce any man of eminence was left to muster under the standard of Haslerig and his little knot of associates.[477] _Impossibility of establishing a republic._--I can by no means agree with those who find in the character of the English nation some absolute incompatibility with a republican constitution of government. Under favouring circumstances, it seems to me not at all incredible that such a polity might have existed for many ages in great prosperity, and without violent convulsion. For the English are, as a people, little subject to those bursts of passion which inflame the more imaginative multitude of southern climates, and render them both apt for revolutions, and incapable of conducting them. Nor are they again of that sluggish and stationary temper, which chokes all desire of improvement, and even all zeal for freedom and justice, through which some free governments have degenerated into corrupt oligarchies. The most conspicuously successful experiment of republican institutions (and those far more democratical than, according to the general theory of politics, could be reconciled with perfect tranquillity) has taken place in a people of English original; and though much must here be ascribed to the peculiarly fortunate situation of the nation to which I allude, we can hardly avoid giving some weight to the good sense and well-balanced temperament, which have come in their inheritance with our laws and our language. But the establishment of free commonwealths depends much rather on temporary causes, the influence of persons and particular events, and all those intricacies in the course of Providence which we term accident, than on any general maxims that can become the basis of prior calculation. In the year 1659, it is manifest that no idea could be more chimerical than that of a republican settlement in England. The name, never familiar or venerable in English ears, was grown infinitely odious; it was associated with the tyranny of ten years, the selfish rapacity of the Rump, the hypocritical despotism of Cromwell, the arbitrary sequestrations of committee-men, the iniquitous decimations of military prefects, the sale of British citizens for slavery in the West Indies, the blood of some shed on the scaffold without legal trial, the tedious imprisonment of many with denial of the habeas corpus, the exclusion of the ancient gentry, the persecution of the Anglican church, the bacchanalian rant of sectaries, the morose preciseness of puritans, the extinction of the frank and cordial joyousness of the national character. Were the people again to endure the mockery of the good old cause, as the commonwealth's men affected to style the interests of their little faction, and be subject to Lambert's notorious want of principle, or to Vane's contempt of ordinances (a godly mode of expressing the same thing), or to Haslerig's fury, or to Harrison's fanaticism, or to the fancies of those lesser schemers, who in this utter confusion and abject state of their party, were amusing themselves with plans of perfect commonwealths, and debating whether there should be a senate as well as a representation; whether a given number should go out by rotation; and all those details of political mechanism so important in the eyes of theorists?[478] Every project of this description must have wanted what alone could give it either the pretext of legitimate existence, or the chance of permanency, popular consent; the republican party, if we exclude those who would have had a protector, and those fanatics who expected the appearance of Jesus Christ, was incalculably small; not, perhaps, amounting in the whole nation to more than a few hundred persons. _Intrigues of the royalists._--The little court of Charles at Brussels watched with trembling hope these convulsive struggles of their enemies. During the protectorship of Oliver, their best chance appeared to be, that some of the numerous schemes for his assassination might take effect. Their correspondence indeed, especially among the presbyterian or neutral party, became more extensive;[479] but these men were habitually cautious: and the Marquis of Ormond, who went over to England in the beginning of 1658, though he reported the disaffection to be still more universal than he had expected, was forced to add that there was little prospect of a rising until foreign troops should be landed in some part of the country; an aid which Spain had frequently promised, but, with an English fleet at sea, could not very easily furnish.[480] The death of their puissant enemy brightened the visions of the royalists. Though the apparent peaceableness of Richard's government gave them some mortification, they continued to spread their toils through zealous emissaries, and found a very general willingness to restore the ancient constitution under its hereditary sovereign. Besides the cavaliers, who, though numerous and ardent, were impoverished and suspected, the chief presbyterians, Lords Fairfax and Willoughby, the Earls of Manchester and Denbigh, Sir William Waller, Sir George Booth, Sir Ashley Cooper, Mr. Popham of Somerset, Mr. Howe of Glocester, Sir Horatio Townshend of Norfolk, with more or less of zeal and activity, pledged themselves to the royal cause.[481] Lord Fauconberg, a royalist by family, who had married a daughter of Cromwell, undertook the important office of working on his brothers-in-law, Richard and Henry, whose position, in respect to the army and republican party, was so hazardous. It seems, in fact, that Richard, even during his continuance in power, had not refused to hear the king's agents,[482] and hopes were entertained of him: yet at that time even he could not reasonably be expected to abandon his apparent interests. But soon after his fall from power, while his influence, or rather that of his father's memory, was still supposed considerable with Montagu, Monk, and Lockhart, they negotiated with him to procure the accession of those persons, and of his brother Henry, for a pension of £20,000 a year, and a title.[483] It soon appeared however that those prudent veterans of revolution would not embark under such a pilot, and that Richard was not worth purchasing on the lowest terms. Even Henry Cromwell, with whom a separate treaty had been carried on, and who is said to have determined at one time to proclaim the king at Dublin, from want of courage, or, as is more probable, of seriousness in what must have seemed so unnatural an undertaking, submitted quietly to the vote of parliament that deprived him of the command of Ireland.[484] _Conspiracy of 1659._--The conspiracy, if indeed so general a concert for the restoration of ancient laws and liberties ought to have so equivocal an appellation, became ripe in the summer of 1659. The royalists were to appear in arms in different quarters; several principal towns to be seized: but as the moment grew nigh, the courage of most began to fail. Twenty years of depression and continual failure mated the spirits of the cavaliers. The shade of Cromwell seemed to hover over and protect the wreck of his greatness. Sir George Booth, almost alone, rose in Cheshire; every other scheme, intended to be executed simultaneously, failing through the increased prudence of those concerned, or the precautions taken by the government on secret intelligence of the plots; and Booth, thus deserted, made less resistance to Lambert than perhaps was in his power.[485] This discomfiture, of course, damped the expectations of the king's party. The presbyterians thought themselves ill-used by their new allies, though their own friends had been almost equally cautious.[486] Sir Richard Willis, an old cavalier, and in all the secrets of their conspiracy, was detected in being a spy both of Cromwell and of the new government; a discovery which struck consternation into the party, who could hardly trust any one else with greater security.[487] In a less favourable posture of affairs, these untoward circumstances might have ruined Charles's hopes; they served, as it was, to make it evident that he must look to some more efficacious aid than a people's good wishes for his restoration. The royalists in England, who played so deep a stake on the king's account, were not unnaturally desirous that he should risk something in the game, and continually pressed that either he or one of his brothers would land on the coast. His standard would become a rallying-point for the well-affected, and create such a demonstration of public sentiment as would overthrow the present unstable government. But Charles, not by nature of a chivalrous temper, shrunk from an enterprise which was certainly very hazardous, unless he could have obtained a greater assistance of troops from the Low Countries than was to be hoped.[488] He was as little inclined to permit the Duke of York's engaging in it, on account of the differences that had existed between them, and his knowledge of an intrigue that was going forward in England, principally among the catholics, but with the mischievous talents of the Duke of Buckingham at its head, to set up the duke instead of himself.[489] He gave, however, fair words to his party, and continued for some time on the French coast, as if waiting for his opportunity. It was in great measure, as I suspect, to rid himself of this importunity, that he set out on his long and very needless journey to the foot of the Pyrenees. Thither the two monarchs of France and Spain, wearied with twenty years of hostility without a cause and without a purpose, had sent their minister to conclude the celebrated treaty which bears the name of those mountains. Charles had long cherished hopes that the first fruits of their reconciliation would be a joint armament to place him on the English throne: many of his adherents almost despaired of any other means of restoration. But Lewis de Haro was a timid statesman, and Mazarin a cunning one: there was little to expect from their generosity; and the price of assistance might probably be such as none but desperate and unscrupulous exiles would offer, and the English nation would with unanimous indignation reject. It was well for Charles that he contracted no public engagement with these foreign powers, whose co-operation must either have failed of success, or have placed on his head a degraded and unstable crown. The full toleration of popery in England, its establishment in Ireland, its profession by the sovereign and his family, the surrender of Jamaica, Dunkirk, and probably the Norman Islands, were conditions on which the people might have thought the restoration of the Stuart line too dearly obtained. It was a more desirable object for the king to bring over, if possible, some of the leaders of the commonwealth. Except Vane, accordingly, and the decided republicans, there was hardly any man of consequence whom his agents did not attempt, or, at least, from whom they did not entertain hopes. There stood at this time conspicuous above the rest, not all of them in ability, but in apparent power of serving the royal cause by their defection, Fleetwood, Lambert, and Monk. The first had discovered, as far as his understanding was capable of perceiving anything, that he had been the dupe of more crafty men in the cabals against Richard Cromwell, whose complete fall from power he had neither designed nor foreseen. In pique and vexation, he listened to the overtures of the royalist agents, and sometimes, if we believe their assertions, even promised to declare for the king.[490] But his resolutions were not to be relied upon, nor was his influence likely to prove considerable; though from his post of lieutenant-general of the army, and long accustomed precedence, he obtained a sort of outward credit far beyond his capacity. Lambert was of a very different stamp; eager, enterprising, ambitious, but destitute of the qualities that inspire respect or confidence. Far from the weak enthusiasm of Fleetwood, he gave offence by displaying less show of religion than the temper of his party required, and still more by a current suspicion that his secret faith was that of the church of Rome, to which the partiality of the catholics towards him gave support.[491] The crafty unfettered ambition of Lambert rendered it not unlikely that--finding his own schemes of sovereignty impracticable, he would make terms with the king; and there were not wanting those who recommended the latter to secure his services by the offer of marrying his daughter;[492] but it does not appear that any actual overtures were made on either side. _Interference of Monk._--There remained one man of eminent military reputation, in the command of a considerable insulated army, to whom the royalists anxiously looked with alternate hope and despondency. Monk's early connections were with the king's party, among whom he had been defeated and taken prisoner by Fairfax at Namptwich. Yet even in this period of his life he had not escaped suspicions of disaffection, which he effaced by continuing in prison till the termination of the war in England. He then accepted a commission from the parliament to serve against the Irish; and now falling entirely into his new line of politics, became strongly attached to Cromwell, by whom he was left in the military government, or rather viceroyalty of Scotland, which he had reduced to subjection, and kept under with a vigorous hand. Charles had once, it is said, attempted to seduce him by a letter from Cologne, which he instantly transmitted to the protector.[493] Upon Oliver's death, he wrote a very sensible letter to Richard Cromwell, containing his advice for the government. He recommends him to obtain the affections of the moderate presbyterian ministers, who have much influence over the people, to summon to his House of Lords the wisest and most faithful of the old nobility and some of the leading gentry, to diminish the number of superior officers in the army, by throwing every two regiments into one, and to take into his council as his chief advisers Whitelock, St. John, Lord Broghill, Sir Richard Onslow, Pierrepont, and Thurloe.[494] The judiciousness of this advice is the surest evidence of its sincerity, and must leave no doubt on our minds that Monk was at that time very far from harbouring any thoughts of the king's restoration. But when, through the force of circumstances and the deficiencies in the young protector's capacity, he saw the house of Cromwell for ever fallen, it was for Monk to consider what course he should follow, and by what means the nation was to be rescued from the state of anarchy that seemed to menace it. That very different plans must have passed through his mind before he commenced his march from Scotland, it is easy to conjecture; but at what time his determination was finally taken, we cannot certainly pronounce.[495] It would be the most honourable supposition to believe that he was sincere in those solemn protestations of adherence to the commonwealth which he poured forth, as well during his march as after his arrival in London; till discovering, at length, the popular zeal for the king's restoration, he concurred in a change which it would have been absurd, and perhaps impracticable, to resist. This however seems not easily reconcilable to Monk's proceedings in new-modelling his army, and confiding power, both in Scotland and England, to men of known intentions towards royalty; nor did his assurances of support to the republican party become less frequent or explicit at a time when every one must believe that he had taken his resolution, and even after he had communicated with the king. I incline therefore, upon the whole, to believe that Monk, not accustomed to respect the Rump Parliament, and incapable, both by his temperament and by the course of his life, of any enthusiasm for the name of liberty, had satisfied himself as to the expediency of the king's restoration from the time that the Cromwells had sunk below his power to assist them; though his projects were still subservient to his own security, which he was resolved not to forfeit by any premature declaration or unsuccessful enterprise. If the coalition of cavaliers and presbyterians, and the strong bent of the entire nation, had not convinced this wary dissembler that he could not fail of success, he would have continued true to his professions as the general of a commonwealth, content with crushing his rival Lambert, and breaking that fanatical interest which he most disliked. That he aimed at such a sovereignty as Cromwell had usurped has been the natural conjecture of many, but does not appear to me either warranted by any presumptive evidence, or consonant to the good sense and phlegmatic temper of Monk. At the moment when, with a small but veteran army of 7000 men, he took up his quarters in London, it seemed to be within his arbitrament which way the scale should preponderate. On one side were the wishes of the nation, but restrained by fear; on the other, established possession, maintained by the sword, but rendered precarious by disunion and treachery. It is certainly very possible that, by keeping close to the parliament, Monk might have retarded, at least for a considerable time, the great event which has immortalised him. But it can hardly be said that the king's restoration was rather owing to him than to the general sentiments of the nation and almost the necessity of circumstances, which had already made every judicious person anticipate the sole termination of our civil discord which they had prepared. Whitelock, who, incapable of refusing compliance with the ruling power, had sat in the committee of safety established in October 1659 by the officers who had expelled the parliament, has recorded a curious anecdote, whence we may collect how little was wanting to prevent Monk from being the great mover in the restoration. He had for some time, as appears by his journal, entertained a persuasion that the general meditated nothing but the king's return, to which he was doubtless himself well inclined, except from some apprehension for the public interest, and some also for his own. This induced him to have a private conference with Fleetwood, which he enters as of the 22nd December 1659, wherein, after pointing out the probable designs of Monk, he urged him either to take possession of the Tower, and declare for a free parliament, in which he would have the assistance of the city, or to send some trusty person to Breda, who might offer to bring in the king upon such terms as should be settled. Both these propositions were intended as different methods of bringing about a revolution, which he judged to be inevitable. "By this means," he contended, "Fleetwood might make terms with the king for preservation of himself and his friends, and of that cause, in a good measure, in which they had been engaged; but, if it were left to Monk, they and all that had been done would be left to the danger of destruction. Fleetwood then asked me, 'If I would be willing to go myself upon this employment?' I answered, 'that I would go, if Fleetwood thought fit to send me.' And after much other discourse to this effect, Fleetwood seemed fully satisfied to send me to the king, and desired me to go and prepare myself forthwith for the journey; and that in the meantime Fleetwood and his friends would prepare the instructions for me, so that I might begin my journey this evening or to-morrow morning early. "I going away from Fleetwood, met Vane, Desborough, and Berry in the next room, coming to speak with Fleetwood, who thereupon desired me to stay a little; and I suspected what would be the issue of their consultation, and within a quarter of an hour Fleetwood came to me and in much passion said to me, 'I cannot do it, I cannot do it.' I desired his reason why he could not do it. He answered, 'Those gentlemen have remembered me; and it is true, that I am engaged not to do any such thing without my Lord Lambert's consent.' I replied, 'that Lambert was at too great a distance to have his consent to this business, which must be instantly acted.' Fleetwood again said, 'I cannot do it without him.' Then I said, 'You will ruin yourself and your friends.' He said, 'I cannot help it.' Then I told him I must take my leave, and so we parted."[496] Whatever might have been in the power of Monk, by adhering to his declarations of obedience to the parliament, it would have been too late for him, after consenting to the restoration of the secluded members to their seats on February 21, 1660, to withstand the settlement which it seems incredible that he should not at that time have desired. That he continued, for at least six weeks afterwards, in a course of astonishing dissimulation, so as to deceive, in a great measure, almost all the royalists, who were distrusting his intentions at the very moment when he made his first and most private tender of service to the king through Sir John Grenville about the beginning of April, might at first seem rather to have proceeded from a sort of inability to shake off his inveterate reservedness, than from consummate prudence and discretion. For any sudden risings in the king's favour, or an intrigue in the council of state, might easily have brought about the restoration without his concurrence; and, even as it was, the language held in the House of Commons before their dissolution, the votes expunging all that appeared on their journals against the regal government and the House of Lords,[497] and, above all, the course of the elections for the new parliament, made it sufficiently evident that the general had delayed his assurances of loyalty till they had lost a part of their value. It is however a full explanation of Monk's public conduct, that he was not secure of the army, chiefly imbued with fanatical principles, and bearing an inveterate hatred towards the name of Charles Stuart. A correspondent of the king writes to him on the 28th of March: "the army is not yet in a state to hear your name publicly."[498] In the beginning of that month, many of the officers, instigated by Haslerig and his friends, had protested to Monk against the proceedings of the house, insisting that they should abjure the king and House of Lords. He repressed their mutinous spirit, and bade them obey the parliament, as he should do.[499] Hence he redoubled his protestations of abhorrence of monarchy, and seemed for several weeks, in exterior demonstrations, rather the grand impediment to the king's restoration, than the one person who was to have the credit of it.[500] Meanwhile he silently proceeded in displacing the officers whom he could least trust, and disposing the regiments near to the metropolis, or at a distance, according to his knowledge of their tempers; the parliament having given him a commission as lord general of all the forces in the three kingdoms.[501] The commissioners appointed by parliament for raising the militia in each county were chiefly gentlemen of the presbyterian party; and there seemed likely to be such a considerable force under their orders as might rescue the nation from its ignominious servitude to the army. In fact, some of the royalists expected that the great question would not be carried without an appeal to the sword.[502] The delay of Monk in privately assuring the king of his fidelity is still not easy to be explained, but may have proceeded from a want of confidence in Charles's secrecy, or that of his counsellors. It must be admitted that Lord Clarendon, who has written with some minuteness and accuracy this important part of his history, has more than insinuated (especially as we now read his genuine language, which the ill faith of his original editors had shamefully garbled) that Monk entertained no purposes in the king's favour till the last moment; but a manifest prejudice that shows itself in all his writings against the general, derived partly from offence at his extreme reserve and caution during this period, partly from personal resentment of Monk's behaviour at the time of his own impeachment, greatly takes off from the weight of the noble historian's judgment.[503] _Difficulties about the restoration._--The months of March and April 1660 were a period of extreme inquietude, during which every one spoke of the king's restoration as imminent, yet none could distinctly perceive by what means it would be effected, and much less how the difficulties of such a settlement could be overcome.[504] As the moment approached, men turned their attention more to the obstacles and dangers that lay in their way. The restoration of a banished family, concerning whom they knew little, and what they knew not entirely to their satisfaction, with ruined, perhaps revengeful, followers; the returning ascendancy of a distressed party, who had sustained losses that could not be repaired without fresh changes of property, injuries that could not be atoned without fresh severities; the conflicting pretensions of two churches, one loth to release its claim, the other to yield its possession; the unsettled dissensions between the crown and parliament, suspended only by civil war and usurpation; all seemed pregnant with such difficulties that prudent men could hardly look forward to the impending revolution without some hesitation and anxiety.[505] Hence Pierrepont, one of the wisest statesmen in England, though not so far implicated in past transactions as to have much to fear, seems never to have overcome his repugnance to the recall of the king; and I am by no means convinced that the slowness of Monk himself was not in some measure owing to his sense of the embarrassments that might attend that event. The presbyterians, generally speaking, had always been on their guard against an unconditional restoration. They felt much more of hatred to the prevailing power than of attachment to the house of Stuart; and had no disposition to relinquish, either as to church or state government, those principles for which they had fought against Charles the First. Hence they began, from the very time that they entered into the coalition, that is, the spring and summer of 1659, to talk of the treaty of Newport, as if all that had passed since their vote of 5th December 1648, that the king's concessions were a sufficient ground whereon to proceed to the settlement of the kingdom, had been like an hideous dream, from which they had awakened to proceed exactly in their former course.[506] The council of state, appointed on the 23rd of February, two days after the return of the secluded members, consisted principally of this party. And there can, I conceive, be no question that, if Monk had continued his neutrality to the last, they would, in conjunction with the new parliament, have sent over propositions for the king's acceptance. Meetings were held of the chief presbyterian lords, Manchester, Northumberland, Bedford, Say, with Pierrepont (who finding it too late to prevent the king's return, endeavoured to render it as little dangerous as possible), Hollis, Annesley, Sir William Waller, Lewis, and other leaders of that party. Monk sometimes attended on these occasions, and always urged the most rigid limitations.[507] His sincerity in this was the less suspected, that his wife, to whom he was notoriously submissive, was entirely presbyterian, though a friend to the king; and his own preference of that sect had always been declared in a more consistent and unequivocal manner than was usual to his dark temper. These projected limitations, which but a few weeks before Charles would have thankfully accepted, seemed now intolerable; so rapidly do men learn, in the course of prosperous fortune, to scorn what they just before hardly presumed to expect. Those seemed his friends, not who desired to restore him, but who would do so at the least sacrifice of his power and pride. Several of the council, and others in high posts, sent word that they would resist the imposition of unreasonable terms.[508] Monk himself redeemed his ambiguous and dilatory behaviour by taking the restoration, as it were, out of the hands of the council, and suggesting the judicious scheme of anticipating their proposals by the king's letter to the two houses of parliament. For this purpose he had managed, with all his dissembling pretences of commonwealth principles, or, when he was (as it were) compelled to lay them aside, of insisting on rigorous limitations, to prevent any overtures from the council, who were almost entirely presbyterian, before the meeting of parliament, which would have considerably embarrassed the king's affairs.[509] The elections meantime had taken a course which the faction now in power by no means regarded with satisfaction. Though the late House of Commons had passed a resolution that no person who had assisted in any war against the parliament since 1642, unless he should since have manifested his good affection towards it, should be capable of being elected; yet this, even if it had been regarded, as it was not, by the people, would have been a feeble barrier against the royalist party, composed in a great measure of young men who had grown up under the commonwealth, and of those who, living in the parliamentary counties during the civil war, had paid a reluctant obedience to its power.[510] The tide ran so strongly for the king's friends, that it was as much as the presbyterians could effect, with the weight of government in their hands, to obtain about an equality of strength with the cavaliers in the convention parliament.[511] It has been a frequent reproach to the conductors of this great revolution, that the king was restored without those terms and limitations which might secure the nation against his abuse of their confidence; and this, not only by contemporaries who had suffered by the political and religious changes consequent on the restoration, or those who, in after times, have written with some prepossession against the English church and constitutional monarchy, but by the most temperate and reasonable men; so that it has become almost regular to cast on the convention parliament, and more especially on Monk, the imputation of having abandoned public liberty, and brought on, by their inconsiderate loyalty or self-interested treachery, the misgovernment of the two last Stuarts, and the necessity of their ultimate expulsion. But, as this is a very material part of our history, and those who pronounce upon it have not always a very distinct notion either of what was or what could have been done, it may be worth while to consider the matter somewhat more analytically; confining myself, it is to be observed, in the present chapter, to what took place before the king's personal assumption of the government on the 29th of May 1660. The subsequent proceedings of the convention parliament fall within another period. We may remark, in the first place, that the unconditional restoration of Charles the Second is sometimes spoken of in too hyperbolical language, as if he had come in as a sort of conqueror, with the laws and liberties of the people at his discretion. Yet he was restored to nothing but the bounded prerogatives of a king of England; bounded by every ancient and modern statute, including those of the long parliament, which had been enacted for the subjects' security. If it be true, as I have elsewhere observed, that the long parliament, in the year 1641, had established, in its most essential parts, our existing constitution, it can hardly be maintained that fresh limitations and additional securities were absolutely indispensable, before the most fundamental of all its principles, the government by King, Lords, and Commons, could be permitted to take its regular course. Those who so vehemently reprobate the want of conditions at the restoration would do well to point out what conditions should have been imposed, and what mischiefs they can probably trace from their omission.[512] They should be able also to prove that, in the circumstances of the time, it was quite as feasible and convenient to make certain secure and obligatory provisions the terms of the king's restoration, as seems to be taken for granted. _Plan of reviving the treaty of Newport inexpedient._--The chief presbyterians appear to have considered the treaty of Newport, if not as fit to be renewed in every article, yet at least as the basis of the compact into which they were to enter with Charles the Second.[513] But were the concessions wrested in this treaty from his father, in the hour of peril and necessity, fit to become the permanent rules of the English constitution? Turn to the articles prescribed by the long parliament in that negotiation. Not to mention the establishment of a rigorous presbytery in the church, they had insisted on the exclusive command of all forces by land and sea for twenty years, with the sole power of levying and expending the monies necessary for their support; on the nomination of the principal officers of state and of the judges during the same period; and on the exclusion of the king's adherents from all trust or political power. Admit even that the insincerity and arbitrary principles of Charles the First had rendered necessary such extraordinary precautions, was it to be supposed that the executive power should not revert to his successor? Better it were, beyond comparison, to maintain the perpetual exclusion of his family than to mock them with such a titular crown, the certain cause of discontent and intrigue, and to mingle premature distrust with their professions of affection. There was undoubtedly much to apprehend from the king's restoration; but it might be expected that a steady regard for public liberty in the parliament and the nation would obviate that danger without any momentous change of the constitution; or that, if such a sentiment should prove unhappily too weak, no guarantees of treaties or statutes would afford a genuine security. _Difficulty of framing conditions._--If, however, we were to be convinced that the restoration was effected without a sufficient safeguard against the future abuses of royal power, we must still allow, on looking attentively at the circumstances, that there were very great difficulties in the way of any stipulations for that purpose. It must be evident that any formal treaty between Charles and the English government, as it stood in April 1660, was inconsistent with their common principle. That government was, by its own declarations, only _de facto_, only temporary; the return of the secluded members to their seats, and the votes they subsequently passed, held forth to the people that everything done since the force put on the house in December 1648 was by an usurpation; the restoration of the ancient monarchy was implied in all recent measures, and was considered as out of all doubt by the whole kingdom. But between a king of England and his subjects no treaty, as such, could be binding; there was no possibility of entering into stipulations with Charles, though in exile, to which a court of justice would pay the slightest attention, except by means of acts of parliament. It was doubtless possible that the council of state might have entered into a secret agreement with him on certain terms, to be incorporated afterwards into bills, as at the treaty of Newport. But at that treaty his father, though in prison, was the acknowledged sovereign of England; and it is manifest that the king's recognition must precede the enactment of any law. It is equally obvious that the contracting parties would no longer be the same, and that the conditions that seemed indispensable to the council of state, might not meet with the approbation of parliament. It might occur to an impatient people, that the former were not invested with such legal or permanent authority as could give them any pretext for bargaining with the king, even in behalf of public liberty. But, if the council of state, or even the parliament on its first meeting, had resolved to tender any hard propositions to the king, as the terms, if not of his recognition, yet of his being permitted to exercise the royal functions, was there not a possibility that he might demur about their acceptance, that a negotiation might ensue to procure some abatement, that, in the interchange of couriers between London and Brussels, some weeks at least might be whiled away? Clarendon, we are sure, inflexible and uncompromising of his master's honour, would have dissuaded such enormous sacrifices as had been exacted from the late king. And during this delay, while no legal authority would have subsisted, so that no officer could have collected the taxes or executed process without liability to punishment, in what a precarious state would the parliament have stood! On the one hand, the nation almost maddened with the intoxication of reviving loyalty, and rather prone to cast at the king's feet the privileges and liberties it possessed than to demand fresh security for them, might insist upon his immediate return, and impair the authority of parliament. On the other hand, the army, desperately irreconcilable to the name of Stuart, and sullenly resenting the hypocrisy that had deluded them, though they knew no longer where to seek a leader, were accessible to the furious commonwealth's men, who, rushing as it were with lighted torches along their ranks, endeavoured to rekindle a fanaticism that had not quite consumed its fuel.[514] The escape of Lambert from the Tower had struck a panic into all the kingdom; some such accident might again furnish a rallying point for the disaffected, and plunge the country into an unfathomable abyss of confusion. Hence, the motion of Sir Matthew Hale, in the convention parliament, to appoint a committee who should draw up propositions to be sent over for the king's acceptance, does not appear to me well timed and expedient; nor can I censure Monk for having objected to it.[515] The business in hand required greater despatch. If the king's restoration was an essential blessing, it was not to be thrown away in the debates of a committee. A wary, scrupulous, conscientious English lawyer, like Hale, is always wanting in the rapidity and decision necessary for revolutions, though he may be highly useful in preventing them from going too far. It is, I confess, more probable that the king would have accepted almost any conditions tendered to him; such at least would have been the advice of most of his counsellors; and his own conduct in Scotland was sufficient to show how little any sense of honour or dignity would have stood in his way. But on what grounds did his English friends, nay some of the presbyterians themselves, advise his submission to the dictates of that party? It was in the expectation that the next free parliament, summoned by his own writ, would undo all this work of stipulation, and restore him to an unfettered prerogative. And this expectation there was every ground, from the temper of the nation, to entertain. Unless the convention parliament had bargained for its own perpetuity, or the privy council had been made immovable, or a military force, independent of the Crown, had been kept up to overawe the people (all of them most unconstitutional and abominable usurpations), there was no possibility of maintaining the conditions, whatever they might have been, from the want of which so much mischief is fancied to have sprung. Evils did take place, dangers did arise, the liberties of England were once more impaired; but these are far less to be ascribed to the actors in the restoration than to the next parliament, and to the nation who chose it. I must once more request the reader to take notice that I am not here concerned with the proceedings of the convention parliament after the king's return to England, which, in some respects, appear to me censurable; but discussing the question, whether they were guilty of any fault in not tendering bills of limitation on the prerogative, as preliminary conditions of his restoration to the exercise of his lawful authority. And it will be found, upon a review of what took place in that interregnum from their meeting together on the 25th of April 1660, to Charles's arrival in London on the 29th of May, that they were less unmindful than has been sometimes supposed, of provisions to secure the kingdom against the perils which had seemed to threaten it in the restoration. On the 25th of April, the Commons met and elected Grimston, a moderate presbyterian, as their speaker, somewhat against the secret wish of the cavaliers, who, elated by their success in the elections, were beginning to aim at superiority, and to show a jealousy of their late allies.[516] On the same day, the doors of the House of Lords were found open; and ten peers, all of whom had sat in 1648, took their places as if nothing more than a common adjournment had passed in the interval.[517] There was, however, a very delicate and embarrassing question, that had been much discussed in their private meetings. The object of these, as I have mentioned, was to impose terms on the king, and maintain the presbyterian ascendancy. But the peers of this party were far from numerous, and must be outvoted, if all the other lawful members of the house should be admitted to their privileges. Of these there were three classes. The first was of the peers who had come to their titles since the commencement of the civil war, and whom there was no colour of justice, nor any vote of the house to exclude. To some of these accordingly they caused letters to be directed; and the others took their seats without objection on the 26th and 27th of April, on the latter of which days thirty-eight peers were present.[518] The second class was of those who had joined Charles the First, and had been excluded from sitting in the house by votes of the long parliament. These it had been in contemplation among the presbyterian junto to keep out; but the glaring inconsistency of such a measure with the popular sentiment, and the strength that the first class had given to the royalist interest among the aristocracy, prevented them from insisting on it. A third class consisted of those who had been created since the great seal was taken to York in 1642; some by the late king, others by the present in exile; and these, according to the fundamental principle of the parliamentary side, were incapable of sitting in the house. It was probably one of the conditions on which some meant to insist, conformably to the articles of the treaty of Newport, that the new peers should be perpetually incapable; or even that none should in future have the right of voting, without the concurrence of both houses of parliament. An order was made therefore on May 4 that no lords created since 1642 should sit. This was vacated by a subsequent resolution of May 31. A message was sent down to the Commons on April 27, desiring a conference on the great affairs of the kingdom. This was the first time that word had been used for more than eleven years. But the Commons, in returning an answer to this message, still employed the word nation. It was determined that the conference should take place on the ensuing Tuesday, the first of May.[519] In this conference, there can be no doubt that the question of further securities against the power of the Crown would have been discussed. But Monk, whether from conviction of their inexpedience or to atone for his ambiguous delay, had determined to prevent any encroachment on the prerogative. He caused the king's letter to the council of state, and to the two houses of parliament, to be delivered on that very day. A burst of enthusiastic joy testified their long repressed wishes; and, when the conference took place, the Earl of Manchester was instructed to let the Commons know that the Lords do own and declare that, according to the ancient and fundamental laws of this kingdom, the government is and ought to be by King, Lords, and Commons. On the same day, the Commons resolved to agree in this vote; and appointed a committee to report what pretended acts and ordinances were inconsistent with it.[520] It is however so far from being true that this convention gave itself up to a blind confidence in the king, that their journals during the month of May bear witness to a considerable activity in furthering provisions which the circumstances appeared to require. They appointed a committee, on May 3rd, to consider of the king's letter and declaration, both holding forth, it will be remembered, all promises of indemnity, and everything that could tranquillise apprehension, and to propose bills accordingly, especially for taking away military tenures. One bill was brought into the house, to secure lands purchased from the trustees of the late parliament; another, to establish ministers already settled in benefices; a third, for a general indemnity; a fourth, to take away tenures in chivalry and wardship; a fifth, to make void all grants of honour or estate, made by the late or present king since May 1642. Finally, on the very 29th of May, we find a bill read twice and committed, for the confirmation of privilege of parliament, magna charta, the petition of right, and other great constitutional statutes.[521] These measures, though some of them were never completed, proved that the restoration was not carried forward with so thoughtless a precipitancy and neglect of liberty as has been asserted. There was undoubtedly one very important matter of past controversy, which they may seem to have avoided, the power over the militia. They silently gave up that momentous question. Yet it was become, in a practical sense, incomparably more important that the representatives of the Commons should retain a control over the land forces of the nation than it had been at the commencement of the controversy. War and usurpation had sown the dragon's teeth in our fields; and, instead of the peaceable trained bands of former ages, the citizen soldiers who could not be marched beyond their counties, we had a veteran army accustomed to tread upon the civil authority at the bidding of their superiors, and used alike to govern and obey. It seemed prodigiously dangerous to give up this weapon into the hands of our new sovereign. The experience of other countries as well as our own demonstrated that public liberty could never be secure, if a large standing army should be kept on foot, or any standing army without consent of parliament. But this salutary restriction the convention parliament did not think fit to propose; and in this respect I certainly consider them as having stopped short of adequate security. It is probable that the necessity of humouring Monk, whom it was their first vote to constitute general of all the forces in the three kingdoms,[522] with the hope, which proved not vain, that the king himself would disband the present army whereon he could so little rely, prevented any endeavour to establish the control of parliament over the military power, till it was too late to withstand the violence of the cavaliers, who considered the absolute prerogative of the Crown in that point the most fundamental article of their creed. _Conduct of Monk._--Of Monk himself it may, I think, be said that, if his conduct in this revolution was not that of a high-minded patriot, it did not deserve all the reproach that has been so frequently thrown on it. No one can, without forfeiting all pretensions to have his own word believed, excuse his incomparable deceit and perjury; a masterpiece, no doubt, as it ought to be reckoned by those who set at nought the obligations of veracity in public transactions, of that wisdom which is not from above. But, in seconding the public wish for the king's restoration, a step which few perhaps can be so much in love with fanatical and tyrannous usurpation as to condemn, he seems to have used what influence he possessed, an influence by no means commanding, to render the new settlement as little injurious as possible to public and private interests. If he frustrated the scheme of throwing the executive authority into the hands of a presbyterian oligarchy, I, for one, can see no great cause for censure; nor is it quite reasonable to expect that a soldier of fortune, inured to the exercise of arbitrary power, and exempt from the prevailing religious fanaticism which must be felt or despised, should have partaken a fervent zeal for liberty, as little congenial to his temperament as it was to his profession. He certainly did not satisfy the king even in his first promises of support, when he advised an absolute indemnity, and the preservation of actual interests in the lands of the Crown and church. In the first debates on the bill of indemnity, when the case of the regicides came into discussion, he pressed for the smallest number of exceptions from pardon. And, though his conduct after the king's return displayed his accustomed prudence, it is evident that, if he had retained great influence in the council, which he assuredly did not, he would have maintained as much as possible of the existing settlement in the church. The deepest stain on his memory is the production of Argyle's private letters on his trial in Scotland; nor indeed can Monk be regarded, upon the whole, as an estimable man, though his prudence and success may entitle him, in the common acceptation of the word, to be reckoned a great one. FOOTNOTES: [245] May, p. 165. [246] Both sides claimed the victory. May, who thinks that Essex, by his injudicious conduct after the battle, lost the advantage he had gained in it, admits that the effect was to strengthen the king's side. "Those who thought his success impossible began to look upon him as one who might be a conqueror, and many neuters joined him."--P. 176. Ludlow is of the same opinion as to Essex's behaviour and its consequences: "Our army, after some refreshment at Warwick, returned to London, not like men that had obtained a victory, but as if they had been beaten."--P. 52. This shows that they had not in fact obtained much of a victory; and Lord Wharton's report to parliament almost leads us to think the advantage, upon the whole, to have been with the king. _Parl. Hist._ ii. 1495. [247] May, 212; Baillie, 373, 391. [248] May, Baillie, Mrs. Hutchinson, are as much of this opinion as Sir Philip Warwick and other royalist writers. It is certain that there was a prodigious alarm, and almost despondency, among the parliamentarians. They immediately began to make entrenchments about London, which were finished in a month. May, p. 214. In the _Somers Tracts_, iv. 534, is an interesting letter from a Scotsman then in London, giving an account of these fortifications, which, considering the short time employed about them, seem to have been very respectable, and such as the king's army, with its weak cavalry and bad artillery, could not easily have carried. Lord Sunderland, four days before the battle of Newbury wherein he was killed, wrote to his wife, that the king's affairs had never been in a more prosperous condition; that sitting down before Gloscester had prevented _their finishing the war that year_, "which nothing could keep us from doing, if we had a month's more time." _Sidney Letters_, ii. 671. He alludes in the same letters to the divisions in the royal party. [249] _Parl. Hist._ iii. 45, 48. It seems natural to think that, if the moderate party were able to contend so well against their opponents, after the desertion of a great many royalist members who had joined the king, they would have maintained a decisive majority, had these continued in their places. But it is to be considered, on the other hand, that the king could never have raised an army, if he had not been able to rally the peers and gentry round his banner, and that in his army lay the real secret of the temporary strength of the pacific party. [250] _Parl. Hist._ iii. 68, 94; Clarendon; May; Whitelock. If we believe the last (p. 68), the king, who took as usual a very active part in the discussions upon this treaty, would frequently have been inclined to come into an adjustment of terms; if some of the more war-like spirits about him (glancing apparently at Rupert) had not over persuaded his better judgment. This, however, does not accord with what Clarendon tells us of the queen's secret influence, nor indeed with all we have reason to believe of the king's disposition during the war. [251] _Life of Clarendon_, p. 79. This induced the king to find pretexts for avoiding the cessation, and was the real cause of his refusal to restore the Earl of Northumberland to his post of lord admiral during this treaty of Oxford, which was urged by Hyde. That peer was, at this time, and for several months afterwards, inclining to come over to the king; but, on the bad success of Holland and Bedford in their change of sides, he gave into the opposite course of politics, and joined the party of Lords Say and Wharton, in determined hostility to the king. Dr. Lingard has lately thrown doubts upon this passage in Clarendon, but upon grounds which I do not clearly understand. _Hist. of Engl._ x. 208, note. That no vestige of its truth should appear, as he observes, in the private correspondence between Charles and his consort (if he means the letters taken at Naseby, and I know no other), is not very singular; as the whole of that correspondence is of a much later date. [252] I cannot discover in the Journals any division on this impeachment. But Hollis inveighs against it in his memoirs as one of the flagrant acts of St. John's party; and there is an account of the debate on this subject in the _Somers Tracts_, v. 500; whence it appears that it was opposed by Maynard, Waller, Whitelock, and others; but supported by Pym, Strode, Long, Glynn, and by Martin with his usual fury and rudeness. The first of these carried up the impeachment to the House of Lords. This impeachment was not absolutely lost sight of for some time. In January 1644, the Lords appointed a committee to consider what mode of proceeding for bringing the queen to trial was most agreeable to a parliamentary way, and to peruse precedents. _Parl. Hist._ 194. [253] _Parl. Hist._ 129. [254] _Parl. Hist._ 133, June 20; Clarendon, iv. 155. He published, however, a declaration soon after the taking of Bristol, containing full assurances of his determination to govern by the known laws. _Parl. Hist._ 144. [255] Clarend. iv. 192, 262; Whitelock, 70. They met with a worse reception at Westminster than at Oxford, as indeed they had reason to expect. A motion that the Earl of Holland should be sent to the Tower was lost in the Commons by only one voice. _Parl. Hist._ 180. They were provoked at his taking his seat without permission. After long refusing to consent, the Lords agreed to an ordinance (June 29, 1644) that no peer or commoner who had been in the king's quarters, should be admitted again to sit in either house. _Parl. Hist._ 271. This severity was one cause of Essex's discontent, which was increased when the Commons refused him leave to take Holland with him on his expedition into the west that summer. Baillie, i. 426; Whitelock, 87. If it be asked why this Roman rigour was less impolitic in the parliament than in the king, I can only answer, that the stronger and the weaker have different measures to pursue. But relatively to the pacification of the kingdom, upon such terms as fellow-citizens ought to require from each other, it was equally blamable in both parties, or rather more so in that possessed of the greater power. [256] It is intimated by Clarendon that some at Oxford, probably Jermyn and Digby, were jealous of Holland's recovering the influence he had possessed with the queen, who seems to have retained no resentment against him. As to Bedford and Clare, they would probably have been better received, if not accompanied by so obnoxious an intriguer of the old court. This seems to account for the unanimity which the historian describes to have been shown in the council against their favourable reception. Light and passionate tempers, like that of Henrietta, are prone to forget injuries; serious and melancholic ones, like that of Charles, never lose sight of them. [257] Baillie deplores at this time "the horrible fears and confusions in the city, the king everywhere being victorious. In the city, a strong and insolent party for him."--P. 391. "The malignants stirred a multitude of women of the meaner and more infamous rank to come to the door of both houses, and cry tumultuously for peace on any terms. This tumult could not be suppressed but by violence, and killing some three or four women, and hurting some of them, and imprisoning many."--P. 300. [258] Lords and Commons' Journals; _Parl. Hist._ 156, etc.; Clarendon, iv. 183; Hollis's _Memoirs_. Hollis was a teller for the majority on this occasion; he had left the war-like party some months (Baillie, i. 356); and his name is in the journals repeatedly, from November 1642, as teller against them, though he is charged with having said the year before, that he abhorred the name of accommodation. Hutchinson, p. 296. Though a very honest, and to a certain extent, an able man, he was too much carried away by personal animosities; and as these shifted, his principles shifted also. [259] The resolution, that government by archbishops, bishops, etc., was inconvenient, and ought to be taken away, passed both houses unanimously September 10, 1642; _Parl. Hist._ ii. 1465. But the ordinance to carry this fully into effect was not made till October 1646. Scobell's _Ordinances_. [260] _Parl. Hist._ iii. 15. [261] This committee, appointed in February 1644, consisted of the following persons, the most conspicuous, at that time, of the parliament: the Earls of Northumberland, Essex, Warwick, and Manchester; Lords Say, Wharton, and Roberts; Mr. Pierrepont, the two Sir Henry Vanes, Sir Philip Stapylton, Sir William Waller, Sir Gilbert Gerrard, Sir William Armyn, Sir Arthur Haslerig; Messrs. Crew, Wallop, St. John, Cromwell, Brown, and Glynn. _Parl. Hist._ iii. 248. [262] _Somers Tracts_, iv. 533. The names marked in the _Parliamentary History_ as having taken the covenant, are 236. The Earl of Lincoln alone, a man of great integrity and moderation, though only conspicuous in the Journals, refused to take the covenant, and was excluded in consequence from his seat in the house: but on his petition next year, though, as far as appears, without compliance, was restored, and the vote rescinded. _Parl. Hist._ 393. He regularly protested against all violent measures; and we still find his name in the minority on such occasions after the Restoration. Baillie says, the desertion of about six peers at this time to the king, was of great use to the passing of the covenant in _a legal way_. Vol. i. p. 390. [263] Burnet's _Mem. of Duke of Hamilton_, p. 239. I am not quite satisfied as to this, which later writers seem to have taken from Burnet. It may well be supposed that the ambiguity of the covenant was not very palpable; since the Scots presbyterians, a people not easily cozened, were content with its expression. According to fair and honest rules of interpretation, it certainly bound the subscribers to the establishment of a church-government conformed to that of Scotland; namely, the presbyterian, exclusive of all mixture with any other. But Selden, and the other friends of moderate episcopacy who took the covenant, justified it, I suppose, to their consciences, by the pretext that, in renouncing the jurisdiction of bishops, they meant the unlimited jurisdiction without concurrence of any presbyters. It was not, however, an action on which they could reflect with pleasure. Baxter says that Gataker, and some others of the assembly, would not subscribe the covenant, but on the understanding that they did not renounce primitive episcopacy by it. _Life of Baxter_, p. 48. These controversial subtleties elude the ordinary reader of history. [264] After the war was ended, none of the king's party were admitted to compound for their estates, without taking the covenant. This Clarendon, in one of his letters, calls "making haste to buy damnation at two years' purchase." Vol. ii. p. 286. [265] Neal, ii. 19, etc., is fair enough in censuring the committees, especially those in the country. "The greatest part [of the clergy] were cast out for malignity [attachment to the royal cause]; superstition and false doctrine were hardly ever objected; yet the proceedings of the sequestrators were not always justifiable; for, whereas a court of judicature should rather be counsel for the prisoner than the prosecutor, the commissioners considered the king's clergy as their most dangerous enemies, and were ready to lay hold of all opportunities to discharge them their pulpits."--P. 24. But if we can rely at all on White's _Century of Malignant Ministers_ (and I do not perceive that Walker has been able to controvert it), there were a good many cases of irregular life in the clergy, so far at least as haunting alehouses; which, however, was much more common, and consequently less indecent, in that age than at present. See also Baxter's _Life_, p. 74; whose authority, though open to some exceptions on the score of prejudice, is at least better than Walker's. The king's party were not less oppressive towards ministers whom they reckoned puritan; which unluckily comprehended most of those who were of strict lives, especially if they preached calvinistically, unless they redeemed that suspicion by strong demonstrations of loyalty. Neal, p. 21; Baxter's _Life_, p. 42. And, if they put themselves forward on this side, they were sure to suffer most severely for it on the parliament's success; an ordinance of April 1, 1643, having sequestered the private estates of all the clergy who had aided the king. Thus the condition of the English clergy was every way most deplorable; and in fact they were utterly ruined. [266] Neal, p. 93. He says it was not tendered, by favour, to some of the clergy who had not been active against the parliament, and were reputed Calvinists. P. 59. Sanderson is said to be one instance. This historian, an honest and well-natured man at bottom, justly censures its imposition. [267] "All the judges answered that they could deliver no opinion in this case, in point of treason by the law; because they could not deliver any opinion in point of treason, but what was particularly expressed to be treason in the statute of 25 E. III., and so referred it wholly to the judgment of this house." Lords' Journals, 17th December 1644. [268] Lords' Journals, 4th January. It is not said to be done _nem. con._ [269] "The difference in the temper of the common people of both sides was so great that they who inclined to the parliament left nothing unperformed that might advance the cause; whereas they who wished well to the king thought they had performed their duty in doing so, and that they had done enough for him, in that they had done nothing against him." Clarendon, pp. 3, 452. "Most of the gentry of the county (Nottinghamshire)," says Mrs. Hutchinson, "were disaffected to the parliament; most of the middle sort, the able substantial freeholders and the other commons, who had not their dependence upon the malignant nobility and gentry, adhered to the parliament."--P. 81. This I conceive to have been the case in much the greater part of England. Baxter, in his _Life_, p. 30, says just the same thing in a passage worthy of notice. But the Worcestershire populace, he says, were violent royalists, p. 39. Clarendon observes in another place (iii. 41), "There was in this county (Cornwall), as throughout the kingdom, a wonderful and superstitious reverence towards the name of a parliament, and a prejudice to the power of the court." He afterwards (p. 436) calls "an implicit reverence to the name of a parliament, the fatal disease of the whole kingdom." So prevalent was the sense of the king's arbitrary government, especially in the case of ship-money. Warburton remarks, that he never expressed any repentance, or made any confession in his public declarations, that his former administration had been illegal. Notes on Clarendon, p. 566. But this was not, perhaps, to be expected; and his repeated promises to govern according to law might be construed into tacit acknowledgments of past errors. [270] The associated counties, properly speaking, were at first Norfolk, Suffolk, Essex, Hertford, Cambridge; to which some others were added. Sussex, I believe, was not a part of the association; but it was equally within the parliamentary pale, though the gentry were remarkably loyal in their inclinations. The same was true of Kent. [271] Clarendon, _passim_; May, 160; Baillie, i. 416. See, in the _Somers Tracts_, v. 495, a dialogue between a gentleman and a citizen, printed at Oxford, 1643. Though of course a royalist pamphlet, it shows the disunion that prevailed in that unfortunate party, and inveighs against the influence of the papists, in consequence of which the Marquis of Hertford is said to have declined the king's service. Rupert is praised, and Newcastle struck at. It is written, on the whole, in rather a lukewarm style of loyalty. The Earl of Holland and Sir Edward Dering gave out as their reason for quitting the king's side, that there was great danger of popery. This was much exaggerated; yet Lord Sunderland talks the same language. _Sidney Papers_, ii. 667. Lord Falkland's dejection of spirits, and constant desire of peace, must chiefly be ascribed to his disgust with the councils of Oxford, and the greater part of those with whom he was associated. E quel che più ti graverà le spalle Sarà la compagnia malvagia e ria, Nella quel tu cadrai in questa valle. We know too little of this excellent man, whose talents, however, and early pursuits do not seem to have particularly qualified him for public life. It is evident that he did not plunge into the loyal cause with all the zeal of his friend Hyde; and the king doubtless had no great regard for the counsels of one who took so very different a view of some important matters from himself. _Life of Clarendon_, 48. He had been active against Strafford, and probably had a bad opinion of Laud. The prosecution of Finch for high treason he had himself moved. In the Ormond _Letters_, i. 20, he seems to be struck at by one writing from Oxford, June 1, 1643: "God forbid that the best of men and kings be so used by some bad hollow-hearted counsellors, who affect too much the parliamentary way. Many spare not to name them; and I doubt not but you have heard their names." [272] It appears by the late edition of Clarendon, iv. 351, that he was the adviser of calling the Oxford parliament. The former editors omitted his name. [273] _Parl. Hist._ 218. The number who took the covenant in September 1643, appears by a list of the long parliament in the same work (vol. ii.) to be 236; but twelve of these are included in both lists, having gone afterwards into the king's quarters. The remainder, about 100, were either dead since the beginning of the troubles, or for some reason absented themselves from both assemblies. Possibly the list of those who took the covenant is not quite complete; nor do I think the king had much more than about sixty peers on his side. The parliament, however, could not have produced thirty. Lords' Journals, Jan. 22, 1644. Whitelock, p. 80, says that two hundred and eighty appeared in the House of Commons, Jan. 1644, besides one hundred absent in the parliament's service; but this cannot be quite exact. [274] Rushworth Abr. v. 266, and 296; where is an address to the king, intimating, if attentively considered, a little apprehension of popery and arbitrary power. Baillie says, in one of his letters, "The first day the Oxford parliament met, the king made a long speech; but many being ready to give in papers for the removing of Digby, Cottington, and others from court, the meeting was adjourned for some days."--i. 429. Indeed, the restoration of Cottington, and still more of Windebank, to the king's councils, was no pledge of protestant or constitutional measures. This opposition, so natural to parliaments in any circumstances, disgusted Charles. In one of his letters to the queen, he congratulates himself on being "freed from the place of all mutinous motions, his mongrel parliament." It may be presumed that some of those who obeyed the king's summons to Oxford were influenced less by loyalty than a consideration that their estates lay in parts occupied by his troops; of course the same is applicable to the Westminster parliament. [275] Baillie, 441. I can find no mention of this in the Journals; but, as Baillie was then in London, and in constant intercourse with the leaders of parliament, there must have been some foundation for his statement, though he seems to have been inaccurate as to the fact of the vote. [276] _Parl. Hist._ 299, _et post_; Clarendon, v. 16; Whitelock, 110, etc.; Rushw. Abr. v. 449, etc. [277] It was impossible for the king to avoid this treaty. Not only his Oxford parliament, as might naturally be expected, were openly desirous of peace, but a great part of the army had, in August 1644, while opposed to that of Essex in the west, taken the extraordinary step of sending a letter to that general, declaring their intentions for the rights and liberties of the people, privileges of parliament, and protestant religion against popish innovations; and that on the faith of subjects, the honour and reputation of gentlemen and soldiers, they would with their lives maintain that which his majesty should publicly promise in order to a bloodless peace; they went on to request that Essex, with six more, would meet the general (Earl of Brentford) with six more, to consider of all means possible to reconcile the unhappy differences and misunderstandings that have so long afflicted the kingdom. Sir Edward Walker's _Historical Discourses_, 59. The king was acquainted with this letter before it was sent, but after some hands had been subscribed to it. He consented, but evidently with great reluctance, and even indignation; as his own expressions testify in this passage of Walker, whose manuscript here, as in many other places, contains interlineations by Charles himself. It was doubtless rather in a mutinous spirit, which had spread widely through the army, and contributed to its utter ruin in the next campaign. I presume it was at the king's desire that the letter was signed by the general, as well as by Prince Maurice, and all the colonels, I believe, in his army, to take off the appearance of a faction; but it certainly originated with Wilmot, Percy, and some of those whom he thought ill affected. See Clarendon, iv. 527, _et post_; Rushw. Abr. v. 348, 358. [278] The king's doctors, Steward and Sheldon, argued at Uxbridge that episcopacy was _jure divino_; Henderson and others that presbytery was so. Whitelock, 132. These churchmen should have been locked up like a jury, without food or fire, till they agreed. If we may believe Clarendon, the Earl of Loudon offered in the name of the Scots, that if the king would give up episcopacy, they would not press any of the other demands. It is certain, however, that they would never have suffered him to become the master of the English parliament; and, if this offer was sincerely made, it must have been from a conviction that he could not become such. [279] Rushworth, Whitelock, Clarendon. The latter tells in his life, which reveals several things not found in his history, that the king was very angry with some of his Uxbridge commissioners, especially Mr. Bridgman, for making too great concessions with respect to episcopacy. He lived, however, to make himself much greater. [280] Whitelock, 133. [281] The creed of this party is set forth in the _Behemoth_ of Hobbes; which is, in other words, the application of those principles of government which are laid down in the _Leviathan_, to the constitution and state of England in the civil war. It is republished in Baron Maseres's _Tracts_, ii. 565, 567. Sir Philip Warwick, in his _Memoirs_, 198, hints something of the same kind. [282] Warburton, in the notes subjoined to the late edition of Clarendon, vii. 563, mentions a conversation he had with the Duke of Argyle and Lord Cobham (both soldiers, and the first a distinguished one) as to the conduct of the king and the Earl of Essex after the battle of Edgehill. They agreed it was inexplicable on both sides by any military principle. Warburton explained it by the unwillingness to be _too victorious_, felt by Essex himself, and by those whom the king was forced to consult. Father Orleans, in a passage with which the bishop probably was acquainted, confirms this; and his authority is very good as to the secret of the court. Rupert, he says, proposed to march to London. "Mais l'esprit Anglois, qui ne se dement point même dans les plus attachés a la royauté, l'esprit Anglois, dis-je, toujours entêté de ces libertéz si funestes au repos de la nation, porta la plus grande partie du conseil à s'opposer à ce dessein. Le prétexte fut qu'il étoit dangereux pour le roy de l'entreprendre, et pour la ville que le Prince Robert l'exécutâst, jeune comme il étoit, emporté, et capable d'y mettre le feu. La vraie raison étoit qu'ils craignoient que, si le roy entroit dans Londres les armes à la main, il ne prétendist sur la nation une espèce de droit de conquête, qui le rendist trop absolu." _Révolut. d'Angleterre_, iii. 104. [283] Rushworth Abr. iv. 550. At the very time that he was publicly denying his employment of papists, he wrote to Newcastle, commanding him to make use of all his subjects' services, without examining their consciences, except as to loyalty. Ellis's _Letters_, iii. 291, from an original in the Museum. No one can rationally blame Charles for anything in this, but his inveterate and useless habit of falsehood. See Clarendon, iii. 610. It is probable that some foreign catholics were in the parliament's service. But Dodd says, with great appearance of truth, that no one English gentleman of that persuasion was in arms on their side. _Church History of Engl._ iii. 28. He reports as a matter of hearsay, that, out of about five hundred gentlemen who lost their lives for Charles in the civil war, one hundred and ninety-four were catholics. They were, doubtless, a very powerful faction in the court and army. Lord Spencer (afterwards Earl of Sunderland), in some remarkable letters to his wife from the king's quarters at Shrewsbury, in September 1642, speaks of the insolency of the papists with great dissatisfaction. _Sidney Papers_, ii. 667. [284] It cannot be doubted, and is admitted in a remarkable conversation of Hollis and Whitelock with the king at Oxford in November 1644, that the exorbitant terms demanded at Uxbridge were carried by the violent party, who disliked all pacification. Whitelock, 113. [285] Baillie, ii. 91. He adds, "That which has been the great snare to the king is the unhappy success of Montrose in Scotland." There seems indeed great reason to think that Charles, always sanguine, and incapable of calculating probabilities, was unreasonably elated by victories from which no permanent advantage ought to have been expected. Burnet confirms this on good authority. Introduction to _Hist. of his Times_, 51. [286] Whitelock, 109, 137, 142; Rushw. Abr. v. 163. The first _rat_ (except indeed the Earls of Holland and Bedford, who were rats with two tails) was Sir Edward Dering, who came into the parliament's quarters, Feb. 1644. He was a weak man of some learning, who had already played a very changeable part before the war. [287] A flagrant instance of this was the plunder of Bristol by Rupert, in breach of the capitulation. I suspect that it was the policy of one party to exaggerate the cruelties of the other; but the short narratives dispersed at the time give a wretched picture of slaughter and devastation. [288] Clarendon and Whitelock _passim_; Baxter's _Life_, pp. 44, 55. This license of Maurice's and Goring's armies in the west first led to the defensive insurrection, if so it should be called, of the club-men; that is, of yeomen and country people, armed only with clubs, who hoped, by numbers and concert, to resist effectually the military marauders of both parties, declaring themselves neither for king nor parliament, but for their own liberty and property. They were of course regarded with dislike on both sides; by the king's party when they first appeared in 1644, because they crippled the royal army's operations, and still more openly by the parliament next year, when they opposed Fairfax's endeavour to carry on the war in the counties bordering on the Severn. They appeared at times in great strength; but the want of arms and discipline made it not very difficult to suppress them. Clarendon, v. 197; Whitelock, 137; _Parl. Hist._ 379, 390. The king himself, whose disposition was very harsh and severe, except towards the few he took into his bosom, can hardly be exonerated from a responsibility for some acts of inhumanity (see Whitelock, 67, and _Somers Tracts_, iv. 502, v. 369; Maseres's _Tracts_, i. 144, for the ill-treatment of prisoners); and he might probably have checked the outrages which took place at the storming of Leicester, where he was himself present. Certainly no imputation of this nature can be laid at the door of the parliamentary commanders; though some of them were guilty of the atrocity of putting their Irish prisoners to death, in obedience, however, to an ordinance of parliament. _Parl. Hist._ iii. 295; Rushworth's Abridgement, v. 402. It passed October 24, 1644, and all remissness in executing it was to be reckoned a favouring of the Irish rebellion. When we read, as we do perpetually, these violent and barbarous proceedings of the parliament, is it consistent with honesty or humanity to hold up that assembly to admiration, while the faults on the king's side are studiously aggravated? The partiality of Oldmixon, Harris, Macauley, and now of Mr. Brodie and Mr. Godwin, is full as glaring, to say the very least, as that of Hume. [289] Clarendon and Baxter. [290] The excise was first imposed by an ordinance of both houses in July 1643 (Husband's _Collection of Ordinances_, p. 267), and afterwards by the king's convention at Oxford. See a view of the financial expedients adopted by both parties in Lingard, x. 243. The plate brought in to the parliament's commissioners at Guildhall, in 1642, for which they allowed the value of the silver, and one shilling per ounce more, is stated by Neal at £1,267,326, an extraordinary proof of the wealth of London; yet I do not know his authority, though it is probably good. The university of Oxford gave all they had to the king; but could not of course vie with the citizens. The sums raised within the parliament's quarters from the beginning of the war to 1647 are reckoned in a pamphlet of that year, quoted in Sinclair's _Hist. of the Revenue_, i. 283, at £17,512,400. But, on reference to the tract itself, I find this written at random. The contributions, however, were really very great; and, if we add those to the king, and the loss by waste and plunder, we may form some judgment of the effects of the civil war. [291] The independents raised loud clamours against the Scots army; and the northern counties naturally complained of the burthen of supporting them as well as of their excesses. Many passages in Whitelock's journal during 1645 and 1646 relate to this. Hollis endeavours to deny or extenuate the charges; but he is too prejudiced a writer, and Baillie himself acknowledges a great deal. Vol. ii. pp. 138, 142, 146. [292] The chief imputation against Manchester was for not following up his victory in the second battle of Newbury, with which Cromwell openly taxed him; see Ludlow, i. 133. There certainly appears to have been a want of military energy on this occasion; but it is said by Baillie (ii. 76) that all the general officers, Cromwell not excepted, concurred in Manchester's determination. Essex had been suspected from the time of the affair at Brentford, or rather from the battle of Edgehill (Baillie and Ludlow); and his whole conduct, except in the celebrated march to relieve Gloucester, confirmed a reasonable distrust either of his military talents, or of his zeal in the cause. "He loved monarchy and nobility," says Whitelock, p. 108, "and dreaded those who had a design to destroy both." Yet Essex was too much a man of honour to enter on any private intrigues with the king. The other peers employed under the parliament, Stamford, Denbigh, Willoughby, were not successful enough to redeem the suspicions that fell upon their zeal. All our republican writers, such as Ludlow and Mrs. Hutchinson in that age, Mrs. Macauley and Mr. Brodie more of late, speak acrimoniously of Essex. "Most will be of opinion," says Mr. B. (_History of British Empire_, iii. 565), "that as ten thousand pounds a year out of the sequestered lands were settled upon him for his services, he was rewarded infinitely beyond his merits." The reward was doubtless magnificent; but the merit of Essex was this, that he made himself the most prominent object of vengeance in case of failure, by taking the command of an army to oppose the king in person at Edgehill: a command of which no other man in his rank was capable, and which could not, at that time, have been intrusted to any man of inferior rank without dissolving the whole confederacy of the parliament. It is to be observed, moreover, that the two battles of Newbury, like that of Edgehill, were by no means decisive victories on the side of the parliament; and that it is not clear whether either Essex or Manchester could have pushed the king much more than they did. Even after Naseby, his party made a pretty long resistance, and he was as much blamed as they for not pressing his advantages with vigour. [293] It had been voted by the Lords a year before, Dec. 12, 1643, "That the opinion and resolution of this house is from henceforth not to admit the members of either house of parliament into any place or office, excepting such places of great trust as are to be executed by persons of eminency and known integrity, and are necessary for the government and safety of the kingdom." But a motion to make this resolution into an ordinance was carried in the negative. Lords' Journals; _Parl. Hist._ 187. The first motion had been for a resolution without this exception, that no place of profit should be executed by the members of either house. [294] Whitelock, pp. 118, 120. It was opposed by him, but supported by Pierrepont, who carried it up to the Lords. The Lords were chiefly of the presbyterian party; though Say, Wharton, and a few more, were connected with the independents. They added a proviso to the ordinance raising forces to be commanded by Fairfax, that no officer refusing the covenant should be capable of serving, which was thrown out in the lower house. But another proviso was carried in the Commons by 82 to 63, that the officers, though appointed by the general, should be approved by both houses of parliament. Cromwell was one of the tellers for the minority. Commons' Journals, Feb. 7 and 13, 1645. In the original ordinance the members of both houses were excluded during the war; but in the second, which was carried, the measure was not made prospective. This, which most historians have overlooked, is well pointed out by Mr. Godwin. By virtue of this alteration, many officers were elected in the course of 1645 and 1646; and the effect, whatever might be designed, was very advantageous to the republican and independent factions. [295] Whitelock, p. 145. [296] Whether there are sufficient grounds for concluding that Henrietta's connection with Jermyn was criminal, I will not pretend to decide; though Warburton has settled the matter in a very summary style. See one of his notes on Clarendon, vol. vii. p. 636. But I doubt whether the bishop had authority for what he there says, though it is likely enough to be true. See also a note of Lord Dartmouth on Burnet, i. 63. [297] Clarendon speaks often in his _History_, and still more frequently in his private letters, with great resentment of the conduct of France, and sometimes of Holland, during our civil wars. I must confess that I see nothing to warrant this. The States-General, against whom Charles had so shamefully been plotting, interfered as much for the purpose of mediation as they could with the slightest prospect of success, and so as to give offence to the parliament (Rushworth Abridged, v. 567; Baillie, ii. 78; Whitelock, 141, 148; Harris's _Life of Cromwell_, 246); and as to France, though Richelieu had instigated the Scots malcontents, and possibly those of England, yet after his death, in 1642, no sort of suspicion ought to lie on the French government; the whole conduct of Anne of Austria having been friendly, and both the mission of Harcourt in 1643, and the present negotiations of Montreuil and Bellievre, perfectly well intended. That Mazarin made promises of assistance which he had no design, nor perhaps any power, to fulfil, is true; but this is the common trick of such statesmen, and argues no malevolent purpose. But Hyde, out of his just dislike of the queen, hated all French connections; and his passionate loyalty made him think it a crime, or at least a piece of base pusillanimity, in foreign states, to keep on any terms with the rebellious parliament. The case was altered, after the retirement of the regent Anne from power: Mazarin's latter conduct was, as is well known, exceedingly adverse to the royal cause. The account given by Mr. D'Israeli of Tabran's negotiations in the fifth volume of his _Commentaries on the Reign of Charles I._, though it does not contain anything very important, tends to show Mazarin's inclination towards the royal cause in 1644 and 1645. [298] Colepepper writes to Ashburnham, in February 1646, to advance the Scots' treaty with all his power. "It is the only way left to save the Crown and the kingdom; all other tricks will deceive you.... It is no time to dally on distinctions and criticisms. All the world will laugh at them when a crown is in question." _Clar. Papers_, ii. 207. The king had positively declared his resolution not to consent to the establishment of presbytery. This had so much disgusted both the Scots and English presbyterians (for the latter had been concerned in the negotiation), that Montreuil wrote to say he thought they would rather make it up with the independents than treat again. "De sorte qu'il ne faut plus marchander, et que V. M. se doit hâter d'envoyer aux deux parlemens son consentiment aux trois propositions d'Uxbridge; ce qu'étant fait, elle sera en sureté dans l'armée d'Ecosse" (15th Jan. 1646) P. 211. [299] "I assure you," he writes to Capel, Hopton, etc., Feb. 2, 1646, "whatever paraphrases or prophecies may be made upon my last message (pressing the two houses to consent to a personal treaty), I shall never part with the church, the essentials of my crown, or my friends."--P. 206. Baillie could not believe the report that the king intended to take refuge in the Scots army, as "there would be no shelter there for him, unless he would take the covenant, and follow the advice of his parliament. Hard pills to be swallowed by a wilful and an unadvised prince." Vol. ii. p. 203. [300] Not long after the king had taken shelter with the Scots, he wrote a letter to Ormond, which was intercepted, wherein he assured him of his expectation that their army would join with his, and act in conjunction with Montrose, to procure a happy peace and the restoration of his rights. Whitelock, page 208. Charles had bad luck with his letters, which fell, too frequently for his fame and interests, into the hands of his enemies. But who, save this most ill-judging of princes, would have entertained an idea that the Scots presbyterian army would co-operate with Montrose, whom they abhorred, and very justly, for his treachery and cruelty, above all men living? [301] _Parl. Hist._ 499; Whitelock, 215, 218. It was voted, 17th June, that after these twenty years, the king was to exercise no power over the militia without the previous consent of parliament, who were to pass a bill at any time respecting it, if they should judge the kingdom's safety to be concerned, which should be valid without the king's assent. Commons' Journals. [302] P. 248. "Show me any precedent," he says in another place, "wherever presbyterian government and regal was together without perpetual rebellions, which was the cause that necessitated the king my father to change that government in Scotland. And even in France, where they are but on tolerance, which in likelihood shall cause moderation, did they ever sit still so long as they had power to rebel? And it cannot be otherwise; for the ground of their doctrine is anti-monarchical."--P. 260. See also p. 273. [303] "The design is to unite you with the Scots nation and the presbyterians of England against the anti-monarchical party, the independents.... If by conscience it is intended to assert that episcopacy is _jure divino_ exclusive, whereby no protestant, or rather Christian church, can be acknowledged for such without a bishop, we must therein crave leave wholly to differ. And if we be in an error, we are in good company, there not being, as we have cause to believe, six persons of the protestant religion of the other opinion.... Come, the question in short is, whether you will choose to be a king of presbytery, or no king, and yet presbytery or perfect independency to be?"--P. 263. They were, however, as much against his giving up the militia, or his party, as in favour of his abolishing episcopacy. Charles was much to be pitied throughout all this period; none of his correspondents understood the state of affairs so well as himself; he was with the Scots, and saw what they were made of, while the others fancied absurdities through their own private self-interested views. It is very certain that by sacrificing episcopacy he would not have gained a step with the parliament; and as to reigning in Scotland alone, suspected, insulted, degraded, this would perhaps just have been possible for himself; but neither Henrietta nor her friends would have found an asylum there. [304] Juxon had been well treated by the parliament, in consequence of his prudent abstinence from politics, and residence in their quarters. He dates his answer to the king from his palace at Fulham. He was, however, dispossessed of it not long after by virtue of the ordinance directing the sale of bishops' lands. Nov. 16, 1646. _Parl. Hist._ 528. A committee was appointed (Nov. 2, 1646) to consider of a fitting maintenance to be allowed the bishops, both those who had remained under the parliament, and those who had deserted it. Journals. I was led to this passage by Mr. Godwin, _Hist. of Commonwealth_, ii. 250. Whether anything farther was done, I have not observed. But there is an order in the Journals, 1st May 1647, that whereas divers of the late tenants of Dr. Juxon, late Bishop of London, have refused to pay the rents or other sums of money due to him as Bishop of London at or before the 1st of November last, the trustees of bishops' lands are directed to receive the same, and pay them over to Dr. Juxon. Though this was only justice, it shows that justice was done at least in this instance, to a bishop. Juxon must have been a very prudent and judicious man, though not learned; which probably was all the better. [305] Jan. 29, 1646. _Parl. Hist._ 436. Whitelock says, "Many sober men and lovers of peace were earnest to have complied with what the king proposed; but the major part of the house was contrary, and the new-elected members joined those who were averse to compliance."--P. 207. [306] _Clar. Papers_, p. 275. [307] _Id._ 294, 297, 300. She had said as much before (_King's Cabinet Opened_, p. 28); so that this was not a burst of passion. "Conservez vous la militia," she says in one place (p. 271), "et n'abandonnez jamais; et _par cela tout reviendra_." Charles, however, disclaimed all idea of violating his faith in case of a treaty (p. 273); but observes as to the militia, with some truth, that "the retaining of it is not of so much consequence--I am far from saying, none--as is thought, without the concurrence of other things; because the militia here is not, as in France and other countries, a formed powerful strength; but it serves more to hold off ill than to do much good. And certainly, if the pulpits teach not obedience (which will never be, if presbyterian government be absolutely settled), the Crown will have little comfort of the militia."--P. 296. [308] P. 301. [309] P. 313. [310] Pp. 245, 247, 278, 314. In one place he says, that he will go to France _to clear his reputation to the queen_. P. 265. He wrote in great distress of mind to Jermyn and Colepepper, on her threatening to retire from all business into a monastery, in consequence of his refusal to comply with her wishes. P. 270. See also Montreuil's memoir in Thurloe's _State Papers_, i. 85, whence it appears that the king had thoughts of making his escape in Jan. 1647. [311] "For the proposition to Bellievre (a French agent at Newcastle after Montreuil's recall), I hate it. If any such thing should be made public, you are undone; your enemies will make a malicious use of it. Be sure you never own it again in any discourse, otherwise than as intended as a foil, or an hyperbole, or any other ways except in sober earnest," etc. P. 304. The queen and her counsellors, however, seem afterwards to have retracted in some measure what they had said about his escape; and advised that if he could not be suffered to go into Scotland, he would try Ireland or Jersey. P. 312. Her dislike to the king's escape showed itself, according to Clarendon, vi. 192, even at a time when it appeared the only means to secure his life, during his confinement in the Isle of Wight. Some may suspect that Henrietta had consoled herself too well with Lord Jermyn to wish for her husband's return. [312] P. 344. [313] P. 279. [314] Clarendon and Hume inveigh against the parliament for this publication; in which they are of course followed by the whole rabble of Charles's admirers. But it could not reasonably be expected that such material papers should be kept back; nor were the parliament under any obligation to do so. The former writer insinuates that they were garbled; but Charles himself never pretended this (see Supplement to Evelyn's _Diary_, p. 101); nor does there seem any foundation for the surmise. His own friends garbled them, however, after the restoration; some passages are omitted in the edition of King Charles's Works; so that they can only be read accurately in the original publication, called _The King's Cabinet Opened_, a small tract in quarto; or in the modern compilations, such as the _Parliamentary History_, which have copied it. Ludlow says he has been informed that some of the letters taken at Naseby were suppressed by those intrusted with them, who since the king's restoration have been rewarded for it. _Memoirs_, i. 156. But I should not be inclined to believe this. There is, however, an anecdote which may be mentioned in this place: A Dr. Hickman, afterwards Bishop of Derry, wrote in 1690, the following letter to Sprat, Bishop of Rochester, a copy of which, in Dr. Birch's handwriting, may be found in the British Museum. It was printed by him in the Appendix to the _Inquiry into the Share K. Charles I. had in Glamorgan's Transactions_, and from thence by Harris, in his _Life of Charles I._, p. 144. "MY LORD,--Last week Mr. Bennet [a bookseller] left with me a manuscript of letters from King Charles I. to his queen; and said it was your lordship's desire and Dr. Pelling's, that my Lord Rochester should read them over, and see what was fit to be left out in the intended edition of them. Accordingly, my lord has read them over, and upon the whole matter says he is very much amazed at the design of printing them, and thinks that the king's enemies could not have done him a greater discourtesy. He showed me many passages which detract very much from the reputation of the king's prudence, and something from his integrity; and in short he can find nothing throughout the whole collection, but what will lessen the character of the king and offend all those who wish well to his memory. He thinks it very unfit to expose any man's conversation and familiarity with his wife, but especially that king's; for it was apparently his blind side, and his enemies gained great advantage by showing it. But my lord hopes his friends will spare him; and therefore he has ordered me not to deliver the book to the bookseller, but put it into your lordship's hands; and when you have read it, he knows you will be of his opinion. If your lordship has not time to read it all, my lord has turned down some leaves where he makes his chief objections. If your lordship sends any servant to town, I beg you would order him to call here for the book, and that you would take care about it." Though the description of these letters answers perfectly to those in the _King's Cabinet Opened_, which certainly "detract much from the reputation of Charles's prudence, and something from his integrity," it is impossible that Rochester and the others could be ignorant of so well-known a publication; and we must consequently infer that some letters injurious to the king's character have been suppressed by the caution of his friends. [315] The king had long entertained a notion, in which he was encouraged by the attorney-general Herbert, that the act against the dissolution of the parliament without its own consent was void in itself. _Life of Clarendon_, p. 86. This high monarchical theory of the nullity of statutes in restraint of the prerogative was never thoroughly eradicated till the Revolution, and in all contentions between the Crown and parliament destroyed the confidence, without which no accommodation could be durable. [316] "There is little or no appearance but that this summer will be the hottest for war of any that hath been yet; and be confident that, in making peace, I shall ever show my constancy in adhering to bishops and all our friends, not forgetting to put a short period to this perpetual parliament." _King's Cabinet Opened_, p. 7. "It being presumption, and no piety, so to trust to a good cause as not to use all lawful means to maintain it, I have thought of one means more to furnish thee with for my assistance, than hitherto thou hast had: it is, that I give thee power to promise in my name, to whom thou thinkest most fit, that I will take away all the penal laws against the Roman catholics in England as soon as God shall enable me to do it; so as by their means, or in their favours, I may have so powerful assistance as may deserve so great a favour, and enable me to do it. But if thou ask what I call that assistance, I answer that when thou knowest what may be done for it, it will be easily seen, if it deserve to be so esteemed. I need not tell thee what secrecy this business requires; yet this I will say, that this is the greatest point of confidence I can express to thee; for it is no thanks to me to trust thee in anything else but in this, which is the only point of difference in opinion betwixt us: and yet I know thou wilt make as good a bargain for me, even in this, as if thou wert a protestant." _Id. ibid._ "As to my calling those at London a parliament, I shall refer thee to Digby for particular satisfaction; this in general--if there had been but two, besides myself, of my opinion, I had not done it; and the argument that prevailed with me was, that the calling did no ways acknowledge them to be a parliament, upon which condition and construction I did it, and no otherwise, and accordingly it is registered in the council books, with the council's unanimous approbation." _Id._ p. 4. The one counsellor who concurred with the king was Secretary Nicholas, Supplement to Evelyn's _Memoirs_, p. 90. [317] The queen evidently suspected that he might be brought to abandon the catholics. _King's Cabinet Opened_, pp. 30, 31. And, if fear of her did not prevent him, I make no question that he would have done so, could he but have carried his other points. [318] _Parl. Hist._ 428; _Somers Tracts_, v. 542. It appears by several letters of the king, published among those taken at Naseby, that Ormond had power to promise the Irish a repeal of the penal laws and the use of private chapels as well as a suspension of Poyning's law. _King's Cabinet Opened_, pp. 16, 19; Rushw. Abr. v. 589. Glamorgan's treaty granted them all the churches with the revenues thereof, of which they had at any time since October 1641 been in possession; that is, the re-establishment of their religion: they, on the other hand, were to furnish a very large army to the king in England. [319] Rushw. Abr. v. 582, 594. This, as well as some letters taken on Lord Digby's rout at Sherborn about the same time, made a prodigious impression. "Many good men were sorry that the king's actions agreed no better with his words; that he openly protested before God with horrid imprecations that he endeavoured nothing so much as the preservation of the protestant religion and rooting out of popery; yet in the meantime, underhand, he promised to the Irish rebels an abrogation of the laws against them, which was contrary to his late expressed promises in these words, 'I will never abrogate the laws against the papists.' And again he said, 'I abhor to think of bringing foreign soldiers into the kingdom,' and yet he solicited the Duke of Lorrain, the French, the Danes, and the very Irish, for assistance." May's "Breviate of Hist. of Parliament" in Maseres's _Tracts_, i. 61. Charles had certainly never scrupled (I do not say that he ought to have done so) to make application in every quarter for assistance; and began in 1642 with sending a Col. Cochran on a secret mission to Denmark, in the hope of obtaining a subsidiary force from that kingdom. There was at least no danger to the national independence from such allies. "We fear this shall undo the king for ever, that no repentance shall ever obtain a pardon of this act, if it be true, from his parliaments." Baillie, ii. 185. Jan. 20, 1646. The king's disavowal had some effect; it seems as if even those who were prejudiced against him could hardly believe him guilty of such an apostasy, as it appeared in their eyes. P. 175. And, in fact, though the catholics had demanded nothing unreasonable either in its own nature or according to the circumstances wherein they stood, it threw a great suspicion on the king's attachment to his own faith, when he was seen to abandon altogether, as it seemed, the protestant cause in Ireland, while he was struggling so tenaciously for a particular form of it in Britain. Nor was his negotiation less impolitic than dishonourable. Without depreciating a very brave and injured people, it may be said with certainty that an Irish army could not have had the remotest chance of success against Fairfax and Cromwell; the courage being equal on our side, the skill and discipline incomparably superior. And it was evident that Charles could never reign in England but on a protestant interest. [320] Birch's _Inquiry into the Share which King Charles I. had in the Transactions of the Earl of Glamorgan_, 1747. Four letters of Charles to Glamorgan, now in the British Museum (Sloane MSS. 4161), in Birch's handwriting, but of which he was not aware at the time of that publication, decisively show the king's duplicity. In the first, which was meant to be seen by Digby, dated Feb. 3, 1646, he blames him for having been drawn to consent to conditions much beyond his instructions. "If you had advised with my lord lieutenant, as you promised me, all this had been helped;" and tells him he had commanded as much favour to be shown him as might possibly stand with his service and safety. On Feb. 28 he writes by a private hand, Sir John Winter, that he is every day more and more confirmed in the trust that he had of him. In a third letter, dated April 5, he says, in a cipher, to which the key is given, "you cannot be but confident of my making good all instructions and promises to you and nuncio." The fourth letter is dated April 6, and is in these words: "Herbert, as I doubt not but you have too much courage to be dismayed or discouraged at the usage like you have had, so I assure you that my estimation of you is nothing diminished by it, but rather begets in me a desire of revenge and reparation to us both (for in this I hold myself equally interested with you), whereupon not doubting of your accustomed care and industry in my service, I assure you of the continuance of my favour and protection to you, and that in deeds more than in words I shall show myself to be your most assured constant friend. C. R." These letters have lately been republished by Dr. Lingard, _Hist. of Eng._ x. note B, from Warner's _Hist. of the Civil War in Ireland_. The cipher may be found in the _Biographia Britannica_, under the article Bales. Dr. L. endeavours to prove that Glamorgan acted all along with Ormond's privity; and it must be owned that the expression in the king's last letter about revenge and reparation, which Dr. L. does not advert to, has a very odd appearance. The controversy is, I suppose, completely at an end; so that it is hardly necessary to mention a letter from Glamorgan, then Marquis of Worcester, to Clarendon after the restoration, which has every internal mark of credibility, and displays the king's unfairness. _Clar. State Pap._ ii. 201, and Lingard, _ubi supra_. It is remarkable that the transaction is never mentioned in the _History of the Rebellion_. The noble author was, however, convinced of the genuineness of Glamorgan's commission, as appears by a letter to Secretary Nicholas. "I must tell you, I care not how little I say in that business of Ireland, since those strange powers and instructions given to your favourite Glamorgan, which appear to be so inexcusable to justice, piety, and prudence. And I fear there is very much in that transaction of Ireland, both before and since that you and I were never thought wise enough to be advised with in. Oh! Mr. Secretary, those stratagems have given me more sad hours than all the misfortunes in war which have befallen the king, and look like the effect of God's anger towards us." _Id._ p. 237. See also a note of Mr. Laing, _Hist. of Scotland_, iii. 557, for another letter of the king to Glamorgan, from Newcastle, in July 1646, not less explicit than the foregoing. [321] Burnet's _Mem. of Dukes of Hamilton_, 284. Baillie's letters, throughout 1646, indicate his apprehension of the prevalent spirit, which he dreaded as implacable, not only to monarchy, but to presbytery and the Scots nation. "The leaders of the people seem inclined to have no shadow of a king, to have liberty for all religions, a lame Erastian presbytery, to be so injurious to us as to chase us hence with the sword."--148. March 31, 1646. "The common word is, that they will have the king prisoner. Possibly they may grant to the prince to be a duke of Venice. The militia must be absolutely, for all time to come, in the power of the parliament, alone," etc.--200. On the king's refusal of the propositions sent to Newcastle, the Scots took great pains to prevent a vote against him. 226. There was still, however, danger of this. 236, Oct. 13, and p. 243. His intrigues with both parties, the presbyterians and independents, were now known; and all sides seem to have been ripe for deposing them. 245. These letters are a curious contrast to the idle fancies of a speedy and triumphant restoration, which Clarendon himself as well as others of less judgment seem to have entertained. [322] "Though he should swear it," says Baillie, "no man will believe that he sticks upon episcopacy for any conscience."--ii. 205. And again: "It is pity that base hypocrisy, when it is pellucid, shall still be entertained. No oaths did ever persuade me, that episcopacy was ever adhered to on any conscience."--224. This looks at first like mere bigotry. But, when we remember that Charles had abolished episcopacy in Scotland, and was ready to abolish protestantism in Ireland, Baillie's prejudices will appear less unreasonable. The king's private letters in the _Clarendon Papers_ have convinced me of his mistaken conscientiousness about church government; but of this his contemporaries could not be aware. [323] Hollis maintains that the violent party were very desirous that the Scots should carry the king with them, and that nothing could have been more injurious to his interests. If we may believe Berkley, who is much confirmed by Baillie, the presbyterians had secretly engaged to the Scots that the army should be disbanded, and the king brought up to London with honour and safety. "Memoirs of Sir J. Berkley," in Maseres's _Tracts_, i. 358; Baillie, ii. 257. This affords no bad justification of the Scots for delivering him up. "It is very like," says Baillie, "if he had done any duty, though he had never taken the covenant, but permitted it to have been put in an act of parliament in both kingdoms, and given so satisfactory an answer to the rest of the propositions, as easily he might, and sometimes I know he was willing, certainly Scotland had been for him as one man: and the body of England, upon many grounds, was upon a disposition to have so cordially embraced him, that no man, for his life, durst have muttered against his present restitution. But remaining what he was in all his maxims, a full Canterburian, both in matters of religion and state, he still inclined to a new war; and for that end resolved to go to Scotland. Some great men there pressed the equity of Scotland's protecting of him on any terms. This untimeous excess of friendship has ruined that unhappy prince; for the better party finding the conclusion of the king's coming to Scotland, and thereby their own present ruin, and the ruin of the whole cause, the making the malignants masters of church and state, the drawing the whole force of England upon Scotland for their perjurious violation of their covenant, they resolved by all means to cross that design."--P. 253. [324] The votes for payment of the sum of £400,000 to the Scots are on Aug. 21, 27, and Sept. 1; though it was not fully agreed between the two nations till Dec. 8. Whitelock, 220, 229. But Whitelock dates the commencement of the understanding as to the delivery of the king about Dec. 24. P. 231. See Commons' Journals. Baillie, ii. 246, 253; Burnet's _Memoirs of Hamiltons_, 293, etc.; Laing, iii. 362; and Mr. Godwin's _History of the Commonwealth_, ii. 258; a work in which great attention has been paid to the order of time. [325] Journals, Aug. and Sept.; Godwin, _ubi supra_; Baillie, ii. _passim_. [326] Baillie, who, in Jan. 1644, speaks of the independents as rather troublesome than formidable, and even says: "No man, I know, in either of the houses of any note is for them" (437); and that "Lord Say's power and reputation is none at all;" admits, in a few months, the alarming increase of independency and sectarianism in the Earl of Manchester's army; more than two parts in three of the officers and soldiers being with them, and those the most resolute and confident; though they had no considerable force either in Essex's or Waller's army, nor in the assembly of divines or the parliament, ii. 5, 19, 20. This was owing in a great degree to the influence, at that period, of Cromwell over Manchester. "The man," he says, "is a very wise and active head, universally well beloved, as religious and stout; being a known independent, and most of the soldiers who love new ways put themselves under his command."--60. [327] The independent party, or at least some of its most eminent members, as Lord Say and Mr. St. John, were in a secret correspondence with Oxford, through the medium of Lord Saville, in the spring of 1645, if we believe Hollis, who asserts that he had seen their letters, asking offices for themselves. _Mem. of Hollis_, sect. 43. Baillie refers this to an earlier period, the beginning of 1644 (i. 427); and I conceive that Hollis has been incorrect as to the date. The king, however, was certainly playing a game with them in the beginning of 1646, as well as with the presbyterians, so as to give both parties an opinion of his insincerity. _Clarendon State Papers_, 214; and see two remarkable letters written by his order to Sir Henry Vane, 226, urging an union, in order to overthrow the presbyterian government. [328] The principles of the independents are set forth candidly, and even favourably, by Collier, 829; as well as by Neal, ii. 98. For those who are not much acquainted with ecclesiastical distinction, it may be useful to mention the two essential characteristics of this sect, by which they differed from the presbyterians. The first was, that all churches or separate congregations were absolutely independent of each other as to jurisdiction or discipline; whence they rejected all synods and representative assemblies as possessing authority; though they generally admitted, to a very limited degree, the alliance of churches for mutual counsel and support. Their second characteristic was the denial of spiritual powers communicated in ordination by apostolical succession; deeming the call of a congregation a sufficient warrant for the exercise of the ministry. See Orme's _Life of Owen_, for a clear view and able defence of the principles maintained by this party. I must add, that Neal seems to have proved that the independents, as a body, were not systematically adverse to monarchy. [329] Edwards's _Gangræna_, a noted book in that age, enumerates one hundred and seventy-six heresies, which, however, are reduced by him to sixteen heads; and these seem capable of further consideration. Neal, 249. The house ordered a general fast, Feb. 1647, to beseech God to stop the growth of heresy and blasphemy. Whitelock, 236; a presbyterian artifice to alarm the nation. [330] _Parl. Hist._ ii. 1479. They did not meet till July 1, 1643. Rushw. Abr. v. 123; Neal, 42; Collier, 823. Though this assembly showed abundance of bigotry and narrowness, they were by no means so contemptible as Clarendon represents them (ii. 423); and perhaps equal in learning, good sense, and other merits, to any lower house of convocation that ever made a figure in England. [331] Whitelock, 71; Neal, 103. Selden, who owed no gratitude to the episcopal church, was from the beginning of its dangers a steady and active friend, displaying, whatever may have been said of his timidity, full as much courage as could reasonably be expected from a studious man advanced in years. Baillie, in 1641, calls him "the avowed proctor of the bishops" (i. 245); and when provoked by his Erastian opposition in 1646, presumes to talk of his "insolent absurdity" (ii. 96). Selden sat in the assembly of divines; and by his great knowledge of the ancient languages and of ecclesiastical antiquities, as well as by his sound logic and calm clear judgment, obtained an undeniable superiority, which he took no pains to conceal. [332] Scobell; Rushw. Abr. v. 576; _Parl. Hist._ iii. 444; Neal, 199. The latter says, this did not pass the Lords till June 6. But this is not so. Whitelock very rightly opposed the prohibition of the use of the common prayer, and of the silencing episcopal ministers, as contrary to the principle of liberty of conscience avowed by the parliament, and like what had been complained of in the bishops. 226, 239, 281. But, in Sept. 1647, it was voted that the indulgence in favour of tender consciences should not extend to tolerate the common prayer. _Id._ 274. [333] The Erastians were named from Erastus, a German physician in the sixteenth century. The denomination is often used in the present age ignorantly, and therefore indefinitely; but I apprehend that the fundamental principle of his followers was this: That in a commonwealth where the magistrate professes Christianity, it is not convenient that offences against religion and morality should be punished by the censures of the church, especially by excommunication. Probably he may have gone farther, as Selden seems to have done (Neal, 194), and denied the right of exclusion from church communion, even without reference to the temporal power; but the limited proposition was of course sufficient to raise the practical controversy. The Helvetic divines, Gualter and Bullinger, strongly concurred in this with Erastus; "Contendimus disciplinam esse debere in ecclesiâ, sed satis esse, si ea administretur a magistratu." Erastus, _de Excommunicatione_, p. 350; and a still stronger passage in p. 379. And it is said, that Archbishop Whitgift caused Erastus's book to be printed at his own expense. See one of Warburton's notes on Neal. Calvin, and the whole of his school, held, as is well known, a very opposite tenet. See _Erasti Theses de Excommunicatione_, 4to, 1579. The ecclesiastical constitution of England is nearly Erastian in theory, and almost wholly so in practice. Every sentence of the spiritual judge is liable to be reversed by a civil tribunal, the court of delegates, by virtue of the king's supremacy over all causes. And, practically, what is called church discipline, or the censures of ecclesiastical governors for offences, has gone so much into disuse, and what remains is so contemptible, that I believe no one, except those who derive a little profit from it, would regret its abolition. "The most part of the House of Commons," says Baillie, ii. 149, "especially the lawyers, whereof there are many, and divers of them very able men, are either half or whole Erastians, believing no church government to be of divine right, but all to be a human constitution depending on the will of the magistrate." "The pope and king," he says in another place (196), "were never more earnest for the headship of the church than the plurality of this parliament." See also p. 183; and Whitelock, 169. [334] _Parl. Hist._ 459 _et alibi_; Rushw. Abr. v. 578 _et alibi_; Whitelock, 165, 169, 173, 176 _et post_; Baillie's _Letters_, _passim_; Neal, 23, etc., 191 _et post_; Collier, 841. The assembly attempted to sustain their own cause by counter votes; and, the minority of independents and Erastians having withdrawn, it was carried with a single dissent of Lightfoot, that Christ had established a government in his church independent of the civil magistrate. Neal, 223. [335] Neal, 228. Warburton says, in his note on this passage, that "the presbyterian was _to all intents and purposes_ the established religion during the time of the commonwealth." But, as coercive discipline and synodical government are no small intents and purposes of that religion, this assertion requires to be modified, as it has been in my text. Besides which, there were many ministers of the independent sect in benefices, some of whom probably had never received ordination. "Both baptists and independents," says a very well informed writer of the latter denomination, "were in the practice of accepting the livings, that is, the temporalities of the church. They did not, however, view themselves as parish ministers, and bound to administer all the ordinances of religion to the parish population. They occupied the parochial edifices, and received a portion of the tithes for their maintenance; but in all other respects acted according to their own principles." Orme's _Life of Owen_, 136. This he thinks would have produced very serious evils, if not happily checked by the Restoration. "During the commonwealth," he observes afterwards (245), "no system of church government can be considered as having been properly or fully established. The presbyterians, if any, enjoyed this distinction." [336] The city began to petition for the establishment of presbytery, and against toleration of sectaries, early in 1646; and not long after came to assume what seemed to the Commons too dictatorial a tone. This gave much offence, and contributed to drive some members into the opposite faction. Neal, 193, 221, 241; Whitelock, 207, 240. [337] Vol. ii. 268. See also 207, and other places. This is a remark that requires attention; many are apt to misunderstand the question. "For this point (toleration) both they and we contend," says Baillie, "tanquam pro aris et focis."--ii. 175. "Not only they praise your magistrate" (writing to a Mr. Spang in Holland), "who for policy gives some secret tolerance to divers religions, wherein, as I conceive, your divines preach against them as great sinners, but avow that by God's command the magistrate is discharged to put the least discourtesy on any man, Jew, Turk, Papist, Socinian, or whatever, for his religion."--18. See also 61, and many other passages. "The army" (says Hugh Peters in a tract, entitled "A Word for the Army, and Two Words to the People," 1647) "never hindered the state from a state religion, having only wished to enjoy now what the puritans begged under the prelates; when we desire more, blame us, and shame us." In another, entitled "Vox Militaris," the author says: "We did never engage against this platform, nor for that platform, nor ever will, except better informed; and therefore, if the state establisheth presbytery, we shall never oppose it." The question of toleration, in its most important shape, was brought at this time before parliament, on occasion of one Paul Best who had written against the doctrine of the trinity. According to the common law, heretics, on being adjudged by the spiritual court, were delivered over to be burned under the writ de hæretico comburendo. This punishment had been inflicted five times under Elizabeth; on Wielmacker and Ter Wort, two Dutch anabaptists, who, like many of that sect, entertained Arian tenets, and were burned in Smithfield in 1575; on Matthew Hammond in 1579, Thomas Lewis in 1583, and Francis Ket in 1588; all burned by Scambler, Bishop of Norwich. It was also inflicted on Bartholomew Legat and Edward Wightman, under James, in 1614; the first burned by King, Bishop of London, the second by Neile of Litchfield. A third, by birth a Spaniard, incurred the same penalty; but the compassion of the people showed itself so strongly at Legat's execution that James thought it expedient not to carry the sentence into effect. Such is the venomous and demoralising spirit of bigotry, that Fuller, a writer remarkable for good nature and gentleness, expresses his indignation at the pity which was manifested by the spectators of Legat's sufferings. _Church Hist._ part ii. p. 62. In the present case of Paul Best, the old sentence of fire was not suggested by any one; but an ordinance was brought in, Jan. 1646, to punish him with death. Whitelock, 190. Best made, at length, such an explanation as was accepted (Neal, 214); but an ordinance to suppress blasphemies and heresies as capital offences was brought in. Commons' Journals, April 1646. The independents gaining strength, this was long delayed; but the ordinance passed both houses, May 2, 1648. _Id._ 303. Neal (338) justly observes, that it shows the governing presbyterians would have made a terrible use of their power, had they been supported by the sword of the civil magistrate. The denial of the trinity, incarnation, atonement, or inspiration of any book of the Old or New Testament, was made felony. Lesser offences, such as anabaptism, or denying the lawfulness of presbyterian government, were punishable by imprisonment till the party should recant. It was much opposed, especially by Whitelock. The writ de hæretico comburendo, as is well known, was taken away by act of parliament in 1677. [338] "In all New England, no liberty of living for a presbyterian. Whoever there, were they angels for life and doctrine, will essay to set up a different way from them [the independents], shall be sure of present banishment." Baillie, ii. 4, also 17. I am surprised to find a late writer of that country (Dwight's _Travels in New England_) attempt to extenuate at least the intolerance of the independents towards the quakers, who came to settle there; and which, we see, extended also to the presbyterians. But Mr. Orme, with more judgment, observes that the New England congregations did not sufficiently adhere to the principle of independency, and acted too much as a body; to which he ascribes their persecution of the quakers and others. _Life of Owen_, 335. It is certain that the congregational scheme leads to toleration, as the national church scheme is adverse to it, for manifold reasons which the reader will discover. [339] Though the writings of Chillingworth and Hales are not directly in behalf of toleration, no one could relish them without imbibing its spirit in the fullest measure. The great work of Jeremy Taylor, on the _Liberty of Prophesying_, was published in 1647; and, if we except a few concessions to the temper of the times, which are not reconcilable to its general principles, has left little for those who followed him. Mr. Orme admits that the remonstrants of Holland maintained the principles of toleration very early (p. 50); but refers to a tract by Leonard Busher, an independent, in 1614, as "containing the most enlightened and scriptural views of religious liberty."--P. 99. He quotes other writings of the same sect under Charles I. [340] Several proofs of this occur in the _Clarendon State Papers_. A letter, in particular, from Colepepper to Digby, in Sept. 1645, is so extravagantly sanguine, considering the posture of the king's affairs at that time, that, if it was perfectly sincere, Colepepper must have been a man of less ability than has generally been supposed. Vol. ii. p. 188. Neal has some sensible remarks on the king's mistake in supposing that any party which he did not join must in the end be ruined. P. 268. He had not lost this strange confidence after his very life had become desperate; and told Sir John Bowring, when he advised him not to spin out the time at the treaty of Newport, that "any interests would be glad to come in with him." See Bowring's _Memoirs_ in Halifax's _Miscellanies_, 132. [341] Baillie's letters are full of this feeling, and must be reckoned fair evidence, since no man could be more bigoted to presbytery, or more bitter against the royalist party. I have somewhere seen Baillie praised for his mildness. His letters give no proof of it. Take the following specimens: "Mr. Maxwell of Ross has printed at Oxford so desperately malicious an invective against our assemblies and presbyteries, that, however I could hardly consent to the hanging of Canterbury or of any jesuit, yet I could give my sentence freely against that unhappy man's life."--ii. 99. "God has struck Coleman with death; he fell in an ague, and after three or four days expired. It is not good to stand in Christ's way."--P. 199. Baillie's judgment of men was not more conspicuous than his moderation. "Vane and Cromwell are of horrible hot fancies to put all in confusion, but not of any deep reach. St. John and Pierrepont are more stayed, but not great heads."--P. 258. The drift of all his letters is, that every man who resisted the _jus divinum_ of presbytery was knave or fool, if not both. They are, however, eminently serviceable as historical documents. [342] "Now for my own particular resolution," he says in a letter to Digby, March 26, 1646, "it is this. I am endeavouring to get to London, so that the conditions may be such as a gentleman may own, and that the rebels may acknowledge me king; being not without hope that I shall be able so to draw either the presbyterians or independents to side with me for extirpating the one or the other, that I shall be really king again." Carte's _Ormond_, iii. 452; quoted by Mr. Brodie, to whom I am indebted for the passage. I have mentioned already his overture about this time to Sir Henry Vane through Ashburnham. [343] Clarendon, followed by Hume and several others, appears to say that Ragland Castle in Monmouthshire, defended by the Marquis of Worcester, was the last that surrendered; namely, in August 1646. I use the expression _appears to say_, because the last edition, which exhibits his real text, shows that he paid this compliment to Pendennis Castle in Cornwall, and that his original editors (I suppose to do honour to a noble family), foisted in the name of Ragland. It is true, however, of neither. The North Welsh castles held out considerably longer; that of Harlech was not taken till April 1647, which put an end to the war. Whitelock. Clarendon, still more unyielding than his master, extols the long resistance of his party, and says that those who surrendered at the first summons obtained no better terms than they who made the stoutest defence; as if that were a sufficient justification for prolonging a civil war. In fact, however, they did the king some harm; inasmuch as they impeded the efforts made in parliament to disband the army. Several votes of the Commons show this; see the Journals of 12th May and 31st July 1646. [344] The resolution to disband Fairfax's regiment next Tuesday at Chelmsford passed 16th May 1647, by 136 to 115; Algernon Sidney being a teller of the noes. Commons' Journals. In these votes the house, that is, the presbyterian majority, acted with extreme imprudence; not having provided for the payment of the army's arrears at the time they were thus disbanding them. Whitelock advised Hollis and his party not to press the disbanding; and on finding them obstinate, drew off, as he tells us, from that connection, and came nearer to Cromwell. P. 248. This, however, he had begun to do rather earlier. Independently of the danger of disgusting the army, it is probable that, as soon as it was disbanded, the royalists would have been up in arms. For the growth of this discontent, day by day, peruse Whitelock's Journal for March and the three following months, as well as the _Parliamentary History_. [345] It was only carried by 159 to 147, March 5, 1647, that the forces should be commanded by Fairfax. But on the 8th, the house voted without a division, that no officer under him should be above the rank of a colonel, and that no member of the house should have any command in the army. It is easy to see at whom this was levelled. Commons' Journals. They voted at the same time that the officers should all take the covenant, which had been rejected two years before; and, by a majority of 136 to 108, that they should all conform to the government of the church established by both houses of parliament. [346] _Clar. State Papers_, ii. 365. The army, in a declaration not long after the king fell into their power, June 24, use these expressions: "We clearly profess that we do not see how there can be any peace to this kingdom firm or lasting, without a due provision for the rights, quiet, and immunity of his majesty, his royal family, and his late partakers."--_Parl. Hist._ 647. [347] Hollis censures the speakers of the two houses and others who fled to the army from this mob; the riot being "a sudden tumultuous thing of young idle people without design." Possibly this might be the case; but the tumult at the door of the house, 26th July, was such that it could not be divided. Their votes were plainly null, as being made under duress. Yet the presbyterians were so strong in the Commons that a resolution to annul all proceedings during the speaker's absence was lost by 97 to 95, after his return; and it was only voted to repeal them. A motion to declare that the houses, from 26th July to 6th August, had been under a force, was also lost by 78 to 75. Journals, 9th and 17th August. The Lords, however, passed an ordinance to this effect; and after once more rejecting it, the Commons agreed on August 20, with a proviso that no one should be called in question for what had been done. [348] These transactions are best read in the Commons' Journals, and _Parliamentary History_, and next to those, in Whitelock. Hollis relates them with great passion; and Clarendon, as he does everything else that passed in London, very imperfectly. He accounts for the Earl of Manchester and the Speaker Lenthal's retiring to the army by their persuasion that the chief officers had nearly concluded a treaty with the king, and resolved to have their shares in it. This is a very unnecessary surmise. Lenthal was a poor-spirited man, always influenced by those whom he thought the strongest, and in this instance, according to Ludlow (p. 206) persuaded with difficulty by Haslerig to go to the army. Manchester indeed had more courage and honour; but he was not of much capacity, and his parliamentary conduct was not systematic. But upon the whole it is obvious, on reading the list of names (_Parl. Hist._ 757), that the king's friends were rather among those who staid behind, especially in the Lords, than among those who went to the army. Seven of eight peers who continued to sit from 26th July to 6th of August 1647, were impeached for it afterwards (_Parl. Hist._ 764), and they were all of the most moderate party. If the king had any previous connection with the city, he acted very disingenuously in his letter to Fairfax, Aug. 3, while the contest was still pending; wherein he condemns the tumults, and declares his unwillingness that his friends should join with the city against the army, whose proposals he had rejected the day before with an imprudence of which he was now sensible. This letter, as actually sent to Fairfax, is in the _Parliamentary History_, 734, and may be compared with a rough draught of the same, preserved in _Clarendon Papers_, 373, from which it materially differs, being much sharper against the city. [349] Fairfax's "Memoirs" in Maseres's _Collection of Tracts_, vol. i. p. 447. "By this," says Fairfax, who had for once found a man less discerning of the times than himself, "I plainly saw the broken reed he leaned on. The agitators had brought the king into an opinion that the army was for him." Ireton said plainly to the king, "Sir, you have an intention to be the arbitrator between the parliament and us; and we mean to be so between your majesty and the parliament."--Berkley's "Memoirs," _ibid._ p. 360. This folly of the king, if Mrs. Hutchinson is well informed, alienated Ireton, who had been more inclined to trust him than is commonly believed. "Cromwell," she says, "was at that time so incorruptibly faithful to his trust and the people's interest, that he could not be drawn in to practise even his own usual and natural dissimulation on this occasion. His son-in-law Ireton, that was as faithful as he, was not so fully of the opinion, till he had tried it, and found to the contrary, but that the king might have been managed to comply with the public good of his people, after he could no longer uphold his own violent will; but upon some discourses with him, the king uttering these words to him, 'I shall play my game as well as I can,' Ireton replied, 'If your majesty have a game, you must give us also the liberty to play ours.' Colonel Hutchinson privately discoursing with his cousin about the communications he had had with the king, Ireton's expressions were these: 'He gave us words, and we paid him in his own coin, when we found he had no real intention to the people's good, but to prevail, by our factions, to regain by art what he had lost in fight.'"--P. 274. It must be said for the king that he was by no means more sanguine or more blind than his distinguished historian and minister. Clarendon's private letters are full of strange and absurd expectations. Even so late as October 1647, he writes to Berkley in high hopes from the army, and presses him to make no concessions except as to persons. "If they see you will not yield, they must; for sure they have as much or more need of the king than he of them."--P. 379. The whole tenor, indeed, of Clarendon's correspondence demonstrates that, notwithstanding the fine remarks occasionally scattered through his history, he was no practical statesman, nor had any just conception, at the time, of the course of affairs. He never flinched from one principle, not very practicable or rational in the circumstances of the king; that nothing was to be receded from which had ever been desired. This may be called magnanimity; but no foreign or domestic dissension could be settled, if all men were to act upon it, or if all men, like Charles and Clarendon, were to expect that Providence would interfere to support what seems to them the best, that is, their own cause. The following passage is a specimen: "Truly I am so unfit to bear a part in carrying on this new contention [by negotiation and concession], that I would not, to preserve myself, wife, and children from the lingering death of want by famine (for a sudden death would require no courage), consent to the lessening any part, which I take to be in the function of a bishop, or the taking away the smallest prebendary in the church, or to be bound not to endeavour to alter any such alteration."--_Id._ vol. iii. p. 2, Feb. 4, 1648. [350] _Parl. Hist._ 738. Clarendon talks of these proposals as worse than any the king had ever received from the parliament; and Hollis says they "dissolved the whole frame of the monarchy." It is hard to see, however, that they did so in a greater degree than those which he had himself endeavoured to obtain as a commissioner at Uxbridge. As to the church, they were manifestly the best that Charles had ever seen. As to his prerogative and the power of the monarchy, he was so thoroughly beaten, that no treaty could do him any substantial service; and he had, in truth, only to make his election, whether to be the nominal chief of an aristocratical or a democratical republic. In a well-written tract, called "Vox Militaris," containing a defence of the army's proceedings and intentions, and published apparently in July 1647, their desire to preserve the king's rights, according to their notion of them, and the general laws of the realm, is strongly asserted. [351] The precise meaning of this word seems obscure. Some have supposed it to be a corruption of adjutators, as if the modern term adjutant meant the same thing. But I find agitator always so spelled in the pamphlets of the time. [352] Berkley's _Memoirs_, 366. He told Lord Capel about this time that he expected a war between Scotland and England; that the Scots hoped for the assistance of the presbyterians; and that he wished his own party to rise in arms on a proper conjuncture, without which he could not hope for much benefit from the others. Clarendon, v. 476. [353] Berkley, 368, etc. Compare the letter of Ashburnham, published in 1648, and reprinted in 1764, but probably not so full as the MS. in the Earl of Ashburnham's possession; also the Memoirs of Hollis, Huntingdon, and Fairfax, which are all in Maseres's Collection; also Ludlow, Hutchinson, Clarendon, Burnet's _Memoirs of Hamilton_, and some despatches in 1647 and 1648, from a royalist in London, printed in the appendix to the second volume of the _Clarendon Papers_. This correspondent of Secretary Nicholas believes Cromwell and Ireton to have all along planned the king's destruction, and set the levellers on, till they proceeded so violently, that they were forced to restrain them. This also is the conclusion of Major Huntingdon, in his Reasons for laying down his Commission. But the contrary appears to me more probable. Two anecdotes, well known to those conversant in English history, are too remarkable to be omitted. It is said by the editor of Lord Orrery's _Memoirs_, as a relation which he had heard from that noble person, that in a conversation with Cromwell concerning the king's death, the latter told him, he and his friends had once a mind to have closed with the king, fearing that the Scots and presbyterians might do so; when one of their spies, who was of the king's bedchamber, gave them information of a letter from his majesty to the queen, sewed up in the skirt of a saddle, and directing them to an inn where it might be found. They obtained the letter accordingly, in which the king said, that he was courted by both factions, the Scots presbyterians and the army; that those which bade fairest for him should have him; but he thought he should rather close with the Scots than the other. Upon this, finding themselves unlikely to get good terms from the king, they from that time vowed his destruction. Carte's _Ormond_, ii. 12. A second anecdote is alluded to by some earlier writers, but is particularly told in the following words, by Richardson, the painter, author of some anecdotes of Pope, edited by Spence. "Lord Bolingbroke told us, June 12, 1742 (Mr. Pope, Lord Marchmont, and myself), that the second Earl of Oxford had often told him that he had seen, and had in his hands, an original letter that Charles the First wrote to his queen, in answer to one of hers that had been intercepted, and then forwarded to him; wherein she had reproached him for having made those villains too great concession, viz. that Cromwell should be lord lieutenant of Ireland for life without account; that that kingdom should be in the hands of the party, with an army there kept which should know no head but the lieutenant; that Cromwell should have a garter, etc.: That in this letter of the king's it was said, that she should leave him to manage, who was better informed of all circumstances than she could be; but she might be entirely easy as to whatever concessions he should make them; for that he should know in due time how to deal with the rogues, who, instead of a silken garter, should be fitted with a hempen cord. So the letter ended; which answer as they waited for, so they intercepted accordingly; and it determined his fate. This letter Lord Oxford said he had offered £500 for." The authenticity of this latter story has been constantly rejected by Hume and the advocates of Charles in general; and, for one reason among others, that it looks like a misrepresentation of that told by Lord Orrery, which both stands on good authority, and is perfectly conformable to all the memoirs of the time. I have, however, been informed, that a memorandum nearly conformable to Richardson's anecdote is extant, in the handwriting of Lord Oxford. It is possible that this letter is the same with that mentioned by Lord Orrery; and in that case was written in the month of October. Cromwell seems to have been in treaty with the king as late as September; and advised him, according to Berkley, to reject the proposals of the parliament in that month. Herbert mentions an intercepted letter of the queen (_Memoirs_, 60); and even his story proves that Cromwell and his party broke off with Charles from a conviction of his dissimulation. See Laing's note, iii. 562; and the note by Strype, therein referred to, on Kennet's _Complete Hist. of England_, iii. 170; which speaks of a "constant tradition" about this story, and is more worthy of notice, because it was written before the publication of Lord Orrery's _Memoirs_, or of the _Richardsoniana_. [354] Ashburnham gives us to understand that the king had made choice of the Isle of Wight, previously to his leaving Hampton Court, but probably at his own suggestion. This seems confirmed by the king's letter in Burnet's _Mem. of Dukes of Hamilton_, 326. Clarendon's account is a romance, with little mixture probably of truth. Ashburnham's _Narrative_, published in 1830, proves that he suggested the Isle of Wight, in consequence of the king's being forced to abandon a design he had formed of going to London, the Scots commissioners retracting their engagement to support him. [355] _Parl. Hist._ 799. [356] Jan. 15. This vote was carried by 141 to 92. _Id._ 831. And see Append. to 2nd vol. of _Clar. State Papers_. Cromwell was now vehement against the king, though he had voted in his favour on Sept. 22. Journals, and Berkley, 372. A proof that the king was meant to be wholly rejected is, that at this time, in the list of the navy, the expression "his majesty's ship," was changed to "the parliament's ship." Whitelock, 291. The four bills were founded on four propositions (for which I refer to Hume or the _Parliamentary History_, not to Clarendon, who has mis-stated them) sent down from the Lords. The lower house voted to agree with them by 115 to 106; Sidney and Evelyn tellers for the ayes, Martin and Morley for the noes. The increase of the minority is remarkable, and shows how much the king's refusal of the terms offered him in September, and his escape from Hampton Court, had swollen the commonwealth party; to which, by the way, Colonel Sidney at this time seems not to have belonged. Ludlow says, that party hoped the king would not grant the four bills (i. 224). The Commons published a declaration of their reasons for making no further addresses to the king, wherein they more than insinuate his participation in the murder of his father by Buckingham. _Parl. Hist._ 847. [357] Clarendon, whose aversion to the Scots warps his judgment, says that this treaty contained many things dishonourable to the English nation. _Hist._ v. 532. The king lost a good deal in the eyes of this uncompromising statesman, by the concessions he made in the Isle of Wight. _State Papers_, 387. I cannot, for my own part, see anything derogatory to England in the treaty; for the temporary occupation of a few fortified towns in the north can hardly be called so. Charles, there is some reason to think, had on a former occasion made offers to the Scots far more inconsistent with his duty to this kingdom. [358] Clarendon; May, "Breviate of the Hist. of the Parliament," in Maseres's _Tracts_, i. 113; Whitelock, 307, 317, etc. In a conference between the two houses, July 25, 1648, the Commons gave as a reason for insisting on the king's surrender of the militia as a preliminary to a treaty, that such was the disaffection to the parliament on all sides, that without the militia they could never be secure. Rush. Abr. vi. 444. "The chief citizens of London," says May, 122, "and others called presbyterians, though the presbyterian Scots abominated this army, wished good success to these Scots no less than the malignants did. Whence let the reader judge of the times." The fugitive sheets of this year, such as the "Mercurius Aulicus," bear witness to the exulting and insolent tone of the royalists. The chuckle over Fairfax and Cromwell, as if they had caught a couple of rats in a trap. [359] April 28, 1648; _Parl. Hist._ 883. [360] June 6. These peers were the Earls of Suffolk, Middlesex, and Lincoln, Lords Willoughby of Parham, Berkley, Hunsdon, and Maynard. They were impeached for sitting in the house during the tumults from 26th of July to 6th of August 1647. The Earl of Pembroke, who had also continued to sit, merely because he was too stupid to discover which party was likely to prevail, escaped by truckling to the new powers. [361] June 8. [362] See _Parl. Hist._ 823, 892, 904, 921, 924, 959, 996, for the different votes on this subject, wherein the presbyterians gradually beat the independent or republican party, but with very small and precarious majorities. [363] Clarendon, vi. 155. He is very absurd in imagining that any of the parliamentary commissioners would have been satisfied with "an act of indemnity and oblivion." That the parliament had some reason to expect the king's firmness of purpose to give way, in spite of all his haggling, will appear from the following short review of what had been done. 1. At Newmarket, in June 1642, he absolutely refused the nineteen propositions tendered to him by the Lords and Commons. 2. In the treaty of Oxford, March 1643, he seems to have made no concession, not even promising an amnesty to those he had already excluded from pardon. 3. In the treaty of Uxbridge, no mention was made on his side of exclusion from pardon; he offered to vest the militia for seven years in commissioners jointly appointed by himself and parliament, so that it should afterwards return to him, and to limit the jurisdiction of the bishops. 4. In the winter of 1645, he not only offered to disband his forces, but to let the militia be vested for seven years in commissioners to be appointed by the two houses, and afterwards to be settled by bill; also to give the nomination of officers of state and judges _pro hâc vice_ to the houses. 5. He went no farther in substance till May 1647; when he offered the militia for ten years, as well as great limitations of episcopacy, and the continuance of presbyterian government for three years; the whole matter to be afterwards settled by bill on the advice of the assembly of divines, and twenty more of his own nomination. 6. In his letter from Carisbrook, Nov. 1647, he gave up the militia for his life. This was in effect to sacrifice almost everything as to immediate power; but he struggled to save the church lands from confiscation, which would have rendered it hardly practicable to restore episcopacy in future. His further concessions in the treaty of Newport, though very slowly extorted, were comparatively trifling. What Clarendon thought of the treaty of Newport may be imagined. "You may easily conclude," he writes to Digby, "how fit a counsellor I am like to be, when the best that is proposed is that which I _would not consent unto to preserve the kingdom from ashes_. I can tell you worse of myself than this; which is, that there may be some reasonable expedients which possibly might in truth restore and preserve all, in which I could bear no part."--P. 459. See also p. 351 and 416. I do not divine what he means by this. But what he could not have approved was, that the king had no thoughts of dealing sincerely with the parliament in this treaty, and gave Ormond directions to obey all his wife's commands, but not to obey any further orders he might send, nor to be startled at his great concessions respecting Ireland, for they would come to nothing. Carte's _Papers_, i. 185. See Mr. Brodie's remarks on this, iv. 143-146. He had agreed to give up the government of Ireland for twenty years to the parliament. In his answer to the propositions at Newcastle, sent in May 1647, he had declared that he would give full satisfaction with respect to Ireland. But he thus explains himself to the queen: "I have so couched that article that, if the Irish give me cause, I may interpret it enough to their advantage. For I only say that I will give them (the two houses) full satisfaction as to the management of the war, nor do I promise to continue the war; so that, if I find reason to make a good peace there, my engagement is at an end. Wherefore make this my interpretation known to the Irish." _Clar. State Papers._ "What reliance," says Mr. Laing, from whom I transcribe this passage (which I cannot find in the book quoted), "could parliament place at the beginning of the dispute, or at any subsequent period, on the word or moderation of a prince, whose solemn and written declarations were so full of equivocation?" _Hist. of Scotland_, iii. 409. It may here be added that, though Charles had given his parole to Colonel Hammond, and had the sentinels removed in consequence, he was engaged during most part of his stay at Carisbrook in schemes for an escape. See Col. Cooke's "Narrative," printed with Herbert's _Memoirs_; and in Rushw. Abr. vi. 534. But his enemies were apprised of this intention, and even of an attempt to escape by removing a bar of his window, as appears by the letters from the committee of Derby House, Cromwell, and others, to Col. Hammond, published in 1764. [364] Clarendon mentions an expression that dropped from Henry Martin in conversation, not long after the meeting of the parliament: "I do not think one man wise enough to govern us all." This may doubtless be taken in a sense perfectly compatible with our limited monarchy. But Martin's republicanism was soon apparent; he was sent to the Tower in August 1643, for language reflecting on the king. _Parl. Hist._ 161. A Mr. Chillingworth had before incurred the same punishment for a like offence, December 1, 1641. Nalson, ii. 714. Sir Henry Ludlow, father of the regicide, was also censured on the same account. As the opposite faction grew stronger, Martin was not only restored to his seat, but the vote against him was expunged. Vane, I presume, took up republican principles pretty early; perhaps also Haslerig. With these exceptions, I know not that we can fix on any individual member of parliament the charge of an intention to subvert the constitution till 1646 or 1647. [365] Pamphlets may be found as early as 1643 which breathe this spirit; but they are certainly rare till 1645 and 1646. Such are "Plain English," 1643; "The Character of an Anti-malignant," 1645; "Last Warning to all the Inhabitants of London," 1647. [366] Charles Louis, elector palatine, elder brother of the Princes Rupert and Maurice, gave cause to suspect that he was looking towards the throne. He left the king's quarters where he had been at the commencement of the war, and retired to Holland; whence he wrote, as well as his mother, the Queen of Bohemia, to the parliament, disclaiming and renouncing Prince Rupert, and begging their own pensions might be paid. He came over to London in August 1644, took the covenant, and courted the parliament. They showed, however, at first, a good deal of jealousy of him; and intimated that his affairs would prosper better by his leaving the kingdom. Whitelock, 101; Rush. Abr. xv. 359. He did not take this hint, and obtained next year an allowance of £8000 per annum. _Id._ 145. Lady Ranelagh, in a letter to Hyde, March 1644, conjuring him by his regard for Lord Falkland's memory to use all his influence to procure a message from the king for a treaty, adds: "Methinks what I have informed my sister, and what she will inform you, of the posture of the prince elector's affairs are in here, should be a motive to hasten away this message." _Clar. State Papers_, ii. 167. Clarendon himself, in a letter to Nicholas, Dec. 12, 1646 (where he gives his opinion that the independents look more to a change of the king and his line than of the monarchy itself, and would restore the full prerogative of the Crown to one of their own choice), proceeds in these remarkable words: "And I pray God they have not such a nose of wax ready for their impression. This it is makes me tremble more than all their discourses of destroying monarchy; and that towards this end, they find assistance from those who from their hearts abhor their confusions." P. 308. These expressions seem more applicable by far to the elector than to Cromwell. But the former was not dangerous to the parliament, though it was deemed fit to treat him with respect. In March 1647, we find a committee of both houses appointed to receive some intelligence which the prince elector desired to communicate to the parliament of great importance to the protestant religion. Whitelock, 241. Nothing farther appears about this intelligence; which looks as if he was merely afraid of being forgotten. He left England in 1649, and died in 1680. [367] Baxter's _Life_, 50. He ascribes the increase of enthusiasm in the army to the loss of its presbyterian chaplains, who left it for their benefices, on the reduction of the king's party and the new-modelling of the troops. The officers then took on them to act as preachers. _Id._ 54; and Neal, 183. I conceive that the year 1645 is that to which we must refer the appearance of a republican party in considerable numbers, though not yet among the House of Commons. [368] These passed against the royalist members separately, and for the most part in the first months of the war. [369] "The best friends of the parliament were not without fears what the issue of the new elections might be; for though the people durst not choose such as were open enemies to them, yet probably they would such as were most likely to be for a peace on any terms, corruptly preferring the fruition of their estates and sensual enjoyments before the public interest," etc. Ludlow, i. 168. This is a fair confession how little the commonwealth party had the support of the nation. [370] C. Journals; Whitelock, 168. The borough of Southwark had just before petitioned for a new writ, its member being dead or disabled. [371] That the House of Commons, in December 1645, entertained no views of altering the fundamental constitution, appears from some of their resolutions as to conditions of peace: "That Fairfax should have an earldom, with £5000 a year; Cromwell and Waller baronies, with half that estate; Essex, Northumberland, and two more be made dukes; Manchester and Salisbury marquises, and other peers of their party be elevated to higher ranks; Haslerig, Stapylton, and Skippon to have pensions." _Parl. Hist._ 403; Whitelock, 182. These votes do not speak much for the magnanimity and disinterestedness of that assembly, though it may suit political romancers to declaim about it. [372] Commons' Journals, May 4 and 18, 1647. This minority were not, in general, republican; but were unwilling to increase the irritation of the army by so strong a vote. [373] Commons' Journals; Whitelock, 271; _Parl. Hist._ 781. They had just been exasperated by his evasion of their propositions. _Id._ 778. By the smallness of the numbers, and the names of the tellers, it seems as if the presbyterian party had been almost entirely absent; which may be also inferred from other parts of the Journals. See October 9, for a long list of absentees. Haslerig and Evelyn, both of the army faction, told the Ayes, Martin and Sir Peter Wentworth the Noes. The house had divided the day before on the question for going into a committee to take this matter into consideration, 84 to 34; Cromwell and Evelyn telling the majority, Wentworth and Rainsborough the minority. I suppose it is from some of these divisions that Baron Maseres has reckoned the republican party in the house not to exceed thirty. It was resolved on Nov. 6, 1647, that the King of England, for the time being, was bound in justice and by the duty of his office, to give his assent to all such laws as by the Lords and Commons in parliament shall be adjudged to be for the good of the kingdom, and by them tendered unto him for his assent. But the previous question was carried on the following addition: "And in case the laws, so offered unto him, shall not thereupon be assented unto by him, that nevertheless they are as valid to all intents and purposes as if his assent had been thereunto had and obtained, which they do insist upon as an undoubted right."--Com. Jour. [374] Ludlow says that Cromwell, "finding the king's friends grow strong in 1648, began to court the commonwealth's party. The latter told him he knew how to cajole and give them good words, when he had occasion to make use of them; whereat, breaking out into a rage, he said they were a proud sort of people, and only considerable in their own conceits."--P. 240. Does this look as if he had been reckoned one of them? [375] Clarendon says that there were many consultations among the officers about the best mode of disposing of the king; some were for deposing him, others for poison or assassination, which, he fancies, would have been put in practice, if they could have prevailed on Hammond. But this is not warranted by our better authorities. It is hard to say at what time the first bold man dared to talk of bringing the king to justice. But in a letter of Baillie to Alexander Henderson, May 19, 1646, he says, "If God have hardened him, so far as I can perceive, this people will strive to have him in their power, and make an example of him; _I abhor to think what they speak of execution_!"--ii. 20. Published also in Dalrymple's _Memorials of Charles I._, p. 166. Proofs may also be brought from pamphlets by Lilburne and others in 1647, especially towards the end of that year; and the remonstrance of the Scots parliament, dated Aug. 13, alludes to such language. Rushw. Abr. vi. 245. Berkley indeed positively assures us, that the resolution was taken at Windsor in a council of officers, soon after the king's confinement at Carisbrook; and this with so much particularity of circumstance that, if we reject his account, we must set aside the whole of his memoirs at the same time. Maseres's _Tracts_, i. 383. But it is fully confirmed by an independent testimony, William Allen, himself one of the council of officers and adjutant-general of the army, who, in a letter addressed to Fleetwood, and published in 1659, declares that after much consultation and prayer at Windsor Castle, in the beginning of 1648, they had "come to a very clear and joint resolution that it was their duty to call Charles Stuart, that man of blood, to an account for the blood he had shed, and mischief he had done to his utmost, against the Lord's cause and people in these poor nations." This is to be found in _Somers Tracts_, vi. 499. The only discrepancy, if it is one, between him and Berkley, is as to the precise time, which the other seems to place in the end of 1647. But this might be lapse of memory in either party; nor is it clear, on looking attentively at Berkley's narration, that he determines the time. Ashburnham says, "For some days before the king's remove from Hampton Court, there was scarcely a day in which several alarms were not brought him by and from several considerable persons, both well affected to him and likely to know much of what was then in agitation, of the resolution which a violent party in the army had to take away his life. And that such a design there was, there were strong insinuations to persuade." See also his _Narrative_, published in 1830. [376] _Somers Tracts_, v. 160, 162. [377] Sept. 11. _Parl. Hist._ 1077; May's "Breviate" in Maseres's _Tracts_, vol. i. p. 127; Whitelock, 335. [378] Nov. 17. _Parl. Hist._ 1077; Whitelock, p. 355. A motion, Nov. 30, that the house do now proceed on the remonstrance of the army, was lost by 125 to 58 (printed, 53 in _Parl. Hist._). Commons' Journals. So weak was still the republican party. It is indeed remarkable that this remonstrance itself is rather against the king, than absolutely against all monarchy; for one of the proposals contained in it is that kings should be chosen by the people, and have no negative voice. [379] The division was on the previous question, which was lost by 129 to 83. [380] No division took place on any of the votes respecting the king's trial. [381] Ludlow, i. 267. [382] Hutchinson, p. 303. [383] The king's manners were not good. He spoke and behaved to ladies with indelicacy in public. See Warburton's _Notes on Clarendon_, vii. 629, and a passage in Milton's _Defensio pro populo Anglicano_, quoted by Harris and Brodie. He once forgot himself so far as to cane Sir Henry Vane for coming into a room of the palace reserved for persons of higher rank. Carte's _Ormond_, i. 366, where other instances are mentioned by that friendly writer. He had in truth none who loved him, till his misfortunes softened his temper, and excited sympathy. An anecdote, strongly intimating the violence of Charles's temper, has been rejected by his advocates. It is said that Burnet, in searching the Hamilton papers, found that the king, on discovering the celebrated letter of the Scots covenanting lords to the King of France, was so incensed that he sent an order to Sir William Balfour, lieutenant-governor of the Tower, to cut off the head of his prisoner, Lord Loudon; but that the Marquis of Hamilton, to whom Balfour immediately communicated this, urged so strongly on the king that the city would be up in arms on this violence, that with reluctance he withdrew the warrant. This story is told by Oldmixon, _Hist. of the Stuarts_, p. 140. It was brought forward on Burnet's authority, and also on that of the Duke of Hamilton, killed in 1712, by Dr. Birch, no incompetent judge of historical evidence; it seems confirmed by an intimation given by Burnet himself in his _Memoirs of the Duke of Hamilton_, p. 161. It is also mentioned by Scott of Scotstarvet, a contemporary writer. Harris, p. 350, quotes other authorities, earlier than the anecdote told by Burnet; and upon the whole, I think the story deserving credit, and by no means so much to be slighted as the Oxford editor of Burnet has thought fit to do. [384] Clement Walker, _Hist. of Independency_, Part II. p. 55. [385] Clarendon, Collier, and the high church writers in general, are very proud of the superiority they fancy the king to have obtained in a long argumentation held at Newcastle with Henderson, a Scots minister, on church authority and government. This was conducted in writing, and the papers afterwards published. They may be read in the King's Works, and in Collier, p. 842. It is more than insinuated that Henderson died of mortification at his defeat. He certainly had not the excuse of the philosopher who said he had no shame in yielding to the master of fifty legions. But those who take the trouble to read these papers, will probably not think one party so much the stronger as to shorten the other's days. They show that Charles held those extravagant tenets about the authority of the church and of the fathers, which are irreconcilable with protestantism in any country where it is not established, and are likely to drive it out where it is so. [386] The note on this passage, which, on account of its length, was placed at the end of the volume in the two first editions, is withdrawn in this, as relating to a matter of literary controversy, little connected with the general objects of this work. It is needless to add, that the author entertains not the smallest doubt about the justness of the arguments he had employed.--_Note to the Third Edition._ [387] _Parl. Hist._ 349. The council of war more than once, in the year 1647, declared their intention of preserving the rights of the peerage. Whitelock, 288, and Sir William Waller's _Vindication_, 192. [388] Commons' Journal, 13th and 19th May 1646. [389] Lords' Journals. [390] Commons' Journals. It had been proposed to continue the House of Lords as a court of judicature, or as a court of consultation, or in some way or other to keep it up. The majority, it will be observed, was not very great; so far was the democratic scheme from being universal even within the house. Whitelock, 377. Two divisions had already taken place; one on Jan. 9, when it was carried by thirty-one to eighteen, that "a message from the Lords should be received;" Cromwell strongly supporting the motion, and being a teller for it; and again on Jan. 18, when, the opposite party prevailing, it was negatived by twenty-five to eighteen, to ask their assent to the vote of the 4th instant, that the sovereignty resides in the Commons; which doubtless, if true, could not require the Lords' concurrence. [391] Whitelock, 396. They voted that Pembroke, as well as Salisbury and Howard of Escrick, who followed the ignominious example, should be added to all committees. [392] Commons' Journals; Whitelock. It had been referred to a committee of five members, Lisle, Holland, Robinson, Scott, and Ludlow, to recommend thirty-five for a council of state; to whose nominations the house agreed, and added their own. Ludlow, i. 288. They were appointed for a year; but in 1650 the house only left out two of the former list, besides those who were dead. Whitelock, 441. In 1651 the change was more considerable. _Id._ 488. [393] Six judges agreed to hold on their commissions, six refused. Whitelock, who makes a poor figure at this time on his own showing, consented to act still as commissioner of the great seal. Those who remained in office affected to stipulate that the fundamental laws should not be abolished; and the house passed a vote to this effect. Whitelock, 378. [394] Whitelock, 444 _et alibi_. Baxter's _Life_, 64. A committee was appointed, April 1649, to enquire about ministers who asperse the proceedings of parliament in their pulpits. Whitelock, 395. [395] _State Trials_, v. 43. Baxter says that Love's death hurt the new commonwealth more than would be easily believed, and made it odious to all the religious party in the land, except the sectaries. _Life of B._, 67. But "oderint dum metuant" is the device of those who rule in revolutions. Clarendon speaks, on the contrary, of Love's execution triumphantly. He had been distinguished by a violent sermon during the treaty of Uxbridge, for which the parliament, on the complaint of the king's commissioners, put him in confinement. Thurloe, i. 65; _State Trials_, 201; though the noble historian, as usual, represents this otherwise. He also misstates Love's dying speech. [396] Whitelock, 516. [397] The parliament had resolved, 24th July 1650, that Henry Stuart, son of the late king, and the Lady Elizabeth, daughter of the late king, be removed forthwith beyond the seas, out of the limits of this commonwealth. Yet this intention seems to have been soon changed; for it is resolved, Sept. 11, to give the Duke of Glocester £1500 per annum for his maintenance, so long as he should behave himself inoffensively. Whether this proceeded from liberality, or from a vague idea that they might one day make use of him, is hard to say. Clarendon mentions the scheme of making the Duke of Glocester king, in one of his letters (iii. 38, 11th Nov. 1651); but says, "Truly I do believe that Cromwell might as easily procure himself to be chosen king as the Duke of Glocester; for, as none of the king's party would assist the last, so I am persuaded both presbyterians and independents would have much sooner the former than any of the race of him whom they have murthered." [398] _Id._ p. 548. Lord Orrery told Burnet that he had once mentioned to Cromwell a report that he was to bring in the king, who should marry his daughter, and observed, that he saw no better expedient. Cromwell, without expressing any displeasure, said, "the king cannot forgive his father's blood;" which the other attempted to answer. Burnet, i. 95. It is certain, however, that such a compromise would have been dishonourable for one party, and infamous for the other. [399] Cromwell, in his letter to the parliament, after the battle of Worcester, called it a _crowning mercy_. This, though a very intelligible expression, was taken in an invidious sense by the republicans. [400] Journals, _passim_. [401] One of their most scandalous acts was the sale of the Earl of Craven's estate. He had been out of England during the war, and could not therefore be reckoned a delinquent. But evidence was offered that he had seen the king in Holland; and upon this charge, though he petitioned to be heard, and, as is said, indicted the informer for perjury, whereof he was convicted, they voted by 33 to 31 that his lands should be sold; Haslerig, the most savage zealot of the whole faction, being a teller for the ayes, Vane for the noes. Journals, 6th March 1651, and 22nd June 1652. _State Trials_, v. 323. On the 20th of July in the same year, it was referred to a committee to select thirty delinquents, whose estates should be sold for the use of the navy. Thus, long after the cessation of hostility, the royalists continued to stand in jeopardy, not only collectively but personally, from this arbitrary and vindictive faction. Nor were these qualities displayed against the royalists alone: one Josiah Primatt, who seems to have been connected with Lilburne, Wildman, and the levellers, having presented a petition complaining that Sir Arthur Haslerig had violently dispossessed him of some collieries, the house, after voting every part of the petition to be false, adjudged him to pay a fine of £3000 to the commonwealth, £2000 to Haslerig, and £2000 more to the commissioners for compositions. Journals, 15th Jan. 1651-2. There had been a project of erecting an university at Durham, in favour of which a committee reported (18th June 1651), and for which the chapter lands would have made a competent endowment. Haslerig, however, got most of them into his own hands; and thus frustrated, perhaps, a design of great importance to education and literature in this country. For had an university once been established, it is just possible, though not very likely, that the estates would not have reverted, on the king's restoration, to their former, but much less useful possessors. [402] Mrs. Hutchinson speaks very favourably of the levellers, as they appeared about 1647, declaring against the factions of the presbyterians and independents, and the ambitious views of their leaders, and especially against the unreasonable privileges claimed by the houses of parliament collectively and personally. "Indeed, as all virtues are mediums and have their extremes, there rose up after in that house a people who endeavoured the levelling of all estates and qualities, which those sober levellers were never guilty of desiring; but were men of just and sober principles, of honest and religious ends, and were therefore hated by all the designing self-interested men of both factions. Colonel Hutchinson had a great intimacy with many of these; and so far as they acted according to the just, pious, and public spirit which they professed, owned them and protected them as far as he had power. These were they who first began to discover the ambition of Lieut.-Gen. Cromwell and his idolaters, and to suspect and dislike it."--P. 285. [403] Whitelock, 399, 401. The levellers rose in arms at Banbury and other places; but were soon put down, chiefly through the energy of Cromwell, and their ringleaders shot. [404] It was referred to a committee, 29th April 1652, to consider how a convenient and competent maintenance for a godly and able ministry may be settled, in lieu of tithes. A proposed addition, that tithes be paid as before till such maintenance be settled, was carried by 27 to 17. [405] Journals, 19th Jan. 1652. Hale was the first named on this commission, and took an active part; but he was associated with some furious levellers, Desborough, Tomlinson, and Hugh Peters, so that it is hard to know how far he concurred in the alterations suggested. Many of them, however, seem to bear marks of his hand. Whitelock, 475, 517, 519, 820, _et alibi_. There had been previously a committee for the same purpose in 1650. See a list of the acts prepared by them in _Somers Tracts_, vi. 177; several of them are worthy of attention. Ludlow indeed blames the commission for slowness; but their delay seems to have been very justifiable, and their suggestions highly valuable. It even appears that they drew up a book containing a regular digest or code, which was ordered to be printed. Journals, 20th Jan. 1653. [406] A committee was named, 15th May 1649, to take into consideration the settling of the succession of future parliaments and regulating their elections. Nothing more appears to have been done till Oct. 11th, when the committee was ordered to meet next day, and so _de die in diem_, and to give an account thereof to the house on Tuesday come fortnight; all that came to have voices, but the special care thereof commended to Sir Henry Vane, Colonel Ludlow, and Mr. Robinson. We find nothing farther till Jan. 3rd, 1650, when the committee is ordered to make its report the next Wednesday. This is done accordingly, Jan. 9, when Sir H. Vane reports the resolutions of the committee, one of which was, that the number in future parliaments should be 400. This was carried, after negativing the previous question in a committee of the whole house. They proceeded several days afterwards on the same business. See also Ludlow, pp. 313, 435. [407] Two divisions had taken place, Nov. 14 (the first on the previous question), on a motion, that it is convenient to declare a certain time for the continuance of this parliament, 50 to 46, and 49 to 47. On the last division, Cromwell and St. John were tellers for the ayes. [408] Whitelock was one of these; and being at that time out of Cromwell's favour, inveighs much against this destruction of the power from which he had taken his commission. Pp. 552, 554. St. John appears to have concurred in the measure. In fact, there had so long been an end of law that one usurpation might seem as rightful as another. But, while any House of Commons remained, there was a stock left from which the ancient constitution might possibly germinate. Mrs. Macauley, whose lamentations over the Rump did not certainly proceed from this cause, thus vents her wrath on the English nation: "An acquiescence thus universal in the insult committed on the guardians of the infant republic, and the first step towards the usurpation of Cromwell, fixes an indelible stain on the character of the English, as a people basely and incorrigibly attached to the sovereignty of individuals, and of natures too ignoble to endure an empire of equal laws."--Vol. v. p. 112. [409] Harrison, when Ludlow asked him why he had joined Cromwell to turn out the parliament, said, he thought Cromwell would own and favour a set of men who acted on higher principles than those of civil liberty; and quoted from Daniel "that the saints shall take the kingdom and possess it." Ludlow argued against him; but what was argument to such a head? _Mem. of Ludlow_, p. 565. Not many months after, Cromwell sent his coadjutor to Carisbrook Castle. [410] Hume speaks of this assembly as chiefly composed of the lowest mechanics. But this was not the case. Some persons of inferior rank there were, but a large proportion of the members were men of good family, or, at least, military distinction, as the list of the names in the _Parliamentary History_ is sufficient to prove; and Whitelock remarks, "it was much wondered at by some that these gentlemen, many of them being persons of fortune and knowledge, would at this summons, and from those hands, take upon them the supreme authority of this nation."--P. 559. With respect to this, it may be observed, that those who have lived in revolutions find it almost necessary, whether their own interest or those of their country are their aim, to comply with all changes, and take a greater part in supporting them, than men of inflexible consciences can approve. No one felt this more than Whitelock; and his remark in this place is a satire upon all his conduct. He was at the moment dissatisfied, and out of Cromwell's favour, but lost no time in regaining it. [411] Journals, August 19. This was carried by 46 to 38 against Cromwell's party. Yet Cromwell, two years afterwards, published an ordinance for regulating and limiting the jurisdiction of chancery; which offended Whitelock so much that he resigned the great seal, not having been consulted in framing the regulations. This is a rare instance in his life; and he vaunts much of his conscience accordingly, but thankfully accepted the office of commissioner of the treasury instead. Pp. 621, 625. He does not seem, by his own account, to have given much satisfaction to suitors in equity (p. 548); yet the fault may have been theirs, or the system's. [412] 4th October. [413] This had been proposed by the commission for amendment of the law appointed in the long parliament. The great number of dissenters from the established religion rendered it a very reasonable measure. [414] Thurloe, i. 369; iii. 132. [415] Journals, 2nd and 10th Dec. 1653; Whitelock. See the sixth volume of the _Somers Tracts_, p. 266, for a long and rather able vindication of this parliament by one of its members. Ludlow also speaks pretty well of it (p. 471); and says, truly enough, that Cromwell frightened the lawyers and clergy, by showing what the parliament meant to do with them, which made them in a hurry to have it destroyed. See also _Parl. Hist._ 1412, 1414. [416] See the instrument of government in Whitelock, p. 571; or _Somers Tracts_, vi. 257. Ludlow says, that some of the officers opposed this; but Lambert forced it down their throats. P. 276. Cromwell made good use of this temporary power. The union of Scotland with England was by one of these ordinances, April 12 (Whitelock, 586); and he imposed an assessment of £120,000 monthly, for three months, and £90,000 for the next three, instead of £70,000, which had been paid before (_Id._ 591), besides many other ordinances of a legislative nature. "I am very glad," says Fleetwood (Feb. 1655, Thurloe, iii. 183), "to hear his highness has declined the legislative power, which by the instrument of government, in my opinion, he could not exercise after this last parliament's meeting." And the parliament of 1656, at the Protector's desire, confirmed all ordinances made since the dissolution of the long parliament. Thurloe, vi. 243. [417] I infer this from the report of a committee of privileges on the election for Lynn, Oct. 20, 1656. See also Journals, Nov. 26, 1654. [418] It is remarkable that Clarendon seems to approve this model of a parliament, saying, "it was then generally looked upon as an alteration fit to be more warrantably made, and in a better time." [419] Bordeaux, the French ambassador, says, "some were for Bradshaw as speaker, but the Protector's party carried it for Lenthall. By this beginning one may judge what the authority of the lord protector will be in this parliament. However it was observed that as often as he spoke in his speech of liberty or religion, the members did seem to rejoice with acclamations of joy." Thurloe, v. 588. But the election of Lenthall appears by Guibbon Goddard's Journal, lately published in the Introduction to Burton's _Diary_, to have been unanimous. [420] Journals, 14th and 18th Sept.; _Parl. Hist._ 1445, 1459; Whitelock, 605, etc.; Ludlow, 499; Goddard's Journal, 32. [421] This division is not recorded in the Journals, in consequence, I suppose, of its having been resolved in a committee of the whole house. But it is impossible to doubt the fact, which is referred to Oct. 19 by a letter of Bourdeaux, the French ambassador (Thurloe, ii. 681), who observes, "Hereby it is easily discerned that the nation is nowise affected to his family, nor much to himself. Without doubt he will strengthen his army, and keep that in a good posture." It is also alluded to by Whitelock, 609. They resolved to keep the militia in the power of the parliament, and that the Protector's negative should extend only to such bills as might alter the instrument; and in other cases, if he did not pass bills within twenty days, they were to become laws without his consent. Journals, Nov. 10, 1654; Whitelock, 608. This was carried against the court by 109 to 85. Ludlow insinuates that this parliament did not sit out its legal term of five months; Cromwell having interpreted the months to be lunar instead of calendar. Hume has adopted this notion; but it is groundless, the month in law being always of twenty-eight days, unless the contrary be expressed. This seems, however, not to have been generally understood at the time; for Whitelock says that Cromwell's dissolution of the parliament, because he found them not so pliable to his purposes as he expected, caused much discontent in them and others; but that he valued it not, esteeming himself above those things. P. 618. He gave out that the parliament were concerned in the conspiracy to bring in the king. [422] Exiles are seldom scrupulous: we find that Charles was willing to propose to the States, in return for their acknowledging his title, "such present and lasting advantages to them by this alliance as may appear most considerable to that nation and to their posterity, and a valuable compensation for whatever present advantages the king can receive by it." _Clarendon State Papers_, iii. 90. These intrigues would have justly made him odious in England. [423] Ormond wrote strongly to this effect, after the battle of Worcester, convinced that nothing but foreign assistance could restore the king. "Amongst protestants there is none that hath the power, and amongst the catholics it is visible." Carte's _Letters_, i. 461. [424] _Clarendon State Papers_, ii. 481 _et sæpe alibi_. The protestant zeal of Hyde had surely deserted him; and his veracity in one letter gave way also. See vol. iii. p. 158. But the great criminality of all these negotiations lay in this, that Charles was by them soliciting such a measure of foreign aid as would make him at once the tyrant of England and the vassal of Spain; since no free parliament, however royalist, was likely to repeal all the laws against popery. "That which the king will be ready and willing to do, is to give his consent for the repeal of all the penal laws and statutes which have been made in the prejudice of catholics, and to put them into the same condition as his other subjects." Cottington to Father Bapthorpe. _Id._ 541. These negotiations with Rome were soon known; and a tract was published by the parliament's authority, containing the documents. Notwithstanding the delirium of the restoration, this had made an impression which was not afterwards effaced. [425] _Clarendon State Papers_, iii. 181. [426] "The pope very well knows," says Hyde to Clement, an agent at the court of Rome, 2nd April 1656, "how far the king is from thoughts of severity against his catholic subjects; nay, that he doth desire to put them into the same condition with his other subjects, and that no man shall suffer in any consideration for being a Roman catholic." _Id._ 291. [427] Clarendon's _History of the Rebellion_, b. 14; _State Papers_, iii. 265, 300, etc. Whitelock observes at this time, "Many sober and faithful patriots did begin to incline to the king's restoration;" and hints, that this was his opinion, which excited Cromwell's jealousy of him. P. 620. [428] Clarendon's _History_, vii. 129; _State Papers_, iii. 265, etc. These levellers were very hostile to the interference of Hyde and Ormond, judging them too inflexibly attached to the ancient constitution; but this hostility recommended them to others of the banished king's court who showed the same sentiments. [429] Pp. 315, 324, 343; Thurloe, i. 360, 510. In the same volume (p. 248) we find even a declaration from the king, dated at Paris, 3rd May 1654, offering £500 per annum to any one who should kill Cromwell, and pardon to any one who should leave that party, except Bradshaw, Lenthall, and Haslerig. But this seems unlikely to be authentic: Charles would not have avowed a design of assassination so openly; and it is strange that Lenthall and Haslerig, especially the former, should be thus exempted from pardon, rather than so many regicides. [430] See what Clarendon says of Ascham's death. _State Papers_, ii. 542. In another place he observes: "It is a worse and a baser thing that any man should appear in any part beyond sea under the character of an agent from the rebels, and not have his throat cut." _Id._ iii. 144. [431] _State Trials_, 518; Thurloe, ii. 416. Some of the malecontent commonwealth men were also eager to get rid of Cromwell by assassination; Wildman, Saxby, Titus. Syndercome's story is well known; he was connected in the conspiracy with those already mentioned. The famous pamphlet by Titus, "Killing no Murder," was printed in 1657. _Clarendon State Papers_, 315, 324, 343. [432] A very reprehensible passage occurs in Clarendon's account of this transaction (vol. vii. p. 140), where he blames and derides the insurgents for not putting Chief Justice Rolle and others to death, which would have been a detestable and useless murder. [433] Whitelock, 618, 620; Ludlow, 513; Thurloe, iii. 264, and through more than half the volume, _passim_. In the preceding volume we have abundant proofs how completely master Cromwell was of the royalist schemes. The "sealed knot" of the king's friends in London is mentioned as frequently as we find it in the _Clarendon Papers_ at the same time. [434] Thurloe, iii. 371, etc. "Penruddock and Grove," Ludlow says, "could not have been justly condemned, if they had as sure a foundation in what they declared for, as what they declared against. But certainly it can never be esteemed by a wise man to be worth the scratch of a finger to remove a single person acting by an arbitrary power, in order to set up another with the same unlimited authority."--P. 518. This is a just and manly sentiment. Woe to those who do not recognise it! But is it fair to say that the royalists were contending to set up an unlimited authority? [435] They were originally ten, Lambert, Desborough, Whalley, Goffe, Fleetwood, Skippon, Kelsey, Butler, Worseley, and Berry. Thurloe, iii. 701. Barkstead was afterwards added. "The major-generals," says Ludlow, "carried things with unheard-of insolence in their several precincts, decimating to extremity whom they pleased, and interrupting the proceedings at law upon petitions of those who pretended themselves aggrieved; threatening such as would not yield a ready submission to their orders with transportation to Jamaica, or some other plantations in the West Indies," etc.--P. 559. [436] Thurloe, vol. iv. _passim_. The unpopularity of Cromwell's government appears strongly in the letters of this collection. Duckinfield, a Cheshire gentleman, writes: "Charles Stuart hath 500 friends in these adjacent counties for every one friend to you amongst them." Vol. iii. 294. [437] It may be fair towards Cromwell to give his own apology for the decimation of the royalists, in a declaration, published 1655. "It is a trouble to us to be still rubbing upon the old sore, disobliging those whom we hoped time and patience might make friends; but we can with comfort appeal to God, and dare also to their own consciences, whether this way of proceeding with them hath been the matter of our choice, or that which we have sought an occasion for; or whether, contrary to our own inclinations and the constant course of our carriage towards them, which hath been to oblige them by kindness to forsake their former principles, which God hath so often and so eminently bore witness against, we have not been constrained and necessitated hereunto, and without the doing whereof we should have been wanting to our duty to God and these nations. "That character of difference between them and the rest of the people which is now put upon them is occasioned by themselves, not by us. There is nothing they have more industriously laboured in than this; to keep themselves distinguished from the well-affected of this nation: To which end they have kept their conversation apart; as if they would avoid the very beginnings of union, have bred and educated their children by the sequestered and ejected clergy, and very much confined their marriages and alliances within their own party, as if they meant to entail their quarrel, and prevent the means to reconcile posterity; which with the great pains they take upon all occasions to lessen and suppress the esteem and honour of the English nation in all their actions and undertakings abroad, striving withal to make other nations distinguish their interest from it, gives us ground to judge that they have separated themselves from the body of the nation; and therefore we leave it to all mankind to judge whether we ought not to be timely jealous of that separation, and to proceed so against them as they may be at the charge of those remedies which are required against the dangers they have bred." [438] Ludlow, 528; Clarendon, etc. Clarendon relates the same story, with additional circumstances of Cromwell's audacious contempt for the courts of justice, and for the very name of magna charta. [439] _State Trials_, vi.; Whitelock advised the protector to proceed according to law against Hewit and Slingsby; "but his highness was too much in love with the new way."--P. 673. [440] The late editor of the _State Trials_, v. 935, has introduced a sort of episodical dissertation on the administration of justice during the commonwealth, with the view, as far as appears, of setting Cromwell in a favourable light. For this purpose he quotes several passages of vague commendation from different authors, and among others one from Burke, written in haste, to serve an immediate purpose, and evidently from a very superficial recollection of our history. It has been said that Cromwell sought out men of character from the party most opposite to his designs. The proof given is the appointment of Hale to be a puisné judge. But Hale had not been a royalist, that is, an adherent of Charles, and had taken the engagement as well as the covenant. It was no great effort of virtue to place an eminent lawyer and worthy man on the bench. And it is to be remembered that Hale fell under the usurper's displeasure for administering justice with an impartiality that did not suit his government; and ceased to go the circuit, because the criminal law was not allowed to have its course. [441] Thurloe writes to Montague (Carte's _Letters_, ii. 110) that he cannot give him the reasons for calling this parliament, except in cipher. He says in the same place of the committal of Ludlow, Vane, and others, "There was a necessity not only for peace sake to do this, but to let the nation see those that govern are in good earnest, and intend not to quit the government wholly into the hands of the parliament, as some would needs make the world believe."--P. 112. His first direct allusion to the projected change is in writing to Henry Cromwell, 9th Dec. 1656. _Thurl. Papers_, v. 194. The influence exerted by his legates, the major-generals, appears in Thurloe, v. 299 _et post_. But they complained of the elections. _Id._ 302, 341, 371. [442] Whitelock, 650; _Parl. Hist._ 1486. On a letter to the speaker from the members who had been refused admittance at the door of the lobby, Sept. 18, the house ordered the clerk of the commonwealth to attend next day with all the indentures. The deputy clerk came accordingly, with an excuse for his principal, and brought the indentures; but on being asked why the names of certain members were not returned to the house, answered that he had no certificate of approbation for them. The house on this sent to inquire of the council why these members had not been approved. They returned for answer, that whereas it is ordained by a clause in the instrument of government that the persons who shall be elected to serve in parliament shall be such and no other than such as are persons of known integrity, fearing God, and of good conversation; that the council, in pursuance of their duty, and according to the trust reposed in them, have examined the said returns, and have not refused to approve any who have appeared to them to be persons of integrity, fearing God, and of good conversation; and those who are not approved, his highness hath given order to some persons to take care that they do not come into the house. Upon this answer, an adjournment was proposed, but lost by 115 to 80: and it being moved that the persons, who have been returned from the several counties, cities, and boroughs to serve in this parliament, and have not been approved, be referred to the council for approbation, and that the house do proceed with the great affairs of the nation; the question was carried by 125 to 29. Journals, Sept. 22. [443] _Clar. State Papers_, iii. 201, etc. [444] The whole conference that took place at Whitehall, between Cromwell and the committee of parliament on this subject, was published by authority, and may be read in the _Somers Tracts_, vi. 349. It is very interesting. The lawyers did not hesitate to support the proposition, on the ground of the more definite and legal character of a king's authority. "The king's prerogative," says Glyn, "is known by law; he (King Charles) did expatiate beyond the duty; that's the evil of the man: but in Westminster Hall the king's prerogative was under the courts of justice, and is bounded as well as any acre of land, or anything a man hath, as much as any controversy between party and party: and therefore the office being lawful in its nature, known to the nation, certain in itself, and confined and regulated by the law, and the other office not being so, that was a great ground of the reason why the parliament did so much insist upon this office and title, not as circumstantial, but as essential."--P. 359. See also what Lenthall says (p. 356) against the indefiniteness of the protector's authority. Those passages were evidently implied censures of the late course of government. Cromwell's indistinct and evasive style in his share of this debate betrays the secret inclinations of his heart. He kept his ultimate intentions, however, very secret; for Thurloe's professes his ignorance of them, even in writing to Henry Cromwell. Vol. vi. p. 219 _et post_. This correspondence shows that the prudent secretary was uneasy at the posture of affairs, and the manifest dissatisfaction of Fleetwood and Desborough, which had a dangerous influence on others less bound to the present family; yet he had set his heart on this mode of settlement, and was much disappointed at his master's ultimate refusal. [445] Clarendon's _Hist._ vii. 194. It appears by Clarendon's private letters that he had expected to see Cromwell assume the title of king from the year 1654. Vol. iii. pp. 201, 223, 224. If we may trust what is here called an intercepted letter (p. 328), Mazarin had told Cromwell that France would enter into a strict league with him, if he could settle himself in the throne, and make it hereditary; to which he answered, that he designed shortly to take the crown, restore the two houses, and govern by the ancient laws. But this may be apocryphal. [446] Clar. vii. 203. [447] Ludlow, p. 581. The major-generals, or at least many of them, joined the opposition to Cromwell's royalty. _Id._ p. 586; _Clar. State Papers_, 332. [448] This appears from the following passage in a curious letter of Mr. Vincent Gookin to Henry Cromwell, 27th Jan. 1657. "To-morrow the bill for decimating the cavaliers comes again into debate. It is debated with much heat by the major-generals, and as hotly almost by the anti-decimators. I believe the bill will be thrown out of the house. In my opinion those that speak against the bill have much to say in point of moral justice and prudence; but that which makes me fear the passing of the bill is, that thereby his highness's government will be more founded in force, and more removed from that natural foundation which the people in parliament are desirous to give him; supposing that he will become more theirs than now he is, and will in time find the safety and peace of the nation to be as well maintained by the laws of the land as by the sword. And truly, sir, if any others have pretensions to succeed him by their interest in the army, the more of force upholds his highness living, the greater when he is dead will be the hopes and advantages for such a one to effect his aim, who desires to succeed him. Lambert is much for decimations." Thurloe, vi. 20. He writes again, "I am confident it is judged by some that the interest of the godly cannot be preserved but by the dissolution of this, if not all, parliaments; and their endeavours in it have been plainly discovered to the party most concerned to know them; which will, I believe, suddenly occasion a reducing of the government to kingship, to which his highness is not averse. Pierpoint and St. John have been often, but secretly, at Whitehall, I know, to advise thereof."--P. 37. Thurloe again to the same Henry Cromwell, on February 3, that the decimation bill was thrown out by a majority of forty: "Some gentlemen do think themselves much trampled upon by this vote, and are extremely sensible thereof; and the truth is, it hath wrought such a heat in the house, that I fear little will be done for the future." _Id._ p. 38. No such bill appears, _eo nomine_, in the journals. But a bill for regulating the militia forces was thrown out, Jan. 29, by 124 to 88, Col. Cromwell (Oliver's cousin) being a teller for the majority. Probably there was some clause in this renewing the decimation of the royalists. [449] Whitelock, who was consulted by Cromwell on this business, and took an active part as one of the committee of conference appointed by the House of Commons, intimates that the project was not really laid aside. "He was satisfied in his private judgment that it was fit for him to take upon him the title of king, and matters were prepared in order thereunto; but afterwards, by solicitation of the commonwealth's men, and fearing a mutiny and defection of a great part of the army, in case he should assume that title and office, his mind changed, and many of the officers of the army gave out great threatenings against him in case he should do it; he therefore thought it best to attend some better season and opportunity in this business, and refused it at this time with great seeming earnestness."--P. 656. The chief advisers with Cromwell on this occasion, besides Whitelock, were Lord Broghill, Pierrepont, Thurloe, and Sir Charles Wolseley. Many passages in Thurloe (vol. vii.) show that Cromwell preserved to the last his views on royalty. [450] Whitelock, 657. It had been agreed, in discussing the petition and advice in parliament, to postpone the first article requesting the protector to assume the title of king, till the rest of the _charter_ (to use a modern but not inapplicable word) had been gone through. One of the subsequent articles, fixing the revenue at £1,300,000 per annum, provides that no part thereof should be raised by a land-tax, "and this not to be altered without the consent of the _three estates in parliament_." A division took place, in consequence, no doubt, of this insidious expression, which was preserved by 97 to 50. Journals, 13th March. The first article was carried, after much debate on March 24, by 123 to 62. It stood thus: "Resolved, That your highness will be pleased to assume the name, style, dignity, and office of king of England, Scotland, and Ireland, and the respective dominions and territories thereunto belonging; and to exercise the same according to the laws of these nations." On Cromwell's first demurring to the proposal, it was resolved to adhere to the petition and advice by the small majority of 78 to 65. This was perhaps a sufficient warning that he should not proceed. [451] Journals, 21st June. This oath, which effectually declared the parliament to be the protector's subjects, was only carried by 63 to 55. Lambert refused it, and was dismissed the army in consequence, with a pension of £2000 per annum, instead of his pay, £10 a day. So well did they cater for themselves. Ludlow, 593. Broderick wrote to Hyde, June 30, 1657, that there was a general tranquillity in England, all parties seeming satisfied with the compromise; Fleetwood and Desborough more absolutely Cromwell's friends than before, and Lambert very silent. _Clar. State Papers_, 349. [452] Thurloe, vi. 310. [453] Compare Journals, 11th March with 24th June. [454] Whitelock, 665. They were to have a judicial power, much like that of the real House of Lords. Journals, March. [455] Whitelock; _Parl. Hist._ The former says this was done against his advice. These debates about the other house are to be traced in the Journals, and are mentioned by Thurloe, vi. 107, etc.; and Ludlow, 597. Not one of the true peers, except Lord Eure, took his seat in this house; and Haslerig, who had been nominated merely to weaken his influence, chose to retain his place in the Commons. The list of these pretended lords in Thurloe, vi. 668, is not quite the same as that in Whitelock. [456] This junto of nine debated how they might be secure against the cavaliers. One scheme was an oath of abjuration; but this it was thought they would all take: another was to lay a heavy tax on them: "a moiety of their estates was spoken of; but this, I suppose, will not down with all the nine, and least of all will it be swallowed by the parliament, who will not be persuaded to punish both nocent and innocent without distinction." 22nd June, Thurloe, vol. vii. p. 198. And again, p. 269: "I believe we are out of danger of our junto, and I think also of ever having such another. As I take it, the report was made to his highness upon Thursday. After much consideration, the major part voted that succession in the government was indifferent whether it were by election or hereditary; but afterwards some would needs add that it was desirable to have it continued elective; that is, that the chief magistrate should always name his successor; and that of hereditary avoided; and I fear the word 'desirable' will be made 'necessary,' if ever it come upon the trial. His highness finding he can have no advice from those he most expected it from, saith he will take his own resolutions, and that he can no longer satisfy himself to sit still, and make himself guilty of the loss of all the honest party and of the nation itself." [457] Harris, p. 348, has collected some curious instances of the servility of crowned heads to Cromwell. [458] See Clarendon, vii. 297. He saved Nismes from military execution on account of a riot, wherein the Huguenots seem to have been much to blame. In the treaty between England and France, 1654, the French, in agreeing to the secret article about the exclusion of the royalists, endeavoured to make it reciprocal, that the commissioners of rebels in France should not be admitted in England. This did not seem very outrageous--but Cromwell objected that the French protestants would be thus excluded from imploring the assistance of England, if they were persecuted; protesting, however, that he was very far from having any thought to draw them from their obedience, as had been imputed to him, and that he would arm against them, if they should offer frivolously and without a cause to disturb the peace of France. Thurloe, iii. 6. In fact, the French protestants were in the habit of writing to Thurloe, as this collection testifies, whenever they thought themselves injured, which happened frequently enough. Cromwell's noble zeal in behalf of the Vaudois is well known. See this volume of Thurloe, p. 412, etc. Mazarin and the catholic powers in general endeavoured to lye down that massacre; but the usurper had too much protestant spirit to believe them. _Id._ 536. [459] Ludlow, 607; Thurloe, i. and ii. _passim_. [460] Mrs. Macauley, who had nothing of compromise or conciliation in her temper, and breathed the entire spirit of Vane and Ludlow, makes some vigorous and just animadversions on the favour shown to Cromwell by some professors of a regard for liberty. The dissenting writers, such as Neal, and in some measure Harris, were particularly open to this reproach. He long continued (perhaps the present tense is more appropriate) to be revered by the independents. One who well knew the manners he paints, has described the secret idolatry of that sect to their hero-saint. See Crabbe's _Tale of the Frank Courtship_. Slingsly Bethell, an exception perhaps to the general politics of this sect, published in 1667 a tract, entitled "The World's Mistake in Oliver Cromwell," with the purpose of decrying his policy and depreciating his genius. Harleian Miscellany, i. 280. But he who goes about to prove the world mistaken in its estimate of a public character has always a difficult cause to maintain. Bethell, like Mrs. Macauley and others, labours to set up the Rump parliament against the soldier who kicked them; and asserts that Cromwell, having found £500,000 in ready money, with the value of £700,000 in stores, and the army in advance of their pay (subject, however, to a debt of near £500,000); the customs and excise bringing in nearly a million annually, left a debt which, in Richard's parliament, was given in at £1,900,000, though he believes this to have been purposely exaggerated in order to procure supplies. I cannot say how far these sums are correct; but it is to be kept in mind, that one great resource of the parliament, confiscation, sequestration, composition, could not be repeated for ever. Neither of these governments, it will be found on inquiry, were economical, especially in respect to the emoluments of those concerned in them. [461] Whitelock, 674; Ludlow, 611, 624. Lord Fauconberg writes in cipher to Henry Cromwell, on Aug. 30, that "Thurloe has seemed resolved to press him in his intervals to such a nomination (of a successor); but whether out of apprehensions to displease him if recovering, or others hereafter, if it should not succeed, he has not yet done it, nor do I believe will." Thurloe, however, announces on Sept. 4, that "his highness was pleased before his death to declare my Lord Richard successor. He did it on Monday; and the Lord hath so ordered it, that the council and army hath received him with all manner of affection. He is this day proclaimed, and hitherto there seems great face of peace; the Lord continue it." _Thurloe State Papers_, vii. 365, 372. Lord Fauconberg afterwards confirms the fact of Richard's nomination. P. 375; and see 415. [462] "Many sober men that called his father no better than a traitorous hypocrite, did begin to think that they owed him [R. C.] subjection," etc. Baxter, 100. [463] Hutchinson, 343. She does not name Pierrepont, but I have little doubt that he is meant. [464] Richard's conduct is more than once commended in the correspondence of Thurloe, pp. 491, 497; and in fact he did nothing amiss during his short administration. [465] Thurloe, vii. 320 _et post_, _passim_, in letters both from himself and Lord Fauconberg. Thus, immediately on Richard's accession, the former writes to Henry Cromwell, "It hath pleased God hitherto to give his highness your brother a very easy and peaceable entrance upon his government. There is not a dog that wags his tongue, so great a calm we are in.... But I must needs acquaint your excellency that there are some secret murmurings in the army, as if his highness were not general of the army as his father was," etc. P. 374. Here was the secret: the officers did not like to fall back under the civil power, by obeying one who was not a soldier. This soon displayed itself openly; and Lord Fauconberg thought the game was over as early as Sept. 28. P. 413. It is to be observed that Fauconberg was secretly a royalist, and might hope to bring over his brother-in-law. [466] _Id._ 573. [467] Lord Fauconberg says, "the commonwealth men in the parliament were very numerous, and beyond measure bold, but more than doubly overbalanced by the sober party; so that, though this make their results slow, we see no great cause as yet to fear."--P. 612. And Dr. Barwick, a correspondent of Lord Clarendon, tells him the republicans were the minority, but all speakers, zealous and diligent--it was likely to end in a titular protector without militia or negative voice. P. 615. According to a letter from Allen Broderick to Hyde (_Clar. St. Pap._ iii. 443) there were 47 republicans, from 100 to 140 neuters or moderates (including many royalists), and 170 court lawyers, or officers. [468] Ludlow tells us, that he contrived to sit in the house without taking the oath, and that some others did the same. P. 619. [469] Whitelock, _Parl. Hist._ 1530, 1541. [470] The numbers are differently, but, I suppose, erroneously stated in Thurloe, vii. 640. It is said, in a pamphlet of the time, that this clause was introduced to please the cavaliers, who acted with the court; _Somers Tracts_, vi. 482. Ludlow seems also to think that these parties were united in this parliament (p. 629); but this seems not very probable, and is contrary to some things we know. Clarendon had advised that the royalists should try to get into parliament, and there to oppose all raising of money, and everything else that might tend to settle the government. _Clar. State Papers_, 411. This of course was their true game. It is said that, Richard pressing the Earl of Northumberland to sit in the other house, he declined, urging that when the government was such as his predecessors had served under, he would serve him with his life and fortune. _Id._ 433. [471] _Parl. Hist._; Journals, 27 Jan., 14, 18 Feb., 1, 8, 21, 23, 28 March. The names of the tellers in these divisions show the connections of leading individuals: we find indifferently presbyterian and republican names for the minority, as Fairfax, Lambert, Nevil, Haslerig, Townshend, Booth. [472] There seems reason to believe that Richard would have met with more support both in the house and among the nation, if he had not been oppressed by the odium of some of his father's counsellors. A general indignation was felt at those who had condemned men to death in illegal tribunals, whom the republicans and cavaliers were impatient to bring to justice. He was forced also to employ and to screen from vengeance his wise and experienced secretary Thurloe, master of all the secret springs that had moved his father's government, but obnoxious from the share he had taken in illegal and arbitrary measures. Petitions were presented to the house from several who had been committed to the Tower upon short written orders, without any formal warrant, or expressed cause of commitment. In the case of one of these, Mr. Portman, the house resolved that his apprehension, imprisonment, and detention in the Tower was illegal and unjust. Journals, 26 Feb. A still more flagrant tyranny was that frequently practised by Cromwell of sending persons disaffected to him as slaves to the West Indies. One Mr. Thomas petitioned the House of Commons, complaining that he had been thus sold as a slave. A member of the court side justified it on the score of his being a malignant. Major-General Browne, a secret royalist, replied that he was nevertheless an Englishman and free-born. Thurloe had the presumption to say that he had not thought to live to see the day, when such a thing as this, so justly and legally done by lawful authority, should be brought before parliament. Vane replied that he did not think to have seen the day, when free-born Englishmen should be sold for slaves by such an arbitrary government. There were, it seems, not less than fifty gentlemen, sold for slaves at Barbadoes. _Clarendon State Papers_, p. 447. The royalists had planned to attack Thurloe for some of these unjustifiable proceedings, which would have greatly embarrassed the government. _Ibid_, 423, 428. They hoped that Richard would be better disposed towards the king, if his three advisers, St. John, Thurloe, and Pierrepont, all implacable to their cause, could be removed. But they were not strong enough in the house. If Richard, however, had continued in power, he must probably have sacrificed Thurloe to public opinion; and the consciousness of this may have led this minister to advise the dissolution of the parliament, and perhaps to betray his master, from the suspicion of which he is not free. It ought to be remarked what an outrageous proof of Cromwell's tyranny is exhibited in this note. Many writers glide favourably over his administration, or content themselves with treating it as an usurpation, which can furnish no precedent, and consequently does not merit particular notice; but the effect of this generality is, that the world forms an imperfect notion of the degree of arbitrary power which he exerted; and I believe there are many who take Charles the First, and even Charles the Second, for greater violators of the laws than the protector. Neal and Harris are full of this dishonest bigotry. Since this note was first printed, the publication of Burton's _Diary_ has confirmed its truth, which had rashly been called in question by a passionate and prejudiced reviewer. See Vol. iv. p. 253, etc. [473] Richard advised with Broghill, Fiennes, Thurloe, and others of his council, all of whom, except Whitelock, who informs us of this, were in favour of the dissolution. This caused, he says, much trouble to honest men; the cavaliers and republicans rejoiced at it; many of Richard's council were his enemies. P. 177. The army at first intended to raise money by their own authority; but this was deemed impossible, and it was resolved to recall the Long Parliament. Lambert and Haslerig accordingly met Lenthall, who was persuaded to act again as speaker; though, if Ludlow is right, against his will, being now connected with the court, and in the pretended House of Lords. The parliament now consisted of 91 members. _Parl. Hist._ 1547. Harris quotes a manuscript journal of Montagu, afterwards Earl of Sandwich, wherein it is said that Richard's great error was to dissolve the parliament, and that he might have over-ruled the army, if he would have employed himself, Ingoldsby, Lord Fauconberg, and others, who were suspected to be for the king. _Life of Charles II._ 194. He afterwards (p. 203) quotes Calamy's _Life of Howe_ for the assertion that Richard stood out against his council, with Thurloe alone, that the parliament should not be dissolved. This is very unlikely. [474] This was carried against the previous question by 163 to 87. Journals Abr. III. Some of the protector's friends were alarmed at so high a vote against the army, which did in fact bring the matter to a crisis. Thurloe, vii. 659 _et post_. [475] The army according to Ludlow, had not made up their minds how to act after the dissolution of the parliament, and some were inclined to go on with Richard; but the republican party, who had coalesced with that faction of officers who took their denomination from Wallingford House, their place of meeting, insisted on the restoration of the old parliament; though they agreed to make some provision for Richard. _Memoirs_, pp. 635-646. Accordingly it was voted to give him an income of £10,000 per annum. Journals, July 16. [476] Journals, Sept. 23 _et post_; Whitelock, 683; _Parl. Hist._ 1562; Thurloe, vii. 703 _et post_. Ludlow's account of this period is the most interesting part of his _Memoirs_. The chief officers, it appears from his narrative, were soon disgusted with their republican allies, and "behaved with all imaginable perverseness and insolence" in the council of state, whenever they came there, which was but seldom, scrupling the oath to be true to the commonwealth against Charles Stuart or any other person. P. 657. He censures, however, the violence of Haslerig, "a man of a disobliging temper, sour and morose of temper, liable to be transported with passion, and in whom liberality seemed to be a vice. Yet to do him justice, I must acknowledge that I am under no manner of doubt concerning the rectitude and sincerity of his intentions."--P. 718. Ludlow gave some offence to the hot-headed republicans by his half compliance with the army; and much disapproved the proceedings they adopted after their second restoration in December 1659, against Vane and others. P. 800. Yet, though nominated on the committee of safety, on the expulsion of the parliament in October, he never sat on it, as Vane and Whitelock did. [477] Journals, and other authorities above cited. [478] The Rota Club, as it was called, was composed, chiefly at least, of these dealers in new constitutions, which were debated in due form. Harrington was one of the most conspicuous. [479] Thurloe, vi. 579; _Clarendon State Papers_, 391, 395. [480] Carte's _Letters_, ii. 118. In a letter of Ormond to Hyde about this time, he seems to have seen into the king's character, and speaks of him severely: "I fear his immoderate delight in empty, effeminate, and vulgar conversations, is become an irresistible part of his nature," etc. _Clarendon State Papers_, iii. 387. [481] _Clarendon Papers_, 391, 418, 460 _et post_. Townshend, a young man who seems to have been much looked up to, was not, in fact, a presbyterian, but is reckoned among them as not being a cavalier, having come of age since the wars, and his family neutral. [482] This curious fact appears for the first time, I believe, in the _Clarendon State Papers_, unless it is anywhere intimated in Carte's collection of the Ormond letters. In the former collection we find several allusions to it; the first is in a letter from Rumbold, a royalist emissary, to Hyde, dated Dec. 2, 1658, p. 421; from which I collect Lord Fauconberg's share in this intrigue; which is also confirmed by a letter of Mordaunt to the king, in p. 423. "The Lord Falconbridge protests that Cromwell is so remiss a person that he cannot play his own game, much less another man's, and is thereby discouraged from acting in business, having also many enemies who oppose his gaining either power or interest in the army or civil government, because they conceive his principles contrary to theirs. He says, Thurloe governs Cromwell, and St. John and Pierrepont govern Thurloe; and therefore is not likely he will think himself in danger till these tell him so, nor seek a diversion of it but by their councils." Feb. 10, 1659. These ill-grounded hopes of Richard's accession to their cause appear in several other letters, and even Hyde seems to have given in to them. 434, 454, etc. Broderick, another active emissary of the royalists, fancied that the three above-mentioned would restore the king if they dared (477); but this is quite unlikely. [483] P. 469. This was carried on through Colonel Henry Cromwell, his cousin. It is said that Richard had not courage to sign the letters to Monk and his other friends, which he afterwards repented. 491. The intrigues still went on with him for a little longer. This was in May 1659. [484] _Clarendon State Papers_, 434, 500 _et post_; Thurloe, vi. 686. See also an enigmatical letter to Henry Cromwell, 629, which certainly hints at his union with the king; and Carte's _Letters_, ii. 293. [485] _Clarendon State Papers_, 552, 556, etc. [486] Clarendon confesses (_Life_, p. 20) that the cavaliers disliked this whole intrigue with the presbyterians, which was planned by Mordaunt, the most active and intelligent agent that the king possessed in England. The former, doubtless, perceived that by extending the basis of the coalition, they should lose all chance of indemnity for their own sufferings: besides which, their timidity and irresolution are manifest in all the Clarendon correspondence at this period. See particularly 491, 520. [487] Willis had done all in his power to obstruct the rising. Clarendon was very slow in believing this treachery, of which he had at length conclusive proofs. 552, 562. [488] _Id._ 514, 530, 536, 543. [489] _Clarendon Papers_, 425, 427, 458, 462, 475, 526, 579. It is evident that the catholics had greater hopes from the duke than from the king, and considered the former as already their own. A remarkable letter of Morley to Hyde, April 24, 1659, p. 458, shows the suspicions already entertained of him by the writer in point of religion; and Hyde is plainly not free from apprehension that he might favour the scheme of supplanting his brother. The intrigue might have gone a great way, though we may now think it probable that their alarm magnified the danger. "Let me tell you," says Sir Antony Ashley Cooper in a letter to Hyde, "that Wildman is as much an enemy now to the king as he was before a seeming friend; yet not upon the account of a commonwealth, for his ambition meets with every day repulses and affronts from that party; but upon a finer spun design of setting up the interest of the Duke of York against the king; in which design I fear you will find confederated the Duke of Bucks, who perhaps may draw away with him Lord Fairfax, the presbyterians, levellers, and many catholics. I am apt to think these things are not transacted without the privity of the queen; and I pray God that they have not an ill influence upon your affairs in France."--475. Buckingham was surmised to have been formally reconciled to the church of Rome. 427. Some supposed that he, with his friend Wildman, were for a republic. But such men are for nothing but the intrigue of the moment. These projects of Buckingham to set up the Duke of York are hinted at in a pamphlet by Shaftesbury or one of his party, written about 1680. _Somers Tracts_, viii. 342. [490] Hyde writes to the Duke of Ormond: "I pray inform the king that Fleetwood makes great professions of being converted, and of a resolution to serve the king upon the first opportunity." Oct. 11, 1659. Carte's _Letters_, ii. 231. See _Clarendon State Papers_, 551 (Sept. 2) and 577. But it is said afterwards, that he had "not courage enough to follow the honest thoughts which some time possess him" (592, Oct. 31), and that Manchester, Popham, and others, tried what they could do with Fleetwood; but "though they left him with good resolutions, they were so weak as not to continue longer than the next temptation."--635 (Dec. 27). [491] _Id._ 588; Carte's _Letters_, ii. 225. [492] Lord Hatton, an old royalist, suggested this humiliating proposition in terms scarcely less so to the heir of Cerdic and Fergus. "The race is a _very good gentleman's family_, and kings have condescended to marry subjects. The lady is pretty, of an extraordinary sweetness of disposition, and very virtuously and ingenuously disposed; the father is a person, set aside of his unhappy engagement, of very great parts and noble inclinations."--_Clarendon State Papers_, 592. Yet, after all, Miss Lambert was hardly more a mis-alliance than Hortense Mancini, whom Charles had asked for in vain. [493] _Biogr. Brit._ art. Monk. The royalists continued to entertain hopes of him, especially after Oliver's death. _Clarendon Papers_, iii. 393, 395, 396. In a sensible letter of Colepepper to Hyde, Sept. 20, 1658, he points out Monk as able alone to restore the king, and not absolutely averse to it, either in his principles or affections; kept hitherto by the vanity of adhering to his professions, and by his affection to Cromwell, the latter whereof is dissolved both by the jealousies he entertained of him, and by his death, etc. _Id._ 412. [494] Thurloe, vii. 387. Monk wrote about the same time against the Earl of Argyle, as not a friend to the government. 584. Two years afterwards he took away his life as being too much so. [495] If the account of his chaplain, Dr. Price, republished in Maseres' _Tracts_, vol. ii., be worthy of trust, Monk gave so much encouragement to his brother, a clergyman, secretly despatched to Scotland by Sir John Grenvil, his relation, in June 1659, as to have approved Sir George Booth's insurrection, and to have been on the point of publishing a declaration in favour of it. P. 718. But this is flatly in contradiction of what Clarendon asserts, that the general not only sent away his brother with no hopes, but threatened to hang him if he came again on such an errand. And, in fact, if anything so favourable as what Price tells us had occurred, the king could not fail to have known it. See _Clarendon State Papers_, iii. 543. This throws some suspicion on Price's subsequent narrative (so far as it professes to relate the general's intentions); so that I rely far less on it than on Monk's own behaviour, which seems irreconcilable with his professions of republican principles. It is, however, an obscure point of history, which will easily admit of different opinions. The story told by Locke, on Lord Shaftesbury's authority, that Monk had agreed with the French ambassador to take on himself the government, wherein he was to have the support of Mazarin, and that his wife, having overheard what was going forward, sent notice to Shaftesbury, who was thus enabled to frustrate the intrigue (Locke's Works, iii. 456), seems to have been confirmed lately by Mr. D'Israeli, in an extract from the manuscript memoirs of Sir Thomas Browne (_Curiosities of Literature_, N. S. vol. ii.), but in terms so nearly resembling those of Locke, that it seems to be an echo. It is certain, as we find by Phillips's continuation of Baker's _Chronicle_ (said to be assisted, in this part, by Sir Thomas Clarges, Monk's brother-in-law), that Bourdeaux, the French ambassador, did make such overtures to the general, who absolutely refused to enter upon them; but, as the writer admits, received a visit from the ambassador on condition that he should propose nothing in relation to public matters. I quote from Kennet's _Register_, 85. But, according to my present impression, this is more likely to have been the foundation of Shaftesbury's story, who might have heard from Mrs. Monk the circumstance of the visit, and conceived suspicions upon it, which he afterwards turned into proofs. It was evidently not in Monk's power to have usurped the government, after he had let the royalist inclinations of the people show themselves; and he was by no means of a rash character. He must have taken his resolution when the secluded members were restored to the house (Feb. 21); and this alleged intrigue with Mazarin could hardly have been so early. It may be added that in one of the pamphlets about the time of the exclusion bill, written by Shaftesbury himself or one of his party (_Somers Tracts_, viii. 338), he is hinted to have principally brought about the restoration; "without whose courage and dexterity some men, the most highly rewarded, had done otherwise than they did." But this still depends on his veracity. [496] Whitelock, 690. [497] The engagement was repeated March 13. This was of itself tantamount to a declaration in favour of the king; though perhaps the previous order of March 5, that the solemn league and covenant should be read in churches, was still more so. Prynne was the first who had the boldness to speak for the king, declaring his opinion that the parliament was dissolved by the death of Charles the First; he was supported by one or two more. _Clar. Papers_, 696; Thurloe, vii. 854; Carte's _Letters_, ii. 312. Prynne wrote a pamphlet advising the peers to meet and issue writs for a new parliament, according to the provisions of the triennial act; which in fact was no bad expedient. _Somers Tracts_, vi. 534. A speech of Sir Harbottle Grimston before the close of the parliament, March 1660, is more explicit for the king's restoration than anything which I have seen elsewhere; and as I do not know that it has been printed, I will give an extract from the Harleian MS. 1576. He urges it as necessary to be done by them, and not left for the next parliament, who all men believed would restore him. "This is so true and so well understood, that we all believe that whatsoever our thoughts are, this will be the opinion of the succeeding parliament, whose concerns as well as affections will make them active for his introduction. And I appeal then to your own judgments whether it is likely that those persons, as to their particular interest more unconcerned, and probably less knowing in the affairs of the nation, can or would obtain for any those terms or articles as we are yet in a capacity to procure both for them and us. I must confess sincerely that it would be as strange to me as a miracle, did I not know that God infatuates whom he designs to destroy, that we can see the king's return so unavoidable, and yet be no more studious of serving him, or at least ourselves, in the managing of his recall. "The general, that noble personage to whom under God we do and must owe all the advantages of our past and future changes, will be as far from opposing us in the design, as the design is removed from the disadvantage of the nation. He himself is, I am confident, of the same opinion; and if he has not yet given notice of it to the house, it is not that he does not look upon it as the best expedient; but he only forbears to oppose it, that he might not seem to necessitate us, and by an over early discovery of his own judgment be thought to take from us the freedom of ours." In another place he says, "That the recalling of our king is this only way (for composure of affairs), is already grown almost as visible as true; and, were it but confessed of all of whom it is believed, I should quickly hear from the greatest part of this house what now it hears alone from me. Had we as little reason to fear as we have too much, that, if we bring not in the king, he either already is, or shortly may be, in a capacity of coming in unsent for; methinks the very knowledge of this right were enough to keep just persons, such as we would be conceived to be, from being accessary to his longer absence. We are already, and but justly, reported to have been the occasion of our prince's banishment; we may then, with reason and equal truth, for ought I know, be thought to have been the contrivers of it; unless we endeavour the contrary, by not suffering the mischief to continue longer which is in our power to remove." Such passages as these, and the general tenor of public speeches, sermons, and pamphlets in the spring of 1660, show how little Monk can be justly said to have restored Charles II.; except so far that he did not persist in preventing it so long as he might have done. [498] _Clarendon State Papers_, 711. [499] _Id._ 696. [500] _Id._ 678 _et post_. He wrote a letter (Jan. 21) to the gentry of Devon, who had petitioned the speaker for the re-admission of the secluded members, objecting to that measure as likely to bring in monarchy, very judicious, and with an air of sincerity that might deceive any one; and after the restoration of these secluded members, he made a speech to them (Feb. 21), strongly against monarchy; and that so ingenuously, upon such good reasons, so much without invective or fanaticism, that the professional hypocrites, who were used to their own tone of imposture, were deceived by his. Cromwell was a mere bungler to him. See these in Harris's _Charles II._ 296, or _Somers Tracts_, vi. 551. It cannot be wondered at that the royalists were exasperated at Monk's behaviour. They published abusive pamphlets against him in February, from which Kennet, in his _Register_, p. 53, gives quotations. "Whereas he was the common hopes of all men, he is now the common hatred of all men, as a traitor more detestable than Oliver himself, who, though he manacled the citizens' hands, yet never took away the doors of the city," and so forth. It appears by the letters of Mordaunt and Broderick to Hyde, and by those of Hyde himself in the _Clarendon Papers_, that they had no sort of confidence in Monk till near the end of March; though Barwick, another of his correspondents, seems to have had more insight into the general's designs (Thurloe, 852, 860, 870), who had expressed himself to a friend of the writer, probably Clobery, fully in favour of the king, before March 19. [501] Clar. 699, 705; Thurloe, vii. 860, 870. [502] A correspondent of Ormond writes, March 16: "This night the fatal long parliament hath dissolved itself. All this appears well; but I believe we shall not be settled upon our ancient foundations without a war, for which all prepare vigorously and openly."--Carte's _Letters_, ii. 513. It appears also from a letter of Massey to Hyde, that a rising in different counties was intended. Thurloe, 854. [503] After giving the substance of Monk's speech to the house, recommending a new parliament, but insisting on commonwealth principles, Clarendon goes on; "There was no dissimulation in this, in order to cover and conceal his good intentions to the king; for without doubt he had not to this hour entertained any purpose or thought to serve him, but was really of the opinion he expressed in his paper, that it was a work impossible; and desired nothing but that he might see a commonwealth established on such a model as Holland was, where he had been bred, and that himself might enjoy the authority and place which the Prince of Orange possessed in that government." [504] The _Clarendon_ and _Thurloe Papers_ are full of more proofs of this than can be quoted, and are very amusing to read, as a perpetually shifting picture of hopes and fears, and conjectures right or wrong. Pepys's _Diary_ also, in these two months, strikingly shows the prevailing uncertainty as to Monk's intentions, as well as the general desire of having the king brought in. It seems plain that, if he had delayed a very little longer, he would have lost the whole credit of the restoration. All parties began to crowd in with addresses to the king in the first part of April, before Monk was known to have declared himself. Thurloe, among others, was full of his offers, though evidently anxious to find out whether the king had an interest with Monk. P. 898. The royalists had long entertained hopes, from time to time, of this deep politician; but it is certain he never wished well to their cause, and with St. John and Pierrepont, had been most zealous, to the last moment that it seemed practicable, against the restoration. There had been, so late as February 1660, or even afterwards, a strange plan of setting up again Richard Cromwell, wherein not only these three, but Montagu, Jones, and others were thought to be concerned, erroneously no doubt as to Montagu. _Clarendon State Papers_, 693; Carte's _Letters_, ii. 310, 330. "One of the greatest reasons they alledged was, that the king's party, consisting altogether of indigent men, will become powerful by little and little to force the king, whatever be his own disposition, to break any engagement he can now make; and, since the nation is bent on a single person, none will combine all interests so well as Richard." This made Monk, it is said, jealous of St. John, and he was chosen at Cambridge to exclude him. In a letter of Thurloe to Downing at the Hague, April 6, he says, "that many of the presbyterians are alarmed at the prospect, and thinking how to keep the king out without joining the sectaries."--vii. 887. This could hardly be achieved but by setting up Richard. Yet that, as is truly said in one of the letters quoted, was ridiculous. None were so conspicuous and intrepid on the king's side as the presbyterian ministers. Reynolds preached before the lord mayor, Feb. 28, with manifest allusion to the restoration; Gauden (who may be reckoned on that side, as conforming to it), on the same day much more explicitly. Kennet's _Register_, 69. Sharp says, in a letter to a correspondent in Scotland, that he, Ash, and Calamy had a long conversation with Monk, March 11, "and convinced him a commonwealth was impracticable, and to our sense sent him off that sense he hath hitherto maintained, and came from him as being satisfied of the necessity of dissolving this house, and calling a new parliament."--_Id._ p. 81. Baxter thinks the presbyterian ministers, together with Clarges and Morrice, turned Monk's resolution, and induced him to declare for the king. _Life_, p. 2. This is a very plausible conjecture, though I incline to think Monk more disposed that way by his own judgment or his wife's. But she was influenced by the presbyterian clergy. They evidently deserved of Charles what they did not meet with. [505] The royalists began too soon with threatening speeches, which well nigh frustrated their object. _Id._ 721, 722, 727; Carte's _Letters_, 318; Thurloe, 887. One Dr. Griffith published a little book vindicating the late king in his war against the parliament, for which the ruling party were by no means ripe; and, having justified it before the council, was committed to the Gate-house early in April. _Id. ibid._ These imprudences occasioned the king's declaration from Breda. _Somers Tracts_, vi. 562. Another also was published, April 25, 1660, signed by several peers, knights, divines, etc., of the royalist party, disclaiming all private passions and resentments. Kennet's _Register_, 120; Clar. vii. 471. But these public professions were weak disguises, when belied by their current language. See Baxter, 217. Marchmont Needham, in a tract entitled, "Interest will not lye" (written in answer to an artful pamphlet ascribed to Fell, afterwards Bishop of Oxford, and reprinted in Maseres's _Tracts_, "The Interest of England stated"), endeavoured to alarm all other parties, especially the presbyterians, with representations of the violence they had to expect from that of the king. See Harris's _Charles II._ 268. [506] Proofs of the disposition among this party to revive the treaty of the Isle of Wight occur perpetually in the Thurloe and Clarendon Papers, and in those published by Carte. The king's agents in England evidently expected nothing better; and were, generally speaking, much for his accepting the propositions. "The presbyterian lords," says Sir Allen Broderic to Hyde, "with many of whom I have spoken, pretend that, should the king come in upon any such insurrection, abetted by those of his own party, he would be more absolute than his father was in the height of his prerogative. Stay therefore, say they, till we are ready; our numbers so added will abundantly recompense the delay, rendering what is now extremely doubtful morally certain, and establishing his throne upon the true basis, liberty and property." July 16, 1659. _Clar. State Papers_, 527. [507] Clarendon, _Hist. of Rebellion_, vii. 440; _State Papers_, 705, 729. "There is so insolent a spirit among some of the nobility," says Clarendon, about the middle of February, "that I really fear it will turn to an aristocracy; Monk inclining that way too. My opinion is clear, that the king ought not to part with the church, crown, or friends' lands, lest he make my lord of Northumberland his equal, nay, perhaps his superior."--P. 680. [508] Downing, the minister at the Hague, was one of these. His overtures to the king were as early as Monk's, at the beginning of April; he declared his wish to see his majesty restored on good terms, though many were desirous to make him a doge of Venice. Carte's _Letters_, ii. 320. See also a remarkable letter of the king to Monk (dated May 21; but I suspect he used the new style, therefore read May 11), intimating what a service it would be to prevent the imposition of any terms. Clar. 745. And another from him to Morrice of the same tenor, May 20 (N. S.), 1660, and hinting that his majesty's friends in the house had complied with the general in all things, according to the king's directions, departing from their own sense, and restraining themselves from pursuing what they thought most for his service. Thurloe, vii. 912. This perhaps referred to the indemnity and other provisions then pending in the Commons, or rather to the delay of a few days before the delivery of Sir John Grenvil's message. [509] "Monk came this day (about the first week of April) to the council, and assured them that, notwithstanding all the appearance of a general desire of kingly government, yet it was in nowise his sense, and that he would spend the last drop of his blood to maintain the contrary."--Extract of a letter from Thurloe to Downing. Carte's _Letters_, ii. 322. "The council of state are utterly ignorant of Monk's treating with the king; and surely, as the present temper of the council of state is now, and may possibly be also of the parliament, by reason of the presbyterian influence upon both, I should think the first chapman will not be the worst, who perhaps will not offer so good a rate in conjunction with the company, as may give to engross the commodity." Clar. 722, April 6. This sentence is a clue to all the intrigue. It is said soon afterwards (p. 726, April 11) that the presbyterians were much troubled at the course of the elections, which made some of the council of state again address themselves to Monk for his consent to propositions they would send to the king; but he absolutely refused, and said he would leave all to a free parliament, as he had promised the nation. Yet, though the elections went as well as the royalists could reasonably expect, Hyde was dissatisfied that the king was not restored without the intervention of the new parliament; and this may have been one reason of his spleen against Monk. Pp. 726, 731. [510] A proposed resolution, that those who had been on the king's side, _or their sons_, should be disabled from voting at elections, was lost by 93 to 56, the last effort of the expiring Rump. Journals, 13 March. The electors did not think themselves bound by this arbitrary exclusion of the cavaliers from parliament; several of whom (though not perhaps a great number within the terms of the resolution) were returned. Massey, however, having gone down to stand for Glocester, was put under arrest by order of the council of state. Thurloe, 887. Clarendon, who was himself not insensible to that kind of superstition, had fancied that anything done at Glocester by Massey for the king's service would make a powerful impression on the people. [511] It is a curious proof of the state of public sentiment that, though Monk himself wrote a letter to the electors of Bridgenorth, recommending Thurloe, the cavalier party was so powerful, that his friends did not even produce the letter, lest it should be treated with neglect. Thurloe, vii. 895. [512] "To the king's coming in without conditions may be well imputed all the errors of his reign." Thus says Burnet. The great political error, if so it should be termed, of his reign, was a conspiracy with the king of France, and some wicked advisers at home, to subvert the religion and liberty of his subjects; and it is difficult to perceive by what conditions this secret intrigue could have been prevented. [513] _Clarendon Papers_, p. 729. They resolved to send the articles of that treaty to the king, leaving out the preface. This was about the middle of April. [514] _Life of Clarendon_, p. 10. [515] "This," says Burnet somewhat invidiously, "was the great service that Monk did; for as to the restoration itself, the tide ran so strong, that he only went into it dexterously enough to get much praise and great rewards."--P. 123. [516] Grimston was proposed by Pierrepont, and conducted to the chair by him, Monk, and Hollis. Journals; _Parl. Hist._ The cavaliers complained that this was done before they came into the house, and that he was partial. Mordaunt to Hyde, April 27. _Clarendon State Papers_, 734. [517] These were the Earls of Manchester, Northumberland, Lincoln, Denbigh, and Suffolk; Lords Say, Wharton, Hunsdon, Grey, Maynard. Lords' Journals, April 25. [518] _Id._ Lords' Journals. [519] "It was this day (April 27) moved in the House of Commons to call in the king; but it was deferred till Tuesday next by the king's friends' consent, and then it is generally believed something will be done in it. The calling in of the king is now not doubted; but there is a party among the old secluded members, that would have the treaty grounded upon the Isle of Wight propositions; and the old lords are thought generally of that design. But it is believed the House of Commons will use the king more gently. The general hath been highly complimented by both houses, and, without doubt, the giving the king easy or hard conditions dependeth totally upon him; for, if he appear for the king, the affections of the people are so high for him, that no other authority can oppose him." H. Coventry to Marquis of Ormond. Carte's _Letters_, ii. 328. Mordaunt confirms this. Those who moved for the king were Colonel King and Mr. Finch, both decided cavaliers. It must have been postponed by the policy of Monk. What could Clarendon mean by saying (_History of Rebellion_, vii. 478) that "none had the courage, how loyal soever their wishes were, to mention his majesty?" This strange way of speaking has misled Hume, who copies it. The king was as generally talked of as if he were on the throne. [520] Lords' and Commons' Journals. _Parl. Hist._ iv. 24. [521] Commons' Journals. [522] Lords' Journals, May 2. Upon the same day, the house went into consideration how to settle the militia of this kingdom. A committee of twelve lords was appointed for this purpose, and the Commons were requested to appoint a proportionate number to join therein. But no bill was brought in till after the king's return. CHAPTER XI FROM THE RESTORATION OF CHARLES THE SECOND TO THE FALL OF THE CABAL ADMINISTRATION _Popular joy at the restoration._--It is universally acknowledged that no measure was ever more national, or has ever produced more testimonies of public approbation, than the restoration of Charles II. Nor can this be attributed to the usual fickleness of the multitude. For the late government, whether under the parliament or the protector, had never obtained the sanction of popular consent, nor could have subsisted for a day without the support of the army. The king's return seemed to the people the harbinger of a real liberty, instead of that bastard commonwealth which had insulted them with its name; a liberty secure from enormous assessments, which, even when lawfully imposed, the English had always paid with reluctance, and from the insolent despotism of the soldiery. The young and lively looked forward to a release from the rigours of fanaticism, and were too ready to exchange that hypocritical austerity of the late times for a licentiousness and impiety that became characteristic of the present. In this tumult of exulting hope and joy, there was much to excite anxious forebodings in calmer men; and it was by no means safe to pronounce that a change so generally demanded, and in most respects so expedient, could be effected without very serious sacrifices of public and particular interests. _Proceedings of the convention parliament._--Four subjects of great importance, and some of them very difficult, occupied the convention parliament from the time of the king's return till their dissolution in the following December; a general indemnity and legal oblivion of all that had been done amiss in the late interruption of government; an adjustment of the claims for reparation which the Crown, the church, and private royalists had to prefer; a provision for the king's revenue, consistent with the abolition of military tenures; and the settlement of the church. These were, in effect, the articles of a sort of treaty between the king and the nation, without some legislative provisions as to which, no stable or tranquil course of law could be expected. _Act of indemnity._--The king, in his well-known declaration from Breda, dated the 14th of April, had laid down, as it were, certain bases of his restoration, as to some points which he knew to excite much apprehension in England. One of these was a free and general pardon to all his subjects, saving only such as should be excepted by parliament. It had always been the king's expectation, or at least that of his chancellor, that all who had been immediately concerned in his father's death should be delivered up to punishment;[523] and, in the most unpropitious state of his fortunes, while making all professions of pardon and favour to different parties, he had constantly excepted the regicides.[524] Monk, however, had advised in his first messages to the king, that none, or at most not above four, should be excepted on this account;[525] and the Commons voted that not more than seven persons should lose the benefit of the indemnity, both as to life and estate.[526] Yet, after having named seven of the late king's judges, they proceeded in a few days to add several more, who had been concerned in managing his trial, or otherwise forward in promoting his death.[527] They went on to pitch upon twenty persons, whom, on account of their deep concern in the transactions of the last twelve years, they determined to affect with penalties, not extending to death, and to be determined by some future act of parliament.[528] As their passions grew warmer, and the wishes of the court became better known, they came to except from all benefit of the indemnity such of the king's judges as had not rendered themselves to justice according to the late proclamation.[529] In this state the bill of indemnity and oblivion was sent up to the Lords.[530] But in that house, the old royalists had a more decisive preponderance than among the Commons. They voted to except all who had signed the death-warrant against Charles the First, or sat when sentence was pronounced, and five others by name, Hacker, Vane, Lambert, Haslerig, and Axtell. They struck out, on the other hand, the clause reserving Lenthall and the rest of the same class for future penalties. They made other alterations in the bill to render it more severe;[531] and with these, after a pretty long delay, and a positive message from the king, requesting them to hasten their proceedings (an irregularity to which they took no exception, and which in the eyes of the nation was justified by the circumstances), they returned the bill to the Commons. The vindictive spirit displayed by the upper house was not agreeable to the better temper of the Commons, where the presbyterian or moderate party retained great influence. Though the king's judges (such at least as had signed the death-warrant) were equally guilty, it was consonant to the practice of all humane governments to make a selection for capital penalties; and to put forty or fifty persons to death for that offence, seemed a very sanguinary course of proceeding, and not likely to promote the conciliation and oblivion so much cried up. But there was a yet stronger objection to this severity. The king had published a proclamation, in a few days after his landing, commanding his father's judges to render themselves up within fourteen days, on pain of being excepted from any pardon or indemnity, either as to their lives or estates. Many had voluntarily come in, having put an obvious construction on this proclamation. It seems to admit of little question, that the king's faith was pledged to those persons, and that no advantage could be taken of any ambiguity in the proclamation, without as real perfidiousness as if the words had been more express. They were at least entitled to be set at liberty, and to have a reasonable time allowed for making their escape, if it were determined to exclude them from the indemnity.[532] The Commons were more mindful of the king's honour and their own than his nearest advisers.[533] But the violent royalists were gaining ground among them, and it ended in a compromise. They left Hacker and Axtell, who had been prominently concerned in the king's death, to their fate. They even admitted the exceptions of Vane and Lambert; contenting themselves with a joint address of both houses to the king, that, if they should be attainted, execution as to their lives might be remitted. Haslerig was saved on a division of 141 to 116, partly through the intercession of Monk, who had pledged his word to him. Most of the king's judges were entirely excepted; but with a proviso in favour of such as had surrendered according to the proclamation, that the sentence should not be executed without a special act of parliament.[534] Others were reserved for penalties not extending to life, to be inflicted by a future act. About twenty enumerated persons, as well as those who had pronounced sentence of death in any of the late illegal high courts of justice, were rendered incapable of any civil or military office. Thus after three months' delay, which had given room to distrust the boasted clemency and forgiveness of the victorious royalists, the act of indemnity was finally passed. _Execution of regicides._--Ten persons suffered death soon afterwards for the murder of Charles the First; and three more who had been seized in Holland, after a considerable lapse of time.[535] There can be no reasonable ground for censuring either the king or the parliament for their punishment; except that Hugh Peters, though a very odious fanatic, was not so directly implicated in the king's death as many who escaped; and the execution of Scrope, who had surrendered under the proclamation, was an inexcusable breach of faith.[536] But nothing can be more sophistical than to pretend that such men as Hollis and Annesley, who had been expelled from parliament by the violence of the same faction who put the king to death, were not to vote for their punishment, or to sit in judgment on them, because they had sided with the Commons in the civil war.[537] It is mentioned by many writers, and in the Journals, that when Mr. Lenthall, son of the late speaker, in the very first days of the convention parliament, was led to say that those who had levied war against the king were as blamable as those who had cut off his head, he received a reprimand from the chair, which the folly and dangerous consequence of his position well deserved; for such language, though it seems to have been used by him in extenuation of the regicides, was quite in the tone of the violent royalists.[538] _Restitution of crown and church lands._--A question, apparently far more difficult, was that of restitution and redress. The Crown lands, those of the church, the estates in certain instances of eminent royalists, had been sold by the authority of the late usurpers; and that not at very low rates, considering the precariousness of the title. This naturally seemed a material obstacle to the restoration of ancient rights, especially in the case of ecclesiastical corporations, whom men are commonly less disposed to favour than private persons. The clergy themselves had never expected that their estates would revert to them in full propriety; and would probably have been contented, at the moment of the king's return, to have granted easy leases to the purchasers. Nor were the House of Commons, many of whom were interested in these sales, inclined to let in the former owners without conditions. A bill was accordingly brought into the house at the beginning of the session to confirm sales, or to give indemnity to the purchasers. I do not find its provisions more particularly stated. The zeal of the royalists soon caused the Crown lands to be excepted.[539] But the house adhered to the principle of composition as to ecclesiastical property, and kept the bill a long time in debate. At the adjournment in September, the chancellor told them, his majesty had thought much upon the business, and done much for the accommodation of many particular persons, and doubted not but that, before they met again, a good progress would be made, so that the persons concerned would be much to blame if they received not full satisfaction; promising also to advise with some of the Commons as to that settlement.[540] These expressions indicate a design to take the matter out of the hands of parliament. For it was Hyde's firm resolution to replace the church in the whole of its property, without any other regard to the actual possessors than the right owners should severally think it equitable to display. And this, as may be supposed, proved very small. No further steps were taken on the meeting of parliament after the adjournment; and by the dissolution the parties were left to the common course of law. The church, the Crown, the dispossessed royalists, re-entered triumphantly on their lands; there were no means of repelling the owners' claim, nor any satisfaction to be looked for by the purchasers under so defective a title. It must be owned that the facility with which this was accomplished, is a striking testimony to the strength of the new government, and the concurrence of the nation. This is the more remarkable, if it be true, as Ludlow informs us, that the chapter lands had been sold by the trustees appointed by parliament at the clear income of fifteen or seventeen years' purchase.[541] _Discontent of the royalists._--The great body however of the suffering cavaliers, who had compounded for their delinquency under the ordinances of the Long Parliament, or whose estates had been for a time in sequestration, found no remedy for these losses by any process of law. The act of indemnity put a stop to any suits they might have instituted against persons concerned in carrying these illegal ordinances into execution. They were compelled to put up with their poverty, having the additional mortification of seeing one class, namely, the clergy, who had been engaged in the same cause, not alike in their fortune, and many even of the vanquished republicans undisturbed in wealth which, directly or indirectly, they deemed acquired at their own expense.[542] They called the statute an act of indemnity for the king's enemies, and of oblivion for his friends. They murmured at the ingratitude of Charles, as if he were bound to forfeit his honour and risk his throne for their sakes. They conceived a deep hatred of Clarendon, whose steady adherence to the great principles of the act of indemnity is the most honourable act of his public life. And the discontent engendered by their disappointed hopes led to some part of the opposition afterwards experienced by the king, and still more certainly to the coalition against the minister. _Settlement of the revenue._--No one cause had so eminently contributed to the dissensions between the Crown and parliament in the two last reigns, as the disproportion between the public revenues under a rapidly increasing depreciation in the value of money, and the exigencies, at least on some occasions, of the administration. There could be no apology for the parsimonious reluctance of the Commons to grant supplies, except the constitutional necessity of rendering them the condition of redress of grievances; and in the present circumstances, satisfied, as they seemed at least to be, with the securities they had obtained, and enamoured of their new sovereign, it was reasonable to make some further provision for the current expenditure. Yet this was to be meted out with such prudence as not to place him beyond the necessity of frequent recurrence to their aid. A committee was accordingly appointed "to consider of settling such a revenue on his majesty as may maintain the splendour and grandeur of his kingly office, and preserve the Crown from want, and from being undervalued by his neighbours." By their report it appeared that the revenue of Charles I. from 1637 to 1641 had amounted on an average to about £900,000, of which full £200,000 arose from sources either not warranted by law or no longer available. The house resolved to raise the present king's income to £1,200,000 per annum; a sum perhaps sufficient in those times for the ordinary charges of government. But the funds assigned to produce this revenue soon fell short of the parliament's calculation.[543] _Abolition of military tenures. Excise granted instead._--One ancient fountain that had poured its stream into the royal treasury, it was now determined to close up for ever. The feudal tenures had brought with them at the conquest, or not long after, those incidents, as they were usually called, or emoluments of signiory, which remained after the military character of fiefs had been nearly effaced; especially the right of detaining the estates of minors holding in chivalry, without accounting for the profits. This galling burthen, incomparably more ruinous to the tenant than beneficial to the lord, it had long been determined to remove. Charles, at the treaty of Newport, had consented to give it up for a fixed revenue of £100,000; and this was almost the only part of that ineffectual compact which the present parliament were anxious to complete. The king, though likely to lose much patronage and influence, and what passed with lawyers for a high attribute of his prerogative, could not decently refuse a commutation so evidently advantageous to the aristocracy. No great difference of opinion subsisting as to the expediency of taking away military tenures, it remained only to decide from what resources the commutation revenue should spring. Two schemes were suggested; the one, a permanent tax on lands held in chivalry (which, as distinguished from those in socage, were alone liable to the feudal burthens); the other, an excise on beer and some other liquors. It is evident that the former was founded on a just principle; while the latter transferred a particular burthen to the community. But the self-interest which so unhappily predominates even in representative assemblies, with the aid of the courtiers who knew that an excise increasing with the riches of the country was far more desirable for the Crown than a fixed land-tax, caused the former to be carried, though by the very small majority of two voices.[544] Yet even thus, if the impoverishment of the gentry, and dilapidation of their estates through the detestable abuses of wardship, was, as cannot be doubted, very mischievous to the inferior classes, the whole community must be reckoned gainers by the arrangement, though it might have been conducted in a more equitable manner. The statute 12 Car. II. c. 24. takes away the court of wards, with all wardships and forfeitures for marriage by reason of tenure, all primer seisins, and fines for alienation, aids, escuages, homages, and tenures by chivalry without exception, save the honorary services of grand sergeanty; converting all such tenures into common socage. The same statute abolishes those famous rights of purveyance and pre-emption, the fruitful theme of so many complaining parliaments; and this relief of the people from a general burthen may serve in some measure as an apology for the imposition of the excise. This act may be said to have wrought an important change in the spirit of our constitution, by reducing what is emphatically called the prerogative of the Crown, and which, by its practical exhibition in these two vexatious exercises of power, wardship, and purveyance, kept up in the minds of the people a more distinct perception, as well as more awe, of the monarchy, than could be felt in later periods, when it has become, as it were, merged in the common course of law, and blended with the very complex mechanism of our institutions. This great innovation however is properly to be referred to the revolution of 1641, which put an end to the court of star-chamber, and suspended the feudal superiorities. Hence, with all the misconduct of the two last Stuarts, and all the tendency towards arbitrary power that their government often displayed, we must perceive that the constitution had put on, in a very great degree, its modern character during that period; the boundaries of prerogative were better understood; its pretensions, at least in public, were less enormous; and not so many violent and oppressive, certainly not so many illegal, acts were committed towards individuals as under the two first of their family. _Army disbanded._--In fixing upon £1,200,000 as a competent revenue for the Crown, the Commons tacitly gave it to be understood that a regular military force was not among the necessities for which they meant to provide. They looked upon the army, notwithstanding its recent services, with that apprehension and jealousy which becomes an English House of Commons. They were still supporting it by monthly assessments of £70,000, and could gain no relief by the king's restoration till that charge came to an end. A bill therefore was sent up to the Lords before their adjournment in September, providing money for disbanding the land forces. This was done during the recess; the soldiers received their arrears with many fair words of praise, and the nation saw itself, with delight and thankfulness to the king, released from its heavy burthens and the dread of servitude.[545] Yet Charles had too much knowledge of foreign countries, where monarchy flourished in all its plenitude of sovereign power under the guardian sword of a standing army, to part readily with so favourite an instrument of kings. Some of his counsellors, and especially the Duke of York, dissuaded him from disbanding the army, or at least advised his supplying its place by another. The unsettled state of the kingdom after so momentous a revolution, the dangerous audacity of the fanatical party, whose enterprises were the more to be guarded against, that they were founded on no such calculation as reasonable men would form, and of which the insurrection of Venner in November 1660 furnished an example, did undoubtedly appear a very plausible excuse for something more of a military protection to the government than yeomen of the guard and gentlemen pensioners. General Monk's regiment, called the Coldstream, and one other of horse, were accordingly retained by the king in his service; another was formed out of troops brought from Dunkirk; and thus began, under the name of guards, the present regular army of Great Britain.[546] In 1662 these amounted to about 5000 men; a petty force according to our present notions, or to the practice of other European monarchies in that age, yet sufficient to establish an alarming precedent, and to open a new source of contention between the supporters of power and those of freedom. So little essential innovation had been effected by twenty years' interruption of the regular government in the common law or course of judicial proceedings, that, when the king and House of Lords were restored to their places, little more seemed to be requisite than a change of names. But what was true of the state could not be applied to the church. The revolution there had gone much farther, and the questions of restoration and compromise were far more difficult. _Clergy restored to their benefices._--It will be remembered that such of the clergy as steadily adhered to the episcopal constitution had been expelled from their benefices by the long parliament under various pretexts, and chiefly for refusing to take the covenant. The new establishment was nominally presbyterian. But the presbyterian discipline and synodical government were very partially introduced; and, upon the whole, the church, during the suspension of the ancient laws, was rather an assemblage of congregations than a compact body, having little more unity than resulted from their common dependency on the temporal magistrate. In the time of Cromwell, who favoured the independent sectaries, some of that denomination obtained livings; but very few, I believe, comparatively, who had not received either episcopal or presbyterian ordination. The right of private patronage to benefices, and that of tithes, though continually menaced by the more violent party, subsisted without alteration. Meanwhile the episcopal ministers, though excluded from legal toleration along with papists, by the instrument of government under which Cromwell professed to hold his power, obtained, in general, a sufficient indulgence for the exercise of their function.[547] Once, indeed, on discovery of the royalist conspiracy in 1655, he published a severe ordinance, forbidding every ejected minister or fellow of a college to act as domestic chaplain or schoolmaster. But this was coupled with a promise to show as much tenderness as might consist with the safety of the nation towards such of the said persons as should give testimony of their good affection to the government; and, in point of fact, this ordinance was so far from being rigorously observed, that episcopalian conventicles were openly kept in London.[548] Cromwell was of a really tolerant disposition, and there had perhaps, on the whole, been no period of equal duration wherein the catholics themselves suffered so little molestation as under the protectorate.[549] It is well known that he permitted the settlement of Jews in England, after an exclusion of nearly three centuries, in spite of the denunciations of some bigoted churchmen and lawyers. _Hopes of the presbyterians from the king._--The presbyterian clergy, though co-operating in the king's restoration, experienced very just apprehensions of the church they had supplanted; and this was in fact one great motive of the restrictions that party was so anxious to impose on him. His character and sentiments were yet very imperfectly known in England; and much pains were taken on both sides, by short pamphlets, panegyrical or defamatory, to represent him as the best Englishman and best protestant of the age, or as one given up to profligacy and popery.[550] The caricature likeness was, we must now acknowledge, more true than the other; but at that time it was fair and natural to dwell on the more pleasing picture. The presbyterians remembered that he was what they called a covenanted king; that is, that, for the sake of the assistance of the Scots, he had submitted to all the obligations, and taken all the oaths, they thought fit to impose.[551] But it was well known that, on the failure of those prospects, he had returned to the church of England, and that he was surrounded by its zealous adherents. Charles, in his declaration from Breda, promised to grant liberty of conscience, so that no man should be disquieted or called in question for differences of opinion in matters of religion which do not disturb the peace of the kingdom, and to consent to such acts of parliament as should be offered for him for confirming that indulgence. But he was silent as to the church establishment; and the presbyterian ministers, who went over to present the congratulations of their body, met with civil language, but no sort of encouragement to expect any personal compliance on the king's part with their mode of worship. _Projects for a compromise._--The moderate party in the convention parliament, though not absolutely of the presbyterian interest, saw the danger of permitting an oppressed body of churchmen to regain their superiority without some restraint. The actual incumbents of benefices were, on the whole, a respectable and even exemplary class, most of whom could not be reckoned answerable for the legal defects of their title. But the ejected ministers of the Anglican church, who had endured for their attachment to its discipline and to the Crown so many years of poverty and privation, stood in a still more favourable light, and had an evident claim to restoration. The Commons accordingly, before the king's return, prepared a bill for confirming and restoring ministers; with the twofold object of replacing in their benefices, but without their legal right to the intermediate profits, the episcopal clergy who by ejection or forced surrender had made way for intruders, and at the same time of establishing the possession, though originally usurped, of those against whom there was no claimant living to dispute it, as well as of those who had been presented on legal vacancies.[552] This act did not pass without opposition of the cavaliers, who panted to retaliate the persecution that had afflicted their church.[553] This legal security however for the enjoyment of their livings gave no satisfaction to the scruples of conscientious men. The episcopal discipline, the Anglican liturgy and ceremonies having never been abrogated by law, revived of course with the constitutional monarchy; and brought with them all the penalties that the act of uniformity and other statutes had inflicted. The nonconforming clergy threw themselves on the king's compassion, or gratitude, or policy, for relief. The independents, too irreconcilable to the established church for any scheme of comprehension, looked only to that liberty of conscience which the king's declaration from Breda had held forth.[554] But the presbyterians soothed themselves with hopes of retaining their benefices by some compromise with their adversaries. They had never, generally speaking, embraced the rigid principles of the Scottish clergy, and were willing to admit what they called a moderate episcopacy. They offered, accordingly, on the king's request to know their terms, a middle scheme, usually denominated Bishop Usher's Model; not as altogether approving it, but because they could not hope for anything nearer to their own views. This consisted, first, in the appointment of a suffragan bishop for each rural deanery, holding a monthly synod of the presbyters within his district; and, secondly, in an annual diocesan synod of suffragans and representatives of the presbyters, under the presidency of the bishop, and deciding upon all matters before them by plurality of suffrages.[555] This is, I believe, considered by most competent judges as approaching more nearly than our own system to the usage of the primitive church, which gave considerable influence and superiority of rank to the bishop, without destroying the aristocratical character and co-ordinate jurisdiction of the ecclesiastical senate.[556] It lessened also the inconveniences supposed to result from the great extent of some English dioceses. But, though such a system was inconsistent with that parity which the rigid presbyterians maintained to be indispensable, and those who espoused it are reckoned, in a theological division, among episcopalians, it was, in the eyes of equally rigid churchmen, little better than a disguised presbytery, and a real subversion of the Anglican hierarchy.[557] The presbyterian ministers, or rather a few eminent persons of that class, proceeded to solicit a revision of the liturgy, and a consideration of the numerous objections which they made to certain passages, while they admitted the lawfulness of a prescribed form. They implored the king also to abolish, or at least not to enjoin as necessary, some of those ceremonies which they scrupled to use, and which in fact had been the original cause of their schism; the surplice, the cross in baptism, the practice of kneeling at the communion, and one or two more. A tone of humble supplication pervades all their language, which some might invidiously contrast with their unbending haughtiness in prosperity. The bishops and other Anglican divines, to whom their propositions were referred, met the offer of capitulation with a scornful and vindictive smile. They held out not the least overture towards a compromise. The king however deemed it expedient, during the continuance of a parliament, the majority of whom were desirous of union in the church, and had given some indications of their disposition,[558] to keep up the delusion a little longer, and prevent the possible consequences of despair. He had already appointed several presbyterian ministers his chaplains, and given them frequent audiences. But during the recess of parliament he published a declaration, wherein, after some compliments to the ministers of the presbyterian opinion, and an artful expression of satisfaction that he had found them no enemies to episcopacy or a liturgy, as they had been reported to be, he announces his intention to appoint a sufficient number of suffragan bishops in the larger dioceses; he promises that no bishop should ordain or exercise any part of his spiritual jurisdiction without advice and assistance of his presbyters; that no chancellors or officials of the bishops should use any jurisdiction over the ministry, nor any archdeacon without the advice of a council of his clergy; that the dean and chapter of the diocese, together with an equal number of presbyters, annually chosen by the clergy, should be always advising and assisting at all ordinations, church censures, and other important acts of spiritual jurisdiction. He declared also that he would appoint an equal number of divines of both persuasions to revise the liturgy; desiring that in the meantime none would wholly lay it aside, yet promising that no one should be molested for not using it till it should be reviewed and reformed. With regard to ceremonies, he declared that none should be compelled to receive the sacrament kneeling, nor to use the cross in baptism, nor to bow at the name of Jesus, nor to wear the surplice, except in the royal chapel and in cathedrals, nor should subscription to articles not doctrinal be required. He renewed also his declaration from Breda, that no man should be called in question for differences of religious opinion, not disturbing the peace of the kingdom.[559] Though many of the presbyterian party deemed this modification of Anglican episcopacy a departure from their notions of an apostolic church, and inconsistent with their covenant, the majority would doubtless have acquiesced in so extensive a concession from the ruling power. If faithfully executed, according to its apparent meaning, it does not seem that the declaration falls very short of their own proposal, the scheme of Usher.[560] The high churchmen indeed would have murmured, had it been made effectual. But such as were nearest the king's councils well knew that nothing else was intended by it than to scatter dust in men's eyes, and prevent the interference of parliament. This was soon rendered manifest, when a bill to render the king's declaration effectual was vigorously opposed by the courtiers, and rejected on a second reading by 183 to 157.[561] Nothing could more forcibly demonstrate an intention of breaking faith with the presbyterians than this vote. For the king's declaration was repugnant to the act of uniformity and many other statutes, so that it could not be carried into effect without the authority of parliament, unless by means of such a general dispensing power as no parliament would endure.[562] And it is impossible to question that a bill for confirming it would have easily passed through this House of Commons, had it not been for the resistance of the government. _Convention parliament dissolved._--Charles now dissolved the convention parliament, having obtained from it what was immediately necessary, but well aware that he could better accomplish his objects with another. It was studiously inculcated by the royalist lawyers that as this assembly had not been summoned by the king's writ, none of its acts could have any real validity, except by the confirmation of a true parliament.[563] This doctrine being applicable to the act of indemnity left the kingdom in a precarious condition till an undeniable security could be obtained, and rendered the dissolution almost necessary. Another parliament was called of very different composition from the last. Possession and the standing ordinances against royalists had enabled the secluded members of 1648, that is, the adherents of the long parliament, to stem with some degree of success the impetuous tide of loyalty in the last elections, and put them almost upon an equality with the court. But, in the new assembly, cavaliers, and the sons of cavaliers, entirely predominated; the great families, the ancient gentry, the episcopal clergy, resumed their influence; the presbyterians and sectarians feared to have their offences remembered; so that we may rather be surprised that about fifty or sixty who had belonged to the opposite side found places in such a parliament, than that its general complexion should be decidedly royalist. The presbyterian faction seemed to lie prostrate at the feet of those on whom they had so long triumphed, without any force of arms or civil convulsion, as if the king had been brought in against their will. Nor did the cavaliers fail to treat them as enemies to monarchy, though it was notorious that the restoration was chiefly owing to their endeavours.[564] _Different complexion of the new parliament._--The new parliament gave the first proofs of their disposition by voting that all their members should receive the sacrament on a certain day according to the rites of the church of England, and that the solemn league and covenant should be burned by the common hangman.[565] They excited still more serious alarm by an evident reluctance to confirm the late act of indemnity, which the king at the opening of the session had pressed upon their attention. Those who had suffered the sequestrations and other losses of a vanquished party, could not endure to abandon what they reckoned a just reparation. But Clarendon adhered with equal integrity and prudence to this fundamental principle of the restoration; and, after a strong message from the king on the subject, the Commons were content to let the bill pass with no new exceptions.[566] They gave indeed some relief to the ruined cavaliers, by voting £60,000 to be distributed among that class; but so inadequate a compensation did not assuage their discontents. _Condemnation of Vane._--It has been mentioned above, that the late House of Commons had consented to the exception of Vane and Lambert from indemnity on the king's promise that they should not suffer death. They had lain in the Tower accordingly, without being brought to trial. The regicides who had come in under the proclamation were saved from capital punishment by the former act of indemnity. But the present parliament abhorred this lukewarm lenity. A bill was brought in for the execution of the king's judges in the Tower; and the attorney-general was requested to proceed against Vane and Lambert.[567] The former was dropped in the House of Lords; but those formidable chiefs of the commonwealth were brought to trial. Their indictments alleged as overt acts of high treason against Charles II. their exercise of civil and military functions under the usurping government; though not, as far as appears, expressly directed against the king's authority, and certainly not against his person. Under such an accusation, many who had been the most earnest in the king's restoration might have stood at the bar. Thousands might apply to themselves, in the case of Vane, the beautiful expressions of Mrs. Hutchinson, as to her husband's feelings at the death of the regicides, that he looked on himself as judged in their judgment and executed in their execution. The stroke fell upon one, the reproach upon many. The condemnation of Sir Henry Vane was very questionable even according to the letter of the law. It was plainly repugnant to its spirit. An excellent statute enacted under Henry VII., and deemed by some great writers to be only declaratory of the common law, but occasioned, no doubt, by some harsh judgments of treason which had been pronounced during the late competition of the house of York and Lancaster, assured a perfect indemnity to all persons obeying a king for the time being, however defective his title might come to be considered, when another claimant should gain possession of the throne. It established the duty of allegiance to the existing government upon a general principle; but in its terms it certainly presumed that government to be a monarchy. This furnished the judges upon the trial of Vane with a distinction, of which they willingly availed themselves. They proceeded however beyond all bounds of constitutional precedents and of common sense, when they determined that Charles the Second had been king _de facto_ as well as _de jure_ from the moment of his father's death, though, in the words of their senseless sophistry, "kept out of the exercise of his royal authority by traitors and rebels." He had indeed assumed the title during his exile, and had granted letters patent for different purposes, which it was thought proper to hold good after his restoration; thus presenting the strange anomaly, and as it were contradiction in terms, of a king who began to govern in the twelfth year of his reign. But this had not been the usage of former times. Edward IV., Richard III., Henry VII., had dated their instruments either from their proclamation, or at least from some act of possession. The question was not whether a right to the Crown descended according to the laws of inheritance; but whether such a right, divested of possession, could challenge allegiance as a bounden duty by the law of England. This is expressly determined in the negative by Lord Coke in his third Institute, who maintains a king "that hath right, and is out of possession," not to be within the statute of treasons. He asserts also that a pardon granted by him would be void; which by parity of reasoning must extend to all his patents.[568] We may consider therefore the execution of Vane as one of the most reprehensible actions of this bad reign. It not only violated the assurance of indemnity, but introduced a principle of sanguinary proscription, which would render the return of what is called legitimate government, under any circumstances, an intolerable curse to a nation.[569] The king violated his promise by the execution of Vane, as much as the judges strained the law by his conviction. He had assured the last parliament, in answer to their address, that, if Vane and Lambert should be attainted by law he would not suffer the sentence to be executed. Though the present parliament had urged the attorney-general to bring these delinquents to trial, they had never, by an address to the king, given him a colour for retracting his promise of mercy. It is worthy of notice that Clarendon does not say a syllable about Vane's trial; which affords a strong presumption that he thought it a breach of the act of indemnity. But we have on record a remarkable letter of the king to his minister, wherein he expresses his resentment at Vane's bold demeanour during his trial, and intimates a wish for his death, though with some doubts whether it could be honourably done.[570] Doubts of such a nature never lasted long with this prince; and Vane suffered the week after. Lambert, whose submissive behaviour had furnished a contrast with that of Vane, was sent to Guernsey; and remained a prisoner for thirty years. The royalists have spoken of Vane with extreme dislike; yet it should be remembered that he was not only incorrupt, but disinterested, inflexible in conforming his public conduct to his principles, and averse to every sanguinary or oppressive measure: qualities not very common in revolutionary chiefs, and which honourably distinguished him from the Lamberts and Haslerigs of his party.[571] _Acts replacing the Crown in its prerogatives._--No time was lost, as might be expected from the temper of the Commons, in replacing the throne on its constitutional basis after the rude encroachments of the long parliament. They declared that there was no legislative power in either or both houses without the king; that the league and covenant was unlawfully imposed; that the sole supreme command of the militia, and of all forces by sea and land, had ever been by the laws of England the undoubted right of the Crown; that neither house of parliament could pretend to it, nor could lawfully levy any war offensive or defensive against his majesty.[572] These last words appeared to go to a dangerous length, and to sanction the suicidal doctrine of absolute non-resistance. They made the law of high treason more strict during the king's life in pursuance of a precedent in the reign of Elizabeth.[573] They restored the bishops to their seats in the House of Lords; a step which the last parliament would never have been induced to take, but which met with little opposition from the present.[574] The violence that had attended their exclusion seemed a sufficient motive for rescinding a statute so improperly obtained, even if the policy of maintaining the spiritual peers were somewhat doubtful. The remembrance of those tumultuous assemblages which had overawed their predecessors in the winter of 1641, and at other times, produced a law against disorderly petitions. This statute provides that no petition or address shall be presented to the king or either house of parliament by more than ten persons; nor shall any one procure above twenty persons to consent or set their hands to any petition for alteration of matters established by law in church or state, unless with the previous order of three justices of the county, or the major part of the grand jury.[575] _Corporation act._--Thus far the new parliament might be said to have acted chiefly on a principle of repairing the breaches recently made in our constitution, and of re-establishing the just boundaries of the executive power; nor would much objection have been offered to their measures, had they gone no farther in the same course. The act for regulating corporations is much more questionable, and displayed a determination to exclude a considerable portion of the community from their civil rights. It enjoined all magistrates and persons bearing offices of trust in corporations to swear that they believed it unlawful, on any pretence whatever, to take arms against the king, and that they abhorred the traitorous position of bearing arms by his authority against his person, or against those that are commissioned by him. They were also to renounce all obligation arising out of the oath called the solemn league and covenant; in case of refusal, to be immediately removed from office. Those elected in future were, in addition to the same oaths, to have received the sacrament within one year before their election according to the rites of the English church.[576] These provisions struck at the heart of the presbyterian party, whose strength lay in the little oligarchies of corporate towns, which directly or indirectly returned to parliament a very large proportion of its members. Yet it rarely happens that a political faction is crushed by the terrors of an oath. Many of the more rigid presbyterians refused the conditions imposed by this act; but the majority found pretexts for qualifying themselves. _Repeal of the triennial act._--It could not yet be said that this loyal assembly had meddled with those safeguards of public liberty which had been erected by their great predecessors in 1641. The laws that Falkland and Hampden had combined to provide, those bulwarks against the ancient exorbitance of prerogative, stood unscathed; threatened from afar, but not yet betrayed by the garrison. But one of these, the bill for triennial parliaments, wounded the pride of royalty, and gave scandal to his worshippers; not so much on account of its object, as of the securities provided against its violation. If the king did not summon a fresh parliament within three years after a dissolution, the peers were to meet and issue writs of their own accord; if they did not within a certain time perform this duty, the sheriffs of every county were to take it on themselves; and, in default of all constituted authorities the electors might assemble without any regular summons to choose representatives. It was manifest that the king must have taken a fixed resolution to trample on a fundamental law, before these irregular tumultuous modes of redress could be called into action; and that the existence of such provisions could not in any degree weaken or endanger the legal and limited monarchy. But the doctrine of passive obedience had now crept from the homilies into the statute-book; the parliament had not scrupled to declare the unlawfulness of defensive war against the king's person; and it was but one step more to take away all direct means of counteracting his pleasure. Bills were accordingly more than once ordered to be brought in for repealing the triennial act; but no further steps were taken till the king thought it at length necessary in the year 1664 to give them an intimation of his desires.[577] A vague notion had partially gained ground that no parliament, by virtue of that bill, could sit for more than three years. In allusion to this, he told them, on opening the session of 1664, that he "had often read over that bill; and, though there was no colour for the fancy of the determination of the parliament, yet he would not deny that he had always expected them to consider the wonderful clauses in that bill, which passed in a time very uncareful for the dignity of the Crown or the security of the people. He requested them to look again at it. For himself, he loved parliaments; he was much beholden to them; he did not think the Crown could ever be happy without frequent parliaments. But assure yourselves," he concluded, "if I should think otherwise I would never suffer a parliament to come together by the means prescribed by that bill."[578] So audacious a declaration, equivalent to an avowed design, in certain circumstances, of preventing the execution of the laws by force of arms, was never before heard from the lips of an English king; and would in any other times have awakened a storm of indignation from the Commons. They were however sufficiently compliant to pass a bill for the repeal of that which had been enacted with unanimous consent in 1641, and had been hailed as the great palladium of constitutional monarchy. The preamble recites the said act to have been "in derogation of his majesty's just rights and prerogative inherent in the imperial Crown of this realm for the calling and assembling of parliaments." The bill then repeals and annuls every clause and article in the fullest manner; yet, with an inconsistency not unusual in our statutes, adds a provision that parliaments shall not in future be intermitted for above three years at the most. This clause is evidently framed in a different spirit from the original bill, and may be attributed to the influence of that party in the house, which had begun to oppose the court, and already showed itself in considerable strength.[579] Thus the effect of this compromise was, that the law of the long parliament subsisted as to its principle, without those unusual clauses which had been enacted to render its observance secure. The king assured them, in giving his assent to the repeal, that he would not be a day more without a parliament on that account. But the necessity of those securities, and the mischiefs of that false and servile loyalty which abrogated them, became manifest at the close of the present reign; nearly four years having elapsed between the dissolution of Charles's last parliament and his death. Clarendon, the principal adviser, as yet, of the king since his restoration (for Southampton rather gave reputation to the administration than took that superior influence which belonged to his place of treasurer), has thought fit to stigmatise the triennial bill with the epithet of infamous. So wholly had he divested himself of the sentiments he entertained at the beginning of the long parliament that he sought nothing more ardently than to place the Crown again in a condition to run into those abuses and excesses against which he had once so much inveighed. "He did never dissemble," he says, "from the time of his return with the king, that the late rebellion could never be extirpated and pulled up by the roots till the king's regal and inherent power and prerogative should be fully avowed and vindicated, and till the usurpations in both houses of parliament, since the year 1640, were disclaimed and made odious; and many other excesses, which had been affected by both before that time under the name of privileges, should be restrained or explained. For all which reformation the kingdom in general was very well disposed, when it pleased God to restore the king to it. The present parliament had done much, and would willingly have prosecuted the same method, if they had had the same advice and encouragement."[580] I can only understand these words to mean that they might have been led to repeal other statutes of the long parliament, besides the triennial act, and that excluding the bishops from the House of Peers; but more especially, to have restored the two great levers of prerogative, the courts of star-chamber and high-commission. This would indeed have pulled up by the roots the work of the long parliament, which, in spite of such general reproach, still continued to shackle the revived monarchy. There had been some serious attempts at this in the House of Lords during the session of 1661-2. We read in the Journals[581] that a committee was appointed to prepare a bill for repealing all acts made in the parliament begun the 3rd day of November 1640, and for re-enacting such of them as should be thought fit. This committee some time after[582] reported their opinion, "that it was fit for the good of the nation, that there be a court of like nature to the late court called the star-chamber; but desired the advice and directions of the house in these particulars following: Who should be judges? What matters should they be judges of? By what manner of proceedings should they act?" The house, it is added, thought it not fit to give any particular directions therein, but left it to the committee to proceed as they would. It does not appear that anything further was done in this session; but we find the bill of repeal revived next year.[583] It is however only once mentioned. Perhaps it may be questionable whether, even amidst the fervid loyalty of 1661, the House of Commons would have concurred in re-establishing the star-chamber. They had taken marked precautions in passing an act for the restoration of ecclesiastical jurisdiction, that it should not be construed to restore the high-commission court, or to give validity to the canons of 1640, or to enlarge in any manner the ancient authority of the church.[584] A tribunal still more formidable and obnoxious would hardly have found favour with a body of men, who, as their behaviour shortly demonstrated, might rather be taxed with passion and vindictiveness towards a hostile faction, than a deliberate willingness to abandon their English rights and privileges. The striking characteristic of this parliament was a zealous and intolerant attachment to the established church, not losing an atom of their aversion to popery in their abhorrence of protestant dissent. In every former parliament since the reformation, the country party (if I may use such a word, by anticipation, for those gentlemen of landed estates who owed their seats to their provincial importance, as distinguished from courtiers, lawyers, and dependents on the nobility), had incurred with rigid churchmen the reproach of puritanical affections. They were implacable against popery, but disposed to far more indulgence with respect to nonconformity than the very different maxims of Elizabeth and her successors would permit. Yet it is obvious that the puritan Commons of James I. and the high church Commons of Charles II. were composed, in a great measure, of the same families, and entirely of the same classes. But, as the arrogance of the prelates had excited indignation, and the sufferings of the scrupulous clergy begotten sympathy in one age, so the reversed scenes of the last twenty years had given to the former, or their adherents, the advantage of enduring oppression with humility and fortitude, and displayed in the latter, or at least many of their number, those odious and malevolent qualities which adversity had either concealed or rendered less dangerous. The gentry, connected for the most part by birth or education with the episcopal clergy, could not for an instant hesitate between the ancient establishment, and one composed of men whose eloquence in preaching was chiefly directed towards the common people, and presupposed a degree of enthusiasm in the hearer which the higher classes rarely possessed. They dreaded the wilder sectaries, foes to property, or at least to its political influence, as much as to the regal constitution; and not unnaturally, though without perfect fairness, confounded the presbyterian or moderate nonconformist in the motley crowd of fanatics, to many of whose tenets he at least more approximated than the church of England minister. _Presbyterians deceived by the king._--There is every reason to presume, as I have already remarked, that the king had no intention but to deceive the presbyterians and their friends in the convention parliament by his declaration of October 1660.[585] He proceeded, after the dissolution of that assembly, to fill up the number of bishops, who had been reduced to nine, but with no further mention of suffragans, or of the council of presbyters, which had been announced in that declaration.[586] It does indeed appear highly probable that this scheme of Usher would have been found inconvenient and even impracticable; and reflecting men would perhaps be apt to say that the usage of primitive antiquity, upon which all parties laid so much stress, was rather a presumptive argument against the adoption of any system of church-government, in circumstances so widely different, than in favour of it. But inconvenient and impracticable provisions carry with them their own remedy; and the king might have respected his own word, and the wishes of a large part of the church, without any formidable danger to episcopal authority. It would have been, however, too flagrant a breach of promise (and yet hardly greater than that just mentioned) if some show had not been made of desiring a reconciliation on the subordinate details of religious ceremonies and the liturgy. This produced a conference held at the Savoy, in May 1661, between twenty-one Anglican and as many presbyterian divines: the latter were called upon to propose their objections; it being the part of the others to defend. They brought forward so long a list as seemed to raise little hope of agreement. Some of these objections to the service, as may be imagined, were rather captious and hypercritical; yet in many cases they pointed out real defects. As to ceremonies, they dwelt on the same scruples as had from the beginning of Elizabeth's reign produced so unhappy a discordance, and had become inveterate by so much persecution. The conference was managed with great mutual bitterness and recrimination; the one party stimulated by vindictive hatred and the natural arrogance of power; the other irritated by the manifest design of breaking the king's faith, and probably by a sense of their own improvidence in ruining themselves by his restoration. The chief blame, it cannot be dissembled, ought to fall on the churchmen. An opportunity was afforded of healing, in a very great measure, that schism and separation which, if they are to be believed, is one of the worst evils that can befall a christian community. They had it in their power to retain, or to expel, a vast number of worthy and laborious ministers of the gospel, with whom they had, in their own estimation, no essential ground of difference. They knew the king, and consequently themselves, to have been restored with (I might almost say by) the strenuous co-operation of those very men who were now at their mercy. To judge by the rules of moral wisdom, or of the spirit of Christianity (to which, notwithstanding what might be satirically said of experience, it is difficult not to think we have a right to expect that a body of ecclesiastics should pay some attention), there can be no justification for the Anglican party on this occasion. They have certainly one apology, the best very frequently that can be offered for human infirmity; they had sustained a long and unjust exclusion from the emoluments of their profession, which begot a natural dislike towards the members of the sect that had profited at their expense, though not, in general, personally responsible for their misfortunes.[587] The Savoy conference broke up in anger, each party more exasperated and more irreconcilable than before. This indeed has been the usual consequence of attempts to bring men to an understanding on religious differences by explanation or compromise. The public is apt to expect too much from these discussions; unwilling to believe either that those who have a reputation for piety can be wanting in desire to find the truth, or that those who are esteemed for ability can miss it. And this expectation is heightened by the language rather too strongly held by moderate and peaceable divines, that little more is required than an understanding of each other's meaning, to unite conflicting sects in a common faith. But as it generally happens that the disputes of theologians, though far from being so important as they appear to the narrow prejudices and heated passions of the combatants, are not wholly nominal, or capable of being reduced to a common form of words, the hopes of union and settlement vanish upon that closer enquiry which conferences and schemes of agreement produce. And though this may seem rather applicable to speculative controversies than to such matters as were debated between the church and the presbyterians at the Savoy conference, and which are in their nature more capable of compromise than articles of doctrine; yet the consequence of exhibiting the incompatibility and reciprocal alienation of the two parties in a clearer light was nearly the same. A determination having been taken to admit of no extensive comprehension, it was debated by the government whether to make a few alterations in the liturgy, or to restore the ancient service in every particular. The former advice prevailed, though with no desire or expectation of conciliating any scrupulous persons by the amendments introduced.[588] These were by no means numerous, and in some instances rather chosen in order to irritate and mock the opposite party than from any compliance with their prejudices. It is indeed very probable, from the temper of the new parliament, that they would not have come into more tolerant and healing measures. _Act of uniformity._--When the act of uniformity was brought into the House of Lords, it was found not only to restore all the ceremonies and other matters to which objection had been taken, but to contain fresh clauses more intolerable than the rest to the presbyterian clergy. One of these enacted that not only every beneficed minister, but fellow of a college, or even schoolmaster, should declare his unfeigned assent and consent to all and everything contained in the book of common prayer.[589] These words, however capable of being eluded and explained away, as such subscriptions always are, seemed to amount, in common use of language, to a complete approbation of an entire volume, such as a man of sense hardly gives to any book, and which, at a time when scrupulous persons were with great difficulty endeavouring to reconcile themselves to submission, placed a new stumbling-block in their way, which, without abandoning their integrity, they found it impossible to surmount. The malignity of those who chiefly managed church affairs at this period displayed itself in another innovation tending to the same end. It had been not unusual, from the very beginnings of our reformation, to admit ministers ordained in foreign protestant churches to benefices in England. No re-ordination had ever been practised with respect to those who had received the imposition of hands in a regular church; and hence it appears that the church of England, whatever tenets might latterly have been broached in controversy, did not consider the ordination of presbyters invalid. Though such ordinations as had taken place during the late troubles, and by virtue of which a great part of the actual clergy were in possession, were evidently irregular, on the supposition that the English episcopal church was then in existence; yet, if the argument from such great convenience as men call necessity was to prevail, it was surely worth while to suffer them to pass without question for the present, enacting provisions, if such were required, for the future. But this did not fall in with the passion and policy of the bishops, who found a pretext for their worldly motives of action in the supposed divine right and necessity of episcopal succession; a theory naturally more agreeable to arrogant and dogmatical ecclesiastics than that of Cranmer, who saw no intrinsic difference between bishops and priests; or of Hooker, who thought ecclesiastical superiorities, like civil, subject to variation; or of Stillingfleet, who had lately pointed out the impossibility of ascertaining beyond doubtful conjecture the real constitution of the apostolical church, from the scanty, inconclusive testimonies that either Scripture or antiquity furnish. It was therefore enacted in the statute for uniformity, that no person should hold any preferment in England, without having received episcopal ordination. There seems to be little or no objection to this provision, if ordination be considered as a ceremony of admission into a particular society; but, according to the theories which both parties had embraced in that age, it conferred a sort of mysterious indelible character, which rendered its repetition improper.[590] _Ejection of nonconformist clergy._--The new act of uniformity succeeded to the utmost wishes of its promoters. It provided that every minister should, before the feast of St. Bartholomew, 1662, publicly declare his assent and consent to everything contained in the book of common prayer, on pain of being _ipso facto_ deprived of his benefice.[591] Though even the long parliament had reserved a fifth of the profits to those who were ejected for refusing the covenant, no mercy could be obtained from the still greater bigotry of the present; and a motion to make that allowance to nonconforming ministers was lost by 94 to 87.[592] The Lords had shown a more temperate spirit, and made several alterations of a conciliating nature. They objected to extending the subscription required by the act to schoolmasters. But the Commons urged in a conference the force of education, which made it necessary to take care for the youth. The upper house even inserted a proviso, allowing the king to dispense with the surplice and the sign of the cross; but the Commons resolutely withstanding this and every other alteration, they were all given up.[593] Yet next year, when it was found necessary to pass an act for the relief of those who had been prevented involuntarily from subscribing the declaration in due time, a clause was introduced, declaring that the assent and consent to the book of common prayer required by the said act should be understood only as to practice and obedience, and not otherwise. The Duke of York and twelve lay peers protested against this clause, as destructive to the church of England as now established; and the Commons vehemently objecting to it, the partisans of moderate councils gave way as before.[594] When the day of St. Bartholomew came, about 2000 persons resigned their preferments rather than stain their consciences by compliance--an act to which the more liberal Anglicans, after the bitterness of immediate passions had passed away, have accorded that praise which is due to heroic virtue in an enemy. It may justly be said that the episcopal clergy had set an example of similar magnanimity in refusing to take the covenant. Yet, as that was partly of a political nature, and those who were ejected for not taking it might hope to be restored through the success of the king's arms, I do not know that it was altogether so eminent an act of self-devotion as the presbyterian clergy displayed on St. Bartholomew's day. Both of them afford striking contrasts to the pliancy of the English church in the greater question of the preceding century, and bear witness to a remarkable integrity and consistency of principle.[595] No one who has any sense of honesty and plain dealing can pretend that Charles did not violate the spirit of his declarations, both that from Breda, and that which he published in October 1660. It is idle to say that those declarations were subject to the decision of parliament, as if the Crown had no sort of influence in that assembly, nor even any means of making its inclinations known. He had urged them to confirm the act of indemnity, wherein he thought his honour and security concerned: was it less easy to obtain, or at least to ask for, their concurrence in a comprehension or toleration of the presbyterian clergy? Yet, after mocking those persons with pretended favour, and even offering bishoprics to some of their number, by way of purchasing their defection, the king made no effort to mitigate the provisions of the act of uniformity; and Clarendon strenuously supported them through both houses of parliament.[596] This behaviour in the minister sprung from real bigotry and dislike of the presbyterians; but Charles was influenced by a very different motive, which had become the secret spring of all his policy. This requires to be fully explained. _Hopes of the catholics._--Charles, during his misfortunes, had made repeated promises to the pope and the great catholic princes of relaxing the penal laws against his subjects of that religion--promises which he well knew to be the necessary condition of their assistance. And, though he never received any succour which could demand the performance of these assurances, his desire to stand well with France and Spain, as well as a sense of what was really due to the English catholics, would have disposed him to grant every indulgence which the temper of his people should permit. The laws were highly severe, in some cases sanguinary; they were enacted in very different times, from plausible motives of distrust, which it would be now both absurd and ungrateful to retain. The catholics had been the most strenuous of the late king's adherents, the greatest sufferers for their loyalty. Out of about 500 gentlemen who lost their lives in the royal cause, one-third, it has been said, were of that religion.[597] Their estates had been selected for confiscation, when others had been admitted to compound. It is however certain that after the conclusion of the war, and especially during the usurpation of Cromwell, they declined in general to provoke a government which showed a good deal of connivance towards their religion by keeping up any connection with the exiled family.[598] They had, as was surely very natural, one paramount object in their political conduct, the enjoyment of religious liberty; whatever debt of gratitude they might have owed to Charles I. had been amply paid; and perhaps they might reflect that he had never scrupled, in his various negotiations with the parliament, to acquiesce in any prescriptive measures suggested against popery. This apparent abandonment however of the royal interests excited the displeasure of Clarendon, which was increased by a tendency some of the catholics showed to unite with Lambert, who was understood to be privately of their religion, and by an intrigue carried on in 1659, by the machinations of Buckingham with some priests, to set up the Duke of York for the Crown. But the king retained no resentment of the general conduct of this party; and was desirous to give them a testimony of his confidence, by mitigating the penal laws against their religion. Some steps were taken towards this by the House of Lords in the session of 1661; and there seems little doubt that the statutes at least inflicting capital punishment would have been repealed without difficulty, if the catholics had not lost the favourable moment by some disunion among themselves, which the never-ceasing intrigues of the Jesuits contrived to produce.[599] There can be no sort of doubt that the king's natural facility, and exemption from all prejudice in favour of established laws, would have led him to afford every indulgence that could be demanded to his catholic subjects, many of whom were his companions or his counsellors, without any propensity towards their religion. But it is morally certain that, during the period of his banishment, he had imbibed, as deeply and seriously as the character of his mind would permit, a persuasion that, if any scheme of Christianity were true, it could only be found in the bosom of an infallible church; though he was never reconciled, according to the formal profession which she exacts, till the last hours of his life. The secret however of his inclinations, though disguised to the world by the appearance, and probably sometimes more than the appearance, of carelessness and infidelity, could not be wholly concealed from his court. It appears the most natural mode of accounting for the sudden conversion of the Earl of Bristol to popery, which is generally agreed to have been insincere. An ambitious intriguer, holding the post of secretary of state, would not have ventured such a step without some grounds of confidence in his master's wishes; though his characteristic precipitancy hurried him forward to destroy his own hopes. Nor are there wanting proofs that the protestantism of both the brothers was greatly suspected in England before the restoration.[600] These suspicions acquired strength after the king's return, through his manifest intention not to marry a protestant; and still more through the presumptuous demeanour of the opposite party, which seemed to indicate some surer grounds of confidence than were yet manifest. The new parliament in its first session had made it penal to say that the king was a papist or popishly affected; whence the prevalence of that scandal may be inferred.[601] _Resisted by Clarendon and the parliament._--Charles had no assistance to expect, in his scheme of granting a full toleration to the Roman faith, from his chief adviser Clarendon. A repeal of the sanguinary laws, a reasonable connivance, perhaps in some cases a dispensation--to these favours he would have acceded. But, in his creed of policy, the legal allowance of any but the established religion was inconsistent with public order, and with the king's ecclesiastical prerogative. This was also a fixed principle with the parliament, whose implacable resentment towards the sectaries had not inclined them to abate in the least of their abhorrence and apprehension of popery. The church of England, distinctly and exclusively, was their rallying-point; the Crown itself stood only second in their affections. The king therefore had recourse to a more subtle and indirect policy. If the terms of conformity had been so far relaxed as to suffer the continuance of the presbyterian clergy in their benefices, there was every reason to expect from their known disposition a determined hostility to all approaches towards popery, and even to its toleration. It was therefore the policy of those who had the interests of that cause at heart, to permit no deviation from the act of uniformity, to resist all endeavours at a comprehension of dissenters within the pale of the church, and to make them look up to the king for indulgence in their separate way of worship. They were to be taught that, amenable to the same laws as the Romanists, exposed to the oppression of the same enemies, they must act in concert for a common benefit.[602] The presbyterian ministers, disheartened at the violence of the parliament, had recourse to Charles, whose affability and fair promises they were loth to distrust; and implored his dispensation for their nonconformity. The king, naturally irresolute, and doubtless sensible that he had made a bad return to those who had contributed so much towards his restoration, was induced, at the strong solicitation of Lord Manchester, to promise that he would issue a declaration suspending the execution of the statute for three months. Clarendon, though he had been averse to some of the rigorous clauses inserted in the act of uniformity, was of opinion that, once passed, it ought to be enforced without any connivance; and told the king likewise that it was not in his power to preserve those who did not comply with it from deprivation. Yet, as the king's word had been given, he advised him rather to issue such a declaration than to break his promise. But, the bishops vehemently remonstrating against it, and intimating that they would not be parties to a violation of the law, by refusing to institute a clerk presented by the patron on an avoidance for want of conformity in the incumbent, the king gave way, and resolved to make no kind of concession. It is remarkable that the noble historian does not seem struck at the enormous and unconstitutional prerogative which a proclamation suspending the statute would have assumed.[603] _Declaration for indulgence._--Instead of this very objectionable measure, the king adopted one less arbitrary, and more consonant to his own secret policy. He published a declaration in favour of liberty of conscience, for which no provision had been made, so as to redeem the promises he had held forth at his accession. Adverting to these, he declared that, "as in the first place he had been zealous to settle the uniformity of the church of England in discipline, ceremony, and government, and should ever constantly maintain it; so as for what concerns the penalties upon those who, living peaceably, do not conform themselves thereto, he should make it his special care, so far as in him lay, without invading the freedom of parliament, to incline their wisdom next approaching sessions to concur with him in making some such act for that purpose as may enable him to exercise with a more universal satisfaction that power of dispensing, which he conceived to be inherent in him."[604] The aim of this declaration was to obtain from parliament a mitigation at least of all penal statutes in matters of religion, but more to serve the interests of catholic than of protestant nonconformity.[605] Except however the allusion to the dispensing power, which yet is very moderately alleged, there was nothing in it, according to our present opinions, that should have created offence. But the Commons, on their meeting in February 1663, presented an address, denying that any obligation lay on the king by virtue of his declaration from Breda, which must be understood to depend on the advice of parliament, and slightly intimating that he possessed no such dispensing prerogative as was suggested. They strongly objected to the whole scheme of indulgence, as the means of increasing sectaries, and rather likely to occasion disturbance than to promote peace.[606] They remonstrated, in another address, against the release of Calamy, an eminent dissenter, who, having been imprisoned for transgressing the act of uniformity, was irregularly set at liberty by the king's personal order.[607] The king, undeceived as to the disposition of this loyal assembly to concur in his projects of religious liberty, was driven to more tedious and indirect courses in order to compass his end. He had the mortification of finding that the House of Commons had imbibed, partly perhaps in consequence of this declaration, that jealous apprehension of popery, which had caused so much of his father's ill fortune. On this topic the watchfulness of an English parliament could never be long at rest. The notorious insolence of the Romish priests, who, proud of the court's favour, disdained to respect the laws enough to disguise themselves, provoked an address to the king, that they might be sent out of the kingdom; and bills were brought in to prevent the further growth of popery.[608] Meanwhile, the same remedy, so infallible in the eyes of legislators, was not forgotten to be applied to the opposite disease of protestant dissent. Some had believed, of whom Clarendon seems to have been, that all scruples of tender conscience in the presbyterian clergy being faction and hypocrisy, they would submit very quietly to the law, when they found all their clamour unavailing to obtain a dispensation from it. The resignation of 2000 beneficed ministers at once, instead of extorting praise, rather inflamed the resentment of their bigoted enemies; especially when they perceived that a public and perpetual toleration of separate worship was favoured by part of the court. _Act against conventicles._--Rumours of conspiracy and insurrection, sometimes false, but gaining credit from the notorious discontent both of the old commonwealth's party, and of many who had never been on that side, were sedulously propagated, in order to keep up the animosity of parliament against the ejected clergy;[609] and these are recited as the pretext of an act passed in 1664 for suppressing seditious conventicles (the epithet being in this place wantonly and unjustly insulting), which inflicted on all persons above the age of sixteen, present at any religious meeting in other manner than is allowed by the practice of the church of England, where five or more persons besides the household should be present, a penalty of three months' imprisonment for the first offence, of six for the second, and of seven years' transportation for the third, on conviction before a single justice of peace.[610] This act, says Clarendon, if it had been vigorously executed, would no doubt have produced a thorough reformation.[611] Such is ever the language of the supporters of tyranny; when oppression does not succeed, it is because there has been too little of it. But those who suffered under this statute report very differently as to its vigorous execution. The gaols were filled, not only with ministers who had borne the brunt of former persecutions, but with the laity who attended them; and the hardship was the more grievous, that the act being ambiguously worded, its construction was left to a single magistrate, generally very adverse to the accused. It is the natural consequence of restrictive laws to aggravate the disaffection which has served as their pretext; and thus to create a necessity for a legislature that will not retrace its steps, to pass still onward in the course of severity. In the next session accordingly held at Oxford in 1665, on account of the plague that ravaged the capital, we find a new and more inevitable blow aimed at the fallen church of Calvin. It was enacted that all persons in holy orders who had not subscribed the act of uniformity, should swear that it is not lawful, upon any pretence whatsoever, to take arms against the king; and that they did abhor that traitorous position of taking arms by his authority against his person, or against those that are commissioned by him, and would not at any time endeavour any alteration of government in church or state. Those who refused this oath were not only made incapable of teaching in schools, but prohibited from coming within five miles of any city, corporate town, or borough sending members to parliament.[612] This infamous statute did not pass without the opposition of the Earl of Southampton, lord treasurer, and other peers. But Archbishop Sheldon, and several bishops, strongly supported the bill, which had undoubtedly the sanction also of Clarendon's authority.[613] In the Commons, I do not find that any division took place; but an unsuccessful attempt was made to insert the word "legally" before commissioned; the lawyers, however, declared that this word must be understood.[614] Some of the nonconforming clergy took the oath upon this construction. But the far greater number refused. Even if they could have borne the solemn assertion of the principles of passive obedience in all possible cases, their scrupulous consciences revolted from a pledge to endeavour no kind of alteration in church and state; an engagement, in its extended sense, irreconcilable with their own principles in religion, and with the civil duties of Englishmen. Yet to quit the towns where they had long been connected, and where alone they had friends and disciples, for a residence in country villages, was an exclusion from the ordinary means of subsistence. The church of England had doubtless her provocations; but she made the retaliation much more than commensurate to the injury. No severity, comparable to this cold-blooded persecution, had been inflicted by the late powers, even in the ferment and fury of a civil war. Encouraged by this easy triumph, the violent party in the House of Commons thought it a good opportunity to give the same test a more sweeping application. A bill was brought in imposing this oath upon the whole nation; that is, I presume (for I do not know that its precise nature is anywhere explained), on all persons in any public or municipal trust. This however was lost on a division by a small majority.[615] It has been remarked that there is no other instance in history, where men have suffered persecution on account of differences, which were admitted by those who inflicted it to be of such small moment. But, supposing this to be true, it only proves, what may perhaps be alleged as a sort of extenuation of these severe laws against nonconformists, that they were merely political, and did not spring from any theological bigotry. Sheldon indeed, their great promoter, was so free from an intolerant zeal that he is represented as a man who considered religion chiefly as an engine of policy. The principles of religious toleration had already gained considerable ground over mere bigotry; but were still obnoxious to the arbitrary temper of some politicians, and wanted perhaps experimental proof of their safety to recommend them to the caution of others. There can be no doubt that all laws against dissent and separation from an established church, those even of the inquisition, have proceeded in a greater or less degree from political motives; and these appear to me far less odious than the disinterested rancour of superstition. The latter is very common among the populace, and sometimes among the clergy. Thus the presbyterians exclaimed against the toleration of popery, not as dangerous to the protestant establishment, but as a sinful compromise with idolatry; language which, after the first heat of the reformation had abated, was never so current in the Anglican church.[616] In the case of these statutes against nonconformists under Charles II., revenge and fear seem to have been the unmixed passions that excited the church party against those, whose former superiority they remembered, and whose disaffection and hostility it was impossible to doubt.[617] _Dissatisfaction increases._--A joy so excessive and indiscriminating had accompanied the king's restoration, that no prudence or virtue in his government could have averted that reaction of popular sentiment, which inevitably follows the disappointment of unreasonable hope. Those who lay their account upon blessings, which no course of political administration can bestow, live, according to the poet's comparison, like the sick man, perpetually changing posture in search of the rest which nature denies; the dupes of successive revolutions, sanguine as children with the novelties of politics, a new constitution, a new sovereign, a new minister, and as angry with the playthings when they fall short of their desires. What then was the discontent that must have ensued upon the restoration of Charles II.? The neglected cavalier, the persecuted presbyterian, the disbanded officer, had each his grievance; and felt that he was either in a worse situation than he had formerly been, or at least than he had expected to be. Though there were not the violent acts of military power which had struck every man's eyes under Cromwell, it cannot be said that personal liberty was secure, or that the magistrates had not considerable power of oppression, and that pretty unsparingly exercised towards those suspected of disaffection. The religious persecution was not only far more severe than it was ever during the commonwealth, but perhaps more extensively felt than under Charles I. Though the monthly assessments for the support of the army ceased soon after the restoration, several large grants were made by parliament, especially during the Dutch war; and it appears, that in the first seven years of Charles II. the nation paid a greater sum in taxes than in any preceding period of the same duration. If then the people compared the national fruits of their expenditure, what a contrast they found, how deplorable a falling off in public honour and dignity since the days of the magnanimous usurper![618] They saw with indignation, that Dunkirk, acquired by Cromwell, had been chaffered away by Charles (a transaction justifiable perhaps on the mere balance of profit and loss, but certainly derogatory to the pride of a great nation); that a war, needlessly commenced, had been carried on with much display of bravery in our seamen and their commanders, but no sort of good conduct in the government; and that a petty northern potentate, who would have trembled at the name of the commonwealth, had broken his faith towards us out of mere contempt of our inefficiency. _Private life of the king._--These discontents were heightened by the private conduct of Charles, if the life of a king can in any sense be private, by a dissoluteness and contempt of moral opinion, which a nation, still in the main grave and religious, could not endure. The austere character of the last king had repressed to a considerable degree the common vices of a court which had gone to a scandalous excess under James. But the cavaliers in general affected a profligacy of manners, as their distinction from the fanatical party, which gained ground among those who followed the king's fortunes in exile, and became more flagrant after the restoration. Anecdotes of court excesses, which required not the aid of exaggeration, were in daily circulation through the coffee-houses; those who cared least about the vice, not failing to inveigh against the scandal. It is in the nature of a limited monarchy that men should censure very freely the private likes of their princes, as being more exempt from that immoral servility which blinds itself to the distinctions of right and wrong in elevated rank. And as a voluptuous court will always appear prodigal, because all expense in vice is needless, they had the mortification of believing that the public revenues were wasted on the vilest associates of the king's debauchery. We are however much indebted to the memory of Barbara, Duchess of Cleveland, Louisa, Duchess of Portsmouth, and Mrs. Eleanor Gwyn. We owe a tribute of gratitude to the Mays, the Killigrews, the Chiffinches, and the Grammonts. They played a serviceable part in ridding the kingdom of its besotted loyalty. They saved our forefathers from the star-chamber, and the high-commission court; they laboured in their vocation against standing armies and corruption; they pressed forward the great ultimate security of English freedom, the expulsion of the house of Stuart.[619] _Opposition in parliament._--Among the ardent loyalists who formed the bulk of the present parliament, a certain number of a different class had been returned, not sufficient of themselves to constitute a very effective minority, but of considerable importance as a nucleus, round which the lesser factions that circumstances should produce, might be gathered. Long sessions, and a long continuance of the same parliament, have an inevitable tendency to generate a systematic opposition to the measures of the Crown, which it requires all vigilance and management to hinder from becoming too powerful. The sense of personal importance, the desire of occupation in business (a very characteristic propensity of the English gentry), the various inducements of private passion and interest, bring forward so many active spirits, that it was, even in that age, as reasonable to expect that the ocean should always be tranquil, as that a House of Commons should continue long to do the king's bidding, with any kind of unanimity or submission. Nothing can more demonstrate the incompatibility of the tory scheme, which would place the virtual and effective, as well as nominal, administration of the executive government in the sole hands of the Crown, with the existence of a representative assembly, than the history of this long parliament of Charles II. None has ever been elected in circumstances so favourable for the Crown, none ever brought with it such high notions of prerogative; yet in this assembly a party soon grew up, and gained strength in every successive year, which the king could neither direct nor subdue. The methods of bribery, to which the court had largely recourse, though they certainly diverted some of the measures, and destroyed the character, of this opposition, proved in the end like those dangerous medicines which palliate the instant symptoms of a disease that they aggravate. The leaders of this parliament were, in general, very corrupt men; but they knew better than to quit the power which made them worth purchase. Thus the House of Commons matured and extended those rights of enquiring into and controlling the management of public affairs, which had caused so much dispute in former times; and, as the exercise of these functions became more habitual, and passed with little or no open resistance from the Crown, the people learned to reckon them unquestionable or even fundamental; and were prepared for that more perfect settlement of the constitution on a more republican basis, which took place after the revolution. The reign of Charles II., though displaying some stretches of arbitrary power, and threatening a great deal more, was, in fact, the transitional state between the ancient and modern schemes of the English constitution; between that course of government where the executive power, so far as executive, was very little bounded except by the laws, and that where it can only be carried on, even within its own province, by the consent and co-operation, in a great measure, of the parliament. _Appropriation of supplies._--The Commons took advantage of the pressure which the war with Holland brought on the administration, to establish two very important principles on the basis of their sole right of taxation. The first of these was the appropriation of supplies to limited purposes. This indeed was so far from an absolute novelty, that it found precedents in the reigns of Richard II. and Henry IV.; a period when the authority of the House of Commons was at a very high pitch. No subsequent instance, I believe, was on record till the year 1624, when the last parliament of James I., at the king's own suggestion, directed their supply for the relief of the Palatinate to be paid into the hands of commissioners named by themselves. There were cases of a similar nature in the year 1641, which, though of course they could no longer be upheld as precedents, had accustomed the house to the idea that they had something more to do than simply to grant money, without any security or provision for its application. In the session of 1665, accordingly, an enormous supply, as it then appeared, of £1,250,000, after one of double that amount in the preceding year, having been voted for the Dutch war, Sir George Downing, one of the tellers of the exchequer, introduced into the subsidy bill a proviso, that the money raised by virtue of that act should be applicable only to the purposes of the war.[620] Clarendon inveighed with fury against this, as an innovation derogatory to the honour of the Crown; but the king himself, having listened to some who persuaded him that the money would be advanced more easily upon this better security for speedy repayment, insisted that it should not be thrown out.[621] That supplies, granted by parliament, are only to be expended for particular objects specified by itself, became, from this time, an undisputed principle, recognised by frequent and at length constant practice. It drew with it the necessity of estimates regularly laid before the House of Commons; and, by exposing the management of the public revenues, has given to parliament, not only a real and effective control over an essential branch of the executive administration, but, in some measure, rendered them partakers in it.[622] _Commission of public accounts._--It was a consequence of this right of appropriation, that the House of Commons should be able to satisfy itself as to the expenditure of their monies in the services for which they were voted. But they might claim a more extensive function, as naturally derived from their power of opening and closing the public purse, that of investigating the wisdom, faithfulness, and economy with which their grants had been expended. For this too there was some show of precedents in the ancient days of Henry IV.; but what undoubtedly had most influence was the recollection, that during the late civil war, and in the times of the commonwealth, the house had superintended, through its committees, the whole receipts and issues of the national treasury. This had not been much practised since the restoration. But in the year 1666, the large cost and indifferent success of the Dutch war begetting vehement suspicions, not only of profuseness but of diversion of the public money from its proper purposes, the house appointed a committee to inspect the accounts of the officers of the navy, ordnance, and stores, which were laid before them, as it appears, by the king's direction. This committee after some time, having been probably found deficient in powers, and particularly being incompetent to administer an oath, the house determined to proceed in a more novel and vigorous manner; and sent up a bill, nominating commissioners to inspect the public accounts, who were to possess full powers of enquiry, and to report with respect to such persons as they should find to have broken their trust. The immediate object of this enquiry, so far as appears from Lord Clarendon's mention of it, was rather to discover whether the treasurers had not issued money without legal warrant than to enter upon the details of its expenditure. But that minister, bigoted to his Tory creed of prerogative, thought it the highest presumption for a parliament to intermeddle with the course of government. He spoke of this bill as an encroachment and usurpation that had no limits, and pressed the king to be firm in his resolution never to consent to it.[623] Nor was the king less averse to a parliamentary commission of this nature, as well from a jealousy of its interference with his prerogative, as from a consciousness which Clarendon himself suggests, that great sums had been issued by his orders, which could not be put in any public account; that is (for we can give no other interpretation), that the monies granted for the war, and appropriated by statute to that service, had been diverted to supply his wasteful and debauched course of pleasures.[624] It was the suspicion, or rather private knowledge of this criminal breach of trust, which had led to the bill in question. But such a slave was Clarendon to his narrow prepossessions, that he would rather see the dissolute excesses which he abhorred suck nourishment from that revenue which had been allotted to maintain the national honour and interests, and which, by its deficiencies thus aggravated, had caused even in this very year the navy to be laid up, and the coasts to be left defenceless, than suffer them to be restrained by the only power to which thoughtless luxury would submit. He opposed the bill therefore in the House of Lords, as he confesses, with much of that intemperate warmth which distinguished him, and with a contempt of the lower house and its authority, as imprudent in respect to his own interests as it was unbecoming and unconstitutional. The king prorogued parliament while the measure was depending; but in hopes to pacify the House of Commons, promised to issue a commission under the great seal for the examination of public accountants;[625] an expedient which was not likely to bring more to light than suited his purpose. But it does not appear that this royal commission, though actually prepared and sealed, was ever carried into effect; for in the ensuing session, the great minister's downfall having occurred in the meantime, the House of Commons brought forward again their bill, which passed into a law. It invested the commissioners therein nominated with very extensive and extraordinary powers, both as to auditing public accounts, and investigating the frauds that had taken place in the expenditure of money, and employment of stores. They were to examine upon oath, to summon inquests if they thought fit, to commit persons disobeying their orders to prison without bail, to determine finally on the charge and discharge of all accountants; the barons of the exchequer, upon a certificate of their judgment, were to issue process for recovering money to the king's use, as if there had been an immediate judgment of their own court. Reports were to be made of the commissioners' proceedings from time to time to the king and to both houses of parliament. None of the commissioners were members of either house. The king, as may be supposed, gave way very reluctantly to this interference with his expenses. It brought to light a great deal of abuse and misapplication of the public revenues, and contributed doubtless in no small degree to destroy the house's confidence in the integrity of government, and to promote a more jealous watchfulness of the king's designs.[626] At the next meeting of parliament, in October 1669, Sir George Carteret, treasurer of the navy, was expelled the house for issuing money without legal warrant. _Decline of Clarendon's power._--Sir Edward Hyde, whose influence had been almost annihilated in the last years of Charles I. through the inveterate hatred of the queen and those who surrounded her, acquired by degrees the entire confidence of the young king, and baffled all the intrigues of his enemies. Guided by him, in all serious matters, during the latter years of his exile, Charles followed his counsels almost implicitly in the difficult crisis of the restoration. The office of chancellor and the title of Earl of Clarendon were the proofs of the king's favour; but in effect, through the indolence and ill-health of Southampton, as well as their mutual friendship, he was the real minister of the Crown.[627] By the clandestine marriage of his daughter with the Duke of York, he changed one brother from an enemy to a sincere and zealous friend, without forfeiting the esteem and favour of the other. And, though he was wise enough to dread the invidiousness of such an elevation, yet for several years it by no means seemed to render his influence less secure.[628] Both in their characters, however, and turn of thinking, there was so little conformity between Clarendon and his master, that the continuance of his ascendancy can only be attributed to the power of early habit over the most thoughtless tempers. But it rarely happens that kings do not ultimately shake off these fetters, and release themselves from the sort of subjection which they feel in acting always by the same advisers. Charles, acute himself and cool-headed, could not fail to discover the passions and prejudices of his minister, even if he had wanted the suggestion of others who, without reasoning on such broad principles as Clarendon, were perhaps his superiors in judging of temporary business. He wished too, as is common, to depreciate a wisdom, and to suspect a virtue, which seemed to reproach his own vice and folly. Nor had Clarendon spared those remonstrances against the king's course of life, which are seldom borne without impatience or resentment. He was strongly suspected by the king as well as his courtiers (though, according to his own account, without any reason) of having promoted the marriage of Miss Stewart with the Duke of Richmond.[629] But above all he stood in the way of projects, which, though still probably unsettled, were floating in the king's mind. No one was more zealous to uphold the prerogative at a height where it must overtop and chill with its shadow the privileges of the people. No one was more vigilant to limit the functions of parliament, or more desirous to see them confiding and submissive. But there were landmarks which he could never be brought to transgress. He would prepare the road for absolute monarchy, but not introduce it; he would assist to batter down the walls, but not to march into the town. His notions of what the English constitution ought to be, appear evidently to have been derived from the times of Elizabeth and James I., to which he frequently refers with approbation. In the history of that age, he found much that could not be reconciled to any liberal principles of government. But there were two things which he certainly did not find; a revenue capable of meeting an extraordinary demand without parliamentary supply, and a standing army. Hence he took no pains, if he did not even, as is asserted by Burnet, discourage the proposal of others, to obtain such a fixed annual revenue for the king on the restoration, as would have rendered it very rarely necessary to have recourse to parliament,[630] and did not advise the keeping up any part of the army. That a few troops were retained, was owing to the Duke of York. Nor did he go the length that was expected in procuring the repeal of all the laws that had been enacted in the long parliament.[631] These omissions sank deep in Charles's heart, especially when he found that he had to deal with an unmanageable House of Commons, and must fight the battle for arbitrary power; which might have been achieved, he thought, without a struggle by his minister. There was still less hope of obtaining any concurrence from Clarendon in the king's designs as to religion. Though he does not once hint at it in his writings, there can be little doubt that he must have suspected his master's inclinations towards the church of Rome. The Duke of York considered this as the most likely cause of his remissness in not sufficiently advancing the prerogative.[632] He was always opposed to the various schemes of a general indulgence towards popery, not only from his strongly protestant principles and his dislike of all toleration, but from a prejudice against the body of the English catholics, whom he thought to arrogate more on the ground of merit than they could claim. That interest, so powerful at court, was decidedly hostile to the chancellor; for the Duke of York, who strictly adhered to him, if he had not kept his change of religion wholly secret, does not at least seem to have hitherto formed any avowed connection with the popish party.[633] _Loss of the king's favour_--_Coalition against Clarendon_.--This estrangement of the king's favour is sufficient to account for Clarendon's loss of power; but his entire ruin was rather accomplished by a strange coalition of enemies, which his virtues, or his errors and infirmities, had brought into union. The cavaliers hated him on account of the act of indemnity, and the presbyterians for that of uniformity. Yet the latter were not in general so eager in his prosecution as the others.[634] But he owed great part of the severity with which he was treated to his own pride and ungovernable passionateness, by which he had rendered very eminent men in the House of Commons implacable, and to the language he had used as to the dignity and privileges of the house itself.[635] A sense of this eminent person's great talents as well as general integrity and conscientiousness on the one hand, an indignation at the king's ingratitude, and the profligate counsels of those who supplanted him, on the other, have led most writers to overlook his faults in administration, and to treat all the articles of accusation against him as frivolous or unsupported. It is doubtless impossible to justify the charge of high treason, on which he was impeached; but there are matters that never were or could be disproved; and our own knowledge enables us to add such grave accusations as must show Clarendon's unfitness for the government of a free country.[636] 1. _Illegal imprisonments._--It is the fourth article of his impeachment, that he "had advised and procured divers of his majesty's subjects to be imprisoned against law, in remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law, and to produce precedents for the imprisoning any other of his majesty's subjects in like manner." This was undoubtedly true. There was some ground for apprehension on the part of the government from those bold spirits who had been accustomed to revolutions, and drew encouragement from the vices of the court and the embarrassments of the nation. Ludlow and Algernon Sidney, about the year 1665, had projected an insurrection, the latter soliciting Louis XIV. and the pensionary of Holland for aid.[637] Many officers of the old army, Wildman, Creed, and others, suspected, perhaps justly, of such conspiracies, had been illegally detained in prison for several years, and only recovered their liberty on Clarendon's dismissal.[638] He had too much encouraged the hateful race of informers, though he admits that it had grown a trade by which men got money, and that many were committed on slight grounds.[639] Thus Colonel Hutchinson died in the close confinement of a remote prison, far more probably on account of his share in the death of Charles I., from which the act of indemnity had discharged him, than any just pretext of treason.[640] It was difficult to obtain a habeas corpus from some of the judges in this reign. But to elude that provision by removing men out of the kingdom, was such an offence against the constitution as may be thought enough to justify the impeachment of any minister. 2. The first article, and certainly the most momentous, asserts, "That the Earl of Clarendon hath designed a standing army to be raised, and to govern the kingdom thereby, and advised the king to dissolve this present parliament, to lay aside all thoughts of parliaments for the future, to govern by a military power, and to maintain the same by free quarter and contribution." This was prodigiously exaggerated; yet there was some foundation for a part of it. In the disastrous summer of 1667, when the Dutch fleet had insulted our coasts, and burned our ships in the Medway, the exchequer being empty, it was proposed in council to call together immediately the parliament, which then stood prorogued to a day at the distance of some months. Clarendon, who feared the hostility of the House of Commons towards himself, and had pressed the king to dissolve it, maintained that they could not legally be summoned before the day fixed; and, with a strange inconsistency, attaching more importance to the formalities of law than to its essence, advised that the counties where the troops were quartered should be called upon to send in provisions, and those where there were no troops to contribute money, which should be abated out of the next taxes. And he admits that he might have used the expression of raising contributions, as in the late civil war. This unguarded and unwarrantable language, thrown out at the council-table where some of his enemies were sitting, soon reached the ears of the Commons, and, mingled up with the usual misrepresentations of faction, was magnified into a charge of high treason.[641] 3. _Sale of Dunkirk._--The eleventh article charged Lord Clarendon with having advised and effected the sale of Dunkirk to the French king, being part of his majesty's dominions, for no greater value than the ammunition, artillery, and stores were worth. The latter part is generally asserted to be false. The sum received is deemed the utmost that Louis would have given, who thought he had made a hard bargain. But it is very difficult to reconcile what Clarendon asserts in his defence, and much more at length in his Life (that the business of Dunkirk was entirely decided before he had anything to do in it, by the advice of Albemarle and Sandwich), with the letters of d'Estrades, the negotiator in this transaction on the part of France. In these letters, written at the time to Louis XIV., Clarendon certainly appears not only as the person chiefly concerned, but as representing himself almost the only one of the council favourable to the measure, and having to overcome the decided repugnance of Southampton, Sandwich, and Albemarle.[642] I cannot indeed see any other explanation than that he magnified the obstacles in the way of this treaty, in order to obtain better terms; a management, not very unusual in diplomatical dealing, but, in the degree at least to which he carried it, scarcely reconcilable with the good faith we should expect from this minister. For the transaction itself, we can hardly deem it honourable or politic. The expense of keeping up Dunkirk, though not trifling, would have been willingly defrayed by parliament; and could not well be pleaded by a government which had just encumbered itself with the useless burthen of Tangier. That its possession was of no great direct value to England must be confessed; but it was another question whether it ought to have been surrendered into the hands of France. 4. This close connection with France is indeed a great reproach to Clarendon's policy, and was the spring of mischiefs to which he contributed, and which he ought to have foreseen. What were the motives of these strong professions of attachment to the interests of Louis XIV. which he makes in some of his letters, it is difficult to say, since he had undoubtedly an ancient prejudice against that nation and its government. I should incline to conjecture that his knowledge of the king's unsoundness in religion led him to keep at a distance from the court of Spain, as being far more zealous in its popery, and more connected with the Jesuit faction, than that of France; and this possibly influenced him also with respect to the Portuguese match, wherein, though not the first adviser, he certainly took much interest; an alliance as little judicious in the outset, as it proved eventually fortunate.[643] But the capital misdemeanour that he committed in this relation with France was the clandestine solicitation of pecuniary aid for the king. He first taught a lavish prince to seek the wages of dependence in a foreign power, to elude the control of parliament by the help of French money.[644] The purpose for which this aid was asked, the succour of Portugal, might be fair and laudable; but the precedent was most base, dangerous, and abominable. A king who had once tasted the sweets of dishonest and clandestine lucre would, in the words of the poet, be no more capable afterwards of abstaining from it, than a dog from his greasy offal. _Clarendon's faults as a minister._--These are the errors of Clarendon's political life; which, besides his notorious concurrence in all measures of severity and restraint towards the nonconformists, tend to diminish our respect from his memory, and to exclude his name from that list of great and wise ministers, where some are willing to place him near the head. If I may seem to my readers less favourable to so eminent a person than common history might warrant, it is at least to be said that I have formed my decision from his own recorded sentiments, or from equally undisputable sources of authority. The publication of his life, that is, of the history of his administration, has not contributed to his honour. We find in it little or nothing of that attachment to the constitution for which he had acquired credit, and some things which we must struggle hard to reconcile with his veracity, even if the suppression of truth is not to be reckoned an impeachment of it in an historian.[645] But the manifest profligacy of those who contributed most to his ruin, and the measures which the court took soon afterwards, have rendered his administration comparatively honourable, and attached veneration to his memory. We are unwilling to believe that there was anything to censure in a minister, whom Buckingham persecuted, and against whom Arlington intrigued.[646] A distinguished characteristic of Clarendon had been his firmness, called indeed by most pride and obstinacy, which no circumstances, no perils, seemed likely to bend. But his spirit sunk all at once with his fortune. Clinging too long to office, and cheating himself against all probability with a hope of his master's kindness when he had lost his confidence, he abandoned that dignified philosophy which ennobles a voluntary retirement, that stern courage which innocence ought to inspire; and hearkening to the king's treacherous counsels, fled before his enemies into a foreign country. Though the impeachment, at least in the point of high treason, cannot be defended, it is impossible to deny that the act of banishment, under the circumstances of his flight, was capable, in the main, of full justification. In an ordinary criminal suit, a process of outlawry goes against the accused who flies from justice; and his neglect to appear within a given time is equivalent, in cases of treason or felony, to a conviction of the offence; can it be complained of, that a minister of state, who dares not confront a parliamentary impeachment, should be visited with an analogous penalty? But, whatever injustice and violence may be found in this prosecution, it established for ever the right of impeachment, which the discredit into which the long parliament had fallen exposed to some hazard; the strong abettors of prerogative, such as Clarendon himself, being inclined to dispute this responsibility of the king's advisers to parliament. The Commons had, in the preceding session, sent up an impeachment against Lord Mordaunt, upon charges of so little public moment, that they may be suspected of having chiefly had in view the assertion of this important privilege.[647] It was never called in question from this time; and indeed they took care during the remainder of this reign, that it should not again be endangered by a paucity of precedents.[648] _Cabal ministry._--The period between the fall of Clarendon in 1667, and the commencement of Lord Danby's administration in 1673, is generally reckoned one of the most disgraceful in the annals of our monarchy. This was the age of what is usually denominated the Cabal administration, from the five initial letters of Sir Thomas Clifford, first commissioner of the treasury, afterwards Lord Clifford and high treasurer, the Earl of Arlington, secretary of state, the Duke of Buckingham, Lord Ashley, chancellor of the exchequer, afterwards Earl of Shaftesbury and lord chancellor, and lastly, the Duke of Lauderdale. Yet, though the counsels of these persons soon became extremely pernicious and dishonourable, it must be admitted that the first measures after the banishment of Clarendon, both in domestic and foreign policy, were highly praiseworthy. Bridgeman, who succeeded the late chancellor in the custody of the great seal, with the assistance of Chief Baron Hale and Bishop Wilkins, and at the instigation of Buckingham, who, careless about every religion, was from humanity or politic motives friendly to the indulgence of all, laid the foundations of a treaty with the nonconformists, on the basis of a comprehension for the presbyterians, and a toleration for the rest.[649] They had nearly come, it is said, to terms of agreement, so that it was thought time to intimate their design in a speech from the throne. But the spirit of 1662 was still too powerful in the Commons; and the friends of Clarendon, whose administration this change of counsels seemed to reproach, taking a warm part against all indulgence, a motion that the king be desired to send for such persons as he should think fit to make proposals to him in order to the uniting of his protestant subjects, was negatived by 176 to 70.[650] They proceeded, by almost an equal majority, to continue the bill of 1664, for suppressing seditious conventicles; which failed however for the present, in consequence of the sudden prorogation.[651] _Triple alliance._--But whatever difference of opinion might at that time prevail with respect to this tolerant disposition of the new government, there was none as to their great measure in external policy, the triple alliance with Holland and Sweden. A considerable and pretty sudden change had taken place in the temper of the English people towards France. Though the discordance of national character, and the dislike that seems natural to neighbours, as well as in some measure the recollections of their ancient hostility, had at all times kept up a certain ill-will between the two, it is manifest that before the reign of Charles II. there was not that antipathy and inveterate enmity towards the French in general, which it has since been deemed an act of patriotism to profess. The national prejudices, from the accession of Elizabeth to the restoration, ran far more against Spain; and it is not surprising that the apprehensions of that ambitious monarchy, which had been very just in the age of Philip II., should have lasted longer than its ability or inclination to molest us. But the rapid declension of Spain, after the peace of the Pyrenees, and the towering ambition of Louis XIV., master of a kingdom intrinsically so much more formidable than its rival, manifested that the balance of power in Europe, and our own immediate security, demanded a steady opposition to the aggrandisement of one monarchy, and a regard to the preservation of the other. These indeed were rather considerations for statesmen than for the people; but Louis was become unpopular both by his acquisition of Dunkirk at the expense, as it was thought, of our honour, and much more deservedly by his shuffling conduct in the Dutch war, and union in it with our adversaries. Nothing therefore gave greater satisfaction in England than the triple alliance, and consequent peace of Aix la Chapelle, which saved the Spanish Netherlands from absolute conquest, though not without important sacrifices.[652] _Intrigue with France._--Charles himself meanwhile by no means partook in this common jealousy of France. He had, from the time of his restoration, entered into close relations with that power, which a short period of hostility had interrupted without leaving any resentment in his mind. It is now known that, while his minister was negotiating at the Hague for the triple alliance, he had made overtures for a clandestine treaty with Louis, through his sister the Duchess of Orleans, the Duke of Buckingham, and the French ambassador Rouvigny.[653] As the King of France was at first backward in meeting these advances, and the letters published in regard to them are very few, we do not find any precise object expressed beyond a close and intimate friendship. But a few words in a memorial of Rouvigny to Louis XIV. seem to let us into the secret of the real purpose. "The Duke of York," he says, "wishes much for this union; the Duke of Buckingham the same: they use no art, but say that nothing else can re-establish the affairs of this court."[654] _King's desire to be absolute._--Charles II. was not of a temperament to desire arbitrary power, either through haughtiness and conceit of his station, which he did not greatly display, or through the love of taking into his own hands the direction of public affairs, about which he was in general pretty indifferent. He did not wish, as he told Lord Essex, to sit like a Turkish sultan, and sentence men to the bowstring, but could not bear that a set of fellows should enquire into his conduct.[655] His aim, in fact, was liberty rather than power; it was that immunity from control and censure, in which men of his character place a great part of their happiness. For some years he had cared probably very little about enhancing his prerogative, content with the loyalty, though not quite with the liberality, of his parliament. And had he not been drawn, against his better judgment, into the war with Holland, this harmony might perhaps have been protracted a good deal longer. But the vast expenditure of that war, producing little or no decisive success, and coming unfortunately at a time when trade was not very thriving, and when rents had considerably fallen, exasperated all men against the prodigality of the court, to which they might justly ascribe part of their burthens, and, with the usual miscalculations, believed that much more of them was due. Hence the bill appointing commissioners of public account, so ungrateful to the king, whose personal reputation it was likely to affect, and whose favourite excesses it might tend to restrain. He was almost equally provoked by the licence of his people's tongues. A court like that of Charles is the natural topic of the idle, as well as the censorious. An administration so ill-conducted could not escape the remarks of a well-educated and intelligent city. There was one method of putting an end to these impertinent comments, or of rendering them innoxious; but it was the last which he would have adopted. Clarendon informs us that the king one day complaining of the freedom, as to political conversation, taken in coffee-houses, he recommended either that all persons should be forbidden by proclamation to resort to them, or that spies should be placed in them to give information against seditious speakers.[656] The king, he says, liked both expedients; but thought it unfair to have recourse to the latter till the former had given fair warning, and directed him to propose it to the council; but here, Sir William Coventry objecting, the king was induced to abandon the measure, much to Clarendon's disappointment, though it probably saved him an additional article in his impeachment. The unconstitutional and arbitrary tenor of this great minister's notions of government is strongly displayed in this little anecdote. Coventry was an enlightened, and, for that age, an upright man, whose enmity Clarendon brought on himself by a marked jealousy of his abilities in council. Those who stood nearest to the king were not backward to imitate his discontent at the privileges of his people and their representatives. The language of courtiers and court-ladies is always intolerable to honest men, especially that of such courtiers as surrounded the throne of Charles II. It is worst of all amidst public calamities, such as pressed very closely on one another in a part of his reign; the awful pestilence of 1665, the still more ruinous fire of 1666, the fleet burned by the Dutch in the Medway next summer. No one could reproach the king for outward inactivity or indifference during the great fire. But there were some, as Clarendon tells us, who presumed to assure him, "that this was the greatest blessing that God had ever conferred on him, his restoration only excepted; for the walls and gates being now burned and thrown down of that rebellious city, which was always an enemy to the Crown, his majesty would never suffer them to repair and build them up again, to be a bit in his mouth and a bridle upon his neck; but would keep all open, that his troops might enter upon them whenever he thought it necessary for his service; there being no other way to govern that rude multitude but by force."[657] This kind of discourse, he goes on to say, did not please the king. But here we may venture to doubt his testimony; or, if the natural good temper of Charles prevented him from taking pleasure in such atrocious congratulations, we may be sure that he was not sorry to think the city more in his power. It seems probable that this loose and profligate way of speaking gave rise, in a great degree, to the suspicion that the city had been purposely burned by those who were more enemies to religion and liberty than to the court. The papists stood ready to bear the infamy of every unproved crime; and a committee of the House of Commons collected evidence enough for those who were already convinced, that London had been burned by that obnoxious sect. Though the house did not proceed farther, there can be no doubt that the enquiry contributed to produce that inveterate distrust of the court, whose connections with the popish faction were half known, half conjectured, which gave from this time an entirely new complexion to the parliament. Prejudiced as the Commons were, they could hardly have imagined the catholics to have burned the city out of mere malevolence; but must have attributed the crime to some far-spreading plan of subverting the established constitution.[658] The retention of the king's guards had excited some jealousy, though no complaints seem to have been made of it in parliament; but the sudden levy of a considerable force in 1667, however founded upon a very plausible pretext from the circumstances of the war, lending credit to these dark surmises of the court's sinister designs, gave much greater alarm. The Commons, summoned together in July, instantly addressed the king to disband his army as soon as peace should be made. We learn from the Duke of York's private memoirs that some of those who were most respected for their ancient attachment to liberty, deemed it in jeopardy at this crisis. The Earls of Northumberland and Leicester, Lord Hollis, Mr. Pierrepont, and others of the old parliamentary party, met to take measures together. The first of these told the Duke of York that the nation would not be satisfied with the removal of the chancellor, unless the guards were disbanded, and several other grievances redressed. The duke bade him be cautious what he said, lest he should be obliged to inform the king; but Northumberland replied that it was his intention to repeat the same to the king, which he did accordingly the next day.[659] This change in public sentiment gave warning to Charles that he could not expect to reign with as little trouble as he had hitherto experienced; and doubtless the recollection of his father's history did not contribute to cherish the love he sometimes pretended for parliaments. His brother, more reflecting and more impatient of restraint on royal authority, saw with still greater clearness than the king, that they could only keep the prerogative at its desired height by means of intimidation. A regular army was indispensable; but to keep up an army in spite of parliament, or to raise money for its support without parliament, were very difficult undertakings. It seemed necessary to call in a more powerful arm than their own; and, by establishing the closest union with the King of France, to obtain either military or pecuniary succours from him, as circumstances might demand. But there was another and not less imperious motive for a secret treaty. The king, as has been said, though little likely, from the tenor of his life, to feel very strong and lasting impressions of religion, had at times a desire to testify publicly his adherence to the Romish communion. The Duke of York had come more gradually to change the faith in which he was educated. He describes it as the result of patient and anxious enquiry; nor would it be possible therefore to fix a precise date for his conversion, which seems to have been not fully accomplished till after the Restoration.[660] He however continued in conformity to the church of England; till, on discovering that the catholic religion exacted an outward communion, which he had fancied not indispensable, he became more uneasy at the restraint that policy imposed on him. This led to a conversation with the king, of whose private opinions and disposition to declare them he was probably informed, and to a close union with Clifford and Arlington, from whom he had stood aloof on account of their animosity against Clarendon. The king and duke held a consultation with those two ministers, and with Lord Arundel of Wardour, on the 25th of January 1669, to discuss the ways and methods fit to be taken for the advancement of the catholic religion in these kingdoms. The king spoke earnestly, and with tears in his eyes. After a long deliberation, it was agreed that there was no better way to accomplish this purpose than through France; the house of Austria being in no condition to give any assistance.[661] _Secret treaty of 1670._--The famous secret treaty, which, though believed on pretty good evidence not long after the time, was first actually brought to light by Dalrymple about half a century since, began to be negotiated very soon after this consultation.[662] We find allusions to the king's projects in one of his letters to the Duchess of Orleans, dated 22nd March 1669.[663] In another of June 6, the methods he was adopting to secure himself in this perilous juncture appear. He was to fortify Plymouth, Hull, and Portsmouth, and to place them in trusty hands. The fleet was under the duke, as lord admiral; the guards and their officers were thought in general well affected;[664] but his great reliance was on the most christian king. He stipulated for £200,000 annually, and for the aid of 6000 French troops.[665] In return for such important succour, Charles undertook to serve his ally's ambition and wounded pride against the United Provinces. These, when conquered by the French arms, with the co-operation of an English navy, were already shared by the royal conspirators. A part of Zealand fell to the lot of England, the remainder of the Seven Provinces to France, with an understanding that some compensation should be made to the Prince of Orange. In the event of any new rights to the Spanish monarchy accruing to the most christian king, as it is worded (that is, on the death of the King of Spain, a sickly child), it was agreed that England should assist him with all her force by sea and land, but at his own expense; and should obtain, not only Ostend and Minorca, but, as far as the King of France could contribute to it, such parts of Spanish America as she should choose to conquer.[666] So strange a scheme of partitioning that vast inheritance was never, I believe, suspected till the publication of the treaty; though Bolingbroke had alluded to a previous treaty of partition between Louis and the Emperor Leopold, the complete discovery of which has been but lately made.[667] _Differences between Charles and Louis as to the mode of the execution of the treaty._--Each conspirator, in his coalition against the protestant faith and liberties of Europe, had splendid objects in view; but those of Louis seemed by far the more probable of the two, and less liable to be defeated. The full completion of their scheme would have re-united a great kingdom to the catholic religion, and turned a powerful neighbour into a dependent pensioner. But should this fail (and Louis was too sagacious not to discern the chances of failure), he had pledged to him the assistance of an ally in subjugating the republic of Holland, which, according to all human calculation, could not withstand their united efforts; nay, even in those ulterior projects which his restless and sanguine ambition had ever in view, and the success of which would have realised, not indeed the chimera of an universal monarchy, but a supremacy and dictatorship over Europe. Charles, on the other hand, besides that he had no other return to make for the necessary protection of France, was impelled by a personal hatred of the Dutch, and by the consciousness that their commonwealth was the standing reproach of arbitrary power, to join readily in the plan for its subversion. But, looking first to his own objects, and perhaps a little distrustful of his ally, he pressed that his profession of the Roman catholic religion should be the first measure in prosecution of the treaty; and that he should immediately receive the stipulated £200,000, or at least a part of the money. Louis insisted that the declaration of war against Holland should precede. This difference occasioned a considerable delay; and it was chiefly with a view of bringing round her brother on this point, that the Duchess of Orleans took her famous journey to Dover in the spring of 1670. Yet, notwithstanding her influence, which passed for irresistible, he persisted in adhering to the right reserved to him in the draft of the treaty, of choosing his own time for the declaration of his religion, and it was concluded on this footing at Dover, by Clifford, Arundel, and Arlington, on the 22nd of May 1670, during the visit of the Duchess of Orleans.[668] A mutual distrust, however, retarded the further progress of this scheme; one party unwilling to commit himself till he should receive money, the other too cautious to run the risk of throwing it away. There can be no question but that the King of France was right in urging the conquest of Holland as a preliminary of the more delicate business they were to manage in England; and, from Charles's subsequent behaviour, as well as his general fickleness and love of ease, there seems reason to believe that he would gladly have receded from an undertaking of which he must every day have more strongly perceived the difficulties. He confessed, in fact, to Louis's ambassador, that he was almost the only man in his kingdom who liked a French alliance.[669] The change of religion, on a nearer view, appeared dangerous for himself, and impracticable as a national measure. He had not dared to intrust any of his protestant ministers, even Buckingham, whose indifference in such points was notorious, with this great secret; and, to keep them the better in the dark, a mock negotiation was set on foot with France, and a pretended treaty actually signed, the exact counterpart of the other, except as to religion. Buckingham, Shaftesbury, and Lauderdale were concerned in this simulated treaty, the negotiation for which did not commence till after the original convention had been signed at Dover.[670] The court of France having yielded to Charles the point about which he had seemed so anxious, had soon the mortification to discover that he would take no steps to effect it. They now urged that immediate declaration of his religion, which they had for very wise reasons not long before dissuaded. The King of England hung back, and tried so many excuses, that they had reason to suspect his sincerity; not that in fact he had played a feigned part from the beginning, but his zeal for popery having given way to the seductions of a voluptuous and indolent life, he had been led, with the good sense he naturally possessed, to form a better estimate of his resources and of the opposition he must encounter. Meanwhile the eagerness of his ministers had plunged the nation into war with Holland; and Louis, having attained his principal end, ceased to trouble the king on the subject of religion. He received large sums from France during the Dutch war.[671] This memorable transaction explains and justifies the strenuous opposition made in parliament to the king and Duke of York, and may be reckoned the first act of a drama which ended in the revolution. It is true that the precise terms of this treaty were not authentically known; but there can be no doubt that those who from this time displayed an insuperable jealousy of one brother, and a determined enmity to the other, had proofs, enough for moral conviction, of their deep conspiracy with France against religion and liberty. This suspicion is implied in all the conduct of that parliamentary opposition, and is the apology of much that seems violence and faction, especially in the business of the popish plot and the bill of exclusion. It is of importance also to observe that James II. was not misled and betrayed by false or foolish counsellors, as some would suggest, in his endeavours to subvert the laws, but acted on a plan, long since concerted, and in which he had taken a principal share. It must be admitted that neither in the treaty itself nor in the few letters which have been published by Dalrymple, do we find any explicit declaration, either that the catholic religion was to be established as the national church, or arbitrary power introduced in England. But there are not wanting strong presumptions of this design. The king speaks, in a letter to his sister, of finding means to put the proprietors of church lands out of apprehension.[672] He uses the expression, "rétablir la religion catholique;" which, though not quite unequivocal, seems to convey more than a bare toleration, or a personal profession by the sovereign.[673] He talks of a negotiation with the court of Rome to obtain the permission of having mass in the vulgar tongue and communion in both kinds, as terms that would render his conversion agreeable to his subjects.[674] He tells the French ambassador, that not only his conscience, but the confusion he saw every day increasing in his kingdom, to the diminution of his authority, impelled him to declare himself a catholic; which, besides the spiritual advantage, he believed to be the only means of restoring the monarchy. These passages, as well as the precautions taken in expectation of a vigorous resistance from a part of the nation, appear to intimate a formal re-establishment of the catholic church; a measure connected, in the king's apprehension, if not strictly with arbitrary power, yet with a very material enhancement of his prerogative. For the profession of an obnoxious faith by the king, as an insulated person, would, instead of strengthening his authority, prove the greatest obstacle to it; as, in the next reign, turned out to be the case. Charles, however, and the Duke of York deceived themselves into a confidence that the transition could be effected with no extraordinary difficulty. The king knew the prevailing laxity of religious principles in many about his court, and thought he had reason to rely on others as secretly catholic. Sunderland is mentioned as a young man of talent, inclined to adopt that religion.[675] Even the Earl of Orrery is spoken of as a catholic in his heart.[676] The duke, who conversed more among divines, was led to hope, from the strange language of the high-church party, that they might readily be persuaded to make what seemed no long step, and come into easy terms of union.[677] It was the constant policy of the Romish priests to extenuate the differences between the two churches, and to throw the main odium of the schism on the Calvinistic sects. And many of the Anglicans, in their abhorrence of protestant nonconformists, played into the hands of the common enemy. _Fresh severities against dissenters._--The court, however, entertained great hopes from the depressed condition of the dissenters, whom it was intended to bribe with that toleration under a catholic regimen, which they could so little expect from the church of England. Hence the Duke of York was always strenuous against schemes of comprehension, which would invigorate the protestant interest and promote conciliation. With the opposite view of rendering a union among protestants impracticable, the rigorous episcopalians were encouraged underhand to prosecute the nonconformists.[678] The Duke of York took pains to assure Owen, an eminent divine of the independent persuasion, that he looked on all persecution as an unchristian thing, and altogether against his conscience.[679] Yet the court promoted a renewal of the temporary act, passed in 1664 against conventicles, which was reinforced by the addition of an extraordinary proviso, That all clauses in the act should be construed most largely and beneficially for suppressing conventicles, and for the justification and encouragement of all persons to be employed in the execution thereof.[680] Wilkins, the most honest of the bishops, opposed this act in the House of Lords, notwithstanding the king's personal request that he would be silent.[681] Sheldon and others, who, like him, disgraced the church of England by their unprincipled policy or their passions, not only gave it their earnest support at the time, but did all in their power to enforce its execution.[682] As the king's temper was naturally tolerant, his co-operation in this severe measure would not easily be understood, without the explanation that a knowledge of his secret policy enables us to give. In no long course of time the persecution was relaxed, the imprisoned ministers set at liberty, some of the leading dissenters received pensions, and the king's declaration of a general indulgence held forth an asylum from the law under the banner of prerogative.[683] Though this is said to have proceeded from the advice of Shaftesbury, who had no concern in the original secret treaty with France, it was completely in the spirit of that compact, and must have been acceptable to the king. But the factious, fanatical, republican party (such were the usual epithets of the court at the time, such have ever since been applied by the advocates or apologists of the Stuarts), had gradually led away by their delusions that parliament of cavaliers; or, in other words, the glaring vices of the king, and the manifestation of designs against religion and liberty, had dispossessed them of a confiding loyalty, which, though highly dangerous from its excess, had always been rather ardent than servile. The sessions had been short, and the intervals of repeated prorogations much longer than usual; a policy not well calculated for that age, where the growing discontents and suspicions of the people acquired strength by the stoppage of the regular channel of complaint. Yet the House of Commons, during this period, though unmanageable on the one point of toleration, had displayed no want of confidence in the king nor any animosity towards his administration; notwithstanding the flagrant abuses in the expenditure, which the parliamentary commission of public accounts had brought to light, and the outrageous assault on Sir John Coventry; a crime notoriously perpetrated by persons employed by the court, and probably by the king's direct order.[684] _Dutch war._--The war with Holland at the beginning of 1672, so repugnant to English interests, so unwarranted by any provocation, so infamously piratical in its commencement, so ominous of further schemes still more dark and dangerous, finally opened the eyes of all men of integrity. It was accompanied by the shutting up of the exchequer, an avowed bankruptcy at the moment of beginning an expensive war,[685] and by the declaration of indulgence, or suspension of all penal laws in religion; an assertion of prerogative which seemed without limit. These exorbitances were the more scandalous, that they happened during a very long prorogation. Hence the court so lost the confidence of the House of Commons, that, with all the lavish corruption of the following period, it could never regain a secure majority on any important question. The superiority of what was called the country party is referred to the session of February 1673, in which they compelled the king to recall his proclamation suspending the penal laws, and raised a barrier against the encroachments of popery in the test act. _Declaration of indulgence._--The king's declaration of indulgence had been projected by Shaftesbury, in order to conciliate or lull to sleep the protestant dissenters. It redounded, in its immediate effect, chiefly to their benefit; the catholics already enjoying a connivance at the private exercise of their religion, and the declaration expressly refusing them public places of worship. The plan was most laudable in itself, could we separate the motives which prompted it, and the means by which it was pretended to be made effectual. But in the declaration the king says, "We think ourselves obliged to make use of that supreme power in ecclesiastical matters, which is not only inherent in us, but hath been declared and recognised to be so by several statutes and acts of parliament." "We do," he says, not long afterwards, "declare our will and pleasure to be, that the execution of all and all manner of penal laws in matters ecclesiastical, against whatsoever sort of nonconformists or recusants, be immediately suspended, and they are hereby suspended." He mentions also his intention to license a certain number of places for the religious worship of nonconforming protestants.[686] It was generally understood to be an ancient prerogative of the Crown to dispense with penal statutes in favour of particular persons, and under certain restrictions. It was undeniable, that the king might, by what is called a "noli prosequi," stop any criminal prosecution commenced in his courts, though not an action for the recovery of a pecuniary penalty, which, by many statutes, was given to the common informer. He might of course set at liberty, by means of a pardon, any person imprisoned, whether upon conviction or by a magistrate's warrant. Thus the operation of penal statutes in religion might in a great measure be rendered ineffectual, by an exercise of undisputed prerogatives; and thus, in fact, the catholics had been enabled, since the accession of the house of Stuart, to withstand the crushing severity of the laws. But a pretension, in explicit terms, to suspend a body of statutes, a command to magistrates not to put them in execution, arrogated a sort of absolute power, which no benefits of the indulgence itself (had they even been less insidiously offered) could induce a lover of constitutional privileges to endure.[687] Notwithstanding the affected distinction of temporal and ecclesiastical matters, it was evident that the king's supremacy was as much capable of being bounded by the legislature in one as in the other, and that every law in the statute-book might be repealed by a similar proclamation. The House of Commons voted that the king's prerogative, in matters ecclesiastical, does not extend to repeal acts of parliament; and addressed the king to recall his declaration. Whether from a desire to protect the nonconformists in a toleration even illegally obtained, or from the influence of Buckingham among some of the leaders of opposition, it appears from the debates that many of those, who had been in general most active against the court, resisted this vote, which was carried by 168 to 116. The king, in his answer to this address, lamented that the house should question his ecclesiastical power, which had never been done before. This brought on a fresh rebuke; and, in a second address they positively deny the king's right to suspend any law. "The legislative power," they say, "has always been acknowledged to reside in the king and two houses of parliament." The king, in a speech to the House of Lords, complained much of the opposition made by the Commons; and found a majority of the former disposed to support him, though both houses concurred in an address against the growth of popery. At length, against the advice of the bolder part of his council, but certainly with a just sense of what he most valued, his ease of mind, Charles gave way to the public voice, and withdrew his declaration.[688] There was indeed a line of policy indicated at this time, which, though intolerable to the bigotry and passion of the house, would best have foiled the schemes of the ministry; a legislative repeal of all the penal statutes both against the catholic and the protestant dissenter, as far as regarded the exercise of their religion. It must be evident to any impartial man that the unrelenting harshness of parliament, from whom no abatement, even in the sanguinary laws against the priests of the Romish church, had been obtained, had naturally, and almost irresistibly, driven the members of that persuasion into the camp of prerogative, and even furnished a pretext for that continual intrigue and conspiracy, which was carried on in the court of Charles II., as it had been in that of his father. A genuine toleration would have put an end to much of this; but, in the circumstances of that age, it could not have been safely granted without an exclusion from those public trusts, which were to be conferred by a sovereign in whom no trust could be reposed. The act of supremacy, in the first year of Elizabeth, had imposed on all, accepting temporal as well as ecclesiastical offices, an oath denying the spiritual jurisdiction of the pope. But, though the refusal of this oath, when tendered, incurred various penalties, yet it does not appear that any were attached to its neglect, or that the oath was a previous qualification for the enjoyment of office, as it was made by a subsequent act of the same reign for sitting in the House of Commons. It was found also by experience that persons attached to the Roman doctrine sometimes made use of strained constructions to reconcile the oath of supremacy to their faith. Nor could that test be offered to peers, who were accepted by a special provision. _Test act._--For these several reasons a more effectual security against popish counsellors, at least in notorious power, was created by the famous test act of 1673, which renders the reception of the sacrament according to the rites of the church of England, and a declaration renouncing the doctrine of transubstantiation, preliminary conditions without which no temporal office of trust can be enjoyed.[689] In this fundamental article of faith, no compromise or equivocation would be admitted by any member of the church of Rome. And, as the obligation extended to the highest ranks, this reached the end for which it was immediately designed; compelling, not only the lord-treasurer Clifford, the boldest and most dangerous of that party, to retire from public business, but the Duke of York himself, whose desertion of the protestant church was hitherto not absolutely undisguised, to quit the post of lord admiral.[690] It is evident that a test might have been framed to exclude the Roman catholic as effectually as the present, without bearing like this on the protestant nonconformist. But, though the preamble of the bill, and the whole history of the transaction, show that the main object was a safeguard against popery, it is probable that a majority of both houses liked it the better for this secondary effect of shutting out the presbyterians still more than had been done by previous statutes of this reign. There took place however a remarkable coalition between the two parties; and many who had always acted as high-church men and cavaliers, sensible at last of the policy of their common adversaries, renounced a good deal of the intolerance and bigotry that had characterised the present parliament. The dissenters, with much prudence or laudable disinterestedness, gave their support to the test act. In return, a bill was brought in, and, after some debate, passed to the lords, repealing in a considerable degree the persecuting laws against their worship.[691] The upper house, perhaps insidiously, returned it with amendments more favourable to the dissenters, and insisted upon them, after a conference.[692] A sudden prorogation very soon put an end to this bill, which was as unacceptable to the court as it was to the zealots of the church of England. It had been intended to follow it up by another, excluding all who should not conform to the established church from serving in the House of Commons.[693] It may appear remarkable that, as if content with these provisions, the victorious country party did not remonstrate against the shutting up of the exchequer, nor even wage any direct war against the king's advisers. They voted, on the contrary, a large supply, which, as they did not choose explicitly to recognise the Dutch war, was expressed to be granted for the king's extraordinary occasions.[694] This moderation, which ought at least to rescue them from the charges of faction and violence, has been censured by some as servile and corrupt; and would really incur censure, if they had not attained the great object of breaking the court measures by other means. But the test act, and their steady protestation against the suspending prerogative, crushed the projects and dispersed the members of the cabal. The king had no longer any minister on whom he could rely, and, with his indolent temper, seems from this time, if not to have abandoned all hope of declaring his change of religion, yet to have seen both that and his other favourite projects postponed without much reluctance. From a real predilection, from the prospect of gain, and partly, no doubt, from some distant views of arbitrary power and a catholic establishment, he persevered a long time in clinging secretly to the interests of France; but his active co-operation in the schemes of 1669 was at an end. In the next session of October 1673, the Commons drove Buckingham from the king's councils; they intimidated Arlington into a change of policy; and, though they did not succeed in removing the Duke of Lauderdale, compelled him to confine himself chiefly to the affairs of Scotland.[695] FOOTNOTES: [523] _Life of Clarendon_, p. 69. [524] _Clar. State Papers_, iii. 427, 529. In fact, very few of them were likely to be of use; and the exception made his general offers appear more sincere. [525] _Clar. Hist. of Rebellion_, vii. 447. Ludlow says that Fairfax and Northumberland were positively against the punishment of the regicides (vol. iii. p. 10); and that Monk vehemently declared at first against any exceptions, and afterwards prevailed on the house to limit them to seven. P. 16. Though Ludlow was not in England, this seems very probable, and is confirmed by other authority as to Monk. Fairfax, who had sat one day himself on the king's trial, could hardly with decency concur in the punishment of those who went on. [526] Journals, May 14. [527] June 5, 6, 7. The first seven were Scott, Holland, Lisle, Barkstead, Harrison, Say, Jones. They went on to add Coke, Broughton, Dendy. [528] These were Lenthall, Vane, Burton, Keble, St. John, Ireton, Haslerig, Sydenham, Desborough, Axtell, Lambert, Pack, Blackwell, Fleetwood, Pyne, Dean, Creed, Nye, Goodwin, and Cobbet; some of them rather insignificant names. Upon the words that "twenty and no more" be so excepted, two divisions took place, 160 to 131, and 153 to 135; the presbyterians being the majority. June 8. Two other divisions took place on the names of Lenthall, carried by 215 to 126, and of Whitelock, lost by 175 to 134. Another motion was made afterwards against Whitelock by Prynne. Milton was ordered to be prosecuted separately from the twenty; so that they already broke their resolution. He was put in custody of the serjeant-at-arms, and released, December 17. Andrew Marvell, his friend, soon afterwards complained that fees to the amount of 150 pounds had been extorted from him; but Finch answered that Milton had been Cromwell's secretary, and deserved hanging. _Parl. Hist._ p. 162. Lenthall had taken some share in the restoration, and entered into correspondence with the king's advisers a little before. _Clar. State Papers_, iii. 711, 720. Kennet's _Register_, 762. But the royalists never could forgive his having put the question to the vote on the ordinance for trying the late king. [529] June 30. This was carried without a division. Eleven were afterwards excepted by name, as not having rendered themselves. July 9. [530] July 11. [531] The worst and most odious of their proceedings, quite unworthy of a christian and civilised assembly, was to give the next relations of the four peers who had been executed under the commonwealth, Hamilton, Holland, Capel, and Derby, the privilege of naming each one person (among the regicides) to be executed. This was done in the three last instances; but Lord Denbigh, as Hamilton's kinsman, nominated one who was dead; and, on this being pointed out to him, refused to fix on another. Journal, Aug. 7; Ludlow, iii. 34. [532] Lord Southampton, according to Ludlow, actually moved this in the House of Lords, but was opposed by Finch, iii. 43. [533] Clarendon uses some shameful chicanery about this (_Life_, p. 69); and with that inaccuracy, to say the least, so habitual to him, says, "the parliament had published a proclamation, that all who did not render themselves by a day named should be judged as guilty, and attainted of treason." The proclamation was published by the king, on the suggestion indeed of the Lords and Commons, and the expressions were what I have stated in the text. _State Trials_, v. 959; _Somers Tracts_, vii. 437. It is obvious that by this mis-representation he not only throws the blame of ill faith off the king's shoulders, but puts the case of those who obeyed the proclamation on a very different footing. The king, it seems, had always expected that none of the regicides should be spared. But why did he publish such a proclamation? Clarendon, however, seems to have been against the other exceptions from the bill of indemnity, as contrary to some expressions in the declaration from Breda, which had been inserted by Monk's advice; and thus wisely and honourably got rid of the twenty exceptions, which had been sent up from the Commons. P. 133. The lower house resolved to agree with the Lords as to those twenty persons, or rather sixteen of them, by 197 to 102, Hollis and Morrice telling the Ayes. [534] Stat. 12 Car. II. c. 11. [535] These were, in the first instance, Harrison, Scott, Scrope, Jones, Clement, Carew, all of whom had signed the warrant, Cook, the solicitor at the high court of justice, Hacker and Axtell, who commanded the guard on that occasion, and Peters. Two years afterwards, Downing, ambassador in Holland, prevailed on the states to give up Barkstead, Corbet, and Okey. They all died with great constancy, and an enthusiastic persuasion of the righteousness of their cause. _State Trials._ Pepys says in his _Diary_, 13th October 1660, of Harrison, whose execution he witnessed, that "he looked as cheerful as any man could do in that condition." [536] It is remarkable, that Scrope had been so particularly favoured by the convention parliament, as to be exempted, together with Hutchinson and Lascelles, from any penalty or forfeiture by a special resolution. June 9. But the Lords put in his name again, though they pointedly excepted Hutchinson; and the Commons, after first resolving that he should only pay a fine of one year's value of his estate, came at last to agree in excepting him from the indemnity as to life. It appears that some private conversation of Scrope had been betrayed, wherein he spoke of the king's death as he thought. As to Hutchinson, he had certainly concurred in the restoration, having an extreme dislike to the party who had turned out the parliament in Oct. 1659, especially Lambert. This may be inferred from his conduct, as well as by what Ludlow says, and Kennet in his _Register_, p. 169. His wife puts a speech into his mouth as to his share in the king's death, not absolutely justifying it, but, I suspect, stronger than he ventured to use. At least, the Commons voted that he should not be excepted from the indemnity, "on account of his signal repentance," which could hardly be predicated of the language she ascribes to him. Compare Mrs. Hutchinson's _Memoirs_, p. 367, with Commons' Journals, June 9. [537] Horace Walpole, in his _Catalogue of Noble Authors_, has thought fit to censure both these persons for their pretended inconsistency. The case is, however, different as to Monk and Cooper; and perhaps it may be thought, that men of more delicate sentiments than either of these possessed, would not have sat upon the trial of those with whom they had long professed to act in concert, though innocent of their crime. [538] Commons' Journals, May 12, 1660. [539] _Parl. Hist._ iv. 80. [540] _Id._ iv. 129. [541] _Memoirs_, p. 229. It appears by some passages in the _Clarendon Papers_, that the church had not expected to come off so brilliantly; and, while the restoration was yet unsettled, would have been content to give leases of their lands. Pp. 620, 723. Hyde, however, was convinced that the church would be either totally ruined, or restored to a great lustre; and herein he was right, as it turned out. P. 614. [542] _Life of Clarendon_, 99. L'Estrange, in a pamphlet printed before the end of 1660, complains that the cavaliers were neglected, the king betrayed, the creatures of Cromwell, Bradshaw, and St. John laden with offices and honours. Of the indemnity he says, "That act made the enemies to the constitution masters in effect of the booty of three nations, bating the Crown and church lands, all which they might now call their own; while those who stood up for the laws were abandoned to the comfort of an irreparable but honourable ruin." He reviles the presbyterian ministers still in possession; and tells the king that misplaced lenity was his father's ruin. Kennet's _Register_, p. 233. See too, in _Somers Tracts_, vii. 517, "The Humble Representation of the Sad Condition of the King's Party." Also p. 557. [543] Commons' Journals, 4 September 1660. Sir Philip Warwick, chancellor of the exchequer, assured Pepys that the revenue fell short by a fourth of the £1,200,000 voted by parliament. See his _Diary_, March 1, 1664. Ralph, however, says, the income in 1662 was £1,120,593, though the expenditure was £1,439,000. P. 88. It appears probable that the hereditary excise did not yet produce much beyond its estimate. _Id._ p. 20. [544] 21 Nov. 1660, 151 to 149. _Parl. Hist._ [545] The troops disbanded were fourteen regiments of horse and eighteen of foot in England: one of horse and four of foot in Scotland, besides garrisons. Journals, Nov. 7. [546] Ralph, 35; _Life of James_, 447; Grose's _Military Antiquities_, i. 61. [547] Neal, 429, 444. [548] _Id._ 471; Pepy's _Diary_, ad init. Even in Oxford, about 300 episcopalians used to meet every Sunday with the connivance of Dr. Owen, dean of Christ Church. Orme's _Life of Owen_, 188. It is somewhat bold in Anglican writers to complain, as they now and then do, of the persecution they suffered at this period, when we consider what had been the conduct of the bishops before, and what it was afterwards. I do not know that any member of the church of England was imprisoned under the commonwealth, except for some political reason; certain it is that the gaols were not filled with them. [549] The penal laws were comparatively dormant, though two priests suffered death, one of them before the protectorate. Butler's _Mem. of Catholics_, ii. 13. But in 1655 Cromwell issued a proclamation for the execution of these statutes; which seems to have been provoked by the persecution of the Vaudois. Whitelocke tells us he opposed it. 625. It was not acted upon. [550] Several of these appear in _Somers Tracts_, vol. vii. The king's nearest friends were of course not backward in praising him, though a little at the expense of their consciences. "In a word," says Hyde to a correspondent in 1659, "if being the best protestant and the best Englishman of the nation can do the king good at home, he must prosper with and by his own subjects." _Clar. State Papers_, 541. Morley says he had been to see Judge Hale, who asked him questions about the king's character and firmness in the protestant religion. _Id._ 736. Morley's exertions to dispossess men of the notion that the king and his brother were inclined to popery, are also mentioned by Kennet in his _Register_, 818: a book containing very copious information as to this particular period. Yet Morley could hardly have been without strong suspicions as to both of them. [551] He had written in cipher to Secretary Nicholas, from St. Johnston's, Sept. 3, 1650, the day of the battle of Dunbar, "Nothing could have confirmed me more to the church of England than being here, seeing their hypocrisy." Supplement to Evelyn's _Diary_, 133. The whole letter shows that he was on the point of giving his new friends the slip; as indeed he attempted soon after, in what was called the Start. Laing, iii. 463. [552] 12 Car. II. c. 17. It is quite clear that an usurped possession was confirmed by this act, where the lawful incumbent was dead; though Burnet intimates the contrary. [553] _Parl. Hist._ 94. The chancellor, in his speech to the houses at their adjournment in September, gave them to understand that this bill was not quite satisfactory to the court, who preferred the confirmation of ministers by particular letters patent under the great seal; that the king's prerogative of dispensing with acts of parliament might not grow into disuse. Many got the additional security of such patents; which proved of service to them, when the next parliament did not think fit to confirm this important statute. Baxter says (p. 241), some got letters patent to turn out the possessors, where the former incumbents were dead. These must have been to benefices in the gift of the Crown; in other cases, letters patent could have been of no effect. I have found this confirmed by the Journals, Aug. 27, 1660. [554] Upon Venner's insurrection, though the sectaries, and especially the independents, published a declaration of their abhorrence of it, a pretext was found for issuing a proclamation to shut up the conventicles of the anabaptists and quakers, and so worded as to reach all others. Kennet's _Register_, 357. [555] Collier, 869, 871; Baxter, 232, 238. The bishops said, in their answer to the presbyterians' proposals, that the objections against a single person's administration in the church were equally applicable to the state. Collier, 872. But this was false, as they well knew, and designed only to produce an effect at court; for the objections were not grounded on reasoning, but on a presumed positive institution. Besides which, the argument cut against themselves: for, if the English constitution, or something analogous to it, had been established in the church, their adversaries would have had all they _now_ asked. [556] Stillingfleet's _Irenicum_; King's _Inquiry into the Constitution of the Primitive Church_. The former work was published at this time, with a view to moderate the pretensions of the Anglican party, to which the author belonged, by showing: 1. That there are no sufficient data for determining with certainty the form of church-government in the apostolical age, or that which immediately followed it. 2. That, as far as we may probably conjecture, the primitive church was framed on the model of the synagogue; that is, a synod of priests in every congregation having one of their own number for a chief or president. 3. That there is no reason to consider any part of the apostolical discipline as an invariable model for future ages, and that much of our own ecclesiastical polity cannot any way pretend to primitive authority. 4. That this has been the opinion of all the most eminent theologians at home and abroad. 5. That it would be expedient to introduce various modifications, not on the whole much different from the scheme of Usher. Stillingfleet, whose work is a remarkable instance of extensive learning and mature judgment at the age of about twenty-three, thought fit afterwards to retract it in a certain degree; and towards the latter part of his life, gave into more high-church politics. It is true that the _Irenicum_ must have been composed with almost unparalleled rapidity for such a work; but it shows, as far as I can judge, no marks of precipitancy. The biographical writers put its publication in 1659; but this must be a mistake; no one can avoid perceiving that it could not have passed the press on the 24th of March 1660, the latest day which could, according to the old style, have admitted the date of 1659, as it contains allusions to the king's restoration. [557] Baxter's _Life_; Neal. [558] They addressed the king to call such divines as he should think fit, to advise with concerning matters of religion. July 20, 1660. Journals and _Parl. Hist._ [559] _Parl. Hist._; Neal, Baxter, Collier, etc. Burnet says that Clarendon had made the king publish this declaration; "but the bishops did not approve of this; and, after the service they did that lord in the Duke of York's marriage, he would not put any hardship on those who had so signally obliged him." This is very invidious. I know no evidence that the declaration was published at Clarendon's suggestion, except indeed that he was the great adviser of the Crown; yet in some things, especially of this nature, the king seems to have acted without his concurrence. He certainly speaks of the declaration as if he did not wholly relish it (_Life_, 75), and does not state it fairly. In _State Trials_, vi. 11, it is said to have been drawn up by Morley and Henchman for the church, Reynolds and Calamy for the dissenters; if they disagreed, Lords Anglesea and Hollis to decide. [560] The chief objection made by the presbyterians, as far as we learn from Baxter, was, that the consent of presbyters to the bishops' acts was not promised by the declaration, but only their advice; a distinction apparently not very material in practice, but bearing perhaps on the great point of controversy, whether the difference between the two were in order or in degree. The king would not come into the scheme of consent; though they pressed him with a passage out of the _Icon Basilike_, where his father allowed of it. _Life of Baxter_, 276. Some alterations, however, were made in consequence of their suggestions. [561] _Parl. Hist._ 141, 152. Clarendon, 76, most strangely observes on this: "Some of the leaders brought a bill into the house for the making that declaration a law, which was suitable to their other acts of ingenuity to keep the church for ever under the same indulgence and without any settlement; which being quickly perceived, there was no further progress in it." The bill was brought in by Sir Matthew Hale. [562] Collier, who of course thinks this declaration an encroachment on the church, as well as on the legislative power, says, "For this reason it was overlooked at the assizes and sessions in several places in the country, where the dissenting ministers were indicted for not conforming pursuant to the laws in force." P. 876. Neal confirms this, 586, and Kennet's _Register_, 374. [563] _Life of Clarendon_, 74. A plausible and somewhat dangerous attack had been made on the authority of this parliament from an opposite quarter, in a pamphlet written by one Drake, under the name of Thomas Philips, entitled "The Long Parliament Revived," and intended to prove that by the act of the late king, providing that they should not be dissolved but by the concurrence of the whole legislature, they were still in existence; and that the king's demise, which legally puts an end to a parliament, could not affect one that was declared permanent by so direct an enactment. This argument seems by no means inconsiderable; but the times were not such as to admit of technical reasoning. The convention parliament, after questioning Drake, finally sent up articles of impeachment against him; but the Lords, after hearing him in his defence, when he confessed his fault, left him to be prosecuted by the attorney-general. Nothing more, probably, took place. _Parl. Hist._ 145, 157. This was in November and December 1660: but Drake's book seems still to have been in considerable circulation; at least I have two editions of it, both bearing the date of 1661. The argument it contains is purely legal; but the aim must have been to serve the presbyterian or parliamentarian cause. [564] Complaints of insults on the presbyterian clergy were made to the late parliament. _Parl. Hist._ 160. The Anglicans inveighed grossly against them on the score of their past conduct, notwithstanding the act of indemnity. Kennet's _Register_, 616. See, as a specimen, South's sermons, _passim_. [565] Journals, 17th of May 1661. The previous question was moved on this vote, but lost by 228 to 103; Morice, the secretary of state, being one of the tellers for the minority. Monk, I believe, to whom Morice owed his elevation, did what he could to prevent violent measures against the presbyterians. Alderman Love was suspended from sitting in the house July 3, for not having taken the sacrament. I suppose that he afterwards conformed; for he became an active member of the opposition. [566] Journals, June 14, etc.; _Parl. Hist._ 209; _Life of Clarendon_, 71; Burnet, 230. A bill discharging the loyalists from all interest exceeding three per cent. on debts contracted before the wars passed the Commons; but was dropped in the other house. The great discontent of this party at the indemnity continued to show itself in subsequent sessions. Clarendon mentions, with much censure, that many private bills passed about 1662, annulling conveyances of lands made during the troubles. Pp. 162, 163. One remarkable instance ought to be noticed, as having been greatly misrepresented. At the Earl of Derby's seat of Knowsley in Lancashire a tablet is placed to commemorate the ingratitude of Charles II. in having refused the royal assent to a bill which had passed both houses for restoring the son of the Earl of Derby, who had lost his life in the royal cause, to his family estate. This has been so often reprinted by tourists and novelists, that it passes currently for a just reproach on the king's memory. It was, however, in fact one of his most honourable actions. The truth is, that the cavalier faction carried through parliament a bill to make void the conveyances of some manors which Lord Derby had voluntarily sold before the restoration, in the very face of the act of indemnity, and against all law and justice. Clarendon, who, together with some very respectable peers, had protested against this measure in the upper house, thought it his duty to recommend the king to refuse his assent. Lords' Journals, Feb. 6 and May 14, 1662. There is so much to blame in both the minister and his master, that it is but fair to give them credit for that which the pardonable prejudices of the family interested have led it to mis-state. [567] Commons' Journals, 1st July 1661. A division took place, November 26, on a motion to lay this bill aside, in consideration of the king's proclamation, which was lost by 124 to 109: Lord Cornbury (Clarendon's son) being a teller for the Noes. The bill was sent up to the Lords Jan. 27, 1662. See also _Parl. Hist._ 217, 225. Some of their proceedings trespassed upon the executive power, and infringed the prerogative they laboured to exalt. But long interruption of the due course of the constitution had made its boundaries indistinct. Thus, in the convention parliament, the bodies of Cromwell, Bradshaw, Ireton, and others, were ordered, Dec 4, on the motion of Colonel Titus, to be disinterred, and hanged on a gibbet. The Lords concurred in this order; but the mode of address to the king would have been more regular. _Parl. Hist._ 151. [568] 3 Inst. 7. This appears to have been held in Bagot's case, 9 Edw. 4. See also Higden's _View of the English Constitution_, 1709. [569] Foster, in his _Discourse on High Treason_, evidently intimates that he thought the conviction of Vane unjustifiable. [570] "The relation that has been made to me of Sir H. Vane's carriage yesterday in the Hall is the occasion of this letter, which, if I am rightly informed, was so insolent, as to justify all he had done; acknowledging no supreme power in England but a parliament, and many things to that purpose. You have had a true account of all; and if he has given new occasion to be hanged, certainly he is too dangerous a man to let live, if we can honestly put him out of the way. Think of this, and give me some account of it to-morrow, till when I have no more to say to you. C." Indorsed in Lord Clarendon's hand, "The king, June 7, 1662." Vane was beheaded June 14. Burnet (note in Oxford edition), p. 164; Harris's _Lives_, v. 32. [571] Vane gave up the profits of his place as treasurer of the navy, which, according to his patent, would have amounted to £30,000 per ann. if we may rely on Harris's _Life of Cromwell_, p. 260. [572] 13 Car. 2, c. 1 and 6. A bill for settling the militia had been much opposed in the convention parliament, as tending to bring in martial law. _Parl. Hist._ iv. 145. It seems to have dropped. [573] C. 1. [574] C. 2. The only opposition made to this was in the House of Lords by the Earl of Bristol and some of the Roman catholic party, who thought the bishops would not be brought into a toleration of their religion. _Life of Clarendon_, p. 138. [575] C. 5. [576] 13 Car. 2, sess. 2, c. i. This bill did not pass without a strong opposition in the Commons. It was carried at last by 182 to 77 (Journals, July 5); but, on a previous division for its commitment the numbers were 135 to 136. June 20. Prynne was afterwards reprimanded by the speaker for publishing a pamphlet against this act (July 15); but his courage had now forsaken him; and he made a submissive apology, though the censure was pronounced in a very harsh manner. [577] Journals, 3rd April 1662; 10th March 1663. [578] _Parl. Hist._ 289. Clarendon speaks very unjustly of the triennial act, forgetting that he had himself concurred in it. P. 221. [579] 16 Car. 2, c. 1. We find by the Journals that some divisions took place during the passage of this bill, and though, as far as appears, on subordinate points, yet probably springing from an opposition to its principle. March 28, 1664. There was by this time a regular party formed against the court. [580] P. 383. [581] Lords' Journals, 23rd and 24th Jan. 1662. [582] 12th Feb. [583] 19th March 1663. [584] 13 Car. 2, c. 12. [585] Clarendon, in his _Life_, p. 149, says, that the king "had received the presbyterian ministers with grace; and did believe that he should work upon them by persuasions, having been well acquainted with their common arguments by the conversation he had had in Scotland, and _was very able to confute them_." This is one of the strange absurdities into which Clarendon's prejudices hurry him in almost every page of his writings, and more especially in this continuation of his _Life_. Charles, as his minister well knew, could not read a common Latin book (_Clarendon State Papers_, iii. 567), and had no manner of acquaintance with theological learning, unless the popular argument in favour of popery is so to be called; yet he was very able to confute men who had passed their lives in study, on a subject involving a considerable knowledge of Scripture and the early writers in their original languages. [586] Clarendon admits that this could not have been done till the former parliament was dissolved. 97. This means, of course, on the supposition that the king's word was to be broken. "The malignity towards the church," he says, "seemed increasing, and to be greater than at the coming in of the king." Pepys, in his _Diary_, has several sharp remarks on the misconduct and unpopularity of the bishops, though himself an episcopalian even before the restoration. "The clergy are so high that all people I meet with do protest against their practice." August 31, 1660. "I am convinced in my judgment, that the present clergy will never heartily go down with the generality of the commons of England; they have been so used to liberty and freedom, and they are so acquainted with the pride and debauchery of the present clergy. He [Mr. Blackburn, a nonconformist] did give me many stories of the affronts which the clergy receive in all parts of England from the gentry and ordinary persons of the parish." November 9, 1663. The opposite party had recourse to the old weapons of pious fraud. I have a tract containing twenty-seven instances of remarkable judgments, all between June 1660, and April 1661, which befell divers persons for reading the common prayer or reviling godly ministers. This is entitled _Annus Mirabilis_; and, besides the above twenty-seven, attests so many prodigies, that the name is by no means misapplied. The bishops made large fortunes by filling up leases. Burnet, 260. And Clarendon admits them to have been too rapacious, though he tries to extenuate. P. 48. [587] The fullest account of this conference, and of all that passed as to the comprehension of the presbyterians, is to be read in Baxter, whom Neal has abridged. Some allowance must, of course, be made for the resentment of Baxter; but his known integrity makes it impossible to discredit the main part of his narration. Nor is it necessary to rest on the evidence of those who may be supposed to have the prejudices of dissenters. For Bishop Burnet admits that all the concern which seemed to employ the prelates' minds, was not only to make an alteration on the presbyterians' account, but to straiten the terms of conformity far more than before the war. Those, however, who would see what can be said by writers of high-church principles, may consult Kennet's _History of Charles II._ p. 252, or Collier, p. 878. One little anecdote may serve to display the spirit with which the Anglicans came to the conference. Upon Baxter's saying that their proceedings would alienate a great part of the _nation_, Stearne, Bishop of Carlisle, observed to his associates: "He will not say _kingdom_, lest he should acknowledge a king." Baxter, p. 338. This was a very malignant reflection on a man who was well known never to have been of the republican party. It is true that Baxter seems to have thought, in 1659, that Richard Cromwell would have served the turn better than Charles Stuart; and, as a presbyterian, he thought very rightly. See p. 207, and part iii. p. 71. But, preaching before the parliament, April 30, 1660, he said it was none of our differences whether we should be loyal to our king; on that all were agreed. P. 217. [588] _Life of Clarendon_, 147. He observes that the alterations made did not reduce one of the opposite party to the obedience of the church. Now, in the first place, he could not know this; and, in the next, he conceals from the reader that, on the whole matter, the changes made in the liturgy were more likely to disgust than to conciliate. Thus the puritans having always objected to the number of saints' days, the bishops added a few more; and the former having given very plausible reasons against the apocryphal lessons in the daily service, the others inserted the legend of Bel and the Dragon, for no other purpose than to show contempt of their scruples. The alterations may be seen in Rennet's _Register_, 585. The most important was the restoration of a rubric inserted in the communion service under Edward VI., but left out by Elizabeth, declaring against any corporal presence in the Lord's supper. This gave offence to some of those who had adopted that opinion, especially the Duke of York, and perhaps tended to complete his alienation from the Anglican church. Burnet, i. 183. [589] 13 and 14 Car. 2, c. iv. § 3. [590] _Life of Clarendon_, 152; Burnet, 256. Morley, afterwards Bishop of Winchester, was engaged just before the restoration in negotiating with the presbyterians. They stuck out for the negative voice of the council of presbyters, and for the validity of their ordinations. _Clar. State Papers_, 727. He had two schemes to get over the difficulty; one to pass them over _sub silentio_; the other, a hypothetical re-ordination, on the supposition that something might have been wanting before, as the church of Rome practises about re-baptization. The former is a curious expedient for those who pretended to think presbyterian ordinations really null. _Id._ 738. [591] The day fixed upon suggested a comparison which, though severe, was obvious. A modern writer has observed on this, "They were careful not to remember that the same day, and for the same reason, because the tithes were commonly due at Michaelmas, had been appointed for the former ejectment, when four times as many of the loyal clergy were deprived for fidelity to their sovereign." Southey's _Hist. of the Church_, ii. 467. That the day was chosen in order to deprive the incumbent of a whole year's tithes, Mr. Southey has learned from Burnet; and it aggravates the cruelty of the proceeding--but where has he found his precedent? The Anglican clergy were ejected for refusing the covenant at no one definite period, as, on recollection, Mr. S. would be aware; nor can I find any one parliamentary ordinance in Husband's Collection that mentions St. Bartholomew's day. There was a precedent indeed in that case, which the government of Charles did not choose to follow. One-fifth of the income had been reserved for the dispossessed incumbents. [592] Journals, April 26. This may perhaps have given rise to a mistake we find in Neal, 624, that the act of uniformity only passed by 186 to 180. There was no division at all upon the bill except that I have mentioned. [593] The report of the conference (Lords' Journals, 7th May) is altogether rather curious. [594] Lords' Journals, 25th and 27th July 1663; Ralph, 58. [595] Neal, 625-636. Baxter told Burnet, as the latter says (p. 185), that not above 300 would have resigned, had the terms of the king's declaration been adhered to. The blame, he goes on, fell chiefly on Sheldon. But Clarendon was charged with entertaining the presbyterians with good words, while he was giving way to the bishops. See also p. 268. Baxter puts the number of the deprived at 1800. _Life_, 384. And it has generally been reckoned about 2000; though Burnet says it has been much controverted. If indeed we can rely on Calamy's account of the ejected ministers, abridged by Palmer under the title of _The Nonconformist's Memorial_, the number must have been full 2400. Kennet, however (_Register_, 807), notices great mistakes of Calamy in respect only to one diocese, that of Peterborough. Probably both in this collection, and in that of Walker on the other side, as in all martyrologies, there are abundant errors; but enough will remain to afford memorable examples of conscientious suffering; and we cannot read without indignation Rennet's endeavours, in the conclusion of this volume, to extenuate the praise of the deprived presbyterians by captious and unfair arguments. [596] See Clarendon's feeble attempt to vindicate the king from the charge of breach of faith. 157. [597] A list of these, published in 1660, contains more than 170 names. Neal, 590. [598] Sir Kenelm Digby was supposed to be deep in a scheme that the catholics, in 1649, should support the commonwealth with all their power, in return for liberty of religion. Carte's _Letters_, i. 216 _et post_. We find a letter from him to Cromwell in 1656 (Thurloe, iv. 591) with great protestations of duty. [599] See Lords' Journals, June and July 1661, or extracts from them in Kennet's _Register_, 469, etc., 620, etc., and 798, where are several other particulars worthy of notice. Clarendon, 143, explains the failure of this attempt at a partial toleration (for it was only meant as to the exercise of religious rites in private houses) by the persevering opposition of the Jesuits to the oath of allegiance, to which the lay catholics, and generally the secular priests, had long ceased to make objection. The house had voted that the indulgence should not extend to Jesuits, and that they would not alter the oaths of allegiance or supremacy. The Jesuits complained of the distinction taken against them; and asserted, in a printed tract (Kennet, _ubi supra_), that since 1616 they had been inhibited by their superiors from maintaining the pope's right to depose sovereigns. See also Butler's _Mem. of Catholics_, ii. 27; iv. 142; and Burnet, i. 194. [600] The suspicions against Charles were very strong in England before the restoration, so as to alarm his emissaries: "Your master," Mordaunt writes to Ormond, Nov. 10, 1659, "is utterly ruined as to his interest here in whatever party, if this be true." Carte's _Letters_, ii. 264, and _Clar. State Papers_, iii. 602. But an anecdote related in Carte's _Life of Ormond_, ii. 255, and Harris's _Lives_, v. 54, which has obtained some credit, proves, if true, that he had embraced the Roman catholic religion as early as 1659, so as even to attend mass. This cannot be reckoned out of question; but the tendency of the king's mind before his return to England is to be inferred from all his behaviour. Kennet (_Complete Hist. of Eng._ iii. 237) plainly insinuates that the project for restoring popery began at the treaty of the Pyrenees; and see his _Register_, p. 852. [601] 13 Car. 2, c. 1. [602] Burnet, i. 179. [603] _Life of Clarendon_, 159. He intimates that this begot a coldness in the bishops towards himself, which was never fully removed. Yet he had no reason to complain of them on his trial. See, too, Pepys's _Diary_, Sept. 3, 1662. [604] _Parl. Hist._ 257. [605] Baxter intimates (429) that some disagreement arose between the presbyterians and independents as to the toleration of popery, or rather, as he puts it, as to the active concurrence of the protestant dissenters in accepting such a toleration as should include popery. The latter, conformably to their general principles, were favourable to it; but the former would not make themselves parties to any relaxation of the penal laws against the church of Rome, leaving the king to act as he thought fit. By this stiffness it is very probable that they provoked a good deal of persecution from the court, which they might have avoided by falling into its views of a general indulgence. [606] _Parl. Hist._ 260. An adjournment had been moved, and lost by 161 to 119. Journals, 25 Feb. [607] 19 Feb. Baxter, p. 429. [608] Journals, 17 and 28 March 1663; _Parl. Hist._ 264. Burnet, 274, says the declaration of indulgence was usually ascribed to Bristol, but in fact proceeded from the king, and that the opposition to it in the house was chiefly made by the friends of Clarendon. The latter tells us in his _Life_, 189, that the king was displeased at the insolence of the Romish party, and gave the judges general orders to convict recusants. The minister and historian either was, or pretended to be, his master's dupe; and, if he had any suspicions of what was meant as to religion (as he must surely have had), is far too loyal to hint them. Yet the one circumstance he mentions soon after, that the Countess of Castlemaine suddenly declared herself a catholic, was enough to open his eyes and those of the world. The Romish partisans assumed the tone of high loyalty, as exclusively characteristic of their religion; but affected, at this time, to use great civility towards the church of England. A book, entitled _Philanax Anglicus_, published under the name of Bellamy, the second edition of which is in 1663, after a most flattering dedication to Sheldon, launches into virulent abuse of the presbyterians and of the reformation in general, as founded on principles adverse to monarchy. This indeed was common with the ultra or high-church party; but the work in question, though it purports to be written by a clergyman, is manifestly a shaft from the concealed bow of the Roman Apollo. [609] See proofs of this in Ralph, 53; Rapin, p. 78. There was in 1663 a trifling insurrection in Yorkshire, which the government wished to have been more serious, so as to afford a better pretext for strong measures; as may be collected from a passage in a letter of Bennet to the Duke of Ormond, where he says, "The country was in a greater readiness to prevent the disorders than perhaps were to be wished; but it being the effect of their own care, rather than his majesty's commands, it is the less to be censured." Clarendon, 218, speaks of this as an important and extensive conspiracy; and the king dwelt on it in his next speech to the parliament. _Parl. Hist._ 289. [610] 16 Car. 2, c. 4. A similar bill had passed the Commons in July 1663, but hung some time in the upper house, and was much debated; the Commons sent up a message (an irregular practice of those times) to request their lordships would expedite this and some other bills. The king seems to have been displeased at this delay; for he told them at their prorogation, that he had expected some bills against conventicles and distempers in religion, as well as the growth of popery, and should himself present some at their next meeting. _Parl. Hist._ 288. Burnet observes, that to empower a justice of peace to convict without a jury, was thought a great breach on the principles of the English constitution. 285. [611] P. 221. [612] 17 Car. 2, c. 2. [613] Burnet; Baxter, Part III. p. 2; Neal, p. 652. [614] Burnet: Baxter. [615] Mr. Locke, in the "Letter from a Person of Quality to his Friend in the Country," printed in 1675 (see it in his works, or in _Parliamentary History_, vol. iv. Appendix, No. 5), says it was lost by three votes, and mentions the persons. But the numbers in the Journals, October 27, 1665, appear to be 57 to 51. Probably he meant that those persons might have been expected to vote the other way. [616] A pamphlet, with Baxter's name subscribed, called "Fair Warning, or XXV Reasons against Toleration and Indulgence of Popery," 1663, is a pleasant specimen of this _argumentum ab inferno_. "Being there is but one safe way to salvation, do you think that the protestant way is that way, or is it not? If it be not, why do you live in it? If it be, how can you find in your heart to give your subjects liberty to go another way? Can you, in your conscience, give them leave to go on in that course in which, in your conscience, you think you could not be saved?" Baxter, however, does not mention this little book in his life; nor does he there speak violently about the toleration of Romanists. [617] The clergy had petitioned the House of Commons in 1664, _inter alia_, "That for the better observation of the Lord's day, and for the promoting of conformity, you would be pleased to advance the pecuniary mulct of twelve pence for each absence from divine service, in proportion to the degree, quality, and ability of the delinquent; that so the penalty may be of force sufficient to conquer the obstinacy of the nonconformists." Wilkin's _Concilia_, iv. 580. Letters from Sheldon to the commissary of the diocese of Canterbury, in 1669 and 1670, occur in the same collection (pp. 588, 589) directing him to inquire about conventicles; and if they cannot be restrained by ecclesiastical authority, to apply to the next justice of peace in order to put them down. A proclamation appears also from the king, enjoining magistrates to do this. In 1673, the archbishop writes a circular to his suffragans, directing them to proceed against such as keep schools without licence. P. 593. See in the _Somers Tracts_, vii. 586, a "true and faithful narrative" of the severities practised against nonconformists about this time. Baxter's _Life_ is also full of proofs of persecution; but the most complete register is in Calamy's account of the ejected clergy. [618] Pepys observes, 12 July 1667, "how everybody nowadays reflect upon Oliver and commend him, what brave things he did, and made all the neighbour princes fear him." [619] The _Mémoires de Grammont_ are known to everybody; and are almost unique in their kind, not only for the grace of their style and the vivacity of their pictures, but for the happy ignorance in which the author seems to have lived, that any one of his readers could imagine that there are such things as virtue and principle in the world. In the delirium of thoughtless voluptuousness they resemble some of the memoirs about the end of Louis XV.'s reign, and somewhat later; though I think, even in these, there is generally some effort, here and there, at moral censure, or some affectation of sensibility. _They_, indeed, have always an awful moral; and in the light portraits of the court of Versailles (such, sometimes, as we might otherwise almost blush to peruse) we have before us the handwriting on the wall, the winter whirlwind hushed in its grim repose, and expecting its prey, the vengeance of an oppressed people and long-forbearing Deity. No such retribution fell on the courtiers of Charles II.; but they earned in their own age, what has descended to posterity, though possibly very indifferent to themselves, the disgust and aversion of all that was respectable among mankind. [620] This was carried on a division by 172 to 102. Journals, 25 November 1665. It was to be raised "in a regulated subsidiary way, reducing the same to a certainty in all counties, so as no person, for his real or personal estate, be exempted." They seem to have had some difficulty in raising this enormous subsidy. _Parliamentary History_, 305. [621] 17 Car. II. c. 1. The same clause is repeated next year, and has become regular. [622] _Life of Clarendon_, p. 315; Hatsell's _Precedents_, iii. 80. [623] _Life of Clarendon_, p. 368. Burnet observes it was looked upon at the time as a great innovation. P. 335. [624] Pepys's _Diary_ has lately furnished some things worthy to be extracted. "Mr. W. and I by water to Whitehall, and there at Sir George Carteret's lodgings Sir William Coventry met; and we did debate the whole business of our accounts to the parliament; where it appears to us that the charge of the war from Sept. 1, 1664, to this Michaelmas will have been but £3,200,000, and we have paid in that time somewhat about £2,200,000, so that we owe about £900,000; but our method of accounting, though it cannot, I believe, be far wide from the mark, yet will not abide a strict examination, if the parliament should be troublesome. Here happened a pretty question of Sir William Coventry, whether this account of ours will not put my lord treasurer to a difficulty to tell what is become of all the money the parliament have given in this time for the war, which hath amounted to about £4,000,000, which nobody there could answer; but I perceive they did doubt what his answer could be." Sept. 23, 1666.--The money granted the king for the war he afterwards (Oct. 10) reckons at £5,590,000, and the debt £900,000. The charge stated only at £3,200,000. "So what is become of all this sum, £2,390,000!" He mentions afterwards (Oct. 8) the proviso in the poll-tax bill, that there shall be a committee of nine persons to have the inspection on oath of all the accounts of the money given and spent for the war, "which makes the king and court mad; the king having given order to my lord chamberlain to send to the play-houses and brothels, to bid all the parliament men that were there to go to the parliament presently; but it was carried against the court by thirty or forty voices." It was thought, he says (Dec. 12) that above £400,000 had gone into the privy purse since the war. [625] _Life of Clarendon_, p. 392. [626] 19 and 20 Car. II. c. 1. Burnet, p. 374. They reported unaccounted balances of £1,509,161, besides much that was questionable in the payments. But, according to Ralph, p. 177, the commissioners had acted with more technical rigour than equity, surcharging the accountants for all sums not expended since the war began, though actually expended for the purposes of preparation. [627] Burnet, p. 130. Southampton left all the business of the treasury, according to Burnet, p. 131, in the hands of Sir Philip Warwick, "a weak but incorrupt man." The king, he says, chose to put up with his contradiction rather than make him popular by dismissing him. But in fact, as we see by Clarendon's instance, the king retained his ministers long after he was displeased with them. Southampton's remissness and slowness, notwithstanding his integrity, Pepys says, was the cause of undoing the nation as much as anything; "yet, if I knew all the difficulties he has lain under, and his instrument Sir Philip Warwick, I might be of another mind." May 16, 1667.--He was willing to have done something, Clarendon tells us (p. 415) to gratify the presbyterians; on which account, the bishops thought him not enough affected to the church. His friend endeavours to extenuate this heinous sin of tolerant principles. [628] The behaviour of Lord Clarendon on this occasion was so extraordinary, that no credit could have been given to any other account than his own. The Duke of York, he says, informed the king of the affection and friendship that had long been between him and the young lady; that they had been long contracted, and that she was with child; and therefore requested his majesty's leave that he might publicly marry her. The Marquis of Ormond by the king's order communicated this to the chancellor, who "broke out into an immoderate passion against the wickedness of his daughter; and said, with all imaginable earnestness, that as soon as he came home, he would turn her out of his house as a strumpet to shift for herself, and would never see her again. They told him that his passion was too violent to administer good counsel to him; that they thought that the duke was married to his daughter, and that there were other measures to be taken than those which the disorder he was in had suggested to him. Whereupon he fell into new commotions; and said, If that were true, he was well prepared to advise what was to be done; that he had much rather his daughter should be the duke's whore than his wife: in the former case, nobody could blame him for the resolution he had taken, for he was not obliged to keep a whore for the greatest prince alive; and the indignity to himself he would submit to the good pleasure of God. But, if there were any reason to suspect the other, he was ready to give a positive judgment, in which he hoped their lordships would concur with him, that the king should immediately cause the woman _to be sent to the Tower and cast into a dungeon_, under so strict a guard that no person living should be admitted to come to her; and then that _an act of parliament should be immediately passed for cutting off her head, to which he would not only give his consent, but would very willingly be the first man that should propose it_. And whoever knew the man, will believe that he said all this very heartily." Lord Southampton, he proceeds to inform us, on the king's entering the room at the time, said very naturally, that the chancellor was mad, and had proposed such extravagant things that he was no more to be consulted with. This, however, did not bring him to his senses; for he repeated his strange proposal of "sending her presently to the Tower, and the rest;" imploring the king to take this course, as the only expedient that could free him from the evils that this business would otherwise bring upon him. That any man of sane intellects should fall into such an extravagance of passion, is sufficiently wonderful; that he should sit down in cool blood several years afterwards to relate it, is still more so; and perhaps we shall carry our candour to an excess, if we do not set down the whole scene to overacted hypocrisy. Charles II., we may be very sure, could see it in no other light. And here I must take notice, by the way, of the singular observation the worthy editor of Burnet has made: "King Charles's conduct in this business was excellent throughout; that of Clarendon _worthy an ancient Roman_." We have indeed a Roman precedent for subduing the sentiments of nature rather than permitting a daughter to incur disgrace through the passions of the great; but I think Virginius would not quite have understood the feelings of Clarendon. Such virtue was more like what Montesquieu calls "l'héroïsme de l'esclavage," and was just fit for the court of Gondar. But with all this violence that he records of himself, he deviates greatly from the truth: "The king (he says) afterwards spoke every day about it, and told the chancellor that he must behave himself wisely, for that the thing was remediless, and that his majesty knew that they were married; which would quickly appear to all men who knew that nothing could be done upon it. In this time the chancellor had conferred with his daughter, without anything of indulgence, and not only discovered that they were unquestionably married, but _by whom, and who were present at it, who would be ready to avow it_; which pleased him not, though it diverted him from using some of that rigour which he intended. And he saw no other remedy could be applied but that which he had proposed to the king, who thought of nothing like it." _Life of Clarendon_, 29 _et post_. Every one would conclude from this, that a marriage had been solemnised if not before their arrival in England, yet before the chancellor had this conference with his daughter. It appears, however, from the Duke of York's declaration in the books of the privy council, quoted by Ralph, p. 40, that he was contracted to Ann Hyde on the 24th of November 1659, at Breda; and after that time lived with her as his wife, though very secretly; he married her 3rd Sept. 1660, according to the English ritual, Lord Ossory giving her away. The first child was born Oct. 22, 1660. Now whether the contract were sufficient to constitute a valid marriage, will depend on two things; first, upon the law existing at Breda; secondly, upon the applicability of what is commonly called the rule of the _lex loci_, to a marriage between such persons according to the received notions of English lawyers in that age. But, even admitting all this, it is still manifest that Clarendon's expressions point to an actual celebration, and are consequently intended to mislead the reader. Certain it is, that at the time the contract seems to have been reckoned only an honorary obligation. James tells us himself (Macpherson's _Extracts_, p. 17) that he promised to marry her; and "though when he asked the king for his leave, he refused and dissuaded him from it, yet at last he opposed it no more, and the duke married her privately, and owned it some time after." His biographer, writing from his own manuscript, adds, "it may well be supposed that my lord chancellor did his part, but with great caution and circumspection, to soften the king in that matter which in every respect seemed so much for his own advantage." _Life of James_, 387. And Pepys inserts in his diary, Feb. 23, 1661, "Mr. H. told me how my lord chancellor had lately got the Duke of York and duchess, and her woman, my Lord Ossory and a doctor, to make oath before most of the judges of the kingdom, concerning all the circumstances of their marriage. And, in fine, it is confessed that they were not fully married till about a month or two before she was brought to bed; but that they were contracted long before, and [were married] time enough for the child to be legitimate. But I do not hear that it was put to the judges to determine so or not." He had said before that Lord Sandwich told him (17th Oct. 1660) "the king wanted him [the duke] to marry her, but he would not." This seems at first sight inconsistent with what James says himself. But at this time, though the private marriage had really taken place, he had been persuaded by a most infamous conspiracy of some profligate courtiers that the lady was of a licentious character, and that Berkeley, afterwards Lord Falmouth, had enjoyed her favours. _Life of Clarendon_, 33. It must be presumed that those men knew only of a contract which they thought he could break. Hamilton, in the _Memoirs of Grammont_, speaks of this transaction with his usual levity, though the parties showed themselves as destitute of spirit as of honour and humanity. Clarendon, we must believe (and the most favourable hypothesis for him is to give up his veracity), would not permit his daughter to be made the victim of a few perjured debauchees, and of her husband's fickleness or credulity. [629] Hamilton mentions this as the current rumour of the court, and Burnet has done the same. But Clarendon himself denies that he had any concern in it, or any acquaintance with the parties. He wrote in too humble a strain to the king on the subject. _Life of Clar._ p. 454. [630] Burnet says that Southampton had come into a scheme of obtaining £2,000,000 as the annual revenue; which was prevented by Clarendon, lest it should put the king out of need of parliaments. This the king found out, and hated him mortally for it. P. 223. It is the fashion to discredit all Burnet says. But observe what we may read in Pepys: "Sir W. Coventry did tell me it as the wisest thing that was ever said to the king by any statesman of his time; and it was by my lord treasurer that is dead, whom, I find, he takes for a very great statesman, that when the king did show himself forward for passing the act of indemnity, he did advise the king that he would hold his hand in doing it, till he had got his power restored that had been diminished by the late times, and his revenue settled in such a manner as he might depend upon himself without resting upon parliaments, and then pass it. But my lord chancellor, who thought he could have the command of parliaments for ever, because for the king's sake they were awhile willing to grant all the king desired, did press for its being done; and so it was, and the king from that time able to do nothing with the parliament almost." March 20, 1669. Rari quippe boni! Neither Southampton nor Coventry make the figure in this extract we should wish to find; yet who were their superiors for integrity and patriotism under Charles II.? Perhaps Pepys, like most gossiping men, was not always correct. [631] Macpherson's _Extracts from Life of James_, 17, 18. Compare Innes's _Life of James_, published by Clarke, i. 391, 393. In the former work it is said that Clarendon, upon Venner's insurrection, advised that the guards should not be disbanded. But this seems to be a mistake in copying: for Clarendon read the Duke of York. Pepys, however, who heard all the gossip of the town, mentions the year after, that the chancellor thought of raising an army, with the duke as general. Dec. 22, 1661. [632] _Ibid._ [633] The Earl of Bristol, with all his constitutional precipitancy, made a violent attack on Clarendon, by exhibiting articles of treason against him in the House of Lords in 1663; believing, no doubt, that the schemes of the intriguers were more mature, and the king more alienated, than was really the case; and thus disgraced himself at court instead of his enemy. _Parl. Hist._ 276; _Life of Clar._ 209. Before this time Pepys had heard that the chancellor had lost the king's favour, and that Bristol, with Buckingham and two or three more, ruled him. May 15, 1663. [634] A motion to refer the heads of charge against Clarendon to a committee was lost by 194 to 128; Seymour and Osborne telling the noes, Birch and Clarges the ayes. Commons' Journals, Nov. 6, 1667. These names show how parties ran, Seymour and Osborne being high-flying cavaliers, and Birch a presbyterian. A motion that he be impeached for treason on the first article was lost by 172 to 103, the two former tellers for the ayes: Nov. 9. In the Harleian MS. 881, we have a copious account of the debates on this occasion, and a transcript in No. 1218. Sir Heneage Finch spoke much against the charge of treason; Maynard seems to have done the same. A charge of secret correspondence with Cromwell was introduced merely _ad invidiam_, the prosecutors admitting that it was pardoned by the act of indemnity, but wishing to make the chancellor plead that: Maynard and Hampden opposed it, and it was given up out of shame without a vote. Vaughan, afterwards chief justice, argued that counselling the king to govern by a standing army was treason at common law, and seems to dispute what Finch laid down most broadly, that there can be no such thing as a common law treason; relying on a passage in Glanvill, where "seductio domini regis" is said to be treason. Maynard stood up for the opposite doctrine. Waller and Vaughan argued that the sale of Dunkirk was treason, but the article passed without declaring it to be so; nor would the word have appeared probably in the impeachment, if a young Lord Vaughan had not asserted that he could prove Clarendon to have betrayed the king's councils, on which an article to that effect was carried by 161 to 89. Garraway and Littleton were forward against the chancellor; but Coventry seems to have taken no great part. See Pepys's _Diary_, Dec. 3rd and 6th, 1667. Baxter also says that the presbyterians were by no means strenuous against Clarendon, but rather the contrary, fearing that worse might come for the country, as giving him credit for having kept off military government. Baxter's _Life_, part iii. 21. This is very highly to the honour of that party whom he had so much oppressed, if not betrayed. "It was a notable providence of God, he says, that this man, who had been the great instrument of state, and done almost all, and had dealt so cruelly with the nonconformists should thus by his own friends be cast out and banished; while those that he had persecuted were the most moderate in his cause, and many for him. And it was a great ease that befel the good people throughout the land by his dejection. For his way was to decoy men into conspiracies or to pretend plots, and upon the rumour of a plot the innocent people of many countries were laid in prison, so that no man knew when he was safe. Whereas since then, though laws have been made more and more severe, yet a man knoweth a little better what he is to expect, when it is by a law that he is to be tried." Sham plots there seem to have been; but it is not reasonable to charge Clarendon with inventing them. Ralph, 122. [635] In his wrath against the proviso inserted by Sir George Downing, as above mentioned, in the bill of supply, Clarendon told him, as he confesses, that the king could never be well served, while fellows of his condition were admitted to speak as much as they had a mind; and that in the best times such presumptions had been punished with imprisonment by the lords of the council, without the king's taking notice of it. 321. The king was naturally displeased at this insolent language towards one of his servants, a man who has filled an eminent station, and done services, for a suggestion intended to benefit the revenue. And it was a still more flagrant affront to the House of Commons, of which Downing was a member, and where he had proposed this clause, and induced the house to adopt it. Coventry told Pepys "many things about the chancellor's dismissal, not fit to be spoken; and yet not any unfaithfulness to the king, but _instar omnium_, that he was so great at the council-board and in the administration of matters there was no room for anybody to propose any remedy for what was amiss, or to compass anything, though never so good for the kingdom, unless approved of by the chancellor; he managing all things with that greatness which now will be removed, that the king may have the benefit of others' advice." Sept. 2, 1667. His own memoirs are full of proofs of this haughtiness and intemperance. He set himself against Sir William Coventry, and speaks of a man as able and virtuous as himself with marked aversion. See too _Life of James_, 398. Coventry, according to this writer (431), was the chief actor in Clarendon's impeachment, but this seems to be a mistake; though he was certainly desirous of getting him out of place. The king, Clarendon tells us (438), pretended that the anger of parliament was such, and their power too, as it was not in his power to save him. The fallen minister desired him not to fear the power of parliament, "which was more or less, or nothing, as he pleased to make it." So preposterous as well as unconstitutional a way of talking could not but aggravate his unpopularity with that great body he pretended to contemn. [636] _State Trials_, vi. 318; _Parl. Hist._ [637] Ludlow, iii. 118, 165 _et post_; Clarendon's _Life_, 290; Burnet, 226; _Oeuvres de Louis XIV._ ii. 204. [638] Harris's _Lives_, v. 28; _Biogr. Brit._ art. Harrington; _Life of James_, 396; _Somers Tracts_, vii. 530, 534. [639] See Kennet's _Register_, 757; Ralph, 78 _et post_; Harris's _Lives_, v. 182, for proofs of this. [640] _Mem. of Hutchinson_, 303. It seems, however, that he was suspected of some concern with an intended rising in 1663, though nothing was proved against him. _Miscellanea Aulica_, 319. [641] _Life of Clarendon_, 424. Pepys says, the parliament was called together "against the Duke of York's mind flatly, who did rather advise the king to raise money as he pleased; and against the chancellor, who told the king that Queen Elizabeth did do all her business in 1588 without calling a parliament, and so might he do for anything he saw." June 25, 1667. He probably got this from his friend Sir W. Coventry. [642] Ralph, 78, etc. The overture came from Clarendon, the French having no expectation of it. The worst was that, just before, he had dwelt in a speech to parliament on the importance of Dunkirk. This was on May 19, 1662. It appears by Louis XIV.'s own account, which certainly does not tally with some other authorities, that Dunkirk had been so great an object with Cromwell, that it was the stipulated price of the English alliance. Louis, however, was vexed at this, and determined to recover it at any price: il est certain que je ne pouvois trop donner pour racheter Dunkerque. He sent d'Estrades accordingly to England in 1661, directing him to make this his great object. Charles told the ambassador that Spain had made him great offers, but he would rather treat with France. Louis was delighted at this; and though the sum asked was considerable, 5,000,000 livres, he would not break off, but finally concluded the treaty for 4,000,000, payable in three years; nay, saved 500,000 without its being found out by the English, for a banker having offered them prompt payment at this discount, they gladly accepted it; but this banker was a person employed by Louis himself, who had the money ready. He had the greatest anxiety about this affair; for the city of London deputed the lord mayor to offer any sum so that Dunkirk might not be alienated. _Oeuvres de Louis XIV._ i. 167. If this be altogether correct, the King of France did not fancy he had made so bad a bargain; and indeed, with his projects, if he had the money to spare, he could not think so. Compare the _Mémoires d'Estrades_, and the supplement to the third volume of _Clarendon State Papers_. The historians are of no value, except as they copy from some of these original testimonies. [643] _Life of Clar._ 78; _Life of James_, 393. [644] See Supplement to third volume of _Clarendon State Papers_, for abundant evidence of the close connection between the courts of France and England. The former offered bribes to Lord Clarendon so frequently and unceremoniously, that one is disposed to think he did not show so much indignation at the first overture as he ought to have done. See pp. 1, 4, 13. The aim of Louis was to effect the match with Catharine. Spain would have given a great portion with any protestant princess, in order to break it. Clarendon asked, on his master's account, for £50,000, to avoid application to parliament. P. 4. The French offered a secret loan, or subsidy perhaps, of 2,000,000 livres for the succour of Portugal. This was accepted by Clarendon (p. 15); but I do not find anything more about it. [645] As no one, who regards with attachment the present system of the English constitution, can look upon Lord Clarendon as an excellent minister, or a friend to the soundest principles of civil and religious liberty; so no man whatever can avoid considering his incessant deviations from the great duties of an historian as a moral blemish in his character. He dares very frequently to say what is not true, and what he must have known to be otherwise; he does not dare to say what is true. And it is almost an aggravation of this reproach, that he aimed to deceive posterity, and poisoned at the fountain a stream from which another generation was to drink. No defence has ever been set up for the fidelity of Clarendon's history; nor can men, who have sifted the authentic materials, entertain much difference of judgment in this respect; though, as a monument of powerful ability and impressive eloquence, it will always be read with that delight which we receive from many great historians, especially the ancient, independent of any confidence in their veracity. One more instance, before we quit Lord Clarendon for ever, may here be mentioned of his disregard for truth. The strange tale of a fruitless search after the restoration for the body of Charles I. is well known. Lord Southampton and Lindsey, he tells us, who had assisted at their master's obsequies in St. George's chapel at Windsor, were so overcome with grief, that they could not recognise the place of interment; and, after several vain attempts, the search was abandoned in despair. _Hist. of Rebellion_, vi. 244. Whatever motive the noble historian may have had for this story, it is absolutely incredible that any such ineffectual search was ever made. Nothing could have been more easy than to have taken up the pavement of the choir. But this was unnecessary. Some at least of the workmen employed must have remembered the place of the vault. Nor did it depend on them; for Sir Thomas Herbert, who was present, had made at the time a note of the spot, "just opposite the eleventh stall on the king's side." Herbert's _Memoirs_, 142. And we find from Pepys's _Diary_, Feb. 26, 1666, that "he was shown, at Windsor, where the late king was buried, and King Henry VIII. and my Lady Seymour." In which spot, as is well known, the royal body has twice been found, once in the reign of Anne, and again in 1813. [646] The tenor of Clarendon's life and writings almost forbids any surmise of pecuniary corruption. Yet this is insinuated by Pepys, on the authority of Evelyn, April 27 and May 16, 1667. But the one was gossiping, though shrewd; and the other feeble, though accomplished. Lord Dartmouth, who lived in the next age, and whose splenetic humour makes him no good witness against anybody, charges him with receiving bribes from the main instruments and promoters of the late troubles, and those who had plundered the royalists, which enabled him to build his great mansion in Piccadilly; asserting that it was full of pictures belonging to families who had been despoiled of them. "And whoever had a mind to see what great families had been plundered during the civil war, might find some remains either at Clarendon House or at Cornbury." Note on Burnet, 88. The character of Clarendon, as a minister, is fairly and judiciously drawn by Macpherson, _Hist. of England_, 98; a work by no means so full of a tory spirit as has been supposed. [647] _Parl. Hist._ 347. [648] The Lords refused to commit the Earl of Clarendon on a general impeachment of high treason; and in a conference with the lower house, denied the authority of the precedent in Strafford's case, which was pressed upon them. It is remarkable that the managers of this conference for the Commons vindicated the first proceedings of the long parliament, which shows a considerable change in their tone since 1661. They do not, however, seem to have urged, what is an apparent distinction between the two precedents, that the commitment of Strafford was on a verbal request of Pym in the name of the Commons, without alleging any special matter of treason, and consequently irregular and illegal; while the 16th article of Clarendon's impeachment charges him with betraying the king's counsels to his enemies; which, however untrue, evidently amounted to treason within the statute of Edward III.; so that the objection of the Lords extended to committing any one for treason upon impeachment, without all the particularity required in an indictment. This showed a very commendable regard to the liberty of the subject; and from this time we do not find the vague and unintelligible accusations, whether of treason or misdemeanour, so usual in former proceedings of parliament. _Parl. Hist._ 387. A protest was signed by Buckingham, Albemarle, Bristol, Arlington, and others of their party, including three bishops (Cosins, Croft, and another), against the refusal of their house to commit Clarendon upon the general charge. A few, on the other hand, of whom Hollis is the only remarkable name, protested against the bill of banishment. "The most fatal blow (says James) the king gave himself to his power and prerogative, was when he sought aid from the House of Commons to destroy the Earl of Clarendon: by that he put that house again in mind of their impeaching privilege, which had been wrested out of their hands by the restoration; and when ministers found they were like to be left to the censure of the parliament, it made them have a greater attention to court an interest there than to pursue that of their princes, from whom they hoped not for so sure a support." _Life of James_, 593. The king, it is said, came rather slowly into the measure of impeachment; but became afterwards so eager, as to give the attorney-general, Finch, positive orders to be active in it, observing him to be silent. Carte's _Ormond_, ii. 353. Buckingham had made the king great promises of what the Commons would do, in case he would sacrifice Clarendon. [649] Kennet, 293, 300. Burnet; Baxter, 23. The design was to act on the principle of the declaration of 1660, so that presbyterian ordinations should pass _sub modo_. Tillotson and Stillingfleet were concerned in it. The king was at this time exasperated against the bishops for their support of Clarendon. Burnet, _ibid._; Pepys's _Diary_, 21st Dec. 1667. And he had also deeper motives. [650] _Parl. Hist._ 421; Ralph, 170; Carte's _Life of Ormond_, ii. 362. Sir Thomas Littleton spoke in favour of the comprehension, as did Seymour and Waller; all of them enemies of Clarendon, and probably connected with the Buckingham faction: but the church party was much too strong for them. Pepys says the Commons were furious against the project; it was said that whoever proposed new laws about religion must do it with a rope about his neck. Jan. 10, 1668. This is the first instance of a triumph obtained by the church over the Crown in the House of Commons. Ralph observes upon it, "It is not for nought that the words church and state are so often coupled together, and that the first has so insolently usurped the precedency of the last." [651] _Parl. Hist._ 422. [652] France retained Lille, Tournay, Douay, Charleroi, and other places by the treaty. The allies were surprised, and not pleased at the choice Spain made of yielding these towns in order to save Franche Comté. Temple's _Letters_, 97. In fact, they were not on good terms with that power; she had even a project, out of spite to Holland, of giving up the Netherlands entirely to France, in exchange for Rousillon, but thought better of it on cooler reflection. [653] Dalrymple, ii. 5 _et post_. Temple was not treated very favourably by most of the ministers on his return from concluding the triple alliance: Clifford said to a friend, "Well, for all this noise, we must yet have another war with the Dutch before it be long." Temple's _Letters_, 123. [654] Dalrymple, ii. 12. [655] Burnet. [656] _Life of Clarendon_, 357. [657] _Life of Clarendon_, 355. [658] _State Trials_, vi. 807. One of the oddest things connected with this fire was, that some persons of the fanatic party had been hanged, in April, for a conspiracy to surprise the Tower, murder the Duke of Albemarle and others, and then declare for an equal division of lands, etc. In order to effect this, the city was to be fired, and the guards secured in their quarters and for this the 3rd of September following was fixed upon as a lucky day. This is undoubtedly to be read in the _London Gazette_ for April 30, 1666; and it is equally certain that the city was in flames on the 3rd of September. But, though the coincidence is curious, it would be very weak to think it more than a coincidence, for the same reason as applies to the suspicion which the catholics incurred; that the mere destruction of the city could not have been the object of any party, and that nothing was attempted to manifest any further design. [659] Macpherson's _Extracts_, 38, 49; _Life of James_, 426. [660] He tells us himself that it began by his reading a book written by a learned bishop of the church of England to clear her from schism in leaving the Roman communion, which had a contrary effect on him; especially when, at the said bishop's desire, he read an answer to it. This made him inquisitive about the grounds and manner of the reformation. _After his return_, Heylin's _History of the Reformation_, and the preface to Hooker's _Ecclesiastical Polity_, thoroughly convinced him that neither the church of England, nor Calvin, nor any of the reformers, had power to do what they did; and he was confident, he said, that whosoever reads those two books with attention and without prejudice, would be of the same opinion. _Life of James_, i. 629. The Duchess of York embraced the same creed as her husband, and, as he tells us, without knowledge of his sentiments, but one year before her death in 1670. She left a paper at her death containing the reasons for her change. See it in Kennet, 320. It is plain that she, as well as the duke, had been influenced by the Romanising tendency of some Anglican divines. [661] Macpherson, 50; _Life of James_, 441. [662] De Witt was apprised of the intrigue between France and England as early as April 1669, through a Swedish agent at Paris. Temple, 179. Temple himself, in the course of that year, became convinced that the king's views were not those of his people, and reflects severely on his conduct in a letter, December 24, 1669. P. 206. In September 1670, on his sudden recall from the Hague, De Witt told him his suspicions of a clandestine treaty. 241. He was received on his return coldly by Arlington, and almost with rudeness by Clifford. 244. They knew he would never concur in the new projects. But in 1682, during one of the intervals when Charles was playing false with his brother Louis, the latter, in revenge, let an Abbé Primi, in a history of the Dutch war, publish an account of the whole secret treaty, under the name of the Count de St. Majolo. This book was immediately suppressed at the instance of the English ambassador; and Primi was sent for a short time to the Bastile. But a pamphlet, published in London just after the Revolution, contains extracts from it. Dalrymple, ii. 80; _Somers Tracts_, viii. 13; _Harl. Misc._ ii. 387; _Oeuvres de Louis XIV._ vi. 476. It is singular that Hume should have slighted so well authenticated a fact, even before Dalrymple's publication of the treaty; but I suppose he had never heard of Primi's book. The original treaty has lately been published by Dr. Lingard, from Lord Clifford's cabinet. [663] Dalrymple, ii. 22. [664] _Id._ 23; _Life of James_, 442. [665] The tenor of the article leads me to conclude, that these troops were to be landed in England at all events, in order to secure the public tranquillity without waiting for any disturbance. [666] P. 49. [667] Bolingbroke has a remarkable passage as to this in his _Letters on History_ (Letter VII.): it may be also alluded to by others. The full details, however, as well as more authentic proofs, were reserved, as I believe, for the publication of _Oeuvres de Louis XIV._, where they will be found in vol. ii. 403. The proposal of Louis to the emperor, in 1667, was, that France should have the Pays Bas, Franche Comté, Milan, Naples, the ports of Tuscany, Navarre, and the Philippine Islands; Leopold taking all the rest. The obvious drift of this was, that France should put herself in possession of an enormous increase of power and territory, leaving Leopold to fight as he could for Spain and America, which were not likely to submit peaceably. The Austrian cabinet understood this; and proposed that they should exchange their shares. Finally, however, it was concluded on the king's terms, except that he was to take Sicily instead of Milan. One article of this treaty was, that Louis should keep what he had conquered in Flanders; in other words, the terms of the treaty of Aix la Chapelle. The ratifications were exchanged 29th Feb. 1668. Louis represents himself as more induced by this prospect than by any fear of the triple alliance, of which he speaks slightingly, to conclude the peace of Aix la Chapelle. He thought that he should acquire a character for moderation which might be serviceable to him, "dans les grands accroissemens que ma fortune pourroit recevoir." Vol. ii. p. 369. [668] Dalrymple, 31-57. James gives a different account of this; and intimates that Henrietta, whose visit to Dover he had for this reason been much against, prevailed on the king to change his resolution, and to begin with the war. He gained over Arlington and Clifford. The duke told them it would quite defeat the catholic design, because the king must run in debt, and be at the mercy of his parliament. They answered that, if the war succeeded, it was not much matter what people suspected. P. 450. This shows that they looked on force as necessary to compass the design, and that the noble resistance of the Dutch, under the Prince of Orange, was that which frustrated the whole conspiracy. "The duke," it is again said (p. 453), "was in his own judgment against entering into this war before his majesty's power and authority in England had been better fixed and less precarious, as it would have been, if the private treaty first agreed on had not been altered." The French court, however, was evidently right in thinking that, till the conquest of Holland should be achieved, the declaration of the king's religion would only weaken him at home. It is gratifying to find the heroic character of our glorious deliverer displaying itself among these foul conspiracies. The Prince of Orange came over to England in 1670. He was then very young; and his uncle, who was really attached to him, would have gladly associated him in the design; indeed it had been agreed that he was to possess part of the United Provinces in sovereignty. But Colbert writes that the king had found him so zealous a Dutchman and protestant, that he could not trust him with any part of the secret. He let him know, however, as we learn from Burnet, 382, that he had himself embraced the Romish faith. [669] Dalrymple, 57. [670] P. 68; _Life of James_, 444. In this work it is said that even the Duchess of Orleans had no knowledge of the real treaty; and that the other originated with Buckingham. But Dalrymple's authority seems far better in this instance. [671] P. 84, etc. [672] P. 23. [673] P. 52. The reluctance to let the Duke of Buckingham into the secret seems to prove that more was meant than a toleration of the Roman catholic religion, towards which he had always been disposed, and which was hardly a secret at court. [674] Pp. 62, 84. [675] P. 81. [676] P. 33. [677] "The generality of the church of England men was not at that time very averse to the catholic religion; many that went under that name had their religion to choose, and went to church for company's sake." _Life of James_, p. 442. [678] _Life of James_, ibid. [679] Macpherson's _Extracts_, p. 51. [680] 22 Car. 2, c. 1; Kennet, p. 306. The zeal in the Commons against popery tended to aggravate this persecution of the dissenters. They had been led by some rascally clergymen to believe the absurdity that there was a good understanding between the two parties. [681] Burnet, p. 272. [682] Baxter, pp. 74, 86; Kennet, p. 311. See a letter of Sheldon, written at this time, to the bishops of his province, urging them to persecute the nonconformists. Harris's _Life of Charles II._, p. 106. Proofs also are given by this author of the manner in which some, such as Lamplugh and Ward, responded to their primate's wishes. Sheldon found a panegyrist quite worthy of him in his chaplain Parker, afterwards Bishop of Oxford. This notable person has left a Latin history of his own time, wherein he largely commemorates the archbishop's zeal in molesting the dissenters, and praises him for defeating the scheme of comprehension. P. 25. I observe, that the late excellent editor of Burnet has endeavoured to slide in a word for the primate (note on vol. i. p. 243), on the authority of that history by Bishop Parker, and of Sheldon's Life in the _Biographia Britannica_. It is lamentable to rest on such proofs. I should certainly not have expected that, in Magdalen College, of all places, the name of Parker would have been held in honour; and as to the _Biographia_, laudatory as it is of primates in general (save Tillotson, whom it depreciates), I find, on reference, that its praise of Sheldon's virtues is grounded on the authority of his epitaph in Croydon church. [683] Baxter, 87. [684] This is asserted by Burnet, and seems to be acknowledged by the Duke of York. The court endeavoured to mitigate the effect of the bill brought into the Commons, in consequence of Coventry's injury; and so far succeeded, that instead of a partial measure of protection for the members of the House of Commons, as originally designed (which seemed, I suppose, to carry too marked a reference to the particular transaction), it was turned into a general act, making it a capital felony to wound with intention to maim or disfigure. But the name of the Coventry act has always clung to this statute. _Parl. Hist._ 461. [685] The king promised the bankers interest at six per cent., instead of the money due to them from the exchequer; but this was never paid till the latter part of William's reign. It may be considered as the beginning of our national debt. It seems to have been intended to follow the shutting up of the exchequer with a still more unwarrantable stretch of power, by granting an injunction to the creditors who were suing the bankers at law. According to North (_Examen_, pp. 38, 47), Lord-Keeper Bridgman resigned the great seal rather than comply with this; and Shaftesbury himself, who succeeded him, did not venture, if I understand the passage rightly, to grant an absolute injunction. The promise of interest for their money seems to have been given instead of this more illegal and violent remedy. [686] _Parl. Hist._ 515; Kennet, 313. [687] Bridgman, the lord-keeper, resigned the great seal, according to Burnet, because he would not put it to the declaration of indulgence, and was succeeded by Shaftesbury. [688] _Parl. Hist._ 517. The presbyterian party do not appear to have supported the declaration, at least Birch spoke against it: Waller, Seymour, Sir Robert Howard in its favour. Baxter says, the nonconformists were divided in opinion as to the propriety of availing themselves of the declaration. P. 99. Birch told Pepys, some years before, that he feared some would try for extending the toleration to papists; but the sober party would rather be without it than have it on those terms. Pepys's _Diary_, Jan. 31, 1668; _Parl. Hist._ 546, 561. Father Orleans says, that Ormond, Arlington, and some more advised the king to comply; the duke and the rest of the council urging him to adhere, and Shaftesbury, who had been the first mover of the project, pledging himself for its success; there being a party for the king among the Commons, and a force on foot enough to daunt the other side. It was suspected that the women interposed, and prevailed on the king to withdraw his declaration. Upon this, Shaftesbury turned short round, provoked at the king's want of steadiness, and especially at his giving up the point about issuing writs in the recess of parliament. [689] 25 Car. II. c. 2; Burnet, p. 490. [690] The test act began in a resolution (February 28, 1673) that all who refuse to take the oaths and receive the sacrament, according to the rites of the church of England, shall be incapable of all public employments. _Parl. Hist._ 556. The court party endeavoured to oppose the declaration against transubstantiation, but of course in vain. _Id._ 561, 592. The king had pressed his brother to receive the sacrament, in order to avoid suspicion, which he absolutely refused; and this led, he says, to the test. _Life of James_, p. 482. But his religion was long pretty well known, though he did not cease to conform till 1672. [691] _Parl. Hist._ 526-585. These debates are copied from those published by Anchitel Grey, a member of the Commons for thirty years; but his notes, though collectively most valuable, are sometimes so brief and ill expressed, that it is hardly possible to make out their meaning. The court and church party, or rather some of them, seem to have much opposed this bill for the relief of protestant dissenters. [692] Commons' Journals, 28 and 29 March 1673; Lords' Journals, 24 and 29 March. The Lords were so slow about this bill that the lower house, knowing an adjournment to be in contemplation, sent a message to quicken them, according to a practice not unusual in this reign. Perhaps, on an attentive consideration of the report on the conference (March 29) it may appear that the Lords' amendments had a tendency to let in popish, rather than to favour protestant, dissenters. Parker says that this act of indulgence was defeated by his great hero, Archbishop Sheldon, who proposed that the nonconformists should acknowledge the war against Charles I. to be unlawful. _Hist. sui temporis_, p. 203 of the translation. [693] It was proposed, as an instruction to the committee on the test act, that a clause should be introduced, rendering nonconformists incapable of sitting in the House of Commons. This was lost by 163 to 107; but it was resolved that a distinct bill should be brought in for that purpose. 10 March 1673. [694] Kennet, p. 318. [695] Commons' Journals, 20 Jan. 1674; _Parl. Hist._ 608, 625, 649; Burnet. CHAPTER XII EARL OF DANBY'S ADMINISTRATION--DEATH OF CHARLES II. The period of Lord Danby's administration, from 1673 to 1678, was full of chicanery and dissimulation on the king's side, of increasing suspiciousness on that of the Commons. Forced by the voice of parliament, and the bad success of his arms, into peace with Holland, Charles struggled hard against a co-operation with her in the great confederacy of Spain and the empire to resist the encroachments of France on the Netherlands. Such was in that age the strength of the barrier fortresses, and so heroic the resistance of the Prince of Orange, that, notwithstanding the extreme weakness of Spain, there was no moment in that war, when the sincere and strenuous intervention of England would not have compelled Louis XIV. to accept the terms of the treaty of Aix la Chapelle. It was the treacherous attachment of Charles II. to French interests that brought the long congress of Nimeguen to an unfortunate termination; and, by surrendering so many towns of Flanders as laid the rest open to future aggression, gave rise to the tedious struggles of two more wars.[696] _Opposition in the commons._--In the behaviour of the House of Commons during this period, previously at least to the session of 1678, there seems nothing which can incur much reprehension from those who reflect on the king's character and intentions; unless it be that they granted supplies rather too largely, and did not sufficiently provide against the perils of the time. But the House of Lords contained unfortunately an invincible majority for the court, ready to frustrate any legislative security for public liberty. Thus the habeas corpus act, first sent up to that house in 1674, was lost there in several successive sessions. The Commons therefore testified their sense of public grievances, and kept alive an alarm in the nation by resolutions and addresses, which a phlegmatic reader is sometimes too apt to consider as factious or unnecessary. If they seem to have dwelt more, in some of these, on the dangers of religion, and less on those of liberty, than we may now think reasonable, it is to be remembered that the fear of popery has always been the surest string to touch for effect on the people; and that the general clamour against that religion was all covertly directed against the Duke of York, the most dangerous enemy of every part of our constitution. _Corruption of the parliament._--The real vice of this parliament was not intemperance, but corruption. Clifford, and still more Danby, were masters in an art practised by ministers from the time of James I. (and which indeed can never be unknown where there exists a court and a popular assembly), that of turning to their use the weapons of mercenary eloquence by office, or blunting their edge by bribery.[697] Some who had been once prominent in opposition, as Sir Robert Howard and Sir Richard Temple, became placemen; some, like Garraway and Sir Thomas Lee, while they continued to lead the country party, took money from the court for softening particular votes;[698] many, as seems to have been the case with Reresby, were won by promises, and the pretended friendship of men in power.[699] On two great classes of questions, France and popery, the Commons broke away from all management; nor was Danby unwilling to let his master see their indocility on these subjects. But, in general, till the year 1678, by dint of the means before mentioned, and partly no doubt through the honest conviction of many that the king was not likely to employ any minister more favourable to the protestant religion and liberties of Europe, he kept his ground without any insuperable opposition from parliament.[700] _Character of the Earl of Danby._--The Earl of Danby had virtues as an English minister, which serve to extenuate some great errors and an entire want of scrupulousness in his conduct. Zealous against the church of Rome and the aggrandisement of France, he counteracted, while he seemed to yield to, the prepossessions of his master. If the policy of England before the peace of Nimeguen was mischievous and disgraceful, it would evidently have been far more so, had the king and Duke of York been abetted by this minister in their fatal predilection for France. We owe to Danby's influence, it must ever be remembered, the marriage of Princess Mary to the Prince of Orange, the seed of the revolution and the act of settlement--a courageous and disinterested counsel, which ought not to have proved the source of his greatest misfortunes.[701] But we cannot pretend to say that he was altogether as sound a friend to the constitution of his country, as to her national dignity and interests. I do not mean that he wished to render the king absolute. But a minister, harassed and attacked in parliament, is tempted to desire the means of crushing his opponents, or at least of augmenting his own sway. The mischievous bill that passed the House of Lords in 1675, imposing as a test to be taken by both houses of parliament, as well as all holding beneficed offices, a declaration that resistance to persons commissioned by the king was in all cases unlawful, and that they would never attempt any alteration in the government in church or state, was promoted by Danby, though it might possibly originate with others.[702] It was apparently meant as a bone of contention among the country party, in which presbyterians and old parliamentarians were associated with discontented cavaliers. Besides the mischief of weakening this party, which indeed the minister could not fairly be expected to feel, nothing could have been devised more unconstitutional, or more advantageous to the court's projects of arbitrary power. It is certainly possible that a minister who, aware of the dangerous intentions of his sovereign or his colleagues, remains in the cabinet to thwart and countermine them, may serve the public more effectually than by retiring from office; but he will scarcely succeed in avoiding some material sacrifices of integrity, and still less of reputation. Danby, the ostensible adviser of Charles II., took on himself the just odium of that hollow and suspicious policy which appeared to the world. We know indeed that he was concerned, against his own judgment, in the king's secret receipt of money from France, the price of neutrality, both in 1676 and in 1678, the latter to his own ruin.[703] Could the opposition, though not so well apprised of these transactions as we are, be censured for giving little credit to his assurances of zeal against that power; which, though sincere in him, were so little in unison with the disposition of the court? Had they no cause to dread that the great army suddenly raised in 1677, on pretence of being employed against France, might be turned to some worse purposes more congenial to the king's temper?[704] _Connection of the popular party with France--Its motives on both sides._--This invincible distrust of the court is the best apology for that which has given rise to so much censure, the secret connections formed by the leaders of opposition with Louis XIV., through his ambassadors Barillon and Rouvigny, about the spring of 1678.[705] They well knew that the king's designs against their liberties had been planned in concert with France, and could hardly be rendered effectual without her aid in money, if not in arms.[706] If they could draw over this dangerous ally from his side, and convince the King of France that it was not his interest to crush their power, they would at least frustrate the suspected conspiracy, and secure the disbanding of the army; though at a great sacrifice of the continental policy which they had long maintained, and which was truly important to our honour and safety. Yet there must be degrees in the scale of public utility; and, if the liberties of the people were really endangered by domestic treachery, it was ridiculous to think of saving Tournay and Valenciennes at the expense of all that was dearest at home. This is plainly the secret of that unaccountable, as it then seemed, and factious opposition, in the year 1678; which cannot be denied to have served the ends of France, and thwarted the endeavours of Lord Danby and Sir William Temple to urge on the uncertain and half-reluctant temper of the king into a decided course of policy.[707] Louis, in fact, had no desire to see the King of England absolute over his people, unless it could be done so much by his own help as to render himself the real master of both. In the estimate of kings, or of such kings as Louis XIV., all limitations of sovereignty, all co-ordinate authority of estates and parliaments, are not only derogatory to the royal dignity, but injurious to the state itself, of which they distract the councils and enervate the force. Great armies, prompt obedience, unlimited power over the national resources, secrecy in council, rapidity in execution, belong to an energetic and enlightened despotism: we should greatly err in supposing that Louis XIV. was led to concur in projects of subverting our constitution from any jealousy of its contributing to our prosperity. He saw, on the contrary, in the perpetual jarring of kings and parliaments, a source of feebleness and vacillation in foreign affairs, and a field for intrigue and corruption. It was certainly far from his design to see a republic, either in name or effect, established in England; but an unanimous loyalty, a spontaneous submission to the court, was as little consonant to his interests; and, especially if accompanied with a willing return of the majority to the catholic religion, would have put an end to his influence over the king, and still more certainly over the Duke of York.[708] He had long been sensible of the advantage to be reaped from a malcontent party in England. In the first years after the restoration, he kept up a connection with the disappointed commonwealth's men, while their courage was yet fresh and unsubdued; and in the war of 1665 was very nearly exciting insurrections both in England and Ireland.[709] These schemes of course were suspended, as he grew into closer friendship with Charles, and saw a surer method of preserving an ascendancy over the kingdom. But, as soon as the Princess Mary's marriage, contrary to the King of England's promise, and to the plain intent of all their clandestine negotiations, displayed his faithless and uncertain character to the French cabinet, they determined to make the patriotism, the passion, and the corruption of the House of Commons minister to their resentment and ambition. The views of Lord Hollis and Lord Russell in this clandestine intercourse with the French ambassador were sincerely patriotic and honourable: to detach France from the king; to crush the Duke of York and popish faction; to procure the disbanding of the army, the dissolution of a corrupted parliament, the dismissal of a bad minister.[710] They would indeed have displayed more prudence in leaving these dark and dangerous paths of intrigue to the court which was practised in them. They were concerting measures with the natural enemy of their country, religion, honour, and liberty; whose obvious policy was to keep the kingdom disunited that it might be powerless; who had been long abetting the worst designs of our own court, and who could never be expected to act against popery and despotism, but for the temporary ends of his ambition. Yet, in the very critical circumstances of that period, it was impossible to pursue any course with security; and the dangers of excessive circumspection and adherence to general rules may often be as formidable as those of temerity. The connection of the popular party with France may very probably have frustrated the sinister intentions of the king and duke, by compelling the reduction of the army, though at the price of a great sacrifice of European policy.[711] Such may be, with unprejudiced men, a sufficient apology for the conduct of Lord Russell and Lord Hollis, the most public-spirited and high-minded characters of their age, in this extraordinary and unnatural alliance. It would have been unworthy of their virtue to have gone into so desperate an intrigue with no better aim than that of ruining Lord Danby; and of this I think we may fully acquit them. The nobleness of Russell's disposition beams forth in all that Barillon has written of their conferences. Yet, notwithstanding the plausible grounds of his conduct, we can hardly avoid wishing that he had abstained from so dangerous an intercourse, which led him to impair, in the eyes of posterity, by something more like faction than can be ascribed to any other part of his parliamentary life, the consistency and ingenuousness of his character.[712] _Doubt as to the acceptance of money by the popular party._--I have purposely mentioned Lord Russell and Lord Hollis apart from others who were mingled in the same intrigues of the French ambassador, both because they were among the first with whom he tampered, and because they are honourably distinguished by their abstinence from all pecuniary remuneration, which Hollis refused, and which Barillon did not presume to offer to Russell. It appears however from this minister's accounts of the money he had expended in this secret service of the French Crown, that, at a later time, namely about the end of 1680, many of the leading members of opposition, Sir Thomas Littleton, Mr. Garraway, Mr. Hampden, Mr. Powle, Mr. Sacheverell, Mr. Foley, received sums of 500 or 300 guineas, as testimonies of the King of France's munificence and favour. Among others, Algernon Sidney, who, though not in parliament, was very active out of it, is more than once mentioned. Chiefly because the name of Algernon Sidney had been associated with the most stern and elevated virtue, this statement was received with great reluctance; and many have ventured to call the truth of these pecuniary gratifications in question. This is certainly a bold surmise; though Barillon is known to have been a man of luxurious and expensive habits, and his demands for more money on account of the English court, which continually occur in his correspondence with Louis, may lead to a suspicion that he would be in some measure a gainer by it. This however might possibly be the case without actual peculation. But it must be observed that there are two classes of those who are alleged to have received presents through his hands; one, of such as were in actual communication with himself; another, of such as Sir John Baber, a secret agent, had prevailed upon to accept it. Sidney was in the first class; but, as to the second, comprehending Littleton, Hampden, Sacheverell, in whom it is as difficult to suspect pecuniary corruption as in him, the proof is manifestly weaker, depending only on the assertion of an intriguer that he had paid them the money. The falsehood either of Baber or Barillon would acquit these considerable men. Nor is it to be reckoned improbable that persons employed in this clandestine service should be guilty of a fraud, for which they could evidently never be made responsible. We have indeed a remarkable confession of Coleman, the famous intriguer executed for the popish plot, to this effect. He deposed in his examination before the House of Commons, in November 1678, that he had received last session of Barillon £2500 to be distributed among members of parliament, which he had converted to his own use.[713] It is doubtless possible that Coleman having actually expended this money in the manner intended, bespoke the favour of those whose secret he kept by taking the discredit of such a fraud on himself. But it is also possible that he spoke the truth. A similar uncertainty hangs over the transactions of Sir John Baber. Nothing in the parliamentary conduct of the above-mentioned gentlemen in 1680 corroborates the suspicion of an intrigue with France, whatever may have been the case in 1678. I must fairly confess however that the decided bias of my own mind is on the affirmative side of this question; and that principally because I am not so much struck, as some have been, by any violent improbability in what Barillon wrote to his court on the subject. If indeed we were to read that Algernon Sidney had been bought over by Louis XIV. or Charles II. to assist in setting up absolute monarchy in England, we might fairly oppose our knowledge of his inflexible and haughty character, of his zeal, in life and death, for republican liberty. But there is, I presume, some moral distinction between the acceptance of a bribe to desert or betray our principles and that of a trifling present for acting in conformity to them. The one is, of course, to be styled corruption; the other is repugnant to a generous and delicate mind, but too much sanctioned by the practice of an age far less scrupulous than our own, to have carried with it any great self-reproach or sense of degradation. It is truly inconceivable that men of such property as Sir Thomas Littleton or Mr. Foley should have accepted 300 or 500 guineas, the sums mentioned by Barillon, as the price of apostasy from those political principles to which they owed the esteem of their country, or of an implicit compliance with the dictates of France. It is sufficiently discreditable to the times in which they lived, that they should have accepted so pitiful a gratuity; unless indeed we should in candour resort to an hypothesis which seems not absurd, that they agreed among themselves not to offend Louis, or excite his distrust, by a refusal of this money. Sidney indeed was, as there is reason to think, a distressed man; he had formerly been in connection with the court of France,[714] and had persuaded himself that the countenance of that power might one day or other be afforded to his darling scheme of a commonwealth; he had contracted a dislike to the Prince of Orange, and consequently to the Dutch alliance, from the same governing motive: is it strange that one so circumstanced should have accepted a small gratification from the King of France which implied no dereliction of his duty as an Englishman, or any sacrifice of political integrity? And I should be glad to be informed by the idolaters of Algernon Sidney's name, what we know of him from authentic and contemporary sources which renders this incredible. _Secret treaties of the king with France._--France, in the whole course of these intrigues, held the game in her hands. Mistress of both parties, she might either embarrass the king through parliament, if he pretended to an independent course of policy, or cast away the latter, when he should return to his former engagements. Hence, as early as May 1678, a private treaty was set on foot between Charles and Louis, by which the former obliged himself to keep a neutrality, if the allies should not accept the terms offered by France, to recall all his troops from Flanders within two months, to disband most of his army and not to assemble his parliament for six months; in return he was to receive 6,000,000 livres. This was signed by the king himself on May 27; none of his ministers venturing to affix their names.[715] Yet at this time he was making outward professions of an intention to carry on the war. Even in this secret treaty, so thorough was his insincerity, he meant to evade one of its articles, that of disbanding his troops. In this alone he was really opposed to the wishes of France; and her pertinacity in disarming him seems to have been the chief source of those capricious changes of his disposition, which we find for three or four years at this period.[716] Louis again appears not only to have mistrusted the king's own inclinations after the Prince of Orange's marriage, and his ability to withstand the eagerness of the nation for war, but to have apprehended he might become absolute by means of his army, without standing indebted for it to his ancient ally. In this point therefore he faithfully served the popular party. Charles used every endeavour to evade this condition; whether it were that he still entertained hopes of attaining arbitrary power through intimidation, or that, dreading the violence of the House of Commons, and ascribing it rather to a republican conspiracy than to his own misconduct, he looked to a military force as his security. From this motive we may account for his strange proposal to the French king of a league in support of Sweden, by which he was to furnish fifteen ships and 10,000 men, at the expense of France, during three years, receiving six millions for the first year, and four for each of the two next. Louis, as is highly probable, betrayed this project to the Dutch government; and thus frightened them into that hasty signature of the treaty of Nimeguen, which broke up the confederacy and accomplished the immediate objects of his ambition. No longer in need of the court of England, he determined to punish it for that duplicity, which none resent more in others than those who are accustomed to practise it. He refused Charles the pension stipulated by the private treaty, alleging that its conditions had not been performed; and urged on Montagu, with promises of indemnification, to betray as much as he knew of that secret, in order to ruin Lord Danby.[717] _Fall of Danby_--_His impeachment._--The ultimate cause of this minister's fall may thus be deduced from the best action of his life; though it ensued immediately from his very culpable weakness in aiding the king's base inclinations towards a sordid bargaining with France. It is well known that the famous letter to Montagu, empowering him to make an offer of neutrality for the price of 6,000,000 livres, was not only written by the king's express order, but that Charles attested this with his own signature in a postscript. This bears date five days after an act had absolutely passed to raise money for carrying on the war; a circumstance worthy of particular attention, as it both puts an end to every pretext or apology which the least scrupulous could venture to urge in behalf of this negotiation, but justifies the whig party of England in an invincible distrust, an inexpiable hatred, of so perfidious a cozener as filled the throne. But as he was beyond their reach, they exercised a constitutional right in the impeachment of his responsible minister. For responsible he surely was; though, strangely mistaking the obligations of an English statesman, Danby seems to fancy in his printed defence that the king's order would be a sufficient warrant to justify obedience in any case not literally unlawful. "I believe," he says, "there are very few subjects but would take it ill not to be obeyed by their servants; and their servants might as justly expect their master's protection for their obedience." The letter to Montagu, he asserts, "was written by the king's command, upon the subject of peace and war, wherein his majesty alone is at all times sole judge, and ought to be obeyed not only by any of his ministers of state, but by all his subjects."[718] Such were, in that age, the monarchical or tory maxims of government, which the impeachment of this minister contributed in some measure to overthrow. As the king's authority for the letter to Montagu was an undeniable fact, evidenced by his own handwriting, the Commons in impeaching Lord Danby went a great way towards establishing the principle that no minister can shelter himself behind the throne by pleading obedience to the orders of his sovereign. He is answerable for the justice, the honesty, the utility of all measures emanating from the Crown, as well as for their legality; and thus the executive administration is, or ought to be, subordinate, in all great matters of policy, to the superintendence and virtual control of the two Houses of Parliament. It must at the same time be admitted that, through the heat of honest indignation and some less worthy passions on the one hand, through uncertain and crude principles of constitutional law on the other, this just and necessary impeachment of the Earl of Danby was not so conducted as to be exempt from all reproach. The charge of high treason for an offence manifestly amounting only to misdemeanour, with the purpose, not perhaps of taking the life of the accused, but at least of procuring some punishment beyond the law,[719] the strange mixture of articles, as to which there was no presumptive proof, or which were evidently false, such as concealment of the popish plot, gave such a character of intemperance and faction to these proceedings, as may lead superficial readers to condemn them altogether.[720] The compliance of Danby with the king's corrupt policy had been highly culpable, but it was not unprecedented; it was even conformable to the court standard of duty; and as it sprung from too inordinate a desire to retain power, it would have found an appropriate and adequate chastisement in exclusion from office. We judge perhaps somewhat more favourably of Lord Danby than his contemporaries at that juncture were warranted to do; but even then he was rather a minister to be pulled down than a man to be severely punished. His one great and undeniable service to the protestant and English interests should have palliated a multitude of errors. Yet this was the mainspring and first source of the intrigue that ruined him. _Questions arising on the impeachment_--_Danby's commitment to the Tower._--The impeachment of Lord Danby brought forward several material discussions on that part of our constitutional law, which should not be passed over in this place. 1. As soon as the charges presented by the Commons at the bar of the upper house had been read, a motion was made that the earl should withdraw; and another afterwards, that he should be committed to the Tower: both of which were negatived by considerable majorities.[721] This refusal to commit on a charge of treason had created a dispute between the two houses in the instance of Lord Clarendon.[722] In that case, however, one of the articles of impeachment did actually contain an unquestionable treason. But it was contended with much force on the present occasion that, if the Commons, by merely using the word traitorously, could alter the character of offences which, on their own showing, amounted only to misdemeanours, the boasted certainty of the law in matters of treason would be at an end; and unless it were meant that the Lords should pass sentence in such a case against the received rules of law, there could be no pretext for their refusing to admit the accused to bail. Even in Strafford's case, which was a condemned precedent, they had a general charge of high treason upon which he was committed; while the offences alleged against Danby were stated with particularity, and upon the face of the articles could not be brought within any reasonable interpretation of the statutes relating to treason. The House of Commons faintly urged a remarkable clause in the act of Edward III., which provides that, in case of any doubt arising as to the nature of an offence charged to amount to treason, the judges should refer it to the sentence of parliament; and maintained that this invested the two houses with a declaratory power to extend the penalties of the law to new offences which had not been clearly provided for in its enactments. But, though something like this might possibly have been in contemplation with the framers of that statute, and precedents were not absolutely wanting to support the construction, it was so repugnant to the more equitable principles of criminal law which had begun to gain ground, that even the heat of faction did not induce the Commons to insist upon it. They may be considered however as having carried their point; for, though the prorogation and subsequent dissolution of the present parliament ensued so quickly that nothing more was done in the matter, yet when the next House of Commons revived the impeachment, the Lords voted to take Danby into custody without any further objection.[723] It ought not to be inferred from hence, that they were wrong in refusing to commit; nor do I conceive, notwithstanding the latter precedent of Lord Oxford, that any rule to the contrary is established. In any future case it ought to be open to debate, whether articles of impeachment pretending to contain a charge of high treason do substantially set forth overt acts of such a crime; and, if the House of Lords shall be of opinion, either by consulting the judges or otherwise, that no treason is specially alleged, they should, notwithstanding any technical words, treat the offence as a misdemeanour, and admit the accused to bail.[724] 2. _Pardon pleaded in bar._--A still more important question sprung up as to the king's right of pardon upon a parliamentary impeachment. Danby, who had absconded on the unexpected revival of these proceedings in the new parliament, finding that an act of attainder was likely to pass against him in consequence of his flight from justice, surrendered himself to the usher of the black rod; and, on being required to give in his written answer to the charges of the Commons, pleaded a pardon, secretly obtained from the king, in bar of the prosecution.[725] The Commons resolved that the pardon was illegal and void, and ought not to be pleaded in bar of the impeachment of the Commons of England. They demanded judgment at the Lords' bar against Danby, as having put in a void plea. They resolved, with that culpable violence which distinguished this and the succeeding House of Commons, in order to deprive the accused of the assistance of counsel, that no commoner whatsoever should presume to maintain the validity of the pardon pleaded by the Earl of Danby without their consent, on pain of being accounted a betrayer of the liberties of the Commons of England.[726] They denied the right of the bishops to vote on the validity of this pardon. They demanded the appointment of a committee from both houses to regulate the form and manner of proceeding on this impeachment, as well as on that of the five lords accused of participation in the popish plot. The upper house gave some signs of a vacillating and temporising spirit, not by any means unaccountable. They acceded, after a first refusal, to the proposition of a committee, though manifestly designed to encroach on their own exclusive claim of judicature.[727] But they came to a resolution that the spiritual Lords had a right to sit and vote in parliament in capital cases, until judgment of death shall be pronounced.[728] The Commons of course protested against this vote;[729] but a prorogation soon dropped the curtain over their differences; and Danby's impeachment was not acted upon in the next parliament. _Votes of bishops._--There seems to be no kind of pretence for objecting to the votes of the bishops on such preliminary questions as may arise in an impeachment of treason. It is true that ancient custom has so far ingrafted the provisions of the ecclesiastical law on our constitution, that they are bound to withdraw when judgment of life or death is pronounced; though even in this they always do it with a protestation of their right to remain. This, once claimed as a privilege of the church, and reluctantly admitted by the state, became, in the lapse of ages, an exclusion and badge of inferiority. In the constitutions of Clarendon, under Henry II., it is enacted, that the bishops and others holding spiritual benefices "in capite" should give their attendance at trials in parliament, till it come to sentence of life or member. This, although perhaps too ancient to have authority as statute law, was a sufficient evidence of the constitutional usage, where nothing so material could be alleged on the other side. And, as the original privilege was built upon nothing better than the narrow superstitions of the canon law, there was no reasonable pretext for carrying the exclusion of the spiritual lords farther than certain and constant precedents required. Though it was true, as the enemies of Lord Danby urged, that by voting for the validity of his pardon, they would in effect determine the whole question in his favour, yet there seemed no serious reasons, considering it abstractedly from party views, why they should not thus indirectly be restored for once to a privilege, from which the prejudices of former ages alone had shut them out. The main point in controversy, whether a general or special pardon from the king could be pleaded in answer to an impeachment of the Commons so as to prevent any further proceedings in it, never came to a regular decision. It was evident that a minister who had influence enough to obtain such an indemnity, might set both houses of parliament at defiance; the pretended responsibility of the Crown's advisers, accounted the palladium of our constitution, would be an idle mockery, if not only punishment could be averted, but enquiry frustrated. Even if the king could remit the penalties of a guilty minister's sentence upon impeachment, it would be much, that public indignation should have been excited against him, that suspicion should have been turned into proof, that shame and reproach, irremissible by the great seal, should avenge the wrongs of his country. It was always to be presumed that a sovereign, undeceived by such a judicial inquiry, or sensible to the general voice it roused, would voluntarily, or at least prudently, abandon an unworthy favourite. Though it might be admitted that long usage had established the royal prerogative of granting pardons under the great seal, even before trial, and that such pardons might be pleaded in bar (a prerogative indeed which ancient statutes, not repealed, though gone into disuse, or rather in no time acted upon, had attempted to restrain), yet we could not infer that it extended to cases of impeachment. In ordinary criminal proceedings by indictment the king was before the court as prosecutor, the suit was in his name; he might stay the process at his pleasure, by entering a "noli prosequi;" to pardon, before or after judgment, was a branch of the same prerogative; it was a great constitutional trust, to be exercised at his discretion. But in an appeal or accusation of felony, brought by the injured party, or his next of blood, a proceeding wherein the king's name did not appear, it was undoubted that he could not remit the capital sentence. The same principle seemed applicable to an impeachment at the suit of the Commons of England, demanding justice from the supreme tribunal of the other house of parliament. It could not be denied that James had remitted the whole sentence upon Lord Bacon. But impeachments were so unusual at that time, and the privileges of parliament so little out of dispute, that no great stress could be laid on this precedent. Such must have been the course of arguing, strong on political, and specious on legal grounds, which induced the Commons to resist the plea put in by Lord Danby. Though this question remained in suspense on the present occasion, it was finally decided by the legislature in the act of settlement; which provides that no pardon under the great seal of England be pleadable to an impeachment of the Commons in parliament.[730] These expressions seem tacitly to concede the Crown's right of granting a pardon after sentence; which, though perhaps it could not well be distinguished in point of law from a pardon pleadable in bar, stands on a very different footing, as has been observed above, with respect to constitutional policy. Accordingly, upon the impeachment of the six peers who had been concerned in the rebellion of 1715, the House of Lords after sentence passed, having come to a resolution on debate that the king had a right to reprieve in cases of impeachment, addressed him to exercise that prerogative as to such of them as should deserve his mercy; and three of the number were in consequence pardoned.[731] 3. _Abatement of impeachments by dissolution._--The impeachment of Danby first brought forward another question of hardly less magnitude, and remarkable as one of the few great points in constitutional law, which have been discussed and finally settled within the memory of the present generation: I mean the continuance of an impeachment by the Commons from one parliament to another. Though this has been put at rest by a determination altogether consonant to maxims of expediency, it seems proper in this place to show briefly the grounds upon which the argument on both sides rested. In the earlier period of our parliamentary records, the business of both houses, whether of a legislative or judicial nature, though often very multifarious, was despatched, with the rapidity natural to comparatively rude times, by men impatient of delay, unused to doubt, and not cautious in the proof of facts or attentive to the subtleties of reasoning. The session, generally speaking, was not to terminate till the petitions in parliament for redress had been disposed of, whether decisively or by reference to some more permanent tribunal. Petitions for alteration of the law, presented by the Commons, and assented to by the Lords, were drawn up into statutes by the king's council just before the prorogation or dissolution. They fell naturally to the ground, if the session closed before they could be submitted to the king's pleasure. The great change that took place in the reign of Henry VI., by passing bills complete in their form through the two houses instead of petitions, while it rendered manifest to every eye that distinction between legislative and judicial proceedings which the simplicity of older times had half concealed, did not affect this constitutional principle. At the close of a session, every bill then in progress through parliament became a nullity, and must pass again through all its stages before it could be tendered for the royal assent. No sort of difference existed in the effect of a prorogation and a dissolution; it was even maintained that a session made a parliament. During the fifteenth and sixteenth centuries, writs of error from inferior courts to the House of Lords became far less usual than in the preceding age; and when they occurred, as error could only be assigned on a point of law appearing on the record, they were quickly decided with the assistance of the judges. But, when they grew more frequent, and especially when appeals from the chancellor, requiring often a tedious examination of depositions, were brought before the Lords, it was found that a sudden prorogation might often interrupt a decision; and the question arose, whether writs of error, and other proceedings of a similar nature, did not, according to precedent or analogy, cease, or in technical language abate, at the close of a session. An order was accordingly made by the house on March 11, 1673, that "the Lords committees for privileges should inquire whether an appeal to this house either by writ of error or petition, from the proceedings of any other court being depending, and not determined in one session of parliament, continue in statu quo unto the next session of parliament, without renewing the writ of error or petition, or beginning all anew." The committee reported on the 29th of March, after mis-reciting the order of reference to them in a very remarkable manner, by omitting some words and interpolating others, so as to make it far more extensive than it really was,[732] that upon the consideration of precedents, which they specify, they came to a resolution that "businesses depending in one parliament or session of parliament have been continued to the next session of the same parliament, and the proceedings thereupon have remained in the same state in which they were left when last in agitation." The house approved of this resolution, and ordered it accordingly.[733] This resolution was decisive as to the continuance of ordinary judicial business beyond the termination of a session. It was still open to dispute whether it might not abate by a dissolution. And the peculiar case of impeachment, to which, after the dissolution of the long parliament in 1678, every one's attention was turned, seemed to stand on different grounds. It was referred therefore to the committee of privileges, on the 11th of March 1679, to consider whether petitions of appeal which were presented to this house in the last parliament be still in force to be proceeded on. Next day it is referred to the same committee, on a report of the matter of fact as to the impeachments of the Earl of Danby and the five popish lords in the late parliament, to consider of the state of the said impeachments and all the incidents relating thereto, and to report to the house. On the 18th of March Lord Essex reported from the committee, that, "upon perusal of the judgment of this house of the 29th of March 1673, they are of opinion, that in all cases of appeals and writs of error they continue, and are to be proceeded on, in statu quo, as they stood at the dissolution of the last parliament, without beginning de novo.... And, upon consideration had of the matter referred to their lordships concerning the state of the impeachments brought up from the House of Commons the last parliament, etc.... they are of opinion that the dissolution of the last parliament doth not alter the state of the impeachments brought up by the Commons in that parliament." This report was taken into consideration next day by the house; and after a debate, which appears from the journals to have lasted some time, and the previous question moved and lost, it was resolved to agree with the committee.[734] This resolution became for some years the acknowledged law of parliament. Lord Stafford, at his trial in 1680, having requested that his counsel might be heard as to the point, whether impeachments could go from one parliament to another, the house took no notice of this question; though they consulted the judges about another which he had put, as to the necessity of two witnesses to every overt act of treason.[735] Lord Danby and Chief-Justice Scroggs petitioned the Lords in the Oxford parliament, one to have the charges against him dismissed, the other to be bailed; but neither take the objection of an intervening dissolution.[736] And Lord Danby, after the dissolution of three successive parliaments since that in which he was impeached, having lain for three years in the Tower, when he applied to be enlarged on bail by the court of king's bench in 1682, was refused by the judges, on the ground of their incompetency to meddle in a parliamentary impeachment; though, if the prosecution were already at an end, he would have been entitled to an absolute discharge. On Jefferies becoming chief justice of the king's bench, Danby was admitted to bail.[737] But in the parliament of 1685, the impeached lords having petitioned the house, it was resolved, that the order of the 19th of March 1679 be reversed and annulled as to impeachments; and they were consequently released from their recognisances.[738] The first of these two contradictory determinations is not certainly free from that reproach which so often contaminates our precedents of parliamentary law, and renders an honest man reluctant to show them any greater deference than is strictly necessary. It passed during the violent times of the popish plot; and a contrary resolution would have set at liberty the five catholic peers committed to the Tower, and enabled them probably to quit the kingdom before a new impeachment could be preferred. It must be acknowledged, at the same time, that it was borne out, in a considerable degree, by the terms of the order of 1673, which seems liable to no suspicion of answering a temporary purpose; and that the court party in the House of Lords were powerful enough to have withstood any flagrant innovation in the law of parliament. As for the second resolution, that of 1685, which reversed the former, it was passed in the very worst of times; and, if we may believe the protest, signed by the Earl of Anglesea and three other peers, with great precipitation and neglect of usual forms. It was not however annulled after the revolution; but, on the contrary, received what may seem at first sight a certain degree of confirmation, from an order of the House of Lords in 1690, on the petitions of Lords Salisbury and Peterborough, who had been impeached in the preceding parliament, to be discharged; which was done after reading the resolutions of 1679 and 1685, and a long debate thereon. But as a general pardon had come out in the meantime, by which the judges held that the offences imputed to these two lords had been discharged, and as the Commons showed no disposition to follow up their impeachment against them, no parliamentary reasoning can perhaps be founded on this precedent.[739] In the case of the Duke of Leeds, impeached by the Commons in 1695, no further proceedings were had; but the Lords did not make an order for his discharge from the accusation till five years after three dissolutions had intervened; and grounded it upon the Commons not proceeding with the impeachment. They did not however send a message to enquire if the Commons were ready to proceed, which, according to parliamentary usage, would be required in case of a pending impeachment. The cases of Lords Somers, Orford, and Halifax, were similar to that of the Duke of Leeds, except that so long a period did not intervene. These instances therefore rather tend to confirm the position, that impeachments did not ipso facto abate by a dissolution, notwithstanding the reversal of the order of 1679. In the case of the Earl of Oxford, it was formally resolved in 1717, that an impeachment does not determine by a prorogation of parliament; an authority conclusive to those who maintain that no difference exists in the law of parliament between the effects of a prorogation and a dissolution. But it is difficult to make all men consider this satisfactory. The question came finally before both houses of parliament in 1791, a dissolution having intervened during the impeachment of Mr. Hastings; an impeachment which, far unlike the rapid proceedings of former ages, had already been for three years before the House of Lords, and seemed likely to run on to an almost interminable length. It must have been abandoned in despair, if the prosecution had been held to determine by the late dissolution. The general reasonings, and the force of precedents on both sides, were urged with great ability, and by the principal speakers in both houses; the lawyers generally inclining to maintain the resolution of 1685, that impeachments abate by a dissolution, but against still greater names which were united on the opposite side. In the end, after an ample discussion, the continuance of impeachments, in spite of a dissolution, was carried by very large majorities; and this decision, so deliberately taken, and so free from all suspicion of partiality (the majority in neither house, especially the upper, bearing any prejudice against the accused person), as well as so consonant to principles of utility and constitutional policy, must for ever have set at rest all dispute upon the question. _Popish plot._--The year 1678, and the last session of the parliament that had continued since 1661, were memorable for the great national delusion of the popish plot. For national it was undoubtedly to be called, and by no means confined to the whig or opposition party, either in or out of parliament, though it gave them much temporary strength. And though it were a most unhappy instance of the credulity begotten by heated passions and mistaken reasoning, yet there were circumstances, and some of them very singular in their nature, which explain and furnish an apology for the public error, and which it is more important to point out and keep in mind, than to inveigh, as is the custom in modern times, against the factitiousness and bigotry of our ancestors. For I am persuaded that we are far from being secure from similar public delusions, whenever such a concurrence of coincidences and seeming probabilities shall again arise, as misled nearly the whole people of England in the popish plot.[740] _Coleman's letters._--It is first to be remembered that there was really and truly a popish plot in being, though not that which Titus Oates and his associates pretended to reveal--not merely in the sense of Hume, who, arguing from the general spirit of proselytism in that religion, says there is a perpetual conspiracy against all governments, protestant, Mahometan, and pagan, but one alert, enterprising, effective, in direct operation against the established protestant religion in England. In this plot the king, the Duke of York, and the King of France were chief conspirators; the Romish priests, and especially the jesuits, were eager co-operators. Their machinations and their hopes, long suspected, and in a general sense known, were divulged by the seizure and publication of Coleman's letters. "We have here," he says, in one of these, "a mighty work upon our hands, no less than the conversion of three kingdoms, and by that perhaps the utter subduing of a pestilent heresy, which has a long time domineered over this northern world. There were never such hopes since the death of our queen Mary as now in our days. God has given us a prince, who is become (I may say by miracle) zealous of being the author and instrument of so glorious a work; but the opposition we are sure to meet with is also like to be great; so that it imports us to get all the aid and assistance we can." These letters were addressed to Father la Chaise, confessor of Louis XIV., and displayed an intimate connection with France for the great purpose of restoring popery. They came to light at the very period of Oates's discovery; and though not giving it much real confirmation, could hardly fail to make a powerful impression on men unaccustomed to estimate the value and bearings of evidence.[741] The conspiracy supposed to have been concerted by the jesuits at St. Omers, and in which so many English catholics were implicated, chiefly consisted, as is well known, in a scheme of assassinating the king. Though the obvious falsehood and absurdity of much that the witnesses deposed in relation to this plot render it absolutely incredible, and fully acquit those unfortunate victims of iniquity and prejudice, it could not appear at the time an extravagant supposition, that an eager intriguing faction should have considered the king's life a serious obstacle to their hopes. Though as much attached in heart as his nature would permit to the catholic religion, he was evidently not inclined to take any effectual measures in its favour; he was but one year older than his brother, on the contingency of whose succession all their hopes rested, since his heiress was not only brought up in the protestant faith, but united to its most strenuous defender. Nothing could have been more anxiously wished at St. Omers than the death of Charles; and it does not seem improbable that the atrocious fictions of Oates may have been originally suggested by some actual, though vague, projects of assassination, which he had heard in discourse among the ardent spirits of that college. _Murder of Sir Edmondbury Godfrey._--The popular ferment which this tale, however undeserving of credit, excited in a predisposed multitude, was naturally wrought to a higher pitch by the very extraordinary circumstances of Sir Edmondbury Godfrey's death. Even at this time, although we reject the imputation thrown on the catholics, and especially on those who suffered death for that murder, it seems impossible to frame any hypothesis which can better account for the facts that seem to be authenticated. That he was murdered by those who designed to lay the charge on the papists, and aggravate the public fury, may pass with those who rely on such writers as Roger North,[742] but has not the slightest corroboration from any evidence; nor does it seem to have been suggested by the contemporary libellers of the court party. That he might have had, as an active magistrate, private enemies, whose revenge took away his life, which seems to be Hume's conjecture, is hardly more satisfactory; the enemies of a magistrate are not likely to have left his person unplundered, nor is it usual for justices of the peace, merely on account of the discharge of their ordinary duties, to incur such desperate resentment. That he fell by his own hands was doubtless the suggestion of those who aimed at discrediting the plot; but it is impossible to reconcile this with the marks of violence which are so positively sworn to have appeared on his neck; and, on a later investigation of the subject in the year 1682, when the court had become very powerful, and a belief in the plot had grown almost a mark of disloyalty, an attempt made to prove the self-murder of Godfrey, in a trial before Pemberton, failed altogether; and the result of the whole evidence, on that occasion, was strongly to confirm the supposition that he had perished by the hands of assassins.[743] His death remains at this moment a problem for which no tolerably satisfactory solution can be offered. But at the time, it was a very natural presumption to connect it with the plot, wherein he had not only taken the deposition of Oates, a circumstance not in itself highly important, but was supposed to have received the confidential communications of Coleman.[744] Another circumstance, much calculated to persuade ordinary minds of the truth of the plot, was the trial of Reading, a Romish attorney, for tampering with the witnesses against the accused catholic peers, in order to make them keep out of the way.[745] As such clandestine dealing with witnesses creates a strong, and perhaps with some too strong a presumption of guilt, where justice is sure to be uprightly administered, men did not make a fair distinction as to times when the violence of the court and jury gave no reasonable hope of escape; and when the most innocent party would much rather procure the absence of a perjured witness than trust to the chance of disproving his testimony. _Injustice of judges on the trials._--There was indeed good reason to distrust the course of justice. Never were our tribunals so disgraced by the brutal manners and iniquitous partiality of the bench as in the latter years of this reign. The _State Trials_, none of which appear to have been published by the prisoners' friends, bear abundant testimony to the turpitude of the judges. They explained away and softened the palpable contradictions of the witnesses for the Crown, insulted and threatened those of the accused, checked all cross-examination, assumed the truth of the charge throughout the whole of every trial.[746] One Whitbread, a jesuit, having been indicted with several others, and the evidence not being sufficient, Scroggs discharged the jury of him, but ordered him to be kept in custody till more proof might come in. He was accordingly indicted again for the same offence. On his pleading that he had been already tried, Scroggs and North had the effrontery to deny that he had been ever put in jeopardy, though the witnesses for the Crown had been fully heard before the jury were most irregularly and illegally discharged of him on the former trial. North said he had often known it done, and it was the common course of law. In the course of this proceeding, Bedloe, who had deposed nothing explicit against the prisoner on the former trial, accounted for this by saying, it was not then convenient; an answer with which the court and jury were content.[747] It is remarkable that, although the king might be justly surmised to give little credence to the pretended plot, and the Duke of York was manifestly affected in his interests by the heats it excited, yet the judges most subservient to the court, Scroggs, North, Jones, went with all violence into the popular cry, till, the witnesses beginning to attack the queen, and to menace the duke, they found it was time to rein in, as far as they could, the passions they had instigated.[748] Pemberton, a more honest man in political matters, showed a remarkable intemperance and unfairness in all trials relating to popery. Even in that of Lord Stafford in 1680, the last, and perhaps the worst, proceeding under this delusion, though the court had a standing majority in the House of Lords, he was convicted by fifty-five peers against thirty-one; the Earl of Nottingham, lord chancellor, the Duke of Lauderdale, and several others of the administration voting him guilty, while he was acquitted by the honest Hollis and the acute Halifax.[749] So far was the belief in the popish plot, or the eagerness in hunting its victims to death, from being confined to the whig faction, as some writers have been willing to insinuate. None had more contributed to rouse the national outcry against the accused, and create a firm persuasion of the reality of the plot, than the clergy in their sermons, even the most respectable of their order, Sancroft, Sharp, Barlow, Burnet, Tillotson, Stillingfleet; inferring its truth from Godfrey's murder or Coleman's letters, calling for the severest laws against catholics, and imputing to them the fire of London, nay, even the death of Charles I.[750] _Exclusion of Duke of York proposed._--Though the Duke of York was not charged with participation in the darkest schemes of the popish conspirators, it was evident that his succession was the great aim of their endeavours, and evident also that he had been engaged in the more real and undeniable intrigues of Coleman. His accession to the throne, long viewed with just apprehension, now seemed to threaten such perils to every part of the constitution, as ought not supinely to be waited for, if any means could be devised to obviate them. This gave rise to the bold measure of the exclusion bill, too bold indeed for the spirit of the country, and the rock on which English liberty was nearly shipwrecked. In the long parliament, full as it was of pensioners and creatures of court influence, nothing so vigorous would have been successful. Even in the bill which excluded catholic peers from sitting in the House of Lords, a proviso, exempting the Duke of York from its operation, having been sent down from the other house, passed by a majority of two voices.[751] But the zeal they showed against Danby induced the king to put an end to this parliament of seventeen years' duration; an event long ardently desired by the popular party, who foresaw their ascendancy in the new elections.[752] The next House of Commons accordingly came together with an ardour not yet quenched by corruption; and after reviving the impeachments commenced by their predecessors, and carrying a measure long in agitation, a test[753] which shut the catholic peers out of parliament, went upon the exclusion bill. Their dissolution put a stop to this; and in the next parliament the Lords rejected it.[754] The right of excluding an unworthy heir from the succession was supported not only by the plain and fundamental principles of civil society, which establish the interest of the people to be the paramount object of political institutions, but by those of the English constitution. It had always been the better opinion among lawyers, that the reigning king with consent of parliament was competent to make any changes in the inheritance of the Crown; and this, besides the acts passed under Henry VIII. empowering him to name his successor, was expressly enacted, with heavy penalties against such as should contradict it, in the thirteenth year of Elizabeth. The contrary doctrine indeed, if pressed to its legitimate consequences, would have shaken all the statutes that limit the prerogative; since, if the analogy of entails in private inheritances were to be resorted to, and the existing legislature should be supposed incompetent to alter the line of succession, they could as little impair as they could alienate the indefeasible rights of the heir; nor could he be bound by restrictions to which he had never given his assent. It seemed strange to maintain that the parliament could reduce a king of England to the condition of a doge of Venice, by shackling and taking away his authority, and yet could not divest him of a title which they could render little better than a mockery. Those accordingly who disputed the legislative omnipotence of parliament did not hesitate to assert that statutes infringing on the prerogative were null of themselves. With the court lawyers conspired the clergy, who pretended these matters of high policy and constitutional law to be within their province; and, with hardly an exception, took a zealous part against the exclusion. It was indeed a measure repugnant to the common prejudices of mankind; who, without entering on the abstract competency of parliament, are naturally accustomed in an hereditary monarchy to consider the next heir as possessed of a right, which, except through necessity, or notorious criminality, cannot be justly divested. The mere profession of a religion different from the established, does not seem, abstractedly considered, an adequate ground for unsettling the regular order of inheritance. Yet such was the narrow bigotry of the sixteenth and seventeenth centuries, which died away almost entirely among protestants in the next, that even the trifling differences between Lutherans and Calvinists had frequently led to alternate persecutions in the German states, as a prince of one or the other denomination happened to assume the government. And the Romish religion, in particular, was in that age of so restless and malignant a character, that unless the power of the Crown should be far more strictly limited than had hitherto been the case, there must be a very serious danger from any sovereign of that faith; and the letters of Coleman, as well as other evidences, made it manifest that the Duke of York was engaged in a scheme of general conversion, which, from his arbitrary temper and the impossibility of succeeding by fair means, it was just to apprehend, must involve the subversion of all civil liberty. Still this was not distinctly perceived by persons at a distance from the scene, imbued, as most of the gentry were, with the principles of the old cavaliers, and those which the church had inculcated. The king, though hated by the dissenters, retained the affections of that party, who forgave the vices they deplored, to his father's memory and his personal affability. It appeared harsh and disloyal to force his consent to the exclusion of a brother in whom he saw no crime, and to avoid which he offered every possible expedient.[755] There will always be found in the people of England a strong unwillingness to force the reluctance of their sovereign--a latent feeling, of which parties in the heat of their triumphs are seldom aware, because it does not display itself until the moment of reaction. And although, in the less settled times before the revolution, this personal loyalty was highly dangerous, and may still, no doubt, sometimes break out so as to frustrate objects of high import to the public weal, it is on the whole a salutary temper for the conservation of the monarchy, which may require such a barrier against the encroachments of factions and the fervid passions of the multitude. _Schemes of Shaftesbury and Monmouth._--The bill of exclusion was drawn with as much regard to the inheritance of the Duke of York's daughters as they could reasonably demand, or as any lawyer engaged for them could have shown; though something different seems to be insinuated by Burnet. It provided that the imperial crown of England should descend to and be enjoyed by such person or persons successively during the life of the Duke of York, as should have inherited or enjoyed the same in case he were naturally dead. If the Princess of Orange was not expressly named (which, the bishop tells us, gave a jealousy, as though it were intended to keep that matter still undetermined), this silence was evidently justified by the possible contingency of the birth of a son to the duke, whose right there was no intention in the framers of the bill to defeat. But a large part of the opposition had unfortunately other objects in view. It had been the great error of those who withstood the arbitrary counsels of Charles II. to have admitted into their closest confidence, and in a considerable degree to the management of their party, a man so destitute of all honest principle as the Earl of Shaftesbury. Under his contaminating influence their passions became more untractable, their connections more seditious and democratical, their schemes more revolutionary, and they broke away more and more from the line of national opinion, till a fatal reaction involved themselves in ruin, and exposed the cause of public liberty to its most imminent peril. The countenance and support of Shaftesbury brought forward that unconstitutional and most impolitic scheme of the Duke of Monmouth's succession. There could hardly be a greater insult to a nation used to respect its hereditary line of kings, than to set up the bastard of a prostitute, without the least pretence of personal excellence or public services, against a princess of known virtue and attachment to the protestant religion. And the effrontery of this attempt was aggravated by the libels eagerly circulated to dupe the credulous populace into a belief of Monmouth's legitimacy. The weak young man, lured on to destruction by the arts of intriguers and the applause of the multitude, gave just offence to sober-minded patriots, who knew where the true hopes of public liberty were anchored, by a kind of triumphal procession through parts of the country, and by other indications of a presumptuous ambition.[756] _Unsteadiness of the king._--If any apology can be made for the encouragement given by some of the whig party (for it was by no means general) to the pretensions of Monmouth, it must be found in their knowledge of the king's affection for him, which furnished a hope that he might more easily be brought in to the exclusion of his brother for the sake of so beloved a child than for the Prince of Orange. And doubtless there was a period when Charles's acquiescence in the exclusion did not appear so unattainable as, from his subsequent line of behaviour, we are apt to consider it. It appears from the recently published life of James, that in the autumn of 1680 the embarrassment of the king's situation, and the influence of the Duchess of Portsmouth, who had gone over to the exclusionists, made him seriously deliberate on abandoning his brother.[757] Whether from natural instability of judgment, from the steady adherence of France to the Duke of York, or from observing the great strength of the tory party in the House of Lords, where the bill was rejected by a majority of 63 to 30, he soon returned to his former disposition. It was long however before he treated James with perfect cordiality. Conscious of his own insincerity in religion, which the duke's bold avowal of an obnoxious creed seemed to reproach, he was provoked at bearing so much of the odium, and incurring so many of the difficulties, which attended a profession that he had not ventured to make. He told Hyde, before the dissolution of the parliament in 1680, that it would not be in his power to protect his brother any longer, if he did not conform and go to church.[758] Hyde himself, and the duke's other friends, had never ceased to urge him on this subject. Their importunity was renewed by the king's order, even after the dissolution of the Oxford parliament; and it seems to have been the firm persuasion of most about the court that he could only be preserved by conformity to the protestant religion. He justly apprehended the consequences of a refusal; but, inflexibly conscientious on this point, he braved whatever might arise from the timidity or disaffection of the ministers and the selfish fickleness of the king. In the apprehensions excited by the king's unsteadiness and the defection of the Duchess of Portsmouth, he deemed his fortunes so much in jeopardy, as to have resolved on exciting a civil war, rather than yield to the exclusion. He had already told Barillon that the royal authority could be re-established by no other means.[759] The episcopal party in Scotland had gone such lengths that they could hardly be safe under any other king. The catholics of England were of course devoted to him. With the help of these he hoped to show himself so formidable that Charles would find it his interest to quit that cowardly line of politics, to which he was sacrificing his honour and affections. Louis, never insensible to any occasion of rendering England weak and miserable, directed his ambassador to encourage the duke in this guilty project with the promise of assistance.[760] It seems to have been prevented by the wisdom or public spirit of Churchill, who pointed out to Barillon the absurdity of supposing that the duke could stand by himself in Scotland. This scheme of lighting up the flames of civil war in three kingdoms, for James's private advantage, deserves to be more remarked than it has hitherto been at a time when the apologists seem to have become numerous. If the designs of Russell and Sidney for the preservation of their country's liberty are blamed as rash and unjustifiable, what name shall we give to the project of maintaining the pretensions of an individual by means of rebellion and general bloodshed? It is well known that those who took a concern in the maintenance of religion and liberty, were much divided as to the best expedients for securing them; some, who thought the exclusion too violent, dangerous, or impracticable, preferring the enactment of limitations on the prerogatives of a catholic king. This had begun in fact from the court, who passed a bill through the House of Lords in 1677, for the security, as it was styled, of the protestant religion. This provided that a declaration and oath against transubstantiation should be tendered to every king within fourteen days after his accession; that, on his refusal to take it, the ecclesiastical benefices in the gift of the Crown should vest in the bishops, except that the king should name to every vacant see one out of three persons proposed to him by the bishops of the province. It enacted also, that the children of a king refusing such a test should be educated by the archbishop and two or three more prelates. This bill dropped in the Commons; and Marvell speaks of it as an insidious stratagem of the ministry.[761] It is more easy, however, to give hard names to a measure originating with an obnoxious government, than to prove that it did not afford a considerable security to the established church, and impose a very remarkable limitation on the prerogative. But the opposition in the House of Commons had probably conceived their scheme of exclusion, and would not hearken to any compromise. As soon as the exclusion became the topic of open discussion, the king repeatedly offered to grant every security that could be demanded consistently with the lineal succession. Hollis, Halifax, and for a time Essex, as well as several eminent men in the lower house, were in favour of limitations.[762] But those which they intended to insist upon were such encroachments on the constitutional authority of the Crown, that, except a title and revenue, which Charles thought more valuable than all the rest, a popish king would enjoy no one attribute of royalty. The king himself, on the 30th of April 1679, before the heats on the subject had become so violent as they were the next year, offered not only to secure all ecclesiastical preferments from the control of a popish successor, but to provide that the parliament in being at a demise of the Crown or the last that had been dissolved, should immediately sit and be indissoluble for a certain time; that none of the privy council, nor judges, lord lieutenant, deputy lieutenant, nor officer of the navy, should be appointed during the reign of a catholic king, without consent of parliament. He offered at the same time most readily to consent to any further provision that could occur to the wisdom of parliament for the security of religion and liberty consistently with the right of succession. Halifax, the eloquent and successful opponent of the exclusion, was the avowed champion of limitations. It was proposed, in addition to these offers of the king, that the duke, in case of his accession, should have no negative voice on bills; that he should dispose of no civil or military posts without consent of parliament; that a council of forty-one, nominated by the two houses, should sit permanently during the recess or interval of parliament, with power of appointing to all vacant offices, subject to the future approbation of the Lords and Commons.[763] These extraordinary innovations would, at least for the time, have changed our constitution into a republic; and justly appeared to many persons more revolutionary than an alteration in the course of succession. The Duke of York looked on them with dismay; Charles indeed privately declared that he would never consent to such infringements of the prerogative.[764] It is not however easy to perceive how he could have escaped from the necessity of adhering to his own propositions, if the House of Commons would have relinquished the bill of exclusion. The Prince of Orange, who was doubtless in secret not averse to the latter measure, declared strongly against the plan of restrictions, which a protestant successor might not find it practicable to shake off. Another expedient, still more ruinous to James than that of limitations, was what the court itself suggested in the Oxford parliament, that the duke retaining the title of king, a regent should be appointed, in the person of the Princess of Orange, with all the royal prerogatives; nay, that the duke, with his pageant crown on his head, should be banished from England during his life.[765] This proposition, which is a great favourite with Burnet, appears liable to the same objections as were justly urged against a similar scheme at the revolution. It was certain that in either case James would attempt to obtain possession of power by force of arms; and the law of England would not treat very favourably those who should resist an acknowledged king in his natural capacity, while the statute of Henry VII. would, legally speaking, afford a security to the adherents of a _de facto_ sovereign. Upon the whole, it is very unlikely, when we look at the general spirit and temper of the nation, its predilection for the ancient laws, its dread of commonwealth and fanatical principles, the tendency of the upper ranks to intrigue and corruption, the influence and activity of the church, the bold counsels and haughty disposition of James himself, that either the exclusion, or such extensive limitations as were suggested in lieu of it, could have been carried into effect with much hope of a durable settlement. It would, I should conceive, have been practicable to secure the independence of the judges, to exclude unnecessary placemen and notorious pensioners from the House of Commons, to render the distribution of money among its members penal, to remove from the protestant dissenters, by a full toleration, all temptation to favour the court, and, above all, to put down the standing army. Though none perhaps of these provisions would have prevented the attempts of this and the next reign to introduce arbitrary power, they would have rendered them still more grossly illegal; and, above all, they would have saved that unhappy revolution of popular sentiment which gave the court encouragement and temporary success. _Names of Whig and Tory._--It was in the year 1679, that the words Whig and Tory first were heard in their application to English factions; and, though as senseless as any cant terms that could be devised, they became instantly as familiar in use as they have since continued. There were then indeed questions in agitation, which rendered the distinction more broad and intelligible than it has generally been in later times. One of these, and the most important, was the bill of exclusion; in which, as it was usually debated, the republican principle, that all positive institutions of society are in order to the general good, came into collision with that of monarchy, which rests on the maintenance of a royal line, as either the end, or at least the necessary means, of lawful government. But, as the exclusion was confessedly among those extraordinary measures, to which men of tory principles are sometimes compelled to resort in great emergencies, and which no rational whig espouses at any other time, we shall better perhaps discern the formation of these grand political sects in the petitions for the sitting of parliament, and in the counter addresses of the opposite party. _New council formed by Sir William Temple._--In the spring of 1679, Charles established a new privy council, by the advice of Sir William Temple, consisting in great part of those eminent men in both houses of parliament, who had been most prominent in their opposition to the late ministry.[766] He publicly declared his resolution to govern entirely by the advice of this council and that of parliament. The Duke of York was kept in what seemed a sort of exile at Brussels.[767] But the just suspicion attached to the king's character prevented the Commons from placing much confidence in this new ministry; and, as frequently happens, abated their esteem for those who, with the purest intentions, had gone into the council.[768] They had soon cause to perceive that their distrust had not been excessive. The ministers were constantly beaten in the House of Lords; an almost certain test, in our government, of the court's insincerity.[769] _Long prorogation of parliament._--The parliament was first prorogued, then dissolved; against the advice, in the latter instance, of the majority of that council by whom the king had pledged himself to be directed. A new parliament, after being summoned to meet in October 1679, was prorogued for a twelve-month without the avowed concurrence of any member of the council. Lord Russell, and others of the honester party, withdrew from a board where their presence was only asked in mockery or deceit; and the whole specious scheme of Temple came to nothing before the conclusion of the year which had seen it displayed.[770] Its author, chagrined at the disappointment of his patriotism and his vanity, has sought the causes of failure in the folly of Monmouth and perverseness of Shaftesbury. He was not aware, at least in their full extent, of the king's intrigues at this period. Charles, who had been induced to take those whom he most disliked into his council, with the hope of obtaining money from parliament, or of parrying the exclusion bill, and had consented to the Duke of York's quitting England, found himself enthralled by ministers whom he could neither corrupt nor deceive; Essex, the firm and temperate friend of constitutional liberty in power as he had been out of it, and Halifax, not yet led away by ambition or resentment from the cause he never ceased to approve. He had recourse therefore to his accustomed refuge, and humbly implored the aid of Louis against his own council and parliament. He conjured his patron not to lose this opportunity of making England for ever dependent upon France. These are his own words, such at least as Barillon attributes to him.[771] In pursuance of this overture, a secret treaty was negotiated between the two kings; whereby, after long haggling, Charles, for a pension of 1,000,000 livres annually during three years, obliged himself not to assemble parliament during that time. This negotiation was broken off, through the apprehensions of Hyde and Sunderland who had been concerned in it, about the end of November 1679, before the long prorogation which is announced in the _Gazette_ by a proclamation of December 11th. But, the resolution having been already taken not to permit the meeting of parliament, Charles persisted in it as the only means of escaping the bill of exclusion, even when deprived of the pecuniary assistance to which he had trusted. Though the king's behaviour on this occasion exposed the fallacy of all projects for reconciliation with the House of Commons, it was very well calculated for his own ends; nor was there any part of his reign wherein he acted with so much prudence, as from this time to the dissolution of the Oxford parliament. The scheme concerted by his adversaries, and already put in operation, of pouring in petitions from every part of the kingdom for the meeting of parliament, he checked in the outset by a proclamation, artfully drawn up by Chief-Justice North; which, while it kept clear of anything so palpably unconstitutional as a prohibition of petitions, served the purpose of manifesting the king's dislike to them, and encouraged the magistrates to treat all attempts that way as seditious and illegal, while it drew over the neutral and lukewarm to the safer and stronger side.[772] Then were first ranged against each other the hosts of whig and tory, under their banners of liberty or loyalty; each zealous, at least in profession, to maintain the established constitution, but the one seeking its security by new maxims of government, the other by an adherence to the old. _Petitions and addresses._--It must be admitted that petitions to the king from bodies of his subjects, intended to advise or influence him in the exercise of his undoubted prerogatives, such as the time of calling parliament together, familiar as they may now have become, had no precedent, except one in the dark year 1640, and were repugnant to the ancient principles of our monarchy. The cardinal maxim of toryism is, that the king ought to exercise all his lawful prerogatives without the interference, or unsolicited advice, even of parliament, much less of the people. These novel efforts therefore were met by addresses from most of the grand juries, from the magistrates at quarter sessions, and from many corporations, expressing not merely their entire confidence in the king, but their abhorrence of the petitions for the assembling of parliament; a term which, having been casually used in one address, became the watchword of the whole party.[773] Some allowance must be made for the exertions made by the court, especially through the judges of assize, whose charges to grand juries were always of a political nature. Yet there can be no doubt that the strength of the tories manifested itself beyond expectation. Sluggish and silent in its fields, like the animal which it has taken for its type, the deep-rooted loyalty of the English gentry to the Crown may escape a superficial observer, till some circumstance calls forth an indignant and furious energy. The temper shown in 1680 was not according to what the late elections would have led men to expect, not even to that of the next elections for the parliament at Oxford. A large majority returned on both these occasions, and that in the principal counties as much as in corporate towns, were of the whig principle. It appears that the ardent zeal against popery in the smaller freeholders must have overpowered the natural influence of the superior classes. The middling and lower orders, particularly in towns, were clamorous against the Duke of York and the evil counsellors of the Crown. But with the country gentlemen, popery was scarce a more odious word than fanaticism; the memory of the late reign and of the usurpation was still recent, and in the violence of the Commons, in the insolence of Monmouth and Shaftesbury, in the bold assaults upon hereditary right, they saw a faint image of that confusion which had once impoverished and humbled them. Meanwhile the king's dissimulation was quite sufficient for these simple loyalists; the very delusion of the popish plot raised his name for religion in their eyes, since his death was the declared aim of the conspirators; nor did he fail to keep alive this favourable prejudice by letting that imposture take its course, and by enforcing the execution of the penal laws against some unfortunate priests.[774] _Violence of the Commons._--It is among the great advantages of a court in its contention with the asserters of popular privileges, that it can employ a circumspect and dissembling policy, which is never found on the opposite side. The demagogues of faction, or the aristocratic leaders of a numerous assembly, even if they do not feel the influence of the passions they excite, which is rarely the case, are urged onwards by their headstrong followers, and would both lay themselves open to the suspicion of unfaithfulness and damp the spirit of their party, by a wary and temperate course of proceeding. Yet that incautious violence, to which ill-judging men are tempted by the possession of power, must in every case, and especially where the power itself is deemed an usurpation, cast them headlong. This was the fatal error of that House of Commons which met in October 1680; and to this the king's triumph may chiefly be ascribed. The addresses declaratory of abhorrence of petitions for the meeting of parliament were doubtless intemperate with respect to the petitioners; but it was preposterous to treat them as violations of privilege. A few precedents, and those in times of much heat and irregularity, could not justify so flagrant an encroachment on the rights of the private subject, as the commitments of men for a declaration so little affecting the constitutional rights and functions of parliament.[775] The expulsion of Withens, their own member, for promoting one of these addresses, though a violent measure, came in point of law within their acknowledged authority.[776] But it was by no means a generally received opinion in that age that the House of Commons had an unbounded jurisdiction, directly or indirectly, over their constituents. The lawyers, being chiefly on the side of prerogative, inclined at least to limit very greatly this alleged power of commitment for breach of privilege or contempt of the house. It had very rarely, in fact, been exerted, except in cases of serving legal process on members or other molestation, before the long parliament of Charles I.; a time absolutely discredited by one party, and confessed by every reasonable man to be full of innovation and violence. That the Commons had no right of judicature was admitted; was it compatible to principles of reason and justice, that they could, merely by using the words contempt or breach of privilege in a warrant, deprive the subject of that liberty which the recent statute of habeas corpus had secured against the highest ministers of the Crown? Yet one Thompson, a clergyman at Bristol, having preached some virulent sermons, wherein he had traduced the memory of Hampden for refusing the payment of ship-money, and spoken disrespectfully of Queen Elizabeth, as well as insulted those who petitioned for the sitting of parliament, was sent for in custody of the serjeant to answer at the bar for his high misdemeanour against the privileges of that house; and was afterwards compelled to find security for his forthcoming to answer to an impeachment voted against him on these strange charges.[777] Many others were brought to the bar, not only for the crime of abhorrence, but for alleged misdemeanours still less affecting the privileges of parliament, such as remissness in searching for papists. Sir Robert Cann, of Bristol, was sent for in custody of the serjeant-at-arms, for publicly declaring that there was no popish, but only a presbyterian plot. A general panic, mingled with indignation, was diffused through the country, till one Stawell, a gentleman of Devonshire, had the courage to refuse compliance with the speaker's warrant; and the Commons, who hesitated at such a time to risk an appeal to the ordinary magistrates, were compelled to let this contumacy go unpunished. If indeed we might believe the journals of the house, Stawell was actually in custody of the serjeant, though allowed a month's time on account of sickness. This was most probably a subterfuge to conceal the truth of the case.[778] These encroachments under the name of privilege were exactly in the spirit of the long parliament, and revived too forcibly the recollection of that awful period. It was commonly in men's mouths, that 1641 was come about again. There appeared indeed for several months a very imminent danger of civil war. I have already mentioned the projects of the Duke of York, in case his brother had given way to the exclusion bill. There could be little reason to doubt that many of the opposite leaders were ready to try the question by arms. Reresby has related a conversation he had with Lord Halifax immediately after the rejection of the bill,[779] which shows the expectation of that able statesman, that the differences about the succession would end in civil war. The just abhorrence good men entertain for such a calamity excites their indignation against those who conspicuously bring it on. And, however desirous some of the court might be to strengthen the prerogative by quelling a premature rebellion, the Commons were, in the eyes of the nation, far more prominent in accelerating so terrible a crisis. Their votes in the session of November 1680 were marked by the most extravagant factiousness.[780] _Oxford parliament._--Their conduct in the short parliament held at Oxford in March 1681, served still more to alienate the peaceable part of the community. That session of eight days was marked by the rejection of a proposal to vest all effective power during the Duke of York's life in a regent, and by an attempt to screen the author of a treasonable libel from punishment under the pretext of impeaching him at the bar of the upper house. It seems difficult not to suspect that the secret instigations of Barillon, and even his gold, had considerable influence on some of those who swayed the votes of this parliament. _Impeachment of commoners for treason constitutional._--Though the impeachment of Fitzharris, to which I have just alluded, was in itself a mere work of temporary faction, it brought into discussion a considerable question in our constitutional law, which deserves notice, both on account of its importance, and because a popular writer has advanced an untenable proposition on the subject. The Commons impeached this man of high treason. The Lords voted, that he should be proceeded against at common law. It was resolved, in consequence, by the lower house, "that it is the undoubted right of the Commons in parliament assembled, to impeach before the Lords in parliament any peer or commoner for treason, or any other crime or misdemeanour: and that the refusal of the Lords to proceed in parliament upon such impeachment is a denial of justice, and a violation of the constitution of parliament."[781] It seems indeed difficult to justify the determination of the Lords. Certainly the declaration in the case of Sir Simon de Bereford, who having been accused by the king, in the fourth year of Edward III. before the Lords, of participating in the treason of Roger Mortimer, that noble assembly protested, with the assent of the king in full parliament, that, albeit they had taken upon them, as judges of the parliament in the presence of the king, to render judgment, yet the peers, who then were or should be in time to come, were not bound to render judgment upon others than peers, nor had power to do so; and that the said judgment thus rendered should never be drawn to example or consequence in time to come, whereby the said peers of the land might be charged to judge others than their peers, contrary to the laws of the land; certainly, I say, this declaration, even if it amounted to a statute, concerning which there has been some question,[782] was not necessarily to be interpreted as applicable to impeachments at the suit of the Commons, wherein the king is no ways a party. There were several precedents in the reign of Richard II. of such impeachments for treason. There had been more than one in that of Charles I. The objection indeed was so novel, that Chief-Justice Scroggs, having been impeached for treason in the last parliament, though he applied to be admitted to bail, had never insisted on so decisive a plea to the jurisdiction. And if the doctrine, adopted by the Lords, were to be carried to its just consequences, all impeachment of commoners must be at an end; for no distinction is taken in the above declaration as to Bereford between treason and misdemeanour. The peers had indeed lost, except during the session of parliament, their ancient privilege in cases of misdemeanour, and were subject to the verdict of a jury; but the principle was exactly the same, and the right of judging commoners upon impeachment for corruption or embezzlement, which no one called in question, was as much an exception from the ordinary rules of law as in the more rare case of high treason. It is hardly necessary to observe, that the 29th section of Magna Charta, which establishes the right of trial by jury, is by its express language solely applicable to the suits of the Crown. This very dangerous and apparently unfounded theory, broached upon the occasion of Fitzharris's impeachment by the Earl of Nottingham, never obtained reception; and was rather intimated than avowed in the vote of the Lords, that he should be proceeded against at common law. But after the revolution, the Commons having impeached Sir Adam Blair and some others of high treason, a committee was appointed to search for precedents on this subject; and after full deliberation, the House of Lords came to a resolution, that they would proceed on the impeachments.[783] The inadvertent position therefore of Blackstone,[784] that a commoner cannot be impeached for high treason, is not only difficult to be supported upon ancient authorities, but contrary to the latest determination of the supreme tribunal. _Proceedings against Shaftesbury and College._--No satisfactory elucidation of the strange libel for which Fitzharris suffered death has yet been afforded. There is much probability in the supposition that it was written at the desire of some in the court, in order to cast odium on their adversaries; a very common stratagem of unscrupulous partisans.[785] It caused an impression unfavourable to the whigs in the nation. The court made a dexterous use of that extreme credulity, which has been supposed characteristic of the English, though it belongs at least equally to every other people. They seized into their hands the very engines of delusion that had been turned against them. Those perjured witnesses, whom Shaftesbury had hallooed on through all the infamy of the popish plot, were now arrayed in the same court to swear treason and conspiracy against him.[786] Though he escaped by the resoluteness of his grand jury, who refused to find a bill of indictment on testimony, which they professed themselves to disbelieve, and which was probably false; yet this extraordinary deviation from the usual practice did harm rather than otherwise to the general cause of his faction. The judges had taken care that the witnesses should be examined in open court, so that the jury's partiality, should they reject such positive testimony, might become glaring. Doubtless it is, in ordinary cases, the duty of a grand juror to find a bill upon the direct testimony of witnesses, where they do not contradict themselves or each other, and where their evidence is not palpably incredible or contrary to his own knowledge.[787] The oath of that inquest is forgotten, either where they render themselves, as seems too often the case, the mere conduit-pipes of accusation, putting a prisoner in jeopardy upon such slender evidence as does not call upon him for a defence; or where, as we have sometimes known in political causes, they frustrate the ends of justice by rejecting indictments which are fully substantiated by testimony. Whether the grand jury of London, in their celebrated ignoramus on the indictment preferred against Shaftesbury, had sufficient grounds for their incredulity, I will not pretend to determine.[788] There was probably no one man among them, who had not implicitly swallowed the tales of the same witnesses in the trials for the plot. The nation however in general, less bigoted, or at least more honest in their bigotry, than those London citizens, was staggered by so many depositions to a traitorous conspiracy, in those who had pretended an excessive loyalty to the king's person.[789] Men unaccustomed to courts of justice are naturally prone to give credit to the positive oaths of witnesses. They were still more persuaded, when, as in the trial of College at Oxford, they saw this testimony sustained by the approbation of a judge (and that judge a decent person who gave no scandal), and confirmed by the verdict of a jury. The gross iniquity practised towards the prisoner in that trial was not so generally bruited as his conviction.[790] There is in England a remarkable confidence in our judicial proceedings, in part derived from their publicity, and partly from the indiscriminate manner in which jurors are usually summoned. It must be owned that the administration of the two last Stuarts was calculated to show how easily this confiding temper might be the dupe of an insidious ambition. _Triumph of the court._--The king's declaration of the reasons that induced him to dissolve the last parliament, being a manifesto against the late majority of the House of Commons, was read in all churches. The clergy scarcely waited for this pretext to take a zealous part for the Crown. Every one knows their influence over the nation in any cause which they make their own. They seemed to change the war against liberty into a crusade. They re-echoed from every pulpit the strain of passive obedience, of indefeasible hereditary right, of the divine origin and patriarchal descent of monarchy. Now began again the loyal addresses, more numerous and ardent than in the last year, which overspread the pages of the _London Gazette_ for many months. These effusions stigmatise the measures of the three last parliaments, dwelling especially on their arbitrary illegal votes against the personal liberty of the subject. Their language is of course not alike; yet amidst all the ebullitions of triumphant loyalty, it is easy in many of them to perceive a lurking distrust of the majesty to which they did homage, insinuated to the reader in the marked satisfaction with which they allude to the king's promise of calling frequent parliaments and of governing by the laws.[791] The whigs, meantime, so late in the heyday of their pride, lay, like the fallen angels, prostrate upon the fiery lake. The scoffs and gibes of libellers, who had trembled before the resolutions of the Commons, were showered upon their heads. They had to fear, what was much worse than the insults of these vermin, the perjuries of mercenary informers suborned by their enemies to charge false conspiracies against them, and sure of countenance from the contaminated benches of justice. The court, with an artful policy, though with detestable wickedness, secured itself against its only great danger, the suspicion of popery, by the sacrifice of Plunket, the titular archbishop of Dublin.[792] The execution of this worthy and innocent person cannot be said to have been extorted from the king in a time of great difficulty, like that of Lord Stafford. He was coolly and deliberately permitted to suffer death, lest the current of loyalty, still sensitive and suspicious upon the account of religion, might be somewhat checked in its course. Yet those who heap the epithets of merciless, inhuman, sanguinary, on the whig party for the impeachment of Lord Stafford, in whose guilt they fully believed, seldom mention, without the characteristic distinction of "good-natured," that sovereign, who signed the warrant against Plunket, of whose innocence he was assured.[793] _Forfeiture of the charter of London, and of other places._--The hostility of the city of London, and of several other towns, towards the court, degenerating no doubt into a factious and indecent violence, gave a pretext for the most dangerous aggression on public liberty that occurred in the present reign. The power of the democracy in that age resided chiefly in the corporations. These returned, exclusively or principally, a majority of the representatives of the commons. So long as they should be actuated by that ardent spirit of protestantism and liberty which prevailed in the middling classes, there was little prospect of obtaining a parliament that would co-operate with the Stuart scheme of government. The administration of justice was very much in the hands of their magistrates; especially in Middlesex, where all juries are returned by the city sheriffs. It was suggested therefore by some crafty lawyers that a judgment of forfeiture obtained against the corporation of London would not only demolish that citadel of insolent rebels, but intimidate the rest of England by so striking an example. True it was, that no precedent could be found for the forfeiture of corporate privileges. But general reasoning was to serve instead of precedents; and there was a considerable analogy in the surrenders of the abbeys under Henry VIII., if much authority could be allowed to that transaction. An information, as it is called, _quo warranto_, was accordingly brought into the court of king's bench against the corporation. Two acts of the common council were alleged as sufficient misdemeanours to warrant a judgment of forfeiture; one, the imposition of certain tolls on goods brought into the city markets, by an ordinance or by-law of their own; the other, their petition to the king in December 1679 for the sitting of parliament, and its publication throughout the country.[794] It would be foreign to the purpose of this work to enquire whether a corporation be in any case subject to forfeiture, the affirmative of which seems to have been held by courts of justice since the revolution; or whether the exaction of tolls in their markets, in consideration of erecting stalls and standings, were within the competence of the city of London; or, if not so, whether it were such an offence as could legally incur the penalty of a total forfeiture and disfranchisement; since it was manifest that the Crown made use only of this additional pretext, in order to punish the corporation for its address to the king. The language indeed of their petition had been uncourtly, and what the adherents of prerogative would call insolent; but it was at the worst rather a misdemeanour for which the persons concerned might be responsible than a breach of the trust reposed in the corporation. We are not however so much concerned to argue the matter of law in this question, as to remark the spirit in which the attack on this stronghold of popular liberty was conceived. The court of king's bench pronounced judgment of forfeiture against the corporation; but this judgment, at the request of the attorney-general, was only recorded: the city continued in appearance to possess its corporate franchises, but upon submission to certain regulations; namely, that no mayor, sheriff, recorder, or other chief officer, should be admitted until approved by the king; that in the event of his twice disapproving their choice of a mayor, he should himself nominate a fit person, and the same in case of sheriffs, without waiting for a second election; that the court of aldermen, with the king's permission, should remove any one of their body; that they should have a negative on the elections of common councilmen, and in case of disapproving a second choice, to have themselves the nomination. The corporation submitted thus to purchase the continued enjoyment of its estates, at the expense of its municipal independence; yet, even in the prostrate condition of the whig party, the question to admit these regulations was carried by no great majority in the common councils.[795] The city was of course absolutely subservient to the court from this time to the revolution. After the fall of the capital, it was not to be expected that towns less capable of defence should stand out. Informations _quo warranto_ were brought against several corporations; and a far greater number hastened to anticipate the assault by voluntary surrenders. It seemed to be recognised as law by the judgment against London, that any irregularity or misuse of power in a corporation might incur a sentence of forfeiture; and few could boast that they were invulnerable at every point. The judges of assize in their circuits prostituted their influence and authority to forward this and every other encroachment of the Crown. Jefferies, on the northern circuit in 1684, to use the language of Charles II.'s most unblushing advocate, "made all the charters, like the walls of Jericho, fall down before him, and returned laden with surrenders, the spoils of towns."[796] They received instead, new charters, framing the constitution of these municipalities on a more oligarchical model, and reserving to the Crown the first appointment of those who were to form the governing part of the corporation. These changes were gradually brought about in the last three years of Charles's reign, and in the beginning of the next. _Projects of Lord Russell and Sidney._--There can be nothing so destructive to the English constitution, not even the introduction of a military force, as the exclusion of the electoral body from their franchises. The people of this country are, by our laws and constitution, bound only to obey a parliament duly chosen; and this violation of charters, in the reigns of Charles and James, appears to be the great and leading justification of that event which drove the latter from the throne. It can therefore be no matter of censure, in a moral sense, that some men of pure and patriotic virtue, mingled, it must be owned, with others of a far inferior temper, began to hold consultations as to the best means of resisting a government, which, whether to judge from these proceedings, or from the language of its partisans, was aiming without disguise at an arbitrary power. But as resistance to established authority can never be warrantable until it is expedient, we could by no means approve any schemes of insurrection that might be projected in 1682, unless we could perceive that there was a fair chance of their success. And this we are not led, by what we read of the spirit of those times, to believe. The tide ran violently in another direction; the courage of the whigs was broken; their adversaries were strong in numbers and in zeal. But from hence it is reasonable to infer that men, like Lord Essex and Lord Russell, with so much to lose by failure, with such good sense, and such abhorrence of civil calamity, would not ultimately have resolved on the desperate issue of arms, though they might deem it prudent to form estimates of their strength, and to knit together a confederacy which absolute necessity might call into action. It is beyond doubt that the supposed conspirators had debated among themselves the subject of an insurrection, and poised the chances of civil war. Thus much the most jealous lawyer, I presume, will allow might be done, without risking the penalties of treason. They had however gone farther; and by concerting measures in different places as well as in Scotland, for a rising, though contingently, and without any fixed determination to carry it into effect, most probably (if the whole business had been disclosed in testimony) laid themselves open to the law, according to the construction it has frequently received. There is a considerable difficulty, after all that has been written, in stating the extent of their designs; but I think we may assume, that a wide-spreading and formidable insurrection was for several months in agitation.[797] But the difficulties and hazards of the enterprise had already caused Lord Russell and Lord Essex to recede from the desperate counsels of Shaftesbury; and but for the unhappy detection of the conspiracy and the perfidy of Lord Howard, these two noble persons, whose lives were untimely lost to their country, might have survived to join the banner and support the throne of William. It is needless to observe that the minor plot, if we may use that epithet in reference to the relative dignity of the conspirators, for assassinating the king and the Duke of York, had no immediate connection with the schemes of Russell, Essex, and Sidney.[798] But it is by no means a consequence from the admission we have made, that the evidence adduced on Lord Russell's trial was sufficient to justify his conviction.[799] It appears to me that Lord Howard, and perhaps Rumsey, were unwilling witnesses; and that the former, as is frequently the case with those who betray their friends in order to save their own lives, divulged no more than was extracted by his own danger. The testimony of neither witness, especially Howard, was given with any degree of that precision which is exacted in modern times; and, as we now read the trial, it is not probable that a jury in later ages would have found a verdict of guilty, or would have been advised to it by the court. But, on the other hand, if Lord Howard were really able to prove more than he did, which I much suspect, a better conducted examination would probably have elicited facts unfavourable to the prisoner, which at present do not appear. It may be doubtful whether any overt act of treason is distinctly proved against Lord Russell, except his concurrence in the project of a rising at Taunton, to which Rumsey deposes. But this depending on the oath of a single witness, could not be sufficient for a conviction. Pemberton, chief justice of the common pleas, tried this illustrious prisoner with more humanity than was usually displayed on the bench; but, aware of his precarious tenure in office, he did not venture to check the counsel for the Crown, Sawyer and Jefferies, permitting them to give a great body of hearsay evidence, with only the feeble and useless remark that it did not affect the prisoner.[800] Yet he checked Lord Anglesea, when he offered similar evidence for the defence. In his direction to the jury, it deserves to be remarked that he by no means advanced the general proposition, which better men have held, that a conspiracy to levy war is in itself an overt act of compassing the king's death; limiting it to cases where the king's person might be put in danger, in the immediate instance, by the alleged scheme of seizing his guards.[801] His language indeed, as recorded in the printed trial, was such as might have produced a verdict of acquittal from a jury tolerably disposed towards the prisoner; but the sheriffs, North and Rich, who had been illegally thrust into office, being men wholly devoted to the prerogative, had taken care to return a panel in whom they could confide.[802] The trial of Algernon Sidney, at which Jefferies, now raised to the post of chief justice of the king's bench, presided, is as familiar to all my readers as that of Lord Russell.[803] Their names have been always united in grateful veneration and sympathy. It is notorious that Sidney's conviction was obtained by a most illegal distortion of the evidence. Besides Lord Howard, no living witness could be produced to the conspiracy for an insurrection; and though Jefferies permitted two others to prepossess the jury by a second-hand story, he was compelled to admit that their testimony could not directly affect the prisoner.[804] The attorney-general therefore had recourse to a paper found in his house, which was given in evidence, either as an overt act of treason by its own nature, or as connected with the alleged conspiracy; for though it was only in the latter sense that it could be admissible at all, yet Jefferies took care to insinuate, in his charge to the jury, that the doctrines it contained were treasonable in themselves, and without reference to other evidence. In regard to truth, and to that justice which cannot be denied to the worst men in their worst actions, I must observe that the common accusation against the court in this trial, of having admitted insufficient proof by the mere comparison of handwriting, though alleged, not only in most of our historians, but in the act of parliament reversing Sidney's attainder, does not appear to be well founded; the testimony to that fact, unless the printed trial is falsified in an extraordinary degree, being such as would be received at present.[805] We may allow also that the passages from this paper, as laid in the indictment, containing very strong assertions of the right of the people to depose an unworthy king, might by possibility, if connected by other evidence with the conspiracy itself, have been admissible as presumptions for the jury to consider whether they had been written in furtherance of that design. But when they came to be read on the trial with their context, though only with such parts of that as the attorney-general chose to produce out of a voluminous manuscript, it was clear that they belonged to a theoretical work on government, long since perhaps written, and incapable of any bearing upon the other evidence.[806] The manifest iniquity of this sentence upon Algernon Sidney, as well as the high courage he displayed throughout these last scenes of his life, have inspired a sort of enthusiasm for his name, which neither what we know of his story, nor the opinion of his contemporaries seem altogether to warrant. The crown of martyrdom should be suffered perhaps to exalt every virtue, and efface every defect in patriots, as it has often done in saints. In the faithful mirror of history, Sidney may lose something of this lustre. He possessed no doubt a powerful, active, and undaunted mind, stored with extensive reading on the topics in which he delighted. But having proposed one only object for his political conduct, the establishment of a republic in England, his pride and inflexibility, though they gave a dignity to his character, rendered his views narrow and his temper unaccommodating. It was evident to every reasonable man that a republican government, being adverse to the prepossessions of a great majority of the people, could only be brought about and maintained by the force of usurpation. Yet for this idol of his speculative hours, he was content to sacrifice the liberties of Europe, to plunge the country in civil war, and even to stand indebted to France for protection. He may justly be suspected of having been the chief promoter of the dangerous cabals with Barillon; nor could any tool of Charles's court be more sedulous in representing the aggressions of Louis XIV. in the Netherlands as indifferent to our honour and safety. Sir Thomas Armstrong, who had fled to Holland on the detection of the plot, was given up by the States. A sentence of outlawry, which had passed against him in his absence, is equivalent, in cases of treason, to a conviction of the crime. But the law allows the space of one year, during which the party may surrender himself to take his trial. Armstrong, when brought before the court, insisted on this right, and demanded a trial. Nothing could be more evident, in point of law, than that he was entitled to it. But Jefferies, with inhuman rudeness, treated his claim as wholly unfounded, and would not even suffer counsel to be heard in his behalf. He was executed accordingly without trial.[807] But it would be too prolix to recapitulate all the instances of brutal injustice, or of cowardly subserviency, which degraded the English lawyers of the Stuart period, and never so infamously as in these last years of Charles II. From this prostitution of the tribunals, from the intermission of parliaments, and the steps taken to render them in future mere puppets of the Crown, it was plain that all constitutional securities were at least in abeyance; and those who felt themselves most obnoxious, or whose spirit was too high to live in an enslaved country, retired to Holland as an asylum in which they might wait the occasion of better prospects, or, at the worst, breathe an air of liberty. Meanwhile the prejudice against the whig party, which had reached so great a height in 1681, was still farther enhanced by the detection of the late conspiracy. The atrocious scheme of assassination, alleged against Walcot and some others who had suffered, was blended by the arts of the court and clergy, and by the blundering credulity of the gentry, with those less heinous projects ascribed to Lord Russell and his associates.[808] These projects, if true in their full extent, were indeed such as men honestly attached to the government of their country could not fail to disapprove. For this purpose, a declaration full of malicious insinuations was ordered to be read in all churches.[809] It was generally commented upon, we may make no question, in one of those loyal discourses, which, trampling on all truth, charity, and moderation, had no other scope than to inflame the hearers against nonconforming protestants, and to throw obloquy on the constitutional privileges of the subject. _High tory principles of the clergy._--It is not my intention to censure, in any strong sense of the word, the Anglican clergy at this time for their assertion of absolute non-resistance, so far as it was done without calumny and insolence towards those of another way of thinking, and without self-interested adulation of the ruling power. Their error was very dangerous, and had nearly proved destructive of the whole constitution; but it was one which had come down with high recommendation, and of which they could only perhaps be undeceived, as men are best undeceived of most errors, by experience that it might hurt themselves. It was the tenet of their homilies, their canons, their most distinguished divines and casuists; it had the apparent sanction of the legislature in a statute of the present reign. Many excellent men, as was shown after the revolution, who had never made use of this doctrine as an engine of faction or private interest, could not disentangle their minds from the arguments or the authority on which it rested. But by too great a number it was eagerly brought forward to serve the purposes of arbitrary power, or at best to fix the wavering protestantism of the court by professions of unimpeachable loyalty. To this motive, in fact, we may trace a good deal of the vehemence with which the non-resisting principle had been originally advanced by the church of England under the Tudors, and was continually urged under the Stuarts. If we look at the tracts and sermons published by both parties after the restoration, it will appear manifest that the Romish and Anglican churches bade, as it were, against each other for the favour of the two royal brothers. The one appealed to its acknowledged principles, while it denounced the pretensions of the holy see to release subjects from their allegiance, and the bold theories of popular government which Mariana and some other Jesuits had promulgated. The others retaliated on the first movers of the reformation, and expatiated on the usurpation of Lady Jane Grey, not to say Elizabeth, and the republicanism of Knox or Calvin. _Passive obedience._--From the æra of the exclusion bill especially, to the death of Charles II., a number of books were published in favour of an indefeasible hereditary right of the Crown, and of absolute non-resistance. These were however of two very different classes. The authors of the first, who were perhaps the more numerous, did not deny the legal limitations of monarchy. They admitted that no one was bound to concur in the execution of unlawful commands. Hence the obedience they deemed indispensable was denominated passive; an epithet which, in modern usage, is little more than redundant, but at that time made a sensible distinction. If all men should confine themselves to this line of duty, and merely refuse to become the instruments of such unlawful commands, it was evident that no tyranny could be carried into effect. If some should be wicked enough to co-operate against the liberties of their country, it would still be the bounden obligation of Christians to submit. Of this, which may be reckoned the moderate party, the most eminent were Hickes in a treatise called "Jovian," and Sherlock in his case of resistance to the supreme powers.[810] To this also must have belonged Archbishop Sancroft, and the great body of non-juring clergy who had refused to read the declaration of indulgence under James II., and whose conduct in that respect would be utterly absurd, except on the supposition that there existed some lawful boundaries of the royal authority. _Some contend for absolute-power._--But besides these men, who kept some measures with the constitution, even while, by their slavish tenets, they laid it open to the assaults of more intrepid enemies, another and a pretty considerable class of writers did not hesitate to avow their abhorrence of all limitations upon arbitrary power. Brady went back to the primary sources of our history, and endeavoured to show that Magna Charta, as well as every other constitutional law, were but rebellious encroachments on the ancient uncontrollable imprescriptible prerogatives of the monarchy. His writings, replete with learning and acuteness, and in some respects with just remarks, though often unfair and always partial, naturally produced an effect on those who had been accustomed to value the constitution rather for its presumed antiquity, than its real excellence. But the author most in vogue with the partisans of despotism was Sir Robert Filmer. He had lived before the civil war, but his posthumous writings came to light about this period. They contain an elaborate vindication of what was called the patriarchal scheme of government, which, rejecting with scorn that original contract whence human society had been supposed to spring, derives all legitimate authority from that of primogeniture, the next heir being king by divine right, and as incapable of being restrained in his sovereignty, as of being excluded from it. "As kingly power," he says, "is by the law of God, so hath it no inferior power to limit it. The father of a family governs by no other law than his own will, not by the laws and wills of his sons and servants."[811] "The direction of the law is but like the advice and direction which the king's council gives the king, which no man says is a law to the king."[812] "General laws," he observes, "made in parliament, may, upon known respects to the king, by his authority be mitigated or suspended upon causes only known to him; and by the coronation oath, he is only bound to observe good laws, of which he is the judge."[813] "A man is bound to obey the king's command against law, nay, in some cases, against divine laws."[814] In another treatise, entitled "The Anarchy of a Mixed or Limited Monarchy," he inveighs, with no kind of reserve or exception, against the regular constitution; setting off with an assumption that the parliament of England was originally but an imitation of the States General of France, which had no further power than to present requests to the king.[815] These treatises of Filmer obtained a very favourable reception. We find the patriarchal origin of government frequently mentioned in the publications of this time as an undoubted truth. Considered with respect to his celebrity rather than his talents, he was not, as some might imagine, too ignoble an adversary for Locke to have combated. Another person, far superior to Filmer in political eminence, undertook at the same time an unequivocal defence of absolute monarchy. This was Sir George Mackenzie, the famous lord advocate of Scotland. In his "Jus Regium," published in 1684, and dedicated to the university of Oxford, he maintains, that "monarchy in its nature is absolute, and consequently these pretended limitations are against the nature of monarchy."[816] "Whatever proves monarchy to be an excellent government, does by the same reason prove absolute monarchy to be the best government; for if monarchy be to be commended, because it prevents divisions, then a limited monarchy, which allows the people a share, is not to be commended, because it occasions them; if monarchy be commended, because there is more expedition, secrecy, and other excellent qualities to be found in it, then absolute monarchy is to be commended above a limited one, because a limited monarch must impart his secrets to the people, and must delay the noblest designs, until malicious and factious spirits be either gained or overcome; and the same analogy of reason will hold in reflecting upon all other advantages of monarchy, the examination whereof I dare trust to every man's own bosom."[817] We can hardly, after this, avoid being astonished at the effrontery even of a Scots crown lawyer, when we read in the preface to this very treatise of Mackenzie, "Under whom can we expect to be free from arbitrary government, when we were and are afraid of it under King Charles I. and King Charles II.?" _Decree of the university of Oxford._--It was at this time that the university of Oxford published their celebrated decree against pernicious books and damnable doctrines, enumerating as such above twenty propositions which they anathematised as false, seditious, and impious. The first of these is, that all civil authority is derived originally from the people; the second, that there is a compact, tacit or express, between the king and his subjects: and others follow of the same description. They do not explicitly condemn a limited monarchy, like Filmer, but evidently adopt his scheme of primogenitary right, which is incompatible with it. Nor is there the slightest intimation that the university extended their censure to such praises of despotic power as have been quoted in the last pages.[818] This decree was publicly burned by an order of the House of Lords in 1709: nor does there seem to have been a single dissent in that body to a step that cast such a stigma on the university. But the disgrace of the offence was greater than that of the punishment. We can frame no adequate conception of the jeopardy in which our liberties stood under the Stuarts, especially in this particular period, without attending to this spirit of servility which had been so sedulously excited. It seemed as if England was about to play the scene which Denmark had not long since exhibited, by a spontaneous surrender of its constitution. And although this loyalty were much more on the tongue than in the heart, as the next reign very amply disclosed, it served at least to deceive the court into a belief that its future steps would be almost without difficulty. It is uncertain whether Charles would have summoned another parliament. He either had the intention, or professed it in order to obtain money from France, of convoking one at Cambridge in the autumn of 1681.[819] But after the scheme of new-modelling corporations began to be tried, it was his policy to wait the effects of this regeneration. It was better still, in his judgment, to dispense with the Commons altogether. The period fixed by law had elapsed nearly twelve months before his death; and we have no evidence that a new parliament was in contemplation. But Louis, on the other hand, having discontinued his annual subsidy to the king in 1684, after gaining Strasburg and Luxemburg by his connivance, or rather co-operation,[820] it would not have been easy to avoid a recurrence to the only lawful source of revenue. The King of France, it should be observed, behaved towards Charles as men usually treat the low tools by whose corruption they have obtained any end. During the whole course of their long negotiations, Louis, though never the dupe of our wretched monarch, was compelled to endure his shuffling evasions, and pay dearly for his base compliances. But when he saw himself no longer in need of them, it seems to have been in revenge that he permitted the publication of the secret treaty of 1670, and withdrew his pecuniary aid. Charles deeply resented both these marks of desertion in his ally. In addition to them he discovered the intrigues of the French ambassadors with his malcontent Commons. He perceived also that by bringing home the Duke of York from Scotland, and restoring him in defiance of the test act to the privy council, he had made the presumptive heir of the throne, possessed as he was of superior steadiness and attention, too near a rival to himself. These reflections appear to have depressed his mind in the latter months of his life, and to have produced that remarkable private reconciliation with the Duke of Monmouth, through the influence of Lord Halifax; which, had he lived, would very probably have displayed one more revolution in the uncertain policy of this reign.[821] But a death, so sudden and inopportune as to excite suspicions of poison in some most nearly connected with him, gave a more decisive character to the system of government.[822] THE TEMPLE PRESS, PRINTERS, LETCHWORTH FOOTNOTES: [696] Temple's _Memoirs_. [697] Burnet says that Danby bribed the less important members, instead of the leaders; which did not answer so well. But he seems to have been liberal to all. The parliament has gained the name of the pensioned. In that of 1679, Sir Stephen Fox was called upon to produce an account of the monies paid to many of their predecessors. Those who belonged to the new parliament, endeavoured to defend themselves; and gave reasons for their pensions; but I observe no one says he did not always vote with the court. _Parl. Hist._ 1137. North admits that great clamour was excited by this discovery; and well it might. See also Dalrymple, ii. 92. [698] Burnet charges these two leaders of opposition with being bribed by the court to draw the house into granting an enormous supply, as the consideration of passing the test act; and see Pepys, Oct. 6, 1666. Sir Robert Howard and Sir Richard Temple were said to have gone over to the court in 1670 through similar inducements. Ralph. Roger North (_Examen_, p. 456) gives an account of the manner in which men were brought off from the opposition, though it was sometimes advisable to let them nominally continue in it; and mentions Lee, Garraway, and Meres, all very active patriots, if we trust to the parliamentary debates. But, after all, neither Burnet nor Roger North are wholly to be relied on as to particular instances; though the general fact of an extensive corruption be indisputable. [699] This cunning, self-interested man, who had been introduced to the house by Lord Russell and Lord Cavendish, and was connected with the country party, tells us that Danby sent for him in Feb. 1677, and assured him that the jealousies of that party were wholly without foundation; that, to his certain knowledge, the king meant no other than to preserve the religion and government by law established; that, if the government was in any danger, it was from those who pretended such a mighty zeal for it. On finding him well disposed, Danby took his proselyte to the king, who assured him of his regard for the constitution, and was right loyally believed. Reresby's _Memoirs_, p. 36. [700] "There were two things," says Bishop Parker, "which, like Circe's cup, bewitched men and turned them into brutes; viz. popery and French interest. If men otherwise sober heard them once, it was sufficient to make them run mad. But, when those things were laid aside, their behaviour to his majesty was with a becoming modesty." P. 244. Whenever the court seemed to fall in with the national interests on the two points of France and popery, many of the country party voted with them, though more numerous than their own. Temple, p. 458. See too Reresby, p. 25 _et alibi_. [701] The king, according to James himself, readily consented to the marriage of the princess, when it was first suggested in 1675; the difficulty was with her father. He gave at last a reluctant consent; and the offer was made by Lords Arlington and Ossory to the Prince of Orange, who received it coolly. _Life of James_, 501. When he came over to England in Oct. 1677, with the intention of effecting the match, the king and duke wished to defer it till the conclusion of the treaty then in negotiation at Nimeguen; but "the obstinacy of the prince, with the assistance of the treasurer, who from that time entered into the measures and interests of the prince, prevailed upon the flexibility of the king to let the marriage be first agreed and concluded."--P. 508. [702] Kennet, p. 332; North's _Examen_, p. 61; Burnet. This test was covertly meant against the Romish party as well as more openly against the dissenters. _Life of James_, p. 499. Danby set himself up as the patron of the church party and old cavaliers against the two opposing religions; trusting that they were the stronger in the House of Commons. But the times were so changed that the same men had no longer the same principles, and the house would listen to no measures against nonconformists. He propitiated, however, the prelates, by renewing the persecution under the existing laws, which had been relaxed by the cabal ministry. Baxter, 156, 172; Kennet, 331; Neal, 698; _Somers Tracts_, vii. 336. Meanwhile, schemes of comprehension were sometimes on foot; and the prelates affected to be desirous of bringing about an union; but Morley and Sheldon frustrated them all. Baxter, 156; Kennet, 326; Parker, 25. The bishops, however, were not uniformly intolerant. Croft, Bishop of Hereford, published, about 1675, a tract that made some noise, entitled "The Naked Truth," for the purpose of moderating differences. It is not written with extraordinary ability; but is very candid and well designed, though conceding so much as to scandalise his brethren. _Somers Tracts_, vii. 268; _Biogr. Brit._ art. Croft; where the book is extravagantly over praised. Croft was one of the few bishops who, being then very old, advised his clergy to read James II.'s declaration in 1687; thinking, I suppose, though in those circumstances erroneously, that toleration was so good a thing, it was better to have it irregularly than not at all. [703] Charles received 500,000 crowns for the long prorogation of parliament, from Nov. 1675 to Feb. 1677. In the beginning of the year 1676, the two kings bound themselves by a formal treaty (to which Danby and Lauderdale, but not Coventry or Williamson, were privy), not to enter on any treaties but by mutual consent; and Charles promised, in consideration of a pension, to prorogue or dissolve parliament, if they should attempt to force such treaties upon him. Dalrymple, p. 99. Danby tried to break this off, but did not hesitate to press the French cabinet for the money; and £200,000 was paid. The Prince of Orange came afterwards through Rouvigny to a knowledge of this secret treaty. P. 117. [704] This army consisted of between twenty and thirty thousand men, as fine troops as could be seen (_Life of James_, p. 512): an alarming sight to those who denied the lawfulness of any standing army. It is impossible to doubt, from Barillon's correspondence in Dalrymple, that the king and duke looked to this force as the means of consolidating the royal authority. This was suspected at home, and very justly: "Many well-meaning men," says Reresby, "began to fear the army now raised was rather intended to awe our own kingdom than to war against France, as had at first been suggested."--P. 62. And in a former passage (p. 57) he positively attributes the opposition to the French war in 1678, to "a jealousy that the king indeed intended to raise an army, but never designed to go on with the war; and to say the truth, some of the king's own party were not very sure of the contrary." [705] Dalrymple, p. 129. The immediate cause of those intrigues was the indignation of Louis at the Princess Mary's marriage. That event which, as we know from James himself, was very suddenly brought about, took the King of France by surprise. Charles apologised for it to Barillon, by saying, "I am the only one of my party, except my brother."--P. 125. This, in fact, was the secret of his apparent relinquishment of French interests at different times in the latter years of his reign; he found it hard to kick constantly against the pricks, and could employ no minister who went cordially along with his predilections. He seems too at times, as well as the Duke of York, to have been seriously provoked at the unceasing encroachments of France, which exposed him to so much vexation at home. The connection with Lords Russell and Hollis began in March 1678, though some of the opposition had been making advances to Barillon in the preceding November. Pp. 129, 131. See also _Copies and Extracts of some Letters written to and from the Earl of Danby_, published in 1716; whence it appears that Montagu suspected the intrigues of Barillon, and the mission of Rouvigny, Lady Russell's first cousin, for the same purpose, as early as Jan. 1678; and informed Danby of it. Pp. 50, 53, 59. [706] Courtin, the French ambassador who preceded Barillon, had been engaged through great part of the year 1677 in a treaty with Charles for the prorogation or dissolution of parliament. After a long chaffering, the sum was fixed at 2,000,000 livres; in consideration of which the King of England pledged himself to prorogue parliament from December to April 1678. It was in consequence of the subsidy being stopped by Louis, in resentment of the Princess Mary's marriage, that parliament, which had been already prorogued till April, was suddenly assembled in February. Dalrymple, p. 111. It appears that Courtin had employed French money to bribe members of the Commons in 1677 with the knowledge of Charles; assigning as a reason, that Spain and the emperor were distributing money on the other side. In the course of this negotiation, he assured Charles that the King of France was always ready to employ all his forces for the confirmation and augmentation of the royal authority in England, so that he should always be master of his subjects, and not depend upon them. [707] See what Temple says of this (p. 460): the king raised 20,000 men in the spring of 1678, and seemed ready to go into the war; but all was spoiled by a vote, on Clarges's motion, that no money should be granted till satisfaction should be made as to religion. This irritated the king so much that he determined to take the money which France offered him; and he afterwards almost compelled the Dutch to sign the treaty; so much against the Prince of Orange's inclinations, that he has often been charged, though unjustly, with having fought the battle of St. Denis after he knew that the peace was concluded. Danby also, in his vindication (published in 1679, and again in 1710; see _State Trials_, ii. 634), lays the blame of discouraging the king from embarking in the war on this vote of the Commons. And the author of the _Life of James II._ says very truly, that the Commons "were in reality more jealous of the king's power than of the power of France; for, notwithstanding all their former warm addresses for hindering the growth of the power of France, when the king had no army, now that he had one, they passed a vote to have it immediately disbanded; and the factious party, which was then prevalent among them, made it their only business to be rid of the duke, to pull down the ministers, and to weaken the Crown."--P. 512. In defence of the Commons it is to be urged that, if they had any strong suspicion of the king's private intrigues with France for some years past, as in all likelihood they had, common prudence would teach them to distrust his pretended desire for war with her; and it is, in fact, most probable, that his real object was to be master of a considerable army. [708] The memorial of Blancard to the Prince of Orange, quoted by Dalrymple (p. 201) contains these words: "Le roi auroit été bien faché qu'il eut été absolu dans ses états; l'un de ses plus constants maximes depuis son rétablissement ayant été, de le diviser d'avec son parlement, et de se servir tantôt de l'un, tantôt de l'autre, toujours par argent pour parvenir à ses fins." [709] Ralph, p. 116; _Oeuvres de Louis XIV._ ii. 204, and v. 67, where we have a curious and characteristic letter of the king to d'Estrades in Jan. 1662, when he had been provoked by some high language Clarendon had held about the right of the flag. [710] The letters of Barillon in Dalrymple (pp. 134, 136, 140) are sufficient proofs of this. He imputes to Danby in one place (p. 142) the design of making the king absolute, and says: "M. le duc d'York se croit perdu pour sa religion, si l'occasion présente ne lui sert à soumettre l'Angleterre; c'est une entreprise fort hardie, et dont le succès est fort doutex." Of Charles himself he says: "Le roi d'Angleterre balance encore à se porter à l'extremité; son humeur répugne fort au dessein de changer le gouvernement. Il est néanmoins entrainé par M. le duc d'York et par le grand trésorier; mais dans le fond il aimeroit mieux que la paix le mît en état de demeurer en repos, et rétablir ses affaires, c'est à dire, un bon revenu; et je crois qu'il ne se soucie pas beaucoup d'être plus absolu qu'il est. Le duc et le trésorier connoissent bien à qui ils ont affaire, et craignent d'être abandonnés par le roi d'Angleterre aux premiers obstacles considérables qu'ils trouveront au dessein de relever l'autorité royale en Angleterre." On this passage it may be observed, that there is reason to believe there was no co-operation, but rather a great distrust at this time between the Duke of York and Lord Danby. But Barillon had no doubt taken care to infuse into the minds of the opposition those suspicions of that minister's designs. [711] Barillon appears to have favoured the opposition rather than the Duke of York, who urged the keeping up of the army. This was also the great object of the king, who very reluctantly disbanded it in Jan. 1679. Dalrymple, 207, etc. [712] This delicate subject is treated with great candour as well as judgment by Lord John Russell, in his _Life of William Lord Russell_. [713] _Parl. Hist._ 1035; Dalrymple, 200. [714] Louis XIV. tells us, that Sidney had made proposals to France in 1666 for an insurrection, and asked 100,000 crowns to effect it; which was thought too much for an experiment. He tried to persuade the ministers, that it was against the interest of France that England should continue a monarchy. _Oeuvres de Louis XIV._ ii. 204. [715] Dalrymple, 162. [716] His exclamation at Barillon's pressing the reduction of the army to 8000 men is well known: "God's fish! are all the King of France's promises to make me master of my subjects come to this! or does he think that a matter to be done with 8000 men!" Temple says, "He seemed at this time (May 1678) more resolved to enter into the war than I had ever before seen or thought him." [717] Dalrymple, 178 _et post_. [718] _Memoirs relating to the Impeachment of the Earl of Danby_, 1710, pp. 151, 227; _State Trials_, vol. xi. [719] The violence of the next House of Commons, who refused to acquiesce in Danby's banishment, to which the Lords had changed their bill of attainder, may seem to render this very doubtful. But it is to be remembered that they were exasperated by the pardon he had clandestinely obtained, and pleaded in bar of their impeachment. [720] The impeachment was carried by 179 to 116, Dec. 19. A motion (Dec. 21) to leave out the word traitorously was lost by 179 to 141. [721] Lords' Journals, Dec. 26, 1678. Eighteen peers entered their protests; Halifax, Essex, Shaftesbury, etc. [722] _State Trials_, vi. 351 _et post_; Hatsell's _Precedents_, iv. 176. [723] Lords' Journals, April 16. [724] "The lord privy seal, Anglesea, in a conference between the two houses," said, "that, in the transaction of this affair, were two great points gained by this House of Commons: the first was, that impeachments made by the Commons in one parliament continued from session to session, and parliament to parliament, notwithstanding prorogations or dissolutions: the other point was, that in cases of impeachments, upon special matter shown, if the modesty of the party directs him not to withdraw, the Lords admit that of right they ought to order him to withdraw, and that afterwards he ought to be committed. But he understood that the Lords did not intend to extend the points of withdrawing and committing to general impeachments without special matter alleged; else they did not know how many might be picked out of their house on a sudden." Shaftesbury said, indecently enough, that they were as willing to be rid of the Earl of Danby as the Commons; and cavilled at the distinction between general and special impeachments. Commons' Journals, April 12, 1679. On the impeachment of Scroggs for treason, in the next parliament, it was moved to commit him; but the previous question was carried, and he was admitted to bail; doubtless because no sufficient matter was alleged. Twenty peers protested. Lords' Journals, Jan. 7, 1681. [725] Lords' Journals, April 25; _Parl. Hist._ 1121, etc. [726] Lords' Journals, May 9, 1679. [727] Lords' Journals, May 10 and 11. After the former vote 50 peers, out of 107 who appear to have been present, entered their dissent; and another, the Earl of Leicester, is known to have voted with the minority. The unusual strength of opposition, no doubt, produced the change next day. [728] May 13. Twenty-one peers were entered as dissentient. The Commons inquired whether it were intended by this that the bishops should vote on the pardon of Danby, which the upper house declined to answer, but said they could not vote on the trial of the five popish lords, May 15, 17, 27. [729] See the report of a committee in Journals, May 26; or Hatsell's _Precedents_, iv. 374. [730] 13 W. III. c. 2. [731] _Parl. Hist._ vii. 283. Mr. Lechmere, a very ardent whig, then solicitor-general, and one of the managers on the impeachment, had most confidently denied this prerogative. _Id._ 233. [732] Instead of the words in the order, "from the proceedings of any other court," the following are inserted, "or any other business wherein their lordships act as in a court of judicature, and not in their legislative capacity." The importance of this alteration as to the question of impeachment is obvious. [733] Lords' Journals. [734] Lords' Journals. Seventy-eight peers were present. [735] _Id._ 4th Dec. 1680. [736] Lords' Journ. March 24, 1681. The very next day the Commons sent a message to demand judgment on the impeachment against him. Com. Journ. March 25. [737] Shower's _Reports_, ii. 335. "He was bailed to appear at the Lords' bar the first day of the then next parliament." The catholic lords were bailed the next day. This proves that the impeachment was not held to be at an end. [738] Lords' Journals, May 22, 1685. [739] Upon considering the proceedings in the House of Lords on this subject, Oct. 6 and 30, 1690, and especially the protest signed by eight peers on the latter day, there can be little doubt that their release had been chiefly grounded on the act of grace, and not on the abandonment of the impeachment. [740] Bishop Parker is not wrong in saying that the House of Commons had so long accustomed themselves to strange fictions about popery, that, upon the first discovery of Oates's plot, they readily believed everything he said; for they had long expected whatever he declared. _Hist. sui temp._ p. 248 (of the translation). [741] _Parl. Hist._ 1024, 1035; _State Trials_, vii. 1; Kennet, 327, 337, 351; North's _Examen_, 129, 177; Ralph, 386; Burnet, i. 555. Scroggs tried Coleman with much rudeness and partiality; but his summing up in reference to the famous passage in the letters is not deficient in acuteness. In fact, this not only convicted Coleman, but raised a general conviction of the truth of a plot--and a plot there was, though not Oates's. [742] _Examen_, p. 196. [743] R. v. Farwell and others; _State Trials_, viii. 1361. They were indicted for publishing some letters to prove that Godfrey had killed himself. They defended themselves by calling witnesses to prove the truth of the fact, which, though in a case of libel, Pemberton allowed. But their own witnesses proved that Godfrey's body had all the appearance of being strangled. The Roman catholics gave out, at the time of Godfrey's death, that he had killed himself; and hurt their own cause by foolish lies. North's _Examen_, p. 200. [744] It was deposed by a respectable witness, that Godfrey entertained apprehensions on account of what he had done as to the plot, and had said, "On my conscience, I believe I shall be the first martyr." _State Trials_, vii. 168. These little additional circumstances, which are suppressed by later historians, who speak of the plot as unfit to impose on any but the most bigoted fanatics, contributed to make up a body of presumptive and positive evidence, from which human relief is rarely withheld. It is remarkable that the most acute and diligent historian we possess for those times, Ralph, does not in the slightest degree pretend to account for Godfrey's death; though, in his general reflections on the plot (p. 555) he relies too much on the assertions of North and l'Estrange. [745] _State Trials_, vii. 259; North's _Examen_, 240. [746] _State Trials_, vol. vii. _passim_. On the trial of Green, Berry, and Hill, for Godfrey's murder, part of the story for the prosecution was, that the body was brought to Hill's lodgings on the Saturday, and remained there till Monday. The prisoner called witnesses who lodged in the same house, to prove that it could not have been there without their knowledge. Wild, one of the judges, assuming, as usual, the truth of the story as beyond controversy, said it was very suspicious that they should see or hear nothing of it; and another, Dolben, told them it was well they were not indicted. _Id._ 199. Jones, summing up the evidence on Sir Thomas Gascoigne's trial at York (an aged catholic gentleman, most improbably accused of accession to the plot), says to the jury: "Gentlemen, you have the king's witness on his oath; he that testifies against him is barely on his word, and he is a papist" (_Id._ 1039): thus deriving an argument from an iniquitous rule, which, at that time, prevailed in our law, of refusing to hear the prisoner's witnesses upon oath. Gascoigne, however, was acquitted. It would swell this note to an unwarrantable length, were I to extract so much of the trials as might fully exhibit all the instances of gross partiality in the conduct of the judges. I must, therefore, refer my readers to the volume itself, a standing monument of the necessity of the revolution; not only as it rendered the judges independent of the Crown, but as it brought forward those principles of equal and indifferent justice, which can never be expected to flourish but under the shadow of liberty. [747] _State Trials_, 119, 315, 344. [748] Roger North, whose long account of the popish plot is, as usual with him, a medley of truth and lies, acuteness and absurdity, represents his brother, the chief justice, as perfectly immaculate in the midst of this degradation of the bench. The _State Trials_, however, show that he was as partial and unjust towards the prisoners as any of the rest, till the government thought it necessary to interfere. The moment when the judges veered round, was on the trial of Sir George Wakeman, physician to the queen. Scroggs, who had been infamously partial against the prisoners upon every former occasion, now treated Oates and Bedloe as they deserved, though to the aggravation of his own disgrace. _State Trials_, vii. 619-686. [749] _State Trials_, 1552; _Parl. Hist._ 1229. Stafford, though not a man of much ability, had rendered himself obnoxious as a prominent opposer of all measures intended to check the growth of popery. His name appears constantly in protests upon such occasions; as, for instance, March 3, 1678, against the bill for raising money for a French war. Reresby praises his defence very highly. P. 108. The Duke of York, on the contrary, or his biographer, observes: "Those who wished Lord Stafford well were of opinion that, had he managed the advantages which were given him with dexterity, he would have made the greatest part of his judges ashamed to condemn him; but it was his misfortune to play his game worst, when he had the best cards."--P. 637. [750] I take this from extracts out of those sermons, contained in a Roman catholic pamphlet printed in 1687, and entitled "Good Advice to the Pulpits." The protestant divines did their cause no good by misrepresentation of their adversaries, and by their propensity to rudeness and scurrility. The former fault indeed existed in a much greater degree on the opposite side, but by no means the latter. See also a treatise by Barlow, published in 1679, entitled, "Popish Principles pernicious to Protestant Princes." [751] _Parl. Hist._ 1040. [752] See Marvell's "Seasonable Argument to persuade all the grand Juries in England to petition for a new Parliament." He gives very bad characters of the principal members on the court side; but we cannot take for granted all that comes from so unscrupulous a libeller. Sir Harbottle Grimstone had first thrown out, in the session of 1675, that a standing parliament was as great a grievance as a standing army, and that an application ought to be made to the king for a dissolution. This was not seconded; and met with much disapprobation from both sides of the house. _Parl. Hist._ vii. 64. But the country party, in two years' time, had changed their views, and were become eager for a dissolution. An address to that effect was moved in the House of Lords, and lost by only two voices, the Duke of York voting for it. _Id._ 800. This is explained by a passage in Coleman's _Letters_; where that intriguer expresses his desire to see parliament dissolved, in the hope that another would be more favourable to the toleration of catholics. This must mean that the dissenters might gain an advantage over the rigorous church of England men, and be induced to come into a general indulgence. [753] This test, 30 Car. 2, stat. 2, is the declaration subscribed by members of both houses of parliament on taking their seats, that there is no transubstantiation of the elements in the Lord's supper; and that the invocation of saints, as practised in the church of Rome, is idolatrous. The oath of supremacy was already taken by the Commons, though not by the Lords; and it is a great mistake to imagine that catholics were legally capable of sitting in the lower house before the act of 1679. But it had been the aim of the long parliament in 1642 to exclude them from the House of Lords; and this was of course revived with greater eagerness, as the danger from their influence grew more apparent. A bill for this purpose passed the Commons in 1675, but was thrown out by the peers. Journals, May 14, Nov. 8. It was brought in again in the spring of 1678. _Parl. Hist._ 990. In the autumn of the same year it was renewed, when the Lords agreed to the oath of supremacy, but omitted the declaration against transubstantiation, so far as their own house was affected by it. Lords' Journals, Nov. 20, 1678. They also excepted the Duke of York from the operation of the bill; which exception was carried in the Commons by two voices. _Parl. Hist._ 1040. The Duke of York and seven more lords protested. The violence of those times on all sides will account for this theological declaration; but it is more difficult to justify its retention at present. Whatever influence a belief in the pope's supremacy may exercise upon men's politics, it is hard to see how the doctrine of transubstantiation can directly affect them; and surely he who renounces the former, cannot be very dangerous on account of his adherence to the latter. Nor is it less extraordinary to demand, from many of those who usually compose a House of Commons, the assertion that the practice of the church of Rome in the invocation of saints is idolatrous; since, even on the hypothesis that a country gentleman has a clear notion of what is meant by idolatry, he is, in many cases, wholly out of the way of knowing what the church of Rome or any of its members believe or practise. The invocation of saints, as held and explained by that church in the council of Trent, is surely not idolatrous, with whatever error it may be charged; but the practice at least of uneducated Roman catholics seems fully to justify the declaration; understanding it to refer to certain superstitions, countenanced or not eradicated by their clergy. I have sometimes thought that the legislator of a great nation sets off oddly by solemnly professing theological positions about which he knows nothing, and swearing to the possession of property which he does not enjoy. [1827.] [754] The second reading of the exclusion bill was carried, May 21, 1679, by 207 to 128. The debates are in _Parliamentary History_, 1125 _et post_. In the next parliament it was carried without a division. Sir Leoline Jenkins alone seems to have taken the high ground, that "parliament cannot disinherit the heir of the Crown; and that, if such an act should pass, it would be invalid in itself."--_Id._ 1191. [755] While the exclusion bill was passing the Commons, the king took the pains to speak himself to almost every lord, to dissuade him from assenting to it when it should come up; telling them, at the same time, let what would happen, he would never suffer such a villainous bill to pass. _Life of James_, 553. [756] Ralph, p. 498. The atrocious libel, entitled, "An Appeal from the Country to the City," published in 1679, and usually ascribed to Ferguson (though said in _Biogr. Brit._ art. L'Estrange, to be written by Charles Blount), was almost sufficient of itself to excuse the return of public opinion towards the throne. _State Tracts_, temp. Car. II.; Ralph, i. 476; _Parl. Hist._ iv. Appendix. The king is personally struck at in this tract with the utmost fury: the queen is called Agrippina, in allusion to the infamous charges of Oates; Monmouth is held up as the hope of the country. "He will stand by you, therefore you ought to stand by him. He who hath the worst title, always makes the best king." One Harris was tried for publishing this pamphlet. The jury at first found him guilty of selling; an equivocal verdict, by which they probably meant to deny, or at least to disclaim, any assertion of the libellous character of the publication. But Scroggs telling them it was their province to say guilty or not guilty, they returned a verdict of guilty. _State Trials_, vii. 925. Another arrow dipped in the same poison was a "Letter to a Person of Honour concerning the Black Box." _Somers Tracts_, viii. 189. The story of a contract of marriage between the king and Mrs. Waters, Monmouth's mother, concealed in a black box, had lately been current; and the former had taken pains to expose its falsehood by a public examination of the gentleman whose name had been made use of. This artful tract is intended to keep up the belief of Monmouth's legitimacy, and even to graft it on the undeniable falsehood of that tale; as if it had been purposely fabricated to delude the people by setting them on a wrong scent. See also another libel of the same class, p. 197. Though Monmouth's illegitimacy is past all question, it has been observed by Harris that the Princess of Orange, in writing to her brother about Mrs. Waters, in 1655, twice names her as his wife. Thurloe, i. 665, quoted in Harris's _Lives_, iv. 168. But though this was a scandalous indecency on her part, it proves no more than that Charles, like other young men in the heat of passion, was foolish enough to give that appellation to his mistress; and that his sister humoured him in it. Sidney mentions a strange piece of Monmouth's presumption. When he went to dine with the city in October 1680, it was remarked that the bar, by which the heralds denote illegitimacy, had been taken off the royal arms on his coach. _Letters to Saville_, p. 54. [757] _Life of James_, 592 _et post_. Compare Dalrymple, p. 265 _et post_. Barillon was evidently of opinion that the king would finally abandon his brother. Sunderland joined the Duchess of Portsmouth, and was one of the thirty peers who voted for the bill in November 1680. James charges Godolphin also with deserting him. P. 615. But his name does not appear in the protest signed by twenty-five peers; though that of the privy seal, Lord Anglesea, does. The Duchess of Portsmouth sat near the Commons at Stafford's trial, "dispensing her sweetmeats and gracious looks among them."--P. 638. [758] _Life of James_, p. 657. [759] Il est persuadé que l'autorité royale ne se peut rétablir en Angleterre que par une guerre civile. Aug. 19, 1680. Dalrymple, 265. [760] Dalrymple, 277. Nov. 1680. [761] Marvell's "Growth of Popery," in _State Tracts_, temp. Car. II. p. 98; _Parl. Hist._ 853. The second reading was carried by 127 to 88. Serjeant Maynard, who was probably not in the secrets of his party, seems to have been surprised at their opposition. An objection with Marvell, and not by any means a bad one, would have been, that the children of the royal family were to be consigned for education to the sole government of bishops. The Duke of York, and thirteen other peers, protested against this bill, not all of them from the same motives, as may be collected from their names. Lords' Journals, 13th and 15th March 1679. [762] Lords Russell and Cavendish, Sir W. Coventry and Sir Thomas Littleton, seem to have been in favour of limitations. Lord J. Russell, p. 42; Ralph, 446; Sidney's _Letters_, p. 32. Temple and Shaftesbury, for opposite reasons, stood alone in the council against the scheme of limitations. Temple's _Memoirs_. [763] Commons' Journals, 23rd Nov. 1680, 8th Jan. 1681. [764] _Life of James_, 634, 671; Dalrymple, p. 307. [765] Dalrymple, p. 301; _Life of James_, 660, 671. The duke gave himself up for lost when he heard of the clause in the king's speech declaring his readiness to hearken to any expedient but the exclusion. Birch and Hampden, he says, were in favour of this; but Fitzharris's business set the house in a flame, and determined them to persist in their former scheme. Reresby says (p. 19, confirmed by _Parl. Hist._ 132) it was supported by Sir Thomas Littleton, who is said to have been originally against the bill of exclusion, as well as Sir William Coventry. Sidney's _Letters_, p. 32. It was opposed by Jones, Winnington, Booth, and, if the _Parliamentary History_ be right, by Hampden and Birch. [766] Temple's _Memoirs_. He says their revenues in land or offices amounted to £300,000 per annum; whereas those of the House of Commons seldom exceeded £400,000. The king objected much to admitting Halifax; but himself proposed Shaftesbury, much against Temple's wishes. The funds in Holland rose on the news. Barillon was displeased, and said it was making "des états, et non des conseils;" which was not without weight, for the king had declared he would take no measure, nor even choose any new counsellor, without their consent. But the extreme disadvantage of the position in which this placed the Crown, rendered it absolutely certain that it was not submitted to with sincerity. Lady Portsmouth told Barillon the new ministry was formed in order to get money from parliament. Another motive, no doubt, was to prevent the exclusion bill. [767] _Life of James_, 558. On the king's sudden illness, Aug. 22, 1679, the ruling ministers, Halifax, Sunderland, and Essex, alarmed at the anarchy which might come on his death, of which Shaftesbury and Monmouth would profit, sent over for the duke; but soon endeavoured to make him go into Scotland, and, after a struggle against the king's tricks to outwit them, succeeded in this object. _Id._ p. 570 _et post_. [768] Temple; Reresby, p. 89. "So true it is," he says, "that there is no wearing the court and country livery together." Thus also Algernon Sidney, in his letters to Saville, p. 16. "The king certainly inclines not to be so stiff as formerly in advancing only those that exalt prerogative; but the Earl of Essex, and some others that are coming into play thereupon, cannot avoid being suspected of having intentions different from what they have hitherto professed." He ascribed the change of ministry at this time to Sunderland: "if he and two more [Essex and Halifax] can well agree among themselves, I believe they will have the management of almost all businesses, and may bring much honour to themselves and good to our nation." April 21, 1679. But he writes afterwards (Sept. 8) that Halifax and Essex were become very unpopular. P. 50. "The bare being preferred," says Secretary Coventry, "maketh some of them suspected, though not criminal." Lord J. Russell's _Life of Lord Russell_, p. 90. [769] See the protests in 1679, _passim_. [770] Temple's _Memoirs_; _Life of James_, 581. [771] Dalrymple, pp. 230, 237. [772] See Roger North's account of this court stratagem. _Examen of Kennet_, 546. The proclamation itself, however, in the _Gazette_, 12th Dec. 1679, is more strongly worded than we should expect from North's account of it, and is by no means limited to _tumultuous_ petitions. [773] _London Gazettes_ of 1680, _passim_. [774] David Lewis was executed at Usk for saying mass, Aug. 27, 1679. _State Trials_, vii. 256. Other instances occur in the same volume; see especially pp. 811, 839, 849, 587. Pemberton was more severe and unjust towards these unfortunate men than Scroggs. The king, as his brother tells us, came unwillingly into these severities to prevent worse. _Life of James_, 583. [775] Journals, _passim_; North's _Examen_, 377, 561. [776] They went a little too far, however, when they actually seated Sir William Waller in Withens's place for Westminster. Ralph, 514. [777] Journals, Dec. 24, 1680. [778] _Parl. Hist._ i. 174. [779] Reresby's _Memoirs_, 106. Lord Halifax and he agreed, he says, on consideration, that the court party were not only the most numerous, but the most active and wealthy part of the nation. [780] It was carried by 219 to 95 (17th Nov.), to address the king to remove Lord Halifax from his councils and presence for ever. They resolved, _nem. con._, that no member of that house should accept of any office or place of profit from the Crown, or any promise of one, during such time as he should continue a member; and that all offenders herein should be expelled. 30th Dec. They passed resolutions against a number of persons by name, whom they suspected to have advised the king not to pass the bill of exclusion. 7th Jan. 1680. They resolved unanimously (10th Jan.), that it is the opinion of this house, that the city of London was burnt in the year 1666 by the papists, designing thereby to introduce popery and arbitrary power into this kingdom. They were going on with more resolutions in the same spirit, when the usher of the black rod appeared to prorogue them. _Parl. Hist._ [781] Commons' Journals, March 26, 1681. [782] _Parl. Hist._ ii. 54. Lord Hale doubted whether this were a statute. But the judges, in 1689, on being consulted by the Lords, inclined to think that it was one; arguing, I suppose, from the words "in full parliament," which have been held to imply the presence and assent of the Commons. [783] Hatsell's _Precedents_, iv. 54, and Appendix, 347; _State Trials_, viii. 236, and xii. 1218. [784] _Commentaries_, vol. iv. c. 19. [785] Ralph, 564 _et post_; _State Trials_, 223, 427; North's _Examen_, 274. Fitzharris was an Irish papist, who had evidently had interviews with the king through Lady Portsmouth. One Hawkins, afterwards made Dean of Chichester for his pains, published a narrative of this case full of falsehoods. [786] _State Trials_, viii. 759. Roger North's remark on this is worthy of him; "having sworn false, as it is manifest some did before to one purpose, it is more likely they swore true to the contrary." _Examen_, p. 117. And Sir Robert Sawyer's observation to the same effect is also worthy of him. On College's trial, Oates, in his examination for the prisoner, said, that Turberville had changed sides; Sawyer, as counsel for the Crown, answered, "Dr. Oates, Mr. Turberville has not changed sides, you have; he is still a witness for the king, you are against him." _State Trials_, viii. 639. The opposite party were a little perplexed by the necessity of refuting testimony they had relied upon. In a dialogue, entitled "Ignoramus Vindicated," it is asked, why were Dr. Oates and others believed against the papists? and the best answer the case admits is given: "Because his and their testimony was backed by that undeniable evidence of Coleman's papers, Godfrey's murder, and a thousand other pregnant circumstances, which makes the case much different from that when people, of very suspected credit, swear the grossest improbabilities." But the same witnesses, it is urged, had lately been believed against the papists. "What! then," replies the advocate of Shaftesbury, "may not a man be very honest and credible at one time, and six months after, by necessity, subornation, malice, or twenty ways, become a notorious villain?" [787] The true question for a grand juror to ask himself seems to be this: Is the evidence such as that, if the prisoner can prove nothing to the contrary, he ought to be convicted? However, where any considerable doubt exists as to this, as a petty juror ought to acquit, so a grand juror ought to find the indictment. [788] Roger North, and the prerogative writers in general, speak of this inquest as a scandalous piece of perjury, enough to justify the measures soon afterwards taken against the city. But Ralph, who, at this period of history, is very impartial, seems to think the jury warranted by the absurdity of the depositions. It is to be remembered that the petty juries had shown themselves liable to intimidation, and that the bench was sold to the court. In modern times, such an ignoramus could hardly ever be justified. There is strong reason to believe, that the court had recourse to subornation of evidence against Shaftesbury. Ralph, 140 _et post_. And the witnesses were chiefly low Irishmen, in whom he was not likely to have placed confidence. As to the association found among Shaftesbury's papers, it was not signed by himself, nor, as I conceive, treasonable, only binding the associators to oppose the Duke of York, in case of his coming to the crown. _State Trials_, viii. 786. See also 827 and 835. [789] If we may believe James II., the populace hooted Shaftesbury when he was sent to the Tower. Macpherson, 124; _Life of James_, 688. This was an improvement on the _odit damnatos_. They rejoiced, however, much more, as he owns, at the ignoramus. P. 714. [790] See College's case in _State Trials_, viii. 549, and Hawles's remarks on it, 723; Ralph, 626. It is one of the worst pieces of judicial iniquity that we find in the whole collection. The written instructions he had given to his counsel before the trial were taken away from him, in order to learn the grounds of his defence. North and Jones, the judges before whom he was tried, afforded him no protection. But besides this, even if the witnesses had been credible, it does not appear to me that the facts amounted to treason. Roger North outdoes himself in his justification of the proceedings on this trial. _Examen_, p. 587. What would this man have been in power, when he writes thus in a sort of proscription twenty years after the revolution! But in justice it should be observed that his portraits of North and Jones (_Id._ 512 and 517) are excellent specimens of his inimitable talent for Dutch painting. [791] _London Gazettes_, 1681, _passim_. Ralph, 592, has spoken too strongly of their servility, as if they showed a disposition to give up altogether every right and privilege to the Crown. This may be true in a very few instances, but is by no means their general tenor. They are exactly high tory addresses, and nothing more. [792] _State Trials_, viii. 447. Chief-Justice Pemberton, by whom he was tried, had strong prejudices against the papists, though well enough disposed to serve the court in some respects. [793] The king, James says in 1679, was convinced of the falsehood of the plot, "while the seeming necessity of his affairs made this unfortunate prince, for so he may well be termed in this conjuncture, think he could not be safe but by consenting every day to the execution of those he knew in his heart to be most innocent; and as for that notion of letting the law take its course, it was such a piece of casuistry as had been fatal to the king his father," etc. 562. If this was blamable in 1679, how much more in 1681? Temple relates, that having objected to leaving some priests to the law, as the House of Commons had desired in 1679, Halifax said he would tell every one he was a papist, if he did not concur; and that the plot must be treated as if it were true, whether it was so or not. P. 339 (folio edit.). A vile maxim indeed! But as Halifax never showed any want of candour or humanity, and voted Lord Stafford not guilty next year, we may doubt whether Temple has represented this quite exactly. In reference to Lord Stafford, I will here notice that Lord John Russell, in a passage deserving very high praise, has shown rather too much candour in censuring his ancestor (p. 140) on account of the support he gave (if in fact he did so, for the evidence seems weak) to the objection raised by the sheriffs, Bethell and Cornish, with respect to the mode of Stafford's execution. The king having remitted all the sentence except the beheading, these magistrates thought fit to consult the House of Commons. Hume talks of Russell's seconding this "barbarous scruple," as he calls it, and imputes it to faction. But, notwithstanding the epithet, it is certain that the only question was between death by the cord and the axe; and if Stafford had been guilty, as Lord Russell was convinced, of a most atrocious treason, he could not deserve to be spared the more ignominious punishment. The truth is, which seems to have escaped both these writers, that if the king could remit a part of the sentence upon a parliamentary impeachment, it might considerably affect the question whether he could not grant a pardon, which the Commons had denied. [794] See this petition, _Somers Tracts_, viii. 144. [795] _State Trials_, viii. 1039-1340; Ralph, 717. The majority was but 104 to 86; a division honourable to the spirit of citizens. [796] North's _Examen_, 626. [797] Lady Russell's opinion was, that "it was no more than what her lord confessed--talk; and it is possible that talk going so far as to consider, if a remedy for supposed evils might be sought, how it could be formed." _Life of Lord Russell_, p. 266. It is not easy, however, to talk long in this manner about the _how_ of treason, without incurring the penalties of it. [798] See this business well discussed by the acute and indefatigable Ralph, p. 722, and by Lord John Russell, p. 253. See also _State Trials_, ix. 358 _et post_. There appears no cause for doubting the reality of what is called the Ryehouse plot. The case against Walcot (_Id._ 519) was pretty well proved; but his own confession completely hanged him and his friends too. His attainder was reversed after the revolution, but only on account of some technical errors, not essential to the merits of the case. [799] _State Trials_, ix. 577. Lord Essex cut his throat in the Tower. He was a man of the most excellent qualities, but subject to constitutional melancholy which overcame his fortitude; an event the more to be deplored, as there seems to have been no possibility of his being convicted. A suspicion, as is well known, obtained credit with the enemies of the court, that Lord Essex was murdered; and some evidence was brought forward by the zeal of one Braddon. The late editor of the _State Trials_ seems a little inclined to revive this report, which even Harris (_Life of Charles_, p. 352) does not venture to accredit; and I am surprised to find Lord John Russell observe, "It would be idle, at the present time, to pretend to give any opinion on the subject."--P. 182. This I can by no means admit. We have, on the one side, some testimonies by children, who frequently invent and persist in falsehoods with no conceivable motive. But, on the other hand, we are to suppose, that Charles II. and the Duke of York caused a detestable murder to be perpetrated on one towards whom they had never shown any hostility, and in whose death they had no interest. Each of these princes had faults enough; but I may venture to say that they were totally incapable of such a crime. One of the presumptive arguments of Braddon, in a pamphlet published long afterwards, is, that the king and his brother were in the Tower on the morning of Lord Essex's death. If this leads to anything, we are to believe that Charles the Second, like the tyrant in a Grub Street tragedy, came to kill his prisoner with his own hands. Any man of ordinary understanding (which seems not to have been the case with Mr. Braddon) must perceive that the circumstance tends to repel suspicion rather than the contrary. See the whole of this, including Braddon's pamphlet, in _State Trials_, ix. 1127. [800] _State Trials_, 615. Sawyer told Lord Russell, when he applied to have his trial put off, that he would not have given the king an hour's notice to save his life. _Id._ 582. Yet he could not pretend that the prisoner had any concern in the assassination plot. [801] The act annulling Lord Russell's attainder recites him to have been "wrongfully convicted by partial and unjust constructions of law." _State Trials_, ix. 695. Several pamphlets were published after the revolution by Sir Robert Atkins and Sir John Hawles against the conduct of the court in this trial, and by Sir Bartholomew Shower in behalf of it. These are in the _State Trials_. But Holt, by laying down the principle of constructive treason in Ashton's case, established for ever the legality of Pemberton's doctrine, and indeed carried it a good deal further. [802] There seems little doubt, that the juries were packed through a conspiracy of the sheriffs with Burton and Graham, solicitors for the Crown. _State Trials_, ix. 932. These two men ran away at the revolution; but Roger North vindicates their characters, and those who trust in him may think them honest. [803] _State Trials_, ix. 818. [804] _Id._ 846. Yet in summing up the evidence, he repeated all West and Keeling had thus said at second-hand, without reminding the jury that it was not legal testimony. _Id._ 899. It would be said by his advocates, if any are left, that these witnesses must have been left out of the question, since there could otherwise have been no dispute about the written paper. But they were undoubtedly intended to prop up Howard's evidence, which had been so much shaken by his previous declaration, that he knew of no conspiracy. [805] This is pointed out, perhaps for the first time, in an excellent modern law-book, Phillipps's _Law of Evidence_. Yet the act for the reversal of Sidney's attainder declares in the preamble, that "the paper, supposed to be in his handwriting, was not proved by the testimony of any one witness to be written by him, but the jury was directed to believe it by comparing it with other writings of the said Algernon." _State Trials_, 997. This does not appear to have been the case; and though Jefferies is said to have garbled the manuscript trial before it was printed (for all the trials, at this time, were published by authority, which makes them much better evidence against the judges than for them), yet he can hardly have substituted so much testimony without its attracting the notice of Atkins and Hawles, who wrote after the revolution. However, in Hayes's case, _State Trials_, x. 312, though the prisoner's handwriting to a letter was proved in the usual way by persons who had seen him write, yet this letter was also shown to the jury, along with some of his acknowledged writing, for the purpose of their comparison. It is possible, therefore, that the same may have been done on Sidney's trial, though the circumstance does not appear. Jefferies indeed says, "comparison of hands was allowed for good proof in Sidney's case." _Id._ 313. But I do not believe that the expression was used in that age so precisely as it is at present; and it is well known to lawyers that the rules of evidence on this subject have only been distinctly laid down within the memory of the present generation. [806] See Harris's _Lives_, v. 347. [807] _State Trials_, x. 105. [808] The grand jury of Northamptonshire, in 1683, "present it as very expedient and necessary for securing the peace of this country, that all ill affected persons may give security for the peace;" specifying a number of gentlemen of the first families, as the names of Montagu, Langham, etc., show. _Somers Tracts_, viii. 409. [809] Ralph, p. 768; Harris's _Lives_, v. 321. [810] This book of Sherlock, printed in 1684, is the most able treatise on that side. His proposition is that "sovereign princes, or the supreme power in any nation, in whomsoever placed, is in all cases irresistible." He infers from the statute 13 Car. II. declaring it unlawful, under any pretence, to wage war, even defensive against the king, that the supreme power is in him; for he who is unaccountable and irresistible, is supreme. There are some, he owns, who contend that the higher powers mentioned by St. Paul meant the law, and that when princes violate the laws, we may defend their legal authority against their personal usurpations. He answers this very feebly. "No law can come into the notion and definition of supreme and sovereign powers; such a prince is under the direction, but cannot possibly be said to be under the government of the law, because there is no superior power to take cognisance of his breach of it, and a law has no authority to govern where there is no power to punish."--P. 114. "These men think," he says (p. 126), "that all civil authority is founded in consent, as if there were no natural lord of the world, or all mankind came free and independent into the world. This is a contradiction to what at other times they will grant, that the institution of civil power and authority is from God; and indeed if it be not, I know not how any prince can justify the taking away the life of any man, whatever crime he has been guilty of. For no man has power of his own life, and therefore cannot give this power to another; which proves that the power of capital punishments cannot result from mere consent, but from a superior authority, which is lord of life and death." This is plausibly urged, and is not refuted in a moment. He next comes to an objection, which eventually he was compelled to admit, with some discredit to his consistency and disinterestedness. "'Is the power of victorious rebels and usurpers from God? Did Oliver Cromwell receive his power from God? then it seems it was unlawful to resist him too, or to conspire against him; then all those loyal subjects who refused to submit to him when he had got the power in his hands were rebels and traitors.' To this I answer, that the most prosperous rebel is not the higher powers, while our natural prince, to whom we owe obedience and subjection, is in being. And therefore, though such men may get the power into their hands by God's permission, yet not by God's ordinance; and he who resists them does not resist the ordinance of God, but the usurpations of men. In hereditary kingdoms, the king never dies, but the same minute that the natural person of one king dies, the crown descends upon the next of blood; and therefore, he who rebelleth against the father, and murders him, continues a rebel in the reign of the son, which commences with his father's death. It is otherwise, indeed, where none can pretend a greater title to the crown than the usurper, for there possession of power seems to give a right."--P. 127. Sherlock began to preach in a very different manner as soon as James showed a disposition to set up his own church. "It is no act of loyalty," he told the House of Commons, May 29, 1685, "to accommodate or compliment away our religion and its legal securities." _Good Advice to the Pulpits._ [811] P. 81. [812] P. 95. [813] Pp. 98, 100. [814] P. 100. [815] This treatise, subjoined to one of greater length, entitled the "Freeholder's Grand Inquest," was published in 1679; but the "Patriarcha" not till 1685. [816] P. 39. [817] P. 46. [818] Collier, 902; _Somers Tracts_, viii. 420. [819] Dalrymple, appendix 8; _Life of James_, 691. He pretended to come into a proposal of the Dutch for an alliance with Spain and the empire against the fresh encroachments of France, and to call a parliament for that purpose, but with no sincere intention, as he assured Barillon. "Je n'ai aucune intention d'assembler le parlement; ces sont des diables qui veulent ma ruine." Dalrymple, 15. [820] He took 100,000 livres for allowing the French to seize Luxemberg; after this he offered his arbitration, and on Spain's refusal, laid the fault on her, though already bribed to decide in favour of France. Lord Rochester was a party in all these base transactions. The acquisition of Luxemberg and Strasburg was of the utmost importance to Louis, as they gave him a predominating influence over the four Rhenish electors, through whom he hoped to procure the election of the dauphin as king of the Romans. _Id._ 36. [821] Dalrymple, appendix 74; Burnet; Mazure, _Hist. de la Révolution de 1688_, i. 340, 372. This is confirmed by, or rather confirms, the very curious notes found in the Duke of Monmouth's pocket-book when he was taken after the battle of Sedgemoor, and published in the appendix to Welwood's _Memoirs_. Though we should rather see more external evidence of their authority than, so far as I know, has been produced, they have great marks of it in themselves; and it is not impossible that, after the revolution, Welwood may have obtained them from the secretary of state's office. [822] It is mentioned by Mr. Fox, as a tradition in the Duke of Richmond's family, that the Duchess of Portsmouth believed Charles II. to have been poisoned. This I find confirmed in a letter read on the trial of Francis Francia, indicted for treason in 1715. "The Duchess of Portsmouth, who is at present here, gives a great deal of offence, as I am informed, by pretending to prove that the late King James had poisoned his brother Charles; it was not expected, that after so many years' retirement in France, she should come hither to revive that vulgar report, which at so critical a time cannot be for any good purpose." _State Trials_, xv. 948. It is almost needless to say that the suspicion was wholly unwarrantable. I have since been informed, on the best authority, that Mr. Fox did not derive his authority from a tradition in the Duke of Richmond's family, that of his own mother, as his editor had very naturally conjectured, but from his father, the first Lord Holland, who, while a young man travelling in France, had become acquainted with the Duchess of Portsmouth.